------------------------------------------------------------------------------
G&K SERVICES, INC.
AND
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION
RIGHTS AGENT
------
RIGHTS AGREEMENT
DATED AS OF SEPTEMBER 17, 2001
------------------------------------------------------------------------------
TABLE OF CONTENTS
SECTION PAGE
------- ----
1. CERTAIN DEFINITIONS......................................................................................1
2. APPOINTMENT OF RIGHTS AGENT..............................................................................3
3. ISSUE OF RIGHTS CERTIFICATES.............................................................................4
4. FORM OF RIGHTS CERTIFICATES..............................................................................5
5. COUNTERSIGNATURE AND REGISTRATION........................................................................6
6. TRANSFER, SPLIT UP, COMBINATION AND EXCHANGE OF RIGHTS CERTIFICATES; MUTILATED, DESTROYED,
LOST OR STOLEN RIGHTS CERTIFICATES.......................................................................6
7. EXERCISE OF RIGHTS; PURCHASE PRICE; EXPIRATION DATE OF RIGHTS............................................7
8. CANCELLATION AND DESTRUCTION OF RIGHTS CERTIFICATES......................................................9
9. RESERVATION AND AVAILABILITY OF COMMON STOCK.............................................................9
10. COMMON STOCK RECORD DATE................................................................................10
11. ADJUSTMENT OF PURCHASE PRICE, NUMBER AND KIND OF SHARES OR NUMBER OF RIGHTS.............................11
12. CERTIFICATE OF ADJUSTED PURCHASE PRICE OR NUMBER OF SHARES..............................................16
13. CONSOLIDATION, MERGER OR SALE OR TRANSFER OF ASSETS OR EARNING POWER....................................16
14. FRACTIONAL RIGHTS AND FRACTIONAL SHARES.................................................................18
15. RIGHTS OF ACTION........................................................................................19
16. AGREEMENT OF RIGHTS HOLDERS.............................................................................20
17. RIGHTS CERTIFICATE HOLDER NOT DEEMED A STOCKHOLDER......................................................20
18. CONCERNING THE RIGHTS AGENT.............................................................................20
19. MERGER OR CONSOLIDATION OR CHANGE OF NAME OF RIGHTS AGENT...............................................21
20. DUTIES OF RIGHTS AGENT..................................................................................21
21. CHANGE OF RIGHTS AGENT..................................................................................23
22. ISSUANCE OF NEW RIGHTS CERTIFICATES.....................................................................23
23. REDEMPTION AND TERMINATION..............................................................................24
24. EXCHANGE................................................................................................25
25. NOTICE OF CERTAIN EVENTS................................................................................26
26. NOTICES.................................................................................................26
27. SUPPLEMENTS AND AMENDMENTS..............................................................................27
28. SUCCESSORS..............................................................................................27
29. BENEFITS OF THIS AGREEMENT..............................................................................27
30. ADMINISTRATION OF AGREEMENT.............................................................................27
31. SEVERABILITY............................................................................................28
32. GOVERNING LAW...........................................................................................28
33. COUNTERPARTS............................................................................................28
34. DESCRIPTIVE HEADINGS....................................................................................28
35. SIGNATURE PAGE..........................................................................................29
RIGHTS AGREEMENT
RIGHTS AGREEMENT, dated as of September 17, 2001 (the "AGREEMENT"),
between G&K Services, Inc., a
Minnesota corporation (the "COMPANY"), and
We1ls Fargo Bank
Minnesota, National Association (the "RIGHTS AGENT").
WHEREAS, on August 30, 2001, the Board of Directors of the Company
(the "BOARD") authorized and declared a dividend distribution of (i) one
Class A Right (as hereinafter defined) for each share of Class A Common
Stock, par value $.50 per share (the "CLASS A COMMON STOCK") of the Company
outstanding on September 21, 2001 (the "RECORD DATE"), each Class A Right
initially represents the right to purchase one share of Class A Common Stock
upon the terms and subject to the conditions hereinafter set forth (the
"CLASS A RIGHTS"), and (ii) one Class B Right (as hereinafter defined) for
each share of Class B Common Stock, par value $.50 per share (the "CLASS B
COMMON STOCK"; and collectively with the Class A Common Stock as the "COMMON
STOCK"), of the Company outstanding on the Record Date, each Class B Right
initially represents the right to purchase one share of Class B Common Stock
upon the terms and subject to the conditions hereinafter set forth (the
"CLASS B RIGHTS"; and collectively with the Class A Rights as the "RIGHTS").
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby amend and restate the
Agreement and agree as follows:
SECTION 1. CERTAIN DEFINITIONS. For purposes of this Agreement, the
following terms have the meanings indicated:
(a) "ACQUIRING PERSON" shall mean any Person (as such term
is hereinafter defined) who or which, together with all Affiliates (as such
term is hereinafter defined) and Associates (as such term is hereinafter
defined) of such Person, without the prior approval of a majority of the
Board of Directors shall be the Beneficial Owner (as such term is hereinafter
defined) of voting securities representing 15% or more of the then voting
power of the Company or who was such a Beneficial Owner at any time after the
date hereof, whether or not such person continues to be the Beneficial Owner
of voting securities having 15% or more of the then voting power of the
Company. Notwithstanding the foregoing, (A) the term Acquiring Person shall
not include (i) the Company, any Subsidiary of the Company, any employee
benefit plan of the Company or of any Subsidiary of the Company, or any
entity organized, appointed or established by the Company for or pursuant to
the terms of any such plan, (ii) any Person, who or which together with all
Affiliates of such Person becomes the Beneficial Owner of 15% or more of the
then outstanding shares of Common Stock as a result of the acquisition of
Common Stock directly from the Company (provided, however, that if, after
such acquisition, such Person or any Affiliate of such Person becomes the
Beneficial Owner of any additional shares of Common Stock in an acquisition
not made directly from the Company, then such Person shall be deemed an
Acquiring Person), or (iii) any Person who was the Beneficial Owner of voting
securities having 15% or more of the voting power of the Company on the date
of this Agreement, and (B) no Person shall be deemed to be an Acquiring
Person either (X) as a result of the acquisition of Common Stock by the
Company which, by reducing the number of shares of Common Stock outstanding,
increases the proportionate voting percentage Beneficially Owned by such
Person together with all
1
Affiliates of such Person; except that if (i) such Person would become an
Acquiring Person (but for the operation of this subclause (X)) as a result of
the acquisition of Common Stock by the Company, and (ii) after such share
acquisition by the Company, such Person or any Affiliate of such Person
becomes the Beneficial Owner of any additional shares of Common Stock, then
such Person shall be deemed an Acquiring Person or (Y) if (i) such Person or
any Affiliate of such Person inadvertently becomes the Beneficial Owner of
shares of voting securities representing 15% or more of the voting power of
the Company, and (ii) within eight (8) calendar days thereafter such Person
notifies the Board of Directors that such Person did so inadvertently and
(iii) within two (2) days after such notification, such Person is the
Beneficial Owner of shares of voting securities representing less than 15% of
the voting power of the Company. For purposes of this Agreement, any
calculation of the number of shares of Common Stock outstanding at any
particular time, including for purposes of determining the particular
percentage of such outstanding shares of Common Stock (and therefore the
particular percentage of voting power of the Company) of which any Person is
the Beneficial Owner, shall be made in accordance with the last sentence of
Rule 13d-3(d)(1)(i) of the General Rules and Regulations under the Securities
Exchange Act of 1934, as amended, as in effect on the date of this Agreement
(the "EXCHANGE ACT").
(b) "ACQUISITION EVENT" shall mean either the event
described in Section 11(a)(ii) or Section 13(a) hereof.
(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.
(d) A Person shall be deemed the "BENEFICIAL OWNER" of, and
shall be deemed to "BENEFICIALLY OWN", any securities:
(i) which such Person or any of such Person's
Affiliates or Associates beneficially owns, directly or indirectly;
(ii) which such Person or any of such Person's
Affiliates or Associates has (A) the right or obligation to acquire (whether
such right or obligation is exercisable or effective immediately or only
after the passage of time) pursuant to any agreement, arrangement or
understanding (whether or not in writing) or upon the exercise of conversion
rights, exchange rights, rights (other than the Rights at any time prior to
the occurrence of an Acquisition Event, but thereafter including the Rights
acquired from and after the Distribution Date (as defined in Section 3(a)
below) other than pursuant to Section 3(a) below), warrants or options, or
otherwise; 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 such Person or any of such Person's
Affiliates or Associates until such tendered securities are accepted for
purchase or exchange; or (B) the right to vote 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 clause (B) if the agreement,
arrangement or understanding to vote such security: (1) arises solely from a
revocable proxy given 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 (2) is not also then reportable by such
Person on Schedule 13D under the Exchange Act (or any comparable or successor
report); or
2
(iii) which are beneficially owned, directly or
indirectly, by any other Person (or any Affiliate or Associate thereof) with
which such Person or any of such Person's Affiliates or Associates has any
agreement, arrangement or understanding (whether or not in writing), for the
purpose of acquiring, holding, voting (except pursuant to a revocable proxy
as described in clause (B) of subparagraph (ii) of this paragraph (d)) or
disposing of any voting securities of the Company.
(e) "BUSINESS DAY" shall mean any day other than a
Saturday, Sunday or a day on which banking institutions in the State of
Minnesota 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., Minneapolis,
Minnesota time, on such date; PROVIDED, HOWEVER, that if
such date is not a Business Day it shall mean 5:00 P.M., Minneapolis,
Minnesota time, on the next succeeding Business Day.
(g) "COMMON STOCK" shall mean the Class A Common Stock and
Class B Common Stock, except that "Common Stock" when used with reference to
any Person other than the Company shall mean the capital stock of such Person
with the greatest voting power, or the equity securities or other equity
interest having power to control or direct the management, of such Person or,
if such Person is a subsidiary of another Person, the Person which ultimately
controls such first-mentioned Person and which has issued and outstanding
capital stock, equity securities or equity interests.
(h) "PERSON" shall mean any individual, firm, corporation,
partnership or other entity.
(i) "STOCK ACQUISITION DATE" shall mean the first date of
public announcement (which, for purposes of this definition, includes,
without limitation, a report filed pursuant to Section 13(d) of the Exchange
Act) by the Company or an Acquiring Person that an Acquiring Person has
become such.
(j) "SUBSIDIARY" shall mean, with reference to any other
Person, any corporation of which a majority of any class of equity security is
beneficially owned, directly or indirectly, by such other Person.
Any determination required by the definitions contained in
this Section 1 shall be made by the Board in their good faith judgment, which
determination shall be final and binding on the Rights Agent.
SECTION 2. 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 Stock) 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. In the event the Company appoints one or more Co-Rights Agents, the
respective duties of the Rights Agent and any Co-Rights Agent shall be as the
Company shall determine.
3
SECTION 3. ISSUE OF RIGHTS CERTIFICATES.
(a) Until the earlier of (i) the close of business on the
tenth Business Day after the Stock Acquisition Date, or (ii) the close of
business on the tenth Business Day after the date of the commencement of, or
first public announcement of the intent of any Person (other than the
Company, any Subsidiary of the Company or any employee benefit plan of the
Company or of any Subsidiary of the Company or any entity organized,
appointed or established by the Company for or pursuant to the terms of any
such plan), to commence (which intention to commence remains in effect for
five Business Days after such announcement), a tender or exchange offer which
would result in such person becoming the Beneficial Owner of voting
securities having 15% or more of the then voting power of the Company
(including any such date which is after the date of this Agreement and prior
to the issuance of the Rights), (the earlier of such dates being herein
referred to as the "DISTRIBUTION DATE"), (x) the Class A Rights and the Class
B Rights, respectively, will be evidenced (subject to the provisions of
paragraph (b) of this Section 3) by the certificates for Class A Common Stock
and Class B Common Stock registered in the names of the holders of such
Common Stock (which certificates shall be deemed also to be certificates for
the Rights) and not by separate certificates, and (y) the Rights (and the
right to receive certificates therefor) will be transferable only in
connection with the transfer of the underlying shares of Common Stock
(including a transfer to the Company). As soon as practicable after the
Distribution Date, the Rights Agent will send by first-class, postage prepaid
mail (i) to each record holder of Class A Common Stock as of the close of
business on the Distribution Date, at the address of such holder shown on the
records of the Company, one or more rights certificates, in substantially the
form of EXHIBIT A hereto (the "CLASS A RIGHTS CERTIFICATES"), evidencing one
Right for each share of Class A Common Stock so held; and (ii) to each record
holder of Class B Common Stock as of the close of business on the
Distribution Date, at the address of such holder shown on the records of the
Company, one or more rights certificates, in substantially the form of
EXHIBIT B hereto (the "CLASS B RIGHTS CERTIFICATES"), evidencing one Right
for each share of Class B Common Stock so held. As of and after the
Distribution Date, the Rights will be evidenced solely by such Rights
Certificates.
(b) The Company sent a copy of a Summary of Rights, in
substantially the form of EXHIBIT C attached hereto, to each record holder of
Common Stock as of the Record Date. With respect to certificates for the
Class A Common Stock outstanding as of the Record Date, until the
Distribution Date, the Class A Rights will be evidenced by such certificates
and the registered holders of such Class A Common Stock shall also be the
registered holders of the associated Class A Rights. With respect to
certificates for the Class B Common Stock outstanding as of the Record Date,
until the Distribution Date, the Class B Rights will be evidenced by such
certificates and the registered holders of such Class B Common Stock shall
also be the registered holders of the associated Class B Rights. Until the
earlier of the Distribution Date or the Expiration Date (as such term is
defined in Section 7 hereof), the surrender for transfer of any of the
certificates for the Class A Common Stock or Class B Common Stock outstanding
on the Record Date shall also constitute the transfer of the respective Class
A Rights and Class B Rights associated with such certificates.
(c) Certificates for the Common Stock issued after the
Record Date, but prior to the earlier of the Distribution Date or the
Expiration Date, shall be deemed also to be certificates for Rights, and
shall bear the following legend:
4
This certificate also evidences and entitles the
holder hereof to certain Rights as set forth in the
Rights Agreement between G&K Services, Inc. and Xxxxx
Fargo Bank
Minnesota, National Association dated as
of September 17, 2001 (the "
RIGHTS AGREEMENT"), the
terms of which are hereby incorporated herein by
reference and a copy of which is on file at the
principal offices of G&K Services, 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. G&K Services, Inc. will mail to the
holder of this certificate a copy of the
Rights
Agreement without charge promptly after receipt of a
written request therefor. Under certain
circumstances, Rights issued to, or held by,
Acquiring Persons, or Affiliates or Associates
thereof (as such terms are defined in the
Rights
Agreement) and any subsequent holder of such Rights
may become null and void.
With respect to such certificates containing the foregoing
legend, until the earlier of (i) the Distribution Date or (ii) the Expiration
Date, the Rights associated with the Common Stock represented by such
certificates shall be evidenced by such certificates alone and the registered
holders of Common Stock shall also be the registered holders of the
associated Rights, and the surrender for transfer of any of such certificates
shall also constitute the transfer of the Rights associated with the Common
Stock represented by such certificates.
SECTION 4. FORM OF RIGHTS CERTIFICATES.
(a) The Class A Rights Certificates and the Class B Rights
Certificates (and the forms of election to exercise and of assignment to be
printed on the reverse thereof) shall each be substantially in the form
attached hereto as EXHIBITS A and B, respectively, and may have such marks of
identification or designation and such legends, summaries or endorsements
printed thereon as the Company may deem appropriate and as are not
inconsistent with the provisions of this Agreement, or as may be required to
comply with any applicable law or 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 to conform to usage. Subject to
the provisions of Section 11 and Section 22 hereof, the Rights Certificates,
whenever distributed, shall be dated as of the Record Date and on their face
shall entitle the holders thereof to purchase such number of shares of Class
A Common Stock or Class B Common Stock, as applicable, as shall be set forth
therein at the price per share set forth therein (the "PURCHASE PRICE"), but
the number of such shares and the Purchase Price shall be subject to
adjustment as provided herein.
(b) Any Rights Certificate issued pursuant to Section 3(a)
or Section 22 hereof that represents Rights beneficially owned by: (i) an
Acquiring Person or any Associate or Affiliate of an Acquiring Person, (ii) a
transferee of an Acquiring Person (or such Associate or Affiliate) who
becomes a transferee after the Acquiring Person becomes such, or (iii) a
transferee of an Acquiring Person (or 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) a transfer
(whether or not for consideration) from the Acquiring Person to or on behalf
of holders of equity interests in such Acquiring
5
Person or to any Person with whom the Acquiring Person has any continuing
agreement, arrangement or understanding regarding the transferred Rights or
(B) a transfer which the Board of Directors otherwise concludes in good faith
(as determined in its discretion by the vote of a majority of the Directors
then in office) is part of a plan, arrangement or understanding which has as
a primary purpose or effect avoidance of Section 7(e) hereof, and any Rights
Certificate issued pursuant to Section 6 or Section 11 hereof upon transfer,
exchange, replacement or adjustment of any other Rights Certificate referred
to in this sentence, shall contain (to the extent feasible and reasonably
identifiable as such) the following legend:
The Rights represented by this Rights Certificate are
or were beneficially owned by a Person who was or
became an Acquiring Person or an Affiliate or
Associate of an Acquiring Person (as such terms are
defined in that certain
Rights Agreement between G&K
Services, Inc. and Xxxxx Fargo Bank
Minnesota,
National Association dated as of September 17, 2001
(the "
RIGHTS AGREEMENT"). Accordingly, this Rights
Certificate and the Rights represented hereby may
become void in the circumstances specified in Section
7(e) of the Rights Agreement.
The provisions of Section 7(e) of the Rights Agreement shall be
operative whether or not the foregoing legend is contained on any such Rights
Certificate.
SECTION 5. COUNTERSIGNATURE AND REGISTRATION.
(a) The Rights Certificates shall be executed on behalf of
the Company by its Chairman of the Board, its Chief Executive Officer, or its
President, either manually or by facsimile signature, which shall be attested
by the Secretary or an Assistant Secretary of the Company, either manually or
by facsimile signature. The Rights Certificates shall be manually
countersigned by the Rights Agent and shall not be valid for any purpose
unless so countersigned. In case any officer of the Company who shall have
signed any of the Rights Certificates shall cease to be such officer of the
Company before countersignature by the Rights Agent and issuance and delivery
by the Company, such Rights Certificates, nevertheless, may be countersigned
by the Rights Agent, and issued and delivered by the Company with the same
force and effect as though the person who signed such Rights Certificates had
not ceased to be such officer of the Company; and any Rights Certificates may
be signed on behalf of the Company by any person who, at the actual date of
the execution of such Rights Certificate, shall be a proper officer of the
Company to sign such Rights Certificate, although at the date of the
execution of this Rights Agreement any such person was not such an officer.
(b) Following the Distribution Date, the Rights Agent will
keep or cause to be kept, at its offices in St. Xxxx,
Minnesota, books for
registration and transfer of the Rights Certificates issued hereunder. Such
books shall show the names and addresses of the respective holders of the
Rights Certificates, the number of Rights evidenced on its face by each of
the Rights Certificates and the date of each of the Rights Certificates.
SECTION 6. TRANSFER, SPLIT UP, COMBINATION AND EXCHANGE OF RIGHTS
CERTIFICATES; MUTILATED, DESTROYED, LOST OR STOLEN RIGHTS CERTIFICATES.
6
(a) Subject to the provisions of Section 14 hereof, at any
time after the close of business on the Distribution Date, and at or prior to
the close of business on the Expiration Date, any Rights Certificate or
Certificates may be transferred, split up, combined or exchanged for another
Rights Certificate or Certificates, entitling the registered holder to
purchase a like number of shares of Common Stock as the Rights Certificate or
Certificates surrendered then entitled such holder to purchase. Any
registered holder desiring to transfer, split up, combine or exchange any
Rights Certificate shall make such request in writing delivered to the Rights
Agent, and shall surrender the Rights Certificate or Rights Certificates to
be transferred, split up, combined or exchanged at the office or offices of
the Rights Agent designated for such purpose. Thereupon the Rights Agent
shall countersign and deliver to the Person entitled thereto a Rights
Certificate or Rights Certificates, as the case may be, as so requested. The
Company may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer,
split up, combination or exchange of Rights Certificates.
(b) Upon receipt by the Company and the Rights Agent of
evidence reasonably satisfactory to them of the loss, theft, destruction or
mutilation of a Rights Certificate, and, in case of loss, theft or
destruction, of indemnity or security reasonably satisfactory to them, and
reimbursement to the Company and the Rights Agent of all reasonable expenses
incidental thereto, and upon surrender to the Rights Agent and cancellation
of the Rights Certificate if mutilated, the Company will execute and deliver
a new Rights Certificate of like tenor to the Rights Agent for
countersignature and delivery to the registered owner in lieu of the Rights
Certificate so lost, stolen, destroyed or mutilated.
SECTION 7. EXERCISE OF RIGHTS; PURCHASE PRICE; EXPIRATION DATE OF
RIGHTS.
(a) Subject to Section 7(e), the registered holder of any
Rights Certificate may exercise the Rights evidenced thereby (except as
otherwise provided herein including without limitation, the restrictions on
exercisability set forth in Section 9(c), Section 11(a)(iii) and Section
23(a) hereof) in whole or in part at any time after the Distribution Date
upon surrender of the Rights Certificate, with the form of election to
exercise on the reverse side thereof duly executed, to the Rights Agent at
the office or offices of the Rights Agent designated for such purpose,
together with payment of the Purchase Price for each share of Common Stock
(or, if applicable, such other number of shares or other securities) as to
which the Rights are exercised, at or prior to the earlier of (i) the close
of business on September 16, 2011 (the "FINAL EXPIRATION DATE"), or (ii) the
time at which the Rights are redeemed as provided in Section 23 hereof (such
earlier time being herein referred to as the "EXPIRATION DATE"). Any Person
who prior to the Distribution Date becomes a record holder of shares of
Common Stock may exercise all of the rights of a registered holder of a
Rights Certificate with respect to the Rights associated with such shares of
Common Stock in accordance with and subject to the provisions of this
Agreement, including the provisions of Section 7(e) hereof, as of the date
such Person becomes a record holder of shares of Common Stock.
(b) The Purchase Price for each share of Class A Common
Stock and each share of Class B Common Stock pursuant to the exercise of a
Class A Right or a Class B Right, as applicable, shall initially be One
Hundred Thirty Dollars ($130.00), and shall be subject to adjustment from
time to
7
time as provided in Section 11 hereof and shall be payable in lawful money of
the United States of America in accordance with paragraph (c) below.
(c) Upon receipt of a Rights Certificate representing
exercisable Rights, with the form of election to exercise duly executed,
accompanied by payment (in cash, or by certified check or bank draft payable
to the order of the Company) of the Purchase Price for the shares to be
purchased and an amount equal to any applicable transfer tax, the Rights
Agent shall thereupon promptly (i) (A) requisition from any transfer agent of
the shares of Common Stock (or make available, if the Rights Agent is the
transfer agent for such shares) certificates for the number of shares of
Common Stock to be purchased and the Company hereby irrevocably authorizes
its transfer agent to comply with all such requests, or (B) if the Company,
in its sole discretion, shall have elected to deposit the shares of Common
Stock issuable upon exercise of the Rights hereunder into a depositary,
requisition from the depositary agent depositary receipts representing such
number of shares of Common Stock as are to be purchased (in which case
certificates for the shares of Common Stock represented by such receipts
shall be deposited by the transfer agent with the depositary agent) and the
Company will direct the depositary agent to comply with such request, (ii)
when appropriate, requisition from the Company the amount of cash, if any, to
be paid in lieu of fractional shares in accordance with Section 14 hereof,
(iii) after receipt of such certificates or depositary receipts, cause the
same to be delivered to or upon the order of the registered holder of such
Rights Certificate, registered in such name or names as may be designated by
such holder, and (iv) when appropriate, after receipt thereof, deliver such
cash, if any, to or upon the order of the registered holder of such Rights
Certificate. In the event that the Company is obligated to issue other
securities of the Company, pay cash and/or distribute other property pursuant
to Section 11(a)(iii) hereof, the Company will make all arrangements
necessary so that such other securities, cash, and/or property are available
for distribution by the Rights Agent, if and when appropriate. In addition,
in the case of an exercise of the Rights by a holder pursuant to Section
11(a)(ii), the Rights Agent shall return such Rights Certificate to the
registered holder thereof after imprinting, stamping or otherwise indicating
thereon that the Rights represented by such Rights Certificate no longer
include the Rights provided by Section 11(a)(ii) of the Rights Agreement and
if less than all the Rights represented by such Rights Certificate were so
exercised, the Rights Agent shall indicate on the Rights Certificate the
number of Rights represented thereby which continue to include the Rights
provided by Section 11(a)(ii).
(d) In case the registered holder of any Rights Certificate
shall exercise (except pursuant to Section 11(a)(ii)) less than all the
Rights evidenced thereby, a new Rights Certificate evidencing Rights
equivalent to the Rights remaining unexercised shall be issued by the Rights
Agent and delivered to the registered holder of such Rights Certificate or to
such holder's duly authorized assigns, subject to the provisions of Section
14 hereof.
(e) Notwithstanding anything in this Agreement to the
contrary, from and after the occurrence of the event described in Section
11(a)(ii), any Rights beneficially owned by (a) an Acquiring Person or an
Associate or Affiliate of an Acquiring Person, (b) except as provided below,
a transferee of an Acquiring Person (or such Associate or Affiliate) who
becomes a transferee after the Acquiring Person becomes such, and (c) except
as provided below, a transferee of an Acquiring Person (or 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
(i) a transfer (whether or not for
8
consideration) from the Acquiring Person to or on behalf of 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 (ii) a transfer which the Board of Directors
otherwise concludes in good faith (as determined in its discretion by the
vote of a majority of the Directors then in office) is part of a plan,
arrangement or understanding which has as a primary purpose or effect of
avoidance of this Section 7(e), shall become null and void without any
further action, and any holder of such Rights shall thereupon have no right
to exercise such Rights. The Board of Directors (as determined in its
discretion by the vote of a majority of the Directors then in office) may in
appropriate circumstances waive application of this Section 7(e) and the
requirements of Section 4(b) to any transfer by an Acquiring Person in
connection with a transfer or series of transfers which cause an Acquiring
Person to become the Beneficial Owner of voting securities having 5% or less
of the voting power of the Company. The Company shall use all reasonable
efforts to insure that the provisions of this Section 7(e) hereof are
complied with, but shall have no liability to any holder of Rights for the
inability to make any determinations with respect to an Acquiring Person or
its Affiliates, Associates or transferees hereunder.
(f) Notwithstanding anything in this Agreement to the
contrary, neither the Rights Agent nor the Company shall be obligated to
undertake any action with respect to a registered holder of any Rights
Certificate upon the occurrence of any purported exercise as set forth in
this Section 7 unless the certificate contained in the appropriate form of
election to purchase set forth on the reverse side of the Rights Certificate
surrendered for such exercise shall have been completed and signed by the
registered holder thereof and the Company shall have been provided with such
additional evidence of the identity of the Beneficial Owner (or former
Beneficial Owner) of such Rights Certificate or Affiliates or Associates
thereof as the Company shall reasonably request.
SECTION 8. CANCELLATION AND DESTRUCTION OF RIGHTS CERTIFICATES. All
Rights Certificates surrendered for the purpose of exercise, transfer, split
up, combination or exchange shall, if surrendered to the Company or any of
its agents, be delivered to the Rights Agent for cancellation or in canceled
form, or, if surrendered to the Rights Agent, shall be canceled by it, and no
Rights Certificates shall be issued in lieu thereof except as expressly
permitted by 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 Rights Certificate purchased or
acquired by the Company otherwise than upon the exercise thereof. The Rights
Agent shall deliver all canceled Rights Certificates to the Company one and
one-half years after the cancellation date.
SECTION 9. RESERVATION AND AVAILABILITY OF COMMON STOCK.
(a) The Company covenants and agrees that it will cause to
be reserved and kept available out of its authorized and unissued shares of
Common Stock, the number of shares of Class A common Stock and Class B Common
Stock that, except as provided in Section 11(a)(iii) and subject to Section
7(e) hereof, will be sufficient to permit the exercise in full of all
outstanding Rights. In the event that there shall not be sufficient
authorized but unissued shares of Class A Common Stock or Class B Common
Stock to permit such exercise, the Company shall use its best efforts to have
the stockholders of the Company take such action as may be necessary to
authorize additional shares of Class A Common Stock or Class B Common Stock
for issuance upon exercise of Rights.
9
(b) If the Company's Common Stock is listed on any national
securities exchange, the Company shall use its best efforts to cause, from
and after such time as the Rights become exercisable, all shares reserved for
issuance upon the exercise of the Rights to be listed on such exchange upon
official notice of issuance upon such exercise.
(c) The Company shall use its best efforts to (i) file, as
soon as practicable following the Distribution Date, a registration statement
under the Securities Act of 1933 (the "ACT"), with respect to the Rights and
the securities purchasable upon exercise of the Rights on an appropriate
form, (ii) cause such registration statement to become effective as soon as
practicable after such filing, and (iii) cause such registration statement to
remain effective (with a prospectus at all times meeting the requirements of
the Act) until the date of the expiration of the Rights. The Company will
also take such action as may be appropriate under the blue sky laws of the
various states. The Company may temporarily suspend, for a period of time not
to exceed ninety (90) days, the exercisability of the Rights in order to
prepare and file any required registration statement. Upon any such
suspension, the Company shall issue a public announcement stating that the
exercisability of the Rights has been temporarily suspended, as well as a
public announcement at such time as the suspension is no longer in effect.
(d) The Company covenants and agrees that it will take all
such action as may be necessary to ensure that all shares of Common Stock
delivered upon exercise of Rights shall, at the time of delivery of the
certificates for such shares (subject to payment of the Purchase Price), be
duly and validly authorized and issued and fully paid and nonassessable
shares.
(e) 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
Rights Certificates and of any certificates for shares of Common Stock 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 Rights Certificates to a Person other than, or the issuance or delivery of
the shares of Common Stock in respect of a name other than that of, the
registered holder of the Rights Certificates evidencing Rights surrendered
for exercise or to issue or deliver any certificates for shares of Common
Stock in a name other than that of the registered holder upon the exercise of
any Rights until such tax shall have been paid (any such tax being payable by
the holder of such Rights Certificate at the time of surrender) or until it
has been established to the Company's satisfaction that no such tax is due.
SECTION 10. COMMON STOCK RECORD DATE. Each Person in whose name any
certificate for shares of Common Stock (or other securities, as the case may
be) is issued upon the exercise of Rights shall for all purposes be deemed to
have become the holder of record of the shares of Common Stock (or other
securities, as the case may be) represented thereby on, and such certificate
shall be dated the date upon which the Rights Certificate evidencing such
Rights was duly surrendered and payment of the Purchase Price (and all
applicable transfer taxes) was made; PROVIDED, HOWEVER, that if the date of
such surrender and payment is a date upon which the Common Stock (or other
securities, as the case may be) transfer books of the Company are closed,
such person shall be deemed to have become the record holder of such shares
on, and such certificate shall be dated, the next succeeding Business Day on
which the Common Stock transfer books of the Company are open. Prior to the
exercise of the Rights evidenced thereby, the holder of a Rights Certificate
shall not be entitled to any rights of a stockholder
10
of the Company with respect to shares for which the Rights shall be
exercisable, including, without limitation, the right 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.
SECTION 11. ADJUSTMENT OF PURCHASE PRICE, NUMBER AND KIND OF SHARES
OR NUMBER OF RIGHTS. The Purchase Price, the number and kind of shares
covered by each Right and the number of Rights outstanding are subject to
adjustment from time to time as provided in this Section 11.
(a) (i) In the event the Company shall at any time after
the date of this Agreement (A) declare a dividend on the Common Stock payable
in shares of Common Stock, (B) subdivide the outstanding Common Stock, (C)
combine the outstanding Common Stock into a smaller number of shares, or (D)
issue any shares of its capital stock in a reclassification of the Common
Stock (including any such reclassification in connection with a consolidation
or merger in which the Company is the continuing or surviving corporation),
except as otherwise provided in this Section 11(a) and in Section 7(e)
hereof, 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 Common Stock or
capital stock, as the case may be, issuable on such date, shall be
proportionately adjusted so that the holder of any Right exercised after such
time shall be entitled to receive the aggregate number and kind of shares of
Common Stock or capital stock, as the case may be, which, if such Right had
been exercised immediately prior to such date and at a time when the Common
Stock transfer books of the Company were open, such holder would have owned
upon such exercise and been entitled to receive by virtue of such dividend,
subdivision, combination or reclassification. If an event occurs which would
require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), the
adjustment provided for in this Section 11(a)(i) shall be in addition to, and
shall be made prior to any adjustment required pursuant to Section 11(a)(ii).
(ii) In the event 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 entity organized,
appointed or established by the Company for or pursuant to the terms of any
such plan), alone or together with its Affiliates and Associates, shall
become an Acquiring Person, then, except as provided below and in Section
7(e) hereof, the holder of any Right which has not theretofore been exercised
shall thereafter be entitled to receive, upon exercise of such Right at the
then current Purchase Price in accordance with the terms of this Agreement,
such number of shares of Class A Common Stock or Class B Common Stock of the
Company, as applicable, equal to the result obtained by (1) multiplying the
then current Purchase Price by the then number of shares of Class A Common
Stock or Class B Common Stock for which a Right is then exercisable and (2)
dividing that product by 50% of the current market price (determined pursuant
to Section 11(d) hereof) per share of Common Stock as of the Stock
Acquisition Date in question; PROVIDED, HOWEVER, that if the transaction that
would otherwise give rise to the foregoing adjustment also constitutes an
event described in Section 13(a), then only the provisions of Section 13
shall apply and no adjustment shall be made pursuant to this Section
11(a)(ii).
(iii) In lieu of issuing shares of Common Stock in
accordance with Section 11(a)(ii) hereof, the Company's Board of Directors
may, if the Board of Directors determines in its
11
discretion (as evidenced by the vote of a majority of the Directors then in
office) that such action is necessary or appropriate and not contrary to the
interests of holders of Rights, elect to issue or pay, upon the exercise of
the Rights, cash (including an offset against the Purchase Price), property,
shares of Common Stock, other securities or any combination thereof having an
aggregate value equal to the value of the shares of Common Stock which
otherwise would have been issuable pursuant to Section 11(a)(ii), which value
shall be determined by a nationally recognized investment banking firm
selected by the Company's Board of Directors (as determined by the Board in
its discretion by the vote of a majority of the Directors then in office).
For purposes of the preceding sentence, the value of any preferred stock
which the Board of Directors determines to be a "COMMON STOCK EQUIVALENT"
shall be deemed to have the same value as the Common Stock. Any such election
by the Board of Directors must be made and publicly announced within 90 days
of the relevant Stock Acquisition Date. Following the occurrence of an event
described in Section 11(a)(ii), the Board of Directors may (as determined in
its discretion by the vote of a majority of the Directors then in office)
suspend the exercisability of the Rights for a period of up to 90 days
following the occurrence of such event to the extent that the Board of
Directors has not determined whether to exercise its rights of election under
this paragraph (a)(iii). In the event of any such suspension, the Company
shall issue a public announcement stating that the exercisability of the
Rights has been temporarily suspended, as well as a public announcement at
such time as the suspension is no longer in effect.
(b) In case the Company shall fix a record date for the
issuance of rights, options or warrants to all holders of Common Stock
entitling them to subscribe for or purchase (for a period expiring within
forty-five (45) calendar days after such record date) Common Stock (or
securities convertible into Common Stock) at a price per share of Common
Stock (or having a conversion price per share of Common Stock, if a security
convertible into Common Stock) less than the current market price (as
determined pursuant to Section 11(d) hereof) per share of Common Stock on
such record date, the Purchase Price to be in effect after such record date
shall be determined by multiplying the Purchase Price in effect immediately
prior to such record date by a fraction, the numerator of which shall be the
number of shares of Common Stock outstanding on such record date, plus the
number of shares of Common Stock which the aggregate offering price of the
total number of shares of Common Stock so offered for subscription or
purchase (and/or the aggregate initial conversion price of the convertible
securities so to be offered) would purchase at such current market price and
the denominator of which shall be the number of shares of Common Stock
outstanding on such record date, plus the number of additional shares of
Common Stock to be offered for subscription or purchase (or into which the
convertible securities so to be offered are initially convertible). In case
such subscription price may be paid in a consideration part or all of which
shall be in a form other than cash, the value of such consideration shall be
as determined in good faith by the Board of Directors (as evidenced by the
vote of a majority of the Directors then in office) whose determination shall
be described in a statement filed with the Rights Agent and shall be binding
on the Rights Agent. Shares of Common Stock owned by or held for the account
of the Company shall not be deemed outstanding for the purpose of any such
computation. Such adjustment shall be made successively whenever such a
record date is fixed; and in the event that such rights or warrants are not
so issued, the Purchase Price shall be adjusted to be the Purchase Price
which would then be in effect if such record date had not been fixed.
(c) In case the Company shall fix a record date for a
distribution to all holders of Common Stock (including any such distribution
made in connection with a consolidation or merger in
12
which the Company is the continuing corporation) of evidences of
indebtedness, cash (other than a regular quarterly cash dividend out of the
earnings or retained earnings of the Company), assets (other than a dividend
payable in Common Stock, but including any dividend payable in stock other
than Common Stock) or subscription rights or warrants (excluding those
referred to in Section 11(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, the numerator of which
shall be the current market price (as determined pursuant to Section 11(d)
hereof) per share of Common Stock on such record date, less the fair market
value, as determined in good faith by the Board of Directors (as evidenced by
the vote of a majority of the Directors then in office) whose determination
shall be described in a statement filed with the Rights Agent, of the portion
of the cash, assets or evidences of indebtedness so to be distributed or of
such subscription rights or warrants applicable to a share of Common Stock
and the denominator of which shall be such current market price (as
determined pursuant to Section 11(d) hereof) per share of Common Stock. Such
adjustments shall be made successively whenever such a record date is fixed;
and in the event that such distribution is not so made, the Purchase Price
shall be adjusted to be the Purchase Price which would have been in effect if
such record date had not been fixed.
(d) For the purpose of any computation hereunder, the
"CURRENT MARKET PRICE" per share of Common Stock on any date shall be deemed
to be the average of the daily closing prices per share of such Common Stock
for the thirty (30) consecutive Trading Days (as such term is hereinafter
defined) immediately prior to such date; PROVIDED, HOWEVER, that in the event
that the current market price per share of the Common Stock is determined
during a period following the announcement by the issuer of such Common Stock
of (A) a dividend or distribution on such Common Stock payable in shares of
such Common Stock or securities convertible into shares of such Common Stock
(other than the Rights), or (B) any subdivision, combination or
reclassification of such Common Stock, and prior to the expiration of the
thirty (30) Trading Day period after the ex-dividend date for such dividend
or distribution, or the record date for such subdivision, combination or
reclassification, then, and in each such case, the "current market price"
shall be properly adjusted to take into account ex-dividend trading. The
closing price for each day shall be the last sale price, regular way, or, in
case no such sale takes place on such 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 the shares of
Common Stock are not 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 the shares of Common Stock are listed or admitted to
trading or, if the shares of Common Stock are not listed or admitted to
trading on any national securities exchange, the last quoted sale price or,
if not so quoted, the average of the high bid and low asked prices in the
over-the-counter market, as reported by the National Association of
Securities Dealers, Inc. Automated Quotation System ("NASDAQ") National
Market or such other system then in use, or, if on any such date the shares
of Common Stock are not quoted by any such organization, the average of the
closing bid and asked prices as furnished by a professional market maker
making a market in the Common Stock selected by the Board. If on any such
date no market maker is making a market in the Common Stock, the fair value
of such shares on such date, as determined in good faith by the Board of
Directors (as evidenced by the vote of a majority of the Directors then in
office), shall be used. The term "TRADING DAY" shall mean a day on which the
principal national securities exchange on which the shares of Common Stock
are listed or admitted to
13
trading is open for the transaction of business or, if the shares of Common
Stock are not listed or admitted to trading on any national securities
exchange, a Business Day. If the Common Stock is not publicly held or not so
listed or traded, "current market price" per share shall mean the fair value
per share as determined in good faith by the Board of Directors (as evidenced
by the vote of a majority of the Directors then in office) whose
determination shall be described in a statement filed with the Rights Agent
and shall be conclusive for all purposes.
(e) Anything herein to the contrary notwithstanding, no
adjustment in the Purchase Price shall be required unless such adjustment
would require an increase or decrease of at least one percent (1%) in the
Purchase Price; PROVIDED, HOWEVER, that any adjustments which by reason of
this Section 11(e) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment. All calculations under this
Section 11 shall be made to the nearest cent or to the nearest ten-thousandth
of a share of Common Stock, as the case may be. Notwithstanding the first
sentence of this Section 11(e), any adjustment required by this Section 11
shall be made no later than the earlier of (i) three (3) years from the date
of the transaction which mandates such adjustment, or (ii) the Expiration
Date.
(f) If as a result of an adjustment made pursuant to
Section 11(a) or Section 13, the holder of any Right thereafter exercised
shall become entitled to receive any shares of capital stock other than
Common Stock, 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
manner and on terms as nearly equivalent as practicable to the provisions
contained in Sections 11(a), (b), (c), (e), (g), (h), (i), (j), (k) and (m),
and the provisions of Sections 7, 9, 10, 13 and 14 hereof with respect to the
Common Stock shall apply on like terms to any such other shares.
(g) All Rights originally issued by the Company subsequent
to any adjustment made to the Purchase Price hereunder shall evidence the
right to purchase, at the adjusted Purchase Price, the number of shares of
Common Stock purchasable from time to time hereunder upon exercise of the
Rights, all subject to further adjustment as provided herein.
(h) Unless the Company shall have exercised its election as
provided in Section 11(i), upon each adjustment of the Purchase Price as a
result of the calculations made in Sections 11(b) and (c), each Right
outstanding immediately prior to the making of such adjustment shall
thereafter evidence the right to purchase, at the adjusted Purchase Price,
that number of shares (calculated to the nearest ten-thousandth) of Common
Stock obtained by (i) multiplying (x) the number of shares covered by the
Right immediately prior to this adjustment, by (y) the Purchase Price in
effect immediately prior to such adjustment of the Purchase Price, and (ii)
dividing the product so obtained by the Purchase Price in effect immediately
after such adjustment of the Purchase Price.
(i) The Company may elect on or after the date of any
adjustment of the Purchase Price to adjust the number of Rights, in
substitution for any adjustment in the number of shares of Common Stock
purchasable upon the exercise of such Rights. Each of the Rights outstanding
after the adjustment in the number of Rights shall be exercisable for the
number of shares of Common Stock for which a Right was exercisable
immediately prior to such adjustment. Each Right held of record prior to such
adjustment of the number of Rights shall become that number of Rights
(calculated to the nearest
14
ten-thousandth) obtained by dividing the Purchase Price in effect immediately
prior to the adjustment of the Purchase Price by the Purchase Price in effect
immediately after adjustment of the Purchase Price. The Company shall make a
public announcement of its election to adjust the number of Rights,
indicating the record date for the adjustment, and, if known at the time, the
amount of the adjustment to be made. This record date may be the date on
which the Purchase Price is adjusted or any day thereafter, but, if the
Rights Certificates have been issued, shall be at least ten (10) days later
than the date of the public announcement. If Rights Certificates have been
issued, upon each adjustment of the number of Rights pursuant to this Section
11(i), the Company shall, as promptly as practicable, cause to be distributed
to holders of record of Rights Certificates on such record date Rights
Certificates evidencing, subject to Section 14 hereof, the additional Rights
to which such holders shall be entitled as a result of such adjustment, or,
at the option of the Company, shall cause to be distributed to such holders
of record in substitution and replacement for the Rights Certificates held by
such holders prior to the date of adjustment, and upon surrender thereof, if
required by the Company, new Rights Certificates evidencing all the Rights to
which such holders shall be entitled after such adjustment. Rights
Certificates so to be distributed shall be issued, executed and countersigned
in the manner provided for herein (and may bear, at the option of the
Company, the adjusted Purchase Price) and shall be registered in the names of
the holders of record of Rights Certificates on the record date specified in
the public announcement.
(j) Irrespective of any adjustment or change in the
Purchase Price or the number of shares of Common Stock issuable upon the
exercise of the Rights, the Rights Certificates theretofore and thereafter
issued may continue to express the Purchase Price per share and the number of
shares which were expressed in the initial Rights Certificates issued
hereunder.
(k) Before taking any action that would cause an adjustment
reducing the Purchase Price below the then par value, if any, of the shares
of Common Stock issuable upon exercise of the Rights, the Company shall take
any corporate action which may, in the opinion of its counsel, be necessary
in order that the Company may validly and legally issue fully paid and
nonassessable shares of Common Stock at such adjusted Purchase Price.
(l) In any case in which this Section 11 shall require that
an adjustment in the Purchase Price be made effective as of a record date for
a specified event, the Company may elect to defer until the occurrence of
such event the issuance to the holder of any Right exercised after such
record date the shares of Common Stock and other capital stock or securities
of the Company, if any, issuable upon such exercise over and above the shares
of Common Stock and other capital stock or securities of the Company, if any,
issuable upon such exercise on the basis of the Purchase Price in effect
prior to such adjustment; PROVIDED, HOWEVER, that the Company shall deliver
to such holder a due xxxx or other appropriate instrument evidencing such
holder's right to receive such additional shares upon the occurrence of the
event requiring such adjustment.
(m) Anything in this Section 11 to the contrary
notwithstanding, the Company shall be entitled to make such reductions in the
Purchase Price, in addition to those adjustments expressly required by this
Section 11, as and to the extent that the Board of Directors shall determine
in its discretion (as evidenced by the vote of a majority of the Directors
then in office) to be advisable in order that any (i) consolidation or
subdivision of the Common Stock, (ii) issuance wholly for cash of any shares
of Common Stock at less than the current market price, (iii) issuance wholly
for cash of shares of
15
Common Stock or securities which by their terms are convertible into or
exchangeable for shares of Common Stock, (iv) stock dividends or (v) issuance
of rights, options or warrants referred to in this Section 11, hereafter made
by the Company to holders of its Common Stock shall not be taxable to such
stockholders.
(n) The Company covenants and agrees that it shall not, at
any time after the Distribution Date, (i) consolidate with, (ii) merge with
or into, or (iii) sell or transfer (or permit any Subsidiary to sell or
transfer), in one or more transactions, assets or earning power aggregating
more than 50% of the assets or earning power of the Company and its
Subsidiaries (taken as a whole) to, any other Person if at the time of or
immediately after such consolidation, merger or sale (x) there are any
rights, warrants or other instruments or securities outstanding or agreements
in effect which would substantially diminish or otherwise eliminate the
benefits intended to be afforded by the Rights or (y) there are not
sufficient unissued, unreserved shares of Common Stock of the Company to
permit the exercise in full of the Rights (except to the extent cash,
property, or other securities have been substituted pursuant to Section
11(a)(iii)).
(o) The Company covenants and agrees that, after the Stock
Acquisition Date, it will not, except as permitted by Section 23, 24 or 27
hereof, take (or permit any Subsidiary to take) any action the purpose or
effect of which is to diminish substantially or otherwise eliminate the
benefits intended to be afforded by the Rights.
(p) The exercise of Rights under Section 11(a) (ii) shall
only result in the loss of rights under Section 11(a) (ii) with respect to
Rights so exercised and shall not otherwise affect the rights represented by
unexercised Rights under this Rights Agreement, including the rights
represented by Section 13.
SECTION 12. CERTIFICATE OF ADJUSTED PURCHASE PRICE OR NUMBER OF
SHARES. Whenever an adjustment is made as provided in Sections 11 and 13
hereof, the Company shall (a) promptly prepare a certificate setting forth
such adjustment and a brief statement of the facts accounting for such
adjustment, (b) promptly file with the Rights Agent and with each transfer
agent for the Common Stock a copy of such certificate, and (c) mail a brief
summary thereof to each holder of a Rights Certificate in accordance with
Section 26 hereof. The Rights Agent shall be fully protected in relying on
any such certificate and on any adjustment therein contained.
SECTION 13. CONSOLIDATION, MERGER OR SALE OR TRANSFER OF ASSETS OR
EARNING POWER.
(a) In the event that, following the Stock Acquisition
Date, directly or indirectly, (x) the Company shall consolidate with, or
merge with and into, any other Person, and the Company shall not be the
continuing or surviving corporation of such consolidation or merger, (y) any
Person shall consolidate with, or merge with or into, the Company, and the
Company shall be the continuing or surviving corporation of such
consolidation or merger and, in connection with such consolidation or merger,
all or part of the outstanding shares of Common Stock shall be changed into
or exchanged for stock or other securities of any other Person or cash or any
other property, or (z) the Company shall sell or otherwise transfer (or one
or more of its Subsidiaries shall sell or otherwise transfer), in one or more
transactions, assets or earning power aggregating more than 50% of the assets
or earning power of the
16
Company and its Subsidiaries (taken as a whole) to any Person or Persons
(other than the Company or any Subsidiary of the Company), then, and in each
such case, proper provision shall be made so that: (i) following the
Distribution Date, each holder of a Right, shall thereafter have the right to
receive, upon the exercise thereof at the then current Purchase Price in
accordance with the terms of this Agreement, such number of validly
authorized and issued, fully paid, non-assessable and freely tradeable shares
of Common Stock of the Principal Party (as hereinafter defined), free and
clear of liens, rights of call or first refusal, encumbrances or other
adverse claims, as shall be equal to the result obtained by (1) multiplying
the then current Purchase Price by the then number of shares of Common Stock
for which a Right is then exercisable (without giving effect to the
occurrence, if any, of any transaction described in Section 11(a)(ii) hereof)
and (2) dividing that product by 50% of the current market price (determined
pursuant to Section 11(d) hereof) per share of the Common Stock of such
Principal Party on the date of consummation of such consolidation, merger,
sale or transfer; (ii) such Principal Party 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;
(iii) the term "Company" shall thereafter be deemed to refer to such
Principal Party, it being specifically intended that the provisions of
Section 11 hereof shall apply to such Principal Party; and (iv) such
Principal Party shall take such steps (including, but not limited to, the
reservation of a sufficient number of shares of its Common Stock) in
connection with the consummation of any such transaction as may be necessary
to assure that the provisions hereof shall thereafter be applicable, as
nearly as reasonably may be possible, in relation to its shares of Common
Stock thereafter deliverable upon the exercise of the Rights.
(b) "PRINCIPAL PARTY" shall mean:
(i) in the case of any transaction described
in (x) or (y) of the first sentence of Section 13(a), the Person that is the
issuer of any securities into which shares of Common Stock of the Company are
converted in such merger or consolidation, and if no securities are so
issued, the Person that is the other party to such merger or consolidation;
and
(ii) in the case of any transaction described
in (z) of the first sentence in Section 13(a), the Person that is the party
receiving the greatest portion of the assets or earning power transferred
pursuant to such transaction or transactions;
PROVIDED, HOWEVER, that in any such case, (1) if the Common Stock of such
Person is not at such time and has not been continuously over the preceding
twelve (12) month period registered under Section 12 of the Exchange Act, and
such Person is a direct or indirect Subsidiary of another Person, the Common
Stock of which is and has been so registered, "Principal Party" shall refer
to such other Person; (2) in case such Person is a Subsidiary, directly or
indirectly, of more than one Person, the Common Stocks of two or more of
which are and have been so registered, "Principal Party" shall refer to
whichever of such Persons is the issuer of the Common Stock having the
greatest aggregate market value; and (3) in case such Person is owned,
directly or indirectly, by a joint venture formed by two or more Persons that
are not owned, directly or indirectly, by the same Person, the rules set
forth in (1) and (2) above shall apply to each of the chains of ownership
having an interest in such joint venture as if such party were a "Subsidiary"
of both or all of such joint venturers and the Principal Parties in each such
chain shall bear the obligations set forth in this Section 13 in the same
ratio as their direct or indirect interests in such Person bear to the total
of such interests.
17
(c) The Company shall not consummate any such
consolidation, merger, sale or transfer unless the Principal Party shall have
a sufficient number of authorized shares of its Common Stock which have not
been issued or reserved for issuance to permit the exercise in full of the
Rights in accordance with this Section 13 and unless prior thereto the
Company and such Principal Party shall have executed and delivered to the
Rights Agent a supplemental agreement providing for the terms set forth in
paragraphs (a) and (b) of this Section 13 and further providing that, as soon
as practicable after the date of any consolidation, merger or sale of assets
mentioned in paragraph (a) of this Section 13, the Principal Party will:
(i) prepare and file a registration statement
under the Act, with respect to the Rights and the securities purchasable upon
exercise of the Rights on an appropriate form, and will use its best efforts
to cause such registration statement to (A) become effective as soon as
practicable after such filing and (B) remain effective (with a prospectus at
all times meeting the requirements of the Act) until the Expiration Date;
(ii) use its best efforts to qualify or
register the Rights and the securities purchasable upon exercise of the
Rights under the blue sky laws of such jurisdictions as may be necessary or
appropriate; and
(iii) will deliver to holders of the Rights
historical financial statements for the Principal Party and each of its
Affiliates which comply in all material respects with the requirements for
registration on Form 10 under the Exchange Act.
The provisions of this Section 13 shall similarly apply to
successive mergers, consolidations, and sales or other transfers. If an
adjustment under Section 13(a) occurs at any time after an adjustment under
Section 11(a)(ii), the Rights that have not theretofore been exercised will
thereafter become exercisable in the manner described in Section 13(a).
SECTION 14. FRACTIONAL RIGHTS AND FRACTIONAL SHARES.
(a) The Company shall not be required to issue fractions of
Rights or to distribute Rights Certificates which evidence fractional Rights.
In lieu of such fractional Rights, there shall be paid to the registered
holders of the Rights Certificates with regard to which such fractional
Rights would otherwise be issuable, an amount in cash equal to the same
fraction of the current market value of a whole Right. For purposes of this
Section 14(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 The closing
price of the Rights for any day shall be the last sale price, regular way,
or, in case no such sale takes place on such 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 the Rights are not 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 the Rights are listed or admitted to trading, or if the
Rights are not listed or admitted to trading on any national securities
exchange, the last quoted sale price
18
or, if not so quoted, the average of the high bid and low asked prices in the
over-the-counter market, as reported by NASDAQ or such other system then in
use or, if on any such date the Rights are not quoted by any such
organization, the average of the closing bid and asked prices as furnished by
a professional market maker making a market in the Rights selected by the
Board of Directors (as evidenced by the vote of a majority of the Directors
then in office). If on any such date no such market maker is making a market
in the Rights, the fair value of the Rights on such date as determined in
good faith by the Board of Directors (as evidenced by the vote of a majority
of the Directors then in office) shall be used.
(b) The Company shall not be required to issue fractions of
shares of Common Stock upon exercise of the Rights or to distribute
certificates which evidence fractional shares of Common Stock. In lieu of
fractional shares of Common Stock, the Company may pay to the registered
holders of Rights Certificates at the time such Rights are exercised as
herein provided an amount in cash equal to the same fraction of the current
market value of a share of Common Stock. For purposes of this Section 14(b),
the current market value of a share of Common Stock shall be the closing sale
price of a share of Common Stock (as determined pursuant to Section 11(d)
hereof) for the Trading Day immediately prior to the date of such exercise.
(c) Following the occurrence of an Acquisition Event, the
Company shall not be required to issue fractions of shares of Common Stock
upon exercise of the Rights or to distribute certificates which evidence
fractional shares of Common Stock. In lieu of fractional shares of Common
Stock, the Company may pay to the registered holders of Rights Certificates
at the time such Rights are exercised as herein provided an amount in cash
equal to the same fraction of the current market value of one (1) share of
Common Stock. For purposes of this Section 14(c), the current market value of
one (1) share of Common Stock shall be the closing sale price of a share of
Common Stock (as determined pursuant to Section 11(d) hereof) for the Trading
Day immediately prior to the date of such exercise.
(d) The holder of a Right by the acceptance of the Rights
expressly waives such holder's right to receive any fractional Rights or any
fractional shares upon exercise of a Right, except as permitted by this
Section 14.
SECTION 15. RIGHTS OF ACTION. All rights of action in respect of
this Agreement are vested in the respective registered holders of the Rights
Certificates (and, prior to the Distribution Date, the registered holders of
the Common Stock); and any registered holder of any Rights Certificate (or,
prior to the Distribution Date, of the Common Stock), without the consent of
the Rights Agent or of the holder of any other Rights Certificate (or, prior
to the Distribution Date, of the Common Stock), may in such holder's own
behalf and for such holder's own benefit, enforce, and may institute and
maintain any suit, action or proceeding against the Company to enforce, or
otherwise act in respect of, such holder's right to exercise the Rights
evidenced by such Rights Certificate in the manner provided in such Rights
Certificate and in this Agreement. Without limiting the foregoing or any
remedies available to the holders of Rights, it is specifically acknowledged
that the holders of Rights would not have an adequate remedy at law for any
breach of this Agreement and shall be entitled to specific performance of the
obligations hereunder and injunctive relief against actual or threatened
violations of the obligations hereunder of any Person subject to this
Agreement. Holders of Rights shall be entitled to recover the reasonable
costs and expenses, including attorneys' fees, incurred by them in any action
to enforce the provisions of this Agreement.
19
SECTION 16. AGREEMENT OF RIGHTS HOLDERS. Every holder of a Right by
accepting the same consents and agrees with the Company and the Rights Agent
and with every other holder of a Right that:
(a) prior to the Distribution Date, the Rights will be
transferable only in connection with the transfer of Common Stock;
(b) after the Distribution Date, the Rights Certificates
are transferable only on the registry books of the Rights Agent if
surrendered at the office or offices of the Rights Agent designated for such
purposes, duly endorsed or accompanied by a proper instrument of transfer; and
(c) the Company and the Rights Agent may deem and treat the
person in whose name a Rights Certificate (or, prior to the Distribution
Date, the associated Common Stock certificate) is registered as the absolute
owner thereof and of the Rights evidenced thereby (notwithstanding any
notations of ownership or writing on the Rights Certificates or the
associated Common Stock certificate made by anyone other than the Company or
the Rights Agent) for all purposes whatsoever, and neither the Company nor
the Rights Agent shall be affected by any notice to the contrary.
SECTION 17. RIGHTS CERTIFICATE HOLDER NOT DEEMED A STOCKHOLDER. No
holder, as such, of any Rights Certificate shall be entitled to vote, receive
dividends or be deemed for any purpose the holder of the shares of Common
Stock or any other securities of the Company which may at any time be
issuable on the exercise of the Rights represented thereby, nor shall
anything contained herein or in any Rights Certificate be construed to confer
upon the holder of any Rights Certificate, as such, any of the rights of a
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
Section 25 hereof), or to receive dividends or subscription rights, or
otherwise, until the Right or Rights evidenced by such Rights Certificate
shall have been exercised in accordance with the provisions hereof.
SECTION 18. CONCERNING THE RIGHTS AGENT.
(a) The Company agrees to pay to the Rights Agent
reasonable compensation for all services rendered by it hereunder and, from
time to time, on demand of the Rights Agent, its reasonable expenses and
counsel fees and disbursements 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
arising therefrom, directly or indirectly.
(b) The Rights Agent shall be protected and shall incur no
liability for or in respect of any action taken, suffered or omitted by it in
connection with its administration of this Agreement in reliance upon any
Rights Certificate or certificate for Common Stock or for other securities of
the Company, instrument of assignment or transfer, power of attorney,
endorsement, affidavit, letter, notice,
20
direction, consent, certificate, statement, or other paper or document
believed by it to be genuine and to be signed, executed and, where necessary,
verified or acknowledged, by the proper Person or Persons.
SECTION 19. MERGER OR CONSOLIDATION OR CHANGE OF NAME OF RIGHTS
AGENT.
(a) Any corporation into which the Rights Agent or any
successor Rights Agent may be merged or with which it may be consolidated, or
any corporation resulting from any merger or consolidation to which the
Rights Agent or any successor Rights Agent shall be a party, or any
corporation succeeding to the corporate trust 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, HOWEVER, that such
corporation would be eligible for appointment as a successor Rights Agent
under the provisions of Section 21 hereof. In case at the time such successor
Rights Agent shall succeed to the agency created by this Agreement, any of
the Rights Certificates shall have been countersigned but not delivered, any
such successor Rights Agent may adopt the countersignature of a predecessor
Rights Agent and deliver such Rights Certificates so countersigned; and in
case at that time any of the Rights Certificates shall not have been
countersigned, any successor Rights Agent may countersign such Rights
Certificates either in the name of the predecessor or in the name of the
successor Rights Agent; and in all such cases such Rights Certificates shall
have the full force provided in the Rights Certificates and in this Agreement.
(b) In case at any time the name of the Rights Agent shall
be changed and at such time any of the Rights Certificates shall have been
countersigned but not delivered, the Rights Agent may adopt the
countersignature under its prior name and deliver Rights Certificates so
countersigned; and in case at that time any of the Rights Certificates shall
not have been countersigned, the Rights Agent may countersign such Rights
Certificates either in its prior name or in its changed name; and in all such
cases such Rights Certificates shall have the full force provided in the
Rights Certificates and in this Agreement.
SECTION 20. DUTIES OF RIGHTS AGENT. The Rights Agent undertakes the
duties and obligations imposed by this Agreement upon the following terms and
conditions, by all of which the Company and the holders of Rights
Certificates, by their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel
selected by it (who may be legal counsel for the Company), and the opinion of
such counsel shall be full and complete authorization and protection to the
Rights Agent as to any action taken or omitted by it in good faith and in
accordance with such opinion.
(b) Whenever in the performance of its duties under this
Agreement the Rights Agent shall deem it necessary or desirable that any fact
or matter (including, without limitation, the identity of any Acquiring
Person and the determination of "CURRENT MARKET PRICE") be proved or
established by the Company prior to taking or suffering any action hereunder,
such fact or matter (unless other evidence in respect thereof be herein
specifically prescribed) may be deemed to be conclusively proved and
established by a certificate signed by the Chairman of the Board, the Vice
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
21
authorization to the Rights Agent for any action taken or suffered in good
faith by it under the provisions of this Agreement in reliance upon such
certificate.
(c) The Rights Agent shall be liable hereunder only for its
own negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason
of any of the statements of fact or recitals contained in this Agreement or
in the Rights Certificates or be required to verify the same (except as to
its countersignature on such Rights Certificates), but all such statements
and recitals are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be under any responsibility
in respect of the validity of this Agreement or the execution and delivery
hereof (except the due execution hereof by the Rights Agent) or in respect of
the validity or execution of any Rights Certificate (except its
countersignature thereof); nor shall it be responsible for any breach by the
Company of any covenant or condition contained in this Agreement or in any
Rights Certificate; nor shall it be responsible for any adjustment required
under the provisions of Sections 11 or 13 hereof or responsible for the
manner, method or amount of any such adjustment or the ascertaining of the
existence of facts that would require any such adjustment (except with
respect to the exercise of Rights evidenced by Right Certificates after
actual notice of any such adjustment); nor shall it by any act hereunder be
deemed to make any representation or warranty as to the authorization or
reservation of any shares of Common Stock to be issued pursuant to this
Agreement or any Rights Certificate or as to whether any shares of Common
Stock will, when so issued, be validly authorized and issued, fully paid and
nonassessable.
(f) The Company agrees that it will perform, execute,
acknowledge and deliver or cause to be performed, executed, acknowledged and
delivered all such further and other acts, instruments and assurances as may
reasonably be required by the Rights Agent for the carrying out or performing
by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to
accept instructions with respect to the performance of its duties hereunder
from the Chairman of the Board, any Vice Chairman of the Board, the Chief
Executive Officer, the President, any Vice President, the Secretary, any
Assistant Secretary, the Treasurer or any Assistant Treasurer of the Company,
and to apply to such officers for advice or instructions in connection with
its duties, and it shall not be liable for any action taken or suffered to be
taken by it in good faith in accordance with instructions of any such officer.
(h) 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 or for any
other legal entity.
(i) The Rights Agent may execute and exercise any of the
rights or powers hereby vested in it or perform any duty hereunder either
itself or by or through its attorneys or agents, and the
22
Rights Agent shall not be answerable or accountable for any act, or omission,
default, neglect or misconduct of any such attorneys or agents or for any
loss to the Company resulting from any such act, or omission, default,
neglect or misconduct; PROVIDED, HOWEVER, reasonable care was exercised in
the selection and continued employment thereof.
(j) No provision of this Agreement shall require the Rights
Agent to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder or in the
exercise of its rights if there shall be reasonable grounds for believing
that repayment of such funds or adequate indemnification against such risk or
liability is not reasonably assured to it.
SECTION 21. CHANGE OF RIGHTS AGENT. The Rights Agent or any
successor Rights Agent may resign and be discharged from its duties under
this Agreement upon thirty (30) days' notice in writing mailed to the
Company, and to each transfer agent of the Common Stock, by registered or
certified mail, and to the holders of the Rights Certificates by first-class
mail. The Company may remove the Rights Agent or any successor Rights Agent
upon thirty (30) days' notice in writing, mailed to the Rights Agent or
successor Rights Agent, as the case may be, and to each transfer agent of the
Common Stock, by registered or certified mail, and to the holders of the
Rights Certificates by first-class mail. If the Rights Agent shall resign or
be removed or shall otherwise become incapable of acting, the Company shall
appoint a successor to the Rights Agent. If the Company shall fail to make
such appointment within a period of thirty (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 holder of
a Rights Certificate (who shall, with such notice, submit his Rights
Certificate for inspection by the Company), then the registered holder of any
Rights Certificate may apply to any court of competent jurisdiction for the
appointment of a new Rights Agent. Any successor Rights Agent, whether
appointed by the Company or by such a court, shall be a corporation organized
and doing business under the laws of the United States or of the State of
Minnesota (or of any other state of the United States so long as such
corporation is authorized to do business as a banking institution in the
State of Minnesota), in good standing, having a principal office in the State
of Minnesota, 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 $250,000,000. 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 of the Common Stock, and
mail a notice thereof in writing to the registered holders of the Rights
Certificates. Failure to give any notice provided for in this Section 21,
however, or any defect therein, shall not affect the legality or validity of
the resignation or removal of the Rights Agent or the appointment of the
successor Rights Agent, as the case may be.
SECTION 22. ISSUANCE OF NEW RIGHTS 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 the Board to reflect any adjustment or
change in the Purchase Price per share and the number or kind or class of
shares or other securities or
23
property purchasable under the Rights Certificates made in accordance with
the provisions of this Agreement. In addition, in connection with the
issuance or sale of shares of Common Stock following the Distribution Date
and prior to the Final Expiration Date, the Company (a) will, with respect to
shares of Common Stock so issued or sold pursuant to the exercise of stock
options or under any employee plan or arrangement, granted or awarded as of
the Distribution Date, or upon the exercise, conversion, or exchange of
securities issued by the Company, and (b) may, in any other case, if deemed
necessary or appropriate by the Board of Directors of the Company, issue
Rights Certificates representing the appropriate number of Rights in
connection with such issuance or sale; provided, however, that (y) no such
Rights Certificate will be issued if, and to the extent that, the Company is
advised by counsel that such issuance would create a significant risk of
material adverse tax consequences to the Company or the Person to whom such
Rights Certificate would be issued, and (z) no such Rights Certificate will
be issued if, and to the extent that, appropriate adjustment has otherwise
been made in lieu of the issuance of such Rights Certificate.
SECTION 23. REDEMPTION AND TERMINATION.
(a) (i) Subject to the provisions of Section 24 and 27, the
Board of Directors may, at its option, at any time prior to 5:00 P.M.,
Minneapolis, Minnesota time, on the earlier of (i) the date of the related
acquisition pursuant to which a Person has become an Acquiring Person, or
(ii) the Final Expiration Date, redeem all but not less than all the then
outstanding Rights at a redemption price of $.001 per Right, appropriately
adjusted to reflect any stock split, stock dividend or similar transaction
occurring after the date hereof (such redemption price being hereinafter
referred to as the "REDEMPTION PRICE").
(ii) In addition, the Board of Directors may redeem
all, but not less than all, of the then outstanding Rights at the Redemption
Price following the date of the related acquisition pursuant to which a
Person has become an Acquiring Person, but prior to any event described in
Section 13(a) either (x) if each of the following shall have occurred and
remain in effect: (1) a Person who is an Acquiring Person shall have
transferred or otherwise disposed of a number of shares of Common Stock in a
transaction, or series of transactions, such that such Person is thereafter a
Beneficial Owner of voting securities have 5% or less of the voting power of
the Company and (2) there are no other Persons, immediately following the
occurrence of the event described in clause (1), who are Acquiring Persons or
(y) in connection with any event specified in Section 13(a), not involving an
Acquiring Person or an Affiliate or Associate of an Acquiring Person.
(b) In the case of a redemption permitted under Section
23(a), immediately upon the action of the Board of Directors of the Company
ordering the redemption of the Rights, evidence of which shall have been
filed with the Rights Agent and without any further action and without any
notice, the right to exercise the Rights will terminate and the only right
thereafter of the holders of Rights shall be to receive the Redemption Price.
Within ten Business Days after the action of the Board of Directors ordering
any redemption of the Rights, the Company shall give notice of such
redemption to the Rights Agent and the holders of the then outstanding Rights
by mailing such notice to the Rights Agent and 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 Agent
for the Common Stock. Any notice which is mailed in the manner herein
provided shall be deemed given, whether or not the holder
24
receives the notice. Each such notice of redemption will state the method by
which the payment of the Redemption Price will be made.
SECTION 24. EXCHANGE.
(a) The Board of Directors of the Company may, at its
option, at any time after any Person becomes an Acquiring Person, exchange
all or part of the then outstanding and exercisable Class A Rights and Class
B Rights (which shall not include such Rights that have become void pursuant
to the provisions of Section 7(e) hereof) for shares of Class A Common Stock
and Class B Common Stock, respectively, at exchange ratios of one share of
Class A Common Stock per Class A Right (the "CLASS A EXCHANGE RATIO") and one
share of Class B Common Stock per Class B Right (the "CLASS B EXCHANGE
RATIO"), each appropriately adjusted to reflect any stock split, stock
dividend or similar transaction occurring after the date hereof.
Notwithstanding the foregoing, the Board of Directors shall not be empowered
to effect such exchange at any time after any Person (other than the Company,
any Subsidiary of the Company, any employee benefit plan of the Company or
any such Subsidiary, or any entity holding Common Stock for or pursuant to
the terms of any such plan or any trust agreement entered into by the Company
to secure benefits payable under any employee benefit plan of the Company or
any Subsidiary of the Company), together with all Affiliates and Associates
of such Person, becomes the Beneficial Owner of shares of voting securities
representing 50% or more of the then voting power of the Company.
(b) Immediately upon the action of the Board of Directors
of the Company ordering the exchange of any Rights pursuant to subsection (a)
of this Section 24 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 that number of shares of Class
A Common Stock equal to the number of Class A Rights held by such holder
multiplied by the Class A Exchange Ratio and that number of shares of Class B
Common Stock equal to the number of Class B Rights held by such holder
multiplied by the Class B Exchange Ratio. The Company shall promptly give
public notice of any such exchange; PROVIDED, HOWEVER, that the failure to
give, or any defect in, such notice shall not affect the validity of such
exchange. The Company shall promptly mail a notice of any such exchange to
all of the holders of the then outstanding Rights at their last address 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 exchange will state the
method by which the exchange of the shares of Common Stock for Rights will be
effected and, in the event of any partial exchange, the number and kind of
Rights which will be exchanged. Any partial exchange shall be effected pro
rata based on the number of Rights being exchanged (other than Rights which
have become void pursuant to the provisions of Section 7(e) hereof) and the
number of Rights held by each holder.
(c) In the event that there shall not be sufficient shares
of Class A Common Stock and Class B Common Stock issued but not outstanding,
or authorized but unissued, to permit any exchange of Rights as contemplated
in accordance with this Section 24, the Company shall take all such action as
may be necessary to authorize additional shares of Class A Common Stock
and/or Class B Common Stock for issuance upon exchange of the Rights
(including using its best efforts to cause the stockholders of the Company to
take all actions necessary to authorize such additional shares).
25
SECTION 25. NOTICE OF CERTAIN EVENTS. In case the Company shall
propose, at any time after the Distribution Date, (a) to pay any dividend
payable in stock of any class to the holders of Common Stock or to make any
other distribution to the holders of Common Stock (other than a regular
quarterly cash dividend out of earnings or retained earnings of the Company),
or (b) to offer to the holders of Common Stock rights or warrants to
subscribe for or to purchase any additional shares of Common Stock or shares
of stock of any class or any other securities, rights or options, or (c) to
effect any reclassification of its Common Stock (other than a
reclassification involving only the subdivision of outstanding shares of
Common Stock), or (d) 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 (taken as a whole) to, any other Person, or (e) to
effect the liquidation, dissolution or winding up of the Company, then, in
each such case, the Company shall give to each holder of a Rights
Certificate, to the extent feasible and in accordance with Section 26 hereof,
a notice of such proposed action, which shall specify the record date for the
purposes of such stock dividend, distribution of rights or warrants, or the
date on which such reclassification, consolidation, merger, sale, transfer,
liquidation, dissolution, or winding up is to take place and the date of
participation therein by the holders of the shares of Common Stock, if any
such date is to be fixed, and such notice shall be so given in the case of
any action covered by clause (a) or (b) above at least twenty (20) days prior
to the record date for determining holders of the shares of Common Stock for
purposes of such action, and in the case of any such other action, at least
twenty (20) days prior to the date of the taking of such proposed action or
the date of participation therein by the holders of the shares of Common
Stock whichever shall be the earlier.
In case of the occurrence of the event set forth in Section
11(a)(ii) of this Agreement, (i) the Company shall as soon as practicable
thereafter give to each holder of a Rights Certificate, to the extent
feasible and in accordance with Section 26 hereof, a notice of the occurrence
of such event, which shall specify the event and the consequences of the
event to holders of Rights under Section 11(a)(ii) hereof, and (ii) all
references in the preceding paragraph to Common Stock shall be deemed
thereafter to refer to Common Stock and/or, if appropriate, other securities.
SECTION 26. NOTICES. Notices or demands authorized by this Agreement
to be given or made by the Rights Agent or by the holder of any Rights
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:
G&K Services, Inc.
0000 Xxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Chief Executive Officer
Subject to the provisions of Section 21, any notice or demand
authorized by this Agreement to be given or made by the Company or by the
holder of any Rights Certificate to 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:
26
Xxxxx Fargo Bank Minnesota, National Association
000 Xxxxx Xxxxxxx Xxxxxxxx
Xxxxx Xx. Xxxx, XX 00000
Attention: Administration Department
Notices or demands authorized by this Agreement to be given or made
by the Company or the Rights Agent to the holder of any Rights Certificate
shall be sufficiently given or made if sent by first-class mail, postage
prepaid, addressed to such holder at the address of such holder as shown on
the registry books of the Company.
SECTION 27. SUPPLEMENTS AND AMENDMENTS. The Company and the Rights
Agent shall from time to time, if the Company so directs, supplement or amend
this Agreement without the approval of any holders of Rights Certificates
(or, prior to the Distribution Date, the associated Common Stock
certificates) in order (i) to cure any ambiguity, (ii) to correct or
supplement any provision contained herein which may be defective or
inconsistent with any other provisions herein, (iii) to extend the Final
Expiration Date, notwithstanding anything to the contrary provided in clause
(v) hereof, (iv) prior to the time a Person has become an Acquiring Person,
to change or supplement any of the provisions hereunder which the Company may
deem necessary or desirable to effectuate the purposes of this Agreement or
(v) following the time a Person has become an Acquiring Person, to change or
supplement any of the provisions hereunder in any manner which the Company
may deem necessary or desirable and which shall not adversely affect the
interests of the holders of Rights Certificates (other than an Acquiring
Person or an Affiliate or Associate of an Acquiring Person); PROVIDED,
HOWEVER, that this Agreement shall not be supplemented or amended in any way
unless such amendment is approved by a majority of the Board of Directors (as
determined in its discretion by the vote of a majority of the Directors then
in office) whose determination shall be final. Upon the delivery of a
certificate from an appropriate officer of the Company which states that the
proposed supplement or amendment is in compliance with the terms of this
Section 27, the Rights Agent shall execute such supplement or amendment
unless the Rights Agent shall have determined in good faith that such
supplement or amendment would adversely affect its interests under this
Agreement. Prior to the Distribution Date, the interests of the holders of
Rights shall be deemed coincident with the interests of the holders of Common
Stock.
SECTION 28. 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 29. BENEFITS OF THIS AGREEMENT. Nothing in this Agreement
shall be construed to give to any Person other than the Company, the Rights
Agent and the registered holders of the Rights Certificates (and, prior to
the Distribution Date, registered holders of the Common Stock) 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 Certificates (and, prior to the
Distribution Date, registered holders of the Common Stock).
SECTION 30. ADMINISTRATION OF AGREEMENT. The Board shall have the
exclusive power and authority to administer this Agreement and to exercise
all rights and powers specifically granted to the
27
Board or the Company or as may be necessary or advisable in the
administration of this Agreement, including without limitation the right and
power to interpret the Agreement and to make all determinations deemed
necessary or advisable for the administration of this Agreement. All such
acts, interpretations and determinations done or made by the Board in good
faith shall be final, conclusive and binding on the Company, the Rights Agent
and the holders of the Rights. Accordingly, the Board shall not be liable to
the holders of Rights Certificates or any other party for any determination
made, action taken, or action omitted to be taken pursuant to the terms of
this Agreement, if such determination, action or omitted action was made or
taken in good faith.
SECTION 31. SEVERABILITY. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall remain
in full force and effect and shall in no way be affected, impaired or
invalidated, PROVIDED, HOWEVER, that notwithstanding anything in this
Agreement or the Rights to the contrary, if any such term, provision,
covenant, or restriction is held by such court or authority to be invalid,
void, or unenforceable and the Board of Directors determines in its good
faith judgment that severing the invalid language from this Agreement would
adversely affect the purpose or effect of this Agreement, the right of
redemption set forth in Section 23 shall be reinstated and shall not expire
until the close of business on the 15th calendar day following the date of
such determination.
SECTION 32. GOVERNING LAW. This Agreement, each Right and each
Rights Certificate issued hereunder shall be deemed to be a contract made
under the laws of the State of Minnesota and for all purposes shall be
governed by and construed in accordance with the laws of such State
applicable to contracts made and to be performed entirely within such State.
SECTION 33. 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 34. 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.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
28
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
G&K SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------------
Its: CHIEF FINANCIAL OFFICER, TREASURER & SECRETARY
-----------------------------------------------
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION
By: /s/ Xxxxxx Honkenan
-----------------------------------------------
Its: VICE PRESIDENT
-----------------------------------------------
29
EXHIBIT A
[Form of Class A Rights Certificate]
Certificate No. RA- __________ Rights
NOT EXERCISABLE AFTER SEPTEMBER 16, 2011 OR EARLIER IF
REDEEMED BY THE COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION,
AT THE OPTION OF THE COMPANY, AT $.01 PER RIGHT ON THE TERMS
SET FORTH IN THE RIGHTS AGREEMENT REFERRED TO HEREIN. UNDER
CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN
ACQUIRING PERSON (AS SUCH TERM IS DEFINED IN THE RIGHTS
AGREEMENT) AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME
NULL AND VOID. [THE RIGHTS REPRESENTED BY THIS 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 VOID IN THE CIRCUMSTANCES SPECIFIED IN
SECTION 7(e) OF SUCH AGREEMENT.](1)
Class A Rights Certificate
G&K SERVICES, INC.
This certifies that __________________________, or registered
assigns, is the registered owner of the number of Class A Rights (the "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 September 17,
2001 (the "RIGHTS AGREEMENT"), between G&K Services, Inc., a Minnesota
corporation (the "COMPANY"), and Xxxxx Fargo Bank Minnesota, National
Association
-------------------------
(1) The portion of the legend in brackets shall be inserted only if
applicable and shall replace the preceding sentence.
A-1
(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. (Minneapolis, Minnesota time) on September 16, 2011 at the
office or offices of the Rights Agent designated for such purpose, or its
successors as Rights Agent, one fully paid, non-assessable share of Class A
Common Stock (the "COMMON STOCK") of the Company, at a purchase price of One
Hundred Thirty Dollars ($130.00) per share (the "PURCHASE PRICE"), subject to
adjustment as provided in the Rights Agreement, upon presentation and
surrender of this Class A Rights Certificate with the Form of Election to
Exercise duly executed. The number of Rights evidenced by this Class A Rights
Certificate (and the number of shares which may be purchased upon exercise
thereof) set forth above, and the Purchase Price per share set forth above,
are the number and Purchase Price as of September 17, 2001, based on the
Class A Common Stock as constituted at such date.
If the Rights evidenced by this Class A Rights Certificate
are beneficially owned by (i) an Acquiring Person or an Affiliate or
Associate of any such Acquiring Person (as such terms are defined in the
Rights Agreement), (ii) transferees of any such Acquiring Person, Associate
or Affiliate, or (iii) under certain circumstances, transferees of persons
who became an Acquiring Person, Affiliate or Associate following such
transfer, such Rights shall become null and void and no holder hereof shall
have any right with respect to such Rights.
As provided in the Rights Agreement, the Purchase Price and
the number and kind of shares of Common Stock or other securities which may
be purchased upon the exercise of the Rights evidenced by this Class A Rights
Certificate are subject to modification and adjustment upon the happening of
certain events.
This Class A Rights Certificate is subject to all of the
terms, provisions and conditions of the Rights Agreement, which terms,
provisions and conditions are hereby incorporated herein by reference and
made a part hereof and to which Rights Agreement reference is hereby made for
a full description of the rights, limitations of rights, obligations, duties
and immunities hereunder of the Rights Agent, the Company and the holders of
the Class A Rights Certificates, which limitations of rights include the
temporary suspension of the exercisability of such Rights under certain
circumstances specified in such Rights Agreement. Copies of the Rights
Agreement are on file at the office of the Rights Agent and are also
available upon written request to the Rights Agent.
This Class A Rights Certificate, with or without other
Rights Certificates, upon surrender at the office or offices of the Rights
Agent designated for such purpose, may be exchanged for another Class A
Rights Certificate or Class A Rights Certificates of like tenor and date
evidencing Rights entitling the holder to purchase a like aggregate number of
shares of Class A Common Stock as the Rights evidenced by the Class A Rights
Certificate or Class A Rights Certificates surrendered shall have entitled
such holder to purchase. If this Class A Rights Certificate shall be
exercised (other than pursuant to Section 11(a)(ii) of the Rights Agreement)
in part, the holder shall be entitled to receive upon surrender hereof
another Class A Rights Certificate or Class A Rights Certificates for the
number of whole Rights not exercised. If this Class A Rights Certificate
shall be exercised in whole or in part pursuant to Section 11(a)(ii) of the
Rights
A-3
Agreement, the holder shall be entitled to receive this Class A Rights
Certificate duly marked to indicate that such exercise has occurred as set
forth in the Rights Agreement.
Subject to the provisions of the Rights Agreement, the
Rights evidenced by this Class A Rights Certificate may be redeemed by the
Company at its option at a redemption price of $.01 per Right.
No fractional shares of Common Stock will be issued upon
the exercise of any Right or Rights evidenced hereby, but in lieu thereof a
cash payment will be made, as provided in the Rights Agreement.
No holder of this Class A Rights Certificate shall be
entitled to vote or receive dividends or be deemed for any purpose the holder
of shares of Common Stock 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 Class A Rights Certificate shall have been exercised as
provided in the Rights Agreement.
This Class A Rights Certificate shall not be valid or
obligatory for any purpose until it shall have been countersigned by the
Rights Agent.
WITNESS the facsimile signature of the proper officers of
the Company.
Dated as of _______________, 20__
ATTEST: G&K SERVICES, INC.
By:
------------------------------ ----------------------------
Secretary Title:
---------------------------
Countersigned:
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION
as Rights Agent
By:
----------------------------
Authorized Signature
A-4
[Form of Reverse Side of Class A Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Class A Rights Certificate.)
FOR VALUE RECEIVED ___________________________________ hereby sells,
assigns and transfers unto
---------------------------------------------------
(Please print name and address of transferee)
this Class A Rights Certificate, together with all right, title and interest
therein, and does hereby irrevocably constitute and appoint ____________________
Attorney, to transfer the within Rights Certificate on the books of the
within-named Company, with full power of substitution.
The undersigned hereby certifies (after due inquiry and to the
best of its knowledge) by checking the appropriate boxes that:
(1) this Class A Rights Certificate
[ ] is
or
[ ] is not
being sold, assigned and transferred by or on behalf of a Person who is or was
an Acquiring Person or an Affiliate or Associate of an Acquiring Person (as such
terms are defined in the Rights Agreement); and
(2) the undersigned
[ ] did
or
[ ] did not
acquire the Rights evidenced by this Class A Rights Certificate from any person
who is, was or subsequently became an Acquiring Person or an Affiliate or
Associate of an Acquiring Person.
Dated: ____________, 20__ --------------------------------
Signature
Signature Guaranteed:
THE SIGNATURE(S) SHOULD BE MEDALLION GUARANTEED BY AN ELIGIBLE GUARANTOR
INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT
UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEED MEDALLION PROGRAM).
NOTICE
The signature to the foregoing Assignment must correspond to
the name as written upon the face of this Class A Rights Certificate in every
particular, without alteration or enlargement or any change whatsoever.
FORM OF ELECTION TO EXERCISE
(To be executed if holder desires to
exercise Rights represented by the
Class A Rights Certificate.)
To: G&K SERVICES, INC.:
The undersigned hereby irrevocably elects to exercise
____________ Rights represented by this Class A Rights Certificate to purchase
the shares of Class A Common Stock issuable upon the exercise of the Rights (or
such other securities of the Company or of any other person which may be
issuable upon the exercise of the Rights) and requests that certificates for
such shares be issued in the name of:
-------------------------------------------------------------------------------
(Please print name and address)
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(Please insert social security
or other identifying number)
The Class A Rights Certificate indicating the balance, if
any, of such Rights which may still be exercised pursuant to Section
11(a)(ii) of the Rights Agreement shall be returned to the undersigned unless
such person requests that the Rights Class A Certificate be registered in the
name of and delivered to: (complete only if Class A Rights Certificate is to
be registered in a name other than the undersigned)
-------------------------------------------------------------------------------
(Please print name and address)
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(Please insert social security or other identifying number)
The undersigned hereby certifies (after due inquiry and to the
best of its knowledge) by checking the appropriate boxes that:
(1) the Rights evidenced by this Class A Rights
Certificate
[ ] are
or
[ ] are not
being exercised by or on behalf of a Person who is or was an Acquiring Person or
an Affiliate or Associate of an Acquiring Person (as such terms are defined in
the Rights Agreement); and
(2) the undersigned
[ ] did
or
[ ] did not
acquire the Rights evidenced by this Class A Rights Certificate from any person
who is, was or subsequently became an Acquiring Person or an Affiliate or
Associate of an Acquiring Person.
Dated: ____________, 20__ -----------------------------------
Signature
Signature Guaranteed:
THE SIGNATURE(S) SHOULD BE MEDALLION GUARANTEED BY AN ELIGIBLE GUARANTOR
INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT
UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEED MEDALLION PROGRAM).
PURSUANT TO S.E.C. RULE 17AD-15.
NOTICE
The signature to the foregoing Election to Exercise must
correspond to the name as written upon the face of this Class A Rights
Certificate in every particular, without alteration or enlargement or any change
whatsoever.
EXHIBIT B
[Form of Class B Rights Certificate]
Certificate No. RB- __________ Rights
NOT EXERCISABLE AFTER SEPTEMBER 16, 2011 OR EARLIER IF
REDEEMED BY THE COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION,
AT THE OPTION OF THE COMPANY, AT $.01 PER RIGHT ON THE TERMS
SET FORTH IN THE RIGHTS AGREEMENT REFERRED TO HEREIN. UNDER
CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN
ACQUIRING PERSON (AS SUCH TERM IS DEFINED IN THE RIGHTS
AGREEMENT) AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME
NULL AND VOID. [THE RIGHTS REPRESENTED BY THIS 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 VOID IN THE CIRCUMSTANCES SPECIFIED IN
SECTION 7(e) OF SUCH AGREEMENT.](2)
Class B Rights Certificate
G&K SERVICES, INC.
This certifies that __________________________, or registered
assigns, is the registered owner of the number of Class B Rights (the "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 September 17,
2001 (the "RIGHTS AGREEMENT"), between G&K Services, Inc., a Minnesota
corporation (the "COMPANY"), and Xxxxx Fargo Bank Minnesota, National
Association
----------------------
(2) The portion of the legend in brackets shall be inserted only if
applicable and shall replace the preceding sentence.
B-1
(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. (Minneapolis, Minnesota time) on September 16, 2011 at the
office or offices of the Rights Agent designated for such purpose, or its
successors as Rights Agent, one fully paid, non-assessable share of Class B
Common Stock (the "COMMON STOCK") of the Company, at a purchase price of One
Hundred Thirty Dollars ($130.00) per share (the "PURCHASE PRICE"), subject to
adjustment as provided in the Rights Agreement, upon presentation and
surrender of this Class B Rights Certificate with the Form of Election to
Exercise duly executed. The number of Rights evidenced by this Class B Rights
Certificate (and the number of shares which may be purchased upon exercise
thereof) set forth above, and the Purchase Price per share set forth above,
are the number and Purchase Price as of September 17, 2001, based on the
Class B Common Stock as constituted at such date.
If the Rights evidenced by this Class B Rights Certificate
are beneficially owned by (i) an Acquiring Person or an Affiliate or
Associate of any such Acquiring Person (as such terms are defined in the
Rights Agreement), (ii) transferees of any such Acquiring Person, Associate
or Affiliate, or (iii) under certain circumstances, transferees of persons
who became an Acquiring Person, Affiliate or Associate following such
transfer, such Rights shall become null and void and no holder hereof shall
have any right with respect to such Rights.
As provided in the Rights Agreement, the Purchase Price and
the number and kind of shares of Common Stock or other securities which may
be purchased upon the exercise of the Rights evidenced by this Class B Rights
Certificate are subject to modification and adjustment upon the happening of
certain events.
This Class B Rights Certificate is subject to all of the
terms, provisions and conditions of the Rights Agreement, which terms,
provisions and conditions are hereby incorporated herein by reference and
made a part hereof and to which Rights Agreement reference is hereby made for
a full description of the rights, limitations of rights, obligations, duties
and immunities hereunder of the Rights Agent, the Company and the holders of
the Class B Rights Certificates, which limitations of rights include the
temporary suspension of the exercisability of such Rights under certain
circumstances specified in such Rights Agreement. Copies of the Rights
Agreement are on file at the office of the Rights Agent and are also
available upon written request to the Rights Agent.
This Class B Rights Certificate, with or without other
Rights Certificates, upon surrender at the office or offices of the Rights
Agent designated for such purpose, may be exchanged for another Class B
Rights Certificate or Class B Rights Certificates of like tenor and date
evidencing Rights entitling the holder to purchase a like aggregate number of
shares of Class B Common Stock as the Rights evidenced by the Class B Rights
Certificate or Class B Rights Certificates surrendered shall have entitled
such holder to purchase. If this Class B Rights Certificate shall be
exercised (other than pursuant to Section 11(a)(ii) of the Rights
B-3
Agreement) in part, the holder shall be entitled to receive upon surrender
hereof another Class B Rights Certificate or Class B Rights Certificates for
the number of whole Rights not exercised. If this Class B Rights Certificate
shall be exercised in whole or in part pursuant to Section 11(a)(ii) of the
Rights Agreement, the holder shall be entitled to receive this Class B Rights
Certificate duly marked to indicate that such exercise has occurred as set
forth in the Rights Agreement.
Subject to the provisions of the Rights Agreement, the
Rights evidenced by this Class B Rights Certificate may be redeemed by the
Company at its option at a redemption price of $.01 per Right.
No fractional shares of Common Stock will be issued upon
the exercise of any Right or Rights evidenced hereby, but in lieu thereof a
cash payment will be made, as provided in the Rights Agreement.
No holder of this Class B Rights Certificate shall be
entitled to vote or receive dividends or be deemed for any purpose the holder
of shares of Common Stock 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 Class B Rights Certificate shall have been exercised as
provided in the Rights Agreement.
This Class B Rights Certificate shall not be valid or
obligatory for any purpose until it shall have been countersigned by the
Rights Agent.
WITNESS the facsimile signature of the proper officers of
the Company.
Dated as of _______________, 20__
ATTEST: G&K SERVICES, INC.
By:
----------------------------- ----------------------------
Secretary Title:
---------------------------
Countersigned:
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION
as Rights Agent
By:
---------------------------
Authorized Signature
B-4
[Form of Reverse Side of Class B Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Class B Rights Certificate.)
FOR VALUE RECEIVED ___________________________________ hereby
sells, assigns and transfers unto
--------------------------------------------
(Please print name and address of transferee)
this Class B Rights Certificate, together with all right, title and interest
therein, and does hereby irrevocably constitute and appoint
____________________ Attorney, to transfer the within Rights Certificate on
the books of the within-named Company, with full power of substitution.
The undersigned hereby certifies (after due inquiry and to the
best of its knowledge) by checking the appropriate boxes that:
(1) this Class B Rights Certificate
[ ] is
or
[ ] is not
being sold, assigned and transferred by or on behalf of a Person who is or was
an Acquiring Person or an Affiliate or Associate of an Acquiring Person (as such
terms are defined in the Rights Agreement); and
(2) the undersigned
[ ] did
or
[ ] did not
acquire the Rights evidenced by this Class B Rights Certificate from any person
who is, was or subsequently became an Acquiring Person or an Affiliate or
Associate of an Acquiring Person.
Dated: ____________, 20__ -------------------------------
Signature
Signature Guaranteed:
THE SIGNATURE(S) SHOULD BE MEDALLION GUARANTEED BY AN ELIGIBLE GUARANTOR
INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT
UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEED MEDALLION PROGRAM).
NOTICE
The signature to the foregoing Assignment must correspond to
the name as written upon the face of this Class B Rights Certificate in every
particular, without alteration or enlargement or any change whatsoever.
FORM OF ELECTION TO EXERCISE
(To be executed if holder desires to
exercise Rights represented by the
Class B Rights Certificate.)
To: G&K SERVICES, INC.:
The undersigned hereby irrevocably elects to exercise
____________ Rights represented by this Class B Rights Certificate to purchase
the shares of Class B Common Stock issuable upon the exercise of the Rights (or
such other securities of the Company or of any other person which may be
issuable upon the exercise of the Rights) and requests that certificates for
such shares be issued in the name of:
-------------------------------------------------------------------------------
(Please print name and address)
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(Please insert social security
or other identifying number)
The Class B Rights Certificate indicating the balance, if any,
of such Rights which may still be exercised pursuant to Section 11(a)(ii) of the
Rights Agreement shall be returned to the undersigned unless such person
requests that the Rights Class B Certificate be registered in the name of and
delivered to: (complete only if Class B Rights Certificate is to be registered
in a name other than the undersigned)
-------------------------------------------------------------------------------
(Please print name and address)
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(Please insert social security or other identifying number)
The undersigned hereby certifies (after due inquiry and to the
best of its knowledge) by checking the appropriate boxes that:
(1) the Rights evidenced by this Class B Rights
Certificate
[ ] are
or
[ ] are not
being exercised by or on behalf of a Person who is or was an Acquiring Person or
an Affiliate or Associate of an Acquiring Person (as such terms are defined in
the Rights Agreement); and
(2) the undersigned
[ ] did
or
[ ] did not
acquire the Rights evidenced by this Class B Rights Certificate from any person
who is, was or subsequently became an Acquiring Person or an Affiliate or
Associate of an Acquiring Person.
Dated: ____________, 20__ ----------------------------
Signature
Signature Guaranteed:
THE SIGNATURE(S) SHOULD BE MEDALLION GUARANTEED BY AN ELIGIBLE GUARANTOR
INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT
UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEED MEDALLION PROGRAM).
PURSUANT TO S.E.C. RULE 17AD-15.
NOTICE
The signature to the foregoing Election to Exercise must
correspond to the name as written upon the face of this Class B Rights
Certificate in every particular, without alteration or enlargement or any change
whatsoever.
EXHIBIT C
SUMMARY OF SHAREHOLDERS' RIGHTS PLAN
On August 30, 2001, the Board of Directors of G&K Services, Inc.
(the "COMPANY") declared a dividend of one Right (a "RIGHT") for each
outstanding share of the Company's Class A Common Stock and Class B Common
Stock, each with a par value of $.50 per share (collectively referred to
herein as the "COMMON STOCK"), to the stockholders of record at the close of
business on September 21, 2001 (the "RECORD DATE").
Initially, the Rights will be attached implicitly to all Class A and
Class B Common Stock certificates representing shares then outstanding, and
no separate Right certificates will be distributed. Except as set forth
below, each Right attached to shares of the Company's Class A Common Stock
(the "CLASS A RIGHTS") entitles the registered holder thereof to purchase
from the Company one share of Class A Common Stock at a price of $130.00 per
share (the "PURCHASE PRICE"), subject to adjustment. Similarly, each Right
attached to shares of the Company's Class B Common Stock (the "CLASS B
RIGHTS") entitles the registered holder thereof to purchase from the Company
one share of Class B Common Stock at the Purchase Price, subject to
adjustment. The description and terms of the Rights are set forth in a Rights
Agreement, dated as of September 17, 2001 (the "RIGHTS AGREEMENT") between
the Company and Xxxxx Fargo Bank Minnesota, National Association, as Rights
Agent.
The Rights will separate from the shares of Class A and Class B
Common Stock to which they are attached, and a Distribution Date (as defined
below) for the Rights will occur upon the earlier of: (i) the first date of
public announcement that a person or group of affiliated or associated
persons has become an "ACQUIRING PERSON" (i.e., has become, subject to
certain exceptions, the beneficial owner of voting securities having 15% or
more of the then voting power of the Company without the prior approval of a
majority of the Board of Directors) (such date is referred to herein as a
"STOCK ACQUISITION DATE") and (ii) the 10th day following the commencement or
public announcement of a tender offer or exchange offer, the consummation of
which would result in a person or group of affiliated or associated persons
becoming, subject to certain exceptions, an Acquiring Person (or such later
date as may be determined by the Board of Directors of the Company prior to a
person or group of affiliated or associated persons becoming an Acquiring
Person) (the earlier of such dates being called the "DISTRIBUTION DATE").
Until the Distribution Date (or the earlier redemption or expiration
of the Rights), the Rights will be transferred with and only with
certificates representing shares of the Company's Class A and Class B Common
Stock and any new certificates representing such shares issued after the
Record Date (either upon transfer or new issuance of the such common shares)
will contain a notation incorporating by reference the Rights Agreement.
Until the Distribution Date (or earlier redemption or expiration of the
Rights), the surrender for transfer of any certificates representing shares
of Class
C-1
A or Class B Common Stock outstanding as of the Record Date will also
constitute the transfer of the Rights associated with the stock represented
by such certificate. As soon as practicable following the Distribution Date,
separate certificates evidencing the Rights ("RIGHTS CERTIFICATES") will be
mailed to holders of record of shares of Class A and Class B Common Stock as
of the close of business on the Distribution Date, and the separate Rights
Certificates alone will evidence the Rights. The Rights are not exercisable
until the Distribution Date.
In the event that any person becomes an Acquiring Person, each Class
A Right (except with respect to Rights held by the Acquiring Person, its
affiliates and associates and certain transferees of the Acquiring Person or
such affiliates or associates) will entitle the holder thereof (subject to
possible suspensions provided for in the Rights Agreement) to receive that
number of shares of Class A Common Stock having a value equal to twice the
Purchase Price. Likewise, each Class B Right (except with respect to Rights
held by the Acquiring Person, its affiliates and associates and certain
transferees of the Acquiring Person or such affiliates or associates) will
entitle the holder thereof to receive that number of shares of Class B Common
Stock having a value equal to twice the Purchase Price (in such event, the
right to acquire such amount of Class A and Class B Common Stock is referred
to as a "FLIP-IN RIGHT"). A majority of the Board of Directors (as determined
in its discretion by the vote of a majority of the directors then in office)
may elect to distribute cash, other securities or other property in lieu of
shares of Class A and Class B Common Stock to the Right holders upon the
exercise of their Rights following any such event.
In the event that, at any time following a Stock Acquisition Date,
the Company is acquired in a merger or other business combination transaction
where the Company is not the surviving corporation or in the event that 50%
or more of its assets or earning power is sold, proper provision shall be
made so that each holder of a Right will thereafter have the right (in lieu
of the Flip-In Right) to receive, upon the exercise thereof at the then
current Purchase Price of the Right, common stock of the acquiring entity
which has a value equal to twice the purchase price of the Right (such right
being called a "FLIP-OVER RIGHT"). Upon the occurrence of any of the events
giving rise to the exercisability of the Flip-In Right, any Rights that are
or were at any time owned by an Acquiring Person engaging in any of such
transactions or receiving the benefits thereof on or after the time the
Acquiring Person became such shall become null and void.
For example, at a purchase price of $130 per Right, and assuming a
current market price of $30 per share, if (i) any person becomes an Acquiring
Person or (ii) the Company is the surviving corporation in a merger with an
Acquiring Person in which the Class A and Class B Common Stock is not
converted or exchanged, each Right other than a Right owned by the Acquiring
Person would entitle its holder to purchase $260 worth of Class A Common
Stock or Class B Common Stock, as applicable, for $130. If, following the
Distribution Date, there occurs (i) a business combination with another
entity in which the Company's Class A and Class B Common Stock is converted
or exchanged, or (ii) a sale of 50% or more of the Company's assets or
earning power, each Right would entitle its holder to purchase $260 worth of
the acquiring entity's stock for $130.
C-2
The Purchase Price payable, and the number of shares of Class A or
Class B Common Stock or other securities or property issuable, upon exercise
of the Rights are subject to adjustment from time to time to prevent dilution
(i) in the event of a stock dividend on, or a subdivision, combination or
reclassification of the Common Stock, (ii) upon the grant to holders of the
Common Stock of certain rights or warrants to subscribe for Common Stock or
convertible securities at less than the current market price of the Common
Stock or (iii) upon the distribution to holders of the Common Stock of
evidences of indebtedness or assets (excluding regular quarterly cash
dividends) or of subscription rights or warrants (other than those referred
to above).
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments require an adjustment of at least 1% in
the Purchase Price. No fractions of shares will be issued and, in lieu
thereof, an adjustment in cash will be made based on the market price of the
Common Stock on the last trading date prior to the date of exercise.
At any time prior to the earlier to occur of (i) a person becoming
an Acquiring Person or (ii) the expiration of the Rights, the Company may
redeem the Rights in whole, but not in part, at a price of $.001 per Right
(the "REDEMPTION PRICE"), which redemption shall be effective upon the action
of the Board of Directors. Additionally, the Board of Directors may
thereafter redeem the then outstanding Rights in whole, but not in part, at
the Redemption Price provided that (a) the redemption is incidental to a
merger or other business combination transaction or series of transactions
involving the Company but not involving an Acquiring Person, or (b) an
Acquiring Person has reduced his beneficial ownership to less than 5% of the
then voting power of the Company and there exists no other Acquiring Person
at the time of the redemption. Upon the effective date of the 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.
Additionally, the Board of Directors (as evidenced by the vote of a
majority of the directors then in office) may also, at any time from and
after a person has become an Acquiring Person, exchange one share of Class A
Common Stock or Class B Common Stock, as applicable, for each Right held by a
shareholder other than the Acquiring Person during such time as the Acquiring
Person holds between 15% and 50% of the voting power of the Company.
Until a Right is exercised, it will not entitle the holder to any
rights as a stockholder of the Company (other than those as an existing
stockholder), including, without limitation, the right to vote or to receive
dividends.
The terms of the Rights may be amended by the Board of Directors of
the Company in any manner prior to a person becoming an Acquiring Person, and
may thereafter amend the terms of the Rights to cure any ambiguity, to
correct or supplement any provision of the Rights Agreement which may be
defective or inconsistent with any other provisions, or in any manner not
adversely affecting the interests of the holders of the Rights.
The Rights will expire on September 16, 2011, unless earlier redeemed
by the Company
C-3
pursuant to the Rights Agreement.
A copy of the Rights Agreement will be filed with the Securities and
Exchange Commission as an Exhibit to the Company's Registration Statement on
Form 8-A. A copy of the Rights Agreement is available free of charge from the
Company. This summary description of the Rights does not purport to be
complete and is qualified in its entirety by reference to the Rights
Agreement.
C-4
