EX-4.4 2 e600099_ex4-4.txt EXHIBIT 4.4 CERTIFICATE NO. ______ CERTIFICATE FOR ______ RIGHTS RIGHTS CERTIFICATE EVIDENCING RIGHTS TO PURCHASE SHARES OF BENEFICIAL INTEREST ($1.00 par value per Share) OF WINTHROP REALTY TRUST (formerly FIRST UNION REAL ESTATE EQUITY AND MORTGAGE INVESTMENTS) (Organized Under the Laws of the State of Ohio) THE TERMS AND CONDITIONS OF THE RIGHTS OFFERING ARE SET FORTH IN THE PROSPECTUS, DATED ________ __, 2006 (THE "PROSPECTUS"), OF WINTHROP REALTY TRUST AND ARE INCORPORATED HEREIN BY REFERENCE. COPIES OF THE PROSPECTUS ARE AVAILABLE UPON REQUEST FROM NATIONAL CITY BANK, AS SUBSCRIPTION AGENT (THE "SUBSCRIPTION AGENT"). THIS RIGHTS CERTIFICATE OR A NOTICE OF GUARANTEED DELIVERY MUST BE RECEIVED BY THE SUBSCRIPTION AGENT WITH PAYMENT IN FULL BY 5:00 P.M., EASTERN STANDARD TIME, ON _____, 2006, UNLESS EXTENDED BY THE COMPANY (THE "EXPIRATION TIME"). THE ABILITY OF THE HOLDER HEREOF TO EXERCISE RIGHTS PURSUANT TO THE BASIC SUBSCRIPTION (AS DESCRIBED BELOW) OR TO PURCHASE COMMON SHARES (AS DESCRIBED BELOW) PURSUANT TO THE OVERSUBSCRIPTION PRIVILEGE WILL EXPIRE AT THE EXPIRATION TIME. RIGHTS NOT EXERCISED PRIOR TO THE EXPIRATION TIME WILL NO LONGER BE EXERCISABLE AND WILL HAVE NO VALUE. ANY EXERCISE OF RIGHTS PURSUANT TO THE BASIC SUBSCRIPTION AND ANY EXERCISE OF THE OVERSUBSCRIPTION PRIVILEGE ARE REVOCABLE UNTIL THE EXPIRATION TIME. THIS CERTIFIES THAT_______________________________________________________ is the registered holder of the number of non-transferable rights set forth above (the "Rights"), each of which entitles such owner to subscribe for and purchase (the "Basic Subscription") one Share of Beneficial Interest, $1.00 par value per share (the "Common Shares"), of Winthrop Realty Trust, a real estate investment trust organized under the laws of the State of Ohio (the "Company"), upon the terms and subject to the conditions set forth in the Prospectus and the accompanying Instructions as to Use of Rights Certificates (the "Instructions"). The subscription price for each Right is $_____ (the "Subscription Price"). Only holders of Common Shares and holders of Series B-1 Cumulative Convertible Redeemable Preferred Shares on ______, 2006 (the "Record Date") are entitled to exercise Rights pursuant to the Basic Subscription. The Rights will expire at 5:00 p.m., Eastern Standard Time, on ______ __, 2006, or such later time and date as the Company may determine in its sole discretion (the "Expiration Time"). The Rights are only exercisable upon the terms specified herein, in the Prospectus and in the Instructions. The Rights are not transferable, except by operation of law. Subject to the conditions set forth in the Prospectus, the valid exercise of all of the Rights represented by this Rights Certificate shall also entitle the holder thereof to subscribe for and purchase Common Shares not purchased by the other holders of Rights through their exercise of such Rights (the "Oversubscription Privilege"). If a holder elects to exercise the Oversubscription Privilege, such holder must do so concurrently with its exercise of the Basic Subscription. The holder of this Rights Certificate, as such, shall not be entitled to vote or receive dividends or be deemed for any purpose the holder of the Common Shares which may at any time be issuable upon the exercise hereof, nor shall anything contained herein be construed to confer upon the holder hereof, as such, any of the rights of a shareholder of the Company or any right to vote for the election of trustees or upon any matter submitted to shareholders at any meeting of the Company, or to give or withhold consent to any trust action, or, to receive notice of meetings or other actions affecting shareholders, or otherwise, until all or a portion of the Rights evidenced by this Rights Certificate have been exercised, payment in full of the Subscription Price for the Common Shares subscribed for has been made, all necessary documentation has been received by the Company and the Common Shares have been issued. The Rights represented by this Rights Certificate may be executed by completing the appropriate sections on the reverse side hereof and by returning the full payment for the shares subscribed for under the Basic Subscription (the "Basic Subscription Payment") in accordance with the Instructions. This Rights Certificate shall not be valid for any purpose unless countersigned by the Subscription Agent. WITNESS the facsimile seal of the Company and facsimile signature of the proper officers thereof. DATED: _____ __, 2006 WINTHROP REALTY TRUST By: ------------------------------ Chief Executive Officer Attest: ------------------------------ Secretary COUNTERSIGNED: NATIONAL CITY BANK, as Subscription Agent By: ------------------------------ (REVERSE) -------------------------------------------------------------------------------- SECTION 1 --- BASIC SUBSCRIPTION EXERCISE TO EXERCISE THE BASIC SUBSCRIPTION, complete this Section 1 and Section 4 below and return this Rights Certificate, with the Basic Subscription Payment, to National City Bank at the address set forth in Section 4. Number of Rights Exercised: _____________________________ Payment due on exercise of the Basic Subscription is number of Rights exercised under Basic Subscription x $_____ per Basic Subscription Right = $______________________. (If the instructions of the registered holder hereof are insufficient to delineate the proper action to be taken with respect to all of the Rights evidenced hereby, such action as is clearly delineated in such holder's instructions will be taken and such holder will be delivered a new Rights Certificate evidencing the remaining Rights to which such holder is entitled.) |_| Check here if Rights are being exercised pursuant to a Notice of Guaranteed Delivery delivered to the Subscription Agent prior to the Expiration Time and complete the following: Name(s) of Registered Holder(s)__________________________________ Window Ticket Number (if any)____________________________________ Date of Execution of Notice of Guaranteed Delivery_______________ Affix Medallion Signature Guarantee: -------------------------------------------------------------------------------- SECTION 2 -- OVERSUBSCRIPTION PRIVILEGE EXERCISE TO EXERCISE THE OVERSUBSCRIPTION PRIVILEGE, complete this Section 2 as well as Section 1 and Section 4 and, if applicable, Section 3. You may not exercise the Oversubscription Privilege unless you have satisfied the conditions set forth in the Prospectus and exercised your Basic Subscription in full or, in the case of securities held in street name, the particular beneficial owner has exercised its Basic Subscription in full. (The actual number of Common Shares available for purchase will depend upon the number of Rights exercised by all holders pursuant to the Basic Subscription and the other shareholders exercising the Oversubscription Privilege, and is subject to proration and reduction as described in the Prospectus.) Number of Common Shares Subscribed for: _________________________________* Payment for shares subscribed to under the Oversubscription Privilege is not due until five days after notification of how many shares have been allocated to you under the Oversubscription. At such time, you will be obligated to deliver payment equal to the number of Common Shares subscribed for that are allocated to you under the Oversubscription Privilege x $_____ per Common Share = $_______________. * Subject to proration and reduction by the Company under certain circumstances as described in the Prospectus. -------------------------------------------------------------------------------- SECTION 3 -- 9.8% WAIVER REQUEST If you anticipate that the exercise of your Rights will result in your beneficially owning in excess of 9.8% of Winthrop's common shares you must request a waiver from the 9.8% limitation contained in Winthrop's declaration of trust and by-laws by checking this box*: |_| * Please see the Instructions for guidance on determining whether you will need to request a waiver. -------------------------------------------------------------------------------- SECTION 4 -- PAYMENT INSTRUCTIONS; REPRESENTATIONS AND WARRANTIES AND CERTIFICATIONS Payment in Full for All Common Shares Subscribed for under Section 1 Must Accompany this Rights Certificate Total payment due under Section 1 = $_______________. I hereby represent, warrant and certify that (i) I have been provided with a copy of each of the Prospectus and the Instructions, (ii) I hereby subscribe for the number of Common Shares indicated in Sections 1 and 2 on the terms and conditions set forth in the Prospectus and in the Instructions, (iii) I hereby tender the aggregate Basic Subscription Payment, and (iv) I hereby agree to pay for all shares allocated to me under the Oversubscription Privilege within five business days following the notification informing me how many shares that I subscribed for under Section 2 have been allocated to me. I understand that my Rights will be deemed exercised only when, subject to certain conditions described in the Prospectus, a properly completed and duly executed Rights Certificate and payment of the full Subscription Price with respect to such exercise have been received by the Subscription Agent. IMPORTANT - RIGHTS HOLDERS SIGN HERE AND COMPLETE SUBSTITUTE FORM W-9 Authorized Signature(s) of Subscriber(s):__________________________________ Print Name(s): ____________________________________________________________ Address: __________________________________________________________________ (Including Zip Code) Telephone Number(s): (_____) __________________; (_____) __________________ Tax Identification or Social Security No(s).:______________________________ (Must be signed by the Rights holder(s) exactly as name(s) appear(s) on this Rights Certificate. If signature is by trustee(s), executor(s), administrator(s), guardian(s), attorney(s)-in-fact, agent(s), officer(s) of a corporation or another acting as a fiduciary or representative capacity, please provide the following information. See Instructions.) Authorized Signature(s):___________________________________________________ Print Name(s):_____________________________________________________________ Capacity:__________________________________________________________________ Address:___________________________________________________________________ ___________________________________________________________________________ (Including Zip Code) Telephone Number(s): (_____) __________________; (_____) __________________ Tax Identification or Social Security Nos.:______________________________________________________ (Complete Substitute Form W-9) Method of Payment (check one): |_| Uncertified Check. Please note that funds paid by uncertified personal check may take at least five business days to clear. Accordingly, registered holders who wish to pay the Subscription Price by means of an uncertified personal check are urged to make payment sufficiently in advance of the Expiration Time to ensure that such payment is received and clears by such date, and are urged to consider payment by means of certified or cashier's check, money order or wire transfer of funds. |_| Certified Check or Bank Check drawn on a U.S. bank or Money Order payable to National City Bank. |_| Wire transfer directed to the National City Bank. (Call (800) 622-6757 for wire instructions.) If the amount enclosed or transmitted is not sufficient to fulfill the Basic Subscription Payment for all Common Shares, or if the number of Common Shares being subscribed for is not specified, the number of Common Shares subscribed for will be assumed to be the maximum number that could be subscribed for upon payment of such amount. If the amount enclosed or transmitted exceeds the aggregate Subscription Price for all Common Shares that the undersigned has the right to purchase pursuant to the Basic Subscription (the "Subscription Excess"), the Subscription Agent shall return the Subscription Excess to the subscriber without interest or deduction. Please mail or deliver check or money order or wire transfer cash payable to National City Bank, for the aggregate Subscription Price due under the Basic Subscription to the Subscription Agent at the appropriate address below:
If by mail: If by hand: If by Overnight Courier: ----------- ----------- ------------------------ National City Bank c/o The Depositary Trust Company National City Bank Corporate Actions Processing Center Transfer Agent Drop Service Corporate Actions Processing Center P.O. Box 859208 55 Water Street 161 Bay Street Drive 161 Day Street Drive Jeanette Park Entrance Braintree, MA 02184 Braintree, MA 02185-9208 New York, NY 100041 or National City Bank Corporate Trust Operations 3rd floor - North Annex 4100 West 150th Street Cleveland, OH 44135
The Subscription Agent's facsimile number for eligible institutions only is (216) 257-8508. The telephone number for confirmation of receipt of facsimiles is ____________. If you have any questions, call our Information Agent, MacKenzie Partners, Inc., at (800) 322-2888. -------------------------------------------------------------------------------- SECTION 5 -- DELIVERY INSTRUCTIONS (Fill out ONLY if delivery is to be made to an address not shown on the face of this Rights Certificate.) Name(s): _________________________________________________________________ Address: _________________________________________________________________ -------------------------------------------------------------------------------- Acceptance or rejection by the Company of the subscription specified on this Rights Certificate shall be effective in accordance with the terms set forth in the Prospectus and the Instructions. Exercise of the Rights represented hereby shall not be deemed complete, the registered holder of the Rights whose name is inscribed hereon shall have no binding right to become the legal or beneficial owner of Common Shares issuable upon exercise of the Rights evidenced hereby, unless and/or until (i) the Expiration Time occurs and (ii) the other conditions to exercise described in the Prospectus and the Instructions are satisfied. All questions concerning the timeliness, validity, form and eligibility of any exercise of Rights will be determined by the Company, whose determination shall be final and binding.