Exhibit 3
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NORDSON CORPORATION
AND
NATIONAL CITY BANK, RIGHTS AGENT
SECOND RESTATED RIGHTS AGREEMENT
Dated as of
May 21, 2003
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TABLE OF CONTENTS
Page
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INDEX OF DEFINED TERMS............................................................iii
SECOND RESTATED RIGHTS AGREEMENT....................................................1
Section 1. Certain Definitions.....................................................1
Section 2. Appointment of Rights Agent.............................................6
Section 3. Issue of Right Certificates.............................................6
Section 4. Form of Right Certificates..............................................8
Section 5. Countersignature and Registration......................................10
Section 6. Transfer, Split Up, Combination, and Exchange of Right
Certificates; Mutilated, Destroyed, Lost, or Stolen Right
Certificates...........................................................11
Section 7. Exercise of Rights; Purchase Price; Expiration Date of Rights..........12
Section 8. Cancellation and Destruction of Right Certificates.....................16
Section 9. Reservation and Availability of Shares.................................16
Section 10. Common Share Record Date...............................................20
Section 11. Adjustment of Purchase Price, and Exercise Price Number and Type
of Shares, or Number of Rights ........................................20
Section 12. Certificates of Adjusted Purchase Price or Number of Shares............31
Section 13. Fractional Rights and Fractional Shares................................31
Section 14. Rights of Action.......................................................32
Section 15. Agreement of Rights Holders............................................33
Section 16. Right Certificate Holder Not Deemed a Shareholder......................34
Section 17. Concerning the Rights Agent............................................34
Section 18. Merger or Consolidation or Change of Name of Rights Agent..............35
Section 19. Duties of Rights Agent.................................................36
Section 20. Change of Rights Agent.................................................40
Section 21. Issuance of New Right Certificates.....................................41
Section 22. Redemption.............................................................41
Section 23. Notice of Certain Events...............................................43
Section 24. Notices................................................................44
Section 25. Supplements and Amendments.............................................45
Section 26. Successors.............................................................45
Section 27. Determinations and Actions by the Board of Directors, etc..............45
Section 28. Benefits of this Agreement.............................................46
Section 29. Severability...........................................................46
Section 30. Governing Law..........................................................47
Section 31. Counterparts...........................................................47
Section 32. Descriptive Headings...................................................47
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Exhibit A
"EXPRESS" TERMS OF SERIES B CONVERTIBLE PREFERRED SHARES.....................A-1
Exhibit B
FORM OF RIGHT CERTIFICATE....................................................B-1
Exhibit C
SUMMARY OF RIGHTS TO PURCHASE COMMON SHARES..................................C-1
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INDEX OF DEFINED TERMS
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Acquiring Person..............................................................1
Affiliate.....................................................................3
Associate.....................................................................3
Beneficial Owner..............................................................3
beneficially own..............................................................3
Business Day..................................................................5
close of business.............................................................5
Common Shares.................................................................5
Company.......................................................................1
Distribution Date.............................................................6
equivalent common shares.....................................................23
Exchange Act..................................................................3
Exercise Price................................................................5
Expiration Date..............................................................13
Final Expiration Date........................................................13
Flip-in Event.............................................................5, 22
Issuance......................................................................5
market price.................................................................25
NASDAQ.......................................................................17
NYSE..........................................................................6
Person........................................................................5
Preferred Shares..............................................................5
Purchase Price................................................................6
Record Date...................................................................1
Redemption Price.............................................................42
Right.........................................................................1
Right Certificate.............................................................7
Rights Agent..................................................................1
Securities Act...............................................................18
Shares Acquisition Date.......................................................6
Subsidiary....................................................................6
Summary of Rights.............................................................7
Trading Day..................................................................27
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SECOND RESTATED RIGHTS AGREEMENT
This Agreement, dated as of May 21, 2003, between Nordson
Corporation, an Ohio corporation (the "Company"), and National City Bank, a
national banking association organized and existing under the laws of the United
States (the "Rights Agent"), amends and restates the Restated Rights Agreement,
dated as of November 7, 1997, between the Company and the Rights Agent.
The Board of Directors of the Company has authorized and
declared a dividend consisting of one right (a "Right") for each Common Share
with a par value of $1.00 of the Company outstanding on September 9, 1988 (the
"Record Date"), and has authorized the issuance of one Right in respect of each
Common Share of the Company issued between the Record Date and the earlier of
the occurrence of a Shares Acquisition Date, the Expiration Date, or the Final
Expiration Date (as such terms are hereinafter defined), including Common Shares
that are treasury shares as of the Record Date and subsequently become
outstanding. Each Right initially represents the right to purchase one Common
Share of the Company.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
Section 1. Certain Definitions. For purposes of this Agreement,
the following terms have the meanings indicated:
(a) An "Acquiring Person" means any Person that, together with
all Affiliates and Associates of such Person, is the Beneficial Owner of 15% or
more of the Common Shares of the Company then outstanding; provided that, (w) an
Acquiring Person
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shall not include the Company, any Subsidiary, any employee benefit plan or
employee stock ownership plan of the Company or of any Subsidiary, or any Person
organized, appointed, or established by the Company or any Subsidiary for or
pursuant to the terms of any such plan, (x) a Person shall not be deemed to have
become an Acquiring Person solely as a result of a reduction in the number of
Common Shares outstanding, unless subsequent to such reduction such Person, or
any Affiliate or Associate of such Person, becomes the Beneficial Owner of any
additional Common Shares other than as a result of a stock dividend, stock
split, or similar transaction effected by the Company in which all shareholders
are treated equally, (y) for purposes of determining whether Xxxx X. Xxxx or
Xxxx X. Xxxx, together with each of their Affiliates or Associates, is the
Beneficial Owner of 15% or more of the Common Shares then outstanding, the
Common Shares then held by the Xxxxxx X. Xxxx Trust, by the Nord Family
Foundation, and by the Xxxx and Xxxx Xxxx Foundation shall be excluded; for
purposes of determining whether the Xxxxxx X. Xxxx Trust, the Nord Family
Foundation, or the Xxxx and Xxxx Xxxx Foundation, together with each of their
Affiliates and Associates, is the Beneficial Owner of 15% or more of the Common
Shares then outstanding, the Common Shares then held by Xxxx X. Xxxx and by Xxxx
X. Xxxx shall be excluded; for purposes of determining whether the Nord Family
Foundation, together with its Affiliates and Associates, is the Beneficial Owner
of 15% or more of the Common Shares then outstanding, the Common Shares then
held by the Xxxx and Xxxx Xxxx Foundation will be excluded; and, for purposes of
determining whether the Xxxx and Xxxx Xxxx Foundation, together with its
Affiliates and Associates, is the Beneficial Owner of 15% or more of the Common
Shares then outstanding, the Common Shares then held by the Nord Family
Foundation will be excluded, and (z) a Person will
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not be deemed to be an Acquiring Person if the Person becomes the Beneficial
Owner of more than 15% of the Common Shares inadvertently and, as soon as
practicable after the Person learns about such beneficial ownership, divests a
sufficient number of Common Shares so that the Person ceases to be the
Beneficial Owner of more than 15% of the Common Shares.
(b) An "Affiliate" and "Associate" have the respective meanings
given them 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 hereof.
(c) A Person is deemed to be the "Beneficial Owner" of, and is
deemed to "beneficially own," any securities:
(i) that such Person, or any of such Person's Affiliates or
Associates, beneficially owns, directly or indirectly;
(ii) that such Person, or any of such Person's Affiliates or
Associates, directly or indirectly, has the right to acquire (whether
such right is exercisable immediately or only after the passage of time)
pursuant to any agreement, arrangement, or understanding (whether or not
in writing), upon the exercise of any conversion right, exchange right,
other right, warrant, or option, or otherwise, except that a Person is
not deemed to be the "Beneficial Owner" of, or to "beneficially own,"
(A) securities tendered pursuant to a tender offer or exchange offer
made by such Person or any of such Person's Affiliates or Associates
until such tendered securities are accepted for purchase or exchange or
(B) securities issuable upon exercise of these Rights;
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(iii) that such Person, or any of such Person's Affiliates or
Associates, has the right, directly or indirectly, to vote or dispose of
pursuant to any agreement, arrangement, or understanding (whether or not
in writing), except that a Person is not deemed to be the Beneficial
Owner of, or to "beneficially own," any security under this subparagraph
(iii) if the agreement, arrangement, or understanding to vote such
security (A) arises solely from a revocable proxy given in response to a
public proxy or consent solicitation made pursuant to, and in accordance
with, the applicable rules and regulations of the Exchange Act and (B)
is not then reportable by such Person on Schedule 13D under the Exchange
Act (or any comparable or successor report); or
(iv) that are beneficially owned, directly or indirectly, by any
other Person with whom or which such Person, or any of such Person's
Affiliates or Associates, has any agreement, arrangement, or
understanding (whether or not in writing) for the purpose of acquiring,
holding, voting (except pursuant to a revocable proxy as described in
subparagraph (iii) of this paragraph (c)), or disposing of any
securities of the Company.
Notwithstanding the foregoing, (x) a Person shall not be deemed to be the
Beneficial Owner of, or to "beneficially own," any security if such beneficial
ownership arises solely as a result of such Person's status as a "clearing
agency," as defined in Section 3(a)(23) of the Exchange Act, and (y) a Person
engaged in business as an underwriter of securities shall not be deemed to be
the Beneficial Owner of, or to "beneficially own," any securities acquired
through such Person's participation in good faith in an underwriting syndicate
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pursuant to an agreement to which the Company is a party until expiration of 40
calendar days after the date on which such securities are acquired.
(d) A "Business Day" means any day other than a Saturday,
Sunday, or a day on which banking institutions in the State of Ohio are
authorized or obligated by law or executive order to close.
(e) The "close of business" on any given date means 5:00 P.M.,
Cleveland time, on such date.
(f) "Common Shares" means the Common Shares with a par value of
$1.00 of the Company and any shares other than Common Shares issued in a
subdivision, combination, or reclassification of the Common Shares, for which an
adjustment is made under Section 11(a)(i).
(g) "Exercise Price" means the exercise price per share set
forth in Section 11(a)(ii).
(h) "Flip-in Event" means an event described in Section
11(a)(ii).
(i) "Issuance" includes the issuance of authorized but unissued
shares and the transfer of treasury shares.
(j) A "Person" means any individual, corporation, business
trust, partnership, or other organization.
(k) "Preferred Shares" means Series B Convertible Preferred
Shares of the Company with the express terms set forth in Exhibit A to this
Agreement.
(l) "Purchase Price" means the purchase price per share set
forth in Section 7(b).
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(m) The "Shares Acquisition Date" means the first date of public
announcement by the Company or an Acquiring Person (by press release, filing
made with the Securities and Exchange Commission, or otherwise) that a Person
has become an Acquiring Person.
(n) A "Subsidiary" means any corporation or other entity of
which a majority of the voting power of the voting equity securities or other
equity interests is owned, directly or indirectly, by the Company.
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 and hereby certifies that it complies with the requirements of the
National Association of Securities Dealers Inc. and the New York Stock Exchange,
Inc. (the "NYSE") governing transfer agents and registrars. The Company may from
time to time appoint such Co-Rights Agents as it may deem necessary or
desirable. Any actions that may be taken by the Rights Agent pursuant to the
terms of this Agreement may be taken by any such Co-Rights Agent.
Section 3. Issue of Right Certificates. (a) Until the close of
business on (i) the 20th calendar day after the occurrence of a Shares
Acquisition Date or (ii) any earlier date designated by the Board of Directors
of the Company (the earlier of these dates being herein referred to as the
"Distribution Date"), the Rights will be evidenced (subject to the provisions of
Section 3(b)) by the certificates for Common Shares registered in the names of
the holders of the Common Shares (which certificates for Common Shares shall
also be deemed to be Right certificates) and not by separate Right
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certificates, and the Rights will be transferable only in connection with the
transfer of the Common Shares on the transfer books of the Company maintained by
the Company or its appointed transfer agent. As soon as practicable after the
Distribution Date, the Rights Agent will send, by first-class, insured, postage
prepaid mail, to each record holder of Common Shares as of the close of business
on the Distribution Date at the address of such holder shown on the records of
the Company, a Right certificate, in substantially the form of Exhibit B hereto
("Right Certificate"), evidencing one Right for each Common Share held of record
as of the close of business on the Distribution Date. As of the close of
business on the Distribution Date, the Rights will be evidenced solely by such
Right Certificates.
(b) As soon as practicable after the date of this Agreement, the
Company will send a copy of a Summary of Rights to Purchase Common Shares, in
substantially the form attached hereto as Exhibit C (the "Summary of Rights") to
each record holder of Common Shares. Until the Distribution Date (or the earlier
redemption or expiration of the Rights), the Rights will be evidenced by the
certificates for the associated Common Shares. Until the Distribution Date (or
the earlier redemption or expiration of the Rights), the surrender for transfer
of any of the certificates for outstanding Common Shares, with or without a copy
of the Summary of Rights, shall also constitute the surrender for transfer of
the Rights associated with the Common Shares represented by such certificate.
(c) Rights shall be issued in respect of all Common Shares
issued or surrendered for transfer or exchange after the Record Date but prior
to the earlier of the occurrence of a Shares Acquisition Date, the Expiration
Date, or the Final Expiration Date
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(as such terms are defined in Section 7). Certificates representing Common
Shares issued or surrendered for transfer or exchange after the Record Date but
prior to the earlier of the Distribution Date, the Expiration Date, or the Final
Expiration Date shall have impressed on, printed on, written on, or otherwise
affixed to them the following legend:
This certificate also evidences and entitles the holder hereof to
certain Rights as set forth in a Restated Rights Agreement between
Nordson Corporation and a Rights Agent, as amended from time to time
(the "Restated Rights Agreements"), the terms of which are hereby
incorporated in this certificate by reference and a copy of which is on
file at the principal executive offices of Nordson Corporation. Under
certain circumstances, as set forth in the Restated Rights Agreement,
such Rights will be evidenced by separate certificates and will no
longer be evidenced by this certificate. Nordson Corporation will mail
to the holder of this certificate a copy of the Restated Rights
Agreement (as in effect on the date of mailing) without charge promptly
after receipt of a written request therefor. Under certain
circumstances, Rights that are or were beneficially owned by an
Acquiring Person or an Affiliate or Associate of an Acquiring Person (as
such terms are defined in the Restated Rights Agreement) and any
subsequent holder of such Rights may become null and void.
Until the Distribution Date, the Rights associated with the Common Shares
represented by certificates containing the foregoing legend shall be evidenced
by such certificates alone, and the surrender for transfer of any such
certificate shall also constitute the surrender for transfer of the Rights
associated with the Common Shares represented by such certificate.
Section 4. Form of Right Certificates. (a) Each Right
Certificate (and the forms of assignment and of election to purchase shares to
be printed on the reverse of the Right Certificate) shall be substantially the
same as Exhibit B hereto and may have such marks of identification or
designation and such legends, summaries, or endorsements printed thereon as the
Company may deem appropriate and as are not inconsistent with the provisions of
this Agreement, as may be required to comply with any applicable law, with any
rule or regulation made pursuant thereto, or with any rule or regulation of any
stock
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exchange on which the Rights may from time to time be listed or of any
association on which the Rights may from time to time be authorized for
quotation, or to conform to usage. Subject to the provisions of Section 21, the
Right Certificates, whenever issued, shall be dated as of the Record Date and,
on their face, shall entitle the holders thereof to purchase such number of
Common Shares of the Company as shall be set forth therein (or, at the close of
business on the 20th calendar day following the occurrence of a Shares
Acquisition Date, two Common Shares of the Company) at the Purchase Price per
share (or, at the close of business on the 20th calendar day following the
occurrence of a Shares Acquisition Date, at the Exercise Price per share); the
number of such Common Shares, the Purchase Price, and the Exercise Price shall
be subject to adjustment as provided in this Agreement.
(b) Notwithstanding any other provisions of this Agreement, any
Right Certificate issued pursuant to Section 3 or Section 21 that represents
Rights beneficially owned by (i) an Acquiring Person or any Associate or
Affiliate of an Acquiring Person, (ii) a transferee of an Acquiring Person (or
of any such Associate or Affiliate) that becomes a transferee after the
Acquiring Person became an Acquiring Person, or (iii) a transferee of an
Acquiring Person (or of any such Associate or Affiliate) that becomes a
transferee prior to or concurrently with the Acquiring Person's becoming an
Acquiring Person and that either (A) holds an equity interest in such Acquiring
Person (or any such Associate or Affiliate) or has any continuing agreement,
arrangement, or understanding with such Acquiring Person (or any such Associate
or Affiliate) regarding the transferred Rights or (B) receives such Rights
pursuant to a transfer that the Board of Directors of the Company has determined
is part of a plan, arrangement, or understanding
9
that has as a primary purpose or effect the avoidance of Section 7(e), any Right
Certificate issued at any time to any nominee of an Acquiring Person, of any
Associate or Affiliate of an Acquiring Person, or of any such transferee, and
any Right Certificate issued pursuant to Section 6 or Section 11 upon transfer,
exchange, replacement, or adjustment of any other Right Certificate referred to
in this sentence, shall contain the following legend:
The Rights represented by this Right Certificate are or were
beneficially owned by a Person who was an Acquiring Person or an
Affiliate or Associate of an Acquiring Person (as such terms are defined
in the Restated Rights Agreement). Accordingly, this Right Certificate
and the Rights represented hereby may become null and void in the
circumstances specified in Section 7(e) of the Restated Rights
Agreement.
Section 5. Countersignature and Registration. (a) The Right
Certificates shall be executed on behalf of the Company by its Chairman of the
Board, Chief Executive Officer, President, or any Vice President, either
manually or by facsimile signature, and have affixed thereto the Company's seal
or a facsimile thereof attested by the Secretary or an Assistant Secretary of
the Company, either manually or by facsimile signature. The Right Certificates
shall be manually countersigned by the Rights Agent and shall not be valid for
any purpose unless so countersigned. In case any officer of the Company who has
signed any of the Right Certificates ceases to be such officer of the Company
before countersignature by the Rights Agent and issuance and delivery by the
Company, such Right Certificates may nevertheless be countersigned by the Rights
Agent, issued, and delivered with the same force and effect as though the person
who signed such Right Certificates had not ceased to be such officer of the
Company; and any Right Certificate may be signed on behalf of the Company by any
person who, at the date such Right Certificate is signed, is a proper officer of
the Company to sign such Right
10
Certificate, although at the date of the execution of this Agreement such person
was not such an officer.
(b) Following the Distribution Date, the Rights Agent will keep
or cause to be kept books for registration and transfer of the Right
Certificates. 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 Section 4(b), Section 7(e), and Section 13, any
Right Certificate may, at any time after the close of business on the
Distribution Date and at or prior to the close of business on the earlier of the
Expiration Date or the Final Expiration Date, be transferred, split up,
combined, or exchanged for another Right Certificate or Right Certificates
entitling the registered holder to purchase the same number of Common Shares (or
Preferred Shares or other securities) as the Right Certificate surrendered then
entitled such holder (or former holder in the case of a transfer) to purchase.
Any registered holder desiring to transfer, split up, combine, or exchange any
Right Certificate or Right Certificates shall make such request in writing
delivered to the Rights Agent and shall surrender the Right Certificate or Right
Certificates to be transferred, split up, combined, or exchanged at the
principal office of the Rights Agent or such other office as the Rights Agent
may designate from time to time for that purpose. Neither the Rights Agent nor
the Company shall be obligated to take any action with respect to the transfer
of any such surrendered Right Certificate until the registered holder has
completed and signed the
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certificate contained in the form of assignment on the reverse side of such
Right Certificate and has provided such additional evidence of the identity of
the Beneficial Owner or former Beneficial Owner, or the Affiliates or Associates
of the Beneficial Owner or former Beneficial Owner, as the Company has
reasonably requested. Thereupon the Rights Agent shall, subject to Section 4(b),
Section 7(e), and Section 13, 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,
split up, combination, or exchange of Right Certificates.
(b) Upon receipt by the Company and the Rights Agent of evidence
reasonably satisfactory to them of the loss, theft, destruction, or mutilation
of a Right Certificate, and, in case of the loss, theft, or destruction of a
Right Certificate, of indemnity or security reasonably satisfactory to them and
reimbursement to the Company and the Rights Agent of all reasonable expenses
incidental thereto, and, in case of the mutilation of a Right Certificate, upon
surrender to the Rights Agent and cancellation of the mutilated Right
Certificate, the Company shall make and deliver a new Right Certificate of like
tenor to the Rights Agent for delivery to the registered owner in lieu of the
Right Certificate so lost, stolen, destroyed, or mutilated.
Section 7. Exercise of Rights; Purchase Price; Expiration Date
of Rights. (a) Subject to Section 7(e), the registered holder of any Right
Certificate may exercise the Rights evidenced thereby (except as otherwise
provided herein), in whole or in part, at any time after the Distribution Date
upon surrender of the Right Certificate, with the form of election to purchase
on the reverse side thereof duly executed, to the Rights
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Agent at its principal office or such other office as the Rights Agent may
designate from time to time for that purpose, together with payment of the
aggregate Purchase Price with respect to the total number of Common Shares (or
Preferred Shares or other securities) as to which such surrendered Rights are
being exercised, at or prior to the close of business on the earlier of (i)
October 31, 2007 (the "Final Expiration Date"), or (ii) the date on which the
Rights are redeemed as provided in Section 22 (such earlier date being herein
referred to as the "Expiration Date").
(b) Each Right shall initially represent the right to purchase
one Common Share, subject to adjustment as provided in Section 11. The Purchase
Price for each Common Share upon the exercise of one of the Rights shall
initially be $175.00, subject to adjustment from time to time as provided in
Section 11, and shall be payable in lawful money of the United States of America
in accordance with Section 7(c).
(c) Upon receipt of a Right Certificate representing exercisable
Rights, with the form of election to purchase and the certificate duly executed,
accompanied by payment of the Purchase Price for the Common Shares (or Preferred
Shares or other securities) to be purchased and an amount equal to any
applicable transfer tax, in cash or by certified check or bank draft payable to
the order of the Company, the Rights Agent shall, subject to Section 19(k),
promptly (i) requisition from the Company's transfer agent certificates for the
total number of Common Shares (or Preferred Shares or other securities) to be
purchased, and the Company hereby irrevocably authorizes and directs its
transfer agent to comply with all such requests, (ii) if the Company has elected
to cause the total number of Common Shares (or Preferred Shares or other
securities) issuable upon exercise of the Rights to be deposited with a
depositary agent, requisition
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from the depositary agent depositary receipts representing such number of Common
Shares (or Preferred Shares or other securities) as are to be purchased (in
which case the Company hereby authorizes and directs its transfer agent to
deposit with the depositary agent certificates for the Common Shares (or
Preferred Shares or other securities) represented by such receipts), and the
Company hereby authorizes and directs the depositary agent to comply with all
such requests, (iii) when appropriate, requisition from the Company's transfer
agent certificates for the total number the Common Shares (or Preferred Shares
or other securities) to be purchased in accordance with Section 11(a)(ii), and
the Company hereby authorizes and directs its transfer agent to comply with all
such requests, (iv) when appropriate, requisition from the Company the amount of
cash to be paid in accordance with Section 11(a)(iii) or in lieu of the issuance
of fractional shares in accordance with Section 13, (v) promptly after the
receipt of such certificates or depositary receipts, cause them 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 (vi)
when appropriate, promptly after receipt deliver such cash to or upon the order
of the registered holder of such Right Certificate. In the event the Company is
obligated to issue Common Shares (or Preferred Shares or other securities) or to
pay cash pursuant to Section 11(a)(iii), the Company will make all arrangements
necessary so that such Common Shares (or Preferred Shares or other securities)
and cash are available for issuance and payment by the Rights Agent, as and when
appropriate.
(d) In case the registered holder of any Right Certificate
exercises less than all of the Rights evidenced thereby, a new Right Certificate
evidencing Rights equivalent to the Rights remaining unexercised shall be issued
by the Rights Agent to the
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registered holder of such Right Certificate or to his duly authorized assign,
subject to the provisions of Section 13.
(e) Notwithstanding anything in this Agreement to the contrary,
any Rights that are or were at any time on or after the earlier of the
Distribution Date or the date on which any Person becomes an Acquiring Person
beneficially owned by (i) the Acquiring Person or any Associate or Affiliate of
the Acquiring Person, (ii) a transferee of the Acquiring Person (or of any such
Associate or Affiliate) who becomes a transferee after the Acquiring Person
became an Acquiring Person, or (iii) a transferee of the Acquiring Person (or of
any such Associate or Affiliate) who becomes a transferee prior to or
concurrently with the Acquiring Person becoming an Acquiring Person and who
either (A) holds an equity interest in such Acquiring Person (or any such
Associate or Affiliate) or has any continuing agreement, arrangement, or
understanding with such Acquiring Person (or any such Associate or Affiliate)
regarding the transferred Rights or (B) receives such Rights pursuant to a
transfer that the Board of Directors of the Company has determined is part of a
plan, arrangement, or understanding that has as a primary purpose or effect the
avoidance of this Section 7(e), shall become null and void when such Person
becomes an Acquiring Person, and no holder of such Rights shall have any right
with respect to such Rights under any provision of this Agreement from and after
such Person becomes an Acquiring Person. The Company shall use all reasonable
efforts to insure that the provisions of this Section 7(e) and of Section 4(b)
are complied with, but shall have no liability to any holder of Rights or any
other Person as a result of its failure properly to make any determinations with
respect to an Acquiring Person or its Affiliates, Associates, or transferees in
accordance with this Section 7(e).
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(f) Notwithstanding anything in this Agreement to the contrary,
neither the Rights Agent nor the Company shall be obligated to undertake any
action with respect to a registered holder of Rights upon the occurrence of any
purported exercise as set forth in this Section 7 unless such registered holder
has (i) completed and signed the certificate contained in the form of election
to purchase set forth on the reverse side of the Right Certificate surrendered
for such exercise and (ii) provided such additional evidence of the identity of
the Beneficial Owner or former Beneficial Owner, or the Affiliates or Associates
of the Beneficial Owner or former Beneficial Owner, as the Company may
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 the provisions of this Agreement. The Company shall deliver to the Rights
Agent for cancellation and retirement, and the Rights Agent shall cancel and
retire, any Right Certificate purchased or acquired by the Company otherwise
than upon the exercise of the Right Certificate. The Rights Agent shall deliver
all cancelled Right Certificates to the Company or shall, at the written request
of the Company, destroy such cancelled Right Certificates and deliver a
certificate of destruction thereof to the Company.
Section 9. Reservation and Availability of Shares. (a) The
Company will cause to be reserved and kept available out of Common Shares that
have been authorized by the Company's shareholders but are unissued, or that are
held in the
16
Company's treasury, a number of Common Shares that will be sufficient to permit
the exercise in full of all of the outstanding Rights.
(b) In the event that, notwithstanding Section 9(a), the number
of authorized and unissued Common Shares and Common Shares held in the Company's
treasury is not sufficient to permit the exercise in full of all of the
outstanding Rights, including the exercise in full of all of the outstanding
Rights following any adjustment under Section 11, at any time after the
Distribution Date, the Company shall promptly (i) file an amendment to the
Company's articles of incorporation which creates the Preferred Shares and
authorizes a number of Preferred Shares that, together with authorized and
unissued Common Shares and Common Shares held in the Company's treasury, is
sufficient to permit the exercise in full of all of the outstanding Rights and
(ii) make the Preferred Shares available in place of Common Shares to permit the
exercise of the Rights. Under such circumstances, all rights and obligations of
the Company and the Rights Agent with respect to the Common Shares shall apply
with respect to Preferred Shares.
(c) Unless the Common Shares of the Company have been
theretofore listed on the NYSE or another national securities exchange, the
Company shall, as soon as practicable following the Distribution Date, use its
best efforts to cause transactions in the Rights to be quoted in the National
Association of Securities Dealers Inc. Automated Quotation System ("NASDAQ")
and, if Preferred Shares or other securities are to be made available in place
of Common Shares to be issued upon exercise of the Rights, shall use its best
efforts, as soon as practicable after the Rights become exercisable, to cause
transactions in the Preferred Shares or other securities issuable upon
17
exercise of the Rights to be quoted in NASDAQ. In the event that the Common
Shares are listed on the NYSE or another national securities exchange, the
Company shall use its best efforts to cause, from and after such time as the
Rights become exercisable, all Common Shares (or Preferred Shares or other
securities) reserved for such issuance upon exercise of the Rights to be listed
on the NYSE or such other exchange upon official notice of issuance.
(d) The Company shall (i) prepare and file, as soon as
practicable following the occurrence of a Shares Acquisition Date, a
registration statement under the Securities Act of 1933 (the "Securities Act")
on an appropriate form with respect to the Rights and the securities purchasable
upon exercise of the Rights, (ii) use its best efforts to cause such
registration statement to become effective as soon as practicable after such
filing, and (iii) 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 earlier of the exercise of all of the Rights, the
Expiration Date, or the Final Expiration Date. The Company will also take such
action as may be appropriate to comply with the securities laws of each state in
which holders of the Rights reside. 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 such registration statement. Upon any such suspension, the
Company shall issue a public announcement and notice to the Rights Agent stating
that the exercisability of the Rights has been temporarily suspended, and the
Company shall issue a public announcement and notice to the Rights Agent at such
time as the suspension is no longer in effect. Notwithstanding any provision of
this Agreement to the contrary,
18
the Rights shall not be exercisable in any jurisdiction in which any requisite
registration or qualification has not been obtained or any requisite notice of
exemption has not been filed.
(e) The Company covenants and agrees that it will take all such
action as may be necessary to ensure that all Common Shares (or Preferred Shares
or other securities) delivered upon exercise of Rights are, at the time of
delivery of the certificates therefor (subject to payment of the Purchase Price
or the Exercise Price, as the case may be), duly and validly authorized and
issued, fully paid and nonassessable, freely tradeable, free and clear of any
liens, encumbrances or other adverse claims, and not subject to any rights of
call or first refusal.
(f) The Company further covenants and agrees that it will pay,
when due and payable, any and all federal and state transfer taxes and charges
that may be payable in respect of the issuance, delivery, or transfer of the
Right Certificates or of any Common Shares (or Preferred Shares or other
securities) upon exercise of the Rights. The Company shall not, however, be
required (i) to pay any transfer tax that may be payable in respect of any
transfer or delivery of Right Certificates to a Person other than, or any
issuance, delivery, or transfer of certificates for the Common Shares (or
Preferred Share or other securities, as the case may be) in a name other than
that of, the registered holder of the Right Certificate evidencing the Rights
surrendered for exercise or (ii) to issue or deliver any certificates for a
number of Common Shares (or Preferred Shares or other securities) upon the
exercise of any Rights until any such tax has been paid or until it has been
established to the Company's satisfaction that no such tax is due. Any such tax
shall be payable by the holder of such Right Certificate at the time of
surrender.
19
Section 10. Common Share Record Date. Each Person in whose name
any certificate for a number of Common Shares (or Preferred Shares or other
securities) is issued upon the exercise of Rights shall for all purposes be
deemed to have become the holder of record of such Common Shares (or Preferred
Shares or other securities) represented by such certificate 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 (or Exercise
Price, as the case may be) and any applicable transfer tax was made. Prior to
the exercise of the Rights evidenced thereby, the holder of a Right Certificate
shall not be entitled to any rights of a shareholder of the Company with respect
to shares for which the Rights shall be exercisable, including the right to
vote, to receive dividends or other distributions, or to exercise any preemptive
rights, and shall not be entitled to receive any notice of any proceedings of
the Company, except as provided herein.
Section 11. Adjustment of Purchase Price, and Exercise Price
Number and Type of Shares, or Number of Rights. The Purchase Price and the
Exercise Price, the number and type of shares covered by each of the Rights, and
the number of Rights outstanding is subject to adjustment from time to time as
provided in this Section 11.
(a) (i) In the event the Company at any time after the date of
this Agreement (A) declares a dividend on the Common Shares payable in
Common Shares, (B) subdivides the outstanding Common Shares, (C)
combines the outstanding Common Shares into a smaller number of shares,
or (D) issues any shares other than Common Shares in a reclassification
of the Common Shares
20
(including any such reclassification in connection with a consolidation
or merger in which the Company is the continuing or surviving
corporation), the Purchase Price and the Exercise Price in effect at the
time of the record date for such dividend or of the effective date of
such subdivision, combination, or reclassification, shall be
proportionately adjusted (except as otherwise provided in this Section
11(a) and Section 7(e)) so that the holder of any Rights exercised after
such time shall be required to pay the same aggregate Purchase Price or
Exercise Price, as the case may be, as such holder would be required to
pay if such Rights had been exercised immediately prior to such date,
and the number of Common Shares or the number and kind of shares other
than Common Shares, as the case may be, issuable on such date shall be
proportionately adjusted (except as otherwise provided in this Section
11(a) and Section 7(e)) so that such holder would be entitled to receive
the same aggregate number of Common Shares or the same number and kind
of shares other than Common Shares, as the case may be, that such holder
would have owned and been entitled to receive by virtue of such
dividend, subdivision, combination, or reclassification if such Rights
had been exercised immediately prior to such date. If an event occurs
that would require an adjustment under both Section 11(a)(i) and Section
11(a)(ii), the adjustment provided for in this Section 11(a)(i) shall be
in addition to, and shall be made prior to, any adjustment required
pursuant to Section 11(a)(ii).
(ii) In the event that a Shares Acquisition Date occurs (a
"Flip-in Event"), proper provision shall be made so that, from and after
the close of business on the 20th calendar day after such Flip-in Event
has occurred, each holder of a
21
Right (except as provided in Section 7(e)) shall thereafter have the
right to receive, upon exercise of each of the Rights held by such
holder in accordance with the terms of this Agreement, two Common Shares
for an Exercise Price of $1.00 per Common Share. The number of such
Common Shares and the Exercise Price shall be subject to adjustment as
provided in this Section 11.
(iii) In the event the number of authorized but unissued Common
Shares of the Company and Common Shares held in the Company's treasury
is not sufficient to permit the exercise in full of all of the
outstanding Rights in accordance with paragraph (ii) of this Section
11(a), the Company shall apportion among all of the outstanding Rights,
on a pro rata basis, the Common Shares available for delivery upon
exercise of the Rights and, upon exercise of each Right, shall deliver
to the holder thereof (A) the number or fraction of Common Shares
apportioned to the Right and (B) the number or fraction of Preferred
Shares equal to the balance of the Common Shares otherwise deliverable
to the holder upon exercise of the Right. If the number of Common Shares
and Preferred Shares that are authorized and unissued or held in the
Company's treasury is not sufficient to permit the exercise in full of
all of the outstanding Rights, the Company shall apportion among all of
the outstanding Rights, on a pro rata basis, the Common Shares and
Preferred Shares available for delivery upon exercise of the Rights and,
upon exercise of each Right, shall deliver to the holder thereof (x) the
number or fraction of Common Shares and Preferred Shares apportioned to
the Right and (y) cash in an amount equal to the product of the balance
of the Common Shares otherwise deliverable to the holder upon exercise
of the Right multiplied by the
22
excess of the market price per Common Share at the close of business on
the 20th calendar day following the occurrence of the Flip-in Event over
the Exercise Price, as adjusted pursuant to the provisions of this
Section 11. To the extent any legal or contractual restrictions prevent
the Company from paying the full amount of the cash payable in
accordance with the foregoing sentence, the Company shall pay to holders
of the Rights on a pro rata basis all of the funds that are not then
restricted. The Company shall continue to make payments to holders of
the Rights on a pro rata basis as funds become available until such
amount has been paid in full.
(b) In case the Company fixes a record date for the issuance of
rights or warrants to all holders of Common Shares entitling them (for a period
expiring within 45 calendar days after such record date) to subscribe for or
purchase Common Shares (or shares having the same rights, privileges, and
preferences as the Common Shares ("equivalent common shares") or securities
convertible into Common Shares or equivalent common shares) at a price per
Common Share or per equivalent common share (or having a conversion price per
share, if a security convertible into Common Shares or equivalent common shares)
less than the current market price (as defined in Section 11(d)) per Common
Share on such record date, the Purchase Price and the Exercise Price to be in
effect after such record date shall be determined by multiplying the Purchase
Price and the Exercise Price in effect immediately prior to such record date by
a fraction the numerator of which is the number of Common Shares outstanding on
such record date plus the number of Common Shares that the aggregate offering
price of the total number of Common Shares or equivalent preferred shares so to
be offered (or the aggregate initial
23
conversion price of the convertible securities so to be offered) would purchase
at such market price and the denominator of which is the number of Common Shares
outstanding on such record date plus the number of additional Common Shares or
equivalent common shares to be offered for subscription or purchase (or into
which the convertible securities so to be offered are initially convertible). In
case any part of such subscription price is paid 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. Common 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 such rights or warrants are not so issued, the
Purchase Price and the Exercise Price shall be adjusted to be the Purchase Price
and the Exercise Price that would then be in effect if such record date had not
been fixed.
(c) In case the Company fixes a record date for the making of a
distribution to all holders of Common Shares (including any such distribution
made in connection with a consolidation or merger in which the Company is the
continuing or surviving corporation) or evidences of indebtedness or assets
(other than a regular periodic cash dividend at a rate per share not in excess
of 150% of the last quarterly cash dividend per share theretofore paid or a
dividend payable in Common Shares, but including any dividend payable in shares
other than Common Shares) or subscription rights or warrants (excluding those
referred to in Section 11(b)), the Purchase Price and the Exercise Price to be
in effect after such record date shall be determined by multiplying the Purchase
Price and the Exercise Price in effect immediately prior to such record date by
a fraction the
24
numerator of which is the market price (as defined in Section 11(d)) per Common
Share on such record date, less the fair market value (as determined in good
faith by the Board of Directors of the Company, whose determination shall be
described in a statement filed with the Rights Agent) of the portion of the
assets (in the case of regular periodic cash dividends at a rate per share in
excess of 150% of the last quarterly cash dividend per share theretofore paid,
only that portion in excess of 150% of such quarterly cash dividend per share)
or evidences of indebtedness so to be distributed or of such subscription rights
or warrants applicable to one Common Share and the denominator of which shall be
such market price per Common Share. Such adjustments shall be made successively
whenever such a record date is fixed, and, in the event such distribution is not
so made, the Purchase Price and the Exercise Price shall be adjusted to be the
Purchase Price and the Exercise Price that would then be in effect if such
record date had not been fixed.
(d) For the purpose of any computation under Section 11(a), (b),
or (c) hereof, the "market price" of a Common Share on any date of determination
shall be deemed to be the average of the daily closing prices per Common Share
for the 30 consecutive Trading Days (as such term is hereinafter defined)
immediately prior to such date, except that, in the event the "market price" per
Common Share is determined during the period following the announcement by the
issuer of such Common Share of (A) a dividend or distribution on such Common
Share payable in Common Shares or securities convertible into Common Shares or
(B) any subdivision, combination, or reclassification of such Common Shares and
prior to the expiration of 30 Trading Days after the ex-dividend date for such
dividend or distribution or the record date for such subdivision, combination,
or reclassification, the "market price" shall, in each such case, be
25
appropriately adjusted to take into account ex-dividend trading. The closing
price for each day shall be the last sale price, regular way, or, in case no
such sale takes place on such day, the average of the closing bid and asked
prices, regular way, in either case as reported in the principal consolidated
transaction reporting system with respect to securities listed or admitted to
trading on the NYSE or, if the Common Shares are not listed or admitted to
trading on the NYSE, as reported in the principal consolidated transaction
reporting system with respect to securities listed on the principal national
securities exchange on which the Common Shares are listed or admitted to trading
or, if the Common Shares are not listed or admitted to trading on any national
securities exchange, the last quoted sale price or, if no sale price is quoted,
the average of the high bid and low asked prices in the over-the-counter market,
as reported by NASDAQ or such other system then in use or, if on any such date
the Common Shares are not reported by NASDAQ or such other system, the average
of the closing bid and asked prices as furnished by a professional market maker
making a market in the Common Shares selected by the Board of Directors of the
Company, except that if on any such date no market maker is making a market in
the Common Shares the closing price on such date shall be the value of a Common
Share on such date as determined in good faith by the Board of Directors, whose
determination shall be described in a statement filed with the Rights Agent. The
term "Trading Day" shall mean a day on which the principal national securities
exchange on which the Common Shares are listed or admitted to trading is open
for the transaction of business or, if the Common Shares are not listed or
admitted to trading on any national securities exchange, a Business Day. If the
Common Shares are not publicly held or not so listed or traded, "market price"
per Common Share shall mean the value per Common Share as determined
26
in good faith by the Board of Directors, whose determination shall be described
in a statement filed with the Rights Agent.
(e) No adjustment in the Purchase Price and the Exercise Price
shall be required unless such adjustment would require an increase or decrease
of at least 1% in the Purchase Price and the Exercise Price, except that any
adjustments that by reason of this Section 11(e) are not required to be made
shall be carried forward and taken into account in any subsequent adjustment.
All calculations under this Section 11 shall be made to the nearest cent or to
the nearest ten-thousandth of a Common Share, 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 that mandates such adjustment and (ii)
the date of the expiration of the right to exercise any of the Rights.
(f) If, as a result of an adjustment made pursuant to Section
11(a), the holder of any of the Rights exercised after such adjustment becomes
entitled to receive upon exercise of the Rights any shares of the Company other
than Common Shares, the number of such other shares so receivable 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 Common Shares
contained in Section 11, and the provisions of Sections 7, 9, 10, and 13 with
respect to the Common Shares shall apply on like terms to any such other shares.
(g) All Rights originally issued by the Company subsequent to any
adjustment made to the Purchase Price and the Exercise Price shall evidence the
right to purchase, at the adjusted Purchase Price and (at the close of business
on the 20th calendar day following the occurrence of a Shares Acquisition Date)
the adjusted Exercise Price, the
27
number of Common Shares purchasable from time to time upon exercise of the
Rights, all subject to further adjustment as provided in this Agreement.
(h) Upon each adjustment of the Purchase Price and the Exercise
Price as a result of the calculations made in Sections 11(b) and (c), each of
the Rights outstanding immediately prior to the making of such adjustment shall,
unless the Company has exercised its election as provided in Section 11(i),
thereafter evidence the right to purchase, at the adjusted Purchase Price or the
adjusted Exercise Price, as the case may be, that number of Common Shares
(calculated to the nearest ten-thousandth) obtained by (i) multiplying (x) the
number of Common Shares purchasable upon exercise of one of the Rights
immediately prior to this adjustment by (y) the Purchase Price or the Exercise
Price, as the case may be, in effect immediately prior to such adjustment and
(ii) dividing the product so obtained by the Purchase Price or the Exercise
Price, as the case may be, in effect immediately after such adjustment.
(i) The Company may elect, on or after the date of any adjustment
of the Purchase Price and the Exercise Price, to adjust the number of Rights, in
substitution for any adjustment in the number of Common Shares purchasable upon
the exercise of one of the Rights. Each of the Rights outstanding after such
adjustment of the number of Rights shall be exercisable for the number of Common
Shares for which one of the Rights was exercisable immediately prior to such
adjustment. Each of the Rights held of record prior to such adjustment of the
number of Rights shall become that number of Rights (calculated to the nearest
ten-thousandth) obtained by dividing the Purchase Price and the Exercise Price
in effect immediately prior to the adjustment by the Purchase Price and the
Exercise Price in effect immediately after the adjustment. The Company shall
make a
28
public announcement of its election to adjust the number of Rights, indicating
the record date for the adjustment to be made. This record date may be the date
on which the Purchase Price and the Exercise Price are adjusted or any day
thereafter but, if the Right Certificates have been issued, shall be at least 10
days later than the date of the public announcement. If Right Certificates have
been issued, the Company shall, upon each adjustment of the number of Rights
pursuant to this Section 11(i) and as promptly as practicable, cause to be
distributed to holders of Right Certificates on such record date Right
Certificates evidencing, subject to Section 13, the additional Rights to which
such holders are entitled as a result of such adjustment or, at the option of
the Company, shall cause to be distributed to such holders of record in
substitution and replacement for the Right Certificates held by such holders
prior to the date of adjustment, and upon surrender thereof if required by the
Company, new Right Certificates evidencing all the Rights to which such holders
are entitled after such adjustment. Right Certificates so to be distributed
shall be issued, executed, and countersigned in the manner provided for in this
Agreement (and may bear, at the option of the Company, the adjusted Purchase
Price and the adjusted Exercise Price) and shall be registered in the names of
the holders of record of Right Certificates on the record date specified in the
public announcement.
(j) Notwithstanding any adjustment or change in the Purchase
Price and the Exercise Price or the number of Common Shares issuable upon the
exercise of the Rights, the Rights Certificates theretofore and thereafter
issued may continue to express the Purchase Price and the Exercise Price per
Common Share and the number of Common Shares that were expressed in the initial
Right Certificates issued under this Agreement.
29
(k) Before taking any action that would cause an adjustment
reducing the Purchase Price or the Exercise Price below the then stated capital,
if any, of a Common Share issuable upon exercise of the Rights, the Company
shall take any corporate action that may, in the opinion of its counsel, be
necessary in order that the Company may validly and legally issue fully paid and
nonassessable Common Shares at such adjusted Purchase Price or such adjusted
Exercise Price.
(l) In any case in which this Section 11 requires that an
adjustment in the Purchase Price and the Exercise Price be made effective as of
a record date for a specified event, the Company may elect to defer until the
occurrence of such event the issuing to the holder of any Rights exercised after
such record date the number of Common Shares (or Preferred Shares or other
securities) issuable upon such exercise over and above the number of Common
Shares (or Preferred Shares or other securities) issuable upon such exercise on
the basis of the Purchase Price or the Exercise Price, as the case may be, in
effect prior to such adjustment, except that the Company shall deliver to such
holder a due xxxx or other appropriate instrument evidencing such holder's right
to receive such additional Common Shares (or Preferred Shares or other
securities) upon the occurrence of the event requiring such adjustment.
(m) Anything in this Section 11 to the contrary notwithstanding,
the Company shall be entitled to make such reduction in the Purchase Price and
the Exercise Price, in addition to those adjustments expressly required by this
Section 11, as and to the extent that the Board of Directors of the Company in
its discretion determines to be advisable.
30
Section 12. Certificates of Adjusted Purchase Price or Number of
Shares. Whenever an adjustment is made as provided in Sections 11 and 13, the
Company shall promptly (a) prepare a certificate setting forth such adjustment
and a brief statement of the facts accounting for such adjustment, (b) file with
the Rights Agent and with each transfer agent for the Common Shares a copy of
such certificate, and (c) mail a brief summary thereof to each holder of a Right
Certificate (or, if prior to the Distribution Date, to each holder of a
certificate representing Common Shares) in accordance with Section 25. The
Rights Agent shall be fully protected in relying on any such certificate and on
any adjustment contained in such certificate.
Section 13. Fractional Rights and Fractional Shares. (a) Prior to
the occurrence of a Shares Acquisition Date, the Company shall not be required
to issue fractions of Rights or to distribute Right Certificates that evidence
fractional Rights. In lieu of such fractional Rights, the Company may pay 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 market value of one of the Rights. For the purposes of this
Section 13(a), the market value of one of the Rights shall be the closing price
of the Rights for the Trading Day immediately prior to the date on which such
fractional Rights would have been otherwise issuable. The closing price for any
day shall be the last sale price, regular way, or, in case no such sale takes
place on such day, the average of the closing bid and asked prices, regular way,
in either case as reported in the principal consolidated transaction reporting
system with
31
respect to securities listed or admitted to trading on the NYSE or, if the
Rights are not listed or admitted to trading on the NYSE, as reported in the
principal consolidated transaction reporting system with respect to securities
listed on the principal national securities exchange on which the Rights are
listed or admitted to trading or, if the Rights are not listed or admitted to
trading on any national securities exchange, the last quoted sale price or, if
no sale price is quoted, the average of the high bid and low asked prices in the
over-the-counter market, as reported by NASDAQ or such other system then in use
or, if on any such date the Rights are not quoted by NASDAQ or any such other
system, the average of the closing bid and asked prices as furnished by a
professional market maker making a market in the Rights selected by the Board of
Directors of the Company. If on any such date no such market maker is making a
market in the Rights, the market value of one of the Rights shall be the value
of the Rights on such date as determined in good faith by the Board of
Directors, whose determination shall be described in a statement filed with the
Rights Agent.
(b) The Company shall not be required to issue fractions of a
Common Share upon exercise of the Rights or to distribute certificates that
evidence fractional Common Shares. In lieu of fractional shares, the Company may
pay to the registered holders of Right Certificates at the time such Right
Certificates are exercised an amount in cash equal to the same fraction of the
market price of a Common Share on the date of exercise. For purposes of this
Section 14(b), the market price of a Common Share shall be determined in
accordance with Section 11(d).
(c) The holder of Rights by the acceptance of the Rights
expressly waives his right to receive any fractional Rights or any fractional
Common Shares upon exercise of the Rights.
Section 14. Rights of Action. All rights of action in respect of
this Agreement are vested in the respective registered holders of the Right
Certificates (and,
32
prior to the Distribution Date, the registered holders of the Common Shares);
and any registered holder of any Right Certificate (or, prior to the
Distribution Date, of the Common Shares), without the consent of the Rights
Agent or of the holder of any other Right Certificate (or, prior to the
Distribution Date, of any other Common Shares), may, in his own behalf and for
his own benefit, enforce, and may institute and maintain any suit, action, or
proceeding against the Company to enforce, or otherwise act in respect of, his
right to exercise the Rights evidenced by such Right Certificate. 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, and injunctive relief against actual or threatened violations
of, the obligations of any Person subject to this Agreement.
Section 15. Agreement of Rights Holders. Holders of the Rights by
accepting the Rights consent and agree with the Company and the Rights Agent and
with other holders of Rights that:
(a) prior to the Distribution Date, the Rights will be
transferable only in connection with the transfer of the Common Shares;
(b) after the Distribution Date, the Right Certificates will be
transferable only on the registry books of the Rights Agent if surrendered at
the principal office of the Rights Agent or such other office as the Rights
Agent may designate from time to time for that purpose, duly endorsed or
accompanied by a proper instrument of transfer and with the appropriate forms
and certificates fully executed; and
33
(c) the Company and the Rights Agent may, subject to Section
6(a), Section 7(e), and Section 7(f), deem and treat the Person in whose name
the Right Certificate (or, prior to the Distribution Date, the associated Common
Share certificate) is registered as the absolute owner of such Right Certificate
and of the Rights evidenced thereby (notwithstanding any notations of ownership
or writing on the Right Certificates or the associated Common Share certificate
made by anyone other than the Company or the Rights Agent) for all purposes
whatsoever, and neither the Company nor the Rights Agent shall be required to be
affected by any notice to the contrary.
Section 16. Right Certificate Holder Not Deemed a Shareholder. No
holder, as such, of any Right Certificate shall be entitled to vote, receive
dividends, or be deemed for any purpose the holder of the number of Common
Shares (or Preferred Shares or other securities) that may at any time be
issuable on the exercise of the Rights represented thereby, nor shall anything
contained in this Agreement or in any Right Certificate be construed to confer
upon the holder of any Right Certificate, as such, any of the rights of a
shareholder of the Company or any right to vote in the election of directors or
upon any matter submitted to shareholders at any meeting thereof, to give or
withhold consent to any corporate action, to receive notice of meetings or other
actions affecting shareholders (except as provided in Section 23), to receive
dividends or subscription rights, or otherwise, until the Rights evidenced by
such Right Certificate have been exercised in accordance with the provisions of
this Agreement.
Section 17. Concerning the Rights Agent. (a) The Company agrees
to pay to the Rights Agent reasonable compensation for all services rendered by
it under this Agreement and, from time to time on demand of the Rights Agent, to
reimburse it for
34
or pay its reasonable expenses and counsel fees and other disbursements incurred
in the administration and execution of this Agreement and the exercise and
performance of its duties under this Agreement. The Company also agrees to
indemnify the Rights Agent for, and to hold it harmless against, any loss,
liability, or expense incurred without negligence, bad faith, or willful
misconduct on the part of the Rights Agent as a result of anything done or
omitted to be done by the Rights Agent in connection with the acceptance and
administration of this Agreement, including the costs and expenses of defending
against any claim of liability in the premises.
(b) The Rights Agent shall be protected and shall incur no
liability for or in respect of any action taken, suffered, or omitted by it in
connection with its administration of this Agreement in reliance upon any Right
Certificate or certificate for Common Shares or for other securities of the
Company, instrument of assignment or transfer, power of attorney, endorsement,
affidavit, letter, notice, direction, consent, certificate, statement, or other
paper or document believed by it to be genuine and to be signed, executed, and,
if necessary, verified or acknowledged by the proper person or persons.
Section 18. Merger or Consolidation or Change of Name of Rights
Agent. (a) Any corporation into which the Rights Agent or any successor Rights
Agent may be merged or with which it may be consolidated, any corporation
resulting from any merger or consolidation to which the Rights Agent or any
successor Rights Agent is a party, or any corporation succeeding to the
corporate trust business of the Rights Agent or any successor Rights Agent shall
be the successor to the Rights Agent under this Agreement without the execution
or filing of any paper or any further act on the part of any
35
of the parties to this Agreement, provided such corporation is eligible for
appointment as a successor Rights Agent under the provisions of Section 20. In
case at the time such successor Rights Agent succeeds to the agency created by
this Agreement any of the Right Certificates have been countersigned but not
delivered, any such successor Rights Agent may adopt the countersignature of the
predecessor so countersigned; in case at that time any of the Right Certificates
have not 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 is changed
and at such time any of the Right Certificates have been countersigned but not
delivered, the Rights Agent may adopt the countersignature under its prior name
and deliver Right Certificates so countersigned; in case at that time any of the
Right Certificates have not 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 19. Duties of Rights Agent. The Rights Agent undertakes
the duties and obligations imposed by this Agreement upon the following terms
and conditions, by all of which the Company and the holders of Right
Certificates, by their acceptance of the Right Certificates, shall be bound:
(a) The Rights Agent may consult with legal counsel, and the
opinion of such counsel shall be full and complete authorization and
protection to the Rights Agent as to any action taken or omitted by it in
good faith and in
36
accordance with such opinion, regardless of whether such counsel is also
counsel to the Company.
(b) Whenever in the performance of its duties under this Agreement
the Rights Agent deems 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
of such fact or matter is specifically prescribed in this Agreement) may
be deemed to be conclusively proved and established by a certificate
signed by any one of the Chairman of the Board, the President, any Vice
President, the Treasurer, or the Secretary of the Company and delivered
to the Rights Agent; and such certificate shall be full authorization to
the Rights Agent for any action taken 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 under this Agreement only for
its own negligence, bad faith, or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any
of the statements of fact or recitals contained in this Agreement or in
the Right Certificates (except its countersignature thereof) or be
required to verify such statements or recitals, but all such statements
and recitals are and shall be deemed to have been made only by the
Company.
(e) The Rights Agent shall not be under any responsibility in
respect of the validity of this Agreement or the execution and delivery
of this Agreement (except the due execution of this Agreement by the
Rights Agent) or in respect of the validity or execution of any Right
Certificate (except the
37
countersignature of the Right Certificates by the Rights Agent); nor
shall it be responsible for any breach by the Company of any covenant or
condition contained in this Agreement or in any Right Certificate; nor
shall it be responsible for any adjustment required under the provisions
of Section 11 or responsible for the manner, method, or amount of any
such adjustment or the ascertaining of the existence of facts that would
require any such adjustment (except with respect to the exercise of
Rights evidenced by Right Certificates after actual notice of any such
adjustment); nor shall it by any act hereunder be deemed to make any
representation or warranty as to the authorization or reservation of any
Common Shares or Preferred Shares to be issued pursuant to this Agreement
or any Right Certificate or as to whether any Common Shares or Preferred
Shares 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 under this
Agreement from any one of the Chairman of the Board, the Chief Executive
Officer, the President, any Vice President, the Treasurer, or the
Secretary of the Company and to apply to such officers for advice or
instructions in connection with its duties,
38
and it shall not be liable for any action taken or suffered to be taken
by it in good faith in accordance with any such instructions.
(h) The Rights Agent and any shareholder, director, officer, or
employee of the Rights Agent may buy, sell, or deal in any of the Rights
or other securities of the Company, become pecuniarily interested in any
transaction in which the Company may be interested, contract with or lend
money to the Company, or otherwise act as fully and freely as though it
were not the Rights Agent under this Agreement. Nothing in this Agreement
shall preclude the Rights Agent from acting in any other capacity for the
Company or for any other Person.
(i) The Rights Agent may execute and exercise any of the rights or
powers vested in it by this Agreement or perform any duty under this
Agreement 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 attorney or agent 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 of such attorney or agent.
(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 or in the exercise of
its rights under this Agreement if there are reasonable grounds for
believing that the repayment of such funds, or adequate indemnification
against such risk or liability, is not reasonably assured to it.
39
(k) If, with respect to any Right Certificate surrendered to the
Rights Agent for exercise or transfer, the certificate attached to the
form of assignment or form of election to purchase, as the case may be,
has either not been completed or indicates an affirmative response to
clause 1 or 2 of such certificate, the Rights Agent shall not take any
further action with respect to such requested exercise or transfer
without first obtaining instructions from the Company, as provided in
Section 19(g).
Section 20. 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 the Common Shares by registered or certified mail and to the
holders of the Right Certificates by first class mail. If the Rights Agent
resigns, is removed or otherwise becomes incapable of acting, the Company shall
appoint a successor to the Rights Agent. If the Company fails to make such
appointment within a period of 30 days after giving notice of such removal or
after it has been notified in writing of such registration or incapacity by the
resigning or incapacitated Rights Agent or by the holder of any of the Rights
(who shall, with such notice, submit his Right Certificate for inspection by the
Company), then the registered holder of any Right may apply to any court of
competent jurisdiction for the appointment of a successor Rights Agent. Any
successor Rights Agent, whether appointed by the Company or by such a court,
shall be a corporation organized and doing business under the laws of the United
States or of any state of the United States so long as such corporation is
authorized to do business as a banking institution, is in good standing, is
authorized to exercise corporate trust powers, is subject to supervision or
examination by
40
federal or state authorities, and has at the time of its appointment as Rights
Agent a combined capital and surplus of at least $50 million. After appointment,
the successor Rights Agent shall be vested with the same powers, rights, duties,
and 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 under this
Agreement 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 of the appointment in writing with
the predecessor Rights Agent and each transfer agent of the Common Shares.
Failure to give any notice provided for in this Section 20 or any defect in such
notice shall, however, 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 21. Issuance of New Right Certificates. Notwithstanding
any of the provisions of this Agreement or of the Right Certificates 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 of
the Company to reflect any adjustment or change in the Purchase Price and the
Exercise Price, in the number, kind, or class of shares or other securities or
property purchasable upon exercise of the Rights, or in any other provision of
this Agreement made in accordance with Section 11, Section 25, or any other
provision of this Agreement.
Section 22. Redemption. (a) The Board of Directors of the Company
may, at its option, at any time prior to the earlier of (i) the close of
business on the 20th calendar day following the occurrence of a Shares
Acquisition Date or (ii) the
41
close of business on the Final Expiration Date, redeem all but not less than all
of the Rights then outstanding at a redemption price of $.01 for each of the
Rights, adjusted to reflect any stock split, stock dividend, or similar
transaction occurring after the date of this Agreement (such redemption price
being hereinafter referred to as the "Redemption Price"). Notwithstanding
anything contained in this Agreement to the contrary, the Rights shall not be
exercisable upon the occurrence of a Flip-in Event pursuant to Section 11(a)(ii)
prior to the expiration of the Company's right of redemption pursuant to this
Section 22(a).
(b) Immediately upon the action of the Board of Directors of the
Company ordering the redemption of the Rights, and without any further action
and without any notice, the right to exercise the Rights shall terminate and the
only right thereafter of the holders of Rights shall be to receive the
Redemption Price. Within 10 days after the action of the Board of Directors
ordering the redemption of the Rights, the Company shall give notice of such
redemption to the holders of the then outstanding Rights by mailing such notice
to each such holder at the last address of such holder as it appears upon the
registry books of the Rights Agent or, prior to the Distribution Date, on the
registry books of the Transfer Agent for the Common Shares. Any notice that 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. Neither the
Company nor any of its Affiliates or Associates may redeem, acquire, or purchase
for value any Rights at any time in any manner other than as specifically set
forth in this Section 22 or in connection with the repurchase of Common Shares
prior to the Distribution Date.
42
Section 23. Notice of Certain Events. In case the Company
proposes at any time following the Distribution Date (a) to pay any dividend
payable in shares of any class to the holders of Common Shares or to make any
other distribution to the holders of Common Shares (other than a regular
periodic cash dividend at a rate per share not in excess of 150% of the last
cash quarterly dividend per share theretofore paid), (b) to offer to the holders
of Common Shares rights or warrants to subscribe for or to purchase any
additional Common Shares, shares of any other class, or any other securities,
rights, or options, (c) to effect any reclassification of the Common Shares
(other than a reclassification involving only the subdivision of outstanding
Common Shares), (d) to effect any transaction which would constitute a Flip-over
Event, or (e) to effect the liquidation, dissolution, or winding up of the
Company, the Company shall, in each such case, give to each holder of Rights, in
accordance with Section 24, a notice of such proposed action specifying the
record date for the purposes of such dividend or distribution, or the date on
which such reclassification, consolidation, merger, sale, transfer, liquidation,
dissolution, or winding up is to take place and the date of participation
therein by the holders of the Common Shares, if any such date is to be fixed.
Such notice shall be so given, in the case of any action described in clause (a)
or (b) above, at least 20 days prior to the record date for determining holders
of the Common Shares for purposes of such action and, in the case of any such
other action, at least 20 days prior to the date of the taking of such proposed
action or the date of participation therein by the holders of the Common Shares,
whichever is the earlier. In case any of the events set forth in Section
11(a)(ii) of this Agreement occurs, the Company shall, in any such case, as soon
as practicable thereafter give to each holder of Rights, in accordance with
Section 24, a
43
notice of the occurrence of such event specifying the event and the consequences
of the event to holders of Rights under Section 11(a)(ii).
Section 24. 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
personally delivered or sent by first-class mail, postage prepaid, addressed
(until another address is filed in writing with the Rights Agent) as follows:
Nordson Corporation
00000 Xxxxxxx Xxxx
Xxxxxxxx, Xxxx 00000
Attention: General Counsel
Subject to the provisions of Section 20, 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
personally delivered or sent by first-class mail, postage prepaid, addressed
(until another address is filed in writing with the Company) as follows:
National City Bank
Corporate Trust Administration
000 Xxxxxx Xxxxxx, Xx. 000
Xxxxxxxxx, Xxxx 00000
Attention: Xx. Xxxxxx Xxxxxxxx
Notices or demands authorized by this Agreement to be given or made by the
Company or the Rights Agent to or on the holder of any Right Certificate shall
be sufficiently given or made if personally delivered or 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.
44
Section 25. Supplements and Amendments. The Company may from time
to time, with the approval of its Board of Directors, supplement or amend this
Agreement without the approval of any holders of Rights in order (i) to cure any
ambiguity, (ii) to correct or supplement any provision contained in this
Agreement that may be defective or inconsistent with any other provision in this
Agreement, and (iii), prior to the close of business on the 20th calendar day
following the occurrence of a Shares Acquisition Date, to make any other change
in the provisions of this Agreement that the Board of Directors of the Company
deems to be consistent with the purposes of this Agreement and not adverse to
the interests of the Company and its shareholders. Upon the delivery of a
certificate from an appropriate officer of the Company that states that the
proposed supplement or amendment is in compliance with the terms of this Section
25, the Rights Agent shall execute such supplement or amendment unless the
Rights Agent determines in good faith that such supplement or amendment would
adversely affect its interests under this Agreement. Notwithstanding anything to
the contrary in this Agreement, prior to the close of business on the 20th
calendar day following the occurrence of a Shares Acquisition Date, the
interests of the holders of Rights shall be deemed to be coincident with the
interests of the holders of Common Shares.
Section 26. 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.
Section 27. Determinations and Actions by the Board of Directors,
etc. For all purposes of this Agreement, any calculation of the number of Common
Shares outstanding at any particular time, including the purpose of determining
the particular
45
percentage of such outstanding Common Shares of which any Person is the
Beneficial Owner, shall be made in accordance with the provisions of Rule
13d-3(d)(1)(i) of the General Rules and Regulations under the Exchange Act, as
in effect on the date of this Agreement. The Board of Directors of the Company
shall have the exclusive power and authority to administer this Agreement and to
exercise all rights and powers specifically granted to the Board of Directors or
the Company or as may be necessary or advisable in the administration of this
Agreement, including the right and power (i) to interpret the provisions of this
Agreement and (ii) to make all determinations deemed necessary or advisable for
the administration of this Agreement. All such actions, calculations,
interpretations, and determinations (including, for the purpose of clause (ii)
below, all omissions with respect to the foregoing) that are done or made by the
Board of Directors in good faith shall (i) be final, conclusive, and binding on
the Company, the Rights Agent, the holders of Right Certificates, and all other
parties and (ii) not subject the Board of Directors to any liability to the
holders of Right Certificates.
Section 28. 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 Rights (and, prior to the Distribution
Date, the registered holders of Common Shares) 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 Rights (and, prior to the Distribution Date, the registered holders
of Common Shares).
Section 29. Severability. If any term, provision, covenant, or
restriction of or in this Agreement is held by a court of competent jurisdiction
or other
46
authority to be invalid, void, or unenforceable, the remainder of the terms,
provisions, covenants, and restrictions of or in this Agreement shall remain in
full force and effect and shall in no way be affected, impaired, or invalidated,
except that, notwithstanding anything in this Agreement to the contrary, if any
such term, provision, covenant, or restriction is held by such court or
authority to be invalid, void, or unenforceable and the Board of Directors of
the Company determines in its good faith judgment that severing the invalid
language from this Agreement would adversely affect the purpose or effect of
this Agreement, the right of redemption set forth in Section 22 hereof shall be
reinstated and shall not expire until the close of business on the 20th day
following the date of such determination by the Board of Directors.
Section 30. Governing Law. This Agreement and each Right
Certificate issued under it shall be deemed to be a contract made under the laws
of the State of Ohio and for all purposes shall be governed by and construed in
accordance with the laws of such State applicable to contracts to be made and
performed entirely within such State.
Section 31. Counterparts. This Agreement may be executed in any
number of counterparts, and each such counterpart shall for all purposes be
deemed to be an original, and all such counterparts shall together constitute
but one and the same instrument.
Section 32. Descriptive Headings. Descriptive headings of the
Sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions of this
Agreement.
47
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed as of the day and year first above written.
NORDSON CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxxx
---------------------------------
Title: Secretary
-----------------------------------
NATIONAL CITY BANK
As Rights Agent
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
---------------------------------
Title: Officer
--------------------------------
48
Exhibit A
"EXPRESS" TERMS OF SERIES B CONVERTIBLE PREFERRED SHARES
A series of Serial Preferred Shares is created with the following
"express" terms:
A. Designation. The shares of such series are designated as
"Series B Convertible Preferred Shares" without par value; (the "Series B
Preferred Shares").
B. Authorized Number of Shares; Fractional Shares. The authorized
number of Series B Preferred Shares is ______________. Series B Preferred
Shares may be issued in fractions of a share that shall entitle the
holder, in proportion to such holder's fractional shares, to exercise
voting rights, receive dividends, participate in distributions, and have
the benefit of all other rights of holders of Series B Preferred Shares.
C. Dividends and Distributions.
(1) Dividends and other distribution shall be declared and paid on
the Series B Preferred Shares at the same time that dividends or other
distributions are declared and paid on the Common Shares. The amount per
share and kind of the dividends or other distributions on the Series B
Preferred Shares shall be the same as the amount per share and kind of
the dividends or other distributions on the Common Shares.
(2) Dividends on Series B Preferred Shares shall not accrue or be
cumulative.
D. Conversion. Each Series B Preferred Share is convertible, at
the option of the holder, into one Common Share, provided that, at the
time of conversion, there is a sufficient number of authorized but
unissued Common Shares, or Common Shares held in the Company's treasury,
to permit the conversion of all Series B Preferred Shares then
outstanding.
Liquidation, Dissolution, or Winding Up.
Upon liquidation, dissolution, or winding up of the Company,
holders of Series B Preferred Shares shall have the same rights and shall
be treated the same as holders of Common Shares with respect to
distributions by the Company.
E. Conversion on Merger, Consolidation, etc. In case the Company
enters into any merger, consolidation, combination, or other transaction
in which Common Shares are exchanged or changed into other shares or
securities, cash, or other property, each Series Preferred Share shall in
any such case at the same time be similarly exchanged or changed in an
amount per share equal to the aggregate amount of shares, securities,
cash, or
A-1
other property (payable in kind), as the case may be, into which or for
which each Common Share is changed or exchanged.
F. Redemption. The outstanding Series B Preferred Shares shall not
be redeemable.
G. Voting Rights. Each holder of Series B Preferred Shares shall
be entitled to one vote for each share held and, except as otherwise
provided by law, the holders of Series B Preferred Shares and the holders
of Common Shares shall vote together as one class.
A-2
Exhibit B
FORM OF RIGHT CERTIFICATE
Certificate No. R - ___________________ Rights
NOT EXERCISABLE AFTER OCTOBER 31, 2007, OR EARLIER IF NOTICE OF
REDEMPTION IS GIVEN. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE
OPTION OF THE COMPANY, AT $.01 FOR EACH OF THE RIGHTS ON THE TERMS SET
FORTH IN THE RESTATED RIGHTS AGREEMENT. [THE RIGHTS REPRESENTED BY THIS
CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR
BECAME AN ACQUIRING PERSON OR AN ASSOCIATE OR AFFILIATE OF AN ACQUIRING
PERSON (AS SUCH TERMS ARE DEFINED IN THE RESTATED RIGHTS AGREEMENT).
ACCORDINGLY, THIS RIGHTS CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY
MAY BECOME NULL AND VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION 7(e)
OF THE RESTATED RIGHTS AGREEMENT.] *
RIGHT CERTIFICATE
This certifies that _____________, or registered assigns, is the
registered owner of the number of Rights set forth above, each of which entitles
the owner thereof, subject to the terms, provisions, and conditions of the
Second Restated Rights Agreement dated as of May 21, 2003 (the "Restated Rights
Agreement"), between Nordson Corporation, an Ohio corporation (the "Company"),
and National City Bank, a national banking association organized and existing
under the laws of the United States, (the "Rights Agent"), to purchase from the
Company at any time after the Distribution Date (as such term is defined in the
Restated Rights Agreement) and prior to 5:00 P.M. Cleveland time, on October 31,
2007, at the principal office of the Rights Agent, or of its successor as Rights
Agent, or at such other office as the Rights Agent or its successor may
designate from time to time for that purpose, one fully paid and non-assessable
Common Share with a par value of
--------
* The portion of the legend in brackets shall be inserted only if applicable.
B-1
$1.00 (the "Common Shares") of the Company, at a purchase price of $175 per
Common Share (the "Purchase Price"), upon presentation and surrender of this
Right Certificate with the Form of Election to Purchase duly executed. The
number of Rights evidenced by this Right Certificate, the number of Common
Shares that may be purchased upon exercise of the Rights, and the Purchase Price
per Common Share set forth above, are the numbers and Purchase Price as of
October 31, 1997, based on the Common Shares as constituted at such date, and
are subject to adjustment as provided in the Restated Rights Agreement.
If the Rights evidenced by this Right Certificate are
beneficially owned by (i) an Acquiring Person or an Affiliate or Associate of an
Acquiring Person (as such terms are defined in the Restated Rights Agreement),
(ii) a transferee of an Acquiring Person (or of any such Associate or Affiliate)
who becomes a transferee after the Acquiring Person became an Acquiring Person,
or (iii), under certain circumstances specified in the Restated Rights
Agreement, a transferee of an Acquiring Person (or of any such Associate or
Affiliate) who becomes a transferee prior to or concurrently with the Acquiring
Person becoming an Acquiring Person, such Rights shall, when the Acquiring
Person becomes an Acquiring Person, become null and void and thereafter no
holder hereof shall have any right with respect to such Rights.
At the close of business on the 20th calendar day following the
occurrence of a Shares Acquisition Date, each Right becomes the right to
purchase two Common Shares at an Exercise Price of $1.00 per share, subject to
adjustment in accordance with the Restated Rights Agreement.
As provided in the Restated Rights Agreement, the Purchase Price,
the Exercise Price, and the number of Common Shares or kind of other securities
that may be
B-2
purchased upon the exercise of the Rights evidenced by this Right Certificate
are subject to modification and adjustment upon the happening of certain events.
This Right Certificate is subject to all of the terms,
provisions, and conditions of the Restated Rights Agreement, which terms,
provisions, and conditions are hereby incorporated by reference and made a part
of this Right Certificate. Reference is hereby made to the Restated Rights
Agreement for a full description of the rights, limitations of rights,
obligations, duties, and immunities of the Rights Agent, the Company, and the
holders of the Right Certificates. Copies of the Restated Rights Agreement are
on file at the office of the Rights Agent mentioned above.
This Right Certificate, with or without other Right Certificates,
upon surrender at the principal office of the Rights Agent or such other office
as the Rights Agent may designate from time to time for that purpose, may be
exchanged for another Right Certificate or Right Certificates of like tenor and
date evidencing Rights entitling the holder to purchase a like aggregate number
of Common Shares as the Right evidenced by the Right Certificate or Right
Certificates surrendered entitled such holder to purchase. If this Right
Certificate is exercised in part, the holder shall be entitled to receive upon
surrender hereof another Right Certificate or Right Certificates for the number
of whole Rights not exercised.
Subject to the provisions of the Restated Rights Agreement, the
Rights evidenced by this Right Certificate may be redeemed by the Company at its
option at a redemption price of $.01 for each of the Rights.
The Company is not required to issue fractional Common Shares
upon the exercise of any Rights evidenced hereby, but in lieu thereof may make a
cash payment, as provided in the Restated Rights Agreement.
B-3
No holder of this Right Certificate shall be entitled to vote or
receive dividends or be deemed for any purpose to be the holder of the Common
Shares or any other securities of the Company that may at any time be issuable
on the exercise hereof, nor shall anything contained in the Restated Rights
Agreement or herein be construed to confer upon the holder hereof, as such, any
of the rights of a shareholder of the Company or any right to vote in the
election of directors or upon any matter submitted to shareholders at any
meeting thereof, to give or withhold consent to any corporate action, to receive
notice of meetings or other actions affecting shareholders (except as provided
in the Restated Rights Agreement), or to receive dividends or subscription
rights or otherwise, until the Rights evidenced by this Right Certificate have
been exercised as provided in the Restated Rights Agreement.
This Right Certificate shall not be valid or obligatory for any
purpose until it has been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the
Company and its corporate seal. Dated as of ___________________.
ATTEST: NORDSON CORPORATION
By:
------------------------------- --------------------------------
Secretary Title:
Countersigned:
-------------------------------
By
-----------------------------
B-4
[Reverse Side of Right Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if the
holder desires to transfer the Right certificate)
FOR VALUE RECEIVED ______________________________ hereby sells,
assigns, and transfers unto
________________________________________________________________________________
________________________________________________________________________________
(Please print name and address of transferee)
this Right Certificate, together with all right, title, and interest therein,
and does hereby irrevocably constitute and appoint ___________________ as
attorney, to transfer the Right Certificate on the books of Nordson Corporation,
with full power of substitution.
Dated:__________________________
___________________________________
Signature
Signature Guaranteed:
B-5
CERTIFICATE
(Applicable to Form of Assignment)
The undersigned hereby certifies by checking the
appropriate boxes that:
(1) this Right Certificate [ ] is [ ] is not being
sold, assigned, and transferred by or on behalf of a Person who is or was an
Acquiring Person or an Affiliate or Associate of an Acquiring Person (as such
terms are defined in the Restated Rights Agreement);
(2) after due inquiry and to the best knowledge of
the undersigned, the undersigned [ ] did [ ] did not acquire the Rights
evidenced by this Right Certificate from any Person who is, was, or subsequently
became an Acquiring Person or an Affiliate or Associate of an Acquiring Person.
Dated:___________________________ ________________________________
Signature
Notice
The signature to the foregoing Assignment and
Certificate must correspond to the name as written upon the face of this Right
Certificate in every particular, without any alteration or change whatsoever.
B-6
FORM OF ELECTION TO PURCHASE
(To be executed if the holder desires to
exercise the Right Certificate)
To Nordson Corporation:
The undersigned hereby irrevocably elects to
exercise ________________ Rights represented by this Right Certificate to
purchase the Common Shares or other securities issuable upon the exercise of
such Rights and requests that certificates therefor be issued in the name of:
_____________________________________________________________________________
(Please print name and address)
_____________________________________________________________________________
Please insert social security
or other identifying number:
_________________________________________________
If such number of Rights are not all of the Rights evidenced by this Right
Certificate, a new Right Certificate for the balance of such Rights shall be
registered in the name of and delivered to:
_____________________________________________________________________________
(Please print name and address)
_____________________________________________________________________________
Please insert social security
or other identifying number:
_________________________________________________
Dated:________________________ ________________________________________
Signature
(Signature must conform in all respects
to name of the holder as specified on
the face of this Right Certificate)
Signature Guaranteed:
B-7
CERTIFICATE
(Applicable to Form of Election to Purchase)
The undersigned hereby certifies by checking the
appropriate boxes that:
(1) the Rights evidenced by this Right Certificate
[ ] are [ ] are not being exercised by or on behalf of a Person who is or was an
Acquiring Person or an Affiliate or Associate of an Acquiring Person (as such
terms are defined in the Restated Rights Agreement);
(2) after due inquiry and to the best knowledge of
the undersigned, the undersigned [ ] did [ ] did not acquire the Rights
evidenced by this Right Certificate from any Person who is, was, or subsequently
became an Acquiring Person or an Affiliate or Associate of an Acquiring Person.
Dated:_________________________, 19___ __________________________________
Signature
Notice
The signature to the foregoing Election to
Purchase and Certificate must correspond to the name as written upon the fact of
this Right Certificate in every particular, without any alteration or change
whatsoever.
B-8
Exhibit C
SUMMARY OF RIGHTS TO PURCHASE
COMMON SHARES
The Board of Directors of Nordson Corporation in August 1988
declared a dividend consisting of rights to purchase Common Shares of Nordson.
One of the rights was distributed to the holder of each Common Share outstanding
on September 9, 1988, the record date for the distribution. Rights have been and
will continue to be distributed with Common Shares issued by Nordson after the
record date but before the expiration of the rights or the occurrence of a
"flip-in" event, as described below.
When the rights become exercisable, the holder of each of the
rights will be entitled to purchase one Common Share of Nordson for $175. The
rights will become exercisable (1) at the close of business on the earlier of
the 20th calendar day after a public announcement that a person or group has
become the beneficial owner of 15% or more of the outstanding Common Shares (a
"shares acquisition date") or (2) any earlier date designated by Nordson's Board
of Directors.
Until the rights become exercisable, they will trade with the
Common Shares, and any transfer of Common Shares will also constitute a transfer
of the associated rights. When the rights become exercisable, they will begin to
trade separate and apart from the Common Shares. At that time, separate
certificates representing the rights will be mailed to holders.
Twenty days after a "shares acquisition date", each of the rights
will "flip-in" and become the right to purchase two Common Shares of Nordson for
$1.00 per share. Upon the occurrence of a "flip-in" event, rights held by a
person or group that beneficially owns 15% or more of the outstanding Common
Shares, and rights held by certain transferees from any such person or group,
will become void.
The exercise price, and the number of Common Shares of Nordson to
be purchased upon exercise of the rights, are subject to adjustment from time to
time to prevent dilution.
The Board of Directors may redeem the rights for $.01 each at any
time before the 20th calendar day after a "shares acquisition date" or the
earlier expiration of the rights.
Xxxx X. Xxxx and Xxxx X. Xxxx are trustees of the Xxxxxx X. Xxxx
Trust and the Nord Family Foundation, and Xxxx X. Xxxx is trustee of the Xxxx
and Xxxx Xxxx Foundation. For purposes of determining the percentage of Common
Shares deemed to be beneficially owned by them, Common Shares held by the Xxxxxx
X. Xxxx Trust, by the Nord Family Foundation, or by the Xxxx and Xxxx Xxxx Trust
will not be attributed to either Xxxx X. Xxxx or Xxxx X. Xxxx, and Common Shares
held by Xxxx X. Xxxx or Xxxx X. Xxxx will not be attributed to the Xxxxxx X.
Xxxx Trust, the Nord Family Foundation, or the Xxxx and Xxxx Xxxx Foundation.
Similarly, Common Shares held by the Nord Family Foundation will not be
attributed to the Xxxx and Xxxx Xxxx Foundation, and Common Shares held by the
Xxxx and Xxxx Xxxx Foundation will not be attributed to the Nord Family
Foundation.
The terms of the rights are set forth in a Second Restated Rights
Agreement between Nordson and National City Bank, as rights agent (the "Restated
Rights Agreement"). The provisions of the Restated Rights Agreement may be
amended by the Board of Directors to cure any ambiguity or correct any defect or
inconsistency. Prior to the close of business on the 20th calendar day following
the occurrence of a "shares acquisition date", the Restated Rights Agreement may
also be amended to make any other change that the Board of Directors deems to be
consistent with the purposes of the Restated Rights Agreement and not adverse to
the interests of the Company and its shareholders.
A copy of the Restated Rights Agreement has been filed with the
Securities and Exchange Commission. A copy of the Restated Rights Agreement is
available from Nordson free of charge. This summary of the rights is not
complete and is qualified in its entirety by reference to the Restated Rights
Agreement.
B-2
