Exhibit (1)
AMENDMENT AND RESTATEMENT AGREEMENT, dated as of October 19, 1999 (this
"Amendment Agreement"), between Mellon Financial Corporation (formerly known as
Mellon Bank Corporation), a Pennsylvania corporation (the "Company"), and Mellon
Bank, N.A., a national banking association, as Rights Agent under the Rights
Agreement referred to below (the "Rights Agent").
W I T N E S S E T H:
WHEREAS, the Company and the Rights Agent are parties to the
Shareholder Protection Rights Agreement, dated as of October 15, 1996 (as
amended and restated on May 17, 1999, the "Rights Agreement");
WHEREAS, the Company has requested that the Rights Agent duly execute
and deliver this Amendment Agreement;
WHEREAS, Section 5.4 of the Rights Agreement provides that the Company
and the Rights Agent may from time to time amend the Rights Agreement in any
respect prior to the Flip-in Date (as defined in the Rights Agreement) and that
the Rights Agent will, at the request of the Company, execute and deliver any
amendment to the Rights Agreement satisfying the terms of Section 5.4; and
WHEREAS, no Flip-in Date has occurred as of the date hereof;
NOW, THEREFORE, in consideration of the premises, the parties hereby
agree as follows:
1. Amendment and Restatement. The Rights Agreement is hereby amended
and restated to read as set forth in the attached Amended and Restated
Shareholder Protection Rights Agreement.
2. Counterparts. This Amendment Agreement may be executed in any number
of counterparts and each of such counterparts shall for all purposes be deemed
to be an original, and all such counterparts shall together constitute but one
and the same instrument.
3. GOVERNING LAW. THIS AMENDMENT AGREEMENT SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA AND FOR ALL
PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF SUCH
STATE APPLICABLE TO CONTRACTS TO BE MADE AND PERFORMED ENTIRELY WITHIN SUCH
STATE.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
Agreement to be executed as of the date first above written.
MELLON FINANCIAL CORPORATION
By /s/ Xxxxxx X. XxXxxxx
-------------------------------------
Xxxxxx X. XxXxxxx
Chairman and Chief
Executive Officer
MELLON BANK, N.A.,
as Rights Agent
By /s/ Xxxxxxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxxxxxxx X. Xxxxxxx
President and Chief
Operating Officer
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AMENDED AND RESTATED SHAREHOLDER PROTECTION RIGHTS AGREEMENT
dated as of
October 15, 1996
between
MELLON FINANCIAL CORPORATION
and
MELLON BANK, N.A.,
as Rights Agent
------------------------
Amended and Restated
as of
October 19, 1999
------------------------
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AMENDED AND RESTATED SHAREHOLDER PROTECTION RIGHTS AGREEMENT
Table of Contents
Page
----
ARTICLE I
DEFINITIONS............................. 1
1.1 Certain Definitions........................................... 1
ARTICLE II
THE RIGHTS.............................. 9
2.1 Summary of Rights............................................. 9
2.2 Rights Associated with Common Stock; Legends.................. 9
2.3 Exercise of Rights; Separation of Rights...................... 11
2.4 Adjustments to Exercise Price; Number of Rights............... 14
2.5 Date on Which Exercise is Effective........................... 15
2.6 Execution, Authentication, Delivery
and Dating of Rights Certificates............................. 15
2.7 Registration, Registration of Transfer and
Exchange...................................................... 16
2.8 Mutilated, Destroyed, Lost and Stolen Rights
Certificates.................................................. 17
2.9 Persons Deemed Owners......................................... 18
2.10 Delivery and Cancellation of Certificates..................... 18
2.11 Agreement of Rights Holders................................... 19
ARTICLE III
ADJUSTMENTS TO THE RIGHTS
IN THE EVENT OF CERTAIN TRANSACTIONS................. 20
3.1 Flip-in....................................................... 20
3.2 Flip-over..................................................... 22
ARTICLE IV
THE RIGHTS AGENT............................ 23
4.1 General....................................................... 23
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Page
----
4.2 Merger or Consolidation or Change of Name of
Rights Agent.................................................. 24
4.3 Duties of Rights Agent........................................ 25
4.4 Change of Rights Agent........................................ 27
ARTICLE V
MISCELLANEOUS............................. 28
5.1 Redemption.................................................... 28
5.2 Expiration.................................................... 29
5.3 Issuance of New Rights Certificates........................... 29
5.4 Supplements and Amendments.................................... 29
5.5 Fractional Shares............................................. 30
5.6 Rights of Action.............................................. 30
5.7 Holder of Rights Not Deemed a Shareholder..................... 30
5.8 Notice of Proposed Actions.................................... 31
5.9 Notices....................................................... 31
5.10 Suspension of Exercisability or
Exchangeability............................................... 32
5.11 Costs of Enforcement.......................................... 32
5.12 Successors.................................................... 33
5.13 Benefits of this Agreement.................................... 33
5.14 Determination and Actions by the Board of
Directors, etc................................................ 33
5.15 Descriptive Headings.......................................... 33
5.16 GOVERNING LAW................................................. 33
5.17 Counterparts.................................................. 33
5.18 Severability.................................................. 34
EXHIBITS
Exhibit A Form of Rights Certificate
(Together with Form of
Election to Exercise)
Exhibit B Form of Resolution of Board of
Directors of Mellon Financial
Corporation Establishing and
Designating Participating
Preferred Stock
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AMENDED AND RESTATED SHAREHOLDER PROTECTION RIGHTS AGREEMENT, dated as
of October 15, 1996 and amended and restated as of October 19, 1999 (as further
amended from time to time, this "Agreement"), between Mellon Financial
Corporation (formerly known as Mellon Bank Corporation), a Pennsylvania
corporation (the "Company"), and Mellon Bank, N.A., a national banking
association, as Rights Agent (the "Rights Agent", which term shall include any
successor Rights Agent hereunder).
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Board of Directors of the Company has (a) authorized and
declared a dividend of one right ("Right") in respect of each share of Common
Stock (as hereinafter defined) held of record as of the close of business on
October 31, 1996 (the "Record Time") and (b) as provided in Section 2.4,
authorized the issuance of one Right in respect of each share of Common Stock
issued or sold by the Company after the Record Time and prior to the Separation
Time (as hereinafter defined) and, to the extent provided in Section 5.3(b),
each share of Common Stock issued or sold by the Company after the Separation
Time;
WHEREAS, subject to the terms and conditions hereof, each Right
entitles the holder thereof, after the Separation Time, to purchase securities
or assets of the Company (or, in certain cases, securities of certain other
entities) pursuant to the terms and subject to the conditions set forth herein;
and
WHEREAS, the Company desires to appoint the Rights Agent to act on
behalf of the Company, and the Rights Agent is willing so to act, in connection
with the issuance, transfer, exchange and replacement of Rights Certificates (as
hereinafter defined), the exercise of Rights and other matters referred to
herein;
NOW, THEREFORE, in consideration of the premises and the respective
agreements set forth herein and intending to be legally bound hereby, the
parties hereby agree as follows:
ARTICLE I
DEFINITIONS
-----------
1.1 Certain Definitions. For purposes of this Agreement, the following
terms have the meanings indicated:
"Acquiring Person" shall mean any Person who is a Beneficial Owner of
15% or more of the outstanding shares of Common Stock; provided, however, that
the term "Acquiring Person" shall not include
(i) any Person who is the Beneficial Owner of 15% or more of the
outstanding shares of Common Stock on October 15, 1996 or who shall become
the Beneficial Owner of 15% or more of the outstanding shares of Common
Stock solely as a result of an acquisition by the Company of shares of
Common Stock, until such time hereafter or thereafter as such Person shall
become the Beneficial Owner (other than by means of a stock dividend or
stock split or by purchase from the Company) of any additional shares of
Common Stock;
(ii) any Person who becomes the Beneficial Owner of 15% or more of the
outstanding shares of Common Stock but who acquired Beneficial Ownership of
shares of Common Stock without any plan or intention to seek or affect
control of the Company, if such Person promptly enters into an irrevocable
commitment to divest, and thereafter promptly divests (without exercising
or retaining any power, including voting, with respect to such shares),
sufficient shares of Common Stock (or securities convertible into,
exchangeable into or exercisable for Common Stock) so that such Person
ceases to be the Beneficial Owner of 15% or more of the outstanding shares
of Common Stock;
(iii) any Person who Beneficially Owns shares of Common Stock
consisting solely of one or more of (A) shares of Common Stock Beneficially
Owned pursuant to the grant or exercise of an option granted to such Person
(an "Option Holder") by the Company in connection with an agreement to
merge with, or acquire, the
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Company entered into prior to the Flip-in Date, (B) shares of Common Stock
(or securities convertible into, exchangeable into or exercisable for
Common Stock), Beneficially Owned by such Option Holder or its Affiliates
or Associates at the time of grant of such option, (C) shares of Common
Stock (or securities convertible into, exchangeable into or exercisable for
Common Stock) acquired by Affiliates or Associates of such Option Holder
after the time of such grant which, in the aggregate, amount to less than
1% of the outstanding shares of Common Stock, and (D) shares of Common
Stock (or securities convertible into, exchangeable into or exercisable
for Common Stock) which are held by such Option Holder in trust accounts,
managed accounts and the like or otherwise held in a fiduciary capacity,
that are beneficially owned by third Persons who are not Affiliates or
Associates of such Option Holder or acting together with such Option Holder
to hold such shares, or which are held by such Person in respect of a debt
previously contracted; and
(iv) the Company, any wholly-owned Subsidiary of the Company, any
employee stock ownership plan or other employee benefit plan of the Company
or a wholly-owned subsidiary of the Company or any employee stock benefit
trust established by the Company ("Employee Plans").
"Affiliate" and "Associate" shall have the respective meanings ascribed
to such terms in Rule 12b-2 under the Securities Exchange Act of 1934, as such
Rule is in effect on the date of this Agreement.
A Person shall be deemed the "Beneficial Owner", and to have
"Beneficial Ownership", of, and to "Beneficially Own", any securities as to
which such Person or any of such Person's Affiliates or Associates is or may be
deemed to be the beneficial owner pursuant to Rules 13d-3 and 13d-5 under the
Exchange Act, as such Rules are in effect on the date of this Agreement, as well
as any securities as to which such Person or any of such Person's Affiliates or
Associates has the right to become Beneficial Owner (whether such right is
exercisable immediately or only after the passage of time or the occurrence of
conditions) pursuant to any agreement,
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arrangement or understanding, or upon the exercise of conversion rights,
exchange rights, rights (other than the Rights), warrants or options, or
otherwise; provided, however, that a Person shall not be deemed the "Beneficial
Owner" of, to have "Beneficial Ownership" of, or to "Beneficially Own", any
security (i) solely because such security has been tendered pursuant to a tender
or exchange offer made by such Person or any of such Person's Affiliates or
Associates until such tendered security is accepted for payment or exchange,
(ii) solely because such Person or any of such Person's Affiliates or Associates
has or shares the power to vote or direct the voting of such security pursuant
to a revocable proxy given in response to a public proxy or consent solicitation
made to more than ten holders of shares of a class of stock of the Company
registered under Section 12 of the Exchange Act and pursuant to, and in
accordance with, the applicable rules and regulations under the Exchange Act,
except if such power (or the arrangements relating thereto) is then reportable
under Item 6 of Schedule 13D under the Exchange Act (or any similar provision of
a comparable or successor report), or (iii) solely because of the grant by the
Company to such Person, in connection with the execution of an agreement to
acquire the Company, of options to acquire such security; provided, further,
that the Warburg Entities shall not be deemed to Beneficially Own shares of
Common Stock owned by their Associates (other than their Affiliates, general
partners, officers and directors), and such Associates (other than such
Affiliates, general partners, officers and directors) shall not be deemed to
Beneficially Own shares of Common Stock owned by the Warburg Entities.
Notwithstanding the foregoing, no officer or director of the Company shall be
deemed to Beneficially Own any securities of any other Person by virtue of any
actions such officer or director takes in such capacity. For purposes of this
Agreement, in determining the percentage of the outstanding shares of Common
Stock with respect to which a Person is the Beneficial Owner, all shares as to
which such Person is deemed the Beneficial Owner shall be deemed outstanding.
"Business Day" shall mean any day other than a Saturday, Sunday or a
day on which banking institutions in The City of New York or the Commonwealth of
Pennsylvania are
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generally authorized or obligated by law or executive order to close.
"close of business" on any given date shall mean the time on such date
(or, if such date is not a Business Day, the time on the next succeeding
Business Day) at which the offices of the transfer agent for the Common Stock
(or, after the Separation Time, the offices of the Rights Agent) are closed to
the public.
"Common Stock" shall mean the shares of Common Stock, par value $.50
per share, of the Company.
"Company" shall have the meaning set forth in the preamble.
"Election to Exercise" shall have the meaning set forth in Section
2.3(d) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Exchange Ratio" shall have the meaning set forth in Section 3.1(c)
hereof.
"Exchange Time" shall mean the time at which the right to exercise the
Rights shall terminate pursuant to Section 3.1(c) hereof.
"Exercise Price" shall mean, as of any date, the price at which a
holder may purchase the securities issuable upon exercise of one whole Right.
From October 19, 1999, the Exercise Price shall be $135, until adjusted
thereafter in accordance with the terms of this Agreement. (The Exercise Price
was amended by the Amendment and Restatement Agreement, dated as of October 19,
1999, between the Company and the Rights Agent.)
"Expansion Factor" shall have the meaning set forth in Section 2.4(a)
hereof.
"Expiration Time" shall mean the earliest of (i) the Exchange Time,
(ii) the Redemption Time, (iii) the
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close of business on the tenth anniversary of the Record Time and (iv)
immediately prior to the effective time of a consolidation, merger or share
exchange of the Company (A) into another corporation or (B) with another
corporation in which the Company is the surviving corporation but Common Stock
is converted into cash and/or securities of another corporation, in either case
pursuant to an agreement entered into by the Company prior to a Stock
Acquisition Date.
"Flip-in Date" shall mean any Stock Acquisition Date which is not the
result of a Flip-over Transaction or Event.
"Flip-over Entity," for purposes of Section 3.2, shall mean (i) in the
case of a Flip-over Transaction or Event described in clause (A) of the
definition thereof, the Person issuing any securities into which shares of
Common Stock are being converted or exchanged and, if no such securities are
being issued, the other party to such Flip-over Transaction or Event and (ii)
in the case of a Flip-over Transaction or Event referred to in clause (B) of
the definition thereof, the Person receiving the greatest portion of the (i)
assets or (ii) operating income or cash flow being transferred in such Flip-over
Transaction or Event, provided in all cases if such Person is a subsidiary of a
corporation, the parent corporation shall be the Flip-Over Entity.
"Flip-over Stock" of any Person shall mean the capital stock (or
similar equity interest) with the greatest voting power in respect of the
election of directors (or other persons similarly responsible for direction of
the business and affairs) of the Flip-Over Entity.
"Flip-over Transaction or Event" shall mean a transaction or series of
transactions on or after a Flip-in Date in which, directly or indirectly, (A)
the Company shall consolidate or merge with, or participate in a share exchange
with any other Person if, at the time of the consolidation, merger or share
exchange or at the time the Company enters into any agreement with respect to
any such consolidation, merger or share exchange, the Acquiring Person Controls
the Board of Directors of the Company and
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either (i) any terms of or arrangement concerning the treatment of shares of
capital stock in such consolidation, merger or share exchange relating to the
Acquiring Person is not identical to the terms and arrangements relating to
other holders of the Common Stock or (ii) the Person with whom the transaction
or series of transactions occurs is the Acquiring Person or an Affiliate or
Associate of the Acquiring Person, or (B) the Company shall sell or otherwise
transfer (or one or more of its Subsidiaries shall sell or otherwise transfer)
assets of the Company and its Subsidiaries (taken as a whole) to any Person
(other than the Company or one or more of its wholly owned Subsidiaries) or to
two or more such Persons which are Affiliates or Associates or otherwise acting
in concert, if, at the time of the entry by the Company (or any such Subsidiary)
into an agreement with respect to such sale or transfer of assets, the Acquiring
Person Controls the Board of Directors of the Company. For purposes of the
foregoing description, (x) the term "Acquiring Person" shall include any
Acquiring Person and its Affiliates and Associates (other than the Company) and
(y) an Acquiring Person shall be deemed to Control the Company's Board of
Directors when, following a Flip-in Date, the persons who were directors of the
Company (or persons nominated and/or appointed as directors by vote of a
majority of such persons) before the Stock Acquisition Date shall cease to
constitute a majority of the Company's Board of Directors.
"Market Price" per share of any securities on any date shall mean the
average of the daily closing prices per share of such securities (determined as
described below) on each of the 20 consecutive Trading Days through and
including the Trading Day immediately preceding such date; provided, however,
that if an event of a type analogous to any of the events described in Section
2.4 hereof shall have caused the closing prices used to determine the Market
Price on any Trading Days during such period of 20 Trading Days not to be fully
comparable with the closing price on such date, each such closing price so used
shall be appropriately adjusted in order to make it fully comparable with the
closing price on such date. The closing price per share of any securities on any
date shall be the last reported sale price, regular way, or, in case no such
sale takes place or
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is quoted on such date, the average of the closing bid and asked prices, regular
way, for each share of such securities, in either case as reported in the
principal consolidated transaction reporting system with respect to securities
listed or admitted to trading on the New York Stock Exchange, Inc. or, if the
securities are not listed or admitted to trading on the New York Stock Exchange,
Inc., as reported in the principal consolidated transaction reporting system
with respect to securities listed on the principal national securities exchange
on which the securities are listed or admitted to trading or, if the securities
are not listed or admitted to trading on any national securities exchange, as
reported by the National Association of Securities Dealers, Inc. Automated
Quotation System or such other system then in use, or, if on any such date the
securities are not listed or admitted to trading on any national securities
exchange or quoted by any such organization, the average of the closing bid and
asked prices as furnished by a professional market maker making a market in the
securities selected by the Board of Directors of the Company; provided,
however, that if on any such date the securities are not listed or admitted to
trading on a national securities exchange or traded in the over-the-counter
market, the closing price per share of such securities on such date shall mean
the fair value per share of securities on such date as determined in good faith
by the Board of Directors of the Company, after consultation with a nationally
recognized investment banking firm, and set forth in a certificate delivered to
the Rights Agent.
"Participating Preferred Stock" shall mean the series of Participating
Preferred Stock, par value $1.00 per share, of the Company created by a
Statement Affecting Class or Series of Shares in substantially the form set
forth in Exhibit B hereto appropriately completed.
"Option Holder" shall have the meaning set forth in the definition of
Acquiring Person.
"Person" shall mean any individual, firm, partnership, association,
group (as such term is used in Rule 13d-5 under the Securities Exchange Act of
1934, as
-8-
such Rule is in effect on the date of this Agreement), corporation or other
entity.
"Record Time" shall have the meaning set forth in the Recitals.
"Redemption Price" shall mean an amount (calculated to the nearest one
one-hundredth of a cent) equal to the Exercise Price, as in effect at the
Redemption Time, divided by 13,500 (i.e., $0.01 as of October 19, 1999).
"Redemption Time" shall mean the time at which the right to exercise
the Rights shall terminate pursuant to Section 5.1 hereof.
"Right" shall have the meaning set forth in the Recitals.
"Rights Agent" shall have the meaning set forth in the Preamble.
"Rights Certificate" shall have the meaning set forth in Section 2.3(c)
hereof.
"Rights Register" shall have the meaning set forth in Section 2.7(a)
hereof.
"Rights Registrar" shall have the meaning set forth in Section 2.7(a)
hereof.
"Separation Time" shall mean the close of business on the earlier of
(i) the tenth Business Day (or such later date as the Board of Directors of the
Company may from time to time fix by resolution adopted prior to the Separation
Time that would otherwise have occurred) after the date on which any Person
commences a tender or exchange offer which, if consummated, would result in such
Person's becoming an Acquiring Person and (ii) the Flip-in Date; provided that,
if the foregoing results in the Separation Time being prior to the Record Time,
the Separation Time shall be the Record Time and provided further, that, if any
tender or exchange offer referred to in clause (i) of this definition is
cancelled, terminated or otherwise withdrawn prior to the
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Separation Time without the purchase of any shares of Common Stock pursuant
thereto, such offer shall be deemed, for purposes of this definition, never to
have been made.
"Stock Acquisition Date" shall mean the first date of public
announcement by the Company (by any means) that a Person has become an Acquiring
Person.
"Subsidiary" of any specified Person shall mean any corporation or
other entity of which a majority of the voting power of the equity securities or
a majority of the equity interest is Beneficially Owned, directly or indirectly,
by such Person.
"Trading Day", when used with respect to any securities, shall mean a
day on which the New York Stock Exchange, Inc. is open for the transaction of
business or, if such securities are not listed or admitted to trading on the New
York Stock Exchange, Inc., a day on which the principal national securities
exchange on which such securities are listed or admitted to trading is open for
the transaction of business or, if such securities are not listed or admitted
to trading on any national securities exchange, a Business Day.
ARTICLE II
THE RIGHTS
----------
2.1 Summary of Rights. As soon as practicable after the Record Time,
the Company will mail a letter summarizing the terms of the Rights to each
holder of record of Common Stock as of the Record Time, at such holder's address
as shown by the records of the Company.
2.2 Rights Associated with Common Stock; Legends. (a) Until the
Separation Time, each share of Common Stock held of record as of the Record Time
and, as provided in Section 2.4, each share of Common Stock issued or sold by
the Company after the Record Time and prior to the Separation Time shall have
associated with it one Right (which shall be evidenced only as described in
Sections 2.1, 2.2(b) and 2.2(c)).
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(b) Certificates for certificated shares of Common Stock issued after
the Record Time but prior to the Separation Time shall have impressed on,
printed on, written on or otherwise affixed to them the following legend:
"Until the Separation Time (as defined in the Rights Agreement referred to
below), this certificate also evidences and entitles the holder hereof to
certain Rights as set forth in a Shareholder Protection Rights Agreement,
dated as of October 15, 1996 (as such may be amended from time to time, the
"Rights Agreement"), between Mellon Financial Corporation (the "Company")
and Mellon Bank, N.A., as Rights Agent, the terms of which are hereby
incorporated herein by reference and a copy of which is on file at the
principal executive offices of the Company. Under certain circumstances, as
set forth in the Rights Agreement, such Rights may be redeemed, may become
exercisable for securities or assets of the Company or securities of
another entity, may be exchanged for shares of Common Stock or other
securities or assets of the Company, may expire, may become void (if they
are "Beneficially Owned" by an "Acquiring Person" or an Affiliate or
Associate thereof, as such terms are defined in the Rights Agreement, or by
any transferee of any of the foregoing) or may be evidenced by separate
certificates and may no longer be evidenced by this certificate. The
Company will mail or arrange for the mailing of a copy of the Rights
Agreement to the holder of this certificate without charge after the
receipt of a written request therefor."
Until the Separation Time, certificates representing certificated shares of
Common Stock that are issued and outstanding at the Record Time shall evidence
one Right for each share of Common Stock evidenced thereby notwithstanding the
absence of the foregoing legend.
(c) Any confirmation or advice by the Company issued after the Record
Time but prior to the Separation
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Time of issuance or transfer of uncertificated shares of Common Stock shall
contain a notice of the existence of the Rights associated with such shares of
Common Stock. The form of such notice shall be as the Company may elect from
time to time. Without limiting the generality of the foregoing, such notice may
take the form of (i) a general statement to the effect that rights may be
attached to such shares and that a shareholder may obtain a full copy of the
text of such rights free of charge from the Company or (ii) a statement similar
to the following:
"Until the Separation Time (as defined in the Agreement referred to below),
holders of the Company's Common Stock are entitled to certain Rights as set
forth in a Shareholder Protection Rights Agreement, dated as of October 15,
1996 (as amended from time to time), between the Company and Mellon Bank,
N.A., as Rights Agent. A copy of the Agreement, which is incorporated
herein by reference, is on file at the Company's executive offices and will
be mailed without charge to any shareholder upon written request. Under
certain circumstances, the Rights may be redeemed, may become exercisable
for securities or assets of the Company or another entity, may be exchanged
for Common Stock or other securities or assets of the Company, may expire,
may become void (if they are "Beneficially Owned" by an "Acquiring Person"
or an Affiliate or Associate thereof, as such terms are defined in the
Agreement, or by any transferee of any of the foregoing) or may be
evidenced by separate certificates and may no longer be attached to the
Common Stock."
Uncertificated shares of Common Stock issued and outstanding at the Record Time
(if any) shall, until the Separation Time, entitle the holder to one Right for
each share of Common Stock notwithstanding the absence of any such notice on any
confirmation or advice issued on or before the Record Time.
2.3 Exercise of Rights; Separation of Rights. (a) Subject to Sections
3.1, 5.1 and 5.10 and subject to
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adjustment as herein set forth, each Right will entitle the holder thereof,
after the Separation Time and prior to the Expiration Time, to purchase, for the
Exercise Price, one one-hundredth of a share of Participating Preferred Stock.
(b) Until the Separation Time, (i) no Right may be exercised and (ii)
each Right will be associated with a share of Common Stock and will be
transferable only together with, and will be transferred by a transfer of, such
associated share. Notwithstanding any other provision of this Agreement, any
Rights held by the Company or any of its Subsidiaries (other than Rights held in
a fiduciary capacity or pursuant to any Employee Plans) shall not be exercisable
by the Company or any such Subsidiary.
(c) Subject to the terms and conditions hereof, after the Separation
Time and prior to the Expiration Time, the Rights (i) may be exercised and (ii)
may be transferred independent of shares of Common Stock. Promptly following the
Separation Time, the Rights Agent will mail to each holder of record of Common
Stock as of the Separation Time (other than any Person whose Rights have become
void pursuant to Section 3.1(b)), at such holder's address as shown by the
records of the Company (the Company hereby agreeing to furnish copies of such
records to the Rights Agent for this purpose), (x) a certificate (a "Rights
Certificate") in substantially the form of Exhibit A hereto appropriately
completed, representing the number of Rights held by such holder at the
Separation Time and having such marks of identification or designation and such
legends, summaries or endorsements printed thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of this Agreement,
or as may be required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any national securities
exchange or quotation system on which the Rights may from time to time be listed
or traded, or to conform to usage, and (y) a disclosure statement describing the
Rights.
(d) Subject to the terms and conditions hereof, Rights may be exercised
on any Business Day after the Separation Time and prior to the Expiration Time
by submitting to the Rights Agent the Rights Certificate evidencing
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such Rights with an Election to Exercise (an "Election to Exercise")
substantially in the form attached to the Rights Certificate duly completed,
accompanied by payment in cash, or by certified or official bank check or money
order payable to the order of the Company, of a sum equal to the Exercise Price
multiplied by the number of Rights being exercised and a sum sufficient to cover
any transfer tax or charge which may be payable in respect of any transfer
involved in the transfer or delivery of Rights Certificates or the issuance or
delivery of shares (or certificates for shares or depositary receipts or both)
in a name other than that of the holder of the Rights being exercised.
(e) Upon receipt of a Rights Certificate, with an Election to Exercise
accompanied by payment as set forth in Section 2.3(d), and subject to the terms
and conditions hereof, the Rights Agent will thereupon promptly (i)(A)
requisition from a transfer agent shares or other securities to be purchased,
including, in case so requested by the registered holder of the Rights
Certificate or if elected by the Company, certificates representing the same
(the Company hereby irrevocably authorizing its transfer agents to comply with
all such requisitions), and (B) if the Company elects pursuant to Section 5.5
hereof not to issue fractional shares, requisition from the depositary selected
by the Company depositary receipts representing the fractional shares to be
purchased or requisition from the Company the amount of cash to be paid in lieu
of fractional shares in accordance with Section 5.5 and (ii) after receipt of
such shares, certificates, depositary receipts and/or cash, deliver the same to
or upon the order of the registered holder of such Rights Certificate,
registered (in the case of shares, certificates and/or depositary receipts) in
such name or names as may be designated by such holder.
(f) In case the holder of any Rights shall exercise less than all the
Rights evidenced by such holder's Rights Certificate, a new Rights Certificate
evidencing the Rights remaining unexercised will be issued by the Rights Agent
to such holder or to such holder's duly authorized assigns.
-14-
(g) The Company covenants and agrees that it will (i) cause to be kept
available until the Expiration Time out of its authorized and unissued shares of
capital stock a number of shares of Participating Preferred Stock that will be
sufficient to permit the exercise in full of all outstanding Rights; (ii) take
all such action as may be necessary to ensure that all shares delivered upon
exercise of Rights shall, at the time of delivery thereof (subject to payment of
the Exercise Price), be duly and validly authorized, executed, issued and
delivered and fully paid and nonassessable; (iii) take all such action as may be
necessary to comply with any applicable requirements of the Securities Act of
1933 or the Exchange Act, and the rules and regulations thereunder, and any
other applicable law, rule or regulation, in connection with the issuance of any
shares upon exercise of Rights; and (iv) pay when due and payable any and all
federal and state transfer taxes and charges which may be payable in respect of
the original issuance or delivery of the Rights Certificates or of any shares
issued upon the exercise of Rights, provided that the Company shall not be
required to pay any transfer tax or charge which may be payable in respect of
any transfer involved in the transfer or delivery of Rights Certificates or the
issuance or delivery of shares in a name other than that of the holder of the
Rights being transferred or exercised.
2.4 Adjustments to Exercise Price; Number of Rights. (a) In the event
the Company shall at any time after the Record Time and prior to the Separation
Time (i) declare or pay a dividend on Common Stock payable in Common Stock, (ii)
subdivide the outstanding Common Stock or (iii) combine the outstanding Common
Stock into a smaller number of shares of Common Stock, (x) the Exercise Price in
effect after such adjustment will be equal to the Exercise Price in effect
immediately prior to such adjustment divided by the number of shares of Common
Stock (the "Expansion Factor") that a holder of one share of Common Stock
immediately prior to such dividend, subdivision or combination would hold
thereafter as a result thereof and (y) each Right held prior to such adjustment
will become that number of Rights equal to the Expansion Factor, and the
adjusted number of Rights will be deemed to be distributed among the
-15-
shares of Common Stock with respect to which the original Rights were associated
(if they remain outstanding) and the shares issued in respect of such dividend,
subdivision or combination, so that each such share of Common Stock will have
exactly one Right associated with it. Each adjustment made pursuant to this
paragraph shall be made as of the payment or effective date for the applicable
dividend, subdivision or combination.
In the event the Company shall at any time after the Record Time and
prior to the Separation Time issue or sell any shares of Common Stock otherwise
than in a transaction referred to in the preceding paragraph, each such share of
Common Stock so issued or sold shall automatically have one new Right associated
with it (which Right shall be evidenced as described in Section 2.2(b) or (c),
as the case may be). To the extent provided in Section 5.3(b), Rights shall be
issued by the Company in respect of shares of Common Stock that are issued or
sold by the Company after the Separation Time.
(b) In the event the Company shall at any time after the Record Time
and prior to the Separation Time issue or distribute any securities or assets in
respect of, in lieu of or in exchange for Common Stock (other than pursuant to a
regular periodic cash dividend or a dividend paid solely in Common Stock)
whether by dividend, in a reclassification or recapitalization (including any
such transaction involving a merger, consolidation or share exchange), or
otherwise, the Company shall make such adjustments, if any, in the Exercise
Price, number of Rights and/or securities or other property purchasable upon
exercise of Rights as the Board of Directors of the Company, in its sole
discretion, may deem to be appropriate under the circumstances in order to
adequately protect the interests of the holders of Rights generally, and the
Company and the Rights Agent shall amend this Agreement as necessary to provide
for such adjustments.
(c) Each adjustment to the Exercise Price made pursuant to this Section
2.4 shall be calculated to the nearest cent. Whenever an adjustment to the
Exercise Price is made pursuant to this Section 2.4, the Company shall
-16-
(i) promptly prepare a certificate setting forth such adjustment and a brief
statement of the facts accounting for such adjustment and (ii) promptly file
with the Rights Agent and with each transfer agent for the Common Stock a copy
of such certificate.
(d) Rights Certificates shall represent the securities purchasable
under the terms of this Agreement, including any adjustment or change in the
securities purchasable upon exercise of the Rights, even though such
certificates may continue to express the securities purchasable at the time of
issuance of the initial Rights Certificates.
2.5 Date on Which Exercise is Effective. Each person in whose name any
shares are issued upon the exercise of Rights shall for all purposes be deemed
to have become the holder of record of the shares on the date upon which the
Rights Certificate evidencing such Rights was duly surrendered and payment of
the Exercise Price for such Rights (and any applicable taxes and other
governmental charges payable by the exercising holder hereunder) was made;
provided, however, that if the date of such surrender and payment is a date upon
which the stock transfer books of the Company are closed, such person shall be
deemed to have become the record holder of such shares on, and such certificate
shall be dated, the next succeeding Business Day on which the stock transfer
books of the Company are open.
2.6 Execution, Authentication, Delivery and Dating of Rights
Certificates. (a) The Rights Certificates shall be executed on behalf of the
Company by its Chairman of the Board, President, Chief Executive Officer or one
of its Vice Chairmen, under its corporate seal reproduced thereon attested by
its Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Rights Certificates may be manual or facsimile.
Rights Certificates bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have
-17-
ceased to hold such offices prior to the countersignature and delivery of such
Rights Certificates.
Promptly after the Company learns of the Separation Time, the Company
will notify the Rights Agent of such Separation Time and will deliver Rights
Certificates executed by the Company to the Rights Agent for countersignature,
and, subject to Section 3.1(b), the Rights Agent shall manually countersign and
deliver such Rights Certificates to the holders of the Rights pursuant to
Section 2.3(c) hereof. No Rights Certificate shall be valid for any purpose
unless manually countersigned by the Rights Agent.
(b) Each Rights Certificate shall be dated the date of countersignature
thereof.
2.7 Registration, Registration of Transfer and Exchange. (a) After the
Separation Time, the Company will cause to be kept a register (the "Rights
Register") in which, subject to such reasonable regulations as it may prescribe,
the Company will provide for the registration and transfer of Rights. The Rights
Agent is hereby appointed "Rights Registrar" for the purpose of maintaining the
Rights Register for the Company and registering Rights and transfers of Rights
after the Separation Time as herein provided, provided that the Rights Agent is
hereby authorized to appoint ChaseMellon Shareholder Services, L.L.C. as Rights
Registrar (in which capacity such Rights Registrar shall be entitled to the
benefits of Article IV hereof as if it were Rights Agent). In the event that the
Rights Agent shall cease to be the Rights Registrar, the Rights Agent will have
the right to examine the Rights Register at all reasonable times after the
Separation Time.
After the Separation Time and prior to the Expiration Time, upon
surrender for registration of transfer or exchange of any Rights Certificate,
and subject to the provisions of Section 2.7(c) and (d), the Company will
execute, and the Rights Agent will countersign and deliver, in the name of the
holder or the designated transferee or transferees, as required pursuant to the
holder's instructions, one or more new Rights Certificates evidencing the
-18-
same aggregate number of Rights as did the Rights Certificate so surrendered.
(b) Except as otherwise provided in Section 3.1(b), all Rights issued
upon any registration of transfer or exchange of Rights Certificates shall be
the valid obligations of the Company, and such Rights shall be entitled to the
same benefits under this Agreement as the Rights surrendered upon such
registration of transfer or exchange.
(c) Every Rights Certificate surrendered for registration of transfer
or exchange shall be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company or the Rights Agent, as the case
may be, duly executed by the holder thereof or such holder's attorney duly
authorized in writing. As a condition to the issuance of any new Rights
Certificate under this Section 2.7, the Company may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto.
(d) The Company shall not be required to register the transfer or
exchange of any Rights after such Rights have become void under Section 3.1(b),
been exchanged under Section 3.1(c) or been redeemed or terminated under Section
5.1.
2.8 Mutilated, Destroyed, Lost and Stolen Rights Certificates. (a) If
any mutilated Rights Certificate is surrendered to the Rights Agent prior to the
Expiration Time, then, subject to Sections 3.1(b), 3.1(c) and 5.1, the Company
shall execute and the Rights Agent shall countersign and deliver in exchange
therefor a new Rights Certificate evidencing the same number of Rights as did
the Rights Certificate so surrendered.
(b) If there shall be delivered to the Company and the Rights Agent
prior to the Expiration Time (i) evidence to their satisfaction of the
destruction, loss or theft of any Rights Certificate and (ii) such security or
indemnity as may be required by them to save each of them and any of their
agents harmless, then, subject to Sections
-19-
3.1(b), 3.1(c) and 5.1 and in the absence of notice to the Company or the Rights
Agent that such Rights Certificate has been acquired by a bona fide purchaser,
the Company shall execute and upon its request the Rights Agent shall
countersign and deliver, in lieu of any such destroyed, lost or stolen Rights
Certificate, a new Rights Certificate evidencing the same number of Rights as
did the Rights Certificate so destroyed, lost or stolen.
(c) As a condition to the issuance of any new Rights Certificate under
this Section 2.8, the Company may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Rights
Agent) connected therewith.
(d) Every new Rights Certificate issued pursuant to this Section 2.8 in
lieu of any destroyed, lost or stolen Rights Certificate shall evidence an
original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Rights Certificate shall be at any time enforceable by
anyone, and subject to Section 3.1(b), shall be entitled to all the benefits of
this Agreement equally and proportionately with any and all other Rights duly
issued hereunder.
2.9 Persons Deemed Owners. Prior to due presentment of a Rights
Certificate (or, prior to the Separation Time, the associated Common Stock
certificate for certificated shares or duly completed transfer instructions for
uncertificated shares) for registration of transfer, the Company, the Rights
Agent and any agent of the Company or the Rights Agent may deem and treat the
person in whose name such Rights Certificate (or, prior to the Separation Time,
such share of Common Stock) is registered as the absolute owner thereof and of
the Rights evidenced thereby (or associated therewith) for all purposes
whatsoever, including the payment of the Redemption Price, and neither the
Company nor the Rights Agent shall be affected by any notice to the contrary. As
used in this Agreement, unless the context otherwise requires, the term "holder"
of any Rights shall mean the registered holder of such Rights (or, prior to the
Separation Time, the associated shares of Common Stock).
-20-
2.10 Delivery and Cancellation of Certificates. All Rights Certificates
surrendered upon exercise or for redemption, registration of transfer or
exchange shall, if surrendered to any person other than the Rights Agent, be
delivered to the Rights Agent and, in any case, shall be promptly cancelled by
the Rights Agent. The Company may at any time deliver to the Rights Agent for
cancellation any Rights Certificates previously countersigned and delivered
hereunder which the Company may have acquired in any manner whatsoever, and all
Rights Certificates so delivered shall be promptly cancelled by the Rights
Agent. No Rights Certificates shall be countersigned in lieu of or in exchange
for any Rights Certificates cancelled as provided in this Section 2.10, except
as expressly permitted by this Agreement. The Rights Agent shall destroy all
cancelled Rights Certificates and deliver a certificate of destruction to the
Company.
2.11 Agreement of Rights Holders. Every holder of Rights by accepting
the same consents and agrees with the Company and the Rights Agent and with
every other holder of Rights that:
(a) prior to the Separation Time, each Right will be transferable only
together with, and will be transferred by a transfer of, the associated
share of Common Stock;
(b) after the Separation Time, the Rights Certificates will be
transferable only on the Rights Register as provided herein;
(c) prior to due presentment of a Rights Certificate (or, prior to the
Separation Time, the associated Common Stock certificate for certificated
shares or duly completed transfer instructions for uncertificated shares)
for registration of transfer, the Company, the Rights Agent and any agent
of the Company or the Rights Agent may deem and treat the person in whose
name such Rights Certificate (or, prior to the Separation Time, such share
of Common Stock) is registered as the absolute owner thereof and of the
Rights evidenced thereby (or associated therewith) for all purposes
-21-
whatsoever, and neither the Company nor the Rights Agent shall be affected
by any notice to the contrary;
(d) Rights beneficially owned by certain Persons will, under the
circumstances set forth in Section 3.1(b), become void; and
(e) this Agreement may be supplemented or amended from time to time
pursuant to Section 2.4(b) or 5.4 hereof.
ARTICLE III
ADJUSTMENTS TO THE RIGHTS
IN THE EVENT OF CERTAIN TRANSACTIONS
------------------------------------
3.1 Flip-in. (a) In the event that prior to the Expiration Time a
Flip-in Date shall occur, except as provided in this Section 3.1, each Right
shall constitute the right to purchase from the Company, upon exercise thereof
in accordance with the terms hereof (but subject to Section 5.10), that number
of shares of Common Stock having an aggregate Market Price on the Stock
Acquisition Date equal to twice the Exercise Price for an amount in cash equal
to the Exercise Price (such right to be appropriately adjusted in order to
protect the interests of the holders of Rights generally in the event that on or
after such Stock Acquisition Date an event of a type analogous to any of the
events described in Section 2.4(a) or (b) shall have occurred with respect to
the Common Stock).
(b) Notwithstanding the foregoing, any Rights that are or were
Beneficially Owned, on or after the Stock Acquisition Date on which an Acquiring
Person became such, by such Acquiring Person or by an Affiliate or Associate
thereof or by any transferee, direct or indirect, of any of the foregoing shall
become void and any holder of such Rights (including transferees) shall
thereafter have no right to exercise or transfer such Rights under any provision
of this Agreement. If any Rights Certificate is presented for assignment or
exercise and the Person presenting the same will not complete the certification
set forth at the end of the form of assignment or notice of election
-22-
to exercise and provide such additional evidence of the identity of the
Beneficial Owner and its Affiliates and Associates (or former Beneficial Owners
and their Affiliates and Associates) as the Company shall reasonably request,
then the Company shall be entitled conclusively to deem the Beneficial Owner
thereof to be an Acquiring Person or an Affiliate or Associate thereof or a
transferee of any of the foregoing and accordingly will deem the Rights
evidenced thereby to be void and not transferable or exercisable.
(c) The Board of Directors of the Company may, at its option, at any
time after a Flip-in Date, to the fullest extent that applicable law would not
prohibit Rights owned by certain Persons referred to in Section 3.1(b) becoming
void pursuant to the provisions thereof, elect to exchange all (but not less
than all) the then outstanding Rights (which shall not include Rights that have
become void pursuant to the provisions of Section 3.1(b)) for shares of Common
Stock at an exchange ratio of one share of Common Stock per Right, appropriately
adjusted in order to protect the interests of holders of Rights generally in the
event that after the Separation Time an event of a type analogous to any of the
events described in Section 2.4(a) or (b) shall have occurred with respect to
the Common Stock (such exchange ratio, as adjusted from time to time, being
hereinafter referred to as the "Exchange Ratio").
Immediately upon the action of the Board of Directors of the Company
electing to exchange the Rights, without any further action and without any
notice, the right to exercise the Rights will terminate and each Right (other
than Rights that have become void pursuant to Section 3.1(b)) will thereafter
represent only the right to receive a number of shares of Common Stock equal to
the Exchange Ratio. Promptly after the action of the Board of Directors electing
to exchange the Rights, the Company shall give notice thereof (specifying the
steps to be taken to receive shares of Common Stock in exchange for Rights) to
the Rights Agent and the holders of the Rights (other than Rights that have
become void pursuant to Section 3.1(b)) outstanding immediately prior thereto by
mailing such notice in accordance with Section 5.9.
-23-
Each Person in whose name any shares are issued upon the exchange of
Rights pursuant to this Section 3.1(c) or Section 3.1(d) shall for all purposes
be deemed to have become the holder of record of the shares on, and any
certificate or confirmation or advice of issuance relating to such shares shall
be dated, the date upon which the Rights Certificate evidencing such Rights was
duly surrendered and payment of any applicable taxes and other governmental
charges payable by the holder was made; provided, however, that if the date of
such surrender and payment is a date upon which the stock transfer books of the
Company are closed, such Person shall be deemed to have become the record holder
of such shares on, and any such certificate, advice or confirmation shall be
dated, the next succeeding Business Day on which the stock transfer books of the
Company are open.
(d) Whenever the Company shall become obligated under Section 3.1(a) or
(c) to issue shares of Common Stock upon exercise of or in exchange for Rights,
the Company, at its option, may substitute therefor shares of Participating
Preferred Stock, at a ratio of one one-hundredth of a share of Participating
Preferred Stock for each share of Common Stock so issuable.
(e) In the event that there shall not be sufficient treasury shares or
authorized but unissued shares of Common Stock or Participating Preferred Stock
of the Company to permit the exercise or exchange in full of the Rights in
accordance with Section 3.1(a) or (c), and the Company elects not to, or is
otherwise unable to, make the exchange referred to in Section 3.1(c), the
Company shall take such action as shall be necessary to ensure and provide, to
the extent permitted by applicable law and any agreements or instruments in
effect on the Stock Acquisition Date to which it is a party, that each Right
shall there after constitute the right to receive, (x) at the Company's option,
either (A) in return for the Exercise Price, debt or equity securities or other
assets (or a combination thereof) having a fair value equal to twice the
Exercise Price, or (B) without payment of consideration (except as otherwise
required by applicable law), debt or equity securities or other assets (or a
combination thereof) having a fair value
-24-
equal to the Exercise Price, or (y) if the Board of Directors of the Company
elects to exchange the Rights in accordance with Section 3.1(c), debt or equity
securities or other assets (or a combination thereof) having a fair value equal
to the product of the Market Price of a share of Common Stock on the Flip-in
Date times the Exchange Ratio in effect on the Flip-in Date, where in any case
set forth in (x) or (y) above the fair value of such debt or equity securities
or other assets shall be as determined in good faith by the Board of Directors
of the Company, after consultation with a nationally recognized investment
banking firm.
3.2 Flip-over. (a) Prior to the Expiration Time, the Company shall not
enter into any agreement with an Acquiring Person with respect to, consummate or
permit to occur any Flip-over Transaction or Event unless and until it shall
have entered into a supplemental agreement with the Flip-over Entity, for the
benefit of the holders of the Rights, providing that, upon consummation or
occurrence of the Flip-over Transaction or Event (i) each Right shall thereafter
constitute the right to purchase from the Flip-over Entity, upon exercise
thereof in accordance with the terms hereof, that number of shares of Flip-over
Stock of the Flip-over Entity having an aggregate Market Price on the date of
consummation or occurrence of such Flip-over Transaction or Event equal to
twice the Exercise Price for an amount in cash equal to the Exercise Price (such
right to be appropriately adjusted in order to protect the interests of the
holders of Rights generally in the event that after such date of consummation or
occurrence an event of a type analogous to any of the events described in
Section 2.4(a) or (b) shall have occurred with respect to the Flip-over Stock)
and (ii) the Flip-over Entity shall thereafter be liable for, and shall assume,
by virtue of such Flip-over Transaction or Event and such supplemental
agreement, all the obligations and duties of the Company pursuant to this
Agreement. The provisions of this Section 3.2 shall apply to successive
Flip-over Transactions or Events.
(b) Prior to the Expiration Time, unless the Rights will be redeemed
pursuant to Section 5.1 hereof in connection therewith, the Company shall not
enter into any
-25-
agreement with respect to, consummate or permit to occur any Flip-over
Transaction or Event if at the time thereof there are any rights, warrants or
securities outstanding or any other arrangements, agreements or instruments
which would eliminate or otherwise diminish in any material respect the benefits
intended to be afforded by this Rights Agreement to the holders of Rights upon
consummation of such transaction.
ARTICLE IV
THE RIGHTS AGENT
----------------
4.1 General. (a) The Company hereby appoints the Rights Agent to act as
agent for the Company in accordance with the terms and conditions hereof, and
the Rights Agent hereby accepts such appointment. The Company agrees to pay to
the Rights Agent reasonable compensation for all services rendered by it
hereunder and, from time to time, on demand of the Rights Agent, its reasonable
expenses and counsel fees and other disbursements incurred in the administration
and execution of this Agreement and the exercise and performance of its duties
hereunder. The Company also agrees to indemnify the Rights Agent for, and to
hold it harmless against, any loss, liability, or expense, incurred without
negligence, bad faith or willful misconduct on the part of the Rights Agent, for
anything done or omitted to be done by the Rights Agent in connection with the
acceptance and administration of this Agreement, including the costs and
expenses of defending against any claim of liability.
(b) The Rights Agent shall be protected and shall incur no liability
for or in respect of any action taken, suffered or omitted by it in connection
with its administration of this Agreement in reliance upon any certificate for
securities purchasable upon exercise of Rights, Rights Certificate, certificate
for other securities of the Company, instrument of assignment or transfer, power
of attorney, endorsement, affidavit, letter, notice, direction, consent,
certificate, statement, or other paper or document believed by it to be genuine
and to be signed, executed and, where necessary, verified or acknowledged, by
the proper person or persons.
-26-
4.2 Merger or Consolidation or Change of Name of Rights Agent. (a) Any
corporation into which the Rights Agent or any successor Rights Agent may be
merged or with which it may be consolidated, or any corporation resulting from
any merger or consolidation to which the Rights Agent or any successor Rights
Agent is a party, will be the successor to the Rights Agent under this Agreement
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, provided that such corporation would be eligible for
appointment as a successor Rights Agent under the provisions of Section 4.4
hereof. In case at the time such successor Rights Agent succeeds to the agency
created by this Agreement any of the Rights Certificates have been countersigned
but not delivered, any such successor Rights Agent may adopt the
countersignature of the predecessor Rights Agent and deliver such Rights
Certificates so countersigned; and in case at that time any of the Rights
Certificates have not been countersigned, any successor Rights Agent may
countersign such Rights Certificates either in the name of the predecessor
Rights Agent or in the name of the successor Rights Agent; and in all such cases
such Rights Certificates will have the full force provided in the Rights
Certificates and in this Agreement.
(b) In case at any time the name of the Rights Agent is changed and at
such time any of the Rights Certificates shall have been countersigned but not
delivered, the Rights Agent may adopt the countersignature under its prior name
and deliver Rights Certificates so countersigned; and in case at that time any
of the Rights Certificates shall not have been countersigned, the Rights Agent
may countersign such Rights Certificates either in its prior name or in its
changed name; and in all such cases such Rights Certificates shall have the full
force provided in the Rights Certificates and in this Agreement.
4.3 Duties of Rights Agent. The Rights Agent undertakes the duties and
obligations imposed by this Agreement upon the following terms and conditions,
by all of which the Company and the holders of Rights Certificates, by their
acceptance thereof, shall be bound:
-27-
(a) The Rights Agent may consult with legal counsel (who may be legal
counsel for the Company), and the opinion of such counsel will be full and
complete authorization and protection to the Rights Agent as to any action
taken or omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Agreement the
Rights Agent deems it necessary or desirable that any fact or matter be
proved or established by the Company prior to taking or suffering any
action hereunder, such fact or matter (unless other evidence in respect
thereof be herein specifically prescribed) may be deemed to be conclusively
proved and established by a certificate signed by a person believed by the
Rights Agent to be the Chairman of the Board, the President, the Chief
Executive Officer or any Vice Chairman and by the Treasurer or any
Assistant Treasurer or the Secretary or any Assistant Secretary of the
Company and delivered to the Rights Agent; and such certificate will be
full authorization to the Rights Agent for any action taken or suffered in
good faith by it under the provisions of this Agreement in reliance upon
such certificate.
(c) The Rights Agent will be liable hereunder only for its own
negligence, bad faith or willful misconduct.
(d) The Rights Agent will not be liable for or by reason of any of the
statements of fact or recitals contained in this Agreement or in the
certificates for securities purchasable upon exercise of Rights or the
Rights Certificates (except its countersignature thereof) or be required to
verify the same, but all such statements and recitals are and will be
deemed to have been made by the Company only.
(e) The Rights Agent will not be under any responsibility in respect of
the validity of this Agreement or the execution and delivery hereof (except
the due authorization, execution and delivery hereof by the Rights Agent)
or in respect of the validity or
-28-
execution of any certificate for securities purchasable upon exercise of
Rights or Rights Certificates (except its countersignature thereof); nor
will it be responsible for any breach by the Company of any covenant or
condition contained in this Agreement or in any Rights Certificate; nor
will it be responsible for any change in the exercisability of the Rights
(including the Rights becoming void pursuant to Section 3.1(b) hereof) or
any adjustment required under the provisions of Section 2.4, 3.1 or 3.2
hereof or responsible for the manner, method or amount of any such
adjustment or the ascertaining of the existence of facts that would require
any such adjustment (except with respect to the exercise of Rights after
receipt of the certificate contemplated by Section 2.4 describing any such
adjustment); nor will it by any act hereunder be deemed to make any
representation or warranty as to the authorization or reservation of any
securities purchasable upon exercise of Rights or any Rights or as to
whether any securities purchasable upon exercise of Rights will, when
issued, be duly and validly authorized, executed, issued and delivered and
fully paid and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged and delivered all
such further and other acts, instruments and assurances as may reasonably
be required by the Rights Agent for the carrying out or performing by the
Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from
any person believed by the Rights Agent to be the Chairman of the Board,
the President, Chief Executive Officer or any Vice Chairman or the
Secretary or any Assistant Secretary or the Treasurer or any Assistant
Treasurer of the Company, and to apply to such persons for advice or
instructions in connection with its duties, and it shall not be liable for
any action taken or suffered by
-29-
it in good faith in accordance with instructions of any such person.
(h) The Rights Agent and any shareholder, director, officer or
employee of the Rights Agent may buy, sell or deal in Common Stock, Rights
or other securities of the Company or become pecuniarily interested in any
transaction in which the Company may be interested, or contract with or
lend money to the Company or otherwise act as fully and freely as though it
were not Rights Agent under this Agreement. Nothing herein shall preclude
the Rights Agent from acting in any other capacity for the Company or for
any other legal entity.
(i) The Rights Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either itself or
by or through its attorneys or agents, and the Rights Agent will not be
answerable or accountable for any act, default, neglect or misconduct of
any such attorneys or agents or for any loss to the Company resulting from
any such act, default, neglect or misconduct, provided reasonable care was
exercised in the selection and continued employment thereof.
4.4 Change of Rights Agent. The Rights Agent may resign and be
discharged from its duties under this Agreement upon 90 days' notice (or such
lesser notice as is acceptable to the Company) in writing mailed to the Company
and to each transfer agent of Common Stock by registered or certified mail, and
to the holders of the Rights in accordance with Section 5.9. The Company may
remove the Rights Agent upon 30 days' notice in writing, mailed to the Rights
Agent and to each transfer agent of the Common Stock by registered or certified
mail, and to the holders of the Rights in accordance with Section 5.9. If the
Rights Agent should resign or be removed or otherwise become incapable of
acting, the Company will appoint a successor to the Rights Agent. If the Company
fails to make such appointment within a period of 30 days after such removal or
after it has been notified in writing of such resignation or incapacity by the
resigning or incapacitated Rights Agent or by the holder of
-30-
any Rights (which holder shall, with such notice, submit such holder's Rights
Certificate for inspection by the Company), then the holder of any Rights may
apply to any court of competent jurisdiction for the appointment of a new Rights
Agent. Any successor Rights Agent, whether appointed by the Company or by such a
court, shall be a corporation organized and doing business under the laws of the
United States or of the Commonwealth of Pennsylvania, in good standing, having
its principal office in the Commonwealth of Pennsylvania, which is authorized
under such laws to exercise the powers of the Rights Agent contemplated by this
Agreement and is subject to supervision or examination by federal or state
authority and which has at the time of its appointment as Rights Agent a
combined capital and surplus of at least $50,000,000. After appointment, the
successor Rights Agent will be vested with the same powers, rights, duties and
responsibilities as if it had been originally named as Rights Agent without
further act or deed; but the predecessor Rights Agent shall deliver and transfer
to the successor Rights Agent any property at the time held by it hereunder, and
execute and deliver any further assurance, conveyance, act or deed necessary for
the purpose. Not later than the effective date of any such appointment, the
Company will file notice thereof in writing with the predecessor Rights Agent
and each transfer agent of the Common Stock, and mail a notice thereof in
writing to the holders of the Rights. Failure to give any notice provided for in
this Section 4.4, however, or any defect therein, shall not affect the legality
or validity of the resignation or removal of the Rights Agent or the appointment
of the successor Rights Agent, as the case may be.
ARTICLE V
MISCELLANEOUS
-------------
5.1 Redemption. (a) The Board of Directors of the Company may, at its
option, at any time prior to the close of business on the Flip-In Date, elect to
redeem all (but not less than all) the then outstanding Rights at the Redemption
Price and the Company, at its option, may pay the Redemption Price either in
cash or shares of Common Stock or other securities of the Company deemed by the
Board of
-31-
Directors, in the exercise of its sole discretion, to be at least equivalent in
value to the Redemption Price.
(b) Immediately upon the action of the Board of Directors of the
Company electing to redeem the Rights (or, if the resolution of the Board of
Directors electing to redeem the Rights states that the redemption will not be
effective until the occurrence of a specified future time or event, upon the
occurrence of such future time or event), without any further action and without
any notice, the right to exercise the Rights will terminate and each Right will
thereafter represent only the right to receive the Redemption Price in cash or
securities, as determined by the Board of Directors. Promptly after the Rights
are redeemed, the Company shall give notice of such redemption to the Rights
Agent and the holders of the then outstanding Rights by mailing such notice in
accordance with Section 5.9.
5.2 Expiration. The Rights and this Agreement shall expire at the
Expiration Time and no Person shall have any rights pursuant to this Agreement
or any Right after the Expiration Time, except, if the Rights are exchanged or
redeemed, as provided in Section 3.1(c), 3.1(d), 3.1(e) or 5.1.
5.3 Issuance of New Rights Certificates. (a) Notwithstanding any of
the provisions of this Agreement or of the Rights to the contrary, the Company
may, at its option, issue new Rights Certificates evidencing Rights in such form
as may be approved by its Board of Directors to reflect any adjustment or change
in the number or kind or class of shares of stock purchasable upon exercise of
Rights made in accordance with the provisions of this Agreement.
(b) In addition, in connection with the issuance or sale of shares of
Common Stock by the Company following the Separation Time and prior to the
Expiration Time pursuant to the terms of securities convertible or redeemable
into shares of Common Stock or to options, in each case issued or granted prior
to, and outstanding at, the Separation Time, the Company shall issue to the
holders of such shares of Common Stock, Rights Certificates representing the
appropriate number of Rights in connection
-32-
with the issuance or sale of such shares of Common Stock; provided, however, in
each case, (i) no such Rights Certificate shall be issued, if, and to the extent
that, the Company shall be advised by counsel that such issuance would create a
significant risk of material adverse tax consequences to the Company or to the
Person to whom such Rights Certificates would be issued, (ii) no such Rights
Certificates shall be issued if, and to the extent that, appropriate adjustment
shall have otherwise been made in lieu of the issuance thereof, and (iii) the
Company shall have no obligation to distribute Rights Certificates to any
Acquiring Person or Affiliate or Associate of an Acquiring Person or any
transferee of any of the foregoing.
5.4 Supplements and Amendments. The Company and the Rights Agent may
from time to time supplement or amend this Agreement without the approval of any
holders of Rights (i) in any respect prior to the Flip-in Date, (ii) to make any
changes on or after the Flip-in Date that the Company may deem necessary or
desirable and which shall not materially adversely affect the interests of the
holders of Rights generally or (iii) in order to cure any ambiguity or to
correct or supplement any provision contained herein which may be inconsistent
with any other provisions herein or otherwise defective. The Rights Agent will
duly execute and deliver any supplement or amendment hereto requested by the
Company which satisfies the terms of the preceding sentence.
5.5 Fractional Shares. If the Company elects not to issue fractional
shares upon exercise or redemption of Rights, the Company shall, in lieu
thereof, (a) evidence such fractional shares by depositary receipts issued
pursuant to an appropriate agreement between the Company and a depositary
selected by it, provided that such agreement shall provide that each holder of a
depositary receipt shall have all of the rights, privileges and preferences to
which he would be entitled as a beneficial owner of such fractional share, or
(b) pay to the registered holder of such Rights the appropriate fraction of the
Market Price per share in cash.
5.6 Rights of Action. Subject to the terms of this Agreement, rights of
action in respect of this
-33-
Agreement, other than rights of action vested solely in the Rights Agent, are
vested in the respective holders of the Rights; and any holder of any Rights,
without the consent of the Rights Agent or of the holder of any other Rights,
may, on such holder's own behalf and for such holder's own benefit and the
benefit of other holders of Rights, enforce, and may institute and maintain any
suit, action or proceeding against the Company to enforce, or otherwise act in
respect of, such holder's right to exercise such holder's Rights in the manner
provided in such holder's Rights Certificate and in this Agreement. Without
limiting the foregoing or any remedies available to the holders of Rights, it is
specifically acknowledged that the holders of Rights would not have an adequate
remedy at law for any breach of this Agreement and will be entitled to specific
performance of the obligations under, and injunctive relief against actual or
threatened violations of the obligations of any Person subject to, this
Agreement.
5.7 Holder of Rights Not Deemed a Shareholder. No holder, as such, of
any Rights shall be entitled to vote, receive dividends or be deemed for any
purpose the holder of shares or any other securities which may at any time be
issuable on the exercise of such Rights, nor shall anything contained herein or
in any Rights Certificate be construed to confer upon the holder of any Rights,
as such, any of the rights of a shareholder of the Company or any right to vote
for the election of directors or upon any matter submitted to shareholders at
any meeting thereof, or to give or with hold consent to any corporate action, or
to receive notice of meetings or other actions affecting shareholders (except as
provided in Section 5.8 hereof), or to receive dividends or subscription rights,
or otherwise, until such Rights shall have been exercised or exchanged in
accordance with the provisions hereof.
5.8 Notice of Proposed Actions. In case the Company shall propose after
the Separation Time and prior to the Expiration Time (i) to effect or permit (in
cases where the Company's permission is required) occurrence of any Flip-in Date
or Flip-over Transaction or Event or (ii) to effect the liquidation, dissolution
or winding up of the Company, then, in each such case, the Company shall give to
-34-
each holder of a Right, in accordance with Section 5.9 hereof, a notice of such
proposed action, which shall specify the Flip-in Date or the date on which such
Flip-over Transaction or Event, liquidation, dissolution, or winding up is to
take place, and such notice shall be so given at least 20 Business Days prior to
the date of the taking of such proposed action.
5.9 Notices. Notices or demands authorized or required by this
Agreement to be given or made by the Rights Agent or by the holder of any Rights
to or on the Company shall be sufficiently given or made if delivered or sent by
first-class mail, postage prepaid, addressed (until another address is filed in
writing with the Rights Agent) as follows:
Mellon Financial Corporation
Xxx Xxxxxx Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: General Counsel
Any notice or demand authorized or required by this Agreement to be given or
made by the Company or by the holder of any Rights to or on the Rights Agent
shall be sufficiently given or made if delivered or sent by first-class mail,
postage prepaid, addressed (until another address is filed in writing with the
Company) as follows:
Mellon Bank, N.A.
One Mellon Bank Center
Room 4826
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Corporate Secretarial Services
Notices or demands authorized or required by this Agreement to be given or made
by the Company or the Rights Agent to or on the holder of any Rights shall be
sufficiently given or made if delivered or sent by first-class mail, postage
prepaid, addressed to such holder at the address of such holder as it appears
upon the registry books of the Rights Agent or, prior to the Separation Time, on
the registry
-35-
books of the transfer agent for the Common Stock, as the case may be. Any notice
which is mailed in the manner herein provided shall be deemed given, whether or
not the holder receives the notice.
5.10 Suspension of Exercisability or Exchangeability. To the extent
that the Company determines in good faith that some action will or need be taken
pursuant to Section 3.1(c) or (e) or to comply with federal or state securities
laws, the Company may suspend the exercisability or exchangeability of the
Rights for a reasonable period of up to ninety (90) days following the date of
the occurrence of the Separation Time or the Flip-in Date in order to take such
action or comply with such laws. In the event of any such suspension, the
Company shall issue as promptly as practicable a public announcement stating
that the exercisability or exchangeability of the Rights has been temporarily
suspended. Notice thereof pursuant to Section 5.9 shall not be required.
Failure to give a notice pursuant to the provisions of this Agreement
shall not affect the validity of any action taken hereunder.
5.11 Costs of Enforcement. The Company agrees that if the Company or
any other Person the securities of which are purchasable upon exercise of Rights
fails to fulfill any of its obligations pursuant to this Agreement, then the
Company or such Person will reimburse the holder of any Rights for the costs and
expenses (including legal fees) incurred by such holder in actions to enforce
such holder's rights pursuant to any Rights or this Agreement.
5.12 Successors. All the covenants and provisions of this Agreement by
or for the benefit of the Company or the Rights Agent shall bind and inure to
the benefit of their respective successors and assigns hereunder.
5.13 Benefits of this Agreement. Nothing in this Agreement shall be
construed to give to any Person other than the Company, the Rights Agent and the
holders of the Rights any legal or equitable right, remedy or claim under this
Agreement; but this Agreement shall be for the sole and
-36-
exclusive benefit of the Company, the Rights Agent and the holders of the
Rights.
5.14 Determination and Actions by the Board of Directors, etc. The
Board of Directors of the Company shall have the exclusive power and authority
to administer this Agreement and to exercise all rights and powers specifically
granted to the Board or to the Company, or as may be necessary or advisable in
the administration of this Agreement, including, without limitation, the right
and power to (i) interpret the provisions of this Agreement and (ii) make all
determinations deemed necessary or advisable for the administration of this
Agreement. All such actions, calculations, interpretations and determinations
(including, for purposes of clause (y) below, all omissions with respect to the
foregoing) which are done or made by the Board in good faith, shall (x) be
final, conclusive and binding on the Company, the Rights Agent, the holders of
the Rights and all other parties and (y) not subject the Board of Directors of
the Company to any liability to the holders of the Rights.
5.15 Descriptive Headings. Descriptive headings appear herein for
convenience only and shall not control or affect the meaning or construction of
any of the provisions hereof.
5.16 GOVERNING LAW. THIS AGREEMENT AND EACH RIGHT ISSUED HEREUNDER
SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE COMMONWEALTH OF
PENNSYLVANIA AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF SUCH STATE APPLICABLE TO CONTRACTS TO BE MADE AND
PERFORMED ENTIRELY WITHIN SUCH STATE.
5.17 Counterparts. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
5.18 Severability. If any term or provision hereof or the application
thereof to any circumstance shall, in any jurisdiction and to any extent, be
invalid or unenforceable, such term or provision shall be ineffective as to
-37-
such jurisdiction to the extent of such invalidity or unenforceability without
invalidating or rendering unenforceable the remaining terms and provisions
hereof or the application of such term or provision to circumstances other than
those as to which it is held invalid or unenforceable.
-38-
EXHIBIT A
[FORM OF RIGHTS CERTIFICATE]
Certificate No. W- ________ Rights
THE RIGHTS ARE SUBJECT TO REDEMPTION OR MANDATORY EXCHANGE, AT THE
OPTION OF THE COMPANY, ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT.
RIGHTS BENEFICIALLY OWNED BY ACQUIRING PERSONS OR AFFILIATES OR
ASSOCIATES THEREOF (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT)
OR TRANSFEREES OF ANY OF THE FOREGOING WILL BE VOID.
Rights Certificate
MELLON FINANCIAL CORPORATION
This certifies that ______________________, or registered assigns, is
the registered holder of the number of Rights set forth above, each of which
entitles the registered holder thereof, subject to the terms, provisions and
conditions of the Amended and Restated Shareholder Protection Rights Agreement,
dated as of October 15, 1996 and amended and restated as of October 19, 1999 (as
further amended from time to time, the "Rights Agreement"), between Mellon
Financial Corporation, a Pennsylvania corporation (the "Company"), and Mellon
Bank, N.A., a national banking association, as Rights Agent (the "Rights Agent",
which term shall include any successor Rights Agent under the Rights Agreement),
to purchase from the Company at any time after the Separation Time (as such term
is defined in the Rights Agreement) and prior to the close of business on
October 31, 2006, one one-hundredth of a fully paid share of Participating
Preferred Stock, par value $1.00 per share (the "Participating Preferred
Stock"), of the Company (subject to adjustment as provided in the Rights
Agreement) at the Exercise Price referred to below, upon presentation and
surrender of this Rights Certificate with the Form of Election to Exercise duly
executed at the designated office of the Rights Agent. As of the date of the
Separation Time,
the Exercise Price was $_______* per Right, which is subject to adjustment in
certain events as provided in the Rights Agreement.
In certain circumstances described in the Rights Agreement, the Rights
evidenced hereby may entitle the registered holder thereof to purchase
securities of an entity other than the Company or securities or assets of the
Company other than Participating Preferred Stock, all as provided in the Rights
Agreement.
This Rights Certificate is subject to all of the terms, provisions and
conditions of the Rights Agreement, which terms, provisions and conditions are
hereby incorporated herein by reference and made a part hereof and to which
Rights Agreement reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities hereunder of the
Rights Agent, the Company and the holders of the Rights Certificates. Copies of
the Rights Agreement are on file at the principal office of the Company and are
available without cost upon written request.
This Rights Certificate, with or without other Rights Certificates,
upon surrender at the office of the Rights Agent designated for such purpose,
may be exchanged for another Rights Certificate or Rights Certificates of like
tenor evidencing an aggregate number of Rights equal to the aggregate number of
Rights evidenced by the Rights Certificate or Rights Certificates surrendered.
If this Rights Certificate shall be exercised in part, the registered holder
shall be entitled to receive, upon surrender hereof, another Rights Certificate
or Rights Certificates for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights evidenced
by this Certificate may be (a) redeemed by the Company under certain
circumstances at its option (as of the date of the Separation Time, the
redemption price
--------
* Insert an amount equal to the Exercise Price as of the
date of the Separation Time.
-2-
was $_____* per Right, which is subject to adjustment in certain circumstances
as provided in the Rights Agreement) or (b) exchanged by the Company under
certain circumstances at its option for one share of Common Stock or one
one-hundredth of a share of Participating Preferred Stock per Right (or, in
certain cases, other securities or assets of the Company), subject in each case
to adjustment in certain events as provided in the Rights Agreement.
No holder of this Rights Certificate, as such, shall be entitled to
vote or receive dividends or be deemed for any purpose the holder of any
securities which may at any time be issuable on the exercise hereof, nor shall
anything contained in the Rights Agreement or herein be construed to confer upon
the holder hereof, as such, any of the rights of a shareholder of the Company or
any right to vote for the election of directors or upon any matter submitted to
shareholders at any meeting thereof, or to give or withhold consent to any
corporate action, or to receive notice of meetings or other actions affecting
shareholders (except as provided in the Rights Agreement), or to receive
dividends or subscription rights, or otherwise, until the Rights evidenced by
this Rights Certificate shall have been exercised or exchanged as provided in
the Rights Agreement.
This Rights Certificate shall not be valid or obligatory for any
purpose until it shall have been countersigned as provided in the Rights
Agreement.
WITNESS the facsimile signature of the proper officers of the Company
and its corporate seal.
Date:
------------------
ATTEST: MELLON FINANCIAL CORPORATION
By
------------------------- --------------------------
Secretary
--------
* Insert an amount equal to the Redemption Price as of
the date of the Separation Time.
-3-
Countersigned:
[NAME OF RIGHTS AGENT
OR RIGHTS REGISTRAR]
By
-----------------------
Authorized Signature
-4-
[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
------------------
(To be executed by the registered holder if such
holder desires to transfer the Rights Certificates.)
FOR VALUE RECEIVED __________________________ hereby sells, assigns and
transfers unto ________________________ (Please print name
--------------------------------------------------------------------------------
and address of transferee)
this Rights Certificate, together with all right, title and interest therein,
and does irrevocably constitute and appoint ________________ Attorney, to
transfer the within Rights Certificate on the books of the within-named Company,
with full power of substitution.
Dated:
-----------------------
Signature Guaranteed:
-----------------------------
Signature
(Signature must correspond to
name as written upon the face
of this Rights Certificate in
every particular, without
alteration or enlargement or
any change whatsoever)
Signatures must be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee Medallion program), pursuant to
SEC Rule 17Ad-15.
------------------------------------------------------------------------------
(To be completed if true)
The undersigned hereby represents, for the benefit of all holders of Rights and
shares of Common Stock, that the Rights evidenced by this Rights Certificate are
not, and, to the knowledge of the undersigned, have never been, Beneficially
Owned by an Acquiring Person or an Affiliate or Associate thereof (as defined in
the Rights Agreement).
-----------------------------------
Signature
------------------------------------------------------------------------------
NOTICE
------
In the event the certification set forth above is not completed in
connection with a purported assignment, the Company will deem the Beneficial
Owner of the Rights evidenced by the enclosed Rights Certificate to be an
Acquiring Person or an Affiliate or Associate thereof (as defined in the Rights
Agreement) or a transferee of any of the foregoing and accordingly will deem the
Rights evidenced by such Rights Certificate to be void and not transferable or
exercisable.
[To be attached to each Rights Certificate]
FORM OF ELECTION TO EXERCISE
----------------------------
(To be executed if holder desires to
exercise the Rights Certificate.)
TO: MELLON FINANCIAL CORPORATION
The undersigned hereby irrevocably elects to exercise _________________
whole Rights represented by the attached Rights Certificate to purchase the
shares of Participating Preferred Stock issuable upon the exercise of such
Rights and requests that certificates for such shares be issued in the name of:
----------------------------------------
Address:
----------------------------------------
----------------------------------------
Social Security or Other Taxpayer
Identification Number:
----------------------------------------
If such number of Rights shall not be all the Rights evidenced by this Rights
Certificate, a new Rights Certificate for the balance of such Rights shall be
registered in the name of and delivered to:
----------------------------------------
Address:
----------------------------------------
----------------------------------------
Social Security or Other Taxpayer
Identification Number:
----------------------------------------
Dated:
-------------------------
Signature Guaranteed:
-------------------------
Signature
(Signature must
correspond to name as
written upon the face of
this Rights Certificate
in every particular,
without alteration or
enlargement or any change
whatsoever)
Signatures must be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee Medallion program), pursuant to
SEC Rule 17Ad-15.
-----------------------------------------------------------------------------
(To be completed if true)
The undersigned hereby represents, for the benefit of all holders of
Rights and shares of Common Stock, that the Rights evidenced by the enclosed
Rights Certificate are not, and, to the knowledge of the undersigned, have never
been, Beneficially Owned by an Acquiring Person or an Affiliate or Associate
thereof (as defined in the Rights Agreement).
-----------------------------------
Signature
-----------------------------------------------------------------------------
NOTICE
------
In the event the certification set forth above is not completed in
connection with a purported exercise, the Company will deem the Beneficial Owner
of the Rights evi denced by the enclosed Rights Certificate to be an Acquiring
Person or an Affiliate or Associate thereof (as defined in the Rights Agreement)
or a transferee of any of the forego ing and accordingly will deem the Rights
evidenced by such Rights Certificate to be void and not transferable or
exercisable.
EXHIBIT B
FORM OF RESOLUTION OF BOARD OF DIRECTORS OF
MELLON FINANCIAL CORPORATION ESTABLISHING AND DESIGNATING
PARTICIPATING PREFERRED STOCK
STATEMENT AFFECTING CLASS OR
SERIES OF SHARES OF
MELLON FINANCIAL CORPORATION
In compliance with the requirements of Section 1522 of the Pennsylvania
Business Corporation Law, the undersigned corporation, desiring to state the
voting rights, designations, preferences, qualifications, privileges,
limitations, conversion rights and other special rights of a series of shares of
its Preferred Stock, hereby certifies that:
1. The name of the Corporation is Mellon Financial Corporation.
2. Resolutions establishing and designating the series of shares of
Preferred Stock and fixing and determining the relative rights and preferences
of such series were adopted at meetings duly convened and held on October 15,
1996, April 15, 1997, March 17, 1998, April 19, 1999 and October 19, 1999. As
amended through October 19, 1999, the resolutions are set forth in full as
follows:
RESOLVED, that pursuant to the authority vested in the Board of
Directors of this Corporation by the Restated Articles of Incorporation, as
amended, there is hereby created and the Corporation be, and it hereby is,
authorized to issue up to _________* shares of a new series of
--------
* Insert an amount equal to one one-hundredth of the number of
authorized shares of Common Stock of the Corporation as of
the date of the Separation Time; provided, however, that if
such amount exceeds the number of authorized shares of
Preferred Stock of the Corporation which have not been issued
or reserved for issuance as of such date, insert an amount
equal to the amount of authorized shares of Preferred Stock
which have not been issued or reserved for issuance as of
(continued...)
Preferred Stock and hereby fixes the designations, powers, preferences and
relative, participating, optional or other special rights, and the
qualifications, limitations or restrictions as follows:
(i) The distinctive serial designation of this series shall be
"Participating Preferred Stock" (hereinafter called "this Series").
Each share of this Series shall be identical in all respects with the
other shares of this Series except as to the dates from and after which
dividends thereon shall be cumulative.
(ii) The number of shares in this Series shall initially be
_______*, which number may from time to time be increased or decreased
(but not below the number then outstanding) by the Board of Directors.
Shares of this Series purchased by the Corporation shall be cancelled
and shall revert to authorized but unissued shares of Preferred Stock
undesignated as to series. Shares of this Series may be issued in
fractional shares, which fractional shares shall entitle the holder,
in proportion to such holder's fractional share, to all rights of a
holder of a whole share of this Series.
(iii) The holders of full or fractional shares of this Series
shall be entitled to receive, when and as declared by the Board of
Directors, but
--------
*(...continued)
such date.
* Insert an amount equal to one one-hundredth of the number of
authorized shares of Common Stock of the Corporation as of
the date of the Separation Time; provided, however, that if
such amount exceeds the number of authorized shares of
Preferred Stock of the Corporation which have not been issued
or reserved for issuance as of such date, insert an amount
equal to the amount of authorized shares of Preferred Stock
which have not been issued or reserved for issuance as of
such date.
-2-
only out of funds legally available therefor, dividends, (A) on each
date that dividends or other distributions (other than dividends or
distributions payable in Common Stock of the Corporation) are payable
on or in respect of Common Stock comprising part of the Reference
Package (as defined below), in an amount per whole share of this Series
equal to the aggregate amount of dividends or other distributions
(other than dividends or distributions payable in Common Stock of the
Corporation) that would be payable on such date to a holder of the
Reference Package and (B) on the last day of March, June, September and
December in each year, in an amount per whole share of this Series
equal to the excess (if any) of $________* over the aggregate dividends
paid per whole share of this Series during the three month period
ending on such last day. Each such dividend shall be paid to the
holders of record of shares of this Series on the date, not exceeding
fifty days preceding such dividend or distribution payment date, fixed
for the purpose by the Board of Directors in advance of payment of each
particular dividend or distribution. Dividends on each full and each
fractional share of this Series shall be cumulative from the date such
full or fractional share is originally issued; provided that any such
full or fractional share originally issued after a dividend record date
and on or prior to the dividend payment date to which such record date
relates shall not be entitled to receive the dividend payable on such
dividend payment date or any amount in respect of the period from such
original issuance to such dividend payment date.
The term "Reference Package" shall initially mean 100 shares of
Common Stock, par value $.50 per share ("Common Stock"), of the
Corporation. In the event the Corporation shall, at any time
-------
* Insert an amount equal to 1/4 of 1% of the Exercise Price
divided by the number of shares purchasable upon exercise of
one Right (i.e., a guaranteed 1% dividend).
-3-
after the close of business on _____________,* (A) declare or pay a
dividend on any Common Stock payable in Common Stock, (B) subdivide any
Common Stock or (C) combine any Common Stock into a smaller number of
shares, then and in each such case the Reference Package after such
event shall be the Common Stock that a holder of the Reference Package
immediately prior to such event would hold thereafter as a result
thereof.
Holders of shares of this Series shall not be entitled to any
dividends, whether payable in cash, property or stock, in excess of
full cumulative dividends, as herein provided on this Series.
So long as any shares of this Series are outstanding, no dividend
(other than a dividend in Common Stock or in any other stock ranking
junior to this Series as to dividends and upon liquidation) shall be
declared or paid or set aside for payment or other distribution
declared or made upon the Common Stock or upon any other stock ranking
junior to this Series as to dividends or upon liquidation, nor shall
any Common Stock nor any other stock of the Corporation ranking junior
to or on a parity with this Series as to dividends or upon liquidation
be redeemed, purchased or otherwise acquired for any consideration (or
any moneys be paid to or made available for a sinking fund for the
redemption of any shares of any such stock) by the Corporation (except
by conversion into or exchange for stock of the Corporation ranking
junior to this Series as to dividends and upon liquidation), unless, in
each case, the full cumulative dividends (including the dividend to be
due upon payment of such dividend, distribution, redemption, purchase
or other acquisition) on all outstanding shares of this Series shall
have been, or shall contemporaneously be, paid.
-------
* Insert date of Separation Time.
-4-
The preferences of each share of this Series with respect to
dividend payments or distributions upon the voluntary or involuntary
liquidation, dissolution or winding up of the Corporation (herein
referred to as "liquidation"), as the case may be, will be in every
respect on a parity with the preferences of every other share of this
Series as to dividend payments or upon liquidation and of every other
share of capital stock of the Corporation which is not specifically
made senior or junior to the shares of this Series as to dividend
payments or upon liquidation. The rights of this Series will be senior
to the Common Stock of the Corporation with respect to dividend
payments and distribution upon liquidation of the Corporation.
(iv) In the event of any merger, consolidation, reclassification
or other transaction in which the shares of Common Stock are exchanged
for or changed into other stock or securities, cash and/or any other
property, then in any such case the shares of this Series shall at the
same time be similarly exchanged or changed in an amount per whole
share equal to the aggregate amount of stock, securities, cash and/or
any other property (payable in kind), as the case may be, that a holder
of the Reference Package would be entitled to receive as a result of
such transaction.
(v) In the event of any liquidation, dissolution or winding up of
the affairs of the Corporation, whether voluntary or involuntary, the
holders of full and fractional shares of this Series shall be entitled,
before any distribution or payment is made on any date to the holders
of the Common Stock or any other stock of the Corporation ranking
Junior to this Series upon liquidation, to be paid in full an amount
per whole share of this Series equal to the greater of (A) $__________*
or (B) the aggregate amount dis-
--------
* Insert an amount equal to 100 times the Exercise Price
(continued...)
-5-
tributed or to be distributed prior to such date in connection with
such liquidation, dissolution or winding up to a holder of the
Reference Package (such greater amount being hereinafter referred to as
the "Liquidation Preference"), together with accrued dividends to such
distribution or payment date, whether or not earned or declared. If
such payment shall have been made in full to all holders of shares of
this Series, the holders of shares of this Series as such shall have no
right or claim to any of the remaining assets of the Corporation.
In the event the assets of the Corporation available for
distribution to the holders of shares of this Series upon any
liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary, shall be insufficient to pay in full all
amounts to which such holders are entitled pursuant to the first
paragraph of this Section (v), no such distribution shall be made on
account of any shares of any other class or series of Preferred Stock
ranking on a parity with the shares of this Series upon such
liquidation, dissolution or winding up unless proportionate
distributive amounts shall be paid on account of the shares of this
Series, ratably in proportion to the full distributable amounts for
which holders of all such parity shares are respectively entitled upon
such liquidation, dissolution or winding up.
Upon the liquidation, dissolution or winding up of the
Corporation, the holders of shares of this Series then outstanding
shall be entitled to be paid out of assets of the Corporation
available for distribution to its shareholders all amounts to which
such holders are entitled pursuant to the first paragraph of this
Section (v) before any payment shall be made to the holders of Common
Stock or any other stock of
--------
*(...continued)
in effect as of the Separation Time.
-6-
the Corporation ranking junior upon liquidation to this Series.
For the purposes of this Section (v), the consolidation, or
merger or binding share exchange of the Corporation with any other
corporation or the sale, transfer, division or lease by the
Corporation of all or any part of its property shall not be deemed to
constitute a liquidation, dissolution or winding up of the Corporation.
(vi) The shares of this Series shall not be redeemable.
(vii) In addition to any other vote or consent of shareholders
required by law or by the Restated Articles of Incorporation of the
Corporation, each whole share of this Series shall, on any matter, vote
as a class with any other capital stock comprising part of the
Reference Package and voting on such matter and shall have the number
of votes thereon that a holder of the Reference Package would have.
IN WITNESS WHEREOF, MELLON FINANCIAL CORPORATION has caused this
Statement Affecting Class or Series of Shares to be signed by its duly
authorized officer, and its corporate seal duly attested by another such
officer, to be duly affixed this _____ day of _______________.
MELLON FINANCIAL CORPORATION
By
--------------------
Name:
Title:
[Corporate Seal]
Attest:
By
----------------------
Name:
Title:
-7-
