AMENDMENT NO. 1 TO SHAREHOLDER RIGHTS AGREEMENT
THIS AMENDMENT NO. 1 TO THE SHAREHOLDER RIGHTS AGREEMENT (the "Rights
Agreement"), dated as of March 31, 1999, between Philips International Realty
Corp., a Maryland corporation (the "Company"), and BankBoston, N.A., a
Massachusetts corporation, as Rights Agent (the "Rights Agent") is made as of
this 27th day of July, 1999.
W I T N E S S E T H
WHEREAS, the Company and the Rights Agent previously have entered into
the Shareholder Rights Agreement; and
WHEREAS, the Company desires to amend the Rights Agreement as set forth
in this Amendment to incorporate recent Maryland legislative changes and to
otherwise continue to operate under the terms and conditions of the Rights
Agreement;
NOW, THEREFORE, pursuant to Section 27 of the Rights Agreement and in
consideration of the mutual promises hereinafter set forth and of other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound hereby, do
hereby agree to amend the Rights Agreement as follows:
FIRST Section 1 is hereby amended to add a new paragraph (l) as
follows, and all subsequent paragraphs shall be relettered:
"(l) "Continuing Director" shall mean any member of the
Board of Directors of the Company, while such Person is a member
of the Board of Directors, who (i) is not (A) an Acquiring Person
or an Affiliate or Associate of an Acquiring Person or (B) a
representative or nominee of an Acquiring Person or of any such
Affiliate or Associate or (C) any Person elected to the Board of
Directors as a result of a proxy solicitation or initiative
referred to in Section 23(b); and (ii) either (A) was a member of
the Board of Directors immediately prior to the time any Person
becomes an Acquiring Person or (B) subsequently becomes a member
of the Board of Directors, if such Person's nomination for
election or election to the Board of Directors is recommended or
approved by a majority of the Continuing Directors."
SECOND Section 23 shall be amended and restated as follows:
"Section 23. Redemption and Termination. (a) Subject to the
provisions of paragraph (b) below, the Board of Directors of the
Company may, at its option, at any time prior to the earlier of
(i) the close of business on the tenth calendar day following the
Shares Acquisition Date (or if the Shares Acquisition Date shall
have occurred prior to the Record Date, the close of business on
the tenth day following the Record Date) or (ii) close of
business on the Final Expiration Date,
redeem all but not less than all of the then outstanding Rights
at a redemption price of $.0l per Right, appropriately adjusted
to reflect any stock split, stock dividend or similar transaction
occurring after the date hereof (such redemption price being
hereinafter referred to as the "Redemption Price"). Subject to
the terms hereof and to the immediately preceding sentence, the
redemption of the Rights by the Board of Directors may be made
effective at such time, on such basis and on such conditions as
the Board of Directors in its sole discretion may establish. The
Company may, at its option, pay the Redemption Price either in
shares of its Common Stock (valued at their then current per
share market price as defined in Section 11(d)(i) on the date of
the redemption), other securities, cash or other assets.
Notwithstanding anything contained in this Agreement to the
contrary, the Rights shall not be exercisable after the first
occurrence of an event specified in Section 11(a)(ii) hereof
until such time as the Company's right of redemption under this
Section 23(a) has expired.
(b) If the Board of Directors of the Company, pursuant to
paragraph (a) above, authorizes redemption of the Rights in the
circumstances set forth below, then there must be Continuing
Directors in office and such authorization shall require the
approval of at least a majority of the Continuing Directors: such
authorization occurs within one hundred eighty (180) days after
the earlier to occur of (i) the Share Acquisition Date or (ii)
the date of a change (resulting from a proxy or consent
solicitation or similar shareholder initiative) in a majority of
the directors of the Company in office at the commencement of
such solicitation or initiative if any Person who is a
participant in such solicitation or initiative has stated (or if
upon the commencement of such solicitation or initiative a
majority of the directors of the Company has determined in good
faith) that such Person (or any of its Affiliates or Associates)
intends to take, or may consider taking, any action which would
result in such Person becoming an Acquiring Person or which would
cause the occurrence of a Trigger Event.
(c) Immediately upon the action of the Board of Directors of
the Company ordering the redemption of the Rights pursuant to
paragraph (a) of this Section 23, and without any further action
and without any notice, the right to exercise the Rights will
terminate and the only right thereafter of the holders of Rights
shall be to receive the Redemption Price for each Right held. The
Company shall promptly give public notice of any such redemption;
provided, however, that the failure to give, or any defect in,
such notice shall not affect the validity of such redemption. The
Company shall give notice of such redemption to the holders of
the then outstanding Rights by mailing such notice to the Rights
Agent and to all such holders at their last addresses as they
appear upon the registry books of the Rights Agent or, prior to
the Distribution Date, on the registry books of the transfer
agent for the Common Stock. Any notice which is mailed in the
manner herein provided shall be deemed given, whether or not the
holder receives the notice. Each such notice of redemption will
state the method by which the payment of the Redemption Price
will be made. Neither the
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Company nor any of its Affiliates or Associates may redeem,
acquire or purchase for value any Rights at any time in any
manner other than that specifically set forth in this Section 23
or in Section 24 hereof, and other than in connection with the
repurchase of Common Stock prior to the Distribution Date."
THIRD The third sentence of Section 27 shall be amended and restated as
follows:
"From and after the Distribution Date, the Company may, and
the Rights Agent shall, if the Company so directs, from time to
time supplement or amend any provision of this Agreement without
the approval any holder of Right Certificates in order (a) to
cure any ambiguity, (b) to correct or supplement any provision
contained herein which may be defective or inconsistent with any
of other provisions herein, (c) to shorten or lengthen any time
period hereunder (provided that any shortening of the time
periods set forth in Section 23 hereof shall be effective only if
there are Continuing Directors and shall require a majority of
such Continuing Directors), or (d) to change or supplement the
provisions hereunder in any manner which the Company may deem
necessary or desirable and which shall not adversely affect the
interests of the holders of Right Certificates (other than an
Acquiring Person or an Affiliate or Associate of an Acquiring
Person); provided, however, that from and after the Distribution
Date, this Agreement may not be supplemented or amended to
lengthen, pursuant to clause (c) of this sentence, (i) a time
period relating to when the Rights may be redeemed at such time
as the Rights are not then redeemable or (ii) any other time
period unless such lengthening is for the purpose of protecting,
enhancing or clarifying the rights of, and the benefits to, the
holders of Rights (other than an Acquiring Person or any
Affiliate or Associate of an Acquiring Person)."
FOURTH The Section of Exhibit C entitled "Redemption and Exchange of
Rights" shall be amended and restated as follows:
"Redemption and Exchange of Rights
At any time after any person or group becomes an Acquiring
Person, the Board of Directors may cause the Company to exchange
the Rights (other than Rights owned by the Acquiring Person which
shall have become void), in whole or in part, at an exchange
ratio of one Common Share per Right (subject to adjustment).
At any time prior to the earlier of (i) the close of
business on the tenth calendar day following the Shares
Acquisition Date (or if the Shares Acquisition Date shall have
occurred prior to the Record Date, the close of business on the
tenth day following the Record Date) or (ii) the Final Expiration
Date, the Board of Directors of the Company may cause the Company
to redeem the Rights in whole, but not in part, at a price of
$.0l per Right (the "Redemption Price"). Under certain
circumstances set forth in the Rights Agreement, the decision to
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redeem shall require that there be Continuing Directors (as
defined below) in office and that a majority of the Continuing
Directors approve such decision. Immediately upon the action of
the Board of Directors of the Company electing to redeem the
Rights, with, if required, the concurrence of the Continuing
Directors, the Company shall make announcement thereof, and upon
such action, the right to exercise the Rights will terminate and
the only right of the holders of Rights will be to receive the
Redemption Price.
Until a Right is exercised or exchanged, the holder thereof,
as such, will have no rights as a stockholder of the Company,
including, without limitation, the right to vote or to receive
dividends.
"Continuing Director" shall mean any member of the Board of
Directors of the Company, while such Person is a member of the
Board of Directors, who (i) is not (A) an Acquiring Person or an
Affiliate or Associate of an Acquiring Person or (B) a
representative or nominee of an Acquiring Person or of any such
Affiliate or Associate or (C) any Person elected to the Board of
Directors as a result of a proxy solicitation or initiative
referred to in Section 23(b); and (ii) either (A) was a member of
the Board of Directors immediately prior to the time any Person
becomes an Acquiring Person or (B) subsequently becomes a member
of the Board of Directors, if such Person's nomination for
election or election to the Board of Directors is recommended or
approved by a majority of the Continuing Directors."
FIFTH Except for the terms, conditions and provisions modified by this
Amendment, the Rights Agreement shall remain in full force and affect pursuant
to the terms thereof.
SIXTH This Amendment and the rights and obligations of the parties
hereunder shall be governed by and construed and interpreted in accordance with
the substantive laws of the State of Maryland, without regard to its conflict of
laws principles.
SEVENTH This Amendment may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original, and all such
counterparts shall constitute one in the same instrument.
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IN WITNESS WHEREOF, the Company and the Rights Agent have caused this
Agreement to be duly executed and attested, all as of the day and year first
above written.
PHILIPS INTERNATIONAL REALTY CORP.
By: /s/ Xxxxx X. Xxxxx
------------------------
Name: Xxxxx X. Petra
Title: President
Attest:
By: /s/ Xxxxxx Xxxxxx
--------------------------
Name: Xxxxxx Xxxxxx
Title: Secretary
BANKBOSTON, N.A.
By: /s/ Xxxxx Xxxxx Eori
------------------------
Name: Xxxxx Xxxxx Eori
Title: Administration Manager
Attest:
By: /s/ Xxxxx X. Xxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxx
Title: Paralegal
