OR
INDIRECTLY, TO ENGAGE IN "SHORT SALES" OF THE COMPANY'S COMMON STOCK UNLESS: (I)
SUCH HOLDER HAS CONVERTED ALL OF THE SERIES B-1 STOCK HELD BY SUCH HOLDER INTO
COMMON STOCK; OR (II) THE COMPANY FAILS TO PAY A DIVIDEND ON THE SERIES B-1
STOCK AFTER IT FIRST DECLARES AND PAYS A REGULAR DIVIDEND ON THE COMMON STOCK;
OR (III) THE FAIR MARKET VALUE OF THE COMPANY'S ISSUED AND OUTSTANDING COMMON
STOCK (DETERMINED BY MULTIPLYING THE NUMBER OF SHARES OF COMMON STOCK ISSUED AND
OUTSTANDING BY THE AVERAGE CLOSING PRICE OF THE COMMON STOCK ON THE NYSE OVER
THE FIVE MOST RECENT TRADING DAYS) SHALL AT ANY TIME BE LESS THAN $71,200,000.
SECTION 2.3
DISPOSITIONS.
DURING THE TERM OF THIS AGREEMENT, NO INVESTOR
SHALL DIRECTLY OR INDIRECTLY (INCLUDING, WITHOUT LIMITATION, THROUGH THE
DISPOSITION OR TRANSFER OF ANY EQUITY INTEREST IN ANOTHER PERSON), SELL, ASSIGN,
TRANSFER, PLEDGE, HYPOTHECATE, GRANT ANY OPTION WITH RESPECT TO OR OTHERWISE
DISPOSE OF ANY INTEREST IN (OR ENTER INTO AN AGREEMENT OR UNDERSTANDING WITH
RESPECT TO THE FOREGOING) ANY SERIES B-1 STOCK (A "DISPOSITION"), EXCEPT AS SET
FORTH BELOW IN THIS SECTION 2.3 (EACH SUCH EXCEPTION BEING HEREINAFTER REFERRED
TO AS A "PERMITTED DISPOSITION"):
(A)
PRO RATA DISPOSITIONS OF SERIES B-1 STOCK
MAY BE MADE TO ANY DIRECT OR INDIRECT PARTNER, INVESTOR OR PARTICIPANT (A
"BENEFICIAL HOLDER") OF ANY INVESTOR PURSUANT TO THE TERMS OF THE LIMITED
PARTNERSHIP AGREEMENT, OPERATING AGREEMENT OR SIMILAR AGREEMENT OF SUCH
INVESTOR, PROVIDED, THAT NO SUCH DISPOSITION SHALL BE MADE UNLESS THE BENEFICIAL
HOLDER AGREES IN WRITING TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
(B)
DISPOSITIONS OF SERIES B-1 STOCK MAY BE MADE
TO ANY PERSON PURSUANT TO (I) A PUBLIC OFFERING EFFECTED IN ACCORDANCE WITH THE
REGISTRATION RIGHTS AGREEMENT, (II) IN PRIVATELY-NEGOTIATED TRANSACTIONS TO (A)
AN INSTITUTIONAL INVESTOR OR (B) IF SUCH DISPOSITION IS APPROVED BY THE BOARD
("OTHER TRANSFEREE") ANY OTHER PERSON OR (III) PURSUANT TO RULE 144 PROMULGATED
UNDER THE SECURITIES ACT; PROVIDED, THAT NO DISPOSITION SHALL BE MADE PURSUANT
TO CLAUSE (II) OF THIS SECTION 2.3(B) UNLESS SUCH INSTITUTIONAL INVESTOR OR
OTHER TRANSFEREE AGREES IN WRITING TO BECOME A HOLDER UNDER THE TERMS OF THIS
AGREEMENT.
(C)
DISPOSITIONS OF SERIES B-1 STOCK MAY BE
MADE TO ANY AFFILIATE OF AN INVESTOR, PROVIDED THAT SUCH AFFILIATE AGREES IN
WRITING TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
ARTICLE III
ADDITIONAL COVENANTS
SECTION 3.1
Affiliate Transactions.
So long as at least 910,000 shares of
Series B-1 Stock are outstanding, except for (i) transactions between the
Company and any wholly-owned subsidiary and (ii) pursuant to compensatory or
contractual arrangements existing on the date hereof, neither the Company nor
any subsidiary shall enter into any transaction with, any Affiliate without the
consent of a majority of those Trustees who are considered independent under
Section 303 of the NYSE listing standards (including at least one Series B-1
Designee).
Without regard to the number of shares of Series B-1 Stock
outstanding, all such transactions shall be on fair and reasonable