ACQUISITION SOUTHEASTERN WOULD BENEFICIALLY OWN LESS THAN 557,300,000
SHARES OF COMMON STOCK (SUBJECT TO APPROPRIATE ADJUSTMENT TO TAKE INTO ACCOUNT
ANY STOCK SPLITS, SUBDIVISIONS, STOCK DIVIDENDS, COMBINATIONS, RECLASSIFICATIONS
OR SIMILAR EVENTS OCCURRING AFTER THE DATE HEREOF); PROVIDED THAT SOUTHEASTERN
SHALL IN NO EVENT MAKE ANY SUCH ACQUISITION FOR ITS OWN ACCOUNT OR ON BEHALF OF
ANY ADVISORY CLIENT IF IT OR SUCH ADVISORY CLIENT IS ON THE DATE OF SUCH
PURCHASE OR WOULD BECOME, AS A RESULT OF SUCH PURCHASE, A "5-PERCENT
SHAREHOLDER" OF THE COMPANY WITHIN THE MEANING OF SECTION 382 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED, AND THE REGULATIONS PROMULGATED THEREUNDER
(INCLUDING ALL APPLICABLE ATTRIBUTION RULES) (THE "CODE");
(II)
ENTER INTO ANY ARRANGEMENTS, UNDERSTANDINGS OR AGREEMENTS
(WHETHER WRITTEN OR ORAL) WITH ANY PERSON OR TAKE ANY ACTION, THAT WOULD CAUSE,
OR HAVE THE EFFECT OF CAUSING, DIRECTLY OR INDIRECTLY, (1) A "CHANGE OF CONTROL"
AS DEFINED IN THE INDENTURES, SUPPLEMENTAL INDENTURES OR CREDIT AGREEMENTS, AS
THE CASE MAY BE, RELATING TO ANY INDEBTEDNESS FOR BORROWED MONEY OF THE COMPANY
OR ANY OF ITS SUBSIDIARIES OR (2) THE COMPANY TO UNDERGO AN "OWNERSHIP CHANGE"
WITHIN THE MEANING OF THE CODE;
(III)
FORM, JOIN OR PARTICIPATE IN A GROUP IN CONNECTION WITH ANY OF
THE FOREGOING; OR
(IV)
MAKE OR CAUSE THE COMPANY TO MAKE A PUBLIC ANNOUNCEMENT REGARDING
ANY INTENTION OF SOUTHEASTERN TO TAKE AN ACTION WHICH WOULD BE PROHIBITED BY ANY
OF THE FOREGOING.
(B)
THE TERM "STANDSTILL PERIOD" SHALL MEAN THE PERIOD BEGINNING ON
FEBRUARY 18, 2005 AND ENDING ON FEBRUARY 18, 2013.
4.2.
TRANSFER RESTRICTIONS.
(A)
DURING THE STANDSTILL PERIOD, SOUTHEASTERN SHALL NOT SELL, ASSIGN,
PLEDGE, TRANSFER OR OTHERWISE DISPOSE OR ENCUMBER ("TRANSFER") TO ANY PERSON OR
PERSONS ANY SHARES OF COMMON STOCK THAT IT BENEFICIALLY OWNS (X) IN NEGOTIATED
TRANSACTIONS (INCLUDING IN ACCORDANCE WITH RULE 144A UNDER THE SECURITIES ACT)
IF SUCH PERSON (TOGETHER WITH ITS AFFILIATES) WOULD BENEFICIALLY OWN, AFTER
GIVING EFFECT TO SUCH TRANSFER (OR SERIES OF TRANSFERS), TWENTY PERCENT (20%) OR
MORE OF THE COMMON STOCK; PROVIDED THAT A SALE OF COMMON STOCK BY SOUTHEASTERN
IN
5
AN OPEN MARKET BROKER SALE TRANSACTION COMPLYING WITH RULES 144(F) AND
(G)(1) AND (G)(2) UNDER THE SECURITIES ACT WITHOUT KNOWLEDGE BY SOUTHEASTERN OF
THE IDENTITY OF THE ACQUIROR AT THE TIME OF THE SALE TRANSACTION SHALL NOT
CONSTITUTE A NEGOTIATED TRANSACTION, OR (Y) IF THE PRICE PAID IN SUCH
TRANSACTION IS AT A PREMIUM TO THE THEN-CURRENT MARKET PRICE OF THE COMMON STOCK
DURING REGULAR TRADING HOURS ON THE NATIONAL SECURITIES EXCHANGE ON WHICH THE
COMMON STOCK IS THEN TRADED.
(B)
NOTWITHSTANDING THE FOREGOING, SOUTHEASTERN SHALL BE PERMITTED TO
TENDER ANY SHARES OF COMMON STOCK IT BENEFICIALLY OWNS PURSUANT TO A TENDER
OFFER BY A THIRD PARTY FOR SHARES OF COMMON STOCK THAT IS OPEN TO ALL
STOCKHOLDERS OF THE COMPANY, SO LONG AS A MAJORITY OF THE ENTIRE BOARD OF
DIRECTORS (EXCLUDING ANY REPRESENTATIVES OR DESIGNEES OF SOUTHEASTERN) HAS
RECOMMENDED TO THE STOCKHOLDERS OF THE COMPANY THAT SUCH STOCKHOLDERS ACCEPT