SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K/A1
AMENDMENT TO APPLICATION OR REPORT
Filed pursuant to Section 12, 13 or 15(d) of
THE SECURITIES EXCHANGE ACT OF 1934
LBP, INC.
(Exact name of registrant in charter)
AMENDMENT NO. 1
Delaware 0-24094 13-3764375
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(State or other (Commission File No.) (I.R.S. Employer
jurisdiction of Identification No.)
incorporation
The undersigned registrant hereby amends the following items, financial
statements, exhibits or other portions of its Current Report on Form 8-K dated
December 28, 1998 as set forth in the attached hereto:
Item 7. Financial Statements and Exhibits
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this amendment to be signed on its behalf by the
undersigned, thereunto duly authorized.
LBP, INC.
(Registrant)
/s/ Fredric M. Zinn
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By: Fredric M. Zinn
Chief Financial Officer
Date: January 29, 1999
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Item 7. Financial Statements and Exhibits
c) Exhibits
1) Articles Supplementary of Series 10.5% Cumulative Convertible
Preferred Stock of Impac Mortgage Holdings, Inc. dated
December 22, 1998.
2) Stock Purchase Agreement dated December 22, 1998.
Exhibit 1
ARTICLES SUPPLEMENTARY
OF
SERIES B 10.5% CUMULATIVE CONVERTIBLE PREFERRED STOCK
OF
IMPAC MORTGAGE HOLDINGS, INC.
Impac Mortgage Holdings, Inc., a corporation organized and existing under
the laws of the State of Maryland (the "Corporation"), hereby certifies to the
State Department of Assessments and Taxation of Maryland that:
FIRST: Pursuant to the authority granted to and vested in the Board of
Directors of the Corporation (the "Board of Directors") in accordance with
Article VI of the charter of the Corporation, including these Articles
Supplementary (the "Charter"), the Board of Directors adopted resolutions
reclassifying 1,200,000 shares (the "Shares") of Preferred Stock (as defined in
the Charter) as a separate series of stock, Series B 10.5% Cumulative
Convertible Preferred Stock, $.01 par value per share (the "Series B Preferred
Stock"), with the preferences, conversion and other rights, voting powers,
restrictions, limitations as to dividends or other distributions,
qualifications, and terms and conditions of redemption set forth below. Upon any
restatement of the Charter, the immediately following heading and Sections 1
through 10 of this Article FIRST shall become Section 6.7 of Article VI of the
Charter.
Series B 10.5% Cumulative Convertible Preferred Stock
Section 1. Definitions. Unless the context otherwise requires, the terms
defined in this Section 1 shall have, for all purposes of these
Articles Supplementary, the meanings herein specified (with terms
defined in the singular having comparable meanings when used in the
plural).
"Act" shall mean the Securities Act of 1933, as amended.
"affiliate" of a person means a person that directly, or indirectly
through one or more intermediaries, controls or is controlled by, or is under
common control with, the person specified.
"AMEX" shall mean the American Stock Exchange.
"Average Net Worth" for any period means the arithmetic average of the sum
of the gross proceeds from any sale of the Corporation's equity securities,
before deducting any underwriting discounts and commissions and other expenses
(without taking into account any losses incurred in prior periods) computed by
taking the daily average of such values during such period.
"Benefit Plan Investor" means (1) an employee benefit plan (as defined by
Section 3(3) of ERISA), whether or not it is subject to Title I of ERISA; (2) a
plan as described in Section 4975 of the Code; (3) an entity whose underlying
assets include the assets of any plan described in clause (1) or (2) by reason
of the plan's investment in such entity (including but not limited to an
insurance company general account); or (4) an entity that otherwise constitutes
a "benefit plan investor" within the meaning of the Plan Asset Regulation.
"Board of Directors" shall mean the Board of Directors of the Corporation
or any committee authorized by such Board of Directors to perform any of its
responsibilities with respect to the Series B Preferred Stock.
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"Business Day" shall mean any day other than a Saturday, Sunday or a day
on which state or federally chartered banking institutions in New York, New York
are not required to be open.
"Change of Control Transaction" means the occurrence of (i) an acquisition
after the date hereof, in one or a series of related transactions, by any
individual or legal entity or "group" (as described in Rule 13d-5(b)(1) under
the Exchange Act) of more than 50% of the voting securities of the Corporation
or all or substantially all of the assets of the Corporation; (ii) any merger or
consolidation of the Corporation with or into another entity, in one or a series
of related transactions, unless the holders of the Corporation's securities
immediately prior to such transaction continue to hold, immediately after such
transaction, at least 50% of the voting securities of the entity that survives
such transaction; or (iii) the execution by the Corporation of an agreement to
which the Corporation is a party or by which it is bound providing for any of
the events set forth above in (i) or (ii).
"Common Stock" shall mean the common stock, $.01 par value per share, of
the Corporation or such shares of the Corporation's capital stock into which
outstanding shares of Common Stock shall be reclassified.
"Constituent Person" shall have the meaning set forth in subsection (d) of
Section 8.
"Conversion Date" means the date on which a Series B Holder has delivered
written notice to the Corporation that such Series B Holder elects to convert
Series B Preferred Stock into Common Stock, together with the certificate
evidencing such shares of Series B Preferred Stock.
"Conversion Price" shall mean the conversion price per share of Common
Stock at which shares of the Series B Preferred Stock is convertible into shares
of Common Stock, as such Conversion Price may be adjusted pursuant to Section 8.
The initial Conversion Price shall be $4.95 (equivalent to a conversion rate of
5.050505 shares of Common Stock for each share of Series B Preferred Stock).
"Current Market Price" of publicly traded Common Stock or any other class
of shares or other security of the Corporation or any other issuer for any day
shall mean the last reported sales price, regular way, on such day or, if no
sale takes place on such day, the average of the reported closing bid and asked
prices on such day, regular way, in either case as reported on the AMEX or, if
such security is not listed or admitted for trading on the AMEX, on the
principal national securities exchange on which such security is listed or
admitted for trading or, if not listed or admitted for trading on any national
securities exchange, on the Nasdaq National Market or, if such security is not
quoted on the Nasdaq National Market, the average of the closing bid and asked
prices on such day in the over-the-counter market as reported by Nasdaq or, if
bid and asked prices for such security on such day shall not have been reported
through Nasdaq, the average of the bid and asked prices on such day as furnished
by any AMEX member firm regularly making a market in such security and selected
for such purpose by the Chief Executive Officer of the Corporation or the Board
of Directors or, if such security is not so listed or quoted, as determined in
good faith at the sole discretion of the Chief Executive Officer of the
Corporation or the Board of Directors, which determination shall be final,
conclusive and binding.
"Distribution Payment Date" shall have the meaning set forth in Section 4.
"Distribution Period" shall have the meaning set forth in Section 4.
"Dividend Ratchet Amount" shall mean for any calendar quarter, the
aggregate of all distributions (including non-regular dividends such as special
capital gain distributions) declared on the number of shares of Common Stock (or
portions thereof, without giving effect to the requirements under subsection (c)
of Section 8) into which each share of Series B Preferred Stock is then
convertible (i.e., an amount equal to the number of shares of Common Stock (or
portions thereof, without giving effect to the requirements under subsection (c)
of Section 8) into which one share of Series B Preferred Stock is convertible,
multiplied by the aggregate of all distributions (including non-regular
dividends) declared per share of Common Stock for such quarter).
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"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Fair Market Value" shall mean the fair market value as determined in good
faith at the sole discretion of the Chief Executive Officer or the Board of
Directors, which determination shall be final, conclusive and binding.
"Incentive Compensation" shall mean the performance based compensation
that the Corporation shall be obligated to pay to certain employees of the
Corporation pursuant to their employment agreements.
"Issue Date" shall mean the first date on which Series B Preferred Stock
is issued and sold.
"Junior Shares" shall have the meaning set forth in Section 3.
"Liquidation Preference" means $25.00 per share of Series B Preferred
Stock, plus accumulated and unpaid distributions (whether or not earned or
declared) thereon.
"Net Income" means, at any date of determination, the net income of the
Corporation determined in accordance with current tax law before the total
Incentive Compensation paid to employees of the Corporation pursuant to their
respective employment agreements, the deduction for dividends paid, before any
amortization of the Termination Fee paid Imperial Credit Advisors, Inc. and any
net operating loss deductions arising from losses in prior periods.
"Non-Electing Share" shall have the meaning set forth in subsection (d) of
Section 8.
"Ownership Limitation" means the limitation on ownership of the
Corporation's shares (or deemed ownership by virtue of the attribution
provisions of the Code) set forth in Article VII, Section 7.1 of the Charter.
"Parity Shares" shall have the meaning set forth in Section 3.
"Person" shall mean an individual, corporation, partnership, estate, trust
(including a trust qualified under Section 401(a) or 501(c)(17) of the Code), a
portion of a trust permanently set aside for or to be used exclusively for the
purposes described in Section 642(c) of the Code, association, private
foundation within the meaning of Section 509(a) of the Code, joint stock company
or other entity, and also includes a group as that term is used for purposes of
Section 13(d)(3) of the Securities Exchange Act of 1934, as amended.
"Plan Asset Regulation" means the plan asset regulation promulgated by the
Department of Labor under ERISA at 29 C.F.R. 2510.3-101.
"Plan Assets" means "plan assets" as defined in the Plan Asset Regulation.
"Preferred Stock" shall mean preferred stock, $.01 par value per share, of
the Corporation.
"Record Date" shall have the meaning set forth in Section 4.
"Redemption Price" shall equal $25.00 per share of Series B Preferred
Stock, plus dividends accumulated and unpaid to the redemption date (whether or
not declared) without interest, or in the case of redemption pursuant to
subsection (f) of Section 5, such other amount referred to therein.
"REIT" shall mean a real estate investment trust under Section 856 of the
Code.
"Return on Equity" means return calculated for any quarter by dividing the
Corporation's Net Income for such quarter by the Corporation's Average Net Worth
for such quarter.
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"Series B Holder" means a holder of Series B Preferred Stock.
"Series B Preferred Stock" shall mean the Corporation's Series B 10.5%
Cumulative Convertible Preferred Stock, $.01 par value per share, liquidation
preference $25.00 per share.
"Series B Preferred Stock Redemption Date" shall have the meaning set
forth in subsection (g) of Section 5.
"Set apart for payment" shall be deemed to include, without any action
other than the following, the recording by the Corporation in its accounting
ledgers of any accounting or bookkeeping entry which indicates, pursuant to a
declaration of distributions by the Board of Directors, the allocation of funds
to be paid on any class or series of shares; provided, however, that if any
funds for any class or series of Junior Shares or any Parity Shares are placed
in a separate account of the Corporation or delivered to a disbursing, paying or
other similar agent, then "set apart for payment" with respect to the Series B
Preferred Stock shall mean placing such funds in a separate account or
delivering such funds to a disbursing, paying or other similar agent.
"Shares-in-Trust" means shares of the Corporation transferred as set forth
in Article VII, Subsection (b) of Section 7.2.1of the Charter.
"Ten Year Average Yield" means the average yield to maturity for actively
traded marketable U.S. Treasury fixed interest rate securities (adjusted to
constant maturities of 10 years).
"Ten Year U.S. Treasury Rate" for a quarterly period shall mean the
arithmetic average of the weekly per annum Ten Year Average Yields published by
the Federal Reserve Board during such quarter. In the event that the Federal
Reserve Board does not publish a weekly per annum Ten Year Average Yield during
any week in a quarter, then the Ten Year U.S. Treasury Rate for such week shall
be the weekly per annum Ten Year Average Yields published by any Federal Reserve
Bank or by any U.S. Government department or agency selected by the Corporation
for such week. In the event that the Corporation determines in good faith that
for any reason the Corporation cannot determine the Ten Year U.S. Treasury Rate
for any quarter as provided above, then the Ten Year U.S. Treasury Rate for such
quarter shall be the arithmetic average of the per annum average yields to
maturity based upon the daily closing bids during such quarter for each of the
issues of actively traded marketable U.S. Treasury fixed interest rate
securities (other than securities which can, at the option of the holder, be
surrendered at face value in payment of any federal estate tax) with a final
maturity date not less than eight nor more than 12 years from the date of each
such quotation, as chosen and for each business day (or less frequently if daily
quotations shall not be generally available) in each such quarterly period in
New York City to the Corporation by at least three recognized dealers in U.S.
Government securities selected by the Corporation.
"Trading Day" shall mean any day on which the securities in question are
traded on the AMEX, or if such securities are not listed or admitted for trading
on the AMEX, on the principal national securities exchange on which such
securities are listed or admitted, or if not listed or admitted for trading on
any national securities exchange, on the Nasdaq National Market, or if such
securities are not quoted on such Nasdaq National Market, in the applicable
securities market in which the securities are traded.
"Transaction" shall have the meaning set forth in subsection (d) of
Section 7.
"Transfer Agent" means Boston Equiserve, L.P., Boston, Massachusetts or
such other agent or agents of the Corporation as may be designated by the Board
of Directors or its designee as the transfer agent for the Series B Preferred
Stock.
"Triggering Event" means any one or more of the following events (whatever
the reason and whether it shall be voluntary or involuntary or effected by
operation of law or pursuant to any judgment, decree or order of any court, or
any order, rule or regulation of any administrative or governmental body): (i)
the failure of the Common Stock to be
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listed on AMEX, the New York Stock Exchange or the Nasdaq National Market System
for a period of three (3) consecutive Trading Days; (ii) any Common Stock issued
upon conversion of Series B Preferred Stock, as a distribution in respect
thereof, or upon redemption thereof is not, at the time certificates
representing such shares are delivered, listed on each national securities
exchange or quotation system upon which the Common Stock is then listed; (iii)
the Corporation shall fail for any reason to deliver certificates representing
shares of Common Stock required to be issued in lieu of cash dividends on any
Distribution Payment Date within the ten (10) days immediately following such
Distribution Payment Date; or (iv) the occurrence of any Change of Control
Transaction where the aggregate consideration per share of Common Stock, valued
(if all or any portion of the consideration is in the form of securities rather
than cash) at the average closing price for such securities as reported by the
principal stock exchange or over-the-counter trading market where such
securities are listed for a period of twenty (20) Trading Days immediately
following the Change of Control Transaction, in connection therewith is less
than 110% of the Conversion Price as in effect on the date thereof.
"25% Threshold" means ownership by Benefit Plan Investors, in the
aggregate, of 25% or more of the value of any class of equity interest in the
Corporation (calculated by excluding the value of any interest held by any
person, other than a Benefit Plan Investor, who has discretionary authority or
control with respect to the assets of the Corporation or any person who provides
investment advice to the Corporation for a fee (direct or indirect) with respect
to such assets, or any affiliate of such person).
"Underlying Shares" means, collectively, the shares of Common Stock into
which any shares of Series B Preferred Stock are convertible and the shares of
Common Stock issuable upon payment of distributions thereon in accordance with
the terms hereof.
Section 2. Designation and Amount. There shall be a series of Preferred Stock
that shall be designated as "Series B 10.5% Cumulative Convertible
Preferred Stock" and the number of shares constituting such series
shall be 1,200,000. Such number of shares may be increased or
decreased by resolution of the Board of Directors, subject to the
terms of Section 7; provided, however, that no decrease shall reduce
the number of shares of Series B Preferred Stock to less than the
number of shares then issued and outstanding plus the number of
shares issuable upon exercise of outstanding rights, options or
warrants or upon conversion of outstanding securities issued by the
Corporation.
Section 3. Ranking. In respect of rights to receive distributions and to
participate in distributions or payments in the event of any
liquidation, dissolution or winding up of the Corporation, the
Series B Preferred Stock shall rank pari passu with any other shares
of preferred stock of the Corporation that the Board of Directors of
the Corporation shall designate as ranking pari passu (the "Parity
Shares"), and will rank senior to the Common Stock, the Series A
Junior Participating Preferred Stock and any other class or series
of shares of the Corporation that the Board of Directors has not
designated as ranking senior to or pari passu with the Series B
Preferred Stock (collectively, the "Junior Shares").
Section 4. Dividends and Distributions.
(a) Subject to the prior and superior rights of the holders of any
shares of any series of Preferred Stock ranking prior and
superior to the Series B Preferred Stock with respect to
dividends, the holders of the then outstanding shares of
Series B Preferred Stock shall be entitled to receive, when,
as and if authorized and declared by the Board of Directors
out of any funds legally available therefor cumulative
dividends in an amount per share equal to the greater of (1)
$0.65625 per quarter (equal to a rate of 10.5% of the $25.00
liquidation preference (the "Liquidation Preference") per
annum) or (2) the Dividend Ratchet Amount. If for any reason
the Corporation elects not to pay cash dividends on any
quarterly Distribution Payment Date, the Corporation shall pay
such dividends by issuing on such Distribution Payment Date,
as a stock dividend on the then outstanding shares of Series B
Preferred
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Stock, the number of shares of Common Stock equal to 100% of
the cash dividend accumulated on such Distribution Payment
Date, divided by the average closing sales price of the Common
Stock as reported by the principal stock exchange or
over-the-counter trading market where the Common Stock is
listed for the twenty (20) Trading Days prior to the Business
Day that immediately precedes the Distribution Payment Date.
Quarterly dividends on the Series B Preferred Stock are
payable as authorized by the Board of Directors, or if not
authorized, on the fourth Tuesday of January, April, July and
October of each year, commencing on or about April 27, 1999
(each such day being hereinafter called a "Distribution
Payment Date" and each calendar quarter immediately preceding
a Distribution Payment Date being hereinafter called the
"Distribution Period" corresponding to such Distribution
Payment Date), with respect to each Distribution Period, to
stockholders of record of the Series B Preferred Stock as they
appear on the stock transfer records of the Corporation at the
close of business on the dividend record dates authorized by
the Board of Directors, or if none are authorized, on the last
Friday of December, March, June and September (each, a "Record
Date"). The amount of any distribution payable for the initial
Distribution Period and for any other Distribution Period
greater or less than a full calendar quarter shall be prorated
and computed on the basis of a 360-day year of twelve 30-day
months. Distributions on each share of Series B Preferred
Stock shall accumulate from and including the date of original
issuance thereof, whether or not (1) distributions on such
shares are earned or declared or (2) on any Distribution
Payment Date there shall be funds legally available for the
payment of distributions. Distributions paid on the Series B
Preferred Stock in an amount less than the total amount of
such distributions at the time accumulated and payable on such
shares shall be allocated pro rata on a per share basis among
all such shares of Series B Preferred Stock at the time
outstanding. Distributions on account of any arrearage for any
past Distribution Periods may be declared and paid at any
time, without reference to any regular distribution, as may be
fixed by the Board of Directors.
The amount of any distributions accumulated on any shares of Series
B Preferred Stock at any Distribution Payment Date shall be the
amount of any unpaid distributions accumulated thereon through and
during such Distribution Period, to and including such Distribution
Payment Date, whether or not earned or declared, and the amount of
distributions accumulated on any shares of Series B Preferred Stock
at any date other than a Distribution Payment Date shall be equal to
the sum of the amount of any unpaid distributions accumulated
thereon, to and including the last preceding Distribution Payment
Date, whether or not earned or declared. Accumulated but unpaid
distributions will not bear interest and the holders of the Series B
Preferred Stock will not be entitled to any distributions in excess
of full cumulative distributions as described herein.
If any shares of Series B Preferred Stock are outstanding, no full
distributions shall be declared or paid or set apart for payment on
any other class or series of Parity Shares or Junior Shares for any
period unless full cumulative distributions on the Series B
Preferred Stock have been declared and paid or declared and a sum
sufficient for the payment thereof has been set apart for payment on
the Series B Preferred Stock for all past distribution periods and
the then current distribution period. If distributions are not paid
in full, or not declared in full and a sum sufficient for such full
payment is not set apart for payment thereof, upon the Series B
Preferred Stock and any class or series of Parity Shares, no
distributions may be paid on Junior Shares and all distributions
declared upon Series B Preferred Stock and upon any other class or
series of Parity Shares shall be paid or declared pro rata so that
in all cases the amount of distributions paid or declared per share
on the Series B Preferred Stock and Parity Shares shall bear to each
other the same ratio that accumulated distributions per share,
including distributions accumulated or in arrears, if any, on the
Series B Preferred Stock and Parity Shares bear to each other.
Except as provided in the preceding sentence, unless full cumulative
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distributions on the Series B Preferred Stock have been paid or
declared and a sum sufficient for such full payment set apart for
payment for all past distribution periods and the then current
distribution period, no distributions (other than distributions in
shares of Common Stock or in any other Junior Shares) shall be
declared or paid or set apart for payment or other distribution upon
the Corporation's Common Stock, or, except as provided above, on any
other Junior Shares or Parity Shares, nor shall any Common Stock or
any other Junior Shares or Parity Shares be redeemed, purchased or
otherwise acquired for any consideration (or any payment made to or
available for a sinking fund for the redemption of any such shares)
by the Corporation or any subsidiary of the Corporation (except in
connection with a redemption or purchase or other acquisition of
Common Stock made for purposes of an employee incentive or benefit
plan, a conversion into or exchange for Junior Shares or redemptions
for the purpose of preserving the Corporation's qualification as a
REIT). Any distribution payment made on the Series B Preferred Stock
shall first be credited against the earliest accumulated but unpaid
distribution due with respect to such shares which remains payable.
Holders of the Series B Preferred Stock shall not be entitled to any
distributions, whether payable in cash, property or shares, in
excess of full accumulated distributions as herein provided. No
interest or sum of money in lieu of interest shall be payable in
respect of any distribution payment or payments on the Series B
Preferred Stock that may be in arrears.
If any shares of Series B Preferred Stock are outstanding, the
Corporation shall not declare or pay or set apart for payment any
cash dividend in respect of any Junior Shares during any
Distribution Payment Period unless full cumulative distributions on
the Series B Preferred Stock are paid in the same form (i.e., cash,
Common Stock or any combination thereof) for such Distribution
Payment Period.
Except as provided in these Articles Supplementary, the Series B
Preferred Stock shall not be entitled to participate in the earnings
or assets of the Corporation.
Section 5. Redemption.
(a) Subject to subsection (c) of this Section 5, the Shares will
be redeemable at the Redemption Price by the Corporation at
any time between the second anniversary of the date of the
first issuance of Series B Preferred Stock and the fifth
anniversary of the date of the first issuance of Series B
Preferred Stock, if the closing sales price of the Common
Stock as reported by the principal stock exchange or
over-the-counter trading market where the Common Stock is
listed averages in excess of 150% of the Conversion Price for
a period of at least 20 consecutive Trading Days ending within
30 days prior to the notice of redemption, payable at the
Corporation's option in Common Stock or cash, as set forth in
subsection (c) of this Section 5.
(b) The Shares are redeemable at any time at the Redemption Price
the Board of Directors deems it necessary to maintain the
Corporation's status as a REIT or to prevent the Corporation's
assets from being deemed "plan assets" under the Plan Asset
Regulation, pursuant to Section 9, payable at the
Corporation's option in Common Stock or cash, as set forth in
subsection (c) of this Section 5.
(c) On and after the fifth anniversary of the date of the first
issuance of Series B Preferred Stock and upon giving of notice
as provided below, the Series B Preferred Stock may be
redeemed at the option of the Corporation, in whole or from
time to time in part, at the Redemption Price, payable at the
Corporation's option in (1) Common Stock, equal in number to
the Redemption Price divided by the average of the closing
sales price of the Common Stock as reported by the principal
stock exchange or over-the-counter trading market for the
twenty
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(20) Trading Days prior to the Business Day that immediately
precedes the date fixed for redemption, or (2) cash; provided,
however, that the Corporation may redeem shares of Series B
Preferred Stock pursuant to subsection (1) of this subsection
(c) only if the closing sales price of the Common Stock as
reported by the principal stock exchange or over-the-counter
trading market for the twenty (20) Trading Days prior to the
Business Day that immediately precedes the date fixed for
redemption, exceeds the Conversion Price in effect on the
Business Day that immediately precedes the date fixed for
redemption . Fractional shares will not be issued upon
redemption of the Series B Preferred Stock, but, in lieu
thereof, the Corporation will pay a cash adjustment based on
the average of the closing prices of the Common Stock on the
twenty (20) Trading Days prior to the business day immediately
preceding the date fixed for redemption.
(d) Upon the occurrence of a Triggering Event, each Series B
Holder shall (in addition to all other rights it may have
hereunder or under applicable law), have the right,
exercisable at the sole option of such Series B Holder, to
require the Corporation to redeem all or a portion of the
Series B Preferred Stock then held by such Series B Holder for
an amount in cash equal to the Redemption Price for each share
of Series B Preferred Stock then held by such Series B Holder.
For purposes of this Section, a share of Series B Preferred
Stock is outstanding until such date as the Series B Holder
shall have received Underlying Shares upon a conversion (or
attempted conversion) thereof.
(e) If fewer than all of the outstanding shares of Series B
Preferred Stock is to be redeemed, the shares to be redeemed
will be determined pro rata or by lot or in such other manner
as prescribed by the Board of Directors in its sole
discretion. In the event that such redemption is to be by lot,
if as a result of such redemption any holder of Series B
Preferred Stock would own shares in excess of the Ownership
Limitation, because such holder's shares of Series B Preferred
Stock were not redeemed, or were only redeemed in part, then,
except in certain instances, the Corporation will redeem the
requisite number of shares of Series B Preferred Stock of such
holder such that he will not own shares in excess of the
Ownership Limitation subsequent to such redemption. A new
certificate shall be issued representing any unredeemed Series
B Preferred Stock without cost to the holder thereof.
(f) At any time prior to such time, if ever, as the Series B
Preferred Stock qualifies as a "publicly offered security"
under the Plan Asset Regulation, or qualifies for another
exception from the "look-through" rule (i.e., the provisions
of paragraph (a)(2) of the Plan Asset Regulation), if the
Corporation determines that, as a result of transfers,
conversions or otherwise, Benefit Plan Investors own 25% or
more of the aggregate number of outstanding shares of Series B
Preferred Stock (excluding for this purpose any shares held by
persons exercising investment management authority over the
assets of the Corporation or providing investment advice for a
fee with respect to such assets and any affiliates of such
persons), the Corporation will have the right to cause any
number of Series B Preferred Stock that are held by Benefit
Plan Investors to be redeemed so that following such
redemption Benefit Plan Investors own less than 25% of the
outstanding Series B Preferred Stock (but in no event may such
redemptions reduce Benefit Plan Investor ownership to less
than 20% of the Series B Preferred Stock) (excluding for this
purpose any shares held by persons exercising investment
management authority over the assets of the Corporation or
providing investment advice for a fee with respect to such
assets and any affiliates of such persons). Any such
redemption will follow the redemption procedures set forth
herein, except that the Redemption Date may be fewer than 30
days after the first notice of redemption to the extent
necessary to prevent the Corporation's assets from being
deemed Plan Assets and the Redemption Price shall be the Fair
Market Value of such Series B
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Preferred Stock. If fewer than all the outstanding shares of
Series B Preferred Stock that are held by Benefit Plan
Investors are to be redeemed, the number of Series B Preferred
Stock to be redeemed will be determined by the Board of
Directors and such shares will be redeemed on a pro-rata basis
from the holders of such shares that are Benefit Plan
Investors in proportion to the number of Series B Preferred
Stock held by such holders or by any other method as may be
determined by the Board of Directors in its sole discretion.
(g) Notice of any redemption will be given (1) if greater than
fifty (50) holders own the Series B Preferred Stock, by
publication in a newspaper of general circulation in the City
of New York, such publication to be made once a week for two
successive weeks commencing not less than 30 nor more than 60
days prior to the date fixed for redemption; or (2) if fifty
(50) or fewer holders own the Series B Preferred Stock, by
mailing of a similar notice by the Corporation, postage
prepaid, not less than 30 nor more than 60 days prior to the
redemption date, addressed to the respective holders of record
of the Series B Preferred Stock to be redeemed at their
respective addresses as they appear on the stock transfer
records of the Corporation and the Company shall issue a press
release related to the redemption at the time of the mailing.
The notice provided shall state the Corporation's election to
redeem such shares, stating (1) the date fixed for redemption
thereof (the "Series B Preferred Stock Redemption Date"), (2)
the Redemption Price, (3) the number of shares to be redeemed
(and, if fewer than all the shares of Series B Preferred Stock
are to be redeemed, the number of shares to be redeemed from
such holder), (4) the place(s) where the Series B Preferred
Stock certificates are to be surrendered for payment, (5) that
distributions on the Series B Preferred Stock will cease to
accumulate on the specified redemption date, (6) the date on
which such holder's conversion rights as to the Series B
Preferred Stock shall terminate and (7) whether the Redemption
Price will be paid in cash or shares of Common Stock.
(h) On or after the Series B Preferred Stock Redemption Date, or
in connection with a redemption under Section 5(d), each
holder of Series B Preferred Stock to be redeemed must present
and surrender his Series B Preferred Stock certificate(s) to
the Corporation at the place designated in such notice or, in
the case of a redemption under Section 5(d), at [insert place
for notice to the Corporation], and thereupon the Redemption
Price of such shares will be paid to or on the order of the
person whose name appears on such Series B Preferred Stock
certificate(s) as the owner thereof and each such Series B
Preferred Stock certificate(s) surrendered will be cancelled.
From and after the Series B Preferred Stock Redemption Date
(unless the Corporation defaults in payment of the redemption
price, or such other time as such certificates are delivered
(in the case of a redemption under Section 5(d)), all
distributions on the Series B Preferred Stock designated for
redemption will cease to accumulate and all rights of the
holders thereof (including conversion rights), except the
right to receive the redemption price thereof (including all
accumulated and unpaid distributions up to the Series B
Preferred Stock Redemption Date), will cease and terminate,
and such shares will not thereafter be transferred (except
with the consent of the Corporation) in the stock transfer
records of the Corporation, and such shares shall not be
deemed to be outstanding for any purpose whatsoever. At its
election, the Corporation, prior to the Series B Preferred
Stock Redemption Date, may irrevocably deposit the Redemption
Price of the Series B Preferred Stock so called for redemption
in trust for the holders thereof with a bank or trust company,
in which case such notice to holders of the Series B Preferred
Stock to be redeemed will (1) state the date of such deposit,
(2) specify the office of such bank or trust company as the
place of payment of the Redemption Price and (3) call upon
such holders to surrender the Series B Preferred Stock
certificates representing such shares at such place on or
about the date fixed in such redemption notice (which may not
be later than the Series B Preferred Stock Redemption Date)
against payment of the Redemption
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Price. Any monies so deposited which remain unclaimed by the
holders of the Series B Preferred Stock at the end of two
years after the Series B Preferred Stock Redemption Date will
be returned by such bank or trust company to the Corporation.
(i) Notwithstanding the foregoing, unless full cumulative
distributions on all outstanding Series B Preferred Stock for
all past Distribution Periods and the then current
Distribution Period have been paid, or declared and a sum
sufficient for the payment thereof set apart for payment, (1)
no Series B Preferred Stock shall be redeemed under
subsections (a), (b) or (c) of Section 5 unless all
outstanding shares of Series B Preferred Stock are
simultaneously redeemed; provided, however, that the foregoing
shall not prevent the purchase or acquisition of Series B
Preferred Stock (A) pursuant to subsection (f) of Section 5
and Section 9 or (B) pursuant to a purchase or exchange offer
made on the same terms to holders of all outstanding Series B
Preferred Stock, and (2) the Corporation shall not purchase or
otherwise acquire directly or indirectly any Series B
Preferred Stock (except by conversion into or exchange for
shares of the Corporation ranking junior to the Series B
Preferred Stock as to distribution rights and liquidation
preference).
(j) The holders of Series B Preferred Stock at the close of
business on a Record Date will be entitled to receive the
distribution payable with respect to such Series B Preferred
Stock on the corresponding Distribution Payment Date
notwithstanding the redemption thereof between such Record
Date and the corresponding Distribution Payment Date or the
Corporation's default in the payment of the distribution due.
Except as provided above, the Corporation will make no payment
or allowance for unpaid distributions, whether or not in
arrears, on Series B Preferred Stock which have been called
for redemption.
(k) The Corporation covenants that any Common Stock issued upon
redemption of the Series B Preferred Stock shall be validly
issued, fully paid and nonassessable. The Corporation shall
use its reasonable best efforts to list the Common Stock
required to be delivered upon redemption of the Series B
Preferred Stock, prior to such delivery, upon each national
securities exchange, if any, upon which the shares of
outstanding Common Stock are listed at the time of such
delivery.
(l) The Series B Preferred Stock has no stated maturity date and
is not subject to any sinking fund or mandatory redemption
provisions, except as provided in subsection (d) of Section 5.
Section 6. Liquidation Preference.
(a) Upon the voluntary or involuntary dissolution, liquidation or
winding up of the Corporation, the holders of the Series B
Preferred Stock then outstanding shall be entitled to receive
and to be paid out of the assets of the Corporation legally
available for distribution to its stockholders, before any
payment or distribution shall be made on any Junior Shares,
the amount of $25.00 per share of Series B Preferred Stock,
plus accumulated and unpaid distributions (whether or not
earned or declared) thereon.
(b) After the payment to the holders of the Series B Preferred
Stock of the full preferential amounts provided for in this
Section 6, the holders of the Series B Preferred Stock as such
shall have no right or claim to any of the remaining assets of
the Corporation.
(c) If, upon any voluntary or involuntary dissolution,
liquidation, or winding up of the Corporation, the preference
amounts payable with respect to the Series B Preferred Stock
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and any Parity Shares are not paid in full, no payment will be
made to any holder of Junior Shares and the holders of the
Series B Preferred Stock and of such Parity Shares will share
ratably in any such distribution of assets of the Corporation
in proportion to the full respective preferential amounts
provided for in this Section 6 to which they are entitled.
(d) None of (1) the sale or transfer of all or substantially all
the property or business of the Corporation; (2) a statutory
share exchange by the Corporation; or (3) the merger or
consolidation of the Corporation into or with any other entity
or the merger or consolidation of any other entity into or
with the Corporation, shall be deemed to be a dissolution,
liquidation or winding up, voluntary or involuntary, for the
purposes of this Section 6.
(e) In determining whether a distribution (other than upon
voluntary or involuntary liquidation), by dividend, redemption
or other acquisition of shares of the Corporation or
otherwise, is permitted under Maryland law, amounts that would
be needed, if the Corporation were to be dissolved at the time
of the distribution, to satisfy the preferential rights upon
dissolution of holders of Series B Preferred Stock will not be
added to the Corporation's total liabilities.
Section 7. Voting Rights.
Except as provided below, the holders of the Series B Preferred Stock
shall not be entitled to vote at any meeting of the stockholders for any purpose
or otherwise to participate in any action taken by the Corporation or the
stockholders thereof, or to receive notice of any meeting of stockholders.
(a) In any matter in which the holders of Series B Preferred Stock
are entitled to vote (as expressly provided herein), including
any action by written consent, each share of Series B
Preferred Stock shall be entitled to one vote.
(b) As long as any Series B Preferred Stock remains outstanding,
in addition to any other vote or consent required by law or
the Charter, the Corporation will not, without the affirmative
vote or consent of the holders of at least four-fifths of the
shares of Series B Preferred Stock outstanding at the time,
given in person or by proxy, either in writing or at a meeting
(such series voting separately as a class), (1) authorize or
create, or increase the authorized or issued amount of any
class or series of shares ranking prior or senior to the
Series B Preferred Stock with respect to the payment of
distributions or the distribution of assets upon liquidation,
dissolution or winding up, or reclassify any authorized shares
of the Corporation into such shares, or create, authorize or
issue any obligation or security convertible into or
evidencing the right to purchase any such shares; (2) amend,
alter or repeal the provisions of these Articles Supplementary
for the Series B Preferred Stock; or (3) amend, alter or
repeal the provisions of the Corporation's By-laws, or Charter
in connection with any merger or consolidation, or otherwise
(an "Event"), so as to materially and adversely affect any
right, preference, privilege or voting power of the Series B
Preferred Stock (as determined by the Board of Directors in
good faith); provided, however, with respect to the occurrence
of any of the Events set forth in (3) above, so long as the
Series B Preferred Stock (or shares into which the Series B
Preferred Stock have been converted in any successor entity to
the Corporation) remains outstanding or, if the Corporation is
not the surviving entity, is converted into a security with
substantially identical rights, preferences, privileges and
voting power, then the occurrence of any such Event shall not
be deemed to materially and adversely affect such rights,
preferences, privileges or voting power of the Series B
Preferred Stock; and provided further that (x) any increase in
the amount of the authorized Preferred Stock or the
designation or issuance of any additional Series B Preferred
Stock or Parity Shares, or (y) any increase in the amount of
authorized Series B
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<PAGE>
Preferred Stock or any other Preferred Stock, in each case
ranking on a parity with or junior to the Series B Preferred
Stock with respect to payment of distributions or the
distribution of assets upon liquidation, dissolution or
winding up, shall not be deemed to materially and adversely
affect such rights, preferences, privileges or voting powers.
The foregoing voting provisions will not apply if, at or prior to the time
when the act with respect to which such vote would otherwise be required shall
be effected, all outstanding Series B Preferred Stock shall have been redeemed
or called for redemption and sufficient Common Stock has been reserved to effect
such redemption or sufficient funds to effect such redemption shall have been
deposited in accordance with Section 5.
Section 8. Conversion.
Holders of Series B Preferred Stock shall have the right to convert all or
a portion of such shares into Common Stock, as follows:
(a) Subject to and upon compliance with the provisions of this
Section 8, a holder of Series B Preferred Stock shall have the
right, at his option, at any time to convert such shares into
the number of fully paid and nonassessable shares of Common
Stock obtained by dividing the aggregate Liquidation
Preference of such shares by the Conversion Price (as in
effect at the time and on the date provided for in the last
paragraph of subsection (b) of this Section 8) by surrendering
such shares to be converted, such surrender to be made in the
manner provided in subsection (b) of this Section 8; provided,
however, that the right to convert shares called for
redemption pursuant to Section 5 shall terminate at the close
of business on the Series B Preferred Stock Redemption Date
fixed for such redemption, unless the Corporation shall
default in making payment of any amounts payable upon such
redemption under Section 5 hereof.
(b) In order to exercise the conversion right, the holder of
Series B Preferred Stock to be converted shall surrender the
certificate evidencing such shares, duly endorsed or assigned
to the Corporation or in blank, at the office of the Transfer
Agent, accompanied by written notice to the Corporation that
the holder thereof elects to convert such Series B Preferred
Stock. Unless the shares issuable on conversion are to be
issued in the same name as the name in which such shares of
Series B Preferred Stock are registered, each share
surrendered for conversion shall be accompanied by instruments
of transfer, in form satisfactory to the Corporation, duly
executed by the holder or such holder's duly authorized agent
and an amount sufficient to pay any transfer or similar tax
(or evidence reasonably satisfactory to the Corporation
demonstrating that such taxes have been paid).
Holders of Series B Preferred Stock at the close of business on a
Record Date shall be entitled to receive the distribution payable on
such shares on the corresponding Distribution Payment Date
notwithstanding the conversion thereof following such Record Date
and prior to such Distribution Payment Date. However, Series B
Preferred Stock surrendered for conversion during the period between
the close of business on any Record Date and the opening of business
on the corresponding Distribution Payment Date (except shares
converted after the issuance of a notice of redemption with respect
to a Series B Preferred Stock Redemption Date during such period or
coinciding with such Distribution Payment Date, such Series B
Preferred Stock being entitled to such distribution on the
Distribution Payment Date) must be accompanied by payment of an
amount equal to the distribution payable on such shares on such
Distribution Payment Date. A holder of Series B Preferred Stock on a
Record Date who (or whose transferee) tenders any such shares for
conversion into Common Stock on such Distribution Payment Date will
receive the distribution payable by the Corporation on such Series B
Preferred Stock on such date, and the converting holder need not
include payment of the
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<PAGE>
amount of such distribution upon surrender of Series B Preferred
Stock for conversion. The Corporation shall make further payment or
allowance for, and a converting holder shall be entitled to, unpaid
distributions in arrears (excluding the then-current quarter) on
converted shares and for distributions on the Common Stock issued
upon such conversion.
As promptly as practicable after the surrender of certificates for
Series B Preferred Stock as aforesaid, the Corporation shall issue
and shall deliver at such office to such holder, or on his written
order, a certificate or certificates for the number of full shares
of Common Stock issuable upon the conversion of such shares in
accordance with the provisions of this Section 8, and any fractional
interest in respect of a share of Common Stock arising upon such
conversion shall be settled as provided in subsection (c) of this
Section 8. Each conversion shall be deemed to have been effected
immediately prior to the close of business on the date on which the
certificates for Series B Preferred Stock shall have been
surrendered and such notice (and if applicable, payment of an amount
equal to the distribution payable on such shares) received by the
Corporation as aforesaid, and the person or persons in whose name or
names any certificate or certificates for Common Stock shall be
issuable upon such conversion shall be deemed to have become the
holder or holders of record of the shares represented thereby at
such time on such date, and such conversion shall be at the
Conversion Price in effect at such time and on such date, unless the
stock transfer books of the Corporation shall be closed on that
date, in which event such person or persons shall be deemed to have
become such holder or holders of record at the opening of business
on the next succeeding day on which such stock transfer books are
open, but such conversion shall be at the Conversion Price in effect
on the date on which such certificates for Series B Preferred Stock
have been surrendered and such notice received by the Corporation.
(c) No fractional shares or scrip representing fractions of Common
Stock shall be issued upon conversion of the Series B
Preferred Stock. Instead of any fractional interest in a share
of Common Stock that would otherwise be deliverable upon the
conversion of a share of Series B Preferred Stock, the
Corporation shall pay to the holder of such share an amount in
cash based upon the Current Market Price of Common Stock on
the Trading Day immediately preceding the date of conversion.
If more than one share of Series B Preferred Stock shall be
surrendered for conversion at one time by the same holder, the
number of shares of full Common Stock issuable upon conversion
thereof shall be computed on the basis of the aggregate number
of shares of Series B Preferred Stock so surrendered.
(d) The Conversion Price or the securities into which the Series B
Preferred Stock is convertible shall be adjusted from time to
time as follows:
(1) if the Corporation's annualized Return on Equity for the
six months ended June 30, 1999 (computed by multiplying
the Return on Equity for such period by two) is less
than the Ten Year U.S. Treasury Rate plus 200 basis
points, then the Conversion Price will be reduced to
$4.50 per share after August 15, 1999. Any adjustment
made pursuant to this subsection (d)(1) shall become
effective immediately after the opening of business on
August 16, 1999. If, prior to such date, the Conversion
Price is adjusted pursuant to any other paragraph of
this Section 8(d), the $4.50 price referenced in this
paragraph will be adjusted accordingly.
(2) if the Corporation shall be a party to any transaction
(including without limitation a merger, consolidation,
statutory share exchange, self tender offer for all or
substantially all of the Common Stock, sale of all or
substantially all of the Corporation's assets or
recapitalization of the Common Stock (each of the
foregoing being referred to herein as a "Transaction"),
in each case as a result of
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<PAGE>
which Common Stock shall be converted into the right to
receive shares, stock, securities or other property
(including cash or any combination thereof), each share
of Series B Preferred Stock which is not converted into
the right to receive shares, stock, securities or other
property in connection with such Transaction shall
thereafter be convertible into the kind and amount of
shares, stock, securities and other property (including
cash or any combination thereof) receivable upon the
consummation of such Transaction by a holder of that
number of Common Stock into which one share of Series B
Preferred Stock was convertible immediately prior to
such Transaction, assuming such holder of Common Stock
(1) is not a Person with which the Corporation
consolidated or into which the Corporation merged or
which merged into the Corporation or to which such sale
or transfer was made, as the case may be (a "Constituent
Person"), or an affiliate of a Constituent Person and
(2) failed to exercise his or her rights of election, if
any, as to the kind or amount of shares, stock,
securities and other property (including cash)
receivable upon consummation of such Transaction (each a
"Non-Electing Share") (provided that if the kind or
amount of shares, stock, securities and other property
(including cash) receivable upon consummation of such
Transaction by each Non-Electing Share is not the same
for each Non-Electing Share, then the kind and amount of
shares, stock, securities and other property (including
cash) receivable upon consummation of such Transaction
for each Non-Electing Share shall be deemed to be the
kind and amount so receivable per share by a plurality
of the Non-Electing Shares). The Corporation shall not
be a party to any Transaction unless the terms of such
Transaction are consistent with the provisions of this
subsection (d), and it shall not consent or agree to the
occurrence of any Transaction until the Corporation has
entered into an agreement with the successor or
purchasing entity, as the case may be, for the benefit
of the holders of the Series B Preferred Stock, that
will require such successor or purchasing entity, as the
case may be, to make provision in its certificate or
articles of incorporation or other constituent documents
to the end that the provisions of this subsection (d)
shall thereafter correspondingly be made applicable as
nearly as may reasonably be, in relation to any shares
of stock or other securities or property thereafter
deliverable upon conversion of the Series B Preferred
Stock. The provisions of this subsection (d) shall
similarly apply to successive Transactions.
(3) if the Corporation shall at any time or from time to
time after the initial issuance of the Series B
Preferred Stock effect a subdivision of the outstanding
Common Stock, the Conversion Price then in effect
immediately before that subdivision shall be
proportionately decreased; conversely, if the
Corporation shall at any time or from time to time after
the initial issuance of the Series B Preferred Stock
reduce the outstanding shares of Common Stock by
combination or otherwise, the Conversion Price then in
effect immediately before the combination shall be
proportionately increased. Any adjustment under this
subsection (d)(3) shall become effective at the close of
business on the date the subdivision or combination
becomes effective.
(4) if the Corporation at any time or from time to time
after the initial issuance of the Series B Preferred
Stock shall make or issue, or fix a record date for the
determination of holders of Common Stock or other
securities entitled to receive, a dividend or other
distribution payable in additional shares of Common
Stock, then and in each such event the Conversion Price
for the Series B Preferred Stock then in effect shall be
decreased as of the time of such issuance or, in the
event
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<PAGE>
such a record date shall have been fixed, as of the
close of business on such record date, by multiplying
the Conversion Price for the Series B Preferred Stock
then in effect by a fraction:
(a) the numerator of which shall be the total number
of shares of Common Stock issued and outstanding
immediately prior to the time of such issuance or
the close of business on such record date; and
(b) the denominator of which shall be the total number
of shares of Common Stock issued and outstanding
immediately prior to the time of such issuance or
the close of business on such record date, plus
the number of shares of Common Stock issuable in
payment of such dividend or distribution;
provided, however, if such record date shall have
been fixed and such dividend is not fully paid or
if such distribution is not fully made on the date
fixed therefor, the Conversion Price for the
Series B Preferred Stock shall be recomputed
accordingly as of the close of business on such
record date and thereafter the Conversion Price
for the Series B Preferred Stock shall be adjusted
pursuant to this subsection (d)(4)(b) as of the
time of actual payment of such dividends or
distributions.
(5) if the Corporation at any time or from time to time
after the initial issuance of the Series B Preferred
Stock shall make or issue, or fix a record date for the
determination of holders of Common Stock entitled to
receive, a dividend or other distribution payable in
securities of the Corporation other than shares of
Common Stock or securities of any other entity
(including a subsidiary of the Corporation) or other
property, then and in each such event provision shall be
made so that the holders of Series B Preferred Stock
shall receive upon conversion thereof in addition to the
number of shares of Common Stock receivable thereupon,
the amount of securities of the Corporation or such
other entity or other property that they would have
received had their Series B Preferred Stock been
converted into Common Stock on the date of such event
and had thereafter, during the period from the date of
such event to and including the conversion date,
retained such securities receivable by them as aforesaid
during such period giving application to all adjustments
called for during such period under this Section 8 with
respect to the rights of the holders of the Series B
Preferred Stock.
(6) If the Common Stock issuable upon the conversion of the
Series B Preferred Stock shall be changed into the same
or a different number of shares of any class or classes
of stock, whether by capital reorganization,
reclassification or otherwise (other than a subdivision
or combination of shares or stock dividend provided for
above, or a reorganization, merger, consolidation or
sale of assets provided for elsewhere in this Section
8), then and in each such event the holder of each share
of Series B Preferred Stock shall have the right
thereafter to convert such share into the kind and
amounts of shares of stock and other securities and
property receivable upon such reorganization,
reclassification or other change, by holders of the
number of shares of Common Stock into which such shares
of Series B Preferred Stock might have been converted
immediately prior to such reorganization,
reclassification or change, all subject to further
adjustment as provided herein.
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<PAGE>
(7) If and whenever on or after the original date of
issuance of shares of Series B Preferred Stock the
Corporation issues or sells, or in accordance with
subparagraph (b) of this subsection (d)(7) is deemed to
have issued or sold, any Junior Shares for a
consideration per share less than the Conversion Price
in effect immediately prior to the time of such issuance
or sale, then forthwith upon such issuance or sale the
Conversion Price will be reduced to an amount determined
by dividing (i) the sum of (A) the product derived by
multiplying the Conversion Price in effect immediately
prior to such issuance or sale by the number of shares
of Common Stock outstanding or deemed to be outstanding
immediately prior to such issuance or sale, plus (B) the
consideration, if any, received by the Corporation upon
such issuance or sale, by (ii) the number of shares of
Common Stock outstanding or deemed to be outstanding
immediately after such issuance or sale.
(a) For purposes of determining the adjusted
Conversion Price under subparagraph (a) of this
subsection (d)(7), the following will be
applicable:
(i) If the Corporation in any manner grants any
rights or options to subscribe for or to
purchase Junior Shares or any stock or other
securities convertible into or exchangeable
for Common Stock (such rights or options
being herein called "Options" and such
convertible or exchangeable stock or
securities being herein called "Convertible
Securities") and the price per share for
which Common Stock is issuable upon the
exercise of such Options or upon conversion
or exchange of such Convertible Securities
is less than the Conversion Price in effect
immediately prior to the time of the
granting of such Options, then the total
maximum number of Junior Shares issuable
upon the exercise of such Options or upon
conversion or exchange of the total maximum
amount of such Convertible Securities
issuable upon the exercise of such Options
will be deemed to be outstanding and to have
been issued and sold by the Corporation for
such price per share. For purposes of this
subparagraph (b), the "price per share for
which Junior Shares are issuable" will be
determined by dividing (A) the total amount,
if any, received or receivable by the
Corporation as consideration for the
granting of such Options, plus the minimum
aggregate amount of additional consideration
payable to the Corporation upon exercise of
all such Options, plus in the case of such
Options which relate to Convertible
Securities, the minimum aggregate amount of
additional consideration, if any, payable to
the Corporation upon the issuance or sale of
such Convertible Securities and the
conversion or exchange thereof, by (B) the
total maximum number of Junior Shares
issuable upon the exercise of Options or
upon the conversion or exchange of all such
Convertible Securities issuable upon the
exercise of such Options. No further
adjustment of the Conversion Price will be
made when Convertible Securities are
actually issued upon the exercise of such
options or when Junior Stock is actually
issued upon the exercise of such Options or
the conversion or exchange of such
Convertible Securities.
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<PAGE>
(ii) If the Corporation in any manner issues or
sells any Convertible Securities and the
price per share for which Junior Shares are
issuable upon such conversion or exchange is
less than the Conversion Price in effect
immediately prior to the time of such issue
or sale, then the maximum number of Junior
Shares issuable upon conversion or exchange
of such Convertible Securities will be
deemed to be outstanding and to have been
issued and sold by the Corporation for such
price per share. For the purposes of this
paragraph, the "price per share for which
Junior Shares are issuable" will be
determined by dividing (A) the total amount
received or receivable by the Corporation as
consideration for the issue or sale of such
Convertible Securities, plus the minimum
aggregate amount of additional
consideration, if any, payable to the
Corporation upon the conversion or exchange
thereof, by (B) the total maximum number of
Junior Shares issuable upon the conversion
or exchange of all such Convertible
Securities. No further adjustment of the
Conversion Price will be made when Junior
Shares are actually issued upon the
conversion or exchange of such Convertible
Securities, and if any such issuance or sale
of such Convertible Securities is made upon
exercise of any Options for which
adjustments of the Conversion Price had been
or are to be made pursuant to other
provisions of this Section 8, no further
adjustment of the Conversion Price will be
made by reason of such issue or sale.
(iii) If the purchase price provided for in any
Options, the additional consideration, if
any, payable upon the conversion or exchange
of any Convertible Securities, or the rate
at which any Convertible Securities are
convertible into or exchangeable for Junior
Shares change at any time, the Conversion
Price in effect at the time of such change
will be readjusted to the Conversion Price
which would have been in effect at such time
had such Options or Convertible Securities
still outstanding provided for such changed
purchase price, additional consideration or
changed conversion rate, as the case may be,
at the time initially granted, issued or
sold; provided that if such adjustment would
result in an increase of the Conversion
Price then in effect, such adjustment will
not be effective until 30 days after written
notice thereof has been given by the
Corporation to all holders of shares of
Series B Preferred Stock.
(iv) Upon the expiration of any Option or the
termination of any right to convert or
exchange any Convertible Security without
the exercise of any such Option or right,
the Conversion Price then in effect
hereunder will be adjusted to the Conversion
Price which would have been in effect at the
time of such expiration or termination had
such Option or Convertible Security, to the
extent outstanding immediately prior to such
expiration or termination, never been
issued.
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<PAGE>
(v) If any Junior Shares, Option or Convertible
Security is issued or sold or deemed to have
been issued or sold for cash, the
consideration received therefor will be
deemed to be the net amount received by the
Corporation therefor. In case any Junior
Shares, Options or Convertible Securities
are issued or sold for a consideration other
than cash, the amount of the consideration
other than cash received by the Corporation
will be the fair value of such
consideration, except where such
consideration consists of securities, in
which case the amount of consideration
received by the Corporation will be the
Current Market Price thereof as of the date
of receipt. If any Junior Share, Option or
Convertible Security is issued in connection
with any merger in which the Corporation is
the surviving corporation, the amount of
consideration therefor will be deemed to be
the fair value of such portion of the net
assets and business of the non-surviving
corporation as is attributable to such
Junior Shares, Options or Convertible
Securities, as the case may be. The fair
value of any consideration other than cash
and securities will be determined in good
faith by the Board of Directors of the
Corporation.
(vi) In case any Option is issued in connection
with the issue or sale of other securities
of the Corporation, together comprising one
integrated transaction in which no specific
consideration is allocated to such Option by
the parties thereto, the Option will be
deemed to have been issued without
consideration.
(vii) The number of Junior Shares outstanding at
any given time does not include shares owned
or held by or for the account of the
Corporation or any subsidiary, and the
disposition of any shares so owned or held
will be considered an issuance or sale of
Junior Shares.
(viii) If the Corporation takes a record of the
holders of Junior Shares (or any class
thereof) for the purpose of entitling them
(A) to receive a dividend or other
distribution payable in Junior Shares,
Options or in Convertible Securities or (B)
to subscribe for or purchase Junior Shares,
Options or Convertible Securities, then for
purposes of this Section 8 such record date
will be deemed to be the date of the
issuance or sale of the shares of Junior
Stock deemed to have been issued or sold
upon the declaration of such dividend or
upon the making of such other distribution
or the date of the granting of such right of
subscription or purchase, as the case may
be.
(ix) Anything herein to the contrary
notwithstanding, no adjustment will be made
to the Conversion Price by reason of (A) the
issuance of securities of the Corporation
upon conversion of shares of Series B
Preferred Stock, and (B) the issuance of any
shares of the Corporation's capital stock to
employees and directors of the Corporation
pursuant to options and warrants granted to
such employees and directors upon the
approval of the
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<PAGE>
Board of Directors of the Corporation, (C)
the issuance of any shares of the
Corporation's capital stock pursuant to any
employee plan, and (D) any issuances
pursuant to any of the Corporation's
dividend reinvestment plans.
(8) No adjustment in the Conversion Price shall be required
unless such adjustment would require a cumulative
increase or decrease of at least 1% in such price;
provided, however, that any adjustments that by reason
of this subsection (d)(8) are not required to be made
shall be carried forward and taken into account in any
subsequent adjustment until made; and provided, further,
that any adjustment shall be required and made in
accordance with the provisions of this Section 8 (other
than this subsection (d)(8)) not later than such time as
may be required in order to preserve the tax-free nature
of a distribution to the holders of Common Stock.
Notwithstanding any other provisions of this subsection
(d), the Corporation shall not be required to make any
adjustment to the Conversion Price for the issuance of
any shares of Common Stock pursuant to any plan
providing for the reinvestment of distributions or
interest payable on securities of the Corporation and
the investment of additional optional amounts in shares
of Common Stock under such plan. All calculations under
this Section 8 shall be made to the nearest cent (with
$.005 being rounded upward) or to the nearest one-tenth
of a share (with .05 of a share being rounded upward),as
the case may be.
(e) If:
(1) there shall be any reclassifications of the Common Stock
or any consolidation or merger to which the Corporation
is a party and for which approval of any stockholders of
the Corporation is required, or a statutory share
exchange involving the conversion or exchange of Common
Stock into securities or other property, or a self
tender offer by the Corporation for all or substantially
all of its outstanding Common Stock, or the sale or
transfer of all or substantially all of the assets of
the Corporation as an entity and for which approval of
any stockholder of the Corporation is required; or
(2) there shall occur the voluntary or involuntary
liquidation, dissolution or winding up of the
Corporation;
then the Corporation shall cause to be filed with the Transfer
Agent and shall cause to be mailed to the holders of the
Series B Preferred Stock at their addresses as shown on the
stock transfer records of the Corporation, as promptly as
possible, but at least 15 days prior to the applicable date
hereinafter specified, a notice stating the date on which such
reclassification, consolidation, merger, statutory share
exchange, sale, transfer, liquidation, dissolution or winding
up is expected to become effective, and the date as of which
it is expected that holders of Common Stock of record shall be
entitled to exchange their Common Stock for securities or
other property, if any, deliverable upon such
reclassification, consolidation, merger, statutory share
exchange, sale, transfer, liquidation, dissolution or winding
up. Failure to give or receive such notice or any defect
therein shall not affect the legality or validity of the
proceedings described in this Section 8.
(f) Whenever the Conversion Price is adjusted as herein provided,
the Corporation shall promptly file with the Transfer Agent an
officer's certificate setting forth the Conversion Price after
such adjustment and setting forth a brief statement of the
facts requiring such adjustment, which certificate shall be
conclusive evidence of the correctness of such
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<PAGE>
adjustment absent manifest error. Promptly after delivery of
such certificate, the Corporation shall prepare a notice of
such adjustment of the Conversion Price setting forth the
adjusted Conversion Price and the effective date on which such
adjustment becomes effective and shall mail such notice of
such adjustment of the Conversion Price to the holder of each
share of Series B Preferred Stock at such holder's last
address as shown on the share records of the Corporation.
(g) There shall be no adjustment of the Conversion Price in case
of the issuance of any shares of the Corporation in a
reorganization, acquisition or other similar transaction
except as specifically set forth in this Section 8. If any
action or transaction would require adjustment of the
Conversion Price pursuant to more than one subsection of this
Section 8, only one adjustment shall be made, and such
adjustment shall be the amount of adjustment that has the
highest absolute value.
(h) If the Corporation shall take any action affecting the Common
Stock, other than an action described in this Section 8, that
would materially and adversely affect the conversion rights of
the holders of the Series B Preferred Stock, the Conversion
Price for the Series B Preferred Stock may be reduced, to the
extent permitted by law, in such manner, and at such time, as
the Board of Directors, in its reasonable discretion, based in
part upon advice of independent financial and legal advisors,
may determine in good faith to be equitable in the
circumstances.
(i) The Corporation covenants that it will at all times reserve
and keep available, free from preemptive rights, out of the
aggregate of its authorized but unissued Common Stock, for the
purpose of effecting conversion of the Series B Preferred
Stock, the full number of shares of Common Stock deliverable
upon the conversion of all outstanding Series B Preferred
Stock not theretofore converted. For purposes of this
subsection (i), the number of shares of Common Stock that
shall be deliverable upon the conversion of all outstanding
Series B Preferred Stock shall be computed as if at the time
of computation all such outstanding shares were held by a
single holder.
The Corporation covenants that any Common Stock issued upon
conversion or redemption of, or as a distribution in respect of, the
Series B Preferred Stock shall be validly issued, fully paid and
nonassessable. Before taking any action that would cause an
adjustment reducing the Conversion Price below the then par value of
the Common Stock deliverable upon conversion of the Series B
Preferred Stock, the Corporation will take any action that, in the
opinion of its counsel, may be necessary in order that the
Corporation may validly and legally issue fully paid and
nonassessable Common Stock at such adjusted Conversion Price.
The Corporation shall use its reasonable best efforts to list the
Common Stock required to be delivered upon conversion of, and any
Common Stock issued upon redemption or as a distribution in respect
of, the Series B Preferred Stock, prior to such delivery, upon each
national securities exchange, if any, upon which the outstanding
Common Stock are listed at the time of such delivery.
The Corporation shall take any action necessary to ensure that any
shares of Common Stock issued upon conversion or redemption of, or
as a distribution in respect of, shares of Series B Preferred Stock
are freely tradeable and not subject to any resale restrictions
under the Act, or any applicable state securities or blue sky laws
(other than any shares of Common Stock which are held by an
"affiliate" (as defined in Rule 144 under the Act).
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<PAGE>
(j) The Corporation will pay any and all documentary stamp or
similar issue or transfer taxes payable in respect of the
issue or delivery of Common Stock or other securities or
property on conversion of the Series B Preferred Stock
pursuant hereto; provided, however, that the Corporation shall
not be required to pay any tax that may be payable in respect
of any transfer involved in the issue or delivery of Common
Stock or other securities or property in a name other than
that of the holder of the Series B Preferred Stock to be
converted, and no such issue or delivery shall be made unless
and until the person requesting such issue or delivery has
paid to the Corporation the amount of any such tax or has
established, to the reasonable satisfaction of the
Corporation, that such tax has been paid.
In addition to the foregoing adjustments, the Corporation shall be
entitled to make such reductions in the Conversion Price, in
addition to those required herein, as it in its discretion considers
to be advisable in order that any share distributions, subdivisions
of shares, reclassification or combination of shares, distribution
of rights, options, warrants to purchase shares or securities, or a
distribution of other assets (other than cash distributions) will
not be taxable or, if that is not possible, to diminish any income
taxes that are otherwise payable because of such event.
(k) In no event shall a Series B Holder be permitted to convert
shares of Series B Preferred Stock to the extent such
conversion would result in such Series B Holder beneficially
owning (as determined in accordance with Section 13(d) of the
Exchange Act and the rules thereunder) more than 4.999% of the
then issued and outstanding shares of Common Stock, including
shares issuable upon conversion of Series B Preferred Stock
held by such Series B Holder after application of this
paragraph. The provisions of this paragraph may be waived by a
Series B Holder (but only as to itself) upon not less than 75
days' prior notice to the Corporation, and the provisions of
this paragraph shall continue to apply until such 75th day (or
later, if stated in the notice of waiver). Each Series B
Holder shall have the sole authority and obligation to
determine whether the restriction contained in this Section
applies, and each conversion by a Series B Holder shall be
deemed to be accompanied by the representation that such
conversion is in accordance with the provisions of this
paragraph. No conversion in violation of this paragraph but
otherwise in accordance with the Charter shall affect the
status of the securities issued upon such conversion as
validly issued, fully paid and nonassessable.
Section 9. Ownership and Transfer Limitations.
(a) REIT-Related Restrictions. The Ownership and transfer of the
Series B Preferred Stock shall be restricted as provided in
the Charter.
(b) ERISA-Related Restrictions. No Benefit Plan Investor may
acquire Series B Preferred Stock without the Corporation's
prior written consent (which consent may be withheld in the
Corporation's sole and absolute discretion). Prior to the
Series B Preferred Stock qualifying as a "publicly-offered
security" or the availability of another exception to the
"look-through" rule (i.e., the provisions of paragraph (a)(2)
of the Plan Asset Regulation), transfers of Series B Preferred
Stock to Benefit Plan Investors that would increase aggregate
Benefit Plan Investor ownership of the Series B Preferred
Stock above the 25% Threshold will be void ab initio. In
addition, in the event that the aggregate number of Series B
Preferred Stock owned by Benefit Plan Investors, but for the
operation of this sentence, would meet or exceed the 25%
Threshold, (1) the Series B Preferred Stock held by Benefit
Plan Investors shall be deemed to be Shares-in-Trust,
pro-rata, to the extent necessary to reduce aggregate Benefit
Plan Investor ownership of the Series B Preferred Stock below
the 25% Threshold, and (2) such number of Series B Preferred
Stock (rounded up, in the case of each holder, to
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<PAGE>
the nearest whole share) shall be transferred automatically
and by operation of law to the Trust (as described in Article
VII of the Charter) to be held in accordance with this
subsection (b) of Section 9 and otherwise in accordance with
Article VII, of the Charter and (3) the Benefit Plan Investors
previously owning such Shares-in-Trust shall submit such
number of Series B Preferred Stock for registration in the
name of the Trust. Such transfer to a Trust and the
designation of Series B Preferred Stock as Shares-in-Trust
shall be effective as of the close of business on the business
day prior to the date of the event that otherwise would have
caused aggregate Benefit Plan Investor ownership of Series B
Preferred Stock to meet or exceed the 25% Threshold.
Prior to the discovery of the existence of the Trust, any transfer
of Series B Preferred Stock by a Benefit Plan Investor to a
non-Benefit Plan Investor shall reduce the number of Shares-in-Trust
on a one-for-one basis, and to that extent such shares shall cease
to be designated as Shares-in-Trust and shall be returned, effective
at exactly the time of the transfer to the non-Benefit Plan
Investor, automatically and without further action by the
Corporation or the Benefit Plan Investor, to all Benefit Plan
Investors (or the transferee, if applicable) pro rata in accordance
with the Benefit Plan Investors' prior holdings. After the discovery
of the existence of the Trust, but prior to the redemption of all
discovered Shares-in-Trust and/or the submission of all discovered
Shares-in-Trust for registration in the name of the Trust, any
transfer of Series B Preferred Stock by a Benefit Plan Investor to a
non-Benefit Plan Investor shall reduce the number of Shares-in-Trust
on a one-for-one basis, and to that extent such shares shall cease
to be designated as Shares-in-Trust and shall be returned,
automatically without further action by the Corporation or the
Benefit Plan Investor, to the transferring Benefit Plan Investor (or
its transferee, if applicable).
In the event that any shares of Series B Preferred Stock are deemed
"Shares-in-Trust" pursuant to this subsection (b) of Section 9, the
holder shall cease to own any right or interest with respect to such
shares and the Corporation will have the right to redeem such
Shares-in-Trust for an amount equal to their Fair Market Value,
which proceeds shall be payable to the purported owner. This
subsection (b) of Section 9 shall cease to apply and all
Shares-in-Trust shall cease to be designated as Shares-in-Trust and
shall be returned, automatically and by operation of law, to their
purported owners, all of which shall occur at such time as the
Series B Preferred Stock qualify as a publicly offered security or
if another exception to the "look-through" rule under the Plan Asset
Regulation applies.
SECOND: The Shares have been reclassified by the Board of Directors
pursuant to Article VI of the Charter.
THIRD: These Articles Supplementary have been approved by the Board of
Directors in the manner and by the vote required by law.
FOURTH: The undersigned Secretary of the Corporation acknowledges these
Articles Supplementary to be the corporate act of the Corporation and, as to all
matters or facts required to be verified under oath, the undersigned President
acknowledges that to the best of his knowledge, information and belief, these
matters and facts are true in all material respects and that this statement is
made under the penalties for perjury.
IN WITNESS WHEREOF, the Corporation has caused these Articles
Supplementary to be signed in its name and on its behalf by its President and
attested to by its Secretary on this ____ day of December, 1998.
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<PAGE>
ATTEST:
By: (SEAL)
- ------------------------------------- ----------------------------
Ronald Morrison William Ashmore
Secretary President
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Exhibit 2
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "Agreement") is entered into as of
December 22, 1998 by and among Impac Mortgage Holdings, Inc. (the "Company") and
the purchasers identified on the signature pages hereto (the "Purchasers"). The
Company desires to sell, and the Purchasers desire to purchase, an aggregate of
1,200,000 shares (the "Shares") of the Company's Series B 10.5% Cumulative
Convertible Preferred stock (the "Series B Preferred Stock"), on the terms and
subject to the conditions set forth herein. Accordingly, the Company and the
Purchasers hereby agree as follows:
1. Agreement to Purchase. At the Closing (as defined below), and subject
to the terms and conditions set forth in this Agreement, each Purchaser
(severally and not jointly) will purchase from the Company, and the Company will
issue and sell to such Purchaser, the number of Shares set forth on the
signature page executed by such Purchaser for a purchase price equal to $25.00
per Share.
2. Closing. Subject to Section 6 below, the closing of the purchase and
sale of the Shares (the "Closing") shall take place at 9:00 a.m. Central time on
the third business day after the date of this agreement, or on such other date
or at such other time as the Company and the Purchasers may agree. At or prior
to the Closing, (a) each Purchaser will pay the purchase price applicable to the
Shares being purchased by such Purchaser hereunder, by wire transfer of
immediately available funds to an account specified by the Company, and (b) the
Company will deliver, in accordance with instructions delivered by such
Purchaser, a certificate or certificates representing such Shares, in such
denominations and registered in such names as such Purchaser may request.
3. Representations and Warranties of the Company. The Company represents
and warrants, as of the date hereof and as of the Closing, as follows:
(a) Each of the representations and warranties of the Company
contained in Section 3 of the Placement Agency Agreement, dated December 22,
1998, between the Company and EVEREN Securities, Inc. (the "Placement Agency
Agreement") are true and correct, and such representations and warranties are
deemed to be made by the Company to the Purchasers hereunder, as if such
representations and warranties were included in this Agreement in their
entirety.
(b) To the Company's knowledge, except for such information as shall
be disclosed by the Company on or before the date hereof in a press release
substantially in the form attached hereto as Exhibit A, the Company has not
provided to any Purchaser any information that constitutes or may constitute
material information that has not been disclosed to the public within the
meaning of Section 10 of the Securities Exchange Act of 1934, as amended or Rule
10b-5 thereunder.
(c) Attached hereto as Exhibit B are true and correct copies of
resolutions duly adopted by the Board of Directors of the Company, which (among
other things) exclude the
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<PAGE>
issuance of the Shares hereunder and the acquisition of shares of the Company's
common stock, $.01 par value per share (the "Common Stock") upon conversion or
redemption of such Shares from the application of certain restrictions contained
in the Company's charter. Such resolutions were duly adopted by the Board of
Directors of the Company and have not been amended or repealed. No "fair price,"
"moratorium," "control share acquisition" or other similar anti-takeover statute
or regulation to which the Company or its subsidiaries or operations is subject
is applicable to the sale of Shares or the acquisition of Common Stock by the
Purchasers upon conversion or redemption of such Shares or to the Purchasers
solely as a result of their acquisition of such Shares or Common Stock. No
Purchaser will become an "Acquiring Person" within the meaning of the Rights
Agreement, dated as of October 7, 1998, between the Company and BankBoston, N.A.
(as amended, the "Rights Agreement") solely as a result of purchasing Shares
hereunder or acquiring Common Stock upon conversion or redemption of such
Shares. Attached hereto as Exhibit C is a true and correct copy of an amendment
to the Rights Agreement, which has been duly adopted by all necessary action on
the part of the Company and the rights agent named therein and is in full force
and effect.
(d) The Company acknowledges that the Purchasers are relying on the
foregoing representations and warranties as an inducement to consummate the
transactions contemplated by this Agreement. Such representations and warranties
shall survive delivery of and payment for the Shares hereunder.
4. Representations and Warranties of the Purchasers. Each Purchaser
(severally and not jointly) represents and warrants to the Company, as of the
date hereof and as of the Closing, that such Purchaser has not effected any
transactions in the Common Stock since October 30, 1998.
5. Covenants. The Corporation shall take all action necessary to ensure
that any shares of Common Stock issued upon conversion or redemption of, or as a
distribution in respect of, the Shares are at all times (a) freely tradable and
not subject to any resale restrictions under the Securities Act of 1933, as
amended (the "Act"), or any applicable state securities or blue sky laws (other
than shares of Common Stock that are held by an "affiliate," as defined in Rule
144 under the Act) and (b) are listed on the American Stock Exchange, the New
York Stock Exchange or the Nasdaq National Market.
6. Conditions to Closing. The obligations of each Purchaser hereunder are
subject to the satisfaction, at or prior to the Closing, of the following
conditions:
(a) The representations and warranties of the Company are true and
correct as of the date hereof and as of the date of the Closing, as if such
representations and warranties had been made on and as of such dates, and the
Company has performed all of its obligations hereunder that are required to be
performed at or prior to the Closing, and such Purchaser has received a
certificate from the Company, dated as of the date of the Closing, to such
effect.
(b) Such Purchaser has received a copy of the secretary's
certificate delivered pursuant to the Placement Agency Agreement, which
certificate will reference this paragraph.
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<PAGE>
(c) Such Purchaser has received a legal opinion from the Company's
counsel substantially in the form attached hereto as Exhibit D.
(d) Such Purchaser has received a legal opinion from the Company's
Maryland counsel substantially in the form attached hereto as Exhibit E.
7. Miscellaneous.
(a) The terms and conditions of this Agreement represent the entire
agreement between the parties with respect to the subject matter hereof and
supersede any prior agreements or understandings, whether written or oral,
between the parties respecting such subject matter. This Agreement may be
modified only in a writing signed by the party against whom such modification is
to be enforced.
(b) This Agreement shall be construed and enforced in accordance
with the laws of the State of Maryland applicable to agreements between
residents of Maryland wholly executed and wholly performed therein.
(c) The parties hereto acknowledge and agree that irreparable damage
would occur if any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to enforce specifically
the terms and provisions hereof in any court of the United States or any state
having jurisdiction, this being in addition to any other remedy to which they
are entitled at law or in equity.
(d) This Agreement may be executed in one or more counterparts, and
such counterparts shall together constitute one and the same agreement.
(e) The obligations of each Purchaser hereunder are several and not
joint with the obligations of the other Purchasers hereunder, and no Purchaser
shall be responsible in any way for the performance of the obligations of any
other Purchaser hereunder. Nothing contained herein or in any other agreement or
document delivered in connection herewith, and no action taken by any Purchaser
pursuant hereto or thereto, shall be deemed to constitute the Purchasers as a
partnership, an association, a joint venture or any other kind of entity, or
create a presumption that the Purchasers are in any way acting in concert with
respect to such obligations or the transactions contemplated by this Agreement.
Each Purchaser shall be entitled to protect and enforce its rights, including
without limitation the rights arising out of this Agreement, and it shall not be
necessary for any other Purchaser to be joined as an additional party in any
proceeding for such purpose.
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<PAGE>
IN WITNESSES WHEREOF, the parties have entered into this Agreement as of
the date first set forth above.
IMPAC MORTGAGE HOLDINGS, INC.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
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SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT
The undersigned hereby execute this counterpart signature page of the
Stock Purchase Agreement, dated as of December 22, 1998, by and among Impac
Mortgage Holdings, Inc. and the undersigned Purchasers.
Number of Shares
of Series B Purchase
MONTROSE INVESTMENTS LTD. Preferred Stock Price
--------------- -----
By: 268,000 $6,700,000
--------------------------------
Name:
------------------------------
Title:
-----------------------------
Number of Shares
of Series B Purchase
WESTOVER INVESTMENTS L.P. Preferred Stock Price
--------------- -----
By: 132,000 $3,300,000
--------------------------------
Name:
------------------------------
Title:
-----------------------------
Number of Shares
of Series B Purchase
PRIME ACQUISITION CORP. Preferred Stock Price
--------------- -----
By: 800,000 $20,000,000
--------------------------------
Name:
------------------------------
Title:
-----------------------------
5
