AMENDMENT NO. 2 TO RIGHTS AGREEMENT
AMENDMENT NO. 2 dated as of May 2, 2000 to the Rights Agreement dated as
of August 7, 1990 and amended as of June 1, 1999 (the "Rights Agreement")
between The Liberty Corporation, a South Carolina corporation (the "Company"),
and American Stock Transfer & Trust Company (which replaced The Bank of New
York), as Rights Agent (the "Rights Agent").
W I T N E S S E T H
WHEREAS, the parties hereto desire to amend the Rights Agreement in
certain respects;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Defined Terms; References. (a) Unless otherwise specifically
defined herein, each term used herein which is defined in the Rights Agreement
has the meaning assigned to such term in the Rights Agreement. Each reference
to "hereof", "hereunder", "herein" and "hereby" and each other similar
reference and each reference to "this Agreement" and each other similar
reference contained in the Rights Agreement shall, after this Amendment becomes
effective, refer to the Rights Agreement as amended hereby.
(b) Section 1 of the Rights Agreement is hereby amended by deleting the
definition of "Continuing Director" contained therein.
(c) Section 1 of the Rights Agreement is hereby amended by inserting in
the appropriate alphabetical position the following new definition:
"Exempt Person" shall mean the Company or any Subsidiary of the Company,
in each case including, without limitation, in its fiduciary capacity, or any
employee benefit plan of the Company or of any Subsidiary of the Company, or
any entity or trustee holding Common Stock for or pursuant to the terms of any
such plan or for the purpose of funding any such plan or funding other employee
benefits for employees of the Company or of any Subsidiary of the Company.
(d) Section 1 of the Rights Agreement is hereby amended by restating in
its entirety the following definitions to read in full as follows:
"Acquiring Person" means any Person who, together with all Affiliates and
Associates of such Person, shall on any date after August 7, 1990, become the
Beneficial Owner of 20% or more of the shares of Common Stock then
outstanding, but shall not include an Exempt Person; provided, however, that
(a) if the Board of Directors of the Company determines (whether prior to or
after the date that, in the absence of such determination, would be a
Distribution Date) in good faith that a Person who would otherwise be an
"Acquiring Person" became such inadvertently (including, without limitation,
because (i) such Person was unaware that it beneficially owned a percentage of
Common Stock that would otherwise cause such Person to be an "Acquiring Person"
or (ii) such Person was aware of the extent of its Beneficial Ownership of
Common Stock but had no actual knowledge of the consequences of such Beneficial
Ownership under this Agreement) and without any intention of changing or
influencing control of the Company, and if such Person as promptly as
practicable (as determined, in good faith, by the Board of Directors of the
Company) divested or divests itself of Beneficial Ownership of a sufficient
number of shares of Common Stock so that such Person would no longer be an
"Acquiring Person", then such Person shall not be deemed to be or to have
become an "Acquiring Person" for any purposes of this Agreement and (b) no
Person shall become an "Acquiring Person" as the result of (i) an acquisition
of shares of Common Stock by the Company which, by reducing the number of
shares outstanding, increases the proportionate number of shares of Common
Stock beneficially owned by such Person to 20% or more of the shares of Common
Stock then outstanding, (ii) an increase in the proportionate number of shares
of Common Stock beneficially owned by such Person to 20% or more of the Common
Stock of the Company then outstanding (w) pursuant to a will or to the laws of
descent and distribution, (x) by reason of any direct or indirect transfer to a
member of the transferor's Immediate Family or to a trust for the benefit of a
member of the transferor's Immediate Family (a "Transferee Trust"), (y) in
connection with any divorce decree or settlement or (z) by reason of a direct
or indirect transfer of shares of Common Stock held on the date of this
Agreement by any trust or at any time by a Transferee Trust to any beneficiary
of any such trust; or (iii) as a result of any acquisition by such person of
shares of Common Stock pursuant to any employee benefit plan of the Company or
any Subsidiary; provided further, however, that if a Person shall become the
Beneficial Owner of 20% or more of the shares of Common Stock then outstanding
by reason of any of the transactions specified in the foregoing clauses (a) or
(b) and shall thereafter become the Beneficial Owner of any additional shares
of Common Stock (other than as specified in the foregoing clause (a) or (b) or
pursuant to a dividend or distribution paid or made by the Company on the
outstanding Common Stock or pursuant to a split or subdivision of the
outstanding Common Stock), then such Person shall be deemed to be an "Acquiring
Person" unless upon becoming the Beneficial Owner of such additional shares of
Common Stock such Person does not beneficially own 20% or more of the shares of
Common Stock then outstanding.
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A Person shall be deemed the "Beneficial Owner" of, and shall be deemed to
have "Beneficial Ownership" of and to "beneficially own", any securities:
(a) which such Person or any of its Affiliates or Associates,
directly or indirectly, beneficially owns (as determined pursuant to Rule
13d-3 under the Exchange Act as in effect on the date hereof);
(b) which such Person or any of its Affiliates or Associates,
directly or indirectly, has
(i) the right to acquire (whether such right is exercisable
immediately or only upon the occurrence of certain events or the
passage of time or both) pursuant to any agreement, arrangement or
understanding (other than customary agreements with and between
underwriters and selling group members with respect to a bona fide
public offering of securities), or upon the exercise of conversion
rights, exchange rights, rights, warrants or options, or otherwise;
provided, however, that a Person shall not be deemed the Beneficial
Owner of, or to beneficially own, (A) securities tendered pursuant to
a tender or exchange offer made by or on behalf of such Person or any
of such Person's Affiliates or Associates until such tendered
securities are accepted for purchase, (B) securities which such
Person has a right to acquire upon the exercise of Rights at any time
prior to the time that any Person becomes an Acquiring Person or (C)
securities issuable upon the exercise of Rights from and after the
time that any Person becomes an Acquiring Person if such Rights were
acquired by such Person or any of such Person's Affiliates or
Associates prior to the Distribution Date or pursuant to Section 3(a)
or Section 22 hereof ("Original Rights") or pursuant to Section 11(i)
or Section 11(p) with respect to an adjustment to Original Rights; or
(ii) the right to vote (whether such right is exercisable
immediately or only upon the occurrence of certain events or the
passage of time or both) pursuant to any agreement, arrangement or
understanding (whether or not in writing) or otherwise; provided,
however, that a Person shall not be deemed the "Beneficial Owner" of
or to "beneficially own" any security under this clause (ii) as a
result of an agreement, arrangement or understanding to vote such
security if such agreement, arrangement or understanding (A) arises
solely from a revocable proxy or consent given in response to a
public proxy or consent solicitation made pursuant to, and in
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accordance with, the applicable rules and regulations under the
Exchange Act and (B) is not also then reportable by such Person on
Schedule 13D under the Exchange Act (or any comparable or successor
report); or
(c) which are beneficially owned, directly or indirectly, by any
other Person (or any Affiliate or Associate thereof) and with respect to
which such Person or any of its Affiliates or Associates has any
agreement, arrangement or understanding (whether or not in writing) (other
than customary agreements with and between underwriters and selling group
members with respect to a bona fide public offering of securities) for the
purpose of acquiring, holding, voting (except pursuant to a revocable
proxy or consent as described in subparagraph (b)(ii) immediately above)
or disposing of any such securities;
provided, however, that no Person who is an officer, director or employee of an
Exempt Person shall be deemed, solely by reason of such Person's status or
authority as such, to be the "Beneficial Owner" of, to have "Beneficial
Ownership" of or to "beneficially own" any securities that are "beneficially
owned", including, without limitation, in a fiduciary capacity, by an Exempt
Person or by any other such officer, director or employee of an Exempt Person.
(e) Section 1 of the Rights Agreement is hereby amended by (i) deleting
from the definition of "Distribution Date" the first instance of the words "(or
such later day as may be designated by action of a majority of the Continuing
Directors)"; (ii) by replacing the second instance of the same words with the
words "(or such later day as may be designated prior to the occurrence of a
Section 11(a)(ii) Event by action of the Board of Directors)"; and (iii)
deleting the words "(other than the Company, any of its Subsidiaries, any
employee benefit plan of the Company or any of its Subsidiaries or any Person
organized, appointed or established by the Company or any of its Subsidiaries
for or pursuant to the terms of any such Plan)."
(f) Section 1 of the Rights Agreement is hereby amended by replacing the
date "August 7, 2000" from the definition of "Final Expiration Date" with the
date "August 7, 2010".
SECTION 2. Adjustment of Purchase Price, Number and Kind of Shares or
Number of Rights. Section 11 of the Rights Agreement is hereby amended by:
(a) deleting the parenthetical clause "(or, if at such time there is an
Acquiring Person, a majority of the Continuing Directors)" in subsection
(a)(iii)(B);
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(b) replacing the words "Substitution Period in order to seek any
authorization of additional shares and/or" in the third sentence of subsection
(a)(iii) thereof with the words "30-day period set forth above in order";
(c) deleting the words "the later of" from the last sentence of subsection
(a)(iii) thereof;
(d) deleting the words "and the first date that the right to redeem the
Rights pursuant to Section 23 shall expire" from the last sentence of
subsection (a)(iii) thereof;
(e) deleting the words "by a majority of the Continuing Directors, or, if
there are no Continuing Directors," from the fourth sentence of subsection
(d)(i) thereof;
(f) deleting the words "selected by the Board of Directors" from the
fourth sentence of subsection (d)(i) thereof;
(g) deleting the words "by a majority of the Continuing Directors then in
office, or, if there are no Continuing Directors," from subsection (d)(iii)
thereof; and
(h) deleting the words "selected by the Board of Directors" from
subsection (d)(iii) thereof.
SECTION 3. Redemption. Section 23(a) of the Rights Agreement is hereby
amended by:
(a) replacing the words "close of business on the tenth day after the
Stock Acquisition Date (or such later date as a majority of the Continuing
Directors may designate prior to such time as the Rights are no longer
redeemable)" in the first sentence thereof with the words "occurrence of a
Section 11(a)(ii) Event";
(b) deleting the proviso from the first sentence thereof and the semicolon
immediately preceding such proviso; and
(c) deleting the last sentence thereof.
SECTION 4. Supplements and Amendments. Section 26 of the Rights Agreement
is hereby amended in its entirety to read in full as follows:
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For so long as the Rights are redeemable, the Company may, and the Rights
Agent shall, if the Company so directs, supplement or amend any provision of
this Agreement in any respect without the approval of any holders of
certificates representing shares of Common Stock. At any time when the Rights
are no longer redeemable, the Company may, and the Rights Agent shall if the
Company so directs, supplement or amend this Agreement without the approval of
any holders of Rights; provided that no such supplement or amendment may (a)
adversely affect the interests of the holders of Rights as such (other than an
Acquiring Person or an Affiliate or Associate of an Acquiring Person), (b)
cause this Agreement again to become amendable other than in accordance with
this sentence, or (c) cause the Rights again to become redeemable; provided
further that no amendment or supplement which alters the rights or duties of
the Rights Agent hereunder may become effective without the prior written
consent of the Rights Agent, which consent shall not be unreasonably withheld.
Upon the delivery of a certificate from an appropriate officer of the Company
which states that the proposed supplement or amendment is in compliance with
the terms of this Section, the Rights Agent shall execute such supplement or
amendment.
SECTION 5. Determination and Actions by the Board of Directors, Etc.
Section 28 of the Rights Agreement is hereby amended by:
(a) deleting the first parenthetical clause from the second sentence
thereof; and
(b) deleting the second parenthetical clause and the words "or the
Continuing Directors" from the last sentence thereof.
SECTION 6. Severability. Section 30 of the Rights Agreement is hereby
amended by deleting the proviso contained therein and the semicolon that
immediately precedes such proviso.
SECTION 7. Form of Right Certificate. Exhibit B to the Rights Agreement is
hereby amended by:
(a) replacing the date "September 6, 2000" in the legend with the date
"May 2, 2010";
(b) replacing the words "close of business on the tenth day after the
Stock Acquisition Date (or such later date as a majority of the Continuing
Directors may designate prior to such time as the Rights are no longer
redeemable)" in the seventh paragraph thereof with the words "occurrence of a
Section 11(a)(ii) Event"; and
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(c) replacing the "19__" in the date line each time it occurs in the "Form
of Reverse Side of Right Certificate" with "2__".
SECTION 8. Summary of Terms. Exhibit C to the Rights Agreement is hereby
amended by:
(a) deleting the words "in each case" in footnote 1 and the comma
immediately following such words.
(b) deleting the definition of "Acquiring Person" under the heading
"Flip-In" and replacing it with the following:
"Acquiring Person" means any person or group of affiliated or associated
persons that becomes the beneficial owner of 20% or more of the Company's
Common Stock, other than certain employee benefit plans of the Company;
provided, however, that (i) if the Board of Directors determines in good faith
that a person who would otherwise be an Acquiring Person became such
inadvertently and without any intention of changing or influencing control of
the Company and if such person promptly divests itself of sufficient shares of
the Company's Common Stock such that the person would no longer be an Acquiring
Person, such person shall not be deemed to be an Acquiring Person and (ii) such
term does not include any person who beneficially owns 20% or more of the
Company's Common Stock (1) as a result of the reduction in the number of shares
of Common Stock outstanding due to the Company's acquisition of its Common
Stock; (2) as a result of (a) transfer by will or the laws of descent and
distribution, (b) the transfer of shares to any member of the transferor's
immediate family or to a trust for the benefit of a member of the transferor's
immediate family (a "Transferee Trust"), (c) a divorce decree or settlement or
(d) the transfer of shares held on the date of the Rights Agreement by any
trust or at any time by any Transferee Trust to any beneficiary of such trust;
or (3) as a result of any acquisition by such person of shares pursuant to any
employee benefit plan of the Company. Any person or group that is not deemed to
be an Acquiring Person by virtue of clauses (i) or (ii) of the preceding
sentence may not acquire additional shares of Common Stock (other than through
the means specified in clauses (i) or (ii) without then becoming an Acquiring
Person)."
(c) restating the language under the heading "Redemption" in its entirety
to read in full as follows:
"The Board of Directors may redeem all of the Rights at a price of $.01
per Right at any time prior to the time that any person becomes an Acquiring
Person."
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(d) replacing the date "August 7, 2000" under the heading "Expiration"
with the date "August 7, 2010".
(e) restating the language under the heading "Amendments" in its entirety
to read in full as follows:
"For so long as the Rights are redeemable, the Rights Agreement may be
amended in any respect."
At any time after the Rights are no longer redeemable, the Rights
Agreement may be amended by the Board of Directors in any respect that does not
(i) adversely affect the Rights holders (other than any Acquiring Person and
certain affiliated persons), (ii) cause the Rights Agreement again to become
amendable other than in accordance with this paragraph or (iii) cause the
Rights again to become redeemable.
No amendment to the Rights Agreement that would alter the rights or duties
of the Rights Agent may be made without the consent of the Rights Agent, which
consent shall not be unreasonably withheld.
SECTION 9. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of South Carolina without
regard to any applicable conflicts of law rules, except that the rights and
obligations of the Rights Agent shall be governed by and construed in
accordance with the laws of the State of New York.
SECTION 10. Counterparts. This Amendment may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
SECTION 11. Effectiveness. This Amendment shall become effective upon
execution by each of the parties hereto of a counterpart hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
THE LIBERTY CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President, General Counsel
and Secretary
Xxxx Xxxxxx Xxx 000
Xxxx Xxxxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Legal Department
AMERICAN STOCK TRANSFER & TRUST
COMPANY, as Rights Agent
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
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