EXHIBIT 4.1
THE MAY DEPARTMENT STORES COMPANY
and
THE BANK OF NEW YORK
Rights Agent
______________________
Amended and Restated Rights Agreement
Dated as of August 31, 2004
TABLE OF CONTENT
Section 1. Certain Definitions. . . . . . . . . . . . . . . . . . . . . . . . 2
(a) Acquiring Person. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(b) Affiliate and Associate. . . . . . . . . . . . . . . . . . . . . . . . .3
(c) Beneficial Owner. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(d) Business Day. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(e) Close of business. . . . . . . . . . . . . . . . . . . . . . . . . . . .5
(f) Common Stock. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(g) Flip-In Event. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
(h) Flip-Over Event. . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
(i) Person. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(j) Preferred Stock. . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
(k) Qualified Offer. . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
(l) Stock Acquisition Date. . . . . . . . . . . . . . . . . . . . . . . . .6
(m) Subsidiary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(n) Triggering Event. . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 2. Appointment of Rights Agent. . . . . . . . . . . . . . . . . . . . 6
Section 3. Issue of Right Certificates. . . . . . . . . . . . . . . . . . . . 6
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
Section 4. Form of Right Certificates. . . . . . . . . . . . . . . . . . . . .8
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
Section 5. Countersignature and Registration. . . . . . . . . . . . . . . . . 9
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 6. Transfer, Split Up, Combination and Exchange of Right
Certificates; Mutilated, Destroyed, Lost or Stolen Right
Certificates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
i
Section 7. Exercise of Rights; Purchase Price; Expiration Date of
Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 8. Cancellation and Destruction of Right Certificates . . . . . . . .14
Section 9. Reservation and Availability of Capital Stock . . . . . . . . . . 14
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 10. Preferred Stock Record Date . . . . . . . . . . . . . . . . . . .16
Section 11. Adjustment of Purchase Price, Number and Kind of
Shares or Number of Rights . . . . . . . . . . . . . . . . . . . . . . . . . .16
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
(I) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
(j) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
ii
(k) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
(l) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
(m) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
(n) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
(o) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
(p) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 12. Certificate of Adjusted Purchase Price or Number of
Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29
Section 13. Consolidation, Merger or Sale or Transfer of Assets,
Cash Flow or Earning Power . . . . . . . . . . . . . . . . . . . . . . . . . .30
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 14. Fractional Rights and Fractional Shares . . . . . . . . . . . . .34
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 15. Rights of Action . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 16. Agreement of Rights Holders . . . . . . . . . . . . . . . . . . .37
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 17. Right Certificate Holder Not Deemed a Shareowner . . . . . . . . 37
Section 18. Concerning the Rights Agent . . . . . . . . . . . . . . . . . . .38
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
iii
Section 19. Merger or Consolidation or Change of Name of Rights
Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 20. Duties of Rights Agent . . . . . . . . . . . . . . . . . . . . . 39
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
(I) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
(j) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
(k) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
(l) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
(m) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
(n) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 21. Change of Rights Agent . . . . . . . . . . . . . . . . . . . . . 43
Section 22. Issuance of New Right Certificates . . . . . . . . . . . . . . . 44
Section 23. Redemption and Termination . . . . . . . . . . . . . . . . . . . 44
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 24. Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
iv
Section 25. Notice of Certain Events . . . . . . . . . . . . . . . . . . . . 47
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 26. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . .49
Section 27. Supplements and Amendments . . . . . . . . . . . . . . . . . . . 49
Section 28. Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 29. Determinations and Actions by the Board of Directors,
etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 30. Benefits of this Agreement . . . . . . . . . . . . . . . . . . . 51
Section 31. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 32. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . .52
Section 33. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 34. Descriptive Headings . . . . . . . . . . . . . . . . . . . . . . 52
Exhibit A Form of Right Certificate . . . . . . . . . . . . . . . . . . . .54
v
AMENDED AND RESTATED RIGHTS AGREEMENT
AMENDED AND RESTATED RIGHTS AGREEMENT, dated as of August 31,
2004 (the "Agreement"), between THE MAY DEPARTMENT STORES COMPANY,
a Delaware corporation (the "Company"), and THE BANK OF NEW YORK, a
banking company organized under the laws of New York (the "Rights
Agent").
W I T N E S S E T H
WHEREAS, on February 21, 1986, the Board of Directors of The
May Department Stores Company, a New York corporation ("May-NY")
authorized and declared a dividend distribution of one Right for
each share of common stock of May-NY outstanding at the close of
business on March 3, 1986 (the "1986 Record Date"), and authorized
the issuance of one Right (as such number was subsequently adjusted
pursuant to the provisions of Section 11(p) of the Rights
Agreement, dated as of February 21, 1986 (the "1986 Agreement"), as
amended and restated as of May 2, 1988, and as amended on May 11,
1993 (the "1988 Agreement"), between May-NY and the Rights Agent)
for each share of common stock of May-NY issued between the 1986
Record Date (whether originally issued or delivered from the
Company's treasury) and the Distribution Date (as defined in the
1988 Agreement), each Right initially representing the right to
purchase one one-hundredth of a Junior Participating Preference
Share of May-NY having the rights, powers and preferences set forth
in the Certificate of Incorporation of May-NY, as restated and
filed with the Secretary of State of the State of New York on March
22, 1994, and as it may be amended from time to time hereafter (the
"May-NY Certificate of Incorporation"), upon the terms and subject
to the conditions set forth in the 1988 Agreement (the "1988
Rights");
WHEREAS, on April 15, 1988, the Board of Directors of May-NY,
in accordance with Section 26 of the 1986 Agreement, determined it
desirable and in the best interests of May-NY and its shareowners
for May-NY to supplement and amend certain provisions of the 1986
Agreement and on May 2, 1988 implemented such amendments by
executing the 1988 Agreement;
WHEREAS, effective as of May 11, 1993, May-NY executed an
"Amendment to Rights Agreement" to reflect formally the appointment
of The Bank of New York as transfer agent for all of the issued and
1
outstanding stock of May-NY and as Rights Agent under the 1988
Rights Agreement;
WHEREAS, on August 19, 1994, the Board of Directors of May-NY
extended the 1988 Agreement and authorized and declared a dividend
distribution of one Right for each share of common stock of May-NY
outstanding upon the expiration date of the 1988 Agreement (the
"Record Date"), and authorized the issuance of one Right (as such
number was subsequently adjusted pursuant to the provisions of
Section 11(p) of the Rights Agreement, dated as of August 19, 1994
between May-NY and the Rights Agent (the "1994 Agreement")) for
each share of common stock of May-NY issued between the Record Date
(whether originally issued or delivered from May-NY's treasury) and
the distribution date defined in the 1994 Agreement, each Right
initially representing the right to purchase one four-hundredth of
a Junior Participating Preference Share of May-NY having the
rights, powers and preferences set forth in the May-NY Certificate
of Incorporation (the "Rights");
WHEREAS, effective as of May 24, 1996, May-NY executed an
"Assignment and Assumption Agreement" to reflect formally (i) the
reincorporation of the publicly traded entity from New York to
Delaware by means of a statutory share exchange pursuant to which
each share of common stock of May-NY with its associated Right was
exchanged for a share of Common Stock (as hereinafter defined) of
the Company with its associated Right, having the rights, powers
and preferences set forth in the Company's Amended and Restated
Certificate of Incorporation dated May 22, 1996, as it may be
amended from time to time (the "Certificate of Incorporation"), and
(ii) the assignment to and assumption by the Company of all of the
rights and obligations of May-NY under the 1994 Agreement;
WHEREAS, on August 20, 2004, the Board of Directors of the
Company determined it desirable and in the best interests of the
Company and its shareowners for the Company to extend the 1994
Agreement and to amend certain provisions of the 1994 Agreement,
and on August 31, 2004 the Company implemented such amendments by
executing this Agreement
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein set forth, the parties hereby agree as
follows:
Section 1. Certain Definitions. For purposes of this
Agreement, the following terms have the meanings indicated:
2
(a) "Acquiring Person" shall mean any Person (as such term is
hereinafter defined) who or which, together with all Affiliates (as
such term is hereinafter defined) and Associates (as such term is
hereinafter defined) of such Person, shall be the Beneficial Owner
(as such term is hereinafter defined) of 15% or more of the shares
of Common Stock then outstanding, but shall not include the
following "exempted" Persons:
(i) the Company,
(ii) any Subsidiary of the Company,
(iii) any employee benefit plan of the Company or of any
Subsidiary of the Company, or any Person or entity organized,
appointed or established by or for the Company for, or
pursuant to the terms of, any such plan, or
(iv) any such Person who has reported or is required to
report such ownership (but less than 20%) on Schedule 13G
under the Securities and Exchange Act of 1934, as amended and
in effect on the date of this Agreement (the "Exchange Act")
(or any comparable or successor report) or on Schedule 13D
under the Exchange Act (or any comparable or successor report)
which Schedule 13D does not state any intention to or reserve
the right to control or influence the management or policies
of the Company or engage in any of the actions specified in
Item 4 of such schedule (other than the disposition of the
Common Stock ) and, within 10 Business Days of being requested
by the Company to advise it regarding the same, certifies to
the Company that such Person acquired shares of Common Stock
in excess of 14.9% inadvertently or without knowledge of the
terms of the Rights and who, together with all Affiliates and
Associates, thereafter does not acquire additional shares of
Common Stock while the Beneficial Owner of 15% or more of the
shares of Common Stock then outstanding; provided, however,
that if the Person requested to so certify fails to do so
within 10 Business Days, then such Person shall become an
Acquiring Person immediately after such 10-Business-Day
period.
(b) "Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General Rules
and Regulations under the Exchange Act.
(c) A Person shall be deemed the "Beneficial Owner" of, and
shall be deemed to "beneficially own," any securities:
3
(i) which such Person or any of such Person's Affiliates
or Associates, directly or indirectly, has the right to
acquire (whether such right is exercisable immediately or only
after the passage of time) pursuant to any agreement,
arrangement or understanding (whether or not in writing) or
upon the exercise of conversion rights, exchange rights,
rights, warrants or options, or otherwise; provided, however,
that a Person shall not be deemed the "Beneficial Owner" of,
or be deemed to "beneficially own," (A) securities tendered
pursuant to a tender or exchange offer made by such Person or
any of such Person's Affiliates or Associates until such
tendered securities are accepted for purchase or exchange, or
(B) securities issuable upon exercise of Rights at any time
prior to the occurrence of a Triggering Event, or (C)
securities issuable upon exercise of Rights from and after the
occurrence of a Triggering Event which Rights were acquired by
such Person or any of such Person's Affiliates or Associates
prior to the Distribution Date or pursuant to Section 3(a) or
Section 22 hereof (the "Original Rights") or pursuant to
Section 11(i) hereof in connection with an adjustment made
with respect to any Original Rights;
(ii) which such Person or any of such Person's
Affiliates or Associates, directly or indirectly, has the
right to vote or dispose of or has "beneficial ownership" of
(as determined pursuant to Rule 13d-3 of the General Rules and
Regulations under the Exchange Act), including pursuant to any
agreement, arrangement or understanding, whether or not in
writing; provided, however, that a Person shall not be deemed
the "Beneficial Owner" of, or to "beneficially own," any
security under this subparagraph (ii) as a result of an
agreement, arrangement or understanding to vote such security
if such agreement, arrangement or understanding: (A) arises
solely from a revocable proxy given in response to a public
proxy or consent solicitation made pursuant to, and in
accordance with, the applicable provisions of the General
Rules and Regulations under the Exchange Act, and (B) is not
also then reportable by such Person on a Schedule 13D under
the Exchange Act (or any comparable or successor report); or
(iii) which are "beneficially owned", directly or
indirectly, by any other Person (or any Affiliate or Associate
thereof) with which such Person (or any of such Person's
Affiliates or Associates) has any agreement, arrangement or
understanding (whether or not in writing), for the purpose of
4
acquiring, holding, voting (except pursuant to a revocable
proxy as described in the proviso to subparagraph (ii) of this
paragraph (c)) or disposing of any voting securities of the
Company; provided, however, that nothing in this paragraph (c)
shall cause a Person engaged in business as an underwriter of
securities to be deemed the "Beneficial Owner" of, or to be
deemed to "beneficially own," any securities acquired through
such Person's participation in good faith in a firm commitment
underwriting until the expiration of forty calendar days after
the date of such acquisition.
(d) "Business Day" shall mean any day other than a Saturday,
Sunday or a day on which banking institutions in the State of New
York are authorized or obligated by law or executive order to
close.
(e) "Close of business" on any given date shall mean 5:00
P.M., New York time, on such date; provided, however, that if such
date is not a Business Day it shall mean 5:00 P.M., New York time,
on the next succeeding Business Day.
(f) "Common Stock" shall mean the common stock, par value
$.50 per share, of the Company, except that "Common Stock" when
used with reference to any Person other than the Company shall mean
the capital stock of such Person with the greatest voting power, or
the equity securities or other equity interest having power to
control or direct the management, of such Person.
(g) "Flip-In Event" shall mean any event described in Section
11(a)(ii)(A) or (B) hereof.
(h) "Flip-Over Event" shall mean any event described in
clauses (x), (y) or (z) of Section 13(a) hereof.
(i) "Person" shall mean any individual, firm, corporation,
partnership or other entity whether organized under the laws of the
United States of America or any state or territory thereof or under
the laws of any other country or political subdivision thereof.
(j) "Preferred Stock" shall mean the Junior Participating
Preference Shares, par value $.50 per share, of the Company.
(k) "Qualified Offer" shall have the meaning set forth in
Section 11(a)(ii) hereof.
5
(l) "Stock Acquisition Date" shall mean the first date of
public announcement (which, for purposes of this definition, shall
include, without limitation, a report filed pursuant to Section
13(d) under the Exchange Act) by the Company or an Acquiring Person
that an Acquiring Person has become such other than pursuant to a
Qualified Offer.
(m) "Subsidiary" shall mean, with reference to any Person,
any corporation of which an amount of voting securities sufficient
to elect at least a majority of the directors of such corporation
is beneficially owned, directly or indirectly, by such Person, or
otherwise controlled by such Person.
(n) "Triggering Event" shall mean any Flip-In Event or any
Flip-Over Event.
Section 2. Appointment of Rights Agent. The Company has
appointed the Rights Agent to act as agent for the Company and the
holders of the Rights (who, in accordance with Section 3 hereof,
shall prior to the Distribution Date also be the holders of the
Common Stock) in accordance with the terms and conditions hereof,
and the Rights Agent has accepted such appointment. The Company
may from time to time appoint such Co-Rights Agents as it may deem
necessary or desirable.
Section 3. Issue of Right Certificates.
(a) Until the earlier of (i) the Close of business on the
tenth Business Day after the Stock Acquisition Date, or (ii) the
Close of business on the tenth Business Day after the date that a
tender or exchange offer by any Person (other than an "exempted"
Person) is first published or sent or given within the meaning of
Rule 14d-2(a) of the General Rules and Regulations under the
Exchange Act, if upon consummation thereof, such Person would
become an Acquiring Person, in either instance other than pursuant
to a Qualified Offer (the earlier of (i) and(ii) being herein
referred to as the "Distribution Date"),
(x) the Rights will be evidenced (except as provided below) by
the certificates for the Common Stock registered in the names
of the holders of the Common Stock (which certificates for
Common Stock shall be deemed also to be certificates for
Rights) and not by separate certificates, and
6
(y) the Rights will be transferable only in connection with
the transfer of the underlying shares of Common Stock
(including a transfer to the Company).
As soon as practicable after the Distribution Date, the Rights
Agent will send by first-class, postage prepaid mail, to each
record holder of the Common Stock as of the Close of business on
the Distribution Date, at the address of such holder shown on the
records of the Company, one or more right certificates, in
substantially the form of Exhibit A hereto (the "Right
Certificates"), evidencing one Right for each share of Common Stock
so held, subject to adjustment as provided herein. At the time of
distribution of the Right Certificates, the Company shall make the
necessary and appropriate rounding adjustments (in accordance with
Section 14(a) hereof) so that Right Certificates representing only
whole numbers of Rights are distributed and cash is paid in lieu of
any fractional Rights. As of and after the Distribution Date, the
Rights will be evidenced solely by such Right Certificates.
(b) Rights shall be issued in respect of all shares of Common
Stock which are issued after the Record Date but prior to the
earlier of the Distribution Date or the Expiration Date.
Certificates issued after the Record Date representing such shares
of Common Stock shall also be deemed to be certificates for Rights.
Certificates issued after the Record Date representing shares of
Common Stock shall bear the following legend:
This certificate evidences and entitles the holder hereof
to certain Rights as set forth in the Rights Agreement
between The May Department Stores Company (the "Company")
and the Rights Agent (the "Rights Agreement"), the terms
of which are hereby incorporated herein by reference and
a copy of which is on file at the principal offices of
the Company. Under certain circumstances, as set forth
in the Rights Agreement, such Rights will be evidenced by
separate certificates and will no longer be evidenced by
this certificate. The Company will mail to the holder of
this certificate a copy of the Rights Agreement, as in
effect on the date of mailing, without charge promptly
after receipt of a written request therefor. Under
certain circumstances set forth in the Rights Agreement,
Rights issued to, or held by, any Person who is, was or
becomes an Acquiring Person or any Affiliate or Associate
thereof (as such terms are defined in the Rights
Agreement), whether currently held by or on behalf of
7
such Person or by any subsequent holder, may become null
and void.
With respect to such certificates containing the foregoing legend,
and certificates containing the legends specified in the 1986
Agreement, the 1988 Agreement and the 1994 Agreement and with
respect to previously issued certificates that contain no
comparable legend, until the earlier of (i) the Distribution Date
or (ii) the Expiration Date, the Rights associated with the Common
Stock represented by such certificates shall be evidenced by such
certificates alone and the registered holders of Common Stock shall
also be the registered holders of the associated Rights, and the
transfer of any of such certificates shall also constitute the
transfer of the Rights associated with the Common Stock represented
by such certificates.
Section 4. Form of Right Certificates.
(a) The Right Certificates (and the forms of election to
purchase and of assignment to be printed on the reverse thereof)
shall each be substantially in the form set forth in Exhibit A
hereto and may have such marks of identification or designation and
such legends, summaries or endorsements printed thereon as the
Company may deem appropriate and as are not inconsistent with the
provisions of this Agreement, or as may be required to comply with
any applicable law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on
which the Rights may from time to time be listed, or to conform to
usage. Subject to the provisions of Section 11 and Section 22
hereof, the Right Certificates, whenever distributed, shall be
dated as of the Record Date and on their face shall entitle the
holders thereof to purchase such number of one six-hundredths of a
share of Preferred Stock as shall be set forth therein at the price
set forth therein (such exercise price per one six-hundredth of a
share is referred to herein as the "Purchase Price"), but the
amount and type of securities purchasable upon the exercise of each
Right and the Purchase Price thereof shall be subject to adjustment
as provided herein.
(b) Any Right Certificate issued pursuant to Section 3(a),
Section 11(i) or Section 22 hereof that represents Rights
beneficially owned by: (i) an Acquiring Person or any Associate or
Affiliate of an Acquiring Person, (ii) a transferee of an Acquiring
Person (or of any such Associate or Affiliate) who becomes a
transferee after the Acquiring Person becomes such, or (iii) a
transferee of an Acquiring Person (or of any such Associate or
8
Affiliate) who becomes a transferee prior to or concurrently with
the Acquiring Person becoming such and receives such Rights
pursuant to either (A) a transfer (whether or not for
consideration) from the Acquiring Person to holders of equity
interests in such Acquiring Person or to any Person with whom such
Acquiring Person has any agreement, arrangement or understanding
regarding the transferred Rights or (B) a transfer which the Board
of Directors of the Company has determined is part of a plan,
arrangement or understanding which has as a primary purpose or
effect avoidance of Section 7(e) hereof, and any Right Certificate
issued pursuant to Section 6 or Section 11 hereof upon transfer,
exchange, replacement or adjustment of any other Right Certificate
referred to in this sentence, shall contain (to the extent
feasible) the following legend:
The Rights represented by this Right Certificate are or
were beneficially owned by a Person who was or became an
Acquiring Person or an Affiliate or Associate of an
Acquiring Person (as such terms are defined in the Rights
Agreement). Accordingly, this Rights Certificate and the
Rights represented hereby may become null and void in the
circumstances specified in Section 7(e) of such Rights
Agreement.
Section 5. Countersignature and Registration.
(a) The Right Certificates shall be executed on behalf of the
Company by its Chairman of the Board, its President or any Vice
President, either manually or by facsimile signature, and shall
have affixed thereto the Company's seal or a facsimile thereof
which shall be attested by the Secretary or an Assistant Secretary
of the Company, either manually or by facsimile signature. The
Right Certificates shall be countersigned by the Rights Agent,
either manually or by facsimile signature, and shall not be valid
for any purpose unless so countersigned. In case any officer of
the Company who shall have signed any of the Right Certificates
shall cease to be such officer of the Company before
countersignature by the Rights Agent and issuance and delivery by
the Company, such Right Certificates, nevertheless, may be
countersigned by the Rights Agent, and issued and delivered by the
Company with the same force and effect as though the person who
signed such Right Certificates had not ceased to be such officer of
the Company; and any Right Certificates may be signed on behalf of
the Company by any person who, at the actual date of the execution
of such Right Certificate, shall be a proper officer of the Company
to sign such Right Certificate, although at the date of the
9
execution of this Rights Agreement any such person was not such an
officer.
(b) Following the Distribution Date, the Rights Agent will
keep or cause to be kept, at one of its offices in New York, New
York, books for registration and transfer of the Right Certificates
issued hereunder. Such books shall show the names and addresses of
the respective holders of the Right Certificates, the number of
Rights evidenced on its face by each of the Right Certificates, the
certificate number of each of the Right Certificates and the date
of each of the Right Certificates.
Section 6. Transfer, Split Up, Combination and Exchange of
Right Certificates; Mutilated, Destroyed, Lost or Stolen Right
Certificates. (a) Subject to the provisions of Section 4(b),
Section 7(e) and Section 14 hereof, at any time after the Close of
business on the Distribution Date, and at or prior to the Close of
business on the Expiration Date, any Right Certificate or
Certificates may be transferred, split up, combined or exchanged
for another Right Certificate or Certificates, entitling the
registered holder to purchase a like number of one six-hundredths
of a share of Preferred Stock (or, following a Triggering Event,
Common Stock, other securities, cash or other assets, as the case
may be) as the Right Certificate or Certificates surrendered then
entitle such holder (or former holder in the case of a transfer) to
purchase. Any registered holder desiring to transfer, split up,
combine or exchange any Right Certificate or Certificates shall
make such request in writing delivered to the Rights Agent, and
shall surrender the Right Certificate or Certificates to be
transferred, split up, combined or exchanged at the principal
office or offices of the Rights Agent designated for such purpose.
Neither the Rights Agent nor the Company shall be obligated to take
any action whatsoever with respect to the transfer of any such
surrendered Right Certificate until the registered holder shall
have completed and signed the certificate contained in the form of
assignment on the reverse side of such Right Certificate and shall
have provided such additional evidence of the identity of the
Beneficial Owner (or former Beneficial Owner) or Affiliates or
Associates thereof as the Company shall reasonably request.
Thereupon the Rights Agent shall, subject to Section 4(b), Section
7(e) and Section 14 hereof, countersign and deliver to the Person
entitled thereto a Right Certificate or Certificates, as the case
may be, as so requested. The Company may require payment of a sum
sufficient to cover any tax or governmental charge that may be
imposed in connection with any transfer, split up, combination or
exchange of Right Certificates.
10
(b) Upon receipt by the Company and the Rights Agent of
evidence reasonably satisfactory to them of the loss, theft,
destruction or mutilation of a Right Certificate, and, in case of
loss, theft or destruction, of indemnity or security reasonably
satisfactory to them, and reimbursement to the Company and the
Rights Agent of all reasonable expenses incidental thereto, and
upon surrender to the Rights Agent and cancellation of the Right
Certificate if mutilated, the Company will execute and deliver a
new Right Certificate of like tenor to the Rights Agent for
countersignature and delivery to the registered owner in lieu of
the Right Certificate so lost, stolen, destroyed or mutilated.
Section 7. Exercise of Rights; Purchase Price; Expiration
Date of Rights. (a) Subject to Section 7(e) hereof, the
registered holder of any Right Certificate may exercise the Rights
evidenced thereby (except as otherwise provided herein including,
without limitation, the restrictions on exercisability set forth in
Section 9(c), Section 11(a)(iii), Section 23(a) and Section 24
hereof) 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 and the certificate on the reverse side thereof duly
executed, to the Rights Agent at the principal office or offices of
the Rights Agent designated for such purpose, together with payment
of the aggregate Purchase Price with respect to the total number of
one six-hundredths of a share of Preferred Stock (or other
securities, cash or property, as the case may be) as to which such
surrendered Rights are then exercisable, at or prior to the earlier
of (i) the close of business on August 31, 2014 (the "Final
Expiration Date"), or (ii) the time at which the Rights are
redeemed as provided in Section 23 hereof (the earlier of (i) and
(ii) being herein referred to as the "Expiration Date").
(b) The Purchase Price for each one six-hundredth of a share
of Preferred Stock pursuant to the exercise of a Right shall be
initially $125, and shall be subject to adjustment from time to
time as provided in Section 11 hereof and shall be payable in
accordance with paragraph (c) below.
(c) Upon receipt of a Right Certificate representing
exercisable Rights, with the form of election to purchase and the
certificate duly executed, accompanied by payment, with respect to
each Right so exercised, of the Purchase Price per one six-
hundredth of a share of Preferred Stock (or other shares,
securities or property, as the case may be) to be purchased as set
forth below and an amount equal to any applicable transfer tax, the
11
Rights Agent shall, subject to Section 20(k) hereof, thereupon
promptly:
(i) (A) requisition from any transfer agent of the shares
of Preferred Stock (or make available, if the Rights Agent is
the transfer agent for such shares) certificates for the total
number of one six-hundredths of a share of Preferred Stock to
be purchased and the Company hereby irrevocably authorizes its
transfer agent to comply with all such requests, or (B) if the
Company shall have elected to deposit the total number of
shares of Preferred Stock issuable upon exercise of the Rights
hereunder with a depositary agent, requisition from the
depositary agent depositary receipts representing such number
of one six-hundredths of a share of Preferred Stock as are to
be purchased (in which case certificates for the shares of
Preferred Stock represented by such receipts shall be
deposited by the transfer agent with the depositary agent) and
the Company will direct the depositary agent to comply with
such request,
(ii) requisition from the Company the amount of cash, if
any, to be paid in lieu of fractional shares in accordance
with Section 14 hereof,
(iii) after receipt of such certificates or depositary
receipts, cause the same to be delivered to or upon the order
of the registered holder of such Right Certificate, registered
in such name or names as may be designated by such holder, and
(iv) after receipt thereof, deliver such cash, if any, to
or upon the order of the registered holder of such Right
Certificate.
The payment of the Purchase Price (as such amount may be reduced
pursuant to Section 11(a)(iii) hereof) shall be made in cash or by
certified bank check or money order payable to the order of the
Company. In the event that the Company is obligated to issue other
securities (including Common Stock) of the Company, pay cash and/or
distribute other property pursuant to Section 11(a) hereof, the
Company will make all arrangements necessary so that such other
securities, cash and/or other property are available for
distribution by the Rights Agent, if and when appropriate.
(d) In case the registered holder of any Right Certificate
shall exercise less than all of the Rights evidenced thereby, a new
Right Certificate evidencing Rights equivalent to the Rights
12
remaining unexercised shall be issued by the Rights Agent and
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, subject to the provisions of Section 14
hereof.
(e) Notwithstanding anything in this Agreement to the
contrary, from and after the first occurrence of a Flip-In Event,
any Rights beneficially owned by (i) an Acquiring Person or an
Associate or Affiliate of an Acquiring Person, (ii) a transferee of
an Acquiring Person (or of any such Associate or Affiliate) who
becomes a transferee after the Acquiring Person becomes such, or
(iii) a transferee of an Acquiring Person (or of any such Associate
or Affiliate) who becomes a transferee prior to or concurrently
with the Acquiring Person becoming such and receives such Rights
pursuant to either (A) a transfer (whether or not for
consideration) from the Acquiring Person to holders of equity
interests in such Acquiring Person or to any Person with whom the
Acquiring Person has any continuing agreement, arrangement or
understanding regarding the transferred Rights or (B) a transfer
which the Board of Directors of the Company has determined is part
of a plan, arrangement or understanding which has as a primary
purpose or effect the avoidance of this Section 7(e), shall become
null and void without any further action, and no holder of such
Rights shall have any rights whatsoever with respect to such
Rights, whether under any provision of this Agreement or otherwise.
The Company shall use all reasonable efforts to ensure that the
provisions of this Section 7(e) and Section 4(b) hereof are
complied with, but shall have no liability to any holder of Right
Certificates or other Person as a result of its failure to make any
determinations with respect to an Acquiring Person or any of its
respective Affiliates, Associates or transferees hereunder.
(f) Notwithstanding anything in this Agreement to the
contrary, neither the Rights Agent nor the Company shall be
obligated to undertake any action with respect to a registered
holder upon the occurrence of any purported exercise as set forth
in this Section 7 unless such registered holder shall have (i)
completed and duly executed the certificate and the form of
election to purchase set forth on the reverse side of the Right
Certificate surrendered for such exercise, and (ii) provided such
additional evidence of the identity of the Beneficial Owner (or
former Beneficial Owner) or Affiliates or Associates thereof as the
Company shall reasonably request.
13
Section 8. Cancellation and Destruction of Right
Certificates. All Right Certificates surrendered for the purpose
of exercise, transfer, split up, combination or exchange shall, if
surrendered to the Company or any of its agents, be delivered to
the Rights Agent for cancellation or in cancelled form, or, if
surrendered to the Rights Agent, shall be cancelled by it, and no
Right Certificates shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Agreement.
The Company shall deliver to the Rights Agent for cancellation and
retirement, and the Rights Agent shall so cancel and retire, any
other Right Certificate purchased or acquired by the Company
otherwise than upon the exercise thereof. The Rights Agent shall
deliver all cancelled Right Certificates to the Company or may, but
shall not be required to, destroy such cancelled Right
Certificates, and in such case shall deliver a certificate of
destruction thereof to the Company.
Section 9. Reservation and Availability of Capital Stock.
(a) The Company covenants and agrees that it will cause to be
reserved and kept available out of its authorized and unissued
shares of Preferred Stock (and, following the occurrence of a
Triggering Event, out of its authorized and unissued shares of
Common Stock and/or other securities or out of its authorized and
issued shares held in its treasury), the number of shares of
Preferred Stock (and, following the occurrence of a Triggering
Event, Common Stock and/or other securities) that, as provided in
this Agreement including Section 11(a)(iii) hereof, will be
sufficient to permit the exercise in full of all outstanding
Rights.
(b) So long as the shares of Preferred Stock (and, following
the occurrence of a Triggering Event, Common Stock and/or other
securities) issuable and deliverable upon the exercise of the
Rights may be listed on any national securities exchange, the
Company shall use its best efforts to cause, from and after such
time as the Rights become exercisable, all shares reserved for such
issuance to be listed on such exchange upon official notice of
issuance upon such exercise.
(c) The Company shall use its best efforts to
(i) file, as soon as practicable following the earliest
date after the first occurrence of a Flip-In Event on which
the consideration to be delivered by the Company upon exercise
of the Rights has been determined in accordance with Section
14
11(a)(iii) hereof, or as soon as is required by law following
the Distribution Date, as the case may be, a registration
statement under the Securities Act of 1933 (the "Securities
Act"), with respect to the securities purchasable upon
exercise of the Rights on an appropriate form,
(ii) cause such registration statement to become
effective as soon as practicable after such filing, and
(iii) cause such registration statement to remain
effective (with a prospectus at all times meeting the
requirements of the Securities Act) until the earlier of (A)
the date as of which the Rights are no longer exercisable for
such securities, and (B) the date of the expiration of the
Rights.
The Company will also take such action as may be appropriate under,
or to ensure compliance with, the securities or "blue sky" laws of
the various states in connection with the exercisability of the
Rights. The Company may temporarily suspend, for a period of time
not to exceed ninety (90) calendar days after the date set forth in
clause (i) of the first sentence of this Section 9(c), the
exercisability of the Rights in order to prepare and file such
registration statement and permit it to become effective. Upon any
such suspension, the Company shall issue a public announcement
stating that the exercisability of the Rights has been temporarily
suspended, as well as a public announcement at such time as the
suspension is no longer in effect. Notwithstanding any provision
of this Agreement to the contrary, the Rights shall not be
exercisable in any jurisdiction unless the requisite qualification
in such jurisdiction shall have been obtained.
(d) The Company covenants and agrees that it will take all
such action as may be necessary to ensure that all one six-
hundredths of a share of Preferred Stock (and, following the
occurrence of a Triggering Event, Common Stock and/or other
securities) delivered upon exercise of Rights shall, at the time of
delivery of the certificates for such shares (subject to payment of
the Purchase Price), be duly and validly authorized and issued and
fully paid and nonassessable.
(e) The Company further covenants and agrees that it will pay
when due and payable any and all federal and state transfer taxes
and charges which may be payable in respect of the issuance or
delivery of the Right Certificates and of any certificates for
shares of Preferred Stock (or Common Stock and/or other securities,
15
as the case may be) upon the exercise of Rights. The Company shall
not, however, be required to pay any transfer tax which may be
payable in respect of any transfer or delivery of Right
Certificates to a Person other than, or the issuance or delivery of
a number of one six-hundredths of a share of Preferred Stock (or
Common Stock and/or other securities, as the case may be) in
respect of a name other than that of, the registered holder of the
Right Certificates evidencing Rights surrendered for exercise or to
issue or deliver any certificates for a number of one six-
hundredths of a share of Preferred Stock (or Common Stock and/or
other securities, as the case may be) in a name other than that of
the registered holder upon the exercise of any Rights until such
tax shall have been paid (any such tax being payable by the holder
of such Right Certificate at the time of surrender) or until it has
been established to the Company's satisfaction that no such tax is
due.
Section 10. Preferred Stock Record Date. Each person in
whose name any certificate for a number of one six-hundredths of a
share of Preferred Stock (or Common Stock and/or other securities,
as the case may be) is issued upon the exercise of Rights shall for
all purposes be deemed to have become the holder of record of the
whole or fractional shares of Preferred Stock (or Common Stock
and/or other securities, as the case may be) represented thereby
on, and such certificate shall be dated, the date upon which the
Right Certificate evidencing such Rights was duly surrendered and
payment of the Purchase Price (and all applicable transfer taxes)
was made; provided, however, that if the date of such surrender and
payment is a date upon which the Preferred Stock (or Common Stock
and/or other securities, as the case may be) transfer books of the
Company are closed, such Person shall be deemed to have become the
record holder of such whole or fractional shares on, and such
certificate shall be dated, the next succeeding Business Day on
which the Preferred Stock (or Common Stock and/or other securities,
as the case may be) transfer books of the Company are open. Prior
to the exercise of the Rights evidenced thereby, the holder of a
Right Certificate, as such, shall not be entitled to any rights of
a shareowner of the Company with respect to shares for which the
Rights shall be exercisable, including, without limitation, the
right to vote, to receive dividends or other distributions or to
exercise any preemptive rights, and shall not be entitled to
receive any notice of any proceedings of the Company, except as
provided herein.
Section 11. Adjustment of Purchase Price, Number and Kind of
Shares or Number of Rights. The Purchase Price, the number and
16
kind of 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 Company shall at any time after
the date of this Agreement (A) declare a dividend on the
Preferred Stock payable in shares of Preferred Stock, (B)
subdivide the outstanding Preferred Stock, (C) combine the
outstanding Preferred Stock into a smaller number of shares,
or (D) issue any shares of its capital stock in a
reclassification of the Preferred Stock (including any such
reclassification in connection with a consolidation or merger
in which the Company is the continuing or surviving
corporation), except as otherwise provided in this Section
11(a) and Section 7(e) hereof, the Purchase Price in effect at
the time of the record date for such dividend or of the
effective date of such subdivision, combination or
reclassification, and the number and kind of shares of
Preferred Stock or capital stock, as the case may be, issuable
on such date, shall be proportionately adjusted so that the
holder of any Right exercised after such time shall be
entitled to receive, upon payment of the Purchase Price then
in effect, the aggregate number and kind of shares of
Preferred Stock or capital stock, as the case may be, which,
if such Right had been exercised immediately prior to such
date and at a time when the Preferred Stock transfer books of
the Company were open, the holder of such Right would have
owned upon such exercise and been entitled to receive by
virtue of such dividend, subdivision, combination or
reclassification. If an event occurs which would require an
adjustment under both this Section 11(a)(i) and Section
11(a)(ii) hereof, the adjustment provided for in this Section
11(a)(i) shall be in addition to, and shall be made prior to,
any adjustment required pursuant to, Section 11(a)(ii) hereof.
(ii) In the event:
(A) any Person shall, at any time after the Rights
Dividend Declaration Date, become an Acquiring Person,
unless the event causing such Person to become an
Acquiring Person is a Flip-Over Event, or is an
acquisition of shares of Common Stock pursuant to a
tender offer or an exchange offer for all outstanding
shares of Common Stock at a price and on terms determined
by the Board of Directors of the Company, after receiving
advice from one or more investment banking firms, to be
17
(a) at a price which is fair to the Company's shareowners
(taking into account all factors which the Board of
Directors deems relevant including, without limitation,
prices which could reasonably be achieved if the Company
or its assets were sold on an orderly basis designed to
realize maximum value) and (b) otherwise in the best
interests of the Company and its shareowners (a
"Qualified Offer"), or
(B) during such time as there is an Acquiring Person,
there shall be any reclassification of securities
(including any reverse stock split), or recapitalization
of the Company, or any merger or consolidation of the
Company with any of its Subsidiaries or any other
transaction or series of transactions involving the
Company or any of its Subsidiaries, other than a
transaction or transactions to which the provisions of
Section 13(a) apply (whether or not with or into or
otherwise involving an Acquiring Person) which has the
effect, directly or indirectly, of increasing by more
than 1% the proportionate share of the outstanding shares
of any class of equity securities of the Company or any
of its Subsidiaries which is directly or indirectly
beneficially owned by any Acquiring Person or any
Associate or Affiliate of any Acquiring Person,
then, promptly following the occurrence of any such Flip-In
Event, proper provision shall be made so that each holder of a
Right (except as provided below and in Section 7(e) hereof)
shall thereafter have the right to receive, upon exercise
thereof at the then current Purchase Price in accordance with
the terms of this Agreement, in lieu of a number of one six-
hundredths of a share of Preferred Stock, such number of
shares of Common Stock of the Company as shall equal the
result obtained by (x) multiplying the then current Purchase
Price by the then number of one six-hundredths of a share of
Preferred Stock for which a Right was exercisable immediately
prior to the first occurrence of a Flip-In Event, and (y)
dividing that product (which, following such first occurrence,
shall thereafter be referred to as the "Purchase Price" for
each Right for all purposes of this Agreement) by 50% of the
current market price (determined pursuant to Section 11(d)
hereof) per share of Common Stock on the date of such first
occurrence (such number of shares being referred to herein as
the "Adjustment Shares").
18
(iii) In the event that the number of shares of Common
Stock which are authorized by the Certificate of Incorporation
but not outstanding or reserved for issuance for purposes
other than upon exercise of the Rights is not sufficient to
permit the exercise in full of the Rights in accordance with
the foregoing subparagraph (ii) of this Section 11(a), the
Company shall:
(A) determine the excess of (1) the value of the
Adjustment Shares issuable upon the exercise of a Right
(the "Current Value") over (2) the Purchase Price (such
excess being referred to herein as the "Spread"), and
(B) with respect to each Right, make adequate provision
to substitute for the Adjustment Shares, upon payment of
the applicable Purchase Price, (1) cash, (2) a reduction
in the Purchase Price, (3) Common Stock or other equity
securities of the Company (including, without limitation,
shares, or units of shares, of preferred stock which the
Board of Directors of the Company has deemed to have the
same value as shares of Common Stock (such shares of
preferred stock being referred to herein as "common stock
equivalents")), (4) debt securities of the Company, (5)
other assets, or (6) any combination of the foregoing
having an aggregate value equal to the Current Value,
where such aggregate value has been determined by the
Board of Directors of the Company based upon the advice
of a nationally recognized investment banking firm
selected by the Board of Directors of the Company;
provided, however, that if the Company shall not have
made adequate provision to deliver value pursuant to
clause (B) above within thirty (30) calendar days
following the later of (x) the first occurrence of a
Flip-In Event and (y) the date on which the Company's
right of redemption pursuant to Section 23(a) expires
(the later of (x) and (y) being referred to herein as the
"Flip-In Trigger Date"), then the Company shall be
obligated to deliver, upon the surrender for exercise of
a Right and without requiring payment of the Purchase
Price, shares of Common Stock (to the extent available)
and then, if necessary, cash, which in the aggregate are
equal to the Spread. If the Board of Directors of the
Company shall determine in good faith that it is likely
that sufficient additional shares of Common Stock could
be authorized for issuance upon exercise in full of the
Rights, the thirty (30) calendar day period set forth
19
above may be extended to the extent necessary, but not
more than ninety (90) calendar days following the Flip-In
Trigger Date, in order that the Company may seek
shareowner approval for the authorization of such
additional shares (such period, as it may be extended
being referred to herein as the "Substitution Period").
To the extent that the Company determines that some action
need be taken pursuant to the first and/or second sentences of
this Section 11(a)(iii), the Company (x) shall provide,
subject to Section 7(e) hereof, that such action shall apply
uniformly to all outstanding Rights, and (y) may suspend the
exercisability of the Rights until the expiration of the
Substitution Period in order to seek any authorization of
additional shares and/or to decide the appropriate form of
distribution to be made pursuant to such first sentence and to
determine the value thereof. In the event of any such
suspension, the Company shall issue a public announcement
stating that the exercisability of the Rights has been
temporarily suspended, as well as a public announcement at
such time as the suspension is no longer in effect. For
purposes of this Section 11(a)(iii), the value of the Common
Stock shall be the current market price (as determined
pursuant to Section 11(d) hereof) per share of the Common
Stock on the Flip-In Trigger Date and the value of any "common
stock equivalent" shall be deemed to have the same value as
the Common Stock on such date.
(iv) If the rules of the national securities exchange,
registered as such pursuant to Section 6 of the Exchange Act,
or of the national securities association, registered as such
pursuant to Section 15A of the Exchange Act, on which the
Common Stock is principally traded would prohibit such
exchange or association from listing or continuing to list, or
from authorizing for or continuing quotation and/or
transaction reporting through an inter-dealer quotation
system, the Common Stock or other equity securities of the
Company if the Rights were to be exercised for shares of
Common Stock in accordance with subparagraph (ii) of this
Section 11(a) because such issuance would nullify, restrict or
disparately reduce the per share voting rights of holders of
Common Stock, the Company shall:
(A) determine the Spread, and
20
(B) with respect to each Right, make adequate provision
to substitute for the Adjustment Shares, upon payment of
the applicable Purchase Price, (1) cash, (2) equity
securities of the Company, including, without limitation,
"common stock equivalents," other than securities which
would have the effect of nullifying, restricting or
disparately reducing the per share voting rights of
holders of Common Stock, (3) debt securities of the
Company, (4) other assets, or (5) any combination of the
foregoing, having an aggregate value equal to the Current
Value, where such aggregate value has been determined by
the Board of Directors of the Company based upon the
advice of a nationally recognized investment banking firm
selected by the Board of Directors; provided, however, if
the Company shall not have made adequate provision to
deliver value pursuant to clause (B) above within thirty
(30) calendar days following the Flip-In Trigger Date,
then the Company shall be obligated to deliver, upon the
surrender for exercise of a Right and without requiring
payment of the Purchase Price, cash having an aggregate
value equal to the Spread.
To the extent that the Company determines that some action
need be taken pursuant to the first sentence of this Section
11(a)(iv), the Company (x) shall provide, subject to Section
7(e) hereof, that such action shall apply uniformly to all
outstanding Rights and (y) may suspend the exercisability of
the Rights, but not longer than ninety (90) calendar days
after the Flip-In Trigger Date, in order to decide the
appropriate form of distribution to be made pursuant to such
first sentence and to determine the value thereof. In the
event of any such suspension, the Company shall issue a public
announcement stating that the exercisability of the Rights has
been temporarily suspended, as well as a public announcement
at such time as the suspension is no longer in effect. For
purposes of this Section 11(a)(iv), the value of the Common
Stock shall be the current market price (as determined
pursuant to Section 11(d) hereof) per share of the Common
Stock on the Flip-In Trigger Date and the value of any "common
stock equivalent" shall be deemed to have the same value as
the Common Stock on such date.
(b) In case the Company shall fix a record date for the
issuance of rights, options or warrants to all holders of Preferred
Stock entitling them to subscribe for or purchase (for a period
expiring within forty-five (45) calendar days after such record
21
date) Preferred Stock (or shares having the same rights, privileges
and preferences as the shares of Preferred Stock ("equivalent
preferred stock")) or securities convertible into Preferred Stock
or equivalent preferred stock at a price per share of Preferred
Stock or per share of equivalent preferred stock (or having a
conversion price per share, if a security convertible into
Preferred Stock or equivalent preferred stock) less than the
current market price (as determined pursuant to Section 11(d)
hereof) per share of Preferred Stock on such record date, the
Purchase Price to be in effect after such record date shall be
determined by multiplying the Purchase Price in effect immediately
prior to such record date by a fraction, the numerator of which
shall be the number of shares of Preferred Stock outstanding on
such record date, plus the number of shares of Preferred Stock
which the aggregate offering price of the total number of shares of
Preferred Stock and/or equivalent preferred stock so to be offered
(and/or the aggregate initial conversion price of the convertible
securities so to be offered) would purchase at such current market
price, and the denominator of which shall be the number of shares
of Preferred Stock outstanding on such record date, plus the number
of additional shares of Preferred Stock and/or equivalent preferred
stock to be offered for subscription or purchase (or into which the
convertible securities so to be offered are initially convertible).
In case such subscription price may be paid by delivery of
consideration part or all of which may be in a form other than
cash, the value of such consideration shall be as determined in
good faith by the Board of Directors of the Company, whose
determination shall be described in a statement filed with the
Rights Agent and shall be conclusive for all purposes and binding
on the Rights Agent and the holders of the Rights. Shares of
Preferred Stock owned by or held for the account of the Company
shall not be deemed outstanding for the purpose of any such
computation. Such adjustment shall be made successively whenever
such a record date is fixed, and in the event that such rights or
warrants are not so issued, the Purchase Price shall be adjusted to
be the Purchase Price which would then be in effect if such record
date had not been fixed.
(c) In case the Company shall fix a record date for a
distribution to all holders of Preferred Stock (including any such
distribution made in connection with a consolidation or merger in
which the Company is the continuing corporation) of evidences of
indebtedness, cash (other than a regular quarterly cash dividend
out of the earnings or retained earnings of the Company), assets
(other than a dividend payable in Preferred Stock, but including
any dividend payable in stock other than Preferred Stock) or
22
subscription rights or warrants (excluding those referred to in
Section 11(b) hereof), the Purchase Price to be in effect after
such record date shall be determined by multiplying the Purchase
Price in effect immediately prior to such record date by a
fraction, the numerator of which shall be the current market price
(as determined pursuant to Section 11(d) hereof) per share of
Preferred Stock on such record date, less the fair market value (as
determined in good faith by the Board of Directors of the Company,
whose determination shall be described in a statement filed with
the Rights Agent) of the portion of the cash, assets or evidences
of indebtedness so to be distributed or of such subscription rights
or warrants applicable to a share of Preferred Stock and the
denominator of which shall be such current market price (as
determined pursuant to Section 11(d) hereof) per share of Preferred
Stock. Such adjustments shall be made successively whenever such a
record date is fixed, and in the event that such distribution is
not so made, the Purchase Price shall be adjusted to be the
Purchase Price which would have been in effect if such record date
had not been fixed.
(d) (i) For the purpose of any computation hereunder, other
than computations made pursuant to Section 11(a)(iii) or
(iv) hereof, the "current market price" per share of
Common Stock on any date shall be deemed to be the
average of the daily closing prices per share of such
Common Stock for the thirty (30) consecutive Trading Days
(as such term is hereinafter defined) immediately prior
to such date, and for purposes of computations made
pursuant to Section 11(a)(iii) or (iv) hereof, the
"current market price" per share of Common Stock on any
date shall be deemed to be the average of the daily
closing prices per share of such Common Stock for the ten
(10) consecutive Trading Days immediately following such
date; provided, however, that in the event that the
current market price per share of the Common Stock is
determined during a period following the announcement by
the issuer of such Common Stock of (A) a dividend or
distribution on such Common Stock payable in shares of
such Common Stock or securities convertible into shares
of such Common Stock (other than the Rights), or (B) any
subdivision, combination or reclassification of such
Common Stock, and prior to the expiration of the
requisite thirty (30) Trading Day or ten (10) Trading Day
period, as set forth above, after the ex-dividend date
for such dividend or distribution, or the record date for
such subdivision, combination or reclassification, then,
23
and in each such case, the "current market price" shall
be properly adjusted to take into account ex-dividend
trading. The closing price for each day shall be the
last sale price, regular way, or, in case no such sale
takes place on such day, the average of the closing bid
and asked prices, regular way, in either case as reported
in the principal consolidated transaction reporting
system with respect to securities listed or admitted to
trading on the New York Stock Exchange or, if the shares
of Common Stock are not listed or admitted to trading on
the New York Stock Exchange, as reported in the principal
consolidated transaction reporting system with respect to
securities listed on the principal national securities
exchange on which the shares of Common Stock are listed
or admitted to trading or, if the shares of Common Stock
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 the
National Association of Securities Dealers, Inc.
Automated Quotation System ("NASDAQ") or such other
system then in use, or, if on any such date the shares of
Common Stock are not quoted by any such organization, the
average of the closing bid and asked prices as furnished
by a professional market maker making a market in the
Common Stock selected by the Board of Directors of the
Company. If on any such date no market maker is making a
market in the Common Stock, the fair value of such shares
on such date as determined in good faith by the Board of
Directors of the Company shall be used. The term
"Trading Day" shall mean a day on which the principal
national securities exchange on which the shares of
Common Stock are listed or admitted to trading is open
for the transaction of business or, if the shares of
Common Stock are not listed or admitted to trading on any
national securities exchange, a Business Day. If the
Common Stock is not publicly held or not so listed or
traded, "current market price" per share shall mean the
fair value per share as determined in good faith by the
Board of Directors of the Company, whose determination
shall be described in a statement filed with the Rights
Agent and shall be conclusive for all purposes.
(ii) For the purpose of any computation hereunder,
the "current market price" per share of Preferred Stock
shall be determined in the same manner as set forth above
24
for the Common Stock in clause (i) of this Section 11(d)
(other than the last sentence thereof). If the current
market price per share of Preferred Stock cannot be
determined in the manner provided above or if the
Preferred Stock is not publicly held or listed or traded
in a manner described in clause (i) of this Section
11(d), the "current market price" per share of Preferred
Stock shall be conclusively deemed to be an amount equal
to 600 (as such number may be appropriately adjusted for
such events as stock splits, stock dividends and
recapitalizations with respect to the Common Stock
occurring after the date of this Agreement) multiplied by
the current market price per share of the Common Stock.
If neither the Common Stock nor the Preferred Stock is
publicly held or so listed or traded, "current market
price" per share of the Preferred Stock shall mean the
fair value per share as determined in good faith by the
Board of Directors of the Company, whose determination
shall be described in a statement filed with the Rights
Agent and shall be conclusive for all purposes. For all
purposes of this Agreement, the "current market price" of
one six-hundredth of a share of Preferred Stock shall be
equal to the "current market price" of one share of
Preferred Stock divided by 600.
(e) Anything herein to the contrary notwithstanding, no
adjustment in the Purchase Price shall be required unless such
adjustment would require an increase or decrease of at least one
percent (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 ten-thousandth
of a share of Common Stock or other share or one-millionth of a
share of Preferred Stock, as the case may be. Notwithstanding the
first sentence of this Section 11(e), any adjustment required by
this Section 11 shall be made no later than the earlier of (i)
three (3) years from the date of the transaction which mandates
such adjustment, or (ii) the Expiration Date.
(f) If as a result of an adjustment made pursuant to Section
11(a)(ii) or Section 13(a) hereof, the holder of any Right
thereafter exercised shall become entitled to receive any shares of
capital stock other than Preferred Stock, thereafter the number of
such other shares so receivable upon exercise of any Right and the
Purchase Price thereof shall be subject to adjustment from time to
25
time in a manner and on terms as nearly equivalent as practicable
to the provisions with respect to the Preferred Stock contained in
Sections 11(a), (b), (c), (e), (g), (h), (i), (j), (k) and (m), and
the provisions of Sections 7, 9, 10, 13 and 14 hereof with respect
to the Preferred Stock shall apply on like terms to any such other
shares.
(g) All Rights originally issued by the Company subsequent to
any adjustment made to the Purchase Price hereunder shall evidence
the right to purchase, at the adjusted Purchase Price, the number
of one six-hundredths of a share of Preferred Stock purchasable
from time to time hereunder upon exercise of the Rights, all
subject to further adjustment as provided herein.
(h) Unless the Company shall have exercised its election as
provided in Section 11(i), upon each adjustment of the Purchase
Price as a result of the calculations made in Sections 11(b) and
(c), each Right outstanding immediately prior to the making of such
adjustment shall thereafter evidence the right to purchase, at the
adjusted Purchase Price, that number of one six-hundredths of a
share of Preferred Stock (calculated to the nearest one-millionth)
obtained by (i) multiplying (x) the number of one six-hundredths of
a share covered by a Right immediately prior to this adjustment, by
(y) the Purchase Price in effect immediately prior to such
adjustment of the Purchase Price, and (ii) dividing the product so
obtained by the Purchase Price in effect immediately after such
adjustment of the Purchase Price.
(i) The Company may elect on or after the date of any
adjustment of the Purchase Price to adjust the number of Rights, in
lieu of any adjustment in the number of one six-hundredths of a
share of Preferred Stock purchasable upon the exercise of a Right.
Each of the Rights outstanding after the adjustment in the number
of Rights shall be exercisable for the number of one six-hundredths
of a share of Preferred Stock for which a Right was exercisable
immediately prior to such adjustment. Each Right held of record
prior to such adjustment of the number of Rights shall become that
number of Rights (calculated to the nearest one-ten-thousandth)
obtained by dividing the Purchase Price in effect immediately prior
to adjustment of the Purchase Price by the Purchase Price in effect
immediately after adjustment of the Purchase Price. The Company
shall make a public announcement of its election to adjust the
number of Rights, indicating the record date for the adjustment,
and, if known at the time, the amount of the adjustment to be made.
This record date may be the date on which the Purchase Price is
adjusted or any day thereafter, but, if the Right Certificates have
been issued, shall be at least ten (10) calendar days later than
the date of the public announcement. If Right Certificates have
26
been issued, upon each adjustment of the number of Rights pursuant
to this Section 11(i), the Company shall, as promptly as
practicable, cause to be distributed to holders of record of Right
Certificates on such record date Right Certificates evidencing,
subject to Section 14 hereof, the additional Rights to which such
holders shall be entitled as a result of such adjustment, or, at
the option of the Company, shall cause to be distributed to such
holders of record in substitution and replacement for the Right
Certificates held by such holders prior to the date of adjustment,
and upon surrender thereof, if required by the Company, new Right
Certificates evidencing all the Rights to which such holders shall
be entitled after such adjustment. Right Certificates so to be
distributed shall be issued, executed and countersigned in the
manner provided for herein (and may bear, at the option of the
Company, the adjusted Purchase Price) and shall be registered in
the names of the holders of record of Right Certificates on the
record date specified in the public announcement.
(j) Irrespective of any adjustment or change in the Purchase
Price or the number of one six-hundredths of a share of Preferred
Stock issuable upon the exercise of the Rights, the Right
Certificates theretofore and thereafter issued may continue to
express the Purchase Price per one six-hundredth of a share and the
number of one six-hundredths of a share which were expressed in the
initial Right Certificates issued hereunder.
(k) Before taking any action that would cause an adjustment
reducing the Purchase Price below the then stated value, if any, of
the number of one six-hundredths of a share of Preferred Stock
issuable upon exercise of the Rights, the Company shall take any
corporate action which may, in the opinion of its counsel, be
necessary in order that the Company may validly and legally issue,
fully paid and nonassessable, such number of one six-hundredths of
a share of Preferred Stock at such adjusted Purchase Price.
(l) In any case in which this Section 11 shall require that
an adjustment in the Purchase Price be made effective as of a
record date for a specified event, the Company may elect to defer
until the occurrence of such event the issuance to the holder of
any Right exercised after such record date the number of one six-
hundredths of a share of Preferred Stock and other capital stock or
securities of the Company, if any, issuable upon such exercise over
and above the number of one six-hundredths of a share of Preferred
Stock and other capital stock or securities of the Company, if any,
27
issuable upon such exercise on the basis of the Purchase Price in
effect prior to such adjustment; provided, however, that the
Company shall deliver to such holder a due xxxx or other
appropriate instrument evidencing such holder's right to receive
such additional shares (fractional or otherwise) or securities upon
the occurrence of the event requiring such adjustment.
(m) Anything in this Section 11 to the contrary
notwithstanding, the Company shall be entitled to make such
reductions in the Purchase Price, in addition to those adjustments
expressly required by this Section 11, as and to the extent that in
its good faith judgment the Board of Directors of the Company shall
determine to be advisable in order that any (i) consolidation or
subdivision of the Preferred Stock, (ii) issuance wholly for cash
of any shares of Preferred Stock at less than the current market
price, (iii) issuance wholly for cash of shares of Preferred Stock
or securities which by their terms are convertible into or
exchangeable for shares of Preferred Stock, (iv) stock dividends or
(v) issuance of rights, options or warrants referred to in this
Section 11, hereafter made by the Company to holders of its
Preferred Stock shall not be taxable to such shareowners.
(n) The Company covenants and agrees that it shall not, at
any time after the Distribution Date, (i) consolidate with any
other Person (other than a Subsidiary of the Company in a
transaction which complies with Section 11(o) hereof), (ii) merge
with or into any other Person (other than a Subsidiary of the
Company in a transaction which complies with Section 11(o) hereof),
or (iii) sell or transfer (or permit any Subsidiary to sell or
transfer), in one transaction or a series of transactions, assets,
cash flow or earning power aggregating more than 50% of the assets,
cash flow or earning power of the Company and its Subsidiaries
(taken as a whole) to, any other Person or Persons (other than the
Company and/or any of its Subsidiaries in one or more transactions
each of which complies with Section 11(o) hereof), if (x) at the
time of or immediately after such consolidation, merger or sale
there are any rights, warrants or other instruments or securities
outstanding or agreements in effect which would substantially
diminish or otherwise eliminate the benefits intended to be
afforded by the Rights or (y) prior to, simultaneously with or
immediately after such consolidation, merger or sale, the
shareowners of the Person who constitutes the "Principal Party" for
purposes of Section 13(a) hereof shall have received a distribution
of Rights previously owned by such Person or any of its Affiliates
and Associates.
28
(o) The Company covenants and agrees that, after the
Distribution Date, it will not, except as permitted by Section 23
or Section 27 hereof, take (or permit any Subsidiary to take) any
action if at the time such action is taken it is reasonably
foreseeable that such action will diminish substantially or
otherwise eliminate the benefits intended to be afforded by the
Rights.
(p) Anything in this Agreement to the contrary
notwithstanding, in the event that the Company shall at any time
after the Rights Dividend Declaration Date and prior to the
Distribution Date
(i) declare a dividend on the outstanding shares of
Common Stock payable in shares of Common Stock,
(ii) subdivide the outstanding Common Stock, or
(iii) combine the outstanding Common Stock into a smaller
number of shares,
the number of Rights associated with each share of Common Stock
then outstanding, or issued or delivered thereafter but prior to
the Distribution Date, shall be proportionately adjusted so that
the number of Rights thereafter associated with each share of
Common Stock following any such event shall equal the result
obtained by multiplying the number of Rights associated with each
share of Common Stock immediately prior to such event by a fraction
the numerator of which shall be the total number of shares of
Common Stock outstanding immediately prior to the occurrence of the
event and the denominator of which shall be the total number of
shares of Common Stock outstanding immediately following the
occurrence of such event.
Section 12. Certificate of Adjusted Purchase Price or Number
of Shares. Whenever an adjustment is made as provided in Section
11 or Section 13 hereof, the Company shall (a) promptly prepare a
certificate setting forth such adjustment and a brief statement of
the facts accounting for such adjustment, (b) promptly file with
the Rights Agent, and with each transfer agent for the Preferred
Stock and the Common Stock, a copy of such certificate, and (c)
mail a brief summary thereof to each holder of a Right Certificate
(or, if prior to the Distribution Date, to each holder of a
certificate representing shares of Common Stock) in accordance with
Section 25 hereof. The Rights Agent shall be fully protected in
29
relying on any such certificate and on any adjustment therein
contained.
Section 13. Consolidation, Merger or Sale or Transfer of
Assets, Cash Flow or Earning Power.
(a) In the event that, following the Stock Acquisition Date,
directly or indirectly,
(x) the Company shall consolidate with, or merge with and
into, any other Person (other than a Subsidiary of the Company
in a transaction which complies with Section 11(o) hereof),
and the Company shall not be the continuing or surviving
corporation of such consolidation or merger,
(y) any Person (other than a Subsidiary of the Company in a
transaction which complies with Section 11(o) hereof) shall
consolidate with, or merge with or into, the Company, and the
Company shall be the continuing or surviving corporation of
such consolidation or merger and, in connection with such
consolidation or merger, all or part of the outstanding shares
of Common Stock shall be changed into or exchanged for stock
or other securities of any other Person or cash or any other
property, or
(z) the Company (or one or more of its Subsidiaries) shall
sell, mortgage (except in bona fide financing transactions in
the ordinary course of business) or otherwise transfer in one
transaction or a series of transactions, assets, cash flow or
earning power aggregating more than 50% of the assets, cash
flow or earning power of the Company and its Subsidiaries
(taken as a whole) to any Person or Persons (other than the
Company or any Subsidiary of the Company in one or more
transactions each of which complies with Section 11(o)
hereof),
then, and in each such case (except as may be contemplated by
Section 13(d) hereof), proper provision shall be made so that:
(i) each holder of a Right, except as provided in Section
7(e) hereof, shall thereafter have the right to receive, upon
the exercise thereof at the then current Purchase Price in
accordance with the terms of this Agreement, such number of
validly authorized and issued, fully paid, non-assessable and
freely tradeable shares of Common Stock of the Principal Party
(as such term is hereinafter defined), not subject to any
30
liens, encumbrances, rights of first refusal or other adverse
claims, as shall be equal to the result obtained by (1)
multiplying the then current Purchase Price by the number of
one six-hundredths of a share of Preferred Stock for which a
Right is exercisable immediately prior to the first occurrence
of any such Flip-Over Event (or, if a Flip-In Event has
occurred prior to the first occurrence of a Flip-Over Event,
multiplying the number of such one six-hundredths of a share
for which a Right was exercisable immediately prior to the
first occurrence of a Flip-In Event by the Purchase Price in
effect immediately prior to such first occurrence), and (2)
dividing that product (which, following the first occurrence
of a Flip-Over Event, shall be referred to as the "Purchase
Price" for each Right for all purposes of this Agreement) by
50% of the current market price (determined pursuant to
Section 11(d)(i) hereof) per share of the Common Stock of such
Principal Party on the date of consummation of such Flip-Over
Event;
(ii) such Principal Party shall thereafter be liable for,
and shall assume, by virtue of such Flip-Over Event, all the
obligations and duties of the Company pursuant to this
Agreement;
(iii) the term "Company" shall thereafter be deemed to
refer to such Principal Party, it being specifically intended
that the provisions of Section 11 hereof shall apply only to
such Principal Party following the first occurrence of a Flip-
Over Event;
(iv) such Principal Party shall take such steps
(including, but not limited to, the reservation of a
sufficient number of shares of its Common Stock) in connection
with the consummation of any such transaction as may be
necessary to assure that the provisions hereof shall
thereafter be applicable, as nearly as reasonably may be, in
relation to its shares of Common Stock thereafter deliverable
upon the exercise of the Rights; and
(v) the provisions of Section 11(a)(ii) hereof shall be
of no effect following the first occurrence of any Flip-Over
Event.
(b) "Principal Party" shall mean
31
(i) in the case of any transaction described in clause
(x) or (y) of the first sentence of Section 13(a), the Person
that is the issuer of any securities into which shares of
Common Stock of the Company are converted in such merger or
consolidation, or, if there is more than one such issuer, the
issuer of the shares of Common Stock which have the greatest
aggregate market value of shares outstanding and if no
securities are so issued, (x) the Person that is the other
party to such merger or consolidation if the Person survives
the merger, or if there is more than one such Person, the
Person the shares of Common Stock of which have the greatest
aggregate market value of shares outstanding, or (y) if the
Person that is the other party to the merger does not survive
the merger, the Person that does survive the merger, or (z)
the Person resulting from the consolidation; and
(ii) in the case of any transaction described in clause
(z) of the first sentence of Section 13(a), the Person that is
the party receiving the greatest portion of the assets, cash
flow or earning power transferred pursuant to such transaction
or transactions, or, if each Person that is a party to such
transaction or transactions receives that same portion of the
assets, cash flow or earning power so transferred or if the
Person receiving the greatest portion of the assets or earning
power cannot be determined, whichever of such Persons as is
the issuer of Common Stock having the greatest aggregate
market value of shares outstanding;
provided, however, that in any such case, (1) if the Common Stock
of such Person is not at such time and has not been continuously
over the preceding twelve (12) month period registered under
Section 12 of the Exchange Act, and such Person is a direct or
indirect Subsidiary of another Person the Common Stock of which is
and has been so registered, "Principal Party" shall refer to such
other Person; and (2) in case such Person is a Subsidiary, directly
or indirectly, of more than one Person, the Common Stocks of two or
more of which are and have been so registered, "Principal Party"
shall refer to whichever of such Persons is the issuer of the
Common Stock having the greatest aggregate market value.
(c) The Company shall not consummate any Flip-Over Event
unless the Principal Party shall have a sufficient number of
authorized shares of its Common Stock which have not been issued or
reserved for issuance to permit the exercise in full of the Rights
in accordance with this Section 13 and unless prior thereto the
Company and such Principal Party shall have executed and delivered
32
to the Rights Agent a supplemental agreement providing for the
terms set forth in paragraphs (a) and (b) of this Section 13 and
further providing that, as soon as practicable after the date of
any such Flip-Over Event, the Principal Party will
(i) prepare and file a registration statement under the
Securities Act, with respect to the Rights and the securities
purchasable upon exercise of the Rights on an appropriate
form, and will use its best efforts to cause such registration
statement to (A) become effective as soon as practicable after
such filing and (B) remain effective (with a prospectus at all
times meeting the requirements of the Securities Act) until
the Expiration Date and take all such other action as may be
necessary to enable the Principal Party to issue the
securities purchasable upon exercise of the Rights, including,
but not limited to the registration or qualification of such
securities under all requisite securities laws or
jurisdictions of the various states and the listing of such
securities on such exchange and trading markets as may be
necessary or appropriate;
(ii) use its best efforts, if the Common Stock of the
Principal Party shall be listed or admitted to trading on the
New York Stock Exchange or on another national securities
exchange, to list or admit to trading (or continue the listing
of) the Rights and the securities purchasable upon exercise of
the Rights on the New York Stock Exchange or such other
securities exchange, or, if the Common Stock of the Principal
Party shall not be listed or admitted to trading on the New
York Stock Exchange or a national securities exchange, to
cause the Rights and the securities receivable upon exercise
of the Rights to be reported by such other system then in use;
(iii) deliver to holders of the Rights historical
financial statements for the Principal Party and each of its
Affiliates which comply in all respects with the requirements
for registration on Form 10 (or any successor form) under the
Exchange Act; and
(iv) obtain waivers of any rights of first refusal or
preemptive rights in respect of the Common Stock of the
Principal Party subject to purchase upon exercise of
outstanding Rights.
The provisions of this Section 13 shall similarly apply to
successive Flip-Over Events. In the event that a Flip-Over Event
33
shall occur at any time after the occurrence of a Flip-In Event,
the Rights which have not theretofore been exercised shall
thereafter become exercisable in the manner described in Section
13(a).
(d) Notwithstanding anything in this Agreement to the
contrary, Section 13 shall not be applicable to a transaction
described in clause (x) or (y) of the first sentence of Section
13(a) if
(i) such transaction is consummated with a Person or
Persons who acquired shares of Common Stock pursuant to a
tender offer or exchange offer for all outstanding shares of
Common Stock which is a Qualified Offer as such term is
defined in Section 11(a)(ii)(A) hereof (or a wholly owned
subsidiary of any such Person or Persons),
(ii) the price per share of Common Stock offered in such
transaction is not less than the price per share of Common
Stock paid to all holders of shares of Common Stock whose
shares were purchased pursuant to such tender offer or
exchange offer, and
(iii) the form of consideration being offered to the
remaining holders of shares of Common Stock pursuant to such
transaction is the same as the form of consideration paid
pursuant to such tender offer or exchange offer.
Upon consummation of any such transaction contemplated by this
Section 13(d), all Rights hereunder shall expire.
Section 14. Fractional Rights and Fractional Shares.
(a) The Company shall not be required to issue fractions of
Rights, except prior to the Distribution Date as provided in
Section 11(p) hereof, or to distribute Right Certificates which
evidence fractional Rights. If the Company decides not to issue
fractional Rights, there shall be paid in lieu thereof 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 purposes of this Section 14(a), the current
market value of a whole Right shall be the closing price of the
Rights for the Trading Day immediately prior to the date on which
such fractional Rights would have been otherwise issuable. The
closing price of the Rights for any Trading Day shall be the last
34
sale price, regular way, or, in case no such sale takes place on
such Trading 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 Company. If on
any such date no such market maker is making a market in the Rights
the fair value of the Rights on such date as determined in good
faith by the Board of Directors of the Company shall be used.
(b) The Company shall not be required to issue fractions of
shares of Preferred Stock (other than fractions which are integral
multiples of one six-hundredth of a share of Preferred Stock) upon
exercise of the Rights or to distribute certificates which evidence
fractional shares of Preferred Stock (other than fractions which
are integral multiples of one six-hundredth of a share of Preferred
Stock). Interests in fractions of Preferred Stock in integral
multiples of one six-hundredths of a share of Preferred Stock may,
at the election of the Company, be evidenced by depositary
receipts, pursuant to an appropriate agreement between the Company
and a depositary selected by it; provided, however, that such
agreement shall provide that the holders of such depositary
receipts shall have all the rights, privileges and preferences to
which they are entitled as beneficial owners of the Preferred Stock
represented by such depositary receipts. If the Company decides
not to issue fractional shares of Preferred Stock that are not
integral multiples of one six-hundredth of a share of Preferred
Stock, there shall be paid in lieu thereof to the registered
holders 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 six-hundredth of a share of
35
Preferred Stock. For purposes of this Section 14(b), the current
market value of one six-hundredth of a share of Preferred Stock
shall be one six-hundredth of the closing price of a share of
Preferred Stock (as determined pursuant to Section 11(d)(ii)
hereof) for the Trading Day immediately prior to the date of such
exercise.
(c) Following the occurrence of a Triggering Event, the
Company shall not be required to issue fractions of shares of
Common Stock upon exercise of the Rights or to distribute
certificates which evidence fractional shares of Common Stock. If
the Company decides not to issue fractional shares of Common Stock,
there shall be paid in lieu thereof to the registered holders 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 (1) share of Common Stock. For
purposes of this Section 14(c), the current market value of one (1)
share of Common Stock shall be the closing price of one (1) share
of Common Stock (as determined pursuant to Section 11(d)(i) hereof)
for the Trading Day immediately prior to the date of such exercise.
(d) The holder of a Right by the acceptance of the Rights
expressly waives his right to receive any fractional Rights or any
fractional shares upon exercise of a Right, except as permitted by
this Section 14.
Section 15. Rights of Action. All rights of action in
respect of this Agreement are vested in the respective registered
holders of the Right Certificates (and, prior to the Distribution
Date, the registered holders of the Common Stock); and any
registered holder of any Right Certificate (or, prior to the
Distribution Date, of the Common Stock), without the consent of the
Rights Agent or of the holder of any other Right Certificate (or,
prior to the Distribution Date, of the Common Stock), may, in such
holder's own behalf and for such holder's own benefit, enforce, and
may institute and maintain any suit, action or proceeding against
the Company to enforce, or otherwise act in respect of, such
holder's 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 shall be entitled to specific
performance of the obligations hereunder and injunctive relief
against actual or threatened violations of the obligations
hereunder of any Person subject to this Agreement.
36
Section 16. Agreement of Rights Holders. Every holder of a
Right by accepting the same consents and agrees with the Company
and the Rights Agent and with every other holder of a Right that:
(a) prior to the Distribution Date, the Rights will be
transferable only in connection with the transfer of Common Stock;
(b) after the Distribution Date, the Right Certificates are
transferable only on the registry books of the Rights Agent if
surrendered at the principal office or offices of the Rights Agent
designated for such purposes, duly endorsed or accompanied by a
proper instrument of transfer and with the appropriate forms and
certificates fully executed;
(c) subject to Section 6(a) and Section 7(f) hereof, the
Company and the Rights Agent may deem and treat the person in whose
name a Right Certificate (or, prior to the Distribution Date, the
associated Common Stock 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 Stock certificate made by anyone other than
the Company or the Rights Agent) for all purposes whatsoever, and
neither the Company nor the Rights Agent, subject to the last
sentence of Section 7(e) hereof, shall be required to be affected
by any notice to the contrary; and
(d) notwithstanding anything in this Agreement to the
contrary, neither the Company nor the Rights Agent shall have any
liability to any holder of a Right or other Person as a result of
its inability to perform any of its obligations under this
Agreement by reason of any preliminary or permanent injunction or
other order, decree or ruling issued by a court of competent
jurisdiction or by a governmental, regulatory or administrative
agency or commission, or any statute, rule, regulation or executive
order promulgated or enacted by any governmental authority
prohibiting or otherwise restraining performance of such
obligation; provided, however, the Company shall be required to use
its best efforts to have any such order, decree or ruling lifted,
overturned or otherwise removed as soon as possible.
Section 17. Right Certificate Holder Not Deemed a Shareowner.
No holder, as such, of any Right Certificate shall be entitled to
vote, receive dividends or be deemed for any purpose the holder of
the number of one six-hundredths of a share of Preferred Stock or
any other securities of the Company which may at any time be
issuable on the exercise of the Rights represented thereby, nor
37
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 shareowner of the Company or any right
to vote for the election of directors or upon any matter submitted
to shareowners at any meeting thereof, or to give or withhold
consent to any corporate action, or to receive notice of meetings
or other actions affecting shareowners (except as provided in
Section 24 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.
(a) The Company agrees to pay to the Rights Agent reasonable
compensation for all services rendered by it hereunder and, from
time to time, on demand of the Rights Agent, its reasonable
expenses and counsel fees and disbursements and other disbursements
incurred in the administration and execution of this Agreement and
the exercise and performance of its duties hereunder. The Company
also agrees to indemnify the Rights Agent for, and to hold it
harmless against, any loss, liability, or expense, incurred without
negligence, bad faith or willful misconduct on the part of the
Rights Agent, for anything done or omitted to be done by the Rights
Agent in connection with the acceptance and administration of this
Agreement, including the costs and expenses of defending against
any claim of liability in connection therewith; provided, however,
that the Rights Agent shall also be indemnified and held harmless
against any loss, liability or expense incurred as a result of a
claim for indirect, special, consequential or punitive damages.
The provisions of this Section 18(a) shall survive the termination
of this Agreement.
(b) The Rights Agent shall be protected and shall incur no
liability for or in respect of any action taken, suffered or
omitted to be taken by it in connection with its administration of
this Agreement in reliance upon any Right Certificate or
certificate for Common Stock or for other securities of the
Company, instrument of assignment or transfer, power of attorney,
endorsement, affidavit, letter, notice, direction, consent,
certificate, statement, or other paper or document believed by it
to be genuine and to be signed, executed and, where necessary,
verified or acknowledged, by the proper Person or Persons.
Section 19. Merger or Consolidation or Change of Name of
Rights Agent.
38
(a) Any corporation into which the Rights Agent or any
successor Rights Agent may be merged or with which it may be
consolidated, or any corporation resulting from any merger or
consolidation to which the Rights Agent or any successor Rights
Agent shall be a party, or any corporation succeeding to the
corporate trust or stock transfer business of the Rights Agent or
any successor Rights Agent, shall be the successor to the Rights
Agent under this Agreement without the execution or filing of any
paper or any further act on the part of any of the parties hereto;
provided, however, that such corporation would be eligible for
appointment as a successor Rights Agent under the provisions of
Section 21 hereof. 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 a
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 or in the name of the successor Rights
Agent; and in all such cases such Right Certificates shall have the
full force provided in the Right Certificates and in this
Agreement.
(b) In case at any time the name of the Rights Agent shall be
changed and at such time any of the Right Certificates shall have
been countersigned but not delivered, the Rights Agent may adopt
the countersignature under its prior name and deliver Right
Certificates so countersigned; and in case at that time any of the
Right Certificates shall not have been countersigned, the Rights
Agent may countersign such Right Certificates either in its prior
name or in its changed name; and in all such cases such Right
Certificate shall have the full force provided in the Right
Certificates and in this Agreement.
Section 20. Duties of Rights Agent. The Rights Agent
undertakes the duties and obligations imposed by this Agreement
upon the following terms and conditions, by all of which the
Company and the holders of Right Certificates, by their acceptance
thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel (who may
be legal counsel for the Company), and the opinion of such counsel
shall be full and complete authorization and protection to the
39
Rights Agent as to any action taken or omitted to be taken by it in
good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this
Agreement the Rights Agent shall deem it necessary or desirable
that any fact or matter (including, without limitation, the
identity of any Acquiring Person and the determination of "current
market price") be proved or established by the Company prior to
taking or suffering any action hereunder, such fact or matter
(unless other evidence in respect thereof be herein specifically
prescribed) may be deemed to be conclusively proved and established
by a certificate signed by the Chairman of the Board, the
President, any Vice President, the Treasurer, any Assistant
Treasurer, the Secretary or any Assistant Secretary of the Company
and delivered to the Rights Agent; and such certificate shall be
full authorization to the Rights Agent for any action taken or
suffered in good faith by it under the provisions of this Agreement
in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder only for its
own negligence, bad faith or willful misconduct; provided, however,
that the Rights Agent shall not be liable for indirect, special,
consequential or punitive damages.
(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 or be required to verify the
same (except as to its countersignature on such Right
Certificates), but all such statements and recitals are and shall
be deemed to have been made by the Company only.
(e) The Rights Agent shall not be under any responsibility in
respect of the validity of this Agreement or the execution and
delivery hereof (except the due execution hereof by the Rights
Agent) or in respect of the validity or execution of any Right
Certificate (except its countersignature thereof); nor shall it be
responsible for any breach by the Company of any covenant or
condition contained in this Agreement or in any Right Certificate;
nor shall it be responsible for any adjustment required under the
provisions of Section 11 or Section 13 hereof or responsible for
the manner, method or amount of any such adjustment or the
ascertaining of the existence of facts that would require any such
adjustment (except with respect to the exercise of Rights evidenced
by Right Certificates after actual notice of any such adjustment);
nor shall it by any act hereunder be deemed to make any
representation or warranty as to the authorization or reservation
40
of any shares of Common Stock or Preferred Stock to be issued
pursuant to this Agreement or any Right Certificate or as to
whether any shares of Common Stock or Preferred Stock will, when so
issued, be validly authorized and issued, fully paid and
nonassessable.
(f) The Company agrees that it will perform, execute,
acknowledge and deliver or cause to be performed, executed,
acknowledged and delivered all such further and other acts,
instruments and assurances as may reasonably be required by the
Rights Agent for the carrying out or performing by the Rights Agent
of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to
accept instructions with respect to the performance of its duties
hereunder from the Chairman of the Board, the President, any Vice
President, the Secretary, any Assistant Secretary, the Treasurer or
any Assistant Treasurer of the Company, and to apply to such
officers for advice or instructions in connection with its duties,
and it shall not be liable for any action taken or suffered to be
taken by it in good faith in accordance with instructions of any
such officer.
(h) The Rights Agent and any shareowner, director, officer or
employee of the Rights Agent may buy, sell or deal in any of the
Rights or other securities of the Company or become pecuniarily
interested in any transaction in which the Company may be
interested, or contract with or lend money to the Company or
otherwise act as fully and freely as though it were not Rights
Agent under this Agreement. Nothing herein shall preclude the
Rights Agent from acting in any other capacity for the Company or
for any other legal entity.
(i) The Rights Agent may execute and exercise any of the
rights or powers hereby vested in it or perform any duty hereunder
either itself or by or through its attorneys or agents, and the
Rights Agent shall not be answerable or accountable for any act,
default, neglect or misconduct of any such attorneys or agents or
for any loss to the Company resulting from any such act, default,
neglect or misconduct; provided, however, reasonable care was
exercised in the selection and continued employment thereof.
(j) No provision of this Agreement shall require the Rights
Agent to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder or in the exercise of its rights if there shall be
41
reasonable grounds for believing that repayment of such funds or
adequate indemnification against such risk or liability is not
reasonably assured to it.
(k) If, with respect to any Right Certificate surrendered to
the Rights Agent for exercise or transfer, the certificate attached
to the form of assignment or form of election to purchase, as the
case may be, has either not been completed or indicates an
affirmative response to clause 1 and/or 2 thereof, the Rights Agent
shall not take any further action with respect to such requested
exercise or transfer without first consulting with the Company.
(l) Any application by the Rights Agent for written
instructions from the Company may, at the option of the Rights
Agent, set forth in writing any action proposed to be taken or
omitted to be taken by the Rights Agent under this Agreement and
the date on and/or after which such action shall be taken or such
omission shall be effective. The Rights Agent shall not be liable
for any action taken by, or omission of, the Rights Agent in
accordance with a proposal included in such application on or after
the date specified in such application (which date shall not be
less than five Business Days after the date any officer of the
Company actually receives such application, unless any such officer
shall have consented in writing to any earlier date) unless prior
to taking any such action (or the effective date in the case of an
omission), the Rights Agent shall have received written
instructions in response to such application specifying the action
to be taken.
(m) In addition to the foregoing, the Rights Agent shall be
protected and shall incur no liability for, or in respect of, any
action taken or omitted to be taken by it in connection with its
administration of this Agreement if such acts or omissions are in
reliance upon (i) the proper execution of the certifications
concerning beneficial ownership appended to the form of assignment
and the form of election to purchase attached hereto unless the
Rights Agent shall have actual knowledge that, as executed, such
certification is untrue, or (ii) the non-execution of such
certification including, without limitation, any refusal to honor
any otherwise permissible assignment or election by reason of such
non-execution.
(n) The Company agrees to give the Rights Agent prompt
written notice of any event or ownership which would prohibit the
exercise or transfer of the Right Certificates.
42
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 five (5) calendar days' notice in writing
mailed to the Company, and to each transfer agent of the Common
Stock and Preferred Stock, by registered or certified mail, and to
the holders of the Right Certificates by first-class mail. The
Company may remove the Rights Agent or any successor Rights Agent
upon thirty (30) calendar days' notice in writing, mailed to the
Rights Agent or successor Rights Agent, as the case may be, and to
each transfer agent of the Common Stock and Preferred Stock, 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
Company shall appoint a successor to the Rights Agent. If the
Company shall fail to make such appointment within a period of
thirty (30) calendar days after giving notice of such removal or
after it has been notified in writing of such resignation or
incapacity by the resigning or incapacitated Rights Agent or by the
holder of a Right Certificate (who shall, with such notice, submit
his Right Certificate for inspection by the Company), then the
Rights Agent or any registered holder of any Right Certificate may
apply to any court of competent jurisdiction for the appointment of
a new Rights Agent. Any successor Rights Agent, whether appointed
by the Company or by such a court, shall be (a) a corporation
organized and doing business under the laws of the United States or
of the State of Missouri (or of any other state of the United
States so long as such corporation is authorized to do business in
the State of Missouri or the State of New York), in good standing,
having a principal office in the State of Missouri or the State of
New York, which is authorized under such laws to exercise corporate
trust or stock transfer powers and is subject to supervision or
examination by federal or state authority and which has at the time
of its appointment as Rights Agent a combined capital and surplus
of at least $100,000,000, or (b) an affiliate controlled by a
corporation described in clause (a) of this sentence. After
appointment, the successor Rights Agent shall be vested with the
same powers, rights, duties and responsibilities as if it had been
originally named as Rights Agent without further act or deed; but
the predecessor Rights Agent shall deliver and transfer to the
successor Rights Agent any property at the time held by it
hereunder, and execute and deliver any further assurance,
conveyance, act or deed necessary for the purpose. Not later than
the effective date of any such appointment, the Company shall file
notice thereof in writing with the predecessor Rights Agent and
each transfer agent of the Common Stock and the Preferred Stock,
43
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 Company may, at its option, issue new
Right Certificates evidencing Rights in such form as may be
approved by its Board of Directors to reflect any adjustment or
change in the Purchase Price and the number or kind or class of
shares or other securities or property purchasable under the Right
Certificates made in accordance with the provisions of this
Agreement. In addition, in connection with the issuance or sale of
shares of Common Stock following the Distribution Date and prior to
the redemption or expiration of the Rights, the Company (a) shall,
with respect to shares of Common Stock so issued or sold pursuant
to the exercise of stock options or under any employee plan or
arrangement, or upon the exercise, conversion or exchange of
securities hereinafter issued by the Company, and (b) may, in any
other case, if deemed necessary or appropriate by the Board of
Directors of the Company, issue Right Certificates representing the
appropriate number of Rights in connection with such issuance or
sale; provided, however, that (i) no such Right Certificate shall
be issued if, and to the extent that, the Company shall be advised
by counsel that such issuance would create a significant risk of
material adverse tax consequences to the Company or the Person to
whom such Right Certificate would be issued, and (ii) no such Right
Certificate shall be issued if, and to the extent that, appropriate
adjustment shall otherwise have been made in lieu of the issuance
thereof.
Section 23. Redemption and Termination.
(a) The Board of Directors of the Company may, at its option,
at any time prior to 5:00 p.m., New York time, on or before the
earlier of (i) the tenth Business Day following the Stock
Acquisition Date, as such period may be extended pursuant to
Section 26 hereof, or (ii) the Final Expiration Date, redeem all
but not less than all of the then outstanding Rights at a
redemption price of $.01 per Right, as such amount may be
appropriately adjusted to reflect any stock split, stock dividend
or similar transaction occurring after the date hereof (such
redemption price being hereinafter referred to as the "Redemption
Price"). The redemption of the Rights may be made effective at
44
such time, on such basis and with such conditions as the Board of
Directors of the Company in its sole discretion may establish. If,
following the occurrence of a Stock Acquisition Date and following
the expiration of the right of redemption hereunder but prior to
any Triggering Event,
(i) a Person who is an Acquiring Person shall have
transferred or otherwise disposed of a number of shares of
Common Stock in one transaction, or series of transactions,
not directly or indirectly involving the Company or any of its
Subsidiaries, which did not result in the occurrence of a
Triggering Event such that such Person is thereafter a
Beneficial Owner of 10% or less of the outstanding shares of
Common Stock, and
(ii) there are no other Persons, immediately following
the occurrence of the event described in clause (i), who are
Acquiring Persons,
then the right of redemption shall be reinstated and thereafter be
subject to the provisions of this Section 23. Notwithstanding
anything contained in this Agreement to the contrary, the Rights
shall not be exercisable after the first occurrence of a Flip-In
Event until such time as the Company's right of redemption
hereunder has expired. The Company may, at its option, pay the
Redemption Price in cash, shares of Common Stock (based on the
"current market price", as defined in Section 11(d)(i) hereof, of
the Common Stock at the time of redemption) or any other form of
consideration deemed appropriate by the Board of Directors.
(b) Immediately upon the action of the Board of Directors of
the Company ordering the redemption of the Rights, evidence of
which shall have been filed with the Rights Agent and without any
further action and without any notice, the right to exercise the
Rights will terminate and the only right thereafter of the holders
of Rights shall be to receive the Redemption Price for each Right
so held. Promptly after the action of the Board of Directors
ordering the redemption of the Rights, the Company shall give
notice of such redemption to the Rights Agent and the holders of
the then outstanding Rights by mailing such notice to all such
holders at each holder's last address as it appears upon the
registry books of the Rights Agent or, prior to the Distribution
Date, on the registry books of the Transfer Agent for the Common
Stock. Any notice which is mailed in the manner herein provided
shall be deemed given, whether or not the holder receives the
45
notice. Each such notice of redemption will state the method by
which the payment of the Redemption Price will be made.
Section 24. Exchange.
(a) The Company may, at its option, at any time and from time
to time after a Flip-In Event, exchange all or part of the then
outstanding and exercisable Rights (which shall not include Rights
that have become void pursuant to the provisions of Section 7(e)
hereof) by exchanging for each such Right one share of Common
Stock, appropriately adjusted to reflect a stock split, stock
dividend or similar transaction occurring after the date of such
Flip-In Event (such amount per Right being hereinafter referred to
as the "Exchange Consideration". Notwithstanding the foregoing,
the Company shall not be empowered to effect such exchange at any
time after any Person, together with all Affiliates and Associates
of such Person, becomes the Beneficial Owner of shares of Common
Stock aggregating more than 50% or more of the shares of Common
Stock then outstanding. From and after the occurrence of a Flip-
Over Event, any Rights that theretofore have not been exchanged
pursuant to this Section 24 shall thereafter be exercisable only in
accordance with Section 13 and may not be exchanged pursuant to
this Section 24(a).
(b) Immediately upon the action of the Company ordering the
exchange of any Rights pursuant to paragraph (a) of this Section 24
and without any further action and without any notice, the right to
exercise such Rights shall terminate and the only right thereafter
of a holder of such Rights shall be to receive the Exchange
Consideration. The Company shall promptly give public notice of
any such exchange; provided, however, that the failure to give, or
any defect in, such notice shall not affect the validity of such
exchange. The Company shall promptly mail a notice of any such
exchange to all holders of the Rights so exchanged at their last
addresses as they appear upon the registry books of the Rights
Agent. Any notice which is mailed in the manner herein provided
shall be deemed given, whether or not the holder receives the
notice. Each such notice of exchange will state the method by
which the exchange of the shares of Common Stock for Rights will be
effected and, in the event of any partial exchange, the number of
Rights which will be exchanged. Any partial exchange shall be
effected pro rata based on the number of Rights (other than Rights
which have become void pursuant to the provisions of Section 7(e)
hereof) held by each holder of Rights.
46
(c) The Company may at its option substitute, and, in the
event that there shall not be sufficient shares of Common Stock
issued but not outstanding or authorized but unissued to permit any
exchange of Rights as contemplated in accordance with this Section
24, the Company shall substitute to the extent of such
insufficiency, for each share of Common Stock to be issuable upon
exchange of a Right, a number of shares of "common stock
equivalents" having an aggregate current per share market price
(determined pursuant to Section 11(d) hereof) equal to the current
per share market price of one share of Common Stock (determined
pursuant to Section 11(d) hereof) as of the date of the Flip-In
Event.
(d) The Company shall not, in connection with any exchange
pursuant to this Section 24, be required to issue fractions of
shares of Common Stock or to distribute certificates which evidence
fractional shares of Common Stock. In lieu of such fractional
shares of Common Stock, the Company shall pay to the registered
holders of the Right Certificates with regard to which such
fractional shares of Common Stock would otherwise be issuable an
amount in cash equal to the same fraction of the current market
value of a whole share of Common Stock. For purposes of this
paragraph (d), the current market value of a whole share of Common
Stock shall be the closing price of a share of Common Stock (as
determined pursuant to Section 11(d) hereof) for the Trading Day
immediately prior to the date of exchange pursuant to this Section
24.
Section 25. Notice of Certain Events.
(a) In case the Company shall propose, at any time after the
Distribution Date,
(i) to pay any dividend payable in stock of any class to
the holders of Preferred Stock or to make any other
distribution to the holders of Preferred Stock (other than a
regular quarterly cash dividend out of earnings or retained
earnings of the Company), or
(ii) to offer to the holders of Preferred Stock rights or
warrants to subscribe for or to purchase any additional shares
of Preferred Stock or shares of stock of any class or any
other securities, rights or options, or
47
(iii) to effect any reclassification of its Preferred
Stock (other than a reclassification involving only the
subdivision of outstanding shares of Preferred Stock), or
(iv) to effect any consolidation or merger into or with
any other Person (other than a Subsidiary of the Company in a
transaction which complies with Section 11(o) hereof), or to
effect any sale or other transfer (or to permit one or more of
its Subsidiaries to effect any sale or other transfer), in one
transaction or a series of transactions, of more than 50% of
the assets, cash flow or earning power of the Company and its
Subsidiaries (taken as a whole) to any other Person or Persons
(other than the Company and/or any of its Subsidiaries in one
or more transactions each of which complies with Section 11(o)
hereof), or
(v) to effect the liquidation, dissolution or winding up
of the Company,
then, in each such case, the Company shall give to each holder of a
Right Certificate, to the extent feasible and 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,
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 shares of
Preferred Stock, if any such date is to be fixed, and such notice
shall be so given in the case of any action covered by clause (i)
or (ii) above at least twenty (20) calendar days prior to the
record date for determining holders of the shares of Preferred
Stock for purposes of such action, and in the case of any such
other action, at least twenty (20) calendar days prior to the date
of the taking of such proposed action or the date of participation
therein by the holders of the shares of Preferred Stock whichever
shall be the earlier.
(b) In case any Flip-In Event shall occur, then (i) the
Company shall as soon as practicable thereafter give to each holder
of a Right Certificate, to the extent feasible and in accordance
with Section 26 hereof, a notice of the occurrence of such event,
which shall specify the event and the consequences of the event to
holders of Rights under Section 11(a)(ii) hereof, and (ii) all
references in the preceding paragraph to Preferred Stock shall be
deemed thereafter to refer to Common Stock and/or, if appropriate,
other securities.
48
Section 26. Notices. Notices or demands authorized by this
Agreement to be given or made by the Rights Agent or by the holder
of any Right Certificate to or on the Company shall be sufficiently
given or made if sent by first-class mail, postage prepaid,
addressed (until another address is filed in writing with the
Rights Agent) or by facsimile (with receipt confirmed), as follows:
The May Department Stores Company
000 Xxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Corporate Secretary
Fax: 314/000-0000
Subject to the provisions of Section 21, any notice or demand
authorized by this Agreement to be given or made by the Company or
by the holder of any Right Certificate to or on the Rights Agent
shall be sufficiently given or made if sent by first-class mail,
postage prepaid, addressed (until another address is filed in
writing with the Company) or by facsimile (with receipt confirmed),
as follows:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Fax: 212/000-0000
Notices or demands authorized by this Agreement to be given or made
by the Company or the Rights Agent to the holder of any Right
Certificate (or, if prior to the Distribution Date, to the holder
of certificates representing shares of Common Stock) shall be
sufficiently given or made if sent by first-class mail, postage
prepaid, addressed to such holder at the address of such holder as
shown on the registry books of the Company.
Section 27. Supplements and Amendments. Prior to the
Distribution Date and subject to the penultimate sentence of this
Section 27, the Company and the Rights Agent shall, if the Company
so directs, supplement or amend any provision of this Agreement
without the approval of any holders of certificates representing
shares of Common Stock. From and after the Distribution Date and
subject to the penultimate sentence of this Section 27, the Company
and the Rights Agent shall, if the Company so directs, supplement
or amend this Agreement without the approval of any holders of
Right Certificates in order
49
(i) to cure any ambiguity,
(ii) to correct or supplement any provision contained
herein which may be defective or inconsistent with any other
provisions herein,
(iii) to shorten or lengthen any time period hereunder
(including, without limitation, the period within which the
Rights may be redeemed in accordance with Section 23 hereof)
or
(iv) to change or supplement the provisions hereunder in
any manner which the Company may deem necessary or desirable
and which shall not adversely affect the interests of the
holders of Right Certificates (other than an Acquiring Person
or an Affiliate or Associate of an Acquiring Person),
provided, this Agreement may not be supplemented or amended to
lengthen, pursuant to clause (iii) of this sentence, (A) a time
period relating to when the Rights may be redeemed at such time as
the Rights are not then redeemable, or (B) any other time period
unless such lengthening is for the purpose of protecting, enhancing
or clarifying the rights of, and/or the benefits to, the holders of
Rights. Upon the delivery of a certificate from an appropriate
officer of the Company which states that the proposed supplement or
amendment is in compliance with the terms of this Section 27, the
Rights Agent shall execute such supplement or amendment.
Notwithstanding anything contained in this Agreement to the
contrary, no supplement or amendment shall be made which changes
the Redemption Price, the Final Expiration Date, the Purchase Price
or the number of one six-hundredths of a share of Preferred Stock
for which a Right is exercisable; provided, however, that at any
time prior to (i) the existence of an Acquiring Person, or (ii) the
date that a tender or exchange offer by any Person (other than the
Company, any Subsidiary of the Company, any employee benefit plan
of the Company or any Subsidiary of the Company, or any Person or
entity organized, appointed or established by the Company for or
pursuant to the terms of any such plan) is first published or sent
or given within the meaning of Rule 14d-2(a) of the General Rules
and Regulations under the Exchange Act, if upon consummation
thereof, such Person would be the Beneficial Owner of 15% or more
of the shares of Common Stock then outstanding, the Board of
Directors of the Company may amend this Agreement to increase the
Purchase Price or extend the Final Expiration Date. Prior to the
Distribution Date, the interests of the holders of Rights shall be
50
deemed coincident with the interests of the holders of Common
Stock.
Section 28. Successors. All the covenants and provisions of
this Agreement by or for the benefit of the Company or the Rights
Agent shall bind and inure to the benefit of their respective
successors and assigns hereunder.
Section 29. Determinations and Actions by the Board of
Directors, etc. For all purposes of this Agreement, any
calculation of the number of shares of Common Stock outstanding at
any particular time, including for purposes of determining the
particular percentage of such outstanding shares of Common Stock of
which any Person is the Beneficial Owner, shall be made in
accordance with the last sentence of Rule 13d-3(d)(1)(i) of the
General Rules and Regulations under the Exchange Act. The Board of
Directors of the Company shall have the exclusive power and
authority to administer this Agreement and to exercise all rights
and powers specifically granted to the Board, or to the Company, or
as may be necessary or advisable in the administration of this
Agreement, including, without limitation, the right and power to
(i) interpret the provisions of this Agreement, and (ii) make all
determinations deemed necessary or advisable for the administration
of this Agreement (including a determination to redeem or not
redeem the Rights or to amend the Agreement). All such actions,
calculations, interpretations and determinations (including, for
purposes of clause (y) below, all omissions with respect to the
foregoing) which are done or made by the Board in good faith, shall
(x) be final, conclusive and binding on the Company, the Rights
Agent, the holders of the Rights and all other parties, and (y) not
subject the Board to any liability to the holders of the Rights.
Section 30. Benefits of this Agreement. Nothing in this
Agreement shall be construed to give to any Person other than the
Company, the Rights Agent and the registered holders of the Right
Certificates (and, prior to the Distribution Date, registered
holders of the Common Stock) any legal or equitable right, remedy
or claim under this Agreement; but this Agreement shall be for the
sole and exclusive benefit of the Company, the Rights Agent and the
registered holders of the Right Certificates (and, prior to the
Distribution Date, registered holders of the Common Stock).
Section 31. 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
51
and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated;
provided, however, that notwithstanding anything in this Agreement
to the contrary, if any such term, provision, covenant or
restriction is held by such court or authority to be invalid, void
or unenforceable and the Board of Directors of the Company
determines in its good faith judgment that severing the invalid
language from this Agreement would adversely affect the purpose or
effect of this Agreement, the right of redemption set forth in
Section 23 hereof shall be reinstated and shall not expire until
the Close of business on the tenth day following the date of such
determination by the Board of Directors.
Section 32. Governing Law. This Agreement, each Right and
each Right Certificate issued hereunder shall be deemed to be a
contract made under the laws of the State of Delaware and for all
purposes shall be governed by and construed in accordance with the
laws of such State applicable to contracts made and to be performed
entirely within such State; provided, however, that the rights,
duties and obligations of the Rights Agent, hereunder, shall be
governed by and construed in accordance with the laws of the State
of New York.
Section 33. 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 34. 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.
52
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and their respective corporate seals
to be hereunto affixed and attested, all as of August 31, 2004.
Attest: THE MAY DEPARTMENT STORES
COMPANY
By /s/ Xxxxxxx X. Brickon By /s/ Xxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxxx Name: Xxx X. Xxxxxxx
Title: Secretary Title: Senior Vice President
and Treasurer
Attest: THE BANK OF NEW YORK
By /s/ Xxxxxxxx Xxxxx By /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxxxx Xxxxx Name: Xxxxxx X. Xxxxxxx
Title: Assistant Vice Title: Assistant Vice
President President
53
Exhibit A
[Form of Right Certificate]
Certificate No. R- ________ Rights
NOT EXERCISABLE AFTER AUGUST 31, 2014 OR EARLIER IF REDEEMED
BY THE COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE
OPTION OF THE COMPANY, AT $.01 PER RIGHT ON THE TERMS SET
FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES,
RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS SUCH TERM
IS DEFINED IN THE RIGHTS AGREEMENT) AND ANY SUBSEQUENT HOLDER
OF SUCH RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS
REPRESENTED BY THIS RIGHT CERTIFICATE ARE OR WERE BENEFICIALLY
OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN
AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS
ARE DEFINED IN THE RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHT
CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY BECOME NULL
AND VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF
SUCH AGREEMENT.]
Right Certificate
THE MAY DEPARTMENT STORES COMPANY
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 August 27, 2004 (the "Rights Agreement"),
between The May Department Stores Company, a Delaware corporation
(the "Company"), and The Bank of New York, a banking company
organized under the laws of the State of New York (the "Rights
Agent"), to purchase from the Company at any time prior to 5:00
p.m. (New York time) on August 31, 2014 at the office or offices of
the Rights Agent designated for such purpose, or its successors as
Rights Agent, one six-hundredth of a fully paid, non-assessable
Junior Participating Preference Share (the "Preferred Stock") of
the Company, at a purchase price of $125 per one six-hundredth of a
share (the "Purchase Price"), upon presentation and surrender of
this Right Certificate with the Form of Election to Purchase and
related Certificate duly executed. The number of Rights evidenced
by this Right Certificate (and the number of shares which may be
purchased upon exercise thereof) set forth above, and the Purchase
Price per share set forth above, are the number and Purchase Price
as of _________ __, 20__, based on the Preferred Stock as
constituted at such date.
Upon the occurrence of a Flip-In Event (as such term is
defined in the Right Agreement), if the Rights evidenced by this
Right Certificate are beneficially owned by (i) an Acquiring Person
or an Affiliate or Associate of any such Person (as such terms are
defined in the Rights Agreement), (ii) a transferee of any such
Acquiring Person, Associate or Affiliate, or (iii) under certain
circumstances specified in the Rights Agreement, a transferee of a
person who, after such transfer, became an Acquiring Person or an
Affiliate or Associate of an Acquiring Person, such Rights shall
become null and void and no holder hereof shall have any right with
respect to such Rights from and after the occurrence of such Flip-
In Event.
As provided in the Rights Agreement, the Purchase Price and
the number and kind of shares of Preferred Stock or other
securities which may be purchased upon the exercise of the Rights
evidenced by this Right Certificate are subject to modification and
adjustment upon the happening of certain events.
This Right Certificate is subject to all of the terms,
provisions and conditions of the Rights Agreement, which terms,
provisions and conditions are hereby incorporated herein by
reference and made a part hereof and to which Rights Agreement
reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities hereunder
of the Rights Agent, the Company and the holders of the Right
Certificates, which limitations of rights include the temporary
suspension of the exercisability of such Rights under the specific
circumstances set forth in the Rights Agreement. Copies of the
Rights Agreement are on file at the principal offices of the
Company and are available upon written request.
This Right Certificate, with or without other Right
Certificates, upon surrender at the principal office or offices of
the Rights Agent designated for such purpose, may be exchanged for
another Right Certificate or Right Certificates of like tenor and
date evidencing Right entitling the holder to purchase a like
aggregate number of one six-hundredths of a share of Preferred
Stock 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 (A) may be redeemed by the Company at
its option at a redemption price of $.01 per Right at any time
prior to the earlier of the Close of business on (i) the tenth
Business Day following the Stock Acquisition Date (as such term is
defined in the Rights Agreement), as such time period may be
extended pursuant to the Rights Agreement, and (ii) the Final
Expiration Date or (B) exchanged in whole or in part for shares of
the Company's Common Stock or shares of Preferred Stock or other
property or any combination threof. After the expiration of the
redemption period, the Company's right of redemption may be
reinstated if an Acquiring Person reduces its beneficial ownership
to 10% or less of the outstanding shares of Common Stock in a
transaction or series of transactions not involving the Company.
No fractional shares of Preferred Stock will be issued upon
the exercise of any Right or Rights evidenced hereby (other than
fractions which are integral multiples of one six-hundredth of a
share of Preferred Stock, which may, at the election of the
Company, be evidenced by depositary receipts), but in lieu thereof
a cash payment will be made, as provided in the Rights Agreement.
No holder of this Right Certificate shall be entitled to vote
or receive dividends or be deemed for any purpose the holder of
shares of Preferred Stock or of any other securities of the Company
which may at any time be issuable on the exercise hereof, nor shall
anything contained in the Rights Agreement or herein be construed
to confer upon the holder hereof, as such, any of the rights of a
shareowner of the Company or any right to vote for the election of
directors or upon any matter submitted to shareowners at any
meeting thereof, or to give or withhold consent to any corporate
action, or to receive notice of meetings or other actions affecting
shareowners (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
Company and its corporate seal.
Dated as of _________ __, 20__
ATTEST: THE MAY DEPARTMENT STORES COMPANY
____________________ By
Secretary Name:
Title:
Countersigned:
THE BANK OF NEW YORK
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
hereby sells, assigns and transfers unto
(Please print name and address of transferee)
this Right Certificate, together with all right, title and interest
therein, and does hereby irrevocably constitute and appoint
__________________ Attorney, to transfer the within Right
Certificate on the books of the within named Company, with full
power of substitution.
Dated: __________________, 20__
_______________________________
Signature
Signature Guaranteed:
Certificate
The undersigned hereby certifies by checking the appropriate
boxes that:
(1) this Right Certificate [ ] is [ ] is not being sold,
assigned and transferred by or on behalf of a Person who is or was
an Acquiring Person or an Affiliate or Associate of any such Person
(as such terms are defined pursuant to the Rights Agreement);
(2) after due inquiry and to the best knowledge of the
undersigned, it [ ] did [ ] did not acquire the Rights evidenced by
this Right Certificate from any Person who is, was or subsequently
became an Acquiring Person or an Affiliate or Associate of any such
Person.
Dated: ___________, 20__
_______________________________
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Assignment and Certificate must
correspond to the name as written upon the face of this Right
Certificate in every particular, without alteration or enlargement
or any change whatsoever.
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to
exercise Rights represented by the
Right Certificate.)
To: THE MAY DEPARTMENT STORES COMPANY:
The undersigned hereby irrevocably elects to exercise
__________ Rights represented by this Right Certificate to purchase
the shares of Preferred Stock issuable upon the exercise of the
Rights (or such other securities of the Company or of any other
person which may be issuable upon the exercise of the Rights) and
requests that certificates for such shares be issued in the name of
and delivered to:
Please insert social security
or other identifying number
___________________________________________________________________
(Please print name and address)
___________________________________________________________________
If such number of Rights shall not be all the Rights evidenced
by this Right Certificate, a new Right Certificate for the balance
of such Rights shall be registered in the name of and delivered to:
Please insert social security
or other identifying number
___________________________________________________________________
(Please print name and address)
___________________________________________________________________
___________________________________________________________________
Dated: _______________, 20__
_______________________________
Signature
Signature Guaranteed:
Certificate
The undersigned hereby certifies by checking the appropriate
boxes that:
(1) the Rights evidenced by this Right Certificate [ ] are [
] are not being exercised by or on behalf of a Person who is or was
an Acquiring Person or an Affiliate or Associate of any such Person
(as such terms are defined pursuant to the Rights Agreement);
(2) after due inquiry and to the best knowledge of the
undersigned, it [ ] did [ ] did not acquire the Rights evidenced by
this Right Certificate from any Person who is, was or became an
Acquiring Person or an Affiliate or Associate of any such Person.
Dated: ___________, 20__
_______________________________
Signature
NOTICE
The signature to the foregoing Election to Purchase and
Certificate must correspond to the name as written upon the face of
this Right Certificate in every particular, without alteration or
enlargement or any change whatsoever.
