EXHIBIT 4.1
RIGHTS AGREEMENT
RIGHTS AGREEMENT, dated as of December 31, 1995, between
SIGCORP, INC., an Indiana corporation (the "Company"), and CONTINENTAL STOCK
TRANSFER & TRUST COMPANY, a New York corporation (the "Rights Agent").
In accordance with the Indiana Business Corporation Act, the
Board of Directors of the Company has authorized and declared that after
December 31, 1995 each Share (as hereinafter defined) of the Company issued and
outstanding shall carry with it one share purchase right (a "Right"), each Right
representing the right to purchase 1/100th of one additional Share, upon the
terms and subject to the conditions herein set forth, and has further authorized
and directed the issuance of one Right (as such number may hereinafter be
adjusted pursuant to the provisions of Section 11 hereof) with respect to each
Share that shall become outstanding between December 31, 1995 and the earliest
of the Distribution Date, the Redemption Date and the Final Expiration Date (as
such terms are hereinafter defined).
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 (as
hereinafter defined) who or which, together with all Affiliates
and Associates (as hereinafter defined) of such Person, shall be the Beneficial
Owner (as hereinafter defined) of 10% or more of the Shares then outstanding,
but shall not include (i) the Company, (ii) any Subsidiary (as hereinafter
defined) of the Company, (iii) any employee benefit plan of the Company or of
any Subsidiary of the Company, or (iv) any Person or entity organized, appointed
established by the Company or any Subsidiary of the Company for or pursuant to
the terms of any such plan.
No Person shall become an "Acquiring Person" either (x) as the
result of an acquisition of Shares by the Company which, by reducing the number
of Shares outstanding, increases the proportionate number of Shares beneficially
owned by such Person to 10% or more of the Shares then outstanding; provided,
however, that if (x) a Person becomes the Beneficial Owner of 10% or more of the
Shares then outstanding by reason of Share purchases by the Company and shall,
after such Share purchases by the Company, become the Beneficial Owner of any
additional Shares, then such Person shall be deemed to be an "Acquiring Person,"
or (y) if the Board of Directors of the Company determines in good faith that a
person who would otherwise be an "Acquiring Person," as defined pursuant to the
foregoing provisions of this paragraph (a), has become such inadvertently, and
such Person divests as promptly as practicable a sufficient number of Shares so
that such Person would no longer be an "Acquiring Person," as defined pursuant
to the foregoing provisions of this paragraph (a), then such Person shall not be
deemed to be an "Acquiring Person" for any purposes of this Agreement.
(b) "Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as amended and in effect
on April 1, 1995 (the "Exchange Act").
(c) 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 (other than customary
agreements with and between underwriters and selling group members with
respect to a bona fide public offering of securities), or upon the
exercise of conversion rights, exchange rights, rights (other than
these 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 of 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 customary
agreements with and between underwriters and selling group members with
respect to a bona fide public offering of securities) for the purpose
of acquiring, holding, voting (except to the extent contemplated by the
proviso to Section 1(c)(ii)(B)) or disposing of any securities of the
Company.
Notwithstanding anything in this definition of Beneficial
Ownership to the contrary, the phrase "then outstanding," when used with
reference to a Person's Beneficial Ownership of securities of the Company, 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.
(d) "Business Day" shall mean any day other than a Saturday, a
Sunday, or a day on which banking institutions in the State of New York are
authorized or obligated by law or executive order to close.
(e) "Close of Business" on any given date shall mean 5:00
P.M., New York City time, on such date; provided, however, that if such date is
not a Business Day it shall mean 5:00 P.M., New York City time, on the next
succeeding Business Day.
(f) "Distribution Date" shall have the meaning set
forth in Section 3 hereof.
(g) "Final Expiration Date" shall have the meaning set
forth in Section 7 hereof.
(h) "Person" shall mean any individual, firm, partnership,
corporation or other entity, and shall include any successor (by merger or
otherwise) of such entity.
(i) "Redemption Date" shall have the meaning set forth
in Section 7 hereof.
(j) "Share" or "Shares" when used with reference to the
Company shall mean a share or shares of Common Stock, without par value, of the
Company. (Unless the context otherwise requires, "Shares" as used herein shall
mean Shares of the Company). "Shares" when used with reference to any Person
other than the Company shall mean the capital stock (or equity interest) with
the greatest voting power of such other Person, or the equity securities or
other equity interest having power to control or direct the management of such
Person or, if such other Person is a Subsidiary of another Person,
the Person or Persons which ultimately control such first-mentioned Person.
(k) "Shares Acquisition Date" shall mean the first date of
public announcement by the Company or an Acquiring Person that an Acquiring
Person has become such.
(l) "Subsidiary" of any Person shall mean any corporation or
other entity of which a majority of the voting power of the voting equity
securities or equity interest is owned, directly or indirectly, by such Person.
Unless otherwise specified herein, "Subsidiary" means a Subsidiary of the
Company.
Any determination required by the definitions contained in
this Section 1 shall be made by the Board of Directors of the Company in its
good faith judgment, which determination shall be binding on the Rights Agent.
Section 2. Appointment of Rights Agent. The Company hereby
appoints the Rights Agent to act as agent for the Company in accordance with the
terms and conditions hereof, and the Rights Agent hereby accepts such
appointment. The Company may from time to time appoint such co-Rights Agents as
it may deem necessary or desirable upon ten (10) days' prior written notice to
the Rights Agent. The Rights Agent shall have no duty to supervise, and shall in
no event be liable for the acts or omissions of, any such co-Rights Agent.
Section 3. Issue of Right Certificates. (a) Until
the earlier of (i) the Close of Business on the tenth day after
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 Company's Board of Directors) after the date of the commencement of, or
first public announcement of the intent to commence, a tender or exchange offer
by any Person (other than the Company, any Subsidiary of the Company or any
employee benefit plan of the Company or of any Subsidiary of the Company or any
Person or entity organized, appointed or established by the Company for or
pursuant to the terms of any such plan) the consummation of which would result
in any Person becoming an Acquiring Person (including any such date which is
after the date of this Agreement and prior to the issuance of the Rights, the
Close of Business on the earlier of such dates being herein referred to as the
"Distribution Date"), (A) the Rights will be evidenced (subject to the
provisions of Section 3(b) hereof) by the certificates for Shares of the Company
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 (B)
the right to receive Right Certificates will be transferable only in connection
with the transfer of such Shares. As soon as practicable after the Distribution
Date, the Company will prepare and execute, the Rights Agent will countersign,
and the Company will send or cause to be sent (and the Rights Agent will, if
requested, send, at the Company's expense) by first-class, postage-prepaid mail,
to each record holder of Shares of the Company as of the Close of Business on
the Distribution Date, at the address of such holder shown on the records of the
Company, a Right Certificate, in substantially the form of Exhibit A hereto (a
"Right Certificate"), evidencing one
Right for each Share so held. As of the Distribution Date, the Rights will be
evidenced solely by such Right Certificates.
(b) Until the Distribution Date (or the earlier of the
Redemption Date or Final Expiration Date), the surrender for transfer or
cancellation of any certificate for Shares of the Company outstanding shall also
constitute the transfer or cancellation, as the case may be, of the Rights
associated with the Shares represented thereby.
(c) Certificates for Shares of the Company which become
outstanding (including, without limitation, reacquired Shares referred to in the
last sentence of this paragraph (c)) after January 1, 1996 but prior to the
earliest of the Distribution Date, the Redemption Date or the Final Expiration
Date shall have impressed on, printed on, written on or otherwise affixed to
them the following legend:
This certificate also evidences and entitles the holder hereof to
certain rights as set forth in a Rights Agreement between SIGCORP, Inc.
and Continental Stock Transfer & Trust Company, dated as of December
31, 1995 (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 SIGCORP, Inc. Under certain
circumstances, as set forth in the Rights Agreement, such Rights will
be evidenced by separate certificates and will no longer be evidenced
by this certificate. SIGCORP, Inc. 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, including Affiliates or Associates
thereof (as such terms are defined in the Rights Agreement), whether
currently held by or on behalf of such Person or by any subsequent
holder, may become null and void.
With respect to such certificates containing the foregoing legend, until the
Distribution Date, the Rights associated with
the 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 Shares
represented thereby. In the event that the Company purchases or acquires any of
its Shares after December 31, 1995 but prior to the Distribution Date, any
Rights associated with such Shares shall be deemed cancelled and retired so that
the Company shall not be entitled to exercise any Rights associated with the
Shares which are no longer outstanding.
Section 4. Form of Right Certificates. (a) The Right
Certificates (and the form of election to purchase Shares and the form of
assignment to be printed on the reverse thereof) shall be substantially the same
as Exhibit A hereto and may have such marks of identification or designation and
such legends, summaries or endorsements printed thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of this Agreement,
or as may be required to comply with any applicable law or 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. The Right Certificates shall be in a machine printable format and a form
reasonably satisfactory to the Rights Agent. Subject to the provisions of
Section 22 hereof, the Right Certificates shall entitle the holders thereof to
purchase such number of one-hundredths of a Share as shall be set forth therein
at the price per one one-hundredth of a 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. The Right Certificates, whenever
distributed, shall be dated as of December 31, 1995, and shall show the date of
countersignature.
(b) Any Right Certificate issued pursuant to Section 3(a) or
Section 22 hereof that represents Rights beneficially owned by: (i) an Acquiring
Person or any Associate or Affiliate of an Acquiring Person, (ii) a transferee
of an Acquiring Person (or of any such Associate or Affiliate) who becomes a
transferee after the Acquiring Person becomes such, or (iii) a transferee of an
Acquiring Person (or of any such Associate or Affiliate) who becomes a
transferee prior to or concurrently with the Acquiring Person becoming such and
receives such Rights pursuant to either (A) a transfer (whether or not for
consideration) from the Acquiring Person to holders of equity interests in such
Acquiring Person or to any Person with whom such Acquiring Person has any
continuing agreement, arrangement or understanding regarding the transferred
Rights or (B) a transfer which the Board of Directors of the Company has
determined is part of a plan, arrangement or understanding which has as a
primary purpose or effect avoidance of Section 7(e) hereof, 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 an Associate of an Acquiring
Person (as such terms are defined in the Rights Agreement).
Accordingly, this Right Certificate and the Rights represented hereby
are or may become null and void.
The Company shall instruct the Rights Agent in writing of the
Right Certificates which should be so legended and shall supply the Rights Agent
with such legended Right Certificates.
Section 5. Countersignature and Registration. The Right
Certificates shall be executed on behalf of the Company by its Chairman of the
Board, its President, any of its Vice Presidents or its Treasurer either
manually or by facsimile signature, shall have affixed thereto the Company's
seal or a facsimile thereof, and shall be attested by its Secretary or Assistant
Secretary, either manually or by facsimile signature. The Right Certificates
shall be countersigned by an authorized signatory of the Rights Agent, which
need not be the same authorized signatory for all of the Right Certificates, and
shall not be valid for any purpose unless so countersigned. In case any officer
of the Company who shall have signed any of the Right Certificates shall cease
to be such officer of the Company before countersignature by the Rights Agent
and issuance and delivery by the Company, such Right Certificates, nevertheless,
may be countersigned by an authorized signatory of the Rights Agent and issued
and delivered by the Company with the same force and effect as though the person
who signed such Right Certificates had not ceased to be such officer of the
Company; and any Right Certificates may be signed on behalf of the Company by
any person who, at the actual date of the execution of such Right
Certificate, shall be a proper officer of the Company 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 principal corporate trust office, books for
registration of 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 date of each of the Right Certificates.
Section 6. Transfer, Split Up, Combination and Exchange of
Right Certificates; Mutilated, Destroyed, Lost or Stolen Right Certificates.
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
one one-hundredths of a Share as the Right Certificate or Right Certificates
surrendered then entitled such holder 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, along with a signature guarantee
and such other and further documentation as the Rights Agent may reasonably
request, at the principal corporate trust office of the Rights Agent. Thereupon
the Rights Agent shall countersign and deliver to the person entitled thereto a
Right Certificate or Right Certificates, as the case may be, as so requested.
The Company may require payment, by the holder of a Right Certificate, 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 Company 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 Company's request,
reimbursement to the Company and the Rights Agent of all reasonable expenses
incidental thereto, and upon surrender to the Rights Agent and cancellation of
the Right Certificate if mutilated, along with a signature guarantee and such
other and further documentation as the Rights Agent may reasonably request, the
Company will make and deliver a new Right Certificate of like tenor to the
Rights Agent for 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 Sections 7(e) and
9(b) hereof, the registered holder of any Right Certificate may exercise the
Rights evidenced thereby (except as otherwise provided herein) in whole or in
part at any time after the Distribution Date upon surrender of the Right
Certificate, with the form of election to purchase on the reverse side thereof
duly executed, to the Rights Agent at the principal corporate trust office of
the Rights Agent designated for such purpose, along with a signature guarantee
and such other and further documentation as the Rights Agent may reasonably
request, together with payment of the aggregate Purchase Price for the total
number of one one-hundredths of a Share as to which the Rights are exercised, at
or prior to the earliest of (i) the Close of Business on December 31, 2005 (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 time at which
the Rights are exchanged as provided in Section 24 hereof.
(b) The Purchase Price for each one one-hundredth of a Share
pursuant to the exercise of a Right shall initially be $.65, shall be subject to
adjustment from time to time as provided in Sections 11 and 13 hereof and shall
be payable in lawful money of the United States of America in accordance with
paragraph (c) below.
(c) Upon receipt of a Right Certificate representing
exercisable Rights with the form of election to purchase duly executed, along
with a signature guarantee and such other and further documentation as the
Rights Agent may reasonably request, and accompanied by payment
of the Purchase Price for the Shares 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 9 hereof in cash, or
by certified check or cashier's check payable to the order of the Company), the
Rights Agent shall thereupon promptly (i) (A) requisition from any transfer
agent of the Shares certificates for the number of Shares to be purchased and
the Company hereby irrevocably authorizes its transfer agent to comply with all
such requests, or (B) if the Company in its sole discretion shall have elected
to deposit the Shares issuable upon exercise of the Rights hereunder into a
depositary, requisition from the depositary agent depositary receipts
representing such number of one one-hundredths of a Share as are to be purchased
(in which case certificates for the Shares represented by such receipts shall be
deposited by the transfer agent with the depositary agent) and the Company will
direct the depositary agent to comply with such requests, (ii) when appropriate,
requisition from the Company the amount of cash to be paid in lieu of issuance
of fractional Shares in accordance with Section 14 hereof, (iii) when
appropriate, requisition from the Company the amount of cash, property or
securities to be paid in lieu of Shares in accordance with Section 11(a)(iii)
hereof, (iv) 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 (v) when appropriate, after
receipt, deliver such cash, property or securities to or upon the order of the
registered holder of such Right Certificate. The payment of the Purchase Price
may be made (x) in cash or by certified bank check or bank draft payable to the
order of the Company, or (y) by delivery of a certificate or certificates (with
appropriate stock powers executed in blank attached thereto) evidencing a number
of Shares equal to the then Purchase Price divided by the closing price (as
determined pursuant to Section 11(d) hereof) per share of Shares at the Close of
Business on the Business Day immediately preceding the date of such exercise. In
the event that the Company is obligated to issue other securities (including
Shares) of the Company, pay cash and/or distribute other property pursuant to
Section 11(a)(iii) hereof, the Company will make all arrangements necessary so
that such other securities, cash and/or other property are available for
distribution by the Rights Agent, if and when appropriate.
(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.
(e) Notwithstanding anything in this Agreement to the
contrary, any Rights that are or were at any time on or after the
earlier of the Distribution Date and the shares Acquisition Date
(i) beneficially owned by an Acquiring Person or an Associate or Affiliate of an
Acquiring Person, (ii) transferred by an Acquiring Person (or any such Associate
or Affiliate) after the Acquiring Person becomes such, or (iii) transferred by
an Acquiring Person (or any such Associate or Affiliate) prior to or
concurrently with the Acquiring Person becoming such and if the transferee
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 any
continuing agreement, arrangement or understanding regarding the transferred
Rights or (B) a transfer which the Board of Directors of the Company 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, from and
after the first occurrence of any event described in Section 11(a)(ii)(A), (B)
or (C) or the first sentence of Section 13, become null and void without any
further action and no holder of such Rights shall have any rights whatsoever
with respect to such Rights, whether under any provision of this Agreement or
otherwise. The Company shall use all reasonable efforts to ensure that the
provisions of this Section 7(e) and Section 4(b) hereof are complied with, but
shall have no liability to any holder of Right Certificates or any 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 Company shall be obligated to
undertake any action with respect to a registered holder of a Right Certificate
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 Company
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 Company 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 Company shall deliver to
the Rights Agent for cancellation and retirement, and the Rights Agent shall so
cancel and retire, any other Right Certificate purchased or acquired by the
Company otherwise than upon the exercise thereof. The Rights Agent shall deliver
all canceled Right Certificates to the Company.
Section 9. Reservation and Availability of Shares. (a) The
Company covenants and agrees that, as soon as practicable following the first
occurrence of an event referred to in Section 11(a)(ii)(A), (B) or (C) or in the
first sentence of Section 13, it will take all such action as may be necessary
(except as otherwise provided in Section 11(a)(iii) hereof) to cause to be
reserved and kept available out of its authorized and unissued Shares or any
Shares held in its treasury, the number of Shares that will be sufficient to
permit the exercise in full of all outstanding Rights.
(b) The Company shall use its best efforts, as soon as
practicable following the first occurrence of an event referred to in Section
11(a)(ii)(A), (B) or (C) or in the first sentence of Section 13, to (i) file a
registration statement under the Securities Act of 1933, as amended (the "Act"),
with respect to the Shares purchasable upon exercise of the Rights (and, if
legally required, the Rights themselves) on an appropriate form, (ii) cause such
registration statement to become effective as soon as practicable after such
filing, and (iii) cause such registration statement to remain effective (with a
prospectus at all times meeting the requirements of the Act) until the earlier
of the Redemption Date or the Final Expiration Date. The Company will also take
such action as may be appropriate under the blue sky laws of the various states.
The Company may temporarily suspend, for a period of time not to exceed 90 days,
the exercisability of the Rights in order to prepare and file such registration
statement and such application. Upon any such
suspension, the Company shall issue a public announcement, and shall give
simultaneous written notice to the Rights Agent, stating that the exercisability
of the Rights has been temporarily suspended. Notwithstanding any provision of
this Agreement to the contrary, the Rights shall not be exercisable in any
jurisdiction, unless the requisite qualification in such jurisdiction shall have
been obtained, or an exemption therefrom shall be available and until any
necessary registration statement has been declared effective. In the absence of
actual written notice from the Company, the Rights Agent may assume that any
Right exercised is permitted to be exercised under applicable law and shall have
no liability for acting in reliance upon such assumption.
(c) The Company covenants and agrees that it will take all
such action as may be necessary to ensure that all Shares delivered upon
exercise of Rights shall, at the time of delivery of the certificates for such
Shares (subject to payment of the Purchase Price), be duly and validly
authorized and issued and fully paid and nonassessable Shares, except as
otherwise provided in Section 11(a)(iii).
(d) The Company further covenants and agrees that it will pay
when due and payable any and all federal and state transfer taxes and charges
which may be payable in respect of the issuance or delivery of the Right
Certificates or of any Shares upon the exercise of Rights. The Company shall
not, however, be required to pay any transfer tax which may be payable in
respect of any transfer or delivery of Right Certificates to a person
other than, or the issuance or delivery of certificates for the Shares 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 for
Shares 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 Company's satisfaction
that no such tax is due.
Section 10. Record Date for Shares. Each person in whose name
any certificate for Shares is issued upon the exercise of Rights shall for all
purposes be deemed to have become the holder of record of the Shares 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 stock
transfer books of the Company are closed, such person shall be deemed to have
become the record holder of such Shares on, and such certificate shall be dated,
the next succeeding Business Day on which the stock transfer books of the
Company are open. Prior to the exercise of the Rights evidenced thereby, the
holder of a Right Certificate shall not be entitled to any rights of a holder of
Shares for which the Rights shall be exercisable, including, without limitation,
the right to vote or to receive dividends or other
distributions, and shall not be entitled to receive any notice of any
proceedings of the Company, except as provided herein.
Section 11. Adjustment of Purchase Price, Number of Shares or
Number of Rights. The Purchase Price, the number of Shares (or fractions
thereof) covered by each Right and the number of Rights outstanding are subject
to adjustment from time to time as provided in this Section 11.
(a) (i) In the event the Company shall at any time after the
date of this Agreement (A) declare a dividend on its outstanding Shares payable
in Shares, (B) subdivide its outstanding Shares, (C) combine its outstanding
Shares into a smaller number of Shares or (D) issue any shares of its capital
stock in a reclassification of the Shares (including any such reclassification
in connection with a consolidation or merger in which the Company is the
continuing or surviving corporation), except as otherwise provided in this
Section 11(a), the Purchase Price in effect at the time of the record date for
such dividend or of the effective date of such subdivision, combination or
reclassification, and the number and kind of shares of capital stock issuable on
such date, shall be proportionately adjusted so that the holder of any Right
exercised 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 stock transfer books of
the Company were open, he would have owned upon such exercise and been entitled
to receive by virtue of such dividend, subdivision, combination or
reclassification. If an event occurs which would
require an adjustment under both Section 11(a)(i) and Section 11(a)(ii), the
adjustment provided for in this Section 11(a)(i) shall be in addition to, and
shall be made prior to any adjustment required pursuant to, Section 11(a)(ii).
(ii) Subject to Section 24 hereof, in the
event
(A) any Acquiring Person or any Associate or
Affiliate of any Acquiring Person, at any time after the date of this
Agreement, directly or indirectly, (1) shall merge into the Company or
otherwise combine with the Company or any of its Subsidiaries, and the
Company or such Subsidiary shall be the continuing or surviving
corporation of such merger or consolidation, and the Shares shall
remain outstanding and unchanged, or (2) shall, in one or more
transactions, transfer any assets to the Company in exchange (in whole
or in part) for Shares or for securities exercisable for or convertible
into Shares or otherwise obtain from the Company, with or without
consideration, any additional Shares or other securities exercisable
for or convertible into Shares (other than as a part of a pro rata
distribution to all holders of such securities), or (3) shall sell,
purchase, lease, exchange, acquire, mortgage, pledge, transfer or
otherwise dispose of (in one transaction or a series of transactions),
to, from or with the Company or any of the Company's Subsidiaries,
other than incidental to the lines of business currently engaged in as
of the date hereof between the Company and its Subsidiaries taken as a
whole and such Acquiring Person or Associate or Affiliate, assets, or
an interest therein, having an aggregate fair market value of more than
$1 million, or (4) shall sell, purchase, lease, exchange, mortgage,
acquire, pledge, transfer or otherwise dispose of (in one transaction
or a series of transactions), to, from or with the Company or any of
the Company's Subsidiaries, assets or an interest therein on terms and
conditions less favorable to the Company than the Company would be able
to obtain through arm's-length negotiation with an unaffiliated third
party, or (5) shall receive any compensation from the Company or any of
the Company's Subsidiaries other than compensation for full-time
employment as a regular employee at rates in accordance with the
Company's (or its Subsidiaries') past practices, or (6) shall receive
the benefit, directly or indirectly (except proportionately as a
shareholder), of any loans, advances, guarantees, pledges or other
financial assistance or any tax credits or other tax advantage provided
by the Company or any of its Subsidiaries, or
(B) during such time as there is an
Acquiring Person, there shall be any reclassification of securities
(including any reverse stock split), or recapitalization of the Company
or any merger or consolidation of the Company with any of its
Subsidiaries or any other transaction or series of transactions
(whether or not with or into or otherwise involving an Acquiring
Person) which has the effect, directly or indirectly, of increasing
by more than 1% the proportionate share of the outstanding shares of
any class of equity or convertible securities of the Company or any of
its Subsidiaries which is directly or indirectly owned by any Acquiring
Person or any Associate or Affiliate of any Acquiring Person, or
(C) any Person, alone or together with its
Affiliates and Associates, shall at any time after the date of this
Agreement become an Acquiring Person (subject to the exceptions and
qualifications in the definition of such term set forth in Section 1(a)
hereof),
then, and in each such case, proper provision shall be made so that each holder
of a Right, except as provided in Section 7(e) hereof, shall thereafter have the
right to receive (subject to Section 11(a)(iii) hereof), upon exercise thereof
at a price equal to one hundred (100) times the product of the then current
Purchase Price multiplied by the number of one one-hundredths of a Share for
which a Right is then exercisable, in accordance with the terms of this
Agreement, and in lieu of Shares otherwise issuable upon exercise of the Right,
such number of Shares as shall equal the result obtained by (x) multiplying by
one hundred (100) the product of the then current Purchase Price by the number
of one one-hundredths of a Share for which a Right was exercisable immediately
prior to the first occurrence of any one of the events listed above in this
Section 11(a)(ii), and dividing that resulting product by (y) 50% of the current
per share market price of the Shares (determined pursuant to Section 11(d)) on
the date of such first occurrence; 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 subparagraph (ii).
(iii) In the event that there shall not be
sufficient authorized but unissued Shares (and authorized and issued Shares held
in the treasury) not reserved for other purposes to permit the exercise in full
of the Rights in accordance with the foregoing subparagraph (ii), the Company
shall take all such action as may be necessary to authorize additional Shares
for issuance upon exercise of the Rights; provided, however, that if the Company
is unable to, or for any reason does not promptly, cause the authorization of a
sufficient number of additional Shares, or is unable for any reason to issue
Shares upon the exercise of the Rights as provided herein, then, in the event
the Rights become exercisable as provided in Section 7(a), the Company, with
respect to each Right and to the extent necessary under and permitted by
applicable law and any agreements or instruments in effect on the Distribution
Date to which it is a party, shall make adequate provision to substitute for
that number of the Shares as to which additional Shares have not been authorized
for issuance or as to which it is constrained from issuing: (A) an amount in
cash equal to the excess of (1) the product of (x) the number of Shares as to
which the Right would otherwise be exercisable pursuant to Section 11(a)(ii),
multiplied by (y) the current market price (determined pursuant
to Section 11(d)) per Share on the date on which the applicable event set forth
in Section 11(a)(ii) occurs (such product being hereinafter referred to as the
"Current Value"), over (2) the Purchase Price, in lieu of issuing Shares and
requiring payment therefor, (B) debt or equity securities (other than Shares)
having a value equal to the Current Value, where the value of such securities
shall be determined by a nationally recognized investment banking firm selected
by the Board of Directors of the Company, and requiring the payment of the
Purchase Price, or (C) any combination of cash, property, common share
equivalents (securities having the same value as the Shares) and/or other
securities having the requisite value pursuant to Section 11 as determined by a
nationally recognized investment banking firm selected by the Board of Directors
of the Company and requiring the payment of all or any requisite portion of the
Purchase Price; provided further, however, that if the Company shall not have
made adequate provision to deliver value pursuant to clause (A), (B) or (C)
above within 60 days following the date of the occurrence of the applicable
event listed in Section 11(a)(ii), then the Company, as liquidated damages and
in complete satisfaction of all claims and liabilities that may arise in favor
of the holders of the Rights as a result of not having made such adequate
provision, shall be obligated to deliver cash in accordance with clause (A)
above. To the extent that the Company determines that some action need be taken
pursuant to clause (A), (B) or (C) of the first proviso to the first sentence of
this Section 11(a)(iii), the Company may suspend the exercisability of
the Rights for a period of up to 60 days following the date of the occurrence of
the applicable event listed in Section 11(a)(ii)(A), (B) or (C), in order to
decide the appropriate form of distribution to be made pursuant to such first
proviso and to determine the value thereof. In the event of any such suspension,
the Company shall issue a public announcement, and shall give simultaneous
written notice to the Rights Agent, stating that the exercisability of the
Rights has been temporarily suspended.
(b) In case the Company shall fix a record date for the
issuance of rights, options or warrants to all holders of its Shares entitling
them (for a period expiring within 45 calendar days after such record date) to
subscribe for or purchase Shares or securities convertible into Shares at a
price per Share (or having a conversion price per share, if a security
convertible into Shares) less than the then current per share market price of
the Shares (as defined in Section 11(d)) on such record date, the Purchase Price
to be in effect after such record date shall be determined by multiplying the
Purchase Price in effect immediately prior to such record date by a fraction,
the numerator of which shall be the number of Shares outstanding on such record
date plus the number of Shares which the aggregate offering price of the total
number of 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
market price and the denominator of which shall be the number of Shares of the
Company outstanding on such record date plus the
number of additional Shares to be offered for subscription or purchase (or into
which the convertible securities so to be offered are initially convertible). In
case such subscription price may be paid in a consideration part or all of which
shall be in a form other than cash, the value of such consideration shall be as
determined in good faith by the Board of Directors of the Company, whose
determination shall be described in a statement filed with the Rights Agent.
Shares owned by or held for the account of the Company shall not be deemed
outstanding for the purpose of any such computation. Such adjustment shall be
made successively whenever such a record date is fixed; and in the event that
such rights or warrants are not so issued, the Purchase Price shall be adjusted
to be the Purchase Price which would then be in effect if such record date had
not been fixed.
(c) In case the Company shall fix a record date for the making
of a distribution to all holders of its Shares (including any such distribution
made in connection with a consolidation or merger in which the Company is the
continuing or surviving corporation) of evidences of indebtedness or assets
(other than a regular quarterly cash dividend or a dividend payable in 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 of the Shares (as defined in Section 11(d)) on such record
date, less the fair market value
(as determined in good faith by the Board of Directors of the Company, whose
determination shall be described in a statement filed with the Rights Agent) of
the portion of the assets or evidences of indebtedness so to be distributed or
of such subscription rights or warrants applicable to one Share and the
denominator of which shall be such current per share market price of the Shares.
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 have been in
effect if such record date had not been fixed.
(d) 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)) on any date shall be deemed to be the average of the daily
closing prices per share of such Security for the 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 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 Systems ("NASDAQ") or such other similar
system as may then be in use, or, if on any such date the Security is not quoted
by any such system, 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 Company. If no such market maker is making a market in
the Security, "current per share market price" shall mean the fair value per
share as determined in good faith by the Board of Directors of the Company. 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.
(e) Anything herein to the contrary notwithstanding, no
adjustment in the Purchase Price shall be required unless such adjustment would
require an increase or decrease of at least 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 one one-hundredth of a Share or to the
nearest one ten-thousand 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) 3
years from the date of the transaction which requires such adjustment or (ii)
the Final Expiration Date.
(f) If, as a result of an adjustment made pursuant to Section
11(a), the holder of any Right thereafter exercised shall become entitled to
receive any shares of capital stock of the Company other than Shares, thereafter
the number of such other shares so receivable upon exercise of any Right shall
be subject to adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to the Shares contained
in Section 11(a) through (c), (h) and (i), and the provisions of Sections 7, 9,
10, 13 and 14 with respect to the Shares shall apply on like terms to any
such other shares.
(g) All Rights originally issued by the Company subsequent to
any adjustment made to the Purchase Price hereunder shall evidence the right to
purchase, at the adjusted Purchase Price, the number of one one-hundredths of a
Share or other capital stock or securities purchasable from time to time
hereunder upon exercise of the Rights, all subject to further adjustment as
provided herein.
(h) Unless the Company shall have exercised its election as
provided in Section 11(i), upon each adjustment of the Purchase Price as a
result of the calculations made in Section 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 one
one-hundredths of a Share (calculated to the nearest one one-hundredth of a
Share) obtained by (i) multiplying (x) the number of one one-hundredths of a
Share covered by a Right immediately prior to this adjustment by (y) the
Purchase Price in effect immediately prior to such adjustment of the Purchase
Price and (ii) dividing the product so obtained by the Purchase Price in effect
immediately after such adjustment of the Purchase Price.
(i) The Company may elect on or after the date of any
adjustment of the Purchase Price to adjust the number of Rights, in substitution
for any adjustment in the number of one one-hundredths of a Share 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 one
one-hundredths of a Share 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 tenthousandth) obtained by dividing the Purchase Price in effect immediately
prior to adjustment of the Purchase Price by the Purchase Price. The Company
shall make a public announcement of its election to adjust the number of Rights
indicating the record date for the adjustment, and, if known at the time, the
amount of the adjustment to be made. Such 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 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 Company
shall, as promptly as practicable, cause to be distributed to holders of record
of Right Certificates on such record date Right Certificates evidencing, subject
to Section 14 hereof, the additional Rights to which such holders shall be
entitled as a result of such adjustment, or, at the option of the Company, shall
cause to be distributed to such holders of record in substitution and
replacement for the Right Certificates held by such holders prior to the date of
adjustment, and upon surrender thereof, if required by the Company, new Right
Certificates evidencing all the Rights to which such holders shall be entitled
after such adjustment. Right Certificates so to be distributed shall be issued,
executed and 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 specified in the public announcement.
(j) Irrespective of any adjustment or change in the Purchase
Price or the number of one one-hundredths of a Share issuable upon the exercise
of the Rights, the Right Certificates theretofore and thereafter issued may
continue to express the Purchase Price and the number of one one-hundredths of a
Share 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 Shares
issuable upon exercise of the Rights, the Company shall take any corporate
action which may, in the opinion of its counsel, be necessary in order that the
Company may validly and legally issue fully paid and nonassessable Shares at
such adjusted Purchase Price.
(l) In any case in which this Section 11 shall require that an
adjustment in the Purchase Price be made effective as of a record date for a
specified event, the Company may elect to defer until the occurrence of such
event the issuing to the holder of any Right exercised after such record date of
the Shares and other capital stock or securities of the Company, if any,
issuable upon such exercise over and above the Shares and other capital stock or
securities of the Company, if any, issuable upon such exercise on the basis of
the Purchase Price in effect prior to such adjustment; provided, however, that
the Company shall deliver to such holder a due xxxx or other appropriate
instrument evidencing such holder's right to receive such additional Shares
or other capital stock or securities upon the occurrence of the event
requiring such adjustment.
(m) Anything in this Section 11 to the contrary
notwithstanding, the Company shall be entitled to make such reductions in the
Purchase Price, in addition to those adjustments expressly required by this
Section 11, as and to the extent that it in its sole discretion shall determine
to be advisable in order that (A) any consolidation or subdivision of the
Shares, (B) issuance wholly for cash of any Shares at less than the current
market price, (C) issuance wholly for cash of Shares or securities which by
their terms are convertible into or exchangeable for Shares, (D) dividends on
Shares payable in Shares, or (E) issuance of rights, options or warrants
referred to hereinabove in Section 11(b), hereafter made by the Company to
holders of its Shares shall not be taxable to such holders.
Section 12. Certificate of Adjusted Purchase Price or Number
of Shares. Whenever an adjustment is made as provided in Sections 11 and 13
hereof, the Company shall 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 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.
Section 13. Consolidation, Merger or Sale or Transfer of
Assets or Earning Power. In the event that, on or following the Shares
Acquisition Date, directly or indirectly, (i) the Company shall consolidate
with, or merge with and into, any other Person, (ii) any Person shall
consolidate with the Company, or merge with and into the Company and the Company
shall be the continuing or surviving corporation of such merger and, in
connection with such merger, all or part of the Shares shall be changed into or
exchanged for stock or other securities of any other Person (or the Company) or
cash or any other property, or (iii) the Company shall sell or otherwise
transfer (or one or more of its Subsidiaries shall sell or otherwise transfer),
in one or more transactions, assets or earning power aggregating 50% or more of
the assets or earning power of the Company and its Subsidiaries (taken as a
whole) to any other Person other than the Company or one or more of its wholly
owned Subsidiaries, then, and in each such case, proper provision shall be made
so that (A) each holder of a Right (except as otherwise provided herein) shall
thereafter have the right to receive, upon the exercise thereof at a price equal
to one hundred (100) times the product of the then current Purchase Price
multiplied by the number of one one-hundredths of a Share for which a Right is
then exercisable, in accordance with the terms of this Agreement, and in lieu of
Shares otherwise issuable upon exercise of the Right, such number of Shares of
such other Person (including the Company as successor thereto or as the
surviving corporation) as shall equal the result obtained by (x) multiplying by
one hundred (100) the product of the then current Purchase Price by
the number of one one-hundredths of a Share of the Company for which a Right
is then exercisable and dividing that product by (y) 50% of the then current per
share market price of the Shares of such other Person (determined pursuant to
Section 11(d)) on the date of consummation of such consolidation, merger, sale
or transfer (such number of shares to be appropriately adjusted in a manner
analogous to the applicable adjustment to the Purchase Price provided for in
Section 11 in the event that during the two-year period after such date of
consummation or occurrence an event of a type analogous to any of the events
described in Section 11 hereof shall have occurred with respect to such
Shares); (B) the issuer of such Shares shall thereafter be liable for, and shall
assume, by virtue of such consolidation, merger, sale or transfer, all the
obligations and duties of the Company pursuant to this Agreement; (C) the term
"Company" shall thereafter be deemed to refer to such issuer; and (D) such
issuer shall take such steps (including, but not limited to, the reservation of
a sufficient number of its Shares in accordance with Section 9 hereof)
in connection with such consummation as may be necessary
to assure that the provisions hereof shall thereafter be applicable,
as nearly as reasonably may be, in relation to the Shares thereafter
deliverable upon the exercise of the Rights. The Company shall
not enter into any transaction of the kind referred to in this Section 13 if at
the time of such transaction there are any rights, warrants, instruments or
securities outstanding or any agreements or arrangements which, as a result
of the consummation of such transaction, would eliminate or substantially
diminish the benefits intended to be afforded by the Rights. The Company shall
not consummate any such consolidation, merger, sale or transfer unless prior
thereto the Company and such issuer shall have executed and delivered to the
Rights Agent a supplemental agreement evidencing compliance with this Section
13. The provisions of this Section 13 shall similarly apply to successive
mergers or consolidations or sales or other transfers. The Rights Agent may rely
and be fully protected in relying upon a certificate of the Company stating that
the provisions of this Section 13 have been fulfilled. Notwithstanding anything
in this Agreement to the contrary, the prior written consent of the Rights Agent
must be obtained in connection with any such supplemental agreement which, in
the reasonable opinion of the Rights Agent, materially adversely alters the
rights or duties of the Rights Agent.
Section 14. Fractional Rights and Fractional Shares. (a) The
Company 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 similar system as
may then be 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 Company. 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 Company shall be used.
(b) The Company shall not be required to issue fractions of
Shares (other than fractions which are one one-hundredth or integral multiples
of one one-hundredth of a Share) upon exercise of the Rights or to distribute
certificates which evidence fractional Shares (other than fractions
which are one one-hundredth or integral multiples of one one-hundredth of a
Share). Fractions of Shares in integral multiples of one one-hundredth of a
Share may, at the election of the Company, be evidenced by depositary receipts,
pursuant to an appropriate agreement between the Company and a depositary
selected by it; provided that such agreement shall provide that the holders
of such depositary receipts shall have the rights, privileges and preferences to
which they are entitled as beneficial owners of the Shares represented by such
depositary receipts. In lieu of fractional Shares that are not one
one-hundredth or integral multiples of one one-hundredth of a Share,
the Company 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
Share. For purposes of this Section 14(b), the current market value of a Share
shall be the closing price of a Share (as determined pursuant to the second
sentence of Section 11(d) hereof) for the Trading Day immediately prior to the
date of such exercise.
(c) Following the occurrence of one of the transactions or
events specified in Section 11 giving rise to the right to receive Shares,
capital stock equivalents or other securities upon the exercise of a Right, the
Company shall not be required to issue fractions of shares or units of such
Shares, capital stock equivalents or other securities upon exercise of the
Rights or to distribute certificates which evidence fractions of such Shares,
capital stock equivalents or other securities.
In lieu of fractional shares or units of such Shares, capital stock equivalents
or other securities, the Company may 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 a share or
unit of such Shares, capital stock equivalents or other securities. For purposes
of this Section 14(c), the current market value shall be determined in the
manner set forth in Section 11(d) hereof for the Trading Day immediately prior
to the date of such exercise and, if such capital stock equivalent is not
traded, each such capital stock equivalent shall have the value of one
one-hundredth of a Share.
(d) The holder of a Right by the acceptance of the Right
expressly waives his right to receive any fractional Rights or any fractional
Shares 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 Shares); and any registered holder of any Right Certificate (or, prior to
the Distribution Date, of the 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 Shares), may, in his own behalf and for his own benefit, enforce,
institute and maintain any suit, action or proceeding against the
Company 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, 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 Company and the
Rights Agent and with every other holder of a Right that:
(a) prior to the Distribution Date, the Rights will be
transferable only in connection with the transfer of the Shares;
(b) after the Distribution Date, the Right Certificates will
be transferable only on the registry books of the Rights Agent if surrendered at
the principal corporate trust office of the Rights Agent, duly endorsed or
accompanied by a proper instrument of transfer along with a signature guarantee
and such other and further documentation as the Rights Agent may reasonably
request;
(c) the Company and the Rights Agent may deem and treat the
person in whose name the Right Certificate (or, prior to the Distribution Date,
the associated Shares certificate) is registered as the absolute owner thereof
and of the Rights evidenced thereby (notwithstanding any notations
of ownership or writing on the Right Certificates or the associated Shares
certificate made by anyone other than the Company or the Rights Agent) for all
purposes whatsoever, and neither the Company nor the Rights Agent shall be
affected by any notice to the contrary; and
(d) notwithstanding anything in this Agreement to the
contrary, neither the Company nor the Rights Agent shall have any liability to
any holder of a Right or 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 that the Company shall 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 Shareholder.
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 Shares or any other
securities of the Company which may at any time be issuable on the exercise of
the Rights represented thereby, nor shall anything contained herein or in any
Right Certificate be construed to confer upon the holder of any Right
Certificate, as such, any of the rights of a
shareholder of the Company or any right to vote for the election of directors or
upon any matter submitted to shareholders at any meeting thereof, or to give or
withhold consent to any corporate action, or to receive notice of meetings or
other actions affecting shareholders (except as provided in Section 25 hereof),
or to receive dividends 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 Company agrees to
pay to the Rights Agent such compensation as shall be agreed to in writing by
the Company and the Rights Agent 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 expenses and other disbursements incurred in the administration
and execution of this Agreement and the exercise and performance of its duties
hereunder. The Company also agrees to indemnify the Rights Agent for, and to
hold it harmless against, any and all loss, liability, damage, claim 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, without
limitation, the costs and expenses of defending against any claim of liability
in the premises.
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 the Shares or for other
securities of the Company, instrument of assignment or transfer, power of
attorney, endorsement, affidavit, letter, notice, direction, consent,
certificate, statement, or other paper or document believed by it to be genuine
and to be signed and executed by the proper person or persons and, where
necessary, verified or acknowledged.
The provisions of the first paragraph of this Section 18 shall
survive the expiration of the Rights and the termination of this Agreement.
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 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
the 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 Rights Agent or in the name
of the successor Rights Agent; and in all such cases such Right Certificates
shall have the full force provided in the Right Certificates and in this
Agreement.
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 counter
signature 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 the duties and obligations expressly imposed by this Agreement, and
no implied duties or obligations shall be read into this Agreement against the
Rights Agent, upon the following terms and conditions, by all of which the
Company and the holders of Right Certificates, by their acceptance thereof,
shall be bound:
(a) The Rights Agent may consult with legal counsel of
its selection (who may be legal counsel for the Company), and the
opinion of such counsel shall be full and complete authorization and protection
to the Rights Agent as to any action taken or omitted by it in good faith and in
accordance with such opinion.
(b) Whenever in the performance of its duties under this
Agreement the Rights Agent shall deem it necessary or desirable that any fact or
matter be proved or established by the Company prior to taking or suffering any
action hereunder, such fact or matter (unless other evidence in respect
thereof be herein specifically prescribed) may be deemed to be conclusively
proved and established by a certificate signed by any one of the
Chairman, the President, any Vice President, the Treasurer or the Secretary of
the Company and delivered to the Rights Agent; and such certificate shall be
full authorization to the Rights Agent for any action taken or suffered in good
faith by it under the provisions of this Agreement in reliance upon such
certificate.
(c) The Rights Agent shall be liable hereunder to the
Company and any other Person 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 thereof) or be required to
verify the same, but all such statements and recitals are and shall be deemed to
have been made by the Company only.
(e) The Rights Agent shall not be under any
responsibility in respect of the validity of this Agreement or
the execution and delivery hereof (except the due execution hereof by the Rights
Agent) or in respect of the validity or execution of any Right Certificate
(except its countersignature thereof); nor shall it be responsible for any
breach by the Company of any covenant or condition contained in this Agreement
or in any Right Certificate; nor shall it be responsible for any change in the
exercisability of the Rights or any adjustment in the terms of the Rights
(including the manner, method or amount thereof) provided for in Section 3, 11,
13, 23 or 24, or the ascertaining of the existence of facts that would require
any such change or adjustment (except with respect to the exercise of Rights
evidenced by Right Certificates after actual notice that such change or
adjustment is required); nor shall it by any act hereunder be deemed to make any
representation or warranty as to the authorization or reservation of any Shares
to be issued pursuant to this Agreement or any Right Certificate or as to
whether any Shares will, when issued, be validly authorized and issued, fully
paid and nonassessable.
(f) The Company agrees that it will perform, execute,
acknowledge and deliver or cause to be performed, executed, acknowledged and
delivered all such further and other acts, instrument 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, the President, any
Vice President, the Secretary or the Treasurer of the Company, and to apply to
such officers for advice or instructions in connection with its duties, and it
shall not be liable for any action taken or suffered by it in good faith in
accordance with instructions of any such officer or for any delay in acting
while waiting for those instructions.
(h) Any application by the Rights Agent for written
instructions from the Company may, at the option of the Rights Agent, set forth
in writing any action proposed to be taken or omitted by the Rights Agent under
this Agreement and the date on and/or after which such action shall be taken or
such omission shall be effective. The Rights Agent shall not be liable for any
action taken by, or omission of, the Rights Agent in accordance with a proposal
included in 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 Company actually receives such application, unless any such officer shall
have consented in writing to any earlier date) unless prior to taking any such
action (or the effective date in the case of an omission), the Rights Agent
shall have received written instructions in response to such application
specifying the action to be taken or omitted.
(i) The Rights Agent and any shareholder, director, officer
or employee of the Rights Agent may buy, sell or deal in any of the Rights or
other securities of the Company or become pecuniarily interested in any
transaction in which the Company may be interested, or contract with or lend
money to the Company or otherwise act as fully and freely as though it were not
Rights Agent under this Agreement. Nothing herein shall preclude the Rights
Agent from acting in any other capacity for the Company or for any other Person.
(j) The Rights Agent may execute and exercise any of the
rights or powers hereby vested in it or perform any duty hereunder either itself
or by or through its attorneys or agents, and the Rights Agent shall not be
answerable or accountable for any act, default, neglect or misconduct of any
such attorneys or agents or for any loss to the Company resulting from any such
act, default, neglect or misconduct, provided reasonable care was exercised in
the selection thereof.
(k) 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.
(l) If, with respect to any Right 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), each as set
forth in Exhibit A, has not been completed or indicates an affirmative response
to clause 1 or 2 thereof, the Rights Agent need not take any further action with
respect to such requested exercise or transfer without first consulting with the
Company.
(m) In addition to the foregoing, the Rights Agent shall be
protected and shall incur no liability for, or in respect of, any action taken
or omitted by it in connection with its administration of this Agreement if such
acts or omissions are in reliance upon (i) the proper execution of the
certificate appended to the form of assignment relating to beneficial ownership
and the form of election to purchase, each as set forth in Exhibit A, unless the
Rights Agent shall have actual knowledge that, as executed, such certification
is untrue, or (ii) the non- execution of such certification including, without
limitation, any refusal to honor any otherwise permissible assignment or
election by reason of such non-execution.
(n) The Company agrees to give the Rights Agent prompt
written notice of any event or ownership which would prohibit the exercise
or transfer generally of the Right Certificates.
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 30 days' notice in writing mailed to the Company and to each
transfer agent of the Shares by registered or certified mail. The Company may
remove the Rights Agent or any successor Rights Agent upon 30 days' notice in
writing, mailed to the Rights Agent or successor Rights Agent, as the case may
be, and to each transfer agent of the Shares by registered or certified mail,
and to the holders of the Right Certificates by first-class mail. If the Rights
Agent shall resign or be removed or shall otherwise become incapable of acting,
the Company shall appoint a successor to the Rights
Agent. If the Company shall fail to make such appointment within a period of 30
days after giving notice of such removal or after it has been notified in
writing of such resignation or incapacity by the resigning or incapacitated
Rights Agent or by the holder of a Right Certificate (who shall, with such
notice, submit his Right Certificate for inspection by the Company), then the
Company shall become the Rights Agent until a successor Rights Agent has been
appointed and 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 Company or by such a court,
shall be a corporation, organized and doing business under the law of the United
States or of any state of the United States, in good standing, which is
authorized under such laws to exercise corporate trust powers and is subject to
supervision or examination by federal or state authority and which has at the
time of its appointment as Rights Agent a combined capital and surplus of at
least $50 million. After appointment, the successor Rights Agent shall be vested
with the same powers, rights, duties and responsibilities as if it had been
originally named as Rights Agent without further act or deed; but the
predecessor Rights Agent shall deliver and transfer to the successor Rights
Agent any property at the time held by it hereunder, and execute and deliver any
further assurance, conveyance, act or deed necessary for the purpose. Not later
than the effective date of any such appointment the Company shall file notice
thereof in writing with the predecessor Rights Agent
and each transfer agent of the 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 Company may, at its option, subject to Section 4 hereof, issue new
Right Certificates evidencing Rights in such form as may be approved by its
Board of Directors to reflect any adjustment or change in the Purchase Price 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.
Section 23. Redemption. (a) The Board of Directors of the
Company may, at its option, at any time prior to 5:00 P.M., New York City time,
on the earlier of (i) the Close of Business on the tenth day following the
Shares Acquisition Date (or such later date as the Board of Directors then in
office may determine), or (ii) the Final Expiration Date, redeem all but not
less than all of the then outstanding Rights at a redemption price of $.01 per
Right, as such amount may be appropriately adjusted to reflect any stock split,
stock dividend or similar transaction occurring after the date hereof (such
redemption price being hereinafter referred to as the "Redemption Price");
provided, however, that if, following the occurrence of a Shares
Acquisition Date and following the expiration of the right of redemption
hereunder but prior to any event referred to in Section 11(a)(ii)(A) or (B) or
in the first sentence of Section 13, each of the following shall have occurred
and remain in effect: (i) a Person who is an Acquiring Person shall have
transferred or otherwise disposed of a number of Shares in a transaction, or
series of transactions, which did not result in the occurrence of an event
referred to in Section 11(a)(ii)(A) or (B) or in the first sentence of Section
13, such that such Person is thereafter a Beneficial Owner of less than 10% of
the Shares, (ii) there are no other Persons, immediately following the
occurrence of the event described in clause (i), who are Acquiring Persons, and
(iii) the transfer or other disposition described in clause (i) above was other
than pursuant to a transaction, or series of transactions, which directly or
indirectly involved the Company or any of its Subsidiaries, then the right of
redemption shall be reinstated and thereafter be subject to the provisions of
this Section 23. Notwithstanding anything contained in this Agreement to the
contrary, the Rights shall not be exercisable pursuant to Section 11(a)(ii)
prior to the expiration of the Company's right of redemption hereunder. Anything
to the contrary herein contained notwithstanding, no payment shall be made to
any holder of Rights being redeemed if such payment would be less than $1.00
unless such holder expressly requests such payment. The failure to make any such
payment of less than $1.00 in the absence of a request therefor shall not affect
the redemption of the Rights involved.
(b) Immediately upon the action of the Board of Directors of
the Company ordering the redemption of the Rights pursuant to subsection (a) of
this Section 23, 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. The Company shall
promptly give public notice of such redemption; provided, however, that the
failure to give such notice shall not affect the validity of such redemption.
Within 10 days after the action of the Board of Directors ordering the
redemption of the Rights pursuant to subsection (a) of this Section 23, the
Company shall give notice of such redemption to the holders of the then
outstanding Rights by mailing such notice to all such holders at their last
addresses as they appear upon the registry books of the Rights Agent or, prior
to the Distribution Date, on the registry books of the transfer agent for the
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 Company 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 or in Section 24, and other
than in connection with the purchase of Shares prior to the Distribution Date.
Section 24. Exchange. (a) The Board of Directors of
the Company may, at its option, at any time after any Person
becomes an Acquiring Person, exchange all or part of the then outstanding and
exercisable Rights (which shall not include Rights that have become void
pursuant to the provisions of Section 7(e) hereof) for Shares at an exchange
ratio of one 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 shall not be empowered to
effect such exchange at any time after any Person (other than the Company, any
Subsidiary of the Company, any employee benefit plan of the Company or any such
Subsidiary, or any entity holding Shares for or pursuant to the terms of any
such plan), together with all Affiliates and Associates of such person, becomes
the Beneficial Owner of 50% or more of the Shares then outstanding.
(b) Immediately upon the action of the Board of Directors of
the Company ordering the exchange of any Rights pursuant to subsection (a) of
this Section 24 and without any further action and without any notice, the right
to exercise such Rights shall terminate and the only right thereafter of a
holder of such Rights shall be to receive that number of Shares equal to the
number of such Rights held by such holder multiplied by the Exchange Ratio. The
Company shall promptly give public notice of such exchange; provided, however,
that the failure to give, or any defect in, such notice shall not affect the
validity of such exchange. The Company 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 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) hereof) held by each holder of Rights.
(c) In the event that there shall not be sufficient Shares
issued but not outstanding or authorized but unissued to permit any exchange of
Rights as contemplated in accordance with this Section 24, the Company shall
take all such action as may be necessary to authorize additional Shares for
issuance upon exchange of the Rights.
(d) The Company shall not be required to issue fractions of
Shares or to distribute certificates which evidence fractional Shares. In lieu
of such fractional Shares, the Company shall pay to the registered holders of
the Right Certificates, with regard to which such fractional Shares would
otherwise be issuable, an amount in cash equal to the same fraction of the
current market value of a whole Share. For the purposes of this subsection (e),
the current market value of a whole Share shall be the closing price of a Share
(as determined pursuant to the second sentence of Section 11(d) hereof) for the
Trading Day immediately prior to the date of exchange pursuant to this Section
24.
Section 25. Notice of Certain Events. In case the Company
shall propose (a) to pay any dividend payable in stock of any class to the
holders of the Shares or to make any other distribution to the holders of the
Shares (other than a regular quarterly cash dividend) or (b) to offer to the
holders of the Shares rights or warrants to subscribe for or to purchase any
additional Shares or shares of stock of any class or any other securities,
rights or options, or (c) to effect any reclassification of the Shares (other
than a reclassification involving only the subdivision of outstanding Shares),
or (d) to effect any consolidation or merger into or with, or to effect any sale
or other transfer (or to permit one or more of its Subsidiaries to effect any
sale or other transfer), in one or more transactions, of 50% or more of the
assets or earning power of the Company and its Subsidiaries (taken as a whole)
to, any other Person or (e) to effect the liquidation, dissolution or winding up
of the Company, then, in each such case, the Company shall give to each holder
of a Right Certificate and to the Rights Agent, in accordance with Section 26
hereof, a notice of such proposed action, which shall specify the record date
for the purposes of such stock dividend, 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 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 (a) or (b) above at least 20 days prior to the record date for
determining holders of the Shares for purposes of such action, and in the case
of any such other action, at least 20 days prior to the date of the taking of
such proposed action or the date of participation therein by the holders of the
Shares, whichever shall be the earlier.
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 Company shall be sufficiently given or made if sent by
first-class mail, postage prepaid, addressed (until another address is filed in
writing with the Rights Agent) as follows:
SIGCORP, Inc.
00 X.X. Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000-0000
Attention: Secretary
Subject to the provisions of Section 21 hereof, any notice or demand authorized
by this Agreement to be given or made by the Company or by the holder of any
Right Certificate to or on the Rights Agent shall be sufficiently given or made
if sent by first-class mail, postage prepaid, addressed (until another address
is filed in writing with the Company) as follows:
Continental Stock Transfer
& Trust Company
0 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Notices or demands authorized by this Agreement to be given or made by the
Company or the Rights Agent to the holder of any Right Certificate shall be
sufficiently given or made if sent by
first-class mail, postage prepaid, addressed to such holder at the address of
such holder as shown on the registry books of the Company.
Section 27. Supplements and Amendments. Prior to the earlier
of the Distribution Date or the Shares Acquisition Date, the Company may from
time to time supplement or amend this Agreement without the approval of any
holders of Right Certificates. From and after the earlier of the Distribution
Date or the Shares Acquisition Date, the Company may from time to time
supplement or amend this Agreement without the approval of any holders of the
Rights 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, or (iii) to change or supplement the provisions hereunder in
any manner which the Company may deem necessary or desirable, which shall be
consistent with, and for the purpose of fulfilling, the objectives of the Board
of Directors in adopting this Agreement, and which shall not adversely affect
the interests of the holders of the Rights (other than an Acquiring Person or an
Affiliate or Associate of an Acquiring Person). Upon the delivery of a
certificate from an appropriate officer of the Company which states that the
proposed supplement or amendment is in compliance with the terms of this Section
27, the Rights Agent shall execute such supplement or amendment unless the
Rights Agent shall have determined in good faith that such supplement or
amendment would adversely affect its interests under this Agreement. Prior to
the earlier of the Shares Acquisition Date or the Distribution Date,
the interests of the holders of Rights shall be deemed coincident
with the interests of the holders of Common Stock.
Section 28. Successors. All the covenants and
provisions of this Agreement by or for the benefit of the Company
or the Rights Agent shall bind and inure to the benefit of their
respective successors and assigns hereunder.
Section 29. Benefits of this Agreement. Nothing in this
Agreement shall be construed to give to any Person other than the Company, the
Rights Agent and the registered holders of the Right Certificates (and, prior to
the Distribution Date, the 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 Company, the Rights Agent and the registered holders of the Right
Certificates (and, prior to the Distribution Date, the Shares).
Section 30. Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated;
provided, however, that notwithstanding anything in this Agreement to the
contrary, if any such term, provision, covenant or restriction is held by such
court or authority to be invalid, void or unenforceable and the Board of
Directors of the Company determines in its good faith judgment that severing the
invalid language from this Agreement would adversely affect the purpose
or effect of this Agreement, the right of redemption set forth in Section 23
hereof shall be reinstated and shall not expire until the Close of Business
on the tenth day following the date of such determination by the Board of
Directors.
Section 31. Governing Law. This Agreement and each Right
Certificate issued hereunder shall be deemed to be a contract made under the law
of the State of Indiana 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, provided, however, that the rights and
obligations of the Rights Agent shall be governed by and construed in accordance
with the laws of the State of New York.
Section 32. 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 33. 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.
Section 34. Determinations and Actions by the Board of
Directors, Etc. For all purposes of this Agreement, any
calculation of the number of Shares outstanding at any particular
time, including for purposes of determining the particular
percentage of such outstanding Shares 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. The Board of
Directors of the Company shall have the exclusive power and authority to
administer this Agreement and to exercise all rights and powers specifically
granted to the Board or to the Company, or as may be necessary or advisable in
the administration of this Agreement, including, without limitation, the right
and power (a) to interpret the provisions of this Agreement, and (b) to make all
determinations deemed necessary or advisable for the administration of this
Agreement (including a determination to redeem or not to redeem the Rights or to
amend the Agreement). All such actions, calculations, interpretations and
determinations (including, for purposes of clause (ii) below, all omissions with
respect to the foregoing) which are done or made by the Board in good faith,
shall (i) be final, conclusive and binding on the Company, the Rights Agent, the
holders of the Rights and all other parties, and (ii) not subject the Board to
any liability to the holders of the Rights.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
[Seal]
Attest: SIGCORP, INC.
By /s/ X. X. Xxxxxx By /s/ X. X. Xxxxxxxx
___________________ ______________________
Name: X. X. Xxxxxx Name: X. X. Xxxxxxxx
Title: Secretary Title: President
[Seal]
Attest: CONTINENTAL STOCK TRANSFER
& TRUST COMPANY
By /s/ Xxxxxx Xxxxxxxx By /s/ Xxxxxx Xxxxxxx
___________________ ______________________
Name: Xxxxxx Xxxxxxxx Name: Xxxxxx Xxxxxxx
Title: Assistant Secretary Title: Executive Vice President
Exhibit A
[Form of Right Certificate]
SIGCORP, Inc.
Certificate No. R- Rights
NOT EXERCISABLE AFTER THE EARLIEST OF (1) DECEMBER
31, 2005 (2) REDEMPTION AND (3) EXCHANGE. THE
RIGHTS ARE SUBJECT TO REDEMPTION AT $.01 PER RIGHT
ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT
Right Certificate
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 December 31, 1995 (the "Rights Agreement"), between
SIGCORP, INC., an Indiana corporation (the "Company"), and CONTINENTAL STOCK
TRANSFER & TRUST COMPANY, a New York corporation (the "Rights Agent"), to
purchase from the Company at any time after the Distribution Date (as such term
is defined in the Rights Agreement) and prior to 5:00 P.M., New York City, time,
on December 31, 2005 at the principal corporate trust office of the Rights
Agent, or at the office of its successor as Rights Agent, 1/100th of one fully
paid nonassessable share of Common Stock, without par value (a "Share"), of the
Company, at a purchase price of $.65 per 1/100th of a Share (the "Purchase
Price"), upon presentation and surrender of this Right Certificate with the Form
of Election to Purchase duly executed, along with a signature guarantee and such
other and further documentation as the Rights Agent may reasonably request. The
number of Rights evidenced by this Right Certificate (and the number of
1/100th's of a Share which may be purchased upon exercise hereof) set forth
above, and the Purchase Price set forth above, are the number and Purchase Price
as of December 31, 1995, based on the Shares as constituted at such date. As
provided in the Rights Agreement, the Purchase Price and the number of 1/100th's
of a Share 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.
This Right Certificate is subject to all of the terms,
provisions and conditions of the Rights Agreement, which terms,
A-1
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 the rights, obligations, duties and
immunities hereunder of the Rights Agent, the Company and the holders of the
Right Certificates. Copies of the Rights Agreement are on file at the principal
executive offices of the Company and the above-mentioned office of the Rights
Agent.
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, Associate or Affiliate 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, Associate or Affiliate 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 event.
This Right Certificate, with or without other Right
Certificates, upon surrender at the principal corporate trust office of the
Rights Agent, may be exchanged for another Right Certificate or Right
Certificates of like tenor and date evidencing Rights entitling the holder to
purchase a like aggregate number of 1/100th's of a Share 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 required to be exchanged for Shares on a
one for one basis, as adjusted pursuant to the provisions of the Rights
Agreement, or may, but are not required to, be redeemed by the Company at a
redemption price of $.01 per Right. No payment of less than $1.00 shall be sent
upon redemption unless expressly requested by the holder hereof.
No fractional Shares will be issued upon the exercise of any
Right or Rights evidenced hereby (other than fractions which are 1/100th or
integral multiples of 1/100th of a Share, which may, at the election of the
Company, be evidenced by depositary receipts), but in lieu thereof a cash
payment will be made, as provided in the Rights Agreement.
No holder of this Right Certificate shall be entitled to vote
or receive dividends or be deemed for any purpose the holder of the Shares which
may at any time be issuable on the exercise hereof, or of any other securities
of the Company which may at any time be issuable on the exercise hereof, nor
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shall anything contained in the Rights Agreement or herein be construed to
confer upon the holder hereof, as such, any of the rights of a shareholder of
the Company of any right to vote for the election of directors or upon any
matter submitted to shareholders at any meeting thereof, or to give or withhold
consent to any corporate action, or to receive notice of meetings or other
actions affecting shareholders (except as provided in the Rights Agreement),
or to receive dividends or subscription rights, or otherwise, until the 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 an authorized signatory of
the Rights Agent.
WITNESS the facsimile signature of the proper officers of the
Company and its corporate seal.
Dated: ________________, ______.
ATTEST: SIGCORP, INC.
_________________________ By _________________________
Name:
Title:
Countersigned:
-----------------------------------
By ________________________________
Authorized Signatory
Date of countersignature:
A-3
[Form of Reverse Side of Right Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered
holder if such holder desires to transfer the Right Certificate.)
FOR VALUE RECEIVED _________________________________
hereby sells, assigns and transfers unto ______________________
(Please print name and address of transferee)
this Right Certificate, together with all right, title and interest therein, and
does hereby irrevocably constitute and appoint ______________________________
Attorney, to transfer the within Right Certificate on the books of the
within-named Company, with full power of substitution.
Dated: ______________________, _____
------------------------------
Signature
Signature Guaranteed:
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[Form of Reverse Side of Right Certificate -- continued]
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to
exercise the rights represented by
the Right Certificate.)
To SIGCORP, Inc.
The undersigned hereby irrevocably elects to exercise
______________________________ Rights represented by this Right Certificate to
purchase the Shares issuable upon the exercise of such Rights and requests that
certificates for such Shares be issued in the name of:
Please insert social security
or other taxpayer 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 taxpayer identifying number
-------------------------------------------------------------
(Please print name and address)
-------------------------------------------------------------
Dated: ________________, _______
-------------------------------
Signature
Signature Guaranteed:
A-5
Form of Reverse Side of Right Certificate -- continued
NOTICE
The signature in the foregoing Forms of Assignment and
Election 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.
A-6
CERTIFICATE
The undersigned hereby certifies by checking the appropriate
boxes that:
(1) the Rights evidenced by this Rights Certificate
[ ] are [ ] are not being exercised by or on behalf of a Person
who is or was an Acquiring Person (as such terms are defined
pursuant to the Rights Agreement);
(2) after due inquiry and to the best knowledge of the
undersigned, it [ ] did [ ] did not acquire the Rights evidenced by
this Rights Certificate from any Person who is, was or became an
Acquiring Person or an Affiliate or Associate of an Acquiring Person.
Dated: ,
Signature
Signature Guaranteed:
A-7
EXHIBIT B
SUMMARY OF RIGHTS TO PURCHASE SHARES
On December 19, 1995 the Board of Directors of SIGCORP, Inc.
(the "Company") authorized a Rights Agreement for shareholders under which one
share purchase right (a "Right") attaches to each outstanding share of Common
Stock, without par value (the "Shares"), of the Company. Each Right entitles the
registered holder to purchase from the Company 1/100th of one Share at a price
of $.65 per 1/100th of one Share (the "Purchase Price"), subject to adjustment.
The description and terms of the rights are set forth in the Rights Agreement
(the "Rights Agreement") between the Company and Continental Stock Transfer &
Trust Company, as rights agent (the "Rights Agent").
Until the earlier of (i) 10 days following a public
announcement that a person or group of affiliated or associated persons (an
"Acquiring Person") has acquired, or obtained the right to acquire, beneficial
ownership of 10% or more of the outstanding Shares (the date of such public
announcement being called the "Shares Acquisition Date") or (ii) 10 days
following the commencement or announcement of an intention to make a tender
offer or exchange offer by a person other than the Company if, upon consummation
of the offer, such person, together with persons affiliated or associated with
it, would become an Acquiring Person (the earlier of such days being called the
"Distribution Date"), the Rights will be evidenced, with respect to any of the
Share certificates, by such Share certificate. The Rights Agreement provides
that, until the Distribution Date, the Rights will be transferred with and only
with the Shares. Until the Distribution Date (or earlier redemption, termination
or expiration of the Rights), Share certificates will contain a notation
incorporating the Rights Agreement by reference. Until the Distribution Date (or
earlier redemption, termination or expiration of the Rights), the surrender for
transfer of any certificates for Shares, outstanding as of the Record Date, even
without such notation, will also constitute the transfer of the Rights
associated with the Shares represented by such certificate.
As soon as practicable following the Distribution Date,
separate certificates evidencing the Rights ("Right Certificates") will be
mailed to holders of record of the Shares as of the close of business on the
Distribution Date, and such separate Right Certificates alone will thereafter
evidence the Rights.
The Rights are not exercisable until the Distribution
Date. The Rights will expire December 31, 2005 unless the Rights
B-1
are earlier redeemed by the Company or exchanged for Shares, in
each case as described below.
The Purchase Price payable, and the number of 1/100th's of a
Share 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 Shares,
(ii) upon the grant to holders of the Shares of certain rights or warrants to
subscribe for or purchase Shares at a price, or securities convertible into
Shares with a conversion price, less than the then current market price of the
Shares or (iii) upon the distribution to holders of the Shares of evidences of
indebtedness or assets (excluding regular periodic cash dividends or dividends
payable in Shares) or of subscription rights or warrants (other than those
referred to above).
In the event that (i) the Company is involved in certain
mergers or other business combination transactions, (ii) any person becomes an
Acquiring Person or (iii) an Acquiring Person engages in one or more
self-dealing transactions with the Company, then proper provision will be made
so that each holder of a Right will thereafter have the right to receive, upon
the exercise thereof at 100 times the then current exercise price of the Right,
that number of shares of common stock of the Company or of the acquiring
company, as the case may be, which at the time of such transaction will have a
value double the amount of such purchase price.
Any Rights that are or were beneficially owned at any time on
or after the Distribution Date by an Acquiring Person shall become null and void
upon the occurrence of any event described in the preceding paragraph and no
holder of such Rights shall have any right with respect to such Rights from and
after the occurrence of any such event.
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. No fractional Shares will be issued (other than
fractions which are 1/100th or integral multiples of 1/100th of a Share, which
may, at the election of the Company, be evidenced by depositary receipts) and in
lieu thereof, an adjustment in cash will be made based on the market price of
the Shares on the last trading day prior to the date of exercise.
At any time prior to the 10th day following the Shares
Acquisition Date (unless extended by the Board of Directors), the Board of
Directors of the Company may redeem the Rights in whole, but not in part, at a
price of $.01 per Right (the "Redemption Price"). Payments of less than $1.00
will be sent upon redemption to holders of the Rights only if the particular
holder entitled to the payment specifically requests that the payment be sent.
Immediately upon the action of the Board of Directors
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ordering redemption of the Rights, the right to exercise the Rights will
terminate and the only right of the holders of Rights will be to receive the
Redemption Price.
After the Distribution Date and prior to the time an Acquiring
Person has acquired 50% or more of the then outstanding Shares, the Board of
Directors of the Company may require that some or all of the Rights be exchanged
on a one for one basis (subject to adjustment for stock splits, stock dividends
and other similar transactions) for Shares. To the extent that Rights are
required to be exchanged for Shares, the right to exercise those Rights will
terminate and the only right of the holder thereof will be to exchange those
Rights for Shares.
Any of the provisions of the Rights Agreement may be amended
by the Board of Directors of the Company prior to the Distribution Date. After
the Distribution Date, the provisions of the Rights Agreement may be amended by
the Board 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).
Until a Right is exercised, the holder thereof, as such, will
have no rights as a shareholder of the Company, including, without limitation,
the right to vote or to receive dividends.
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-B. A copy of the Rights Agreement is available free of charge from the
Company. This summary description of the Rights does not purport to be complete
and is qualified in its entirety by reference to the Rights Agreement.
B-3
SIGCORP, Inc.
and
Continental Stock Transfer & Trust Company,
Rights Agent
Rights Agreement
Dated as of December 31, 1995
TABLE OF CONTENTS
Page
Section 1. Certain Definitions......................................... 1
Section 2. Appointment of Rights Agent................................. 6
Section 3. Issue of Right Certificates................................. 6
Section 4. Form of Right Certificates.................................. 9
Section 5. Countersignature and Registration........................... 11
Section 6. Transfer, Split Up, Combination and Exchange of
Right Certificates; Mutilated, Destroyed, Lost
or Stolen Right Certificates........................ 12
Section 7. Exercise of Rights; Purchase Price; Expiration
Date of Rights...................................... 13
Section 8. Cancellation and Destruction of Right
Certificates........................................ 18
Section 9. Reservation and Availability of Shares...................... 18
Section 10. Record Date for Shares..................................... 21
Section 11. Adjustment of Purchase Price, Number of Shares
or Number of Rights................................ 21
Section 12. Certificate of Adjusted Purchase Price or
Number of Shares................................... 36
Section 13. Consolidation, Merger or Sale or Transfer of
Assets or Earning Power............................ 36
Section 14. Fractional Rights and Fractional Shares.................... 39
Section 15. Rights of Action........................................... 42
Section 16. Agreement of Right Holders................................. 43
Section 17. Right Certificate Holder Not Deemed a
Shareholder........................................ 44
Section 18. Concerning the Rights Agent................................ 45
Section 19. Merger or Consolidation or Change of Name of
Rights Agent....................................... 46
Section 20. Duties of Rights Agent..................................... 47
Section 21. Change of Rights Agent..................................... 52
Section 22. Issuance of New Right Certificates......................... 54
Section 23. Redemption................................................. 54
Section 24. Exchange................................................... 56
Section 25. Notice of Certain Events................................... 59
Section 26. Notices.................................................... 60
Section 27. Supplements and Amendments................................. 61
Section 28. Successors................................................. 62
Section 29. Benefits of this Agreement................................. 62
Section 30. Severability............................................... 62
Section 31. Governing Law.............................................. 63
Section 32. Counterparts................................................63
Section 33. Descriptive Headings........................................63
Section 34. Determinations and Actions by the Board of
Directors, Etc......................................63
EXHIBIT 21.1
SIGCORP, INC.
SUBSIDIARIES OF THE REGISTRANT
Southern Indiana Gas and Electric Company, Incorporated in Indiana
