Exhibit 8
FOURTH AMENDMENT TO COMMON STOCK RIGHTS AGREEMENT
This Fourth Amendment to Common Stock Rights Agreement dated as of February
27, 1997 (the "Amendment") is between Xxxxx Equity, Inc., a Florida corporation
(the "Company") and First Union National Bank of North Carolina, as successor
Rights Agent (the "Rights Agent"), and amends the Common Stock Rights Agreement
dated as of September 30, 1990 (as amended and in effect on the date hereof
prior to giving effect to the Amendment, the "Rights Agreement"), between the
Company and the Rights Agent. Terms defined in the Rights Agreement as amended
hereby and not otherwise defined herein are used herein as so defined.
W I T N E S S E T H:
WHEREAS, on September 30, 1990 the Board of Directors of the Company
authorized the issuance of Rights to purchase, on the terms and subject to the
provisions of the Rights Agreement, shares of the Company's Common Stock; and
WHEREAS, on September 30, 1990, the Board of Directors of the Company
authorized and declared a dividend distribution of one Right for every share of
Common Stock of the Company outstanding on the Dividend Record Date and
authorized the issuance of one Right (subject to certain adjustments) for each
share of Common Stock of the Company issued between the Dividend Record Date and
the Distribution Date; and
WHEREAS, the Distribution Date has not occurred; and
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Continuing
Directors have unanimously approved an amendment of certain provisions of the
Rights Agreement as set forth below;
NOW, THEREFORE, the parties hereto agree as follows:
1. New Sections 1(c)-A, 1(c)-B, 1(c)-C and 1(c)-D are added to the Rights
Agreement immediately after Section 1(c) of the Rights Agreement to read in
their entirety as follows:
"(c)-A "Apollo" shall mean AP-KEI Holdings, LLC, a Delaware limited
liability company.
(c)-B "Apollo Affiliate" shall mean (1) a person that directly,
or indirectly through one or more intermediaries, controls, or is controlled
by, or is under common control with the person specified or (2) any relative
or spouse of such person, or any relation of such spouse, who has the same
homeas such person. As used in this definition, the term "control"
(including the terms "controlling", "controlled by" and "under common
control") means the possession, direct or indirect, of the power, whether
exercised or not, to direct or cause the acquisition and/or disposition by
such person of securities of the Company, whether through the ownership of
voting securities or otherwise. To clarify the foregoing, a Person
(including, without limitation, partners, members of limited liability
companies, or co-investors) which would, under the foregoing definitions, be
an "Apollo Affiliate" solely by reason of its common control with a
specified person or an Apollo Affiliate of such specified person shall not
be an "Apollo Affiliate" of such specified person. The term Apollo Affiliate
includes, without limitation, (i) as of the Closing Date (as that term is
defined in the Stock Purchase Agreement) of the Stock Purchase Agreement,
the persons and entities listed on Schedule 7.1 to the Stock Purchase
Agreement; (ii) any person employed by Apollo or any of the Apollo
Affiliates who replaces any individual named on Schedule 7.1 to the Stock
Purchase Agreement or who holds the same or any comparable position for
Apollo or any of the Apollo Affiliates listed on Schedule 7.1 to the Stock
Purchase Agreement; (iii) any Associate (as that term is defined in the
Stock Purchase Agreement) which satisfies the provisions of clauses (1) or
(2) of the first sentence of this definition; and (iv) XXXXX II Realty
Trust, Inc., a Maryland corporation.
(c)-C The term "Apollo Beneficial Owner" (including, without
limitation, "Apollo Beneficial Ownership" and "Apollo Beneficially Owned")
shall have the meanings provided in Section 1(d), except that the term
"Affiliate" therein shall be defined for purposes of this Section 1(c)-C as
Apollo Affiliate. In addition, for purposes of this Section 1(c)-C, if
Apollo or any of the Apollo Affiliates shall form a "group" (as contemplated
by Rule 13d-5(b)(1) under the Exchange Act) with any person, including,
without limitation, any Associate (as that term is defined in the Stock
Purchase Agreement) of Apollo or any of the Apollo Affiliates, for the
purpose of acquiring, holding, voting or disposing of any Common Stock of
the Company, Apollo and the Apollo Affiliates shall be deemed to have
acquired Apollo Beneficial Ownership of Common Stock Apollo Beneficially
Owned by such person.
(c)-D "Apollo Exempt Person" shall have the meaning set forth in
Section 1(v) hereof."
2. Section 1(v) of the Rights Agreement is amended to read in its entirety
as follows:
"(v) "Exempt Person" shall mean:
(i) collectively, TCW Special Credits, a California
general partnership, The TCW Group, Inc. and their Affiliates, only
so long as TCW Special Credits, a California general partnership,
The TCW Group, Inc. and their Affiliates are, collectively, the
Beneficial Owners of shares of Common Stock outstanding in an
amount not in excess of an aggregate of the higher of (A) 23% of
the shares of Common Stock then outstanding and (B) 4,047,350
shares of Common Stock, as adjusted for any stock splits, stock
dividends or other recapitalizations of the Company on or after
August 9, 1993;
(ii) collectively, (A) Apollo and the Apollo Affiliates,
only so long as neither Apollo nor any of the Apollo Affiliates is
the Apollo Beneficial Owner of any Prohibited Security and (B) any
person who is an Affiliate of Apollo to the extent that such
Affiliate would be an Acquiring Person as a result of Beneficially
Owning any Permitted Securities;
provided, however, that if (1) any Exempt Person described in clause (ii) of
this Section 1(v) (each an "Apollo Exempt Person") pledges any Permitted
Securities to one or more Permitted Assignees and (2) any such Permitted
Assignee purchases any such Permitted Securities in connection with any
foreclosure proceedings, then (y) each Apollo Exempt Person shall
immediately and automatically cease to be an Exempt Person hereunder and (z)
such Permitted Assignees, collectively, shall be deemed to be an Exempt
Person hereunder, but only so long as none of such Permitted Assignees is
the Apollo Beneficial Owner of any Prohibited Securities."
3. New Sections 1(aa)-A and 1(aa)-B are added to the Rights Agreement
immediately after Section 1(aa) of the Rights Agreement to read in their
entirety as follows:
"(aa)-A "Permitted Assignee" shall mean (a) a commercial bank or
investment bank organized, or any subsidiary, branch or agency of a foreign
commercial bank or investment bank operating, under the laws of the United
States, or any State thereof, and having total assets in excess of
$1,000,000,000; (b) a savings and loan association or savings bank organized
under the laws of the United States, or any State thereof, and having total
assets in excess of $1,000,000,000; or (c) a finance company, insurance
company or other financial institution organized under the laws of the
United States, or any State thereof, that is engaged in purchasing or
otherwise investing in commercial loans in the ordinary course of business,
having total assets in excess of $100,000,000.
(aa)-B "Permitted Securities" shall mean (a) the Shares (as defined
in the Stock Purchase Agreement); (b) Existing Apollo Shares (as defined in
the Stock Purchase Agreement); (c) the Options (as defined in the Stock
Purchase Agreement) and shares of Common Stock acquired by the exercise of
such Options; (d) that number of shares of Common Stock, which when added to
the number of shares of Common Stock Apollo Beneficially Owned by Apollo and
the Apollo Affiliates under clauses (a), (b) and (c) above, does not exceed
twenty five percent (25%) of the total number of outstanding shares of
Common Stock (determined at the time of any acquisition of Common Stock by
Apollo and the Apollo Affiliates); (e) any securities acquired by Apollo
pursuant to Section 4.4 of the Stock Purchase Agreement, including any
securities received upon exercise, exchange or conversion thereof; (f) any
other shares of Common Stock Apollo Beneficially Owned by Apollo or the
Apollo Affiliates in excess of the total permitted under clauses (a), (b),
(c) and (d) (the "Limit") and without actual knowledge of the fact that such
shares were acquired in excess of the Limit (the "Inadvertent Shares") and
(g) any non-voting securities of the Company Apollo Beneficially Owned by
Apollo or the Apollo Affiliates that are not exchangeable, exercisable or
convertible into voting securities of the Company; provided, however, that
Inadvertent Shares shall become Prohibited Securities unless disposed of by
Apollo or the Apollo Affiliates, as the case may be, within twenty (20)
Business Days from the time that Apollo or such Apollo Affiliate has actual
knowledge that such Inadvertent Shares are owned in violation of the Limit.
In the event that a Permitted Assignee shall exercise its right to transfer
Permitted Securities to itself, the term "Permitted Securities" as to such
Permitted Assignee shall include other shares of Common Stock Apollo
Beneficially Owned by such Permitted Assignee."
4. A new Section 1(cc)-A is added to the Rights Agreement immediately after
Section 1(cc) of the Rights Agreement to read in its entirety as follows:
"(cc)-A "Prohibited Security" shall mean any share of Common Stock,
which is not a Permitted Security."
5. A new Section 1(ii)-A is added to the Rights Agreement immediately after
Section 1(ii) of the Rights Agreement to read in its entirety as follows:
"(ii)-A "Stock Purchase Agreement" shall mean the Stock Purchase
Agreement dated as of October 10, 1996, as amended and in effect from time
to time, between the Company and Apollo."
IN WITNESS WHEREOF, the parties hereto have caused this Fourth Amendment to
Common Stock Rights Agreement to be duly executed as of the day and year first
above written.
XXXXX EQUITY, INC.
By: /s/ W. Xxxxxxxx Xxxxxxx
Title: Vice President
Attest:
By: /s/ Xxxx X. XxXxxx
Assistant Secretary
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA
By: /s/ Xxxxxxx X. Xxxxx
Title: Vice President
