EXHIBIT 4.6
SECOND AMENDMENT TO RIGHTS AGREEMENT
THIS SECOND AMENDMENT TO RIGHTS AGREEMENT, dated as of December 31,
2001, is entered into between USX Corporation, a Delaware corporation, to be
renamed "Marathon Oil Corporation" (the "Company" or "Marathon Oil
Corporation"), and National City Bank, as Rights Agent (the "Successor Rights
Agent" or "National City Bank").
WHEREAS, the Company and Mellon Investor Services LLC are parties to
that certain Rights Agreement (the "Rights Agreement"), dated as of September
28, 1999, as amended on July 2, 2001 (capitalized terms used but not defined
herein shall have the meanings ascribed to them in the Rights Agreement); and
WHEREAS, on July 31, 2001, the Company entered into an Agreement and
Plan of Reorganization (the "Plan of Reorganization"), by and between the
Company and United States Steel LLC, a Delaware limited liability company and a
wholly owned subsidiary of the Company, to be converted into a Delaware
corporation named "United States Steel Corporation" ("United States Steel");
pursuant to the Plan of Reorganization, USX Merger Corporation, a Delaware
corporation and a wholly owned subsidiary of the Company, shall be merged (the
"Separation Merger") with and into the Company, and, as a result of the
Separation Merger, the assets and businesses of the U. S. Steel Group of the
Company shall be owned and operated by United States Steel, an independent
company, wholly owned by the holders of the then outstanding shares of USX-U. S.
Steel Group Common Stockholders (the "Separation"); and
WHEREAS, the Board of Directors of the Company has determined it to be
in the best interests of the Company and its stockholders to amend the Rights
Agreement pursuant to Section 21 thereof, in connection with the Separation, to
appoint National City Bank as successor rights agent to Mellon Investor Services
LLC (the "Predecessor Rights Agent)"; and
WHEREAS, in connection with the Separation and pursuant to Section
4.5(b) of the Plan of Reorganization, it is desirable for the Company to amend
the Rights Agreement to provide that the Steel Rights shall expire at the
effective time of the Separation Merger; and
WHEREAS, the Company and the Rights Agent desire to amend the Rights
Agreement in accordance with the provisions of Section 26 thereof in connection
with the Separation to provide for the expiration of the Steel Rights, in
accordance with the terms hereof.
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements set forth herein, the parties hereto agree as follows:
1. Effective at the effective time of the Separation Merger, and
without any further action by the Company or the Rights Agent, the Steel Rights
shall expire and shall be null and void and of no further force or effect.
2. From and after the effective time of the Separation Merger, all
references in the Rights Agreement to USX Corporation shall be deemed to be
references to "Marathon Oil Corporation".
3. From and after the effective time of the Separation Merger, all
references in the Rights Agreement to Marathon Stock and Voting Stock shall be
deemed to be references to the common stock, par value $1.00 per share, of
Marathon Oil Corporation.
4. From and after the effective time of the Separation Merger, National
City Bank shall succeed the Predecessor Rights Agent and be the Successor Rights
Agent in accordance with Sections 21 and 27 of the Rights Agreement.
5. This Amendment shall be deemed to be a contract made under the laws
of the State of Delaware and for all purposes shall be governed by and construed
in accordance with the laws of such State, without regard to the principles of
conflicts of laws thereof.
6. This Amendment may be executed in any number of counterparts. It
shall not be necessary that the signature of or on behalf of each party appears
on each counterpart, but it shall be sufficient that the signature of or on
behalf of each party appears on one or more of the counterparts. All
counterparts shall collectively constitute a single agreement.
7. Except as expressly set forth herein, this Amendment shall not by
implication or otherwise alter, modify, amend or in any way affect any of the
terms, conditions, obligations, covenants or agreements contained in the Rights
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Agreement, all of which are ratified and affirmed in all respects and shall
continue in full force and effect.
8. If any term, provision, covenant or restriction of this Amendment
is held by a court of competent jurisdiction or other authority to be invalid,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Amendment and of the Rights Agreement, shall remain in full
force and effect and shall in no way be affected, impaired or invalidated.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and attested, all as of the date and year first above written.
USX CORPORATION
(to be renamed Marathon Oil Corporation)
By: /s/ X. X. Xxxxxxx
--------------------------------------
X. X. Xxxxxxx
Vice President - Investor Relations
NATIONAL CITY BANK, as Rights Agent
By: /s/ V. W. XxXxxxx
--------------------------------------
Xxxxxx XxXxxxx
Vice President
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FIRST AMENDMENT TO RIGHTS AGREEMENT
THIS FIRST AMENDMENT TO RIGHTS AGREEMENT, dated as of July 2, 2001, is
entered into between USX Corporation, a Delaware corporation (the "Company"),
USX HoldCo, Inc., a Delaware corporation and a wholly owned subsidiary of the
Company, to be renamed "USX Corporation" ("HoldCo") and Mellon Investor Services
LLC (formerly known as ChaseMellon Shareholder Services, L.L.C.), as Rights
Agent (the "Rights Agent").
WHEREAS, the Company and the Rights Agent are parties to that certain
Rights Agreement (the "Rights Agreement"), dated as of September 28, 1999
(capitalized terms used but not defined herein shall have the meanings ascribed
to them in the Rights Agreement);
WHEREAS, the Company is effecting a holding company reorganization
whereby the Company shall merge with and into United States Steel LLC, a
Delaware limited liability company and a wholly owned subsidiary of HoldCo (the
"HoldCo Merger"), and, as a result of the HoldCo Merger, HoldCo shall become a
holding company wholly owned by the stockholders of the Company and shall own
all of the equity of United States Steel LLC and Marathon Oil Company;
WHEREAS, in connection with the HoldCo Merger, it is desirable for the
Company to assign to HoldCo all of the Company's rights and obligations under
the Rights Agreement and for HoldCo to assume and agree to perform all of the
Company's obligations under the Rights Agreement; and
WHEREAS, the Company, HoldCo and the Rights Agent desire to amend the
Rights Agreement in accordance with the provisions of Section 26 thereof in
connection with the HoldCo Merger to effect such assignment to and assumption by
HoldCo of the Rights Agreement, in accordance with the terms hereof.
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements set forth herein, the parties hereto agree as follows:
1. Effective at the effective time of the HoldCo Merger, the Company
hereby assigns to HoldCo all of its rights and obligations under the Rights
Agreement, and HoldCo hereby accepts such assignment and assumes and agrees to
perform and discharge when due all of the Company's obligations under the Rights
Agreement. From and after the effective time of the HoldCo Merger, all
references in the Rights Agreement to the Company shall be deemed to be
references to HoldCo and all references to USX-U.S. Steel Group Common Stock of
the Company, USX Marathon Group Common Stock of the Company and Preferred Stock
of the Company shall be deemed to be USX-U.S. Steel Group Common Stock of
HoldCo, USX Marathon Group Common Stock of HoldCo and Preferred Stock of HoldCo,
respectively.
2. The first sentence of Section 2 of the Rights Agreement is
hereby deleted and replaced with the following:
"The Company hereby appoints the Rights Agent to act as agent for the
Company in accordance with the terms and conditions hereof, and the Rights Agent
hereby accepts such appointment. The Company may from time to time appoint such
Co-Rights Agents as it may deem necessary or desirable."
3. This Amendment shall be deemed to be a contract made under the laws
of the State of Delaware and for all purposes shall be governed by and construed
in accordance with the laws of such State, without regard to the principles of
conflicts of laws thereof.
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4. This Amendment may be executed in any number of counterparts. It
shall not be necessary that the signature of or on behalf of each party appears
on each counterpart, but it shall be sufficient that the signature of or on
behalf of each party appears on one or more of the counterparts. All
counterparts shall collectively constitute a single agreement.
5. Except as expressly set forth herein, this Amendment shall not by
implication or otherwise alter, modify, amend or in any way affect any of the
terms, conditions, obligations, covenants or agreements contained in the Rights
Agreement, all of which are ratified and affirmed in all respects and shall
continue in full force and effect.
6. If any term, provision, covenant or restriction of this Amendment is
held by a court of competent jurisdiction or other authority to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Amendment and of the Rights Agreement, shall remain in full
force and effect and shall in no way be affected, impaired or invalidated.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and attested, all as of the date and year first
above written.
USX CORPORATION
By: /s/ E. F. Guna
-----------------------------------------
Name: E. F. Guna
Title: Vice President & Treasurer
USX HOLDCO, INC.
By: /s/ X. X. Xxxxxxx
-----------------------------------------
Name: X. X. Xxxxxxx
Title: President
MELLON INVESTOR SERVICES LLC
(formerly known as CHASEMELLON SHAREHOLDER
SERVICES, L.L.C.) as Rights Agent
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
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USX CORPORATION
and
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
Rights Agent
Rights Agreement,
Dated as of September 28, 1999
TABLE OF CONTENTS
Section 1. Certain Definitions ................................. 2
Section 2. Appointment of Rights Agent ......................... 6
Section 3. Issue of Rights Certificates ........................ 6
Section 4. Form of Rights Certificates ......................... 8
Section 5. Countersignature and Registration ................... 9
Section 6. Transfer, Split Up, Combination and Exchange
of Rights Certificates; Mutilated, Destroyed,
Lost or Stolen Rights Certificates .................. 9
Section 7. Exercise of Rights; Purchase Price; Expiration
Date of Rights ......................................10
Section 8. Cancellation and Destruction of Rights
Certificates ....................................... 12
Section 9. Reservation and Availability of Capital Stock ...... 12
Section 10. Preferred Stock Record Date ........................ 13
Section 11. Adjustment of Purchase Price, Number and
Kind of Shares or Number of Rights ................. 14
Section 12. Certificate of Adjusted Purchase Price or
Number of Shares ................................... 22
Section 13. Consolidation, Merger or Sale or Transfer
of Assets or Earning Power ......................... 22
Section 14. Fractional Rights and Fractional Shares ............ 24
Section 15. Rights of Action ................................... 25
Section 16. Agreement of Rights Holders ........................ 25
Section 17. Rights Certificate Holder Not Deemed a
Stockholder ........................................ 26
Section 18. Concerning the Rights Agent ........................ 26
Section 19. Merger or Consolidation or Change of Name of Rights
Agent .............................................. 27
Section 20. Duties of Rights Agent ............................. 27
Section 21. Change of Rights Agent ............................. 29
Section 22. Issuance of New Rights Certificates ................ 30
Section 23. Redemption and Termination ......................... 30
Section 24. Notice of Certain Events ........................... 31
Section 25. Notices ............................................ 31
Section 26. Supplements and Amendments ......................... 32
Section 27. Successors ......................................... 32
Section 28. Determinations and Actions by the
Board of Directors, etc. ........................... 32
Section 29. Exchange ........................................... 33
Section 30. Benefits of this Agreement ......................... 34
Section 31. Severability ....................................... 34
Section 32. Governing Law ...................................... 35
Section 33. Counterparts ....................................... 35
Section 34. Descriptive Headings ............................... 35
RIGHTS AGREEMENT
RIGHTS AGREEMENT, dated as of September 28, 1999 (the "Agreement"),
between USX Corporation, a Delaware corporation (the "Company"), and
ChaseMellon Shareholder Services, L.L.C., a New Jersey limited liability
company (the "Rights Agent").
WITNESSETH
WHEREAS, the Board of Directors of the Company (the "Board of Directors")
heretofore authorized the Rights Agreement, originally dated as of October 10,
1989 and as subsequently amended (the "Original Rights Agreement");
WHEREAS, on September 28, 1999, the Board of Directors determined it
desirable and in the best interests of the Company and its stockholders for the
Company to extend the benefits afforded by the Original Agreement and to
implement such extension by executing this Agreement;
WHEREAS, on September 28, 1999 (the "Rights Dividend Declaration Date"),
the Board of Directors authorized and declared a dividend distribution of one
USX-U.S. Steel Group Right (a "Steel Right") for each share of Steel Stock (as
defined herein) outstanding upon the close of business on October 9, 1999 (the
"Record Date"), and has authorized the issuance of one Steel Right (as such
number may hereinafter be adjusted pursuant to the provisions of Section 11(p)
hereof) for each share of Steel Stock issued (whether as an original issuance
or from the Company's treasury) between the Record Date and the Distribution
Date (as hereinafter defined) and in certain other circumstances provided
herein;
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WHEREAS, on the Rights Dividend Declaration Date, the Board of Directors
authorized and declared a dividend distribution of one USX- Marathon Group
Right (a "Marathon Right") for each share of Marathon Stock (as defined herein)
outstanding upon the close of business on the Record Date, and has authorized
the issuance of one Marathon Right (as such number may hereinafter be adjusted
pursuant to the provisions of Section 11(p) hereof) for each share of Marathon
Stock issued (whether as an original issuance or from the Company's treasury)
between the Record Date and the Distribution Date and in certain other
circumstances provided herein; and
WHEREAS, each Marathon Right and Steel Right (together, the "Rights")
initially represent the right to purchase one one-hundredth of a share of
Series A Junior Preferred Stock of the Company, upon the terms and subject to
the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein set forth, the parties hereby agree as follows:
Section 1. Certain Definitions. For purposes of this
Agreement, the following terms have the meanings indicated:
(a) "Acquiring Person" shall mean any Person who or which,
together with any of its Affiliates and Associates, shall be the Beneficial
Owner of shares of Voting Stock representing 15% or more of the outstanding
Voting Power of the Company, but shall not include (i) the Company, any
Subsidiary of the Company, any employee benefit plan of the Company or of any
Subsidiary of the Company, or any Person or entity organized, appointed or
established by the Company for or pursuant to the terms of any such plan, (ii)
any Person whose ownership of shares of Voting Stock representing 15% or more
of the outstanding Voting Power of the Company results solely from the
Company's calculation from time to time of the relative voting rights of the
Marathon Stock and Steel Stock, unless and until such Person, after becoming
aware that such Person has become the Beneficial Owner of fifteen percent (15%)
or more of the outstanding shares of Voting Stock, acquires Beneficial
Ownership of additional shares of Voting Stock representing one percent (1%) or
more of the shares of Voting Stock then outstanding, (iii) any Person who
becomes the Beneficial Owner of shares representing fifteen percent (15%) or
more of the outstanding Voting Power of the Company solely as a result of a
reduction in the number of shares of Voting Stock outstanding due to the
repurchase of shares of Voting Stock by the Company, unless and until such
Person, after becoming aware that such Person has become the Beneficial Owner
of fifteen percent (15%) or more of the then outstanding shares of Voting
Stock, acquires Beneficial Ownership of additional shares of Voting Stock
representing one percent (1%) or more of the shares of Voting Stock then
outstanding, or (iv) any such Person who has reported or is required to report
such ownership (but less than twenty percent (20%)) on Schedule 13G under the
Securities Exchange Act of 1934, as amended and in effect on the date of the
Agreement (the "Exchange Act") (or any comparable or successor report) or on
Schedule 13D under the Exchange Act (or any comparable or successor report)
which Schedule 13D does not state any intention to or reserve the right to
control or influence the management or policies of the Company or engage in any
of the actions specified in Item 4 of such schedule (other than the disposition
of the Voting Stock) and, within ten Business Days of being requested by the
Company to advise it regarding the same, certifies to the Company that such
Person acquired shares of Voting Stock in excess of 14.9% inadvertently or
without knowledge of the terms of the Rights and who, together with all
Affiliates and Associates, thereafter does not acquire additional shares of
Voting Stock while remaining the Beneficial Owner of 15% or more of the shares
of Voting Stock then outstanding; provided, however, that if the Person
requested to so certify fails to do so within ten Business Days, then such
Person shall become an Acquiring Person immediately after such ten Business Day
period.
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(b) "Act" shall have the meaning set forth in Section 9(c)
hereof.
(c) "Adjustment Shares" shall have the meaning set forth in
Section 11(a)(ii) hereof.
(d) "Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Exchange Act.
(e) "Agreement" shall have the meaning set forth in the
recitals to this Agreement.
(f) A Person shall be deemed the "Beneficial Owner" of, and
shall be deemed to "beneficially own," any securities
(i) which such Person or any of such Person's Affiliates or
Associates, directly or indirectly, has the right to acquire (whether such
right is exercisable immediately or only after the passage of time)
pursuant to any agreement, arrangement or understanding (whether or not in
writing) or upon the exercise of conversion rights, exchange rights,
rights, warrants or options, or otherwise; provided, however, that a
Person shall not be deemed the "Beneficial Owner" of, or to "beneficially
own," (A) securities tendered pursuant to a tender or exchange offer made
by such Person or any of such Person's Affiliates or Associates until such
tendered securities are accepted for purchase or exchange, (B) securities
issuable upon exercise of Rights at any time prior to the occurrence of a
Triggering Event, or (C) securities issuable upon exercise of Rights from
and after the occurrence of a Triggering Event which Rights were acquired
by such Person or any of such Person's Affiliates or Associates prior to
the Distribution Date or pursuant to Section 3(a) or Section 22 hereof
(the "Original Rights") or pursuant to Section 11(i) hereof in connection
with an adjustment made with respect to any Original Rights;
(ii) which such Person or any of such Person's Affiliates
or Associates, directly or indirectly, has the right to vote or dispose of
or has "beneficial ownership" of (as determined pursuant to Rule 13d-3 of
the General Rules and Regulations under the Exchange Act), including
pursuant to any agreement, arrangement or understanding, whether or not in
writing; provided, however, that a Person shall not be deemed the
"Beneficial Owner" of, or to "beneficially own," any security under this
subparagraph (ii) as a result of an agreement, arrangement or
understanding to vote such security if such agreement, arrangement or
understanding: (A) arises solely from a revocable proxy given in response
to a public proxy or consent solicitation made pursuant to, and in
accordance with, the applicable provisions of the General Rules and
Regulations under the Exchange Act, (B) is not also then reportable by
such Person on Schedule 13D under the Exchange Act (or any comparable or
successor report) and (C) does not constitute a trust, proxy, power of
attorney or other device with the purpose or effect of allowing two or
more persons, acting in concert, to avoid being deemed "beneficial owners"
of such security or otherwise avoid the status of "Acquiring Person" under
the terms of this Agreement or as part of a plan or scheme to avoid the
reporting requirements under Schedule 13D or Sections 13(d) or 13(g) of
the Exchange Act; or
(iii) which are beneficially owned, directly or indirectly,
by any other Person (or any Affiliate or Associate thereof) with which
such Person (or any of such Person's Affiliates or Associates) has any
agreement, arrangement or understanding (whether or not in writing), for
the purpose of acquiring, holding, voting
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(except pursuant to a revocable proxy as described in the proviso to
subparagraph (ii) of this paragraph (f)) or disposing of any voting
securities of the Company; provided, however, that nothing in this
paragraph (f) shall cause a Person engaged in business as an underwriter
of securities to be the "Beneficial Owner" of, or to "beneficially own,"
any securities acquired through such Person's participation in good faith
in a firm commitment underwriting until the expiration of forty days after
the date of such acquisition, and then only if such securities continue to
be owned by such Person at such expiration of forty days.
(g) "Board of Directors" shall have the meaning set forth
in the recitals to this Agreement.
(h) "Business Day" shall mean any day other than a Saturday,
Sunday or a day on which banking institutions in the jurisdiction of the
formation of the Rights Agent are authorized or obligated by law or executive
order to close.
(i) "Close of business" on any given date shall mean 5:00 P.M.,
New York City time, on such date; provided, however, that if such date is not a
Business Day it shall mean 5:00 P.M.,
New York City time, on the next
succeeding Business Day.
(j) "Common Stock" when used with reference to any Person, shall
mean the capital stock of such Person with the greatest voting power, or the
equity securities or other equity interest having power to control or direct
the management, of such Person.
(k) "Common Stock Equivalents" shall have the meaning set forth
in Section 11(a)(iii) hereof.
(l) "Company" shall have the meaning set forth in the
recitals to this Agreement.
(m) "Current Market Price" shall have the meaning set forth in
Section 11(d)(i) hereof.
(n) "Current Value" shall have the meaning set forth in
Section 11(a)(iii) hereof.
(o) "Distribution Date" shall have the meaning set forth in
Section 3(a) hereof.
(p) "Equivalent Preferred Stock" shall have the meaning set
forth in Section 11(b) hereof.
(q) "Exchange Act" shall have the meaning set forth in
Section l(a) hereof.
(r) "Exchange Ratio" shall have the meaning set forth in
Section 29(a) hereof.
(s) "Expiration Date" shall have the meaning set forth in
Section 7(a) hereof.
(t) "Final Expiration Date" shall have the meaning set forth in
Section 7(a) hereof.
(u) "Marathon Right" shall have the meaning set forth in
the recitals to this Agreement.
(v) "Marathon Rights Certificates" shall have the meaning set
forth in Section 3(a) hereof.
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(w) "Marathon Stock" shall mean the USX-Marathon Group Common
Stock, par value $1.00 per share, of the Company.
(x) "NASDAQ" shall have the meaning set forth in Section
11(d)(i) hereof.
(y) "Original Rights" shall have the meaning set forth in
Section 1(f) hereof.
(z) "Original Rights Agreement" shall have the meaning set forth
in the recitals to this Agreement.
(aa) "Person" shall mean any individual, firm, corporation,
partnership, limited liability company or other entity.
(bb) "Preferred Stock" shall mean shares of Series A Junior
Preferred Stock, without par value, of the Company, and, to the extent that
there are not a sufficient number of shares of Series A Junior Preferred Stock
authorized to permit the full exercise of the Rights, any other series of
Preferred Stock, without par value, of the Company designated for such purpose
containing terms substantially similar to the terms of the Series A Junior
Preferred Stock.
(cc) "Principal Party" shall have the meaning set forth in
Section 13(b) hereof.
(dd) "Purchase Price" shall have the meaning set forth in
Section 4(a) hereof.
(ee) "Qualifying Offer" shall have the meaning set forth in
Section 11(a)(ii) hereof.
(ff) "Record Date" shall have the meaning set forth in the
recitals to this Agreement.
(gg) "Redemption Price" shall have the meaning set forth in
Section 23(a) hereof.
(hh) "Rights" shall have the meaning set forth in the
recitals to this Agreement.
(ii) "Rights Agent" shall have the meaning set forth in the
recitals to this Agreement.
(jj) "Rights Certificates" shall have the meaning set forth in
Section 3(a) hereof.
(kk) "Rights Dividend Declaration Date" shall have the meaning
set forth in the recitals to this Agreement.
(ll) "Section 11(a)(ii) Event" shall mean any event described in
Section 11(a)(ii) hereof.
(mm) "Section 11(a)(ii) Trigger Date" shall have the meaning set
forth in Section 11(a)(iii) hereof.
(nn) "Section 13 Event" shall mean any event described in clause
(x), (y) or (z) of Section 13(a) hereof.
(oo) "Spread" shall have the meaning set forth in Section
11(a)(iii) hereof.
(pp) "Steel Right" shall have the meaning set forth in the
recitals to this Agreement.
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(qq) "Steel Rights Certificates" shall have the meaning set
forth in Section 3(a) hereof.
(rr) "Steel Stock" shall mean the USX-U.S. Steel Group Common
Stock, par value $1.00 per share, of the Company.
(ss) "Stock Acquisition Date" shall mean the first date of
public announcement (which, for purposes of this definition, shall include,
without limitation, a report filed or amended pursuant to Section 13(d) under
the Exchange Act) by the Company or an Acquiring Person that an Acquiring
Person has become such, other than pursuant to a Qualifying Offer.
(tt) "Subsidiary" shall mean, with reference to any Person, any
corporation of which an amount of voting securities sufficient to elect at
least a majority of the directors of such corporation is beneficially owned,
directly or indirectly, by such Person, or otherwise controlled by such Person.
(uu) "Substitution Period" shall have the meaning set forth in
Section 11(a)(iii) hereof.
(vv) "Summary of Rights" shall have the meaning set forth in
Section 3(b) hereof.
(ww) "Trading Day" shall have the meaning set forth in Section
11(d)(i) hereof.
(xx) "Triggering Event" shall mean any Section 11(a)(ii) Event
or any Section 13 Event.
(yy) "Voting Power" shall mean the total voting power
represented by the outstanding Marathon Stock and the outstanding Steel Stock.
(zz) "Voting Stock" shall mean the Marathon Stock and the
Steel Stock.
Section 2. Appointment of Rights Agent. The Company hereby appoints
the Rights Agent to act as agent for the Company and the holders of the Rights
in accordance with the terms and conditions hereof, and the Rights Agent hereby
accepts such appointment. The Company may from time to time appoint such
Co-Rights Agents as it may deem necessary or desirable.
Section 3. Issue of Rights Certificates.
(a) Until the earlier of (i) the close of business on the tenth
Business Day after the Stock Acquisition Date (or, if the tenth Business Day
after the Stock Acquisition Date occurs before the Record Date, the close of
business on the Record Date) or (ii) the close of business on the tenth
Business Day (or such later date as may be determined by the Board of
Directors) after the date that a tender or exchange offer by any Person (other
than the Company, any Subsidiary of the Company, any employee benefit plan of
the Company or of any Subsidiary of the Company, or any Person or entity
organized, appointed or established by the Company for or pursuant to the terms
of any such plan) is first published or sent or given within the meaning of
Rule 14d-2(a) of the General Rules and Regulations under the Exchange Act, if,
upon consummation thereof, such Person would become an Acquiring Person, in
either instance, other than pursuant to a Qualifying Offer (the earlier of (i)
and (ii) being herein referred to as the "Distribution Date"), (x) the Marathon
Rights and Steel Rights will be evidenced (subject to the provisions of
paragraph (b) of
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this Section 3) by the certificates for the Marathon Stock and Steel Stock,
respectively, registered in the names of the holders of such Voting Stock
(which certificates for Marathon Stock and Steel Stock shall be deemed also to
be certificates for Marathon Rights and Steel Rights, respectively) and not by
separate certificates, and (y) the Rights will be transferable only in
connection with the transfer of the underlying shares of Voting Stock
(including a transfer to the Company). As soon as practicable after the
Distribution Date, the Company shall promptly notify the Rights Agent thereof
and provide the Rights Agent with a shareholders list of Marathon Stock and
Steel Stock, and the Rights Agent will send or cause to be sent by first-class,
insured, postage prepaid mail, to each record holder of (i) the Marathon Stock
as of the close of business on the Distribution Date, at the address of such
holder shown on the records of the Company, one or more rights certificates, in
substantially the form of Exhibit B-1 hereto (the "Marathon Rights
Certificates"), evidencing one Marathon Right for each share of Marathon Stock
so held, subject to adjustment as provided herein and (ii) the Steel Stock as
of the close of business on the Distribution Date, at the address of such
holder shown on the records of the Company, one or more rights certificates, in
substantially the form of Exhibit B-2 hereto (the "Steel Rights Certificates"
and, together with the Marathon Rights Certificates, the "Rights
Certificates"), evidencing one Steel Right for each share of Steel Stock so
held, subject to adjustment as provided herein. In the event that an adjustment
in the number of Rights per share of Voting Stock has been made pursuant to
Section 11(p) hereof, at the time of distribution of the Rights Certificates,
the Company shall make the necessary and appropriate rounding adjustments (in
accordance with Section 14(a) hereof) so that Rights Certificates representing
only whole numbers of Rights are distributed and cash is paid in lieu of any
fractional Rights. As of and after the Distribution Date, the Rights will be
evidenced solely by such Rights Certificates.
(b) The Company will make available, as promptly as practicable
following the Record Date, a copy of a Summary of Rights, in substantially the
form attached hereto as Exhibit A (the "Summary of Rights"), to any holder of
Rights who may so request from time to time prior to the Expiration Date. With
respect to certificates for the Voting Stock outstanding as of the Record Date,
until the Distribution Date, the Rights will be evidenced by such certificates
for the Voting Stock and the registered holders of Voting Stock shall also be
the registered holders of the associated Rights. Until the earlier of the
Distribution Date or the Expiration Date, the transfer of any certificates
representing shares of Voting Stock in respect of which Rights have been issued
shall also constitute the transfer of the Rights associated with such shares of
Voting Stock.
(c) Rights shall be issued in respect of all shares of Voting
Stock which are issued (whether originally issued or from the Company's
treasury) after the Record Date but prior to the earlier of the Distribution
Date or the Expiration Date. Certificates representing such shares of Voting
Stock shall also be deemed to be certificates for Rights, and shall bear either
(i) the legend set forth in the Original Rights Agreement or (ii) the following
legend:
This certificate also evidences and entitles the holder hereof to
certain Rights as set forth in the Rights Agreement (the "Rights
Agreement") between USX Corporation (the "Company") and the Rights Agent
thereunder (the "Rights Agent"), the terms of which are hereby
incorporated herein by reference and a copy of which is on file at the
principal offices of the Company. Under certain circumstances, as set
forth in the Rights Agreement, such Rights will be evidenced by separate
certificates and will no longer be evidenced by this certificate. The
Company will mail to the holder of this certificate a copy of the Rights
Agreement, as in effect on the date of mailing, without charge promptly
after receipt of a written request therefor.
7
Under certain circumstances set forth in the Rights Agreement, Rights
issued to, or held by, any Person who is, was or becomes an Acquiring
Person, or any Affiliate or Associate thereof (as such terms are defined
in the Rights Agreement), whether currently held by or on behalf of such
Person or by any subsequent holder, may become null and void.
With respect to such certificates containing the foregoing legend (or the
legend required under the Original Rights Agreement), until the earlier of (i)
the Distribution Date or (ii) the Expiration Date, the Rights associated with
the Voting Stock represented by such certificates shall be evidenced by such
certificates alone and registered holders of Voting Stock shall also be the
registered holders of the associated Rights, and the transfer of any of such
certificates shall also constitute the transfer of the Rights associated with
the Voting Stock represented by such certificates.
Section 4. Form of Rights Certificates.
(a) The Marathon Rights Certificates and Steel Rights
Certificates (and the forms of election to purchase and of assignment to be
printed on the reverse thereof) shall each be substantially in the form set
forth in Exhibit B-1 and Exhibit B-2, respectively, and may have such marks of
identification or designation and such legends, summaries or endorsements
printed thereon as the Company may deem appropriate and as are not inconsistent
with the provisions of this Agreement and which do not adversely affect the
rights, duties or responsibilities of the Rights Agent, or as may be required
to comply with any applicable law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on which the
Rights may from time to time be listed, or to conform to usage. Subject to the
provisions of Section 11 and Section 22 hereof, the Rights Certificates,
whenever distributed, shall be dated as of the Record Date and on their face
shall entitle the holders thereof to purchase such number of one one-hundredths
of a share of Preferred Stock as shall be set forth therein at the price set
forth therein (such exercise price per one one-hundredth of a share, the
"Purchase Price"), but the amount and type of securities purchasable upon the
exercise of each Right and the Purchase Price thereof shall be subject to
adjustment as provided herein.
(b) Any Rights Certificate issued pursuant to Section 3(a),
Section 11(a)(i) or Section 22 hereof that represents Rights beneficially owned
by (i) an Acquiring Person or any Associate or Affiliate of an Acquiring
Person, (ii) a transferee of an Acquiring Person (or of any such Associate or
Affiliate) who becomes a transferee after such Acquiring Person becomes such,
or (iii) a transferee of an Acquiring Person (or of any such Associate or
Affiliate) who becomes a transferee prior to or concurrently with the Acquiring
Person becoming such and receives such Rights pursuant to either (A) a transfer
(whether or not for consideration) from the Acquiring Person to holders of
equity interests in such Acquiring Person or to any Person with whom such
Acquiring Person has any continuing agreement, arrangement or understanding
regarding the transferred Rights or (B) a transfer which the Board of Directors
has determined is part of a plan, arrangement or understanding which has as a
primary purpose or effect avoidance of Section 7(e) hereof, and, provided that
the Company shall have notified the Rights Agent that this Section 4(b)
applies, any Rights Certificate issued pursuant to Section 6 or Section 11
hereof upon transfer, exchange, replacement or adjustment of any other Rights
Certificate referred to in this sentence, shall contain (to the extent
feasible) the following legend:
The Rights represented by this Rights Certificate are or were
beneficially owned by a Person who was or became an Acquiring Person or an
Affiliate or Associate thereof (as such terms are defined in the
8
Rights Agreement). Accordingly, this Rights Certificate and the Rights
represented hereby may become null and void in the circumstances specified
in Section 7(e) of such Agreement.
Section 5. Countersignature and Registration.
(a) The Rights Certificates shall be executed on behalf of the
Company by its Chairman of the Board, its Vice Chairman or any Vice President,
either manually or by facsimile signature, and shall have affixed thereto the
Company's seal or a facsimile thereof which shall be attested by the Secretary
or an Assistant Secretary of the Company, either manually or by facsimile
signature. The Rights Certificates shall be countersigned by the Rights Agent,
either manually or by facsimile signature, and shall not be valid for any
purpose unless so countersigned. In case any officer of the Company who shall
have signed any of the Rights Certificates shall cease to be such officer of
the Company before countersignature by the Rights Agent and issuance and
delivery by the Company, such Rights Certificates, nevertheless, may be
countersigned by the Rights Agent and issued and delivered by the Company with
the same force and effect as though the person who signed such Rights
Certificates had not ceased to be such officer of the Company; and any Rights
Certificates may be signed on behalf of the Company by any person who, at the
actual date of the execution of such Rights Certificate, shall be a proper
officer of the Company to sign such Rights Certificate, although at the date of
the execution of this Rights Agreement any such person was not such an officer.
(b) Following the Distribution Date and receipt by the Rights
Agent of all relevant information, the Rights Agent will keep or cause to be
kept, at its office designated pursuant to Section 25 hereof, books for
registration and transfer of the Rights Certificates issued hereunder. Such
books shall show the names and addresses of the respective holders of the
Rights Certificates, the number of Rights evidenced on its face by each of the
Rights Certificates and the date of each of the Rights Certificates.
Section 6. Transfer, Split Up, Combination and Exchange of Rights
Certificates; Mutilated, Destroyed, Lost or Stolen Rights Certificates.
(a) Subject to the provisions of Section 4(b), Section 7(e) and
Section 14 hereof, at any time after the close of business on the Distribution
Date, and at or prior to the close of business on the Expiration Date, any
Rights Certificate or Certificates (other than Rights Certificates that may
have been exchanged pursuant to Section 29 hereof) may be transferred, split
up, combined or exchanged for another Rights Certificate or Certificates,
entitling the registered holder to purchase a like number of one one-hundredths
of a share of Preferred Stock (or, following a Triggering Event, Marathon
Stock, Steel Stock, other securities, cash or other assets, as the case may be)
as the Rights Certificate or Certificates surrendered then entitled such holder
(or former holder in the case of a transfer) to purchase. Any registered holder
desiring to transfer, split up, combine or exchange any Rights Certificate or
Certificates shall make such request in writing delivered to the Rights Agent,
and shall surrender the Rights Certificate or Certificates to be transferred,
split up, combined or exchanged at the principal office or offices of the
Rights Agent designated for such purpose. Neither the Rights Agent nor the
Company shall be obligated to take any action whatsoever with respect to the
transfer of any such surrendered Rights Certificate until the registered holder
shall have completed and signed the certificate contained in the form of
assignment on the reverse side of such Rights Certificate and shall have
provided such additional evidence of the identity of the Beneficial Owner (or
former Beneficial Owner) or Affiliates or Associates thereof as the Company or
the
9
Rights Agent shall reasonably request. Thereupon the Rights Agent shall,
subject to Section 4(b), Section 7(e), Section 14 and Section 29 hereof,
countersign and deliver to the Person entitled thereto a Rights Certificate or
Rights Certificates, as the case may be, as so requested. The Company may
require payment of a sum sufficient to cover any tax or governmental charge
that may be imposed in connection with any transfer, split up, combination or
exchange of Rights Certificates.
(b) Upon receipt by the Company and the Rights Agent of evidence
reasonably satisfactory to them of the loss, theft, destruction or mutilation
of a Rights Certificate, and, in case of loss, theft or destruction, of
indemnity or security reasonably satisfactory to them, and reimbursement to the
Company and the Rights Agent of all reasonable expenses incidental thereto, and
upon surrender to the Rights Agent and cancellation of the Rights Certificate
if mutilated, the Company will execute and deliver a new Rights Certificate of
like tenor to the Rights Agent for countersignature and delivery to the
registered owner in lieu of the Rights Certificate so lost, stolen, destroyed
or mutilated.
Section 7. Exercise of Rights; Purchase Price; Expiration Date of
Rights.
(a) Subject to Section 7(e) hereof, the registered holder of any
Rights Certificate may exercise the Rights evidenced thereby (except as
otherwise provided herein including, without limitation, the restrictions on
exercisability set forth in Section 9(c), Section 11(a)(iii) and Section 23(a)
hereof and the exchange provisions set forth in Section 29 hereof) in whole or
in part at any time after the Distribution Date upon surrender of the Rights
Certificate, with the form of election to purchase and the certificate on the
reverse side thereof duly executed, to the Rights Agent at the office or
offices of the Rights Agent designated for such purpose, together with payment
of the aggregate Purchase Price with respect to the total number of one
one-hundredths of a share (or other securities, cash or other assets, as the
case may be) as to which such surrendered Rights are then exercisable, at or
prior to the earlier of (i) the close of business on October 9, 2009, or such
later date as may be established by the Board of Directors prior to the
expiration of the Rights (the "Final Expiration Date"), or (ii) the time at
which the Rights are redeemed or exchanged as provided in Section 23 and
Section 29 hereof (the earlier of (i) and (ii) being herein referred to as the
"Expiration Date").
(b) The Purchase Price for each one one-hundredth of a share of
Preferred Stock pursuant to the exercise of a Right shall initially be $110,
and shall be subject to adjustment from time to time as provided in Sections 11
and 13(a) hereof and shall be payable in accordance with paragraph (c) below.
(c) Upon receipt of a Rights Certificate representing
exercisable Rights, with the form of election to purchase and the certificate
duly executed, accompanied by payment, with respect to each Right so exercised,
of the Purchase Price per one one-hundredth of a share of Preferred Stock (or
other shares, securities, cash or other assets, as the case may be) to be
purchased as set forth below and an amount equal to any applicable transfer
tax, the Rights Agent shall, subject to Section 20(k) hereof, thereupon
promptly (i) (A) requisition from any transfer agent of the shares of Preferred
Stock (or make available, if the Rights Agent is the transfer agent for such
shares) certificates for the total number of one one-hundredths of a share of
Preferred Stock to be purchased and the Company hereby irrevocably authorizes
its transfer agent to comply with all such requests, or (B) if the Company
shall have elected to deposit the total number of shares of Preferred Stock
issuable upon exercise of the Rights hereunder with a depository agent (which
may include the Company), requisition from the depository agent depository
receipts representing such
10
number of one one-hundredths of a share of Preferred Stock as are to be
purchased (in which case certificates for the shares of Preferred Stock
represented by such receipts shall be deposited by the transfer agent with the
depository agent) and the Company will direct the depository agent to comply
with such request, (ii) requisition from the Company the amount of cash, if
any, to be paid in lieu of fractional shares in accordance with Section 14
hereof, (iii) after receipt of such certificates or depository receipts, cause
the same to be delivered to or upon the order of the registered holder of such
Rights Certificate, registered in such name or names as may be designated by
such holder, and (iv) after receipt thereof, deliver such cash, if any, to or
upon the order of the registered holder of such Rights Certificate. The payment
of the Purchase Price (as such amount may be reduced pursuant to Section
11(a)(iii) hereof) shall be made in cash or by certified bank check or bank
draft payable to the order of the Company. In the event that the Company is
obligated to issue other securities (including Marathon Stock or Steel Stock)
of the Company, pay cash and/or distribute other property pursuant to Section
11(a) hereof, the Company will make all arrangements necessary so that such
other securities, cash and/or other property are available for distribution by
the Rights Agent, if and when appropriate. The Company reserves the right to
require prior to the occurrence of a Triggering Event that, upon exercise of
Rights, a number of Rights be exercised so that only whole shares of Preferred
Stock would be issued.
(d) In case the registered holder of any Rights Certificate
shall exercise less than all the Rights evidenced thereby, a new Rights
Certificate evidencing Rights equivalent to the Rights remaining unexercised
shall be issued by the Rights Agent and delivered to, or upon the order of, the
registered holder of such Rights Certificate, registered in such name or names
as may be designated by such holder, subject to the provisions of Section 14
hereof.
(e) Notwithstanding anything in this Agreement to the contrary,
from and after the first occurrence of a Section 11(a)(ii) Event, any Rights
beneficially owned by (i) an Acquiring Person or an Associate or Affiliate of
an Acquiring Person, (ii) a direct or indirect transferee of an Acquiring
Person (or of any such Associate or Affiliate) who becomes a transferee after
the Acquiring Person becomes such, or (iii) a transferee of an Acquiring Person
(or of any such Associate or Affiliate) who becomes a transferee prior to or
concurrently with the Acquiring Person becoming such and receives such Rights
pursuant to either (A) a transfer (whether or not for consideration) from the
Acquiring Person to holders of equity interests in such Acquiring Person or to
any Person with whom the Acquiring Person has any continuing agreement,
arrangement or understanding regarding the transferred Rights or (B) a transfer
which the Board of Directors has determined is part of a plan, arrangement or
understanding which has as a primary purpose or effect the avoidance of this
Section 7(e), shall become null and void without any further action and no
holder of such Rights shall have any rights whatsoever with respect to such
Rights, whether under any provision of this Agreement or otherwise. The Company
shall notify the Rights Agent when this Section 7(e) applies and shall use all
reasonable efforts to insure that the provisions of this Section 7(e) and
Section 4(b) hereof are complied with, but neither the Company nor the Rights
Agent shall have any liability to any holder of Rights Certificates or other
Person as a result of the Company's failure to make any determinations with
respect to an Acquiring Person or its Affiliates, Associates or transferees
hereunder.
(f) Notwithstanding anything in this Agreement to the contrary,
neither the Rights Agent nor the Company shall be obligated to undertake any
action with respect to a registered holder upon the occurrence of any purported
exercise as set forth in this Section 7 unless such registered holder shall
have (i) completed and signed the certificate contained in the form of election
to purchase set forth on the reverse side
11
of the Rights Certificate surrendered for such exercise, and (ii) provided such
additional evidence of the identity of the Beneficial Owner (or former
Beneficial Owner) or Affiliates or Associates thereof as the Company shall
reasonably request.
Section 8. Cancellation and Destruction of Rights Certificates. All
Rights Certificates surrendered for the purpose of exercise, transfer, split
up, combination or exchange shall, if surrendered to the Company or any of its
agents, be delivered to the Rights Agent for cancellation or in cancelled form,
or, if surrendered to the Rights Agent, shall be cancelled by it, and no Rights
Certificates shall be issued in lieu thereof except as expressly permitted by
any of the provisions of this Agreement. The Company shall deliver to the
Rights Agent for cancellation and retirement, and the Rights Agent shall so
cancel and retire, any other Rights Certificate purchased or acquired by the
Company otherwise than upon the exercise thereof. The Rights Agent shall
deliver all cancelled Rights Certificates to the Company, or shall, at the
written request of the Company, destroy such cancelled Rights Certificates, and
in such case shall deliver a certificate of destruction thereof to the Company.
Section 9. Reservation and Availability of Capital Stock.
(a) The Company covenants and agrees that it will cause to be
reserved and kept available out of its authorized and unissued shares of
Preferred Stock (and, following the occurrence of a Triggering Event, out of
its authorized and unissued shares of Marathon Stock, Steel Stock and/or other
securities, or out of its authorized and issued shares held in its treasury),
the number of shares of Preferred Stock (and, following the occurrence of a
Triggering Event, Marathon Stock, Steel Stock and/or other securities) that, as
provided in this Agreement including Section 11(a)(iii) hereof, will be
sufficient to permit the exercise in full of all outstanding Rights.
(b) So long as the shares of Preferred Stock (and, following the
occurrence of a Triggering Event, Marathon Stock, Steel Stock and/or other
securities) issuable and deliverable upon the exercise of the Rights may be
listed on any national securities exchange, the Company shall use its best
efforts to cause, from and after such time as the Rights become exercisable,
all shares reserved for such issuance to be listed on such exchange upon
official notice of issuance upon such exercise.
(c) The Company shall use its best efforts to (i) file, as soon
as practicable following the earliest date after the first occurrence of a
Section 11(a)(ii) Event on which the consideration to be delivered by the
Company upon exercise of the Rights has been determined in accordance with
Section 11(a)(iii) hereof, a registration statement under the Securities Act of
1933 (the "Act"), with respect to the securities purchasable upon exercise of
the Rights on an appropriate form, (ii) cause such registration statement to
become effective as soon as practicable after such filing, and (iii) cause such
registration statement to remain effective (with a prospectus at all times
meeting the requirements of the Act) until the earlier of (A) the date as of
which the Rights are no longer exercisable for such securities, and (B) the
date of the expiration of the Rights, The Company will also take such action as
may be appropriate under, or to ensure compliance with, the securities or "blue
sky" laws of the various states in connection with the exercisability of the
Rights. The Company may temporarily suspend, for a period of time not to exceed
ninety (90) days after the date set forth in clause (i) of the first sentence
of this Section 9(c), the exercisability of the Rights in order to prepare and
file such registration statement and permit it to become effective. Upon any
such suspension, the Company shall issue a public announcement stating that the
exercisability of the Rights has been temporarily suspended, as well as a
public announcement at such time as the suspension is no longer in effect. In
addition, if the Company shall determine that a registration
12
statement is required following the Distribution Date, the Company may
temporarily suspend the exercisability of the Rights until such time as a
registration statement has been declared effective. Notwithstanding any
provision of this Agreement to the contrary, the Rights shall not be
exercisable in any jurisdiction if the requisite qualification in such
jurisdiction shall not have been obtained, the exercise thereof shall not be
permitted by applicable law or a registration statement shall not have been
declared effective.
(d) The Company covenants and agrees that it will take all such
action as may be necessary to ensure that all one one-hundredths of a share of
Preferred Stock (and, following the occurrence of a Triggering Event, Marathon
Stock, Steel Stock and/or other securities) delivered upon exercise of Rights
shall, at the time of delivery of the certificates for such shares (subject to
payment of the Purchase Price), be duly and validly authorized and issued and
fully paid and nonassessable.
(e) The Company further covenants and agrees that it will pay
when due and payable any and all federal and state transfer taxes and charges
which may be payable in respect of the issuance or delivery of the Rights
Certificates and of any certificates for a number of one one- hundredths of a
share of Preferred Stock (or Marathon Stock, Steel Stock and/or other
securities, as the case may be) upon the exercise of Rights. The Company shall
not, however, be required to pay any transfer tax which may be payable in
respect of any transfer or delivery of Rights Certificates to a Person other
than, or the issuance or delivery of a number of one one-hundredths of a share
of Preferred Stock (or Marathon Stock, Steel Stock and/or other securities, as
the case may be) in respect of a name other than that of, the registered holder
of the Rights Certificates evidencing Rights surrendered for exercise or to
issue or deliver any certificates for a number of one one-hundredths of a share
of Preferred Stock (or Marathon Stock, Steel Stock and/or other securities, as
the case may be) in a name other than that of the registered holder upon the
exercise of any Rights until such tax shall have been paid (any such tax being
payable by the holder of such Rights Certificate at the time of surrender) or
until it has been established to the Company's satisfaction that no such tax is
due.
Section 10. Preferred Stock Record Date. Each person in whose name
any certificate for a number of one one-hundredths of a share of Preferred
Stock (or Marathon Stock, Steel Stock and/or other securities, as the case may
be) is issued upon the exercise of Rights shall for all purposes be deemed to
have become the holder of record of such fractional shares of Preferred Stock
(or Marathon Stock, Steel Stock and/or other securities, as the case may be)
represented thereby on, and such certificate shall be dated, the date upon
which the Rights Certificate evidencing such Rights was duly surrendered and
payment of the Purchase Price (and all applicable transfer taxes) was made;
provided, however, that if the date of such surrender and payment is a date
upon which the Preferred Stock (or Marathon Stock, Steel Stock and/or other
securities, as the case may be) transfer books of the Company are closed, such
Person shall be deemed to have become the record holder of such shares
(fractional or otherwise) on, and such certificate shall be dated, the next
succeeding Business Day on which the Preferred Stock (or Marathon Stock, Steel
Stock and/or other securities, as the case may be) transfer books of the
Company are open. Prior to the exercise of the Rights evidenced thereby, the
holder of a Rights Certificate shall not be entitled to any rights of a
stockholder of the Company with respect to shares for which the Rights shall be
exercisable, including, without limitation, the right to vote, to receive
dividends or other distributions or to exercise any preemptive rights, and
shall not be entitled to receive any notice of any proceedings of the Company,
except as provided herein.
13
Section 11. Adjustment of Purchase Price, Number and Kind of Shares
or Number of Rights. The Purchase Price, the number and kind of shares covered
by each Right and the number of Rights outstanding are subject to adjustment
from time to time as provided in this Section 11.
(a) (i) In the event the Company shall at any time after the
date of this Agreement (A) declare a dividend on the Preferred Stock payable in
shares of Preferred Stock, (B) subdivide the outstanding Preferred Stock, (C)
combine the outstanding Preferred Stock into a smaller number of shares, or (D)
issue any shares of its capital stock in a reclassification of the Preferred
Stock (including any such reclassification in connection with a consolidation
or merger in which the Company is the continuing or surviving corporation),
except as otherwise provided in this Section 11(a) and Section 7(e) hereof, the
Purchase Price in effect at the time of the record date for such dividend or of
the effective date of such subdivision, combination or reclassification, and
the number and kind of shares of Preferred Stock or capital stock, as the case
may be, issuable on such date, shall be proportionately adjusted so that the
holder of any Right exercised after such time shall be entitled to receive,
upon payment of the Purchase Price then in effect, the aggregate number and
kind of shares of Preferred Stock or capital stock, as the case may be, which,
if such Right had been exercised immediately prior to such date and at a time
when the Preferred Stock transfer books of the Company were open, such holder
would have owned upon such exercise and been entitled to receive by virtue of
such dividend, subdivision, combination or reclassification. If an event occurs
which would require an adjustment under both this Section 11(a)(i) and Section
11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be
in addition to, and shall be made prior to, any adjustment required pursuant to
Section 11(a)(ii) hereof.
(ii) In the event that any Person shall at any time after
the Rights Dividend Declaration Date become an Acquiring Person, unless
the event causing such Person to become an Acquiring Person is a
transaction set forth in Section 13(a) hereof, or is an acquisition of
shares of Voting Stock pursuant to a cash tender offer for all outstanding
shares of Voting Stock which meets all of the following requirements:
(1) on or prior to the date such offer is commenced
within the meaning of Rule 14d-2(a) of the General Rules and Regulations
under the Exchange Act, such Person has, and has provided to the Company,
firm written commitments from responsible financial institutions, which
have been accepted by such Person (or one of its Affiliates), to provide,
subject only to customary terms and conditions, funds for such offer
which, when added to the amount of cash and cash equivalents which such
Person then has available and has irrevocably committed in writing to the
Company to utilize for purposes of such offer, will be sufficient to pay
for all shares of Voting Stock outstanding on a fully diluted basis and
all related expenses;
(2) shares of Voting Stock representing a majority of
the Voting Power as of the day immediately prior to the date of
announcement of such offer (other than Voting Stock beneficially owned by
such Person immediately prior to such offer) are tendered and purchased
pursuant to such offer;
(3) such offer remains open for at least 45 Business
Days; provided, that (x) if there is any increase in the cash price of
such offer, such offer must remain open for at least an additional 20
Business Days after the last such increase, (y) such offer must remain
open for at least 20 Business Days after the date that any bona fide
alternative offer is made which, in the opinion of one or more investment
banking
14
firms designated by the Company, provides for consideration per share of
Marathon Stock and Steel Stock, respectively, in excess of that provided
for in such offer, and (z) such offer must remain open for at least 20
Business Days after the date on which such Person reduces the per share
price offered in accordance with clause (4)(y) of this Section 11(a)(ii)
(provided, in the case of each of clause (x), (y) and (z) above, in no
event will such offer have been outstanding for less than 45 Business
Days); provided further, however, that such offer need not remain open, as
a result of this clause (3), beyond (i) the time which any other offer
satisfying the criteria for a Qualifying Offer is then required to be kept
open under this clause (3), or (ii) the scheduled expiration date, as such
date may be extended by public announcement prior to the then scheduled
expiration date, of any other offer with respect to which the Board of
Directors has agreed to redeem the Rights immediately prior to acceptance
for payment of shares thereunder (unless such other offer is terminated
prior to its expiration without any shares having been purchased
thereunder); and
(4) prior to or on the date that such offer is
commenced within the meaning of Rule 14d-2(a) of the General Rules and
Regulations under the Exchange Act, such Person makes an irrevocable
written commitment to the Company (x) to consummate an all-cash
transaction or transactions promptly upon the completion of such offer,
whereby all shares of Voting Stock not purchased in such offer will be
acquired at the same price per share of Marathon Stock and Steel Stock,
respectively, paid in such offer, provided that the Board of Directors
shall have granted any approvals required to enable such Person to
consummate such transaction or transactions following consummation of such
offer without obtaining the vote of any other stockholder, (y) that such
Person will not make any amendment to the original offer which reduces the
per share price offered (other than a reduction to reflect any dividend
declared by the Company after the commencement of such offer or any
material change in the capital structure of the Company initiated by the
Company after the commencement of such offer, whether by way of
recapitalization, reorganization, repurchase or otherwise), changes the
form of consideration offered, reduces the number of shares being sought
or which is in any other respect materially adverse to the holders of
Voting Stock, and (z) that neither such Person nor any of its Affiliates
or Associates will make any offer for any equity securities of the Company
for a period of one year after the commencement of the original offer if
such original offer does not result in the tender of the number of shares
of Voting Stock required to be purchased pursuant to clause (2) above,
unless another all cash tender offer for all outstanding shares of Voting
Stock is commenced (a) at a price per share of Marathon Stock and Steel
Stock, respectively, in excess of that provided for in such original offer
or (b) with the approval of the Board of Directors (in which event, any
new offer by such Person or of any of its Affiliates or Associates must be
at a price not less than that provided for in such approved offer);
(an offer meeting the requirements set forth above being referred to
herein as a "Qualifying Offer"), then, promptly following five (5) days
after the date of the first occurrence of such an event, proper provision
shall be made so that each holder of a Marathon Right or a Steel Right
(except as provided below and in Section 7(e) hereof), as the case may be,
shall thereafter have the right to receive, upon exercise thereof at the
then current Purchase Price in accordance with the terms of this
Agreement, in lieu of
15
a number of one one-hundredths of a share of Preferred Stock, such number
of shares of Marathon Stock or Steel Stock, respectively, as shall equal
the result obtained by (x) multiplying the then current Purchase Price by
the then number of one one-hundredths of a share of Preferred Stock for
which a Right was exercisable immediately prior to the first occurrence of
a Section 11(a)(ii) Event, and (y) dividing that product (which, following
such first occurrence, shall thereafter be referred to as the "Purchase
Price" for each Right and for all purposes of this Agreement) by 50% of
the Current Market Price per share of Marathon Stock, in the case of a
Marathon Right, or Steel Stock, in the case of a Steel Right, on the date
of such first occurrence (such number of shares of Marathon Stock or Steel
Stock, as the case may be, being referred to as the "Adjustment Shares").
(iii) In the event that the number of shares of Marathon
Stock and/or Steel Stock which are authorized by the Company's Restated
Certificate of Incorporation but that are not outstanding or reserved for
issuance for purposes other than upon exercise of the Rights are not
sufficient to permit the exercise in full of the Rights in accordance with
the foregoing subparagraph (ii) of this Section 11(a), the Company shall
(A) determine the excess of (1) the value of the Adjustment Shares
issuable upon the exercise of a Right (the "Current Value") over (2) the
Purchase Price (such excess, the "Spread"), and (B) with respect to each
Right (subject to Section 7(e) hereof), make adequate provision to
substitute for the Adjustment Shares, upon exercise of a Right and payment
of the applicable Purchase Price, (1) cash, (2) a reduction in the
Purchase Price, (3) Marathon Stock or Steel Stock, or other equity
securities of the Company (including, without limitation, shares, or units
of shares, of preferred stock (irrespective of the voting rights
associated with any units or shares of preferred stock) which the Board of
Directors has deemed to have the same value as shares of Marathon Stock or
Steel Stock (such shares of preferred stock, "Common Stock Equivalents")),
(4) debt securities of the Company, (5) other assets, or (6) any
combination of the foregoing, having an aggregate value equal to the
Current Value, where such aggregate value has been determined by the Board
of Directors based upon the advice of a nationally recognized investment
banking firm selected by the Board of Directors; provided, however, if the
Company shall not have made adequate provision to deliver value pursuant
to clause (B) above within thirty (30) days following the later of (x) the
first occurrence of a Section 11(a)(ii) Event and (y) the date on which
the Company's right of redemption pursuant to Section 23(a) expires (the
later of (x) and (y) being referred to herein as the "Section 11(a)(ii)
Trigger Date"), then the Company shall be obligated to deliver, upon the
surrender for exercise of a Right and without requiring payment of the
Purchase Price, shares of Marathon Stock or Steel Stock (to the extent
available), as the case may be, and then, if necessary, cash, which shares
and/or cash have an aggregate value equal to the Spread. If the Board of
Directors shall determine in good faith that it is likely that sufficient
additional shares of Marathon Stock or Steel Stock could be authorized for
issuance upon exercise in full of the Rights, the thirty (30) day period
set forth above may be extended to the extent necessary, but not more than
ninety (90) days after the Section 11(a)(ii) Trigger Date, in order that
the Company may seek stockholder approval for the authorization of such
additional shares (such period, as it may be extended, the "Substitution
Period"). To the extent that the Company determines that some action need
be taken pursuant to the first and/or second sentences of this Section
11(a)(iii), the Company (x) shall provide, subject to Section 7(e) hereof,
that such action shall apply uniformly to all outstanding Rights, and (y)
may suspend the exercisability of the Rights until the expiration of the
16
Substitution Period in order to seek any authorization of additional
shares and/or to decide the appropriate form of distribution to be made
pursuant to such first sentence and to determine the value thereof. In the
event of any such suspension, the Company shall issue a public
announcement stating that the exercisability of the Rights has been
temporarily suspended, as well as a public announcement at such time as
the suspension is no longer in effect. For purposes of this Section
11(a)(iii), the value of each Adjustment Share shall be the Current Market
Price per share of the Marathon Stock or Steel Stock, as the case may be,
on the Section 11(a)(ii) Trigger Date and the value of any Common Stock
Equivalent shall be deemed to equal the Current Market Price per share of
the Marathon Stock or Steel Stock, as the case may be, on such date.
(b) In case the Company shall fix a record date for the issuance
of rights, options or warrants to all holders of Preferred Stock entitling them
to subscribe for or purchase (for a period expiring within forty-five (45)
calendar days after such record date) Preferred Stock (or shares having the
same rights, privileges and preferences as the shares of Preferred Stock
("Equivalent Preferred Stock")) or securities convertible into Preferred Stock
or Equivalent Preferred Stock at a price per share of Preferred Stock or per
share of Equivalent Preferred Stock (or having a conversion price per share, if
a security convertible into Preferred Stock or Equivalent Preferred Stock) less
than the Current Market Price per share of Preferred Stock on such record date,
the Purchase Price to be in effect after such record date shall be determined
by multiplying the Purchase Price in effect immediately prior to such record
date by a fraction, the numerator of which shall be the number of shares of
Preferred Stock outstanding on such record date, plus the number of shares of
Preferred Stock which the aggregate offering price of the total number of
shares of Preferred Stock and/or Equivalent Preferred Stock so to be offered
(and/or the aggregate initial conversion price of the convertible securities so
to be offered) would purchase at such current market price, and the denominator
of which shall be the number of shares of Preferred Stock outstanding on such
record date, plus the number of additional shares of Preferred Stock and/or
Equivalent Preferred Stock to be offered for subscription or purchase (or into
which the convertible securities so to be offered are initially convertible).
In case such subscription price may be paid by delivery of consideration part
or all of which may be in a form other than cash, the value of such
consideration shall be as determined in good faith by the Board of Directors,
whose determination shall be described in a statement filed with the Rights
Agent and shall be binding on the Rights Agent and the holders of the Rights.
Shares of Preferred Stock owned by or held for the account of the Company shall
not be deemed outstanding for the purpose of any such computation. Such
adjustment shall be made successively whenever such a record date is fixed, and
in the event that such rights or warrants are not so issued, the Purchase Price
shall be adjusted to be the Purchase Price which would then be in effect if
such record date had not been fixed.
(c) In case the Company shall fix a record date for a
distribution to all holders of Preferred Stock (including any such distribution
made in connection with a consolidation or merger in which the Company is the
continuing corporation) of evidences of indebtedness, cash (other than a
regular quarterly cash dividend out of the earnings or retained earnings of the
Company), assets (other than a dividend payable in Preferred Stock, but
including any dividend payable in stock other than Preferred Stock) or
subscription rights or warrants (excluding those referred to in Section 11(b)
hereof), the Purchase Price to be in effect after such record date shall be
determined by multiplying the Purchase Price in effect immediately prior to
such record date by a fraction, the numerator of which shall be the Current
Market Price per share of Preferred Stock on such record date, less the fair
market value (as determined in good faith by the Board of Directors, whose
determination shall be
17
described in a statement filed with the Rights Agent) of the portion of the
cash, assets or evidences of indebtedness so to be distributed or of such
subscription rights or warrants applicable to a share of Preferred Stock and
the denominator of which shall be such Current Market Price per share of
Preferred Stock. Such adjustments shall be made successively whenever such a
record date is fixed, and in the event that such distribution is not so made,
the Purchase Price shall be adjusted to be the Purchase Price which would have
been in effect if such record date had not been fixed.
(d) (i) For the purpose of any computation hereunder, other than
computations made pursuant to Section 11(a)(iii) hereof, the "Current Market
Price" per share of Marathon Stock or Steel Stock on any date shall be deemed
to be the average of the daily closing prices per share of such Marathon Stock
or Steel Stock, respectively, for the thirty (30) consecutive Trading Days
immediately prior to such date, and for purposes of computations made pursuant
to Section 11(a)(iii) hereof, the Current Market Price per share of Marathon
Stock or Steel Stock, as the case may be, on any date shall be deemed to be the
average of the daily closing prices per share of such Marathon Stock or Steel
Stock, respectively, for the ten (10) consecutive Trading Days immediately
following such date; provided, however, that in the event that the Current
Market Price per share of the Marathon Stock or Steel Stock is determined
during a period following the announcement by the issuer of such Marathon Stock
or Steel Stock, as the case may be, of (A) a dividend or distribution on such
Marathon Stock or Steel Stock payable in shares of such Marathon Stock or Steel
Stock or securities convertible into shares of such Marathon Stock or Steel
Stock (other than the Rights), or (B) any subdivision, combination or
reclassification of such Marathon Stock or Steel Stock, and the ex-dividend
date for such dividend or distribution, or the record date for such
subdivision, combination or reclassification shall not have occurred prior to
the commencement of the requisite thirty (30) Trading Day period or ten (10)
Trading Day period, as set forth above; then, and in each such case, the
Current Market Price shall be properly adjusted to take into account
ex-dividend trading. The closing price for each day shall be the last sale
price, regular way, or, in case no such sale takes place on such day, the
average of the closing bid and asked prices, regular way, in either case as
reported in the principal consolidated transaction reporting system with
respect to securities listed or admitted to trading on the
New York Stock
Exchange or, if the shares of Marathon Stock or Steel Stock, as the case may
be, are not listed or admitted to trading on the
New York Stock Exchange, as
reported in the principal consolidated transaction reporting system with
respect to securities listed on the principal national securities exchange on
which the shares of Marathon Stock or Steel Stock, as the case may be, are
listed or admitted to trading or, if the shares of Marathon Stock or Steel
Stock, as the case may be, are not listed or admitted to trading on any
national securities exchange, the last quoted price or, if not so quoted, the
average of the high bid and low asked prices in the over-the-counter market, as
reported by the National Association of Securities Dealers, Inc. Automated
Quotation System ("NASDAQ") or such other system then in use, or, if on any
such date the shares of Marathon Stock or Steel Stock, as the case may be, 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
Marathon Stock or Steel Stock, as the case may be, selected by the Board of
Directors. If on any such date no market maker is making a market in the
Marathon Stock or Steel Stock, as the case may be, the fair value of such
shares on such date as determined in good faith by the Board of Directors shall
be used. The term "Trading Day" shall mean a day on which the principal
national securities exchange on which the shares of Marathon Stock or Steel
Stock, as the case may be, are listed or admitted to trading is open for the
transaction of business or, if the shares of Marathon Stock or Steel Stock, as
the case may be, are not listed or admitted to trading on any national
securities exchange, a Business Day. If the Marathon Stock or Steel Stock, as
the case may be, are not publicly held or not so listed
18
or traded, Current Market Price per share shall mean the fair value per share
as determined in good faith by the Board of Directors, whose determination
shall be described in a statement filed with the Rights Agent and shall be
conclusive for all purposes.
(ii) For the purpose of any computation hereunder, the
Current Market Price per share of Preferred Stock shall be determined in
the same manner as set forth above for the Voting Stock in clause (i) of
this Section 11(d) (other than the last sentence thereof). If the Current
Market Price per share of Preferred Stock cannot be determined in the
manner provided above or if the Preferred Stock is not publicly held or
listed or traded in a manner described in clause (i) of this Section
11(d), the Current Market Price per share of Preferred Stock shall be
conclusively deemed to be an amount equal to 100 (as such number may be
appropriately adjusted for such events as stock splits, stock dividends
and recapitalizations with respect to the Voting Stock occurring after the
date of this Agreement) multiplied by an amount equal to the product of
(x) the sum of (1) the Current Market Price per share of the Marathon
Stock and (2) the Current Market Price per share of the Steel Stock
multiplied by (y) 0.5. If none of the Marathon Stock, the Steel Stock, or
the Preferred Stock are publicly held or so listed or traded, Current
Market Price per share of the Preferred Stock shall mean the fair value
per share as determined in good faith by the Board of Directors, whose
determination shall be described in a statement filed with the Rights
Agent and shall be conclusive for all purposes. For all purposes of this
Agreement, the Current Market Price of one one-hundredth of a share of
Preferred Stock shall be equal to the Current Market Price of one share of
Preferred Stock divided by 100.
(e) Anything herein to the contrary notwithstanding, no
adjustment in the Purchase Price shall be required unless such adjustment would
require an increase or decrease of at least one percent (1%) in the Purchase
Price; provided, however, that any adjustments which by reason of this Section
11(e) are not required to be made shall be carried forward and taken into
account in any subsequent adjustment. All calculations under this Section 11
shall be made to the nearest cent or to the nearest ten- thousandth of a share
of Marathon Stock or Steel Stock, or other share or one-millionth of a share of
Preferred Stock, as the case may be. Notwithstanding the first sentence of this
Section 11(e), any adjustment required by this Section 11 shall be made no
later than the earlier of (i) three (3) years from the date of the transaction
which mandates such adjustment, or (ii) the Expiration Date.
(f) If as a result of an adjustment made pursuant to Section
11(a)(ii) or Section 13(a) hereof, the holder of any Right thereafter exercised
shall become entitled to receive any shares of capital stock other than
Preferred Stock, thereafter the number of such other shares so receivable upon
exercise of any Right and the Purchase Price thereof shall be subject to
adjustment from time to time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to the Preferred Stock contained in
Sections 11(a), (b), (c), (e), (g), (h), (i), (j), (k) and (m), and the
provisions of Sections 7, 9, 10, 13 and 14 hereof with respect to the Preferred
Stock shall apply on like terms to any such other shares.
(g) All Rights originally issued by the Company subsequent to
any adjustment made to the Purchase Price hereunder shall evidence the right to
purchase, at the adjusted Purchase Price, the number of one one- hundredths of
a share of Preferred Stock purchasable from time to time hereunder upon
exercise of the Rights, all subject to further adjustment as provided herein.
19
(h) Unless the Company shall have exercised its election as
provided in Section 11(i), upon each adjustment of the Purchase Price as a
result of the calculations made in Sections 11(b) and (c), each Right
outstanding immediately prior to the making of such adjustment shall thereafter
evidence the right to purchase, at the adjusted Purchase Price, that number of
one one-hundredths of a share of Preferred Stock (calculated to the nearest
one-millionth) obtained by (i) 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 (ii) dividing the product so obtained by the Purchase Price in
effect immediately after such adjustment of the Purchase Price.
(i) The Company may elect on or after the date of any adjustment
of the Purchase Price to adjust the number of Rights, in lieu of any adjustment
in the number of one one-hundredths of a share of Preferred Stock purchasable
upon the exercise of a Right. Each of the Rights outstanding after the
adjustment in the number of Rights shall be exercisable for the number of one
one-hundredths of a share of Preferred Stock for which a Right was exercisable
immediately prior to such adjustment. Each Right held of record prior to such
adjustment of the number of Rights shall become that number of Rights
(calculated to the nearest one-ten-thousandth) obtained by dividing the
Purchase Price in effect immediately prior to adjustment of the Purchase Price
by the Purchase Price in effect immediately after adjustment of the Purchase
Price. The Company shall make a public announcement of its election to adjust
the number of Rights, indicating the record date for the adjustment, and, if
known at the time, the amount of the adjustment to be made. This record date
may be the date on which the Purchase Price is adjusted or any day thereafter,
but, if the Rights Certificates have been issued, shall be at least ten (10)
days later than the date of the public announcement. If Rights Certificates
have been issued, upon each adjustment of the number of Rights pursuant to this
Section 11(i), the Company shall, as promptly as practicable, cause to be
distributed to holders of record of Rights Certificates on such record date
Rights Certificates evidencing, subject to Section 14 hereof, the additional
Rights to which such holders shall be entitled as a result of such adjustment,
or, at the option of the Company, shall cause to be distributed to such holders
of record in substitution and replacement for the Rights Certificates held by
such holders prior to the date of adjustment, and upon surrender thereof, if
required by the Company, new Rights Certificates evidencing all the Rights to
which such holders shall be entitled after such adjustment. Rights Certificates
so to be distributed shall be issued, executed and countersigned in the manner
provided for herein (and may bear, at the option of the Company, the adjusted
Purchase Price) and shall be registered in the names of the holders of record
of Rights Certificates on the record date specified in the public announcement.
(j) Irrespective of any adjustment or change in the Purchase
Price or the number of one one-hundredths of a share of Preferred Stock
issuable upon the exercise of the Rights, the Rights Certificates theretofore
and thereafter issued may continue to express the Purchase Price per one
one-hundredths of a share and the number of one one- hundredths of a share
which were expressed in the initial Rights Certificates issued hereunder.
(k) Before taking any action that would cause an adjustment
reducing the Purchase Price below the then stated value, if any, of the number
of one one-hundredths of a share of Preferred Stock issuable upon exercise of
the Rights, the Company shall take any corporate action which may, in the
opinion of its counsel, be necessary in order that the Company may validly and
legally issue fully paid and nonassessable such number of one one-hundredths of
a share of Preferred Stock at such adjusted Purchase Price.
20
(l) In any case in which this Section 11 shall require that an
adjustment in the Purchase Price be made effective as of a record date for a
specified event, the Company may elect to defer (with prompt notice thereof to
the Rights Agent) until the occurrence of such event the issuance to the holder
of any Right exercised after such record date the number of one one-hundredths
of a share of Preferred Stock and other capital stock or securities of the
Company, if any, issuable upon such exercise over and above the number of one
one-hundredths of a share of Preferred Stock and other capital stock or
securities of the Company, if any, issuable upon such exercise on the basis of
the Purchase Price in effect prior to such adjustment; provided, however, that
the Company shall deliver to such holder a due xxxx or other appropriate
instrument evidencing such holder's right to receive such additional shares
(fractional or otherwise) or securities upon the occurrence of the event
requiring such adjustment.
(m) Anything in this Section 11 to the contrary notwithstanding,
the Company shall be entitled to make such reductions in the Purchase Price, in
addition to those adjustments expressly required by this Section 11, as and to
the extent that in their good faith judgment the Board of Directors shall
determine to be advisable in order that any (i) consolidation or subdivision of
the Preferred Stock, (ii) issuance wholly for cash of any shares of Preferred
Stock at less than the Current Market Price, (iii) issuance wholly for cash of
shares of Preferred Stock or securities which by their terms are convertible
into or exchangeable for shares of Preferred Stock, (iv) stock dividends or (v)
issuance of rights, options or warrants referred to in this Section 11,
hereafter made by the Company to holders of its Preferred Stock shall not be
taxable to such stockholders.
(n) The Company covenants and agrees that it shall not, at any
time after the Distribution Date, (i) consolidate with any other Person (other
than a Subsidiary of the Company in a transaction which complies with Section
11(o) hereof), (ii) merge with or into any other Person (other than a
Subsidiary of the Company in a transaction which complies with Section 11(o)
hereof), or (iii) sell or transfer (or permit any Subsidiary to sell or
transfer), in one transaction, or a series of related transactions, assets,
earning power or cash flow aggregating more than 50% of the assets, earning
power or cash flow of the Company and its Subsidiaries (taken as a whole) to
any other Person or Persons (other than the Company and/or any of its
Subsidiaries in one or more transactions each of which complies with Section
11(o) hereof), if (x) at the time of or immediately after such consolidation,
merger or sale there are any rights, warrants or other instruments or
securities outstanding or agreements in effect which would substantially
diminish or otherwise eliminate the benefits intended to be afforded by the
Rights or (y) prior to, simultaneously with or immediately after such
consolidation, merger or sale, the shareholders of the Person who constitutes,
or would constitute, the "Principal Party" for purposes of Section 13(a) hereof
shall have received a distribution of Rights previously owned by such Person or
any of its Affiliates and Associates.
(o) The Company covenants and agrees that, after the
Distribution Date, it will not, except as permitted by Section 23 or Section 26
hereof, take (or permit any Subsidiary to take) any action if at the time such
action is taken it is reasonably foreseeable that such action will diminish
substantially or otherwise eliminate the benefits intended to be afforded by
the Rights.
(p) Anything in this Agreement to the contrary notwithstanding,
in the event that the Company shall at any time after the Rights Dividend
Declaration Date and prior to the Distribution Date (i) declare a dividend on
the outstanding shares of any class of Voting Stock payable in shares of any
class of Voting Stock, (ii) subdivide the
21
outstanding shares of any class of Voting Stock, or (iii) combine the
outstanding shares of any class of Voting Stock into a smaller number of
shares, the number of Rights associated with each share of such class of Voting
Stock then outstanding, or issued or delivered thereafter but prior to the
Distribution Date, shall be proportionately adjusted so that the number of
Rights thereafter associated with each share of such class of Voting Stock
following any such event shall equal the result obtained by multiplying the
number of Rights associated with each share of such class of Voting Stock
immediately prior to such event by a fraction the numerator of which shall be
the total number of shares of such class of Voting Stock outstanding
immediately prior to the occurrence of the event and the denominator of which
shall be the total number of shares of such class of Voting Stock outstanding
immediately following the occurrence of such event.
Section 12. Certificate of Adjusted Purchase Price or Number of
Shares. Whenever an adjustment is made as provided in Section 11 and Section 13
hereof, the Company shall (a) promptly prepare a certificate setting forth such
adjustment and a brief statement of the facts accounting for such adjustment,
(b) promptly file with the Rights Agent, and with each transfer agent for the
Preferred Stock, the Marathon Stock and the Steel Stock, a copy of such
certificate, and (c) mail, or cause to be mailed, a brief summary thereof to
each holder of a Rights Certificate in accordance with Section 25 hereof. The
Rights Agent shall be fully protected in relying on any such certificate and on
any adjustment therein contained.
Section 13. Consolidation, Merger or Sale or Transfer of Assets or
Earning Power.
(a) In the event that, following the Stock Acquisition Date,
directly or indirectly, (x) the Company shall consolidate with, or merge with
and into, any other Person (other than a Subsidiary of the Company in a
transaction which complies with Section 11(o) hereof), and the Company shall
not be the continuing or surviving corporation of such consolidation or merger,
(y) any Person (other than a Subsidiary of the Company in a transaction which
complies with Section 11(o) hereof) shall consolidate with, or merge with or
into, the Company, and the Company shall be the continuing or surviving
corporation of such consolidation or merger and, in connection with such
consolidation or merger, all or part of the outstanding shares of Voting Stock
shall be changed into or exchanged for stock or other securities of any other
Person or cash or any other property, or (z) the Company shall sell or
otherwise transfer (or one or more of its Subsidiaries shall sell or otherwise
transfer), in one transaction or a series of related transactions, assets,
earning power or cash flow aggregating more than 50% of the assets, earning
power or cash flow of the Company and its Subsidiaries (taken as a whole) to
any Person or Persons (other than the Company or any Subsidiary of the Company
in one or more transactions each of which complies with Section 11(o) hereof),
then, and in each such case (except as may be contemplated by Section 13(d)
hereof), proper provision shall be made so that: (i) each holder of a Right,
except as provided in Section 7(e) hereof, shall thereafter have the right to
receive, upon the exercise thereof at the then current Purchase Price in
accordance with the terms of this Agreement, such number of validly authorized
and issued, fully paid, non-assessable and freely tradeable shares of Common
Stock of the Principal Party (as such term is hereinafter defined), not subject
to any liens, encumbrances, rights of first refusal or other adverse claims, as
shall be equal to the result obtained by (1) multiplying the then current
Purchase Price by the number of one one-hundredths of a share of Preferred
Stock for which a Right is exercisable immediately prior to the first
occurrence of a Section 13 Event (or, if a Section 11(a)(ii) Event has occurred
prior to the first occurrence of a Section 13 Event, multiplying the number of
such one one- hundredths of a share for which a Right was exercisable
immediately prior to the first occurrence of a Section 11(a)(ii) Event by the
Purchase Price
22
in effect immediately prior to such first occurrence), and dividing that
product (which, following the first occurrence of a Section 13 Event, shall be
referred to as the "Purchase Price" for each Right and for all purposes of this
Agreement) by (2) 50% of the Current Market Price per share of the Common Stock
of such Principal Party on the date of consummation of such Section 13 Event;
(ii) such Principal Party shall thereafter be liable for, and shall assume, by
virtue of such Section 13 Event, all the obligations and duties of the Company
pursuant to this Agreement; (iii) the term "Company" shall thereafter be deemed
to refer to such Principal Party, it being specifically intended that the
provisions of Section 11 hereof shall apply only to such Principal Party
following the first occurrence of a Section 13 Event; (iv) such Principal Party
shall take such steps (including, but not limited to, the reservation of a
sufficient number of shares of its Common Stock) in connection with the
consummation of any such transaction as may be necessary to assure that the
provisions hereof shall thereafter be applicable, as nearly as reasonably may
be, in relation to its shares of Common Stock thereafter deliverable upon the
exercise of the Rights; and (v) the provisions of Section 11(a)(ii) hereof
shall be of no effect following the first occurrence of any Section 13 Event.
(b) "Principal Party" shall mean
(i) in the case of any transaction described in clause (x)
or (y) of the first sentence of Section 13(a), the Person that is the
issuer of any securities into which shares of Voting Stock are converted
in such merger or consolidation, and if no securities are so issued, the
Person that is the other party to such merger or consolidation; and
(ii) in the case of any transaction described in clause (z)
of the first sentence of Section 13(a), the Person that is the party
receiving the greatest portion of the assets or earning power transferred
pursuant to such transaction or transactions;
provided, however, that in any such case, (1) if the Common Stock of such
Person is not at such time and has not been continuously over the preceding
twelve (12) month period registered under Section 12 of the Exchange Act, and
such Person is a direct or indirect Subsidiary of another Person the Common
Stock of which is and has been so registered, "Principal Party" shall refer to
such other Person; and (2) in case such Person is a Subsidiary, directly or
indirectly, of more than one Person, the Common Stocks of two or more of which
are and have been so registered, "Principal Party" shall refer to whichever of
such Persons is the issuer of the Common Stock having the greatest aggregate
market value.
(c) The Company shall not consummate any such consolidation,
merger, sale or transfer unless the Principal Party shall have a sufficient
number of authorized shares of its Common Stock which have not been issued or
reserved for issuance to permit the exercise in full of the Rights in
accordance with this Section 13 and unless prior thereto the Company and such
Principal Party shall have executed and delivered to the Rights Agent a
supplemental agreement providing for the terms set forth in paragraphs (a) and
(b) of this Section 13 and further providing that, as soon as practicable after
the date of any consolidation, merger or sale of assets mentioned in paragraph
(a) of this Section 13, the Principal Party will
(i) prepare and file a registration statement under the
Act, with respect to the Rights and the securities purchasable upon
exercise of the Rights on an appropriate form, and will use its best
efforts to cause such registration statement to (A) become effective as
soon as practicable after such filing and (B) remain effective (with a
prospectus at all times meeting the requirements of the Act) until the
Expiration Date;
23
(ii) take all such other action as may be necessary to
enable the Principal Party to issue the securities purchasable upon
exercise of the Rights, including, but not limited to, the registration or
qualification of such securities under all requisite securities laws of
jurisdictions of the various states and the listing of such securities on
such exchanges and trading markets as may be necessary or appropriate; and
(iii) deliver to holders of the Rights historical financial
statements for the Principal Party and each of its Affiliates which comply
in all respects with the requirements for registration on Form 10 under
the Exchange Act.
The provisions of this Section 13 shall similarly apply to successive mergers
or consolidations or sales or other transfers. In the event that a Section 13
Event shall occur at any time after the occurrence of a Section 11(a)(ii)
Event, the Rights which have not theretofore been exercised shall thereafter
become exercisable in the manner described in Section 13(a).
(d) Notwithstanding anything in this Agreement to the contrary,
Section 13 shall not be applicable to a transaction described in subparagraphs
(x) and (y) of Section 13(a) hereof if (i) such transaction is consummated with
a Person or Persons who acquired shares of Voting Stock pursuant to a
Qualifying Offer (or a wholly owned subsidiary of any such Person or Persons),
(ii) the price per share of Marathon Stock and Steel Stock offered in such
transaction is not less than the price per share of Marathon Stock and Steel
Stock, respectively, paid to all holders of shares of Marathon Stock and Steel
Stock whose shares were purchased pursuant to such Qualifying Offer and (iii)
the form of consideration being offered to the remaining holders of shares of
Voting Stock pursuant to such transaction is cash. Upon consummation of any
such transaction contemplated by this Section 13(d), all Rights hereunder shall
expire.
Section 14. Fractional Rights and Fractional Shares.
(a) The Company shall not be required to issue fractions of
Rights, except prior to the Distribution Date as provided in Section 11(p)
hereof, or to distribute Rights Certificates which evidence fractional Rights.
In lieu of such fractional Rights, there shall be paid to the registered
holders of the Rights Certificates with regard to which such fractional Rights
would otherwise be issuable, an amount in cash equal to the same fraction of
the current market value of a whole Right. For purposes of this Section 14(a),
the current market value of a whole Right shall be the closing price of the
Rights for the Trading Day immediately prior to the date on which such
fractional Rights would have been otherwise issuable. The closing price of the
Rights for any day shall be the last sale price, regular way, or, in case no
such sale takes place on such day, the average of the closing bid and asked
prices, regular way, in either case as reported in the principal consolidated
transaction reporting system with respect to securities listed or admitted to
trading on the
New York Stock Exchange or, if the Rights are not listed or
admitted to trading on the
New York Stock Exchange, as reported in the
principal consolidated transaction reporting system with respect to securities
listed on the principal national securities exchange on which the Rights are
listed or admitted to trading, or if the Rights are not listed or admitted to
trading on any national securities exchange, the last quoted price or, if not
so quoted, the average of the high bid and low asked prices in the over-the-
counter market, as reported by NASDAQ or such other system then in use or, if
on any such date the Rights are not quoted by any such organization, the
average of the closing bid and asked prices as furnished by a professional
market maker making a market in the Rights selected by the Board of Directors.
If on any such date no such market maker is making a market in the Rights the
fair value of the Rights on such date as determined in good faith by the Board
of Directors shall be used.
24
(b) The Company shall not be required to issue fractions of
shares of Preferred Stock (other than fractions which are integral multiples of
one one-hundredth of a share of Preferred Stock) upon exercise of the Rights or
to distribute certificates which evidence fractional shares of Preferred Stock
(other than fractions which are integral multiples of one one-hundredth of a
share of Preferred Stock). In lieu of fractional shares of Preferred Stock that
are not integral multiples of one one-hundredth of a share of Preferred Stock,
the Company may pay to the registered holders of Rights Certificates at the
time such Rights are exercised as herein provided an amount in cash equal to
the same fraction of the current market value of one one-hundredth of a share
of Preferred Stock. For purposes of this Section 14(b), the current market
value of one one-hundredth of a share of Preferred Stock shall be one
one-hundredth of the closing price of a share of Preferred Stock (as determined
pursuant to Section 11(d)(ii) hereof) for the Trading Day immediately prior to
the date of such exercise.
(c) Following the occurrence of a Triggering Event, the Company
shall not be required to issue fractions of shares of Voting Stock upon
exercise of the Rights or to distribute certificates which evidence fractional
shares of Voting Stock. In lieu of fractional shares of Voting Stock, the
Company may pay to the registered holders of Rights Certificates at the time
such Rights are exercised as herein provided an amount in cash equal to the
same fraction of the current market value of one (1) share of Marathon Stock or
one (1) share of Steel Stock, as the case may be. For purposes of this Section
14(c), the Current Market Value of one share of Marathon Stock or Steel Stock,
as the case may be, shall be the closing price of one share of such Marathon
Stock or Steel Stock for the Trading Day immediately prior to the date of such
exercise.
(d) The holder of a Right by the acceptance of the Rights
expressly waives his right to receive any fractional Rights or any fractional
shares upon exercise of a Right, except as permitted by this Section 14.
Section 15. Rights of Action. All rights of action in respect of this
Agreement are vested in the respective registered holders of the Rights
Certificates (and, prior to the Distribution Date, the registered holders of
the Voting Stock); and any registered holder of any Rights Certificate (or,
prior to the Distribution Date, of the Voting Stock), without the consent of
the Rights Agent or of the holder of any other Rights Certificate (or, prior to
the Distribution Date, of the Voting Stock), may, in his own behalf and for his
own benefit, enforce, and may institute and maintain any suit, action or
proceeding against the Company to enforce, or otherwise act in respect of, his
right to exercise the Rights evidenced by such Rights Certificate in the manner
provided in such Rights Certificate and in this Agreement. Without limiting the
foregoing or any remedies available to the holders of Rights, it is
specifically acknowledged that the holders of Rights would not have an adequate
remedy at law for any breach of this Agreement and shall be entitled to
specific performance of the obligations hereunder and injunctive relief against
actual or threatened violations of the obligations hereunder of any Person
subject to this Agreement.
Section 16. Agreement of Rights Holders. Every holder of a Right by
accepting the same consents and agrees with the Company and the Rights Agent
and with every other holder of a Right that:
(a) prior to the Distribution Date, the Rights will be
transferable only in connection with the transfer of Voting Stock;
25
(b) after the Distribution Date, the Rights Certificates are
transferable only on the registry books of the Rights Agent if surrendered at
the office or offices of the Rights Agent designated for such purposes, duly
endorsed or accompanied by a proper instrument of transfer and with the
appropriate forms and certificates fully executed;
(c) subject to Section 6(a) and Section 7(f) hereof, the Company
and the Rights Agent may deem and treat the person in whose name a Rights
Certificate (or, prior to the Distribution Date, the associated Voting Stock
certificate) is registered as the absolute owner thereof and of the Rights
evidenced thereby (notwithstanding any notations of ownership or writing on the
Rights Certificates or the associated Voting Stock certificate made by anyone
other than the Company or the Rights Agent) for all purposes whatsoever, and
neither the Company nor the Rights Agent, subject to the last sentence of
Section 7(e) hereof, shall be required to be affected by any notice to the
contrary; and
(d) notwithstanding anything in this Agreement to the contrary,
neither the Company nor the Rights Agent shall have any liability to any holder
of a Right or other Person as a result of its inability to perform any of its
obligations under this Agreement by reason of any preliminary or permanent
injunction or other order, decree or ruling issued by a court of competent
jurisdiction or by a governmental, regulatory or administrative agency or
commission, or any statute, rule, regulation or executive order promulgated or
enacted by any governmental authority, prohibiting or otherwise restraining
performance of such obligation; provided, however, the Company must use its
best efforts to have any such order, decree or ruling lifted or otherwise
overturned as soon as possible.
Section 17. Rights Certificate Holder Not Deemed a Stockholder. No
holder, as such, of any Rights Certificate shall be entitled to vote, receive
dividends or be deemed for any purpose the holder of the number of one
one-hundredths of a share of Preferred Stock or any other securities of the
Company which may at any time be issuable on the exercise of the Rights
represented thereby, nor shall anything contained herein or in any Rights
Certificate be construed to confer upon the holder of any Rights Certificate,
as such, any of the rights of a stockholder of the Company or any right to vote
for the election of directors or upon any matter submitted to stockholders at
any meeting thereof, or to give or withhold consent to any corporate action, or
to receive notice of meetings or other actions affecting stockholders (except
as provided in Section 24 hereof), or to receive dividends or subscription
rights, or otherwise, until the Right or Rights evidenced by such Rights
Certificate shall have been exercised in accordance with the provisions hereof.
Section 18. Concerning the Rights Agent.
(a) The Company agrees to pay to the Rights Agent reasonable
compensation for all services rendered by it hereunder and, from time to time,
on demand of the Rights Agent, its reasonable expenses and counsel fees and
disbursements and other disbursements incurred in the administration, execution
or amendment of this Agreement and the exercise and performance of its duties
hereunder. The Company also agrees to indemnify the Rights Agent for, and to
hold it harmless against, any loss, liability, damage, judgment, fine, penalty,
claim, demand, settlement, cost or expense, incurred without negligence, bad
faith or willful misconduct (as finally determined by a court of competent
jurisdiction) on the part of the Rights Agent, for anything done or omitted by
the Rights Agent in connection with the acceptance and administration of this
Agreement, including the costs and expenses of defending against any claim of
liability in the premises.
(b) The Rights Agent shall be protected and shall incur no
liability for or in respect of any action taken, suffered or omitted by it in
connection with its administration of this Agreement in reliance upon
26
any Rights Certificate or certificate for Voting Stock or for other securities
of the Company, instrument of assignment or transfer, power of attorney,
endorsement, affidavit, letter, notice, direction, consent, certificate,
statement, or other paper or document believed by it to be genuine and to be
signed, executed and, where necessary, verified or acknowledged, by the proper
Person or Persons.
(c) Anything in this Agreement to the contrary notwithstanding,
in no event shall the Rights Agent be liable for special, punitive, indirect,
incidental or consequential loss or damage of any kind whatsoever (including,
but not limited to, lost profits), even if the Rights Agent has been advised of
the possibility of such loss or damage.
Section 19. Merger or Consolidation or Change of Name of Rights
Agent.
(a) Any Person into which the Rights Agent or any successor
Rights Agent may be merged or with which it may be consolidated, or any Person
resulting from any merger or consolidation to which the Rights Agent or any
successor Rights Agent shall be a party, or any Person succeeding to the
shareholder services business of the Rights Agent or any successor Rights
Agent, shall be the successor to the Rights Agent under this Agreement without
the execution or filing of any paper or any further act on the part of any of
the parties hereto; provided, however, that such Person would be eligible for
appointment as a successor Rights Agent under the provisions of Section 21
hereof. In case at the time such successor Rights Agent shall succeed to the
agency created by this Agreement, any of the Rights Certificates shall have
been countersigned but not delivered, any such successor Rights Agent may adopt
the countersignature of a predecessor Rights Agent and deliver such Rights
Certificates so countersigned; and in case at that time any of the Rights
Certificates shall not have been countersigned, any successor Rights Agent may
countersign such Rights Certificates either in the name of the predecessor or
in the name of the successor Rights Agent; and in all such cases such Rights
Certificates shall have the full force provided in the Rights Certificates and
in this Agreement.
(b) In case at any time the name of the Rights Agent shall be
changed and at such time any of the Rights Certificates shall have been
countersigned but not delivered, the Rights Agent may adopt the
countersignature under its prior name and deliver Rights Certificates so
countersigned; and in case at that time any of the Rights Certificates shall
not have been countersigned, the Rights Agent may countersign such Rights
Certificates either in its prior name or in its changed name; and in all such
cases such Rights Certificates shall have the full force provided in the Rights
Certificates and in this Agreement.
Section 20. Duties of Rights Agent. The Rights Agent undertakes the
duties and obligations imposed by this Agreement upon the following terms and
conditions, by all of which the Company and the holders of Rights Certificates,
by their acceptance thereof, shall be bound.
(a) The Rights Agent may consult with legal counsel (who may be
legal counsel for the Company), and the advice or opinion of such counsel shall
be full and complete authorization and protection to the Rights Agent, and the
Rights Agent shall incur no liability for or in respect of, any action taken or
omitted by it in good faith and in accordance with such advice or opinion.
(b) Whenever in the performance of its duties under this
Agreement the Rights Agent shall deem it necessary or desirable that any fact
or matter (including, without limitation, the identity of any Acquiring Person
and the determination of Current Market Price) be proved or established by the
Company prior to taking or suffering any action
27
hereunder, such fact or matter (unless other evidence in respect thereof be
herein specifically prescribed) may be deemed to be conclusively proved and
established by a certificate signed by the Chairman of the Board, the
President, any Vice President, the Treasurer, any Assistant Treasurer, the
Secretary or any Assistant Secretary of the Company and delivered to the Rights
Agent; and such certificate shall be full authorization and protection to the
Rights Agent, and the Rights Agent shall incur no liability for or in respect
of, any action taken or suffered in good faith by it under the provisions of
this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder only for its own
negligence, bad faith or willful misconduct (as finally determined by a court
of competent jurisdiction).
(d) The Rights Agent shall not be liable for or by reason of any
of the statements of fact or recitals contained in this Agreement or in the
Rights Certificates or be required to verify the same (except as to its
countersignature on such Rights Certificates), but all such statements and
recitals are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be under any responsibility in
respect of the validity of this Agreement or the execution and delivery hereof
(except the due execution hereof by the Rights Agent) or in respect of the
validity or execution of any Rights Certificate (except its countersignature
thereof); nor shall it be responsible for any breach by the Company of any
covenant or condition contained in this Agreement or in any Rights Certificate;
nor shall it be responsible for any adjustment required under the provisions of
Section 11 or Section 13 hereof or responsible for the manner, method or amount
of any such adjustment or the ascertaining of the existence of facts that would
require any such adjustment (except with respect to the exercise of Rights
evidenced by Rights Certificates after actual notice of any such adjustment);
nor shall it by any act hereunder be deemed to make any representation or
warranty as to the authorization or reservation of any shares of Voting Stock
or Preferred Stock to be issued pursuant to this Agreement or any Rights
Certificate or as to whether any shares of Voting Stock or Preferred Stock
will, when so issued, be validly authorized and issued, fully paid and
nonassessable.
(f) The Company agrees that it will perform, execute,
acknowledge and deliver or cause to be performed, executed, acknowledged and
delivered all such further and other acts, instruments and assurances as may
reasonably be required by the Rights Agent for the carrying out or performing
by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from the
Chairman of the Board, the President, any Vice President, the Secretary, any
Assistant Secretary, the Treasurer or any Assistant Treasurer of the Company,
and to apply to such officers for advice or instructions in connection with its
duties, and it shall not be liable for any action taken or suffered to be taken
by it in good faith in accordance with instructions of any such officer.
(h) The Rights Agent and any stockholder, affiliate, director,
officer or employee of the Rights Agent may buy, sell or deal in any of the
Rights or other securities of the Company or become pecuniarily interested in
any transaction in which the Company may be interested, or contract with or
lend money to the Company or otherwise act as fully and freely as though it
were not Rights Agent under this Agreement. Nothing herein shall preclude the
Rights Agent from acting in any other capacity for the Company or for any other
Person.
28
(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 or any other Person
resulting from any such act, default, neglect or misconduct; provided, however,
reasonable care was exercised in the selection and continued employment
thereof.
(j) No provision of this Agreement shall require the Rights
Agent to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder or in the exercise
of its rights if there shall be reasonable grounds for believing that repayment
of such funds or adequate indemnification against such risk or liability is not
reasonably assured to it.
(k) If, with respect to any Rights Certificate surrendered to
the Rights Agent for exercise or transfer, the certificate attached to the form
of assignment or form of election to purchase, as the case may be, has either
not been completed or indicates an affirmative response to clause 1 and/or 2
thereof, the Rights Agent shall not take any further action with respect to
such requested exercise of transfer without first consulting with the Company.
Section 21. Change of Rights Agent. The Rights Agent or any successor
Rights Agent may resign and be discharged from its duties under this Agreement
upon thirty (30) days' notice in writing mailed to the Company, and to each
transfer agent of the Marathon Stock, Steel Stock and Preferred Stock, by
registered or certified mail, and to the holders of the Rights Certificates by
first-class mail. The Company may remove the Rights Agent or any successor
Rights Agent upon thirty (30) days' notice in writing, mailed to the Rights
Agent or successor Rights Agent, as the case may be, and to each transfer agent
of the Marathon Stock, Steel Stock and Preferred Stock, by registered or
certified mail, and to the holders of the Rights Certificates by first-class
mail. If the Rights Agent shall resign or be removed or shall otherwise become
incapable of acting, the Company shall appoint a successor to the Rights Agent.
If the Company shall fail to make such appointment within a period of thirty
(30) days after giving notice of such removal or after it has been notified in
writing of such resignation or incapacity by the resigning or incapacitated
Rights Agent or by the holder of a Rights Certificate (who shall, with such
notice, submit his Rights Certificate for inspection by the Company), then any
registered holder of any Rights Certificate may apply to any court of competent
jurisdiction for the appointment of a new Rights Agent. Any successor Rights
Agent, whether appointed by the Company or by such a court, shall be (a) a
Person organized and doing business under the laws of the United States or of
any state thereof so long as such Person is authorized to do business in the
State of
New York and is subject to supervision or examination by federal or
state authority and which has at the time of its appointment as Rights Agent a
combined capital and surplus of at least $50,000,000 or (b) any affiliate
thereof. After appointment, the successor Rights Agent shall be vested with the
same powers, rights, duties and responsibilities as if it had been originally
named as Rights Agent without further act or deed; but the predecessor Rights
Agent shall deliver and transfer to the successor Rights Agent any property at
the time held by it hereunder, and execute and deliver any further assurance,
conveyance, act or deed necessary for the purpose. Not later than the effective
date of any such appointment, the Company shall file notice thereof in writing
with the predecessor Rights Agent and each transfer agent of the Marathon
Stock, Steel Stock and the Preferred Stock, and mail a notice thereof in
writing to the registered holders of the Rights Certificates. Failure to give
any notice provided for in this Section 21, however, or any defect therein,
shall not affect the legality or validity of the resignation or removal of the
Rights Agent or the appointment of the successor Rights Agent, as the case may
be.
29
Section 22. Issuance of New Rights Certificates. Notwithstanding any
of the provisions of this Agreement or of the Rights to the contrary, the
Company may, at its option, issue new Rights Certificates evidencing Rights in
such form as may be approved by its Board of Directors to reflect any
adjustment or change in the Purchase Price and the number or kind or class of
shares or other securities or property purchasable under the Rights
Certificates made in accordance with the provisions of this Agreement. In
addition, in connection with the issuance or sale of shares of Voting Stock
following the Distribution Date and prior to the redemption or expiration of
the Rights, the Company (a) shall, with respect to shares of Voting Stock so
issued or sold pursuant to the exercise of stock options or under any employee
plan or arrangement outstanding, granted or awarded prior to the Distribution
Date, or upon the exercise, conversion or exchange of securities hereinafter
issued by the Company, and (b) may, in any other case, if deemed necessary or
appropriate by the Board of Directors, issue Rights Certificates representing
the appropriate number of Rights in connection with such issuance or sale;
provided, however, that (i) no such Rights Certificate shall be issued if, and
to the extent that, the Company shall be advised by counsel that such issuance
would create a significant risk of material adverse tax consequences to the
Company or the Person to whom such Rights Certificate would be issued, and (ii)
no such Rights Certificate shall be issued if, and to the extent that,
appropriate adjustment shall otherwise have been made in lieu of the issuance
thereof.
Section 23. Redemption and Termination.
(a) The Board of Directors may, at its option, at any time prior
to the earlier of (i) the close of business on the tenth Business Day following
the Stock Acquisition Date (or, if the Stock Acquisition Date shall have
occurred prior to the Record Date, the close of business on the tenth Business
Day following the Record Date), or (ii) the Final Expiration Date, redeem all
but not less than all of the then outstanding Rights at a redemption price of
$.01 per Right, as such amount may be appropriately adjusted to reflect any
stock split, stock dividend or similar transaction occurring after the date
hereof (such redemption price being hereinafter referred to as the "Redemption
Price"). To encourage third parties seeking to acquire the Company to make a
non-coercive offer which will maximize value for all stockholders, the Board of
Directors shall consider, in determining whether to redeem the Rights in
connection with any proposal or offer, whether such proposal or offer meets the
requirements of a Qualifying Offer, and, if not, in which respects such offer
or proposal fails to meet such requirements. The Company may, at its option,
pay the Redemption Price in cash, shares of Marathon Stock or Steel Stock
(based on the Current Market Price of such shares at the time of redemption) or
any other form of consideration deemed appropriate by the Board of Directors.
Notwithstanding anything contained in this Agreement to the contrary, the
Rights shall not be exercisable after the first occurrence of a Section
11(a)(ii) Event until such time as the Company's right of redemption hereunder
has expired.
(b) Immediately upon the action of the Board of Directors
ordering the redemption of the Rights, evidence of which shall have been filed
with the Rights Agent and without any further action and without any notice,
the right to exercise the Rights will terminate and the only right thereafter
of the holders of Rights shall be to receive the Redemption Price for each
Right so held. Promptly after the action of the Board of Directors ordering the
redemption of the Rights, the Company shall give notice of such redemption to
the Rights Agent and the holders of the then outstanding Rights by mailing such
notice to all such holders at each holder's last address as it appears upon the
registry books of the Rights Agent or, prior to the Distribution Date, on the
registry books of the Transfer Agent for each of the Marathon Stock and Steel
Stock. Any notice
30
which is mailed in the manner herein provided shall be deemed given, whether or
not the holder receives the notice. Each such notice of redemption will state
the method by which the payment of the Redemption Price will be made.
Section 24. Notice of Certain Events.
(a) In case the Company shall propose, at any time after the
Distribution Date, (i) to pay any dividend payable in stock of any class to the
holders of Preferred Stock or to make any other distribution to the holders of
Preferred Stock (other than a regular quarterly cash dividend out of earnings
or retained earnings of the Company), or (ii) to offer to the holders of
Preferred Stock rights or warrants to subscribe for or to purchase any
additional shares of Preferred Stock or shares of stock of any class or any
other securities, rights or options, or (iii) to effect any reclassification of
its Preferred Stock (other than a reclassification involving only the
subdivision of outstanding shares of Preferred Stock), or (iv) to effect any
consolidation or merger into or with any other Person (other than a Subsidiary
of the Company in a transaction which complies with Section 11(o) hereof), or
to effect any sale or other transfer (or to permit one or more of its
Subsidiaries to effect any sale or other transfer), in one transaction or a
series of related transactions, of more than 50% of the assets, earning power
or cash flow of the Company and its Subsidiaries (taken as a whole) to any
other Person or Persons (other than the Company and/or any of its Subsidiaries
in one or more transactions each of which complies with Section 11(o) hereof),
or (v) to effect the liquidation, dissolution or winding up of the Company,
then, in each such case, the Company shall give to each holder of a Rights
Certificate, to the extent feasible and in accordance with Section 25 hereof, a
notice of such proposed action, which shall specify the record date for the
purposes of such stock dividend, distribution of rights or warrants, or the
date on which such reclassification, consolidation, merger, sale, transfer,
liquidation, dissolution, or winding up is to take place and the date of
participation therein by the holders of the shares of Preferred Stock, if any
such date is to be fixed, and such notice shall be so given in the case of any
action covered by clause (i) or (ii) above at least twenty (20) days prior to
the record date for determining holders of the shares of Preferred Stock for
purposes of such action, and in the case of any such other action, at least
twenty (20) days prior to the date of the taking of such proposed action or the
date of participation therein by the holders of the shares of Preferred Stock,
whichever shall be the earlier.
(b) In case any Section 11(a)(ii) Event hereof shall occur,
then, in any such case, (i) the Company shall as soon as practicable thereafter
give to each holder of a Rights Certificate, to the extent feasible and in
accordance with Section 25 hereof, a notice of the occurrence of such event,
which shall specify the event and the consequences of the event to holders of
Rights under Section 11(a)(ii) hereof, and (ii) all references in the preceding
paragraph to Preferred Stock shall be deemed thereafter to refer to Voting
Stock and/or, if appropriate, other securities.
Section 25. Notices. Notices or demands authorized by this Agreement
to be given or made by the Rights Agent or by the holder of any Rights
Certificate to or on the Company shall be sufficiently given or made if sent by
first-class mail, postage prepaid, addressed (until another address is filed in
writing with the Rights Agent) as follows:
USX Corporation
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Corporate Secretary
31
Subject to the provisions of Section 21, any notice or demand authorized by
this Agreement to be given or made by the Company or by the holder of any
Rights Certificate to or on the Rights Agent shall be sufficiently given or
made if sent by first-class mail, postage prepaid, addressed (until another
address is filed in writing with the Company) as follows:
ChaseMellon Shareholder Services, L.L.C.
One Mellon Bank Center
000 Xxxxx Xxxxxx
Xxxx 0000
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Relationship Manager
Notices or demands authorized by this Agreement to be given or made by the
Company or the Rights Agent to the holder of any Rights Certificate (or, if
prior to the Distribution Date, to the holder of certificates representing
shares of Voting Stock) shall be sufficiently given or made if sent by
first-class mail, postage prepaid, addressed to such holder at the address of
such holder as shown on the registry books of the Company.
In the event that the Company is required to make a public announcement or
provide notice to the holders of Rights Certificates pursuant to any provision
of this Agreement, it shall provide such announcement or notice to the Rights
Agent on or prior to the date of such announcement or provision of notice.
Section 26. Supplements and Amendments. Prior to the Distribution
Date, and subject to the last sentence of this Section 26, the Company and the
Rights Agent shall, if the Company so directs, supplement or amend any
provision of this Agreement without the approval of any holders of certificates
representing shares of Voting Stock. From and after the Distribution Date, the
Company and the Rights Agent shall, if the Company so directs, supplement or
amend this Agreement without the approval of any holders of Rights Certificates
in order (i) to cure any ambiguity, (ii) to correct or supplement any provision
contained herein which may be defective or inconsistent with any other
provisions herein, (iii) to shorten or lengthen any time period hereunder, or
(iv) to change or supplement the provisions hereunder in any manner which the
Company may deem necessary or desirable and which shall not adversely affect
the interests of the Rights Agent or the holders of Rights Certificates (other
than an Acquiring Person or an Affiliate or Associate of an Acquiring Person);
provided, this Agreement may not be supplemented or amended to lengthen,
pursuant to clause (iii) of this sentence, (A) a time period relating to when
the Rights may be redeemed at such time as the Rights are not then redeemable,
or (B) any other time period, unless such lengthening is for the purpose of
protecting, enhancing or clarifying the rights of, and/or the benefits to, the
holders of Rights. Upon the delivery of a certificate from an appropriate
officer of the Company which states that the proposed supplement or amendment
is in compliance with the terms of this Section 26 and provided such supplement
or amendment does not adversely affect the Rights Agent's duties, liabilities
or obligations hereunder, the Rights Agent shall execute such supplement or
amendment. Prior to the Distribution Date, the interests of the holders of
Rights shall be deemed coincident with the interests of the holders of Voting
Stock. Notwithstanding anything herein to the contrary, this Agreement may not
be amended at a time when the Rights are not redeemable.
Section 27. Successors. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Rights Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder.
Section 28. Determinations and Actions by the Board of Directors,
etc. For all purposes of this Agreement, any calculation of the Voting Power or
the number of shares of Voting Stock outstanding at any
32
particular time, including for purposes of determining the particular
percentage of Voting Power or such outstanding shares of Voting Stock of which
any Person is the Beneficial Owner, shall be made in accordance with the last
sentence of Rule 13d-3(d)(1)(i) of the General Rules and Regulations under the
Exchange Act. The Board of Directors shall have the exclusive power and
authority to administer this Agreement and to exercise all rights and powers
specifically granted to the Board of Directors or to the Company, or as may be
necessary or advisable in the administration of this Agreement, including,
without limitation, the right and power to (i) interpret the provisions of this
Agreement, (ii) make all determinations deemed necessary or advisable for the
administration of this Agreement (including a determination to redeem or not
redeem the Rights or to amend the Agreement) and (iii) calculate from time to
time the Voting Power and the relative voting power of the Marathon Stock and
the Steel Stock, in accordance with the Company's Restated Certificate of
Incorporation. All such actions, calculations, interpretations and
determinations (including, for purposes of clause (y) below, all omissions with
respect to the foregoing) which are done or made by the Board of Directors in
good faith, shall (x) be final, conclusive and binding on the Company, the
Rights Agent, the holders of the Rights and all other Persons, and (y) not
subject the Board of Directors or any directors on the Board of Directors to
any liability to the holders of the Rights. Nothing contained in this Agreement
shall be deemed to be in derogation of the obligation of the Board of Directors
to exercise its fiduciary duty or shall be construed to suggest or imply that
the Board of Directors shall not be entitled to reject any Qualifying Offer, or
to recommend that holders of shares of Voting Stock reject any Qualifying
Offer, or to take any other action (including, without limitation, commencing,
prosecuting, defending or settling any litigation, recommending that
stockholders tender into any other offer, taking any action permitted under any
applicable state laws or proposing or engaging, at any time, in any
acquisition, disposition or other transfer of any securities of the Company,
any merger or consolidation involving the Company, any sale or other transfer
of assets of the Company, any recapitalization, liquidation, dissolution or
winding up of the Company, or any other business combination or other
transaction) with respect to any Qualifying Offer that the Board of Directors
believes is necessary or appropriate in the exercise of such fiduciary duty.
Section 29. Exchange.
(a) The Board of Directors may, at its option, at any time after
any Person becomes an Acquiring Person, exchange all or part of the then
outstanding and exercisable Marathon Rights and Steel Rights (which shall not
include Rights that have become void pursuant to the provision of Section 7(e)
hereof), as the case may be, for shares of Marathon Stock or Steel Stock,
respectively, at an exchange ratio of one share of Marathon Stock per Marathon
Right and one share of Steel Stock per Steel Right, and appropriately adjusted
to reflect any stock split, stock dividend or similar transaction occurring
after the date hereof (such exchange ratio being hereinafter referred to as the
"Exchange Ratio"). Notwithstanding the foregoing, the Board of Directors shall
not be empowered to effect such exchange at any time after any Person (other
than the Company, any Subsidiary of the Company, any employee benefit plan of
the Company or any such Subsidiary, or any entity holding shares of Voting
Stock for or pursuant to the terms of any such plan), together with all
Affiliates and Associates of such Person, becomes the Beneficial Owner of
shares of Voting Stock representing 50% or more of the Voting Power of the
Company.
(b) Immediately upon the action of the Board of Directors
ordering the exchange of any Rights pursuant to subsection (a) of this Section
29 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
Marathon Rights and Steel Rights, as the case may be, shall be to receive that
number of shares of Marathon Stock and Steel Stock,
33
respectively, 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 shares of Voting
Stock for Rights will be effected and, in the event of any partial exchange,
the number of Rights which will be exchanged. Any partial exchange shall be
affected pro rata based on the number of Rights (other than Rights which have
become void pursuant to the provisions of Section 7(e) hereof) held by each
holder of Rights.
(c) In any exchange pursuant to this Section 29, the Company, at
its option, may substitute Preferred Stock (or Equivalent Preferred Stock, as
such term is defined in Section 11(b) hereof) for shares of Voting Stock
exchangeable for Rights, at the initial rate of one one-hundredths of a share
of Preferred Stock (or Equivalent Preferred Stock) for each share of Voting
Stock, as appropriately adjusted to reflect stock splits, stock dividends or
other similar transactions after the date hereof.
(d) In the event that there shall not be sufficient shares of
Voting Stock issued but not outstanding or authorized but unissued to permit
any exchange of Rights as contemplated in accordance with this Section 29, the
Company shall take all such action as may be necessary to authorize additional
shares of Marathon Stock or Steel Stock, as the case may be, for issuance upon
exchange of the Rights.
(e) The Company shall not be required to issue fractions of
shares of Voting Stock or to distribute certificates which evidence fractional
shares of Voting Stock. In lieu of such fractional shares of Voting Stock,
there shall be paid to the registered holders of the Rights Certificates with
regard to which such fractional shares of Voting Stock would otherwise be
issuable, an amount in cash equal to the same fraction of the current market
value of a whole share of Marathon Stock or Steel Stock, as the case may be.
For the purposes of this subsection (e), the current market value of a whole
share of Marathon Stock or Steel Stock shall be the closing price of such share
of Marathon Stock or Steel Stock (as determined pursuant to Section 11(d)(i)
hereof) for the Trading Day immediately prior to the date of exchange pursuant
to this Section 29.
Section 30. Benefits of this Agreement. Nothing in this Agreement
shall be construed to give to any Person other than the Company, the Rights
Agent and the registered holders of the Rights Certificates (and, prior to the
Distribution Date, registered holders of the Voting Stock) any legal or
equitable right, remedy or claim under this Agreement; but this Agreement shall
be for the sole and exclusive benefit of the Company, the Rights Agent and the
registered holders of the Rights Certificates (and, prior to the Distribution
Date, registered holders of the Voting Stock).
Section 31. Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated;
provided, however, that notwithstanding anything in this Agreement to the
contrary, if any such term, provision, covenant or restriction is held by such
court or authority to be invalid, void or unenforceable and the Board of
Directors determines in its good faith
34
judgment that severing the invalid language from this Agreement would adversely
affect the purpose or effect of this Agreement, the right of redemption set
forth in Section 23 hereof (if it has expired) shall be reinstated and shall
not expire until the close of business on the tenth day following the date of
such determination by the Board of Directors and the Company shall promptly
notify the Rights Agent of such reinstatement.
Section 32. Governing Law. This Agreement, each Right and each Rights
Certificate issued hereunder shall be deemed to be a contract made under the
laws of the State of Delaware and for all purposes shall be governed by and
construed in accordance with the laws of such State applicable to contracts
made and to be performed entirely within such State; provided, however, that
all provisions regarding the rights, duties and obligations of the Rights Agent
shall be governed by and construed in accordance with the laws of the State of
New York applicable to contracts made and to be performed entirely within such
State.
Section 33. Counterparts. This Agreement may be executed in any
number of counterparts and each of such counterparts shall for all purposes be
deemed to be an original, and all such counterparts shall together constitute
but one and the same instrument.
Section 34. Descriptive Headings. Descriptive headings of the several
Sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
USX CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President & Comptroller
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
By: /s/ Xxxxxxx Xxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
35
Exhibit A
SUMMARY OF RIGHTS TO PURCHASE
PREFERRED STOCK
On September 28, 1999, the Board of Directors of USX Corporation (the
"Company") adopted a Stockholder Rights Plan and declared a dividend
distribution of (i) one USX-U.S. Steel Group Right (a "Steel Right") for each
outstanding share of USX-U.S. Steel Group Common Stock ("Steel Stock") and (ii)
one USX-Marathon Group Right (a "Marathon Right" and, together with the Steel
Rights, the "Rights") for each share of USX-Marathon Group Common Stock
("Marathon Stock" and, together with the Steel Stock, the "Voting Stock") to
stockholders of record at the close of business on October 9, 1999 (the "Record
Date"). Each Right entitles the registered holder to purchase from the Company
a unit consisting of one one-hundredth of a share (a "Unit") of Series A Junior
Preferred Stock, no par value (the "Preferred Stock"), at a Purchase Price of
$110 in cash per Unit, subject to adjustment. The description and terms of the
Rights are set forth in a Rights Agreement (the "Rights Agreement") between the
Company and ChaseMellon Shareholder Services, L.L.C., a New Jersey limited
liability company, as Rights Agent.
Initially, the Marathon Rights and the Steel Rights will be attached to
all certificates representing shares of Marathon Stock and Steel Stock,
respectively, then outstanding, and no separate Rights Certificates will be
distributed. Subject to certain exceptions specified in the Rights Agreement,
the Marathon Rights and the Steel Rights will separate from the certificates
representing shares of Marathon Stock and Steel Stock, respectively, and a
Distribution Date will occur upon the earlier of (i) 10 business days following
a public announcement that a person or group of affiliated or associated
persons (an "Acquiring Person") has acquired, or obtained the right to acquire,
beneficial ownership of Voting Stock representing 15% or more of the
outstanding Voting Power of the Company (the "Stock Acquisition Date") other
than as a result of the Company's calculation from time to time of the relative
voting rights of the Marathon Stock and Steel Stock, repurchases of stock by
the Company or certain inadvertent actions by institutional or certain other
stockholders, or (ii) 10 business days (or such later date as the Board of
Directors shall determine) following the commencement of a tender offer or
exchange offer that would result in a person or group becoming an Acquiring
Person. Until the Distribution Date, (i) the Marathon Rights and the Steel
Rights will be evidenced by the certificates representing shares of Marathon
Stock and Steel Stock, respectively, and will be transferred with and only with
such certificates, (ii) new Marathon Stock and Steel Stock certificates issued
after the Record Date will contain a notation incorporating the Rights
Agreement by reference and (iii) the surrender for transfer of any certificates
for Marathon Stock and Steel Stock outstanding will also constitute the
transfer of the Marathon Rights and Steel Rights, respectively, associated with
the Marathon Stock and Steel Stock represented by such certificate.
The Rights are not exercisable until the Distribution Date and will expire
at the close of business on October 9, 2009, unless such date is extended or
the Rights are earlier redeemed or exchanged by the Company as described below.
Pursuant to the Rights Agreement, the Company reserves the right to require
prior to the occurrence of a Triggering Event (as defined below) that, upon any
exercise of Rights, a number of Rights be exercised so that only whole shares
(or fractions which are integral multiples of one one-hundredth of a share) of
Preferred Stock will be issued.
As soon as practicable after the Distribution Date, Certificates for
Marathon Rights and Steel Rights will be mailed to holders of record of the
Marathon Stock and Steel Stock, respectively, as of the close of business on
the Distribution Date and, thereafter, the separate Certificates for Marathon
Rights and Steel Rights alone will represent the Marathon Rights and Steel
Rights, respectively. Except as otherwise determined by the Board of Directors,
Rights will be issued in connection with all shares of Voting Stock issued by
the Company, including shares of Voting Stock issued upon the exercise of
employee stock options or the conversion of convertible securities issued after
October 9, 1999 but prior to the Distribution Date.
36
In the event that a Person becomes an Acquiring Person, except pursuant to
a Qualifying Offer (as defined below), each holder of a Marathon Right or Steel
Right (other than the Acquiring Person and certain related parties) will
thereafter have the right to receive, upon exercise, Marathon Stock or Steel
Stock, respectively (or, in certain circumstances, cash, property or other
securities of the Company) having a value equal to two times the exercise price
of the Marathon Right or Steel Right. However, Rights are not exercisable until
such time as the Rights are no longer redeemable by the Company, as set forth
below. A "Qualifying Offer" is defined as an all-cash tender offer for all
outstanding Marathon Stock and Steel Stock that is fully financed, remains open
for a period of at least 45 Business Days, results in the offeror owning shares
of Voting Stock representing a majority of the Voting Power as of the day
immediately prior to the date of announcement of such offer, assures a prompt
second- step acquisition of shares not purchased in the initial offer at the
same price as the initial offer and meets certain other requirements.
For example, at an exercise price of $110 per Right, each Marathon Right
or Steel Right not owned by an Acquiring Person (or by certain related parties)
following an event set forth in the preceding paragraph would entitle its
holder to purchase $220 worth of Marathon Stock or Steel Stock, respectively
(or other consideration, as noted above) for $110. Assuming that the Marathon
Stock or Steel Stock, respectively, as the case may be, had a per share value
of $55 at such time, the holder of each valid Marathon Right or Steel Right
would be entitled to purchase four shares of Marathon Stock or Steel Stock,
respectively, for $110.
In the event that, at any time following the Stock Acquisition Date, (i)
the Company engages in a merger or other business combination transaction in
which the Company is not the surviving corporation, (ii) the Company engages in
a merger or other business transaction in which the Company is the surviving
corporation and the Voting Stock is changed or exchanged, or (iii) 50% or more
of the Company's assets or earning power is sold or transferred, each holder of
a Right (other than Rights that previously have been voided as set forth above)
shall thereafter have the right to receive, upon exercise, Common Stock of the
acquiring company having a value equal to two times the exercise price of the
Right. The events set forth in this paragraph and in the second preceding
paragraph are referred to as the "Triggering Events."
The Purchase Price payable, and the number of Units of Preferred Stock or
other securities or property issuable, upon exercise of the Rights are subject
to adjustment from time to time to prevent dilution (i) in the event of a stock
dividend on, or a subdivision, combination or reclassification of, the
Preferred Stock, (ii) if holders of the Preferred Stock are granted certain
rights or warrants to subscribe for Preferred Stock or convertible securities
at less than the Current Market Price of the Preferred Stock, or (iii) upon the
distribution to holders of the Preferred Stock of evidences of indebtedness or
assets (excluding regular quarterly cash dividends) or of subscription rights
or warrants (other than those referred to above).
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments amount to at least 1% of the Purchase
Price. No fractional Units will be issued and, in lieu thereof, an adjustment
in cash will be made based on the market price of the Preferred Stock on the
last trading date prior to the date of exercise.
Up to and including the tenth business day after the Stock Acquisition
Date (subject to extension), the Company may redeem the Rights in whole, but
not in part, at a price of $.01 per Right payable in stock or cash or
37
any other form of consideration deemed appropriate by the Board of Directors
(the "Redemption Price"). Immediately upon the action of the Board of Directors
ordering redemption of the Rights, the Rights will terminate and the only right
of the holders of Rights will be to receive the Redemption Price.
The Board of Directors may, at its option, at any time after any Person
becomes an Acquiring Person, exchange all or part of the outstanding and
exercisable Marathon Rights and Steel Rights (other than Rights held by the
Acquiring Person and certain related parties) for shares of Marathon Stock or
Steel Stock, respectively, at an exchange ratio of one share of Marathon Stock
or Steel Stock per Marathon Right or Steel Right, respectively (subject to
certain anti-dilution adjustments). However, the Board of Directors may not
effect such an exchange at any time any Person or group owns Voting Stock
representing 50% or more of the Voting Power of the Company then outstanding.
Immediately after the Board of Directors orders such an exchange, the right to
exercise the Marathon Rights and Steel Rights shall terminate and the holders
of Marathon Rights and Steel Rights shall thereafter only be entitled to
receive shares of Marathon Stock and Steel Stock, respectively, at the
applicable exchange ratio.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company, including, without limitation, the
right to vote or to receive dividends. While the distribution of the Rights
will not be taxable to stockholders or to the Company, stockholders may,
depending upon the circumstances, recognize taxable income in the event that
the Marathon Rights and Steel Rights become exercisable for Marathon Stock or
Steel Stock, respectively (or other consideration), of the Company or for
Common Stock of the acquiring company as set forth above.
Any of the provisions of the Rights Agreement may be amended by the Board
of Directors prior to the Distribution Date. After the Distribution Date, the
provisions of the Rights Agreement may be amended by the Board of Directors in
order to cure any ambiguity, to make changes which do not adversely affect the
interests of holders of Rights, or to shorten or lengthen any time period under
the Rights Agreement. The foregoing notwithstanding, no amendment may be made
at such time as the Rights are not redeemable.
A copy of the Rights Agreement is being filed with the Securities and
Exchange Commission as an Exhibit to a Registration Statement on Form 8-A. A
copy of the Rights Agreement is available free of charge from the Rights Agent.
This summary description of the Rights does not purport to be complete and is
qualified in its entirety by reference to the Rights Agreement, which is
incorporated herein by reference.
38
Exhibit B
[Form of Rights Certificate]
Certificate No- R- _________ Rights
NOT EXERCISABLE AFTER OCTOBER 9, 2009 UNLESS EXTENDED PRIOR THERETO BY THE
BOARD OF DIRECTORS OR EARLIER IF REDEEMED BY THE COMPANY. THE RIGHTS ARE
SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT $.01 PER RIGHT ON THE
TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS
BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS SUCH TERM IS DEFINED IN THE
RIGHTS AGREEMENT) AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND
VOID. [THE RIGHTS REPRESENTED BY THIS RIGHTS CERTIFICATE ARE OR WERE
BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN
AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE
RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHTS CERTIFICATE AND THE RIGHTS
REPRESENTED HEREBY MAY BECOME NULL AND VOID IN THE CIRCUMSTANCES SPECIFIED IN
SECTION 7(e) OF SUCH AGREEMENT.] (1)
------------------
(1) The portion of the legend in brackets shall be inserted only if applicable
and shall replace the preceding sentence.
Rights Certificate
USX CORPORATION
This certifies that
, or registered assigns, is the registered owner of the number of Rights set
forth above, each of which entitles the owner thereof, subject to the terms,
provisions and conditions of the Rights Agreement, dated as of September 28,
1999 (the "Rights Agreement"), between USX Corporation, a Delaware corporation
(the "Company"), and ChaseMellon Shareholder Services, L.L.C., a New Jersey
limited liability company (the "Rights Agent"), to purchase from the Company at
any time prior to 5:00 P.M. (
New York City time) on October 9, 2009 (unless
extended prior thereto by the Board of Directors) at the office or offices of
the Rights Agent designated for such purpose, or its successors as Rights
Agent, one one-hundredth of a fully paid, non-assessable share of Series A
Junior Preferred Stock (the "Preferred Stock") of the Company, at a purchase
price of $110 in cash per one one-hundredth of a share (the "Purchase Price"),
upon presentation and surrender of this Rights Certificate with the Form of
Election to Purchase and related Certificate duly executed. The number of
Rights evidenced by this Rights Certificate (and the number of shares that may
be purchased upon exercise thereof) set forth above, and the Purchase Price per
share set forth above, are the number and Purchase Price as of October 9, 1999,
based on the Preferred Stock as constituted at such date. Pursuant to the
Rights Agreement, the Company reserves the right to require prior to the
occurrence of a Triggering Event (as such term is defined in the Rights
Agreement) that, upon any exercise of Rights, a number of Rights be exercised
so that only whole shares of Preferred Stock will be issued.
Upon the occurrence of a Section 11(a)(ii) Event (as such term is defined
in the Rights Agreement), if the Rights evidenced by this Rights Certificate
are beneficially owned by (i) an Acquiring Person or an Affiliate or Associate
of any such Acquiring Person (as such terms are defined in the Rights
Agreement), (ii) a transferee of any such Acquiring Person, Associate or
Affiliate, or (iii) under certain circumstances specified in the Rights
Agreement, a transferee of a person who, after such transfer, became an
Acquiring Person or an Affiliate or Associate of an Acquiring Person, such
Rights shall become null and void and no holder hereof shall have any right
with respect to such Rights from and after the occurrence of such Section
11(a)(ii) Event.
As provided in the Rights Agreement, the Purchase Price and the number and
kind of shares of Preferred Stock or other securities, which may be purchased
upon the exercise of the Rights evidenced by this Rights Certificate are
subject to modification and adjustment upon the happening of certain events,
including Triggering Events.
This Rights Certificate is subject to all of the terms, provisions and
conditions of the Rights Agreement, which terms, provisions and conditions are
hereby incorporated herein by reference and made a part hereof and to which
Rights Agreement reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities hereunder of the
Rights Agent, the Company and the holders of the Rights Certificates, which
limitations of rights including the temporary suspension of the exercisability
of such Rights under the specific
39
circumstances set forth in the Rights Agreement. Copies of the Rights Agreement
are on file at the office of the Rights Agent designated for such purpose and
are also available upon written request to the Rights Agent.
This Rights Certificate, with or without other Rights Certificates, upon
surrender at the office or offices of the Rights Agent designated for such
purpose, may be exchanged for another Rights Certificate or Rights Certificates
of like tenor and date evidencing Rights entitling the holder to purchase a
like aggregate number of one one-hundredths of a share of Preferred Stock as
the Rights evidenced by the Rights Certificate or Rights Certificates
surrendered shall have entitled such holder to purchase. If this Rights
Certificate shall be exercised in part, the holder shall be entitled to receive
upon surrender hereof another Rights Certificate or Rights Certificates for the
number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights evidenced by
this Certificate may be redeemed by the Company at its option at a redemption
price of $.01 per Right (payable in cash or stock or any other form of
consideration deemed appropriate by the Board of Directors as set forth in the
Rights Agreement) (the "Redemption Price") at any time prior to the earlier of
the close of business on (i) the tenth Business Day following the Stock
Acquisition Date (as such time period may be extended pursuant to the Rights
Agreement), and (ii) the Final Expiration Date. In addition, under certain
circumstances following the Stock Acquisition Date, the Rights may be
exchanged, in whole or in part, for shares of the Voting Stock, or shares of
preference stock of the Company having essentially the same value or economic
rights as such shares. Immediately upon the action of the Board of Directors
authorizing any such exchange, and without any further action or any notice,
the Rights (other than Rights which are not subject to such exchange) will
terminate and the Rights will only enable holders to receive the shares
issuable upon such exchange.
No fractional shares of Preferred Stock will be issued upon the exercise
of any Right or Rights evidenced hereby (other than fractions which are
integral multiples of one one-hundredth of a share of Preferred Stock, which
may, at the election of the Company, be evidenced by depositary receipts), but
in lieu thereof a cash payment will be made, as provided in the Rights
Agreement. The Company, at its election, may require that a number of Rights be
exercised so that only whole shares of Preferred Stock would be issued.
No holder of this Rights Certificate shall be entitled to vote or receive
dividends or be deemed for any purpose the holder of shares of Preferred Stock
or of any other securities of the Company which may at any time be issuable on
the exercise hereof, nor shall anything contained in the Rights Agreement or
herein be construed to confer upon the holder hereof, as such, any of the
rights of a stockholder of the Company or any right to vote for the election of
directors or upon any matter submitted to stockholders at any meeting thereof,
or to give or withhold consent to any corporate action, or to receive notice of
meetings or other actions affecting stockholders (except as provided in the
Rights Agreement), or to receive dividends or subscription rights, or
otherwise, until the Right or Rights evidenced by this Rights Certificate shall
have been exercised as provided in the Rights Agreement.
This Rights Certificate shall not be valid or obligatory for any purpose
until it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the Company and
its corporate seal.
Dated as of _________________, ____
40
ATTEST: USX CORPORATION
By
----------------------------- ---------------------------
Secretary Title:
Countersigned:
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
By _____________________________
Authorized Signature
[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Rights Certificate)
FOR VALUE RECEIVED ______________________________ hereby sells, assigns and
transfers unto ____________________________________
----------------------------------------------------------------------
(Print name and address of transferee)
----------------------------------------------------------------------
this Rights Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint ___________, Attorney, to
transfer the within Rights Certificate on the books of the within-named
Company, with full power of substitution.
Dated: ____________, _____
---------------------------------
Signature
Signature Guaranteed:
Certificate
The undersigned hereby certifies by checking the appropriate boxes that:
(1) this Rights Certificate [ ] is [ ] is not being sold, assigned and
transferred by or on behalf of a Person who is or was an Acquiring Person or an
Affiliate or Associate of any such Acquiring Person (as such terms are defined
pursuant to the Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned, it [ ]
did [ ] did not acquire the Rights evidenced by this Rights Certificate from
any Person who is, was or subsequently became an Acquiring Person or an
Affiliate or Associate of an Acquiring Person.
Dated: ,
------------ ----- -------------------------------
Signature
Signature Guaranteed:
41
NOTICE
The signature to the foregoing Assignment and Certificate must correspond
to the name as written upon the face of this Rights Certificate in every
particular, without alteration or enlargement or any change whatsoever.
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to
exercise Rights represented by the
Rights Certificate)
To: USX CORPORATION:
The undersigned hereby irrevocably elects to exercise ______ Rights
represented by this Rights Certificate to purchase the shares of Preferred
Stock issuable upon the exercise of the Rights (or such other securities of the
Company or of any other person which may be issuable upon the exercise of the
Rights) and requests that certificates for such shares be issued in the name of
and delivered to:
Please insert social security
or other identifying number
--------------------------------------------------------------------
(Please print name and address)
--------------------------------------------------------------------
If such number of Rights shall not be all the Rights evidenced by this
Rights Certificate, a new Rights Certificate for the balance of such Rights
shall be registered in the name of and delivered to:
Please insert social security
or other identifying number
-------------------------------------------------------------------
(Please print name and address)
-------------------------------------------------------------------
Dated: ,
------------ -----
------------------------------
Signature
Signature Guaranteed:
Certificate
The undersigned hereby certifies by checking the appropriate boxes that:
(1) the Rights evidenced by this Rights Certificate [ ] are [ ] are not
being exercised by or on behalf of a Person who is or was an Acquiring Person
or an Affiliate or Associate of any such Acquiring Person (as such terms are
defined pursuant to the Rights Agreement);
42
(2) after due inquiry and to the best knowledge of the undersigned, it [ ]
did [ ] did not acquire the Rights evidenced by this Rights Certificate from
any Person who is, was or became an Acquiring Person or an Affiliate or
Associate of an Acquiring Person.
Dated: , 19
------------ -------------------------------
Signature Guaranteed:
NOTICE
The signature to the foregoing Election to Purchase and Certificate must
correspond to the name as written upon the face of this Rights Certificate in
every particular, without alteration or enlargement or any change whatsoever.
43
Exhibit B-1
[FORM OF MARATHON RIGHTS CERTIFICATE]
Certificate No. R- Marathon Rights
NOT EXERCISABLE AFTER OCTOBER 9, 2009 UNLESS EXTENDED PRIOR THERETO BY THE
BOARD OF DIRECTORS OR EARLIER IF REDEEMED BY THE COMPANY. THE USX-MARATHON
GROUP RIGHTS ("MARATHON RIGHTS") ARE SUBJECT TO REDEMPTION, AT THE OPTION OF
THE COMPANY, AT $.01 PER MARATHON RIGHT ON THE TERMS SET FORTH IN THE RIGHTS
AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, MARATHON RIGHTS BENEFICIALLY OWNED BY
AN ACQUIRING PERSON (AS SUCH TERM IS DEFINED IN THE RIGHTS AGREEMENT) AND ANY
SUBSEQUENT HOLDER OF SUCH MARATHON RIGHTS MAY BECOME NULL AND VOID. [THE
MARATHON RIGHTS REPRESENTED BY THIS MARATHON RIGHTS CERTIFICATE ARE OR WERE
BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN
AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE
RIGHTS AGREEMENT). ACCORDINGLY, THIS MARATHON RIGHTS CERTIFICATE AND THE
MARATHON RIGHTS REPRESENTED HEREBY MAY BECOME NULL AND VOID IN THE
CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF SUCH AGREEMENT.] (1)
--------------------
(1) The portion of the legend in brackets shall be inserted only if applicable
and shall replace the preceding sentence.
USX-Marathon Group Rights Certificate
USX CORPORATION
This certifies that
, or registered assigns, is the
registered owner of the number of USX-Marathon Group Rights ("Marathon 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 September
28, 1999 (the "Rights Agreement"), between USX Corporation, a Delaware
corporation (the "Company"), and ChaseMellon Shareholder Services,
44
L.L.C., a New Jersey limited liability company (the "Rights Agent"), to
purchase from the Company at any time prior to 5:00 P.M. (
New York City time)
on October 9, 2009 (unless extended prior thereto by the Board of Directors) at
the office or offices of the Rights Agent designated for such purpose, or its
successors as Rights Agent, one one-hundredth of a fully paid, non-assessable
share of Series A Junior Preferred Stock (the "Preferred Stock") of the
Company, at a purchase price of $110 in cash per one one-hundredth of a share
(the "Purchase Price"), upon presentation and surrender of this Marathon Rights
Certificate with the Form of Election to Purchase and related Certificate duly
executed. The number of Marathon Rights evidenced by this Marathon Rights
Certificate (and the number of shares that may be purchased upon exercise
thereof) set forth above, and the Purchase Price per share set forth above, are
the number and Purchase Price as of October 9, 1999, based on the Preferred
Stock as constituted at such date. Pursuant to the Rights Agreement, the
Company reserves the right to require prior to the occurrence of a Triggering
Event (as such term is defined in the Rights Agreement) that, upon any exercise
of Marathon Rights, a number of Marathon Rights be exercised so that only whole
shares of Preferred Stock will be issued.
Upon the occurrence of a Section 11(a)(ii) Event (as such term is defined
in the Rights Agreement), if the Marathon Rights evidenced by this Marathon
Rights Certificate are beneficially owned by (i) an Acquiring Person or an
Affiliate or Associate of any such Acquiring Person (as such terms are defined
in the Rights Agreement), (ii) a transferee of any such Acquiring Person,
Associate or Affiliate, or (iii) under certain circumstances specified in the
Rights Agreement, a transferee of a person who, after such transfer, became an
Acquiring Person or an Affiliate or Associate of an Acquiring Person, such
Marathon Rights shall become null and void and no holder hereof shall have any
right with respect to such Marathon Rights from and after the occurrence of
such Section 11(a)(ii) Event.
As provided in the Rights Agreement, the Purchase Price and the number and
kind of shares of Preferred Stock or other securities, which may be purchased
upon the exercise of the Marathon Rights evidenced by this Marathon Rights
Certificate are subject to modification and adjustment upon the happening of
certain events, including Triggering Events.
This Marathon Rights Certificate is subject to all of the terms,
provisions and conditions of the Rights Agreement, which terms, provisions and
conditions are hereby incorporated herein by reference and made a part hereof
and to which Rights Agreement reference is hereby made for a full description
of the rights, limitations of rights, obligations, duties and immunities
hereunder of the Rights Agent, the Company and the holders of the Marathon
Rights Certificates, which limitations of rights include the temporary
suspension of the exercisability of such Marathon Rights under the specific
circumstances set forth in the Rights Agreement. Copies of the Rights Agreement
are on file at the office of the Rights Agent designated for such purpose and
are also available upon written request to the Rights Agent.
This Marathon Rights Certificate, with or without other Marathon Rights
Certificates, upon surrender at the office or offices of the Rights Agent
designated for such purpose, may be exchanged for another Marathon Rights
Certificate or Marathon Rights Certificates of like tenor and date evidencing
Marathon Rights entitling the holder to purchase a like aggregate number of one
one-hundredths of a share of Preferred Stock as the Marathon Rights evidenced
by the Marathon Rights Certificate or Marathon Rights Certificates surrendered
shall have entitled such holder to purchase. If this Marathon Rights
Certificate shall be exercised in part, the holder shall be entitled to receive
upon surrender hereof another Marathon Rights Certificate or Marathon Rights
Certificates for the number of whole Marathon Rights not exercised.
45
Subject to the provisions of the Rights Agreement, the Marathon Rights
evidenced by this Certificate may be redeemed by the Company at its option at a
redemption price of $.01 per Marathon Right (payable in cash or stock or any
other form of consideration deemed appropriate by the Board of Directors as set
forth in the Rights Agreement) (the "Redemption Price") at any time prior to
the earlier of the close of business on (i) the tenth Business Day following
the Stock Acquisition Date (as such time period may be extended pursuant to the
Rights Agreement), and (ii) the Final Expiration Date. In addition, under
certain circumstances following the Stock Acquisition Date, the Marathon Rights
may be exchanged, in whole or in part, for shares of the Voting Stock, or
shares of preference stock of the Company having essentially the same value or
economic rights as such shares. Immediately upon the action of the Board of
Directors authorizing any such exchange, and without any further action or any
notice, the Marathon Rights (other than Marathon Rights which are not subject
to such exchange) will terminate and the Marathon Rights will only enable
holders to receive the shares issuable upon such exchange.
No fractional shares of Preferred Stock will be issued upon the exercise
of any Marathon Right or Marathon Rights evidenced hereby (other than fractions
which are integral multiples of one one-hundredth of a share of Preferred
Stock, which may, at the election of the Company, be evidenced by depositary
receipts), but in lieu thereof a cash payment will be made, as provided in the
Rights Agreement. The Company, at its election, may require that a number of
Marathon Rights be exercised so that only whole shares of Preferred Stock would
be issued.
No holder of this Marathon Rights Certificate shall be entitled to vote or
receive dividends or be deemed for any purpose the holder of shares of
Preferred Stock or of any other securities of the Company which may at any time
be issuable on the exercise hereof, nor shall anything contained in the Rights
Agreement or herein be construed to confer upon the holder hereof, as such, any
of the rights of a stockholder of the Company or any right to vote for the
election of directors or upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate action, or to
receive notice of meetings or other actions affecting stockholders (except as
provided in the Rights Agreement), or to receive dividends or subscription
rights, or otherwise, until the Marathon Right or Marathon Rights evidenced by
this Rights Certificate shall have been exercised as provided in the Rights
Agreement.
This Marathon Rights Certificate shall not be valid or obligatory for any
purpose until it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the Company and
its corporate seal.
Dated as of ,
------------- -----------
ATTEST: USX CORPORATION
By
------------------------------ ---------------------------
Secretary Title
Countersigned:
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
By
-------------------------
Authorized Signature
46
[Form of Reverse Side of Marathon Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Marathon Rights Certificate)
FOR VALUE RECEIVED _____________________________ hereby sells, assigns and
transfers unto _________________________________________
--------------------------------------------------------------------
(Please print name and address of transferee)
this Marathon Rights Certificate, together with all right, title and interest
therein, and does hereby irrevocably constitute and appoint _________,
Attorney, to transfer the within Marathon Rights Certificate on the books of
the within-named Company, with full power of substitution.
Dated: ,
------------ -----
---------------------------
Signature
Signature Guaranteed:
Certificate
The undersigned hereby certifies by checking the appropriate boxes that:
(1) this Marathon Rights Certificate [ ] is [ ] is not being sold,
assigned and transferred by or on behalf of a Person who is or was an Acquiring
Person or an Affiliate or Associate of any such Acquiring Person (as such terms
are defined pursuant to the Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned, it [ ]
did [ ] did not acquire the Rights evidenced by this Marathon Rights
Certificate from any Person who is, was or subsequently became an Acquiring
Person or an Affiliate or Associate of an Acquiring Person.
Dated: ,
------------ ----- ---------------------------
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Assignment and Certificate must correspond
to the name as written upon the face of this Marathon Rights Certificate in
every particular, without alteration or enlargement or any change whatsoever.
47
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to
exercise Marathon Rights represented by the
Marathon Rights Certificate)
To: USX CORPORATION:
The undersigned hereby irrevocably elects to exercise _____ Marathon
Rights represented by this Marathon Rights Certificate to purchase the shares
of Preferred Stock issuable upon the exercise of the Marathon Rights (or such
other securities of the Company or of any other person which may be issuable
upon the exercise of the Marathon Rights) and requests that certificates for
such shares be issued in the name of and delivered to:
Please insert social security or other identifying number
---------------------------------------------------------------------------
(Please print name and address)
---------------------------------------------------------------------------
If such number of Marathon Rights shall not be all the Marathon Rights
evidenced by this Marathon Rights Certificate, a new Marathon Rights
Certificate for the balance of such Marathon Rights shall be registered in the
name of and delivered to:
Please insert social security or other identifying number
---------------------------------------------------------------------------
(Please print name and address)
---------------------------------------------------------------------------
Dated: ,
------------ -----
---------------------------
Signature
Signature Guaranteed:
Certificate
The undersigned hereby certifies by checking the appropriate boxes that:
(1) the Marathon Rights evidenced by this Marathon Rights Certificate [ ]
are [ ] are not being exercised by or on behalf of a Person who is or was an
Acquiring Person or an Affiliate or Associate of any such Acquiring Person (as
such terms are defined pursuant to the Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned, it [ ]
did [ ] did not acquire the Marathon Rights evidenced by this Marathon Rights
Certificate from any Person who is, was or became an Acquiring Person or an
Affiliate or Associate of an Acquiring Person.
Dated: , 19
------------ ---------------------------
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Election to Purchase and Certificate must
correspond to the name as written upon the face of this Marathon Rights
Certificate in every particular, without alteration or enlargement or any
change whatsoever.
48
Exhibit B-2
[Form of Steel Rights Certificate]
Certificate No. R- Steel Rights
NOT EXERCISABLE AFTER OCTOBER 9, 2009 UNLESS EXTENDED PRIOR THERETO BY THE
BOARD OF DIRECTORS OR EARLIER IF REDEEMED BY THE COMPANY. THE USX-U.S. STEEL
GROUP RIGHTS ("STEEL RIGHTS") ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE
COMPANY, AT $.01 PER STEEL RIGHT ON THE TERMS SET FORTH IN THE RIGHTS
AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, STEEL RIGHTS BENEFICIALLY OWNED BY AN
ACQUIRING PERSON (AS SUCH TERM IS DEFINED IN THE RIGHTS AGREEMENT) AND ANY
SUBSEQUENT HOLDER OF SUCH STEEL RIGHTS MAY BECOME NULL AND VOID. [THE STEEL
RIGHTS REPRESENTED BY THIS STEEL RIGHTS CERTIFICATE ARE OR WERE BENEFICIALLY
OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN AFFILIATE OR
ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS
AGREEMENT). ACCORDINGLY, THIS STEEL RIGHTS CERTIFICATE AND THE STEEL RIGHTS
REPRESENTED HEREBY MAY BECOME NULL AND VOID IN THE CIRCUMSTANCES SPECIFIED IN
SECTION 7(e) OF SUCH AGREEMENT.] (1)
----------
(1) The portion of the legend in brackets shall be inserted only if applicable
and shall replace the preceding sentence.
USX-U.S. Steel Group Rights Certificate
USX CORPORATION
This certifies that
, or registered assigns, is the
registered owner of the number of USX-U.S. Steel Group Rights ("Steel 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 September
28, 1999 (the "Rights Agreement"), between USX Corporation, a Delaware
corporation (the "Company"), and ChaseMellon Shareholder Services, L.L.C., a
New Jersey limited liability company (the "Rights Agent"), to purchase from the
Company at any time prior to 5:00 P.M. (New York City time) on October 9, 2009
(unless extended prior thereto by the Board of Directors), at the office or
offices of the Rights Agent designated for such purpose, or its successors as
Rights Agent, one one-hundredth of a fully paid, non-assessable share of Series
A Junior Preferred Stock (the "Preferred Stock") of the Company, at a purchase
price of $110 in cash per one one-hundredth of a share (the "Purchase Price"),
upon presentation and surrender of this Steel Rights Certificate with the Form
of Election to Purchase and related Certificate duly executed. The number of
Steel Rights evidenced by this Steel Rights Certificate (and the number of
shares that may be purchased upon exercise thereof) set forth above, and the
Purchase Price per share set forth above, are the number and Purchase Price as
of October 9, 1999, based on the Preferred Stock as constituted at such date.
Pursuant to the Rights Agreement, the Company reserves the right to require
prior to the occurrence of a Triggering Event (as such term is defined in the
Rights Agreement) that, upon any exercise of Steel Rights, a number of Steel
Rights be exercised so that only whole shares of Preferred Stock will be
issued.
Upon the occurrence of a Section 11(a)(ii) Event (as such term is defined
in the Rights Agreement), if the Steel Rights evidenced by this Steel Rights
Certificate are beneficially owned by (i) an Acquiring Person or an Affiliate
or Associate of any such Acquiring Person (as such terms are defined in the
Rights Agreement), (ii) a transferee of any such Acquiring Person, Associate or
Affiliate, or (iii) under certain
49
circumstances specified in the Rights Agreement, a transferee of a person who,
after such transfer, became an Acquiring Person or an Affiliate or Associate of
an Acquiring Person, such Steel Rights shall become null and void and no holder
hereof shall have any right with respect to such Steel Rights from and after
the occurrence of such Section 11(a)(ii) Event.
As provided in the Rights Agreement, the Purchase Price and the number and
kind of shares of Preferred Stock or other securities, which may be purchased
upon the exercise of the Steel Rights evidenced by this Steel Rights
Certificate are subject to modification and adjustment upon the happening of
certain events, including Triggering Events.
This Steel Rights Certificate is subject to all of the terms, provisions
and conditions of the Rights Agreement, which terms, provisions and conditions
are hereby incorporated herein by reference and made a part hereof and to which
Rights Agreement reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities hereunder of the
Rights Agent, the Company and the holders of the Steel Rights Certificates,
which limitations of rights include the temporary suspension of the
exercisability of such Steel Rights under the specific circumstances set forth
in the Rights Agreement. Copies of the Rights Agreement are on file at the
office of the Rights Agent designated for such purpose and are also available
upon written request to the Rights Agent.
This Steel Rights Certificate, with or without other Steel Rights
Certificates, upon surrender at the office or offices of the Rights Agent
designated for such purpose, may be exchanged for another Steel Rights
Certificate or Steel Rights Certificates of like tenor and date evidencing
Steel Rights entitling the holder to purchase a like aggregate number of one
one-hundredths of a share of Preferred Stock as the Steel Rights evidenced by
the Steel Rights Certificate or Steel Rights Certificates surrendered shall
have entitled such holder to purchase. If this Steel Rights Certificate shall
be exercised in part, the holder shall be entitled to receive upon surrender
hereof another Steel Rights Certificate or Steel Rights Certificates for the
number of whole Steel Rights not exercised.
Subject to the provisions of the Rights Agreement, the Steel Rights
evidenced by this Certificate may be redeemed by the Company at its option at a
redemption price of $.01 per Steel Right (payable in cash or stock or any other
form of consideration deemed appropriate by the Board of Directors as set forth
in the Rights Agreement) (the "Redemption Price") at any time prior to the
earlier of the close of business on (i) the tenth Business Day following the
Stock Acquisition Date (as such time period may be extended pursuant to the
Rights Agreement), and (ii) the Final Expiration Date. In addition, under
certain circumstances following the Stock Acquisition Date, the Steel Rights
may be exchanged, in whole or in part, for shares of the Voting Stock, or
shares of preference stock of the Company having essentially the same value or
economic rights as such shares. Immediately upon the action of the Board of
Directors authorizing any such exchange, and without any further action or any
notice, the Steel Rights (other than Steel Rights which are not subject to such
exchange) will terminate and the Steel Rights will only enable holders to
receive the shares issuable upon such exchange.
No fractional shares of Preferred Stock will be issued upon the exercise
of any Steel Right or Steel Rights evidenced hereby (other than fractions which
are integral multiples of one one-hundredth of a share of Preferred Stock,
which may, at the election of the Company, be evidenced by depositary
receipts), but in lieu thereof a cash payment will be made, as provided in the
Rights Agreement. The Company, at its election, may require that a number of
Rights be exercised so that only whole shares of Preferred Stock would be
issued.
50
No holder of this Steel Rights Certificate shall be entitled to vote or
receive dividends or be deemed for any purpose the holder of shares of
Preferred Stock or of any other securities of the Company which may at any time
be issuable on the exercise hereof, nor shall anything contained in the Rights
Agreement or herein be construed to confer upon the holder hereof, as such, any
of the rights of a stockholder of the Company or any right to vote for the
election of directors or upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate action, or to
receive notice of meetings or other actions affecting stockholders (except as
provided in the Rights Agreement), or to receive dividends or subscription
rights, or otherwise, until the Steel Right or Steel Rights evidenced by this
Rights Certificate shall have been exercised as provided in the Rights
Agreement.
This Steel Rights Certificate shall not be valid or obligatory for any
purpose until it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the Company and
its corporate seal.
Dated as of ,
---------- ----
ATTEST: USX CORPORATION
By
-------------------------- -----------------------------
Secretary Title
Countersigned:
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
By ___________________________
Authorized Signature
[Form of Reverse Side of Steel Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Steel Rights Certificate)
FOR VALUE RECEIVED _____________________________ hereby sells, assigns and
transfers unto ____________________________________________
-----------------------------------------------------------------------
(Please print name and address of transferee)
this Steel Rights Certificate, together with all right, title and interest
therein, and does hereby irrevocably constitute and appoint ______________,
Attorney, to transfer the within Steel Rights Certificate on the books of the
within-named Company, with full power of substitution.
Dated as of ,
---------- ----
---------------------------
Signature
Signature Guaranteed:
51
Certificate
The undersigned hereby certifies by checking the appropriate boxes that:
(1) this Steel Rights Certificate [ ] is [ ] is not being sold, assigned
and transferred by or on behalf of a Person who is or was an Acquiring Person
or an Affiliate or Associate of any such Acquiring Person (as such terms are
defined pursuant to the Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned, it [ ]
did [ ] did not acquire the Rights evidenced by this Steel Rights Certificate
from any Person who is, was or subsequently became an Acquiring Person or an
Affiliate or Associate of an Acquiring Person.
Dated as of ,
---------- ---- ---------------------------
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Assignment and Certificate must correspond
to the name as written upon the face of this Steel Rights Certificate in every
particular, without alteration or enlargement or any change whatsoever.
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to
exercise Steel Rights represented by the
Steel Rights Certificate)
To: USX CORPORATION:
The undersigned hereby irrevocably elects to exercise _____ Steel Rights
represented by this Steel Rights Certificate to purchase the shares of
Preferred Stock issuable upon the exercise of the Steel Rights (or such other
securities of the Company or of any other person which may be issuable upon the
exercise of the Steel Rights) and requests that certificates for such shares be
issued in the name of and delivered to:
Please insert social security
or other identifying number
--------------------------------------------------------------------------
(Please print name and address)
--------------------------------------------------------------------------
If such number of Steel Rights shall not be all the Steel Rights evidenced
by this Steel Rights Certificate, a new Steel Rights Certificate for the
balance of such Steel Rights shall be registered in the name of and delivered
to:
Please insert social security
or other identifying number
--------------------------------------------------------------------------
(Please print name and address)
-------------------------------------------------------------------------
52
Dated as of ,
---------- ----
---------------------------
Signature
Signature Guaranteed:
Certificate
The undersigned hereby certifies by checking the appropriate boxes that:
(1) the Steel Rights evidenced by this Steel Rights Certificate [ ] are [
] are not being exercised by or on behalf of a Person who is or was an
Acquiring Person or an Affiliate or Associate of any such Acquiring Person (as
such terms are defined pursuant to the Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned, it [ ]
did [ ] did not acquire the Steel Rights evidenced by this Steel Rights
Certificate from any Person who is, was or became an Acquiring Person or an
Affiliate or Associate of an Acquiring Person.
Dated as of ,
---------- ---- ---------------------------
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Election to Purchase and Certificate must
correspond to the name as written upon the face of this Steel Rights
Certificate in every particular, without alteration or enlargement or any
change whatsoever.
53
