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FORM OF RIGHTS AGREEMENT
TRIAD PARK, LLC
AND
[INSERT NAME OF RIGHTS AGENT],
RIGHTS AGENT
___________________________________
RIGHTS AGREEMENT
Dated as of [DATE], 1997
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TABLE OF CONTENTS
PAGE
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1. Certain Definitions . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Appointment of Rights Agent . . . . . . . . . . . . . . . . . . . . . 5
3. Issuance of Right Certificates . . . . . . . . . . . . . . . . . . . . 6
4. Form of Right Certificates . . . . . . . . . . . . . . . . . . . . . 7
5. Countersignature and Registration. . . . . . . . . . . . . . . . . . . 8
6. Transfer, Split Up, Combination and Exchange of Right
Certificates; Mutilated, Destroyed, Lost or Stolen
Right Certificates. . . . . . . . . . . . . . . . . . . . . . . . . 9
7. Exercise of Rights; Purchase Price; Expiration Date of Rights. . . . . 10
8. Cancellation and Destruction of Right Certificates . . . . . . . . . . 12
9. Reservation and Availability of Shares . . . . . . . . . . . . . . . . 12
10. Record Date. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
11. Adjustments to Number and Kind of Shares, Number of Rights
or Purchase Price. . . . . . . . . . . . . . . . . . . . . . . . . . 14
12. Certification of Adjustments. . . . . . . . . . . . . . . . . . . . . 24
13. Consolidation, Merger or Sale or Transfer of Assets
or Earning Power. . . . . . . . . . . . . . . . . . . . . . . . . . 24
14. Fractional Rights and Fractional Shares. . . . . . . . . . . . . . . . 29
15. Rights of Action. . . . . . . . . . . . . . . . . . . . . . . . . . . 30
16. Agreement of Right Holders. . . . . . . . . . . . . . . . . . . . . . 30
17. Right Certificate Holder Not Deemed a Share Holder. . . . . . . . . . 31
18. Concerning the Rights Agent. . . . . . . . . . . . . . . . . . . . . . 32
19. Merger or Consolidation or Change of Name of Rights Agent. . . . . . . 32
20. Duties of Rights Agent. . . . . . . . . . . . . . . . . . . . . . . . 33
21. Change of Rights Agent. . . . . . . . . . . . . . . . . . . . . . . . 36
22. Issuance of New Right Certificates. . . . . . . . . . . . . . . . . . 37
23. Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
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TABLE OF CONTENTS
PAGE
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24. Notice of Proposed Actions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
25. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
26. Supplements and Amendments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
27. Successors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
28. Benefits of this Rights Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
29. Delaware Contract. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
30. Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
31. Descriptive Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
32. Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
EXHIBIT A
EXHIBIT B
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RIGHTS AGREEMENT
This RIGHTS AGREEMENT ("Rights Agreement"), dated as of
[DATE], 1997, between Triad Park, LLC, a Delaware limited liability company
(the "Company"), and [INSERT NAME OF RIGHTS AGENT] (the "Rights Agent").
W I T N E S S E T H:
WHEREAS, the Advisory Board of the Company on [DATE], 1997 (i)
authorized the issuance and declared a distribution of one right (a "Right")
for each Share (as defined herein) of the Company outstanding as of the Close
of Business on [DATE], 1997 (the "Record Date"), each Right representing the
right to purchase one Share of the Company upon the terms and subject to the
conditions hereinafter set forth, and (ii) further authorized the issuance of
one Right with respect to each Share of the Company that shall become
outstanding between the Record Date and the earlier of the Distribution Date
(as defined herein) and the Expiration Date (as defined herein);
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein set forth, the Company and the Rights Agent hereby
agree as follows:
1. Certain Definitions.
For purposes of this Agreement, the following terms shall have
the meanings indicated:
(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, without the prior approval of the Advisory Board,
shall be the Beneficial Owner (as such term is hereinafter defined) of 24% or
more of the outstanding Shares; provided, however, that in no event shall a
Person who or which, together with all Affiliates and Associates of such
Person, is the Beneficial Owner of less than 24% of the Company's outstanding
Shares, become an Acquiring Person solely as a result of a reduction of the
number of outstanding Shares, including repurchases of outstanding Shares by
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the Company, which reduction increases the percentage of outstanding Shares
beneficially owned by such person, provided, however, that any subsequent
direct or indirect acquisition or receipt of Shares by such Person or any
Affiliate or Associate of such Person shall cause such Person to become an
Acquiring Person if, after giving effect to such acquisition or receipt of
Shares, such Person (together with all Affiliates and Associates of such
Person) shall be the Beneficial Owner of 24% or more of the Shares then
outstanding and provided further, that an Acquiring Person shall not include an
Exempt Person (as such term is hereinafter defined).
(b) "Adjustment Shares" shall have the meaning set forth
in Section 11(a)(ii) hereof.
(c) "Advisory Board" shall have the meaning given such
term in the Company's LLC Agreement.
(d) "Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as amended ("Exchange
Act"), as in effect on [DATE], 1997.
(e) A Person shall be deemed the "Beneficial Owner" of
any securities:
(i) which such Person or any of such Person's
Affiliates or Associates beneficially owns, directly or indirectly;
(ii) which such Person or any of such Person's
Affiliates or Associates has (A) the right to acquire (whether such right is
exercisable immediately or only after the passage of time) pursuant to any
agreement, arrangement or understanding, or upon the exercise of conversion
rights, exchange rights, rights (other than these Rights), warrants or options,
or otherwise; provided, however, that a Person shall not be deemed the
"Beneficial Owner" of, or to "beneficially own", 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) the right to vote 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 securities if the
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agreement, arrangement or understanding to vote such security (1) arises solely
from a revocable proxy or consent given in response to a public proxy or
consent solicitation made pursuant to, and in accordance with, the applicable
rules and regulations of the Exchange Act and (2) is not also then reportable
by such Person on Schedule 13D under the Exchange Act (or any comparable or
successor report); or
(iii) which are beneficially owned, directly or
indirectly, by any other Person with which such Person or any of such Person's
Affiliates or Associates has any agreement, arrangement or understanding
(whether or not in writing) for the purpose of acquiring, holding, voting
(except as described in clause (B) of subparagraph (ii) of Section 1(d)) or
disposing of any securities of the Company.
(f) "Business Day" shall mean any day other than a
Saturday, Sunday, or a day on which banking institutions in the State of
California are authorized or obligated by law or executive order to close.
(g) "Close of Business" on any given date shall mean 5:00
p.m., San Francisco time, on such date; provided, however, that if such date is
not a Business Day it shall mean 5:00 p.m., San Francisco time, on the next
succeeding Business Day.
(h) "Common Stock" when used with reference to any Person
which is organized in corporate form shall mean the capital stock or other
equity security with the greatest per share voting power of such Person or, if
such Person is a Subsidiary of or is controlled by another Person, the Person
which ultimately controls such first-mentioned Person. "Common Stock" when
used with reference to any Person which is not organized in corporate form
shall mean units of beneficial interest which shall represent the right to
participate in profits, losses, deductions and credits of such Person and which
shall be entitled to exercise the greatest voting power per unit of such
Person.
(i) "Current Market Price" shall have the meaning set
forth in Section 11(d) hereof.
(j) "Distribution Date" shall have the meaning set forth
in Section 3(a) hereof.
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(k) "Equivalent Securities" shall have the meaning set
forth in Section 11(b) hereof.
(l) "Exchange Act" shall have the meaning set forth in
Section 1(d) hereof.
(m) "Exempt Person" shall mean the Company, any employee
benefit plan or employee equity plan of the Company, or any Person, organized,
appointed, established or holding Shares for or pursuant to the terms of any
such plan.
(n) "Expiration Date" shall have the meaning set forth in
Section 7(a) hereof.
(o) "Final Expiration Date" shall have the meaning set
forth in Section 7(a) hereof.
(p) "LLC Agreement" shall mean the Limited Liability
Company Agreement of Triad Park, LLC, as amended, modified, supplemented or
restated from time to time.
(q) "Manager" shall mean the Person appointed as the
manager of the Company.
(r) "NASDAQ" shall have the meaning set forth in Section
9(b) hereof.
(s) "Person" shall mean any individual, firm, corporation,
partnership, limited liability company or other entity.
(t) "Principal Party" shall have the meaning set forth in
Section 13(b) hereof.
(u) "Purchase Price" shall have the meaning set forth in
Section 4(a) hereof.
(v) "Redemption Price" shall have the meaning set forth
in Section 23(a) hereof.
(w) "Right Certificate" shall have the meaning set forth
in Section 3(a) hereof.
(x) "Section 11(a)(ii) Event" shall mean any event
described in Section 11(a)(ii) (A), (B) or (C) hereof.
(y) "Section 13 Event" shall mean any event described in
clause (x), (y) or (z) of Section 13(a) hereof.
(z) "Securities Act" shall mean the Securities Act of
1933, as amended.
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(aa) "Share" shall mean a right to share in the income,
gains, losses, deductions, credit, or similar items of, and to receive
distributions from, the Company.
(bb) "Share Acquisition Date" shall mean the first date of
public announcement by the Company or an Acquiring Person that an Acquiring
Person has become such or such earlier date as a majority of the members of the
Advisory Board shall become aware of the existence of an Acquiring Person.
(cc) "Share Holder" shall mean a Person who holds one or
more Shares.
(dd) "Subsidiary" of a Person shall mean any corporation
or other entity of which securities or other ownership interests having
ordinary voting power sufficient to elect a majority of the board of directors
or other persons performing similar functions are beneficially owned, directly
or indirectly, by such Person and any corporation or other entity that is
otherwise controlled by such Person.
(ee) "Summary of Rights" shall have the meaning set forth
in Section 3(b) hereof.
(ff) "Trading Day" shall have the meaning set forth in
Section 11(d) hereof.
(gg) "Triggering Event" shall mean any event described in
Section 11(a)(ii)(A), (B), or (C) or Section 13 hereof.
(hh) "Voting Power" shall mean the voting power of all
securities of the Company then outstanding and generally entitled to vote for
the election of members of the Advisory Board.
Any determination required by the definitions contained in
this Section 1 shall be made by the Advisory Board in its good faith judgment,
which determination shall be binding on the Rights Agent and the holders of the
Rights.
2. Appointment of Rights Agent.
The Company hereby appoints the Rights Agent to act as agent
for the Company in accordance with the terms and conditions hereof, and the
Rights Agent hereby accepts such
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appointment. The Company may from time to time appoint such Co-Rights Agents
as it may deem necessary or desirable.
3. Issuance of Right Certificates.
(a) Until the earlier of (i) the Share Acquisition Date
or (ii) the tenth day (or such later date as may be determined by action of the
Advisory Board prior to such time as any Person becomes an Acquiring Person)
after the date of the commencement by any Person (other than an Exempt Person)
of, or of the first public announcement of the intent of any Person (other than
an Exempt Person) to commence (which intention to commence remains in effect
for five business days after such announcement), a tender or exchange offer
upon the successful consummation of which such Person, together with its
Affiliates and Associates, would be the Beneficial Owner of 24% or more of the
outstanding Shares (irrespective of whether any Shares are actually purchased
pursuant to any such offer) (including any such date which is after the date of
this Agreement and prior to the issuance of the Rights; the earlier of such
dates being herein referred to as the "Distribution Date"), (x) the Rights will
be evidenced (subject to the provisions of Section 3(c) hereof) by the
certificates for the Shares registered in the names of the holders of the
Shares (which certificates shall be deemed also to be certificates for Rights)
and not by separate Right certificates, and (y) each Right will be transferable
only in connection with the transfer of the underlying Shares. As soon as
practicable after the Distribution Date, the Rights Agent will mail, by
first-class, postage prepaid mail, to each record holder of the Shares, as of
the Close of Business on the Distribution Date, as shown by the records of the
Company, at the address of such holder shown on such records, a Right
certificate in substantially the form of Exhibit A hereto ("Right Certificate")
evidencing one Right for each Share so held, subject to adjustment as provided
herein. As of and after the Distribution Date the Rights will be evidenced
solely by such Right Certificates.
(b) Until the Distribution Date (or, if earlier, the
"Expiration Date" or the "Final Expiration Date"), the surrender for transfer
of any certificate representing Shares, with or
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without a copy of the Summary of Rights attached thereto, shall also constitute
the surrender for transfer of the Rights associated with the Shares represented
thereby.
(c) Rights shall be issued in respect of all Shares
issued after the Record Date but prior to the earlier of the Distribution Date
or the Expiration Date. Certificates representing such Shares (and
certificates representing Shares which are transferred after the Record Date
but prior to the earlier of the Distribution Date or the Expiration Date) shall
also be deemed to be certificates for Rights and shall bear the following
legend:
This certificate also evidences and entitles the holder hereof
to certain Rights as set forth in the Rights Agreement between
Triad Park, LLC and [INSERT NAME OF RIGHTS AGENT], as Rights
Agent, dated as of [DATE], 1997 (as amended from time to time
in accordance with its terms, the "Rights Agreement"), the
terms of which are incorporated herein by reference and a copy
of which is on file at the principal executive office of Triad
Park, LLC. 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. Triad Park, LLC will mail to the holder of this
certificate a copy of the Rights Agreement without charge
within five days after receipt by it of a written request
therefor. Under certain circumstances as provided in the
Rights Agreement, Rights issued to or beneficially owned by
Acquiring Persons or their Associates or Affiliates (as
defined in the Rights Agreement) or any subsequent holder of
such Rights may be limited as provided in Section 11(a)(ii) of
the Rights Agreement.
With respect to such certificates containing the foregoing legend, the Rights
associated with the Shares shall, until the Distribution Date, be evidenced by
such certificates alone, and the surrender for transfer of any such certificate
shall also constitute the surrender for transfer of the Rights associated with
the Shares represented thereby.
4. Form of Right Certificates.
(a) The Right Certificates (and the forms of election to
purchase shares and of assignment to be printed on the reverse thereof), when,
as and if issued, shall 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
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appropriate and as are not inconsistent with the provisions of this Rights
Agreement, or as may be required to comply with any 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 Sections 11 and 22 hereof, the Right
Certificates evidencing the Rights issued on [DATE], 1997, whenever issued,
shall be dated as of [DATE], 1997 and the Right Certificates evidencing Rights
to holders of record of Shares issued after [DATE], 1997 shall be dated as of
[DATE], 1997 but also be dated to reflect the date of issuance of such Right
Certificate and on their face Right Certificates shall entitle the holders
thereof to purchase one Share, or other securities or property as provided
herein, as the same may from time to time be adjusted as provided herein, at
the price of $0.63 set forth therein, as the same may from time to time be
adjusted as provided herein (the "Purchase Price").
(b) Notwithstanding any other provision of this Rights
Agreement, any Right Certificate that represents Rights that are or were at any
time on or after the earlier of the Share Acquisition Date or the Distribution
Date beneficially owned by an Acquiring Person or any Affiliate or Associate
thereof (or any transferee of such Rights) shall have impressed on, printed on,
written on or otherwise affixed to it (if the Company or the Rights Agent has
knowledge that such Person is an Acquiring Person or an Associate or Affiliate
thereof or transferee of such Persons or a nominee of any of the foregoing) the
following legend:
The beneficial owner of the Rights represented by this Right
Certificate is an Acquiring Person or an Affiliate or
Associate (as defined in the Rights Agreement) of an Acquiring
Person or a subsequent holder of such Right Certificates
beneficially owned by such Persons. Accordingly, under
certain circumstances as provided in the Rights Agreement,
this Right Certificate and the Rights represented hereby may
be limited as provided in Section 11(a)(ii) of the Rights
Agreement.
5. Countersignature and Registration.
(a) The Right Certificates may be executed on behalf of
the Company by its President or any Vice President, either manually or by
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facsimile signature, which shall be attested by the Secretary or an Assistant
Secretary of the Company, either manually or by facsimile signature. In the
alternative, the Right Certificates may be executed in the same manner by the
corresponding officers of the Manager. The Right Certificates shall be
manually countersigned by the Rights Agent and shall not be valid for any
purpose unless so countersigned. In case any officer of the Company who 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, issued and delivered with the same force and effect as though
the person who signed such Right Certificates had not ceased to be such officer
of the Company; and any Right Certificate may be signed on behalf of the
Company by any person who, at the actual date of the execution of such Right
Certificate, shall be a proper officer of the Company to sign such Right
Certificate, although at the date of the execution of this 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 designated for such
purposes, 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 date of each of the Right Certificates,
and the certificate numbers for each of the Right Certificates.
6. Transfer, Split Up, Combination and Exchange of Right
Certificates; Mutilated, Destroyed, Lost or Stolen Right
Certificates.
(a) Subject to the provisions of Section 14(b) hereof, at
any time after the Close of Business on the Distribution Date and at or prior
to the Close of Business on the earlier of the Expiration Date or the Final
Expiration Date, any Right Certificate or Certificates may be (i) transferred
or (ii) split up, combined or exchanged for another Right Certificate or Right
Certificates, entitling the registered holder to purchase a like number of
Shares as the Right Certificate or Right Certificates surrendered then entitled
such holder to purchase. Any registered holder desiring to transfer any Right
Certificate shall surrender the Right Certificate at
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the office of the Rights Agent designated for such purposes with the form of
assignment on the reverse side thereof duly endorsed (or enclose with such
Right Certificate a written instrument of transfer in form satisfactory to the
Company and the Rights Agent), duly executed by the registered holder thereof
or his attorney duly authorized in writing, and with such signature duly
guaranteed. Any registered holder desiring to split up, combine or exchange
any Right Certificate shall make such request in writing delivered to the
Rights Agent, and shall surrender the Right Certificate or Right Certificates
to be split up, combined or exchanged at the principal office of the Rights
Agent. Thereupon the Rights Agent shall countersign (by manual signature) and
deliver to the person entitled thereto a Right Certificate or Right
Certificates, as the case may be, as so requested. The Company may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any transfer, split up, combination or exchange of
Right Certificates.
(b) Upon receipt by the Company and the Rights Agent of
evidence reasonably satisfactory to them of the loss, theft, destruction or
mutilation of a Right Certificate, and, in case of loss, theft or destruction,
of indemnity or security reasonably satisfactory to them, and, if requested by
the Company, reimbursement to the Company 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 delivery to the registered
owner in lieu of the Right Certificate so lost, stolen, destroyed or mutilated.
7. Exercise of Rights; Purchase Price; Expiration Date of Rights.
(a) The Rights shall become exercisable, and may be
exercised to purchase Shares, except as otherwise provided herein, in whole or
in part at any time after the Distribution Date upon surrender of the Right
Certificate, with the form of election to purchase on the reverse side thereof
duly executed (with such signature duly guaranteed), to the Rights Agent at the
principal office of the Rights Agent in [INSERT CITY AND STATE] together with
payment of the Purchase Price with respect to each Right exercised, subject to
adjustment as hereinafter
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provided, at or prior to the Close of Business on the earlier of (i) [DATE],
2007 ("Final Expiration Date"), or (ii) the time at which the Rights are
redeemed as provided in Section 23 hereof (such date being herein referred to
as the "Expiration Date").
(b) The Purchase Price shall initially be $0.63 for each
Share issued pursuant to the exercise of a Right. The Purchase Price and the
number of Shares or other securities or consideration to be acquired upon
exercise of a Right shall be subject to adjustment from time to time as
provided in Sections 11 and 13 hereof. The Purchase Price shall be payable in
lawful money of the United States of America, in accordance with Section 7(c)
hereof.
(c) Except as provided in Section (d) hereof, upon
receipt of a Right Certificate with the form of election to purchase duly
executed, accompanied by payment of the Purchase Price or so much thereof as is
necessary for the Shares to be purchased and an amount equal to any applicable
transfer tax, by cash, certified check or official bank check payable to the
order of the Company or the Rights Agent, the Rights Agent shall thereupon
promptly (i) requisition from any transfer agent of the Shares certificates for
the number of Shares so elected to be purchased and the Company will comply and
hereby authorizes and directs such transfer agent to comply with all such
requests, (ii) requisition from the Company the amount of cash to be paid in
lieu of issuance of fractional Shares in accordance with Section 14(b) hereof,
and (iii) promptly after receipt of such Share certificates 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, when appropriate, after receipt promptly deliver such cash to or
upon the order of the registered holder of such Right Certificate; provided,
however, that in the case of a purchase of securities, other than Shares,
pursuant to Section 13 hereof, the Rights Agent shall promptly take the
appropriate actions corresponding to the foregoing clauses (i) through (iii).
In the event that the Company is obligated to issue other securities of the
Company, pay cash and/or distribute other property 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.
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(d) In case the registered holder of any Right
Certificate shall exercise less than all the Rights evidenced thereby, a new
Right Certificate evidencing Rights equivalent to the Rights remaining
unexercised shall be issued by the Rights Agent to the registered holder of
such Right Certificate or to his duly authorized assigns, subject to the
provisions of Section 14 hereof.
(e) Notwithstanding anything in this Agreement to the
contrary, neither the Rights Agent nor the Company shall be obligated to
undertake any action with respect to a registered holder upon the occurrence of
any purported exercise as set forth in this Section 7 unless such registered
holder shall have (i) completed and signed the certificate contained in the
form of election to purchase set forth on the reverse side of the Rights
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 Rights Agent or the Company shall
reasonably request.
8. Cancellation and Destruction of Right Certificates.
All Right Certificates surrendered for the purpose of
exercise, transfer, split up, combination or exchange shall, if surrendered to
the Company or to any of its agents, be delivered to the Rights Agent for
cancellation or in canceled form, or, if surrendered to the Rights Agent, shall
be canceled by it, and no Right Certificates shall be issued in lieu thereof
except as expressly permitted by any of the any of the provisions of this
Rights Agreement. The Company shall deliver to the Rights Agent for
cancellation and retirement, and the Rights Agent shall so cancel and retire,
any Right Certificate purchased or acquired by the Company otherwise than upon
the exercise thereof. The Rights Agent shall deliver all canceled Right
Certificates to the Company, or shall, at the written request of the Company,
destroy such canceled Right Certificates, and in such case shall deliver a
certificate of destruction thereof to the Company.
9. Reservation and Availability of Shares.
(a) [INTENTIONALLY OMITTED]
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(b) The Company shall (i) use its best efforts to cause,
from and after such time as the Rights become exercisable, the Rights and all
Shares issued or reserved for issuance upon exercise thereof to be reported by
the National Association of Securities Dealers, Inc. Automated Quotations
System ("NASDAQ") or such other system then in use, and if the Shares shall
become listed on any national securities exchange, to cause, from and after
such time as the Rights become exercisable, the Rights and all Shares issued or
reserved for issuance upon exercise thereof to be listed on such exchange upon
official notice of issuance upon such exercise and (ii) if then necessary to
permit the offer and issuance of such Shares, register and qualify such Shares
under the Securities Act and any applicable state securities or "blue sky" laws
(to the extent exemption therefrom are not available), cause such registration
statement and qualifications to become effective as soon as possible after such
filing and keep such registration and qualifications effective until the
earlier of the Expiration Date or the Final Expiration Date of the Rights. The
Company may temporarily suspend, for a period of time not to exceed ninety (90)
days, the exercisability of the Rights in order to prepare and file a
registration statement under the Securities Act and permit it to become
effective. Upon any such suspension, the Company shall 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 and until
a registration statement under the Securities Act (if required) shall have been
declared effective.
(c) The Company covenants and agrees that it will take
all such action as may be necessary to insure that all Shares delivered upon
exercise of Rights shall, at the time of delivery of the certificates for such
Shares (subject to payment of the Purchase Price in respect thereof), be duly
and validly authorized and issued and fully paid and non-assessable Shares in
accordance with applicable law.
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(d) The Company further covenants and agrees that it will
pay when due and payable any and all federal and state transfer taxes and
charges which may be payable in respect of the issuance or delivery of the
Right Certificates or of any Shares 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 certificates for Shares upon exercise of
Rights in a name other than that of, the registered holder of the Right
Certificate, and the Company shall not be required to issue or deliver a Right
Certificate or certificate for Shares to a person other than such registered
holder until any 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.
10. Record Date.
Each person in whose name any certificate for Shares is issued
upon the exercise of Rights shall for all purposes be deemed to have become the
holder of record of the Shares represented thereby on, and such certificate
shall be dated, the date upon which the Right Certificate evidencing such
rights was duly surrendered and payment of the Purchase Price (and any
applicable transfer taxes) was made.
11. Adjustments to Number and Kind of Shares, Number of Rights or
Purchase Price.
The number and kind of Shares subject to purchase upon the
exercise of each Right, the number of Rights outstanding and the Purchase Price
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 Rights Agreement (A) declare or pay any dividend on Shares
payable in Shares, (B) subdivide or split the outstanding Shares into a greater
number of Shares, (C) combine or consolidate the outstanding Shares into a
small number of Shares or effect a reverse split of the outstanding Shares, or
(D) issue any equity securities in a reclassification of the Shares (including
any such
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reclassification in connection with a consolidation or merger in which the
Company is the continuing or surviving entity), except as otherwise provided in
this Section 11(a), the Purchase Price in effect at the time of the record date
for such dividend or on the effective date of such subdivision, combination or
reclassification, and the number and kind of Shares or equity securities, 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 or equity securities, as the case may be, which, if
such Right had been exercised immediately prior to such date, the holder
thereof 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).
(ii) In the event
(A) any Acquiring Person or any Associate or
Affiliate of and any Acquiring Person, at any time after the date of
this Agreement, directly or indirectly, (1) shall consolidate with or
merge with and into the Company or otherwise combine with the Company
and the Company shall be the continuing or surviving entity of such
consolidation, merger or combination and the Shares shall remain
outstanding and no Shares shall be changed into or exchanged for
equity securities of the Company or of any other Person or cash or any
other property, or (2) shall, in one or more transactions, other than
in connection with the exercise of a Right or Rights and other than in
connection with the exercise or conversion of securities exercisable
for or convertible into securities of the Company, transfer any assets
or property to the Company in exchange (in whole or in part) for any
shares of any class of equity securities of the Company or any
securities exercisable for or convertible into shares of any class of
equity securities of the Company, or otherwise obtain from the
Company, with or without consideration, any
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additional shares of any class of equity securities of the Company or
any securities exercisable for or convertible into shares of any class
of equity securities of the Company (other than as part of a pro rata
offer or distribution by the Company to all holders of such shares),
or (3) shall sell, purchase, lease, exchange, mortgage, pledge,
transfer or otherwise acquire (other than as a pro rata dividend) or
dispose, to, from or with, as the case may be, in one transaction or a
series of transactions, the Company, assets (including securities) on
terms and conditions less favorable to the Company than the Company
would be able to obtain in arm's-length negotiation with an
unaffiliated third party, or (4) shall receive any compensation from
the Company for services other than compensation for employment as a
regular or part-time employee, or fees for serving as a director, at
rates in accordance with the Company's past practices, or (5) shall
receive the benefit, directly or indirectly (except proportionately as
a Share Holder), of any loans, advances, guarantees, pledges or other
financial assistance or any tax credits or tax advantage provided by
the Company or (6) shall engage in any transaction with the Company
involving the sale, license, transfer or grant of any right in, or
disclosure of, any patents, copyrights, trade secrets, trademarks or
know how (or any other intellectual or industrial property rights
recognized under any country's intellectual property laws) which the
Company owns or has the right to use on terms and conditions not
approved by the Advisory Board; or
(B) any Person, alone or together with its
Affiliates and Associates, shall become an Acquiring Person other than
pursuant to (1) any transaction set forth in Section 13(a) hereof, or
(2) a tender or exchange offer for all outstanding Shares at a price
and on terms determined by the Advisory Board to be both adequate and
otherwise in the best interests of the Company and its Share Holders
other than the Acquiring Person or an Affiliate or Associate thereof
on whose behalf the offer is being made (a "Permitted Offer"); or
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(C) during such time as there in an Acquiring
Person, there shall be any reclassification of securities (including
any reverse split), or any recapitalization of the Company, or any
other transaction or series of transactions involving the Company
(whether or not with or into or otherwise involving an Acquiring
Person or any Affiliate or Associate of such 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 securities exercisable for or
convertible into equity securities of the Company, which is directly
or indirectly beneficially owned by any Acquiring Person or any
Affiliate or Associate of any Acquiring Person,
then except as otherwise provided in this Section 11, each holder of a Right
shall thereafter have a right to receive for each Right, upon exercise thereof
in accordance with the terms of this Rights Agreement and payment of the
Purchase Price, such number of Shares as shall equal the result obtained by (x)
multiplying the then current Purchase Price by the then number of Shares for
which a Right was exercisable immediately prior to the first occurrence of a
Section 11(a)(ii) Event, and (y) dividing that product (such product, following
such first occurrence, shall be referred to as the "Purchase Price" with
respect to each Right for all purposes of this Agreement) by 50% of the Current
Market Price per Share on the date of such first occurrence (such number of
Shares is herein called the "Adjustment Shares"); provided that the Purchase
Price and the number of Adjustment Shares shall be further adjusted as provided
in this Agreement to reflect any events occurring after the date of such first
occurrence; and provided further that if the transaction that would otherwise
give rise to the foregoing adjustment is also subject to the provisions of
Section 13 hereof, then only the provisions of Section 13 hereof shall apply
and no adjustment shall be made pursuant to this Section 11(a)(i).
Notwithstanding the foregoing, the adjustment pursuant to this Section
11(a)(ii) shall not occur with respect to any Rights that are or were at any
time on or after the earlier of the Share Acquisition Date or the Distribution
Date beneficially owned by the Acquiring Person or any Associate or Affiliate
of the Acquiring Person which is or was involved in or which caused or
facilitated, directly or indirectly, the event
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or transaction or transactions listed above in this Section 11(a)(ii) in
respect of which such adjustment occurs (or any subsequent transferee of such
Rights), and upon exercise of such Rights, the holders thereof shall continue
to receive upon exercise the number of Shares otherwise provided for herein
without giving effect to such adjustment.
(b) In case the Company shall fix a record date for the
issuance of rights (other than the Rights), options or warrants to all holders
of Shares entitling them to subscribe for or purchase (for a period expiring
within forty-five calendar days after such record date) Shares, shares having
the same rights, privileges and preferences as the Shares ("equivalent
securities") or securities convertible into Shares or equivalent securities at
a price per Share or equivalent securities (or having conversion price per
Share, if a security convertible into Shares or equivalent securities) less
than the Current Market Price per Share 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 outstanding on such record
date, plus the number of Shares which the aggregate offering price of the total
number of Shares and/or equivalent securities (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 outstanding on such record date, plus the number of additional Shares
and/or equivalent securities 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 non-cash consideration shall be as determined in good faith by the
Advisory Board, whose determination shall be described in a statement filed
with the Rights Agent. 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.
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(c) In case the Company shall fix a record date for a
distribution to all holders of Shares (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, assets (other than
a dividend payable in Shares, but including any dividend payable in securities
other than Shares) or subscription rights or warrants (excluding those referred
to in Section 11(b) hereof), the Purchase Price to be in effect after such
record date shall be determined by multiplying the Purchase Price in effect
immediately prior to such record date by a fraction, the numerator of which
shall be the Current Market Price per Share on such record date, less the fair
market value (as determined in good faith by the Advisory Board, 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
and the denominator of which shall be such Current Market Price per Share. 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) For the purpose of any computation hereunder, the
"Current Market Price" per Share on any date shall be deemed to be the average
of the daily closing prices per Share for the thirty consecutive Trading Days
(as such term is hereinafter defined) immediately prior to such date; provided,
however, that in the event that the Current Market Price per Share is
determined during a period following the announcement of (i) any dividend or
distribution on the Shares (other than the Rights), (ii) any subdivision,
combination or reclassification of the Shares, and prior to the expiration of
the requisite thirty 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 occurs, then, and in each such
case, the Current Market Price shall be properly adjusted to take into account
ex-dividend trading. The closing price for each day shall be the last sale
price, regular way, or, in case no such sale takes place on such day, the
average of the closing bid and asked prices, regular way, in either case as
reported in the
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principal consolidated transaction reporting system with respect to securities
listed or admitted to trading on the New York Stock Exchange, or, if the Shares
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 are listed or admitted to trading or, if the Shares are not
listed or admitted to trading on any national securities exchange, the last
quoted sale 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 Shares 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 Shares selected
by the Advisory Board. If on any such date no market maker is making a market
in the Shares, the fair value of such shares on such date as determined in good
faith by the Advisory Board shall be used. The term "Trading Day" shall mean a
day on which the principal national securities exchange on which the Shares are
listed or admitted to trading is open for the transaction of business or, if
the Shares are not listed or admitted to trading on any national securities
exchange, a Business Day. If the Shares are 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 Advisory Board, whose determination shall be
described in a statement filed with the Rights Agent and shall be conclusive
for all purposes.
(e) Anything herein to the contrary notwithstanding, no
adjustment in the Purchase Price shall be required unless such adjustment would
require an increase or decrease of at least one percent in the Purchase Price;
provided, however, that any adjustments which by reason of this Section 11(e)
are not required to be made shall be carried forward and taken into account in
any subsequent adjustment. All calculations under this Section 11 shall be
made to the nearest cent or to the nearest ten-thousandth of a Share, as the
case may be. Notwithstanding the first sentence of this Section 11(e), any
adjustment required by this Section 11 shall be made no later than the earlier
of (i) three years from the date of the transaction which mandates such
adjustment, or (ii) the Expiration Date.
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(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 equity securities
other than Shares, 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 time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to the Shares contained in Section
11(a), (b), (c), (e), (g), (h), (i), (j), (k) and (m) hereof, and the
provisions of Sections 7, 9, 10, 13 and 14 hereof with respect to the Shares
shall apply on like terms to any such other shares.
(g) All Rights originally issued by the Company
subsequent to any adjustment made to the Purchase Price hereunder shall
evidence the right to purchase, at the adjusted Purchase Price, the number of
Shares 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
Shares (calculated to the nearest ten-thousandth) obtained by (i) multiplying
(x) the number of Shares 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 or any adjustment to the number of Shares for
which a Right may be exercised, to adjust the number of Rights, in lieu of any
adjustment in the number of Shares 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 Shares for which a Right was exercisable
immediately prior to such adjustment. Each Right held of record prior to such
adjustment of the
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number of Rights shall become that number of Rights (calculated to the nearest
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 days later than the date
of the public announcement. If Right Certificates have been issued, upon each
adjustment of the number of Rights pursuant to this Section 11(i), the Company
shall, as promptly as practicable, cause to be distributed to holders of record
of 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 Shares issuable upon the exercise of the
Rights, the Right Certificates theretofore and thereafter issued may continue
to express the Purchase Price per share and the number of shares which were
expressed in the initial Right Certificates issued hereunder.
(k) [INTENTIONALLY OMITTED]
(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
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after such record date the Shares and other securities of the Company, if any,
issuable upon such exercise over and above the Shares and other securities of
the Company, if any, issuable upon such exercise on the basis of the Purchase
Price in effect prior to such adjustment; provided, however, that the Company
shall deliver to such holder a due xxxx or other appropriate instrument
evidencing such holder's right to receive such additional Shares and other
securities upon the occurrence of the event requiring such adjustment.
(m) Anything in this Section 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 to the extent that in their good faith judgment the Advisory
Board shall determine to be advisable in order that any (i) consolidation or
subdivision of the Shares, (ii) issuance for cash of any Shares at less than
the current market price, (iii) issuance for cash of Shares or securities which
by their terms are convertible into or exchangeable for Shares, (iv) share
dividends or (v) issuance of rights, options or warrants referred to in this
Section 11, hereafter made by the company to holders of its Shares shall not be
taxable to such holders.
(n) The Company covenants and agrees that it shall not,
at any time after the Distribution Date, (i) consolidate with any other Person,
or (ii) merge with or into any other Person, if (x) at the time of or
immediately after such consolidation or merger 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 or merger, the shareholders of the Person who
constitutes, or would constitute, the "Principal Party" for purposes of Section
13(a) hereof shall have received a distribution of Rights previously owned by
such Person or any of its Affiliates and Associates.
(o) The Company covenants and agrees that, after the
Distribution Date, it will not, except as permitted by Section 23 or Section 26
hereof, take any action if at the time
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such action is taken it is reasonably foreseeable that such action will
diminish substantially or eliminate the benefits intended to be afforded by the
Rights.
12. Certification of Adjustments.
Whenever an adjustment is made as provided in Sections 11 and
13 hereof, the Company shall (a) promptly prepare a certificate setting forth
such adjustment and a brief statement of the facts giving rise to such
adjustment, (b) promptly file with the Rights Agent and with each transfer
agent for the Shares a copy of such certificate and (c) mail a brief summary
thereof to each holder of a Right Certificate (or, if prior to the Distribution
Date, to each holder of a certificate representing Shares) in accordance with
Section 25 hereof. Notwithstanding the foregoing sentence, the failure of the
Company to give such notice shall not affect the validity of or the force or
effect of or the requirement for such adjustment. The Rights Agent shall be
fully protected in relying on any certificate prepared by the Company pursuant
to Sections 11 and 13 and on any adjustment therein contained. Any adjustment
to be made pursuant to Sections 11 and 13 of this Rights Agreement shall be
effective as of the date of the event giving rise to such adjustment.
13. Consolidation, Merger or Sale or Transfer of Assets or Earning
Power.
(a) In the event that, at any time on or after the
Distribution Date, directly or indirectly, (x) the Company shall consolidate
with, or merge with and into, any other Person or Persons and the Company shall
not be the surviving or continuing corporation of such consolidation or merger,
or (y) any Person or Persons shall consolidate with, or merge with and 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 shall be changed into or
exchanged for stock or other securities of any other Person or of the Company
or cash or any other property (other than in the case of the transactions
described in subparagraphs (x) or (y), a merger or consolidation which would
result in all of the Voting Power represented by the securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into
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securities of the surviving entity) all of the Voting Power represented by the
securities of the Company or such surviving entity outstanding immediately
after such merger or consolidation and the holders of such securities not
having changed as a result of such transactions), then, on the first occurrence
of any such event, proper provision shall be made so that (i) each holder of
record of a Right shall thereafter have the right to receive, upon the exercise
thereof and payment of the Purchase Price in accordance with the terms of this
Rights Agreement, such number of shares of validly issued, fully paid and
nonassessable Common Stock of the Principal Party (as defined herein) not
subject to any liens, encumbrances, rights of first refusal or other adverse
claims, as shall be equal to the result obtained by (1) multiplying the then
current Purchase Price by the number of Shares for which a Right was
exercisable immediately prior to the first occurrence of a Section 13 Event
(or, if a Section 11(a)(ii) Event hereof has occurred prior to the first
occurrence of a Section 13 Event, multiplying the Purchase Price in effect
immediately prior to the first occurrence of a Section 11(a)(ii) Event by the
number of Shares for which a Right was exercisable immediately prior to such
first occurrence of a Section 11(a)(ii) Event) and (2) dividing that product
(such product, following the first occurrence of a Section 13 Event, shall be
referred to as the "Purchase Price" for all purposes of this Agreement) by 50%
of the Current Market Price (determined as provided in Section 11(d) hereof
with respect to the Shares) per share of the Common Stock of such Principal
Party on the date of consummation of such Section 13 Event (or the fair market
value on such date of other securities or property of the Principal Party, as
provided for herein); provided that the Purchase Price and the number of shares
of Common Stock of such Principal Party issuable upon exercise of each Right
shall be further adjusted as provided in this Agreement to reflect any events
occurring after the date of the first occurrence of a Section 13 Event; (ii)
such Principal Party shall thereafter be liable for, and shall assume, by
virtue of such Section 13 Event, all the obligations and duties of the Company
pursuant to this Rights Agreement; (iii) the term "Company" for all purposes of
this Rights Agreement shall thereafter be deemed to refer to such Principal
Party, it being specifically intended that the provisions of Section 11 hereof
shall only apply to such Principal Party
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following the first occurrence of a Section 13 Event; and (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; provided, however, that, upon the subsequent occurrence
of any merger, consolidation, sale of all or substantially all assets,
recapitalization, reclassification of shares, reorganization or other
extraordinary transaction in respect of such Principal Party, each holder of a
Right shall thereupon be entitled to receive, upon exercise of a Right and
payment of the Purchase Price, such cash, shares, rights, warrants and other
property which such holder would have been entitled to receive had he, at the
time of such transaction, owned the shares of Common Stock of the Principal
Party purchasable upon the exercise of a Right, and such Principal Party shall
take such steps (including, but not limited to, reservation of shares of stock)
as may be necessary to permit the subsequent exercise of the Rights in
accordance with the terms hereof for such cash, shares, rights, warrants and
other property.
(b) "Principal Party" shall mean
(i) the Person that is the issuer of the securities
into which Shares are converted in such merger or consolidation, or,
if there is more than one such issuer, the issuer of Common Stock of
which has the greatest market value or (ii) if no securities are so
issued, (A) the Person that is the other party to the merger or
consolidation and that survives said merger or consolidation, or, if
there is more than one such Person, the Person the Common Stock of
which has the greatest market value or (B) if the Person that is the
other party to the merger or consolidation does not survive the merger
or consolidation, the Person that does survive the merger or
consolidation (including the Company if it survives);
provided, however, that in any such case described in the foregoing (A) or (B),
if the Common Stock of such Person is not at such time and has not been
continuously over the preceding 12-
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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, the term "Principal Party" shall refer to such
other Person, or if such Person is a Subsidiary, directly or indirectly, of
more than one Person, the Common Stock of all of which are and have been so
registered, the term "Principal Party" shall refer to whichever of such Persons
is the issuer of the Common Stock having the greatest market value of shares
outstanding.
(c) The Company shall not consummate any consolidation,
merger, sale or transfer referred to in Section 13(a) unless prior thereto the
Company and the Principal Party involved therein shall have executed and
delivered to the Rights Agent an agreement confirming that the requirements of
Sections 13(a) and (b) hereof shall promptly be performed in accordance with
their terms and that such consolidation, merger, sale or transfer of assets
shall not result in a default by the Principal Party under this Rights
Agreement as the same shall have been assumed by the Principal Party pursuant
to Sections 13(a) and (b) hereof and further providing that, as soon as
practicable after executing such agreement pursuant to this Section 13, the
Principal Party at its own expense shall:
(i) prepare and file a registration statement
under the Securities Act, if necessary, with respect to the Rights and
the Securities purchasable upon exercise of the Rights on an
appropriate form, use its best efforts to cause such registration
statement to become effective as soon as practicable after such filing
and use its best efforts to cause such registration statement to
remain effective (with a prospectus at all times meeting the
requirements of the Act) until the date of expiration of the Rights,
and similarly comply with applicable state securities laws;
(ii) use its best efforts, if the Common Stock of
the Principal Party shall become listed on a national securities
exchange, to list (or continue the listing of) the Rights and the
securities purchasable upon exercise of the Rights on such securities
exchange and, if the Common Stock of the Principal Party shall not be
listed on a national
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securities exchange, to cause the Rights and the securities
purchasable upon exercise of the Rights to be reported by NASDAQ or
such other system in use;
(iii) deliver to holders of the Rights historical
financial statements for the Principal Party which comply in all
respects with the requirements for registration on Form 10 (or any
successor form) under the Exchange Act; and
(iv) obtain waivers of any rights of first refusal
or preemptive rights in respect of the shares of Common Stock of the
Principal Party subject to purchase upon exercise of outstanding
Rights.
In the event that any of the transactions described in Section 13(a) hereof
shall occur at any time after the occurrence of a transaction described in
Section 11(a)(ii) hereof, the Rights which have not theretofore been exercised
shall thereafter be exercisable in the manner described in Section 13(a). The
provisions of this Section 13 shall similarly apply to all successive Section
13 Events.
(d) Furthermore, in case the Principal Party which is to
be a party to a transaction referred to in this Section 13 has a provision in
any of its authorized securities or in its Certificate of Incorporation or
By-laws or other instrument governing its corporate affairs, which provision
would have the effect of (i) causing such Principal Party to issue, in
connection with, or as a consequence of, the consummation of a transaction
referred to in this Section 13, shares of Common Stock of such Principal Party
at less than the then Current Market Price per share (determined pursuant to
Section 11(d) hereof) or securities exercisable for, or convertible into,
Common Stock of such Principal Party at less than such then current market
price (other than to holders of Rights pursuant to this Section 13) or (ii)
providing for any special payment, tax or similar provisions in connection with
the issuance of the Common Stock of such Principal Party pursuant to the
provisions of Section 13; then, in such event, the Company hereby agrees with
each holder of Rights that it shall not consummate any such transaction unless
prior thereto the Company and such Principal Party shall have executed and
delivered to the Rights Agent a supplemental agreement providing that the
provision in question of such Principal Party shall
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have been cancelled, waived or amended, or that the authorized securities shall
be redeemed, so that the applicable provision will have no effect in connection
with, or as a consequence of, the consummation of the proposed transaction.
(e) Notwithstanding anything in this Agreement to the
contrary, Section 13 shall not be applicable to a transaction described in
subparagraphs (x) or (y) of Section 13(a) if (i) such transaction is
consummated with a Person or Persons (or a wholly owned subsidiary of any such
Person) who acquired Shares pursuant to a Permitted Offer, (ii) the price per
Share offered in such transaction is not less than the price per Share paid to
all holders of Shares whose Shares were purchased pursuant to such Permitted
Offer and (iii) the form of consideration being offered to the remaining
holders of Shares pursuant to such transaction is the same as the form of
consideration paid pursuant to such Permitted Offer. Upon consummation of any
such transaction contemplated by this subsection (e), all Rights hereunder
shall expire.
14. Fractional Rights and Fractional Shares.
(a) The Company shall not be required to issue fractions
of Rights or to distribute Right Certificates which evidence fractional Rights.
In lieu of such fractional Rights, there shall be paid to the holders of record
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 then
current market value of a whole Right. For the purposes of this Section 14(a),
the then current market value of a Right shall be determined in the same manner
as the Current Market Price of a Share shall be determined pursuant to Section
11(d) hereof.
(b) The Company shall not be required to issue fractions
of Shares upon exercise of the Rights or to distribute certificates which
evidence fractional Shares. In lieu of issuing fractions of Shares, there
shall be paid to the holders of record of Right Certificates at the time such
Right Certificates are exercised as herein provided an amount in cash equal to
the same fraction of the then current market value of a Share. For purposes of
this Section 14(b), the then current market value of a Share shall be the
Current Market Price thereof as determined pursuant to Section 11(d) hereof.
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(c) The holder of a Right by the acceptance of a Right
expressly waives his right to receive any fractional Right or any fractional
Shares upon exercise of a Right.
15. Rights of Action.
All rights of action in respect of this Agreement are vested
in the respective holders of record of the Right Certificates (and, prior to
the Distribution Date, the holders of record of Shares); and any holder of
record of any Right Certificate (or, prior to the Distribution Date, of the
Shares), without the consent of the Rights Agent or of the holder of any other
Right Certificate (or, prior to the Distribution Date, of the Shares), may, in
his own behalf and for his own benefit, enforce, and may institute and maintain
any suit, action or proceeding against the Company or any other Person to
enforce, or otherwise act in respect of, his right to exercise the Rights
evidenced by such Right Certificate in the manner provided in such Right
Certificates 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, accordingly, that they will be entitled to
specific performance of the obligations under, and injunctive relief against
actual or threatened violations of, the obligations of any Person subject to
this Agreement. Holders of Rights shall be entitled to recover the reasonable
costs and expenses, including attorneys' fees, incurred by them in any action
to enforce the provisions of this Agreement.
16. Agreement of Right Holders.
Every holder of a Right by accepting the same consents and
agrees with the Company and the Rights Agent and with every other holder of a
Right that:
(a) prior to the Distribution Date, the Rights will not
be evidenced by a Right Certificate and will be transferable only in connection
with the transfer of Shares;
(b) after the Distribution Date, the Right Certificates
will be transferable only on the registry books of the Rights Agent if
surrendered at the principal office of the Rights Agent, duly endorsed or
accompanied by a proper instrument of transfer;
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(c) the Company and the Rights Agent may deem and treat
the person in whose name the Right Certificate (or, prior to the Distribution
Date, the associated Shares) is registered as the absolute owner thereof and of
the Rights evidenced thereby (notwithstanding any notations of ownership or
writing on the Right Certificate or the associated Share certificate made by
anyone other than the Company or the Rights Agent or the transfer agent of the
Shares) for all purposes whatsoever, and neither the Company nor the Rights
Agent shall be affected by any notice to the contrary; and
(d) notwithstanding anything in this Agreement to the
contrary, neither the 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 must
use its best efforts to have any such order, decree or ruling lifted or
otherwise overturned as soon as possible.
17. Right Certificate Holder Not Deemed a Share Holder.
No holder of a Right, as such, shall be entitled to vote,
receive dividends in respect of or be deemed for any purpose to be the holder
of Shares or any other securities of the Company which may at any time be
issuable upon the exercise of the Rights, nor shall anything contained herein
or in any Right Certificate be construed to confer upon the holder of any Right
Certificate, as such, any of the rights of a Share Holder or any right to vote
for the election of the Advisory Board or upon any matter submitted to Share
Holders at any meeting thereof, or to give or withhold consent to any Company
action, or to receive notice of meetings or other actions affecting Share
Holders, or to receive dividends or subscription rights in respect of any such
Shares or securities, or otherwise, until the Right or Rights evidenced by such
Right Certificate shall have been exercised in accordance with the provisions
hereof.
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18. Concerning the Rights Agent.
(a) The Company agrees to pay to the Rights Agent
reasonable compensation for all services rendered by it hereunder and, from
time to time, on demand of the Rights Agent, its reasonable expenses and
counsel fees and other disbursements incurred in the administration and
execution of this Rights 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 gross 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 Rights Agreement,
including the cost and expenses of defending against any claim of liability in
the premises.
(b) The Rights Agent shall be protected and shall incur
no liability for or in respect of any action taken, suffered or omitted by it
in connection with its administration of this Rights Agreement in reliance upon
any Right Certificate, certificate for Shares or 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, guaranteed, verified or acknowledged, by the proper Person or
Persons.
19. Merger or Consolidation or Change of Name of Rights Agent.
(a) Any entity into which the Rights Agent or any
successor Rights Agent may be merged or with which it may be consolidated, or
any entity resulting from any merger or consolidation to which the Rights Agent
or any successor Rights Agent shall be a party, or any entity 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 Rights
Agreement without the execution or filing of any paper or any further act on
the part of any of the parties hereto, provided that such entity 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 Rights Agreement, any of the Right
Certificates shall have
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been countersigned but not delivered, any such successor Rights Agent may adopt
the countersignature of the predecessor Rights Agent and deliver such Right
Certificates so countersigned; and in case at that time any of the Right
Certificates shall not have been countersigned, any successor Rights Agent may
countersign such Right Certificates either in the name of the predecessor
Rights Agent or in the name of the successor Rights Agent; and in all such
cases such Right Certificates shall have the full force provided in the Right
Certificates and in this Rights 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 such Right Certificates so
countersigned; and in case at that time any of the Right Certificates shall not
have been countersigned, the Rights Agent may countersign such Right
Certificates either in its prior name or in its changed name, and in all such
cases such Right Certificates shall have the full force provided in the Right
Certificates and in the Rights Agreement.
20. Duties of Rights Agent.
The Rights Agent undertakes the duties and obligations imposed
by this Rights 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 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
Rights Agreement the Rights Agent shall deem it necessary or desirable that any
fact or matter (including, without limitation, the identity of any Acquiring
Person) 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
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established by a certificate signed by the President or any Vice President and
by the Treasurer or any Assistant Treasurer or the Secretary or any Assistant
Secretary of the Company (or the corresponding officers of the Manager, on
behalf 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 Rights Agreement in
reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder only for
its own gross negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason
of any of the statements of fact or recitals contained in this Rights Agreement
or in the Right Certificates (except its countersignature thereof) or be
required to verify the same, but all such statements and recitals are and shall
be deemed to have been made by the Company only.
(e) The Rights Agent shall not be under any
responsibility in respect of the validity of this Rights 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 Rights
Agreement or in any Right Certificate; nor shall it be responsible for any
adjustment required under the provisions of Section 11 or 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 of any Shares to be issued pursuant to this Rights Agreement or any
Right Certificate or as to whether any Shares will, when issued, be validly
authorized and issued, fully paid and nonassessable.
(f) The Company agrees that it will perform, execute,
acknowledge and deliver or cause to be performed, executed, acknowledged and
delivered all such further and
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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 Rights 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 or any Vice President or
Secretary or any Assistant Secretary or the Treasurer or any Assistant
Treasurer of the Company (or the corresponding officers of the Manager, on
behalf 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 stockholder, director,
officer or employee of the Rights Agent may buy, sell or deal in any of the
Rights or other securities of the Company or become pecuniarily interested in
any transaction in which the Company may be interested, or contract with or
lend money to the Company or otherwise act as fully and freely as though it
were not the Rights Agent under this Rights Agreement. Nothing herein shall
preclude the Rights Agent from acting in any other capacity for the Company or
for any other entity.
(i) The Rights Agent may execute and exercise any of the
rights or powers hereby vested in it or perform any duty hereunder either
itself or by or through its attorneys or agents, and the Rights Agent shall not
be answerable or accountable for any act, default, neglect or misconduct of any
such attorneys or agents or for any loss to the Company resulting from any such
act, default, neglect or misconduct, provided reasonable care was exercised in
the selection and continued employment thereof.
(j) No provision of this Agreement shall require the
Rights Agent to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder or in the exercise
of its rights if there shall be reasonable grounds for believing that repayment
of such funds or adequate indemnification against such risk or liability is not
reasonably assured to it.
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(k) If, with respect to any Right Certificate surrendered
to the Rights Agent for exercise or transfer, the certificate contained in the
form of assignment or the form of election to purchase set forth on the reverse
thereof, as the case may be, has 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 of transfer
without first consulting with the Company.
21. Change of Rights Agent.
The Rights Agent or any successor Rights Agent may resign and
be discharged from its duties under this Rights Agreement upon 30 days' notice
in writing mailed to the Company and to each transfer agent of the Shares 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 (with or without cause) upon 30 days' notice in writing, mailed to
the Rights Agent or successor Rights Agent, as the case may be, and to each
transfer agent of the Shares by registered or certified mail, and to the
holders of the Right Certificates by first-class mail. If the Rights Agent
shall resign or be removed or shall otherwise become incapable of acting, the
Company shall appoint a successor to the Rights Agent. Notwithstanding the
foregoing provisions of this Section 21, in no event shall the resignation or
removal of a Rights Agent be effective until a successor Rights Agent shall
have been appointed and have accepted such appointment. If the Company shall
fail to make such appointment within a period of 30 days after 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 incumbent Rights Agent or the holder of record 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 any State
thereof, in good standing, which is authorized under such laws to exercise
corporate trust or stock transfer powers
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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 $50,000,000 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 Shares, and mail a
notice thereof in writing to the registered holders of the Right Certificates.
Failure to give any notice provided for in this Section 21, however, or any
defect therein, shall not affect the legality or validity of the resignation or
removal of the Rights Agent or the appointment of the successor Rights Agent,
as the case may be.
22. Issuance of New Right Certificates.
Notwithstanding any of the provisions of this Rights 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 the
Advisory Board to reflect any adjustment or change in the purchase price per
share and the number or kind or class of shares of stock or other securities or
property purchasable under the Right Certificates made in accordance with the
provisions of this Rights Agreement. In addition, in connection with the
issuance or sale of Shares following the Distribution Date and prior to the
redemption or expiration of the Rights, the Company, (a) shall, with respect to
Shares so issued or sold pursuant to the exercise of 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 Advisory Board, issue Right
Certificates representing the appropriate number of Rights in connection with
such issuance or sale; provided, however, that (i) no such Right
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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.
23. Redemption.
(a) (i) The Advisory Board may, at its option, at any
time prior to the earlier of (x) the time that any person becomes an Acquiring
Person or (y) the Close of Business on the Final Expiration Date, redeem all
but not less than all the then outstanding Rights at a redemption price of
$0.01 per Right, as such amount may be appropriately adjusted to reflect any
Share split, Share dividend or similar transaction occurring after the date
hereof (such redemption price being hereinafter referred to as the "Redemption
Price").
(ii) Notwithstanding anything contained in this
Agreement to the contrary, the Advisory Board may redeem all but not less than
all of the then outstanding Rights at the Redemption Price following the
occurrence of a Share Acquisition Date but prior to any Section 13 Event in
connection with a Section 13 Event in which all holders of Shares are treated
alike and not involving (other than as a holder of Shares being treated like
all other such holders) an Acquiring Person or an Affiliate or Associate of an
Acquiring Person or any other Person in which such Acquiring Person, Affiliate
or Associate has an interest, or any other Person or Persons acting directly or
indirectly on behalf of or in association with any such Acquiring Person,
Affiliate or Associate.
(b) Immediately upon the action of the Advisory Board
ordering the redemption of the Rights, 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, without any interest thereon. Within 10 days after the
action of the Advisory Board ordering the redemption of the Rights, the Company
will give notice of such redemption to the Rights Agent and the holders of the
then outstanding Rights by mailing such
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notice to all such holders at their last addresses as they appear upon the
registry books of the Rights Agent or, prior to the Distribution Date, on the
registry books of the transfer agent(s) of the Shares. Any notice which is
mailed in the manner herein provided shall be deemed given, whether or not the
holder receives the notice. Each such notice of redemption will state the
method by which the payment of the Redemption Price will be made. The failure
to give notice required by this Section 23(b) or any defect therein shall not
affect the legality or validity of the action taken by the Company.
(c) In the case of a redemption permitted under Section
23(a), the Company may, at its option, discharge all of its obligations with
respect to the Rights by (i) issuing a press release announcing the manner of
redemption of the Rights and (ii) mailing payment of the Redemption Price to
the registered holders of the Rights at their last addresses as they appear on
the registry books of the Rights Agent or, prior to the Distribution Date, on
the registry books of the transfer agent(s) of the Shares, and upon such
action, all outstanding Right Certificates shall be null and void without any
further action by the Company.
24. Notice of Proposed Actions.
(a) In case the Company, after the Distribution Date,
shall propose (i) to effect any of the transactions referred to in Section
11(a)(i) or to pay any dividend to the holders of record of its Shares payable
in securities of any class or to make any other distribution to the holders of
record of its Shares (other than a regular periodic cash dividend), or (ii) to
offer to the holders of record of its Shares options, warrants, or other rights
to subscribe for or to purchase Shares (including any security convertible into
or exchangeable for Shares) or shares of any class or any other securities,
options, warrants, convertible or exchangeable securities or other rights, or
(iii) to effect any reclassification of its Shares or any recapitalization or
reorganization of the Company, or (iv) to effect any consolidation or merger
with or into any other Person or Persons, 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 record of a Right Certificate, in accordance with
Section 25 hereof, notice of such proposed action, which shall specify the
record date for the
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purposes of such transaction referred to in Section 11(a)(i), or such dividend
or distribution, or the date on which such reclassification, recapitalization,
reorganization, consolidation, merger, sale or transfer of assets, liquidation,
dissolution, or winding up is to take place and the record date for determining
participation therein by the holders of record of Shares, if any such date is
to be fixed, and such notice shall be so given in the case of any action
covered by clause (i) or (ii) above at least 10 days prior to the record date
for determining holders of record of the Shares for purposes of such action,
and in the case of any such other action, at least 10 days prior to the date of
the taking of such proposed action or the date of participation therein by the
holders of record of Shares, whichever shall be the earlier. The failure to
give notice required by this Section 24 or any defect therein shall not affect
the legality or validity of the action taken by the Company or the vote upon
any such action.
(b) In case any of the transactions referred to in
Section 11(a)(ii) or Section 13 of this Rights Agreement are proposed, then, in
any such case, the Company shall give to each holder of Rights, in accordance
with Section 25 hereof, notice of the proposal of such transaction at least 10
days prior to consummating such transaction, which notice shall specify the
proposed event and the consequences of the event to holders of Rights under
Section 11(a)(ii) or Section 13 hereof, as the case may be, and, upon
consummating such transaction, shall similarly give notice thereof to each
holder of Rights.
25. Notices.
Notices or demands authorized by this Rights Agreement to be
given or made by the Rights Agent or by the holder of record of any Right
Certificate or Right to or on behalf of the Company shall be sufficiently given
or made if sent by first-class mail, postage prepaid, addressed (until another
address is filed in writing with the Rights Agent) as follows:
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Triad Park, LLC
0000 Xxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Chief Financial Officer
Subject to the provisions of Section 21 hereof, any notice or demand authorized
by this Rights Agreement to be given or made by the Company or by the holder of
record of any Right Certificate or Right to or on the Rights Agent shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed (until another address is filed in writing with the Company) as
follows:
[INSERT NAME OF RIGHTS AGENT]
___________________________________________________
___________________________________________________
Attention: _______________________________________
Notices or demands authorized by this Rights Agreement to be given or made by
the Company or the Rights Agent to the holder of record of any Right
Certificate or Right 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 it appears upon the registry books of the Rights Agent or, prior to the
Distribution Date, on the registry books of the Transfer Agent.
26. Supplements and Amendments.
The Company and the Rights Agent may from time to time
supplement or amend this Agreement without approval of any holders of Rights in
order (i) to cure any ambiguity, (ii) to correct or supplement any provision
contained herein which may be defective or inconsistent with any other
provision herein, (iii) prior to the time a Person becomes an Acquiring Person,
to change or supplement any of the provisions herein which the Company may deem
necessary or desirable (including, but not limited to, an amendment that
provides that the Rights shall become exercisable for Equivalent Securities) or
(iv) following the time a Person becomes an Acquiring Person, 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. Upon the delivery of a certificate from an
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appropriate officer of the Company which states that the proposed supplement or
amendment is in compliance with the terms of this Section 26, the Rights Agent
shall execute such supplement or amendment unless the Rights Agent shall have
determined in good faith that such supplement or amendment would adversely
affect its interests under this Agreement. Notwithstanding anything contained
in this Rights Agreement to the contrary, no supplement or amendment shall be
made which changes the Redemption Price. Prior to the Distribution Date, the
interests of the holders of Rights shall be deemed coincident with the
interests of the holders of Shares.
27. Successors.
All of the covenants and provisions of this Rights 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.
28. Benefits of this Rights Agreement.
Nothing in this Rights Agreement shall be construed to give to
any person or corporation other than the Company, the Rights Agent and the
registered holders of the Right Certificates (and, prior to the Distribution
Date, the Shares) any legal or equitable right, remedy or claim under this
Rights Agreement; but this Rights Agreement shall be for the sole and exclusive
benefit of the Company, the Rights Agent and the holders of record of the Right
Certificates (and, prior to the Distribution Date, the Shares).
29. Delaware Contract.
The Rights Agreement and each Right Certificate issued
hereunder shall be deemed to be a contract made under the laws of the State of
Delaware and for all purposes shall be governed by and construed in accordance
with the laws of such state applicable to contracts to be made and performed
entirely within such state; provided, however, that the rights and obligations
of the Rights Agent shall be governed by the laws of the State of
__________________(or state of incorporation of any successor Rights Agent).
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30. Counterparts.
This Rights 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.
31. Descriptive Headings.
Descriptive headings of the several sections of this Rights
Agreement are inserted for convenience only and shall not control or affect the
meaning or construction of any of the provisions hereof.
32. Severability.
If any term, provision, covenant or restriction of this Rights
Agreement is held by a court of competent jurisdiction or other authority to be
invalid, illegal, or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Rights Agreement shall remain in full force
and effect and shall in no way be affected, impaired or invalidated.
IN WITNESS WHEREOF, the parties hereto have caused this Rights
Agreement to be duly executed, all as of the day and year first above written.
ATTEST: TRIAD PARK, LLC
By 3055 Management Corp., a California
corporation, Its Manager
By By
---------------------------------------- ---------------------------------------
Its Its
------------------------------------- -----------------------------------
ATTEST: [INSERT NAME OF RIGHTS AGENT]
By By
---------------------------------------- ---------------------------------------
Its Its
-----------------------------------
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EXHIBIT A
[Form of Right Certificate]
Certificate No. W - ____________ Rights
NOT EXERCISABLE AFTER [DATE], 2007 OR EARLIER IF REDEEMED.
THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE
COMPANY, AT $0.01 PER RIGHT ON THE TERMS SET FORTH IN THE
RIGHTS AGREEMENT. IN THE EVENT THAT THE RIGHTS REPRESENTED BY
THIS CERTIFICATE ARE ISSUED TO A PERSON WHO IS AN ACQUIRING
PERSON OR AN ASSOCIATE OR AFFILIATE OF AN ACQUIRING PERSON OR
A TRANSFEREE OF THE RIGHTS PREVIOUSLY OWNED BY SUCH PERSONS,
THIS RIGHT CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY
BE SUBJECT TO CERTAIN LIMITATIONS IN THE CIRCUMSTANCES
SPECIFIED IN SECTION 11(a)(ii) OF THE RIGHTS AGREEMENT.
RIGHT CERTIFICATE
TRIAD PARK, LLC
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 Rights Agreement dated as of [DATE], 1997 ("Rights
Agreement") between Triad Park, LLC, a Delaware limited liability company
("Company"), and [INSERT NAME OF RIGHTS AGENT] ("Rights Agent") to purchase
from the Company at any time after the Distribution Date (as such term is
defined in the Rights Agreement) and prior to 5:00 p.m. (San Francisco time) on
[DATE], 2007 at the office of the
Exhibit A
48
Rights Agent, or its successors as Rights Agent, designated for such purpose
one fully paid and nonassessable share ("Share"), of the Company at a purchase
price of $0.63 as the same may from time to time be adjusted in accordance with
the Rights Agreement ("Purchase Price"), upon presentation and surrender of
this Right Certificate with the Form of Election to Purchase duly executed.
As provided in the Rights Agreement, the Purchase Price and
the number of Shares which may be purchased upon the exercise of the Rights
evidenced by this Right Certificate are subject to modification and adjustment
upon the happening of certain events and, upon the happening of certain events,
securities other than Shares, or other property, may be acquired upon exercise
of the Rights evidenced by this Right Certificate, as provided by the Rights
Agreement.
This Right Certificate is subject to all of the terms,
provisions and conditions of the Rights Agreement, which terms, provisions and
conditions are 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 of the Rights
Agent, the Company and the holders of record of the Right Certificates. Copies
of the Rights Agreement are on file at the principal executive office of the
Company.
This Right Certificate, with or without other Right
Certificates, upon surrender at the office of the Rights Agent designated for
such purpose, may be exchanged for another Right Certificate or Right
Certificates of like tenor and date evidencing Rights entitling the holder of
record to purchase a like aggregate number of Shares as the Rights evidenced by
the Right Certificate or Right Certificates surrendered shall have entitled
such holder to purchase. If this
2
49
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 may be redeemed by the Company at its option at a
redemption price of $0.01 per Right at any time prior to the earlier of (i) the
date on which a Person becomes an Acquiring Person (as such term is defined in
the Rights Agreement), or (ii) the Final Expiration Date.
No fractional Shares shall be issued upon the exercise of any
Right or Rights evidenced hereby, and in lieu thereof, as provided in the
Rights Agreement, fractions of Shares shall receive an amount in cash equal to
the same fraction of the then current market value of a Share.
No holder of this Right Certificate shall be entitled to vote
or receive dividends or be deemed for any purpose the holder of Shares 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
Shareholder of the Company or any right to vote for the Advisory Board, or upon
any matter submitted to Shareholders at any meeting thereof, or to give or
withhold consent to any company action or to receive notice of meetings or
other actions affecting Shareholders 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.
3
50
WITNESS the facsimile signature of the proper officers of the
Company. Dated as of ____________________, _____.
ATTEST: TRIAD PARK, LLC
_________________________________ _________________________________
Secretary Title:
COUNTERSIGNED:
By:_____________________________
Authorized Signature
4
51
Form of Reverse Side of Right Certificate
FORM OF ASSIGNMENT
(To be executed by the registered holder
if such holder desires to transfer any or all of the Rights
represented by this Right Certificate)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
_____________________________________________________________________________
(Name, address and social security or other identifying number of transferee)
_______________________________________ (___________________) of the Rights
represented by this Right Certificate, together with all right, title and
interest in and to said Rights, and hereby irrevocably constitutes and appoints
________________________ attorney to transfer said Rights on the books of the
within-named Company with full power of substitution.
Dated:______________, _____ ___________________________________
(Signature)
Signature Guaranteed:
CERTIFICATE
The undersigned hereby certifies by checking the appropriate
boxes that:
(1) the rights evidenced by this Right Certificate [ ]
are [ ] are not being sold, assigned and transferred by or on behalf of a
Person who is or was an Acquiring Person (as such capitalized terms are defined
in 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 or was an Acquiring Person or an
Affiliate or Associate of an Acquiring Person or any transferee of such
Persons.
Dated:______________, _____ ___________________________________
(Signature)
Signature Guaranteed:
5
52
Form of Reverse Side of Right Certificate
(continued)
NOTICE
The signatures to the foregoing Assignment and the foregoing
Certificate, if applicable, 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, and must be guaranteed by a member firm
of a registered national securities exchange, a member of the National
Association of Securities Dealers, Inc., or a commercial bank or trust company
having an office or correspondent in the United States.
In the event that the foregoing Certificate is not duly
executed, with signature guaranteed, the Company may deem the Rights
represented by this Right Certificate to be Beneficially Owned by an Acquiring
Person or an Affiliate or Associate of an Acquiring Person (as such capitalized
terms are defined in the Rights Agreement), and not issue any Right Certificate
or Right Certificates in exchange for this Right Certificate.
6
53
Form of Reverse of Right Certificate
(continued)
FORM OF ELECTION TO PURCHASE
(To be executed by the registered holder
if such holder desires to exercise any or all of the Rights
represented by this Right Certificate)
To Triad Park, LLC:
The undersigned hereby irrevocably elects to exercise
______________________ (_________) of the Rights represented by this Right
Certificate to purchase the Shares of the Company, or other securities or
property issuable upon the exercise of said number of Rights pursuant to the
Rights Agreement.
The undersigned hereby requests that a certificate for any
such securities and any such property be issued in the name of and delivered
to:
_____________________________________________________________________________
(Name, address and social security or other identifying number of issuee)
The undersigned hereby further requests that if said number of
Rights shall not be all the Rights represented by this Right Certificate, a new
Right Certificate for the remaining balance of such Rights be issued in the
name of and delivered to:
_____________________________________________________________________________
(Name, address and social security or other identifying number of issuee)
Dated:______________, _____ _____________________________
(Signature)
Signature Guaranteed:
7
54
Form of Reverse Side of Right Certificate
(continued)
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 Acquiring Person or
an Affiliate or Associate of any such Acquiring 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 or was an Acquiring Person or an Affiliate or Associate of an
Acquiring Person or any transferee of such Persons.
Dated:______________, _____ _________________________
Signature Guaranteed:
NOTICE
The signature to the foregoing Election to Purchase and the
foregoing Certificate, if applicable, 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, and must be guaranteed by a member
firm of a registered national securities exchange, a member of the National
Association of Securities Dealers, Inc., or a commercial bank or trust company
having an office or correspondent in the United States.
In the event that the foregoing Certificate is not executed,
with signature guaranteed, the Company may deem the Rights represented by this
Right Certificate to be Beneficially Owned by an Acquiring Person or an
Affiliate or Associate of an Acquiring Person (as such capitalized terms are
defined in the Rights Agreement), and not issue any Right Certificate or Right
Certificates in exchange for this Right Certificate.
8
55
EXHIBIT B
TRIAD PARK, LLC
SUMMARY OF RIGHTS TO PURCHASE
SHARES
On [DATE], 1997, the Advisory Board of Triad Park, LLC (the
"Company") declared a dividend distribution of one Share Purchase Right
(collectively, the "Rights") for each outstanding Share ("Share") of the
Company. The distribution was payable as of [DATE], 1997 to Shareholders of
record on that date. Each Right entitles the registered holder to purchase
from the Company one Share at a price of $0.63 per share (the "Purchase
Price"). The description and terms of the Rights are set forth in a Rights
Agreement (the "Rights Agreement") between the Company and [INSERT NAME OF
RIGHTS AGENT], as Rights Agent (the "Rights Agent").
As discussed below, initially the Rights will not be
exercisable, certificates will not be sent to Shareholders and the Rights will
automatically trade with the Shares.
Until the earlier to occur of (i) a public announcement that a
person or group of affiliated or associated persons ("Acquiring Person"), other
than the Company, or any employee benefit plan or employee equity plan of the
Company ("Exempt Person") has acquired, or obtained the right to acquire,
without approval of the Advisory Board, beneficial ownership of securities of
the Company representing 24% or more of the outstanding Shares of the Company
(other than solely as a result of a reduction in the outstanding Shares of the
Company) or such earlier date as a majority of the Advisory Board shall become
aware of such acquisition of the Shares (the "Share Acquisition Date") or (ii)
the tenth day (subject to extension by the Board prior to the time a person
becomes an Acquiring Person) following the commencement of, or public
announcement of an intention to commence, a tender or exchange offer (other
than a tender or exchange offer by an Exempt Person), the consummation of which
would result in the ownership of 24% or more of the outstanding Shares (the
earlier of such dates being called the
Exhibit B
56
"Distribution Date"), the Rights will be evidenced, with respect to the Shares
by Share certificates with a copy of this Summary of Rights attached thereto.
Rights shall be issued in respect of all Shares issued after [DATE], 1997 but
prior to the earlier of the Distribution Date or the Expiration Date. The
Rights Agreement provides that, until the Distribution Date (or earlier
redemption or expiration of the Rights), the Rights will be represented by and
transferred with, and only with, the certificates of Shares registered in the
names of the holders thereof. Until the Distribution Date (or earlier
redemption or expiration of the Rights), new certificates issued for Shares
(including, without limitation, certificates issued upon transfer or exchange
of Shares) after [DATE], 1997 will contain a legend incorporating the Rights
Agreement by reference. Until the Distribution Date (or earlier redemption or
expiration of the Rights), the surrender for transfer of any of the Company's
Share certificates, with or without the aforesaid legend or a copy of this
Summary of Rights attached thereto, will also constitute the transfer of the
Rights associated with the Shares represented thereby. As soon as practicable
following the Distribution Date, separate certificates evidencing the Rights
("Right Certificates") will be mailed to holders of record of the Company's
Shares, as of the close of business on the Distribution Date, and such separate
certificates alone will evidence the Rights from and after the Distribution
Date.
The Rights are not exercisable until the Distribution Date.
The Rights will expire at the close of business on [DATE], 2007, unless earlier
redeemed by the Company as described below.
The Purchase Price payable, and the number of Shares or other
securities or property issuable, upon exercise of the Rights are subject to
adjustment from time to time to prevent dilution (i) in the event of a Share
dividend on, or a subdivision, combination or reclassification of the Shares,
(ii) upon the grant to holders of the Shares of certain rights or warrants to
subscribe for Shares or convertible securities at less than the current market
price of the Shares or (iii) upon the distribution to holders of the Shares of
evidences of indebtedness or assets (excluding dividends payable in Shares) or
of subscription rights or warrants (other than those referred to above).
ii
57
Unless the Rights are earlier redeemed, in the event that,
after the Rights have become exercisable, the Company were to be acquired in a
merger or other business combination (in which any of the Company's Shares are
changed into or exchanged for other securities or assets) (other than a merger
or other business combination in which the voting power represented by the
Company's securities outstanding immediately prior thereto continues to
represent all of the voting power represented by the securities of the Company
thereafter and the holders of such securities have not changed as a result of
such transaction) (such transactions are collectively referred to herein as the
"Section 13 Events"), the Rights Agreement provides that proper provision shall
be made so that each holder of record of a Right will from and after such date
have the right to receive, upon payment of the Purchase Price, that number of
shares of common stock of the acquiring company having a market value at the
time of such transaction equal to two times the Purchase Price. This provision
would not apply to a Section 13 Event consummated with a person who acquired
shares pursuant to a Permitted Offer (as defined below) if the price per share
paid in such transaction is not less than that paid pursuant to the Permitted
Offer and the consideration paid is the same paid pursuant to the Permitted
Offer.
In the event (i) any Person (other than an Exempt Person)
becomes the beneficial owner of 24% or more of the then outstanding Shares
other than pursuant to a tender or exchange offer for all outstanding Shares at
a price and on terms determined by the Advisory Board to be both adequate and
otherwise in the best interests of the Company and its Shareholders other than
the Acquiring Person or an Affiliate or Associate thereof on whose behalf the
offer is being made (a "Permitted Offer"), or (ii) any Acquiring Person or any
of its Affiliates or Associates, directly or indirectly, (1) merges into the
Company or otherwise combines with the Company in a transaction in which the
Company is the continuing or surviving corporation of such merger or
combination and the Shares remain outstanding and no Shares shall be changed
into or exchanged for stock or other securities of any other person or of the
Company or cash or any other property, (2) transfers, in one or more
transactions, any assets to the Company in exchange for equity securities of
the Company or for securities exercisable for or convertible into equity
iii
58
securities of the Company or otherwise obtains from the Company, with or
without consideration, any equity securities of the Company or securities
exercisable for or convertible into equity securities of the Company (other
than as part of a pro rata offer or distribution to all holders of such
securities), (3) sells, purchases, leases, exchanges, mortgages, pledges,
transfers or otherwise disposes to, from or with the Company, assets on terms
and conditions less favorable to the Company than the Company would be able to
obtain in arm's-length negotiation with an unaffiliated third party, (4)
receives any compensation from the Company for serving other than compensation
for employment as a regular or part-time employee, or fees for servicing as a
director at rates in accordance with the Company's past practice, (5) receives
the benefit (except proportionately as a Shareholder) of any loans, advances,
guarantees, pledges or other financial assistance or tax credit or advantage,
or (6) engages in any transaction with the Company involving the sale, license,
transfer or grant of any right in, or disclosure of, any patents, copyrights,
trade secrets, trademarks or knowhow (or any other intellectual or industrial
property rights recognized under any country's intellectual property rights
laws) which the Company owns or has the right to use on terms and conditions
not approved by the Advisory Board then, and in each such case, each holder of
record of a Right, other than the Acquiring Person, will thereafter have the
right to receive, upon payment of the Purchase Price, that number of Shares
having a market value at the time of the transaction equal to twice the
Purchase Price. This same right shall be available to each holder of record of
a Right, other than the Acquiring Person, if, while there is an Acquiring
Person, there shall occur any reclassification of securities (including any
reverse split), any recapitalization of the Company, or any merger or
consolidation of the Company or any other transaction or transactions involving
the Company (whether or not involving the Acquiring Person) which have the
effect of increasing by more than 1% of the proportionate share of the
outstanding shares of any class of equity securities of the Company which is
directly or indirectly owned or controlled by the Acquiring Person. Rights are
not exercisable following the occurrence of the events set forth in this
paragraph until the expiration of the period during which the Rights may be
redeemed as described below. The
iv
59
holder of any Rights that are or were at any time, on or after the earlier of
the Share Acquisition Date or the Distribution Date, beneficially owned by an
Acquiring Person which is or was involved in or which caused or facilitated,
directly or indirectly, the event or transaction or transactions described in
this paragraph shall not be entitled to the benefit of the adjustment described
in this paragraph.
No fractional Shares will be issued upon exercise of the
Rights and, in lieu thereof, a payment in cash will be made to the holder of
such Rights equal to the same fraction of the current market value of a Share.
At any time until the time that any person becomes an
Acquiring Person, the Company may redeem the Rights in whole, but not in part,
at a price of $.01 per Right. The Company may also redeem the Rights in whole,
but not in part, at a price of $.01 per Right after the Share Acquisition Date
but prior to any Section 13 Event in connection with a Section 13 Event in
which all holders of Shares are treated alike and not involving (other than as
a holder of Shares being treated like all other holders) an Acquiring Person or
an Affiliate or Associate of an Acquiring Person or any other Person in which
such Acquiring Person, Affiliate or Associate has an interest or any other
Person or Persons acting directly or indirectly on behalf of or in association
with any such Acquiring Person, Affiliate or Associate. Immediately upon the
action of the Advisory Board of the Company authorizing redemption of the
Rights, the right to exercise the Rights will terminate, and the only right of
the holders of Rights will be to receive the Redemption Price without any
interest thereon.
The Company may, except with respect to the redemption price,
amend the Rights in any manner (including an amendment that provides that the
Rights shall become exercisable for shares or fractions of shares of securities
of the Company that are economically equivalents). After a person becomes an
Acquiring Person, the Company may amend the Rights in any manner that does not
adversely affect the interests of holders of the Rights.
Until a Right is exercised, the holder, as such, will have no
rights as a Shareholder of the Company, including, without limitation, the
right to vote or to receive dividends.
v
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The issuance of the rights is not taxable to the Company or to
Shareholders under presently existing federal income tax law, and will not
change the way in which Shareholders can presently trade the Company's Shares.
If the Rights should become exercisable, Shareholders, depending on then
existing circumstances, may recognize taxable income.
A copy of the Rights Agreement has been filed with the
Securities and Exchange Commission as an Exhibit to a Current Report on Form
8-K. A copy of the Rights Agreement is available free of charge from either
[INSERT NAME OF RIGHTS AGENT], _, Attention: , or the Company, 0000 Xxxxx
Xxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: Secretary. This summary
description of the Rights does not purport to be complete and is qualified in
its entirety by reference to the Rights Agreement which is incorporated in this
summary description herein by reference.
vi
