STOCKHOLDERS RIGHTS AGREEMENT
EXECUTION
COPY
This
Stockholders Rights Agreement (this “Rights Agreement”) is
made and entered into as of January 18, 2008, by and between DryShips Inc.,
a
Xxxxxxxx Islands corporation (the “Company”), and
American Stock Transfer & Trust Company, as Rights Agent (the “Rights
Agent”).
WHEREAS,
the Board of Directors of the Company (the “Board”) has (a)
authorized and declared a dividend of one right (the “Right”) for each
share of the Company’s common stock, par value U.S. $.01 per share (the “Common Stock”) held
of record as of the Close of Business (as hereinafter defined) on February
4,
2008 (the “Record
Date”) and (b) has further authorized the issuance of one Right in
respect of each share of Common Stock that shall become outstanding (i) at
any
time between the Record Date and the earliest of the Distribution Date, the
Redemption Date or the Final Expiration Date (as such terms are hereinafter
defined) or (ii) upon the exercise or conversion, prior to the earlier of the
Redemption Date or the Final Expiration Date, of any option or other security
exercisable for or convertible into shares of Common Stock, which option or
other such security is outstanding on the Distribution Date; and
WHEREAS,
each Right represents the right of the holder thereof to purchase one
one-thousandth of a share of Series A Participating Preferred Stock (as such
number may hereafter be adjusted pursuant to the provisions hereof), upon the
terms and subject to the conditions set forth herein, having the rights,
preferences and privileges set forth in the Certificate of Designations of
Series A Participating Preferred Stock, attached hereto as Exhibit
A.
NOW
THEREFORE, in consideration of the premises and the mutual agreements set forth
herein, the parties hereby agrees as follows:
1.
Certain
Definitions.
“Acquiring
Person”
shall mean any Person who or which, together with all Affiliates and
Associates
of such Person, shall be the Beneficial Owner of 15% or more of the shares
of
Common Stock then outstanding, but shall not include the Company, any Subsidiary
of the Company or any employee benefit plan of the Company or of any Subsidiary
of the Company, or any entity holding shares of Common Stock for or pursuant
to
the terms of any such plan. Notwithstanding the foregoing, no Person
shall be deemed to be an Acquiring Person as the result of an acquisition of
shares of Common Stock by the Company which, by reducing the number of shares
outstanding, increases the proportionate number of shares beneficially owned
by
such Person to 15% or more of the shares of Common Stock of the Company then
outstanding; provided, however,
that a
Person who (i) becomes the Beneficial Owner of 15% or more of the shares of
Common Stock of the Company then outstanding by reason of share purchases by
the
Company and (ii) then after such share purchases by the Company, becomes the
Beneficial Owner of any additional shares of Common Stock of the Company (other
than pursuant to a dividend or distribution paid or made by the Company on
the
outstanding shares of Common Stock in shares of Common Stock or pursuant to
a
split or subdivision of the outstanding shares of Common Stock), such Person
shall be deemed to be an Acquiring Person
unless
upon becoming the Beneficial Owner of such additional shares of Common Stock
of
the Company such Person does not beneficially own 15% or more of the shares
of
Common Stock of the Company then outstanding. Notwithstanding the
foregoing: (i) if the Company’s Board of Directors determines in good faith that
a Person who would otherwise be an “Acquiring Person,” as defined herein, has
become such inadvertently (including, without limitation, because (A) such
Person was unaware that it beneficially owned a percentage of the shares of
Common Stock that would otherwise cause such Person to be an “Acquiring Person,”
as defined herein, or (B) such Person was aware of the extent of the shares
of
Common Stock it beneficially owned but had no actual knowledge of the
consequences of such beneficial ownership under this Agreement) and without
any
intention of changing or influencing control of the Company, and if such Person
divested or divests as promptly as practicable a sufficient number of shares
of
Common Stock so that such Person would no longer be an “Acquiring Person,” as
defined herein, then such Person shall not be deemed to be or to have become
an
“Acquiring Person” for any purposes of this Agreement; and (ii) if, as of the
date hereof, any Person is the Beneficial Owner of 15% or more of the shares
of
Common Stock outstanding, such Person shall not be or become an “Acquiring
Person,” as defined herein, unless and until such time as such Person shall
become the Beneficial Owner of additional shares of Common Stock in an amount
equal to 5% of the Company’s outstanding common stock, other than pursuant to a
grant under a Company equity incentive plan, a dividend or distribution paid
or
made by the Company on the outstanding shares of Common Stock in shares of
Common Stock or pursuant to a split or subdivision of the outstanding shares
of
Common Stock, unless, upon becoming the Beneficial Owner of such additional
shares of Common Stock, such Person is not then the Beneficial Owner of 15%
or
more of the shares of Common Stock then outstanding.
“Adjustment
fraction”
shall have the meaning set forth in Section 11(a)(i) hereof.
“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 hereinafter defined, as in
effect on the date of this Agreement.
A
Person shall be deemed the “Beneficial Owner” of
and shall be deemed to “Beneficially Own” any
securities:
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(i)
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which
such Person or any of such Person’s Affiliates or Associates beneficially
owns, directly or indirectly, for purposes of Section 13(d) of the
Exchange Act and Rule 13d-3 thereunder (or any comparable or successor
law
or regulation);
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(ii)
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which
such Person or any of such Person’s Affiliates or Associates has (A) the
right to acquire (whether such right is exercisable immediately or
only
after the passage of time) pursuant to any agreement, arrangement
or
understanding (other than customary agreements with and between
underwriters and selling group members with respect to a bona fide
public
offering of securities), or upon the exercise of conversion rights,
exchange rights, rights (other than the Rights), warrants or options,
or
otherwise; provided,
however,
that a
Person shall not be deemed pursuant to this subsection (ii)(A) to
be
the
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Beneficial
Owner of, or to beneficially own, (1) 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 (2) securities which a Person or any of such Person’s
Affiliates or Associates may be deemed to have the right to acquire pursuant
to
any merger or other acquisition agreement between the Company and such Person
(or one or more of its Affiliates or Associates) if such agreement has been
approved by the Board of Directors of the Company prior to there being an
Acquiring Person; or (B) the right to vote pursuant to any agreement,
arrangement or understanding; provided, however,
that a
Person shall not be deemed the Beneficial Owner of, or to beneficially own,
any
security under this subsection (ii)(B) if the agreement, arrangement or
understanding to vote such security (1) arises solely from a revocable proxy
or
consent given to such Person in response to a public proxy or consent
solicitation made pursuant to, and in accordance with, the applicable rules
and
regulations of the Exchange Act and (2) is not also then reportable on Schedule
13D under the Exchange Act (or any comparable or successor report);
or
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(iii)
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which
are beneficially owned, directly or indirectly, by any other Person
(or
any Affiliate or Associate thereof) with which such Person or any
of such
Person’s Affiliates or Associates has any agreement, arrangement or
understanding, whether or not in writing (other than customary agreements
with and between underwriters and selling group members with respect
to a
bona fide public offering of securities) for the purpose of acquiring,
holding, voting (except to the extent contemplated by the proviso
to
subsection (ii)(B) above) or disposing of any securities of the Company;
provided,
however,
that in no case shall an officer or director of the Company be deemed
(x)
the Beneficial Owner of any securities beneficially owned by another
officer or director of the Company solely by reason of actions undertaken
by such persons in their capacity as officers or directors of the
Company
or (y) the Beneficial Owner of securities held of record by the trustee
of
any employee benefit plan of the Company or any Subsidiary of the
Company
for the benefit of any employee of the Company or any Subsidiary
of the
Company, other than the officer or director, by reason of any influence
that such officer or director may have over the voting of the securities
held in the plan.
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“Business
Day” shall
mean any day other than a Saturday, Sunday or a day on which the New York Stock
Exchange is authorized or obligated by law or executive order to
close.
“Close
of Business” on
any given date shall mean 5:00 P.M., New York time, on such date; provided, however,
that if such
date is not a Business Day it shall mean 5:00 P.M., New York time, on the next
succeeding Business Day.
“Common
Stock” shall
have the meaning set forth in the preamble. Common Stock when used
with reference to any Person other than the Company shall mean the capital
stock
(or equity interest) with the greatest voting power of such other Person or,
if
such other Person is a Subsidiary of another Person, the Person or Persons
which
ultimately control such first-mentioned Person.
“Common
Stock
Equivalents” shall have the meaning set forth in Section 11(a)(iii)
hereof.
“Company”
shall
have
the meaning set forth in the preamble, subject to the terms of Section
13(a)(iii)(c) hereof.
“Current
Per Share Market
Price” of any security (a “Security” for purposes of this definition),
for all computations other than those made pursuant to Section 11(a)(iii)
hereof, shall mean the average of the daily closing prices per share of such
Security for the thirty (30) consecutive Trading Days immediately prior to
such
date, and for purposes of computations made pursuant to Section 11(a)(iii)
hereof, the Current Per Share Market Price of any Security on any date shall
be
deemed to be the average of the daily closing prices per share of such Security
for the ten (10) consecutive Trading Days immediately prior to such date; provided, however,
that in the
event that the Current Per Share Market Price of the Security is determined
during a period following the announcement by the issuer of such Security of
(i)
a dividend or distribution on such Security payable in shares of such Security
or securities convertible into such shares or (ii) any subdivision, combination
or reclassification of such Security, and prior to the expiration of the
applicable thirty (30) Trading Day or ten (10) Trading Day period, after the
ex-dividend date for such dividend or distribution, or the record date for
such
subdivision, combination or reclassification, then, and in each such case,
the
Current Per Share Market Price shall be appropriately adjusted to reflect the
current market price per share equivalent of such Security. The
closing price for each day shall be the last sale price, regular way, or, in
case no such sale takes place on such day, the average of the closing bid and
asked prices, regular way, in either case as reported in the principal
consolidated transaction reporting system with respect to securities listed
or
admitted to trading on the New York Stock Exchange or, if the Security is not
listed or admitted to trading on the New York Stock Exchange, as reported in
the
principal consolidated transaction reporting system with respect to securities
listed on the principal national securities exchange on which the Security
is
listed or admitted to trading or, if the Security is not listed or admitted
to
trading on any national securities exchange, the last sale price or, if such
last sale price is not reported, 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 Security is not quoted by any
such organization, the average of the closing bid and asked prices as furnished
by a professional market maker making a market in the Security selected by
the
Board of Directors of the Company. If on any such date no market
maker is making a market in the Security, the fair value of such shares on
such
date as determined in good faith by the Board of Directors of the Company shall
be used. If the Preferred Shares are not publicly traded, the Current
Per Share Market Price of the Preferred Shares shall be conclusively
deemed to be
the
Current Per Share Market Price of the shares of Common Stock as determined
pursuant to this definition, as appropriately adjusted to reflect any stock
split, stock dividend or similar transaction occurring after the date hereof,
multiplied by 1000. If the Security is not publicly held or so listed
or traded, 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
and
shall be conclusive for all purposes.
“Current
Value” shall
have the meaning set forth in Section 11(a)(iii) hereof.
“Distribution
Date”
shall mean the earlier of (i) the Close of Business on the tenth day
after the
“Shares Acquisition Date” as hereinafter defined (or, if the tenth day after the
Shares Acquisition Date occurs before the Record Date, the Close of Business
on
the Record Date) or (ii) the Close of Business on the tenth Business Day (or
such later date as may be determined by action of the Company’s Board of
Directors) after the date that a tender or exchange offer by any Person (other
than the Company, any Subsidiary of the Company, any employee benefit plan
of
the Company or of any Subsidiary of the Company, or any Person or entity
organized, appointed or established by the Company for or pursuant to the terms
of any such plan) is first published or sent or given within the meaning of
Rule
14d-2(a) of the General Rules and Regulations under the Exchange Act, if,
assuming the successful consummation thereof, such Person would be an Acquiring
Person.
“Equivalent
Shares”
shall mean Preferred Shares and any other class or series of capital
stock of
the Company which is entitled to the same rights, privileges and preferences
as
the Preferred Shares.
“Exchange
Act” shall
mean the Securities Exchange Act of 1934, as amended.
“Exchange
Ratio” shall
have the meaning set forth in Section 24(a) hereof.
“Exercise
Price” shall
have the meaning set forth in Section 4(a) hereof.
“Expiration
Date”
shall mean the earliest to occur of: (i) the Close of Business on the
Final
Expiration Date, (ii) the Redemption Date, or (iii) the time at which the Board
of Directors orders the exchange of the Rights as provided in Section 24
hereof.
“Final
Expiration
Date” shall mean February 4, 2018.
“Nasdaq”
shall
mean
the National Association of Securities Dealers, Inc. Automated Quotations
System.
“Person”
shall
mean
any individual, firm, corporation or other entity, and shall include any
successor (by merger or otherwise) of such entity.
“Post-event
Transferee” shall have the meaning set forth in Section 7(e)
hereof.
“Preferred
Shares”
shall mean shares of Series A Participating Preferred Stock, U.S. $0.01
par
value, of the Company.
“Pre-event
Transferee”
shall have the meaning set forth in Section 7(e) hereof.
“Principal
Party”
shall have the meaning set forth in Section 13(b) hereof.
“Record
Date” shall
have the meaning set forth in the recitals at the beginning of this Rights
Agreement.
“Redemption
Date”
shall have the meaning set forth in Section 23(a) hereof.
“Redemption
Price”
shall have the meaning set forth in Section 23(a) hereof.
“Rights
Agent” shall
mean American Stock Transfer & Trust Company, or its successor or
replacement as provided in Sections 19 and 21 hereof.
“Rights
Certificate”
shall mean a certificate substantially in the form attached hereto as
Exhibit
B.
“Section
11(a)(ii) Trigger
Date” shall have the meaning set forth in Section 11(a)(iii)
hereof.
“Section
13 Event”
shall mean any event described in clause (i), (ii) or (iii) of Section
13(a)
hereof.
“Securities
Act” shall
mean the Securities Act of 1933, as amended.
“Shares
Acquisition
Date” shall mean the first date of public announcement (which, for
purposes of this definition, shall include, without limitation, a report filed
pursuant to Section 13(d) under the Exchange Act) by the Company or an Acquiring
Person that an Acquiring Person has become such; provided that, if such Person
is determined not to have become an Acquiring Person as defined herein, then
no
Shares Acquisition Date shall be deemed to have occurred.
“Spread”
shall
have
the meaning set forth in Section 11(a)(iii) hereof.
“Subsidiary”
of
any
Person shall mean any corporation or other entity of which an amount of voting
securities sufficient to elect a majority of the directors or Persons having
similar authority of such corporation or other entity is beneficially owned,
directly or indirectly, by such Person, or any corporation or other entity
otherwise controlled by such Person.
“Substitution
Period”
shall have the meaning set forth in Section 11(a)(iii) hereof.
“Summary
of Rights”
shall mean a summary of this Agreement substantially in the form attached
hereto
as Exhibit
C.
“Total
Exercise Price”
shall have the meaning set forth in Section 4(a) hereof.
“Trading
Day” shall
mean a day on which the principal national securities exchange on which a
referenced security is listed or admitted to trading is open for thetransaction
of business or, if a referenced security is not listed or admitted to trading
on
any national securities exchange, a Business Day.
A
“Triggering
Event” shall be deemed to have occurred upon any Person becoming an
Acquiring Person.
2. Appointment
of Rights
Agent. The Company hereby appoints the Rights Agent to act as
agent for the Company and the holders of the Rights (who, in accordance with
Section 3 hereof, shall prior to the Distribution Date also be the holders
of
the shares of Common Stock) in accordance with the terms and conditions hereof,
and the Rights Agent hereby accepts such appointment. The Company may
from time to time appoint such co-Rights Agents as it may deem necessary or
desirable, upon ten (10) days’ prior written notice to the Rights
Agent. The Rights Agent shall have no duty to supervise, and shall in
no event be liable for, the acts or omissions of any such co-Rights
Agent.
3. Issuance
of Rights
Certificates.
(a)
Until the Distribution Date, (i) the Rights will be evidenced (subject to the
provisions of Sections 3(b) and 3(c) hereof) by the certificates for shares
of
Common Stock registered in the names of the holders thereof (which certificates
shall also be deemed to be Rights Certificates) and not by separate Rights
Certificates and (ii) the right to receive Rights Certificates will be
transferable only in connection with the transfer of shares of Common Stock.
Until the earlier of the Distribution Date or the Expiration Date, the surrender
for transfer of certificates for shares of Common Stock shall also constitute
the surrender for transfer of the Rights associated with the shares of Common
Stock represented thereby. As soon as practicable after the Distribution Date,
the Company will prepare and execute, the Rights Agent will countersign, and
the
Company will send or cause to be sent (and the Rights Agent will, if requested,
send) by first-class, postage-prepaid mail, to each record holder of shares
of
Common Stock as of the Close of Business on the Distribution Date, at the
address of such holder shown on the records of the Company, a Rights Certificate
evidencing one Right for each share of Common Stock so held, subject to
adjustment as provided herein. In the event that an adjustment in the number
of
Rights per share of Common Stock has been made pursuant to Section 11 hereof,
then at the time of distribution of the Rights Certificates, the Company shall
make the necessary and appropriate rounding adjustments (in accordance with
Section 14(a) hereof) so that Rights Certificates representing only whole
numbers of Rights are distributed and cash is paid in lieu of any fractional
Rights. As of the Distribution Date, the Rights will be evidenced solely by
such
Rights Certificates and may be transferred by the transfer of the Rights
Certificates as permitted hereby, separately and apart from any transfer of
shares of Common Stock, and the holders of such Rights Certificates as listed
in
the records of the Company or any transfer agent or registrar for the Rights
shall be the record holders thereof.
(b)
On the Record Date or as soon as practicable thereafter, the Company will send
a
copy of the Summary of Rights by first-class, postage-prepaid mail, to each
record holder of shares of Common Stock as of the Close of Business on the
Record Date, at the address of such holder shown on the records of the Company’s
transfer agent and registrar. With respect to certificates for shares
of Common Stock outstanding as of the Record Date, until the Distribution Date,
the Rights will be evidenced by such certificates registered in the names of
the
holdersthereof
together with the Summary of Rights. Until the Distribution Date (or,
if earlier, the Expiration Date), the surrender for transfer of any certificate
for shares of Common Stock outstanding on the Record Date, with or without
a
copy of the Summary of Rights, shall also constitute the transfer of the Rights
associated with the shares of Common Stock represented thereby.
(c)
Unless the Board of Directors by resolution adopted at or before the time of
the
issuance of any shares of Common Stock specifies to the contrary, Rights shall
be issued in respect of all shares of Common Stock that are issued after the
Record Date but prior to the earlier of the Distribution Date or the Expiration
Date or, in certain circumstances provided in Section 22 hereof, after the
Distribution Date. Certificates representing such shares of Common Stock shall
also be deemed to be certificates for Rights, and shall bear the following
legend:
THIS
CERTIFICATE ALSO EVIDENCES AND ENTITLES THE HOLDER HEREOF TO CERTAIN RIGHTS
AS
SET FORTH IN A STOCKHOLDER RIGHTS AGREEMENT BETWEEN DRYSHIPS INC. AND AMERICAN
STOCK TRANSFER & TRUST COMPANY, AS THE RIGHTS AGENT, DATED AS OF JANUARY 18,
2008, (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 DRYSHIPS INC. UNDER CERTAIN
CIRCUMSTANCES, AS SET FORTH IN THE RIGHTS AGREEMENT, SUCH RIGHTS WILL BE
EVIDENCED BY SEPARATE CERTIFICATES AND WILL NO LONGER BE EVIDENCED BY THIS
CERTIFICATE. DRYSHIPS INC. WILL MAIL TO THE HOLDER OF THIS
CERTIFICATE A COPY OF THE RIGHTS AGREEMENT WITHOUT CHARGE AFTER RECEIPT OF
A
WRITTEN REQUEST THEREFOR. UNDER CERTAIN CIRCUMSTANCES SET FORTH IN
THE RIGHTS AGREEMENT, RIGHTS ISSUED TO, OR HELD BY, ANY PERSON WHO IS, WAS
OR
BECOMES AN ACQUIRING PERSON OR ANY AFFILIATE OR ASSOCIATE THEREOF (AS SUCH
TERMS
ARE DEFINED IN THE RIGHTS AGREEMENT), WHETHER CURRENTLY HELD BY OR ON BEHALF
OF
SUCH PERSON OR BY ANY SUBSEQUENT HOLDER, MAY BECOME NULL AND VOID.
With
respect to such certificates containing the foregoing legend, until the earlier
of (i) the Distribution Date or (ii) the Expiration Date, the Rights associated
with the shares of Common Stock represented by such certificates shall be
evidenced by such certificates alone, and the surrender for transfer of any
such
certificate shall also constitute the transfer of the Rights associated with
the
shares of Common Stock represented thereby.
(d)
In the event that the Company purchases or acquires any shares of Common Stock
after the Record Date but prior to the Distribution Date, any Rights associated
with such shares of Common Stock shall be deemed canceled and retired so that
the Company shall not be entitled to exercise any Rights associated with the
shares of Common Stock which are no longer outstanding.
4. Form
of Rights
Certificates.
(a)
The Rights Certificates (and the forms of election to purchase shares of Common
Stock and of assignment to be printed on the reverse thereof) shall be
substantially in the form of Exhibit B hereto and
may have such marks of identification or designation and such legends, summaries
or endorsements printed thereon as the Company may deem appropriate and as
are
not inconsistent with the provisions of this Agreement, or as may be required
to
comply with any applicable law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange or a national
market system, on which the Rights may from time to time be listed or included,
or to conform to usage. Subject to the provisions of Section
11 and Section 22 hereof, the Rights
Certificates,
whenever distributed, shall be dated as of the Record Date (or in the case
of
Rights issued with respect to shares of Common Stock issued by the Company
after
the Record Date, as of the date of issuance of such shares of Common Stock)
and
on their face shall entitle the holders thereof to purchase such number of
one-
thousandths of a Preferred Share as shall be set forth therein at the price
set
forth therein (such exercise price per one one-thousandth of a Preferred Share
being hereinafter referred to as the “Exercise Price” and
the aggregate Exercise Price of all Preferred Shares issuable upon exercise
of
one Right being hereinafter referred to as the “Total Exercise
Price”), but the number and type of securities purchasable upon the
exercise of each Right and the Exercise Price shall be subject to adjustment
as
provided herein.
(b)
Any Rights Certificate issued pursuant to Section 3(a) or Section 22 hereof
that
represents Rights beneficially owned by: (i) an Acquiring Person or any
Associate or Affiliate of an Acquiring Person, (ii) a transferee of an Acquiring
Person (or of any such Associate or Affiliate) who becomes a transferee after
the Acquiring Person becomes such or (iii) a transferee of an Acquiring Person
(or of any such Associate or Affiliate) who becomes a transferee prior to or
concurrently with the Acquiring Person becoming such and receives such Rights
pursuant to either (A) a transfer (whether or not for consideration) from the
Acquiring Person to holders of equity interests in such Acquiring Person or
to
any Person with whom such Acquiring Person has any continuing agreement,
arrangement or understanding regarding the transferred Rights or (B) a transfer
which the Company’s Board of Directors has determined is part of a plan,
arrangement or understanding which has as a primary purpose or effect avoidance
of Section 7(e) hereof, and any Rights Certificate issued pursuant to Section
6
or Section 11 hereof upon transfer, exchange, replacement or adjustment of
any
other Rights Certificate referred to in this sentence, shall contain (to the
extent feasible) the following legend:
THE
RIGHTS REPRESENTED BY THIS RIGHTS
CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN
ACQUIRING
PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE
DEFINED IN THE RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHTS
CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY BECOME NULL AND VOID IN THE
CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF THE RIGHTS AGREEMENT.
5. Countersignature
and
Registration.
(a)
The Rights Certificates shall be executed on behalf of the Company by its
Chairman of the Board, its Chief Executive Officer, its Chief Financial Officer,
its President or any Vice President, either manually or by facsimile signature,
and by the Secretary or an Assistant Secretary of the Company, either manually
or by facsimile signature, and shall have affixed thereto the Company’s seal (if
any) or a facsimile thereof. The Rights Certificates shall be
manually countersigned by the Rights Agent and shall not be valid for any
purpose unless countersigned. In case any officer of the Company who
shall have signed any of the Rights Certificates shall cease to be such officer
of the Company before countersignature by the Rights Agent and issuance and
delivery by the Company, such Rights Certificates, nevertheless, may be
countersigned by the Rights Agent and issued and delivered by the Company with
the same force and effect as though the person who signed such Rights
Certificates on behalf of the Company had not ceased to be such officer of
the
Company; and any Rights Certificate may be signed on behalf of the Company
by
any person who, at the actual date of the execution of such RightsCertificate,
shall be a proper officer of the Company to sign such Rights Certificate,
although at the date of the execution of this Rights Agreement any such person
was not such an officer.
(b)
Following the Distribution Date, the Rights Agent will keep or cause to be
kept,
at its office designated for such purposes, books for registration and transfer
of the Rights Certificates issued hereunder. Such books shall show the names
and
addresses of the respective holders of the Rights Certificates, the number
of
Rights evidenced on its face by each of the Rights Certificates and the date
of
each of the Rights Certificates.
6. Transfer,
Split Up,
Combination and Exchange of Rights Certificates; Mutilated, Destroyed, Lost
or
Stolen Rights Certificates.
(a)
Subject to the provisions of Sections 7(e), 14 and 24 hereof, at any time after
the Close of Business on the Distribution Date, and at or prior to the Close
of
Business on the Expiration Date, any Rights Certificate or Rights Certificates
may be transferred, split up, combined or exchanged for another Rights
Certificate or Rights Certificates, entitling the registered holder to purchase
a like number of one-thousandths of a Preferred Share (or, following a
Triggering Event, other securities, cash or other assets, as the case may be)
as
the Rights Certificate or Rights Certificates surrendered then entitled such
holder to purchase. Any registered holder desiring to transfer, split up,
combine or exchange any Rights Certificate or Rights Certificates shall make
such request in writing delivered to the Rights Agent, and shall surrender
the
Rights Certificate or Rights Certificates to be transferred, split up, combined
or exchanged at the office of the Rights Agent designated for such purpose.
Neither the Rights Agent nor the Company shall be obligated to take any action
whatsoever with respect to the transfer of any such surrendered Rights
Certificate until the registered holder shall have completed and signed the
certificate contained in the form of assignment on the reverse side of such
Rights Certificate and shall have provided such additional evidence of the
identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates
or
Associates thereof as the Company shall reasonably request. Thereupon the Rights
Agent shall, subject to Sections 7(e), 14 and 24 hereof, countersign and deliver
to the person entitled thereto a Rights Certificate or Rights Certificates,
as
the case may be, as so requested. The Company may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer, split up, combination or exchange of Rights
Certificates.
(b)
Upon receipt by the Company and the Rights Agent of evidence reasonably
satisfactory to them of the loss, theft, destruction or mutilation of a Rights
Certificate, and, in case of loss, theft or destruction, of indemnity or
security reasonably satisfactory to them, and, at the Company’s request,
reimbursement to the Company and the Rights Agent of all reasonable expenses
incidental thereto, and upon surrender to the Rights Agent and cancellation
of
the Rights Certificate if mutilated, the Company will make and deliver a new
Rights Certificate of like tenor to the Rights Agent for delivery to the
registered holder in lieu of the Rights Certificate so lost, stolen, destroyed
or mutilated.
7. Exercise
of Rights; Exercise
Price; Expiration Date of Rights.
(a)
Subject to Sections 7(e), 23(b) and 24(b) hereof, the registered holder of
any
Rights 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 Close of Business on the Expiration Date
by
surrender of the Rights Certificate, with the form of election to purchase
on
the reverse side thereof duly executed, to the Rights Agent at the office of
the
Rights Agent designated for such purpose, together with payment of the Exercise
Price for each one-thousandth of a Preferred Share (or, following a Triggering
Event, other securities, cash or other assets as the case may be) as to which
the Rights are exercised.
(b)
The Exercise Price for each one-thousandth of a Preferred Share issuable
pursuant to the exercise of a Right shall initially be one hundred and thirty
dollars (U.S. $130), shall be subject to adjustment from time to time as
provided in Sections 11 and 13 hereof and shall be payable in lawful money
of
the United States of America in accordance with paragraph (c)
below.
(c)
Upon receipt of a Rights Certificate representing exercisable Rights, with
the
form of election to purchase duly executed, accompanied by payment of the
Exercise Price for the number of one-thousandths of a Preferred Share (or,
following a Triggering Event, other securities, cash or other assets as the
case
may be) to be purchased and an amount equal to any applicable transfer tax
required to be paid by the holder of such Rights Certificate in accordance
with
Section 9(e) hereof, the Rights Agent shall, subject to Section 20(k) hereof,
thereupon promptly (i) (A) requisition from any transfer agent of the Preferred
Shares (or make available, if the Rights Agent is the transfer agent for the
Preferred Shares) a certificate or certificates for the number of
one-thousandths of a Preferred Share (or, following a Triggering Event, other
securities, cash or other assets as the case may be) to be purchased and the
Company hereby irrevocably authorizes its transfer agent to comply with all
such
requests or (B) if the Company shall have elected to deposit the total number
of
one-thousandths of a Preferred Share (or, following a Triggering Event, other
securities, cash or other assets as the case may be) issuable upon exercise
of
the Rights hereunder with a depositary agent, requisition from the depositary
agent depositary receipts representing such number of one-thousandths of a
Preferred Share (or, following a Triggering Event, other securities, cash or
other assets as the case may be) as are to be purchased (in which case
certificates for the Preferred Shares (or, following a Triggering Event, other
securities, cash or other assets as the case may be) represented by such
receipts shall be deposited by the transfer agent with the depositary agent)
and
the Company hereby directs the depositary agent to comply with such request,
(ii) when appropriate, requisition from the Company the amount of cash to be
paid in lieu of issuance of fractional shares in accordance with Section 14
hereof, (iii) after receipt of such certificates or depositary receipts, cause
the same to be delivered to or upon the order of the registered holder of such
Rights Certificate, registered in such name or names as may be designated by
such holder and (iv) when appropriate, after receipt thereof, deliver such
cash
to or upon the order of the registered holder of such Rights Certificate. The
payment of the Exercise Price (as such amount may be reduced (including to
zero)
pursuant to Section 11(a)(iii) hereof) and an amount equal to any applicable
transfer tax required to be paid by the holder of such Rights Certificate in
accordance with Section 9(e) hereof, may be made in cash or by certified bank
check, cashier’s check or bank draft payable to the order of the
Company. In the event that the Company is obligated to issue
securities of the Company other than Preferred Shares, pay cash and/or
distribute other property pursuant to Section 11(a) hereof, the Company will
make all arrangements necessary so that suchother
securities, cash and/or other property are available for distribution by the
Rights Agent, if and when appropriate.
(d)
In case the registered holder of any Rights Certificate shall exercise less
than
all the Rights evidenced thereby, a new Rights Certificate evidencing Rights
equivalent to the Rights remaining unexercised shall be issued by the Rights
Agent to the registered holder of such Rights Certificate or to his or her
duly
authorized assigns, subject to the provisions of Section 14 hereof.
(e)
Notwithstanding anything in this Agreement to the contrary, from and after
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 (a “Post-Event
Transferee”), (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 transferred Rights or (B) a transfer which the Company’s Board of
Directors has determined is part of a plan, arrangement or understanding which
has as a primary purpose or effect the avoidance of this Section 7(e) (a “Pre-Event
Transferee”) or (iv) any subsequent transferee receiving transferred
Rights from a Post-Event Transferee or a Pre-Event Transferee, either directly
or through one or more intermediate transferees, shall become null and void
without any further action and no holder of such Rights shall have any rights
whatsoever with respect to such Rights, whether under any provision of this
Agreement or otherwise. The Company shall use all reasonable efforts
to ensure that the provisions of this Section 7(e) and Section 4(b) hereof
are
complied with, but shall have no liability to any holder of Rights Certificates
or to any other Person as a result of its failure to make any determinations
with respect to an Acquiring Person or any of such Acquiring Person’s
Affiliates, Associates or transferees hereunder.
(f)
Notwithstanding anything in this Agreement to the contrary, neither the Rights
Agent nor the Company shall be obligated to undertake any action with respect
to
a registered holder upon the occurrence of any purported exercise as set forth
in this Section 7 unless such registered holder shall, in addition to having
complied with the requirements of Section 7(a), have (i) completed and signed
the certificate contained in the form of election to purchase set forth on
the
reverse side of the Rights Certificate surrendered for such exercise and (ii)
provided such additional evidence of the identity of the Beneficial Owner (or
former Beneficial Owner) or Affiliates or Associates thereof as the Company
shall reasonably request.
8.
Cancellation and
Destruction of Rights Certificates. All Rights Certificates
surrendered for the purpose of exercise, transfer, split up, combination or
exchange shall, if surrendered to the Company or to any of its agents, be
delivered to the Rights Agent for cancellation or in canceled form, or, if
surrendered to the Rights Agent, shall be canceled by it, and no Rights
Certificates shall be issued in lieu thereof except as expressly permitted
by
any of the provisions of this Agreement. The Company shall deliver to
the Rights Agent for cancellation and retirement, and the Rights Agent shall
so
cancel and retire, any RightsCertificate
purchased or acquired by the Company otherwise than upon the exercise
thereof. The Rights Agent shall deliver all canceled Rights
Certificates to the Company, or shall, at the written request of the Company,
destroy such canceled Rights Certificates, and in such case shall deliver a
certificate of destruction thereof to the Company.
9. Reservation
and Availability
of Preferred Shares.
(a)
The Company covenants and agrees that it will use its best efforts to cause
to
be reserved and kept available out of its authorized and unissued Preferred
Shares not reserved for another purpose (and, following the occurrence of a
Triggering Event, out of its authorized and unissued shares of Common Stock
and/or other securities), the number of Preferred Shares (and, following the
occurrence of the Triggering Event, Common Stock and/or other securities) that
will be sufficient to permit the exercise in full of all outstanding
Rights.
(b)
If the Company shall hereafter list any of its Preferred Shares on a national
securities exchange, then so long as the Preferred Shares (and, following the
occurrence of a Triggering Event, shares of Common Stock and/or other
securities) issuable and deliverable upon exercise of the Rights may be listed
on such exchange, the Company shall use its best efforts to cause, from and
after such time as the Rights become exercisable (but only to the extent that
it
is reasonably likely that the Rights will be exercised), all shares reserved
for
such issuance to be listed on such exchange upon official notice of issuance
upon such exercise.
(c)
The Company shall use its best efforts to (i) file, as soon as practicable
following the earliest date after the first occurrence of a Triggering Event
in
which the consideration to be delivered by the Company upon exercise of the
Rights is described in Section 11(a)(ii) or Section 11(a)(iii) hereof, or as
soon as is required by law following the Distribution Date, as the case may
be,
a registration statement under the Securities Act with respect to the securities
purchasable upon exercise of the Rights on an appropriate form, (ii) cause
such
registration statement to become effective as soon as practicable after such
filing and (iii) cause such registration statement to remain effective (with
a
prospectus at all times meeting the requirements of the Securities Act) until
the earlier of (A) the date as of which the Rights are no longer exercisable
for
such securities and (B) the date of expiration of the Rights. The Company may
temporarily suspend, for a period not to exceed ninety (90) days after the
date
set forth in clause (i) of the first sentence of this Section 9(c), the
exercisability of the Rights in order to prepare and file such registration
statement and permit it to become effective. Upon any such suspension, the
Company shall issue a public announcement and notify the Rights Agent that
the
exercisability of the Rights has been temporarily suspended, as well as a public
announcement and notification to the Rights Agent at such time as the suspension
is no longer in effect. The Company will 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. Notwithstanding any provision of this Agreement to the
contrary, the Rights shall not be exercisable in any jurisdiction, unless the
requisite qualification in such jurisdiction shall have been obtained, or an
exemption therefrom shall be available, and until a registration statement
has
been declared effective.
(d)
The Company covenants and agrees that it will take all such action as may be
necessary to ensure that all Preferred Shares (or other securities of the
Company) deliveredupon
exercise of Rights shall, at the time of delivery of the certificates for such
securities (subject to payment of the Exercise Price), be duly and validly
authorized and issued and fully paid and nonassessable shares.
(e)
The Company further covenants and agrees that it will pay when due and payable
any and all federal and state transfer taxes and charges which may be payable
in
respect of the original issuance or delivery of the Rights Certificates or
of
any Preferred Shares (or other securities of the Company) upon the exercise
of
Rights. The Company shall not, however, be required to pay any transfer tax
which may be payable in respect of any transfer or delivery of Rights
Certificates to a person other than, or the issuance or delivery of certificates
or depositary receipts for the Preferred Shares (or other securities of the
Company) in a name other than that of, the registered holder of the Rights
Certificate evidencing Rights surrendered for exercise or to issue or to deliver
any certificates or depositary receipts for Preferred Shares (or other
securities of the Company) upon the exercise of any Rights until any such tax
shall have been paid (any such tax being payable by the holder of such Rights
Certificate at the time of surrender) or until it has been established to the
Company’s satisfaction that no such tax is due.
10. Record
Date. Each Person in whose name any certificate for a number
of one-thousandths of a Preferred Share (or other securities of the Company)
is
issued upon the exercise of Rights shall for all purposes be deemed to have
become the holder of record of Preferred Shares (or other securities of the
Company) represented thereon, and such certificate shall be dated, the date
upon
which the Rights Certificate evidencing such Rights was duly surrendered and
payment of the Total Exercise Price with respect to which the Rights have been
exercised (and any applicable transfer taxes) was made; provided, however,
that if the
date of such surrender and payment is a date upon which the transfer books
of
the Company are closed, such Person shall be deemed to have become the record
holder of such shares on, and such certificate shall be dated, the next
succeeding Business Day on which the transfer books of the Company are
open. Prior to the exercise of the Rights evidenced thereby, the
holder of a Rights Certificate shall not be entitled to any rights of a holder
of Preferred Shares (or other securities of the Company) 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.
11. Adjustment
of Exercise
Price, Number of Shares or Number of Rights. The Exercise
Price, the number and kind of shares or other property covered by each Right
and
the number of Rights outstanding are subject to adjustment from time to time
as
provided in this Section 11.
(a)
(i) Notwithstanding anything in this Agreement to the contrary, in the event
the
Company shall at any time after the date of this Agreement (A) declare a
dividend on the Preferred Shares payable in Preferred Shares, (B) subdivide
the
outstanding Preferred Shares, (C) combine the outstanding Preferred Shares
(by
reverse stock split or otherwise) into a smaller number of Preferred Shares,
or
(D) issue any shares of its capital stock in a reclassification of the Preferred
Shares (including any such reclassification in connection with a consolidation
or merger in which the Company is the continuing or surviving corporation),
then, in each such event, except as otherwise
provided
in this Section 11 and Section 7(e) hereof: (1) the Exercise Price in effect
at
the time of the record date for such dividend or of the effective date of such
subdivision, combination or reclassification shall be adjusted so that the
Exercise Price thereafter shall equal the result obtained by dividing the
Exercise Price in effect immediately prior to such time by a fraction (the
“Adjustment
Fraction”), the numerator of which shall be the total number of Preferred
Shares (or shares of capital stock issued in such reclassification of the
Preferred Shares) outstanding immediately following such time and the
denominator of which shall be the total number of Preferred Shares outstanding
immediately prior to such time; provided, however,
that in no
event shall the consideration to be paid upon the exercise of one Right be
less
than the aggregate par value of the shares of capital stock of the Company
issuable upon exercise of such Right; and (2) the number of one-thousandths
of a
Preferred Share (or share of such other capital stock) issuable upon the
exercise of each Right shall equal the number of one-thousandths of a Preferred
Share (or share of such other capital stock) as was issuable upon exercise
of a
Right immediately prior to the occurrence of the event described in clauses
(A)-(D) of this Section 11(a)(i), multiplied by the Adjustment Fraction; provided, however,
that, no
such adjustment shall be made pursuant to this Section 11(a)(i) to the extent
that there shall have simultaneously occurred an event described in clause
(A),
(B), (C) or (D) of Section 11(n) with a proportionate adjustment being made
thereunder. Each share of Common Stock that shall become outstanding
after an adjustment has been made pursuant to this Section 11(a)(i) shall have
associated with it the number of Rights, exercisable at the Exercise Price
and
for the number of one-thousandths of a Preferred Share (or shares of such other
capital stock) as one share of Common Stock has associated with it immediately
following the adjustment made pursuant to this Section 11(a)(i).
(ii)
Subject to Section 24 of this Agreement, in the event a Triggering Event shall
have occurred, then promptly following such Triggering Event each holder of
a
Right, except as provided in Section 7(e) hereof, shall thereafter have the
right to receive for each Right, upon exercise thereof in accordance with the
terms of this Agreement and payment of the Exercise Price in effect immediately
prior to the occurrence of the Triggering Event, in lieu of a number of
one-thousandths of a Preferred Share, such number of shares of Common Stock
of
the Company as shall equal the result obtained by multiplying the Exercise
Price
in effect immediately prior to the occurrence of the Triggering Event by the
number of one-thousandths of a Preferred Share for which a Right was exercisable
(or would have been exercisable if the Distribution Date had occurred)
immediately prior to the first occurrence of a Triggering Event, and dividing
that product by 50% of the Current Per Share Market Price for shares of Common
Stock on the date of occurrence of the Triggering Event; provided, however,
that the
Exercise Price and the number of shares of Common Stock of the Company so
receivable upon exercise of a Right shall be subject to further adjustment
as
appropriate in accordance with Section 11(e) hereof to reflect any events
occurring in respect of the shares of Common Stock of the Company after the
occurrence of the Triggering Event.
(iii)
In lieu of issuing shares of Common Stock in accordance with Section 11(a)(ii)
hereof, the Company may, if the Company’s Board of Directors determines that
such action is necessary or appropriate and not contrary to the interest of
holders of Rights and, in the event that the number of shares of Common Stock
which are authorized by the Company’s Certificate of Incorporation but not
outstanding or reserved for issuance for purposes other than upon exercise
of
the Rights are not sufficient to permit the exercise in full of the Rights,
or
if any necessary regulatory approval for such issuance has not been obtained
by
the Company, the Company shall: (A) determine the excess of (1) the value of
the
shares of Common Stock issuable upon the exercise of a Right (the “Current Value”) over
(2) the Exercise Price (such excess, the “Spread”) and (B)
with
respect to each Right, make adequate provision to substitute for such shares
of
Common Stock, upon exercise of the Rights, (1) cash, (2) a reduction in the
Exercise Price, (3) other equity securities of the Company (including, without
limitation, shares or units of shares of any series of preferred stock which
the
Company’s Board of Directors has deemed to have the same value as Common Stock
(such shares or units of shares of preferred stock are herein called “Common Stock
Equivalents”)), except to the extent that the Company has not obtained
any necessary stockholder or regulatory approval for such issuance, (4) debt
securities of the Company, except to the extent that the Company has not
obtained any necessary stockholder or regulatory approval for such issuance,
(5)
other assets or (6) any combination of the foregoing, having an aggregate value
equal to the Current Value, where such aggregate value has been determined
by
the Company’s Board of Directors based upon the advice of a nationally
recognized investment banking firm selected by the Company’s Board of Directors;
provided, however,
if the
Company shall not have made adequate provision to deliver value pursuant to
clause (B) above within thirty (30) days following the later of (x) the first
occurrence of a Triggering Event and (y) the date on which the Company’s right
of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being
referred to herein as the “Section 11(a)(ii)
Trigger
Date”), then the Company shall be obligated to deliver, upon the
surrender for exercise of a Right and without requiring payment of the Exercise
Price, Common Stock (to the extent available), except to the extent that the
Company has not obtained any necessary stockholder or regulatory approval for
such issuance, and then, if necessary, cash, which shares and/or cash have
an
aggregate value equal to the Spread. If the Company’s Board of
Directors shall determine in good faith that it is likely that sufficient
additional Common Stock could be authorized for issuance upon exercise in full
of the Rights or that any necessary regulatory approval for such issuance will
be obtained, the thirty (30) day period set forth above may be extended to
the
extent necessary, but not more than ninety (90) days after the Section 11(a)(ii)
Trigger Date, in order that the Company may seek stockholder approval for the
authorization of such additional shares or take action to obtain such regulatory
approval (such period, as it may be extended, the “Substitution
Period”). To the extent that the Company determines that some
action need be taken pursuant to the first and/or second sentences of this
Section 11(a)(iii), the Company (x) shall provide, subject to Section
7(e) hereof, that such action shall
apply
uniformly to all outstanding Rights and (y) may suspend the exercisability
of
the Rights until the expiration of the Substitution Period in order to seek
any
authorization of additional shares, to take any action to obtain any required
regulatory approval and/or to decide the appropriate form of distribution to
be
made pursuant to such first sentence and to determine the value
thereof. In the event of 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. For purposes of this Section
11(a)(iii), the value of the Common Stock shall be the Current Per Share Market
Price of the Common Stock on the Section 11(a)(ii) Trigger Date and the value
of
any Common Stock Equivalent shall be deemed to have the same value as the Common
Stock on such date.
(b)
In case the Company shall, at any time after the date of this Agreement, fix
a
record date for the issuance of rights, options or warrants to all holders
of
Preferred Shares entitling such holders (for a period expiring within forty-five
(45) calendar days after such record date) to subscribe for or purchase
Preferred Shares or Equivalent Shares or securities convertible into Preferred
Shares or Equivalent Shares at a price per share (or having a conversion price
per share, if a security convertible into Preferred Shares or Equivalent Shares)
less than the then Current Per Share Market Price of the Preferred Shares or
Equivalent Shares on such record date, then, in each such case, the Exercise
Price to be in effect after such record date shall be determined by multiplying
the Exercise Price in effect immediately prior to such record date by a
fraction, the numerator of which shall be the number of Preferred Shares and
Equivalent Shares (if any) outstanding on such record date, plus the number
of
Preferred Shares or Equivalent Shares, as the case may be, which the aggregate
offering price of the total number of Preferred Shares or Equivalent Shares,
as
the case may be, to be offered or issued (and/or the aggregate initial
conversion price of the convertible securities to be offered or issued) would
purchase at such current market price, and the denominator of which shall be
the
number of Preferred Shares and Equivalent Shares (if any) outstanding on such
record date, plus the number of additional Preferred Shares or Equivalent
Shares, as the case may be, to be offered for subscription or purchase (or
into
which the convertible securities so to be offered are initially convertible);
provided, however,
that in no
event shall the consideration to be paid upon the exercise of one Right be
less
than the aggregate par value of the shares of capital stock of the Company
issuable upon exercise of one Right. In case such subscription price
may be paid in a consideration part or all of which shall be in a form other
than cash, the value of such consideration shall be as determined in good faith
by the Company’s Board of Directors, whose determination shall be described in a
statement filed with the Rights Agent and shall be binding on the Rights Agent
and the holders of the Rights. Preferred Shares and Equivalent 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 Exercise Price shall
be
adjusted to be the Exercise Price which would then be in effect if such record
date had not been fixed.
(c)
In case the Company shall, at any time after the date of this Agreement,
fix a
record date for the making of a distribution to all holders of the Preferred
Shares or of any class or series of Equivalent Shares (including any such
distribution made in connection with a consolidation or merger in which the
Company is the continuing or surviving corporation) of evidences of indebtedness
or assets (other than a regular quarterly cash dividend, if any, or a dividend
payable in Preferred Shares) or subscription rights, options or warrants
(excluding those referred to in Section 11(b)), then, in each such case,
the
Exercise Price to be in effect after such record date shall be determined
by
multiplying the Exercise 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 a Preferred Share or an Equivalent Share on such record date, less
the
fair market value per Preferred Share or Equivalent 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) of the portion of the
cash, assets or evidences of indebtedness so to be distributed or of such
subscription rights or warrants applicable to a Preferred Share or Equivalent
Share, as the case may be, and the denominator of which shall be such Current
Per Share Market Price of a Preferred Share or Equivalent Share on such record
date; provided,
however,
that
in no event shall the consideration to be paid upon the exercise of one Right
be
less than the aggregate par value of the shares of capital stock of the Company
issuable upon exercise of one Right. Such adjustments shall be made
successively whenever such a record date is fixed, and in the event that
such
distribution is not so made, the Exercise Price shall be adjusted to be the
Exercise Price which would have been in effect if such record date had not
been
fixed.
(d)
Notwithstanding anything to the contrary, no adjustment in the Exercise Price
shall be required unless such adjustment would require an increase or decrease
of at least 1% in the Exercise Price; provided, however,
that any
adjustments which by reason of this Section 11(d) 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 ten-thousandth of a share of Common Stock
or
other share or one hundred-thousandth of a Preferred Share, as the case may
be. Notwithstanding the first sentence of this Section 11(d), any
adjustment required by this Section 11 shall be made no later than the earlier
of (i) three (3) years from the date of the transaction which requires such
adjustment or (ii) the Expiration Date.
(e)
If as a result of an adjustment made pursuant to Section 11(a) or 13(a) hereof,
the holder of any Right thereafter exercised shall become entitled to receive
any shares of capital stock other than Preferred Shares, thereafter the number
of such other shares so receivable upon exercise of any Right and, if required,
the Exercise Price thereof, 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 Preferred Shares contained in Sections 11(a), 11(b), 11(c),
11(d), 11(g), 11(h), 11(i), 11(j), 11(k) and 11(l), and the provisions of
Sections 7, 9, 10, 13 and 14 with respect to the Preferred Shares shall apply
on
like terms to any such other shares.
(f)
All Rights originally issued by the Company subsequent to any adjustment made
to
the Exercise Price hereunder shall evidence the right to purchase, at the
adjusted Exercise Price, the number of one-thousandths of a Preferred Share
purchasable from time to time hereunder upon exercise of the Rights, all subject
to further adjustment as provided herein.
(g)
Unless the Company shall have exercised its election as provided in Section
11(h), upon each adjustment of the Exercise Price as a result of the
calculations made in Section 11(b) and (c), each Right outstanding immediately
prior to the making of such adjustment shall thereafter evidence the right
to
purchase, at the adjusted Exercise Price, that number of Preferred Shares
(calculated to the nearest one hundred-thousandth of a share) obtained by (i)
multiplying (x) the number of Preferred Shares covered by a Right immediately
prior to this adjustment, by (y) the Exercise Price in effect immediately prior
to such adjustment of the Exercise Price, and (ii) dividing the product so
obtained by the Exercise Price in effect immediately after such adjustment
of
the Exercise Price.
(h)
The Company may elect on or after the date of any adjustment of the Exercise
Price as a result of the calculations made in Section 11(b) or (c) to adjust
the
number of Rights, in substitution for any adjustment in the number of Preferred
Shares purchasable upon the exercise of a Right. Each of the Rights outstanding
after such adjustment of the number of Rights shall be exercisable for the
number of one-thousandths of a Preferred Share for which a Right was exercisable
immediately prior to such adjustment. Each Right held of record prior to such
adjustment of the number of Rights shall become that number of Rights
(calculated to the nearest one hundred-thousandth) obtained by dividing the
Exercise Price in effect immediately prior to adjustment of the Exercise Price
by the Exercise Price in effect immediately after adjustment of the Exercise
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 Exercise Price is adjusted or any day thereafter,
but,
if the Rights Certificates have been issued, shall be at least ten (10) days
later than the date of the public announcement. If Rights Certificates have
been
issued, upon each adjustment of the number of Rights pursuant to this Section
11(h), the Company shall, as promptly as practicable, cause to be distributed
to
holders of record of Rights Certificates on such record date Rights Certificates
evidencing, subject to Section 14 hereof, the additional Rights to which such
holders shall be entitled as a result of such adjustment, or, at the option
of
the Company, shall cause to be distributed to such holders of record in
substitution and replacement for the Rights Certificates held by such holders
prior to the date of adjustment, and upon surrender thereof, if required by
the
Company, new Rights Certificates evidencing all the Rights to which such holders
shall be entitled after such adjustment. Rights Certificates so to be
distributed shall be issued, executed and countersigned in the manner provided
for herein (and may bear, at the option of the Company, the adjusted Exercise
Price) and shall be registered in the names of the holders of record of Rights
Certificates on the record date specified in the public
announcement.
(i)
Irrespective of any adjustment or change in the Exercise Price or the number
of
Preferred Shares issuable upon the exercise of the Rights, the Rights
Certificates theretofore and thereafter issued may continue to express the
Exercise Price per one one-thousandth of a Preferred Share and the number of
one-thousandths of a Preferred Share which were expressed in the initial Rights
Certificates issued hereunder.
(j)
Before taking any action that would cause an adjustment reducing the Exercise
Price below the par or stated value, if any, of the number of one-thousandths
of
a Preferred Share 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 mayvalidly
and legally issue as fully paid and nonassessable shares such number of
one-thousandths of a Preferred Share at such adjusted Exercise
Price.
(k)
In any case in which this Section 11 shall require that an adjustment in the
Exercise Price be made effective as of a record date for a specified event,
the
Company may elect to defer until the occurrence of such event the issuing to
the
holder of any Right exercised after such record date of the number of
one-thousandths of a Preferred Share and other capital stock or securities
of
the Company, if any, issuable upon such exercise over and above the number
of
one-thousandths of a Preferred Share and other capital stock or securities
of
the Company, if any, issuable upon such exercise on the basis of the Exercise
Price in effect prior to such adjustment; provided, however, that the Company
shall deliver to such holder a due xxxx or other appropriate instrument
evidencing such holder’s right to receive such additional shares (fractional or
otherwise) upon the occurrence of the event requiring such
adjustment.
(l)
Notwithstanding anything in this Section 11 to the contrary, prior to the
Distribution Date, the Company shall be entitled to make such reductions in
the
Exercise Price, in addition to those adjustments expressly required by this
Section 11, as and to the extent that it in its sole discretion shall determine
to be advisable in order that any (i) consolidation or subdivision of the
Preferred Shares or Common Stock, (ii) issuance wholly for cash of any Preferred
Shares or Common Stock at less than the current market price, (iii) issuance
wholly for cash of Preferred Shares or Common Stock or securities which by
their
terms are convertible into or exchangeable for Preferred or Common Stock, (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 Preferred
Shares or Common Stock shall not be taxable to such stockholders.
(m)
The Company covenants and agrees that, after the Distribution Date, it will
not,
except as permitted by Sections 23, 24 or 27 hereof, take (or permit to be
taken) any action if at the time such action is taken it is reasonably
foreseeable that such action will diminish substantially or otherwise eliminate
the benefits intended to be afforded by the Rights.
(n)
In the event the Company shall at any time after the date of this Agreement
(A)
declare a dividend on the Common Stock payable in shares of Common Stock, (B)
subdivide the outstanding shares of Common Stock, (C) combine the outstanding
Common Stock (by reverse stock split or otherwise) into a smaller number of
shares of Common Stock, or (D) issue any shares of its capital stock in a
reclassification of the shares of Common Stock (including any such
reclassification in connection with a consolidation or merger in which the
Company is the continuing or surviving corporation), then, in each such event,
except as otherwise provided in this Section 11(a) and Section 7(e) hereof:
(1)
each share of Common Stock (or shares of capital stock issued in such
reclassification of the Common Stock) outstanding immediately following such
time shall have associated with it the number of Rights as were associated
with
one share of Common Stock immediately prior to the occurrence of the event
described in clauses (A)-(D) above; (2) the Exercise Price in effect at the
time
of the record date for such dividend or of the effective date of such
subdivision, combination or reclassification shall be adjusted so that the
Exercise Price thereafter shall equal the result obtained by multiplying the
Exercise Price in effect immediately prior to such time by a fraction, the
numerator of which shall be the total number of shares of Common Stock
outstanding immediately prior to the event described in clauses (A)-(D) above,
and the denominator of which shall be the total number of shares of
Common
Stock outstanding immediately after such event; provided, however,
that in no
event shall the consideration to be paid upon the exercise of one Right be
less
than the aggregate par value of the shares of capital stock of the Company
issuable upon exercise of such Right; and (3) the number of one-thousandths
of a
Preferred Share (or shares of such other capital stock) issuable upon the
exercise of each Right outstanding after such event shall equal the number
of
one- thousandths of a Preferred Share (or shares of such other capital stock)
as
were issuable with respect to one Right immediately prior to such
event. Each share of Common Stock that shall become outstanding after
an adjustment has been made pursuant to this Section 11(n) shall have associated
with it the number of Rights, exercisable at the Exercise Price and for the
number of one-thousandths of a Preferred Share (or shares of such other capital
stock) as one share of Common Stock has associated with it immediately following
the adjustment made pursuant to this Section 11(n). If an event
occurs which would require an adjustment under both this Section 11(n) and
Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(n)
shall be in addition to, and shall be made prior to, any adjustment required
pursuant to Section 11(a)(ii) hereof.
12. Certificate
of Adjusted
Exercise Price or Number of Shares. Whenever an adjustment is
made as provided in Sections 11 and 13 hereof, the Company shall promptly (a)
prepare a certificate setting forth such adjustment and a brief statement of
the
facts accounting for such adjustment, (b) file with the Rights Agent and with
each transfer agent for the Preferred Shares a copy of such certificate and
(c)
mail a brief summary thereof to each holder of a Rights Certificate in
accordance with Section 26 hereof. Notwithstanding the foregoing
sentence, the failure of the Company to make such certification or give such
notice shall not affect the validity of such adjustment or the force or effect
of the requirement for such adjustment. The Rights Agent shall be
fully protected in relying on any such certificate and on any adjustment
contained therein and shall not be deemed to have knowledge of such adjustment
unless and until it shall have received such certificate.
13. Consolidation,
Merger or
Sale or Transfer of Assets or Earning Power.
(a)
In the event that, following a Shares Acquisition Date, directly or
indirectly:
(i)
the Company shall consolidate with, or merge with and into, any other Person
(other than a wholly-owned Subsidiary of the Company in a transaction the
principal purpose of which is to change the state of incorporation of the
Company and which complies with Section 11(m) hereof);
(ii)
any Person shall consolidate with the Company, or merge with and into the
Company and the Company shall be the continuing or surviving corporation of
such
consolidation or merger and, in connection with such merger, all or part of
the
shares of Common Stock shall be changed into or exchanged for stock or other
securities of any other person (or the Company); or
(iii)
the Company shall sell or otherwise transfer (or one or more of its Subsidiaries
shall sell or otherwise transfer), in one or more transactions, assets or
earning power aggregating 50% or more of the assets or earning power of
theCompany
and its Subsidiaries (taken as a whole) to any other Person or Persons (other
than the Company or one or more of its wholly owned Subsidiaries in one or
more
transactions, each of which individually (and together) complies with Section
11(m) hereof),
then,
concurrent with and in each such case:
(a)
each holder of a Right (except as provided in Section 7(e) hereof) shall
thereafter have the right to receive, upon the exercise thereof, at a price
equal to the Total Exercise Price applicable immediately prior to the occurrence
of the Section 13 Event in accordance with the terms of this Agreement, such
number of validly authorized and issued, fully paid, nonassessable and freely
tradeable shares of Common Stock of the Principal Party (as hereinafter
defined), free of any liens, encumbrances, rights of first refusal or other
adverse claims, as shall be equal to the result obtained by dividing such Total
Exercise Price by 50% of the Current Per Share Market Price of the shares of
Common Stock of such Principal Party on the date of consummation of such Section
13 Event, provided, however,
that the
Exercise Price and the number of shares of Common Stock of such Principal Party
so receivable upon exercise of a Right shall be subject to further adjustment
as
appropriate in accordance with Section 11(e) hereof;
(b)
such Principal Party shall thereafter be liable for, and shall assume, by virtue
of such Section 13 Event, all the obligations and duties of the Company pursuant
to this Agreement;
(c)
the term “Company” shall thereafter be deemed to refer to such Principal Party,
it being specifically intended that the provisions of Section 11 hereof shall
apply only to such Principal Party following the first occurrence of a Section
13 Event;
(d)
such Principal Party shall take such steps (including, but not limited to,
the
reservation of a sufficient number of its Common Stock) in connection with
the
consummation of any such transaction as may be necessary to ensure that the
provisions hereof shall thereafter be applicable, as nearly as reasonably may
be, in relation to its shares of Common Stock thereafter deliverable upon the
exercise of the Rights; and
(e)
upon the subsequent occurrence of any consolidation, merger, sale or transfer
of
assets or other extraordinary transaction in respect of such Principal Party,
each holder of a Right shall thereupon be entitled to receive, upon exercise
of
a Right and payment of the Total Exercise Price as provided in this Section
13(a), such cash, shares, rights, warrants and other property which such holder
would have been entitled to receive had such holder, at the time of such
transaction, owned the shares of Common Stock of the Principal Party receivable
upon the exercise of such Right pursuant to this Section 13(a), and such
Principal Party shall take such steps (including, but not limited to,
reservation of shares of stock) as may be necessary to permit the subsequent
exercise of the Rights in accordance with the terms hereof for such cash,
shares, rights, warrants and other property.
(f)
For purposes hereof, the “earning power” of the Company and its Subsidiaries
shall be determined in good faith by the Company’s Board of Directors on the
basis of the operating earnings of each business operated by the Company and
its
Subsidiaries during the three fiscal years preceding the date of such
determination (or, in the case of any business not operated by the Company
or
any Subsidiary during three full fiscal years preceding such date, during the
period such business was operated by the Company or any
Subsidiary).
(b)
For purposes of this Agreement, the term “Principal Party”
shall mean:
(i)
in the case of any transaction described in clause (i) or (ii) of Section 13(a)
hereof: (A) the Person that is the issuer of the securities into which the
shares of Common Stock are converted in such merger or consolidation, or, if
there is more than one such issuer, the issuer the shares of Common Stock of
which have the greatest aggregate market value of shares outstanding, or (B)
if
no securities are so issued, (x) the Person that is the other party to the
merger, if such Person survives said merger, or, if there is more than one
such
Person, the Person the shares of Common Stock of which have the greatest
aggregate market value of shares outstanding or (y) if the Person that is the
other party to the merger does not survive the merger, the Person that does
survive the merger (including the Company if it survives) or (z) the Person
resulting from the consolidation; and
(ii)
in the case of any transaction described in clause (iii) of Section13 (a)
hereof, the Person that is the party receiving the greatest portion of the
assets or earning power transferred pursuant to such transaction or
transactions, or, if more than one Person that is a party to such transaction
or
transactions receives the same portion of the assets or earning power so
transferred and each such portion would, were it not for the other
equal
portions, constitute the greatest portion of the assets or earning power so
transferred, or if the Person receiving the greatest portion of the assets
or
earning power cannot be determined, whichever of such Persons is the issuer
of
shares of Common Stock having the greatest aggregate market value of shares
outstanding; provided, however,
that in any
such case described in the foregoing clause (b)(i) or (b)(ii), if the shares
of
Common Stock of such Person are not at such time or have not been continuously
over the preceding 12-month period registered under Section 12 of the Exchange
Act, then (1) if such Person is a direct or indirect Subsidiary of another
Person the shares of Common Stock of which are and have been so registered,
the
term “Principal Party” shall refer to such other Person, or (2) if such Person
is a Subsidiary, directly or indirectly, of more than one Person, the Common
Stock of which are and have been so registered, the term “Principal Party” shall
refer to whichever of such Persons is the issuer of shares of Common Stock
having the greatest aggregate market value of shares outstanding, or (3) if
such
Person is owned, directly or indirectly, by a joint venture formed by two or
more Persons that are not owned, directly or indirectly by the same Person,
the
rules set forth in clauses (1) and (2) above shall apply to each of the owners
having an interest in the venture as if the Person owned by the joint venture
was a Subsidiary of both or all of such joint venturers, and the Principal
Party
in each such case shall bear the obligations set forth in this Section 13 in
the
same ratio as its interest in such Person bears to the total of such
interests.
(c)
The Company shall not consummate any Section 13 Event unless the Principal
Party
shall have a sufficient number of authorized shares of Common Stock that have
not been issued or reserved for issuance to permit the exercise in full of
the
Rights in accordance with this Section 13 and unless prior thereto the Company
and such issuer shall have executed and delivered to the Rights Agent a
supplemental agreement confirming that such Principal Party shall, upon
consummation of such Section 13 Event, assume this Agreement in accordance
with
Sections 13(a) and 13(b) hereof, that all rights of first refusal or preemptive
rights in respect of the issuance of shares of Common Stock of such Principal
Party upon exercise of outstanding Rights have been waived, that there are
no
rights, warrants, instruments or securities outstanding or any agreements or
arrangements which, as a result of the consummation of such transaction, would
eliminate or substantially diminish the benefits intended to be afforded by
the
Rights and that such transaction shall not result in a default by such Principal
Party under this Agreement, and further providing that, as soon as practicable
after the date of such Section 13 Event, such Principal Party will:
(i)
prepare and file a registration statement under the Securities Act with respect
to the Rights and the securities purchasable upon exercise of the Rights on
an
appropriate form, use its best efforts to cause such registration statement
to
become effective as soon as practicable after such filing and use its best
efforts to cause such registration statement to remain effective (with a
prospectus at all times meeting the requirements of the Securities Act) until
the Expiration Date, and similarly comply with applicable state securities
laws;
(ii)
use its best efforts to list (or continue the listing of) the Rights and the
securities purchasable upon exercise of the Rights on a national securities
exchange or to meet the eligibility requirements for quotation on Nasdaq and
list (or continue the listing of) the Rights and the securities purchasable
upon
exercise of the Rights on Nasdaq; and
(iii)
deliver to holders of the Rights historical financial statements for such
Principal Party which comply in all respects with the requirements for
registration on Form F-1 (or any successor form) under the Exchange
Act.
In
the event that at any time after the occurrence of a Triggering Event some
or
all of the Rights shall not have been exercised at the time of a transaction
described in this Section 13, the Rights which have not theretofore been
exercised shall thereafter be exercisable in the manner described in Section
13(a) (without taking into account any prior adjustment required by Section
11(a)(ii)).
(d)
In case the “Principal Party” for purposes of Section 13(b) hereof has provision
in any of its authorized securities or in its certificate of incorporation
or
by-laws or other instrument governing its corporate affairs, which provision
would have the effect of (i) causing such Principal Party to issue (other than
to holders of Rights pursuant to Section 13 hereof), in connection with, or
as a
consequence of, the consummation of a Section 13 Event, shares of Common Stock
or Equivalent Shares of such Principal Party at less than the then Current
Per
Share Market Price thereof or securities exercisable for, or convertible into,
shares of Common Stock or Equivalent Shares of such Principal Party at less
than
such then Current Per Share Market Price, or (ii) providing for any special
payment, tax or similar provision in connection with the issuance of the shares
of Common Stock of such Principal Party pursuant to the provisions of Section
13
hereof, then, in such event, the Company hereby agrees with each holder of
Rights that it shall not consummate any such transaction unless prior thereto
the Company and such Principal Party shall have executed and delivered to the
Rights Agent a supplemental agreement providing that the provision in question
of such Principal Party shall have been canceled, waived or amended, or that
the
authorized securities shall be redeemed, so that the applicable provision will
have no effect in connection with or as a consequence of, the consummation
of
the proposed transaction.
(e)
The Company covenants and agrees that it shall not, at any time after the
Distribution Date, effect or permit to occur any Section 13 Event, if (i) at
the
time or immediately after such Section 13 Event there are any rights, warrants
or other instruments or securities outstanding or agreements in effect which
would substantially diminish or otherwise eliminate the benefits intended to
be
afforded by the Rights, (ii) prior to, simultaneously with or immediately after
such Section 13 Event, the stockholders of the Person who constitutes, or would
constitute, the “Principal Party” for purposes of Section 13(b) hereof shall
have received a distribution of Rights previously owned by such Person or any
of
its Affiliates or Associates or (iii) the form or nature of organization of
the
Principal Party would preclude or limit the exercisability of the
Rights.
(f)
The provisions of this Section 13 shall similarly apply to successive mergers
or
consolidations or sales or other transfers.
14. Fractional
Rights and
Fractional Shares.
(a)
The Company shall not be required to issue fractions of Rights or to distribute
Rights Certificates which evidence fractional Rights. In lieu of such fractional
Rights, there shall be paid to the registered holders of the Rights Certificates
with regard to which such fractional Rights would otherwise be issuable, an
amount in cash equal to the same fraction of the current market value of a
whole
Right. For the purposes of this Section 14(a), the current market value of
a
whole Right shall be the closing price of the Rights for the Trading Day
immediately prior to the date on which such fractional Rights would have been
otherwise issuable, as determined pursuant to this Agreement.
(b)
The Company shall not be required to issue fractions of Preferred Shares (other
than fractions that are integral multiples of one one-thousandth of a Preferred
Share) upon exercise of the Rights or to distribute certificates which evidence
fractional Preferred Shares (other than fractions that are integral multiples
of
one one-thousandth of a Preferred Share). Interests in fractions of Preferred
Shares in integral multiples of one one-thousandth of a Preferred Share may,
at
the election of the Company, be evidenced by depositary receipts, pursuant
to an
appropriate agreement between the Company and a depositary selected by it;
provided, that such agreement shall provide that the holders of such depositary
receipts shall have all the rights, privileges and preferences to which they
are
entitled as beneficial owners of the Preferred Shares represented by such
depositary receipts. In lieu of fractional Preferred Shares that are not
integral multiples of one one-thousandth of a Preferred Share, the Company
shall
pay to the registered holders of Rights Certificates at the time such Rights
are
exercised as herein provided an amount in cash equal to the same fraction of
the
current market value of a Preferred Share. For purposes of this Section 14(b),
the current market value of a Preferred Share shall be one thousand times the
closing price of a share of Common Stock (as determined pursuant to the terms
hereof) for the Trading Day immediately prior to the date of such
exercise.
(c)
The Company shall not be required to issue fractions of shares of Common Stock
or to distribute certificates which evidence fractional shares of Common Stock
upon the exercise or exchange of Rights. In lieu of such fractional shares
of
Common Stock, the Company shall pay to the registered holders of Rights
Certificates at the time such Rights are exercised as herein provided an amount
in cash equal to the same fraction of the current market value of a share of
Common Stock. For purposes of this Section 14(c), the current market value
of a
share of Common Stock shall be the closing price of a share of Common Stock
(as
determined pursuant to the terms hereof) for the Trading Day immediately prior
to the date of such exercise.
(d)
The holder of a Right by the acceptance of the Right expressly waives his or
her
right to receive any fractional Rights or any fractional shares (other than
fractions that are integral multiples of one one-thousandth of a Preferred
Share) upon exercise of a Right.
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 Rights
Certificates (and, prior to the Distribution Date, the registered holders
of the
shares of Common Stock); and any registered holder of any Rights Certificate
(or, prior to the Distribution Date, of the shares of Common Stock), without
the
consent of the Rights Agent or of the holder of any other Rights
Certificate (or, prior to the Distribution Date, of the shares of Common
Stock),
may, in his or her own behalf and for his or her 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 or her right to exercise the
Rights
evidenced by such Rights Certificate in the manner provided in such Rights
Certificate and in this Agreement. Without limiting the foregoing or
any remedies available to the holders of Rights, it is specifically acknowledged
that the holders of Rights would not have an adequate remedy at law for any
breach of this Agreement and will be entitled to specific performance of
the
obligations under, and injunctive relief against actual or threatened violations
of, the obligations of any Person subject to this Agreement.
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 will be transferable only in
connection with the transfer of the shares of Common Stock;
(b)
after the Distribution Date, the Rights Certificates are transferable only
on
the registry books of the Rights Agent if surrendered at the principal office
or
offices of the Rights Agent designated for such purposes, duly endorsed or
accompanied by a proper instrument of transfer and with the appropriate forms
and certificates fully executed; and
(c)
subject to Sections 6(a) and 7(f) hereof, the Company and the Rights Agent
may
deem and treat the person in whose name the Rights Certificate (or, prior to
the
Distribution Date, the associated Common Stock certificate) is registered as
the
absolute owner thereof and of the Rights evidenced thereby (notwithstanding
any
notations of ownership or writing on the Rights Certificates or the associated
Common Stock 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.
17. Rights
Certificate Holder
Not Deemed a Stockholder. No holder, as such, of any Rights
Certificate shall be entitled to vote, receive dividends or be deemed for any
purpose to be the holder of the Preferred Shares or any other securities of
the
Company which may at any time be issuable on the exercise of the Rights
represented thereby, nor shall anything contained herein or in any Rights
Certificate be construed to confer upon the holder of any Rights Certificate,
as
such, any of the rights of a stockholder of the Company or any right to vote
for
the election of directors or upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate action, or
to
receive notice of meetings or other actions affecting stockholders (except
as
provided in Section 25 hereof), or to receive dividends or subscription rights,
or otherwise, until the Right or Rights evidenced by such Rights Certificate
shall have been exercised in accordance with the provisions hereof.
18. 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 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 in the premises. In no event will the Rights Agent be
liable for special, indirect, incidental or consequential loss or damage
of any
kind whatsoever, even if the Rights Agent has been advised of the possibility
of
such loss or damage.
(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 Rights Certificate or
certificate for the Preferred Shares or shares of Common Stock or for other
securities of the Company, instrument of assignment or transfer, power of
attorney, endorsement, affidavit, letter, notice, direction, consent,
certificate, statement or other paper or document reasonably believed by it
to
be genuine and to be signed, executed and, where necessary, verified or
acknowledged, by the proper Person or Persons, or otherwise upon the advice
of
counsel as set forth in Section 20 hereof.
19. Merger
or Consolidation or
Change of Name of Rights Agent. Any corporation into which the
Rights Agent or any successor Rights Agent may be merged or with which it may
be
consolidated, or any corporation resulting from any merger or consolidation
to
which the Rights Agent or any successor Rights Agent shall be a party, or any
corporation succeeding to the corporate trust business of the Rights Agent
or
any successor Rights Agent, shall be the successor to the Rights Agent under
this Agreement without the execution or filing of any paper or any further
act
on the part of any of the parties hereto; provided, however,
that such
corporation would be eligible for appointment as a successor Rights Agent under
the provisions of Section 21 hereof. In case at the time such
successor Rights Agent shall succeed to the agency created by this Agreement,
any of the Rights Certificates shall have been countersigned but not delivered,
any such successor Rights Agent may adopt the countersignature of the
predecessor Rights Agent and deliver such Rights Certificates so countersigned;
and in case at that time any of the Rights Certificates shall not have been
countersigned, any successor Rights Agent may countersign such Rights
Certificates either in the name of the predecessor Rights Agent or in the name
of the successor Rights Agent; and in all such cases such Rights Certificates
shall have the full force provided in the Rights Certificates and in this
Agreement. In case at any time the name of the Rights Agent shall be
changed and at such time any of the Rights Certificates shall have been
countersigned but not delivered, the Rights Agent may adopt the countersignature
under its prior name and deliver Rights Certificates so countersigned; and
in
case at that time any of the Rights Certificates shall not have been
countersigned, the Rights Agent may countersign such Rights Certificates either
in its prior name or in its changed name; and in all such cases such Rights
Certificates shall have the full force provided in the Rights Certificates
and
in this Agreement.
20. Duties
of Rights
Agent. The Rights Agent undertakes the duties and obligations
imposed by this Agreement upon the following terms and conditions, by all of
which the Company and the holders of Rights Certificates, by their acceptance
thereof, shall be bound:
(a)
The Rights Agent may consult with legal counsel (who may be legal counsel for
the Company), and the written advice or 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 written advice
or opinion.
(b)
Whenever in the performance of its duties under this Agreement the Rights Agent
shall deem it necessary or desirable that any fact or matter (including, without
limitation, the identity of any Acquiring Person and the determination of
Current Per Share Market Price) 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 Chief Executive Officer, the President, any Vice
President, the Chief Financial Officer, the Secretary or any Assistant Secretary
of the Company and delivered to the Rights Agent; and such certificate shall
be
full authorization to the Rights Agent for any action taken or suffered in
good
faith by it under the provisions of this Agreement in reliance upon such
certificate.
(c)
The Rights Agent shall be liable hereunder to the Company and any other Person
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 Rights Certificates
(except its countersignature thereof) or be required to verify the same, but
all
such statements and recitals are and shall be deemed to have been made by the
Company only.
(e)
The Rights Agent shall not be under any responsibility in respect of the
validity of this Agreement or the execution and delivery hereof (except the
due
execution hereof by the Rights Agent) or in respect of the validity or execution
of any Rights Certificate (except its countersignature thereof); nor shall
it be
responsible for any breach by the Company of any covenant or condition contained
in this Agreement or in any Rights Certificate; nor shall it be responsible
for
any change in the exercisability of the Rights or any adjustment in the terms
of
the Rights (including the manner, method or amount thereof) provided for in
Sections 3, 11, 13, 23 or 24, or the ascertaining of the existence of facts
that
would require any such change or adjustment (except with respect to the exercise
of Rights evidenced by Rights Certificates after receipt by the Rights Agent
of
a certificate furnished pursuant to Section 12 describing such change or
adjustment); nor shall it by any act hereunder be deemed to make any
representation or warranty as to the authorization or reservation of any
Preferred Shares to be issued pursuant to this Agreement or any Rights
Certificate or as to whether any Preferred Shares will, when issued, be validly
authorized and issued, fully paid and nonassessable.
(f)
The Company agrees that it will perform, execute, acknowledge and deliver or
cause to be performed, executed, acknowledged and delivered all such further
and
other acts, instruments and assurances as may reasonably be required by the
Rights Agent for the carrying out or performing by the Rights Agent of the
provisions of this Agreement.
(g)
The Rights Agent is hereby authorized and directed to accept instructions
with
respect to the performance of its duties hereunder from any one of the Chairman
of the Board, the Chief Executive Officer, the Chief Financial Officer,
the President, any Vice President, the Secretary or any Assistant Secretary
of
the Company, and to apply to such officers for advice or instructions in
connection with its duties, and it shall not be liable for any action taken
or
suffered by it in good faith in accordance with instructions of any such
officer
or for any delay in acting while waiting for those instructions. Any
application by the Rights Agent for written instructions from the Company
may,
at the option of the Rights Agent, set forth in writing any action proposed
to
be taken or omitted by the Rights Agent under this Rights Agreement and the
date
on and/or after which such action shall be taken or such omission shall be
effective. The Rights Agent shall not be liable for any action taken
by, or omission of, the Rights Agent in accordance with a proposal included
in
any such application on or after the date specified in such application (which
date shall not be less than five (5) Business Days after the date any officer
of
the Company actually receives such application, unless any such officer shall
have consented in writing to an earlier date) unless, prior to taking any
such
action (or the effective date in the case of an omission), the Rights Agent
shall have received written instructions in response to such application
specifying the action to be taken or omitted.
(h)
The Rights Agent and any stockholder, director, officer or employee of the
Rights Agent may buy, sell or deal in any of the Rights or other securities
of
the Company or become pecuniarily interested in any transaction in which the
Company may be interested, or contract with or lend money to the Company or
otherwise act as fully and freely as though it were not Rights Agent under
this
Agreement. Nothing herein shall preclude the Rights Agent from acting in any
other capacity for the Company or for any other legal entity.
(i)
The Rights Agent may execute and exercise any of the rights or powers hereby
vested in it or perform any duty hereunder either itself or by or through its
attorneys or agents, and the Rights Agent shall not be answerable or accountable
for any act, default, neglect or misconduct of any such attorneys or agents
or
for any loss to the Company resulting from any such act, default, neglect or
misconduct, provided reasonable care was exercised in the selection and
continued employment thereof.
(j)
No provision of this Agreement shall require the Rights Agent to expend or
risk
its own funds or otherwise incur any financial liability in the performance
of
any of its duties hereunder or in the exercise of its rights if there shall
be
reasonable grounds for believing that repayment of such funds or adequate
indemnification against such risk or liability is not reasonably assured to
it.
21. Change
of Rights
Agent. The Rights Agent or any successor Rights Agent may
resign and be discharged from its duties under this Agreement upon thirty (30)
days’ written notice mailed to the Company and to each transfer agent of the
Preferred Shares and the Common Stock by registered or certified mail, and
to
the holders of the Rights Certificates by first-class mail. In the
event the transfer agency relationship in effect between the Company and the
Rights Agent terminates, the Rights Agent will be deemed to have resigned
automatically and be discharged from its duties under this Agreement as of
the
effective date of such termination, and the Company shall be responsible for
sending any required notice. The Company may remove the Rights Agent
or any successor Rights Agent upon thirty (30) days’ written notice, mailed to
the Rights Agent or successor Rights Agent, as the case may be, and to each
transfer agent of the Preferred Shares and the Common Stock by registered or
certified
mail,
and to the holders of the Rights Certificates by first-class mail. If
the Rights Agent shall resign or be removed or shall otherwise become incapable
of acting, the Company shall appoint a successor to the Rights
Agent. If the Company shall fail to make such appointment within a
period of thirty (30) days after giving notice of such removal or after
receiving written notice of such resignation or incapacity by the resigning
or
incapacitated Rights Agent or by the holder of a Rights Certificate (who shall,
with such notice, submit his or her Rights Certificate for inspection by the
Company), then the registered holder of any Rights Certificate may apply to
any
court of competent jurisdiction for the appointment of a new Rights
Agent. Any successor Rights Agent, whether appointed by the Company
or by such a court, shall be a corporation organized and doing business under
the laws of the United States or of any state of the United States, in good
standing, which is authorized under such laws to exercise corporate trust or
stockholder services 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, along with its Affiliates, a combined capital and surplus of
at
least U.S. $50 million. After appointment, the successor Rights Agent
shall be vested with the same powers, rights, duties and responsibilities as
if
it had been originally named as Rights Agent without further act or deed; but
the predecessor Rights Agent shall deliver and transfer to the successor Rights
Agent any property at the time held by it hereunder, and execute and deliver
any
further assurance, conveyance, act or deed necessary for the
purpose. Not later than the effective date of any such appointment,
the Company shall file notice thereof in writing with the predecessor Rights
Agent and each transfer agent of the Preferred Shares and the Common Stock,
and
mail a written notice thereof to the registered holders of the Rights
Certificates. Failure to give any notice provided for in this Section
21, however, or any defect therein, shall not affect the legality or validity
of
the resignation or removal of the Rights Agent or the appointment of the
successor Rights Agent, as the case may be.
22. Issuance
of New Rights
Certificates. Notwithstanding any of the provisions of this
Agreement or of the Rights to the contrary, the Company may, at its option,
issue new Rights Certificates evidencing Rights in such form as may be approved
by its Board of Directors to reflect any adjustment or change in the Exercise
Price and the number or kind or class of shares or other securities or property
purchasable under the Rights Certificates made in accordance with the provisions
of this Agreement. In addition, in connection with the issuance or
sale of shares of Common Stock following the Distribution Date and prior to
the
redemption or expiration of the Rights, the Company (a) shall, with respect
to
shares of Common Stock so issued or sold pursuant to the exercise of stock
options or under any employee plan or arrangement or upon the exercise,
conversion or exchange of other securities of the Company outstanding at the
date hereof or upon the exercise, conversion or exchange of securities
hereinafter issued by the Company and (b) may, in any other case, if deemed
necessary or appropriate by the Board of Directors of the Company, issue Rights
Certificates representing the appropriate number of Rights in connection with
such issuance or sale; provided, however,
that (i) no
such Rights Certificate shall be issued and this sentence shall be null and
void
ab initio if, and to the extent that, such issuance or this sentence would
create a significant risk of or result in material adverse tax consequences
to
the Company or the Person to whom such Rights Certificate would be issued or
would create a significant risk of or result in such options’ or employee plans’
or arrangements’ failing to qualify for otherwise available special tax
treatment and (ii) no such Rights Certificate shall be issued if, and to the
extent that, appropriate adjustment shall otherwise have been made in lieu
of
the issuance thereof.
23. Redemption.
(a)
The Company may, at its option and with the approval of the Board of Directors,
at any time prior to the Close of Business on the earlier of (i) the Shares
Acquisition Date and (ii) the Final Expiration Date, redeem all but not less
than all the then outstanding Rights at a redemption price of U.S. $0.001 per
Right, appropriately adjusted to reflect any stock split, stock dividend or
similar transaction occurring after the date hereof (such redemption price
being
herein referred to as the “Redemption Price”)
and the Company may, at its option, pay the Redemption Price either in shares
of
Common Stock (based on the Current Per Share Market Price thereof at the time
of
redemption) or cash. Such redemption of the Rights by the Company may
be made effective at such time, on such basis and with such conditions as the
Board of Directors in its sole discretion may establish. The date on
which the Board of Directors elects to make the redemption effective shall
be
referred to as the “Redemption
Date”.
(b)
Immediately upon the action of the Board of Directors of the Company ordering
the redemption of the Rights, evidence of which shall have been filed with
the
Rights Agent, and without any further action and without any notice, the right
to exercise the Rights will terminate and the only right thereafter of the
holders of Rights shall be to receive the Redemption Price. The Company shall
promptly give public notice of any such redemption; provided, however,
that the
failure to give or any defect in, any such notice shall not affect the validity
of such redemption. Within ten (10) days after the action of the
Board of Directors ordering the redemption of the Rights, the Company shall
give
notice of such redemption to the Rights Agent and the holders of the then
outstanding Rights by mailing such notice to all such holders at their last
addresses as they appear upon the registry books of the Rights Agent or, prior
to the Distribution Date, on the registry books of the transfer agent for the
Common Stock. Any notice which is mailed in the manner herein
provided shall be deemed given, whether or not the holder receives the
notice. Each such notice of redemption will state the method by which
the payment of the Redemption Price will be made. Neither the Company
nor any of its Affiliates or Associates may redeem, acquire or purchase for
value any Rights at any time in any manner other than that specifically set
forth in this Section 23 or in Section 24 hereof, and other than in connection
with the purchase of shares of Common Stock prior to the Distribution
Date.
24. Exchange.
(a)
Subject to applicable laws, rules and regulations, and subject to subsection
24(c) below, the Company may, at its option, by action of the Board of
Directors, at any time after the 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 7(e) hereof)
for shares of Common Stock at an exchange ratio of one share of Common Stock
per
Right, appropriately adjusted to reflect any stock split, stock dividend or
similar transaction occurring after the date hereof (such exchange ratio being
hereinafter referred to as the “Exchange
Ratio”). Notwithstanding the foregoing, the Board of Directors
shall not be empowered to effect such exchange at any time after any Person
(other than the Company, any Subsidiary of the Company, any employee benefit
plan of the Company or any such Subsidiary, or any entity holding Common Stock
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 Stock then outstanding.
(b)
Immediately upon the action of the Board of Directors ordering the exchange
of
any Rights pursuant to subsection 24(a) of this Section 24 and without any
further action and without any notice, the right to exercise such Rights shall
terminate and the only right thereafter of a holder of such Rights shall be
to
receive that number of shares of Common Stock equal to the number of such Rights
held by such holder multiplied by the Exchange Ratio. The Company shall give
public notice of any such exchange; provided, however,
that the
failure to give, or any defect in, such notice shall not affect the validity
of
such exchange. The Company shall mail a notice of any such exchange
to all of the holders of such Rights at their last addresses as they appear
upon
the registry books of the Rights Agent. Any notice which is mailed in
the manner herein provided shall be deemed given, whether or not the holder
receives the notice. Each such notice of exchange will state the
method by which the exchange of the shares of Common Stock for Rights will
be
effected and, in the event of any partial exchange, the number of Rights which
will be exchanged. Any partial exchange shall be effected pro rata
based on the number of Rights (other than Rights which have become void pursuant
to the provisions of Section 7(e) hereof) held by each holder of
Rights.
(c)
In the event that there shall not be sufficient shares of Common Stock issued
but not outstanding or authorized but unissued to permit any exchange of Rights
as contemplated in accordance with Section 24(a), the Company shall either
take
such action as may be necessary to authorize additional shares of Common Stock
for issuance upon exchange of the Rights or alternatively, at the option of
a
majority of the Board of Directors, with respect to each Right (i) pay cash
in
an amount equal to the Current Value (as hereinafter defined), in lieu of
issuing shares of Common Stock in exchange therefor, or (ii) issue debt or
equity securities or a combination thereof, having a value equal to the Current
Value, in lieu of issuing shares of Common Stock in exchange for each such
Right, where the value of such securities shall be determined by a nationally
recognized investment banking firm selected by majority vote of the Board of
Directors, or (iii) deliver any combination of cash, property, shares of Common
Stock and/or other securities having a value equal to the Current Value in
exchange for each Right. For purposes of this Section 24(c) only, the Current
Value shall mean the product of the Current Per Share Market Price of shares
of
Common Stock on the date of the occurrence of the event described above in
subparagraph (a), multiplied by the number of shares of Common Stock for which
the Right otherwise would be exchangeable if there were sufficient shares
available. To the extent that the Company determines that some action need
be
taken pursuant to clauses (i), (ii) or (iii) of this Section 24(c), the Board
of
Directors may temporarily suspend the exercisability of the Rights for a period
of up to sixty (60) days following the date on which the event described in
Section 24(a) shall have occurred, in order to seek any authorization of
additional shares of Common Stock and/or to decide the appropriate form of
distribution to be made pursuant to the above provision and to determine the
value thereof. In the event of any such suspension, the Company shall issue
a
public announcement stating that the exercisability of the Rights has been
temporarily suspended.
(d)
The Company shall not be required to issue fractions of shares of Common Stock
or to distribute certificates which evidence fractional shares of Common Stock.
In lieu of such fractional shares of Common Stock, there shall be paid to the
registered holders of the Rights Certificates with regard to which such
fractional shares of Common Stock would otherwise be issuable, an amount in
cash
equal to the same fraction of the current market value of a whole share of
Common Stock (as determined pursuant to the terms hereof).
(e)
The Company may, at its option, by majority vote of the Board of Directors,
at
any time before any Person has become an Acquiring Person, exchange all or
part
of the then outstanding Rights for rights of substantially equivalent value,
as
determined reasonably and with good faith by the Board of Directors, based
upon
the advice of one or more nationally recognized investment banking
firms.
(f)
Immediately upon the action of the Board of Directors ordering the exchange
of
any Rights pursuant to subsection 24(e) of this Section 24 and without any
further action and without any notice, the right to exercise such Rights shall
terminate and the only right thereafter of a holder of such Rights shall be
to
receive that number of rights in exchange therefor as has been determined by
the
Board of Directors in accordance with subsection 24(e) above. The Company shall
give public notice of any such exchange; provided, however,
that the
failure to give, or any defect in, such notice shall not affect the validity
of
such exchange. The Company shall mail a notice of any such exchange
to all of the holders of such Rights at their last addresses as they appear
upon
the registry books of the transfer agent for the shares of Common Stock of
the
Company. Any notice which is mailed in the manner herein provided
shall be deemed given, whether or not the holder receives the
notice. Each such notice of exchange will state the method by which
the exchange of the Rights will be effected.
25. Notice
of Certain
Events.
(a)
In case the Company shall propose to effect or permit to occur any Triggering
Event or Section 13 Event, the Company shall give notice thereof to each holder
of Rights in accordance with Section 26 hereof at least twenty (20) days prior
to occurrence of such Triggering Event or such Section 13 Event.
(b)
In case any Triggering Event or Section 13 Event shall occur, then, in any
such
case, the Company shall as soon as practicable thereafter give to each holder
of
a Rights Certificate, in accordance with Section 26 hereof, a notice of the
occurrence of such event, which shall specify the event and the consequences
of
the event to holders of Rights under Sections 11(a)(ii) and 13
hereof.
26. Notices. Notices
or demands authorized by this Agreement to be given or made by the Rights Agent
or by the holder of any Rights Certificate to or on the Company shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed (until another address is filed in writing with the Rights Agent)
as
follows:
00
Xxxxxxxxx Xxxxxx
Xxxxxxx
Xxxxxx
- 00000
Xxxxxx
Attention:
Xxxxxx Xxxxxxxx
with
a copy to:
Xxxxxx
& Xxxxxx LLP
Xxx
Xxxxxxx Xxxx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention:
Xxxx X. Xxxxx, Esq.
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 Rights
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:
American
Stock Transfer & Trust Company
00
Xxxxxx Xxxx
Xxxxx
Xxxxx
Xxx
Xxxx, XX 00000
Notices
or demands authorized by this Agreement to be given or made by the Company
or
the Rights Agent to the holder of any Rights Certificate shall be sufficiently
given or made if sent by first-class mail, postage prepaid, addressed to such
holder at the address of such holder as shown on the registry books of the
Company.
27. Supplements
and
Amendments. Prior to the occurrence of a Distribution Date,
the Company may supplement or amend this Agreement in any respect without the
approval of any holders of Rights and the Rights Agent shall, if the Company
so
directs, execute such supplement or amendment. From and after the
occurrence of a Distribution Date, the Company and the Rights Agent may from
time to time supplement or amend this Agreement without the approval of any
holders of Rights in order to (i) cure any ambiguity, (ii) correct or supplement
any provision contained herein which may be defective or inconsistent with
any
other provisions herein, (iii) shorten or lengthen any time period hereunder
or
(iv) to change or supplement the provisions hereunder in any manner that the
Company may deem necessary or desirable and that shall not adversely affect
the
interests of the holders of Rights (other than an Acquiring Person or an
Affiliate or Associate of an Acquiring Person); provided, this Agreement may
not
be supplemented or amended to lengthen, pursuant to clause (iii) of this
sentence, (A) a time period relating to when the Rights may be redeemed at
such
time as the Rights are not then redeemable or (B) any other time period unless
such lengthening is for the purpose of protecting, enhancing or clarifying
the
rights of, and/or the benefits to, the holders of Rights (other than an
Acquiring Person or an Affiliate or Associate of an Acquiring
Person). Upon the delivery of a certificate from an appropriate
officer of the Company that states that the proposed supplement or amendment
is
in compliance with the terms of this Section 27, the Rights Agent shall execute
such supplement or amendment, provided that such supplement or amendment does
not adversely affect the rights, duties or obligations of the Rights Agent
under
this Agreement. Prior to the Distribution Date, the interests of the
holders of Rights shall be deemed coincident with the interests of the holders
of shares of Common Stock.
28. Successors. All
the covenants and provisions of this Agreement by or for the benefit of the
Company or the Rights Agent shall bind and inure to the benefit of their
respective successors and assigns hereunder.
29. Determinations
and Actions
by the Board of Directors, etc. For all purposes of this
Agreement, any calculation of the number of shares of Common Stock outstanding
at any particular time, including for purposes of determining the
particular percentage of such outstanding shares of Common Stock of which
any
Person is the Beneficial Owner, shall be made in accordance with the last
sentence of Rule 13d-3(d)(1)(i) of the General Rules and Regulations under
the
Exchange Act. The Board of Directors of the Company shall have the
exclusive power and authority to administer this Agreement and to exercise
all
rights and powers specifically granted to the Board, or 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
not
redeem the Rights or to 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 in good faith, shall (x) be final, conclusive and binding
on
the Company, the Rights Agent, the holders of the Rights Certificates and
all
other parties and (y) not subject the Board to any liability to the holders
of
the Rights.
30. Benefits
of this
Agreement. Nothing in this Agreement shall be construed to
give to any Person other than the Company, the Rights Agent and the registered
holders of the Rights Certificates (and, prior to the Distribution Date, the
shares of Common Stock) any legal or equitable right, remedy or claim under
this
Agreement; but this Agreement shall be for the sole and exclusive benefit of
the
Company, the Rights Agent and the registered holders of the Rights Certificates
(and, prior to the Distribution Date, the shares of Common Stock).
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; provided, however,
that
notwithstanding anything in this Agreement to the contrary, if any such term,
provision, covenant or restriction is held by such court or authority to be
invalid, void or unenforceable and the Board of Directors of the Company
determines in its good faith judgment that severing the invalid language from
this Agreement would adversely affect the purpose or effect of this Agreement,
the right of redemption set forth in Section 23 hereof shall be reinstated
and
shall not expire until the Close of Business on the tenth day following the
date
of such determination by the Board of Directors.
32. Governing
Law. This Agreement and each Right and each Rights Certificate
issued hereunder shall be deemed to be a contract made under the laws of New
York and for all purposes shall be governed by and construed in accordance
with
the laws of such jurisdiction applicable to contracts to be made and performed
entirely within such jurisdiction.
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.
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.
35. Force
Majeure. Notwithstanding anything to the contrary contained
herein, the Rights Agent shall not be liable for any delays or failures in
performance resulting from acts beyond its reasonable control including, without
limitation, acts of God, terrorist acts, shortage of supply, breakdowns or
malfunctions, interruptions or malfunction of computer facilities, or loss
of
data due to power failures or mechanical difficulties with information storage
or retrieval systems, labor difficulties, war, or civil unrest.
IN
WITNESS WHEREOF, the parties have executed this Stockholder Rights Agreement
as
of the date first written above.
By:_________________________________
Name:
Xxxxxx Xxxxxxxx
Title: President
and Chief Executive Officer
AMERICAN
STOCK TRANSFER & TRUST COMPANY
By:_________________________________
Name:
Title:
Exhibit
A
CERTIFICATE
OF DESIGNATIONS OF RIGHTS, PREFERENCES AND PRIVILEGES OF SERIES A PARTICIPATING
PREFERRED STOCK OF
The
undersigned, Mr. Xxxxxx Xxxxxxxx and Xx. Xxxx Xxxxxxxxxxxx do hereby
certify:
1. That
they are the duly elected and acting President/Chief Executive Officer and
Corporate Secretary, respectively, of DryShips Inc., a Xxxxxxxx Islands
corporation (the “Company”).
2. That
pursuant to the authority conferred by the Company’s Amended and Restated
Articles of Incorporation, the Company’s Board of Directors on January 16, 2008
adopted the following resolution designating and prescribing the relative
rights, preferences and limitations of the Company’s Series A Participating
Preferred Stock:
RESOLVED,
that pursuant to the authority vested in the Board of Directors (the “Board”) of the
Company by the Articles of Incorporation, the Board does hereby establish a
series of preferred stock, par value U.S. $0.01 per share, and the designation
and certain powers, preferences and other special rights of the shares of such
series, and certain qualifications, limitations and restrictions thereon, are
hereby fixed as follows:
Section
1. Designation
and
Amount. The shares of such series shall be designated as
“Series A
Participating Preferred Stock”. The Series A Participating
Preferred Stock shall have a par value of U.S. $0.01 per share, and the number
of shares constituting such series shall initially be 10,000,000, which number
the Board may from time to time increase or decrease (but not below the number
then outstanding).
Section
2. Proportional
Adjustment. In the event the Company shall at any time after
the issuance of any share or shares of Series A Participating Preferred Stock
(i) declare any dividend on the common stock of the Company par value U.S.
$0.01
per share (the “Common
Stock”) payable in shares of Common Stock, (ii) subdivide the outstanding
Common Stock or (iii) combine the outstanding Common Stock into a smaller number
of shares, then in each such case the Company shall simultaneously effect a
proportional adjustment to the number of outstanding shares of Series A
Participating Preferred Stock.
Section
3. Dividends and
Distributions.
(a) Subject
to the prior and superior right of the holders of any shares of any series
of
preferred stock ranking prior and superior to the shares of Series A
Participating Preferred Stock with respect to dividends, the holders of shares
of Series A Participating Preferred Stock shall be
entitled
to receive when, as and if declared by the Board out of funds legally available
for the purpose, quarterly dividends payable in quarterly in each year (each
such date being referred to herein as a “Quarterly Dividend
Payment
Date”), commencing on the first Quarterly Dividend Payment Date after the
first issuance of a share or fraction of a share of Series A Participating
Preferred Stock, in an amount per share (rounded to the nearest cent) equal
to
1,000 times the aggregate per share amount of all cash dividends, and 1,000
times the aggregate per share amount (payable in kind) of all non-cash dividends
or other distributions other than a dividend payable in shares of Common Stock
or a subdivision of the outstanding shares of Common Stock (by reclassification
or otherwise), declared on the Common Stock since the immediately preceding
Quarterly Dividend Payment Date, or, with respect to the first Quarterly
Dividend Payment Date, since the first issuance of any share or fraction of
a
share of Series A Participating Preferred Stock.
(b)
The Company shall declare a dividend or distribution on the Series A
Participating Preferred Stock as provided in paragraph (a) above immediately
after it declares a dividend or distribution on the Common Stock (other than
a
dividend payable in shares of Common Stock).
(c)
Dividends shall begin to accrue on outstanding shares of Series A Participating
Preferred Stock from the Quarterly Dividend Payment Date immediately preceding
the date of issue of such shares of Series A Participating Preferred Stock,
unless the date of issue of such shares is prior to the record date for the
first Quarterly Dividend Payment Date, in which case dividends on such shares
shall begin to accrue from the date of issue of such shares, or unless the
date
of issue is a Quarterly Dividend Payment Date or is a date after the record
date
for the determination of holders of shares of Series A Participating Preferred
Stock entitled to receive a quarterly dividend and before such Quarterly
Dividend Payment Date, in either of which events such dividends shall begin
to
accrue from such Quarterly Dividend Payment Date. Accrued but unpaid dividends
shall not bear interest. Dividends paid on the shares of Series A Participating
Preferred Stock in an amount less than the total amount of such dividends at
the
time accrued and payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding. The Board
may fix a record date for the determination of holders of shares of Series
A
Participating Preferred Stock entitled to receive payment of a dividend or
distribution declared thereon, which record date shall be no more than 30 days
prior to the date fixed for the payment thereof.
Section
4. Voting
Rights. The holders of shares of Series A Participating
Preferred Stock shall have the following voting rights:
(a) Each
share of Series A Participating Preferred Stock shall entitle the holder thereof
to 1,000 votes on all matters submitted to a vote of the stockholders of the
Company .
(b) Except
as otherwise provided herein or by law, the holders of shares of Series A
Participating Preferred Stock and the holders of shares of Common Stock shall
vote together as one class on all matters submitted to a vote of stockholders
of
the Company .
(c) Except
as required by law, holders of Series A Participating Preferred Stock shall
have
no special voting rights and their consent shall not be required (except to
the
extent they are entitled to vote with holders of Common Stock as set forth
herein) for taking any corporate action.
Section
5. Certain
Restrictions.
(a) The
Company shall not declare any dividend on, make any distribution on, or redeem
or purchase or otherwise acquire for consideration any shares of Common Stock
after the first issuance of a share or fraction of a share of Series A
Participating Preferred Stock unless concurrently therewith it shall declare
a
dividend on the Series A Participating Preferred Stock as required by Section
3
hereof.
(b) Whenever
quarterly dividends or other dividends or distributions payable on the Series
A
Participating Preferred Stock as provided in Section 3 are in arrears,
thereafter and until all accrued and unpaid dividends and distributions, whether
or not declared, on shares of Series A Participating Preferred Stock outstanding
shall have been paid in full, the Company shall not (i) declare or pay dividends
on, make any other distributions on, or redeem or purchase or otherwise acquire
for consideration any shares of stock ranking junior (either as to dividends
or
upon liquidation, dissolution or winding up) to the Series A Participating
Preferred Stock; (ii) declare or pay dividends on, make any other distributions
on any shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with Series A Participating Preferred
Stock, except dividends paid ratably on the Series A Participating Preferred
Stock and all such parity stock on which dividends are payable or in arrears
in
proportion to the total amounts to which the holders of all such shares are
then
entitled; (iii) redeem or purchase or otherwise acquire for consideration shares
of any stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Participating Preferred Stock,
provided that the Company may at any time redeem, purchase or otherwise acquire
shares of any such parity stock in exchange for shares of any stock of the
Company ranking junior (either as to dividends or upon dissolution, liquidation
or winding up) to the Series A Participating Preferred Stock; (iv) purchase
or
otherwise acquire for consideration any shares of Series A Participating
Preferred Stock, or any shares of stock ranking on a parity with the Series
A
Participating Preferred Stock, except in accordance with a purchase offer made
in writing or by publication (as determined by the Board) to all holders of
such
shares upon such terms as the Board, after consideration of the respective
annual dividend rates and other relative rights and preferences of the
respective series and classes, shall determine in good faith will result in
fair
and equitable treatment among the respective series or classes.
(c) The
Company shall not permit any subsidiary of the Company to purchase or otherwise
acquire for consideration any shares of stock of the Company unless the Company
could, under paragraph (a) of this Section 5, purchase or otherwise acquire
such
shares at such time and in such manner.
Section
6. Reacquired
Shares. Any shares of Series A Participating Preferred Stock
purchased or otherwise acquired by the Company in any manner
whatsoever shall be retired and canceled promptly after the acquisition
thereof. All such shares shall upon their cancellation become
authorized but unissued shares of preferred stock and may be reissued as part
of
a newseries
of preferred stock to be created by resolution or resolutions of the Board,
subject to the conditions and restrictions on issuance set forth herein and,
in
the Articles of Incorporation, as then amended.
Section
7. Liquidation, Dissolution
or
Winding Up. Upon any liquidation, dissolution or winding up of
the Company, the holders of shares of Series A Participating Preferred Stock
shall be entitled to receive an aggregate amount per share equal to 1,000 times
the aggregate amount to be distributed per share to holders of shares of Common
Stock plus an amount equal to any accrued and unpaid dividends on such shares
of
Series A Participating Preferred Stock.
Section
8. Consolidation, Merger,
etc. In case the Company shall enter into any consolidation,
merger, combination or other transaction in which the shares of Common Stock
are
exchanged for or changed into other stock or securities, cash and/or any other
property, then in any such case the shares of Series A Participating Preferred
Stock shall at the same time be similarly exchanged or changed in an amount
per
share equal to 1,000 times the aggregate amount of stock, securities, cash
and/or any other property (payable in kind), as the case may be, into which
or
for which each share of Common Stock is changed or exchanged.
Section
9. No
Redemption. The shares of Series A Participating Preferred
Stock shall not be redeemable.
Section
10. Ranking. The
Series A Participating Preferred Stock shall rank junior to all other series
of
the Company’s preferred stock as to the payment of dividends and the
distribution of assets, unless the terms of any such series shall provide
otherwise.
Section
11. Amendment. The
Articles of Incorporation of the Company shall not be further amended in any
manner which would materially alter or change the powers, preference or special
rights of the Series A Participating Preferred Stock so as to affect them
adversely without the affirmative vote of the holders of a majority of the
outstanding shares of Series A Participating Preferred Stock, voting separately
as a class.
Section
12. Fractional
Shares. Series A Participating Preferred Stock may be issued
in fractions of a share which shall entitle the holder, in proportion to such
holder’s fractional shares, to exercise voting rights, receive dividends,
participate in distributions and to have the benefit of all other rights of
holders of Series A Participating Preferred Stock.
RESOLVED
FURTHER, that the President, Chief Executive Officer or any Vice President
and
the Secretary or any Assistant Secretary of this Company be, and they hereby
are, authorized and directed to prepare and file a Certificate of Designation
of
Rights, Preferences and Privileges in accordance with the foregoing resolution
and the provisions of Xxxxxxxx Islands law and to take such actions as they
may
deem necessary or appropriate to carry out the intent of the foregoing
resolution.”
REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
EXECUTION
COPY
We
further declare under penalty of perjury that the matters set forth in the
foregoing Certificate of Designation are true and correct of our own
knowledge.
Executed
in Athens, Greece on January 18, 2008.
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________________________________
Xxxxxx
Xxxxxxxx
President
& Chief Executive Officer
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________________________________
Xxxx
Xxxxxxxxxxxx
Corporate
Secretary
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Exhibit
B
FORM
OF RIGHTS CERTIFICATE
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DRYSHIPS
INC.
INCORPORATED
UNDER THE LAWS
OF
THE XXXXXXXX ISLANDS
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SHARES
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SEE
REVERSE FOR
CERTAIN
DEFINITIONS
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CUSIP
Y2109Q 10 1
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THIS
IS TO CERTIFY THAT
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SPECIMEN
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IS
THE OWNER OF
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FULLY-PAID
AND NON-ASSESSABLE SHARES OF THE PAR VALUE OF $.01 EACH OF THE COMMON
STOCK OF
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transferable
on the books of the Corporation by the holder hereof in person or
by duly
authorized attorney upon surrender of this certificate properly
endorsed.
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This
certificate is not valid unless countersigned and registered by the
Transfer Agent and Registrar.
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WITNESS
the facsimile seal of the Corporation and the facsimile signatures
of its
duly authorized officers.
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Dated:
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[Signature]
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[Signature]
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CHIEF
FINANCIAL OFFICER, VICE PRESIDENT
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CHAIRMAN,
CHIEF EXECUTIVE OFFICER, PRESIDENT
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COUNTERSIGNED
AND REGISTERED:
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AMERICAN
STOCK TRANSFER & TRUST COMPANY
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TRANSFER
AGENT AND REGISTRAR
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(New
York, N.Y.)
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by:
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AUTHORIZED
SIGNATURE
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The
following abbreviations, which used in the inscription on the face of this
certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
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TEN
COM
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—
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as
tenants in common
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UNIF
GIFT MIN ACT
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—
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......................Custodian..................
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TEN
ENT
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—
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as
tenants by the entireties
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(Cust) (Minor)
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JT
TEN
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—
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as
joint tenants with right of
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under
Uniform Gifts to Minors
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survivorship
and not as tenantsin common
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Act.................................................
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(State)
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Additional
abbreviations may also be used though not in the above list.
FOR
VALUE
RECEIVED,
hereby sell, assign and transfer unto
PLEASE
INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING
NUMBER OF ASSIGNEE
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(PLEASE
PRINT
OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE)
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Shares
|
|
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of
the capital stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
|
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Attorney
|
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to
transfer the said stock on the books of the within named Corporation
with
full power of substitution in the premises.
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Dated
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NOTICE:
The signature to this assignment must correspond with the name as
written
upon the face of the certificate in every particular without alteration
or
enlargement or any change whatever. The signature of the person executing
this power must be guaranteed by an Eligible Credit Union, or a Savings
Association participating in a Medallion program approved by the
Securities Transfer Association, Inc.
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Signature(s)
Guaranteed
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By
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The
signature(s)
must be guaranteed by an eligible guarantor institution (banks,
stockbrokers, savings and loan associations and credit unions with
membership in an
approved signature guarantee medallion program), pursuant to S.E.C. Rule 17Ad-15. |
KEEP
THIS CERTIFICATE IN A SAFE PLACE. IF IT IS LOST, STOLEN, MUTILATED OR DESTROYED
THE CORPORATION WILL REQUIRE A BOND OF INDEMNITY AS A CONDITION TO THE ISSUANCE
OF A REPLACEMENT CERTIFICATE.
Exhibit
C
SUMMARY
OF RIGHTS
|
Distribution
and Transfer of Rights; Distribution Date:
|
The
rights will separate from the common stock and become exercisable
after
(1) a person or group acquires ownership of 15% or more of the company's
common stock or (2) the 10th business day (or such later date as
determined by the company’s board of directors) after a person or group
announces a tender or exchange offer which would result in that person
or
group holding 15% or more of the company's common stock.
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Preferred
Stock Purchaseable Upon Exercise of Rights:
|
On
the Distribution Date, each holder of a right will be entitled to
purchase
for U.S. $130 (the “Exercise Price”) a fraction (1/1000th) of one share of
the company’s preferred stock which has similar economic terms as one
share of common stock.
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Flip-in:
|
If
an acquiring person (an “Acquiring Person”) acquires more than 15% of the
company's common stock then each holder of a right (except that acquiring
person) will be entitled to buy at the Exercise Price, a number of
shares
of the company's common stock which has a market value of twice the
Exercise Price.
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Flip-over:
|
If
after an Acquiring Person acquires more than 15% of the company's
common
stock, the company merges into another company (either as the surviving
corporation or as the disappearing entity) or the company sells more
than
50% of its assets or earning power, then each holder of a right (except
for those owned by the acquirer) will be entitled to purchase at
the
Exercise Price, a number of shares of common stock of the surviving
entity
which has a then current market value of twice the Exercise
Price.
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Exchange
Provision:
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Any
time after the date an Acquiring Person obtains more than 15% of
the
company's common stock and before that Acquiring Person acquires
more than
50% of the company's outstanding common stock, the company may exchange
each right owned by all other rights holders, in whole or in part,
for one
share of the company's common stock.
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Redemption
of Rights:
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The
company can redeem the rights at any time prior to a public announcement
that a person has acquired ownership of 15% or more of the company's
common stock.
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Expiration
of Rights:
|
The
rights expire on the earliest of (1) February 4, 2018 or (2) the
exchange
or redemption of the rights as described above.
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Amendment
of Terms of Rights:
|
The
terms of the rights and the Stockholder Rights Plan may be amended
without
the consent of the rights holders at any time on or prior to the
Distribution Date. After the Distribution Date, the terms of
the rights and the Stockholder Rights Plan may be amended to make
changes,
which do not adversely affect the rights of the rights holders (other
than
the Acquiring Person).
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Voting
Rights:
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The
rights will not have any voting rights.
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Anti-dilution
Provisions:
|
The
rights will have the benefit of certain customary anti-dilution
protections.
|
SK
23113 0002 845259
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