EXECUTION COPY
WM. WRIGLEY JR. COMPANY
and
EQUISERVE, L.P.,
Rights Agent
Rights Agreement
Dated as of June 1, 2001
TABLE OF CONTENTS
Page
Section 1. Certain Definitions 1
Section 2. Appointment of Rights Agent 6
Section 3. Issuance of Rights Certificates 7
Section 4. Form of Rights Certificates 9
Section 5. Countersignature and Registration 10
Section 6. Transfer, Split-Up, Combination and
Exchange of Rights Certificates; Mutilated,
Destroyed, Lost or Stolen Rights Certificates 10
Section 7. Exercise of Rights; Purchase Price; Expiration
Date of Rights 11
Section 8. Cancellation and Destruction of Rights
Certificates 14
Section 9. Reservation and Availability of Capital Stock 14
Section 10. Preferred Stock Record Date 16
Section 11. Adjustment of Purchase Price, Number and Kind
of Shares or Number of Rights 16
Section 12. Certificate of Adjusted Purchase Price or
Number of Shares 26
Section 13. Consolidation, Merger or Sale or Transfer of
Assets Cash Flow or Earning Power 26
Section 14. Fractional Rights and Fractional Shares 29
Section 15. Rights of Action 31
Section 16. Agreement of Rights Holders 31
Section 17. Rights Certificate Holder Not Deemed a
Stockholder 32
Section 18. Concerning the Rights Agent 33
Section 19. Merger or Consolidation or Change of Name
of Rights Agent 33
Section 20. Duties of Rights Agent 34
Section 21. Change of Rights Agent 36
Section 22. Issuance of New Rights Certificates 37
Section 23. Redemption and Termination 38
Section 24. Exchange 38
Section 25. Notice of Certain Events 40
Section 26. Notices 41
Section 27. Supplements and Amendments 42
Section 28. Successors 42
Section 29. Determinations and Actions by the Board of
Directors, etc. 42
Section 30. Benefits of this Agreement 43
Section 31. Severability 43
Section 32. Governing Law 43
Section 33. Counterparts 44
Section 34. Descriptive Headings 44
EXHIBITS
Exhibit A Form of Certificate of Designation,
Preferences and Rights
Exhibit B Form of Rights Certificates
Exhibit C Form of Summary of Rights
RIGHTS AGREEMENT
RIGHTS AGREEMENT, dated as of June 1, 2001 (the
"Agreement"), between Wm. Wrigley Jr. Company, a Delaware
corporation (the "Company"), and EquiServe, L.P., a Delaware
limited partnership (the "Rights Agent").
W I T N E S S E T H
WHEREAS, on May 23, 2001 (the "Rights Dividend
Declaration Date"), the Board of Directors of the Company
authorized and declared a dividend distribution of (i) one Right
(as hereinafter defined) for each share of common stock, no par
value per share, of the Company (the "Common Stock") and (ii)
one Right for each share of class B common stock, no par value
per share (the "Class B Common Stock"), outstanding at the close
of business on June 6, 2001 (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(p) hereof) for each share of Common Stock or Class B Common
Stock issued between the Record Date (whether originally issued
or delivered from the Company's treasury) and the Distribution
Date (as hereinafter defined), each Right initially representing
the right to purchase one one-thousandth of a share of Series A
Junior Participating Preferred Stock of the Company (the
"Preferred Stock") having the rights, powers and preferences set
forth in the form of Certificate of Designation, Preferences and
Rights attached hereto as Exhibit A, upon the terms and subject
to the conditions hereinafter set forth (the "Rights");
NOW, THEREFORE, in consideration of the premises and
the mutual agreements herein set forth, the parties hereby agree
as follows:
Section 1. Certain Definitions. For purposes of this
Agreement, the following terms have the meanings indicated:
(a) "Acquiring Person" shall mean any Person
who or which, together with all Affiliates and Associates of
such Person, shall be the Beneficial Owner of 15% or more of the
shares of Common Stock then outstanding, but shall not include
(i) the Company, (ii) any Subsidiary of the Company, (iii) any
employee benefit plan of the Company, or of any Subsidiary of
the Company, or any Person or entity organized, appointed or
established by the Company for or pursuant to the terms of any
such plan, (iv) any Person who becomes the Beneficial Owner of
fifteen percent (15%) or more of the shares of Common Stock then
outstanding as a result of a reduction in the number of shares
of Common Stock or Class B Common Stock outstanding due to the
repurchase of shares of Common Stock or Class B Common Stock by
the Company unless and until such Person, after becoming aware
that such Person has become the Beneficial Owner of fifteen
percent (15%) or more of the then outstanding shares of Common
Stock, acquires beneficial ownership of additional shares of
Common Stock representing one percent (1%) or more of the shares
of Common Stock then outstanding, (v) any such Person who has
reported or is required to report such ownership (but less than
20%) on Schedule 13G under the Exchange Act (or any comparable
or successor report) or on Schedule 13D under the Exchange Act
(or any comparable or successor report) which Schedule 13D does
not state any intention to or reserve the right to control or
influence the management or policies of the Company or engage in
any of the actions specified in Item 4 of Schedule 13D (other
than the disposition of the Common Stock or Class B Common
Stock) and, within 10 Business Days of being requested by the
Company to advise it regarding the same, certifies to the
Company that such Person acquired shares of Common Stock in
excess of 14.9% inadvertently or without knowledge of the terms
of the Rights and who or which, together with all Affiliates and
Associates, thereafter does not acquire additional shares of
Common Stock while the Beneficial Owner of 15% or more of the
shares of Common Stock then outstanding; provided, however, that
if the Person requested to so certify fails to do so within 10
Business Days, then such Person shall become an Acquiring Person
immediately after such 10-Business-Day period or (vi) any
Wrigley Entity.
(b) "Act" shall mean the Securities Act of
1933, as amended.
(c) "Affiliate" and "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2 of the
General Rules and Regulations under the Exchange Act.
(d) 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, other rights, warrants or options, or
otherwise; provided, however, that a Person shall not be
deemed the "Beneficial Owner" of, or to "beneficially own,"
(A) securities tendered pursuant to a tender or exchange
offer made by such Person or any of such Person's
Affiliates or Associates until such tendered securities are
accepted for purchase or exchange, (B) securities issuable
upon exercise of Rights at any time prior to the occurrence
of a Triggering Event (as hereinafter defined), or (C)
securities issuable
upon exercise of Rights from and after the occurrence of a
Triggering Event which Rights were acquired by such Person
or any of such Person's Affiliates or Associates prior to
the Distribution Date (as hereinafter defined) or pursuant
to Section 3(a) or Section 22 hereof (the "Original
Rights") or pursuant to Section 11(i) hereof in connection
with an adjustment made with respect to any Original
Rights;
(ii) which such Person or any of such
Person's Affiliates or Associates, directly or indirectly,
has the right to vote or dispose of or has "beneficial
ownership" of (as determined pursuant to Rule 13d-3 of the
General Rules and Regulations under the Exchange Act),
including pursuant to any agreement, arrangement or
understanding, whether or not in writing; provided,
however, that a Person shall not be deemed the "Beneficial
Owner" of, or to "beneficially own," any security under
this subparagraph (ii) as a result of an agreement,
arrangement or understanding to vote such security if such
agreement, arrangement or understanding: (A) arises solely
from a revocable proxy given in response to a public proxy
or consent solicitation made pursuant to, and in accordance
with, the applicable provisions of the General Rules and
Regulations under the Exchange Act, and (B) is not
reportable by such Person on Schedule 13D under the
Exchange Act (or any comparable or successor report); or
(iii) which are beneficially owned,
directly or indirectly, by any other Person (or any
Affiliate or Associate thereof) with which such Person (or
any of such Person's Affiliates or Associates) has any
agreement, arrangement or understanding (whether or not in
writing), for the purpose of acquiring, holding, voting
(except pursuant to a revocable proxy as described in the
proviso to subparagraph (ii) of this paragraph (d)) or
disposing of any voting securities of the Company;
provided, however, that nothing in this paragraph (d) shall
cause a Person engaged in business as an underwriter of
securities to be the "Beneficial Owner" of, or to
"beneficially own," any securities acquired through such
Person's participation in good faith in a firm commitment
underwriting until the expiration of forty days after the
date of such acquisition, and then only if such securities
continue to be owned by such Person at such expiration of
forty days.
(e) "Business Day" shall mean any day other
than a Saturday, Sunday or a day on which banking institutions
in the State of New York are authorized or obligated by law or
executive order to close.
(f) "Class B Common Stock" shall have the
meaning set forth in the preamble of this Agreement.
(g) "Close of business" on any given date shall
mean 5:00 P.M., New York City time, on such date; provided,
however, that if such date is not a Business Day, it shall mean
5:00 P.M., New York City time, on the next succeeding Business
Day.
(h) "Common Stock" shall mean the common stock,
no par value 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.
(i) "Common Stock Equivalents" shall have the
meaning set forth in Section 11(a)(iii) hereof.
(j) "Current Market Price" shall have the
meaning set forth in Section 11(d)(i) hereof.
(k) "Current Value" shall have the meaning set
forth in Section 11(a)(iii) hereof.
(l) "Distribution Date" shall have the meaning
set forth in Section 3(a) hereof.
(m) "Equivalent Preferred Stock" shall have the
meaning set forth in Section 11(b) hereof.
(n) "Exchange Act" shall mean the Securities
Exchange Act of 1934, as amended.
(o) "Exchange Ratio" shall have the meaning set
forth in Section 24 hereof.
(p) "Expiration Date" shall have the meaning
set forth in Section 7(a) hereof.
(q) A "Final Expiration Date" shall have the
meaning set forth in Section 7(a) hereof.
(r) "Person" shall mean any individual, firm,
corporation, partnership or other entity.
(s) "Preferred Stock" shall mean shares of
Series A Junior Participating Preferred Stock, no par value per
share, of the Company, and, to the extent that there are not a
sufficient number of shares of Series A Junior Participating
Preferred Stock authorized to permit the full exercise of the
Rights, any other series of preferred stock of the Company
designated for such purpose containing terms substantially
similar to the terms of the Series A Junior Participating
Preferred Stock.
(t) "Principal Party" shall have the meaning
set forth in Section 13(b) hereof.
(u) "Purchase Price" shall have the meaning set
forth in Section 4(a)(ii) hereof.
(v) "Qualified Offer" shall have the meaning
set forth in Section 11(a)(ii) hereof.
(w) "Record Date" shall have the meaning set
forth in the preamble of this Agreement.
(x) "Rights" shall have the meaning set forth
in the preamble of this Agreement.
(y) "Rights Agent" shall have the meaning set
forth in the preamble of this Agreement.
(z) "Rights Certificate" shall have the meaning
set forth in Section 3(a) hereof.
(aa) "Rights Dividend Declaration Date" shall
have the meaning set forth in the preamble of this Agreement.
(aa) "Section 11(a)(ii) Event" shall mean any
event described in Section 11(a)(ii) hereof.
(bb) "Section 13 Event" shall mean any event
described in clauses (x), (y) or (z) of Section 13(a) hereof.
(cc) "Spread" shall have the meaning set forth
in Section 11(a)(iii) hereof.
(dd) "Stock Acquisition Date" shall mean the
first date of public announcement (which, for purposes of this
definition, shall include, without limitation, a report filed or
amended pursuant to Section 13(d) under the Exchange Act) by the
Company or an Acquiring Person that an Acquiring Person has
become such.
(ee) "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.
(ff) "Substitution Period" shall have the
meaning set forth in Section 11(a)(iii) hereof.
(gg) "Summary of Rights" shall have the meaning
set forth in Section 3(b) hereof.
(hh) "Trading Day" shall have the meaning set
forth in Section 11(d)(i) hereof.
(ii) "Triggering Event" shall mean any Section
11(a)(ii) Event or any Section 13 Event.
(jj) A "Wrigley Entity" shall mean each member
of the class consisting of (i) Xx. Xxxxxxx Xxxxxxx, Xx. ("Xx.
Xxxxxxx"), (ii) all descendants of Xx. Xxxxxxx, (iii) all trusts
of which a person referred to in the preceding clauses (i) and
(ii) is a beneficiary, (iv) all trusts of which Xx. Xxxxxxx or a
descendant of his is acting as sole trustee or as a co-trustee,
and (v) all entities in which any one or more of the class
consisting of the persons listed in the preceding clauses (i)
through (iv) shall have at least fifty percent (50%) of the
total voting power. For purposes of this definition, a person
shall be treated as holding voting power or an equity interest
to the extent such power or interest is held directly or
indirectly through a corporation, partnership, estate, trust, or
other entity.
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 and Class B 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 as it may deem necessary or
desirable upon ten (10) days prior written notice to the Rights
Agent. The Rights Agent shall have no duty to supervise, and
shall in no event be liable for, the acts or omissions of any
such co-rights agent.
Section 3. Issuance of Rights Certificates.
(a) Until the earlier of (i) the close of
business on the tenth day after the Stock Acquisition Date (or,
if the tenth day after the Stock Acquisition Date occurs before
the Record Date, the close of business on the Record Date), or
(ii) the close of business on the tenth Business Day (or such
later date as the Board shall determine) after the date that a
tender or exchange offer by any Person (other than the Company,
any Subsidiary of the Company, any employee benefit plan of the
Company or of any Subsidiary of the Company, any Person or
entity organized, appointed or established by the Company for or
pursuant to the terms of any such plan or any Wrigley Entity) is
first published or sent or given within the meaning of Rule
14d-2(a) of the General Rules and Regulations under the Exchange
Act, if upon consummation thereof, such Person would become an
Acquiring Person, in either instance other than pursuant to a
Qualified Offer (the earlier of (i) and (ii) being herein
referred to as the "Distribution Date"), (x) the Rights will be
evidenced (subject to the provisions of paragraph (b) of this
Section 3) by the certificates for the Common Stock and Class B
Common Stock registered in the names of the holders of the
Common Stock and Class B Common Stock(which certificates for
Common Stock and Class B Common Stock shall be deemed also to be
certificates for Rights) and not by separate certificates, and
(y) the Rights will be transferable only in connection with the
transfer of the underlying shares of Common Stock or Class B
Common Stock (including a transfer to the Company). As soon as
practicable after the Distribution Date, the Rights Agent will
send by first-class, insured, postage-prepaid mail, to each
record holder of the Common Stock and Class B Common Stock as of
the close of business on the Distribution Date, at the address
of such holder shown on the records of the Company, one or more
rights certificates, in substantially the form of Exhibit B
hereto (the "Rights Certificates"), evidencing one Right for
each share of Common Stock or Class B Common Stock so held,
subject to adjustment as provided herein. In the event that an
adjustment in the number of Rights per share of Common Stock or
Class B Common Stock has been made pursuant to Section 11(p)
hereof, at the time of distribution of the 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 Rights
are distributed and cash is paid in lieu of any fractional
Rights. As of and after the Distribution Date, the Rights will
be evidenced solely by such Rights Certificates.
(b) The Company will make available, as promptly
as practicable following the Record Date, a copy of a Summary of
Rights, in substantially the form attached hereto as Exhibit C
(the "Summary of Rights") to any holder of Rights who may so
request from time to time prior to the Expiration Date. With
respect to certificates for the Common Stock and Class B Common
Stock outstanding as of the Record Date, or issued subsequent to
the Record Date, unless
and until the Distribution Date shall occur, the Rights will be
evidenced by such certificates for the Common Stock and Class B
Common Stock and the registered holders of the Common Stock and
Class B Common Stock shall also be the registered holders of the
associated Rights. Until the earlier of the Distribution Date
or the Expiration Date (as such term is defined in Section 7(a)
hereof), the transfer of any certificates representing shares of
Common Stock or Class B 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 or Class B
Common Stock.
(c) Rights shall be issued in respect of all
shares of Common Stock and Class B Common Stock which are issued
(whether originally issued or from the Company's treasury) after
the Record Date but prior to the earlier of the Distribution
Date or the Expiration Date. Certificates representing such
shares of Common Stock or Class B 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 Wm. Wrigley Jr. Company (the
"Company") and the Rights Agent thereunder (the
"Rights Agent") (the "Rights Agreement"), the terms of
which are hereby incorporated herein by reference and
a copy of which is on file at the principal offices of
the Company. Under certain circumstances, as set
forth in the Rights Agreement, such Rights will be
evidenced by separate certificates and will no longer
be evidenced by this certificate. The Company will
mail to the holder of this certificate a copy of the
Rights Agreement, as in effect on the date of mailing,
without charge, promptly after receipt of a written
request therefor. Under certain circumstances set
forth in the Rights Agreement, Rights issued to, or
held by, any Person who is, was or becomes an
Acquiring Person or any Affiliate or Associate thereof
(as such terms are defined in the Rights Agreement),
whether currently held by or on behalf of 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 Distribution Date or (ii)
the Expiration Date, the Rights associated with the Common Stock
or Class B Common Stock represented by such certificates shall
be evidenced by such certificates alone and registered holders
of Common Stock and Class B 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 or Class B Common
Stock represented by such certificates.
Section 4. Form of Rights Certificates.
(a) The 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 B hereto and may have such marks of
identification or designation and such legends, summaries or
endorsements printed thereon as the Company may deem appropriate
and as are not inconsistent with the provisions of this
Agreement, or as may be required to comply with any applicable
law or with any rule or regulation made pursuant thereto or with
any rule or regulation of any stock exchange on which the Rights
may from time to time be listed, or to conform to usage.
Subject to the provisions of Section 11 and Section 22 hereof,
the Rights Certificates, whenever distributed, shall be dated as
of the Record Date and on their face shall entitle the holders
thereof to purchase such number of one one-thousandths of a
share of Preferred Stock as shall be set forth therein at the
price set forth therein (such exercise price per one one-
thousandth of a share, 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 11(i) or Section 22 hereof that represents
Rights beneficially owned by: (i) an Acquiring Person or any
Associate or Affiliate of an Acquiring Person, (ii) a transferee
of an Acquiring Person (or of any such Associate or Affiliate)
who becomes a transferee after the Acquiring Person becomes
such, or (iii) a transferee of an Acquiring Person (or of any
such Associate or 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 the avoidance of Section 7(e)
hereof, and any Rights Certificate issued pursuant to Section 6
or Section 11 hereof upon transfer, exchange, replacement or
adjustment of any other Rights Certificate referred to in this
sentence, shall contain (to the extent feasible) the following
legend:
The Rights represented by this Rights Certificate are
or were beneficially owned by a Person who was or
became an Acquiring Person or an Affiliate or
Associate of an Acquiring Person (as such terms are
defined in the 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 the Rights 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 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
countersigned by the Rights Agent, either manually or by
facsimile signature and shall not be valid for any purpose
unless so countersigned. In case any officer of the Company who
shall have signed any of the 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 Distribution Date, 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 Certificates; Mutilated, Destroyed, Lost or Stolen Rights
Certificates.
(a) Subject to the provisions of Section 4(b),
Section 7(e) and Section 14 hereof, at any time after the close
of business on the Distribution Date, and at or prior to the
close of business on the Expiration Date, any Rights Certificate
or Certificates (other than Rights Certificates representing
Rights that may have been exchanged pursuant to Section 24
hereof) may be transferred, split up, combined or exchanged for
another Rights Certificate or Certificates, entitling the
registered holder to purchase a like number of one
one-thousandths of a share of Preferred Stock (or, following a
Triggering Event, Common Stock, other securities, cash or other
assets, as the case may be) as the Rights Certificate or
Certificates surrendered then entitles 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), Section 14 hereof and Section 24 hereof,
countersign and deliver to the Person entitled thereto a Rights
Certificate or Rights Certificates, as the case may be, as so
requested. The Company may require payment of a sum sufficient
to cover any tax or governmental charge that may be imposed in
connection with any transfer, split up, combination or exchange
of Rights Certificates.
(b) Upon receipt by the Company and the Rights
Agent of evidence reasonably satisfactory to them of the loss,
theft, destruction or mutilation of a 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, at any time after
the Distribution Date the registered holder of any Rights
Certificate may exercise the Rights evidenced thereby (except as
otherwise provided herein including, without limitation, the
restrictions on exercisability set forth in Section 9(c),
Section 11(a)(iii) and Section 23(a) hereof) in whole or in part
upon surrender of the Rights Certificate, with the form of
election to purchase and the certificate on the reverse side
thereof duly executed, to the Rights Agent at the principal
office or offices of the Rights Agent designated for such
purpose, together with payment of the aggregate Purchase Price
with respect to the total number of one one-thousandths of a
share (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 earlier of (i) 5:00 P.M., New
York City time, on June 6, 2011, or such later date as may be
established by the Board of Directors prior to the expiration of
the Rights (such date, as it may be extended by the Board, the
"Final Expiration Date"), or (ii) the time at which the Rights
are redeemed or exchanged as provided in Section 23 and Section
24 hereof (the earlier of (i) and (ii) being herein referred to
as the "Expiration Date").
(b) The Purchase Price for each one one-
thousandth of a share of Preferred Stock pursuant to the
exercise of a Right initially shall be $250.00, shall be subject
to adjustment from time to time as provided in Section 11 and
Section 13(a) hereof and shall be payable in accordance with
paragraph (c) below.
(c) Upon receipt of a Rights Certificate
representing exercisable Rights, with the form of election to
purchase and the certificate duly executed, accompanied by
payment, with respect to each Right so exercised, of the
Purchase Price per one one-thousandth of a share of Preferred
Stock (or other shares, securities, cash or other assets, as the
case may be) to be purchased as set forth below and an amount
equal to any applicable transfer tax, the Rights Agent shall,
subject to Section 20(k) hereof, thereupon promptly (i) (A)
requisition from any transfer agent of the shares of Preferred
Stock (or make available, if the Rights Agent is the transfer
agent for such shares) certificates for the total number of one
one-thousandths of a share of Preferred Stock to be purchased
and the Company hereby irrevocably authorizes its transfer agent
to comply with all such requests, or (B) if the Company shall
have elected to deposit the total number of shares of Preferred
Stock issuable upon exercise of the Rights hereunder with a
depositary agent, requisition from the depositary agent
depositary receipts representing such number of one one-
thousandths of a share of Preferred Stock as are to be purchased
(in which case certificates for the shares of Preferred Stock
represented by such receipts shall be deposited by the transfer
agent with the depositary agent) and the Company will direct the
depositary agent to comply with such request, (ii) requisition
from the Company the amount of cash, if any, to be paid in lieu
of fractional shares in accordance with Section 14 hereof, (iii)
after receipt of such certificates or depositary receipts, cause
the same to be delivered to or, upon the order of the registered
holder of such Rights Certificate, registered in such name or
names as may be designated by such holder, and (iv) after
receipt thereof, deliver such cash, if any, to or upon the order
of the registered holder of such Rights Certificate. The
payment of the Purchase Price (as such amount may be reduced
pursuant to Section 11(a)(iii) hereof) shall be made in cash or
by certified bank check or bank draft payable to the order of
the Company. In the event that the Company is obligated to
issue other securities (including Common Stock) of the Company,
pay cash and/or distribute other property pursuant to Section
11(a) hereof, the Company will make all arrangements necessary
so that such other securities, cash and/or other property are
available for distribution by the Rights Agent, if and when
appropriate. The Company reserves the right to require prior to
the occurrence of a Triggering Event that, upon any exercise of
Rights, a number of Rights be exercised so that only whole
shares of Preferred Stock would be issued.
(d) In case the registered holder of any Rights
Certificate shall exercise less than all the Rights evidenced
thereby, a new Rights Certificate evidencing the Rights
remaining unexercised shall be issued by the Rights Agent and
delivered to, or upon the order of, the registered holder of
such Rights Certificate, registered in such name or names as may
be designated by such holder, subject to the provisions of
Section 14 hereof.
(e) Notwithstanding anything in this Agreement to the
contrary, from and after the first occurrence of a Section
11(a)(ii) Event, any Rights beneficially owned by (i) an
Acquiring Person or an Associate or Affiliate of an Acquiring
Person, (ii) a transferee of an Acquiring Person (or of any such
Associate or Affiliate) who becomes a transferee after the
Acquiring Person becomes such, or (iii) a transferee of an
Acquiring Person (or of any such Associate or Affiliate) who
becomes a transferee prior to or concurrently with the Acquiring
Person becoming such and receives such Rights pursuant to either
(A) a transfer (whether or not for consideration) from the
Acquiring Person to holders of equity interests in such
Acquiring Person or to any Person with whom the Acquiring Person
has any continuing agreement, arrangement or understanding
regarding the transferred Rights or (B) a transfer which the
Board of Directors of the Company has determined is part of a
plan, arrangement or understanding which has as a primary
purpose or effect the avoidance of this Section 7(e), shall
become null and void without any further action and no holder of
such Rights shall have any rights whatsoever with respect to
such Rights, whether under any provision of this Agreement or
otherwise. The Company shall use all reasonable efforts to
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 any other Person as a result of
its failure to make any determinations with respect to an
Acquiring Person or any of its Affiliates, Associates or
transferees hereunder.
(e) Notwithstanding anything in this Agreement
to the contrary, neither the Rights Agent nor the Company shall
be obligated to undertake any action with respect to a
registered holder upon the occurrence of any purported exercise
as set forth in this Section 7 unless such registered holder
shall have (i) completed and signed the certificate contained in
the form of election to purchase set forth on the reverse side
of the Rights Certificate surrendered for such exercise, and
(ii) provided such additional evidence of the identity of the
Beneficial Owner (or former Beneficial Owner) or Affiliates or
Associates thereof as the Company shall reasonably request.
Section 8. Cancellation and Destruction of
Rights Certificates.
All Rights Certificates surrendered for the purpose of
exercise, transfer, split-up, combination or exchange shall, if
surrendered to the Company or any of its agents, be delivered to
the Rights Agent for cancellation or in cancelled form, or, if
surrendered to the Rights Agent, shall be cancelled by it, and
no Rights Certificates shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Agreement.
The Company shall deliver to the Rights Agent for cancellation
and retirement, and the Rights Agent shall so cancel and retire,
any other Rights Certificate purchased or acquired by the
Company otherwise than upon the exercise thereof. The Rights
Agent shall deliver all cancelled Rights Certificates to the
Company, or shall, at the written request of the Company,
destroy such cancelled Rights Certificates, and in such case
shall deliver a certificate of destruction thereof to the
Company.
Section 9. Reservation and Availability of Capital Stock.
(a) The Company covenants and agrees that it will
cause to be reserved and kept available out of its authorized
and unissued shares of Preferred Stock (and, following the
occurrence of a Triggering Event, out of its authorized and
unissued shares of Common Stock and/or other securities or out
of its authorized and issued shares held in its treasury), the
number of shares of Preferred Stock (and, following the
occurrence of a Triggering Event, Common Stock and/or other
securities) that, as provided in this Agreement including
Section 11(a)(iii) hereof, will be sufficient to permit the
exercise in full of all outstanding Rights.
(b) So long as the shares of Preferred Stock (and,
following the occurrence of a Triggering Event, Common Stock
and/or other securities) issuable and deliverable upon the
exercise of the Rights may be listed on any national securities
exchange, the Company shall use its best efforts to cause, from
and after such time as the Rights become exercisable, all shares
reserved for such issuance to be listed on such exchange upon
official notice of issuance upon such exercise.
(c) The Company shall use its best efforts to (i)
file, as soon as practicable following the earliest date after
the first occurrence of a 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(a)(iii) hereof, 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 ninety (90) days after the date set forth in
clause (i) of the first sentence of this Section 9(c), the
exercisability of the Rights in order to prepare and file such
registration statement and permit it to become effective. 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 has been rescinded. In addition, if
the Company shall determine that a registration statement is
required following the Distribution Date, the Company may
temporarily suspend the exercisability of the Rights until such
time as a registration statement has been declared effective.
Notwithstanding any provision of this Agreement to the contrary,
the Rights shall not be exercisable in any jurisdiction if the
requisite qualification in such jurisdiction shall not have been
obtained, the exercise thereof shall not be permitted under
applicable law, or a registration statement shall not have been
declared effective.
(d) The Company covenants and agrees that it
will take all such action as may be necessary to ensure that all
one one-thousandths of a share of Preferred Stock (and,
following the occurrence of a Triggering Event, Common Stock
and/or other securities) delivered upon exercise of Rights
shall, at the time of delivery of the certificates for such
shares (subject to payment of the Purchase Price), be duly and
validly authorized and issued and fully paid and nonassessable.
(e) The Company further covenants and agrees
that it will pay when due and payable any and all federal and
state transfer taxes and charges which may be payable in respect
of the issuance or delivery of the Rights Certificates and of
any certificates for a number of one one-thousandths of a share
of Preferred Stock (or Common Stock and/or other securities, as
the case may be) upon the exercise of Rights. The Company shall
not, however, be required to pay any transfer tax which may be
payable in respect of any transfer or delivery of Rights
Certificates to a Person other than, or the issuance or delivery
of a number of one one-thousandths of a share of Preferred Stock
(or Common Stock and/or other securities, as the case may be) in
respect of a name other than that of the registered holder of
the Rights Certificates evidencing Rights surrendered for
exercise or to issue or deliver any certificates for a number of
one one-thousandths of a share of Preferred Stock (or Common
Stock and/or other securities, as the case may be) in a name
other than that of the registered holder upon the exercise of
any Rights until such tax shall have been paid (any such tax
being payable by the holder of such Rights Certificates at the
time of surrender) or until it has been established to the
Company's satisfaction that no such tax is due.
Section 10. Preferred Stock Record Date. Each person in
whose name any certificate for a number of one one-thousandths
of a share of Preferred Stock (or Common Stock and/or other
securities, as the case may be) is issued upon the exercise of
Rights shall for all purposes be deemed to have become the
holder of record of such fractional shares of Preferred Stock
(or Common Stock and/or other securities, as the case may be)
represented thereby on, and such certificate shall be dated, the
date upon which the Rights Certificate evidencing such Rights
was duly surrendered and payment of the Purchase Price (and all
applicable transfer taxes) was made; provided, however, that if
the date of such surrender and payment is a date upon which the
Preferred Stock (or Common Stock and/or other securities, as the
case may be) transfer books of the Company are closed, such
Person shall be deemed to have become the record holder of such
shares (fractional or otherwise) on, and such certificate shall
be dated, the next succeeding Business Day on which the
Preferred Stock (or Common Stock and/or other securities, as the
case may be) transfer books of the Company are open. Prior to
the exercise of the Rights evidenced thereby, the holder of a
Rights Certificate shall not be entitled to any rights of a
stockholder of the Company with respect to shares for which the
Rights shall be exercisable, including, without limitation, the
right to vote, to receive dividends or other distributions or to
exercise any preemptive rights, and shall not be entitled to
receive any notice of any proceedings of the Company, except as
provided herein.
Section 11. Adjustment of Purchase Price, Number and Kind
of Shares or Number of Rights. The Purchase Price, the number
and kind of shares covered by each Right and the number of
Rights outstanding are subject to adjustment from time to time
as provided in this Section 11.
(a) (i) In the event the Company shall
at any time after the date of this Agreement (A)
declare a dividend on the Preferred Stock payable in
shares of Preferred Stock, (B) subdivide the
outstanding Preferred Stock, (C) combine the
outstanding Preferred Stock into a smaller number of
shares, or (D) issue any shares of its capital stock
in a reclassification of the Preferred Stock
(including any such reclassification in connection
with a consolidation or merger in which the Company is
the continuing or surviving corporation), except as
otherwise provided in this Section 11(a) and Section
7(e) hereof, the Purchase Price in effect at the time
of the record date for such dividend or of the
effective date of such subdivision, combination or
reclassification, and the number and kind of shares of
Preferred Stock or capital stock, as the case may be,
issuable on such date, shall be proportionately
adjusted so that the holder of any Right exercised
after such time shall be entitled to receive, upon
payment of the Purchase Price then in effect, the
aggregate number and kind of shares of Preferred Stock
or capital stock, as the case may be, which, if such
Right had been exercised immediately prior to such
date and at a time when the Preferred Stock transfer
books of the Company were open, such holder would have
owned upon such exercise and been entitled to receive
by virtue of such dividend, subdivision, combination
or reclassification. If an event occurs which would
require an adjustment under both this Section 11(a)(i)
and Section 11(a)(ii) hereof, the adjustment provided
for in this Section 11(a)(i) shall be in addition to,
and shall be made prior to, any adjustment required
pursuant to Section 11(a)(ii) hereof.
(ii) In the event any Person shall, at
any time after the Rights Dividend Declaration Date,
become an Acquiring Person, unless the event causing
such Person to become an Acquiring Person is a
transaction set forth in Section 13(a) hereof, or is
an acquisition of shares of Common Stock pursuant to a
tender offer or an exchange offer for all outstanding
shares of Common Stock at a price and on terms
determined by at least a majority of the members of
the Board of Directors who are not officers of the
Company and who are not representatives, nominees,
Affiliates or Associates of an Acquiring Person, after
receiving advice from one or more investment banking
firms, to be (a) at a price which is fair to
stockholders and not inadequate (taking into account
all factors which such members of the Board deem
relevant, including, without limitation, prices which
could reasonably be achieved if the Company or its
assets were sold on an orderly basis designed to
realize maximum value) and (b) otherwise in the best
interests of the Company and its stockholders (an
offer that meets the criteria set forth in both
clauses (a) and (b) is referred to as a "Qualified
Offer") then, promptly following the occurrence of
such event, proper provision shall be made so that
each holder of a Right (except as provided below and
in Section 7(e) hereof) shall thereafter have the
right to receive, upon exercise thereof at the then
current Purchase Price in accordance with the terms of
this Agreement, in lieu of a number of one one-
thousandths of a share of Preferred Stock, such number
of shares of Common Stock of the Company as shall
equal the result obtained by (x) multiplying the then
current Purchase Price by the then number of one one-
thousandths of a share of Preferred Stock for which a
Right was exercisable immediately prior to the first
occurrence of a Section 11(a)(ii) Event, and (y)
dividing that product (which, following such first
occurrence, shall thereafter be referred to as the
"Purchase Price" for each Right and for all purposes
of this Agreement) by 50% of the Current Market Price
(determined pursuant to Section 11(d) hereof) per
share of Common Stock on the date of such first
occurrence (such number of shares, the "Adjustment
Shares").
(iii) In the event that the number of
shares of Common Stock which is authorized by the
Company's Restated Certificate of Incorporation, as
amended, but not outstanding or reserved for issuance
for purposes other than upon exercise of the Rights,
is not sufficient to permit the exercise in full of
the Rights in accordance with the foregoing
subparagraph (ii) of this Section 11(a), the Company
shall (A) determine the value of the Adjustment Shares
issuable upon the exercise of a Right (the "Current
Value"), and (B) with respect to each Right (subject
to Section 7(e) hereof), make adequate provision to
substitute for the Adjustment Shares, upon the
exercise of a Right and payment of the applicable
Purchase Price, (1) cash, (2) a reduction in the
Purchase Price, (3) Common Stock or other equity
securities of the Company (including, without
limitation, shares, or units of shares, of preferred
stock, such as the Preferred Stock, which the Board
has deemed to have essentially the same value or
economic rights as shares of Common Stock (such shares
of preferred stock being referred to as "Common Stock
Equivalents")), (4) debt securities of the Company,
(5) other assets, or (6) any combination of the
foregoing, having an aggregate value equal to the
Current Value (less the amount of any reduction in the
Purchase Price), where such aggregate value has been
determined by the Board based upon the advice of a
nationally recognized investment banking firm selected
by the Board; provided, however, that if the Company
shall not have made adequate provision to deliver
value pursuant to clause (B) above within thirty (30)
days following the later of (x) the first occurrence
of a Section 11(a)(ii) Event and (y) the date on which
the Company's right of redemption pursuant to Section
23(a) expires (the later of (x) and (y) being referred
to herein as the "Section 11(a)(ii) Trigger Date"),
then the Company shall be obligated to deliver, upon
the surrender for exercise of a Right and without
requiring payment of the Purchase Price, shares of
Common Stock (to the extent available) and then, if
necessary, cash, which shares and/or cash have an
aggregate value equal to the Spread. For purposes of
the preceding sentence, the term "Spread" shall mean
the excess of (i) the Current Value over (ii) the
Purchase Price. If the Board determines in good faith
that it is likely that sufficient additional shares of
Common Stock could be authorized for issuance upon
exercise in full of the Rights, the thirty (30) day
period set forth above may be extended to the extent
necessary, but not more than ninety (90) days after
the Section 11(a)(ii) Trigger
Date, in order that the Company may seek shareholder
approval for the authorization of such additional
shares (such thirty (30) day period, as it may be
extended, is herein called the "Substitution Period").
To the extent that the Company determines that action
should be taken pursuant to the first and/or third
sentences of this Section 11(a)(iii), the Company (1)
shall provide, subject to Section 7(e) hereof, that
such action shall apply uniformly to all outstanding
Rights, and (2) may suspend the exercisability of the
Rights until the expiration of the Substitution Period
in order to seek such shareholder approval for such
authorization of additional shares and/or to decide
the appropriate form of distribution to be made
pursuant to such first sentence and to determine the
value thereof. In the event of any such suspension,
the Company shall issue a public announcement stating
that the exercisability of the Rights has been
temporarily suspended, as well as a public
announcement at such time as the suspension is no
longer in effect. For purposes of this Section
11(a)(iii), the value of each Adjustment Share shall
be the Current Market Price per share of the Common
Stock on the Section 11(a)(ii) Trigger Date and the
per share or per unit value of any Common Stock
Equivalent shall be deemed to equal the Current Market
Price per share of the Common Stock on such date.
(b) In case the Company shall fix a record date
for the issuance of rights, options or warrants to all holders
of Preferred Stock entitling them to subscribe for or purchase
(for a period expiring within forty-five (45) calendar days
after such record date) Preferred Stock (or shares having the
same rights, privileges and preferences as the shares of
Preferred Stock ("Equivalent Preferred Stock")) or securities
convertible into Preferred Stock or Equivalent Preferred Stock
at a price per share of Preferred Stock or per share of
Equivalent Preferred Stock (or having a conversion price per
share, if a security convertible into Preferred Stock or
Equivalent Preferred Stock) less than the Current Market Price
(as determined pursuant to Section 11(d) hereof) per share of
Preferred Stock on such record date, the Purchase Price to be in
effect after such record date shall be determined by multiplying
the Purchase Price in effect immediately prior to such record
date by a fraction, the numerator of which shall be the number
of shares of Preferred Stock outstanding on such record date,
plus the number of shares of Preferred Stock which the aggregate
offering price of the total number of shares of Preferred Stock
and/or Equivalent Preferred Stock so to be offered (and/or the
aggregate initial conversion price of the convertible securities
so to be offered) would purchase at such Current Market Price,
and the denominator of which shall be the number of shares of
Preferred Stock outstanding on such record date, plus the number
of additional shares of Preferred Stock and/or Equivalent
Preferred Stock to be offered for subscription or purchase (or
into which the convertible securities so to be offered are
initially convertible). In case such subscription price may be
paid by delivery of consideration, part or all of which may be
in a form other than cash, the value of such consideration shall
be as determined in good faith by the Board of Directors of the
Company, whose determination shall be described in a statement
filed with the Rights Agent and shall be binding on the Rights
Agent and the holders of the Rights. Shares of Preferred Stock
owned by or held for the account of the Company shall not be
deemed outstanding for the purpose of any such computation.
Such adjustment shall be made successively whenever such a
record date is fixed, and in the event that such rights or
warrants are not so issued, the Purchase Price shall be adjusted
to be the Purchase Price which would then be in effect if such
record date had not been fixed.
(c) In case the Company shall fix a record date
for a distribution to all holders of Preferred Stock (including
any such distribution made in connection with a consolidation or
merger in which the Company is the continuing corporation), cash
(other than a regular quarterly cash dividend out of the
earnings or retained earnings of the Company), assets (other
than a dividend payable in Preferred Stock, but including any
dividend payable in stock other than Preferred Stock) or
evidences of indebtedness, or of subscription rights or warrants
(excluding those referred to in Section 11(b) hereof), the
Purchase Price to be in effect after such record date shall be
determined by multiplying the Purchase Price in effect
immediately prior to such record date by a fraction, the
numerator of which shall be the Current Market Price (as
determined pursuant to Section 11(d) hereof) per share of
Preferred Stock on such record date, less the fair market value
(as determined in good faith by the Board of Directors of the
Company, whose determination shall be described in a statement
filed with the Rights Agent) of the portion of the cash, assets
or evidences of indebtedness so to be distributed or of such
subscription rights or warrants applicable to a share of
Preferred Stock, and the denominator of which shall be such
Current Market Price (as determined pursuant to Section 11(d)
hereof) per share of Preferred Stock. Such adjustments shall be
made successively whenever such a record date is fixed, and in
the event that such distribution is not so made, the Purchase
Price shall be adjusted to be the Purchase Price which would
have been in effect if such record date had not been fixed.
(d) (i) For the purpose of any computation
hereunder, other than computations made pursuant to Section
11(a)(iii) hereof, the Current Market Price per share of
Common Stock on any date shall be deemed to be the average
of the daily closing prices per share of such Common Stock
for the thirty (30) consecutive Trading Days immediately
prior to such date, and for purposes of computations made
pursuant to Section 11(a)(iii) hereof, the Current Market
Price per share of Common Stock on any date shall be deemed
to be the average of the daily closing prices per share of
such Common Stock for the ten (10) consecutive Trading Days
immediately following such date; provided, however, that in
the event that the Current Market Price per share of the
Common Stock is determined during a period following the
announcement by the issuer of such Common Stock of (A) a
dividend or distribution on such Common Stock payable in
shares of such Common Stock or securities convertible into
shares of such Common Stock (other than the Rights), or (B)
any subdivision, combination or reclassification of such
Common Stock, and the ex-dividend date for such dividend or
distribution, or the record date for such subdivision,
combination or reclassification shall not have occurred
prior to the commencement of the requisite thirty (30)
Trading Day or ten (10) Trading Day period, as set forth
above, then, and in each such case, the Current Market
Price shall be properly adjusted to take into account ex-
dividend trading. The closing price for each day shall be
the last sale price, regular way, or, in case no such sale
takes place on such day, the average of the closing bid and
asked prices, regular way, in either case as reported in
the principal consolidated transaction reporting system
with respect to securities listed or admitted to trading on
the New York Stock Exchange or, if the shares of Common
Stock are not listed or admitted to trading on the New York
Stock Exchange, as reported in the principal consolidated
transaction reporting system with respect to securities
listed on the principal national securities exchange on
which the shares of Common Stock are listed or admitted to
trading or, if the shares of Common Stock are not listed or
admitted to trading on any national securities exchange,
the last quoted price or, if not so quoted, the average of
the high bid and low asked prices in the over-the-counter
market, as reported by the National Association of
Securities Dealers Automated Quotation System ("NASDAQ") or
such other system then in use, or, if on any such date the
shares of Common Stock are not quoted by any such
organization, the average of the closing bid and asked
prices as furnished by a professional market maker making a
market in the Common Stock selected by the Board. 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 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, whose
determination shall be described in a statement filed with
the Rights Agent and shall be conclusive for all purposes.
(ii) For the purpose of any computation
hereunder, the Current Market Price per share of
Preferred Stock shall be determined in the same manner
as set forth above for the Common Stock in clause (i)
of this Section 11(d) (other than the last sentence
thereof). If the Current Market Price per share of
Preferred Stock cannot be determined in the manner
provided above or if the Preferred Stock is not
publicly held or listed or traded in a manner
described in clause (i) of this Section 11(d), the
Current Market Price per share of Preferred Stock
shall be conclusively deemed to be an amount equal to
1,000 (as such number may be appropriately adjusted
for such events as stock splits, stock dividends and
recapitalizations with respect to the Common Stock
occurring after the date of this Agreement) multiplied
by the Current Market Price per share of the Common
Stock. If neither the Common Stock nor the Preferred
Stock is publicly held or so listed or traded, Current
Market Price per share of the Preferred Stock shall
mean the fair value per share as determined in good
faith by the Board, whose determination shall be
described in a statement filed with the Rights Agent
and shall be conclusive for all purposes.
(e) Anything herein to the contrary
notwithstanding, no adjustment in the Purchase Price shall be
required unless such adjustment would require an increase or
decrease of at least one percent (1%) in the Purchase Price;
provided, however, that any adjustments which by reason of this
Section 11(e) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment.
All calculations under this Section 11 shall be made to the
nearest cent or to the nearest ten-thousandth of a share of
Common Stock or other share or one-millionth of a share of
Preferred Stock, as the case may be. Notwithstanding the first
sentence of this Section 11(e), any adjustment required by this
Section 11 shall be made no later than the earlier of (i) three
(3) years from the date of the transaction which mandates such
adjustment, or (ii) the Expiration Date.
(f) If as a result of an adjustment made
pursuant to Section 11(a)(ii) or Section 13(a) hereof, the
holder of any Right thereafter exercised shall become entitled
to receive any shares of capital stock other than Preferred
Stock, thereafter the number of such other shares so receivable
upon exercise of any Right and the Purchase Price thereof shall
be subject to adjustment from time to time in a manner and on
terms as nearly equivalent as practicable to the provisions with
respect to the Preferred Stock contained in Sections 11(a), (b),
(c), (e), (g), (h), (i), (j), (k) and (m), and the provisions of
Sections 7, 9, 10, 13 and 14 hereof with respect to the
Preferred Stock shall apply on like terms to any such other
shares.
(g) All Rights originally issued by the Company
subsequent to any adjustment made to the Purchase Price
hereunder shall evidence the right to purchase, at the adjusted
Purchase Price, the number of one one-thousandths of a share of
Preferred Stock purchasable from time to time hereunder upon
exercise of the Rights, all subject to further adjustment as
provided herein.
(h) Unless the Company shall have exercised its
election as provided in Section 11(i), upon each adjustment of
the Purchase Price as a result of the calculations made in
Sections 11(b) and (c), each Right outstanding immediately prior
to the making of such adjustment shall thereafter evidence the
right to purchase, at the adjusted Purchase Price, that number
of one one-thousandths of a share of Preferred Stock (calculated
to the nearest one-millionth) obtained by (i) multiplying (x)
the number of one one-thousandths of a share covered by a Right
immediately prior to this adjustment, by (y) the Purchase Price
in effect immediately prior to such adjustment of the Purchase
Price, and (ii) dividing the product so obtained by the Purchase
Price in effect immediately after such adjustment of the
Purchase Price.
(i) The Company may elect on or after the date
of any adjustment of the Purchase Price to adjust the number of
Rights, in lieu of any adjustment in the number of one one-
thousandths of a share of Preferred Stock purchasable upon the
exercise of a Right. Each of the Rights outstanding after the
adjustment in the number of Rights shall be exercisable for the
number of one one-thousandths of a share of Preferred Stock for
which a Right was exercisable immediately prior to such
adjustment. Each Right held of record prior to such adjustment
of the number of Rights shall become that number of Rights
(calculated to the nearest one-ten-thousandth) obtained by
dividing the Purchase Price in effect immediately prior to
adjustment of the Purchase Price by the Purchase Price in effect
immediately after adjustment of the Purchase Price. The Company
shall make a public announcement of its election to adjust the
number of Rights, indicating the record date for the adjustment,
and, if known at the time, the amount of the adjustment to be
made. This record date may be the date on which the Purchase
Price is adjusted or any day thereafter, but, if the Rights
Certificates have been issued, shall be at least 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(i), the Company
shall, as promptly as practicable, cause to be distributed to
holders of record of Rights Certificates on such record date
Rights Certificates evidencing, subject to Section 14 hereof,
the additional Rights to which such holders shall be entitled as
a result of such adjustment, or, at the option of the Company,
shall cause to be distributed to such holders of record in
substitution and replacement for the Rights Certificates held by
such holders prior to the date of adjustment, and upon surrender
thereof, if required by the Company, new Rights Certificates
evidencing all the Rights to which such holders shall be
entitled after such adjustment. Rights Certificates so to be
distributed shall be issued, executed and countersigned in the
manner provided for herein (and may bear, at the option of the
Company, the adjusted Purchase Price) and shall be registered in
the names of the holders of record of Rights Certificates on the
record date specified in the public announcement.
(j) Irrespective of any adjustment or change in
the Purchase Price or the number of one one-thousandths of a
share of Preferred Stock issuable upon the exercise of the
Rights, the Rights Certificates theretofore and thereafter
issued may continue to express the Purchase Price per one one-
thousandths of a share and the number of one one-thousandth of a
share which were expressed in the initial Rights Certificates
issued hereunder.
(k) Before taking any action that would cause
an adjustment reducing the Purchase Price below the then stated
value, if any, of the number of one one-thousandths of a share
of Preferred Stock issuable upon exercise of the Rights, the
Company shall take any corporate action which may, in the
opinion of its counsel, be necessary in order that the Company
may validly and legally issue fully paid and nonassessable such
number of one one-thousandths of a share of Preferred Stock at
such adjusted Purchase Price.
(l) In any case in which this Section 11 shall
require that an adjustment in the Purchase Price be made
effective as of a record date for a specified event, the Company
may elect to defer until the occurrence of such event the
issuance to the holder of any Right exercised after such record
date the number of one one-thousandths of a share of Preferred
Stock and other capital stock or securities of the Company, if
any, issuable upon such exercise over and above the number of
one one-thousandths of a share of Preferred Stock and other
capital stock or securities of the Company, if any, issuable
upon such exercise on the basis of the Purchase Price in effect
prior to such adjustment; provided, however, that the Company
shall deliver to such holder a due xxxx or other appropriate
instrument evidencing such holder's right to receive such
additional shares (fractional or otherwise) or securities upon
the occurrence of the event requiring such adjustment.
(m) Anything in this Section 11 to the contrary
notwithstanding, the Company shall be entitled to make such
reductions in the Purchase Price, in addition to those
adjustments expressly required by this Section 11, as and to the
extent that in their good faith judgment the Board of Directors
of the Company shall determine to be advisable in order that any
(i) consolidation or subdivision of the Preferred Stock, (ii)
issuance wholly for cash of any shares of Preferred Stock at
less than the Current Market Price, (iii) issuance wholly for
cash of shares of Preferred Stock or securities which by their
terms are convertible into or exchangeable for shares of
Preferred Stock, (iv) stock dividends or (v) issuance of rights,
options or warrants referred to in this Section 11, hereafter
made by the Company to holders of its Preferred Stock shall not
be taxable to such stockholders.
(n) The Company covenants and agrees that it
shall not, at any time after the Distribution Date, (i)
consolidate with any other Person (other than a Subsidiary of
the Company in a transaction which complies with Section 11(o)
hereof), (ii) merge with or into any other Person (other than a
Subsidiary of the Company in a transaction which complies with
Section 11(o) hereof), or (iii) sell or transfer (or permit any
Subsidiary to sell or transfer), in one transaction, or a series
of related transactions, assets, cash flow or earning power
aggregating more than 50% of the assets or earning power of the
Company and its Subsidiaries (taken as a whole) to any other
Person or Persons (other than the Company and/or any of its
Subsidiaries in one or more transactions each of which complies
with Section 11(o) hereof), if (x) at the time of or immediately
after such consolidation, merger or sale there are any rights,
warrants or other instruments or securities outstanding or
agreements in effect which would substantially diminish or
otherwise eliminate the benefits intended to be afforded by the
Rights or (y) prior to, simultaneously with or immediately after
such consolidation, merger or sale, the shareholders of the
Person who constitutes, or would constitute, the "Principal
Party" for purposes of Section 13(a) hereof shall have received
a distribution of Rights previously owned by such Person or any
of its Affiliates and Associates.
(o) The Company covenants and agrees that,
after the Distribution Date, it will not, except as permitted by
Section 23 or Section 26 hereof, take (or permit any Subsidiary
to take) any action if at the time such action is taken it is
reasonably foreseeable that such action will diminish
substantially or otherwise eliminate the benefits intended to be
afforded by the Rights.
(p) Anything in this Agreement to the contrary
notwithstanding, in the event that the Company shall at any time
after the Rights Dividend Declaration Date and prior to the
Distribution Date (i) declare a dividend on the outstanding
shares of Common Stock or Class B Common Stock payable in shares
of Common Stock or Class B Common Stock, (ii) subdivide the
outstanding shares of Common Stock or Class B Common Stock, or
(iii) combine the outstanding shares of Common Stock or Class B
Common Stock into a smaller number of shares, the number of
Rights associated with each share of Common Stock or Class B
Common Stock, as the case may be, then outstanding, or issued or
delivered thereafter but prior to the Distribution Date, shall
be proportionately adjusted so that the number of Rights
thereafter associated with each share of Common Stock or Class B
Common Stock following any such event shall equal the result
obtained by multiplying the number of Rights associated with
each share of Common Stock or Class B Common Stock immediately
prior to such event by a fraction the numerator which shall be
the total number of shares of Common Stock or Class B Common
Stock outstanding immediately prior to the occurrence of the
event and the denominator of which shall be the total number of
shares of Common Stock or Class B Common Stock outstanding
immediately following the occurrence of such event.
Section 11. Certificate of Adjusted Purchase Price or
Number of Shares. Whenever an adjustment is made as provided in
Section 11 and Section 13 hereof, the Company shall (a) promptly
prepare a certificate setting forth such adjustment and a brief
statement of the facts accounting for such adjustment, (b)
promptly file with the Rights Agent, and with each transfer
agent for the Preferred Stock, the Common Stock and the Class B
Common Stock, a copy of such certificate and (c) if a
Distribution Date has occurred, mail a brief summary thereof to
each holder of a Rights Certificate (or, if prior to the
Distribution Date, to each holder of a Certificate representing
shares of Common Stock or Class B Common Stock) in accordance
with Section 25 hereof. The Rights Agent shall be fully
protected in relying on any such certificate and on any
adjustment therein contained.
Section 12. Consolidation, Merger or Sale or Transfer of
Assets Cash Flow or Earning Power.
(e) In the event that, following the Stock
Acquisition Date, directly or indirectly, (x) the Company shall
consolidate with, or merge with and into, any other Person
(other than a Subsidiary of the Company in a transaction which
complies with Section 11(o) hereof), and the Company shall not
be the continuing or surviving corporation of such consolidation
or merger, (y) any Person (other than a Subsidiary of the
Company in a transaction which complies with Section 11(o)
hereof) shall consolidate with, or merge with or into, the
Company, and the Company shall be the continuing or surviving
corporation of such consolidation or merger and, in connection
with such consolidation or merger, all or part of the
outstanding shares of Common Stock shall be changed into or
exchanged for stock or other securities of any other Person or
cash or any other property, or (z) the Company 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, cash flow or earning power
aggregating more than 50% of the assets, cash flow or earning
power of the Company and its Subsidiaries (taken as a whole) to
any Person or Persons (other than the Company or any Subsidiary
of the Company in one or more transactions each of which
complies with Section 11(o) hereof), then, and in each such case
(except as may be contemplated by Section 13(d) hereof), proper
provision shall be made so that: (i) each holder of a Right,
except as provided in Section 7(e) hereof, shall thereafter have
the right to receive, upon the exercise thereof at the then
current Purchase Price in accordance with the terms of this
Agreement, such number of validly authorized and issued, fully
paid, non-assessable and freely tradeable shares of Common Stock
of the Principal Party (as such term is hereinafter defined),
not subject to any liens, encumbrances, rights of first refusal
or other adverse claims, as shall be equal to the result
obtained by (1) multiplying the then current Purchase Price by
the number of one one-thousandths of a share of Preferred Stock
for which a Right is exercisable immediately prior to the first
occurrence of a Section 13 Event (or, if a Section 11(a)(ii)
Event has occurred prior to the first occurrence of a Section 13
Event, multiplying the number of such one one-thousandths of a
share for which a Right was exercisable immediately prior to the
first occurrence of a Section 11(a)(ii) Event by the Purchase
Price in effect immediately prior to such first occurrence of a
Section 11(a)(ii) Event), and (2) dividing that product (which,
following the first occurrence of a Section 13 Event, shall be
referred to as the "Purchase Price" for each Right and for all
purposes of this Agreement) by 50% of the Current Market Price
(determined pursuant to Section 11(d)(i) hereof) per share of
the Common Stock of such Principal Party on the date of
consummation of such Section 13 Event; (ii) such Principal Party
shall thereafter be liable for, and shall assume, by virtue of
such Section 13 Event, all the obligations and duties of the
Company pursuant to this Agreement; (iii) the term "Company"
shall thereafter be deemed to refer to such Principal Party, it
being specifically intended that the provisions of Section 11
hereof shall apply only to such Principal Party following the
first occurrence of a Section 13 Event; (iv) such Principal
Party shall take such steps (including, but not limited to, the
reservation of a sufficient number of shares of its Common
Stock) in connection with the consummation of any such
transaction as may be necessary to assure that the provisions
hereof shall thereafter be applicable, as nearly as reasonably
may be, in relation to its shares of Common Stock thereafter
deliverable upon the exercise of the Rights; and (v) the
provisions of Section 11(a)(ii) hereof shall be of no effect
following the first occurrence of any Section 13 Event.
(f) "Principal Party" shall mean:
(i) in the case of any transaction
described in clause (x) or (y) of the first sentence of
Section 13(a), the Person that is the issuer of any
securities into which shares of Common Stock of the Company
are converted in such merger or consolidation, and if no
securities are so issued, the Person that is the other
party to such merger or consolidation; and
(ii) in the case of any transaction
described in clause (z) of the first sentence of
Section 13(a), the Person that is the party receiving
the greatest portion of the assets, cash flow or
earning power transferred pursuant to such transaction
or transactions; provided, however, that in any such
case, (1) if the Common Stock of such Person is not at
such time and has not been continuously over the
preceding twelve (12) month period registered under
Section 12 of the Exchange Act, and such Person is a
direct or indirect Subsidiary of another Person the
Common Stock of which is and has been so registered,
"Principal Party" shall refer to such other Person;
and (2) in case such Person is a Subsidiary, directly
or indirectly, of more than one Person, the Common
Stock 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.
(g) The Company shall not consummate any such
consolidation, merger, sale or transfer unless the Principal
Party shall have a sufficient number of authorized shares of its
Common Stock which have not been issued or reserved for issuance
to permit the exercise in full of the Rights in accordance with
this Section 13 and unless prior thereto the Company and such
Principal Party shall have executed and delivered to the Rights
Agent a supplemental agreement providing for the terms set forth
in paragraphs (a) and (b) of this Section 13 and further
providing that, as soon as practicable after the date of any
consolidation, merger 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 Expiration Date; and
(ii) take all such other action
as may be necessary to enable the Principal Party to issue
the securities purchasable upon exercise of the Rights,
including but not limited to the registration or
qualification of such securities under all requisite
securities laws of jurisdictions of the various states and
the listing of such securities on such exchanges and
trading markets as may be necessary or appropriate; and
(iii) will 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.
The provisions of this Section 13 shall similarly apply to
successive mergers or consolidations 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).
(h) Notwithstanding anything in this
Agreement to the contrary, Section 13 shall not be applicable to
a transaction described in subparagraphs (x) and (y) of Section
13(a) if (i) such transaction is consummated with a Person or
Persons who acquired shares of Common Stock pursuant to a tender
offer or exchange offer for all outstanding shares of Common
Stock which is a Qualified Offer as such term is defined in
Section 11(a)(ii)(B) hereof (or a wholly owned subsidiary of any
such Person or Persons), (ii) the price per share of Common
Stock offered in such transaction is not less than the price per
share of Common Stock paid to all holders of shares of Common
Stock whose shares were purchased pursuant to such tender offer
or exchange offer and (iii) the form of consideration being
offered to the remaining holders of shares of Common Stock
pursuant to such transaction is the same as the form of
consideration paid pursuant to such tender offer or exchange
offer. Upon consummation of any such transaction contemplated
by this Section 13(d), all Rights hereunder shall expire.
Section 13. Fractional Rights and Fractional Shares.
(e) The Company shall not be required to issue
fractions of Rights, except prior to the Distribution Date as
provided in Section 11(p) hereof, or to distribute Rights
Certificates which evidence fractional Rights. In lieu of such
fractional Rights, the Company shall pay 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 or admitted to trading on the New York Stock
Exchange or, if the Rights are not listed or admitted to trading
on the New York Stock Exchange, as reported in the principal
consolidated transaction reporting system with respect to
securities listed on the principal national securities exchange
on which the Rights are listed or admitted to trading, or if the
Rights are not listed or admitted to trading on any national
securities exchange, the last quoted price or, if not so quoted,
the average of the high bid and low asked prices in the over-
the-counter market, as reported by NASDAQ or such other system
then in use or, if on any such date the Rights are not quoted by
any such organization, the average of the closing bid and asked
prices as furnished by a professional market maker making a
market in the Rights, selected by the Board of Directors of the
Company. If on any such date no such market maker is making a
market in the Rights, the fair value of the Rights on such date
as determined in good faith by the Board of Directors of the
Company shall be used.
(f) The Company shall not be required to
issue fractions of shares of Preferred Stock (other than
fractions which are integral multiples of one one-thousandth of
a share of Preferred Stock) upon exercise of the Rights or to
distribute certificates which evidence fractional shares of
Preferred Stock (other than fractions which are integral
multiples of one one-thousandth of a share of Preferred Stock).
In lieu of fractional shares of Preferred Stock that are not
integral multiples of one one-thousandth of a share of Preferred
Stock, the Company may pay to the registered holders of Rights
Certificates at the time such Rights are exercised as herein
provided an amount in cash equal to the same fraction of the
current market value of one one-thousandth of a share of
Preferred Stock. For purposes of this Section 14(b), the
current market value of one one-thousandth of a share of
Preferred Stock shall be one one-thousandth of the closing price
of a share of Preferred Stock (as determined pursuant to Section
11(d)(ii) hereof) for the Trading Day immediately prior to the
date of such exercise.
(g) Following the occurrence of a
Triggering Event, the Company shall not be required to issue
fractions of shares of Common Stock upon exercise of the Rights
or to distribute certificates which evidence fractional shares
of Common Stock. 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 (1) share of Common Stock. For
purposes of this Section 14(c), the current market value of one
share of Common Stock shall be the closing price per share of
Common Stock (as determined pursuant to Section 11(d)(i) hereof)
on the Trading Day immediately prior to the date of such
exercise.
(q) 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 14. Rights of Action. All rights of action
in respect of this Agreement are vested in the respective
registered holders of the Rights Certificates (and, prior to the
Distribution Date, the registered holders of the Common Stock
and Class B Common Stock); and any registered holder of any
Rights Certificate (or, prior to the Distribution Date, of the
Common Stock or Class B Common Stock), without the consent of
the Rights Agent or of the holder of any other Rights
Certificate (or, prior to the Distribution Date, of the Common
Stock or Class B Common Stock), may, in his own behalf and for
his own benefit, enforce, and may institute and maintain any
suit, action or proceeding against the Company to enforce, or
otherwise act in respect of, his right to exercise the Rights
evidenced by such Rights Certificate in the manner provided in
such Rights Certificate and in this Agreement. Without limiting
the foregoing or any remedies available to the holders of
Rights, it is specifically acknowledged that the holders of
Rights would not have an adequate remedy at law for any breach
of this Agreement and shall be entitled to specific performance
of the obligations hereunder and injunctive relief against
actual or threatened violations of the obligations hereunder of
any Person subject to this Agreement.
Section 15. Agreement of Rights Holders. Every holder of
a Right by accepting the same consents and agrees with the
Company and the Rights Agent and with every other holder of a
Right that:
(e) prior to the Distribution Date, the
Rights will be transferable only in connection with the transfer
of Common Stock or Class B Common Stock;
(f) after the Distribution Date, the Rights
Certificates are transferable only on the registry books of the
Rights Agent if surrendered at the principal office or offices
of the Rights Agent designated for such purposes, duly endorsed
or accompanied by a proper instrument of transfer and with the
appropriate forms and certificates fully executed;
(g) subject to Section 6(a) and Section
7(f) hereof, the Company and the Rights Agent may deem and treat
the person in whose name a Rights Certificate (or, prior to the
Distribution Date, the associated Common Stock or Class B 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 or Class B Common Stock certificate
made by anyone other than the Company or the Rights Agent) for
all purposes whatsoever, and neither the Company nor the Rights
Agent, subject to the last sentence of Section 7(e) hereof,
shall be required to be affected by any notice to the contrary;
and
(h) 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.
Section 16. Rights Certificate Holder Not Deemed a
Stockholder. No holder, as such, of any Rights Certificate
shall be entitled to vote, receive dividends or be deemed for
any purpose the holder of the number of one one-thousandths of a
share of Preferred Stock or any other securities of the Company
which may at any time be issuable on the exercise of the Rights
represented thereby, nor shall anything contained herein or in
any Rights Certificate be construed to confer upon the holder of
any Rights Certificate, as such, any of the rights of a
stockholder of the Company or any right to vote for the election
of directors or upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate
action, or to receive notice of meetings or other actions
affecting stockholders (except as provided in Section 25
hereof), or to receive dividends or subscription rights, or
otherwise, until the Right or Rights evidenced by such Rights
Certificate shall have been exercised in accordance with the
provisions hereof.
Section 17. Concerning the Rights Agent.
(e) The Company agrees to pay to the Rights Agent
reasonable compensation for all services rendered by it
hereunder and, from time to time, on demand of the Rights Agent,
its reasonable expenses and counsel fees and disbursements and
other disbursements incurred in the administration and execution
of this Agreement and the exercise and performance of its duties
hereunder. The Company also agrees to indemnify the Rights
Agent for, and to hold it harmless against, any loss, liability,
or expense, incurred without 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, including the
costs and expenses of defending against any claim of liability
in the premises.
(f) The Rights Agent shall be protected and shall
incur no liability for or in respect of any action taken,
suffered or omitted by it in connection with its administration
of this Agreement in reliance upon any Rights Certificate or
certificate for Common Stock or Class B Common Stock or for
other securities of the Company, instrument of assignment or
transfer, power of attorney, endorsement, affidavit, letter,
notice, direction, consent, certificate, statement, or other
paper or document believed by it to be genuine and to be signed,
executed and, where necessary, verified or acknowledged, by the
proper Person or Persons.
Section 18. Merger or Consolidation or Change of Name of
Rights Agent.
(e) 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, stock transfer or other shareholder services
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; but only if 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.
(f) 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 19. 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:
(e) 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.
(f) Whenever in the performance of its duties under
this Agreement the Rights Agent shall deem it necessary or
desirable that any fact or matter (including, without
limitation, the identity of any Acquiring Person and the
determination of Current Market Price) be proved or established
by the Company prior to taking or suffering any action
hereunder, such fact or matter (unless other evidence in respect
thereof be herein specifically prescribed) may be deemed to be
conclusively proved and established by a certificate signed by
the Chairman of the Board, the President, any Vice President,
the Treasurer, any Assistant Treasurer, the Secretary or any
Assistant Secretary of the Company and delivered to the Rights
Agent; and such certificate shall be full authorization to the
Rights Agent for any action taken or suffered in good faith by
it under the provisions of this Agreement in reliance upon such
certificate.
(g) The Rights Agent shall be liable hereunder
only for its own gross negligence, bad faith or willful
misconduct.
(h) The Rights Agent shall not be liable for or
by reason of any of the statements of fact or recitals contained
in this Agreement or in the Rights Certificates 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.
(i) The Rights Agent shall not be under any
responsibility in respect of the validity of this Agreement or
the execution and delivery hereof (except the due execution
hereof by the Rights Agent) or in respect of the validity or
execution of any Rights Certificate (except its countersignature
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,
Section 13 or Section 24 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 actual notice of any such adjustment);
nor shall it by any act hereunder be deemed to make any
representation or warranty as to the authorization or
reservation of any shares of Common Stock or Preferred Stock to
be issued pursuant to this Agreement or any Rights Certificate
or as to whether any shares of Common Stock or Preferred Stock
will, when so issued, be validly authorized and issued, fully
paid and nonassessable.
(j) 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.
(k) The Rights Agent is hereby authorized and
directed to accept instructions with respect to the performance
of its duties hereunder from the Chairman of the Board, the
President, any Vice President, the Secretary, any Assistant
Secretary, the Treasurer or any Assistant Treasurer of the
Company, and to apply to such officers for advice or
instructions in connection with its duties, and it shall not be
liable for any action taken or suffered to be taken by it in
good faith in accordance with instructions of any such officer.
(l) The Rights Agent and any stockholder,
director, officer or employee of the Rights Agent may buy, sell
or deal in any of the Rights or other securities of the Company
or become pecuniarily interested in any transaction in which the
Company may be interested, or contract with or lend money to the
Company or otherwise act as fully and freely as though it were
not Rights Agent under this Agreement. Nothing herein shall
preclude the Rights Agent from acting in any other capacity for
the Company or for any other legal entity.
(m) 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.
(n) No provision of this Agreement shall require
the Rights Agent to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its
duties hereunder or in the exercise of its rights if there shall
be reasonable grounds for believing that repayment of such funds
or adequate indemnification against such risk or liability is
not reasonably assured to it.
(o) If, with respect to any Rights Certificate
surrendered to the Rights Agent for exercise or transfer, the
certificate attached to the form of assignment or form of
election to purchase, as the case may be, has either not been
completed or indicates an affirmative response to clause 1
and/or 2 thereof, the Rights Agent shall not take any further
action with respect to such requested exercise or transfer
without first consulting with the Company.
Section 20. 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, Class B Common Stock and Preferred Stock, by
registered or certified mail, and, if such resignation occurs
after the Distribution Date, to the registered holders of the
Rights Certificates 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, Class B Common Stock and Preferred Stock, by
registered or certified mail, and, if such removal occurs after
the Distribution Date, to the holders of the Rights Certificates
by first-class mail. If the Rights Agent shall resign or be
removed or shall otherwise become incapable of acting, the
Company shall appoint a successor to the Rights Agent. If the
Company shall fail to make such appointment within a period of
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 legal business
entity organized and doing business under the laws of the United
States or of the State of New York or of any other state of the
United States, in good standing, having an office in the State
of New York, which is authorized under such laws to exercise
corporate trust, stock transfer or shareholder services powers
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 legal business entity 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, Class B Common Stock and the Preferred Stock, and,
if such appointment occurs after the Distribution Date, mail a
notice thereof in writing to the registered holders of the
Rights Certificates. Failure to give any notice provided for in
this Section 21, however, or any defect therein, shall not
affect the legality or validity of the resignation or removal of
the Rights Agent or the appointment of the successor Rights
Agent, as the case may be.
Section 21. 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 the Board of Directors to reflect any
adjustment or change in the Purchase Price and the number or
kind or class of shares or other securities or property
purchasable under the 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
or Class B Common Stock following the Distribution Date and
prior to the redemption or expiration of the Rights, the Company
(a) shall, with respect to shares of Common Stock or Class B
Common Stock so issued or sold pursuant to the exercise of stock
options or under any employee plan or arrangement, granted or
awarded as of the Distribution Date, or upon the exercise,
conversion or exchange of securities hereinafter issued by the
Company, and (b) may, in any other case, if deemed necessary or
appropriate by the Board of Directors of the Company, issue
Rights Certificates representing the appropriate number of
Rights in connection with such issuance or sale; provided,
however, that (i) no such Rights Certificate shall be issued if,
and to the extent that, the Company shall be advised by counsel
that such issuance would create a significant risk of material
adverse tax consequences to the Company or the Person to whom
such Rights Certificate would be issued, and (ii) no such Rights
Certificate shall be issued if, and to the extent that,
appropriate adjustment shall otherwise have been made in lieu of
the issuance thereof.
Section 22. Redemption and Termination.
(e) The Board of Directors of the Company may, at its
option, at any time prior to the earlier of (i) the close of
business on the tenth day following the Stock Acquisition Date
(or, if the Stock Acquisition Date shall have occurred prior to
the Record Date, the close of business on the tenth day
following the Record Date), or (ii) the Final Expiration Date,
redeem all but not less than all of the then outstanding Rights
at a redemption price of $.01 per Right, as such amount may be
appropriately adjusted to reflect any stock split, stock
dividend or similar transaction occurring after the date hereof
(such redemption price being hereinafter referred to as the
"Redemption Price"). Notwithstanding anything contained in this
Agreement to the contrary, the Rights shall not be exercisable
after the first occurrence of a Section 11(a)(ii) Event until
such time as the Company's right of redemption hereunder has
expired. The Company may, at its option, pay the Redemption
Price in cash, shares of Common Stock (based on the Current
Market Price, as defined in Section 11(d)(i) hereof, of the
Common Stock at the time of redemption) or any other form of
consideration deemed appropriate by the Board of Directors.
(f) Immediately upon the action of the Board of
Directors of the Company ordering the redemption of the Rights,
evidence of which shall have been filed with the Rights Agent
and without any further action and without any notice, the right
to exercise the Rights will terminate and the only right
thereafter of the holders of Rights shall be to receive the
Redemption Price for each Right so held. Promptly after the
action of the Board of Directors ordering the redemption of the
Rights, the Company shall give notice of such redemption to the
Rights Agent and the holders of the then outstanding Rights by
mailing such notice to all such holders at each holder's last
address as it appears upon the registry books of the Rights
Agent or, prior to the Distribution Date, on the registry books
of the transfer agent for the Common Stock and on the registry
books of the transfer agent for the Class B 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 method by which
the payment of the Redemption Price will be made.
Section 23. Exchange.
(e) The Board of Directors of the Company may,
at its option, at any time after any Person becomes an Acquiring
Person, exchange all or part of the then outstanding and
exercisable Rights (which shall not include Rights that have
become void pursuant to the provisions of Section 7(e) hereof)
for Common Stock at an exchange ratio of one share of Common
Stock per Right, appropriately adjusted to reflect any stock
split, stock dividend or similar transaction occurring after the
date hereof (such exchange ratio being hereinafter referred to
as the "Exchange Ratio"). Notwithstanding the foregoing, the
Board of Directors of the Company shall not be empowered to
effect such exchange at any time after any Person (other than
the Company, any Subsidiary of the Company, any employee benefit
plan of the Company or any such Subsidiary, any entity holding
Common Stock for or pursuant to the terms of any such plan or
any Wrigley Entity), together with all Affiliates and Associates
of such Person, becomes the Beneficial Owner of 50% or more of
the Common Stock then outstanding.
(f) Immediately upon the action of the Board of
Directors of the Company ordering the exchange of any Rights
pursuant to subsection (a) of this Section 24 and without any
further action and without any notice, the right to exercise
such Rights shall terminate and the only right thereafter of a
holder of such Rights shall be to receive that number of 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
promptly shall mail a notice of any such exchange to all of the
holders of such Rights at their last addresses as they appear
upon the registry books of the Rights Agent. Any notice which
is mailed in the manner herein provided shall be deemed given,
whether or not the holder receives the notice. Each such notice
of exchange will state the method by which the exchange of the
Common 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.
(g) In any exchange pursuant to this Section 24,
the Company, at its option, may substitute Preferred Stock (or
Equivalent Preferred Stock, as such term is defined in paragraph
(b) of Section 11 hereof) for Common Stock exchangeable for
Rights, at the initial rate of one one-thousandth of a share of
Preferred Stock (or Equivalent Preferred Stock) for each share
of Common Stock, as appropriately adjusted to reflect stock
splits, stock dividends and other similar transactions after the
date hereof.
(h) In the event that there shall not be
sufficient shares of Common Stock issued but not outstanding or
authorized but unissued to permit any exchange of Rights as
contemplated in accordance with this Section 24, the Company
shall take all such action as may be necessary to authorize
additional shares of Common Stock for issuance upon exchange of
the Rights.
(i) The Company shall not 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, there shall
be paid 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 subsection (e), 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 11(d)(i) hereof) for the
Trading Day immediately prior to the date of exchange pursuant
to this Section 24.
Section 24. Notice of Certain Events.
(e) In case the Company shall propose, at any
time after the Distribution Date, (i) to pay any dividend
payable in stock of any class to the holders of Preferred Stock
or to make any other distribution to the holders of Preferred
Stock (other than a regular quarterly cash dividend out of
earnings or retained earnings of the Company), or (ii) to offer
to the holders of Preferred Stock rights or warrants to
subscribe for or to purchase any additional shares of Preferred
Stock or shares of stock of any class or any other securities,
rights or options, or (iii) to effect any reclassification of
its Preferred Stock (other than a reclassification involving
only the subdivision of outstanding shares of Preferred Stock),
or (iv) to effect any consolidation or merger into or with any
other Person (other than a Subsidiary of the Company in a
transaction which complies with Section 11(o) hereof), or to
effect any sale or other transfer (or to permit one or more of
its Subsidiaries to effect any sale or other transfer), in one
transaction or a series of related transactions, of more than
50% of the assets, cash flow or earning power of the Company and
its Subsidiaries (taken as a whole) to any other Person or
Persons (other than the Company and/or any of its Subsidiaries
in one or more transactions each of which complies with Section
11(o) hereof), or (v) to effect the liquidation, dissolution or
winding up of the Company, then, in each such case, the Company
shall give to each holder of a 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, or the date on which such reclassification,
consolidation, merger, sale, transfer, liquidation, dissolution,
or winding up is to take place and the date of participation
therein by the holders of the shares of Preferred Stock, if any
such date is to be fixed, and such notice shall be so given in
the case of any action covered by clause (i) or (ii) above at
least twenty (20) days prior to the record date for determining
holders of the shares of Preferred Stock for purposes of such
action, and in the case of any such other action, at least
twenty (20) days prior to the date of the taking of such
proposed action or the date of participation therein by the
holders of the shares of Preferred Stock, whichever shall be the
earlier.
(f) In case any of the events set forth in
Section 11(a)(ii) hereof shall occur, then, in any such case,
(i) the Company shall as soon as practicable thereafter give to
each holder of a Rights Certificate, to the extent feasible and
in accordance with Section 26 hereof, a notice of the occurrence
of such event, which shall specify the event and the
consequences of the event to holders of Rights under Section
11(a)(ii) hereof, and (ii) all references in the preceding
paragraph to Preferred Stock shall be deemed thereafter to refer
to Common Stock and/or, if appropriate, other securities.
Section 25. Notices. Notices or demands authorized by
this Agreement to be given or made by the Rights Agent or by the
holder of any Rights Certificate to or on the Company shall be
sufficiently given or made if sent by first-class mail, postage
prepaid, addressed (until another address is filed in writing by
the Rights Agent with the Company) as follows:
Wm. Wrigley Jr. Company
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Corporate Secretary
Subject to the provisions of Section 21, any notice or demand
authorized by this Agreement to be given or made by the Company
or by the holder of any 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 by the Rights Agent with the Company) as follows:
EquiServe, L.P.
Xxx Xxxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Corporate Trust Department
Notices or demands authorized by this Agreement to be
given or made by the Company or the Rights Agent to the holder
of any Rights Certificate (or, if prior to the Distribution
Date, to the holder of certificates representing shares of
Common Stock or Class B Common Stock) shall be sufficiently
given or made if sent by first-class mail, postage prepaid,
addressed to such holder at the address of such holder as shown
on the registry books of the Company.
Section 26. Supplements and Amendments. Prior to the
Distribution Date, the Company and the Rights Agent shall, if
the Company so directs, supplement or amend any provision of
this Agreement without the approval of any holders of
certificates representing shares of Common Stock or Class B
Common Stock. From and after the Distribution Date, the Company
and the Rights Agent shall, if the Company so directs,
supplement or amend this Agreement without the approval of any
holders of Rights Certificates in order (i) to cure any
ambiguity, (ii) to correct or supplement any provision contained
herein which may be defective or inconsistent with any other
provisions herein, (iii) to shorten or lengthen any time period
hereunder or (iv) to change or supplement the provisions
hereunder in any manner which the Company may deem necessary or
desirable and which shall not adversely affect the interests of
the holders of Rights Certificates (other than an Acquiring
Person or an Affiliate or Associate of an Acquiring Person).
Upon the delivery of a certificate from an appropriate officer
of the Company which states that the proposed supplement or
amendment is in compliance with the terms of this Section 27,
the Rights Agent shall execute such supplement or amendment.
Notwithstanding anything herein to the contrary, this Agreement
may not be amended (other than pursuant to clauses (i) or (ii)
of the preceding sentence) at a time when the Rights are not
redeemable.
Section 27. Successors. All the covenants and provisions
of this Agreement by or for the benefit of the Company or the
Rights Agent shall bind and inure to the benefit of their
respective successors and assigns hereunder.
Section 28. Determinations and Actions by the Board of
Directors, etc. For all purposes of this Agreement, any
calculation of the number of shares of Common Stock or Class B
Common Stock or any other class of capital stock outstanding at
any particular time, including for purposes of determining the
particular percentage of such outstanding shares of Common Stock
or Class B Common Stock of which any Person is the Beneficial
Owner, shall be made in accordance with the last sentence of
Rule 13d-3(d)(1)(i) of the General Rules and Regulations under
the Exchange Act, except for purposes of determining the number
of outstanding shares of Common Stock, all shares of Common
Stock issuable upon conversion of the Class B Common Stock shall
be treated as outstanding. The Board of Directors of the
Company shall have the exclusive power and authority to
administer this Agreement and to exercise all rights and powers
specifically granted to the Board or to the Company, or as may
be necessary or advisable in the administration of this
Agreement, including, without limitation, the right and power to
(i) interpret the provisions of this Agreement, and (ii) make
all determinations deemed necessary or advisable for the
administration of this Agreement (including a determination to
redeem or not redeem the Rights or to amend the Agreement). All
such actions, calculations, interpretations and determinations
(including, for purposes of clause (y) below, all omissions with
respect to the foregoing) which are done or made by the Board in
good faith, shall (x) be final, conclusive and binding on the
Company, the Rights Agent, the holders of the Rights and all
other parties, and (y) not subject the Board, or any of the
directors on the Board to any liability to the holders of the
Rights.
Section 29. Benefits of this Agreement. Nothing in
this Agreement shall be construed to give to any Person other
than the Company, the Rights Agent and the registered holders of
the Rights Certificates (and, prior to the Distribution Date,
registered holders of the Common Stock and Class B 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
Distribution Date, registered holders of the Common Stock and
Class B Common Stock).
Section 30. Severability. If any term, provision,
covenant or restriction of this Agreement is held by a court of
competent jurisdiction or other authority to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants
and restrictions of this Agreement shall remain in full force
and effect and shall in no way be affected, impaired or
invalidated; provided, however, that notwithstanding anything in
this Agreement to the contrary, if any such term, provision,
covenant or restriction is held by such court or authority to be
invalid, void or unenforceable and the Board of Directors of the
Company determines in its good faith judgment that severing the
invalid language from this Agreement would adversely affect the
purpose or effect of this Agreement, the right of redemption set
forth in Section 23 hereof shall be reinstated and shall not
expire until the close of business on the tenth day following
the date of such determination by the Board of Directors.
Without limiting the foregoing, if any provision requiring a
specific group of directors to act is held to by any court of
competent jurisdiction or other authority to be invalid, void or
unenforceable, such determination shall then be made by the
Board of Directors of the Company in accordance with applicable
law and the Company's Restated Certificate of Incorporation, as
amended, and Bylaws.
Section 31. Governing Law. This Agreement, each
Right and each Rights Certificate issued hereunder shall be
deemed to be a contract made under the laws of the State of
Delaware and for all purposes shall be governed by and construed
in accordance with the laws of such State applicable to
contracts made and to be performed entirely within such State.
Section 32. Counterparts. This Agreement may be
executed in any number of counterparts and each of such
counterparts shall for all purposes be deemed to be an original,
and all such counterparts shall together constitute but one and
the same instrument.
Section 33. Descriptive Headings. Descriptive
headings of the several sections of this Agreement are inserted
for convenience only and shall not control or affect the meaning
or construction of any of the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed, all as of the day and year
first above written.
WM. WRIGLEY JR. COMPANY
By /s/Xxxxxx Xxxxxxxx
Name: Xxxxxx Xxxxxxxx
Title: Vice President, Secretary
and General Counsel
EQUISERVE, L.P.
By /s/Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Managing Director
Exhibit A
FORM OF
CERTIFICATE OF DESIGNATION, PREFERENCES AND
RIGHTS OF SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
of
WM. WRIGLEY JR. COMPANY
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
The undersigned officer of Wm. Wrigley Jr. Company, a
corporation organized and existing under the General Corporation
Law of the State of Delaware, in accordance with the provisions
of Section 103 thereof, DOES HEREBY CERTIFY:
That pursuant to the authority conferred upon the
Board of Directors by the Restated Certificate of Incorporation,
as amended, of the said Corporation, the said Board of Directors
on May 23, 2001, adopted the following resolution creating a
series of shares of Preferred Stock designated as Series A
Junior Participating Preferred Stock:
RESOLVED, that pursuant to the authority vested in the
Board of Directors of this Corporation in accordance with the
provisions of its Restated Certificate of Incorporation, as
amended, a series of Preferred Stock of the Corporation be and
it hereby is created, and that the designation and amount
thereof and the voting powers, preferences and relative,
participating, optional and other special rights of the shares
of such series, and the qualifications, limitations or
restrictions thereof are as follows:
Designation and Amount. The shares of such series shall be
designated as "Series A Junior Participating Preferred Stock"
and the number of shares constituting such series shall be one
million (1,000,000).
Dividends and Distributions.
(A) Subject to the prior and superior rights of the
holders of any shares of any series of Preferred Stock ranking
prior and superior to the shares of Series A Junior
Participating Preferred Stock with respect to dividends, the
holders of shares of Series A Junior Participating Preferred
Stock shall be entitled to receive, when, as and if declared by
the Board of Directors out of funds legally available for the
purpose, quarterly dividends payable in cash on the same date as
the Company pays quarterly dividends on the Common Stock (each
such date being referred to herein as a "Quarterly Dividend
Payment Date"), commencing on the first Quarterly Dividend
Payment Date after the first issuance of a share or fraction of
a share of Series A Junior Participating Preferred Stock, in an
amount per share (rounded to the nearest cent) equal to the
greater of (a) $10.00 or (b) subject to the provision for
adjustment hereinafter set forth, 1,000 times the aggregate per
share amount of all cash dividends, and 1,000 times the
aggregate per share amount (payable in kind) of all non-cash
dividends or other distributions other than a dividend payable
in shares of Common Stock or a subdivision of the outstanding
shares of Common Stock (by reclassification or otherwise),
declared on the Common Stock, no par value per share, of the
Corporation (the "Common Stock") since the immediately preceding
Quarterly Dividend Payment Date, or, with respect to the first
Quarterly Dividend Payment Date, since the first issuance of any
share or fraction of a share of Series A Junior Participating
Preferred Stock. In the event the Corporation shall at any time
after June 6, 2001 (the "Rights Declaration Date") (i) declare
any dividend on Common Stock payable in shares of Common Stock,
(ii) subdivide the outstanding Common Stock, or (iii) combine
the outstanding Common Stock into a smaller number of shares,
then in each such case the amount to which holders of shares of
Series A Junior Participating Preferred Stock were entitled
immediately prior to such event under clause (b) of the
preceding sentence shall be adjusted by multiplying such amount
by a fraction the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock
that were outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or
distribution on the Series A Junior Participating Preferred
Stock as provided in Paragraph (A) above immediately after it
declares a dividend or distribution on the Common Stock (other
than a dividend payable in shares of Common Stock); provided
that, in the event no dividend or distribution shall have been
declared on the Common Stock during the period between any
Quarterly Dividend Payment Date and the next subsequent
Quarterly Dividend Payment Date, a dividend of $10.00 per share
on the Series A Junior Participating Preferred Stock shall
nevertheless be payable on such subsequent Quarterly Dividend
Payment Date.
(C) Dividends shall begin to accrue and be cumulative
on outstanding shares of Series A Junior Participating Preferred
Stock from the Quarterly Dividend Payment Date next preceding
the date of issue of such shares of Series A Junior
Participating Preferred Stock, unless the date of issue of such
shares is prior to the record date for the first Quarterly
Dividend Payment Date, in which case dividends on such shares
shall begin to accrue from the date of issue of such shares, or
unless the date of issue is a Quarterly Dividend Payment Date or
is a date after the record date for the determination of holders
of shares of Series A Junior Participating Preferred Stock
entitled to receive a quarterly dividend and before such
Quarterly Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such
Quarterly Dividend Payment Date. Accrued but unpaid dividends
shall not bear interest. Dividends paid on the shares of Series
A Junior Participating Preferred Stock in an amount less than
the total amount of such dividends at the time accrued and
payable on such shares shall be allocated pro rata on a share-
by-share basis among all such shares at the time outstanding.
The Board of Directors may fix a record date for the
determination of holders of shares of Series A Junior
Participating Preferred Stock entitled to receive payment of a
dividend or distribution declared thereon, which record date
shall be no more than 30 days prior to the date fixed for the
payment thereof.
Voting Rights. The holders of shares of Series A Junior
Participating Preferred Stock shall have the following voting
rights:
(D) Subject to the provision for adjustment
hereinafter set forth, each share of Series A Junior
Participating Preferred Stock shall entitle the holder thereof
to 1,000 votes on all matters submitted to a vote of the
stockholders of the Corporation. In the event the Corporation
shall at any time after the Rights Declaration Date (i) declare
any dividend on Common Stock payable in shares of Common Stock,
(ii) subdivide the outstanding Common Stock, or (iii) combine
the outstanding Common Stock into a smaller number of shares,
then in each such case the number of votes per share to which
holders of shares of Series A Junior Participating Preferred
Stock were entitled immediately prior to such event shall be
adjusted by multiplying such number by a fraction the numerator
of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding
immediately prior to such event.
(E) Except as otherwise provided herein or by law,
the holders of shares of Series A Junior Participating Preferred
Stock and the holders of shares of Common Stock shall vote
together as one class on all matters submitted to a vote of
stockholders of the Corporation.
(C) (i) If at any time dividends on any Series A Junior
Participating Preferred Stock shall be in arrears in an amount
equal to six (6) quarterly dividends thereon, the occurrence of
such contingency shall xxxx the beginning of a period (herein
called a "default period") which shall extend until such time
when all accrued and unpaid dividends for all previous quarterly
dividend periods and for the current quarterly dividend period
on all shares of Series A Junior Participating Preferred Stock
then outstanding shall have been declared and paid or set apart
for payment. During each default period, all holders of
Preferred Stock (including holders of the Series A Junior
Participating Preferred Stock) with dividends in arrears in an
amount equal to six (6) quarterly dividends thereon, voting as a
class, irrespective of series, shall have the right to elect two
(2) directors.
(ii) During any default period, such voting right of
the holders of Series A Junior Participating Preferred Stock may
be exercised initially at a special meeting called pursuant to
subparagraph (iii) of this Section 3(C) or at any annual meeting
of stockholders, and thereafter at annual meetings of
stockholders, provided that neither such voting right nor the
right of the holders of any other series of Preferred Stock, if
any, to increase, in certain cases, the authorized number of
directors shall be exercised unless the holders of ten percent
(10%) in number of shares of Preferred Stock outstanding shall
be present in person or by proxy. The absence of a quorum of
the holders of Common Stock shall not affect the exercise by the
holders of Preferred Stock of such voting right. At any meeting
at which the holders of Preferred Stock shall exercise such
voting right initially during an existing default period, they
shall have the right, voting as a class, to elect directors to
fill such vacancies, if any, in the Board of Directors as may
then exist up to two (2) directors or, if such right is
exercised at an annual meeting, to elect two (2) directors. If
the number which may be so elected at any special meeting does
not amount to the required number, the holders of the Preferred
Stock shall have the right to make such increase in the number
of directors as shall be necessary to permit the election by
them of the required number. After the holders of the Preferred
Stock shall have exercised their right to elect directors in any
default period and during the continuance of such period, the
number of directors shall not be increased or decreased except
by vote of the holders of Preferred Stock as herein provided or
pursuant to the rights of any equity securities ranking senior
to or pari passu with the Series A Junior Participating
Preferred Stock.
(iii) Unless the holders of Preferred Stock shall,
during an existing default period, have previously exercised
their right to elect directors, the Board of Directors may
order, or any stockholder or stockholders owning in the
aggregate not less than ten percent (10%) of the total number of
shares of Preferred Stock outstanding, irrespective of series,
may request, the calling of a special meeting of the holders of
Preferred Stock, which meeting shall thereupon be called by the
President, a Vice-President or the Secretary of the Corporation.
Notice of such meeting and of any annual meeting at which
holders of Preferred Stock are entitled to vote pursuant to this
Paragraph (C)(iii) shall be given to each holder of record of
Preferred Stock by mailing a copy of such notice to him at his
last address as the same appears on the books of the
Corporation. Such meeting shall be called for a time not
earlier than 20 days and not later than 60 days after such order
or request or in default of the calling of such meeting within
60 days after such order or request, such meeting may be called
on similar notice by any stockholder or stockholders owning in
the aggregate not less than ten percent (10%) of the total
number of shares of Preferred Stock outstanding.
Notwithstanding the provisions of this Paragraph (C)(iii), no
such special meeting shall be called during the period within 60
days immediately preceding the date fixed for the next annual
meeting of the stockholders.
(iv) In any default period, the holders of Common
Stock, and other classes of stock of the Corporation if
applicable, shall continue to be entitled to elect the whole
number of directors until the holders of Preferred Stock shall
have exercised their right to elect two (2) directors voting as
a class, after the exercise of which right (x) the directors so
elected by the holders of Preferred Stock shall continue in
office until their successors shall have been elected by such
holders or until the expiration of the default period, and (y)
any vacancy in the Board of Directors may (except as provided in
Paragraph (C)(ii) of this Section 3) be filled by vote of a
majority of the remaining directors theretofore elected by the
holders of the class of stock which elected the director whose
office shall have become vacant. References in this Paragraph
(C) to directors elected by the holders of a particular class of
stock shall include directors elected by such directors to fill
vacancies as provided in clause (y) of the foregoing sentence.
(v) Immediately upon the expiration of a default
period, (x) the right of the holders of Preferred Stock as a
class to elect directors shall cease, (y) the term of any
directors elected by the holders of Preferred Stock as a class
shall terminate, and (z) the number of directors shall be such
number as may be provided for in the certificate of
incorporation or by-laws irrespective of any increase made
pursuant to the provisions of Paragraph (C)(ii) of this Section
3 (such number being subject, however, to change thereafter in
any manner provided by law or in the certificate of
incorporation or by-laws). Any vacancies in the Board of
Directors effected by the provisions of clauses (y) and (z) in
the preceding sentence may be filled by a majority of the
remaining directors.
(D) Except as set forth herein, holders of Series A Junior
Participating Preferred Stock shall have no special voting
rights and their consent shall not be required (except to the
extent they are entitled to vote with holders of Common Stock as
set forth herein) for taking any corporate action.
Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Junior Participating
Preferred Stock as provided in Section 2 are in arrears,
thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series A
Junior Participating Preferred Stock outstanding shall have been
paid in full, the Corporation shall not
(vi) declare or pay dividends on, make any other
distributions on, or redeem or purchase or otherwise acquire for
consideration any shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the
Series A Junior Participating Preferred Stock;
(vii) declare or pay dividends on or make any other
distributions on any shares of stock ranking on a parity (either
as to dividends or upon liquidation, dissolution or winding up)
with the Series A Junior Participating Preferred Stock, except
dividends paid ratably on the Series A Junior Participating
Preferred Stock and all such parity stock on which dividends are
payable or in arrears in proportion to the total amounts to
which the holders of all such shares are then entitled;
(viii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking on a parity (either as
to dividends or upon liquidation, dissolution or winding up)
with the Series A Junior Participating Preferred Stock, provided
that the Corporation may at any time redeem, purchase or
otherwise acquire shares of any such parity stock in exchange
for shares of any stock of the Corporation ranking junior
(either as to dividends or upon dissolution, liquidation or
winding up) to the Series A Junior Participating Preferred
Stock; or
(ix) purchase or otherwise acquire for consideration
any shares of Series A Junior Participating Preferred Stock, or
any shares of stock ranking on a parity with the Series A Junior
Participating Preferred Stock, except in accordance with a
purchase offer made in writing or by publication (as determined
by the Board of Directors) to all holders of such shares upon
such terms as the Board of Directors, after consideration of the
respective annual dividend rates and other relative rights and
preferences of the respective series and classes, shall
determine in good faith will result in fair and equitable
treatment among the respective series or classes.
(B) The Corporation shall not permit any
subsidiary of the Corporation to purchase or otherwise acquire
for consideration any shares of stock of the Corporation unless
the Corporation could, under Paragraph (A) of this Section 4,
purchase or otherwise acquire such shares at such time and in
such manner.
Reacquired Shares. Any shares of Series A Junior Participating
Preferred Stock purchased or otherwise acquired by the
Corporation in any manner whatsoever shall be retired and
cancelled promptly after the acquisition thereof. All such
shares shall upon their cancellation become authorized but
unissued shares of Preferred Stock and may be reissued as part
of a new series of Preferred Stock to be created by resolution
or resolutions of the Board of Directors, subject to the
conditions and restrictions on issuance set forth herein.
Liquidation, Dissolution or Winding Up. (A) Upon any
liquidation (voluntary or otherwise), dissolution or winding up
of the Corporation, no distribution shall be made to the holders
of shares of stock ranking junior (either as to dividends or
upon liquidation, dissolution or winding up) to the Series A
Junior Participating Preferred Stock unless, prior thereto, the
holders of shares of Series A Junior Participating Preferred
Stock shall have received an amount equal to $1,000 per share of
Series A Participating Preferred Stock, plus an amount equal to
accrued and unpaid dividends and distributions thereon, whether
or not declared, to the date of such payment (the "Series A
Liquidation Preference"). Following the payment of the full
amount of the Series A Liquidation Preference, no additional
distributions shall be made to the holders of shares of Series A
Junior Participating Preferred Stock unless, prior thereto, the
holders of shares of Common Stock shall have received an amount
per share (the "Common Adjustment") equal to the quotient
obtained by dividing (i) the Series A Liquidation Preference by
(ii) 1,000 (as appropriately adjusted as set forth in subpara-
graph (C) below to reflect such events as stock splits, stock
dividends and recapitalizations with respect to the Common
Stock) (such number in clause (ii), the "Adjustment Number").
Following the payment of the full amount of the Series A
Liquidation Preference and the Common Adjustment in respect of
all outstanding shares of Series A Junior Participating
Preferred Stock and Common Stock, respectively, holders of
Series A Junior Participating Preferred Stock and holders of
shares of Common Stock shall receive their ratable and
proportionate share of the remaining assets to be distributed in
the ratio of the Adjustment Number to 1 with respect to such
Preferred Stock and Common Stock, on a per share basis,
respectively.
(B) In the event, however, that there are not
sufficient assets available to permit payment in full of the
Series A Liquidation Preference and the liquidation preferences
of all other series of preferred stock, if any, which rank on a
parity with the Series A Junior Participating Preferred Stock,
then such remaining assets shall be distributed ratably to the
holders of such parity shares in proportion to their respective
liquidation preferences. In the event, however, that there are
not sufficient assets available to permit payment in full of the
Common Adjustment, then such remaining assets shall be
distributed ratably to the holders of Common Stock.
(C) In the event the Corporation shall at any
time after the Rights Declaration Date (i) declare any dividend
on Common Stock payable in shares of Common Stock, (ii)
subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, then
in each such case the Adjustment Number in effect immediately
prior to such event shall be adjusted by multiplying such
Adjustment Number by a fraction the numerator of which is the
number of shares of Common Stock outstanding immediately after
such event and the denominator of which is the number of shares
of Common Stock that were outstanding immediately prior to such
event.
Consolidation, Merger, etc. In case the Corporation shall enter
into any consolidation, merger, combination or other transaction
in which the shares of Common Stock are exchanged for or changed
into other stock or securities, cash and/or any other property,
then in any such case the shares of Series A Junior
Participating Preferred Stock shall at the same time be
similarly exchanged or changed in an amount per share (subject
to the provision for adjustment hereinafter set forth) equal to
1,000 times the aggregate amount of stock, securities, cash
and/or any other property (payable in kind), as the case may be,
into which or for which each share of Common Stock is changed or
exchanged. In the event the Corporation shall at any time after
the Rights Declaration Date (i) declare any dividend on Common
Stock payable in shares of Common Stock, (ii) subdivide the
outstanding Common Stock, or (iii) combine the outstanding
Common Stock into a smaller number of shares, then in each such
case the amount set forth in the preceding sentence with respect
to the exchange or change of shares of Series A Junior
Participating Preferred Stock shall be adjusted by multiplying
such amount by a fraction the numerator of which is the number
of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of
Common Stock that were outstanding immediately prior to such
event.
No Redemption. The shares of Series A Junior Participating
Preferred Stock shall not be redeemable.
Ranking. The Series A Junior Participating Preferred Stock
shall rank junior to all other series of the Corporation's
Preferred Stock as to the payment of dividends and the
distribution of assets, unless the terms of any such series
shall provide otherwise.
Amendment. At any time when any shares of Series A Junior
Participating Preferred Stock are outstanding, neither the
Restated Certificate of Incorporation, as amended, of the
Corporation nor this Certificate of Designation shall be amended
in any manner which would materially alter or change the powers,
preferences or special rights of the Series A Junior
Participating Preferred Stock so as to affect them adversely
without the affirmative vote of the holders of a majority or
more of the outstanding shares of Series A Junior Participating
Preferred Stock, voting separately as a class.
Fractional Shares. Series A Junior Participating Preferred
Stock may be issued in fractions of a share which shall entitle
the holder, in proportion to such holder's fractional shares, to
exercise voting rights, receive dividends, participate in
distributions and to have the benefit of all other rights of
holders of Series A Junior Participating Preferred Stock.
IN WITNESS WHEREOF, the undersigned officer has
executed and subscribed this Certificate and does affirm the
foregoing as true under the penalties of perjury this 1st day of
June, 2001.
Attest:
Secretary
Exhibit B
[Form of Rights Certificate]
Certificate No. R- ________ Rights
NOT EXERCISABLE AFTER June 6, 2011 OR EARLIER IF REDEEMED BY THE
COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF
THE COMPANY, AT $.01 PER RIGHT ON THE TERMS SET FORTH IN THE
RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS
BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS SUCH TERM IS
DEFINED IN THE RIGHTS AGREEMENT) AND ANY SUBSEQUENT HOLDER OF
SUCH RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS REPRESENTED
BY THIS 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.](A)
Rights Certificate
WM. WRIGLEY JR. COMPANY
This certifies that (fill in blank), or registered
assigns, is the registered owner of the number of Rights set
forth above, each of which entitles the owner thereof, subject
to the terms, provisions and conditions of the Rights Agreement,
dated as of June 1, 2001 (the "Rights Agreement"), between Wm.
Wrigley Jr. Company, a Delaware corporation (the "Company"), and
EquiServe, L.P., a limited partnership (the "Rights Agent"), to
(A) The portion of the legend in brackets shall be inserted
only if applicable and shall replace the preceding sentence.
purchase from the Company at any time prior to 5:00 P.M. (New
York City time) on June 6, 2011 (unless such date is extended
prior thereto by the Board of Directors) at the office or
offices of the Rights Agent designated for such purpose, or its
successors as Rights Agent, one one-thousandth of a fully paid,
non-assessable share of Series A Junior Participating Preferred
Stock (the "Preferred Stock") of the Company, at a purchase
price of $250.00 per one one-thousandth of a share (the
"Purchase Price"), upon presentation and surrender of this
Rights Certificate with the Form of Election to Purchase and
related Certificate duly executed. The 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 June 6, 2001, based on the Preferred
Stock as constituted at such date. The Company reserves the
right to require prior to the occurrence of a Triggering Event
(as such term is defined in the Rights Agreement) that a number
of Rights be exercised so that only whole shares of Preferred
Stock will be issued.
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 Rights Certificate are beneficially owned by
(i) an Acquiring Person or an Affiliate or Associate of any such
Acquiring Person (as such terms are defined in the Rights
Agreement), (ii) a transferee of any such Acquiring Person,
Associate or Affiliate, or (iii) under certain circumstances
specified in the Rights Agreement, a transferee of a person who,
after such transfer, became an Acquiring Person, or an Affiliate
or Associate of an Acquiring Person, such Rights shall become
null and void and no holder hereof shall have any right with
respect to such Rights from and after the occurrence of such
Section 11(a)(ii) Event.
As provided in the Rights Agreement, the Purchase
Price and the number and kind of shares of Preferred Stock or
other securities, which may be purchased upon the exercise of
the Rights evidenced by this Rights Certificate are subject to
modification and adjustment upon the happening of certain
events, including Triggering Events.
This Rights Certificate is subject to all of the
terms, provisions and conditions of the Rights Agreement, which
terms, provisions and conditions are hereby incorporated herein
by reference and made a part hereof and to which Rights
Agreement reference is hereby made for a full description of the
rights, limitations of rights, obligations, duties and
immunities hereunder of the Rights Agent, the Company and the
holders of the Rights Certificates, which limitations of rights
include the temporary suspension of the exercisability of such
Rights under the specific circumstances set forth in the Rights
Agreement. Copies of the Rights Agreement are on file at the
above-mentioned office of the Rights Agent and are also
available upon written request to the Rights Agent.
This Rights Certificate, with or without other Rights
Certificates, upon surrender at the 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 one one-thousandths of a
share of Preferred Stock as the Rights evidenced by the Rights
Certificate or Rights Certificates surrendered shall have
entitled such holder to purchase. If this Rights Certificate
shall be exercised in part, the holder shall be entitled to
receive upon surrender hereof another Rights Certificate or
Rights Certificates for the number of whole Rights not
exercised.
Subject to the provisions of the Rights Agreement, the
Rights evidenced by this Certificate may be redeemed by the
Company at its option at a redemption price of $.01 per Right at
any time prior to the earlier of the close of business on (i)
the tenth day following the Stock Acquisition Date (as such time
period may be extended pursuant to the Rights Agreement), and
(ii) the Final Expiration Date. In addition, under certain
circumstances following the Stock Acquisition Date, the Rights
may be exchanged, in whole or in part, for shares of the Common
Stock, or shares of preferred stock of the Company having
essentially the same value or economic rights as such shares.
Immediately upon the action of the Board of Directors of the
Company authorizing any such exchange, and without any further
action or any notice, the Rights (other than Rights which are
not subject to such exchange) will terminate and the Rights will
only enable holders to receive the shares issuable upon such
exchange.
No fractional shares of Preferred Stock will be issued
upon the exercise of any Right or Rights evidenced hereby (other
than fractions which are integral multiples of one one-
thousandth of a share of Preferred Stock, which may, at the
election of the Company, be evidenced by depositary receipts),
but in lieu thereof a cash payment will be made, as provided in
the Rights Agreement.
No holder of this Rights Certificate shall be entitled
to vote or receive dividends or be deemed for any purpose the
holder of shares of Preferred Stock or of any other securities
of the Company which may at any time be issuable on the exercise
hereof, nor shall anything contained in the Rights Agreement or
herein be construed to confer upon the holder hereof, as such,
any of the rights of a stockholder of the Company or any right
to vote for the election of directors or upon any matter
submitted to stockholders at any meeting thereof, or to give
consent to or withhold consent from any corporate action, or, to
receive notice of meetings or other actions affecting
stockholders (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 (fill in blank).
WM. WRIGLEY JR. COMPANY
By (signature line)
Title:
Countersigned:
EQUISERVE, L.P.
By (signature line)
Authorized Signature
[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Rights Certificate.)
FOR VALUE RECEIVED (fill in blank)
hereby sells, assigns and transfers unto (fill in blank)
(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 (fill in blank) Attorney, to transfer the within Rights
Certificate on the books of the within named Company, with full
power of substitution.
Dated: (fill in blank)
Signature
Signature Guaranteed: (fill in blank)
Certificate
The undersigned hereby certifies by checking the
appropriate boxes that:
(2) this Rights Certificate (is) (is not) being
sold, assigned and transferred by or on behalf of a Person who
is or was an Acquiring Person or an Affiliate or Associate of
any such Acquiring Person (as such terms are defined pursuant to
the Rights Agreement);
(3) 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 or an Affiliate or
Associate of an Acquiring Person.
Dated: (fill in blank) (Signature Line)
Signature
Signature Guaranteed: (fill in blank)
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.
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to
exercise Rights represented by the Rights
Certificate.)
To: WM. WRIGLEY JR. COMPANY:
The undersigned hereby irrevocably elects to exercise
(fill in blank) Rights represented by this Rights Certificate to
purchase the shares of Preferred Stock issuable upon the
exercise of the Rights (or such other securities of the Company
or of any other person which may be issuable upon the exercise
of the Rights) and requests that certificates for such shares be
issued in the name of and delivered to:
Please insert social security
or other identifying number
(Please print name and address)
If such number of Rights shall not be all the Rights
evidenced by this Rights Certificate, a new Rights Certificate
for the balance of such Rights shall be registered in the name
of and delivered to:
Please insert social security
or other identifying number
(Please print name and address)
Dated: (fill in blank)
Signature
Signature Guaranteed: (fill in blank)
Certificate
The undersigned hereby certifies by checking the
appropriate boxes that:
(1) the Rights evidenced by this Rights
Certificate (are) (are not) being exercised by or on behalf of a
Person who is or was an Acquiring Person or an Affiliate or
Associate of any such Acquiring Person (as such terms are
defined 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 became an Acquiring Person or an Affiliate or
Associate of an Acquiring Person.
Dated: (fill in blank) (Signature Line)
Signature
Signature Guaranteed: (fill in blank)
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.
Exhibit C
SUMMARY OF RIGHTS TO PURCHASE
PREFERRED STOCK
On May 23, 2001, the Board of Directors of Wm. Wrigley
Jr. Company (the "Company") declared a dividend distribution of
one Right for each outstanding share of Common Stock and Class B
Common Stock to stockholders of record at the close of business
on June 6, 2001 (the "Record Date"). Each Right entitles the
registered holder to purchase from the Company a unit consisting
of one one-thousandth of a share (a "Unit") of Series A Junior
Participating Preferred Stock, no par value per share (the
"Series A Preferred Stock") at a Purchase Price of $250.00 per
Unit, subject to adjustment. The description and terms of the
Rights are set forth in a Rights Agreement (the "Rights
Agreement") between the Company and EquiServe, L.P., as Rights
Agent.
Initially, the Rights will be attached to all Common
Stock and Class B Common Stock certificates representing shares
then outstanding, and no separate Rights Certificates will be
distributed. Subject to certain exceptions specified in the
Rights Agreement, the Rights will separate from the Common Stock
and Class B Common Stock and a "Distribution Date" will occur
upon the earlier of (i) 10 days following a public announcement
that a person or group of affiliated or associated persons,
other than the Company, any subsidiary of the Company, any
employee benefit plan of the Company, any subsidiary of the
Company, any person or group who has inadvertently become the
beneficial owner of 15% or more of the outstanding shares of
Common Stock due to the repurchase of shares of Common Stock or
Class B Common Stock, or Xx. Xxxxxxx Xxxxxxx, Xx. and certain of
his related entities (an "Acquiring Person"), has acquired
beneficial ownership of 15% or more of the outstanding shares of
Common Stock (the "Stock Acquisition Date"), or (ii) 10 business
days (or such later date as the Board shall determine) following
the commencement of a tender offer or exchange offer that would
result in a person or group becoming an Acquiring Person. Until
the Distribution Date, (i) the Rights will be evidenced by the
Common Stock and Class B Common Stock certificates and will be
transferred with and only with such Common Stock and Class B
Common Stock certificates, (ii) new Common Stock and Class B
Common Stock certificates issued after the Record Date will
contain a notation incorporating the Rights Agreement by
reference and (iii) the surrender for transfer of any
certificates for Common Stock or Class B Common Stock
outstanding will also constitute the transfer of the Rights
associated with the Common Stock or Class B Common Stock
represented by such certificate. Pursuant to the Rights
Agreement, the Company reserves the right to require prior to
the occurrence of a Triggering Event (as defined below) that,
upon any exercise of Rights, a number of Rights be exercised so
that only whole shares of Series A Preferred Stock will be
issued.
The Rights are not exercisable until the Distribution
Date and will expire at 5:00 P.M. (New York City time) on June
6, 2011, unless such date is extended or the Rights are earlier
redeemed or exchanged by the Company as described below.
As soon as practicable after the Distribution Date,
Rights Certificates will be mailed to holders of record of the
Common Stock and Class B Common Stock as of the close of
business on the Distribution Date and, thereafter, the separate
Rights Certificates alone will represent the Rights. Except as
otherwise determined by the Board of Directors, only shares of
Common Stock and Class B Common Stock issued prior to the
Distribution Date will be issued with Rights.
In the event that a Person becomes an Acquiring
Person, except pursuant to an offer for all outstanding shares
of Common Stock which the independent directors determine to be
fair and not inadequate and to otherwise be in the best
interests of the Company and its stockholders, after receiving
advice from one or more investment banking firms (a "Qualified
Offer"), each holder of a Right will thereafter have the right
to receive, upon exercise, Common Stock (or, in certain
circumstances, cash, property or other securities of the
Company) having a value equal to two times the exercise price of
the Right. Notwithstanding any of the foregoing, following the
occurrence of the event 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 event set forth
above until such time as the Rights are no longer redeemable by
the Company as set forth below.
For example, at an exercise price of $250.00 per
Right, each Right not owned by an Acquiring Person (or by
certain related parties) following an event set forth in the
preceding paragraph would entitle its holder to purchase $500.00
worth of Common Stock (or other consideration, as noted above)
for $250.00. Assuming that the Common Stock had a per share
value of $50.00 at such time, the holder of each valid Right
would be entitled to purchase 10 shares of Common Stock for
$250.00.
In the event that, at any time following the Stock
Acquisition Date, (i) the Company engages in a merger or other
business combination transaction in which the Company is not the
surviving corporation (other than with an entity which acquired
the shares pursuant to a Qualified Offer), (ii) the Company
engages in a merger or other business combination transaction in
which the Company is the surviving corporation and the Common
Stock of the Company is changed or exchanged, or (iii) 50% or
more of the Company's assets, cash flow or earning power is sold
or transferred, each holder of a Right (except Rights which have
previously been voided as set forth above) shall thereafter have
the right to receive, upon exercise, common stock of the
acquiring company having a value equal to two times the exercise
price of the Right. The events set forth in this paragraph and
in the second preceding paragraph are referred to as the
"Triggering Events."
At any time after a person becomes an Acquiring Person
and prior to the acquisition by such person or group of fifty
percent (50%) or more of the outstanding Common Stock, the Board
may exchange the Rights (other than Rights owned by such person
or group which have become void), in whole or in part, at an
exchange ratio of one share of Common Stock, or one
one-thousandth of a share of Series A Preferred Stock (or of a
share of a class or series of the Company's preferred stock
having equivalent rights, preferences and privileges), per Right
(subject to adjustment).
The Purchase Price payable, and the number of Units of
Series A Preferred Stock or other securities or property
issuable, upon exercise of the Rights are subject to adjustment
from time to time to prevent dilution (i) in the event of a
stock dividend on, or a subdivision, combination or
reclassification of, the Series A Preferred Stock, (ii) if
holders of the Series A Preferred Stock are granted certain
rights or warrants to subscribe for Series A Preferred Stock or
convertible securities at less than the current market price of
the Series A Preferred Stock, or (iii) upon the distribution to
holders of the Series A Preferred Stock of evidences of
indebtedness or assets (excluding regular quarterly cash
dividends) or of subscription rights or warrants (other than
those referred to above).
With certain exceptions, no adjustment in the Purchase
Price will be required until cumulative adjustments amount to at
least 1% of the Purchase Price. No fractional Units will be
issued and, in lieu thereof, an adjustment in cash will be made
based on the market price of the Series A Preferred Stock on the
last trading date prior to the date of exercise.
At any time until ten days following the Stock
Acquisition Date, the Company may redeem the Rights in whole,
but not in part, at a price of $.01 per Right (payable in cash,
Common Stock or other consideration deemed appropriate by the
Board of Directors). 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 will be to
receive the $.01 redemption price.
Until a Right is exercised, the holder thereof, as
such, will have no rights as a stockholder 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 stockholders or to the Company, stockholders 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 or in the event of the redemption of the
Rights as set forth above.
Any of the provisions of the Rights Agreement may be
amended by the Board of Directors of the Company prior to the
Distribution Date. After the Distribution Date, 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. The
foregoing notwithstanding, no amendment may be made at such time
as the Rights are not redeemable.
A copy of the Rights Agreement has been filed with the
Securities and Exchange Commission as an Exhibit on Form 8-K
dated June 4, 2001. A copy of the Rights Agreement is available
free of charge from the Rights Agent. This summary description
of the Rights does not purport to be complete and is qualified
in its entirety by reference to the Rights Agreement, which is
incorporated herein by reference.
