Execution Copy
EXHIBIT 99
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THE X.X. XXXXXXXX COMPANY
and
FLEET NATIONAL BANK
as Rights Agent
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Amended and Restated Rights Agreement
Dated as of May 23, 2000
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Table of Contents
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Section Page
Section 1. Certain Definitions ............................................................... 1
Section 2. Appointment of Rights Agent ....................................................... 7
Section 3. Issuance of Rights Certificates ................................................... 7
Section 4. Form of Rights Certificates ....................................................... 9
Section 5. Countersignature and Registration ................................................. 9
Section 6. Transfer, Split Up, Combination and Exchange of Rights Certificates; Mutilated,
Destroyed, Lost or Stolen Rights Certificates ................................... 10
Section 7. Exercise of Rights; Purchase Price; Expiration Date of Rights ..................... 11
Section 8. Cancellation and Destruction of Rights Certificates ............................... 13
Section 9. Reservation and Availability of Shares of Class A Common Stock; Other
Covenants ....................................................................... 13
Section 10. Class A Common Stock Record Date; Etc ............................................ 15
Section 11. Antidilution Adjustments ......................................................... 15
Section 12. Certificate of Adjustments ....................................................... 24
Section 13. Consolidation, Merger or Sale or Transfer of Assets or Earning Power ............. 25
Section 14. Fractional Rights and Fractional Shares .......................................... 27
Section 15. Rights of Action ................................................................. 27
Section 16. Agreement of Rights Holders ...................................................... 28
Section 17. Rights Certificate Holder Not Deemed a Stockholder ............................... 28
Section 18. Concerning the Rights Agent ...................................................... 00
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Xxxxxxx 00. Merger or Consolidation or Change of Name of Rights Agent ........................ 29
Section 20. Duties of Rights Agent ........................................................... 30
Section 21. Change of Rights Agent ........................................................... 32
Section 22. Issuance of New Rights Certificates .............................................. 33
Section 23. Redemption and Termination ....................................................... 34
Section 24. Exchange ......................................................................... 34
Section 25. Notice of Proposed Actions ....................................................... 35
Section 26. Notices .......................................................................... 36
Section 27. Supplements and Amendments ....................................................... 37
Section 28. Successors ....................................................................... 38
Section 29. Determinations and Actions by the Board; etc. .................................... 38
Section 30. Benefits of this Agreement ....................................................... 38
Section 31. Severability ..................................................................... 38
Section 32. Governing Law .................................................................... 39
Section 33. Counterparts ..................................................................... 39
Section 34. Descriptive Headings ............................................................. 39
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RIGHTS AGREEMENT
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This Amended and Restated Rights Agreement, dated as of May 23, 2000 (the
"Rights Agreement") amends and restates the Rights Agreement dated as of June 6,
1990 by and between The X.X. Xxxxxxxx Company, a Massachusetts corporation (the
"Company") and Fleet National Bank (f/k/a BankBoston, N.A., f/k/a The First
National Bank of Boston) (the "Rights Agent").
W I T N E S S E T H:
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WHEREAS, the Board of Directors of the Company (the "Board") authorized on
June 6, 1990 the issuance of rights (collectively, the "Rights," and
individually a "Right"), each Right being a right to purchase, on the terms and
subject to the provisions of this Rights Agreement, shares of the Company's
Class A Common Stock (or in certain circumstances provided in this Agreement,
other securities of the Company or Common Stock or other securities of certain
other Persons); and
WHEREAS, on June 6, 1990 (the "Declaration Date") the Board authorized and
declared a dividend distribution of one Right for every share of Class A Common
Stock and Class B Common Stock of the Company outstanding at the Close of
Business (as hereinafter defined) on June 18, 1990 (the "Dividend Record Date")
and authorized the issuance of, and agreed to issue, one Right (as such number
may be adjusted in accordance with Sections 11(i) or 11(p) hereof) for every
share of Class A Common Stock and Class B Common Stock of the Company issued
between the Dividend Record Date and the Distribution Date (as hereinafter
defined); and
WHEREAS, on May 22, 2000, the Board adopted resolutions providing for the
further amendment and extension of the Rights Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein set forth, the parties hereto hereby agree as follows:
Section 1. Certain Definitions.
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For purposes of this Agreement, the following terms have the meanings
indicated:
(a) "Acquiring Person" shall mean (a) any Person who or which, together
with all Affiliates of such Person, shall be the Beneficial Owner (whether such
Beneficial Ownership is of shares of Class A Common Stock, shares of Class B
Common Stock or shares of Class A Common Stock and Class B Common Stock) of 15%
or more of the shares of Class A Common Stock and Class B Common Stock (taken
together as a single class, treating each share of Class B Common Stock
outstanding as one share of Class A Common Stock outstanding for the purposes of
calculating such Beneficial Ownership) then outstanding or (b)
any Person who or which, together with all Affiliates of such Person, is, as of
May 23, 2000, an Acquiring Person (as such term is defined in the Rights
Agreement dated as of June 6, 1990 between the Company and The First National
Bank of Boston (now known as Fleet National Bank)), as Rights Agent (the "1990
Rights Agreement"), which definition is hereby incorporated by reference,
irrespective of the termination of said 1990 Rights Agreement) under the terms
of the 1990 Rights Agreement; provided, that neither clause (a) nor clause (b)
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shall include: (i) the Company, (ii) any Subsidiary 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 or a Subsidiary
of the Company for or pursuant to the terms of any plan described in clause
(iii) above, or (v) any such Person who (A) has reported or is required to
report such ownership on Schedule 13G under the Exchange Act (or any comparable
or successor report) or on Schedule 13D under the Exchange Act (or any
comparable or successor report) which Schedule 13D does not state any intention
to or reserve the right to control or influence the management or policies of
the Company or engage in any of the actions specified in Item 4 of such Schedule
(other than the disposition of the Common Stock), (B) within 10 Business Days of
being requested by the Company to advise it regarding the same, certifies to the
Company that such Person acquired shares of Class A Common Stock and/or Class B
Common Stock in excess of 14.9% inadvertently or without knowledge of the terms
of the Rights and who, together with all of such Person's Affiliates, thereafter
does not acquire additional shares of Class A Common Stock and/or Class B Common
Stock while the Beneficial Owner of 15% or more of the shares of Class A Common
Stock and Class B Common Stock then outstanding, provided, however, that if the
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Person requested to so certify fails to do so within 10 Business Days, then such
Person shall become an Acquiring Person immediately after such 10 Business Day
Period and (C) if requested to do so by the Company, within a specified number
of Business Days (to be specified by the Company, but in no case fewer than ten)
following such request from the Company to such Person, reduces its Beneficial
Ownership of Common Stock to below 15% of the Class A Common Stock and Class B
Common Stock then outstanding, provided, however, that if the Person requested
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to so reduce its Beneficial Ownership fails to do so within such specified
number of Business Days, then such Person shall become an Acquiring Person
immediately after such specified number of Business Days.
(b) "Act" shall mean the Securities Act of 1933 (or any successor act), as
amended and as may from time to time be in effect.
(c) "Affiliate," with respect to any Person, shall mean any other Person
who is, or who would be deemed to be, an "affiliate" or an "associate" of such
Person within the respective meanings ascribed to such terms in Rule 12b-2 of
the General Rules and Regulations under the Exchange Act, as such Rule is in
effect on the Declaration Date.
(d) A Person shall be deemed the "Beneficial Owner" of, and shall be
deemed to "beneficially own" or have "Beneficial Ownership" of, any securities:
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(i) which such Person or any of such Person's Affiliates has
"beneficial ownership" of within the meaning of Rule 13d-3 of the General
Rules and Regulations under the Exchange Act, as such Rule is in effect on
the Declaration Date;
(ii) which such Person or any of such Person's Affiliates has,
directly or indirectly, the right to acquire (whether such right is
exercisable immediately or after the passage of time) pursuant to any
agreement, arrangement or understanding (whether or not in writing) or upon
the exercise of conversion, exchange or other rights, warrants or options,
or otherwise;
(iii) which such Person or any of such Person's Affiliates has,
directly or indirectly, the right to vote or dispose of, 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"
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of, or to "beneficially own," any security for purposes of this Section
1(d)(iii) as a result of an agreement, arrangement or understanding to vote
such security if such agreement, arrangement or understanding: (A) arises
solely from a revocable proxy given in response to a public proxy or
consent solicitation made pursuant to, and in accordance with, the
applicable proxy solicitation rules and regulations promulgated under the
Exchange Act or (B) is made in connection with, or is to otherwise
participate in, a proxy or consent solicitation made, or to be made,
pursuant to, and in accordance with, the applicable proxy solicitation
rules and regulations promulgated under the Exchange Act, in either case
described in clause (A) or (B) above, whether or not such agreement,
arrangement or understanding is also then reportable by such Person on
Schedule 13D under the Exchange Act (or any comparable or successor
report); or
(iv) which are beneficially owned, directly or indirectly, by any
other Person or any Affiliate thereof with which such Person or any of such
Person's Affiliates has any agreement, arrangement or understanding
(whether or not in writing), for the purpose of acquiring, holding, voting
(except pursuant to a revocable proxy or in connection with a proxy or
consent solicitation described in clause (A) or (B) of the proviso to
Section 1(d)(iii) hereof) or disposing of any securities of the Company;
provided, however, that for purposes of this Section 1(d) a Person shall not be
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deemed the "Beneficial Owner" of, or to "beneficially own," (A) securities
tendered pursuant to a tender or exchange offer made by such Person or any of
such Person's Affiliates 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 Common Stock Event, or (C) securities issuable
upon exercise of Rights which were held by a Person or its Affiliates prior to
the Distribution Date as long as such Person is not responsible for the
occurrence of the Common Stock Event giving rise to the Distribution Date; and
provided, further, however, that nothing in this Section 1(d) shall cause a
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Person engaged in business as an underwriter of securities to be the "Beneficial
Owner" of, or to "beneficially own," any securities acquired through such
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Person's participation in good faith in a firm commitment underwriting until the
expiration of 40 days after the date of such acquisition.
(e) "Board" shall have the meaning set forth in the preamble to this
Agreement.
(f) "Business Day" shall mean any day other than a Saturday, Sunday or a
day on which banking institutions in The Commonwealth of Massachusetts or the
city in which the principal office of the Rights Agent is located are authorized
or obligated by law or executive order to close.
(g) "Class A Common Stock" shall mean the Class A Common Stock, par value
of $1.00 per share, of the Company.
(h) "Class A Common Stock Equivalents" shall have the meaning set forth in
Section 11(a)(iii) hereof.
(i) "Class B Common Stock" shall mean the Class B Common Stock, par value
of $1.00 per share, of the Company.
(j) "Close of Business" on any given date shall mean 5:00 p.m., Boston,
Massachusetts time, on such date; provided, however, that if such date is not a
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Business Day it shall mean 5:00 p.m., Boston, Massachusetts time, on the next
succeeding Business Day.
(k) "Closing Price" shall have the meaning set forth in Section 11(d)
hereof.
(l) "Common Stock" shall mean or shall include the Class A Common Stock
and the Class B Common Stock, except that "Common Stock" when used with respect
to any Person other than the Company shall mean either (i) the common stock (or
other capital stock or shares of beneficial interest) of such Person with the
greatest voting power, or (ii) the equity securities or other equity interests
having power to control or direct the management and affairs of such Person, or
(iii) if such Person is a Subsidiary of another Person, the Person (A) who
ultimately controls such Person that is the Subsidiary and (B) which has
outstanding such common stock (or such other capital stock, equity securities or
interests).
(m) "Common Stock Event" shall mean the occurrence of any event described
in (i) Section 11(a)(ii) hereof or (ii) clause (a), (b) or (c) of the first
sentence of Section 13 hereof.
(n) "Company" shall have the meaning set forth in the preamble to this
Agreement.
(o) "Current Market Price" shall have the meaning set forth in Section
11(d) hereof.
(p) "Current Value" shall have the meaning set forth in Section 11(a)(iii)
hereof.
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(q) "Declaration Date" shall have the meaning set forth in the preamble to
this Agreement.
(r) "Directors" shall mean the members of the Board.
(s) "Disqualified Transferee" shall mean any Person who is a direct or
indirect transferee of any Right from an Acquiring Person or an Affiliate of an
Acquiring Person and became such a transferee (x) after the occurrence of a
Common Stock Event or (y) prior to or concurrently with the Acquiring Person
becoming such and received such Right pursuant to a transfer (whether or not for
value) (A) from the Acquiring Person to holders of its Common Stock or other
equity securities or to any Person with whom the Acquiring Person has any
continuing agreement, arrangement, or understanding (whether or not in writing)
regarding the transferred Right, or (B) which a majority of the Board reasonably
determines is part of a plan, arrangement, or understanding (whether or not in
writing) which has as a primary purpose or effect, the avoidance of Section 7(e)
hereof.
(t) "Distribution Date" shall mean the date which is the earlier of (x)
the 10th Business Day following the Stock Acquisition Date (or such specified or
unspecified date thereafter which is on or after the Dividend Record Date, as
may be determined by a majority of the Board) or (y) the 10th Business Day
following the Offer Commencement Date (or such specified or unspecified date
thereafter which is on or after the Dividend Record Date, as may be determined
by a majority of the Board).
(u) "Dividend Record Date" shall have the meaning set forth in the
preamble to this Agreement.
(v) "Excess Amount" shall have the meaning set forth in Section 11(a)(iii)
hereof.
(w) "Exchange Act" shall mean the Securities Exchange Act of 1934 (or any
successor act), as in effect on the Declaration Date.
(x) "Exchange Ratio" shall have the meaning set forth in Section 24(a)
hereof.
(y) "Expiration Date" shall have the meaning set forth in Section 7(a)
hereof.
(z) "Offer Commencement Date" shall mean the date of the commencement by
any Person, other than (i) the Company, (ii) a Subsidiary of the Company, (iii)
any employee benefit plan of the Company or of any Subsidiary of the Company or
(iv) any Person organized, appointed, or established by the Company or such
Subsidiary pursuant to the terms of any such plan, of a tender or exchange offer
(including when such offer is first published or sent or given within the
meaning of Rule 14d-2(a) of the General Rules and Regulations under the Exchange
Act) if upon consummation thereof the Person and Affiliates thereof would be the
Beneficial Owner (whether such Beneficial Ownership is of shares of Class A
Common
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Stock, shares of Class B Common Stock or shares of Class A Common Stock and
Class B Common Stock) of 15% or more of the then outstanding shares of Class A
Common Stock and Class B Common Stock (taken together as a single class,
treating each share of Class B Common Stock outstanding as one share of Class A
Common Stock outstanding for the purposes of calculating such Beneficial
Ownership) (including any such date which is after the date of this Agreement
and prior to the issuance of the Rights thereafter).
(aa) "Officers' Certificate" has the meaning set forth in Section 20(b)
hereof.
(bb) "Other Consideration" has the meaning set forth in Section 6(a)
hereof.
(cc) "Person" shall mean a corporation, association, partnership, limited
liability company, joint venture, trust, estate, organization, business, entity
or individual.
(dd) "Purchase Price" shall have the meaning set forth in Section 7(b)
hereof.
(ee) "Redemption Price" shall have the meaning set forth in Section 23
hereof.
(ff) "Rights" shall have the meaning set forth in the preamble to this
Agreement.
(gg) "Rights Agent" shall have the meaning set forth in the preamble of
this Agreement subject to the appointment of a successor Rights Agent pursuant
to Section 21 hereof.
(hh) "Rights Certificates" shall have the meaning set forth in Section 3(a)
hereof.
(ii) "Stock Acquisition Date" shall mean the later of (i) the date of the
first public announcement by an Acquiring Person or the Company that an
Acquiring Person has become such (including the first date on which any filing
with any governmental authority disclosing that an Acquiring Person has become
such becomes available to the public), or (ii) the date on which an executive
officer of the Company has actual knowledge that an Acquiring Person has become
such.
(jj) "Subsidiary" shall mean, as of any date, any Person of which the
Company (or other specified Person) owns directly, or indirectly through a
Subsidiary or Subsidiaries, at least a majority of the outstanding capital stock
(or other shares of beneficial interest) entitled to vote generally, or holds
directly, or indirectly through a Subsidiary or Subsidiaries, at least a
majority of partnership or similar interests, or is a general partner, or of
which the Company (or other specified Person) owns voting securities sufficient
to elect at least a majority of the directors of such Person.
(kk) "Substitution Period" shall have the meaning set forth in Section
11(a)(iii) hereof.
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(ll) "Summary of Rights" shall have the meaning set forth in Section 3(b)
hereof.
(mm) "Trading Day" shall mean a day on which the principal national
securities exchange on which such security is listed or admitted to trading is
open for the transaction of business or, if such security is not listed or
admitted to trading on any national securities exchange, a day which is a
Business Day.
Section 2. Appointment of Rights Agent.
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The Company hereby appoints the Rights Agent to act as agent for the
Company and the holders of the Rights (who, in accordance with Section 3 hereof,
shall prior to the Distribution Date also be the holders of Common Stock) in
accordance with the terms and conditions hereof, and the Rights Agent hereby
accepts such appointment. The Company may from time to time, upon prior written
notice to the Rights Agent, appoint such Co-Rights Agents as it may deem
necessary or desirable, upon ten (10) days' prior written notice to the Rights
Agent. The Rights Agent shall have no duty to supervise, and shall in no event
be liable for, the acts or omissions of any such Co-Rights Agent. The respective
duties of the Rights Agent and any Co-Rights Agent shall be as the Company shall
determine.
Section 3. Issuance of Rights Certificates.
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(a) Until the Distribution Date, (i) the Rights will be evidenced (subject
to the provisions of Section 3(b) hereof) by the certificates representing
shares of Common Stock registered in the names of the holders of the Common
Stock (which certificates shall be deemed also to be certificates for the
associated Rights) and not by separate rights certificates, and (ii) the Rights
will be transferable only in connection with the transfer of the associated
shares of Common Stock. As soon as practicable after the Distribution Date, the
Rights Agent will 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 stock transfer
records of the Company, one or more rights certificates, in substantially the
form of Exhibit A hereto (the "Rights Certificates"), evidencing in the
aggregate that number of Rights to which such holder is entitled in accordance
with the provisions of this Agreement. As of and after the Distribution Date,
the Rights will be evidenced solely by such Rights Certificates. The Rights are
exercisable only in accordance with the provisions of Section 7 hereof and are
redeemable only in accordance with Section 23 hereof.
(b) The Company caused a copy of a Summary of Rights to be sent by first-
class, postage prepaid mail, to each record holder of the Common Stock as of the
Close of Business on the Dividend Record Date, at the address of such holder
shown on the stock transfer records of the Company. With respect to certificates
for the Common Stock outstanding as of the Dividend Record Date, until the
Distribution Date, the Rights associated with the shares of Common Stock
represented by such certificates will be evidenced by such certificates for the
Common Stock and the registered
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holders of the Common Stock shall also be the registered holders of the
associated Rights. Until the Distribution Date (or the earlier redemption,
expiration or termination of the Rights), the surrender for transfer of any of
the certificates representing shares of the Common Stock outstanding on the
Dividend Record Date, with or without a copy of the Summary of Rights, shall
also constitute the transfer of the Rights associated with the Common Stock
represented by such certificate.
(c) Rights shall be issued in respect of all shares of Common Stock issued
(whether originally issued or delivered from the Company's treasury) after the
Dividend Record Date but prior to the earliest of (i) the Distribution Date,
(ii) the Expiration Date, or (iii) the redemption of the Rights. Certificates
representing such shares of Common Stock and certificates issued on transfer of
such shares of Common Stock, with or without a copy of the Summary of Rights,
prior to the Distribution Date (or earlier expiration or redemption of the
Rights) shall be deemed also to be certificates for the associated Rights, and
commencing as soon as reasonably practicable following May 23, 2000 shall bear
the following legend (or a legend substantially in the form thereof):
This certificate also evidences and entitles the holder to Rights set
forth in a Rights Agreement between the issuer and Fleet National Bank
(f/k/a The First National Bank of Boston), as Rights Agent (the
"Rights Agent"), dated as of June 6, 1990, as amended and restated on
May 23, 2000 (the "Rights Agreement"), the terms of which are
incorporated herein by reference and a copy of which is on file at the
principal offices of both the issuer and the Rights Agent. The Rights
Agent will mail to the registered holder of this certificate a copy of
the Rights Agreement, as in effect on the date of mailing, without
charge upon written request. Under certain circumstances set forth in
the Rights Agreement, such Rights will be evidenced by separate
certificates and will no longer be evidenced by this certificate.
Under certain circumstances set forth in the Rights Agreement, Rights
issued to, or held by any Person who is, was or becomes, or acquires
shares from, an Acquiring Person or any Affiliate of an Acquiring
Person (as each such term is defined in the Rights Agreement and
generally relating to the ownership or purchase of large
shareholdings), whether currently held by or on behalf of such Person
or Affiliate or by certain subsequent holders, may become null and
void.
Until the Distribution Date or the earlier redemption, expiration or termination
of the Rights, the Rights associated with the Common Stock shall be evidenced by
the Common Stock certificates alone and the registered holders of Common Stock
shall also be the registered holders of the associated Rights, and the surrender
for transfer of any of such certificates shall also constitute the transfer of
the Rights associated with the Common Stock represented by such certificate.
Rights shall be issued to the extent provided in Section 22 hereof after the
Distribution Date and prior to the Expiration Date.
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Section 4. Form of Rights Certificates.
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(a) The Rights Certificates (and the form of assignment and the form of
exercise notice and certificate to be printed on the reverse thereof) shall each
be substantially in the form set forth in Exhibit A hereto and may have such
marks of identification or designation and such legends, summaries or
endorsements printed thereon as the Company may deem appropriate and as are not
inconsistent with the provisions of this Agreement, or as may be required to
comply with any applicable law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on which the Rights
may from time to time be listed or traded, or to conform to usage. Subject to
the provisions of Sections 11 and 22 hereof, the Rights Certificates, whenever
distributed, shall be dated as of the Dividend Record Date (or, if the shares
pursuant to which the Rights are attached are issued thereafter, such date of
issuance), shall include the date of countersignature and on their face shall
entitle the holders thereof to purchase such number of shares of Class A Common
Stock as shall be set forth therein at the Purchase Price (as hereinafter
defined), but the amount and type of securities issuable upon the exercise of
each Right and the Purchase Price shall be subject to adjustment as provided
herein.
(b) Any Rights Certificate issued pursuant to Section 3(a) or 22 hereof
that represents Rights beneficially owned by (i) any Acquiring Person or any
Affiliate of an Acquiring Person, or (ii) any Disqualified Transferee, and any
other Rights Certificate issued pursuant to Section 6 or 11 hereof upon the
transfer, exchange, replacement, or adjustment of any such Rights Certificate,
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 (which includes both affiliates and associates) of an
Acquiring Person (as each such term is defined in the Rights Agreement
between the issuer and Fleet National Bank (f/k/a The First National
Bank of Boston), as Rights Agent (the "Rights Agent"), dated as of
June 6, 1990, as amended and restated on May 23, 2000 (the "Rights
Agreement")). Accordingly, this Rights Certificate and the Rights
represented hereby may become null and void in the circumstances
specified in Section 7(e) of the Rights Agreement. The Rights Agent
will mail to the registered holder of this certificate a copy of the
Rights Agreement, as in effect on the date of such mailing, without
charge upon written request.
Section 5. Countersignature and Registration.
---------------------------------
The Rights Certificates shall be executed on behalf of the Company by its
Chairman of the Board, President, Treasurer or any Vice President, either
manually or by facsimile signature, and shall have affixed thereto the Company's
seal or facsimile thereof which shall be attested by the Clerk or an Assistant
Clerk of the Company, either manually or by facsimile signature. The Rights
Certificates shall be countersigned, either manually or by facsimile signature,
by the Rights Agent and shall not be valid for any purpose unless so
countersigned.
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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, issued, and delivered 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. Any Rights Certificate 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 Agreement any such person was not
such an officer.
Following the Distribution Date, the Rights Agent shall keep or cause to be
kept, at the office of the Rights Agent 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 countersignature thereof by the Rights Agent.
Section 6. Transfer, Split Up, Combination and Exchange of Rights Certificates;
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Mutilated, Destroyed, Lost or Stolen Rights Certificates.
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(a) Subject to the provisions of Sections 4(b), 7(e), and 14 hereof, at
any time after the Close of Business on the Distribution Date, and at or prior
to the earlier of the Close of Business on the Expiration Date or the redemption
of the Rights, any Rights Certificate may be transferred, split up, combined or
exchanged for another Rights Certificate or Rights Certificates, entitling the
registered holder to purchase a like number of shares of Class A Common Stock
(or, following a Common Stock Event, Class A Common Stock and/or such other
securities, cash, or other assets as shall be issuable in respect of the Rights
in accordance with the terms of this Agreement (such other securities, cash or
other assets being referred to herein as "Other Consideration")) as the Rights
Certificate 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 shall make such request in
writing delivered to the Rights Agent, and shall surrender the Rights
Certificate to be transferred, split up, combined, or exchanged at the office of
the Rights Agent designated for such purpose, accompanied by a signature
guarantee and such other documentation as the Rights Agent may reasonably
request. Neither the Rights Agent nor the Company shall be obligated to take any
action whatsoever with respect to the transfer of any such surrendered Rights
Certificate until the registered holder shall have completed and signed the
certificate contained in the form of assignment on the reverse side of such
Rights Certificate and shall have provided such additional evidence of the
identity of the Beneficial Owner from whom the Rights evidenced by such Rights
Certificate are to be transferred (or the Beneficial Owner to whom such Rights
are to be transferred) or Affiliates thereof as the Company shall reasonably
request. Thereupon, subject to Sections 4(b), 7(e) and 14 hereof, the Company
shall execute and the Rights Agent shall countersign and deliver to the Person
entitled thereto a Rights Certificate or Rights Certificates, as the case may
be, as so requested. The Company may
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require payment by the holders of Rights of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer, split
up, combination or exchange of Rights Certificates which the Company is not
required to pay in accordance with Section 9(d) hereof.
(b) Upon receipt by the Company and the Rights Agent of evidence
reasonably satisfactory to them of the loss, theft, destruction or mutilation of
a Rights Certificate, and, in case of loss, theft or destruction, the receipt of
indemnity or security satisfactory to them, and upon 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, accompanied by a signature guarantee and such other documentation
as the Rights Agent may reasonably request, 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) Except as otherwise provided herein, the registered holder of any
Rights Certificate may exercise the Rights evidenced thereby in whole or in part
at any time from and after the Distribution Date and at or prior to the Close of
Business on May 23, 2010 (the "Expiration Date") or the earlier redemption of
the Rights. Immediately after the Close of Business on the Expiration Date (or
the earlier redemption of the Rights), all Rights shall be extinguished and all
Rights Certificates shall become null and void. To exercise Rights, the
registered holder of the Rights Certificate evidencing such Rights shall
surrender such Rights Certificate, with the form of election to purchase on the
reverse side thereof and the certificate contained therein duly executed, to the
Rights Agent at the office of the Rights Agent designated for such purpose,
accompanied by a signature guarantee and such other documentation as the Rights
Agent may reasonably request, together with payment in cash, only by electronic
or wire transfer, or by certified check or bank check, of the Purchase Price
with respect to the total number of shares of Class A Common Stock (or, after a
Common Stock Event, shares and/or similar units of Class A Common Stock and/or
Other Consideration) as to which the Rights are exercised (which payment shall
include any additional amount payable by such Person in accordance with Section
9(d) hereof). The Rights Agent shall promptly deliver to the Company all
payments of the Purchase Price received in respect of Rights Certificates
accepted for exercise.
(b) The purchase price for each share of Class A Common Stock issuable
pursuant to the exercise of a Right (the "Purchase Price") shall initially be
$92.00, shall be subject to adjustment as provided in Section 11 hereof, and
shall be payable in lawful money of the United States of America.
(c) Upon receipt of a Rights Certificate representing the Rights, with the
form of election to purchase set forth on the reverse side thereof and the
certificate contained therein
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duly executed, accompanied by payment of the Purchase Price, with respect to
each Right so exercised, the Rights Agent, subject to Sections 7(e), 11(a)(iii)
and 20(k) hereof, shall thereupon promptly (i) requisition from any transfer
agent of the Class A Common Stock (or from the Company if there shall be no such
transfer agent, or make available if the Rights Agent is such transfer agent)
certificates for the total number of shares of Class A Common Stock to be
purchased and the Company hereby irrevocably authorizes such transfer agent to
comply with any such request, (ii) after receipt of such certificates, cause the
same to be delivered to or upon the order of the registered holder of such
Rights Certificate, registered in such name or names as may be designated in
writing by such holder, and (iii) when appropriate, requisition from the Company
the amount of cash to be paid in lieu of issuance of a fractional share in
accordance with Section 14 hereof and after receipt promptly deliver such cash
to or upon the order of the registered holder of such Rights Certificate. After
the occurrence of a Common Stock Event, the Company shall make all necessary
arrangements so that any Other Consideration then deliverable in respect of the
Rights is available for distribution by the Rights Agent. For purposes of this
Section 7, the Rights Agent shall be entitled to rely, and shall be protected in
relying, on an Officers' Certificate from the Company to the effect that the
Distribution Date has occurred.
(d) Subject to Sections 4(b), 7(e) and 14 hereof, 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 executed and delivered by the Company to
the Rights Agent and countersigned and delivered by the Rights Agent to the
registered holder of such Rights Certificate or to such holder's duly authorized
assigns.
(e) Notwithstanding anything in this Agreement to the contrary, from and
after the first occurrence of a Common Stock Event, any Rights beneficially
owned by (i) an Acquiring Person or an Affiliate of an Acquiring Person, or (ii)
a Disqualified Transferee shall become null and void without any further action,
and no holder of such Rights shall have any rights whatsoever with respect to
such Rights, whether under any provision of this Agreement or otherwise. The
Company shall use all reasonable efforts to ensure that the provisions of this
Section 7(e) and Section 4(b) hereof are complied with, but the Company shall
have no liability to any holder of Rights Certificates or other Person and none
of the terms of this Agreement or the Rights shall be deemed to be waived with
respect to such holder or other Person as a result of any failure by the Company
to make any determinations with respect to an Acquiring Person or any Affiliate
of an Acquiring Person or Disqualified Transferees hereunder or any failure to
have a legend placed on any Rights Certificate in accordance with Section 4(b)
hereof or on any Common Stock certificate in accordance with Section 3(c)
hereof.
(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 holder of any Rights Certificate upon the occurrence of any
purported exercise thereof unless such holder shall have (i) completed and
signed the certificate contained in the form of election to
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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 from whom the Rights evidenced by such Rights Certificate are
to be transferred (or the Beneficial Owner to whom such Rights are to be
transferred) or Affiliates thereof as the Company shall reasonably request.
Section 8. Cancellation and Destruction of Rights Certificates.
---------------------------------------------------
All Rights Certificates surrendered for the purpose of and accepted for
exercise, or surrendered for the purpose of redemption, transfer, split up,
combination or exchange shall, if surrendered to the Company or to any of its
agents (other than the Rights Agent), be delivered to the Rights Agent for
cancellation or in canceled form, or, if surrendered to the Rights Agent, shall
be canceled by it, and no Rights Certificates shall be issued in lieu thereof
except as expressly permitted by any of the provisions of this Agreement. The
Company shall deliver to the Rights Agent for cancellation and retirement, and
the Rights Agent shall so cancel and retire, any other Rights Certificates
purchased or retired by the Company otherwise than upon the exercise thereof.
The Rights Agent shall deliver all canceled Rights Certificates to the Company,
or may, at the written request of the Company, but shall not be required to,
destroy such canceled Rights Certificates, and in such case shall deliver a
certificate of destruction thereof to the Company.
Section 9. Reservation and Availability of Shares of Class A Common Stock;
---------------------------------------------------------------
Other Covenants.
---------------
(a) The Company covenants and agrees that as long as the Rights are
outstanding, it shall use reasonable efforts to cause to be reserved and kept
available out of its authorized and unissued shares of Class A Common Stock (or,
following the occurrence of a Common Stock Event, out of its authorized and
unissued shares of Class A Common Stock and/or Other Consideration, or out of
its authorized and issued shares held in its treasury), the number of shares of
Class A Common Stock (or, following a Common Stock Event, shares and/or similar
units of Class A Common Stock and/or Other Consideration) that, except as
provided in Section 11(a)(iii) hereof, would then be sufficient to permit the
exercise in full of all outstanding Rights; provided, however, that the
-------- -------
reservation of such shares shall be subject and subordinate to any other
reservation of such shares made by the Company at any time for any lawful
purpose; provided, further, however, that in no event shall such failure to so
-------- ------- -------
reserve shares affect the rights of any holder of Rights hereunder.
(b) The Company covenants and agrees that so long as the Class A Common
Stock (or, following a Common Stock Event, shares and/or similar units of Class
A Common Stock and/or Other Consideration) issuable upon the exercise of Rights
may be listed on any national securities exchange, the Company shall use its
best efforts to cause all shares (or similar units) reserved for such issuance
to be listed on such exchange upon official notice of issuance upon such
exercise.
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(c) The Company covenants and agrees that it shall take all such action as
may be necessary to ensure that each share of Class A Common Stock (or,
following a Common Stock Event, each share and/or similar unit of Class A Common
Stock and/or Other Consideration) delivered upon exercise of Rights shall, at
the time of delivery of the certificates for such shares (or units), subject to
payment in full of the Purchase Price, be duly and validly authorized and issued
and fully paid and nonassessable.
(d) The Company covenants and agrees that it shall pay when due and payable
any and all federal and state transfer taxes and similar charges which may be
payable in respect of the issuance or delivery of the Rights Certificates or of
any shares of Class A Common Stock (or, following the occurrence of a Common
Stock Event, each share and/or similar unit of Class A Common Stock and/or Other
Consideration) upon the exercise of Rights; provided, however, that the Company
-------- -------
shall not be required to pay any transfer tax which may be payable in respect of
any transfer involved in the transfer or delivery of Rights Certificates or in
the issuance or delivery of certificates for any shares of Class A Common Stock
(or, following the occurrence of a Common Stock Event, each share and/or similar
unit of Class A Common Stock and/or Other Consideration) in a name other than
that of the registered holder of the Rights Certificate evidencing Rights
surrendered for exercise or to issue or deliver any certificates for any shares
of Class A Common Stock (and, following the occurrence of a Common Stock Event,
any shares and/or similar units of Class A Common Stock and/or Other
Consideration) upon the exercise of any Rights until any such tax shall have
been paid (any such tax being payable by the holder of such Rights Certificate
at the time of surrender thereof) or until it has been established to the
Company's satisfaction that no such tax is due.
(e) The Company shall use its best efforts (i) to file, as soon as
practicable following the earliest date after the first occurrence of a Common
Stock Event on which the consideration to be delivered by the Company upon
exercise of the Rights has been determined in accordance with this Agreement, or
as soon as is required by law following the Distribution Date, as the case may
be, a registration statement under the Act, with respect to the securities
issuable upon exercise of the Rights on an appropriate form, (ii) to cause such
registration statement to become effective as soon as practicable after such
filing, and (iii) to cause such registration statement to remain effective (with
a prospectus at all times meeting the requirements of the Act) until the earlier
of (A) the date as of which the Rights are no longer exercisable for such
securities, or (B) the Expiration Date or earlier redemption 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 of the
United States in connection with the exercisability of the Rights. The Company
may 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(e), the exercisability of the Rights in order to prepare and file such
registration statement or to permit it to become effective. Upon any such
suspension, the Company shall issue a public announcement stating that the
exercisability of the Rights has been temporarily suspended. The Company shall
thereafter issue a public announcement at such time as the suspension is no
longer in effect. Notwithstanding any provision of this Agreement to the
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contrary, the Rights shall not be exercisable in any jurisdiction unless the
requisite qualification in such jurisdiction shall have been obtained.
Section 10. Class A Common Stock Record Date; Etc.
-------------------------------------
Each Person in whose name any certificate for any shares of Class A Common
Stock (or, following the occurrence of a Common Stock Event, shares and/or
similar units of Class A Common Stock and/or Other Consideration) is issued upon
the exercise of Rights shall for all purposes be deemed to have become the
holder of record of such shares of Class A Common Stock (or such shares and/or
similar units of Class A Common Stock and/or Other Consideration, as the case
may be) represented thereby, and such certificate shall be dated the date which
is the later of (i) the date upon which the Rights Certificate evidencing such
Rights was duly surrendered, or (ii) the date upon which payment of the Purchase
Price (and any applicable transfer taxes) in respect thereof was made; provided,
--------
however, that if such date is a date upon which the relevant transfer books of
-------
the Company are closed, such Person shall be deemed to have become the record
holder of such shares (or Other Consideration) on, and such certificate shall be
dated, the next succeeding Business Day on which such transfer books of the
Company are open; provided, further, that the Company covenants and agrees that
-------- -------
it shall not close such transfer books for a period exceeding ten consecutive
days. Prior to the exercise of the Rights evidenced thereby (which shall be
deemed to have occurred on the date such certificate for shares and/or similar
units of Class A Common Stock or Other Consideration shall be dated in
accordance with this Section 10), the holder of a Rights Certificate, as such,
shall not be entitled to any rights of a security holder of the Company with
respect to the shares of Class A Common Stock (and/or such shares or similar
units of Class A Common Stock or Other Consideration) 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 expressly provided herein.
Section 11. Antidilution Adjustments.
------------------------
The Purchase Price and the number and kind of securities 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 that the Company shall at any time after the date of
this Agreement (A) declare and pay a dividend on the Class A Common Stock
or Class B Common Stock payable in shares of Class A Common Stock or Class
B Common Stock, (B) subdivide the outstanding Class A Common Stock or Class
B Common Stock, (C) combine the outstanding Class A Common Stock or Class B
Common Stock into a smaller number of shares, or (D) issue, change, or
alter any of its shares of capital stock in a reclassification or
recapitalization (including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing or
-15-
surviving Person), except as otherwise provided in this Section 11(a) and
Section 7(e) hereof, then, and in each such case, the Purchase Price in
effect at the time of the record date for such dividend or the effective
time of such subdivision, combination, reclassification or
recapitalization, and the number and kind of shares of capital stock
issuable upon exercise of the Rights at such time, shall be proportionately
adjusted so that the holder of any Right exercised after such time shall be
entitled to receive the aggregate number and kind of shares of Common Stock
or other capital stock which, if such Right had been exercised immediately
prior to such time at the Purchase Price then in effect and at a time when
the transfer books for the Common Stock (or other capital stock) 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,
reclassification or recapitalization. If an event occurs which would
require an adjustment under both this Section 11(a)(i) and Section
11(a)(ii) hereof, the adjustment provided 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
(A) any Person shall at any time after the Declaration Date
become an Acquiring Person; or
(B) any Acquiring Person or any Affiliate of any Acquiring
Person, at any time after the Declaration Date, directly or
indirectly, shall (1) merge into the Company or otherwise combine with
the Company, and the Company shall be the continuing or surviving
corporation of such merger or combination and either or both of the
Class A Common Stock and/or the Class B Common Stock of the Company
shall remain outstanding and no shares thereof shall be changed or
otherwise transformed into stock or other securities of any other
Person or the Company or cash or any other property, (2) in one or
more transactions, transfer any assets to the Company in exchange (in
whole or in part) for shares of any class of its equity securities or
for securities exercisable for or convertible into shares of any such
class or otherwise obtain from the Company, with or without
consideration, any additional shares of any such class or securities
exercisable for or convertible into shares of any such class (other
than as part of a pro rata distribution to all holders of such class),
(3) sell, purchase, lease, exchange, mortgage, pledge, transfer or
otherwise dispose (in one transaction or a series of transactions) to,
from or with the Company or any of the Company's Subsidiaries, assets
with an aggregate fair market value in excess of 25% of the assets of
the Company and its Subsidiaries determined on a consolidated basis on
terms and conditions less favorable to the Company than the Company
would be able to obtain through arm's-length negotiation with an
unaffiliated third party, (4) receive any compensation from the
Company or any of the Company's Subsidiaries other than compensation
as a director of the
-16-
Company or for full-time employment as a regular employee at rates in
accordance with the Company's (or such Subsidiary's) past practices,
(5) receive the benefit (except proportionately as a stockholder), of
any loans, advances, guarantees, pledges or other financial assistance
provided by the Company or any of its Subsidiaries on terms and
conditions less favorable to the Company (or such Subsidiary) than the
Company would be able to obtain through arm's-length negotiation with
an unaffiliated third party or (6) commence a tender or exchange offer
for securities of the Company; or
(C) during such time as there is an Acquiring Person at any time
after the Declaration Date, there shall be any reclassification of
securities (including any combination thereof), or recapitalization of
the Company, or any merger or consolidation of the Company with any of
its Subsidiaries (whether or not with or into or otherwise involving
an Acquiring Person or any Affiliate of an Acquiring Person), or any
repurchase by the Company or any of its Subsidiaries of shares of the
Common Stock of the Company, or any other class or series of
securities issued by the Company, which reclassification,
recapitalization, merger, consolidation or repurchase is effected at a
time when a majority of the Board consists of persons who are the
Acquiring Person or its Affiliates, or nominees or designees of any
thereof, which has the effect, directly or indirectly, of increasing
by more than 1% the proportionate share of the outstanding shares of
any class of equity securities or securities exercisable for or
convertible into any class of equity securities of the Company or any
of its Subsidiaries which is directly or indirectly owned by an
Acquiring Person or any Affiliate of an Acquiring Person
then, in each such case, upon the Close of Business 10 Business Days after
the occurrence of such event, proper provision shall be made so that each
holder of a Right, except as provided in Section 7(e) hereof, shall
thereafter have the right to receive, upon exercise thereof at the Purchase
Price in effect at the time of exercise in accordance with the terms of
this Agreement, in lieu of one share of Class A Common Stock, such number
of shares of Class A Common Stock of the Company as shall equal the result
obtained by (x) multiplying an amount equal to the then current Purchase
Price by an amount equal to the number of shares of Class A Common Stock
for which a Right was or would have been exercisable immediately prior to
the first occurrence of any such event whether or not such Right was then
exercisable, and (y) dividing that product by 50% of the Current Market
Price per share of the Class A Common Stock of the Company (as defined in
Section 11(d) hereof) determined as of the date of such first occurrence.
(iii) In lieu of issuing whole or fractional shares of Class A Common
Stock in accordance with Section 7(c) hereof, the Company shall (i) in the
event that the number of shares of Class A Common Stock which are
authorized by the Company's charter
-17-
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 Section 7(c) hereof, or (ii) if a majority of
the Board determines that it would be appropriate and not contrary to the
interests of the holders of Rights (other than any Acquiring Person or
Disqualified Transferee or any Affiliate of the Acquiring Person or
Disqualified Transferee), (A) determine an amount, if any, (the "Excess
Amount") equal to the excess of (1) the value (the "Current Value") of the
whole or fractional shares of Class A Common Stock issuable upon the
exercise of a Right in accordance with Section 7(c) hereof, over (2) the
Purchase Price, and (B) with respect to each Right, (subject to Section
7(e) hereof) make adequate provision to substitute for such whole or
fractional shares of Class A Common Stock, upon payment of the applicable
Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Class
A Common Stock or other equity securities of the Company (including,
without limitation, shares or units of Class B Common Stock or preferred
stock which the Board has deemed in good faith to have the same value as a
share of Class A Common Stock (such other equity securities or shares of
preferred stock being referred to herein as "Class A Common Stock
Equivalents")), (4) debt securities of the Company, (5) other assets, or
(6) any combination of the foregoing (which would include the additional
consideration provided to any holder by reducing the Purchase Price)
having an aggregate value equal to the Current Value, where such aggregate
value has been determined by the Board; provided, however, subject to the
-------- -------
provisions of Section 9(e) hereof, that if the Company shall not have made
adequate provision to deliver value pursuant to clause (B) above within 30
days following the Close of Business 10 Business Days after the first
occurrence of a Common Stock Event described in Section 11(a)(ii) hereof,
then the Company shall be obligated to deliver, upon the surrender for
exercise of a Right and without requiring payment of the Purchase Price,
whole or fractional shares of Class A Common Stock (to the extent
available) and then, if necessary, cash, securities, and/or assets which in
the aggregate are equal to the Excess Amount. If the Board shall determine
in good faith that it is likely that sufficient additional shares of Class
A Common Stock or Class A Common Stock Equivalents could be authorized for
issuance upon exercise in full of the Rights, the 30-day period set forth
above may be extended to the extent necessary, but not more than 90 days
following the Close of Business 10 Business Days after the first occurrence
of such a Common Stock Event (such 30 day period) as it may be extended to
90 days, is referred to herein as the "Substitution Period"). To the extent
that the Company determines that some action is to be taken pursuant to the
preceding provisions of this Section 11(a)(iii), the Company (x) shall
provide, subject to Section 7(e) hereof, that (except as to the form of
consideration which shall be determined as appropriate by a majority of the
Board) such action shall apply uniformly to all outstanding Rights which
shall not have become null and void, and (y) may suspend the exercisability
of the Rights until the expiration of the Substitution Period in order to
seek any authorization of additional shares and/or to decide the
appropriate form of distribution to be made pursuant to such provisions and
to determine the value thereof. In the event of any such suspension, the
Company shall
-18-
issue a public announcement stating that the exercisability of the Rights
has been temporarily suspended. The Company shall thereafter issue a public
announcement at such time as the suspension is no longer in effect. For
purposes of this Section 11(a)(iii), the value of the Class A Common Stock
issuable upon exercise of a Right in accordance with Section 7(c) hereof
shall be the Current Market Price per share of the Class A Common Stock (as
determined pursuant to Section 11(d) hereof) on the Close of Business 10
Business Days after the date of the first occurrence of such a Common Stock
Event and the value of any Class A Common Stock Equivalent shall be deemed
to be equal to the Current Market Price per share of the Class A Common
Stock on such date.
(b) In the event the Company shall, after the Dividend Record Date, fix a
record date for the issuance of any options, warrants, or other rights to all
holders of Class A Common Stock and/or Class B Common Stock entitling them (for
a period expiring within 45 calendar days after such record date) to subscribe
for or purchase (i) Class A Common Stock or (ii) securities convertible into or
exchangeable for Class A Common Stock at a price per share of Class A Common
Stock (or having a conversion price per share of Class A Common Stock, if a
security is convertible into Class A Common Stock) less than the Current Market
Price per share of Class A Common Stock (determined in accordance with Section
11(d) hereof) determined as of such record date, the Purchase Price to be in
effect after such record date shall be determined by multiplying the Purchase
Price in effect immediately prior to such record date by a fraction, the
numerator of which shall be the number of shares of Class A Common Stock
outstanding on such record date plus the number of shares of Class A Common
Stock which the aggregate minimum offering price of the total number of shares
of Class A Common Stock so to be offered (and/or the aggregate minimum
conversion price of such 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 Class A Common Stock outstanding on such record date plus the
maximum number of additional shares of Class A Common Stock to be offered for
subscription or purchase (or the maximum number of shares into which such
convertible securities so to be offered are convertible). In case such
subscription price may be paid by delivery of consideration part or all of which
shall be in a form other than cash, for purposes of this Section 11(b) the value
of such consideration shall be the fair market value thereof as determined in
good faith by the Board (which determination shall be described in an Officers'
Certificate filed with the Rights Agent). Shares of Class A Common 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 options,
warrants or other rights 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 (subject, however, to such other adjustments as are provided
herein).
(c) In the event that the Company shall, after the Dividend Record Date,
fix a record date for the making of a distribution to all holders of Class A
Common Stock and/or
-19-
Class B Common Stock (including any such distribution made in connection with a
consolidation or merger in which the Company is the surviving or continuing
Person) of evidences of indebtedness, cash (other than cash dividends paid out
of the earnings or retained earnings of the Company and its Subsidiaries
determined on a consolidated basis in accordance with generally accepted
accounting principles consistently applied), other property (other than a
dividend payable in shares of Class A Common Stock or Class B Common Stock, but
including any dividend payable in capital stock other than Class A Common Stock
or Class B Common 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, of which the numerator
shall be (i) the Current Market Price per share of Class A Common Stock (as
defined in Section 11(d) hereof) determined as of such record date, less
----
(ii) the sum of (A) that portion of cash plus (B) the fair market value, as
determined in good faith by the Board (which determination shall be described in
an Officers' Certificate filed with the Rights Agent) of that portion of such
evidences of indebtedness, such other property, and/or such subscription rights
or warrants applicable to one share of Class A Common Stock and of which the
denominator shall be such Current Market Price per share of the Class A Common
Stock. Such adjustments shall be made successively whenever such a record date
is fixed; and in the event such distribution is not so made, the Purchase Price
shall again be adjusted to be the Purchase Price which would then be in effect
if such record date had not been fixed (subject, however, to such other
adjustments as are provided herein).
(d) For purposes of any computation pursuant to Section 11(a)(iii) hereof,
the "Current Market Price" per share (or unit) of any security on any date shall
be deemed to be the average of the daily Closing Price of such security for the
10 consecutive Trading Days immediately after such date, and for the purpose of
any other computation hereunder, the "Current Market Price" per share (or unit)
of any security on any date shall be deemed to be the average of the daily
Closing Price of such security for the 20 consecutive Trading Days immediately
prior to such date; provided, however, that in the event that the Current Market
-------- -------
Price per share of such security is determined during a period following the
announcement by the issuer of such security of (i) a dividend or distribution on
such security payable in shares (or units) of such security or securities
convertible into shares (or units) of such security, or (ii) any subdivision,
combination or reclassification of such security, and prior to the expiration of
such 10 Trading Days or 20 Trading Days after (A) the ex-dividend date for such
dividend or distribution, or (B) the record date for such subdivision,
combination or reclassification, as the case may be, then, and in each such
case, the "Current Market Price" shall be the Closing Price of such security on
the last day of such respective 10 Trading Day or 20 Trading Day period. For
purposes of this Agreement, the "Closing Price" of any security on any day shall
be the last sale price, regular way, with respect to shares (or units) of such
security, or, in case no such sale takes place on such day, the average of the
closing bid and asked prices, regular way, with respect to such security, in
either case as reported in the principal consolidated transaction reporting
system with respect to securities listed or admitted to
-20-
trading on the New York Stock Exchange; or, if such security is not listed or
admitted to trading on the New York Stock Exchange, as reported in the principal
consolidated transaction reporting system with respect to securities listed on
the principal national securities exchange on which such security is listed or
admitted to trading; or, if such security is not so listed or admitted to
trading, the last quoted sale price with respect to shares (or units) of such
security, or, if not so quoted, the average of the high bid and low asked prices
in the over-the-counter market with respect to shares (or units) of such
security, as reported by the National Association of Securities Dealers, Inc.
Automated Quotation System or such other similar system then in use; or, if on
any such date such security is not quoted by any such organization, the average
of the closing bid and asked prices with respect to shares (or units) of such
security, as furnished by a professional market maker making a market in such
security selected by the Board; or, if no such market maker is available, the
fair market value of shares (or units) of such security as of such day as
determined in good faith by the Board (which determination shall be described in
an Officers' Certificate filed with the Rights Agent).
(e) No adjustment in the Purchase Price shall be required unless adjustment
would require an increase or decrease of at least 1% in such price; provided,
--------
however, that any adjustments which by reason of this Section 11(e) are not
-------
required to be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this Section 11 shall be made to
the nearest cent or to the nearest ten-thousandth of a share (or similar unit)
of Class A Common Stock or other securities. Notwithstanding the first sentence
of this Section 11(e), any adjustment required by this Section 11 shall be made
no later than the earlier of (i) three years from the date of the transaction
which mandates the adjustment or (ii) the Expiration Date. 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 required by
this Section 11, as it in its discretion shall determine to be advisable in
order that any dividends, subdivision of shares, distribution of rights to
purchase shares of beneficial interest or other stock or securities, or
distribution of securities convertible into or exchangeable for stock hereafter
made by the Company to its stockholders shall not be taxable.
(f) In the event that at any time, as a result of an adjustment made in
respect of a Common Stock Event, the holder of any Right thereafter exercised
shall become entitled to receive any shares of capital stock of the Company
other than shares of Class A Common 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 such other
shares contained in Sections 11(a), (b), (c), (e), (g), (h), (i), (j), (k), (m)
and (p) hereof, and the provisions of Sections 7, 9, 10, 11(d), 13 and 14 hereof
with respect to the shares of Class A Common 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 shares of Class A Common
Stock purchasable from time to time
-21-
hereunder upon exercise of the Rights represented thereby, all subject to
further adjustment as provided herein.
(h) Unless the Company shall have exercised its election as provided in
Section 11(i) hereof, upon each adjustment of the Purchase Price as a result of
the calculations made pursuant to Sections 11(b) and 11(c) hereof, 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
shares of Class A Common Stock (calculated to the nearest ten-thousandth of a
share) obtained by (i) multiplying (x) the number of shares covered by a Right
immediately prior to this adjustment, by (y) the Purchase Price in effect
immediately prior to such adjustment of the Purchase Price, and (ii) dividing
the product so obtained by the Purchase Price in effect immediately after such
adjustment of the Purchase Price.
(i) Assuming that no other adjustment pursuant to this Section 11 has been
made, the Company may elect on or after the date of any adjustment of the
Purchase Price to adjust the number of Rights in substitution for any adjustment
in the number of shares of Class A Common Stock purchasable upon the exercise of
a Right. Each of the Rights outstanding after such adjustment of the number of
Rights shall be exercisable for the number of shares of Class A Common 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 ten-thousandth) obtained by
dividing the Purchase Price in effect immediately prior to such adjustment of
the Purchase Price by the Purchase Price in effect immediately after such
adjustment of the Purchase Price. The Company shall make a public announcement
of its election to adjust the number of Rights, indicating the record date for
the adjustment, and, if known at the time, the amount of the adjustment to be
made. This record date may be the date on which the Purchase Price is adjusted
or any day thereafter, but, if the Rights Certificates have been issued, shall
be at least 10 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 countersigned in the manner provided for herein (and may bear, at the option
of the Company, the adjusted Purchase Price) and shall be registered in the
names of the holders of record of Rights Certificates on the record date
specified in the public announcement.
(j) Irrespective of any adjustment or change in the Purchase Price or the
number of whole or fractional shares of Class A Common Stock issuable upon
exercise of such Rights,
-22-
the Rights Certificates theretofore and thereafter issued may continue to
express the Purchase Price per share and the number of shares which were
expressed in the initial Rights Certificates issued hereunder.
(k) Before taking any action that would cause an adjustment reducing the
Purchase Price below the then par value, if any, of the number of shares of
Class A Common 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 such number of fully
paid and nonassessable shares of Class A Common 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 until the occurrence of such event the
issuing to the holder of any Right exercised after such record date of the
number of shares of Class A Common Stock and other shares of beneficial interest
or other capital stock or securities of the Company, if any, issuable upon such
exercise over and above the number of shares of Class A Common Stock and other
shares of beneficial interest or 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 securities upon the occurrence of
the event requiring such adjustment.
(m) Anything in this Section 11 to the contrary notwithstanding, the
Company shall be entitled to make such reductions in the Purchase Price, in
addition to those adjustments expressly required by this Section 11, as and to
the extent that it, by means of a resolution of the Board acting in good faith,
shall determine to be advisable in order that any consolidation or subdivision
of the Class A Common Stock, issuance wholly for cash of any Class A Common
Stock at less than the Current Market Price thereof, issuance wholly for cash of
Class A Common Stock (or other securities which by their terms are convertible
into or exchangeable for Class A Common Stock), dividends payable in shares of
Class A Common Stock or other capital stock or shares of beneficial interest, or
issuance of rights, options, or warrants referred to hereinabove in this Section
11, hereafter made or declared by the Company to the holders of its Class A
Common Stock, shall not be taxable to such holders.
(n) The Company covenants and agrees that it shall not, at any time after
the Distribution Date, (i) consolidate with any other Person (other than a
Subsidiary of the Company in a transaction that complies with Section 11(o)
hereof), (ii) merge with or into any other 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, more than 25% of (A) the assets
(taken at net asset value as stated on the books of the Company and determined
on a consolidated basis in accordance with generally accepted accounting
principles consistently applied) or (B) the
-23-
earning power of the Company and its Subsidiaries (determined on a consolidated
basis in accordance with generally accepted accounting principles consistently
applied) to any other Person or Persons (other than the Company or any of its
Subsidiaries in one or more transactions each of which complies with Section
11(o) hereof), if (x) at the time of or immediately after such consolidation,
merger or sale, there are any rights, warrants or other instruments or
securities outstanding or agreements (whether or not in writing) in effect that
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 or sale, the stockholders of such other Person shall
have received a distribution of Rights previously owned by such Person or any of
its Affiliates.
(o) The Company covenants and agrees that, after the Distribution Date, it
will not, except as permitted by Section 23 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 date hereof and prior to the
Distribution Date (i) declare or pay a dividend on the outstanding shares of
Class A Common Stock and/or Class B Common Stock payable in shares of Class A
Common Stock and/or Class B Common Stock, or (ii) effect a subdivision,
combination or consolidation of the outstanding Class A Common Stock and/or
Class B Common Stock (by reclassification or otherwise than by payment of
dividends in shares of Class A Common Stock and/or Class B Common Stock) into a
greater or smaller number of shares, then in any such case, (x) the number of
shares of Class A Common Stock purchasable after such event upon proper exercise
of each Right shall be determined by multiplying the number of shares of Class A
Common Stock so purchasable 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; and (y) each share of Common
Stock outstanding immediately after such event shall have issued with respect to
it that number of Rights which each share of Common Stock outstanding
immediately prior to such event had issued with respect to it. The adjustments
provided for in this Section 11(p) shall be made successively whenever such a
dividend is declared or paid or such a subdivision, combination or consolidation
is effected.
Section 12. Certificate of Adjustments.
--------------------------
Whenever an adjustment is made as provided in Section 11 or 13 hereof, the
Company shall (a) promptly prepare an Officers' Certificate setting forth such
adjustment, including any adjustment in Purchase Price, the number of shares or
Other Consideration payable, and a brief statement of the facts accounting for
such adjustment, (b) promptly file with the Rights Agent and with the transfer
agent for the Class A Common Stock a copy of such Officers'
-24-
Certificate, and (c) mail a brief summary thereof to each registered holder of a
Rights Certificate in accordance with Section 26 hereof. The Rights Agent shall
be fully protected in relying on any such Officers' Certificate and on any
adjustment therein contained, and shall not be deemed to have knowledge of any
such adjustment unless and until it shall have received such an Officers'
Certificate.
Section 13. Consolidation, Merger or Sale or Transfer of Assets or Earning
--------------------------------------------------------------
Power.
-----
In the event that, following the Stock Acquisition Date, directly or
indirectly, (a) the Company shall consolidate with, or merge with and into, any
other Person (other than a Subsidiary of the Company in a transaction that
complies with Section 11(o) hereof) and the Company shall not be the continuing
or surviving Person of such consolidation or merger, (b) any Person (other than
a Subsidiary of the Company in a transaction that complies with Section 11(o)
hereof) shall consolidate with, or merge with and into, the Company, the Company
shall be the continuing or surviving Person of such consolidation or merger and,
in connection with such consolidation or merger, all or part of the Common Stock
of the Company shall be changed or otherwise transformed into other stock or
other securities of any other Person or the Company or cash or any other
property, or (c) 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, more than 25% of (A) the assets (taken at net
asset value as stated on the books of the Company and determined on a
consolidated basis in accordance with generally accepted accounting principles
consistently applied) or (B) the earning power of the Company and its
Subsidiaries (determined on a consolidated basis in accordance with generally
accepted accounting principles consistently applied) to any Person (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, from and after such event,
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 Purchase Price in effect at the time of such
exercise in accordance with the terms of this Agreement, such number of whole or
fractional shares of validly authorized and issued, fully paid, non-assessable,
and freely tradeable Common Stock of such other Person (or in the case of a
--
transaction or series of transactions described in clause (c) above, the Person
receiving the greatest amount of the assets or earning power of the Company, or
--
if the Common Stock of such other Person is not and has not been continuously
registered under Section 12 of the Exchange Act for the preceding 12-month
period and such Person is a direct or indirect Subsidiary of another Person,
that other Person, or if such other Person is a direct or indirect Subsidiary of
--
more than one other Person, the Common Stock of two or more of which are and
have been so registered, such other Person whose outstanding Common Stock has
the greatest aggregate value), free and clear of any liens, encumbrances, rights
of first refusal, or other adverse claims, as shall be equal to the result
obtained by (x) multiplying the Purchase Price in effect immediately prior to
the first occurrence of any Common Stock Event described in this Section 13 by
the number of shares of Class A Common Stock for which a Right is exercisable
immediately prior to such first occurrence (and without taking into account any
prior
-25-
adjustment made pursuant to 11(a)(ii)) and (y) dividing that product by 50% of
the Current Market Price per share (as defined in Section 11(d) hereof) of the
Common Stock of such other Person determined as of the date of consummation of
such consolidation, merger, sale, or transfer; (ii) the issuer of such Common
Stock shall thereafter be liable for, and shall assume, by virtue of such
consolidation, merger, sale, or transfer, all the obligations and duties of the
Company pursuant to this Agreement; (iii) the term "Company" shall thereafter be
deemed, for all purposes of this Agreement, to refer to such issuer, it being
specifically intended that the provisions of Section 11 hereof (other than
Section 11(a)(ii) hereof) shall apply only to such issuer following the first
occurrence of a Common Stock Event described in this Section 13; (iv) such
issuer shall take such steps (including, but not limited to, the reservation of
a sufficient number of shares of its Common Stock) in connection with such
consummation as may be necessary to assure that the provisions hereof shall
thereafter be applicable, as nearly as reasonably may be, in relation to the
whole or fractional shares of its 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 Common Stock Event
described in clauses (a), (b) or (c) of this Section 13. The Company shall not
consummate any such consolidation, merger, sale or transfer unless (i) such
issuer shall have a sufficient number of authorized shares of its Common Stock
which have not been issued or reserved for issuance as will permit the exercise
in full of the Rights in accordance with this Section 13, and (ii) prior thereto
the Company and such issuer shall have executed and delivered to the Rights
Agent a supplemental agreement so providing and further providing that as soon
as practicable after the date of any Common Stock Event described above in this
Section 13 such issuer shall (A) 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 (I) become effective as soon as practicable after
such filing and (II) remain effective (with a prospectus at all times meeting
the requirements of the Act) until the Expiration Date, and (B) will deliver to
holders of the Rights historical financial statements of such issuer and each of
its Affiliates which comply in all respects with the requirements for
registration on Form 10 under the Exchange Act. Furthermore, in case the Person
which is to be party to a transaction referred to in this Section 13 has any
provision in any of its authorized securities or in its charter or by-laws or
other agreement or instrument governing its affairs, which provision would have
the effect of causing such Person to issue, in connection with, or as a
consequence of, the consummation of a Common Stock Event described in clauses
(a), (b), or (c) of this Section 13, whole or fractional shares of Common Stock
of such Person at less than the then Current Market Price per share thereof (as
defined in Section 11(d) hereof), or to issue securities exercisable for, or
convertible into, Common Stock of such Person at less than such then Current
Market Price, then, in such event, the Company hereby agrees with each holder of
the Rights that it shall not consummate any such transaction unless prior
thereto the Company and such Person shall have executed and delivered to the
Rights Agent a supplemental agreement providing that such provision in question
shall have been canceled, waived, or amended so that it will have no effect in
connection with, or as a consequence of, the consummation of the proposed
transaction. The provisions of this Section 13 shall similarly apply to
successive mergers or consolidations or sales or other transfers. In
-26-
the event that a Common Stock Event described in this Section 13 shall occur at
any time after the occurrence of a Common Stock Event described in Section
11(a)(ii) hereof, the Rights which have not theretofore been exercised shall
thereafter become exercisable, except as provided in Section 7(e) hereof, in the
manner described in this Section 13.
Section 14. Fractional Rights and Fractional Shares.
---------------------------------------
(a) The Company shall not be required to issue fractions of Rights or to
distribute fractions of Rights, except prior to the Distribution Date as
provided in Section 11(i) hereof, or to distribute Rights Certificates which
evidence fractional Rights. In lieu of issuing such fractional Rights, at the
election of the Company, there shall be paid to the registered holders of the
Rights with regard to which such fractional Rights would otherwise be issuable,
an amount in cash equal to the same fraction of the current market value of a
whole Right. For the purposes of this Section 14(a), the current market value
of a whole Right shall be the Closing Price of the Rights for the Trading Day
immediately prior to the date on which such fractional Rights would have been
otherwise issuable.
(b) The Company shall not be required to issue fractions of shares of its
capital stock upon exercise of the Rights or to distribute certificates which
evidence fractional shares. In lieu of fractional shares, at the election of
the Company, there shall be paid to the registered holders of Rights at the time
such Rights are exercised as herein provided an amount in cash equal to the same
fraction of the current market value of a share of such capital stock. For
purposes of this Section 14(b), the current market value of a share of such
capital stock shall be the Closing Price of such capital stock for the Trading
Day immediately prior to the date of such exercise.
(c) The holder of a Right, by the acceptance of the Right, expressly waives
such holder's right to receive any fractional Rights or (except as provided in
Section 14(b) hereof) any fractional share upon exercise of a Right.
Section 15. Rights of Action.
----------------
Excepting the rights of action given the Rights Agent under Section 18
hereof and except as set forth in Section 20(l) hereof, all rights of action in
respect of this Agreement are vested in the registered holder of each Right; and
any registered holder of any Right, without the consent of the Rights Agent or
of the holder of any other Right, may, in its own behalf and for its 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 registered
holder's right to exercise the rights evidenced by such Right in the manner
provided in such Rights Certificate and in this Agreement, and the Company
hereby agrees to reimburse such registered holder for all expenses (including
reasonable attorneys' fees) incurred by such registered holder in connection
therewith. Without limiting the foregoing or any remedies available to the
holders of Rights, it is specifically acknowledged that the holders of Rights
-27-
would not have an adequate remedy at law for any breach of the obligations
hereunder, and shall be entitled to injunctive relief against actual or
threatened violations of the obligations hereunder of any Person subject to this
Agreement.
Section 16. Agreement of Rights Holders.
---------------------------
Every holder of a Right by accepting the same consents and agrees with the
Company and the Rights Agent and with every other holder of a Right that:
(a) prior to the Distribution Date, the Rights will be transferable only in
connection with the transfer of Common Stock;
(b) from and after the Distribution Date, the Rights Certificates are
transferable only on the registry books of the Rights Agent if surrendered at
the principal office of the Rights Agent, duly endorsed or accompanied by a
proper instrument of transfer with a form of assignment and certificate set
forth on the reverse side thereof duly executed, accompanied by a signature
guarantee and such other documentation as the Rights Agent may reasonably
request;
(c) subject to Sections 6(a) and 7(f) hereof, the Company and the Rights
Agent may deem and treat the person in whose name 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 writing on the Rights Certificate
or, prior to the Distribution Date, the associated Common Stock certificate,
made by anyone other than the Company or the Rights Agent) for all purposes
whatsoever, and neither the Company nor the Rights Agent shall be affected by
any notice to the contrary; and
(d) notwithstanding anything in this Agreement to the contrary, neither the
Company nor the Rights Agent shall have any liability to any holder of a Right
or other Person as a result of its inability to perform any of its obligations
under this Agreement by reason of any preliminary or permanent injunction or
other order, decree or ruling issued by a court of competent jurisdiction or by
a governmental, regulatory or administrative agency or commission, or any
statute, rule, regulation or executive order promulgated or enacted by any
governmental authority prohibiting or otherwise restraining performance of such
obligation; provided, however, the Company agrees to 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 otherwise be deemed for any purpose the holder of any
securities of the Company which may 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
-28-
of any Rights Certificate, as such, any of the rights of a stockholder of the
Company or any right to vote in the election of directors or upon any matter
submitted to stockholders at any meeting thereof, or to give or withhold consent
to any action by the Company, or to receive notice of meetings or other actions
affecting stockholders (except as provided in Section 25 hereof), or to receive
dividends or preemptive rights, or otherwise, until the time specified in
Section 10 hereof.
Section 18. Concerning the Rights Agent.
---------------------------
The Company agrees to pay to the Rights Agent such reasonable compensation
as shall be agreed to in writing between the Company and the Rights Agent for
all services rendered by it hereunder and, from time to time, on demand of the
Rights Agent, its reasonable expenses and counsel fees and disbursements and
other disbursements incurred in the administration and execution of this
Agreement and the exercise and performance of its duties hereunder. The Company
also agrees to indemnify the Rights Agent for, and to hold it harmless against,
any and all loss, liability, damages, claims or expense, incurred without gross
negligence, bad faith or willful misconduct on the part of the Rights Agent, for
anything done or omitted by the Rights Agent in connection with the acceptance
and administration of this Agreement, including the costs and expenses
(including reasonable attorneys' fees and expenses) of defending against any
claim of liability for any of the foregoing.
The Rights Agent shall be protected and shall incur no liability for or in
respect of any action taken, suffered, or omitted by it in connection with its
administration of this Agreement in reliance upon any Rights Certificate or
certificate for any shares of Class A Common Stock or for other securities of
the Company, instrument of assignment or transfer, power of attorney,
endorsement, affidavit, letter, notice, instruction, direction, consent,
certificate, statement, or other paper or document believed by it to be genuine
and to be signed and executed by the proper Person or Persons, and verified or
acknowledged as required by this Agreement.
Section 19. Merger or Consolidation or Change of Name of Rights Agent.
---------------------------------------------------------
Any corporation into which the Rights Agent may be merged or with which it
may be consolidated, or any corporation resulting from any merger or
consolidation to which the Rights Agent shall be a party, or any corporation
succeeding to the stockholder services business of the Rights Agent, shall be
the successor to the Rights Agent under this Agreement without the execution or
filing of any paper or any further act on the part of any of the parties hereto;
provided, however, that such corporation would be eligible for appointment as a
-------- -------
successor Rights Agent under the provisions of Section 21 hereof. In case at
the time such successor Rights Agent shall succeed to the agency created by this
Agreement and any of the Rights Certificates shall have been countersigned but
not delivered, any such successor Rights Agent may adopt the countersignature of
the predecessor Rights Agent and deliver such Rights Certificates so
countersigned; and in case at that time any of the Rights Certificates shall not
-29-
have been countersigned, any successor Rights Agent may countersign such Rights
Certificates either in the name of the predecessor Rights Agent or in the name
of the successor Rights Agent; and in all such cases such Rights Certificates
shall have the full force provided in the Rights Certificates and in this
Agreement.
In case at any time the name of the Rights Agent shall be changed and at
such time any of the Rights Certificates shall have been countersigned but not
delivered, the Rights Agent may adopt the countersignature under its prior name
and deliver such Rights Certificates so countersigned; and in case at that time
any of the Rights Certificates shall not have been countersigned, the Rights
Agent may countersign such Rights Certificates either in its prior name or in
its changed name; and in all such cases such Rights Certificates shall have the
full force provided in the Rights Certificates and in this Agreement.
Section 20. Duties of Rights Agent.
----------------------
The Rights Agent undertakes only the duties and obligations expressly
imposed upon it by this Agreement and no implied duties or obligations shall be
read into this Agreement against the Rights Agent. The Rights Agent shall
perform its duties and obligations hereunder upon the following terms and
conditions:
(a) The Rights Agent may consult with legal counsel of its selection (who
may be legal counsel to the Company), and the opinion of such counsel shall be
full and complete authorization and protection to the Rights Agent as to any
action taken or omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Agreement the
Rights Agent shall deem it necessary or desirable that any fact or matter
(including, without limitation, the identity of any Acquiring Person) be proved
or established by the Company prior to taking or suffering any action hereunder,
such fact or matter (unless other evidence in respect thereof be herein
specifically prescribed) may be deemed to be conclusively proved and established
by a certificate (an "Officers' Certificate") signed by a person believed by the
Rights Agent to be the Chairman of the Board, the President or any Vice
President and by the Treasurer or any Assistant Treasurer or the Clerk or any
Assistant Clerk of the Company and delivered to the Rights Agent; and such
Officers' Certificate shall be full authorization to the Rights Agent for any
action taken or suffered in good faith by it under the provisions of this
Agreement in reliance upon such Officers' Certificate.
(c) The Rights Agent shall be liable hereunder only for its own gross
negligence, bad faith, or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of the
statements of fact or recitals contained in this Agreement or in the Rights
Certificates (except its
-30-
countersignature on such Rights Certificate) or be required to verify the same,
but all such statements and recitals are and shall be deemed to have been made
by the Company only.
(e) The Rights Agent shall not be under any responsibility in respect of
the validity of this Agreement or the execution and delivery hereof (except the
due execution hereof by the Rights Agent) or in respect of the validity or
execution of any Rights Certificate (except its countersignature thereof); nor
shall it be responsible for any breach by the Company of any covenant or
condition contained in this Agreement or in any Rights Certificate; nor shall it
be responsible for any adjustment required under the provisions of Sections 11
or 13 hereof or be responsible for the manner, method or amount of any such
adjustment or procedures or the ascertaining of the existence of facts that
would require any such adjustment or procedure (except with respect to the
exercise of Rights evidenced by Rights Certificates after receipt of a
certificate delivered pursuant to Section 12 hereof, describing any such
adjustment or procedures); nor shall it by any act hereunder be deemed to make
any representation or warranty as to the authorization or reservation of any
Class A Common Stock or other securities to be issued pursuant to this Agreement
or any Rights Certificate or as to whether any shares of Class A Common Stock,
or any shares or similar units of other securities, will, when issued, be
validly authorized and issued, fully paid, and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge and
deliver, or cause to be performed, executed, acknowledged and delivered, all
such further and other acts, instruments and assurances as may reasonably be
required by the Rights Agent for the carrying out or performing by the Rights
Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from any
person believed by the Rights Agent to be the Chairman of the Board, the
President or any Vice President or the Clerk or any Assistant Clerk or the
Treasurer or any Assistant Treasurer of the Company, and to apply to such
officers for advice or instructions in connection with its duties, and it shall
not be liable for any action taken or suffered to be taken by it in good faith
in accordance with instructions of any such officer. Any application by the
Rights Agent for written instructions from the Company may, at the option of the
Rights Agent, set forth in writing any action proposed to be taken or omitted by
the Rights Agent with respect to its duties or obligations under this Agreement
and the date on and/or after which such action shall be taken or omitted and the
Rights Agent shall not be liable for any action taken or omitted in accordance
with a proposal included in any such application on or after the date specified
therein (which date shall not be less than three Business Days after the date
any such officer actually receives such application, unless any such officer
shall have consented in writing to an earlier date) unless, prior to taking or
omitting any such action, the Rights Agent has received written instructions
from the Company in response to such application specifying the action to be
taken or omitted.
(h) The Rights Agent and any stockholder, director, officer, or employee
of the Rights Agent may buy, sell, or deal in any of the Rights or other
securities of the Company or
-31-
become pecuniarily interested in any transaction in which the Company may be
interested, or contract with or lend money to the Company or otherwise act as
fully and freely as though it were not Rights Agent under this Agreement.
Nothing herein shall preclude the Rights Agent from acting in any other capacity
for the Company or for any other entity.
(i) The Rights Agent may execute and exercise any of the rights or powers
hereby vested in it or perform any duty hereunder either itself or by or through
its attorneys or agents, and the Rights Agent shall not be answerable or
accountable for any act, default, neglect or misconduct of any such attorneys or
agents or for any loss to the Company resulting from any such act, default,
neglect or misconduct; provided, however, that reasonable care was exercised in
-------- -------
the selection and continued employment thereof.
(j) No provision of this Agreement shall require the Rights Agent to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of its rights if
there shall be reasonable grounds for believing that repayment of such funds or
adequate indemnification against such risk or liability is not reasonably
assured to it.
(k) If, with respect to any Rights Certificate surrendered to the Rights
Agent for exercise or transfer, the certification appearing on the reverse side
thereof following the form of election to purchase 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.
(l) The provisions of this Section 20 are solely for the benefit of the
Rights Agent or the Company and any failure or omission under this Section 20
shall not affect the rights of the Company under this Agreement and neither the
Rights Agent nor the Company shall have any liability to any holder of Rights or
other Person on account of such failure or omission.
Section 21. Change of Rights Agent.
----------------------
The Rights Agent or any successor Rights Agent may resign and be discharged
from its duties under this Agreement upon 30 days' notice in writing mailed to
the Company and to the transfer agent of the Class A Common Stock by registered
or certified mail, and, subsequent to the Distribution Date, to the holders of
the Rights Certificates by first-class mail. The Company may remove the Rights
Agent or any successor Rights Agent upon 30 days' notice in writing, mailed to
the Rights Agent, to the transfer agent of the Class A Common Stock by
registered or certified mail, and, subsequent to the Distribution Date, to the
holders of the Rights Certificates by first-class mail. If the Rights Agent
shall resign or be removed or shall otherwise become incapable of acting, the
Company shall appoint a successor to the Rights Agent. If the Company shall
fail to make such appointment within a period of 30 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
-32-
Certificate (who shall, with such notice, submit such holder's Rights
Certificate for inspection by the Company), then the registered holder of any
Rights Certificate may apply to any court of competent jurisdiction for the
appointment of a new Rights Agent. Any successor Rights Agent, whether appointed
by the Company or by such a court, shall be a corporation organized and doing
business under the laws of the United States, the State of New York or The
Commonwealth of Massachusetts (or of any other State of the United States so
long as such corporation is authorized to do business as a banking institution
in the State of New York or The Commonwealth of Massachusetts), in good
standing, having an office designated for such purpose in the State of New York
or The Commonwealth of Massachusetts, which is authorized under such laws to
exercise corporate trust and/or stock transfer powers and is subject to
supervision or examination by federal or state authority and which has at the
time of its appointment as Rights Agent a combined capital and surplus of at
least $50,000,000. After appointment, the successor Rights Agent shall be vested
with the same powers, rights, duties and responsibilities as if it had been
originally named as Rights Agent without further act or deed; but the
predecessor Rights Agent shall deliver and transfer to the successor Rights
Agent any property at the time held by it hereunder, and execute and deliver any
further assurance, conveyance, act or deed necessary for the purpose; and,
except as the context herein otherwise requires, such successor Rights Agent
shall be deemed to be the "Rights Agent" for all purposes of this Agreement. Not
later than the effective date of any such appointment the Company shall file
notice thereof in writing with the predecessor Rights Agent and the transfer
agent of the Class A Common 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 the Board to reflect any
adjustment or change in the Purchase Price per share and the number or kind or
class of shares of stock or other securities or property purchasable under the
Rights Certificates made in accordance with the provisions of this Agreement.
In addition, in connection with the issuance or sale by the Company of shares of
Common Stock following the Distribution Date and prior to the redemption or
expiration of the Rights, the Company (a) shall, with respect to shares of
Common Stock so issued or sold pursuant to the exercise of stock options or
under any employee plan or arrangement, or upon the exercise, conversion or
exchange of securities hereinafter issued by the Company, and (b) may, in any
other case, if deemed necessary or appropriate by the Board, issue Rights
Certificates representing the appropriate number of Rights in connection with
such issuance or sale; provided, however, that (i) no such Rights evidenced by a
-------- -------
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
-33-
Company or the Person to whom such Rights 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.
--------------------------
The Board, by majority vote, may, at its option, at any time prior to the
earlier of (i) the Distribution Date or (ii) the Close of Business on the
Expiration Date, redeem all (but not less than all) of the then outstanding
Rights at a redemption price of $.01 per Right, appropriately adjusted to
reflect any stock split, stock dividend, combination of shares, or similar
transaction occurring after the date hereof (such redemption price being
hereinafter referred to as the "Redemption Price"). The Company may, at its
option, pay the Redemption Price in cash, shares of Common Stock (based on the
Current Market Price of the Common Stock at the time of redemption) or any other
form of consideration deemed appropriate by the majority of the Board).
Immediately upon the taking of such action ordering the redemption of all of the
Rights, evidence of which shall have been filed with the Rights Agent, and
without any further action and without any notice, the right to exercise the
Rights so redeemed will terminate and the only right thereafter of the holders
of such Rights so redeemed shall be to receive the Redemption Price (without the
payment of any interest thereon). Within 10 days after such action ordering the
redemption of all of the Rights, the Company shall give notice of such
redemption to the holders of the then outstanding Rights by mailing such notice
to all such holders at their last addresses as they appear upon the registry
books of the Rights Agent or, prior to the Distribution Date, on the registry
books of the transfer agent for the 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 shall state the method by
which the payment of the Redemption Price shall be made.
Section 24. Exchange.
--------
(a) The Board, by majority vote, may, at its option, at any time after any
Person becomes an Acquiring Person, exchange all or part of the then outstanding
and exercisable Rights for shares of Class A Common Stock at an exchange ratio
of one share of Class A Common Stock per Right, appropriately adjusted to
reflect any stock split, stock dividend or similar transaction occurring after
the date hereof (such exchange ratio, as the same may be so adjusted from time
to time, being hereinafter referred to as the "Exchange Ratio"). Notwithstanding
the foregoing, the Board shall not be empowered to effect such exchange at any
time after any Person (other than (i) the Company, (ii) any Subsidiary of the
Company, (iii) any employee benefit plan of the Company or of any such
Subsidiary, or (iv) any entity holding Common Stock for or pursuant to the terms
of any such plan), together with all Affiliates of such Person, becomes the
Beneficial Owner (whether such Beneficial Ownership is of shares of Class A
Common Stock, shares of Class B Common Stock or shares of Class A Common Stock
and Class B Common Stock)of 50% or more of the shares of Class A Common Stock
and Class B Common Stock (taken together as a single class, treating each share
of Class
-34-
B Common Stock outstanding as one share of Class A Common Stock outstanding for
the purposes of calculating such Beneficial Ownership) then outstanding.
(b) Immediately upon the action of the Board ordering the exchange of any
Rights pursuant to subsection (a) of this Section 24 and without any further
action and without any notice, the right to exercise such Rights shall terminate
and the only right thereafter of a holder of such Rights shall be to receive
that number of shares of Class A Common Stock equal to the number of such Rights
held by such holder multiplied by the Exchange Ratio. The Company shall
promptly give public notice of any such exchange; provided, however, that the
-------- -------
failure to give, or any defect in, such notice shall not affect the validity of
such exchange. The Company promptly shall mail a notice of any such exchange to
all of the holders of such Rights at their last addresses as they appear upon
the registry books of the Rights Agent. Any notice which is mailed in the
manner herein provided shall be deemed given, whether or not the holder receives
the notice. Each such notice of exchange shall state the method by which the
exchange of the Class A Common Stock for Rights shall be effected and, in the
event of any partial exchange, the number of Rights which will be exchanged.
Any partial exchange shall be effected pro rata based on the number of Rights
(other than Rights which have become void pursuant to the provisions of Section
7(e) hereof) held by each holder of Rights.
(c) In the event that there shall not be sufficient shares of Class A
Common Stock issued but not outstanding or authorized but unissued to permit
any exchange of Rights as contemplated in accordance with this Section 24, the
Company shall take all such action as may be necessary to authorize additional
Class A Common Stock for issuance upon exchange of the Rights.
(d) The Company shall not be required to issue fractions of shares of
Class A Common Stock or to distribute certificates which evidence fractional
shares of Class A Common Stock. In lieu of such fractional shares of Class A
Common Stock, the Company shall pay to each registered holder of a Rights
Certificate with regard to which a fractional share of Class A 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 Class A Common Stock. For the purposes
of this paragraph (d), the current market value of a whole share of Class A
Common Stock shall be the Closing Price of a share of Class A Common Stock (as
determined pursuant to Section 11(d) hereof) for the Trading Day immediately
prior to the date of exchange pursuant to this Section 24.
Section 25. Notice of Proposed Actions.
--------------------------
In case the Company shall after the Distribution Date propose (a) to pay
any dividend payable in stock of any class to the holders of its Class A Common
Stock or to make any other distribution to the holders of its Class A Common
Stock (other than a cash dividend out of earnings or the retained earnings of
the Company), or (b) to offer to the holders of its Class A Common Stock rights
or warrants to subscribe for or to purchase any additional shares of
-35-
Class A Common Stock, Class B Common Stock or shares of stock of any other class
or any other securities, rights, or options, or (c) to effect any
reclassification of the Class A Common Stock (other than a reclassification
involving only the subdivision of outstanding shares of Class A Common Stock),
or (d) to effect any consolidation or merger into or with, or to effect any sale
or other transfer (or to permit one or more of its Subsidiaries to effect any
sale or other transfer), in one transaction or a series of related transactions,
of more than 25% of (i) the assets of the Company and its Subsidiaries (taken at
net asset value as stated on the books of the Company and determined on a
consolidated basis in accordance with generally accepted accounting principles
consistently applied) or (ii) the earning power of the Company and its
Subsidiaries (determined on a consolidated basis in accordance with generally
accepted accounting principles consistently applied) to any other Person or
Persons, or (e) to effect the liquidation, dissolution or winding up of the
Company, then, in each such case, the Company shall give to the Rights Agent and
each holder of a Right, in accordance with Section 26 hereof, a notice of such
proposed action, which shall specify the record date for the purposes of such
stock dividend, distribution of rights or warrants, or the date on which such
reclassification, consolidation, merger, sale, transfer, liquidation,
dissolution, or winding up is to take place and the date of participation
therein by the holders of Class A Common 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
(a) or (b) above at least twenty days prior to the record date for determining
holders of the Class A Common Stock for purposes of such action, and in the case
of any such other action, at least twenty days prior to the date of the taking
of such proposed action or the date of participation therein by the holders of
Class A Common Stock whichever shall be the earlier. The failure to give notice
required by this Section 25 or any defect therein shall not affect the legality
or validity of the action taken by the Company or the vote upon any such action.
In case any Common Stock Event described in Section 11(a)(ii) hereof shall
occur, then, in any such case, the Company shall as soon as practicable
thereafter give to the Rights Agent and each holder of a Rights Certificate, in
accordance with Section 26 hereof, a notice of the occurrence of such Common
Stock Event, which shall specify such event and the consequences of the event to
holders of Rights under Section 11(a)(ii) hereof.
Notwithstanding anything in this Agreement to the contrary, prior to the
Distribution Date a filing by the Company with the Securities and Exchange
Commission shall constitute sufficient notice to the holders of securities of
the Company, including the Rights, for purposes of this Agreement and no other
notice need be given.
Section 26. Notices.
-------
Notices or demands authorized by this Agreement to be given or made by the
Rights Agent or by the holder of any Rights Certificate to 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:
-36-
The X.X. Xxxxxxxx Company
000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxxxxxxx 00000
Attention: Treasurer
Copy to: Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
Subject to the provisions of Sections 19 and 21 hereof, any notice or
demand authorized by this Agreement to be given or made by the Company or by the
holder of any Rights Certificate to or on the Rights Agent shall be sufficiently
given or made if sent by first-class mail, postage prepaid, addressed (until
another address is filed in writing with the Company) as follows:
Fleet National Bank
c/o EquiServe Limited Partnership
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Client Administration
(The X.X. Xxxxxxxx Company Rights Agreement)
Notices or demands authorized by this Agreement to be given or made by the
Company or the Rights Agent to the holder of any Rights Certificate shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed to such holder at the address of such holder as shown on the registry
books of the Company.
Section 27. Supplements and Amendments.
--------------------------
Prior to the Distribution Date, the Board, upon the vote of a majority of
the Board, may from time to time supplement or amend this Agreement without the
approval of any holders of the Rights. From and after the Distribution Date,
the Board may, upon the vote of a majority of the Board, from time to time amend
this Agreement without the approval of any holders of the Rights in order (i) to
cure any ambiguity, (ii) to correct or supplement any provision contained herein
which may be defective or inconsistent with any other provisions herein, (iii)
to change any time period governing redemption of the Rights or any other time
period or (iv) to make any other provisions in regard to matters or questions
arising hereunder which the Board, upon the vote of a majority of the Board, may
deem necessary or desirable and which shall not adversely affect the interests
of the holders of the Rights (other than any Acquiring Person or Disqualified
Transferee or any Affiliate of an Acquiring Person or Disqualified Transferee).
The Rights Agent shall join with the Company in the execution and
-37-
delivery of any such supplement or amendment, unless such supplement or
amendment affects any of the rights, duties, or obligations of the Rights Agent
hereunder, in which case the Rights Agent may, but shall not be required to,
join in such execution and delivery.
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; etc.
--------------------------------------------
The Board shall have the exclusive power and authority to administer this
Agreement and to exercise all rights and powers specifically granted to the
Board, or to the Company, or as may be necessary or advisable in the
administration of this Agreement, including, without limitation, the right and
power to (i) interpret the provisions of this Agreement and (ii) make all
determinations (including a determination to redeem or not redeem the Rights or
to amend this Agreement) deemed necessary or advisable for the administration of
this Agreement. All such actions, calculations, interpretations and
determinations (including, for purposes of clause (y) below all omissions with
respect to the foregoing) which are done or made by the Board in good faith and
with the concurrence of a majority of the Board shall (x) be final, conclusive
and binding on the Company, the Rights Agent, the holders of the Rights and all
other parties and (y) not subject any Director to any liability to the holders
of the Rights.
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, the associated shares of
Common Stock) any legal or equitable right, remedy, or claim under this
Agreement or the Rights; but this Agreement shall be for the sole and exclusive
benefit of the Company, the Rights Agent, and the registered holders of the
Rights (and, prior to the Distribution Date, the associated Common Stock).
Section 31. Severability.
------------
The invalidity or unenforceability of any term or provision hereof shall
not affect the validity or enforceability of any other term or provision hereof.
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 determines in its
-38-
good faith judgment that severing the invalid language from this Agreement would
adversely affect the purpose or effect of this Agreement, the right of
redemption set forth in Section 23 hereof shall be reinstated and shall not
expire until the Close of Business on the tenth day following the date of such
determination by the Board.
Section 32. Governing Law.
-------------
This Agreement and each Rights Certificate issued hereunder shall be deemed
to be a contract made under the laws of The Commonwealth of Massachusetts and
for all purposes shall be governed by and construed in accordance with the laws
of said Commonwealth applicable to contracts to be made and performed entirely
within said Commonwealth.
Section 33. Counterparts.
------------
This Agreement may be executed in any number of counterparts and each of
such counterparts shall for all purposes be deemed to be an original, and all
such counterparts shall together constitute but one and the same instrument.
Section 34. Descriptive Headings.
--------------------
Descriptive headings of the several Sections of this Agreement are inserted
for convenience only and shall not control or affect the meaning or construction
of any of the provisions hereof.
-39-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and set their respective hands and seals, all as of the day and
year first above written.
THE X.X. XXXXXXXX COMPANY
By: /s/ Xxxxx Xxxxxxxxxx Xx.
----------------------------------------
Title: Treasurer and Chief Financial Officer
Attest:
By: /s/ Xxxxxx X. Xxxxxx
----------------------
Title: Clerk
FLEET NATIONAL BANK
Attest: By: /s/ Xxxxx X. Xxxxxx, III
----------------------------
Title: Administration Manager
By: /s/ Xxxxxxxx X. XxXxxx
----------------------
Title: Account Manager
-40-
EXHIBIT A
---------
FORM OF RIGHTS CERTIFICATE
Certificate No. R- _______ Rights
NOT EXERCISABLE AFTER May 23, 2010 OR EARLIER IF ORDER OF REDEMPTION IS
GIVEN. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY,
AT $.01 PER RIGHT ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER
CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON OR
AN AFFILIATE (WHICH INCLUDES AFFILIATES AND ASSOCIATES) OF AN ACQUIRING
PERSON (AS EACH SUCH TERM IS DEFINED IN THE RIGHTS AGREEMENT) AND ANY
SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID. THE RIGHTS
SHALL NOT BE EXERCISABLE, AND SHALL BE VOID SO LONG AS HELD, BY A HOLDER IN
ANY JURISDICTION WHERE THE REQUISITE QUALIFICATION TO THE ISSUANCE TO SUCH
HOLDER, OR THE EXERCISE BY SUCH HOLDER, OF THE RIGHTS IN SUCH JURISDICTION
SHALL NOT HAVE BEEN OBTAINED OR BE OBTAINABLE. [THE RIGHTS REPRESENTED BY
THIS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR
BECAME AN ACQUIRING PERSON OR AN AFFILIATE (WHICH INCLUDES AFFILIATES AND
ASSOCIATES) OF AN ACQUIRING PERSON (AS EACH SUCH TERM IS DEFINED IN THE
RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHTS CERTIFICATE AND THE RIGHTS
REPRESENTED HEREBY MAY BECOME NULL AND VOID IN THE CIRCUMSTANCES SPECIFIED
IN SECTION 7(e) OF THE RIGHTS AGREEMENT. THE RIGHTS AGENT WILL MAIL TO THE
REGISTERED HOLDER OF THIS CERTIFICATE A COPY OF THE RIGHTS AGREEMENT, AS IN
EFFECT ON THE DATE OF SUCH MAILING, WITHOUT CHARGE UPON WRITTEN
REQUEST.]*
Rights Certificate
THE X.X. XXXXXXXX COMPANY
This certifies that , or registered
assigns, is the registered owner of the number of Rights set forth above, each
of which entitles the owner thereof, subject to the terms, provisions, and
conditions of the Rights Agreement dated as of June 6, 1990, as amended and
restated as of May 23, 2000 (the "Rights
____________________
* The portion of the legend in brackets shall be inserted only if applicable.
A-1
Agreement") between The X.X. Xxxxxxxx Company (the "Company"), and Fleet
National Bank (f/k/a BankBoston, N.A., f/k/a The first National Bank of Boston
(the "Rights Agent"), to purchase from the Company at any time after the
Distribution Date (as such term is defined in the Rights Agreement) and prior to
5:00 p.m. (Boston, Massachusetts time) on May 23, 2010 (the "Expiration Date")
at the office of the Rights Agent designated for such purpose, or its successors
as Rights Agent, one share of Class A Common Stock, with a par value of $1.00
per share ("Class A Common Stock"), of the Company per each Right represented
hereby, at a purchase price of $92.00 per share (the "Purchase Price") upon
presentation and surrender of this Rights Certificate with the Form of Election
to Purchase set forth on the reverse side hereof and the certificate contained
therein duly completed and executed, accompanied by a signature guarantee and
such other documentation as the Rights Agent may reasonably request. 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 May 23, 2000,
based on the shares of Common Stock of the Company as constituted at such date.
As more fully set forth in the Rights Agreement, upon the occurrence of a
Common Stock 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 of an Acquiring Person (as each such term is
defined in the Rights Agreement) or (ii) a Disqualified Transferee (as defined
in the Rights Agreement), such Rights shall automatically become null and void
and no holder hereof shall have any right with respect to such Rights from and
after the occurrence of such Common Stock Event.
The Rights evidenced by this Rights Certificate shall not be exercisable,
and shall be void so long as held, by a holder in any jurisdiction where the
requisite qualification to the issuance to such holder, or the exercise by such
holder, of the Rights in such jurisdiction shall not have been obtained or be
obtainable.
As provided in the Rights Agreement, the Purchase Price and the number and
type of 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.
In the circumstances described in Section 13 of the Rights Agreement, the
securities issuable upon the exercise of the Rights evidenced hereby shall be
the common stock or similar equity securities or equity interests of an entity
other than the Company.
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
A-2
the specific circumstances set forth in the Rights Agreement. Copies of the
Rights Agreement are on file at the office of the Rights Agent designated for
such purpose and may be obtained by the holder of any Rights 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,
accompanied by a signature guarantee and such other documentation as the Rights
Agent may reasonably request, 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 shares of Class A Common Stock (or
other consideration, as the case may be) as the Rights evidenced by the Rights
Certificate or Rights Certificates surrendered shall have entitled such holder
to purchase. If this Rights Certificate shall be exercised in part, the holder
shall be entitled to receive, upon surrender hereof, another Rights Certificate
or Rights Certificates for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights evidenced by
this Rights Certificate may be redeemed by the Company by a majority vote of
the Board (as defined in the Rights Agreement) at any time prior to the
Expiration Date, at a redemption price of $.01 per Right (which amount is
subject to adjustment as provided in the Rights Agreement). In addition, in
certain circumstances, the Rights may be exchanged, in whole or in part, for
shares of Class A Common Stock. Immediately upon action of the Board ordering
the exchange of any Rights and without further action and without any notice,
the right to exercise such Rights will terminate and the only right thereafter
of a holder of such Rights will be to receive that number of shares of Class A
Common Stock issuable upon exchange.
The Company is not obligated to issue whole or fractional shares of Class A
Common Stock (or other securities) upon the exercise of any Right or Rights
evidenced hereby, but in lieu thereof a cash payment may be made at the election
of the Company, as provided in the Rights Agreement.
No holder of this Rights Certificate, as such, shall be entitled to vote or
receive dividends or be deemed for any purpose the holder of Class A Common
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 action by the Company, 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.
A-3
WITNESS the facsimile signature of the proper officers and the seal of the
Company. Dated as of _______ __, ____.
THE X.X. XXXXXXXX COMPANY
By______________________________
Title:
ATTEST:
____________________
Title:
Countersigned:
____________________
FLEET NATIONAL BANK
By________________________
Authorized Signatory
Date of Countersignature:
A-4
[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
------------------
(To be executed by the registered holder if such
holder desires to transfer the Rights Certificate)
FOR VALUE RECEIVED ________________________ hereby sells, assigns and
transfers unto ______________________
______________________________________________________________________
(Please print name and address of transferee)
______________________________________________________________________ whose
social security or tax identification number is: ______________ the Rights
evidenced by this Rights Certificate, together with all right, title and
interest herein, and does hereby irrevocably constitute and appoint
____________________ Attorney, to transfer the within Rights Certificate on the
books of the within-named Company, with full power of substitution.
Dated: _________________________, ____.
_________________________
Signature
Signature Guaranteed:*
______________________________
* Signature must be guaranteed by an "Eligible Guarantor Institution" (with
membership in an approved signature guarantees medallion program) pursuant to
Rule 17Ad-15 of the Securities Exchange Act of 1934.
A-5
Certificate
-----------
The undersigned hereby certifies by checking the appropriate boxes that:
(1) the Rights evidenced by this Rights Certificate [_] are [_] are not
being sold, assigned and transferred by or on behalf of a Person who is or was
an Acquiring Person or an Affiliate of an Acquiring Person (as each such term is
defined in the Rights Agreement); and
(2) after due inquiry and to the best knowledge of the undersigned, it [_]
did [_] did not acquire the Rights evidenced by this Rights Certificate after
the occurrence of a Common Stock Event from any Person who is, was or
subsequently became an Acquiring Person or an Affiliate of an Acquiring Person.
Dated:____________________ ______________________________
Signature
Signature Guaranteed:*
____________________________
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.
A-6
FORM OF ELECTION TO PURCHASE
----------------------------
(To be executed if holder desires to exercise the Rights Certificate)
To The X.X. Xxxxxxxx Company
The undersigned hereby irrevocably elects to exercise _________________
Rights represented by this Rights Certificate to purchase the number of shares
of Class A Common Stock (or other securities) issuable upon the exercise of such
Rights and requests that certificates for such shares be issued in the name of:
Please insert social security
or other 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 remaining of such Rights
shall be registered in the name of and delivered to:
Please insert social security
or other identifying number _________________________________
_________________________________________________________________
(Please print name and address)
Dated: _______________________, ____
_________________________
Signature
(Signature must conform in all respects
to name of holder as specified on the
face of this Rights Certificate)
Signature Guaranteed:**
________________________________
** Signature must be guaranteed by an "Eligible Guarantor Institution" (with
membership in an approved signature guarantees medallion program) pursuant to
Rule 17Ad-15 of the Securities Exchange Act of 1934.
A-7
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 of any such Acquiring Person (as each such term is defined in the
Rights Agreement); and
(2) after due inquiry and to the best knowledge of the undersigned, it [_]
did [_] did not acquire the Rights evidenced by this Rights Certificate after
the occurrence of a Common Stock Event (as such term is defined in the Rights
Agreement) from any Person who is, was, or subsequently became an Acquiring
Person or an Affiliate of an Acquiring Person.
Dated: _________________, ____ _________________________
Signature
Signature Guaranteed:***
___________________________
___________________________
*** Signature must be guaranteed by an "Eligible Guarantor Institution" (with
membership in an approved signature guarantees medallion program) pursuant to
Rule 17Ad-15 of the Securities Exchange Act of 1934.
A-8
