EXHIBIT 10.33.2
SECOND AMENDMENT TO STOCKHOLDER PROTECTION RIGHTS AGREEMENT
This Second Amendment (the "AMENDMENT") to Stockholder Protection
Rights Agreement is entered into as of June 10, 2002, by and between Hanover
Capital Mortgage Holdings, Inc., a Maryland corporation (the "COMPANY") and
EquiServe Trust Company, N.A., a national banking association (the "RIGHTS
AGENT").
W I T N E S S E T H :
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WHEREAS, the Company and the Rights Agent are parties to that certain
Stockholder Protection Rights Agreement dated as of April 11, 2000 (the
"AGREEMENT"); and
WHEREAS, the Company and the Rights Agent amended the Agreement to
appoint EquiServe Trust Company as the Rights Agent by that certain Amendment to
the Agreement effective as of September 26, 2001 (the "AMENDMENT"); and
WHEREAS, effective May 24, 2002, the Company has amended its Articles
of Incorporation to provide for an increased Excepted Holder Limit which allows
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ to own up to 20% of the Company's capital stock; and
WHEREAS, the Agreement currently provides that if ▇▇. ▇▇▇▇▇▇▇▇ acquires
beneficial ownership of 18% or more of the Company's common stock he could
become an "Acquiring Person" as defined in the Agreement, which could lead to
the occurrence of the "Separation Time" as defined in the Agreement; and
WHEREAS, the Board of Directors, with ▇▇. ▇▇▇▇▇▇▇▇ recusing himself
from the vote thereon, deemed it fair, desirable and in the best interests of
the Company and its stockholders to, pursuant to Section 5.4 of the Agreement,
amend the Agreement as set forth below, and duly authorized ▇▇. ▇▇▇▇▇▇▇▇ to
execute and deliver this Amendment, in order to ensure that the provisions of
the Agreement are consistent with the provisions of the Company's amended
Articles of Incorporation.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. DEFINED TERMS. Capitalized terms used herein and not otherwise defined
herein shall have the meanings attributed to such terms in the Agreement,
as amended hereby.
2. AMENDMENTS TO THE AGREEMENT.
2.1. The definition of "Acquiring Person" under Article I,
Section 1.1 of the Agreement is deleted in its entirety and
is replaced with the following:
""ACQUIRING PERSON" shall mean any Person who is a Beneficial
Owner of 10% or more of the outstanding shares of Common Stock
(or in the case of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, more than 20% of the
outstanding shares of Common Stock or in the case of ▇▇▇▇▇▇▇
▇▇▇▇▇, 17% or more of the outstanding shares of Common Stock);
PROVIDED, HOWEVER, that
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the term "Acquiring Person" shall not include any Person (i)
who shall become the Beneficial Owner of 10% or more (or in
the case of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, more than 20% of the
outstanding shares of Common Stock or in the case of ▇▇▇▇▇▇▇
▇▇▇▇▇, 17% or more of the outstanding shares of Common
Stock) of the outstanding shares of Common Stock solely as a
result of an acquisition by the Company of shares of Common
Stock, until such time hereafter or thereafter as any of
such Persons shall become the Beneficial Owner (other than
by means of a stock dividend or stock split) of any
additional shares of Common Stock, (ii) who becomes the
Beneficial Owner of 10% or more (or in the case of ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, more than 20% of the outstanding shares of Common
Stock or in the case of ▇▇▇▇▇▇▇ ▇▇▇▇▇, 17% or more of the
outstanding shares of Common Stock) of the outstanding
shares of Common Stock but who acquired Beneficial Ownership
of shares of Common Stock without any plan or intention to
seek or affect control of the Company, if, upon notice by
the Company, such Person promptly enters into an irrevocable
commitment with the Company to divest, and thereafter
promptly divests (without exercising or retaining any power,
including voting, with respect to such shares), sufficient
shares of Common Stock (or securities convertible into,
exchangeable into or exercisable for Common Stock) so that
such Person ceases to be the Beneficial Owner of 10% or more
(or in the case of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, more than 20% of the
outstanding shares of Common Stock or in the case of ▇▇▇▇▇▇▇
▇▇▇▇▇, 17% or more of the outstanding shares of Common
Stock) of the outstanding shares of Common Stock or (iii)
who Beneficially Owns shares of Common Stock consisting
solely of one or more of (A) shares of Common Stock
Beneficially Owned pursuant to the grant or exercise of an
option granted to such Person (an "OPTION HOLDER") by the
Company in connection with an agreement to merge with, or
acquire, the Company entered into prior to a Flip-in Date,
(B) shares of Common Stock (or securities convertible into,
exchangeable into or exercisable for Common Stock),
Beneficially Owned by such Option Holder or its Affiliates
or Associates at the time of grant of such option and (C)
shares of Common Stock (or securities convertible into,
exchangeable into or exercisable for Common Stock) acquired
by Affiliates or Associates of such Option Holder after the
time of such grant which, in the aggregate, amount to less
than 1% of the outstanding shares of Common Stock. In
addition, the Company, any wholly-owned Subsidiary of the
Company and any employee stock ownership or other employee
benefit plan of the Company or a wholly-owned Subsidiary of
the Company shall not be an Acquiring Person."
2.2. Section 4.4 entitled "Change of Rights Agent" of the Agreement
is hereby amended by inserting after the first sentence
ending with the words "...by first-class mail." the words:
"In the event the Transfer Agency and Services Agreement
terminates, the Rights Agent will be deemed to resign
automatically on the effective date of such termination; and
any required notice will be sent by the Company."
3. REFERENCE TO AND EFFECT OF THE AGREEMENT.
3.1. Upon the effectiveness of this Amendment, each reference in
the Agreement to "this Agreement," "hereunder," "hereof,"
"herein," and similar terms shall mean and be a reference to
the Agreement as amended hereby.
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3.2. Except as specifically amended above, all of the terms,
conditions and covenants of the Agreement shall remain
unaltered and in full force and effect and shall be binding
upon the parties thereto in all respects and are hereby
ratified and confirmed.
4. CHOICE OF LAW. This Amendment shall be construed in accordance with the
internal laws (and not the law of conflicts) of the State of Maryland.
5. HEADINGS. Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
6. COUNTERPARTS. This Amendment may be executed in one or more counterparts
each of which when so executed and delivered will be deemed an original
but all of which will constitute one and the same amendment.
[Signature page to follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the day and year first above written.
HANOVER CAPITAL MORTGAGE HOLDINGS, INC.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chairman, Chief Executive Officer and President
EQUISERVE TRUST COMPANY, N.A.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name:
Title:
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