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EXHIBIT 4.3
RIGHTS AGREEMENT
RIGHTS AGREEMENT, dated as of February 12, 1997 (the "Agreement").
between WGNB Corp., a Georgia corporation (the "Company"), and SunTrust Bank,
Atlanta, a commercial bank organized under the laws of the State of Georgia (the
"Rights Agent").
WITNESSETH
WHEREAS, on February 11, 1997 (the "Rights Dividend Declaration Date"),
the Board of Directors of the Company authorized and declared a dividend
distribution of one Right for each share of Common Stock of the Company
outstanding at the Close of Business on February 12, 1997 (the "Record Date"),
and has authorized the issuance of one Right (as such number may hereinafter be
adjusted pursuant to the provisions of Section 11(m) hereof), which includes one
Initial Right and one Second Right, for each share of Common Stock of the
Company issued between the Record Date (whether originally issued or delivered
from the Company's treasury) and the Second Distribution Date pursuant to the
terms hereof. The dividend payment date shall be February 28, 1997.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
SECTION 1. CERTAIN DEFINITIONS.
For purposes of this Agreement, the following terms have the meanings
indicated:
(a) "Acquiring Person" (i) for purposes of all matters relating to
the Initial Rights shall mean any Person who or which shall, after the Rights
Dividend Declaration Date, become the Beneficial Owner of 10% or more of the
shares of Common Stock then outstanding and (ii) for purposes of all matters
relating to the Second Rights shall mean any Person who on or following the
Initial Stock Acquisition Date, becomes the Beneficial Owner of additional
shares constituting 10% or more of the shares of Common Stock then outstanding,
in addition to those owned, if any, by such Person at the Initial Stock
Acquisition Date, but, in each case, shall not include the Company, any
Subsidiary of the Company, or any Person who or which is the Beneficial Owner of
10% or more of the shares of Common Stock of the Company as of the Record Date
(a "Grandfathering Shareholder"), any employee benefit plan of the Company or of
any Subsidiary of the Company, or any Person or entity organized, appointed or
established by the Company for or pursuant to the terms of any such plan;
provided, however, any Person who or which is the Beneficial Owner of 10% or
more of the shares of Common Stock as of the Record Date and who or which
becomes the Beneficial Owner of an additional 3% or more of the shares of Common
Stock then outstanding shall be deemed an Acquiring Person. Notwithstanding the
foregoing, no Person shall become an Acquiring Person solely as the result of an
acquisition of shares of Common Stock by the Company or a recapitalization
which, by reducing the number of shares of Common Stock outstanding, increases
the proportionate number of shares Beneficially Owned by
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such Person; provided, however, that if a Person would have become an Acquiring
Person by reason of such increased Beneficial Ownership of shares but for the
preceding clause, such Person shall be deemed to be an Acquiring Person if such
Person shall become the Beneficial Owner of additional shares equal to or more
than 3% of the then outstanding number of shares of Common Stock.
(b) "Act" shall mean the Securities Act of 1933, as amended.
(c) "Affiliate" shall have the meaning ascribed to such term in
Rule 12b-2 of the General Rules and Regulations under the Securities Exchange
Act of 1934, as amended and in effect on the date of this Agreement (the
"Exchange Act").
(d) "Associate" shall mean:
(i) any corporation or organization, or parent or
subsidiary of such corporation or organization, of which a Person is an officer,
director or partner or is, directly or indirectly, the Beneficial Owner of 10%
or more of any class of equity securities;
(ii) any trust or other estate in which a Person has a
beneficial interest of 10% or more or as to which such Person serves as
trustee or in a similar fiduciary capacity; and
(iii) any brother or sister (whether by whole or half
blood), ancestor, lineal descendant or spouse of a Person, or any such relative
of such spouse.
(e) A Person shall be deemed the "Beneficial Owner" of, and shall
be deemed to "Beneficially Own," any securities:
(i) which such Person or any of such Person's Affiliates
or Associates, directly or indirectly, has the right to acquire (whether such
right is exercisable immediately or only after the passage of time) pursuant to
any agreement, arrangement or understanding (whether or not in writing) or upon
the exercise of conversion rights, exchange rights, rights, warrants or options,
or otherwise; provided, however, that a Person shall not be deemed the
"Beneficial Owner" of, or to "Beneficially Own":
(A) securities acquired by participation in good
faith in a firm commitment underwriting by a Person engaged in
business as an underwriter of securities until the expiration
of forty days after the date of such acquisition, or
(B) 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
(C) securities issuable upon exercise of Rights
at any time prior to the time a Person becomes an Acquiring
Person (as defined in this section), or
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(D) securities issuable upon exercise of Rights
from and after the time a Person becomes an Acquiring Person
which Rights were acquired by such Person or any of such
Person's Affiliates or Associates prior to the respective
Distribution Dates (as hereinafter defined in Section 3(a)) or
pursuant to Section 3(a) or Section 22 hereof (the "Original
Rights") or pursuant to Section 11(f) hereof in connection
with an adjustment made with respect to any Original Rights:
(ii) which such Person or any of such Person's Affiliates
or Associates, directly or indirectly, has the right to vote or dispose
of or has "Beneficial Ownership" of (as determined pursuant to Rule
13d-3 of the General Rules and Regulations under the Exchange Act),
including pursuant to any agreement, arrangement or understanding,
whether or not in writing; provided, however, that a Person shall not
be deemed the "Beneficial Owner" of, or to "Beneficially Own," any
security under this subparagraph (ii) as a result of an agreement,
arrangement or understanding to vote such security if such agreement,
arrangement or understanding:
(A) arises solely from a revocable proxy given
in response to a public proxy or consent solicitation made by
the Company or the Board of Directors of the Company; and
(B) would not also then be reportable by such
Person on Schedule 13D under the Exchange Act (or any
comparable or successor report) if the Common Stock was then
registered under Section 12 of the Exchange Act; or
(iii) which are Beneficially Owned, directly or indirectly,
by any other Person (or any Affiliate or Associate thereof) with which
such Person (or any of such Person's Affiliates or Associates) has any
agreement, arrangement or understanding (whether or not in writing),
for the purpose of acquiring, holding, voting (except pursuant to a
revocable proxy as described in the proviso to subparagraph (ii) of
this paragraph (f)) or disposing of any voting securities of the
Company.
(f) "Business Day" shall mean any day other than a Saturday,
Sunday or a day on which banking institutions in the State of Georgia 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.,
Atlanta time, on such date; provided, however, that if such date is not a
Business Day it shall mean 5:00 p.m., Atlanta time, on the next succeeding
Business Day.
(h) "Common Stock" shall mean the common stock, par value $2.50
per share, of the Company, except that "Common Stock" when used with reference
to any Person other than the Company shall mean the capital stock of such Person
with the greatest voting power, or the equity securities or other equity
interest having power to control or direct the management, of such Person.
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(i) "Common Stock Equivalents" shall have the meaning set forth in
Section 11(b)(ii)(C) hereof.
(j) "Current Market Price" per share of Common Stock on any date
shall mean the average of the daily closing prices per share of such Common
Stock for the thirty (30) consecutive Trading Days (as such term is hereinafter
defined) immediately prior to such date, and for purposes of computations made
pursuant to Section 11(a) hereof, the Current Market Price per share of Common
Stock on any date shall be deemed to be the average of the daily closing prices
per share of such Common Stock for the ten (10) consecutive Trading Days
immediately following such date; provided, however, that in the event that the
Current Market Price per share of the Common Stock is determined during a period
following the announcement by the issuer of such Common Stock of:
(i) a dividend or distribution on such Common Stock
payable in shares of such Common Stock or securities convertible into
shares of such Common Stock (other than the Rights), or
(ii) any subdivision, combination or reclassification of
such Common Stock, and prior to the expiration of the requisite thirty
(30) Trading Days or ten (10) Trading Day period, as set forth above,
after the ex-dividend date for such dividend or distribution, or the
record date for such subdivision, combination or reclassification,
then, and in each such case, the Current Market Price shall be properly adjusted
to take into account ex-dividend trading. The closing price for each day shall
be the last sale price, regular way, or, in case no such sale takes place on
such day, the average of the closing bid and asked prices, regular way, in
either case as reported in the principal consolidated transaction reporting
system with respect to securities listed or admitted to trading on an
interdealer quotation system or other organized trading market or exchange on
which such securities are listed or traded or, if the shares of Common Stock are
not listed or admitted to trading on an interdealer quotation system or other
organized trading market or exchange, the last quoted price or, if not so
quoted, the average of the high bid and low asked prices in the over-the-counter
market, as reported by the National Association of Securities Dealers, Inc. or
such other system then in use, or, if on any such date the shares of Common
Stock are not quoted by any such organization, the average of the closing bid
and asked prices as furnished by a professional market maker making a market in
the Common Stock selected by the Board of Directors of the Company. If on any
such date no market maker is making a market in the Common Stock, the fair value
of such shares on such date as determined in good faith by the Board of
Directors of the Company shall be used. The term "Trading Day" shall mean a day
on which the principal national securities exchange on which the shares of
Common Stock are listed or admitted to trading is open for the transaction of
business or, if the shares of Common Stock are not listed or admitted to trading
on any national securities exchange, a Business Day. If the Common Stock is not
publicly held or not so listed or traded, Current Market Price per share shall
mean the fair value per share as determined in good faith by the Board of
Directors of
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the Company, whose determination shall be described in a statement filed with
the Rights Agent and shall be conclusive for all purposes.
(k) "Distribution Date" shall mean the Initial Distribution Date
and/or the Second Distribution Date, as the case may be.
(1) "Exchange Act" shall have the meaning set forth in Section
I(c) hereof.
(m) "Exempt Person" shall mean the Company, any Subsidiary (as
such term is hereinafter defined) of the Company, any employee benefit plan of
the Company or of any Subsidiary of the Company, or any entity or trustee
holding Common Stock for or pursuant to the terms of any such plan or for the
purpose of funding any such plan or funding other employee benefits for
employees of the Company or of any Subsidiary of the Company.
(n) "Expiration Date" shall mean the earlier of the time at which
the Rights are redeemed as provided in Section 23 hereof or the "Final
Expiration Date" (as hereinafter defined in this section).
(o) "Final Expiration Date" shall mean the Close of Business on
January 31, 2007.
(p) "Initial Distribution Date" shall mean the earlier of:
(i) the Close of Business on the tenth Business Day after
the first Stock Acquisition Date (or, if the tenth Business Day after
the first Stock Acquisition Date occurs before the Record Date, the
Close of Business on the Record Date); or
(ii) the Close of Business on the tenth Business Day after
the date that a tender or exchange offer by any Person (other than an
Exempt Person) is first published or sent or given within the meaning
of Rule 14d-2(a) of the General Rules and Regulations under the
Exchange Act, if upon consummation thereof, such Person would become an
Acquiring Person.
(q) "Initial Rights" shall have the meaning set forth in Section
3(a) hereof.
(r) "Initial Rights Certificates" shall have the meaning set forth
in Section 3(a) hereof.
(s) "Initial Stock Acquisition Date" shall mean the Stock
Acquisition Date that causes a Triggering Event with respect to the Initial
Rights.
(t) "Nasdaq" shall mean the National Association of Securities
Dealers, Inc. Automated Quotation System.
(u) "Person" shall mean any individual, firm, corporation,
partnership, limited partnership, limited liability company, or other entity.
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(v) "Principal Party" shall mean
(i) in the case of any transaction described in clauses
(i) or (ii), of the first sentence of Section 13(a), the Person that is
the issuer of any securities into which shares of Common Stock of the
Company are converted in such merger, consolidation, or share exchange
and if no securities are so issued, the Person that is the other party
to such merger, consolidation, or share exchange, or, if there is more
than one such Person, the Person the shares of Common Stock of which
have the greatest aggregate market value of shares outstanding, or if
the Person that is the other party to the merger does not survive the
merger, the Person that does survive the merger (including the Company
if it survives) or the Person resulting from the consolidation; and
(ii) in the case of any transaction described in clause
(iii) of the first sentence of Section 13(a), the Person that is the
party receiving the greatest portion of the assets or earning power
transferred pursuant to such transaction or transactions, or if each
Person that is a party to such transaction or transactions receives the
same portion of the assets or earning power so transferred or if the
Person receiving the greatest portion of the assets or earning power
cannot be determined, whichever of such persons that is the issuer of
Common Stock having the greatest aggregate market value of shares
outstanding; provided, however, that in any such case,
(A) if the Common Stock of such Person is not at
such time and has not been continuously over the preceding
twelve (12) month period registered under Section 12 of the
Exchange Act, and such Person is a direct or indirect
Subsidiary of another Person the Common Stock of which is and
has been so registered, "Principal Party" shall refer to such
other Person; and
(B) in case such Person is a Subsidiary,
directly or indirectly, of more than one Person, the Common
Stocks of two or more of which are and have been so
registered, "Principal Party" shall refer to whichever of such
Persons is the issuer of the Common Stock having the greatest
aggregate market value of shares outstanding; and
(C) if such Person is owned, directly or
indirectly, by a joint venture formed by two or more Persons
that are not owned, directly or indirectly, by the same
Person, the rules set forth in clauses (A) and (B) above shall
apply to each of the owners having an interest in the venture
as if the Person owned by the joint venture was a subsidiary
of both or all of such joint venturers, and the Principal
Party in each case shall bear the obligation set forth in
Section 13 in the same ratio as its interest in such Person
bears to the total of such interests.
(w) "Purchase Price" shall have the meaning set forth in Section
11(a)(ii) hereof.
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(x) "Redemption Price" shall have the meaning set forth in Section
23(a) hereof.
(y) "Rights" shall mean the Initial Rights and the Second Rights.
(z) "Rights Certificates" shall mean the Initial Rights
Certificates and the Second Rights Certificates.
(aa) "Second Distribution Date" shall mean the earlier of:
(i) The Close of Business on the tenth Business Day after
a Stock Acquisition Date occurring on or after the
Initial Stock Acquisition Date, or
(ii) The Close of Business on the tenth Business Day after
the date a tender or exchange offer by any Person
(other than an Exempt Person) is first published or
sent or given (within the meaning of Rule 14d-2(a) of
the General Rules and Regulations under the Exchange
Act) on or after a first Stock Acquisition Date or
which is first published, sent or given prior to a
first Stock Acquisition Date but which is not
withdrawn by the offeror on or prior to the Initial
Distribution Date, if upon consummation thereof such
Person would become an Acquiring Person on or after
the Initial Stock Acquisition Date.
(bb) "Second Rights" shall have the meaning set forth in Section
3(b) hereof.
(cc) "Second Rights Certificates" shall have the meaning set forth
in Section 3(b) hereof.
(dd) "Second Stock Acquisition Date" shall mean the Stock
Acquisition Date that causes a Triggering Event with respect to the Second
Rights.
(ee) "Section 11(a)(ii) Event" shall be deemed to have occurred upon
any Person becoming an Acquiring Person.
(ff) "Section 13 Event" shall mean any event described in clauses
(i), (ii) or (iii) of Section 13(a) hereof.
(gg) "Spread" shall have the meaning set forth in Section
11(b)(ii)(B) hereof.
(hh) "Stock Acquisition Date" shall mean the earlier of (i) the
first date of public announcement (which, for purposes of this definition, shall
include, without limitation, a press release by the Acquiring Person issued,
directly or indirectly, to the Company and a newspaper of general circulation in
the Carrollton, Georgia area and a report filed pursuant to Section 13(d) under
the Exchange Act) by an Acquiring Person that an Acquiring Person has become
such or (ii) the date on which the Board of Directors first learns that an
Acquiring Person has become such. The Board of Directors, in its discretion,
shall determine whether a public announcement has occurred.
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(ii) "Subsidiary" shall mean, with reference to any Person, any
corporation of which an amount of voting securities sufficient to elect at least
a majority of the directors of such corporation is Beneficially Owned, directly
or indirectly, by such Person, or otherwise controlled by such Person.
(jj) "Summary of Rights" shall have the meaning set forth in
Section 3(b) hereof.
(kk) "Substitution Period" shall have the meaning set forth in
Section 11(b) hereof.
(ll) "Trading Day" shall have the meaning set forth in Section 1(j)
hereof.
(mm) "Triggering Event" shall mean any Section 11(a)(ii) Event, or
any Section 13 Event.
SECTION 2. APPOINTMENT OF RIGHTS AGENT.
The Company hereby appoints the Rights Agent to act as agent for the
Company and the holders of the Rights (who, in accordance with Section 3 hereof,
shall prior to the Distribution Date also be the holders of the Common Stock) in
accordance with the terms and conditions hereof, and the Rights Agent hereby
accepts such appointment. The Company may from time to time appoint such
Co-Rights Agents or successor Rights Agent(s) as it may deem necessary or
desirable.
SECTION 3. ISSUE OF RIGHTS CERTIFICATES.
(a) Until the Initial Distribution Date:
(i) the Initial Rights will be evidenced (subject to the
provisions of paragraph (c) of this Section 3) by the certificates for
the Common Stock registered in the names of the holders of the Common
Stock (which certificates for Common Stock shall be deemed also to be
certificates for Rights) and not by separate certificates, and
(ii) the Initial Rights will be transferable only in
connection with the transfer of the underlying shares of Common Stock
(including a transfer to the Company).
As soon as practicable after the Initial Distribution Date, the Rights Agent
will send by first-class, insured, postage prepaid mail, to each record holder
of the Common Stock as of the Close of Business on the Initial Distribution
Date, at the address of such holder shown on the records of the Company, one or
more rights certificates, in substantially the form of Exhibit A hereto (the
"Initial Rights Certificates"), evidencing one Right to purchase ten shares of
Common Stock for each share of Common Stock so held, subject to adjustment as
provided herein (the "Initial Rights"). In the event that an adjustment in the
number of Initial Rights per share of Common Stock has been made pursuant to
Section 11(f) hereof, at the time of distribution of the Initial Rights
Certificates, the Company shall make the necessary and appropriate rounding
adjustments (in accordance with Section 14(a) hereof) so that Rights
Certificates representing only whole numbers of Initial Rights
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are distributed and cash is paid in lieu of any fractional Initial Rights. As of
and after the Initial Distribution Date, the Initial Rights will be evidenced
solely by such Initial Rights Certificates.
(b) Until the Second Distribution Date:
(i) the Second Rights will be evidenced (subject to the
provisions of paragraph (c) of this Section 3) by the certificates for
the Common Stock registered in the names of the holders of the Common
Stock (which certificates for Common Stock shall be deemed also to be
certificates for the Second Rights) and not by separate certificates,
and
(ii) the Second Rights will be transferable only in
connection with the transfer of the underlying shares of Common Stock
(including a transfer to the Company).
As soon as practicable after the Second Distribution Date, the Rights Agent will
send by first-class, insured, postage pre-paid mail, to each record holder of
the Common Stock and each record holder of the Initial Rights as of the Close of
Business on the Second Distribution Date, at the address of each such holder
shown on the records of the Company, one or more rights certificates,
substantially in the form of Exhibit B hereto (the "Second Rights
Certificates"), and evidencing one Right to purchase ten shares of Common Stock
for each share of Common Stock so held and for each share of Common Stock then
subject to unexercised Initial Rights, subject to adjustment as provided herein
(the "Second Rights"). In the event that an adjustment in the number of Second
Rights per share of Common Stock has been made pursuant to Section 11(f)
hereof, at the time of distribution of the Second Rights Certificate, the
Company shall make the necessary and appropriate rounding adjustments (in
accordance with Section 14(a) hereof so that Second Rights Certificates
representing only whole numbers of Second Rights are distributed and cash is
paid in lieu of any fractional Second Rights. As of and after the Second
Distribution Date, the Second Rights will be evidenced solely by such Second
Rights Certificates.
(c) As promptly as practicable following the Record Date, the
Company will send a copy of a Summary of Rights, in substantially the form
attached hereto as Exhibit C (the "Summary of Rights"), by first-class, postage
prepaid mail, to each record holder of the Common Stock as of the Close of
Business on the Record Date, at the address of such holder shown on the records
of the Company. With respect to certificates for the Common Stock outstanding as
of the Record Date, until the Initial Distribution Date in the case of the
Initial Rights and the Second Distribution Date in the case of the Second
Rights, the Rights will be evidenced by such certificates for the Common Stock
and the registered holders of the Common Stock shall also be the registered
holders of the associated Rights. Until the earlier of the Initial Distribution
Date or the Expiration Date in the case of the Initial Rights and the Second
Distribution Date or the Expiration Date in the case of the Second Rights, the
transfer of any certificates representing shares of Common Stock in respect of
which Rights have been issued shall also constitute the transfer of the Rights
associated with such shares of Common Stock.
(d) Initial Rights shall be issued in respect of all shares of
Common Stock which are issued after the Record Date but prior to the earlier of
the Initial Distribution Date or the Expiration
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Date. Second Rights shall be issued in respect of all shares of Common Stock
which are issued after the Record Date but prior to the earlier of the Second
Distribution Date or the Expiration Date and in respect of all shares of Common
Stock issuable upon exercise of exercisable Initial Rights Certificates
representing such shares of Common Stock 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
WGNB Corp. (the "Company") and SunTrust Bank, Atlanta (the
"Rights Agent") dated as of February 12, 1997 (the "Rights
Agreement"), the terms of which are hereby incorporated herein
by reference and a copy of which is on file at the principal
offices of the Company. Under certain circumstances, as set
forth in the Rights Agreement, such Rights will be evidenced
by separate certificates and will no longer be evidenced by
this certificate. The Company will mail to the holder of this
certificate a copy of the Rights Agreement, as in effect on
the date of mailing, without charge promptly after receipt of
a written request therefor. Under certain circumstances set
forth in the Rights Agreement, Rights issued to, or held by,
any Person who is, was or becomes an Acquiring Person, or any
Affiliate or Associate thereof (as such terms are defined in
the Rights Agreement), whether currently held by or on behalf
of such Person or by any subsequent holder, may become null
and void.
With respect to such certificates containing the foregoing legend, until the
earlier of:
(i) the Initial Distribution Date in the case of the
Initial Rights and the Second Distribution Date in the case of the
Second Rights, or
(ii) the Expiration Date,
the Rights associated with the Common Stock represented by such certificates
shall be evidenced by such certificates alone and registered holders of Common
Stock shall also be the registered holders of the associated Rights, and the
transfer of any of such certificates shall also constitute the transfer of the
Rights associated with the Common Stock represented by such certificates.
SECTION 4. FORM OF RIGHTS CERTIFICATES.
(a) The Initial Rights Certificates and the Second Rights
Certificates (and the forms of election to purchase and of assignment to be
printed on the reverse thereof) shall each be substantially in the form set
forth in Exhibit A and Exhibit B, respectively, hereto and may have such marks
of identification or designation and such legends, summaries or endorsements
printed thereon as the Company may deem appropriate and as are not inconsistent
with the provisions of this Agreement, or as may be required to comply with any
applicable law or with any rule or regulation made pursuant thereto or with any
rule or regulation of any stock exchange on which the
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Rights may from time to time be listed, or of Nasdaq or other system then in
use, or to conform to usage. Subject to the provisions of Section 11 and Section
22 hereof, the respective Rights Certificates. whenever distributed, shall be
dated as of the Record Date and on their face shall entitle the holders thereof
to purchase such number of shares of Common Stock as shall be set forth therein
at the price determined in accordance with Section 11(a)(ii) hereof (the
"Purchase Price"), but the amount and type of securities purchasable upon the
exercise of each Right and the Purchase Price thereof shall be subject to
adjustment as provided herein.
(b) Any Rights Certificate issued pursuant to Section 3(a),
Section 3(b) or Section 22 hereof that represents Rights Beneficially Owned by
any Person known to be:
(i) an Acquiring Person or any Associate or Affiliate of
an Acquiring Person,
(ii) a transferee of an Acquiring Person (or of any such
Associate or Affiliate) who becomes a transferee after the Acquiring
Person becomes such, or
(iii) a transferee of an Acquiring Person (or of any such
Associate or Affiliate) who becomes a transferee prior to or
concurrently with the Acquiring Person becoming such and receives such
Rights pursuant to either:
(A) a transfer (whether or not for
consideration) from the Acquiring Person to holders of equity
interests in such Acquiring Person or to any Person with whom
such Acquiring Person has any continuing agreement,
arrangement or understanding regarding the transferred Rights,
or
(B) a transfer which the Board of Directors of
the Company has determined is part of a plan, arrangement or
understanding which has as a primary purpose or effect
avoidance of Section 7(e) hereof,
and any Rights Certificate issued pursuant to Section 6 or Section 11 hereof
upon transfer, exchange, replacement or adjustment of any other Rights
Certificate referred to in this sentence, shall contain (to the extent feasible)
the following legend, modified as applicable to such Person:
The Rights represented by this Rights Certificate are or were
Beneficially Owned by a Person who was or became an Acquiring
Person or an Affiliate or Associate of an Acquiring Person (as
such terms are defined in the Rights Agreement). Accordingly,
this Rights Certificate and the Rights represented hereby may
become null and void in the circumstances specified in Section
7(e) of such Agreement.
SECTION 5. COUNTERSIGNATURE AND REGISTRATION.
(a) The Rights Certificates shall be executed on behalf of the
Company by its Chairman of the Board, its President or any Vice President,
either manually or by facsimile signature, and
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shall have affixed thereto the Company's seal or a facsimile thereof which shall
be attested by the Secretary or an Assistant Secretary of the Company, either
manually or by facsimile signature. The Rights 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 Rights Certificates shall cease to be such officer of the Company before
countersignature by the Rights Agent and issuance and delivery by the Company,
such Rights Certificates, nevertheless, may be countersigned by the Rights Agent
and issued and delivered by the Company with the same force and effect as though
the Person who signed such Rights Certificates had not ceased to be such officer
of the Company; and any Rights Certificates may be signed on behalf of the
Company by any Person who, at the actual date of the execution of such Rights
Certificate, shall be a proper officer of the Company to sign such Rights
Certificate, although at the date of the execution of this Rights Agreement any
such Person was not such an officer.
(b) Following the respective Distribution Dates, the Rights Agent
will keep or cause to be kept, at its principal office or offices designated as
the appropriate place for surrender of Rights Certificates upon exercise or
transfer, books for registration and transfer of the Rights Certificates issued
hereunder. Such books shall show the names and addresses of the respective
holders of the Rights Certificates, the number of Rights evidenced on its face
by each of the Rights Certificates and the date of each of the Rights
Certificates.
SECTION 6. TRANSFER, SPLIT UP, COMBINATION AND EXCHANGE OF RIGHTS
CERTIFICATE; MUTILATED, DESTROYED, LOST OR STOLEN RIGHTS
CERTIFICATES.
(a) Subject to the provisions of Section 4(b), Section 7(e) and
Section 14 hereof, at any time after the Close of Business on the respective
Distribution Dates, and at or prior to the Close of Business on the Expiration
Date, any Rights Certificate or Certificates issued following the respective
Distribution Dates may be transferred, split up, combined or exchanged for
another Rights Certificate or Certificates, entitling the registered holder to
purchase a like number of shares of Common Stock (or, following a Triggering
Event, other securities, cash or other assets, as the case may be) as the Rights
Certificate or Certificates surrendered then entitled such holder (or former
holder in the case of a transfer) to purchase. Any registered holder desiring to
transfer, split up, combine or exchange any Rights Certificate or Certificates
shall make such request in writing delivered to the Rights Agent and shall
surrender the Rights Certificate or Certificates to be transferred, split up,
combined or exchanged at the principal office or offices of the Rights Agent
designated for such purpose. Neither the Rights Agent nor the Company shall be
obligated to take any action whatsoever with respect to the transfer of any such
surrendered Rights Certificate until the registered holder shall have completed
and signed the Certificate contained in the form of assignment on the reverse
side of such Rights Certificate and shall have provided such additional evidence
of the identity of the Beneficial Owner (or former Beneficial Owner) or
Affiliates or Associates thereof as the Company shall reasonably request.
Thereupon the Rights Agent shall, subject to Section 4(b), Section 7(e) and
Section 14 hereof, countersign and deliver to the Person entitled thereto a
Rights Certificate or Rights Certificates, as the case may be, as so requested.
The Company may require payment of a sum sufficient to cover any tax or
governmental charge that
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may be imposed in connection with any transfer, split up, combination or
exchange of Rights Certificates.
(b) Upon receipt by the Company and the Rights Agent of evidence
reasonably satisfactory to them of the loss, theft, destruction or mutilation of
a Rights Certificate, and, in case of loss, theft or destruction, of indemnity
or security reasonably satisfactory to them, and reimbursement to the Company
and the Rights Agent of all reasonable expenses incidental thereto, and upon
surrender to the Rights Agent and cancellation of the Rights Certificate if
mutilated, the Company will execute and deliver a new Rights Certificate of like
tenor to the Rights Agent for countersignature and delivery to the registered
owner in lieu of the Rights Certificate so lost, stolen, destroyed or mutilated.
SECTION 7. EXERCISE OF RIGHTS; PURCHASE PRICE; EXPIRATION DATE OF RIGHTS.
(a) Subject to Section 7(e) hereof, the registered holder of any
Rights Certificate may exercise the Rights evidenced thereby (except as
otherwise provided herein including, without limitation, the restrictions on
exercisability set forth in Section 9(c), Section 11 (b) and Section 23(a)
hereof) in whole or in part at any time after the Initial Distribution Date in
the case of the Initial Rights and the Second Distribution Date in the case of
the Second Rights upon surrender of the respective Rights Certificate, with the
form of election to purchase and the certificate on the reverse side thereof
duly executed, to the Rights Agent at the principal office or offices of the
Rights Agent designated for such purpose, together with payment of the aggregate
Purchase Price with respect to the total number of shares (or other securities,
cash or other assets, as the case may be) as to which such surrendered Rights
are then exercisable, at or prior to the Expiration Date.
(b) The Purchase Price for each share of Common Stock pursuant to
the exercise of a Right shall be determined in the manner provided in Section
11(a)(ii) and shall be payable in accordance with paragraph (c) below.
(c) Upon receipt of a Rights Certificate representing exercisable
Rights, with the form of election to purchase and the certificate duly executed,
accompanied by payment, with respect to each Right so exercised, of the Purchase
Price per share of Common Stock (or other shares, securities, cash or other
assets, as the case maybe) to be purchased asset forth below and an amount equal
to any applicable transfer tax, the Rights Agent shall subject to Section 20(j)
hereof, thereupon promptly
(i) (A) requisition from any transfer agent of
the shares of Common Stock (or make available, if the
Rights Agent is the transfer agent for such shares)
certificates for the total number of shares of Common
Stock to be purchased and the Company hereby
irrevocably authorizes its transfer agent to comply
with all such requests, or
(B) if the Company shall have elected to deposit
the total number of shares of Common Stock issuable
upon exercise of the Rights hereunder
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with a depositary agent, requisition from the
depositary agent depositary receipts representing
such number of shares of Common Stock as are to be
purchased (in which case certificates for the shares
of Common Stock represented by such receipts shall be
deposited by the transfer agent with the depositary
agent) and the Company will direct the depositary
agent to comply with such request,
(ii) requisition from the Company the amount of cash, if
any, to be paid in lieu of fractional shares in accordance with Section
14 hereof,
(iii) requisition from the Company the amount of other
securities, cash or assets to be paid in lieu of shares of Common Stock
pursuant to an adjustment required under Section 11 (b) hereof,
(iv) after receipt of such certificates, depositary
receipts, other securities, cash or assets, cause the same to be
delivered to, or upon the order of, the registered holder of such
Rights Certificate, registered in such name or names as may be
designated by such holder, and
(v) after receipt thereof, deliver such cash, if any, to,
or upon the order of, the registered holder of such Rights Certificate.
The payment of the Purchase Price (as such amount may be reduced pursuant to
Section 11 (b) hereof) shall be made in cash or by certified bank check, bank
draft or money order payable to the order of the Company. In the event that the
Company is obligated to issue other securities of the Company, pay cash and/or
distribute other property pursuant to Section 11 (b) hereof, the Company will
make all arrangements necessary so that such other securities, cash and/or other
property are available for distribution by the Rights Agent, if and when
appropriate.
(d) In case the registered holder of any Rights Certificate shall
exercise less than all the Rights evidenced thereby; a new Rights Certificate
evidencing Rights equivalent to the Rights remaining unexercised shall be issued
by the Rights Agent and delivered to, or upon the order of, the registered
holder of such Rights Certificate, registered in such name or names as may be
designated by such holder, subject to the provisions of Section 6 and Section 14
hereof.
(e) Notwithstanding anything in this Agreement to the contrary,
from and after the first occurrence of a Triggering Event, any Rights
Beneficially Owned by:
(i) an Acquiring Person or an Associate or Affiliate of
an Acquiring Person.
(ii) a transferee of an Acquiring Person (or of any such
Associate or Affiliate) who becomes a transferee after the Acquiring
Person becomes such, or
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(iii) a transferee of an Acquiring Person (or of any such
Associate or Affiliate) who becomes a transferee prior to or
concurrently with the Acquiring Person becoming such and receives such
Rights pursuant to either:
(A) a transfer (whether or not for
consideration) from the Acquiring Person to holders of equity
interests in such Acquiring Person or to any Person with whom
the Acquiring Person has any continuing agreement, arrangement
or understanding regarding the transferred Rights or
(B) a transfer which the Board of Directors of
the Company has determined is part of a plan, arrangement or
understanding which has as a primary purpose or effect the
avoidance of this Section 7(e),
shall become null and void without any further action and no holder of such
Rights shall have any rights whatsoever with respect to such Rights, whether
under any provision of this Agreement or otherwise. The Company shall use all
reasonable efforts to insure that the provisions of this Section 7(e) and
Section 4(b) hereof are complied with, but shall have no liability to any holder
of Rights Certificates or other Person as a result of its failure to make any
determinations with respect to an Acquiring Person or its Affiliates, Associates
or transferees hereunder.
(f) Notwithstanding anything in this Agreement to the contrary,
neither the Rights Agent nor the Company shall be obligated to undertake any
action with respect to a registered holder 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 Company shall reasonably request.
SECTION 8. CANCELLATION AND DESTRUCTION OF RIGHTS CERTIFICATES.
All Rights Certificates surrendered for the purpose of exercise,
transfer, split up, combination or exchange shall, if surrendered to the Company
or any of its agents, be delivered to the Rights Agent for cancellation or in
canceled form, or, if surrendered to the Rights Agent, shall be canceled by it,
and no Rights Certificates shall be issued in lieu thereof except as expressly
permitted by any of the provisions of this Agreement. The Company shall deliver
to the Rights Agent for cancellation and retirement, and the Rights Agent shall
so cancel and retire, any other Rights Certificate purchased or acquired by the
Company otherwise than upon the exercise thereof. The Rights Agent shall deliver
all canceled Rights Certificates to the Company, or shall, at the
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written request of the Company, destroy such canceled Rights Certificates, and
in such case shall deliver a certificate of destruction thereof to the Company.
SECTION 9. RESERVATION AND AVAILABILITY OF CAPITAL STOCK.
(a) The Company covenants and agrees that it will cause to be
reserved and kept available out of its authorized and unissued shares of Common
Stock (and, following the occurrence of a Triggering Event, out of its other
securities or out of its authorized and issued shares held in its treasury), the
number of shares of Common Stock (and, following the occurrence of a Triggering
Event, other securities) that, as provided in this Agreement including Section
11 (b) hereof, will be sufficient to permit the exercise in full of all
outstanding Rights.
(b) If the shares of Common Stock (and, following the occurrence
of a Triggering Event, other securities) issuable and deliverable upon the
exercise of the Rights are listed on any national securities exchange or Nasdaq
or other system then in use, the Company shall use its best efforts to cause,
from and after such time as the Rights become exercisable, all securities
reserved for such issuance to be listed on such exchange or Nasdaq or other
system then in use upon official notice of issuance upon such exercise.
(c) The Company shall use its best efforts to:
(i) file, as soon as practicable following the earliest
date after the first occurrence of a Section 11(a)(ii) Event on which
the consideration to be delivered by the Company upon exercise of the
Rights has been determined in accordance with Section 11(b) hereof, or
as soon as is required by law following a Distribution Date, as the
case may be, a registration statement under the Act, with respect to
the securities purchasable upon exercise of the Rights on an
appropriate form,
(ii) cause such registration statement to become effective
as soon as practicable after such filing, and
(iii) cause such registration statement to remain effective
(with a prospectus at all times meeting the requirements of the Act)
until the earlier of:
(A) the date as of which the Rights are no
longer exercisable for such securities, and
(B) the date of the expiration of the Rights.
The Company will also take such action as may be appropriate under, or to ensure
compliance with, the securities or "blue sky" laws of the various states in
connection with the exercisability of the Rights. The Company may temporarily
suspend, for a period of time not to exceed one hundred twenty (120) days after
the date set forth in clause (i) of the first sentence of this Section 9(c), the
exercisability of the Rights in order to prepare and file such registration
statement and permit it to
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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, if
necessary, until a registration statement has been declared effective.
(d) The Company covenants and agrees that it will take all such
action as may be necessary to ensure that all shares of Common Stock (and,
following the occurrence of a Triggering Event, other securities) delivered upon
exercise of Rights shall, at the time of delivery of the certificates for such
shares (or other securities) (subject to payment of the Purchase Price), be duly
and validly authorized and issued.
(e) The Company further covenants and agrees that it will pay when
due and payable any and all federal and state transfer taxes which may be
payable in respect of the issuance or delivery of the Rights Certificates and of
any certificates for a number of shares of Common Stock (or other securities, as
the case may be) upon the exercise of Rights. The Company shall not, however, be
required to pay any transfer tax which may be payable in respect of any transfer
or delivery of Rights Certificates to a Person other than, or the issuance or
delivery of a number of shares of Common Stock (or other securities, as the case
may be) in respect of a name other than that of, the registered holder of the
Rights Certificates evidencing Rights surrendered for exercise or to issue or
deliver any certificates for a number of shares of Common Stock (or any other
securities, as the case may be) in a name other than that of the registered
holder upon the exercise of any Rights until such tax shall have been paid (any
such tax being payable by the holder of such Rights Certificate at the time of
surrender) or until it has been established to the Company's satisfaction that
no such tax is due.
SECTION 10. COMMON STOCK RECORD DATE.
Each Person in whose name any certificate for a number of shares of
Common Stock (or other securities, as the case may be) is issued upon the
exercise of Rights shall for all purposes be deemed to have become the holder of
record of such shares of Common Stock (or other securities, as the case may be)
represented thereby on, and such certificate shall be dated, the date upon which
the Rights Certificate evidencing such Rights was duly surrendered and payment
of the Purchase Price (and all applicable transfer taxes) was made: provided,
however, that if the date of such surrender and payment is a date upon which the
Common Stock (or other securities, as the case may be) transfer books of the
Company are closed, such Person shall be deemed to have become the record holder
of such shares (fractional or otherwise) on, and such certificate shall be
dated, the next succeeding Business Day on which the Common Stock (or other
securities, as the case may be) transfer books of the Company are open. Prior to
the exercise of the Rights evidenced thereby, the holder of a Rights Certificate
shall not be entitled to any rights of a shareholder of the Company with respect
to shares for which the Rights shall be exercisable, including, without
limitation, the right to vote, to receive dividends or other distributions or to
exercise any preemptive rights, and
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shall not be entitled to receive any notice of any proceedings of the Company,
except as provided herein.
SECTION 11. ADJUSTMENT OF PURCHASE PRICE, NUMBER AND KIND OF SHARES OR
NUMBER OF RIGHTS.
The Purchase Price, the number and kind of shares covered by each Right
and the number of Rights outstanding are subject to adjustment from time to time
as provided in this Section 11.
(a) (i) Subject to Section 11(b)(i) hereof, in the event
that, at any time after the Close of Business on the Initial
Distribution Date in the case of the Initial Rights and the Second
Distribution Date in the case of the Second Rights and prior to the
Close of Business on the Expiration Date, the Company shall:
(A) declare or pay a dividend on the Common
Stock payable in shares of Common Stock,
(B) subdivide the outstanding shares of Common
Stock,
(C) combine the outstanding shares of Common
Stock into a smaller number of shares of Common Stock,
(D) issue any shares of its capital stock in a
reclassification of its Common Stock (including any such
reclassification in connection with a consolidation or merger
in which the Company is the continuing or surviving
corporation), except as otherwise provided in this Section 11
(a) and Section 7(e) hereof,
then and in such event, the number of shares of Common Stock and the
number and kind of other securities or property, as the case may be,
issuable upon the exercise of a Right on such date shall be
proportionately adjusted so that the holder of any Right exercised on
or after such date shall be entitled to receive, upon the exercise
thereof and payment of the Purchase Price, the aggregate number of
shares of Common Stock and the number and kind of other securities or
property, as the case may be, that, if such Right had been exercised
immediately prior to such date and at a time when such Right was
exercisable and the transfer books of the Company were open, such
holder would have owned upon such exercise and would have been entitled
to receive by virtue of such dividend, subdivision, combination or
reclassification. If an event occurs which would require an adjustment
under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the
adjustment provided for in this Section 11(a)(i) shall be in addition
to, and shall be made prior to, any adjustment required pursuant to
Section 11(a)(ii) hereof.
(ii) In the event that any Person, alone or together with
its Affiliates and Associates, shall, at any time after the Record
Date, become an Acquiring Person then,
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promptly following the occurrence of each such Section 11(a)(ii) Event,
proper provision shall be made so that each holder of an Initial Right
(except as provided below and in Section 7(e) hereof) shall thereafter
have the right to receive, upon exercise thereof, a number of shares of
Common Stock equal to ten shares of Common Stock multiplied by a
fraction. the numerator of which is the number of shares of Common
Stock outstanding on the Stock Acquisition Date, and the denominator of
which is the number of initial Rights outstanding on the Initial Stock
Acquisition Date that are not Beneficially Owned by the Acquiring
Person or its Affiliates or Associates. In the event that any Person,
alone or together with its Affiliates and Associates, shall, at any
time on or after the Initial Distribution Date, become an Acquiring
Person then, promptly following the occurrence of each such Section
11(a)(ii) Event, proper provisions shall be made so that each holder of
a Second Right (except as provided below and in Section 7(e) hereof)
shall thereafter have the right to receive, upon exercise thereof, a
number of shares of Common Stock equal to ten shares of Common Stock
multiplied by a fraction, the numerator of which is the number of
shares of Common Stock outstanding on the Second Stock Acquisition Date
plus the number of shares of Common Stock issuable upon exercise of
outstanding and exercisable Initial Rights, and the denominator of
which is the number of Second Rights outstanding on the Second
Acquisition Date that are not Beneficially Owned by the Acquiring
Person or its Affiliates or Associates. The price (which following such
first occurrence, shall thereafter be referred to as the "Purchase
Price") for the exercise of each Right shall be $.01 per share of the
Common Stock.
(b) In the event that the number of shares of Common Stock which
are authorized by the Company's articles of incorporation but not outstanding or
reserved for issuance for purposes other than upon exercise of the Rights are
not sufficient to permit the exercise in full of the Rights in accordance with
Section 11(a)(ii) following the respective Distribution Dates, the Company, in
the discretion of the Board of Directors, shall either:
(i) Subject to any required shareholder approval, effect
a reverse stock split or otherwise combine the outstanding shares of
Common Stock such that, after giving effect to such reverse split or
combination, the Company has a sufficient number of authorized but
unissued shares of Common Stock for issuance upon exercise of
outstanding and exercisable Rights; or
(ii) (A) Determine the excess of
(I) the Current Market Price of the
shares of Common Stock issuable upon the exercise of
a Right over
(II) the Purchase Price (such excess,
the "Spread"), and
(B) with respect to each Right (other than
Rights which have become void pursuant to Section 7(e)
hereof), make adequate provision to substitute for such shares
of, upon payment of the applicable Purchase Price,
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(I) cash,
(II) a reduction in the Purchase Price,
(III) preferred stock or other equity
securities of the Company (including, without
limitation, shares, or units of shares, of preferred
stock which the Board of Directors of the Company has
deemed to have substantially the same value as shares
of Common Stock (such shares of preferred stock to be
referred to as "Common Stock Equivalents")),
(IV) debt securities of the Company,
(V) other assets, or
(VI) any combination of the foregoing,
having an aggregate value, when added to the value of the
shares of Common Stock actually issued upon exercise of such
right, equal to the Current Market Price (less the amount of
any reduction in the Purchase Price), where such aggregate
value has been determined by tote Board of Directors of the
Company based upon the advice of a recognized investment
banking firm selected by the Board of Directors of the
Company; provided, however, if the Company shall not have made
adequate provision to deliver value pursuant to clause (ii)
above within thirty (30) days following the Section 11(a)(ii)
Event, then the Company shall be obligated to deliver, to the
extent permitted by applicable law and any material agreements
in effect to which the Company is a party, upon the surrender
for exercise of a Right and without requiring payment of the
Purchase Price, shares of Common Stock (to the extent
available) and then, if necessary, cash, which shares and/or
cash have an aggregate value equal to the Spread. If the Board
of Directors of the Company shall determine that it is likely
that sufficient additional shares of Common Stock could be
authorized for issuance upon exercise in full of the Rights or
that the reverse stock split or other combination of
outstanding shares contemplated by Section 11(b)(i) could be
authorized, the thirty (30) day period set forth above may be
extended to the extent necessary, but not more than ninety
(90) days after the Section 11(a)(ii) Event, in order that the
Company may seek shareholder approval for the authorization of
such additional shares or for authorization of the reverse
stock split or other combination of shares (such period, as it
may be extended, the "Substitution Period").
(iii) To the extent that the Company determines that some
action need be taken pursuant to subparagraphs (i) or (ii) of this
Section 11(b), the Company (x) shall provide, subject to Section 7(e)
hereof, that such action shall apply uniformly to all outstanding
Rights except as expressly provided herein, and (y) may suspend the
exercisability of the
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Rights until the expiration of the Substitution Period in
order to seek any authorization of additional shares or a
reverse stock split or other combination of outstanding shares
and/or to decide the appropriate form of action to be taken
pursuant to such subparagraphs (i) and (ii) and to determine
the value of any distribution. In the event of any such
suspension, the Company shall issue a public announcement
stating that the exercisability of the Rights has been
temporarily suspended, as well as a public announcement at
such time as the suspension is no longer in effect. For
purposes of Section 11(b)(ii), the value of the shares of
Common Stock shall be the Current Market Price per share of
the Common Stock on the date of the Section 11(a)(ii) Event
and the value per share or fractional value of any Common
Stock Equivalent shall be deemed to have the same value as the
Common Stock on such date. The Board of Directors of the
Company may, but shall not be required to, establish
procedures to allocate the right to receive shares of Common
Stock upon the exercise of the Rights among the holders of the
Rights pursuant to this Section 11(b).
(c) Anything herein to the contrary notwithstanding, no adjustment
in the number of shares of Common Stock purchasable upon exercise of a Right
pursuant to Section 11(a)(ii) hereof or in the Purchase Price or Spread pursuant
to Section 11(b) hereof shall be required unless such adjustment would require
an increase or decrease of at least one percent (1%) in the aggregate number of
shares or in the Spread or Purchase Price; provided, however, that any
adjustments which by reason of this Section 11(c) are not required to be made
shall be carried forward and taken into account in any subsequent adjustments.
All calculations under this Section 11 shall be made to the nearest cent or to
the nearest one-hundredth of a share of Common Stock. Notwithstanding the first
sentence of this Section 11(c), any adjustment required by this Section 11 shall
be made no later than the earlier of
(i) three (3) years from the date of the transaction
which mandates such adjustment or
(ii) the Expiration Date.
(d) If as a result of an adjustment made pursuant to Section 11(b)
or Section 13(a) hereof, the holder of any Right thereafter exercised shall
become entitled to receive any shares of capital stock other than Common Stock,
thereafter the number of such other shares so receivable upon exercise of any
Right and the Purchase Price thereof shall be subject to adjustment from time to
time in a manner and on terms as nearly equivalent as practicable to the
provisions with respect to the Common Stock contained in Sections 11(a), (b),
(c), (e), (f), (i) and (j), and the provisions of Sections 7, 9, 10, 13 and 14
hereof with respect to the Common Stock shall apply on like terms to any such
other shares.
(e) All Rights originally issued by the Company subsequent to any
adjustment made to the number of shares of Common Stock purchasable upon
exercise of a Right pursuant to Section 11(a)(ii) hereof shall evidence the
right to purchase the number of shares of Common Stock purchasable from time to
time hereunder upon exercise of the Rights, all subject to further adjustment as
provided herein.
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(f) In the event of a reverse stock split or other combination of
outstanding shares of Common Stock made subsequent to the Initial Distribution
Date and before the Second Distribution Date, then and in such event the number
of Second Rights shall be adjusted so that the holder of any Second Right shall
hold a number of Second Rights equal to the number of shares of Common Stock
that such Second Right holder would own after completion of the reverse stock
split or other combination of outstanding shares of Common Stock. The Company
may elect on or after the date of any adjustment of the number of shares of
Common Stock purchasable upon exercise of a Right pursuant to Section 11(a)(ii)
hereof to adjust the number of Rights, in lieu of any adjustment in the number
of shares of Common Stock purchasable upon the exercise of a Right. The
aggregate of the Rights outstanding after the adjustment in the number of Rights
shall be exercisable for the number of shares of Common Stock for which the
aggregate of the Rights was exercisable immediately prior to such adjustment.
Adjustments in Rights shall be calculated to the nearest one-hundredth of a
Right. 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 number of shares of Common Stock purchasable upon
exercise is adjusted or any day thereafter, but if the Rights Certificates have
been issued the record date shall be at least ten (10) days later than the date
of the public announcement. If Rights Certificates have been issued, upon each
adjustment of the number of Rights pursuant to this Section 11(f), the Company
shall, as promptly as practicable, cause to be distributed to holders of record
of Rights Certificates on such record date Rights Certificates evidencing,
subject to Section 14 hereof, the additional Rights to which such holders shall
be entitled as a result of such adjustment, or, at the option of the Company,
shall cause to be distributed to such holders of record in substitution and
replacement for the Rights Certificates held by such holders prior to the date
of adjustment, and upon surrender thereof, if required by the Company, new
Rights Certificates evidencing all the Rights to which such holders shall be
entitled after such adjustment. Rights Certificates to be so distributed shall
be issued, executed and countersigned in the manner provided for herein (and may
bear, at the option of the Company, the adjusted number of shares of Common
Stock purchasable upon exercise of a Right) and shall be registered in the names
of the holders of record of Rights Certificates on the record date specified in
the public announcement.
(g) Irrespective of any adjustment or change in the number of
shares of Common Stock issuable upon the exercise of the Rights, the Rights
Certificates theretofore and thereafter issued may continue to express the
number of shares which were expressed in the original Rights Certificates issued
hereunder.
(h) Before taking any action that would cause an adjustment
reducing the Purchase Price below the then par value, if any, of the Common
Stock or other shares of Common Stock Equivalents issuable upon exercise of the
Rights. the Company shall take any corporate action which may, in the opinion of
its counsel, be necessary in order that the Company may validly and legally
issue fully paid and nonassessable shares of Common Stock or Common Stock
Equivalents at such adjusted Purchase Price. In the event that it appears that
the issuance of shares of Common Stock at the Purchase Price called for herein
would result in issuance of shares of Common Stock
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that were not validly issued fully paid and nonassessable shares of Common
Stock, the Company may issue Common Stock Equivalents in the manner provided in
Section 11(b)(ii)(B)(III) hereof.
(i) In any case in which this Section 11 shall require that an
adjustment in the number of shares of Common Stock or other capital stock or
securities of the Company, if any, issuable upon exercise of the Rights shall be
made effective as of a record date for a specified event, the Company may elect
to defer until the occurrence of such event the issuance to the holder of any
Right exercised after such record date the number of shares of Common Stock and
other capital stock or securities of the Company, if any, issuable upon such
exercise over and above the number of shares of Common Stock and other capital
stock or securities of the Company, if any, issuable upon such exercise on the
basis of the number of shares of Common Stock purchasable upon exercise of a
Right in effect prior to such adjustment; provided, however, that the Company
shall deliver to such holder a due xxxx or other appropriate instrument
evidencing such holder's right to receive such additional shares (fractional or
otherwise) or securities upon the occurrence of the event requiring such
adjustment.
(j) Anything in this Section 11 to the contrary notwithstanding,
the Company shall be entitled to make such adjustments in the Purchase Price or
number of shares of Common Stock purchasable upon exercise of a Right, in
addition to those adjustments expressly required by this Section 11, as and to
the extent that in their judgment the Board of Directors of the Company shall
determine to be advisable in order that any
(i) consolidation or subdivision of the Common Stock,
(ii) issuance wholly for cash of any shares of Common
Stock at less than the Current Market Price,
(iii) issuance wholly for cash of shares of preferred stock
or other securities which by their terms are convertible into or
exchangeable for shares of Common Stock,
(iv) stock dividends or
(v) issuance of rights, options or warrants referred to
in this Section 11,
hereafter made by the Company to holders of its Common Stock shall not be
taxable to such shareholders.
(k) The Company covenants and agrees that it shall not, at any
time on or after the Initial Distribution Date with respect to the Initial
Rights or on or after the Second Distribution Date with respect to the Second
Rights,
(i) consolidate with any other Person,
(ii) merge with or into any other Person,
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(iii) engage in a share exchange with any other Person,
(iv) sell or transfer (or permit any Subsidiary to sell or
transfer), in one transaction, or a series of related transactions,
assets or earning power aggregating more than 50% of the assets or
earning power of the Company and its Subsidiaries (taken as a whole)
to any other Person or Persons, if
(A) at the time of or immediately after such
consolidation, merger, share exchange, sale or transfer,
there are any rights, warrants or other instruments or
securities outstanding or agreements in effect which would
substantially diminish or otherwise eliminate the benefits
intended to be afforded by the Rights or
(B) prior to, simultaneously with or immediately
after such consolidation, merger, share exchange, sale or
transfer, 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.
(1) The Company covenants and agrees that, after the Initial
Distribution Date, it will not, except as permitted by Section 11(b), Section
23 or Section 27 hereof, take (or permit any Subsidiary to take) any action if
at any time such action is taken it is reasonably foreseeable that such action
will diminish substantially or otherwise eliminate the benefits intended to be
afforded by the Initial Rights. The Company covenants and agrees that, after
the Second Distribution Date, it will not, except as permitted by Section
11(b), Section 23 or Section 27 hereof, take (or permit any Subsidiary to take)
any action if at any time such action is taken it is reasonably foreseeable
that such action will diminish substantially or otherwise eliminate the
benefits intended to be afforded by the Second Rights.
(m) Anything in this Agreement to the contrary notwithstanding. in
the event that the Company shall at any time after the Record Date and prior to
the Initial Distribution Date in the case of the Initial Rights and prior to
the Second Distribution Date in the case of the Second Rights
(i) declare or pay any dividend on the outstanding shares
of Common Stock payable in shares of Common Stock,
(ii) subdivide the outstanding shares of Common Stock, or
(iii) combine the outstanding shares of Common Stock into
a smaller number of shares,
then in any such case the number of Rights associated with each share of Common
Stock then outstanding, or issued or delivered thereafter but prior to the
respective Distribution Dates, shall remain unchanged, so that the value of the
rights remaining shall represent the same proportion of
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the value of the Company as before. Rights associated with shares eliminated by
any combination of outstanding shares of Common Stock shall be canceled by
operation of such combination.
SECTION 12. CERTIFICATE OF ADJUSTED NUMBER OF SHARES.
Whenever an adjustment is made as provided in Section 11 or Section 13
hereof, the Company shall promptly
(a) prepare a certificate setting forth such adjustment and a
brief statement of the facts accounting for such adjustment,
(b) file with the Rights Agent, and with each transfer agent for
the Common Stock, a copy of such certificate, and
(c) mail a brief summary thereof to each holder of a Rights
Certificate (or, if prior to the Second Distribution Date, to each holder of a
certificate representing shares of Common Stock and each holder of any
outstanding Initial Rights) in accordance with Section 26 hereof.
The Rights Agent shall be fully protected in relying on any such certificate
and on any adjustment therein contained and shall not be deemed to have
knowledge of any adjustment unless and until it shall have received such
certificate.
SECTION 13. CONSOLIDATION, MERGER, SHARE EXCHANGE OR SALE OR TRANSFER OF
ASSETS OR EARNING POWER.
(a) In the event that, following the Initial Distribution Date
with respect to the Initial Rights or the Second Distribution Date with respect
to the Second Rights, directly or indirectly,
(i) the Company shall consolidate with, or merge with and
into, any other Person and the Company shall not be the continuing or
surviving corporation of such consolidation or merger,
(ii) any Person shall consolidate with, or merge with or
into, the Company, or engage in a share exchange with the Company, and
the Company shall be the continuing or surviving corporation of such
consolidation, merger or share exchange and, in connection with such
consolidation, merger or share exchange, all or part of the
outstanding shares of Common Stock shall be changed into or exchanged
for stock or other securities of any other Person (or of the Company)
or cash or any other property, or
(iii) the Company shall sell or otherwise transfer (or one
or more of its Subsidiaries shall sell or otherwise transfer), in one
transaction or a series of related transactions, assets or earning
power aggregating more than 50% of the assets or earning power of the
Company and its Subsidiaries (taken as a whole) to any Person or
Persons,
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then, and in each such case, promptly following the occurrence of each such
Section 13 Event, proper provision shall be made so that:
(iv) each holder of a Right, except as provided in Section
7(e) hereof, shall thereafter have the right to receive, upon the
exercise thereof at the then current Purchase Price in accordance with
the terms of this Agreement, such number of validly authorized and
issued, fully paid, non-assessable and freely tradeable shares of
Common Stock of the Principal Party (as such term is defined in
Section 1(v)), not subject to any liens, encumbrances, rights of first
refusal or other adverse claims, as shall be equal to the product of
ten times the result obtained by dividing the Current Market Price of
a share of Common Stock by the Current Market Price of a share of
Common Stock of the Principal Party multiplied by a fraction the
numerator of which is the number of shares of Common Stock outstanding
on the Stock Acquisition Date with respect to such Right, and the
denominator of which is the number of Rights outstanding on the Stock
Acquisition Date that caused the Triggering Event with respect to the
respective Rights that are not Beneficially Owned by the Acquiring
Person or its Affiliates or Associates, provided, however, that the
Purchase Price and the number of shares of Common Stock of such
Principal Party issuable upon the exercise of each Right shall be
further adjusted as provided in Section 11 (d) of this Agreement to
reflect any events occurring in respect of such Principal Party after
the date of such Section 13 Event;
(v) such Principal Party shall thereafter be liable for,
and shall assume, by virtue of such Section 13 Event, all the
obligations and duties of the Company pursuant to this Agreement;
(vi) the term "Company" shall thereafter be deemed to
refer to such Principal Party, it being specifically intended that the
provisions of Section 11 hereof shall apply only to such Principal
Party following the first occurrence of a Section 13 Event;
(vii) 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 accordance with Section 9 hereof) 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 that, upon the subsequent occurrence of any merger,
consolidation, share exchange, sale or transfer of assets 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 as provided in
this Section 13(a), such cash, shares, rights, dividends, warrants and
other property which such holder would have been entitled to receive
had such holder, at the time of such transaction, owned the Common
Stock of the Principal Party receivable upon the exercise of a Right
pursuant to this Section 13(a); and
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(viii) the provisions of Section 11(a)(ii) hereof shall be
of no effect following the first occurrence of any Section 13 Event,
except as they apply to determination of the Purchase Price.
(b) The Company shall not consummate any such consolidation,
merger, share exchange, sale or transfer unless prior thereto the Company and
the Principal Party shall have exercised 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, that the Principal
Party has a sufficient number of authorized shares of its Common Stock which
have not been issued or reserved for issuance to permit the exercise in full of
the Rights in accordance with this Section 13 and unless prior thereto the
Company and such Principal Party shall have executed and delivered to the
Rights Agent a supplemental agreement providing for the terms set forth in
paragraph (a) of this Section 13 and further providing that, as soon as
practicable after the date of any consolidation, merger, share exchange or sale
of assets mentioned in paragraph (a) of this Section 13, the Principal Party
will
(i) prepare and file a registration statement under the
Act, with respect to the Rights and the securities purchasable upon
exercise of the Rights on an appropriate form, and will use its best
efforts to cause such registration statement to
(A) become effective as soon as practicable
after such filing and
(B) remain effective (with a prospectus at all
times meeting the requirements of the Act) until the Final
Expiration Date;
(ii) use its best efforts to qualify or register the
Rights and the securities purchasable upon exercise of the Rights
under the blue sky laws of such jurisdictions as may be necessary or
appropriate;
(iii) use its best efforts, if the Common Stock of the
Principal Party shall be listed or admitted to trading on any national
securities exchange or Nasdaq, to list or admit to trading (or
continue the listing of) the Rights and the securities purchasable
upon exercise of the Rights on such securities exchange or Nasdaq, of,
if the Common Stock of the Principal Party shall not be listed or
admitted to trading on any such national securities exchange or
Nasdaq, to cause the Rights and the securities receivable upon
exercise of the Rights to be reported by such other system then in
use;
(iv) deliver to holders of the Rights historical
financial statements for the Principal Party and each of its
Affiliates which comply in all respects with the requirements for
registration on Form 10 under the Exchange Act; and
(v) obtain waivers of any rights of first refusal or
preemptive rights in respect of the Common Stock of the Principal
Party subject to purchase upon exercise of outstanding Rights.
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(c) The provisions of this Section 13 shall similarly apply to
successive mergers, consolidations, share exchanges or sales or other
transfers. In the event that a Section 13 Event shall occur at any time after
the occurrence of a Section 11(a)(ii) Event, the Rights which have not
theretofore been exercised shall thereafter become exercisable in the manner
described in Section 13(a).
(d) In case the Principal Party has provision in any of its
authorized securities or in its certificate or articles of incorporation or
bylaws or other instrument governing its corporate affairs, which provision
would have the effect of
(i) causing such Principal Party to issue (other than to
holders of Rights pursuant to this Section 13), 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 thereof (determined
pursuant to Section 1(j) hereof) or securities exercisable for, or
convertible into, Common Stock of such Principal Party at less than
such then Current Market Price, or
(ii) providing for any special payment, tax or similar
provision 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 have been canceled, 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) The Company covenants and agrees that it shall not, at any
time after a Person first becomes an Acquiring Person, enter into any
transaction of the type contemplated by (i) - (iii) of Section 13(a) hereof if
(x) at the time of or immediately after such consolidation, merger, share
exchange, sale, transfer or other transaction 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, (y) prior to, simultaneously with or immediately after
such consolidation, merger, share exchange, sale, transfer or other
transaction, 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 or Associates or (z) the form or nature of organization of the
Principal Party would preclude or limit the exercisability of the Rights.
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SECTION 14. FRACTIONAL RIGHTS AND FRACTIONAL SHARES.
(a) The Company shall not be required to issue fractions of
Rights or to distribute Rights Certificates which evidence fractional Rights.
In lieu of such fractional Rights, there shall be paid to the registered
holders of the Rights Certificates with regard to which such fractional Rights
would otherwise be issuable, an amount in cash equal to the same fraction of
the current market value of a whole Right. For purposes of this Section 14(a),
the current market value of a whole Right shall be the closing price of the
Rights for the Trading Day immediately prior to the date on which such
fractional Rights would have been otherwise issuable. The closing price of the
Rights for any day shall be the last sale price, regular way, or, in case no
such sale takes place on such day, the average of the closing bid and asked
prices, regular way, in either case as reported in the principal consolidated
transaction reporting system with respect to securities listed on the principal
national securities exchange on which the Rights are listed or admitted to
trading, or if the Rights are not listed or admitted to trading on any national
securities exchange, the last quoted price or, if not so quoted, the average of
the high bid and low asked prices in the over-the-counter market, as reported
by Nasdaq or such other system then in use or, if on any such date the Rights
are not quoted by any such organization, the average of the closing bid and
asked prices as furnished by a professional market maker making a market in the
Rights selected by the Board of Directors of the Company. If on any such date
no such market maker is making a market in the Rights the fair value of the
Rights on such date as determined in good faith by the Board of Directors of
the Company shall be used.
(b) The Company shall not be required to issue fractions of shares
of Common Stock upon exercise of the Rights or to distribute certificates which
evidence fractional shares of Common Stock. In lieu of fractional shares of
Common Stock, the Company may pay to the registered holders of Rights
Certificates at the time such Rights are exercised as herein provided an amount
in cash equal to the same fraction of the current market value of one share of
Common Stock. For purposes of this Section 14(b), the current market value of
one share of Common Stock shall be the closing price of one share of Common
Stock (as determined pursuant to Section 1(j) hereof) for the Trading Day
immediately prior to the date of such exercise.
(c) The holder of a Right by the acceptance of the Rights
expressly waives his right to receive any fractional Rights or any fractional
shares upon exercise of a Right, except as permitted by this Section 14.
SECTION 15. RIGHTS OF ACTION.
All rights of action in respect of this Agreement, other than rights
of action given to the Rights Agent pursuant to Section 18 hereof, are vested
in the respective registered holders of the Rights Certificates (and, prior to
the respective Distribution Dates, the registered holders of the Common Stock);
and any registered holder of any Rights Certificate (or, prior to the
respective Distribution Dates, of the Common Stock), without the consent of the
Rights Agent or of the holder of any other Rights Certificate (or, prior to the
respective Distribution Dates, of the Common Stock), in his own behalf and for
his own benefit, may enforce, and may institute and maintain any suit, action
or proceeding against the Company to enforce, or otherwise act in respect of,
his right to exercise the Rights evidenced by such Rights Certificate (or,
prior to the respective Distribution
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Dates, such Common Stock) in the manner provided in such Rights Certificate and
in this Agreement. Without limiting the foregoing or any remedies available to
the holders of Rights, it is specifically acknowledged that the holders of
Rights would not have an adequate remedy at law for any breach of this
Agreement and shall be entitled to specific performance of the obligations
hereunder and injunctive relief against actual or threatened violations of the
obligations hereunder of any Person subject to this Agreement.
SECTION 16. AGREEMENT OF RIGHTS HOLDERS.
Every holder of a Right by accepting the same consents and agrees with
the Company arid the Rights Agent and with every other holder of a Right that:
(a) prior to the Initial Distribution Date, the Initial Rights
will be transferable only in connection with the transfer of Common Stock and
prior to the Second Distribution Date, the Second Rights will be transferrable
only in connection with the transfer of Common Stock;
(b) after the Initial Distribution Date with respect to the
Initial Rights and after the Second Distribution Date with respect to the
Second Rights, the Rights Certificates are transferable only on the registry
books of the Rights Agent if surrendered at the office or agency of the Rights
Agent designated for such purposes, duly endorsed or accompanied by a proper
instrument of transfer and with the appropriate forms and certificates fully
executed;
(c) subject to Section 6(a) and Section 7(f) hereof, the Company
and the Rights agent may deem and treat the Person in whose name a Rights
Certificate (or, prior to the Initial Distribution Date with respect to the
Initial Rights and the Second Distribution Date with respect to the Second
Rights, the associated Common Stock certificate) is registered as the absolute
owner thereof and of the Rights evidenced thereby (notwithstanding any
notations of ownership or writing on the Rights Certificates or the associated
Common Stock certificate made by anyone other than the Company or the Rights
Agent) for all purposes whatsoever, and neither the Company nor the Rights
Agent, subject to Section 7(e) hereof, shall be required to be affected by any
notice to the contrary; and
(d) notwithstanding anything in this Agreement to the contrary,
neither the Company nor the Rights Agent shall have any liability to any holder
of a Right or other Person as a result of its inability to perform any of its
obligations under this Agreement by reason of any preliminary or permanent
injunction or other order, decree or ruling issued by a court of competent
jurisdiction or by a governmental, regulatory or administrative agency or
commission, or any statute, rule, regulation or executive order promulgated or
enacted by any governmental authority, prohibiting or otherwise restraining
performance of such obligation; provided, however, the Company must use its
best efforts to have any such order, decree or ruling lifted or otherwise
overturned as soon as possible.
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SECTION 17. RIGHTS CERTIFICATE HOLDER NOT DEEMED A SHAREHOLDER.
No holder, as such, of any Rights Certificate shall be entitled to
vote, receive dividends or be deemed for any purpose the holder of the number
of shares of Common Stock or any other securities of the Company which may at
any time be issuable on the exercise of the Rights represented thereby, nor
shall anything contained herein or in any Rights Certificate be construed to
confer upon the holder of any Rights Certificate, as such, any of the rights of
a shareholder of the Company or any right to vote for the election of directors
or upon any matter submitted to shareholders at any meeting thereof, or to give
or withhold consent to any corporate action, or to receive notice of meetings
or other actions affecting shareholders (except as provided in Section 25
hereof), or to receive dividends or subscription rights, or otherwise, until
the Rights or Rights evidenced by such Rights Certificate shall have been
exercised in accordance with the provisions hereof.
SECTION 18. CONCERNING THE RIGHTS AGENT.
(a) The Company agrees to pay in a timely manner to the Rights
Agent reasonable compensation for all services rendered by it hereunder and,
from time to time, on demand of the Rights Agent, its reasonable expenses and
counsel fees and disbursements and other disbursements incurred in the
administration and execution of this Agreement and the exercise and performance
of its duties hereunder. The Company also agrees to indemnify the Rights Agent
for, and to hold it harmless against, any losses, expenses, claims, damages or
liabilities, incurred without gross negligence, bad faith or willful misconduct
on the part of the Rights Agent, for anything done or omitted by the Rights
Agent in connection with the acceptance and administration of this Agreement
and performance hereunder, including, without limitation, the costs and
expenses of defending against any claim of liability arising therefrom;
directly or indirectly, and will promptly reimburse the Rights Agent for any
legal or other expenses reasonably incurred in investigating or defending any
such loss, expense, claim, damage or liability.
(b) The Rights Agent shall be protected by the indemnity provided
by this Section 18 and shall incur no liability for or in respect of any action
taken, suffered or omitted by it in connection with its administration of this
Agreement in reliance upon any Rights Certificate or certificate for Common
Stock or for other securities of the Company, instrument of assignment or
transfer, power of attorney, endorsement, affidavit, letter, notice, direction,
consent, certificate, statement, or other paper or document believed by it to
be genuine and to be signed, executed and, where necessary. verified or
acknowledged, by the proper Person or Persons or otherwise upon the advice of
counsel as set forth in Section 20 of this Agreement.
SECTION 19. MERGER OR CONSOLIDATION OR CHANGE OF NAME OF RIGHTS AGENT.
(a) Any corporation into which the Rights Agent or any successor
Rights Agent may be merged or with which it may be consolidated, or any
corporation resulting from any merger or consolidation to which the Rights
Agent or any successor Rights Agent shall be a party, or any corporation
succeeding to the corporate trust or stock transfer business of the Rights
Agent or any successor Rights Agent, shall be the successor to the Rights Agent
under this Agreement without the execution or filing of any paper or any
further act on the part of any of the parties hereto;
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provided, however, that such corporation would be eligible for appointment as a
successor Rights Agent under the provisions of Section 21 hereof. In case at
the time such successor Rights Agent shall succeed to the agency created by
this Agreement, any of the Rights Certificates shall have been countersigned
but not delivered, any such successor Rights Agent may adopt the
countersignature of a predecessor Rights Agent and deliver such Rights
Certificates so countersigned; and in case at that time any of the Rights
Certificates shall not have been countersigned, any successor Rights Agent may
countersign such Rights Certificates either in the name of the predecessor or
in the name of the successor Rights Agent; and in all such cases such Rights
Certificates shall have the full force provided in the Rights Certificates and
in this Agreement.
(b) In case at any time the name of the Rights Agent shall be
changed and at such time any of the Rights Certificates shall have been
countersigned but not delivered, the Rights Agent may adopt the
countersignature under its prior name and deliver Rights Certificates so
countersigned; and in case at that time any of the Rights Certificates shall
not have been countersigned, the Rights Agent may countersign such Rights
Certificates either in its prior name or in its changed name; and in all such
cases such Rights Certificates shall have the full force provided in the Rights
Certificates and in this Agreement.
SECTION 20. DUTIES OF RIGHTS AGENT.
The Rights Agent undertakes the duties and obligations imposed by this
Agreement upon the following terms and conditions, by all of which the Company
and the holders of Rights Certificates, by their acceptance thereof, shall be
bound:
(a) The Rights Agent may consult with legal counsel (who may be
legal counsel for the Company), and the opinion of such counsel shall be full
and complete authorization and protection to the Rights Agent as to any action
taken or omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Agreement
the Rights Agent shall deem it necessary or desirable that any fact or matter
(including, without limitation, the identity of any Acquiring Person and the
determination of Current Market Price) be proved or established by the Company
prior to taking or suffering any action hereunder, such fact or matter (unless
other evidence in respect thereof be herein specifically prescribed) may be
deemed to be conclusively proved and established by a certificate signed by any
one of the Chairman of the Board, the President, the Chief Executive Officer,
any Vice President, the Treasurer, any Assistant Treasurer, the Controller, the
Secretary or any Assistant Secretary of the Company and delivered to the Rights
Agent; and such certificate shall be full authorization to the Rights Agent for
any action taken or suffered in good faith by it under the provisions of this
Agreement in reliance upon such certificate.
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(c) The Rights Agent shall be liable hereunder to the Company and
any other Person only for a loss which is a result of or caused by 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 maintained in this Agreement or in the
Rights Certificates or be required to verify the same (except as to its
countersignature on such Rights Certificates), but all such statements and
recitals are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be under any responsibility in
respect of the validity or legality of this Agreement or the execution and
delivery hereof (except the due execution hereof by the Rights Agent) or in
respect of the validity or legality or execution of any Rights Certificate
(except its countersignature thereof); nor shall it be responsible for any
breach by the Company of any covenant or condition contained in this Agreement
or in any Rights Certificate; nor shall it be responsible for any adjustment
required under the provisions of Section 11 or Section 13 hereof or responsible
for the manner, method or amount of any such adjustment or the ascertaining of
the existence of facts that would require any such adjustment (except with
respect to the exercise of Rights evidenced by Rights Certificates after
receipt of the certificate described in Section 12 hereof setting forth 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
of Common Stock to be issued pursuant to this Agreement or any Rights
Certificate or as to whether any shares of Common Stock will, when so issued,
be validly authorized and issued, fully paid and non-assessable.
(f) The Company agrees that it will perform, execute, acknowledge
and deliver or cause to be performed, executed, acknowledged and delivered all
such further and other acts, instruments and assurances as may reasonably be
required by the Rights Agent for the carrying out or performing by the Rights
Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from any
Person reasonably believed by the Rights Agent to be one of the Chairman of the
Board, the President, any vice President, the Secretary, any Assistant
Secretary, the Treasurer, any Assistant Treasurer or Controller of the Company,
and to apply to such officers for advice or instructions in connection with its
duties, and it shall not be liable to the Company or the holder of any Rights
Certificate or any shareholder of the Company for any action taken or suffered
to be taken by it in good faith in accordance with instructions of any such
officer or for any delay in acting while waiting for those instructions. Any
application by the Rights Agent for written instructions from the Company may;
at the option of the Rights Agent set forth in writing any action proposed to
be taken or omitted by the Rights Agent under this Agreement and the date on
and/or after which such action shall be taken or such omission shall be
effective. The Rights Agent shall not be liable in accordance with a proposal
included in such application on or after the date specified in such application
(which date shall not be less than five Business Days after the date any
officer of the Company actually receives such application, unless any such
officer shall have consented in writing to an earlier date) unless, prior
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to taking any such action (or the effective date in case of an omission), the
Rights Agent shall have received written instructions in response to such
application specifying the action to be taken or omitted.
(h) The Rights Agent and any shareholder, director, officer or
employee of the Rights Agent may buy, sell or deal in any of the Rights or
other securities of the Company or become pecuniarily interested in any
transaction in which the Company may be interested, or contract with or lend
money to the Company or its Subsidiaries or otherwise act as fully and freely
as though it were not the Rights Agent under this Agreement. Nothing herein
shall preclude the Rights Agent from acting in any other capacity for the
Company or its Subsidiaries or for any other legal entity.
(i) The Rights Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either itself or by or
through its attorneys or agents, and the Rights Agent shall not be answerable
or accountable for any act, default, neglect or misconduct of any such
attorneys or agents or for any loss to the Company resulting from any such act,
default, neglect or misconduct; provided, however, reasonable care was
exercised in the selection and continued employment thereof.
(j) If, with respect to any Rights Certificate surrendered to the
Rights Agent for exercise or transfer, the certificate attached to the form of
assignment or form of election to purchase, as the case may be, has either not
been completed to certify 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.
SECTION 21. CHANGE OF RIGHTS AGENT.
The Rights Agent or any successor Rights Agent may resign and be
discharged from its duties under this Agreement upon thirty (30) days' notice
in writing mailed to the Company, and to each transfer agent of the Common
Stock, by registered or certified mail, and, following any Distribution Date,
to the holders of the Rights Certificates then outstanding by first-class mail.
The Company may remove the Rights Agent or any successor Rights Agent upon
thirty (30) days' notice in writing, mailed to the Rights Agent or successor
Rights Agent, as the case may be. and to each transfer agent of the Common
Stock, by registered or certified mail, and, following any Distribution Date,
to the holders of the Rights Certificates then outstanding by first-class mail.
If the Rights Agent shall resign or be removed or shall otherwise become
incapable of acting, the Company shall appoint a successor to the Rights Agent.
If the Company shall fail to make such appointment within a period of thirty
(30) days after giving notice of such removal or after it has been notified in
writing of such resignation or incapacity by the resigning or incapacitated
Rights Agent or by the holder of a Rights Certificate (who shall, with such
notice, submit his Rights Certificate for inspection by the Company), then any
registered holder of any Rights Certificate may apply to any court of competent
jurisdiction for the appointment of a new Rights Agent. Any successor Rights
Agent, whether appointed by the Company or by such a court, shall be (a) a
corporation organized and doing business under the laws of the United States or
of any state, in good standing, which is authorized under such laws to exercise
corporate trust powers and is
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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 of a corporation described
in clause (a) of this sentence. After appointment, the successor Rights Agent
shall be vested with the same powers, rights, duties and responsibilities as if
it had been originally named as Rights Agent without further act or deed; but
the predecessor Rights Agent shall deliver and transfer to the successor Rights
Agent any property at the time held by it hereunder, and execute and deliver
any further assurance, conveyance, act or deed necessary for the purpose. Not
later than the effective date of any such appointment, the Company shall file
notice thereof in writing with the predecessor Rights Agent and each transfer
agent of the Common Stock, and, following any Distribution Date, mail a notice
thereof in writing to the registered holders of the then outstanding Rights
Certificates. Failure to give any notice provided for in this Section 21,
however, or any defect therein, shall not affect the legality or validity of
the resignation or removal of the Rights Agent or the appointment of the
successor Rights Agent, as the case may be.
SECTION 22. ISSUANCE OF NEW RIGHTS CERTIFICATES.
Notwithstanding any of the provisions of this Agreement or of the
Rights to the contrary, the Company may, at its option, issue new Rights
Certificates evidencing Rights in such form as may be approved by its Board of
Directors to reflect any adjustment or change in the Purchase Price or the
number or kind or class of shares or other securities or property purchasable
under the Rights Certificates made in accordance with the provisions of this
Agreement. In addition, in connection with the issuance or sale of shares of
Common Stock following the Initial Distribution Date in the case of the Initial
Rights and the Second Distribution Date in the case of the Second Rights and,
in each case, prior to the earlier of the redemption or expiration of the
respective Rights the Company:
(a) may, with respect to shares of Common Stock so issued or sold
pursuant to the exercise of stock options or under any employee plan or
arrangement, or upon the exercise, conversion or exchange of securities
hereinafter issued by the Company, or upon a contractual obligation of the
Company in each case existing prior to the Initial Distribution Date in the
case of the Initial Rights, and the Second Distribution Date in the case of the
Second Rights, and
(b) may, in any other case, if deemed necessary or appropriate by
the Board of Directors of the Company, issue Rights Certificates representing
the appropriate number of Rights in connection with such issuance or sale;
provided, however, that
(i) no such Rights Certificate shall be issued if, and to
the extent that, the Company shall be advised by counsel that such
issuance would create a significant risk of material adverse tax
consequences to the Company or the Person to whom such Rights
Certificate would be issued, and
(ii) no such Rights Certificate shall be issued if, and
to the extent that, appropriate adjustments shall otherwise have been
made in lieu of the issuance thereof.
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SECTION 23. REDEMPTION AND TERMINATION.
(a) The Board of Directors of the Company may, at its option, at
any time prior to the Initial Distribution Date, redeem all but not less than
all of the then outstanding Initial Rights (other than Rights that have become
void pursuant to the provisions of Section 7(e) hereof) at a redemption price
of $.001 per Right (the "Initial Right Redemption Price"), as such amount may
be appropriately adjusted to reflect any stock split, stock dividend or similar
transaction occurring after the date hereof. The Board of Directors may, at its
option, at any time prior to the Second Distribution Date redeem all or part of
the then outstanding Second Rights (other than Rights that have become void
pursuant to the provisions of Section 7(e) hereof) at the Redemption Price as
such amount may be appropriately adjusted to reflect any stock split, stock
dividend or similar transaction occurring after the date hereof. If the Board
elects to redeem less than all of the Second Rights, the respective Rights to
be redeemed shall be allocated pro rata among all holders of the respective
Rights based upon the number of such Second Rights held (other than Rights that
have become void pursuant to the provisions of Section 7(e) hereof).
(b) Immediately upon the action of the Board of Directors of the
Company ordering the redemption of the Rights pursuant to Paragraph (a) of this
Section 23 (or at such later time as the Board of Directors may establish for
the effectiveness of such redemption), evidence of which shall have been filed
with the Rights Agent and without any further action and without any notice,
the right to exercise the Rights to be redeemed will terminate and the only
right thereafter of the-holders of such Rights shall be to receive the
Redemption Price for each Right so held. Promptly after the action of the Board
of Directors ordering the redemption of Rights, the Company shall give notice
of such redemption to the Rights Agent and the holders of the then outstanding
Rights to be redeemed by mailing such notice to all such holders at each
holder's last address as it appears upon the registry books of the Rights Agent
or, prior to the Initial Distribution Date in the case of the Initial Rights
and the Second Distribution Date in the case of the Second Rights, on the
registry books of the Transfer Agent for the Common Stock. Any notice which is
mailed in the manner herein provided shall be deemed given, whether or not the
holder receives the notice. Each such notice of redemption will state the
number of Rights to be redeemed and the method by which the payment of the
Redemption Price will be made. The failure to give, or any defect in, any such
notice shall not affect the validity of such redemption.
SECTION 24. EXCHANGE.
(a) The Board of Directors of the Company may, at its option, at
any time and from time to time after any person first becomes an Acquiring
Person, exchange all or part of the then outstanding and exercisable Rights
(which shall not include Rights that have become void pursuant to the
provisions of Section 7(e) hereof) for shares of Common Stock at an exchange
ratio of one share of Common Stock per Right or, if the Company does not have a
sufficient number of authorized and not outstanding shares of Common Stock for
issuance upon exchange at such ratio, such other exchange ratio as the Board of
Directors shall determine (such exchange ratio being hereinafter referred to as
the "Exchange Ratio"). Notwithstanding the foregoing, the Board of Directors
shall not be empowered to effect such exchange at any time after (i) any
Acquiring
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Person (other than an Exempt Person), together with all Affiliates and
Associates of such Person, becomes the Beneficial Owner of shares of Common
Stock aggregating 50% or more of the shares of Common Stock then outstanding or
(ii) the occurrence of an event specified in Section 13(a) hereof.
(b) Immediately upon the action of the Board of Directors of this
Company ordering the exchange of any Rights pursuant to paragraph (a) of this
Section 24 and without any further notice, the right to exercise such Rights
shall terminate and the only right thereafter a holder of such Rights shall
have shall be to receive that number of shares of Common Stock equal to the
number of such Rights held by such holder multiplied by the Exchange Ratio. The
Company shall promptly give public notice of any such exchange; provided,
however, that the failure to give, or any defect in, such notice shall not
affect the validity of such exchange. The Company shall promptly mail a notice
of any such exchange to all of the holders of the Rights so exchanged at their
last addresses as they appear upon the registry books of the Rights Agent. Any
notice which is mailed in the manner herein provided shall be deemed given,
whether or not the holder receives the notice. Each such notice of exchange
will state the method by which the exchange of the shares of Common Stock for
Rights will be effected and, in the event of any partial exchange, the number
of Rights which will be exchanged. Any partial exchange shall be effected pro
rata based on the number of Rights (other than Rights which have become void
pursuant to the provisions of Section 7(e) hereof) held by each holder of
Rights.
(c) In the event that there shall not be sufficient shares of
Common Stock issued but not outstanding or authorized but unissued to permit
any exchange of Rights as contemplated in accordance with this Section 24, or
that any regulatory actions or approvals are necessary in connection therewith,
the Company may, in its discretion, take such actions or seek such approvals as
may be necessary to authorize additional shares of Common stock for issuance
upon exchange of the Rights. In the event that the Company shall, after good
faith effort, be unable to take such actions or obtain such approvals as may be
necessary to authorize such additional shares of Common Stock, the Company
shall substitute, to the extent of such insufficiency, for each share of Common
Stock that would otherwise be issuable upon exchange of a Right, a number of
units of Common Stock Equivalents as defined in Section 11(b)(ii) hereof, cash
or other assets of the Company equal to the Current Market Price of one share
of Common Stock (determined pursuant to Section 1(j) hereof) as of the date of
issuance of such Common Stock Equivalents or fractions thereof.
(d) The Company shall not, in connection with any exchange
pursuant to this Section 24, be required to issue fractions of shares of Common
Stock or to distribute certificates which evidence fractional shares of Common
Stock. In lieu of such fractional shares of Common Stock, the Company shall pay
to the registered holders of the Rights Certificates with regard to which such
fractional shares of Common Stock would otherwise be issuable an amount in cash
equal to the same fraction of the current market value of a whole share of
Common Stock. For the purposes of this paragraph (d), the current market value
of a whole share of Common Stock shall be the closing price of a share of
Common Stock (as determined pursuant to the second sentence of Section 1(j)
hereof) for the Trading Day immediately prior to the date of exchange pursuant
to this Section 24.
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SECTION 25. NOTICE OF CERTAIN EVENTS.
(a) In case the Company shall propose, at any time after the
Initial Distribution Date in the case of the Initial Rights and the Second
Distribution Date in the case of the Second Rights,
(i) to pay any dividend payable in stock of any class
to the holders of the Common Stock, or
(ii) to offer to the holders of Common Stock rights or
warrants to subscribe for or to purchase any additional shares of
Common Stock or shares of stock of any class or any other securities,
rights or options, or
(iii) to effect any reclassification of its Common Stock
(other than a reclassification involving only the subdivision of
outstanding shares of Common Stock), or
(iv) to effect any liquidation, dissolution or winding up
of the Company,
then, in each such case, the Company shall give to each holder of a Rights
Certificate, to the extent feasible and in accordance with Section 26 hereof, a
notice of such proposed action, which shall specify the record date for the
purposes of such stock dividend, distribution of rights or warrants,
reclassification or the date on which such liquidation, dissolution or winding
up is to take place and the date of participation therein by the holders of the
shares of Common Stock, if any such date is to be fixed, and such notice shall
be so given in the case of any action covered by clause (i) or (ii) above at
least twenty (20) days prior to the record date for determining holders of the
shares of Common Stock for purposes of such action, and in the case of any such
other action, at least twenty (20) days prior to the date of the taking of such
proposed action or the date of participation therein by the holders of the
shares of Common Stock, whichever shall be the earlier.
(b) In case any of the events set forth in Section 11(a)(ii) or
Section 13 hereof shall occur. then, in any such case, the Company shall, as
soon as practicable thereafter, give to each holder of a Rights Certificate (or
if occurring prior to the Initial Distribution Date in the case of the Initial
Rights and the Second Distribution Date in the case of the Second Rights, the
holders of the Common Stock), to the extent feasible and in accordance with
Section 26 hereof, a notice of the occurrence of such event, which shall
specify the event and the consequences of the event to holders of Rights under
Sections 11(a)(ii) and 13 hereof.
SECTION 26. NOTICES.
Notices or demands authorized by this Agreement to be given or made by
the Rights Agent or by the holder of any Rights Certificate to or on the
Company shall be sufficiently given or made if sent by first-class mail,
postage prepaid, addressed (until another address is filed in writing with the
Rights Agent) as follows:
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39
WGNB Corp.
X.X. Xxx 000
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: President
Subject to the provisions of Section 21 hereof, any notice or demand authorized
by this Agreement to be given or made by the Company or by the holder of any
Rights Certificate to or on the Rights Agent shall be sufficiently given or
made if sent by first-class mail, postage prepaid, addressed (until another
address is filed in writing with the Company) as follows:
SunTrust Bank, Atlanta
Stock Transfer Department
Room 225, 2nd Floor Annex
00 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Department Manager
Notices or demands authorized by this Agreement to be given or made by the
Company or the Rights Agent to the holder of any Rights Certificate (or, if
prior to the Initial Distribution Date in the case of the Initial Rights and
the Second Distribution Date in the case of the Second Rights, to the holder of
certificates representing shares of Common Stock) shall be sufficiently given
or made if sent by first-class mail, postage prepaid, addressed to such holder
at the address of such holder as shown on the registry books of the Company, in
the case of Rights represented by certificates for Common Stock, and on the
registry books of the Rights Agent, in the case of Rights represented by Rights
Certificates.
SECTION 27. SUPPLEMENTS AND AMENDMENTS.
Subject to the last sentence of this Section 27 and subject to the
next sentence herein, at any time prior to the Initial Distribution Date and
thereafter for so long as the Initial Rights are redeemable, the Company may in
its sole and absolute discretion, and the Rights Agent shall if the Company so
directs, supplement or amend any provision of this Agreement in any respect
without the approval of the holders of any Rights. Subject to the last sentence
of this Section 27, at any time prior to the Second Distribution Date and
thereafter for so long as the Second Rights are redeemable, the Company in its
sole and absolute discretion, and the Rights Agent shall if the Company so
directs, supplement or amend any provision of this Agreement in any respect
without the approval of the holders of any Rights; provided, however, that any
such supplement or amendment approved after the Initial Distribution Date
pursuant to this sentence shall apply only to the Second Rights. Except as
provided in the preceding sentence, at any time when the Rights are no longer
redeemable, and subject to the last sentence of this Section 27, the Company
and the Rights Agent shall, if the Company so directs, supplement or amend any
provision of this Agreement without the approval of any holders of Rights
Certificates in order
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40
(a) to cure any ambiguity,
(b) to correct or supplement any provision contained herein which
may be defective or inconsistent with any other provisions herein,
(c) to shorten or lengthen any time period hereunder, provided,
however, that except as expressly provided herein, the period during which the
Company may redeem the Rights may not be extended beyond the earlier of the
respective Distribution Dates and thirty (30) days after the respective
Triggering Event, or
(d) to change or supplement the provisions hereunder in any manner
which the Company may deem necessary or desirable and which shall not adversely
affect the interests of the holders of Rights Certificates (other than an
Acquiring Person, or an Affiliate or Associate of any such Acquiring Person);
provided, this Agreement may not be supplemented or amended to lengthen,
pursuant to clause (e) of this sentence,
(I) a time period relating to when the Rights may be
redeemed if at the time of such supplement or amendment the respective
Rights are not then redeemable, or
(II) any other time period unless such lengthening is for
the purpose of (A) protecting, enhancing or clarifying the rights of,
and/or the benefits to, the holders of the Rights (other than an
Acquiring Person, or an Affiliate or Associate of any such Acquiring
Person) or (B) protecting or enhancing the rights of, and/or the
benefits to, the holders of Common Stock (other than an Acquiring
Person, or an Affiliate or Associate of any such Acquiring Person).
Upon the delivery of a certificate that is signed by an appropriate officer of
the Company which states that the proposed supplement or amendment is in
compliance with the terms of this Section 27, which certificate shall be
conclusive evidence of compliance with this Section 27, the Rights Agent shall
execute such supplement or amendment. Notwithstanding anything contained in
this Agreement to the contrary, no supplement or amendment shall be made which
changes the Redemption Price.
SECTION 28. SUCCESSORS.
All the covenants and provisions of this Agreement by or for the
benefit of the Company or the Rights Agent shall bind and inure to the benefit
of their respective successors and assigns hereunder.
SECTION 29. DETERMINATIONS AND ACTIONS BY THE BOARD OF DIRECTORS, ETC.
For all purposes of this Agreement, any calculation of the number of
shares of Common Stock outstanding at any particular time, including for
purposes of determining the particular percentage of such outstanding shares of
Common Stock of which any Person is the Beneficial
40
41
Owner, shall be made in accordance with the last sentence of Rule
13d-3(d)(1)(i) of the General Rules and Regulations under the Exchange Act. The
Board of Directors of the Company (or, where specifically provided for herein,
certain specified members thereof) shall have the exclusive power and authority
to administer this Agreement and to exercise all rights and powers specifically
granted to the Board or to the Company, or as may be necessary or advisable in
the administration of this Agreement, including, without limitation, the right
and power to
(a) interpret the provisions of this Agreement, and
(b) make all determinations deemed necessary or advisable for the
administration of this Agreement (including, but not limited to, a
determination to redeem or not redeem the Rights or to amend the Agreement).
All such actions, calculations, interpretations and determinations (including,
for purposes of clause (c) below, all omissions with respect to the foregoing)
which are done or made by the Board (or, where specifically provided for
herein, by certain specified members thereof) in good faith, shall
(c) be final, conclusive and binding on the Company, the Rights
Agent, the holders of the Rights and all other parties, and
(d) not subject the Board or such specified members thereof to
any liability to the holders of the Rights.
SECTION 30. BENEFITS OF THIS AGREEMENT.
Nothing in this Agreement shall be construed to give to any Person
other than the Company, the Rights Agent and the registered holders of the
Rights Certificates (and, prior to the Initial Distribution Date in the case of
the Initial Rights and the Second Distribution Date in the case of the Second
Rights, registered holders of the Common Stock) any legal or equitable right,
remedy or claim under this Agreement; but this Agreement shall be for the sole
and exclusive benefit of the Company, the Rights Agent and the registered
holders of the Rights Certificates (and, prior to the Initial Distribution Date
in the case of the Initial Rights and the Second Distribution Date in the case
of the Second Rights, registered holders of the Common Stock).
SECTION 31. SEVERABILITY.
If any term, provision, covenant or restriction of this Agreement is
held by a court of competent jurisdiction or other authority to be invalid,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated; provided, however, that
notwithstanding anything in this Agreement to the contrary, if any such term,
provision, covenant or restriction is held by such court or authority to be
invalid, void or unenforceable and the Board of Directors of the Company
determines in its good faith judgment that severing the invalid language from
this Agreement would adversely affect the purpose or effect of this Agreement,
the right of redemption
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42
set forth in Section 23 hereof shall be reinstated and shall not expire until
the Close of Business of the twentieth day following the date of such
determination by the Board of Directors.
SECTION 32. GOVERNING LAW.
This Agreement, each Right and each Rights Certificate issued
hereunder shall be deemed to be a contract made under the laws of the State of
Georgia 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 to be
performed entirely within such State.
SECTION 33. COUNTERPART.
This Agreement may be executed in any number of counterparts and each
of such counterparts shall for all purposes be deemed to be an original, and
all such counterparts shall together constitute but one and the same
instrument.
SECTION 34. DESCRIPTIVE HEADINGS.
Descriptive headings of the several Sections of this Agreement are
inserted for convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
(Signatures on next page.)
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43
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and their respective corporate seals to be hereunto affixed
and attested, all as of the date and year first above written.
Attest: WGNB CORP.
By: /s/ X. X. Xxxxx, Xx. By: /s/ L. Xxxxxxxx Xxxxxx
----------------------------- ----------------------------------------
X. X. Xxxxx, Xx. L. Xxxxxxxx Xxxxxx
Secretary President and Chief Executive Officer
Attest: SUNTRUST BANK, ATLANTA
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ X. X. Xxxxxxxxx
----------------------------- -----------------------------------
Name: Xxxxxx X. Xxxxxxx Name: X. X. Xxxxxxxxx
--------------------------- ----------------------------------
Title: Vice President Title: Group Vice President
-------------------------- ---------------------------------
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44
EXHIBIT A
[Form of Initial Rights Certificate]
Certificate No. ______ ____ Rights
NOT EXERCISABLE AFTER JANUARY 31, 2007 OR EARLIER IF REDEEMED BY THE COMPANY.
THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT $.001
PER RIGHT ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN
CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS SUCH TERM
IS DEFINED IN THE RIGHTS AGREEMENT) AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS
MAY BECOME NULL AND VOID. [THE RIGHTS REPRESENTED BY THIS RIGHTS CERTIFICATE
ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING
PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE
DEFINED IN THE RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHTS CERTIFICATE AND THE
RIGHTS REPRESENTED HEREBY MAY BECOME NULL AND VOID IN THE CIRCUMSTANCES
SPECIFIED IN SECTION 7(e) OF SUCH AGREEMENT.]*
Initial Rights Certificate
WGNB Corp.
This certifies that _________________________________, or registered
assigns, is the registered owner of the number of Rights set forth set forth
above, each of which entitles the owner thereof, subject to the terms,
provisions and conditions of the Rights Agreement, dated as of February 12,
1997 (the "Rights Agreement"), between WGNB Corp., a Georgia corporation (the
"Company"), and SunTrust Bank, a commercial bank organized under the laws of
the State of Georgia (the "Rights Agent"), to purchase from the Company at any
time prior to 5:00 P.M. (Atlanta, Georgia time) on January 31, 2007 at the
office or offices of the Rights Agent designated for such purpose, or its
successors as Rights Agent, a number of shares of Common Stock (the "Common
Stock") of the Company equal to ten shares of Common Stock multiplied by a
fraction, the numerator of which is the number of shares of Common Stock
outstanding on the Initial Stock Acquisition Date, and the denominator of which
is the number of Initial Rights outstanding on the Initial Stock Acquisition
Date that are not beneficially owned by an Acquiring Person or its Affiliates
or Associates, at a purchase price per share equal to $.01 per share of Common
Stock (the "Purchase Price"), as those terms are defined in Section 1 of the
Rights Agreement, upon presentation and surrender of this Rights Certificate
with the Form of Election to Purchase and related Certificate duly executed.
The Purchase Price may be paid in cash or by certified bank check or money
order payable to the Company. The number of Rights evidenced by this Rights
Certificate (and the number of shares which may be purchased upon exercise
thereof) set forth above, and the Purchase Price per share set forth above, are
the number and Purchase Price as of based upon the Common Stock as constituted
at such date.
45
These Rights shall only become exercisable upon the occurrence of a
Section 11(a)(ii) Event (as such term is defined in the Rights Agreement), if
the Rights evidenced by this Certificate are beneficially owned by a person
other than (i) an Acquiring Person or an Affiliate or Associate of any such
Person (as such terms are defined in the Rights Agreement), (ii) a transferee
of any such Acquiring Person, Associate or Affiliate, or (iii) under certain
circumstances specified in the Rights agreement, a transferee of a person who,
after such transfer, became an Acquiring Person, or an Affiliate or Associate
of any such Person. If the Rights are beneficially owned by any of the Persons
specified in clauses (i), (ii) or (iii) of the preceding sentence, such Rights
shall become null and void and no holder hereof shall have any right with
respect to such Rights from and after the occurrence of such Section 11(a)(ii)
Event.
As provided in the Rights Agreement, the Purchase Price and the number
and kind of shares of Common Stock or other securities, which may be purchased
upon the exercise of the Rights evidenced by this Rights Certificate are
subject to modification and adjustment upon the happening of certain events,
including Triggering Events (as such term is defined in the Rights Agreement).
This Rights Certificate is subject to all of the terms, provisions and
conditions of the Rights Agreement, which terms, provisions and conditions are
hereby incorporated herein by this reference and made a part hereof and to
which Rights Agreement reference is hereby made for a full description of the
rights, limitations of rights, obligations, duties and immunities hereunder of
the Rights Agent, the Company and the holders of the Rights Certificates, which
limitations of rights include the temporary suspension of the exercisability of
such rights under the specific circumstances set forth in the Rights Agreement.
Copies of the Rights Agreement are on file at the above-mentioned office of the
Rights Agent and are also available upon written request to the Company.
This Rights Certificate, with or without other Rights Certificates,
upon surrender at the principal office or offices of the Rights Agent
designated for such purpose, may be exchanged for another Rights Certificate or
Rights Certificates of like tenor and date evidencing Rights entitling the
holder to purchase a like aggregate number of shares of Common Stock as the
Rights evidenced by the Rights Certificate or Rights Certificates surrendered
shall have entitled such holder to purchase. If this Rights Certificate shall
be exercised in part, the holder shall be entitled to receive upon surrender
hereof another Rights Certificate or Rights Certificates for the number of
whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights
evidenced by this Certificate may be redeemed by the Company at its option at a
redemption price of $.001 per Right at any time prior to the earlier of the
close of business on (i) the Initial Distribution Date, and (ii) the Final
Expiration Date, subject to extension as provided in the Rights Agreement.
46
No fractional shares of Common Stock will be issued upon the exercise
of any Right or Rights evidenced hereby, but in lieu thereof a cash payment
will be made, as provided in the Rights Agreement
No holder of this Rights Certificate, as such, shall be entitled to
vote or receive dividends or be deemed for any purpose the holder of shares of
Common Stock or of any other securities of the Company which may at any time be
issuable on the exercise hereof, nor shall anything contained in the Rights
Agreement or herein be construed to confer upon the holder hereof, as such, any
of the rights of a shareholder of the Company or any right to vote for the
election of directors or upon any matter submitted to shareholders at any
meeting thereof, or to give or withhold consent to any corporate action, or, to
receive notice of meetings or other actions affecting shareholders (except as
provided in the Rights Agreement), or to receive dividends or subscription
rights, or otherwise, until the Right or Rights evidenced by this Rights
Certificate shall have been exercised as provided in the Rights Agreement.
This Rights Certificate shall not be valid or obligatory for any
purpose until it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the Company
and its corporate seal.
Dated as of
-----------------------
WGNB CORP.
ATTEST:
By
----------------------------- --------------------------------------
Name: Name:
------------------------ ---------------------------------
Title: Title:
----------------------- --------------------------------
Countersigned:
SUNTRUST BANK, ATLANTA
ATTEST:
By
----------------------------- --------------------------------------
Name: Name:
------------------------ ---------------------------------
Title: Title:
----------------------- --------------------------------
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[Form of Reverse Side of Initial Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder desires to transfer
this Rights Certificate)
FOR VALUE RECEIVED ___________________________________________ hereby sells.
assigns and transfers unto_____________________________________________________
(Please print name and address of transferee) _________________________________
this Rights Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint ___________________ Attorney,
to transfer the within Rights Certificate on the books of the within-named
Company, with full power of substitution.
Dated:_____________________
______________________________
Signature
Signature Guaranteed:
Certificate
The undersigned hereby certifies by checking the appropriate boxes that:
(1) this Rights Certificate [ ] is [ ] is not being sold, assigned and
transferred by or on behalf of a Person who is or was an Acquiring Person, an
Affiliate or Associate of any such Person (as such terms are defined pursuant
to the Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned, it
[ ] did [ ] did not acquire the Rights evidenced by this Rights Certificate
from any Person who is, was or subsequently became an Acquiring Person, an
Affiliate or Associate of any such Person.
Dated:_____________________
________________________________
Signature
Signature Guaranteed:
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NOTICE
The signature to the foregoing Assignment and Certificate must
correspond to the name as written upon the face of this Rights Certificate in
every particular, without alteration or enlargement or any change whatsoever.
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FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to exercise Rights Represented by the Initial
Rights Certificate)
To: WGNB CORP.
The undersigned hereby irrevocably elects to exercise _______ Rights
represented by this Rights Certificate to purchase the shares of Common Stock
issuable upon the exercise of the Rights (or such other securities of the
Company or of any other Person which may be issuable upon the exercise of the
Rights) and requests that certificates for such shares be issued in the name of
and delivered to (please type or print):
Social Security or other identifying number: [ __________________ ]
Name and Address:
___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
If such number of Rights shall not be all the Rights evidenced by this
Rights Certificate, a new Rights Certificate for the balance of such Rights
shall be registered in the name of and delivered to:
Name and Address:
___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
Social Security or other identifying number:_______________________
Dated:____________________
_______________________________
Signature
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Certificate
The undersigned hereby certifies by checking the appropriate boxes
that:
(1) the Rights evidenced by this Rights Certificate [ ] are [ ] are
not being exercised by or on behalf of a Person who is or was an Acquiring
Person, an Affiliate or Associate of any such Person (as such terms are defined
pursuant to the Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned, it
[ ] did [ ] did not acquire the Rights evidenced by this Rights Certificate
from any Person who is, was or subsequently became an Acquiring Person, an
Affiliate or Associate of any such Person.
Dated:
--------------------- --------------------------------
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Election to Purchase and Certificate
must correspond to the name as written upon the face of this Rights Certificate
in every particular, without alteration or enlargement or any change
whatsoever.
* The portion of the legend in brackets shall be inserted only if
applicable, shall be modified to apply to an Acquiring Person as applicable,
and shall replace the preceding sentence.
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These Rights shall only become exercisable upon the occurrence of a
Section 11(a)(ii) Event (as such term is defined in the Rights Agreement), if
the Rights evidenced by this Certificate are beneficially owned by a person
other than (i) an Acquiring Person or an Affiliate or Associate of any such
Person (as such terms are defined in the Rights Agreement), (ii) a transferee
of any such Acquiring Person, Associate or Affiliate, or (iii) under certain
circumstances specified in the Rights agreement, a transferee of a person who,
after such transfer, became an Acquiring Person, or an Affiliate or Associate
of any such Person. If the Rights are beneficially owned by any of the Persons
specified in clauses (i), (ii) or (iii) of the preceding sentence, such Rights
shall become null and void and no holder hereof shall have any right with
respect to such Rights from and after the occurrence of such Section 11(a)(ii)
Event.
As provided in the Rights Agreement, the Purchase Price and the number
and kind of shares of Common Stock or other securities, which may be purchased
upon the exercise of the Rights evidenced by this Rights Certificate are
subject to modification and adjustment upon the happening of certain events,
including Triggering Events (as such term is defined in the Rights Agreement).
This Rights Certificate is subject to all of the terms, provisions and
conditions of the Rights Agreement, which terms, provisions and conditions are
hereby incorporated herein by this reference and made a part hereof and to
which Rights Agreement reference is hereby made for a full description of the
rights, limitations of rights, obligations, duties and immunities hereunder of
the Rights Agent, the Company and the holders of the Rights Certificates, which
limitations of rights include the temporary suspension of the exercisability of
such rights under the specific circumstances set forth in the Rights Agreement.
Copies of the Rights Agreement are on file at the above-mentioned office of the
Rights Agent and are also available upon written request to the Company.
This Rights Certificate, with or without other Rights Certificates,
upon surrender at the principal office or offices of the Rights Agent
designated for such purpose, may be exchanged for another Rights Certificate or
Rights Certificates of like tenor and date evidencing Rights entitling the
holder to purchase a like aggregate number of shares of Common Stock as the
Rights evidenced by the Rights Certificate or Rights Certificates surrendered
shall have entitled such holder to purchase. If this Rights Certificate shall
be exercised in part, the holder shall be entitled to receive upon surrender
hereof another Rights Certificate or Rights Certificates for the number of
whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights
evidenced by this Certificate may be redeemed by the Company at its option at a
redemption price of $.001 per Right at any time prior to the earlier of the
close of business on (i) the Second Distribution Date, and (ii) the Final
Expiration Date, subject to extension as provided in the Rights Agreement.
No fractional shares of Common Stock will be issued upon the exercise
of any Right or Rights evidenced hereby, but in lieu thereof a cash payment
will be made, as provided in the Rights Agreement.
52
No holder of this Rights Certificate, as such, shall be entitled to
vote or receive dividends or be deemed for any purpose the holder of shares of
Common Stock or of any other securities of the Company which may at any time be
issuable on the exercise hereof, nor shall anything contained in the Rights
Agreement or herein be construed to confer upon the holder hereof, as such, any
of the rights of a shareholder of the Company or any right to vote for the
election of directors or upon any matter submitted to shareholders at any
meeting thereof, or to give or withhold consent to any corporate action, or, to
receive notice of meetings or other actions affecting shareholders (except as
provided in the Rights Agreement), or to receive dividends or subscription
rights, or otherwise, until the Right or Rights evidenced by this Rights
Certificate shall have been exercised as provided in the Rights Agreement.
This Rights Certificate shall not be valid or obligatory for any
purpose until it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the Company
and its corporate seal.
Dated as of
------------------
WGNB CORP.
ATTEST:
By
----------------------------- --------------------------------------
Name: Name:
------------------------ ---------------------------------
Title: Title:
----------------------- --------------------------------
Countersigned:
SUNTRUST BANK, ATLANTA
ATTEST:
By
----------------------------- --------------------------------------
Name: Name:
------------------------ ---------------------------------
Title: Title:
----------------------- --------------------------------
53
[Form of Reverse Side of Second Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder desires to transfer
this Rights Certificate)
FOR VALUE RECEIVED ________________________________________ hereby sells,
assigns and transfers unto ____________________________________________________
(Please print name and address of transferee)__________________________________
this Rights Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint ____________________________
Attorney, to transfer the within Rights Certificate on the books of the
within-named Company, with full power of substitution.
Dated:
_____________________
________________________________
Signature
Signature Guaranteed:
Certificate
The undersigned hereby certifies by checking the appropriate boxes
that:
(1) this Rights Certificate [ ] is [ ] is- not being sold, assigned
and transferred by or on behalf of a Person who is or was an Acquiring Person,
an Affiliate or Associate of any such Person (as such terms are defined
pursuant to the Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned, it
[ ] did [ ] did not acquire the Rights evidenced by this Rights Certificate
from any Person who is, was or subsequently became an Acquiring Person, an
Affiliate or Associate of any such Person.
Dated:
_____________________ ________________________________
Signature
Signature Guaranteed:
54
NOTICE
The signature to the foregoing Assignment and Certificate must
correspond to the name as written upon the face of this Rights Certificate in
every particular, without alteration or enlargement or any change whatsoever.
55
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to exercise Rights Represented by the Second
Rights Certificate)
To: WGNB CORP.
The undersigned hereby irrevocably elects to exercise _____ Rights
represented by this Rights Certificate to purchase the shares of Common Stock
issuable upon the exercise of the Rights (or such other securities of the
Company or of any other Person which may be issuable upon the exercise of the
Rights) and requests that certificates for such shares be issued in the name of
and delivered to (please type or print):
Social Security or other identifying number: [ _________________ ]
Name and Address:
___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
If such number of Rights shall not be all the Rights evidenced by this
Rights Certificate, a new Rights Certificate for the balance of such Rights
shall be registered in the name of and delivered to:
Name and Address:
___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
Social Security or other identifying number: ______________________
Dated: ____________________
_______________________________
Signature
56
Certificate
The undersigned hereby certifies by checking the appropriate boxes
that:
(1) the Rights evidenced by this Rights Certificate [ ] are [ ] are
not being exercised by or on behalf of a Person who is or was an Acquiring
Person, an Affiliate or Associate of any such Person (as such terms are defined
pursuant to the Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned, it
[ ] did [ ] did not acquire the Rights evidenced by this Rights Certificate
from any Person who is, was or subsequently became an Acquiring Person, an
Affiliate or Associate of any such Person.
Dated:
--------------------- -------------------------------
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Election to Purchase and Certificate
must correspond to the name as written upon the face of this Rights Certificate
in every particular, without alteration or enlargement or any change
whatsoever.
* The portion of the legend in brackets shall be inserted only if
applicable, shall be modified to apply to an Acquiring Person as applicable,
and shall replace the preceding sentence.
57
Exhibit C
SUMMARY OF RIGHTS TO PURCHASE
COMMON STOCK
On February 11, 1997, the Board of Directors of WGNB Corp. (the
"Company") declared a dividend distribution of one Right for each outstanding
share of Company Common Stock (the "Common Stock") to shareholders of record at
the close of business on February 12, 1997. The dividend distribution date is
February 28, 1997. Each Right includes an Initial Right and a Second Right,
each of which entitles the registered holder to purchase from the Company a
number of shares of Common Stock equal to 10 shares of Common Stock multiplied
by a fraction, the numerator of which is the number of shares of Common Stock
outstanding on the Initial Stock Acquisition Date in the case of the Initial
Rights and the Second Stock Acquisition Date in the case of the Second Rights,
and the denominator of which is the number of Rights outstanding on the
respective Stock Acquisition Date that are not beneficially owned by an
Acquiring Person or its affiliates or associates, at a Purchase Price per share
of $.01 per share. The description and terms of the Rights are set forth in a
Rights Agreement (the "Rights Agreement") between the Company and SunTrust
Bank, Atlanta, as Rights Agent, a copy of which is on file with the Company.
Initially, the Rights will be attached to all Common Stock
Certificates representing shares then outstanding, and no separate Rights
Certificates will be distributed. The Initial Rights will separate from the
Common Stock and an Initial Distribution Date will occur upon the earlier of
(i) 10 business days following a public announcement that a person or a group
of affiliated or associated persons has acquired beneficial ownership of 10% or
more of the outstanding shares of Common Stock, (ii) 10 business days following
the date on which the Board of Directors of the Company first learns that such
a person or group has acquired beneficial ownership of 10% or more of the
outstanding Common Stock, or (iii) 10 business days following the commencement
of a tender offer or an exchange offer that would result in a person or group
beneficially owning 10% or more of such outstanding shares of Common Stock. The
Second Rights will separate from the Common Stock and a Second Distribution
Date will occur upon the earlier of (i) 10 business days following a public
announcement that a person or a group of affiliated or associated persons has
acquired beneficial ownership of an additional 10% or more of the outstanding
shares of Common Stock, (ii) 10 business days following the date on which the
Board of Directors of the Company first learns that such a person or group has
acquired beneficial ownership of an additional 10% or more of the outstanding
Common Stock, or (iii) 10 business days following the commencement of a tender
offer or an exchange offer that would result in such a person or group
beneficially owning an additional 10% or more of such outstanding shares of
Common Stock.
Until the Initial Distribution Date in the case of the Initial Rights
and the Second Distribution Date in the case of the Second Rights, (i) the
Rights will be evidenced by the Common Stock certificates and will be
transferred only with such Common Stock certificates, (ii) new Common Stock
certificates issued after February 12, 1997 will contain a notation
incorporating the Rights Agreement by reference and (iii) the surrender for
transfer of any certificates for Common
58
Stock will also constitute the transfer of the Rights associated with the
Common Stock represented by such certificate.
The Rights are not exercisable until the Initial Distribution Date in
the case of the Initial Rights and the Second Distribution Date in the case of
the Second Rights and will expire at the close of business on January 31, 2007,
unless earlier redeemed by the Company as described below.
As soon as practicable after the respective Distribution Date, Rights
Certificates evidencing the Initial Rights or the Second Rights, as the case
may be, will be mailed to holders of record of the Common Stock as of the close
of business on the respective Distribution Date and, thereafter, the separate
Rights Certificates alone will represent the respective Rights. Except as
otherwise determined by the Board of Directors, only shares of Common Stock
issued prior to the respective Distribution Date will be issued with Rights,
provided, however, that Second Rights also will be issued with the shares of
Common Stock issuable upon exercise of Initial Rights.
If at any time following the respective Distribution Date a Person
causes an Initial Distribution Date or a Second Distribution Date (the
"Acquiring Person"), each holder of a Right will thereafter have the right to
receive, upon exercise, a number of shares of Common Stock equal to 10 shares
of Common Stock multiplied by a fraction, the numerator of which is the number
of shares of Common Stock outstanding on the Stock Acquisition Date, and the
denominator of which is the number of Rights outstanding on the Stock
Acquisition Date that are not Beneficially Owned by the Acquiring Person or its
affiliates or associates. The price for the exercise of each Right shall be
$.01 multiplied by the number of shares of Common Stock to be received upon
exercise. Notwithstanding any of the foregoing, following the occurrence of any
of the events set forth in this paragraph, all Rights that are, or (under
certain circumstances specified in the Rights Agreement) were, beneficially
owned by any Acquiring Person will be null and void. However, Rights are not
exercisable following the occurrence of the events set forth above until such
time as the Rights are no longer redeemable by the Company as set forth below.
In the event that, at any time following the respective Stock
Acquisition Date, (i) the Company is acquired in a merger or other business
combination in which the Company is not the surviving corporation, or (ii) all
of its shares are acquired in a share exchange or the Company engages in a
merger or consolidation in which all or part of its outstanding shares of
Common Stock are changed into or exchanged for stock, other securities or
assets of any other person or (iii) 50% or more of the Company's assets or
earning power is sold or transferred, each holder of a Right (except Rights
which previously have been voided as set forth above) shall thereafter have the
right to receive, upon exercise, a number of shares of common stock of the
acquiring company equal to the product of 10 times the result obtained by
dividing the current market price of the Company's Common Stock by the current
market price of the common stock of the acquiring corporation or, if such stock
is not traded in public markets, of its parent corporation. The Purchase Price
will be calculated on the same basis as if the Right holder were exercising a
Right to purchase Common Stock of the Company at that time.
59
No fractional Rights will be issued, and, in lieu thereof, an
adjustment in cash will be made based on the market price of the Rights on the
last trading date prior to the date of adjustment. No fractional shares will be
issued upon exercise of the Rights, and, in lieu thereof, an adjustment in cash
will be made based on the market price of the Common Stock on the last trading
date prior to the date of exercise.
In general, the Company may redeem the Initial Rights or the Second
Rights, or both, at a price of $.001 per Right, at any time before the
respective Distribution Date (subject to extension under certain
circumstances). Immediately upon the action of the Board of Directors ordering
redemption of the Rights, the Rights will terminate and the only right of the
holders of Rights to be redeemed will be to receive the $.001 redemption price.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a shareholder of the Company, including, without limitation, the
right to vote or to receive dividends. While the distribution of the Rights
will not be taxable to shareholders or the Company, shareholders may, depending
upon the circumstances, recognize taxable income in the event that the Rights
become exercisable for Common Stock (or other consideration) of the Company or
for common stock of the acquiring company as set forth above.
The provisions of the Rights Agreement may be amended by the Board of
Directors prior to the Initial Distribution Date, in the case of the Initial
Rights, and the Second Distribution Date, in the case of the Second Rights.
After such dates, the provisions of the Rights Agreement may be amended by the
Board in order to cure any ambiguity, to make changes which do not adversely
affect the interests of holders of Rights, or to shorten or lengthen any time
period under the Rights Agreement; provided, however, that no amendment to
adjust the time period governing redemption shall be made at such time as the
Rights are not redeemable and the redemption period may not be extended beyond
30 days after the applicable Stock Acquisition Date.
As of the close of business on February 12, 1997, there were 792,787
shares of Common Stock of the Company outstanding.
The Rights have certain anti-takeover effects. The Rights will cause
substantial dilution to a person or group that attempts to acquire the Company
in a manner which causes the Rights to become exercisable, unless the terms of
an offer for all shares are first approved by the Board and the Rights redeemed
by the Company. The Rights, however, should not affect any prospective offeror
willing to make an offer at a fair price and otherwise in the best interests of
the Company and its shareholders, as determined by the Board; or willing to
negotiate with the Board. The Rights should not interfere with any merger or
other business combination approved by the Board since the Board may, at its
option, before the merger or business combination, redeem all, but not less
than all, of the then-outstanding Rights at the redemption price or amend the
Rights Agreement to permit the transaction.
