EXHIBIT 4.3
RIGHTS AGREEMENT
This RIGHTS AGREEMENT, dated as of _____________, 2001 (this "Agreement"),
is made and entered into by and between Certegy Inc., a Georgia corporation (the
"Company"), and SunTrust Bank, a Georgia banking corporation (the "Rights
Agent").
RECITALS
WHEREAS, on ___________, 2001, the Board of Directors of the Company
authorized and declared a dividend distribution of one right ("Right") for each
share of Common Stock, par value $.01 per share, of the Company (a "Common
Share") outstanding as of the Close of Business (as hereinafter defined) on
________, 2001 (the "Record Date"), each Right initially representing the right
to purchase one Common Share, upon the terms and subject to the conditions
herein set forth, and further authorized and directed the issuance of one Right
with respect to each Common Share issued or delivered by the Company (whether
originally issued or delivered from the Company's treasury) after the Record
Date but prior to the earlier of the Distribution Date (as hereinafter defined)
and the Expiration Date (as hereinafter defined).
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 shall have the meanings indicated:
(a) "Acquiring Person" shall mean any Person (other than the Company or any
Subsidiary of the Company or any employee benefit or stock ownership plan of the
Company or of any Subsidiary of the Company or any entity holding Common Shares
for or pursuant to the terms of any such plan or, prior to the Spinoff Date,
Equifax Inc. or any of its Affiliates or Associates) who or which, together with
all Affiliates and Associates of such Person, shall be the Beneficial Owner of
15% or more of the Common Shares then outstanding; provided, however, that a
Person shall not be deemed to have become an Acquiring Person solely as a result
of a reduction in the number of Common Shares outstanding or solely as a result
of any acquisition that is approved in advance by the Board of Directors of the
Company, in each case unless and until such time as (i) such Person or any
Affiliate or Associate of such Person shall thereafter become the Beneficial
Owner of any additional Common Shares, other than as a result of a stock
dividend, stock split or similar transaction effected by the Company in which
all holders of Common Shares are treated equally or in a transaction that is
approved in advance by the Board of Directors, or (ii) any other Person who is
the Beneficial Owner of any Common Shares shall thereafter become an Affiliate
or Associate of such Person. Notwithstanding the foregoing, if the Board of
Directors determines in good faith that a Person who otherwise would be an
Acquiring Person as defined under the foregoing provisions of this Section 1(a)
has become such inadvertently, and such Person has divested or agrees to divest
as promptly as practicable (as determined by the Board of Directors of the
Company) a sufficient number of Common Shares so that such Person would no
longer be an Acquiring Person as defined under the foregoing
provisions, then such Person shall not be deemed an Acquiring Person for any
purposes of this Agreement unless and until such Person shall again become an
Acquiring Person as herein defined.
(b) "Affiliate" and "Associate" shall have the respective meanings ascribed
to such terms in Rule 12b-2 of the General Rules and Regulations under the
Exchange Act, as in effect on the date of this Agreement.
(c) A Person shall be deemed the Beneficial Owner of, and to "beneficially
own," any securities:
(i) which such Person or any of such Person's Affiliates or
Associates, 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 (in each
case, other than upon exercise or exchange of the Rights); provided,
however, that a Person shall not be deemed the Beneficial Owner of, or
to beneficially own, securities tendered pursuant to a tender or
exchange offer made by or on behalf of such Person or any of such
Person's Affiliates or Associates until such tendered securities are
accepted for purchase or exchange; or
(ii) which such Person or any of such Person's Affiliates or
Associates, directly or indirectly, has the right to vote or dispose
of, including pursuant to any agreement, arrangement or understanding
(whether or not in writing); or
(iii) of which any other Person is the Beneficial Owner, if such
Person or any of such Person's Affiliates or Associates has any
agreement, arrangement or understanding (whether or not in writing)
with such other Person (or any of such other Person's Affiliates or
Associates) with respect to acquiring, holding, voting or disposing of
any securities of the Company; provided, however, that a Person shall
not be deemed the Beneficial Owner of, or to beneficially own, any
security (A) if such Person has the right to vote such security
pursuant to an agreement, arrangement or understanding (whether or not
in writing) which (1) arises solely from a revocable proxy given to
such Person in response to a public proxy or consent solicitation made
pursuant to, and in accordance with, the applicable rules and
regulations of the Exchange Act and (2) is not also then reportable on
Schedule 13D under the Exchange Act (or any comparable or successor
report), or (B) if such beneficial ownership arises solely as a result
of such Person's status as a "clearing agency", as defined in Section
3(a)(23) of the Exchange Act; and provided, further, that nothing in
this paragraph (c) shall cause a Person engaged in business as an
underwriter of securities to be the Beneficial Owner of, or to
beneficially own, any securities acquired through such Person's
participation in good faith in an underwriting syndicate until the
expiration of 40 calendar days after the date of such acquisition, or
such later date as the Board of Directors of the Company may determine
in any specific case.
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(d) "Business Day" shall mean any day other than a Saturday, Sunday or a
day on which banking institutions in the State of Georgia (or such other state
in which the principal office of the Rights Agent is located) are authorized or
obligated by law or executive order to close.
(e) "Close of Business" on any given date shall mean 5:00 P.M., Eastern
time, on such date; provided, however, that if such date is not a Business Day
it shall mean 5:00 P.M., Eastern time, on the next succeeding Business Day.
(f) "Common Shares" when used with reference to the Company shall mean the
Common Stock, par value $.01 per share, of the Company; provided, however, that,
if the Company is the continuing or surviving corporation in a transaction
described in Section 11(a)(ii) or Section 13(a)(ii) hereof, "Common Shares" when
used with reference to the Company shall mean the capital stock or equity
security with the greatest aggregate voting power of the Company. Common Shares
when used with reference to any corporation or other legal entity, other than
the Company, including an Issuer, shall mean the capital stock or equity
security with the greatest aggregate voting power of such corporation or other
legal entity.
(g) "Company" shall mean Certegy Inc., a Georgia corporation.
(h) "Distribution Date" shall mean the earliest of: (i) the Close of
Business on the tenth calendar day (or, unless the Distribution Date shall have
previously occurred, such later date as may be specified by the Board of
Directors of the Company) after the Share Acquisition Date, (ii) the Close of
Business on the tenth Business Day (or, unless the Distribution Date shall have
previously occurred, such later date as may be specified by the Board of
Directors of the Company) after the date of the commencement of a tender or
exchange offer by any Person (other than the Company or any Subsidiary of the
Company or any employee benefit or stock ownership plan of the Company or of any
Subsidiary of the Company or any entity holding Common Shares for or pursuant to
the terms of any such plan), if upon the consummation thereof such Person would
be the Beneficial Owner of 15% or more of the outstanding Common Shares, and
(iii) the Close of Business on the tenth calendar day after the first date of
public announcement by the Company or an Acquiring Person (by press release,
filing made with the Securities and Exchange Commission or otherwise) of the
first occurrence of a Triggering Event; provided, however, that if the earliest
of such dates would otherwise occur prior to the Record Date, the Distribution
Date shall mean the Close of Business on the Record Date.
(i) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
(j) "Expiration Date" shall mean the earliest of (i) the Close of Business
on the Final Expiration Date, (ii) the time at which the Rights are redeemed as
provided in Section 23 hereof, and (iii) the time at which all exercisable
Rights are exchanged as provided in Section 27 hereof.
(k) "Final Expiration Date" shall mean the tenth anniversary of the Record
Date.
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(l) "Flip-in Event" shall mean any event described in clauses (A) (B) or
(C) of Section 11(a)(ii) hereof.
(m) "Flip-over Event" shall mean any event described in subsections (i),
(ii), (iii) or (iv) of Section 13(a) hereof.
(n) "Issuer" shall have the meaning set forth in Section 13(b) hereof.
(o) "NASDAQ" shall mean the National Association of Securities Dealers,
Inc. Automated Quotation System.
(p) "NYSE" shall mean the New York Stock Exchange, Inc.
(q) "Person" shall mean any individual, firm, corporation, partnership or
other legal entity, and shall include any successor (by merger or otherwise) of
such entity.
(r) "Purchase Price" shall mean initially $125.00 per Common Share, and
shall be subject to further adjustment from time to time as provided in this
Agreement.
(s) "Redemption Price" shall mean $0.01 per Right, subject to adjustment by
resolution of the Board of Directors of the Company to reflect any stock split,
stock dividend or similar transaction occurring after the date hereof.
(t) "Right" shall have the meaning set forth in the Recitals to this
Agreement.
(u) "Right Certificates" shall mean certificates evidencing the Rights, in
substantially the form of Exhibit A attached hereto.
(v) "Rights Agent" shall mean SunTrust Bank, unless and until a successor
Rights Agent shall have become such pursuant to the terms of this Agreement, and
thereafter, "Rights Agent" shall mean such successor Rights Agent.
(w) "Securities Act" shall mean the Securities Act of 1933, as amended.
(x) "Share Acquisition Date" shall mean the first date of public
announcement by the Company or an Acquiring Person (by press release, filing
made with the Securities and Exchange Commission or otherwise) that an Acquiring
Person has become such.
(y) "Spinoff Date" shall mean the time at which Equifax Inc. shall
distribute all of the Common Shares of the Company it owns to its shareholders
pursuant to the Distribution Agreement, Plan of Reorganization and Distribution
dated as of _________, 2001, as amended or supplemented from time to time.
(z) "Subsidiary" when used with reference to any Person shall mean any
corporation or other legal entity of which a majority of the voting power of the
voting equity securities or equity interests is owned, directly or indirectly,
by such Person; provided, however, that for
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purposes of Section 13(b) hereof, Subsidiary when used with reference to any
Person shall mean any corporation or other legal entity of which at least 20% of
the voting power of the voting equity securities or equity interests is owned,
directly or indirectly, by such Person.
(aa) "Trading Day" shall mean any day on which the principal national
securities exchange on which the Common Shares are listed or admitted to trading
is open for the transaction of business or, if the Common Shares are not listed
or admitted to trading on any national securities exchange, a Business Day.
(bb) "Triggering Event" shall mean any Flip-in Event or Flip-over Event.
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 also be, prior to
the Distribution Date, the holders of the Common Shares) in accordance with
the terms and conditions hereof, and the Rights Agent hereby accepts such
appointment and hereby certifies that it complies with the requirements of
the NYSE governing transfer agents and registrars. The Company may from
time to time act as Co-Rights Agent or appoint such Co-Rights Agents as it
may deem necessary or desirable. Any actions which may be taken by the
Rights Agent pursuant to the terms of this Agreement may be taken by any
such Co-Rights Agent. To the extent that any Co-Rights Agent takes any
action pursuant to this Agreement, such Co-Rights Agent shall be entitled
to all of the rights and protections of and subject to all of the
applicable duties and obligations imposed upon, the Rights Agent pursuant
to the terms of this Agreement.
Section 3. Issue of Right Certificates.
(a) Until the Distribution Date, (i) the Rights shall be evidenced by
the certificates representing Common Shares registered in the names of the
record holders thereof (which certificates representing Common Shares shall
also be deemed to be Right Certificates), (ii) the Rights shall be
transferable only in connection with the transfer of the underlying Common
Shares, and (iii) the surrender for transfer of any certificates evidencing
Common Shares in respect of which Rights have been issued shall also
constitute the transfer of the Rights associated with the Common Shares
evidenced by such certificates.
(b) Promptly upon request, the Company shall send a copy of this
Agreement by first-class, postage prepaid mail, to any record holder of
Common Shares requesting the same (or, at the Company's option, shall send
a letter summarizing the terms of the Rights), at the address of such
holder shown on the records of the Company as of such date.
(c) Rights shall be issued by the Company in respect of all Common
Shares (other than Common Shares issued upon the exercise or exchange of
any Right) issued or delivered by the Company (whether originally issued or
delivered from the Company's treasury) after the Record Date but prior to
the earlier of the Distribution Date and the
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Expiration Date. Certificates evidencing such Common Shares shall have
stamped on, impressed on, printed on, written on or otherwise affixed to
them the following legend or such similar legend as the Company may deem
appropriate and as is 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 or transaction reporting system on which the Common
Shares may from time to time be listed or quoted, or to conform to usage:
This Certificate also evidences and entitles the holder hereof to
certain Rights as set forth in a Rights Agreement between Certegy Inc.
and SunTrust Bank, dated as of ___________, 2001 (the "Rights
Agreement"), the terms of which are hereby incorporated herein by
reference and a copy of which is on file at the principal executive
offices of Certegy Inc. Under certain circumstances, as set forth in
the Rights Agreement, such Rights may be redeemed, may expire, may be
amended or may be evidenced by separate certificates and no longer be
evidenced by this Certificate. Certegy Inc. will mail to the holder
of this Certificate a copy of the Rights Agreement without charge
promptly after receipt of a written request therefor. Under certain
circumstances as set forth in the Rights Agreement, Rights
beneficially owned by an Acquiring Person or any Affiliate or
Associate of an Acquiring Person (as such terms are defined in the
Rights Agreement) may become null and void.
(d) As promptly as practicable after the Distribution Date, the
Company shall prepare and execute, the Rights Agent will countersign and
the Company shall send or cause to be sent (and the Rights Agent shall, if
requested, send), by first-class, insured, postage prepaid mail, to each
record holder of Common Shares as of the Close of Business on the
Distribution Date, at the address of such holder shown on the records of
the Company, a Right Certificate, evidencing one Right for each Common
Share so held, subject to adjustment. As of and after the Distribution
Date, the Rights shall be evidenced solely by such Right Certificates.
Section 4. Form of Right Certificates. (a) The Right Certificates
(and the form of election to purchase and form of assignment to be printed
on the reverse thereof) shall be substantially in the form set forth as
Exhibit A hereto with such changes, 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 or transaction reporting system on which
the Rights may from time to time be listed or quoted, or to conform to
usage. Subject to the provisions of Section 22 hereof, the Right
Certificates, whenever issued, on their face shall entitle the holders
thereof to purchase such number of Common Shares as shall be set forth
therein at the Purchase Price set forth therein, but the Purchase Price,
the number and kind of securities issuable upon exercise of each Right and
the number of Rights outstanding shall be subject to adjustment as provided
herein.
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(b) Any Rights Certificate issued hereunder that represents Rights
beneficially owned by (i) an Acquiring Person or any Associate or Affiliate
of an Acquiring Person, (ii) a transferee of an Acquiring Person (or an any
such Associate or Affiliate) who becomes a transferee after the Acquiring
Person becomes such, or (iii) a transferee of an Acquiring Person (or of
any such Associate or Affiliate) who becomes a transferee prior to or
concurrently with the Acquiring Person becoming such and receives such
Rights pursuant to either (A) a transfer (whether or not for consideration)
from the Acquiring Person to holders of equity interests in such Acquiring
Person or to any Person with whom such Acquiring Person has any continuing
agreement, arrangement or understanding regarding the transferred Rights or
(b) a transfer that the Board of Directors of the Company has determined is
part of a plan, arrangement or understanding that has the primary purpose
or effect the avoidance of Section 7(d) hereof, and any Right Certificate
issued pursuant to Section 6 or Section 11 hereof upon transfer, exchange,
replacement or adjustment of any other Right Certificate referred to in
this sentence, shall contain (to the extent feasible) the following legend:
The Rights represented by this Right Certificate are or were
beneficially owned by Person who was or became an Acquiring Person or an
Affiliate or Associate of an Acquiring Person (as such terms are defined in
the Rights Agreement). Accordingly, this Right Certificate and the Rights
represented hereby may become null and void in the circumstances specified
in the Rights Agreement.
Section 5. Countersignature and Registration.
(a) The Right Certificates shall be executed on behalf of the Company
by its Chairman of the Board, President 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 Right 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 Right Certificates shall cease to be such officer of the Company
before countersignature by the Rights Agent and issuance and delivery by
the Company, such Right Certificates, nevertheless, may be countersigned by
the Rights Agent, and issued and delivered by the Company with the same
force and effect as though the person who signed such Right Certificates
had not ceased to be such officer of the Company; and any Right Certificate
may be signed on behalf of the Company by any person who, at the actual
date of the execution of such Right Certificate, shall be a proper officer
of the Company to sign such Right Certificate, although at the date of the
execution of this Rights Agreement any such person was not such an officer.
(b) Following the Distribution Date, the Rights Agent shall keep or
cause to be kept, at the principal office of the Rights Agent designated
for such purpose and at such other offices 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 or any
transaction reporting system on which the Rights may from time to time be
listed
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or quoted, books for registration and transfer of the Right Certificates
issued hereunder. Such books shall show the names and addresses of the
respective holders of the Right Certificates, the number of Rights
evidenced on its face by each of the Right Certificates and the date of
each of the Right Certificates.
Section 6. Transfer, Split Up, Combination and Exchange of Right
Certificates; Mutilated, Destroyed, Lost or Stolen Right Certificates.
(a) Subject to the provisions of Sections 7(d) and 14 hereof, at any
time after the Close of Business on the Distribution Date and prior to the
Expiration Date, any Right Certificate or Right Certificates representing
exercisable Rights may be transferred, split up, combined or exchanged for
another Right Certificate or Right Certificates, entitling the registered
holder to purchase a like number of Common Shares (or other securities, as
the case may be) as the Right Certificate or Right Certificates surrendered
then entitled such holder (or former holder in the case of a transfer) to
purchase. Any registered holder desiring to transfer, split up, combine or
exchange Right Certificates shall make such request in writing delivered to
the Rights Agent, and shall surrender the Right Certificate or Right
Certificates to be transferred, split up, combined or exchanged at the
principal office of the Rights Agent designated for such purpose.
Thereupon or as promptly as practicable thereafter, subject to the
provisions of Sections 7(d) and 14 hereof, the Company shall prepare,
execute and deliver to the Rights Agent, and the Rights Agent shall
countersign and deliver a Right Certificate or Right 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 Right
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 Right Certificate, and 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 Right Certificate if mutilated, the
Company shall prepare, execute and deliver a new Right Certificate of like
tenor to the Rights Agent and the Rights Agent shall countersign and
deliver such new Right Certificate to the registered holder in lieu of the
Right Certificate so lost, stolen, destroyed or mutilated.
Section 7. Exercise of Rights; Purchase Price; Expiration Date of
Rights.
(a) The registered holder of any Right Certificate may exercise the
Rights evidenced thereby (except as otherwise provided herein) in whole or
in part at any time after the Distribution Date and prior to the Expiration
Date, upon surrender of the Right Certificate, with the form of election to
purchase on the reverse side thereof duly executed, to the Rights Agent at
the office or offices of the Rights Agent designated for such purpose,
together with payment in cash, in lawful money of the United States of
America by certified check or bank draft payable to the order of the
Company equal to the sum of (i) the aggregate Purchase Price for the total
number of securities as to which
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such surrendered Rights are exercised and (ii) an amount equal to any
applicable transfer tax required to be paid by the holder of such Right
Certificate in accordance with the provisions of Section 9 hereof. In lieu
of the cash payment referred to in the immediately preceding sentence,
following the occurrence of a Triggering Event, the registered holder of a
Right Certificate may exercise the Rights evidenced thereby (except as
otherwise provided herein) in whole or in part upon surrender of the Right
Certificate as described above together with an election to exercise such
Rights without payment of cash on the reverse side thereof duly completed.
With respect to any Rights as to which such an election is made, the holder
shall receive a number of Common Shares or other securities having a value
equal to the difference between (x) the value of the Common Shares or other
securities that would have been issuable upon payment of the cash amount as
described above, and (y) the sum of items (i) and (ii) above. For purposes
of this Section 7(a), the value of any Common Share or other security shall
be the current per share market price of a Common Share (determined
pursuant to Section 11(d) hereof) on the Trading Day immediately preceding
the date of the first occurrence of a Triggering Event.
(b) Upon receipt of a Right Certificate representing exercisable
Rights with the form of election to purchase duly executed, accompanied by
either payment as described in Section 7(a) above or a duly completed
election to exercise without payment of cash, the Rights Agent shall
promptly (i) requisition from any transfer agent of the Common Shares (or
make available, if the Rights Agent is the transfer agent) certificates
representing the number of Common Shares to be purchased (and the Company
hereby irrevocably authorizes and directs its transfer agent to comply with
all such requests), (ii) after receipt of such certificates, cause the same
to be delivered to or upon the order of the registered holder of such Right
Certificate, registered in such name or names as may be designated by such
holder, (iii) when appropriate, requisition from the Company or any
transfer agent therefor (or make available, if the Rights Agent is the
transfer agent) certificates representing the number of equivalent common
shares to be issued in lieu of the issuance of Common Shares in accordance
with the provisions of Section 11(a)(iii) hereof, (iv) when appropriate,
after receipt of such certificates, cause the same to be delivered to or
upon the order of the registered holder of such Right Certificate,
registered in such name or names as may be designated by such holder, (v)
when appropriate, requisition from the Company the amount of cash to be
paid in lieu of the issuance of fractional shares in accordance with the
provisions of Section 14 hereof or in lieu of the issuance of Common Shares
in accordance with the provisions of Section 11(a)(iii) hereof, (vi) when
appropriate, after receipt, deliver such cash to or upon the order of the
registered holder of such Right Certificate, and (vii) when appropriate,
deliver any due xxxx or other instrument provided to the Rights Agent by
the Company for delivery to the registered holder of such Right Certificate
as provided by Section 11(1) hereof.
(c) In case the registered holder of any Right Certificate shall
exercise less than all the Rights evidenced thereby, the Company shall
prepare, execute and deliver a new Right Certificate evidencing Rights
equivalent to the Rights remaining unexercised and the Rights Agent shall
countersign and deliver such new Right Certificate to the
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registered holder of such Right Certificate or to his duly authorized
assigns, subject to the provisions of Section 14 hereof.
(d) Notwithstanding anything in this Agreement to the contrary, from
and after the later of the Distribution Date and the first occurrence of a
Triggering Event, any Rights beneficially owned by (i) an Acquiring Person
or an Associate or Affiliate of an Acquiring Person, (ii) a transferee of
an Acquiring Person (or of any such Associate or Affiliate) who becomes a
transferee after the Acquiring Person becomes such, or (iii) a transferee
of an Acquiring Person (or of any such Associate or Affiliate) who becomes
a transferee prior to or concurrently with the Acquiring Person becoming
such and receives such rights pursuant to either (A) a transfer (whether or
not for consideration) from the Acquiring Person to holders of equity
interests in such Acquiring Person or to any Person with whom the Acquiring
Person has any continuing agreement, arrangement or understanding regarding
the transfer of Rights, or (B) a transfer that the Board of Directors of
the Company has determined is part of a plan, arrangement or understanding
that has as a primary purpose or effect the avoidance of this Section 7(d),
shall become null and void without any further action, no holder of such
Rights shall have any rights whatsoever with respect to such Rights,
whether under any provision of this Agreement or otherwise, and any Right
Certificate delivered to the Rights Agent for transfer to an Acquiring
Person or any Affiliate or Associate thereof shall be cancelled. The
Company shall use all reasonable efforts to ensure that the provisions of
this Section 7(d) 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.
(e) 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 any purported transfer, split up, combination or
exchange of any Right Certificate pursuant to Section 6 hereof or exercise
of a Right Certificate as set forth in this Section 7 unless the registered
holder of such Right Certificate shall have (i) completed and signed the
certificate following the form of assignment or form of election to
purchase, as applicable, set forth on the reverse side of the Right
Certificate surrendered for such transfer, split up, combination, exchange
or exercise, and (ii) provided such additional evidence of the identity of
the Beneficial Owner (or former Beneficial Owner) or Affiliates or
Associates thereof as the Company shall have reasonably requested.
Section 8. Cancellation and Destruction of Right Certificates. All
Right Certificates surrendered for the purpose of exercise, transfer, split
up, combination or exchange shall, if surrendered to the Company or to any
of its stock transfer 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 Right Certificates shall be issued in lieu
thereof except as expressly permitted by this Agreement. The Company shall
deliver to the Rights Agent for cancellation and retirement, and the Rights
Agent shall so cancel and retire, any other Right Certificate purchased or
acquired by the Company otherwise than upon the exercise thereof. The
Rights Agent shall deliver all cancelled Right Certificates to the Company,
or shall, at the written request of the Company, destroy such
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cancelled Right Certificates, and in such case shall deliver a certificate
of destruction thereof to the Company.
Section 9. Company Covenants Concerning Securities and Rights. The
Company covenants and agrees that:
(a) So long as the Common Shares issuable upon the exercise of the
Rights may be listed on a national securities exchange, it shall endeavor
to cause, from and after such time as the Rights become exercisable, all
securities reserved for issuance upon the exercise of Rights to be listed
on such exchange upon official notice of issuance.
(b) It shall take all such action as may be necessary to ensure that
all Common Shares and/or other securities delivered upon exercise of
Rights, at the time of delivery of the certificates for such securities
shall be (subject to payment of the Purchase Price) duly and validly
authorized and issued, fully paid and nonassessable securities.
(c) It shall pay when due and payable any and all federal and state
transfer taxes and charges that may be payable in respect of the issuance
or delivery of the Right Certificates and of any certificates representing
securities issued upon the exercise of Rights; provided, however, that the
Company shall not be required to pay any transfer tax or charge which may
be payable in respect of any transfer or delivery of Right Certificates to
a person other than, or the issuance or delivery of certificates
representing securities issued upon the exercise of Rights in a name other
than that of, the registered holder of the Right Certificate evidencing
Rights surrendered for exercise, or to issue or deliver any certificates
representing securities issued upon the exercise of any Rights until any
such tax or charge shall have been paid (any such tax or charge being
payable by the holder of such Right Certificate at the time of surrender)
or until it has been established to the Company's reasonable satisfaction
that no such tax is due.
(d) It shall use its best efforts (i) to file on an appropriate form,
as soon as practicable following the later of the first occurrence of a
Triggering Event or the Distribution Date, a registration statement under
the Securities Act with respect to the securities issuable upon exercise of
the Rights, (ii) to cause such registration statement to become effective
as soon as practicable after such filing, and (iii) to cause such
registration statement to remain effective (with a prospectus at all times
meeting the requirements of the Act) until the earlier of (A) the date as
of which the Rights are no longer exercisable for such securities and (B)
the Expiration Date. The Company shall also take such action as may be
appropriate under, or to ensure compliance with, the securities or "blue
sky" laws of the various states in connection with the exercisability of
the Rights. The Company may temporarily suspend, for a period of time after
the date set forth in clause (i) of the first sentence of this Section
9(d), the exercisability of the Rights in order to prepare and file such
registration statement and to permit it to become effective. Upon any such
suspension, the Company shall issue a public announcement stating that the
exercisability of the Rights has been temporarily suspended, as well as a
public announcement at such time as the suspension is no longer in effect.
In addition, if the Company shall determine that a registration statement
should be filed under the
11
Securities Act or any state securities laws following the Distribution
Date, the Company may temporarily suspend the exercisability of the Rights
in each relevant jurisdiction until such time as a registration statement
has been declared effective and, upon any such suspension, the Company
shall issue a public announcement stating that the exercisability of the
Rights has been temporarily suspended, as well as a public announcement at
such time as the suspension is no longer in effect. Notwithstanding
anything in this Agreement to the contrary, the Rights shall not be
exercisable in any jurisdiction if the requisite registration or
qualification in such jurisdiction shall not have been effected or the
exercise of the Rights shall not be permitted under applicable law.
(e) Notwithstanding anything in this Agreement to the contrary, after
the Distribution Date it shall not, except as permitted by Section 23, 26
or 27 hereof, take (or permit any Subsidiary to take) any action if at the
time such action is taken it is reasonably foreseeable that such action
will eliminate or otherwise diminish the benefits intended to be afforded
by the Rights.
(f) In the event that the Company is obligated to issue other
securities of the Company and/or pay cash pursuant to Section 11, 13 or 14
hereof, it shall make all arrangements necessary so that such other
securities and/or cash are available for distribution by the Rights Agent,
if and when appropriate.
Section 10. Record Date. Each Person in whose name any certificate
representing 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 Right 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 Shares transfer books of the
Company are closed, such Person shall be deemed to have become the record
holder of such securities on, and such certificate shall be dated, the next
succeeding Business Day on which the Common Shares transfer books of the
Company are open. Prior to the exercise of the Rights evidenced thereby,
the holder of a Right Certificate shall not be entitled to any rights of a
shareholder of the Company with respect to securities for which the Rights
shall be exercisable, including, without limitation, the right to vote, to
receive dividends or other distributions or to exercise any preemptive
rights, and shall not be entitled to receive any notice of any proceedings
of the Company, except as provided herein.
Section 11. Adjustment of Purchase Price, Number and Kind of
Securities or Number of Rights. The Purchase Price, the number and kind of
securities issuable upon exercise of each Right and the number of Rights
outstanding are subject to adjustment from time to time as provided in this
Section 11.
(a) (i) In the event that the Company shall at any time after the
date of this Agreement (A) effect 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
12
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), the Purchase Price in effect at the
time of the record date for such dividend or on the effective date of such
subdivision, combination or reclassification, and/or the number and/or kind
of shares of capital stock issuable on such date upon exercise of a Right,
shall be proportionately adjusted so that the holder of any Right exercised
after such time shall be entitled to receive upon payment of the Purchase
Price then in effect the aggregate number and kind of shares of capital
stock which, if such Right had been exercised immediately prior to such
date and at a time when the Common Shares transfer books of the Company
were open, the holder of such Right 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 this Section 11(a)(i) and Section 11(a)(ii) hereof or
Section 13 hereof, the adjustment provided for in this Section 11(a)(i)
shall be in addition to, and shall be made prior to, any adjustment
required pursuant to Section 11(a)(ii) or Section 13 hereof.
(ii) Subject to the provisions of Section 23, 26 or 27 hereof,
in the event that:
(A) any Acquiring Person or any Affiliate or Associate of any
Acquiring Person, at any time after the date of this Agreement,
directly or indirectly, shall (1) merge into the Company or otherwise
combine with the Company and the Company shall be the continuing or
surviving corporation of such merger or combination (other than in a
transaction subject to Section 13 hereof), (2) merge or otherwise
combine with any Subsidiary of the Company, (3) in one or more
transactions (other than in connection with the exercise or exchange
of Rights or the exercise or conversion of securities exercisable for
or convertible into shares of any class of capital stock of the
Company or any of its Subsidiaries) transfer any assets to the Company
or any of its Subsidiaries in exchange (in whole or in part) for
shares of any class of capital stock of the Company or any of its
Subsidiaries or for securities exercisable for or convertible into
shares of any class of capital stock of the Company or any of its
Subsidiaries, or otherwise obtain from the Company or any of its
Subsidiaries, with or without consideration, any additional shares of
any class of capital stock of the Company or any of its Subsidiaries
or securities exercisable for or convertible into shares of any class
of capital stock of the Company or any of its Subsidiaries (other than
as part of a pro rata distribution to all holders of such shares of
any class of capital stock of the Company, or any of its
Subsidiaries), (4) sell, purchase, lease, exchange, mortgage, pledge,
transfer or otherwise dispose (in one or more transactions), to, from,
with or of, as the case may be, the Company or any of its Subsidiaries
(other than in a transaction subject to Section 13 hereof ), assets,
including securities, on terms and conditions less favorable to the
Company than the Company would be able to obtain in arm's-length
negotiation with an unaffiliated third party, (5) receive any
compensation from the Company or any of its Subsidiaries other than
compensation as a director or for full-time employment as a regular
employee, in either case, at rates in accordance with the
13
Company's (or its Subsidiaries') past practices, or (6) receive the
benefit, directly or indirectly (except proportionately as a
shareholder), of any loans, advances, guarantees, pledges or other
financial assistance or any tax credits or other tax advantage
provided by the Company or any of its Subsidiaries; or
(B) during such time as there is an Acquiring Person, there shall
be any reclassification of securities (including any reverse stock
split), or recapitalization of the Company, or any merger or
consolidation of the Company with any of its Subsidiaries or any other
transaction or series of transactions involving the Company or any of
its Subsidiaries (whether or not with or into or otherwise involving
an Acquiring Person), other than a transaction subject to Section 13
hereof, which has the effect, directly or indirectly, of increasing by
more than 1% the proportionate share of the outstanding shares of any
class of equity securities or of securities exercisable for or
convertible into equity securities of the Company or any of its
Subsidiaries of which an Acquiring Person or any Affiliate or
Associate of any Acquiring Person, is the Beneficial Owner; or
(C) any Acquiring Person shall at any time after the date of this
Agreement, become the Beneficial Owner of 20% or more of the Common
Shares then outstanding (other than pursuant to any transaction set
forth in Section 13(a) hereof); provided, however, that a Person shall
not be deemed to have become the Beneficial Owner of 20% or more of
the Common Shares then outstanding for the purposes of this Section
11(a)(ii)(C) solely as a result of a reduction in the number of Common
Shares outstanding or solely as a result of any acquisition that is
approved in advance by the Board of Directors of the Company, in each
case unless and until such time as (1) such Person or any Affiliate or
Associate of such Person shall thereafter become the Beneficial Owner
of any additional Common Shares, other than as a result of a stock
dividend, stock split or similar transaction effected by the Company
in which all holders of Common Shares are treated equally or in a
transaction that is approved in advance by the Board of Directors, or
(2) any other Person who is the Beneficial Owner of any Common Shares
shall thereafter become an Affiliate or Associate of such Person;
then, and in each such case, proper provision shall be made so that
each holder of a Right, except as provided below, shall thereafter
have a right to receive, upon exercise thereof in accordance with the
terms of this Agreement at an exercise price per Right equal to the
product of the then-current Purchase Price multiplied by the number of
Common Shares for which a Right was exercisable immediately prior to
the first occurrence of a Triggering Event, such number of Common
Shares as shall equal the result obtained by (x) multiplying the then-
current Purchase Price by the number of Common Shares for which a
Right was exercisable immediately prior to the first occurrence of a
Triggering Event, and dividing that product by (y) 50% of the current
per share market price of the Common Shares (determined pursuant to
Section 11(d) hereof) on the date of the first occurrence of a
Triggering Event.
(iii) Upon the occurrence of the Distribution Date or a Flip-in
Event, if there shall not be sufficient Common Shares authorized but
unissued or issued but not
14
outstanding to permit the issuance of all the Common Shares issuable in
accordance with the provisions hereof upon the exercise of a Right, the
Board of Directors of the Company shall use its best efforts promptly to
authorize and, subject to the provisions of Section 9(d) hereof, make
available for issuance additional Common Shares or other equity securities
of the Company having equivalent voting rights and an equivalent value (as
determined in good faith by the Board of Directors of the Company) to the
Common Shares (for purposes of this Section 11(a)(iii), "equivalent common
shares"). In the event that equivalent common shares are so authorized,
upon the exercise of a Right in accordance with the provisions of Section 7
hereof, the registered holder shall be entitled to receive (A) Common
Shares, to the extent any are available and (B) a number of equivalent
common shares, which the Board of Directors of the Company shall have
determined in good faith to have a value equivalent to the excess of (x)
the aggregate current per share market value of all the Common Shares
issuable in accordance with subsection (ii) hereof upon the exercise of a
Right (the "Exercise Value") over (y) the aggregate current per share
market value of any Common Shares available for issuance upon the exercise
of such Right; provided, however, that if at any time after 90 calendar
days after the first occurrence of a Flip-in Event, there shall not be
sufficient Common Shares and/or equivalent common shares available for
issuance upon the exercise of a Right, then the Company shall be obligated
to deliver, upon the surrender of such Right and without requiring payment
of the Purchase Price, Common Shares (to the extent available), equivalent
common shares (to the extent available) and then cash (to the extent
permitted by applicable law and any agreements or instruments to which the
Company is a party in effect immediately prior to the first occurrence of
any Flip-in Event), which securities and cash shall have an aggregate value
equal to the excess of (1) the Exercise Value over (2) the product of the
then-current Purchase Price multiplied by the number of Common Shares for
which a Right was exercisable immediately prior to the first occurrence of
a Triggering Event. To the extent that any legal or contractual
restrictions prevent the Company from paying the full amount of cash
payable in accordance with the foregoing sentence, the Company shall pay to
holders of the Rights as to which such payments are being made all amounts
which are not then restricted on a pro rata basis and shall continue to
make payments on a pro rata basis as funds become available until the full
amount due to each such Rights holder has been paid.
(b) In the event that the Company shall fix a record date for the issuance
of rights, options or warrants to all holders of Common Shares entitling them
(for a period expiring within 45 calendar days after such record date) to
subscribe for or purchase Common Shares (or securities having equivalent rights,
privileges and preferences as the Common Shares (for purposes of this Section
11(b), "equivalent common shares")) or securities convertible into Common Shares
or equivalent common shares at a price per Common Share or equivalent common
share (or having a conversion price per share, if a security convertible into
Common Shares or equivalent common shares) less than the current per share
market price of the Common Shares (determined pursuant to Section 11(d) hereof)
on such record date, the Purchase Price to be in effect after such record date
shall be determined by multiplying the Purchase Price in effect immediately
prior to such record date by a fraction, the numerator of which shall be the
number of Common Shares outstanding on such record date plus the number of
Common Shares which the aggregate offering price of the total number of Common
Shares and/or equivalent common shares so to be offered (and/or the aggregate
initial conversion price of the convertible securities so to be offered) would
purchase at such current per share market price and the denominator of which
shall be the number of Common Shares outstanding on such record date plus the
number of additional Common Shares and/or equivalent common
15
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.
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, options or warrants are not so issued, the Purchase
Price shall be adjusted to be the Purchase Price which would then be in effect
if such record date had not been fixed.
(c) In the event that the Company shall fix a record date for the making of
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 or surviving corporation) of evidences of indebtedness, cash (other
than a regular periodic cash dividend), assets, stock (other than a dividend
payable in Common Shares) or subscription rights, options or warrants (excluding
those referred to in Section 11(b) hereof), the Purchase Price to be in effect
after such record date shall be determined by multiplying the Purchase Price in
effect immediately prior to such record date by a fraction, the numerator of
which shall be the current per share market price of the Common Shares (as
determined pursuant to Section 11(d) hereof) on such record date or, if earlier,
the date on which Common Shares begin to trade on an ex-dividend or when-issued
basis for such distribution, 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
evidences of indebtedness, cash, assets or stock so to be distributed or of such
subscription rights, options or warrants applicable to one Common Share, and the
denominator of which shall be such current per share market price of the Common
Shares. Such adjustments shall be made successively whenever such a record date
is fixed; and in the event that such distribution is not so made, the Purchase
Price shall again be adjusted to be the Purchase Price which would then be in
effect if such record date had not been fixed.
(d) For the purpose of any computation hereunder, the "current per share
market price" of Common Shares on any date shall be deemed to be the average of
the daily closing prices per share of such Common Shares for the 30 consecutive
Trading Days immediately prior to such date; provided, however, that in the
event that the current per share market price of the Common Shares is determined
during a period following the announcement by the issuer of such Common Shares
of (i) a dividend or distribution on such Common Shares payable in such Common
Shares or securities convertible into such Common Shares (other than the Rights)
or (ii) any subdivision, combination or reclassification of such Common Shares,
and prior to the expiration of 30 Trading Days after the ex-dividend date for
such dividend or distribution, or the record date for such subdivision,
combination or reclassification, then, and in each such case, the current per
share market price shall be appropriately adjusted to take into account ex-
dividend trading or to reflect the current per share market price per Common
Share equivalent. The
16
closing price for each day shall be the last sale price, regular way, or, in
case no such sale takes place on such day, the average of the closing bid and
asked prices, regular way, in either case as reported in the principal
consolidated transaction reporting system with respect to securities listed or
admitted to trading on the NYSE or, if the Common Shares are not listed or
admitted to trading on the NYSE, as reported in the principal consolidated
transaction reporting system with respect to securities listed on the principal
national securities exchange on which the Common Shares are listed or admitted
to trading or, if the Common Shares are not listed or admitted to trading on any
national securities exchange, the last quoted price or, if not so quoted, the
average of the high bid and low asked prices in the over-the-counter market, as
reported by NASDAQ or such other system then in use, or, if on any such date the
Common Shares are not quoted by any such organization, the average of the
closing bid and asked prices as furnished by a professional market maker making
a market in the Common Shares selected by the Board of Directors of the Company.
If the Common Shares are not publicly held or not so listed or traded, or not
the subject of available bid and asked quotes, "current per share market price"
shall mean the fair value per share as determined in good faith by the Board of
Directors of the Company, whose determination shall be described in a statement
filed with the Rights Agent.
(e) Except as set forth below, no adjustment in the Purchase Price shall be
required unless such adjustment would require an increase or decrease of at
least 1% in such price; provided, however, that any adjustments which by reason
of this Section 11(e) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment. All calculations under this
Section 11 shall be made to the nearest cent or to the nearest one ten
thousandth of a Common Share or other security, as the case may be.
Notwithstanding the first sentence of this Section 11(e), any adjustment
required by this Section 11 shall be made no later than the earlier of (i) three
years from the date of the transaction which requires such adjustment and (ii)
the Expiration Date.
(f) If as a result of an adjustment made pursuant to Section 11(a) hereof,
the holder of any Right thereafter exercised shall become entitled to receive
any securities of the Company other than Common Shares, thereafter the number of
such other securities so receivable upon exercise of any Right shall be subject
to adjustment from time to time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to the Common Shares contained in
this Section 11, and the provisions of Sections 7, 9, 10 and 13 hereof with
respect to the Common Shares shall apply on like terms to any such other
securities.
(g) All Rights originally issued by the Company subsequent to any
adjustment made to the Purchase Price hereunder shall evidence the right to
purchase, at the adjusted Purchase Price, the number of Common Shares issuable
from time to time hereunder upon exercise of the Rights, all subject to further
adjustment as provided herein.
(h) Unless the Company shall have exercised its election as provided in
Section 11(i) hereof, upon each adjustment of the Purchase Price as a result of
the calculations made in Section 11(b) and Section 11(c) hereof made with
respect to a distribution of subscription rights, options or warrants applicable
to Common Shares, 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-
thousandth of a
17
Common Share) obtained by (i) multiplying (x) the number of Common Shares
issuable upon exercise of a Right immediately prior to this adjustment by (y)
the Purchase Price in effect immediately prior to such adjustment of the
Purchase Price, and (ii) dividing the product so obtained by the Purchase Price
in effect immediately after such adjustment of the Purchase Price.
(i) The Company may elect, on or after the date of any adjustment of the
Purchase Price, to adjust the number of Rights in substitution for any
adjustment in the number of Common Shares issuable upon the exercise of a Right.
Each of the Rights outstanding after such adjustment of the number of Rights
shall be exercisable for the number of Common Shares for which a Right was
exercisable immediately prior to such adjustment. Each Right held of record
prior to such adjustment of the number of Rights shall become that number of
Rights (calculated to the nearest one-thousandth) obtained by dividing the
Purchase Price in effect immediately prior to adjustment of the Purchase Price
by the Purchase Price in effect immediately after adjustment of the Purchase
Price. The 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 Right Certificates have been issued, shall be at least 10 calendar days
later than the date of the public announcement. If Right Certificates have been
issued, upon each adjustment of the number of Rights pursuant to this Section
11(i), the Company shall, as promptly as practicable, cause to be distributed to
holders of record of Right Certificates on such record date Right Certificates
evidencing, subject to the provisions of Section 14 hereof, the additional
Rights to which such holders shall be entitled as a result of such adjustment,
or, at the option of the Company, shall cause to be distributed to such holders
of record in substitution and replacement for the Right Certificates held by
such holders prior to the date of adjustment, and upon surrender thereof if
required by the Company, new Right Certificates evidencing all the Rights to
which such holders shall be entitled after such adjustment. Right Certificates
so to be distributed shall be issued, executed and countersigned in the manner
provided for herein (and 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
Right Certificates on the record date specified in the public announcement.
(j) Irrespective of any adjustment or change in the Purchase Price or the
number or kind of securities issuable upon the exercise of the Rights, the Right
Certificates theretofore and thereafter issued may continue to express the
Purchase Price and the number and kind of securities which were expressed in the
initial Right Certificate issued hereunder.
(k) Before taking any action that would cause an adjustment reducing the
Purchase Price below the then par value, if any, of the Common Shares or other
securities 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
Common Shares or such other securities at such adjusted Purchase Price.
(l) In any case in which this Section 11 shall require that an adjustment
in the Purchase Price be made effective as of a record date for a specified
event, the Company may elect to defer until the occurrence of such event the
issuance to the holder of any Right exercised after such record date the number
of Common Shares or other securities of the Company, if any,
18
issuable upon such exercise over and above the number of Common Shares or other
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 Common
Shares or other securities upon the occurrence of the event requiring such
adjustment.
(m) Notwithstanding anything in this Agreement to the contrary, the Company
shall be entitled to make such reductions in the Purchase Price, in addition to
those adjustments expressly required by this Section 11, as and to the extent
that in its good faith judgment the Board of Directors of 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 Common Shares at less than
the current per share market price therefor, (iii) issuance wholly for cash of
Common Shares or securities which by their terms are convertible into or
exchangeable for Common Shares, (iv) stock dividends, or (v) issuance of rights,
options or warrants referred to in this Section 11, hereafter made by the
Company to holders of its Common Shares shall not be taxable to such
shareholders.
Section 12. Certificate of Adjusted Purchase Price or Number of
Securities. Whenever an adjustment is made as provided in Section 11 or
Section 13 hereof, the Company shall promptly (a) prepare a certificate
setting forth such adjustment and a brief statement of the facts accounting
for such adjustment, (b) file with the Rights Agent and with each transfer
agent for the Common Shares a copy of such certificate, and (c) if such
adjustment is made after the Distribution Date, mail a brief summary of
such adjustment to each holder of a Right Certificate in accordance with
Section 25 hereof.
Section 13. Consolidation, Merger or Sale or Transfer of Assets or
Earning Power.
(a) In the event that, following the Share Acquisition Date, directly
or indirectly:
(i) the Company shall consolidate with, or merge with or into,
any other Person and the Company shall not be the continuing or
surviving corporation of such consolidation or merger; or
(ii) any Person shall consolidate with the Company, or merge
with or into the Company and the Company shall be the continuing or
surviving corporation of such merger or consolidation and, in
connection with such merger or consolidation, all or part of the
Common Shares shall be changed into or exchanged for stock or other
securities of any other Person or cash or any other property; or
(iii) the Company shall be a party to any statutory share
exchange with any other Person; or
19
(iv) 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 (including, without limitation,
securities creating any obligation on the part of the Company and/or
any of its Subsidiaries) representing in the aggregate more than 50%
of the assets or earning power of the Company and its Subsidiaries
(taken as a whole) to any Person or Persons; then, and in each such
case, proper provision shall be made so that (A) each holder of a
Right (except as otherwise provided herein) shall thereafter have the
right to receive, upon the exercise thereof in accordance with the
terms of this Agreement at an exercise price per Right equal to the
product of the then-current Purchase Price multiplied by the number of
Common Shares for which a Right was exercisable immediately prior to
the first occurrence of a Triggering Event, such number of validly
authorized and issued, fully paid, nonassessable and freely tradable
Common Shares of the Issuer, free and clear of any liens, encumbrances
and other adverse claims and not subject to any rights of call or
first refusal, as shall be equal to the result obtained by (x)
multiplying the then-current Purchase Price by the number of Common
Shares for which a Right is exercisable immediately prior to the first
occurrence of a Triggering Event and dividing that product by (y) 50%
of the current per share market price of the Common Shares of the
Issuer (determined pursuant to Section 11(d) hereof), on the date of
consummation of such Flip-over Event; (B) the Issuer shall thereafter
be liable for, and shall assume, by virtue of the consummation of such
Flip-over Event, all the obligations and duties of the Company
pursuant to this Agreement; (C) the term "Company" shall thereafter be
deemed to refer to the Issuer; and (D) the Issuer shall take such
steps (including, without limitation, the reservation of a sufficient
number of its Common Shares to permit the exercise of all outstanding
Rights) 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 possible, in relation to its Common Shares
thereafter deliverable upon the exercise of the Rights.
(b) For purposes of this Section 13, "Issuer" shall mean (i) in the
case of any Flip-over Event described in Sections 13(a)(i) or (ii) above,
the Person that is the continuing, surviving, resulting or acquiring Person
(including the Company as the continuing or surviving corporation of a
transaction described in Section 13(a)(ii) above), (ii) in the case of any
Flip-over Event described in Section 13(a)(iii) above, the Person acquiring
the securities of the shareholders of the Company in such exchange and
(iii) in the case of any Flip-over Event described in Section 13(a)(iv)
above, the Person that is the party receiving the greatest portion of the
assets or earning power (including, without limitation, securities creating
any obligation on the part of the Company and/or any of its Subsidiaries)
transferred pursuant to such transaction or transactions; provided,
however, that, in any such case, (A) if (1) no class of equity security of
such Person is, at the time of such merger, consolidation or transaction
and has been continuously over the preceding 12-month period, registered
pursuant to Section 12 of the Exchange Act, and (2) such Person is a
Subsidiary, directly or indirectly, of another Person, a class of equity
security of which is and has been so registered, the term "Issuer" shall
mean such other Person; and (B) in case such Person is a Subsidiary,
directly or indirectly, of more than
20
one Person, a class of equity security of two or more of which are and have
been so registered, the term Issuer shall mean whichever of such Persons is
the issuer of the equity security having the greatest aggregate market
value. Notwithstanding the foregoing, if the Issuer in any of the Flip-over
Events listed above is not a corporation or other legal entity having
outstanding equity securities, then, and in each such case, (x) if the
Issuer is directly or indirectly wholly owned by a corporation or other
legal entity having outstanding equity securities, then all references to
Common Shares of the Issuer shall be deemed to be references to the Common
Shares of the corporation or other legal entity having outstanding equity
securities which ultimately controls the Issuer, and (y) if there is no
such corporation or other legal entity having outstanding equity
securities, (I) proper provision shall be made so that the Issuer shall
create or otherwise make available for purposes of the exercise of the
Rights in accordance with the terms of this Agreement, a kind or kinds of
security or securities having a fair market value at least equal to the
economic value of the Common Shares which each holder of a Right would have
been entitled to receive if the Issuer had been a corporation or other
legal entity having outstanding equity securities; and (II) all other
provisions of this Agreement shall apply to the issuer of such securities
as if such securities were Common Shares.
(c) The Company shall not consummate any Flip-over Event, unless the
Issuer shall have a sufficient number of authorized Common Shares (or other
securities as contemplated in Section 13(b) above) which have not been
issued or reserved for issuance to permit the exercise in full of the
Rights in accordance with this Section 13 and unless prior to such
consummation the Company and the Issuer shall have executed and delivered
to the Rights Agent a supplemental agreement providing for the terms set
forth in subsections (a) and (b) of this Section 13 and further providing
that as promptly as practicable after the consummation of any Flip-over
Event, the Issuer shall:
(i) prepare and file a registration statement under the Securities
Act, with respect to the Rights and the securities issuable upon exercise
of the Rights on an appropriate form, and shall use its best efforts to
cause such registration statement to (A) become effective as soon as
practicable after such filing and (B) remain effective (with a prospectus
at all times meeting the requirements of the Securities Act) until the
Expiration Date;
(ii) take all such action as may be appropriate under, or to ensure
compliance with, the securities or "blue sky" laws of the various states in
connection with the exercisability of the Rights; and
(iii) deliver to holders of the Rights historical financial
statements for the Issuer and each of its Affiliates which comply in all
respects with the requirements for registration on Form 10 (or any
successor form) under the Exchange Act.
(d) The provisions of this Section 13 shall similarly apply to
successive mergers or consolidations or sales or other transfers. In the
event that a Flip-over Event occurs at any time after the occurrence of a
Flip-in Event, the Rights which have not
21
theretofore been exercised shall thereafter become exercisable in the
manner described in Section 13(a) hereof.
Section 14. Fractional Rights and Fractional Securities.
(a) The Company shall not be required to issue fractions of Right or
to distribute Right Certificates which evidence fractional Rights. In lieu
of such fractional Rights, the Company shall pay as promptly as practicable
to the registered holders of the Right Certificates with regard to which
such fractional Rights otherwise would be issuable, an amount in cash equal
to the same fraction of the current market value of a whole Right. For the
purposes of this Section 14(a), the current market value of a whole Right
shall be the closing price of the Rights for the Trading Day immediately
prior to the date on which such fractional Rights otherwise would have been
issuable. The closing price for any day shall be the last sale price,
regular way, or, in case no such sale takes place on such day, the average
of the closing bid and asked prices, regular way, in either case as
reported in the principal consolidated transaction reporting system with
respect to securities listed or admitted to trading on the NYSE or, if the
Rights are not listed or admitted to trading on the NYSE, as reported in
the principal consolidated transaction reporting system with respect to
securities listed on the principal national securities exchange on which
the Rights are listed or admitted to trading or, if the Rights are not
listed or admitted to trading on any national securities exchange, the last
quoted price or, if not so quoted, the average of the high bid and low
asked prices in the over-the-counter market, as reported by NASDAQ or such
other system then in use or, if on any such date the Rights are not quoted
by any such organization, the average of the closing bid and asked prices
as furnished by a professional market maker making a market in the Rights
selected by the Board of Directors of the Company. If on any such date no
such market maker is making a market in the Rights, the fair value of the
Rights on such date as determined in good faith by the Board of Directors
of the Company shall be used.
(b) The Company shall not be required to issue fractions of Common
Shares or other securities issuable upon exercise or exchange of the Rights
or to distribute certificates which evidence any such fractional
securities. In lieu of issuing any such fractional securities, the Company
may pay to any Person to whom or which such fractional securities would
otherwise be issuable an amount in cash equal to the same fraction of the
current market value of one such security. For purposes of this Section
14(b), the current market value of a Common Share or other security
issuable upon the exercise or exchange of Rights shall be the closing price
thereof (as determined in the same manner as set forth for Common Shares in
the second sentence of Section 11(d) hereof) for the Trading Day
immediately prior to the date of such exercise or exchange; provided,
however, that if neither the Common Shares nor any such other securities
are publicly held or listed or admitted to trading on any national
securities exchange, or the subject of available bid and asked quotes, the
current market value of one Common Share or such other security shall be
determined in good faith by the Board of Directors of the Company.
22
Section 15. Rights of Action. All rights of action in respect of
this Agreement, excepting the rights of action given to the Rights Agent
under Section 18 hereof, are vested in the respective registered holders of
the Right Certificates (and, prior to the Distribution Date, the registered
holders of the Common Shares); and any registered holder of any Right
Certificate (or, prior to the Distribution Date, of the Common Shares),
without the consent of the Rights Agent or of the holder of any other Right
Certificate (or, prior to the Distribution Date, of the holder of any
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
Rights evidenced by such Right Certificate or Common Share certificate in
the manner provided in such Right Certificate and in this Agreement.
Without limiting the foregoing or any remedies available to the holders of
Rights, it is specifically acknowledged that the holders of Rights would
not have an adequate remedy at law for any breach of this Agreement and
shall be entitled to specific performance of the obligations under this
Agreement, and injunctive relief against actual or threatened violations of
the obligations 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 Distribution Date, the Rights shall be transferable
only in connection with the transfer of the Common Shares;
(b) After the Distribution Date, the Right Certificates are
transferable only on the registry books of the Rights Agent if surrendered
at the principal office of the Rights Agent designated for such purpose,
duly endorsed or accompanied by a proper instrument of transfer;
(c) The Company and the Rights Agent may deem and treat the person in
whose name the Right Certificate (or, prior to the Distribution Date, the
associated 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 Right Certificate 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;
(d) Such holder expressly waives any right to receive any fractional
Rights and any fractional securities upon exercise or exchange of a Right,
except as otherwise provided in Section 14 hereof; and
(e) 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
23
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, that the Company shall use its best efforts to have any
such order, decree or ruling lifted or otherwise overturned as soon as
possible.
Section 17. Right Certificate Holder Not Deemed a Shareholder. No
holder, as such, of any Right Certificate shall be entitled to vote,
receive dividends or be deemed for any purpose the holder of the Common
Shares or any other securities of the Company which may at any time be
issuable upon the exercise of the Rights represented thereby, nor shall
anything contained herein or in any Right Certificate be construed to
confer upon the holder of any Right Certificate, as such, any of the rights
of a shareholder of the Company or any right to vote for the election of
directors or upon any matter submitted to shareholders at any meeting
thereof, or to give or withhold consent to any corporate action, or to
receive notice of meetings or other actions affecting shareholders (except
as provided in Section 24 hereof), or to receive dividends or subscription
rights, or otherwise, until the Right or Rights evidenced by such Right
Certificate shall have been exercised in accordance with the provisions of
this Agreement or exchanged pursuant to the provisions of Section 27
hereof.
Section 18. Concerning the Rights Agent.
(a) The Company agrees to pay to the Rights Agent reasonable
compensation for all services rendered by it hereunder and, from time to
time, on demand of the Rights Agent, its reasonable expenses and counsel
fees and 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, suit, action, proceeding or expense,
incurred without gross negligence, bad faith or willful misconduct on the
part of the Rights Agent, for anything done or omitted by the Rights Agent
in connection with the acceptance and administration of this Agreement,
including the costs and expenses of defending against any claim of
liability arising therefrom, directly or indirectly.
(b) The Rights Agent shall be protected and shall incur no liability
for or in respect of any action taken, suffered or omitted by it in
connection with its administration of this Agreement in reliance upon any
Right Certificate or certificate evidencing Common Shares or 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.
(a) Any corporation into which the Rights Agent or any successor
Rights Agent may be merged or with which it may be consolidated, or any
corporation resulting
24
from any merger or consolidation to which the Rights Agent or any successor
Rights Agent shall be a party, or any corporation succeeding to the
corporate trust business of the Rights Agent or any successor Rights Agent,
shall be the successor to the Rights Agent under this Agreement without the
execution or filing of any paper or any further act on the part of any of
the parties hereto, provided that such corporation would be eligible for
appointment as a successor Rights Agent under the provisions of Section 21
hereof. In case at the time such successor Rights Agent shall succeed to
the agency created by this Agreement, any of the Right Certificates shall
have been countersigned but not delivered, any such successor Rights Agent
may adopt the countersignature of the predecessor Rights Agent and deliver
such Right Certificates so countersigned; and in case at that time any of
the Right Certificates shall not have been countersigned, any successor
Rights Agent may countersign such Right Certificates either in the name of
the predecessor Rights Agent or in the name of the successor Rights Agent;
and in all such cases such Right Certificates shall have the full force
provided in the Right Certificates and in this Agreement.
(b) In case at any time the name of the Rights Agent shall be changed
and at such time any of the Right Certificates shall have been
countersigned but not delivered, the Rights Agent may adopt the
countersignature under its prior name and deliver Right Certificates so
countersigned; and in case at that time any of the Right Certificates shall
not have been countersigned, the Rights Agent may countersign such Right
Certificates either in its prior name or in its changed name; and in all
such cases such Right Certificates shall have the full force provided in
the Right Certificates and in this Agreement.
Section 20. Duties of Rights Agent. The Rights Agent undertakes the
duties and obligations imposed by this Agreement upon the following terms
and conditions, by all of which the Company and the holders of Right
Certificates, by their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel (who may be legal
counsel for the Company), and the opinion of such counsel shall be full and
complete authorization and protection to the Rights Agent as to any action
taken or omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Agreement
the Rights Agent shall deem it necessary or desirable that any fact or
matter be proved or established by the Company prior to taking or suffering
any action hereunder, such fact or matter (unless other evidence in respect
thereof be herein specifically prescribed) may be deemed to be conclusively
proved and established by a certificate signed by any one of the Chairman
of the Board, the President or any Vice President 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.
25
(c) The Rights Agent shall be liable hereunder only for its own gross
negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of
the statements of fact or recitals contained in this Agreement or in the
Right Certificates (except its countersignature thereof) or be required to
verify the same, but all such statements and recitals are and shall be
deemed to have been made by the Company only.
(e) The Rights Agent shall not be under any responsibility in respect
of the validity of this Agreement or the execution and delivery hereof
(except the due execution and delivery hereof by the Rights Agent) or in
respect of the validity or execution of any Right Certificate (except its
countersignature thereof); nor shall it be responsible for any breach by
the Company of any covenant or condition contained in this Agreement or in
any Right Certificate; nor shall it be responsible for any adjustment
required under the provisions of Section 11 or Section 13 hereof (including
any adjustment which results in Rights becoming void) or responsible for
the manner, method or amount of any such adjustment or the ascertaining of
the existence of facts that would require any such adjustment (except with
respect to the exercise of Rights evidenced by Right Certificates after
actual notice of any such adjustment); nor shall it by any act hereunder be
deemed to make any representation or warranty as to the authorization or
reservation of any shares of stock or other securities to be issued
pursuant to this Agreement or any Right Certificate or as to whether any
shares of stock or other securities will, when issued, be validly
authorized and issued, fully paid and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged and delivered all
such further and other acts, instruments and assurances as may reasonably
be required by the Rights Agent for the carrying out or performing by the
Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from
any one of the Chairman of the Board, the President or any Vice President
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.
26
(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. The Rights
Agent shall not be under any duty or responsibility to insure compliance
with any applicable federal or state securities laws in connection with the
issuance, transfer or exchange of Right Certificates.
(j) If, with respect to any Right Certificate surrendered to the
Rights Agent for exercise, transfer, split up, combination or exchange, the
certificate attached to the form of assignment or form of election to
purchase, as the case may be, has either not been completed or indicates an
affirmative response to clause 1 or 2 thereof, the Rights Agent shall not
take any further action with respect to such requested exercise, transfer,
split up, combination or exchange, without first consulting with the
Company.
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 Right 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 Right
Certificates by first-class mail. If the Rights Agent shall resign or be
removed or shall otherwise become incapable of acting, the Company shall
appoint a successor to the Rights Agent. If the Company shall fail to make
such appointment within a period of 30 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 Right Certificate (who shall, with such notice, submit his
Right Certificate for inspection by the Company), then the registered
holder of any Right Certificate may apply to any court of competent
jurisdiction for the appointment of a new Rights Agent. Any successor
Rights Agent, whether appointed by the Company or by such a court, shall be
a corporation organized and doing business under the laws of the United
States or of the State of Georgia or the State of New York (or of any other
state of the United States so long as such corporation is authorized to do
business as a banking institution in the State of Georgia or the State of
New York), in good standing, having a principal office in the State of
Georgia or the State of New York, which is authorized under such laws to
exercise corporate trust powers and is subject to supervision or
examination by federal or state authority and which has at the time of its
appointment as Rights Agent a combined capital and surplus of at least $50
million. After appointment, the successor Rights Agent shall be vested with
the same powers, rights, duties and responsibilities as if it had been
originally named as Rights Agent without further act or deed; but the
predecessor Rights Agent shall deliver and transfer to the successor Rights
Agent any property at the time held by it hereunder, and execute and
deliver any further assurance, conveyance, act or
27
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 Right
Certificates. Failure to give any notice provided for in this Section 21,
however, or any defect therein, shall not affect the legality or validity
of the resignation or removal of the Rights Agent or the appointment of the
successor Rights Agent, as the case may be.
Section 22. Issuance of New Right Certificates. Notwithstanding any
of the provisions of this Agreement or of the Rights to the contrary, the
Company may, at its option, issue new Right Certificates evidencing Rights
in such form as may be approved by its Board of Directors to reflect any
adjustment or change in the Purchase Price per share and the number or kind
of securities issuable upon exercise of the Rights made in accordance with
the provisions of this Agreement. In addition, in connection with the
issuance or sale by the Company of Common Shares following the Distribution
Date and prior to the Expiration Date, the Company (a) shall, with respect
to Common Shares so issued or sold pursuant to the exercise or conversion
of securities issued prior to the Distribution Date which are exercisable
for, or convertible into, Common Shares, and (b) may, in any other case, if
deemed necessary, appropriate or desirable by the Board of Directors of the
Company, issue Right Certificates representing an equivalent number of
Rights as would have been issued in respect of such Common Shares if they
had been issued or sold prior to the Distribution Date, as appropriately
adjusted as provided herein as if they had been so issued or sold;
provided, however, that (i) no such Right Certificate shall be issued if,
and to the extent that, in its good faith judgment the Board of Directors
of the Company shall have determined that the issuance of such Right
Certificate could have a material adverse tax consequence to the Company or
to the Person to whom or which such Right Certificate otherwise would be
issued, and (ii) no such Right Certificate shall be issued if, and to the
extent that, appropriate adjustment otherwise shall have been made in lieu
of the issuance thereof.
Section 23. Redemption.
(a) The Board of Directors of the Company may, at its option, redeem
all but not less than all of the then-outstanding Rights at the Redemption
Price at any time prior to the Close of Business on the later of (i) the
Distribution Date and (ii) the Share Acquisition Date, or on such later
date as the Board of Directors may designate prior to such time as the
Rights are no longer redeemable hereunder.
(b) Immediately upon the action of the Board of Directors of the
Company ordering the redemption of the Rights, and without any further
action and without any notice, the right to exercise the Rights shall
terminate and the only right thereafter of the holders of Rights shall be
to receive the Redemption Price. Promptly after the action of its Board of
Directors ordering the redemption of the Rights, the Company shall publicly
announce such action, and within 10 calendar days thereafter, the Company
shall give notice of such redemption to the holders of the then-outstanding
Rights by mailing such notice to all such holders at their last addresses
as they appear upon the registry books of
28
the Company; provided, however, that the failure to give, or any defect in,
any such notice shall not affect the validity of the redemption of the
Rights. Any notice which is mailed in the manner herein provided shall be
deemed given, whether or not the holder receives the notice. The notice of
redemption mailed to the holders of Rights shall state the method by which
the payment of the Redemption Price will be made. The Company may, at its
option, pay the Redemption Price in cash, Common Shares (based upon the
current per share market price of the Common Shares (determined pursuant to
Section 11(d) hereof) at the time of redemption) or any other form of
consideration deemed appropriate by the Board of Directors of the Company
(based upon the fair market value of such other consideration, determined
by the Board of Directors of the Company in good faith) or any combination
thereof.
(c) At any time following the Share Acquisition Date, the Board of
Directors of the Company may relinquish the right to redeem the Rights
under this Section 23 by duly adopting a resolution to that effect.
Immediately upon adoption of such resolution, the rights of the Board of
Directors of the Company to redeem the Rights shall terminate without
further action and without any notice. Promptly after adoption of such a
resolution, the Company shall publicly announce such action; provided,
however, that the failure to give, or any defect in, any such notice shall
not affect the validity of the action of the Board of Directors of the
Company.
(d) If, following the occurrence of a Share Acquisition Date and
following the expiration of the right of redemption hereunder, (i) a Person
who is an Acquiring Person shall have transferred or otherwise disposed of
a number of Common Shares in one transaction or series of transactions, not
directly or indirectly involving the Company or any of its Subsidiaries,
which did not result in the occurrence of a Triggering Event such that such
Person is thereafter the Beneficial Owner of 10% or less of the outstanding
Common Shares, and (ii) there are no other Persons immediately following
the occurrence of the event described in clause (i) who are Acquiring
Persons, then the right of redemption hereunder shall be reinstated and
shall thereafter be exercisable subject to the provisions of this Section
23.
Section 24. Notice of Certain Events.
(a) In case, after the Distribution Date, 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 periodic cash dividend), (ii) to offer to the
holders of Common Shares rights, options or warrants to subscribe for or to
purchase any additional Common Shares or shares of stock of any class or
any other securities, rights or options, (iii) to effect any
reclassification of its Common Shares (other than a reclassification
involving only the subdivision of outstanding Common Shares), (iv) to
effect any consolidation or merger into or with, or to effect any sale or
other transfer (or to permit one or more of its Subsidiaries to effect any
sale or other transfer), in one or more transactions, of assets or earning
power (including, without limitation, securities creating any obligation on
the part of the Company and/or any of its Subsidiaries) representing more
than 50% of the assets and
29
earning power of the Company and its Subsidiaries, taken as a whole, to any
other Person or Persons, 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 Right Certificate, in accordance with Section 25
hereof, a notice of such proposed action, which shall specify the record
date for the purposes of such stock dividend, distribution or offering of
rights, options or warrants, or the date on which such reclassification,
consolidation, merger, sale, transfer, liquidation, dissolution, or winding
up is to take place and the date of participation therein by the holders of
the Common Shares, if any such date is to be fixed, and such notice shall
be so given, in the case of any action covered by clause (i) or (ii) above,
at least 10 calendar days prior to the record date for determining holders
of the Common Shares for purposes of such action, and, in the case of any
such other action, at least 10 calendar days prior to the date of the
taking of such proposed action or the date of participation therein by the
holders of the Common Shares, whichever shall be the earlier.
(b) In case any Triggering Event shall occur, then, in any such case,
the Company shall as soon as practicable thereafter give to the Rights
Agent and each holder of a Right Certificate, in accordance with Section 25
hereof, a notice of the occurrence of such event, which shall specify the
event and the consequences of the event to holders of Rights.
Section 25. Notices.
(a) Notices or demands authorized by this Agreement to be given or
made by the Rights Agent or by the holder of any Right Certificate to or on
the Company shall be sufficiently given or made if sent by first-class
mail, postage prepaid, addressed (until another address is filed in writing
with the Rights Agent) as follows:
Certegy Inc.
------------------------------
------------------------------
Attention: Corporate Secretary
(b) Subject to the provisions of Section 21 hereof, any notice or
demand authorized by this Agreement to be given or made by the Company or
by the holder of any Right Certificate to or on the Rights Agent shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed (until another address is filed in writing with the Company) as
follows:
SunTrust Bank
Stock Transfer Trust Department
X.X. Xxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Department Manager
30
(c) Notices or demands authorized by this Agreement to be given or
made by the Company or the Rights Agent to the holder of any Right
Certificate (or, if prior to the Distribution Date, to the holder of any
certificate evidencing Common Shares) shall be sufficiently given or made
if sent by first-class mail, postage prepaid, addressed to such holder at
the address of such holder as shown on the registry books of the Company.
Section 26. Supplements and Amendments. Prior to the Distribution
Date and subject to the last sentence of this Section 26, the Company may
in its sole and absolute discretion and the Rights Agent shall, if the
Company so directs, supplement or amend any provision of this Agreement
without the approval of any holders of Rights or shares of the Company.
From and after the Distribution Date and subject to the last sentence of
this Section 26, the Company may in its sole and absolute discretion and
the Rights Agent shall, if the Company so directs, supplement or amend this
Agreement without the approval of any holders of Right Certificates in
order (i) to cure any ambiguity, (ii) to correct or supplement any
provision contained herein which may be defective or inconsistent with any
other provisions herein, (iii) to shorten or lengthen any time period
hereunder, or (iv) to supplement or amend the provisions hereunder in any
manner which the Company may deem desirable, including, without limitation,
the addition of other events requiring adjustment to the Rights under
Sections 11 or 13 hereof or procedures relating to the redemption of the
Rights, which supplement or amendment shall not, in the good faith
determination of the Board of Directors of the Company, adversely affect
the interests of the holders of Right Certificates (other than an Acquiring
Person or an Affiliate or Associate of an Acquiring Person). Upon the
delivery of a certificate from an officer of the Company that states that
the proposed supplement or amendment is in compliance with the terms of
this Section 26, the Rights Agent shall execute such supplement or
amendment; provided, however, that the failure or refusal of the Rights
Agent to execute such supplement or amendment shall not affect the validity
of any supplement or amendment adopted by the Company, any of which shall
be effective in accordance with the terms thereof. Notwithstanding anything
in this Agreement to the contrary, no supplement or amendment shall be made
at such time as the Rights are not then redeemable which decreases the
stated Redemption Price or the period of time remaining until the Final
Expiration Date or which modifies a time period relating to when the Rights
may be redeemed.
Section 27. Exchange.
(a) The Board of Directors of the Company may, at its option, at any
time after the later of the Distribution Date and the first occurrence of a
Triggering Event, 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 11(a)(ii) 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"). Notwithstanding the foregoing, the Board of
Directors shall not be empowered to effect such exchange at any time after
any Person (other than the Company, any Subsidiary of the Company, any
employee benefit plan of the Company or
31
any such Subsidiary, or any entity holding Common Shares for or pursuant to
the terms of any such plan), together with all Affiliates and Associates of
such Person, becomes the Beneficial Owner of 50% or more of the Common
Shares then outstanding.
(b) Immediately upon the action of the Board of Directors of the
Company ordering the exchange of any Rights pursuant to Section 27(a)
hereof, and without any further action and without any notice, the right to
exercise such Rights shall terminate and the only right with respect to
such Rights thereafter of the 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. Promptly after the action of
the Board of Directors of the Company ordering the exchange of any Rights
pursuant to Section 27(a) hereof, the Company shall publicly announce such
action, and within 10 calendar days thereafter shall give 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; provided,
however, that the failure to give, or any defect in, such notice shall not
affect the validity of such exchange. Any notice which is mailed in the
manner herein provided shall be deemed given, whether or not the holder
receives the notice. Each such notice of exchange shall state the method by
which the exchange of the Common Shares for Rights will be effected and, in
the event of any partial exchange, the number of Rights which will be
exchanged. Any partial exchange shall be effected pro rata based on the
number of Rights (other than Rights which have become void pursuant to the
provisions of Section 11(a)(ii) hereof) held by each holder of Rights.
(c) In any exchange pursuant to this Section 27, the Company, at its
option, may substitute for any Common Share exchangeable for a Right, (i)
equivalent common shares (as such term is used in Section 11(a)(iii)
hereof), (ii) cash, (iii) debt securities of the Company, (iv) other
assets, or (v) any combination of the foregoing, in any event having an
aggregate value which the Board of Directors of the Company shall have
determined in good faith to be equal to the current market value of one
Common Share (determined pursuant to Section 11(d) hereof) on the Trading
Day immediately preceding the date of exchange pursuant to this Section 27.
Section 28. Successors; Certain Covenants. All the covenants and
provisions of this Agreement by or for the benefit of the Company or the
Rights Agent shall bind and inure to the benefit of their respective
successors and assigns hereunder.
Section 29. Benefits of this Agreement. Nothing in this Agreement
shall be construed to give to any Person other than the Company, the Rights
Agent and the registered holders of the Right Certificates (and, prior to
the Distribution Date, the 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 Right Certificates (or prior to the Distribution
Date, the Common Shares).
Section 30. Determinations and Actions by the Board of Directors,
etc. For all purposes of this Agreement, any calculation of the number of
Common Shares or other
32
securities outstanding at any particular time, including for purposes of
determining the particular percentage of such outstanding shares of which
any Person is the Beneficial Owner, shall be made in accordance with the
last sentence of Rule 13d-3(d)(1)(i) of the General Rules and Regulations
under the Exchange Act as in effect on the date of this Agreement. The
Board of Directors of the Company shall have the exclusive power and
authority to administer this Agreement and to exercise all rights and
powers specifically granted to the Board of Directors or to the Company, or
as may be necessary or advisable in the administration of this Agreement,
including, without limitation, the right and power to (i) interpret the
provisions of this Agreement, and (ii) make all determinations deemed
necessary or advisable for the administration of this Agreement (including
a determination to redeem or exchange or not to redeem or exchange the
Rights or to supplement or amend the Agreement). All such actions,
calculations, interpretations and determinations (including, for purposes
of clause (y) below, all omissions with respect to the foregoing) which are
done or made by the Board of Directors in good faith, shall (x) be final,
conclusive and binding on the Company, the Rights Agent, the holders of the
Rights and all other parties, and (y) not subject any member of the Board
to any liability to the holders of the Rights.
Section 31. Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction
or other authority to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions of this Agreement shall
remain in full force and effect and shall in no way be affected, impaired
or invalidated.
Section 32. Governing Law. This Agreement and each Right Certificate
issued hereunder shall be deemed to be a contract made under the internal
substantive laws of the State of Georgia and for all purposes shall be
governed by and construed in accordance with the internal substantive laws
of such State applicable to contracts to be made and performed entirely
within such State.
Section 33. Counterparts. This Agreement may be executed in any
number of counterparts and each of such counterparts shall for all purposes
be deemed to be an original, and all such counterparts shall together
constitute but one and the same instrument.
Section 34. Descriptive Headings. Descriptive headings of the
several Sections of this Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the
provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and their respective corporate seals to be hereunto
affixed and attested, all as of the day and year first above written.
[SEAL]
Attest: CERTEGY INC.
33
By: By:
-------------------------- ------------------------
Secretary Name:
Title:
[SEAL]
Attest: SUNTRUST BANK
By: By:
-------------------------- -------------------------
Name: Name:
Title: Title:
34
Exhibit A
Form of Right Certificate
Rights
Certificate No. R-
NOT EXERCISABLE AFTER ___________, 2011 OR EARLIER IF REDEEMED. THE RIGHTS ARE
SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT $0.01 PER RIGHT ON THE
TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES SPECIFIED
IN THE RIGHTS AGREEMENT, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON OR AN
AFFILIATE OR AN ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN
THE RIGHTS AGREEMENT) MAY BECOME NULL AND VOID.
Right Certificate
Certegy Inc.
This certifies that _______________, or registered assigns, is the
registered owner of the number of Rights set forth above, each of which entitles
the owner thereof, subject to the terms, provisions and conditions of the Rights
Agreement, dated as of ____________, 2001 (the "Rights Agreement"), between
Certegy Inc., a Georgia corporation (the "Company"), and SunTrust Bank, a
Georgia banking corporation (the "Rights Agent"), to purchase from the Company
at any time after the Distribution Date (as such term is defined in the Rights
Agreement) and prior to 5:00 P.M. (Eastern time) on ____________, 2011 at the
principal office or offices of the Rights Agent designated for such purpose, one
fully paid nonassessable share of common stock, par value $.01 per share (the
"Common Shares"), of the Company, at a purchase price of [$____] per Common
Share (the "Purchase Price"), upon presentation and surrender of this Right
Certificate with the Form of Election to Purchase and related Certificate duly
executed. If this Right Certificate shall be exercised in part, the holder shall
be entitled to receive upon surrender hereof another Right Certificate or Right
Certificates for the number of whole Rights not exercised. The number of Rights
evidenced by this Right Certificate (and the number of Common Shares which may
be purchased upon exercise thereof) set forth above, and the Purchase Price set
forth above, are the number and Purchase Price as of ___________, 2001, based on
the Common Shares as constituted at such date.
As provided in the Rights Agreement, the Purchase Price and the number and
kind of securities issuable upon the exercise of the Rights evidenced by this
Right Certificate are subject to adjustment upon the happening of certain
events.
This Right Certificate is subject to all of the terms, provisions and
conditions of the Rights Agreement, which terms, 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 of the Rights Agent,
the Company and the holders of the Right Certificates, which limitations of
rights
35
include the temporary suspension of the exercisability of the Rights under the
circumstances specified in the Rights Agreement. Copies of the Rights Agreement
are on file at the above-mentioned office of the Rights Agent.
Pursuant to the Rights Agreement, from and after the later of the
Distribution Date and the first occurrence of a Flip-in Event (as such term is
defined in the Rights Agreement), (i) any Rights that are or were acquired or
beneficially owned by any Acquiring Person (or any Affiliate or Associate of
such Acquiring Person) shall be void and any holder of such Rights shall
thereafter have no right to exercise such Rights under any provision of the
Rights Agreement, (ii) no Right Certificate shall be issued pursuant to the
Rights Agreement that represents Rights beneficially owned by an Acquiring
Person or any Affiliate or Associate thereof, (iii) no Right Certificate shall
be issued at any time upon the transfer of any Rights to an Acquiring Person or
any Affiliate or Associate thereof or to any nominee of such Acquiring Person or
Affiliate or Associate thereof, and (iv) any Right Certificate delivered to the
Rights Agent for transfer to an Acquiring Person or any Affiliate or Associate
thereof shall be cancelled.
This Right Certificate, with or without other Right Certificates, may be
transferred, split up, combined or exchanged for another Right Certificate or
Right Certificates, entitling the holder to purchase a like number of Common
Shares (or other securities, as the case may be) as the Right Certificate or
Right Certificates surrendered shall have entitled such holder (or former holder
in the case of a transfer) to purchase, upon presentation and surrender hereof
at the principal office of the Rights Agent designated for such purpose, with
the Form of Assignment (if appropriate) and the related Certificate duly
executed.
Subject to the provisions of the Rights Agreement, the Rights evidenced by
this Certificate may be redeemed by the Company at its option at a redemption
price of $0.01 per Right. The Rights Agreement may be supplemented and amended
by the Company, as provided therein.
The Company is not required to issue fractional Common Shares or other
securities issuable upon the exercise of any Right or Rights evidenced hereby.
In lieu of issuing such fractional Common Shares or other securities, the
Company may make a cash payment, as provided in the Rights Agreement.
No holder of this Right Certificate, as such, shall be entitled to vote or
receive dividends or be deemed for any purpose the holder of the Common Shares
or of any other securities of the Company which may at any time be issuable upon
the exercise of the Right or Rights represented hereby, nor shall anything
contained herein or in the Rights Agreement 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 Right Certificate shall have been exercised in accordance with
the provisions of the Rights Agreement.
36
This Right Certificate shall not be valid or obligatory for any purpose
until it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the Company and
its corporate seal. Dated as of __________, 20__.
ATTEST: Certegy Inc.
By: By:
--------------------------- ------------------------
Secretary Title:
[SEAL]
Countersigned:
SunTrust Bank
By:
---------------------------
Authorized Signature
37
Form of Reverse Side of Right Certificate
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Right Certificate)
FOR VALUE RECEIVED,___________________________________________________ hereby
sells, assigns and transfers unto_______________________________________
---------------------------------------------------------------------------
(Please print name and address of transferee)
---------------------------------------------------------------------------
this Right Certificate, together with all right, title and interest therein, and
does hereby irrevocably constitute and appoint ____________________ Attorney, to
transfer the within Right Certificate on the books of the within-named Company,
with full power of substitution.
Dated: ____________, 20__
-------------------------
Signature
Signature Guaranteed:
38
CERTIFICATE
The undersigned hereby certifies by checking the appropriate boxes that:
(1) the Rights evidenced by this Right Certificate [ ] are [ ] are not
being sold, assigned, transferred, split up, combined or exchanged by or on
behalf of a Person who is or was an Acquiring Person or an Affiliate or
Associate of any such Person (as such terms are defined in the Rights
Agreement);
(2) after due inquiry and to the best knowledge of the undersigned, it [ ]
did [ ] did not acquire the Rights evidenced by this Right Certificate from any
Person who is, was or became an Acquiring Person or an Affiliate or Associate of
an Acquiring Person.
Dated: __________, 20__
------------------------------
Signature
39
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to
exercise the Right Certificate)
To Certegy Inc.
The undersigned hereby irrevocably elects to exercise ________ Rights
represented by this Right Certificate to purchase the Common Shares or other
securities issuable upon the exercise of such Rights and requests that
certificates for such securities be issued in the name of:
Please insert social security or other identifying number:
--------------
-------------------------------------------------------------------
(Please print name and address)
If such number of Rights shall not be all the Rights evidenced by this
Right Certificate, a new Right Certificate for the balance remaining of such
Rights shall be registered in the name of and delivered to:
Please insert social security or other identifying number:
-------------
-------------------------------------------------------------------
(Please print name and address)
Optional Election to Exercise without Payment of Cash:
With respect to the exercise of the ________ Rights specified above, the
undersigned hereby elects to exercise such Rights without payment of cash and to
receive a number of Common Shares or other securities having a value (as
determined pursuant to the Rights Agreement) equal to the difference between (i)
the value of the Common Shares or other securities that would have been issuable
upon the exercise thereof upon payment of the cash amount as provided in the
Rights Agreement, and (ii) the amount of such cash payment.
Dated: __________, 20__
-----------------------------
Signature
Signature Guaranteed:
40
CERTIFICATE
The undersigned hereby certifies by checking the appropriate boxes that:
(1) the Rights evidenced by this Right 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 of any such Person (as such terms are
defined pursuant to the Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned,
it [ ] did [ ] did not acquire the Rights evidenced by this Right
Certificate from any Person who is, was or became an Acquiring Person or an
Affiliate or Associate of an Acquiring Person.
Dated: __________, 20__
------------------------
Signature
41
NOTICE
Signatures on the foregoing Form of Assignment and Form of Election to
Purchase and in the related Certificates must correspond to the name as written
upon the face of this Right Certificate in every particular, without alteration
or enlargement or any change whatsoever.
Signatures must be guaranteed by a member firm of a registered national
securities exchange, a member of the National Association of Securities Dealers,
Inc., or a commercial bank or trust company having an office or correspondent in
the United States.
42
