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EXHIBIT 2
FIRST AMENDMENT
TO
RIGHTS AGREEMENT
THIS FIRST AMENDMENT TO RIGHTS AGREEMENT (the "Amendment"), dated as of
March 28, 2001, is entered into by and between BancorpSouth, Inc., a Mississippi
corporation (the "Company"), and BancorpSouth Bank, a Mississippi corporation,
as Rights Agent (the "Rights Agent").
WHEREAS, the Company and the Rights Agent are parties to that certain
Rights Agreement, dated as of April 24, 1991 (the "Rights Agreement");
WHEREAS, the Board of Directors of the Company has determined that it
is in the best interests of the Company and its shareholders to amend the Rights
Agreement as set forth below; and
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Rights
Agreement may be amended as set forth herein without approval of the holders of
the rights, and the Rights Agent is willing to amend the Rights Agreement as set
forth herein.
NOW, THEREFORE, in consideration of the promises and the mutual
agreements herein set forth, the Company and the Rights Agent agree as follows:
1. UPDATE OF COMPANY'S NAME. All references in the Rights Agreement, and
the Exhibits thereto, to "Bancorp of Mississippi, Inc." are hereby replaced
entirely by "BancorpSouth, Inc."
2. UPDATE OF RIGHTS AGENT'S NAME. All references in the Rights Agreement,
and the Exhibits thereto, to "Bank of Mississippi" are hereby replaced entirely
by "BancorpSouth Bank."
3. AMENDMENT TO PERMIT THE CURE OF AN INADVERTENT ACQUISITION. The
definition of "Acquiring Person" in Section 1(a) of the Rights Agreement is
hereby amended and restated to read in its entirety as follows:
""Acquiring Person" shall mean any Person which, together with all
Affiliates and Associates of such Person, shall be the Beneficial Owner
of 20% or more of the shares of Company Common Stock then outstanding,
but shall not include the Company, any Subsidiary of the Company, any
employee benefit plan maintained by the Company or any of its
Subsidiaries or any trustee or fiduciary with respect to such plan
acting in such capacity. Notwithstanding the foregoing:
(x) no Person shall become an "Acquiring Person" as the result of
an acquisition of Company Common Stock by the Company which, by
reducing the number of shares outstanding, increases the proportionate
percentage of
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shares beneficially owned by such Person to 20% or more of the Company
Common Stock then outstanding; provided, however, that if a Person
becomes the Beneficial Owner of 20% or more of the Company Common Stock
then outstanding by reason of share purchases by the Company and shall,
after such share purchases by the Company, become the Beneficial Owner
of any additional Company Common Stock, then such Person shall be
deemed to be an Acquiring Person; and
(y) if a majority of the members of the Board of Directors, with
the concurrence of a majority of the Independent Directors, determines
in good faith that a Person who would otherwise be an Acquiring Person
has become such inadvertently (including, without limitation, because
(i) such Person was unaware that he or it was the Beneficial Owner of a
percentage of shares of Common Stock that would otherwise cause such
person to be an Acquiring Person or (ii) such Person was aware of the
extent to which he or it is the Beneficial Owner of shares of Common
Stock but had no actual knowledge of the consequences of being such a
Beneficial Owner under this Agreement) and without any intention of
changing or influencing control of the Company, and if such Person,
after being advised of such determination and within a period of time
set by a majority of Independent Directors, divests himself or itself
of a sufficient number of shares of Common Stock so that such Person
shall not be deemed to be or have become an Acquiring Person for any
purposes of this Agreement, then such Person shall not be deemed to be
or to have become an Acquiring Person for any purpose under this
Agreement during any period of time (1) prior to the time the members
of the Board of Directors shall have become aware that such Person had
become an Acquiring Person (but for the provisions of this subsection
(y)), (2) during which the members of the Board of Directors are making
the determination called for under this subsection (y), and (3) during
which such Person is divesting himself or itself of a sufficient number
of shares of Common Stock so that such Person would no longer be an
Acquiring Person."
4. AMENDMENT TO DELETE THE "DEAD HAND" PROVISION. The definition of
"Independent Director" in Section 1(l) of the Rights Agreement is hereby amended
and restated to read in its entirety as follows:
""Independent Director" shall mean a member of the Board of Directors
of the Company who is not, and has never been, an officer or employee
of the Company."
5. AMENDMENT OF "DISTRIBUTION DATE" TO PARALLEL THE SEC'S TENDER OFFER
RULES. Section 3(a)(i) of the Rights Agreement is hereby amended to delete the
phrase "tenth day" and replace such phrase with "tenth Business Day."
6. AMENDMENT OF "DISTRIBUTION DATE" TO PARALLEL THE SEC'S TENDER OFFER
RULES. Section 3(a)(ii) of the Rights Agreement is hereby amended to delete the
phrase "tenth day" and replace such phrase with "tenth Business Day."
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7. AMENDMENT OF THE STOCK CERTIFICATE LEGEND. Section 3(c) of the Rights
Agreement is hereby amended to insert the phrase ", and amended as of March 28,
2001" immediately following the phrase "dated April 24, 1991" in the legend
contained in Section 3(c).
8. EXTENSION OF THE EXPIRATION DATE. Section 7(a) of the Rights Agreement
is hereby amended to delete the phrase "April 24, 2001" in clause (i) thereof
and replace such phrase with "March 28, 2011."
9. AMENDMENT OF THE PURCHASE PRICE. Section 7(b) of the Rights Agreement
is hereby amended to delete the phrase "shall initially be $100.00" and replace
such phrase with "shall be $60.00."
10. AMENDMENT OF THE "FLIP-IN" RIGHT. Section 11(a)(ii) of the Rights
Agreement is hereby amended and restated to read in its entirety as follows:
"(ii) Subject to Section 24 of this Agreement, in the event (A) any
Person shall at any time after the Rights Dividend Declaration Date
become an Acquiring Person, unless the event causing such Person to
become an Acquiring Person is (1) a transaction set forth in Section
13(a) hereof, or (2) an acquisition of shares of Common Stock pursuant
to a tender offer or an exchange offer for all outstanding shares of
Common Stock at a price and on terms determined by at least a majority
of the Independent Directors and who are not representatives, nominees,
or Affiliates of an Acquiring Person, after receiving advice from one
or more investment banking firms, to be (a) at a price that is fair to
shareholders (taking into account all factors that such members of the
Board deem relevant including, without limitation, prices that could
reasonably be achieved if the Company or its assets were sold on an
orderly basis designed to realize maximum value) and (b) otherwise in
the best interests of the Company and its shareholders, or (B) a
majority of the members of the Board of Directors, with the concurrence
of a majority of the Independent Directors, shall declare any Person to
be an Adverse Person, upon a determination that such Person, alone or
together with its Affiliates and Associates, has, at any time after the
Rights Dividend Declaration Date, become the Beneficial Owner of (I) at
least 10% of the shares of Common Stock then outstanding or (II) Voting
Securities representing at least 10% of the Total Voting Power, and a
determination, after reasonable inquiry and investigation, including
consultation with such persons, as such members of the Board of
Directors shall deem appropriate, that (a) such Beneficial Ownership by
such Person is intended to cause the Company to repurchase the Common
Stock and/or Voting Securities beneficially owned by such Person or to
cause pressure on the Company to take action or enter into a
transaction or series of transactions intended to provide such Person
with short-term financial gain under circumstances where the Board of
Directors determine that the best long-term interests of the Company
and its shareholders would not be served by taking such action or
entering into such transaction or series of transactions at that time
or (b) such Beneficial Ownership is causing or reasonably likely to
cause a material adverse impact on the business or prospects of the
Company (including, but not limited to,
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impairment of the Company's relationships with customers, impairment of
the Company's ability to maintain its competitive position, impairment
of the Company's capital position, impairment of the Company's ability
to meet the convenience and needs of the communities it serves, or
impairment of the Company's business reputation or ability to deal with
governmental agencies) to the detriment of the Company's shareholders;
then, immediately upon the date of the occurrence of any event
described above (a "Section 11(a)(ii) Event"), proper provision shall
be made so that each holder of a Right (except as provided below and in
Section 7(e) hereof) shall thereafter have the right to receive, upon
exercise thereof at the then current Purchase Price in accordance with
the terms of this Agreement, in lieu of one share of Common Stock, such
number of shares of Common Stock of the Company as shall equal the
result obtained by (x) multiplying the then current Purchase Price by
the then number of shares of Common Stock for which a Right was
exercisable immediately prior to the first occurrence of a Section
11(a)(ii) Event, and (y) dividing that product (which, following such
first occurrence, shall thereafter be referred to as the "Purchase
Price" for each Right and for all purposes of this Agreement, other
than Section 13 hereof) by fifty percent (50%) of the then current
market price (determined pursuant to Section 11(d) hereof) per share of
Common Stock on the date of such first occurrence (such number of
shares, the "Adjustment Shares"); provided, however, that the Purchase
Price (as so adjusted) and the number o shares of Common Stock so
receivable upon exercise of a Right shall, following the Section
11(a)(ii) Event, be subject to further adjustment as appropriate in
accordance with Section 11(f) hereof.
11. AMENDMENT TO REFLECT NYSE LISTING. Section 11(d) of the Rights
Agreement is hereby amended by amending and restating the second sentence of
Section 11(d) to read in its entirety as follows:
"The closing price for each day shall be, if the shares of Company
Common Stock are listed and admitted to trading on a national
securities exchange, as reported in the principal consolidated
transaction reporting system with respect to securities listed or
admitted to trading on the New York Stock Exchange, or, if such shares
of Company Common Stock are not listed or admitted to trading on the
New York Stock Exchange, as reported in the principal consolidated
transaction reporting system with respect to securities listed on the
principal national securities exchange on which such shares are listed
or admitted to trading, or, if such shares of Company Common Stock are
not listed or admitted to trading on any national securities exchange,
the last quoted sales price or, if not so quoted, the average of the
high bid and low asked prices in the over-the-counter market, as
reported by the National Association of Securities Dealers, Inc.
Automated Quotation ("NASDAQ") or such other system then in use, or, if
on any such date such shares are not quoted by any such organization,
the average of the closing bid and asked prices as furnished by a
professional market maker making a market in the shares of Company
Common Stock selected by the Board of Directors, with the concurrence
of a majority of the Independent Directors."
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12. AMENDMENT OF THE REQUIREMENT TO MAIL A SUMMARY OF ADJUSTMENTS TO THE
PURCHASE PRICE. Section 12(c) of the Rights Agreement is hereby amended and
restated to read in its entirety as "if a Distribution Date has occurred, mail a
brief summary thereof to each holder of a Rights Certificate in accordance with
Section 26 hereof."
13. AMENDMENT TO REFLECT NYSE LISTING. Section 14(a) of the Rights
Agreement is hereby amended by amending and restating the fourth sentence of
Section 14(a) to read in its entirety as follows:
"The closing price of the Rights for any day shall be, if the Rights
are listed or admitted to trading on the New York Stock Exchange, or,
if the Rights are not listed or admitted to trading on the New York
Stock Exchange, as reported in the principal consolidated transaction
reporting system with respect to securities listed on the principal
national securities exchange on which the Rights are listed or admitted
to trading, or, if the Rights are not listed or admitted to trading on
any national securities exchange, the last quoted sales price or, if
not so quoted, the average of the high bid and low asked prices in the
over-the-counter market, as reported by NASDAQ or such other system
then in use or, if on any such date the Rights are not quoted by any
such organization, the average of the closing bid and asked prices as
furnished by a professional market maker making a market in the Rights
selected by a majority of the Independent Directors."
14. AMENDMENT TO PARALLEL THE SEC'S TENDER OFFER RULES. Section 23(a)(ii)
of the Rights Agreement is hereby amended and restated to read in its entirety
as "the Close of Business on the Distribution Date."
15. AMENDMENT TO PARALLEL THE SEC'S TENDER OFFER RULES. Section 23(a) of
the Rights Agreement is hereby amended to delete subsection 23(a)(iii).
16. UPDATE OF THE NOTICE PROVISION. Section 26 of the Rights Agreement is
hereby amended by amending and restating the first sentence of Section 26 to
read in its entirety as follows:
"All notices and other communications provided for hereunder shall,
unless otherwise stated herein, be in writing (including by telex,
telecopy, telegram or cable) and mailed, sent or delivered, if to the
Company at the following address:
BancorpSouth, Inc.
Xxx Xxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxxxx;
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and if to the Rights Agent, at the following address:
BancorpSouth Bank
Xxx Xxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxxxx."
17. REFERENCES; EFFECT. Capitalized terms not otherwise defined herein
shall have the respective meanings given to them in the Rights Agreement. Each
reference to the "Agreement" in the Rights Agreement, and the Exhibits thereto,
shall be deemed to refer to the Rights Agreement, as amended hereby. This
Amendment 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 otherwise
unaffected hereby.
18. COUNTERPARTS. This Amendment may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when executed and delivered shall be deemed an original effective for
binding the parties hereto, but all of which shall together constitute one and
the same instrument.
[NEXT PAGE IS SIGNATURE PAGE.]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
signed by an individual thereto duly authorized, all on the date first written
above.
BANCORPSOUTH, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx
Chairman and Chief Executive Officer
BANCORPSOUTH BANK, as Rights Agent
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
President and Chief Operating Officer
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