AMENDMENT NO. 1 TO RIGHTS AGREEMENT
Amendment No. 1, dated as of January 31, 2001 ("Amendment No. 1"),
between CBL & Associates Properties, Inc., a Delaware corporation (the
"Company"), and SunTrust Bank, a Georgia corporation, as rights agent (the
"Rights Agent").
WHEREAS, the Company and BankBoston, N.A. entered into that certain
Rights Agreement, dated as of April 30, 1999 (the "Rights Agreement");
WHEREAS, SunTrust Bank, has succeeded BankBoston, N.A as rights agent
under the Rights Agreement;
WHEREAS, as of the date hereof the Distribution Date (as defined in
the Rights Agreement) has not occurred;
WHEREAS, the Company has entered into that certain Master Contribution
Agreement, dated as September 25, 2000, as amended (the "Master Contribution
Agreement"), with CBL & Associates Limited Partnership, a Delaware limited
partnership, Xxxxxx Realty Investors Limited Partnership, a Delaware limited
partnership ("JRI"), and the other parties thereto;
WHEREAS, as contemplated under the Master Contribution Agreement, the
Company's Amended and Restated Certificate of Incorporation, dated May 2, 1996,
as supplemented by the Certificate of Designation, dated June 25, 1998, and the
Certificate of Designation, dated April 30, 1999, has been further amended
pursuant to a Certificate of Amendment, filed with the Secretary of State of the
State of Delaware on the date hereof (such Certificate of Incorporation, as so
supplemented and amended, the "Current Certificate of Incorporation"), a copy of
which amendment is attached hereto as Exhibit A;
WHEREAS, the Company has entered into that certain Share Ownership
Agreement, dated as of the date hereof (the "Share Ownership Agreement"), with
JRI and the other parties thereto, a copy of which Agreement is attached hereto
as Exhibit B; and
WHEREAS, in connection with the principal closing of the transaction
contemplated under the Master Contribution Agreement, and as required under
Section 4.10 of the Master Contribution Agreement, the Company desires to amend
the Rights Agreement in accordance with Section 27 thereof, as further provided
herein;
NOW, THEREFORE, in consideration of the premises and mutual agreements
set forth in the Rights Agreement and this Amendment No. 1, the parties hereby
agree as follows:
SECTION 1. Amendment to Definition of "Acquiring Person". The first
sentence of Section 1(a) of the Rights Agreement is hereby deleted and replaced
in its entirety with the following:
(a) "Acquiring Person" shall mean any Person who or which,
together with all Affiliates and Associates of such Person, shall be
the Beneficial Owner of 15% or more of the shares of Common Stock then
outstanding, but shall not include (i) the Company, (ii) any
Subsidiary of the Company, (iii) any employee benefit plan of the
Company or of any Subsidiary of the Company, (iv) any Person or entity
holding shares of Common Stock for or pursuant to the terms of any
such plan to the extent, and only to the extent, of such shares so
held, (v) any member of the Lebovitz Group or (vi) the Xxxxxx Group or
any of its members provided that such Person does not Beneficially Own
or Constructively Own Equity Stock ("Beneficially Own",
"Constructively Own" and "Equity Stock", for purposes of this clause
(vi) only, as defined in the Current Certificate of Incorporation) in
excess of the Xxxxxx Permitted Ownership Amount.
SECTION 2. Amendment to Definition of "Distribution Date". Section
1(k) of the Rights Agreement is hereby deleted and replaced in its entirety with
the following:
(k) "Distribution Date" shall mean the earlier of (i) the Close
of Business on the tenth day after the Stock Acquisition Date (or, if
the tenth day after the Stock Acquisition Date occurs before the
Record Date, the Close of Business on the Record Date), or (ii) the
Close of Business on the tenth Business Day (or, if such tenth
Business Day occurs before the Record Date, the Close of Business on
the Record Date), or such specified or unspecified later date on or
after the Record Date as may be determined by action of the Board
prior to such time as any Person becomes an Acquiring Person, after
the date that a tender or exchange offer by any Person (other than the
Company, any Subsidiary of the Company or any employee benefit plan of
the Company or of any Subsidiary of the Company or any Person or
entity holding shares of Common Stock for or pursuant to the terms of
any such plan or any member of the Lebovitz Group) is first published
or sent or given within the meaning of Rule 14d-2(a) of the General
Rules and Regulations under the Exchange Act, if (a) with respect to
any Person other than the Xxxxxx Group or any of its members, upon
consummation thereof, such Person would be the Beneficial Owner of 15%
or more of the outstanding shares of Common Stock and (b) with respect
to the Xxxxxx Group or any of its members, upon consummation thereof,
such Person would Beneficially Own or Constructively Own Equity Stock
("Beneficially Own", "Constructively Own" and "Equity Stock", for
purposes of this clause (b) only, as defined in the Current
Certificate of Incorporation) in excess of the Xxxxxx Permitted
Ownership Amount.
SECTION 3. Amendment of Section 1 to Add Certain Definitions. Section
1 is hereby amended to add the following definitions:
"Xxxxxx Family Member" shall mean each of Xxxxxxx X. Xxxxxx, any
spouse or lineal descendant of Xxxxxxx X. Xxxxxx or Xxxxx X. Xxxxxx,
and any spouse or lineal descendant of any of the foregoing.
"Xxxxxx Group" shall have the meaning set forth in the Current
Certificate of Incorporation, except that the term "Xxxxxx Group"
shall not be deemed to include any entity unless (i) at least 51% of
the economic interests in such entity are beneficially owned (as
defined in Rule 13d-3 of the General Rules and Regulations under the
Exchange Act) by one or more Xxxxxx Family Members; and (ii) such
entity is controlled exclusively by one or more Xxxxxx Family Members,
provided however, that each of the Xxxxxxx X. Xxxxxx Revocable Living
Trust and the Xxxxx X. Xxxxxx Marital Trust shall be deemed to be a
member of the Xxxxxx Group so long as it satisfies the conditions of
clause (i) above regardless of how it is controlled.
"Xxxxxx Permitted Ownership Amount" shall have the meaning set
forth in the Share Ownership Agreement.
SECTION 4. Rights Agreement as Amended. The term "Agreement" as used
in the Rights Agreement shall be deemed to refer to the Rights Agreement as
amended hereby and shall be deemed to include the additional terms defined in
this Amendment No. 1. The foregoing amendments shall be effective as of the date
hereof and, except as set forth herein, the Rights Agreement shall remain in
full force and effect and shall be otherwise unaffected hereby.
SECTION 5. Acknowledgment. The Company hereby acknowledges its
existing obligations under Section 4.10 of the Master Contribution Agreement
with respect to any further amendments to the Rights Agreement as amended
hereby.
SECTION 6. Counterparts. This Amendment No. 1 may be executed in any
number of counterparts, and each of such counterparts shall for all purposes be
deemed an original and all such counterparts shall together constitute but one
and same instrument.
SECTION 7. Governing Law. This Amendment No. 1 shall be deemed to be a
contract made under the laws of the State of Delaware and for all purposes shall
be governed by and construed in accordance with the laws of such State
applicable to contracts made and to be performed entirely within such State.
SECTION 8. Descriptive Headings. Descriptive headings of this
Amendment No. 1 are inserted for convenience only and shall not control or
affect the meaning or construction of any of the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No.
1 to Rights Agreement to be duly executed as of the day and year first above
written.
CBL & ASSOCIATES PROPERTIES, INC.
By:
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Name: Xxxx X. Xxx
Title: Vice Chairman and Chief Financial
Officer
SUNTRUST BANK,
as Rights Agent
By:
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Name:
Title:
