Exhibit 10.01
NEW XXXXXX INTERNATIONAL, INC.
and
FIRST CHICAGO TRUST COMPANY OF NEW YORK,
as Rights Agent
Rights Agreement
Dated as of April 24, 1997
____________________________________________________________
TABLE OF CONTENTS
Page
Section 1. Definitions.............................. 2
Section 2. Appointment of Rights Agent.............. 8
Section 3. Issue of Right Certificates.............. 9
Section 4. Form of Right Certificates............... 11
Section 5. Countersignature and Registration........ 12
Section 6. Transfer, Split Up, Combination and
Exchange of Right Certificates;
Mutilated, Destroyed, Lost or
Stolen Right Certificates.............. 13
Section 7. Exercise of Rights; Purchase Price;
Expiration Date of Rights.............. 15
Section 8. Cancellation and Destruction of
Right Certificates..................... 17
Section 9. Availability of Preferred Shares......... 18
Section 10. Preferred Shares Record Date............. 19
Section 11. Adjustment of Purchase Price, Number of
Shares or Number of Rights............. 20
Section 12. Certificate of Adjusted Purchase Price
or Number of Shares.................... 35
Section 13. Consolidation, Merger or Sale or Transfer
of Assets or Earning Power............. 35
Section 14. Fractional Rights and Fractional Shares.. 37
Section 15. Rights of Action......................... 40
Section 16. Agreement of Right Holders............... 41
Section 17. Right Certificate Holder Not Deemed a
Stockholder............................ 42
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Page
Section 18. Concerning the Rights Agent.............. 42
Section 19. Merger or Consolidation or Change of
Name of Rights Agent................... 44
Section 20. Duties of Rights Agent................... 45
Section 21. Change of Rights Agent................... 49
Section 22. Issuance of New Right Certificates....... 51
Section 23. Redemption............................... 51
Section 24. Exchange................................. 53
Section 25. Notice of Certain Events................. 56
Section 26. Notices.................................. 57
Section 27. Supplements and Amendments............... 58
Section 28. Successors............................... 59
Section 29. Benefits of this Rights Agreement........ 60
Section 30. Severability............................. 60
Section 31. Governing Law............................ 60
Section 32. Counterparts............................. 61
Section 33. Descriptive Headings..................... 61
Signatures............................................ 62
Exhibit A - Form of Right Certificate
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Rights Agreement, dated as of April 24, 1997,
between New Xxxxxx International, Inc., an Indiana corpora-
tion which, following the Spin-Off (as defined herein), will
be renamed Xxxxxx International, Inc. (the "Company"), and
First Chicago Trust Company of New York, a New York corpora-
tion (the "Rights Agent").
The Board of Directors of the Company has autho-
rized and declared a dividend of one preferred share purchase
right (a "Right") for each Common Share (as hereinafter de-
fined) of the Company to be issued in the distribution of
Common Shares of the Company (the "Spin-Off") by Xxxxxx
International, Inc., an Indiana corporation ("MII"), to its
shareholders, each Right representing the right to purchase
one one-hundredth of a Preferred Share (as hereinafter de-
fined), upon the terms and subject to the conditions herein
set forth, and has further authorized and directed the issu-
ance of one Right with respect to each Common Share of the
Company that shall become outstanding between the effective
date of the Spin-Off (the "Record Date") and the earliest of
the Distribution Date, the Redemption Date and the Final
Expiration Date (as such terms are hereinafter defined).
Accordingly, in consideration of the premises and
the mutual agreements herein set forth, the parties hereby
agree as follows:
Section 1. Definitions. For purposes of this
Rights Agreement, the following terms have the meanings indi-
cated:
(a) "Acquiring Person" shall mean any Person who
or which, together with all Affiliates and Associates of such
Person, shall be the Beneficial Owner of 20% or more of the
Common Shares of the Company then outstanding, but shall not
include the Company, any Subsidiary of the Company, any em-
ployee benefit plan of the Company or any Subsidiary of the
Company, any entity holding Common Shares for or pursuant to
the terms of any such plan or, prior to the spin-off, MII.
Notwithstanding the foregoing, no Person shall become an
"Acquiring Person" as the result of an acquisition of Common
Shares by the Company which, by reducing the number of shares
outstanding, increases the proportionate number of shares
beneficially owned by such Person to 20% or more of the
Common Shares of the Company then outstanding; provided,
however, that if a Person shall become the Beneficial Owner
of 20% or more of the Common Shares of the Company then out-
standing by reason of share purchases by the Company and
shall, after such share purchases by the Company, become the
Beneficial Owner of any additional Common Shares of the Com-
pany, then such Person shall be deemed to be an "Acquiring
Person." Notwithstanding the foregoing, if the Board of Di-
rectors of the Company determines in good faith that a Person
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who would otherwise be an "Acquiring Person," as defined pur-
suant to the foregoing provisions of this paragraph (a), has
become such inadvertently, and such Person divests as
promptly as practicable a sufficient number of Common Shares
so that such Person would no longer be an "Acquiring Person,"
as defined pursuant to the foregoing provisions of this para-
graph (a), then such Person shall not be deemed to be an "Ac-
xxxxxxx Person" for any purposes of this Rights Agreement.
(b) "Affiliate" shall have the meaning ascribed to
such term in Rule 12b-2 of the General Rules and Regulations
under the Exchange Act as in effect on the date of this
Rights Agreement.
(c) "Associate" shall have the meaning ascribed to
such term in Rule 12b-2 of the General Rules and Regulations
under the Exchange Act as in effect on the date of this
Rights Agreement.
(d) A Person shall be deemed the "Beneficial
Owner" of and shall be deemed to "beneficially own" any secu-
rities:
(i) which such Person or any of such Person's Af-
filiates or Associates beneficially owns, directly or
indirectly;
(ii) which such Person or any of such Person's Af-
filiates or Associates has (A) the right to acquire
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(whether such right is exercisable immediately or only
after the passage of time) pursuant to any agreement,
arrangement or understanding (other than customary
agreements with and between underwriters and selling
group members with respect to a bona fide public offer-
ing of securities), or upon the exercise of conversion
rights, exchange rights, rights (other than these
Rights), warrants or options, or otherwise; provided,
however, that a Person shall not be deemed the Benefi-
cial Owner of, or to beneficially own, securities ten-
dered pursuant to a tender or exchange offer made by or
on behalf of such Person or any of such Person's Af-
filiates or Associates until such tendered securities
are accepted for purchase or exchange; or (B) the right
to vote pursuant to any agreement, arrangement or under-
standing; provided, however, that a Person shall not be
deemed the Beneficial Owner of, or to beneficially own,
any security if the agreement, arrangement or under-
standing to vote such security (1) arises solely from a
revocable proxy or consent given to such Person in re-
sponse to a public proxy or consent solicitation made
pursuant to, and in accordance with, the applicable
rules and regulations promulgated under the Exchange Act
and (2) is not also then reportable on Schedule 13D un-
der the Exchange Act (or any comparable or successor
report); or
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(iii) which are beneficially owned, directly or in-
directly, by any other Person with which such Person or
any of such Person's Affiliates or Associates has any
agreement, arrangement or understanding (other than cus-
tomary agreements with and between underwriters and
selling group members with respect to a bona fide public
offering of securities) for the purpose of acquiring,
holding, voting (except to the extent contemplated by
the proviso to Section 1(c)(ii)(B)) or disposing of any
securities of the Company.
Notwithstanding anything in this definition of Ben-
eficial Ownership to the contrary, the phrase "then outstand-
ing", when used with reference to a Person's Beneficial Own-
ership of securities of the Company, shall mean the number of
such securities then issued and outstanding together with the
number of such securities not then actually issued and out-
standing which such Person would be deemed to own benefi-
cially hereunder.
(e) "Business Day" shall mean any day other than a
Saturday, a Sunday, or a day on which banking institutions in
New York are authorized or obligated by law or executive or-
der to close.
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(f) "Close of Business" on any given date shall
mean 5:00 P.M., New York time, on such date; provided, how-
ever, that, if such date is not a Business Day, it shall mean
5:00 P.M., New York time, on the next succeeding Business
Day.
(g) "Common Shares" when used with reference to
the Company shall mean the shares of common stock, par value
$1.00 per share, of the Company. "Common Shares" when used
with reference to any Person other than the Company shall
mean the capital stock (or equity interest) with the greatest
voting power of such other Person or, if such other Person is
a Subsidiary of another Person, the Person or Persons which
ultimately control such first-mentioned Person.
(h) "Company" shall have the meaning set forth in
the preamble hereof.
(i) "current per share market price" shall have
the meaning set forth in Section 11(d) hereof.
(j) "Distribution Date" shall have the meaning set
forth in Section 3 hereof.
(k) "equivalent preferred shares" shall have the
meaning set forth in Section 11(b) hereof.
(l) "Exchange Act" shall mean the Securities Ex-
change Act of 1934, as amended.
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(m) "Exchange Ratio" shall have the meaning set
forth in Section 24(a) hereof.
(n) "Final Expiration Date" shall have the meaning
set forth in Section 7(a) hereof.
(o) "NASDAQ" shall mean the National Association
of Securities Dealers, Inc. Automated Quotation System.
(p) "Person" shall mean any individual, firm, cor-
poration or other entity, and shall include any successor (by
merger or otherwise) of such entity.
(q) "Preferred Shares" shall mean shares of Series
A Junior Participating Preferred Stock, par value $1.00 per
share, of the Company having the rights and preferences set
forth in the Articles of Incorporation of the Company.
(r) "Purchase Price" shall have the meaning set
forth in Section 4 hereof.
(s) "Record Date" shall have the meaning set forth
in the second paragraph hereof.
(t) "Redemption Date" shall have the meaning set
forth in Section 7(a) hereof.
(u) "Redemption Price" shall have the meaning set
forth in Section 23(a) hereof.
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(v) "Right" shall have the meaning set forth in
the second paragraph hereof.
(w) "Right Certificate" shall have the meaning set
forth in Section 3(a) hereof.
(x) "Rights Agent" shall have the meaning set
forth in the preamble hereof.
(y) "Security" shall have the meaning set forth in
Section 11(d) hereof.
(z) "Shares Acquisition Date" shall mean the first
date of public announcement by the Company or an Acquiring
Person that an Acquiring Person has become such.
(aa) "Subsidiary" of any Person shall mean any
corporation or other entity of which a majority of the voting
power of the voting equity securities or equity interest is
owned, directly or indirectly, by such Person.
(ab) "Trading Day" shall have the meaning set
forth in Section 11(d) hereof.
Section 2. Appointment of Rights Agent. The Com-
pany hereby appoints the Rights Agent to act as agent for the
Company and the holders of the Rights (who, in accordance
with Section 3 hereof, shall, prior to the Distribution Date,
also be the holders of the Common Shares) in accordance with
the terms and conditions hereof, and the Rights Agent hereby
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accepts such appointment. The Company may from time to time
appoint such co-Rights Agents as it may deem necessary or
desirable.
Section 3. Issue of Right Certificates. (a) Un-
til the earlier of (i) the tenth day after the Shares Acqui-
sition Date or (ii) the tenth Business Day (or such later
date as may be determined by action of the Board of Directors
of the Company prior to such time as any Person becomes an
Acquiring Person) after the date of the commencement by any
Person (other than the Company, any Subsidiary of the Com-
pany, any employee benefit plan of the Company or of any Sub-
sidiary of the Company or any entity holding Common Shares
for or pursuant to the terms of any such plan) of, or of the
first public announcement of the intention of any Person
(other than the Company, any Subsidiary of the Company, any
employee benefit plan of the Company or of any Subsidiary of
the Company or any entity holding Common Shares for or pursu-
ant to the terms of any such plan) to commence, a tender or
exchange offer the consummation of which would result in any
Person becoming the Beneficial Owner of Common Shares ag-
gregating 20% or more of the then outstanding Common Shares
(including any such date which is after the date of this
Rights Agreement and prior to the issuance of the Rights; the
earlier of such dates being herein referred to as the "Dis-
tribution Date"), (x) the Rights will be evidenced (subject
to the provisions of Section 3(b) hereof) by the certificates
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for Common Shares registered in the names of the holders
thereof (which certificates shall also be deemed to be Right
Certificates) and not by separate Right Certificates, and (y)
the right to receive Right Certificates will be transferable
only in connection with the transfer of Common Shares. As
soon as practicable after the Distribution Date, the Company
will prepare and execute, the Rights Agent will countersign,
and the Company will send or cause to be sent (and the Rights
Agent will, if requested, send) by first-class, insured,
postage-prepaid mail, to each record holder of Common Shares
as of the Close of Business on the Distribution Date, at the
address of such holder shown on the records of the Company, a
Right Certificate, in substantially the form of Exhibit A
hereto (a "Right Certificate"), evidencing one Right for each
Common Share so held. As of the Distribution Date, the
Rights will be evidenced solely by such Right Certificates.
(b) Until the earliest of the Distribution Date,
the Redemption Date or the Final Expiration Date, Certifi-
xxxxx for Common Shares shall have impressed on, printed on,
written on or otherwise affixed to them the following legend:
This certificate also evidences and entitles the holder
hereof to certain rights as set forth in a Rights Agree-
ment between Xxxxxx International, Inc. (formerly New
Xxxxxx International, Inc.) and First Chicago Trust Com-
pany of New York, dated as of April 24, 1997 (the
"Rights Agreement"), the terms of which are hereby in-
corporated herein by reference and a copy of which is on
file at the principal executive offices of Xxxxxx Inter-
national, Inc. Under certain circumstances, as set
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forth in the Rights Agreement, such Rights will be evi-
denced by separate certificates and will no longer be
evidenced by this certificate. Xxxxxx International,
Inc. will mail to the holder of this certificate a copy
of the Rights Agreement without charge after receipt of
a written request therefor. Under certain circum-
stances, as set forth in the Rights Agreement, Rights
issued to any Person who becomes an Acquiring Person (as
defined in the Rights Agreement) may become null and
void.
With respect to such certificates containing the foregoing
legend, until the Distribution Date, the Rights associated
with the Common Shares represented by such certificates shall
be evidenced by such certificates alone, and the surrender
for transfer of any such certificate shall also constitute
the transfer of the Rights associated with the Common Shares
represented thereby. In the event that the Company purchases
or acquires any Common Shares after the Record Date but prior
to the Distribution Date, any Rights associated with such
Common Shares shall be deemed cancelled and retired so that
the Company shall not be entitled to exercise any Rights as-
sociated with the Common Shares which are no longer outstand-
ing.
Section 4. Form of Right Certificates. The Right
Certificates (and the forms of election to purchase Preferred
Shares and of assignment to be printed on the reverse
thereof) shall be substantially the same as 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
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with the provisions of this Rights 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 regu-
lation of any stock exchange or automated quotation system on
which the Rights may from time to time be listed, or to con-
form to usage. Subject to the provisions of Section 22
hereof, the Right Certificates shall entitle the holders
thereof to purchase such number of one one-hundredths of a
Preferred Share as shall be set forth therein at the price
per one one-hundredth of a Preferred Share set forth therein
(the "Purchase Price"), but the number of such one one--
hundredths of a Preferred Share and the Purchase Price shall
be subject to adjustment as provided herein.
Section 5. Countersignature and Registration. The
Right Certificates shall be executed on behalf of the Company
by its Chairman of the Board, its Chief Executive Officer,
its President, any of its Vice Presidents, or its Treasurer,
either manually or by facsimile signature, shall have affixed
thereto the Company's seal or a facsimile thereof, and shall
be attested by the Secretary or an Assistant Secretary of the
Company, either manually or by facsimile signature. The
Right Certificates shall be manually countersigned by the
Rights Agent and shall not be valid for any purpose unless
countersigned. In case any officer of the Company who shall
have signed any of the Right Certificates shall cease to be
such officer of the Company before countersignature by the
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Rights Agent and issuance and delivery by the Company, such
Right Certificates, nevertheless, may be countersigned by the
Rights Agent and issued and delivered by the Company with the
same force and effect as though the person who signed such
Right Certificates had not ceased to be such officer of the
Company; and any Right Certificate may be signed on behalf of
the Company by any person who, at the actual date of the ex-
ecution of such Right Certificate, shall be a proper officer
of the Company to sign such Right Certificate, although at
the date of the execution of this Rights Agreement any such
person was not such an officer.
Following the Distribution Date, the Rights Agent
will keep or cause to be kept, at its principal office, books
for registration and transfer of the Right Certificates is-
sued hereunder. Such books shall show the names and ad-
dresses of the respective holders of the Right Certificates,
the number of Rights evidenced on its face by each of the
Right Certificates and the date of each of the Right Certifi-
xxxxx.
Section 6. Transfer, Split Up, Combination and
Exchange of Right Certificates; Mutilated, Destroyed, Lost or
Stolen Right Certificates. Subject to the provisions of Sec-
tion 14 hereof, at any time after the Close of Business on
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the Distribution Date, and at or prior to the Close of Busi-
ness on the earlier of the Redemption Date or the Final Expi-
ration Date, any Right Certificate or Right Certificates
(other than Right Certificates representing Rights that have
become void pursuant to Section 11(a)(ii) hereof or that have
been exchanged pursuant to Section 24 hereof) may be trans-
ferred, split up, combined or exchanged for another Right
Certificate or Right Certificates entitling the registered
holder to purchase a like number of one one-hundredths of a
Preferred Share as the Right Certificate or Right Certifi-
xxxxx surrendered then entitled such holder to purchase. Any
registered holder desiring to transfer, split up, combine or
exchange any Right Certificate or Right Certificates shall
make such request in writing delivered to the Rights Agent,
and shall surrender the Right Certificate or Right Certifi-
xxxxx to be transferred, split up, combined or exchanged at
the principal office of the Rights Agent. Thereupon the
Rights Agent shall countersign and deliver to the person en-
titled thereto a Right Certificate or Right Certificates, as
the case may be, as so requested. The Company may require
payment of a sum sufficient to cover any tax or governmental
charge that may be imposed in connection with any transfer,
split up, combination or exchange of Right Certificates.
Upon receipt by the Company and the Rights Agent of
evidence reasonably satisfactory to them of the loss, theft,
destruction or mutilation of a Right Certificate, and, in
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case of loss, theft or destruction, of indemnity or security
reasonably satisfactory to them, and, at the Company's re-
quest, reimbursement to the Company and the Rights Agent of
all reasonable expenses incidental thereto, and upon sur-
render to the Rights Agent and cancellation of the Right Cer-
tificate if mutilated, the Company will make and deliver a
new Right Certificate of like tenor to the Rights Agent for
delivery to the registered holder in lieu of the Right Cer-
tificate so lost, stolen, destroyed or mutilated.
Section 7. Exercise of Rights; Purchase Price;
Expiration Date of Rights. (a) The registered holder of any
Right Certificate may exercise the Rights evidenced thereby
(except as otherwise provided herein), in whole or in part,
at any time after the Distribution Date, upon surrender of
the Right Certificate, with the form of election to purchase
on the reverse side thereof duly executed, to the Rights
Agent at the principal office of the Rights Agent, together
with payment of the Purchase Price for each one one-hundredth
of a Preferred Share as to which the Rights are exercised, at
or prior to the earliest of (i) the Close of Business on the
tenth anniversary of the Record Date (the "Final Expiration
Date"), (ii) the time at which the Rights are redeemed as
provided in Section 23 hereof (the "Redemption Date"), or
(iii) the time at which such Rights are exchanged as provided
in Section 24 hereof.
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(b) The Purchase Price for each one one-hundredth
of a Preferred Share purchasable pursuant to the exercise of
a Right shall initially be $105.00, and shall be subject to
adjustment from time to time as provided in Section 11 or 13
hereof and shall be payable in lawful money of the United
States of America in accordance with paragraph (c) below.
(c) Upon receipt of a Right Certificate represent-
ing exercisable Rights, with the form of election to purchase
duly executed, accompanied by payment of the Purchase Price
for the shares to be purchased and an amount equal to any
applicable transfer tax required to be paid by the holder of
such Right Certificate in accordance with Section 9 hereof by
certified check, cashier's check or money order payable to
the order of the Company, the Rights Agent shall thereupon
promptly (i) (A) requisition from any transfer agent of the
Preferred Shares certificates for the number of Preferred
Shares to be purchased and the Company hereby irrevocably
authorizes any such transfer agent to comply with all such
requests, or (B) requisition from the depositary agent de-
positary receipts representing such number of one one-
hundredths of a Preferred Share as are to be purchased (in
which case certificates for the Preferred Shares represented
by such receipts shall be deposited by the transfer agent of
the Preferred Shares with such depositary agent) and the Com-
pany hereby directs such depositary agent to comply with such
request, (ii) when appropriate, requisition from the Company
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the amount of cash to be paid in lieu of issuance of frac-
tional shares in accordance with Section 14 hereof, (iii)
promptly after receipt of such certificates or depositary
receipts, cause the same to be delivered to or upon the order
of the registered holder of such Right Certificate, regis-
tered in such name or names as may be designated by such
holder and (iv) when appropriate, after receipt, deliver such
cash to or upon the order of the registered holder of such
Right Certificate.
(d) In case the registered holder of any Right
Certificate shall exercise less than all the Rights evidenced
thereby, a new Right Certificate evidencing Rights equivalent
to the Rights remaining unexercised shall be issued by the
Rights Agent to the registered holder of such Right Certifi-
cate or to his duly authorized assigns, subject to the provi-
sions of Section 14 hereof.
Section 8. Cancellation and Destruction of Right
Certificates. All Right Certificates surrendered for the
purpose of exercise, transfer, split up, combination or ex-
change shall, if surrendered to the Company or to any of its
agents, be delivered to the Rights Agent for cancellation or
in cancelled form, or, if surrendered to the Rights Agent,
shall be cancelled by it, and no Right Certificates shall be
issued in lieu thereof except as expressly permitted by any
of the provisions of this Rights Agreement. The Company
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shall deliver to the Rights Agent for cancellation and re-
tirement, and the Rights Agent shall so cancel and retire,
any other Right Certificate purchased or acquired by the Com-
pany otherwise than upon the exercise thereof. The Rights
Agent shall deliver all cancelled Right Certificates to the
Company, or shall, at the written request of the Company,
destroy such cancelled Right Certificates, and, in such case,
shall deliver a certificate of destruction thereof to the
Company.
Section 9. Availability of Preferred Shares. The
Company covenants and agrees that it will cause to be re-
served and kept available out of its authorized and unissued
Preferred Shares or any Preferred Shares held in its trea-
sury, the number of Preferred Shares that will be sufficient
to permit the exercise in full of all outstanding Rights in
accordance with Section 7. The Company covenants and agrees
that it will take all such action as may be necessary to en-
sure that all Preferred Shares delivered upon exercise of
Rights shall, at the time of delivery of the certificates for
such Preferred Shares (subject to payment of the Purchase
Price), be duly and validly authorized and issued and fully
paid and nonassessable shares.
The Company further covenants and agrees that it
will pay when due and payable any and all federal and state
transfer taxes and charges which may be payable in respect of
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the issuance or delivery of the Right Certificates or of any
Preferred Shares upon the exercise of Rights. The Company
shall not, however, be required to pay any transfer tax which
may be payable in respect of any transfer or delivery of
Right Certificates to a person other than, or the issuance or
delivery of certificates or depositary receipts for the Pre-
ferred Shares in a name other than that of, the registered
holder of the Right Certificate evidencing Rights surrendered
for exercise or to issue or to deliver any certificates or
depositary receipts for Preferred Shares upon the exercise of
any Rights until any such tax shall have been paid (any such
tax being payable by the holder of such Right Certificate at
the time of surrender) or until it has been established to
the Company's reasonable satisfaction that no such tax is
due.
Section 10. Preferred Shares Record Date. Each
person in whose name any certificate for Preferred Shares is
issued upon the exercise of Rights shall for all purposes be
deemed to have become the holder of record of the Preferred
Shares represented thereby on, and such certificate shall be
dated, the date upon which the Right Certificate evidencing
such Rights was duly surrendered and payment of the Purchase
Price (and any applicable transfer taxes) was made; provided,
however, that if the date of such surrender and payment is a
date upon which the Preferred Shares transfer books of the
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Company are closed, such person shall be deemed to have be-
come the record holder of such shares on, and such certifi-
cate shall be dated, the next succeeding Business Day on
which the Preferred Shares transfer books of the Company are
open. Prior to the exercise of the Rights evidenced thereby,
the holder of a Right Certificate shall not be entitled to
any rights of a holder of Preferred Shares for which the
Rights shall be exercisable, including, without limitation,
the right to vote, to receive dividends or other distribu-
tions or to exercise any preemptive rights, and shall not be
entitled to receive any notice of any proceedings of the Com-
pany, except as provided herein.
Section 11. Adjustment of Purchase Price, Number
of Shares or Number of Rights. The Purchase Price, the num-
ber of Preferred Shares covered by each Right and the number
of Rights outstanding are subject to adjustment from time to
time as provided in this Section 11.
(a) (i) In the event the Company shall at any
time after the Record Date (A) declare a dividend on the Pre-
ferred Shares payable in Preferred Shares, (B) subdivide the
outstanding Preferred Shares, (C) combine the outstanding
Preferred Shares into a smaller number of Preferred Shares or
(D) issue any shares of its capital stock in a reclassifica-
tion of the Preferred Shares (including any such reclas-
sification in connection with a consolidation or merger in
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which the Company is the continuing or surviving corpora-
tion), except as otherwise provided in this Section 11(a),
the Purchase Price in effect at the time of the record date
for such dividend or of the effective date of such subdivi-
sion, combination or reclassification, and the number and
kind of shares of capital stock issuable on such date, shall
be proportionately adjusted so that the holder of any Right
exercised after such time shall be entitled to receive the
aggregate number and kind of shares of capital stock which,
if such Right had been exercised immediately prior to such
date and at a time when the Preferred Shares transfer books
of the Company were open, he would have owned upon such exer-
cise and been entitled to receive by virtue of such dividend,
subdivision, combination or reclassification; provided, how-
ever, that in no event shall the consideration to be paid
upon the exercise of one Right be less than the aggregate par
value of the shares of capital stock of the Company issuable
upon exercise of one Right.
(ii) Subject to Section 24 of this Rights Agree-
ment, in the event any Person becomes an Acquiring Person
after the Record Date, each holder of a Right shall thereaf-
ter have a right to receive, upon exercise thereof at a price
equal to the then current Purchase Price multiplied by the
number of one one-hundredths of a Preferred Share for which a
Right is then exercisable, in accordance with the terms of
this Rights Agreement and in lieu of Preferred Shares, such
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number of Common Shares of the Company as shall equal the
result obtained by (A) multiplying the then current Purchase
Price by the number of one one-hundredths of a Preferred
Share for which a Right is then exercisable and dividing that
product by (B) 50% of the then current per share market price
of the Company's Common Shares (determined pursuant to Sec-
tion 11(d) hereof) on the date of the occurrence of such
event. In the event that any Person shall become an Acquir-
ing Person and the Rights shall then be outstanding, the Com-
pany shall not take any action which would eliminate or xx-
xxxxxx the benefits intended to be afforded by the Rights.
From and after the occurrence of such event, any
Rights that are or were acquired or beneficially owned by any
Acquiring Person (or any Associate or Affiliate of such Ac-
xxxxxxx Person) shall be void and any holder of such Rights
shall thereafter have no right to exercise such Rights under
any provision of this Rights Agreement. No Right Certificate
shall be issued pursuant to Section 3 that represents Rights
beneficially owned by an Acquiring Person whose Rights would
be void pursuant to the preceding sentence or any Associate
or Affiliate thereof; no Right Certificate shall be issued at
any time upon the transfer of any Rights to an Acquiring Per-
son whose Rights would be void pursuant to the preceding sen-
tence or any Associate or Affiliate thereof or to any nominee
of such Acquiring Person, Associate or Affiliate; and any
Right Certificate delivered to the Rights Agent for transfer
-22-
to an Acquiring Person whose Rights would be void pursuant to
the preceding sentence shall be cancelled.
(iii) In the event that there shall not be suf-
ficient Common Shares issued but not outstanding or autho-
rized but unissued to permit the exercise in full of the
Rights in accordance with the foregoing subparagraph (ii),
the Company shall take all such action as may be necessary to
authorize additional Common Shares for issuance upon exercise
of the Rights. In the event the Company shall, after good
faith effort, be unable to take all such action as may be
necessary to authorize such additional Common Shares, the
Company shall substitute, for each Common Share that would
otherwise be issuable upon exercise of a Right, a number of
Preferred Shares or fraction thereof such that the current
per share market price of one Preferred Share multiplied by
such number or fraction is equal to the current per share
market price of one Common Share as of the date of issuance
of such Preferred Shares or fraction thereof.
(b) In case the Company shall fix a record date
for the issuance of rights, options or warrants to all hold-
ers of Preferred Shares entitling them (for a period expiring
within 45 calendar days after such record date) to subscribe
for or purchase Preferred Shares (or shares having the same
rights, privileges and preferences as the Preferred Shares
("equivalent preferred shares")) or securities convertible
-23-
into Preferred Shares or equivalent preferred shares at a
price per Preferred Share or equivalent preferred share (or
having a conversion price per share, if a security convert-
ible into Preferred Shares or equivalent preferred shares)
less than the then current per share market price of the Pre-
ferred Shares on such record date, the Purchase Price to be
in effect after such record date shall be determined by mul-
tiplying the Purchase Price in effect immediately prior to
such record date by a fraction, the numerator of which shall
be the number of Preferred Shares outstanding on such record
date plus the number of Preferred Shares which the aggregate
offering price of the total number of Preferred Shares and/or
equivalent preferred shares so to be offered (and/or the ag-
gregate initial conversion price of the convertible securi-
ties so to be offered) would purchase at such current market
price and the denominator of which shall be the number of
Preferred Shares outstanding on such record date plus the
number of additional Preferred Shares and/or equivalent pre-
ferred shares to be offered for subscription or purchase (or
into which the convertible securities so to be offered are
initially convertible); provided, however, that in no event
shall the consideration to be paid upon the exercise of one
Right be less than the aggregate par value of the shares of
capital stock of the Company issuable upon exercise of one
Right. In case such subscription price may be paid in a con-
sideration part or all of which shall be in a form other than
-24-
cash, the value of such consideration shall be as determined
in good faith by the Board of Directors of the Company, whose
determination shall be described in a statement filed with
the Rights Agent and shall be binding on the Rights Agent and
holders of the Rights. Preferred Shares owned by or held for
the account of the Company shall not be deemed outstanding
for the purpose of any such computation. Such adjustment
shall be made successively whenever such a record date is
fixed; and in the event that such rights, options or warrants
are not so issued, the Purchase Price shall be adjusted to be
the Purchase Price which would then be in effect if such
record date had not been fixed.
(c) In case the Company shall fix a record date
for the making of a distribution to all holders of the Pre-
ferred Shares (including any such distribution made in con-
nection with a consolidation or merger in which the Company
is the continuing or surviving corporation) of evidences of
indebtedness or assets (other than a regular quarterly cash
dividend or a dividend payable in Preferred Shares) or sub-
scription rights or warrants (excluding those referred to in
Section 11(b) hereof), the Purchase Price to be in effect
after such record date shall be determined by multiplying the
Purchase Price in effect immediately prior to such record
date by a fraction, the numerator of which shall be the then
current per share market price of the Preferred Shares on
such record date, less the fair market value (as determined
-25-
in good faith by the Board of Directors of the Company, whose
determination shall be described in a statement filed with
the Rights Agent and shall be binding on the Rights Agent and
holders of the Rights) of the portion of the assets or evi-
dences of indebtedness so to be distributed or of such sub-
scription rights or warrants applicable to one Preferred
Share and the denominator of which shall be such current per
share market price of the Preferred Shares; provided, how-
ever, that in no event shall the consideration to be paid
upon the exercise of one Right be less than the aggregate par
value of the shares of capital stock of the Company to be
issued upon exercise of one Right. Such adjustments shall be
made successively whenever such a record date is fixed; and
in the event that such distribution is not so made, the Pur-
chase Price shall again be adjusted to be the Purchase Price
which would then be in effect if such record date had not
been fixed.
(d) (i) For the purpose of any computation here-
under, the "current per share market price" of any security
(a "Security" for the purpose of this Section 11(d)(i)) on
any date shall be deemed to be the average of the daily clos-
ing prices per share of such Security for the 30 consecutive
Trading Days immediately prior to such date; provided, how-
ever, that in the event that the current per share market
price of the Security is determined during a period following
the announcement by the issuer of such Security of (A) a
-26-
dividend or distribution on such Security payable in shares
of such Security or securities convertible into such shares,
or (B) any subdivision, combination or reclassification of
such Security and prior to the expiration of 30 Trading Days
after the ex-dividend date for such dividend or distribution,
or the record date for such subdivision, combination or re-
classification, then, and in each such case, the current per
share market price shall be appropriately adjusted to reflect
the current market price per share equivalent of such Secu-
rity. The closing price for each day shall be the last sale
price, regular way, or, in case no such sale takes place on
such day, the average of the closing bid and asked prices,
regular way, in either case, as reported in the principal
consolidated transaction reporting system with respect to
securities listed or admitted to trading on the New York
Stock Exchange or, if the Security is not listed or admitted
to trading on the New York Stock Exchange, as reported in the
principal consolidated transaction reporting system with re-
spect to securities listed on the principal national securi-
ties exchange on which the Security is listed or admitted to
trading or, if the Security is not listed or admitted to
trading on any national securities exchange, the last quoted
price or, if not so quoted, the average of the high bid and
low asked prices in the over-the-counter market, as reported
by NASDAQ or such other system then in use, or, if on any
-27-
such date the Security is not quoted by any such organiza-
tion, the average of the closing bid and asked prices as fur-
nished by a professional market maker making a market in the
Security selected by the Board of Directors of the Company.
The term "Trading Day" shall mean a day on which the princi-
pal national securities exchange on which the Security is
listed or admitted to trading is open for the transaction of
business or, if the Security is not listed or admitted to
trading on any national securities exchange, a Business Day.
(ii) For the purpose of any computation hereunder,
the "current per share market price" of the Preferred Shares
shall be determined in accordance with the method set forth
in Section 11(d)(i). If the Preferred Shares are not pub-
licly traded, the "current per share market price" of the
Preferred Shares shall be conclusively deemed to be the cur-
rent per share market price of the Common Shares as deter-
mined pursuant to Section 11(d)(i) (appropriately adjusted to
reflect any stock split, stock dividend or similar transac-
tion occurring after the date hereof), multiplied by one hun-
dred. If neither the Common Shares nor the Preferred Shares
are publicly held or so listed or traded, "current per share
market price" shall mean the fair value per share as deter-
mined in good faith by the Board of Directors of the Company,
whose determination shall be described in a statement filed
with the Rights Agent.
-28-
(e) No adjustment in the Purchase Price shall be
required unless such adjustment would require an increase or
decrease of at least 1% in the Purchase Price; provided, how-
ever, 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 near-
est cent or to the nearest one one-millionth of a Preferred
Share or one ten-thousandth of any other share or security as
the case may be. Notwithstanding the first sentence of this
Section 11(e), any adjustment required by this Section 11
shall be made no later than the earlier of (i) three years
from the date of the transaction which requires such adjust-
ment or (ii) the date of the expiration of the right to exer-
cise any Rights.
(f) If, as a result of an adjustment made pursuant
to Section 11(a) hereof, the holder of any Right thereafter
exercised shall become entitled to receive any shares of
capital stock of the Company other than Preferred Shares,
thereafter the number of such other shares so receivable upon
exercise of any Right shall be subject to adjustment from
time to time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to the Preferred
Shares contained in Section 11(a) through (c), inclusive, and
the provisions of Sections 7, 9, 10 and 13 with respect to
-29-
the Preferred Shares 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 here-
under shall evidence the right to purchase, at the adjusted
Purchase Price, the number of one one-hundredths of a Pre-
ferred Share purchasable from time to time hereunder upon
exercise of the Rights, all subject to further adjustment as
provided herein.
(h) Unless the Company shall have exercised its
election as provided in Section 11(i), upon each adjustment
of the Purchase Price as a result of the calculations made in
Sections 11(b) and (c), each Right outstanding immediately
prior to the making of such adjustment shall thereafter evi-
dence the right to purchase, at the adjusted Purchase Price,
that number of one one-hundredths of a Preferred Share (cal-
culated to the nearest one one-millionth of a Preferred
Share) obtained by (A) multiplying (x) the number of one
one-hundredths of a share covered by a Right immediately
prior to this adjustment by (y) the Purchase Price in effect
immediately prior to such adjustment of the Purchase Price
and (B) dividing the product so obtained by the Purchase
Price in effect immediately after such adjustment of the Pur-
chase Price.
-30-
(i) The Company may elect on or after the date of
any adjustment of the Purchase Price to adjust the number of
Rights in substitution for any adjustment in the number of
one one-hundredths of a Preferred Share purchasable upon the
exercise of a Right. Each of the Rights outstanding after
such adjustment of the number of Rights shall be exercisable
for the number of one one-hundredths of a Preferred Share for
which a Right was exercisable immediately prior to such ad-
justment. Each Right held of record prior to such adjustment
of the number of Rights shall become that number of Rights
(calculated to the nearest one ten-thousandth) obtained by
dividing the Purchase Price in effect immediately prior to
adjustment of the Purchase Price by the Purchase Price in
effect immediately after adjustment of the Purchase Price.
The Company shall make a public announcement of its election
to adjust the number of Rights, indicating the record date
for the adjustment, and, if known at the time, the amount of
the adjustment to be made. This record date may be the date
on which the Purchase Price is adjusted or any day thereaf-
ter, but, if the Right Certificates have been issued, shall
be at least 10 days later than the date of the public an-
nouncement. If Right Certificates have been issued, upon
each adjustment of the number of Rights pursuant to this Sec-
tion 11(i), the Company shall, as promptly as practicable,
cause to be distributed to holders of record of Right Cer-
tificates on such record date Right Certificates evidencing,
-31-
subject to Section 14 hereof, the additional Rights to which
such holders shall be entitled as a result of such adjust-
ment, or, at the option of the Company, shall cause to be
distributed to such holders of record in substitution and
replacement for the Right Certificates held by such holders
prior to the date of adjustment, and upon surrender thereof,
if required by the Company, new Right Certificates evidencing
all the Rights to which such holders shall be entitled after
such adjustment. Right Certificates so to be distributed
shall be issued, executed and countersigned in the manner
provided for herein and shall be registered in the names of
the holders of record of Right Certificates on the record
date specified in the public announcement.
(j) Irrespective of any adjustment or change in
the Purchase Price or the number of one one-hundredths of a
Preferred Share issuable upon the exercise of the Rights, the
Right Certificates theretofore and thereafter issued may con-
tinue to express the Purchase Price and the number of one
one-hundredths of a Preferred Share which were expressed in
the initial Right Certificates issued hereunder.
(k) Before taking any action that would cause an
adjustment reducing the Purchase Price below one one-
hundredth of the then par value, if any, of the Preferred
Shares issuable upon exercise of the Rights, the Company
shall take any corporate action which may, in the opinion of
-32-
its counsel, be necessary in order that the Company may val-
idly and legally issue fully paid and nonassessable Preferred
Shares 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 ef-
fective as of a record date for a specified event, the Com-
pany 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 Preferred Shares and other capital stock
or securities of the Company, if any, issuable upon such ex-
ercise over and above the Preferred Shares and other capital
stock or securities of the Company, if any, issuable upon
such exercise on the basis of the Purchase Price in effect
prior to such adjustment; provided, however, that the Company
shall deliver to such holder a due xxxx or other appropriate
instrument evidencing such holder's right to receive such
additional shares upon the occurrence of the event requiring
such adjustment.
(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 ad-
justments expressly required by this Section 11, as and to
the extent that it in its sole discretion shall determine to
be advisable in order that any consolidation or subdivision
-33-
of the Preferred Shares, issuance wholly for cash of any Pre-
ferred Shares at less than the current market price, issuance
wholly for cash of Preferred Shares or securities which by
their terms are convertible into or exchangeable for Pre-
ferred Shares, dividends on Preferred Shares payable in Pre-
ferred Shares or issuance of rights, options or warrants re-
ferred to hereinabove in Section 11(b), hereafter made by the
Company to holders of its Preferred Shares shall not be tax-
able to such stockholders.
(n) In the event that at any time after the Record
Date and prior to the Distribution Date, the Company shall
(i) declare or pay any dividend on the Common Shares payable
in Common Shares, or (ii) effect a subdivision, combination
or consolidation of the Common Shares (by reclassification or
otherwise than by payment of dividends in Common Shares) into
a greater or lesser number of Common Shares, then in any such
case (A) the number of one one-hundredths of a Preferred
Share purchasable after such event upon proper exercise of
each Right shall be determined by multiplying the number of
one one-hundredths of a Preferred Share so purchasable im-
mediately prior to such event by a fraction, the numerator of
which is the number of Common Shares outstanding immediately
before such event and the denominator of which is the number
of Common Shares outstanding immediately after such event,
and (B) each Common Share outstanding immediately after such
event shall have issued with respect to it that number of
-34-
Rights which each Common Share outstanding immediately prior
to such event had issued with respect to it. The adjustments
provided for in this Section 11(n) shall be made successively
whenever such a dividend is declared or paid or such a subdi-
vision, combination or consolidation is effected.
Section 12. Certificate of Adjusted Purchase Price
or Number of Shares. Whenever an adjustment is made as pro-
vided in Section 11 or 13 hereof, the Company shall promptly
(a) prepare a certificate setting forth such adjustment, and
a brief statement of the facts accounting for such adjust-
ment, (b) file with the Rights Agent and with each transfer
agent for the Common Shares or the Preferred Shares a copy of
such certificate and (c) mail a brief summary thereof to each
holder of a Right Certificate in accordance with Section 25
hereof.
Section 13. Consolidation, Merger or Sale or
Transfer of Assets or Earning Power. In the event, directly
or indirectly, at any time after a Person has become an Ac-
xxxxxxx Person, (a) the Company shall consolidate with, or
merge with and into, any other Person, (b) any Person shall
consolidate with the Company, or merge with and into the Com-
pany and the Company shall be the continuing or surviving
corporation of such merger and, in connection with such
merger, all or part of the Common Shares shall be changed
into or exchanged for stock or other securities of any other
-35-
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
or more transactions, assets or earning power aggregating 50%
or more of the assets or earning power of the Company and its
Subsidiaries (taken as a whole) to any other Person other
than the Company or one or more of its wholly-owned Subsid-
iaries, then, and in each such case, proper provision shall
be made so that (i) each holder of a Right (except as other-
wise provided herein) shall thereafter have the right to re-
ceive, upon the exercise thereof at a price equal to the then
current Purchase Price multiplied by the number of one one-
hundredths of a Preferred Share for which a Right is then
exercisable, in accordance with the terms of this Rights
Agreement and in lieu of Preferred Shares, such number of
Common Shares of such other Person (including the Company as
successor thereto or as the surviving corporation) as shall
equal the result obtained by (A) multiplying the then current
Purchase Price by the number of one one-hundredths of a Pre-
ferred Share for which a Right is then exercisable and divid-
ing that product by (B) 50% of the then current per share
market price of the Common Shares of such other Person (de-
termined pursuant to Section 11(d) hereof) on the date of
consummation of such consolidation, merger, sale or transfer;
(ii) the issuer of such Common Shares shall thereafter be
-36-
liable for, and shall assume, by virtue of such consolida-
tion, merger, sale or transfer, all the obligations and du-
ties of the Company pursuant to this Rights Agreement; (iii)
the term "Company" shall thereafter be deemed to refer to
such issuer; and (iv) such issuer shall take such steps (in-
cluding, but not limited to, the reservation of a sufficient
number of its Common Shares in accordance with Section 9
hereof) in connection with such consummation as may be neces-
sary to assure that the provisions hereof shall thereafter be
applicable, as nearly as reasonably may be, in relation to
the Common Shares thereafter deliverable upon the exercise of
the Rights. The Company shall not consummate any such con-
solidation, merger, sale or transfer unless prior thereto the
Company and such issuer shall have executed and delivered to
the Rights Agent a supplemental agreement so providing. The
Company shall not enter into any transaction of the kind re-
ferred to in this Section 13 if at the time of such transac-
tion there are any rights, warrants, instruments or securi-
ties outstanding or any agreements or arrangements which, as
a result of the consummation of such transaction, would
eliminate or substantially diminish the benefits intended to
be afforded by the Rights. The provisions of this Section 13
shall similarly apply to successive mergers or consolidations
or sales or other transfers.
Section 14. Fractional Rights and Fractional
Shares. (a) The Company shall not be required to issue
-37-
fractions of Rights or to distribute Right Certificates which
evidence fractional Rights. In lieu of such fractional
Rights, there shall be paid to the registered holders of the
Right Certificates with regard to which such fractional
Rights would otherwise be issuable, an amount in cash equal
to the same fraction of the current market value of a whole
Right. For the purposes of this Section 14(a), the current
market value of a whole Right shall be the closing price of
the Rights for the Trading Day immediately prior to the date
on which such fractional Rights would have been otherwise
issuable. The closing price for any day shall be the last
sale price, regular way, or, in case no such sale takes place
on such day, the average of the closing bid and asked prices,
regular way, in either case as reported in the principal con-
solidated transaction reporting system with respect to secu-
rities listed or admitted to trading on the New York Stock
Exchange or, if the Rights are not listed or admitted to
trading on the New York Stock Exchange, as reported in the
principal consolidated transaction reporting system with re-
spect to securities listed on the principal national securi-
ties exchange on which the Rights are listed or admitted to
trading or, if the Rights are not listed or admitted to trad-
ing on any national securities exchange, the last quoted
price or, if not so quoted, the average of the high bid and
low asked prices in the over-the-counter market, as reported
by NASDAQ or such other system then in use or, if on any such
-38-
date the Rights are not quoted by any such organization, the
average of the closing bid and asked prices as furnished by a
professional market maker making a market in the Rights se-
lected by the Board of Directors of the Company. If on any
such date no such market maker is making a market in the
Rights, the fair value of the Rights on such date as deter-
mined in good faith by the Board of Directors of the Company
shall be used.
(b) The Company shall not be required to issue
fractions of Preferred Shares (other than fractions which are
integral multiples of one one-hundredth of a Preferred Share)
upon exercise of the Rights or to distribute certificates
which evidence fractional Preferred Shares (other than frac-
tions which are integral multiples of one one-hundredth of a
Preferred Share). Fractions of Preferred Shares in integral
multiples of one one-hundredth of a Preferred Share may, at
the election of the Company, be evidenced by depositary re-
ceipts, pursuant to an appropriate agreement between the Com-
pany and a depositary selected by it; provided that such
agreement shall provide that the holders of such depositary
receipts shall have all the rights, privileges and prefer-
ences to which they are entitled as beneficial owners of the
Preferred Shares represented by such depositary receipts. In
lieu of fractional Preferred Shares that are not integral
-39-
multiples of one one-hundredth of a Preferred Share, the Com-
pany shall pay to the registered holders of Right Certifi-
xxxxx at the time such Rights are exercised as herein pro-
vided an amount in cash equal to the same fraction of the
current market value of one Preferred Share. For the pur-
poses of this Section 14(b), the current market value of a
Preferred Share shall be the closing price of a Preferred
Share (as determined pursuant to the second sentence of Sec-
tion 11(d)(i) hereof) 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 his right to receive any fractional
Rights or any fractional shares upon exercise of a Right (ex-
cept as provided above).
Section 15. Rights of Action. All rights of ac-
tion in respect of this Rights Agreement, excepting the
rights of action given to the Rights Agent under Section 18
hereof, are vested in the respective registered holders of
the Right Certificates (and, prior to the Distribution Date,
the registered holders of the Common Shares); and any regis-
tered holder of any Right Certificate (or, prior to the Dis-
tribution Date, of the Common Shares), without the consent of
the Rights Agent or of the holder of any other Right Certifi-
cate (or, prior to the Distribution Date, of the Common
-40-
Shares), may, in his own behalf and for his own benefit, en-
force, and may institute and maintain any suit, action or
proceeding against the Company to enforce, or otherwise act
in respect of, his right to exercise the Rights evidenced by
such Right Certificate in the manner provided in such Right
Certificate and in this Rights Agreement. Without limiting
the foregoing or any remedies available to the holders of
Rights, it is specifically acknowledged that the holders of
Rights would not have an adequate remedy at law for any
breach of this Rights Agreement and will be entitled to spe-
cific performance of the obligations under, and injunctive
relief against actual or threatened violations of the obliga-
tions of any Person subject to, this Rights Agreement.
Section 16. Agreement of Right Holders. Every
holder of a Right, by accepting the same, consents and agrees
with the Company and the Rights Agent and with every other
holder of a Right that:
(a) prior to the Distribution Date, the Rights
will be transferable only in connection with the transfer of
the Common Shares;
(b) after the Distribution Date, the Right Cer-
tificates 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 in-
strument of transfer; and
-41-
(c) the Company and the Rights Agent may deem and
treat the person in whose name the Right Certificate (or,
prior to the Distribution Date, the associated Common Shares
certificate) is registered as the absolute owner thereof and
of the Rights evidenced thereby (notwithstanding any nota-
tions of ownership or writing on the Right Certificate or the
associated Common Shares certificate made by anyone other
than the Company or the Rights Agent) for all purposes what-
soever, and neither the Company nor the Rights Agent shall be
affected by any notice to the contrary.
Section 17. Right Certificate Holder Not Deemed a
Stockholder. No holder, as such, of any Right Certificate
shall be entitled to vote, receive dividends or be deemed for
any purpose the holder of the Preferred Shares or any other
securities of the Company which may at any time be issuable
on the exercise of the Rights represented thereby, nor shall
anything contained herein or in any Right Certificate be con-
strued to confer upon the holder of any Right Certificate, as
such, any of the rights of a stockholder of the Company or
any right to vote for the election of directors or upon any
matter submitted to stockholders at any meeting thereof, or
to give or withhold consent to any corporate action, or to
receive notice of meetings or other actions affecting stock-
holders (except as provided in Section 25 hereof), or to re-
ceive dividends or subscription rights, or otherwise, until
-42-
the Right or Rights evidenced by such Right Certificate shall
have been exercised in accordance with the provisions hereof.
Section 18. Concerning the Rights Agent. The Com-
pany agrees to pay to the Rights Agent reasonable compensa-
tion for all services rendered by it hereunder and, from time
to time, on demand of the Rights Agent, its reasonable ex-
penses and counsel fees and other disbursements incurred in
the administration and execution of this Rights Agreement and
the exercise and performance of its duties hereunder. The
Company also agrees to indemnify the Rights Agent for, and to
hold it harmless against, any loss, liability, or expense
incurred without negligence, bad faith or willful misconduct
on the part of the Rights Agent, for anything done or omitted
by the Rights Agent in connection with the acceptance and
administration of this Rights Agreement, including the costs
and expenses of defending against any claim of liability in
the premises.
The Rights Agent shall be protected and shall incur
no liability for, or in respect of any action taken, suffered
or omitted by it in connection with, its administration of
this Agreement in reliance upon any Right Certificate or cer-
tificate for the Preferred Shares or Common Shares or for
other securities of the Company, instrument of assignment or
transfer, power of attorney, endorsement, affidavit, letter,
notice, direction, consent, certificate, statement, or other
-43-
paper or document believed by it to be genuine and to be
signed, executed and, where necessary, verified or acknowl-
edged, by the proper person or persons, or otherwise upon the
advice of counsel as set forth in Section 20 hereof.
Section 19. Merger or Consolidation or Change of
Name of Rights Agent. Any corporation into which the Rights
Agent or any successor Rights Agent may be merged or with
which it may be consolidated, or any corporation resulting
from any merger or consolidation to which the Rights Agent or
any successor Rights Agent shall be a party, or any corpora-
tion succeeding to the stock transfer or corporate trust pow-
ers of the Rights Agent or any successor Rights Agent, shall
be the successor to the Rights Agent under this Rights Agree-
ment without the execution or filing of any paper or any fur-
ther act on the part of any of the parties hereto; provided
that such corporation would be eligible for appointment as a
successor Rights Agent under the provisions of Section 21
hereof. In case at the time such successor Rights Agent
shall succeed to the agency created by this Rights Agreement,
any of the Right Certificates shall have been countersigned
but not delivered, any such successor Rights Agent may adopt
the countersignature of the predecessor Rights Agent and de-
liver such Right Certificates so countersigned; and, in case
at that time any of the Right Certificates shall not have
-44-
been countersigned, any successor Rights Agent may counter-
sign such Right Certificates either in the name of the prede-
cessor Rights Agent or in the name of the successor Rights
Agent; and in all such cases such Right Certificates shall
have the full force provided in the Right Certificates and in
this Rights Agreement.
In case at any time the name of the Rights Agent
shall be changed and at such time any of the Right Certifi-
xxxxx shall have been countersigned but not delivered, the
Rights Agent may adopt the countersignature under its prior
name and deliver Right Certificates so countersigned; and in
case at that time any of the Right Certificates shall not
have been countersigned, the Rights Agent may countersign
such Right Certificates either in its prior name or in its
changed name; and in all such cases such Right Certificates
shall have the full force provided in the Right Certificates
and in this Rights Agreement.
Section 20. Duties of Rights Agent. The Rights
Agent undertakes the duties and obligations imposed by this
Agreement upon the following terms and conditions, by all of
which the Company and the holders of Right Certificates, by
their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal coun-
sel (who may be legal counsel for the Company), and the opin-
ion of such counsel shall be full and complete authorization
-45-
and protection to the Rights Agent as to any action taken or
omitted by it in good faith and in accordance with such opin-
ion.
(b) Whenever in the performance of its duties un-
der this Rights Agreement the Rights Agent shall deem it nec-
xxxxxx or desirable that any fact or matter be proved or es-
tablished 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 cer-
tificate signed by any one of the Chairman of the Board, the
Chief Executive Officer, the President, any Vice President,
the Treasurer or the Secretary of the Company and delivered
to the Rights Agent; and such certificate shall be full au-
thorization to the Rights Agent for any action taken or suf-
fered in good faith by it under the provisions of this Rights
Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to
the Company and any other Person only for its own 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 Rights Agreement or in the Right Certificates (except
its countersignature thereof) or be required to verify the
-46-
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 re-
sponsibility 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 Right Certificate (except its countersigna-
ture thereof); nor shall it be responsible for any breach by
the Company of any covenant or condition contained in this
Rights Agreement or in any Right Certificate; nor shall it be
responsible for any change in the exercisability of the
Rights (including the Rights becoming void pursuant to Sec-
tion 11(a)(ii) hereof) or any adjustment in the terms of the
Rights (including the manner, method or amount thereof) pro-
vided for in Section 3, 11, 13, 23 or 24, or the ascertaining
of the existence of facts that would require any such change
or adjustment (except with respect to the exercise of Rights
evidenced by Right Certificates after actual notice that such
change or adjustment is required); nor shall it by any act
hereunder be deemed to make any representation or warranty as
to the authorization or reservation of any Preferred Shares
to be issued pursuant to this Rights Agreement or any Right
Certificate or as to whether any Preferred Shares will, when
issued, be validly authorized and issued, fully paid and non-
assessable.
-47-
(f) The Company agrees that it will perform, ex-
ecute, acknowledge and deliver or cause to be performed, ex-
ecuted, acknowledged and delivered all such further and other
acts, instruments and assurances as may reasonably be re-
quired by the Rights Agent for the carrying out or performing
by the Rights Agent of the provisions of this Rights Agree-
ment.
(g) The Rights Agent is hereby authorized and di-
rected to accept instructions with respect to the performance
of its duties hereunder from any one of the Chairman of the
Board, the Chief Executive Officer, the President, any Vice
President, the Secretary or the Treasurer of the Company, and
to apply to such officers for advice or instructions in con-
nection with its duties, and it shall not be liable for any
action taken or suffered by it in good faith in accordance
with instructions of any such officer or for any delay in
acting while waiting for those instructions.
(h) The Rights Agent and any stockholder, direc-
tor, officer or employee of the Rights Agent may buy, sell or
deal in any of the Rights or other securities of the Company
or become pecuniarily interested in any transaction in which
the Company may be interested, or contract with or lend money
to the Company or otherwise act as fully and freely as though
-48-
it were not Rights Agent under this Rights Agreement. Noth-
ing herein shall preclude the Rights Agent from acting in any
other capacity for the Company or for any other legal entity.
(i) The Rights Agent may execute and exercise any
of the rights or powers hereby vested in it or perform any
duty hereunder either itself or by or through its attorneys
or agents, and the Rights Agent shall not be answerable or
accountable for any act, default, neglect or misconduct of
any such attorneys or agents or for any loss to the Company
resulting from any such act, default, neglect or misconduct,
provided reasonable care was exercised in the selection and
continued employment thereof.
Section 21. Change of Rights Agent. The Rights
Agent or any successor Rights Agent may resign and be dis-
charged from its duties under this Rights Agreement upon 30
days' notice in writing mailed to the Company and to each
transfer agent of the Common Shares or Preferred Shares by
registered or certified mail, and to the holders of the Right
Certificates by first-class mail. The Company may remove the
Rights Agent or any successor Rights Agent upon 30 days' no-
xxxx in writing, mailed to the Rights Agent or successor
Rights Agent, as the case may be, and to each transfer agent
of the Common Shares or Preferred Shares by registered or
certified mail, and to the holders of the Right Certificates
by first-class mail. If the Rights Agent shall resign or be
-49-
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 pe-
riod of 30 days after giving notice of such removal or after
it has been notified in writing of such resignation or inca-
pacity by the resigning or incapacitated Rights Agent or by
the holder of a Right Certificate (who shall, with such no-
xxxx, submit his Right Certificate for inspection by the Com-
pany), then the registered holder of any Right Certificate
may apply to any court of competent jurisdiction for the ap-
pointment of a new Rights Agent. Any successor Rights Agent,
whether appointed by the Company or by such a court, shall be
a corporation organized and doing business under the laws of
the United States or of the State of New York (or of any
other state of the United States so long as such corporation
is authorized to do business as a banking institution in the
State of New York), in good standing, having an office in the
State of New York, which is authorized under such laws to
exercise corporate trust or stock transfer powers and is sub-
ject to supervision or examination by federal or state au-
thority and which has at the time of its appointment as
Rights Agent a combined capital and surplus of at least $50
million. After appointment, the successor Rights Agent shall
be vested with the same powers, rights, duties and responsi-
bilities as if it had been originally named as Rights Agent
without further act or deed; but the predecessor Rights Agent
-50-
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 neces-
sary for the purpose. Not later than the effective date of
any such appointment the Company shall file notice thereof in
writing with the predecessor Rights Agent and each transfer
agent of the Common Shares or Preferred Shares, and mail a
notice thereof in writing to the registered holders of the
Right Certificates. Failure to give any notice provided for
in this Section 21, however, or any defect therein, shall not
affect the legality or validity of the resignation or removal
of the Rights Agent or the appointment of the successor
Rights Agent, as the case may be.
Section 22. Issuance of New Right Certificates.
Notwithstanding any of the provisions of this Rights Agree-
ment or of the Rights to the contrary, the Company may, at
its option, issue new Right Certificates evidencing Rights in
such form as may be approved by the Board of Directors of the
Company to reflect any adjustment or change in the Purchase
Price and the number or kind or class of shares or other se-
curities or property purchasable under the Right Certificates
made in accordance with the provisions of this Rights Agree-
ment.
Section 23. Redemption. (a) The Board of Direc-
tors of the Company may, at its option, at any time prior to
-51-
such time as any Person becomes an Acquiring Person, redeem
all but not less than all the then outstanding Rights at a
redemption price of $.01 per Right, appropriately adjusted to
reflect any stock split, stock dividend or similar transac-
tion occurring after the Record Date (such redemption price
being hereinafter referred to as the "Redemption Price").
The redemption of the Rights by the Board of Directors of the
Company may be made effective at such time, on such basis and
with such conditions as the Board of Directors of the Company
in its sole discretion may establish.
(b) Immediately upon the action of the Board of
Directors of the Company ordering the redemption of the
Rights pursuant to paragraph (a) of this Section 23, and
without any further action and without any notice, the right
to exercise the Rights will terminate and the only right
thereafter of the holders of Rights shall be to receive the
Redemption Price. The Company shall promptly give public
notice of any such redemption; provided, however, that the
failure to give, or any defect in, any such notice shall not
affect the validity of such redemption. Within 10 days after
such action of the Board of Directors ordering the redemption
of the Rights, the Company shall mail a notice of redemption
to all the holders of the then outstanding Rights at their
last addresses as they appear upon the registry books of the
Rights Agent or, prior to the Distribution Date, on the reg-
istry books of the transfer agent for the Common Shares. Any
-52-
notice which is mailed in the manner herein provided shall be
deemed given, whether or not the holder receives the notice.
Each such notice of redemption will state the method by which
the payment of the Redemption Price will be made. Neither
the Company nor any of its Affiliates or Associates may re-
deem, acquire or purchase for value any Rights at any time in
any manner other than that specifically set forth in this
Section 23 or in Section 24 hereof, and other than in connec-
tion with the purchase of Common Shares prior to the Distri-
bution Date.
Section 24. Exchange. (a) The Board of Directors
of the Company may, at its option, at any time after any Per-
son becomes an Acquiring Person, exchange all or part of the
then outstanding and exercisable Rights (which shall not in-
clude Rights that have become void pursuant to the provisions
of Section 11(a)(ii) hereof) for Common Shares at an exchange
ratio of one Common Share per Right, appropriately adjusted
to reflect any stock split, stock dividend or similar trans-
action occurring after the Record Date (such exchange ratio
being hereinafter referred to as the "Exchange Ratio"). Not-
withstanding the foregoing, the Board of Directors of the
Company shall not be empowered to effect such exchange at any
time after any Person (other than the Company, any Subsidiary
of the Company, any employee benefit plan of the Company or
any such Subsidiary, or any entity holding Common Shares for
or pursuant to the terms of any such plan), together with all
-53-
Affiliates and Associates of such Person, after the Record
Date becomes the Beneficial Owner of 50% or more of the Com-
mon Shares then outstanding.
(b) Immediately upon the action of the Board of
Directors of the Company ordering the exchange of any Rights
pursuant to paragraph (a) of this Section 24 and without any
further action and without any notice, the right to exercise
such Rights shall terminate and the only right thereafter of
a holder of such Rights shall be to receive that number of
Common Shares equal to the number of such Rights held by such
holder multiplied by the Exchange Ratio. The Company shall
promptly give public notice of any such exchange; provided,
however, that the failure to give, or any defect in, such
notice shall not affect the validity of such exchange. The
Company promptly shall mail a notice of any such exchange to
all of the holders of such Rights at their last addresses as
they appear upon the registry books of the Rights Agent. Any
notice which is mailed in the manner herein provided shall be
deemed given, whether or not the holder receives the notice.
Each such notice of exchange will state the method by which
the exchange of the Common Shares for Rights will be effected
and, in the event of any partial exchange, the number of
Rights which will be exchanged. Any partial exchange shall
be effected pro rata based on the number of Rights (other
than Rights which have become void pursuant to the provisions
of Section 11(a)(ii) hereof) held by each holder of Rights.
-54-
(c) In the event that there shall not be suf-
ficient Common Shares issued but not outstanding or autho-
rized but unissued to permit any exchange of Rights as con-
templated in accordance with this Section 24, the Company
shall take all such action as may be necessary to authorize
additional Common Shares for issuance upon exchange of the
Rights. In the event the Company shall, after good faith
effort, be unable to take all such action as may be necessary
to authorize such additional Common Shares, the Company shall
substitute, for each Common Share that would otherwise be
issuable upon exchange of a Right, a number of Preferred
Shares or fraction thereof such that the current per share
market price of one Preferred Share multiplied by such number
or fraction is equal to the current per share market price of
one Common Share as of the date of issuance of such Preferred
Shares or fraction thereof.
(d) The Company shall not be required to issue
fractions of Common Shares or to distribute certificates
which evidence fractional Common Shares. In lieu of such
fractional Common Shares, the Company shall pay to the regis-
tered holders of the Right Certificates with regard to which
such fractional Common Shares would otherwise be issuable an
amount in cash equal to the same fraction of the current mar-
ket value of a whole Common Share. For the purposes of this
paragraph (d), the current market value of a whole Common
-55-
Share shall be the closing price of a Common Share (as deter-
mined pursuant to the second sentence of Section 11(d)(i)
hereof) for the Trading Day immediately prior to the date of
exchange pursuant to this Section 24.
Section 25. Notice of Certain Events. (a) In
case at any time after the Record Date the Company shall
propose (i) to pay any dividend payable in stock of any class
to the holders of its Preferred Shares or to make any other
distribution to the holders of its Preferred Shares (other
than a regular quarterly cash dividend), (ii) to offer to the
holders of its Preferred Shares rights or warrants to
subscribe for or to purchase any additional Preferred Shares
or shares of stock of any class or any other securities,
rights or options, (iii) to effect any reclassification of
its Preferred Shares (other than a reclassification involving
only the subdivision of outstanding Preferred Shares), (iv)
to effect any consolidation or merger into or with, or to
effect any sale or other transfer (or to permit one or more
of its Subsidiaries to effect any sale or other transfer), in
one or more transactions, of 50% or more of the assets or
earning power of the Company and its Subsidiaries (taken as a
whole) to, any other Person, (v) to effect the liquidation,
dissolution or winding up of the Company, or (vi) to declare
or pay any dividend on the Common Shares payable in Common
Shares or to effect a subdivision, combination or
consolidation of the
-56-
Common Shares (by reclassification or otherwise than by pay-
ment of dividends in Common Shares), then, in each such case,
the Company shall give to each holder of a Right Certificate,
in accordance with Section 26 hereof, a notice of such pro-
posed action, which shall specify the record date for the
purposes of such stock dividend, or distribution of rights or
warrants, or the date on which such reclassification, con-
solidation, merger, sale, transfer, liquidation, dissolution
or winding up is to take place and the date of participation
therein by the holders of the Common Shares and/or Preferred
Shares, if any such date is to be fixed, and such notice
shall be so given in the case of any action covered by clause
(i) or (ii) above at least 10 days prior to the record date
for determining holders of the Preferred Shares for purposes
of such action, and in the case of any such other action, at
least 10 days prior to the date of the taking of such pro-
posed action or the date of participation therein by the
holders of the Common Shares and/or Preferred Shares, which-
ever shall be the earlier.
(b) In case the event set forth in Section
11(a)(ii) hereof shall occur, then the Company shall as soon
as practicable thereafter give to each holder of a Right Cer-
tificate, in accordance with Section 26 hereof, a notice of
the occurrence of such event, which notice shall describe
such event and the consequences of such event to holders of
Rights under Section 11(a)(ii) hereof.
-57-
Section 26. Notices. Notices or demands autho-
rized by this Rights Agreement to be given or made by the
Rights Agent or by the holder of any Right Certificate to or
on the Company shall be sufficiently given or made if sent by
first-class mail, postage prepaid, addressed (until another
address is filed in writing with the Rights Agent) as fol-
lows:
Xxxxxx International, Inc.
000 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Corporate Secretary
Subject to the provisions of Section 21 hereof, any notice or
demand authorized by this Rights Agreement to be given or
made by the Company or by the holder of any Right Certificate
to or on the Rights Agent shall be sufficiently given or made
if sent by first-class mail, postage prepaid, addressed (un-
til another address is filed in writing with the Company) as
follows:
First Chicago Trust Company of New York
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Tenders & Exchanges Administration
Notices or demands authorized by this Rights Agreement to be
given or made by the Company or the Rights Agent to the
holder of any Right Certificate shall be sufficiently given
-58-
or made if sent by first-class mail, postage prepaid, ad-
dressed to such holder at the address of such holder as shown
on the registry books of the Company.
Section 27. Supplements and Amendments. The Com-
pany may from time to time supplement or amend this Agreement
without the approval of any holders of Right Certificates in
order to cure any ambiguity, to correct or supplement any
provision contained herein which may be defective or incon-
sistent with any other provisions herein, or to make any
other provisions with respect to the Rights which the Company
may deem necessary or desirable, any such supplement or
amendment to be evidenced by a writing signed by the Company
and the Rights Agent; provided, however, that from and after
such time as any Person becomes an Acquiring Person, this
Rights Agreement shall not be amended in any manner which
would adversely affect the interests of the holders of
Rights. Without limiting the foregoing, the Company may at
any time prior to such time as any Person becomes an Acquir-
ing Person amend this Rights Agreement to lower the thresh-
olds set forth in Sections 1(a) and 3(a) to not less than the
greater of (i) the sum of .001% and the largest percentage of
the outstanding Common Shares then known by the Company to be
beneficially owned by any Person (other than the Company, any
Subsidiary of the Company, any employee benefit plan of the
-59-
Company or any Subsidiary of the Company, or any entity hold-
ing Common Shares for or pursuant to the terms of any such
plan) and (ii) 10%.
Section 28. Successors. All the covenants and pro-
visions of this Rights Agreement by or for the benefit of the
Company or the Rights Agent shall bind and inure to the ben-
efit of their respective successors and assigns hereunder.
Section 29. Benefits of this Rights Agreement.
Nothing in this Rights Agreement shall be construed to give
to any Person other than the Company, the Rights Agent and
the registered holders of the Right Certificates (and, prior
to the Distribution Date, the Common Shares) any legal or
equitable right, remedy or claim under this Rights Agreement;
but this Rights Agreement shall be for the sole and exclusive
benefit of the Company, the Rights Agent and the registered
holders of the Right Certificates (and, prior to the Distri-
bution Date, the Common Shares).
Section 30. Severability. If any term, provision,
covenant or restriction of this Rights Agreement is held by a
court of competent jurisdiction or other authority to be in-
valid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Rights Agree-
ment shall remain in full force and effect and shall in no
way be affected, impaired or invalidated.
-60-
Section 31. Governing Law. This Rights Agreement
and each Right Certificate issued hereunder shall be deemed
to be a contract made under the laws of the State of Indiana
and for all purposes shall be governed by and construed in
accordance with the laws of such State applicable to con-
tracts to be made and performed entirely within such State.
Section 32. Counterparts. This Rights Agreement
may be executed in any number of counterparts and each of
such counterparts shall for all purposes be deemed to be an
original, and all such counterparts shall together constitute
but one and the same instrument.
Section 33. Descriptive Headings. Descriptive
headings of the several Sections of this Rights Agreement are
inserted for convenience only and shall not control or affect
the meaning or construction of any of the provisions hereof.
-61-
IN WITNESS WHEREOF, the parties hereto have caused
this Rights Agreement to be duly executed and attested, all
as of the day and year first above written.
Attest: NEW XXXXXX INTERNATIONAL, INC.
By /s/ P. Xxxxxxx Xxxxxx By /s/ Xxxxxxx X. Xxxxxxxxx
Name: P. Xxxxxxx Xxxxxx Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President Title: Vice President and General
and Secretary Counsel
Attest: FIRST CHICAGO TRUST COMPANY OF
NEW YORK
By /s/ Xxxxxxx X. Xxxx By /s/ Xxxxx Xxxxxxx
Name: Xxxxxxx X. Xxxx Name: Xxxxx Xxxxxxx
Title: Assistant Vice Title: Assistant Vice President
President
-62-
Exhibit A
Form of Right Certificate
Certificate No. R- Rights
NOT EXERCISABLE AFTER , 2007 OR EARLIER IF
REDEMPTION OR EXCHANGE OCCURS. THE RIGHTS ARE SUB-
JECT TO REDEMPTION AT $.01 PER RIGHT AND TO EXCHANGE
ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT.
Right Certificate
XXXXXX INTERNATIONAL, INC.
This certifies that , or regis-
tered 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 , 1997 (the
"Rights Agreement"), between Xxxxxx International, Inc., an
Indiana corporation (formerly New Xxxxxx International, Inc.)
(the "Company"), and First Chicago Trust Company of New York,
a New York corporation (the "Rights Agent"), to purchase from
the Company at any time after the Distribution Date (as such
term is defined in the Rights Agreement) and prior to
5:00 P.M., New York time, on , 2007 at the princi-
pal office of the Rights Agent, or at the office of its suc-
cessor as Rights Agent, one one-hundredth of a fully paid
non-assessable share of Series A Junior Participating Pre-
ferred Stock, par value $1.00 per share, of the Company (the
"Preferred Shares"), at a purchase price of $___ per one
one-hundredth of a Preferred Share (the "Purchase Price"),
upon presentation and surrender of this Right Certificate
with the Form of Election to Purchase duly executed. The
number of Rights evidenced by this Right Certificate (and the
number of one one-hundredths of a Preferred Share which may
be purchased upon exercise hereof) set forth above, and the
Purchase Price set forth above, are the number and Purchase
Price as of , 1997, based on the Preferred Shares
as constituted at such date. As provided in the Rights
Agreement, the Purchase Price and the number of one one--
hundredths of a Preferred Share which may be purchased upon
the exercise of the Rights evidenced by this Right Certifi-
cate are subject to modification and adjustment upon the hap-
pening of certain events.
This Right Certificate is subject to all of the
terms, provisions and conditions of the Rights Agreement,
which terms, provisions and conditions are hereby incorpo-
rated herein by reference and made a part hereof and to which
Rights Agreement reference is hereby made for a full descrip-
tion of the rights, limitations of rights, obligations, du-
ties and immunities hereunder of the Rights Agent, the Com-
pany and the holders of the Right Certificates. Copies of
the Rights Agreement are on file at the principal executive
offices of the Company and the offices of the Rights Agent.
This Right Certificate, with or without other Right
Certificates, upon surrender at the principal office of the
Rights Agent, may be exchanged for another Right Certificate
or Right Certificates of like tenor and date evidencing
Rights entitling the holder to purchase a like aggregate num-
ber of Preferred Shares as the Rights evidenced by the Right
Certificate or Right Certificates surrendered shall have en-
titled such holder to purchase. If this Right Certificate
shall be exercised in part, the holder shall be entitled to
receive upon surrender hereof another Right Certificate or
Right Certificates for the number of whole Rights not exer-
cised.
Subject to the provisions of the Rights Agreement,
the Rights evidenced by this Right Certificate (i) may be
redeemed by the Company at a redemption price of $.01 per
Right or (ii) may be exchanged in whole or in part for Pre-
ferred Shares or shares of the Company's Common Stock, par
value $1.00 per share.
No fractional Preferred Shares will be issued upon
the exercise of any Right or Rights evidenced hereby (other
than fractions which are integral multiples of one one- hun-
dredth of a Preferred Share, which may, at the election of
the Company, be evidenced by depositary receipts), but in
lieu thereof a cash payment will be made, as provided in the
Rights Agreement.
No holder of this Right Certificate shall be en-
titled to vote or receive dividends or be deemed for any pur-
pose the holder of the Preferred Shares or of any other secu-
rities 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 direc-
tors or upon any matter submitted to stockholders at any
A-1
meeting thereof, or to give or withhold consent to any corpo-
rate action, or to receive notice of meetings or other ac-
tions 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 Right Certificate shall have been exercised as provided
in the Rights Agreement.
This Right Certificate shall not be valid or obliga-
tory for any purpose until it shall have been countersigned
by the Rights Agent.
WITNESS the facsimile signature of the proper offic-
ers of the Company and its corporate seal. Dated as of
, .
ATTEST: XXXXXX INTERNATIONAL, INC.
By
Name: Name:
Title: Title:
Countersigned:
FIRST CHICAGO TRUST COMPANY
OF NEW YORK
By
Name:
Title:
A-2
Form of Reverse Side of Right Certificate
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Right Certificate.)
FOR VALUE RECEIVED
hereby sells, assigns and transfers unto
(Please print name and address of transferee)
this Right Certificate, together with all right, title and
interest therein, and does hereby irrevocably constitute and
appoint Attorney, to transfer the within
Right Certificate on the books of the within-named Company,
with full power of substitution.
Dated: ,
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a
registered national securities exchange, a member of the Na-
tional Association of Securities Dealers, Inc., or a com-
mercial bank or trust company having an office or correspon-
dent in the United States.
------------------------------------------------------------
A-3
The undersigned hereby certifies that the Rights
evidenced by this Right Certificate are not beneficially
owned by an Acquiring Person or an Affiliate or Associate
thereof (as defined in the Rights Agreement).
Signature
-------------------------------------------------------------
A-4
Form of Reverse Side of Right Certificate -- continued
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to exercise
Rights represented by the Right Certificate.)
To: XXXXXX INTERNATIONAL, INC.
The undersigned hereby irrevocably elects to exer-
cise Rights represented by this
Right Certificate to purchase the Preferred Shares issuable
upon the exercise of such Rights and requests that certif-
icates for such Preferred 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 evi-
denced by this Right Certificate, a new Right Certificate for
the balance remaining of such Rights shall be registered in
the name of and delivered to:
Please insert social security
or other identifying number
(Please print name and address)
Dated: ,
Signature
A-5
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a
registered national securities exchange, a member of the Na-
tional Association of Securities Dealers, Inc., or a com-
mercial bank or trust company having an office or correspon-
dent in the United States.
A-6
Form of Reverse Side of Right Certificate -- continued
-------------------------------------------------------------
The undersigned hereby certifies that the Rights
evidenced by this Right Certificate are not beneficially
owned by an Acquiring Person or an Affiliate or Associate
thereof (as defined in the Rights Agreement).
Signature
-------------------------------------------------------------
NOTICE
The signature in the Form of Assignment or Form of
Election to Purchase, as the case may be, must conform to the
name as written upon the face of this Right Certificate in
every particular, without alteration or enlargement or any
change whatsoever.
In the event the certification set forth above in
the Form of Assignment or the Form of Election to Purchase,
as the case may be, is not completed, the Company and the
Rights Agent will deem the beneficial owner of the Rights
evidenced by this Right Certificate to be an Acquiring Person
or an Affiliate or Associate thereof (as defined in the
Rights Agreement) and such Assignment or Election to Purchase
will not be honored.
A-7
