EXHIBIT 4(b)
ONEIDA LTD.
and
AMERICAN STOCK TRANSFER & TRUST COMPANY
Rights Agent
Amended and Restated Rights Agreement
Dated as of December 3, 1999
Table of Contents
Section: Page:
1. Certain Definitions 1
2. Appointment of Rights Agent 5
3. Issue of Rights Certificates 5
4. Form of Rights Certificates 6
5. Countersignature and Registration 7
6. Transfer, Split Up, Combination and Exchange of Rights
Certificates; Mutilated, Destroyed, Lost or Stolen
Rights Certificates 8
7. Exercise of Rights; Purchase Price; Expiration Date
of Rights 9
8. Cancellation and Destruction of Rights Certificates 11
9. Reservation and Availability of Capital Stock 11
10. Preferred Stock Record Date 12
11. Adjustment of Purchase Price, Number and Kind of
Shares or Number of Rights 13
12. Certificate of Adjusted Purchase Price or Number
of Shares 21
13. Consolidation, Merger or Sale or Transfer of Assets or
Earning Power 22
14. Fractional Rights and Fractional Shares 25
15. Rights of Action 25
16. Agreement of Rights Holders 26
17. Rights Certificate Holder Not Deemed a Xxxxxxxxxxx 00
00. Concerning the Rights Agent 27
19. Merger or Consolidation or Change of Name of Rights Agent 27
20. Duties of Rights Agent 28
21. Change of Rights Agent 31
22. Issuance of New Rights Certificates 31
23. Redemption and Xxxxxxxxxxx 00
00. Notice of Certain Events 32
25. Notices 33
26. Supplements and Amendments 34
27. Successors 34
28. Determinations and Actions by the Board of Directors, Etc.34
29. Benefits of this Agreement 35
30. Severability 35
31. Governing Law 35
32. Counterparts 35
33. Descriptive Headings 35
34. Exchange 36
Exhibit A -- Form of Rights Certificate
Exhibit B -- Form of Summary of Rights
Exhibit C -- Certificate of Amendment of Restated Certificate of
Incorporation
AMENDED AND RESTATED RIGHTS AGREEMENT
This agreement (the "Agreement") dated as of December 13,
1989, and amended and restated as of December 3, 1999, between
Oneida Ltd., a New York corporation (the "Company"), and American
Stock Transfer & Trust Company, a New York corporation (the
"Rights Agent").
WHEREAS, on December 13, 1989 (the "Rights Dividend
Declaration Date"), the Board of Directors of the Company
authorized and declared a distribution of one right for each
share of common stock, par value $1.00 per share, of the Company
(the "Company Common Stock") outstanding as of the Close of
Business (as defined below) on December 26, 1989 (the "Record
Date"), and authorized the issuance of one right (as such number
may have been thereafter adjusted) for each share of Company
Common Stock issued between the Record Date (whether originally
issued or delivered from the Company's treasury) and, except as
otherwise provided in Section 22, the Distribution Date, each
right initially representing the right to purchase, upon certain
terms and subject to certain conditions, one Unit (as defined
below) of Preferred Stock (as defined below);
WHEREAS, pursuant to authorization of the Board of Directors
of the Company at a meeting properly noticed and convened on
October 27, 1999, this Agreement has been amended and restated in
accordance with the provisions of Section 26 hereof to, among
other things, (a) provide that each share of Company Common Stock
outstanding at the close of business on the date hereof shall
entitle the holder thereof to one Right (each a "Right"),
(b) extend the Final Expiration Date (as defined below), (c)
amend the Purchase Price (as defined below), and (d) include
provisions to permit the Company, at its option, to exchange the
outstanding and exercisable Rights for Units of Preferred Stock;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein set forth, the parties hereby agree as
follows:
Section 1. Certain Definitions. For purposes of this Agreement,
the following terms have the meanings indicated:
(a) "Acquiring Person" shall mean any Person that (i) shall
be the Beneficial Owner, directly or indirectly, of 20% or more
of the shares of Voting Stock then outstanding or (ii) is an
Affiliate or Associate of the Company and at any time within the
five-year period immediately prior to a Stock Acquisition Date
was the Beneficial Owner, directly or indirectly, of more than
20% of the Voting Stock; but shall not include (x) the Company,
any Subsidiary of the Company, any employee benefit plan
maintained by the Company or any of its Subsidiaries or any
trustee or fiduciary with respect to such plan acting in such
capacity or (y) any such Person who has become and is such a
Beneficial Owner solely because (A) of a change in the aggregate
number of shares of Voting Stock since the last date on which
such Person acquired beneficial ownership of any shares of Voting
Stock or (B) it acquired such beneficial ownership in the good
faith belief that such acquisition would not (1) cause such
beneficial ownership to be equal to or exceed 20% of the shares
of Voting Stock then outstanding and such Person relied in good
faith in computing the percentage of its beneficial ownership on
publicly filed reports or documents of the Company that are
inaccurate or out-of-date or (2) otherwise cause a Distribution
Date or the adjustment provided for in Section 11(a)(ii) to
occur; provided, however, that for purpose of determining whether
a Person is an Acquiring Person, the number of shares of Voting
Stock deemed outstanding shall include shares beneficially owned
by such Acquiring Person but shall not include any unissued
shares of Voting Stock which may be issued pursuant to any
agreement, arrangement or understanding or upon exercise of
conversion rights, warrants or options, or otherwise.
Notwithstanding clause (ii)(y)(B) of the prior sentence, if any
Person that is not an Acquiring Person due to such clause
(ii)(y)(B) does not reduce its percentage of beneficial ownership
of Voting Stock to less than 20% by the Close of Business on the
fifth Business Day after notice from the Company that such
person's beneficial ownership of Voting Stock so equals to or
exceeds 20%, such Person shall at the end of such five Business
Day period become an Acquiring Person (and such clause (ii)(y)(B)
shall no longer apply to such Person). For purposes of this
definition, the determination whether any Person acted in "good
faith" shall be conclusively determined by the Board of Directors
of the Company.
(b) "Adjustment Shares" has the meaning set forth in
Section 11(a)(ii).
(c) "Adjustment Spread" has the meaning set forth in
Section 34(a)(ii).
(d) "Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in Section 912(a) of the New York
Business Corporation Law (the "NYBCL"), as in effect on the date
hereof.
(e) A Person shall be deemed the "Beneficial Owner" of, and
shall be deemed to "beneficially own", and shall be deemed to
have "Beneficial Ownership" of any securities:
(i) which such Person or any of such Person's
Affiliates or Associates beneficially owns, directly or
indirectly; or
(ii) which such Person or any of such Person's
Affiliates or Associates, has (A) the right to acquire such
securities (whether such right is exercisable immediately or only
after the passage of time), pursuant to any agreement,
arrangement or understanding (whether or not in writing), or upon
the exercise of conversion rights, exchange rights, warrants or
options, or otherwise; provided, however, that a person shall not
be deemed the Beneficial Owner of securities tendered pursuant to
a tender or exchange offer made by such Person or any of such
Persons' Affiliates or Associates until such tendered securities
are accepted for purchase or exchange or, of securities that may
be issued upon exercise of Rights at any time prior to the
occurrence of a Triggering Event; or (B) the right to vote such
stock pursuant to any agreement, arrangement or understanding
(whether or not in writing); provided, however, that a Person
shall not be deemed the Beneficial Owner of any securities if the
agreement, arrangement or understanding to vote such security
(X) arises solely from a revocable proxy or consent given in
response to a proxy or consent solicitation made in accordance
with the applicable rules and regulations under the Exchange Act
and (Y) is not then reportable on a Schedule 13D under the
Exchange Act (or any comparable or successor report); or
(iii) which are beneficially owned, directly or
indirectly, by any other Person with which such Person or any of
such Person's Affiliates or Associates has any agreement,
arrangement or understanding (whether or not in writing), for the
purpose of acquiring, holding, voting (except voting pursuant to
a revocable proxy or consent as described in item (B) of clause
(ii) of this subparagraph), or disposing of such security.
(f) "Business Day" shall mean any day other than a
Saturday, Sunday or a day on which banking institutions in New
York City are authorized or obligated by law or executive order
to close.
(g) "Close of Business" on any given date shall mean 5:00
P.M., New York City time, on such date; provided, however, that
if such date is not a Business Day it shall mean 5:00 P.M., New
York City time, on the next succeeding Business Day.
(h) "Common Stock" of any Person other than the Company
shall mean the capital stock of such Person with the greatest
voting power, or, if such Person shall have no capital stock, the
equity securities or other equity interest having power to
control or direct the management of such Person.
(i) "Company Common Stock" has the meaning set forth in the
recitals to this Agreement.
(j) "Distribution Date" has the meaning set forth in
Section 3(a).
(k) "Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended.
(l) "Expiration Date" has the meaning set forth in Section
7(a).
(m) "Person" shall mean any individual, partnership, firm,
corporation, association, trust, unincorporated organization or
other entity, as well as any syndicate or group deemed to be a
person under Section 14(d)(2) of the Exchange Act.
(n) "Preferred Stock" shall mean the Series A Preferred
Stock, par value $1.00 per share, of the Company having the
relative rights, preferences and limitations described in the
Certificate of Amendment of Restated Certificate of Incorporation
of the Company set forth as Exhibit C hereto.
(o) "Purchase Price" has the meaning set forth in Section
7(b).
(p) "Record Date" has the meaning set forth in the recitals
to this Agreement.
(q) "Right" has the meaning set forth in the recitals to
this Agreement.
(r) "Rights Certificate" has the meaning set forth in
Section 3(a).
(s) "Rights Dividend Declaration Date" has the meaning set
forth in the recitals to this Agreement.
(t) "Section 11(a)(ii) Event" shall mean any event
described in Section 11(a)(ii)(A), (B) or (C) hereof.
(u) "Section 13 Event" shall mean any event described in
clause (x), (y) or (z) of Section 13(a) hereof.
(v) "Section 34(a)(i) Exchange Ratio" has the meaning set
forth in Section 34(a)(i).
(w) "Section 34(a)(ii) Exchange Ratio" has the meaning set
forth in Section 34(a)(ii).
(x) "Stock Acquisition Date" shall mean the first date of
public announcement (including, without limitation, the filing of
any report pursuant to Section 13(d) of the Exchange Act) by the
Company or an Acquiring Person that an Acquiring Person has
become such.
(y) "Subsidiary" shall mean, with reference to any Person,
any corporation of which an amount of voting securities
sufficient to elect at least a majority of the directors of such
corporation is owned, directly or indirectly, by such Person.
(z) "Triggering Event" shall mean any Section 11(a)(ii)
Event or any Section 13 Event.
(aa) "Unit" has the meaning set forth in Section 7(b).
(bb) "Voting Stock" shall mean any shares of capital stock
of the Company entitled to vote generally in the election of
directors.
Section 2. Appointment of Rights Agent. 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. With the consent of the
Rights Agent, the Company may from time to time appoint such
Co-Rights Agents as it may deem necessary or desirable.
Section 3. Issue of Rights Certificates. (a) Until the earlier
of (i) the Close of Business on the tenth day after the Stock
Acquisition Date, and (ii) the Close of Business on the tenth
Business Day after the date that a tender or exchange offer by
any Person (other than the Company, any Subsidiary of the
Company, any employee benefit plan maintained by the Company or
any of its Subsidiaries or any trustee or fiduciary with respect
to such plan acting in such capacity) is first published or sent
or given within the meaning of Rule 14d-4(a) of the Exchange Act
Regulations or any successor rule, if upon consummation thereof
such Person would be the Beneficial Owner of 20% or more of the
shares of Voting Stock then outstanding (the earlier of (i) and
(ii) above being the "Distribution Date"), (x) the Rights will be
evidenced (subject to the provisions of paragraph (b) of this
Section 3) by the certificates for shares of Company Common Stock
registered in the names of the holders of shares of Company
Common Stock as of and subsequent to the Record Date (which
certificates for shares of Company Common Stock shall be deemed
also to be certificates for Rights) and not by separate
certificates, and (y) the Rights will be transferable only in
connection with the transfer of the underlying shares of Company
Common Stock (including a transfer to the Company). As soon as
practicable after the Distribution Date, the Rights Agent will
send by first-class, insured, postage prepaid mail, to each
record holder of shares of Company Common Stock as of the Close
of Business on the Distribution Date, at the address of such
holder shown on the records of the Company, one or more rights
certificates in substantially the form of Exhibit A hereto (the
"Rights Certificates"), evidencing one Right for each share of
Company Common Stock so held, subject to adjustment as provided
herein. In the event that an adjustment in the number of Rights
per share of Company Common Stock has been made pursuant to
Section 11(p) hereof, at the time of distribution of the Rights
Certificates, the Company shall make the necessary and
appropriate rounding adjustments (in accordance with
Section 14(a) hereof) so that Rights Certificates representing
only whole numbers of Rights are distributed and cash is paid in
lieu of any fractional Rights. As of and after the Distribution
Date, the Rights will be evidenced solely by such Rights
Certificates.
(b) On the Record Date or as promptly as practicable
thereafter, the Company sent a copy of a Summary of Rights to
Purchase Preferred Stock, in substantially the form attached
hereto as Exhibit B (as amended to summarize the Rights as
amended as of the date hereof, the "Summary of Rights"), by first-
class, postage prepaid mail, to each record holder of shares of
Company Common Stock as of the Close of Business on the Record
Date, at the address of such holder shown on the records of the
Company.
(c) The number of Rights associated with each share of
Company Common Stock outstanding (including any shares of Company
Common Stock held in treasury) on the date hereof shall be
adjusted so that the number of Rights associated with each share
of Company Common Stock on the date hereof shall equal one.
(d) Rights shall, without any further action, be issued in
respect of all shares of Company Common Stock which are issued
(including any shares of Company Common Stock held in treasury)
after the date hereof but prior to the earlier of the
Distribution Date and the Expiration Date. Certificates
representing such shares of Company Common Stock issued after the
date hereof shall bear the following legend:
This certificate also evidences and entitles the holder
hereof to certain Rights as set forth in the Amended and
Restated Rights Agreement, dated as of December 3, 1999,
(the "Rights Agreement") between Oneida Ltd. and American
Stock Transfer & Trust Company (the "Rights Agent"), the
terms of which are hereby incorporated herein by reference
and a copy of which is on file at the principal office of
the stock transfer administration office of the Rights
Agent. Under certain circumstances, as set forth in the
Rights Agreement, such Rights will be evidenced by separate
certificates and will no longer be evidenced by this
certificate. The Rights Agent will mail to the holder of
this certificate a copy of the Rights Agreement, as in
effect on the date of mailing, without charge promptly after
receipt of a written request therefor. Under certain
circumstances set forth in the Rights Agreement, Rights
issued to, or held by, any Person who is, was or becomes an
Acquiring Person or any Affiliate or Associate thereof (as
such terms are defined in the Rights Agreement), whether
currently held by or on behalf of such Person or by any
subsequent holder, may become null and void.
With respect to certificates representing shares of Company
Common Stock (whether or not such certificates include the
foregoing legend or have appended to them the Summary of Rights),
until the earlier of (i) the Distribution Date and (ii) the
Expiration Date, the Rights associated with the shares of Company
Common Stock represented by such certificates shall be evidenced
by such certificates alone and registered holders of the shares
of Company Common Stock shall also be the registered holders of
the associated Rights, and the transfer of any of such
certificates shall also constitute the transfer of the Rights
associated with the shares of Company Common Stock represented by
such certificates.
Section 4. Form of Rights Certificates. (a) The Rights Certificates
(and the forms of election to purchase, assignment and certificate to be
printed on the reverse thereof) shall each be substantially in the form set
forth in Exhibit A hereto and may have such marks of
identification or designation and such legends, summaries or
endorsements printed thereon as the Company may deem appropriate
and as are not inconsistent with the provisions of this
Agreement, or as may be required to comply with any applicable
law or any rule or regulation thereunder or with any rule or
regulation of any stock exchange on which the Rights may from
time to time be listed or to conform to usage. Subject to the
provisions of Section 11 and Section 22 hereof, the Rights
Certificates, whenever distributed, shall be dated as of the
Record Date and on their face shall entitle the holders thereof
to purchase such number of Units of Preferred Stock as shall be
set forth therein at the price set forth therein, but the amount
and type of securities, cash or other assets that may be acquired
upon the exercise of each Right and the Purchase Price thereof
shall be subject to adjustment as provided herein.
(b) Any Rights Certificate issued pursuant hereto that
represents Rights beneficially owned by: (i) an Acquiring Person
or any Associate or Affiliate of an Acquiring Person, (ii) a
transferee of an Acquiring Person (or of any such Associate or
Affiliate) which becomes a transferee after the Acquiring Person
becomes such, or (iii) a transferee of an Acquiring Person (or of
any such Associate or Affiliate) which becomes a transferee prior
to or concurrently with the Acquiring Person becoming such and
which receives such Rights pursuant to either (A) a transfer
(whether or not for consideration) from the Acquiring Person (or
any such Associate or Affiliate) to holders of equity interests
in such Acquiring Person (or any such Associate or Affiliate) or
to any Person with whom such Acquiring Person (or such Associate
or Affiliate) has any continuing agreement, arrangement or
understanding regarding either the transferred Rights, shares of
Company Common Stock or the Company or (B) a transfer which the
Company's Board of Directors has determined to be part of a plan,
arrangement or understanding which has as a primary purpose or
effect the avoidance of Section 7(e) hereof shall, upon the
written direction of the Company's Board of Directors, contain
(to the extent feasible), the following legend:
The Rights represented by this Rights Certificate are or
were beneficially owned by a Person who was or became an
Acquiring Person or an Affiliate or Associate of an
Acquiring Person (as such terms are defined in the Rights
Agreement). Accordingly, this Rights Certificate and the
Rights represented hereby may become null and void in the
circumstances specified in Section 7(e) of such Agreement.
Section 5. Countersignature and Registration. (a) Rights Certificates
shall be executed on behalf of the Company by its Chairman of the
Board, its President or one of its Vice Presidents, 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
the 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 ceased to hold such offices prior
to the countersignature of such Rights Certificates or did not
hold such offices at the date of such Rights Certificates. No
Rights Certificate shall be entitled to any benefit under this
Agreement or be valid for any purpose unless there appears on
such Rights Certificate a countersignature duly executed by the
Rights Agent by manual signature of an authorized officer, and
such countersignature upon any Rights Certificate shall be
conclusive evidence, and the only evidence, that such Rights
Certificate has been duly countersigned as required hereunder.
(b) Following the Distribution Date, the Rights Agent will
keep or cause to be kept, at its office designated for surrender
of Rights Certificates upon exercise or transfer, books for
registration and transfer of the Rights Certificates issued
hereunder. Such books shall show the name and address of each
holder of the Rights Certificates, the number of Rights evidenced
on its face by each Rights Certificate and the date of each
Rights Certificate.
Section 6. Transfer, Split Up, Combination and Exchange of
Rights Certificates; Mutilated, Destroyed, Lost or Stolen Rights
Certificates. (a) Subject to the provisions of Sections 4(b),
7(e) and 14 hereof, at any time after the Close of Business on
the Distribution Date, and at or prior to the Close of Business
on the Expiration Date, any Rights Certificate or Certificates
may be transferred, split up, combined or exchanged for another
Rights Certificate or Certificates, entitling the registered
holder to purchase a like number of Units of Preferred Stock (or,
following a Triggering Event, other securities, cash or other
assets, as the case may be) as the Rights Certificate or
Certificates surrendered then entitled such holder to purchase.
Any registered holder desiring to transfer, split up, combine or
exchange any Rights Certificate or Certificates shall make such
request in writing delivered to the Rights Agent, and shall
surrender the Rights Certificate or Certificates to be
transferred, split up, combined or exchanged, together with, in
the event of a transfer, the form of assignment and related
certificate duly completed and executed, at the office of the
Rights Agent designated for such purpose. Neither the Rights
Agent nor the Company shall be obligated to take any action
whatsoever with respect to the transfer of any such surrendered
Rights Certificate until the registered holder shall have
completed and executed the certificate set forth in the form of
assignment on the reverse side of such Rights Certificate and
shall have provided such additional evidence of the identity of
the Beneficial Owner (or former Beneficial Owner) of the Rights
represented by such Rights Certificate or Affiliates or
Associates thereof as the Company shall reasonably request;
whereupon the Rights Agent shall, subject to the provisions of
Section 4(b), Section 7(e) and Section 14 hereof, countersign and
deliver to the Person entitled thereto a Rights Certificate or
Rights Certificates, as the case may be, as so requested. The
Company may require payment of a sum sufficient to cover any tax
or governmental charge that may be imposed in connection with any
transfer, split up, combination or exchange of Rights
Certificates.
(b) If a Rights Certificate shall be mutilated, lost,
stolen or destroyed, upon request by the registered holder of the
Rights represented thereby and upon payment to the Company and
the Rights Agent of all reasonable expenses incident thereto,
there shall be issued, in exchange for and upon cancellation of
the mutilated Rights Certificate, or in substitution for the
lost, stolen or destroyed Rights Certificate, a new Rights
Certificate, in substantially the form of the prior Rights
Certificate, of like tenor and representing the equivalent number
of Rights, but, in the case of loss, theft or destruction, only
upon receipt of evidence satisfactory to the Company and the
Rights Agent of such loss, theft or destruction of such Rights
Certificate and, if requested by the Company or the Rights Agent,
indemnity also satisfactory to it.
Section 7. Exercise of Rights; Purchase Price; Expiration Date
of Rights. (a) Prior to the earlier of (i) the Close of
Business on December 3, 2009 (the "Final Expiration Date"), or
(ii) the time at which the Rights are redeemed as provided in
Section 23 hereof (the earlier of (i) and (ii) being the
"Expiration Date"), the registered holder of any Rights
Certificate may, subject to the provisions of Sections 7(e) and
9(c) hereof, exercise the Rights evidenced thereby in whole or in
part at any time after the Distribution Date upon surrender of
the Rights Certificate, with the form of election to purchase and
the certificate on the reverse side thereof duly executed, to the
Rights Agent at the office of the Rights Agent designated for
such purpose, together with payment of the aggregate Purchase
Price (as hereinafter defined) for the number of Units of
Preferred Stock (or, following a Triggering Event, other
securities, cash or other assets, as the case may be) for which
such surrendered Rights are then exercisable.
(b) The purchase price for each one one-thousandth of a
share (each such one one-thousandth of a share being a "Unit") of
Preferred Stock upon exercise of Rights shall be $115.00 subject
to adjustment from time to time as provided in Sections 11 and
13(a) hereof (such purchase price, as so adjusted, being the
"Purchase Price"), and shall be payable in accordance with
paragraph (c) below.
(c) As promptly as practicable following the occurrence of
the Distribution Date, the Company shall deposit with a
corporation in good standing organized under the laws of the
United States or any State of the United States, which is
authorized under such laws to exercise corporate trust powers and
is subject to supervision or examination by federal or state
authority (such institution being the "Depositary Agent")
certificates representing the shares of Preferred Stock that may
be acquired upon exercise of the Rights and shall cause such
Depositary Agent to enter into an agreement pursuant to which the
Depositary Agent shall issue receipts representing interests in
the shares of Preferred Stock so deposited. Upon receipt of a
Rights Certificate representing exercisable Rights, with the form
of election to purchase and the certificate duly executed,
accompanied by payment, with respect to each Right so exercised,
of the Purchase Price for the Units of Preferred Stock (or,
following a Triggering Event, other securities, cash or other
assets, as the case may be) to be purchased thereby as set forth
below and an amount equal to any applicable transfer tax or
evidence satisfactory to the Company of payment of such tax, the
Rights Agent shall, subject to Section 20(k) hereof, thereupon
promptly (i) requisition from the Depositary Agent depositary
receipts representing such number of Units of Preferred Stock as
are to be purchased and the Company will direct the Depositary
Agent to comply with such request, (ii) requisition from the
Company the amount of cash, if any, to be paid in lieu of
fractional shares in accordance with Section 14 hereof,
(iii) after receipt of such depositary receipts, cause the same
to be delivered to or upon the order of the registered holder of
such Rights Certificate, registered in such name or names as may
be designated by such holder, and (iv) after receipt thereof,
deliver such cash, if any, to or upon the order of the registered
holder of such Rights Certificate. In the event that the Company
is obligated to issue Company Common Stock, other securities of
the Company, pay cash and/or distribute other property pursuant
to Section 11(a) hereof, the Company will make all arrangements
necessary so that such Company Common Stock, other securities,
cash and/or other property are available for distribution by the
Rights Agent, if and when appropriate. Subject to Section 34,
the payment of the Purchase Price (as such amount may be reduced
pursuant to Section 11(a)(iii) hereof) may be made in cash or by
certified or bank check or bank draft payable to the order of the
Company.
(d) In case the registered holder of any Rights Certificate
shall exercise less than all the Rights evidenced thereby, a new
Rights Certificate evidencing the Rights remaining unexercised
shall be issued by the Rights Agent and delivered to, or upon the
order of, the registered holder of such Rights Certificate,
registered in such name or names as may be designated by such
holder, subject to the provisions of Section 14 hereof.
(e) Notwithstanding anything in this Agreement to the
contrary, from and after the first occurrence of a Section
11(a)(ii) Event, any Rights beneficially owned by (i) an
Acquiring Person or an Associate or Affiliate of an Acquiring
Person, (ii) a transferee of an Acquiring Person (or of any such
Associate or Affiliate) which becomes a transferee after the
Acquiring Person becomes such, or (iii) a transferee of an
Acquiring Person (or of any such Associate or Affiliate) which
becomes a transferee prior to or concurrently with the Acquiring
Person becoming such and which receives such Rights pursuant to
either (A) a transfer (whether or not for consideration) from the
Acquiring Person (or any such Associate or Affiliate) to holders
of equity interests in such Acquiring Person (or any such
Associate or Affiliate) or to any Person with whom such Acquiring
Person (or such Associate or Affiliate) has any continuing
agreement, arrangement or understanding regarding the transferred
Rights, shares of Company Common Stock or the Company or (B) a
transfer which the Company's Board of Directors has determined to
be part of a plan, arrangement or understanding which has as a
primary purpose or effect the avoidance of this Section 7(e),
shall be null and void without any further action, and no holder
of such Rights shall have any rights whatsoever with respect to
such Rights, whether under any provision of this Agreement or
otherwise. The Company shall use all reasonable efforts to
ensure that the provisions of this Section 7(e) and Section 4(b)
hereof are complied with, but shall have no liability to any
holder of Rights or any other Person as a result of its failure
to make any determination under this Section 7(e) or Section 4(b)
with respect to an Acquiring Person or its Affiliates, Associates
or transferees.
(f) Notwithstanding anything in this Agreement or any
Rights Certificate to the contrary, neither the Rights Agent nor
the Company shall be obligated to undertake any action with
respect to a registered holder upon the occurrence of any
purported exercise by such registered holder unless such
registered holder shall have (i) completed and executed the
certificate following the form of election to purchase set forth
on the reverse side of the Rights Certificate surrendered for
such exercise, and (ii) provided such additional evidence of the
identity of the Beneficial Owner (or former Beneficial Owner) of
the Rights represented by such Rights Certificate or Affiliates
or Associates thereof as the Company shall reasonably request.
Section 8. Cancellation and Destruction of Rights Certificates. All Rights
Certificates surrendered for the purpose of exercise, transfer,
split up, combination or exchange shall, if surrendered to the
Company or any of its agents, be delivered to the Rights Agent
for cancellation or in canceled form, or, if surrendered to the
Rights Agent, shall be canceled by it, and no Rights Certificates
shall be issued in lieu thereof except as expressly permitted by
this Agreement. The Company shall deliver to the Rights Agent
for cancellation and retirement, and the Rights Agent shall so
cancel and retire, any Rights Certificates acquired by the
Company otherwise than upon the exercise thereof. The Rights
Agent shall deliver all canceled Rights Certificates to the
Company, or shall, at the written request of the Company, destroy
such canceled Rights Certificates, and in such case shall deliver
a certificate of destruction thereof to the Company.
Section 9. Reservation and Availability of Capital Stock.
(a) The Company shall at all times prior to the Expiration Date
cause to be reserved and kept available out of its authorized and
unissued shares of Preferred Stock, the number of shares of
Preferred Stock that, as provided is this Agreement, will be
sufficient to permit the exercise in full of all outstanding
Rights. Upon the occurrence of any events resulting in an
increase in the aggregate number of shares of Preferred Stock (or
other equity securities of the Company) issuable upon exercise of
all outstanding Rights above the number then reserved, the
Company shall make an appropriate increase in the number of
shares so reserved.
(b) So long as the shares of Preferred Stock to be issued
and delivered upon the exercise of Rights may be listed on any
national securities exchange, the Company shall during the period
from the Distribution Date through the Expiration Date use its
best efforts to cause all securities reserved for such issuance
to be listed on such exchange upon official notice of issuance
upon such exercise.
(c) The Company shall use its best efforts (i) as soon as
practicable following the occurrence of a Section 11(a)(ii) Event
and a determination by the Company in accordance with
Section 11(a)(iii) hereof of the consideration to be delivered by
the Company upon exercise of the Rights or, if so required by
law, as soon as practicable following the Distribution Date (such
date being the "Registration Date"), to file a registration
statement on an appropriate form under the Securities Act of
1933, as amended (the "Securities Act"), with respect to the
securities that may be acquired upon exercise of the Rights (the
"Registration Statement"), (ii) to cause the Registration
Statement to become effective as soon as practicable after such
filing, (iii) to cause the Registration Statement to continue to
be effective (and to include a prospectus complying with the
requirements of the Securities Act) until the earlier of (A) the
date as of which the Rights are no longer exercisable for the
securities covered by the Registration Statement, and (B) the
Expiration Date and (iv) to take as soon as practicable following
the Registration Date such action as may be required to ensure
that any acquisition of securities upon exercise of the Rights
complies with any applicable state securities or "blue sky" laws.
Notwithstanding anything herein or in the Rights Certificates to
the contrary, after the Distribution Date the Company may
instruct the Rights Agent not to deliver Units of Preferred Stock
upon the exercise of Rights (or, following the occurrence of a
Triggering Event, any other securities that may be delivered upon
exercise of Rights) if the Company determines that such delivery
would violate the Securities Act and the rules then in effect
thereunder.
(d) The Company shall take such action as may be necessary
to ensure that all shares of Preferred Stock (and, following the
occurrence of a Triggering Event, any other securities that may
be delivered upon exercise of Rights) shall be, at the time of
delivery of the certificates or depositary receipts for such
securities, duly and validly authorized and issued and fully paid
and non-assessable.
(e) The Company shall pay any documentary, stamp or
transfer tax imposed in connection with the issuance or delivery
of the Rights Certificates or upon the exercise of Rights;
provided, however, the Company shall not be required to pay any
such tax imposed in connection with the issuance or delivery of
Units of Preferred Stock, or any certificates or depositary
receipts for such Units of Preferred Stock (or, following the
occurrence of a Triggering Event, any other securities, cash or
assets, as the case may be) to any person other than the
registered holder of the Rights Certificates evidencing the
Rights surrendered for exercise. The Company shall not be
required to issue or deliver any certificates or depositary
receipts for Units of Preferred Stock (or, following the
occurrence of a Triggering Event, any other securities, cash or
assets, as the case may be) to, or in a name other than that of,
the registered holder upon the exercise of any Rights until any
such tax shall have been paid (any such tax being payable by the
holder of such Rights Certificate at the time of surrender) or
until it has been established to the Company's satisfaction that
no such tax is due.
Section 10. Preferred Stock Record Date. Each Person in whose
name any certificate for Units of Preferred Stock (or, following
the occurrence of a Triggering Event, other securities) is issued
upon the exercise of Rights shall for all purposes be deemed to
have become the holder of record of the Units of Preferred Stock
(or, following the occurrence of a Triggering Event, other
securities) represented thereby on, and such certificate shall be
dated, the date on which the Rights Certificate evidencing such
Rights was duly surrendered and payment of the Purchase Price
(and any applicable transfer taxes) was made; provided, however,
that if the date of such surrender and payment is a date upon
which the Preferred Stock (or, following the occurrence of a
Triggering Event, other securities) transfer books of the Company
are closed, such Person shall be deemed to have become the record
holder of such securities on, and such certificate shall be
dated, the next succeeding Business Day on which the Preferred
Stock (or, following the occurrence of a Triggering Event, other
securities) transfer books of the Company are open; and, provided
further that if delivery of any certificate for Units of
Preferred Stock (or, following the occurrence of a Triggering
Event, any other securities that may be delivered upon exercise
of Rights) is delayed pursuant to Section 9(c) hereof, such
Person shall be deemed to have become the record holder of such
Securities on, and such certificate shall be dated, the date on
which such securities first become deliverable. Prior to the
exercise of the Rights evidenced thereby, the holder of a Rights
Certificate shall not be entitled to any rights of a shareholder
of the Company with respect to securities for which the Rights
shall be exercisable, including, without limitation, the right to
vote, to receive dividends or other distributions, and shall not
be entitled to receive any notice of any proceedings of the
Company, except as provided herein.
Section 11. Adjustment of Purchase Price, Number and Kind of
Shares or Number of Rights. The Purchase Price, the number and
kind of securities covered by each Right and the number of Rights
outstanding are subject to adjustment from time to time as
provided in this Section 11.
(a) (i) In the event the Company shall at any time after
the date of this Agreement (A) declare a dividend on the
Preferred Stock payable in shares of Preferred Stock,
(B) subdivide the outstanding Preferred Stock, (C) combine the
outstanding Preferred Stock into a smaller number of shares, or
(D) issue any shares of its capital stock in a reclassification
of the Preferred Stock (including any such reclassification in
connection with a consolidation or merger in which the Company is
the continuing or surviving corporation), except as otherwise
provided in this Section 11(a), the Purchase Price in effect at
the time of the record date of such dividend or of the effective
date of such subdivision, combination or reclassification, and
the number and kind of shares of Preferred Stock or capital
stock, as the case may be, issuable on such date upon exercise of
the Rights, shall be proportionately adjusted so that the holder
of any Right exercised after such time shall be entitled to
receive, upon payment of the Purchase Price then in effect, the
aggregate number and kind of shares of Preferred Stock or capital
stock, as the case may be, which, if such Right had been
exercised immediately prior to such date, such holder would have
owned upon such exercise and been entitled to receive by virtue
of such dividend, subdivision, combination or reclassification.
If an event occurs which would require an adjustment under both
this Section 11(a)(i) and Section 11(a)(ii) hereof, the
adjustment provided for in this Section 11(a)(i) shall be in
addition to, and shall be made prior to, any adjustment required
pursuant to Section 11(a)(ii) hereof.
(ii) In the event:
(A) any Acquiring Person or any Associate or
Affiliate of any Acquiring Person, at any time after the date of
this Agreement, directly or indirectly, (1) shall merge into the
Company or otherwise combine with the Company and the Company
shall be the continuing or surviving corporation of such merger
or combination and Company Common Stock shall remain outstanding,
(2) shall, in one transaction or a series of transactions,
transfer any assets to the Company or to any of its Subsidiaries
in exchange (in whole or in part) for shares of Company Common
Stock, for other equity securities of the Company or any such
Subsidiary, or for securities exercisable for or convertible into
shares of equity securities of the Company or any of its
Subsidiaries (whether Company Common Stock or otherwise) or
otherwise obtain from the Company or any of its Subsidiaries,
with or without consideration, any additional shares of such
equity securities or securities exercisable for or convertible
into such equity securities (other than pursuant to a pro rata
distribution to all holders of Company Common Stock), (3) shall
sell, purchase, lease, exchange, mortgage, pledge, transfer or
otherwise acquire or dispose of, in one transaction or a series
of transactions, to, from or with (as the case may be) the
Company or any of its Subsidiaries or any employee benefit plan
maintained by the Company or any of its Subsidiaries or any
trustee or fiduciary with respect to such plan acting in such
capacity, assets (including securities) on terms and conditions
less favorable to the Company or such Subsidiary or plan than
those that could have been obtained in arm's length negotiations
with an unaffiliated third party, other than pursuant to a
transaction set forth in Section 13(a) hereof, (4) shall sell,
purchase, lease, exchange, mortgage, pledge, transfer or
otherwise acquire or dispose of, in one transaction or a series
of transactions, to, from or with the Company or any of the
Company's Subsidiaries or any employee benefit plan maintained by
the Company or any of its Subsidiaries or any trustee or
fiduciary with respect to such plan acting in such capacity
(other than transactions, if any, consistent with those engaged
in, as of the date hereof, by the Company and such Acquiring
Person or such Associate or Affiliate), assets (including
securities) having an aggregate fair market value of more than
$1,000,000, other than pursuant to a transaction set forth in
Section 13(a) hereof, (5) shall sell, purchase, lease, exchange,
mortgage, pledge, transfer or otherwise acquire or dispose of, in
one transaction or a series of transactions, to, from or with the
Company or any of its Subsidiaries or any employee benefit plan
maintained by the Company or any of its Subsidiaries or any
trustee or fiduciary with respect to such plan acting in such
capacity, any material trademark or material service xxxx, other
than pursuant to a transaction set forth in Section 13(a) hereof,
(6) shall receive, or any designee, agent or representative of
such Acquiring Person, or any Associate or Affiliate of such
Acquiring Person shall receive any compensation from the Company
or any of its Subsidiaries other than compensation for full-time
employment as a regular employee at rates in accordance with the
Company's (or its Subsidiaries') past practices, or (7) shall
receive the benefit, directly or indirectly (except
proportionately as a holder of Company Common Stock or as
required by law or governmental regulation), of any loans,
advances, guarantees, pledges or other financial assistance or
any tax credits or other tax advantage provided by the Company or
any of its Subsidiaries or any employee benefit plan maintained
by the Company or any of its Subsidiaries or any trustee or
fiduciary with respect to such plan acting in such capacity; or
(B) any Person shall become an Acquiring Person,
other than pursuant to any transaction set forth in Section 13(a)
hereof; or
(C) during such time as there is an Acquiring
Person, there shall be any reclassification of securities
(including any reverse stock split), or recapitalization of the
Company, or any merger or consolidation of the Company with any
of its Subsidiaries or any other transaction or series of
transactions involving the Company or any of its Subsidiaries,
other than a transaction or transactions to which the provisions
of Section 13(a) apply (whether or not with or into or otherwise
involving an Acquiring Person) which has the effect, directly or
indirectly, of increasing by more than 1% the proportionate share
of the outstanding shares of any class of equity securities of
the Company or any of its Subsidiaries which is directly or
indirectly beneficially owned by any Acquiring Person or any
Associate or Affiliate of any Acquiring Person;
then, immediately upon the date of the occurrence of
any event described in Section 11(a)(ii)(A)-(C) hereof (a
"Section 11(a)(ii) Event"), proper provision shall be made so
that each holder of a Right (except as provided below and in
Section 7(e) hereof) shall thereafter have the right to receive,
upon exercise thereof at the then current Purchase Price in
accordance with the terms of this Agreement, in lieu of the
number of Units of Preferred Stock for which a Right was
exercisable immediately prior to the first occurrence of a
Section 11(a)(ii) Event, such number of Units of Preferred Stock
as shall equal the result obtained by (x) multiplying the then
current Purchase Price by the then number of Units of Preferred
Stock for which a Right was exercisable immediately prior to the
first occurrence of a Section 11(a)(ii) Event (such product
thereafter being, for all purposes of this Agreement other than
Section 13 hereof, the "Purchase Price"), and (y) dividing that
product by 50% of the then current market price (determined
pursuant to Section 11(d) hereof) per Unit of Preferred Stock on
the date of such first occurrence (such Units of Preferred Stock
being the "Adjustment Shares").
(iii) In the event that the number of shares of
Preferred Stock which are authorized by the Company's Restated
Certificate of Incorporation but not outstanding or reserved for
issuance for purposes other than upon exercise of the Rights is
not sufficient to permit the exercise in full of the Rights in
accordance with the foregoing subparagraph (ii) of this
Section 11(a), the Company, by the vote of the Company's Board of
Directors, shall: (A) determine the excess of (1) the value of
the Adjustment Shares issuable upon the exercise of a Right (the
"Current Value") over (2) the Purchase Price (such excess being
the "Spread"), and (B) with respect to each Right, make adequate
provision to substitute for such Adjustment Shares, upon payment
of the applicable Purchase Price, (1) cash, (2) a reduction in
the Purchase Price, (3) Company Common Stock or other equity
securities of the Company (including, without limitation, shares,
or units of shares, of preferred stock (such other shares being
"preferred stock equivalents")), (4) debt securities of the
Company, (5) other assets, or (6) any combination of the
foregoing, having an aggregate value equal to the Current Value,
where such aggregate value has been determined by the Company's
Board of Directors, after receiving advice from a nationally
recognized investment banking firm; provided, however, that if
the Company shall not have made adequate provision to deliver
value pursuant to clause (B) above within thirty days following
the later of (x) the first occurrence of a Section 11(a)(ii)
Event and (y) the date on which the Company's right of redemption
pursuant to Section 23(a) expires (the later of (x) and (y) being
referred to herein as the "Section 11(a)(ii) Trigger Date"), then
the Company shall be obligated to deliver, upon the surrender for
exercise of a Right and without requiring payment of the Purchase
Price, Units of Preferred Stock (to the extent available) and
then, if necessary, cash, which Units of Preferred Stock and/or
cash shall have an aggregate value equal to the Spread. To the
extent that the Company determines that some action need be taken
pursuant to the first sentence of this Section 11(a)(iii), the
Company will provide, subject to Section 7(e) hereof, that such
action shall apply uniformly to all outstanding Rights. For
purposes of this Section 11(a)(iii), the value of a Unit of
Preferred Stock shall be the current market price (as determined
pursuant to Section 11(d) hereof) per Unit of Preferred Stock on
the Section 11(a)(ii) Trigger Date and the value of any preferred
stock equivalent shall be deemed to have the same value as the
Preferred Stock on such date.
(b) In case the Company shall fix a record for the issuance
of rights, options or warrants to all holders of Preferred Stock
entitling them to subscribe for or purchase (for a period
expiring within forty-five calendar days after such record date)
shares of Preferred Stock (or shares having substantially the
same rights, privileges and preferences as shares of Preferred
Stock ("equivalent preferred stock")) or securities convertible
into Preferred Stock or equivalent preferred stock at a price per
share of Preferred Stock or per share of equivalent preferred
stock (or having a conversion price per share, if a security
convertible into Preferred Stock or equivalent preferred stock)
less than the current market price (as determined pursuant to
Section 11(d) hereof) per share of Preferred Stock on such record
date, the Purchase Price to be in effect after such record date
shall be determined by multiplying the Purchase Price in effect
immediately prior to such record date by a fraction, the
numerator of which shall be the sum of the number of shares of
Preferred Stock outstanding on such record date plus the number
of shares of Preferred Stock which the aggregate offering price
of the total number of shares of Preferred Stock and/or
equivalent preferred stock so to be offered (and/or the aggregate
initial conversion price of the convertible securities so to be
offered) would purchase at such current market price, and the
denominator of which shall be the number of shares of Preferred
Stock outstanding on such record date plus the number of
additional shares of Preferred Stock and/or equivalent preferred
stock to be offered for subscription or purchase (or into which
the convertible securities so to be offered are initially
convertible). In case such subscription price may be paid by
delivery of consideration part or all of which may be in a form
other than cash, the value of such consideration shall be as
determined in good faith by the Company's Board of Directors,
whose determination shall be described in a statement filed with
the Rights Agent and shall be binding on the Rights Agent and the
holders of the Rights. Shares of Preferred Stock owned by or
held for the account of the Company or any Subsidiary shall not
be deemed outstanding for the purpose of any such computation.
Such adjustment shall be made successively whenever such a record
date is fixed, and in the event that such rights or warrants are
not so issued, the Purchase Price shall be adjusted to be the
Purchase Price which would then be in effect if such record date
had not been fixed.
(c) In case the Company shall fix a record date for a
distribution to all holders of shares of Preferred Stock
(including any such distribution made in connection with a
consolidation or merger in which the Company is the continuing
corporation) of evidences of indebtedness, cash (other than a
regular quarterly cash dividend out of the earnings or retained
earnings of the Company), assets (other than a dividend payable
in shares of Preferred Stock, but including any dividend payable
in stock other than Preferred Stock) or subscription rights or
warrants (excluding those referred to in Section 11(b) hereof),
the Purchase Price to be in effect after such record date shall
be determined by multiplying the Purchase Price in effect
immediately prior to such record date by a fraction, the
numerator of which shall be the current market price (as
determined pursuant to Section 11(d) hereof) per share of
Preferred Stock on such record date less the fair market value
(as determined in good faith by the Company's Board of Directors,
whose determination shall be described in a statement filed with
the Rights Agent and shall be binding on the Rights Agent and the
holder of the Rights) of the cash, assets or evidences of
indebtedness so to be distributed or of such subscription rights
or warrants distributable in respect of a share of Preferred
Stock and the denominator of which shall be such current market
price (as determined pursuant to Section 11(d) hereof) per share
of Preferred Stock. Such adjustments shall be made successively
whenever such a record date is fixed, and in the event that such
distribution is not so made, the Purchase Price shall be adjusted
to be the Purchase Price which would have been in effect if such
record date had not been fixed.
(d) (i) For the purpose of any computation hereunder, the
"current market price" per share of Company Common Stock or
Common Stock on any date shall be deemed to be the average of the
daily closing prices per share of Company Common Stock or Common
Stock, as the case may be, for the ten consecutive Trading Days
(as such term is hereinafter defined) immediately prior to such
date; provided, however, if prior to the expiration of such
requisite ten Trading Day period the issuer announces either
(A) a dividend or distribution on such shares payable in such
shares or securities convertible into such shares (other than the
Rights), or (B) any subdivision, combination or reclassification
of such shares, then, following the ex-dividend date for such
dividend or the record date for such subdivision, as the case may
be, the "current market price" shall be properly adjusted to take
into account such event. The closing price for each day shall
be, if the shares are listed and admitted to trading on a
national securities exchange, as reported in the principal
consolidated transaction reporting system with respect to
securities listed on the principal national securities exchange
on which such shares are listed or admitted to trading or, if
such shares are not listed or admitted to trading on any national
securities exchange, the last quoted price or, if not so quoted,
the average of the high bid and low asked prices in the over-the-
counter market, as reported by the National Association of
Securities Dealers, Inc. Automated Quotation System ("NASDAQ") or
such other system then is use, or, if on such date such shares
are not quoted by any such organization, the average of the
closing bid and asked prices as furnished by a professional
market maker making a market in such shares selected by the
Company's Board of Directors. If on any date no market maker is
making a market in such shares, the fair value of such shares on
such date as determined in good faith by the Company's Board of
Directors shall be used. If such shares are not publicly held or
not so listed or traded, "current market price" per share shall
mean the fair value per share as determined in good faith by the
Company's Board of Directors, whose determination shall be
described in a statement filed with the Rights Agent and shall be
conclusive for all purposes. The term "Trading Day" shall mean,
if such shares are listed or admitted to trading on any national
securities exchange, a day on which the principal national
securities exchange on which such shares are listed or admitted
to trading is open for the transaction of business or, if such
shares are not so listed or admitted, a Business Day.
(ii) For the purpose of any computation hereunder, the
"current market price" per share of Preferred Stock shall be
determined in the same manner as set forth above for Company
Common Stock in clause (i) of this Section 11(d) (other than the
fourth sentence thereof). If the current market price per share
of Preferred Stock cannot be determined in the manner provided
above or if the Preferred Stock is not publicly held or listed or
traded in a manner described in clause (i) of this Section 11(d),
the "current market price" per share of Preferred Stock shall be
conclusively deemed to be an amount equal to 1000 (as such amount
may be appropriately adjusted for such events as stock splits,
stock dividends and recapitalizations with respect to Company
Common Stock occurring after the date of this Agreement)
multiplied by the current market price per share of Company
Common Stock. If neither Company Common Stock nor Preferred
Stock is publicly held or so listed or traded, "current market
price" per share of the Preferred Stock shall mean the fair value
per share as determined in good faith by the Company's Board of
Directors whose determination shall be described in a statement
filed with the Rights Agent and shall be binding on the Rights
Agent and the holders of the Rights. For all purposes of this
Agreement, the "current market price" of a Unit of Preferred
Stock shall be equal to the "current market price" of one share
of Preferred Stock divided by 1000.
(e) Anything herein to the contrary notwithstanding, no
adjustment in the Purchase Price shall be required unless such
adjustment would require an increase or decrease of at least one
percent (1%) in the Purchase Price; provided, however, that any
adjustments which by reason of this Section 11(e) are not
required to be made shall be carried forward and taken into
account in any subsequent adjustment. All calculations under
this Section 11 shall be made to the nearest cent or to the
nearest ten-thousandth of a share of Company Common Stock or
Common Stock or other share or one-millionth of a share of
Preferred Stock, as the case may be. Notwithstanding the first
sentence of this Section 11(e), any adjustment required by this
Section 11 shall be made no later than the earlier of (i) three
years from the date of the transaction which mandates such
adjustment or (ii) the Expiration Date.
(f) If as a result of an adjustment made pursuant to
Section 11(a)(ii) or 13(a) hereof, the holder of any Right
thereafter exercised shall become entitled to receive any shares
of capital stock other than Preferred Stock, thereafter the
number of such other shares so receivable upon exercise of any
Right and the Purchase Price thereof shall be subject to
adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to the
Preferred Stock contained in Sections 11(a), (b), (c), (d), (e),
(g), (h), (i), (j), (k), (l) and (m), and the provisions of
Sections 7, 9, 10, 13 and 14 hereof with respect to the Preferred
Stock shall apply on like terms to any such other shares.
(g) All Rights originally issued by the Company subsequent
to any adjustment made to the Purchase Price hereunder shall
evidence the right to purchase, at the adjusted Purchase Price,
the number of Units of Preferred Stock (or other securities or
amount of cash or combination thereof) that may be acquired from
time to time hereunder upon exercise of the Rights, all subject
to further adjustment as provided herein.
(h) Unless the Company shall have exercised its election as
provided in Section 11(i), upon each adjustment of the Purchase
Price as a result of the calculations made in Sections 11(b) and
(c), each Right outstanding immediately prior to the making of
such adjustment shall thereafter evidence the right to purchase,
at the adjusted Purchase Price, that number of Units of Preferred
Stock (calculated to the nearest one-ten thousandth of a Unit)
obtained by (i) multiplying (x) the number of Units of Preferred
Stock covered by a Right immediately prior to this adjustment by
(y) the Purchase Price in effect immediately prior to such
adjustment of the Purchase Price and (ii) dividing the product so
obtained by the Purchase Price in effect immediately after such
adjustment of the Purchase Price.
(i) The Company may elect on or after the date of any
adjustment of the Purchase Price to adjust the number of Rights,
in lieu of any adjustment in the number of Units of Preferred
Stock that may be acquired upon the exercise of a Right. Each of
the Rights outstanding after the adjustment in the number of
Rights shall be exercisable for the number of Units of Preferred
Stock for which a Right was exercisable immediately prior to such
adjustment. Each Right held of record prior to such adjustment
of the number of Rights shall become that number of Rights
(calculated to the nearest ten-thousandth) obtained by dividing
the Purchase Price in effect immediately prior to adjustment of
the Purchase Price by the Purchase Price in effect immediately
after adjustment of the Purchase Price. The Company shall make a
public announcement of its election to adjust the number of
Rights, indicating the record date for the adjustment, and, if
known at the time, the amount of the adjustment to be made. This
record date may be the date on which the Purchase Price is
adjusted or any day thereafter, but, if the Rights Certificates
have been issued, shall be at least ten days later than the date
of such public announcement. If Rights Certificates have been
issued, upon each adjustment of the number of Rights pursuant to
this Section 11(i), the Company shall, as promptly as
practicable, cause to be distributed to holders of record of
Rights Certificates on such record date Rights Certificates
evidencing, subject to Section 14 hereof, the additional Rights
to which such holders shall be entitled as a result of such
adjustment, or, at the option of the Company, shall cause to be
distributed to such holders of record in substitution and
replacement for the Rights Certificates held by such holders
prior to the date of adjustment, and upon surrender thereof, if
required by the Company, new Rights Certificates evidencing all
the Rights to which such holders shall be entitled after such
adjustment. Rights Certificates to be so distributed shall be
issued, executed and countersigned in the manner provided for
herein (and may bear, at the option of the Company, the adjusted
Purchase Price) and shall be registered in the names of the
holders of record of Rights Certificates on the record date
specified in the public announcement.
(j) Irrespective of any adjustment or change in the
Purchase Price or the number of Units of Preferred Stock issuable
upon the exercise of the Rights, the Rights Certificates
theretofore and thereafter issued may continue to express the
Purchase Price per Unit and the number of Units of Preferred
Stock which was expressed in the initial Rights Certificates
issued hereunder.
(k) Before taking any action that would cause an adjustment
reducing the Purchase Price below the then par value of the
number of Units of Preferred Stock issuable upon exercise of the
Rights, the Company shall take any corporate action which may, in
the opinion of its counsel, be necessary in order that the
Company may validly and legally issue such fully paid and non-
assessable number of Units of Preferred Stock at such adjusted
Purchase Price.
(l) In any case in which this Section 11 shall require that
an adjustment in the Purchase Price be made effective as of a
record date for a specified event, the Company may elect to defer
until the occurrence of such event the issuance to the holder of
any Right exercised after such record date of that number of
Units of Preferred Stock and shares of other capital stock or
securities of the Company, if any, issuable upon such exercise
over and above the number of Units of Preferred Stock and shares
of other capital stock or securities of the Company, if any,
issuable upon such exercise on the basis of the Purchase Price in
effect prior to such adjustment; provided, however, that the
Company shall deliver to such holder a due xxxx or other
appropriate instrument evidencing such holder's right to receive
such additional shares (fractional or otherwise) or securities
upon the occurrence of the event requiring such adjustment.
(m) Anything in this Section 11 to the contrary
notwithstanding, the Company shall be entitled to make such
reductions in the Purchase Price, in addition to those
adjustments expressly required by this Section 11, as and to the
extent that in their good faith judgment the Company's Board of
Directors shall determine to be advisable in order that any (i)
consolidation or subdivision of the Preferred Stock, (ii)
issuance wholly for cash of any shares of Preferred Stock at less
than the current market price, (iii) issuance wholly for cash or
shares of Preferred Stock or securities which by their terms are
convertible into or exchangeable for shares of Preferred Stock,
(iv) stock dividends or (v) issuance of rights, options or
warrants referred to in this Section 11, hereafter made by the
Company to the holders of its Preferred Stock, shall not be
taxable to such holders or shall reduce the taxes payable by such
holders.
(n) The Company shall not, at any time after the
Distribution Date, (i) consolidate with any other Person (other
than a Subsidiary of the Company in a transaction which complies
with Section 11(o) hereof), (ii) merge with or into any other
Person (other than a Subsidiary of the Company in a transaction
which complies with Section 11(o) hereof), or (iii) sell or
transfer (or permit any Subsidiary to sell or transfer), in one
transaction, or a series of transactions, assets or earning power
aggregating more than 50% of the assets or earning power of the
Company and its Subsidiaries (taken as a whole) to any other
Person or Persons (other than the Company and/or any of its
Subsidiaries in one or more transactions each of which complies
with Section 11(o) hereof), if (x) at the time or immediately
after such consolidation, merger or sale there are any rights,
warrants or other instruments or securities outstanding or
agreements in effect which would substantially diminish or
otherwise eliminate the benefits intended to be afforded by the
Rights or (y) prior to, simultaneously with or immediately after
such consolidation, merger or sale, the Person which constitutes,
or would constitute, the "Principal Party" for purposes of
Section 13(a) hereof shall have distributed or otherwise
transferred to its shareholders or other persons holding an
equity interest in such Person Rights previously owned by such
Person or any of its Affiliates and Associates; provided,
however, this Section 11(n) shall not affect the ability of any
Subsidiary of the Company to consolidate with, merge with or
into, or sell or transfer assets or earning power to, any other
Subsidiary of the Company.
(o) After the Distribution Date, the Company shall not,
except as permitted by Section 23 or Section 26 hereof, take (or
permit any Subsidiary to take) any action if at the time such
action is taken it is reasonably foreseeable that such action
will diminish substantially or otherwise eliminate the benefits
intended to be afforded by the Rights.
(p) Anything in this Agreement to the contrary
notwithstanding, in the event that the Company shall at any time
after the date hereof and prior to the Distribution Date (i)
declare a dividend on the outstanding shares of Company Common
Stock payable in shares of Company Common Stock, (ii) subdivide
the outstanding shares of Company Common Stock, (iii) combine the
outstanding shares of Company Common Stock into a smaller number
of shares, or (iv) issue any shares of its capital stock in a
reclassification of Company Common Stock (including any such
reclassification in connection with a consolidation or merger in
which the Company is the continuing or surviving corporation),
the number of Rights associated with each share of Company Common
Stock then outstanding, or issued or delivered thereafter but
prior to the Distribution Date, shall be proportionately adjusted
so that the number of Rights thereafter associated with each
share of Company Common Stock following any such event shall
equal the result obtained by multiplying the number of Rights
associated with each share of Company Common Stock immediately
prior to such event by a fraction the numerator of which shall be
the total number of shares of Company Common Stock outstanding
immediately prior to the occurrence of the event and the
denominator of which shall be the total number of shares of
Company Common Stock outstanding immediately following the
occurrence of such event.
Section 12. Certificate of Adjusted Purchase Price or Number of
Shares. Whenever an adjustment is made as provided in Section 11
or Section 13 hereof, the Company shall (a) promptly prepare a
certificate setting forth such adjustment and a brief statement
of the facts accounting for such adjustment, (b) promptly file
with the Rights Agent, and with each transfer agent for the
Preferred Stock and the Company Common Stock, a copy of such
certificate, and (c) mail a brief summary thereof to each holder
of a Rights Certificate (or, if prior to the Distribution Date,
to each holder of a certificate representing shares of Company
Common Stock) in accordance with Section 25 hereof. The Rights
Agent shall be fully protected in relying on any such certificate
and on any adjustment therein contained and shall not be deemed
to have knowledge of any such adjustment unless and until it
shall have received such certificate.
Section 13. Consolidation, Merger or Sale or Transfer of Assets
or Earning. (a) In the event that, following the Stock
Acquisition Date, directly or indirectly, (x) the Company shall
consolidate with, or merge with and into, any other Person (other
than a Subsidiary of the Company in a transaction which complies
with Section 11(o) hereof), and the Company shall not be the
continuing or surviving corporation of such consolidation or
merger, (y) any Person (other than a Subsidiary of the Company in
a transaction which complies with Section 11(o) hereof) shall
consolidate with, or merge with or into, the Company, and the
Company shall be the continuing or surviving corporation of such
consolidation or merger and, in connection with such
consolidation or merger, all or part of the outstanding shares of
Company Common Stock shall be converted into or exchanged for
stock or other securities of any other Person or cash or any
other property, or (z) the Company shall sell or otherwise
transfer (or one or more of its Subsidiaries shall sell or
otherwise transfer) to any Person or Persons (other than the
Company or any of its Subsidiaries in one or more transactions
each of which complies with Section 11(o) hereof), in one or more
transactions, assets or earning power aggregating more than 50%
of the assets or earning power of the Company and its
Subsidiaries (taken as a whole) (any such event being a "Section
13 Event"), then, and in each such case, proper provision shall
be made so that: (i) each holder of a Right, except as provided
in Section 7(e) hereof, shall thereafter have the right to
receive, upon the exercise thereof at the then current Purchase
Price, such number of validly authorized and issued, fully paid
and non-assessable shares of Common Stock of the Principal Party
(as such term is hereinafter defined), which shares shall not be
subject to any liens, encumbrances, rights of first refusal,
transfer restrictions or other adverse claims, as shall be equal
to the result obtained by (1) multiplying the then current
Purchase Price by the number of Units of Preferred Stock for
which a Right is exercisable immediately prior to the first
occurrence of a Section 13 Event (or, if a Section 11(a)(ii)
Event has occurred prior to the first occurrence of a Section 13
Event, multiplying the number of such Units for which a Right
would be exercisable hereunder but for the occurrence of such
Section 11(a)(ii) Event by the Purchase Price which would be in
effect hereunder but for such first occurrence) and (2) dividing
that product (which, following the first occurrence of a Section
13 Event, shall be the "Purchase Price" for all purposes of this
Agreement) by 50% of the current market price (determined
pursuant to Section 11(d) hereof) per share of the Common Stock
of such Principal Party on the date of consummation of such
Section 13 Event; (ii) such Principal Party shall thereafter be
liable for, and shall assume, by virtue of such Section 13 Event,
all the obligations and duties of the Company pursuant to this
Agreement; (iii) the term "Company" shall thereafter be deemed to
refer to such Principal Party, it being specifically intended
that the provisions of Section 11 hereof shall apply only to such
Principal Party following the first occurrence of a Section 13
Event; (iv) such Principal Party shall take such steps
(including, but not limited to, the reservation of a sufficient
number of shares of its Common Stock) in connection with the
consummation of any such transaction as may be necessary to
ensure that the provisions of this Agreement shall thereafter be
applicable to its shares of Common Stock thereafter deliverable
upon the exercise of the Rights; and (v) the provisions of
Section 11(a)(ii) hereof shall be of no further effect following
the first occurrence of any Section 13 Event.
(b) "Principal Party" shall mean:
(i) in the case of any transaction described in clause
(x) or (y) of the first sentence of Section 13(a), (A) the Person
that is the issuer of any securities into which shares of Company
Common Stock are converted in such merger or consolidation, or,
if there is more than one such issuer, the issuer of Common Stock
that has the highest aggregate current market price (determined
pursuant to Section 11(d) hereof) and (B) if no securities are so
issued, the Person that is the other party to such merger or
consolidation, or, if there is more than one such Person, the
Person the Common Stock of which has the highest aggregate
current market price (determined pursuant to Section 11(d)
hereof); and
(ii) in the case of any transaction described in clause
(z) of the first sentence of Section 13(a), the Person that is
the party receiving the largest portion of the assets or earning
power transferred pursuant to such transaction or transactions,
or, if each Person that is a party to such transaction or
transactions receives the same portion of the assets or earning
power transferred pursuant to such transaction or transactions or
if the Person receiving the largest portion of the assets or
earning power cannot be determined, whichever Person the Common
Stock of which has the highest aggregate current market price
(determined pursuant to Section 11(d) hereof); provided, however,
that in any such case, (1) if the Common Stock of such Person is
not at such time and has not been continuously over the preceding
twelve-month period registered under Section 12 of the Exchange
Act ("Registered Common Stock"), or such Person is not a
corporation, and such Person is a direct or indirect Subsidiary
of another Person that has Registered Common Stock outstanding,
"Principal Party" shall refer to such other Person; (2) if the
Common Stock of such Person is not Registered Common Stock or
such Person is not a corporation, and such Person is a direct or
indirect Subsidiary of another Person but is not a direct or
indirect Subsidiary of another Person which has Registered Common
Stock outstanding, "Principal Party" shall refer to the ultimate
parent entity of such first-mentioned Person; (3) if the Common
Stock of such Person is not Registered Common Stock or such
Person is not a corporation, and such Person is directly or
indirectly controlled by more than one Person, and one or more of
such other Persons has Registered Common Stock outstanding,
"Principal Party" shall refer to whichever of such other Persons
is the issuer of the Registered Common Stock having the highest
aggregate current market price (determined pursuant to Section
11(d) hereof); and (4) if the Common Stock of such Person is not
Registered Common Stock or such Person is not a corporation, and
such Person is directly or indirectly controlled by more than one
Person, and none of such other Persons have Registered Common
Stock outstanding, "Principal Party" shall refer to whichever
ultimate parent entity is the corporation having the greatest
shareholders equity or, if no such ultimate parent entity is a
corporation, shall refer to whichever ultimate parent entity is
the entity having the greatest net assets.
(c) The Company shall not consummate any such
consolidation, merger, sale or transfer unless the Principal
Party shall have a sufficient number of authorized shares of its
Common Stock which have not been issued or reserved for issuance
to permit the exercise in full of the Rights in accordance with
this Section 13, and unless prior thereto the Company and such
Principal Party shall have executed and delivered to the Rights
Agent a supplemental agreement providing for the terms set forth
in paragraphs (a) and (b) of this Section 13 and further
providing that the Principal Party will:
(i) (A) file on an appropriate form, as soon as
practicable following the execution of such agreement, a
registration statement under the Securities Act with respect to
the Common Stock that may be acquired upon exercise of the
Rights, (B) cause such registration statement to remain effective
(and to include a prospectus complying with the requirements of
the Securities Act) until the Expiration Date, and (C) as soon as
practicable following the execution of such agreement, take such
action as may be required to ensure that any acquisition of such
Common Stock upon the exercise of the Rights complies with any
applicable state securities or "blue sky" laws; and
(ii) deliver to holders of the Rights historical
financial statements for the Principal Party and each of its
Affiliates which comply in all respects with the requirements for
registration on Form 10 under the Exchange Act.
(d) In case the Principal Party which is to be a party to a
transaction referred to in this Section 13 has provision in any
of its authorized securities or in its Certificate of
Incorporation or By-laws or other instrument governing its
corporate affairs, which provision would have the effect of (i)
causing such Principal Party to issue, in connection with, or as
a consequence of, the consummation of a transaction referred to
in this Section 13, shares of Common Stock of such Principal
Party at less than the then current market price per share
(determined pursuant to Section 11(d) hereof) or securities
exercisable for, or convertible into, Common Stock of such
Principal Party at less than such then current market price
(other than to holders of Rights pursuant to this Section 13) or
(ii) providing for any special payment, tax or similar provisions
in connection with the issuance of the Common Stock of such
Principal Party pursuant to the provisions of Section 13; then,
in such event, the Company shall not consummate any such
transaction unless prior thereto the Company and such Principal
Party shall have executed and delivered to the Rights Agent a
supplemental agreement providing that the provision in question
of such Principal Party shall have been canceled, waived or
amended, or that the authorized securities shall be redeemed, so
that the applicable provision will have no effect in connection
with, or as a consequence of, the consummation of the proposed
transaction.
(e) The provisions of this Section 13 shall similarly apply
to successive mergers or consolidations or sales or other
transfers. In the event that a Section 13 Event shall occur at
any time after the occurrence of a Section 11(a)(ii) Event, the
Rights which have not theretofore been exercised shall thereafter
become exercisable in the manner described in Section 13(a).
Section 14. Fractional Rights and Fractional Shares. (a)
The Company shall not be required to issue fractions of Rights or
to distribute Rights Certificates which evidence fractional
Rights. In lieu of such fractional Rights, there shall be paid
to the Persons to which such fractional Rights would otherwise be
issuable, an amount in cash equal to such fraction of the market
value of a whole Right. For purposes of this Section 14(a), the
market value of a whole Right shall be the closing price of the
Rights for the Trading Day immediately prior to the date on which
such fractional Rights would have been otherwise issuable. The
closing price of the Rights for any day shall be, if the Rights
are listed or admitted to trading on a national securities
exchange, as reported in the principal consolidated transaction
reporting system with respect to securities listed on the
principal national securities exchange on which the Rights are
listed or admitted to trading or, if the Rights are not listed or
admitted to trading on any national securities exchange, the last
quoted price or, if not so quoted, the average of the high bid
and low asked prices in the over-the-counter market, as reported
by NASDAQ or such other system then in use or, if on any such
date the Rights are not quoted by any such organization, the
average of the closing bid and asked prices as furnished by a
professional market maker making a market in the Rights selected
by the Company's Board of Directors. If on any such date no such
market maker is making a market in the Rights, the fair value of
the Rights on such date as determined in good faith by the
Company's Board of Directors shall be used and such determination
shall be described in a statement filed with the Rights Agent and
the holders of the Rights.
(b) The Company shall not be required to issue fractions of
shares of Preferred Stock (other than fractions which are
integral multiples of one one-thousandth of a share of Preferred
Stock) upon exercise of the Rights or to distribute certificates
which evidence such fractional shares of Preferred Stock (other
than fractions which are integral multiples of one one-thousandth
of a share of Preferred Stock). In lieu of such fractional
shares of Preferred Stock that are not integral multiples of one
one-thousandth of a share, the Company may pay to the registered
holders of Rights Certificates at the time such Rights are
exercised as herein provided an amount in cash equal to the same
fraction of the then current market value of a Unit of Preferred
Stock on the day of exercise determined in accordance with
Section 11(d) hereof.
(c) The holder of a Right by the acceptance of the Rights
expressly waives his right to receive any fractional Rights or
any fractional shares upon exercise of a Right, except as
permitted by this Section 14.
Section 15. Rights of Action. All rights of action in respect of
this Agreement, other than rights of action vested in the Rights
Agent pursuant to Section 18 hereof, are vested in the respective
registered holders of the Rights Certificates (and, prior to the
Distribution Date, the registered holders of certificates
representing shares of Company Common Stock); and any registered
holder of a Rights Certificate (or, prior to the Distribution
Date, of a certificate representing shares of Company Common
Stock), without the consent of the Rights Agent or of the holder
of any other Rights Certificate (or, prior to the Distribution
Date, of a certificate representing shares of Company Common
Stock), may, in his own behalf and for his own benefit, enforce,
and may institute and maintain any suit, action or proceeding
against the Company or any other Person to enforce, or otherwise
act in respect of, his right to exercise the Rights evidenced by
such Rights Certificate in the manner provided in such 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 shall be entitled to specific performance of the obligations
hereunder and injunctive relief against actual or threatened
violations of the obligations hereunder of any Person subject to
this Agreement.
Section 16. Agreement of Rights Holders. Every holder of a Right
by accepting the same consents and agrees with the Company and
the Rights Agent and with every other holder of a Right that:
(a) prior to the Distribution Date, the Rights will be
transferable only in connection with the transfer of Company
Common Stock;
(b) after the Distribution Date, the Rights Certificates
are transferable only on the registry books of the Rights Agent
if surrendered at the office of the Rights Agent designated for
such purposes, duly endorsed or accompanied by a proper
instrument of transfer and with the appropriate forms and
certificates duly executed;
(c) subject to Section 6(a) and Section 7(f) hereof, the
Company and the Rights Agent may deem and treat the person in
whose name a Rights Certificate (or, prior to the Distribution
Date, the associated Company Common Stock certificate) is
registered as the absolute owner thereof and of the Rights
evidenced thereby (notwithstanding any notations of ownership or
writing on the Rights Certificates or the associated Company
Common Stock certificate made by anyone other than the Company or
the Rights Agent) for all purposes whatsoever, and neither the
Company nor the Rights Agent, subject to the last sentence of
Section 7(e) hereof, shall be affected by any notice to the
contrary; and
(d) notwithstanding anything in this Agreement to the
contrary, neither the Company nor the Rights Agent shall have any
liability to any holder of a Right or any other Person as a
result of its inability to perform any of its obligations under
this Agreement by reason of any preliminary or permanent
injunction or other order, decree or ruling issued by a court of
competent jurisdiction or by a governmental, regulatory or
administrative agency or commission, or any statute, rule,
regulation or executive order promulgated or enacted by any
governmental authority, prohibiting or otherwise restraining
performance of such obligation; provided, however, the Company
must use its best efforts to have any such order, decree or
ruling lifted or otherwise overturned as promptly as practicable.
Section 17. Rights Certificate Holder Not Deemed a Shareholder.
No holder, as such, of any Rights Certificate shall be entitled
to vote, receive dividends or be deemed for any purpose the
holder of the number of shares of Preferred Stock or any other
securities of the Company which may at any time be issuable on
the exercise of the Rights represented thereby, nor shall
anything contained herein or in any Rights Certificate be
construed to confer upon the holder of any Rights Certificate, 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, except as provided
in Section 24 hereof, to receive notice of meetings or other
actions affecting shareholders, or to receive dividends or
subscription rights, or otherwise, until the Right or Rights
evidenced by such Rights Certificate shall have been exercised in
accordance with the provisions hereof.
Section 18. Concerning the Rights Agent. (a) 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, including
reasonable fees and disbursements of its counsel, incurred in
connection with the execution and administration of this
Agreement and the exercise and performance of its duties
hereunder. The Company shall indemnify the Rights Agent for, and
hold it harmless against, any loss, liability or expense,
incurred without negligence, bad faith or willful misconduct on
the part of the Rights Agent, for anything done or omitted by the
Rights Agent in connection with the acceptance and administration
of this Agreement, including the costs and expenses of defending
against any claim of liability hereunder. The indemnity provided
herein shall survive the expiration of the Rights and the
termination of this Agreement.
(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 Rights Certificate or certificate
for Preferred Stock or for other securities of the Company,
instrument of assignment or transfer, power of attorney,
endorsement, affidavit, letter, notice, direction, consent,
certificate, statement or other paper or document believed by it
to be genuine and to have been signed, executed and, where
necessary, verified or acknowledged by the proper Person or
Persons.
Section 19. 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 shall be a party, or any corporation succeeding to the
corporate trust or shareholder services businesses of the Rights
Agent or any successor Rights Agent, shall be the successor to
the Rights Agent under this Agreement without the execution or
filing of any document or any further act on the part of any of
the parties hereto; provided, however, that such corporation
would be eligible for appointment as a successor Rights Agent
under the provisions of Section 21 hereof. In case at the time
such successor Rights Agent shall succeed to the agency created
by this Agreement, any of the Rights Certificates shall have been
countersigned but not delivered, any such successor Rights Agent
may adopt the countersignature of a predecessor Rights Agent and
deliver such Rights Certificates so countersigned; and in case at
that time any of the Rights Certificates shall not have been
countersigned, any successor Rights Agent may countersign such
Rights Certificates either in the name of the predecessor or in
the name of the successor Rights Agent; and in all such cases
such Rights Certificates shall 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 shall
be 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.
Section 20. Duties of Rights Agent. The Rights Agent
undertakes the duties and obligations imposed by this Agreement
upon the following terms and conditions, by all of which the
Company and the holders of Rights Certificates, by their
acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel (who
may be legal counsel for the Company), and the opinion of such
counsel shall be full and complete authorization and protection
to the Rights Agent as to any action taken or omitted by it in
good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this
Agreement the Rights Agent shall deem it necessary or desirable
that any fact or matter (including, without limitation, the
identity of any Acquiring Person and the determination of
"current market price") 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 specified
herein) may be deemed to be conclusively proved and established
by a certificate signed by the Chairman of the Board, the
President, any Vice President, the Treasurer, any Assistant
Treasurer, the Secretary or any Assistant Secretary of the
Company and delivered to the Rights Agent; and such certificate
shall be full authorization to the Rights Agent or any action
taken or suffered in good faith by it under the provisions of
this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder only for its
own negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason
of any of the statements of fact or recitals contained in this
Agreement or in the Rights Certificates or be required to verify
the same (except as to its countersignature on such Rights
Certificates), but all such statements and recitals are and shall
be deemed to have been made by the Company only.
(e) The Rights Agent shall not have any responsibility for
the validity of this Agreement or the execution and delivery
hereof (except the due execution and delivery hereof by the
Rights Agent) or for the validity or execution of any Rights
Certificate (except its countersignature thereof); nor shall it
be responsible for any breach by the Company of any covenant or
failure by the Company to satisfy conditions contained in this
Agreement or in any Rights Certificate; nor shall it be
responsible for any adjustment required under the provisions of
Section 11 or Section 13 hereof or 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 evidenced by Rights
Certificates after receipt by the Rights Agent of the certificate
describing any such adjustment contemplated by Section 12); nor
shall it by any act hereunder be deemed to make any
representation or warranty as to the authorization or reservation
of any shares of Preferred Stock or any other securities to be
issued pursuant to this Agreement or any Rights Certificate or as
to whether any shares of Preferred Stock or any other securities
will, when so issued, be validly authorized and issued, fully
paid and non-assessable.
(f) The Company shall perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged and
delivered all such further acts, instruments and assurances as
may reasonably be required by the Rights Agent for the
performance by the Rights Agent of its duties under this
Agreement.
(g) The Rights Agent is hereby authorized and directed to
accept instructions with respect to the performance of its duties
hereunder from the Chairman of the Board, the President, any Vice
President, the Secretary, any Assistant Secretary, the Treasurer
or any Assistant Treasurer of the Company, and to apply to such
officers for advice or instructions in connection with its
duties, and it shall not be liable for any action taken or
suffered to be taken by it in good faith in accordance with
instructions of any such officer. Any application by the Rights
Agent for written instructions from the Company may, at the
option of the Rights Agent, set forth in writing any action
proposed to be taken or omitted by the Rights Agent under this
Rights Agreement and the date on and/or after which such action
shall be taken or such omission shall be effective. The Rights
Agent shall not be liable for any action taken by, or omission
of, the Rights Agent in accordance with a proposal included in
any such application on or after the date specified in such
application (which date shall not be less than five Business Days
after the date any such officer of the Company actually receives
such application, unless any such officer shall have consented in
writing to an earlier date) unless, prior to taking any such
action (or the effective date in the case of an omission), the
Rights Agent shall have received written instructions in response
to such application specifying the action to be taken or omitted.
(h) The Rights Agent and any shareholder, director, officer
or employee of the Rights Agent may buy, sell or deal in any of
the Rights or other securities of the Company or become
pecuniarily interested in any transaction in which the Company
may be interested, or contract with or lend money to the Company
or otherwise act as fully and freely as though it were not Rights
Agent under this Agreement. Nothing herein shall preclude the
Rights Agent from acting in any other capacity for the Company or
for any other legal entity.
(i) The Rights Agent may execute and exercise any of the
rights or powers hereby vested in it or perform any duty
hereunder either itself or by or through its attorneys or agents,
and the Rights Agent shall not be answerable or accountable for
any act, default, neglect or misconduct of any such attorneys or
agents or for any loss to the Company resulting from any such
act, default, neglect or misconduct if reasonable care was
exercised in the selection and continued employment thereof.
(j) No provision of this Agreement shall require the Rights
Agent to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties or in
the exercise of its rights hereunder if the Rights Agent shall
have reasonable grounds for believing that repayment of such
funds or adequate indemnification against such risk or liability
is not reasonably assured to it.
(k) If, with respect to any Rights Certificate surrendered
to the Rights Agent for exercise or transfer, the certificate
attached to the form of assignment or form of election to
purchase, as the case may be, has either not been completed, not
signed or indicates an affirmative response to clause 1 and/or 2
thereof, the Rights Agent shall not take any further action with
respect to such requested exercise or transfer without first
consulting with the Company. If such certificate has been
completed and signed and shows a negative response to clauses 1
and/or 2 of such certificate, unless previously instructed
otherwise in writing by the Company (which instructions may
impose on the Rights Agent additional ministerial
responsibilities, but no discretionary responsibilities), the
Rights Agent may assume without further inquiry that the Rights
Certificate is not owned by a person described in Section 4(b) or
Section 7(e) hereof and shall not be charged with any knowledge
to the contrary.
Section 21. Change of Rights Agent. The Rights Agent or any
successor Rights Agent may resign and be discharged from its
duties under this Agreement upon thirty days' prior notice in
writing mailed to the Company, and to each transfer agent of the
Preferred Stock and the Company Common Stock, by registered or
certified mail, and to the holders of the Rights Certificates by
first-class mail. The Company may remove the Rights Agent or any
successor Rights Agent upon thirty days' prior notice in writing,
mailed to the Rights Agent or successor Rights Agent, as the case
may be, and to each transfer agent of the Preferred Stock and the
Company Common Stock, by registered or certified mail, and to the
holders of the Rights Certificates by first-class mail. If the
Rights Agent shall resign or be removed or shall otherwise become
incapable of acting, the Company shall appoint a successor to the
Rights Agent. If the Company shall fail to make such appointment
within a period of thirty days after giving notice of such
removal or after it has been notified in writing of such
resignation or incapacity by the resigning or incapacitated
Rights Agent or by the holder of a Rights Certificate (who shall,
with such notice, submit his Rights Certificate for inspection by
the Company), then such registered holder of any Rights
Certificate may apply to any court of competent jurisdiction for
the appointment of a new Rights Agent. Any successor Rights
Agent, whether appointed by the Company or by such a court, shall
be a corporation organized and doing business under the laws of
the United States or any state of the United States in good
standing. After appointment, the successor Rights Agent shall be
vested with the same powers, rights, duties and responsibilities
as if it had been originally named as a Rights Agent without
further act or deed; but the predecessor Rights Agent shall
deliver and transfer to the successor Rights Agent any property
at the time held by it hereunder, and execute and deliver any
further assurance, conveyance, act or deed necessary for the
purpose. Not later than the effective date of any such
appointment, the Company shall file notice thereof in writing
with the predecessor Rights Agent and each transfer agent of the
Preferred Stock and the Company Common Stock, and mail a notice
thereof in writing to the registered holders of the Rights
Certificates. Failure to give any notice provided for in this
Section 21, however, or any defect therein, shall not affect the
legality or validity of the resignation or removal of the Rights
Agent or the appointment of the successor Rights Agent.
Section 22. Issuance of New Rights Certificates. Notwithstanding
any of the provisions of this Agreement or 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
the Company's Board of Directors to reflect any adjustment or
change made in accordance with the provisions of this Agreement
in the Purchase Price or the number or kind or class of shares or
other securities or property that may be acquired under the
Rights Certificates. In addition, in connection with the
issuance or sale of shares of Company Common Stock following the
Distribution Date and prior to the Expiration Date, the Company
(a) shall, with respect to shares of Company Common Stock so
issued or sold pursuant to the exercise of stock options or under
any employee plan or arrangement, or upon the exercise,
conversion or exchange of securities hereinafter issued by the
Company, and (b) may, in any other case, if deemed necessary or
appropriate by the Company's Board of Directors, issue Rights
Certificates representing the appropriate number of Rights in
connection with such issuance or sale; provided, however, that
(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 the person to whom such Rights
Certificate would be issued, and (ii) no such Rights Certificate
shall be issued if, and to the extent that, appropriate
adjustment shall otherwise have been made in lieu of the issuance
thereof.
Section 23. Redemption and Termination. (a) Subject to Section 30 hereof,
the Company may, at its option, by action of the Company's Board of
Directors, at any time prior to the earlier of (i) the Close of Business
on the tenth day following the Stock Acquisition Date, or (ii) the Final
Expiration Date, redeem all but not less than all of the then
outstanding Rights at a redemption price of $.01 per Right, as
such amount may be appropriately adjusted to reflect any stock
split, stock dividend or similar transaction occurring after the
date hereof (such redemption price being the "Redemption Price"),
and the Company may, at its option, by action of the Company's
Board of Directors, pay the Redemption Price either in shares of
Company Common Stock (based on the "current market price", as
defined in Section 11(d) hereof, of the shares of Company Stock
at the time of redemption) or cash.
(b) Immediately upon the action of the Company's Board of
Directors ordering the redemption of the Rights, evidence of
which shall be filed with the Rights Agent, and without any
further action and without any notice, the right to exercise the
Rights will terminate and the only right thereafter of the
holders of Rights shall be to receive the Redemption Price for
each Right so held. Promptly after the action of the Company's
Board of Directors ordering the redemption of the Rights, the
Company shall give notice of such redemption to the Rights Agent
and the holders of the then outstanding Rights by mailing such
notice to all such holders at each holder's last address as it
appears upon the registry books of the Rights Agent or, prior to
the Distribution Date, on the registry books of the transfer
agent for Company Common Stock. Any notice which is mailed in
the manner provided shall be deemed given, whether or not the
holder receives the notice. Each such notice of redemption will
state the method by which the payment of the Redemption Price
will be made.
Section 24. Notice of Certain Events. (a) In case the Company
shall propose, at any time after the Distribution Date, (i) to
pay any dividend payable in stock of any class to the holders of
Preferred Stock or to make any other distribution to the holders
of Preferred Stock (other than a regular quarterly cash dividend
out of earnings or retained earnings of the Company), (ii) to
offer to the holders of Preferred Stock rights or warrants to
subscribe for or to purchase any additional shares of Preferred
Stock or shares of stock of any class or any other securities,
rights or options, (iii) to effect any reclassification of the
Preferred Stock (other than a reclassification involving only the
subdivision of outstanding shares of Preferred Stock), (iv) to
effect any consolidation or merger into or with any other Person
(other than a Subsidiary of the Company in a transaction which
complies with Section 11(o) hereof), or to effect any sale or
other transfer (or to permit one or more of its Subsidiaries to
effect any sale or other transfer), in one or more transactions,
of more than 50% of the assets or earning power of the Company
and its Subsidiaries (taken as a whole) to any other Person or
Persons (other than the Company and/or any of its Subsidiaries in
one or more transactions each of which complies with Section
11(o) hereof), or (v) to effect the liquidation, dissolution or
winding up of the Company, then, in each such case, the Company
shall give to each holder of a Rights Certificate, to the extent
feasible and in accordance with Section 25 hereof, a notice of
such proposed action, which shall specify the record date for the
purposes of such stock dividend, distribution of rights or
warrants, or the date on which such reclassification,
consolidation, merger, sale, transfer, liquidation, dissolution,
or winding up is to take place and the date of participation
therein by the holders of the shares of Preferred Stock, if any
such date is to be fixed, and such notice shall be so given in
the case of any action covered by clause (i) or (ii) above at
least twenty (20) days prior to the record date for determining
holders of the shares of Preferred Stock for purposes of such
action, and in the case of any such other action, at least twenty
(20) days prior to the date of the taking of such proposed action
or the date of participation therein by the holders of the shares
of Preferred Stock whichever shall be the earlier; provided,
however, no such notice shall be required pursuant to this
Section 24, if any Subsidiary of the Company effects a
consolidation or merger with or into, or effects a sale or other
transfer of assets or earning power to, any other Subsidiary of
the Company.
(b) In case any of the events set forth in Section
11(a)(ii) hereof shall occur, then, in any such case, the Company
shall as soon as practicable thereafter give to each holder of a
Rights Certificate, to the extent feasible and in accordance with
Section 25 hereof, a notice of the occurrence of such event,
which shall specify the event and the consequences of the event
to holders of Rights under Section 11(a)(ii) hereof.
Section 25. Notices. All notices and other communications
provided for hereunder shall, unless otherwise stated herein, be
in writing (including by telex, telegram or cable) and mailed or
sent or delivered, if to the Company, at its address at:
Oneida Ltd.
Xxxxxx, Xxx Xxxx 00000
Attention: Secretary
And if to the Rights Agent, at its address at:
American Stock Transfer & Trust Company
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Office of the Assignee
Notices or demands authorized by this Agreement to be given or
made by the Company or the Rights Agent to the holder of any
Rights Certificate (or, if prior to the Distribution Date, to the
holder of certificates representing shares of Company Common
Stock) shall be sufficiently given or made if sent by first-class
mail, postage prepaid, addressed to such holder at the address of
such holder as shown on the registry books of the Company.
Section 26. Supplements and Amendments. Prior to the
Distribution Date, the Company may and the Rights Agent shall, if
the Company so directs, supplement or amend any provision of this
Agreement without the approval of any holders of certificates
representing shares of Company Common Stock. From and after the
Distribution Date, the Company may and the Rights Agent shall, if
the Company so directs, supplement or amend this Agreement
without the approval of any holders of Rights Certificates in
order (i) to cure any ambiguity, (ii) to correct or supplement
any provision contained herein which may be defective or
inconsistent with any other provisions herein, (iii) to shorten
or lengthen any time period hereunder, or (iv) to change or
supplement the provisions hereunder in any manner which the
Company may deem necessary or desirable and which shall not
adversely affect the interests of the holders of Rights
Certificates (other than an Acquiring Person or an Affiliate or
Associate of an Acquiring Person); provided, however, this
Agreement may not be supplemented or amended to lengthen,
pursuant to clause (iii) of this sentence, (A) subject to Section
30 hereof, a time period relating to when the Rights may be
redeemed at such time as the Rights are not then redeemable, or
(B) any other time period unless such lengthening is for the
purpose of protecting, enhancing or clarifying the rights of,
and/or the benefits to, the holders of Rights. Upon the delivery
of a certificate from an appropriate officer of the Company which
states that the proposed supplement or amendment is in compliance
with the terms of this Section 26, the Rights Agent shall execute
such supplement or amendment. Prior to the Distribution Date,
the interests of the holders of Rights shall be deemed coincident
with the interests of the holders of Company Common Stock.
Section 27. Successors. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Rights
Agent shall bind and inure to the benefit of their respective
successors and assigns hereunder.
Section 28. Determinations and Actions by the Board of
Directors, Etc. For all purposes of this Agreement, any
calculation of the number of shares of Company Common Stock
outstanding at any particular time, including for purposes of
determining the particular percentage of such outstanding shares
of Company Common Stock of which any Person is the Beneficial
Owner, shall be made in accordance with the last sentence of Rule
13d-3(d)(1)(i) of the Exchange Act Regulations as in effect on
the date hereof. Except as otherwise specifically provided
herein, 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 (i) to interpret the provisions of this
Agreement, and (ii) to 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 or any member
thereof to any liability to the holders of the Rights. Any
reference herein to action by the Board of Directors of the
Company refers to action by such vote as is required by the
Restated Certificate of Incorporation or By-laws of the Company
or otherwise required by applicable law.
Section 29. 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 registered holders of the
Rights Certificates (and, prior to the Distribution Date,
registered holders of shares of Company Common Stock) any legal
or equitable right, remedy or claim under this Agreement. This
Agreement shall be for the sole and exclusive benefit of the
Company, the Rights Agent and the registered holders of the
Rights Certificates (and, prior to the Distribution Date,
registered holders of shares of Company Common Stock).
Section 30. Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent
jurisdiction or other authority to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants
and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated;
provided, however, that notwithstanding anything in this
Agreement to the contrary, if any such term, provision, covenant
or restriction is held by such court or authority to be invalid,
void or unenforceable and the Company's Board of Directors
determines in its good faith judgment that severing the invalid
language from this Agreement would adversely affect the purpose
or effect of this Agreement and the Rights shall not then be
redeemable, the right of redemption set forth in Section 23
hereof shall be reinstated and shall not expire until the Close
of Business on the tenth Business Day following the date of such
determination by the Company's Board of Directors.
Section 31. Governing Law. This Agreement, each Right and each
Rights Certificate issued hereunder shall be governed by, and
construed in accordance with, the laws of the State of New York
applicable to contracts executed in and to be performed entirely
in such State.
Section 32. Counterparts. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be
an original, but all of which taken together shall constitute one
and the same instrument.
Section 33. Descriptive Headings. The headings contained in this Agreement
are for descriptive purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
Section 34. Exchange. (a) (i) The Company may, at its option,
at any time after any Person becomes an Acquiring Person, upon
resolution adopted by a majority of the Company's Board of
Directors, exchange all or part of the then outstanding and
exercisable Rights (which shall not include Rights that have
become void pursuant Section 7(e) hereof) for Units of Preferred
Stock at an exchange ratio of one Unit of Preferred Stock per
Right, appropriately adjusted to reflect any stock split, stock
dividend or similar transaction occurring after the date hereof
(such exchange ratio being hereinafter referred to as the
"Section 34(a)(i) Exchange Ratio"). Notwithstanding the
foregoing, the Company may not effect such exchange at any time
after any Person (other than the Company, any Subsidiary of the
Company, any employee benefit plan maintained by the Company or
any of its Subsidiaries, or any trustee or fiduciary with respect
to such plan acting in such capacity), together with all
Affiliates and Associates of such Person, becomes the Beneficial
Owner of 50% or more of the shares of Company Common Stock then
outstanding.
(ii) The Company may, at its option, at any time after
any Person becomes an Acquiring Person, upon resolution adopted
by a majority of the Company's Board of Directors, exchange all
or part of the then outstanding and exercisable Rights (which
shall not include Rights that have become void pursuant to
Section 7(e) hereof) for Units of Preferred Stock at an exchange
ratio specified in the following sentence, as appropriately
adjusted to reflect any stock split, stock dividend or similar
transaction occurring after the date hereof. Subject to such
adjustment, each Right may be exchanged for that number of Units
of Preferred Stock obtained by dividing the Adjustment Spread (as
defined below) by the then current market price (determined
pursuant to Section 11(d) hereof) per Unit of Preferred Stock on
the earlier of (i) the date on which any Person becomes an
Acquiring Person and (ii) the date on which a tender or exchange
offer by any Person (other than the Company, any Subsidiary of
the Company, any employee benefit plan maintained by the Company
or any of its Subsidiaries or any trustee or fiduciary with
respect to such plan acting in such capacity) is first published
or sent or given within the meaning of Rule 14d-4(a) of the
Exchange Act Regulations or any successor rule, if upon
consummation thereof such Person would be the Beneficial Owner of
20%or more of the shares of Company Common Stock then outstanding
(such exchange ratio being the "Section 34(a)(ii) Exchange
Ratio"). The "Adjustment Spread" shall equal (x) the aggregate
market price on the date of such event of the number of
Adjustment Shares determined pursuant to Section 11(a)(ii)
hereof, minus (y) the Purchase Price. Notwithstanding the
foregoing, the Company may not effect such exchange at any time
after any Person (other than the Company, any Subsidiary of the
Company, any employee benefit plan maintained by the Company or
any of its Subsidiaries, or any trustee or fiduciary with respect
to such plan acting in such capacity), together with all
Affiliates and Associates of such Person, becomes the Beneficial
Owner of 50% or more of the shares of the Company Common Stock
then outstanding.
(b) Immediately upon the determination of the Company's
Board of Directors to exchange any Rights pursuant to
Section 34(a) and without any further action or notice, the right
to exercise such Rights shall terminate and the only right
thereafter of a holder of such Rights shall be to receive that
number of Units of Preferred Stock equal to the number of such
Rights held by such holder multiplied by the Section 34(a)(i)
Exchange Ratio or Section 34(a)(ii) Exchange Ratio, as the case
may be. The Company shall promptly give public notice of any
such exchange; provided, however, that the failure to give, or
any defect in, such notice shall not affect the validity of such
exchange. Each such notice of exchange shall state the method by
which the exchange of Units of Preferred Stock for Rights shall
be effected and, in the event of any partial exchange, the number
of Rights that shall be exchanged. Any partial exchange shall be
effected pro rata based on the number of Rights (other than
Rights that have become void pursuant to Section 7(e) hereof)
held by each holder of Rights.
(c) In the event that the number of shares of Preferred
Stock that are authorized by the Company's Restated Certificate
of Incorporation but not outstanding or reserved for issuance for
purposes other than upon exercise of the Rights are not
sufficient to permit any exchange of Rights as contemplated in
accordance with this Section 34, the Company shall take all such
action as may be necessary to authorize additional shares of
Preferred Stock for issuance upon exchange of the Rights or make
adequate provision to substitute (1) cash, (2) Company Common
Stock or other equity securities of the Company, (3) debt
securities of the Company, (4) other assets or (5) any
combination of the foregoing, having an aggregate value equal to
the Adjustment Spread, where such aggregate value has been
determined by the Company's Board of Directors.
(d) The Company shall not be required to issue fractions of
Units of Preferred Stock or to distribute certificates that
evidence fractional Units. In lieu of fractional Units, the
Company may pay to the registered holders of Rights Certificates
at the time such Rights are exchanged as herein provided an
amount in cash equal to the same fraction of the current market
price (determined pursuant to Section 11(d) hereof) of one Unit
of Preferred Stock.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, all as of the date first above
written.
ONEIDA LTD.
By: /s/ XXXXX X. XXXXXX
Name: Xxxxx X. Xxxxxx
Title: President & Chief Executive Officer
AMERICAN STOCK TRANSFER & TRUST COMPANY
By: /s/ XXXXX XXXXXXXXX
Name: Xxxxx Xxxxxxxxx
Title: Vice President
Exhibit A
[Form of Rights Certificates]
Certificate No. _____________ ____________ Rights
NOT EXERCISABLE AFTER THE EXPIRATION DATE (AS DEFINED
IN THE RIGHTS AGREEMENT). THE RIGHTS ARE SUBJECT TO REDEMPTION,
AT THE OPTION OF THE COMPANY, ON THE TERMS SET FORTH IN THE
AGREEMENT. UNDER CERTAIN CIRCUMSTANCES (SPECIFIED IN THE RIGHTS
AGREEMENT), RIGHTS BENEFICIALLY OWNED BY ACQUIRING PERSONS (AS
DEFINED IN THE RIGHTS AGREEMENT) OR ANY SUBSEQUENT HOLDER OF SUCH
RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS REPRESENTED BY THIS
RIGHTS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO
WAS OR BECAME AN ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF
AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS
AGREEMENT). ACCORDINGLY, THIS RIGHTS CERTIFICATE AND THE RIGHTS
REPRESENTED HEREBY MAY BECOME NULL AND VOID IN THE CIRCUMSTANCES
SPECIFIED IN SECTION 7(e) OF SUCH AGREEMENT.]*
* The portion of the legend in brackets shall be inserted only if
applicable and shall replace the preceding sentence.
Rights Certificate
ONEIDA LTD.
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 and conditions of the Amended and Restated Rights
Agreement dated as of December 3, 1999 (the "Rights Agreement")
between Oneida Ltd., a New York corporation (the "Company"), and
American Stock Transfer & Trust Company, a New York corporation,
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 Distribution Date (as such
term is defined in the Rights Agreement) and prior to the
Expiration Date (as such term is defined in the Rights Agreement)
at the office of the Rights Agent or its successor designated for
such purpose, one one-thousandth of a fully paid nonassessable
share of Series A Preferred Stock, par value $1.00 per share (the
"Preferred Stock"), of the Company at the Purchase Price
initially of $115.00 per one one-thousandth share (each such one
one-thousandth of a share being a "Unit") of Preferred Stock,
upon presentation and surrender of this Rights Certificate with
the Election to Purchase and related certificate duly executed.
The number of Rights evidenced by this Rights Certificate (and
the number of Units which may be purchased upon exercise thereof)
set forth above, and the Purchase Price per Unit set forth above
shall be subject to adjustment in certain events as provided in
the Rights Agreement.
Upon the occurrence of a Section 11(a)(ii) Event (as such term is
defined in the Rights Agreement), if the Rights evidenced by this
Rights Certificate are beneficially owned by an Acquiring Person
or an Affiliate or Associate of any such Acquiring Person (as
such terms are defined in the Rights Agreement) or, under certain
circumstances described in the Rights Agreement, a transferee of
any such Acquiring Person, Associate or Affiliate, such Rights
shall become null and void and no holder hereof shall have any
right with respect to such Rights from and after the occurrence
of such Section 11(a)(ii) Event.
In certain circumstances described in the Rights Agreement, the
rights evidenced hereby may entitle the registered holder thereof
to purchase capital stock of an entity other than the Company or
receive cash or other assets, all as provided in the Rights
Agreement.
This Rights Certificate is subject to all of the terms and
conditions of the Rights Agreement, which terms 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 from the Rights Agent or the
Company 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 and date
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 redeemed by the Company
under certain circumstances at its option at a redemption price
of $.01 per Right, payable at the Company's option in cash or in
common stock of the Company, subject to adjustment in certain
events as provided in the Rights Agreement.
No fractional shares of Preferred Stock will be issued upon the
exercise of any Right or Rights evidenced hereby (other than
fractions which are integral multiples of one one-thousandth of a
share of Preferred Stock), but in lieu thereof a cash payment
will be made, 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 Preferred Stock or of any other 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 as provided in the Rights Agreement.
This Rights Certificate shall not be valid or obligatory for any
purpose until it shall have been countersigned by the Rights
Agent.
WITNESS the facsimile signature of the proper officers of the
Company and its corporate seal. Dated as of ______________, __.
ATTEST: ONEIDA LTD.
By: ______________________ By: ________________________
Name: Name:
Title: Title:
Countersigned:
AMERICAN STOCK TRANSFER & TRUST COMPANY
as Rights Agent
By: _____________________________
Authorized Signature
(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 Certificate.)
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 hereby 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
Signature Guaranteed:
Certificate
The undersigned hereby certifies by checking the
appropriate boxes that:
(1) this Rights Certificate [ ] is [ ] is not
being sold, assigned and transferred by or on behalf of a Person
who is or was an Acquiring Person or an Affiliate or Associate of
any such Acquiring Person (as such terms are defined pursuant to
the Rights Agreement), and
(2) after due inquiry and to the best knowledge of the
undersigned, it [ ] did [ ] did not acquire the Rights
evidenced by this Rights Certificate from any Person who is, was
or subsequently became an Acquiring Person or an Affiliate of an
Acquiring Person.
Dated: _________________, __
__________________________
Signature
Signature Guaranteed:
-----------------------------------------------------------------
-----------------------------------------------------------------
NOTICE
The signature to the foregoing Assignment and Certificate must
correspond to the 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 (a bank, stockbroker, savings and loan association or
credit union with membership in an approved signature guarantee
medallion program) pursuant to Rule 17Ad-15 of the Securities
Exchange Act of 1934.
In the event the certification set forth above is not completed,
the Company will deem the beneficial owner of the Rights
evidenced by this Rights Certificate to be an Acquiring Person or
an Affiliate or Associate thereof (as defined in the Rights
Agreement) and, in the case of an Assignment, will affix a legend
to that effect on any Rights Certificates issued in exchange for
this Rights Certificate.
FORM OF ELECTION TO PURCHASE
(To be executed if the registered holder desires to exercise
Rights represented by the Rights Certificate.)
TO: ONEIDA LTD.
The undersigned hereby irrevocably elects to exercise
_________ Rights represented by this Rights Certificate to
purchase the Units of Preferred Stock issuable upon the exercise
of the Rights (or such other securities of the Company or of any
other Person or other property which may be issuable upon the
exercise of the Rights) and requests that certificates for such
Units be issued in the name of and delivered to:
_________________________________________________________________
(Please print name and address)
_________________________________________________________________
Please insert social security or other identifying 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:
_________________________________________________________________
(Please print name and address)
_________________________________________________________________
Please insert social security or other identifying number:
______________________________
Dated: ________________, ____
___________________________
Signature
Certificate
The undersigned hereby certifies by checking the
appropriate boxes that:
(1) the Rights evidenced by this Rights Certificate [ ]
are [ ] are not beneficially owned by an Acquiring Person
or an Affiliate or an Associate thereof (as defined in the Rights
Agreement); and
(2) after due inquiry and to the best knowledge of the
undersigned, the undersigned [ ] did [ ] did not acquire
the Rights evidenced by this Rights Certificate from any Person
who is, was or subsequently became an Acquiring Person or an
Affiliate or Associate thereof.
Dated: _________________, __
__________________________
Signature
Signature Guaranteed:
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
NOTICE
The signature in the foregoing Election to Purchase and
Certificate must conform to the 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 (a bank, stockbroker, savings and loan association or
credit union with membership in an approved signature guarantee
medallion program) pursuant to Rule 17Ad-15 of the Securities
Exchange Act of 1934.
In the event the certification set forth above is not completed,
the Company will deem the beneficial owner of the Rights
evidenced by this Rights Certificate to be an Acquiring Person or
an Affiliate or Associate thereof (as defined in the Rights
Agreement) and, in the case of an Assignment, will affix a legend
to that effect on any Rights Certificates issued in exchange for
this Rights Certificate.
Exhibit B
SUMMARY OF RIGHTS TO PURCHASE PREFERRED STOCK
On December 13, 1989, the Board of Directors of Oneida Ltd.
(the "Company") declared a distribution of one right for each
outstanding share of Common Stock, par value $1.00 per share (the
"Company Common Stock"), to shareholders of record at the close
of business on December 26, 1989 and for each share of Company
Common Stock issued (including shares distributed from Treasury)
by the Company thereafter and prior to the Distribution Date.
Each right entitled the registered holder, subject to the terms
of a Rights Agreement executed by the Company and Chase Lincoln
First Bank, N.A., as rights agent, dated as of December 13, 1989,
to purchase from the Company one one-thousandth of a share (a
"Unit") of Series A Preferred Stock, par value $1.00 per share
(the "Preferred Stock").
Pursuant to authorization of the Board of Directors of the
Company at a meeting properly noticed and convened on October 27,
1999, the Company and American Stock Transfer & Trust Company, as
Rights Agent, executed an Amended and Restated Rights Agreement
dated as of December 3, 1999 (the "Rights Agreement") to, among
other things, (a) provide that each share of Company Common Stock
outstanding at the close of business on December 3, 1999 shall
entitle the holder thereof to one Right (each a "Right") to
purchase a Unit at a Purchase Price of $115.00 per Unit, subject
to adjustment, (b) extend the Final Expiration Date, and (c)
include provisions to permit the Company, at its option, to
exchange the outstanding and exercisable Rights for Units of
Preferred Stock. The Purchase Price is payable in cash or by
certified or bank check or money order payable to the order of
the Company. The description and terms of the Rights are set
forth in the Rights Agreement.
Copies of the Rights Agreement and the Certificate of
Amendment of Restated Certificate of Incorporation (the
"Certificate of Amendment") for the Preferred Stock have been
filed with the Securities and Exchange Commission as exhibits to
a Registration Statement on Form 8-A, as amended. Copies of the
Rights Agreement and the Certificate of Amendment are available
free of charge from the Company. This summary description of the
Rights and the Preferred Stock does not purport to be complete
and is qualified in its entirety by reference to all the
provisions of the Rights Agreement and the Certificate of
Amendment, including the definitions therein of certain terms,
which Rights Agreement and Certificate of Amendment are
incorporated herein by reference.
The Rights Agreement
Initially, the Rights will attach to all certificates
representing shares of outstanding Company Common Stock, and no
separate Rights Certificates will be distributed. The Rights
will separate from the Company Common Stock and the Distribution
Date will occur upon the earlier of (i) 10 days following a
public announcement (the date of such announcement being the
"Stock Acquisition Date") that a person or group of affiliated
persons (other than the Company, any Subsidiary of the Company or
any employee benefit plan of the Company or such Subsidiary) has
acquired, obtained the right to acquire, or otherwise obtained
beneficial ownership of 20% or more of the then outstanding
shares of Voting Stock, or (ii) 10 business days following the
commencement of a tender offer or exchange offer that would
result in a person or group beneficially owning 20% or more of
the then outstanding shares of Voting Stock. Until the
Distribution Date, (i) the Rights will be evidenced by Company
Common Stock certificates and will be transferred with and only
with such Company Common Stock certificates, (ii) new Company
Common Stock certificates issued after December 3, 1999 (also
including shares distributed from Treasury) will contain a
notation incorporating the Rights Agreement by reference and
(iii) the surrender for transfer of any certificates representing
outstanding Company Common Stock will also constitute the
transfer of the Rights associated with the Company Common Stock
represented by such certificate.
The Rights are not exercisable until the Distribution Date
and will expire at the close of business on the tenth anniversary
of the Rights Agreement unless earlier redeemed by the Company as
described below.
As soon as practicable after the Distribution Date, Rights
Certificates will be mailed to holders of record of Company
Common Stock as of the close of business on the Distribution Date
and, thereafter, the separate Rights Certificates alone will
represent the Rights.
In the event that (i) the Company is the surviving
corporation in a merger with an Acquiring Person and shares of
Company Common Stock shall remain outstanding, (ii) a Person
becomes an Acquiring Person, (iii) an Acquiring Person engages in
one or more "self-dealing" transactions as set forth in the
Rights Agreement, or (iv) during such time as there is an
Acquiring Persons, an event occurs which results in such
Acquiring Person's ownership interest being increased by more
than 1% (e.g., by means of a reverse stock split or
recapitalization), then in each such case, each holder of a Right
will thereafter have the right to receive, upon exercise, Units
of Preferred Stock having a value equal to two times the exercise
price of the Right. The exercise price is the Purchase Price
multiplied by the number of Units of Preferred Stock issuable
upon exercise of a Right prior to the events described in this
paragraph. Notwithstanding any of the foregoing, following the
occurrence of any of the events set forth in this Paragraph, all
Rights that are, or (under certain circumstances specified in the
Rights Agreement) were, beneficially owned by any Acquiring
Person will be null and void.
In the event that, at any time following the Stock
Acquisition Date, (i) the Company is acquired in a merger or
other business combination transaction and the Company is not the
surviving corporation, (ii) any Person consolidates or merges
with the Company and all or part of the Company Common Stock is
converted or exchanged for securities, cash or property of any
other Person or (iii) 50% or more of the Company's assets or
earning power is sold or transferred, each holder of a Right
(except Rights which previously have been voided as described
above) shall thereafter have the right to receive, upon exercise,
common stock of the other Person to such transaction having a
value equal to two times the exercise price of the Right.
The Purchase Price payable, and the number of Units of
Preferred Stock issuable, upon exercise of the Rights are subject
to adjustment from time to time to prevent dilution (i) in the
event of a stock dividend on, or a subdivision, combination or
reclassification of, the Preferred Stock, (ii) if holders of the
Preferred Stock are granted certain rights or warrants to
subscribe for Preferred Stock or convertible securities at less
than the current market price of the Preferred Stock, or (iii)
upon the distribution to the holders of the Preferred Stock of
evidences of indebtedness or assets (excluding regular quarterly
cash dividends) or of subscription rights or warrants (other than
those referred to above).
With certain exception, no adjustment in the Purchase Price
will be required until cumulative adjustments amount to at least
1% of the Purchase Price. The Company is not required to issue
fractional Units. In lieu thereof, an adjustment in cash may be
made based on the market price of the Preferred Stock prior to
the date of exercise.
In the event any Person or group becomes an Acquiring
Person, the Company=s Board of Directors may, at its option,
require all or any portion of the outstanding Rights to be
exchanged for (i) one Unit of Preferred Stock or (ii) Units of
Preferred Stock in an amount equal to (x) the difference between
the aggregate market price of the number of Units to be received
upon a Section 11(a)(ii) Event and the Purchase Price, divided by
(y) the market price per Unit of Preferred Stock. However any
rights held by an Acquiring Person would not be entitled to
participate in this exchange.
At any time until ten days following the Stock Acquisition
Date, the Company may, by action of the Company's Board of
Directors, redeem the Rights in whole, but not in part, at a
price of $.01 per Right (the "Redemption Price"), payable, at the
election of the Company's Board of Directors, in cash or shares
of Company Common Stock. Immediately upon the action of the
Company's Board of Directors ordering the redemption of the
Rights, the Rights will terminate and the only right of the
holders of the Rights will be to receive the Redemption Price.
Until a Right is exercised, the holder thereof, as such,
will have no rights as a shareholder of the Company, including,
without limitation, the right to vote or to receive dividends.
While the distribution of the Rights will not be taxable to
shareholders or to the Company, shareholders may, depending upon
the circumstances, recognize taxable income in the event that the
Rights become exercisable for Units of Preferred Stock (or other
consideration).
Any of the provisions of the Rights Agreement may be amended
at any time prior to the Distribution Date. After the
Distribution Date, the provisions of the Rights Agreement may be
amended in order to cure any ambiguity, defect or inconsistency,
to make changes which do not adversely affect the interests of
holders of Rights (excluding the interests of any Acquiring
Person), or to shorten or lengthen any time period under the
Rights Agreement; provided, however, that no amendment to adjust
the time period governing redemption shall be made at such time
as the Rights are not redeemable.
Description of Preferred Stock
The Units of Preferred Stock that may be acquired upon
exercise of the Rights will be nonredeemable and subordinate to
any other shares of preferred stock that may be issued by the
Company.
Each Unit of Preferred Stock will have a minimum
preferential quarterly dividend rate of $0.12 per Unit but will,
in any event, be entitled to a dividend equal to the per share
dividend declared on the Company Common Stock.
In the event of liquidation, the holder of a Unit of
Preferred Stock will receive a preferred liquidation payment
equal to the greater of $0.01 per Unit or the per share amount
paid in respect of a share of Company Common Stock.
Each Unit of Preferred Stock will have one vote, voting
together with the Company Common Stock. The holders of Units of
Preferred Stock, voting as a separate class, shall be entitled to
a dividend equal to the per share dividend declared on the
Company Common Stock.
In the event of liquidation, the holder of a Unit of
Preferred Stock will receive a preferred liquidation payment
equal to the greater of $0.01 per Unit or the per share amount
paid in respect of a share of Company Common Stock.
Each Unit of Preferred Stock will have one vote, voting
together with the Company Common Stock. The holders of Units of
Preferred Stock, voting as a separate class, shall be entitled to
elect two directors if dividends on the Preferred Stock are in
arrears for six fiscal quarters.
In the event of any merger, consolidation or other
transaction in which shares of the Company Common Stock are
exchanged, each Unit of Preferred Stock will be entitled to
receive the per share amount paid in respect of each share of
Company Common Stock.
The rights of holders of Preferred Stock to dividends,
liquidation and voting, and in the event of mergers and
consolidations, are protected by customary antidilution
provisions.
Because of the nature of the Preferred Stock's dividend,
liquidation and voting rights, the economic value of one Unit of
Preferred Stock that may be acquired upon the exercise of each
Right should approximate the economic value of one share of the
Company Common Stock.
Exhibit C
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
ONEIDA LTD.
____________________________________________________
Under Section 805 of the
Business Corporation Law
_____________________________________________________
We, Xxxxxxx X. Xxxxxxxx and M. Xxxx Xxxxxxx, respectively
the Chairman of the Board and the Secretary of Oneida Ltd., DO
HEREBY CERTIFY:
1. The name of the corporation is ONEIDA LTD. (hereinafter
called the "Corporation"). The name under which it was
originally incorporated was Oneida Community, Limited.
2. The Certificate of Incorporation of the Corporation was
filed by the Department of State on the 20th day of November,
1880, and a Restated Certificate of Incorporation of the
Corporation was filed on the 19th day of April, 1984.
3. The Certificate of Incorporation of the Corporation is
amended by the addition of the following provisions stating the
number, designation, relative rights, preferences, and
limitations of the shares of a series of preferred stock of the
Corporation designated as "Series A Preferred Stock."
4. A new subdivision (C) is added to Article FOURTH
thereof, which subdivision (C) reads in its entirety as follows:
"(C) Series A Preferred Stock. The designation and
amount, relative rights, preferences and limitations of the
shares of Series A Preferred Stock, of a par value of $1.00 each,
as fixed by the Board of Directors, are as follows:
(1) Designation and Amount. The shares of such
series shall be designated as "Series A Preferred Stock" and the
number of shares constituting such series shall be 150,000. Such
number of shares may be increased or decreased by resolution of
the Board of Directors; provided, that no decrease shall reduce
the number of shares of Series A Preferred Stock to a number less
than that of the shares then outstanding plus the number of
shares issuable upon exercise of outstanding rights, options or
warrants or upon conversion of outstanding securities issued by
the Company.
(2) Dividends and Distributions. (a) Subject to
the prior and superior rights of the holders of any shares of any
other series of preferred stock or any other preferred stock of
the Corporation ranking prior to and superior to the Series A
Preferred Stock with respect to dividends, each holder of one one-
thousandth (1/1000) of a share (a "Unit") of Series A Preferred
Stock shall be entitled to receive, when, as and if declared by
the Board of Directors out of funds legally available for that
purpose, (i) quarterly dividends payable in cash on the 1st day
of March, June, September and December in each year (each such
date being a "Quarterly Dividend Payment Date"), commencing on
the first Quarterly Dividend Payment Date after the first
issuance of such Unit of Series A Preferred Stock, in an amount
per Unit (rounded to the nearest cent) equal to the greater of
(A) $0.12 or (B) subject to the provisions for adjustment
hereinafter set forth, the aggregate per share amount of all cash
dividends declared on shares of the Common Stock since the
immediately preceding Quarterly Dividend Payment Date, or, with
respect to the first Quarterly Dividend Payment Date, since the
first issuance of a Unit of Series A Preferred Stock, and (ii)
subject to the provisions for adjustment hereinafter set forth,
quarterly distributions (payable in kind) on each Quarterly
Dividend Payment Date in an amount per Unit equal to the
aggregate per share amount of all non-cash dividends or other
distributions (other than a dividend payable in shares of Common
Stock or a subdivision of the outstanding shares of Common Stock,
by reclassification or otherwise) declared on shares of Common
Stock since the immediately preceding Quarterly Dividend Payment
Date, or with respect to the first Quarterly Dividend Payment
Date, since the first issuance of a Unit of Series A Preferred
Stock. In the event that the Corporation shall at any time after
December 13, 1989 (the "Rights Declaration Date") (i) declare any
dividend on outstanding shares of Common Stock payable in shares
of Common Stock, (ii) subdivide outstanding shares of Common
Stock or (iii) combine outstanding shares of Common Stock into a
smaller number of shares, then in each such case the amount to
which the holder of a Unit of Series A Preferred Stock was
entitled immediately prior to such event pursuant to the
preceding sentence shall be adjusted by multiplying such amount
by a fraction the numerator of which shall be the number of share
common Stock that are outstanding immediately after such event
and the denominator of which shall be the number of shares of
Common Stock that were outstanding immediately prior to such
event.
(b) The Corporation shall declare a dividend
or distribution on Units of Series A Preferred Stock as provided
in paragraph (a) above immediately after it declares a dividend
or distribution on the shares of Common Stock (other than a
dividend payable in shares of Common Stock); provided, however,
that, in the event no dividend or distribution shall have been
declared on the Common Stock during the period between any
Quarterly Dividend Payment Date and the next subsequent Quarterly
Dividend Payment Date, a dividend of $0.12 per Unit on the Series
A Preferred Stock shall nevertheless be payable on such
subsequent Quarterly Dividend Payment Date.
(c) Dividends shall begin to accrue and
shall be cumulative on each outstanding Unit of Series A
Preferred Stock from the Quarterly Dividend Payment Date next
preceding the date of issuance of such Unit of Series A Preferred
Stock, unless the date of issuance of such Unit is prior to the
record date for the first Quarterly Dividend Payment Date, in
which case, dividends on such Unit shall begin to accrue from the
date of issuance of each Unit, or unless the date of issuance is
a Quarterly Dividend Payment Date or is a date after the record
date for the determination of holders of Units of Series A
Preferred Stock entitled to receive a quarterly dividend and
before such Quarterly Dividend Payment Date, in either of which
events such dividends shall begin to accrue and be cumulative
from such Quarterly Dividend Payment Date. Accrued but unpaid
dividends shall not bear interest. Dividends paid on Units of
Series A Preferred Stock in an amount less than the aggregate
amount of all such dividends at the time accrued and payable on
such Units shall be allocated pro rata on a unit-by-unit basis
among all Units of Series A Preferred Stock at the time
outstanding. The Board of Directors may fix a record date for
the determination of holders of Units of Series A Preferred Stock
entitled to receive payment of a dividend or distribution
declared thereon, which record date shall be no more than 30 days
prior to the date fixed for payment thereof.
(3) Voting Rights. The holders of Units of
Series A Preferred Stock shall have the following voting rights:
(a) Subject to the provision for adjustment
hereinafter set forth, each Unit of Series A Preferred Stock
shall entitle the holder thereof to one vote on all matters
submitted to a vote of the shareholders of the Corporation. In
the event the Corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on outstanding shares
of Common Stock payable in shares of Common Stock, (ii) subdivide
outstanding shares of Common Stock or (iii) combine the
outstanding shares of Common Stock into a smaller number of
shares, then in each such case the number of votes per Unit to
which holders of Units of Series A Preferred Stock were entitled
immediately prior to such event shall be adjusted by multiplying
such number by a fraction the numerator of which shall be the
number of shares of Common Stock outstanding immediately after
such event and the denominator of which shall be the number of
shares of Common Stock that were outstanding immediately prior to
such event.
(b) Except as otherwise provided herein or
by law, the holders of Units of Series A Preferred Stock and the
holders of Common Stock shall vote together as one class on all
matters submitted to a vote of shareholders of the Corporation.
(c) (i) If at any time Dividends on any
Units of Series A Preferred Stock shall be in arrears in an
amount equal to six quarterly dividends thereon, then during the
period (a "default period") from the occurrence of such event
until such time as all accrued and unpaid dividends for all
previous quarterly dividend periods and for the current quarterly
dividend period on all Units of Series A Preferred Stock then
outstanding shall have been declared and paid or set apart for
payment, all holders of Units of Series A Preferred Stock, voting
separately as a class, shall have the right to elect two
Directors.
(ii) During any default period, such
voting rights of the holders of Units of Series A Preferred Stock
may be exercised initially at a special meeting called pursuant
to subparagraph (iii) of this Section 3(c) or at any annual
meeting of shareholders, and thereafter at annual meetings of
shareholders, provided that neither such voting rights nor any
right of the holders of Units of Series A Preferred Stock to
increase, in certain cases, the authorized number of Directors
may be exercised at any meeting unless one-third of the
outstanding Units of Preferred Stock shall be present at such
meeting in person or by proxy. The absence of a quorum of the
holders of Common Stock shall not affect the exercise by the
holders of Units of Series A Preferred Stock of such rights. At
any meeting at which the holders of Units of Series A Preferred
Stock shall exercise such voting right initially during an
existing default period, they shall have the right, voting
separately as a class, to elect Directors to fill up to two
vacancies in the Board of Directors, if any such vacancies may
then exist, or, if such right is exercised at an annual meeting,
to elect two Directors. If the number which may be so elected at
any special meeting does not amount to the required number, the
holders of the Series A Preferred Stock shall have the right to
make such increase in the number of Directors as shall be
necessary to permit the election by them of the required number.
After the holders of Units of Series A Preferred Stock shall have
exercised their right to elect Directors during any default
period, the number of Directors shall not be increased or
decreased except as approved by a vote of the holders of Units of
Series A Preferred Stock as herein provided or pursuant to the
rights of any equity securities ranking senior to the Series A
Preferred Stock.
(iii) Unless the holders of Series A
Preferred Stock shall, during an existing default period, have
previously exercised their right to elect Directors, the Board of
Directors may order, or any shareholder or shareholders owning in
the aggregate not less than 25% of the total number of Units of
Series A Preferred Stock outstanding may request, the calling of
a special meeting of the holders of Units of Series A Preferred
Stock, which meeting shall thereupon be called by the Secretary
of the Corporation. Notice of such meeting and of any annual
meeting at which holders of Units of Series A Preferred Stock are
entitled to vote pursuant to this subparagraph (c)(iii) shall be
given to each holder of record of Units of Series A Preferred
Stock by mailing a copy of such notice to him at his last address
as the same appears on the books of the Corporation. Such
meeting shall be called for a time not earlier than 10 days and
not later than 50 days after such order or request or in default
of the calling of such meeting within 50 days after such order or
request, such meeting may be called on similar notice by any
shareholder or shareholders owning in the aggregate not less than
25% of the total number of outstanding Units of Series A
Preferred Stock. Notwithstanding the provisions of this
paragraph (c)(iii), no such special meeting shall be called
during the 60 days immediately preceding the date fixed for the
next annual meeting of the shareholders.
(iv) During any default period, the
holders of shares of Common Stock and Units of Series A Preferred
Stock, and other classes or series of stock of the Corporation,
if applicable, shall continue to be entitled to elect all the
Directors until the holders of Units of Series A Preferred Stock
shall have exercised their right to elect two Directors voting as
a separate class, after the exercise of which right (x) the
Directors so elected by the holders of Units of Series A
Preferred Stock shall continue in office until their successors
shall have been elected by such holders or until the expiration
of the default period, and (y) any vacancy in the Board of
Directors may (except as provided in subparagraph (c)(ii) of this
Section 3) be filled by vote of a majority of the remaining
Directors theretofore elected by the holders of the class of
capital stock which elected the Director whose office shall have
become vacant. References in this paragraph (c) to Directors
elected by the holders of a particular class of capital stock
shall include Directors elected by such Directors to fill
vacancies as provided in clause (y) of the foregoing sentence.
(v) Immediately upon the expiration of
a default period, (x) the right of the holders of Units of Series
A Preferred Stock as a separate class to elect Directors shall
cease, (y) the term of any Directors elected by the holders of
Units of Series A Preferred Stock as a separate class shall
terminate, and (z) the number of Directors shall be such number
as may be provided for in the Certificate or by-laws irrespective
of any increase made pursuant to the provisions of subparagraph
(c)(ii) of this Section 3 (such number being subject, however, to
change thereafter in any manner provided by law or in the
Certificate or by-laws). Any vacancies in the Board of Directors
effected by the provisions of clauses (y) and (z) in the
preceding sentence may be filled by a majority of the remaining
Directors.
(vi) The provisions of this subparagraph
(c) shall govern the election of Directors by holders of Units of
Series A Preferred Stock during any default period
notwithstanding any provisions of the Certificate or by-laws to
the contrary.
(d) Except as set forth herein, holders of
Units of Series A Preferred Stock shall have no special voting
rights and their consent shall not be required (except to the
extent they are entitled to vote with holders of shares of Common
Stock as set forth herein) for taking any corporate action.
(4) Certain Restrictions. (a) Whenever
quarterly dividends or other dividends or distributions payable
on Units of Series A Preferred Stock as provided in Section 2 are
in arrears, thereafter and until all accrued and unpaid dividends
and distributions, whether or not declared, on outstanding Units
of Series A Preferred Stock shall have been paid in full, the
Corporation shall not:
(i) declare or pay dividends on, make
any other distributions on, or redeem or purchase or otherwise
acquire for consideration any junior shares;
(ii) declare or pay dividends on or make
any other distributions on any parity shares, except dividends
paid ratably on Units of Series A Preferred Stock and shares of
all such parity shares on which dividends are payable or in
arrears in proportion to the total amounts to which the holders
of such Units and all such shares are then entitled;
(iii) redeem or purchase or
otherwise acquire for consideration shares of any parity shares,
provided, however, that the Corporation may at any time redeem,
purchase or otherwise acquire shares of any such parity shares in
exchange for any junior shares;
(iv) purchase or otherwise acquire for
consideration any Units of Series A Preferred Stock, except in
accordance with a purchase offer made in writing or by
publication (as determined by the Board of Directors) to all
holders of such Unit.
(b) The Corporation shall not permit any
subsidiary of the Corporation to purchase or otherwise acquire
for consideration any shares of the Corporation unless the
Corporation could, under paragraph (a) of this Section 4,
purchase or otherwise acquire such shares at such time and in
such manner.
(5) Reacquired Shares. Any Units of Series B
Preferred Stock purchased or otherwise acquired by the
Corporation in any manner whatsoever shall be retired and
canceled promptly after the acquisition thereof. All such Units
shall, upon their cancellation, become authorized but unissued
preferred stock and may reissued as part of a new series of
preferred stock to be created by resolution or resolutions of the
Board of Directors, subject to the conditions and restrictions on
issuance set forth herein.
(6) Liquidation, Dissolution or Winding Up. (a)
Upon any voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, no distribution shall be made (i)
to the holders of shares of junior shares unless the holders of
Units of Series A Preferred Stock shall have received, subject to
adjustment as hereinafter provided in paragraph (b), the greater
of either (x) $0.01 per Unit plus an amount equal to accrued and
unpaid dividends and distributions thereon, whether or not earned
or declared, to the date of such payment, or (y) the amount equal
to the aggregate per share amount to be distributed to holders of
shares of Stock, or (ii) to the holders of shares of parity
shares, unless simultaneously therewith distributions are made
ratably on Units of Series A Preferred Stock and all other shares
of such parity shares in proportion to the total amounts to which
the holders of Units of Series A Preferred Stock are entitled
under clause (i)(x) of this sentence and to which the holders of
such parity shares are entitled, in each case upon such
liquidation, dissolution or winding up.
(b) In the event the Corporation shall at
any time after the Rights Declaration Date (i) declare any
dividend on outstanding shares of Common Stock payable in shares
of Common Stock, (ii) subdivide outstanding shares of Common
Stock, or (iii) combine outstanding shares of Common Stock into a
smaller number of shares, then in each such case the aggregate
amount to which holders of Units of Series A Preferred Stock were
entitled immediately prior to such event pursuant to clause
(i)(y) of paragraph (a) of this Section 6 shall be adjusted by
multiplying such amount by a fraction the numerator of which
shall be the number of shares of Common Stock that are
outstanding immediately after such event and the denominator of
which shall be the number of shares of Common Stock that were
outstanding immediately prior to such event.
(7) Consolidation, Merger, etc. In case the
Corporation shall enter into any consolidation, merger,
combination or other transaction in which the shares of Common
Stock are exchanged for or converted into other shares or
securities, cash and/or any other property, then in any such case
Units of Series A Preferred Stock shall at the same time be
similarly exchanged for or converted into an amount per Unit
(subject to the provision for adjustment hereinafter set forth)
equal to the aggregate amount of shares, securities, cash and/or
any other property (payable in kind), as the case may be, into
which or for which such share of Common Stock is converted or
exchanged. In the event the Corporation shall at any time after
the Rights Declaration Date (i) declare any dividend on
outstanding shares of Common Stock payable in shares of Common
Stock, (ii) subdivide outstanding shares of Common Stock, or
(iii) combine outstanding Common Stock into a smaller number of
shares, then in each such case the amount set forth in the
immediately preceding sentence with respect to the exchange or
conversion of shares of Series A Preferred Stock shall be
adjusted by multiplying such amount by a fraction the numerator
of which shall be the number of shares of Common Stock that are
outstanding immediately after such event and the denominator of
which shall be the number of shares of Common Stock that were
outstanding immediately prior to such event.
(8) Redemption. The Units of Series A Preferred
Stock shall not be redeemable.
(9) Ranking. The Units of Series A Preferred
Stock shall rank junior to all other series of preferred stock
and to any other class of preferred stock that hereafter may be
issued by the Corporation as to the payment of dividends and the
distribution of assets, unless the terms of any such series or
class shall provide otherwise.
(10) Amendment. The Certificate, including,
without limitation, this resolution, shall not hereafter be
amended, either directly or indirectly, or through merger or
consolidation with another corporation, in any manner that would
alter or change the powers, preferences or special rights of the
Series A Preferred Stock so as to affect them adversely without
the affirmative vote of the holders of a majority or more of the
outstanding Units of Series A Preferred Stock, voting separately
as a class.
(11) Fractional Shares. The Series A Preferred
Stock may be issued in Units or other fractions of a share, which
Units or fractions shall entitle the holder, in proportion to
such holder's fractional shares, to exercise voting rights,
receive dividends, participate in distributions and to have the
benefit of all other rights of holders of Series A Preferred
Stock.
(12) Certain Definitions. As used herein with
respect to the Series A Preferred Stock, the following terms
shall have the following meanings:
(a) The term "Common Stock" shall mean the
class of shares designated as the Common Stock, par value $6.25
per share, of the Corporation at the date hereof or any other
class of shares resulting from successive changes or
reclassification of the common stock.
(b) The term "junior shares" (i) as used in
Section 4, shall mean the Common Stock and any other class or
series of capital stock of the Corporation hereafter authorized
or issued over which the Series A Preferred Stock has preference
or priority as to the payment of dividends and (ii) as used in
Section 6, shall mean the Common Stock and any other class or
series of capital stock of the Corporation over which the Series
A Preferred Stock has preference or priority in the distribution
of assets on any liquidation, dissolution or winding up of the
Corporation.
(c) The term "parity shares" (i) as used in
Section 4, shall mean any class or series of capital stock of the
Corporation hereafter authorized or issued ranking pari passu
with the Series A Preferred Stock as to dividends and (ii) as
used in Section 6, shall mean any class or series of capital
stock ranking pari passu with the Series A Preferred Stock in the
distribution of assets or any liquidation, dissolution or winding
up."
5. The manner in which the foregoing amendment of the
Certificate of Incorporation was authorized is as follows: The
Board of Directors of the Corporation authorized the amendment
under the authority vested in said Board under the provisions of
the Certificate of Incorporation of the Company and of Section
502 of the Business Corporation Law.
IN WITNESS WHEREOF, we have subscribed this document on the
date hereof and do hereby affirm, under the penalties of perjury,
that the statements contained herein have been examined by us and
are true and correct.
DATE: December 13, 1989
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Chairman of the Board
By: /s/ M. Xxxx Xxxxxxx
Name: M. Xxxx Xxxxxxx
Title: Secretary