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EXHIBIT 4.3
FIRST AMENDMENT TO RIGHTS AGREEMENT
FIRST AMENDMENT, dated as of October 13, 2000 ("First Amendment"),
to Rights Agreement dated as of August 14, 1998 (the "Rights Agreement"),
between Arden Realty, Inc., a Maryland corporation (the "Company"), and The Bank
of New York (the "Rights Agent"). Capitalized terms used but not otherwise
defined herein shall have the meanings ascribed to them in the Rights Agreement.
WHEREAS, the Company and the Rights Agent previously entered into
the Rights Agreement; and
WHEREAS, pursuant to Section 26 of the Rights Agreement, the
Company and the Rights Agent may from time to time supplement or amend any
provision of the Rights Agreement in accordance with the terms of such Section
26.
NOW, THEREFORE, in consideration of the foregoing premises and
mutual agreements set forth in this Amendment, the parties hereby amend the
Rights Agreement as follows:
1. Section 1.3(ii)(A)(z) of the Rights Agreement is hereby amended
and restated in its entirety to reads as follows:
"(z) securities which such Person or any of such Person's
Affiliates or Associates may acquire, does or do acquire or may be deemed
to acquire or may be deemed to have the right to acquire, pursuant to any
merger or other acquisition agreement between the Company and such Person
(or one or more of such Person's Affiliates or Associates) if prior to
such Person becoming an Acquiring Person the Board of Directors of the
Company has approved such agreement and determined that such Person shall
not be or be deemed to be the beneficial owner of such securities within
the meaning of this Section 1.3; or."
2. The following is hereby added as a new Section 1.9 of the
Rights Agreement and former Sections 1.9 through 1.13, respectively, are hereby
renumbered as Sections 1.10 through 1.14 respectively:
"1.9. `Future Director' shall mean any director who is not a
Continuing Director."
3. The last sentence of Section 11.1.3 is hereby amended and
restated to read in its entirety as follows:
"For a period of 180 days following a Trigger Event, actions by
the Company pursuant to this Section 11.1.3 shall be approved by the vote
of a majority of the Continuing Directors, and no Future Director shall
be entitled to vote with respect to such action. Thereafter, such actions
shall be approved by the vote of a majority of the Board of Directors."
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4. The last sentence of Section 11.4.1 of the Rights Agreement is
hereby amended and restated in its entirety to read as follows:
"If the Security is not publicly held or not so listed or traded,
or if on any such date the Security is not so quoted and no such market
maker is making a market in the Security, "current per share market
price" shall mean the fair value per share as determined in good faith
(i) by the Board of Directors of the Company if at the time of
determination there is no Acquiring Person, (ii) if at the time of
determination there is an Acquiring Person, for a period of 180 days
following a Trigger Event, by a majority of the Continuing Directors, or
(iii) if there are no Continuing Directors or if the 180 day period
following a Trigger Event has expired, by a nationally recognized
investment banking firm selected by the Board of Directors, which shall
have the duty to make such determination in a reasonable and objective
manner, whose determination shall be described in a statement filed with
the Rights Agent and shall be conclusive for all purposes."
5. The penultimate sentence of Section 11.4.2 of the Rights
Agreement is hereby amended and restated in its entirety to read as follows:
"If on any such date neither the Common Shares nor the Preferred
Shares are so quoted and no such market maker is making a market in
either the Common Shares or the Preferred Shares, "current per share
market price" of the Preferred Shares shall mean the fair value per share
as determined in good faith (i) by the Board of Directors of the Company
if at the time of determination there is no Acquiring Person, (ii) if at
the time of determination there is an Acquiring Person, for a period of
180 days following a Trigger Event, by a majority of the Continuing
Directors, or (iii) if there are no Continuing Directors or if the 180
day period following a Trigger Event has expired, by a nationally
recognized investment banking firm selected by the Board of Directors of
the Company, which shall have the duty to make such determination in a
reasonable and objective manner, which determination shall be described
in a statement filed with the Rights Agent and shall be conclusive for
all purposes."
6. Section 13.3 of the Rights Agreement is hereby amended and
restated to read in its entirety as follows:
"Section 13.3 Approved Acquisitions. Notwithstanding anything
contained herein to the contrary, upon the consummation of any merger or
other acquisition transaction of the type described in clause (A), (B) or
(C) of Section 13.1 involving the Company pursuant to a merger or other
acquisition agreement between the Company and any Person (or one or more
of such Person's Affiliates or Associates) which agreement has been
approved by the Board of Directors of the Company prior to any Person
becoming an Acquiring Person, this Agreement and the rights of holders of
Rights hereunder shall be terminated in accordance with Section 7.1."
7. The last sentence of Section 14.1 of the Rights Agreement is
hereby amended and restated in its entirety to read as follows:
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"If on any such date no such market maker is making a market in
the Rights, the current market value of the Rights on such date shall be
the fair value of the Rights as determined in good faith (i) by the Board
of Directors of the Company if at the time of determination there is no
Acquiring Person, (ii) if at the time of determination there is an
Acquiring Person, for a period of 180 days following a Trigger Event, by
a majority of the Continuing Directors, or (iii) if there are no
Continuing Directors or if the 180 day period following a Trigger Event
has expired, by a nationally recognized investment banking firm selected
by the Board of Directors of the Company, which shall have the duty to
make such determination in a reasonable and objective manner, which
determination shall be described in a statement filed with the Rights
Agent and shall be conclusive for all purposes."
8. The second sentence of Section 22 of the Rights Agreement is
hereby amended and restated to read in its entirety as follows:
"In addition, in connection with the issuance or sale of Common
Shares following the Distribution Date and prior to the Expiration Date,
the Company (a) shall, with respect to Common Shares so issued or sold
pursuant to the exercise of stock options or under any employee plan or
arrangements, granted or awarded as of the Distribution Date, or upon
exercise, conversion or exchange of securities hereafter issued by the
Company, and (b) may, in any other case, if deemed necessary or
appropriate by the Board of Directors of the Company, issue Right
Certificates representing the appropriate number of Rights in connection
with such issuance or sale; PROVIDED, HOWEVER, that (i) no such Right
Certificate shall be issued if, and to the extent that, the Company shall
be advised by counsel that such issuance would create a significant risk
of material adverse tax consequences to the Company or the Person to whom
such Right Certificate would be issued, (ii) no such Right Certificate
shall be issued if, and to the extent that, appropriate adjustment shall
otherwise have been made in lieu of the issuance thereof and (iii) at the
time of a determination by the Board of Directors to cause the Company to
issue a Right Certificate under clause (b) above, there must be
Continuing Directors then in office and any such determination shall
require the approval of at least a majority of such Continuing Directors;
provided, however, that this clause (iii) shall be applicable only for
the 180 day period following a Trigger Event."
9. The last sentence of Section 26 of the Rights Agreement is
hereby amended and restated to read in its entirety as follows:
"Any supplement or amendment to this Agreement pursuant to this
Section 26 shall be approved by a majority of the Board of Directors;
provided, however, that for a period 180 days following a Trigger Event,
any supplement or amendment to this Agreement pursuant to this Section 26
shall be approved by a vote of the majority of the Continuing Directors,
and no Future Director shall be entitled to vote with respect to such
supplement or amendment. Thereafter, any such supplement or amendment
shall be approved by the vote of a majority of the Board of Directors."
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10. Section 30 of the Rights Agreement is hereby amended and
restated in its entirety as follows:
"Section 30 Determination and Actions by the Board of Directors.
The Board of Directors of the Company (in conjunction with the Continuing
Directors as specifically provided in this Agreement) or, where
applicable as specifically provided in this Agreement, the Continuing
Directors, shall have the exclusive power and authority to administer
this Agreement and to exercise the rights and powers specifically granted
to the Board of Directors of the Company (in conjunction with the
Continuing Directors, as applicable) or to the Continuing Directors or to
the Company, or as may be necessary or advisable in the administration of
this Agreement, including, without limitation, the right and power to (i)
interpret the provisions of this Agreement and (ii) make all
determinations deemed necessary or advisable for the administration of
this Agreement (including, without limitation, a determination to redeem
or not redeem the Rights or amend this Agreement). All such actions,
calculations, interpretations and determinations (including, for purposes
of clause (y) below, all omissions with respect to the foregoing) that
are done or made by the Board of Directors of the Company or the
Continuing Directors, as applicable, in good faith shall (x) be final,
conclusive and binding on the Company, the Rights Agent, the holders of
the Rights, as such, and all other parties, and (y) not subject the Board
of Directors or the Continuing Directors, as applicable, to any liability
to the holders of the Rights. Notwithstanding any provision in this
Section 30 or any other provision of this Agreement, (i) any requirement
that Continuing Directors vote for or approve any action shall be limited
to the 180 day period following a Trigger Event, and (ii) no Future
Director shall be entitled to vote for the redemption, modification or
termination of the Rights for a period of 180 days following a Trigger
Event."
11. The fourth paragraph of Exhibit B to the Rights Plan ("Form of Right
Certificate) is hereby amended and restated in its entirety as follows:
"Subject to the provisions of the Agreement, the Board of
Directors may, at its option, (i) redeem the Rights represented by this
Right Certificate at a redemption price of $.01 per Right at any time
prior to the close of business on the tenth day after the Shares
Acquisition Date or (ii) exchange Common Shares for the Rights
represented by this Certificate, in whole or in part. The period during
which redemption of the Rights is permitted may be extended by the Board
of Directors of the Company; provided, however, that for a period of 180
days following a Trigger Event, such an extension shall require the
concurrence of a majority of the Continuing Directors. Unless otherwise
provided in the Rights Agreement, no Future Director shall be entitled to
vote for the redemption, modification or termination of the Rights for a
period of 180 days following a Trigger Event."
12. The tenth paragraph of Exhibit C to the Rights Plan (SUMMARY OF
RIGHTS TO PURCHASE PREFERRED SHARES), is hereby amended to (a) delete the words
"close of business on the tenth business day following the first date of public
announcement that
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a Person has become an Acquiring Person" and replace them with the words "time
that an Acquiring Person has become such.
13. This First Amendment shall be effective as of the date hereof
and, except as expressly set forth herein, the Rights Agreement shall remain in
full force and effect and be otherwise unaffected hereby.
14. This First Amendment may be executed in any number of
counterparts, each of which, when executed, shall be deemed to be an original
and all such counterparts shall together constitute one and the same document.
IN WITNESS WHEREOF, the parties have executed this First Amendment
as of the date first written above.
ARDEN REALTY, INC.
By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: Secretary
THE BANK OF NEW YORK
By: /s/ XXXXXXX X. XXXXXX
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Name: Xxxxxxx X. Xxxxxx
Title: Assistant Vice President
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