AMENDMENT NO. 1 TO RIGHTS AGREEMENT
Amendment No. 1, dated as of January 31, 2001 ("Amendment No. 1"),
between CBL & Associates Properties, Inc., a Delaware corporation (the
"Company"), and SunTrust Bank, a Georgia corporation, as rights agent (the
"Rights Agent").
WHEREAS, the Company and BankBoston, N.A. entered into that certain
Rights Agreement, dated as of April 30, 1999 (the "Rights Agreement");
WHEREAS, SunTrust Bank, has succeeded BankBoston, N.A as rights agent
under the Rights Agreement;
WHEREAS, as of the date hereof the Distribution Date (as defined in
the Rights Agreement) has not occurred;
WHEREAS, the Company has entered into that certain Master Contribution
Agreement, dated as September 25, 2000, as amended (the "Master Contribution
Agreement"), with CBL & Associates Limited Partnership, a Delaware limited
partnership, ▇▇▇▇▇▇ Realty Investors Limited Partnership, a Delaware limited
partnership ("JRI"), and the other parties thereto;
WHEREAS, as contemplated under the Master Contribution Agreement, the
Company's Amended and Restated Certificate of Incorporation, dated May 2, 1996,
as supplemented by the Certificate of Designation, dated June 25, 1998, and the
Certificate of Designation, dated April 30, 1999, has been further amended
pursuant to a Certificate of Amendment, filed with the Secretary of State of the
State of Delaware on the date hereof (such Certificate of Incorporation, as so
supplemented and amended, the "Current Certificate of Incorporation"), a copy of
which amendment is attached hereto as Exhibit A;
WHEREAS, the Company has entered into that certain Share Ownership
Agreement, dated as of the date hereof (the "Share Ownership Agreement"), with
JRI and the other parties thereto, a copy of which Agreement is attached hereto
as Exhibit B; and
WHEREAS, in connection with the principal closing of the transaction
contemplated under the Master Contribution Agreement, and as required under
Section 4.10 of the Master Contribution Agreement, the Company desires to amend
the Rights Agreement in accordance with Section 27 thereof, as further provided
herein;
NOW, THEREFORE, in consideration of the premises and mutual agreements
set forth in the Rights Agreement and this Amendment No. 1, the parties hereby
agree as follows:
SECTION 1. Amendment to Definition of "Acquiring Person". The first
sentence of Section 1(a) of the Rights Agreement is hereby deleted and replaced
in its entirety with the following:
(a) "Acquiring Person" shall mean any Person who or which,
together with all Affiliates and Associates of such Person, shall be
the Beneficial Owner of 15% or more of the shares of Common Stock then
outstanding, but shall not include (i) the Company, (ii) any
Subsidiary of the Company, (iii) any employee benefit plan of the
Company or of any Subsidiary of the Company, (iv) any Person or entity
holding shares of Common Stock for or pursuant to the terms of any
such plan to the extent, and only to the extent, of such shares so
held, (v) any member of the Lebovitz Group or (vi) the ▇▇▇▇▇▇ Group or
any of its members provided that such Person does not Beneficially Own
or Constructively Own Equity Stock ("Beneficially Own",
"Constructively Own" and "Equity Stock", for purposes of this clause
(vi) only, as defined in the Current Certificate of Incorporation) in
excess of the ▇▇▇▇▇▇ Permitted Ownership Amount.
SECTION 2. Amendment to Definition of "Distribution Date". Section
1(k) of the Rights Agreement is hereby deleted and replaced in its entirety with
the following:
(k) "Distribution Date" shall mean the earlier of (i) the Close
of Business on the tenth day after the Stock Acquisition Date (or, if
the tenth day after the Stock Acquisition Date occurs before the
Record Date, the Close of Business on the Record Date), or (ii) the
Close of Business on the tenth Business Day (or, if such tenth
Business Day occurs before the Record Date, the Close of Business on
the Record Date), or such specified or unspecified later date on or
after the Record Date as may be determined by action of the Board
prior to such time as any Person becomes an Acquiring Person, after
the date that a tender or exchange offer by any Person (other than the
Company, any Subsidiary of the Company or any employee benefit plan of
the Company or of any Subsidiary of the Company or any Person or
entity holding shares of Common Stock for or pursuant to the terms of
any such plan or any member of the Lebovitz Group) is first published
or sent or given within the meaning of Rule 14d-2(a) of the General
Rules and Regulations under the Exchange Act, if (a) with respect to
any Person other than the ▇▇▇▇▇▇ Group or any of its members, upon
consummation thereof, such Person would be the Beneficial Owner of 15%
or more of the outstanding shares of Common Stock and (b) with respect
to the ▇▇▇▇▇▇ Group or any of its members, upon consummation thereof,
such Person would Beneficially Own or Constructively Own Equity Stock
("Beneficially Own", "Constructively Own" and "Equity Stock", for
purposes of this clause (b) only, as defined in the Current
Certificate of Incorporation) in excess of the ▇▇▇▇▇▇ Permitted
Ownership Amount.
SECTION 3. Amendment of Section 1 to Add Certain Definitions. Section
1 is hereby amended to add the following definitions:
"▇▇▇▇▇▇ Family Member" shall mean each of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, any
spouse or lineal descendant of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ or ▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
and any spouse or lineal descendant of any of the foregoing.
"▇▇▇▇▇▇ Group" shall have the meaning set forth in the Current
Certificate of Incorporation, except that the term "▇▇▇▇▇▇ Group"
shall not be deemed to include any entity unless (i) at least 51% of
the economic interests in such entity are beneficially owned (as
defined in Rule 13d-3 of the General Rules and Regulations under the
Exchange Act) by one or more ▇▇▇▇▇▇ Family Members; and (ii) such
entity is controlled exclusively by one or more ▇▇▇▇▇▇ Family Members,
provided however, that each of the ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Revocable Living
Trust and the ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Marital Trust shall be deemed to be a
member of the ▇▇▇▇▇▇ Group so long as it satisfies the conditions of
clause (i) above regardless of how it is controlled.
"▇▇▇▇▇▇ Permitted Ownership Amount" shall have the meaning set
forth in the Share Ownership Agreement.
SECTION 4. Rights Agreement as Amended. The term "Agreement" as used
in the Rights Agreement shall be deemed to refer to the Rights Agreement as
amended hereby and shall be deemed to include the additional terms defined in
this Amendment No. 1. The foregoing amendments 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 shall be otherwise unaffected hereby.
SECTION 5. Acknowledgment. The Company hereby acknowledges its
existing obligations under Section 4.10 of the Master Contribution Agreement
with respect to any further amendments to the Rights Agreement as amended
hereby.
SECTION 6. Counterparts. This Amendment No. 1 may be executed in any
number of counterparts, and each of such counterparts shall for all purposes be
deemed an original and all such counterparts shall together constitute but one
and same instrument.
SECTION 7. Governing Law. This Amendment No. 1 shall be deemed to be a
contract made under the laws of the State of Delaware and for all purposes shall
be governed by and construed in accordance with the laws of such State
applicable to contracts made and to be performed entirely within such State.
SECTION 8. Descriptive Headings. Descriptive headings of this
Amendment No. 1 are inserted for convenience only and shall not control or
affect the meaning or construction of any of the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No.
1 to Rights Agreement to be duly executed as of the day and year first above
written.
CBL & ASSOCIATES PROPERTIES, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇
------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇
Title: Vice Chairman and Chief Financial
Officer
SUNTRUST BANK,
as Rights Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Assistant Vice President
EXHIBIT A
CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
CBL & ASSOCIATES PROPERTIES, INC.
1. The name of the corporation (which is hereinafter referred to as the
"Corporation") is "CBL & Associates Properties, Inc."
2. The Amended and Restated Certificate of Incorporation of the
Corporation, dated November 2, 1993, as amended by the Certificate of Amendment
to the Amended and Restated Certificate of Incorporation, dated May 2, 1996, as
supplemented by the Certificate of Designation, dated June 25, 1998, and the
Certificate of Designation, dated April 30, 1999, (the "Amended and Restated
Certificate of Incorporation") shall be further amended as provided below.
3. This Certificate of Amendment has been duly proposed by resolutions
adopted and declared advisable by the Board of Directors of the Corporation,
duly adopted by the stockholders of the Corporation and duly executed and
acknowledged by the officers of the Corporation in accordance with the
provisions of Sections 103 and 242 of the General Corporation Law of the state
of Delaware.
4. The text of Article IV of the Amended and Restated Certificate of
Incorporation of the Corporation is hereby amended as follows:
ARTICLE IV
1. The definition of "Beneficial Ownership Limit" shall be amended to read
as follows:
"Beneficial Ownership Limit" shall mean (A) with respect to any Person
other than a Family Group or a member thereof, 6% of the outstanding Equity
Stock of the Corporation, (B) with respect to the Family Groups and their
members in the aggregate, 37.99% of the outstanding Equity Stock of the
Corporation, (C) with respect to the Lebovitz Group and its members in the
aggregate, 25.4% of the outstanding Equity Stock of the Corporation, (D) with
respect to any single member of the ▇▇▇▇▇ ▇▇▇▇▇▇ Group or the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Group that is an Individual, 13.9% of the outstanding Equity Stock of the
Corporation, (E) with respect to any two members of the ▇▇▇▇▇ ▇▇▇▇▇▇ Group or
the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Group that are Individuals, 19.9% of the outstanding Equity
Stock of the Corporation and (F) with respect to ▇▇▇▇▇▇ Group and its members in
the aggregate, 19.9% of the outstanding Equity Stock of the Corporation; in each
case, determined by number of shares outstanding, voting power (disregarding, in
the case of the ▇▇▇▇▇▇ Group and its members, any power to designate nominees to
the Corporation's Board of Directors pursuant to the Voting and Standstill
Agreement dated September 25, 2000 among the Corporation, CBL & Associates
Limited Partnership, ▇▇▇▇▇▇ Realty Investors Limited Partnership and others (the
"Voting and Standstill Agreement")) or value (as determined by the
Board of Directors), whichever produces the smallest holding of Equity Stock and
computed taking into account all outstanding shares of Equity Stock and, to the
extent provided by the Code in connection with the determination required by
Section 856(a)(6) of the Code, all shares of Equity Stock issuable under
existing Options and Exchange Rights that have not been exercised or Deferred
Stock that has not vested; provided, however, that (i) in no event shall the
Lebovitz Group or any Person composed of one or more members of the Lebovitz
Group be treated as Beneficially Owning Equity Stock in excess of the
limitations set forth in clauses (B) or (C) above to the extent that the
Lebovitz Group Beneficially Owns not more than the Lebovitz Permitted Ownership
Amount and (ii) in no event shall the ▇▇▇▇▇▇ Group, the ▇▇▇▇▇ ▇▇▇▇▇▇ Group, the
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Group or any Person composed of one or more members of any such
group be treated as Beneficially Owning Equity Stock in excess of the
limitations set forth in clauses (B) or (F) above to the extent that the ▇▇▇▇▇▇
Group Beneficially Owns not more than the ▇▇▇▇▇▇ Permitted Ownership Amount.
2. The definition of "Constructive Ownership Limit" shall be amended to
read as follows:
"Constructive Ownership Limit" shall mean (A) with respect to any Person
other than a Family Group or a member thereof, 6% of the outstanding Equity
Stock of the Corporation and (B) with respect to the Family Groups and their
members in the aggregate, 37.99% of the outstanding Equity Stock of the
Corporation; in each case, determined by number of shares outstanding, voting
power (disregarding, in the case of the ▇▇▇▇▇▇ Group and its members, any power
to designate nominees to the Corporation's Board of Directors pursuant to the
Voting and Standstill Agreement) or value (as determined by the Board of
Directors), whichever produces the smallest holding of Equity Stock and computed
taking into account all outstanding shares of Equity Stock and, to the extent
provided by the Code in connection with the determination required by Section
856(d)(2)(B) of the Code, all shares of Equity Stock issuable under existing
Options and Exchange Rights that have not been exercised or Deferred Stock that
has not vested; provided, however, that (I) except as provided in clause (II)
hereof, (i) in no event shall the Lebovitz Group or any Person composed of one
or more members of the Lebovitz Group be treated as Constructively Owning Equity
Stock in excess of the Constructive Ownership Limit to the extent that the
Lebovitz Group Constructively Owns not more than the Lebovitz Permitted
Ownership Amount and (ii) in no event shall the ▇▇▇▇▇▇ Group, the ▇▇▇▇▇ ▇▇▇▇▇▇
Group, the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Group or any Person composed of one or more members of
any such group be treated as Constructively Owning Equity Stock in excess of the
Constructive Ownership Limit to the extent that the ▇▇▇▇▇▇ Group and its members
Constructively Own not more than the ▇▇▇▇▇▇ Permitted Ownership Amount and (II)
a member of the Lebovitz Group or the ▇▇▇▇▇▇ Group (but not the Lebovitz Group
or the ▇▇▇▇▇▇ Group themselves) will be subject to a Constructive Ownership
Limit of 9.9% of the outstanding Equity Stock of the Corporation at all times
that (x) such member, together with other members of the Lebovitz Group or the
▇▇▇▇▇▇ Group, as the case may be, each of whom Constructively Owns at least 10%
of the outstanding Equity Stock of the Corporation, Constructively Own, in the
aggregate (a) 10% or more of the total voting power, number of outstanding
shares or value of the outstanding shares of any Tenant that is treated as a
corporation for federal income tax purposes or (b) an interest of 10% or more in
the assets or net profits of any Tenant that is not treated as a corporation for
federal income tax purposes, (y) such member Constructively Owns an equity
interest in such Tenant and (z) the aggregate amount of
2
gross income derived by the Corporation in its immediately preceding taxable
year from the Tenants whose ownership is described in clause (x) (taking into
account only ownership by such member and other members of the Group that
includes such member) exceeded $750,000.
3. The definition of "▇▇▇▇▇▇▇ Group" and all references thereto shall be
deleted.
4. Subparagraph (D)(9) of Article IV is amended by substituting "result in
violation of Section 856(h) of the Code or the receipt of nonqualified income
under Section 856(d)(2)(B) of the Code" for "violate the applicable Ownership
Limit" on the fourth-to-last line thereof.
5. The following definitions shall be added to Article IV(D)(1):
"▇▇▇▇▇ ▇▇▇▇▇▇ Group" shall mean (i) the widow of ▇▇▇▇▇ ▇▇▇▇▇▇, (ii) the
lineal descendants of ▇▇▇▇▇ ▇▇▇▇▇▇ and (iii) all Persons that would
Constructively Own or Beneficially Own shares of Equity Stock Constructively
Owned or Beneficially Owned by individuals described in (i) or (ii).
"Family Groups" shall mean the Lebovitz Group, the ▇▇▇▇▇ ▇▇▇▇▇▇ Group and
the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Group.
"Individuals" shall mean Persons that are treated as "individuals" for
purposes of Section 542(a)(2) of the Code.
"▇▇▇▇▇▇ Group" shall mean the ▇▇▇▇▇ ▇▇▇▇▇▇ Group, the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Group
and the members of such groups.
"▇▇▇▇▇▇ Permitted Ownership Amount" shall be defined and adjusted as in the
Share Ownership Agreement.
"Lebovitz Permitted Ownership Amount" shall be defined and adjusted as in
the Share Ownership Agreement.
"▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Group" shall mean (i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and each member of his
family for purposes of Section 318(a) or 544 of the Code and (ii) all Persons
that would Constructively Own or Beneficially Own shares of Equity Stock
Constructively Owned or Beneficially Owned by individuals described in (i).
"Share Ownership Agreement" shall mean the Share Ownership Agreement, dated
as of [January 31, 2001] by and between the Corporation, CBL & Associates, Inc.,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ Realty Investors Limited
Partnership, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, solely as trustee for the ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Revocable Living Trust and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, solely as trustee for the ▇▇▇▇▇ ▇.
▇▇▇▇▇▇ Marital Trust, as such may be amended from time to time by the parties
thereto.
6. The following subparagraph is added to Article IV(D)(3):
3
(c) If the Lebovitz Group or a member thereof or the ▇▇▇▇▇▇ Group or a
member thereof would otherwise Beneficially Own or Constructively Own shares of
Capital Stock in excess of the Lebovitz Permitted Ownership Amount, in the case
of the Lebovitz Group and its members, or the ▇▇▇▇▇▇ Permitted Ownership Amount,
in the case of the ▇▇▇▇▇▇ Group and its members, then the shares of Equity Stock
that otherwise would be so Beneficially Owned or Constructively Owned shall be
designated Shares-in-Trust hereunder and, in accordance with subparagraph E of
this Article IV, transferred automatically and by operation of law to a Trust;
provided, however, that this clause (c) will not apply where the Beneficial and
Constructive Ownership of shares of Equity Stock by the ▇▇▇▇▇▇ Group and its
members, or the Lebovitz Group and its members, as the case may be, would not
violate the limitations that would be imposed upon such group and its members if
there were no special references to such group and its members in this
Certificate of Incorporation.
7. A new subparagraph (D)(14) shall be added to read as follows:
(14) No amendment to this Article IV or modification of the Ownership
Limits pursuant to Article IV(D)(10) or any successor provision shall be
effective if such amendment is adverse to the ▇▇▇▇▇▇ Group or any of its members
(unless ▇▇▇▇▇▇ Realty Investors Limited Partnership, a Delaware limited
partnership, consents) or to the Lebovitz Group or any of its members (unless
LebFam, Inc., a Tennessee corporation, consents) and is not undertaken with
unanimous prior approval of the Corporation's Board of Directors. For the
avoidance of doubt, a decrease in the Standard Beneficial Ownership Limit or a
modification of the Beneficial Ownership Limit in accordance with Article III of
the Share Ownership Agreement shall not be treated as adversely affecting the
▇▇▇▇▇▇ Group or its members or the Lebovitz Group or its members. References in
this subparagraph (D)(14) to the ▇▇▇▇▇▇ Group or any of its members shall be
deemed deleted after the Share Ownership Agreement has terminated with respect
to the ▇▇▇▇▇▇ Group and its Members. References in this subparagraph (D)(14) to
the Lebovitz Group or any of its members shall be deemed deleted after the Share
Ownership Agreement has terminated with respect to the Lebovitz Group and its
Members.
8. A new subparagraph (I) for Article IV shall be added to read as follows:
I Furnishing Copies
Copies of the Voting and Standstill Agreement and the Share Ownership
Agreement will be furnished by the Corporation without charge to each
shareholder who so requests.
4
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment to be signed by its Chairman of the Board and Chief Executive Officer
and attested to by its Secretary this __ day of ________, 2001.
CBL & ASSOCIATES PROPERTIES, INC.
BY:
------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Chairman of the Board
and Chief Executive Officer
Attest:
------------------------------
▇▇▇▇ ▇. ▇▇▇
Secretary
5
EXHIBIT B
SHARE OWNERSHIP AGREEMENT
THIS SHARE OWNERSHIP AGREEMENT is made as of the 31st day of January, 2001,
by and among CBL & Associates Properties, Inc., CBL & Associates, Inc., LebFam,
Inc., ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ Realty Investors Limited
Partnership, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, solely as trustee for the ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Revocable Living Trust, and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, solely as trustee for the ▇▇▇▇▇
▇. ▇▇▇▇▇▇ Marital Trust.
WITNESSETH:
-----------
WHEREAS, the Master Contribution Agreement dated September 25, 2000 among
▇▇▇▇▇▇ Realty Investors Limited Partnership, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, solely as
Trustee for the ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Revocable Living Trust, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
solely as Trustee for the ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Marital Trust, CBL & Associates, Inc.
and CBL & Associates Limited Partnership, as amended, (the "Master Contribution
Agreement"), requires that the Board of Directors of CBL & Associates
Properties, Inc. (the "Corporation") adopt a Resolution in the form set forth in
Schedule 4.15(b)-2 to the Master Contribution Agreement (the "Resolution");
WHEREAS, the Master Contribution Agreement requires that the Corporation
seek to have its Amended and Restated Certificate of Incorporation, dated
November 2, 1993, as amended by the Certificate of Amendment to the Amended and
Restated Certificate of Incorporation, dated May 2, 1996, as supplemented by the
Certificate of Designation, dated June 25, 1998, and the Certificate of
Designation, dated April 30, 1999 (the "Certificate of Incorporation") further
amended in the manner set forth in Schedule 4.15(b)-1 to the Master Contribution
Agreement (the "Charter Amendment");
WHEREAS, the Resolution and the Charter Amendment provide that if the
Lebovitz Group or a member thereof or the ▇▇▇▇▇▇ Group or a member thereof would
otherwise Beneficially Own or Constructively Own shares of Capital Stock in
excess of the Lebovitz Permitted Ownership Amount, in the case of the Lebovitz
Group and its members, or the ▇▇▇▇▇▇ Permitted Ownership Amount, in the case of
the ▇▇▇▇▇▇ Group and its members, then such excess shares of Equity Stock shall
be designated Shares-in-Trust and, in accordance with subparagraph E of Article
IV of the Certificate of Incorporation, transferred automatically and by
operation of law to a Trust; provided, however, that such rule will not apply
where the Beneficial and Constructive Ownership of shares of Equity Stock by the
▇▇▇▇▇▇ Group and its members, or the Lebovitz Group and its members, as the case
may be, would not violate the limitations that would be imposed upon such group
and its members if there were no special references to such group and its
members in the Certificate of Incorporation or the Resolution;
WHEREAS, the parties hereto desire, for purposes of the Resolution and the
Charter Amendment, to specify the initial Lebovitz Permitted Ownership Amount
and ▇▇▇▇▇▇ Permitted Ownership Amount and to specify how such amounts shall be
adjusted;
NOW THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
partie hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1. The following terms shall have the following meanings when used in
this Agreement.
"▇▇▇▇▇▇ Permitted Ownership Amount" shall mean 4,690,000 shares of Common
Stock, as adjusted pursuant to the provisions of Article II hereof.
"Lebovitz Permitted Ownership Amount" shall mean 6,300,000 shares of Common
Stock, as adjusted pursuant to the provisions of Article II hereof.
"Standard Beneficial Ownership Limit" shall mean the percentage of the
outstanding Equity Stock of the Corporation referred to in clause (A) of the
definition of "Beneficial Ownership Limit" set forth in the Certificate of
Incorporation.
"Units" shall mean interests in CBL & Associates Limited Partnership, or
any successor thereto, or any similar entity, which interests are, by their
terms or the terms of the governing instruments of such entity, convertible into
or exchangeable for shares of Common Stock of the Corporation.
1.2. Terms used but not defined in this Agreement have the meanings given
such terms in the Resolution and Charter Amendment or, if no meaning is given
such terms in the Resolution or Charter Amendment, the meanings given such term
in the Corporation's Certificate of Incorporation as of the date hereof.
ARTICLE II
ADJUSTMENTS
2.1. The ▇▇▇▇▇▇ Permitted Ownership Amount and the Lebovitz Permitted
Ownership Amount shall be increased as appropriate to reflect stock splits and
-2-
similar changes to the Common Stock and shall be decreased as appropriate to
reflect reverse stock splits and similar changes to the Common Stock.
2.2. In the event of an issuance of Common Stock by the Corporation other
than an issuance of Common Stock (i) to the extent described in Section 2.3
below or (ii) to a member of the Lebovitz Group or the ▇▇▇▇▇▇ Group upon the
conversion or exchange of Units, the ▇▇▇▇▇▇ Permitted Ownership Amount and the
Lebovitz Permitted Ownership Amount will each be increased by 15.995% of the
number of shares of Common Stock issued.
2.3. The ▇▇▇▇▇▇ Permitted Ownership Amount and the Lebovitz Permitted
Ownership Amount shall not be increased in the event of an issuance of Common
Stock other than for cash, to the extent that (i) in connection with such
issuance (or the earlier issuance of Units or securities convertible into Common
Stock) the Corporation agrees that the Person (who is not a member of the ▇▇▇▇▇▇
Group or the Lebovitz Group) to whom the Common Stock is issued shall be subject
to a Beneficial Ownership Limit in excess of the Standard Beneficial Ownership
Limit, (ii) such special Beneficial Ownership Limit is necessary to permit the
Person to Beneficially Own at such times as may be agreed all of the shares of
Common Stock issued or to be issued to such Person (treating all Units held by
such Person as converted or exchanged for shares of Common Stock) and (iii) the
increases in the ▇▇▇▇▇▇ Permitted Ownership Amount and the Lebovitz Permitted
Ownership Amount that would otherwise be required by Section 2.2 would have
precluded the creation of such special Beneficial Ownership Limit.
2.4. In the event of a repurchase of Common Stock by the Corporation other
than from a member of the Lebovitz Group or ▇▇▇▇▇▇ Group, the ▇▇▇▇▇▇ Permitted
Ownership Amount shall be reduced by 15.995% of the number of shares of Common
Stock repurchased; provided that if prior to such repurchase a portion of the
▇▇▇▇▇▇ Permitted Ownership Amount has been reallocated to the Lebovitz Permitted
Ownership Amount pursuant to Section 2.10 hereof, then the repurchase will not
result in a reduction of the ▇▇▇▇▇▇ Permitted Ownership Amount to the extent
that the ▇▇▇▇▇▇ Permitted Ownership Amount would otherwise have been reduced
below an amount equal to the lesser of 4,690,000 shares of Common Stock or the
total number of shares of Common Stock Beneficially Owned or Constructively
Owned by the ▇▇▇▇▇▇ Group at the time of the repurchase (treating all Units
Beneficially or Constructively Owned by the ▇▇▇▇▇▇ Group as exchanged for shares
of the Corporation's Common Stock), but instead the repurchase will cause a
reduction in the Lebovitz Permitted Ownership Amount in an amount, not to exceed
the capacity previously reallocated to the Lebovitz Permitted Ownership Amount
pursuant to Section 2.10 hereof, by the amount that the ▇▇▇▇▇▇ Permitted
Ownership Amount would but for this proviso otherwise have been reduced.
-3-
2.5. In the event of a repurchase of Common Stock by the Corporation other
than from a member of the ▇▇▇▇▇▇ Group or Lebovitz Group, the Lebovitz Permitted
Ownership Amount shall be reduced by 15.995% of the number of shares of Common
Stock repurchased; provided that if prior to such repurchase a portion of the
Lebovitz Permitted Ownership Amount has been reallocated to the ▇▇▇▇▇▇ Permitted
Ownership Amount pursuant to Section 2.11 hereof, then the repurchase will not
result in a reduction of the Lebovitz Permitted Ownership Amount to the extent
that the Lebovitz Permitted Ownership Amount would otherwise have been reduced
below an amount equal to the lesser of 6,300,000 shares of Common Stock or the
total number of shares of Common Stock Beneficially or Constructively Owned by
the Lebovitz Group at the time of the repurchase (treating all Units
Beneficially Owned or Constructively Owned by the Lebovitz Group as exchanged
for shares of the Corporation's Common Stock), but instead the repurchase will
cause a reduction in the ▇▇▇▇▇▇ Permitted Ownership Amount in an amount, not to
exceed the capacity previously reallocated to the ▇▇▇▇▇▇ Permitted Ownership
Amount pursuant to Section 2.11 hereof, by the amount that the Lebovitz
Permitted Ownership Amount would but for this proviso otherwise have been
reduced.
2.6. In the event of a repurchase of Common Stock by the Corporation from a
member of the ▇▇▇▇▇▇ Group, the ▇▇▇▇▇▇ Permitted Ownership Amount shall be
reduced by 31.99% of the number of shares of Common Stock repurchased.
2.7. In the event of a repurchase of Common Stock by the Corporation from a
member of the Lebovitz Group, the Lebovitz Permitted Ownership Amount shall be
reduced by 31.99% of the number of shares of Common Stock repurchased.
2.8. If Beneficial Ownership or Constructive Ownership by the ▇▇▇▇▇▇ Group
of shares of Common Stock equal to the ▇▇▇▇▇▇ Permitted Ownership Amount would
otherwise result in either (i) a violation of clause (A) or clause (E) of the
definition of "Beneficial Ownership Limit" in the Resolution or (ii) a violation
of the definition of "Constructive Ownership Limit" in the Resolution, then, to
the extent that such result would not occur but for acquisitions of Beneficial
Ownership or Constructive Ownership of Equity Shares by the Lebovitz Group or
its members pursuant to a transaction or event occurring after September 25,
2000 that did not result in an increase in the number of shares of Equity Stock
deemed outstanding for purposes of applying Section 856(a)(6) of the Code
("Lebovitz Open Market Transactions"), the Lebovitz Permitted Ownership Amount
shall be reduced to the extent necessary to permit Beneficial Ownership by the
▇▇▇▇▇▇ Group of the ▇▇▇▇▇▇ Permitted Ownership Amount without violating the
Beneficial Ownership Limit or the Constructive Ownership Limit in the manner
described above. The reduction in the Lebovitz Permitted Ownership Amount
described in the preceding sentence shall be deemed to occur immediately before
the acquisition by the ▇▇▇▇▇▇ Group or a member thereof of Beneficial Ownership
or Constructive Ownership of Common Stock that would otherwise have violated the
limitations described above. The number of shares of Equity Stock which the
Lebovitz Group shall
-4-
be treated as having acquired in Lebovitz Open Market Transactions for purposes
of this Section 2.8 shall be reduced to reflect transactions and other events
occurring after September 25, 2000 which decrease the number of shares of Equity
Stock Beneficially or Constructively Owned by the Lebovitz Group and its
members.
2.8A. If Beneficial Ownership or Constructive Ownership by the ▇▇▇▇▇▇ Group
of shares of Common Stock equal to the ▇▇▇▇▇▇ Permitted Ownership Amount would
result in either (i) a violation of clause (B) or clause (F) of the definition
of "Beneficial Ownership Limit" in the Certificate of Incorporation but for the
proviso set forth in such definition or (ii) a violation of clause (B) of the
definition of "Constructive Ownership Limit" but for the proviso set forth in
such definition, then, to the extent that such result would not have occurred
but for Lebovitz Open Market Transactions, the Lebovitz Permitted Ownership
Amount shall be reduced to the extent necessary to permit Beneficial Ownership
by the ▇▇▇▇▇▇ Group of the ▇▇▇▇▇▇ Permitted Ownership Amount without violating
the Beneficial Ownership Limit or the Constructive Ownership Limit in the manner
described above. The reduction in the Lebovitz Permitted Ownership Amount
described in the preceding sentence shall be deemed to occur immediately before
the acquisition by the ▇▇▇▇▇▇ Group or a member thereof of Beneficial Ownership
or Constructive Ownership of Common Stock that would otherwise have violated the
limitations described above. The number of shares of Equity Stock which the
Lebovitz Group shall be treated as having acquired in Lebovitz Open Market
Transactions for purposes of this Section 2.8A shall be reduced to reflect
transactions and other events occurring after September 25, 2000 which decrease
the number of shares of Equity Stock Beneficially or Constructively Owned by the
Lebovitz Group and its members.
2.9. If Beneficial Ownership or Constructive Ownership by the Lebovitz
Group of shares of Common Stock equal to the Lebovitz Permitted Ownership Amount
would otherwise result in either (i) a violation of clause (A) or clause (B) of
the definition of "Beneficial Ownership Limit" in the Resolution or (ii) a
violation of the definition of "Constructive Ownership Limit" in the Resolution,
then, to the extent that such result would not occur but for acquisitions of
Beneficial Ownership or Constructive Ownership of Equity Shares by the ▇▇▇▇▇▇
Group or its members pursuant to a transaction or event occurring after
September 25, 2000 that did not result in an increase in the number of shares of
Equity Stock deemed outstanding for purposes of applying Section 856(a)(6) of
the Code ("▇▇▇▇▇▇ Open Market Transactions"), the ▇▇▇▇▇▇ Permitted Ownership
Amount shall be reduced to the extent necessary to permit Beneficial Ownership
by the Lebovitz Group of the Lebovitz Permitted Ownership Amount without
violating the Beneficial Ownership Limit or the Constructive Ownership Limit in
the manner described above. The reduction in the ▇▇▇▇▇▇ Permitted Ownership
Amount described in the preceding sentence shall be deemed to occur immediately
before the acquisition by the Lebovitz Group or a member thereof of Beneficial
Ownership or Constructive Ownership of Common Stock that would otherwise have
violated the limitations described above. The number of shares of Equity Stock
which the ▇▇▇▇▇▇ Group shall be treated as having
-5-
acquired in ▇▇▇▇▇▇ Open Market Transactions for purposes of this Section 2.9
shall be reduced to reflect transactions and other events occurring after
September 25, 2000 which decrease the number of shares of Equity Stock
Beneficially or Constructively Owned by the ▇▇▇▇▇▇ Group and its members.
2.9A. If Beneficial Ownership or Constructive Ownership by the Lebovitz
Group of shares of Common Stock equal to the Lebovitz Permitted Ownership Amount
would result in either (i) a violation of clause (B) or clause (C) of the
definition of "Beneficial Ownership Limit" in the Certificate of Incorporation
but for the proviso set forth in such definition or (ii) a violation of clause
(B) of the definition of "Constructive Ownership Limit" but for the proviso set
forth in such definition, then, to the extent that such result would not have
occurred but for ▇▇▇▇▇▇ Open Market Transactions, the ▇▇▇▇▇▇ Permitted Ownership
Amount shall be reduced to the extent necessary to permit Beneficial Ownership
by the Lebovitz Group of the Lebovitz Permitted Ownership Amount without
violating the Beneficial Ownership Limit or the Constructive Ownership Limit in
the manner described above. The reduction in the ▇▇▇▇▇▇ Permitted Ownership
Amount described in the preceding sentence shall be deemed to occur immediately
before the acquisition by the Lebovitz Group or a member thereof of Beneficial
Ownership or Constructive Ownership of Common Stock that would otherwise have
violated the limitations described above. The number of shares of Equity Stock
which the ▇▇▇▇▇▇ Group shall be treated as having acquired in ▇▇▇▇▇▇ Open Market
Transactions for purposes of this Section 2.9A shall be reduced to reflect
transactions and other events occurring after September 25, 2000 which decrease
the number of shares of Equity Stock Beneficially or Constructively Owned by the
▇▇▇▇▇▇ Group and its members.
2.10. To the extent that the ▇▇▇▇▇▇ Permitted Ownership Amount exceeds the
total number of shares of Common Stock Beneficially Owned or Constructively
Owned by the members of the ▇▇▇▇▇▇ Group, treating all Units Beneficially or
Constructively Owned by such members as exchanged for shares of the
Corporation's Common Stock, then the ▇▇▇▇▇▇ Permitted Ownership Amount will be
reduced by the amount of such excess and there shall be a corresponding increase
in the Lebovitz Permitted Ownership Amount.
2.11. To the extent that the Lebovitz Permitted Ownership Amount exceeds
the total number of shares of Common Stock Beneficially Owned or Constructively
Owned by the members of the Lebovitz Group, treating all Units Beneficially or
Constructively Owned by such members as exchanged for shares of the
Corporation's Common Stock, and such excess has existed for at least one year,
then the Lebovitz Permitted Ownership Amount will be reduced by the amount of
such excess and there shall be a corresponding increase in the ▇▇▇▇▇▇ Permitted
Ownership Amount.
-6-
2.12. Adjustments to the Lebovitz Permitted Ownership Amount and the ▇▇▇▇▇▇
Permitted Ownership Amount under this Article II shall be computed from
September 25, 2000.
2.13. Notwithstanding anything in this Article II to the contrary, in no
event shall any adjustment hereunder result in the Lebovitz Permitted Ownership
Amount being less than that permitted by the Standard Beneficial Ownership Limit
and in no event shall any adjustment hereunder result in the ▇▇▇▇▇▇ Permitted
Ownership Amount being less than 200% of the Standard Beneficial Ownership
Limit.
ARTICLE III
MODIFICATIONS
3.1. The Corporation and the other parties agree that clauses (A) through
(E) of the definition of "Beneficial Ownership Limit" in the Resolution may be
modified by the Board of Directors of the Corporation pursuant to subparagraph
D(10) of Article IV of the Certificate of Incorporation without the consent of
the parties hereto only in accordance with the restrictions set forth in this
Article III.
3.2. (a) The Corporation and the other parties hereto agree that, except as
explicitly permitted by Section 3.2(b) hereof or Section 3.2(e) hereof, in no
event may (i) any of clauses (A) through (E) of the definition of "Beneficial
Ownership Limit" in the Resolution be modified or amended or (ii) there be any
modification to the definition of "Beneficial Ownership Limit" in the
Certificate of Incorporation in any manner that, in either case, would either
(x) reduce at any time the ▇▇▇▇▇▇ Permitted Ownership Amount or otherwise limit
in any way the right of the ▇▇▇▇▇▇ Group and its members to acquire Beneficial
Ownership of shares of Equity Stock or (y) reduce at any time the Lebovitz
Permitted Ownership Amount or otherwise limit in any way the right of the
Lebovitz Group and its members to acquire Beneficial Ownership of shares of
Equity Stock.
(b) An amendment or modification that would otherwise be prohibited by
Section 3.2(a) hereof shall be permitted if all of the following
requirements are satisfied:
(i) the amendment or modification creates (x) an ownership limit that
applies on an aggregate basis to (I) the ▇▇▇▇▇▇ Group and its members, (II)
the Lebovitz Group and its members and (III) an additional Person or group
(such Person or group, the "Third Holder") to which shares of the
Corporation's Equity Stock or Units are being issued by the Corporation or
may be issued by the Corporation in exchange for or on the conversion of
Units of CBL & Associates Limited Partnership or interests in another
entity in which the Corporation or
-7-
CBL & Associates Limited Partnership has an interest, and (y) a "permitted
ownership amount" with respect to the Third Holder;
(ii) the amendment or modification would not limit in any manner or
circumstance the ability of the ▇▇▇▇▇▇ Group and its members to convert or
exchange Units into a number of shares of Common Stock equal to the ▇▇▇▇▇▇
Permitted Ownership Amount, except to the extent that the ▇▇▇▇▇▇ Group or
its members have acquired shares of Common Stock in a ▇▇▇▇▇▇ Open Market
Transaction prior to such conversion or exchange and such acquisitions have
used ownership capacity under the Beneficial Ownership Limit that would
otherwise have been used by such conversions or exchanges;
(iii) the amendment or modification would not limit in any manner or
circumstance the ability of the Lebovitz Group and its members to convert
or exchange Units into a number of shares of Common Stock equal to the
Lebovitz Permitted Ownership Amount, except to the extent that the Lebovitz
Group or its members have acquired shares of Common Stock in a Lebovitz
Open Market Transaction prior to such conversion or exchange and such
acquisitions have used ownership capacity under the Beneficial Ownership
Limit that would otherwise have been used by such conversions or exchanges;
(iv) the amendment or modification (together with any prior amendments
or modifications permitted by this Section 3.2) would not have the effect,
in any circumstance, of restricting or limiting the ability of the ▇▇▇▇▇▇
Group and its members to acquire Beneficial Ownership in a ▇▇▇▇▇▇ Open
Market Transaction (and assuming that immediately prior to such acquisition
the ▇▇▇▇▇▇ Group and its members Beneficially Owned no more than 50 shares
of Common Stock) at least (i) 2,908,000 shares of Common Stock if the
Charter Amendment has not been approved or (ii) 3,559,000 shares of Common
Stock if the Charter Amendment has been approved;
(v) the amendment or modification (together with any prior amendments
or modifications permitted by this Section 3.2) would not have the effect,
in any circumstance, of restricting or limiting the ability of the Lebovitz
Group and its members to acquire Beneficial Ownership in a Lebovitz Open
Market Transaction (and assuming that immediately prior to such acquisition
the Lebovitz Group and its members Beneficially Owned no more than
2,187,000 shares of Common Stock) at least (i) 2,551,000 shares of Common
Stock if the Charter Amendment has not been approved or (ii) 3,236,000
shares of Common Stock if the Charter Amendment has been approved;
(vi) except as described in clause (viii) below, such amendment or
modification (x) would not affect increases in the ▇▇▇▇▇▇ Permitted
Ownership
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Amount and the Lebovitz Permitted Ownership Amount occurring as a result of
an event described in Section 2.2 hereof (relating to the issuance of
Common Stock by the Corporation) and (y) shall provide that, on the
occurrence of an event described in Section 2.2 hereof (relating to an
issuance of Common Stock by the Corporation) the permitted ownership amount
(or equivalent concept) for the Third Holder shall increase by a number of
shares of Common Stock equal to the product of (i) the percentage specified
in the Standard Beneficial Ownership Limit and (ii) the number of shares of
Common Stock issued in the event;
(vii) except as provided in clause (ix) below, following such
amendment or modification, upon an event described in Section 2.4 and
Section 2.5 hereof (other than a repurchase by the Corporation of Common
Stock Beneficially Owned by the Third Holder) the permitted ownership
amount (or equivalent concept) of the Third Holder, the ▇▇▇▇▇▇ Permitted
Ownership Amount and the Lebovitz Permitted Ownership shall each be
decreased by a percentage of the total number of shares repurchased that
equals one-third of the percentage Beneficial Ownership Limit that applies
on an aggregate basis to the Third Holder, the ▇▇▇▇▇▇ Group and the
Lebovitz Group;
(viii) such amendment or modification provides that where, following
an event described in Section 2.4 and 2.5 hereof, other than a repurchase
of Common Stock Beneficially Owned by the Third Holder, (the "Reduction
Event") as to which the ▇▇▇▇▇▇ Permitted Ownership Amount and the Lebovitz
Permitted Ownership Amount were decreased in the manner described in
Section 3.2(b)(vii) above, an event described in Section 2.2 hereof occurs,
the ▇▇▇▇▇▇ Permitted Ownership Amount and the Lebovitz Permitted Ownership
Amount will each be increased by a percentage of the shares of Common Stock
issued by the Corporation that equals the percentage provided pursuant to
Section 3.2(b)(vii), until each of the ▇▇▇▇▇▇ Permitted Ownership Amount
and the Lebovitz Permitted Ownership Amount equals what it was immediately
before the Reduction Event, and subsequently Section 2.2 hereof shall be
applied without regard to this Section 3.2(b)(viii);
(ix) such amendment or modification provides that where, following an
event described in Section 2.2 hereof (the "Increase Event") as to which
the ▇▇▇▇▇▇ Permitted Ownership Amount and Lebovitz Permitted Ownership
Amounts were increased, an event described in Section 2.4 and Section 2.5
occurs (other than a repurchase of shares of Common Stock Beneficially
Owned by the Third Holder), the ▇▇▇▇▇▇ Permitted Ownership Amount and the
Lebovitz Permitted Ownership Amount will each be decreased by a percentage
of the shares of Common Stock repurchased by the Corporation that equals
the percentage specified in Section 2.2, until each of the ▇▇▇▇▇▇ Permitted
Ownership Amount and the Lebovitz Permitted ownership Amount equals what it
was
-9-
immediately before the Increase Event, and subsequently Sections 2.4 and
2.5 hereof shall be applied without regard to this Section 3.2(b)(ix);
(x) such amendment or modification provides that in the event of a
repurchase by the Corporation of Common Stock Beneficially Owned by the
Third Holder, (I) the permitted ownership amount (or equivalent concept) of
the Third Holder shall be reduced by a number of shares of Common Stock
equal to the product of (i) the number of shares repurchased and (ii) the
percentage specified in the aggregate Beneficial Ownership Limit applicable
to the ▇▇▇▇▇▇ Group and its members, the Lebovitz Group and its members and
such Person or group and (II) there shall be no decrease in either the
▇▇▇▇▇▇ Permitted Ownership Amount or the Lebovitz Permitted Ownership
Amount;
(xi) notwithstanding Section 2.6 hereof, such amendment or
modification provides that in the event of a repurchase of Common Stock by
the Corporation from a member of the ▇▇▇▇▇▇ Group, the ▇▇▇▇▇▇ Permitted
Ownership Amount shall be reduced by a number of shares of Common Stock
equal to the product of (i) the number of shares repurchased and (ii) the
percentage specified in the aggregate Beneficial Ownership Limit applicable
to the ▇▇▇▇▇▇ Group and its members, the Lebovitz Group and its members and
the Third Holder;
(xii) notwithstanding Section 2.7 hereof, such amendment or
modification provides that in the event of a repurchase of Common Stock by
the Corporation from a member of the Lebovitz Group, the Lebovitz Permitted
Ownership Amount shall be reduced by a number of shares of Common Stock
equal to the product of (i) the number of shares repurchased and (ii) the
percentage specified in the aggregate Beneficial Ownership Limit applicable
to the ▇▇▇▇▇▇ Group and its members, the Lebovitz Group and its members and
the Third Holder; and
(xiii) the amendment or modification complies with the restrictions
imposed by Section 3.3 hereof.
(c) The references to 2,908,000 and 3,559,000 shares of Common Stock
in Section 3.2(b)(iv) and to 2,551,000 and 3,236,000 shares of Common Stock
in Section 3.2(b)(v) hereof shall be appropriately adjusted to reflect
stock splits, stock dividends, reverse stock splits, share issuances, share
repurchases and similar events occurring after the date hereof.
(d) In connection with an amendment or modification permitted by
Section 3.2 hereof, the percentages referred to in Sections 2.4 and 2.5 may
be amended, provided that in no event may the percentage referred to in
Section 2.5 be less than the percentage referred to in Section 2.4.
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(e) If an amendment or modification that would otherwise be prohibited
by Section 3.2(a) hereof would satisfy all of the requirements of Section
3.2(b) hereof except for requirements relating to the ▇▇▇▇▇▇ Group, the
▇▇▇▇▇▇ Permitted Ownership Amount, or the ability of the ▇▇▇▇▇▇ Group or
any of its members to acquire Beneficial Ownership of Common Stock, either
through conversions or exchanges of Units or otherwise, then such amendment
or modification may be made notwithstanding that it otherwise fails to
satisfy Section 3.2(b) hereof if and only if JRI has provided its prior
written consent to such amendment. If an amendment or modification that
would otherwise be prohibited by Section 3.2(a) hereof would satisfy all of
the requirements of Section 3.2(b) hereof except for requirements relating
to the Lebovitz Group, the Lebovitz Permitted Ownership Amount, or the
ability of the Lebovitz Group or any of its members to acquire Beneficial
Ownership of Common Stock, either through conversions or exchanges of Units
or otherwise, then such amendment or modification may be made
notwithstanding that it otherwise fails to satisfy Section 3.2(b) hereof if
and only if LebFam has provided its prior written consent to such
amendment.
3.3. The Corporation agrees that where modifications to clauses (A) through
(E) of the definition of "Beneficial Ownership Limit" in the Resolution are
permitted by Section 3.2 above, such modifications shall be made only in
accordance with the following restrictions:
(i) the decrease in the percentage referred to in clause (A) shall be
split equally in decreasing the percentages referred to in clauses (B) and
(E);
(ii) the percentage referred to in clause (C) will always be less than
the percentage referred to in clause (D) by an amount equal to the amount
of the Standard Beneficial Ownership Limit;
(iii) the percentage referred to in clause (E) may never be higher
than the percentage referred to in clause (B); and
(iv) the percentage referred to in clause (A) may never be less than
300% of the Standard Beneficial Ownership Limit, the percentages referred
to in clauses (B) and (E) may never be less than 200% of the Standard
Beneficial Ownership Limit, the percentage referred to in clause (C) may
never be less than the Standard Beneficial Ownership Limit and the
percentage referred to in clause (D) may never be less than 200% of the
Standard Beneficial Ownership Limit.
3.4. The Corporation agrees that no modification of the definition of
"Constructive Ownership Limit" adverse to the ▇▇▇▇▇▇ Group or its members or the
Lebovitz Group or its members will be permitted without the consent of ▇▇▇▇▇▇
Realty Investors Limited partnership, a Delaware limited partnership ("JRI") and
LebFam, Inc.,
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a Tennessee corporation ("LebFam"); provided that the Equity Stock ownership
percentage referred in the definition of "Constructive Ownership Limit" may be
modified so that such percentage is the same as or greater than the percentage
referred to in clause (A) of the definition of "Beneficial Ownership Limit" in
the Resolution.
3.5. Notwithstanding anything in the foregoing to the contrary, the
Beneficial Ownership Limit and the Constructive Ownership Limit under the
Certificate of Incorporation or the Resolution (including, without limitation,
clauses (A) through (E) of the definition of "Beneficial Ownership Limit" may be
modified by the Corporation's Board of Directors pursuant to subparagraph
(D)(10) of Article IV of the Certificate of Incorporation with the prior written
consent of JRI, on behalf of the ▇▇▇▇▇▇ Group and its members, and LebFam, on
behalf of the Lebovitz Group and its members.
3.6. The Corporation agrees not to initiate or endorse any proposal to
shareholders to amend, in a manner adverse to the ▇▇▇▇▇▇ Group or any member
thereof or the Lebovitz Group or any member thereof, any of the provisions or
definitions in (i) the amendment to its Certificate of Incorporation approved at
the shareholders meeting contemplated under Section 4.15 of the Master
Contribution Agreement or (ii) the Resolution except with the prior written
consent of JRI, on behalf of the ▇▇▇▇▇▇ Group and its members, and LebFam, on
behalf of the Lebovitz Group and its members.
ARTICLE IV
ADOPTION OF CHARTER AMENDMENT
4.1. Once the Charter Amendment has been approved by the requisite vote of
the Corporation's stockholders and has been adopted and become effective, the
following references in this Agreement will be modified as follows:
(i) references to "15.995%" shall become references to 18.995%;
(ii) references to "31.99%" shall become references to "37.99%";
(iii) references to 4,690,000 shall become references to 6,350,000;
(iv) references to 6,300,000 shall become references to 7,960,000;
(v) references to clauses (A), (B), (C), (D) and (E) of the definition
of "Beneficial Ownership Limit" in the Resolution shall become references
to clauses (B) through (F) of the definition of "Beneficial Ownership
Limit" in the Certificate of Incorporation; and
-12-
(vi) references to the "Constructive Ownership Limit" in the
Resolution shall become references to the "Constructive Ownership Limit" as
set forth in the Certificate of Incorporation.
4.2. For periods prior to the adoption of the Charter Amendment, Sections
2.8 and 2.9 (and not Sections 2.8A and 2.9A) hereof shall be effective.
Following the adoption of the Charter Amendment, Sections 2.8A and 2.9A (and not
Sections 2.8 and 2.9) shall be effective.
4.3. For periods following the adoption of the Charter Amendment, the
▇▇▇▇▇▇ Permitted Ownership Amount and the Lebovitz Permitted Ownership Amount
shall be calculated from September 25, 2000 as though the modifications set
forth in Section 4.1 hereof had always been in effect.
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ARTICLE V
AMENDMENTS
5.1. This Agreement may not be amended or modified other than in writing
executed by JRI on behalf of the ▇▇▇▇▇▇ Group and its members and by LebFam on
behalf of the Lebovitz Group and its members.
ARTICLE VI
ACKNOWLEDGMENT
6.1 The parties hereto acknowledge and agree that Paragraph 5 of the
Resolution shall have the effect of causing shares Beneficially or
Constructively Owned by (i) the Lebovitz Group or its members in excess of the
Lebovitz Permitted Ownership Amount or (ii) the ▇▇▇▇▇▇ Group or its members in
excess of the ▇▇▇▇▇▇ Permitted Ownership Amount to become Shares-in-Trust
pursuant to Article V of the Certificate of Incorporation.
ARTICLE VII
THIRD PARTY BENEFICIARIES
7.1. The members of the ▇▇▇▇▇▇ Group and the Lebovitz Group shall be third
party beneficiaries of the agreements set forth in Article III hereof.
ARTICLE VIII
TERMINATION
8.1. This Agreement will terminate with respect the Lebovitz Group and its
members, or the ▇▇▇▇▇▇ Group and its members, at such time as such group and its
members Beneficially Own and Constructively Own shares of the Company's Equity
Stock (treating all Units held by such group and its members as converted or
exchanged) representing, in the aggregate, less than the Standard Beneficial
Ownership Amount.
ARTICLE IX
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MISCELLANEOUS
9.1. The parties hereto agree that this Agreement shall in all respects be
governed by and construed in accordance with the internal laws of the State of
Delaware
9.2. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which shall constitute one and the
same instrument.
9.3. If any provision hereof is held invalid or not enforceable to is
fullest extent, such provision shall be enforced to the extent permitted by law,
and the validity of the remaining provisions hereof shall not be affected
thereby.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the 31st
day of January, 2001.
CBL & Associates Properties, Inc.
By:
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Name:
Title:
CBL & Associates, Inc.
By:
------------------------------
Name:
Title:
LebFam, Inc.
By:
------------------------------
Name:
Title:
--------------------------------
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ Realty Investors Limited
Partnership
By: JG Realty Investors Corp.,
general partner
By:
------------------------------
Name:
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Title:
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By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, solely as trustee
for the ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Revocable
Living Trust
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By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, solely as trustee
for the ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Marital Trust
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