Exhibit 4
_______________________________________________________
XXX XXXXXXXX XXXXXXX
and
THE FIRST NATIONAL BANK OF BOSTON
Rights Agent
___________________
Renewed Rights Agreement
Dated as of December 14, 1995
______________________________________________________
RENEWED RIGHTS AGREEMENT
RENEWED RIGHTS AGREEMENT dated as of December 14, 1995
between Xxx Xxxxxxxx Xxxxxxx, a Delaware corporation (the
"Company"), and The First National Bank of Boston, a national
banking association (the "Rights Agent").
W I T N E S S E T H
WHEREAS, on November 26, 1986, the Board of Directors
of the Company (the "Board") authorized and declared a dividend
distribution of one 1986 Right (as hereinafter defined) for each
share of Common Stock (as hereinafter defined) of the Company
outstanding at the Close of Business (as hereinafter defined) on
December 8, 1986 (the "1986 Record Date"), and authorized the
issuance of one 1986 Right (as such number was subsequently
adjusted pursuant to the provisions of Section 11(p) of the
Rights Agreement, dated as of November 26, 1986 (the "1986
Agreement"), as amended and restated as of January 17, 1990 (the
"1990 Agreement"), between the Company and the Rights Agent) for
each share of Common Stock of the Company issued between the 1986
Record Date (whether originally issued or delivered from the
Company's treasury) and the Distribution Date under the 1986
Agreement, as amended by the 1990 Agreement, each 1986 Right
initially representing the right to purchase one two-hundredth of
a share of the Original Preferred Stock (as hereinafter defined),
upon the terms and subject to the conditions set forth in the
1986 Agreement, as amended by the 1990 Agreement (the "1986
Rights");
WHEREAS, on May 1, 1987, a two-for-one split of the
Common Stock of the Company became effective and, in accordance
with Section 11(p) of the 1986 Agreement, the 1986 Rights
associated with each share of Common Stock of the Company
thereafter outstanding were automatically proportionately
adjusted so that each share of Common Stock was, at the date
thereof, accompanied by one-half of one 1986 Right; and
WHEREAS, on July 20, 1989, the Company issued 600,000
shares of Series B Cumulative Convertible Preferred Stock,
without par value, of the Company, each such share initially
accompanied by 10 1986 Rights (as such number may have been
adjusted pursuant to the provisions of Section 11(p) of the 1986
Agreement, as amended by the 1990 Agreement); and
WHEREAS, on July 20, 1989, the Board of Directors, in
accordance with Section 26 of the 1986 Agreement, determined it
desirable and in the best interests of the Company and its
stockholders to supplement and amend certain provisions of the
1986 Agreement; and
WHEREAS, on January 15, 1990, a duly authorized
committee of the Board, in accordance with Section 26 of the 1986
Agreement, determined it desirable and in the best interests of
the Company and its stockholders to supplement and amend certain
provisions of the 1986 Agreement and to implement such
supplements and amendments by executing the 1990 Agreement; and
WHEREAS, on January 17, 1990, the Company issued
165,871.864 shares of Series C Preferred Stock (as hereinafter
defined) of the Company, each such share initially accompanied by
five 1986 Rights (as such number may have been adjusted pursuant
to the provisions of Section 11(p) of the 1986 Agreement, as
amended by the 1990 Agreement); and
WHEREAS, on December 14, 1995, the Board determined it
desirable and in the best interests of the Company and its
stockholders for the Company to renew the 1990 Agreement and to
implement such renewal by executing this Agreement (as
hereinafter defined); and
WHEREAS, on December 14, 1995 (the "Rights Dividend
Declaration Date"), the Board authorized and declared a dividend
distribution of one Right (as hereinafter defined) for each share
of Common Stock of the Company and 40 Rights for each share of
Series C Preferred Stock outstanding upon the "Expiration Date"
under the 1990 Agreement (the "Record Date") and authorized the
issuance of one Right (as such number may hereafter be adjusted
pursuant to the provisions of Section 11(i) or Section 11(p)
hereof) for each share of Common Stock of the Company and 40
Rights for each share of Series C Preferred Stock issued between
the Record Date (whether originally issued or delivered from the
Company's treasury) and the Distribution Date (as defined
herein), and under certain circumstances thereafter, each Right
initially representing the right to purchase one ten-thousandth
of a share of Preferred Stock (as hereinafter defined), upon the
terms and subject to the conditions hereinafter set forth (the
"Rights");
NOW, THEREFORE, in consideration of the premises and
the mutual agreements herein set forth, the parties hereby agree
as follows:
Section 1. Certain Definitions. For purposes of this
Agreement, the following terms have the meanings indicated:
(a) "Acquiring Person" shall mean any Person (as
hereinafter defined) who or which, together with all Affiliates
and Associates of such Person, shall be the Beneficial Owner (as
hereinafter defined) of 15% or more of the shares of Common Stock
of the Company then outstanding, but shall not include an Exempt
Person (as hereinafter defined).
(b) "Act" shall mean the Securities Act of 1933,
as amended.
(c) "Adjustment Shares" shall have the meaning
set forth in Section 11(a)(ii) hereof.
(d) "Affiliate" and "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2 of the
General Rules and Regulations under the Exchange Act (as
hereinafter defined).
(e) "Agreement" means this Renewed Rights
Agreement as originally executed or as it may from time to time
be supplemented, amended, renewed or extended pursuant to the
applicable provisions hereof.
(f) A Person shall be deemed the "Beneficial
Owner" of and shall be deemed to "beneficially own" any
securities:
(i) which such Person or any of such
Person's Affiliates or Associates, directly or
indirectly, has the right to acquire (whether such
right is exercisable immediately or only after the
passage of time) pursuant to any agreement, arrangement
or understanding (whether or not in writing) or upon
the exercise of conversion rights, exchange rights,
rights, warrants or options, or otherwise; provided,
however, that a Person shall not be deemed the
"Beneficial Owner" of or to "beneficially own" (A)
securities tendered pursuant to a tender or exchange
offer made by such Person or any of such Person's
Affiliates or Associates until such tendered securities
are accepted for purchase or exchange or (B) securities
issuable upon exercise of Rights at any time prior to
the occurrence of a Triggering Event or (C) securities
issuable upon exercise of Rights from and after the
occurrence of a Triggering Event which Rights are
Original Rights (as hereinafter defined) or securities
issued pursuant to Section 11(i) hereof in connection
with an adjustment made with respect to any Original
Rights;
(ii) which such Person or any of such
Person's Affiliates or Associates, directly or
indirectly, has the right to vote or dispose of or has
"beneficial ownership" of (as determined pursuant to
Rule 13d-3 of the General Rules and Regulations under
the Exchange Act), including pursuant to any agreement,
arrangement or understanding, whether or not in
writing; provided, however, that a Person shall not be
deemed the "Beneficial Owner" of, or to "beneficially
own," any security under this subparagraph (ii) as a
result of an agreement, arrangement or understanding to
vote such security if such agreement, arrangement or
understanding: (A) arises solely from a revocable
proxy given in response to a public proxy or consent
solicitation made pursuant to, and in accordance with,
the applicable provisions of the General Rules and
Regulations under the Exchange Act and (B) is not also
then reportable by such Person on Schedule 13D under
the Exchange Act (or any comparable or successor
report); or
(iii) which are beneficially owned,
directly or indirectly, by any other Person (or any
Affiliate or Associate thereof) with which such Person
(or any of such Person's Affiliates or Associates) has
any agreement, arrangement or understanding (whether or
not in writing), for the purpose of acquiring, holding,
voting (except pursuant to a revocable proxy as
described in the proviso to subparagraph (ii) of this
paragraph (f)) or disposing of any voting securities of
the Company; provided, however, that nothing in this
paragraph (f) shall cause a Person engaged in business
as an underwriter of securities to be deemed the
"Beneficial Owner" of or to be deemed to "beneficially
own" any securities acquired through such Person's
participation in good faith in a firm commitment
underwriting until the expiration of forty days after
the date of such acquisition.
(g) "Board" shall have the meaning set forth in
the first "WHEREAS" clause at the beginning of this Agreement.
(h) "Business Day" shall mean any day other than
a Saturday, Sunday or a day on which banking institutions in the
Commonwealth of Massachusetts are authorized or obligated by law
or executive order to close.
(i) "Certificate of Designations" shall mean the
Certificate of Designations, Preferences and Rights of Series A
Junior Participating Preferred Stock (a form of which was
attached to the 1986 Agreement), as filed with the Secretary of
State of the State of Delaware on December 30, 1985.
(j) "Close of Business" on any given date shall
mean 5:00 P.M., Boston time, on such date; provided, however,
that if such date is not a Business Day it shall mean 5:00 P.M.,
Boston time, on the next succeeding Business Day.
(k) "Common Stock" when used in reference to the
Company shall mean the common stock, par value $1.00 per share,
of the Company or any other shares of capital stock of the
Company into which such stock shall be reclassified or changed.
"Common Stock" when used with reference to any Person other than
the Company organized in corporate form shall mean (i) the
capital stock or other equity interest of such Person with the
greatest voting power, (ii) the equity securities or other equity
interest having power to control or direct the management of such
Person or (iii) if such Person is a Subsidiary of another Person,
the Person or Persons which ultimately control such first-
mentioned Person and which have issued any such outstanding
capital stock, equity securities or equity interest. "Common
Stock" when used with reference to any Person not organized in
corporate form shall mean units of beneficial interest which (x)
shall represent the right to participate generally in the profits
and losses of such Person (including without limitation any flow-
through tax benefits resulting from an ownership interest in such
Person) and (y) shall be entitled to exercise the greatest voting
power of such Person or, in the case of a limited partnership,
shall have the power to rename the general partner or partners.
(l) "Common Stock Equivalents" shall have the
meaning set forth in Section 11(a)(iii) hereof.
(m) "Company" shall mean the Person named as the
Company in the first paragraph of this Agreement until a
successor corporation or entity shall have become such or until a
Principal Party (as hereinafter defined) shall assume, and
thereafter be liable for, all obligations and duties of the
Company hereunder pursuant to the applicable provisions of this
Agreement, and thereafter, "Company" shall mean such successor or
Principal Party.
(n) "Current Market Price" shall have the meaning
set forth in Section 11(d)(i) hereof.
(o) "Current Value" shall have the meaning set
forth in Section 11(a)(iii) hereof.
(p) "Distribution Date" shall have the meaning
set forth in Section 3(a) hereof.
(q) "Equivalent Preferred Stock" shall have the
meaning set forth in Section 11(b) hereof.
(r) "Exchange Act" shall mean the Securities
Exchange Act of 1934, as amended.
(s) "Exempt Person" shall mean: (i) the Company;
(ii) any Subsidiary of the Company; (iii) any employee benefit
plan of the Company or of any Subsidiary of the Company; (iv) any
Person or entity organized, appointed or established by the
Company for or pursuant to the terms of any such plan; (v) any
Person with respect to whom or which the Board in its sole
discretion determines before such Person otherwise would be an
Acquiring Person, that the protections of this Agreement are not
necessary or appropriate; (vi) any Person who, together with its
Affiliates and Associates, becomes the Beneficial Owner of 15% or
more of the shares of Common Stock of the Company then
outstanding solely as a result of a reduction in the number of
shares of Common Stock of the Company outstanding due to the
repurchase of shares of Common Stock of the Company by the
Company, unless and until such time as such Person shall purchase
or otherwise become (as a result of actions taken by such Person
or its Affiliates or Associates) the Beneficial Owner of
additional shares of Common Stock of the Company constituting 1%
or more of the then outstanding shares of Common Stock of the
Company; or (vii) any Person who (A) is the Beneficial Owner of
less than 25% of the Common Stock of the Company then outstanding
and has reported such ownership on Schedule 13G under the
Exchange Act (as defined herein) (or any comparable or successor
report) or on Schedule 13D under the Exchange Act (or any
comparable or successor report) which Schedule 13D does not state
any intention to or reserve the right to control or influence the
management or policies of the Company or engage in any of the
actions specified in Item 4 of such Schedule (other than the
disposition of the Common Stock of the Company), (B) within 10
Business Days of being requested by the Company to advise the
Company regarding its intentions, certifies to the Company that
such Person acquired shares of Common Stock of the Company in
excess of 14.99% inadvertently or without knowledge of the terms
of the Rights, (C) the Company determines acquired in excess of
14.99% inadvertently or without knowledge of the terms of the
Rights and (D) together with its Affiliates and Associates,
thereafter does not acquire additional shares of Common Stock of
the Company while the Beneficial Owner of 15% or more of the
shares of Common Stock of the Company then outstanding.
(t) "Expiration Date" shall have the meaning set
forth in Section 7(a) hereof.
(u) "Final Expiration Date" shall mean the Close
of Business on December 14, 2005.
(v) "Original Preferred Stock" shall mean shares
of Series A Junior Participating Preferred Stock, without par
value, of the Company having the rights, powers and preferences
set forth in the Certificate of Designations.
(w) "Original Rights" shall mean Rights acquired
by such Person or any of such Person's Affiliates or Associates
prior to the Distribution Date or pursuant to Section 3(a) or
Section 22 hereof.
(x) "Outside Directors" shall mean the members of
the Board who are not officers of the Company or any of its
Subsidiaries and who are not Acquiring Persons or
representatives, nominees, Affiliates or Associates of Acquiring
Persons.
(y) "Person" shall mean any individual, firm,
corporation, partnership, trust or other entity and includes
without limitation an unincorporated group of persons who, by
formal or informal agreement, have embarked on a common purpose
or act.
(z) "Preferred Stock" shall mean shares of Series
A Junior Participating Preferred Stock, without par value, of the
Company having the rights, powers and preferences set forth in
the Certificate of Designations, as amended by the Amendment to
Certificate of Designations substantially in the form attached as
Exhibit A hereto to take effect as of the Record Date.
(aa) "Principal Party" shall have the meaning set
forth in Section 13(b) hereof.
(bb) "Purchase Price" shall have the meaning set
forth in Section 4(a) hereof.
(cc) "Record Date" shall have the meaning set
forth in the eighth "WHEREAS" clause at the beginning of this
Agreement.
(dd) "Redemption Price" shall have the meaning set
forth in Section 23(a) hereof.
(ee) "Rights" shall have the meaning set forth in
the eighth "WHEREAS" clause at the beginning of this Agreement.
(ff) "Rights Agent" shall mean the Person named as
the "Rights Agent" in the first paragraph of this Agreement until
a successor Rights Agent shall have become such pursuant to the
applicable provisions hereof, and thereafter, "Rights Agent"
shall become such successor. If at any time there is more than
one Person appointed by the Company as Rights Agent pursuant to
the applicable provisions of this Agreement, "Rights Agent" shall
mean and include each such Person.
(gg) "Rights Certificates" shall have the meaning
set forth in Section 3(a) hereof.
(hh) "Rights Dividend Declaration Date" shall have
the meaning set forth in the eighth "WHEREAS" clause at the
beginning of this Agreement.
(ii) "Section 11(a)(ii) Event" shall have the
meaning set forth in Section 11(a)(ii) hereof.
(jj) "Section 11(a)(ii) Trigger Date" shall have
the meaning set forth in Section 11(a)(iii) hereof.
(kk) "Section 13 Event" shall have the meaning set
forth in Section 13(a) hereof.
(ll) "Series C Preferred Stock" shall mean the
Series C ESOP Convertible Preferred Stock, without par value, of
the Company.
(mm) "Spread" shall have the meaning set forth in
Section 11(a)(iii) hereof.
(nn) "Stock Acquisition Date" shall mean the first
date of public announcement by the Company that an Acquiring
Person has become such.
(oo) "Subsidiary" shall mean, with reference to
any Person, any corporation or other entity of which securities
or other ownership interest having ordinary voting power
sufficient, in the absence of contingencies, to elect a majority
of the board of directors or other persons performing similar
functions of such corporation or other entity are at the time
directly or indirectly beneficially owned or otherwise controlled
by such Person and any Affiliate of such Person.
(pp) "Substitution Period" shall have the meaning
set forth in Section 11(a)(iii) hereof.
(qq) "Summary of Rights" shall have the meaning
set forth in Section 3(b) hereof.
(rr) "Trading Day" shall have the meaning set
forth in Section 11(d)(i) hereof.
(ss) "Triggering Event" shall mean any Section
11(a)(ii) Event or any Section 13 Event.
Section 2. Appointment of Rights Agent. The Company
has appointed the Rights Agent to act as agent for the Company
and the holders of the Rights (who, in accordance with Section 3
hereof, shall prior to the Distribution Date also be the holders
of the Common Stock of the Company and the Series C Preferred
Stock, as the case may be) in accordance with the terms and
conditions hereof, and the Rights Agent hereby accepts such
appointment. The Company may from time to time appoint such Co-
Rights Agents as it may deem necessary or desirable. In the
event the Company appoints one or more Co-Rights Agents, the
respective duties of the Rights Agent and any Co-Rights Agent
shall be as the Company shall determine, and any actions which
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 Rights Certificates.
(a) Until the earlier of (i) the Close of
Business on the tenth Business Day (or such specified or
unspecified later date as may be determined by the Board before
the occurrence of a Distribution Date) after the Stock
Acquisition Date (or, if the tenth Business Day after the Stock
Acquisition Date occurs before the Record Date, the Close of
Business on the Record Date) or (ii) the Close of Business on the
tenth Business Day (or such specified or unspecified later date
as may be determined by the Board before the occurrence of a
Distribution Date) after the date that a tender or exchange offer
by any Person (other than an Exempt Person) is first published or
sent or given within the meaning of Rule 14d-2(a) of the General
Rules and Regulations under the Exchange Act, if upon
consummation thereof such Person would be the Beneficial Owner of
15% or more of the Common Stock then outstanding (the earlier of
(i) and (ii) being herein referred to as the "Distribution
Date"), (x) the Rights will be evidenced (subject to the
provisions of paragraphs (b) and (c) of this Section 3) by the
certificates for the Common Stock of the Company and the Series C
Preferred Stock, respectively, registered in the names of the
holders thereof (which certificates shall be deemed also to be
certificates for Rights) and not by separate certificates, and
(y) the Rights will be transferable only in connection with the
transfer of the underlying shares of Common Stock of the Company
and the Series C Preferred Stock, as the case may be (including a
transfer to the Company). 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 the
Common Stock of the Company and the Series C Preferred Stock, as
the case may be, as of the Close of Business on the Distribution
Date, at the address of such holder shown on the records of the
Company, one or more rights certificates, in substantially the
form of Exhibit B hereto (the "Rights Certificates"), evidencing
(i) in the case of a record holder of the Common Stock, one Right
for each share of Common Stock of the Company so held, subject to
adjustment as provided herein and (ii) in the case of a record
holder of the Series C Preferred Stock, 40 Rights for each share
of Series C Preferred Stock so held, subject to adjustment as
provided herein. In the event that an adjustment in the number
of Rights per share of Common Stock of the Company and the Series
C Preferred Stock, as the case may be, has been made pursuant to
Section 11(p) hereof, at the time of distribution of the Rights
Certificates, the Company shall not be required to issue Rights
Certificates evidencing fractional Rights, but may, in lieu
thereof, make the necessary and appropriate rounding adjustments
(in accordance with Section 14(a) hereof) so that Rights
Certificates representing only whole numbers of Rights are
distributed and cash is paid in lieu of any fractional Rights.
As of and after the Distribution Date, the Rights will be
evidenced solely by such Rights Certificates.
(b) The Company sent a copy of a Summary of
Rights, in substantially the form attached to the 1986 Agreement
as Exhibit B thereto (the "Summary of Rights"), by first-class,
postage prepaid mail, to each record holder of the Common Stock
of the Company as of the Close of Business on the 1986 Record
Date, at the address of such holder then shown on the records of
the Company. The Summary of Rights attached to the 1990
Agreement as Exhibit B was revised to reflect amendments to the
1986 Agreement effected through January 17, 1990. With respect
to certificates for the Common Stock of the Company or Series C
Preferred Stock, as the case may be, outstanding as of the Record
Date, as set forth in paragraph (a) above, until the earlier of
the Distribution Date or the Expiration Date, the Rights will be
evidenced by such certificates for the Common Stock of the
Company with the Summary of Rights attached or certificates for
the Common Stock of the Company or the Series C Preferred Stock,
as the case may be, as legended pursuant to the terms of the 1986
Agreement or the 1990 Agreement, and the registered holders of
the Common Stock of the Company or the Series C Preferred Stock,
as the case may be, shall also be the registered holders of the
associated Rights. Until the earlier of the Distribution Date or
the Expiration Date, the transfer of any certificates
representing shares of Common Stock of the Company or Series C
Preferred Stock, as the case may be, in respect of which Rights
have been issued shall also constitute the transfer of the Rights
associated with such shares of Common Stock of the Company or
Series C Preferred Stock, as the case may be.
(c) Rights shall be issued in respect of all
shares of Common Stock of the Company and Series C Preferred
Stock which are issued (whether originally issued or from the
Company's treasury) after the Record Date but prior to the
earlier of the Distribution Date or the Expiration Date, and to
the extent provided in Section 22 hereof, in respect of shares of
Common Stock of the Company or Series C Preferred Stock issued
after the Distribution Date and prior to the Expiration Date.
Certificates representing such shares of Common Stock of the
Company and Series C Preferred Stock, as the case may be, shall
also be deemed to be certificates for Rights, and shall, as
promptly as possible following the Record Date, bear the
following legend:
This certificate also evidences and entitles the
holder hereof to certain Rights as set forth in the
Renewed Rights Agreement between Xxx Xxxxxxxx Xxxxxxx
(the "Company") and The First National Bank of Boston
(the "Rights Agent") dated as of December 14, 1995, as
the same may be amended, restated, renewed or extended
from time to time (the "Rights Agreement"), the terms
of which are hereby incorporated herein by reference
and a copy of which is on file at the principal offices
of the Company. Under certain circumstances, as set
forth in the Rights Agreement, such Rights will be
evidenced by separate certificates and will no longer
be evidenced by this certificate. The Company will
mail to the holder of this certificate a copy of the
Rights Agreement, as in effect on the date of mailing,
without charge promptly after receipt of a written
request therefor. Under certain circumstances set
forth in the Rights Agreement, Rights beneficially
owned (as such term is defined in the Rights Agreement)
by any Person who is, was or becomes an Acquiring
Person or any Affiliate or Associate thereof (as such
terms are defined in the Rights Agreement), whether
currently held by or on behalf of such Person or by any
subsequent holder, may become null and void. The
Rights shall not be exercisable, and shall be void so
long as held, by a holder in any jurisdiction where the
requisite qualification to the issuance to such holder,
or the exercise by such holder, of the Rights in such
jurisdiction shall not have been obtained or be
obtainable.
With respect to such certificates containing the foregoing
legend, until the earlier of (i) the Distribution Date or (ii)
the Expiration Date, the Rights associated with the Common Stock
and the Series C Preferred Stock represented by such certificates
shall be evidenced by such certificates alone, registered holders
of Common Stock of the Company and the Series C Preferred Stock
shall also be the registered holders of the associated Rights,
and the transfer of any of such certificates shall also
constitute the transfer of the Rights associated with the Common
Stock of the Company or Series C Preferred Stock, as the case may
be, represented by such certificates. Upon the conversion,
redemption or acquisition by the Company (by purchase or
otherwise) of any shares of Series C Preferred Stock prior to the
Distribution Date, the Rights issued in respect of such shares of
Series C Preferred Stock shall cease to exist and, in the case of
any such conversion, the holder of shares of Common Stock of the
Company received upon conversion shall be issued in accordance
with this Section 3 such number of Rights with respect to each
such share of Common Stock of the Company as are then associated
with each outstanding share of Common Stock of the Company.
Section 4. Form of Rights Certificates.
(a) The Rights Certificates (and the forms of
election to purchase, the forms of assignment and the
accompanying certificates to be printed on the reverse thereof)
shall each be substantially in the form set forth in Exhibit B
hereto and may have such marks of identification or designation
and such legends, summaries or endorsements printed thereon as
the Company may deem appropriate and as are not inconsistent with
the provisions of this Agreement, or as may be required to comply
with any applicable law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock
exchange on which the Rights may from time to time be listed, or
to conform to usage. Subject to the provisions of Section 11 and
Section 22 hereof, the Rights Certificates, whenever distributed,
shall be dated as of the Record Date and on their face shall
entitle the holders thereof to purchase such number of one ten-
thousandths of a share of Preferred Stock as shall be set forth
therein at the exercise price set forth therein (such exercise
price per one ten-thousandth of a share, as adjusted from time to
time hereunder, the "Purchase Price"), but the amount and type of
securities purchasable upon the exercise of each Right and the
Purchase Price thereof shall be subject to adjustment as provided
herein.
(b) Any Rights Certificate issued pursuant to
Section 3(a) or Section 22 hereof that represents Rights
beneficially owned by: (i) an Acquiring Person or any Associate
or Affiliate of an Acquiring Person, (ii) a transferee of an
Acquiring Person (or of any such Associate or Affiliate) who
becomes a transferee after the Acquiring Person becomes such or
(iii) a transferee of an Acquiring Person (or of any such
Associate or Affiliate) who becomes a transferee prior to or
concurrently with the Acquiring Person becoming such and receives
such Rights pursuant to either (A) a transfer (whether or not for
consideration) from the Acquiring Person to holders of equity
interests in such Acquiring Person or to any Person with whom
such Acquiring Person has any continuing agreement, arrangement
or understanding regarding the transferred Rights or (B) a
transfer which the Board has determined is part of a plan,
arrangement or understanding which has as a primary purpose or
effect avoidance of Section 7(e) hereof, and any Rights
Certificate issued pursuant to Section 6 or Section 11 hereof
upon transfer, exchange, replacement or adjustment of any other
Rights Certificate referred to in this sentence, shall contain
(to the extent feasible) the following legend:
The Rights represented by this Rights Certificate are
or were beneficially owned by a Person who was or
became an Acquiring Person or an Affiliate or Associate
of an Acquiring Person (as such terms are defined in
the Renewed Rights Agreement). Accordingly, this
Rights Certificate and the Rights represented hereby
may become null and void in the circumstances specified
in Section 7(e) of such Agreement.
Section 5. Countersignature and Registration.
(a) The Rights Certificates shall be executed on
behalf of the Company by its Chairman of the Board, its
President, its Vice Chairman of the Board or any Vice President
and by the Treasurer or an Assistant Treasurer, or the Secretary
or an Assistant Secretary, either manually or by facsimile
signature. The Rights Certificates shall be manually
countersigned by an authorized signatory of the Rights Agent and
shall not be valid for any purpose unless so countersigned. In
case any officer of the Company who shall have signed any of the
Rights Certificates shall cease to be such officer of the Company
before countersignature by an authorized signatory of the Rights
Agent and issuance and delivery by the Company, such Rights
Certificates, nevertheless, may be countersigned by an authorized
signatory of the Rights Agent and issued and delivered by the
Company with the same force and effect as though the person who
signed such Rights Certificates had not ceased to be such officer
of the Company; and any Rights Certificate may be signed on
behalf of the Company by any person who, at the actual date of
the execution of such Rights Certificate, shall be a proper
officer of the Company to sign such Rights Certificate, although
at the date of the execution of this Rights Agreement any such
person was not such an officer.
(b) Following the Distribution Date, the Rights
Agent will keep or cause to be kept, at its office designated as
the appropriate place for surrender of Rights Certificates upon
exercise or transfer, books for registration and transfer of the
Rights Certificates issued hereunder. Such books shall show the
names and addresses of the respective holders of the Rights
Certificates, the number of Rights evidenced on its face by each
of the Rights Certificates and the date of each of the Rights
Certificates.
Section 6. Transfer, Split Up, Combination and
Exchange of Rights Certificates; Mutilated, Destroyed, Lost or
Stolen Rights Certificates.
(a) Subject to the provisions of Section 4(b),
Section 7(e) and Section 14 hereof, at any time after the Close
of Business on the Distribution Date, and at or prior to the
Close of Business on the Expiration Date, any Rights Certificate
or Rights Certificates may be transferred, split up, combined or
exchanged for another Rights Certificate or Rights Certificates,
entitling the registered holder to purchase a like number of one
ten-thousandths of a share of Preferred Stock (or following a
Triggering Event, Common Stock, other securities, cash or other
assets, as the case may be) as the Rights Certificate or Rights
Certificates surrendered then entitled such holder (or former
holder in the case of a transfer) to purchase. Any registered
holder desiring to transfer, split up, combine or exchange any
Rights Certificate or Rights Certificates shall make such request
in writing delivered to the Rights Agent and shall surrender the
Rights Certificate or Rights Certificates to be transferred,
split up, combined or exchanged, with the forms of assignment and
certificate appropriately executed, at the office of the Rights
Agent designated for such purpose. Neither the Rights Agent nor
the Company shall be obligated to take any action whatsoever with
respect to the transfer or exchange of any such surrendered
Rights Certificate or Rights Certificates until the registered
holder shall have completed and signed the certificate contained
in the form of assignment on the reverse side of such Rights
Certificate or Rights Certificates and shall have provided such
additional evidence of the identity of the Beneficial Owner (or
former Beneficial Owner) or Affiliates or Associates thereof as
the Company shall reasonably request. Thereupon, the Rights
Agent shall, subject to Section 4(b), Section 7(e) and Section 14
hereof, countersign and deliver to the Person entitled thereto a
Rights Certificate or Rights Certificates, as the case may be, as
so requested. The Company may require payment of a sum
sufficient to cover any tax or governmental charge that may be
imposed in connection with any transfer, split up, combination or
exchange of Rights Certificates.
(b) Upon receipt by the Company and the Rights
Agent of evidence reasonably satisfactory to them of the loss,
theft, destruction or mutilation of a valid Rights Certificate
and, in case of loss, theft or destruction, of indemnity or
security reasonably satisfactory to them and reimbursement to the
Company and the Rights Agent of all reasonable expenses
incidental thereto, and upon surrender to the Rights Agent and
cancellation of the Rights Certificate if mutilated, the Company
will execute and deliver a new Rights Certificate of like tenor
to the Rights Agent for countersignature and delivery to the
registered owner in lieu of the Rights Certificate so lost,
stolen, destroyed or mutilated.
Section 7. Exercise of Rights; Purchase Price;
Expiration Date of Rights.
(a) Subject to Section 7(e) hereof, the
registered holder of any Rights Certificate may exercise the
Rights evidenced thereby (except as otherwise provided herein
including without limitation the restrictions on exercisability
set forth in Section 9(c), Section 11(a)(iii) and Section 23(a)
hereof) in whole or in part at any time after the Distribution
Date upon surrender of the Rights Certificate, with the form of
election to purchase and the certificate on the reverse side
thereof duly executed, to the Rights Agent at the office of the
Rights Agent designated for such purpose, together with payment
of the aggregate Purchase Price with respect to the total number
of one ten-thousandths of a share of Preferred Stock (or
following a Triggering Event, Common Stock of the Company, other
securities, cash or other assets, as the case may be) as to which
such surrendered Rights are then exercisable, at or prior to the
earliest of (i) the Final Expiration Date, (ii) the time at which
the Rights are redeemed as provided in Section 23 hereof and
(iii) the time at which the Rights expire pursuant to Section
13(d) hereof (the earliest of (i), (ii) and (iii) being herein
referred to as the "Expiration Date").
(b) The Purchase Price for each one ten-
thousandth of a share of Preferred Stock pursuant to the exercise
of a Right shall initially be $225, and shall be subject to
adjustment from time to time as provided in Sections 11 and 13(a)
hereof and shall be payable in accordance with paragraph (c)
below.
(c) Upon receipt of a Rights Certificate
representing exercisable Rights, with the form of election to
purchase and the certificate on the reverse side of the Rights
Certificate duly executed, accompanied by payment, with respect
to each Right so exercised, of the Purchase Price, as such amount
may be reduced pursuant to Section 11(a)(ii) hereof, per one ten-
thousandth of a share of Preferred Stock (or following a
Triggering Event, for Common Stock of the Company, other shares,
securities, cash or other assets, as the case may be) to be
purchased as set forth below and an amount equal to any
applicable transfer tax, the Rights Agent shall, subject to
Sections 7(f) and 20(k) hereof, thereupon promptly (i) (A)
requisition from any transfer agent of the shares of Preferred
Stock (or make available, if the Rights Agent is the transfer
agent for such shares) certificates for the total number of one
ten-thousandths of a share of Preferred Stock to be purchased and
the Company hereby irrevocably authorizes its transfer agent to
comply with all such requests or (B) if the Company shall have
elected to deposit the total number of shares of Preferred Stock
issuable upon exercise of the Rights hereunder with a depositary
agent, requisition from the depositary agent depositary receipts
representing such number of one ten-thousandths of a share of
Preferred Stock as are to be purchased (in which case
certificates for the shares of Preferred Stock represented by
such receipts shall be deposited by the transfer agent with the
depositary agent) and the Company will direct the depositary
agent to comply with such request, (ii) requisition from the
Company the amount of cash, if any, to be paid in lieu of
fractional shares in accordance with Section 14 hereof, (iii)
after receipt of such certificates or depositary receipts, cause
the same to be delivered to or upon the order of the registered
holder of such Rights Certificate, registered in such name or
names as may be designated by such holder, and (iv) after receipt
thereof, deliver such cash, if any, to or upon the order of the
registered holder of such Rights Certificate. The payment of the
Purchase Price (as such amount may be reduced pursuant to
Section 11(a)(iii) hereof) shall be made in cash or by certified
check, cashiers check or bank draft payable to the order of the
Company. In the event that the Company is obligated to issue
other securities (including Common Stock) of the Company, pay
cash and/or distribute other property pursuant to Section 11(a)
hereof, the Company will make all arrangements necessary so that
such other securities, cash and/or other property are available
for distribution by the Rights Agent, if and when appropriate.
The Company reserves the right to require prior to the occurrence
of a Triggering Event that, upon any exercise of Rights, a number
of Rights be exercised so that only whole shares of Preferred
Stock would be issued.
(d) In case the registered holder of any Rights
Certificate shall exercise less than all the Rights evidenced
thereby, a new Rights Certificate evidencing Rights equivalent to
the Rights remaining unexercised shall be issued by the Rights
Agent and delivered to, or upon the order of, the registered
holder of such Rights Certificate, registered in such name or
names as may be designated by such holder, subject to the
provisions of Section 14 hereof.
(e) Notwithstanding anything in this Agreement to
the contrary, from and after the first occurrence of a Section
11(a)(ii) Event, any Rights beneficially owned by (i) an
Acquiring Person or an Associate or Affiliate of an Acquiring
Person which the Board, in its sole discretion, determines is or
was involved in or caused or facilitated, directly or indirectly
(including through any change in the Board), such
Section 11(a)(ii) Event, (ii) a transferee of such Acquiring
Person (or of any such Associate or Affiliate) who becomes a
transferee after such Acquiring Person becomes such or (iii) a
transferee of such Acquiring Person (or of any such Associate or
Affiliate) who becomes a transferee prior to or concurrently with
such Acquiring Person becoming such and receives such Rights
pursuant to either (A) a transfer (whether or not for
consideration) from such Acquiring Person to holders of equity
interests in such Acquiring Person or to any Person with whom
such Acquiring Person has any continuing agreement, arrangement
or understanding regarding the transferred Rights or (B) a
transfer which the Board has determined is part of a plan,
arrangement or understanding which has as a primary purpose or
effect the avoidance of this Section 7(e), shall become null and
void without any further action, and no holder of such Rights
shall have any rights whatsoever with respect to such Rights,
whether under any provision of this Agreement or otherwise. The
Company shall use all reasonable efforts to ensure that the
provisions of this Section 7(e) and Section 4(b) hereof are
complied with, but shall have no liability to any holder of
Rights Certificates or other Person as a result of its failure to
make any determinations with respect to an Acquiring Person or
its Affiliates, Associates or transferees hereunder.
(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 any Rights Certificate upon the occurrence of any
purported assignment or exercise as set forth in this Section 7
unless such registered holder shall have (i) completed and signed
the certificate contained in the form of assignment or election
to purchase set forth on the reverse side of the Rights
Certificate surrendered for such assignment or exercise and (ii)
provided such additional evidence of the identity of the
Beneficial Owner (or former Beneficial Owner) or Affiliates or
Associates thereof as the Company shall reasonably request.
Section 8. Cancellation and Destruction of Rights
Certificates. All Rights Certificates surrendered for the
purpose of exercise, transfer, split up, combination or exchange
shall, if surrendered to the Company or any of its agents, be
delivered to the Rights Agent for cancellation or in cancelled
form or, if surrendered to the Rights Agent, shall be cancelled
by it, and no Rights Certificates shall be issued in lieu thereof
except as expressly permitted by any of the provisions of this
Agreement. The Company shall deliver to the Rights Agent for
cancellation and retirement, and the Rights Agent shall so cancel
and retire, any other Rights Certificate purchased or acquired by
the Company otherwise than upon the exercise thereof. The Rights
Agent shall deliver all cancelled Rights Certificates to the
Company or shall, at the written request of the Company, destroy
such cancelled Rights Certificates and, in such case, shall
deliver a certificate of destruction thereof to the Company.
Section 9. Reservation and Availability of Capital
Stock.
(a) The Company covenants and agrees that it will
cause to be reserved and kept available out of its authorized and
unissued shares of Preferred Stock (and, following the occurrence
of a Triggering Event, out of its authorized and unissued shares
of Common Stock and/or other securities or out of its authorized
and issued shares held in its treasury), the number of shares of
Preferred Stock (and, following the occurrence of a Triggering
Event, Common Stock of the Company, other shares, securities,
cash or other assets) that, as provided in this Agreement
(including Section 11(a)(iii) hereof), will be sufficient to
permit the exercise in full of all outstanding Rights.
(b) So long as the shares of Preferred Stock
(and, following the occurrence of a Triggering Event, Common
Stock, other shares, securities, cash or other assets) issuable
and deliverable upon the exercise of the Rights may be listed on
any national securities exchange, the Company shall use all
reasonable efforts to cause, from and after such time as the
Rights become exercisable, all shares reserved for such issuance
to be listed on such exchange upon official notice of issuance
upon such exercise.
(c) The Company shall use all reasonable efforts
to (i) file, as soon as practicable following the earliest date
after the first occurrence of a Triggering Event in which the
consideration to be delivered by the Company upon exercise of the
Rights has been determined in accordance with Section 11(a)(iii)
hereof, or as soon as is required by law following the
Distribution Date, as the case may be, a registration statement
under the Act with respect to the securities purchasable upon
exercise of the Rights on an appropriate form, (ii) cause such
registration statement to become effective as soon as practicable
after such filing and (iii) cause such registration statement to
remain effective (with a prospectus at all times meeting the
requirements of the Act) until the earlier of (A) the date as of
which the Rights are no longer exercisable for such securities
and (B) the Expiration Date. The Company will also take such
action as may be appropriate under, or to ensure compliance with,
the securities or "blue sky" laws of the various states in
connection with the exercisability of the Rights. The Company
may temporarily suspend, for a period of time not to exceed 90
days after the date set forth in clause (i) of the first sentence
of this Section 9(c), the exercisability of the Rights in order
to prepare and file such registration statement and permit it to
become effective. In the event of any such suspension, the
Company shall issue a public announcement stating that the
exercisability of the Rights has been temporarily suspended and
shall issue a public announcement at such time as the suspension
is no longer in effect. In addition, if the Company shall
determine that a registration statement is required in other
circumstances following the Distribution Date, the Company may
similarly temporarily suspend the exercisability of the Rights
until such time as a registration statement has been declared
effective. Notwithstanding any provision of this Agreement to
the contrary, the Rights shall not be exercisable in any
jurisdiction if the requisite qualification in such jurisdiction
shall not have been obtained, the exercise thereof shall not
otherwise be permitted under applicable law or a registration
statement shall not have been declared effective.
(d) The Company covenants and agrees that it will
take all such action as may be necessary to ensure that all one
ten-thousandths of a share of Preferred Stock (and, following the
occurrence of a Triggering Event, Common Stock or other
securities) delivered upon exercise of Rights shall, at the time
of delivery of the certificates for such shares (subject to
payment of the Purchase Price), be duly and validly authorized
and issued and fully paid and nonassessable.
(e) The Company further covenants and agrees
that, except as set forth in Section 6(a) hereof, it will pay
when due and payable any and all federal and state transfer taxes
and charges which may be payable in respect of the issuance or
delivery of the Rights Certificates and of any certificates for a
number of one ten-thousandths of a share of Preferred Stock (or
Common Stock and/or other securities, as the case may be) upon
the exercise of Rights. The Company shall not, however, be
required to pay any transfer tax which may be payable in respect
of any transfer or delivery of Rights Certificates to a Person
other than, or the issuance or delivery of a number of one ten-
thousandths of a share of Preferred Stock (or Common Stock and/or
other securities, as the case may be) in respect of a name other
than that of, the registered holder of the Rights Certificates
evidencing Rights surrendered for exercise, nor shall the Company
be required to issue or deliver any certificates for a number of
one ten-thousandths of a share of Preferred Stock (or Common
Stock and/or other securities, as the case may be) in a name
other than that of the registered holder upon the exercise of any
Rights until such tax shall have been paid (any such tax being
payable by the holder of such Rights Certificate at the time of
surrender) or until it has been established to the Company's
satisfaction that no such tax is due.
Section 10. Preferred Stock Record Date. Each person
in whose name any certificate for a number of one ten-thousandths
of a share of Preferred Stock (or Common Stock and/or other
securities, as the case may be) is issued upon the exercise of
Rights shall for all purposes be deemed to have become the holder
of record of such fractional shares of Preferred Stock (or Common
Stock and/or other securities, as the case may be) represented
thereby on, and such certificate shall be dated, the date upon
which the Rights Certificate evidencing such Rights was duly
surrendered and payment of the Purchase Price (and all applicable
transfer taxes) was made; provided, however, that if the date of
such surrender and payment is a date upon which the transfer
books for the Preferred Stock (or Common Stock and/or other
securities, as the case may be) of the Company are closed, such
Person shall be deemed to have become the record holder of such
shares (fractional or otherwise) on, and such certificate shall
be dated, the next succeeding Business Day on which the transfer
books for the Preferred Stock (or Common Stock and/or other
securities, as the case may be) of the Company are open. Prior
to the exercise of the Rights evidenced thereby, the holder of a
Rights Certificate, as such, shall not be entitled to any rights
of a stockholder of the Company with respect to shares for which
the Rights shall be exercisable, including, without limitation,
the right to vote, to receive dividends or other distributions or
to exercise any preemptive rights, and shall not be entitled to
receive any notice of any proceedings of the Company, except as
provided herein.
Section 11. Adjustment of Purchase Price, Number and
Kind of Shares or Number of Rights. The Purchase Price, the
number and kind of shares, or fractions thereof, purchasable upon
exercise of each Right and the number of Rights outstanding are
subject to adjustment from time to time as provided in this
Section 11.
(a) (i) In the event the Company shall at any
time after the date of this Agreement (A) declare a
dividend on the Preferred Stock payable in shares of
Preferred Stock, (B) subdivide or split the outstanding
Preferred Stock, (C) combine or consolidate the
outstanding Preferred Stock into a smaller number of
shares or (D) issue any shares of its capital stock in
a reclassification of the Preferred Stock (including
any such reclassification in connection with a
consolidation or merger in which the Company is the
continuing or surviving corporation), except as
otherwise provided in this Section 11(a) and Section
7(e) hereof, the Purchase Price in effect at the time
of the record date for such dividend or of the
effective date of such subdivision, split, combination,
consolidation or reclassification, and the number and
kind of shares of Preferred Stock (or other capital
stock, as the case may be) issuable on such date, shall
be proportionately adjusted so that the holder of any
Right exercised after such time shall be entitled to
receive, upon payment of the Purchase Price then in
effect, the aggregate number and kind of shares of
Preferred Stock or capital stock, as the case may be,
which, if such Right had been exercised immediately
prior to such date and at a time when the transfer
books for the Preferred Stock (or other capital stock,
as the case may be) of the Company were open, he would
have owned upon such exercise and been entitled to
receive by virtue of such dividend, subdivision, split,
combination, consolidation or reclassification. If an
event occurs which would require an adjustment under
both this Section 11(a)(i) and Section 11(a)(ii)
hereof, the adjustment provided for in this Section
11(a)(i) shall be in addition to, and shall be made
prior to, any adjustment required pursuant to Section
11(a)(ii) hereof.
(ii) In the event (a "Section 11(a)(ii)
Event") that any Person (other than an Exempt Person),
alone or together with its Affiliates and Associates,
shall, at any time after the Rights Dividend
Declaration Date, become the Beneficial Owner of 15% or
more of the shares of Common Stock of the Company then
outstanding, unless the event causing the 15% threshold
to be crossed is a transaction set forth in Section
13(a) hereof, or is an acquisition of shares of Common
Stock of the Company pursuant to a tender offer or an
exchange offer for all outstanding shares of Common
Stock of the Company at a price and on terms determined
by at least a majority of the Outside Directors, after
receiving advice from one or more investment banking
firms, to be (a) at a price that is fair to
stockholders (taking into account all factors which
such members of the Board deem relevant including,
without limitation, prices which could reasonably be
achieved if the Company or its assets were sold on an
orderly basis designed to realize maximum value) and
(b) otherwise in the best interests of the Company and
its stockholders, then, promptly after the date of the
occurrence of a Section 11(a)(ii) Event, proper
provision shall be made so that each holder of a Right
(except as provided below and in Section 7(e) hereof)
shall thereafter have the right to receive, upon
exercise thereof at the then current Purchase Price in
accordance with the terms of this Agreement, in lieu of
a number of one ten-thousandths of a share of Preferred
Stock, such number of shares of Common Stock of the
Company as shall equal the result obtained by (x)
multiplying the then current Purchase Price by the then
number of one ten-thousandths of a share of Preferred
Stock for which a Right was exercisable immediately
prior to the first occurrence of a Section 11(a)(ii)
Event (whether or not such Right was then exercisable),
and (y) dividing that product (which, following such
first occurrence, shall thereafter be referred to as
the "Purchase Price" for each Right and for all
purposes of this Agreement) by 50% of the Current
Market Price (determined pursuant to Section 11(d)
hereof) per share of Common Stock of the Company on the
date of such first occurrence (such number of shares
being referred to as the "Adjustment Shares").
(iii) In lieu of issuing any shares of
Common Stock of the Company in accordance with Section
11(a)(ii) hereof, the Company, acting by resolution of
the Board may, and in the event that the number of
shares of Common Stock of the Company which are
authorized by the Company's certificate of
incorporation but not outstanding or reserved for
issuance for purposes other than upon exercise of the
Rights is not sufficient to permit the exercise in full
of the Rights in accordance with the foregoing
subparagraph (ii) of this Section 11(a), the Company,
acting by resolution of the Board, shall: (A)
determine the excess of (1) the value of the Adjustment
Shares issuable upon the exercise of a Right (the
"Current Value") over (2) the Purchase Price
attributable to each Right (such excess being referred
to as the "Spread") and (B) with respect to all or a
portion of each Right (subject to Section 7(e) hereof),
make adequate provision to substitute for the
Adjustment Shares, upon payment of the applicable
Purchase Price, (1) cash, (2) a reduction in the
Purchase Price, (3) equity securities of the Company
other than Common Stock of the Company (including,
without limitation, shares, or units of shares, of
preferred stock which the Board has deemed to have the
same value as shares of Common Stock of the Company
(such shares of preferred stock being referred to as
"Common Stock Equivalents")), (4) debt securities of
the Company, (5) other assets or (6) any combination of
the foregoing which, when added to any shares of Common
Stock of the Company issued upon such exercise, has an
aggregate value equal to the Current Value, where such
aggregate value has been determined by the Board based
upon the advice of a nationally recognized investment
banking firm selected by the Board; provided, however,
if the Company shall not have made adequate provision
to deliver value pursuant to clause (B) above within 30
days following the later of (x) the first occurrence of
a Section 11(a)(ii) Event and (y) the date on which the
Company's right of redemption pursuant to Section 23(a)
expires (the later of (x) and (y) being referred to
herein as the "Section 11(a)(ii) Trigger Date"), then
the Company shall be obligated to deliver, upon the
surrender for exercise of a Right and without requiring
payment of the Purchase Price, shares of Common Stock
of the Company (to the extent available) and then, if
necessary, cash, which shares and/or cash have an
aggregate value equal to the Spread. If the Board
shall determine in good faith that it is likely that
sufficient additional shares of Common Stock of the
Company could be authorized for issuance upon exercise
in full of the Rights, the 30-day period set forth
above may be extended to the extent necessary, but not
more than 90 days after the Section 11(a)(ii) Trigger
Date, in order that the Company may seek stockholder
approval for the authorization of such additional
shares (such period, as it may be extended, the
"Substitution Period"). To the extent that the Company
determines that some action need be taken pursuant to
the first and/or second sentences of this Section
11(a)(iii), the Company (x) shall provide, subject to
Section 7(e) hereof, that such action shall apply
uniformly to all outstanding Rights and (y) may suspend
the exercisability of the Rights until the expiration
of the Substitution Period in order to seek any
authorization of additional shares and/or to decide the
appropriate form of distribution to be made pursuant to
such first sentence and to determine the value thereof.
In the event of any such suspension, the Company shall
issue a public announcement stating that the
exercisability of the Rights has been temporarily
suspended and a public announcement at such time as the
suspension is no longer in effect. For purposes of
this Section 11(a)(iii), the value of the Common Stock
of the Company shall be the Current Market Price (as
determined pursuant to Section 11(d) hereof) per share
of the Common Stock of the Company on the Section
11(a)(ii) Trigger Date and the value of any "Common
Stock Equivalent" shall be deemed to have the same
value as the Common Stock of the Company on such date.
(b) In case the Company shall fix a record
date for the issuance of rights, options or warrants to all
holders of Preferred Stock entitling them to subscribe for
or purchase (for a period expiring within 45 calendar days
after such record date) Preferred Stock (or shares having
the same rights, privileges and preferences as the shares of
Preferred Stock ("Equivalent Preferred Stock")) or
securities convertible into Preferred Stock or Equivalent
Preferred Stock at a price per share of Preferred Stock or
per share of Equivalent Preferred Stock (or having a
conversion price per share, if a security convertible into
Preferred Stock or Equivalent Preferred Stock) less than the
Current Market Price (as determined pursuant to Section
11(d) hereof) per share of Preferred Stock on such record
date, the Purchase Price to be in effect after such record
date shall be determined by multiplying the Purchase Price
in effect immediately prior to such record date by a
fraction, the numerator of which shall be the number of
shares of Preferred Stock outstanding on such record date,
plus the number of shares of Preferred Stock which the
aggregate subscription or purchase price of the total number
of shares of Preferred Stock and/or Equivalent Preferred
Stock so to be offered (and/or the aggregate initial
conversion price of the convertible securities so to be
offered) would purchase at such Current Market Price, and
the denominator of which shall be the number of shares of
Preferred Stock outstanding on such record date, plus the
number of additional shares of Preferred Stock and/or
Equivalent Preferred Stock to be offered for subscription or
purchase (or into which the convertible securities so to be
offered are initially convertible). In case such
subscription price may be paid by delivery of consideration
part or all of which may be in a form other than cash, the
value of such consideration shall be as determined in good
faith by the Board, whose determination shall be described
in a statement filed with the Rights Agent and shall be
conclusive for all purposes. Shares of Preferred Stock
owned by or held for the account of the Company shall not be
deemed outstanding for the purpose of any such computation.
Such adjustment shall be made successively whenever such a
record date is fixed, and in the event that such rights,
options or warrants are not so issued, the Purchase Price
shall be adjusted to be the Purchase Price which would then
be in effect if such record date had not been fixed.
(c) In case the Company shall fix a record
date for a distribution to all holders of Preferred Stock
(including any such distribution made in connection with a
consolidation or merger in which the Company is the
continuing or surviving corporation) of evidences of
indebtedness, cash (other than a regular, periodic cash
dividend out of the earnings or retained earnings of the
Company), assets (other than a dividend payable in Preferred
Stock, but including any dividend payable in stock other
than Preferred Stock) or subscription rights or warrants
(excluding those referred to in Section 11(b) hereof), the
Purchase Price to be in effect after such record date shall
be determined by multiplying the Purchase Price in effect
immediately prior to such record date by a fraction, the
numerator of which shall be the Current Market Price (as
determined pursuant to Section 11(d) hereof) per share of
Preferred Stock on such record date, less the fair market
value (as determined in good faith by the Board, whose
determination shall be described in a statement filed with
the Rights Agent and shall be conclusive for all purposes)
of the portion of the cash, assets or evidences of
indebtedness so to be distributed or of such subscription
rights or warrants applicable to a share of Preferred Stock
and the denominator of which shall be such Current Market
Price (as determined pursuant to Section 11(d) hereof) per
share of Preferred Stock. Such adjustments shall be made
successively whenever such a record date is fixed, and in
the event that such distribution is not so made, the
Purchase Price shall be adjusted to be the Purchase Price
which would have been in effect if such record date had not
been fixed.
(d) (i) For the purpose of any
computation hereunder, other than computations
made pursuant to Section 11(a)(iii) hereof, the
"Current Market Price" per share of Common Stock
on any date shall be deemed to be the average of
the daily closing prices per share of such Common
Stock for the 30 consecutive Trading Days (as such
term is hereinafter defined) immediately prior to
such date, and for purposes of computations made
pursuant to Section 11(a)(iii) hereof, the
"Current Market Price" per share of Common Stock
on any date shall be deemed to be the average of
the daily closing prices per share of such Common
Stock for the 10 consecutive Trading Days
immediately following such date; provided,
however, that in the event that the Current Market
Price per share of the Common Stock is determined
during a period following the announcement by the
issuer of such Common Stock of (A) a dividend or
distribution on such Common Stock payable in
shares of such Common Stock or securities
convertible into shares of such Common Stock
(other than the Rights) or (B) any subdivision,
combination, consolidation, reverse stock split or
reclassification of such Common Stock, and prior
to the expiration of the requisite 30-Trading Day
or 10-Trading Day period, as set forth above,
after the ex-dividend date for such dividend or
distribution, or the record date for such
subdivision, combination, consolidation, reverse
stock split or reclassification, then, and in each
such case, the "Current Market Price" shall be
properly adjusted to take into account ex-dividend
trading. The closing price for each day shall be
the last sale price, regular way, or, in case no
such sale takes place on such day, the average of
the closing bid and asked prices, regular way, in
either case as reported in the principal
consolidated transaction reporting system with
respect to securities listed or admitted to
trading on the New York Stock Exchange or, if the
shares of Common Stock are not listed or admitted
to trading on the New York Stock Exchange, as
reported in the principal consolidated transaction
reporting system or by the Nasdaq National Market
with respect to securities listed or admitted to
trading on another national securities exchange or
quoted by the Nasdaq National Market,
respectively, or, if the shares of Common Stock
are not listed or admitted to trading on any
national securities exchange or quoted by the
Nasdaq National Market, the last quoted price or,
if not so quoted, the average of the high bid and
low asked prices in the over-the-counter market,
as reported by The Nasdaq Stock Market or such
other quotation system then in use, or, if on any
such date the shares of Common Stock are not
quoted by any such organization, the average of
the closing bid and asked prices as furnished by a
professional market maker making a market in the
Common Stock selected by the Board. If on any
such date the Common Stock is not publicly held or
so listed, admitted to trading or quoted, and no
market maker is making a market in the Common
Stock, "Current Market Price" shall mean the fair
value of such shares on such date as determined in
good faith by the Board, whose determination shall
be described in a statement filed with the Rights
Agent and shall be conclusive for all purposes.
The term "Trading Day" shall mean a day on which
the principal national securities exchange on
which the shares of Common Stock are listed or
admitted to trading is open for the transaction of
business or, if the shares of Common Stock are not
listed or admitted to trading on any national
securities exchange, a Business Day.
(ii) For the purpose of any
computation hereunder, the "Current Market Price"
per share of Preferred Stock shall be determined
in the same manner as set forth above for the
Common Stock in clause (i) of this Section 11(d)
(other than the penultimate sentence thereof). If
the Current Market Price per share of Preferred
Stock cannot be determined in the manner provided
above or if the Preferred Stock is not publicly
held or listed or admitted to trading or quoted in
a manner described in clause (i) of this Section
11(d), the "Current Market Price" per share of
Preferred Stock shall be conclusively deemed to be
an amount equal to 10,000 (as such number may be
appropriately adjusted for such events as stock
splits, stock dividends and recapitalizations with
respect to the Common Stock occurring after the
date of this Agreement) multiplied by the Current
Market Price per share of the Common Stock. If
neither the Common Stock nor the Preferred Stock
is publicly held or so listed or admitted to
trading or quoted, "Current Market Price" per
share of the Preferred Stock shall mean the fair
value per share as determined in good faith by the
Board, whose determination shall be described in a
statement filed with the Rights Agent and shall be
conclusive for all purposes. For all purposes of
this Agreement, the "Current Market Price" of one
ten-thousandth of a share of Preferred Stock shall
be equal to the "Current Market Price" of one
share of Preferred Stock divided by 10,000.
(e) Anything herein to the contrary
notwithstanding, no adjustment in the Purchase Price shall be
required unless such adjustment would require an increase or
decrease of at least one percent in the Purchase Price; provided,
however, that any adjustments which by reason of this Section
11(e) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment. All
calculations under this Section 11 shall be made to the nearest
one cent or to the nearest one ten-thousandth of a share of
Common Stock or other share or one one-hundred-millionth of a
share of Preferred Stock, as the case may be. Notwithstanding
the first sentence of this Section 11(e), any adjustment required
by this Section 11 shall be made no later than the earlier of (i)
three years from the date of the transaction which mandates such
adjustments or (ii) the Expiration Date.
(f) If as a result of an adjustment made pursuant
to Section 11(a)(ii) or Section 13(a) hereof, the holder of any
Right thereafter exercised shall become entitled to receive any
shares of capital stock other than Preferred Stock, thereafter
the number of such other shares so receivable upon exercise of
any Right and the Purchase Price thereof (or the number of
Rights) shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the
provisions with respect to the Preferred Stock contained in
Sections 11(a), (b), (c), (e), (g), (h), (i), (j), (k), (l) and
(m), and the provisions of Sections 7, 9, 10, 13 and 14 hereof
with respect to the Preferred Stock shall apply on like terms to
any such other shares; provided, however, that the Company shall
not be liable for its inability to reserve and keep available for
issuance upon exercise of the Rights pursuant to Section
11(a)(ii) a number of shares of Common Stock of the Company
greater than the number then authorized by the Company's
certificate of incorporation, but not outstanding or reserved for
any other purpose.
(g) All Rights originally issued by the Company
subsequent to any adjustment made to the Purchase Price hereunder
shall evidence the right to purchase, at the adjusted Purchase
Price, the number of one ten-thousandth of a share of Preferred
Stock purchasable from time to time hereunder upon exercise of
the Rights, all subject to further adjustment as provided herein.
(h) Unless the Company shall have exercised its
election as provided in Section 11(i), upon each adjustment of
the Purchase Price as a result of the calculations made in
Sections 11(b) and (c), each Right outstanding immediately prior
to the making of such adjustment shall thereafter evidence the
right to purchase, at the adjusted Purchase Price, that number of
one ten-thousandths of a share of Preferred Stock (calculated to
the nearest one one-hundred-millionth of a share) obtained by (i)
multiplying (x) the number of one ten-thousandths of a share
covered by a Right immediately prior to this adjustment by (y)
the Purchase Price in effect immediately prior to such adjustment
of the Purchase Price and (ii) dividing the product so obtained
by the Purchase Price in effect immediately after such adjustment
of the Purchase Price.
(i) The Company may elect on or after the date of
any adjustment of the Purchase Price to adjust the number of
Rights, in lieu of any adjustment in the number of one ten-
thousandths of a share of Preferred Stock purchasable upon the
exercise of a Right. Each of the Rights outstanding after the
adjustment in the number of Rights shall be exercisable for the
number of one ten-thousandths of a share of Preferred Stock for
which a Right was exercisable immediately prior to such
adjustment. Each Right held of record prior to such adjustment
of the number of Rights shall become that number of Rights
(calculated to the nearest one ten-thousandth) obtained by
dividing the Purchase Price in effect immediately prior to
adjustment of the Purchase Price by the Purchase Price in effect
immediately after adjustment of the Purchase Price. The Company
shall make a public announcement of its election to adjust the
number of Rights, indicating the record date for the adjustment
and, if known at the time, the amount of the adjustment to be
made. This record date may be the date on which the Purchase
Price is adjusted or any day thereafter, but if the Rights
Certificates have been issued, shall be at least 10 days later
than the date of the public announcement. If Rights Certificates
have been issued, upon each adjustment of the number of Rights
pursuant to this Section 11(i), the Company shall, as promptly as
practicable, cause to be distributed to holders of record of
Rights Certificates on such record date Rights Certificates
evidencing, subject to Section 14 hereof, the additional Rights
to which such holders shall be entitled as a result of such
adjustment or, at the option of the Company, shall cause to be
distributed to such holders of record in substitution and
replacement for the Rights Certificates held by such holders
prior to the date of adjustment, and upon surrender thereof, if
required by the Company, new Rights Certificates evidencing all
the Rights to which such holders shall be entitled after such
adjustment. Rights Certificates so to be distributed shall be
issued, executed and countersigned in the manner provided for
herein (and may bear, at the option of the Company, the adjusted
Purchase Price) and shall be registered in the names of the
holders of record of Rights Certificates on the record date
specified in the public announcement.
(j) Irrespective of any adjustment or change in
the Purchase Price or the number of one ten-thousandths of a
share of Preferred Stock issuable upon the exercise of the
Rights, the Rights Certificates theretofore and thereafter issued
may continue to express the Purchase Price per one ten-thousandth
of a share and the number of one ten-thousandths of a share which
were expressed in the initial Rights Certificates issued
hereunder.
(k) Before taking any action that would cause an
adjustment reducing the Purchase Price below the then stated
value, if any, of the number of one ten-thousandths of a share of
Preferred Stock issuable upon exercise of the Rights, the Company
shall use all reasonable efforts to take any corporate action
which may, in the opinion of its counsel, be necessary in order
that the Company may validly and legally issue fully paid and
nonassessable such number of one ten-thousandths of a share of
Preferred Stock at such adjusted Purchase Price.
(l) In any case in which this Section 11 shall
require that an adjustment in the Purchase Price be made
effective as of a record date for a specified event, the Company
may elect to defer until the occurrence of such event the
issuance to the holder of any Right exercised after such record
date the number of one ten-thousandths of a share of Preferred
Stock and other capital stock or securities of the Company, if
any, issuable upon such exercise over and above the number of one
ten-thousandths of a share of Preferred Stock and other capital
stock or securities of the Company, if any, issuable upon such
exercise on the basis of the Purchase Price in effect prior to
such adjustment; provided, however, that the Company shall
deliver to such holder a due xxxx or other appropriate instrument
evidencing such holder's right to receive such additional shares
(fractional or otherwise) or securities upon the occurrence of
the event requiring such adjustment.
(m) Anything in this Section 11 to the contrary
notwithstanding, the Company shall be entitled to make such
adjustments in the Purchase Price, in addition to those
adjustments expressly required by this Section 11, as and to the
extent that in its good faith judgment the Board shall determine
to be advisable in order that any (i) consolidation or
subdivision of the Preferred Stock, (ii) issuance wholly for cash
of any shares of Preferred Stock at less than the Current Market
Price, (iii) issuance wholly for cash of shares of Preferred
Stock or securities which by their terms are convertible into or
exchangeable for shares of Preferred Stock, (iv) stock dividends
or (v) issuance of rights, options or warrants referred to in
this Section 11 hereafter made by the Company to holders of its
Preferred Stock shall not be taxable to such stockholders.
(n) The Company covenants and agrees that it
shall not, at any time after the Distribution Date, (i)
consolidate with any other Person (other than a Subsidiary of the
Company in a transaction which complies with Section 11(o)
hereof), (ii) merge with or into any other Person (other than a
Subsidiary of the Company in a transaction which complies with
Section 11(o) hereof) or (iii) sell or transfer (or permit any
Subsidiary to sell or transfer), in one transaction or a series
of related transactions, assets or earning power aggregating more
than 50% of the assets or earning power of the Company and its
Subsidiaries (taken as a whole) to any other Person or Persons
(other than the Company and/or any of its Subsidiaries in one or
more transactions each of which complies with Section 11(o)
hereof) if (x) at the time of or immediately after such
consolidation, merger, sale or transfer there are any rights,
warrants or other instruments or securities outstanding or
agreements in effect which would substantially diminish or
otherwise eliminate the benefits intended to be afforded by the
Rights or (y) prior to, simultaneously with or immediately after
such consolidation, merger, sale or transfer, the stockholders of
the Person who constitutes, or would constitute, the "Principal
Party" for purposes of Section 13(a) hereof shall have received a
distribution of Rights previously owned by such Person or any of
its Affiliates and Associates.
(o) The Company covenants and agrees that, after
the Distribution Date, it will not, except as permitted by
Section 23 or Section 26 hereof, take (or permit any Subsidiary
to take) any action if at the time such action is taken it is
reasonably foreseeable that such action will diminish
substantially or otherwise eliminate the benefits intended to be
afforded by the Rights.
(p) Anything in this Agreement to the contrary
notwithstanding, in the event that the Company shall at any time
after the Rights Dividend Declaration Date and prior to the
Distribution Date (i) declare a dividend on the outstanding
shares of Common Stock of the Company payable in shares of Common
Stock of the Company, (ii) subdivide the outstanding shares of
Common Stock of the Company in a manner not covered by clause (i)
of this Section 11(p) or (iii) combine or consolidate the
outstanding shares of Common Stock of the Company into a smaller
number of shares, the number of Rights associated with each share
of Common Stock of the Company then outstanding, or issued or
delivered thereafter but prior to the Distribution Date, shall be
proportionately adjusted so that the number of Rights thereafter
associated with each share of Common Stock of the Company
following any such event shall equal the result obtained by
multiplying the number of Rights associated with each share of
Common Stock of the Company immediately prior to such event by a
fraction the numerator of which shall be the total number of
shares of Common Stock of the Company outstanding immediately
prior to the occurrence of the event and the denominator of which
shall be the total number of shares of Common Stock of the
Company outstanding immediately following the occurrence of such
event. Anything in this Agreement to the contrary
notwithstanding, the number of Rights associated with each share
of Series C Preferred Stock issued or delivered prior to the
Distribution Date shall be proportionately adjusted, if the
number of Rights associated with each share of Common Stock is
adjusted as stated in the preceding sentence, as may be necessary
to ensure that the number of Rights associated with each
outstanding share of Series C Preferred Stock shall be, at all
times, equal to the number of shares of Common Stock of the
Company into which the Series C Preferred Stock is then
convertible, multiplied by the number of Rights then associated
with each such share of Common Stock of the Company; provided
that the number of shares of Common Stock into which a share of
Series C Preferred Stock is convertible at any time shall be
determined without regard to whether the holder would be entitled
to exercise his conversion rights at such time.
Section 12. Certificate of Adjusted Purchase Price or
Number of Shares. Whenever an adjustment is made as provided in
Section 11 and Section 13 hereof, the Company shall (a) promptly
prepare a certificate setting forth such adjustment and a brief
statement of the facts accounting for such adjustment, (b)
promptly file with the Rights Agent, and with each transfer agent
for the Preferred Stock, the Series C Preferred Stock and the
Common Stock of the Company, a copy of such certificate and (c)
mail a brief summary thereof to each holder of a Rights
Certificate (or, if prior to the Distribution Date, to each
holder of a certificate representing shares of Common Stock of
the Company or Series C Preferred Stock, as the case may be) in
accordance with Section 25 hereof. Notwithstanding the foregoing
sentence, the failure of Company to prepare such certificate or
statement or make such filings or mailing shall not affect the
validity of, or the force or effect of, the requirement for such
adjustment. The Rights Agent shall be fully protected in relying
on any such certificate and on any adjustment therein contained
and shall not be deemed to have knowledge of any such adjustment
unless and until it shall have received such certificate.
Section 13. Consolidation, Merger or Sale or Transfer
of Assets or Earning Power.
(a) In the event (a "Section 13 Event") that, on
or after the Stock Acquisition Date, directly or indirectly, (x)
the Company shall consolidate or otherwise combine with, or merge
with or into, any other Person (other than a Subsidiary of the
Company in a transaction which complies with Section 11(o)
hereof) and the Company shall not be the continuing or surviving
corporation of such consolidation, combination or merger, (y) any
Person or Persons (other than a Subsidiary of the Company in a
transaction which complies with Section 11(o) hereof) shall
consolidate or otherwise combine with, or merge with or into, the
Company and the Company shall be the continuing or surviving
corporation of such consolidation, combination or merger and, in
connection with such consolidation, combination or merger, all or
part of the outstanding shares of Common Stock of the Company
shall be changed into or exchanged for stock or other securities
of any other Person or Persons or cash or any other property or
(z) the Company shall sell or otherwise transfer (or one or more
of its Subsidiaries shall sell or otherwise transfer), in one
transaction or a series of related transactions, assets or
earning power aggregating more than 50% of the assets or earning
power of the Company and its Subsidiaries (taken as a whole) to
any Person or Persons (other than the Company or any Subsidiary
of the Company in one or more transactions each of which complies
with Section 11(o) hereof); provided, however, that this clause
(z) of Section 13(a) hereof shall not apply to the pro rata
distribution by the Company of assets (including securities) of
the Company or any of its Subsidiaries to all holders of the
Company's Common Stock; then, and in each such case (except as
may be contemplated by Section 13(d) hereof), proper provision
shall be made so that: (i) each holder of a Right, except as
provided in Section 7(e) hereof, shall thereafter have the right
to receive, upon the exercise thereof at the then current
Purchase Price in accordance with the terms of this Agreement,
such number of validly authorized and issued, fully paid,
nonassessable and freely tradeable shares of Common Stock of the
Principal Party (as such term is hereinafter defined), not
subject to any liens, encumbrances, rights of first refusal or
other adverse claims, as shall be equal to the result obtained by
(1) multiplying the then current Purchase Price by the number of
one ten-thousandths of a share of Preferred Stock for which a
Right is exercisable immediately prior to the first occurrence of
a Section 13 Event (or, if a Section 11(a)(ii) Event has occurred
prior to the first occurrence of a Section 13 Event, multiplying
the number of one ten-thousandths of a share for which a Right
was exercisable immediately prior to the first occurrence of a
Section 11(a)(ii) Event by the Purchase Price in effect
immediately prior to such first occurrence), and (2) dividing
that product (which, following the first occurrence of a Section
13 Event, shall be referred to as the "Purchase Price" for each
Right and for all purposes of this Agreement) by 50% of the
Current Market Price per share of the Common Stock of such
Principal Party on the date of consummation of such Section 13
Event; (ii) the shares of Common Stock of such Principal Party
received by each holder of a Right upon exercise of that Right
shall be fully paid and nonassessable; (iii) such Principal Party
shall thereafter be liable for, and shall assume, by virtue of
such Section 13 Event, all the obligations and duties of the
Company pursuant to this Agreement; (iv) the term "Company" shall
thereafter be deemed to refer to such Principal Party, it being
specifically intended that the provisions of Section 11 hereof
shall apply only to such Principal Party following the first
occurrence of a Section 13 Event; (v) such Principal Party shall
take such steps (including, but not limited to, the reservation
of a sufficient number of shares of its Common Stock) in
connection with the consummation of any such transaction as may
be necessary to assure that the provisions hereof shall
thereafter be applicable, as nearly as reasonably may be, in
relation to its shares of Common Stock thereafter deliverable
upon the exercise of the Rights; and (vi) the provisions of
Section 11(a)(ii) hereof shall be of no effect following the
first occurrence of any Section 13 Event.
(b) "Principal Party" shall mean
(i) in the case of any transaction
described in clause (x) or (y) of the first sentence of
Section 13(a) hereof, (A) the Person that is the issuer
of any securities into which shares of Common Stock of
the Company are converted, changed or exchanged in such
merger, consolidation or combination or, if there is
more than one such issuer, the issuer the Common Stock
of which has the greatest market value or (B) if no
securities are so issued, the Person that is the other
party to such merger (and survives the merger),
consolidation or combination (or, if there is more than
one such Person, the Person the Common Stock of which
has the greatest value), or if the other party to the
merger does not survive the merger, the Person that
does survive the merger (including the Company, if it
survives); and
(ii) in the case of any transaction
described in clause (z) of the first sentence of
Section 13(a), the Person that is the party receiving
the greatest portion of the assets or earning power
transferred pursuant to such transaction or
transactions or, if each Person that is a party to such
transaction or transactions receives the same portion
of the assets or earning power so transferred or if the
Person receiving the greatest portion of the assets or
earning power cannot be determined, whichever of such
Persons is the issuer of Common Stock having the
greatest market value;
provided, however, that in any such case, (1) if the Common Stock
of such Person is not at such time and has not been continuously
over the preceding 12-month period registered under Section 12 of
the Exchange Act, and such Person is a direct or indirect
Subsidiary of another Person the Common Stock of which is and has
been so registered, "Principal Party" shall refer to such other
Person; (2) if the Common Stock of such Person is not and has not
been so registered and such Person is a Subsidiary, directly or
indirectly, of more than one Person, the Common Stocks of two or
more of which are and have been so registered, "Principal Party"
shall refer to whichever of such Persons is the issuer of the
Common Stock having the greatest aggregate market value; and (3)
if the Common Stock of such Person is not and has not been so
registered and such Person is owned, directly or indirectly, by a
joint venture formed by two or more Persons that are not owned,
directly or indirectly, by the same Person, the rules set forth
in (1) and (2) above shall apply to each of the chains of
ownership having an interest in such joint venture as if such
party were a Subsidiary of both or all of such joint ventures,
and the Principal Parties in each such chain shall bear the
obligations set forth in this Section 13 in the same ratio as
their direct or indirect interests in such Person bear to the
total of such interest.
(c) The Company shall not consummate any such
Section 13 Event unless the Principal Party shall have a
sufficient number of authorized shares of its Common Stock which
have not been issued or reserved for issuance to permit the
exercise in full of the Rights in accordance with this Section 13
and unless prior thereto the Company and such Principal Party
shall have executed and delivered to the Rights Agent a
supplemental agreement confirming that the requirements of
Section 13(a) and Section 13(b) hereof shall promptly be
performed in accordance with their terms and that such Section 13
Event shall not result in a default by the Principal Party under
this Agreement as the same shall have been assumed by the
Principal Party pursuant to Section 13(a) and Section 13(b)
hereof and further providing that, as soon as practicable after
the date of such Section 13 Event, the Principal Party will:
(i) prepare and file a registration
statement under the Act, with respect to the Rights and
the securities purchasable upon exercise of the Rights
on an appropriate form, and will use its best efforts
to cause such registration statement to (A) become
effective as soon as practicable after such filing and
(B) remain effective (with a prospectus at all times
meeting the requirements of the Act) until the
Expiration Date and to similarly comply with applicable
state securities laws;
(ii) use its best efforts to list or
obtain quotation of (or continue the listing or
quotation of) the Rights and the securities purchasable
upon exercise of the Rights on a national securities
exchange or automated quotation service;
(iii) deliver to holders of the Rights
historical financial statements for the Principal Party
and each of its Affiliates which comply in all respects
with the requirements for registration on Form 10 (or
any successor form) under the Exchange Act; and
(iv) use its best efforts to obtain
waivers of any rights of first refusal or preemptive
rights in respect of the shares of Common Stock of the
Principal Party subject to purchase upon exercise of
outstanding Rights.
The provisions of this Section 13 shall similarly apply to
successive mergers, consolidations, combinations or sales or
other transfers. In the event that a Section 13 Event shall
occur at any time after the occurrence of a Section 11(a)(ii)
Event, the Rights which have not theretofore been exercised shall
thereafter become exercisable in the manner described in Section
13(a).
(d) Notwithstanding anything in this Agreement to
the contrary, Section 13 hereof shall not be applicable to a
transaction described in subparagraph (x) or (y) of Section 13(a)
if (i) such transaction is consummated with a Person or Persons
(or a wholly owned Subsidiary of any such Person or Persons) who
acquired shares of Common Stock of the Company pursuant to a
tender offer or exchange offer for all outstanding shares of
Common Stock of the Company which complies with the exception
provided for in Section 11(a)(ii) hereof, (ii) the price per
share of Common Stock of the Company offered in such transaction
is not less than the price per share of Common Stock of the
Company paid to all holders of shares of Common Stock of the
Company whose shares were purchased pursuant to such tender offer
or exchange offer and (iii) the form of consideration being
offered to the remaining holders of shares of Common Stock of the
Company pursuant to such transaction is the same as the form of
consideration paid pursuant to such tender offer or exchange
offer. Upon consummation of any such transaction contemplated by
this Section 13(d), all Rights hereunder shall expire.
Section 14. Fractional Rights and Fractional Shares.
(a) The Company shall not be required to issue
fractions of Rights, except prior to the Distribution Date as
provided in Section 11(p) hereof, or to distribute Rights
Certificates which evidence fractional Rights. In lieu of any
such fractional Rights, there shall be paid to the registered
holders of the Rights Certificates with regard to which such
fractional Rights would otherwise be issuable, an amount in cash
equal to the same fraction of the current market value of a whole
Right. For purposes of this Section 14(a), the current market
value of a whole Right shall be the closing price of the Rights
for the Trading Day immediately prior to the date on which such
fractional Rights would have been otherwise issuable. The
closing price of the Rights for any Trading Day shall be the last
sale price, regular way, or, in case no such sale takes place on
such day, the average of the closing bid and asked prices,
regular way, in either case as reported in the principal
consolidated transaction reporting system with respect to
securities listed or admitted to trading on the New York Stock
Exchange or, if the Rights are not listed or admitted to trading
on the New York Stock Exchange, as reported in the principal
consolidated transaction reporting system or the Nasdaq National
Market with respect to securities listed on another national
securities exchange or quoted by the Nasdaq National Market,
respectively, or if the Rights are not listed or admitted to
trading on any national securities exchange or quoted by the
Nasdaq National Market, the last quoted price or, if not so
quoted, the average of the high bid and low asked prices in the
over-the-counter market, as reported by The Nasdaq Stock Market
or such other quotation system then in use or, if on any such
date the Rights are not quoted by any such organization, the
average of the closing bid and asked prices as furnished by a
professional market maker making a market in the Rights selected
by the Board. If on any such date no such market maker is making
a market in the Rights, the fair value of the Rights on such date
as determined in good faith by the Board shall be used.
(b) The Company shall not be required to issue
fractions of shares of Preferred Stock (other than fractions
which are integral multiples of one ten-thousandth of a share of
Preferred Stock) upon exercise of the Rights or to distribute
certificates which evidence fractional shares of Preferred Stock
(other than fractions which are integral multiples of one ten-
thousandth of a share of Preferred Stock). In lieu of fractional
shares of Preferred Stock that are not integral multiples of one
ten-thousandth of a share of Preferred Stock, the Company may pay
to the registered holders of Rights Certificates at the time such
Rights are exercised as herein provided an amount in cash equal
to the same fraction of the current market value of one ten-
thousandth of a share of Preferred Stock. For purposes of this
Section 14(b), the current market value of one ten-thousandth of
a share of Preferred Stock shall be one ten-thousandth of the
closing price of a share of Preferred Stock (as determined
pursuant to Section 11(d)(ii) hereof) for the Trading Day
immediately prior to the date of such exercise.
(c) Following the occurrence of a Triggering
Event, the Company shall not be required to issue fractions of
shares of Common Stock of the Company upon exercise of the Rights
or to distribute certificates which evidence fractional shares of
Common Stock of the Company. In lieu of fractional shares of
Common Stock of the Company, the Company may pay to the
registered holders of Rights Certificates at the time such Rights
are exercised as herein provided an amount in cash equal to the
same fraction of the current market value of one share of Common
Stock of the Company. For purposes of this Section 14(c), the
current market value of one share of Common Stock of the Company
shall be the closing price of one share of Common Stock of the
Company or, if unavailable, the appropriate alternative price (in
each case, as determined pursuant to Section 11(d)(i) hereof),
for the Trading Day immediately prior to the date of such
exercise.
(d) The holder of a Right by the acceptance of
that Right expressly waives his right to receive any fractional
Rights or any fractional shares upon exercise of a Right, except
as permitted by this Section 14.
Section 15. Rights of Action. All rights of action in
respect of this Agreement, other than rights of action vested in
the Rights Agent in Section 18 hereof, are vested in the
respective registered holders of the Rights Certificates (and,
prior to the Distribution Date, the registered holders of the
Common Stock of the Company and the Series C Preferred Stock);
and any registered holder of any Rights Certificate (or, prior to
the Distribution Date, of the Common Stock of the Company or
Series C Preferred Stock), without the consent of the Rights
Agent or of the holder of any other Rights Certificate (or, prior
to the Distribution Date, of the Common Stock of the Company or
Series C Preferred Stock), may, in his own behalf and for his own
benefit, enforce, and may institute and maintain any suit, action
or proceeding against the Company to enforce, or otherwise act in
respect of, his right to exercise the Rights evidenced by such
Rights Certificate in the manner provided in such Rights
Certificate and in this Agreement. Without limiting the
foregoing or any remedies available to the holders of Rights, it
is specifically acknowledged that the holders of Rights would not
have an adequate remedy at law for any breach of this Agreement
and shall be entitled to specific performance of the obligations
hereunder and injunctive relief against actual or threatened
violations of the obligations hereunder of any Person subject to
this Agreement.
Section 16. Agreement of Rights Holders. Every holder
of a Right by accepting the same consents and agrees with the
Company and the Rights Agent and with every other holder of a
Right that:
(a) prior to the Distribution Date, the Rights
will be transferable only in connection with the transfer of
shares of Common Stock of the Company and Series C Preferred
Stock;
(b) after the Distribution Date, the Rights
Certificates are transferable only on the registry books of the
Rights Agent if surrendered at the office of the Rights Agent
designated for such purposes, duly endorsed or accompanied by a
proper instrument of transfer and with the appropriate forms and
certificates fully executed;
(c) subject to Section 6(a) and Section 7(f)
hereof, the Company and the Rights Agent may deem and treat the
person in whose name a Rights Certificate (or, prior to the
Distribution Date, the associated certificate for Common Stock of
the Company or Series C Preferred Stock, as the case may be) is
registered as the absolute owner thereof and of the Rights
evidenced thereby (notwithstanding any notations of ownership or
writing on the Rights Certificates or the associated certificate
for Common Stock of the Company or Series C Preferred Stock, as
the case may be, made by anyone other than the Company or the
Rights Agent) for all purposes whatsoever, and neither the
Company nor the Rights Agent, subject to the last sentence of
Section 7(e) hereof, shall be required to be affected by any
notice to the contrary; and
(d) notwithstanding anything in this Agreement to
the contrary, neither the Company nor the Rights Agent shall have
any liability to any holder of a Right or other Person as a
result of its inability to perform any of its obligations under
this Agreement by reason of any preliminary or permanent
injunction or other order, decree or ruling issued by a court of
competent jurisdiction or by a governmental, regulatory or
administrative agency or commission, or any statute, rule,
regulation or executive order promulgated or enacted by any
governmental authority, prohibiting or otherwise restraining
performance of such obligation; provided, however, that the
Company must use all reasonable efforts to have any such order,
decree or ruling lifted or otherwise overturned as soon as
possible.
Section 17. Rights Certificate Holder Not Deemed a
Stockholder. No holder, as such, of any Rights Certificate shall
be entitled to vote, receive dividends or be deemed for any
purpose the holder of the number of one ten-thousandths of a
share of Preferred Stock or any other securities of the Company
which may at any time be issuable upon the exercise of the Rights
represented thereby, nor shall anything contained herein or in
any Rights Certificate be construed to confer upon the holder of
any Rights Certificate, as such, any of the rights of a
stockholder of the Company or any right to vote for the election
of directors or upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate
action, or to receive notice of meetings or other actions
affecting stockholders (except as provided in Section 24 hereof),
or to receive dividends or subscription rights, or otherwise,
until the Right or Rights evidenced by such Rights Certificate
shall have been exercised in accordance with the provisions
hereof.
Section 18. Concerning the Rights Agent.
(a) The Company agrees to pay to the Rights Agent
reasonable compensation for all services rendered by it hereunder
and, from time to time, on demand of the Rights Agent, its
reasonable expenses and counsel fees and disbursements and other
disbursements incurred in the administration and execution of
this Agreement and the exercise and performance of its duties
hereunder. The Company also agrees to indemnify the Rights Agent
for, and to hold it harmless against, any loss, liability, or
expense, incurred without negligence, bad faith or willful
misconduct on the part of the Rights Agent, for anything done or
omitted by the Rights Agent in connection with the acceptance and
administration of this Agreement, including the costs and
expenses of defending against any claim 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 Rights Certificate or
certificate for Common Stock of the Company, Series C Preferred
Stock or other securities of the Company or upon any instrument
of assignment or transfer, power of attorney, endorsement,
affidavit, letter, notice, direction, consent, certificate,
statement or other paper or document reasonably believed by it to
be genuine and to be signed, executed and, where necessary,
verified or acknowledged, by the proper Person or Persons.
Section 19. 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, or any corporation resulting from any merger or
consolidation to which the Rights Agent or any successor Rights
Agent shall be a party, or any corporation succeeding to the
corporate trust or stock transfer business of the Rights Agent or
any successor Rights Agent, shall be the successor to the Rights
Agent under this Agreement without the execution or filing of any
paper or any further act on the part of any of the parties
hereto; provided, however, that such corporation would be
eligible for appointment as a successor Rights Agent under the
provisions of Section 21 hereof. If at the time such successor
Rights Agent shall succeed to the agency created by this
Agreement, any of the Rights Certificates shall have been
countersigned but not delivered, any such successor Rights Agent
may adopt the countersignature of a predecessor Rights Agent and
deliver such Rights Certificates so countersigned; and if at that
time any of the Rights Certificates shall not have been
countersigned, any successor Rights Agent may countersign such
Rights Certificates either in the name of the predecessor or in
the name of the successor Rights Agent; and in all such cases
such Rights Certificates shall have the full force provided in
the Rights Certificates and in this Agreement.
(b) If at any time the name of the Rights Agent
shall be changed and at such time any of the Rights Certificates
shall have been countersigned but not delivered, the Rights Agent
may adopt the countersignature under its prior name and deliver
Rights Certificates so countersigned; and if at that time any of
the Rights Certificates shall not have been countersigned, the
Rights Agent may countersign such Rights Certificates either in
its prior name or in its changed name; and in all such cases such
Rights Certificates shall have the full force provided in the
Rights Certificates and in this Agreement.
Section 20. Duties of Rights Agent. The Rights Agent
undertakes the duties and obligations imposed by this Agreement
upon the following terms and conditions, by all of which the
Company and the holders of Rights Certificates, by their
acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal
counsel (who may be legal counsel for the Company), and the
opinion of such counsel shall be full and complete authorization
and protection to the Rights Agent as to any action taken or
omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties
under this Agreement the Rights Agent shall deem it necessary or
desirable that any fact or matter (including, without limitation,
the identity of any Acquiring Person and the determination of
"Current Market Price") be proved or established by the Company
prior to taking or suffering any action hereunder, such fact or
matter (unless other evidence in respect thereof be herein
specifically prescribed) may be deemed to be conclusively proved
and established by a certificate signed by the Chairman of the
Board, the President, any Vice President, the Treasurer, any
Assistant Treasurer, the Secretary or any Assistant Secretary of
the Company and delivered to the Rights Agent; and such
certificate shall be full authorization to the Rights Agent for
any action taken or suffered in good faith by it under the
provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder
only for its own 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 Rights Certificates, nor shall it be
required to verify the same (except as to its countersignature on
such Rights Certificates), but all such statements and recitals
are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be under any
responsibility in respect of the validity of this Agreement or
the execution and delivery hereof (except the due execution
hereof by the Rights Agent) or in respect of the validity or
execution of any Rights Certificate (except its countersignature
thereon); nor shall it be responsible for any breach by the
Company of any covenant or condition contained in this Agreement
or in any Rights Certificate; nor shall it be responsible for any
adjustment required under the provisions of Section 11 or Section
13 hereof or responsible for the manner, method or amount of any
such adjustment or the ascertaining of the existence of facts
that would require any such adjustment (except with respect to
the exercise of Rights evidenced by Rights Certificates after
receipt of a certificate describing any such adjustment); nor
shall it by any act hereunder be deemed to make any represen-
tation or warranty as to the authorization or reservation of any
shares of Common Stock of the Company or Preferred Stock to be
issued pursuant to this Agreement or any Rights Certificate or as
to whether any shares of Common Stock of the Company or Preferred
Stock will, when so issued, be validly authorized and issued,
fully paid and nonassessable.
(f) The Company agrees that it will perform,
execute, acknowledge and deliver or cause to be performed,
executed, acknowledged and delivered all such further and other
acts, instruments and assurances as may reasonably be required by
the Rights Agent for the carrying out or performing by the Rights
Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and
directed to accept instructions with respect to the performance
of its duties hereunder from the Chairman of the Board, the
President, the Vice Chairman of the Board, any Vice President,
the Secretary, any Assistant Secretary, the Treasurer or any
Assistant Treasurer of the Company, and to apply to such officers
for advice or instructions in connection with its duties, and it
shall not be liable for any action taken or suffered to be taken
by it in good faith in accordance with instructions of any such
officer. Any application by the Rights Agent for written
instructions from the Company may, at the Rights Agent's option,
set forth in writing any action proposed to be taken by, or
omission of, the Rights Agent under this Agreement and the date
on and/or after which such action shall be taken or omission
shall be effective. The Rights Agent shall not be liable for any
action taken by, or omission of, the Rights Agent in accordance
with a proposal included in any such application on or after the
date specified in such application (which date shall not be less
than three business days after the date the Company actually
receives such application, unless the Company shall have
consented in writing to an earlier date) unless, prior to taking
any such action (or prior to the effective date in the case of an
omission), the Rights Agent shall have received written
instructions in response to such application specifying the
action to be taken or omitted.
(h) The Rights Agent and any stockholder,
director, officer or employee of the Rights Agent may buy, sell
or deal in any of the Rights or other securities of the Company
or become pecuniarily interested in any transaction in which the
Company may be interested, or contract with or lend money to the
Company or otherwise act as fully and freely as though it were
not Rights Agent under this Agreement. Nothing herein shall
preclude the Rights Agent from acting in any other capacity for
the Company or for any other legal entity.
(i) The Rights Agent may execute and exercise any
of the rights or powers hereby vested in it or perform any duty
hereunder either itself or by or through its attorneys or agents,
and the Rights Agent shall not be answerable or accountable for
any act, default, neglect or misconduct of any such attorneys or
agents or for any loss to the Company resulting from any such
act, default, neglect or misconduct; provided, however,
reasonable care was exercised in the selection and continued
employment thereof.
(j) No provision of this Agreement shall require
the Rights Agent to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its
duties hereunder or in the exercise of its rights if there shall
be reasonable grounds for believing that repayment of such funds
or adequate indemnification against such risk or liability is not
reasonably assured to it.
(k) If, with respect to any Rights Certificate
surrendered to the Rights Agent for exercise or transfer, the
certificate attached to the form of assignment or form of
election to purchase, as the case may be, has either not been
completed or indicates an affirmative response to clause 1 and/or
clause 2 thereof, the Rights Agent shall not take any further
action with respect to such requested exercise or transfer
without first consulting with the Company.
Section 21. Change of Rights Agent. The Rights Agent
or any successor Rights Agent may resign and be discharged from
its duties under this Agreement upon 30 days' notice in writing
mailed to the Company and to each transfer agent of the Common
Stock of the Company, Series C Preferred Stock and Preferred
Stock by registered or certified mail and to the holders of the
Rights Certificates by first-class mail. The Company may remove
the Rights Agent or any successor Rights Agent upon 30 days'
notice in writing mailed to the Rights Agent or successor Rights
Agent, as the case may be, and to each transfer agent of the
Common Stock of the Company, Series C Preferred Stock and
Preferred Stock by registered or certified mail and to the
holders of the Rights Certificates by first-class mail. If the
Rights Agent shall resign or be removed or shall otherwise become
incapable of acting, the Company shall appoint a successor to the
Rights Agent. If the Company shall fail to make such appointment
within a period of 30 days after giving notice of such removal or
after it has been notified in writing of such resignation or
incapacity by the resigning or incapacitated Rights Agent or by
the holder of a Rights Certificate (who shall, with such notice,
submit his Rights Certificate for inspection by the Company),
then any registered holder of any Rights Certificate may apply to
any court of competent jurisdiction for the appointment of a new
Rights Agent. If no successor Rights Agent shall have been
appointed within 30 days from effectiveness of such removal or
resignation and no registered holder of any Rights Certificate
has applied pursuant to this Agreement for the appointment of a
new Rights Agent, the Company shall be automatically designated
as successor Rights Agent. Any successor Rights Agent appointed
by the Company or by such a court shall be (a) a corporation
organized and doing business under the laws of the United States
or of any state of the United States, in good standing, which is
authorized to do business as a banking institution in such state,
is authorized under such laws to exercise corporate trust powers,
is subject to supervision or examination by federal or state
authority and has at the time of its appointment as Rights Agent
a combined capital and surplus of at least $100,000,000 or (b) an
Affiliate of a corporation described in clause (a) of this
sentence. After appointment, the successor Rights Agent shall be
vested with the same powers, rights, duties and responsibilities
as if it had been originally named as Rights Agent without
further act or deed; but the predecessor Rights Agent shall
deliver and transfer to the successor Rights Agent any property
at the time held by it hereunder, and shall execute and deliver
any further assurance, conveyance, act or deed necessary for the
purpose. Not later than the effective date of any such
appointment, the Company shall file notice thereof in writing
with the predecessor Rights Agent and each transfer agent of the
Common Stock of the Company, Series C Preferred Stock and the
Preferred Stock and shall mail a notice thereof in writing to the
registered holders of the Rights Certificates. Failure to give
any notice provided for in this Section 21, however, or any
defect therein, shall not affect the legality or validity of the
resignation or removal of the Rights Agent or the appointment of
the successor Rights Agent, as the case may be.
Section 22. Issuance of New Rights Certificates.
Notwithstanding any of the provisions of this Agreement or of the
Rights Certificates to the contrary, the Company may, at its
option, issue new Rights Certificates evidencing Rights in such
form as may be approved by the Board to reflect any adjustment or
change in the Purchase Price and the number or kind or class of
shares or other securities or property purchasable under the
Rights Certificates made in accordance with the provisions of
this Agreement. In addition, in connection with the issuance or
sale of shares of Common Stock of the Company or Series C
Preferred Stock following the Distribution Date and prior to the
redemption or expiration of the Rights, the Company (a) shall,
with respect to shares of Common Stock of the Company so issued
or sold pursuant to the exercise of stock options or under any
employee plan or arrangement or upon the exercise, conversion or
exchange of securities hereafter issued by the Company and (b)
may, in any other case, if deemed necessary or appropriate by the
Board, issue Rights Certificates representing the appropriate
number of Rights in connection with such issuance or sale;
provided, however, that (i) no such Rights Certificate shall be
issued if, and to the extent that, the Company shall be advised
by counsel that such issuance would create a significant risk of
material adverse tax consequences to the Company or the Person to
whom such Rights Certificate would be issued and (ii) no such
Rights Certificate shall be issued if, and to the extent that,
appropriate adjustment shall otherwise have been made in lieu of
the issuance thereof.
Section 23. Redemption and Termination.
(a) The Board may, at its option, at any time
prior to the earlier of (i) the Close of Business on the tenth
Business Day following the Stock Acquisition Date (or, if the
Stock Acquisition Date shall have occurred prior to the Record
Date, the Close of Business on the tenth Business Day following
the Record Date), as such period may be extended pursuant to
Section 26 hereof, or (ii) the Final Expiration Date, redeem all
but not less than all of the then outstanding Rights at a
redemption price of $.01 per Right, as such amount may be
appropriately adjusted to reflect any stock split, stock dividend
or similar transaction occurring after the date hereof (such
redemption price being hereinafter referred to as the "Redemption
Price"), and the Company may, at its option, pay the Redemption
Price in shares of Common Stock of the Company (based on the
Current Market Price of the Common Stock of the Company at the
time of redemption), cash or any other form of consideration
deemed appropriate by the Board. Notwithstanding anything
contained in this Agreement to the contrary, the Rights shall not
be exercisable after the first occurrence of a Section 11(a)(ii)
Event until such time as the Company's right of redemption
hereunder has expired.
(b) Immediately upon the action of the Board
ordering the redemption of the Rights, evidence of which shall
have been filed with the Rights Agent and without any further
action and without any notice, the right to exercise the Rights
will terminate and the only right thereafter of the holders of
Rights shall be to receive the Redemption Price for each Right so
held. Promptly after the action of the Board ordering the
redemption of the Rights, the Company shall give notice of such
redemption to the Rights Agent and the holders of the then
outstanding Rights by mailing such notice to all such holders at
each holder's last address as it appears upon the registry books
of the Rights Agent or, prior to the Distribution Date, on the
registry books of the transfer agent for the Common Stock of the
Company or the Series C Preferred Stock, as the case may be. Any
notice which is mailed in the manner herein provided shall be
deemed given, whether or not the holder receives the notice.
Each such notice of redemption will state the method by which the
payment of the Redemption Price will be made.
Section 24. Notice of Certain Events.
(a) In case the Company shall propose, at any
time after the Distribution Date, (i) to pay any dividend payable
in stock of any class to the holders of Preferred Stock or to
make any other distribution to the holders of Preferred Stock
(other than a regular periodic cash dividend out of earnings or
retained earnings of the Company), (ii) to offer to the holders
of Preferred Stock rights or warrants to subscribe for or to
purchase any additional shares of Preferred Stock or shares of
stock of any class or any other securities, rights or options,
(iii) to effect any reclassification of its Preferred Stock
(other than a reclassification involving only the subdivision or
split of outstanding shares of Preferred Stock), (iv) to effect
any consolidation, combination or merger into or with any other
Person or Persons (other than a Subsidiary of the Company in a
transaction which complies with Section 11(o) hereof), or to
effect any sale or other transfer (or to permit one or more of
its Subsidiaries to effect any sale or other transfer), in one
transaction or a series of related transactions, of more than 50%
of the assets or earning power of the Company and its
Subsidiaries (taken as a whole) to any other Person or Persons
(other than the Company and/or any of its Subsidiaries in one or
more transactions each of which complies with Section 11(o)
hereof) or (v) to effect the liquidation, dissolution or winding
up of the Company, then, in each such case, the Company shall
give to each holder of a Rights Certificate, to the extent
feasible and in accordance with Section 25 hereof, a notice of
such proposed action, which shall specify the record date for the
purposes of such stock dividend, distribution of rights or
warrants, or the date on which such reclassification,
consolidation, combination, merger, sale, transfer, liquidation,
dissolution or winding up is to take place and the date of
participation therein by the holders of the shares of Preferred
Stock, if any such date is to be fixed, and such notice shall be
so given in the case of any action covered by clause (i) or (ii)
above at least 20 days prior to the record date for determining
holders of the shares of Preferred Stock for purposes of such
action, and in the case of any such other action, at least 20
days prior to the date of the taking of such proposed action or
the date of participation therein by the holders of the shares of
Preferred Stock, whichever shall be the earlier.
(b) In case any Section 11(a)(ii) Event shall
occur, then, in any such case, (i) the Company shall as soon as
practicable thereafter give to each holder of a Rights
Certificate, to the extent feasible and in accordance with
Section 25 hereof, a notice of the occurrence of such event,
which shall specify the event and the consequences of the event
to holders of Rights under Section 11(a)(ii) hereof and (ii) all
references in the preceding paragraph to Preferred Stock shall be
deemed thereafter to refer to Common Stock of the Company and/or,
if appropriate, other securities.
Section 25. Notices. Notices or demands authorized by
this Agreement to be given or made by the Rights Agent or by the
holder of any Rights Certificate to or on the Company shall be
sufficiently given or made if sent by first-class mail, postage
prepaid, addressed (until another address is filed in writing
with the Rights Agent) as follows:
Xxx Xxxxxxxx Xxxxxxx
0000 Xxxxxxxxxx Xxxxx Xxxxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Corporate Secretary
Subject to the provisions of Section 21 hereof, any notice or
demand authorized by this Agreement to be given or made by the
Company or by the holder of any Rights Certificate to or on the
Rights Agent shall be sufficiently given or made if sent by
first-class mail, postage prepaid, addressed (until another
address is filed in writing with the Company) as follows:
The First National Bank of Boston
Blue Hills Office Park
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Shareholder Services Division
Notices or demands authorized by this Agreement to be given or
made by the Company or the Rights Agent to the holder of any
Rights Certificate (or, if prior to the Distribution Date, to the
holder of certificates representing shares of Common Stock of the
Company or Series C Preferred Stock) shall be sufficiently given
or made if sent by first-class mail, postage prepaid, addressed
to such holder at the address of such holder as shown on the
registry books of the Company.
Section 26. Supplements and Amendments. Prior to the
Distribution Date and subject to the penultimate sentence of this
Section 26, the Company and the Rights Agent shall, if the Board
so directs, supplement or amend any provision of this Agreement
without the approval of any holders of certificates representing
shares of Common Stock of the Company or Series C Preferred
Stock. From and after the Distribution Date and subject to the
penultimate sentence of this Section 26, the Company and the
Rights Agent shall, if the Board so directs, supplement or amend
this Agreement without the approval of any holders of Rights
Certificates in order (i) to cure any ambiguity, (ii) to correct
or supplement any provision contained herein which may be
defective or inconsistent with any other provisions herein, (iii)
to shorten or lengthen any time period hereunder or (iv) to
change or supplement the provisions hereunder in any manner which
the Company may deem necessary or desirable and which shall not
adversely affect the interests of the holders of Rights
Certificates (other than an Acquiring Person or an Affiliate or
Associate of an Acquiring Person); provided, this Agreement may
not be supplemented or amended to lengthen, pursuant to clause
(iii) of this sentence, (A) a time period relating to when the
Rights may be redeemed at such time as the Rights are not then
redeemable or (B) any other time period unless such lengthening
is for the purpose of protecting, enhancing or clarifying the
rights of, and/or the benefits to, the holders of Rights (other
than an Acquiring Person or an Affiliate or Associate of an
Acquiring Person). Upon the delivery of a certificate from an
appropriate officer of the Company which states that the proposed
supplement or amendment is in compliance with the terms of this
Section 26, the Rights Agent shall execute such supplement or
amendment. Notwithstanding anything contained in this Agreement
to the contrary, no supplement or amendment shall be made which
changes the Redemption Price, the Final Expiration Date, the
Purchase Price or the number of one ten-thousandths of a share of
Preferred Stock for which a Right is exercisable; provided,
however, that at any time prior to (x) the existence of an
Acquiring Person or (y) the date that a tender or exchange offer
by any Person (other than an Exempt Person) is first published or
sent or given within the meaning of Rule 14d-2(a) of the General
Rules and Regulations under the Exchange Act if upon consummation
thereof such Person would be an Acquiring Person, the Board may
amend this Agreement to increase the Purchase Price or extend the
Final Expiration Date. Prior to the Distribution Date, the
interests of the holders of Rights shall be deemed coincident
with the interests of the holders of Common Stock of the Company
and Series C Preferred Stock, as the case may be.
Section 27. Successors. All the covenants and
provisions of this Agreement by or for the benefit of the Company
or the Rights Agent shall bind and inure to the benefit of their
respective successors and assigns hereunder.
Section 28. Determinations and Actions by the Board,
etc. For all purposes of this Agreement, any calculation of the
number of shares of Common Stock of the Company outstanding at
any particular time, including for purposes of determining the
particular percentage of such outstanding shares of Common Stock
of the Company of which any Person is the Beneficial Owner, shall
be made in accordance with the last sentence of Rule 13d-
3(d)(1)(i) of the General Rules and Regulations under the
Exchange Act. The Board shall have the exclusive power and
authority to administer this Agreement and to exercise all rights
and powers specifically granted to the Board or to the Company,
or as may be necessary or advisable in the administration of this
Agreement, including, without limitation, the right and power to
(a) interpret the provisions of this Agreement and (b) make all
determinations deemed necessary or advisable for the
administration of this Agreement (including a determination to
redeem or not redeem the Rights or to amend this Agreement). All
such actions, calculations, interpretations and determinations
(including, for purposes of clause (y) below, all omissions with
respect to the foregoing) which are done or made by the Board,
the Outside Directors or the Company in good faith, shall (x) be
final, conclusive and binding on the Company, the Rights Agent,
the holders of the Rights and all other parties and (y) not
subject the Board to any liability to the holders of the Rights.
Section 29. Benefits of this Agreement. Nothing in
this Agreement shall be construed to give to any Person other
than the Company, the Rights Agent and the registered holders of
the Rights Certificates (and, prior to the Distribution Date,
registered holders of the Common Stock of the Company, and the
Series C Preferred Stock) any legal or equitable right, remedy or
claim under this Agreement; but this Agreement shall be for the
sole and exclusive benefit of the Company, the Rights Agent and
the registered holders of the Rights Certificates (and, prior to
the Distribution Date, registered holders of the Common Stock of
the Company and the Series C Preferred Stock).
Section 30. Severability. If any term, provision,
covenant or restriction of this Agreement is held by a court of
competent jurisdiction or other authority to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants
and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated;
provided, however, that notwithstanding anything in this
Agreement to the contrary, if any such term, provision, covenant
or restriction is held by such court or authority to be invalid,
void or unenforceable and the Board 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 23 hereof shall be
reinstated and shall not expire until the Close of Business on
the tenth Business Day following the date of such determination
by the Board. Without limiting the foregoing, if any provision
of this Agreement requiring that a determination be made by the
Outside Directors is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, such
determination shall then be made by the Board in accordance with
applicable law and the Company's certificate of incorporation and
by-laws.
Section 31. Governing Law. This Agreement, each Right
and each Rights Certificate issued hereunder shall be deemed to
be a contract made under the laws of the State of Delaware, and
for all purposes this Agreement shall be governed by and
construed in accordance with the laws of such State applicable to
contracts made and to be performed entirely within such State.
Nothing in this Agreement shall be deemed to impose upon the
Rights Agent any duty to qualify to do business or to act as a
fiduciary or otherwise in any jurisdiction other than the
Commonwealth of Massachusetts.
Section 32. Counterparts. This Agreement may be
executed in any number of counterparts and each of such
counterparts shall for all purposes be deemed to be an original,
and all such counterparts shall together constitute but one and
the same instrument.
Section 33. Descriptive Headings. Descriptive
headings of the several Sections of this Agreement are inserted
for convenience only and shall not control or affect the meaning
or construction of any of the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and their respective corporate
seals to be hereunto affixed and attested, all as of December 14,
1995.
Attest: XXX XXXXXXXX XXXXXXX
By /s/ Xxxxxxx X. Xxxxxx III By /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxx III Name: Xxxxxx X. Xxxxxxxx
Title: Senior Corporate Counsel Title: Vice Chairman
Attest: THE FIRST NATIONAL BANK
OF BOSTON, as Rights Agent
By /s/ Xxxx X. Xxxxx By /s/ Xxxxxxxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxx Name: Xxxxxxxxx X. Xxxxxxxx
Title: Account Manager Title: Administration Manager
Exhibit A
XXX XXXXXXXX XXXXXXX
_______________________________________
AMENDMENT TO CERTIFICATE OF DESIGNATIONS,
PREFERENCES AND RIGHTS OF
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
Pursuant to Section 151 of the
General Corporation Law of
the State of Delaware
Xxx Xxxxxxxx Xxxxxxx, a corporation organized and
existing under the General Corporation Law of the State of
Delaware in accordance with the provisions of Section 103 thereof
(the "Corporation"), does hereby certify:
FIRST: That the Corporation filed a Certificate of
Designations, Preferences and Rights on December 30, 1985
creating a series of 400,000 shares of preferred stock designated
as "Series A Junior Participating Preferred Stock" (the
"Certificate of Designations").
SECOND: That none of the shares of the Corporation's
Series A Junior Participating Preferred Stock have been issued as
of the date set forth below.
THIRD: That the Certificate of Designations is hereby
amended in accordance with the following resolution adopted by
the Board at a duly convened meeting of the Board held on
December 14, 1995, pursuant to the authority vested in it by the
provisions of the Certificate of Incorporation of the
Corporation:
RESOLVED, that, subject to the filing of an Amendment
to Certificate of Designations, Preferences and Rights
of Series A Junior Participating Preferred Stock with
the Secretary of State of the State of Delaware, the
Certificate of Designations, Preferences and Rights of
Series A Junior Participating Preferred Stock filed by
the Company with the Secretary of State of the State of
Delaware on December 30, 1985 (the "Certificate of
Designations") be amended as follows:
1. The Certificate of Designations is amended by
deleting the word "100" each time it appears in
the Certificate of Designations and inserting the
word "10,000" in its place in each such instance.
2. Section 2(A)(i) of the Certificate of Designations
is amended by inserting the following immediately
after the words "shall at any time" in the second
sentence thereof:
"after December 14, 1995 (the "Rights Declaration
Date")".
3. Section 3(A) of the Certificate of Designations is
amended by inserting the following immediately
after the words "shall at any time" in the second
sentence thereof:
"after the Rights Declaration Date".
4. Section 6 of the Certificate of Designations is
amended by inserting the following immediately
after the words "shall at any time" in the second
sentence thereof:
"after the Rights Declaration Date".
FOURTH: That the Amendment to Certificate of
Designations, Preferences and Rights of Series A Junior
Participating Preferred Stock has been duly adopted in accordance
with the provisions of Section 151 of the General Corporation Law
of the State of Delaware.
The Corporation has caused this Certificate to be
signed by its ___________________ and attested to by its
__________________ this ___ day of ____________, 19__.
______________________________
Name:
Title:
Exhibit B
[Form of Rights Certificate]
Certificate No. R- Rights
NOT EXERCISABLE AFTER DECEMBER 14, 2005 OR EARLIER REDEMPTION BY
THE COMPANY OR EXPIRATION PURSUANT TO THE RENEWED RIGHTS
AGREEMENT. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION
OF THE COMPANY, AT $.01 PER RIGHT ON THE TERMS SET FORTH IN THE
RIGHTS AGREEMENT. THE RIGHTS SHALL NOT BE EXERCISABLE, AND SHALL
BE VOID SO LONG AS HELD, BY A HOLDER IN ANY JURISDICTION WHERE
THE REQUISITE QUALIFICATION FOR THE ISSUANCE TO SUCH HOLDER, OR
THE EXERCISE BY SUCH HOLDER, OF THE RIGHTS IN SUCH JURISDICTION
SHALL NOT HAVE BEEN OBTAINED OR BE OBTAINABLE. UNDER CERTAIN
CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON
(AS SUCH TERMS ARE DEFINED IN THE RENEWED RIGHTS AGREEMENT) AND
ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID.
[THE RIGHTS REPRESENTED BY THIS RIGHTS CERTIFICATE ARE OR WERE
BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING
PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS
SUCH TERMS ARE DEFINED IN THE RENEWED RIGHTS AGREEMENT).
ACCORDINGLY, THIS RIGHTS CERTIFICATE AND THE RIGHTS REPRESENTED
HEREBY MAY BECOME NULL AND VOID IN THE CIRCUMSTANCES SPECIFIED IN
SECTION 7(e) OF SUCH AGREEMENT.]*
Rights Certificate
XXX XXXXXXXX XXXXXXX
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 Renewed Rights
Agreement, dated as of December 14, 1995, as amended, restated,
renewed or extended from time to time (the "Rights Agreement"),
between Xxx Xxxxxxxx Xxxxxxx, a Delaware corporation (the
"Company"), and The First National Bank of Boston, a national
banking association (the "Rights Agent"), to purchase from the
Company at any time prior to 5:00 P.M. (New York City time) on
December 14, 2005 at the office of the Rights Agent designated
for such purpose, or its successors as Rights Agent, one ten-
thousandth of a fully paid, nonassessable share of Series A
Junior Participating Preferred Stock ("the Preferred Stock") of
the Company, at a purchase price of $225 per one ten-thousandth
of a share (the "Purchase Price"), upon presentation and
surrender of this Rights Certificate with the Form of Election to
Purchase and related Certificate duly executed. The Purchase
Price shall be paid, at the election of the holder, in cash or
shares of Common Stock of the Company having an equivalent value.
The number of Rights evidenced by this Rights Certificate (and
the number of shares which may be purchased upon exercise
thereof) set forth above, and the Purchase Price set forth above,
are the number and Purchase Price as of , ,
based on the Preferred Stock as constituted at such date. The
Company reserves the right to require prior to the occurrence of
___________________
* The portion of the legend in brackets shall be inserted
only if applicable and shall replace the preceding
sentence.
a Triggering Event (as such term is defined in the Rights
Agreement) that a number of Rights be exercised so that only
whole shares of Preferred Stock will be issued.
As more fully set forth in the Rights Agreement, from
and after the first occurrence of a Section 11(a)(ii) Event (as
such term is defined in the Rights Agreement), if the Rights
evidenced by this Rights Certificate are beneficially owned by
(i) an Acquiring Person or an Associate or Affiliate of an
Acquiring Person (as such terms are defined in the Rights
Agreement) which the Board (as defined in the Rights Agreement),
in its sole discretion, determines is or was involved in or
caused or facilitated, directly or indirectly (including through
any change in the Board), such Section 11(a)(ii) Event, (ii) a
transferee of such Acquiring Person (or of any such Associate or
Affiliate) who becomes a transferee after such Acquiring Person
becomes such or (iii) under certain circumstances specified in
the Rights Agreement, a transferee of such Acquiring Person (or
of any such Associate or Affiliate) who becomes a transferee
prior to or concurrently with such Acquiring Person becoming
such, such Rights shall become null and void without any further
action, and no holder of such Rights shall have any right with
respect to such Rights whether under the Rights Agreement or
otherwise.
As provided in the Rights Agreement, the Purchase Price
and the number and kind of shares of Preferred Stock or other
securities, which may be purchased upon the exercise of the
Rights evidenced by this Rights Certificate are subject to
modification and adjustment upon the happening of certain events,
including Triggering Events.
This Rights Certificate is subject to all of the terms,
provisions and conditions of the Rights Agreement, which terms,
provisions and conditions are hereby incorporated herein by
reference and made a part hereof and to which Rights Agreement
reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities
hereunder of the Rights Agent, the Company and the holders of the
Rights Certificates, which limitations of rights include the
temporary suspension of the exercisability of such Rights under
the specific circumstances set forth in the Rights Agreement.
Reference is also made to the Rights Agreement for definitions of
capitalized terms used and not defined herein. Copies of the
Rights Agreement are on file at the above-mentioned office of the
Rights Agent and are also available upon written request to the
Rights Agent.
This Rights Certificate, with or without other Rights
Certificates, upon surrender at the office of the Rights Agent
designated for such purpose, may be exchanged for another Rights
Certificate or Rights Certificates of like tenor and date
evidencing Rights entitling the holder to purchase a like
aggregate number of one ten-thousandths of a share of Preferred
Stock as the Rights evidenced by the Rights Certificate or Rights
Certificates surrendered shall have entitled such holder to
purchase. If this Rights Certificate shall be exercised in part,
the holder shall be entitled to receive upon surrender hereof
another Rights Certificate or Rights Certificates for the number
of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the
Rights evidenced by this Certificate may be redeemed by the
Company at its option at a redemption price of $.01 per Right at
any time prior to the earlier of the Close of Business on (i) the
tenth Business Day following the Stock Acquisition Date (or, if
the Stock Acquisition Date shall have occurred prior to the
Record Date, the Close of Business on the tenth Business Day
following the Record Date), as such time period may be extended
pursuant to the Rights Agreement and (ii) the Final Expiration
Date (as defined in the Rights Agreement).
If the Company so determines, no fractional shares of
Preferred Stock will be issued upon the exercise of any Right or
Rights evidenced hereby (other than fractions which are integral
multiples of one ten-thousandth of a share of Preferred Stock,
which may, at the election of the Company, be evidenced by
depositary receipts), but in lieu thereof a cash payment will be
made, as provided in the Rights Agreement.
No holder of this Rights Certificate, as such, shall be
entitled to vote or receive dividends or be deemed for any
purpose the holder of shares of Preferred Stock or of any other
securities of the Company which may at any time be issuable on
the exercise hereof, nor shall anything contained in the Rights
Agreement or herein be construed to confer upon the holder
hereof, as such, any of the rights of a stockholder of the
Company or any right to vote for the election of directors or
upon any matter submitted to stockholders at any meeting thereof,
or to give or withhold consent to any corporate action, or, to
receive notice of meetings or other actions affecting
stockholders (except as provided in the Rights Agreement), or to
receive dividend or subscription rights, or otherwise, until the
Right or Rights evidenced by this Rights Certificate shall have
been exercised as provided in the Rights Agreement.
This Rights Certificate shall not be valid or
obligatory for any purpose until it shall have been countersigned
by the Rights Agent.
WITNESS the facsimile signature of the proper officers of
the Company and its corporate seal.
Dated as of _________________, ____
ATTEST: XXX XXXXXXXX XXXXXXX
_____________________________ By______________________
Secretary Title:
Countersigned:
THE FIRST NATIONAL
BANK OF BOSTON
By____________________
Authorized Signature
[Form of Reverse Side of Rights Certificate]
ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Rights Certificate.)
FOR VALUE RECEIVED ____________________________________________
hereby sells, assigns and transfers unto ______________________
_______________________________________________________________
(Please print name and address of transferee)
_______________________________________________________________
this Rights Certificate, together with all right, title and
interest therein, and does hereby irrevocably constitute and
appoint _______________, Attorney, to transfer the within Rights
Certificate on the books of the within-named Company, with full
power of substitution.
Dated: __________________, ____
________________________________
Signature
Signature Guaranteed:
Certificate
The undersigned hereby certifies by checking the appropriate
boxes that:
(1) this Rights Certificate [ ] is [ ] is not being sold,
assigned and transferred by or on behalf of a Person who is or
was an Acquiring Person or an Affiliate or Associate of any such
Acquiring Person (as such terms are defined in the Rights
Agreement); and
(2) after due inquiry and to the best knowledge of the
undersigned, the undersigned [ ] did [ ] did not acquire the
Rights evidenced by this Rights Certificate from any Person who
is, was or subsequently became an Acquiring Person or an
Affiliate or Associate of an Acquiring Person.
Dated: _________________, ____ _____________________________
Signature
Signature Guaranteed:
NOTICE
The signatures to the foregoing Assignment and Certificate
must correspond to the name as written upon the face of this
Rights Certificate in every particular, without alteration or
enlargement or any change whatsoever.
ELECTION TO PURCHASE
(To be executed if holder desires to exercise
Rights represented by the Rights Certificate.)
To: XXX XXXXXXXX XXXXXXX
The undersigned hereby irrevocably elects to exercise
Rights represented by this Rights Certificate to
purchase the shares of Preferred Stock issuable upon the exercise
of the Rights (or such other securities of the Company or of any
other Person which may be issuable upon the exercise of the
Rights) and requests that certificates for such shares be issued
in the name of and delivered to:
Please insert social security
or other identifying number
_________________________________________________________________
(Please print name and address)
_________________________________________________________________
_________________________________________________________________
If such number of Rights shall not be all the Rights
evidenced by this Rights Certificate, a new Rights Certificate
for the balance of such Rights shall be registered in the name of
and delivered to:
Please insert social security
or other identifying number
_________________________________________________________________
(Please print name and address)
_________________________________________________________________
_________________________________________________________________
Dated: ________________, ____
______________________________
Signature
Signature Guaranteed:
Certificate
The undersigned hereby certifies by checking the appropriate
boxes that:
(1) the Rights evidenced by this Rights Certificate [ ] are
[ ] are not being exercised by or on behalf of a Person who is or
was an Acquiring Person or an Affiliate or Associate of any such
Acquiring Person (as such terms are defined in the Rights
Agreement); and
(2) after due inquiry and to the best knowledge of the
undersigned, the undersigned [ ] did [ ] did not acquire the
Rights evidenced by this Rights Certificate from any Person who
is, was or became an Acquiring Person or an Affiliate or
Associate of an Acquiring Person.
Dated: _______________, ____ ___________________________
Signature
Signature Guaranteed:
NOTICE
The signatures to the foregoing Election to Purchase and
Certificate must correspond to the name as written upon the face
of this Rights Certificate in every particular, without
alteration or enlargement or any change whatsoever.
