Although it is widely believed that REITs enjoy two special and inherent hostile takeover defenses, public REITs are as vulnerable to hostile attack as any other public company. Excess share provisions have a role to play in a REIT’s takeover defense strategy, but are largely untested as anti-takeover devices and are no substitute for judicially validated rights plans. Ultimately, REIT directors must be aware of possible hostile activity and must be prepared to respond if a bid emerges. The most fundamental decision will often be whether to implement a rights plan that provides a potential target with judicially tested protection from unsolicited bids. A properly deployed takeover preparedness strategy is essential in protecting a REIT against abusive takeover tactics and increasing its ability to control its own destiny.
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