Exhibit 4.6
This Stock Purchase Right and any shares acquired upon purchase pursuant to the
terms hereof have not been registered under the Securities Act of 1933, as
amended, and may not be transferred, sold or otherwise disposed of except while
such a registration is in effect or pursuant to an exemption from registration
under said Act.
The holder of the securities represented by this certificate is subject to
certain obligations contained in a Standstill Agreement dated as of August 29,
2000, a copy of which is available for inspection at the principal office of the
issuer hereof, and will be furnished without charge to the holder of such
securities upon written request.
[NAME OF SUBSIDIARY]
STOCK PURCHASE RIGHT
Rochester, New Hampshire
August 30, 2000
[Name of Subsidiary], a Delaware corporation (the "Company"), for value
received, hereby certifies that [name of investor]., or registered assigns, is
entitled to purchase from the Company up to [amount of shares] duly authorized,
validly issued, fully paid and nonassessable shares of Common Stock, par value
$.01 per share (the "Common Stock"), of the Company at the price per share equal
to the Deemed Purchase Price Per Share, at any time or from time to time, on or
after the Effective Date (as defined below) and prior to 5:00 P.M. Rochester,
New Hampshire time, on the Termination Date (as defined below), all subject to
the terms, conditions and adjustments set forth herein.
This Stock Purchase Right is one of the Subsidiary Stock Purchase Rights
(the "Stock Purchase Rights") originally issued in connection with the execution
and delivery of the Amended and Restated Securities Purchase Agreement dated as
of August 29, 2000 (as from time to time in effect, the "Purchase Agreement")
among Cabletron Systems, Inc. and the investors named therein (the "Investors").
The Stock Purchase Rights originally so issued evidence rights to purchase an
aggregate of 5,166,666 shares of Common Stock, subject to adjustment as provided
herein. Certain capitalized terms used in this Stock Purchase Right are defined
in Section 11 hereof.
The shares of Common Stock subject to this Stock Purchase Right may be
purchased on any Business Day commencing on the Business Day that is ten
Business Days prior to the date of the earliest to occur of the following (such
date, the "Effective Date"): (i) the date on which the registration statement
filed by the Company in connection with its Pre-Spin-Off IPO is declared
effective by the Commission, such purchase to be subject to the consummation of
the Company's Pre-Spin-Off IPO; (ii) the date of the consummation of a Third-
Party Sale of the Company; and (iii) the date of the consummation of the Spin-
Off of the Company to shareholders of Cabletron Systems, Inc. without the
Company's having first engaged in a Pre-
Spin-Off IPO. In case of a Third-Party Sale, shares of Common Stock received
upon purchase shall be entitled to participate in the proceeds of such Third-
Party Sale to the same extent as other holders of Common Stock are entitled to
participate, regardless of the structure of such Third-Party Sale.
The right to purchase shares of Common Stock subject to this Stock
Purchase Right will terminate on the date (the "Termination Date") of the
earliest to occur of the following: (i) the date on which the registration
statement filed by the Company in connection with its Pre-Spin-Off IPO is
declared effective by the Commission (if not purchased on or prior to such
date); (ii) the date of the consummation of a Third-Party Sale of the Company
(if not purchased on or prior to such date); (iii) the twentieth Business Day
following completion of the Spin-Off of the Company to shareholders of Cabletron
Systems, Inc. without the Company's having first consummated a Pre-Spin-Off IPO
(if not purchased on or prior to such date); (iv) the issuance of Replacement
Rights in respect of the cancellation of this Stock Purchase Right; and (v) four
years from the date hereof; provided, however, that in each case, the
Termination Date shall be extended to the extent necessary to permit the Company
and the holder of this Stock Purchase Right to obtain any necessary antitrust
and other regulatory approvals for such purchase; and provided, further, that if
the Termination Date as determined by the preceding provisions of this sentence
(other than clause (iv) hereof) shall occur on a day other than a Business Day,
the Termination Date shall be extended to the next succeeding Business Day. The
Company shall provide the holder of this Stock Purchase Right with written
notice of the occurrence of the Effective Date not less than ten Business Days
prior to such Effective Date.
1. PURCHASE OR CONVERSION OF STOCK PURCHASE RIGHT.
1.1. Manner of Purchase or Conversion; Payment.
1.1.1. Purchase. The shares of Common Stock subject to this Stock
Purchase Right may be purchased by the holder hereof, in whole or in part,
during normal business hours on any Business Day on or after the Effective Date
and on or prior to the Termination Date, by surrender of this Stock Purchase
Right to the Company at its office maintained pursuant to Section 10.2(a)
hereof, accompanied by a subscription in substantially the form attached to this
Stock Purchase Right (or a reasonable facsimile thereof) duly executed by such
holder. Within ten Business Days of such surrender, such holder shall make a
payment to the Company, in cash, by certified check payable to the order of the
Company or by wire transfer (or by any combination of such methods), in the
amount obtained by multiplying (a) the number of shares of Common Stock (without
giving effect to any adjustment thereof) designated in such subscription by (b)
the Deemed Purchase Price Per Share, and such holder shall thereupon be entitled
to receive the number of duly authorized, validly issued, fully paid and
nonassessable shares of Common Stock (or Other Securities) determined as
provided in Sections 2 and 3 hereof.
1.1.2. Conversion. This Stock Purchase Right may be converted by the
holder hereof, in whole or in part, into shares of Common Stock, during normal
business hours on any Business Day on or prior to the Termination Date, by
surrender of this Stock Purchase Right to the Company at its office maintained
pursuant to Section 10.2(a) hereof, accompanied by a conversion notice in
substantially the form attached to this Stock Purchase Right (or a reasonable
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facsimile thereof) duly executed by such holder, and such holder shall thereupon
be entitled to receive a number of duly authorized, validly issued, fully paid
and nonassessable shares of Common Stock (or Other Securities) equal to:
(i) an amount equal to:
(a) an amount equal to (x) the number of shares of Common Stock
(or Other Securities) determined as provided in Sections 2
and 3 hereof which such holder would be entitled to receive
upon purchase of shares of Common Stock pursuant to this
Stock Purchase Right for the number of shares of Common Stock
designated in such conversion notice multiplied by (y) the
Market Price on the date of conversion of each such share of
Common Stock (or such Other Securities) so receivable upon
such purchase
minus
(b) an amount equal to (x) the number of shares of Common Stock
(without giving effect to any adjustment thereof) designated
in such conversion notice multiplied by (y) the Deemed
Purchase Price Per Share
divided by
(ii) such Market Price of each such share of Common Stock (or Other
Securities).
For all purposes of this Stock Purchase Right (other than this Section 1.1), any
reference herein to the purchase of shares of Common Stock pursuant to this
Stock Purchase Right shall be deemed to include a reference to the conversion of
this Stock Purchase Right into Common Stock (or other Securities) in accordance
with the terms of this Section 1.1.2.
1.2. When Purchase Effective. Each purchase of shares of Common Stock
pursuant to this Stock Purchase Right shall be deemed to have been effected
immediately prior to the close of business on the Business Day on which this
Stock Purchase Right shall have been surrendered to the Company as provided in
Section 1.1 hereof, and at such time the Person or Persons in whose name or
names any certificate or certificates for shares of Common Stock (or Other
Securities) shall be issuable upon such purchase as provided in Section 1.3
hereof shall be deemed to have become the holder or holders of record thereof.
1.3. Delivery of Stock Certificates, etc. Promptly after each purchase of
shares of Common Stock subject to this Stock Purchase Right, in whole or in
part, and in any event within five Business Days of receipt by the Company of
payment of the purchase price therefor, the Company at its expense (including
the payment by it of any applicable issue taxes) will cause to be issued in the
name of and delivered to the holder hereof or, subject to Section 8 hereof, as
such holder (upon payment by such holder of any applicable transfer taxes) may
direct:
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(a) a certificate or certificates for the number of duly authorized,
validly issued, fully paid and nonassessable shares of Common Stock (or
Other Securities) to which such holder shall be entitled upon such purchase
plus, in lieu of any fractional share to which such holder would otherwise
be entitled, cash in an amount equal to the same fraction of the Market
Price per share on the Business Day next preceding the date of such
purchase; and
(b) in case such purchase is in part only, a new Stock Purchase Right
or Stock Purchase Rights of like tenor, dated the date hereof and calling
in the aggregate on the face or faces thereof for the number of shares of
Common Stock equal (without giving effect to any adjustment thereof) to the
number of such shares called for on the face of this Stock Purchase Right
minus the number of such shares designated by the holder upon such purchase
as provided in Section 1.1 hereof.
1.4. Mandatory Purchase. Subject to Section 8.6 of the Purchase Agreement,
the Company may require the holder to purchase all or any portion of shares of
Common Stock subject to this Stock Purchase Right by providing the holder with
written notice not less than five Business Days prior to the date of pricing of
the Company's Pre-Spin-Off IPO; provided, however, that such required purchase
shall be subject to the consummation of the Company's Pre-Spin-Off IPO.
2. ADJUSTMENT OF COMMON STOCK ISSUABLE UPON PURCHASE.
2.1. General; Number of Shares; Specified Amount. The number of shares of
Common Stock which the holder of this Stock Purchase Right shall be entitled to
receive upon each purchase shall be determined by multiplying the number of
shares of Common Stock that would otherwise (but for the provisions of this
Section 2) be issuable upon such purchase, as designated by the holder hereof
pursuant to Section 1.1 hereof, by the fraction of which (i) the numerator is
the Initial Specified Amount Per Share and (ii) the denominator is the Specified
Amount in effect on the date of such purchase. The "Specified Amount" shall
initially be the Initial Specified Amount Per Share, shall be adjusted and
readjusted from time to time as provided in this Section 2 and, as so adjusted
or readjusted, shall remain in effect until a further adjustment or readjustment
thereof is required by this Section 2.
2.2. Treatment of Stock Dividends, Stock Splits, etc. In case the Company
at any time or from time to time after the date hereof shall declare or pay any
dividend or other distribution on the Common Stock payable in shares of Common
Stock, or shall effect a subdivision of the outstanding shares of Common Stock
into a greater number of shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common Stock), then, and in
each such case, additional shares of Common Stock shall be deemed to have been
issued (a) in the case of any such dividend or other distribution, immediately
after the close of business on the record date for the determination of holders
of any class of securities entitled to receive such dividend, or (b) in the case
of any such subdivision, immediately after the close of business on the day
immediately prior to the day upon which such corporate action becomes effective.
Effective at the time such additional shares of Common Stock shall be deemed to
have been issued, the Specified Amount shall be reduced to a price (calculated
to the nearest .001 of a cent)
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determined by multiplying the Specified Amount in effect immediately prior to
such time by a fraction:
(x) the numerator of which shall be the number of shares of Common Stock
outstanding immediately prior to such time; and
(y) the denominator of which shall be the number of shares of Common Stock
outstanding at such time (including the shares of Common Stock deemed
to have been issued at such time in respect of any such dividend or
subdivision).
Notwithstanding the foregoing provisions of this Section 2.2, no adjustment of
the Specified Amount shall take place in respect of any dividend or distribution
referred to in this Section 2.2 if such dividend is not actually paid (whether
or not a record date therefor shall have been declared).
2.3. Adjustments for Combinations, etc. In case the outstanding shares of
Common Stock shall be combined or consolidated, by reclassification or
otherwise, into a lesser number of shares of Common Stock, then, and in each
such case, the Specified Amount shall be increased, concurrently with the
effectiveness of such combination or consolidation, to a price, calculated to
the nearest .001 of a cent, determined by multiplying the Specified Amount in
effect immediately prior to such combination or consolidation by a fraction:
(x) the numerator of which shall be the number of shares of Common Stock
outstanding immediately prior to the effectiveness of such combination
or consolidation; and
(y) the denominator of which shall be the number of shares of Common Stock
outstanding at the time of such effectiveness after giving effect to
such combination or consolidation.
3. CONSOLIDATION, MERGER, ETC.
3.1. Adjustments for Consolidation, Merger, Sale of Assets, Reorganization,
etc. In case the Company after the date hereof (a) shall consolidate with or
merge into any other Person and shall not be the continuing or surviving
corporation of such consolidation or merger, or (b) shall permit any other
Person to consolidate with or merge into the Company and the Company shall be
the continuing or surviving Person but, in connection with such consolidation or
merger, the Common Stock or Other Securities shall be changed into or exchanged
for stock or other securities of any other Person or cash or any other property,
or (c) shall transfer all or substantially all of its properties or assets to
any other Person, or (d) shall effect a capital reorganization or
reclassification of the Common Stock or Other Securities (other than a capital
reorganization or reclassification to the extent that such capital
reorganization or reclassification results in the issue of additional shares of
Common Stock for which adjustment in the Specified Amount is provided in Section
2 hereof), then, and in the case of each such transaction, proper provision
shall be made so that, upon the basis and the terms and in the manner provided
in this Stock Purchase Right, the holder of this Stock Purchase Right, upon the
purchase hereto of
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shares of Common Stock subject to this Stock Purchase Right at any time after
the consummation of such transaction, shall be entitled to receive (at the
aggregate Deemed Purchase Price Per Share in effect at the time of such
consummation for all Common Stock or Other Securities issuable upon such
purchase immediately prior to such consummation), in lieu of the Common Stock or
Other Securities issuable upon such purchase prior to such consummation, the
greatest amount of securities, cash or other property to which such holder would
actually have been entitled as a shareholder upon such consummation if such
holder had purchased the shares of Common Stock represented by this Stock
Purchase Right immediately prior thereto (assuming such shareholder failed to
purchase any shares of Common Stock and received per share the kind and amount
of consideration receivable per share by a plurality of all shares of Common
Stock not so purchased), subject to adjustments (subsequent to such
consummation) as nearly equivalent as possible to the adjustments provided for
in Sections 2 and 3 hereof.
3.2. Assumption of Obligations. Notwithstanding anything contained in this
Stock Purchase Right to the contrary, the Company will not effect any of the
transactions described in clauses (a) through (d) of Section 3.1 hereof unless,
prior to the consummation thereof, each person (other than the Company) which
may be required to deliver any stock, securities, cash or property upon the
purchase of shares of Common Stock subject to this Stock Purchase Right as
provided herein shall assume, by written instrument delivered to the holder of
this Stock Purchase Right, (a) the obligations of the Company under this Stock
Purchase Right (and if the Company shall survive the consummation of such
transaction, such assumption shall be in addition to, and shall not release the
Company from, any continuing obligations of the Company under this Stock
Purchase Right), and (b) the obligation to deliver to such holder such shares of
stock, securities, cash or property as, in accordance with the foregoing
provisions of this Section 3, such holder may be entitled to receive.
4. NO DILUTION OR IMPAIRMENT. The Company will not, by amendment of its
certificate of incorporation or through any consolidation, merger,
reorganization, transfer of assets, dissolution, issue or sale of securities or
any other voluntary action, take any action to avoid or to seek to avoid the
observance or performance of any of the terms of this Stock Purchase Right, but
will at all times in good faith assist in the carrying out of all such terms and
in the taking of all such action as may be necessary or appropriate in order to
protect the rights of the holder of this Stock Purchase Right specifically
provided herein. Without limiting the generality of the foregoing, the Company
(a) will not permit the par value of any shares of stock receivable upon the
purchase of shares of Common Stoke subject to this Stock Purchase Right to
exceed the amount payable therefor upon such purchase, (b) will take all such
action as may be necessary or appropriate in order that the Company may validly
and legally issue fully paid and nonassessable shares of stock on the purchase
of shares of Common Stock subject to the Stock Purchase Rights from time to time
outstanding, and (c) will not take any action which results in any adjustment of
the Specified Amount if the total number of shares of Common Stock (or Other
Securities) issuable after the action upon the purchase of all of the shares of
Common Stock subject to Stock Purchase Rights would exceed the total number of
shares of Common Stock (or Other Securities) then authorized by the Company's
certificate of incorporation and available for the purpose of issue upon such
purchase.
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5. REPORT AS TO ADJUSTMENTS. In each case of any adjustment or readjustment in
the shares of Common Stock (or Other Securities) issuable upon the purchase of
shares of Common Stock subject to this Stock Purchase Right, the Company will
promptly compute such adjustment or readjustment in accordance with the terms of
this Stock Purchase Right and prepare a report setting forth such adjustment or
readjustment and showing in reasonable detail the method of calculation thereof
and the facts upon which such adjustment or readjustment is based, including a
statement of the Actual Purchase Price Per Share and Specified Amount in effect
immediately prior to and after giving effect to such adjustment or readjustment.
The Company will forthwith mail a copy of each such report to each holder of a
Stock Purchase Right and will, upon the written request at any time of any
holder of a Stock Purchase Right, furnish to such holder a like report setting
forth the Actual Purchase Price Per Share and Specified Amount at the time in
effect and showing in reasonable detail how it was calculated. The Company will
also keep copies of all such reports at its office maintained pursuant to
Section 10.2(a) hereof and will cause the same to be available for inspection at
such office during normal business hours by any holder of a Stock Purchase Right
or any prospective purchaser of a Stock Purchase Right designated by the holder
thereof.
6. NOTICES OF CORPORATE ACTION. In the event of
(a) any taking by the Company of a record of the holders of any class
of securities for the purpose of determining the holders thereof who are
entitled to receive any dividend or other distribution, or any right to
subscribe for, purchase or otherwise acquire any shares of stock of any
class or any other securities or property, or to receive any other right,
or
(b) any capital reorganization of the Company, any reclassification or
recapitalization of the capital stock of the Company or any consolidation
or merger involving the Company and any other Person or any transfer of all
or substantially all the assets of the Company to any other Person, or
(c) any voluntary or involuntary dissolution, liquidation or winding-
up of the Company,
the Company will mail to each holder of a Stock Purchase Right a notice
specifying (i) the date or expected date on which any such record is to be taken
for the purpose of such dividend, distribution or right, and the amount and
character of such dividend, distribution or right, and (ii) the date or expected
date on which any such reorganization, reclassification, recapitalization,
consolidation, merger, transfer, dissolution, liquidation or winding-up is to
take place, and the time, if any such time is to be fixed, as of which the
holders of record of Common Stock (or Other Securities) shall be entitled to
exchange their shares of Common Stock (or Other Securities) for the securities
or other property deliverable upon such reorganization, reclassification,
recapitalization, consolidation, merger, transfer, dissolution, liquidation or
winding-up.
7. LISTING OF COMMON STOCK. At any time Common Stock is listed or admitted to
trading (as applicable) on any national securities exchange or designated as a
National Market
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System security by the NASD, the Company will, at its expense, obtain promptly
and maintain the approval for listing and admission to trading (as applicable)
on each such exchange and system, upon official notice of issuance, the shares
of Common Stock issuable upon purchase thereof pursuant to the terms of the then
outstanding Stock Purchase Rights and maintain the listing or trading (as
applicable) of such shares after their issuance.
8. RESTRICTIONS ON TRANSFER. Each certificate evidencing shares of Common
Stock (or Other Securities) issued upon the purchase thereof pursuant to the
terms of any Stock Purchase Right, each certificate issued upon the direct or
indirect transfer of any such Common Stock (or Other Securities), all Stock
Purchase Rights originally issued pursuant to the Purchase Agreement and each
Stock Purchase Right issued upon direct or indirect transfer or in substitution
for any Stock Purchase Right pursuant to Section 10 hereof shall be transferable
only upon satisfaction of the conditions specified in Section 4.01 of the
Standstill Agreement and in this Section 8 and shall be stamped or otherwise
imprinted with legends in substantially the form required by Section 4.02 of the
Standstill Agreement.
9. RESERVATION OF STOCK, ETC. The Company will at all times reserve and keep
available, solely for issuance and delivery upon the purchase of shares of
Common Stock subject to the Stock Purchase Rights, the number of shares of
Common Stock of each class (or Other Securities) from time to time issuable upon
such purchase pursuant to the terms of all Stock Purchase Rights at the time
outstanding. All shares of Common Stock (or Other Securities) issuable upon the
purchase thereof pursuant to the terms of any Stock Purchase Rights shall be
duly authorized and, when issued upon such purchase, shall be validly issued
and, in the case of shares, fully paid and nonassessable with no liability on
the part of the holders thereof.
10. OWNERSHIP, TRANSFER AND SUBSTITUTION OF STOCK PURCHASE RIGHTS.
10.1. Ownership of Stock Purchase Rights. The Company may treat the person
in whose name any Stock Purchase Right is registered on the register kept at the
office of the Company maintained pursuant to Section 10.2(a) hereof as the owner
and holder thereof for all purposes, notwithstanding any notice to the contrary,
except that, if and when any Stock Purchase Right is properly assigned in blank,
the Company may (but shall not be obligated to) treat the bearer thereof as the
owner of such Stock Purchase Right for all purposes, notwithstanding any notice
to the contrary. Subject to Section 8 hereof, shares of Common Stock subject to
a Stock Purchase Right, if such Stock Purchase Right is properly assigned, may
be purchased by a new holder without a new Stock Purchase Right first having
been issued.
10.2. Office; Transfer and Exchange of Stock Purchase Rights.
(a) The Company will maintain an office (which may be an agency
maintained at a bank) in Rochester, New Hampshire where notices,
presentations and demands in respect of this Stock Purchase Right may be
made upon it. Such office shall be maintained at 00 Xxxxxxxxxx Xxx,
Xxxxxxxxx, Xxx Xxxxxxxxx 00000 until such time as the Company shall notify
the holders of the Stock Purchase Rights of any change of location of such
office within Rochester, New Hampshire.
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(b) The Company shall cause to be kept at its office maintained
pursuant to Section 10.2(a) hereof a register for the registration and
transfer of the Stock Purchase Rights. The names and addresses of holders
of Stock Purchase Rights, the transfers thereof and the names and addresses
of transferees of Stock Purchase Rights shall be registered in such
register. The Person in whose name any Stock Purchase Right shall be so
registered shall be deemed and treated as the owner and holder thereof for
all purposes of this Stock Purchase Right, and the Company shall not be
affected by any notice or knowledge to the contrary.
(c) Upon the surrender of any Stock Purchase Right, properly endorsed,
for registration of transfer or for exchange at the office of the Company
maintained pursuant to Section 10.2(a) hereof, the Company at its expense
will (subject to compliance with Section 8 hereof, if applicable) execute
and deliver to or upon the order of the holder thereof a new Stock Purchase
Right or Stock Purchase Rights of like tenor, in the name of such holder or
as such holder (upon payment by such holder of any applicable transfer
taxes) may direct, calling in the aggregate on the face or faces thereof
for the number of shares of Common Stock called for on the face or faces of
the Stock Purchase Right or Stock Purchase Rights so surrendered.
10.3. Replacement of Stock Purchase Rights. Upon receipt of evidence
reasonably satisfactory to the Company of the loss, theft, destruction or
mutilation of any Stock Purchase Right and upon delivery of indemnity and surety
bond reasonably satisfactory to the Company in form and amount or, in the case
of any such mutilation, upon surrender of such Stock Purchase Right for
cancellation at the office of the Company maintained pursuant to Section 10.2(a)
hereof, the Company at its expense will execute and deliver, in lieu thereof, a
new Stock Purchase Right of like tenor and dated the date hereof.
11. DEFINITIONS. As used herein, unless the context otherwise requires, the
following terms have the following respective meanings:
Actual Purchase Price Per Share: (a) If any shares of Common Stock subject
to this Stock Purchase Right are being purchased in connection with the
Company's Pre-Spin-Off IPO, the lesser of the Specified Amount at the time of
such purchase and 90% of the gross price paid per share paid by the public in
such Pre-Spin-Off IPO, (b) if any shares of Common Stock subject to this Stock
Purchase Right are being purchased in connection with a Third-Party Sale, the
Specified Amount at the time of such purchase, and (c) if any shares of Common
Stock subject to this Stock Purchase Right are being purchased in connection
with a Spin-Off of the Company which has not been preceded by a Pre-Spin-Off
IPO, the Specified Amount at the time of such purchase.
Business Day: Any day other than a Saturday or a Sunday or a day on which
commercial banking institutions in Boston, Massachusetts, New York, New York or
Rochester, New Hampshire are authorized by law to be closed. Any reference to
"days" (unless Business Days are specified) shall mean calendar days.
9
Commission: The Securities and Exchange Commission or any other federal
agency at the time administering the Securities Act.
Common Stock: As defined in the introduction to this Stock Purchase Right,
such term to include any stock into which such Common Stock shall have been
changed or any stock resulting from any reclassification of such Common Stock,
and all other stock of any class or classes (however designated) of the Company
the holders of which have the right, without limitation as to amount, either to
all or to a share of the balance of current dividends and liquidating dividends
after the payment of dividends and distributions on any shares entitled to
preference; provided, however, that, subject to the provisions of Section 3.1 of
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this Stock Purchase Right, shares of Common Stock issuable on the purchase
thereof pursuant to the terms of this Stock Purchase Right shall include only
shares of the class designated as Common Stock of the Company on the date hereof
or any stock into which such Common Stock shall have been changed or any stock
resulting from any reclassification of such Common Stock (provided that, if at
any time there shall be more than one such resulting class, the shares of each
such class then so issuable shall be substantially in the proportion which the
total number of shares of such class resulting from such changes and
reclassifications bears to the total number of shares of all classes resulting
from all such changes and reclassifications).
Company: As defined in the introduction to this Stock Purchase Right, such
term to include any corporation which shall succeed to or assume the obligations
of the Company hereunder in compliance with Section 3 hereof.
Deemed Purchase Price Per Share: The amount determined by dividing (a) the
product obtained by multiplying the Actual Purchase Price Per Share by the total
number of shares of Common Stock issuable upon purchase thereof pursuant to the
terms of this Stock Purchase Right (after giving effect to all adjustments
provided for in Section 2 hereof) by (b) the number of shares of Common Stock
initially issuable upon purchase thereof pursuant to the terms of this Stock
Purchase Right (without giving effect to any adjustment provided for in Section
2 hereof or otherwise provided for herein).
Effective Date: As defined in the introduction to this Stock Purchase
Right.
Initial Specified Amount Per Share: $[applicable specified amount].
Investors: As defined in the introduction to this Stock Purchase Right.
Market Price: On any date specified herein, the amount per share of Common
Stock equal to (a) the last sale price of Common Stock, regular way, on such
date or, if no such sale takes place on such date, the average of the closing
bid and asked prices thereof on such date, in each case as officially reported
on the principal national securities exchange on which Common Stock is then
listed or admitted to trading, or (b) if Common Stock is not then listed or
admitted to trading on any national securities exchange but is designated as a
national market system security by the NASD, the last trading price of Common
Stock on such date, or (c) if there shall have been no trading on such date or
if Common Stock is not so designated,
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the average of the closing bid and asked prices of Common Stock on such date as
shown by the NASD automated quotation system, or (d) if Common Stock is not then
listed or admitted to trading on any national exchange or quoted in the over-
the-counter market, the fair value thereof on such date as reasonably determined
in good faith by the Board of Directors of the Company as of the date on which
the determination is to be made; provided, however, that the holder of this
Stock Purchase Right shall have no right to object to such determination unless
such holder submits an objection in good faith to the Board of Directors within
10 days of notice thereof.
NASD: The National Association of Securities Dealers, Inc.
Operating Subsidiary: As defined in the Purchase Agreement.
Other Securities: Any stock (other than Common Stock) and other
securities of the Company or any other person (corporate or otherwise) which the
holders of the Stock Purchase Rights at any time shall be entitled to receive,
or shall have received, upon the purchase thereof pursuant to the terms of the
Stock Purchase Rights, in lieu of or in addition to Common Stock, or which at
any time shall be issuable or shall have been issued in exchange for or in
replacement of Common Stock or Other Securities, in each case, pursuant to
Section 3 hereof or otherwise in accordance with the terms hereof.
Person: A corporation, an association, a partnership, a limited
liability company, an organization, a business, an individual, a government or
political subdivision thereof or a governmental agency.
Pre-Spin-Off IPO: As defined in the Purchase Agreement.
Purchase Agreement: As defined in the introduction to this Stock
Purchase Right.
Replacement Right: As defined in the Purchase Agreement.
Securities Act: The Securities Act of 1933, as amended, or any similar
federal statute, and the rules and regulations of the Commission thereunder, all
as the same shall be in effect at the time.
Spin-Off: As defined in the Purchase Agreement.
Standstill Agreement: The Standstill Agreement, dated as of the date of
this Stock Purchase Right, among the Company and the Investors.
Stock Purchase Rights: As defined in the introduction to this Stock
Purchase Right.
Termination Date: As defined in the introduction to this Stock Purchase
Right.
Third-Party Sale: As defined in the Purchase Agreement.
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12. REMEDIES. The Company stipulates that the remedies at law of the holder of
this Stock Purchase Right in the event of any default or threatened default by
the Company in the performance of or compliance with any of the terms of this
Stock Purchase Right are not and will not be adequate and that, to the fullest
extent permitted by law, such terms may be specifically enforced by a decree for
the specific performance of any agreement contained herein or by an injunction
against a violation of any of the terms hereof or otherwise.
13. NO RIGHTS OR LIABILITIES AS STOCKHOLDER. Nothing contained in this Stock
Purchase Right shall be construed as conferring upon the holder hereof any
rights as a stockholder of the Company or as imposing any obligation on such
holder to purchase any securities or as imposing any liabilities on such holder
as a stockholder of the Company, whether such obligation or liabilities are
asserted by the Company or by creditors of the Company.
14. NOTICES. Any notice or other communication in connection with this Stock
Purchase Right shall be deemed to be delivered if in writing (or in the form of
a telex or telecopy) addressed as hereinafter provided and if either (x)
actually delivered at said address (evidenced in the case of a telex by receipt
of the correct answerback) or (y) in the case of a letter, three Business Days
shall have elapsed after the same shall have been deposited in the United States
mails, postage prepaid and registered or certified: (a) if to any holder of any
Stock Purchase Right, at the registered address of such holder as set forth in
the register kept at the office of the Company maintained pursuant to Section
10.2(a) hereof; or (b) if to the Company, to the attention of its President at
its office maintained pursuant to Section 10.2(a) hereof; provided, however,
that the purchase of any shares of Common Stock subject to any Stock Purchase
Right shall be effective in the manner provided in Section 1 hereof.
15. MISCELLANEOUS. This Stock Purchase Right and any term hereof may be
changed, waived, discharged or terminated only by an instrument in writing
signed by the party against which enforcement of such change, waiver, discharge
or termination is sought. This Stock Purchase Right shall be construed and
enforced in accordance with and governed by the domestic substantive laws of the
State of Delaware (without giving effect to any choice or conflict of law
provision or rule that would cause the application of the law of any other
jurisdiction). The section headings in this Stock Purchase Right are for
purposes of convenience only and shall not constitute a part hereof.
16. SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, all the
covenants and provisions of this Stock Purchase Right by or for the benefit of
the Company and the registered holders of the Stock Purchase Rights shall inure
to the benefit of their respective successors and assigns.
[NAME OF SUBSIDIARY]
By:_____________________
Title:
12
FORM OF SUBSCRIPTION
[To be executed only upon purchase of Common Stock pursuant to Stock
Purchase Right]
[Name of Subsidiary]:
The undersigned registered holder of the within Stock Purchase Right
hereby irrevocably elects to purchase thereunder, __________/1/ shares of the
Common Stock and herewith makes payment of $ therefor, and requests that the
certificates for such shares be issued in the name of, and delivered to ,
whose address is .
Dated: _________________________________
(Signature must conform in all
respects to name of holder as
specified on the face of Stock Purchase Right)
---------------------------------
(Street Address)
---------------------------------
(City) (State) (Zip Code)
____________________
/1/ Insert here the number of shares called for on the face of this Stock
Purchase Right (or, in the case of a partial purchase, the portion thereof as to
which is being purchased), in either case without making any adjustment for
additional shares of Common Stock or any other stock or other securities or
property or cash which, pursuant to the adjustment provisions of this Stock
Purchase Right, may be delivered upon purchase. In case of a partial purchase, a
new Stock Purchase Right or Stock Purchase Rights will be issued and delivered,
representing the unpurchased portion of the shares of Common Stock subject to
the Stock Purchase Right, to the holder surrendering the Stock Purchase Right.
FORM OF CONVERSION NOTICE
[To be executed only upon Stock Purchase Right]
[Name of Subsidiary]:
The undersigned registered holder of the within Stock Purchase Right
hereby irrevocably converts such Stock Purchase Right with respect to
__________/1/ shares of the Common Stock which such holder would be entitled to
receive upon the conversion thereof, and requests that the certificates for such
shares be issued in the name of, and delivered to , whose address is .
Dated: ____________________________________
(Signature must conform in all
respects to name of holder as
specified on the face of Stock Purchase Right)
------------------------------------
(Street Address)
------------------------------------
(City) (State) (Zip Code)
_______________________
/1/ Insert here the number of shares called for on the face of this Stock
Purchase Right (or, in the case of a partial purchase, the portion thereof as to
which is being purchased), in either case without making any adjustment for
additional shares of Common Stock or any other stock or other securities or
property or cash which, pursuant to the adjustment provisions of this Stock
Purchase Right, may be delivered upon purchase. In case of a partial purchase, a
new Stock Purchase Right or Stock Purchase Rights will be issued and delivered,
representing the unpurchased portion of the shares of Common Stock subject to
the Stock Purchase Right, to the holder surrendering the Stock Purchase Right.
FORM OF ASSIGNEMENT
[To be executed only upon transfer of Stock Purchase Right]
For value received, the undersigned registered holder of the within
Stock Purchase Right hereby sells, assigns and transfers unto the right
represented by such Stock Purchase Right to purchase __________/1/ shares of
Common Stock of [Name of Subsidiary] Inc. to which such Stock Purchase Right
relates, and appoints ____________ Attorney to make such transfer on the books
of [Name of Subsidiary] Inc. maintained for such purpose, with full power of
substitution in the premises.
Dated: _________________________________
(Signature must conform in all
respects to name of holder as
specified on the face of Stock Purchase Right)
---------------------------------
(Street Address)
---------------------------------
(City) (State) (Zip Code)
Signed in the presence of:
-------------------------
-------------------------
/1/ Insert here the number of shares called for on the face of this Stock
Purchase Right (or, in the case of a partial purchase, the portion thereof as to
which is being purchased), in either case without making any adjustment for
additional shares of Common Stock or any other stock or other securities or
property or cash which, pursuant to the adjustment provisions of this Stock
Purchase Right, may be delivered upon purchase. In case of a partial purchase, a
new Stock Purchase Right or Stock Purchase Rights will be issued and delivered,
representing the unpurchased portion of the shares of Common Stock subject to
the Stock Purchase Right, to the holder surrendering the Stock Purchase Right.
