RIGHTS AGREEMENT
BETWEEN
CONCENTRA MANAGED CARE, INC.
AND
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
AS RIGHTS AGENT
Dated as of August ___, 1997
TABLE OF CONTENTS
Section 1. Certain Definitions...........................................-1-
Section 2. Appointment of Rights Agent..................................-11-
Section 3. Issue of Right Certificates..................................-11-
Section 4. Form of Right Certificates...................................-13-
Section 5. Execution, Authentication and Delivery.......................-16-
Section 6. Registration, Registration of Transfer and Exchange..........-16-
Section 7. Mutilated, Destroyed, Lost and Stolen Right Certificates.....-18-
Section 8. Exercise of Rights; Purchase Price; Expiration Date of
Rights......................................................-19-
Section 9. Cancellation and Destruction of Right Certificates...........-22-
Section 10. Reservation and Availability of Shares.......................-22-
Section 11. Record Date..................................................-23-
Section 12. Adjustment of Purchase Price, Number of Shares or Number
of Rights...................................................-24-
Section 13. Certificate of Adjusted Purchase Price or Number of
Shares......................................................-34-
Section 14. Consolidation, Merger or Sale or Transfer of Assets or
Earning Power...............................................-34-
Section 15. Fractional Rights and Fractional Shares......................-36-
Section 16. Rights of Action.............................................-38-
Section 17. Agreement of Right Holders...................................-39-
Section 18. Right Certificate Holder Not Deemed a Stockholder............-40-
Section 19. Concerning the Rights Agent..................................-41-
Section 20. Duties of Rights Agent.......................................-41-
Section 21. Merger or Consolidation or Change of Name of Rights
Agent.......................................................-44-
-i-
Section 22. Change of Rights Agent.......................................-45-
Section 23. Issuance of New Right Certificates...........................-47-
Section 24. Redemption...................................................-47-
Section 25. Mandatory Redemption and Exchange............................-48-
Section 26. Notice of Certain Events.....................................-50-
Section 27. Securities Laws Registrations................................-51-
Section 28. Notices......................................................-52-
Section 29. Supplements and Amendments...................................-53-
Section 30. Successors...................................................-54-
Section 31. Benefits of this Agreement...................................-54-
Section 32. Severability.................................................-54-
Section 33. Governing Law................................................-54-
Section 34. Counterparts.................................................-55-
Section 35. Descriptive Headings.........................................-55-
EXHIBITS
Exhibit A - Certificate of Designation of Preferred Shares Series A
Junior Participating Preferred Stock
Exhibit B - Form of Right Certificate
Exhibit C - Summary of Rights To Purchase Preferred Shares
-ii-
CONCENTRA MANAGED CARE, INC.
RIGHTS AGREEMENT
This Rights Agreement, dated as of August ______, 1997, is between
Concentra Managed Care, Inc., a Delaware corporation (the "COMPANY"), and
ChaseMellon Shareholder Services, L.L.C., as Rights Agent.
WHEREAS, the Board of Directors of the Company, having determined its
actions to be in the interests of the Company, has authorized the creation of
Rights, has authorized and directed the issuance to the Holders of record of
Common Shares of the Company outstanding on August ___, 1997 (the "RECORD
DATE"), of one Right with respect to each Common Share of the Company
outstanding on the Record Date, and has further authorized and directed the
issuance of one Right with respect to each Common Share that shall become
outstanding between the Record Date and the earlier of the Distribution Date,
the Redemption Date and the Final Expiration Date; and
WHEREAS, the Board of Directors of the Company has authorized and
directed that the terms and conditions under which the Rights are to be
distributed, including without limitation those affecting the exercise
thereof, the securities or other property to be acquired thereby and the
purchase price to be paid therefor, shall be set forth in a written agreement
between the Company and a rights agent made for the benefit of the holders of
the Rights to the extent so provided therein.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto agree as follows:
SECTION i. CERTAIN DEFINITIONS. For purposes of this Agreement, the
following terms shall have the meanings indicated:
a. "ACQUIRING PERSON" shall mean any Person who or which, together with
all Affiliates and Associates of such Person, shall be the Beneficial Owner
of 15% or more of the Voting Shares of the Company then outstanding, but
shall not include the Company, any Subsidiary of the Company, any employee
benefit plan of the Company or of any Subsidiary of the Company or any
trustee of or fiduciary with respect to any such plan when acting in such
capacity. Notwithstanding the foregoing, no Person shall become an
"Acquiring Person" as the result of an acquisition of Voting Shares by the
Company which, by reducing the number of shares outstanding, increases the
proportionate number of shares beneficially owned by such Person to 15% or
more of the Voting Shares of the Company then outstanding; PROVIDED, HOWEVER,
that, if a Person shall become the Beneficial Owner of 15% or more of the
Voting Shares of the Company then outstanding by reason of share purchases by
the Company and shall, after such share purchases by the Company and at a
time when such Person is the Beneficial Owner of 15% or more of the Voting
Shares of the Company then outstanding, become the Beneficial Owner of any
additional Voting Shares of the Company, then such Person shall be deemed to
be an "Acquiring Person". Notwithstanding the foregoing, if the Board of
Directors of the Company determines in good faith that a Person who would
otherwise be an "Acquiring Person," as defined pursuant to the foregoing
provisions of this paragraph (a), has become such inadvertently, and such
Person divests as promptly as practicable a sufficient number of Common
Shares so that such Person would no longer be an "Acquiring Person," as
defined pursuant to the foregoing provisions of this paragraph (a), then such
Person shall not be deemed to be an "Acquiring Person" for any purposes of
this Agreement.
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b. "aGREEMENT" shall mean this Rights Agreement as hereafter amended from
time to time.
c. "AFFILIATE" and "ASSOCIATE" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations
under the Exchange Act as in effect on the date of this Agreement.
d. A Person shall be deemed the "BENEFICIAL OWNER" of and shall be
deemed to "own beneficially" any securities which (without duplication):
i. such Person or any of such Person's Affiliates or Associates has
the right to acquire (whether such right is exercisable immediately or only
after the passage of time, compliance with regulatory requirements, the
fulfillment of a condition or otherwise) pursuant to any oral or written
agreement, arrangement or understanding (other than customary agreements with
and between underwriters and selling group members with respect to a bona
fide public offering of securities or in connection with a placement of
securities pursuant to Rule 144A under the Securities Act), or upon the
exercise of conversion rights, exchange rights, rights (other than these
Rights), warrants or options, or otherwise; or the right to vote pursuant to
any agreement, arrangement or understanding; PROVIDED, HOWEVER, that a Person
shall not be deemed the Beneficial Owner of, or to beneficially own,
securities tendered pursuant to a tender or exchange offer made by or on
behalf of such Person or any of such Person's Affiliates or Associates until
such tendered securities are accepted for purchase or exchange, or
securities issuable upon exercise of Rights at any time prior to any Person
becoming an Acquiring Person;
ii. such Person or any of such Person's Affiliates or Associates,
directly or indirectly, has the right to vote or dispose of or has
"beneficial ownership" of (as determined pursuant to Rule 13d-3 of the
Exchange Act), including 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, or to "beneficially own," any
security under this subparagraph (3) as a result of an agreement, arrangement
or understanding to vote such security which arises solely from a revocable
proxy or consent given to such Person in response to a public proxy or
consent solicitation made pursuant to, and in accordance with, the applicable
rules and regulations of the Exchange Act and is not also then reportable on
Schedule 13D under the Exchange Act (or any comparable or successor report);
or
iii. 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 oral or written agreement, arrangement or understanding
(other than customary agreements with and between underwriters and selling
group members with respect to a bona fide public offering of securities or
in connection with a placement of securities pursuant to Rule 144A under the
Securities Act) for the purpose of acquiring, holding, voting (other than
voting pursuant to a revocable proxy as contemplated by the proviso to
subparagraph (3) of this paragraph) or disposing of any securities of the
Company.
Notwithstanding anything in this definition to the contrary, the
phrase "then outstanding," when used with reference to a Person's
Beneficial Ownership of securities of the Company (or to the number of such
securities "beneficially owned"), shall mean the number of such securities
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then issued and outstanding together with the number of such securities not
then actually issued and outstanding which such Person would be deemed to
own beneficially hereunder.
e. "BUSINESS DAY" shall mean any day other than a Saturday, Sunday or a
day on which banking institutions in the Commonwealth of Massachusetts are
authorized or obligated by law or executive order to close.
f. "CLOSE OF BUSINESS" on any given date shall mean 5:00 P.M., Boston,
Massachusetts time, on such date; PROVIDED, HOWEVER, that if such date is not
a Business Day it shall mean 5:00 P.M., Boston, Massachusetts time, on the
next succeeding Business Day.
g. "CLOSING PRICE", with respect to any security, shall mean the last
sale price, regular way, on a specific Trading Day or, in case no such sale
takes place on such Trading Day, the average of the closing bid and asked
prices, regular way, in either case as reported in the principal consolidated
transaction reporting system with respect to securities listed or admitted to
trading on the New York Stock Exchange or, if such security is not then
listed or admitted to trading on the New York Stock Exchange, as reported in
the principal consolidated transaction reporting system with respect to
securities listed on the principal national securities exchange on which such
security is listed or admitted to trading or, if such security is not then
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 Quotations System or such
other system then in use, or, if on any such Trading Day such security is 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
security selected by the Board of Directors of the Company. If such security
is not publicly held or so listed or traded, "Closing Price" shall mean the
fair value per unit of such security as determined in good faith by the Board
of Directors of the Company, whose determination shall be described and the
Closing Price set forth in a statement filed with the Rights Agent.
"Common Shares" when used with reference to the Company shall mean shares of
capital stock of the Company which have no preference over any other class of
stock with respect to dividends or assets, which are not redeemable at the
option of the Company and with respect to which no sinking, purchase or
similar fund is provided and shall initially mean the shares of Common Stock,
par value $.01 per share, of the Company.
h. "COMMON SHARES" when used with reference to any Person other than the
Company shall, if used with reference to a corporation, mean the capital
stock (or equity interest) with the greatest voting power of such other
Person or, if such other Person is a Subsidiary of another Person, the Person
or Persons which ultimately control such first-mentioned Person and, if used
with reference to any other Person, mean the equity interest in such Person
(or, if the net worth determined in accordance with generally accepted
accounting principles of another Person (other than an individual) which
controls such first-mentioned Person is greater than such first-mentioned
Person, then such other Person) with the greatest voting power or managerial
power with respect to the business and affairs of such Person.
i. "COMPANY" shall mean Concentra Managed Care, Inc., a Delaware
corporation, and its successors.
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j. "COMPANY ORDER" means a written request or order signed in the name
of the Company by its Chairman of the Board, its President or a Vice
President, and by its Treasurer, an Assistant Treasurer, its Secretary or an
Assistant Secretary, and delivered to the Rights Agent.
k. "CONTINUING DIRECTOR" shall mean (1) any member of the Board of
Directors of the Company, who is not an Acquiring Person, or an Affiliate or
Associate of an Acquiring Person, or a representative of an Acquiring Person
or of any such Affiliate or Associate, or otherwise affiliated with an
Acquiring Person or of any such Affiliate or Associate, and was a member of
the Board immediately subsequent to the consummation of the Concentra Mergers
prior to the date of this Agreement, or (2) any Person who subsequently
becomes a member of the Board who is not an Acquiring Person, or an Affiliate
or Associate of an Acquiring Person, or a representative of an Acquiring
Person or of any such Affiliate or Associate or otherwise affiliated with an
Acquiring Person of any such Affiliate or Associate if such Person's
nomination for election or election or appointment to the Board is
recommended by a majority of the Continuing Directors.
l. "CORPORATE TRUST OFFICE" means the principal office of the Rights
Agent at which it administers its corporate trust business, which, in the
case of ChaseMellon Shareholder Services, L.L.C. shall, until hereafter
changed, be its office at 0000 Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000.
m. "DISTRIBUTION DATE" shall mean the earlier of the tenth Business Day
after the Shares Acquisition Date or the tenth Business Day (or such later
date as may be determined by action of the Board of Directors of the Company
prior to such time as any Person becomes an Acquiring Person) after the date
of commencement by any Person (other than the Company, any Subsidiary of the
Company, any employee benefit plan of the Company or of any Subsidiary of the
Company, or any trustee of or fiduciary with respect to any such plan when
acting in such capacity) of, or after the date of the first public
announcement of the intent of any Person (other than the Company, any
Subsidiary of the Company, any employee benefit plan of the Company or of any
Subsidiary of the Company, or any trustee of or fiduciary with respect to any
such plan when acting in such capacity) to commence, a tender or exchange
offer the consummation of which would result in any Person becoming the
Beneficial Owner of 15% or more of the then outstanding Voting Shares of the
Company; PROVIDED, HOWEVER, that an occurrence described in clause (1) of
this definition above shall not cause the occurrence of the Distribution Date
if the Board of Directors of the Company shall, prior to such tenth Business
Day (or such later date as described in clause (2) above), determine that
such tender or exchange offer is spurious, unless, thereafter, the Board of
Directors of the Company shall make a contrary determination, in which event
the Distribution Date shall occur on the later to occur of such tenth
Business Day (or such later date as described in clause (2) above) and the
date of such latter determination.
n. "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended, and any successor statute thereto.
o. "FINAL EXPIRATION DATE" shall mean the Close of Business on
August __, 2007.
p. "CONCENTRA MERGERS" shall mean the (i) merger of OccuSystems, Inc., a
Delaware corporation ("OCCUSYSTEMS"), with and into the Company with the
separate corporate existence of OccuSystems ceasing and (ii) the merger of a
wholly-owned subsidiary of the Company with and into CRA Managed Care, Inc., a
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Massachusetts corporation ("CRA"), with the separate corporate existence of
such subsidiary ceasing, pursuant to the terms of that certain Agreement and
Plan of Reorganization dated April 21, 1997, among OccuSystems, CRA and the
Company.
q. "PERSON" shall mean any individual, firm, corporation, partnership,
limited partnership, limited liability company, trust or other entity, and
shall include any successor (by merger or otherwise) of such entity.
r. "PREFERRED SHARES" shall mean shares of Series A Junior Participating
Preferred Stock, par value $.01 per share, of the Company having the rights
and preferences set forth in the form of Certificate of Designation of Series
A Junior Participating Preferred Stock attached hereto as EXHIBIT A.
s. "PURCHASE PRICE" shall mean the initial price at which the holder of
a Right may, subject to the terms and conditions of this Agreement, purchase
one one-thousandth (1/1000) of a Preferred Share (which initial price is set
forth in Section 8(b) hereof), as such price shall be adjusted pursuant to
the terms of this Agreement.
t. "REDEMPTION DATE" shall mean the time at which the Rights are
redeemed pursuant to Section 24 herein or the time at which all of the Rights
are mandatorily redeemed and exchanged pursuant to Section 25 hereof.
u. "REDEMPTION PRICE" shall have the meaning specified in Section 24(b)
herein.
v. "RIGHT" shall mean one preferred share purchase right which initially
represents the right of the registered holder thereof to purchase one
one-thousandth (1/1000) of a Preferred Share upon the terms and subject to
the conditions herein set forth.
w. "RIGHT CERTIFICATE" shall mean a certificate, in substantially the
form of EXHIBIT B attached to this Rights Agreement, evidencing the Rights
registered in the name of the holder thereof.
x. "RIGHTS AGENT" shall mean ChaseMellon Shareholder Services, L.L.C., a
Delaware corporation, and any successor thereto appointed in accordance with
the terms hereof, in its capacity as agent for the Company and the holders of
the Rights pursuant to this Agreement.
y. "RIGHTS REGISTER" and "RIGHTS REGISTRAR" shall have the meanings
specified in Section 6.
z. "SECURITIES ACT" shall mean the Securities Act of 1933, as amended,
and any successor statute thereto.
aa. "SHARES ACQUISITION DATE" shall mean the first date of public
announcement (which for purposes of this definition shall include without
limitation a report filed pursuant to Section 13(d) or Section 16(a) of the
Exchange Act) by the Company or an Acquiring Person that an Acquiring Person
has become such.
bb. "SUBSIDIARY" of any Person shall mean any corporation or other entity
of which a majority of the outstanding capital stock or other equity
interests having ordinary voting power in the election of directors or
similar officials is owned, directly or indirectly, by such Person.
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cc. "SUMMARY OF RIGHTS" shall mean a Summary of Rights to Purchase
Preferred Shares in substantially the form attached as EXHIBIT C to this
Agreement.
dd. "TRADING DAY" shall mean a day on which the principal national
securities exchange on which any of the Voting Shares of the Company are
listed or admitted to trading is open for the transaction of business or, if
none of the Voting Shares of the Company is listed or admitted to trading on
any national stock exchange, a Business Day.
ee. "VOTING SHARES" shall mean the Common Shares of the Company and any
other shares of capital stock of the Company entitled to vote generally in
the election of directors or entitled to vote together with the Common Shares
in respect of any merger or consolidation of the Company, any sale of all or
substantially all of the Company's assets or any liquidation, dissolution or
winding up of the Company. Whenever any provision of this Agreement requires
a determination of whether a number of Voting Shares comprising a specified
percentage of such Voting Shares is, was or will be beneficially owned or has
been voted, tendered, acquired, sold or otherwise disposed of or a
determination of whether a Person has offered or proposed to acquire a number
of Voting Shares comprising such specified percentage, the number of Voting
Shares comprising such specified percentage of Voting Shares shall in every
such case be deemed to be the number of Voting Shares comprising the
specified percentage of all the Company's then outstanding Voting Shares.
ff. "WHOLLY-OWNED SUBSIDIARY" of a Person shall mean any corporation or
other entity all the outstanding capital stock or other equity interests of
which having ordinary voting power in the election of directors or similar
officials (other than directors' qualifying shares or similar interests) are
owned, directly or indirectly, by such Person.
SECTION i. APPOINTMENT OF RIGHTS AGENT. The Company hereby appoints the
Rights Agent to act as agent for the Company and the holders of the Rights
(who, in accordance with Section 3 hereof, shall prior to the Distribution
Date also be the holders of the Common Shares of the Company) in accordance
with the terms and conditions hereof, and the Rights Agent hereby accepts
such appointment. The Company may from time to time appoint such co-Rights
Agents as it may deem necessary or desirable.
SECTION ii. ISSUE OF RIGHT CERTIFICATES. Until the Distribution Date,
outstanding Rights will be evidenced (subject to the provisions of paragraph
(b) of this Section 3) by the certificates for outstanding Common Shares of
the Company and not by separate Right Certificates, and the right to receive
Right Certificates will be transferable only in connection with the transfer
of Common Shares of the Company. As soon as practicable after the
Distribution Date, the Company will prepare and execute, and the Rights Agent
will countersign and send, by first-class, insured, postage-prepaid mail, to
each record holder of Common Shares of the Company as of the Close of
Business on the Distribution Date, at the address of such holder shown on the
stock transfer records of the Company, a Right Certificate evidencing one
Right for each Common Share so held, subject to adjustments as provided
herein. From and after the Distribution Date, the Rights will be evidenced
solely by such Right Certificates.
gg. On the Record Date, or as soon thereafter as practicable, the
Company will send a copy of a Summary of Rights, by first-class,
postage-prepaid mail, to each record holder of
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Common Shares of the Company as of the Close of Business on the Record Date,
at the address of such holder shown on the stock transfer records of the
Company. With respect to Common Shares outstanding on the Record Date, the
certificates evidencing such Common Shares shall, together with copies of
such Summary of Rights, thereafter also evidence the outstanding Rights (as
such Rights may be amended or supplemented) distributed with respect thereto
until the earlier of the Distribution Date or the date of surrender thereof
to the Company's transfer agent for registration of transfer or exchange of
Common Shares. Until the Distribution Date (or, if earlier, the Redemption
Date or Final Expiration Date), the surrender for registration of transfer or
exchange of any certificate for Common Shares outstanding as of the Close of
Business on the Record Date, with or without a copy of the Summary of Rights
attached thereto, shall also constitute the surrender for registration of
transfer or exchange of the outstanding Rights associated with the Common
Shares represented thereby.
hh. The Company agrees that, at any time after the Record Date and prior
to the Distribution Date (or, if earlier, the Redemption Date or Final
Expiration Date) at which it issues any of its Common Shares upon original
issue or out of treasury, it will concurrently distribute to the holder of
such Common Shares one Right for each such Common Share, which Right shall be
subject to the terms and provisions of this Agreement and will evidence the
right to purchase the same number of one one-thousandths (1/1000) of a
Preferred Share at the same Purchase Price as the Rights then outstanding.
ii. Certificates for Common Shares issued after the Record Date but
prior to the earliest of the Distribution Date, the Redemption Date and the
Final Expiration Date, whether upon registration of transfer or exchange of
Common Shares outstanding on the Record Date or upon original issue or out of
treasury thereafter, shall have impressed on, printed on, written on or
otherwise affixed to them the following legend:
This certificate also evidences and entitles the holder hereof to
certain Rights as set forth in a Rights Agreement between Concentra
Managed Care, Inc. and ChaseMellon Shareholder Services, L.L.C., dated
as of August ____, 1997 (the "RIGHTS AGREEMENT"), the terms of which
are hereby incorporated herein by reference and a copy of which is on
file at the principal executive offices of Concentra Managed Care,
Inc. 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. Concentra Managed
Care, Inc. will mail to the holder of this certificate a copy of the
Rights Agreement without charge after receipt of a written request
therefor. As described in the Rights Agreement, Rights issued to or
acquired by any Acquiring Person or any Affiliate or Associate thereof
(each as defined in the Rights Agreement) shall, under certain
circumstances, become null and void.
With respect to certificates containing the foregoing legend, until the
earlier of the Distribution Date or the Final Expiration Date, outstanding
Rights associated with the Common Shares represented by such certificates
shall be evidenced by such certificates alone, and the surrender of any such
certificate for registration of transfer or exchange of the Common Shares
evidenced thereby shall also constitute surrender for registration of
transfer or exchange of the outstanding Rights (as such Rights may be amended
or supplemented) associated with the Common Shares represented thereby.
jj. If the Company purchases or acquires any of its Common Shares after
the Record Date, but prior to the Distribution Date, any Rights associated
with such Common Shares shall be deemed canceled and retired so that the
Company shall not be entitled to exercise any Rights associated with the
Common Shares which are no longer outstanding.
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SECTION i. FORM OF RIGHT CERTIFICATES. The form of Right Certificates
(and the forms of election to purchase Preferred Shares (or other securities)
and of assignment to be printed on the reverse thereof) shall in form and
substance be substantially the same as EXHIBIT B 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, as may be required to
comply with any applicable law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on which the
Rights may from time to time be listed or as may be necessary to conform to
usage. Subject to the provisions of Section 23 hereof, the Right
Certificates, whenever issued, shall be dated as of the date of
authentication thereof, but, regardless of any adjustments of the Purchase
Price or the number of Preferred Shares (or other securities) as to which a
Right is exercisable (whether pursuant to this Agreement or any future
amendments or supplements to this Agreement), or both, occurring after the
Record Date and prior to the date of such authentication, such Right
Certificates may, on their face, without invalidating or otherwise affecting
any such adjustment, expressly entitle the holders thereof to purchase such
number of Preferred Shares at the Purchase Price per one one-thousandth
(1/1000) of a Preferred Share as to which a Right would be exercisable if the
Distribution Date were the Record Date; no adjustment of the Purchase Price
or the number of Preferred Shares (or other securities) as to which a Right
is exercisable, or both, effected subsequent to the date of authentication of
any Right Certificate shall be invalidated or otherwise affected by the fact
that such adjustment is not expressly reflected on the face or in the
provisions of such Right Certificate.
kk. Pending the preparation of definitive Right Certificates, the
Company may execute, and upon Company Order the Rights Agent shall
authenticate and send, by first-class, insured, postage-prepaid mail, to each
record holder of Common Shares of the Company as of the Close of Business on
the Distribution Date, temporary Right Certificates which are printed,
lithographed, typewritten, mimeographed or otherwise produced substantially
of the tenor of the definitive Right Certificates in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Right Certificates may
determine, as evidenced by their execution of such Right Certificates.
ll. If temporary Right Certificates are issued, the Company will cause
definitive Right Certificates to be prepared without unreasonable delay.
After the preparation of definitive Right Certificates, the temporary Right
Certificates shall be exchangeable for definitive Right Certificates, upon
surrender of the temporary Right Certificates at the Corporate Trust Office
of the Rights Agent, without charge to the holder. Upon surrender for
cancellation of any one or more temporary Right Certificates, the Company
shall execute and the Rights Agent shall authenticate and deliver in exchange
therefor one or more definitive Right Certificates, evidencing a like number
of Rights. Until so exchanged, the temporary Right Certificates shall in all
respects be entitled to the same benefits under this Agreement as definitive
Right Certificates.
mm. Any Right Certificate issued pursuant to Section 3(a) or Section 23
hereof that represents Rights beneficially owned by an Acquiring Person or
any Associate or Affiliate of an Acquiring Person, a transferee of an
Acquiring Person (or of any such Associate or
8
Affiliate) who becomes a transferee after the Acquiring Person becomes such,
or a transferee of an Acquiring Person (or of any such Associate or
Affiliate) who becomes a transferee prior to or concurrently with the
Acquiring Person becoming such and receives such Rights pursuant to either a
transfer (whether or not for consideration) from the Acquiring Person to
holders of equity interests in such Acquiring Person or to any Person with
whom such Acquiring Person has any continuing agreement, arrangement or
understanding regarding the transferred Rights or a transfer which the Board
of Directors has determined is part of a plan, arrangement or understanding
which has as a primary purpose or effect avoidance of Section 8(e) hereof,
and any Right Certificate issued pursuant to Section 6 or Section 7 hereof
upon transfer, exchange, replacement or adjustment of any other Right
Certificate referred to in this sentence, shall contain (to the extent
feasible) the following legend:
The Rights represented by this Right 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 Right Certificate and the
Rights represented hereby may become null and void in the
circumstances specified in Section 8(e) of such Agreement.
SECTION i. EXECUTION, AUTHENTICATION AND DELIVERY. The Right
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 Right
Certificates may be manual or facsimile.
nn. Right Certificates bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Right Certificates or did not hold such offices at the date of authentication
of such Right Certificates. At any time and from time to time after the
execution and delivery of this Agreement and prior to the Distribution Date,
the Company may deliver Right Certificates executed by the Company to the
Rights Agent for authentication, together with a Company Order for the
authentication and delivery of such Right Certificates; and the Rights Agent
in accordance with such Company Order shall authenticate and deliver such
Right Certificates as in this Agreement provided and not otherwise.
oo. No Right Certificate shall be entitled to any benefit under this
Agreement or be valid or obligatory for any purpose unless there appears on
such Right Certificate a certificate of authentication substantially in the
form provided for herein executed by the Rights Agent by manual signature,
and such certificate upon any Right Certificate shall be conclusive evidence,
and the only evidence, that such Right Certificate has been duly
authenticated and delivered hereunder.
SECTION i. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE. From
and after the Distribution Date and prior to the earlier of the Redemption
Date and the Final Expiration Date, the Company shall cause to be kept at the
Corporate Trust Office of the Rights Agent a Rights Register (a "RIGHTS
REGISTER") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Right
Certificates and of transfers of Rights. The Rights Agent is hereby
appointed the registrar and transfer agent (the "RIGHTS
9
REGISTRAR") for the purpose of registering Right Certificates and transfers
of Rights as herein provided and the Rights Agent agrees to maintain such
Rights Register in accordance with such regulations so long as it continues
to be designated as Rights Registrar hereunder.
pp. Upon surrender to the Rights Agent for registration of transfer of
any Right Certificate, the Company shall execute, and the Rights Agent shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Right Certificates evidencing a like number of
Rights.
qq. At the option of the holder, Right Certificates may be exchanged for
other Right Certificates upon surrender of the Right Certificates to be
exchanged to the Rights Agent. Whenever any Right Certificates are so
surrendered for exchange, the Company shall execute, and the Rights Agent
shall authenticate and deliver, the Right Certificates which the holder
making the exchange is entitled to receive.
rr. All Right Certificates issued upon any registration of transfer or
exchange of Right Certificates shall be the valid obligations of the Company,
evidencing the same Rights, and entitled to the same benefits under this
Agreement, as the Right Certificates surrendered upon such registration of
transfer or exchange.
ss. Every Right Certificate presented or surrendered for registration of
transfer or exchange shall (if so required by the Company or the Rights
Agent) be duly endorsed, or accompanied by a written instrument of transfer
in form satisfactory to the Company and the Rights Registrar duly executed,
by the holder thereof or his attorney duly authorized in writing.
tt. No service charge shall be made for any registration of transfer or
exchange of Right Certificates, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Right
Certificates, other than exchanges not involving any transfer.
uu. The provisions of this Section 6 shall be subject to the provisions
of Section 4(d), Section 8(e) and Section 15.
SECTION i. MUTILATED, DESTROYED, LOST AND STOLEN RIGHT CERTIFICATES.
If any mutilated Right Certificate is surrendered to the Rights Agent, the
Company shall execute and the Rights Agent shall authenticate and deliver in
exchange therefor a new Right Certificate of like tenor, for a like number of
Rights and bearing a registration number not contemporaneously outstanding.
vv. If there shall be delivered to the Company and the Rights Agent
evidence to their satisfaction of the destruction, loss or theft of a Right
Certificate and such security or indemnity, if any, as may be required by
them to save each of them and any agent of either of them harmless, then, in
the absence of notice to the Company or the Rights Agent that such Right
Certificate has been acquired by a bona fide purchaser, the Company shall
execute and upon its request the Rights Agent shall authenticate and deliver,
in lieu of any such destroyed, lost or stolen Right Certificate, a new Right
Certificate of like tenor, for a like number of Rights and bearing a
registration number not contemporaneously outstanding.
ww. Upon the issuance of any new Right Certificate under this Section,
the Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Rights Agent)
connected therewith.
10
xx. Every new Right Certificate issued pursuant to this Section in lieu
of any destroyed, lost or stolen Right Certificate shall constitute an
additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Right Certificate shall be at any time enforceable
by anyone, and shall be entitled to all the benefits of this Agreement
equally and proportionately with any and all other Right Certificates duly
issued hereunder.
yy. The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Right
Certificates.
SECTION i. EXERCISE OF RIGHTS; PURCHASE PRICE; EXPIRATION DATE OF
RIGHTS. Subject to the provisions of Section 8(e) hereof, the registered
holder of any Right Certificate may exercise the Rights evidenced thereby
(except as otherwise provided herein) in whole or in part at any time after
the Distribution Date upon surrender of the Right Certificate, with the form
of election to purchase on the reverse side thereof duly executed, to the
Rights Agent at its Corporate Trust Office, together with payment of the
Purchase Price for each one one-thousandth (1/1000) of a Preferred Share (or
other securities) as to which the Rights are exercised, at or prior to the
earliest of the Close of Business on the Final Expiration Date, the time of
redemption on the Redemption Date or the time at which such Rights are
mandatorily redeemed and exchanged as provided in Section 25 hereof.
zz. The Purchase Price for each one one-thousandth (1/1000) of a
Preferred Share pursuant to the exercise of a Right shall initially be
$_________, shall be subject to adjustment from time to time as provided in
Sections 12 and 14 hereof and shall be payable in lawful money of the United
States of America in accordance with paragraph (c) below.
aaa. Upon receipt of a Right Certificate representing exercisable Rights,
with the form of election to purchase duly executed, accompanied by payment
of the Purchase Price for the securities to be purchased and an amount equal
to any applicable transfer tax required to be paid by the holder of such
Right Certificate in accordance with Section 10 in cash, or by certified
check or cashier's check payable to the order of the Company, the Rights
Agent shall thereupon promptly requisition from any transfer agent of the
Preferred Shares (or other securities) certificates for such number of one
one-thousandths of a Preferred Share (or other securities) as are to be
purchased and registered in such name or names as may be designated by the
registered holder of such Right Certificate or, if appropriate, in the name
of a depositary agent or its nominee, and the Company hereby irrevocably
authorizes its transfer agent to comply with all such requests, or if the
Company shall have elected to deposit the total number of Preferred Shares
issuable upon exercise of the Rights hereunder with a depositary agent,
requisition from such depositary agent appointed by the Company, depositary
receipts representing such number of one one-thousandths of a Preferred Share
as are to be purchased and registered in such name or names as may be
designated by such holder (in which case certificates for the Preferred
Shares represented by such receipts shall be deposited by the transfer agent
with such depositary agent), and the Company hereby directs such depositary
agent to comply with all such requests, when appropriate, requisition from
the Company the amount of cash to be paid in lieu of issuance of fractional
shares in accordance with Section 15 hereof, promptly after receipt of such
certificates or depositary receipts registered in such name or names as may
be designated by such holder, cause the same to be delivered to or upon the
order of the registered holder of such Right Certificate and when
appropriate,
11
after receipt, promptly deliver such cash to or upon the order of such
holder. In the event that the Company is obligated to issue other securities
(including Common Shares) of the Company, pay cash and/or distribute other
property pursuant to Section 12(a) hereof, the Company will make all
arrangements necessary so that other securities, cash and/or other property
are available for distribution by the Rights Agent, if and when appropriate.
bbb. If the registered holder of the Right Certificate shall exercise
less than all the Rights evidenced thereby, a new Right Certificate
evidencing Rights equal to the Rights remaining unexercised shall be issued
by the Rights Agent to the registered holder of such Right Certificate or to
his duly authorized assigns, subject to the provisions of Section 15 hereof.
ccc. Notwithstanding anything in this Agreement to the contrary, if any
Person shall become an Acquiring Person, thereafter any Rights beneficially
owned by such Acquiring Person or an Associate or Affiliate of such
Acquiring Person, a transferee of such Acquiring Person (or of any such
Associate or Affiliate) who becomes a transferee after the Acquiring Person
becomes such, or a transferee of an Acquiring Person (or of any such
Associate or Affiliate) who becomes a transferee prior to or concurrently
with the Acquiring Person becoming such and receives such Rights pursuant to
either a transfer (whether or not for consideration) from the Acquiring
Person to holders of equity interests in such Acquiring Person or to any
Person with whom the Acquiring Person has any continuing agreement,
arrangement or understanding regarding the transferred Rights or a transfer
which the Board of Directors has determined is part of a plan, arrangement or
understanding which has as a primary purpose or effect the avoidance of this
Section 8(e), shall become 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 insure that the provisions of
this Section 8(e) and Section 4(d) hereof are complied with, but shall have
no liability to any holder of Right Certificates or other Person as a result
of its failure to make any determinations with respect to any Acquiring
Person or its Affiliates, Associates or transferees hereunder.
SECTION i. CANCELLATION AND DESTRUCTION OF RIGHT CERTIFICATES. All
Right Certificates surrendered for the purpose of exercise, transfer, split
up or exchange shall, if surrendered to the Company or to any of its other
agents, be delivered to the Rights Agent for such purpose and for
cancellation or, if surrendered to the Rights Agent for such purpose, shall
be canceled by it. No Right Certificates shall be authenticated in lieu of
or in exchange for any Right Certificates canceled as provided in this
Section except as expressly permitted by any of the provisions of this
Agreement. The Company shall deliver to the Rights Agent for cancellation
and retirement, and the Rights Agent shall so cancel and retire, any other
Right Certificate purchased or acquired by the Company otherwise than upon
the exercise thereof. The Rights Agent shall deliver all canceled Right
Certificates to the Company, or shall, pursuant to a Company Order, destroy
such canceled Right Certificates and in such case shall deliver a certificate
of destruction thereof to the Company.
SECTION ii. RESERVATION AND AVAILABILITY OF SHARES. The Company
covenants and agrees that it will cause to be reserved and kept available out
of its authorized and unissued Preferred Shares or any Preferred Shares held
in its treasury, the number of Preferred Shares that will be sufficient to
permit the exercise in full of all outstanding Rights.
12
ddd. The Company further covenants and agrees that it will, from and
after the Distribution Date, cause to be reserved and kept available out of
its authorized and unissued Common Shares or any Common Shares held in its
treasury, the number of Common Shares of the Company that will be sufficient
to permit the exercise in full of all outstanding Rights if adjusted pursuant
to Section 12(a)(2).
eee. The Company covenants and agrees that it will take all such action
as may be necessary to ensure that all Preferred Shares or Common Shares of
the Company issued upon exercise of Rights shall (subject to payment of the
Purchase Price) at the time of delivery of the certificates representing any
such Preferred Shares or Common Shares be duly authorized, validly issued,
fully paid and nonassessable. The Company further covenants and agrees that
it will pay when due and payable any and all federal and state transfer taxes
and charges which may be payable in respect of the issuance or delivery of
the Right Certificates or of any Preferred Shares (or depositary receipts
therefor) or Common Shares of the Company upon the exercise of Rights. The
Company shall not, however, be required to pay any transfer tax which may be
payable in respect of any transfer or delivery of Right Certificates to a
Person other than, or in respect of the issuance or delivery of certificates
or depositary receipts for the Preferred Shares or Common Shares of the
Company upon exercise of Rights evidenced by Right Certificates in a name
other than that of, the registered holder of the Right Certificate evidencing
Rights surrendered for transfer or exercise or to issue or deliver any
certificates or depositary receipts for Preferred Shares or Common Shares of
the Company upon the exercise of any Rights until any such tax shall have
been paid (any such tax being payable by the holder of such Right Certificate
at the time of surrender thereof) or until it has been established to the
Company's satisfaction that no such tax is due.
fff. So long as the Common Shares issuable and deliverable upon the
exercise of the Rights may be listed on any national securities exchange, the
Company shall use its best efforts to promptly cause, from and after such
time as the Rights become exercisable, all Common Shares and other securities
reserved for such issuance to be listed on such exchange upon official notice
of issuance upon such exercise.
SECTION i. RECORD DATE. Each Person in whose name any certificate for
Preferred Shares or Common Shares of the Company is issued upon the exercise
of, or upon mandatory redemption and exchange of, Rights shall for all
purposes be deemed to have become the holder of record of the Preferred
Shares or Common Shares represented thereby on, and such certificate shall be
dated, in the case of the exercise of Rights, the date upon which the Right
Certificate evidencing such Rights was duly surrendered and payment of the
Purchase Price (and any applicable transfer taxes) was made, or in the case
of the mandatory redemption and exchange of Rights, the date of such
mandatory redemption and exchange; PROVIDED, HOWEVER, that, if the date of
such surrender and payment or mandatory redemption and exchange is a date
upon which the transfer books of the Company for its Preferred Shares or
Common Shares, as the case may be, are closed, such Person shall be deemed to
have become the record holder of such shares on, and such certificate shall
be dated, the next succeeding Business Day on which such transfer books of
the Company are open. Prior to the exercise of (or the mandatory redemption
and exchange of) the Rights evidenced thereby, the holder of a Right
Certificate shall not be entitled to any rights of a holder of Preferred
Shares (or Common Shares of the Company) for which the Rights shall be
exercisable, including without limitation the rights to vote, to receive
dividends or other distributions or to exercise any preemptive rights, and
shall not be entitled to receive any notice of any proceedings of the
Company, except as provided herein.
13
SECTION ii. ADJUSTMENT OF PURCHASE PRICE, NUMBER OF SHARES OR NUMBER OF
RIGHTS. The Purchase Price, the number and kind of shares of capital stock
of the Company covered by each Right and the number of Rights outstanding are
subject to adjustment from time to time as provided in this Section 12.
ggg. If the Company shall at any time after the date of this Agreement
declare a dividend on the Preferred Shares payable in Preferred Shares,
subdivide the outstanding Preferred Shares, combine the outstanding
Preferred Shares into a smaller number of Preferred Shares or issue any
shares of its capital stock in a reclassification of the Preferred Shares
(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 12(a), the Purchase Price in
effect at the time of the record date for such dividend or of the effective
date of such subdivision, combination or reclassification, and the number and
kind of shares of capital stock issuable on such date, shall be
proportionately adjusted so that the holder of any Right exercised thereafter
shall be entitled to receive, upon payment of the Purchase Price for the
number of one one-thousandths of a Preferred Share for which a Right was
exercisable immediately prior to such date, the aggregate number and kind of
shares of capital stock which, if such Right had been duly exercised
immediately prior to such date (at a time when the Preferred Shares transfer
books of the Company were open), such holder would have acquired upon such
exercise and been entitled to receive upon payment or effectuation of such
dividend, subdivision, combination or reclassification; PROVIDED, HOWEVER,
that in no event shall the consideration to be paid upon the exercise of one
Right be less than the aggregate par value of the shares of capital stock of
the Company issuable upon exercise of one Right. If an event occurs which
would require an adjustment under both Section 12(a)(1) and Section 12(a)(2),
the adjustment provided for in this Section 12(a)(1) shall be in addition to,
and shall be made prior to, any adjustment required pursuant to Section
12(a)(2).
i. Subject to action of the Board of Directors of the Company
pursuant to Section 25 of this Agreement, if any Person shall become an
Acquiring Person, each holder of a Right shall thereafter have a right to
receive, upon exercise thereof at a price equal to the then current Purchase
Price multiplied by the number of one one-thousandths of a Preferred Share
for which a Right is then exercisable, in accordance with the terms of this
Agreement and in lieu of Preferred Shares, such number of Common Shares of
the Company as shall equal the result obtained by (x) multiplying the then
current Purchase Price by the number of one one-thousandths of a Preferred
Share for which a Right is then exercisable and dividing that product by (y)
50% of the then current per share market price of the Company's Common Shares
(determined pursuant to Section 12(d)) on the date such Person became an
Acquiring Person. If any Person shall become an Acquiring Person and the
Rights shall then be outstanding, the Company shall not take any action which
would eliminate or diminish the benefits intended to be afforded by the
Rights.
ii. If on or after the Distribution Date there shall not be
sufficient Common Shares issued but not outstanding, or authorized but
unissued, to permit the exercise in full of all outstanding Rights in
accordance with the foregoing subparagraph (2) of this Section 12(a), the
Company agrees to take all such action as is within its power, including
without limitation appropriate action by its Board of Directors, as may be
necessary to amend the Company's charter to authorize additional Common
Shares for issuance upon exercise of the Rights. If, notwithstanding the
foregoing, the stockholders shall not approve an
14
amendment to the Company's charter authorizing such additional Common Shares,
the adjustment prescribed in Section 12(a)(2) shall not be made but, in lieu
thereof, each holder of a Right shall thereafter have the right to receive,
upon exercise thereof in accordance with the terms of this Agreement, such
number of one one-thousandths of Preferred Shares as shall equal the result
obtained by (x) multiplying the then current Purchase Price by the number of
one one-thousandths of a Preferred Share for which a Right is then
exercisable and dividing that product by (y) 50% of the then current per
share market price of one one-thousandth of a Preferred Share (determined
pursuant to Section 12(d)) on the date such Person became an Acquiring
Person.
hhh. If the Company shall fix a record date for the issuance of rights,
options or warrants to all holders of Preferred Shares entitling them (for a
period expiring within 45 calendar days after such record date) to subscribe
for or purchase Preferred Shares (or shares having the same rights,
privileges and preferences as the Preferred Shares ("EQUIVALENT PREFERRED
SHARES")) or securities convertible into or exchangeable for Preferred Shares
or equivalent preferred shares at a price per Preferred Share or equivalent
preferred share (together with any additional consideration required upon
conversion or exchange in the case of a security convertible into or
exchangeable for Preferred Shares or equivalent preferred shares), less than
the current per share market price of the Preferred Shares (determined
pursuant to Section 12(d) 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 number of Preferred Shares outstanding on
such record date plus the number of Preferred Shares which the aggregate
offering price of the total number of Preferred Shares and/or equivalent
preferred shares so to be offered (together with the aggregate of any
additional consideration required upon conversion or exchange in the case of
any convertible or exchangeable securities so to be offered) would purchase
at such current market price and the denominator of which shall be the number
of Preferred Shares outstanding on such record date plus the number of
additional Preferred Shares and/or equivalent preferred shares to be offered
for subscription or purchase (or into or for which the convertible or
exchangeable securities so to be offered are initially convertible or
exchangeable); PROVIDED, HOWEVER, that in no event shall the consideration to
be paid upon the exercise of one Right be less than the aggregate par value
of the shares of capital stock of the Company issuable upon exercise of one
Right. In case all or part of such subscription or purchase price may be
paid in a form other than cash, the value of such consideration shall be as
determined in good faith by the Board of Directors of the Company, whose
determination shall be described in a statement filed with the Rights Agent.
Preferred Shares owned by or held for the account of the Company or any of
its Subsidiaries shall not be deemed outstanding for the purpose of any
computation described in this Section 12(b). The adjustment described in this
Section 12(b) shall be made successively whenever such a record date is
fixed; and, if none of such rights, options or warrants are 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.
iii. If the Company shall fix a record date for the making of a
distribution to all holders of the Preferred Shares (including any such
distribution made in connection with a consolidation or merger in which the
Company is the continuing or surviving corporation) of evidences of
indebtedness or assets (other than a regular quarterly cash dividend or a
dividend payable in Preferred Shares) or subscription rights or warrants
(excluding those referred to in Section 12(b)), 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,
15
the numerator of which shall be the then current per share market price of
the Preferred Shares (determined pursuant to Section 12(d)) on such record
date, less the fair market value (as determined in good faith by the Board of
Directors of the Company, whose determination shall be described in a
statement filed with the Rights Agent) of the portion of the assets or
evidences of indebtedness so to be distributed or of such subscription rights
or warrants applicable to one Preferred Share and the denominator of which
shall be such current per share market price of the Preferred Shares;
PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon
the exercise of one Right be less than the aggregate par value of the shares
of capital stock of the Company to be issued upon the exercise of one Right.
Such adjustments shall be made successively whenever such a record date is
fixed; and, if such distribution is not so made, the Purchase Price shall
again be adjusted to be the Purchase Price which would then be in effect if
such record date had not been fixed.
jjj. For the purpose of any computation hereunder, the "CURRENT PER SHARE
MARKET PRICE" of the Common Shares on any date shall be deemed to be the
average of the daily Closing Prices per share of such Common Shares for the
30 consecutive Trading Days immediately prior to such date; PROVIDED,
HOWEVER, that, if the issuer of such Common Shares shall announce a dividend
or distribution on such Common Shares payable in such Common Shares or
securities convertible into such Common Shares or any subdivision,
combination or reclassification of such Common Shares, and the ex-dividend
date for such dividend or distribution, or the record date for such
subdivision, combination or reclassification, shall occur during such period
of 30 Trading Days, then, and in each such case, the current per share market
price of the Common Shares shall be appropriately adjusted to reflect the
current market price per Common Share equivalent.
i. For the purpose of any computation hereunder, the "current per
share market price" of the Preferred Shares shall be determined in the same
manner as set forth above for Common Shares in paragraph (1) of this Section
12(d). If the current per share market price of the Preferred Shares cannot
be determined in the manner provided above, the "current per share market
price" of the Preferred Shares shall be conclusively deemed to be the current
per share market price of the Common Shares (determined in the manner
provided above) multiplied by one thousand.
kkk. No adjustment in the Purchase Price shall be required unless such
adjustment would require an increase or decrease of at least 1% in the
Purchase Price; PROVIDED, HOWEVER, that any adjustments which by reason of
this Section 12(e) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment. All calculations under this
Section 12 shall be made to the nearest cent or to the nearest ten-thousandth
of a Common Share or other share or one ten-millionth of a Preferred Share,
as the case may be, and references herein to the "NUMBER OF ONE
ONE-THOUSANDTHS OF A PREFERRED SHARE" (or similar phrases) shall be construed
to include fractions of one one-thousandth of a Preferred Share.
Notwithstanding the first sentence of this Section 12(e), any adjustment
required by this Section 12 shall be made no later than the earlier of three
years from the date of the transaction which requires such adjustment or the
thirtieth day preceding the Final Expiration Date.
lll. If as a result of an adjustment made pursuant to Section 12(a), the
holder of any Right thereafter exercised shall become entitled to receive any
shares of capital stock of the Company other than Preferred Shares,
thereafter the number of such other shares so receivable upon exercise of any
Right shall be subject to adjustment from time to time in a
16
manner and on terms as nearly equivalent as practicable to the provisions
with respect to the shares contained in this Section 12, and the provisions
of this Agreement, including without limitation Sections 8, 10, 11 and 14,
with respect to the Preferred Shares shall apply on like terms to any such
other shares.
mmm. All Rights originally issued by the Company subsequent to any
adjustment made to the Purchase Price hereunder shall, whether or not the
Right Certificate evidencing such Rights reflects such adjusted Purchase
Price, evidence the right to purchase, at the adjusted Purchase Price, the
number of one one-thousandths of a Preferred Share purchasable from time to
time hereunder upon exercise of the Rights, all subject to further adjustment
as provided herein.
nnn. Unless the Company shall have exercised its election as provided in
Section 12(i), upon each adjustment of the Purchase Price pursuant to Section
12(b) or 12(c), each Right outstanding immediately prior to the making of
such adjustment shall thereafter evidence the right to purchase, at the
adjusted Purchase Price per one one-thousandth of a Preferred Share, that
number of one one-thousandths of a Preferred Share obtained by multiplying
(x) the number of one-thousandths of a share 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 dividing the product so
obtained by the Purchase Price in effect immediately after such adjustment of
the Purchase Price.
ooo. The Company may elect on or after the date of any adjustment of the
Purchase Price to adjust the number of Rights outstanding in lieu of any
adjustment in the number of one one-thousandths of a Preferred Share
purchasable upon the exercise of a Right. Each Right outstanding after such
adjustment of the number of Rights shall be exercisable for the number of one
one-thousandths of a Preferred Share for which a Right was exercisable
immediately prior to such adjustment of the Purchase Price. Each Right held
of record prior to such adjustment of the number of Rights shall become that
number of Rights (calculated to the nearest one 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 Right Certificates have been
issued, shall be at least ten days later than the date of the public
announcement. Until such record date, however, any adjustment in the number
of one one-thousandths of a Preferred Share for which a Right shall be
exercisable made as required by this Agreement shall remain in effect. If
Right Certificates have been issued, upon each adjustment of the number of
Rights pursuant to this Section 12(i), the Company shall, as promptly as
practicable, cause to be distributed to holders of record of Right
Certificates on such record date Right Certificates evidencing, subject to
Section 15 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 Right Certificates held by such holders prior to the date
of adjustment, and upon surrender thereof, if required by the Company, new
Right Certificates evidencing all the Rights to which such holders shall be
entitled after such adjustment. Right Certificates so to be distributed
shall be issued, executed and authenticated in the manner provided for herein
and shall be registered in the names of the holders of record of Right
Certificates on the record date specified in the public announcement.
17
ppp. Irrespective of any adjustment or change in the Purchase Price or
the number of one one-thousandths of a Preferred Share issuable upon the
exercise of the Rights, the Right Certificates theretofore and thereafter
issued may continue to express the Purchase Price and the number of one
one-thousandths of a Preferred Share which were expressed in the initial
Right Certificates issued hereunder.
qqq. Before taking any action that would cause an adjustment reducing
the Purchase Price below one one-thousandth of the amount of consideration
per Preferred Share determined by the Board of Directors of the Company to be
capital, or below one one-thousandth of the par value, if any, per Preferred
Share issuable upon exercise of the Rights, the Company agrees to take such
corporate action as is within its power, including without limitation
appropriate action by its Board of Directors, and which is, in the opinion of
its counsel, necessary in order that the Company may validly and legally
issue fully paid and nonassessable one one-thousandths of Preferred Shares at
such adjusted Purchase Price.
rrr. In any case in which this Section 12 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 the Preferred Shares or other capital stock or securities of the
Company, if any, issuable upon such exercise over and above the Preferred
Shares or 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 securities upon the occurrence of the event requiring
such adjustment.
sss. Anything in this Section 12 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 12, as and
to the extent that it in its sole discretion shall determine to be advisable
in order that any combination or subdivision of the Preferred Shares,
issuance wholly for cash of any of the Preferred Shares at less than the
current market price, issuance wholly for cash of Preferred Shares or
securities which by their terms are convertible into or exchangeable for
Preferred Shares, dividends on Preferred Shares payable in Preferred Shares
or issuance of rights, options or warrants referred to in subsection (b) of
this Section 12, hereafter effected by the Company to holders of its
Preferred Shares shall not be taxable to such shareholders.
ttt. If at any time prior to the Distribution Date, the Company shall
declare or pay any dividend on the Common Shares payable in Common Shares or
effect a subdivision or combination of the Common Shares (by reclassification
or otherwise than by payment of dividends in Common Shares) into a greater or
lesser number of Common Shares, then in any such case the Purchase Price in
effect at the time of the record date for such dividend or of the effective
date of such subdivision or combination shall be adjusted by multiplying such
Purchase Price by a fraction, the numerator of which is the number of Common
Shares outstanding immediately before such event and the denominator of which
is the number of Common Shares outstanding immediately after such event, and
the number of Rights outstanding immediately after such event shall be
adjusted, either through cancellation of outstanding Rights or through
distribution of additional Rights (but without duplication of the Company's
obligations under Section 3(c)), so that the certificate evidencing each
Common Share outstanding immediately after such event shall also evidence the
associated Right to
18
purchase the same number of one one-thousandths of a Preferred Share as to
which a Right would have entitled the holder thereof to purchase immediately
prior to such event. The adjustment provided for in this Section 12(n) shall
be made successively whenever such a dividend is declared or paid or such a
subdivision or combination is effected. If an event occurs which would
require an adjustment under Section 12(a)(2) and this Section 12(n), the
adjustments provided for in this Section 12(n) shall be in addition and prior
to any adjustment required pursuant to Section 12(a)(2).
SECTION i. CERTIFICATE OF ADJUSTED PURCHASE PRICE OR NUMBER OF SHARES.
Whenever an adjustment is made as provided in Section 12 or 14 hereof, the
Company shall promptly prepare a certificate setting forth such adjustment,
and a brief statement of the facts accounting for such adjustment, promptly
file with the Rights Agent and with each transfer agent for the Common Shares
of the Company and the Preferred Shares a copy of such certificate and mail
a brief summary thereof to each holder of record of a Right Certificate in
accordance with Section 28 hereof.
SECTION ii. CONSOLIDATION, MERGER OR SALE OR TRANSFER OF ASSETS OR
EARNING POWER. If, directly or indirectly, at any time following the Shares
Acquisition Date, the Company shall consolidate with, or merge with and
into, any other Person, any Person shall merge with and into the Company and
the Company shall be the continuing or surviving corporation of such merger
and, in connection with any such merger, all or part of the Common Shares of
the Company shall be changed into or exchanged for stock or other securities
of any other Person (or the Company) or cash or any other property, or the
Company shall sell or otherwise transfer (or one or more of its Subsidiaries
shall sell or otherwise transfer), in one or a series of two or more
transactions, assets of the Company or its Subsidiaries which constitute more
than 50% of the assets or which produce more than 50% of the earning power of
the Company and its Subsidiaries (taken as a whole) to any Person or any
Affiliate or Associate of such Person other than the Company or one or more
of its Wholly-Owned Subsidiaries, then, and in each such case, the Company
agrees that, as a condition to engaging in any such transaction, it will make
or cause to be made proper provision so that each holder of a Right (except
as otherwise provided herein) shall thereafter have the right to receive,
upon the exercise thereof in accordance with the terms of this Agreement and
in lieu of Preferred Shares, such number of Common Shares of such other
Person (including the Company as successor thereto or as the surviving
corporation) or, if such other Person is a Subsidiary of another Person, of
the Person or Persons (other than individuals) which ultimately control such
first-mentioned Person, as shall be equal to the result obtained by (X)
multiplying the then current Purchase Price by the number of one
one-thousandths of a Preferred Share for which a Right is then exercisable
(without taking into account any adjustment previously made pursuant to
Section 12(a)(2)) and dividing that product by (Y) 50% of the current per
share market price of the Common Shares of such other Person (determined
pursuant to Section 12(d) hereof) on the date of consummation of such
consolidation, merger, sale or transfer; the issuer of such Common Shares
shall thereafter be liable for, and shall assume, by virtue of such
consolidation, merger, sale or transfer, all the obligations and duties of
the Company pursuant to this Agreement; the term "COMPANY," as used herein,
shall thereafter be deemed to refer to such issuer; and such issuer shall
take such steps (including without limitation the reservation of a sufficient
number of shares of its Common Shares in accordance with Section 10) in
connection with such consummation as may be necessary to assure that the
provisions hereof shall thereafter be applicable, as nearly as reasonably may
be, in relation to the Common Shares thereafter deliverable upon the exercise
of the Rights. The Company shall not enter into any transaction of the kind
referred to in this Section 14 if at the time of such
19
transaction there are outstanding any rights, warrants, instruments or
securities or any agreement or arrangements which, as a result of the
consummation of such transaction, would substantially diminish or otherwise
eliminate the benefits intended to be afforded by the Rights. The Company
shall not consummate any such consolidation, merger, sale or transfer unless
prior thereto the Company and such issuer shall have executed and delivered
to the Rights Agent an agreement supplemental to this Agreement complying
with the provisions of this Section 14. The provisions of this Section 14
shall similarly apply to successive mergers or consolidations or sales or
other transfers. For the purposes of this Section 14, 50% of the assets of
the Company and its Subsidiaries shall be determined by reference to the book
value of such assets as set forth in the most recent consolidated balance
sheet of the Company and its Subsidiaries (which need not be audited) and 50%
of the earning power of the Company and its Subsidiaries shall be determined
by reference to the mathematical average of the operating income resulting
from the operations of the Company and its Subsidiaries for the two most
recent full fiscal years as set forth in the consolidated and consolidating
financial statements of the Company and its Subsidiaries for such years;
PROVIDED, HOWEVER, that, if the Company has, during such period, engaged in
one or more transactions to which purchase accounting is applicable, such
determination shall be made by reference to the pro forma operating income of
the Company and its Subsidiaries giving effect to such transactions as if
they had occurred at the commencement of such two-year period.
SECTION iii. FRACTIONAL RIGHTS AND FRACTIONAL SHARES. The Company
shall not be required to issue or distribute Right Certificates which
evidence fractional Rights. If, on the Distribution Date or thereafter, as a
result of any adjustment effected pursuant to Section 12(i) or otherwise
hereunder, a Person would otherwise be entitled to receive a Right
Certificate evidencing a fractional Right, the Company shall, in lieu
thereof, pay or cause to be paid to such Person an amount in cash equal to
the same fraction of the current market value of a whole Right. For the
purpose of this Section 15(a), the current 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.
uuu. The Company shall not be required to issue fractions of Preferred
Shares (other than fractions which are integral multiples of one
one-thousandth of a Preferred Share) upon exercise of the Rights or to
distribute certificates which evidence fractional Preferred Shares (other
than fractions which are integral multiples of one one-thousandth of a
Preferred Share). Fractions of Preferred Shares in integral multiples of one
one-thousandth of a Preferred Share may, at the election of the Company, be
evidenced by depositary receipts, pursuant to an appropriate agreement
between the Company and a depositary selected by it, provided that such
agreement shall provide that the holders of such depositary receipts shall
have all the rights, privileges and preferences to which they are entitled as
beneficial owners of the Preferred Shares. If, on the Distribution Date or
thereafter, as a result of any adjustment effected hereunder in the number of
one one-thousandths of a Preferred Share as to which a Right has become
exercisable, a Person would otherwise be entitled to receive a fractional
Preferred Share that is not an integral multiple of one one-thousandth of a
Preferred Share, the Company shall, in lieu thereof, pay to such Person at
the time such Right is exercised as herein provided an amount in cash equal
to the same fraction (which is not an integral multiple of one one-thousandth
of a Preferred Share) of the current market value of one Preferred Share.
For purposes of this Section 15(b), the current market value of a Preferred
Share shall be the Closing Price of a Preferred Share for the Trading Day
immediately prior to the date of such exercise.
20
vvv. Should any adjustment contemplated by Section 12(a)(2) or any
mandatory redemption and exchange contemplated by Section 25 occur, the
Company shall not be required to issue fractions of Common Shares upon
exercise of the Rights or to distribute certificates which evidence
fractional Common Shares. If after any such adjustment or mandatory
redemption and exchange, a Person would otherwise be entitled to receive a
fractional Common Share of the Company upon exercise of any Right Certificate
or upon mandatory redemption and exchange as contemplated by Section 25, the
Company shall, in lieu thereof, pay to such Person at the time such Right is
exercised as herein provided or upon such mandatory redemption and exchange
an amount in cash equal to the same fraction of the current market value of
one Common Share. For purposes of this Section 15(c), the current market
value of a Common Share shall be the Closing Price of a Common Share for the
Trading Day immediately prior to the date of such exercise or the date of
such mandatory redemption and exchange.
www. The holder of a Right by the acceptance thereof expressly waives
his right to receive any fractional Rights or any fractional shares upon
exercise or mandatory redemption and exchange of a Right (except as provided
above).
SECTION i. RIGHTS OF ACTION. All rights of action in respect of the
obligations and duties owed to the holders of the Rights under this Agreement
are vested in the registered holders of the Rights; and, without the consent
of the Rights Agent or of the holder of any other Rights, any registered
holder of any Rights may, in his own behalf and for his own benefit, enforce,
and may institute and maintain any suit, action or proceeding, judicial or
otherwise, against the Company to enforce, or otherwise to act in respect of,
such holder's right to exercise such Rights in the manner provided in the
Right Certificate evidencing such Rights and in this Agreement. Without
limiting the foregoing or any remedies available to the holders of Rights, it
is specifically acknowledged that the holders of Rights would not have an
adequate remedy at law for any breach of this Agreement and will be entitled
to specific performance of the obligations under, and injunctive relief
against actual or threatened violations of, the obligations of any Person
subject to this Agreement.
xxx. No right or remedy herein conferred upon or reserved to the
registered holder of Rights is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy, whether hereunder or otherwise, shall not
prevent the concurrent assertion or employment of any other appropriate right
or remedy.
yyy. No delay or omission of any registered holder of Rights to exercise
any right or remedy accruing hereunder shall impair any such right or remedy
or constitute a waiver of any default hereunder or an acquiescence therein.
Every right and remedy given hereunder or by law to such holders may be
exercised from time to time, and as often as may be deemed expedient, by such
holders.
SECTION i. AGREEMENT OF RIGHT 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:
zzz. prior to the Distribution Date, the Rights will be transferable
only in connection with the transfer of the Common Shares of the Company;
21
aaaa. after the Distribution Date, the Right Certificates are
transferable only on the registry books of the Rights Agent if surrendered at
the Corporate Trust Office of the Rights Agent duly endorsed or accompanied
by a proper instrument of transfer;
bbbb. the Company and the Rights Agent may deem and treat the person in
whose name the Right Certificate (or, prior to the Distribution Date, the
associated Common Shares certificate) is registered as the absolute owner
thereof and of the Rights evidenced thereby (notwithstanding any notations of
ownership or writing on the Right Certificates or the associated Common
Shares certificate made by anyone other than the Company or the Rights Agent)
for all purposes, and neither the Company nor the Rights Agent shall be
affected by any notice to the contrary; and
cccc. 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 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 soon as possible.
SECTION i. RIGHT CERTIFICATE HOLDER NOT DEEMED A STOCKHOLDER. No
holder, as such, of any Right (whether or not then evidenced by a Right
Certificate) shall be entitled to vote, receive dividends or be deemed for
any purpose the holder of Preferred Shares, Common Shares of the Company or
any other securities of the Company which may at any time be issuable on the
exercise (or mandatory redemption and exchange) of the Rights represented
thereby, nor shall anything contained herein or in any Right Certificate be
construed to confer upon any such holder, as such, any of the rights of a
stockholder of the Company, including without limitation any right to vote
for the election of directors or upon any matter submitted to stockholders at
any meeting thereof, to give or withhold consent to any corporate action, to
receive notice of meetings or other actions affecting stockholders (except as
provided in Section 26) or to receive dividends or subscription rights or
otherwise.
SECTION ii. CONCERNING THE RIGHTS AGENT. The Company agrees to pay to
the Rights Agent reasonable compensation for all services rendered by it
hereunder and, from time to time, on demand of the Rights Agent, its
reasonable expenses and counsel fees and other disbursements incurred in the
administration and execution of this Agreement and the exercise and
performance of its duties hereunder. The Company also agrees to indemnify
the Rights Agent for, and to hold it harmless against, any loss, liability or
expense, incurred without negligence, bad faith or willful misconduct on the
part of the Rights Agent, for anything done or omitted 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
in the premises.
dddd. 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
Right Certificate or certificate for Preferred Shares, Common Shares or other
securities of the Company, Company Order, instrument of assignment or
transfer, power of attorney, endorsement, affidavit, letter, notice,
direction, consent,
22
certificate, statement, or other paper or document believed by it to be
genuine and to be executed and, where necessary, verified or acknowledged, by
the proper person or persons, or otherwise upon the advice of its counsel as
set forth in Section 20 hereof.
SECTION i. 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 Right
Certificates, by their acceptance thereof, shall be bound:
eeee. 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.
ffff. Whenever in the performance of its duties under this Agreement the
Rights Agent shall deem it necessary or desirable that any fact or matter be
proved or established by the Company prior to taking or suffering any action
hereunder, such fact or matter (unless other evidence in respect thereof be
herein specifically prescribed) may be deemed to be conclusively proved and
established by a certificate signed by any one of 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 for any action taken or suffered in good faith by it under the
provisions of this Agreement in reliance upon such certificate.
gggg. The Rights Agent shall be liable hereunder to the Company or any
other Person only for its own negligence, bad faith or willful misconduct.
Anything in this Agreement to the contrary notwithstanding, in no event shall
the Rights Agent be liable for special, indirect or consequential loss or
damage of any kind whatsoever (including, but not limited to, lost profits),
even if the Rights Agent has been advised of the likelihood of such loss or
damage and regardless of the form of action.
hhhh. 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
Right Certificates (except its authentication thereof) or be required to
verify the same, but all such statements and recitals are and shall be deemed
to have been made by the Company only.
iiii. The Rights Agent shall not have any responsibility with respect to
the validity of this Agreement or the execution and delivery hereof (except
the due execution hereof by the Rights Agent) or with respect to the validity
or execution of any Right Certificate (except its authentication thereof);
nor shall it be responsible for any breach by the Company of any covenant or
condition contained in this Agreement or in any Right Certificate; nor shall
it be responsible for any change in the exercisability of the Rights
(including the Rights becoming void pursuant to Section 12(a)(2) hereof) or
any adjustment in the terms of the Rights (including the manner, method or
amount thereof) provided for in Sections 3, 12, 14, 24 and 25, or the
ascertainment of the existence of facts that would require any such change or
adjustment (except with respect to the exercise of Rights evidenced by Right
Certificates after actual notice that such change or adjustment is required);
nor shall it by any act hereunder be deemed to make any representation or
warranty as to the authorization or reservation of any Preferred Shares or
Common Shares to be issued pursuant to this Agreement or any Right
23
Certificate or as to whether any Preferred Shares or Common Shares will, when
issued, be duly authorized, validly issued, fully paid and nonassessable.
jjjj. The Company agrees that it will perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged and delivered all
such further and other acts, instruments and assurances as may reasonably be
required by the Rights Agent for the carrying out or performing by the Rights
Agent of the provisions of this Agreement.
kkkk. The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from any
one of 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 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.
llll. The Rights Agent and any stockholder, 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.
mmmm. 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 of the Company resulting from any
such act, default, neglect or misconduct provided reasonable care was
exercised in the selection and continued employment thereof.
SECTION i. MERGER OR CONSOLIDATION OR CHANGE OF NAME OF RIGHTS AGENT.
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 business 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 paper or any further act on the part of any of the parties
hereto, provided that such corporation would be eligible for appointment as a
successor Rights Agent under the provisions of Section 22. If at the time
such successor Rights Agent shall succeed to the agency created by this
Agreement any of the Right Certificates shall have been authenticated but not
delivered, any such successor Rights Agent may adopt the authentication of
the predecessor Rights Agent and deliver such Right Certificates so
authenticated, and, if at that time any of the Right Certificates shall not
have been authenticated, any successor Rights Agent may authenticate such
Right Certificates either in the name of the predecessor Rights Agent or in
the name of the successor Rights Agent; and in all such cases such Right
Certificates shall have the full force provided in the Right Certificates and
in this Agreement.
If at any time the name of the Rights Agent shall be changed and at such
time any of the Right Certificates shall have been authenticated but not
delivered, the Rights Agent may adopt the authentication under its prior name
and deliver Right Certificates so authenticated; and, in case at that time
any of the Right Certificates shall not have been authenticated, the
24
Rights Agent may authenticate such Right Certificates either in its prior
name or in its changed name; and in all such cases such Right Certificates
shall have the full force provided in the Right Certificates and in this
Agreement.
SECTION ii. CHANGE OF RIGHTS AGENT. The Rights Agent or any successor
Rights Agent may resign and be discharged from its duties under this
Agreement upon 30 days' notice in writing mailed to the Company and to each
transfer agent for the Common Shares of the Company and the Preferred Shares
by registered or certified mail, and to the holders of the Right Certificates
by first-class mail. The Company may remove the Rights Agent or any
successor Rights Agent upon 30 days' notice in writing, mailed to the Rights
Agent or successor Rights Agent, as the case may be, and to each transfer
agent for the Common Shares of the Company and the Preferred Shares by
registered or certified mail, and to the holders of the Right 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 30 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 registered holder of a
Right Certificate (or, prior to the Distribution Date, of Common Shares),
then any registered holder of a Right Certificate (or, prior to the
Distribution Date, of Common Shares) may apply to any court of competent
jurisdiction for the appointment of a new Rights Agent. Any successor Rights
Agent, whether appointed by the Company or by such a court, shall be a
corporation organized and doing business under the laws of the United States
or of 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 and which has at the time of its appointment as
Rights Agent a combined capital and surplus of at least $50 million. 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
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 for the
Common Shares of the Company and the Preferred Shares, and mail a notice
thereof in writing to the registered holders of the Right Certificates.
Failure to give any notice provided for in this Section 22, however, or any
defect therein, shall not affect the legality or validity of the resignation
or removal of the Rights Agent or the appointment of the successor Rights
Agent, as the case may be.
SECTION iii. ISSUANCE OF NEW RIGHT CERTIFICATES. Notwithstanding any of
the provisions of this Agreement or of the Rights to the contrary, the
Company may, at its option, issue new Rights Certificates evidencing Rights
in such form as may be approved by its Board of Directors to reflect any
adjustment or change in the Purchase Price per share and the number or kind
or class of shares or other securities purchasable under the Right
Certificates made in accordance with the provisions of this Agreement.
SECTION iv. REDEMPTION. The Rights may be redeemed by action of the
Board of Directors of the Company pursuant to paragraph (b) of this Section
24, or may be redeemed and exchanged by action of the Board of Directors of
the Company pursuant to Section 25 herein, but shall not be redeemed in any
other manner.
25
nnnn. The Board of Directors of the Company may, at its option, at any
time prior to the time any Person becomes an Acquiring Person redeem all but
not less than all the then outstanding Rights at a redemption price of one
tenth of a cent ($0.001) per Right then outstanding, appropriately adjusted
to reflect any adjustment in the number of Rights outstanding pursuant to
Section 12(i) herein (such redemption price being hereinafter referred to as
the "REDEMPTION PRICE"). Any such redemption of the Rights by the Board of
Directors may be made effective at such time, on such basis and with such
conditions as the Board of Directors in its sole discretion may establish.
oooo. The right of the registered holders of Right Certificates to
exercise the Rights evidenced thereby or, if the Distribution Date has not
theretofore occurred, the inchoate right of the registered holders of Rights
to exercise the same shall, without notice to such holders or to the Rights
Agent and without further action, terminate and be of no further force or
effect effective as of the time of adoption by the Board of Directors of the
Company of a resolution authorizing and directing the redemption of the
Rights pursuant to paragraph (b) of this Section 24 (or, alternatively, if
the Board of Directors qualified such action as to time, basis or conditions,
then at such time, on such basis and with such conditions as the Board of
Directors may have established pursuant to such paragraph (b)); thereafter,
the only right of the holders of Rights shall be to receive the Redemption
Price. The Company shall promptly give public notice of any redemption
resolution pursuant to paragraph (b) of this Section 24; PROVIDED, HOWEVER,
that the failure to give, or any defect in, any such notice shall not affect
the validity of such redemption. Within ten days after the adoption of any
redemption resolution pursuant to paragraph (b) of this Section 24, the
Company shall give notice of such redemption to the holders of the then
outstanding Rights by mailing such notice to all such holders at their last
addresses as they appear upon the registry books of the Rights Agent or,
prior to the Distribution Date, on the registry books of the transfer agents
for the Common Shares. Any notice which is mailed in the manner herein
provided shall be deemed given, whether or not the holder receives the
notice. Each such notice of redemption shall state the method by which the
payment of the Redemption Price will be made.
pppp. Neither the Company nor any of its Affiliates or Associates may
acquire (other than, in the case of such Affiliates and Associates, in their
capacity as holders of Common Shares of the Company), redeem or purchase for
value any Rights at any time in any manner other than as specifically set
forth in this Section 24 or in Section 25 herein, and other than in
connection with the purchase of Common Shares prior to the Distribution Date.
SECTION i. MANDATORY REDEMPTION AND EXCHANGE. The Board of Directors
of the Company may, at its option, at any time after any Person becomes an
Acquiring Person, issue Common Shares of the Company in mandatory redemption
of, and in exchange for, all or part of the then outstanding and exercisable
Rights (which shall not include Rights that have become null and void
pursuant to the provisions of Section 8(e) hereof) at an exchange ratio of
one Common Share for each two Common Shares for which each Right is then
exercisable pursuant to the provisions of Section 12(a)(2) hereof.
Notwithstanding the foregoing, the Board of Directors shall not be empowered
to effect such redemption and exchange at any time after any Person (other
than the Company, any Subsidiary of the Company, any employee benefit plan of
the Company or of any such Subsidiary, or any trustee of or fiduciary with
respect to any such plan when acting in such capacity), together with all
Affiliates and Associates of such Person, becomes the Beneficial Owner of 50%
or more of the Voting Shares then outstanding.
26
qqqq. Immediately upon the action of the Board of Directors of the
Company ordering the mandatory redemption and exchange of any Rights pursuant
to subsection (a) of this Section 25 and without any further action and
without any notice, the right to exercise such Rights shall terminate and the
only right thereafter of a holder of such Rights shall be to receive such
number of Common Shares as is provided in paragraph (a) of this Section 25.
The Company shall promptly give public notice of any such redemption and
exchange; PROVIDED, HOWEVER, that the failure to give, or any defect in, such
notice shall not affect the validity of such redemption and exchange. The
Company promptly shall mail a notice of any such redemption and exchange to
all the holders of such Rights at their last addresses as they appear upon
the registry books of the Rights Agent. Any notice which is mailed in the
manner herein provided shall be deemed given, whether or not the holder
receives the notice. Each such notice of mandatory redemption and exchange
shall state the method by which the redemption and exchange of the Common
Shares for Rights will be effected and, in the event of any partial
redemption and exchange, the number of Rights which will be redeemed and
exchanged. Any partial redemption and exchange shall be effected pro rata
based on the number of Rights (other than Rights which have become null and
void pursuant to the provisions of Section 8(e) hereof) held by each holder
of Rights.
rrrr. In any mandatory redemption and exchange pursuant to this Section
25, the Company, at its option, may substitute Preferred Shares (or
equivalent preferred shares, as such term is defined in Section 12(b) hereof)
for Common Shares, at the initial rate of one one-thousandth of a Preferred
Share (or equivalent preferred share) for each Common Share, as appropriately
adjusted.
SECTION i. NOTICE OF CERTAIN EVENTS. If the Company shall, on or after
the Distribution Date, propose to pay any dividend or other distribution
payable in stock of any class of the Company or any Subsidiary of the Company
to the holders of its Preferred Shares, to distribute to the holders of its
Preferred Shares rights or warrants to subscribe for or to purchase any
additional Preferred Shares or shares of stock of any class or any other
securities, rights or options, to make any other distribution to the holders
of its Preferred Shares (other than a regular quarterly cash dividend), to
effect any reclassification of its Preferred Shares (other than a
reclassification involving only the subdivision of outstanding Preferred
Shares), to effect any consolidation or merger into or with, 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
(determined as provided in Section 14 herein) to, any other Person (other
than the Company or a Wholly-Owned Subsidiary or Wholly-Owned Subsidiaries),
to effect the liquidation, dissolution or winding up of the Company or if
the Rights have theretofore become exercisable with respect to Common Shares
pursuant to Section 12(a)(2) herein, to declare or pay any dividend or other
distribution on the Common Shares payable in Common Shares or in stock of any
other class of the Company or any Subsidiary of the Company or to effect a
subdivision or combination of the Common Shares (by reclassification or
otherwise than by payment of dividends in Common Shares) then, in each such
case, the Company shall give to each holder of a Right Certificate, in
accordance with Section 28 hereof, notice of such proposed action, which
shall specify the date of authorization by the Board of Directors of the
Company of, and record date for, such stock dividend or such distribution of
rights or warrants or the date on which such reclassification, consolidation,
merger, sale, transfer, liquidation, dissolution, winding up, subdivision or
combination is to take place and the date of participation therein by the
holders of the Common Shares of the Company or the Preferred Shares, or both,
if any such date is to be fixed. Such notice shall be so given in the case
of any action
27
covered by clause (a), (b) or (g) above at least 20 days prior to the record
date for determining holders of the Preferred Shares or of the Common Shares
of the Company, as the case may be, for purposes of such action, and in the
case of any such other action, at least 20 days prior to the date of the
taking of such proposed action or the date of participation therein by the
holders of the Preferred Shares or Common Shares of the Company, as the case
may be, whichever shall be the earlier.
If any of the events set forth in Section 12(a)(2) of this Agreement
shall occur, then, in any such case, the Company shall as soon as practicable
thereafter give to each holder of a Right Certificate, in accordance with
Section 28 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 12(a)(2) hereof.
SECTION ii. SECURITIES LAWS REGISTRATIONS. To the extent legally
required, the Company agrees that it will prepare and file, no later than the
Distribution Date, and will use its best efforts to cause to be declared
effective, a registration statement under the Securities Act registering the
offering, sale and delivery of the Preferred Shares issuable upon exercise of
the Rights, and the Company will, thereafter, use its best efforts to
maintain such registration statement (or another) continuously in effect so
long as any Rights remain outstanding and exercisable with respect to
Preferred Shares. Should the Rights become exercisable with respect to
securities of the Company or one of its Subsidiaries other than Preferred
Shares, the Company agrees that it will, to the extent legally required,
promptly thereafter prepare and file, or cause to be prepared and filed, and
will use its best efforts to cause to be declared effective, a registration
statement under such Act registering the offering, sale and delivery of such
other securities and the Company will, thereafter, use its best efforts to
maintain such registration statement (or another) continuously in effect so
long as any outstanding Rights are exercisable with respect to such
securities. The Company further agrees to use its best efforts, from and
after the Distribution Date, to qualify or register for sale the Preferred
Shares or other securities of the Company or one of its Subsidiaries issuable
upon exercise of the Rights under the securities or "blue sky" laws (to the
extent legally required thereunder) of all jurisdictions in which registered
holders of Right Certificates reside determined by reference to the Rights
Register.
SECTION iii. NOTICES. Notices or demands authorized by this Agreement
to be given or made by the Rights Agent or by the holder of any Right
Certificate to or on the Company shall be sufficiently given or made if sent
by first-class mail, postage prepaid, addressed (until another address is
filed in writing with the Rights Agent) as follows:
Concentra Managed Care, Inc.
000 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Chief Executive Officer
and to: Concentra Managed Care, Inc.
0000 XXX Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: General Counsel
Subject to the provisions of Section 22 hereof, any notice or demand
authorized by this Agreement to be given or made by the Company or by the
holder of any Right Certificate to
28
or on the Rights Agent shall be sufficiently given or made if sent by
first-class mail, postage prepaid, addressed (until another address is filed
in writing with the Company) as follows:
ChaseMellon Shareholder Services, L.L.C.
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Notices or demands authorized by this Agreement to be given or made by the
Company or the Rights Agent to the holder of any Right Certificate 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 Rights
Register of the Company or, prior to the Distribution Date, on the stock
transfer records for the Common Shares of the Company.
SECTION iv. SUPPLEMENTS AND AMENDMENTS. The Company may from time to
time supplement or amend this Agreement (which supplement or amendment shall
be evidenced by a writing signed by the Company and the Rights Agent) without
the approval of any holders of Right Certificates in order to cure any
ambiguity, to correct or supplement any provision contained herein which may
be defective or inconsistent with any other provisions herein, to make any
other provisions in regard to matters or questions arising hereunder, or to
add, delete, modify or otherwise amend any provision, which the Company may
deem necessary or desirable, including without limitation extending the Final
Expiration Date and, provided that at the time of such amendment or
supplement the Distribution Date has not occurred, the period during which
the Rights may be redeemed; PROVIDED, HOWEVER, that, from and after such time
as any Person becomes an Acquiring Person, any such amendment or supplement
shall not materially and adversely affect the interests of the holders of
Right Certificates. Without limiting the foregoing, the Board of Directors
of the Company may by resolution adopted at any time prior to such time as
any Person becomes an Acquiring Person amend this Agreement to lower the
threshold set forth in the definitions of Acquiring Person and Distribution
Date herein from 15% to a percentage not less than the greater of any
percentage greater than the largest percentage of the outstanding Voting
Shares then known to the Company to be beneficially owned by any Person
(other than the Company, any Subsidiary of the Company, any employee benefit
plan of the Company or of any Subsidiary of the Company, or any trustee of or
fiduciary with respect to any such plan when acting in such capacity), and
10% if the Board of Directors shall determine that a Person whose interests
are adverse to the Company and its stockholders may seek to acquire control
of the Company.
SECTION v. 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 vi. 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 any legal or equitable right, remedy
or claim under this Agreement; but this Agreement shall be for the sole and
exclusive benefit of the Company, the Rights Agent and the registered holders
of the Rights.
SECTION vii. 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
29
Agreement shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
SECTION viii. GOVERNING LAW. This Agreement and each Right Certificate
issued hereunder shall be deemed to be a contract made under the laws of the
State of Delaware and for all purposes shall be governed by and construed in
accordance with the laws of such State applicable to contracts to be made and
performed entirely within such State.
SECTION ix. COUNTERPARTS. This Agreement may be executed in any number
of counterparts and each of such counterparts shall for all purposes be
deemed to be an original, and all such counterparts shall together constitute
but one and the same instrument.
SECTION x. DESCRIPTIVE HEADINGS. Descriptive headings of the several
Sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions
hereof.
30
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and attested, all as of the day and year first
above written.
CONCENTRA MANAGED CARE, INC.
Attest:
By: _______________________ By _____________________________________
Xxxxxxx X. Xxxx XX Xxxxxx X. Xxxxxx
Secretary President and Chief Executive Officer
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
As Rights Agent
Attest:
By: _______________________ By: ____________________________________
Name: Name:
Title: Authorized Officer Title: Authorized Officer
31
EXHIBIT A
FORM OF
CERTIFICATE OF DESIGNATION
OF
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
OF
CONCENTRA MANAGED CARE, INC.
Pursuant to Section 151 of the General
Corporation Law of the State of Delaware
Concentra Managed Care, Inc., a Delaware corporation (the "CORPORATION"),
through the undersigned duly authorized officer, in accordance with the
provisions of Sections 103 and 151 of the General Corporation Law of the
State of Delaware, DOES HEREBY CERTIFY:
That the Board of Directors of the Corporation on ________________, 1997,
pursuant to the authority conferred upon the Board of Directors by the
Amended and Restated Certificate of Incorporation of the Corporation (the
"CERTIFICATE OF INCORPORATION") and in accordance with the provisions of
Section 151 of the General Corporation Law of the State of Delaware, adopted
the following resolution creating a series of _________ shares of Preferred
Stock, par value $.01 per share:
RESOLVED, that, pursuant to the authority expressly granted to and vested
in the Board of Directors of the Corporation in accordance with the
provisions of Article IV, Section B of its Certificate of Incorporation, a
series of the Preferred Stock of the Corporation, par value $.01 per share,
be, and it hereby is, created and that the voting powers, designations,
preferences and relative, participating, optional and other special rights of
the shares of such series, and the qualifications, limitations or
restrictions thereof are as follows:
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK:
Section 1. DESIGNATION AND AMOUNT. The shares of such series shall be
designated as "Series A Junior Participating Preferred Stock" (the "SERIES A
PREFERRED STOCK") and the number of shares constituting the Series A Preferred
Stock shall be ___________. 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 the
number of shares then outstanding plus the number of shares reserved for
issuance upon the exercise of outstanding options, rights or warrants or upon
the conversion of any outstanding securities issued by the Corporation
convertible into Series A Preferred Stock.
Section 2. DIVIDENDS AND DISTRIBUTIONS.
(a) Subject to the rights of the holders of any shares of any series of
Preferred Stock (or any similar stock) ranking prior and superior to the
Series A Preferred Stock with respect to dividends, the holders of shares of
Series A Preferred Stock, in preference to the holders of Common Stock, par
value $0.01 per share (the "COMMON STOCK"), of the Corporation, and of any
other junior stock, shall be entitled to receive, when, as and if declared by
the Board of Directors out of funds legally available for the purpose,
quarterly dividends payable on the first business day of February, May,
August and November in each year (each such date being referred to herein as
a "QUARTERLY DIVIDEND PAYMENT DATE") as provided in paragraphs (b) and (c) of
this Section 2 in an amount per share (rounded to the nearest cent) equal to
the greater of (1) $1.00 in cash or (2) subject to the provision for
adjustment
A-1
hereinafter set forth, 1,000 times the aggregate per share amount (payable in
cash) of all cash dividends, and 1,000 times the aggregate per share amount
(payable in kind) 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 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 any share or fraction of a share of Series
A Preferred Stock. If the Corporation shall at any time declare or pay any
dividend on the Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding shares of
Common Stock (by reclassification or otherwise) into a greater or lesser
number of shares of Common Stock, then in each such case the amount to which
holders of shares of Series A Preferred Stock were entitled immediately prior
to such event under clause (2) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction, the numerator of which is the number
of shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that was
outstanding immediately prior to such event.
(b) The Corporation shall declare a dividend or distribution on the
Series A Preferred Stock as provided in paragraph (a) of this Section 2
immediately after it declares a dividend or distribution on the Common Stock
(other than a dividend payable in shares of Common Stock); PROVIDED that, if
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 $1.00 per share
payable in cash on the Series A Preferred Stock shall nevertheless accrue and
be cumulative on the outstanding shares of Series A Preferred Stock as
provided in paragraph (c) of this Section 2.
(c) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Preferred Stock from the Quarterly Dividend Payment Date
next preceding the date of issue of such shares, unless the date of issue of
such shares is prior to the record date for the first Quarterly Dividend
Payment Date, in which case dividends on such shares shall begin to accrue
from the date of issue of such shares, or unless the date of issue is a
Quarterly Dividend Payment Date or is a date after the record date for the
determination of holders of shares 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 the shares of Series A
Preferred Stock in an amount less than the total amount of such dividends at
the time accrued and payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding. The
Board of Directors may fix a record date for the determination of holders of
shares of Series A Preferred Stock entitled to receive payment of a dividend
or distribution declared thereon, which record date shall be not more than 60
days prior to the date fixed for the payment thereof.
Section 3. VOTING RIGHTS. The holders of shares of Series A
Preferred Stock shall have the following voting rights:
(a) Subject to the provisions for adjustment hereinafter set forth, each
share of Series A Preferred Stock shall entitle the holder thereof to 1,000
votes on all matters submitted to a vote of the stockholders of the
Corporation. If the Corporation shall at any time declare or pay any dividend
on Common Stock payable in shares of Common Stock, or effect a subdivision
or combination of the outstanding shares of Common Stock (by reclassification
A-2
or otherwise) into a greater or lesser number of shares of Common Stock, then
in each such case the number of votes per share to which holders of shares 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
is the number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common Stock
that was outstanding immediately prior to such event.
(b) Except as otherwise provided herein, in any other Certificate of
Designation creating a series of Preferred Stock or any similar stock, or by
law, the holders of shares of Series A Preferred Stock and the holders of
shares of Common Stock and any other capital stock of the Corporation having
general voting rights shall vote together as one class on all matters
submitted to a vote of stockholders of the Corporation.
(c) Except as set forth herein or as otherwise provided by law, holders
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 Common Stock as set forth herein) for taking any corporate
action.
Section 4. CERTAIN RESTRICTIONS.
(a) Whenever quarterly dividends or other dividends or distributions
payable on the 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 shares of Series A Preferred Stock
outstanding shall have been paid in full, or declared and a sum sufficient
for the payment therefor be set apart for payment and be in the process of
payment, the Corporation shall not:
(1) declare or pay dividends, or make any other distributions, on
any shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred Stock;
(2) declare or pay dividends, or make any other distributions, on
any shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Preferred Stock,
except dividends paid ratably on the Series A Preferred Stock and all such
parity stock on which dividends are payable or in arrears in proportion
to the total amounts to which the holders of all such shares are then
entitled;
(3) redeem or purchase or otherwise acquire for consideration shares
of any stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred Stock, PROVIDED that
the Corporation may at any time redeem, purchase or otherwise acquire
shares of any such junior stock in exchange for shares of any stock of the
Corporation ranking junior (as to both dividends and upon dissolution,
liquidation or winding up) to the Series A Preferred Stock; or
(4) redeem or purchase or otherwise acquire for consideration any
shares of Series A Preferred Stock or any shares of stock ranking on a
parity (either as to dividends or upon liquidation, dissolution or winding
up) with the 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 shares upon such terms as the Board of
Directors, after consideration of the respective annual dividend rates and
A-3
other relative rights and preferences of the respective series and classes,
shall determine in good faith will result in fair and equitable treatment
among the holders of the respective series or classes.
(b) The Corporation shall not permit any subsidiary of the Corporation
to purchase or otherwise acquire for consideration any shares of stock 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.
Section 5. REACQUIRED SHARES. Any shares of Series A 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 shares shall upon their cancellation become authorized but unissued
shares of Preferred Stock and may be reissued as part of a new series of
Preferred Stock subject to the conditions and restrictions on issuance set
forth herein, in the Certificate of Incorporation, or in any other
Certificate of Designation creating a series of Preferred Stock or any
similar stock or as otherwise required by law.
Section 6. LIQUIDATION, DISSOLUTION OR WINDING UP. Upon any
liquidation, dissolution or winding up of the Corporation, no distribution
shall be made (a) to the holders of shares of stock ranking junior (either as
to dividends or as to amounts payable upon liquidation, dissolution or
winding up) to the Series A Preferred Stock unless, prior thereto, the
holders of Series A Preferred Stock shall have received an amount per share
(rounded to the nearest cent) equal to the greater of (1) $1,000 per share,
or (2) an amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 1,000 times the aggregate amount to be
distributed per share to holders of Common Stock, plus, in either case, an
amount equal to accrued and unpaid dividends and distributions thereon,
whether or not declared, to the date of such payment, or (b) to the holders
of stock ranking on a parity (either as to dividends or as to amounts payable
upon liquidation, dissolution or winding up) with the Series A Preferred
Stock, except distributions made ratably on the Series A Preferred Stock and
all such parity stock in proportion to the total amounts to which the holders
of all such Shares are entitled upon such liquidation, dissolution or winding
up. If the Corporation shall at any time declare or pay any dividend on
Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise) into a greater or lesser number of shares of
Common Stock, then in each such case the aggregate amount to which holders of
shares of Series A Preferred Stock were entitled immediately prior to such
event under the proviso in clause (a)(2) of the preceding sentence shall be
adjusted by multiplying such amount by a fraction the numerator of which is
the number of shares of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of Common Stock that was
outstanding immediately prior to such event.
Section 7. CONSOLIDATION, MERGER, ETC. If the Corporation shall
enter into any consolidation, merger, combination or other transaction in
which the shares of Common Stock are exchanged for or changed into other
stock or securities, cash or any other property, or any combination thereof,
then in any such case each share of Series A Preferred Stock shall at the
same time be similarly exchanged or changed into an amount per share, subject
to the provision for adjustment hereinafter set forth, equal to 1,000 times
the aggregate amount of stock, securities, cash or any other property
(payable in kind), or any combination thereof, as the case may be, into which
or for which each share of Common Stock is changed or exchanged. If the
Corporation shall at any time declare or pay any dividend on the Common Stock
payable in shares of Common Stock, or effect a subdivision or combination or
A-4
consolidation of the outstanding shares of Common Stock (by reclassification
or otherwise) into a greater or lesser number of shares of Common Stock, then
in each such case the amount set forth in the preceding sentence with respect
to the exchange or change of shares of Series A Preferred Stock shall be
adjusted by multiplying such amount by a fraction, the numerator of which is
the number of shares of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of Common Stock that was
outstanding immediately prior to such event.
Section 8. REDEMPTION. The shares of Series A Preferred Stock shall
not be redeemable. So long as any shares of Series A Preferred Stock remain
outstanding, the Corporation shall not purchase or otherwise acquire for
consideration any shares of stock ranking junior (either as to dividends or
upon liquidation, dissolution or winding up) to the Series A Preferred Stock
unless the Corporation shall substantially concurrently also purchase or
acquire for consideration a proportionate number of shares of Series A
Preferred Stock.
Section 9. RANK. The Series A Preferred Stock shall rank, with
respect to payment of dividends and the distribution of assets, junior to all
series of any other class of the Corporation's Preferred Stock.
Section 10. AMENDMENT. The Certificate of Incorporation of the
Corporation shall not be amended in any manner which would materially alter
or change the powers, preferences, privileges or special rights of the Series
A Preferred Stock so as to affect them adversely without the affirmative vote
of the holders of at least two-thirds of the outstanding shares of Series A
Preferred Stock, voting together as a single class.
A-5
IN WITNESS WHEREOF, this Certificate of Designation is executed on behalf
of the Corporation by its President, and attested by its Secretary, this ____
day of ____________, 1997.
CONCENTRA MANAGED CARE, INC.
By: _________________________
Xxxxxx X. Xxxxxx
President and Chief Executive Officer
ATTEST:
By: _______________________
Xxxxxxx X. Xxxx XX
Secretary
A-6
EXHIBIT B
FORM OF RIGHT CERTIFICATE
Certificate No. R- _____ Rights
NOT EXERCISABLE AFTER ___________________________ OR EARLIER
IF REDEMPTION OR EXCHANGE OCCURS. THE RIGHTS ARE SUBJECT TO
REDEMPTION AT $.001 PER RIGHT AND TO EXCHANGE ON THE TERMS
SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN
CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY ACQUIRING
PERSONS (AS DEFINED IN SECTION 1 OF THE RIGHTS AGREEMENT) OR
ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND
VOID.
RIGHT CERTIFICATE
CONCENTRA MANAGED CARE, INC.
This certifies that _____________________________, or registered assigns,
is the registered owner of the number of Rights set forth above, each of which
entitles the owner thereof, subject to the terms, provisions and conditions of
the Rights Agreement, dated as of ________________, 1997 (the "RIGHTS
AGREEMENT"), between CONCENTRA MANAGED CARE, INC., a Delaware corporation (the
"COMPANY"), and ______________________ (the "RIGHTS AGENT"), to purchase from
the Company at any time after the Distribution Date (as such term is defined in
the Rights Agreement) and prior to 5:00 p.m., Boston, Massachusetts time, on
________________, 2007, at the Corporate Trust Office of the Rights Agent (or at
the office of its successor as Rights Agent), one one-thousandth (1/1000) of a
fully paid non-assessable share of Series A Junior Participating Preferred
Stock, par value $.01 per share (the "PREFERRED SHARES"), of the Company, at a
purchase price of $________ per one one-thousandth (1/1000) of a Preferred Share
(the "PURCHASE PRICE"), upon presentation and surrender of this Right
Certificate with the Form of Election to Purchase duly executed. The number of
Rights evidenced by this Right Certificate (and the number of one
one-thousandths of a Preferred Share which may be purchased upon exercise
hereof) set forth above, and the Purchase Price set forth above, are the number
and Purchase Price as of _________________, 1997, based on the Preferred Shares
as constituted at such date. As provided in the Rights Agreement, the Purchase
Price and the number of one one-thousandths of a Preferred Share which may be
purchased upon the exercise of the Rights evidenced by this Right Certificate
are subject to modification and adjustment upon that happening of certain
events.
This Right Certificate is subject to all of the terms, provisions and
conditions of the Rights Agreement, which terms, provisions and conditions are
hereby incorporated herein by reference and made a part hereof and to which
Rights Agreement reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities hereunder of the
Rights Agent, the Company and the holders of the Right Certificates. Copies of
the Rights Agreement are on file at the principal executive offices of the
Company and the Corporate Trust Office of the Rights Agent.
B-1
This Right Certificate, with or without other Right Certificates, upon
surrender at the Corporate Trust Office of the Rights Agent, may be exchanged
for another Right Certificate or Right Certificates of like tenor and date
evidencing Rights entitling the holder to purchase a like aggregate number of
Preferred Shares as the Rights evidenced by the Right Certificate or Right
Certificates surrendered shall have entitled such holder to purchase. If this
Right Certificate shall be exercised in part, the holder shall be entitled to
receive upon surrender hereof another Right Certificate or Right Certificates
for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights evidenced
by this Certificate (i) may be redeemed by the Company at a redemption price
of $.001 per Right or (ii) may be exchanged by the Company in whole or in
part for Preferred Shares or shares of the Company's common stock, par value
$0.01 per share.
No fractional Preferred Shares 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 Preferred Share, which may, at the
election of the Company, be evidenced by depositary receipts), but in lieu
thereof a cash payment will be made, as provided in the Rights Agreement.
No holder of this Right Certificate shall be entitled to vote or receive
dividends or be deemed for any purpose the holder of the Preferred Shares or
of any other securities of the Company 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 stockholder of the Company or any right to vote for the election
of directors or upon any matter submitted to stockholders at any meeting
thereof, or to give or withhold consent to any corporate action, or to
receive notice of meetings or other actions affecting stockholders (except as
provided in the Rights Agreement), or to receive dividends or subscription
rights, or otherwise, until the Right or Rights evidenced by this Right
Certificate shall have been exercised as provided in the Rights Agreement.
This Right Certificate shall not be entitled to any benefit under the
Rights Agreement or be valid or obligatory for any purpose until it shall
have been authenticated by the Rights Agent.
WITNESS the facsimile signatures of the proper officers of the Company and
its corporate seal.
Dated as of ___________________, 1997.
ATTEST: CONCENTRA MANAGED CARE, INC.
[SEAL]
______________________ By: _________________________
Xxxxxxx X. Xxxx XX Xxxxxx X. Xxxxxx
Secretary President and Chief Executive Officer
B-2
Authentication:
This is one of the Right Certificates referred to in the within-mentioned
Rights Agreement.
ChaseMellon Shareholder Services, L.L.C., as Rights Agent
By: ______________________________
Authorized Signature
B-3
[Form of Reverse Side of Right Certificate)
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder
desires to transfer the Right Certificate)
FOR VALUE RECEIVED, ______________________________________ hereby sells,
assigns and transfers unto:
______________________________________________________________________________
______________________________________________________________________________
(Please print name and address of transferee)
______________________________________________________________________________
______________________________________________________________________________
this Right Certificate, together with all right, title and interest therein, and
does hereby irrevocably constitute and appoint ______________________ Attorney,
to transfer the within Right Certificate on the books of the within-named
Company, with full power of substitution.
Dated as of ___________________, ____.
____________________________________
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered national
securities exchange, a member of the National Association of Securities
Dealers, Inc., or a commercial bank or trust company having an office or
correspondent n the United States.
______________________________________________________________________________
[To be executed if statement is correct]
The undersigned hereby certifies that the Rights evidenced by this Right
Certificate are not beneficially owned by an Acquiring Person or an Affiliate or
Associate thereof (as defined in the Rights Agreement).
____________________________________
Signature
B-4
[Form of Reverse Side of Right Certificate -- continued]
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to
exercise the Right Certificate)
TO CONCENTRA MANAGED CARE, INC.:
The undersigned hereby irrevocably elects to exercise _____________
Rights represented by this Right Certificate to purchase the Preferred Shares
(or other securities) issuable upon the exercise of such Rights and requests
that certificates for such Preferred Shares (or other securities) be issued
in the name of:
Please insert social security
or other identifying number:
______________________________
______________________________________________________________________________
(Please print name and address)
______________________________________________________________________________
If such number of Rights shall not be all the Rights evidenced by this Right
Certificate, a new Right Certificate for the balance remaining of such Rights
shall be registered in the name of and delivered to:
Please insert social security
or other identifying number:
______________________________
______________________________________________________________________________
(Please print name and address)
______________________________________________________________________________
Dated as of ___________________, ____.
__________________________________
Signature
B-5
[Form of Reverse Side of Right Certificate -- continued]
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered national
securities exchange, a member of the National Association of Securities
Dealers, Inc., or a commercial bank or trust company having an office or
correspondent in the United States.
______________________________________________________________________________
[To be executed if statement is correct]
The undersigned hereby certifies that the Rights evidenced by this Right
Certificate are not beneficially owned by an Acquiring Person or an Affiliate or
Associate thereof (as defined in the Rights Agreement).
__________________________________
Signature
______________________________________________________________________________
NOTICE
The signature in the foregoing Form of Assignment or Form of Election to
Purchase must conform to the name as written upon the face of this Right
Certificate in every particular, without alteration or enlargement or any
change whatsoever.
In the event the certification set forth above in the Form of Assignment
or the Form of Election to Purchase, as the case may be, is not completed,
the Company and the Rights Agent will deem the beneficial owner of the Rights
evidenced by this Right Certificate to be an Acquiring Person or an Affiliate
or Associate thereof (as defined in the Rights Agreement) and such Assignment
or Election to Purchase will not be honored.
B-6
EXHIBIT C
FORM OF
SUMMARY OF RIGHTS TO PURCHASE
PREFERRED SHARES
On August ____, 1997, the Board of Directors of Concentra Managed Care,
Inc. (the "COMPANY"), authorized the issuance of one preferred share purchase
right (a "Right") with respect to each outstanding share of common stock,
$0.01 par value (the "COMMON SHARES"), of the Company. The rights were
issued on August _____, 1997 to the holders of record of Common Shares on
that date. Each Right entitles the registered holder to purchase from the
Company one one-thousandth of a share of Series A Junior Participating
Preferred Stock, $.01 par value (the "PREFERRED SHARES"), of the Company at a
price of $________ per one one-thousandth of a Preferred Share (the "PURCHASE
PRICE"), subject to adjustment. The description and terms of the Rights are
set forth in a Rights Agreement (the "RIGHTS AGREEMENT") dated as of August
_____, 1997, between the Company and ChaseMellon Shareholder Services,
L.L.C., as Rights Agent (the "RIGHTS AGENT").
DETACHMENT OF RIGHTS; EXERCISE. Initially, the Rights will attach to all
Common Share certificates representing outstanding shares and no separate
Right Certificate will be distributed. The Rights will separate from the
Common Shares and a Distribution Date will occur upon the earlier of (i) ten
business days following a public announcement that a person or group of
affiliated or associated persons (an "ACQUIRING PERSON") has acquired
beneficial ownership of 15% or more of the outstanding Voting Shares (as
defined in the Rights Agreement) of the Company, or (ii) ten business days
following the commencement or announcement of an intention to commence a
tender offer or exchange offer the consummation of which would result in the
beneficial ownership by a person or group of 15% or more of such outstanding
Voting Shares.
Until the Distribution Date (or earlier redemption or expiration of the
Rights) (i) the Rights will be evidenced, with respect to any of the Common
Shares outstanding on August ____, 1997, by the certificates representing
such Common Shares with a notation incorporating the Rights Agreement by
reference, (ii) the Rights will be transferred with and only with the Common
Shares, (iii) new Common Share certificates issued after August _____, 1997,
upon transfer or new issuance of the Common Shares will contain a notation
incorporating the Rights Agreement by reference, and (iv) the surrender for
transfer of any certificates for Common Shares outstanding as of August
_____, 1997, even without such notation, will also constitute the transfer of
the Rights associated with the Common Shares represented by such certificate.
As soon as practicable following the Distribution Date, separate
certificates evidencing the Rights (the "RIGHT CERTIFICATES") will be mailed
to holders of record of the Common Shares as of the close of business on the
Distribution Date and such separate Right Certificates alone will thereafter
evidence the Rights.
C-1
The Rights are not exercisable until the Distribution Date. The Rights
will expire on August ____, 2007 (the "FINAL EXPIRATION DATE"), unless the
Final Expiration Date is extended or the Rights are earlier redeemed or
exchanged by the Company as described below.
If a person or group were to acquire 15% or more of the Voting Shares of
the Company, each Right then outstanding (other than Rights beneficially
owned by the acquiring person which would become null and void) would become
a right to buy that number of Common Shares (or under certain circumstances,
the equivalent number of one one-thousandths of a Preferred Share) that at
the time of such acquisition would have a market value of two times the
Purchase Price of the Right.
If the Company were acquired in a merger or other business combination
transaction or more than 50% of its consolidated assets or earning power were
sold, proper provision will be made so that each holder of a Right will
thereafter have the right to receive, upon the exercise thereof at the then
current Purchase Price of the Right, that number of shares of common stock of
the acquiring company which at the time of such transaction would have a
market value of two times the Purchase Price of the Right.
PREFERRED SHARES. The dividend and liquidation rights, and the
non-redemption feature, of the Preferred Shares are designed so that the
value of one one-thousandth of a Preferred Share purchasable upon exercise of
each Right will approximate the value of one Common Share. The Preferred
Shares issuable upon exercise of the Rights will be non-redeemable and rank
junior to all other series of the Company's preferred stock. Each whole
Preferred Share will be entitled to receive a quarterly preferential dividend
in an amount per share equal to the greater of (i) $1.00 in cash, or (ii) in
the aggregate, 1,000 times the dividend declared on the Common Shares. In
the event of liquidation, the holders of the Preferred Shares will be
entitled to receive a preferential liquidation payment equal to the greater
of (i) $1,000 per share, or (ii) in the aggregate, 1,000 times the payment
made on the Common Shares. In the event of any merger, consolidation or
other transaction in which Common Shares are exchanged for or changed into
other stock or securities, cash or other property, each whole Preferred Share
will be entitled to receive 1,000 times the amount received per Common Share.
Each whole Preferred Share shall be entitled to 1,000 votes on all matters
submitted to a vote of the stockholders of the Company, and Preferred Shares
shall generally vote together as one class with the Common Stock and any
other capital stock on all matters submitted to a vote of stockholders of the
Company.
The offer and sale of the Preferred Shares issuable upon exercise of the
Rights will be registered with the Securities and Exchange Commission and
such registration will not be effective until the Rights become exercisable.
ANTIDILUTION AND OTHER ADJUSTMENTS. The number of one one-thousandths of
a Preferred Share or other securities or property issuable upon exercise of
the Rights, and the Purchase Price payable, are subject to customary
adjustments from time to time to prevent dilution.
The number of outstanding Rights and the number of one one-thousandths of a
Preferred Share issuable upon exercise of each Right are also subject to
adjustment in the event of a stock split of the Common Shares or a stock
dividend on the Common Shares
C-2
payable in Common Shares or subdivisions, consolidations or combinations of
the Common Shares occurring, in any such case, prior to the Distribution Date.
EXCHANGE OPTION. At any time after the acquisition by a person or group
of affiliated or associated persons of beneficial ownership of 15% or more of
the outstanding Voting Shares of the Company and before the acquisition by a
person or group of 50% or more of the outstanding Voting Shares of the
Company, the Board of Directors may, at its option, issue Common Shares in
mandatory redemption of, and in exchange for, all or part of the then
outstanding and exercisable Rights (other than Rights owned by such person or
group which would become null and void) at an exchange ratio of one Common
Share (or one one-thousandth of a Preferred Share) for each two Common Shares
for which each Right is then exercisable, subject to adjustment.
REDEMPTION OF RIGHTS. At any time prior to the first public announcement
that a person or group has become the beneficial owner of 15% or more of the
outstanding Voting Shares, the Board of Directors of the Company may redeem
all but not less than all the then outstanding Rights at a price of $0.001
per Right (the "REDEMPTION PRICE"). The redemption of the Rights may be made
effective at such time, on such basis and with such conditions as the Board
of Directors in its sole discretion may establish. Immediately upon the
action of the Board of Directors ordering redemption of the Rights, the right
to exercise the Rights will terminate and the only right of the holders of
Rights will be to receive the Redemption Price.
NO RIGHTS AS STOCKHOLDER. Until a Right is exercised, the holder
thereof, as such, will have no rights as a stockholder of the Company,
including, without limitation, the right to vote or to receive dividends.
AMENDMENT OF RIGHTS. The terms of the Rights may be amended by the Board
of Directors of the Company without the consent of the holders of the Rights,
including an amendment to extend the Final Expiration Date, and, provided a
Distribution Date has not occurred, to extend the period during which the
Rights may be redeemed, except that after the first public announcement that
a person or group has become the beneficial owner of 15% or more of the
outstanding Voting Shares, no such amendment may materially and adversely
affect the interests of the holders of the Rights.
THIS SUMMARY DESCRIPTION OF THE RIGHTS DOES NOT PURPORT TO BE COMPLETE
AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO THE RIGHTS AGREEMENT, WHICH
IS HEREBY INCORPORATED HEREIN BY REFERENCE.
A copy of the Rights Agreement has been filed with the Securities and
Exchange Commission as an Exhibit to a Registration Statement on Form 8-A
dated August ____, 1997. A copy of the Rights Agreement is available free of
charge from the Company.
C-3
