ADVANTA CORP. and MELLON INVESTOR SERVICES LLC as Rights Agent Rights Agreement Dated April 11, 2007
Exhibit 1
and
MELLON INVESTOR SERVICES LLC
as
Rights Agent
Dated April 11, 2007
TABLE OF CONTENTS
| Page | ||||||
| Section 1. | Certain Definitions
|
1 | ||||
| Section 2. | Appointment of Rights Agent
|
5 | ||||
| Section 3. | Issue of Rights Certificates
|
5 | ||||
| Section 4. | Form of Rights Certificates
|
8 | ||||
| Section 5. | Countersignature and Registration
|
8 | ||||
| Section 6. | Transfer, Split Up, Combination and Exchange of Rights Certificates;
Mutilated, Destroyed, Lost or Stolen Rights Certificates
|
9 | ||||
| Section 7. | Exercise of Rights; Purchase Price; Expiration Date of Rights
|
10 | ||||
| Section 8. | Cancellation and Destruction of Rights Certificates
|
12 | ||||
| Section 9. | Reservation and Availability of Capital Stock
|
12 | ||||
| Section 10. | Preferred Stock Record Date
|
14 | ||||
| Section 11. | Adjustment of Purchase Price, Number and Kind of Shares or Number of
Rights |
14 | ||||
| Section 12. | Certificate of Adjusted Purchase Price or Number of Shares
|
22 | ||||
| Section 13. | Change in Majority of Directors, Consolidation, Merger or Sale or Transfer
of Assets or Earning Power
|
22 | ||||
| Section 14. | Fractional Rights and Fractional Shares
|
24 | ||||
| Section 15. | Rights of Action
|
26 | ||||
| Section 16. | Agreement of Rights Holders
|
26 | ||||
| Section 17. | Rights Certificate Holder Not Deemed a Stockholder
|
27 | ||||
| Section 18. | Concerning the Rights Agent
|
27 | ||||
| Section 19. | Merger or Consolidation or Change of Name of Rights Agent
|
28 | ||||
| Section 20. | Rights and Duties of Rights Agent
|
28 | ||||
| Section 21. | Change of Rights Agent
|
31 | ||||
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| Page | ||||||
| Section 22. | Issuance of New Rights Certificates
|
31 | ||||
| Section 23. | Redemption and Termination
|
32 | ||||
| Section 24. | Notice of Certain Events
|
33 | ||||
| Section 25. | Notices
|
34 | ||||
| Section 26. | Modifications, Supplements and Amendments
|
34 | ||||
| Section 27. | Exchange
|
35 | ||||
| Section 28. | Successors
|
36 | ||||
| Section 29. | Determinations and Actions by the Board of Directors, etc.
|
36 | ||||
| Section 30. | Benefits of this Agreement
|
37 | ||||
| Section 31. | Severability
|
37 | ||||
| Section 32. | Governing Law
|
37 | ||||
| Section 33. | Counterparts
|
37 | ||||
| Section 34. | Descriptive Headings
|
37 | ||||
| Exhibit A — Form of Rights Certificate | ||||||
| Exhibit B — Summary of Rights to Purchase Series A Junior Participating Preferred Stock | ||||||
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RIGHTS AGREEMENT, executed by the
parties hereto on April 11, 2007 (the “Agreement”), between Advanta Corp., a Delaware corporation (the “Company”), and
Mellon Investor Services LLC, a New Jersey limited liability company, as Rights Agent (the “Rights
Agent”).
W I T N E S S E T H:
WHEREAS,
on April 2, 2007 and on
April 11, 2007 (the latter date
being referred to as the “Rights Dividend Declaration Date”), the Board of Directors of
the Company authorized and declared a dividend distribution of one Class A Right (“Class A Rights”)
for each share of Class A Common Stock, par value $0.01 per share, of the Company (the “Class A
Common Stock”) and one Class B Right (“Class B Rights” and, together with the Class A Rights, the
“Rights”) for each share of Class B Common Stock, par value $0.01 per share, of the Company (the
“Class B Common Stock” and, together with the Class A Common Stock, the “Common Stock”) outstanding
at the Close of Business (as hereinafter defined) on April 11, 2007 (the “Record Date”), and has
authorized the issuance of one Class A Right (as such number may hereinafter be adjusted pursuant
to the provisions of Section 11(p) hereof) for each share of Class A Common Stock and one Class B
Right (as such number may hereinafter be adjusted pursuant to the provisions of Section 11(p)
hereof) for each share of Class B Common Stock issued between the Record Date (whether originally
issued or delivered from the Company’s treasury) and the Distribution Date (as defined in Section 3
hereof), each Right initially representing the right to purchase one ten-thousandth (1/10,000) of a
share (a “Unit”) of Series A Junior Participating Preferred Stock (the “Preferred Stock”) of the
Company having the rights, powers and preferences set forth in the Certificate of Designation,
Preferences and Rights of Series A Junior Participating Preferred Stock filed by the Company with
the Secretary of State of the State of Delaware, upon the terms and subject to the conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual agreements herein set forth,
the parties hereby agree as follows:
Section 1. Certain Definitions. For purposes of this Agreement, the following terms have the
meanings indicated:
(a) “Acquiring Person” shall mean any Person (as hereinafter defined) who or which, together
with all Affiliates and Associates (as such terms are hereinafter defined) of such Person, shall be
the Beneficial Owner (as hereinafter defined) of 15% or more of the shares of Common Stock then
outstanding or 15% or more of the shares of either the Class A Common Stock or the Class B Common
Stock then outstanding, but shall not include (i) the Company, (ii) any Subsidiary (as hereinafter
defined) of the Company, (iii) any employee benefit plan of the Company or of any Subsidiary of the
Company, (iv) any Person organized, appointed or established by the Company for or pursuant to the
terms of any such plan, or (v) any Exempted Person. Notwithstanding the foregoing, if a majority
of the Board of Directors determines in good faith that a Person who would otherwise be an
Acquiring Person has become such (A) under circumstances where such Person did not intend, or
honestly did not know, that such Person would become the Beneficial Owner of 15% or more of the
shares of Common Stock
then outstanding or 15% or more of the shares of either the Class A Common Stock or the Class
B Common Stock then outstanding upon the occurrence of the event or circumstance causing such
Person to become such, or because such Person did not have actual knowledge of the existence of, or
consequences of such accumulation under, this Agreement, and (B) without any intention of changing
or influencing control of the Company, and (C) if such Person divests itself as promptly as
practicable, but in no event later than five (5) Business Days after notice from the Company, of a
sufficient number of such shares of Class A Common Stock and/or Class B Common Stock so that such
Person would no longer be the Beneficial Owner of that percentage of shares which would otherwise
result in it being an Acquiring Person, then such Person shall not be deemed to be or to have
become an Acquiring Person for any purposes of this Agreement. A majority of the Board of
Directors may make all determinations of fact and intent necessary for purposes of the preceding
exception so long as made by them in good faith.
(b) “Affiliate” and “Associate” shall have the respective meanings ascribed to such terms in
Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as
amended and in effect on the date of this Agreement (the “Exchange Act”).
(c) A Person shall be deemed the “Beneficial Owner” of, and shall be deemed to “beneficially
own,” any securities:
(i) which such Person or any of such Person’s Affiliates or Associates, directly or
indirectly, has the right to acquire (whether such right is exercisable immediately or only after
the passage of time or the occurrence of an event) pursuant to any agreement, arrangement or
understanding (whether or not in writing) or upon the exercise of conversion rights, exchange
rights, rights, warrants or options, or otherwise; provided, however, that a Person
shall not be deemed the “Beneficial Owner” of, or to “beneficially own,” (A) securities tendered
pursuant to a tender offer 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, (B) securities issuable upon exercise of Rights at any time prior to the occurrence of a
Triggering Event, (C) securities issuable upon exercise of Rights from and after the occurrence of
a Triggering Event, which Rights were acquired by such Person or any of such Person’s Affiliates or
Associates prior to the Distribution Date or pursuant to Section 3(a) or Section 22 hereof (the
“Original Rights”) or pursuant to Section 11(i) hereof in connection with an adjustment made with
respect to any Original Rights, (D) securities issued or issuable pursuant to any employment
agreement, arrangement or other understanding between the Company or any Subsidiary of the Company
and any Person or any of such Person’s Affiliates or Associates, (E) securities issuable pursuant
to any employee benefit plan of the Company or any Subsidiary of the Company, or (F) securities
issued to any employee benefit plan of the Company or any Subsidiary of the Company except (1) when
any such issued securities have been subsequently distributed to any beneficiary of any such
employee benefit plan, or (2) when any Person (other than any trustee of such employee benefit plan
who is not a beneficiary of any of the securities issued to such employee benefit plan) or any of
such Person’s Affiliates or Associates, directly or indirectly, has the right to vote such issued
securities (including the right to vote such issued securities pursuant to any agreement,
arrangement or understanding, whether or not in writing); or
(ii) which such Person or any of such Person’s Affiliates or Associates, directly or
indirectly, has the right to vote or dispose of or has “beneficial ownership” of (as
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determined
pursuant to Rule 13d-3 of the General Rules and Regulations under the Exchange Act), including
pursuant to any agreement, arrangement or understanding, whether or not in writing;
provided, however, that a Person shall not be deemed the “Beneficial Owner” of, or
to “beneficially own,” any security under this subparagraph (ii) as a result of (A) an agreement,
arrangement or understanding to vote such security if such agreement, arrangement or understanding:
(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 provisions
of the General Rules and Regulations under the Exchange Act, and (2) is not also then reportable by
such Person on Schedule 13D under the Exchange Act (or any comparable or successor report), (B)
securities issued or issuable pursuant to any employment agreement, arrangement or other
understanding between the Company or any Subsidiary of the Company and any Person or any of such
Person’s Affiliates or Associates, (C) securities issuable pursuant to any employee benefit plan of
the Company or any Subsidiary of the Company, or (D) securities issued to any employee benefit plan
of the Company or any Subsidiary of the Company except (1) when any such issued securities have
been subsequently distributed to any beneficiary of any such employee benefit plan, or (2) when any
Person (other than any trustee of such employee benefit plan who is not a beneficiary of any of the
securities issued to such employee benefit plan) or any of such Person’s Affiliates or Associates,
directly or indirectly, has the right to vote such issued securities (including the right to vote
such issued securities pursuant to any agreement, arrangement or understanding, whether or not in
writing); or
(iii) which are beneficially owned, directly or indirectly, by any other Person (or any
Affiliate or Associate thereof) with which such Person (or any of such Person’s Affiliates or
Associates) has any agreement, arrangement or understanding (whether or not in writing), for the
purpose of acquiring, holding, voting (except pursuant to a revocable proxy as described in the
proviso to subparagraph (ii) of this paragraph (c)) or disposing of any voting securities of the
Company; provided, however, that nothing in this paragraph (c) shall cause a Person
engaged in business as an underwriter of securities to be the “Beneficial Owner” of, or to
“beneficially own,” any securities acquired through such Person’s participation in good faith in a
firm commitment underwriting until the expiration of forty (40) days after the date of such
acquisition; and provided, further, however, that any stockholder of the
Company, with Affiliates, Associates or other Person(s) who may be deemed representatives of it
serving as director(s) or officer(s) of the Company, shall not be deemed to beneficially own
securities held by other Persons as a result of (i) Persons affiliated or otherwise associated with
such stockholder serving as director(s) or officer(s) or taking any action in connection therewith,
(ii) discussing the status of its shares with the Company or other stockholders of the Company
similarly situated or (iii) voting or acting in a manner similar to other stockholder(s) similarly
situated, absent a specific finding by the Board of Directors of an express agreement among such
stockholders to act in concert with one another as stockholders so as to cause, in the good faith
judgment of the Board of Directors, each such stockholder to be the Beneficial Owner of the shares
held by the other stockholder(s).
(d) “Business Day” shall mean any day other than a Saturday, Sunday or a day on which banking
institutions in the State of New York are authorized or obligated by law or executive order to
close.
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(e) “Close of Business” on any given date shall mean 5:00 P.M., New York City time, on such
date; provided, however, that if such date is not a Business Day it shall mean 5:00
P.M., New York City time, on the next succeeding Business Day.
(f) “Common Stock” shall have the meaning set forth in the recital to this Agreement, except
that “Common Stock” when used with reference to any Person other than the Company shall mean the
capital stock of such Person with the greatest voting power, or the equity securities or other
equity interest having power to control or direct the management, of such Person.
(g) “Exempted Person” shall mean any Person who, together with all Affiliates and Associates
of such Person, (i) is the Beneficial Owner of securities (as disclosed in public filings with the
Securities and Exchange Commission on the Rights Dividend Declaration Date), representing 15% or
more of the shares of Common Stock outstanding on the Rights Dividend Declaration Date or 15% or
more of the shares of either the Class A Common Stock or the Class B Common Stock outstanding on
the Rights Dividend Declaration Date or (ii) becomes the Beneficial Owner of securities
representing 15% or more of the shares of Common Stock then outstanding because of a reduction in
the number of outstanding shares of Common Stock then outstanding as a result of the purchase by
the Company or a Subsidiary of the Company of shares of Common Stock or (iii) becomes the
Beneficial Owner of securities representing 15% or more of the shares of either the Class A Common
Stock or the Class B Common Stock then outstanding because of a reduction in the number of
outstanding shares of either the Class A Common Stock or the Class B Common Stock, as the case may
be, then outstanding as a result of the purchase by the Company or a Subsidiary of the Company of
shares of either the Class A Common Stock or the Class B Common Stock, respectively;
provided, however, that any such Person described in clause (ii) or (iii) shall no
longer be deemed to be an Exempted Person and shall be deemed an Acquiring Person if such Person,
together with all Affiliates and Associates of such Person, becomes the Beneficial Owner, at any
time after the date such Person became the Beneficial Owner of (and so long as such Person
continues to be the Beneficial Owner of) 15% or more of the then outstanding shares of Common Stock
or 15% or more of the then outstanding shares of either the Class A Common Stock or the Class B
Common Stock, of additional securities representing 1,000 or more shares of Common Stock, except
(x) pursuant to the exercise of options or warrants to purchase Common Stock outstanding and
beneficially owned by such Person as of the date such Person became the Beneficial Owner of 15% or
more of the then outstanding shares of Common Stock, Class A Common Stock or Class B Common Stock
or as a result of an adjustment to the number of shares of Common Stock for which such options or
warrants are exercisable pursuant to the terms thereof, or (y) as a result of a stock split, stock
dividend or the like. A purchaser, assignee or transferee of the shares of Common Stock (or
warrants or options exercisable for Common Stock) from an Exempted Person shall not thereby become
an Exempted Person, except that a transferee from the estate of an Exempt Person who receives
Common Stock as a bequest or inheritance from an Exempt Person shall be an Exempt Person so long as
such Person continues to be the Beneficial Owner of 15% or more of the then outstanding shares of
Common Stock or 15% or more of the then outstanding shares of either the Class A Common Stock or
the Class B Common Stock.
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(h) “Person” shall mean any individual, firm, corporation, limited liability company,
partnership or other entity, and shall include any successor (by merger or otherwise) thereof or
thereto.
(i) “Preferred Stock” shall mean shares of Series A Junior Participating Preferred Stock, par
value $0.01 per share, of the Company, and, to the extent that there are not a sufficient number of
shares of Series A Junior Participating Preferred Stock authorized to permit the full exercise of
the Rights, any other series of Class B Preferred Stock, par value $0.01 per share, of the Company
designated for such purpose containing terms substantially similar to the terms of the Series A
Junior Participating Preferred Stock.
(j) “Section 11(a)(ii) Event” shall mean any event described in Section 11(a)(ii) hereof.
(k) “Section 13 Event” shall mean any event described in clauses (x), (y) or (z) following any
event described in clause (1) or (2) of Section 13(a) hereof.
(l) “Stock 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.
(m) “Subsidiary” shall mean, with reference to any Person, any corporation of which an amount
of voting securities sufficient to elect at least a majority of the directors of such corporation
is beneficially owned, directly or indirectly, by such Person or otherwise controlled by such
Person.
(n) “Triggering Event” shall mean any Section 11(a)(ii) Event or any Section 13 Event.
Section 2. Appointment of Rights Agent. The Company hereby appoints the Rights Agent to act as
rights agent for the Company in accordance with the terms and conditions hereof, and the Rights
Agent hereby accepts such appointment. The Company may from time to time appoint such Co-Rights
Agents as it may deem necessary or desirable. The Rights Agent shall have no duty to supervise,
and in no event shall be liable for, the acts or omissions of any such Co-Rights Agent.
Section 3. Issue of Rights Certificates.
(a) Until the earlier of (i) the Close of Business on the tenth day after the Stock
Acquisition Date (or, if the tenth day after the Stock 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 the Board of Directors of the Company shall determine) after
the earlier of (A) the date that a tender offer or exchange offer by any Person (other than any
Exempted Person, the Company, any Subsidiary of the Company, any employee benefit plan of the
Company or of any Subsidiary of the Company, or any Person organized, appointed or established by
the Company for or pursuant to the terms of any such plan) is commenced within
the meaning of Rule 14d-2(a) of the General Rules and Regulations under the Exchange Act (or
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any successor rule) or (B) the date upon which the first pre-tender offer commencement
communication is made publicly pursuant to Rule 14d-2(b) of the General Rules and Regulations under
the Exchange Act (or any successor rule), if upon consummation thereof, such Person would be the
Beneficial Owner of 15% or more of the shares of Common Stock then outstanding or 15% or more of
the shares of either the Class A Common Stock or the Class B Common Stock then outstanding (the
earlier of clauses (i) and (ii) being herein referred to as the “Distribution Date”), (x) the Class
A Rights will be evidenced (subject to the provisions of paragraph (b) of this Section 3) by the
certificates for the Class A Common Stock registered in the names of the holders of the Class A
Common Stock (which certificates for Class A Common Stock shall be deemed also to be certificates
for Class A Rights), and the Class B Rights will be evidenced (subject to the provisions of
paragraph (b) of this Section 3) by the certificates for the Class B Common Stock registered in the
names of the holders of the Class B Common Stock (which certificates for Class B Common Stock shall
be deemed also to be certificates for Class B Rights), and, in each such case, not by separate
certificates, and (y) the Rights will be transferable only in connection with the transfer of
Common Stock (including a transfer to the Company). 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 and provided with all necessary
information, send by first-class, insured, postage prepaid mail, to each record holder of the
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, or the transfer agent or registrar for the Common Stock, one
or more rights certificates, in substantially the forms attached hereto as Exhibit A (the “Rights
Certificates”), evidencing one Class A Right and one Class B Right for each share of Class A Common
Stock and each share of Class B Common Stock, respectively, 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(p) hereof, 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 and after the
Distribution Date, the Rights will be evidenced solely by such Rights Certificates, and the Rights
will solely be transferable separately from the transfer of Common Stock. The Company shall
promptly notify the Rights Agent in writing upon the occurrence of the Distribution Date and, if
such notification is given orally, the Company shall confirm same in writing on or prior to the
Business Day next following. Until such notice is received by the Rights Agent, the Rights Agent
may presume conclusively for all purposes that the Distribution Date has not occurred.
(b) As promptly as practicable following the Record Date, the Company will send a copy of a
Summary of Rights, in substantially the form attached hereto as Exhibit B (the “Summary of
Rights”), by first-class, postage prepaid mail, to each record holder of the 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 or the transfer agent or registrar for the Common Stock.. With respect to certificates for
the Common Stock outstanding as of the Close of Business on the Record Date, until the Distribution
Date, the Rights will be evidenced by such certificates for the Common Stock and the registered
holders of the Common Stock shall also be the registered holders of the associated Rights. Until
the earlier of the Distribution Date or the Expiration Date
(as such term is defined in Section 7 hereof), the transfer of any certificates representing
shares
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of
Common Stock in respect of which Rights have been issued shall also constitute the
transfer of the Rights associated with such shares of Common Stock represented thereby.
(c) Rights shall be issued in respect of all shares of Common Stock which are issued (whether
originally issued or from the Company’s treasury) on or after the Record Date but prior to the
earlier of the Distribution Date or the Expiration Date. Certificates representing such shares of
Common Stock shall also be deemed to be certificates for Rights, and shall bear the form of the
following legend, in quotation (the “Rights Legend”):
“This certificate also evidences and entitles the holder hereof to
certain Rights as set forth in the Rights Agreement, executed by the
parties thereto on April 11, 2007 (the “Rights Agreement”), between Advanta Corp. (the “Company”)
and Mellon Investor Services LLC (the “Rights Agent”), the terms of
which are hereby incorporated herein by reference and a copy of
which is on file at the principal executive office of the Company.
Under certain circumstances, as set forth in the Rights Agreement,
such Rights will be evidenced by separate certificates and will no
longer be evidenced by this certificate. The Company will mail to
the holder of this certificate a copy of the Rights Agreement, as in
effect on the date of mailing, without charge promptly 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.”
Certificates representing shares of Common Stock issued prior to April 11, 2007 shall also be
deemed to be certificates evidencing and entitling the holder to all benefits and rights
attributable to Rights declared and issued hereunder, and shall be deemed to bear the Rights Legend
above and such Rights Legend shall amend and restate any legend that was previously affixed to such
certificates pursuant to the terms of that certain Rights Agreement, dated as of March 14, 1997,
between the Company and the predecessor to the Rights Agent. With respect to all such certificates
containing the Rights Legend, until the earlier of (i) the Distribution Date or (ii) the Expiration
Date, the Rights associated with the Common Stock represented by such certificates whether or not
containing the Rights Legend shall be evidenced by such certificates alone and registered holders
of Common Stock shall also be the registered holders of the associated Rights, and the transfer of
any of such certificates shall also constitute the transfer of the Rights associated with the
Common Stock represented by such certificates. In the event that the Company purchases or acquires
any Common Stock after the Record Date but prior to the Distribution Date, any Rights associated
with such Common Stock shall be deemed cancelled and retired so that the Company shall not be
entitled to exercise any Rights associated with the Common Stock which are no longer outstanding.
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Section 4. Form of Rights Certificates.
(a) The Rights Certificates (and the forms of election to purchase and of assignment to be
printed on the reverse thereof) shall each be in substantially the forms attached hereto as Exhibit
A and may have such marks of identification or designation and such legends, summaries or
endorsements printed thereon as the Company may deem appropriate (but which do not affect the
rights, duties or responsibilities of the Rights Agent) and as are not inconsistent with the
provisions of this Agreement, or as may be required to comply with any applicable law or with any
rule or regulation made pursuant thereto or with any rule or regulation of any stock exchange on
which the Rights may from time to time be listed, or to conform to usage. Subject to the
provisions of Section 11 and Section 22 hereof, the Rights Certificates, whenever distributed,
shall be dated as of the date upon which the shares of Common Stock to which they were attached
were issued (but no earlier than the Record Date), and on their face shall entitle the holders
thereof to purchase such number of one ten-thousandths of a share of Preferred Stock as shall be
set forth therein at the price set forth therein (such exercise price per one ten-thousandth of a
share, the “Purchase Price”), but the amount and type of securities purchasable upon the exercise
of each Right and the Purchase Price thereof shall be subject to adjustment as provided herein.
(b) Any 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 Board of Directors of the Company has determined is part of a plan, arrangement
or understanding which has as a primary purpose or effect avoidance of Section 7(e) hereof, and any
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 such Agreement.”
Section 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 President, its Vice Chairman or its Vice President and by
its Treasurer, its Assistant Treasurer, its Secretary or its Assistant Secretary, either manually
or by facsimile signature, and shall have affixed thereto the Company’s seal or a facsimile thereof
which shall be attested by the Secretary or an Assistant Secretary of the Company, either manually
or by facsimile signature. The Rights Certificates shall be manually
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countersigned by the Rights Agent, and shall not be valid for any purpose unless so
countersigned. In case any officer of the Company who shall have signed any of the Rights
Certificates shall cease to be such officer of the Company before countersignature by the Rights
Agent and issuance and delivery by the Company, such Rights Certificates, nevertheless, may be
countersigned by the Rights Agent and issued and delivered by the Company with the same force and
effect as though the Person who signed such Rights Certificates had not ceased to be such officer
of the Company; and any Rights Certificates may be signed on behalf of the Company by any Person
who, at the actual date of the execution of such Rights Certificate, shall be a proper officer of
the Company to sign such Rights Certificate, although at the date of the execution of this Rights
Agreement any such Person was not such an officer.
(b) Following the Distribution Date, receipt by the Rights Agent of notice to that effect and
all other relevant information referred to in Section 3(a), the Rights Agent shall keep or cause to
be kept, at its office designated for such purpose, books for registration and transfer of the
Rights Certificates issued hereunder. Such books shall show the names and addresses of the
respective holders of the Rights Certificates, the number of Rights evidenced on its face by each
of the Rights Certificates and the date of each of the Rights Certificates.
Section 6. Transfer, Split Up, Combination and Exchange of Rights Certificates; Mutilated,
Destroyed, Lost or Stolen Rights Certificates.
(a) Subject to the provisions of Section 4(b), Section 7(e) and Section 14 hereof, at any time
after the Close of Business on the Distribution Date, and at or prior to the Close of Business on
the Expiration Date, any Rights Certificate or Certificates (other than Rights Certificates
representing Rights that have become null and void pursuant to Section 7(e) hereof or that have
been exchanged pursuant to Section 27 hereof) may be transferred, split up, combined or exchanged
for another Rights Certificate or Certificates, entitling the registered holder to purchase a like
number of one ten-thousandths of a share of Preferred Stock (or, following a Triggering Event,
Common Stock, other securities, cash or other assets, as the case may be) as the Rights Certificate
or Certificates surrendered then entitled such holder (or former holder in the case of a transfer)
to purchase. Any registered holder desiring to transfer, split up, combine or exchange any Rights
Certificate or Certificates shall make such request in writing delivered to the Rights Agent, and
shall surrender the Rights Certificate or Certificates to be transferred, split up, combined or
exchanged at the office or offices of the Rights Agent designated for such purpose. The Rights
Certificates are transferable only on the registry books of the Rights Agent. 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 thereof shall have (i)
completed and signed the certificate contained in the form of assignment on the reverse side of
such Rights Certificate, (ii) provided such additional evidence of the identity of the Beneficial
Owner (or former Beneficial Owner) thereof and of the Rights evidenced thereby and the Affiliates
or Associates of such Beneficial Owner (or former Beneficial Owner) as the Company or the Rights
Agent shall reasonably request and (iii) paid a sum sufficient to cover any tax or charge that may
be imposed in connection with any transfer, split up, combination or exchange of Rights
Certificates as required by Section 9(e) hereof. Thereupon the Rights Agent shall, subject to
Section 4(b), Section 7(e) and Section 14 hereof, countersign and deliver to the Person entitled
thereto a Rights Certificate or Rights Certificates, as the case may be, as so requested,
registered in such name or names as may be designated by
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the surrendering registered holder. The Rights Agent shall promptly forward any such sum
collected by it to the Company or to such Persons as the Company shall specify by written notice.
The Rights Agent shall have no duty or obligation under this Section unless and until it is
satisfied that all such taxes and/or charges have been paid.
(b) Upon receipt by the Company and the Rights Agent of evidence 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 execute and deliver a new Rights Certificate of like tenor to the
Rights Agent for countersignature and delivery to the registered owner in lieu of the Rights
Certificate so lost, stolen, destroyed or mutilated.
Section 7. Exercise of Rights; Purchase Price; Expiration Date of Rights.
(a) Subject to Section 7(e) hereof, the registered holder of any Rights Certificate may
exercise the Rights evidenced thereby (except as otherwise provided herein including, without
limitation, the restrictions on exercisability set forth in Section 9(c), Section 11(a)(iii) and
Section 23(a) hereof) in whole or in part at any time after the Distribution Date upon surrender of
the Rights Certificate, with the form of election to purchase and the certificate 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 aggregate Purchase Price with respect to the total
number of one ten-thousandths of a share of Preferred Stock (or other securities, cash or other
assets, as the case may be) as to which such surrendered Rights are then exercisable, and an amount
equal to any tax or charge to be paid under Section 9(e) hereof, by certified check, cashier’s
check, bank draft or money order payable to the order of the Company, at or prior to the earlier of
(i) the Close of Business on April 11, 2017 (the “Final Expiration Date”), or (ii) the time at
which the Rights are redeemed as provided in Section 23 hereof (the earlier of (i) and (ii) being
herein referred to as the “Expiration Date”). Except for those provisions herein which expressly
survive the termination of this Agreement, this Agreement shall terminate at such time as the
Rights are no longer exercisable hereunder.
(b) The
Purchase Price for each one ten-thousandth of a share of Preferred Stock pursuant to
the exercise of a Right shall initially be $175.00, and shall be subject to adjustment from time
to time as provided in Sections 11 and 13(a) 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 and the certificate duly executed, accompanied by payment, with respect to
each Right so exercised, of the Purchase Price per one ten-thousandth of a share of Preferred Stock
(or other shares, securities, cash or other assets, as the case may be) to be purchased as set
forth below and an amount equal to any applicable tax or charge required to be paid under Section
9(e) hereof, by certified check, cashier’s check, bank draft or money order payable to the order of
the Company, the Rights Agent shall, subject to Section 20(k) hereof, thereupon promptly (i) (A)
requisition from any transfer agent of the shares of Preferred Stock (or make available, if the
Rights Agent is the transfer agent for such shares) certificates for the
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total number of one ten-thousandths of a share of Preferred Stock 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 shares of Preferred Stock issuable
upon exercise of the Rights hereunder with a depositary agent, requisition from the depositary
agent depositary receipts representing such number of one ten-thousandths of a share of Preferred
Stock as are to be purchased (in which case certificates for the shares of Preferred Stock
represented by such receipts shall be deposited by the transfer agent with the depositary agent)
and the Company shall direct the depositary agent to comply with such request, (ii) requisition
from the Company the amount of cash, if any, to be paid in lieu 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) after receipt
thereof, deliver such cash, if any, to or upon the order of the registered holder of such Rights
Certificate. The payment of the Purchase Price (as such amount may be reduced pursuant to Section
11(a)(iii) hereof) shall be made in cash or by wire transfer, certified bank check or bank draft
payable to the order of the Company. In the event that the Company is obligated to issue other
securities (including Common Stock) of the Company, pay cash and/or distribute other property
pursuant to Section 11(a) hereof, the Company will make all arrangements necessary so that such
other securities, cash and/or other property are available for distribution by the Rights Agent, if
and when appropriate. The Company reserves the right to require prior to the occurrence of a
Triggering Event that, upon any exercise of Rights, a number of Rights be exercised so that only
whole shares of Preferred Stock would be issued.
(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 and delivered to, or upon the order of,
the registered holder of such Rights Certificate or to his duly authorized assigns, registered in
such name or names as may be designated by such holder, 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 Section 11(a)(ii) Event or a Section 13 Event, any Rights beneficially owned by (i)
an Acquiring Person or an Associate or Affiliate of an Acquiring Person, (ii) a transferee of an
Acquiring Person (or of any such Associate or Affiliate) who becomes a transferee after the
Acquiring Person becomes such, or (iii) a transferee of an Acquiring Person (or of any such
Associate or Affiliate) who becomes a transferee prior to or concurrently with the Acquiring Person
becoming such and receives such Rights pursuant to either (A) a transfer (whether or not for
consideration) from the Acquiring Person to holders of equity interests in such Acquiring Person or
to any Person with whom the Acquiring Person has any continuing agreement, arrangement or
understanding regarding the transferred Rights or (B) a transfer which the Board of Directors of
the Company has determined is part of a plan, arrangement or understanding the primary purpose or
effect of which is to avoid this Section 7(e), shall become null and void without any further
action and no holder of such Rights shall have any rights whatsoever with respect to such Rights,
whether under any provision of this Agreement or otherwise. The Company shall use all reasonable
efforts to insure that the provisions of this Section 7(e) and Section 4(b) hereof are complied
with but shall have no liability to any holder of Rights Certificates or other Persons as a result
of its failure to make any
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determinations with respect to an Acquiring Person or its Affiliates, Associates or
transferees hereunder. The Company shall give the Rights Agent written notice of the identity of
any such Acquiring Person, Associate or Affiliate, or the nominee of any of the foregoing, and the
Rights Agent may rely on such notice in carrying out its duties under this Agreement and shall be
deemed not to have any knowledge of the identity of any such Acquiring Person, Associate or
Affiliate, or the nominee of any of the foregoing unless and until it shall have received notice.
(f) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor
the Company shall be obligated to undertake any action with respect to a registered holder of
Rights or other securities upon the occurrence of any purported exercise as set forth in this
Section 7 unless such registered holder shall have (i) properly 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) thereof and of the Rights evidenced
thereby and of the Affiliates or Associates of such Beneficial Owner (or former Beneficial Owner as
the Company or the Rights Agent shall reasonably request.
Section 8. Cancellation and Destruction of Rights Certificates. All Rights Certificates
surrendered for the purpose of exercise, transfer, split up, combination or exchange shall, if
surrendered to the Company or any of its agents, be delivered to the Rights Agent for cancellation
or in cancelled form, or, if surrendered to the Rights Agent, shall be cancelled by it, and no
Rights Certificates shall be issued in lieu thereof except as expressly permitted by any of the
provisions of this Agreement. The Company shall deliver to the Rights Agent for cancellation and
retirement, and the Rights Agent shall so cancel and retire, any other Rights Certificate purchased
or acquired by the Company otherwise than upon the exercise thereof. The Rights Agent shall
deliver all cancelled Rights Certificates to the Company, or shall, at the written request of the
Company, destroy such cancelled Rights Certificates, and in such case shall deliver a certificate
of destruction thereof to the Company.
Section 9. Reservation and Availability of Capital Stock.
(a) The Company covenants and agrees that it will cause to be reserved and kept available out
of its authorized and unissued shares of Preferred Stock (and, following the occurrence of a
Triggering Event, out of its authorized and unissued shares of Common Stock and/or other securities
or out of its authorized and issued shares held in its treasury), the number of shares of Preferred
Stock (and, following the occurrence of a Triggering Event, Common Stock and/or other securities)
that, as provided in this Agreement, including Section 11(a)(iii) hereof, will be sufficient to
permit the exercise in full of all outstanding Rights in accordance with this Agreement. The
Company will take all such action as may be necessary to ensure that all Preferred Stock delivered
upon exercise of Rights shall, at the time of delivery of the certificates for such Preferred Stock
(subject to payment of the Purchase Price), be duly and validly authorized and issued and fully
paid and nonassessable shares.
(b) So long as the shares of Preferred Stock (and, following the occurrence of a Triggering
Event, Common Stock and/or other securities) issuable and deliverable upon the exercise of the
Rights may be listed on any national securities exchange, the Company shall use
its best efforts to cause, from and after such time as the Rights become exercisable (but only
to
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the extent that the Company’s Board of Directors determines that it is reasonably likely that
the Rights will be exercised), all the Company’s capital stock and other securities 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 Section 11(a)(ii) Event on which the consideration to
be delivered by the Company upon exercise of the Rights has been determined in accordance with
Section 11(a)(iii) hereof, a registration statement under the Securities Act of 1933, as amended
(the “Act”), with respect to the securities purchasable upon exercise of the Rights on an
appropriate form, (ii) cause such registration statement to become effective as soon as practicable
after such filing, and (iii) cause such registration statement to remain effective (with a
prospectus at all times meeting the requirements of the Act) until the earlier of (A) the date as
of which the Rights are no longer exercisable for such securities, and (B) the date of the
expiration of the Rights. 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. The Company may, by issuing a public announcement,
temporarily suspend, for a period of time 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 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. The Company shall notify the Rights Agent whenever it makes a
public announcement pursuant to this Section 9(c) and give the Rights Agent a copy of such
announcement. In addition, if the Company shall determine that a registration statement is
required following the Distribution Date, the Company may temporarily suspend the exercisability of
the Rights until such time as a registration statement has been declared effective.
Notwithstanding any provision of this Agreement to the contrary, the Rights shall not be
exercisable in any jurisdiction if the requisite qualification in such jurisdiction shall not have
been obtained, the exercise thereof shall not be permitted under applicable law or a registration
statement shall not have been declared effective.
(d) The Company covenants and agrees that it will take all such action as may be necessary to
ensure that all one ten-thousandths of a share of Preferred Stock (and, following the occurrence of
a Triggering Event, Common Stock and/or other securities) delivered upon exercise of Rights shall,
at the time of delivery of the certificates for such shares (or Units) (subject to payment of the
Purchase Price and compliance with all other applicable provisions of this Agreement), be duly and
validly authorized and issued and fully paid and nonassessable.
(e) The Company further covenants and agrees that it will pay when due and payable any and all
federal and state transfer taxes and charges which may be payable in respect of the issuance or
delivery of the Rights Certificates and of any certificates for a number of one ten-thousandths of
a share of Preferred Stock (or Common Stock and/or other securities, as the case may be) upon the
exercise of Rights. The Company shall not, however, be required to pay any transfer tax or charge
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 a number of one ten-thousandths of a share of Preferred
Stock (or Common Stock and/or other securities, as the case
may be) in respect of a name other than that of, the registered holder of the Rights
Certificates
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evidencing Rights surrendered for exercise or to issue or deliver any certificates for
a number of one ten-thousandths of a share of Preferred Stock (or Common Stock and/or other
securities, as the case may be) in a name other than that of the registered holder upon the
exercise of any Rights until such tax or charge shall have been paid (any such tax or charge being
payable by the holder of such Rights Certificate at the time of surrender) or until it has been
established to the Company’s or the Rights Agent’s reasonable satisfaction that no such tax or
charge is due.
Section 10. Preferred Stock Record Date. Each Person in whose name any certificate for a number of
one ten-thousandths of a share of Preferred Stock (or Common Stock and/or other securities, as the
case may be) is issued upon the exercise of Rights shall for all purposes be deemed to have become
the holder of record of such fractional shares of Preferred Stock (or Common Stock and/or other
securities, as the case may be) represented thereby on, and such certificate shall be dated, the
date upon which the Rights Certificate evidencing such Rights was duly surrendered and payment of
the Purchase Price (and all applicable transfer taxes or charges) was duly made; provided,
however, that if the date of such surrender and payment is a date upon which the Preferred
Stock (or Common Stock and/or other securities, as the case may be) transfer books of the Company
are closed, such Person shall be deemed to have become the record holder of such shares (fractional
or otherwise) on, and such certificate shall be dated, the next succeeding Business Day on which
the Preferred Stock (or Common Stock and/or other securities, as the case may be) 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 stockholder of the Company with respect
to shares for which the Rights shall be exercisable, including, without limitation, the right to
vote, to receive dividends or other distributions or to exercise any preemptive rights, and shall
not be entitled to receive any notice of any proceedings of the Company, except as provided herein.
Section 11. Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. The
Purchase Price, the number and kind of shares covered by each Right and the number of Rights
outstanding are subject to adjustment from time to time as provided in this Section 11.
(a) (i) In the event the Company shall at any time after the date of this Agreement (A)
declare a dividend on the Preferred Stock payable in shares of Preferred Stock, (B) subdivide the
outstanding Preferred Stock, (C) combine the outstanding Preferred Stock into a smaller number of
shares, or (D) issue any shares of its capital stock in a reclassification of the Preferred Stock
(including any such reclassification in connection with a consolidation or merger in which the
Company is the continuing or surviving corporation), except as otherwise provided in this Section
11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such
dividend or of the effective date of such subdivision, combination or reclassification, and the
number and kind of shares of Preferred Stock or capital stock, as the case may be, issuable on such
date, shall be proportionately adjusted so that the holder of any Right exercised after such time
shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate
number and kind of shares of Preferred Stock or capital stock, as the case may be, which, if such
Right had been exercised immediately prior to such date and at a
time when the Preferred Stock transfer books of the Company were open, such holder would have
owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision,
combination or reclassification. If an event occurs which would require an
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adjustment under both
this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this Section
11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to
Section 11(a)(ii) hereof.
(ii) In the event any Person (other than an Exempted Person, the Company, any Subsidiary of the
Company, any employee benefit plan of the Company or of any Subsidiary of the Company, or any
Person organized, appointed or established by the Company for or pursuant to the terms of any such
plan), alone or together with its Affiliates and Associates, shall, at any time after the Rights
Dividend Declaration Date, become the Beneficial Owner of 15% or more of the shares of Common Stock
then outstanding or 15% or more of the shares of either the Class A Common Stock or the Class B
Common Stock then outstanding, unless the event causing the 15% threshold to be crossed is a
transaction set forth in Section 13(a) hereof, then, promptly following the occurrence of such
event, proper provision shall be made so that (A) each holder of a Class A Right (except as
provided below and in Section 7(e) hereof) shall thereafter have the right to receive, upon
exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement,
in lieu of a number of one ten-thousandths of a share of Preferred Stock, such number of shares of
Class A Common Stock of the Company as shall equal the result obtained by (x) multiplying the then
current Purchase Price by the then number of one ten-thousandths of a share of Preferred Stock for
which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii)
Event, and (y) dividing that product (which, following such first occurrence, shall thereafter be
referred to as the “Purchase Price” for each Right and for all purposes of this Agreement) by 50%
of the current market price (determined pursuant to Section 11(d) hereof) per share of Class A
Common Stock on the date of such first occurrence (such number of shares, the “Class A Adjustment
Shares”) and (B) each holder of a Class B Right (except as provided below and in Section
7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at the then current
Purchase Price in accordance with the terms of this Agreement, in lieu of a number of one
ten-thousandths of a share of Preferred Stock, such number of shares of Class B Common Stock of the
Company as shall equal the result obtained by (X) multiplying the then current Purchase Price by
the then number of one ten-thousandths of a share of Preferred Stock for which a Right was
exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, and (Y)
dividing that product (which, following such first occurrence, shall thereafter be referred to as
the “Purchase Price” for each Right and for all purposes of this Agreement) by 50% of the current
market price (determined pursuant to Section 11(d) hereof) per share of Class B Common Stock on the
date of such first occurrence (such number of shares, the “Class B Adjustment Shares” and, together
with the Class A Adjustment Shares, the “Adjustment Shares”).
(iii) 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 in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company shall
(A) determine the value of the Adjustment Shares issuable upon the exercise of a Class A Right or
Class B Right, as the case may be (the “Current Value”), and (B)
with respect to each Right (subject to Section 7(e) hereof), make adequate provision to
substitute for the Adjustment Shares, upon the exercise of a Right and payment of the applicable
Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Stock or other equity
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securities of the Company (including, without limitation, shares, or units of shares, of preferred
stock, such as the Preferred Stock, which the Board of Directors of the Company has deemed to have
essentially the same value or economic rights as shares of Common Stock (such shares of preferred
stock being referred to as “Common Stock Equivalents”)), (4) debt securities of the Company, (5)
other assets, or (6) any combination of the foregoing, having an aggregate value equal to the
Current Value (less the amount of any reduction in the Purchase Price), where such aggregate value
has been determined by the Board based upon the advice of a nationally recognized investment
banking firm selected by the Board; provided, however, that 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 Section 11(a)(ii) 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 Purchase Price, shares of Class A Common Stock or Class B Common Stock, as the case may be, (to
the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate
value equal to the Spread. For purposes of the preceding sentence, the term “Spread” shall mean the
excess of (i) the Current Value over (ii) the Purchase Price. If the Board of Directors of the
Company determines in good faith that it is likely that sufficient additional shares of Common
Stock could be authorized for issuance upon exercise in full of the Rights, the thirty-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 (such thirty-day period, as it may be extended, is herein
called the “Substitution Period”). To the extent that action is to be taken pursuant to the first
and/or third sentences of this Section 11(a)(iii), the Company (1) shall provide, subject to
Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (2) may
suspend the exercisability of the Rights until the expiration of the Substitution Period in order
to seek such stockholder approval for such authorization of additional shares 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 (with prompt written notice
thereof to the Rights Agent). For purposes of this Section 11(a)(iii), the value of each
Adjustment Share shall be the Current Market Price per share of the Class A Common Stock or the
Class B Common Stock, as the case may be, on the Section 11(a)(ii) Trigger Date and the per share
or per unit value of any Common Stock Equivalent shall be deemed to equal the Current Market Price
per share of the Class A Common Stock or Class B Common Stock, as the case may be, on such date.
(b) In case the Company shall fix a record date for the issuance of rights, options or
warrants to all holders of Preferred Stock entitling them to subscribe for or purchase (for a
period expiring within forty-five (45) calendar days after such record date) Preferred Stock (or
shares having the same rights, privileges and preferences as the shares of Preferred Stock
(“equivalent preferred stock”)) or securities convertible into Preferred Stock or equivalent
preferred stock at a price per share of Preferred Stock or per share of equivalent preferred stock
(or having a conversion price per share, if a security convertible into Preferred Stock or
equivalent preferred stock) less than the current market price (as determined pursuant to Section
11(d) hereof) per share of Preferred Stock on such record date, the Purchase Price to be in effect
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after such record date shall be determined by multiplying the Purchase Price in effect immediately
prior to such record date by a fraction, the numerator of which shall be the number of shares of
Preferred Stock outstanding on such record date, plus the number of shares of Preferred Stock which
the aggregate offering price of the total number of shares of Preferred Stock and/or equivalent
preferred stock so to be offered (and/or the aggregate initial conversion price of the convertible
securities so to be offered) would purchase at such current market price, and the denominator of
which shall be the number of shares of Preferred Stock outstanding on such record date, plus the
number of additional shares of Preferred Stock and/or equivalent preferred stock to be offered for
subscription or purchase (or into which the convertible securities so to be offered are initially
convertible). In case such subscription price may be paid by delivery of consideration part or all
of which may be in a form other than cash, the value of such consideration shall be as determined
in good faith by the Board of Directors of the Company, whose determination shall be described in a
statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of
the Rights. Shares of Preferred Stock owned by or held for the account of the Company shall not be
deemed outstanding for the purpose of any such computation. Such adjustment shall be made
successively whenever such a record date is fixed, and in the event that such rights or warrants
are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then
be in effect if such record date had not been fixed.
(c) In case the Company shall fix a record date for a distribution to all holders of Preferred
Stock (including any such distribution made in connection with a consolidation or merger in which
the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular
quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other
than a dividend payable in Preferred Stock, but including any dividend payable in stock other than
Preferred Stock) or subscription rights or warrants (excluding those referred to in Section 11(b)
hereof), the Purchase Price to be in effect after such record date shall be determined by
multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the
numerator of which shall be the current market price (as determined pursuant to Section 11(d)
hereof) per share of Preferred Stock on such record date, less the fair market value (as determined
in good faith by the Board of Directors of the Company, whose determination shall be described in a
statement filed with the Rights Agent) of the portion of the cash, assets or evidences of
indebtedness so to be distributed or of such subscription rights or warrants applicable to a share
of Preferred Stock and the denominator of which shall be such current market price (as determined
pursuant to Section 11(d) hereof) per share of Preferred Stock. Such adjustments shall be made
successively whenever such a record date is fixed, and in the event that such distribution is not
so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in
effect if such record date had not been fixed.
(d) (i) For the purpose of any computation hereunder, other than computations made pursuant to
Section 11(a)(iii) hereof, the Current Market Price per share of Common Stock on any date shall be
deemed to be the average of the daily closing prices per share of such Common Stock 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 Market Price per share of Common Stock on any date shall be deemed to be the average
of the daily closing prices per share of such Common Stock for the ten (10) consecutive Trading
Days immediately following such date; provided, however, that in the event that the
Current
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Market Price per share of the Common Stock is determined during a period following the
announcement by the issuer of such Common Stock of (A) a dividend or distribution on such Common
Stock payable in shares of such Common Stock or securities convertible into shares of such Common
Stock (other than the Rights), or (B) any subdivision, combination or reclassification of such
Common Stock, and the ex-dividend date for such dividend or distribution, or the record date for
such subdivision, combination or reclassification shall not have occurred prior to the commencement
of the requisite thirty (30) Trading Day or ten (10) Trading Day period, as set forth above, then,
and in each such case, the Current Market Price shall be properly adjusted to take into account
ex-dividend trading. 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
shares of such Common Stock are not listed or admitted to trading on the New York Stock Exchange,
as reported in the principal consolidated transaction reporting system with respect to securities
listed on the principal national securities exchange on which the shares of such Common Stock are
listed or admitted to trading or, if the shares of such Common Stock are not listed or admitted to
trading on any national securities exchange, the last quoted price or, if not so quoted, the
average of the high bid and low asked prices in the over-the-counter market, as reported by such
applicable market or such other system then in use, or, if on any such date the shares of such
Common Stock are not quoted by any such organization, the average of the closing bid and asked
prices as furnished by a professional market maker making a market in such Common Stock selected by
the Board of Directors of the Company. If on any such date no market maker is making a market in
such Common Stock, the fair value of such shares on such date as determined in good faith by the
Board shall be used and shall be binding on the Rights Agent. The term “Trading Day” shall mean a
day on which the principal national securities exchange on which the shares of Class A Common Stock
or Class B Common Stock are listed or admitted to trading is open for the transaction of business
or, if the shares of Common Stock are not listed or admitted to trading on any national securities
exchange, a Business Day. If the Common Stock is not publicly held or not so listed or traded,
Current Market Price per share shall mean the fair value per share as determined in good faith by
the Board, whose determination shall be described in a statement filed with the Rights Agent and
shall be conclusive for all purposes.
(ii) For the purpose of any computation hereunder, the Current Market Price per share of
Preferred Stock shall be determined in the same manner as set forth above for the Common Stock in
clause (i) of this Section 11(d) (other than the last sentence thereof). If the Current Market
Price per share of Preferred Stock cannot be determined in the manner provided above or if the
Preferred Stock is not publicly held or listed or traded in a manner described in clause (i) of
this Section 11(d), the Current Market Price per share of Preferred Stock shall be conclusively
deemed to be an amount equal to 10,000 (as such number may be appropriately adjusted for such
events as stock splits, stock dividends and recapitalizations with respect to the Class B Common
Stock occurring after the date of this Agreement) multiplied by the Current Market Price per share
of the Class B Common Stock. If neither the Class B Common Stock nor the Preferred Stock is
publicly held or so listed or traded, Current Market Price per share of the
Preferred Stock 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. For all purposes of this Agreement, the
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Xxxxxxx Xxxxxx Price of a Unit shall be equal to the Current Market Price of one share of Preferred
Stock divided by 10,000.
(e) Anything herein to the contrary notwithstanding, no adjustment in the Purchase Price shall
be required unless such adjustment would require an increase or decrease of at least 1% in the
Purchase Price; provided, however, that any adjustments which by reason of this
Section 11(e) are not required to be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this Section 11 shall be made to the nearest cent or
to the nearest ten-thousandth of a share of Common Stock or other share or one-hundred millionth of
a share of Preferred Stock, as the case may be. Notwithstanding the first sentence of this Section
11(e), any adjustment required by this Section 11 shall be made no later than the earlier of (i)
three (3) years from the date of the transaction which mandates such adjustment, or (ii) the
Expiration Date.
(f) If as a result of an adjustment made pursuant to Section 11(a)(ii) or Section 13(a)
hereof, the holder of any Right thereafter exercised shall become entitled to receive any shares of
capital stock other than Preferred Stock, thereafter the number of such other shares so receivable
upon exercise of any Right and the Purchase 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 Stock contained in Sections 11(a), (b), (c), (e), (g), (h), (i), (j), (k) and (m),
and the provisions of Sections 7, 9, 10, 13 and 14 hereof with respect to the Preferred Stock shall
apply on like terms to any such other shares.
(g) All Rights originally issued by the Company subsequent to any adjustment made to the
Purchase Price hereunder shall evidence the right to purchase, at the adjusted Purchase Price, the
number of one ten-thousandths of a share of Preferred Stock purchasable from time to time hereunder
upon exercise of the Rights, all subject to further adjustment as provided herein.
(h) Unless the Company shall have exercised its election as provided in Section 11(i), upon
each adjustment of the Purchase Price as a result of the calculations made in Sections 11(b) and
(c), each Right outstanding immediately prior to the making of such adjustment shall thereafter
evidence the right to purchase, at the adjusted Purchase Price, that number of one ten-thousandths
of a share of Preferred Stock (calculated to the nearest one-ten millionth) obtained by (i)
multiplying (x) the number of one ten-thousandths of a share covered by a Right immediately prior
to this adjustment, by (y) the Purchase Price in effect immediately prior to such adjustment of the
Purchase Price, and (ii) dividing the product so obtained by the Purchase Price in effect
immediately after such adjustment of the Purchase Price.
(i) The Company may elect on or after the date of any adjustment of the Purchase Price to
adjust the number of Rights, in lieu of any adjustment in the number of one ten-thousandths of a
share of Preferred Stock purchasable upon the exercise of a Right. Each of the Rights outstanding
after the adjustment in the number of Rights shall be exercisable for the number of one
ten-thousandths of a share of Preferred Stock 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
ten-thousandth) obtained by dividing the Purchase Price in effect immediately prior to adjustment
of
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the Purchase Price by the Purchase Price in effect immediately after adjustment of the Purchase
Price. The Company shall make a public announcement (with prompt written notice thereof to the
Rights Agent) of its election to adjust the number of Rights, indicating the record date for the
adjustment, and, if known at the time, the amount of the adjustment to be made. This record date
may be the date on which the Purchase Price is adjusted or any day thereafter, but, if the Rights
Certificates have been issued, shall be at least 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(i), 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 delivered by the Company, and countersigned and delivered by the Rights Agent, in the manner
provided for herein (and may bear, at the option of the Company, the adjusted Purchase Price) and
shall be registered in the names of the holders of record of Rights Certificates on the record date
specified in the public announcement.
(j) Irrespective of any adjustment or change in the Purchase Price or the number of one
ten-thousandths of a share of Preferred Stock issuable upon the exercise of the Rights, the Rights
Certificates theretofore and thereafter issued may continue to express the Purchase Price per one
ten-thousandth of a share and the number of one ten-thousandths of a share which were expressed in
the initial Rights Certificates issued hereunder.
(k) Before taking any action that would cause an adjustment reducing the Purchase Price below
the then stated value, if any, of the number of one ten-thousandths of a share of Preferred Stock
issuable upon exercise of the Rights, the Company shall take any corporate action which may, in the
opinion of its counsel, be necessary in order that the Company may validly and legally issue fully
paid and nonassessable such number of one ten-thousandths of a share of Preferred Stock at such
adjusted Purchase Price.
(l) In any case in which this Section 11 shall require that an adjustment in the Purchase
Price be made effective as of a record date for a specified event, the Company may elect to defer
(with prompt written notice thereof to the Rights Agent) until the occurrence of such event the
issuance to the holder of any Right exercised after such record date the number of one
ten-thousandths of a share of Preferred Stock and other capital stock or securities of the Company,
if any, issuable upon such exercise over and above the number of one ten-thousandths of a share of
Preferred Stock and other capital stock or securities of the Company, if any, issuable upon such
exercise on the basis of the Purchase Price in effect prior to such adjustment; provided,
however, that the Company shall deliver to such holder a due xxxx or other appropriate
instrument evidencing such holder’s right to receive such additional shares (fractional or
otherwise) or securities upon the occurrence of the event requiring such adjustment.
(m) Anything in this Section 11 to the contrary notwithstanding, the Company shall be entitled
to make such reductions in the Purchase Price, in addition to those adjustments
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expressly required
by this Section 11, as and to the extent that in their good faith judgment the Board of Directors
of the Company shall determine to be advisable in order that any (i) consolidation or subdivision
of the Preferred Stock, (ii) issuance wholly for cash of any shares of Preferred Stock at less than
the current market price of such Preferred Stock, (iii) issuance wholly for cash of shares of
Preferred Stock or securities which by their terms are convertible into or exchangeable for shares
of Preferred 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 Stock shall not be
taxable to such stockholders.
(n) Subject to the second to last sentence of this Section 11(n), the Company covenants and
agrees that it shall not, at any time after the Distribution Date, (i) consolidate with any Person
(other than a Subsidiary of the Company in a transaction which complies with Section 11(o) hereof),
(ii) merge with or into any Person (other than a Subsidiary of the Company in a transaction which
complies with Section 11(o) hereof) or (iii) sell or transfer (or permit any Subsidiary to sell or
transfer), in one transaction, or a series of related transactions, assets or earning power
aggregating more than 50% of the assets or earning power of the Company and its Subsidiaries (taken
as a whole) to any Person or Persons (other than the Company and/or any of its Subsidiaries in one
or more transactions each of which complies with Section 11(o) hereof). In addition to the
foregoing covenants, the Company covenants and promises that it shall not, at any time after the
Distribution Date, consummate any consolidation, merger, sale or transfer that is described in
clauses (i), (ii) or (iii) of this Section 11(n), if (x) at the time of or immediately after such
consolidation, merger, sale or transfer, 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 or (y) prior to, simultaneously with
or immediately after such consolidation, merger, sale or transfer, the stockholders of the Person
who constitutes, or would constitute, the “Principal Party” for purposes of Section 13(a) hereof
shall have received a distribution of Rights previously owned by such Person or any of its
Affiliates and Associates. The Company shall not consummate any such consolidation, merger, sale
or transfer unless prior thereto the Company and such Person shall have executed and delivered to
the Rights Agent a supplemental agreement evidencing compliance with this subsection.
(o) The Company covenants and agrees that, after the Distribution Date, it will not, except as
permitted by Sections 23, 26 or 27 hereof, take (or permit any Subsidiary to take) any action if at
the time such action is taken it is reasonably foreseeable that such action will diminish
substantially or otherwise eliminate the benefits intended to be afforded by the Rights.
(p) Anything in this Agreement to the contrary notwithstanding, in the event that the Company
shall at any time after the Rights Dividend Declaration Date and prior to the Distribution Date (i)
declare a dividend on the outstanding shares of Common Stock payable in shares of Common Stock,
(ii) subdivide the outstanding shares of Common Stock, or (iii) combine the outstanding shares of
Common Stock into a smaller number of shares, the number of Rights associated with each share of
Common Stock then outstanding, or issued or delivered thereafter but prior to the Distribution
Date, shall be proportionately adjusted so that the number
of Rights thereafter associated with each share of Common Stock following any such event shall
equal the result obtained by multiplying the number of Rights associated with each share of
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Common
Stock immediately prior to such event by a fraction the numerator which shall be the total number
of shares of Common Stock outstanding immediately prior to the occurrence of the event and the
denominator of which shall be the total number of shares of Common Stock outstanding immediately
following the occurrence of such event.
Section 12. Certificate of Adjusted Purchase Price or Number of Shares. Whenever an adjustment is
made or any event affecting the Rights or their exercisability (including without limitation an
event which causes Rights to become null and void) occurs as provided in Section 11 and Section 13
hereof, the Company shall (a) promptly prepare a certificate setting forth such adjustment or
describing such event, and a brief, reasonably detailed statement of the facts, computations and
methodology accounting for such adjustment or event, (b) promptly file with the Rights Agent, and
with each transfer agent for the Preferred Stock and the Common Stock, a copy of such certificate,
and (c) mail a brief summary thereof to each holder of a Rights Certificate (or, if prior to the
Distribution Date, to each holder of a certificate representing shares of Common Stock) in
accordance with Section 24 and Section 25 hereof. The Rights Agent shall be fully protected in
relying on any such certificate and on any adjustment or statement therein contained and shall have
no duty or liability with respect to, and shall not be deemed to have knowledge of, any adjustment
or any such event unless and until it shall have received such a certificate.
Section 13. Change in Majority of Directors, Consolidation, Merger or Sale or Transfer of
Assets or Earning Power.
(a) In the event that, (1) on or after the date hereof and prior to the Stock Acquisition
Date, there is a change (resulting from a proxy or consent solicitation or an action by written
consent of stockholders, whether or not made pursuant to, and in accordance with, the applicable
provisions of the General Rules and Regulations under the Exchange Act) in a majority of the
directors in office at the time of the commencement of such solicitation, or prior to the time of
such written consent, and the Person who is a participant in such solicitation, or who signed such
consent, has stated (or a majority of the Board of Directors of the Company has determined in good
faith) that such Person (or any of its Affiliates or Associates) intends to take, or may consider
taking, any action which would result in such Person becoming an Acquiring Person or which would
cause the occurrence of a Triggering Event, or (2) on or after the Stock Acquisition Date,
whichever of (1) or (2) first occurs, (x) the Company shall consolidate with, or merge with and
into, any Person (other than a Subsidiary of the Company in a transaction which complies with
Section 11(o) hereof), and the Company shall not be the continuing or surviving corporation of such
consolidation or merger, (y) any Person (other than a Subsidiary of the Company in a transaction
which complies with Section 11(o) hereof) shall consolidate with, or merge with or into, the
Company, and the Company shall be the continuing or surviving corporation of such consolidation or
merger and, in connection with such consolidation or merger, all or part of the outstanding shares
of Common Stock shall be changed into or exchanged for stock or other securities of any other
Person or cash or any other property, or (z) the Company shall sell or otherwise transfer (or one
or more of its Subsidiaries shall sell or otherwise transfer), in one transaction or a series of
related transactions, assets or earning power
aggregating more than 50% of the assets or earning power of the Company and its Subsidiaries
(taken as a whole) to any Person or Persons (other than the Company or any Subsidiary of the
Company in one or more transactions each of which complies with Section 11(o) hereof), then,
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and in
each such case, proper provision shall be made so that: (i) each holder of a Right, except as
provided in Section 7(e) hereof, shall thereafter have the right to receive, upon the exercise
thereof at the then current Purchase Price in accordance with the terms of this Agreement, such
number of validly authorized and issued, fully paid, non-assessable and freely tradeable shares of
Common Stock of the Principal Party (as such term is hereinafter defined), not subject to any
liens, encumbrances, rights of first refusal or other adverse claims, as shall be equal to the
result obtained by (1) multiplying the then current Purchase Price by the number of one
ten-thousandths of a share of Preferred Stock for which a Right is exercisable immediately prior to
the first occurrence of a Section 13 Event (or, if a Section 11(a)(ii) Event has occurred prior to
the first occurrence of a Section 13 Event, multiplying the number of such one ten-thousandths of a
share for which a Right was exercisable immediately prior to the first occurrence of a Section
11(a)(ii) Event by the Purchase Price in effect immediately prior to such first occurrence), and
(2) dividing that product (which, following the first occurrence of a Section 13 Event, shall be
referred to as the “Purchase Price” for each Right and for all purposes of this Agreement) by 50%
of the current market price (determined pursuant to Section 11(d)(i) hereof) per share of the
Common Stock of such Principal Party on the date of consummation of such Section 13 Event; (ii)
such Principal Party shall thereafter be liable for, and shall assume, by virtue of such Section 13
Event, all the obligations and duties of the Company pursuant to this Agreement; (iii) the term
“Company” shall thereafter be deemed to refer to such Principal Party, it being specifically
intended that the provisions of Section 11 hereof shall apply only to such Principal Party
following the first occurrence of a Section 13 Event; (iv) such Principal Party shall take such
steps (including, but not limited to, the reservation of a sufficient number of shares of its
Common Stock) in connection with the consummation of any such transaction as may be necessary to
assure that the provisions hereof shall thereafter be applicable, as nearly as reasonably may be,
in relation to its shares of Common Stock thereafter deliverable upon the exercise of the Rights;
and (v) the provisions of Section 11(a)(ii) hereof shall be of no effect following the first
occurrence of any Section 13 Event.
(b) “Principal Party” shall mean:
(i) in the case of any event described in clause (1) of Section 13(a), the Person (or any of
its Affiliates or Associates) who is a moving or proposing participant in the proxy or consent
solicitation or an action by written consent of stockholders, that effectuates the change in a
majority of the directors in office at the time of the commencement of such solicitation, or prior
to the time of such written consent, and who has stated (or a majority of the Board of Directors of
the Company has determined in good faith) that such Person (or any of its Affiliates or Associates)
intends to take, or may consider taking, any action which would result in such Person becoming an
Acquiring Person or which would cause the occurrence of a Triggering Event.
(ii) in the case of any event described in clause (2) of Section 13(a) and any transaction
described in clause (x) or (y) of Section 13(a), the Person that is the issuer of any securities
into which shares of Common Stock of the Company are converted in such merger
or consolidation, and if no securities are so issued, the Person that is the other party to
such merger or consolidation; and
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(iii) in the case of any event described in clause (2) of Section 13(a) and any transaction
described in clause (z) of Section 13(a), the Person that is the party receiving the greatest
portion of the assets or earning power transferred pursuant to such transaction or transactions;
provided, however, that in any such case, (1) if the Common Stock of such Person is
not at such time and has not been continuously over the preceding twelve-month period registered
under Section 12 of the Exchange Act, and such Person is a direct or indirect Subsidiary of another
Person the Common Stock of which is and has been so registered, “Principal Party” shall refer to
such other Person; and (2) in case such Person is a Subsidiary, directly or indirectly, of more
than one Person, the Common Stocks of two or more of which are and have been so registered,
“Principal Party” shall refer to whichever of such Persons is the issuer of the Common Stock having
the greatest aggregate market value.
(c) The Company shall not consummate any consolidation, merger, sale or transfer with any
Principal Party described in Section 13(b) hereof, unless such Principal Party shall have a
sufficient number of authorized shares of its Common Stock, which have not been issued or reserved
for issuance, to permit the exercise in full of the Rights in accordance with this Section 13 and
unless prior thereto the Company and such Principal Party shall have executed and delivered to the
Rights Agent a supplemental agreement providing for the terms set forth in paragraphs (a) and (b)
of this Section 13 and further providing that, as soon as practicable after the date of any
consolidation, merger, sale or transfer mentioned in paragraph (a) of this Section 13, the
Principal Party will:
(i) prepare and file a registration statement under the Act, with respect to the Rights and
the securities purchasable upon exercise of the Rights on an appropriate form, and will use its
best efforts to cause such registration statement to (A) become effective as soon as practicable
after such filing and (B) remain effective (with a prospectus at all times meeting the requirements
of the Act) until the Expiration Date;
(ii) will deliver to holders of the Rights historical financial statements for the Principal
Party and each of its Affiliates which comply in all respects with the requirements for
registration on Form 10 under the Exchange Act; and
(iii) in the case of any event described in clause (2) of Section 13(a) and any transaction
described in clause (z) of Section 13(a), assume all obligations under this Agreement to allow for
the full exercise of the Rights.
The provisions of this Section 13 shall similarly apply to successive changes in a majority of the
directors described in clause (1) of Section 13(a) and to successive mergers or consolidations or
sales or other transfers described in clauses (x), (y) or (z) of Section 13(a). In the event that
a Section 13 Event shall occur at any time after the occurrence of a Section 11(a)(ii) Event, the
Rights which have not theretofore been exercised shall thereafter become exercisable in the manner
described in Section 13(a).
Section 14. Fractional Rights and Fractional Shares.
(a) The Company shall not be required to issue fractions of Rights, except prior to the
Distribution Date as provided in Section 11(p) hereof, or to distribute Rights
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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 purposes of this Section 14(a), the current market value of a whole Right shall
be the closing price of the Rights for the Trading Day immediately prior to the date on which such
fractional Rights would have been otherwise issuable. The closing price of the Rights for any day
shall be the last sale price, regular way, or, in case no such sale takes place on such day, the
average of the closing bid and asked prices, regular way, in either case as reported in the
principal consolidated transaction reporting system with respect to securities listed or admitted
to trading on the New York Stock Exchange or, if the Rights are not listed or admitted to trading
on the New York Stock Exchange, as reported in the principal consolidated transaction reporting
system with respect to securities listed on the principal national securities exchange on which the
Rights are listed or admitted to trading, or if the Rights are not listed or admitted to trading on
any national securities exchange, the last quoted price or, if not so quoted, the average of the
high bid and low asked prices in the over-the-counter market, as reported by such applicable market
or such other system then in use or, if on any such date the Rights are not quoted by any such
organization, the average of the closing bid and asked prices as furnished by a professional market
maker making a market in the Rights selected by the Board of Directors of the Company. If on any
such date no such market maker is making a market in the Rights the fair value of the Rights on
such date as determined in good faith by the Board of Directors of the Company shall be used.
(b) The Company shall not be required to issue fractions of shares of Preferred Stock (other
than fractions which are integral multiples of one ten-thousandth of a share of Preferred Stock)
upon exercise of the Rights or to distribute certificates which evidence fractional shares of
Preferred Stock (other than fractions which are integral multiples of one ten-thousandth of a share
of Preferred Stock). In lieu of fractional shares of Preferred Stock that are not integral
multiples of one ten-thousandth of a share of Preferred Stock, the Company may 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 one ten-thousandth of a
share of Preferred Stock. For purposes of this Section 14(b), the current market value of one
ten-thousandth of a share of Preferred Stock shall be one ten-thousandth of the closing price of a
share of Preferred Stock (as determined pursuant to Section 11(d)(ii) hereof) for the Trading Day
immediately prior to the date of such exercise.
(c) Following the occurrence of a Triggering Event, the Company shall not be required to issue
fractions of shares of Common Stock upon exercise of the Rights or to distribute certificates which
evidence fractional shares of Common Stock. In lieu of fractional shares of Common Stock, the
Company may 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 one (1) share of Common Stock. For purposes of this Section 14(c), the current market
value of one (1) share of Common Stock shall be the closing
price of one (1) share of Common Stock (as determined pursuant to Section 11(d)(i) hereof) for
the Trading Day immediately prior to the date of such exercise.
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(d) The holder of a Right by the acceptance of the Rights expressly waives his or her right to
receive any fractional Rights or any fractional shares upon exercise of a Right, except as
permitted by this Section 14.
(e) Whenever a payment for fractional Rights or fractional shares is to be made by the Rights
Agent, the Company shall (i) promptly prepare and deliver to the Rights Agent a certificate setting
forth in reasonable detail the facts related to such payments and the prices and/or formulas
utilized in calculating such payments, and (ii) provide sufficient monies to the Rights Agent in
the form of fully collected funds to make such payments. The Rights Agent shall be fully protected
in relying upon such a certificate and shall have no duty with respect to, and shall not be deemed
to have knowledge of any payment for fractional Rights or fractional shares under any Section of
this Agreement relating to the payment of fractional Rights or fractional shares unless and until
the Rights Agent shall have received such a certificate and sufficient monies.
Section 15. Rights of Action. All rights of action in respect of this Agreement, excepting the
rights of action given to the Rights Agent under Section 18 and Section 20 hereof, are vested in
the respective registered holders of the Rights Certificates (and, prior to the Distribution Date,
the registered holders of the Common Stock); and any registered holder of any Rights Certificate
(or, prior to the Distribution Date, of the 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 Common
Stock), may, in such holder’s own behalf and for such holder’s own benefit, enforce, and may
institute and maintain any suit, action or proceeding against the Company to enforce, or otherwise
act in respect of, such holder’s 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 by the Company of
this Agreement and shall be entitled to specific performance of the obligations hereunder and
injunctive relief against actual or threatened violations by the Company of the obligations
hereunder of any Person subject to this Agreement.
Section 16. Agreement of Rights Holders. Every holder of a Right by accepting the same consents
and agrees with the Company and the Rights Agent and with every other holder of a Right that:
(a) prior to the Distribution Date, the Rights will be transferable only in connection with
the transfer 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 office of the Rights Agent designated for such
purpose, duly endorsed or accompanied by a proper instrument of transfer and with the appropriate
forms and certificates fully executed;
(c) subject to Section 6(a) and Section 7(f) hereof, the Company and the Rights Agent may deem
and treat the Person in whose name a 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
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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, subject to the
second to last sentence of Section 7(e) hereof, shall be required to be affected by any notice to
the contrary; and
(d) notwithstanding anything in this Agreement to the contrary, neither the Company nor the
Rights Agent shall have any liability to any holder of a Right or other Person as a result of its
inability to perform any of its obligations under this Agreement by reason of any preliminary or
permanent injunction or other order, decree or ruling (whether interlocutory or final) issued by a
court of competent jurisdiction or by a governmental, regulatory, self-regulatory or administrative
agency or commission, or any statute, rule, regulation or executive order promulgated or enacted by
any governmental authority, prohibiting or otherwise restraining performance of such obligation;
provided, however, the Company must use its best efforts to have any such order, decree or ruling
lifted or otherwise overturned as soon as possible.
Section 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 the holder of
the number of one ten-thousandths of a share of Preferred Stock 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 24 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.
Section 18. Concerning the Rights Agent.
(a) The Company agrees to pay to the Rights Agent reasonable compensation for all services
rendered by it hereunder and, from time to time, on demand of the Rights Agent, its reasonable
expenses and counsel fees and disbursements and other disbursements incurred in the preparation,
delivery, amendment, 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, damage, judgment, fine, penalty, claim,
demand, settlement, cost or expense (including, without limitation, the reasonable fees and
expenses of legal counsel) incurred without gross negligence, bad faith or willful misconduct on
the part of the Rights Agent (which gross negligence, bad faith or willful misconduct must be
determined by a final, non-appealable order, judgment, decree or ruling of a court of competent
jurisdiction, for any action taken, suffered or omitted by the Rights Agent in connection with the
acceptance, administration, exercise or performance of its duties under this
Agreement. The costs and expenses incurred in enforcing this right of indemnification shall
be paid by the Company. The provisions of this Section 18 and Section 20 below shall survive the
termination of this Agreement, the exercise or expiration of the Rights and the resignation,
replacement or removal of the Rights Agent.
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(b) The Rights Agent shall be authorized and protected and shall incur no liability for or in
respect of any action taken, suffered or omitted by it in connection with its acceptance and
administration of this Agreement and the exercise and performance of its duties hereunder, in
reliance upon any Rights Certificate or certificate for 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 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.
Section 19. Merger or Consolidation or Change of Name of Rights Agent.
(a) Any Person into which the Rights Agent or any successor Rights Agent may be merged or with
which it may be consolidated, or any Person resulting from any merger or consolidation to which the
Rights Agent or any successor Rights Agent shall be a party, or any Person succeeding to the
corporate trust or shareholder services 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 Person 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
a 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.
(b) In case at any time the name of the Rights Agent shall be changed and at such time any of
the Rights Certificates shall have been countersigned but not delivered, the Rights Agent may adopt
the countersignature under its prior name and deliver Rights Certificates so countersigned; and in
case at that time any of the Rights Certificates shall not have been countersigned, the Rights
Agent may countersign such Rights Certificates either in its prior name or in its changed name; and
in all such cases such Rights Certificates shall have the full force provided in the Rights
Certificates and in this Agreement.
Section 20. Rights and Duties of Rights Agent. The Rights Agent undertakes to perform only the
duties and obligations expressly imposed by this Agreement (and no implied duties) 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
or an employee of the Rights Agent), and the advice or opinion of such counsel shall be full and
complete authorization and protection to the Rights Agent and the Rights Agent shall incur no
liability for or in respect of any action taken, suffered or omitted by it in the absence of bad
faith and in accordance with such advice or opinion.
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(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 market price”) be proved or established by
the Company prior to taking, suffering or omitting to take any action hereunder, such fact or
matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed
to be conclusively proved and established by a certificate signed by the Chairman of the Board, the
Chief Executive Officer, the President, the Vice Chairman or the Vice President and by the
Treasurer, the Assistant Treasurer, the Secretary or the Assistant Secretary of the Company and
delivered to the Rights Agent; and such certificate shall be full and complete authorization and
protection to the Rights Agent and the Rights Agent shall incur no liability for or in respect of
any action taken, suffered or omitted 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, willful misconduct or bad faith (which gross negligence or bad faith must
be determined by a final, non-appealable order, judgment, decree or ruling of a court of competent
jurisdiction). Anything to the contrary notwithstanding, in no event shall the Rights Agent be
liable for special, punitive, indirect, consequential or incidental loss or damage of any kind
whatsoever (including but not limited to lost profits), even if the Rights Agent has been advised
of the likelihood of such loss or damage. Any liability of the Rights Agent under this Agreement
will be limited to the amount of annual fees paid by the Company to the Rights Agent.
(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 have any liability for or 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 (including the
Rights becoming null and void pursuant to Section 11(a)(ii) hereof) or any change or adjustment in
the terms of the Rights (including the manner, method or amount thereof) provided for in Section 3,
11, 13, 23 or 27 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 of the certificate described in Section 12 hereof, upon which the Rights Agent may rely);
nor shall it by any act hereunder be deemed to make any representation or warranty as to the
authorization or reservation of any shares of Common Stock
or Preferred Stock to be issued pursuant to this Agreement or any Rights Certificate or as to
whether any shares of Common Stock or Preferred Stock will, when so issued, be validly authorized
and issued, fully paid and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge and deliver or cause to be
performed, executed, acknowledged and delivered all such further and
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other acts, instruments and
assurances as may reasonably be required by the Rights Agent for the carrying out or performing by
the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept instructions with respect to
the performance of its duties hereunder from the Chairman of the Board, the Chief Executive
Officer, the President, the Vice Chairman, any Vice President, the Secretary, any Assistant
Secretary, the Treasurer or any Assistant Treasurer of the Company, and to apply to such officers
for advice or instructions in connection with its duties and such instructions shall be full
authorization and protection to the Rights Agent and the Rights Agent shall not be liable for or in
respect of any action taken, suffered or omitted to be taken by it in accordance with instructions
of any such officer or for any delay in acting while waiting for those instructions. The Rights
Agent shall be fully authorized and protected in relying upon the most recent instructions received
by any such officer. 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,
suffered or omitted by the Rights Agent under this Agreement and the date on and/or after which
such action shall be taken or suffered or such omission shall be effective. The Rights Agent shall
not be liable for any action taken or suffered by, or omission of, the Rights Agent in accordance
with a proposal included in any such application on or after the date specified in such application
(which date shall not be less than five Business Days after the date any officer of the 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, suffered or omitted.
(h) The Rights Agent and any stockholder, affiliate, director, officer or employee of the
Rights Agent may buy, sell, trade or otherwise 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 the
Rights Agent were not the Rights Agent under this Agreement, provided that such Rights Agent shall
not have received confidential information from the Company in its capacity hereunder or otherwise
as a result of which such actions would violate the rules and regulations of the Securities and
Exchange Commission. Nothing herein shall preclude the Rights Agent or any such stockholder,
affiliate, director, officer or employee 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 (through its directors, officers and employees) 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 or any other Person resulting from any such act, default, neglect or misconduct, absent
gross negligence, willful misconduct or bad faith in the selection and
continued employment thereof (which gross negligence, willful misconduct or bad faith must be
determined by a final, non-appealable order, judgment, decree or ruling of a court of competent
jurisdiction).
(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
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duties hereunder
or in the exercise of its rights if it believes that repayment of such funds or adequate
indemnification against such risk or liability is not reasonably assured to it.
(k) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or
transfer, the certificate attached to the form of assignment or form of election to purchase, as
the case may be, has either not been completed or indicates an affirmative response to clause 1
and/or 2 thereof, the Rights Agent shall not take any further action with respect to such requested
exercise of transfer without first consulting with the Company.
Section 21. Change of Rights Agent. The Rights Agent or any successor Rights Agent may resign and
be discharged from its duties under this Agreement upon thirty (30) days’ notice in writing mailed
to the Company, and to each transfer agent of the Common Stock and Preferred Stock known to the
Rights Agent, by registered or certified mail, and to the holders of the Rights Certificates by
first-class mail. The Company may, in its sole discretion, remove the Rights Agent or any
successor Rights Agent upon thirty (30) days’ notice in writing, mailed to the Rights Agent or
successor Rights Agent, as the case may be, and to each transfer agent of the Common Stock and
Preferred 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 it has been notified in writing of such resignation or incapacity by the resigning
or incapacitated Rights Agent or by the holder of a Rights Certificate (who shall, with such
notice, submit his Rights Certificate for inspection by the Company), then any 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 either (a) a Person 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 powers and is subject to supervision or examination by federal or state authority
and which has at the time of its appointment as Rights Agent a combined capital and surplus of at
least $100,000,000 or (b) an Affiliate of such a Person. After appointment, the successor Rights
Agent shall be vested with the same powers, rights, duties and responsibilities as if it had been
originally named as Rights Agent without further act or deed; but the predecessor Rights Agent
shall deliver and transfer to the successor Rights Agent any property at the time held by it
hereunder, and execute and deliver any further assurance, conveyance, act or deed necessary for the
purpose. Not later than the effective date of any such appointment, the Company shall file notice
thereof in writing with the predecessor Rights Agent and each transfer agent of the Common Stock
and the Preferred Stock, and mail a notice thereof in writing to the registered holders of the
Rights Certificates. Failure to give any notice provided for in this Section 21, however, or any
defect therein, shall not affect the legality or validity of the resignation or
removal of the Rights Agent or the appointment of the successor Rights Agent, as the case may be.
Section 22. Issuance of New Rights Certificates. Notwithstanding any of the provisions of this
Agreement or of the Rights to the contrary, the Company may, at its option, issue new Rights
Certificates evidencing Rights in such form as may be approved by its Board of Directors to reflect
any adjustment or change in the Purchase Price and the number or kind or class of shares or other
securities or property purchasable under the Rights Certificates made in
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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, granted or awarded as of
the Distribution Date, 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 if, and to the extent that, the Company shall be advised by
counsel that such issuance would create a significant risk of material adverse tax consequences to
the Company or the Person to whom such Rights Certificate would be issued, 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.
Section 23. Redemption and Termination.
(a) The Board of Directors of the Company may, at its option, at any time prior to the earlier
of (i) the Close of Business on the tenth day following the Stock Acquisition Date (or, if the
Stock Acquisition Date shall have occurred prior to the Record Date, the Close of Business on the
twentieth day following the Record Date), or (ii) the Final Expiration Date, redeem all but not
less than all of the then outstanding Rights at a redemption price of $0.001 per Right, as such
amount may be appropriately adjusted to reflect any stock split, stock dividend or similar
transaction occurring after the date hereof (such redemption price being hereinafter referred to as
the “Redemption Price”); provided, however, if the Board of Directors of the
Company authorizes redemption of the Rights in either of the circumstances set forth in clauses (i)
and (ii) below, then such authorization shall require the concurrence of at least 75% of the
members of the Board of Directors of the Company: (i) such authorization occurs on or after the
time a Person becomes an Acquiring Person, or (ii) such authorization occurs on or after the date
of a change (resulting from a proxy or consent solicitation or an action by written consent of
stockholders, whether or not made pursuant to, and in accordance with, the applicable provisions of
the General Rules and Regulations under the Exchange Act) in a majority of the directors in office
at the time of the commencement of such solicitation, or prior to the time of such written consent,
if any Person who is a participant in such solicitation, or who signed such consent, has stated (or
a majority of the Board of Directors of the Company has determined in good faith) that such Person
(or any of its Affiliates or Associates) intends to take, or may consider taking, any action which
would result in such Person becoming an Acquiring Person or which would cause the occurrence of a
Triggering Event. Notwithstanding anything contained in this Agreement to
the contrary, the Rights shall not be exercisable after the first occurrence of a Section
11(a)(ii) Event until such time as the Company’s right of redemption hereunder has expired. The
Company may, at its option, pay the Redemption Price in cash, shares of Common Stock (based on the
Current Market Price, as defined in Section 11(d)(i) hereof, of the Common Stock at the time of
redemption) or any other form of consideration deemed appropriate by the Board of Directors.
(b) Immediately upon the action of the Board of Directors of the Company ordering the
redemption of the Rights pursuant to paragraph (a) of this Section 23, and without
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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 (with prompt written notice thereof to the
Rights Agent); provided, however, that the failure to give, or any defect in, any such notice shall
not affect the legality or validity of such redemption. Within 10 days after the action of the
Board of Directors ordering the redemption of the Rights, the Company shall mail a notice of such
redemption to the holders of the then outstanding Rights by mailing such notice to all such holders
at each holder’s last address as it appears 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.
Section 24. Notice of Certain Events.
(a) In case the Company shall propose, at any time after the Distribution Date, (i) to pay any
dividend payable in stock of any class to the holders of Preferred Stock or to make any other
distribution to the holders of Preferred Stock (other than a regular quarterly cash dividend out of
earnings or retained earnings of the Company), or (ii) to offer to the holders of Preferred Stock
rights or warrants to subscribe for or to purchase any additional shares of Preferred Stock or
shares of stock of any class or any other securities, rights, options or warrants, or (iii) to
effect any reclassification of its Preferred Stock (other than a reclassification involving only
the subdivision of outstanding shares of Preferred Stock), or (iv) to effect any consolidation or
merger into or with any other Person (other than a Subsidiary of the Company in a transaction which
complies with Section 11(o) hereof), or to effect any sale or other transfer (or to permit one or
more of its Subsidiaries to effect any sale or other transfer), in one transaction or a series of
related transactions, of more than 50% of the assets or earning power of the Company and its
Subsidiaries (taken as a whole) to any other Person or Persons (other than the Company and/or any
of its Subsidiaries in one or more transactions each of which complies with Section 11(o) hereof),
or (v) to effect the liquidation, dissolution or winding up of the Company, then, in each such
case, the Company shall as soon as practicable thereafter give to the Rights Agent and to each
holder of a Rights Certificate, in accordance with Section 25 hereof, a notice of such proposed
action, which shall specify the record date for the purposes of such stock dividend, distribution
of rights, options or warrants, or the date on which such reclassification, consolidation, merger,
sale, disposition, transfer, liquidation, dissolution, or winding up is to take place and the date
of participation therein by the holders of the shares of Preferred Stock, if any such date is to be
fixed, and such notice shall be so given in the case of any action covered by clause (i) or (ii)
above at least twenty (20) days prior to the record date for determining holders
of the shares of Preferred Stock for purposes of such action, and in the case of any such
other action, at least twenty (20) days prior to the date of the taking of such proposed action or
the date of participation therein by the holders of the shares of Preferred Stock whichever shall
be the earlier.
(b) In case any of the events set forth in Section 11(a)(ii) hereof shall occur, then, in any
such case, (i) the Company shall as soon as practicable thereafter give to the Rights Agent and to
each holder of a Rights Certificate, and in accordance with Section 25 hereof, a notice of the
occurrence of such event, which notice shall specify the event and the consequences
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of the event to
holders of Rights under Section 11(a)(ii) hereof, and (ii) all references in the preceding
paragraph to Preferred Stock shall be deemed thereafter to refer to Common Stock and/or, if
appropriate, other securities.
Section 25. 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:
| Advanta Corp. | ||
| Welsh & XxXxxx Xxxxx | ||
| X.X. Xxx 000 | ||
| Xxxxxx Xxxxx, Xxxxxxxxxxxx 00000 | ||
| Attention: General Counsel |
Subject to the provisions of Section 21, any notice or demand authorized by this Agreement to be
given or made by the Company or by the holder of any Rights Certificate to or on the Rights Agent
shall be sufficiently given or made if sent by first-class mail, postage prepaid, addressed (until
another address is filed in writing with the Company) as follows:
| Mellon Investor Services LLC | ||
| Newport Office Center VII | ||
| 000 Xxxxxxxxxx Xxxxxxxxx | ||
| Xxxxxx Xxxx, Xxx Xxxxxx 00000 | ||
| Attention: General Counsel |
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 (or, if prior to the Distribution Date, to the holder
of certificates representing shares of Common Stock) shall be sufficiently given or made if sent by
first-class mail, postage prepaid, addressed to such holder at the address of such holder as shown
on the registry books of the Company.
Section 26. Modifications, Supplements and Amendments. Prior to the Distribution Date, the Company
may modify, supplement or amend any provision of this Agreement without the approval of any holders
of certificates representing shares of Common Stock. From and after the Distribution Date and
subject to the penultimate sentence of
this Section 26, the Company may modify, supplement or amend any provision of this Agreement
without the approval of any holders of Rights Certificates in order (i) to cure any ambiguity, (ii)
to correct or supplement any provision contained herein which may be defective or inconsistent with
any other provisions herein, (iii) to shorten or lengthen any time period hereunder (which
lengthening or shortening, following the first occurrence of an event set forth in clauses (i) and
(ii) of the first proviso to Section 23(a) hereof, shall require the concurrence of at least 75% of
the members of the Board of Directors of the Company), 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 which a majority of the holders of Rights (other than an
Acquiring Person or an Affiliate or Associate of an Acquiring Person) have in common (any such
modification, supplement or amendment to be evidenced by a writing signed by the Company and the
Rights
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Agent); provided, however, this Agreement may not be modified, 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 majority of the holders of Rights. Upon the delivery of
a certificate from an appropriate officer of the Company and, if requested by the Rights Agent, an
opinion of counsel, that states that the proposed modification, supplement or amendment is in
compliance with the terms of this Section 26, the Rights Agent shall execute such modification,
supplement or amendment. From and after the Distribution Date, no modification, supplement or
amendment shall be made which changes the Redemption Price, the Final Expiration Date, the Purchase
Price or the number of one ten-thousandths of a share of Preferred Stock for which a Right is
exercisable. Prior to the Distribution Date, the interests of the holders of Rights shall be
deemed coincident with the interests of the holders of Common Stock.
Section 27. Exchange.
(a) (i) The Company may, at its option, at any time after the Stock Acquisition Date, upon
resolution by the Board of Directors of the Company, exchange all or part of the then outstanding
and exercisable Rights (which shall not include Rights that have become null and void pursuant to
the provisions of Section 7(e) hereof) for Common Stock at an exchange ratio of one share of Class
A Common Stock per Class A Right and one share of Class B Common Stock per Class B Right,
appropriately adjusted to reflect any stock split, stock dividend or similar transaction occurring
after the date of this Agreement (such exchange ratio being hereinafter referred to as the “Section
27(a) Exchange Ratio”).
(ii) Notwithstanding anything contained in this Section 27(a) to the contrary, the Company may
not exchange any Rights pursuant to this Section 27(a) unless such exchange is approved by at least
75% of the members of the Board of Directors of the Company.
(b) Immediately upon the action of the Board of Directors of the Company ordering the exchange
of any Rights pursuant to paragraph (a) of this Section 27 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 Section 27(a) Exchange Ratio. The
Company shall promptly give public notice of any such exchange
(with prompt written notice thereof to the Rights Agent); provided, however, that the failure
to give, or any defect in, such notice shall not affect the legality or validity of such exchange.
The Company promptly shall mail a notice of any such exchange to all of the holders of such Rights
at their last addresses as they appear upon the registry books of the Rights Agent. Any notice
which is mailed in the manner herein provided shall be deemed given, whether or not the holder
receives the notice. Each such notice of exchange will state the method by which the exchange of
the shares 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 null and void pursuant to the
provisions of Section 7(e) hereof) held by each holder of Rights.
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(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 this Section 27, the Company shall make adequate provision to substitute, to the
extent that there are insufficient shares of Common Stock available (1) cash, (2) other equity
securities of the Company, (3) debt securities of the Company, (4) other assets or (5) any
combination of the foregoing, having an aggregate value per Right equal to the then current per
share market price (determined pursuant to Section 11(d) hereof) of the Class A Common Stock or
Class B Common Stock, as the case may be, multiplied by the Section 27(a) Exchange Ratio. To the
extent that the Company determines that any such substitution must be made, the Company shall
provide, subject to Section 7(e) hereof, that such substitution shall apply uniformly to all
outstanding Rights.
(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, the Company shall pay 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. For the purposes of this paragraph (d), the current market value of a whole share
of Common Stock shall be the closing price of a share of Common Stock (as determined pursuant to
the second sentence of Section 11(d)(i) hereof) for the Trading Day immediately prior to the date
of the exchange pursuant to this Section 27.
Section 28. Successors. All the covenants and provisions of this Agreement by or for the benefit
of the Company or the Rights Agent shall bind and inure to the benefit of their respective
successors and assigns hereunder.
Section 29. 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 (with, where specifically provided for herein, the concurrence of
at least 75% of the members of 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 (with, where
specifically provided for herein, the concurrence of at least 75% of the members of the Board of
Directors of the Company) or to the Company, or as may be necessary or advisable in the
administration of this Agreement, including, without limitation, the right and power to (i)
interpret the provisions of this Agreement, and (ii) make all determinations deemed necessary or
advisable for the administration of this Agreement (including a determination to redeem or 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 (with, where specifically provided for herein, the
concurrence of at least 75% of the members of the Board of Directors of the Company) in good faith,
shall (x) be final, conclusive and binding on the Company, the Rights Agent, the holders of the
Rights and all other Persons, and (y) not subject the Board to any liability to the holders of the
Rights. The Rights Agent is entitled always to assume the Company’s Board of
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Directors acted in
good faith and shall be fully protected and incur no liability in reliance thereon.
Section 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, registered holders of the 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, registered holders of the Common Stock).
Section 31. Severability. If any term, provision, covenant or restriction of this Agreement is
held by a court of competent jurisdiction or other authority to be invalid, void or unenforceable,
the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain
in full force and effect and shall in no way be affected, impaired or invalidated;
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 twentieth day following the
date of such determination by the Board of Directors. Without limiting the foregoing, if any
provision requiring a super majority of the Board of Directors of the Company to act is held by any
court of competent jurisdiction or other authority to be invalid, void or unenforceable, such
determination shall then be made by the Board of Directors of the Company in accordance with
applicable law and the Company’s Restated Certificate of Incorporation and By-Laws.
Section 32. Governing Law.
This Agreement, each Right and each Rights Certificate issued hereunder shall be deemed to be
a contract made under the laws of the State of Delaware and for all purposes shall be governed by
and construed in accordance with the laws of such state applicable to contracts made and to be
performed entirely within such state.
Section 33. Counterparts. This Agreement may be executed, including by facsimile signature, in any
number of counterparts and each of such counterparts shall for all purposes be deemed to be an
original, and all such counterparts shall together constitute but one and the same instrument.
Section 34. Descriptive Headings. Descriptive headings of the several Sections of this Agreement
are inserted for convenience only and shall not control or affect the meaning or construction of
any of the provisions hereof.
[The remainder of this page intentionally left blank.]
-37-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and
their respective corporate seals to be hereunto affixed and attested,
all on the 11th day of April,
2007.
| Attest: | ADVANTA CORP. | |||||||||
By:
|
/s/ Xxxxxxxxx X. Xxx
|
By: | /s/ Xxxxxxx X. Xxxxxx
|
|||||||
| Name: Xxxxxxxxx X. Xxx | Name: Xxxxxxx X. Xxxxxx | |||||||||
| Title: Secretary | Title: President and Vice Chairman of the Board | |||||||||
| Attest: | MELLON INVESTOR SERVICES LLC | |||||||||
By:
|
/s/ Xxxxxxx Xxxxxxx | By: | /s/ Xxxxx X. Xxxxxxxx | |||||||
| Name: Xxxxxxx Xxxxxxx | Name: Xxxxx X. Xxxxxxxx | |||||||||
| Title: Client Relationship Executive and Assistant Vice President | Title: Client Relationship Executive | |||||||||
Exhibit A
[Form of Rights Certificate]
| Certificate No. R[A][B]1- | Class [A][B] Rights |
NOT EXERCISABLE AFTER APRIL 11, 2017 OR EARLIER IF REDEEMED BY THE COMPANY. THE RIGHTS ARE SUBJECT
TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT $0.001 PER RIGHT ON THE TERMS SET FORTH IN THE
RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON
(AS SUCH TERM IS DEFINED IN THE RIGHTS AGREEMENT) AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY
BECOME NULL AND VOID. [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 SUCH AGREEMENT.]2
Class [A][B] Rights Certificate
This certifies that [ ], or registered assigns, is the registered owner of
the number of Class [A][B] Rights set forth above, each of which entitles the owner thereof,
subject to the terms, provisions and conditions of the Rights Agreement, executed by the parties
thereto on April 11, 2007 (the “Rights Agreement”), between
Advanta Corp., a Delaware corporation (the “Company”), and Mellon Investor Services LLC, a New
Jersey limited liability company, as Rights Agent (the “Rights Agent”), to purchase from the
Company at any time after the Distribution Date (as such term is defined in the Rights Agreement)
prior to 5:00 P.M. (New York City time) on April 11, 2017 at the office or offices of the Rights
Agent designated for such purpose, or at the office of its successors as Rights Agent, one
ten-thousandth of a fully paid, non-assessable share of Series A Junior Participating Preferred
Stock (the “Preferred Stock”) of the Company, at a purchase
price of $175.00 per one
ten-thousandth of a share (the “Purchase Price”), upon presentation and surrender of this Rights
Certificate with the Election to Purchase and related Certificate duly executed. The number of
Rights evidenced by this Rights Certificate (and the number of shares which may be purchased upon
exercise thereof) set forth above, and the Purchase Price per share set forth above, are the number
and Purchase Price as of April 11, 2007 based on the Preferred Stock as constituted at such date.
The Company reserves the right to require prior to the occurrence of a
| 1 | Wherever the designation [A][B] is used, the form A should be inserted for Class A Rights and the form B should be inserted for Class B Rights. | |
| 2 | The portion of the legend in brackets shall be inserted only if applicable and shall replace the preceding sentence. |
A-1
Triggering Event (as such term is defined in the Rights Agreement) that a number of Rights be
exercised so that only whole shares of Preferred Stock will be issued.
Upon the occurrence of a Section 11(a)(ii) Event (as such term is defined in the Rights
Agreement), if the Rights evidenced by this Rights Certificate are beneficially owned by (i) an
Acquiring Person or an Affiliate or Associate of any Acquiring Person (as such terms are defined in
the Rights Agreement), (ii) a transferee of any Acquiring Person, Associate or Affiliate, or (iii)
under certain circumstances specified in the Rights Agreement, a transferee of a Person who, after
such transfer, became an Acquiring Person, or an Affiliate or Associate of an Acquiring Person,
such Rights shall become null and void and no holder hereof shall have any right with respect to
such Rights from and after the occurrence of such Section 11(a)(ii) Event.
As provided in the Rights Agreement, the Purchase Price and the number and kind of shares of
Preferred Stock or other securities which may be purchased upon the exercise of the Rights
evidenced by this Rights Certificate are subject to modification and adjustment upon the happening
of certain events, including Triggering Events.
This Rights Certificate is subject to all of the terms, provisions and conditions of the
Rights Agreement, which terms, provisions and conditions are hereby incorporated herein by
reference and made a part hereof and to which Rights Agreement reference is hereby made for a full
description of the rights, limitations of rights, obligations, duties and immunities hereunder of
the Rights Agent, the Company and the holders of the Rights Certificates, which limitations of
rights include the temporary suspension of the exercisability of such Rights under the specific
circumstances set forth in the Rights Agreement. Copies of the Rights Agreement are on file at the
principal offices of the Company and are also available upon written request to the Rights Agent.
This Rights Certificate, with or without other Rights Certificates, upon surrender at the
office of the Rights Agent designated for such purpose, may be exchanged for another Rights
Certificate or Rights Certificates of like tenor and date evidencing Rights entitling the holder to
purchase a like aggregate number of one ten thousandths of a share of Preferred Stock as the Rights
evidenced by the Rights Certificate or Rights Certificates surrendered shall have entitled such
holder to purchase. If this Rights Certificate shall be exercised in part, the holder shall be
entitled to receive upon surrender hereof another Class [A][B] Rights Certificate or Rights
Certificates for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights evidenced by this Certificate
may be redeemed by the Company at its option at a redemption price of $0.001 per Right at any time
prior to the earlier of the Close of Business on (i) the tenth day following the Stock Acquisition
Date (as such time period may be extended pursuant to the Rights Agreement), and (ii) the Final
Expiration Date. In addition, the Rights may be exchanged, in whole or in part, for shares of the
Class [A][B] Common Stock, or shares of preferred stock of the Company having essentially the same
value or economic rights as such shares. Immediately upon the action of the Board of Directors of
the Company authorizing any such exchange, and without any further action or any notice, the Rights
(other than Rights which are not subject to such exchange) will terminate and the Rights will only
enable holders to receive the shares issuable upon such exchange. Under certain circumstances set
forth in the Rights Agreement,
A-2
the decision to redeem the Rights shall require the concurrence of at least 75% of the members
of the Board of Directors of the Company.
No fractional shares of Preferred Stock will be issued upon the exercise of any Right or
Rights evidenced hereby (other than fractions which are integral multiples of one ten-thousandth of
a share of Preferred Stock, which may, at the election of the Company, be evidenced by depositary
receipts), but in lieu thereof a cash payment will be made, as provided in the Rights Agreement.
No holder of this Rights Certificate shall be entitled to vote or receive dividends or be
deemed for any purpose the holder of shares of Preferred Stock or of any other securities of the
Company which may at any time be issuable on the exercise hereof, nor shall anything contained in
the Rights Agreement or herein be construed to confer upon the holder hereof, as such, any of the
rights of a 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 the Rights Agreement), or to receive dividends or subscription rights, or otherwise,
until the Right or Rights evidenced by this Rights Certificate shall have been exercised as
provided in the Rights Agreement.
This Rights Certificate shall not be valid or obligatory for any purpose until it shall have
been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the Company and its corporate seal.
| Dated: , ______ | ||||||||||
| ATTEST: | ADVANTA CORP. | |||||||||
By:
|
By: | |||||||||
| Secretary | Name: | |||||||||
| Title: | ||||||||||
| Countersigned: | ||||||||||
| MELLON INVESTOR SERVICES LLC | ||||||||||
By: |
||||||||||
| Authorized Signature | ||||||||||
A-3
[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Rights Certificate.)
holder desires to transfer the Rights Certificate.)
FOR VALUE RECEIVED
hereby sells, assigns and transfers unto
(Please print name and address of transferee)
this Class [A][B] Rights Certificate, together with all right, title and interest therein, and
does hereby irrevocably constitute and appoint
Attorney, to transfer the within Class [A][B] Rights
Certificate on the books of the within-named Company, with full power of substitution.
Dated: , ___ |
||||||
| Signature |
Signature Guaranteed:
Signatures must be guaranteed by a participant in the Securities Transfer Agent Medallion Program,
the Stock Exchanges Medallion Program or the New York Stock Exchange, Inc. Medallion Signature
Program.
Certificate
The undersigned hereby certifies by checking the appropriate boxes that:
(1) this Rights Certificate [ ] is [ ] is not being sold, assigned and transferred by or on
behalf of a Person who is or was an Acquiring Person or an Affiliate or Associate of any Acquiring
Person (as such terms are defined pursuant to the Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned, it [ ] did [ ] did not
acquire the Rights evidenced by this Rights Certificate from any Person who is, was or subsequently
became an Acquiring Person or an Affiliate or Associate of an Acquiring Person.
Dated: , ___ |
||||||
| Signature |
Signature Guaranteed:
Signatures must be guaranteed by a participant in the Securities Transfer Agent Medallion Program,
the Stock Exchanges Medallion Program or the New York Stock Exchange, Inc. Medallion Signature
Program.
A-4
NOTICE
The signature to the foregoing Assignment and Certificate must correspond to the name as
written upon the face of this Rights Certificate in every particular, without alteration or
enlargement or any change whatsoever.
In the event the certification set forth above in the Form of Assignment is not completed, the
Company and the Rights Agent may deem the beneficial owner of the Rights evidenced by this Right
Certificate to be an Acquiring Person or an Affiliate or Associate thereof (as defined in the
Rights Agreement) and such Assignment may not be honored.
A-5
FORM OF ELECTION TO PURCHASE
(To be executed by the registered holder if such
holder desires to exercise Rights represented by the Rights Certificate.)
holder desires to exercise Rights represented by the Rights Certificate.)
To: ADVANTA CORP.:
The
undersigned hereby irrevocably elects to exercise
_____ Class [A][B] Rights represented by this
Rights Certificate to purchase the shares of Preferred Stock issuable upon the exercise of the
Rights (or such other securities of the Company or of any other Person which may be issuable upon
the exercise of the Rights) and requests that certificates for such shares be issued in the name of
and delivered to:
Please insert social security
or other identifying number
or other identifying number
(Please print name and address)
If such number of Rights shall not be all the Rights evidenced by this Rights
Certificate, a new Rights Certificate for the balance of such Rights shall be registered in the
name of and delivered to:
Please insert social security
or other identifying number
or other identifying number
(Please print name and address)
Dated: , ___ |
||||||
| Signature |
Signature Guaranteed:
Signatures must be guaranteed by a participant in the Securities Transfer Agent Medallion Program,
the Stock Exchanges Medallion Program or the New York Stock Exchange, Inc. Medallion Signature
Program.
Certificate
The undersigned hereby certifies by checking the appropriate boxes that:
(1) the Rights evidenced by this Rights Certificate [ ] are [ ] are not being exercised by
or on behalf of a Person who is or was an Acquiring Person or an Affiliate or Associate of any
Acquiring Person (as such terms are defined pursuant to the Rights Agreement);
A-6
(2) after due inquiry and to the best knowledge of the undersigned, it [ ] did [ ] did not
acquire the Rights evidenced by this Rights Certificate from any Person who is, was or became an
Acquiring Person or an Affiliate or Associate of an Acquiring Person.
Dated: , ___ |
||||||
| Signature |
Signature Guaranteed:
Signatures must be guaranteed by a participant in the Securities Transfer Agent Medallion Program,
the Stock Exchanges Medallion Program or the New York Stock Exchange, Inc. Medallion Signature
Program.
NOTICE
The signature to the foregoing Election to Purchase and Certificate must correspond to the
name as written upon the face of this Rights Certificate in every particular, without alteration or
enlargement or any change whatsoever.
In the event the certification set forth above in the Form of Election to Purchase is not
completed, the Company and the Rights Agent may deem the beneficial owner of the Rights evidenced
by this Right Certificate to be an Acquiring Person or an Affiliate or Associate thereof (as
defined in the Rights Agreement) and such Election to Purchase may not be honored.
A-7
Exhibit B
SUMMARY OF RIGHTS TO PURCHASE
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
On
April 2, 2007 and on April 11, 2007, the Board of Directors of Advanta Corp. (the “Company”) adopted a
Shareholder Rights Plan, providing that one Class A Right (a “Class A Right”) shall be attached to
each share of Class A Common Stock, par value $0.01 per share, of the Company (the “Class A Common
Stock”) and one Class B Right (a “Class B Right” and, together with the Class A Rights, the
“Rights”) shall be attached to each share of Class B Common Stock, par value $0.01 per share, of
the Company (the “Class B Common Stock” and, together with the Class A Common Stock, the “Common
Stock”). Each Right entitles the registered holder thereof to purchase from the Company a
fractional share unit (a “Unit”) consisting of one ten-thousandth of a share of Series A Junior
Participating Preferred Stock, par value $0.01 per share (the “Preferred Stock”), at a Purchase
Price of $175.00 per Unit (the “Purchase Price”), subject to adjustment. The description and
terms of the Rights are set forth in the Rights Agreement, executed by the parties thereto on April 11, 2007 (the “Rights Agreement”), between the Company and
Mellon Investor Services LLC, as Rights Agent (the “Rights Agent”).
Initially, the Class A Rights will be attached to all Class A Common Stock certificates
representing shares then outstanding and the Class B Rights will be attached to all Class B Common
Stock certificates representing shares then outstanding, and no separate certificates evidencing
the Rights (the “Rights Certificates”) will be distributed. The Rights will separate from the
Common Stock and a Distribution Date will occur upon the earlier of (i) ten (10) days following a
public announcement that a Person or group of affiliated or associated Persons (an “Acquiring
Person”) has acquired, or obtained the right to acquire, beneficial ownership of 15% or more of the
outstanding shares of Common Stock or 15% or more of the outstanding shares of either the Class A
Common Stock or the Class B Common Stock (the “Stock Acquisition Date”) or (ii) ten (10) Business
Days (unless extended by the Board) following the earlier of either the commencement of a tender
offer or exchange offer, or the first pre-tender offer commencement communication, that would
result in a Person or group beneficially owning 15% or more of such outstanding shares of Common
Stock, or 15% of more of such outstanding shares of the Class A Common Stock or the Class B Common
Stock. The definition of Acquiring Person excludes any Exempted Person (as defined below).
Furthermore, if a majority of the Board of Directors of the Company determines in good faith that a
Person who would otherwise be an Acquiring Person (i) inadvertently became an Acquiring Person and
(ii) without any intention of changing or influencing control of the Company, and if such Person
promptly within five Business Days after notice from the Company divests itself of a sufficient
number of such shares of Class A Common Stock and/or Class B Common Stock so that such Person would
no longer beneficially own 15% or more of the Common Stock, Class A Common and/or Class B Common
Stock, then such Person shall not be deemed to be or to have become an Acquiring Person for any
purposes of the Rights Agreement.
Until the Distribution Date, (i) the Rights will be evidenced by the Common Stock certificates
and will be transferred with and only with such Common Stock certificates, (ii) new Common Stock
certificates will contain a notation incorporating the Rights Agreement by reference and (iii) the
surrender for transfer of any certificates for Common Stock outstanding
B-1
will also constitute the transfer of the Rights associated with the Common Stock represented
by such certificate.
Any Person who, together with all affiliates and associates of such Person, is the beneficial
owner of Common Stock, options and/or warrants exercisable for shares of Common Stock representing
15% or more of the shares of Common Stock outstanding or 15% or more of the shares of either the
Class A Common Stock or the Class B Common Stock
outstanding on April 11, 2007 (the date the Board of Directors
authorized the dividend of Rights), will be an “Exempted
Person.” In addition, any Person who, together with all affiliates and associates of such Person,
becomes the beneficial owner of Common Stock, options and/or warrants exercisable for shares of
Common Stock representing 15% or more of the shares of Common Stock then outstanding, or 15% or
more of the shares of either the Class A Common Stock or the Class B Common Stock then outstanding,
in either case as a result of a purchase by the Company or any of its Subsidiaries of shares of
Common Stock will also be an “Exempted Person.” However, any such Person, who becomes the
beneficial owner of Common Stock, options and/or warrants exercisable for shares of Common Stock
representing 15% or more of the shares of Common Stock then outstanding, or 15% or more of the
shares of either the Class A Common Stock or the Class B Common Stock then outstanding after the
Rights Declaration Date, will no longer be deemed to be an Exempted Person and will be deemed to be
an Acquiring Person if such Person, together with all affiliates and associates of such Person,
becomes the beneficial owner, at any time after the date such Person became the beneficial owner of
15% or more of the then outstanding shares of Common Stock or 15% or more of the then outstanding
shares of either the Class A Common Stock or the Class B Common Stock, of additional securities
representing 1,000 or more shares of Common Stock, except if such additional securities are
acquired (x) pursuant to the exercise of options or warrants to purchase Common Stock outstanding
and beneficially owned by such Person as of the date such Person became the beneficial owner of 15%
or more of the then outstanding shares of Common Stock, Class A Common Stock, or Class B Common
Stock, or, as a result of an adjustment to the number of shares of Common Stock, Class A Common
Stock, or Class B Common Stock for which such options or warrants are exercisable pursuant to the
terms thereof, or (y) as a result of a stock split, stock dividend or the like. A purchaser,
assignee or transferee of the shares of Common Stock (or, options or warrants exercisable for
Common Stock) from an Exempted Person will not thereby become an Exempted Person, except that a
transferee from the estate of an Exempted Person who receives Common Stock as a bequest or
inheritance from an Exempted Person shall be an Exempted Person so long as such transferee
continues to be the beneficial owner of the requisite percentage of shares.
The Rights are not exercisable until the Distribution Date and will expire at the Close of
Business on April 11, 2017 unless earlier redeemed by the Company as described below. At no time
will the Rights have any voting power.
As soon as practicable after the Distribution Date, Rights Certificates will be mailed to
holders of record of the Common Stock as of the Close of Business on the Distribution Date and,
thereafter, the separate Rights Certificates alone will represent the Rights. Except as otherwise
determined by the Board of Directors, only shares of Common Stock issued prior to the Distribution
Date will be issued with Rights.
B-2
In the event that an Acquiring Person, other than an Exempted Person, becomes the beneficial
owner of 15% or more of the then outstanding shares of Common Stock or 15% or more of the then
outstanding shares of either the Class A Common Stock or the Class B Common Stock, each holder of a
Class A Right will thereafter have the right to receive, upon exercise, a number of shares of Class
A Common Stock (or, in certain circumstances, cash, property or other securities of the Company)
and each holder of a Class B Right will thereafter have the right to receive, upon exercise, a
number of shares of Class B Common Stock (or, in certain circumstances, cash, property or other
securities of the Company), which shares will have a value equal to two times the Exercise Price of
the Right. The Exercise Price is the Purchase Price times the number of Units associated with each
Right (initially, one). Notwithstanding any of the foregoing, following the occurrence of any of
the events set forth in this paragraph (the “Flip-In Events”), all Rights that are, or (under
certain circumstances specified in the Rights Agreement) were, beneficially owned by any Acquiring
Person will be null and void. However, Rights are not exercisable following the occurrence of any
of the Flip-In Events set forth above until such time as the Rights are no longer redeemable by the
Company as set forth below.
In the event that, (1) prior to the Stock Acquisition Date, there is a change in a majority of
the directors resulting from a proxy or consent solicitation or an action by written consent of
stockholders, and the Person who is a participant in such solicitation, or who signed such consent,
has stated (or a majority of the Board of Directors of the Company has determined in good faith)
that such Person (or the affiliates and associates of such Person) may take any action which would
result in such Person becoming an Acquiring Person or which would cause the occurrence of either a
Flip-In Event or a Flip-Over Event, or (2) on or after the Stock Acquisition Date:
(x) the Company engages in a merger or consolidation in which the Company is not the surviving
corporation;
(y) the Company engages in a merger or consolidation in which the Company is the surviving
corporation and the Common Stock is changed or exchanged; or
(z) 50% or more of the Company’s assets or earning power is sold or transferred (items (x),
(y) and (z) following any of the events described in clause (1) or (2), being each individually
referred to as a “Flip-Over Event”),
each holder of a Right (except as set forth below) shall thereafter have the right to receive, upon
exercise of the Right, a number of shares of the common stock of the acquiring company, which
shares will have a value equal to two times the Exercise Price of the Right. Notwithstanding any
of the foregoing, following the occurrence of any Flip-Over Event, all Rights that are, or (under
certain circumstances specified in the Rights Agreement) were, beneficially owned by any Acquiring
Person will be null and void.
The Purchase Price payable, and the number of Units of Preferred Stock or other securities or
property issuable upon exercise of the Rights are subject to adjustment from time to time to
prevent dilution (i) in the event of a stock dividend on, or a subdivision, combination or the
issuance of any shares of the Company’s capital stock in connection with a reclassification of, the
Preferred Stock; (ii) if holders of the Preferred Stock are granted certain rights or warrants
B-3
to subscribe for Preferred Stock or convertible securities at less than the current market
price of the Preferred Stock, or (iii) upon the distribution to holders of the Preferred Stock of
evidences of indebtedness or assets (excluding regular quarterly cash dividends) or of subscription
rights or warrants (other than those referred to above).
In addition, the number of Rights associated with each share of Common Stock shall be
proportionately adjusted following any (i) dividend on the outstanding shares of Common Stock
payable in shares of Common Stock, (ii) subdivision of the outstanding shares of Common Stock or
(iii) combination of the outstanding shares of Common Stock into a smaller number of shares, by
multiplying the number of Rights associated with each share of Common Stock immediately prior to
such event, by a fraction the numerator of which shall be the total number of shares of Common
Stock outstanding immediately prior to the occurrence of the event and the denominator of which
shall be the total number of shares of Common Stock outstanding immediately following the
occurrence of such event.
With certain exceptions, no adjustments in the Purchase Price will be required until
cumulative adjustments amount to at least 1% of the Purchase Price. No fractional Units will be
issued and, in lieu thereof, an adjustment in cash will be made based on the market price of the
Preferred Stock on the last trading date prior to the date of exercise.
At any time after the Stock Acquisition Date, the Board of Directors of the Company may
exchange the Rights (other than Rights owned by an Acquiring Person), in whole or in part, at an
exchange ratio equal to one share of Class A Common Stock per Class A Right (subject to adjustment)
and one share of Class B Common Stock per Class B Right (subject to adjustment). Any such exchange
shall require the concurrence of at least 75% of the members of the Company’s Board of Directors.
The Company may redeem all, but not less than all, of the Rights at a price of $0.001 per
Right at any time prior to the earlier of the Close of Business on the tenth day after the date in
which there is a public announcement that a Person has acquired beneficial ownership of 15% or more
of the Class A Common Stock alone, 15% or more of the Class B Common Stock alone or 15% or more of
the combined total of the Class A and Class B Common Stock, or April 11, 2017. Any redemption (i)
on or after the first date in which any Person or group has acquired beneficial ownership of 15% or
more of the Class A Common Stock alone, 15% or more of the Class B Common Stock alone or 15% or
more of the combined total of the Class A and Class B Common Stock, or (ii) on or after any change
in control of the Board of Directors of the Company, requires the consent of at least 75% of the
directors of the Company. Immediately upon the action of the Board of Directors ordering
redemption of the Rights, the Rights will terminate and the only right of the holders of Rights
will be to receive the $0.001 redemption price.
Until a Right is exercised, the holder thereof, as such, will have no rights as a stockholder
of the Company, including, without limitation, the right to vote or to receive dividends. While
the distribution of the Rights will not be taxable to stockholders or to the Company, stockholders
may, depending upon the individual circumstances, recognize taxable income in the event that the
Rights are redeemed.
B-4
Prior to the Distribution Date, any of the provisions of the Rights Agreement may be amended
by the Board of Directors of the Company in any manner and without the approval of any holders of
certificates representing shares of Common Stock.
After the Distribution Date, the provisions of the Rights Agreement may be amended by the
Board without the approval of any holders of Rights Certificates in order to cure any ambiguity, to
make changes which do not adversely affect the interests which a majority of the holders of Rights
(excluding the interests of any Acquiring Person) have in common, or to shorten or lengthen any
time period under the Rights Agreement; provided, however, that no amendment to
adjust the time period governing redemption shall be made at such time as the Rights are not then
redeemable, nor any change in the redemption price, final expiration date, Purchase Price or number
of fractional shares of Preferred Stock for which a Right is exercisable.
A copy of the Rights Agreement is being filed with the Securities and Exchange Commission
as an Exhibit to a Registration Statement on Form 8-A. A copy of the Rights Agreement
is available free of charge from the Company. This Summary of Rights to Purchase Series A Junior
Participating Preferred Stock does not purport to be complete and is qualified in its entirety by
reference to the Rights Agreement, which is incorporated herein by reference.
B-5
