EXHIBIT (C)(5)
Execution Copy
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LOCTITE CORPORATION
and
THE FIRST NATIONAL BANK OF BOSTON, as
Rights Agent
Rights Agreement
Dated as of April 14, 1994
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TABLE OF CONTENTS
Page
Section 1. Certain Definitions . . . . . . . . . . . . . 1
Section 2. Appointment of Rights Agent . . . . . . . . . 9
Section 3. Issue of Right Certificates . . . . . . . . . 9
Section 4. Form of Right Certificate . . . . . . . . . . 11
Section 5. Countersignature and Registration . . . . . . 12
Section 6. Transfer, Split-Up, Combination and
Exchange of Right Certificates;
Mutilated, Destroyed, Lost or
Stolen Right Certificate. . . . . . . . . . . 12
Section 7. Exercise of Rights; Purchase Price;
Expiration Date of Rights . . . . . . . . . . 13
Section 8. Cancellation and Destruction of
Right Certificates. . . . . . . . . . . . . . 16
Section 9. Reservation and Availability of
Common Shares . . . . . . . . . . . . . . . . 16
Section 10. Common Shares Record Date . . . . . . . . . . 17
Section 11. Adjustment of Purchase Price, Number
and Kind of Shares or Number of
Rights. . . . . . . . . . . . . . . . . . . . 18
Section 12. Certificate of Adjusted Purchase Price
or Number of Shares . . . . . . . . . . . . . 27
Section 13. Consolidation, Merger or Sale or Transfer
of Assets or Earning Power. . . . . . . . . . 27
Section 14. Fractional Rights and Fractional Shares . . . 30
Section 15. Rights of Action. . . . . . . . . . . . . . . 31
Section 16. Agreement of Right Holders. . . . . . . . . . 32
Section 17. Right Certificate Holder Not Deemed a
Stockholder . . . . . . . . . . . . . . . . . 32
Section 18. Concerning the Rights Agent . . . . . . . . . 33
Section 19. Merger or Consolidation or Change of
Name of Rights Agent. . . . . . . . . . . . . 33
Section 20. Duties of Rights Agent. . . . . . . . . . . . 34
Section 21. Change of Rights Agent. . . . . . . . . . . . 37
Section 22. Issuance of New Right Certificates. . . . . . 38
Section 23. Redemption and Termination. . . . . . . . . . 38
Section 24. Exchange. . . . . . . . . . . . . . . . . . . 40
Section 25. Notice of Certain Events. . . . . . . . . . . 41
Section 26. Notices . . . . . . . . . . . . . . . . . . . 42
Section 27. Supplements and Amendments. . . . . . . . . . 43
Section 28. Determination and Actions by the Board
of Directors of the Corporation, etc. . . . . 44
Section 29. Successors. . . . . . . . . . . . . . . . . . 44
Section 30. Benefits of this Agreement. . . . . . . . . . 44
Section 31. Severability. . . . . . . . . . . . . . . . . 45
Section 32. Governing Law . . . . . . . . . . . . . . . . 45
Section 33. Counterparts. . . . . . . . . . . . . . . . . 45
Section 34. Descriptive Headings. . . . . . . . . . . . . 45
Signatures. . . . . . . . . . . . . . . . . . 46
Exhibit A-1 - Form of Transferee Agreement
Exhibit A-2 - Form of Transferee Executive Officer's Certificate
Exhibit B - Form of Right Certificate
Exhibit C - Summary of Rights to Purchase Common Shares
Defined Term Cross Reference Sheet
Acquiring Person. . . . . . . . . . . . . . . Section 1(a)
Act . . . . . . . . . . . . . . . . . . . . . Section 1(b)
Adjustment Shares . . . . . . . . . . . . . . Section 11(a)(ii)
Adjusted Number of Shares . . . . . . . . . . Section 11(a)(iii)
Adjusted Purchase Price . . . . . . . . . . . Section 11(a)(iii)
Adverse Person. . . . . . . . . . . . . . . . Section 1(c)
Affiliate . . . . . . . . . . . . . . . . . . Section 1(d)
Agreement . . . . . . . . . . . . . . . . . . Preface
Associate . . . . . . . . . . . . . . . . . . Section 1(e)
Beneficial Owner. . . . . . . . . . . . . . . Section 1(f)
beneficially own. . . . . . . . . . . . . . . Section 1(f)
Business Day. . . . . . . . . . . . . . . . . Section 1(g)
capital stock equivalent. . . . . . . . . . . Section 11(a)(iii)
Close of business . . . . . . . . . . . . . . Section 1(h)
Common Shares . . . . . . . . . . . . . . . . Section 1(i)
Corporation . . . . . . . . . . . . . . . . . Preface
current per share market price. . . . . . . . Section 11(d)(i)
Disinterested Director. . . . . . . . . . . . Section 1(j)
Distribution Date . . . . . . . . . . . . . . Section 1(k)
Distribution Transaction. . . . . . . . . . . Section 1(l)
equivalent common shares. . . . . . . . . . . Section 11(b)
Exchange Act. . . . . . . . . . . . . . . . . Section 1(d)
Exchange Ratio. . . . . . . . . . . . . . . . Section 24(a)
Final Expiration Date . . . . . . . . . . . . Section 7(a)
Grandfathered Stockholder . . . . . . . . . . Section 1(n)
Henkel. . . . . . . . . . . . . . . . . . . . Section 1(o)
Henkel Percentage . . . . . . . . . . . . . . Section 1(p)
Interested Stockholder. . . . . . . . . . . . Section 1(q)
Xxxxxxx Family Group. . . . . . . . . . . . . Section 1(n)
Permitted Offer . . . . . . . . . . . . . . . Section 1(r)
Permitted Transfer. . . . . . . . . . . . . . Section 1(s)
Permitted Transferee. . . . . . . . . . . . . Section 1(t)
Person. . . . . . . . . . . . . . . . . . . . Section 1(u)
Principal Party . . . . . . . . . . . . . . . Section 13(b)
Proration Factor. . . . . . . . . . . . . . . Section 11(a)(iii)
Purchase Price. . . . . . . . . . . . . . . . Section 4(a)
Record Date . . . . . . . . . . . . . . . . . Preface
Redemption Date . . . . . . . . . . . . . . . Section 7(a)
Redemption Price. . . . . . . . . . . . . . . Section 23(a)(i)
Right . . . . . . . . . . . . . . . . . . . . Preface
Right Certificate . . . . . . . . . . . . . . Section 3(a)
Rights Agents . . . . . . . . . . . . . . . . Preface
Rights Agreement. . . . . . . . . . . . . . . Section 3(c)
Section 11(a)(ii) Event . . . . . . . . . . . Section 1(w)
Section 13 Event. . . . . . . . . . . . . . . Section 1(x)
Security. . . . . . . . . . . . . . . . . . . Section 11(d)
Shares Acquisition Date . . . . . . . . . . . Section 1(y)
Subsidiary. . . . . . . . . . . . . . . . . . Section 1(z)
Summary of Rights . . . . . . . . . . . . . . Section 3(b)
then outstanding. . . . . . . . . . . . . . . Section 1(f)(iii)
Trading Day . . . . . . . . . . . . . . . . . Section 11(d)(i)
Transfer. . . . . . . . . . . . . . . . . . . Section 1(aa)
Transferee Agreement. . . . . . . . . . . . . Section 1(c)
Transferee Certificate. . . . . . . . . . . . Section 1(c)
Transfer Percentage . . . . . . . . . . . . . Section 1(bb)
Triggering Event. . . . . . . . . . . . . . . Section 1(cc)
Unaffiliated Director . . . . . . . . . . . . Section 1(dd)
voting securities . . . . . . . . . . . . . . Section 13(a)
RIGHTS AGREEMENT
RIGHTS AGREEMENT, dated as of April 14, 1994 (the
"Agreement"), between Loctite Corporation, a Delaware corporation
(the "Corporation"), and The First National Bank of Boston, a
national banking association (the "Rights Agent").
The Board of Directors of the Corporation has
authorized and declared a dividend of one right (a "Right") for
each Common Share (as hereinafter defined) of the Corporation
outstanding at the close of business on April 25, 1994 (the
"Record Date"), each Right representing the right to purchase one
Common Share, upon the terms and subject to the conditions herein
set forth, and has further authorized and directed the issuance
of one Right with respect to each Common Share that shall become
outstanding between the Record Date and the earliest of the
Distribution Date, the Redemption Date or the Final Expiration
Date (as such terms are hereinafter defined); provided, however,
that Rights may be issued with respect to Common Shares that
shall become outstanding after the Distribution Date and prior to
the earlier of the Redemption Date and the Final Expiration Date
in accordance with the provisions of Section 22 of this
Agreement.
Accordingly, in consideration of the premises and the
mutual agreements herein set forth, the parties hereby agree as
follows:
Section 1. Certain Definitions. For purposes of this
Agreement, the following terms have the meanings indicated:
(a) "Acquiring Person" shall mean any Person who
or which, together with all Affiliates and Associates of such
Person, shall be the Beneficial Owner of 10% or more of the then
outstanding Common Shares (other than as a result of a Permitted
Offer (as hereinafter defined)) or was such a Beneficial Owner at
any time after the date hereof, whether or not such person
continues to be the Beneficial Owner of 10% or more of the
then outstanding Common Shares. Notwithstanding the foregoing,
(A) the term "Acquiring Person" shall not include (i) the
Corporation, (ii) any Subsidiary of the Corporation, (iii)
any employee benefit plan of the Corporation or of any
Subsidiary of the Corporation, (iv) any Person or entity
organized, appointed or established by the Corporation for
or pursuant to the terms of any such plan, or (v) any
Grandfathered Stockholder and (B) no Person (including, without
limitation, any Grandfathered Stockholder) shall become an
"Acquiring Person" (and no Grandfathered Stockholder shall cease
to be a Grandfathered Stockholder):
(i) as a result of the acquisition of Common
Shares by the Corporation which, by reducing the number of
Common Shares outstanding, increases the proportional number
of shares beneficially owned by such Person together with
all Affiliates and Associates of such Person; provided that
if (1) a Person (including, without limitation, any
Grandfathered Stockholder) would become an Acquiring Person
(but for the operation of this subclause (i)) as a result of
the acquisition of Common Shares by the Corporation, and (2)
after such share acquisition by the Corporation, such
Person, or an Affiliate or Associate of such Person, becomes
the Beneficial Owner of any additional Common Shares, then
such Person shall be deemed an Acquiring Person; or
(ii) if (1) within five Business Days after
such Person would otherwise have become an Acquiring Person
(but for the operation of this subclause (ii)), such Person
notifies the Board of Directors that such Person did so
inadvertently, and (2) within two Business Days after such
notification, such Person divests itself of a sufficient
number of Common Shares so that such Person is the
Beneficial Owner of such number of Common Shares that such
Person no longer would be an Acquiring Person.
(b) "Act" shall mean the Securities Act of 1933,
as amended and as in effect on the date of this Agreement.
(c) "Adverse Person" shall mean any Person
declared to be an Adverse Person by a majority of the
Unaffiliated Directors of the Board of Directors of the
Corporation after having determined in its business judgment that
beneficial ownership by such Person of 10% or more of the
outstanding Common Shares would be reasonably likely to
materially adversely affect the Corporation or its stockholders.
In the event that in reliance upon the representations and
warranties of any Person set forth in the Transferee Agreement
for such Person, the Transfer Certificate for such Person and any
other instrument or document delivered to Loctite by such Person,
the Unaffiliated Directors determined that such Person was not an
Adverse Person, the Unaffiliated Directors may at any time
thereafter declare such Person to be an Adverse Person as of the
date of such declaration if the Unaffiliated Directors should at
any time determine that any representation and warranty made by
such Person in its Transferee Agreement, its Transferee
Certificate or any such other document or instrument delivered to
Loctite
by such Person was incorrect at the time that it was made, and
upon such declaration by the Unaffiliated Directors, such Person
shall no longer be deemed to be a Permitted Transferee for any
purpose under this Agreement (including, without limitation, the
definition of Grandfathered Stockholder).
(d) "Affiliate" shall have the meaning ascribed to
such term in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as amended and in
effect on the date of this Agreement (the "Exchange Act").
(e) "Associate" shall have the meaning ascribed to
such term in Rule 12b-2 of the General Rules and Regulations
under the Exchange Act; provided, however, that notwithstanding
anything herein to the contrary, no Person shall be deemed an
Associate of Henkel for any purpose hereof or at any time
hereunder.
(f) 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 to acquire
(whether such right is exercisable immediately or only after
the passage of time) pursuant to any agreement, arrangement
or understanding, or upon the exercise of conversion rights,
exchange rights, rights (other than the Rights), warrants or
options, or otherwise; provided, however, that a Person
shall not be deemed the Beneficial Owner of, or to
beneficially own, securities tendered pursuant to a tender
or exchange offer made by or on behalf of such Person or any
of such Person's Affiliates or Associates until such
tendered securities are accepted for purchase or exchange;
or (B) the right to vote pursuant to any agreement,
arrangement or understanding; provided, however, that a
Person shall not be deemed the Beneficial Owner of, or to
beneficially own, any security if the agreement, arrangement
or understanding to vote such security (1) arises solely
from a revocable proxy or consent given to such Person in
response to a public proxy or consent solicitation made
pursuant to, and in accordance with, the applicable rules
and regulations promulgated under the Exchange Act and (2)
is not also then reportable on Schedule 13D under the
Exchange Act (or any comparable or successor report); or
(iii) which are beneficially owned, directly
or indirectly, by any other Person (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 (other than an agreement by
Henkel to Transfer to a proposed Permitted Transferee those
Common Shares subject to such proposed Permitted Transfer
and customary agreements with and between underwriters and
selling group members with respect to a bona fide public
offering of securities) relating to the acquisition,
holding, voting (except to the extent contemplated by the
proviso to Section l(f)(ii)(B)) or disposing of any
securities of the Corporation.
Notwithstanding anything in this definition of
Beneficial Ownership to the contrary, (A) Henkel shall not be
deemed the Beneficial Owner of, or to beneficially own, any
Common Shares held by any member of the Xxxxxxx Family Group as a
result of the right of first refusal over such Common Shares held
by Henkel until and to the extent that Henkel has exercised its
right of first refusal and purchased such Common Shares; (B) the
phrase "then outstanding", when used with reference to a Person's
Beneficial Ownership of securities of the Corporation, shall mean
the number of such securities then issued and outstanding
together with the number of such securities not then actually
issued and outstanding which such Person would be deemed to own
beneficially hereunder; and (C) the Corporation shall not be
deemed the Beneficial Owner of, or to beneficially own, any
Common Shares held by any member of the Xxxxxxx Family Group as a
result of the right of first refusal over such Common Shares that
may from time to time be held by the Corporation and such Common
Shares shall be deemed issued and outstanding for all purposes
hereunder, in each case, until and to the extent that the
Corporation has exercised its right of first refusal and
purchased such Common Shares.
(g) "Business Day" shall mean any day other than a
Saturday, Sunday or federal holiday.
(h) "Close of business" on any given date shall mean
5:00 P.M., Boston time, on such date; provided, however, that if
such date is not a Business Day it shall mean 5:00 P.M., Boston
time, on the next succeeding Business Day.
(i) "Common Shares" when used with reference to the
Corporation shall mean the shares of Common Stock, par value
$0.01 per share, of the Corporation or, in the event of a
subdivision, combination or consolidation with respect to such
shares of Common Stock, the shares of Common Stock resulting from
such subdivision, combination or consolidation.
"Common Shares" when used with reference to any Person other
than the Corporation shall mean the capital stock (or equity
interest) with the greatest voting power of such other Person or,
if such other Person is a Subsidiary of another Person, the Person
or Persons which ultimately control such first-mentioned Person.
(j) "Disinterested Director" means any director of
the Board of Directors of the Corporation who is neither an officer
or employee of the Corporation nor any Person proposing or
attempting to effect a business combination or similar
transaction with the Corporation (including, without limitation,
a merger, tender offer or exchange offer, sale of substantially
all of the Corporation's assets, or liquidation of the
Corporation's assets), any Affiliate or Associate of such Person
or any other Person acting directly or indirectly on behalf of,
or as a representative of, or in concert with, any such Person,
Affiliate or Associate.
(k) "Distribution Date" shall have the meaning set
forth in Section 3 hereof.
(l) "Distribution Transaction" means any Transfer
of Common Shares by Henkel (i) pursuant to a public offering of
those Common Shares registered under Section 5 of the Securities
Act of 1933, as amended (the "Securities Act"), in connection
with which, each of the underwriters for such public offering
certifies to the Corporation that such Common Shares were widely
distributed in connection with such public offering and that, to
the best of such underwriter's knowledge, (A) no transferee of
such Common Shares in such public offering beneficially owns,
together with the Affiliates and Associates of such transferee
and after giving effect to the sale of such Common Shares in such
public offering, more than 1.0% of the then outstanding Common
Shares and (B) no more than three transferees of such Common
Shares in such public offering beneficially own, in each case
together with the Affiliates and Associates of such transferee
and after giving effect to the sale of such Common Shares in such
public offering, more than 0.5% of the then outstanding Common
Shares; or (ii) pursuant to a broker's transaction made in
compliance with the requirements of Rule 144 promulgated under
the Securities Act and in connection with which, the broker who
effects such broker's transaction certifies to the Corporation
that such Common Shares were widely distributed in connection
with such broker's transaction and, to the best of such broker's
knowledge, (A) no transferee of such Common Shares in such broker's
transaction beneficially owns, together with the Affiliates and
Associates of such transferee and after giving effect to the sale
of such Common Shares in such broker's transaction, more than
1.0% of the then outstanding Common Shares and (B) no more than
three transferees of such Common Shares in such broker's transaction
beneficially own, in each case together with the Affiliates and
Associates of such transferee and after giving effect to the
sale of such Common Shares in such broker's transaction, more
than 0.5% of the then outstanding Common Shares.
(m) "Final Expiration Date" shall have the meaning
set forth in Section 7 hereof.
(n) "Grandfathered Stockholder" shall mean (i) Henkel,
(ii) Xx. Xxxxxx X. Xxxxxxx, Xx. Xxxxx X. Xxxxxxx, Xx. Xxxxxxxxx X.
Xxxxxxx, Xx. Xxxxxxxx X. Xxxxxxx, Xx. Xxxxx X. Xxxxxxx, Xx. Xxxxx
X. Xxxxxxx, Xx. Xxxxxx Xxxxxx, Management I, Limited and
Management II, Limited, as a "group" (as such term is defined or
used under Rule 13d- 5(b) of the General Rules and Regulations
under the Exchange Act) (collectively as such group, the "Xxxxxxx
Family Group") and (iii) any Permitted Transferee; provided,
however, that, except as provided in Section 1(a)(B) hereof, (A)
Henkel shall cease to be a Grandfathered Stockholder at the time
after the date hereof, Henkel, together with all Affiliates of
Henkel, beneficially owns a percentage of the outstanding Common
Shares in excess of the Henkel Percentage then in effect (other
than as a result of a Permitted Offer), (B) the Xxxxxxx Family
Group shall cease to be a Grandfathered Stockholder at the time
after the date hereof any member of the Xxxxxxx Family Group, or
an Affiliate or Associate of any such member of the Xxxxxxx
Family Group, beneficially owns any additional Common Shares
(other than as a result of a stock dividend, a stock split, a
grant by the Corporation pursuant to a directors benefit plan
established by the Corporation of Common Shares or options to
purchase Common Shares (and the exercise thereof) or a Permitted
Offer), and (C) any Permitted Transferee shall cease to be a
Grandfathered Stockholder at the time such Permitted Transferee,
or an Affiliate or Associate of such Permitted Transferee,
beneficially owns any additional Common Shares (other than as a
result of a stock dividend, a stock split or a Permitted Offer).
(o) "Henkel" shall mean Xxxxxx Corporation, a Delaware
corporation.
(p) "Henkel Percentage" shall mean 35% on the date
hereof. From and after the date hereof, the Henkel Percentage
shall be subject to adjustment, as follows: (i) in the event of
any Transfer of Common Shares by Henkel or any of its Affiliates
(other than to an Affiliate of Henkel) by any means other than
a Distribution Transaction, the Henkel Percentage then in effect
shall be reduced by the Transfer Percentage in respect
of such Transfer, (ii) in the event of Transfers of Common
Shares aggregating more than 10% of the outstanding Common
Shares by Henkel or any of its Affiliates by means of
Distribution Transactions, the Henkel Percentage then in
effect shall be reduced by the aggregate Transfer Percentages
in respect of such Transfers aggregating more than 10% of
the outstanding Common Shares and (iii) in the event the
Corporation acquires any Common Shares, the Henkel Percentage
immediately following such acquisition shall be equal to the
greater of (A) the Henkel Percentage immediately prior to
such acquisition and (B) the percentage of the outstanding
Common Shares beneficially owned by Henkel immediately following
such acquisition.
(q) "Interested Stockholder" shall mean any Acquiring
Person or any Affiliate or Associate of an Acquiring Person or
any other Person in which any such Acquiring Person, Affiliate or
Associate has an interest, or any other Person acting directly or
indirectly on behalf of or in concert with any such Acquiring
Person, Affiliate or Associate.
(r) "Permitted Offer" shall mean a tender or exchange
offer for all outstanding Common Shares (A) which is at a price
and on terms determined, prior to the purchase of shares under
such tender or exchange offer, by at least (i) a majority of the
Disinterested Directors and (ii) a majority of all of the members
of the Board of Directors, to be adequate (taking into account
all factors that such directors deem relevant) and otherwise in
the best interests of the Corporation, its stockholders and its
other relevant constituencies (other than the Person or any
Affiliate or Associate thereof on whose basis the offer is being
made) taking into account all factors that such directors may
deem relevant or (B) (i) which remains open for a period of at
least 60 days after the tender or exchange offer has commenced
and (ii) the consummation of which results in the Person on whose
basis the tender or exchange offer is made becoming the
Beneficial Owner of more than 50% of the outstanding Common
Shares.
(s) "Permitted Transfer" means any Transfer of Common
Shares by Henkel, by the Xxxxxxx Family Group as a whole, or by
any Permitted Transferee (i) to any Person that (A) has not been
declared an Adverse Person by the Unaffiliated Directors, (B)
does not beneficially own, after giving effect to such Transfer,
(1) in the case of a Transfer from the Xxxxxxx Family Group or
any Permitted Transferee, any Common Shares other than the Common
Shares transferred by the Xxxxxxx Family Group or such Permitted
Transferee, as applicable, to such Person in such Transfer, or
(2) in the case of a Transfer from Henkel, a percentage of the
then outstanding Common Shares in excess of the lesser of (I)
the Henkel Percentage in effect immediately prior to such
proposed Permitted Transfer and (II) the sum of 0.3% of
the then outstanding Common Shares and the percentage of
the then outstanding Common Shares to be transferred by
Henkel to such Person in such proposed Permitted
Transfer, (C) at least 30 days prior to the consummation of such
Transfer, executes and delivers to the Corporation an agreement,
substantially in the form of Exhibit A-1 attached hereto (a
"Transferee Agreement") and (D) immediately prior to the
consummation of such Transfer, executes and delivers to the
Corporation an executive officer's certificate, substantially in
the form of Exhibit A-2 attached hereto (a "Transferee
Certificate") and (ii) that is consummated on the "Closing Date"
referred to in the Transferee Agreement for such proposed
Permitted Transfer and pursuant to the terms and conditions set
forth in the "Acquisition Agreement" referred to in such
Transferee Agreement.
(t) "Permitted Transferee" means any transferee of
Common Shares pursuant to a Permitted Transfer.
(u) "Person" shall mean any individual, firm,
partnership, corporation, trust, association, joint venture or
other entity, and shall include any successor (by merger or
otherwise) of such entity.
(v) "Redemption Date" shall have the meaning set forth
in Section 7 hereof.
(w) "Section 11(a)(ii) Event" shall mean any event
described in Section 11(a)(ii) hereof.
(x) "Section 13 Event" shall mean any event described
in clause (x), (y) or (z) of Section 13(a) hereof.
(y) "Shares Acquisition Date" shall mean the first date
of public announcement (which, for purposes of this definition,
shall include, without limitation, a report filed pursuant to the
Exchange Act) by the Corporation or an Acquiring Person that an
Acquiring Person has become such.
(z) "Subsidiary" of any Person shall mean any
corporation or other Person of which a majority of the voting
power of the voting equity securities or equity interest is
owned, directly or indirectly, by such Person.
(aa) "Transfer" shall mean any sale, assignment, transfer
or other disposition.
(bb) "Transfer Percentage" means with respect to any
Transfer of Common Shares, the percentage of the then outstanding
Common Shares subject to such Transfer.
(cc) "Triggering Event" shall mean any Section 11(a)(ii)
Event or any Section 13 Event.
(dd) "Unaffiliated Director" means, with respect to any
proposed Permitted Transfer, any director of the Board of
Directors of the Corporation who is neither a nominee or
representative of the proposed transferor in respect of such
Proposed Transfer, or any Affiliate or Associate of such proposed
transferor, nor an officer or employee of the Corporation.
Section 2. Appointment of Rights Agent. The Corporation
hereby appoints the Rights Agent to act as agent for the
Corporation and the holders of the Rights (who, in accordance
with Section 3 hereof, shall prior to the Distribution Date also
be the holders of Common Shares) in accordance with the terms and
conditions hereof, and the Rights Agent hereby accepts such
appointment. The Corporation may from time to time appoint such
co- Rights Agents as it may deem necessary or desirable.
Section 3. Issue of Right Certificates. (a) Until the
earlier of (i) the Shares Acquisition Date or (ii) the close of
business on the tenth day (or such later date as may be
determined by action of the Corporation's Board of Directors)
after the date of the commencement by any Person (other than the
Corporation, any Subsidiary of the Corporation, any employee
benefit plan of the Corporation or of any Subsidiary of the
Corporation or any Person or entity organized, appointed or
established by the Corporation for or pursuant to the terms of
any such plan) of, or of the first public announcement of the
intention of any Person (other than the Corporation, any
Subsidiary of the Corporation, any employee benefit plan of the
Corporation or of any Subsidiary of the Corporation or any Person
or entity organized, appointed or established by the Corporation
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 the
consummation of which would result in any Person becoming an
Acquiring Person (including, in the case of both (i) and (ii),
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 Rights
will be evidenced (subject to the provisions of Section 3(b)
hereof) by the certificates for Common Shares registered in the
names of the holders thereof (which certificates shall also be
deemed to be Right Certificates) and not by separate Right
Certificates, and (y) the right to receive Right Certificates
will be transferable only in connection with the transfer of the
underlying Common Shares (including a transfer to the
Corporation); provided, however, that if a tender offer prior to
the occurrence of a Distribution Date is terminated, then no
Distribution Date shall occur as a result of such tender offer.
As soon as practicable after the Distribution Date, the
Corporation will prepare and execute, the Rights Agent will
countersign, and the Corporation will send or cause to be sent
by first-class, postage-prepaid mail, to each record holder of
Common Shares as of the close of business on the Distribution Date,
at the address of such holder shown on the records of the Corporation,
a Right Certificate, substantially in the form of Exhibit B
hereto (a "Right Certificate"), evidencing one Right for each
Common Share so held. As of and after the Distribution Date, the
Rights will be evidenced solely by such Right Certificates.
(b) As promptly as practicable following the Record
Date, the Corporation will send a copy of a Summary of Rights
to Purchase Common Shares, in substantially the form of
Exhibit C hereto (the "Summary of Rights"), by first-class,
postage-prepaid mail, to each record holder of Common Shares as
of the close of business on the Record Date, at the address of
such holder shown on the records of the Corporation. With respect
to certificates for Common Shares outstanding as of the Record
Date, until the Distribution Date, the Rights will be evidenced
by such certificates registered in the names of the holders
thereof together with a copy of the Summary of Rights attached
thereto. Until the Distribution Date (or the earlier of the
Redemption Date or the Final Expiration Date), the surrender for
transfer of any certificate for Common Shares outstanding on the
Record Date, with or without a copy of the Summary of Rights
attached thereto, shall also constitute the transfer of the
Rights associated with such Common Shares.
(c) Certificates for Common Shares which become outstanding
(including, without limitation, reacquired Common Shares referred
to in the last sentence of this paragraph (c)) after the Record
Date but prior to the earliest of the Distribution Date, and the
Redemption Date or the Final Expiration Date shall be deemed also
to be certificates for Rights, and shall bear the following
legend:
This certificate also evidences and entitles the holder
hereof to certain rights as set forth in a Rights Agreement
between Loctite Corporation and The First National Bank of
Boston, dated as of April 14, 1994 (the "Rights Agreement"), the
terms of which are hereby incorporated herein by reference and a
copy of which is on file at the principal executive offices of
Loctite Corporation. 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.
Loctite Corporation will mail to the holder of this certificate a
copy of the Rights Agreement without charge after receipt of a
written request therefor. Under certain circumstances set forth
in the Rights
Agreement, Rights issued to, or held by, any Person who is, was
or becomes an Acquiring Person or an Affiliate or Associate
thereof (as defined in the Rights Agreement) and certain related
persons, whether currently held by or on behalf of such Person or
by any subsequent holder, may become null and void.
With respect to such certificates containing the foregoing
legend, until the Distribution Date, the Rights associated with
the Common Shares represented by such certificates shall be
evidenced by such certificates alone, and the surrender for
transfer of any such certificate shall also constitute the
transfer of the Rights associated with the Common Shares
represented thereby. In the event that the Corporation purchases
or acquires any Common Shares after the Record Date but prior to
the Distribution Date, any Rights associated with such Common
Shares shall be deemed canceled and retired so that the
Corporation shall not be entitled to exercise any Rights
associated with the Common Shares which are no longer
outstanding.
Section 4. Form of Right Certificate. (a) The Right
Certificates (and the forms of election to purchase and of
assignment to be printed on the reverse thereof) shall be
substantially in the form set forth in Exhibit B hereto and may
have such marks of identification or designation and such
legends, summaries or endorsements printed thereon as the
Corporation 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 Right Certificates shall entitle the
holders thereof to purchase such number of Common Shares as shall
be set forth therein at the price per Common Share set forth
therein (the "Purchase Price"), but the amount and type of
securities purchasable upon the exercise of each Right and the
Purchase Price thereof shall be subject to adjustment as provided
herein.
(b) Any Right Certificate issued pursuant to Section 3(a) or
Section 22 hereof that represents Rights which are null and void
pursuant to Section 7(e) of this Agreement and any Right
Certificate issued pursuant to Section 6 or Section 11 hereof
upon transfer, exchange, replacement or adjustment of any other
Right Certificate referred to in this sentence, shall contain (to
the extent feasible) the following legend:
The Rights represented by this Right Certificate are or were
beneficially owned by a Person who was or became an Acquiring
Person or an Affiliate or Associate of an Acquiring Person (as
such terms are defined in the Rights Agreement). Accordingly,
this Right Certificate and the Rights represented hereby are null
and void.
Provisions of Section 7(e) of this Rights Agreement shall be
operative whether or not the foregoing legend is contained on any
such Right Certificate.
Section 5. Countersignature and Registration. The Right
Certificates shall be executed on behalf of the Corporation by
its Chairman of the Board, its Chief Executive Officer, its
President, any of its Vice Presidents, or its Treasurer, either
manually or by facsimile signature, shall have affixed thereto
the Corporation's seal or a facsimile thereof, and shall be
attested by the Secretary or an Assistant Secretary of the
Corporation, either manually or by facsimile signature. The Right
Certificates shall be countersigned by the Rights Agent and shall
not be valid for any purpose unless so countersigned. In case any
officer of the Corporation who shall have signed any of the Right
Certificates shall cease to be such officer of the Corporation
before countersignature by the Rights Agent and issuance and
delivery by the Corporation, such Right Certificates may
nevertheless be countersigned by the Rights Agent and issued and
delivered by the Corporation with the same force and effect as
though the person who signed such Right Certificates had not
ceased to be such officer of the Corporation; and any Right
Certificate may be signed on behalf of the Corporation by any
person who, at the actual date of the execution of such Right
Certificate, shall be a proper officer of the Corporation to sign
such Right Certificate, although at the date of the execution of
this Rights Agreement any such person was not such an officer.
Following the Distribution Date, the Rights Agent will keep
or cause to be kept, at its office designated as the appropriate
place for surrender of such Right Certificate or transfer, books
for registration and transfer of the Right Certificates issued
hereunder. Such books shall show the names and addresses of the
respective holders of the Right Certificates, the number of
Rights evidenced on its face by each of the Right Certificates
and the certificate number and the date of each of the Right
Certificates.
Section 6. Transfer, Split-Up, Combination and Exchange of
Right Certificates; Mutilated, Destroyed, Lost or Stolen Right
Certificate. Subject to the provisions of Section 4(b), Section
7(e) and 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 earlier of the Redemption Date or
the Final Expiration Date, any Right Certificate or Right
Certificates may be transferred, split up, combined or exchanged
for another Right Certificate or Right Certificates, entitling
the registered holder to purchase a like number of Common Shares
as the Right Certificate or Right Certificates surrendered then
entitled such holder (or former holder in the case of a transfer)
to purchase. Any registered holder desiring to transfer, split
up, combine or exchange any Right Certificate or Right
Certificates shall make such request in writing delivered to the
Rights Agent, and shall surrender the Right Certificate or Right
Certificates to be transferred, split up, combined or exchanged
at the office of the Rights Agent designated for such purpose.
Neither the Rights Agent nor the Corporation shall be obligated
to take any action whatsoever with respect to the transfer of any
such surrendered Right Certificate until the registered holder
shall have completed and signed the certificate contained in the
form of assignment on the reverse side of such Right Certificate
and shall have provided such additional evidence of the identity
of the Beneficial Owner (or former Beneficial Owner) or
Affiliates or Associates thereof as the Corporation shall
reasonably request. Thereupon the Rights Agent shall, subject to
Section 4(b), Section 7(e) and Section 14 hereof, countersign and
deliver to the Person entitled thereto a Right Certificate or
Right Certificates, as the case may be, as so requested. The
Corporation 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 Right
Certificates.
Upon receipt by the Corporation and the Rights Agent of
evidence reasonably satisfactory to them of the loss, theft,
destruction or mutilation of a Right Certificate, and, in case of
loss, theft or destruction, of indemnity or security reasonably
satisfactory to them, and, at the Corporation's request,
reimbursement to the Corporation and the Rights Agent of all
reasonable expenses incidental thereto, and upon surrender to the
Rights Agent and cancellation of the Right Certificate if
mutilated, the Corporation will make and deliver a new Right
Certificate of like tenor to the Rights Agent for
countersignature and delivery to the registered holder in lieu of
the Right Certificate so lost, stolen, destroyed or mutilated.
Section 7. Exercise of Rights; Purchase Price; Expiration
Date of Rights. (a) Subject to Section 7(e) hereof, the
registered holder of any Right Certificate may exercise the
Rights evidenced thereby (except as otherwise provided herein) in
whole or in part at any time after the Distribution Date upon
surrender of the Right Certificate, with
the form of election to purchase and the certificate on the
reverse side thereof duly executed, to the Rights Agent at the
principal office or offices of the Rights Agent designated for
such purpose, together with payment of the aggregate Purchase
Price for the total number of Common Shares (or other securities,
as the case may be) as to which such surrendered Rights are
exercised, at or prior to the earliest of (i) the close of
business on April 14, 2004 (the "Final Expiration Date"), (ii)
the time at which the Rights are redeemed as provided in Section
23 hereof (the "Redemption Date") or (iii) the consummation of a
transaction contemplated by Section 13(d) hereof.
(b) The Purchase Price for each Common Share pursuant
to the exercise of a Right shall initially be $175.00, shall be
subject to adjustment from time to time as provided in Sections 11
and 13(a) hereof and shall be payable in accordance with paragraph
(c) below.
(c) Upon receipt of a Right Certificate representing
exercisable Rights, with the form of election to purchase and the
certificate duly executed, accompanied by payment of the Purchase
Price for the Common Shares (or other securities, as the case may
be) to be purchased and an amount equal to any applicable
transfer tax required to be paid by the holder of such Right
Certificate in accordance with Section 6 hereof by certified
check, cashier's check or money order payable to the order of the
Corporation, the Rights Agent shall thereupon promptly (i) (A)
requisition from any transfer agent of the Common Shares
certificates for the number of Common Shares to be purchased and
the Corporation hereby irrevocably authorizes its transfer agent
to comply with all such requests, or (B) if the Corporation, in
its sole discretion, shall have elected to deposit the Common
Shares issuable upon exercise of the Rights hereunder into a
depositary, requisition from the depositary agent depositary
receipts representing such number of Common Shares as are to be
purchased (in which case certificates for the Common Shares
represented by such receipts shall be deposited by the transfer
agent with the depositary agent) and the Corporation will direct
the depositary agent to comply with such requests, (ii) when
appropriate, requisition from the Corporation the amount of cash
to be paid in lieu of issuance 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 Right Certificate,
registered in such name or names as may be designated by such
holder, and (iv) when appropriate, after receipt thereof, deliver
such cash to or upon the order of the registered holder of such
Right Certificate. In the event that the Corporation is obligated
to issue other securities of the Corporation pursuant to Section
11(a) hereof, the Corporation will make all arrangements
necessary so that such other securities 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 Right Certificate to the registered holder thereof
after imprinting, stamping or otherwise indicating thereon that
the rights represented by such Right 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
Right Certificate were so exercised, the Rights Agent shall
indicate on the Right 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 Right
Certificate shall exercise less than all the Rights evidenced thereby,
a new Right Certificate evidencing Rights equivalent to the Rights
remaining unexercised shall be issued by the Rights Agent to the
registered holder of such Right Certificate or to his duly
authorized assigns, subject to the provisions of Section 14
hereof, or the Rights Agent shall place an appropriate notation
on the Right Certificate with respect to those Rights exercised.
(e) Notwithstanding anything in this Agreement to
the contrary, from and after the first occurrence of a Section
11(a)(ii) Event, any Rights beneficially owned by (i) an
Acquiring Person or an Affiliate or Associate of an Acquiring
Person, (ii) a transferee of an Acquiring Person (or of any
Affiliate or Associate thereof) who becomes a transferee after
the Acquiring Person becomes such, or (iii) a transferee of an
Acquiring Person (or of any Affiliate or Associate thereof) 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 holders of equity interests in such Acquiring
Person or to any Person with whom the Acquiring Person has a
continuing agreement, arrangement or understanding regarding the
transferred Rights or (B) a transfer which the Board of Directors
of the Corporation has determined is part of a plan, arrangement
or understanding which has as a primary purpose or effect the
avoidance of this Section 7(e), shall become null and void
without any further action and no holder of such Rights shall
have any rights whatsoever with respect to such Rights, whether
under any provision of this Agreement or otherwise. The
Corporation shall use all reasonable efforts to insure that the
provisions of this Section 7(e) and Section 4(b) hereof are
complied with, but shall have no liability to any holder of Right
Certificates or other Person as a result of its failure 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 Corporation shall be
obligated to undertake any action with respect to a registered
holder upon the occurrence of any purported exercise as set forth
in this Section 7 unless such registered holder shall have (i)
completed and signed the certificate contained in the form of
election to purchase set forth on the reverse side of the Right
Certificate surrendered for such exercise, and (ii) provided such
additional evidence of the identity of the Beneficial Owner (or
former Beneficial Owner) or Affiliates or Associates thereof as
the Corporation shall reasonably request.
Section 8. Cancellation and Destruction of Right
Certificates. All Right Certificates surrendered for the purpose
of exercise, transfer, split up, combination or exchange shall,
if surrendered to the Corporation or to 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 Right Certificates shall be issued in lieu thereof
except as expressly permitted by any of the provisions of this
Rights Agreement. The Corporation shall deliver to the Rights
Agent for cancellation and retirement, and the Rights Agent shall
so cancel and retire, any other Right Certificate purchased or
acquired by the Corporation otherwise than upon the exercise
thereof. The Rights Agent shall deliver all canceled Right
Certificates to the Corporation, or shall, at the written request
of the Corporation, destroy such canceled Right Certificates, and
in such case shall deliver a certificate of destruction thereof
to the Corporation.
Section 9. Reservation and Availability of Common Shares.
The Corporation covenants and agrees that at all times prior to
the occurrence of a Section 11(a)(ii) Event it will cause to be
reserved and kept available out of its authorized and unissued
Common Shares, or any authorized and issued Common Shares held in
its treasury, the number of Common Shares that will be sufficient
to permit the exercise in full of all outstanding Rights and,
after the occurrence of a Section 11(a)(ii) Event, shall, to the
extent reasonably practicable, so reserve and keep available a
sufficient number of Common Shares (and/or other securities)
which may be required to permit the exercise in full of the
Rights pursuant to this Agreement.
So long as the Common Shares (or other securities, as the
case may be) issuable upon the exercise of the Rights may be
listed on any national securities exchange, the Corporation
shall use its best efforts to cause, from and after such time as
the Rights become exercisable, all shares reserved for such
issuance to be listed on such exchange upon official notice of
issuance upon such exercise.
The Corporation covenants and agrees that it will take all
such action as may be necessary to ensure that all Common Shares
(or other securities, as the case may be) delivered upon exercise
of Rights shall, at the time of delivery of the certificates for
such shares or other securities (subject to payment of the
Purchase Price), be duly and validly authorized and issued and
fully paid and non-assessable shares or securities.
The Corporation further covenants and agrees that it will
pay when due and payable any and all U.S. federal and state
transfer taxes and charges which may be payable in respect of the
issuance or delivery of the Right Certificates or of any Common
Shares (or other securities, as the case may be) upon the
exercise of Rights. The Corporation shall not, however, be
required to pay any transfer tax which may be payable in respect
of any transfer or delivery of Right Certificates to a person
other than, or the issuance or delivery of certificates or
depositary receipts for the Common Shares (or other securities,
as the case may be) in a name other than that of, the registered
holder of the Right Certificate evidencing Rights surrendered for
exercise, or to issue or to deliver any certificates or
depositary receipts for Common Shares (or other securities, as
the case may be) upon the exercise of any Rights, until any such
tax shall have been paid (any such tax being payable by the
holder of such Right Certificate at the time of surrender) or
until it has been established to the Corporation's reasonable
satisfaction that no such tax is due.
The Corporation shall use its best efforts to (i) file, as
soon as practicable following the Shares Acquisition Date (or, if
required by law, at such earlier time following the Distribution
Date as so required), a registration statement under the Act,
with respect to 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 and the rules and regulations thereunder)
until the date of the expiration of the rights provided by
Section 11(a)(ii). The Corporation will also take such action as
may be appropriate under the blue sky laws of the various states.
Section 10. Common Shares Record Date. Each person in whose
name any certificate for Common Shares (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 Common Shares (or other securities, as
the case may be) represented thereby on, and such certificate
shall be dated, the date upon which the Right Certificate
evidencing such Rights was duly surrendered and payment of the
Purchase Price (and any applicable transfer taxes) was made;
provided, however, that, if the date of such surrender and
payment is a date upon which the Common Shares (or other
securities, as the case may be) transfer books of the Corporation
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 Shares (or
other securities, as the case may be) transfer books of the
Corporation are open.
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 Corporation shall at any time
after the date of this Agreement (A) declare a dividend on the Common
Shares payable in Common Shares, (B) subdivide the outstanding
Common Shares, (C) combine the outstanding Common Shares into a
smaller number of Common Shares or (D) issue any shares of its
capital stock in a reclassification of the Common Shares
(including any such reclassification in connection with a
consolidation or merger in which the Corporation is the
continuing or surviving corporation), except as otherwise
provided in this Section 11(a) and 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 capital stock 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 capital stock which, if
such Right had been exercised immediately prior to such date and
at a time when the Common Shares transfer books of the
Corporation were open, such holder would have owned upon such
exercise and been entitled to receive by virtue of such dividend,
subdivision, combination or reclassification; provided, however,
that in no event shall the consideration to be paid upon the exercise
of one Right be less than the aggregate par value of the shares of
capital stock of the Corporation issuable upon exercise of one Right.
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, alone or together
with its Affiliates and Associates, shall become an Acquiring Person,
then proper provision shall be made so that each holder of a Right
(except as provided below and in Section 7(e) hereof) shall, for
a period of 60 days after the later of the occurrence of any such
event or the effective date of an appropriate registration
statement under the Act pursuant to Section 9 hereof, have a
right to receive, upon exercise thereof at a price equal to the
then current Purchase Price, in accordance with the terms of this
Agreement, such number of Common Shares as shall equal the result
obtained by (x) multiplying the then current Purchase Price by
the then number of Common Shares for which a Right was
exercisable immediately prior to the first occurrence of a
Section 11(a)(ii) Event, and dividing that product by (y) 50% of
the then current per share market price of the Corporation's
Common Shares (determined pursuant to Section 11(d) hereof) on
the date of such first occurrence (such number of shares being
referred to as the "Adjustment Shares"); provided, however, that
if the transaction that would otherwise give rise to the
foregoing adjustment is also subject to the provisions of Section
13 hereof, then only the provisions of Section 13 hereof shall
apply and no adjustment shall be made pursuant to this Section
11(a)(ii).
(iii) In the event that there shall not be
sufficient treasury shares or authorized but unissued (and un-
reserved) Common Shares to permit the exercise in full of the Rights
in accordance with the foregoing subparagraph (ii) and the Rights
become so exercisable, notwithstanding any other provision of
this Agreement, to the extent necessary and permitted by
applicable law, each Right shall thereafter represent the right
to receive, upon exercise thereof at the then current Purchase
Price in accordance with the terms of this Agreement, (x) a
number of (or fractions of) Common Shares (up to the maximum
number of Common Shares which may permissibly be issued) and (y)
a number of (or fractions of) other equity securities of the
Corporation (or, in the discretion of the Board of Directors of
the Corporation, debt) which the Board of Directors of the
Corporation has determined to have the same aggregate current
market value (determined pursuant to Section 11(d)(i) and (ii)
hereof, to the extent applicable) as one Common Share (such
number of (or fractions of) Common Shares (or other equity
securities or debt of the Corporation) being referred to as a
"capital stock equivalent"), equal in the aggregate to the number
of Adjustment Shares; provided, however, if sufficient Common
Shares and/or capital stock equivalents are unavailable, then the
Corporation shall, to the extent permitted by applicable
law, take all such action as may be necessary to authorize
additional Common Shares or capital stock equivalents for
issuance upon exercise of the Rights, including the calling of a
meeting of stockholders; and provided, further, that if the
Corporation is unable to cause sufficient Common Shares and/or
capital stock equivalents to be available for issuance upon
exercise in full of the Rights, then each Right shall thereafter
represent the right to receive the Adjusted Number of Shares upon
exercise at the Adjusted Purchase Price (as such terms are
hereinafter defined). As used herein, the term "Adjusted Number
of Shares" shall be equal to that number of (or fractions of)
Common Shares (and/or capital stock equivalents) equal to the
product of (x) the number of Adjustment Shares and (y) a
fraction, the numerator of which is the number of Common Shares
(and/or capital stock equivalents) available for issuance upon
exercise of the Rights and the denominator of which is the
aggregate number of Adjustment Shares otherwise issuable upon
exercise in full of all Rights (assuming there were a sufficient
number of Common Shares available) (such fraction being referred
to as the "Proration Factor"). The "Adjusted Purchase Price"
shall mean the product of the Purchase Price and the Proration
Factor. The Board of Directors of the Corporation may, but shall
not be required to, establish procedures to allocate the right to
receive Common Shares and capital stock equivalents upon exercise
of the Rights among holders of Rights.
(b) In case the Corporation shall fix a record date
for the issuance of rights (other than the Rights), options or
warrants to all holders of Common Shares entitling them (for a period
expiring within 45 calendar days after such record date) to
subscribe for or purchase Common Shares (or shares having the
same rights and privileges as the Common Shares ("equivalent
common shares")) or securities convertible into Common Shares or
equivalent common shares at a price per Common Share or
equivalent common share (or having a conversion price per share,
if a security convertible into Common Shares or equivalent common
shares) less than the then current per share market price of the
Common Shares (as determined pursuant to Section 11(d) hereof) 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 Common Shares
outstanding on such record date plus the number of Common Shares
which the aggregate offering price of the total number of Common
Shares and/or equivalent common shares so to be offered (and/or
the aggregate initial conversion price of the convertible
securities so to be offered) would purchase at such current per
share market price, and the denominator of which shall be the
number of Common Shares outstanding on such record date plus the
number of additional Common Shares and/or
equivalent common shares to be offered for subscription or
purchase (or into which the convertible securities so to be
offered are initially convertible); provided, however, that in no
event shall the consideration to be paid upon the exercise of one
Right be less than the aggregate par value of the shares of
capital stock of the Corporation issuable upon exercise of one
Right. 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 determined in good
faith by the Board of Directors of the Corporation, whose
determination shall be described in a statement filed with the
Rights Agent and shall be binding on the Rights Agent. Common
Shares owned by or held for the account of the Corporation 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,
options 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 Corporation shall fix a record date
for the making of a distribution to all holders of the Common
Shares (including any such distribution made in connection with a
consolidation or merger in which the Corporation is the
continuing or surviving corporation) of evidences of indebtedness
or assets (other than a regular quarterly cash dividend or a
dividend payable in Common Shares) or subscription rights or
warrants (excluding those referred to in Section 11(b) hereof),
the Purchase Price to be in effect after such record date shall
be determined by multiplying the Purchase Price in effect
immediately prior to such record date by a fraction, the
numerator of which shall be the then current per share market
price (as determined pursuant to Section 11(d) hereof) of the
Common Shares on such record date, less the fair market value (as
determined in good faith by the Board of Directors of the
Corporation, whose determination shall be described in a
statement filed with the Rights Agent and shall be binding on the
Rights Agent) of the portion of the assets or evidences of
indebtedness so to be distributed or of such subscription rights
or warrants applicable to one Common Share and the denominator of
which shall be such current per share market price of the Common
Shares; provided, however, that in no event shall the
consideration to be paid upon the exercise of one Right be less
than the aggregate par value of the shares of capital stock of
the Corporation to be issued upon exercise of one Right. 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 again be adjusted to be the
Purchase Price which would then be in effect if such record date
had not been fixed.
(d)(i) For the purpose of any computation hereunder,
the "current per share market price" of any security (a "Security"
for the purpose of this Section 11(d)(i)) on any date shall be
deemed to be the average of the daily closing prices per share of
such Security 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 per share
market price of the Security is determined during a period
following the announcement by the issuer of such Security of (A)
a dividend or distribution on such Security payable in shares of
such Security or securities convertible into such shares, or (B)
any subdivision, combination or reclassification of such Security
and prior to the expiration of thirty (30) Trading Days 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 per share market price shall
be appropriately adjusted to reflect the current market price per
share equivalent of such Security. 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 Security is 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 Security is listed or admitted to trading or, if the
Security is not listed or admitted to trading on any national
securities exchange, the last quoted price or, if not so quoted,
the average of the high bid and low asked prices in the
over-the-counter market, as reported by the National Association
of Securities Dealers, Inc. Automated Quotations System
("NASDAQ") or such other system then in use, or, if on any such
date the Security is not quoted by any such organization, the
average of the closing bid and asked prices as furnished by a
professional market maker making a market in the Security
selected by the Board of Directors of the Corporation. If on any
such date no such market maker is making a market in the
Security, the fair value of the Security on such date as
determined in good faith by the Board of Directors of the
Corporation shall be used. The term "Trading Day" shall mean a
day on which the principal national securities exchange on which
the Security is listed or admitted to trading is open for the
transaction of business or, if the Security is not listed or
admitted to trading on any national securities exchange, a
Business Day.
(ii) For the purpose of any computation here-
under, the "current per share market price" of the Common
Shares shall be determined in accordance with the method set
forth in Section 11(d)(i). If the Common Shares are not publicly
traded, the "current per share market price" of the Common Shares
shall mean the fair value per share as determined in good faith
by the Board of Directors of the Corporation, whose determination
shall be described in a statement filed with the Rights Agent and
shall be binding on the Rights Agent.
(e) Notwithstanding anything herein to the contrary,
no adjustment in the Purchase Price shall be required unless such
adjustment would require an increase or decrease of at least 1%
in the Purchase Price; provided, however, that any adjustments
which by reason of this Section 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 hundred thousandth of a
Common Share or thousandth of any other share or security 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 Final
Expiration Date.
(f) If as a result of an adjustment made pursuant to
Section 11(a)(ii) or Section 13(a) hereof, the holder of any Right
thereafter exercised shall become entitled to receive any shares
of capital stock of the Corporation other than Common Shares,
thereafter the number of 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 with respect to the Common Shares contained in Section
11(a) through (c), inclusive, and the provisions of Sections 7,
9, 10, 13 and 14 with respect to the Common Shares shall apply on
like terms to any such other shares.
(g) All Rights originally issued by the Corporation
subsequent to any adjustment made to the Purchase Price hereunder
shall evidence the right to purchase, at the adjusted Purchase
Price, the number of Common Shares purchasable from time to time
hereunder upon exercise of the Rights, all subject to further
adjustment as provided herein.
(h) Unless the Corporation 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 Common Shares (calculated to the nearest
thousandth of a Common Share) obtained by (i) multiplying
(x) the number of Common Shares covered by a Right immediately
prior to this adjustment by (y) the Purchase Price in effect
immediately prior to such adjustment of the Purchase Price and
(ii) dividing the product so obtained by the Purchase Price
in effect immediately after such adjustment of the Purchase Price.
(i) The Corporation may elect on or after the date
of any adjustment of the Purchase Price to adjust the number of
Rights, in lieu of any adjustment in the number of Common Shares
purchasable upon the exercise of a Right. Each of the Rights
outstanding after such adjustment of the number of Rights shall
be exercisable for the number of Common Shares 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 one
thousandth) obtained by dividing the Purchase Price in effect
immediately prior to adjustment of the Purchase Price by the
Purchase Price in effect immediately after adjustment of the
Purchase Price. The Corporation shall make a public announcement
of its election to adjust the number of Rights, indicating the
record date for the adjustment, and, if known at the time, the
amount of the adjustment to be made. This record date may be the
date on which the Purchase Price is adjusted or any day
thereafter, but, if the Right Certificates have been issued,
shall be at least ten (10) days later than the date of the public
announcement. If Right Certificates have been issued, upon each
adjustment of the number of Rights pursuant to this Section
11(i), the Corporation shall, as promptly as practicable, cause
to be distributed to holders of record of Right Certificates on
such record date Right Certificates evidencing, subject to
Section 14 hereof, the additional Rights to which such holders
shall be entitled as a result of such adjustment, or, at the
option of the Corporation, shall cause to be distributed to such
holders of record in substitution and replacement for the Right
Certificates held by such holders prior to the date of
adjustment, and upon surrender thereof, if required by the
Corporation, new Right Certificates evidencing all the Rights to
which such holders shall be entitled after such adjustment. Right
Certificates so to be distributed shall be issued, executed and
countersigned in the manner provided for herein and shall be
registered in the names of the holders of record of Right
Certificates on the record date specified in the public
announcement.
(j) Irrespective of any adjustment or change in the
Purchase Price or the number of Common Shares issuable upon the
exercise of the Rights, the Right Certificates theretofore and
thereafter issued may continue to express the Purchase Price and
the number of Common Shares which were expressed in the initial Right
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 number of Common Shares or other securities issuable upon
exercise of the Rights, the Corporation shall take any corporate
action which may, in the opinion of its counsel, be necessary in
order that the Corporation may validly and legally issue such
number of fully paid and non-assessable Common Shares or other
securities 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 Corporation may elect to
defer until the occurrence of such event the issuance to the
holder of any Right exercised after such record date the Common
Shares or other securities of the Corporation, if any, issuable
upon such exercise over and above the Common Shares or other
securities of the Corporation, if any, issuable upon exercise on
the basis of the Purchase Price in effect prior to such
adjustment; provided, however, that the Corporation 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) Notwithstanding anything in this Section 11
to the contrary, the Corporation 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 it in its sole discretion shall determine to be
advisable in order that (i) any consolidation or subdivision of
the Common Shares, (ii) issuance wholly for cash of Common Shares
at less than the current market price, (iii) issuance wholly for
cash of Common Shares or securities which by their terms are
convertible into or exchangeable for Common Shares, (iv) stock
dividends or (v) issuance of rights, options or warrants referred
to in this Section 11, hereafter made by the Corporation to
holders of its Common Shares shall not be taxable to such
stockholders.
(n) The Corporation covenants and agrees that
it shall not, at any time after the Distribution Date, (i)
consolidate with any other Person (other than a Subsidiary of
the Corporation in a transaction which does not violate
Section 11(o) hereof), (ii) merge with or into any other Person
(other than a Subsidiary of the Corporation in a transaction
which does not violate Section 11(o) hereof), or (iii) sell
or transfer (or permit any Subsidiary to sell or transfer),
in one transaction, or a series of related transactions, assets
or earning power aggregating more than 50% of the assets or
earning power of the Corporation and its Subsidiaries (taken
as a whole) to any other Person or Persons (other than the
Corporation and/or any of its Subsidiaries in one or more
transactions each of which does not violate Section 11(o)
hereof), if (x) at the time of or immediately after such
consolidation, merger, sale or transfer there are any charter or
by-law provisions or any rights, warrants or other instruments or
securities outstanding or agreements in effect or other actions
taken, which would materially diminish or otherwise eliminate the
benefits intended to be afforded by the Rights or (y) prior to,
simultaneously with or immediately after such consolidation,
merger or sale, the stockholders of the Person who constitutes,
or would constitute, the "Principal Party" for purposes of
Section 13(a) hereof shall have received a distribution of Rights
previously owned by such Person or any of its Affiliates and
Associates. The Corporation shall not consummate any such
consolidation, merger, sale or transfer unless prior thereto the
Corporation and such other Person shall have executed and
delivered to the Rights Agent a supplemental agreement evidencing
compliance with this Section 11(n).
(o) The Corporation covenants and agrees that, after
the Distribution Date, it will not, except as permitted by Section
23 or Section 27 hereof, take (or permit any Subsidiary to take) any
action the purpose of which is to, or if at the time such action
is taken it is reasonably foreseeable that the effect of such
action is to, materially diminish or otherwise eliminate the
benefits intended to be afforded by the Rights.
(p) Notwithstanding anything in this Agreement to
the contrary, in the event that at any time after the date of this
Agreement and prior to the Distribution Date, the Corporation
shall (i) declare or pay any dividend on the Common Shares
payable in Common Shares or (ii) effect a subdivision,
combination or consolidation of the Common Shares (by
reclassification or otherwise than by payment of dividends in
Common Shares) into a greater or lesser number of Common Shares,
then in any such case, the number of Rights associated with each
Common Share then outstanding, or issued or delivered thereafter
but prior to the Distribution Date, shall be proportionately
adjusted so that the number of Rights thereafter associated with
each Common Share following any such event shall equal the result
obtained by multiplying the number of Rights associated with each
Common Share immediately prior to such event by a fraction the
numerator of which shall be the total number of Common Shares
outstanding immediately prior to the occurrence of the event and
the denominator of which shall be the total number of Common
Shares outstanding immediately following the occurrence of such
event. The adjustments provided for in this Section 11(p) shall
be made successively whenever such a dividend is declared or paid
or such a subdivision, combination or consolidation is effected.
(q) The exercise of Rights under Section 11(a)(ii)
shall only result in the loss of rights under Section 11(a)(ii) to
the extent so exercised and shall not otherwise affect the rights
represented by the 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 or 13 hereof, the Corporation shall promptly (a) prepare a
certificate setting forth such adjustment, and a brief statement
of the facts accounting for such adjustment, (b) file with the
Rights Agent and with each transfer agent for the Common Shares a
copy of such certificate and (c) mail a brief summary thereof to
each holder of a Right 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 and
shall not be deemed to have knowledge of such adjustment unless
and until it shall have received such certificate.
Section 13. Consolidation, Merger or Sale or Transfer of
Assets or Earning Power. (a) In the event that, on or following
the Shares Acquisition Date, directly or indirectly, (x) the
Corporation shall consolidate with, or merge with and into, any
Interested Stockholder, or if in such merger or consolidation all
holders of Common Shares are not treated alike, any other Person,
(y) the Corporation shall consolidate with, or merge with, any
Interested Stockholder, or if in such merger or consolidation all
holders of Common Shares are not treated alike, any other Person,
and the Corporation shall be the continuing or surviving
corporation of such consolidation or merger (other than, in a
case of any transaction described in (x) or (y), a merger or
consolidation which would result in all of the securities
generally entitled to vote in the election of directors ("voting
securities") of the Corporation outstanding immediately prior
thereto continuing to represent (either by remaining outstanding
or by being converted into securities of the surviving entity)
all of the voting securities of the Corporation or such surviving
entity outstanding immediately after such merger or consolidation
and the holders of such securities not having changed as a result
of such merger or consolidation), or (z) the Corporation shall
sell or otherwise transfer (or one or more of its Subsidiaries shall
sell or otherwise transfer), in one transaction or a series of
related transactions, assets or earning power aggregating more than
50% of the assets or earning power of the Corporation and its Subsid-
iaries (taken as a whole) to any Interested Stockholder or Stock-
holders or if in such transaction all holders of Common Shares are not
treated alike, any other Person (other than the Corporation or any
Subsidiary of the Corporation in one or more transactions each of
which does not violate Section 11(o) hereof), then, and in each
such case (except as provided in Section 13(d) hereof), proper
provision shall be made so that (i) each holder of a Right,
except as provided in Section 7(e) hereof, shall thereafter have
the right to receive, upon the exercise thereof at a price equal
to the then current Purchase Price, in accordance with the terms
of this Agreement and in lieu of Common Shares, such number of
freely tradeable Common Shares of the Principal Party (as
hereinafter defined), not subject to any liens, encumbrances,
rights of first refusal or other adverse claims, as shall equal
the result obtained by (A) multiplying the then current Purchase
Price by the number of Common Shares for which a Right is then
exercisable (without taking into account any adjustment
previously made pursuant to Section 11(a)(ii)) and dividing that
product by (B) 50% of the then current per share market price of
the Common Shares of such Principal Party (determined pursuant to
Section 11(d) hereof) on the date of consummation of such Section
13 Event; (ii) such Principal Party shall thereafter be liable
for, and shall assume, by virtue of such Section 13 Event, all
the obligations and duties of the Corporation pursuant to this
Agreement; (iii) the term "Corporation" shall thereafter be
deemed to refer to such Principal Party, it being specifically
intended that the provisions of Section 11 hereof shall apply
only to such Principal Party following the first occurrence of a
Section 13 Event; and (iv) such Principal Party shall take such
steps (including, but not limited to, the reservation of a
sufficient number of its Common Shares) 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, in relation to the Common Shares
thereafter deliverable upon the exercise of the Rights.
(b) "Principal Party" shall mean:
(i) in the case of any transaction described
in clause (x) or (y) of the first sentence of Section
13(a), the Person that is the issuer of any securities
into which Common Shares of the Corporation 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 (including, if applicable, the
Corporation if it is the surviving corporation); and
(ii) in the case of any transaction described
in clause (z) of the first sentence of Section 13(a), the
Person that is the party receiving the greatest portion of
the assets or earning power transferred pursuant to such
transaction or transactions;
provided, however, that in any of the foregoing cases, (1) if the
Common Shares of such Person are not at such time and have 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
Shares of which are and have 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 Shares 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 Shares 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.
(c) The Corporation shall not consummate any such
consolidation, merger, sale or transfer unless the Principal
Party shall have a sufficient number of its authorized Common
Shares 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 Corporation 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, sale or transfer mentioned in paragraph
(a) of this Section 13, the Principal Party at its own expense
shall:
(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 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 Final 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) deliver to holders of the Rights historical
financial statements for the Principal Party which comply
in all 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 or consolidations or sales or other transfers.
The rights under this Section 13 shall be in addition to the
rights to exercise Rights and adjustments under Section 11(a)(ii)
and shall survive any exercise thereof.
(d) Notwithstanding anything in this Agreement to
the contrary, Section 13 shall not be applicable to a transaction
described in subparagraphs (x) and (y) of Section 13(a) if: (i)
such transaction is consummated with a Person or Persons who
acquired Common Shares pursuant to a Permitted Offer (or a wholly
owned Subsidiary of any such Person or Persons); (ii) the price
per Common Share offered in such transaction is not less than the
price per Common Share paid to all holders of Common Shares whose
shares were purchased pursuant to such Permitted Offer; and (iii)
the form of consideration offered in such transaction is the same
as the form of consideration paid pursuant to such Permitted
Offer. Upon consummation of any such transaction contemplated by
this Section 13(d), all Rights hereunder shall expire.
Section 14. Fractional Rights and Fractional Shares. (a) The
Corporation shall not be required to issue fractions of Rights or
to distribute Right Certificates which evidence fractional
Rights. In lieu of such fractional Rights, there shall be paid to
the registered holders of the Right 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 the 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 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 price or, if not so quoted, the
average of the high bid and low asked prices in the over-the-
counter market, as reported by NASDAQ or such other system then in use
or, if on any such date the Rights are not quoted by any such
organization, the average of the closing bid and asked prices as
furnished by a professional market maker making a market in the
Rights selected by the Board of Directors of the Corporation. 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 of the Corporation shall
be used.
(b) The Corporation shall not be required to issue fractions
of Common Shares upon exercise of the Rights or to distribute
certificates which evidence fractional Common Shares. In lieu of
fractional Common Shares, the Corporation shall pay to the
registered holders of Right 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 Common Share.
For the purposes of this Section 14(b), the current market value
of a Common Share shall be the closing price of a Common Share
(as determined pursuant to Section 11(d)(ii) hereof) for the
Trading Day immediately prior to the date of such exercise.
(c) The holder of a Right by the acceptance of the Right
expressly waives his right to receive any fractional Rights or
any fractional share upon exercise of a Right (except as provided
above).
Section 15. Rights of Action. All rights of action in
respect of this Agreement, excepting the rights of action given
to the Rights Agent under Section 18 hereof, are vested in the
respective registered holders of the Right Certificates (and,
prior to the Distribution Date, the registered holders of the
Common Shares); and any registered holder of any Right
Certificate (or, prior to the Distribution Date, of the Common
Shares), without the consent of the Rights Agent or of the holder
of any other Right Certificate (or, prior to the Distribution
Date, of the Common Shares), may, in his own behalf and for his
own benefit, enforce, and may institute and maintain any suit,
action or proceeding against the Corporation to enforce, or
otherwise act in respect of, his right to exercise the Rights
evidenced by such Right Certificate in the manner provided in
such Right Certificate and in this Agreement. Without limiting
the foregoing or any remedies available to the holders of Rights,
it is specifically acknowledged that the holders of Rights would
not have an adequate remedy at law for any breach of this
Agreement and will be entitled to specific performance of the
obligations under, and injunctive relief against actual or
threatened violations of the obligations of any Person subject
to, this Agreement.
Section 16. Agreement of Right Holders. Every holder of a
Right, by accepting the same, consents and agrees with the
Corporation 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 the Common
Shares;
(b) after the Distribution Date, the Right Certificates
are transferable only on the registry books of the Rights Agent if
surrendered at the principal office or offices of the Rights
Agent designated for such purpose, duly endorsed or accompanied
by a proper instrument of transfer and with the appropriate form
fully executed;
(c) subject to Section 6 and Section 7(f) hereof,
the Corporation and the Rights Agent may deem and treat the person
in whose name the Right Certificate (or, prior to the Distribution
Date, the associated Common Shares certificate) is registered as
the absolute owner thereof and of the Rights evidenced thereby
(notwithstanding any notations of ownership or writing on the
Right Certificate or the associated Common Shares certificate
made by anyone other than the Corporation or the Rights Agent)
for all purposes whatsoever, and neither the Corporation nor the
Rights Agent, subject to the last sentence of Section 7(e)
hereof, shall be required to be affected by any notice to the
contrary; and
(d) Notwithstanding anything in this Agreement to
the contrary, neither the Corporation nor the Rights Agent shall
have any liability to any holder of a Right or a beneficial interest
in a Right or other Person as a result of its inability to
perform any of its obligations under this Agreement by reason of
any preliminary or permanent injunction or other order, decree or
ruling issued by a court of competent jurisdiction or by a
governmental, regulatory or administrative agency or commission,
or any statute, rule, regulation or executive order promulgated
or enacted by any governmental authority, prohibiting or
otherwise restraining performance of such obligation; provided,
however, the Corporation must use its best efforts to have any
such order, decree or ruling lifted or otherwise overturned as
soon as possible.
Section 17. Right Certificate Holder Not Deemed a
Stockholder. No holder, as such, of any Right Certificate shall
be entitled to vote, receive dividends or be deemed for any
purpose the holder of the Common Shares or any other securities
of the Corporation which may at any time be issuable on the
exercise of the Rights represented thereby, nor shall any-
thing contained herein or in any Right Certificate be
construed to confer upon the holder of any Right Certificate,
as such, any of the rights of a stockholder of the Corporation 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 other distributions or to exercise any preemptive or
subscription rights, or otherwise, until the Right or Rights
evidenced by such Right Certificate shall have been exercised in
accordance with the provisions hereof.
Section 18. Concerning the Rights Agent. The Corporation
agrees to pay to the Rights Agent reasonable compensation for all
services rendered by it hereunder and, from time to time, on
demand of the Rights Agent, its reasonable expenses and counsel
fees and other disbursements incurred in the administration and
execution of this Agreement and the exercise and performance of
its duties hereunder. The Corporation also agrees to indemnify
the Rights Agent for, and to hold it harmless against, any loss,
liability, or expense, incurred without negligence, bad faith or
willful misconduct on the part of the Rights Agent, for anything
done or omitted by the Rights Agent in connection with the
acceptance and administration of this Agreement, including the
costs and expenses of defending against any claim of liability in
the premises. The indemnity provided for herein shall survive the
expiration of the Rights and the termination of this Agreement.
The Rights Agent shall be protected and shall incur no
liability for, or in respect of any action taken, suffered or
omitted by it in connection with, its administration of this
Agreement in reliance upon any Right Certificate or certificate
for Common Shares or for other securities of the Corporation,
instrument of assignment or transfer, power of attorney,
endorsement, affidavit, letter, notice, direction, consent,
certificate, statement, or other paper or document believed by it
to be genuine and to be signed, executed and, where necessary,
verified or acknowledged, by the proper Person or Persons.
Section 19. Merger or Consolidation or Change of Name of
Rights Agent. Any corporation into which the Rights Agent or any
successor Rights Agent may be merged or with which it may be
consolidated, or any corporation resulting from any merger or
consolidation to which the Rights Agent or any successor Rights
Agent shall be a party, or any corporation succeeding to the
stock transfer or all or substantially all of the corporate
trust business of the Rights Agent or any successor Rights
Agent, shall be the successor to the Rights Agent under
this Agreement without the execution or filing of any paper
or any further act on the part of any of the parties hereto,
provided that such corporation would be eligible for
appointment as a successor Rights Agent under the provisions
of Section 21 hereof. In case at the time such successor Rights
Agent shall succeed to the agency created by this Agreement, any
of the Right 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
Right Certificates so countersigned; and in case at that time any
of the Right Certificates shall not have been countersigned, any
successor Rights Agent may countersign such Right Certificates
either in the name of the predecessor or in the name of the
successor Rights Agent; and in all such cases such Right
Certificates shall have the full force provided in the Right
Certificates and in this Agreement.
In case at any time the name of the Rights Agent shall be
changed and at such time any of the Right Certificates shall have
been countersigned but not delivered, the Rights Agent may adopt
the countersignature under its prior name and deliver Right
Certificates so countersigned; and in case at that time any of
the Right Certificates shall not have been countersigned, the
Rights Agent may countersign such Right Certificates either in
its prior name or in its changed name; and in all such cases such
Right Certificates shall have the full force provided in the
Right Certificates and in this Agreement.
Section 20. Duties of Rights Agent. The Rights Agent
undertakes only those duties and obligations imposed by this
Agreement upon the following terms and conditions, by all of
which the Corporation and the holders of Right Certificates, by
their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel
(who may be legal counsel for the Corporation), 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 an Acquiring Person and the determination of the
current market price of any Security) be proved or established by
the Corporation prior to taking or suffering any action
hereunder, such fact or matter (unless other evidence in respect
thereof be herein specifically prescribed) may be deemed to be
conclusively proved and established by a certificate signed by any
one of the Chairman of the Board, the Chief Executive Officer, the
President, any Vice President, the Treasurer or the Secretary of
the Corporation and delivered to the Rights Agent; and such
certificate shall be full authorization to the Rights Agent for
any action taken or suffered in good faith by it under the
provisions of this Agreement in reliance upon such certificate.
(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 Right Certificates (except its
countersignature on such Right Certificates) or be required to
verify the same, but all such statements and recitals are and
shall be deemed to have been made by the Corporation only.
(e) The Rights Agent shall not be under any responsi-
bility 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 Right
Certificate (except its countersignature thereof); nor shall it
be responsible for any breach by the Corporation of any covenant
or condition contained in this Agreement or in any Rights
Certificate; nor shall it be responsible for any change in the
exercisability of the Rights (including the Rights becoming void
pursuant to Section 7(e) hereof) or any adjustment required under
the provisions of Section 11 or Section 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 receipt of the certificate
described in Section 12 hereof); nor shall it by any act
hereunder be deemed to make any representation or warranty as to
the authorization or reservation of any Common Shares to be
issued pursuant to this Agreement or any Right Certificate or as
to whether any Common Shares will, when issued, be validly
authorized and issued, fully paid and non-assessable.
(f) The Corporation agrees that it will perform,
execute, acknowledge and deliver or cause to be performed, executed,
acknowledged and delivered all such further and other acts,
instruments and assurances as may reasonably be required by the
Rights Agent for the carrying out or performing by the Rights
Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and
directed to accept instructions with respect to the performance
of its duties hereunder from any one of the Chairman of the Board,
the Chief Executive Officer, the President, any Vice President,
the Treasurer or the Secretary of the Corporation, and to
apply to such officers for advice or instructions in
connection with its duties, and shall not be liable for any
action taken or suffered by it in good faith or lack of action in
accordance with instructions of any such officer or for any delay
in acting while waiting for those instructions. Any application
by the Rights Agent for written instructions from the Corporation
may, at the option of the Rights Agent, set forth in writing any
action proposed to be taken or omitted by the Rights Agent under
this Rights Agreement and the date on or after which such action
shall be taken or such omission shall be effective. The Rights
Agent shall not be liable for any action taken by, or omission
of, the Rights Agent in accordance with a proposal included in
any such application on or after the date specified in such
application (which date shall not be less than five Business Days
after the date any officer of the Corporation actually receives
such application, unless any such officer shall have consented in
writing to an earlier date) unless, prior to taking any such
action (or the effective date in the case of an omission), the
Rights Agent shall have received written instruction in response
to such application specifying the action to be taken or omitted.
(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 Corporation or become
pecuniarily interested in any transaction in which the
Corporation may be interested, or contract with or lend money to
the Corporation 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 Corporation or for any other legal entity.
(i) The Rights Agent may execute and exercise any
of the rights or powers hereby vested in it or perform any duty
hereunder either itself or by or through its attorneys or agents,
and the Rights Agent shall not be answerable or accountable for
any act, default, neglect or misconduct of any such attorneys or
agents or for any loss to the Corporation resulting from any such
act, default, neglect or misconduct, provided 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.
(k) If, with respect to any Rights Certificate surrendered
to the Rights Agent for exercise or transfer, the
certificate attached to the form of assignment or form of
election to purchase, as the case may be, has not been completed,
the Rights Agent shall not take any further action with respect
to such requested exercise of transfer without first consulting
with the Corporation.
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 Corporation and to the transfer agent of
the Common Shares by registered or certified mail, and to the
holders of the Right Certificates by first-class mail. The
Corporation may remove the Rights Agent or any successor Rights
Agent upon sixty (60) days' notice in writing, mailed to the
Rights Agent or successor Rights Agent, as the case may be, and
to the transfer agent of the Common Shares by registered or
certified mail, and to holders of the Right Certificates by
first-class mail. If the Rights Agent shall resign or be removed
or shall otherwise become incapable of acting, the Corporation
shall appoint a successor to the Rights Agent. If the Corporation
shall fail to make such appointment within a period of sixty (60)
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
Right Certificate (who shall, with such notice, submit his Right
Certificate for inspection by the Corporation), then the
registered holder of any Right 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
Corporation 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 New York (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 New York), in good standing,
having an office in the State of New York, which is authorized
under such laws to exercise corporate trust or stock transfer
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
$100,000,000. After appointment, the successor Rights Agent shall
be vested with the same powers, rights, duties and responsibili-
ties 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
Corporation shall file notice thereof in writing with the prede-
cessor Rights Agent and the transfer agent of the Common Shares,
and mail a notice thereof in writing to the registered holders of
the Right Certificates. Failure to give any notice provided
for in this Section 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 Right Certificates.
Notwithstanding any of the provisions of this Agreement or of the
Rights to the contrary, the Corporation may, at its option, issue
new Right Certificates evidencing Rights in such form as may be
approved by its Board of Directors of the Corporation to reflect
any adjustment or change in the Purchase Price and the number or
kind or class of shares or other securities or property
purchasable under the Right Certificates made in accordance with
the provisions of this Agreement.
In addition, in connection with the issuance or sale of
Common Shares following the Distribution Date and prior to the
earliest of the Redemption Date, the Final Expiration Date and
the consummation of a transaction contemplated by Section 13(d)
hereof, the Corporation (a) shall with respect to Common Shares
so issued or sold pursuant to the exercise of stock options or
under any employee plan or arrangement, or upon the exercise,
conversion or exchange of securities, notes or debentures issued
by the Corporation, and (b) may, in any other case, if deemed
necessary or appropriate by the Board of Directors of the
Corporation, issue Right Certificates representing the
appropriate number of Rights in connection with such issuance or
sale; provided, however, that (i) the Corporation shall not be
obligated to issue any such Right Certificates if, and to the
extent that, the Corporation shall be advised by counsel that
such issuance would create a significant risk of material adverse
tax consequences to the Corporation or the Person to whom such
Right Certificate would be issued, and (ii) no Right Certificate
shall be issued if, and to the extent that, appropriate
adjustment shall otherwise have been made in lieu of the issuance
thereof.
Section 23. Redemption and Termination. (a)(i) Subject to
Section 23(a)(iii), the Board of Directors of the Corporation
may, at its option, redeem all but not less than all the then
outstanding Rights at a redemption price of $0.01 per Right, as
such amount may be appropriately adjusted to reflect any stock
split, stock dividend or similar transaction occurring after the
date hereof (such redemption price being hereinafter referred to as
the "Redemption Price"), at any time prior to the earlier of (x)
the time that any Person becomes an Acquiring Person, or (y) the
Final Expiration Date. The Corporation may, at its option, pay the
Redemption Price either in Common Shares (based on the "current per
share market price," as defined in Section 11(d) hereof, of the Common
Shares at the time of redemption) or cash; provided that if the
Corporation elects to pay the Redemption Price in Common
Shares, the Corporation shall not be required to issue any
fractional Common Shares and the number of Common Shares issuable
to each holder of Rights shall be rounded down to the next whole
share.
(ii) In addition, subject to Section 23(a)(iii),
the Board of Directors of the Corporation may, at its option, at
any time following a Shares Acquisition Date but prior to any
Section 13 Event redeem all but not less than all of the then
outstanding Rights at the Redemption Price in connection with any
Section 13 Event in which all holders of Common Shares are treated
alike and not involving (other than as a holder of Common Shares
being treated like all other such holders) an Interested Stockholder.
(iii) The Board of Directors of the Corporation
may only redeem Rights pursuant to Section 23(a)(i) or 23(a)(ii)
hereof if (A) a majority of the Disinterested Directors, and (B)
a majority of all of the directors of the Corporation authorize
such redemption. Notwithstanding anything in this Agreement to the
contrary, the Rights may not be redeemed pursuant to this Section
23 unless there is at least one member of the Board of Directors
of the Corporation that is a Disinterested Director at the time
of such redemption.
(b) In the case of a redemption permitted under
Section 23(a)(i), immediately upon the date for redemption set
forth (or determined in the manner specified in) in a resolution of
the Board of Directors of the Corporation 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 for each Right so held. In the case
of a redemption permitted only under Section 23(a)(ii), evidence
of which shall have been filed with the Rights Agent, the right
to exercise the Rights will terminate and represent only the
right to receive the Redemption Price upon the later of ten
Business Days following the giving of such notice or the
expiration of any period during which the rights under Section
11(a)(ii) may be exercised. The Corporation shall promptly give
public notice of any such redemption; provided, however, that the
failure to give, or any defect in, any such notice shall not
affect the validity of such redemption. Within ten (10) days
after such date for redemption set forth in a resolution of the
Board of Directors of the Corporation ordering the redemption of
the Rights, the Corporation shall mail a notice of redemption to
all the holders of the then outstanding Rights 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 Shares. Any notice
which is mailed in the manner herein provided shall be deemed
given, whether or not the holder receives the notice. Each such
notice of redemption will state the method by which the payment
of the Redemption Price will be made. Neither the Corporation nor
any of its Affiliates or Associates may redeem, acquire or
purchase for value any Rights at any time in any manner other
than that specifically set forth in this Section 23 and other
than in connection with the purchase of Common Shares prior to
the Distribution Date.
(c) The Corporation may, at its option, discharge
all of its obligations with respect to the Rights by (i) issuing a
press release announcing the manner of redemption of the Rights in
accordance with this Agreement and (ii) mailing payment of the
Redemption Price to the registered holders of the Rights at their
last addresses as they appear on the registry books of the Rights
Agent or, prior to the Distribution Date, on the registry books
of the Transfer Agent of the Common Shares, and upon such action,
all outstanding Rights and Right Certificates shall be null and
void without any further action by the Corporation.
Section 24. Exchange. (a) Subject to Section 24(d), the
Board of Directors of the Corporation may, at its option, at any
time after the time that any Person becomes an Acquiring Person,
exchange after all or part of the then outstanding and
exercisable Rights (which shall not include Rights that have
become void pursuant to the provisions of Section 7(e) and
Section 11(a)(ii) hereof) for Common Shares of the Corporation at
an exchange ratio of one Common Share per Right, appropriately
adjusted to reflect any stock split, stock dividend or similar
transaction occurring after the date hereof (such exchange ratio
being hereinafter referred to as the "Exchange Ratio").
Notwithstanding the foregoing, the Board of Directors of the
Corporation shall not be empowered to effect such exchange at any
time after any Person (other than the Corporation, any Subsidiary
of the Corporation, any employee benefit plan of the Corporation
or any such Subsidiary, any entity holding Common Shares for or
pursuant to the terms of any such plan or any trustee,
administrator or fiduciary of such a plan), together with all
Affiliates and Associates of such Person, becomes the Beneficial
Owner of 50% or more of the Common Shares then outstanding.
(b) Immediately upon the action of the Board
of Directors of the Corporation 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 Common Shares equal to the number of such rights held
by such holder multiplied by the Exchange Ratio. The Corporation
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 Corporation
promptly shall mail a notice of any such exchange to all of the
holders of such Rights at their last addresses as they appear
upon the registry books of the Rights Agent. Any notice which is
mailed in the manner herein provided shall be deemed given,
whether or not the holder receives the notice. Each such notice
of exchange will state the method by which the exchange of the
Common Shares for Rights will be effected and, in the event of
any partial exchange, the number of Rights which will be
exchanged. Any partial exchange shall be effected pro rata based
on the number of Rights (other than Rights which have become void
pursuant to the provisions of Section 7(e) and Section 11(a)(ii)
hereof) held by each holder of Rights.
(c) In the event that there shall not be sufficient
Common Shares issued but not outstanding or authorized but unissued
to permit any exchange of Rights as contemplated in accordance with
this Section 24, the Corporation shall take all such action as
may be necessary to authorize additional Common Shares for
issuance upon exchange of the Rights.
(d) The Board of Directors may only exchange Rights
pursuant to Section 24(a) hereof if (i) a majority of the
Disinterested Directors, and (ii) a majority of all of the directors
of the Corporation authorize such exchange. Notwithstanding
anything in this Agreement to the contrary, the Rights may not
be exchanged pursuant to this Section 24 unless there is at least
one member of the Board of Directors of the Corporation that is a
Disinterested Director at the time of such exchange.
Section 25. Notice of Certain Events. (a) In case the
Corporation shall propose (i) to pay any dividend payable in
stock of any class to the holders of its Common Shares or to make
any other distribution to the holders of its Common Shares (other
than a regularly quarterly cash dividend), (ii) to offer to the
holders of its Common Shares rights or warrants to subscribe for
or to purchase any additional Common Shares or shares of stock
of any class or any other securities, rights or options,
(iii) to effect any reclassification of its Common Shares
(other than a reclassification involving only the subdivision
of outstanding Common Shares), (iv) to effect any consolidation
or merger into or with any other Person (other than a Subsidiary
of the Corporation in a transaction which does not violate
Section 11(o) hereof), or to effect any sale or other
transfer (or to permit one or more of its Subsidiaries
to effect any sale or other transfer) in one or more
transactions, of 50% or more of the assets or earning power of
the Corporation and its Subsidiaries (taken as a whole) to any
other Person or Persons (other than the Corporation and/or any of
its Subsidiaries in one or more transactions each of which does
not violate Section 11(o) hereof), or (v) to effect the
liquidation, dissolution or winding up of the Corporation, then,
in each such case, the Corporation shall give to each holder of a
Right Certificate, in accordance with Section 26 hereof, a notice
of such proposed action to the extent feasible and file a
certificate with the Rights Agent to that effect, which shall
specify the record date for the purposes of such stock dividend,
or 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 Common
Shares, if any such date is to be fixed, and such notice shall be
so given in the case of any action covered by clause (i) or (ii)
above at least twenty (20) days prior to the record date for
determining holders of the Common Shares 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 Common
Shares, whichever shall be the earlier.
(b) In case of a Section 11(a)(ii) Event, then
(i) the Corporation shall as soon as practicable thereafter give
to each holder of a Right Certificate, in accordance with Section 26
hereof, a notice of the occurrence of such event, which notice
shall describe such event and the consequences of such event to
holders of Rights under Section 11(a)(ii) hereof and (ii) all
references in the preceding paragraph (a) to Common Shares shall
be deemed thereafter to refer also, if appropriate, to capital
stock equivalents, as provided for in Section 11(a)(iii).
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 Right Certificate to or on the Corporation 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:
Loctite Corporation
00 Xxxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
Attention: General Counsel
Subject to the provisions of Section 21 hereof, any notice or
demand authorized by this Agreement to be given or made by the
Corporation or by the holder of any Right 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 Corporation) as follows:
The First National Bank of Boston
Mail Stop 45-02-16
X.X. Xxx 0000
Xxxxxx, XX 00000-0000
Attention: Shareholder Services Division
(Loctite Corporation 1994 Rights
Agreement)
Notices or demands authorized by this Agreement to be given or
made by the Corporation or the Rights Agent to the holder of any
Right Certificate or, if prior to the Distribution Date, to the
holder of certificates representing Common Shares 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 Corporation.
Section 27. Supplements and Amendments. (a) Prior to the
Distribution Date, subject to Section 27(b) hereof, the
Corporation and the Rights Agent shall, if the Corporation so
directs, supplement or amend any provision of this Agreement
without the approval of any holders of certificates representing
Common Shares. From and after the Distribution Date, subject to
Section 27(b) hereof, the Corporation and the Rights Agent shall,
if the Corporation so directs, supplement or amend this Agreement
without the approval of any holders of Right Certificates in
order (i) to cure any ambiguity, (ii) to correct or supplement
any provision contained herein which may be defective or
inconsistent with any other provisions herein, (iii) to shorten
or lengthen any time period hereunder or (iv) to change or
supplement the provisions hereunder in any manner which the
Corporation may deem necessary or desirable and which shall not
adversely affect the interests of the holders of Right
Certificates (other than an Acquiring Person or an Affiliate or
Associate of an Acquiring Person); provided, however, that this
Agreement may not be supplemented or amended to lengthen,
pursuant to clause (iii) of this sentence, (A) a time period
relating to when the Rights may be redeemed at such time as the
Rights are not then redeemable, or (B) any other time period
unless such lengthening is for the purpose of protecting,
enhancing or clarifying the rights of, and/or the benefits to,
the holders of Rights. Upon the delivery of a certificate from an
appropriate officer of the Corporation 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, provided that such supplement or
amendment does not adversely affect the rights or obligations of
the Rights Agent under Section 18 or Section 20 of 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 Shares.
(b) The Corporation shall not supplement or amend
any provision of this Agreement unless (i) a majority of the
Disinterested Directors and (ii) a majority of all of the directors
of the Corporation authorizes such supplement or amendment.
Notwithstanding anything in this Agreement to the contrary, this
Agreement may not be supplemented or amended pursuant to this
Section 27 unless there is at least one member of the Board of
Directors of the Corporation that is a Disinterested Director at
the time of such supplement or amendment.
Section 28. Determination and Actions by the Board of Directors
of the Corporation, etc. Subject to Sections 1(c), 1(r),
23(a)(iii), 24(d) and 27(b) hereof, the Board of Directors of the
Corporation shall have the exclusive power and authority to
administer this Agreement and to exercise all rights and powers
specifically granted to the Board, or the Corporation, or as may
be necessary or advisable in the administration of this
Agreement, including, without limitation, the right and power to
(i) interpret the provisions of this Agreement, and (ii) make all
determinations deemed necessary or advisable for the
administration of this Agreement (including, without limitation,
a determination to redeem or not redeem the Rights or to amend
the Agreement and whether any proposed amendment adversely
affects the interests of the holders of Right Certificates). For
all purposes of this Agreement, any calculation of the number of
Common Shares or other securities outstanding at any particular
time, including for purposes of determining the particular
percentage of such outstanding Common Shares or any other
securities 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 Exchange Act as in
effect on the date of this Agreement. All such actions,
calculations, interpretations and determinations (including, for
purposes of clause (y) below, all omissions with respect to the
foregoing) which are done or made by the Board in good faith,
shall (x) be final, conclusive and binding on the Corporation,
the Rights Agent, the holders of the Right Certificates and all
other parties, and (y) not subject the Board to any liability to
the holders of the Right Certificates.
Section 29. Successors. All the covenants and provisions
of this Agreement by or for the benefit of the Corporation or the
Rights Agent shall bind and inure to the benefit of their
respective successors and assigns hereunder.
Section 30. Benefits of this Agreement. Nothing in this
Agreement shall be construed to give to any person or
corporation other than the Corporation, the Rights Agent and
the registered holders of the Right Certificates (and, prior to
the Distribution Date, the Common Shares) any legal or equitable
right, remedy or claim under this Agreement; but this Agreement
shall be for the sole and exclusive benefit of the Corporation,
the Rights Agent and the registered holders of the Right
Certificates (and, prior to the Distribution Date, the Common
Shares).
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.
Section 32. Governing Law. This Agreement, each Right and
each Right Certificate issued hereunder shall be deemed to be a
contract made under the laws of the State of Delaware and for all
purposes shall be governed by and construed in accordance with
the laws of such State applicable to contracts to be made and
performed entirely within such State.
Section 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.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and attested, all as of the date
and year first above written.
LOCTITE CORPORATION
By:__________________________
Name:
Title:
THE FIRST NATIONAL BANK
OF BOSTON
By:__________________________
Name:
Title:
Exhibit A-1
FORM OF TRANSFEREE AGREEMENT
----------------------------
THIS AGREEMENT (this "Agreement"), dated as of [__________],
between [Insert Name of Transferee] (the "Transferee") and Loctite
Corporation ("Loctite"). Capitalized terms used herein which are
otherwise not defined herein shall have the respective meanings
ascribed to them in the Rights Agreement, dated as of April 14,
1994, between Loctite and The First National Bank of Boston (the
"Rights Agreement").
WITNESSETH:
WHEREAS, pursuant to the acquisition agreement, dated as of
[_________] (the "Acquisition Agreement"), between [Insert Name of
Transferor] (the "Transferor") and the Transferee, the Transferor
has agreed to sell on [__________] (the "Closing Date") to the
Transferee [__________] Common Shares pursuant to the terms and
conditions thereof (the "Proposed Sale Transaction");
WHEREAS, under the Rights Agreement, in order for the
Transferee to be deemed to be a Permitted Transferee, (i) the
Transferee may not have been declared an Adverse Person, (ii) [in
the case of a Transfer from the Xxxxxxx Family Group or a
Permitted Transferee to the Transferee, the Transferee may not
beneficially own, after giving effect to the Proposed Sale
Transaction contemplated by the Acquisition Agreement, any Common
Shares other than the Common Shares transferred by the Transferor
to the Transferee in the Proposed Sale Transaction] [in the case
of a Transfer from Henkel to the Transferee, the Transferee may
not beneficially own, after giving effect to the Proposed Sale
Transaction contemplated by the Acquisition Agreement, a
percentage of the then outstanding Common Shares in excess of the
lesser of (1) the Henkel Percentage in effect immediately prior
to the Proposed Sale Transaction and (2) the sum of 0.3% of the
then outstanding Common Shares and the percentage of the then
outstanding Common Shares to be transferred by Henkel to the
Transferee in the Proposed Sale Transaction] (iii) at least 30
days prior to consummation of the Proposed Sale Transaction, the
Transferee is required to execute and deliver to Loctite this
Agreement, which is substantially in the form of Exhibit A-1
attached to the Rights Agreement, and (iv) immediately prior to
the consummation of the Proposed Sale Transaction, the Transferee
is required to execute and deliver to Loctite an executive
officer's certificate substantially in the form of Exhibit A-2 to
the Rights Agreement; and
WHEREAS, the Transferee desires that, after giving effect
to the Proposed Sale Transaction contemplated by the
Acquisition Agreement, the Transferee will be a Permitted Transferee
under the Rights Agreement and in consideration thereof has entered
into this Agreement.
NOW, THEREFORE, in consideration of the promises herein
contained and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and
intending to be legally bound hereby, each of the parties hereto
agrees as follows:
1. Prohibited Actions. (a) So long as this Agreement is in
effect, (i) Loctite shall not adopt any shareholder rights plan
or similar device that does not contain substantially the same
terms and conditions as those set forth in the Rights Agreement
(a "Substantially Similar Rights Plan") and (ii) Loctite shall
not amend, modify, waive, terminate or invalidate any provision
of the Rights Agreement or any Substantially Similar Rights Plan
or adopt, amend, modify, waive, terminate or invalidate any
provision of its certificate of incorporation or by-laws in any
way which would adversely affect the rights of the Transferee
under the Rights Agreement or any Substantially Similar Rights
Plan.
(b) So long as this Agreement is in effect, the Transferee
shall not, and shall cause each of its Affiliates and Associates
and any duly and validly elected directors of Loctite (each a
"Director") designated by, or which is a representative of, the
Transferee or any of its Affiliates or Associates not to,
directly or indirectly, seek to (i) amend, modify, waive,
terminate or invalidate, or cause the amendment, modification,
waiver, termination or invalidation of any provision of the
Rights Agreement or any Substantially Similar Rights Plan in any
manner (including, without limitation, by proxy contest,
shareholder consent, or otherwise) or (ii) redeem or exchange the
Rights or any rights issued under any Substantially Similar
Rights Plan, in either case, unless a majority of the Directors
who are neither nominees or representatives of the Transferee or
any Affiliate or Associate of the Transferee nor officers or
employees of Loctite (each an "Outside Director") consent to such
action in writing or at a duly called meeting of the Board of
Directors of Loctite (the "Board"); it being understood that the
consent of the Outside Directors may only be obtained if there is
at least one Director that is an Outside Director.
(c) Loctite acknowledges that nothing in this Agreement
shall be construed as prohibiting the Transferee, or its
Affiliates or Associates, from making, or in any way
participating in, any "solicitation" of "proxies" (as such terms
are defined below), or becoming a "participant" in any "election
contest" (as such terms are defined below), in each case, for the
election or removal of any of the Directors; provided, however,
that any Director designated by the Transferee, or any Affiliate
or Associate of the Transferee, shall be subject to the
restrictions contained in Section 1(b) hereof.
2. Permitted Transfers. (a) In connection with any proposed
Permitted Transfer by the Transferee, the Transferee shall
deliver to Loctite no later than 30 days prior to the Transfer
Date (as defined below) (i) written notice of such proposed
Permitted Transfer (the "Transfer Notice") for such proposed
Permitted Transfer setting forth (A) the number of Common Shares
proposed to be transferred, (B) the identity of the proposed
transferee (the "Proposed Transferee"), including the Beneficial
Owners thereof to the extent known or reasonably determinable by
the Transferee, and (C) the date on which the proposed Permitted
Transfer is to be consummated (the "Transfer Date") and (ii) an
agreement substantially in the form of Exhibit A-1 to the Rights
Agreement, duly and validly executed on behalf of the Proposed
Transferee (the "Transferee Agreement"). Upon receipt by Loctite
of the Transferee Agreement duly executed and delivered by the
Proposed Transferee, Loctite shall duly execute and deliver the
Transferee Agreement.
(b) As soon as practicable after receipt of the Transfer
Notice, the Directors who are neither nominees or representatives
of the Transferor or any Affiliate or Associate of the Transferor
nor officers or employees of Loctite (each an "Unaffiliated
Director") shall evaluate whether the Proposed Transferee is an
Adverse Person. The Transferee shall provide the Unaffiliated
Directors with any information within its control requested by
them to facilitate their evaluation, as soon as practicable after
any request for information is made.
(c) Subject to Section 2(d) hereof, a proposed Permitted
Transfer may be consummated on the Transfer Date as set forth in
the Transfer Notice and the Transferee Agreement related to such
proposed Permitted Transfer unless the Unaffiliated Directors
shall have determined that the Proposed Transferee is an Adverse
Person no later than five days prior to the Transfer Date for
such proposed Permitted Transfer provided that the Transferee
complies with its obligations in Sections 2(a) and (b) hereof.
(d) With respect to any proposed Permitted Transfer, the
Proposed Transferee shall be deemed to be an Adverse Person for
purposes of the Rights Agreement, unless there is at least one
Director that is an Unaffiliated Director during the period from
and including the date Loctite receives a Transfer Notice in
respect of such proposed Permitted Transfer to and including the
Transfer Date for such proposed Permitted Transfer. Except as
required by applicable law, Loctite covenants and agrees that it
will not take any action to cause there to be fewer than one
Unaffiliated Director on the Board at any time.
(e) Notwithstanding anything in this Agreement to the
contrary, no transferee of any Common Shares from the Transferee
shall have any rights under this Agreement.
3. Representations and Warranties of Transferee. The
Transferee represents and warrants to Loctite that:
(a) it has the requisite power and authority (corporate
or otherwise) to execute and deliver this Agreement, to carry out
its obligations hereunder and to consummate each of the
transactions contemplated hereby;
(b) the execution, delivery and performance of this
Agreement and the consummation of each of the transactions
contemplated hereby have been duly authorized by its Board of
Directors (or other relevant corporate body), and no other
corporate proceedings on its part are necessary to authorize this
Agreement or to consummate the transactions so contemplated;
(c) this Agreement has been duly executed and delivered by it
and constitutes a valid and binding obligation of it, enforceable
against it in accordance with its respective terms, except to the
extent such enforceability may be limited by bankruptcy,
insolvency, moratorium or other similar laws affecting or
relating to the enforcement of creditors' rights generally and is
subject to the general principles of equity;
(d) neither the execution, delivery and performance of
this Agreement nor the consummation by it of the transactions
contemplated hereby nor compliance by it with any of the
provisions hereof will (i) conflict with or result in any breach
or violation of any provisions of its governing organizational
documents, (ii) require on its part any filing with, notification
to, or permit, authorization, consent or approval of, any
governmental body or authority or any other entity (other than
filings by the Transferee with the Securities and Exchange
Commission under the Exchange Act) or (iii) constitute (with or
without notice or lapse of time or both) a breach, violation or
default, create a lien or other encumbrance or give rise to any
right of renegotiation or termination, amendment, cancellation,
acceleration or prepayment under (A) any material agreement or
instrument to which it is a party or by which any of its material
properties or assets may be bound or subject or (B) any order,
writ, injunction, decree, statute, rule or regulation,
governmental permit or license applicable to it or any of its
material properties or assets;
(e) A true, and complete copy of the Acquisition
Agreement, without amendment or modification, is attached hereto
as Exhibit A; and
(f) after giving effect to the Proposed Sale Transaction
pursuant to the Acquisition Agreement, (i) the
Transferee, together with all Affiliates and Associates of the
Transferee, will be the Beneficial Owner of [insert number]
Common Shares and (ii) [in the case of a Transfer from the
Xxxxxxx Family Group or a Permitted Transferee to the Transferee,
the Transferee, together with its Affiliates or Associates, will
not beneficially own any Common Shares, other than the Common
Shares transferred by the Transferor to the Transferee in the
Proposed Sale Transaction] [in the case of a Transfer from Henkel
to the Transferee, the Transferee, together with its Affiliates
and Associates, will not beneficially own a percentage of the
then outstanding Common Shares in excess of the lesser of (A) the
Henkel Percentage in effect immediately prior to the Proposed
Sale Transaction and (B) the sum of 0.3% of the then outstanding
Common Shares and the percentage of the then outstanding Common
Shares to be transferred by Henkel to the Transferee in the
Proposed Sale Transaction].
4. Proposed Sale Transaction. The Transferee shall provide
the Unaffiliated Directors with any information requested by them
to facilitate their evaluation of whether the Transferee is an
Adverse Person, as soon as practicable after any request for
information is made, and otherwise cooperate with the
Unaffiliated Directors in connection with their evaluation of the
Transferee.
5. Miscellaneous.
5.1. Entire Agreement. This Agreement embodies the entire
agreement and all understandings between the parties hereto and
supersedes all prior agreements and understandings relating to the
subject matter hereof.
5.2. Binding Effect; Benefits; Assignment; Survival. This
Agreement shall inure to the benefit of and shall be binding upon the
parties hereto and their respective legal representatives,
successors and assigns. Neither this Agreement nor any of the
rights hereunder may be assigned by (i) Loctite, without the
prior written consent of the Transferee, or (ii) the Transferee,
unless there is at least one Unaffiliated Director and a majority
of the Unaffiliated Directors consents to such assignment in
writing or at a duly called meeting of the Board. Any attempted
or purported assignment in violation of the previous sentence
shall be void and of no effect. The representations and
warranties set forth herein shall survive without limitation as
to time.
5.3. Amendments and Waivers. No modification, amendment,
termination or waiver of any provision of this Agreement, and no
consent to any departure therefrom, shall in any event be
effective unless (i) there is at least one Unaffiliated Director
and (ii) the same shall be (a) in writing, (b) signed by each
of the parties hereto and (c) approved by a majority of
the Unaffiliated Directors, and then such waiver or
consent shall be effective only in the specific instance and
for the purpose for which given.
5.4. Governing Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of Delaware
applicable to agreements made and to be performed wholly within
such jurisdiction, without giving effect to the choice of law
provisions thereof. Each of the parties hereto hereby irrevocably
and unconditionally consents to submit to the exclusive
jurisdiction of the courts of the State of Delaware for any
litigation arising out of, or relating to, this Agreement and the
transactions contemplated hereby (and agrees not to commence any
litigation relating thereto except in such courts). [The
Transferee hereby irrevocably appoints CT Corporation Systems
(the "Process Agent"), with an office on the date hereof at 0000
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Xxxxxx Xxxxxx, as its
agent to receive, on its behalf, service of any process, summons,
notice or other document -- applicable if the Transferee is a
foreign entity.] The Transferee agrees that service of any
process, summons, notice or document by U.S. registered mail [to
its respective address set forth in Section 6.5 hereof] [to the
Process Agent] shall be effective service of process for any
litigation brought against it in any such court. Each of the
parties hereto hereby irrevocably and unconditionally waives any
objection to the laying of venue of any litigation arising out of
this Agreement or the transactions contemplated hereby in the
courts of the State of Delaware, and hereby further irrevocably
and unconditionally waives and agrees not to plead or claim in
any such court that any such litigation brought in any such court
has been brought in an inconvenient forum.
5.5. Notices. All notices, requests, demands, applications,
services of process and other communications which are required
to be or may be given under this Agreement shall be deemed to
have been duly given if sent by telex, telecopy or facsimile
transmission or delivered or mailed, certified first class mail,
postage prepaid, return receipt requested, to the parties hereto
at the following addresses:
To Loctite:
Loctite Corporation
00 Xxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: General Counsel
With copies to:
Fried, Frank, Harris, Xxxxxxx
& Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxx, Xx., P.C.
To Transferee:
[ ]
[ ]
[ ]
Attention: [ ]
With copies to:
[ ]
[ ]
[ ]
Attention: [ ];
or to such other address as any party shall furnish to the other
by notice given in accordance with this Section 5.5. All such
notices, requests, demands and other communications shall be
deemed to have been duly given: at the time delivered by hand, if
personally delivered; three business days after being deposited
in the mail, postage prepaid, if mailed; when receipt is
acknowledged, if telecopied; and on the next business day, if
timely delivered (with charges prepaid) to a recognized national
air courier guaranteeing overnight delivery.
5.6. Further Assurances. Each party hereto shall do and
perform or cause to be done and performed all such further acts and
things and shall execute and deliver all such other agreements,
certificates, instruments and documents as any other party may
reasonably request in order to carry out the intent and
accomplish the purpose of this Agreement and the consummation of
the transactions contemplated hereby.
5.7. Specific Performance. The parties hereto hereby
acknowledge that each party hereto would suffer irreparable
injury and would not have an adequate remedy at law for money
damages if the provisions of this Agreement were not performed in
accordance with their terms. Each party hereto agrees that the
other parties hereto shall be entitled to specific enforcement of
the terms of this Agreement in addition to any other remedy to
which they are entitled, at law or in equity. Furthermore, if
any action or proceeding shall be instituted to enforce the
provisions hereof, any party against whom such action or
proceeding is brought hereby waives the claim or defense
therein that there is an adequate remedy at law, and
agrees not to urge in any such action or proceeding the claim or
defense that such remedy at law exists.
5.8. Termination. This Agreement shall terminate and be
of no further force and effect on April 14, 2004, and upon the
termination of this Agreement there shall be no liability on the
part of any party to this Agreement with respect to any of the
provisions hereof, with the sole exception that nothing contained
in this Agreement shall in any way relieve any party hereto from
liability for any breach of the provisions of this Agreement for
the period prior to its termination.
5.9. Rights of Action. (a) Except as set forth in this
Section 5.9, nothing in this Agreement shall be construed to give any
person or corporation (other than Loctite and the Transferee) any
legal or equitable right, remedy or claim under this Agreement.
The parties agree that, at any time that there are no
Unaffiliated Directors, the rights of action in respect of this
Agreement shall be vested in the respective holders of Common
Shares; and any holder of Common Shares, without the consent of
any other holder of Common Shares, may, on his own behalf and for
his own benefit, enforce, and may institute and maintain any
suit, action or proceeding against any party to this Agreement to
enforce, any provision of this Agreement. Without limiting the
foregoing or any remedies available to the holders of Common
Shares, it is specifically acknowledged that the holders of
Common Shares would not have an adequate remedy at law for any
breach of this Agreement and will be entitled to specific
performance of the obligations under, and injunctive relief
against actual or threatened violations of the obligations of any
party subject to, this Agreement.
(b) The Transferee hereby agrees that in connection with any
action by Loctite to enforce any provision of this Agreement
against the Transferee, the Transferee will not take any action
that would directly or indirectly prevent Loctite from making the
necessary funds and personnel available to pursue such action.
5.10. Counterparts. This Agreement may
be executed in one or more counterparts, each of which
for all purposes shall be deemed an original and all of
which shall constitute the same instrument.
IN WITNESS WHEREOF, each of the Transferee and Loctite has
caused this Agreement to be duly executed on its behalf as of the date
first above written.
[NAME OF TRANSFEREE]
By:_____________________
Name:
Title:
LOCTITE CORPORATION
By:_____________________
Name:
Title:
Exhibit A-2
FORM OF TRANSFEREE
EXECUTIVE OFFICER'S CERTIFICATE
-------------------------------
[Name of Transferee]
[Address of Transferee]
Loctite Corporation
00 Xxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Reference is made to the Transferee Agreement, dated as of
[______], between [Insert Name of Transferee] and Loctite Corporation
(the "Transferee Agreement"). The undersigned, [______], an executive
officer of the Transferee, does hereby certify in my capacity as
such executive officer that all of the representations and
warranties of the Transferee set forth in Section 3 of the
Transferee Agreement are true and correct on and as of the date
hereof with the same effect as though made on and as of the date
hereof.
IN WITNESS WHEREOF, the undersigned has duly and validly
executed this Certificate this [insert date of closing of
transfer].
______________________
Name:
Title:
Exhibit B
---------
Form of Right Certificate
Certificate No. R- ________ Rights
NOT EXERCISABLE AFTER APRIL 14, 2004, OR EARLIER IF
REDEEMED BY THE CORPORATION. THE RIGHTS ARE SUBJECT TO
REDEMPTION AT $.01 PER RIGHT ON THE TERMS SET FORTH IN
THE RIGHTS AGREEMENT.
UNDER CERTAIN CIRCUMSTANCES SET FORTH IN THE RIGHTS
AGREEMENT, RIGHTS ISSUED TO, OR HELD BY, ANY PERSON WHO
IS, WAS OR BECOMES AN ACQUIRING PERSON OR AN AFFILIATE
OR ASSOCIATE THEREOF (AS DEFINED IN THE RIGHTS
AGREEMENT) AND CERTAIN RELATED PERSONS, WHETHER
CURRENTLY HELD BY OR ON BEHALF OF SUCH PERSON OR BY ANY
SUBSEQUENT HOLDER, SHALL BECOME NULL AND VOID.
Right Certificate
Loctite Corporation
This certifies that _____________, or registered assigns, is
the registered owner of the number of Rights set forth above,
each of which entitles the owner thereof, subject to the terms,
provisions and conditions of the Rights Agreement, dated as of
April 14, 1994 (the "Rights Agreement"), between Loctite
Corporation, a Delaware corporation (the "Corporation"), and The
First National Bank of Boston (the "Rights Agent"), to purchase
from the Corporation at any time after the Distribution Date (as
such term is defined in the Rights Agreement) and prior to 5:00
P.M., New York time, on April 14, 2004, unless the Rights
evidenced hereby shall have been previously redeemed by the
Corporation, at the principal office or offices of the Rights
Agent designated for such purpose, or at the office of its
successor as Rights Agent, one fully paid non-assessable share of
Common Stock, with a par value of $.01 per share (the "Common
Shares"), of the Corporation, at a purchase price of $175.00 per
Common Share (the "Purchase Price"), upon presentation and
surrender of this Right Certificate with the Form of Election to
Purchase duly executed. The number of Rights evidenced by this
Right Certificate (and the number of Common Shares which may be
purchased upon exercise hereof) set forth above, and the Purchase
Price set forth above, are the number and Purchase Price as of
April 14, 1994, based on the Common Shares as constituted at such
date.
Upon the occurrence of a Section 11(a)(ii) Event (as such
term is defined in the Rights Agreement), if the Rights
evidenced by this Right 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) a
transferee of any such Acquiring Person, Affiliate or Associate who
becomes a transferee after the Acquiring Person becomes such, or (iii)
under certain circumstances specified in the Rights Agreement, a
transferee of any such Acquiring Person, Affiliate or Associate
who becomes a transferee prior to or concurrently with the
Acquiring Person becoming such, such Rights shall become null and
void and no holder hereof shall have any right with respect to
such Rights from and after the occurrence of such Section
11(a)(ii) Event.
As provided in the Rights Agreement, the Purchase Price and
the number of Common Shares or other securities which may be
purchased upon the exercise of the Rights evidenced by this Right
Certificate are subject to modification and adjustment upon the
happening of certain events, including Triggering Events (as such
term is defined in the Rights Agreement).
This Right Certificate is subject to all of the
terms, provisions and conditions of the Rights Agreement, which
terms, provisions and conditions are hereby incorporated herein
by reference and made a part hereof and to which Rights Agreement
reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities
hereunder of the Rights Agent, the Corporation and the holders of
the Right Certificates, which limitations of rights include the
temporary suspension of the exercisability of such Rights under
the specific circumstances set forth in the Rights Agreement.
Copies of the Rights Agreement are on file at the principal
executive offices of the Corporation and the principal office or
offices of the Rights Agent.
This Right Certificate, with or without other Right
Certificates, upon surrender at the principal office of the
Rights Agent, may be exchanged for another Right Certificate or
Right Certificates of like tenor and date evidencing Rights
entitling the holder to purchase a like aggregate number of
Common Shares or other securities as the Rights evidenced by the
Right Certificate or Right Certificates surrendered shall have
entitled such holder to purchase. If this Right Certificate shall
be exercised in part, the holder shall be entitled to receive
upon surrender hereof another Right Certificate or Right
Certificates for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the
Rights evidenced by this Certificate may be redeemed by the
Corporation at a redemption price of $.01 per Right (subject to
adjustment as provided in the Rights Agreement) payable in Common
Shares or cash.
No fractional Common Shares 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 Right Certificate, as such, shall be
entitled to vote or receive dividends or be deemed for any
purpose the holder of the Common Shares or of any other
securities of the Corporation 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
thereof, as such, any of the rights of a stockholder of the
Corporation 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 other distributions or to exercise any
preemptive or subscription rights, or otherwise, until the Right
or Rights evidenced by this Right Certificate shall have been
exercised as provided in the Rights Agreement.
This Right Certificate shall not be 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 Corporation and its corporate seal. Dated as of _________,
____.
ATTEST: LOCTITE CORPORATION
____________________ By___________________
Name: Name:
Title: Title:
Countersigned:
THE FIRST NATIONAL
BANK OF BOSTON
By__________________
Authorized Signatory
Name:
Title:
Form of the Reverse Side of Right Certificate
FORM OF ASSIGNMENT
------------------
(To be executed by the registered holder if such holder
desires
to transfer the Right Certificate.)
FOR VALUE RECEIVED _______________________________________
hereby sells, assigns and transfers unto ___________________________
____________________________________________________________________
(Please print name and address of transferee)
____________________________________________________________________
this Right Certificate, together with all right, title
and interest therein, and does hereby irrevocably
constitute and appoint _______________ Attorney, to
transfer the within Right Certificate on the books of
the within-named Corporation, with full power of
substitution.
Dated: ______________________, _______
__________________________
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered
national securities exchange, a member of the National
Association of Securities Dealers, Inc., or a commercial bank or
trust company having an office or correspondent in the United
States.
------------------------------------------------------------------------
The undersigned hereby certifies that (1) the Rights
evidenced by this Right Certificate are not being sold, assigned or
transferred by or on behalf of a Person who is or was an
Acquiring Person or an Affiliate or Associate thereof (as such
terms are defined in the Rights Agreement) and (2) after due
inquiry and to the best knowledge of the undersigned, the
undersigned did not acquire the Rights evidenced by this Right
Certificate from any Person who is or was an Acquiring Person or
an Affiliate or Associate thereof (as such terms are defined in
the Rights Agreement).
__________________________
Signature
------------------------------------------------------------------------
Form of the Reverse Side of Right Certificate -- continued
FORM OF ELECTION TO PURCHASE
----------------------------
(To be executed by the registered holder if such holder desires
to exercise Rights represented by the Right Certificate.)
To the Rights Agent:
The undersigned hereby irrevocably elects to exercise _________
Rights represented by this Right Certificate to purchase the Common
Shares or other securities issuable upon the exercise of such Rights and
requests that certificates for such Common Shares or other securities be
issued in the name of:
Please insert social security
or other identifying number _____________________________________________
_________________________________________________________________________
(Please print name and address)
_________________________________________________________________________
If such number of Rights shall not be all the Rights evidenced by
this Right Certificate, a new Right Certificate for the balance
remaining of such Rights shall be registered in the name of and
delivered to:
Please insert social security
or other identifying number _____________________________________________
_________________________________________________________________________
(Please print name and address)
_________________________________________________________________________
Dated: ________________, _______
__________________________
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered
national securities exchange, a member of the National
Association of Securities Dealers, Inc., or a commercial bank or
trust company having an office or correspondent in the United
States.
Form of the Reverse Side of Right Certificate -- continued
--------------------------------------------------------------------
The undersigned hereby certifies that (1) the Rights
evidenced by this Right Certificate are not being exercised by or on
behalf of a Person who is or was an Acquiring Person or an Affiliate
or Associate thereof (as such terms are defined in the Rights
Agreement) and (2) after due inquiry and to the best knowledge of
the undersigned, the undersigned did not acquire the Rights
evidenced by this Right Certificate from any Person who is or was
an Acquiring Person or an Affiliate [or Associate] thereof (as
such terms are defined in the Rights Agreement).
__________________________
Signature
--------------------------------------------------------------------
NOTICE
------
The signature on the foregoing Forms of Assignment and
Election and certificates must conform to the name as written upon
the face of this Right Certificate in every particular, without
alteration or enlargement or any change whatsoever.
In the event the certification set forth above in the Form of
Assignment or the Form of Election to Purchase, as the case may be,
is not completed, the Corporation and the Rights Agent will deem the
Beneficial Owner (as such term is defined in the Rights
Agreement) of the Rights evidenced by this Right Certificate to
be an Acquiring Person or an Affiliate or Associate thereof (as
such terms are defined in the Rights Agreement) and such
Assignment or Election to Purchase will not be honored.
Exhibit C
---------
SUMMARY OF RIGHTS TO PURCHASE COMMON SHARES
UNDER CERTAIN CIRCUMSTANCES SET FORTH IN THE RIGHTS AGREEMENT,
RIGHTS ISSUED TO, OR HELD BY, ANY PERSON WHO IS, WAS OR BECOMES
AN ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE THEREOF (AS
DEFINED IN THE RIGHTS AGREEMENT) AND CERTAIN RELATED PERSONS,
WHETHER CURRENTLY HELD BY OR ON BEHALF OF SUCH PERSON OR BY ANY
SUBSEQUENT HOLDER, SHALL BECOME NULL AND VOID.
On April 14, 1994, the Board of Directors of Loctite
Corporation (the "Corporation") declared a dividend distribution
of one right (a "Right") for each outstanding share of Common
Stock, $.01 par value per share (the "Common Shares"), of the
Corporation. The dividend is payable to the stockholders of
record on April 25, 1994 (the "Record Date") and with respect to
Common Shares issued thereafter until the Distribution Date (as
defined below), and, in certain circumstances, with respect to
Common Shares issued after the Distribution Date. Except as set
forth below, each Right, when it becomes exercisable, entitles
the registered holder to purchase from the Corporation one Common
Share at a price of $175.00 per Common Share (the "Purchase
Price"), subject to adjustment. The description and terms of the
Rights are set forth in a Rights Agreement (the "Rights
Agreement") between the Corporation and The First National Bank
of Boston, as Rights Agent (the "Rights Agent"), dated as of
April 14, 1994.
Initially, the Rights will be attached to all certificates
representing Common Shares then outstanding, and no separate
Right Certificates (as hereinafter defined) will be distributed.
The Rights will separate from the Common Shares upon the earlier
to occur of (i) the date of a public announcement that a person
or "group" (other than a Grandfathered Stockholder (as
hereinafter defined) has acquired beneficial ownership of 10% or
more of the outstanding Common Shares (except pursuant to a
Permitted Offer, as hereinafter defined); or (ii) 10 days (or
such later date as the Board may determine) following the
commencement of a tender offer or exchange offer the consummation
of which would result in a person or group becoming an Acquiring
Person (as hereinafter defined) (the earlier of such dates being
called the "Distribution Date"). A person or group whose
acquisition of Common Shares causes a Distribution Date pursuant
to clause (i) above is an "Acquiring Person." The date that a
person or group becomes an Acquiring Person is the "Shares
Acquisition Date."
Notwithstanding the foregoing, an Acquiring Person does
not include the following persons ("Grandfathered Stockholders"):
(i) Henkel Corporation, a Delaware corporation
("Henkel"), (ii) Xx. Xxxxxx X. Xxxxxxx, Xx. Xxxxx X. Xxxxxxx,
Xx. Xxxxxxxxx X. Xxxxxxx, Xx. Xxxxxxxx X. Xxxxxxx, Xx.
Xxxxx X. Xxxxxxx, Xx. Xxxxx X. Xxxxxxx, Xx. Xxxxxx
Xxxxxx, Management I, Limited and Management II,
Limited as a "group" (as such term is defined or used
under Rule 13d-5(b) promulgated pursuant to
Section 13(d) of the Securities Exchange Act of 1934,
as amended) (collectively as such group, the "Xxxxxxx
Family Group") and (iii) any Permitted Transferee (as
hereinafter defined); provided, however, that, except
under limited circumstances, (a) Henkel will cease to
be a Grandfathered Stockholder at any time after the
date of the Rights Agreement that Henkel beneficially
owns a percentage of outstanding Common Shares in
excess of the Henkel Percentage (as hereinafter
defined) then in effect (other than as a result of a
Permitted Offer), (b) the Xxxxxxx Family Group will
cease to be a Grandfathered Stockholder at the time
after the date of the Rights Agreement any member of
the Xxxxxxx Family Group beneficially owns any
additional Common Shares (other than as a result of a
stock dividend, a stock split, a grant by the
Corporation pursuant to a directors benefit plan
established by the Corporation of Common Shares or
options to purchase Common Shares (and the exercise
thereof) or a Permitted Offer) and (c) any Permitted
Transferee will cease to be a Grandfathered Stockholder
at the time such Permitted Transferee beneficially owns
any additional Common Shares (other than as a result of
a stock dividend, a stock split or a Permitted Offer).
Initially, the "Henkel Percentage" is 35% of the
outstanding Common Shares and thereafter is subject to
adjustment as follows: (1) in the event of any
transfer of Common Shares by Henkel to any person
(other than by means of a transfer of Common Shares
pursuant to a registered public offering or a broker's
transaction under Rule 144 under the Securities Act of
1933, as amended, and that satisfies certain other
conditions to ensure a wide distribution of those
Common Shares (each such transfer, a "Distribution
Transaction")), the Henkel Percentage will be reduced
by the percentage of outstanding Common Shares so
transferred; (2) in the event of transfers aggregating
more than 10% of the outstanding Common Shares by
Henkel by means of Distribution Transactions, the
Henkel Percentage will be reduced by the aggregate
percentage of outstanding Common Shares so transferred
in excess of 10% of the outstanding Common Shares; and
(3) in the event that the Corporation acquires any
Common Shares, the Henkel Percentage immediately
following such acquisition will equal the greater of
the Henkel Percentage immediately prior to such
acquisition and the percentage of the outstanding
Common Shares beneficially owned by Henkel immediately
following such acquisition.
A "Permitted Transfer" is any transfer of Common Shares
from Henkel, the Xxxxxxx Family Group as a whole, or any
Permitted Transferee to any person that (i) has not been
declared an Adverse Person (as hereinafter defined) by a
majority of those directors of the Corporation who are neither
officers or employees of the Corporation nor a designee or
representative of the proposed transferor (the "Unaffiliated
Directors"), (ii) does not beneficially own, after giving effect
to the transfer, in the case of a transfer from the Xxxxxxx
Family Group or any Permitted Transferee, any Common Shares other
than the Common Shares so transferred to such transferee or in
the case of a transfer from Henkel, a percentage of the then
outstanding Common Shares in excess of the lesser of (a) the
Henkel Percentage in effect immediately prior to such proposed
transfer and (b) the sum of 0.3% of the then outstanding Common
Shares and the percentage of the then outstanding Common Shares
so transferred to such transferee, (iii) at least 30 days prior
to the consummation of such proposed transfer, executes and
delivers to the Corporation an agreement substantially in the
form of Exhibit A-1 attached to the Rights Agreement and (iv)
immediately prior to the consummation of such transfer, executes
and delivers to the Corporation an executive officer's
certificate substantially in the form of Exhibit A-2 attached to
the Rights Agreement. The Rights Agreement provides that any
proposed Permitted Transferee will be deemed to be an "Adverse
Person" if it is declared to be an Adverse Person by a majority
of the Unaffiliated Directors after having determined in its
business judgment that beneficial ownership by such proposed
Permitted Transferee of 10% or more of the outstanding Common
Shares would be reasonably likely to materially adversely affect
the Corporation or its stockholders.
The Rights Agreement provides that, until the Distribution
Date, the Rights will be transferred with and only with the
Common Shares. Until the Distribution Date (or earlier redemption
or expiration of the Rights), new Common Share certificates
issued after the Record Date upon transfer or new issuance of
Common Shares will contain a notation incorporating the Rights
Agreement by reference. Until the Distribution Date (or earlier
redemption or expiration of the Rights), the surrender for
transfer of any certificates for Common Shares outstanding as of
the Record Date will also constitute the transfer of the Rights
associated with the Common Shares represented by such
certificate. As soon as practicable following the Distribution
Date, separate certificates evidencing the Rights (the "Right
Certificates") will be mailed to holders of record of the Common
Shares as of the close of business on the Distribution Date (and
to each initial record holder of certain Common Shares issued
after the Distribution Date), and these separate Right
Certificates alone will evidence the Rights.
The Rights are not exercisable until the Distribution Date
and will expire at the close of business on April 14, 2004,
unless earlier redeemed by the Corporation as described below.
In the event that any person becomes an Acquiring Person
(except pursuant to a tender or exchange offer which is for all
outstanding Common Shares and (i) which is at a price and
on terms which a majority of the Disinterested Directors (as
hereinafter defined) and a majority of the entire Board
determines to be adequate and in the best interests of the
Corporation, its stockholders and its other relevant
constituencies, other than such person making such offer, or (ii)
which remains open for a period of at least 60 days after the
tender or exchange offer has commenced and the consummation of
which results in the person on whose basis the tender or exchange
offer is made becoming the beneficial owner of more than 50% of
the outstanding Common Shares (a "Permitted Offer")), each holder
of a Right will thereafter have the right (the "Flip-In Right")
to receive upon exercise the number of Common Shares (or, in
certain circumstances, other securities of the Corporation)
having a value (immediately prior to this triggering event) equal
to two times the Purchase Price of the Right. In lieu of the
Flip-In Right described above, the Board, at its option, may
exchange each Right for one Common Share, provided that at no
time has any person been the beneficial owner of 50% or more of
the outstanding Common Shares. Such an exchange must be
authorized by (a) a majority of the Disinterested Directors and
(b) a majority of all of the directors of the Board. A
"Disinterested Director" means any director of the Corporation
who is neither an officer or employee of the Corporation nor any
designee or representative of any person attempting to effect a
business combination or similar transaction with the Corporation.
Notwithstanding the foregoing, following the occurrence of a
person becoming an Acquiring Person, all Rights that are, or
(under certain circumstances specified in the Rights Agreement)
were, beneficially owned by any Acquiring Person will be null and
void.
In the event that at any time following the Shares
Acquisition Date, (i) the Corporation is acquired in a merger or
other business combination transaction in which the holders of
all of the outstanding Common Shares immediately prior to the
consummation of the transaction are not the holders of all of the
surviving corporation's voting power, or (ii) more than 50% of
the Corporation's assets or earning power is sold or transferred,
in either case with or to (a) an Acquiring Person or any
affiliate or associate or any other person in which such
Acquiring Person, affiliate or associate has an interest or any
person acting on behalf of or in concert with such Acquiring
Person, affiliate or associate, or, (b) any other person (but
only if in any such transaction referred to in clause (i) or (ii)
above, all holders of Common Shares are not treated alike), then
each holder of a Right (except Rights which previously have been
voided as set forth above) will have the right (the "Flip-Over
Right") to receive, upon exercise, common shares of the acquiring
Corporation having a value equal to two times the Purchase Price
of the Right. The holder of a Right will continue to have the
Flip-Over Right whether or not such holder exercises or
surrenders the Flip-In Right.
The Purchase Price payable, and the number of Common Shares
or other securities 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 Shares, (ii) upon
the grant to holders of the Common Shares of certain rights or
warrants to subscribe for or purchase Common Shares at a price,
or securities convertible into Common Shares with a conversion
price, less than the then current market price of the Common
Shares or (iii) upon the distribution to holders of the Common
Shares of evidences of indebtedness or assets (excluding regular
quarterly cash dividends) or of subscription rights or warrants
(other than those referred to above).
The number of outstanding Rights and the number of Common
Shares issuable upon exercise of each Right are also subject to
adjustment in the event of a stock split of the Common Shares or
a stock dividend on the Common Shares payable in Common Shares or
subdivisions, consolidations or combinations of the Common Shares
occurring, in any such case, prior to the Distribution Date.
With certain exceptions, no adjustment in the Purchase Price
will be required until cumulative adjustments require an
adjustment of at least 1% in such Purchase Price. Fractional
Common Shares will not be required to be issued by the
Corporation, and in lieu thereof, an adjustment in cash will be
made based on the market price of the Common Shares on the last
trading day 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 Corporation may redeem the Rights at a price of $.01
per Right (the "Redemption Price"), which redemption will be
effective upon approval of (a) a majority of the Disinterested
Directors and (b) a majority of all of the directors of the
Corporation. Additionally, following the Shares Acquisition Date,
the then outstanding Rights may be redeemed at the Redemption
Price (if approved by (1) a majority of the Disinterested
Directors and (2) a majority of all of the directors of the
Corporation), if this redemption is in connection with a merger
or other business combination transaction or series of
transactions involving the Corporation in which all holders of
Common Shares are treated alike but not involving an Acquiring
Person or its affiliates or associates.
Prior to the Distribution Date, all of the provisions of the
Rights Agreement may be amended by approval of (i) a majority of
the Disinterested Directors and (ii) a majority of all of the
directors of the Corporation. After the Distribution Date, the
provisions of the Rights Agreement may be amended upon approval
of (a) a majority of the Disinterested Directors and (b) a
majority of all of the directors of the Corporation in
order to cure any ambiguity, defect or inconsistency, or to make
changes which do not adversely affect the interests of holders of
Rights (excluding the interests of any Acquiring Person).
The Rights may not be redeemed, exchanged or amended unless
there is at least one Disinterested Director at the time of such
redemption, exchange or amendment.
Until a Right is exercised, the holder thereof, as such,
will have no rights as a stockholder of the Corporation,
including, without limitation, the right to vote or to receive
dividends. While the distribution of the Rights will not be
taxable to stockholders of the Corporation, stockholders may,
depending upon the circumstances, recognize taxable income should
the Rights become exercisable or upon the occurrence of certain
events thereafter.
A copy of the Rights Agreement has been filed with the
Securities and Exchange Commission as an Exhibit to a
Registration Statement on Form 8-A dated April 15, 1994. A copy
of the Rights Agreement is available free of charge from the
Corporation. This summary description of the Rights does not
purport to be complete and is qualified in its entirety by
reference to the Rights Agreement, which is hereby incorporated
herein by reference.
