Exhibit 4
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AMENDED AND RESTATED RIGHTS AGREEMENT
XXXXXXX-XXXXXX CORPORATION
and
Mellon Investor Services LLC,
as Rights Agent
Dated as of November 20, 2001
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TABLE OF CONTENTS
Page
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Section 1. Certain Definitions.........................................................2
Section 2. Appointment of Rights Agent.................................................9
Section 3. Issue of Right Certificates.................................................9
Section 4. Form of Right Certificates.................................................12
Section 5. Countersignature and Registration..........................................12
Section 6. Transfer, Split Up, Combination and Exchange of Right Certificates;
Mutilated, Destroyed, Lost or Stolen Right Certificates....................13
Section 7. Exercise of Rights, Purchase Price; Expiration Date of Rights..............14
Section 8. Cancellation and Destruction of Right Certificates.........................15
Section 9. Availability of Shares of Preferred Stock..................................16
Section 10. Preferred Stock Record Date................................................17
Section 11. Adjustment of Purchase Price, Number of Shares and Number of Rights........17
Section 12. Certificate of Adjusted Purchase Price or Number of Shares.................28
Section 13. Consolidation, Merger or Sale or Transfer of Assets or Earnings Power......28
Section 14. Fractional Rights and Fractional Shares....................................32
Section 15. Rights of Action...........................................................33
Section 16. Agreement of Right Holders.................................................34
Section 17. Right Certificate Holder Not Deemed a Stockholder..........................34
Section 18. Concerning the Rights Agent................................................35
Section 19. Merger or Consolidation or Change of Name of Rights Agent..................35
Section 20. Duties of Rights Agent.....................................................36
Section 21. Change of Rights Agent.....................................................38
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Section 22. Issuance of New Right Certificates.........................................39
Section 23. Redemption.................................................................39
Section 24. Exchange...................................................................40
Section 25. Notice of Certain Events...................................................42
Section 26. Notices....................................................................43
Section 27. Supplements and Amendments.................................................43
Section 28. Successors.................................................................44
Section 29. Benefits of this Agreement.................................................44
Section 30. Severability...............................................................44
Section 31. Governing Law..............................................................44
Section 32. Counterparts...............................................................44
Section 33. Descriptive Headings.......................................................45
Section 34. Administration.............................................................45
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RIGHTS AGREEMENT
Amended and Restated Agreement (the "Agreement"), dated as of
November 6, 2000, as amended and restated as of November 20, 2001, between
Xxxxxxx-Xxxxxx Corporation, a Delaware corporation (the "Company"), and Mellon
Investor Services LLC, a New Jersey limited liability company (f/k/a ChaseMellon
Shareholder Services, L.L.C.), as Rights Agent (the "Rights Agent").
WHEREAS, on November 21, 2000 (the "Record Date"), the Board of
Directors of the Company paid a dividend of one preferred share purchase right
(a "Class A Right") for each share of Common Stock (as hereinafter defined) of
the Company outstanding as of the close of business on Record Date, each Class A
Right representing the right to purchase one one-thousandth (subject to
adjustment) of a share of Series A Preferred Stock, par value $1 per share, of
the Company, and further authorized and directed the issuance of one Class A
Right (subject to adjustment) with respect to each share of Common Stock that
shall become outstanding between the Record Date and the earliest of the
Distribution Date, the Redemption Date and the Final Expiration Date (as such
terms are hereinafter defined); provided, however, that Class A Rights may be
issued with respect to shares of Common Stock that shall become outstanding
after the Distribution Date and prior to the Redemption Date and the Final
Expiration Date in accordance with Section 22.
WHEREAS, the Company has entered into a Second Amended and Restated
Agreement and Plan of Merger (as amended, the "Merger Agreement"), dated as of
August 17, 2001, by and among the Company, Unitrin, Inc., a Delaware corporation
("Unitrin"), and CW Disposition Company, a Delaware corporation and a wholly
owned subsidiary of Unitrin ("Merger Sub"), pursuant to which Merger Sub will
merge with and into the Company (the "Merger") upon the filing of the
certificate of merger with the Secretary of State of the State of Delaware (the
"Effective Time") upon the terms and subject to the conditions set forth in the
Merger Agreement, and as of the Effective Time all the issued and outstanding
shares of common stock, par value $.01 per share, of Merger Sub shall be
converted into shares of a new Class B common stock, par value $1 per share, of
the Company (the "Class B Common Stock").
WHEREAS, in connection with the issuance of the Class B Common Stock,
the Board of Directors of the Company has authorized the issuance at the
Effective Time of one preferred share purchase right (a "Class B Right") with
each share of Class B Common Stock of the Company issued in the Merger, each
Class B Right representing the right to purchase one one-thousandth (subject to
adjustment) of a share of Series B Preferred Stock (as hereinafter defined),
upon the terms and subject to the conditions herein set forth, and has further
authorized and directed the issuance of one Class B Right (subject to adjustment
as provided herein) with respect to each share of Class B Common Stock that
shall become outstanding between the Effective Time and the earliest of the
Distribution Date, the Redemption Date and the Final Expiration Date; provided,
however, that Class B Rights may be issued with respect to shares of Class B
Common Stock that shall become outstanding after the Distribution Date and prior
to the Redemption Date and the Final Expiration Date in accordance with Section
22.
NOW THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
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Section 1. Certain Definitions. For purposes of this Agreement, the
following terms have the meaning indicated:
(a) "Acquiring Person" shall mean any Person (as such term is
hereinafter defined) who or which shall be the Beneficial Owner (as such
term is hereinafter defined) of (a) shares of Company Common Stock (as such
term is hereinafter defined), representing, in the aggregate, 15% or more
of the total number of votes entitled to be cast generally (other than in
an election of directors) by the holders of the Company Common Stock then
outstanding (or, if such Person is an Institutional Investor (as such term
is hereinafter defined), shares of Company Common Stock, representing, in
the aggregate, 18.5% or more of the total number of votes entitled to be
cast generally (other than in an election of directors) by the holders of
the Company Common Stock then outstanding) or (b) 12.5% or more of the
shares of Class B Common Stock (as such term is hereinafter defined) then
outstanding (or, if such Person is an Institutional Investor, 17.5% or more
of the shares of Class B Common Stock then outstanding), but in either case
shall not include an Exempt Person (as such term is hereinafter defined);
provided, however, that (i) if the Board of Directors of the Company
determines in good faith that a Person who would otherwise be an "Acquiring
Person" has become such inadvertently (including, without limitation,
because (A) such Person was unaware that it beneficially owned a percentage
of Company Common Stock that would otherwise cause such Person to be an
"Acquiring Person" or (B) such Person was aware of the extent of its
Beneficial Ownership of Company Common Stock but had no actual knowledge of
the consequences of such Beneficial Ownership under this Rights Agreement)
and without any intention of changing or influencing control of the
Company, and such Person, as promptly as practicable divested or divests
himself or itself of Beneficial Ownership of a sufficient number of shares
of Company Common Stock so that such Person would no longer be an Acquiring
Person, then such Person shall not be deemed to be or to have become an
"Acquiring Person" for any purposes of this Agreement, (ii) during the
period of time between the Effective Time and such time as Unitrin causes
the distribution of the Class B common stock received in the Merger by
Unitrin to its stockholders, Unitrin and its Associates and Affiliates
shall not be deemed to be or to become an Acquiring Person as long as such
entities in the aggregate beneficially own a number of shares of Company
Common Stock not in excess of the sum of (A) 4,382,400 shares of Class B
Common Stock and (B) a number of shares of Company Common Stock
representing, in the aggregate 1% of the shares of Company Common Stock
then outstanding and (iii) if, as of the date hereof or pursuant to the
distribution by Unitrin to its stockholders of the Class B common stock
received in the Merger by Unitrin, any Person is or becomes the Beneficial
Owner of (A) shares of Company Common Stock representing, in the aggregate,
15% or more of the total number of votes entitled to be cast generally
(other than in an election of directors) by the holders of the Company
Common Stock then outstanding (or, if such Person is an Institutional
Investor, shares of Company Common Stock representing, in the aggregate,
18.5% or more of the total number of votes entitled to be cast generally
(other
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than in an election of directors) by the holders of the Company Common
Stock then outstanding) or (B) 12.5% or more of the shares of Class B
Common Stock then outstanding (or, if such Person is an Institutional
Investor, 17.5% or more of the shares of Class B Common Stock then
outstanding), such Person shall not be deemed to be or to become an
"Acquiring Person" unless and until such time as such Person shall, after
the first public announcement of the adoption of this Agreement or the
consummation of said distribution, as applicable, become the Beneficial
Owner of additional shares of (1) in the case of clause (A), Company Common
Stock representing 1% or more of the total number of votes entitled to be
cast generally (other than in an election of directors) by the holders of
the Company Common Stock then outstanding or (2) in the case of clause (B),
Class B Common Stock representing 1% or more of the then outstanding shares
of Class B Common Stock (other than pursuant to a dividend or distribution
paid or made by the Company on the outstanding Company Common Stock or
pursuant to a split or subdivision of the outstanding Company Common
Stock), unless, upon becoming the Beneficial Owner of such additional
shares of Company Common Stock, such Person is not then the Beneficial
Owner of (x) shares of Company Common Stock representing, in the aggregate,
15% or more of the total number of votes entitled to be cast generally
(other than in an election of directors) by the holders of the Company
Common Stock then outstanding (or, if such Person is an Institutional
Investor, shares of Company Common Stock representing, in the aggregate,
18.5% or more of the total number of votes entitled to be cast generally
(other than in an election of directors) by the holders of the Company
Common Stock then outstanding) or (y) 12.5% or more of the shares of Class
B Common Stock then outstanding (or, if such Person is an Institutional
Investor, 17.5% or more of the shares of Class B Common Stock then
outstanding). Notwithstanding the foregoing, no Person shall become an
"Acquiring Person" as the result of an acquisition of shares of Company
Common Stock by the Company which, by reducing the number of shares
outstanding, increases the proportionate number of shares beneficially
owned by such Person to (I) shares of Company Common Stock representing, in
the aggregate, 15% or more of the total number of votes entitled to be cast
generally (other than in an election of directors) by the holders of the
Company Common Stock then outstanding (or, if such Person is an
Institutional Investor, shares of Company Common Stock representing, in the
aggregate, 18.5% or more of the total number of votes entitled to be cast
generally (other than in an election of directors) by the holders of the
Company Common Stock then outstanding) or (II) 12.5% or more of the shares
of Class B Common Stock then outstanding (or, if such Person is an
Institutional Investor, 17.5% or more of the shares of Class B Common Stock
then outstanding); provided, however, that if a Person shall become the
Beneficial Owner of (aa) shares of Company Common Stock representing, in
the aggregate, 15% or more of the total number of votes entitled to be cast
generally (other than in an election of directors) by the holders of the
Company Common Stock then outstanding (or, if such Person is an
Institutional Investor, shares of Company Common Stock representing, in the
aggregate, 18.5% or more of the total number of votes entitled to be cast
generally (other than in an election of directors) by the
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holders of the Company Common Stock then outstanding) or (bb) 12.5% or more
of the shares of Class B Common Stock then outstanding (or, if such Person
is an Institutional Investor, 17.5% or more of the shares of Class B Common
Stock then outstanding) by reason of such share acquisitions by the Company
and thereafter become the Beneficial Owner of additional shares of (x) in
the case of clause (aa) above, Company Common Stock representing 1% or more
of the total number of votes entitled to be cast generally (other than in
an election of directors) by the holders of the Company Common Stock then
outstanding, or (y) in the case of clause (bb) above, Class B Common Stock
representing 1% or more of the then outstanding shares of Class B Common
Stock, (in either the case of clause (x) or clause (y), other than pursuant
to a dividend or distribution paid or made by the Company on the
outstanding Company Common Stock or pursuant to a split or subdivision of
the outstanding Company Common Stock), then such Person shall be deemed to
be an "Acquiring Person" unless upon the consummation of the acquisition of
such additional shares of Company Common Stock or Class B Common Stock, as
the case may be, such Person does not own (i) shares of Company Common
Stock representing, in the aggregate, 15% or more of the total number of
votes entitled to be cast generally (other than in an election of
directors) by the holders of the Company Common Stock then outstanding (or,
if such Person is an Institutional Investor, shares of Company Common Stock
representing, in the aggregate, 18.5% or more of the total number of votes
entitled to be cast generally (other than in an election of directors) by
the holders of the Company Common Stock then outstanding) or (ii) 12.5% or
more of the shares of Class B Common Stock then outstanding (or, if such
Person is an Institutional Investor, 17.5% or more of the shares of Class B
Common Stock then outstanding). Notwithstanding any of the foregoing, in
the event that an Institutional Investor no longer satisfies the
requirements set forth in the definition of "Institutional Investor" set
forth below, then such Person shall promptly as practicable, after the
Board of Directors determines in good faith that such Person no longer
meets the requirements set forth in the definition of "Institutional
Investor", divest itself of a sufficient number of shares of (a) Company
Common Stock so that such Person no longer beneficially owns more than 15%
of the total number of votes entitled to be cast generally (other than in
an election of directors) by the holders of the Company Common Stock then
outstanding or (b) Class B Common Stock so that such Person no longer
beneficially owns more than 12.5% of the shares of Class B Common Stock
then outstanding. If such Person does not divest of Company Common Stock,
in the case of clause (a), or of Class B Common Stock, in the case of
clause (b), in accordance with the requirements set forth in the prior
sentence, then such Person shall be deemed to be an "Acquiring Person"
for purposes of this Agreement. The phrase "then outstanding," when used
with reference to a Person's Beneficial Ownership of securities of the
Company, shall mean the number of such securities then issued and
outstanding together with the number of such securities not then actually
issued and outstanding which such Person would be deemed to own
beneficially hereunder.
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(b) "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
as in effect on the date of this Agreement.
(c) A Person shall be deemed the "Beneficial Owner" of, shall be
deemed to have "Beneficial Ownership" 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 General Rules and Regulations
under the Exchange Act as in effect on the date of this Agreement;
(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 the Beneficial
Owner of, or to beneficially own, (x) 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, (y) securities which such Person has a right to acquire on
the exercise of Rights at any time prior to the time a Person becomes
an Acquiring Person or (z) securities issuable upon exercise of Rights
from and after the time a Person becomes an Acquiring Person if such
Rights were acquired by such Person or any of such Person's Affiliates
or Associates prior to the Distribution Date or pursuant to Section
3(a) or Section 22 hereof ("Original Rights") or pursuant to Section
11(i) or Section 11(n) with respect to an adjustment to Original
Rights; 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
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(iii) which are beneficially owned, directly or indirectly, by
any other Person and with respect to 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) for the purpose of acquiring, holding,
voting (except to the extent contemplated by the proviso to Section
1(c)(ii)(B)) or disposing of such securities.
(d) "Business Day" shall mean any day other than a Saturday, a Sunday,
or a day on which banking institutions in the State of New York, or the
State in which the office of the Rights Agent is located, are authorized or
obligated by law or executive order to close.
(e) "Class A Right" shall have the meaning set forth in the Recitals
hereto.
(f) "Class A Right Certificate" shall have the meaning set forth in
Section 3(a) hereof.
(g) "Class B Common Stock" shall have the meaning set forth in the
Recitals hereto.
(h) "Class B Right" shall have the meaning set forth in the Recitals
hereto.
(i) "Class B Right Certificate" shall have the meaning set forth in
Section 3(a) hereof.
(j) "close of business" on any given date shall mean 5:00 P.M., New
York City time, on such date; provided, however, that if such date is not a
Business Day it shall mean 5:00 P.M., New York City time, on the next
succeeding Business Day.
(k) "Common Stock" when used with reference to the Company shall mean
the Common Stock, par value $1 per share, of the Company. "Common Stock"
when used with reference to any Person other than the Company shall mean
the capital stock (or, in the case of an unincorporated entity, the
equivalent 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.
(l) "Company Common Stock" shall mean collectively or severally, as
the context shall require, the Common Stock and/or the Class B Common
Stock.
(m) "Distribution Date" shall have the meaning set forth in Section 3
hereof.
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(n) "Effective Time" shall have the meaning set forth in the Recitals
hereto.
(o) "Exempt Person" shall mean the Company, any Subsidiary (as such
term is hereinafter defined) of the Company, any employee benefit plan of
the Company or of any Subsidiary of the Company, or any entity or trustee
holding Company Common Stock for or pursuant to the terms of any such plan
or for the purpose of funding any such plan or funding other employee
benefits for employees of the Company or of any Subsidiary of the Company.
(p) "Expiration Date" shall have the meaning set forth in Section 7
thereof.
(q) "Final Expiration Date" shall have the meaning set forth in
Section 7 hereof.
(r) "Institutional Investor" shall mean a Person who (I) is the
Beneficial Owner of Company Common Stock and either (a) has a Schedule 13G
on file with the Securities and Exchange Commission pursuant to the
requirements of Rule 13d-1 under the Exchange Act with respect to such
holdings, or (b) has a Schedule 13D on file with the Securities and
Exchange Commission and either has stated in its filing that it has no plan
or proposal that relates to or would result in any of the actions or events
set forth in Item 4 of Schedule 13D or otherwise has no intent to seek
control of the Company or has certified to the Company that it has no such
plan, proposal or intent (other than by voting the shares of Company Common
Stock over which such Person has voting power) and (II) (w) is principally
engaged in the business of managing investment funds for unaffiliated
securities investors and, as part of such Person's duties as agent for
fully managed accounts, holds or exercises voting or dispositive power over
shares of Company Common Stock, (x) acquires Beneficial Ownership of shares
of Company Common Stock pursuant to trading activities undertaken in the
ordinary course of such Person's business and not with the purpose nor the
effect, either alone or in concert with any Person, of exercising the power
to direct or cause the direction of the management and policies of the
Company or of otherwise changing or influencing the control of the Company,
nor in connection with or as a participant in any transaction having such
purpose or effect, including any transaction subject to Rule 13d-3(b) of
the Exchange Act, (y) in the case of clause (a), only, is a Person included
in Rule 13d-1(b)(ii) of the Exchange Act, such Person is not obligated to,
and does not, file a Schedule 13D with respect to the securities of the
Company and (z) in the case of clause (b), only, does not amend either its
Schedule 13D on file or its certification to the Company in a manner
inconsistent with its representation that it has no plan or proposal that
relates to or would result in any of the actions or events set forth in
Item 4 of Schedule 13D or otherwise has no intent to seek control of the
Company (other than by voting the shares of Company Common Stock over which
such Person has voting power).
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(s) "Merger" shall have the meaning set forth in the Recitals hereto.
(t) "Merger Agreement" shall have the meaning set forth in the
Recitals hereto.
(u) "Merger Sub" shall have the meaning set forth in the Recitals
hereto.
(v) "New York Stock Exchange" shall mean the New York Stock Exchange,
Inc.
(w) "Ownership Statement" shall have the meaning set forth in Section
3(a) hereof.
(x) "Person" shall mean any individual, firm, corporation,
partnership, limited partnership, business trust, limited liability
company, unincorporated association or other entity, and shall include any
successor (by merger or otherwise) of such entity.
(y) "Preferred Stock" shall mean collectively or severally, as the
context shall require, (i) the Series A Participating Preferred Stock, par
value $.01 per share, of the Company (the "Series A Preferred Stock")
and/or (ii) the Series B Participating Preferred Stock, par value $.01 per
share, of the Company (the "Series B Preferred Stock"), in each case having
the rights and preferences upon adoption as and set forth in the Form of
Certificate of Designations attached to this Agreement as Exhibit A-1 and
Exhibit A-2, respectively.
(z) "Record Date" shall have the meaning set forth in the Recitals
hereto.
(aa) "Redemption Date" shall have the meaning set forth in Section 7
hereof.
(bb) "Rights" shall mean collectively or severally, as the context
shall require, the Class A Rights and/or the Class B Rights.
(cc) "Right Certificate" shall mean collectively or severally, as the
context shall require, the Class A Right Certificate and/or the Class B
Right Certificate.
(dd) "Securities Act" shall mean the Securities Act of 1933, as
amended.
(ee) "Stock Acquisition Date" shall mean the first date of public
announcement (which for purposes of this definition, shall include, without
limitation, a report filed pursuant to Section 13(d) of the Exchange Act)
by the Company or an Acquiring Person that an Acquiring Person has become
such or such earlier date as a majority of the Board of Directors shall
become aware of the existence of an Acquiring Person.
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(ff) "Subsidiary" of any Person shall mean any corporation or other
entity of which securities or other ownership interests having ordinary
voting power sufficient to elect a majority of the board of directors or
other persons performing similar functions are beneficially owned, directly
or indirectly, by such Person, and any corporation or other entity that is
otherwise controlled by such Person.
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. The Rights Agent shall have no duty to supervise, and in
no event shall be liable for, the acts or omissions of any such co-Rights Agent.
Section 3. Issue of Right Certificates.
(a) Until the earlier of (i) the tenth day after the Stock 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 an Exempt Person) of, or of the first public
announcement of the intention of such Person (other than an Exempt Person)
to commence, a tender or exchange offer the consummation of which would
result in any Person becoming the Beneficial Owner of (1) shares of Company
Common Stock representing, in the aggregate, 15% or more of the total
number of votes entitled to be cast generally (other than in an election of
directors) by the holders of Company Common Stock then outstanding (or, if
such Person is an Institutional Investor, shares of Company Common Stock
representing, in the aggregate, 18.5% or more of the total number of votes
entitled to be cast generally (other than in an election of directors) by
the holders of Company Common Stock then outstanding) or (2) 12.5% or more
of the shares of Class B Common Stock then outstanding (or, if such Person
is an Institutional Investor, 17.5% or more of the shares of Class B Common
Stock then outstanding) (the earlier of such dates 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 Company
Common Stock registered in the names of the holders thereof, or by a
current ownership statement issued with respect to uncertificated shares of
Company Common Stock in lieu of such a certificate (an "Ownership
Statement") and not by separate Right Certificates and (y) the Rights will
be transferable only in connection with the transfer of Company Common
Stock. As soon as practicable after the Distribution Date, the Company will
prepare and execute, the Rights Agent will countersign and the Company will
send or cause to be sent (and the Rights Agent will, if requested, send) by
first-class, insured, postage-prepaid mail, (A) to each record holder of
Common Stock 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 records of the Company,
a Class A Right Certificate, in substantially the form of Exhibit B-1
hereto (a "Class A Right
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Certificate"), evidencing one Class A Right (subject to adjustment as
provided herein) for each share of Common Stock so held and (B) to each
record holder of Class B Common Stock 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 records of the Company, a Class B Right Certificate, in substantially
the form of Exhibit B-2 hereto (a "Class B Right Certificate"), evidencing
one Class B Right (subject to adjustment as provided herein) for each share
of Class B Common Stock so held. As of the Distribution Date, the Rights
will be evidenced solely by such Right Certificates.
(b) (i) In connection with the original adoption of this Agreement,
the Company sent a copy of a Summary of Rights to Purchase Shares of
Preferred Stock, (the "Summary of Rights"), by first-class, postage-prepaid
mail, to each record holder of Common Stock as of the close of business on
the Record Date, at the address of such holder shown on the records of the
Company.
(ii) With respect to shares of Common Stock represented by
certificates for Common Stock or Ownership Statements outstanding as
of the Record Date, until the earliest of the Distribution Date, the
Redemption Date or the Final Expiration Date, the Class A Rights
associated with such shares of Common Stock will be evidenced by such
certificates or Ownership Statements together with the Summary of
Rights. Until the earlier of the Distribution Date and the Expiration
Date (as defined below), the surrender for transfer of any certificate
for shares of Common Stock outstanding on the Record Date, or the
transfer of any Common Stock represented by an Ownership Statement
outstanding on the Record Date, in either case with or without a copy
of the Summary of Rights, shall also, except as otherwise provided
herein, constitute the transfer of the Class A Rights associated with
the Common Stock represented thereby.
(c) (i) Certificates or Ownership Statements issued for Common Stock
(including, without limitation, upon transfer of outstanding Common Stock,
disposition of Common Stock out of treasury stock or issuance or reissuance
of Common Stock out of authorized but unissued shares) after the Record
Date but prior to the earlier of the Distribution Date and the Expiration
Date (as defined below), shall have impressed on, printed on, written on or
otherwise affixed to them the following legend:
This [certificate] [statement] also evidences and entitles
the holder hereof to certain rights as set forth in a Rights
Agreement between Xxxxxxx-Xxxxxx Corporation and ChaseMellon
Shareholder Services, L.L.C., as Rights Agent, dated as of
November 6, 2000, as the same may be amended from time to
time (the "Rights Agreement"), the terms of which are hereby
incorporated herein by reference
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and a copy of which is on file at the principal executive
offices of Xxxxxxx-Xxxxxx Corporation. 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] [statement].
Xxxxxxx-Xxxxxx Corporation will mail to the holder of this
[certificate] [statement] a copy of the Rights Agreement
without charge after receipt of a written request therefor.
Under certain circumstances, as set forth in the Rights
Agreement, Rights owned by or transferred to any Person who
becomes an Acquiring Person (as defined in the Rights
Agreement) and certain transferees thereof will become null
and void and will no longer be transferable.
With respect to such certificates or Ownership Statements containing the
foregoing legend, until the Distribution Date, the Class A Rights associated
with the Common Stock represented by such certificates or Ownership Statements
shall be evidenced by such certificates or Ownership Statements alone, and the
surrender for transfer of any such certificate or the transfer of any shares of
Common Stock represented by such Ownership Statements, except as otherwise
provided herein, shall also constitute the transfer of the Class A Rights
associated with the Common Stock represented thereby.
(ii) Certificates or Ownership Statements issued for Class B
Common Stock (including, without limitation, upon transfer of
outstanding Class B Common Stock, disposition of Class B Common Stock
out of treasury stock or issuance or reissuance of Class B Common
Stock out of authorized but unissued shares) at or after the Effective
Time but prior to the earlier of the Distribution Date and the
Expiration Date (as defined below), shall have impressed on, printed
on, written on or otherwise affixed to them the following legend:
This [certificate] [statement] also evidences and entitles
the holder hereof to certain rights as set forth in an
Amended and Restated Rights Agreement between Xxxxxxx-Xxxxxx
Corporation and Mellon Investor Services LLC (f/k/a
ChaseMellon Shareholder Services, L.L.C.), as Rights Agent,
dated as of November 6, 2000, as amended and restated as of
November 20, 2001, and as further amended from time to time (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 Xxxxxxx-Xxxxxx
Corporation. 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] [statement]. Xxxxxxx-Xxxxxx Corporation
will mail to the holder of this [certificate]
12
[statement] a copy of the Rights Agreement without charge
after receipt of a written request therefor. Under certain
circumstances, as set forth in the Rights Agreement, Rights
owned by or transferred to any Person who becomes an Acquiring
Person (as defined in the Rights Agreement) and certain
transferees thereof will become null and void and will no
longer be transferable.
With respect to such certificates or Ownership Statements containing the
foregoing legend, until the Distribution Date, the Class B Rights associated
with the Class B Common Stock represented by such certificates or Ownership
Statements shall be evidenced by such certificates or Ownership Statements
alone, and the surrender for transfer of any such certificate or the transfer of
any shares of Class B Common Stock represented by such Ownership Statements,
except as otherwise provided herein, shall also constitute the transfer of the
Class B Rights associated with the Class B Common Stock represented thereby.
(iii) In the event that the Company purchases or otherwise
acquires any Company Common Stock after the Record Date but prior to
the Distribution Date, any Rights associated with such Company Common
Stock shall be deemed cancelled and retired so that the Company shall
not be entitled to exercise any Rights associated with the Company
Common Stock which are no longer outstanding.
Notwithstanding this paragraph (c), the omission of a legend shall not affect
the enforceability of any part of this Agreement or the rights of any holder of
the Rights.
Section 4. Form of Right Certificates. The Class A Right Certificates
and the Class B Rights Certificates (and the forms of election to purchase
shares and of assignment to be printed on the reverse thereof) shall be
substantially in the form set forth in Exhibit B-1 and Exhibit B-2 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 the New York Stock Exchange or of any
other stock exchange or automated quotation system on which the Rights may from
time to time be listed, or to conform to usage. Subject to the provisions of
Sections 11, 13 and 22 hereof, the Right Certificates shall entitle the holders
thereof to purchase such number of one one-thousandths of a share of Preferred
Stock as shall be set forth therein at the price per one one-thousandth of a
share of Preferred Stock set forth therein (the "Purchase Price"), but the
number of such one one-thousandths of a share of Preferred Stock and the
Purchase Price shall be subject to adjustment as provided herein.
Section 5. Countersignature and Registration.
(a) The Right Certificates shall be executed on behalf of the Company
by the Chairman of the Board of Directors, the President, any of the Vice
Presidents,
13
the Treasurer or the Controller of the Company, either manually or by
facsimile signature, shall have affixed thereto the Company's seal or a
facsimile thereof, and shall be attested by the Secretary or an Assistant
Secretary of the Company, either manually or by facsimile signature. The
Right Certificates shall be countersigned by the Rights Agent, either
manually or by facsimile signature, and shall not be valid for any purpose
unless countersigned. In case any officer of the Company who shall have
signed any of the Right Certificates, or shall have attested the Company's
seal thereon, 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, or who
attested the Company's seal thereon, had not ceased to be such officer of
the Company; and any Right Certificate may be signed on behalf of the
Company, and the Company's seal may be attested, 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 Agreement any such Person was not such an officer.
(b) Following the Distribution Date, and the receipt by the Rights
Agent of all required information, the Rights Agent will keep or cause to
be kept, at an office or agency designated for such purpose, books for
registration and 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.
(a) Subject to the provisions of Sections 7(e), 11(a)(ii) and 14
hereof, at any time after the close of business on the Distribution Date,
and prior to the close of business on the earlier of the Redemption Date or
the Final Expiration Date, any Right Certificate or Right Certificates 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 share of Preferred Stock
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 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 office or agency of the Rights Agent
designated for such purpose. 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 to cover any tax or governmental charge that
may be imposed in connection with any transfer,
14
split up, combination or exchange of Right Certificates. The Rights Agent
shall have no duty or obligation under this Section 6 unless and until it
is satisfied that all such taxes and/or charges have been paid in full.
(b) Subject to the provisions of Section 11(a)(ii) hereof, at any time
after the Distribution Date and prior to the close of business on the
earlier of the Redemption Date or the Final Expiration Date, 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
satisfactory to them, and reimbursement to the Company and the Rights Agent
of all reasonable expenses incidental thereto, and upon surrender to the
Rights Agent and cancellation of the 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 Rights shall become
exercisable on the Distribution Date, and thereafter the registered holder
of any Right Certificate may, subject to Section 11(a)(ii) hereof and
except as otherwise provided herein, exercise the Rights evidenced thereby
in whole or in part upon surrender of the Right Certificate, with the form
of election to purchase on the reverse side thereof duly executed, to the
Rights Agent at the office or agency of the Rights Agent designated for
such purpose, together with payment of the Purchase Price for each one
one-thousandth of a share of Preferred Stock as to which the Rights are
exercised, at any time which is both after the Distribution Date and prior
to the earliest (the "Expiration Date") of (i) the close of business on
November 6, 2010 (the "Final Expiration Date"), (ii) the time at which the
Rights are redeemed as provided in Section 23 hereof (the "Redemption
Date") or (iii) the time at which such Rights are exchanged as provided in
Section 24 hereof.
(b) The Purchase Price shall be initially (i) $235 for each one
one-thousandth of a share of Series A Preferred Stock and (ii) $235 for
each one one-thousandth of a share of Series B Preferred Stock, in each
case purchasable upon the exercise of a Right. The Purchase Price and the
number of one one-thousandths of a share of Preferred Stock or other
securities or property to be acquired upon exercise of a Right shall be
subject to adjustment from time to time as provided in Sections 11 and 13
hereof and shall be payable in lawful money of the United States of America
in accordance with paragraph (c) of this Section 7.
(c) Except as otherwise provided herein, upon receipt of a Right
Certificate representing exercisable Rights, with the form of election to
purchase duly executed, accompanied by payment of the aggregate Purchase
Price for the shares of Preferred Stock to be purchased and an amount equal
to any applicable transfer tax required to be paid by the holder of such
Right Certificate in
15
accordance with Section 9 hereof, in cash or by certified check, cashier's
check or money order payable to the order of the Company, the Rights Agent
shall thereupon promptly (i) (A) requisition from any transfer agent of the
Preferred Stock or make available if the Rights Agent is the transfer agent
for the Preferred Stock certificates for the number of shares of Preferred
Stock to be purchased (and the Company hereby irrevocably authorizes its
transfer agent to comply with all such requests), or (B) requisition from
the depositary agent depositary receipts representing interests in such
number of one one-thousandths of a share of Preferred Stock as are to be
purchased (in which case certificates for the Preferred Stock represented
by such receipts shall be deposited by the transfer agent with the
depositary agent) (and the Company hereby directs the 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
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 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 transfer or exercise of Rights pursuant to
Section 6 hereof or this Section 7 unless such registered holder shall have
(i) completed and signed the certificate contained in the form of
assignment or election to purchase set forth on the reverse side of the
Right Certificate surrendered for such transfer or exercise and (ii)
provided such additional evidence of the identity of the Beneficial Owner
(or former Beneficial Owner) thereof as the Company or the Rights Agent
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 cancelled form,
or, if surrendered to the Rights Agent, shall be cancelled by it, and no Right
Certificates shall be issued in lieu thereof except as expressly permitted by
any of the provisions of this 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
16
otherwise than upon the exercise thereof. The Rights Agent shall deliver all
cancelled Right Certificates to the Company, or shall, at the written request of
the Company, destroy, or cause to be destroyed, such cancelled Right
Certificates, and in such case shall deliver a certificate of destruction
thereof to the Company.
Section 9. Availability of Shares of Preferred Stock.
(a) The Company covenants and agrees that it will cause to be reserved
and kept available out of its authorized and unissued shares of Preferred
Stock or any shares of Preferred Stock held in its treasury, the number of
shares of Preferred Stock that will be sufficient to permit the exercise in
full of all outstanding Rights.
(b) So long as the shares of Preferred Stock (and, following the time
that a Person becomes an Acquiring Person, shares of Company Common Stock
and other securities) issuable upon the exercise of Rights may be listed or
admitted to trading on the New York Stock Exchange or listed on any other
national securities exchange or quotation system, the Company shall use its
best efforts to cause, from and after such time as the Rights become
exercisable, all shares reserved for such issuance to be listed or admitted
to trading on the New York Stock Exchange or listed on any other exchange
or quotation system upon official notice of issuance upon such exercise.
(c) From and after such time as the Rights become exercisable, the
Company shall use its best efforts, if then necessary to permit the
issuance of shares of Preferred Stock (and following the time that a Person
first becomes an Acquiring Person, shares of Company Common Stock and other
securities) upon the exercise of Rights, to register and qualify such
shares of Preferred Stock (and following the time that a Person first
becomes an Acquiring Person, shares of Company Common Stock and other
securities) under the Securities Act and any applicable state securities or
"Blue Sky" laws (to the extent exemptions therefrom are not available),
cause such registration statement and qualifications to become effective as
soon as possible after such filing and keep such registration and
qualifications effective until the earlier of the date as of which the
Rights are no longer exercisable for such securities and the Final
Expiration Date. The Company may temporarily suspend, for a period of time
not to exceed 90 days, the exercisability of the Rights in order to prepare
and file a registration statement under the Securities Act and permit it to
become effective. Upon any such suspension, the Company shall promptly
notify the Rights Agent thereof and issue a public announcement (with
prompt notice thereof to the Rights Agent) stating that the exercisability
of the Rights has been temporarily suspended, as well as a public
announcement at such time as the suspension is no longer in effect.
Notwithstanding any provision of this Agreement to the contrary, the Rights
shall not be exercisable in any jurisdiction unless the requisite
qualification in such jurisdiction shall have been obtained and until a
registration statement under the Securities Act (if required) shall have
been declared effective.
17
(d) The Company covenants and agrees that it will take all such action
as may be necessary to ensure that all shares of Preferred Stock (and,
following the time that a Person becomes an Acquiring Person, shares of
Company Common Stock and other securities) delivered upon exercise of
Rights shall, at the time of delivery of the certificates therefor (subject
to payment of the Purchase Price), be duly and validly authorized and
issued and fully paid and nonassessable shares.
(e) The Company further covenants and agrees that it will pay when due
and payable any and all federal and state transfer taxes and charges which
may be payable in respect of the issuance or delivery of the Right
Certificates or of any shares of Preferred Stock (or shares of Company
Common Stock or other securities) upon the exercise of Rights. The Company
shall not, however, be required to pay any tax or charge 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 Stock (or shares of Company Common
Stock or other securities) in a name other than that of, the registered
holder of the Right Certificate evidencing Rights surrendered for exercise
or to issue or deliver any certificates or depositary receipts for
Preferred Stock (or shares of Company Common Stock or other securities)
upon the exercise of any Rights until any such tax or charge shall have
been paid (any such tax or charge being payable by that 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 or
charge is due.
Section 10. Preferred Stock Record Date. Each Person in whose name any
certificate for Preferred Stock is issued upon the exercise of Rights shall for
all purposes be deemed to have become the holder of record of the shares of
Preferred Stock 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 taxes or
charges) was made; provided, however, that if the date of such surrender and
payment is a date upon which the Preferred Stock transfer books of the Company
are closed, such Person shall be deemed to have become the record holder of such
shares on, and such certificate shall be dated, the next succeeding Business Day
on which the Preferred Stock transfer books of the Company are open. Prior to
the exercise of the Rights evidenced thereby, the holder of a Right Certificate
shall not be entitled to any rights of a holder of Preferred Stock for which the
Rights shall be exercisable, including, without limitation, the right to vote or
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 and Number
of Rights. The Purchase Price, the number of shares of Preferred Stock or other
securities or property purchasable upon exercise of each Right and the number of
Rights outstanding are subject to adjustment from time to time as provided in
this Section 11.
18
(a) (i) In the event the Company shall at any time after the date of
this Agreement (A) declare a dividend on either series of Preferred Stock
payable in shares of Preferred Stock, (B) subdivide either series of
outstanding Preferred Stock, (C) combine the shares of either series of
outstanding Preferred Stock into a smaller number of shares of Preferred
Stock or (D) issue any shares of its capital stock in a reclassification of
either series of Preferred Stock (including any such reclassification in
connection with a consolidation or merger in which the Company is the
continuing or surviving corporation), except as otherwise provided in this
Section 11(a), the applicable 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 and at a time
when the Preferred Stock transfer books of the Company were open, the
holder 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 such
Right. So long as any Rights are outstanding, the Company shall not effect
any of the actions set forth in Clauses (A), (B), (C) or (D) of this
paragraph with respect to either series of Preferred Stock unless the
Company shall also contemporaneously effect a like transaction with respect
to the other such series of Preferred Stock; provided, however, that in the
event that such a transaction is effected with respect to one such series
but no shares of the other series of Preferred Stock are outstanding, 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 upon such date, shall be proportionately adjusted with respect to
the holders of Rights exercisable for shares of the series of Preferred
Stock that are not outstanding as if such a dividend, subdivision,
combination or reclassification had been effected with respect to the
shares of such series of Preferred Stock.
(ii) Subject to Section 24 of this Agreement and except as
otherwise provided in this Section 11(a)(ii), in the event any Person
becomes an Acquiring Person, each holder of a Right shall thereafter
have the right to receive, upon exercise thereof at a price equal to
the then current applicable Purchase Price immediately prior to the
Person becoming an Acquiring Person multiplied by the number of one
one-thousandths of a share of the applicable series of Preferred Stock
for which such Right is then exercisable (whether or not such Right is
then exercisable), in accordance with the terms of this Agreement and
in lieu of shares of Preferred Stock, such number of shares of Common
Stock (in the case of a Class A Right) or Class B Common Stock (in the
case of a Class
19
B Right) as shall equal the result obtained by (x) multiplying the
then current applicable Purchase Price by the number of one
one-thousandths of a share of Preferred Stock for which a Right is
then exercisable (whether or not such Right is then exercisable) and
dividing that product by (y) 50% of the then current per share market
price of the Common Stock (in the case of a Class A Right) or Class B
Common Stock (in the case of a Class B Right) (determined pursuant to
Section 11(d) hereof) on the date of the occurrence of such event;
provided, however, that the applicable Purchase Price and the number
of shares of Common Stock (in the case of a Class A Right) or Class B
Common Stock (in the case of a Class B Right) so receivable upon
exercise of a Right shall thereafter be subject to further adjustment
as appropriate in accordance with Section 11(f) hereof.
Notwithstanding anything in this Agreement to the contrary, however,
from and after the time (the "invalidation time") when any Person
first becomes an Acquiring Person, any Rights that are beneficially
owned by (x) any Acquiring Person (or any Affiliate or Associate of
any Acquiring Person), (y) a transferee of any Acquiring Person (or
any such Affiliate or Associate) who becomes a transferee after the
invalidation time or (z) a transferee of any Acquiring Person (or any
such Affiliate or Associate) who became a transferee prior to or
concurrently with the invalidation time pursuant to either (I) a
transfer from the Acquiring Person to holders of its equity securities
or to any Person with whom it has any continuing agreement,
arrangement or understanding regarding the transferred Rights or (II)
a transfer which the Board of Directors has determined is part of a
plan, arrangement or understanding which has the purpose or effect of
avoiding the provisions of this paragraph, and subsequent transferees
of such Persons, shall be null and void without any further action and
any holder of such Rights shall thereafter have no rights whatsoever
with respect to such Rights under any provision of this Agreement. The
Company shall use all reasonable efforts to ensure that the provisions
of this Section 11(a)(ii) are complied with, but shall have no
liability to any holder of Right Certificates or other Person as a
result of its failure to make any determinations with respect to an
Acquiring Person or its Affiliates, Associates or transferees
hereunder. From and after the invalidation time, no Right Certificate
shall be issued pursuant to Section 3 or Section 6 hereof that
represents Rights that are or have become null and void pursuant to
the provisions of this paragraph, and any Right Certificate delivered
to the Rights Agent that represents Rights that are or have become
null and void pursuant to the provisions of this paragraph shall be
cancelled. From and after the occurrence of an event specified in
Section 13(a) hereof, any Rights that theretofore have not been
exercised pursuant to this Section 11(a)(ii) shall thereafter be
exercisable only in accordance with Section 13 and not pursuant to
this Section 11(a)(ii).
(iii) The Company may at its option substitute for a share of
Company Common Stock issuable upon the exercise of Rights in
20
accordance with the foregoing subparagraph (ii) such number or
fractions of shares of the applicable series of Preferred Stock having
an aggregate current market value equal to the current per share
market price of a share of the applicable class of Company Common
Stock. In the event that there shall not be sufficient shares of the
applicable class of Company Common Stock issued but not outstanding or
authorized but unissued to permit the exercise in full of the Rights
in accordance with the foregoing subparagraph (ii), the Board of
Directors shall, to the extent permitted by applicable law and any
material agreements then in effect to which the Company is a party (A)
determine the excess of (1) the value of the shares of Company Common
Stock issuable upon the exercise of a Right in accordance with the
foregoing subparagraph (ii) (the "Current Values") over (2) the then
current applicable Purchase Price multiplied by the number of one
one-thousandths of shares of Preferred Stock for which such Right was
exercisable immediately prior to the time that the Acquiring Person
became such (such excess, the "Spread"), and (B) with respect to each
Right (other than Rights which have become void pursuant to Section
11(a)(ii)), make adequate provision to substitute for the shares of
the applicable class of Company Common Stock issuable in accordance
with subparagraph (ii) upon exercise of a Class A Right or a Class B
Right, as the case may be, and payment of the applicable Purchase
Price, (1) cash, (2) a reduction in the applicable Purchase Price,
(3) shares of the applicable series of Preferred Stock or other equity
securities of the Company (including, without limitation, shares or
fractions of shares of preferred stock which, by virtue of having
dividend, voting and liquidation rights substantially comparable to
those of the applicable shares of Company Common Stock, are deemed in
good faith by the Board of Directors to have substantially the same
value as the shares of Common Stock (in the case of a Class A Right)
or Class B Common Stock (in the case of a Class B Right) (such shares
of the applicable series of Preferred Stock and shares or fractions of
shares of preferred stock are hereinafter referred to as "Company
Common Stock equivalents")), (4) debt securities of the Company, (5)
other assets or (6) any combination of the foregoing, having a value
which, when added to the value of the shares of Company Common Stock
actually issued upon exercise of such Right, shall have an aggregate
value equal to the Current Value (less the amount of any reduction in
the applicable Purchase Price), where such aggregate value has been
determined by the Board of Directors upon the advice of a nationally
recognized investment banking firm selected in good faith by the Board
of Directors; provided, however, if the Company shall not make
adequate provision to deliver value pursuant to clause (B) above
within thirty (30) days following the date that the Acquiring Person
became such (the "Section 11(a)(ii) Trigger Date"), then the Company
shall be obligated to deliver, to the extent permitted by applicable
law and any material agreements then in effect to which the Company is
a party, upon the surrender for exercise of a Right and without
requiring payment of the
21
applicable Purchase Price, shares of Common Stock (in the case of a
Class A Right) or Class B Common Stock (in the case of a Class B
Right) (to the extent available), and then, if necessary, such number
or fractions of shares of the applicable series of Preferred Stock (to
the extent available) and then, if necessary, cash, which shares
and/or cash have an aggregate value equal to the Spread. If, upon the
date any Person becomes an Acquiring Person, the Board of Directors
shall determine in good faith that it is likely that sufficient
additional shares of the applicable class of Company Common Stock
could be authorized for issuance upon exercise in full of the Rights,
then, if the Board of Directors so elects, 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 thirty (30) day period,
as it may be extended, is herein called the "Substitution Period"). To
the extent that the Company determines that some action need be taken
pursuant to the second and/or third sentence of this Section
11(a)(iii), the Company (x) shall provide, subject to Section
11(a)(ii) hereof and the last sentence of this Section 11(a)(iii)
hereof, that such action shall apply uniformly to all outstanding
Class A Rights and/or Class B Rights, as applicable, and (y) may
suspend the exercisability of the Class A Rights and/or Class B
Rights, as applicable, 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 second sentence and to determine the value thereof. In the event
of any such suspension, the Company shall issue a public announcement
stating that the exercisability of the Class A Rights and/or Class B
Rights, as applicable, has been temporarily suspended, as well as a
public announcement at such time as the suspension is no longer in
effect, in each case with prompt notice thereof to the Rights Agent.
For purposes of this Section 11(a)(iii), the value of the shares of
Common Stock (in the case of a Class A Right) and the Class B Common
Stock (in the case of a Class B Right) shall be the current per share
market price (as determined pursuant to Section 11(d)(i)) on the
Section 11(a)(ii) Trigger Date and the per share or fractional value
of any "Company Common Stock equivalent" shall be deemed to equal the
current per share market price of the Common Stock (in the case of a
Class A Right) and the Class B Common Stock (in the case of a Class B
Right). The Board of Directors of the Company may, but shall not be
required to, establish procedures to allocate the right to receive (a)
shares of Common Stock upon the exercise of the Class A Rights among
holders of Class A Rights and (b) shares of Class B Common Stock upon
the exercise of the Class B Rights among holders of Class B Rights, in
each case, pursuant to this Section 11(a)(iii).
(b) In case the Company shall fix a record date for the issuance of
rights, options or warrants to all holders of either series of Preferred
Stock entitling them
22
(for a period expiring within 45 calendar days after such record date) to
subscribe for or purchase shares of the applicable series of Preferred
Stock (or shares having the same rights, privileges and preferences as the
applicable series of Preferred Stock ("equivalent preferred shares")) or
securities convertible into the applicable series of Preferred Stock or
equivalent preferred shares at a price per share of the applicable series
of Preferred Stock or equivalent preferred shares (or having a conversion
price per share, if a security convertible into shares of the applicable
series of Preferred Stock or equivalent preferred shares) less than the
then current per share market price of the applicable series of Preferred
Stock (determined pursuant to Section 11(d) hereof) on such record date,
the applicable Purchase Price to be in effect after such record date shall
be determined by multiplying the applicable Purchase Price in effect
immediately prior to such record date by a fraction, the numerator of which
shall be the number of shares of such series of Preferred Stock and
equivalent preferred shares outstanding on such record date plus the number
of shares of such series of Preferred Stock and equivalent preferred shares
which the aggregate offering price of the total number of shares of such
series of Preferred Stock 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 shares of such series
of Preferred Stock and equivalent preferred shares outstanding on such
record date plus the number of additional shares of such series of
Preferred Stock 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 Company, whose determination shall
be described in a statement filed with the Rights Agent and which should
be conclusive for all purposes. Shares of Preferred Stock and equivalent
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 applicable Purchase Price shall be adjusted to be the applicable
Purchase Price which would then be in effect if such record date had not
been fixed. So long as any Rights are outstanding, the Company shall not
effect any of the actions set forth in this paragraph with respect to
either series of Preferred Stock unless the Company shall also
contemporaneously effect a like transaction with respect to the other
series of Preferred Stock; provided, however, that in the event that such
a transaction is effected with respect to one such series but no shares of
the other series of Preferred Stock are outstanding, the Purchase Price in
effect at the time of the record date for such issuance of rights, options
or warrants shall be proportionately adjusted with respect to the holders
of Rights exercisable for shares of the series of Preferred Stock that are
not outstanding as if
23
such issuance of rights, options or warrants had been effected with respect
to the shares of such series of Preferred Stock.
(c) In case the Company shall fix a record date for the making of a
distribution to all holders of either series of Preferred Stock (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 Stock) or subscription rights or warrants
(excluding those referred to in Section 11(b) hereof), the applicable
Purchase Price to be in effect after such record date shall be determined
by multiplying the applicable 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 applicable series of Preferred Stock
(determined pursuant to Section 11(d) hereof) 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 and which shall be conclusive for all purposes) of
the portion of the assets or evidences of indebtedness so to be distributed
or of such subscription rights or warrants applicable to one share of such
series of Preferred Stock, and the denominator of which shall be such
current per share market price (determined pursuant to Section 11(d)
hereof) of such series of Preferred Stock; 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 applicable Purchase
Price shall again be adjusted to be the applicable Purchase Price which
would then be in effect if such record date had not been fixed. So long
as any Rights are outstanding, the Company shall not effect any of the
actions set forth in this paragraph with respect to either series of
Preferred Stock unless the Company shall also contemporaneously effect
a like transaction with respect to the other such series of Preferred
Stock; provided, however, that in the event that such a transaction
is effected with respect to one such series but no shares of the other
series of Preferred Stock are outstanding, the Purchase Price in
effect at the time of the record date for such distribution shall be
proportionately adjusted with respect to the holders of Rights exercisable
for shares of the series of Preferred Stock that are not outstanding as
if such distribution had been effected with respect to the shares of
such series of Preferred Stock.
(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 30 consecutive Trading Days (as such term is hereinafter
defined) immediately prior to but not including such date; provided,
however, that in the event that the current per share market price of the
Security is determined during a period
24
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 30 Trading Days after but not including 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 by the principal
consolidated transaction reporting system with respect to securities listed
or admitted to trading on the New York Stock Exchange or, if the Security
is not listed or admitted to trading on the New York Stock Exchange, as
reported in the principal consolidated transaction reporting system with
respect to securities listed on the principal national securities exchange
on which the Security is listed or admitted to trading or, if the Security
is not listed or admitted to trading on any national securities exchange,
the last quoted price or, if not so quoted, the average of the high bid and
low asked prices in the over-the-counter market, as reported by the
National Association of Securities Dealers, Inc. Automated Quotation System
"NASDAQ" or such other system then in use, or, if on any such date the
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 either
series of Preferred Stock is publicly traded, the "current per share
market price" of such series of Preferred Stock shall be determined in
accordance with the method set forth in Section 11(d)(i). If either
series of Preferred Stock is not publicly traded but the corresponding
class of Company Common Stock is publicly traded, the "current per
share market price" of such series of Preferred Stock shall be
conclusively deemed to be the current per share market price of the
corresponding class of Company Common Stock as determined pursuant to
Section 11(d)(i) multiplied by one thousand (appropriately adjusted to
reflect any stock split, stock dividend or similar transaction
occurring after the date hereof). If neither class of the Company
Common Stock nor the corresponding series of Preferred Stock is
publicly 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 and which shall be conclusive for all
purposes.
25
(e) No adjustment in the applicable Purchase Price shall be required
unless such adjustment would require an increase or decrease of at least 1%
in the applicable 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-thousandth of a share of the applicable series of
Preferred Stock or share of the applicable class of Company Common Stock or
other share or security as the case may be. Notwithstanding the first
sentence of this Section 11(e), any adjustment required by this Section 11
shall be made no later than the earlier of (i) three years from the date of
the transaction which requires such adjustment or (ii) the date of the
expiration of the right to exercise any of the affected Rights.
(f) If as a result of an adjustment made pursuant to Section 11(a)
hereof, the holder of any Right thereafter exercised shall become entitled
to receive any shares of capital stock of the Company other than the
applicable series of Preferred Stock, thereafter the applicable Purchase
Price and the number of such other shares so receivable upon exercise of
such Right shall be subject to adjustment from time to time in a manner and
on terms as nearly equivalent as practicable to the provisions with respect
to the applicable series of Preferred Stock contained in Sections 11(a),
11(b), 11(c), 11(e), 11(h), 11(i) and 11(m), and the provisions of Sections
7, 9, 10, 13 and 14 hereof with respect to the applicable series of
Preferred Stock shall apply on like terms to any such other shares.
(g) Rights originally issued by the Company subsequent to any
adjustment made to the applicable Purchase Price hereunder shall evidence
the right to purchase, at the adjusted Purchase Price, the number of one
one-thousandths of a share of the applicable series of Preferred Stock
purchasable from time to time hereunder upon exercise of such Right, all
subject to further adjustment as provided herein.
(h) Unless the Company shall have exercised its election as provided
in Section 11(i), upon each adjustment of the applicable Purchase Price as
a result of the calculations made in Sections 11(b) and (c), each affected
Right outstanding immediately prior to the making of such adjustment shall
thereafter evidence the right to purchase, at the adjusted applicable
Purchase Price, that number of one one-thousandths of a share of the
applicable series of Preferred Stock (calculated to the nearest one ten-
thousandth of a share of the applicable series of Preferred Stock) obtained
by (i) multiplying (x) the number of one one-thousandths of a share covered
by such Right immediately prior to such adjustment by (y) the applicable
Purchase Price in effect immediately prior to such adjustment of such
Purchase Price and (ii) dividing the product so obtained by the applicable
Purchase Price in effect immediately after such adjustment of such Purchase
Price.
26
(i) The Company may elect on or after the date of any adjustment
of the applicable Purchase Price to adjust the number of affected
Rights, in substitution for any adjustment in the number of one
one-thousandths of a share of the applicable series of Preferred Stock
purchasable upon the exercise of such Right. Each of the affected
Rights outstanding after such adjustment of the number of such Rights
shall be exercisable for the number of one one-thousandths of a share
of the applicable series of Preferred Stock for which such Right was
exercisable immediately prior to such adjustment. Each of the affected
Rights held of record prior to such adjustment of the number of such
Rights shall become that number of Rights (calculated to the nearest
one ten-thousandth) obtained by dividing the applicable Purchase Price
in effect immediately prior to adjustment of the Purchase Price by the
applicable Purchase Price in effect immediately after adjustment of
such Purchase Price. The Company shall make a public announcement (with
prompt notice thereof to the Rights Agent) of its election to adjust
the number of Rights, indicating the record date for the adjustment,
and, if known at the time, the amount of the adjustment to be made.
This record date may be the date on which the applicable Purchase Price
is adjusted or any day thereafter, but, if the applicable Right
Certificates have been issued, shall be at least 10 days later than the
date of the public announcement. If the applicable Right Certificates
have been issued, upon each adjustment of the number of Rights pursuant
to this Section 11(i), the Company may, as promptly as practicable,
cause to be distributed to holders of record of the applicable Right
Certificates on such record date the applicable 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 applicable
Right Certificates held by such holders prior to the date of
adjustment, and upon surrender thereof, if required by the Company, new
Right Certificates evidencing all the Rights to which such holders
shall be entitled after such adjustment. Right Certificates so to be
distributed shall be issued, executed and countersigned in the manner
provided for herein and shall be registered in the names of the holders
of record of the applicable Right Certificates on the record date
specified in the public announcement.
(j) Irrespective of any adjustment or change in the applicable
Purchase Price or the number of one one-thousandths of a share of the
applicable series of Preferred Stock issuable upon the exercise of the
Rights, the applicable Right Certificates theretofore and thereafter
issued may continue to express the applicable Purchase Price and the
number of one one-thousandths of a share of the applicable series of
Preferred Stock which were expressed in the initial Right Certificates
issued hereunder.
(k) Before taking any action that would cause an adjustment
reducing the applicable Purchase Price below the then par value, if
any, of the applicable series of Preferred Stock or other shares of
capital stock issuable upon exercise of the Rights, the Company shall
take any corporate action which may, in the opinion of
27
its counsel, be necessary in order that the Company may validly and
legally issue fully paid and nonassessable shares of the applicable
series of Preferred Stock or other such shares at such adjusted
Purchase Price.
(l) In any case in which this Section 11 shall require that an
adjustment in the applicable Purchase Price be made effective as of a
record date for a specified event, the Company may elect to defer, with
prompt notice thereof to the Rights Agent, until the occurrence of such
event the issuing to the holder of any Right exercised after such
record date of the applicable series of Preferred Stock and other
capital stock or securities of the Company, if any, issuable upon such
exercise over and above the applicable series of Preferred Stock and
other capital stock or securities of the Company, if any, issuable upon
such exercise on the basis of the applicable Purchase Price in effect
prior to such adjustment; provided, however, that the Company shall
deliver to such holder a due xxxx or other appropriate instrument
evidencing such holder's right to receive such additional shares upon
the occurrence of the event requiring such adjustment.
(m) Anything in this Section 11 to the contrary notwithstanding,
the Company shall be entitled to make such reductions in the applicable
Purchase Price for either series of Preferred Stock, 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 consolidation or subdivision of either series of
Preferred Stock, issuance wholly for cash of any shares of either
series of Preferred Stock at less than the current market price,
issuance wholly for cash or either series of Preferred Stock or
securities which by their terms are convertible into or exchangeable
for either series of Preferred Stock, dividends on either series of
Preferred Stock payable in shares of Preferred Stock or issuance of
rights, options or warrants referred to hereinabove in Section 11(b),
hereafter made by the Company to holders of either series of its
Preferred Stock shall not be taxable to such stockholders.
(n) Anything in this Agreement to the contrary notwithstanding, in
the event that at any time after the date of this Agreement and prior
to the Distribution Date, the Company shall (i) declare or pay any
dividend on either class of shares of Company Common Stock payable in
shares of such class of Company Common Stock or (ii) effect a
subdivision, combination or consolidation of either class of Company
Common Stock (by reclassification or otherwise other than by payment of
a dividend payable in Company Common Stock) into a greater or lesser
number of shares of the applicable class of Company Common Stock, then
in any such case, the number of Rights associated with each share of
the applicable class of Company Common Stock then outstanding, or
issued or delivered thereafter, shall be proportionately adjusted so
that the number of Rights thereafter associated with each share of the
applicable class of Company Common Stock following any such event shall
equal the result obtained by (A) in the case of the Class A Rights,
multiplying the number of Class A Rights associated with each share of
Common Stock immediately prior to
28
such event by a fraction the numerator of which shall be the total
number of shares of Common Stock outstanding immediately prior to the
occurrence of the event and the denominator of which shall be the
total number of shares of Common Stock outstanding immediately
following the occurrence of such event and (B) in the case of the
Class B Rights, multiplying the number of Class B Rights associated
with each share of Class B Common Stock immediately prior to such
event by a fraction the numerator of which shall be the total number
of shares of Class B Common Stock outstanding immediately prior to the
occurrence of the event and the denominator of which shall be the
total number of shares of Class B Common Stock outstanding immediately
following the occurrence of such event. The adjustments provided for
in this Section 11(n) shall be made successively to either class of
Company Common Stock (but without duplication) whenever such a
dividend is declared or paid or such subdivision, combination or
consolidation is effected on such class of Company Common Stock.
(o) The Company agrees that, after the earlier of the Distribution
Date or the Stock Acquisition Date, it will not, except as permitted by
Sections 23, 24 or 27 hereof, take (or permit any Subsidiary to take)
any action if at the time such action is taken it is reasonably
foreseeable that such action will diminish substantially or eliminate
the benefits intended to be afforded by the Rights.
Section 12. Certificate of Adjusted Purchase Price or Number of
Shares. Whenever an adjustment is made as provided in Section 11 or 13 hereof,
the Company shall promptly (a) prepare a certificate setting forth such
adjustment, and a brief statement of the facts and computations accounting for
such adjustment, (b) file with the Rights Agent and with each transfer agent for
the applicable class of Company Common Stock or the applicable series of
Preferred Stock a copy of such certificate and (c) mail a brief summary thereof
to each holder of a Right Certificate, as applicable, in accordance with
Section 25 hereof (if so required under Section 25 hereof). The Rights Agent
shall be fully protected in relying on any such certificate and on any
adjustment therein contained.
Section 13. Consolidation, Merger or Sale or Transfer of Assets or
Earnings Power
(a) In the event, directly or indirectly, at any time after any
Person has become an Acquiring Person, (i) the Company shall
consolidate with or merge with and into any other Person, (ii) any
Person shall merge with and into the Company and the Company shall be
the surviving corporation of such merger and, in connection with such
merger, all or part of either one or both of the classes of Company
Common Stock 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
29
the Company or one or more of its wholly-owned Subsidiaries), then
upon the first occurrence of such event, proper provision shall be
made so that: (A) each holder of record of a Right (other than Rights
which have become null and void pursuant to Section 11(a)(ii)) shall
thereafter have the right to receive, upon the exercise thereof at a
price equal to the then current applicable Purchase Price multiplied
by the number of one one-thousandths of a share of the applicable
series of Preferred Stock for which such Right was exercisable
(whether or not such Right was then exercisable) immediately prior to
the time that any Person first became an Acquiring Person (each as
subsequently adjusted pursuant to Sections 11(a)(i), 11(b), 11(c),
11(f), 11(h), 11(i) and 11(m)), in accordance with the terms of this
Agreement and in lieu of shares of the applicable series of Preferred
Stock or the applicable class Company Common Stock of the Company,
such number of validly issued, fully paid and non-assessable and
freely tradable shares of Common Stock of the Principal Party (as
defined herein) not subject to any liens, encumbrances, rights of
first refusal or other adverse claims, as shall be equal to the result
obtained by (1) multiplying the then current applicable Purchase Price
by the number of one one-thousandths of a share of the applicable
series of Preferred Stock for which such Right was exercisable
immediately prior to the time that any Person first became an
Acquiring Person (as subsequently adjusted thereafter pursuant to
Sections 11(a)(i), 11(b), 11(c), 11(f), 11(h), 11(i) and 11(m)) and
(2) dividing that product by 50% of the then current per share market
price of the Common Stock of such Principal Party (determined pursuant
to Section 11(d)(i) hereof) on the date of consummation of such
consolidation, merger, sale or transfer; provided, that the applicable
Purchase Price (as theretofore adjusted pursuant to Sections 11(a)(i),
11(b), 11(c), 11(f), 11(h), 11(i) and 11(m)) and the number of shares
of Common Stock of such Principal Party issuable upon exercise of each
Right shall be further adjusted as provided in Section 11(f) of this
Agreement to reflect any events occurring in respect of such Principal
Party after the date of such consolidation, merger, sale or transfer;
(B) such Principal Party 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
Principal Party; and (D) such Principal Party shall take such steps
(including, but not limited to, the reservation of a sufficient number
of its shares of Common Stock in accordance with Section 9 hereof) in
connection with such consummation of any such transaction as may be
necessary to assure that the provisions hereof shall thereafter be
applicable, as nearly as reasonably may be, in relation to the shares
of its Common Stock thereafter deliverable upon the exercise of the
Rights; provided, that, upon the subsequent occurrence of any
consolidation, merger, sale or transfer of assets or other
extraordinary transaction in respect of such Principal Party, each
holder of a Right shall thereupon be entitled to receive, upon
exercise of such Right and payment of the applicable Purchase Price as
provided in this Section 13(a), such cash, shares, rights, warrants
and other property which such holder would have been entitled to
receive had such holder, at the time of such transaction, owned the
Common Stock of the Principal Party receivable upon the exercise of
such Right pursuant
30
to this Section 13(a), and such Principal Party shall take such steps
(including, but not limited to, reservation of shares of stock) as may
be necessary to permit the subsequent exercise of the Rights in
accordance with the terms hereof for such cash, shares, rights,
warrants and other property.
(b) "Principal Party" shall mean
(i) in the case of any transaction described in clauses (i)
or (ii) of the first sentence of Section 13(a) hereof: (A) the
Person that is the issuer of the securities into which the shares
of either one or both of the classes of Company Common Stock are
converted in such merger or consolidation, or, if there is more
than one such issuer, the issuer the shares of Common Stock of
which have the greatest aggregate market value of shares
outstanding, or (B) if no securities are so issued, (x) the Person
that is the other party to the merger, if such Person survives
said merger, or, if there is more than one such Person, the Person
the shares of Common Stock of which have the greatest aggregate
market value of shares outstanding or (y) if the Person that is
the other party to the merger does not survive the merger, the
Person that does survive the merger (including the Company if it
survives) or (z) the Person resulting from the consolidation; and
(ii) in the case of any transaction described in clause (iii)
of the first sentence in Section 13(a) hereof, the Person that is
the party receiving the greatest portion of the assets or earning
power transferred pursuant to such transaction or transactions,
or, if each Person that is a party to such transaction or
transactions receives the same portion of the assets or earning
power so transferred or if the Person receiving the greatest
portion of the assets or earning power cannot be determined,
whichever of such Persons as is the issuer of Common Stock having
the greatest aggregate market value of shares outstanding;
provided, however, that in any such case described in the foregoing clause
(b)(i) or (b)(ii), if the Common Stock of such Person is not at such time or has
not been continuously over the preceding 12-month period registered under
Section 12 of the Exchange Act, then (1) if such Person is a direct or indirect
Subsidiary of another Person the Common Stock of which is and has been so
registered, the term "Principal Party" shall refer to such other Person, or (2)
if such Person is a Subsidiary, directly or indirectly, of more than one Person,
the Common Stock of all of which is and has been so registered, the term
"Principal Party" shall refer to whichever of such Persons is the issuer of
Common Stock having the greatest aggregate market value of shares outstanding,
or (3) if such Person is owned, directly or indirectly, by a joint venture
formed by two or more Persons that are not owned, directly or indirectly, by the
same Person, the rules set forth in clauses (1) and (2) above shall apply to
each of the owners having an interest in the venture as if the Person owned by
the joint venture was a Subsidiary of both or all of such joint venturers, and
the Principal Party in each such case
31
shall bear the obligations set forth in this Section 13 in the same ratio as its
interest in such Person bears to the total of such interests.
(c) The Company shall not consummate any consolidation, merger,
sale or transfer referred to in Section 13(a) hereof unless prior
thereto the Company and the Principal Party involved therein shall have
executed and delivered to the Rights Agent an agreement confirming that
the requirements of Sections 13(a) and (b) hereof shall promptly be
performed in accordance with their terms and that such consolidation,
merger, sale or transfer of assets shall not result in a default by the
Principal Party under this Agreement as the same shall have been
assumed by the Principal Party pursuant to Sections 13(a) and (b)
hereof and providing that, as soon as practicable after executing such
agreement pursuant to this Section 13, the Principal Party will:
(i) prepare and file a registration statement under the
Securities Act, if necessary, with respect to the Rights and
the securities purchasable upon exercise of the Rights on an
appropriate form, use its best efforts to cause such registration
statement to become effective as soon as practicable after such
filing and use its best efforts to cause such registration
statement to remain effective (with a prospectus at all times
meeting the requirements of the Securities Act) until the Final
Expiration Date, and similarly comply with applicable state
securities laws;
(ii) use its best efforts, if the Common Stock of the
Principal Party shall be listed or admitted to trading on the New
York Stock Exchange or on another national securities exchange, to
list or admit to trading (or continue the listing of) the Rights
and the securities purchasable upon exercise of the Rights on the
New York Stock Exchange or such securities exchange, or, if the
Common Stock of the Principal Party shall not be listed or
admitted to trading on the New York Stock Exchange or a national
securities exchange, to cause the Rights and the securities
receivable upon exercise of the Rights to be reported by such
other system then in use;
(iii) deliver to holders of the Rights historical financial
statements for the Principal Party which comply in all respects
with the requirements for registration on Form 10 (or any
successor form) under the Exchange Act; and
(iv) obtain waivers of any rights of first refusal or
preemptive rights in respect of the Common Stock of the Principal
Party subject to purchase upon exercise of outstanding Rights.
(d) In case the Principal Party has provision in any of its
authorized securities or in its certificate of incorporation or by-laws
or other instrument governing its corporate affairs, which provision
would have the effect of (i) causing such Principal Party to issue
(other than to holders of Rights pursuant to
32
this Section 13), in connection with, or as a consequence of, the
consummation of a transaction referred to in this Section 13, shares
of Common Stock of such Principal Party at less than the then current
market price per share thereof (determined pursuant to Section 11(d)
hereof) or securities exercisable for, or convertible into, Common
Stock of such Principal Party at less than such then current market
price, or (ii) providing for any special payment, tax or similar
provision in connection with the issuance of the Common Stock of such
Principal Party pursuant to the provisions of Section 13, then, in
such event, the Company hereby agrees with each holder of Rights that
it shall not consummate any such transaction unless prior thereto the
Company and such Principal Party shall have executed and delivered to
the Rights Agent a supplemental agreement providing that the provision
in question of such Principal Party shall have been cancelled, waived
or amended, or that the authorized securities shall be redeemed, so
that the applicable provision will have no effect in connection with,
or as a consequence of, the consummation of the proposed transaction.
(e) The Company covenants and agrees that it shall not, at any
time after a Person first becomes an Acquiring Person, enter into any
transaction of the type contemplated by clauses (i), (ii) or (iii) of
Section 13(a) hereof if (x) at the time of or immediately after such
consolidation, merger, sale, transfer or other transaction there are
any rights, warrants or other instruments or securities outstanding or
agreements in effect which would substantially diminish or otherwise
eliminate the benefits intended to be afforded by the Rights, (y) prior
to, simultaneously with or immediately after such consolidation,
merger, sale, transfer of other transaction, the stockholders of the
Person who constitutes, or would constitute, the Principal Party for
purposes of Section 13(a) hereof shall have received a distribution of
Rights previously owned by such Person or any of its Affiliates or
Associates or (z) the form or nature of organization of the Principal
Party would preclude or limit the exercisability of the Rights.
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 such Right.
For the purposes of this Section 14(a), the current market value of a
whole Right shall be the closing price of such 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 New York Stock Exchange or, if such Rights
are not listed or admitted to trading on the New York Stock Exchange,
as reported
33
in the principal consolidated transaction reporting system with
respect to securities listed on the principal national securities
exchange on which such Rights are listed or admitted to trading or, if
such Rights are not listed or admitted to trading on any national
securities exchange, the last quoted price or, if not so quoted, the
average of the high bid and low asked prices in the over-the-counter
market, as reported by NASDAQ or such other system then in use or, if
on any such date such 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 such Rights selected by
the Board of Directors of the Company. If on any such date no such
market maker is making a market in such Rights, the fair value of such
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 either
series of Preferred Stock (other than fractions which are integral
multiples of one one-thousandth of a share of such series of Preferred
Stock) upon exercise of the Rights or to distribute certificates which
evidence fractional shares of either series of Preferred Stock (other
than fractions which are integral multiples of one one-thousandth of a
share of such series of Preferred Stock). Interests in fractions of
either series of Preferred Stock in integral multiples of one
one-thousandth of a share of such series Preferred Stock 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 series of Preferred Stock represented by such depositary
receipts. In lieu of fractional shares of either series of Preferred
Stock that are not integral multiples of one one-thousandth of a share
of such series of Preferred Stock, the Company shall pay to the
registered holders of the applicable 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 share of the
applicable series of Preferred Stock. For the purposes of this Section
14(b), the current market value of a share of the applicable series of
Preferred Stock shall be the closing price of a share of the applicable
series of Preferred Stock (as determined pursuant to 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 his right to receive any fractional Rights or any 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 expressly given to the Rights
Agent hereunder, are vested in the respective registered holders of the Right
Certificates (and, prior to the Distribution Date, the registered holders of the
Company Common Stock); and any registered holder of any Right Certificate (or,
prior to the Distribution Date, of the
34
Company Common Stock), without the consent of the Rights Agent or of the holder
of any other Right Certificate (or, prior to the Distribution Date, of the
Company Common Stock), on his own behalf and for his own benefit, may 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 (or, prior to the Distribution Date,
such Company Common Stock) 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 applicable
class of Company Common Stock;
(b) after the Distribution Date, the Right Certificates are
transferable only on the registry books of the Rights Agent if
surrendered at the office or agency of the Rights Agent designated for
such purpose, duly endorsed or accompanied by a proper instrument of
transfer; 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 Company Common Stock certificate or Ownership Statement) 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 Company Common Stock certificate or Ownership
Statement 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 either series of Preferred
Stock or any other securities of the Company which may at any time be issuable
on the exercise of the Rights represented thereby, nor shall anything contained
herein or in any 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 this Agreement), or to receive dividends or
subscription rights, or otherwise, until the Rights evidenced by such Right
Certificate shall have been exercised in accordance with the provisions hereof.
35
Section 18. Concerning the Rights Agent.
(a) The Company agrees to pay to the Rights Agent reasonable
compensation for all services rendered by it hereunder and, from time
to time, on demand of the Rights Agent, its reasonable expenses and
counsel fees and other disbursements incurred in the preparation,
delivery, amendment, administration or execution of this Agreement and
the exercise and performance of its duties hereunder. The Company also
agrees to indemnify the Rights Agent for, and to hold it harmless
against, any loss, liability, damage, judgment, fine, penalty, claim,
demand, settlement, cost or expense, incurred without gross negligence,
bad faith or willful misconduct (as finally determined by a court of
competent jurisdiction) on the part of the Rights Agent, for any action
taken, suffered or omitted by the Rights Agent in connection with the
acceptance and administration of this Agreement, including the costs
and expenses of defending against any claim of liability arising
therefrom, directly or indirectly. The indemnity provided herein shall
survive the termination of this Agreement, the resignation or removal
of the Rights Agent, and the termination and the expiration of the
Rights. The costs and expenses incurred in enforcing this right of
indemnification shall be paid by the Company. Anything to the contrary
notwithstanding, in no event shall the Rights Agent be liable for
special, punitive, indirect, consequential or incidental loss or damage
of any kind whatsoever (including but not limited to lost profits),
even if the Rights Agent has been advised of the likelihood of such
loss or damage.
(b) The Rights Agent shall be authorized to rely on, 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 acceptance and
administration of this Agreement in reliance upon any Right Certificate
or certificate for either series of Preferred Stock or either class of
Company Common Stock or for other securities of the Company, instrument
of assignment or transfer, power of attorney, endorsement, affidavit,
letter, notice, direction, consent, certificate, statement, or other
paper or document believed by it to be genuine and to be signed,
executed and, where necessary, verified or acknowledged, by the proper
Person or Persons, or otherwise upon the advice or opinion of counsel
as set forth in Section 20 hereof.
Section 19. Merger or Consolidation or Change of Name of Rights
Agent.
(a) Any Person into which the Rights Agent or any successor Rights
Agent may be merged or with which it may be consolidated, or any Person
resulting from any merger or consolidation to which the Rights Agent or
any successor Rights Agent shall be a party, or any Person succeeding
to the stockholder services business of the Rights Agent or any
successor Rights Agent, shall be the successor to the Rights Agent
under this Agreement without the execution or filing of any paper or
any further act on the part of any of the parties hereto; provided,
that such Person would be eligible for appointment as a successor
Rights Agent under the provisions of Section 21 hereof. In case at the
36
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 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.
(b) 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
only the specific duties and obligations expressly set forth in this Agreement
upon the following terms and conditions, by all of which the Company and the
holders of Right Certificates, by their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel (who may be
legal counsel for the Company), and the advice or opinion of such
counsel shall be full and complete authorization and protection to the
Rights Agent and the Rights Agent shall incur no liability as to any
action taken, suffered or omitted by it in good faith and in accordance
with such advice or opinion.
(b) Whenever in the performance of its duties under this Agreement
the Rights Agent shall deem it necessary or desirable that any fact or
matter 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 of Directors, the Vice
President-Finance or the Secretary of the Company and delivered to the
Rights Agent; and such certificate shall be full authorization and
protection to the Rights Agent for any action taken, suffered or
omitted in good faith by it under the provisions of this Agreement in
reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and
any other Person only for its own gross negligence, bad faith or
willful misconduct as finally determined by a court of competent
jurisdiction.
(d) The Rights Agent shall not be liable for or by reason of any
of the statements of fact or recitals contained in this Agreement or in
the Right
37
Certificates (except its countersignature thereof) or be required to
verify the same, but all such statements and recitals are and shall be
deemed to have been made by the Company only.
(e) The Rights Agent shall not be under any liability or
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
liable or 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 liable or responsible for any change in the exercisability
of the Rights (including the Rights becoming void pursuant to Section
11(a)(ii) hereof) or any adjustment in the terms of the Rights
(including the manner, method or amount thereof) provided for in
Sections 3, 11, 13, 23 and 24, or the ascertaining of the existence of
facts that would require any such change or adjustment (except with
respect to the exercise of Rights evidenced by Right Certificates after
receipt of a certificate furnished pursuant to Section 12, describing
such change or 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 either series of Preferred Stock or other
securities to be issued pursuant to this Agreement or any Right
Certificate or as to whether any shares of either series of Preferred
Stock or other securities will, when issued, be validly authorized and
issued, fully paid and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge
and deliver or cause to be performed, executed, acknowledged and
delivered all such further and other acts, instruments and assurances
as may reasonably be required by the Rights Agent for the carrying out
or performing by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder
from any person reasonably believed by the Rights Agent to be one of
the Chairman of the Board of Directors, the Vice President-Finance or
the Secretary 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, suffered or omitted by it in good faith in
accordance with instructions of any such officer or for any delay in
acting while waiting for those instructions. 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 and/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, or omission of, the Rights Agent in accordance with a proposal
included in any such application on or after the date specified in such
application (which date shall not be less than five Business Days after
the date any officer of the Company actually receives such application,
unless any such officer shall have consented in writing to an earlier
date) unless, prior to taking
38
any such action (or the effective date in the case of an omission),
the Rights Agent shall have received written instructions in response
to such application specifying the action to be taken or omitted.
(h) The Rights Agent and any stockholder, affiliate, director,
officer or employee of the Rights Agent may buy, sell or deal in any of
the Rights or other securities of the Company or become pecuniarily
interested in any transaction in which the Company may be interested,
or contract with or lend money to the Company or otherwise act as fully
and freely as though it were not Rights Agent under this Agreement.
Nothing herein shall preclude the Rights Agent from acting in any other
capacity for the Company or for any other Person or 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.
(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 it believes that repayment of such funds or
adequate indemnification against such risk or liability is not
reasonably assured to it.
(k) If, with respect to any Rights Certificate surrendered to the
Rights Agent for exercise or transfer, the certificate contained in the
form of assignment or the form of election to purchase set forth on the
reverse thereof, as the case may be, has not been completed to certify
the holder is not an Acquiring Person (or an Affiliate or Associate
thereof), a Rights Agent shall not take any further action with respect
to such requested exercise or transfer without first consulting with
the Company.
Section 21. Change of Rights Agent. The Rights Agent or any
successor Rights Agent may resign and be discharged from its duties under this
Agreement upon 30 days' notice in writing mailed to the Company and to each
transfer agent of each class of Company Common Stock or each series of Preferred
Stock by registered or certified mail, and, following the Distribution Date, to
the holders of the Right Certificates by first-class mail. The Company may
remove the Rights Agent or any successor Rights Agent upon 30 days' notice in
writing, mailed to the Rights Agent or successor Rights Agent, as the case may
be, and to each transfer agent of each class of Company Common Stock or each
series of Preferred Stock by registered or certified mail, and, following the
Distribution Date, to the holders of the Right Certificates by first-class mail.
If the Rights Agent shall resign or be removed or shall otherwise become
incapable of acting, the Company shall appoint a successor to the Rights Agent.
If the Company shall fail to
39
make such appointment within a period of 30 days after giving notice of such
removal or after it has been notified in writing of such resignation or
incapacity by the resigning or incapacitated Rights Agent or by the holder of a
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) a Person organized and doing business under the laws
of the United States or any State thereof, which is authorized under such laws
to perform stockholder services and is subject to supervision or examination by
federal or state authority and which at the time of its appointment as Rights
Agent has, or is an affiliate of a corporation that has, 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
each class of Company Common Stock or each series of Preferred Stock, and,
following the Distribution Date, mail a notice thereof in writing to the
registered holders of the Right Certificates. Failure to give any notice
provided for in this Section 21, however, or any defect therein, shall not
affect the legality or validity of the resignation or removal of the Rights
Agent or the appointment of the successor Rights Agent, as the case may be.
Section 22. Issuance of New Right Certificates. Notwithstanding
any of the provisions of this 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 applicable 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 either class of Company Common Stock
following the Distribution Date and prior to the earlier of the Redemption Date
and the Final Expiration Date, the Company may with respect to shares of either
class of Company Common Stock so issued or sold pursuant to (i) the exercise of
stock options, (ii) under any employee 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 the applicable Rights in connection with such issuance
or sale.
Section 23. Redemption.
(a) The Board of Directors of the Company may, at any time prior
to such time as any Person becomes an Acquiring Person, redeem all but
not less than all of the then outstanding Rights at a redemption price
of $.01 per Right, appropriately adjusted to reflect any stock split,
stock dividend or similar
40
transaction occurring after the date hereof (the redemption price
being hereinafter referred to as 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. The Redemption Price shall be payable at the
option of the Company, in cash, shares of Common Stock, or such other
form of consideration as the Board of Directors shall determine.
(b) Immediately upon the action of the Board of Directors ordering
the redemption of the Rights pursuant to paragraph (a) of this Section
23 (or at such later time as the Board of Directors may establish for
the effectiveness of such redemption), and without any further action
and without any notice, the right to exercise the Rights will terminate
and the only right thereafter of the holders of Rights shall be to
receive the Redemption Price. The Company shall promptly give public
notice of any such redemption and prompt notice thereof to the Rights
Agent; provided, however, that the failure to give, or any defect in,
any such notice shall not affect the validity of such redemption.
Within 10 days after such action of the Board of Directors ordering the
redemption of the Rights (or such later time as the Board of Directors
may establish for the effectiveness of such redemption), 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 Company Common
Stock. Any notice which is mailed in the manner herein provided shall
be deemed given, whether or not the holder receives the notice. Each
such notice of redemption shall state the method by which the payment
of the Redemption Price will be made.
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 null and void pursuant to the
provisions of Section 11(a)(ii) hereof) for shares of the applicable
class of Company Common Stock at an exchange ratio of one share of
Common Stock (or one one-thousandth of a share of Series A Preferred
Stock) per Class A Right and one share of Class B Common Stock (or one
one-thousandth of a share of Series B Preferred Stock) per Class B
Right, appropriately adjusted to reflect any stock split, stock
dividend or similar transaction occurring with respect to the
applicable class of Company Common Stock after the date hereof (such
exchange ratios being hereinafter referred to collectively or
severally, as the context shall require, as the "Exchange Ratio").
Notwithstanding the foregoing, the Board of Directors shall not be
empowered to effect such exchange at any time after an Acquiring Person
shall have become the Beneficial Owner of (1) shares of Class B Common
Stock aggregating 50% or more of the shares of Class B Common Stock
then outstanding or (2) shares of Company Common Stock representing, in
the aggregate, 50% or more of the total number of votes entitled to be
cast generally (other than in an election of
41
directors) by the holders of the Company Common Stock then outstanding.
From and after the occurrence of an event specified in Section 13(a)
hereof, any Rights that theretofore have not been exchanged pursuant to
this Section 24(a) shall thereafter be exercisable only in accordance
with Section 13 and may not be exchanged pursuant to this Section
24(a). The exchange of the Rights by the Board of Directors 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.
(b) Immediately upon the effectiveness of the action of the Board
of Directors of the Company ordering the exchange of any Rights
pursuant to paragraph (a) of this Section 24 and without any further
action and without any notice, the right to exercise such Rights shall
terminate and the only right thereafter of a holder of such Rights
shall be to receive that number of shares of the applicable class of
Company Common Stock equal to the number of such Rights held by such
holder multiplied by the applicable Exchange Ratio. The Company shall
promptly give public notice of any such exchange, with prompt notice
thereof to the Rights Agent; provided, however, that the failure to
give, or any defect in, such notice shall not affect the validity of
such exchange. The Company shall promptly mail a notice of any such
exchange to all of the holders of the Rights so exchanged at their last
addresses as they appear upon the registry books of the Rights Agent.
Any notice which is mailed in the manner herein provided shall be
deemed given, whether or not the holder receives the notice. Each such
notice of exchange will state the method by which the exchange of the
shares of the applicable class of Company Common Stock for Rights will
be effected and, in the event of any partial exchange, the number of
Rights which will be exchanged. Any partial exchange of (a) Class A
Rights shall be effected pro rata based on the number of Class A Rights
(other than Class A Rights which have become void pursuant to the
provisions of Section 11(a)(ii) hereof) held by each holder of Class A
Rights and (b) Class B Rights shall be effected pro rata based on the
number of Class B Rights (other than Class B Rights which have become
void pursuant to the provisions of Section 11(a)(ii) hereof) held by
each holder of Class B Rights.
(c) The Company may at its option substitute, and, in the event
that there shall not be sufficient shares of Common Stock or Class B
Common Stock, as the case may be, issued but not outstanding or
authorized but unissued to permit any exchange of Class A Rights or
Class B Rights, as the case may be, for Common Stock or Class B Common
Stock as contemplated in accordance with this Section 24, the Company
shall substitute, to the extent of such insufficiency, for each share
of Common Stock or Class B Common Stock that would otherwise be
issuable upon exchange of a Class A Right or Class B Right, a number of
shares of Series A Preferred Stock or Series B Preferred Stock,
respectively, or fractions thereof (or equivalent preferred shares as
such term is defined in Section 11(b)) having an aggregate current per
share market price (determined pursuant to Section 11(d) hereof) equal
to the current per share market price of one share of Common Stock
or Class B Common Stock (determined pursuant to Section 11(d)
42
hereof), as the case may be, as of the date of issuance of such
shares of Series A Preferred Stock or Series B Preferred Stock, as the
case may be, or fractions thereof (or equivalent preferred shares).
(d) The Company shall not, in connection with any exchange
pursuant to this Section 24, be required to issue fractions of shares
of Company Common Stock or to distribute certificates which evidence
fractional shares of Company Common Stock. In lieu of such fractional
shares of Company Common Stock, the Company shall pay to the registered
holders of the Right Certificates with regard to which such fractional
shares of Company Common Stock would otherwise be issuable an amount in
cash equal to the same fraction of the current market value of a whole
share of the applicable class of Company Common Stock. For the purposes
of this paragraph (d), the current market value of a whole share of
Common Stock or Class B Common Stock, as applicable, shall be the
closing price of a share of Common Stock or Class B Common Stock (as
determined pursuant to the second sentence of Section 11(d)(i) hereof),
as applicable, 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 at any time after the earlier of the
Distribution Date or the Stock Acquisition Date propose (i) to pay any
dividend payable in stock of any class to the holders of either series
of its Preferred Stock or to make any other distribution to the holders
of either series of its Preferred Stock (other than a regular quarterly
cash dividend), (ii) to offer to the holders of either series of its
Preferred Stock rights or warrants to subscribe for or to purchase any
additional shares of either series of Preferred Stock or shares of
stock of any class or any other securities, rights or options, (iii) to
effect any reclassification of either series of its Preferred Stock
(other than a reclassification involving only the subdivision of an
outstanding series of Preferred Stock), (iv) to effect the liquidation,
dissolution or winding up of the Company, (v) 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 or (vi) to declare or pay any dividend
on either class of Company Common Stock payable in either class of
Company Common Stock or to effect a subdivision, combination or
consolidation of either class of Company Common Stock (by
reclassification or otherwise than by payment of dividends in Company
Common Stock), then, in each such case, the Company shall give to each
holder of a Right Certificate and to the Rights Agent, each 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 liquidation, dissolution or winding up is to take place and the
date of participation therein by the holders of such class and/or
series of the Company Common Stock
43
and/or Preferred Stock, if any such date is to be fixed, and such
notice shall be so given in the case of any action covered by clause
(i) or (ii) above at least 10 days prior to the record date for
determining holders of the applicable series of Preferred Stock for
purposes of such action, and in the case of any such other action, at
least 10 days prior to the date of the taking of such proposed action
or the date of participation therein by the holders of such class
and/or series of Company Common Stock and/or Preferred Stock,
whichever shall be the earlier.
(b) In case any event described in Section 11(a)(ii) or Section 13
shall occur then the Company shall as soon as practicable thereafter
give to each holder of a Right Certificate (or if occurring prior to
the Distribution Date, the holders of the applicable class of Company
Common Stock) 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) and Section 13 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 sufficiently given or made if
sent by first-class mail, postage prepaid, addressed (until another address is
filed in writing with the Rights Agent) as follows:
Xxxxxxx-Xxxxxx Corporation
0000 Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Corporate Secretary
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 first-class mail, postage prepaid, addressed (until another address
is filed in writing with the Company) as follows:
Mellon Investor Services LLC
00 Xxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxx
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. Except as provided in the
penultimate sentence of this Section 27, for so long as the Rights are then
redeemable, the Company may in its sole and absolute discretion, and the Rights
Agent shall if the
44
Company so directs, supplement or amend any provision of this Agreement in any
respect without the approval of any holders of the Rights. At any time when the
Rights are no longer redeemable, except as provided in the penultimate sentence
of this Section 27, the Company may, and the Rights Agent shall, if the Company
so directs, supplement or amend this Agreement without the approval of any
holders of Rights; provided, that no such supplement or amendment may (a)
adversely affect the interests of the holders of Rights as such (other than an
Acquiring Person or an Affiliate or Associate of an Acquiring Person), (b) cause
the Rights again to become redeemable or (c) cause the Agreement again to become
amendable other than in accordance with this sentence. Notwithstanding anything
contained in this Agreement to the contrary, no supplement or amendment shall be
made which changes the Redemption Price. Upon the delivery of a certificate from
an appropriate officer of the Company which states that the supplement or
amendment is in compliance with the terms of this Section 27, the Rights Agent
shall execute such supplement or amendment, provided that any supplement or
amendment that does not change or affect the rights, duties, liabilities or
obligations of the Rights Agent shall become effective immediately upon
execution by the Company, whether or not also executed 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 other than the Company, the Rights
Agent and the registered holders of the Right Certificates (and, prior to the
Distribution Date, the Company Common Stock) any legal or equitable right,
remedy or claim under this Agreement; but this Agreement shall be for the sole
and exclusive benefit of the Company, the Rights Agent and the registered
holders of the Right Certificates (and, prior to the Distribution Date, the
Company Common Stock).
Section 30. Severability. If any term, provision, covenant or
restriction of this Agreement or applicable to 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; provided, however, that
all provisions regarding the rights, duties and obligations of the Rights Agent
shall be governed by and construed in accordance with the laws of the State of
New York applicable to contracts made and to be performed entirely within
such State.
Section 32. Counterparts. This Agreement may be executed in any
number of counterparts and each of such counterparts shall for all purposes be
deemed to
45
be an original, and all such counterparts shall together constitute but one
and the same instrument.
Section 33. Descriptive Headings. Descriptive headings of the
several Sections of this 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, including, without
limitation, the right and power to (i) interpret the provisions of this
Agreement and (ii) make all determinations deemed necessary or advisable for the
administration of this Agreement (including, without limitation, a determination
to redeem or not redeem the Rights or to amend or not amend 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. The Rights Agent is entitled to always assume the Board of
Directors acted in good faith and shall be fully protected and incur no
liability in reliance thereon.
[The remainder of this page intentionally left blank]
46
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and attested, all as of the day and year first above written.
XXXXXXX-XXXXXX CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chairman and Chief Executive Officer
MELLON INVESTOR SERVICES LLC
By: /s/ Xxxxxx Xxxxx
-----------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
Exhibit A-1
FORM
OF
CERTIFICATE OF DESIGNATIONS
OF
SERIES A PARTICIPATING PREFERRED STOCK
OF
XXXXXXX-XXXXXX CORPORATION
(Pursuant to Section 151 of the
General Corporation Law of the State of Delaware)
-------------------
Xxxxxxx-Xxxxxx Corporation, a corporation organized and existing under
the General Corporation Law of the State of Delaware (hereinafter called the
"Company"), hereby certifies that the following resolution was duly adopted by
the Board of Directors of the Company as required by Section 151 of the General
Corporation Law of the State of Delaware at a meeting duly called and held on
November 20, 2001:
RESOLVED, that pursuant to the authority granted to and vested in the
Board of Directors of the Company (hereinafter called the "Board of Directors"
or the "Board") in accordance with the provisions of the Company's Restated
Certificate of Incorporation (hereinafter called the "Certificate of
Incorporation"), the Board of Directors, hereby creates a series of Preferred
Stock, par value $.01 per share (the "Preferred Stock"), of the Company and
hereby states the designation and number of shares, and fixes the relative
rights, powers and preferences thereof, and the limitations thereof, as follows:
(A) Designation and Amount. The shares of such series shall be
designated as "Series A Participating Preferred Stock" (the "Series A
Preferred Stock") and the number of shares constituting the Series A
Preferred Stock shall be 100,000. 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 Company
convertible into Series A Preferred Stock.
2
(B) Dividends and Distributions.
(1) Subject to the rights of the holders of any shares of any
series of Preferred Stock of the Company ranking prior and
superior to the Series A Preferred Stock with respect to
dividends, the holders of shares of Series A Preferred Stock, in
preference to the holders of Common Stock, par value $1 per share,
of the Company (the "Common Stock") and Class B Common Stock, par
value $1 per share, of the Company (the "Class B Common Stock"
and, together with the Common Stock, the "Company Common Stock"),
and of any other stock of the Company ranking junior to the Series
A Preferred Stock with respect to dividends, shall be entitled to
receive, when, as and if declared by the Board of Directors out of
funds legally available for such 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 "Dividend Payment Date"), commencing on the first Dividend
Payment Date after the first issuance of a share or fraction of a
share of Series A Preferred Stock, in an amount per share (rounded
to the nearest cent) equal to the greater of (a) $1 or (b) subject
to the provision for adjustment hereinafter set forth, 1,000 times
the aggregate per share amount of all cash dividends, and 1,000
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, declared on the Common Stock
since the immediately preceding Dividend Payment Date or, with
respect to the first Dividend Payment Date, since the first
issuance of any share or fraction of a share of Series A Preferred
Stock. In the event the Company shall at any time after the
effective time of the merger effected pursuant to the Second
Amended and Restated Agreement and Plan of Merger, dated as of
November 6, 2000, as first amended and restated as of January 11,
2001 and as further amended and restated as of August 17, 2001,
among the Company, Unitrin, Inc., a Delaware corporation, and CW
Disposition Company, a Delaware corporation (the "Effective
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 clause (b) of 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
3
and the denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such event.
(2) The Company shall declare a dividend or distribution on
the Series A Preferred Stock as provided in paragraph (1) of this
Section (B) immediately after it declares a dividend or
distribution on the Common Stock (other than a dividend payable in
shares of Common Stock); provided, that, in the event no dividend
or distribution shall have been declared on the Common Stock
during the period between any Dividend Payment Date and the next
subsequent Dividend Payment Date, a dividend of $1 per share on
the Series A Preferred Stock shall nevertheless be payable, when,
as and if declared, on such subsequent Dividend Payment Date.
(3) Dividends shall begin to accrue and be cumulative,
whether or not earned or declared, on outstanding shares of Series
A Preferred Stock from the 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 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 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 Dividend
Payment Date, in either of which events such dividends shall begin
to accrue and be cumulative from such 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-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 60 days prior to
the date fixed for the payment thereof.
(C) Voting Rights. The holders of shares of Series A Preferred
Stock shall have the following voting rights:
(1) Subject to the provision for adjustment hereinafter set
forth and except as otherwise provided in the Certificate of
Incorporation or as required by law, each whole share of Series A
Preferred Stock shall entitle the holder thereof to a number of
votes equal to 1,000 times the number of votes which each share of
the
4
Common Stock is entitled to vote. In the event the Company shall
at any time after the Effective 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 of votes 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.
(2) Except as otherwise provided herein, in the Certificate
of Incorporation or in any other Certificate of Designations
creating a series of Preferred Stock or any similar stock, and
except as otherwise required 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 Company having general voting
rights shall vote together as one class on all matters submitted
to a vote of stockholders of the Company.
(3) Except as set forth herein, or as otherwise provided 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.
(D) Certain Restrictions.
(1) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Preferred Stock as provided
in Section (B) are in arrears, thereafter and until all accrued
and unpaid dividends and distributions, whether or not earned or
declared, on shares of Series A Preferred Stock outstanding shall
have been paid in full, the Company shall not:
(i) declare or pay dividends, or make any other distributions, on
any shares of stock ranking junior (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 (as to dividends or
upon
5
liquidation, dissolution or winding up) with the Series A
Preferred Stock, except dividends paid ratably on the Series A
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;
(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 Company may at any time
redeem, purchase or otherwise acquire shares of any such junior
stock in exchange for shares of any stock of the Company ranking
junior (as to dividends and upon dissolution, liquidation or
winding up) to the Series A Preferred Stock or rights, warrants
or options to acquire such junior stock;
(iv) redeem or purchase or otherwise acquire for consideration
any shares of Series A Preferred Stock, or 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 in accordance with a purchase offer made in writing or by
publication (as determined by the Board of Directors) to all
holders of such shares upon such terms as the Board of Directors,
after consideration of the respective annual dividend rates and
other relative rights and preferences of the respective series
and classes, shall determine in good faith will result in fair
and equitable treatment among the respective series or classes.
(2) The Company shall not permit any subsidiary of the
Company to purchase or otherwise acquire for consideration any
shares of stock of the Company unless the Company could, under
paragraph (1) of this Section (D), purchase or otherwise acquire
such shares at such time and in such manner.
(E) Reacquired Shares. Any shares of Series A Preferred Stock
purchased or otherwise acquired by the Company in any manner whatsoever
shall be retired and cancelled promptly after the acquisition thereof.
(F) Liquidation, Dissolution or Winding Up. Upon any
liquidation, dissolution or winding up of the Company, no distribution
shall be made (1) to the holders of the Company Common Stock or of
shares of any other stock of the Company ranking junior, upon
liquidation, dissolution or winding up, to the Series A Preferred Stock
unless, prior thereto, the holders of shares of Series A Preferred
Stock shall have received an amount equal to the greater of (i) $1,000
per share, plus an amount equal to accrued and unpaid dividends and
distributions thereon,
6
whether or not earned or declared, to the date of such payment
and (ii) an aggregate amount per share, subject to the provision for
adjustment hereinafter set forth, equal to 1,000 times the aggregate
amount to be distributed per share to holders of shares of Common
Stock, or (2) to the holders of shares of stock ranking on a parity
upon liquidation, dissolution or winding up with the Series A Preferred
Stock, except distributions made ratably on the Series A Preferred
Stock and all such parity stock in proportion to the total amounts to
which the holders of all such shares are entitled upon such
liquidation, dissolution or winding up. In the event the Company shall
at any time after the Effective 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 proviso in clause (1) of 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.
(G) Consolidation, Merger, etc. In case the Company shall
enter into any consolidation, merger, combination or other transaction
in which the shares of Common Stock are converted into, 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 converted into, exchanged for or
changed into an amount per share (subject to the provision for
adjustment hereinafter set forth) equal to 1,000 times the aggregate
amount of stock, securities, cash and/or any other property (payable in
kind), as the case may be, into which or for which each share of Common
Stock is converted, exchanged or converted. In the event the Company
shall at any time after the Effective 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 conversion,
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.
7
(H) No Redemption. The shares of Series A Preferred Stock
shall not be redeemable from any holder.
(I) Rank. The Series A Preferred Stock shall rank, with
respect to the payment of dividends and the distribution of assets
upon liquidation, dissolution or winding up of the Company, on a parity
with the Series B Preferred Stock, and senior to all classes of the
Company Common Stock.
(J) Amendment. If any proposed amendment to the Certificate of
Incorporation (including this Certificate of Designations) would alter,
change or repeal any of the preferences, powers or special rights given
to the Series A Preferred Stock so as to affect the Series A Preferred
Stock adversely, then the holders of the Series A Preferred Stock shall
be entitled to vote separately as a class upon such amendment, and the
affirmative vote of two-thirds of the outstanding shares of the Series
A Preferred Stock, voting separately as a class, shall be necessary for
the adoption thereof, in addition to such other vote as may be required
by the General Corporation Law of the State of Delaware.
8
IN WITNESS WHEREOF, this Certificate of Designations is
executed on behalf of the Company by its _____________ and attested by its
Secretary this ___ day of November, 2001.
-----------------------------------------
Name:
Title:
Attest:
--------------------------------------
Secretary
Exhibit A-2
FORM
OF
CERTIFICATE OF DESIGNATIONS
OF
SERIES B PARTICIPATING PREFERRED STOCK
OF
XXXXXXX-XXXXXX CORPORATION
(Pursuant to Section 151 of the
General Corporation Law of the State of Delaware)
-------------------
Xxxxxxx-Xxxxxx Corporation, a corporation organized and
existing under the General Corporation Law of the State of Delaware (hereinafter
called the "Company"), hereby certifies that the following resolution was duly
adopted by the Board of Directors of the Company as required by Section 151 of
the General Corporation Law of the State of Delaware at a meeting duly called
and held on November 20, 2001:
RESOLVED, that pursuant to the authority granted to and vested
in the Board of Directors of the Company (hereinafter called the "Board of
Directors" or the "Board") in accordance with the provisions of the Company's
Restated Certificate of Incorporation (hereinafter called the "Certificate of
Incorporation"), the Board of Directors, hereby creates a series of Preferred
Stock, par value $.01 per share (the "Preferred Stock"), of the Company and
hereby states the designation and number of shares, and fixes the relative
rights, powers and preferences thereof, and the limitations thereof, as follows:
(A) Designation and Amount. The shares of
such series shall be designated as "Series B
Participating Preferred Stock" (the "Series B
Preferred Stock") and the number of shares
constituting the Series B Preferred Stock shall be
100,000. 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 B 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 Company convertible into Series B
Preferred Stock.
2
(B) Dividends and Distributions.
(1) Subject to the rights of the
holders of any shares of any series of
Preferred Stock of the Company ranking prior
and superior to the Series B Preferred Stock
with respect to dividends, the holders of
shares of Series B Preferred Stock, in
preference to the holders of Common Stock, par
value $1 per share, of the Company (the
"Common Stock") and Class B Common Stock, par
value $1 per share, of the Company (the "Class
B Common Stock" and, together with the Common
Stock, the "Company Common Stock"), and of any
other stock of the Company ranking junior to
the Series B Preferred Stock with respect to
dividends, shall be entitled to receive, when,
as and if declared by the Board of Directors
out of funds legally available for such
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 "Dividend Payment
Date"), commencing on the first Dividend
Payment Date after the first issuance of a
share or fraction of a share of Series B
Preferred Stock, in an amount per share
(rounded to the nearest cent) equal to the
greater of (a) $1 or (b) subject to the
provision for adjustment hereinafter set
forth, 1,000 times the aggregate per share
amount of all cash dividends, and 1,000 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 Class B Common Stock, declared on
the Class B Common Stock since the immediately
preceding Dividend Payment Date or, with
respect to the first Dividend Payment Date,
since the first issuance of any share or
fraction of a share of Series B Preferred
Stock. In the event the Company shall at any
time after the effective time of the merger
effected pursuant to the Second Amended and
Restated Agreement and Plan of Merger, dated
as of November 6, 2000, as first amended and
restated as of January 11, 2001 and as further
amended and restated as of August 17, 2001,
among the Company, Unitrin, Inc., a Delaware
corporation, and CW Disposition Company, a
Delaware corporation (the "Effective Time"),
declare or pay any dividend on the Class B
Common Stock payable in shares of Class B
Common Stock, or effect a subdivision or
combination or consolidation of the
outstanding shares of Class B Common Stock (by
reclassification or otherwise than by payment
of a dividend in shares of Class B Common
Stock) into a greater or lesser number of
shares of Class B Common Stock, then in each
such case the amount to which holders of
shares of Series B Preferred Stock were
entitled immediately prior to such event under
clause (b) of the preceding sentence shall be
adjusted by multiplying such amount by a
fraction, the numerator of which is the number
of
3
shares of Class B Common Stock outstanding
immediately after such event and the
denominator of which is the number of shares
of Class B Common Stock that were outstanding
immediately prior to such event.
(2) The Company shall declare a
dividend or distribution on the Series B
Preferred Stock as provided in paragraph (1)
of this Section (B) immediately after it
declares a dividend or distribution on the
Class B Common Stock (other than a dividend
payable in shares of Class B Common Stock);
provided, that, in the event no dividend or
distribution shall have been declared on the
Class B Common Stock during the period between
any Dividend Payment Date and the next
subsequent Dividend Payment Date, a dividend
of $1 per share on the Series B Preferred
Stock shall nevertheless be payable, when, as
and if declared, on such subsequent Dividend
Payment Date.
(3) Dividends shall begin to accrue
and be cumulative, whether or not earned or
declared, on outstanding shares of Series B
Preferred Stock from the 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 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 Dividend Payment
Date or is a date after the record date for
the determination of holders of shares of
Series B Preferred Stock entitled to receive a
quarterly dividend and before such Dividend
Payment Date, in either of which events such
dividends shall begin to accrue and be
cumulative from such Dividend Payment Date.
Accrued but unpaid dividends shall not bear
interest. Dividends paid on the shares of
Series B 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-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 B Preferred Stock entitled
to receive payment of a dividend or
distribution declared thereon, which record
date shall be not more than 60 days prior to
the date fixed for the payment thereof.
(C) Voting Rights. The holders of shares of
Series B Preferred Stock shall have the following
voting rights:
(1) Subject to the provision for
adjustment hereinafter set forth and except as
otherwise provided in the Certificate of
Incorporation or as required by law, each
whole share of Series B
4
Preferred Stock shall entitle the holder
thereof to a number of votes equal to 1,000
times the number of votes which each share of
the Class B Common Stock of the Company is
entitled to vote. In the event the Company
shall at any time after the Effective Time,
declare or pay any dividend on the Class B
Common Stock payable in shares of Class B
Common Stock, or effect a subdivision or
combination or consolidation of the
outstanding shares of Class B Common Stock (by
reclassification or otherwise than by payment
of a dividend in shares of Class B Common
Stock) into a greater or lesser number of
shares of Class B Common Stock, then in each
such case the amount of votes to which holders
of shares of Series B 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
Class B Common Stock outstanding immediately
after such event and the denominator of which
is the number of shares of Class B Common
Stock that were outstanding immediately prior
to such event.
(2) Except as otherwise provided
herein, in the Certificate of Incorporation or
in any other Certificate of Designations
creating a series of Preferred Stock or any
similar stock, and except as otherwise
required by law, the holders of shares of
Series B Preferred Stock and the holders of
shares of Class B Common Stock and any other
capital stock of the Company having general
voting rights shall vote together as one class
on all matters submitted to a vote of
stockholders of the Company.
(3) Except as set forth herein, or as
otherwise provided by law, holders of Series B
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 Class B Common Stock as
set forth herein) for taking any corporate
action.
(D) Certain Restrictions.
(1) Whenever quarterly dividends or
other dividends or distributions payable on
the Series B Preferred Stock as provided in
Section (B) are in arrears, thereafter and
until all accrued and unpaid dividends and
distributions, whether or not earned or
declared, on shares of Series B Preferred
Stock outstanding shall have been paid in
full, the Company shall not:
(i) declare or pay dividends, or make any
other distributions, on any shares of stock
ranking junior (as to dividends or upon
5
liquidation, dissolution or winding up) to the
Series B Preferred Stock;
(ii) declare or pay dividends, or make any
other distributions, on any shares of stock
ranking on a parity (as to dividends or upon
liquidation, dissolution or winding up) with
the Series B Preferred Stock, except dividends
paid ratably on the Series B 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;
(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 B Preferred Stock, provided that the
Company may at any time redeem, purchase or
otherwise acquire shares of any such junior
stock in exchange for shares of any stock of
the Company ranking junior (as to dividends
and upon dissolution, liquidation or winding
up) to the Series B Preferred Stock or rights,
warrants or options to acquire such junior
stock;
(iv) redeem or purchase or otherwise
acquire for consideration any shares of Series
B Preferred Stock, or any shares of stock
ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up)
with the Series B Preferred Stock, except in
accordance with a purchase offer made in
writing or by publication (as determined by
the Board of Directors) to all holders of such
shares upon such terms as the Board of
Directors, after consideration of the
respective annual dividend rates and other
relative rights and preferences of the
respective series and classes, shall determine
in good faith will result in fair and
equitable treatment among the respective
series or classes.
(2) The Company shall not permit any
subsidiary of the Company to purchase or
otherwise acquire for consideration any shares
of stock of the Company unless the Company
could, under paragraph (1) of this Section
(D), purchase or otherwise acquire such shares
at such time and in such manner.
(E) Reacquired Shares. Any shares of Series
B Preferred Stock purchased or otherwise acquired by
the Company in any manner whatsoever shall be
retired and cancelled promptly after the acquisition
thereof.
(F) Liquidation, Dissolution or Winding Up.
Upon any liquidation, dissolution or winding up of
the Company, no distribution shall be made (1) to
the holders of the Company Common Stock or of
6
shares of any other stock of the Company ranking
junior, upon liquidation, dissolution or winding up,
to the Series B Preferred Stock unless, prior
thereto, the holders of shares of Series B Preferred
Stock shall have received an amount equal to the
greater of (i) $1,000 per share, plus an amount
equal to accrued and unpaid dividends and
distributions thereon, whether or not earned or
declared, to the date of such payment and (ii) an
aggregate amount per share, subject to the provision
for adjustment hereinafter set forth, equal to 1,000
times the aggregate amount to be distributed per
share to holders of shares of Class B Common Stock,
or (2) to the holders of shares of stock ranking on
a parity upon liquidation, dissolution or winding up
with the Series B Preferred Stock, except
distributions made ratably on the Series B Preferred
Stock and all such parity stock in proportion to the
total amounts to which the holders of all such
shares are entitled upon such liquidation,
dissolution or winding up. In the event the Company
shall at any time after the Effective Time, declare
or pay any dividend on the Class B Common Stock
payable in shares of Class B Common Stock, or effect
a subdivision or combination or consolidation of the
outstanding shares of Class B Common Stock (by
reclassification or otherwise than by payment of a
dividend in shares of Class B Common Stock) into a
greater or lesser number of shares of Class B Common
Stock, then in each such case the aggregate amount
to which holders of shares of Series B Preferred
Stock were entitled immediately prior to such event
under the proviso in clause (1) of the preceding
sentence shall be adjusted by multiplying such
amount by a fraction the numerator of which is the
number of shares of Class B Common Stock outstanding
immediately after such event and the denominator of
which is the number of shares of Class B Common
Stock that were outstanding immediately prior to
such event.
(G) Consolidation, Merger, etc. In case the
Company shall enter into any consolidation, merger,
combination or other transaction in which the shares
of Class B Common Stock are converted into,
exchanged for or changed into other stock or
securities, cash and/or any other property, then in
any such case each share of Series B Preferred Stock
shall at the same time be similarly converted into,
exchanged for or changed into an amount per share
(subject to the provision for adjustment hereinafter
set forth) equal to 1,000 times the aggregate amount
of stock, securities, cash and/or any other property
(payable in kind), as the case may be, into which or
for which each share of Class B Common Stock is
converted, exchanged or converted. In the event the
Company shall at any time after the Effective Time,
declare or pay any dividend on the Class B Common
Stock payable in shares of Class B Common Stock, or
effect a subdivision or combination or consolidation
of the outstanding shares of Class B Common Stock
(by reclassification or otherwise than by payment of
a dividend in shares of Class B Common Stock) into a
greater or lesser number of shares of Class B Common
Stock, then in each such case the
7
amount set forth in the preceding sentence with
respect to the conversion, exchange or change of
shares of Series B Preferred Stock shall be adjusted
by multiplying such amount by a fraction, the
numerator of which is the number of shares of Class
B Common Stock outstanding immediately after such
event and the denominator of which is the number of
shares of Class B Common Stock that were outstanding
immediately prior to such event.
(H) No Redemption. The shares of Series B
Preferred Stock shall not be redeemable from any
holder.
(I) Rank. The Series B Preferred Stock
shall rank, with respect to the payment of dividends
and the distribution of assets upon liquidation,
dissolution or winding up of the Company, on a
parity with the Series A Preferred Stock, and senior
to all classes of the Company Common Stock.
(J) Amendment. If any proposed amendment to
the Certificate of Incorporation (including this
Certificate of Designations) would alter, change or
repeal any of the preferences, powers or special
rights given to the Series B Preferred Stock so as
to affect the Series B Preferred Stock adversely,
then the holders of the Series B Preferred Stock
shall be entitled to vote separately as a class upon
such amendment, and the affirmative vote of
two-thirds of the outstanding shares of the Series B
Preferred Stock, voting separately as a class, shall
be necessary for the adoption thereof, in addition
to such other vote as may be required by the General
Corporation Law of the State of Delaware.
8
IN WITNESS WHEREOF, this Certificate of Designations is
executed on behalf of the Company by its _____________ and attested by its
Secretary this ___ day of November, 2001.
__________________________________
Name:
Title:
Attest:
_________________________
Secretary
Exhibit B-1
Form of Class A Right Certificate
Certificate No. R- ____ ___ Rights
NOT EXERCISABLE AFTER NOVEMBER 6, 2010 OR EARLIER IF REDEMPTION OR
EXCHANGE OCCURS. THE CLASS A RIGHTS ARE SUBJECT TO REDEMPTION AT $.01
PER CLASS A RIGHT AND TO EXCHANGE ON THE TERMS SET FORTH IN THE RIGHTS
AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, AS SET FORTH IN THE RIGHTS
AGREEMENT, CLASS A RIGHTS OWNED BY OR TRANSFERRED TO ANY PERSON WHO
BECOMES AN ACQUIRING PERSON (AS DEFINED IN THE RIGHTS AGREEMENT) AND
CERTAIN TRANSFEREES THEREOF WILL BECOME NULL AND VOID AND WILL NO
LONGER BE TRANSFERABLE.
Class A Right Certificate
XXXXXXX-XXXXXX CORPORATION
This certifies that ___________ or registered assigns, is the registered owner
of the number of Class A Rights set forth above, each of which entitles the
owner thereof, subject to the terms, provisions and conditions of the Amended
and Restated Rights Agreement, dated as of November 6, 2000, as amended and
restated as of November 20, 2001, and as amended from time to time (the "Rights
Agreement"), between Xxxxxxx-Xxxxxx Corporation, a Delaware corporation (the
"Company"), and Mellon Investor Services LLC, a New Jersey limited liability
company (f/k/a ChaseMellon Shareholder Services, L.L.C.), as Rights Agent (the
"Rights Agent"), to purchase from the Company at any time after the Distribution
Date (as such term is defined in the Rights Agreement) and prior to 5:00 P.M.,
New York City time, on the earlier of November 6, 2010 or the earlier expiration
of the Rights in accordance with the terms of the Rights Agreement in accordance
with its terms, at the office or agency of the Rights Agent designated for such
purpose, or of its successor as Rights Agent, one one-thousandth of a fully paid
non-assessable share of Series A Participating Preferred Stock, par value $.01
per share (the "Series A Preferred Stock"), of the Company, at a purchase price
of $235 per one one-thousandth of a share of Series A Preferred Stock (the
"Purchase Price"), upon presentation and surrender of this Class A Right
Certificate with the Form of Election to Purchase duly executed. The number of
Class A Rights evidenced by this Class A Right Certificate (and the number of
one one-thousandths of a share of Series A Preferred Stock 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 November 29, 2001 (the
"Effective Time"), based on the Series A Preferred Stock as constituted at such
date. As provided in the Rights Agreement, the Purchase Price, the number of one
one-thousandths of a share of Series A Preferred Stock (or other securities or
property) which may be purchased upon the exercise of the Class A Rights and the
number of Class A Rights evidenced by this Class A Right Certificate are subject
to modification and adjustment upon the happening of certain events.
2
Notwithstanding anything in the Rights Agreement to the
contrary, from and after the time (the "invalidation time") when any person
first becomes an Acquiring Person (as defined in the Rights Agreement), the
Class A Rights evidenced hereby beneficially owned by (x) any Acquiring Person
(or any Affiliate (as defined in the Rights Agreement) or Associate (as defined
in the Rights Agreement) of any Acquiring Person), (y) a transferee of any
Acquiring Person (or any such Affiliate or Associate) who becomes a transferee
after the invalidation time or (z) a transferee of any Acquiring Person (or any
such Affiliate or Associate) who became a transferee prior to or concurrently
with the invalidation time pursuant to either (I) a transfer from the Acquiring
Person to holders of its equity securities or to any person with whom it has any
continuing agreement, arrangement or understanding regarding the transferred
Class A Rights or (II) a transfer which the Board of Directors of the Company
has determined is part of a plan, arrangement or understanding which has the
purpose or effect of avoiding the provisions of Section 11(a)(ii) of the Rights
Agreement, and subsequent transferees of such persons, shall be void without any
further action and any holder hereof shall thereafter have no rights whatsoever
with respect to the Class A Rights evidenced hereby under any provision of the
Rights Agreement.
This Class A 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 Class A Right
Certificates. Copies of the Rights Agreement are on file at the principal
executive offices of the Company and the above-mentioned office or agency of the
Rights Agent. The Company will mail to the holder of this Class A Right
Certificate a copy of the Rights Agreement without charge after receipt of a
written request therefor.
This Class A Right Certificate, with or without other Class A
Right Certificates, upon surrender at the office or agency of the Rights Agent
designated for such purpose, may be exchanged for another Class A Right
Certificate or Class A Right Certificates of like tenor and date evidencing
Class A Rights entitling the holder to purchase a like aggregate number of
shares of Series A Preferred Stock as the Class A Rights evidenced by the Class
A Right Certificate or Class A Right Certificates surrendered shall have
entitled such holder to purchase. If this Class A Right Certificate shall be
exercised in part, the holder shall be entitled to receive upon surrender hereof
another Class A Right Certificate or Class A Right Certificates for the number
of whole Class A Rights not exercised.
Subject to the provisions of the Rights Agreement, the Class A
Rights evidenced by this Certificate (i) may be redeemed by the Company at a
redemption price of $.01 per Class A Right or (ii) may be exchanged in whole or
in part for shares of Series A Preferred Stock or shares of Common Stock, par
value $1 per share, of the Company (the "Common Stock").
No fractional shares of Series A Preferred Stock or Common
Stock will be issued upon the exercise of any Class A Right or Class A Rights
evidenced hereby (other than fractions which are integral multiples of one
one-thousandth of a share of Series A Preferred Stock, which
3
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 Class A Right Certificate, as such, shall be
entitled to vote or receive dividends or be deemed for any purpose the holder of
the Series A Preferred Stock or of any other securities of the Company which may
at any time be issuable on the exercise hereof, nor shall anything contained in
the Rights Agreement or herein be construed to confer upon the holder hereof, as
such, any of the rights of a stockholder of the Company or any right to vote for
the election of directors or upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate action, or to
receive notice of meetings or other actions affecting stockholders (except as
provided in the Rights Agreement) or to receive dividends or subscription
rights, or otherwise, until the Class A Right or Class A Rights evidenced by
this Class A Right Certificate shall have been exercised as provided in the
Rights Agreement.
This Class A Right Certificate shall not be valid or
obligatory for any purpose until it shall have been countersigned by the Rights
Agent.
4
WITNESS the facsimile signature of the proper officers of the
Company and its corporate seal. Dated as of _________________.
ATTEST: XXXXXXX-XXXXXX CORPORATION
By: __________________ By: ____________________________
Countersigned:
MELLON INVESTOR SERVICES LLC
________________________________
as Rights Agent
By: ____________________________
Authorized Signature
5
Form of Reverse Side of Class A Right Certificate
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Class A Right Certificate)
FOR VALUE RECEIVED _________________________ hereby sells,
assigns and transfers unto ___________________________
____________________________________________________________
(Please print name and address of transferee)
____________________________________________________________
Class A Rights represented by this Class A Right Certificate, together with all
right, title and interest therein, and does hereby irrevocably constitute and
appoint ___________________ Attorney, to transfer said Class A Rights on the
books of the within-named Company, with full power of substitution.
Dated: _________________
______________________________
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered
national securities exchange, a member of the National Association of Securities
Dealers, Inc., or a commercial bank or trust company having an office or
correspondent in the United States.
_______________________________________
(To be completed)
The undersigned hereby certifies that the Class A Rights
evidenced by this Class A Right Certificate are not beneficially owned by, were
not acquired by the undersigned from, and are not being assigned to, an
Acquiring Person or an Affiliate or Associate thereof (as defined in the Rights
Agreement).
________________________
Signature
6
Form of Reverse Side of Class A Right Certificate - continued
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to exercise
Class A Rights represented by the Class A Right Certificate)
To XXXXXXX-XXXXXX CORPORATION:
The undersigned hereby irrevocably elects to exercise
__________________ Class A Rights represented by this Class A Right Certificate
to purchase the shares of Series A Preferred Stock (or other securities or
property) issuable upon the exercise of such Class A Rights and requests that
certificates for such shares of Series A Preferred Stock (or such other
securities) be issued in the name of:
______________________________________________________________
(Please print name and address)
______________________________________________________________
If such number of Class A Rights shall not be all the Class A Rights evidenced
by this Class A Right Certificate, a new Class A Right Certificate for the
balance remaining of such Class A Rights shall be registered in the name of and
delivery to:
Please insert social security
or other identifying number
______________________________________________________________
(Please print name and address)
______________________________________________________________
Dated: ____________________
________________________
Signature
(Signature must conform to holder specified on Class A Right Certificate)
Signature Guaranteed:
Signature must be guaranteed by a member of firm of a
registered national securities exchange, a member of the National Association of
Securities Dealers, Inc. or a commercial bank or trust company having an office
or correspondent in the United States.
7
Form of Reverse Side of Class A Right Certificate - continued
_________________________________________________________________
(To be completed)
The undersigned certifies that the Class A Rights evidenced by
this Class A Right Certificate are not beneficially owned by, and were not
acquired by the undersigned from, an Acquiring Person or an Affiliate or
Associate thereof (as defined in the Rights Agreement)
______________________
Signature
_________________________________________________________________
NOTICE
The signature in the Form of Assignment or Form of Election to
Purchase, as the case may be, must conform to the name as written upon the face
of this Class A 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 Class A Rights evidenced by this Class A 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.
Exhibit B-2
Form of Class B Right Certificate
Certificate No. R- ____ ___ Rights
NOT EXERCISABLE AFTER NOVEMBER 6, 2010 OR EARLIER IF REDEMPTION OR
EXCHANGE OCCURS. THE CLASS B RIGHTS ARE SUBJECT TO REDEMPTION AT $.01
PER CLASS B RIGHT AND TO EXCHANGE ON THE TERMS SET FORTH IN THE RIGHTS
AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, AS SET FORTH IN THE RIGHTS
AGREEMENT, CLASS B RIGHTS OWNED BY OR TRANSFERRED TO ANY PERSON WHO
BECOMES AN ACQUIRING PERSON (AS DEFINED IN THE RIGHTS AGREEMENT) AND
CERTAIN TRANSFEREES THEREOF WILL BECOME NULL AND VOID AND WILL NO
LONGER BE TRANSFERABLE.
Class B Right Certificate
XXXXXXX-XXXXXX CORPORATION
This certifies that ___________ or registered assigns, is the registered owner
of the number of Class B Rights set forth above, each of which entitles the
owner thereof, subject to the terms, provisions and conditions of the Amended
and Restated Rights Agreement, dated as of November 6, 2000, as amended and
restated as of November 20, 2001, and as amended from time to time (the "Rights
Agreement"), between Xxxxxxx-Xxxxxx Corporation, a Delaware corporation (the
"Company"), and Mellon Investor Services LLC, a New Jersey limited liability
company (f/k/a ChaseMellon Shareholder Services, L.L.C.), as Rights Agent (the
"Rights Agent"), to purchase from the Company at any time after the Distribution
Date (as such term is defined in the Rights Agreement) and prior to 5:00 P.M.,
New York City time, on the earlier of November 6, 2010 or the earlier expiration
of the Rights in accordance with the terms of the Rights Agreement in accordance
with its terms, at the office or agency of the Rights Agent designated for such
purpose, or of its successor as Rights Agent, one one-thousandth of a fully paid
non-assessable share of Series B Participating Preferred Stock, par value $.01
per share (the "Series B Preferred Stock"), of the Company, at a purchase price
of $235 per one one-thousandth of a share of Series B Preferred Stock (the
"Purchase Price"), upon presentation and surrender of this Class B Right
Certificate with the Form of Election to Purchase duly executed. The number of
Class B Rights evidenced by this Class B Right Certificate (and the number of
one one-thousandths of a share of Series B Preferred Stock 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 November 29, 2001 (the
"Effective Time"), based on the Series B Preferred Stock as constituted at such
date. As provided in the Rights Agreement, the Purchase Price, the number of one
one-thousandths of a share of Series B Preferred Stock (or other securities or
property) which may be purchased upon the exercise of the Class B Rights and the
number of Class B Rights evidenced by this Class B Right Certificate are subject
to modification and adjustment upon the happening of certain events.
2
Notwithstanding anything in the Rights Agreement to the
contrary, from and after the time (the "invalidation time") when any person
first becomes an Acquiring Person (as defined in the Rights Agreement), the
Class B Rights evidenced hereby beneficially owned by (x) any Acquiring Person
(or any Affiliate (as defined in the Rights Agreement) or Associate (as defined
in the Rights Agreement) of any Acquiring Person), (y) a transferee of any
Acquiring Person (or any such Affiliate or Associate) who becomes a transferee
after the invalidation time or (z) a transferee of any Acquiring Person (or any
such Affiliate or Associate) who became a transferee prior to or concurrently
with the invalidation time pursuant to either (I) a transfer from the Acquiring
Person to holders of its equity securities or to any person with whom it has any
continuing agreement, arrangement or understanding regarding the transferred
Class B Rights or (II) a transfer which the Board of Directors of the Company
has determined is part of a plan, arrangement or understanding which has the
purpose or effect of avoiding the provisions of Section 11(a)(ii) of the Rights
Agreement, and subsequent transferees of such persons, shall be void without any
further action and any holder hereof shall thereafter have no rights whatsoever
with respect to the Class B Rights evidenced hereby under any provision of the
Rights Agreement.
This Class B 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 Class B Right
Certificates. Copies of the Rights Agreement are on file at the principal
executive offices of the Company and the above-mentioned office or agency of the
Rights Agent. The Company will mail to the holder of this Class B Right
Certificate a copy of the Rights Agreement without charge after receipt of a
written request therefor.
This Class B Right Certificate, with or without other Class B
Right Certificates, upon surrender at the office or agency of the Rights Agent
designated for such purpose, may be exchanged for another Class B Right
Certificate or Class B Right Certificates of like tenor and date evidencing
Class B Rights entitling the holder to purchase a like aggregate number of
shares of Series B Preferred Stock as the Class B Rights evidenced by the Class
B Right Certificate or Class B Right Certificates surrendered shall have
entitled such holder to purchase. If this Class B Right Certificate shall be
exercised in part, the holder shall be entitled to receive upon surrender hereof
another Class B Right Certificate or Class B Right Certificates for the number
of whole Class B Rights not exercised.
Subject to the provisions of the Rights Agreement, the Class B
Rights evidenced by this Certificate (i) may be redeemed by the Company at a
redemption price of $.01 per Class B Right or (ii) may be exchanged in whole or
in part for shares of Series B Preferred Stock or shares of Class B Common
Stock, par value $1 per share, of the Company (the "Class B Common Stock").
No fractional shares of Series B Preferred Stock or Class B
Common Stock will be issued upon the exercise of any Class B Right or Class B
Rights evidenced hereby (other than fractions which are integral multiples of
one one-thousandth of a share of Series B Preferred
3
Stock, which may, at the election of the Company, be evidenced by depositary
receipts), but in lieu thereof a cash payment will be made, as provided in the
Rights Agreement.
No holder of this Class B Right Certificate, as such, shall be
entitled to vote or receive dividends or be deemed for any purpose the holder of
the Series B Preferred Stock or of any other securities of the Company which may
at any time be issuable on the exercise hereof, nor shall anything contained in
the Rights Agreement or herein be construed to confer upon the holder hereof, as
such, any of the rights of a stockholder of the Company or any right to vote for
the election of directors or upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate action, or to
receive notice of meetings or other actions affecting stockholders (except as
provided in the Rights Agreement) or to receive dividends or subscription
rights, or otherwise, until the Class B Right or Class B Rights evidenced by
this Class B Right Certificate shall have been exercised as provided in the
Rights Agreement.
This Class B Right Certificate shall not be valid or
obligatory for any purpose until it shall have been countersigned by the Rights
Agent.
4
WITNESS the facsimile signature of the proper officers of the
Company and its corporate seal. Dated as of _________________.
ATTEST: XXXXXXX-XXXXXX CORPORATION
By: __________________ By: _____________________________
Countersigned:
MELLON INVESTOR SERVICES LLC
_________________________________
as Rights Agent
By _______________________________
Authorized Signature
5
Form of Reverse Side of Class B Right Certificate
FORM OF ASSIGNMENT
(To be executed by the registered holder if
such holder desires to transfer the Class B Right Certificate)
FOR VALUE RECEIVED _________________________ hereby sells,
assigns and transfers unto ___________________________
____________________________________________________________
(Please print name and address of transferee)
____________________________________________________________
Class B Rights represented by this Class B Right Certificate, together with all
right, title and interest therein, and does hereby irrevocably constitute and
appoint ___________________ Attorney, to transfer said Class B Rights on the
books of the within-named Company, with full power of substitution.
Dated: _________________
______________________________
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered
national securities exchange, a member of the National Association of Securities
Dealers, Inc., or a commercial bank or trust company having an office or
correspondent in the United States.
_________________________________________
(To be completed)
The undersigned hereby certifies that the Class B Rights
evidenced by this Class B Right Certificate are not beneficially owned by, were
not acquired by the undersigned from, and are not being assigned to, an
Acquiring Person or an Affiliate or Associate thereof (as defined in the Rights
Agreement).
________________________
Signature
6
Form of Reverse Side of Class B Right Certificate - continued
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to exercise
Class B Rights represented by the Class B Right Certificate)
To XXXXXXX-XXXXXX CORPORATION:
The undersigned hereby irrevocably elects to exercise
__________________ Class B Rights represented by this Class B Right Certificate
to purchase the shares of Series B Preferred Stock (or other securities or
property) issuable upon the exercise of such Class B Rights and requests that
certificates for such shares of Series B Preferred Stock (or such other
securities) be issued in the name of:
______________________________________________________________
(Please print name and address)
______________________________________________________________
If such number of Class B Rights shall not be all the Class B Rights evidenced
by this Class B Right Certificate, a new Class B Right Certificate for the
balance remaining of such Class B Rights shall be registered in the name of and
delivery to:
Please insert social security
or other identifying number
______________________________________________________________
(Please print name and address)
______________________________________________________________
Dated: ____________________
________________________
Signature
(Signature must conform to holder specified on Class B Right Certificate)
Signature Guaranteed:
Signature must be guaranteed by a member of firm of a
registered national securities exchange, a member of the National Association of
Securities Dealers, Inc. or a commercial bank or trust company having an office
or correspondent in the United States.
7
Form of Reverse Side of Class B Right Certificate - continued
_________________________________________________________________
(To be completed)
The undersigned certifies that the Class B Rights evidenced by
this Class B Right Certificate are not beneficially owned by, and were not
acquired by the undersigned from, an Acquiring Person or an Affiliate or
Associate thereof (as defined in the Rights Agreement)
______________________
Signature
_________________________________________________________________
NOTICE
The signature in the Form of Assignment or Form of Election to
Purchase, as the case may be, must conform to the name as written upon the face
of this Class B 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 Class B Rights evidenced by this Class B 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.
