COACHMEN INDUSTRIES, INC.
and
FIRST CHICAGO TRUST COMPANY OF NEW YORK,
Rights Agent
Rights Agreement
Dated as of January 5, 2000
to be effective
January 12, 2000
TABLE OF CONTENTS
PAGE
Section 1. Certain Definitions............................................................................1
Section 2. Appointment Of Rights Agent....................................................................4
Section 3. Issue Of Rights Certificates...................................................................5
Section 4. Form Of Rights Certificates....................................................................6
Section 5. Countersignature And Registration..............................................................6
Section 6. Transfer, Split Up, Combination And Exchange Of Rights Certificates; Mutilated,
Destroyed, Lost Or Stolen Rights Certificates..................................................6
Section 7. Exercise Of Rights; Purchase Price; Expiration Date Of Rights..................................7
Section 8. Cancellation And Destruction Of Rights Certificates............................................8
Section 9. Reservation And Availability Of Common Shares..................................................9
Section 10. Common Share Record Date.......................................................................9
Section 11. The Flip-In...................................................................................10
Section 12. The Flip-Over.................................................................................10
Section 13. Adjustment Of Purchase Price, Number And Kind Of Shares Or Number Of Rights...................12
Section 14. Fractional Rights And Fractional Shares.......................................................16
Section 15. Rights Of Action..............................................................................16
Section 16. Agreement Of Rights Holders...................................................................16
Section 17. Rights Certificate Holder Not Deemed A Shareholder............................................17
Section 18. Concerning The Rights Agent...................................................................17
Section 19. Merger Or Consolidation Or Change Of Name Of Rights Agent.....................................18
Section 20. Duties Of Rights Agent........................................................................18
Section 21. Change Of Rights Agent........................................................................20
Section 22. Issuance Of New Rights Certificates...........................................................21
Section 23. Redemption And Termination....................................................................21
Section 24. Exchange......................................................................................22
Section 25. Notice Of Certain Events......................................................................22
Section 26. Notices.......................................................................................23
Section 27. Supplements And Amendments....................................................................23
Section 28. Successors....................................................................................24
Section 29. Benefits Of This Agreement....................................................................24
Section 30. Severability..................................................................................24
TABLE OF CONTENTS
Section 31. Governing Law.................................................................................24
Section 32. Counterparts..................................................................................24
Section 33. Descriptive Headings..........................................................................24
Exhibit A -- Form of Rights Certificate
Exhibit B -- Summary of Rights to Purchase Common Shares
RIGHTS AGREEMENT
----------------
Rights Agreement, dated as of January 5, 2000 to be effective as
of January 12, 2000 (the "Agreement"), between COACHMEN INDUSTRIES, INC., an
Indiana corporation (the "Company"), and First Chicago Trust Company of New
York, a New York corporation (the "Rights Agent").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, on October 21, 1999, the Board of Directors of the
Company authorized and declared a dividend distribution of one Right (as
hereinafter defined) for each outstanding common share, without par value, of
the Company (the "Common Shares") outstanding as of the Close of Business as of
the Record Date (as hereinafter defined);
WHEREAS, on January 4, 2000, the Board of Directors resolved
to designate January 12, 2000 (the "Record Date") as the Record Date for
distribution of the Rights, and presently contemplates issuing one Right for
each Common Share of the Company issued between the Record Date and the
Separation Date (as hereinafter defined) and one Right for each Common Share of
the Company issued upon exercise of stock options granted prior to the
Separation Date or upon the exercise, conversion or exchange of securities
issued by the Company prior to the Separation Date, each Right representing the
right to purchase one Common Share upon the terms and subject to the conditions
hereinafter set forth (the "Rights");
NOW, THEREFORE, 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 such term
is hereinafter defined) who or which, together with all Affiliates (as
hereinafter defined) and Associates (as hereinafter defined) of such
Person, shall be the Beneficial Owner (as hereinafter defined) of 20% or
more of the Common Shares then outstanding and shall include all Affiliates
and Associates of such Person, 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; (iv) any
entity organized, appointed or established by the Company or by any
Subsidiary of the Company for or pursuant to the terms of any plan; or (v)
any Person who becomes a beneficial owner of 20% or more of the Common
Shares then outstanding solely because (a) of a change in the aggregate
number of Common Shares outstanding since the last date on which the Person
acquired beneficial ownership of any Common Shares, or (b) (x) the Person
acquired beneficial ownership of the Common Shares based on calculations
correctly performed and using the Company's most current reports publicly
on file with the U.S. Securities and Exchange Commission which indicated
that acquisition of the Common Shares would not cause the Person to become
the Beneficial Owner of 20% or more of the Common Shares then outstanding,
and (y) the Person had no
notice or reason to believe that acquisition of the Common Shares would result
in the Person becoming the Beneficial Owner of 20% or more of the Common Shares
then outstanding, and (z) the Person sells a number of the Common Shares that
reduces the Person's beneficial ownership of the Common Shares to less than 20%
of the Common Shares outstanding within 10 Trading Days (as hereinafter defined)
after receiving notice from the Company.
(b) "Affiliate" shall mean, with respect to a specified
Person, a Person that directly, or indirectly through one or more
intermediaries, controls or is controlled by, or is under common control with,
the Person specified.
(c) "Associate" shall mean, with respect to a specified
Person, (i) any corporation or organization (other than the Company or a
Subsidiary of the Company) of which such Person is an officer or partner or is,
directly or indirectly, the beneficial owner of 10% or more of any class of
equity security as defined in Rule 3all-1 of the General Rules and Regulations
under the Exchange Act, (ii) any trust or other estate in which such Person has
a substantial beneficial interest or as to which such Person serves as trustee
or in a similar fiduciary capacity, and (iii) any relative or spouse of such
Person, or any relative of such spouse, who has the same home as such Person, or
who is an officer or director of any corporation controlling or controlled by
such Person.
(d) "Beneficial Ownership" or "beneficial ownership" shall be
determined pursuant to Rule 13d-3 of the General Rules and Regulations under the
Securities Exchange Act of 1934 (or any successor rule or statutory provision)
or, if Rule 13d-3 shall be rescinded and there shall be no successor rule or
statutory provision thereto, pursuant to Rule 13d-3 as in effect on the date
hereof; provided, however, that a Person shall, in any event, also be deemed to
be the "Beneficial Owner" of and to "beneficially own" any securities:
(i) which such Person or any Affiliate or Associate thereof
beneficially owns, directly or indirectly;
(ii) which such Person or any Affiliate or Associate
thereof, directly or indirectly, has the right to acquire (whether such
right is exercisable immediately or only after the passage of time)
pursuant to any agreement, arrangement or understanding (whether or not in
writing) or upon the exercise of conversion rights, exchange rights,
rights, warrants or options, or otherwise; provided, however, that a Person
shall not be deemed the "Beneficial Owner" of, or to "beneficially own,"
(A) securities tendered pursuant to a tender or exchange offer made by such
Person or any Affiliate or Associate thereof until the tendered securities
are accepted for purchase or exchange, or (B) securities issuable upon
exercise of Rights;
(iii) which such Person or any Affiliate or Associate
thereof, directly or indirectly, has sole or shared voting or investment
power with respect thereto pursuant to any agreement, arrangement or
understanding (whether or not in writing); provided, however, that a Person
shall not be deemed the "Beneficial Owner" of, or to "beneficially own,"
any security under this subparagraph (iii) as a result of an agreement,
arrangement or understanding to vote such security if such agreement,
arrangement or understanding
(A) arises solely from a revocable proxy given in response to a public
proxy or consent solicitation made pursuant to, and in accordance with, the
applicable provisions of the General Rules and Regulations under the
Exchange Act, and (B) is not also then reportable by such Person on
Schedule 13D under the Exchange Act; or
(iv) which are beneficially owned, directly or indirectly,
by any other Person or any Affiliate or Associate thereof with which such
Person or any Affiliate or Associate thereof has any agreement, arrangement
or understanding (whether or not in writing), for the purpose of acquiring,
holding, voting (except pursuant to a revocable proxy as described in
subparagraph (iii) of this paragraph (d)) or disposing of any voting
securities of the Company.
(e) "Business Day" shall mean any day other than a Saturday,
Sunday or a day on which banking institutions in the State of New York are
authorized or obligated by law or executive order to close.
(f) "Close of Business" on any given date shall mean 5:00
P.M., New York time, on such date; provided, however, that if such date is not a
Business Day it shall mean 5:00 P.M., New York time, on the next succeeding
Business Day.
(g) "Closing Price" of any security on any given day shall be
the last sale price, regular way, of such security or, in case no such sale
takes place on such day, the average of the closing bid and asked prices,
regular way, on the principal trading market on which such security is then
traded.
(h) "Common Shares" shall mean the common shares, without par
value, of the Company, and "common shares" or "common stock' when used with
reference to any Person other than the Company shall mean the capital stock with
the greatest voting power, or the equity securities or other equity interest
having power to control or direct the management, of such Person.
(i) "Current Market Price" of any security on any given day
shall be deemed to be the average of the daily Closing Prices per share or other
trading unit of such security for 10 consecutive Trading Days (as hereinafter
defined) immediately preceding such date; provided, however, that with respect
to shares of capital stock, in the event that the current market price per share
of the capital stock is determined during a period following the announcement of
(i) a dividend or distribution on the capital stock payable in shares of such
capital stock or securities convertible into shares of such capital stock (other
than the Rights), or (ii) any subdivision, combination or reclassification of
the capital stock, and prior to the expiration of the requisite 10 Trading Day
period, as set forth above, after the ex-dividend date for such dividend or
distribution, or the record date for such subdivision, combination or
reclassification, then and in each such case, the "Current Market Price" shall
be properly adjusted to take into account ex-dividend trading; and provided
further that if the security is not publicly held or not so listed or traded,
Current Market Price per share or other trading unit shall mean the fair value
per share or other trading unit 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 and shall be conclusive for all
purposes.
(j) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended and in effect on the date of this Agreement, and all references
to any rule or regulation of the General Rules and Regulations under the
Exchange Act shall be, except as otherwise specifically provided herein, to such
rule or regulation as was in effect on the date of this Agreement.
(k) "Flip-In Event" shall mean the event described in Section
11(a) hereof.
(l) "Flip-Over Event' shall mean any of the events described
in Section 12(a) hereof.
(m) "Person" shall mean any individual, firm, corporation,
partnership or other entity, and shall include any successor (by merger or
otherwise) of such entity.
(n) "Separation Date" shall mean the earlier of (i) the tenth
Business Day after the Share Acquisition Date (as hereinafter defined) or (ii)
the tenth Business Day 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, any employee benefit
plan of the Company or of any Subsidiary of the Company or any entity organized,
appointed or established by the Company or by any Subsidiary of the Company for
or pursuant to the terms of any such plan), if upon consummation thereof, such
Person would be the Beneficial Owner of 20% or more of the Common Shares then
outstanding (including any such date which is after the date of this Agreement
and prior to the issuance of the Rights).
(o) "Share Acquisition Date" shall mean the first date of
public announcement by the Company or an Acquiring Person that an Acquiring
Person has become such.
(p) "Subsidiary" shall mean, with reference to any Person, any
corporation of which a majority of any class of equity security is Beneficially
Owned, directly or indirectly, by such Person.
(q) "Trading Day" with respect to any security 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.
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 final and binding on the
Rights Agent.
Section 2. Appointment Of Rights Agent. The Company hereby
appoints the Rights Agent to act as agent for the Company and the holders of the
Rights (who, in accordance with Section 3 hereof, shall prior to the Separation
Date also be the holders of the Common
Shares) in accordance with the terms and conditions hereof, and the Rights Agent
hereby accepts such appointment. The Company may from time to time appoint such
Co-Rights Agents as it may deem necessary or desirable.
Section 3. Issue Of Rights Certificates. (a) Until the
Separation Date, (x) the Rights will be evidenced by the certificates for the
Common Shares registered in the names of the holders of the Common Shares (which
certificates for Common Shares shall be deemed also to be certificates for
Rights) and not by separate certificates, and (y) the Rights will be
transferable only in connection with the transfer of the underlying Common
Shares (including a transfer to the Company). As soon as practicable after the
Separation Date, the Rights Agent will send by first-class, insured, postage
prepaid mail, to each record holder of the Common Shares as of the Close of
Business on the Separation Date, at the address of such holder shown on the
records of the Company, a Rights certificate, in substantially the form of
Exhibit A hereto (the "Rights Certificates"), evidencing one Right for each
Common Share so held. As of and after the Separation Date, the Rights will be
evidenced solely by such Rights Certificates.
(b) As promptly as practicable following the Record Date,
the Company will send a copy of a Summary of Rights, in substantially the form
attached hereto as Exhibit B (the "Summary of Rights"), by first-class, postage
prepaid mail to each record holder of Common Shares as of the Close of Business
on the Record Date, at the address of such holder shown on the records of the
Company.
(c) Certificates for the Common Shares issued (including
reissuance of treasury shares) after the Record Date but prior to the earlier of
the Separation Date or the Expiration Date (as hereinafter defined) shall be
deemed also to be certificates for Rights (and Rights shall be issued in respect
thereof), and shall bear the following legend:
"This certificate also evidences and entitles the holder
hereof to certain Rights as set forth in the Rights Agreement
between Coachmen Industries, Inc. (the "Company") and First
Chicago Trust Company of New York, dated as of January 5, 2000
and effective January 12, 2000 (the "Rights Agreement"), the
terms of which are hereby incorporated herein by reference and a
copy of which is on file at the principal offices of the Company.
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. The Company
will mail to the holder of this certificate a copy of the Rights
Agreement without charge promptly after receipt of a written
request therefor. Under certain circumstances, Rights
beneficially owned by Acquiring Persons or any Affiliates or
Associates thereof (as defined in the Rights Agreement) and any
subsequent holder of such Rights may become null and void."
(d) Subject to Section 13(h), after the Separation Date
but prior to the Expiration Date, Rights shall only be issued in connection with
the issuance of Common Shares upon the exercise of stock options granted prior
to the Separation Date or upon the exercise, conversion or
exchange of securities issued by the Company prior to the Separation Date;
provided, however, that if, pursuant to the terms of any option, or
exercise, conversion or exchange of securities, the number of shares
issuable thereunder is adjusted after the Separation Date, the number of
Rights issuable upon issuance of the shares shall be equal only to the
number of shares which would have been issuable prior to the adjustment.
Section 4. Form Of Rights Certificates. The Rights
Certificates (and the forms of election to purchase and of assignment and the
related certificates to be printed on the reverse side thereof) shall be
substantially in the form of Exhibit A hereto and the Rights Certificates may
have such marks of identification or designation and such legends, summaries or
endorsements printed thereon as the Company may deem appropriate and as are not
inconsistent with the provisions of this Agreement, or as may be required to
comply with any applicable law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on which the Rights
may from time to time be listed or to conform to usage. Subject to the
provisions of Section 11, Section 12 and Section 22 hereof, the Rights
Certificates, whenever distributed, shall be dated as of the Record Date and on
their face shall entitle the holders thereof to purchase such number of Common
Shares as shall be set forth therein at the price per share set forth therein
(the "Purchase Price"), but the number of such shares and the Purchase Price
shall be subject to adjustment as provided herein.
Section 5. Countersignature And Registration. (a) The Rights
Certificates shall be executed on behalf of the Company by its Chairman of the
Board, President, Chief Executive Officer or any Vice President, either manually
or by facsimile signature and shall have affixed thereto the Company's seal or a
facsimile thereof which shall be attested by the Secretary or an Assistant
Secretary of the Company, either manually or by facsimile signature. The Rights
Certificates shall be manually countersigned by the Rights Agent and shall not
be valid for any purpose unless so countersigned. In case any officer of the
Company who shall have signed any of the Rights Certificates shall cease to be
such officer of the Company before countersignature by the Rights Agent and
issuance and delivery by the Company, such Rights Certificates, nevertheless,
may be countersigned by the Rights Agent, and issued and delivered by the
Company with the same force and effect as though the person who signed such
Rights Certificates had not ceased to be such officer of the Company and any
Rights Certificates may be signed on behalf of the Company by any person who, at
the actual date of the execution of such Rights Certificate, shall be a proper
officer of the Company to sign such Rights Certificate, although at the date of
the execution of this Rights Agreement any such person was not such an officer.
(b) Following the Separation Date, the Rights Agent will
keep or cause to be kept, at its office designated for such purpose, books for
registration and transfer of the Rights Certificates issued hereunder. Such
books shall show the names and addresses of the respective holders of the Rights
Certificates, the number of Rights evidenced on its face by each of the Rights
Certificates and the date of each of the Rights Certificates.
Section 6. Transfer, Split Up, Combination And Exchange Of
Rights Certificates; Mutilated, Destroyed, Lost Or Stolen Rights Certificates.
(a) Subject to the provisions of Sections 14 and 24 hereof, at any time after
the Close of Business on the Separation Date, and at or prior to the Close of
Business on the Expiration Date, any Rights Certificate or Certificates may be
transferred, split up, combined or exchanged for another Rights
Certificate or Certificates, entitling the registered holder to purchase a like
number of Common Shares as the Rights Certificate or Certificates surrendered
then entitled such holder (or former holder in the case of a transfer) to
purchase. Any registered holder desiring to transfer, split up, combine or
exchange any Rights Certificate or Certificates shall make such request in
writing delivered to the Rights Agent, and shall surrender the Rights
Certificate or Certificates to be transferred, split up, combined or exchanged,
with the Form of Assignment and Certificate duly executed, at the office of the
Rights Agent designated for such purpose. Thereupon, subject to Sections 4(b),
7(e) and 14 hereof, the Rights Agent shall countersign and deliver to the Person
entitled thereto a Rights Certificate or Rights Certificates, as the case may
be, as so requested. The Company may require payment of a sum sufficient to
cover any tax or governmental charge that may be imposed in connection with any
transfer, split up, combination or exchange of Rights Certificates.
(b) Upon receipt by the Company and the Rights Agent of
evidence reasonably satisfactory to them of the loss, theft, destruction or
mutilation of a Rights Certificate, and, in case of loss, theft or destruction,
of indemnity or security reasonably satisfactory to them, and reimbursement to
the Company and the Rights Agent of all reasonable expenses incidental thereto,
and upon surrender to the Rights Agent and cancellation of the Rights
Certificate if mutilated, the Company will execute and deliver a new Rights
Certificate of like tenor to the Rights Agent for countersignature and delivery
to the registered owner in lieu of the Rights Certificate so lost, stolen,
destroyed or mutilated.
Section 7. Exercise Of Rights; Purchase Price; Expiration Date
Of Rights. (a) Subject to Sections 7(e) and 23(a) hereof, the registered holder
of any Rights Certificate may exercise the Rights evidenced thereby in whole or
in part at any time after the Separation Date upon surrender of the Rights
Certificate, with the form of election to purchase on the reverse side thereof
including the certificate contained therein duly executed, to the Rights Agent
at the principal office of the Rights Agent, together with payment of the
Purchase Price for each Common Share as to which the Rights are exercised prior
to the earlier of (i) the Close of Business on February 1, 2010 (the "Final
Expiration Date"), (ii) the time at which the Rights are redeemed as provided in
Section 23 hereof or (iii) the time at which such Rights are exchanged as
provided in Section 24 hereof (such earlier time being herein referred to as the
"Expiration Date").
(b) The purchase price for each Common Share pursuant to
the exercise of a Right shall initially be $75.00 (the "Purchase Price"), and
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 Rights Certificate representing
exercisable Rights, with the form of election to purchase including the
certificate contained therein duly executed, accompanied by payment of the
Purchase Price for the shares to be purchased and an amount equal to any
applicable transfer tax in cash, or by certified check or bank draft payable to
the order of the Company, the Rights Agent shall thereupon promptly (i)
requisition from any transfer agent of the Common Shares (or make available, if
the Rights Agent is the transfer agent) certificates for the number of Common
Shares to be purchased and the Company hereby
irrevocably authorizes its transfer agent to comply with all such requests, (ii)
requisition from the Company the amount of cash, if any, to be paid in lieu of
fractional shares in accordance with Section 14, (iii) after receipt of such
certificates, cause the same to be delivered to or upon the order of the
registered holder of such Rights Certificate, registered in such name or names
as may be designated by such holder, and (iv) after receipt deliver such cash,
if any, to or upon the order of the registered holder of such Rights
Certificate.
(d) In case the registered holder Certificate shall
exercise less than all the thereby, a new Rights Certificate evidencing to the
Rights remaining unexercised shall be Rights Agent and delivered to the
registered Rights Certificate or to his duly authorized to the provisions of
Section 14 hereof.
(e) Notwithstanding anything in this Agreement to the
contrary, from and after the time when a Person becomes an Acquiring Person, any
Rights that are or were beneficially owned by the Acquiring Person or any
Affiliate or Associate thereof shall immediately become permanently null and
void without any further action, and any holder of such Rights shall thereupon
have no right to exercise such Rights under any. provision of this Agreement or
otherwise. No Right Certificate shall be issued pursuant to Section 3 that
represents Rights beneficially owned by an Acquiring Person whose Rights would
be void pursuant to the preceding sentence or any Associate or Affiliate
thereof; no Right Certificate shall be issued at any time upon the transfer of
any Rights to an Acquiring Person whose Rights would be void pursuant to the
preceding sentence or any Associate or Affiliate thereof or to any nominee of
such Acquiring Person, Associate or Affiliate; and any Right Certificate
delivered to the Rights Agent for transfer to an Acquiring Person or an
Associate or Affiliate thereof whose Rights would be void pursuant to the
preceding sentence shall be cancelled. 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 Rights
Certificates or other Person as a result of its failure to make any
determinations with respect to an Acquiring Person or its Affiliates, Associates
or transferees hereunder.
(f) Notwithstanding anything in this Agreement to the
contrary, neither the Rights Agent nor the Company shall be obligated to
undertake any action with respect to a registered holder of any Rights
Certificate upon the occurrence of any purported exercise thereof 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 Rights
Certificate surrendered for such exercise and (ii) provided such additional
evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or
Affiliates and Associates thereof as the Company shall reasonably request.
Section 8. Cancellation And Destruction Of Rights
Certificates. All Rights Certificates surrendered for the purpose of exercise,
transfer, split-up, combination or exchange shall, if surrendered to the Company
or any of its agents, be delivered to the Rights Agent for cancellation or in
cancelled form, or, if surrendered to the Rights Agent, shall be cancelled by
it, and no Rights 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 Rights
Certificates purchased or acquired by the Company otherwise than upon the
exercise thereof. The Rights Agent shall deliver all cancelled Rights
Certificates to the Company, or shall, at the written request of the Company,
destroy such cancelled Rights Certificates, and in such case shall deliver a
certificate of destruction thereof to the Company.
Section 9. Reservation And Availability Of Common Shares. (a)
The Company covenants and agrees that it will cause to be reserved and kept
available out of its authorized and unissued Common Shares or any authorized and
issued Common Shares held in its treasury, the number of Common Shares that will
be sufficient to permit the exercise in full pursuant to Section 7 of all
outstanding Rights.
(b) So long as the Common Shares issuable upon the
exercise of the Rights may be listed on any national securities exchange, the
Company shall use its best efforts to cause, from and after such time as the
Rights become exercisable, all shares reserved for such issuance to be listed on
such exchange upon official notice of issuance upon such exercise.
(c) The Company shall use its best efforts to (i) file,
as soon as practicable following the earlier of the Separation Date or as soon
as is required by law, a registration statement under the Securities Act of 1933
(the "Act"), with respect to the Common Shares purchasable upon exercise of the
Rights on an appropriate form, (ii) cause such registration statement to become
effective as soon as practicable after the filing, and (iii) cause such
registration statement to remain effective (with a prospectus at all times
meeting the requirements of the Act) until the Expiration Date. The Company will
also take all action necessary to ensure compliance with the securities laws of
the various states in connection with the exercisability of the Rights. The
Company may temporarily suspend, for a period of time not to exceed 90 calendar
days after the date set forth in clause (i) of the first sentence of this
Section 9(c), the exercisability of the Rights in order to prepare and file such
registration statements. Upon any suspension, the Company shall issue a public
announcement stating that the exercisability of the Rights has been temporarily
suspended, as well as a public announcement at such time as the suspension is no
longer in effect. Notwithstanding any provision of this Agreement to the
contrary, the Rights shall not be exercisable in any jurisdiction unless the
requisite qualification in that jurisdiction shall have been obtained.
(d) The Company covenants and agrees that it will take
all such action as may be necessary to ensure that all Common 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.
(e) The Company further covenants and agrees that it will
pay when due and payable any and all federal and state transfer taxes and
charges which may be payable in respect of the issuance or delivery of the
Rights Certificates and of any certificates for Common 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 Rights
Certificates to a person other than, or the issuance or delivery of the Common
Shares in respect of a name other than that of the registered holder of the
Rights Certificates evidencing Rights surrendered for exercise or to issue or
deliver any certificates for Common Shares in a name other than that of, the
registered
holder upon the exercise of any Rights until such tax shall have been paid (any
such tax being payable by the holder of such Rights Certificate at the time of
surrender) or until it has been established to the Company's satisfaction that
no such tax is due.
Section 10. Common Share Record Date. Each person in whose
name any certificate for Common Shares is issued upon the exercise of Rights
shall for all purposes be deemed to have become the holder of record of the
Common Shares represented thereby on, and such certificate shall be dated, the
date upon which the Rights Certificate evidencing such Rights was duly
surrendered and payment of the Purchase Price (and all applicable transfer
taxes) was made; provided, however, that if the date of such surrender and
payment is a date upon which the Common Share transfer books of the Company are
closed, such person shall be deemed to have become the record holder of such
shares on, and such certificate shall be dated, the next succeeding Business Day
on which the Common Share transfer books of the Company are open.
Section 11. The Flip-In. (a) In the event that any Person
shall become an Acquiring Person, each holder of a Right, except as provided
below and in Section 7(e) hereof, shall thereafter have a right to receive, upon
exercise thereof at the then current Purchase Price multiplied by the number of
Common Shares for which a Right is then exercisable, in accordance with the
terms of this Agreement, such number of Common Shares of the Company as shall
equal the result obtained by (x) multiplying the then current Purchase Price by
the then number of Common Shares for which a Right is then exercisable and
dividing that product by (y) 50% of the Current Market Price per Common Share on
the date on which such Person became an Acquiring Person (such number of shares
being herein referred to as the "Adjustment Shares").
(b) In the event that there shall not be sufficient
issued but not outstanding and authorized but unissued Common Shares to permit
the exercise in full of the Rights in accordance with the foregoing subparagraph
(a), the Company shall take all such action as may be necessary to authorize
additional Common Shares for issuance upon exercise of the Rights; provided,
however, if the Company is unable to cause the authorization of a sufficient
number of additional Common Shares, then, in the event the Rights become so
exercisable, the Company, with respect to each Rights and to the extent
necessary and permitted by applicable law and any agreements or instruments in
effect on the date hereof to which it is a party shall, upon the exercise of
such Rights, (i) pay an amount in cash equal to the excess of (A) the product of
(1) the number of Adjustment Shares, multiplied by (2) the Current Market Price
of the Common Shares (such product being herein referred to as the "Current
Value"), over (B) the Purchase Price, in lieu of issuing Common Shares and
requiring payment therefor, or (ii) issue debt or equity securities, or a
combination thereof, 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 require the
payment of the Purchase Price, or (iii) deliver any combination of cash,
property, Common Shares and/or other securities having the requisite value, and
require payment of all or any requisite portion of the Purchase Price. To the
extent that the Company determines that some action need be taken pursuant to
clauses (i), (ii) or (iii) of the proviso of this Section 11(b), the majority of
the Board of Directors may suspend the exercisability of the Rights for a period
of up to 45 calendar days in order to decide the appropriate form of
distribution to be made pursuant to the above proviso and to
determine the value thereof. In the event of any suspension, the Company shall
issue a public announcement stating that the exercisability of the Rights has
been temporarily suspended, as well as a public announcement at the time the
suspension is no longer in effect.
Section 12. The Flip-Over. (a) In the event that, directly or
indirectly, (x) the Company shall consolidate with, or merge with and into, any
other Person, (y) any Person shall merge with and into the Company and the
Company shall be the continuing or surviving corporation of such merger and, in
connection with such merger, all or part of the Common 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 (z) the Company shall sell or
otherwise transfer (or one or more of its Subsidiaries shall sell or otherwise
transfer), in one or more transactions, assets or earning power aggregating more
than 50% of the assets or earning power of the Company and its Subsidiaries
(taken as a whole) to any other Person or Persons, then, and in each such case,
(i) each holder of a Right, except as provided in Section 7(e) hereof, shall
thereafter have the right to receive, upon the exercise thereof at the then
current Purchase Price in accordance with the terms of this Agreement, such
number of shares of freely tradeable common shares of the Principal Party (as
hereinafter defined), free and clear of any lien, encumbrance or other adverse
claim, as shall be equal to the result obtained by (1) multiplying the then
current Purchase Price by the number of Common Shares for which a Right is then
exercisable (or the number of Common Shares for which a Right was exercisable
immediately prior to the occurrence of the Flip-In Event if a Flip-In Event has
previously occurred) and dividing that product by (2) 50% of the Current Market
Price per share of the common shares of such Principal Party on the date of
consummation of the Flip-Over Event; (ii) such Principal Party shall thereafter
be liable for, and shall assume, by virtue of the Flip-Over Event, all the
obligations and duties of the Company pursuant to this Agreement; (iii) the term
"Company" shall thereafter be deemed to refer to such Principal Party, it being
specifically intended that the provisions of Section 13 hereof shall apply to
such Principal Party; and (iv) such Principal Party shall take such steps
(including, but not limited to, the reservation of a sufficient number of its
common shares) 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 common shares thereafter deliverable upon the
exercise of the Rights.
(b) "Principal Party" shall mean:
(i) in the case of any transaction described in (x) or
(y) of the first sentence of this Section 12, the Person that is
the issuer of any securities into which Common Shares of the
Company are converted in such merger or consolidation, and if no
securities are so issued, the Person that is the other party to
the merger or consolidation; and
(ii) in the case of any transaction described in (z) of
the first sentence in this Section 12, the Person that is the
party receiving the greatest portion of the assets or earning
power transferred pursuant to such transaction or transactions;
provided, however, that in any such case, (1) if the common
shares of such Principal Party is not at such time and has not
been continuously over the preceding 12-month period registered
under Section 12 of the Securities
Exchange Act of 1934, as then in effect, and such Person is a direct
or indirect Subsidiary of another Person the common shares of which is
and has been so registered, "Principal Party" shall refer to such
other Person; and (2) in case such Person is a Subsidiary, directly or
indirectly, of more than one Person, the common shares of two or more
of which are and have been so registered, "Principal Party" shall
refer to whichever of such Persons is the issuer of the common shares
having the greatest aggregate market value.
(c) The Company shall not consummate any Flip-over Event
unless prior thereto the Company and each Principal Party and each other Person
who may become a Principal Party shall have executed and delivered to the Rights
Agent a supplemental agreement providing for the terms set forth in paragraphs
(a) and (b) of this Section 12. The provisions of this Section 12 shall
similarly apply to successive Flip-Over Events. In the event that a Flip-Over
Event shall occur at any time after the occurrence of a Flip-In Event, the
Rights which have not theretofore been exercised shall thereafter become
exercisable in the manner described in Section 12(a).
Section 13. Adjustment Of Purchase Price, Number And Kind Of
Shares Or Number Of Rights. The Purchase Price, the number and kind of shares
covered by each Right and the number of Rights outstanding are subject to
adjustment from time to time as provided in this Section 13.
(a) In the event the Company shall at any time after the
date of this Agreement (A) declare a dividend on the Common Shares payable
in Common Shares, (B) subdivide the outstanding Common Shares, (C) combine
the outstanding Common Shares into a smaller number of shares, or (D) issue
any shares of its capital stock in a reclassification of the Common Shares
(including any such reclassification in connection with a consolidation or
merger in which the Company is the continuing or surviving corporation),
except as otherwise provided in this Section 13(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 Rights exercised after
such time shall be entitled to receive the aggregate number and kind of
shares of capital stock which, if such Rights had been exercised
immediately prior to such date and at a time when the Common Share transfer
books of the Company were open, that the holder would have owned upon such
exercise and been entitled to receive by virtue of such dividend,
subdivision, combination or reclassification. If an event occurs which
would require an adjustment under both Section 11(a) hereof and this
Section 13(a), the adjustment provided for in this Section 13(a) shall be
in addition to, and shall be made prior to any adjustment required pursuant
to Section 11(a).
(b) In case the Company shall fix a record date for the
issuance of rights, options or warrants to all holders of Common Shares
entitling them to subscribe for or purchase (for a period expiring within
45 calendar days after such record date) Common Shares or securities
convertible into Common Shares at a price per Common Share (or having a
conversion price per share, if a security convertible into Common Shares)
less than
the Current Market Price per Common Share on such record date, the Purchase
Price to be in effect after such record date shall be determined by
multiplying the Purchase Price in effect immediately prior to such record
date by a fraction, the numerator of which shall be the number of Common
Shares outstanding on such record date, plus the number of Common Shares
which the aggregate offering price of the total number of Common Shares 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 Common
Shares outstanding on such record date, plus the number of additional
Common 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 and shall be binding on the Rights Agent. Common 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 a
distribution to all holders of Common Shares (including any such
distribution made in connection with a consolidation or merger in which the
Company is the continuing corporation) of evidences of indebtedness, cash
(other than a regular quarterly cash dividend out of the earnings or
retained earnings of the Company), assets or subscription rights or
warrants (excluding those referred to in Section 13(b)), the Purchase Price
to be in effect after such record date shall be determined by multiplying
the Purchase Price in effect immediately prior to such record date by a
fraction, the numerator of which shall be the Current Market Price per
Common Share 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 cash, assets or evidences of indebtedness so to be
distributed or of such subscription rights or warrants applicable to one
Common Share and the denominator of which shall be such Current Market
Price per Common Share. 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 be in effect if such record date had not
been fixed.
(d) 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
13(d) are not required to be made shall be carried forward and taken into
account in any subsequent adjustment. All calculations under this Section
13 shall be made to the nearest cent or to the nearest one ten-thousandth
of a share as the case may be. Notwithstanding the first sentence of this
Section 13(d), any adjustment required by this Section 13 shall be made no
later than the earlier of (i) three years from the date of the transaction
which mandates such adjustment or (ii) the Expiration Date.
(e) If as a result of an adjustment made pursuant to
Section 11(a), the holder of any Rights thereafter exercised shall become
entitled to receive any shares of capital stock of the Company other than
Common Shares, thereafter the number of such other shares so receivable
upon exercise of any Rights 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 13(a) through
(c), inclusive, and the provisions of Section 7, 9, 10, 11, 12 and 14
hereof with respect to the Common Shares shall apply on like terms to any
such other shares.
(f) 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 Common
Shares purchasable from time to time hereunder upon exercise of the Rights,
all subject to further adjustment as provided herein.
(g) Unless the Company shall have exercised its election as
provided in Section 13(h), upon each adjustment of the Purchase Price as a
result of the calculations made in Sections 13(b) and (c), each Right
outstanding immediately prior to the making of such adjustment shall
thereafter evidence the right to purchase, at the adjusted Purchase Price,
that number of Common Shares (calculated to the nearest one ten-thousandth)
obtained by (i) multiplying (x) the number of Common Shares covered by a
Right immediately prior to this adjustment by (y) the Purchase Price in
effect immediately prior to such adjustment of the Purchase Price and (ii)
dividing the product so obtained by the Purchase Price in effect
immediately after such adjustment of the Purchase Price.
(h) 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 Common Shares purchasable
upon the exercise of a Right. Each of the Rights outstanding after the
adjustment in the number of Rights shall be exercisable for the number of
Common Shares for which a Right was exercisable immediately prior to such
adjustment. Each Right held of record prior to such adjustment of the
number of Rights shall become that number of Rights (calculated to the
nearest ten-thousandth) obtained by dividing the Purchase Price in effect
immediately prior to adjustment of the Purchase Price by the Purchase Price
in effect immediately after adjustment of the Purchase Price. The Company
shall make a public announcement of its election to adjust the number of
Rights, indicating the record date for the adjustment, and, if known at the
time, the amount of the adjustment to be made. This record date may be the
date on which the Purchase Price is adjusted or any day thereafter, but, if
the Rights Certificates have been issued, shall be at least 10 calendar
days later than the date of the public announcement. If Rights Certificates
have been issued, upon each adjustment of the number of Rights pursuant to
this Section 13(h), the Company shall, as promptly as practicable, cause to
be distributed to holders of record of Rights Certificates on such record
date Rights Certificates evidencing, subject to Section 14 hereof, the
additional Rights to which such holders shall be entitled as a result of
such adjustment, or, at the option of the Company, shall cause to be
distributed to such holders of record in substitution and replacement for
the Rights Certificates held by such holders prior to the date of
adjustment, and upon surrender thereof, if required by the Company, new
Rights Certificates evidencing all the Rights to which such holders shall
be entitled after such
adjustment. Rights Certificates so to be distributed shall be issued,
executed and countersigned in the manner provided for herein (and may bear,
at the option of the Company, the adjusted Purchase Price) and shall be
registered in the names of the holders of record of Rights Certificates on
the record date specified in the public announcement.
(i) Irrespective of any adjustment or change in the
Purchase Price or the number of Common Shares issuable upon the exercise of
the Rights, the Rights Certificates theretofore and thereafter issued may
continue to express the Purchase Price per share and the number of shares
which were expressed in the initial Rights Certificates issued hereunder.
(j) Before taking any action that would cause an adjustment
reducing the Purchase Price below the par value of the Common 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 of Common Shares at such adjusted Purchase Price.
(k) In any case in which this Section 13 shall require that
an adjustment in the Purchase Price be made effective as of a record date
for a specified event, the Company may elect to defer until the occurrence
of such event the issuance to the holder of any Rights exercised after such
record date of the Common Shares and other capital stock or securities of
the Company, if any, issuable upon such exercise over and above the Common
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 upon the occurrence of the
event requiring such adjustment.
(l) Anything in this Section 13 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 13, as and to the extent that in its sole discretion the
Company shall determine to be advisable in order that any (i) consolidation
or subdivision of the Common Shares, (ii) issuance wholly for cash of any
shares of Common Shares at less than the Current Market Price, (iii)
issuance wholly for cash of Common Shares or securities which by their
terms are convertible into or exchangeable for Common Shares, (iv) stock
dividends, or (v) issuance of rights, options or warrants referred to in
this Section 13, hereafter made by the Company to holders of its Common
Shares shall, if practicable, not be taxable to such shareholders.
(m) The Company covenants and agrees that it shall not (i)
consolidate with, (ii) merge with or into, or (iii) sell or transfer to, in
one or more transactions, assets or earning power aggregating more than 50%
of the assets or earning power of the Company and its Subsidiaries taken as
a whole, any other Person if at the time of or immediately after such
consolidation, merger or sale there are any rights, warrants or other
instruments or securities outstanding or agreements in effect which would
substantially diminish or otherwise eliminate the benefits intended to be
afforded by the Rights.
(n) The Company covenants and agrees that, after the Share
Acquisition Date, it will not, except as permitted by Section 23 or Section
27 hereof, take any action the purpose or effect of which is to diminish
substantially or otherwise eliminate the benefits intended to be afforded
by the Rights, unless such action is approved by a majority of the Board of
Directors.
(o) Whenever an adjustment is made as provided in Sections
11, 12 and 13 hereof, the Company shall (a) promptly prepare a certificate
setting forth such adjustment and a brief statement of the facts accounting
for such adjustment, (b) promptly file with the Rights Agent and with each
transfer agent for the Common Shares a copy of such certificate and (c)
mail a brief summary thereof to each holder of a Rights Certificate in
accordance with Section 26 hereof. The Rights Agent shall be fully
protected in relying on any such certificate and on any adjustment therein
contained, and shall not be deemed to have knowledge of any such adjustment
unless and until it shall have received such certificate.
Section 14. Fractional Rights And Fractional Shares. (a) The
Company shall not be required to issue fractions of Rights or to distribute
Rights Certificates which evidence fractional Rights. In lieu of such fractional
Rights, there shall be paid to the registered holders of the Rights Certificates
with regard to which such fractional Rights would otherwise be issuable, an
amount in cash equal to the same fraction of the Current Market Price of a whole
Right as of the date on which such fractional Rights would have been otherwise
issuable.
(b) The Company shall not be required to issue fractions
of Shares upon exercise or exchange of the Rights or to distribute certificates
which evidence fractional Shares. In lieu of fractional shares, the Company may
pay to the registered holders of Rights Certificates at the time such Rights are
exercised or exchanged as herein provided an amount in cash equal to the same
fraction of the Current Market Price of one Common Share as of the date of such
exercise or exchange.
(c) The holder of a Right by the acceptance of the Rights
expressly waives his right to receive any fractional Rights or any fractional
shares upon exercise or exchange of a Right.
Section 15. Rights Of Action. All rights of action in respect
of this Agreement, except those rights of action vested in the Rights Agent
pursuant to Sections 18 and 20, are vested in the respective registered holders
of the Rights Certificates (and, prior to the Separation Date, the registered
holders of the Common Shares); and any registered holder of any Rights
Certificate (or, prior to the Separation Date, of the Common Shares) without the
consent of the Rights Agent or of the holder of any other Rights Certificate
(or, prior to the Separation Date, of the Common Shares), may, in his own behalf
and for his own benefit, enforce, and may institute and maintain any suit,
action or proceeding against the Company to enforce, or otherwise act in respect
of, his right to exercise the Rights evidenced by such Rights Certificate in the
manner provided in such Rights Certificate and in this Agreement. Without
limiting the foregoing or any remedies available to the holders of Rights, it is
specifically acknowledged that the holders of Rights would not have an adequate
remedy at law for any breach of this Agreement and shall be entitled to specific
performance of the obligations hereunder and
injunctive relief against actual or threatened violations of the obligations
hereunder of any Person subject to this Agreement.
Section 16. Agreement Of Rights Holders. Every holder of a
Right by accepting the same consents and agrees with the Company and the Rights
Agent and with every other holder of a Right that:
(a) prior to the Separation Date, the Rights will be
transferable only in connection with the transfer of Common
Shares;
after the Separation Date, the Rights Certificates are transferable only on
the registry books of the Rights Agent if surrendered at the principal
office of the Rights Agent, duly endorsed or accompanied by a proper
instrument of transfer;
(b) the Company and the Rights Agent may deem and treat
the person in whose name a Rights Certificate (or, prior to the
Separation Date, the associated Common Share certificate) is
registered as the absolute owner thereof and of the Rights
evidenced thereby (notwithstanding any notations of ownership or
writing on the Rights Certificates or the associated Common Share
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
(c) notwithstanding anything in this Agreement to the
contrary, neither the Company nor the Rights Agent shall have any
liability to any holder of a Right or other Person as a result of
its inability to perform any of its obligations under this
Agreement by reason of any preliminary or permanent injunction or
other order, decree or ruling issued by a court of competent
jurisdiction or by a governmental, regulatory or administrative
agency or commission, or any statute, rule, regulation or
executive order promulgated or enacted by any governmental
authority prohibiting or otherwise restraining performance of
such obligation; provided, however, the Company must use its best
efforts to have any such order, decree or ruling lifted or
otherwise overturned.
Section 17. Rights Certificate Holder Not Deemed A
Shareholder. Except as otherwise expressly provided in this Agreement, no
holder, as such, of any Rights Certificate shall be entitled to vote, receive
dividends or be deemed for any purpose the holder of the Common 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 Rights Certificate be construed to confer upon the holder of any
Rights 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, or to receive dividends or subscription rights, or otherwise,
until the Right or Rights evidenced by such Rights Certificate shall have been
exercised in accordance with the provisions hereof.
Section 18. Concerning The Rights Agent. The Company agrees to
pay to the Rights Agent reasonable compensation for all services rendered by it
hereunder and, from time to time, on demand of the Rights Agent, its reasonable
expenses and counsel fees and disbursements and other disbursements incurred in
the administration and execution of this Agreement and the exercise and
performance of its duties hereunder. The Company also agrees to indemnify the
Rights Agent for, and to hold it harmless against, any loss, liability, or
expense, incurred without negligence, bad faith or willful misconduct on the
part of the Rights Agent, for anything done or omitted by the Rights Agent in
connection with the acceptance and administration of this Agreement, including
the costs and expenses of defending against any claim of liability in the
premises. The indemnification provided for hereunder shall survive the
expiration of the Rights and the termination of this Agreement.
The Rights Agent shall be protected and shall incur no
liability for or in respect of any action taken, suffered or omitted by it in
connection with its administration of this Agreement in reliance upon any Rights
Certificate or certificate for Common 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, executed and,
where necessary, verified or acknowledged, by the proper Person or Persons.
Section 19. Merger Or Consolidation Or Change Of Name Of
Rights Agent. Any corporation into which the Rights Agent or any successor
Rights Agent may be merged or with which it may be consolidated, or any
corporation resulting from any merger or consolidation to which the Rights Agent
or any successor Rights Agent shall be a party, or any corporation succeeding to
the corporate trust or stock transfer 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 Rights Certificates shall
have been countersigned but not delivered, any such successor Rights Agent may
adopt the countersignature of predecessor Rights Agent and deliver such Rights
Certificates so countersigned; and in case at that time any of the Rights
Certificates shall not have been countersigned, any successor Rights Agent may
countersign such Rights Certificates either in the name of the predecessor or in
the name of the successor Rights Agent; and in all such cases such Rights
Certificates shall have the full force provided in the Rights Certificates and
in this Agreement.
In case at any time the name of the Rights Agent shall be
changed and at such time any of the Rights Certificates shall have been
countersigned but not delivered, the Rights Agent may adopt the countersignature
under its prior name and deliver Rights Certificates so countersigned; and in
case at that time any of the Rights Certificates shall not have been
countersigned, the Rights Agent may countersign such Rights Certificates either
in its prior name or in its changed name; and in all such cases such Rights
Certificates shall have the full force provided in the Rights Certificates and
in this Agreement.
Section 20. Duties Of Rights Agent. The Rights Agent
undertakes the duties and obligations imposed by this Agreement upon the
following terms and conditions, by all of which the Company and the holders of
Rights Certificates, by their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel (who
may be legal counsel for the Company), and the opinion of such
counsel shall be full and complete authorization and protection
to the Rights Agent as to any action taken or omitted by it in
good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this
Agreement the Rights Agent shall deem it necessary or desirable
that any fact or matter (including, without limitation, the
identity of any Acquiring Person) be proved or established by the
Company prior to taking or suffering any action hereunder, such
fact or matter (unless other evidence in respect thereof be
herein specifically prescribed) may be deemed to be conclusively
proved and established by a certificate signed by the Chairman of
the Board, the President, the Chief Executive Officer, any Vice
President, the Treasurer, any Assistant Treasurer, the Secretary
or any Assistant Secretary of the Company and delivered to the
Rights Agent; and such certificate shall be full authorization to
the Rights Agent, for any action taken or suffered in good faith
by it under the provisions of this Agreement in reliance upon
such certificate.
(c) The Rights Agent shall be liable hereunder only for
its own negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason
of any of the statements of facts or recitals contained in this
Agreement or in the Rights Certificates or be required to verify
the same (except as to its countersignature on such Rights
Certificates), but all such statements and recitals are and shall
be deemed to have been made by the Company only.
(e) The Rights Agent shall not be under any
responsibility in respect of the validity of this Agreement or
the execution and delivery hereof (except the due execution
hereof by the Rights Agent) or in respect of the validity or
execution of any Rights Certificate (except its countersignature
thereof); nor shall it be responsible for any breach by the
Company of any covenant or condition contained in this Agreement
or in any Rights Certificate; nor shall it be responsible for any
adjustment required under the provisions of Sections 11 or 13
hereof or responsible for the manner, method or amount of any
such adjustment or the ascertaining of the existence of facts
that would require any such adjustment (except with respect to
the exercise of Rights evidenced by Rights Certificates after
receipt of the certificate described in Section 13(o) hereof);
nor shall it by any act hereunder be deemed to make any
representation or warranty as to the authorization or reservation
of any Common Shares to be issued pursuant to this
Agreement or any Rights Certificate or as to whether any Common
Shares will, when so issued, be validly authorized and issued,
fully paid and nonassessable.
(f) The Company agrees that it will perform, execute,
acknowledge and deliver or cause to be performed, executed,
acknowledged and delivered all such further and other acts,
instruments and assurances as may reasonably be required by the
Rights Agent for the carrying out or performing by the Rights
Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to
accept instructions with respect to the performance of its duties
hereunder from the Chairman of the Board, the President, the
Chief Executive Officer, any Vice President, the Secretary, any
Assistant Secretary, the Treasurer or any Assistant Treasurer of
the Company, and to apply to such officers for advice or
instructions in connection with its duties, and it shall not be
liable for any action taken or suffered to be taken by it in good
faith in accordance with instructions of any such officer.
(h) The Rights Agent and any 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 legal entity.
(i) The Rights Agent may execute and exercise any of the
rights or powers hereby vested in it or perform any duty
hereunder either itself or by or through its attorneys or agents,
and the Rights Agent shall not be answerable or accountable for
any act, default, neglect or misconduct of any such attorneys or
agents or for any loss to the Company resulting from any such
act, default, neglect or misconduct provided reasonable care was
exercised in the selection and continued employment thereof.
(j) No provision of this Agreement shall require the
Rights Agent to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its duties
hereunder or in the exercise of its rights if there shall be
reasonable grounds for believing that repayment of such funds or
adequate indemnification against such risk or liability is not
reasonably assured to it.
(k) The Rights Agent shall not be required to take notice
or be deemed to have notice of any fact, event or determination
under the Rights Agreement unless and until the Rights Agent
shall be specifically notified in writing by the Company of such
fact, event or determination.
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 calendar days, notice in writing mailed to the Company, and to
each transfer agent of the Common Shares by registered or certified mail, and to
the holders of the Rights Certificates by first-class mail. The Company may
remove the Rights Agent or any successor Rights Agent upon 30 calendar days'
notice in writing, mailed to the Rights Agent or successor Rights Agent, as the
case may be, and to each transfer agent of the Common Shares, by registered or
certified mail, and to the holders of the Rights Certificates by first-class
mail. If the Rights Agent shall resign or be removed or shall otherwise become
incapable of acting, the Company shall appoint a successor to the Rights Agent.
If the Company shall fail to make such appointment within a period of 30
calendar days after giving notice of such removal or after it has been notified
in writing of such resignation or incapacity by the resigning or incapacitated
Rights Agent or by the holder of a Rights Certificate (who shall, with such
notice, submit his Rights Certificate for inspection by the Company), then the
registered holder of any Rights Certificate may apply to any court of competent
jurisdiction for the appointment of a new Rights Agent. Any successor Rights
Agent, whether appointed by the Company or by such a court, shall be a
corporation organized and doing business under the laws of the United States or
of the States of Indiana, Illinois or New York (or of any other state of the
United States so long as such corporation is authorized to do business as a
banking institution in the States of Indiana, Illinois or New York), in good
standing, having a principal office in the State of Indiana, Illinois or New
York, which is authorized under such laws to exercise corporate trust or stock
transfer powers and is subject to supervision or examination by federal or state
authority and which has at the time of its appointment as Rights Agent a
combined capital and surplus of at least $10,000,000. After appointment, the
successor Rights Agent shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named as Rights Agent without
further act or deed; but the predecessor Rights Agent shall deliver and transfer
to the successor Rights Agent any property at the time held by it hereunder, and
execute and deliver any further assurance, conveyance, act or deed necessary for
the purpose. Not later than the effective date of any such appointment the
Company shall file notice thereof in writing with the predecessor Rights Agent
and each transfer agent of the Common Shares, and mail a notice thereof in
writing to the registered holders of the Rights Certificates. Failure to give
any notice provided for in this Section 21, however, or any defect therein,
shall not affect the legality or validity of the resignation or removal of the
Rights Agent or the appointment of the successor Rights Agent, as the case may
be.
Section 22. Issuance Of New Rights Certificates.
Notwithstanding any of the provisions of this Agreement or of the Rights to the
contrary, the Company may, at its option, issue new Rights Certificates
evidencing Rights in such form as may be approved by its Board of Directors to
reflect any adjustment or change in the Purchase Price per share and the number
or kind or class of shares or other securities or property purchasable under the
Rights Certificates made in accordance with the provision of this Agreement.
Section 23. Redemption And Termination. (a) The Board of
Directors of the Company may, at its option, at any time prior to such time as
any Person becomes an Acquiring Person, redeem all but not less than all the
then outstanding Rights at a redemption price of $.01 per Right, appropriately
adjusted to reflect any stock split, stock dividend or similar transaction
occurring after the date hereof (such redemption price being hereinafter
referred to as the "Redemption Price"). The redemption of the Rights by the
Board of Directors may be made effective at such time, on such basis and with
such conditions as the Board of Directors in its sole discretion may establish.
(b) Immediately upon the effectiveness of the action of
the Board of Directors of the Company ordering the redemption of the Rights,
evidence of which shall have been filed with the Rights Agent and without any
further action and without any notice, the right to exercise the Rights will
terminate and the only right thereafter of the holders of Rights shall be to
receive the Redemption Price. Within 10 Business Days after the action of the
Board of Directors ordering the redemption of the Rights, the Company shall give
notice of such redemption to the Rights Agent and the holders of the then
outstanding Rights by mailing such notice to all such holders at their last
addresses as they appear upon the registry books of the Rights Agent or prior to
the Separation Date, on the registry books of the transfer agent for the Common
Shares. Any notice that 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.
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 Common Shares at an exchange ratio of one Common
Share per Right, appropriately adjusted to reflect any stock split, stock
dividend or similar transaction occurring after the date hereof (such exchange
ratio being hereinafter referred to as the "Exchange Ratio").
(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 Common 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 any such exchange; provided,
however, that the failure to give, or any defect in, such notice shall not
affect the validity of such exchange. The Company 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
that is mailed in the manner herein provided shall be deemed given, whether or
not the holder receives the notice. Each such notice of exchange will state the
method by which the exchange of the Common Shares for Rights will be effected
and, in the event of any partial exchange, the number of Rights that 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
Common Shares issued but not outstanding or authorized but unissued to permit
any exchange of Rights as contemplated in accordance with this Section 24, the
Company shall take all such action as may be necessary to authorize additional
Common Shares for issuance upon exchange of the Rights.
Section 25. Notice Of Certain Events. (a) In case the Company
shall propose (i) to pay any dividend payable in stock of any class to the
holders of Common Shares or to make any other distribution to the holders of
Common Shares (other than a regular quarterly cash dividend), or (ii) to offer
to the holders of Common Shares rights or warrants to subscribe for or to
purchase any additional Common Shares or shares of stock of any class or any
other securities, rights or options, or (iii) to effect any reclassification of
its Common Shares (other than a reclassification involving only the subdivision
of outstanding Common Shares), or (iv) to effect any Flip-Over Event, or (v) to
effect the liquidation, dissolution or winding up of the Company, then, in each
such case, the Company shall give to each holder of a Rights Certificate, in
accordance with Section 26 hereof, a notice of such proposed action, which shall
specify the record date for the purposes of such stock dividend, distribution of
rights or warrants, or the date on which such reclassification, Flip-Over Event,
liquidation, dissolution, or winding up is to take place and the date of
participation therein by the holders Common Shares, if any such date is to be
fixed, and such notice shall be so given in the case of any action covered by
clause (i) or (ii) above at least 20 calendar days prior to the record date for
determining holders of Common Shares for purposes of such action, and in the
case of any such other action, at least 20 calendar days prior to the date of
the taking of such proposed action or the date of participation therein by the
holders of Common Shares whichever shall be the earlier.
(b) Upon the occurrence of a Flip-In Event or a Flip-Over
Event, the Company or Principal Party, as the case may be, shall as soon as
practicable thereafter give to each holder of a Rights Certificate, to the
extent feasible and in accordance with Section 26 hereof, a notice of the
occurrence of such event and the consequences thereof to holders of Rights under
Sections 11(a) or 12(a) hereof, as the case may be.
Section 26. Notices. Notices or demands authorized by this
Agreement to be given or made by the Rights Agent or by the holder of any Rights
Certificate to or on the Company shall be sufficiently given or made if sent by
first-class mail, postage prepaid, addressed (until another address is filed in
writing with the Rights Agent) as follows:
Coachmen Industries, Inc.
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Executive Vice President, Finance
Subject to the provisions of Section 21, any notice or demand authorized by this
Agreement to be given or made by the Company or by the holder of any Rights
Certificate to or on the Rights Agent shall be sufficiently given or made if
delivered by first-class mail, postage prepaid, addressed (until another address
is filed in writing with the Company) as follows:
First Chicago Trust Company of New York
00 Xxxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Tenders & Exchanges Administration
Notices or demands authorized by this Agreement to be given or made by the
Company or the Rights Agent to the holder of any Rights Certificate shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed to such holder at the address of such holder as shown on the registry
books of the Company. The Company shall deliver a copy of any notice or demand
it delivers to the holder of any Rights Certificate to the Rights Agent and the
Rights Agent shall deliver a copy of any notice or demand it deliver to the
holder of any Rights Certificate to the Company.
Section 27. Supplements And Amendments. The Company may, and
the Rights Agent shall from time to time, if the Company so directs, supplement
or amend this Agreement without the approval of any holders of Rights in order
(i) to cure any ambiguity, (ii) to correct or supplement any provision contained
herein which may be defective or inconsistent with any other provisions herein,
(iii) prior to the time any Person becomes an Acquiring Person, to change or
supplement the provisions hereunder which the Company may deem necessary or
desirable to effectuate the purposes of this Agreement or (iv) following the
time any Person becomes an Acquiring Person, to change or supplement the
provisions hereunder in any manner which the Company may deem necessary or
desirable provided that such change or supplement shall not adversely affect the
interests of the holders of Rights. 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 time any Person becomes
an Acquiring Person, the interests of the holders of Rights shall be deemed
coincident with the interests of the holders of Common Shares.
Section 28. Successors. All the covenants and provisions of
this Agreement by or for the benefit of the Company or the Rights Agent shall
bind and inure to the benefit of their respective successors and assigns
hereunder.
Section 29. Benefits Of This Agreement. Nothing in this
Agreement shall be construed to give to any Person other than the Company, the
Rights Agent and the registered holders of the Rights Certificates (and, prior
to the Separation Date, the Common Shares) any legal or equitable right, remedy
or claim under this Agreement; but this Agreement shall be for the sole and
exclusive benefit of the Company, the Rights Agent and the registered holders of
the Rights Certificates (and, prior to the Separation Date, the Common 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.
Section 31. Governing Law. This Agreement, each Right and each
Rights Certificate issued hereunder shall be deemed to be a contract made under
the laws of the State of Indiana and for all purposes shall be governed by and
construed in accordance with the laws of such State applicable to contracts made
and to be performed entirely within such State, except for Sections 18, 19, 20
and 21 which for all purposes shall be governed by and construed in accordance
with the laws 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.
* * *
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: COACHMEN INDUSTRIES, INC.
By:______________________________ By: ____________________________
Name: Xxxxxxx X. Xxxxxx
Title: Secretary
[SEAL]
Attest: FIRST CHICAGO TRUST COMPANY
OF NEW YORK, as Rights Agent
By:______________________________ By: ____________________________
Name: Name:
Title: Title:
Exhibit A
---------
[Form of Rights Certificate]
Certificate No. R- ________ Rights
NOT EXERCISABLE AFTER FEBRUARY 1, 2010 OR EARLIER IF NOTICE OF
REDEMPTION IS GIVEN. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE
OPTION OF THE COMPANY, AT $.01 PER RIGHT ON THE TERMS SET FORTH IN THE
RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY
OWNED BY ACQUIRING PERSONS (AS DEFINED IN THE RIGHTS AGREEMENT) AND ANY
SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID.
Rights Certificate
COACHMEN INDUSTRIES, INC.
This certifies that _____________________________, or
registered assigns, is the registered owner of the number of Rights set forth
above, each of which entities the owner thereof, subject to the terms,
provisions and conditions of the Rights Agreement dated as of January 5, 2000 to
be effective January 12, 2000 (the "Rights Agreement") between Coachmen
Industries, Inc., an Indiana corporation (the "Company"), and First Chicago
Trust Company of New York, a New York corporation (the "Rights Agent"), to
purchase from the Company at any time after the Separation Date (as such term is
defined in the Rights Agreement) and prior to 5:00 P.M. (New York time) on
February 1, 2010 at the office of the Rights Agent designated for such purpose,
or its successor as Rights Agent, one fully paid and nonassessable common share
(the "Common Shares") of the Company, at a purchase price of $75.00 per share
(the "Purchase Price"), upon presentation and surrender of this Rights
Certificate with the Form of Election to Purchase and the related Certificate
duly executed.
The number of Rights evidenced by this Rights Certificate (and
the number of shares which may be purchased upon exercise thereof) set forth
above, and the Purchase Price per share set forth above, are the number and
Purchase Price as of January 12, 2000. As provided in the Rights Agreement, the
Purchase Price, the type of security, and the number of Common Shares which may
be purchased upon the exercise of the Rights evidenced by this Rights
Certificate are subject to modification and adjustment upon the happening of
certain events.
This Rights Certificate is subject to all of the terms,
provisions and conditions of the Rights Agreement, which terms, provisions and
conditions are hereby incorporated herein by reference and made a part hereof
and to which Rights Agreement reference is hereby made for a
full description of the rights, limitations of rights, obligations, duties and
immunities hereunder of the Rights Agent, the Company and the holders of the
Rights Certificates. Copies of the Rights Agreement are on file at the
above-mentioned office of the Rights Agent and are also available upon written
request to the Company.
This Rights Certificate, with or without other Rights
Certificates, upon surrender at the office of the Rights Agent designated for
such purpose, may be exchanged for another Rights Certificate or Rights
Certificates of like tenor and date evidencing Rights entitling the holder to
purchase a like Aggregate number of Common Shares as the Rights evidenced by the
Rights Certificate or Rights Certificates surrendered shall have entitled such
holder to purchase. If this Rights Certificate shall be exercised in part, the
holder shall be entitled to receive upon surrender hereof another Rights
Certificate or Rights Certificates for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights
evidenced by this Certificate (i) may be redeemed by the Company at its option
at a redemption price of $.01 per Right or (ii) may be exchanged in whole or in
part for Common Shares.
No fractional Common Shares will be issued upon the exercise
of any Right or Rights evidenced hereby, but in lieu thereof a cash payment will
be made, as provided in the Rights Agreement.
No holder of this Rights Certificate, as such, shall be
entitled to vote or receive dividends or be deemed for any purpose the holder of
Common Shares or of any other securities of the Company which may at any time be
issuable on the exercise hereof, nor shall anything contained in the Rights
Agreement or herein be construed to confer upon the holder hereof, as such, any
of the rights of a 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 the Rights Agreement), or to receive dividends or subscription
rights, or otherwise, until the Right or Rights evidenced by this Rights
Certificate shall have been exercised as provided in the Rights Agreement.
This Rights Certificate shall not be valid or obligatory for
any purpose until it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the
Company and its corporate seal.
Dated as of _____________ ___, ______
[Seal]
ATTEST: COACHMEN INDUSTRIES, INC.
_____________________________________ By:______________________
Secretary or Assistant Secretary Title:
Countersigned:
FIRST CHICAGO TRUST COMPANY OF NEW YORK
as Rights Agent
By:_____________________________________
Authorized Signature
[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
------------------
(To be executed by the registered holder if such
holder desires to transfer the Rights Certificate.)
FOR VALUE RECEIVED __________________________________________________ hereby
sells, assigns and transfer unto ____________________________________________
------------------------------------------------------------------------------
(Please print name and address of transferee)
------------------------------------------------------------------------------
this Rights Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint ________________ as attorney
to transfer the within Rights Certificate on the books of the within-named
Company, with full power of substitution.
Dated: __________________, ______
--------------------------------
Signature
Signature Guaranteed:
------------------------------------
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 or an Affiliate or Associate thereof (as each such
term is defined in to the Rights Agreement); and
(2) After due inquiry and to the best knowledge of the
undersigned, the undersigned [ ] did [ ] did not acquire the Rights
evidenced by this Rights Certificate after the time when a Person (as
defined in the Rights Agreement) become an Acquiring Person from any
Person who is, was or became an Acquiring Person or an Affiliate or
Associate thereof.
Dated: _____________________, ______ _________________________
Signature
NOTICE
------
The signatures to the foregoing Form of Assignment and
Certificate must correspond to the name as written upon the face of this Rights
Certificate in every particular, without alteration or enlargement or any change
whatsoever.
FORM OF ELECTION TO PURCHASE
----------------------------
(To be executed if holder desires to
exercise Rights represented by the
Rights Certificate.)
To: COACHMEN INDUSTRIES, INC.
The undersigned hereby irrevocably elects to exercise
_______________ Rights represented by this Rights Certificate to purchase the
Common Shares issuable upon the exercise of the Rights and requests that
certificates for such shares be issued in the name of:
Please insert social security
or other identifying number ___________________________________________
------------------------------------------------------------------------------
(Please print name and address)
------------------------------------------------------------------------------
------------------------------------------------------------------------------
If such number of Rights shall not be all the Rights evidenced
by this Rights Certificate, a new Rights Certificate for the balance of such
Rights shall be registered in the name of and delivered to:
Please insert social security
or other identifying number ___________________________________________
------------------------------------------------------------------------------
(Please print name and address)
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Dated ___________________, _____
-------------------------
Signature
Signature Guaranteed:
____________________________________
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 or an Affiliate or Associate thereof (as each such
term is defined in to the Rights Agreement); and
(2) After due inquiry and to the best knowledge of the
undersigned, the undersigned [ ] did [ ] did not acquire the Rights
evidenced by this Rights Certificate after the time when a Person (as
defined in the Rights Agreement) become an Acquiring Person from any
Person who is, was or became an Acquiring Person or an Affiliate or
Associate thereof.
Dated: _______________________, _____ ______________________________
Signature
NOTICE
------
The signatures to the foregoing Election to Purchase and
Certificate must correspond to the name as written upon the face of this Rights
Certificate in every particular, without alteration or enlargement or any change
whatsoever.
Exhibit B
---------
SUMMARY OF RIGHTS TO PURCHASE COMMON SHARES
On October 21, 1999, the Board of Directors of Coachmen
Industries, Inc. (the "Company") declared a dividend distribution of one common
share purchase right (the "Rights") on each outstanding common share, without
par value (the "Common Shares"), of the Company. The distribution will be made
to shareholders of-record on January 12, 2000 (the "Record Date"). The
description and terms of the Rights are set forth in a Rights Agreement (the
"Rights Agreement") between the Company and First Chicago Trust Company of New
York, as Rights Agent (the "Rights Agent"). Except as set forth below, each
Right will entitle the registered holder thereof to purchase from the Company
one Common Share, at a purchase price of $75.00 per share (the "Purchase
Price"), subject to anti-dilutive adjustments described below.
The Rights will be represented by the Common Share
certificates and will not be exercisable or transferable apart from the Common
Shares until the earlier to occur of (i) 10 Business Daysfollowing a public
announcement that a person or group of persons (an "Acquiring Person") has
acquired, or obtained the right to acquire, beneficial ownership of 20% or more
of the outstanding Common Shares (the "Share Acquisition Date") or (ii) 10
Business Days following the commencement of (or announcement of an intention to
make) a tender offer or exchange offer if, upon consummation thereof, such
person or group would be the beneficial owner of 20% or more of the outstanding
Common Shares (the earlier of such dates being called the "Separation Date").
Until the Separation Date (or earlier redemption, exchange or expiration of the
Rights), new Common Share certificates issued after the Record Date upon
transfer or new issuance of Common Shares will contain a notation incorporating
the Rights Agreement by reference. As soon as practicable following the
Separation Date, separate certificates evidencing the Rights (the "Rights
Certificates") will be mailed to holders of record of the Common Shares as of
the close of business on the Separation Date. From and after the Separation
Date, the separate Rights Certificates alone will evidence the Rights. The
Rights will expire at the close of business on February 1, 2010 (the "Final
Expiration Date") unless earlier redeemed or exchanged by the Company as
described below.
In the event that any person or group of persons becomes an
Acquiring Person, each holder of a Right (other than the Acquiring Person, whose
Rights will become null and void) will thereafter have the right to receive,
upon the exercise thereof at the then current Purchase Price, a number of Common
Shares which at the time of such transaction would have a market value of two
times the current Purchase Price.
In the event that the Company is acquired in a merger or other
business combination transaction or more than 50% of its assets or earning power
is sold, each holder of a Right (other than the Acquiring Person, whose Rights
will become null and void) will thereafter have the right to receive, upon the
exercise thereof at the then current
Purchase Price, a number of common shares of the acquiring company which at the
time of such transaction would have a market value of two times such Purchase
Price.
At any time after a person or group of persons become an
Acquiring Person, the Board of Directors of the Company may exchange the Rights
(other than the Rights owned by the Acquiring Person, which will become null and
void), in whole or in part, at an exchange ratio of one Common Share per Right
(subject to adjustment).
At any time prior to a person or a group of persons becoming
an Acquiring Person, 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"). The redemption of the Rights may be made effective at such time, on
such basis and with such conditions as the Board of Directors in its sole
discretion may establish. Immediately upon the effectiveness of the action of
the Board of Directors of the Company ordering redemption of the Rights, the
Rights will terminate and the only right of the holders of Rights will be to
receive the Redemption Price.
The Purchase Price payable, and the number of Common Shares or
other securities or property issuable, upon exercise of the Rights, are subject
to adjustment from time to time to prevent dilution (i) in the event of a stock
dividend on, or a subdivision, combination or reclassification of, the Common
Shares, (ii) upon the grant to holders of the Common Shares of certain rights or
warrants to subscribe for Common Shares or convertible securities at less than
the current market price of the Common Shares, or (iii) upon the distribution to
holders of the Common Shares of evidences of indebtedness or assets (excluding
regular quarterly cash dividends) or of subscription rights or warrants (other
than those referred to above).
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.
Prior to the time any person or group of persons becomes an
Acquiring Person, the Company may amend the Rights Agreement in any manner
without the approval of the holders of Rights. Following the time any person or
group of persons becomes an Acquiring Person, the Company may amend the Rights
Agreement without the approval of the holders of Rights in any manner that does
not adversely affect the interests of the holders of Rights.
A copy of the Rights Agreement has been filed with the
Securities and Exchange Commission as an Exhibit to a Registration Statement on
Form 8-A. A copy of the Rights Agreement is available free of charge from the
Company, Financial Department, X.X. Xxx 0000, Xxxxxxx, Xxxxxxx 00000. This
summary description of the Rights does not purport to be complete and is
qualified in its entirety by reference to the Rights Agreement, which is
incorporated herein by reference.
