BIOCLINICA, INC. and COMPUTERSHARE TRUST COMPANY, N.A. Rights Agreement Dated as of July 20, 2009
Exhibit 4.1
BIOCLINICA, INC.
and
COMPUTERSHARE TRUST COMPANY, N.A.
Dated as of July 20, 2009
TABLE OF CONTENTS
Page | ||||
Section 1. Certain Definitions |
1 | |||
Section 2. Appointment of Rights Agent |
4 | |||
Section 3. Issue of Right Certificates |
4 | |||
Section 4. Form of Right Certificates |
5 | |||
Section 5. Countersignature and Registration |
6 | |||
Section 6. Transfer, Split Up, Combination and Exchange of Right Certificates;
Mutilated, Destroyed, Lost or Stolen Right Certificates |
6 | |||
Section 7. Exercise of Rights; Purchase Price; Expiration Date of Rights |
7 | |||
Section 8. Cancellation and Destruction of Right Certificates |
8 | |||
Section 9. Status and Availability of Preferred Shares |
8 | |||
Section 10. Preferred Shares Record Date |
9 | |||
Section 11. Adjustment of Purchase Price, Number of Shares or Number of Rights |
9 | |||
Section 12. Certificate of Adjustment |
15 | |||
Section 13. Consolidation, Merger or Sale or Transfer of Assets or Earning Power |
16 | |||
Section 14. Fractional Rights and Fractional Shares |
17 | |||
Section 15. Rights of Action |
18 | |||
Section 16. Agreement of Right Holders |
18 | |||
Section 17. Right Certificate Holder Not Deemed a Stockholder |
18 | |||
Section 18. Concerning the Rights Agent |
19 | |||
Section 19. Merger or Consolidation or Change of Name of Rights Agent |
19 | |||
Section 20. Duties of Rights Agent |
20 | |||
Section 21. Change of Rights Agent |
22 | |||
Section 22. Issuance of New Right Certificates |
22 | |||
Section 23. Redemption |
23 | |||
Section 24. Exchange |
23 | |||
Section 25. Notice of Certain Events |
25 | |||
Section 26. Notices |
25 | |||
Section 27. Supplements and Amendments |
26 | |||
Section 28. Successors |
26 | |||
Section 29. Benefits of this Agreement |
26 |
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TABLE OF CONTENTS
(continued)
(continued)
Page | ||||
Section 30. Severability |
26 | |||
Section 31. Governing Law |
27 | |||
Section 32. Counterparts |
27 | |||
Section 33. Descriptive Headings |
27 | |||
Section 34. Administration |
27 |
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Agreement, dated as of July 20, 2009, between BioClinica, Inc., a Delaware corporation (the
“Company”), and Computershare Trust Company, N.A. (the “Rights Agent”).
The Board of Directors of the Company has authorized and declared a dividend of one preferred
share purchase right (a “Right”) for each share of Common Stock, par value $0.00025 per share, of
the Company (a “Common Share”) outstanding on the Close of Business on July 20, 2009 (the “Record
Date”) and has authorized the issuance of one Right with respect to each additional Common Share
that shall become outstanding between the Record Date and the earliest of the Close of Business on
the Distribution Date, the Redemption Date and the Close of Business on the Final Expiration Date,
and certain additional shares of Common Stock that shall become outstanding after the Distribution
Date as provided in Section 22 of this Agreement, each Right
initially representing the right to purchase one
one-thousandths (subject to adjustment) of a Preferred Share (as hereinafter defined), or such different amount and/or kind
of securities as shall be hereinafter provided.
Accordingly, 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:
“Acquiring Person” shall mean any Person who or which, together with all Affiliates and
Associates of such Person, shall be the Beneficial Owner of 15%, or, in the case of a Grandfathered
Stockholder, 20%, of the Common Shares, but shall not include (i) the Company, (ii) any Subsidiary of the Company, (iii)
any employee benefit plan of the Company or any Subsidiary of the Company, or (iv) any entity
holding Common Shares for or pursuant to the terms of any such employee benefit plan.
Notwithstanding the foregoing, (1) no Person shall become an “Acquiring Person” as the result of an
acquisition of Common Shares by the Company which, by reducing the number of shares outstanding,
increases the proportionate number of shares beneficially owned by such Person to 15% (or such
other percentage as would otherwise result in such person becoming an Acquiring Person) or more of
the Common Shares of the Company then outstanding; provided, however, that if a
Person shall so become the Beneficial Owner of 15% (or such other percentage) or more of the Common
Shares of the Company then outstanding by reason of an acquisition of Common Shares by the Company
and shall, after such share purchases by the Company, become the Beneficial Owner of any additional
shares of the outstanding Common Shares of the Company (other than
pursuant to a dividend or distribution paid or made by the Company on
the outstanding Common Shares or pursuant to a split or subdivision
of the outstanding Common Shares), then such Person shall be deemed to be an
“Acquiring Person”; and (2) if the Board of Directors of the Company determines in good faith that
a Person who would otherwise be an “Acquiring Person,” as defined pursuant to the foregoing
provisions of this paragraph, has become such inadvertently or had no
knowledge of the consequences of becoming an Acquiring Person and had
no intention to influence control of the Company, and such Person divests as promptly as
practicable a sufficient number of Common Shares so that such Person would no longer be an
“Acquiring Person,” as defined pursuant to the foregoing provisions of this paragraph, then such
Person shall not be deemed to have become an “Acquiring Person” for any purposes of this Agreement.
Notwithstanding anything in this definition of Acquiring Person to the contrary, no
Person (i) shall become an “Acquiring Person” solely as a result of any unilateral grant of any
security by the Company or through the exercise of any options, warrants, rights or similar
interests (including restricted stock) granted by the Company to its directors, officers and
employees; and (ii) no Person shall become an “Acquiring Person” as the result of the
acquisition of Beneficial Ownership of Common Shares from an individual who, on the later of
the date hereof or the first public announcement of this Agreement, is the Beneficial Owner of
15% (or such other percentage as would result in a person becoming an Acquiring Person) or
more of the Common Shares then outstanding if such Common Shares are received by such
Person upon such individual’s death pursuant to such individual’s will or pursuant to a charitable
trust created by such individual for estate planning purposes.
“Affiliate” and “Associate” shall have the respective meanings ascribed to such terms in Rule
12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as amended
(the “Exchange Act”), as in effect on the date of this Agreement.
A Person shall be deemed the “Beneficial Owner” of and shall be deemed to “beneficially own”
any securities:
(i) which
such Person or any of such Person’s Affiliates or Associates is
deemed to beneficially own,
directly or indirectly, within the meaning of Rule 13d-3 of the
Exchange Act as in effect on the date hereof;
(ii) which such Person or any of such Person’s Affiliates or Associates has (A) the right to
acquire (whether such right is exercisable immediately or only after the passage of time) pursuant
to any agreement, arrangement or understanding (other than customary agreements with and between
underwriters and selling group members with respect to a bona fide public offering of securities),
written or otherwise, or upon the exercise of conversion rights, exchange rights, rights (other
than the Rights), warrants or options, or otherwise; provided, however, that a
Person shall not be deemed to be the Beneficial Owner of, or to beneficially own, securities
tendered pursuant to a tender or exchange offer made pursuant to, and in accordance with, the
applicable rules and regulations promulgated under the Exchange Act by or on behalf of such Person
or any of such Person’s Affiliates or Associates until such tendered securities are accepted for
purchase or exchange; or (B) the right to vote pursuant to any agreement, arrangement or
understanding; provided, however, that a Person shall not be deemed the Beneficial
Owner of, or to beneficially own, any security by reason of such
agreement, arrangement or understanding if the agreement, arrangement or understanding to
vote such security (1) arises solely from a revocable proxy or consent given to such Person in
response to a public proxy or consent solicitation made pursuant to, and in accordance with, the
applicable rules and regulations promulgated under the Exchange Act and (2) is not also then
reportable on Schedule 13D under the Exchange Act (or any comparable or successor report); or
(iii) which are beneficially owned, directly or indirectly, by any other Person with which
such Person or any of such Person’s Affiliates or Associates has any agreement, arrangement or
understanding (other than customary agreements with and between underwriters and selling group
members with respect to a bona fide public offering of securities), written or otherwise, for the
purpose of acquiring, holding, voting (except to the extent contemplated by the proviso to section
(B) of the immediately preceding paragraph (ii)) or disposing of any securities of the Company.
For all purposes of this Agreement, any calculation of the number of Common Shares outstanding at any particular time, including for purposes of determining the particular percentage of the outstanding Common Shares 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 Exchange Act, as in effect on the date hereof.
“Business Day” shall mean any day other than a Saturday, Sunday, or a day on which banking
institutions in the state of Massachusetts are authorized or obligated by law or executive order to
close.
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“Close of Business” on any given date shall mean 5:00 P.M., eastern time, on such date;
provided, however, that if such date is not a Business Day it shall mean 5:00 P.M.,
eastern time, on the next succeeding Business Day.
“Common Shares” when used with reference to the Company shall mean the shares of Common Stock,
par value $0.00025 per share, of the Company. “Common Shares” when used with reference to any
Person other than the Company shall mean the capital stock (or equity interest) with the greatest
voting power of such other Person or, if such other Person is a Subsidiary of another Person, the
Person or Persons which ultimately control such first-mentioned Person.
“Common Stock Equivalents” shall have the meaning set forth in Section 11(a)(iii)(B)(3)
hereof.
“Current Value” shall have the meaning set forth in Section 11(a)(iii)(A)(1) hereof.
“Distribution Date” shall have the meaning set forth in Section 3(a) hereof.
“Equivalent Preferred Shares” shall have the meaning set forth in Section 11(b) hereof.
“Exchange Ratio” shall have the meaning set forth in Section 24(a) hereof.
“Final Expiration Date” shall mean July 20, 2019.
“Grandfathered Stockholder” shall mean each stockholder that beneficially owns, as of the date
of this Agreement, 10% or more of the Common Shares and its Affiliates and Associates; provided,
however, a Person will only be deemed to be a Grandfathered Stockholder if such 10% or more
ownership is disclosed on the appropriate filings with the Securities and Exchange Commission on
the date hereof and such Person acquired its ownership position in the Company with the approval of
the Board of Directors of the Company.
“Person” shall mean any individual, firm, corporation, partnership, limited partnership,
limited liability partnership, business trust, limited liability company, unincorporated
association or other entity, and shall include any successor (by merger or otherwise) of such
entity.
“Purchase Price” shall have the meaning set forth in Section 7(b) hereof.
“Preferred Shares” shall mean shares of Series A Junior Participating Preferred Stock, par
value $0.00025 per share, of the Company having such rights and preferences as are set forth in the
form of Certificate of Designation set forth as Exhibit A hereto, as the same may be
amended from time to time.
“Redemption Date” shall have the meaning set forth in Section 23 hereof.
“Right Certificate” shall mean a certificate evidencing a Right in substantially the form of
Exhibit B hereto.
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“Section 11(a)(ii) Trigger Date” shall have the meaning set forth in Section 11(a)(iii)
hereof.
“Shares Acquisition Date” shall mean the earlier of the date of (i) the public announcement by
the Company or an Acquiring Person that an Acquiring Person has become such or (ii) the public
disclosure of facts by the Company or an Acquiring Person indicating that an Acquiring Person has
become such.
“Spread” shall have the meaning set forth in Section 11(a)(iii)(A) hereof.
“Subsidiary” of any Person shall mean any Person of which a majority of the voting power of
the voting equity securities or equity interest is owned, directly or indirectly, by such Person.
“Substitution Period” shall have the meaning set forth in Section 11(a)(iii) hereof.
“Summary of Rights” shall mean the Summary of Rights to Purchase Preferred Shares in
substantially the form of Exhibit C hereto.
Section 2. Appointment of Rights Agent. 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, upon ten (10) days’ prior written notice to the
Rights Agent. The Rights Agent shall have no duty to supervise, and shall in no event be liable
for, the acts or omissions of any such co-Rights Agent.
Section 3. Issue of Right Certificates.
(a) Until
the Close of Business on the earlier of (i) the tenth day after the Shares Acquisition Date or (ii) the tenth
Business Day (or such later date as may be determined by action of the Board of Directors prior to
such time as any Person becomes an Acquiring Person) after the date of the commencement by any
Person (other than the Company, any Subsidiary of the Company, any employee benefit plan of the
Company or of any Subsidiary of the Company or any entity holding Common Shares for or pursuant to
the terms of any such plan) of, or of the first public announcement of the intention of any Person
(other than any of the Persons referred to in the preceding parenthetical) to commence, a tender or
exchange offer the consummation of which would result in any Person
becoming an Acquiring Person (such date
being herein referred to as the “Distribution Date”), (x) the Rights will be evidenced (subject to
the provisions of Section 3(b) hereof) by the certificates for Common Shares registered in the
names of the holders thereof or by book entry shares in respect of
such Common Shares (which certificates shall also be deemed to be Right Certificates) and
not by separate Right Certificates, and (y) the Rights will be
transferable only in connection with the transfer of Common Shares. As soon as practicable after
the Distribution Date, the Company will prepare and execute, the Rights Agent will countersign, and
the Company will send or cause to be sent (and the Rights Agent will, if requested, at the expense
of the Company, send) by first-class, insured, postage-prepaid mail, to each record holder of
Common Shares as of the Close of Business on the Distribution Date
(other than any Acquiring Person or any Associate or Affiliate of an
Acquiring Person), at the address of such holder
shown on the
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records of the Company, a Right Certificate evidencing one Right for each Common Share so
held. As of the Distribution Date, the Rights will be evidenced solely by such Right Certificates.
(b) On the Record Date, or as soon as practicable thereafter, the Company will send a copy of
the Summary of Rights by first-class, postage-prepaid mail, to each record holder of Common Shares
as of the Close of Business on the Record Date, at the address of such holder shown on the records
of the Company. With respect to certificates for Common Shares (or
book entry Common Shares) outstanding as of the Record Date,
until the Close of Business on the Distribution Date, the Rights will be evidenced by such
certificates registered in the names of the holders thereof (or such
book entry Common Shares) together with a copy of the Summary of
Rights attached thereto. Until the Close of Business on the Distribution Date (or the earlier of
the Redemption Date or the Close of Business on the Final Expiration Date), the surrender for
transfer of any certificate for Common Shares (or book entry Common
Shares) outstanding on the Record Date, with or without a
copy of the Summary of Rights attached thereto, shall also constitute the transfer of the Rights
associated with the Common Shares evidenced thereby.
(c) Certificates for Common Shares which become outstanding (including, without limitation,
reacquired Common Shares referred to in the last sentence of this paragraph (c)) after the Record
Date but prior to the earliest of the Close of Business on the Distribution Date, the Redemption
Date or the Close of Business on the Final Expiration Date shall have impressed on, printed on,
written on or otherwise affixed to them the following legend:
This certificate also evidences and entitles the holder hereof to certain Rights as
set forth in a Rights Agreement between BioClinica, Inc. and Computershare Trust
Company, N.A., as Rights Agent, dated as of July 20, 2009, as it may from time to
time be amended or supplemented pursuant to its terms (the “Rights Agreement”), the
terms of which are hereby incorporated herein by reference and a copy of which is on
file at the principal executive offices of BioClinica, Inc. Under certain
circumstances, as set forth in the Rights Agreement, such Rights will be evidenced
by separate certificates and will no longer be evidenced by this certificate.
BioClinica, Inc. will mail to the holder of this certificate a copy of the Rights
Agreement without charge after receipt of a written request therefor. Under certain
circumstances, Rights that are or were acquired or beneficially owned by Acquiring
Persons (as defined in the Rights Agreement) may become null and void.
With respect to any book entry Common Shares, such legend shall be included in a notice to
the record holder of such shares in accordance with applicable law.
With
respect to such certificates containing the foregoing legend, or any
notice of the foregoing legend delivered to holders of book entry
Common Shares, until the Close of Business on
the Distribution Date, the Rights associated with the Common Shares represented by certificates
or book entry Common Shares shall be evidenced by such certificates
alone or book entry Common Shares, and the surrender for transfer of any such
certificate or book entry Common Shares shall, except as otherwise provided herein, also constitute the transfer of the Rights associated with the Common Shares
represented thereby. In the event that the Company purchases or acquires any Common Shares after
the Record Date but prior to the Close of Business on the Distribution Date, any Rights associated
with such Common Shares shall be deemed canceled and retired so that the Company shall not be
entitled to exercise any Rights associated with the Common Shares which are no longer outstanding.
Notwithstanding this paragraph (c), neither the omission of a legend nor the failure to deliver
the notice of such legend required hereby shall affect the enforceability of any part of this
Agreement or the rights of any holder of the Rights.
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Section 4. Form of Right Certificates. The Right Certificates (and the forms of election
to purchase Preferred Shares and of assignment to be printed on the reverse thereof) shall be
substantially the same as Exhibit B hereto and may have such marks of identification or designation
and such legends, summaries or endorsements printed thereon as the Company may deem appropriate and
as are not inconsistent with the provisions of this Agreement, or as may be required to comply with
any applicable law or with any rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange or interdealer quotation system on
which the Rights may from time to time be listed or quoted, or to conform
to usage. Subject to the other provisions of this Agreement, the Right Certificates shall entitle
the holders thereof to purchase such number of one one-thousandths of a Preferred Share as shall be
set forth therein at the Purchase Price, but the number of one one-thousandths of a Preferred Share
and the Purchase Price shall be subject to adjustment as provided herein.
Section 5. Countersignature and Registration. The Right Certificates shall be executed on
behalf of the Company by its Chairman of the Board, its Chief Executive Officer and President, any
of its Vice Presidents, or its Treasurer, either manually or by facsimile signature, shall have
affixed thereto the Company’s seal or a facsimile thereof, and shall be attested by the Secretary
or any Assistant Secretary of the Company, either manually or by facsimile signature. The Right
Certificates shall be countersigned by the Rights Agent and shall not be valid for any purpose
unless so countersigned, either manually or by facsimile. In case any officer of the Company who
shall have signed any of the Right Certificates shall cease to be such officer of the Company
before countersignature by the Rights Agent and issuance and delivery by the Company, such Right
Certificates, nevertheless, may be countersigned by the Rights Agent and issued and delivered by
the Company with the same force and effect as though the Person who signed such Right Certificates
had not ceased to be such officer of the Company; and any Right Certificate may be signed on behalf
of the Company by any Person who, at the actual date of the execution of such Right Certificate,
shall be a proper officer of the Company to sign such Right Certificate, although at the date of
the execution of this Rights Agreement any such Person was not such an officer.
Following the Distribution Date, the Rights Agent will keep or cause to be kept, at its
principal office, books for registration of the transfer of the Right Certificates issued
hereunder. Such books shall show the names and addresses of the respective holders of the Right
Certificates, the number of Rights evidenced on its face by each of the Right Certificates and the
date of each of the Right Certificates.
Section 6. Transfer, Split Up, Combination and Exchange of Right Certificates; Mutilated,
Destroyed, Lost or Stolen Right Certificates. Subject to the provisions of Section 14 hereof,
at any time after the Close of Business on the Distribution Date, and prior to the earlier of the
Redemption Date or the Close of Business on the Final Expiration Date, any Right Certificate or
Right Certificates (other than Right Certificates representing Rights that have become void
pursuant to Section 11(a)(ii) hereof or that have been exchanged pursuant to Section 24 hereof) may
be transferred, split up, combined or exchanged for another Right Certificate or Right
Certificates, entitling the registered holder to purchase a like number of one one-thousandths of a
Preferred Share as the Right Certificate or Right Certificates surrendered then entitled such
holder to purchase. Any registered holder desiring to transfer, split up, combine or exchange any
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Right Certificate or Right Certificates shall make such request in writing delivered to the Rights
Agent, and shall surrender the Right Certificate or Right Certificates to be transferred, split up,
combined or exchanged at the principal office of the Rights Agent. Thereupon the Rights Agent
shall countersign and deliver to the person entitled thereto a Right Certificate or Right
Certificates, as the case may be, as so requested. The Company may require payment of a sum
sufficient for any tax or governmental charge that may be imposed in connection with any transfer,
split up, combination or exchange of Right Certificates.
Upon receipt by the Company and the Rights Agent of evidence reasonably satisfactory to them
of the loss, theft, destruction or mutilation of a Right Certificate, and, in case of loss, theft
or destruction, of indemnity or security reasonably satisfactory to them, and, at the Company’s
request, reimbursement to the Company and the Rights Agent of all reasonable expenses incidental
thereto, and upon surrender to the Rights Agent and cancellation of the Right Certificate if
mutilated, the Company will make and deliver a new Right Certificate of like tenor to the Rights
Agent for delivery to the registered holder in lieu of the Right Certificate so lost, stolen,
destroyed or mutilated.
Section 7. Exercise of Rights; Purchase Price; Expiration Date of Rights.
(a)
Except as otherwise provided herein, the registered holder of any Right Certificate (other than a holder whose Rights have
become void pursuant to Section 11(a)(ii) hereof or have been exchanged pursuant to Section 24
hereof) may exercise the Rights evidenced thereby in whole or in part at any time after the
Distribution Date upon surrender of the Right Certificate, with the form of election to purchase on
the reverse side thereof duly executed, to the Rights Agent at its principal office, together with
payment of the Purchase Price for each one one-thousandth of a Preferred Share as to which the
Rights are exercised, prior to the earliest of (i) the Close of Business on the Final Expiration
Date, (ii) the time at which the right to exercise the Rights terminates pursuant to Section 23
hereof, or (iii) the time at which the right to exercise the Rights terminates pursuant to Section
24 hereof.
(b) The purchase price for each one one-thousandth of a Preferred Share to be purchased upon
the exercise of a Right shall initially be Sixteen Dollars ($16.00) (the “Purchase Price”), shall
be subject to adjustment from time to time as provided in Section 11 and Section 13 hereof and
shall be payable in lawful money of the United States of America in accordance with paragraph (c)
below.
(c)
Except as otherwise provided herein, upon receipt of a Right Certificate representing exercisable Rights, with the form of
election to purchase and certificate duly executed, accompanied by payment of the Purchase Price
for the number of one one-thousandths of a Preferred Share to be purchased and an amount equal to
any applicable transfer tax required to be paid by the holder of such Right Certificate in
accordance with Section 9 hereof by cash, certified check, cashier’s check or money order payable
to the order of the Company, the Rights Agent shall thereupon promptly (i) (A) requisition from any
transfer agent of the Preferred Shares certificates for the number of one one-thousandths of a
Preferred Share to be purchased and the Company hereby irrevocably authorizes its transfer agent to
comply with all such requests, or (B) requisition from any depositary agent for the Preferred
Shares depositary receipts representing such number of one
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one-thousandths of a Preferred Share as are to be purchased (in which case certificates for
the Preferred Shares represented by such receipts shall be deposited by the transfer agent with the
depositary agent) and the Company hereby directs any such depositary agent to comply with such
request, (ii) when appropriate, requisition from the Company the amount of cash to be paid in lieu
of issuance of fractional Preferred Shares in accordance with
Section 14 hereof, (iii) promptly after
receipt of such certificates or depositary receipts, cause the same to be delivered to or upon the
order of the registered holder of such Right Certificate, registered in such name or names as may
be designated by such holder and (iv) when appropriate, after
receipt, promptly deliver such cash to or upon
the order of the registered holder of such Right Certificate.
(d)
Except as otherwise provided herein, in case the registered holder of any Right Certificate shall exercise less than all the
exercisable Rights evidenced thereby, a new Right Certificate
evidencing Rights equivalent to the exercisable Rights
remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right
Certificate or to his duly authorized assigns, subject to the provisions of Section 14 hereof.
(e) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor
the Company shall be obligated to undertake any action with respect
to a registered holder of Rights 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 following the form of election to purchase set
forth on the reverse side of the Right 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 Right Certificates. All Right Certificates
surrendered for the purpose of exercise, transfer, split up, combination or exchange shall, if
surrendered to the Company or to any of its agents, be delivered to the Rights Agent for
cancellation or in canceled form, or, if surrendered to the Rights Agent, shall be canceled by it,
and no Right 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 Right
Certificate purchased or acquired by the Company otherwise than upon the exercise thereof. The
Rights Agent shall deliver all canceled Right Certificates to the Company, or shall, at the written
request of the Company, destroy such canceled Right Certificates, and in such case shall deliver a
certificate of destruction thereof to the Company.
Section 9. Status and Availability of Preferred Shares.
(a) The Company covenants and agrees that it will take all such action as may be necessary to
ensure that all Preferred Shares delivered upon exercise of Rights shall, at the time of delivery
of the certificates for such Preferred Shares (subject to payment of the Purchase Price), be duly
and validly authorized and issued and fully paid and non-assessable shares.
(b) 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 Right Certificates or of any Preferred Shares upon the exercise of
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Rights. The Company shall not, however, be required to pay any transfer tax which may be
payable in respect of any transfer or delivery of Right Certificates to a person other than, or the
issuance or delivery of certificates or depositary receipts for the Preferred Shares in a name
other than that of, the registered holder of the Right Certificate evidencing Rights surrendered
for exercise, or to issue or to deliver any certificates or depositary receipts for Preferred
Shares upon the exercise of any Rights until any such tax shall have been paid (any such tax being
payable by the holder of such Right Certificate at the time of surrender) or until it has been
established to the Company’s reasonable satisfaction that no such tax is due.
(c) The Company covenants and agrees that it will cause to be reserved and kept available, out
of its authorized and unissued Preferred Shares or any Preferred Shares held in its treasury, the
number of Preferred Shares that will be sufficient to permit the exercise in full of all
outstanding Rights in accordance with Section 7 hereof.
Section 10. Preferred Shares Record Date. Each Person in whose name any certificate for
Preferred Shares is issued upon the exercise of Rights shall for all purposes be deemed to have
become the holder of record of the Preferred Shares represented thereby on, and such certificate
shall be dated, the date upon which the Right Certificate evidencing such Rights was duly
surrendered and payment of the Purchase Price (and any applicable transfer taxes) was made. Prior
to the exercise of the Rights evidenced thereby, the holder of a Right Certificate shall not be
entitled to any rights of a holder of Preferred Shares for which the Rights shall be exercisable,
including, without limitation, the right to vote, to receive dividends or other distributions or to
exercise any preemptive rights, and shall not be entitled to receive any notice of any proceedings
of the Company, except as provided herein.
Section 11. Adjustment of Purchase Price, Number of Shares or Number of Rights.
(a) (i) In the event the Company shall at any time after the date of this Agreement (A)
declare and pay a dividend on the Preferred Shares payable in Preferred Shares, (B) subdivide the
outstanding Preferred Shares, (C) combine the outstanding Preferred Shares into a smaller number of
Preferred Shares or (D) issue any shares of its capital stock in a reclassification of the
Preferred Shares (including any such reclassification in connection with a consolidation or merger
in which the Company is the continuing or surviving corporation), except as otherwise provided in
this Section 11(a), the Purchase Price in effect at the time of the record date for such dividend
or of the effective date of such subdivision, combination or reclassification, and the number and
kind of shares of capital stock issuable on such date, shall be proportionately adjusted so that
the holder of any Right exercised after such time shall be entitled to receive the aggregate number
and kind of shares of capital stock which, if such Right had been exercised immediately prior to
such date, he would have owned upon such exercise and been entitled to receive by virtue of such
dividend, subdivision, combination or reclassification; provided, however, that in
no event shall the consideration to be paid upon the exercise of one Right be less than the
aggregate par value of the shares of capital stock of the Company issuable upon exercise of one
Right.
(ii) Subject to the following paragraph of this subparagraph (ii) and to Section 24 of this
Agreement, in the event any Person shall become an Acquiring Person, each
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holder of a Right shall thereafter have a right to receive, upon exercise thereof at a price
equal to the then current Purchase Price multiplied by the number of one one-thousandths of a
Preferred Share for which a Right is then exercisable, in accordance with the terms of this
Agreement and in lieu of Preferred Shares, such number of Common Shares of the Company as shall
equal the result obtained by (x) multiplying the then current Purchase Price by the number of one
one-thousandths of a Preferred Share for which a Right is then exercisable and dividing that
product by (y) 50% of the then current per share market price of the Company’s Common Shares
(determined pursuant to Section 11(d) hereof) on the date such Person became an Acquiring Person.
In the event that any Person shall become an Acquiring Person and the Rights shall then be
outstanding, the Company shall not take any action that would eliminate or diminish the benefits
intended to be afforded by the Rights.
From and after the occurrence of such an event, any Rights that are or were acquired or
beneficially owned by such Acquiring Person (or any Associate or Affiliate of such Acquiring
Person) on or after the earlier of (x) the date of such event and (y) the Distribution Date shall
be void and any holder of such Rights shall thereafter have no right to exercise such Rights under
any provision of this Agreement. No Right Certificate shall be issued pursuant to Section 3 that
represents Rights beneficially owned by an Acquiring Person whose Rights would be void pursuant to
the preceding sentence or any Associate or Affiliate thereof; no Right Certificate shall be issued
at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be void
pursuant to the preceding sentence or any Associate or Affiliate thereof or to any nominee of such
Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent
for transfer to an Acquiring Person whose Rights would be void pursuant to the preceding sentence
or any Associate or Affiliate thereof shall be canceled.
(iii) In the event that the number of Common Shares which are authorized by the Company’s
certificate of incorporation and not outstanding or subscribed for, or reserved or otherwise
committed for issuance for purposes other than upon exercise of the Rights, are not sufficient to
permit the holder of each Right to purchase the number of Common Shares to which he would be
entitled upon the exercise in full of the Rights in accordance with the foregoing subparagraph
(ii) of paragraph (a) of this Section 11, or should the Board of Directors so elect, the Company
shall: (A) determine the excess of (1) the value of the Common Shares issuable upon the exercise
of a Right (calculated as provided in the last sentence of this subparagraph (iii)) pursuant to
Section 11(a)(ii) hereof (the “Current Value”) over (2) the Purchase Price (such excess, the
“Spread”), and (B) with respect to each Right, make adequate provision to substitute for such
Common Shares, upon payment of the applicable Purchase Price, any one or more of the following
having an aggregate value determined by the Board of Directors to be equal to the Current Value:
(1) cash, (2) a reduction in the Purchase Price, (3) Common Shares or other equity securities of
the Company (including, without limitation, shares, or units of shares, of preferred stock which
the Board of Directors of the Company has determined to have the same value as Common Shares (such
shares of preferred stock, “Common Stock Equivalents”)), (4) debt securities of the Company, or
(5) other assets; 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
first occurrence of an event triggering the rights to purchase Common Shares described in Section
11(a)(ii) (the “Section 11(a)(ii) Trigger Date”), then the Company shall be obligated to deliver,
upon the surrender
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for exercise of a Right and without requiring payment of the Purchase Price, Common Shares
(to the extent available) and then, if necessary, cash, which shares and cash have an aggregate
value equal to the Spread. If the Board of Directors of the Company shall determine in good faith
that it is likely that sufficient additional Common Shares 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 and the
last paragraph of Section 11(a)(ii) hereof, that such action shall apply uniformly to all
outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of
the Substitution Period in order to seek any authorization of additional shares 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 make a public
announcement, and shall deliver to the Rights Agent a statement, stating that the exercisability
of the Rights has been temporarily suspended. At such time as the suspension is no longer in
effect, the Company shall make another public announcement, and deliver to the Rights Agent a
statement, so stating. For purposes of this Section 11(a)(iii), the value of the Common Shares
shall be the current per share market price (as determined pursuant to Section 11(d)(i) hereof) of
the Common Shares on the Section 11(a)(ii) Trigger Date and the value of any common stock
equivalent shall be deemed to have the same value as the Common Shares 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 Shares entitling them (for a period expiring within forty-five
(45) calendar days after such record date) to subscribe for or purchase Preferred Shares (or shares
having the same rights, privileges and preferences as the Preferred Shares (“Equivalent Preferred
Shares”)) or securities convertible into Preferred Shares or Equivalent Preferred Shares at a price
per Preferred Share or Equivalent Preferred Share (or having a conversion price per share, if a
security convertible into Preferred Shares or Equivalent Preferred Shares) less than the then
current per share market price of the Preferred Shares (as defined in Section 11(d)) on such record
date, the Purchase Price to be in effect after such record date shall be adjusted 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 Preferred Shares outstanding on such record date plus the number of
Preferred Shares which the aggregate offering price of the total number of Preferred Shares and/or
Equivalent Preferred Shares so to be offered (and/or the 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 Preferred Shares outstanding on such record date plus
the number of additional Preferred Shares and/or Equivalent Preferred Shares to be offered for
subscription or purchase (or into which the convertible securities so to be offered are initially
convertible); provided, however, that in no event shall the consideration to be
paid upon the exercise of one Right be less than the aggregate par value of the shares of capital
stock of the Company issuable upon exercise of one Right. In case such subscription price may be
paid in a consideration part or all of which shall be in a form other than cash, the value of such
consideration shall be as determined in good faith by the Board of Directors of the
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Company, whose determination shall be described in a statement filed with the Rights Agent.
Preferred Shares owned by or held for the account of the Company shall not be deemed outstanding
for the purpose of any such computation. Such adjustment shall be made successively whenever such
a record date is fixed; and in the event that such rights, options or warrants are not so issued,
the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such
record date had not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all
holders of the Preferred Shares (including any such distribution made in connection with a
consolidation or merger in which the Company is the continuing or surviving corporation) of
evidences of indebtedness or assets (other than a regular quarterly cash dividend or a dividend
payable in Preferred Shares) 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 then current per share market price of the Preferred
Shares on such record date, less the fair market value (as determined in good faith by the Board of
Directors of the Company, whose determination shall be described in a statement filed with the
Rights Agent) of the portion of the assets or evidences of indebtedness so to be distributed or of
such subscription rights or warrants applicable to one Preferred Share and the denominator of which
shall be such current per share market price of the Preferred Shares; provided,
however, that in no event shall the consideration to be paid upon the exercise of one Right
be less than the aggregate par value of the shares of capital stock of the Company to be issued
upon exercise of one Right. Such adjustments shall be made successively whenever such a record
date is fixed; and in the event that such distribution is not so made, the Purchase Price shall
again be adjusted to be the Purchase Price which would then be in effect if such record date had
not been fixed.
(d) (i) Except
as otherwise provided herein, for the purpose of any computation hereunder, the “current per share market price” of
any security (a “Security” for the purpose of this Section 11(d)(i)) on any date shall be deemed to
be the average of the daily closing prices per share of such Security for the thirty (30)
consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date;
provided, however, that in the event that the current per share market price of the
Security is determined during a period following the announcement by the issuer of such Security of
(A) a dividend or distribution on such Security payable in shares of such Security or securities
convertible into such shares, or (B) any subdivision, combination or reclassification of such
Security and prior to the expiration of thirty (30) Trading Days after the ex-dividend date for
such dividend or distribution, or the record date for such subdivision, combination or
reclassification, then, and in each such case, the current per share market price shall be
appropriately adjusted to reflect the current market price per share equivalent of such Security.
The closing price for each day shall be the last sale price, regular way, or, in case no such sale
takes place on such day, the average of the closing bid and asked prices, regular way, in either
case as reported in the principal consolidated transaction reporting system with respect to
securities listed or admitted to trading on the NASDAQ Global Market or, if the Security is not
listed or admitted to trading on the NASDAQ Global Market, as reported in the principal
consolidated transaction reporting system with respect to securities listed on the principal
national securities exchange on which the Security is listed or admitted to trading or, if the
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Security is not listed or admitted to trading on any national securities exchange, the last
quoted price or, if not so quoted, the average of the high bid and low asked prices in the
over-the-counter bulletin board market, as reported by the National Association of Securities
Dealers, Inc. Automated Quotations System (“NASDAQ”), the Financial Industry Regulatory Authority
(“FINRA”) or such other system then in use, or, if on any such date the Security is not quoted by
any such organization, the average of the closing bid and asked prices as furnished by a
professional market maker making a market in the Security selected by the Board of Directors of the
Company. The term “Trading Day” shall mean a day on which the principal national securities
exchange on which the Security is listed or admitted to trading is open for the transaction of
business or, if the Security is not listed or admitted to trading on any national securities
exchange, a Business Day.
(ii) For
the purpose of any computation hereunder, if the Preferred Shares are
publicly traded, the “current per share market price” of
the Preferred Shares shall be determined in accordance with the method set forth in Section
11(d)(i). If the Preferred Shares are not publicly traded but the
Common Shares are publicly traded, the “current per share market price”
of the Preferred Shares shall be conclusively deemed to be the current per share market price of
the Common Shares as determined pursuant to Section 11(d)(i) (appropriately adjusted to reflect
any stock split, stock dividend or similar transaction occurring after the date hereof),
multiplied by 1000. If neither the Common Shares nor the Preferred Shares are publicly held or so
listed or traded, “current per share market price” shall mean the fair value per share as
determined in good faith by the Board of Directors of the Company, whose determination shall be
described in a statement filed with the Rights Agent.
(e) No adjustment in the Purchase Price shall be required unless such adjustment would require
an increase or decrease of at least 1% in the Purchase Price; provided, 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 one ten-millionth of a Preferred
Share or one ten-thousandth of any other share or security as the case may be. Notwithstanding the
first sentence of this Section 11(e), any adjustment required by this Section 11 shall be made no
later than three (3) years from the date of the transaction which requires such adjustment.
(f) If as a result of an adjustment made pursuant to Section 11(a) hereof, the holder of any
Right thereafter exercised shall become entitled to receive any shares of capital stock of the
Company other than Preferred Shares, the number of such other shares so receivable upon exercise of
any Right shall thereafter be subject to adjustment from time to time in a manner and on terms as
nearly equivalent as practicable to the provisions with respect to the Preferred Shares contained
in Section 11(a) through (c), inclusive, and the provisions of Section 7, Section 9, Section 10 and
Section 13 with respect to the Preferred Shares shall apply on like terms to any such other shares.
(g) All Rights originally issued by the Company subsequent to any adjustment made to the
Purchase Price hereunder shall evidence the right to purchase, at the adjusted Purchase Price, the
number of one one-thousandths of a Preferred Share purchasable from time to time hereunder upon
exercise of the Rights, all subject to further adjustment as provided herein.
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(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 Section 11(b) and
Section 11(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-thousandths of a Preferred Share (calculated to the nearest one ten-millionth of a Preferred
Share) obtained by (i) multiplying (x) the number of one one-thousandths of a share covered by a
Right immediately prior to this adjustment by (y) the Purchase Price in effect immediately prior to
such adjustment of the Purchase Price and (ii) dividing the product so obtained by the Purchase
Price in effect immediately after such adjustment of the Purchase Price.
(i) The Company may elect on or after the date of any adjustment of the Purchase Price to
adjust the number of Rights in substitution for any adjustment in the number of one one-thousandths
of a Preferred Share purchasable upon the exercise of a Right. Each of the Rights outstanding
after such adjustment of the number of Rights shall be exercisable for the number of one
one-thousandths of a Preferred Share for which a Right was exercisable immediately prior to such
adjustment. Each Right held of record prior to such adjustment of the number of Rights shall
become that number of Rights (calculated to the nearest one hundred-thousandth) obtained by
dividing the 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 Right Certificates have been distributed, shall be at least ten (10) days later than the date
of the public announcement. If Right Certificates have been distributed, 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 Right Certificates on such record date Right
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 Right Certificates
held by such holders prior to the date of adjustment, and upon surrender thereof, if required by
the Company, new Right Certificates evidencing all the Rights to which such holders shall be
entitled after such adjustment. Right Certificates to be so distributed shall be issued, executed
and countersigned in the manner provided for herein and shall be registered in the names of the
holders of record of Right Certificates on the record date specified in the public announcement.
(j) Irrespective of any adjustment or change in the Purchase Price or the number of one
one-thousandths of a Preferred Share issuable upon the exercise of the Rights, the Right
Certificates theretofore and thereafter issued may continue to express the Purchase Price and the
number of one one-thousandths of a Preferred Share which were expressed in the initial Right
Certificates issued hereunder.
(k) Before taking any action that would cause an adjustment reducing the Purchase Price below
one one-thousandths of the then par value of the Preferred Shares issuable upon exercise of the
Rights, the Company shall take any corporate action which may, in the opinion of
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its counsel, be necessary in order that the Company may validly and legally issue fully paid
and non-assessable Preferred Shares at such adjusted Purchase Price.
(l) In any case in which this Section 11 shall require that an adjustment in the Purchase
Price be made effective as of a record date for a specified event, the Company may elect to defer
until the occurrence of such event the issuing to the holder of any Right exercised after such
record date of the Preferred Shares and other capital stock or securities of the Company, if any,
issuable upon such exercise over and above the Preferred Shares and other capital stock or
securities of the Company, if any, issuable upon such exercise on the basis of the Purchase Price
in effect prior to such adjustment; provided, however, that the Company shall
deliver to such holder a due xxxx or other appropriate instrument evidencing such holder’s right to
receive such additional shares upon the occurrence of the event requiring such adjustment.
(m) Anything in this Section 11 to the contrary notwithstanding, the Company shall be entitled
to make such adjustments in the Purchase Price, in addition to those adjustments expressly required
by this Section 11, as and to the extent that it in its sole discretion shall determine to be
advisable in order that any (i) combination or subdivision of the Preferred Shares, (ii) issuance
wholly for cash of any Preferred Shares at less than the current market price, (iii) issuance
wholly for cash of Preferred Shares or securities which by their terms are convertible into or
exchangeable for Preferred Shares, (iv) dividends on Preferred Shares payable in Preferred Shares
or (v) issuance of any rights, options or warrants referred to hereinabove in Section 11(b),
hereafter made by the Company to holders of its Preferred Shares shall not be taxable to such
stockholders.
(n)
Notwithstanding anything herein to the contrary, in the event that at any time after the date of this Agreement and prior to the
Distribution Date, the Company shall (i) declare and pay any dividend on the Common Shares payable
in Common Shares or (ii) effect a subdivision, combination or consolidation of the Common Shares
(by reclassification or otherwise other than by payment of dividends in Common Shares) into a
greater or lesser number of Common Shares, then in any such case (i) the number of one
one-thousandths of a Preferred Share purchasable after such event upon proper exercise of each
Right shall be determined by multiplying the number of one one-thousandths of a Preferred Share so
purchasable immediately prior to such event by a fraction, the numerator of which is the number of
Common Shares outstanding immediately before such event and the denominator of which is the number
of Common Shares outstanding immediately after such event, and (ii) each Common Share outstanding
immediately after such event shall have issued with respect to it that number of Rights which each
Common Share outstanding immediately prior to such event had issued with respect to it. The
adjustments provided for in this Section 11(n) shall be made successively whenever such a dividend
is declared or paid or such a subdivision, combination or consolidation is effected.
Section 12. Certificate of Adjustment. Whenever an adjustment is made as provided in
Section 11 and Section 13 hereof, the Company shall promptly (a) prepare a certificate setting
forth such adjustment, and a brief statement of the facts accounting for such adjustment, (b) file
with the Rights Agent and with each transfer agent for the Common Shares or the Preferred Shares a
copy of such certificate and (c) if such adjustment occurs following a Distribution Date, mail a
brief summary thereof to each holder of a Right Certificate in accordance with Section 25
- 15 -
hereof. The Rights Agent shall be fully protected in relying on any such certificate and on any
adjustment therein contained and shall not be obligated or responsible for calculating any
adjustment nor shall it be deemed to have knowledge of such an adjustment unless and until it shall
have received such certificate.
Section 13. Consolidation, Merger or Sale or Transfer of Assets or Earning Power. In the
event that, at any time after a Person becomes an Acquiring Person, directly or indirectly, (i) the
Company shall consolidate with, or merge with and into, any other Person, (ii) any Person shall
consolidate with the Company, or merge with and into the Company and the Company shall be the
continuing or surviving corporation of such merger and, in connection with such merger, all or part
of the Common Shares shall be changed into or exchanged for stock or other securities of any other
Person (or of the Company) or cash or any other property, or (iii) the Company shall sell or otherwise
transfer (or one or more of its Subsidiaries shall sell or otherwise transfer), in one or more
transactions, assets or earning power aggregating 50% or more of the assets or earning power of the
Company and its Subsidiaries (taken as a whole) to any other Person other than the Company or one
or more of its wholly-owned Subsidiaries, then, and in each such case, proper provision shall be
made so that (A) each holder of a Right (except as otherwise provided herein) shall thereafter have
the right to receive, upon the exercise thereof at a price equal to the then current Purchase Price
multiplied by the number of one one-thousandths of a Preferred Share for which a Right is then
exercisable, in accordance with the terms of this Agreement and in lieu of Preferred Shares, such
number of Common Shares of such other Person (including the Company as successor thereto or as the
surviving corporation) as shall equal the result obtained by (x) multiplying the then current
Purchase Price by the number of one one-thousandths of a Preferred Share for which a Right is then
exercisable and dividing that product by (y) 50% of the then current per share market price of the
Common Shares of such other Person (determined pursuant to Section 11(d) hereof) on the date of
consummation of such consolidation, merger, sale or transfer; (B) the issuer of such Common Shares
shall thereafter be liable for, and shall assume, by virtue of such consolidation, merger, sale or
transfer, all the obligations and duties of the Company pursuant to this Agreement; (C) the term
"Company” shall thereafter be deemed to refer to such issuer; and (D) such issuer shall take such
steps (including, but not limited to, the reservation of a sufficient number of its Common Shares
in accordance with Section 9 hereof) in connection with such consummation as may be necessary to
assure that the provisions hereof shall thereafter be applicable, as nearly as reasonably may be,
in relation to the Common Shares thereafter deliverable upon the exercise of the Rights. The
Company covenants and agrees that it shall not consummate any such consolidation, merger, sale or
transfer unless prior thereto the Company and such issuer shall have executed and delivered to the
Rights Agent a supplemental agreement so providing. The Company shall not enter into any
transaction of the kind referred to in this Section 13 if at the time of such transaction there are
any rights, warrants, instruments or securities outstanding or any agreements or arrangements
which, as a result of the consummation of such transaction, would eliminate or substantially
diminish the benefits intended to be afforded by the Rights. The provisions of this Section 13
shall similarly apply to successive mergers or consolidations or sales or other transfers. For
purposes hereof, the “earning power” of the Company and its Subsidiaries shall be determined in
good faith by the Company’s Board of Directors on the basis of the operating earnings of each
business operated by the Company and its Subsidiaries during the three (3) fiscal years preceding
the date of such determination (or, in the case of any business not operated by the Company or any Subsidiary during three (3) full
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fiscal years preceding such date, during the period such business was operated by the Company or
any Subsidiary).
Section 14. Fractional Rights and Fractional Shares.
(a) The Company shall not be required to issue fractions of Rights or to distribute Right
Certificates which evidence fractional Rights. In lieu of such fractional Rights, there shall be
paid to the registered holders of the Right Certificates with regard to which such fractional
Rights would otherwise be issuable, an amount in cash equal to the same fraction of the current
market value of a whole Right. For the purposes of this Section 14(a), the current market value of
a whole Right shall be the closing price of the Rights for the Trading Day immediately prior to the
date on which such fractional Rights would have been otherwise issuable. The closing price for any
day shall be the last sale price, regular way, or, in case no such sale takes place on such day,
the average of the closing bid and asked prices, regular way, in either case as reported in the
principal consolidated transaction reporting system with respect to securities listed or admitted
to trading on the NASDAQ Global Market or, if the Rights are not listed or admitted to trading on
the NASDAQ Global Market, 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 bulletin board market, as reported by NASDAQ,
FINRA or such other system then in use or, if on any such date the Rights are not quoted by any
such organization, the average of the closing bid and asked prices as furnished by a professional
market-maker making a market in the Rights selected by the Board of Directors of the Company. If
on any such date no such market maker is making a market in the Rights, the fair value of the
Rights on such date as determined in good faith by the Board of Directors of the Company shall be
used.
(b) The Company shall not be required to issue fractions of Preferred Shares (other than
fractions which are integral multiples of one one-thousandths (subject to appropriate adjustment in
the case of a subdivision or combination) of a Preferred Share) upon exercise of the Rights or to
distribute certificates which evidence fractional Preferred Shares (other than fractions which are
integral multiples of one one-thousandths of a Preferred Share). Fractions of Preferred Shares in
integral multiples of one one-thousandths of a Preferred Share may, at the election of the Company,
be evidenced by depositary receipts, pursuant to an appropriate agreement between the Company and a
depositary selected by it; provided, that such agreement shall provide that the holders of
such depositary receipts shall have all the rights, privileges and preferences to which they are
entitled as beneficial owners of the Preferred Shares represented by such depositary receipts. In
lieu of fractional Preferred Shares that are not integral multiples of one one-thousandth of a
Preferred Share, the Company shall pay to each registered holder of Right 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 Preferred Share as the fraction of one Preferred Share that such holder
would otherwise receive upon the exercise of the aggregate number of rights exercised by such
holder. For the purposes of this Section 14(b), the current market value of a Preferred Share
shall be the closing price of a Preferred Share (as determined
- 17 -
pursuant to the second sentence of Section 11(d)(i) hereof) for the Trading Day immediately
prior to the date of such exercise.
(c) The holder of a Right by the acceptance of the Right expressly waives any right to receive
fractional Rights or fractional shares upon exercise of a Right (except as provided above).
Section 15. Rights of Action. All rights of action in respect of this Agreement, excepting
the rights of action given to the Rights Agent under Section 18 hereof, are vested in the
respective registered holders of the Right Certificates (and, prior to the Distribution Date, the
registered holders of the Common Shares); and any registered holder of any Right Certificate (or,
prior to the Distribution Date, of the Common Shares) may, without the consent of the Rights Agent
or of the holder of any other Right Certificate (or, prior to the Distribution Date, of the Common
Shares), on 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 Right Certificate in the manner provided in such
Right Certificate and in this Agreement. Without limiting the foregoing or any remedies available
to the holders of Rights, it is specifically acknowledged that the holders of Rights would not have
an adequate remedy at law for any breach of this Agreement and will be entitled to specific
performance of the obligations under, and injunctive relief against actual or threatened violations
of the obligations of any Person subject to, this Agreement.
Section 16. Agreement of Right Holders. Every holder of a Right, by accepting the same,
consents and agrees with the Company and the Rights Agent and with every other holder of a Right
that:
(a) prior to the Distribution Date, the Rights will be transferable only in connection with
the transfer of the Common Shares;
(b) after the Distribution Date, the Right Certificates are transferable only on the registry
books maintained by the Rights Agent if surrendered at the principal office of the Rights Agent,
duly endorsed or accompanied by a proper instrument of transfer with a completed form of
certification; and
(c) the Company and the Rights Agent may deem and treat the person in whose name the Right
Certificate (or, prior to the Distribution Date, the associated
Common Shares certificate or book entry Common Shares) is
registered as the absolute owner thereof and of the Rights evidenced thereby (notwithstanding any
notations of ownership or writing on the Right Certificates or the associated Common Shares
certificate (or notices provided to holders of book entry Common
Shares) made by anyone other than the Company or the Rights Agent) for all purposes whatsoever,
and neither the Company nor the Rights Agent shall be affected by any notice to the contrary.
Section 17. Right Certificate Holder Not Deemed a Stockholder. No holder, as such, of any
Right Certificate shall be entitled to vote, receive dividends or be deemed for any purpose the
holder of the Preferred Shares or any other securities of the Company which may at any time be
issuable on the exercise of the Rights represented thereby nor shall anything contained herein or
- 18 -
in any Right Certificate be construed to confer upon the holder of any Right Certificate, as such,
any of the rights of a stockholder of the Company or any right to vote for the election of
directors or upon any matter submitted to stockholders at any meeting thereof, or to give or
withhold consent to any corporate action, or to receive notice of meetings or other actions
affecting stockholders (except as provided in Section 25 hereof), or to receive dividends or
subscription rights, or otherwise, until the Right or Rights evidenced by such Right Certificate
shall have been exercised in accordance with the provisions hereof.
Section 18. Concerning the Rights Agent. The Company agrees to pay to the Rights Agent
reasonable compensation for all services rendered by it hereunder and, from time to time, on demand
of the Rights Agent, its reasonable expenses and counsel fees and other disbursements incurred in
the administration and execution of this Agreement and the exercise and performance of its duties
hereunder. The Company also agrees to indemnify the Rights Agent for, and to hold it harmless
against, any loss, liability, or expense, incurred without gross negligence, bad faith or willful
misconduct on the part of the Rights Agent, for anything done or omitted by the Rights Agent in
connection with the acceptance and administration of this Agreement, including the costs and
expenses of defending against any claim or liability in connection therewith. The indemnification
provided for hereunder shall survive the expiration of the Rights and the termination of this
Agreement. The costs and expenses of enforcing this right of indemnification shall also be paid by
the Company.
The Rights Agent may conclusively rely upon and shall be protected and shall incur no
liability for or in respect of any action taken, suffered or omitted by it in connection with its
administration of this Agreement in reliance upon any Right Certificate or certificate for
Preferred Shares or for other securities of the Company, instrument of assignment or transfer,
power of attorney, endorsement, affidavit, letter, notice, direction, consent, certificate,
statement, or other 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. Notwithstanding
anything in this Agreement to the contrary, in no event shall the Rights Agent be liable for
special, indirect 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 likelihood of such loss or
damage and regardless of the form of the action.
Section 19. Merger or Consolidation or Change of Name of Rights Agent. Any corporation
into which the Rights Agent or any successor Rights Agent may be merged or with which it may be
consolidated, or any Person resulting from any merger or consolidation to which the Rights
Agent or any successor Rights Agent shall be a party, or any Person succeeding to the
corporate trust 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 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 Right Certificates shall have been countersigned but not delivered, any such successor
Rights Agent may adopt the countersignature of the predecessor Rights Agent and deliver such Right
Certificates so countersigned; and in case at that time any of the Right Certificates shall not
have been countersigned, any successor Rights Agent may
- 19 -
countersign such Right Certificates either in the name of the predecessor Rights Agent or in the
name of the successor Rights Agent; and in all such cases such Right Certificates shall have the
full force provided in the Right Certificates and in this Agreement.
In case at any time the name of the Rights Agent shall be changed and at such time any of the
Right Certificates shall have been countersigned but not delivered, the Rights Agent may adopt the
countersignature under its prior name and deliver Right Certificates so countersigned; and in case
at that time any of the Right Certificates shall not have been countersigned, the Rights Agent may
countersign such Right Certificates either in its prior name or in its changed name; and in all
such cases such Right Certificates shall have the full force provided in the Right Certificates and
in this Agreement.
Section 20. Duties of Rights Agent. The Rights Agent undertakes the duties and obligations
expressly set forth in this Agreement and no implied duties or obligations shall be read into this
Agreement against the Rights Agent. The Rights Agent shall perform those duties and obligations
upon the following terms and conditions, by all of which the Company and the holders of Right
Certificates, by their acceptance thereof, shall be bound:
(a) Before the Rights Agent acts or refrains from acting, it may consult with legal counsel
(who may be legal counsel for the Company), and the opinion of such counsel shall be full and
complete authorization and protection to the Rights Agent as to any action taken or omitted by it
in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Agreement the Rights Agent shall deem
it necessary or desirable that any fact or matter be proved or established by the Company prior to
taking or suffering any action hereunder, such fact or matter (unless other evidence in respect
thereof be herein specifically prescribed) may be deemed to be conclusively proved and established
by a certificate signed by any one of the Chairman of the Board, the Chief Executive Officer and
President, a Vice President, the Treasurer or the Secretary of the Company and delivered to the
Rights Agent; and such certificate shall be full authorization to the Rights Agent for any action
taken or suffered in good faith by it under the provisions of this Agreement in reliance upon such
certificate.
(c) The Rights Agent shall be liable hereunder only for its own gross negligence, bad faith or
willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or
recitals contained in this Agreement or in the Right Certificates (except as to its
countersignature thereof) or be required to verify the same, but all such statements and recitals
are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be under any responsibility in respect of the validity of this
Agreement or the execution and delivery hereof (except the due execution hereof by the Rights
Agent) or in respect of the validity or execution of any Right 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 Right Certificate; nor shall it be
- 20 -
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 Right 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 Preferred Shares to be issued pursuant to this
Agreement or any Right Certificate or as to whether any Preferred Shares 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 any one of the Chairman of the Board, the Chief
Executive Officer and President, a Vice President, the Secretary or the Treasurer of the Company,
and to apply to such officers for advice or instructions in connection with its duties, and it
shall not be liable for any action taken or suffered to be taken by it in good faith in accordance
with instructions of any such officer. Any application by the Rights Agent for written
instructions from the Company may, at the option of the Rights Agent, set forth in writing any
action proposed to be taken or omitted by the Rights Agent under this Agreement and the date on or
after which such action shall be taken or such omission shall be effective. The Rights Agent shall
not be liable for any action taken by, or omission of, the Rights Agent in accordance with a
proposal included in any such application on or after the date specified in such application (which
date shall not be less than ten (10) Business Days after the date any officer of the Company
actually receives such application, unless any such officer shall have consented in writing to an
earlier date) unless, prior to taking any such action (or the effective date in the case of an
omission), the Rights Agent shall have received, in response to such application, written
instructions with respect to the proposed action or omission specifying a different action to be
taken or omitted.
(h) The Rights Agent and any stockholder, director, officer or employee of the Rights Agent
may buy, sell or deal in any of the Rights or other securities of the Company or become pecuniarily
interested in any transaction in which the Company may be interested, or contract with or lend
money to the Company or otherwise act as fully and freely as though it were not Rights Agent under
this Agreement. Nothing herein shall preclude the Rights Agent from acting in any other capacity
for the Company or for any other legal entity.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it
or perform any duty hereunder either itself or by or through its attorneys or agents, and the
Rights Agent shall not be answerable or accountable for any act, default, neglect or misconduct of
any such attorneys or agents or for any loss to the Company resulting from any such act, default,
neglect or misconduct, provided reasonable care was exercised in the selection and continued
employment thereof.
- 21 -
(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) The Rights Agent shall not be required to take notice or be deemed to have notice of any
fact, event or determination (including, without limitation, any dates or events defined in this
Agreement or the designation of any Person as an Acquiring Person, Affiliate or Associate) under
this Agreement unless and until the Rights Agent shall be specifically notified in writing by the
Company of such fact, event or determination.
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, in the event that the Rights Agent or one of its Affiliates is
not also the transfer agent for the Company, to each transfer agent of the Common Shares and the
Preferred Shares by registered or certified mail. In the event the transfer agency relationship in
effect between the Company and the Rights Agent terminates, the Rights Agent will be deemed to have
resigned automatically and will be discharged from its duties under this Agreement as of the
effective date of such termination, and the Company shall be responsible for sending any required
notice. The Company may remove the Rights Agent or any successor Rights Agent upon thirty (30)
days’ notice in writing, mailed to the Rights Agent or successor Rights Agent, as the case may be,
and to each transfer agent of the Common Shares and the Preferred Shares by registered or certified
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 Right Certificate (who shall, with such notice,
submit his Right Certificate for inspection by the Company), then the registered holder of any
Right 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 Person organized and doing business under the laws of the United States or of any state
of the United States, in good standing, which is authorized under such laws to exercise corporate
trust powers and is subject to supervision or examination by federal or state authority and which
has at the time of its appointment as Rights Agent, along with its Affiliates, a combined capital
and surplus of at least $50 million. After appointment, the successor Rights Agent shall be vested
with the same powers, rights, duties and responsibilities as if it had been originally named as
Rights Agent without further act or deed; but the predecessor Rights Agent shall deliver and
transfer to the successor Rights Agent any property at the time held by it hereunder, and execute
and deliver any further assurance, conveyance, act or deed necessary for the purpose. Not later
than the effective date of any such appointment the Company shall file notice thereof in writing
with the predecessor Rights Agent and each transfer agent of the Common Shares and the Preferred
Shares. Failure to give any notice provided for in this Section 21, however, or any defect
therein, shall not affect the legality or validity of the resignation or removal of the Rights
Agent or the appointment of the successor Rights Agent, as the case may be.
- 22 -
Section 22. Issuance of New Right Certificates. Notwithstanding any of the provisions of
this Agreement or of the Rights to the contrary, the Company may, at its option, issue new Right
Certificates evidencing Rights in such form as may be approved by 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 Right Certificates made in accordance with the
provisions of this Agreement. In addition, in connection with the
issuance or sale of Common Shares
following the Distribution Date and prior to the earlier of the Redemption Date and the Close of
Business on the Final Expiration Date, the Company may with respect
to shares of Common Shares so
issued or sold pursuant to (i) the exercise of stock options, (ii) under any employment plan or
arrangement, (iii) upon the exercise, conversion or exchange of securities, notes or debentures
issued by the Company or (iv) a contractual obligation of the Company, in each case existing prior
to the Distribution Date, issue Right Certificates representing the appropriate number of Rights in
connection with such issuance or sale.
Section 23. Redemption.
(a) The Board of Directors of the Company may, at its option, at any time prior to such time
as any Person becomes an Acquiring Person, redeem all but not less than all the then outstanding
Rights at a redemption price of $0.001 per Right, appropriately adjusted to reflect any stock
split, stock dividend or similar transaction occurring after the date hereof (such redemption price
being hereinafter referred to as the “Redemption Price”). The redemption of the Rights by the
Board of Directors may be made effective at such time, on such basis and subject to such conditions
as the Board of Directors in its sole discretion may establish.
(b) Immediately upon the time of the effectiveness of the redemption of the Rights pursuant to
paragraph (a) of this Section 23 or such earlier time as may be determined by the Board of
Directors of the Company in the action ordering such redemption (although not earlier than the time
of such action) (such time the “Redemption Date”), and without any further action and without any
notice, the right to exercise the Rights shall terminate and the only right thereafter of the
holders of Rights shall be to receive the Redemption Price. The Company shall promptly give public
notice of any such redemption; provided, however, that the failure to give, or any
defect in, any such notice shall not affect the validity of such redemption. Within ten (10) days
after such action of the Board of Directors ordering the redemption of the Rights pursuant to
paragraph (a), the Company shall mail a notice of redemption to all the holders of the then
outstanding Rights at their last addresses as they appear upon the registry books of the Rights
Agent or, prior to the Distribution Date, on the registry books of the transfer agent for the
Common Shares. Any notice which is mailed in the manner herein provided shall be deemed given,
whether or not the holder receives the notice. If the payment of the Redemption Price is not
included with such notice, each such notice shall state the method by which the payment of the
Redemption Price will be made. Neither the Company nor any of its Affiliates or Associates may
redeem, acquire or purchase for value any Rights at any time in any manner other than that
specifically set forth in this Section 23 or in Section 24 hereof, other than in connection with
the purchase of Common Shares prior to the Distribution Date.
- 23 -
Section 24. Exchange.
(a) The Board of Directors of the Company may, at its option, at any time after any Person
becomes an Acquiring Person, exchange all or part of the then outstanding and exercisable Rights
(which shall not include Rights that have become void pursuant to the provisions of Section
11(a)(ii) hereof) for Common Shares at an exchange ratio of one Common Share per Right (such
exchange ratio being hereinafter referred to as the “Exchange Ratio”). Notwithstanding the
foregoing, the Board of Directors shall not be empowered to effect such exchange at any time after
any Person (other than the Company, any Subsidiary of the Company, any employee benefit plan of the
Company or any such Subsidiary, or any entity holding Common Shares for or pursuant to the terms of
any such plan), together with all Affiliates and Associates of such Person, becomes the Beneficial
Owner of a majority of the Common Shares then outstanding.
(b) Immediately upon the action of the Board of Directors of the Company ordering the exchange
of any Rights pursuant to subsection (a) of this Section 24 and without any further action and
without any notice, the right to exercise such Rights shall terminate and the only right thereafter
of a holder of such Rights shall be to receive that number of Common Shares equal to the number of
such Rights held by such holder multiplied by the Exchange Ratio. The Company shall promptly give
public notice of any such exchange; provided, however, that the failure to give, or
any defect in, such notice shall not affect the validity of such exchange. The Company promptly
shall mail a notice of any such exchange to all of the holders of such Rights at their last
addresses as they appear upon the registry books of the Rights Agent. Any notice which is mailed
in the manner herein provided shall be deemed given, whether or not the holder receives the notice.
Each such notice of exchange will state the method by which the exchange of the Common Shares for
Rights will be effected and, in the event of any partial exchange, the number of Rights which will
be exchanged. Any partial exchange shall be effected pro rata based on the number
of Rights (other than Rights which have become void pursuant to the provisions of Section 11(a)(ii)
hereof) held by each holder of Rights.
(c) In any exchange pursuant to this Section 24, the Company, at its option, may substitute
Preferred Shares or Common Stock Equivalents for Common Shares exchangeable for Rights, at the
initial rate of one one-thousandths of a Preferred Share (or an appropriate number of Common Stock
Equivalents) for each Common Share, as appropriately adjusted to reflect adjustments in the voting
rights of the Preferred Shares pursuant to the terms thereof, so that the fraction of a Preferred
Share delivered in lieu of each Common Share shall have the same voting rights as one Common Share.
(d) In the event that there shall not be sufficient Common Shares, Preferred Shares or Common
Stock Equivalents authorized by the Company’s certificate of incorporation and not outstanding or
subscribed for, or reserved or otherwise committed for issuance for purposes other than upon
exercise of Rights, to permit any exchange of Rights as contemplated in accordance with this
Section 24, the Company shall take all such action as may be necessary to authorize additional
Common Shares, Preferred Shares or Common Stock Equivalents for issuance upon exchange of the
Rights.
- 24 -
(e) The Company shall not be required to issue fractions of Common Shares or to distribute
certificates which evidence fractional Common Shares. In lieu of such fractional Common Shares,
the Company shall pay to the registered holders of the Right Certificates with regard to which such
fractional Common Shares would otherwise be issuable an amount in cash equal to the same fraction
of the current per share market value of a whole Common Share. For the purposes of this paragraph
(e), the current per share market value of a whole Common Share shall be the closing price of a
Common Share (as determined pursuant to the second sentence of Section 11(d)(i) hereof) for the
Trading Day immediately prior to the date of exchange pursuant to this Section 24.
Section 25. Notice of Certain Events.
(a) In case the Company shall after the Distribution Date propose (i) to pay any dividend
payable in stock of any class to the holders of its Preferred Shares or to make any other
distribution to the holders of its Preferred Shares (other than a regular quarterly cash dividend),
(ii) to offer to the holders of its Preferred Shares rights or warrants to subscribe for or to
purchase any additional Preferred Shares or shares of stock of any class or any other securities,
rights or options, (iii) to effect any reclassification of its Preferred Shares (other than a
reclassification involving only the subdivision or combination of outstanding Preferred Shares), (iv) to effect
any consolidation or merger into or with, or to effect any sale or other transfer (or to permit one
or more of its Subsidiaries to effect any sale or other transfer), in one or more transactions, of
50% or more of the assets or earning power of the Company and its Subsidiaries (taken as a whole)
to, any other Person, (v) to effect the liquidation, dissolution or winding up of the Company, or
(vi) to declare or pay any dividend on the Common Shares payable in Common Shares or to effect a
subdivision, combination or consolidation of the Common Shares (by reclassification or otherwise
than by payment of dividends in Common Shares), then, in each such case, the Company shall give to
each holder of a Right Certificate, in accordance with Section 26 hereof, a notice of such proposed
action, which shall specify the record date for the purposes of such stock dividend, or
distribution of rights or warrants, or the date on which such reclassification, consolidation,
merger, sale, transfer, liquidation, dissolution, or winding up is to take place and the date of
participation therein by the holders of the Common Shares and/or Preferred Shares, if any such date
is to be fixed, and such notice shall be so given in the case of any action covered by clause (i)
or (ii) above at least ten (10) days prior to the record date for determining holders of the
Preferred Shares for purposes of such action, and in the case of any such other action, at least
ten (10) days prior to the date of the taking of such proposed action or the date of participation
therein by the holders of the Common Shares and/or Preferred Shares, whichever shall be the
earlier.
(b) In case any event set forth in Section 11(a)(ii) hereof shall occur, then the Company
shall as soon as practicable thereafter give to each holder of a Right Certificate, in accordance
with Section 26 hereof, a notice of the occurrence of such event, which notice shall describe such
event and the consequences of such event to holders of Rights under Section 11(a)(ii) hereof.
Section 26. Notices. Notices or demands authorized by this Agreement to be given or made
by the Rights Agent or by the holder of any Right Certificate to or on the Company shall be
- 25 -
sufficiently given or made if sent by overnight delivery service or first-class mail, postage
prepaid, addressed (until another address is filed in writing with the Rights Agent) as follows:
BioClinica, Inc.
000 Xxxxxxx-Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxx X. Xxxxxxx
000 Xxxxxxx-Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxx X. Xxxxxxx
Subject to the provisions of Section 21 hereof, any notice or demand authorized by this Agreement
to be given or made by the Company or by the holder of any Right Certificate to or on the Rights
Agent shall be sufficiently given or made if sent by overnight delivery service or registered or
certified mail and shall be deemed given upon receipt and, addressed (until another address is
filed in writing with the Company) as follows:
Computershare Trust Company, N.A.
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Client Services
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Client Services
Notices or demands authorized by this Agreement to be given or made by the Company or the Rights
Agent to the holder of any Right Certificate shall be sufficiently given or made if sent by
first-class mail, postage prepaid, addressed to such holder at the address of such holder as shown
on the registry books of the Company.
Section 27. Supplements and Amendments. The Company may from time to time, and the Rights
Agent shall, if the Company so directs, supplement or amend this Agreement without the approval of
any holders of Right Certificates in order to cure any ambiguity, to correct or supplement any
provision contained herein which may be defective or inconsistent with any other provisions herein,
or to make any change to or delete any provision hereof or to adopt any other provisions with
respect to the Rights which the Company may deem necessary or desirable; provided,
however, that from and after such time as any Person becomes an Acquiring Person, this
Agreement shall not be amended or supplemented in any manner which would adversely affect the
interests of the holders of Rights (other than an Acquiring Person and its Affiliates and
Associates). Any supplement or amendment authorized by this Section 27 will be evidenced by a
writing signed by the Company and the Rights Agent. Notwithstanding anything in this Agreement to
the contrary, no supplement or amendment that changes the rights, duties or obligations of the
Rights Agent under this Agreement will be effective against the Rights Agent without the execution
of such supplement or amendment by the Rights Agent.
Section 28. Successors. All the covenants and provisions of this Agreement by or for the
benefit of the Company or the Rights Agent shall bind and inure to the benefit of their respective
successors and assigns hereunder.
Section 29. Benefits of this Agreement. Nothing in this Agreement shall be construed to
give to any person or entity other than the Company, the Rights Agent and the registered holders of
the Right Certificates (and, prior to the Distribution Date, the Common Shares) any legal or
- 26 -
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 Right
Certificates (and, prior to the Distribution Date, the Common Shares).
Section 30. 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.
Section 31. Governing Law. This Agreement and each Right 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 to be made and performed entirely within such State.
Section 32. 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. A signature to this
Agreement transmitted electronically shall have the same authority, effect and enforceability as an
original signature.
Section 33. 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.
Section 34. Administration. The Board of Directors of the Company shall have the exclusive
power and authority to administer and interpret the provisions of this Agreement and to exercise
all rights and powers specifically granted to the Board of Directors or the Company or as may be
necessary or advisable in the administration of this Agreement. All such actions, calculations,
determinations and interpretations which are done or made by the Board of Directors in good faith
shall be final, conclusive and binding on the Company, the Rights Agent, the holders of the Rights
and all other parties and shall not subject the Board of Directors to any liability to the holders
of the Rights.
Section 35. Force Majeure. Notwithstanding anything to the contrary contained herein, the
Rights Agent shall not be liable for any delays or failures in performance resulting from acts
beyond its reasonable control including, without limitation, acts of God, terrorist acts, shortage
of supply, breakdowns or malfunctions, interruptions or malfunction of computer facilities, or loss
of data due to power failures or mechanical difficulties with information storage or retrieval
systems, labor difficulties, war or civil unrest.
** ** ** ** **
- 27 -
IN WITNESS WHEREOF, the parties hereto have caused this Rights Agreement to be duly executed
and their respective corporate seals to be hereunder affixed and attested, all as of the day and
year first above written.
Attest: | BIOCLINICA, INC. | |||||
/s/ Xxx X. Xxxxxxx
|
By: | /s/ Xxxx X. Xxxxxxxxx
|
||||
Title: President and Chief Executive Officer | ||||||
Attest: | COMPUTERSHARE
TRUST COMPANY, N.A., as Rights Agent |
|||||
/s/ Xxxx X. Xxxx |
By: | /s/ Xxxxxx Xxxxx | ||||
Name: Xxxxxx Xxxxx Title: Vice President |
- 28 -
EXHIBIT A
FORM
of
CERTIFICATE OF DESIGNATION
of
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
of
BIOCLINICA, INC.
(Pursuant to Section 151 of the Delaware General Corporation Law)
BioClinica, Inc., a corporation organized and existing under the General Corporation Law of
the State of Delaware (hereinafter called the “Corporation”), hereby certifies that the following
resolution was adopted by the Board of Directors of the Corporation as required by Section 151 of
the General Corporation Law at a meeting duly called and held on July 8, 2009:
RESOLVED, that pursuant to the authority granted to and vested in the Board of Directors of
this Corporation (hereinafter called the “Board of Directors” or the “Board”) in accordance with
the provisions of the Restated Certificate of Incorporation of the Corporation, as amended (the
“Certificate of Incorporation”), the Board of Directors hereby creates a series of Preferred Stock,
par value $0.00025 per share (the “Preferred Stock”), of the Corporation and hereby states the
designation and number of shares, and fixes the relative rights, preferences, and limitations
thereof as follows:
Section 1. Designation and Amount. The shares of this series shall be designated as
“Series A Junior Participating Preferred Stock” (the “Series A Preferred Stock”) and the number of
shares constituting the Series A Preferred Stock shall be 36,000. Such number of shares may be
increased or decreased by resolution of the Board of Directors; provided, that no decrease
shall reduce the number of shares of Series A Preferred Stock to a number less than the number of
shares then outstanding plus the number of shares reserved for issuance upon the exercise of
outstanding options, rights or warrants or upon the conversion of any outstanding securities issued
by the Corporation convertible into Series A Preferred Stock.
A-1
Section 2. Dividends and Distributions.
(A) Subject to the rights of the holders of any shares of any series of Preferred Stock (or
any other stock) ranking prior and superior to the Series A Preferred Stock with respect to
dividends, the holders of shares of Series A Preferred Stock shall be entitled to receive, when, as
and if declared by the Board of Directors out of funds legally available for the purpose, quarterly
dividends payable in cash on the last day of March, June, September and December in each year (each
such date being referred to herein as a “Quarterly Dividend Payment Date”), commencing on the first
Quarterly Dividend Payment Date after the first issuance of a share or fraction of a share of
Series A Preferred Stock, in an amount (if any) per share (rounded to the nearest cent), subject to
the provision for adjustment hereinafter set forth, equal to 1000 times the aggregate per share
amount of all cash dividends, and 1000 times the aggregate per share amount (payable in kind) of
all non-cash dividends or other distributions, other than a dividend payable in shares of Common
Stock, par value $0.00025 per share (the “Common Stock”), of the Corporation or a subdivision of the
outstanding shares of Common Stock (by reclassification or otherwise), declared on the Common Stock
since the immediately preceding Quarterly Dividend Payment Date or, with respect to the first
Quarterly Dividend Payment Date, since the first issuance of any share or fraction of a share of
Series A Preferred Stock. In the event the Corporation shall at any time declare or pay any
dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the amount to which holders of shares of Series A
Preferred Stock were entitled immediately prior to such event under the preceding sentence shall be
adjusted by multiplying such amount by a fraction, the numerator of which is the number of shares
of Common Stock outstanding immediately after such event and the denominator of which is the number
of shares of Common Stock that were outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or distribution on the Series A Preferred Stock
as provided in paragraph (A) of this Section immediately after it declares a dividend or
distribution on the Common Stock (other than a dividend payable in shares of Common Stock).
(C) Dividends due pursuant to paragraph (A) of this Section shall begin to accrue and be
cumulative on outstanding shares of Series A Preferred Stock from the Quarterly Dividend Payment
Date next preceding the date of issue of such shares, unless the date of issue of such shares is
prior to the record date for the first Quarterly Dividend Payment Date, in which case dividends on
such shares shall begin to accrue from the date of issue of such shares, or unless the date of
issue is a Quarterly Dividend Payment Date or is a date after the record date for the determination
of holders of shares of Series A Preferred Stock entitled to receive a quarterly dividend and
before such Quarterly Dividend Payment Date, in either of which events such dividends shall begin
to accrue and be cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid
dividends shall not bear interest. Dividends paid on the shares of Series A Preferred Stock in an
amount less than the total amount of such dividends at the time accrued and payable on such shares
shall be allocated pro rata on a share-
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by-share basis among all such shares at the time outstanding. The Board of Directors may fix
a record date for the determination of holders of shares of Series A Preferred Stock entitled to
receive payment of a dividend or distribution declared thereon, which record date shall be not more
than sixty (60) days prior to the date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series A Preferred Stock shall
have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth, each share of Series A
Preferred Stock shall entitle the holder thereof to 1000 votes on all matters submitted to a vote
of the stockholders of the Corporation. In the event the Corporation shall at any time declare or
pay any dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the number of votes per share to which holders of
shares of Series A Preferred Stock were entitled immediately prior to such event shall be adjusted
by multiplying such number by a fraction, the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which is the number of shares
of Common Stock that were outstanding immediately prior to such event.
(B) Except as otherwise provided in the Certificate of Incorporation, including any other
Certificate of Designations creating a series of Preferred Stock or any similar stock, or by law,
the holders of shares of Series A Preferred Stock and the holders of shares of Common Stock and any
other capital stock of the Corporation having general voting rights shall vote together as one
class on all matters submitted to a vote of stockholders of the Corporation.
(C) Except as set forth herein, or as otherwise required by law, holders of Series A Preferred
Stock shall have no special voting rights and their consent shall not be required (except to the
extent they are entitled to vote with holders of Common Stock as set forth herein) for taking any
corporate action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or distributions payable on the Series A
Preferred Stock as provided in Section 2 are in arrears, thereafter and until all accrued and
unpaid dividends and distributions, whether or not declared, on shares of Series A Preferred Stock
outstanding shall have been paid in full, the Corporation shall not:
(i) declare or pay dividends, or make any other distributions, on any shares of stock ranking
junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A
Preferred Stock;
(ii) declare or pay dividends, or make any other distributions, on any shares of stock ranking
on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Series
A Preferred Stock, except dividends paid ratably on the Series A
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Preferred Stock and all such parity stock on which dividends are payable or in arrears in
proportion to the total amounts to which the holders of all such shares are then entitled; or
(iii) redeem or purchase or otherwise acquire for consideration shares of any stock ranking
junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A
Preferred Stock, provided that the Corporation may at any time redeem, purchase or otherwise
acquire shares of any such junior stock in exchange for shares of any stock of the Corporation
ranking junior (as to dividends and upon dissolution, liquidation or winding up) to the Series A
Preferred Stock.
(B) The Corporation shall not permit any subsidiary of the Corporation to purchase or
otherwise acquire for consideration any shares of stock of the Corporation unless the Corporation
could, under paragraph (A) of this Section 4, purchase or otherwise acquire such shares at such
time and in such manner.
Section 5. Reacquired Shares. Any shares of Series A Preferred Stock purchased or
otherwise acquired by the Corporation in any manner whatsoever shall be retired and canceled
promptly after the acquisition thereof. The Corporation shall take all such actions as are
necessary to cause all such shares to become authorized but unissued shares of Preferred Stock that
may be reissued as part of a new series of Preferred Stock subject to the conditions and
restrictions on issuance set forth herein or in the Certificate of Incorporation, including any
Certificate of Designations creating a series of Preferred Stock or any similar stock, or as
otherwise required by law.
Section 6. Liquidation, Dissolution or Winding Up. Upon any liquidation, dissolution
or winding up of the Corporation the holders of shares of Series A Preferred Stock shall be
entitled to receive an aggregate amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 1000 times the aggregate amount to be distributed per share to
holders of shares of Common Stock plus an amount equal to any accrued and unpaid dividends. In the
event the Corporation shall at any time declare or pay any dividend on the Common Stock payable in
shares of Common Stock, or effect a subdivision or combination or consolidation of the outstanding
shares of Common Stock (by reclassification or otherwise than by payment of a dividend in shares of
Common Stock) into a greater or lesser number of shares of Common Stock, then in each such case the
aggregate amount to which holders of shares of Series A Preferred Stock were entitled immediately
prior to such event under the preceding sentence shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of Common Stock outstanding immediately
after such event and the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
Section 7. Consolidation, Merger, Etc. In case the Corporation shall enter into any
consolidation, merger, combination or other transaction in which the shares of Common Stock are
exchanged for or changed into other stock or securities, cash and/or any other property, then in
any such case each share of Series A Preferred Stock shall at the same time be similarly exchanged
or changed into an amount per share, subject to the provision for adjustment hereinafter set forth,
equal to 1000 times the aggregate amount of stock, securities, cash and/or
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any other property (payable in kind), as the case may be, into which or for which each share
of Common Stock is changed or exchanged. In the event the Corporation shall at any time declare or
pay any dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the amount set forth in the preceding sentence
with respect to the exchange or change of shares of Series A Preferred Stock shall be adjusted by
multiplying such amount by a fraction, the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which is the number of shares
of Common Stock that were outstanding immediately prior to such event.
Section 8. Amendment. The Certificate of Incorporation shall not be amended in any
manner, including in a merger or consolidation, which would alter, change, or repeal the powers,
preferences or special rights of the Series A Preferred Stock so as to affect them adversely
without the affirmative vote of the holders of at least two-thirds of the outstanding shares of
Series A Preferred Stock, voting together as a single class.
Section 9. Rank. The Series A Preferred Stock shall rank, with respect to the payment
of dividends and upon liquidation, dissolution and winding up, junior to all series of Preferred
Stock, and shall rank senior to the Common Stock as to such matters.
IN WITNESS WHEREOF, this Certificate of Designation is executed on behalf of the Corporation
by its duly authorized officer this 20th day of July, 2009.
BIOCLINICA, INC. |
||||
By: | ||||
Name: | ||||
Title: | ||||
A-5
EXHIBIT B
Form of Right Certificate
Certificate No. R- | Rights |
NOT EXERCISABLE AFTER July 20, 2019 OR EARLIER IF REDEMPTION OR EXCHANGE OCCURS.
THE RIGHTS ARE SUBJECT TO REDEMPTION AT $0.001 PER RIGHT AND TO EXCHANGE ON THE
TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS THAT
ARE OR WERE ACQUIRED OR BENEFICIALLY OWNED BY AN ACQUIRING PERSON OR ANY ASSOCIATES
OR AFFILIATES THEREOF (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT) OR ANY
SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID.
Right Certificate
BIOCLINICA, INC.
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 July 20, 2009 (the “Rights Agreement”), between
BioClinica, Inc., a Delaware corporation (the “Company”), and Computershare Trust Company, N.A.
(the “Rights Agent”), to purchase from the Company at any time after the Distribution Date (as such
term is defined in the Rights Agreement) and prior to 5:00 P.M., eastern time, on July 20, 2019, at
the principal office of the Rights Agent, or at the office of its successor as Rights Agent, one
one-thousandths of a fully paid non-assessable share of Series A Junior Participating Preferred
Stock, par value $0.00025 per share (the “Preferred Shares”), of the Company, at a purchase price of
$16.00 per one one-thousandths of a Preferred Share (the “Purchase Price”), upon presentation and
surrender of this Right Certificate with the certification and the Form of Election to Purchase
duly executed. The number of Rights evidenced by this Right Certificate (and the number of one
one-thousandths of a Preferred Share which may be purchased upon exercise hereof) set forth above,
and the Purchase Price set forth above, are the number and Purchase Price as of July 20, 2009,
based on the Preferred Shares as constituted at such date. As provided in the Rights Agreement,
the Purchase Price and the number of one one-thousandths of a Preferred Share which may be
purchased upon the exercise of the Rights evidenced by this Right Certificate are subject to
modification and adjustment upon the happening of certain events.
From and after the occurrence of an event described in Section 11(a)(ii) of the Rights
Agreement, if the Rights evidenced by this Right Certificate are or were at any time on or after
the earlier of (x) the date of such event and (y) the Distribution Date (as such term is defined in
the Rights Agreement) acquired or beneficially owned by an Acquiring Person or an Associate or
Affiliate of an Acquiring Person (as such terms are defined in the Rights Agreement), such
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Rights shall become void, and any holder of such Rights shall thereafter have no right to
exercise such Rights.
This Right 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 Right Certificates. Copies of the Rights Agreement are
on file at the principal executive offices of the Company and the offices of the Rights Agent.
This Right Certificate, with or without other Right Certificates, upon surrender at the
principal office of the Rights Agent, may be exchanged for another Right Certificate or Right
Certificates of like tenor and date evidencing Rights entitling the holder to purchase a like
aggregate number of Preferred Shares as the Rights evidenced by the Right Certificate or Right
Certificates surrendered shall have entitled such holder to purchase. If this Right Certificate
shall be exercised in part, the holder shall be entitled to receive upon surrender hereof another
Right Certificate or Right Certificates for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, at the Company’s option, the Rights
evidenced by this Certificate (i) may be redeemed by the Company at a redemption price of $0.001
per Right or (ii) may be exchanged in whole or in part for shares of the Company’s Common Stock,
par value $0.00025 per share, or Preferred Shares.
No fractional Preferred Shares will be issued upon the exercise of any Right or Rights
evidenced hereby (other than fractions which are integral multiples of one one-thousandths of a
Preferred Share, which may, at the election of the Company, be evidenced by depositary receipts),
but in lieu thereof a cash payment will be made, as provided in the Rights Agreement.
No holder of this Right Certificate shall be entitled to vote or receive dividends or be
deemed for any purpose the holder of the Preferred Shares 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 Right Certificate shall have been exercised as provided
in the Rights Agreement.
This Right Certificate shall not be valid or obligatory for any purpose until it shall have
been countersigned by the Rights Agent.
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WITNESS the facsimile signature of the proper officers of the Company and its corporate seal.
Dated as of ___, ___.
Attest: | BIOCLINICA, INC. | |||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||
Countersigned | ||||||||
Rights Agent | ||||||||
By: |
||||||||
Authorized Signature |
B-3
Form of Reverse Side of Right Certificate
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder desires to transfer the Right Certificate.)
(To be executed by the registered holder if such holder desires to transfer the Right Certificate.)
FOR
VALUE RECEIVED
___________________________________________________________________ hereby sells, assigns and transfers unto ____________________________________________________________________________________________________.
(Please print name and address of transferee)
this Right Certificate, together with all right, title and interest therein, and does hereby
irrevocably constitute and appoint
, Attorney, to transfer the within
Right Certificate on the books of the within-named Company, with full power of substitution.
Date:
Signature
Signature Guaranteed:
Signatures must be medallion guaranteed by an eligible guarantor institution (a bank,
stockbroker, savings and loan association or credit union with membership in an approved signature
guarantee medallion program) pursuant to Rule 17Ad-15 of the Securities Exchange Act of 1934.
The undersigned hereby certifies that the Rights evidenced by this Right Certificate are not
beneficially owned by an Acquiring Person or an Affiliate or Associate thereof (as defined in the
Rights Agreement).
Signature
B-4
Form of Reverse Side of Right Certificate — continued
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to exercise the Right Certificate.)
(To be executed if holder desires to exercise the Right Certificate.)
To BIOCLINICA, INC.:
The undersigned hereby irrevocably elects to exercise Rights represented by
this Right Certificate to purchase the Preferred Shares issuable upon the exercise of such Rights
and requests that certificates for such Preferred Shares be issued in the name of:
Please insert social security
or other identifying number
or other identifying number
(Please print name and address)
If such number of Rights shall not be all the Rights evidenced by this Right Certificate, a new
Right Certificate for the balance remaining of such Rights shall be registered in the name of and
delivered to:
Please insert social security
or other identifying number
or other identifying number
(Please print name and address)
Date:
Signature
Signature Guaranteed:
Signatures must be medallion guaranteed by a participant in a Securities Transfer Association
Inc. recognized signature guarantee medallion program.
B-5
Form of Reverse Side of Right Certificate — continued
The undersigned hereby certifies that the Rights evidenced by this Right Certificate are not
beneficially owned by an Acquiring Person or an Affiliate or Associate thereof (as defined in the
Rights Agreement).
Signature
NOTICE
The signature in the foregoing Forms of Assignment and Election must conform to the name as
written upon the face of this Right Certificate in every particular, without alteration or
enlargement or any change whatsoever.
In the event the certification set forth above in the Form of Assignment or the Form of
Election to Purchase, as the case may be, is not completed, the Company and the Rights Agent will
deem the beneficial owner of the Rights evidenced by this Right Certificate to be an Acquiring
Person or an Affiliate or Associate thereof (as defined in the Rights Agreement) and such
Assignment or Election to Purchase will not be honored.
B-6
EXHIBIT C
SUMMARY OF RIGHTS TO PURCHASE
PREFERRED
SHARES OF BIOCLINICA, INC.
On July 20, 2009, the Board of Directors of BioClinica, Inc. (the “Company”) declared a
dividend of one preferred share purchase right (a “Right”) for each outstanding share of Common
Stock, par value $0.00025 per share (the “Common Shares”) outstanding on July 20, 2009 (the “Record
Date”) to the stockholders of record on that date. Each Right entitles the registered holder to
purchase from the Company one one-thousandths of a share of Series A Junior Participating Preferred
Stock, par value $0.00025 per share (the “Preferred Shares”), of the Company, at a price of $16.00
per one one-thousandths of a Preferred Share (the “Purchase Price”), subject to adjustment. The
description and terms of the Rights are set forth in a Rights Agreement (the “Rights Agreement”)
between the Company and Computershare Trust Company, N.A., as Rights Agent (the “Rights Agent”).
Until the earlier to occur of (i) ten (10) days following a public announcement that a person
or group of affiliated or associated persons, with certain exceptions (an “Acquiring Person”) has acquired beneficial
ownership of 15%, or, in the case of a Grandfathered Stockholder, such percentage as is specified
in the Rights Agreement, or more of the outstanding Common Shares or (ii) ten (10) business days
(or such later date as may be determined by action of the Board of Directors prior to such time as
any Person becomes an Acquiring Person) following the commencement of, or announcement of an
intention to make, a tender offer or exchange offer the consummation of which would result in the
beneficial ownership by a person or group of 15%, or, in the case of a Grandfathered Stockholder,
such percentage as is specified in the Rights Agreement, or more of the outstanding Common Shares
(the earlier of such dates being called the “Distribution Date”), the Rights will be evidenced,
with respect to any of the Common Share certificates outstanding as of the Record Date, by such
Common Share certificate with a copy of this Summary of Rights attached thereto.
The
Rights Agreement provides that, until the Distribution Date (or
earlier redemption or expiration of the Rights), the Rights will be
transferred with and only with the Common Shares. Until the Distribution Date (or earlier
redemption or expiration of the Rights), new Common Share certificates issued after the Record Date
or upon transfer or new issuance of Common Shares will contain a notation incorporating the Rights
Agreement by reference. Until the Distribution Date (or earlier redemption or expiration of the
Rights), the surrender for transfer of any certificates for Common Shares outstanding as of the
Record Date, even without such notation or a copy of this Summary of Rights being attached thereto,
will also constitute the transfer of the Rights associated with the Common Shares represented by
such certificate. As soon as practicable following the Distribution Date, separate certificates
evidencing the Rights (“Right Certificates”) will be mailed to holders of record of the Common
Shares as of the Close of Business on the Distribution Date and such separate Right Certificates
alone will evidence the Rights.
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The Rights are not exercisable until the Distribution Date. The Rights will expire on July
20, 2019 (the “Final Expiration Date”), unless the Final Expiration Date is extended or unless the
Rights are earlier redeemed or exchanged by the Company, in each case, as described below.
The Purchase Price payable, and the number of Preferred Shares 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 Shares, (ii) upon the grant to holders of the Preferred Shares of certain rights
or warrants to subscribe for or purchase Preferred Shares at a price, or securities convertible
into Preferred Shares with a conversion price, less than the then current market price of the
Preferred Shares or (iii) upon the distribution to holders of the Preferred Shares of evidences of
indebtedness or assets (excluding regular periodic cash dividends paid out of earnings or retained
earnings or dividends payable in Preferred Shares) or of subscription rights or warrants (other
than those referred to above).
The number of outstanding Rights and the number of one one-thousandths of a Preferred Share
issuable upon exercise of each Right are also subject to adjustment in the event of a stock split
of the Common Shares or a stock dividend on the Common Shares payable in Common Shares or
subdivisions, consolidations or combinations of the Common Shares occurring, in any such case,
prior to the Distribution Date.
Preferred Shares purchasable upon exercise of the Rights will not be redeemable. Each
Preferred Share will be entitled to a quarterly dividend payment of 1000 times the dividend
declared per Common Share. In the event of liquidation, the holders of the Preferred Shares will
be entitled to an aggregate payment of 1000 times the aggregate payment made per Common Share.
Each Preferred Share will have 1000 votes, voting together with the Common Shares. In the event of
any merger, consolidation or other transaction in which Common Shares are exchanged, each Preferred
Share will be entitled to receive 1000 times the amount received per Common Share. These rights
are protected by customary antidilution provisions.
Because of the nature of the Preferred Shares’ dividend, liquidation and voting rights, the
value of the one one-thousandths interest in a Preferred Share purchasable upon exercise of each
Right should approximate the value of one Common Share.
From and after the time any Person becomes an Acquiring Person, if the Rights evidenced by
this Right Certificate are or were at any time on or after the earlier of (x) the date of such
event and (y) the Distribution Date (as such term is defined in the Rights Agreement) acquired or
beneficially owned by an Acquiring Person or an Associate or Affiliate of an Acquiring Person (as
such terms are defined in the Rights Agreement), such Rights shall become void, and any holder of
such Rights shall thereafter have no right to exercise such Rights.
In the event that, at any time after a Person becomes an Acquiring Person, the Company is
acquired in a merger or other business combination transaction or 50% or more of its consolidated
assets or earning power are sold, proper provision will be made so that each holder of a Right will
thereafter have the right to receive, upon the exercise thereof at the then current exercise price
of the Right, that number of shares of common stock of the acquiring company
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which at the time of such transaction will have a market value of two times the exercise price
of the Right. In the event that any person becomes an Acquiring Person, proper provision shall be
made so that each holder of a Right, other than Rights beneficially owned by the Acquiring Person
and its Affiliates and Associates (which will thereafter be void), will thereafter have the right
to receive upon exercise that number of Common Shares having a market value of two times the
exercise price of the Right. If the Company does not have sufficient Common Shares to satisfy such
obligation to issue Common Shares, or if the Board of Directors so elects, the Company shall
deliver upon payment of the exercise price of a Right an amount of cash or securities equivalent in
value to the Common Shares issuable upon exercise of a Right; provided that, if the Company fails
to meet such obligation within thirty (30) days following the date a Person becomes an Acquiring
Person, the Company must deliver, upon exercise of a Right but without requiring payment of the
exercise price then in effect, Common Shares (to the extent available) and cash equal in value to
the difference between the value of the Common Shares otherwise issuable upon the exercise of a
Right and the exercise price then in effect. The Board of Directors may extend the thirty (30) day
period described above for up to an additional sixty (60) days to permit the taking of action that
may be necessary to authorize sufficient additional Common Shares to permit the issuance of Common
Shares upon the exercise in full of the Rights.
At any time after any Person becomes an Acquiring Person and prior to the acquisition by any
person or group of a majority of the outstanding Common Shares, the Board of Directors of the
Company may exchange the Rights (other than Rights owned by such person or group which have become
void), in whole or in part, at an exchange ratio of one Common Share per Right (subject to
adjustment).
With certain exceptions, no adjustment in the Purchase Price will be required until cumulative
adjustments require an adjustment of at least 1% in such Purchase Price. No fractional Preferred
Shares will be issued (other than fractions which are integral multiples of one one-thousandths of
a Preferred Share, which may, at the election of the Company, be evidenced by depositary receipts)
and in lieu thereof, an adjustment in cash will be made based on the market price of the Preferred
Shares on the last trading day prior to the date of exercise.
At any time prior to the time any Person becomes an Acquiring Person, the Board of Directors
of the Company may redeem the Rights in whole, but not in part, at a price of $0.001 per Right (the
“Redemption Price”). The redemption of the Rights may be made effective at such time, on such
basis and with such conditions as the Board of Directors in its sole discretion may establish.
Immediately upon any redemption of the Rights, the right to exercise the Rights will terminate and
the only right of the holders of Rights will be to receive the Redemption Price.
The terms of the Rights may be amended by the Board of Directors of the Company without the
consent of the holders of the Rights, except that from and after such time as any person becomes an
Acquiring Person no such amendment may adversely affect the interests of the holders of the Rights
(other than the Acquiring Person and its Affiliates and Associates).
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.
C-3
A copy of the Agreement has been filed with the Securities and Exchange Commission as an
Exhibit to a Current Report on Form 8-K dated July 20, 2009. A copy of the Agreement is available
free of charge from the Company. This summary description of the Rights does not purport to be
complete and is qualified in its entirety by reference to the Agreement, which is hereby
incorporated herein by reference.
C-4