Exhibit
4.2


 


AMENDED AND RESTATED


SHARE REPURCHASE PROGRAM


 


The Board of Directors (the “Board”)
of Inland Diversified Real Estate Trust, Inc., a Maryland corporation (the
“Company”), has adopted this Amended and Restated Share Repurchase
Program (this “Repurchase Program”) to permit and authorize the Company
to repurchase shares of its common stock, par value $0.001 per share (the “Shares”),
from its stockholders, in all cases subject to the terms, conditions and
limitations set forth herein.  The terms
on which the Company may repurchase Shares may differ between repurchases upon
the death of a stockholder (“Exceptional Repurchases”) and all other repurchases
(“Ordinary Repurchases”).  The
effective date of this Repurchase Program is May 20, 2010.


 


1.             Repurchase Price.


 


(a)           In the case of Ordinary
Repurchases, the Company is authorized to repurchase Shares from its
stockholders at the following prices per Share:


 


(i)            if the Shares are
beneficially owned by the requesting stockholder continuously for at least one (1) year,
but less than two (2) years, the repurchase price per Share shall be equal
to 92.5% of the Share Price (as defined below);


 


(ii)           if the Shares are
beneficially owned by the requesting stockholder continuously for at least two (2) years,
but less than three (3) years, the repurchase price per Share shall be
equal to 95.0% of the Share Price;


 


(iii)          if the Shares are
beneficially owned by the requesting stockholder continuously for at least
three (3) years, but less than four (4) years, the repurchase price
per Share shall be equal to 97.5% of the Share Price; or


 


(iv)          if the Shares are
beneficially owned by the requesting stockholder continuously for at least four
(4) years, the repurchase price per Share shall be equal to 100.0% of the Share
Price.


 


(b)           In the case of Exceptional
Repurchases, the Company is authorized to repurchase Shares at a repurchase
price per Share equal to 100.0% of the Share Price.


 


(c)           As used herein “Share
Price” shall have the following meaning:


 


(i)            prior to the date that the
Company first discloses an estimated value per Share that is not based solely
on the offering price of the Shares in the Company’s most recent “best efforts”
offering (the “Valuation Date”), the Share Price shall be equal to the
offering price of the Shares in the Company’s most recent “best efforts”
offering (the “Offering Price”); provided, however, that
if the Company has sold properties or other assets and has made one or more
special distributions to stockholders of all or a portion of the net proceeds
from the sales, the Share Price prior to the Valuation Date shall be equal to
the Offering Price less the amount of net 


 

















 


sale proceeds per Share that constitute a return of capital distributed
to stockholders as a result of the sales; provided, further, that
in the event that the requesting stockholder purchased his, her or its Shares
from the Company at a price that was less than the Offering Price, including at
a discounted price through the DRP, as defined below (the “Reduced Shares”),
the Share Price applicable to the Reduced Shares prior to the Valuation Date
shall be equal to the per Share price paid by that stockholder for the Reduced
Shares requested to be repurchased, further reduced, if applicable, as set
forth in the preceding proviso; and


 


(ii)           after the Valuation Date, the
Share Price shall be equal to the lesser of (A) the Share Price determined
in paragraph (c)(i) above or (B) the most recently disclosed
estimated value per Share, as determined by the Board, the Company’s business
manager or another firm that the Company has chosen for that purpose.


 


2.             Terms for Ordinary
Repurchases.


 


(a)           General. The Company
may repurchase Shares, including fractional Shares, that have been beneficially
owned by a stockholder of the Company continuously for at least one (1) year
(the “Holding Period”).  A
stockholder may elect to participate in the Repurchase Program with respect to
all or a designated portion of that stockholder’s Shares.  In the event that a stockholder is requesting
the repurchase of all of his, her or its Shares, the Company may waive the Holding
Period for Shares purchased under the Company’s Distribution Reinvestment Plan,
as may be amended from time to time (the “DRP”).


 


(b)           Funding.  In the case of Ordinary Repurchases, the Company
is authorized, for the purpose of repurchasing Shares under this Repurchase
Program in a particular calendar month, to use solely the proceeds from the DRP
during that particular month (the “Ordinary Funds”).  Notwithstanding anything to the contrary
herein, if, during any calendar month, the aggregate amount of Ordinary Funds exceeds
the aggregate amount needed to repurchase all Shares for which Ordinary
Repurchase Requests have been received by the Company, the Company may, but
shall not be obligated to, carry over the excess amount of Ordinary Funds to a subsequent
calendar month(s) for use in addition to the amount of Ordinary Funds
otherwise available for Ordinary Repurchases during that subsequent calendar month(s).


 


(c)           Repurchase Limitations.  Notwithstanding anything to the contrary
herein, and excluding any Shares repurchased as Exceptional Repurchases, the
Company may not at any time repurchase a number of Shares that exceeds five
percent (5.0%) of the number of Shares outstanding on December 31 of the
last calendar year (the “5% Limit”). 
Further, in any given calendar month, funds used for the purpose of
Ordinary Repurchases may not exceed the Ordinary Funds, including any excess
amount carried over pursuant to Section 2(b) above (the “Funding
Limit” and, together with the 5% Limit, the “Repurchase Limitations”).


 


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(d)           Pro Rata Repurchase.  The Company cannot guarantee that it will be
able to repurchase all Shares for which Ordinary Repurchase requests are
received.  In any calendar month, if the
Company determines not to repurchase all Shares presented for repurchase during
that month, including as a result of the Company having satisfied the
Repurchase Limitations, the Company shall, to the extent it decides to make
Ordinary Repurchases, repurchase Shares on a pro
rata basis up to, but not in excess of, the Repurchase Limitations.  Any stockholder whose Ordinary Repurchase
request has been partially accepted by the Company in a particular calendar
month shall have the remainder of his, her or its request included with all new
Ordinary Repurchase requests received by the Company in the immediately
following calendar month.  In the event a
stockholder wishes to withdraw his, her or its repurchase request in the
following calendar month, he, she or it may provide the Company with a written
request of withdrawal pursuant to Section 4(c).


 


3.             Terms for Exceptional
Repurchases.


 


(a)           General. The Company may
repurchase Shares, including fractional Shares, upon the death of a stockholder
who is a natural person, including Shares held by the stockholder through a
trust, or an IRA or other retirement or profit-sharing plan, after receiving a written
request pursuant to Section 4(a) from (i) the estate of
the stockholder, (ii) the recipient of the Shares through bequest or
inheritance, even where the recipient has registered the Shares in his or her
own name or (iii) in the case of the death of a settlor of a trust, the
beneficiary of the trust, even where the beneficiary has registered the Shares
in his or her own name.  The Company
must, however, receive the written request within one year after the death of
the stockholder.  Any request not
received within the one-year period will not be eligible to be treated as an
Exceptional Repurchase, but instead will be treated as an Ordinary Repurchase.  If spouses are joint registered holders of
Shares, the request to repurchase the Shares may be made if either of the
registered holders dies.  If the stockholder
is not a natural person, such as a partnership, corporation or other similar
entity, the right to an Exceptional Repurchase upon death does not apply.


 


(b)           Funding.  In the case of Exceptional Repurchases, the
Company is authorized, for the purpose of repurchasing Shares under this
Repurchase Program, to use any funds that the Board in its sole discretion may
designate for this purpose.


 


(c)           No Repurchase Limitations.  The 5% Limit will not apply to Exceptional
Repurchases.


 


4.             General Terms of Repurchase.


 


(a)           Repurchase Requests.  A stockholder, or, in the case of Exceptional
Repurchases, his or her estate, heir or beneficiary, may request that the
Company repurchase the stockholder’s Shares by submitting a repurchase request,
in the form provided by the Company, to the Company’s transfer agent, DST
Systems, Inc. (“DST”), at the address provided on the form.  The repurchase request must state the name of
the person/entity who beneficially owns the Shares and the number of Shares requested
to be repurchased.  To be effective in a
particular calendar month, DST must receive a 


 


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repurchase request at least five (5) days prior to the Repurchase
Date (as defined herein).  No repurchase
request shall be given preference over any other repurchase request.


 


(b)           No Encumbrances.  All Shares requested to be repurchased under
this Repurchase Program must be (i) beneficially owned by the stockholder(s) of
record making the presentment, or the party presenting the Shares must be
authorized to do so by the owner(s) of record of the Shares, and (ii) fully
transferable and not be subject to any liens or other encumbrances.  In certain cases, the Company may ask the
requesting stockholder, or, in the case of Exceptional Repurchases, his or her
estate, heir or beneficiary, to provide evidence satisfactory to the Company,
in its sole discretion, that the Shares requested for repurchase are free from
liens and other encumbrances.  If the Company
determines that a lien or other encumbrance exists against the Shares, the
Company shall have no obligation to repurchase, and shall not repurchase, any
of the Shares subject to the lien or other encumbrance.


 


(c)           Time of Repurchase.  The Company shall make repurchases of Shares
under this Repurchase Program on or about the last business day of each
calendar month or any other business day that may be established by the Board
(the “Repurchase Date”).  As soon
as reasonably practicable following the date of each monthly repurchase hereunder,
the Company shall send to the applicable stockholder, or, in the case of
Exceptional Repurchases, his or her estate, heir or beneficiary, all cash
proceeds resulting from the repurchase of his or her Shares.


 


(d)           Withdrawal of Repurchase Request.  In the event a stockholder, or, in the case
of Exceptional Repurchases, his or her estate, heir or beneficiary, wishes to
withdraw his, her or its repurchase request to have Shares repurchased under
this Repurchase Program, he, she or it shall provide the Company with a written
request of withdrawal.  The Company will
not repurchase Shares so long as the Company receives the written request of
withdrawal at least five (5) days prior to the Repurchase Date.


 


(e)           Ineffective Withdrawal.  In the event the Company receives a written
notice of withdrawal, as described in Section 4(d), from a
stockholder, or, in the case of Exceptional Repurchases, his or her estate,
heir or beneficiary, less than five (5) days prior to the Repurchase Date,
the notice of withdrawal shall not be effective with respect to the Shares
repurchased, but shall be effective with respect to any of the Shares not
repurchased.  The Company shall provide
the stockholder, or, in the case of Exceptional Repurchases, his or her estate,
heir or beneficiary, with prompt written notice of the ineffectiveness or
partial ineffectiveness of the written notice of withdrawal.


 


5.             Treatment
of Repurchased Shares.  All
Shares repurchased by the Company pursuant to this Repurchase Program shall be
cancelled and shall have the status of authorized but unissued shares.  The Company shall not reissue any Shares
repurchased by it pursuant to this Repurchase Program unless those Shares are
first registered with the Securities and Exchange Commission under the Securities
Act of 1933, as amended, and under appropriate state securities laws or
otherwise issued in compliance with these laws.


 


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6.             Termination of Repurchase
Program.  This Repurchase Program shall be
suspended or terminated, as the case may be, and the Company shall not accept
Shares for repurchase upon the occurrence of any of the following:


 


(a)           This Repurchase Program
shall immediately terminate, without further action by the Board or any notice
to the Company’s stockholders, in the event the Shares are listed on any national
securities exchange.


 


(b)           This Repurchase Program may
be suspended (in whole or in part) or terminated at any time by the Board, in
its sole discretion.


 


7.             Amendment; Rejection of Requests.  Notwithstanding anything to the contrary
herein, this Repurchase Program may be amended, in whole or in part, by the
Board, in its sole discretion, at any time or from time to time.  Further, the Board reserves the right in its
sole discretion at any time and from time to time to reject any requests for
repurchases.


 


8.             Miscellaneous.


 


(a)           Notice.  In the event of any amendment, suspension or
termination of this Repurchase Program pursuant to Section 6(b) or
Section 7 hereof, as the case may be, the Company shall provide
written notice to its stockholders at least thirty (30) days prior to the
effective date of the amendment, suspension or termination.  In addition, the Company shall disclose the
amendment, suspension or termination in a report filed by the Company with the
Securities and Exchange Commission on either Form 8-K, Form 10-Q or Form 10-K,
or any successor forms, as appropriate.


 


(b)           Liability.  Subject to the limitations contained in the
Company’s articles of incorporation, as amended, neither the Company nor the
Repurchase Agent (as defined below) shall have any liability to any stockholder
for the value of the Shares presented for repurchase, the repurchase price of
the Shares or for any damages resulting from the presentation of Shares for
repurchase or the repurchase of Shares under this Repurchase Program or from the
Company’s determination not to repurchase Shares under the Repurchase
Program, except as a result of the Company’s or the Repurchase Agent’s
negligence, misconduct or violation of applicable law; provided, however,
that nothing contained herein shall constitute a waiver or limitation of any
rights or claims that a stockholder may have under federal or state securities
laws.


 


(c)           Taxes.  Stockholders shall have sole responsibility
and liability for the payment of all taxes, assessments and other applicable
obligations resulting from the repurchase of Shares pursuant to this Repurchase
Program and neither the Company nor the Repurchase Agent shall have any such
responsibility or liability.


 


(d)           Repurchase Agent.  The Company may appoint a repurchase agent as
the Company’s agent under this Repurchase Program (a “Repurchase
Agent”), to effect all repurchases of Shares and to disburse funds in
accordance with the terms, conditions and limitations set forth herein.


 


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(e)           Administration and Costs.  The Repurchase Agent shall perform all
recordkeeping and other administrative functions involved in operating and
maintaining the Repurchase Program.  The Company shall bear all costs involved in
organizing, administering and maintaining the Repurchase Program.  No fees will be paid to the Company’s
sponsor, its business manager, its directors or any of their affiliates in
connection with the repurchase of shares by the Company pursuant to this Repurchase
Program.


 


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