SECOND AMENDMENT AND SUPPLEMENT
TO RIGHTS AGREEMENT
This Second Amendment and Supplement to Rights Agreement dated as of June
6, 2003 (the "Second Supplement") is made and entered into by and between Gevity
HR, Inc., a Florida corporation (the "Company"), and American Stock Transfer &
Trust Company, a New York corporation (the "Rights Agent").
RECITALS
WHEREAS, the Company and the Rights Agent have entered into the Rights
Agreement dated as of April 23, 2002 between the Company and the Rights Agent
(the "Original Rights Agreement") as amended by the First Amendment and
Supplement to Rights Agreement dated as of March 5, 2003 (the "First Amendment")
(the Original Rights Agreement, as amended by the First Amendment, is referred
to as the "Rights Agreement"), and Section 26 of the Rights Agreement authorizes
the Company to supplement and amend any provision of the Rights Agreement
without the approval of any holders of certificates representing Common Shares
(as defined in the Rights Agreement); and
WHEREAS, pursuant to the First Amendment, the Company exempted from the
application of the Rights Agreement (i) the purchase of the Company's Series A
Convertible Preferred Stock (the "Series A Preferred Stock") upon initial
issuance thereof by the Company, (ii) the conversion of shares of Series A
Preferred Stock into Common Shares (as defined in the Rights Agreement) in
accordance with the terms thereof, and (iii) any increases in the number of
Common Shares into which the Series A Preferred Stock is convertible from time
to time as a result of provisions contained in the Certificate of Designation
(as defined in the Rights Agreement) including provisions designed to protect
against dilution which would result in a reduction in the conversion price
applicable to the Series A Preferred Stock as a result of issuances of Common
Shares by the Company at a per share price which is less than the conversion
price then in effect for the Series A Preferred Stock, and as a result of stock
splits, stock dividends, reorganizations, mergers, and consolidations; and
WHEREAS, pursuant to Section 6 of the Certificate of Designation, in the
event the Company grants, issues or sells any Purchase Rights, as defined in the
Certificate of Designation, pro rata to the record holders of any class of
Common Shares, then each holder of Series A Preferred Stock will be entitled to
acquire, upon the terms applicable to such Purchase Rights, the aggregate
Purchase Rights which such holder could have acquired if such holder had held
the number of Common Shares issuable upon conversion of such holder's Series A
Preferred Stock immediately before the date as of which the record holders of
Common Shares are to be determined for the grant, issue or sale of such Purchase
Rights; and
WHEREAS, the Company has determined to exempt from the application of the
Rights Agreement the grant, issue or sale of such Purchase Rights to the holders
of Series A Preferred Stock in accordance with the terms of the Certificate of
Designation and the exercise of such
Purchase Rights and receipt of Common Shares or other securities as a result of
such exercise from the application of the Rights Agreement; and
WHEREAS, Section 6 of the Certificate of Designation also provides that if
the Distribution Date (as defined in the Rights Agreement) occurs, the Company
will issue to each holder of Series A Preferred Stock a number of rights equal
to the number of Rights (as defined in the Rights Agreement) such holder would
have held if such holder had held the number of Common Shares issuable upon
conversion of such holder's Series A Preferred Stock immediately prior to the
Distribution Date and that such rights will be identical to the Rights; and
WHEREAS, the Company has determined to amend the Rights Agreement to
exempt from the application of the Rights Agreement the grant, issue or sale of
the Purchase Rights, the exercise of the Purchase rights and receipt of Common
Shares or other securities as a result thereof as provided above and to provide
for the issuance of rights identical to the Rights to the holders of Series A
Preferred Stock outstanding on a Distribution Date as provided herein; and
WHEREAS, Section 4 of the Certificate of Designation authorizes the
holders of the Series A Preferred Stock to elect two directors to serve as
members of the Board of Directors of the Company (so long as Frontenac is the
Majority Holder, but in no event at any time that Frontenac is not the Majority
Holder) (each, a "Series A Director" and collectively, the "Series A
Directors"), and the Series A Directors will receive stock options granted by
the Company to Directors ("Director Options") generally on the same basis as all
other Directors; and
WHEREAS, the Company has determined to amend the Rights Agreement to
exempt from the application of the Rights Agreement the acquisition and exercise
of Director Options by any Series A Director (i) if such Series A Director is an
Affiliate or Associate of an Initial Purchaser or a Qualified Transferee, or
(ii) if an Initial Purchaser or Qualified Transferee would be deemed to
beneficially own such securities under the terms of the Rights Agreement; and
WHEREAS, the Company has also determined to amend the Rights Agreement to
exempt from the application of the Rights Agreement certain acquisitions of
shares of the Series A Preferred Stock in the same manner that the Initial
Purchase as defined in the Rights Agreement) of shares of the Series A Preferred
Stock from the Company by the Initial Purchasers (as defined in the Rights
Agreement) are exempt from the application of the Rights Agreement.
NOW, THEREFORE, in consideration of the premises and mutual agreements
herein set forth, the parties hereto agree as follows:
Section 1. Definitions. For purposes of this Second Supplement,
capitalized terms not otherwise defined shall have the meanings set forth in the
Rights Agreement and the following term shall have the following meaning:
"Purchase Agreement" shall mean the Preferred Stock Purchase
Agreement dated as of April 24, 2003, as amended by the First Amendment to
Purchase Agreement dated as of June 3, 2003, between the Company and the Initial
Purchasers.
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"Purchase Rights" shall have the meaning set forth in the
Certificate of Designation.
"Qualified Transferee" shall mean a Person that acquires shares of
Series A Preferred Stock from one or more Initial Purchasers or Qualified
Transferees, but only if (i) the transfer of such shares by the Initial
Purchaser or Qualified Transferee, as the case may be, and the acquisition of
such shares by such Person is in compliance with the Purchase Agreement,
including, without limitation, Section 5 thereof, and (ii) on the date of the
acquisition of such shares by such Person, such Person, together with all
Affiliates and Associates of such Person, is not the record or beneficial owner
of, and is not deemed to be the "Beneficial Owner" of or to "beneficially" own
under the terms of the Rights Agreement, any other shares of the Series A
Preferred Stock or any Common Shares.
Section 2. Exemption of Transactions.
(a) A holder of Series A Preferred Stock shall not be deemed to be
an "Acquiring Person" under the Rights Agreement solely by reason of the
acquisition of Purchase Rights from the Company under the terms of the
Certificate of Designation even if such acquisition results in such holder,
together with all Affiliates and Associates of such Person, becoming the
Beneficial Owner of 15% or more of the Common Shares.
(b) The grant, issuance or sale of Purchase Rights by the Company to
a holder of Series A Preferred Stock under the terms of the Certificate of
Designation and the acquisition thereof by such holder shall not be deemed to be
a Triggering Event under the terms of the Rights Agreement even if such
acquisition results in any such holder, together with all Affiliates and
Associates of such Person, becoming the Beneficial Owner of 20% of more of the
Common Shares.
(c) The exercise of any Purchase Rights acquired from the Company
under the terms of the Certificate of Designation by any holder of Series A
Preferred Stock and the receipt by such holder of Common Shares or other
securities as a result of such exercise shall be exempt from the application of
the terms of the Rights Agreement and shall not, in and of itself, cause such
holder to be an Acquiring Person (even if such exercise and receipt of Common
Shares results in such holder, together with all Affiliates and Associates of
such Person, becoming the Beneficial Owner of 15% or more of the Common Shares),
and shall not be deemed to be a Triggering Event (even if such exercise and
receipt of Common Shares would result in such holder, together with all
Affiliates and Associates of such Person, becoming the Beneficial Owner of 20%
or more of the Common Shares).
(d) A Qualified Transferee shall not be deemed to be an "Acquiring
Person" solely by reason of the acquisition of shares of Series A Preferred
Stock from one or more Initial Purchasers or Qualified Transferees even if such
acquisition results in such Qualified Transferee, together with all Affiliates
and Associates of such Person, becoming the Beneficial Owner of 15% or more of
the Common Shares.
(e) An acquisition of shares of Series A Preferred Stock by a
Qualified Purchaser from one or more Initial Purchasers or Qualified Transferees
will not be deemed to be
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a Triggering Event even if such acquisition results in such Qualified
Transferee, together with all Affiliates and Associates of such Person, becoming
the Beneficial Owner of 20% or more of the Common Shares.
(f) In the event a Series A Director receives any Director Options
and/or exercises any Director Options and in each case at such time of receipt
or exercise (i) such Series A Director is an Affiliate or Associate of an
Initial Purchaser or a Qualified Transferee, or (ii) an Initial Purchaser or
Qualified Transferee would be deemed to beneficially own such securities under
the terms of the Rights Agreement, such acquisition and/or exercise of such
Director Options shall not, in and of itself, cause such Series A Director,
Initial Purchaser or Qualified Transferee to be an Acquiring Person (even if
such acquisition and/or exercise results in such Series A Director, Initial
Purchaser or Qualified Transferee becoming the Beneficial Owner of 15% or more
of the Common Shares), and shall not, in and of itself, be deemed to be a
Triggering Event (even if such acquisition and/or exercise of such Director
Options would result in such Series A Director, Initial Purchaser or Qualified
Transferee becoming the Beneficial Owner of 20% or more of the Common Shares).
Section 3. Rights of Holders of Series A Preferred Stock on Distribution
Date. If the Distribution Date occurs and there remain outstanding any shares of
Series A Preferred Stock, then for purposes of the Rights Agreement, each such
share of Series A Preferred Stock shall be treated as and deemed to be the
number of Common Shares acquirable upon conversion of such share of Series A
Preferred Stock immediately prior to the Distribution Date, and the holder of
such share of Series A Preferred Stock shall have all the rights of the holders
of Common Shares under the Rights Agreement as if such share of Series A
Preferred Stock had been converted into Common Shares immediately prior to the
Distribution Date, including, without limitation, the right to receive rights
identical to the Rights (including Right Certificates) that such holder would
have received if such share of Series A Preferred Stock had been converted into
Common Shares immediately prior to the Distribution Date.
Section 4. Amendment. The Company shall not amend, waive or modify, or
agree to any amendment, waiver or modification of, any provision of the Rights
Agreement contained in this Second Supplement or the First Amendment without the
prior written consent of the Majority Holders.
Section 5. Binding Effect. The Rights Agreement, as amended and
supplemented by this Second Supplement, shall remain in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have caused this Second Supplement
to be dully executed and the respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
GEVITY HR, INC.
By:
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Name:
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Title:
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Attest:
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[SEAL]
AMERICAN STOCK TRANSFER & TRUST COMPANY
By:
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Name:
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Title:
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Attest:
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[SEAL]
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