EXHIBIT 4.a
Washington Trust Bancorp, Inc.
Amended and Restated Rights Agreement
WASHINGTON TRUST BANCORP, INC.
and
MELLON INVESTOR SERVICES LLC
Rights Agent
Amended and Restated Rights Agreement
Dated as of March 1, 2002.
TABLE OF CONTENTS
Section 1. Certain Definitions
Section 2. Appointment of Rights Agent
Section 3. Issue of Right Certificates
Section 4. Form of Right Certificates
Section 5. Countersignature and Registration
Section 6. Transfer, Split Up, Combination and Exchange of Right Certificates;
Mutilated, Destoyed, Lost of Stolen Right Certificates
Section 7. Exercise of Rights; Purchase Price; Final Expiration Date of Rights
Section 8. Cancellation and Destruction of Right Certificates
Section 9. Status of Common Shares
Section 10. Common Shares Record Date
Section 11. Adjustment of Purchase Price, Number of Shares or Number of Rights
Section 12. Certificate of Adjustment
Section 13. Consolidation, Merger or Sale or Transfer of Assets or Earning Power
Section 14. Fractional Rights and Fractional Shares
Section 15. Rights of Action
Section 16. Agreement of Right Holders
Section 17. Right Certificate Holder Not Deemed a Shareholder
Section 18. Concerning the Rights Agent
Section 19. Merger or Consolidation or Change of Name of Rights Agent
Section 20. Duties of Rights Agent
Section 21. Change of Rights Agent
Section 22. Issuance of New Right Certificates
Section 23. Redemption
Section 24. Exchange
Section 25. Notice of Certain Events
Section 26. Notices
Section 27. Supplements and Amendments
Section 28. Successors
Section 29. Benefits of this Agreement
Section 30. Severability
Section 31. Governing Law
Section 32. Counterparts
Section 33. Descriptive Headings
Section 34. Administration
Exhibit A - Form of Right Certificate
Exhibit B - Summary of Rights
AMENDED AND RESTATED RIGHTS AGREEMENT
This Amended and Restated Rights Agreement, dated as of March 1, 2002 (this
"Agreement"), by and between Washington Trust Bancorp, Inc., a Rhode Island
corporation (the "Corporation"), and Mellon Investor Services LLC, a New Jersey
limited liability company, as Rights Agent (the "Rights Agent"), amends and
restates the Rights Agreement, dated as of August 15, 1996, by and between the
Corporation and The Washington Trust Company, as Rights Agent.
The Board of Directors of the Corporation has authorized and declared a
dividend of one common share purchase right (a "Right") for each share of Common
Stock, par value $0.0625 per share, of the Corporation (a "Common Share")
outstanding on the close of business on September 3, 1996 (the "Record Date")
and has authorized the issuance of one Right with respect to each additional
Common Share that shall become outstanding between the Record Date and the
earlier of the Distribution Date, or the Final Expiration Date (as such terms
are defined herein), each Right representing the right to purchase securities of
the Corporation as shall be hereinafter provided.
Accordingly, in consideration of the premises and the mutual agreements
herein set forth, the parties hereby agree as follows:
Section 1. Certain Definitions. For purposes of this Agreement, the
following terms have the meanings indicated:
"Acquiring Person" shall mean any Person who or which, together with all
Affiliates and Associates of such Person, shall be the Beneficial Owner of 15%
or more of the Common Shares of the Corporation then outstanding, but shall not
include (i) the Corporation, (ii) any Subsidiary of the Corporation, (iii) any
employee benefit plan of the Corporation or any Subsidiary of the Corporation,
or (iv) any entity holding Common Shares for or pursuant to the terms of any
such employee benefit plan. Notwithstanding the foregoing, (1) no Person shall
become an "Acquiring Person" as the result of an acquisition of Common Shares by
the Corporation which, by reducing the number of shares outstanding, increases
the proportionate number of shares beneficially owned by such Person to 15%,
provided, however, that if a Person shall so become the Beneficial Owner of 15%
or more of the Common Shares of the Corporation then outstanding by reason of an
acquisition of Common Shares by the Corporation and shall, after such share
purchases by the Corporation, become the Beneficial Owner of an additional 1% of
the outstanding Common Shares of the Corporation, then such Person shall be
deemed to be an "Acquiring Person"; (2) if the Board of Directors of the
Corporation determines in good faith that a Person who would otherwise be an
"Acquiring Person," as defined pursuant to the foregoing provisions of this
paragraph, has become such inadvertently, and such Person divests as promptly as
practicable a sufficient number of Common Shares so that such Person would no
longer be an "Acquiring Person," as defined pursuant to the foregoing provisions
of this paragraph, then such Person shall not be deemed to have become an
"Acquiring Person" for any purposes of this Agreement; and (3) an underwriter or
underwriters which become the Beneficial Owner of 15% or more of the Common
Shares of the Corporation then outstanding in connection with an underwritten
public offering with a view to the public distribution of such Common Shares
shall not become an "Acquiring Person" hereunder. "Affiliate" and "Associate"
shall have the respective meanings ascribed to such terms in Rule 12b-2 of the
General Rules and Regulations under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), as in effect on the date of this Agreement.
A Person shall be deemed the "Beneficial Owner" of and shall be deemed to
"beneficially own" any securities:
(i) which such Person or any of such Person's Affiliates or Associates
beneficially owns, directly or indirectly;
(ii) which such Person or any of such Person's Affiliates or Associates has
(A) the right to acquire (whether such right is exercisable immediately or only
after the passage of time) pursuant to any agreement, arrangement or
understanding (other than customary agreements with and between underwriters and
selling group members with respect to a bona fide public offering of
securities), written or otherwise, or upon the exercise of conversion rights,
exchange rights, rights (other than the Rights), warrants or options, or
otherwise; provided, however, that a Person shall not be deemed to be the
Beneficial Owner of, or to beneficially own, securities tendered pursuant to a
tender or exchange offer made pursuant to, and in accordance with, the
applicable rules and regulations promulgated under the Exchange Act by or on
behalf of such Person or any of such Person's Affiliates or Associates until
such tendered securities are accepted for purchase or exchange; or (B) the right
to vote pursuant to any agreement, arrangement or understanding; provided,
however, that a Person shall not be deemed the Beneficial Owner of, or to
beneficially own, any security if the agreement, arrangement or understanding to
vote such security (1) arises solely from a revocable proxy or consent given to
such Person in response to a public proxy or consent solicitation made pursuant
to, and in accordance with, the applicable rules and regulations promulgated
under the Exchange Act and (2) is not also then reportable on Schedule 13D under
the Exchange Act (or any comparable or successor report); or
(iii) which are beneficially owned, directly or indirectly, by any other
Person with which such Person or any of such Person's Affiliates or Associates
has any agreement, arrangement or understanding (other than customary agreements
with and between underwriters and selling group members with respect to a bona
fide public offering of securities), written or otherwise, for the purpose of
acquiring, holding, voting (except to the extent contemplated by the proviso to
section (B) of the immediately preceding paragraph (ii)) or disposing of any
securities of the Corporation.
Notwithstanding anything in this definition of Beneficial Ownership to the
contrary, the phrase "then outstanding," when used with reference to a Person's
Beneficial Ownership of securities of the Corporation, shall mean the number of
such securities then issued and outstanding together with the number of such
securities not then actually issued and outstanding which such Person would be
deemed to own beneficially hereunder.
"Business Day" shall mean any day other than a Saturday, Sunday, or a day
on which banking institutions in the State of Rhode Island or the State of New
York are authorized or obligated by law or executive order to close.
"Close of Business" on any given date shall mean 5:00 P.M., Providence,
Rhode Island time, on such date; provided, however, that if such date is not a
Business Day it shall mean 5:00 P.M., Providence, Rhode Island time, on the next
succeeding Business Day.
"Common Shares" when used with reference to the Corporation shall mean the
shares of common stock, par value $0.0625 per share, of the Corporation. "Common
Shares" when used with reference to any Person other than the Corporation shall
mean the capital stock (or equity interest) with the greatest voting power of
such other Person or, if such other Person is a Subsidiary of another Person,
the Person or Persons which ultimately control such first-mentioned Person.
"Common stock equivalents" shall have the meaning set forth in Section
11(a)(iii)(B)(3).
"Current Value" shall have the meaning set forth in Section
11(a)(iii)(A)(1) hereof.
"Distribution Date" shall have the meaning set forth in Section 3 hereof.
"Exchange Ratio" shall have the meaning set forth in Section 24(a).
"Final Expiration Date" shall mean the Close of Business on August 31,
2006.
"Person" shall mean any individual, firm, corporation, partnership, limited
partnership, limited liability partnership, business trust, limited liability
company, unincorporated association or other entity, and shall include any
successor (by merger or otherwise) of such entity.
"Purchase Price" shall have the meaning set forth in Section 7(b).
"Redemption Date" shall mean the date on which the Rights are redeemed as
provided in Section 23 hereof.
"Right Certificate" shall mean a certificate evidencing a Right in
substantially the form of Exhibit A hereto.
"Section 11(a)(ii) Trigger Date" shall have the meaning set forth in
Section 11(a)(iii) hereof.
"Shares Acquisition Date" shall mean the earlier of the date of (i) the
public announcement by the Corporation or an Acquiring Person that an Acquiring
Person has become such or (ii) the public disclosure of facts by the Corporation
or an Acquiring Person indicating that an Acquiring Person has become such.
"Spread" shall have the meaning set forth in Section 11(a)(iii)(A)(2)
hereof.
"Subsidiary" of any Person shall mean any Person of which a majority of the
voting power of the voting equity securities or equity interest is owned,
directly or indirectly, by such Person.
"Substitution Period" shall have the meaning set forth in Section
11(a)(iii) hereof.
"Summary of Rights" shall mean the Summary of Rights in substantially the
form of Exhibit B hereto.
Section 2. Appointment of Rights Agent. The Corporation hereby appoints the
Rights Agent to act as agent for the Corporation in accordance with the terms
and conditions hereof, and the Rights Agent hereby accepts such appointment. The
Corporation may from time to time appoint such co-Rights Agents as it may deem
necessary or desirable. The Rights Agent shall have no duty to supervise, and
shall in no event be liable for, the acts or omissions of any such co-Rights
Agent.
Section 3. Issue of Right Certificates.
(a) Until the earlier of (i) the tenth day after the Shares Acquisition
Date or (ii) the tenth Business Day (or such later date as may be determined by
action of the Board of Directors prior to such time as any Person becomes an
Acquiring Person) after the date of the commencement by any Person (other than
the Corporation, any Subsidiary of the Corporation, any employee benefit plan of
the Corporation or of any Subsidiary of the Corporation or any entity holding
Common Shares for or pursuant to the terms of any such plan) of, or of the first
public announcement of the intention of any Person (other than any of the
Persons referred to in the preceding parenthetical) to commence, a tender or
exchange offer the consummation of which would result in any Person becoming the
Beneficial Owner of Common Shares aggregating 15% or more of the then
outstanding Common Shares (such date being herein referred to as the
"Distribution Date"), (x) the Rights will be evidenced (subject to the
provisions of Section 3(b) hereof) by the certificates for Common Shares
registered in the names of the holders thereof (which certificates shall also be
deemed to be Right Certificates) and not by separate Right Certificates, and (y)
the right to receive Right Certificates will be transferable only in connection
with the transfer of Common Shares. As soon as practicable after the
Distribution Date, the Corporation will prepare and execute, the Rights Agent
will countersign, and the Corporation will send or cause to be sent (and the
Rights Agent will, if requested and provided with the names and addresses of the
Shareholders of Common Shares, send) by first-class, insured, postage-prepaid
mail, to each record holder of Common Shares as of the Close of Business on the
Distribution Date, at the address of such holder shown on the records of the
Corporation, a Right Certificate evidencing one Right for each Common Share so
held. As of the Distribution Date, the Rights will be evidenced solely by such
Right Certificates. For purposes hereof, a tender or exchange offer shall not be
deemed to have commenced, nor shall any Person be deemed to have publicly
announced an intent to commence a tender or exchange offer, until such time as
(i) one or more of the events specified by Rule 14d-2(a)(1), (2), (3) or (4)
under the Exchange Act shall have occurred or any Person shall have filed a
Schedule 14D-1 with the Securities and Exchange Commission under the Exchange
Act with respect to the commencement of a tender or exchange offer (the first to
occur of any such events or filing being deemed an "Event") or (ii) an Event
shall have occurred following a public announcement by any Person (other than
the Corporation, any Subsidiary of the Corporation, any employee benefit plan of
the Corporation or of any Subsidiary of the Corporation or any entity holding
Common Shares for or pursuant to the terms of any such plan) of the intention to
commence a tender or exchange offer.
(b) On the Record Date, or as soon as practicable thereafter, the
Corporation will send a copy of the Summary of Rights by first-class,
postage-prepaid mail, to each record holder of Common Shares as of the Close of
Business on the Record Date, at the address of such holder shown on the records
of the Corporation. With respect to certificates for Common Shares outstanding
as of the Record Date, until the Distribution Date, the Rights will be evidenced
by such certificates registered in the names of the holders thereof together
with a copy of the Summary of Rights attached thereto. Until the Distribution
Date (or the earlier of the Redemption Date or the Final Expiration Date), the
surrender for transfer of any certificate for Common Shares outstanding on the
Record Date, with or without a copy of the Summary of Rights attached thereto,
shall also constitute the transfer of the Rights associated with the Common
Shares evidenced thereby.
(c) Certificates for Common Shares which become outstanding (including,
without limitation, reacquired Common Shares referred to in the last sentence of
this paragraph (c)) after the Record Date but prior to the earliest of the
Distribution Date, the Redemption Date or the Final Expiration Date shall have
impressed on, printed on, written on or otherwise affixed to them the following
legend:
This certificate also evidences and entitles the holder hereof to certain
Rights as set forth in the Amended and Restated Rights Agreement, by and
between Washington Trust Bancorp, Inc. and Mellon Investor Services LLC,
a New Jersey limited liability company (as successor to The Washington
Trust Company), as Rights Agent, dated as of March 1, 2002 (the "Rights
Agreement"), the terms of which are hereby incorporated herein by reference
and a copy of which is on file at the principal executive offices of
Washington Trust Bancorp, Inc. Under certain circumstances, as set forth
in the Rights Agreement, such Rights will be evidenced by separate
certificates and will no longer be evidenced by this certificate.
Washinton Trust Bancorp, Inc. will mail to the holder of this certificate
a copy of the Rights Agreement without charge after receipt of a written
request therefor. Under certain circumstances, Rights that are or were
acquired or beneficially owned by Acquiring Persons (as defined in the
Rights Agreement) may become null and void.
With respect to such certificates containing the foregoing legend, until
the Distribution Date, the Rights associated with the Common Shares represented
by certificates shall be evidenced by such certificates alone, and the surrender
for transfer of any such certificate shall also constitute the transfer of the
Rights associated with the Common Shares represented thereby. In the event that
the Corporation purchases or acquires any Common Shares after the Record Date
but prior to the Distribution Date, any Rights associated with such Common
Shares shall be deemed cancelled and retired so that the Corporation shall not
be entitled to exercise any Rights associated with the Common Shares which are
no longer outstanding.
Section 4. Form of Right Certificates. The Right Certificates (and the
forms of election to purchase Common Shares and of assignment to be printed on
the reverse thereof) shall be substantially the same as Exhibit A hereto and may
have such marks of identification or designation and such legends, summaries or
endorsements printed thereon as the Corporation may deem appropriate and as are
not inconsistent with the provisions of this Agreement and which do not affect
the rights, duties or responsibilities of the Rights Agent, or as may be
required to comply with any applicable law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock exchange on which
the Rights may from time to time be listed, or to conform to usage. Subject to
the other provisions of this Agreement, the Right Certificates shall entitle the
holders thereof to purchase such number of Common Shares as shall be set forth
therein at the Purchase Price, but the number of Common Shares and the Purchase
Price shall be subject to adjustment as provided herein.
Section 5. Countersignature and Registration. The Right Certificates shall
be executed on behalf of the Corporation by its Chairman of the Board, its Chief
Executive Officer, its President, any of its Vice Presidents, or its Treasurer,
either manually or by facsimile signature, shall have affixed thereto the
Corporation's seal or a facsimile thereof, and shall be attested by the
Secretary or any Assistant Secretary of the Corporation, either manually or by
facsimile signature. The Right Certificates shall be countersigned by the Rights
Agent and shall not be valid for any purpose unless so countersigned, either
manually or by facsimile. In case any officer of the Corporation who shall have
signed any of the Right Certificates shall cease to be such officer of the
Corporation before countersignature by the Rights Agent and issuance and
delivery by the Corporation, such Right Certificates, nevertheless, may be
countersigned by the Rights Agent and issued and delivered by the Corporation
with the same force and effect as though the person who signed such Right
Certificates had not ceased to be such officer of the Corporation; and any Right
Certificate may be signed on behalf of the Corporation by any person who, at the
actual date of the execution of such Right Certificate, shall be a proper
officer of the Corporation to sign such Right Certificate, although at the date
of the execution of this Rights Agreement any such person was not such an
officer.
Following the Distribution Date and receipt by the Rights Agent of all
relevant information, the Rights Agent will keep or cause to be kept, at its
office designated for such purpose (the "Rights Agent Office"), books for
registration of the transfer of the Right Certificates issued hereunder. Such
books shall show the names and addresses of the respective holders of the Right
Certificates, the number of Rights evidenced on its face by each of the Right
Certificates and the date of each of the Right Certificates.
Section 6. Transfer, Split Up, Combination and Exchange of Right
Certificates; Mutilated, Destroyed, Lost or Stolen Right Certificates. Subject
to the provisions of Section 14 hereof, at any time after the Close of Business
on the Distribution Date, and at or prior to the Close of Business on the
earlier of the Redemption Date or the Final Expiration Date, any Right
Certificate or Right Certificates (other than Right Certificates representing
Rights that have become void pursuant to Section 11(a)(ii) hereof or that have
been exchanged pursuant to Section 24 hereof) may be transferred, split up,
combined or exchanged for another Right Certificate or Right Certificates,
entitling the registered holder to purchase a like number of Common Shares as
the Right Certificate or Right Certificates surrendered then entitled such
holder to purchase. Any registered holder desiring to transfer, split up,
combine or exchange any Right Certificate or Right Certificates shall make such
request in writing delivered to the Rights Agent, and shall surrender the Right
Certificate or Right Certificates to be transferred, split up, combined or
exchanged at the Rights Agent Office. Thereupon the Rights Agent shall
countersign and deliver to the person entitled thereto a Right Certificate or
Right Certificates, as the case may be, as so requested. The Corporation may
require payment of a sum sufficient for any tax or governmental charge that may
be imposed in connection with any transfer, split up, combination or exchange of
Right Certificates. The Rights Agent shall have no duty or obligation under this
Section 6 unless and until it is satisfied that all such taxes and/or charges
have been paid in full.
Upon receipt by the Corporation and the Rights Agent of evidence reasonably
satisfactory to them of the loss, theft, destruction or mutilation of a Right
Certificate, and, in case of loss, theft or destruction, of indemnity or
security satisfactory to them, and, at the Corporation's request, reimbursement
to the Corporation and the Rights Agent of all reasonable expenses incidental
thereto, and upon surrender to the Rights Agent and cancellation of the Right
Certificate if mutilated, the Corporation will make and deliver a new Right
Certificate of like tenor to the Rights Agent for delivery to the registered
holder in lieu of the Right Certificate so lost, stolen, destroyed or mutilated.
Section 7. Exercise of Rights; Purchase Price; Final Expiration Date
of Rights.
(a) The registered holder of any Right Certificate (other than a holder
whose Rights have become void pursuant to Section 11(a)(ii) hereof or have been
exchanged pursuant to Section 24 hereof) may exercise the Rights evidenced
thereby in whole or in part at any time after the Distribution Date upon
surrender of the Right Certificate, with the form of election to purchase on the
reverse side thereof duly executed, to the Rights Agent at the Rights Agent
Office, together with payment of the Purchase Price for each Common Share as to
which the Rights are exercised, at or prior to the earliest of (i) the Close of
Business on the Final Expiration Date, (ii) the Redemption Date, or (iii) the
time at which such Rights are exchanged as provided in Section 24 hereof.
(b) The purchase price for each Common Share to be purchased upon the
exercise of a Right shall initially be One hundred twenty Dollars ($120.00)
(the "Purchase Price"), shall be subject to adjustment from time to time as
provided in Section 11 hereof and shall be payable in lawful money of the
United States of America in accordance with paragraph (c) below.
(c) Upon receipt of a Right Certificate representing exercisable
Rights, with the form of election to purchase and certificate duly
executed, accompanied by payment of the Purchase Price for the number of
Common Share(s) to be purchased and an amount equal to any applicable
transfer tax required to be paid by the holder of such Right Certificate in
accordance with Section 9 hereof by cash, certified check, cashier's check
or money order payable to the order of the Corporation, the Rights Agent
shall thereupon promptly (i) (A) requisition from any transfer agent of the
Common Shares certificates for the number of Common Shares to be purchased
and the Corporation hereby irrevocably authorizes its transfer agent to
comply with all such requests, or (B) requisition from any depositary agent
for the Common Shares depositary receipts representing such number of
Common Shares as are to be purchased (in which case certificates for the
Common Shares represented by such receipts shall be deposited by the
transfer agent with the depositary agent) and the Corporation hereby
directs the depositary agent to comply with such request, (ii) when
appropriate, requisition from the Corporation the amount of cash to be paid
in lieu of issuance of fractional Common 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 Right Certificate, registered in such name or names as may
be designated by such holder and (iv) when appropriate, after receipt,
deliver such cash to or upon the order of the registered holder of such
Right Certificate.
(d) In case the registered holder of any Right Certificate shall
exercise less than all the Rights evidenced thereby, a new Right
Certificate evidencing Rights equivalent to the Rights remaining
unexercised shall be issued by the Rights Agent to the registered holder of
such Right Certificate or to his duly authorized assigns, subject to the
provisions of Section 6 and Section 14 hereof.
(e) Notwithstanding anything in this Agreement to the contrary,
neither the Rights Agent nor the Corporation shall be obligated to
undertake any action with respect to a registered holder upon the
occurrence of any purported exercise as set forth in this Section 7 unless
such registered holder shall have (i) properly completed and signed the
certificate following the form of election to purchase set forth on the
reverse side of the Right Certificate surrendered for such exercise and
(ii) provided such additional evidence of the identity of the Beneficial
Owner (or former Beneficial Owner) or Affiliates or Associates thereof as
the Corporation or the Rights Agent shall reasonably request.
Section 8. Cancellation and Destruction of Right Certificates. All
Right Certificates surrendered for the purpose of exercise, transfer, split
up, combination or exchange shall, if surrendered to the Corporation or to
any of its agents, be delivered to the Rights Agent for cancellation or in
canceled form, or, if surrendered to the Rights Agent, shall be canceled by
it, and no Right Certificates shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Rights Agreement. The
Corporation shall deliver to the Rights Agent for cancellation and
retirement, and the Rights Agent shall so cancel and retire, any other
Right Certificate purchased or acquired by the Corporation otherwise than
upon the exercise thereof. The Rights Agent shall deliver all canceled
Right Certificates to the Corporation, or shall, at the written request of
the Corporation, destroy such canceled Right Certificates, and in such case
shall deliver a certificate of destruction thereof to the Corporation.
Section 9. Status of Common Shares.
(a) The Corporation covenants and agrees that it will take all such
action as may be necessary to ensure that all Common Shares delivered upon
exercise of Rights shall, at the time of delivery of the certificates for
such Common Shares (subject to payment of the Purchase Price), be duly and
validly authorized and issued and fully paid and non-assessable shares.
(b) The Corporation further covenants and agrees that it will pay when
due and payable any and all taxes and governmental charges which may be
payable in respect of the issuance or delivery of the Right Certificates or
of any Common Shares upon the exercise of Rights. The Corporation shall
not, however, be required to pay any tax or governmental charge which may
be payable in respect of any transfer or delivery of Right Certificates to
a Person other than, or the issuance or delivery of certificates or
depositary receipts for the Common Shares in a name other than that of, the
registered holder of the Right Certificate evidencing Rights surrendered
for exercise or to issue or to deliver any certificates or depositary
receipts for Common Shares upon the exercise of any Rights until any such
tax or charge shall have been paid (any such tax or charge being payable by
the holder of such Right Certificate at the time of surrender) or until it
has been established to the Corporation's reasonable satisfaction that no
such tax or charge is due.
Section 10. Common Shares Record Date. Each Person in whose name any
certificate for Common Shares is issued upon the exercise of Rights shall
for all purposes be deemed to have become the holder of record of the
Common Shares represented thereby on, and such certificate shall be dated,
the date upon which the Right Certificate evidencing such Rights was duly
surrendered and payment of the Purchase Price (and any applicable taxes or
charges) was made. Prior to the exercise of the Rights evidenced thereby,
the holder of a Right Certificate shall not be entitled to any rights of a
holder of Common 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 Corporation,
except as provided herein.
Section 11. Adjustment of Purchase Price, Number of Shares or Number
of Rights. The Purchase Price, the number of Common Shares covered by each
Right and the number of Rights outstanding are subject to adjustment from
time to time as provided in this Section 11.
(a)(i) In the event the Corporation shall at any time after the date
of this Agreement (A) declare or pay a dividend on the Common Shares
payable in Common Shares, (B) subdivide the outstanding Common Shares, or
(C) combine the outstanding Common Shares into a smaller number of Common
Shares, except as otherwise provided in this Section 11(a), then in each
case (x) the Purchase Price in effect after such adjustment will be equal
to the Purchase Price in effect immediately prior to such adjustment
divided by the number of Common Shares (the "Expansion Factor") that a
holder of one Common Share immediately prior to such dividend, subdivision
or combination would hold thereafter as a result thereof and (y) each Right
held prior to such adjustment will become that number of Rights equal to
the Expansion Factor, and the adjusted number of Rights will be deemed to
be distributed among the Common Shares with respect to which the original
Rights were associated (if they remain outstanding) and the shares issued
in respect of such dividend, subdivision or combination, so that each such
Common Share will have exactly one Right associated with it. Each
adjustment made pursuant to this paragraph shall be made as of the payment
or effective date for the applicable dividend, subdivision or combination.
(ii) Subject to the following paragraph of this subparagraph (ii) and
to Section 24 of this Agreement, in the event any Person shall become an
Acquiring Person, each holder of a Right shall thereafter have a right to
receive, upon exercise thereof at a price equal to the then current
Purchase Price multiplied by the number of Common Shares for which a Right
is then exercisable, in accordance with the terms of this Agreement, such
number of Common Shares of the Corporation as shall equal the result
obtained by (x) multiplying the then current Purchase Price by the number
of Common Shares for which a Right is then exercisable and dividing that
product by (y) 50% of the then current per share market price of the
Corporation's Common Shares (determined pursuant to Section 11(d) hereof)
on the date such Person became an Acquiring Person. In the event that any
Person shall become an Acquiring Person and the Rights shall then be
outstanding, the Corporation shall not take any action that would eliminate
or diminish the benefits intended to be afforded by the Rights.
From and after the occurrence of such an event, any Rights that are or
were acquired or beneficially owned by such Acquiring Person (or any
Associate or Affiliate of such Acquiring Person) on or after the earlier of
(x) the Shares Acquisition Date and (y) the Distribution Date shall be void
and any holder of such Rights shall thereafter have no right to exercise
such Rights under any provision of this Agreement. No Right Certificate
shall be issued pursuant to Section 3 that represents Rights beneficially
owned by an Acquiring Person whose Rights would be null and void pursuant
to the preceding sentence or any Associate or Affiliate thereof; no Right
Certificate shall be issued at any time upon the transfer of any Rights to
an Acquiring Person whose Rights would be null and void pursuant to the
preceding sentence or any Associate or Affiliate thereof or to any nominee
of such Acquiring Person, Associate or Affiliate; and any Right Certificate
delivered to the Rights Agent for transfer to an Acquiring Person whose
Rights would be null and void pursuant to the preceding sentence or any
Associate or Affiliate thereof shall be canceled.
(iii) In the event that the number of Common Shares which are
authorized by the Corporation's articles of incorporation and not
outstanding or subscribed for, or reserved or otherwise committed for
issuance for purposes other than upon exercise of the Rights, are not
sufficient to permit the holder of each Right to purchase the number of
Common Shares to which he would be entitled upon the exercise in full of
the Rights in accordance with the foregoing subparagraph (ii) of paragraph
(a) of this Section 11, or should the Board of Directors so elect, the
Corporation shall: (A) determine the excess of (1) the value of the Common
Shares issuable upon the exercise of a Right (calculated as provided in the
last sentence of this subparagraph (iii)) pursuant to Section 11(a)(ii)
hereof (the "Current Value") over (2) the Purchase Price (such excess, the
"Spread"), and (B) with respect to each Right, make adequate provision to
substitute for such Common Shares, upon payment of the applicable Purchase
Price, any one or more of the following having an aggregate value
determined by the Board of Directors to be equal to the Current Value: (1)
cash, (2) a reduction in the Purchase Price, (3) Common Shares or other
equity securities of the Corporation (including, without limitation,
shares, or units of shares, of preferred stock which the Board of Directors
of the Corporation has determined to have the same value as shares of
Common Stock (such shares of preferred stock, "common stock equivalents")),
(4) debt securities of the Corporation, or (5) other assets; provided,
however, if the Corporation shall not have made adequate provision to
deliver value pursuant to clause (B) above within thirty (30) days
following the first occurrence of an event triggering the rights to
purchase Common Shares described in Section 11(a)(ii) the "Section
11(a)(ii) Trigger Date"), then the Corporation 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 (to the extent
available) and then, if necessary, cash, which shares and cash have an
aggregate value equal to the Spread. If the Board of Directors of the
Corporation shall determine in good faith that it is likely that sufficient
additional Common Shares could be authorized for issuance upon exercise in
full of the Rights, the thirty (30) day period set forth above may be
extended to the extent necessary, but not more than ninety (90) days after
the Section 11(a)(ii) Trigger Date, in order that the Corporation may seek
shareholder approval for the authorization of such additional shares (such
period, as it may be extended, the "Substitution Period"). To the extent
that the Corporation determines that some action need be taken pursuant to
the first and/or second sentences of this Section 11(a)(iii), the
Corporation (x) shall provide, subject to Section 7(e) hereof and the last
paragraph of Section 11(a)(ii) hereof, that such action shall apply
uniformly to all outstanding Rights, and (y) may suspend the exercisability
of the Rights until the expiration of the Substitution Period in order to
seek any authorization of additional shares and/or to decide the
appropriate form of distribution to be made pursuant to such first sentence
and to determine the value thereof. In the event of any such suspension,
the Corporation shall make a public announcement, and shall deliver to the
Rights Agent a statement, stating that the exercisability of the Rights has
been temporarily suspended. At such time as the suspension is no longer in
effect, the Corporation shall make another public announcement, and deliver
to the Rights Agent a statement, so stating. For purposes of this Section
11(a)(iii), the value of the Common Shares shall be the current per share
market price (as determined pursuant to Section 11(d)(i) hereof) of the
Common Shares on the Section 11(a)(ii) Trigger Date and the value of any
common stock equivalent shall be deemed to have the same value as the
Common Shares on such date.
(b) In the event the Corporation shall at any time after the date of
this Agreement issue any Common Shares otherwise than in a transaction
referred to in Section 11(a)(i) above, each such Common Share so issued
shall automatically have one new Right associated with it, which Right
shall be evidenced by the certificate representing such share.
(c) In the event the Corporation shall at any time after the date of
this Agreement issue or distribute any securities or assets in respect of,
in lieu of or in exchange for Common Shares (other than pursuant to a
regular periodic cash dividend or a dividend paid solely in Common Shares)
whether by dividend, in a reclassification or recapitalization (including
any such transaction involving a merger, consolidation or binding share
exchange), or otherwise, the Corporation shall make such adjustments, if
any, in the Purchase Price, number of Rights and/or securities or other
property purchasable upon exercise of Rights as the Board of Directors of
the Corporation, in its sole discretion, may deem to be appropriate under
the circumstances in order to adequately protect the interests of the
holders of Rights generally, and the Corporation and the Rights Agent shall
amend this Agreement as necessary to provide for such adjustments.
(d)(i) For the purpose of any computation hereunder, the "current per
share market price" of any security (a "Security" for the purpose of this
Section 11(d)(i)) on any date shall be deemed to be the average of the
daily closing prices per share of such Security for the 30 consecutive
Trading Days (as such term is hereinafter defined) immediately prior to
such date; provided, however, that in the event that the current per share
market price of the Security is determined during a period following the
announcement by the issuer of such Security of (A) a dividend or
distribution on such Security payable in shares of such Security or
securities convertible into such shares, or (B) any subdivision,
combination or reclassification of such Security and prior to the
expiration of 30 Trading Days after the ex-dividend date for such dividend
or distribution, or the record date for such subdivision, combination or
reclassification, then, and in each such case, the current per share market
price shall be appropriately adjusted to reflect the current market price
per share equivalent of such Security. The closing price for each day shall
be the last sale price, regular way, or, in case no such sale takes place
on such day, the average of the closing bid and asked prices, regular way,
in either case as reported in the principal consolidated transaction
reporting system with respect to securities listed or admitted to trading
on the New York Stock Exchange or, if the Security is not listed or
admitted to trading on the New York Stock Exchange, as reported in the
principal consolidated transaction reporting system with respect to
securities listed on the principal national securities exchange on which
the Security is listed or admitted to trading or, if the Security is not
listed or admitted to trading on any national securities exchange, the last
quoted price or, if not so quoted, the average of the high bid and low
asked prices in the over-the-counter market, as reported by the National
Association of Securities Dealers, Inc. Automated Quotations System
("NASDAQ") or such other system then in use, or, if on any such date the
Security is not quoted by any such organization, the average of the closing
bid and asked prices as furnished by a professional market maker making a
market in the Security selected by the Board of Directors of the
Corporation. The term "Trading Day" shall mean a day on which the principal
national securities exchange on which the Security is listed or admitted to
trading is open for the transaction of business or, if the Security is not
listed or admitted to trading on any national securities exchange, a
Business Day.
(ii) For the purpose of any computation hereunder, the "current per
share market price" of the Common Shares shall be determined in accordance
with the method set forth in Section 11(d)(i). If the Common Shares are not
publicly held or so listed or traded, "current per share market price"
shall mean the fair value per share as determined in good faith by the
Board of Directors of the Corporation, whose determination shall be
described in a statement filed with the Rights Agent.
(e) No adjustment in the Purchase Price shall be required unless such
adjustment would require an increase or decrease of at least 1% in the
Purchase Price; provided, however, that any adjustments which by reason of
this Section 11(e) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment. All calculations under
this Section 11 shall be made to the nearest cent or to the nearest one
one-thousandth of a Common Share or of any other share or security as the
case may be. Notwithstanding the first sentence of this Section 11(e), any
adjustment required by this Section 11 shall be made no later than three
years from the date of the transaction which requires such adjustment.
(f) If as a result of an adjustment made pursuant to Section 11(a)
hereof, the holder of any Right thereafter exercised shall become entitled
to receive any shares of capital stock of the Corporation other than Common
Shares, the number of such other shares so receivable upon exercise of any
Right shall thereafter be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the provisions
with respect to the Common Shares contained in Sections 11(a) and (c), and
the provisions of Sections 7, 9, 10 and 13 with respect to the Common
Shares shall apply on like terms to any such other shares.
(g) All Rights originally issued by the Corporation subsequent to any
adjustment made to the Purchase Price hereunder shall evidence the right to
purchase, at the adjusted Purchase Price, the number of Common Shares
purchasable from time to time hereunder upon exercise of the Rights, all
subject to further adjustment as provided herein.
(h) Unless the Corporation shall have exercised its election as
provided in Section 11(i), upon each adjustment of the Purchase Price as a
result of the calculations made in Section 11(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 Common Shares (calculated to the nearest one one-thousandth of a Common
Share) obtained by (i) multiplying (x) the number of share(s) 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 Corporation may elect on or after the date of any adjustment
of the Purchase Price to adjust the number of Rights in substitution for
any adjustment in the number of Common Shares purchasable upon the exercise
of a Right. Each of the Rights outstanding after such adjustment of the
number of Rights shall be exercisable for the number of Common Shares 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 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 Corporation shall
make a public announcement and promptly notify the Rights Agent of its
election to adjust the number of Rights, indicating the record date for the
adjustment, and, if known at the time, the amount of the adjustment to be
made. This record date may be the date on which the Purchase Price is
adjusted or any day thereafter, but, if the Right Certificates have been
distributed, shall be at least 10 days later than the date of the public
announcement. If Right Certificates have been distributed, upon each
adjustment of the number of Rights pursuant to this Section 11(i), the
Corporation shall, as promptly as practicable, cause to be distributed to
holders of record of Right Certificates on such record date Right
Certificates evidencing, subject to Section 14 hereof, the additional
Rights to which such holders shall be entitled as a result of such
adjustment, or, at the option of the Corporation, shall cause to be
distributed to such holders of record in substitution and replacement for
the Right Certificates held by such holders prior to the date of
adjustment, and upon surrender thereof, if required by the Corporation, new
Right Certificates evidencing all the Rights to which such holders shall be
entitled after such adjustment. Right Certificates to be so distributed
shall be issued, executed and countersigned in the manner provided for
herein and shall be registered in the names of the holders of record of
Right Certificates on the record date specified in the public announcement.
(j) Irrespective of any adjustment or change in the Purchase Price or
the number of Common Shares issuable upon the exercise of the Rights, the
Right Certificates theretofore and thereafter issued may continue to
express the Purchase Price and the number of Common Shares which were
expressed in the initial Right Certificates issued hereunder.
(k) Before taking any action that would cause an adjustment reducing
the Purchase Price below the then par value of the Common Shares issuable
upon exercise of the Rights, the Corporation shall take any corporate
action which may, in the opinion of its counsel, be necessary in order that
the Corporation may validly and legally issue fully paid and non-assessable
Common Shares at such adjusted Purchase Price.
(1) 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 Corporation may elect to defer (and shall promptly
notify the Rights Agent of any such election) until the occurrence of such
event the issuing to the holder of any Right exercised after such record
date of the Common Shares and other capital stock or securities of the
Corporation, if any, issuable upon such exercise over and above the Common
Shares and other capital stock or securities of the Corporation, if any,
issuable upon such exercise on the basis of the Purchase Price in effect
prior to such adjustment; provided, however, that the Corporation shall
deliver to such holder a due xxxx or other appropriate instrument
evidencing such holder's right to receive such additional shares upon the
occurrence of the event requiring such adjustment.
(m) Anything in this Section 11 to the contrary notwithstanding, the
Corporation shall be entitled to make such reductions in the Purchase
Price, in addition to those adjustments expressly required by this Section
11, as and to the extent that it in its sole discretion shall determine to
be advisable in order that any (i) consolidation or subdivision of the
Common Shares, (ii) issuance wholly for cash of Common Shares or securities
which by their terms are convertible into or exchangeable for Common
Shares, (iii) dividends on Common Shares payable in Common Shares or (iv)
other issuance of cash or securities hereafter made by the Corporation to
holders of its Common Shares shall not be taxable to such shareholders.
Section 12. Certificate of Adjustment. Whenever an adjustment is made
as provided in Sections 11 or 13 hereof, the Corporation shall promptly (a)
prepare a certificate setting forth such adjustment, and a brief statement
of the facts and computations accounting for such adjustment, (b) file with
the Rights Agent and with each transfer agent of the Common Shares a copy
of such certificate and (c) mail a brief summary thereof to each holder of
a Right Certificate in accordance with Section 25 hereof. The Rights Agent
shall be fully protected in relying on any such certificate and on any
adjustment therein contained and shall not be deemed to have knowledge of
any adjustment unless and until it shall have received such certificate.
Section 13. Consolidation, Merger or Sale or Transfer of Assets or
Earning Power. In the event that, at any time after a Person becomes an
Acquiring Person, directly or indirectly, (i) the Corporation shall
consolidate with, or merge with and into, any other Person, (ii) any Person
shall consolidate with the Corporation, or merge with and into the
Corporation and the Corporation shall be the continuing or surviving
corporation of such merger and, in connection with such merger, all or part
of the Common Shares shall be changed into or exchanged for stock or other
securities of any other Person (or the Corporation) or cash or any other
property, or (iii) the Corporation shall sell or otherwise transfer (or one
or more of its Subsidiaries shall sell or otherwise transfer), in one or
more transactions, assets or earning power aggregating 50% or more of the
assets or earning power of the Corporation and its Subsidiaries (taken as a
whole) to any other Person other than the Corporation or one or more of its
wholly-owned Subsidiaries, then, and in each such case, proper provision
shall be made so that (A) each holder of a Right (except as otherwise
provided herein) shall thereafter have the right to receive, upon the
exercise thereof at a price equal to the then current Purchase Price
multiplied by the number of Common Shares for which a Right is then
exercisable, in accordance with the terms of this Agreement, such number of
Common Shares of such other Person (including the Corporation as successor
thereto or as the surviving corporation) as shall equal the result obtained
by (x) multiplying the then current Purchase Price by the number of Common
Shares for which a Right is then exercisable and dividing that product by
(y) 50% of the then current per share market price of the Common Shares of
such other Person (determined pursuant to Section 11(d) hereof) on the date
of consummation of such consolidation, merger, sale or transfer; (B) the
issuer of such Common Shares shall thereafter be liable for, and shall
assume, by virtue of such consolidation, merger, sale or transfer, all the
obligations and duties of the Corporation pursuant to this Agreement; (C)
the term "Corporation" shall thereafter be deemed to refer to such issuer;
and (D) such issuer shall take such steps in connection with such
consummation as may be necessary to assure that the provisions hereof shall
thereafter be applicable, as nearly as reasonably may be, in relation to
the Common Shares thereafter deliverable upon the exercise of the Rights.
The Corporation covenants and agrees that it shall not consummate any such
consolidation, merger, sale or transfer unless prior thereto the
Corporation and such issuer shall have executed and delivered to the Rights
Agent a supplemental agreement so providing. The Corporation shall not
enter into any transaction of the kind referred to in this Section 13 if at
the time of such transaction there are any rights, warrants, instruments or
securities outstanding or any agreements or arrangements which, as a result
of the consummation of such transaction, would eliminate or substantially
diminish the benefits intended to be afforded by the Rights. The provisions
of this Section 13 shall similarly apply to successive mergers or
consolidations or sales or other transfers. For purposes hereof, the
"earning power" of the Corporation and its Subsidiaries shall be determined
in good faith by the Corporation's Board of Directors on the basis of the
operating earnings of each business operated by the Corporation and its
Subsidiaries during the three fiscal years preceding the date of such
determination (or, in the case of any business not operated by the
Corporation or any Subsidiary during three full fiscal years preceding such
date, during the period such business was operated by the Corporation or
any Subsidiary).
Section 14. Fractional Rights and Fractional Shares.
(a) The Corporation shall not be required to issue fractions of Rights
or to distribute Right Certificates which evidence fractional Rights. In
lieu of such fractional Rights, there shall be paid to the registered
holders of the Right Certificates with regard to which such fractional
Rights would otherwise be issuable, an amount in cash equal to the same
fraction of the current market value of a whole Right. For the purposes of
this Section 14(a), the current market value of a whole Right shall be the
closing price of the Rights for the Trading Day immediately prior to the
date on which such fractional Rights would have been otherwise issuable.
The closing price for any day shall be the last sale price, regular way,
or, in case no such sale takes place on such day, the average of the
closing bid and asked prices, regular way, in either case as reported in
the principal consolidated transaction reporting system with respect to
securities listed or admitted to trading on the New York Stock Exchange or,
if the Rights are not listed or admitted to trading on the New York Stock
Exchange, as reported in the principal consolidated transaction reporting
system with respect to securities listed on the principal national
securities exchange on which the Rights are listed or admitted to trading
or, if the Rights are not listed or admitted to trading on any national
securities exchange, the last quoted price or, if not so quoted, the
average of the high bid and low asked prices in the over-the-counter
market, as reported by NASDAQ or such other system then in use or, if on
any such date the Rights are not quoted by any such organization, the
average of the closing bid and asked prices as furnished by a professional
market maker making a market in the Rights selected by the Board of
Directors of the Corporation. If on any such date no such market maker is
making a market in the Rights, the fair value of the Rights on such date as
determined in good faith by the Board of Directors of the Corporation shall
be used.
(b) The Corporation shall not be required to issue fractions of Common
Shares upon exercise of the Rights or to distribute certificates which
evidence fractional Common Shares. Fractions of Common Shares may, at the
election of the Corporation, be evidenced by depositary receipts, pursuant
to an appropriate agreement between the Corporation and a depositary
selected by it; provided, that such agreement shall provide that the
holders of such depositary receipts shall have all the rights, privileges
and preferences to which they are entitled as beneficial owners of the
Common Shares represented by such depositary receipts. In lieu of
fractional Common Shares, the Corporation shall pay to each registered
holder of Right Certificates at the time such Rights are exercised as
herein provided an amount in cash equal to the same fraction of the current
market value of one Common Share as the fraction of one Common Share that
such holder would otherwise receive upon the exercise of the aggregate
number of rights exercised by such holder. For the purposes of this Section
14(b), the current market value of a Common Share shall be the closing
price of a Common Share (as determined pursuant to the second sentence of
Section 11(d)(i) hereof) for the Trading Day immediately prior to the date
of such exercise.
(c) The holder of a Right by the acceptance of the Right expressly
waives any right to receive fractional Rights or fractional shares upon
exercise of a Right (except as provided above).
Section 15. Rights of Action. All rights of action in respect of this
Agreement, excepting the rights of action given to the Rights Agent under
Sections 18 and 20 hereunder, are vested in the respective registered
holders of the Right Certificates (and, prior to the Distribution Date, the
registered holders of the Common Shares); and any registered holder of any
Right Certificate (or, prior to the Distribution Date, of the Common
Shares) may, without the consent of the Rights Agent or of the holder of
any other Right Certificate (or, prior to the Distribution Date, of the
Common Shares), on his own behalf and for his own benefit, enforce, and may
institute and maintain any suit, action or proceeding against the
Corporation to enforce, or otherwise act in respect of, his right to
exercise the Rights evidenced by such Right Certificate in the manner
provided in such Right Certificate and in this Agreement. Without limiting
the foregoing or any remedies available to the holders of Rights, it is
specifically acknowledged that the holders of Rights would not have an
adequate remedy at law for any breach of this Agreement and will be
entitled to specific performance of the obligations under, and injunctive
relief against actual or threatened violations of the obligations of any
Person subject to, this Agreement.
Section 16. Agreement of Right Holders. Every holder of a Right, by
accepting the same, consents and agrees with the Corporation and the Rights
Agent and with every other holder of a Right that:
(a) prior to the Distribution Date, the Rights will be transferable
only in connection with the transfer of the Common Shares;
(b) after the Distribution Date, the Right Certificates are
transferable only on the registry books maintained by the Rights Agent if
surrendered at the Rights Agent Office, duly endorsed or accompanied by a
proper instrument of transfer with a completed form of certification;
(c) the Corporation and the Rights Agent may deem and treat the Person
in whose name the Right Certificate (or, prior to the Distribution Date,
the associated Common Shares certificate) is registered as the absolute
owner thereof and of the Rights evidenced thereby (notwithstanding any
notations of ownership or writing on the Right Certificates or the
associated Common Shares certificate made by anyone other than the
Corporation or the Rights Agent) for all purposes whatsoever, and neither
the Corporation nor the Rights Agent shall be affected by any notice to the
contrary; and
(d) notwithstanding anything in this Agreement to the contrary,
neither the Corporation 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, judgment or
ruling issued by a court of competent jurisdiction or by a governmental,
regulatory or administrative agency or commission, or any statue, rule,
regulation or executive order promulgated or enacted by any governmental
agency prohibiting or otherwise restraining performance of such obligation.
Section 17. Right Certificate Holder Not Deemed a Shareholder. No
holder, as such, of any Right Certificate shall be entitled to vote,
receive dividends or be deemed for any purpose the holder of the Common
Shares or any other securities of the Corporation which may at any time be
issuable on the exercise of the Rights represented thereby nor shall
anything contained herein or in any Right Certificate be construed to
confer upon the holder of any Right Certificate, as such, any of the rights
of a shareholder of the Corporation or any right to vote for the election
of directors or upon any matter submitted to shareholders at any meeting
thereof, or to give or withhold consent to any corporate action, or to
receive notice of meetings or other actions affecting shareholders (except
as provided in Section 25 hereof), or to receive dividends or subscription
rights, or otherwise, until the Right or Rights evidenced by such Right
Certificate shall have been exercised in accordance with the provisions
hereof.
Section 18. Concerning the Rights Agent. The Corporation agrees to pay
to the Rights Agent such compensation as shall be agreed to in writing and
attached hereto between the Corporation and the Rights Agent 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 Corporation also agrees to indemnify the Rights Agent for, and to hold
it harmless against, any loss, liability, damage, judgment, fine, penalty,
claim, demand, settlement, cost or expense, incurred without gross
negligence, bad faith or willful misconduct (as each is finally determined
by a court of competent jurisdiction) on the part of the Rights Agent for
any action taken, suffered or omitted by the Rights Agent in connection
with the administration of this Agreement or the exercise or performance of
its duties hereunder, including, without limitation, the costs and expenses
of defending against any claim of liability arising therefrom. The
provisions of this Section 18 shall survive the termination of this
Agreement, the exercise or expiration of the Rights and the resignation or
removal of the Rights Agent. The costs and expenses incurred in enforcing
this right of indemnification shall be paid by the Corporation, unless it
is determined by a court of competent jurisdiction that the Rights Agent
does not have the right to be indemnified hereunder, in which case the
Rights Agent shall be solely responsible for all cost and expenses
incurred, including, without limitation, reimbursing the Corporation for
any such costs and expenses incurred by the Corporation in enforcing the
Rights Agent's right of indemnification prior to the date of the
determination by a court of competent jurisdiction that the Rights Agent is
not entitled to indemnification hereunder. Neither the Rights Agent nor the
Corporation, in defense of any claim or litigation, shall consent to entry
of any judgment or enter into any settlement without the express written
consent of the other Party.
The Rights Agent shall be authorized to rely on, shall be protected
and, subject to Section 20(c), 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 or the exercise or performance of its
duties hereunder in reliance upon any Right Certificate or certificate for
Common Shares or for other securities of the Corporation, instrument of
assignment or transfer, power of attorney, endorsement, affidavit, letter,
notice, direction, consent, certificate, statement, or other paper or
document believed by it to be genuine and to be signed, executed and, where
necessary, verified or acknowledged, by the proper Person or Persons.
Section 19. Merger or Consolidation or Change of Name of Rights Agent.
Any Person into which the Rights Agent or any successor Rights Agent may be
merged or with which it may be consolidated, or any Person resulting from
any merger or consolidation to which the Rights Agent or any successor
Rights Agent shall be a party, or any Person succeeding to the business of
the Rights Agent or any successor Rights Agent, shall be the successor to
the Rights Agent under this Agreement without the execution or filing of
any paper or any further act on the part of any of the parties hereto,
provided that such Person would be eligible for appointment as a successor
Rights Agent under the provisions of Section 21 hereof. In case at the time
such successor Rights Agent shall succeed to the agency created by this
Agreement, any of the Right Certificates shall have been countersigned but
not delivered, any such successor Rights Agent may adopt the
countersignature of the predecessor Rights Agent and deliver such Right
Certificates so countersigned; and in case at that time any of the Right
Certificates shall not have been countersigned, any successor Rights Agent
may countersign such Right Certificates either in the name of the
predecessor Rights Agent or in the name of the successor Rights Agent; and
in all such cases such Right Certificates shall have the full force
provided in the Right Certificates and in this Agreement.
In case at any time the name of the Rights Agent shall be changed and
at such time any of the Right Certificates shall have been countersigned
but not delivered, the Rights Agent may adopt the countersignature under
its prior name and deliver Right Certificates so countersigned; and in case
at that time any of the Right Certificates shall not have been
countersigned, the Rights Agent may countersign such Right Certificates
either in its prior name or in its changed name; and in all such cases such
Right Certificates shall have the full force provided in the Right
Certificates and in this Agreement.
Section 20. Duties of Rights Agent. The Rights Agent only undertakes
the duties and obligations expressly set forth in this Agreement and no
implied duties or obligations shall be read into this Agreement against the
Rights Agent. The Rights Agent shall perform those duties and obligations
upon the following terms and conditions, by all of which the Corporation
and the holders of Right Certificates, by their acceptance thereof, shall
be bound:
(a) The Rights Agent may consult with legal counsel (who may be legal
counsel for the Corporation), and the written advice or opinion of such
counsel shall be full and complete authorization and protection to the
Rights Agent, and the Rights Agent shall incur no liability for, or in
respect of, any action taken, suffered or omitted by it in good faith and
in accordance with such written advice or opinion.
(b) Whenever in the performance of its duties under this Agreement the
Rights Agent shall deem it necessary or desirable that any fact or matter
be proved or established by the Corporation prior to taking, suffering or
omitting any action hereunder, such fact or matter (unless other evidence
in respect thereof be herein specifically prescribed) may be deemed to be
conclusively proved and established by a certificate signed by any one of
the Chairman of the Board, the President, a Vice President, the Treasurer
or the Secretary of the Corporation and delivered to the Rights Agent; and
such certificate shall be full authorization and protection to the Rights
Agent, and the Rights Agent shall incur no liability for, or in respect of,
any action taken, suffered or omitted in good faith by it under the
provisions of this Agreement in reliance upon such certificate.
(c) Notwithstanding anything to the contrary contained in this Section
20 or elsewhere in this Agreement, the Rights Agent shall be liable
hereunder only for its own gross negligence, bad faith or willful
misconduct, as each is finally determined by a court of competent
jurisdiction. Anything to the contrary notwithstanding, in no event shall
the Rights Agent be liable for special, punitive, indirect, consequential
or incidental loss or damage of any kind whatsoever (including but not
limited to lost profits), even if the Rights Agent has been advised of the
likelihood of such loss or damage. Any liability of the Rights Agent under
this Rights Agreement will be limited to the amount of fees paid by the
Corporation to the Rights Agent hereunder. The provisions of this Section
20 shall survive the termination of this Agreement, the exercise or
expiration of the Rights and the resignation or removal of the Rights
Agent.
(d) The Rights Agent shall not be liable for or by reason of any of
the statements of fact or recitals contained in this Agreement or in the
Right Certificates (except as to its countersignature thereof) or be
required to verify the same, but all such statements and recitals are and
shall be deemed to have been made by the Corporation only.
(e) The Rights Agent shall not have any liability for, nor be under
any responsibility in respect of the validity of this Agreement or the
execution and delivery hereof (except the due execution hereof by the
Rights Agent) or in respect of the validity or execution of any Right
Certificate (except its countersignature thereof); nor shall it be
responsible or liable for any breach by the Corporation of any covenant or
condition contained in this Agreement or in any Right Certificate; nor
shall it be responsible or liable for any adjustment required under the
provisions of Section 11 hereof or, responsible or liable for the manner,
method or amount of any such adjustment or the ascertaining of the
existence of facts that would require any such adjustment (except with
respect to the exercise of Rights evidenced by Right Certificates after
actual notice of any such adjustment); nor shall it by any act hereunder be
deemed to make any representation or warranty as to the authorization or
reservation of any shares to be issued pursuant to this Agreement or any
Right Certificate or as to whether any shares will, when so issued, be
validly authorized and issued, fully paid and nonassessable.
(f) The Corporation agrees that it will perform, execute, acknowledge
and deliver or cause to be performed, executed, acknowledged end delivered
all such further and other acts, instruments and assurances as may
reasonably be required by the Rights Agent for the carrying out or
performing by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from
any one of the Chairman of the Board, the President, the Chief Financial
Officer, a Senior Vice President, the Secretary or the Treasurer of the
Corporation, and to apply to such officers for instructions in connection
with its duties, and such instructions shall be full authorization and
protection to the Rights Agent and the Rights Agent shall incur no
liability for, or in respect of, any action taken, suffered or omitted to
be taken by it in good faith in accordance with the instructions of any
such officer.
(h) The Rights Agent and any shareholder, director, officer, Affiliate
or employee of the Rights Agent may buy, sell or deal in any of the Rights
or other securities of the Corporation or become pecuniarily interested in
any transaction in which the Corporation may be interested, or contract
with or lend money to the Corporation 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
Corporation or for any other Person.
(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 Corporation, any
holders of Rights or any other Person resulting from any such act, default,
neglect or misconduct, absent gross negligence, bad faith or willful
misconduct, as finally determined by a court of competent jurisdiction, 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 its duties hereunder or in the exercise of its rights if
it believes that repayment of such funds or adequate indemnification
against such risk or liability is not assured to it.
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 Corporation and to
each transfer agent of the Common Shares by registered or certified mail,
and to the holders of the Right Certificates by first-class mail. The
Corporation 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 Shares
by registered or certified mail, and to the holders of the Right
Certificates by first-class mail. If the Rights Agent shall resign or be
removed or shall otherwise become incapable of acting, the Corporation
shall appoint a successor to the Rights Agent. If the Corporation 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 Right Certificate (who shall, with such notice, submit
his Right Certificate for inspection by the Corporation), then the
registered holder of any Right Certificate may apply to any court of
competent jurisdiction for the appointment of a new Rights Agent. Any
successor Rights Agent, whether appointed by the Corporation or by such a
court, shall be either a (i) Person organized and doing business under the
laws of the United States or of any state of the United States, in good
standing, which is authorized under such laws to exercise corporate trust
powers or shareholder services and is subject to supervision or examination
by federal or state authority and which has at the time of its appointment
as Rights Agent a combined capital and surplus of at least $100 million, or
(ii) an Affiliate of the Person described in clause (i) 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 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 Corporation shall
file notice thereof in writing with the predecessor Rights Agent and each
transfer agent of the Common Shares, and mail a notice thereof in writing
to the registered holders of the Right Certificates. Failure to give any
notice provided for in this Section 21, however, or any defect therein,
shall not affect the legality or validity of the resignation or removal of
the Rights Agent or the appointment of the successor Rights Agent, as the
case may be.
Section 22. Issuance of New Right Certificates. Notwithstanding any of
the provisions of this Agreement or of the Rights to the contrary, the
Corporation may, at its option, issue new Right Certificates evidencing
Rights in such form as may be approved by its Board of Directors to reflect
any adjustment or change in the Purchase Price and the number or kind or
class of shares or other securities or property purchasable under the Right
Certificates made in accordance with the provisions of this Agreement.
Section 23. Redemption.
(a) The Board of Directors of the Corporation may, at its option, at
any time prior to such time as any Person becomes an Acquiring Person,
redeem all but not less than all the then outstanding Rights at a
redemption price of $0.001 per Right, appropriately adjusted to reflect any
stock split, stock dividend or similar transaction occurring after the date
hereof (such redemption price being hereinafter referred to as the
"Redemption Price"). The redemption of the Rights by the Board of Directors
may be made effective at such time, on such basis and subject to such
conditions as the Board of Directors in its sole discretion may establish.
(b) Immediately upon the action of the Board of Directors of the
Corporation ordering the redemption of the Rights pursuant to paragraph (a)
of this Section 23, and without any further action and without any notice,
the right to exercise the Rights will terminate and the only right
thereafter of the holders of Rights shall be to receive the Redemption
Price. The Corporation shall promptly give the Rights Agent notice and
shall give public notice of any such redemption; provided, however, that
the failure to give, or any defect in, any such notice shall not affect the
validity of such redemption. Within 10 days after such action of the Board
of Directors ordering the redemption of the Rights pursuant to paragraph
(a), the Corporation shall mail a notice of redemption to all the holders
of the then outstanding Rights at their last addresses as they appear upon
the registry books of the Rights Agent or, prior to the Distribution Date,
on the registry books of the transfer agent for the Common Shares. Any
notice which is mailed in the manner herein provided shall be deemed given,
whether or not the holder receives the notice. If the payment of the
Redemption Price is not included with such notice, each such notice shall
state the method by which the payment of the Redemption Price will be made.
Neither the Corporation nor any of its Affiliates or Associates may redeem,
acquire or purchase for value any Rights at any time in any manner other
than that specifically set forth in this Section 23 or in Section 24
hereof, other than in connection with the purchase of Common Shares prior
to the Distribution Date.
Section 24. Exchange.
(a) The Board of Directors of the Corporation may, at its option, at
any time after any Person becomes an Acquiring Person, exchange all or part
of the then outstanding and exercisable Rights (which shall not include
Rights that have become null and void pursuant to the provisions of Section
11(a)(ii) hereof) for Common Shares at an exchange ratio of one Common
Share per Right, appropriately adjusted to reflect any stock split, stock
dividend or similar transaction occurring after the date hereof (such
exchange ratio being hereinafter referred to as the "Exchange Ratio").
Notwithstanding the foregoing, the Board of Directors shall not be
empowered to effect such exchange at any time after any Person (other than
the Corporation, any Subsidiary of the Corporation, any employee benefit
plan of the Corporation or any such Subsidiary, or any entity holding
Common Shares for or pursuant to the terms of any such plan), together with
all Affiliates and Associates of such Person, becomes the Beneficial Owner
of a majority of the Common Shares then outstanding.
(b) Immediately upon the action of the Board of Directors of the
Corporation ordering the exchange of any Rights pursuant to subsection (a)
of this Section 24 and without any further action and without any notice,
the right to exercise such Rights shall terminate and the only right
thereafter of a holder of such Rights shall be to receive that number of
Common Shares equal to the number of such Rights held by such holder
multiplied by the Exchange Ratio. The Corporation shall promptly give
public notice (and prompt notice to the Rights Agent) of any such exchange;
provided, however, that the failure to give, or any defect in, such notice
shall not affect the validity of such exchange. The Corporation promptly
shall mail a notice of any such exchange to all of the holders of such
Rights at their last addresses as they appear upon the registry books of
the Rights Agent. Any notice which is mailed in the manner herein provided
shall be deemed given, whether or not the holder receives the notice. Each
such notice of exchange will state the method by which the exchange of the
Common Shares for Rights will be effected and, in the event of any partial
exchange, the number of Rights which will be exchanged. Any partial
exchange shall be effected pro rata based on the number of Rights (other
than Rights which have become null and void pursuant to the provisions of
Section 11(a)(ii) hereof) held by each holder of Rights.
(c) In any exchange pursuant to this Section 24, the Corporation, at
its option, may substitute common stock equivalents for Common Shares
exchangeable for Rights, at the rate of an appropriate number of common
stock equivalents for each Common Share, as determined by the Board of
Directors in its sole discretion.
(d) In the event that there shall not be sufficient Common Shares or
common stock equivalents authorized by the Corporation's articles of
incorporation and not outstanding or subscribed for, or reserved or
otherwise committed for issuance for purposes other than upon exercise of
Rights, to permit any exchange of Rights as contemplated in accordance with
this Section 24, the Corporation shall take all such action as may be
necessary to authorize additional Common Shares or common stock
equivalents, for issuance upon exchange of the Rights.
Section 25. Notice of Certain Events.
(a) In case the Corporation shall after the Distribution Date propose
(i) to effect any consolidation or merger into or with, or to effect any
sale or other transfer (or to permit one or more of its Subsidiaries to
effect any sale or other transfer), in one or more transactions, of 50% or
more of the assets or earning power of the Corporation and its Subsidiaries
(taken as a whole) to, any other Person, (ii) to effect the liquidation,
dissolution or winding up of the Corporation, or (iii) to declare or pay
any dividend on the Common Shares payable in Common Shares or to effect a
subdivision, combination or consolidation of the Common Shares (by
reclassification or otherwise than by payment of dividends in Common
Shares), then, in each such case, the Corporation shall give to each holder
of a Right Certificate and the Rights Agent, in accordance with Section 26
hereof, a notice of such proposed action, which shall specify the record
date for the purposes of such stock dividend, or distribution of rights or
warrants, or the date on which such reclassification, consolidation,
merger, sale, transfer, liquidation, dissolution, or winding up is to take
place and the date of participation therein by the holders of the Common
Shares, if any such date is to be fixed, and such notice shall be so given
in the case of any action covered by clause (iii) above at least 10 days
prior to the record date for determining holders of the Common Shares for
purposes of such action, and in the case of any such other action, at least
10 days prior to the date of the taking of such proposed action or the date
of participation therein by the holders of the Common Shares, whichever
shall be the earlier.
(b) In case any event set forth in Section 11(a)(ii) hereof shall
occur, then the Corporation shall as soon as practicable thereafter give to
each holder of a Right Certificate and to the Rights Agent, in accordance
with Section 26 hereof, a notice of the occurrence of such event, which
notice shall describe such event and the consequences of such event to
holders of Rights under Section 11(a)(ii) hereof.
Section 26. Notices. Notices or demands authorized by this Agreement
to be given or made by the Rights Agent or by the holder of any Right
Certificate to or on the Corporation 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:
Washington Trust Bancorp, Inc.
00 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Secretary
Subject to the provisions of Section 21 hereof, any notice or demand
authorized by this Agreement to be given or made by the Corporation or by
the holder of any Right Certificate to or on the Rights Agent shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed (until another address is filed in writing with the Corporation)
as follows:
Mellon Investor Services LLC
0 Xxxxxx Xxxxxx, Xxxxx 0000
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Relationship Manager
Notices or demands authorized by this Agreement to be given or made by
the Corporation or the Rights Agent to the holder of any Right Certificate
shall be sufficiently given or made if in writing, 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 Corporation.
Section 27. Supplements and Amendments. The Corporation may from time
to time, and the Rights Agent shall, if the Corporation so directs,
supplement or amend this Agreement without the approval of any holders of
Right Certificates in order to cure any ambiguity, to correct or supplement
any provision contained herein which may be defective or inconsistent with
any other provisions herein, or to make any change to or delete any
provision hereof or to adopt any other provisions with respect to the
Rights which the Corporation may deem necessary or desirable. Any such
supplement or amendment will be evidenced by a writing signed by the
Corporation and the Rights Agent; provided, however, that from and after
such time as any Person becomes an Acquiring Person, this Agreement shall
not be amended or supplemented in any manner which would adversely affect
the interests of the holders of Rights (other than an Acquiring Person and
its Affiliates and Associates). Upon the delivery of a certificate from an
appropriate officer of the Corporation that states that the proposed
supplement or amendment complies with this Section 27, the Rights Agent
shall execute such supplement or amendment, provided, however, the Rights
Agent shall not be obligated to enter into any amendment or supplement to
this Agreement which changes or increases the Rights Agent's rights,
duties, liabilities or obligations hereunder.
Section 28. Successors. All the covenants and provisions of this
Agreement by or for the benefit of the Corporation or the Rights Agent
shall bind and inure to the benefit of their respective successors and
assigns hereunder.
Section 29. Benefits of this Agreement. Nothing in this Agreement
shall be construed to give to any Person other than the Corporation, the
Rights Agent and the registered holders of the Right Certificates (and,
prior to the Distribution Date, the Common Shares) any legal or equitable
right, remedy or claim under this Agreement; but this Agreement shall be
for the sole and exclusive benefit of the Corporation, the Rights Agent and
the registered holders of the Right Certificates (and, prior to the
Distribution Date, the Common Shares).
Section 30. Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction
or other authority to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions of this Agreement shall
remain in full force and effect and shall in no way be affected, impaired
or invalidated.
Section 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.
Section 34. Administration. The Board of Directors of the Corporation
shall have the exclusive power and authority to administer this Agreement
and to exercise all rights and powers specifically granted to the Board of
Directors or the Corporation or as may be necessary or advisable in the
administration of this Agreement. All such actions, calculations,
determinations and interpretations which are done or made by the Board of
Directors in good faith shall be final, conclusive and binding on the
Corporation, the Rights Agent, the holders of the Rights and all other
parties and shall not subject the Board of Directors to any liability to
the holders of the Rights. The Rights Agent may conclude without any
obligation or responsibility to investigation or inquiry whatsoever that
all actions, calculations, determination and interpretations which are done
or made by the Board of Directors were done or made by it in good faith.
[Remainder of the page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have caused this Rights
Agreement to be duly executed and their respective corporate seals to be
hereunder affixed and attested, all as of the day and year first above
written.
Attest: WASHINGTON TRUST BANCORP, INC.
Xxxxxx X. Xxxxx, XX By: Xxxxx X. Xxxxxxx
------------------- ---------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice Pres., Treasurer
and Chief Financial Officer
Attest: MELLON INVESTOR SERVICES LLC
By: Xxxx X. Xxxxxxxxxx
------------------- ---------------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Vice President
Exhibit A
Form of Right Certificate
Certificate No R- ______ Rights
NOT EXERCISABLE AFTER AUGUST 31, 2006 OR EARLIER IF REDEMPTION OR
EXCHANGE OCCURS. THE RIGHTS ARE SUBJECT TO REDEMPTION AT $0.001 PER
RIGHT AND TO EXCHANGE ON THE TERMS SET FORTH IN THE AMENDED AND
RESTATED RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS
THAT ARE OR WERE BENEFICIALLY OWNED BY AN ACQUIRING PERSON OR ANY
ASSOCIATES OR AFFILIATES THEREOF (AS SUCH TERMS ARE DEFINED IN
THE RIGHTS AGREEMENT) OR ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY
BECOME NULL AND VOID.
Right Certificate
WASHINGTON TRUST BANCORP, INC.
This certifies that _______________________, or registered assigns, is
the registered owner of the number of Rights set forth above, each of which
entitles the owner thereof, subject to the terms, provisions and conditions
of the Amended and Restated Rights Agreement, dated as of March 1, 2002
(the "Rights Agreement"), between Washington Trust Bancorp, Inc., a Rhode
Island corporation (the "Corporation"), and Mellon Investor Services LLC,
as Rights Agent (the "Rights Agent"), to purchase from the Corporation at
any time after the Distribution Date (as such term is defined in the Rights
Agreement and prior to 5:00 P.M., Providence, Rhode Island time, on August
31, 2006, at the office of the Rights Agent, or at the office of its
successor as Rights Agent, one fully paid non-assessable share of Common
Stock, par value $0.0625 per share (the "Common Shares"), of the
Corporation, at a purchase price of $120.00 per Common Share (the "Purchase
Price"), upon presentation and surrender of this Right Certificate with the
certification and the Form of Election to Purchase duly executed. The
number of Rights evidenced by this Right Certificate (and the number of
Common Shares which may be purchased upon exercise hereof) set forth above,
and the Purchase Price set forth above, are the number and Purchase Price
as of September 3, 1996, based on the Common Shares as constituted at such
date. As provided in the Rights Agreement, the Purchase Price and the
number of Common Shares which may be purchased upon the exercise of the
Rights evidenced by this Right Certificate are subject to modification and
adjustment upon the happening of certain events.
From and after the occurrence of an event described in Section
11(a)(ii) of the Rights Agreement, if the Rights evidenced by this Right
Certificate are or were at any time on or after the earlier of (x) the
Shares Acquisition Date (as such term is defined in the Rights Agreement)
and (y) the Distribution Date (as such term is defined in the Rights
Agreement) acquired or beneficially owned by an Acquiring Person or an
Associate or Affiliate of an Acquiring Person (as such terms are defined in
the Rights Agreement), such Rights shall become null and void, and any
holder of such Rights shall thereafter have no right to exercise such
Rights.
This Right Certificate is subject to all of the terms, provisions and
conditions of the Rights Agreement, which terms, provisions and conditions
are hereby incorporated herein by reference and made a part hereof and to
which Rights Agreement reference is hereby made for a full description of
the rights, limitations of rights, obligations, duties and immunities
hereunder of the Rights Agent, the Corporation and the holders of the Right
Certificates. Copies of the Rights Agreement are on file at the principal
executive offices of the Corporation and the offices of the Rights Agent.
This Right Certificate, with or without other Right Certificates, upon
surrender at the office of the Rights Agent, may be exchanged for another
Right Certificate or Right Certificates of like tenor and date evidencing
Rights entitling the holder to purchase a like aggregate number of Common
Shares as the Rights evidenced by the Right Certificate or Right
Certificates surrendered shall have entitled such holder to purchase. If
this Right Certificate shall be exercised in part, the holder shall be
entitled to receive upon surrender hereof another Right Certificate or
Right Certificates for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights
evidenced by this Certificate (i) may be redeemed by the Corporation at a
redemption price of $0.001 per Right or (ii) may be exchanged in whole or
in part for shares of the Corporation's Common Stock, par value $0.0625 per
share.
No fractional Common Shares are required to be issued upon the
exercise of any Right or Rights evidenced hereby. Fractional shares may, at
the election of the Corporation, be evidenced by depositary receipts. A
cash payment may be made in lieu of fractional shares as provided in the
Rights Agreement.
No holder of this Right Certificate shall be entitled to vote or
receive dividends or be deemed for any purpose the holder of the Common
Shares or of any other securities of the Corporation 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 shareholder of the Corporation or any right
to vote for the election of directors or upon any matter submitted to
shareholders at any meeting thereof, or to give or withhold consent to any
corporate action, or to receive notice of meetings or other actions
affecting shareholders (except as provided in the Rights Agreement), or to
receive dividends or subscription rights, or otherwise, until the Right or
Rights evidenced by this Right Certificate shall have been exercised as
provided in the Rights Agreement.
This Right Certificate shall not be valid or obligatory for any
purpose until it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the
Corporation and its corporate seal. Dated as of _________________, _______.
Attest: WASHINGTON TRUST BANCORP, INC.
______________________________ By:______________________________
Countersigned:
______________________________
Mellon Investor Services LLC,
as Rights Agent
By:___________________________
Authorized Signature
Form of Reverse Side of Right Certificate
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Right Certificate.)
FOR VALUE RECEIVED __________________________sells, , assigns and
transfers unto ____________________________________________________________
_______________________________ (Please print name and address of
transferee) this Right Certificate, together with all right, title and
interest therein, and does hereby irrevocably constitute and appoint ,
Attorney, to transfer the within Right Certificate on the books of the
within-named Corporation, with full power of substitution.
Dated: ______________,________
_______________________
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered
national securities exchange, a member of the National Association of
Securities Dealers, Inc., or a commercial bank or trust Corporation having
an office or correspondent in the United States.
--------------------------------------------------------------------------------
The undersigned hereby certifies that the Rights evidenced by this
Right Certificate are not beneficially owned by an Acquiring Person or an
Affiliate or Associate thereof (as defined in the Rights Agreement).
_______________________
Signature
--------------------------------------------------------------------------------
Form of Reverse Side of Right Certificate -- continued
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to
exercise the Right Certificate.)
To: WASHINGTON TRUST BANCORP, INC.:
The undersigned hereby irrevocably elects to exercise
______________________________ Rights represented by this Right Certificate
to purchase the Common Shares issuable upon the exercise of such Rights and
requests that certificates for such Common Shares be issued in the name of:
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
Right Certificate, a new Right Certificate for the balance remaining of
such Rights shall be registered in the name of and delivered to:
Please insert social security
or other identifying number
________________________________________________________________________________
(Please print name and address)
________________________________________________________________________________
Dated: _______________, ________
______________________________
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered
national securities exchange, a member of the National Association of
Securities Dealers, Inc., or a commercial bank or trust company having an
office or correspondent in the United States.
--------------------------------------------------------------------------------
The undersigned hereby certifies that the Rights evidenced by this
Right Certificate are not beneficially owned by an Acquiring Person or an
Affiliate or Associate thereof (as defined in the Rights Agreement).
______________________________
Signature
--------------------------------------------------------------------------------
NOTICE
The signature in the foregoing Forms of Assignment and Election must
conform to the name as written upon the face of this Right Certificate in
every particular, without alteration or enlargement or any change
whatsoever.
In the event the certification set forth above in the Form of
Assignment or the Form of Election to Purchase, as the case may be, is not
completed, the Corporation and the Rights Agent will deem the beneficial
owner of the Rights evidenced by this Right Certificate to be an Acquiring
Person or an Affiliate or Associate thereof (as defined in the Rights
Agreement) and such Assignment or Election to Purchase will not be honored.
Exhibit B
SUMMARY OF RIGHTS
On August 15, 1996, the Board of Directors of Washington Trust
Bancorp, Inc. (the "Corporation") declared a dividend of one common share
purchase right (a "Right") for each share of common stock, par value
$0.0625 per share (the "Common Shares") outstanding on September 3, 1996
(the "Record Date") to the shareholders of record on that date. Each Right
entitles the registered holder to purchase from the Corporation, one Common
Share of the Corporation, at a price of $120.00 per Common Share (the
"Purchase Price"), subject to adjustment. The description and terms of the
Rights are set forth in the Amended and Restated Rights Agreement, dated as
of March 1, 2002 (the "Rights Agreement"), between the Corporation and
Mellon Investor Services LLC, as Rights Agent (the "Rights Agent").
Until the earlier to occur of (i) 10 days following a public
announcement that a person or group of affiliated or associated persons (an
"Acquiring Person") has acquired beneficial ownership of 15% or more of the
outstanding Common Shares, or (ii) 10 business days (or such later date as
may be determined by action of the Board of Directors prior to such time as
any Person becomes an Acquiring Person) following the commencement of, or
announcement of an intention to make, a tender offer or exchange offer the
consummation of which would result in the beneficial ownership by a person
or group of 15% or more of such outstanding Common Shares (the earlier of
such dates being called the "Distribution Date"), the Rights will be
evidenced, with respect to any of the Common Share certificates outstanding
as of the Record Date, by such Common Share certificate with a copy of this
Summary of Rights attached thereto.
In the event any Person becomes an Acquiring Person, each holder of a
Right shall thereafter have a right to receive, upon exercise thereof at a
price equal to the then current Purchase Price multiplied by the number of
Common Shares for which a Right is then exercisable, such number of Common
Shares of the Corporation as shall equal the result obtained by (x)
multiplying the then current Purchase Price by the number of Common Shares
for which a Right is then exercisable and dividing that product by (y) 50%
of the then current per share market price of the Corporation's Common
Shares. From and after the occurrence of such an event, any Rights owned by
such Acquiring Person or its affiliates shall be void and any holder of
such Rights shall have no right to exercise such Rights.
The Rights Agreement provides that, until the Distribution Date, the
Rights will be transferred with and only with the Common Shares. Until the
Distribution Date (or earlier redemption or expiration of the Rights), new
Common Share certificates issued after the Record Date or upon transfer or
new issuance of Common Shares will contain a notation incorporating the
Agreement by reference. Until the Distribution Date (or earlier redemption
or expiration of the Rights), the surrender for transfer of any
certificates for Common Shares outstanding as of the Record Date, even
without such notation or a copy of this Summary of Rights being attached
thereto, will also constitute the transfer of the Rights associated with
the Common Shares represented by such certificate. As soon as practicable
following the Distribution Date, separate certificates evidencing the
Rights ("Right Certificates") will be mailed to holders of record of the
Common Shares as of the Close of Business on the Distribution Date and such
separate Right Certificates alone will evidence the Rights.
The Rights are not exercisable until the Distribution Date. The Rights
will expire on August 31, 2006 (the "Final Expiration Date"), unless the
Final Expiration Date is extended or unless the Rights are earlier redeemed
by the Corporation, in each case, as described below.
The Purchase Price payable, and the number of Common Shares or other
securities or property issuable, upon exercise of the Rights are subject to
adjustment from time to time to prevent dilution in the event of a stock
dividend on, or a subdivision or combination of, the Common Shares, in
connection with a distribution of securities or assets in respect of, in
lieu of or in exchange for Common Shares, whether by dividend, in a
reclassification or recapitalization or otherwise as set forth in the
Rights Agreement.
In the event that any person becomes an Acquiring Person, proper
provision shall be made so that each holder of a Right, other than Rights
beneficially owned by the Acquiring Person and its Affiliates and
Associates (which will thereafter be null and void), will thereafter have
the right to receive upon exercise that number of Common Shares having a
market value of two times the exercise price of the Right.
In the event that, at any time after a Person becomes an Acquiring
Person, the Corporation is acquired in a merger or other business
combination transaction or 50% or more of its consolidated assets or
earning power are sold, proper provision will be made so that each holder
of a Right will thereafter have the right to receive, upon the exercise
thereof at the then current exercise price of the Right, that number of
shares of common stock of the acquiring company which at the time of such
transaction will have a market value of two times the exercise price of the
Right.
If the Corporation does not have sufficient Common Shares to satisfy
such obligation to issue Common Shares, or if the Board of Directors so
elects, the Corporation shall deliver upon payment of the exercise price of
a Right an amount of cash or securities equivalent in value to the Common
Shares issuable upon exercise of a Right; provided that, if the Corporation
fails to meet such obligation within 30 days following the later of (x) the
first occurrence of an event triggering the right to purchase Common Shares
and (y) the date on which the Corporation's right to redeem the Rights
expires, the Corporation must deliver, upon exercise of a Right but without
requiring payment of the exercise price then in effect, Common Shares (to
the extent available) and cash equal in value to the difference between the
value of the Common Shares otherwise issuable upon the exercise of a Right
and the exercise price then in effect. The Board of Directors may extend
the 30-day period described above for up to an additional 60 days to permit
the taking of action that may be necessary to authorize sufficient
additional Common Shares to permit the issuance of Common Shares upon the
exercise in full of the Rights.
At any time after any Person becomes an Acquiring Person and prior to
the acquisition by any person or group of a majority of the outstanding
Common Shares, the Board of Directors of the Corporation may exchange the
Rights (other than Rights owned by such person or group which have become
null and void), in whole or in part, at an exchange ratio of one Common
Share per Right (subject to adjustment).
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments require an adjustment of at least 1%
in such Purchase Price. No fractional Common Shares are required to be
issued. Fractional shares may, at the election of the Corporation, be
evidenced by depositary receipts. In lieu of fractional shares, an
adjustment in cash will be made based on the market price of the Common
Shares on the last trading day prior to the date of exercise.
At any time prior to the time any Person becomes an Acquiring
Person, the Board of Directors of the Corporation may redeem the
Rights in whole, but not in part, at a price of $0.001 per Right (the
"Redemption Price"). The redemption of the Rights may be made
effective at such time, on such basis and with such conditions as the
Board of Directors in its sole discretion may establish. Immediately
upon any redemption of the Rights, the right to exercise the Rights
will terminate and the only right of the holders of Rights will be to
receive the Redemption Price.
The terms of the Rights may be amended by the Board of Directors
of the Corporation without the consent of the holders of the Rights,
except that from and after such time as any person becomes an
Acquiring Person no such amendment may adversely affect the interests
of the holders of the Rights (other than the Acquiring Person and its
Affiliates and Associates).
Until a Right is exercised, the holder thereof, as such, will
have no rights as a shareholder of the Corporation, including, without
limitation, the right to vote or to receive dividends.
A copy of the Agreement is available free of charge from the
Corporation. This summary description of the Rights does not purport
to be complete and is qualified in its entirety by reference to the
Rights Agreement, which is hereby incorporated herein by reference.
