SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
HANCOCK HOLDING COMPANY
(Exact name of registrant as specified in its charter)
Mississippi 64-0169065
(State of incorporation of organization) (IRS Employer
Identification No.)
One Hancock Plaza
Gulfport, Mississippi 39501
(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant
to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
None
Securities to be registered pursuant
to Section 12(g) of the Act:
Common Share Purchase Rights
(Title of class)
<PAGE>
Item 1. Description of Securities to be Registered
On February 20, 1997, the shareholders of Hancock Holding
Company (the "Company") adopted a Shareholder Rights Plan. The
terms of the Rights Plan are set forth in a Rights Agreement (the
"Rights Agreement") dated February 21, 1997 between the Company and
Hancock Bank, as Rights Agent. The securities being registered
hereunder are the rights to purchase shares of the Company's Common
Stock, par value $2.50 per share ("Common Stock") issued under the
terms of the Rights Plan to the shareholders of record on February
20, 1997, and will attach to shares of Common Stock issued by the
Company during the term of the Rights plan prior to the triggering
of the rights. The following descriptions of the provisions of the
Rights Plan are qualified in their entirety by reference to the
Rights Agreement (including the exhibits thereto).
Distribution of Rights; Initial Exercise Price. On
February 21, 1997, each shareholder of record at the close of
business on February 20, 1997 (the "Record Date") received a
dividend distribution of one Common Stock purchase right (a "Right")
for each outstanding share of Common Stock. Each share of Common
Stock issued by the Company, including shares distributed from
treasury, after February 21, 1997 and prior to the Distribution
Date (as defined below) will automatically have a Right attached to
it. Each Right initially will entitle the registered holder,
subject to the terms of the Rights Agreement, to purchase from the
Company one share of Common Stock at a purchase price per share of
$120, well above the market price of $42.25 on February 20, 1997,
subject to adjustment (the "Purchase Price"). The Purchase Price
is payable in cash or by certified or bank check or bank draft
payable to the order of the Company.
Separation of Rights from Common Stock. Initially, the
Rights will be incorporated in and represented by the certificates
representing the shares of outstanding Common Stock, and no
separate Rights certificates will be distributed. The Rights will
separate from the Common Stock and separate Rights certificates
will be distributed upon the earlier of (i) 10 days following a
public announcement that a person or group of affiliated or
associated persons who are not affiliated with the Company or any
subsidiary (such person or group being an "Acquiring Person") has
acquired, obtained the right to acquire, or otherwise obtained
beneficial ownership of 10% or more of the then outstanding shares
of Company Common Stock ("Stock Acquisition Date"), or (ii) the
close of business on the tenth business day following the
commencement of, or the announcement of an intent to commence, a
tender or exchange offer that would result in a person or group
becoming an Acquiring Person (such person or group upon the
consummation of such offer becoming an "Acquiring Person") or (iii)
the close of business on the tenth business day after a majority of
the members of the Board of Directors who are not officers of the
Company determine, after reasonable inquiry and investigation,
including consultation with such persons as they deem appropriate,
that a person has, alone or together with his affiliates or
associates, become the beneficial owner of 10% or more of the
outstanding shares of Common Stock or voting power of the Company
and is an "Adverse Person", meaning (a) such beneficial ownership
by the Adverse Person is intended to cause the Company to
repurchase the Common Stock or voting power of the Company
beneficially owned by such person or to cause pressure on the
Company to take action or enter into a transaction or series of
transactions intended to provide the Adverse Person with short term
financial gain under circumstances where these directors determine
that the best long term interests of the Company and the
shareholders would not be served by taking such action or entering
into such transaction or series of transactions or (b) such
beneficial ownership is causing or is reasonably likely to cause a
material adverse impact on the business or prospects of the Company
(including, but not limited to, impairment of the Company's
relationships with customers, its ability to maintain its
competitive position, its capital position, its ability to meet the
convenience and needs of the communities it serves, or its business
reputation or ability to deal with governmental agencies) to the
detriment of the shareholders. The earlier to occur of such events
is the "Distribution Date."
Exercisability of Rights. The Rights are not exercisable
until the Distribution Date and will expire at the close of
business on February 21, 2007 (the "Final Expiration Date") unless
earlier redeemed by the Company as described below.
Separated Rights Evidenced by Certificates. Until the
Distribution Date, (i) the Rights will be evidenced by Common Stock
certificates and will be transferred with and only with such Common
Stock certificates, (ii) new Common Stock certificates issued after
the Record Date, including shares distributed from treasury, will
contain a notation incorporating the Rights Agreement by reference,
and (iii) the surrender for transfer of any certificates
representing outstanding Common Stock also will constitute the
transfer of the Rights associated with the Common Stock represented
by such certificate. As soon as practicable after the Distribution
Date, Rights certificates will be mailed to holders of record of
Common Stock as of the close of business on the Distribution Date
and, thereafter, the separate Rights Certificates alone will
represent the Rights.
Triggering Events for Decrease in Exercise Price;
Nullification of Certain Rights. In the event that (i) a person or
group (other than the Company, any of its subsidiaries, or any
employee benefit plan of the Company) becomes an Acquiring Person,
or (ii) the Board has determined the existence of an Adverse Person
(either of such events being a "Triggering Event"), then, in each
such case, each holder of a Right shall have the right to receive,
upon exercise, a share of Company Common Stock (or, in certain
circumstances, cash, property or other securities of the Company)
at an adjusted Purchase Price of 50% of the current market value of
such share. Notwithstanding any of the foregoing, following the
occurrence of one of the foregoing events, all Rights that are, or
(under certain circumstances specified in the Rights Agreement)
were, beneficially owned by an Acquiring Person or an Adverse
Person will be null and void.
Optional Exchange of Rights. At any time after the
occurrence of a Triggering Event, the Board of Directors of the
Company may exchange the Rights (other than Rights owned by such
person which have become void), in whole or in part, at an exchange
ratio of one share per Right (subject to adjustment).
Triggering Events for Purchase of Acquiror's Shares. In
the event that, at any time following the Stock Acquisition Date,
(i) the Company is acquired in a merger or other business
combination transaction and the Company is not the surviving
corporation, (ii) any person or group effects a share exchange or
merger with the Company and all or part of the Company's Common
Stock is converted or exchanged for securities, cash, or property
of any other person or group, or (iii) 50% or more of the Company's
assets or earning power is sold or transferred (any of such events
also being a "Triggering Event"), then, in each such case, each
holder of a Right shall have the right to receive, upon exercise,
the number of shares of common stock of the Acquiring Person
purchasable for the Purchase Price at a price of 50% of the current
market value of such shares.
Anti-dilution Adjustments. The Purchase Price payable,
and the number of shares of Common Stock or other securities or
property issuable, upon exercise of the Rights are subject to
adjustment from time to time to prevent dilution in the event the
Company shall (i) declare a dividend on the Common Stock payable in
shares of Common Stock, (ii) subdivide the outstanding Common
Stock, (iii) combine the outstanding Common Stock into a smaller
number of shares, or (iv) issue any shares of its capital stock a
reclassification of the Common Stock, including any such
reclassification in connection with a share exchange or merger in
which the Company is the continuing or surviving corporation. With
certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments amount to at least 1% of the
Purchase Price. The Company is not required to issue fractional
shares of Common Stock. In lieu thereof, an adjustment in cash may
be made based on the market price of the Common Stock prior to the
date of exercise.
Redemption of Rights. The Rights are redeemable at $.01
per Right (the "Redemption Price"), subject to adjustment, by a
majority of the independent directors of the Board, payable, at the
election of such majority of independent directors, in cash or
shares of Common Stock, at any time prior to the close of business
on the tenth day after a public announcement that a person or group
has acquired, or obtained the right to acquire, beneficial
ownership of 10% or more of the Common Stock, or after a
declaration by the Board of Directors of the existence of an
Adverse Person (the "Right of Redemption"). Immediately upon any
redemption of the Rights, the right to exercise the Rights will
become a right to receive the Redemption Price. Unless earlier
redeemed, the Rights will expire on the Final Expiration Date.
Common Stock purchasable upon exercise of the Rights will not be
redeemable.
No Shareholder Rights Until Exercise; Taxes. Until a
Right is exercised, the holder hereof, as such, will have no rights
as a shareholder of the Company, including, without limitation, the
right to vote or to receive dividends.
The distribution of the Rights should not be taxable to
shareholders or to the Company for federal income tax purposes.
SHAREHOLDERS ARE URGED TO CONSULT THEIR INDIVIDUAL TAX ADVISORS TO
REVIEW THE EFFECT OF EXERCISE OR REDEMPTION OF THE RIGHTS GIVEN
THEIR SPECIFIC CIRCUMSTANCES.
Amendment to Rights Agreement. Any of the provisions of
the Rights Agreement may be supplemented or amended by the Board of
Directors at any time prior to the Distribution Date without the
consent of the shareholders. After the Distribution Date, the
provisions of the Rights Agreement may be supplemented or amended
without the consent of the holders of the Rights in order to (i)
cure any ambiguity, defect, or inconsistency, (ii) make changes
that are consistent with the objectives of the Board in adopting
the Rights Plan (except that from and after such time as any person
becomes an Acquiring Person or a declaration by the Board of
Directors of the existence of an Adverse Person, no such amendment
may adversely affect the interests of holders of Rights), or (iii)
shorten or lengthen any time period under the Rights Agreement,
although no amendment to adjust the time period governing
redemption shall be made at such time as the Rights are not
redeemable.
Anti-takeover Effects. The Rights have certain anti-takeover
effects. The Rights may cause substantial dilution to a
person or group that attempts to acquire the Company on terms not
approved by the Company's Board of Directors. The Rights should not
interfere with any merger or other business combination approved by
the Board of Directors prior to the time that a person or group has
acquired, or obtained the right to acquire, beneficial ownership of
10% or more of the Common Stock, or has been determined to be an
Adverse Person, because until such time the Rights may be redeemed
by the Company at the Redemption Price.
Item 2. Exhibits
1. Rights Agreement, dated February 21, 1997,
between Hancock Holding Company, and Hancock
Bank, as Rights Agent, which includes the form
of Right Certificate as Exhibit B and the
Summary of Rights to Purchase Common Shares as
Exhibit C. Pursuant to the Rights Agreement,
printed Rights Certificates will not be mailed
until as soon as practicable after the earlier
of the tenth day after public announcement
that a person has become an Acquiring Person,
or the tenth day (or such later date as may be
determined by action of the Board of
Directors) after a person commences, or
announces its intention to commence, a tender
offer or exchange offer the consummation of
which would result in a person becoming an
Acquiring Person, or the tenth business day
after the determination of the existence of an
Adverse Person.
SIGNATURES
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the registrant has duly caused this
registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized.
Dated: February 21, 1997
HANCOCK HOLDING COMPANY
By:
/s/ Leo W. Seal, Jr.
President and Chief
Executive Officer
<PAGE>
EXHIBIT LIST
1. Rights Agreement, dated February 21, 1997, between
Hancock Holding Company and Hancock Bank, as Rights
Agent, which includes the form of Right Certificate as
Exhibit B and the Summary of Rights to Purchase Common
Shares as Exhibit C. Pursuant to the Rights Agreement,
printed Rights Certificates will not be mailed until as
soon as practicable after the earlier of the tenth day
after public announcement that a person has become an
Acquiring Person, or the tenth day (or such later date as
may be determined by action of the Board of Directors)
after a person commences, or announces its intention to
commence, a tender offer or exchange offer the
consummation of which would result in a person becoming
an Acquiring Person, or the tenth business day after the
determination of the existence of an Adverse Person.
<PAGE>
EXHIBIT NO. 1 TO FORM 8-A
HANCOCK HOLDING COMPANY
and
HANCOCK BANK
Rights Agent
Rights Agreement
Dated as of February 21, 1997
<PAGE>
TABLE OF CONTENTS
Page
Section 1. Certain Definitions. . . . . . . . . . . . . .1
Section 2. Appointment of Rights Agent . . . . . . . . . .3
Section 3. Issue of Right Certificates. . . . . . . . . .4
Section 4. Form of Right Certificates. . . . . . . . . . .5
Section 5. Countersignature and Registration . . . . . . .5
Section 6. Transfer, Split Up, Combination and
Exchange of Right Certificates;
Mutilated, Destroyed, Lost or Stolen Right
Certificates 6
Section 7. Exercise of Rights; Purchase Price;
Expiration Date of Rights. . . . . . . . . .7
Section 8. Cancellation and Destruction of Right
Certificates 8
Section 9. Reservation and Availability of Capital Stock .8
Section 10. Company Common Stock Record Date . . . . . . .9
Section 11. Adjustment of Purchase Price, Number of
Shares or Number of Rights . . . . . . . . . .9
Section 12. Certificate of Adjusted Purchase Price or
Number of Shares. . . . . . . . . . . . . . .16
Section 13. Consolidation, Merger or Sale or Transfer
of Assets or Earning Power . . . . . . . . . 17
Section 14. Fractional Rights and Fractional Shares . . 18
Section 15. Rights of Action . . . . . . . . . . . . . . 19
Section 16. Agreement of Right Holders . . . . . . . . . 19
Section 17. Right Certificate Holder Not Deemed a
Stockholder. . . . . . . . . . . . . . . . . 19
Section 18. Concerning the Rights Agent. . . . . . . . . 20
Section 19. Merger or Consolidation or Change of Name of
Rights Agent. . . . . . . . . . . . . . . . 20
Section 20. Duties of Rights Agent . . . . . . . . . . . 21
Section 21. Change of Rights Agent . . . . . . . . . . . 23
Section 22. Issuance of New Right Certificates . . . . . 24
Section 23. Redemption . . . . . . . . . . . . . . . . . 24
Section 24. Exchange . . . . . . . . . . . . . . . . . . 25
Section 25. Notice of Certain Events. . . . . . . . . . 26
Section 26. Notices. . . . . . . . . . . . . . . . . . . 27
Section 27. Supplements and Amendments . . . . . . . . 27
Section 28. Successors . . . . . . . . . . . . . . . . . 28
Section 29. Benefits of this Agreement. . . . . . . . . 28
Section 30. Severability . . . . . . . . . . . . . . . . 28
Section 31. Governing Law. . . . . . . . . . . . . . . . 28
Section 32. Counterparts . . . . . . . . . . . . . . . . 28
Section 33. Descriptive Headings . . . . . . . . . . . . 28
Exhibit A - Form of Articles of Amendment
Exhibit B - Form of Right Certificate
Exhibit C - Summary of Shareholder Rights Plan
<PAGE>
RIGHTS AGREEMENT
Agreement, dated as of February 21, 1997, between
Hancock Holding Company, a Louisiana corporation (the "Company"),
and Hancock Bank (the "Rights Agent").
WHEREAS, on February 20, 1997, the shareholders of the Company
approved and adopted a Shareholder Rights Plan, the terms,
conditions and provisions of which are established by the
Agreement; and
WHEREAS, on February 21, 1997 (the "Rights Dividend
Declaration Date") the Board of Directors of the Company authorized
and declared a distribution of one Right, payable on February 20,
1997 for each share of common stock, par value $3.33 per share, of
the Company (the "Company Common Stock") outstanding at the Close
of Business on February 20, 1997 (the "Record Date"), subject to the
execution of this Agreement and to certain other matters, and has
authorized the issuance of one Right for each share of Company
Common Stock issued between the Record Date (whether originally
issued or delivered from the Company's treasury) and the earlier of
the Final Expiration Date and the Distribution Date, as hereinafter
defined in Sections 1(h) and 1(g) respectively, each Right
initially representing the right to purchase, upon the terms and
subject to the conditions hereinafter set forth, one share of
Company Common Stock (the "Right" or collectively, the "Rights");
Accordingly, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
Section 1. Certain Definitions. For purposes of this
Agreement, the following terms have the meanings indicated:
(a) "Acquiring Person" shall mean any Person (as such term
is hereinafter defined) who or which, together with all
Affiliates and Associates (as such terms are hereinafter defined)
of such Person, shall be the Beneficial Owner (as such term is
hereinafter defined) of 10% or more of the Common Shares of the
Company then outstanding, but shall not include the Company,
any Subsidiary (as such term is hereinafter defined) of the
Company, any employee benefit plan of the Company or any
Subsidiary of the Company, or any entity holding Common Shares
for or pursuant to the terms of any such plan.
Notwithstanding the foregoing, no Person shall become an
"Acquiring Person" as the result of an acquisition of Common Shares
by the Company which, by reducing the number of shares
outstanding, increases the proportionate number of shares
beneficially owned by such Person to 10% or more of the Common
Shares of the Company then outstanding; provided, however, that
if a Person shall become the Beneficial Owner of 10% or more of
the Common Shares of the Company then outstanding by reason
of share purchases by the Company and shall, after such share
purchases by the Company, become the Beneficial Owner of any
additional Common Shares of the Company, then such Person
shall be deemed to be an "Acquiring Person". Notwithstanding the
foregoing, if the Board of Directors of the Company determines in
good faith that a Person who would otherwise be an "Acquiring
Person", as defined pursuant to the foregoing provisions of
this paragraph (a), has become such inadvertently, and such
Person divests as promptly as practicable a sufficient number of
Common Shares so that such Person would no longer be an "Acquiring
Person," as defined pursuant to the foregoing provisions of this
paragraph (a), then such Person shall not be deemed to be an
"Acquiring Person" for any purposes of this Agreement.
(b) "Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the
General Rules and Regulations under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), as in effect on the date
of this Agreement.
(c) A Person shall be deemed the "Beneficial Owner" of
and shall be deemed to "beneficially own" any securities:
(i) which such Person or any of such Person's
Affiliates or Associates beneficially owns, directly or indirectly;
(ii) which such Person or any of such Person's
Affiliates or Associates has (A) the right to acquire (whether
such right is exercisable immediately or only after the passage
of time) 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 (other than these Rights),
warrants or options, or otherwise; provided, however, that a
Person shall not be deemed the Beneficial Owner of, or to
beneficially own, 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 or exchange; or (B) the right
to vote pursuant to any agreement, arrangement or understanding;
provided, however, that a Person shall not be deemed the Beneficial
Owner of, or to beneficially own, any security if the agreement,
arrangement or understanding to vote such security (1) arises
solely from a revocable proxy or consent given to such Person
in response to a public proxy or consent solicitation made
pursuant to, and in accordance with, the applicable rules and
regulations promulgated under the Exchange Act and (2) is not also
then reportable on Schedule 13D under the Exchange Act (or any
comparable or successor report); or
(iii) which are beneficially owned, directly or
indirectly, by any other Person with which such Person or any of
such Person's Affiliates or Associates has 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) for the
purpose of acquiring, holding, voting (except to the extent
contemplated by the proviso to Section 1(c)(ii)(B)) or disposing
of any securities of the Company.
Notwithstanding anything in this definition of
Beneficial Ownership to the contrary, the phrase "then
outstanding," when used with reference to a Person's Beneficial
Ownership of securities of the Company, shall mean the number of
such securities then issued and outstanding together with the
number of such securities not then actually issued and
outstanding which such Person would be deemed to own beneficially
hereunder.
(d) "Business Day" shall mean any day other than a Saturday,
a Sunday, or a day on which banking institutions in the State
of Mississippi are authorized or obligated by law or executive
order to close.
(e) "Close of business" on any given date shall mean 5:00
P.M., Gulfport, Mississippi time, on such date; provided,
however, that if such date is not a Business Day it shall mean
5:00 P.M., Gulfport, Mississippi time, on the next succeeding
Business Day.
(f) "Common Shares" when used with reference to the
Company shall mean the shares of common stock, par value
$3.33 per share, of the Company. "Common Shares" when used with
reference to any Person other than the Company shall mean the
capital stock (or equity interest) with the greatest voting
power of such other Person or, if such other Person is a
Subsidiary of another Person, the Person or Persons which
ultimately control such first-mentioned Person.
(g) "Distribution Date" shall have the meaning set forth in
Section 3 hereof.
(h) "Final Expiration Date" shall have the meaning set
forth in Section 7 hereof.
(i) "Person" shall mean any individual, firm, corporation
or other entity, and shall include any successor (by merger or
otherwise) of such entity.
(j) "Redemption Date" shall have the meaning set forth in
Section 7 hereof.
(k) "Shares Acquisition Date" shall mean the first date of
public announcement by the Company or an Acquiring Person that
an Acquiring Person has become such.
(l) "Subsidiary" of any Person shall mean any corporation or
other entity of which a majority of the voting power of the
voting equity securities or equity interest is owned, directly or
indirectly, by such Person.
Section 2. Appointment of Rights Agent. The Company hereby
appoints the Rights Agent to act as agent for the Company and the
holders of the Rights (who, in accordance with Section 3 hereof,
shall prior to the Distribution Date also be the holders of the
Common Shares) in accordance with the terms and conditions
hereof, and the Rights Agent hereby accepts such appointment.
The Company may from time to time appoint such co-Rights
Agents as it may deem necessary or desirable.
Section 3. Issue of Right Certificates.
(a) Until the earlier of (i) the tenth day after the Shares
Acquisition Date or (ii) the tenth business day (or such later
date as may be determined by action of the Board of Directors
prior to such time as any Person becomes an Acquiring Person)
after the date of the commencement by any Person (other than the
Company, any Subsidiary of the Company, any employee benefit
plan of the Company or of any Subsidiary of the Company or any
entity holding Common Shares for or pursuant to the terms of any
such plan) of, or of the first public announcement of the
intention of any Person (other than the Company, any Subsidiary
of the Company, any employee benefit plan of the Company or of
any Subsidiary of the Company or any entity holding Common
Shares for or pursuant to the terms of any such plan) to
commence, a tender or exchange offer the consummation of which
would result in any Person becoming the Beneficial Owner of
Common Shares aggregating 10% or more of the then outstanding
Common Shares (including any such date which is after the date of
this Agreement and prior to the issuance of the Rights; the
earlier of such dates being herein referred to as the "Distribution
Date"), (x) the Rights will be evidenced (subject to the
provisions of Section 3(b) hereof) by the certificates for Common
Shares registered in the names of the holders thereof (which
certificates shall also be deemed to be Right Certificates) and
not by separate Right Certificates, and (y) the right to
receive Right Certificates will be transferable only in connection
with the transfer of Common Shares. As soon as practicable after
the Distribution Date, the Company will prepare and execute,
the Rights Agent will countersign, and the Company will send or
cause to be sent (and the Rights Agent will, if requested,
send) by first-class, insured, postage-prepaid mail, to each
record holder of Common Shares as of the close of business on the
Distribution Date, at the address of such holder shown on the
records of the Company, a Right Certificate, in substantially
the form of Exhibit B hereto (a "Right Certificate"), evidencing
one Right for each Common Share so held. As of the Distribution
Date, the Rights will be evidenced solely by such Right
Certificates.
(b) On the Record Date, or as soon as practicable
thereafter, the Company will send a copy of a Summary of
Rights, in substantially the form of Exhibit C hereto (the "Summary
of Rights"), by first-class, postage-prepaid mail, to each record
holder of Common Shares as of the close of business on the Record
Date, at the address of such holder shown on the records of the
Company. With respect to certificates for Common Shares
outstanding as of the Record Date, until the Distribution Date,
the Rights will be evidenced by such certificates registered in the
names of the holders thereof together with a copy of the Summary
of Rights attached thereto. Until the Distribution Date (or the
earlier of the Redemption Date or the Final Expiration Date), the
surrender for transfer of any certificate for Common Shares
outstanding on the Record Date, with or without a copy of the
Summary of Rights attached thereto, shall also constitute the
transfer of the Rights associated with the Common Shares
represented thereby.
(c) Certificates for Common Shares which become outstanding
(including, without limitation, reacquired Common Shares referred
to in the last sentence of this paragraph) (c) after the Record
Date but prior to the earliest of the Distribution Date, the
Redemption Date or the Final Expiration Date shall have impressed
on, printed on, written on or otherwise affixed to them the
following legend:
This certificate also evidences and entitles the holder
hereof to certain rights as set forth in a Rights
Agreement between Hancock Holding Company and Hancock Bank,
dated as of February 21, 1997 (the "Rights Agreement"), the
terms of which are hereby incorporated herein by reference
and a copy of which is on file at the principal executive
offices of Hancock Holding Company. Under certain
circumstances, as set forth in the Rights Agreement, such
Rights will be evidenced by separate certificates and will no
longer be evidenced by this certificate. Hancock Holding
Company will mail to the holder of this certificate a copy of
the Rights Agreement without charge after receipt of a
written request therefor. As described in the Rights
Agreement, Rights issued to any Person who becomes an
Acquiring Person (as defined in the Rights Agreement) shall
become null and void.
With respect to such certificates containing the foregoing
legend, until the Distribution Date, the Rights associated with
the Common Shares represented by such certificates shall be
evidenced by such certificates alone, and the surrender for
transfer of any such certificate shall also constitute the
transfer of the Rights associated with the Common Shares
represented thereby. In the event that the Company purchases or
acquires any Common Shares after the Record Date but prior to the
Distribution Date, any Rights associated with such Common Shares
shall be deemed canceled and retired so that the Company shall
not be entitled to exercise any Rights associated with the Common
Shares which are no longer outstanding.
Section 4. Form of Right Certificates. The Right Certificates
(and the forms of election to purchase shares of Common Stock and
of assignment to be printed on the reverse thereof) shall be
substantially the same as Exhibit B hereto and may have such marks
of identification or designation and such legends, summaries or
endorsements printed thereon as the Company may deem appropriate
and as are not inconsistent with the provisions of this Agreement,
or as may be required to comply with any applicable law or with
any rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange on which the Rights may from
time to time be listed, or to conform to usage. Subject to
the provisions of Section 22 hereof, the Right Certificates
shall entitle the holders thereof to purchase such number of
shares of Company Common Stock as shall be set forth therein at
the price set forth therein (the "Purchase Price"), but the number
of shares of Company Common Stock and the Purchase Price shall be
subject to adjustment as provided herein.
Section 5. Countersignature and Registration. The Right
Certificates shall be executed on behalf of the Company by its
Chairman of the Board, its Chief Executive Officer, its
President, any of its Vice Presidents, or its Treasurer, either
manually or by facsimile signature, shall have affixed thereto the
Company's seal or a facsimile thereof, and shall be attested
by the Secretary or an Assistant Secretary of the Company,
either manually or by facsimile signature. The Right Certificates
shall be manually countersigned by the Rights Agent and shall not
be valid for any purpose unless countersigned. In case any
officer of the Company who shall have signed any of the
Right Certificates shall cease to be such officer of the
Company before countersignature by the Rights Agent and
issuance and delivery by the Company, such Right Certificates,
nevertheless, may be countersigned by the Rights Agent and issued
and delivered by the Company with the same force and effect as
though the person who signed such Right Certificates had not
ceased to be such officer of the Company; and any Right Certificate
may be signed on behalf of the Company by any person who, at
the actual date of the execution of such Right Certificate,
shall be a proper officer of the Company to sign such Right
Certificate, although at the date of the execution of this Rights
Agreement any such person was not such an officer.
Following the Distribution Date, the Rights Agent will keep or
cause to be kept, at its principal office, books for registration
and transfer of the Right Certificates issued hereunder. Such
books shall show the names and addresses of the respective
holders of the Right Certificates, the number of Rights
evidenced on its face by each of the Right Certificates and the
date of each of the Right Certificates.
Section 6. Transfer, Split Up, Combination and Exchange
of Right Certificates; Mutilated, Destroyed, Lost or Stolen Right
Certificates. Subject to the provisions of Section 14 hereof, at
any time after the close of business on the Distribution Date,
and at or prior to the close of business on the earlier of the
Redemption Date or the Final Expiration Date, any Right
Certificate or Right Certificates (other than Right Certificates
representing Rights that have become void pursuant to Section
11(a)(ii) hereof or that have been exchanged pursuant to
Section 24 hereof) may be transferred, split up, combined or
exchanged for another Right Certificate or Right Certificates,
entitling the registered holder to purchase a like number shares
of Common Stock as the Right Certificate or Right Certificates
surrendered then entitled such holder to purchase. Any
registered holder desiring to transfer, split up, combine or
exchange any Right Certificate or Right Certificates shall
make such request in writing delivered to the Rights Agent, and
shall surrender the Right Certificate or Right Certificates
to be transferred, split up, combined or exchanged at the
principal office of the Rights Agent. Thereupon the Rights Agent
shall countersign and deliver to the person entitled thereto a
Right Certificate or Right Certificates, as the case may be, as
so requested. The Company may require payment of a sum sufficient
to cover any tax or governmental charge that may be imposed in
connection with any transfer, split up, combination or exchange of
Right Certificates.
Upon receipt by the Company and the Rights Agent of evidence
reasonably satisfactory to them of the loss, theft, destruction or
mutilation of a Right Certificate, and, in case of loss, theft or
destruction, of indemnity or security reasonably satisfactory to
them, and, at the Company's request, reimbursement to the
Company and the Rights Agent of all reasonable expenses
incidental thereto, and upon surrender to the Rights Agent and
cancellation of the Right Certificate if mutilated, the Company
will make and deliver a new Right Certificate of like tenor to
the Rights Agent for delivery to the registered holder in lieu
of the Right Certificate so lost, stolen, destroyed or mutilated.
Section 7. Exercise of Rights; Purchase Price; Expiration
Date of Rights.
(a) The registered holder of any Right Certificate may
exercise the Rights evidenced thereby (except as otherwise
provided herein) in whole or in part at any time after the
Distribution Date upon surrender of the Right Certificate,
with the form of election to purchase on the reverse side thereof
duly executed, to the Rights Agent at the principal office of the
Rights Agent, together with payment of the Purchase Price for
each share of Company Common Stock as to which the Rights are
exercised, at or prior to the earliest of (i) the close of
business on February 21, 2007 (the "Final Expiration Date"), (ii)
the time at which the Rights are redeemed as provided in Section 23
hereof (the "Redemption Date"), or (iii) the time at which
such Rights are exchanged as provided in Section 24 hereof.
(b) The Purchase Price for each one share of Company
Common Stock purchasable pursuant to the exercise of a Right shall
initially be $120.00, and shall be subject to adjustment from time
to time as provided in Sections 11 and 13 hereof and shall be
payable in lawful money of the United States of America in
accordance with paragraph (c) below.
(c) Upon receipt of a Right Certificate representing
exercisable Rights, with the form of election to purchase
duly executed, accompanied by payment of the Purchase Price for
the shares to be purchased and an amount equal to any applicable
transfer tax required to be paid by the holder of such Right
Certificate in accordance with Section 9 hereof by certified
check, cashier's check or money order payable to the order of the
Company, the Rights Agent shall thereupon promptly (i) (A)
requisition from any transfer agent of the share of Company Common
Stock certificates for the number of shares of Company Common Stock
to be purchased and the Company hereby irrevocably authorizes its
transfer agent to comply with all such requests, or (B)
requisition from the depositary agent depositary receipts
representing such number of shares of Company Common Stock as are
to be purchased (in which case certificates for the share of
Company Common Stock represented by such receipts shall be
deposited by the transfer agent with the depositary agent) and
the Company hereby directs the depositary agent to comply with
such request, (ii) when appropriate, requisition from the Company
the amount of cash to be paid in lieu of issuance of
fractional shares in accordance with Section 14 hereof, (iii)
after receipt of such certificates or depositary receipts, cause
the same to be delivered to or upon the order of the registered
holder of such Right Certificate, registered in such name or names
as may be designated by such holder and (iv) when appropriate,
after receipt, deliver such cash to or upon the order of the
registered holder of such Right Certificate.
(d) In case the registered holder of any Right
Certificate shall exercise less than all the Rights
evidenced thereby, a new Right Certificate evidencing Rights
equivalent to the Rights remaining unexercised shall be issued by
the Rights Agent to the registered holder of such Right
Certificate or to his duly authorized assigns, subject to the
provisions of Section 14 hereof.
Section 8. Cancellation and Destruction of Right
Certificates. All Right Certificates surrendered for the purpose
of exercise, transfer, split up, combination or exchange shall,
if surrendered to the Company or to any of its agents, be
delivered to the Rights Agent for cancellation or in cancelled
form, or, if surrendered to the Rights Agent, shall be cancelled
by it, and no Right Certificates shall be issued in lieu thereof
except as expressly permitted by any of the provisions of this
Rights Agreement. The Company shall deliver to the Rights Agent
for cancellation and retirement, and the Rights Agent shall so
cancel and retire, any other Right Certificate purchased or
acquired by the Company otherwise than upon the exercise thereof.
The Rights Agent shall deliver all cancelled Right Certificates
to the Company, or shall, at the written request of the Company,
destroy such cancelled Right Certificates, and in such case shall
deliver a certificate of destruction thereof to the Company.
Section 9. Reservation and Availability of Capital Stock.
(a) The Company shall at all times prior to the Expiration Date
cause to be reserved and kept available out of its authorized and
unissued shares of Company Common Stock, the number of shares of
Company Common Stock that, as provided in this Agreement,
including, without limitation, Section 11(a)(iii) hereof, will be
sufficient to permit the exercise in full of all outstanding
Rights.
(b) The Company shall use its best efforts (i) as soon as
practicable following the occurrence of a Section 11(a) (ii) Event
and a determination by the Company in accordance with Section 11(a)
(iii) hereof of the consideration to be delivered by the Company
upon exercise of the Rights or, if so required by law, as soon as
practicable following the Distribution Date (such date being the
"registration Date"), to file a registration statement on an
appropriate form under the Securities Act of 1933, as amended (the
"Securities Act'"), with respect to the securities that may be
acquired upon exercise of the Rights (the "Registration Statement),
(ii) to cause the Registration Statement to become effective as
soon as practicable after such filing, (iii) to cause the
Registration Statement to continue to be effective (and to include
a prospectus complying with the requirements of the Securities Act)
until the earlier of (A) the date as of which the Rights are no
longer exercisable for the securities covered by the Registration
Statement, and (B) the Expiration Date, and (iv) to take as soon as
practicable following the Registration Date such action as may be
required to ensure that any acquisition of securities upon exercise
of the Rights complies with any applicable state securities or
"blue sky" laws.
(c) The Company shall take such action as may be necessary to
ensure that all shares of Company Common Stock (and, following the
occurrence of a Triggering Event, any other securities that may be
delivered upon exercise of Rights) shall be, at the time of
delivery of the certificates or depositary receipts for such
securities, duly and validly authorized and issued and fully paid
and nonassessable.
Section 10. Company Common Stock Record Date. Each person in
whose name any certificate for shares of Company Common Stock (or,
following the occurrence of a Triggering Event, other securities)
is issued upon the exercise of Rights shall for all purposes be
deemed to have become the holder of record of the shares of Company
Common Stock (or, following the occurrence of a Triggering Event,
other securities) represented thereby on, and such certificate
shall be dated, the date upon which the Rights Certificate
evidencing such Rights was duly surrendered and payment of the
Purchase Price (and any applicable transfer taxes) was made;
provided, however, that if the date of such surrender and payment
is a date upon which the Company Common Stock (or, following the
occurrence of a Triggering Event, other securities) transfer books
of the Company are closed, such person shall be deemed to have
become the record holder fo such securities on, and such
certificate shall be dated, the next succeeding Business Day on
which the Company Common Stock (or, following the occurrence of a
Triggering Event, other securities) transfer books of the Company
are open. Prior to the exercise of the Rights evidenced thereby,
the holder of a Rights Certificate shall not be entitled to any
rights of a shareholder of the Company with respect to securities
for which the Rights shall be exercisable, including, without
limitation, the right to vote, to receive dividends or other
distributions or to exercise any preemptive rights, and shall not
be entitled to receive any notice of any proceedings of the
Company, except as provided herein.
Section 11. Adjustment of Purchase Price, Number of Shares
or Number of Rights. The Purchase Price, the number of Shares
covered by each Right and the number of Rights outstanding are
subject to adjustment from time to time as provided in this Section
11.
(a) (i) In the event the Company shall at any time after
the date of this Agreement (A) declare a dividend on the Company
Common Stock payable in Company Common Stock, (B) subdivide the
outstanding Company Common Stock, (C) combine the outstanding
Company Common Stock into a smaller number of Company Common Stock
or, (D) issue any shares of its capital stock in a reclassification
of the Company Common Stock (including any such reclassification
in connection with a consolidation or merger in which the Company
is the continuing or surviving corporation), except as
otherwise provided in this Section 11(a), the Purchase Price in
effect at the time of the record date for such dividend or of the
effective date of such subdivision, combination or
reclassification, and the number and kind of shares of capital
stock issuable on such date, shall be proportionately adjusted so
that the holder of any Right exercised after such time shall be
entitled to receive the aggregate number and kind of shares of
capital stock which, if such Right had been exercised immediately
prior to such date and at a time when the shares of Common Stock
transfer books of the Company were open, he would have owned upon
such exercise and been entitled to receive by virtue of such
dividend, subdivision, combination or reclassification;
provided, however, that in no event shall the consideration to
be paid upon the exercise of one Right be less than the aggregate
par value of the shares of capital stock of the Company
issuable upon exercise of one Right.
(ii) In the event:
(A) any Person shall at any time after the Rights
Dividend Declaration Date become an Acquiring Person, unless
the event causing such person to become an Acquiring Person is
a transaction set forth in Section 13(a) hereof; or
(B) a majority of the members of the Board of Directors
who are not officers of the Company shall declare any Person
to be an Adverse Person, upon a determination that such
Person, alone or together with its Affiliates and Associates,
has, at any time after the Rights Dividend Declaration Date,
become the Beneficial Owner of (I) at least 10% of the shares
of Common Stock then outstanding or (II) Voting Securities
representing at least 10% of the Total Voting Power, and a
determination, after reasonable inquiry and investigation,
including consultation with such persons as such members of
the Board of Directors shall deem appropriate, that (a) such
Beneficial Ownership by such Person is intended to cause the
Company to repurchase the Common Stock and/or Voting
Securities beneficially owned by such Person or to cause
pressure on the Company to take action or enter into a
transaction or series of transactions intended to provide such
Person with short-term financial gain under circumstances
where the Board of Directors determine that the best long-term
interests of the Company and its shareholders would not be
served by taking such action or entering into such transaction
or series of transactions at that time or (b) such beneficial
Ownership is causing or reasonably likely to cause a material
adverse impact on the business or prospects of the Company
(including, but not limited to, impairment of the Company's
relationships with customers, impairment of the Company's
ability to maintain its competitive position, impairment of
the Company's capital position, impairment of the Company's
ability to meet the convenience and needs of the communities
it serves, or impairment of the Company's business reputation
or ability to deal with governmental agencies) to the
detriment of the Company's shareholders; then, immediately
upon the date of the occurrence of an event described above (a
"Section 11(a) (ii) Event"), proper provision shall be made so
that each holder of a Right (except as provided below and in
Section 7(e) hereof) shall thereafter have the right to
receive, upon exercise thereof, the then number of shares of
Company Common Stock for which a Right was exercisable
immediately prior to the first occurrence of a Section 11(a)
(ii) Event (such number of shares, the Adjustment Shares") at
an adjusted Purchase Price (the "Section 11 Price") equal to
the product obtained by multiplying the Adjustment shares by
the greater of (x) 50% of the then current market price
(determined pursuant to Section 11(d) hereof) per share of
Company Common Stock on the date of such first occurrence and
(y) the par value per share of the Company Common Stock; and
following the first occurrence of a Section 11(a)(ii) Event,
the Section 11 Price shall be the "Purchase Price" for all
purposes of this Agreement (other than Section 13 hereof).
(iii) In the event that the number of shares of
Company Common Stock which are authorized by the Company's Articles
of Incorporation but not outstanding or reserved for issuance for
purposes other than upon exercise of the Rights are not sufficient
to permit the exercise in full of the Rights in accordance with the
foregoing subparagraph (ii) of this Section 11(a), the Company, by
a vote of the Board of Directors, with the concurrence of a
majority of the Independent Directors, shall: ( A) determine the
excess of (1) the value of the Adjustment Shares issuable upon the
exercise of a Right (the "Current Value") over (2) the Purchase
Price (such excess being the "Spread"), and (B) with respect to each
Right, make adequate provision to substitute for the Adjustment
Shares, upon payment of the applicable Purchase Price, (1) cash,
(2) a reduction in the Purchase Price, (3) Company Common Stock or
other equity securities of the Company (including, without
limitation, shares, or units of shares, of preferred stock (such
shares of preferred stock being "common stock equivalents")), (4)
debt securities of the Company, (5) other assets, or (6) any
combination of the foregoing, having an aggregate value equal to
the Current Value, were such aggregate value has been determined by
board of Directors, with the concurrence of a majority of the
Independent Directors; provided, however, that if the Company shall
not have made adequate provision to deliver such value pursuant to
clause (B) above within sixty (60) days following the later of (x)
the first occurrence of a Section 11(a) (ii) Event and (y) the date
on which the Company's right of redemption pursuant to Section 23(a)
expires (the later of (x) and (y) being referred to herein as the
"Section 11(a) (ii) Trigger Date"), then the Company shall be
obligated to deliver upon the surrender for exercise of a Right and
without requiring payment of the Purchase Price, shares of Company
Common Stock (to the extent available) and then, if necessary,
cash, which shares and/or cash shall have an aggregate value equal
to the Spread. To the extent that the Company determines that some
action need be taken pursuant to the first sentence of this Section
11(a) (iii), the Company shall provide, subject to Section 7(e)
hereof, that such action shall apply uniformly to all outstanding
Rights. For purposes of this Section 11(a) (iii), the value of the
Company Common Stock shall be the current market price (as
determined pursuant to Section 11(d) hereof) per share of Company
Common Stock on the Section 11(a) (ii) Trigger Date and the value
of any "common stock equivalent" shall be deemed to have the same
value as the Company Common Stock on such date.
(b) In case the Company shall fix a record date for
the issuance of rights, options or warrants to all holders of
Company Common Stock entitling them (for a period expiring within
45 calendar days after such record date) to subscribe for or
purchase Company Common Stock (or shares having the same rights,
privileges and preferences as the Company Common Stock ("equivalent
common stock")) or securities convertible into Company Common Stock
or equivalent common stock at a price per share of Company Common
Stock or equivalent common stock (or having a conversion price per
share, if a security convertible into Company Common Stock or
equivalent common stock) less than the then current per share
market price of the Company Common Stock (as defined in Section
11(d)) on such record date, the Purchase Price to be in effect
after such record date shall be determined by multiplying the
Purchase Price in effect immediately prior to such record date by
a fraction, the numerator of which shall be the number of shares of
Company Common Stock outstanding on such record date plus the
number of shares of Company Common Stock which the aggregate
offering price of the total number of shares of Company Common
Stock and/or equivalent common stock so to be offered (and/or the
aggregate initial conversion price of the convertible securities
so to be offered) would purchase at such current market price and
the denominator of which shall be the number of shares of Company
Common Stock outstanding on such record date plus the number of
additional shares of Company Common Stock and/or equivalent common
stock to be offered for subscription or purchase (or into which the
convertible securities so to be offered are initially convertible);
provided, however, that in no event shall the consideration to be
paid upon the exercise of one Right be less than the aggregate par
value of the shares of capital stock of the Company issuable upon
exercise of one Right. In case such subscription price may be paid
in a consideration part or all of which shall be in a form other
than cash, the value of such consideration shall be as determined
in good faith by the Board of Directors of the Company, whose
determination shall be described in a statement filed with the
Rights Agent. Shares of Company Common Stock owned by or held for
the account of the Company shall not be deemed outstanding for
the purpose of any such computation. Such adjustment shall be
made successively whenever such a record date is fixed; and in the
event that such rights, options or warrants are not so issued, the
Purchase Price shall be adjusted to be the Purchase Price which
would then be in effect if such record date had not been fixed.
(c) In case the Company shall fix a record date for the
making of a distribution to all holders of the shares of Company
Common Stock (including any such distribution made in connection
with a consolidation or merger in which the Company is the
continuing or surviving corporation) of evidences of indebtedness
or assets (other than a regular quarterly cash dividend or a
dividend payable in shares of Company Common Stock) or subscription
rights or warrants (excluding those referred to in Section 11(b)
hereof), the Purchase Price to be in effect after such record
date shall be determined by multiplying the Purchase Price in
effect immediately prior to such record date by a fraction, the
numerator of which shall be the then current per share market
price of the shares of Company Common Stock on such record date,
less the fair market value (as determined in good faith by the
Board of Directors of the Company, whose determination shall be
described in a statement filed with the Rights Agent) of the
portion of the assets or evidences of indebtedness so to be
distributed or of such subscription rights or warrants applicable
to a share of Company Common Stock and the denominator of which
shall be such current per share market price of the Company Common
Stock. Such adjustments shall be made successively whenever
such a record date is fixed; and in the event that such
distribution is not so made, the Purchase Price shall again be
adjusted to be the Purchase Price which would then be in effect
if such record date had not been fixed.
(d) For the purpose of any computation hereunder, other than
computations made pursuant to Section 11(a)(iii) hereof, the
"current market price" per share of Company Common Stock on any date
shall be deemed to be the average of the daily closing prices per
share of such Company Common Stock for the thirty consecutive
Trading Days (as such term is hereinafter defined) immediately
prior to such date and for purposes of computations made pursuant
to Section 11(a)(iii) hereof, the "Current market price" per share
of Company Common Stock on any date shall be deemed to be the
average of the daily closing prices per share of such Company
Common Stock for the ten (10) consecutive Trading Days immediately
following such date; provided, however, if prior to the expiration
of such requisite Trading Day period the issuer announces either
(A) a dividend or distribution on sch Company Common Stock payable
in such Company Common Stock or securities convertible into such
Company Common Stock (other than the Rights), or (B) any
subdivision, combination or reclassification of such Company Common
Stock then, following the ex-dividend data for such dividend or the
record date for such subdivision, as the case maybe, the "current
market price" shall be properly adjusted to take into account such
event. The closing price for each day shall be, if the shares of
Company Common Stock are listed and admitted to trading on a
national securities exchange, as reported in the principal
consolidated transaction reporting system with respect to
securities listed on the principal national securities exchange on
which such shares are listed or admitted to trading, or, if the
shares of Company Common Stock are designated for inclusion in the
National Association of Securities Dealers, Inc. Automated
Quotation ("NASDAQ") National Market System ("NMS"), as reported int
he NMS, or, if such shares of Company Common Stock are not listed
or admitted to trading on any national securities exchange, the
last quoted sales price or, if not so quoted, the average of the
high bid and low asked prices in the over-the-counter market, as
reported by the NASDAQ System or such other system then in use, or,
if on any such date such shares are not quoted by any such
organization, the average of the closing bid and asked prices as
furnished by a professional market maker making a market in the
shares of Company Common Stock selected by the Board of Directors,
with the concurrence of a majority of the Independent Directors.
If on any such date no market maker is making a market in such
shares, the fair value of such shares on such date as determined in
good faith by the Board of Directors, with the concurrence of a
majority of the Independent Directors, shall be used. If the
shares of Company Common Stock are not publicly held or not so
listed or traded, "current market price" per share shall mean the
fair value per share as determined in good faith by the Board of
Directors, with the concurrence of a majority of the Independent
Directors, whose determination shall be described in a statement
filed with the Rights Agent and shall be conclusive for all
purposes. The term "Trading Day" shall mean a Business Day or, if
such shares are listed or admitted to trading on any national
securities exchange, a day on which the principal national
securities exchange on which such shares are listed or admitted to
trading is open for the transaction of business.
(e) No adjustment in the Purchase Price shall be
required unless such adjustment would require an increase or
decrease of at least 1% in the Purchase Price; provided, however,
that any adjustments which by reason of this Section 11(e) are
not required to be made shall be carried forward and taken into
account in any subsequent adjustment. All calculations under
this Section 11 shall be made to the nearest cent or to the nearest
share of Company Common Stock as the case may be. Notwithstanding
the first sentence of this Section 11(e), any adjustment
required by this Section 11 shall be made no later than the
earlier of (i) three years from the date of the transaction
which requires such adjustment or (ii) the date of the
expiration of the right to exercise any Rights.
(f) If as a result of an adjustment made pursuant to
Section 11(a) hereof, the holder of any Right thereafter exercised
shall become entitled to receive any shares of capital stock of
the Company other than Company Common Stock, thereafter the
number of such other shares so receivable upon exercise of any
Right shall be subject to adjustment from time to time in a manner
and on terms as nearly equivalent as practicable to the provisions
with respect to the Company Common Stock contained in Section
11(a) through (c), inclusive, and the provisions of Sections 7,
9, 10 and 13 with respect to the Company Common Stock shall apply
on like terms to any such other shares.
(g) All Rights originally issued by the Company subsequent
to any adjustment made to the Purchase Price hereunder shall
evidence the right to purchase, at the adjusted Purchase Price,
the number of shares of Company Common Stock purchasable from time
to time hereunder upon exercise of the Rights, all subject to
further adjustment as provided herein.
(h) Unless the Company shall have exercised its election
as provided in Section 11(i), upon each adjustment of the
Purchase Price as a result of the calculations made in
Sections 11(b) and (c), each Right outstanding immediately
prior to the making of such adjustment shall thereafter evidence
the right to purchase, at the adjusted Purchase Price, that
number of shares of Company Common Stock (calculated to the
nearest 1/10,000 of a share) obtained by (i) multiplying (x) the
number of shares covered by a Right immediately prior to this
adjustment by (y) the Purchase Price in effect immediately
prior to such adjustment of the Purchase Price and (ii)
dividing the product so obtained by the Purchase Price in effect
immediately after such adjustment of the Purchase Price.
(i) The Company may elect on or after the date of any
adjustment of the Purchase Price to adjust the number of Rights, in
substitution for any adjustment in the number of a share of
Company Common Stock purchasable upon the exercise of a Right.
Each of the Rights outstanding after such adjustment of the
number of Rights shall be exercisable for the number of shares of
Company Common Stock for which a Right was exercisable
immediately prior to such adjustment. Each Right held of record
prior to such adjustment of the number of Rights shall
become that number of Rights (calculated to the nearest 1/100)
obtained by dividing the Purchase Price in effect immediately
prior to adjustment of the Purchase Price by the Purchase Price
in effect immediately after adjustment of the Purchase Price. The
Company shall make a public announcement of its election to adjust
the number of Rights, indicating the record date for the
adjustment, and, if known at the time, the amount of the
adjustment to be made. This record date may be the date on which
the Purchase Price is adjusted or any day thereafter, but, if the
Right Certificates have been issued, shall be at least 10 days
later than the date of the public announcement. If Right
Certificates have been issued, upon each adjustment of the
number of Rights pursuant to this Section 11(i), the Company
shall, as promptly as practicable, cause to be distributed to
holders of record of Right Certificates on such record date Right
Certificates evidencing, subject to Section 14 hereof, the
additional Rights to which such holders shall be entitled as a
result of such adjustment, or, at the option of the Company, shall
cause to be distributed to such holders of record in
substitution and replacement for the Right Certificates held by
such holders prior to the date of adjustment, and upon surrender
thereof, if required by the Company, new Right Certificates
evidencing all the Rights to which such holders shall be entitled
after such adjustment. Right Certificates so to be distributed
shall be issued, executed and countersigned in the manner
provided for herein and shall be registered in the names of the
holders of record of Right Certificates on the record date
specified in the public announcement.
(j) Irrespective of any adjustment or change in the Purchase
Price or the number of shares of Company Common Stock issuable upon
the exercise of the Rights, the Right Certificates theretofore and
thereafter issued may continue to express the Purchase Price and
the number of shares of Company Common Stock which were expressed
in the initial Right Certificates issued hereunder.
(k) Before taking any action that would cause an
adjustment reducing the Purchase Price below the then par value of
the shares of Company Common Stock issuable upon exercise of the
Rights, the Company shall take any corporate action which may,
in the opinion of its counsel, be necessary in order that the
Company may validly and legally issue fully paid and nonassessable
shares of Company Common Stock at such adjusted Purchase Price.
(l) In any case in which this Section 11 shall require that an
adjustment in the Purchase Price be made effective as of a
record date for a specified event, the Company may elect to defer
until the occurrence of such event the issuing to the holder of
any Right exercised after such record date of the shares of Company
Common Stock and shares of other capital stock or securities of
the Company, if any, issuable upon such exercise over and above
the shares of Company Common Stock and other capital stock or
securities of the Company, if any, issuable upon such exercise on
the basis of the Purchase Price in effect prior to such adjustment;
provided, however, that the Company shall deliver to such
holder a due bill or other appropriate instrument evidencing such
holder's right to receive such additional shares upon the
occurrence of the event requiring such adjustment.
(m) Anything in this Section 11 to the contrary
notwithstanding, the Company shall be entitled to make such
reductions in the Purchase Price, in addition to those
adjustments expressly required by this Section 11, as and to the
extent that it in its sole discretion shall determine to be
advisable in order that any consolidation or subdivision of the
shares of Company Common Stock, issuance wholly for cash of any
shares of Company Common Stock at less than the current market
price, issuance wholly for cash of shares of Company Common Stock
or securities which by their terms are convertible into or
exchangeable for shares of Company Common Stock, dividends on
shares of Company Common Stock payable in shares of Company Common
Stock or issuance of rights, options or warrants referred to
hereinabove in Section 11(b), hereafter made by the Company to
holders of its shares of Company Common Stock shall not be taxable
to such stockholders.
(n) The Company shall not, at any time after the Distribution
Date, (i) effect a share exchange with any other Person (other than
a Subsidiary of the Company in a transaction which complies with
Section 11(o) hereof), (ii) merge with or into any other Person
(other than a Subsidiary of the Company in a transaction which
complies with Section 11(o) hereof), or (iii) sell or transfer (or
permit any Subsidiary to sell or transfer), in one transaction, or
a series of transactions, assets or earning power aggregating more
than 50% of the assets or earning power of the Company and its
Subsidiaries (taken as a whole) to any other Person or Persons
(other than the Company and/or any of its Subsidiaries in one or
more transactions each of which complies with Section 11(o)
hereof), if (x) at the time of or immediately after such share
exchange, merger or sale there are any rights, warrants or other
instruments or securities outstanding or agreements in effect which
would substantially diminish or otherwise eliminate the benefits
intended to be afforded by the Rights or (y) prior to,
simultaneously with or immediately after such share exchange,
merger or sale, the Person which constitutes, or would constitute,
the "Principal Party" for purposes of Section 13(a) hereof shall
have distributed or otherwise transferred Rights previously owned
by such person or any of its Affiliates and Associates to its
shareholders or other persons holding an equity interest in such
Person; provided, however, this Section 11(n) shall not affect the
ability of any Subsidiary of the Company to effect a share exchange
with, merge with or into, or sell or transfer assets or earning
power to, any other Subsidiary of the Company.
Section 12. Certificate of Adjusted Purchase Price or
Number of Shares. Whenever an adjustment is made as provided in
Section 11 or 13 hereof, the Company shall promptly (a)
prepare a certificate setting forth such adjustment, and a
brief statement of the facts accounting for such adjustment, (b)
file with the Rights Agent and with each transfer agent for
the Company Common Stock a copy of such certificate and (c) mail
a brief summary thereof to each holder of a Right Certificate in
accordance with Section 25 hereof.
Section 13. Consolidation, Merger or Sale or Transfer of
Assets or Earning Power. In the event, directly or indirectly, at
any time after a Person has become an Acquiring Person, (a) the
Company shall consolidate with, or merge with and into, any other
Person, (b) any Person shall consolidate with the Company, or
merge with and into the Company and the Company shall be the
continuing or surviving corporation of such merger and, in
connection with such merger, all or part of the Common Shares
shall be changed into or exchanged for stock or other securities
of any other Person (or the Company) or cash or any other
property, or (c) the Company shall sell or otherwise transfer (or
one or more of its Subsidiaries shall sell or otherwise
transfer), in one or more transactions, assets or earning power
aggregating 50% or more of the assets or earning power of the
Company and its Subsidiaries (taken as a whole) to any other
Person other than the Company or one or more of its
wholly-owned Subsidiaries, then, and in each such case, proper
provision shall be made so that (i) each holder of a Right
(except as otherwise provided herein) shall thereafter have the
right to receive, upon the exercise thereof at a price equal to the
then current Purchase Price multiplied by the number of shares of
Company Common Stock for which a Right is then exercisable, in
accordance with the terms of this Agreement and in lieu of
shares of Company Common Stock, such number of Common Shares of
such other Person (including the Company as successor thereto or
as the surviving corporation) as shall equal the result
obtained by (A) multiplying the then current Purchase Price by
the number of shares of Company Common Stock for which a Right is
then exercisable and dividing that product by (B) 50% of the
then current per share market price of the Common Shares of
such other Person (determined pursuant to Section 11(d) hereof) on
the date of consummation of such consolidation, merger, sale or
transfer; (ii) the issuer of such Common Shares shall thereafter
be liable for, and shall assume, by virtue of such consolidation,
merger, sale or transfer, all the obligations and duties of the
Company pursuant to this Agreement; (iii) the term "Company"
shall thereafter be deemed to refer to such issuer; and (iv) such
issuer shall take such steps (including, but not limited to, the
reservation of a sufficient number of its Common Shares in
accordance with Section 9 hereof) in connection with such
consummation as may be necessary to assure that the provisions
hereof shall thereafter be applicable, as nearly as reasonably
may be, in relation to the Common Shares thereafter deliverable
upon the exercise of the Rights. The Company shall not consummate
any such consolidation, merger, sale or transfer unless prior
thereto the Company and such issuer shall have executed and
delivered to the Rights Agent a supplemental agreement so
providing. The Company shall not enter into any transaction of the
kind referred to in this Section 13 if at the time of such
transaction there are any rights, warrants, instruments or
securities outstanding or any agreements or arrangements which,
as a result of the consummation of such transaction, would
eliminate or substantially diminish the benefits intended to be
afforded by the Rights. The provisions of this Section 13 shall
similarly apply to successive mergers or consolidations or sales or
other transfers.
Section 14. Fractional Rights and Fractional Shares.
(a) The Company shall not be required to issue fractions of
Rights or to distribute Rights Certificates which evidence
fractional Rights. In lieu of such fractional Rights, there shall
be paid to the Persons to which such fractional Rights would
otherwise be issuable, an amount in cash equal to such fraction of
the market value of a whole Right. For purposes of this Section
14(a), the market value of a whole Right shall be the closing price
of the Rights for the Trading Day immediately prior to the date on
which such fractional Rights would have been otherwise issuable.
The closing price of the Rights for any day shall be, if the Rights
are listed or admitted to trading on a national securities
exchange, as reported in the principal consolidated transaction
reporting system with respect to securities listed on the principal
national securities exchange on which the Rights are listed or
admitted to trading, or, if the shares of Company Common Stock are
designated for inclusion in the NMS, as reported in the NMS, or if
the Rights are not listed or admitted to trading on any national
securities exchange, the last quoted sales price or, if not so
quoted, the average of the high bid and low asked prices in the
over-the-counter market, as reported by NASDAQ or such other system
then in use or, if on any such date the Rights are not quoted by
any such organization, the average of the closing bid and asked
prices as furnished by a professional market maker making a market
in the Rights selected by a majority of the Independent Directors.
If on any such date no such market marker is making a market in the
Rights, the fair value of the Rights on such date as determined in
good faith by the Board of Directors, with the concurrence of a
majority of the Independent Directors, shall be used and such
determination shall be described in a statement filed with the
Rights Agent and the holders of the Rights.
(b) The Company shall not be required to issue fractions of
shares of Company Common Stock upon exercise of the Rights or to
distribute certificates which evidence such fractional shares of
Company Common Stock. In lieu of such fractional shares of Company
Common Stock, the Company may pay to the registered holders of
Rights Certificates at the time such Rights are exercised as herein
provided an amount in cash equal to the same fraction of the then
current market value of one share of Company Common Stock. For
purposes of this Section 14(b), the current market value of one
share of Company Common Stock shall be the closing price of one
share of Company Common Stock (as the term "closing price" is used
in Section 11(d) hereof) for the Trading Day immediately prior to
the date of such exercise.
(c) The holder of a Right by the acceptance of the Rights
expressly waives his right to receive any fractional Rights or any
fractional shares upon exercise of a Right, except as permitted by
this Section 14.
Section 15. Rights of Action. All rights of action in
respect of this Agreement, excepting the rights of action given
to the Rights Agent under Section 18 hereof, are vested in the
respective registered holders of the Right Certificates (and,
prior to the Distribution Date, the registered holders of the
Common Shares); and any registered holder of any Right Certificate
(or, prior to the Distribution Date, of the Common Shares),
without the consent of the Rights Agent or of the holder of any
other Right Certificate (or, prior to the Distribution Date,
of the Common Shares), may, in his own behalf and for his own
benefit, enforce, and may institute and maintain any suit, action
or proceeding against the Company to enforce, or otherwise act
in respect of, his right to exercise the Rights evidenced by such
Right Certificate in the manner provided in such Right Certificate
and in this Agreement. Without limiting the foregoing or any
remedies available to the holders of Rights, it is
specifically acknowledged that the holders of Rights would not have
an adequate remedy at law for any breach of this Agreement and will
be entitled to specific performance of the obligations under,
and injunctive relief against actual or threatened violations
of the obligations of any Person subject to, this Agreement.
Section 16. Agreement of Right Holders. Every holder of a
Right, by accepting the same, consents and agrees with the
Company and the Rights Agent and with every other holder of a Right
that:
(a) prior to the Distribution Date, the Rights will be
transferable only in connection with the transfer of the Common
Shares;
(b) after the Distribution Date, the Right Certificates
are transferable only on the registry books of the Rights Agent
if surrendered at the principal office of the Rights Agent, duly
endorsed or accompanied by a proper instrument of transfer; and
(c) the Company and the Rights Agent may deem and treat
the person in whose name the Right Certificate (or, prior to the
Distribution Date, the associated Common Shares certificate) is
registered as the absolute owner thereof and of the Rights
evidenced thereby (notwithstanding any notations of ownership or
writing on the Right Certificates or the associated Common Shares
certificate made by anyone other than the Company or the Rights
Agent) for all purposes whatsoever, and neither the Company
nor the Rights Agent shall be affected by any notice to the
contrary.
Section 17. Right Certificate Holder Not Deemed a
Stockholder. No holder, as such, of any Right Certificate shall
be entitled to vote, receive dividends or be deemed for any
purpose the holder of shares of Common Stock or any other
securities of the Company which may at any time be issuable
on the exercise of the Rights represented thereby, nor shall
anything contained herein or in any Right Certificate be construed
to confer upon the holder of any Right Certificate, as such, any
of the rights of a stockholder of the Company or any right to vote
for the election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold
consent to any corporate action, or to receive notice of meetings
or other actions affecting stockholders (except as provided in
Section 25 hereof), or to receive dividends or subscription
rights, or otherwise, until the Right or Rights evidenced by
such Right Certificate shall have been exercised in
accordance with the provisions hereof.
Section 18. Concerning the Rights Agent. The Company agrees
to pay to the Rights Agent reasonable compensation for all
services rendered by it hereunder and, from time to time, on
demand of the Rights Agent, its reasonable expenses and counsel
fees and other disbursements incurred in the administration and
execution of this Agreement and the exercise and performance of
its duties hereunder. The Company also agrees to indemnify the
Rights Agent for, and to hold it harmless against, any loss,
liability, or expense, incurred without negligence, bad faith or
willful misconduct on the part of the Rights Agent, for anything
done or omitted by the Rights Agent in connection with the
acceptance and administration of this Agreement, including the
costs and expenses of defending against any claim of liability in
the premises.
The Rights Agent shall be protected and shall incur no
liability for, or in respect of any action taken, suffered or
omitted by it in connection with, its administration of this
Agreement in reliance upon any Right Certificate or certificate
for the shares of Common Stock or Common Shares or for other
securities of the Company, instrument of assignment or transfer,
power of attorney, endorsement, affidavit, letter, notice,
direction, consent, certificate, statement, or other paper or
document believed by it to be genuine and to be signed, executed
and, where necessary, verified or acknowledged, by the proper
person or persons, or otherwise upon the advice of counsel as
set forth in Section 20 hereof.
Section 19. Merger or Consolidation or Change of Name of
Rights Agent. Any corporation into which the Rights Agent or any
successor Rights Agent may be merged or with which it may be
consolidated, or any corporation resulting from any merger or
consolidation to which the Rights Agent or any successor Rights
Agent shall be a party, or any corporation succeeding to the
stock transfer or corporate trust powers of the Rights Agent or any
successor Rights Agent, shall be the successor to the Rights Agent
under this Agreement without the execution or filing of any
paper or any further act on the part of any of the parties
hereto; provided, that such corporation would be eligible for
appointment as a successor Rights Agent under the provisions of
Section 21 hereof. In case at the time such successor Rights
Agent shall succeed to the agency created by this Agreement, any
of the Right Certificates shall have been countersigned but not
delivered, any such successor Rights Agent may adopt the
countersignature of the predecessor Rights Agent and deliver such
Right Certificates so countersigned; and in case at that time any
of the Right Certificates shall not have been countersigned,
any successor Rights Agent may countersign such Right
Certificates either in the name of the predecessor Rights Agent
or in the name of the successor Rights Agent; and in all such
cases such Right Certificates shall have the full force
provided in the Right Certificates and in this Agreement.
In case at any time the name of the Rights Agent shall be
changed and at such time any of the Right Certificates
shall have been countersigned but not delivered, the Rights Agent
may adopt the countersignature under its prior name and deliver
Right Certificates so countersigned; and in case at that
time any of the Right Certificates shall not have been
countersigned, the Rights Agent may countersign such Right
Certificates either in its prior name or in its changed name;
and in all such cases such Right Certificates shall have the full
force provided in the Right Certificates and in this Agreement.
Section 20. Duties of Rights Agent. The Rights Agent
undertakes the duties and obligations imposed by this Agreement
upon the following terms and conditions, by all of which the
Company and the holders of Right Certificates, by their acceptance
thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel (who
may be legal counsel for the Company), and the opinion of such
counsel shall be full and complete authorization and protection
to the Rights Agent as to any action taken or omitted by it in good
faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this
Agreement the Rights Agent shall deem it necessary or desirable
that any fact or matter be proved or established by the Company
prior to taking or suffering any action hereunder, such fact or
matter (unless other evidence in respect thereof be herein
specifically prescribed) may be deemed to be conclusively proved
and established by a certificate signed by any one of the Chairman
of the Board, the Chief Executive Officer, the President, any Vice
President, the Treasurer or the Secretary of the Company and
delivered to the Rights Agent; and such certificate shall be full
authorization to the Rights Agent for any action taken or suffered
in good faith by it under the provisions of this Agreement in
reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the
Company and any other Person only for its own negligence,
bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason
of any of the statements of fact or recitals contained in this
Agreement or in the Right Certificates (except its
countersignature thereof) or be required to verify the same, but
all such statements and recitals are and shall be deemed to have
been made by the Company only.
(e) The Rights Agent shall not be under any responsibility
in respect of the validity of this Agreement or the execution and
delivery hereof (except the due execution hereof by the Rights
Agent) or in respect of the validity or execution of any Right
Certificate (except its countersignature thereof); nor shall it
be responsible for any breach by the Company of any covenant
or condition contained in this Agreement or in any Right
Certificate; nor shall it be responsible for any change in the
exercisability of the Rights (including the Rights becoming void
pursuant to Section 11(a)(ii) hereof) or any adjustment in the
terms of the Rights (including the manner, method or amount
thereof) provided for in Section 3, 11, 13, 23 or 24, or the
ascertaining of the existence of facts that would require any such
change or adjustment (except with respect to the exercise of Rights
evidenced by Right Certificates after actual notice that such
change or adjustment is required); nor shall it by any act
hereunder be deemed to make any representation or warranty
as to the authorization or reservation of any shares of Common
Stock to be issued pursuant to this Agreement or any Right
Certificate or as to whether any shares of Common Stock will,
when issued, be validly authorized and issued, fully
paid and nonassessable.
(f) The Company agrees that it will perform, execute,
acknowledge and deliver or cause to be performed, executed,
acknowledged and delivered all such further and other acts,
instruments and assurances as may reasonably be required by the
Rights Agent for the carrying out or performing by the Rights Agent
of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed
to accept instructions with respect to the performance of its
duties hereunder from any one of the Chairman of the Board,
the Chief Executive Officer, the President, any Vice
President, the Secretary or the Treasurer of the Company, and to
apply to such officers for advice or instructions in connection
with its duties, and it shall not be liable for any action taken
or suffered by it in good faith in accordance with instructions
of any such officer or for any delay in acting while waiting for
those instructions.
(h) The Rights Agent and any stockholder, director, officer
or employee of the Rights Agent may buy, sell or deal in any of the
Rights or other securities of the Company or become pecuniarily
interested in any transaction in which the Company may be
interested, or contract with or lend money to the Company or
otherwise act as fully and freely as though it were not Rights
Agent under this Agreement. Nothing herein shall preclude the
Rights Agent from acting in any other capacity for the Company or
for any other legal entity.
(i) The Rights Agent may execute and exercise any of
the rights or powers hereby vested in it or perform any duty
hereunder either itself or by or through its attorneys or
agents, and the Rights Agent shall not be answerable or
accountable for any act, default, neglect or misconduct of any
such attorneys or agents or for any loss to the Company resulting
from any such act, default, neglect or misconduct, provided
reasonable care was exercised in the selection and continued
employment thereof.
Section 21. Change of Rights Agent. The Rights Agent or any
successor Rights Agent may resign and be discharged from its
duties under this Agreement upon 30 days' notice in writing mailed
to the Company and to each transfer agent of the Common Shares or
shares of Common Stock by registered or certified mail, and to the
holders of the Right Certificates by first-class mail. The
Company may remove the Rights Agent or any successor Rights
Agent upon 30 days' notice in writing, mailed to the Rights Agent
or successor Rights Agent, as the case may be, and to each
transfer agent of the Common Shares or shares of Common Stock by
registered or certified mail, and to the holders of the Right
Certificates by first-class mail. If the Rights Agent shall
resign or be removed or shall otherwise become incapable of
acting, the Company shall appoint a successor to the Rights Agent.
If the Company shall fail to make such appointment within a
period of 30 days after giving notice of such removal or
after it has been notified in writing of such resignation or
incapacity by the resigning or incapacitated Rights Agent or by
the holder of a Right Certificate (who shall, with such notice,
submit his Right Certificate for inspection by the Company), then
the registered holder of any Right Certificate may apply to any
court of competent jurisdiction for the appointment of a new
Rights Agent. Any successor Rights Agent, whether appointed by the
Company or by such a court, shall be (a) a corporation organized
and doing business under the laws of the United States or of the
State of Mississippi (or of any other state of the United States
so long as such corporation is authorized to do business as a
banking institution in the State of Mississippi), in good standing,
having an office in the State of Mississippi, which is authorized
under such laws to exercise corporate trust or stock transfer
powers and is subject to supervision or examination by federal or
state authority and which has at the time of its appointment
as Rights Agent a combined capital and surplus of at least $50
million or (b) an affiliate of such a corporation. After
appointment, the successor Rights Agent shall be vested with the
same powers, rights, duties and responsibilities as if it had
been originally named as Rights Agent without further act
or deed; but the predecessor Rights Agent shall deliver and
transfer to the successor Rights Agent any property at the time
held by it hereunder, and execute and deliver any further
assurance, conveyance, act or deed necessary for the purpose. Not
later than the effective date of any such appointment the
Company shall file notice thereof in writing with the predecessor
Rights Agent and each transfer agent of the Common Shares or shares
of Common Stock, and mail a notice thereof in writing to the
registered holders of the Right Certificates. Failure to give
any notice provided for in this Section 21, however, or any
defect therein, shall not affect the legality or validity of
the resignation or removal of the Rights Agent or the appointment
of the successor Rights Agent, as the case may be.
Section 22. Issuance of New Right Certificates.
Notwithstanding any of the provisions of this Agreement or of the
Rights to the contrary, the Company may, at its option, issue new
Right Certificates evidencing Rights in such form as may be
approved by its Board of Directors to reflect any adjustment or
change in the Purchase Price and the number or kind or class
of shares or other securities or property purchasable under
the Right Certificates made in accordance with the provisions
of this Agreement.
Sction 23. Redemption.
(a) The Board of Directors of the Company may, at its option,
at any time prior to such time as any Person becomes an Acquiring
Person, redeem all but not less than all the then outstanding
Rights at a redemption price of $.01 per Right, appropriately
adjusted to reflect any stock split, stock dividend or similar
transaction occurring after the date hereof (such redemption
price being hereinafter referred to as the "Redemption Price"). The
redemption of the Rights by the Board of Directors may be made
effective at such time, on such basis and with such conditions as
the Board of Directors in its sole discretion may establish.
(b) Immediately upon the action of the Board of Directors of
the Company ordering the redemption of the Rights pursuant to
paragraph (a) of this Section 23, and without any further
action and without any notice, the right to exercise the Rights
will terminate and the only right thereafter of the holders of
Rights shall be to receive the Redemption Price. The Company
shall promptly give public notice of any such redemption;
provided, however, that the failure to give, or any defect in, any
such notice shall not affect the validity of such redemption.
Within 10 days after such action of the Board of Directors ordering
the redemption of the Rights, the Company shall mail a notice
of redemption to all the holders of the then outstanding
Rights at their last addresses as they appear upon the registry
books of the Rights Agent or, prior to the Distribution Date, on
the registry books of the transfer agent for the Common Shares.
Any notice which is mailed in the manner herein provided shall be
deemed given, whether or not the holder receives the notice. Each
such notice of redemption will state the method by which the
payment of the Redemption Price will be made. Neither the
Company nor any of its Affiliates or Associates may redeem,
acquire or purchase for value any Rights at any time in any manner
other than that specifically set forth in this Section 23 or in
Section 24 hereof, and other than in connection with the
purchase of Common Shares prior to the Distribution Date.
Section 24. Exchange.
(a) The Board of Directors of the Company may, at its
option, at any time after any Person becomes an Acquiring
Person, exchange all or part of the then outstanding and
exercisable Rights (which shall not include Rights that have
become void pursuant to the provisions of Section 11(a)(ii)
hereof) for Common Shares at an exchange ratio of one Common Share
per Right, appropriately adjusted to reflect any stock split,
stock dividend or similar transaction occurring after the date
hereof (such exchange ratio being hereinafter referred to as the
"Exchange Ratio"). Notwithstanding the foregoing, the Board of
Directors shall not be empowered to effect such exchange at any
time after any Person (other than the Company, any Subsidiary of
the Company, any employee benefit plan of the Company or any such
Subsidiary, or any entity holding Common Shares for or pursuant
to the terms of any such plan), together with all Affiliates and
Associates of such Person, becomes the Beneficial Owner of 50% or
more of the Common Shares then outstanding.
(b) Immediately upon the action of the Board of Directors of
the Company ordering the exchange of any Rights pursuant to
paragraph (a) of this Section 24 and without any further action
and without any notice, the right to exercise such Rights shall
terminate and the only right thereafter of a holder of such
Rights shall be to receive that number of Common Shares equal to
the number of such Rights held by such holder multiplied by the
Exchange Ratio. The Company shall promptly give public notice of
any such exchange; provided, however, that the failure to give,
or any defect in, such notice shall not affect the validity of
such exchange. The Company promptly shall mail a notice of any
such exchange to all of the holders of such Rights at their
last addresses as they appear upon the registry books of the Rights
Agent. Any notice which is mailed in the manner herein provided
shall be deemed given, whether or not the holder receives the
notice. Each such notice of exchange will state the method by
which the exchange of the Common Shares for Rights will be
effected and, in the event of any partial exchange, the number of
Rights which will be exchanged. Any partial exchange shall be
effected pro rata based on the number of Rights (other than Rights
which have become void pursuant to the provisions of Section
11(a)(ii) hereof) held by each holder of Rights.
(c) In the event that there shall not be sufficient
Common Shares issued but not outstanding or authorized but
unissued to permit any exchange of Rights as contemplated in
accordance with this Section 24, the Company shall take all such
action as may be necessary to authorize additional Common Shares
for issuance upon exchange of the Rights. In the event the Company
shall, after good faith effort, be unable to take all such
action as may be necessary to authorize such additional Common
Shares, the Company shall substitute, for each Common Share that
would otherwise be issuable upon exchange of a Right, a number of
shares of Common Stock or fraction thereof such that the current
per share market price of one share of Common Stock multiplied by
such number or fraction is equal to the current per share market
price of one Common Share as of the date of issuance of such shares
of Common Stock or fraction thereof.
(d) The Company shall not be required to issue fractions
of Common Shares or to distribute certificates which evidence
fractional Common Shares. In lieu of such fractional Common
Shares, the Company shall pay to the registered holders of the
Right Certificates with regard to which such fractional
Common Shares would otherwise be issuable an amount in cash equal
to the same fraction of the current market value of a whole Common
Share. For the purposes of this paragraph (d), the current market
value of a whole Common Share shall be the closing price of a
Common Share (as determined pursuant to the second sentence of
Section 11(d)(i) hereof) for the Trading Day immediately prior
to the date of exchange pursuant to this Section 24.
Section 25. Notice of Certain Events.
(a) In case the Company shall propose (i) to pay any dividend
payable in stock of any class to the holders of its Company Common
Stock or to make any other distribution to the holders of its
Company Common Stock (other than a regular quarterly cash
dividend), (ii) to offer to the holders of its Company Common
Stock rights or warrants to subscribe for or to purchase any
additional Company Common Stock or shares of stock of any class or
any other securities, rights or options, (iii) to effect any
reclassification of its Company Common Stock (other than a
reclassification involving only the subdivision of outstanding
Company Common Stock), (iv) to effect any consolidation or merger
into or with, or to effect any sale or other transfer (or to
permit one or more of its Subsidiaries to effect any sale or
other transfer), in one or more transactions, of 50% or more of
the assets or earning power of the Company and its Subsidiaries
(taken as a whole) to, any other Person, (v) to effect the
liquidation, dissolution or winding up of the Company, or (vi) to
declare or pay any dividend on the Common Shares payable in
Common Shares or to effect a subdivision, combination or
consolidation of the Common Shares (by reclassification or
otherwise than by payment of dividends in Common Shares), then,
in each such case, the Company shall give to each holder of
a Right Certificate, in accordance with Section 26 hereof, a
notice of such proposed action, which shall specify the record
date for the purposes of such stock dividend, or distribution
of rights or warrants, or the date on which such
reclassification, consolidation, merger, sale, transfer,
liquidation, dissolution, or winding up is to take place and
the date of participation therein by the holders of the Common
Shares and/or Company Common Stock, if any such date is to be
fixed, and such notice shall be so given in the case of any action
covered by clause (i) or (ii) above at least 10 days prior to the
record date for determining holders of the Company Common Stock
for purposes of such action, and in the case of any such other
action, at least 10 days prior to the date of the taking of such
proposed action or the date of participation therein by the
holders of the Common Shares and/or Company Common Stock, whichever
shall be the earlier.
(b) In case the event set forth in Section 11(a)(ii)
hereof shall occur, then the Company shall as soon as practicable
thereafter give to each holder of a Right Certificate, in
accordance with Section 26 hereof, a notice of the occurrence of
such event, which notice shall describe such event and the
consequences of such event to holders of Rights under Section
11(a)(ii) hereof.
Section 26. Notices. Notices or demands authorized by this
Agreement to be given or made by the Rights Agent or by the
holder of any Right Certificate to or on the Company shall be
sufficiently given or made if sent by first-class mail, postage
prepaid, addressed (until another address is filed in writing with
the Rights Agent) as follows:
Hancock Holding Company
2510 14th Street
Gulfport, MS 39501
Attention: Corporate Secretary
Subject to the provisions of Section 21 hereof, any notice or
demand authorized by this Agreement to be given or made by the
Company or by the holder of any Right Certificate to or on the
Rights Agent shall be sufficiently given or made if sent by
first-class mail, postage prepaid, addressed (until another
address is filed in writing with the Company) as follows:
Hancock Bank
2510 14th Street
Gulfport, MS 39501
Attention: Trust Department
Notices or demands authorized by this Agreement to be given or
made by the Company or the Rights Agent to the holder of any
Right Certificate shall be sufficiently given or made if sent
by first-class mail, postage prepaid, addressed to such holder
at the address of such holder as shown on the registry books of the
Company.
Section 27. Supplements and Amendments. The Company may
from time to time supplement or amend this Agreement without the
approval of any holders of Right Certificates in order to cure any
ambiguity, to correct or supplement any provision contained herein
which may be defective or inconsistent with any other provisions
herein, or to make any other provisions with respect to the
Rights which the Company may deem necessary or desirable, any
such supplement or amendment to be evidenced by a writing
signed by the Company and the Rights Agent; provided, however,
that from and after such time as any Person becomes an Acquiring
Person, this Agreement shall not be amended in any manner which
would adversely affect the interests of the holders of Rights.
Section 28. Successors. All the covenants and provisions
of this Agreement by or for the benefit of the Company or the
Rights Agent shall bind and inure to the benefit of their
respective successors and assigns hereunder.
Section 29. Benefits of this Agreement. Nothing in this
Agreement shall be construed to give to any person or corporation
other than the Company, the Rights Agent and the registered
holders of the Right Certificates (and, prior to the Distribution
Date, the Common Shares) any legal or equitable right, remedy or
claim under this Agreement; but this Agreement shall be for the
sole and exclusive benefit of the Company, the Rights Agent
and the registered holders of the Right Certificates (and,
prior to the Distribution Date, the Common Shares).
Section 30. Severability. If any term, provision,
covenant or restriction of this Agreement is held by a court of
competent jurisdiction or other authority to be invalid, void
or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full
force and effect and shall in no way be affected, impaired or
invalidated.
Section 31. Governing Law. This Agreement and each Right
Certificate issued hereunder shall be deemed to be a contract
made under the laws of the State of Mississippi and for all
purposes shall be governed by and construed in accordance with
the laws of such State applicable to contracts to be made and
performed entirely within such State.
Section 32. Counterparts. This Agreement may be executed in
any number of counterparts and each of such counterparts shall
for all purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same
instrument.
Section 33. Descriptive Headings. Descriptive headings of
the several Sections of this Agreement 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
Agreement to be duly executed and attested, all as of the day
and year first above written.
HANCOCK HOLDING COMPANY
Attest:
By: By:
Name: /s/ George A. Schloegel Name: /s/Leo W. Seal, Jr.
Title: Vice Chairman Title: President and Chief
Executive Officer
HANCOCK BANK
Attest:
By: Leo W. Seal, Jr. By: George A. Schloegel
Title: President and CEO Title: Vice Chairman
<PAGE>
EXHIBIT "A"
FORM OF ARTICLES OF AMENDMENT OF HANCOCK HOLDING COMPANY
ARTICLES OF AMENDMENT
TO THE ARTICLES OF INCORPORATION
OF
HANCOCK HOLDING COMPANY
GULFPORT, MISSISSIPPI
Pursuant to the provisions of the Miss. Code Ann., Sections
79-4-10.01 through 79-4-10.09 (1996), the undersigned corporation
hereby adopts the following Articles of Amendment to its Articles
of Incorporation:
FIRST: The name of the corporation is Hancock Holding Company.
SECOND: The following Amendments to the Amended and Restated
Articles of Incorporation of Hancock Holding Company (the
"Articles") were adopted by the Board of Directors on December 12,
1996 and by the Stockholders at the Annual Meeting held on February
20, 1997, in the manner prescribed by law:
1. An amendment to Article Two of the Articles to
increase the number of shares of Common Stock,
$3.33 par value, which the corporation has
authority to issue to 75,000,000 to read in its
entirety as follows:
SECOND: The aggregate number of shares
which the Corporation shall have
authority to issue is seventy-five
million (75,000,000) of the par value of
three dollars and thirty-three cents
($3.33) each.
2. An amendment to Article Six of the Articles to
conform Article Six to the Mississippi Business
Corporations Act to read in its entirety as
follows:
SIXTH: A director shall not be liable to the
Corporation or its shareholders for money
damages for any action taken, or any failure
to take any action, as a director, except
liability for: (i) the amount of financial
benefit received by a director to which he is
not entitled; (ii) an intentional infliction
of harm on the Corporation or its
shareholders; (iii) a violation of Mississippi
Code Annotated Section 79-4-8.33(1972), as
amended; or (iv) an intentional violation of
criminal law. The Corporation shall indemnify
any person (or the heirs, executors and
administrators of any person) who was or is a
party to, or is threatened to be made a party
to, any threatened, pending or completed
action, suit or proceeding, whether civil,
criminal, administrative, investigative or
otherwise, formal or informal (a "Proceeding"),
by reason of the fact that such person is or
was a director, officer, employee or agent of
the Corporation, or is or was serving at the
request of the Corporation as a director,
officer, partner, trustee, employee or agent
of another corporation, partnership, joint
venture, trust, employee benefit plan or other
enterprise, against any obligation to pay a
judgment, settlement, penalty, fine (including
an excise tax assessed with respect to an
employee benefit plan) or reasonable expenses
(including legal fees) incurred with respect
to the Proceeding: (A) to the fullest extent
permitted by the Mississippi Business
Corporation Act in effect from time to time
(the "Act") and (B) despite the fact that such
person has failed to meet the standard of
conduct set forth in the Act, or would be
disqualified for indemnification under the Act
for any reason, if a determination is made by
one of the following determining bodies
(Collectively, the "Determining Bodies"): (i)
the board of directors by majority vote of a
quorum consisting of directors not at the time
parties to the Proceeding, (ii) if a quorum
cannot be obtained under (i), by majority vote
of a committee duly designated by the board of
directors (in which designation directors who
are parties may participate), consisting of
two or more directors not at the time parties
to the Proceeding, (iii) by special legal
counsel (a) selected by the board of directors
or its committee in the manner prescribed in
(i) or (ii) or (b) if a quorum of the board of
directors cannot be obtained under (i) and a
committee cannot be designated under (ii),
selected by majority vote of the full board of
directors (in which selection directors who
are parties may participate, (iv) by the
shareholders (but shares owned by or voted
under the control of directors who are at the
time parties to the Proceeding may not be
voted on the determination) or (v) by a court,
that the acts or omissions of the director,
officer, employee or agent did not constitute
gross negligence or willful misconduct.
However the Corporation shall not indemnify a
person for: (i) an intentional infliction of
harm on the Corporation or its shareholders;
(ii) a violation of Mississippi Code Annotated
Section 79-4-8.33 (1972), as amended; or for
(iii) an intentional violation of criminal
law, and the Corporation shall not indemnify a
person for receipt of a financial benefit to
which he is not entitled unless ordered by a
court under Mississippi Code Annotated,
Section 79-4-8.54(9)(3). The Corporation
shall indemnify a person in connection with a
proceeding by or in the right of the
Corporation for reasonable expenses incurred
in connection with the Proceeding if such acts
or omissions do not constitute gross
negligence or willful misconduct, and shall
make further indemnification in connection
with the Proceeding if so ordered by a court
under Mississippi Code Annotated, Section
79-4-8.54(9)(3).The Corporation upon request
shall pay or reimburse such person for his
reasonable expenses (including legal fees) in
advance of final disposition of the Proceeding
as long as: (i) such person furnishes the
Corporation a written undertaking, executed
personally or on his behalf, to repay the
advance if he is not entitled to mandatory
indemnification under Mississippi Code
Annotated, Section 79-4-8.52 and it is
ultimately determined by a judgment or other
final adjudication that his acts or omissions
did constitute gross negligence or willful
misconduct, which undertaking must be an
unlimited general obligation of such person,
and which shall be accepted by the Corporation
without reference to the financial ability of
the person to make repayment or to collateral;
(ii) such person furnishes a written
affirmation of his good faith that his acts or
omissions did not constitute gross negligence
or willful misconduct; and (iii) a
determination is made by any of the
Determining Bodies that the facts then known
to those making the determination would not
preclude indemnification under this Article
SIXTH.
Neither the amendment nor repeal of this
Article SIXTH, nor the adoption or amendment
of any other provision of the Corporation's
bylaws or these Amended and Restated Articles
of Incorporation inconsistent with this
Article SIXTH, shall apply to or affect in any
respect the applicability of the preceding
paragraph with respect to any act or failure
to act which occurred prior to such amendment,
repeal or adoption.
THIRD: The designation, number of outstanding shares, number
of votes entitled to be cast on the Amendments, and the number of
votes indisputably are as follows:
AS TO AMENDMENT 1:
Number of Votes Number of
Number of Shares Votes Entitled Indisputably
Designation Outstanding To Be Cast Represented
Common Stock 10,725,102 10,725,102 8,457,064.69
AS TO AMENDMENT 2:
Number of Votes Number of
Number of Shares Votes Entitled Indisputably
Designation Outstanding To Be Cast Represented
Common Stock 10,725,102 10,725,102 8,457,064.69
FOURTH: Of the 8,457,064.69 shares of common stock
indisputably represented at the Annual Meeting of Stockholders, the
following votes were cast FOR and AGAINST the Amendment as follows:
AS TO AMENDMENT 1:
Total Number Total Number Total Number
Number of of Votes of Votes of Votes
Votes Cast Cast FOR Cast AGAINST ABSTAINING
8,331,324.69 7,762,126.17 539,376.69 29,821.83
AS TO AMENDMENT 2:
Total Number Total Number Total Number
Number of of Votes of Votes of Votes
Votes Cast Cast FOR Cast AGAINST ABSTAINING
8,317,056.69 8,294,723.33 4,614.53 17,718.83
FIFTH: The number of votes cast for the amendments to the
Articles of Incorporation by each voting group was sufficient for
approval by the voting group.
NOW, THEREFORE, Hancock Holding Company, Gulfport,
Mississippi, acting by and through its undersigned officer, hereby
submits these Articles of Amendment, all in accordance with Miss.
Code Ann., Section 79-4-10.06 (1996).
DATED: , 1997.
HANCOCK HOLDING COMPANY
By:
Leo W. Seal, Jr.
President
STATE OF MISSISSIPPI
COUNTY OF HARRISON
Personally appeared before me, the undersigned authority in
and for the jurisdiction aforesaid, the within named LEO W. SEAL,
JR. who being by me personally sworn, declared that he is the
President, of Hancock Holding Company, that he executed the
foregoing document as President of the corporation on its behalf,
he being so authorized to do; and that the statements contained
therein are true.
GIVEN UNDER MY HAND AND OFFICIAL SEAL on this the day of
, 1997.
NOTARY PUBLIC
My Commission Expires:
<PAGE>
EXHIBIT "B"
Form of Right Certificate
Certificate No. R- Rights
NOT EXERCISABLE AFTER FEBRUARY 21, 2007 OR EARLIER IF REDEMPTION OR
EXCHANGE OCCURS. THE RIGHTS ARE SUBJECT TO REDEMPTION AT $.01 PER
RIGHT AND TO EXCHANGE ON THE TERMS SET FORTH IN THE RIGHTS
AGREEMENT.
Right Certificate
HANCOCK HOLDING COMPANY
This certifies that , or registered
assigns, is the registered owner of the number of Rights set forth
above, each of which entitles the owner thereof, subject to the
terms, provisions and conditions of the Rights Agreement, dated as
of February 21, 1997 (the "Rights Agreement"), between Hancock
Holding Company, a Mississippi corporation (the "Company"), and
Hancock Bank (the "Rights Agent"), to purchase from the Company at
any time after the Distribution Date (as such term is defined in
the Rights Agreement) and prior to 5:00 P.M., Gulfport, Mississippi
time, on February 21, 2007 at the principal office of the Rights
Agent, or at the office of its successor as Rights Agent, one share
of Common Stock, $3.33 par value (the "Common Stock"), of the
Company, at a purchase price of $120.00 per $3.33 par value share
(the "Purchase Price"), upon presentation and surrender of this
Right Certificate with the Form of Election to Purchase duly
executed. The number of Rights evidenced by this Right Certificate
(and the number of shares of Common Stock which may be purchased
upon exercise hereof) set forth above, and the Purchase Price set
forth above, are the number and Purchase Price as of February 21,
1997, based on the shares of Common Stock as constituted at such
date. As provided in the Rights Agreement, the Purchase Price and
the number of shares of Common Stock which may be purchased upon
the exercise of the Rights evidenced by this Right Certificate are
subject to modification and adjustment upon the happening of
certain events.
This Right Certificate is subject to all of the terms,
provisions and conditions of the Rights Agreement, which terms,
provisions and conditions are hereby incorporated herein by
reference and made a part hereof and to which Rights Agreement
reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities hereunder
of the Rights Agent, the Company and the holders of the Right
Certificates. Copies of the Rights Agreement are on file at the
principal executive offices of the Company and the above-mentioned
offices of the Rights Agent.
This Right Certificate, with or without other Right
Certificates, upon surrender at the principal office of the Rights
Agent, may be exchanged for another Right Certificate or Right
Certificates of like tenor and date evidencing Rights entitling the
holder to purchase a like aggregate number of shares of Common
Stock as the Rights evidenced by the Right Certificate or Right
Certificates surrendered shall have entitled such holder to
purchase. If this Right Certificate shall be exercised in part, the
holder shall be entitled to receive upon surrender hereof another
Right Certificate or Right Certificates for the number of whole
Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights
evidenced by this Certificate (i) may be redeemed by the Company at
a redemption price of $.01 per Right payable at the Company's option
in cash or in Common Stock of the Company subject to adjustment in
certain events as provided in the Rights Agreement.
No fractional shares of Common Stock will be issued upon the
exercise of any Right or Rights evidenced hereby, but in lieu
thereof a cash payment will be made, as provided in the Rights
Agreement.
No holder of this Right Certificate shall be entitled to vote
or receive dividends or be deemed for any purpose the holder of the
Common Stock or of any other securities of the Company which may at
any time be issuable on the exercise hereof, nor shall anything
contained in the Rights Agreement or herein be construed to confer
upon the holder hereof, as such, any of the rights of a stockholder
of the Company or any right to vote for the election of directors
or upon any matter submitted to stockholders at any meeting
thereof, or to give or withhold consent to any corporate action, or
to receive notice of meetings or other actions affecting
stockholders (except as provided in the Rights Agreement), or to
receive dividends or subscription rights, or otherwise, until the
Right or Rights evidenced by this Right Certificate shall have been
exercised as provided in the Rights Agreement.
This Right Certificate shall not be valid or obligatory for
any purpose until it shall have been countersigned by the Rights
Agent.
WITNESS the facsimile signature of the proper officers of the
Company and its corporate seal. Dated as of February 21, 1997.
ATTEST: HANCOCK HOLDING COMPANY
By: (form, do not sign)
Countersigned:
HANCOCK BANK
By: (form, do not sign)
Authorized Signature
<PAGE>
Form of Reverse Side of Right Certificate
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder
desires to transfer the Right Certificate.)
FOR VALUE RECEIVED
hereby sells, assigns and transfers unto
(Please print name and address of transferee)
this Right Certificate, together with all right, title and interest
therein, and does hereby irrevocably constitute and appoint
Attorney, to transfer the within Right Certificate on the books of
the within-named Company, with full power of substitution.
Dated:
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered
national securities exchange, a member of the National Association
of Securities Dealers, Inc., or a commercial bank or trust company
having an office or correspondent in the United States.
The undersigned hereby certifies that the Rights evidenced by
this Right Certificate are not beneficially owned by an Acquiring
Person or an Affiliate or Associate thereof (as defined in the
Rights Agreement).
Signature
<PAGE>
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to exercise
Rights represented by the Right Certificate.)
To: HANCOCK HOLDING COMPANY
The undersigned hereby irrevocably elects to exercise Rights
represented by this Right Certificate to purchase the Common Stock
issuable upon the exercise of such Rights and requests that
certificates for such Common Stock be issued in the name of:
Please insert social security or other identifying number:
(Please print name and address)
If such number of Rights shall not be all the Rights evidenced by
this Right Certificate, a new Right Certificate for the balance
remaining of such Rights shall be registered in the name of and
delivered to:
Please insert social security or other identifying number:
(Please print name and address)
Dated:
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered
national securities exchange, a member of the National Association
of Securities Dealers, Inc., or a commercial bank or trust company
having an office or correspondent in the United States.
The undersigned hereby certifies that the Rights evidenced by
this Right Certificate are not beneficially owned by an Acquiring
Person or an Affiliate or Associate thereof (as defined in the
Rights Agreement).
Signature
NOTICE
The signature in the Form of Assignment or Form of Election to
Purchase, as the case may be, must conform to the name as written
upon the face of this Right Certificate in every particular,
without alteration or enlargement or any change whatsoever.
In the event the certification set forth above in the Form of
Assignment or the Form of Election to Purchase, as the case may be,
is not completed, the Company and the Rights Agent will deem the
beneficial owner of the Rights evidenced by this Right Certificate
to be an Acquiring Person or an Affiliate or Associate thereof (as
defined in the Rights Agreement) and such Assignment or Election to
Purchase will not be honored.
<PAGE>
EXHIBIT "C"
SUMMARY OF SHAREHOLDER RIGHTS PLAN
Form of Security
The Board of Directors declared a dividend of one common stock
purchase right (a "Right") for each outstanding share of HHC's
Common Stock held of record as of the close of business on
February 20, 1997.
Transfer
Prior to the Distribution Date 1/, the Rights will attach to
and be evidenced by the certificates representing shares of
outstanding Common Stock. The registered holders of the
Common Stock will be deemed to be the registered holders of
the Rights.
After the Distribution Date, the Rights Agent will mail
separate certificates evidencing the Rights to each record
holder of the Common Stock as of the close of business on the
Distribution Date. Thereafter, the Rights will be
transferable separately from the Common Stock.
Exercise
Prior to the Distribution Date, the Rights will not be
exercisable.
After the Distribution Date, each Right will be exercisable to
purchase one share of HHC Common Stock for $120 per share,
subject to adjustment (the "Purchase Price").
Flip-In (Buy HHC Common Stock at 50% C.M.V.)
If: (1) any person or group not affiliated with the Company
becomes the beneficial owner of 10% or more of HHC's Common
Stock (an "Acquiring Person"), or (2) the Board determines the
existence of an Adverse Person, then, each Right (other than
Rights beneficially owned by the Acquiring Person or Adverse
Person) will entitle the holder to receive, upon exercise, a
share of HHC's Common Stock at an adjusted Purchase Price of
50% of the current market value of such share.
FOOTNOTE 1/ Distribution Date means the earlier of (1) the 10th day
after public announcement that any person or group has become the
beneficial owner of 10% or more of the HHC's Common Stock; or (2)
the 10th day after the date of the commencement of a tender or
exchange offer by any person which would, if consummated, result in
such person becoming the beneficial owner of 10% or more of the
HHC's Common Stock; or (3) the close of business on the 10th
business day after a majority of the Board of Directors who are not
officers of the Company determine that a person has become a
beneficial owner of 10% or more of the outstanding Common Stock and
is an Adverse Person.
Optional Exchange
At any time after the occurrence of a triggering event, the
Board of Directors may exchange all or part of the Rights
(other than Rights owned by the Acquiring Person) for shares
of Common Stock at an exchange ratio of one share of Common
Stock per Right.
Flip-Over (Buy Other Company's Stock at 50% of C.M.V.)
If, after any person has become an Acquiring Person, (1) the
Company is involved in a merger or other business combination
in which the Company is not the surviving corporation, (2) all
or part of the HHC's Common Stock is converted or exchanged
for securities, cash or assets of any other person or (3) 50%
or more of the assets or earning power of the Company and its
subsidiaries, taken as a whole, is sold or transferred, then
each Right will entitle the holder to purchase, for the
Purchase Price, that number of shares of common stock of the
other party purchasable for the Purchase Price at a price of
50% of the current market value.
Redemption
The Board of Directors may redeem all of the Rights at a price
of $.01 per Right at any time prior to the close of business
on the 10th day after public announcement that any person has
become an Acquiring Person (subject to extension by a majority
of the Continuing Directors).
Expiration
The rights will expire on February 20, 2007, unless earlier
exchanged or redeemed.
Amendments
Prior to the Distribution Date, the Rights Agreement may be
amended in any respect without shareholder approval.
After the Distribution Date, the Rights Agreement may be
amended in certain respects without shareholder approval,
however, after any person has become an Acquiring Person, no
such amendment may adversely affect the interests of holder of
Rights.
Voting Rights
Rights holders have no rights as a shareholder of the Company,
including, without limitation, the right to vote or to receive
dividends, until a Right is exercised.
Anti-takeover Effects
The Rights have certain anti-takeover effects by causing
substantial dilution to an Acquiring Person or Adverse Person.
However, the Rights should not interfere with any merger
approved by the Board.
Taxes
While the dividend of the Rights will not be taxable to
shareholders or to the Company, shareholders or the Company
may, depending upon the circumstances, recognize taxable
income in the event that the Rights become exercisable as set
forth above.
