EXHIBIT 4
________________________________________________________________________________
AMENDED AND RESTATED
RIGHTS AGREEMENT
DATED AS OF DECEMBER [XX], 1995
BETWEEN
THE PITTSTON COMPANY
AND
CHEMICAL BANK,
AS RIGHTS AGENT
________________________________________________________________________________
TABLE OF CONTENTS
PAGE
----
SECTION 1. Certain Definitions......................................................................... 1
SECTION 2. Appointment of Rights Agent................................................................. 6
SECTION 3. Issue of Right Certificates................................................................. 6
SECTION 4. Forms of Right Certificates................................................................. 7
SECTION 5. Execution, Countersignature and Registration................................................ 8
SECTION 6. Transfer, Split-up, Combination and Exchange of Right Certificates; Mutilated, Destroyed,
Lost or Stolen Right Certificates......................................................... 8
SECTION 7. Exercise of Rights; Expiration Date of Rights; Restriction on Transfer of Rights............ 8
SECTION 8. Cancelation and Destruction of Right Certificates........................................... 9
SECTION 9. Reservation and Availability of Preferred Shares............................................ 10
SECTION 10. Preferred Shares Record Date................................................................ 10
SECTION 11. Adjustment of Number and Kind of Shares and the Purchase Price.............................. 10
SECTION 12. Certificate of Adjustment................................................................... 15
SECTION 13. Consolidation, Merger, Share Exchange or Sale or Transfer of Major Part of Assets........... 15
SECTION 14. Additional Covenants........................................................................ 17
SECTION 15. Fractional Rights and Fractional Shares..................................................... 17
SECTION 16. Rights of Action............................................................................ 18
SECTION 17. Transfer and Ownership of Rights and Right Certificate...................................... 18
SECTION 18. Right Certificate Holder Not Deemed a Shareholder........................................... 18
SECTION 19. Concerning the Rights Agent................................................................. 18
SECTION 20. Merger or Consolidation or Change of Rights Agent........................................... 19
SECTION 21. Duties of Rights Agent...................................................................... 19
SECTION 22. Change of Rights Agent...................................................................... 20
SECTION 23. Issuance of New Right Certificates.......................................................... 21
SECTION 24. Redemption and Termination.................................................................. 21
SECTION 25. Notice of Certain Events.................................................................... 22
SECTION 26. Notices..................................................................................... 22
SECTION 27. Supplements and Amendments.................................................................. 22
SECTION 28. Successors.................................................................................. 23
SECTION 29. Benefits of This Rights Agreement; Determinations and Actions by the Board of Directors,
etc....................................................................................... 23
SECTION 30. Severability................................................................................ 23
SECTION 31. Governing Law............................................................................... 23
SECTION 32. Counterparts................................................................................ 23
SECTION 33. Descriptive Headings........................................................................ 24
Exhibits
Exhibit A Articles of Amendment
Exhibit B-1 Form of Right Certificate for Brink's Rights
Exhibit B-2 Form of Right Certificate for Minerals Rights
Exhibit B-3 Form of Right Certificate for Burlington Rights
AMENDED AND RESTATED RIGHTS AGREEMENT
DATED
AS OF DECEMBER [XX], 1995,
BETWEEN
THE PITTSTON COMPANY,
A VIRGINIA CORPORATION (THE 'COMPANY'),
AND
CHEMICAL BANK,
A NEW YORK BANKING CORPORATION, AS RIGHTS AGENT (THE 'RIGHTS AGENT').
On September 11, 1987 (the 'Rights Dividend Declaration Date'), the Board
of Directors of the Company adopted a shareholder rights plan governed by the
terms of a rights agreement (as amended as of December 12, 1988, the 'Original
Agreement') and distributed one right (a 'Common Right') for each share of
common stock, par value $1.00 per share, of the Company (the 'Common Stock')
outstanding at the close of business on September 25, 1987 (the 'Record Date'),
and authorized the issuance of one Common Right for each share of Common Stock
issued between the Record Date and the date hereof.
On May 7, 1993, the Board of Directors of the Company adopted amendments to
the Original Agreement (as amended, the 'Amended Agreement') and, contingent
upon and simultaneously with the distribution of Minerals Stock (as defined
herein) to holders of the Common Stock on the close of business on July 26,
1993, pursuant to such amendments (i) authorized and declared a dividend
distribution of one Pittston Minerals Group Right (a 'Minerals Right') for each
share of Minerals Stock and (ii) redesignated each Common Right as a Pittston
Services Group Right (a 'Services Right').
On December [yy], 1995, the Board of Directors of the Company adopted
amendments to the Amended Agreement (as amended, the 'Rights Agreement') and
contingent upon and simultaneously with (i) the redesignation of Pittston
Services Group Common Stock, par value $1.00 per share, of the Company
('Services Stock') as Brink's Stock (as defined herein) and (ii) the
distribution of Burlington Stock (as defined herein) to holders of Services
Stock on the close of business on December [xx], 1995 (the 'Effective Date'),
redesignated each Services Right as a Pittston Brink's Group Right (a 'Brink's
Right') and authorized and declared a distribution of one Pittston Burlington
Group Right (a 'Burlington Right') for each share of Burlington Stock.
Each Brink's Right, Minerals Right and Burlington Right initially
represents the right to purchase one one-thousandth (1/1000th) of a Series A
Preferred Share (as defined herein), one one-thousandth (1/1000th) of a Series B
Preferred Share (as defined herein), and one one-thousandth (1/1000th) of a
Series D Preferred Share (as defined herein), respectively, each such Preferred
Share having the powers, rights and preferences set forth in the form of
Articles of Amendment (as defined herein) attached hereto as Exhibit A, upon the
terms and subject to the conditions hereinafter set forth.
Accordingly, in consideration of the premises and the mutual agreements
herein set forth, the parties hereby agree as follows:
SECTION 1. Certain Definitions. For purposes of this Rights 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 Common Shares representing 20% or more of the total Voting Rights
of all the Common Shares then outstanding, but shall not include any
Subsidiary of the Company, any employee benefit plan of the Company or of
any of its Subsidiaries or any Person holding Common Shares for or pursuant
to the terms of any such employee benefit plan.
(b) 'Affiliate' and 'Associate', when used with reference to any
Person, shall have the respective meanings ascribed to such terms in Rule
12b-2 of the General Rules and Regulations under the Securities Exchange
Act of 1934, as in effect on the date of this Rights Agreement.
(c) 'Affiliate Merger' shall have the meaning set forth in clause (i)
of Section 11(e) of this Rights Agreement.
(d) 'Articles of Amendment' shall mean the Articles of Amendment to
the Restated Articles of Incorporation of the Company setting forth the
powers, preferences, rights, qualifications, limitations and restrictions
of the Series A Preferred Shares, the Series B Preferred Shares and the
Series D Preferred Shares of the Company, a copy of which is attached to
this Rights Agreement as Exhibit A.
(e) A Person shall be deemed the 'Beneficial Owner' of, and shall be
deemed to 'beneficially own', any securities:
(i) which such Person or any of such Person's Affiliates or
Associates beneficially owns, directly or indirectly;
(ii) which such Person or any of such Person's Affiliates or
Associates has (A) the right to acquire (whether such right is
exercisable immediately or only after the passage of time) pursuant to
any agreement, arrangement or understanding (written or oral), or upon
the exercise of conversion rights, exchange rights, rights (other than
Rights issuable under this Rights Agreement), warrants or options, or
otherwise; provided, however, that a Person shall not be deemed the
Beneficial Owner of, or to beneficially own, securities tendered
pursuant to a tender or exchange offer made by or on behalf of such
Person or any of such Person's Affiliates or Associates until such
tendered securities are accepted for purchase or exchange thereunder; or
(B) the right to vote pursuant to any agreement, arrangement or
understanding (written or oral); provided, however, that a Person shall
not be deemed the Beneficial Owner of, or to beneficially own, any
security if the agreement, arrangement or understanding (written or
oral) to vote such security (1) arises solely from a revocable proxy
given to such Person in response to a public proxy or consent
solicitation made pursuant to, and in accordance with, the applicable
rules and regulations under the Exchange Act and (2) is not also then
reportable on Schedule 13D under the Exchange Act (or any comparable or
successor report); or
(iii) which are beneficially owned, directly or indirectly, by any
other Person with which such Person or any of such Person's Affiliates
or Associates has any agreement, arrangement or understanding (written
or oral), for the purpose of acquiring, holding, voting (except pursuant
to a revocable proxy as described in clause (B) of subparagraph (ii) of
this paragraph (d)) or disposing of any securities of the Company;
provided, however, that, notwithstanding any provision of this Section
1(e), any Person engaged in business as an underwriter of securities who
acquires any securities of the Company through such Person's
participation in good faith in a firm commitment underwriting registered
under the Securities Act shall not be deemed the 'Beneficial Owner' of,
or to 'beneficially own', such securities until the expiration of 40
days after the date of acquisition.
(f) 'Book Value' when used with reference to Common Shares issued by
any Person shall mean the amount of equity of such Person applicable to
each Common Share, determined (i) in accordance with generally accepted
accounting principles in effect on the date as of which such Book Value is
to be determined, (ii) using all the consolidated assets and all the
consolidated liabilities of such Person on the date as of which such Book
Value is to be determined, except that no value shall be included in such
assets for goodwill arising from consummation of a Business Combination,
and (iii) after giving effect to (A) the exercise of all rights, options
and warrants to purchase such Common Shares (other than the Rights), and
the conversion of all securities convertible into such Common Shares, at an
exercise or conversion price, per Common Share, which is less than such
Book Value before giving effect to such exercise or conversion, (B) all
dividends and other distributions on the capital stock of such Person
declared prior to the date as of which such Book Value is to be determined
and to be paid or made after such date, and (C) any other agreement,
arrangement or understanding (written or oral), or transaction or other
action prior to the date as of which such Book Value is to be determined
which would have the effect of thereafter reducing such Book Value.
(g) 'Brink's Right' shall have the meaning set forth in the third
introductory paragraph of this Rights Agreement.
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(h) 'Brink's Stock' shall mean the Pittston Brink's Group Common
Stock, par value $1.00 per share, of the Company.
(i) 'Burlington Right' shall have the meaning set forth in the third
introductory paragraph of this Rights Agreement.
(j) 'Burlington Stock' shall mean the Pittston Burlington Group Common
Stock, par value $1.00 per share, of the Company.
(k) 'Business Combination' shall have the meaning set forth in Section
13(a) of this Rights Agreement.
(l) 'Business Day' shall mean each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions in the
Borough of Manhattan, The City of New York, are authorized or obligated by
law or executive order to close.
(m) 'Close of Business' on any given date shall mean 5 p.m., New York
City time, on such date; provided, however, that if such date is not a
Business Day, 'Close of Business' shall mean 5 p.m., New York City time, on
the next succeeding Business Day.
(n) 'Common Shares' when used with reference to the Company prior to a
Business Combination shall mean the shares of Brink's Stock, Minerals Stock
or Burlington Stock, as the context requires, of the Company or any other
shares of capital stock of the Company into which Brink's Stock, Minerals
Stock or Burlington Stock, as the case may be, shall be reclassified or
changed; provided, however, that 'Common Shares' shall mean shares of
Brink's Stock, Minerals Stock and Burlington Stock (or any other shares of
capital stock into which Brink's Stock, Minerals Stock or Burlington Stock,
as the case may be, shall be reclassified or changed) whenever a
determination of whether a Person shall have become the Beneficial Owner
of, or shall have made a tender or exchange offer for, Common Shares
representing a specified percentage of the total Voting Rights of all the
Common Shares then outstanding is required to be made herein. 'Common
Shares' when used with reference to any Person (other than the Company
prior to a Business Combination) shall mean shares of capital stock of such
Person (if such Person is a corporation) of any class or series, or units
of equity interests in such Person (if such Person is not a corporation) of
any class or series, the terms of which do not limit (as a fixed amount and
not merely in proportional terms) the amount of dividends or income payable
or distributable on such class or series or the amount of assets
distributable on such class or series upon any voluntary or involuntary
liquidation, dissolution or winding up of such Person and do not provide
that such class or series is subject to redemption at the option of such
Person, or any shares of capital stock or units of equity interests into
which the foregoing shall be reclassified or changed; provided, however,
that if at any time there shall be more than one such class or series of
capital stock or equity interests of such Person, 'Common Shares' of such
Person shall include all such classes and series substantially in the
proportion of the total number of shares or other units of each such class
or series outstanding at such time.
(o) 'Common Stock' shall have the meaning set forth in the first
introductory paragraph of this Rights Agreement.
(p) 'Company' shall have the meaning set forth in the heading of this
Rights Agreement; provided, however, that if there is a Business
Combination, 'Company' shall have the meaning set forth in Section 13(b) of
this Rights Agreement.
(q) The term 'control', with respect to any Person, shall mean the
power to direct the management and policies of such Person, directly or
indirectly, by or through stock ownership, agency or otherwise, or pursuant
to or in connection with an agreement, arrangement or understanding
(written or oral) with one or more other Persons by or through stock
ownership, agency or otherwise; and the terms 'controlling' and
'controlled' shall have meanings correlative to the foregoing.
(r) 'Disinterested Director' shall mean (i) any member of the Board of
Directors of the Company who was a member of the Board of Directors of the
Company prior to the Share Acquisition Date, and (ii) any member of the
Board of Directors of the Company who was
3
recommended for election by, or was elected to fill a vacancy and received
the affirmative vote of, a majority of the Disinterested Directors at the
time on the Board of Directors of the Company.
(s) 'Distribution Date' shall have the meaning set forth in Section
3(a) of this Rights Agreement.
(t) 'Effective Date' shall have the meaning set forth in the third
introductory paragraph of this Rights Agreement.
(u) 'Equivalent Shares' shall mean any Preferred Shares and any other
class or series of capital stock of the Company which is entitled to
participate in dividends and other distributions, including distributions
upon the liquidation, dissolution or winding up of the Company, on a
proportional basis with Brink's Stock, Minerals Stock or Burlington Stock,
as the case may be. In calculating the number of any class or series of
Equivalent Shares for purposes of Section 11 of this Rights Agreement, the
number of shares, or fractions of a share, of such class or series of
capital stock that is entitled to the same dividend or distribution as a
whole share of Brink's Stock, Minerals Stock or Burlington Stock, as the
case may be, shall be deemed to be one share.
(v) 'Exchange Act' shall mean the Securities Exchange Act of 1934, as
in effect on the date in question, unless otherwise specifically provided
in this Rights Agreement.
(w) 'Expiration Date' shall have the meaning set forth in Section 7(a)
of this Rights Agreement.
(x) 'Major Part' when used with reference to the assets of the Company
and its Subsidiaries as of any date shall mean assets (i) having a fair
market value aggregating 50% or more of the total fair market value of all
the assets of the Company and its Subsidiaries (taken as a whole) as of the
date in question, (ii) accounting for 50% or more of the total value (net
of depreciation and amortization) of all the assets of the Company and its
Subsidiaries (taken as a whole), as would be shown on a consolidated or
combined balance sheet of the Company and its Subsidiaries as of the date
in question, prepared in accordance with generally accepted accounting
principles then in effect, or (iii) accounting for 50% or more of the total
amount of net income of the Company and its Subsidiaries (taken as a
whole), as would be shown on a consolidated or combined statement of income
of the Company and its Subsidiaries for the period of 12 months ending on
the last day of the Company's monthly accounting period next preceding the
date in question, prepared in accordance with generally accepted accounting
principles then in effect.
(y) 'Market Value' when used with reference to Common Shares or
Equivalent Shares on any date shall be deemed to be the average of the
daily closing prices, per share, of such Common Shares or Equivalent Shares
for the period which is the shorter of (1) 30 consecutive Trading Days
immediately prior to the date in question or (2) the consecutive Trading
Days beginning on the date of the first public announcement of the event
requiring a determination of the Market Value and ending on the Trading Day
immediately prior to the record date of such event; provided, however, that
in the event that the Market Value of such Common Shares or Equivalent
Shares is to be determined in whole or in part during a period following
the announcement by the issuer of such Common Shares or Equivalent Shares
of any dividend, distribution or other action of the type described in
paragraph (a), (b), (c) or (d) of Section 11 of this Rights Agreement that
would require an adjustment thereunder, then, and in each such case, the
Market Value of such Common Shares or Equivalent Shares shall be
appropriately adjusted to reflect the effect of such action on the market
price of such Common Shares or Equivalent Shares. The closing price for
each Trading Day shall be the last sale price, regular way, or, in case no
such sale takes place on such Trading Day, the average of the closing bid
and asked prices, regular way, in either case as reported in the principal
consolidated transaction reporting system with respect to a security listed
or admitted to trading on a national securities exchange or, if such
security is not listed or admitted to trading on any national securities
exchange, the last quoted price or, if not so quoted, the average of the
high bid and low asked prices in the over-the-counter market, as reported
by the National Association of Securities Dealers, Inc. Automated
Quotations System ('NASDAQ') or such other system then in use, or, if on
any such Trading Day the applicable securities are not quoted by any such
organization, the average of the closing bid and asked prices as furnished
by a professional market
4
maker making a market in the shares of such securities selected by the
Board of Directors of the Company. If on any such Trading Day no market
maker is making a market in such securities, the fair value of such
securities on such Trading Day shall mean the fair value of such securities
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, the holders of Rights and all
other Persons).
(z) 'Minerals Right' shall have the meaning set forth in the second
introductory paragraph of this Rights Agreement.
(aa) 'Minerals Stock' shall mean Pittston Minerals Group Common Stock,
par value $1.00 per share, of the Company.
(bb) 'Person' shall mean an individual, corporation, partnership,
joint venture, association, trust, unincorporated organization or other
entity.
(cc) 'Preferred Shares' shall mean the Series A Preferred Shares, the
Series B Preferred Shares or the Series D Preferred Shares, as the context
requires. Any reference in this Rights Agreement to Preferred Shares shall
be deemed to include any authorized fraction of a Preferred Share, unless
the context otherwise requires.
(dd) 'Principal Party' shall mean the Surviving Person in a Business
Combination; provided, however, that if such Surviving Person is a direct
or indirect Subsidiary of any other Person, 'Principal Party' shall mean
the Person which is the ultimate parent of such Surviving Person and which
is not itself a Subsidiary of another Person. In the event ultimate control
of such Surviving Person is shared by two or more Persons, 'Principal
Party' shall mean that Person that is immediately controlled by such two or
more Persons.
(ee) 'Purchase Price' with respect to each Right shall mean $40, as
such amount may from time to time be adjusted as provided herein, and shall
be payable in lawful money of the United States of America. All references
herein to the Purchase Price shall mean the Purchase Price as in effect at
the time in question.
(ff) 'Record Date' shall have the meaning set forth in the first
introductory paragraph of this Rights Agreement.
(gg) 'Redemption Date' shall mean the time when the Rights are ordered
to be redeemed by the Board of Directors of the Company as provided in
Section 24(a) of this Rights Agreement.
(hh) 'Redemption Price' shall mean the price required to be paid upon
the redemption of the Rights as provided in Section 24 of this Rights
Agreement.
(ii) 'Registered Common Shares' shall mean Common Shares which are, as
of the date of consummation of a Business Combination, and have been
continuously registered under Section 12 of the Exchange Act during the
preceding 12 months.
(jj) 'Right Certificates' shall have the meaning set forth in Section
3(a) of this Rights Agreement.
(kk) 'Rights' shall mean Brink's Rights, Minerals Rights or Burlington
Rights, as the context requires.
(ll) 'Securities Act' shall mean the Securities Act of 1933, as in
effect on the date in question, unless otherwise specifically provided in
this Rights Agreement.
(mm) 'Series A Preferred Shares' shall mean the Series A Participating
Cumulative Preferred Stock, par value $10 per share, of the Company which
the Board of Directors of the Company has heretofore established, subject
to filing the Articles of Amendment immediately after the Effective Date.
(nn) 'Series B Preferred Shares' shall mean the Series B Participating
Cumulative Preferred Stock, par value $10 per share, of the Company which
the Board of Directors of the Company has heretofore established, subject
to filing the Articles of Amendment immediately after the Effective Date.
5
(oo) 'Series D Preferred Shares' shall mean the Series D Participating
Cumulative Preferred Stock, par value $10 per share, of the Company which
the Board of Directors of the Company has heretofore established, subject
to filing the Articles of Amendment immediately after the Effective Date.
(pp) 'Share Acquisition Date' shall mean the first date of public
disclosure by the Company or an Acquiring Person that an Acquiring Person
has become an Acquiring Person.
(qq) 'Subsidiary' shall mean a Person, a majority of the total
outstanding Voting Rights of which is owned, directly or indirectly, by
another Person or by such other Person and one or more other Subsidiaries
of such other Person.
(rr) 'Surviving Person' shall mean (1) the Person which is the
continuing or surviving Person in a consolidation or merger specified in
clause (i) or (ii) of Section 13(a) of this Rights Agreement or (2) the
Person to which the Major Part of the assets of the Company and its
Subsidiaries are sold, leased, exchanged or otherwise transferred or
disposed of in a transaction specified in clause (iii) of Section 13(a) of
this Rights Agreement; provided, however, that if the Major Part of the
assets of the Company and its Subsidiaries are sold, leased, exchanged or
otherwise transferred or disposed of in one or more related transactions
specified in clause (iii) of Section 13(a) of this Rights Agreement to more
than one Person, the 'Surviving Person' in such case shall mean the Person
that acquired assets of the Company and/or its Subsidiaries with the
greatest fair market value in such transaction or transactions.
(ss) 'Trading Day' shall mean a day on which the principal national
securities exchange (or principal recognized foreign stock exchange, as the
case may be) on which any shares or Rights, as the case may be, are listed
or admitted to trading is open for the transaction of business or, if the
shares or Rights in question are not listed or admitted to trading on any
national securities exchange (or recognized foreign stock exchange, as the
case may be), a Business Day.
(tt) 'Triggering Event' shall have the meaning set forth in clause
(ii) of Section 11(e) of this Rights Agreement.
(uu) 'Voting Rights' when used with reference to the capital stock of,
or units of equity interests in, any Person shall mean the right under
ordinary circumstances (and not merely upon the happening of a contingency)
to vote in the election of directors of such Person (if such Person is a
corporation) or to participate in the management and control of such Person
(if such Person is not a corporation).
SECTION 2. Appointment of Rights Agent. The Company hereby appoints the
Rights Agent to act as agent for the Company in accordance with the terms and
conditions hereof, and the Rights Agent hereby accepts such appointment. The
Company may from time to time appoint one or more co-Rights Agents as it may
deem necessary or desirable (the term 'Rights Agent' being used herein to refer,
collectively, to the Rights Agent together with any such co-Rights Agents). In
the event the Company appoints one or more co-Rights Agents, the respective
duties of the Rights Agent and any co-Rights Agents shall be as the Company
shall determine.
SECTION 3. Issue of Right Certificates. (a) Until the earlier of (i) the
Close of Business on the tenth calendar day after the Share Acquisition Date or
(ii) the Close of Business on the tenth calendar day after the date of the
commencement of 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 of its Subsidiaries, or any Person holding Common Shares for or
pursuant to the terms of any such employee benefit plan) for Common Shares
representing 30% or more of the total Voting Rights of all the outstanding
Common Shares (including any such date which is after the date of this Rights
Agreement and prior to the issuance of the Rights) (the Close of Business on the
earlier of such dates being herein referred to as the 'Distribution Date'), (x)
Brink's Rights, Minerals Rights and Burlington Rights will be evidenced by the
certificates for Brink's Stock, Minerals Stock and Burlington Stock,
respectively, registered in the names of the holders thereof (which certificates
for Brink's Stock, Minerals Stock and Burlington Stock shall also be deemed to
be certificates for Brink's Rights, Minerals Rights and Burlington Rights,
respectively) and not by separate certificates, and (y) the Rights, including
the right to receive certificates as herein provided, will be transferable only
in connection with the transfer of
6
Common Shares. 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 (1) Brink's Stock as of the close of business on the Distribution
Date, at the address of such holder shown on the records of the Company, one or
more right certificates in substantially the form of Exhibit B-1 hereto (the
'Brink's Right Certificates'), evidencing one Brink's Right for each share of
Brink's Stock so held, (2) Minerals Stock as of the close of business on the
Distribution Date, at the address of such holder shown on the records of the
Company, one or more right certificates in substantially the form of Exhibit B-2
hereto (the 'Minerals Right Certificates'), evidencing one Minerals Right for
each share of Minerals Stock so held and (3) Burlington Stock as of the close of
business on the Distribution Date, at the address of such holder shown on the
records of the Company, one or more right certificates in substantially the form
of Exhibit B-3 hereto (the 'Burlington Right Certificates' and, together with
the Brink's Right Certificates and the Minerals Right Certificates, the 'Right
Certificates'), evidencing one Burlington Right for each share of Burlington
Stock so held. As of and after the Distribution Date, the Rights will be
evidenced solely by such Right Certificates.
(b) Until the earliest of the Distribution Date, the Redemption Date or the
Expiration Date, the surrender for transfer of any of the certificates for the
Common Shares in respect of which Rights have been issued shall also constitute
the transfer of the Rights associated with the Common Shares represented by such
certificate.
(c) Rights shall be issued in respect of all Common Shares which are issued
after the Effective Date but prior to the earliest of the Distribution Date, the
Redemption Date or the Expiration Date. Certificates representing Common Shares
shall also be deemed to be certificates for the Rights, and shall bear the
following legend:
This certificate also evidences and entitles the holder hereof to
certain Rights as set forth in an Amended and Restated Rights Agreement
dated as of December [xx], 1995 (the 'Rights Agreement'), between The
Pittston Company and Chemical Bank, as Rights Agent, the terms of which are
hereby incorporated herein by reference and a copy of which is on file at
the principal executive offices of The Pittston Company. The term 'Rights
Agreement' as used herein includes each amendment thereto or supplement
thereof made from time to time, the terms of each of which are incorporated
herein by reference and a copy of each of which is on file as hereinabove
stated. 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 Pittston Company will mail to the
holder of this certificate a copy of the Rights Agreement without charge
after receipt of a written request therefor. Under no circumstances shall
Rights evidenced by this certificate be transferred to any Person who is or
becomes an Acquiring Person or an Affiliate or Associate thereof (as such
terms are defined in the Rights Agreement) and any such purported transfer
shall be, and shall render such Rights, null and void.
Until the Distribution Date the Rights associated with the Common Shares
represented by such certificates shall be evidenced by such certificates alone,
and the surrender for transfer of any such certificate shall also constitute the
transfer of the Rights associated with the Common Shares represented thereby.
SECTION 4. Forms of Right Certificates. The Brink's Right Certificates, the
Minerals Right Certificates and the Burlington Right Certificates (and the forms
of assignment and the forms of election to purchase to be printed on the reverse
thereof) shall be in substantially the forms set forth as Exhibit B-1, Exhibit
B-2 and Exhibit B-3 hereto, respectively, 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 Rights 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
Sections 11 and 23 hereof, the Right Certificates, whenever issued, shall be
dated as of the Record Date, and on their face shall entitle the holders thereof
to purchase such number of Preferred Shares as shall be set forth therein for
the Purchase Price set forth therein.
7
SECTION 5. Execution, Countersignature and Registration. (a) The Right
Certificates shall be executed on behalf of the Company by the Chairman of the
Board, the President or any Vice President of the Company, either manually or by
facsimile signature, and have affixed thereto the Company's seal or a facsimile
thereof which shall be attested by the Secretary or an Assistant Secretary of
the Company, either manually or by facsimile signature. The Right Certificate
shall be manually countersigned by the Rights Agent and shall not be valid or
obligatory for any purpose unless so countersigned. In case any officer of the
Company who shall have signed any of the Right Certificates shall cease to be
such officer of the Company before countersignature by the Rights Agent and
issuance and delivery by the Company, such Right Certificates may nevertheless
be countersigned by the Rights Agent, and issued and delivered by the Company,
with the same force and effect as though the person who signed such Right
Certificates had not ceased to be such officer of the Company; and any Right
Certificate may be signed on behalf of the Company by any person who, at the
actual date of the execution of such Right Certificate, shall be a proper
officer of the Company to sign such Right Certificate, although at the date of
the execution of this Rights Agreement any such person was not such an officer
of the Company.
(b) Following the Distribution Date, the Rights Agent will keep or cause to
be kept, at its principal office in New York, New York, books for registration
and transfer of the Right Certificates issued hereunder. Such books shall show
the names and addresses of the respective holders of the Right Certificates, the
number of Rights evidenced by each of the Right Certificates, the certificate
number of each of the Right Certificates and the date of each of the Right
Certificates.
SECTION 6. Transfer, Split-up, Combination and Exchange of Right
Certificates; Mutilated, Destroyed, Lost or Stolen Right Certificates. (a)
Subject to the provisions of Section 7(e) and Section 15 hereof, at any time
after the Distribution Date, and at or prior to the Close of Business on the
earlier of the Redemption Date or the Expiration Date, any Right Certificate or
Certificates may be transferred, split-up, combined or exchanged for another
Right Certificate or Certificates, entitling the registered holder to purchase a
like number of Preferred Shares as the Right Certificate or Certificates
surrendered then entitled such holder to purchase. Any registered holder
desiring to transfer, split-up, combine or exchange any Right Certificate shall
make such request in writing delivered to the Rights Agent, and shall surrender
the Right Certificate or Certificates to be transferred, split-up, combined or
exchanged at the principal office of the Rights Agent. Thereupon the Rights
Agent shall, subject to Section 7(e) and Section 15 hereof, countersign and
deliver to the Person entitled thereto a Right Certificate or Certificates, as
the case may be, as so requested. The Company may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer, split-up, combination or exchange of Right
Certificates.
(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 valid
Right Certificate, and, in case of loss, theft or destruction, of indemnity or
security reasonably satisfactory to them, and, at the Company's request,
reimbursement to the Company and the Rights Agent of all reasonable expenses
incidental thereto, and upon surrender to the Rights Agent and cancelation of
the Right Certificate if mutilated, the Company will make a new Right
Certificate of like tenor and deliver such new Right Certificate to the Rights
Agents for delivery to the registered owner in lieu of the Right Certificate so
lost, stolen, destroyed or mutilated.
SECTION 7. Exercise of Rights; Expiration Date of Rights; Restriction on
Transfer of Rights. (a) Each Right shall entitle the registered holder thereof,
upon the exercise thereof as provided herein, to purchase, for the Purchase
Price, at any time after the earlier of the Distribution Date or the occurrence
of a Triggering Event and at or prior to the earlier of (i) the Close of
Business on September 25, 1997 (the Close of Business on such date being herein
referred to as the 'Expiration Date') or (ii) the Redemption Date, one
one-thousandth (1/1000th) of a Preferred Share, subject to adjustment from time
to time as provided in Sections 11 and 13 of this Rights Agreement.
(b) The registered holder of any Right Certificate may exercise the Rights
evidenced thereby (except as otherwise provided herein) in whole or in part at
any time after the Distribution Date upon surrender of the Right Certificate,
with the form of election to purchase on the reverse side thereof duly executed,
to the Rights Agent at the principal office of the Rights Agent in New York, New
York, together with payment of the Purchase Price for such one one-thousandth
(1/1000th) of a Preferred
8
Share as to which the Rights are exercised, at or prior to the earlier of (i)
the Expiration Date or (ii) the Redemption Date.
(c) Upon receipt of a Right Certificate representing exercisable Rights,
with the form of election to purchase duly executed, accompanied by payment of
the Purchase Price for the Preferred Shares to be purchased together with an
amount equal to any applicable transfer tax, in lawful money of the United
States of America, in cash or by certified check or money order payable to the
order of the Company, the Rights Agent shall thereupon promptly (i) requisition
from any transfer agent of the Preferred Shares (or make available, if the
Rights Agent is the transfer agent) certificates for the number of Preferred
Shares to be purchased and the Company hereby irrevocably authorizes its
transfer agent to comply with all such requests, (ii) when appropriate,
requisition from the Company the amount of cash to be paid in lieu of issuance
of fractional shares in accordance with Section 15 hereof, (iii) promptly after
receipt of such certificates, cause the same to be delivered to or upon the
order of the registered holder of such Right Certificate, registered in such
name or names as may be designated by such holder, and (iv) when appropriate,
after receipt promptly deliver such cash to or upon the order of the registered
holder of such Right Certificate.
(d) In case the registered holder of any Right Certificate shall exercise
less than all the Rights evidenced thereby, a new Right Certificate evidencing
Rights equivalent to the Rights remaining unexercised shall be issued by the
Rights Agent and delivered to the registered holder of such Right Certificate or
to his duly authorized assigns, subject to the provisions of Section 15 hereof.
(e) Notwithstanding anything in this Agreement to the contrary, Rights,
including Rights evidenced by certificates for Common Shares, shall not at any
time be transferable to an Acquiring Person or any Affiliate or Associate of an
Acquiring Person or to any Person who subsequently becomes an Acquiring Person
or Affiliate or Associate of an Acquiring Person, although at the time of the
purported transfer such Person was not an Acquiring Person or an Affiliate or
Associate thereof. Any attempt to transfer Rights to any such Person shall be
null and void as of the date of the purported transfer. Any Right which has been
the subject of any such purported transfer shall be null and void, and
thereafter may not be exercised by any Person (including any subsequent
transferee) for Preferred Shares or capital stock of the Company pursuant to any
provision hereof. The Company may require (or cause the Rights Agent or any
transfer agent of the Company to require) any Person who submits a Right
Certificate (or a certificate representing Common Shares which evidences, or but
for the provisions of this Section 7(e) would evidence, Rights) for transfer on
the registry books or to exercise the Rights represented thereby to establish to
the reasonable satisfaction of the Company that such Rights have not been the
subject of any purported transfer in violation of the provision of this Section
7(e). The Company shall use all reasonable efforts to ensure that the provisions
of this Section 7(e) are complied with, but shall have no liability to any
holder of Right Certificates or any other Person as a result of its failure to
make any determinations with respect to an Acquiring Person or its Affiliates or
Associates hereunder.
(f) Notwithstanding anything in this Rights Agreement to the contrary,
neither the Rights Agent nor the Company shall be obligated to undertake any
action with respect to a registered holder of any Right Certificates 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 Right
Certificate surrendered for such exercise, and (ii) provided such additional
evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or
Affiliates or Associates thereof as the Company shall reasonably request.
SECTION 8. Cancelation and Destruction of Right Certificates. All Right
Certificates surrendered for the purposes of exercise, transfer, split-up,
combination or exchange shall, if surrendered to the Company or to any of its
agents, be delivered to the Rights Agent for cancelation or in canceled form,
or, if surrendered to the Rights Agent, shall be canceled by it, and no Right
Certificates shall be issued in lieu thereof except as expressly permitted by
any of the provisions of this Rights Agreement. The Company shall deliver to the
Rights Agent for cancelation and retirement, and the Rights Agent shall so
cancel and retire, any Right Certificate purchased or acquired by the Company.
The Rights Agent shall deliver all canceled Right Certificates to the Company,
or shall, at the written request of the Company, destroy such canceled Right
Certificates, and in such case shall deliver a certificate of destruction
thereof to the Company.
9
SECTION 9. Reservation and Availability of Preferred Shares. (a) The
Company covenants and agrees that it will cause to be reserved and kept
available out of its authorized and unissued Preferred Shares, free from
preemptive rights or any right of first refusal, a number of Preferred Shares
sufficient to permit the exercise in full of all outstanding Rights.
(b) The Company covenants and agrees that it will take all such action as
may be necessary to ensure that all Preferred Shares delivered upon exercise of
Rights shall, at the time of delivery of the certificates for such Preferred
Shares (subject to payment of the Purchase Price), be duly and validly
authorized and issued and fully paid and non-assessable shares.
(c) So long as the Preferred Shares issuable upon the exercise of Rights
are to be listed on any national securities exchange, the Company covenants and
agrees to use its best efforts to cause, from and after such time as the Rights
become exercisable, all Preferred Shares reserved for such issuance to be listed
on such exchange upon official notice of issuance upon such exercise.
(d) The Company further covenants and agrees that it will pay when due and
payable any and all Federal and state transfer taxes and charges which may be
payable in respect of the issuance or delivery of Right Certificates or of any
Preferred Shares upon the exercise of the Rights. The Company shall not,
however, be required to pay any transfer tax which may be payable in respect of
any transfer or delivery of Right Certificates to a Person other than, or in
respect of the issuance or delivery of certificates for the Preferred Shares in
a name other than that of, the registered holder of the Right Certificate
evidencing Rights surrendered for exercise or to issue or deliver any
certificates for Preferred Shares upon the exercise of any Rights until any such
tax shall have been paid (any such tax being payable by the holder of such Right
Certificate at the time of surrender) or until it has been established to the
Company's satisfaction that no such tax is due.
SECTION 10. Preferred Shares Record Date. Each Person in whose name any
certificate for Preferred Shares is issued upon the exercise of Rights shall for
all purposes be deemed to have become the holder of record of the Preferred
Shares represented thereby on, and such certificate shall be dated, the date
upon which the Right Certificate evidencing such Rights was duly surrendered and
payment of the Purchase Price (and any applicable transfer taxes) was made;
provided, however, that if the date of such surrender and payment is a date upon
which the Preferred Shares transfer books of the Company are closed, such person
shall be deemed to have become the record holder of such shares on, and such
certificate shall be dated, the next succeeding Business Day on which the
Preferred Shares transfer books of the Company are open.
SECTION 11. Adjustment of Number and Kind of Shares and the Purchase Price.
The number and kind of shares subject to purchase upon the exercise of each
Right and the Purchase Price are subject to adjustment from time to time as
provided in this Section 11.
(a) In the event at any time after the date of this Rights Agreement the
Company shall (i) declare a dividend, or make a distribution, on any class of
its Common Shares payable in Common Shares, (ii) subdivide (by stock split or
otherwise) or split any class of its outstanding Common Shares into a larger
number of Common Shares or (iii) combine (by reverse stock split or otherwise)
or consolidate any class of its outstanding Common Shares into a smaller number
of Common Shares, then, in each such event, (1) the number of Preferred Shares
issuable upon exercise of each Right at the time of the record date for such
dividend or distribution or the effective date of such subdivision or
combination, shall be adjusted so that the number of Preferred Shares thereafter
issuable upon exercise of such Right shall equal the result obtained by
multiplying the number of Preferred Shares issuable upon exercise of each Right
at such time by a fraction, the numerator of which shall be the total number of
Rights outstanding immediately prior to such time and the denominator of which
shall be the total number of Rights outstanding immediately following such time,
and (2) the Purchase Price in effect at such time shall be adjusted so that the
Purchase Price thereafter shall equal the result obtained by multiplying the
Purchase Price in effect immediately prior to such time by the fraction referred
to in the preceding clause (1).
(b) In the event at any time after the date of this Rights Agreement the
Company shall (i) declare a dividend, or make a distribution, on any series of
its outstanding Preferred Shares payable in Preferred Shares, (ii) subdivide (by
stock split or otherwise) or split any series of its outstanding
10
Preferred Shares into a larger number of Preferred Shares, (iii) combine (by a
reverse stock split or otherwise) or consolidate any series of its outstanding
Preferred Shares into a smaller number of Preferred Shares or (iv) issue any
shares of its capital stock in a reclassification or change of any series of its
outstanding Preferred Shares (including any such reclassification or change in
connection with a merger in which the Company is the continuing or surviving
corporation), then in each such event, the number and kind of shares of capital
stock issuable upon the exercise of each Right at the time of the record date
for such dividend or distribution or the effective date of such subdivision,
combination or reclassification shall be adjusted so that the holder of any
Right exercised after such time shall be entitled to receive, for the Purchase
Price, the aggregate number and kind of shares of capital stock which such
holder would have owned and been entitled to receive by virtue of such dividend,
subdivision, combination or reclassification if such holder had exercised such
Right immediately prior to such time.
(c) If at any time after the date of this Rights Agreement the Company
shall fix a record date for the issuance of rights, options or warrants to all
holders of any class of Common Shares or of any class or series of Equivalent
Shares entitling such holders (for a period expiring within 45 calendar days
after such record date) to subscribe for or purchase Common Shares or Equivalent
Shares (or securities convertible into Common Shares or Equivalent Shares) at a
price per share (or having a conversion price per share, if a security
convertible into Common Shares or Equivalent Shares) less than the Market Value
of such Common Shares or Equivalent Shares on such record date, then, in each
such case, each Right outstanding immediately prior to such record date shall
thereafter evidence the right to purchase, for the Purchase Price, that number
of one one-thousandths (1/1000ths) of a Preferred Share obtained by multiplying
the number of one one-thousandths (1/1000ths) of a Preferred Share issuable upon
exercise of a Right immediately prior to such record date by a fraction, the
numerator of which shall be the number of Common Shares and Equivalent Shares
(if any) outstanding on such record date plus the number of additional Common
Shares or Equivalent Shares, as the case may be, to be offered for subscription
or purchase (or into which the convertible securities so to be offered are
initially convertible) and the denominator of which shall be the total number of
Common Shares and Equivalent Shares (if any) outstanding on such record date
plus the number of Common Shares or Equivalent Shares, as the case may be, which
the aggregate offering price of the total number of Common Shares or Equivalent
Shares, as the case may be, so to be offered (and/or the aggregate initial
conversion price of the convertible securities so to be offered) would purchase
at such Market Value. In case such subscription price may be paid in a
consideration, part or all of which shall 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. Common Shares and Equivalent Shares owned by or
held for the account of the Company or any Subsidiary 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, options or warrants are not so issued, each Right shall
be adjusted to evidence the right to receive that number of one one-thousandths
(1/1000ths) of a Preferred Share which such Right would have entitled the holder
to receive, for the Purchase Price, if such record date had not been fixed.
(d) If at any time after the date of this Rights Agreement the Company
shall fix a record date for the making of a distribution to all holders of any
class of Common Shares or of any class or series of Equivalent Shares (including
any such distribution made in connection with a merger in which the Company is
the continuing or surviving corporation or in connection with a statutory share
exchange with the Company after which the Company is not a Subsidiary of any
Acquiring Person or any Associate or Affiliate of any Acquiring Person) of cash
(other than a regular periodic cash dividend at a rate not in excess of 125% of
the rate of the last regular cash dividend theretofore paid on the class of
Common Shares, evidences of indebtedness, assets, securities (other than Common
Shares or Preferred Shares) or subscription rights, options or warrants
(excluding those referred to in Section 11(c)), then, in each such case, each
Right outstanding immediately prior to such record date shall thereafter
evidence the right to purchase, for the Purchase Price, that number of one
one-thousandths (1/1000ths) of a Preferred Share obtained by multiplying the
number of one one-thousandths (1/1000ths) of a Preferred Share issuable upon
exercise of such Right immediately prior to such record date by a fraction, the
numerator of which shall be the Market Value of such Common Shares or Equivalent
11
Shares on the record date and the denominator of which shall be the Market Value
of such Common Shares or Equivalent Shares 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, evidences of indebtedness, assets or
securities so to be distributed or of such subscription rights, options or
warrants applicable to one Common Share or Equivalent Share, as the case may be.
Such adjustments shall be made successively whenever such a record date is
fixed; and in the event that such distribution is not so made, each Right shall
be adjusted to evidence the right to receive that number of one one-thousandths
(1/1000ths) of a Preferred Share which such Right would have entitled the holder
to receive, for the Purchase Price, if such record date had not been fixed.
(e) (i) If any Acquiring Person or any Affiliate or Associate of any
Acquiring Person, at any time after the date of this Rights Agreement, directly
or indirectly, shall merge into the Company or otherwise combine with the
Company and the Company shall be the continuing or surviving corporation of such
merger or combination and all the Common Shares shall remain outstanding and
unchanged, or shall effect a statutory share exchange with the Company after
which the Company is not a Subsidiary of any Acquiring Person or any Affiliate
or Associate of any Acquiring Person (such merger, share exchange or combination
being herein referred to as an 'Affiliate Merger') then, in each such case,
proper provision shall be made so that each holder of a Right, except as
provided in Section 7(e) hereof and below, shall thereafter have a right to
receive, upon exercise thereof for the Purchase Price in accordance with the
terms of this Rights Agreement, such number of Common Shares as shall equal the
result obtained by multiplying the Purchase Price by a fraction, the numerator
of which is the number of one one-thousandths (1/1000ths) of a Preferred Share
for which such Right is then exercisable and the denominator of which is 50% of
the Market Value of the Common Shares on the date of the occurrence of such
merger or combination. The Company shall not consummate any Affiliate Merger
unless upon such consummation it shall have sufficient authorized Common Shares
that have not been issued or reserved for issuance to permit the exercise in
full of the Rights in accordance with this Section 11(e)(i) and unless prior
thereto a registration statement under the Securities Act on an appropriate
form, with respect to the Common Shares purchasable upon exercise of the Rights,
shall be effective under the Securities Act. The Company covenants and agrees to
use its best efforts to:
(A) cause a registration statement under the Securities Act on an
appropriate form with respect to the Common Shares purchasable upon
exercise of the Rights, to remain effective (with a prospectus at all times
meeting the requirements of the Securities Act) until the Expiration Date;
(B) qualify or register the Common Shares purchasable upon exercise of
the Rights under the blue sky laws of such jurisdictions as may be
necessary or appropriate; and
(C) list the Common Shares purchasable upon the exercise of the Rights
on each national securities exchange on which the Common Shares were listed
prior to the consummation of such Affiliate Merger.
(ii) If any of the events described in the following clauses (A), (B), (C)
or (D) of this subparagraph (e)(ii) (each such event being herein referred to as
a 'Triggering Event') shall occur:
(A) any Acquiring Person or any Affiliate or Associate of any
Acquiring Person, at any time after the date of this Rights Agreement,
directly or indirectly (1) shall, in one or more transactions, transfer any
assets to the Company or any Subsidiary of the Company in exchange (in
whole or in part) for shares of capital stock of the Company or any
Subsidiary of the Company or for securities exercisable for or convertible
into shares of capital stock of the Company or any Subsidiary of the
Company or otherwise obtain from the Company or any of its Subsidiaries,
with or without consideration, any additional shares of capital stock of
the Company or any Subsidiary of the Company or securities exercisable for
or convertible into shares of capital stock of the Company or any
Subsidiary of the Company (other than as a part of a pro rata distribution
or offer to all holders of Common Shares or an issuance upon conversion of
convertible securities of the Company or any of its Subsidiaries that were
not acquired from the Company or any of its Subsidiaries), (2) shall, in
one or more transactions, sell, purchase, lease, exchange, mortgage, pledge
or transfer to or with, or acquire from, the Company or any of its
Subsidiaries, assets on
12
terms and conditions less favorable to the Company than the Company would
be able to obtain in an arm's-length negotiation with an unaffiliated third
party, (3) shall engage in any transaction with the Company involving the
sale, purchase, lease, exchange, mortgage, pledge or transfer (in one
transaction or a series of transactions), other than incidental to the
lines of business currently engaged in as of the date hereof by the Company
and such Acquiring Person or Associate or Affiliate, of assets having an
aggregate fair market value of more than $10,000,000, (4) shall receive any
compensation from the Company or any Subsidiaries of the Company other than
compensation for full-time employment as a regular employee at rates in
accordance with past practices of the Company or Subsidiaries of the
Company or (5) shall receive the benefits, directly or (except
proportionately as a shareholder), of any loans, advances, guarantees,
pledges or other financial assistance provided by the Company or any
Subsidiaries of the Company;
(B) during such time as there is an Acquiring Person and Disinterested
Directors do not constitute a majority of the entire Board of Directors of
the Company, there shall be (1) any reclassification of securities of the
Company, including any reverse stock split, (2) any recapitalization of the
Company, (3) any merger, statutory share exchange or consolidation of the
Company with any of its Subsidiaries or (4) any other transaction or series
of transactions (whether or not with or into or otherwise involving an
Acquiring Person), which has the effect, directly or indirectly, of
increasing by more than 1% the proportionate share of the then outstanding
shares of any class of equity securities or of securities exercisable for
or convertible into securities of the Company or any of its Subsidiaries
which is directly or indirectly owned by an Acquiring Person or any
Associate or Affiliate of any Acquiring Person;
(C) any Person (other than the Company, any Subsidiary of the Company,
any employee benefit plan of the Company or of any of its Subsidiaries or
any Person holding Common Shares for or pursuant to the terms of any such
employee benefit plan), alone or together with all Affiliates and
Associates of such Person, shall become the Beneficial Owner of Common
Shares representing 30% or more of the total Voting Rights of all the
Common Shares then outstanding;
(D) during such time as there is an Acquiring Person and Disinterested
Directors do not constitute a majority of the entire Board of Directors of
the Company, (1) there shall be any reduction in the annual rate of
dividends paid on the Common Shares (except as necessary for valid business
reasons or to reflect any subdivision of the Common Shares or as required
under the laws of the jurisdiction of incorporation of the Company), or (2)
there shall be a failure to increase the annual rate of dividends as
necessary to reflect any reclassification (including any reverse stock
split), recapitalization, reorganization or any similar transaction which
has the effect of reducing the number of outstanding Common Shares (except
as necessary for valid business reasons or except to the extent such
increase in the rate of dividends would be prohibited under the laws of the
jurisdiction of incorporation of the Company); then, in each such case,
proper provision shall be made so that each holder of a valid Right, except
as provided in Section 7(e) hereof and below, shall thereafter have a right
to receive, upon exercise thereof for the Purchase Price in accordance with
the terms of this Rights Agreement, such number of one-thousandths
(1/1000ths) of a Preferred Share as shall equal the result obtained by
multiplying the Purchase Price by a fraction, the numerator of which is the
number of one one-thousandths (1/1000ths) of a Preferred Share for which
such Right is then exercisable and the denominator of which is 50% of the
Market Value of the Common Shares on the date of the occurrence of such
Triggering Event. If a Triggering Event has occurred, as soon as
practicable after the date which is the later of the date of such a
Triggering Event or the Distribution Date, the Company covenants and agrees
to use its best efforts to:
(i) prepare and file a registration statement under the Securities
Act, on an appropriate form, with respect to the Preferred Shares
purchasable upon exercise of the Rights;
(ii) cause such registration statement to become effective as soon
as practicable after such filing;
(iii) cause such registration statement to remain effective (with a
prospectus at all times meeting the requirements of the Securities Act)
until the Expiration Date; and
13
(iv) qualify or register the Preferred Shares purchasable upon
exercise of the Rights under the blue sky laws of such jurisdictions as
may be necessary or appropriate.
The Company may temporarily suspend, for a period of time not to exceed 90
calendar days after the date set forth in the immediately preceding sentence,
the exercisability of the Rights in order to prepare and file such registration
statement and permit it to become effective. Upon any such suspension, the
Company shall issue a public announcement stating that the exercisability of the
Rights has been temporarily suspended, as well as a public announcement at such
time as the suspension is no longer in effect.
(iii) If an event occurs which would require an adjustment under both
subparagraph (e)(i) or (e)(ii) of this Section 11 and paragraph (a), (b), (c) or
(d) of this Section 11, the adjustment provided for in paragraph (a), (b), (c)
or (d) of this Section 11 shall be in addition to, and shall be made prior to,
any adjustment required pursuant to subparagraph (e)(i) or (e)(ii) of this
Section 11; provided, however, that if a single event occurs that represents
both an Affiliate Merger or Triggering Event and a Business Combination, the
Rights exercisable upon such event shall be exercisable only in a manner set
forth in Section 13(a) of this Rights Agreement and no adjustment shall be made
pursuant to any paragraph of this Section 11.
(f) All calculations under this Section 11 shall be made to the nearest
hundred-thousandth of a share.
(g) If as a result of an adjustment made pursuant to Section 11(b) hereof,
the holder of any Right thereafter exercised shall become entitled to receive
any shares of capital stock of the Company other than Preferred Shares,
thereafter the number of such other shares so receivable upon exercise of any
Right 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 Shares contained in paragraphs (a) through (e), inclusive, of this
Section 11 and the provisions of Sections 7, 9, 10 and 13 hereof with respect to
the Preferred Shares shall apply on like terms to any such other shares.
(h) All Rights originally issued by the Company subsequent to any
adjustment made to the amount of Preferred Shares or other capital stock
relating to a Right shall evidence the right to purchase, for the Purchase
Price, the adjusted number and kind of shares of capital stock purchasable from
time to time hereunder upon exercise of the Rights, all subject to further
adjustment as provided herein.
(i) Irrespective of any adjustment or change in the Purchase Price or the
number of Preferred Shares or number or kind of other shares of capital stock
issuable upon the exercise of the Rights, the Right Certificates theretofore and
thereafter issued may continue to express the terms which were expressed in the
initial Right Certificates issued hereunder.
(j) In any case in which this Section 11 shall require that an adjustment
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 issuing to the holder of
any Right exercised after such record date the Preferred Shares and/or other
shares of capital stock or securities of the Company, if any, issuable upon such
exercise over and above the Preferred Shares and/or other shares of capital
stock or securities of the Company, if any, issuable before giving effect 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 upon the occurrence of the event requiring
such adjustment.
(k) After the occurrence of an Affiliate Merger, the number of Common
Shares thereafter receivable upon exercise of any Right 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 Shares contained in
Sections 7, 9, 10, 11 and 13 hereof.
(l) In any case in which this Section 11 requires a change or adjustment to
the 'Common Shares', the 'Preferred Shares', the 'Rights' and/or the 'Purchase
Price', it is understood that, to the extent circumstances dictate, as
determined by the Board in its sole discretion, that any such change or
adjustment should only be made to (i) Brink's Stock, Series A Preferred Shares,
Brink's Rights and/or the Purchase Price relating to Brink's Rights, (ii)
Minerals Stock, Series B Preferred Shares, Minerals Rights and/or the Purchase
Price relating to Minerals Rights or (iii) Burlington Stock, Series D Preferred
Shares, Burlington Rights and/or the Purchase Price relating to Burlington
Rights, any such
14
change or adjustment will be deemed to affect only such Stock, such Shares, such
Rights and/or the Purchase Price relating to such Rights.
SECTION 12. Certificate of Adjustment. Whenever an adjustment is made as
provided in Section 11 or Section 13 hereof, the Company shall (a) promptly
prepare a certificate setting forth such adjustment and a brief statement of the
facts accounting for such adjustment, (b) promptly file with the Rights Agent
and with each transfer agent for the Preferred Shares a copy of such certificate
and (c) mail a brief summary thereof to each holder of a Right Certificate in
accordance with Section 26 hereof. The Rights Agent shall be fully protected in
relying on any such certificate and on any adjustment therein contained.
SECTION 13. Consolidation, Merger, Share Exchange or Sale or Transfer of
Major Part of Assets. (a) In the event that, following the Distribution Date,
directly or indirectly, any transactions specified in the following clauses (i),
(ii) or (iii) hereof (each such transaction being herein referred to as a
'Business Combination') shall be consummated:
(i) the Company shall consolidate with, or merge with and into, any
other Person;
(ii) any Person shall merge with and into the Company and in
connection with such merger, all or part of the Common Shares shall be
changed into or exchanged for capital stock or other securities of any
other Person or cash or any other property or the Company shall enter into
a statutory share exchange with any Person after which the Company is a
Subsidiary of such Person or any Affiliate or Associate of such Person; or
(iii) the Company shall sell, lease, exchange or otherwise transfer or
dispose of (or one or more of its Subsidiaries shall sell, lease, exchange
or otherwise transfer or dispose of), in one or more transactions, the
Major Part of the assets of the Company and its Subsidiaries (taken as a
whole) to any other Person or Persons,
then, in each such case, proper provision shall be made so that each holder of a
valid Right shall thereafter have the right to receive, upon the exercise
thereof for the Purchase Price in accordance with the terms of this Rights
Agreement, the securities specified below:
(A) If the Principal Party in such Business Combination has Registered
Common Shares outstanding, each Right shall thereafter represent the right
to receive, upon the exercise thereof at the Purchase Price in accordance
with the terms of this Rights Agreement, such number of Registered Common
Shares of such Principal Party, free and clear of all liens, encumbrances
or other adverse claims, as shall be equal to the result obtained by
multiplying the Purchase Price by a fraction, the numerator of which shall
be the number of one one-thousandths (1/1000ths) of a Preferred Share for
which a Right was exercisable immediately prior to consummation of such
Business Combination and the denominator of which shall be 50% of the
Market Value of each Registered Common Share of such Principal Party on the
date of such Business Combination.
(B) If the Principal Party in such Business Combination does not have
Registered Common Shares outstanding, each Right shall thereafter represent
the right to receive, upon the exercise thereof at the Purchase Price in
accordance with the terms of this Rights Agreement, at the election of the
holder of such Right at the time of the exercise thereof:
(1) such number of Common Shares of the Surviving Person in such
Business Combination as shall be equal to the result obtained by
multiplying the Purchase Price by a fraction, the numerator of which
shall be the number of one one-thousandths (1/1000ths) of a Preferred
Share for which a Right was exercisable immediately prior to the
consummation of such Business Combination and the denominator of which
shall be 50% of the Book Value of each Common Share of such Surviving
Person immediately after giving effect to such Business Combination; or
(2) such number of Common Shares of the Principal Party in such
Business Combination (if the Principal Party is not also the Surviving
Person in such Business Combination) as shall be equal to the result
obtained by multiplying the Purchase Price by a fraction, the numerator
of which shall be the number of one one-thousandths (1/1000ths) of a
Preferred Share for which a Right was exercisable immediately prior to
the consummation of such Business
15
Combination and the denominator of which shall be 50% of the Book Value
of each Common Share of the Principal Party immediately after giving
effect to such Business Combination; or
(3) if the Principal Party in such Business Combination is an
Affiliate of one or more Persons which has Registered Common Shares
outstanding, such number of Registered Common Shares of whichever of
such Affiliates of the Principal Party has Registered Common Shares with
the greatest aggregate Market Value on the date of consummation of such
Business Combination as shall be equal to the result obtained by
multiplying the Purchase Price by a fraction, the numerator of which
shall be the number of one one-thousandths (1/000ths) of a Preferred
Share for which a Right was exercisable immediately prior to the
consummation of such Business Combination and the denominator of which
shall be 50% of the Market Value of each Registered Common Share of such
Affiliate on the date of such Business Combination.
All Common Shares of any Person for which any Right may be exercised after
consummation of a Business Combination as provided in this Section 13(a) shall,
when issued upon exercise thereof in accordance with this Rights Agreement, be
validly issued, fully paid and nonassessable and free of preemptive rights,
rights of first refusal or any other restrictions or limitations on the transfer
or ownership thereof.
(b) After consummation of any Business Combination (i) each issuer of
Common Shares for which Rights may be exercised as set forth in paragraph (a) of
this Section 13 shall be liable for, and shall assume, by virtue of such
Business Combination, all the obligations and duties of the Company pursuant to
this Rights Agreement, (ii) the term 'Company' shall thereafter be deemed to
refer to such issuer, (iii) each such issuer shall take such steps in connection
with such consummation as may be necessary to assure that the provisions hereof
shall thereafter be applicable, as nearly as reasonably may be, in relation to
its Common Shares thereafter deliverable upon the exercise of the Rights, and
(iv) the number of Common Shares of each such issuer thereafter receivable upon
exercise of any Right 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 Shares contained in Sections 7, 9, 10, 11 and 13
hereof.
(c) The Company shall not consummate any Business Combination unless each
issuer of Common Shares for which Rights may be exercised, as set forth in
paragraph (a) of this Section 13, shall have sufficient authorized Common Shares
that 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:
(i) a registration statement under the Securities Act on an
appropriate form, with respect to the Rights and the Common Shares of such
issuer purchasable upon exercise of the Rights, shall be effective under
the Securities Act; and
(ii) the Company and each such issuer shall have:
(A) executed and delivered to the Rights Agent a supplemental
agreement providing for the obligation of such issuer to issue Common
Shares upon the exercise of Rights in accordance with the terms set
forth in paragraphs (a) and (b) of this Section 13 and further providing
that such issuer, at its own expense, will:
(I) use its best efforts to cause a registration statement under
the Securities Act on an appropriate form, with respect to the Rights
and the Common Shares of such issuer purchasable upon exercise of the
Rights, to remain effective (with a prospectus at all times meeting
the requirements of the Securities Act) until the Expiration Date;
(II) use its best efforts to qualify or register the Rights and
the Common Shares of such issuer purchasable upon exercise of the
Rights under the blue sky laws of such jurisdictions as may be
necessary or appropriate; and
(III) use its best efforts to list the Rights and the Common
Shares purchasable upon exercise of the Rights on each national
securities exchange on which the Common Shares were listed prior to
the consummation of the Business Combination or, if the Common Shares
were not listed on a national securities exchange prior to the
consummation of the Business Combination, on a national securities
exchange;
16
(B) furnished to the Rights Agent an opinion of independent counsel
stating that such supplemental agreement is a valid, binding and
enforceable agreement of such issuer; and
(C) filed with the Rights Agent a certificate of a nationally
recognized firm of independent accountants setting forth the number of
Common Shares of such issuer which may be purchased upon the exercise of
each Right after the consummation of such Business Combination.
(d) In the event a Business Combination shall be consummated at any time
after the occurrence of an Affiliate Merger or a Triggering Event, the Rights
that have not been exercised prior to such time shall thereafter become
exercisable in the manner set forth in paragraph (a) of this Section 13.
SECTION 14. Additional Covenants. (a) Notwithstanding any other provision
of this Rights Agreement, no adjustment to the number of Preferred Shares (or
fractions of a share) or other shares of capital stock for which a Right is
exercisable or the number of Rights outstanding or associated with each Common
Share or any similar or other adjustment shall be made or be effective if such
adjustment would have the effect of reducing or limiting the benefits the
holders of the Rights would have had absent such adjustment, including, without
limitation, the benefits under Section 11 and Section 13 hereof, unless the
terms of this Rights Agreement are amended so as to preserve such benefits.
(b) The Company covenants and agrees that it shall not effect any Business
Combination or Affiliate Merger if at the time of, or immediately after such
Business Combination or Affiliate Merger, there are any rights, options,
warrants or other instruments of any Person which is a party to such Business
Combination or Affiliate Merger outstanding which would eliminate or diminish
the benefits intended to be afforded by the Rights.
(c) In the event the nature of the organization of any Person shall
preclude or limit the acquisition of Common Shares of such Person upon exercise
of the Rights as required by Section 13(a) hereof as a result of a Business
Combination, it shall be a condition to such Business Combination that such
Person shall take such steps (including, but not limited to, a reorganization)
as may be necessary to assure that the benefits intended to be derived under
Section 13 hereof upon the exercise of the Rights are assured to the holders
thereof.
SECTION 15. Fractional Rights and Fractional Shares. (a) The Company shall
not be required to issue fractions of Rights or to distribute Right Certificates
which evidence fractional Rights. In lieu of such fractional Rights, there shall
be paid to the registered holders of the Right Certificates with regard to which
such fractional Rights would otherwise be issuable, an amount in cash equal to
the same fraction of the current market value of a whole Right. For the purposes
of this Section 15(a), the current market value of a whole Right shall be the
closing price of the Rights for the Trading Day immediately prior to the date on
which such fractional Rights would have been otherwise issuable. The closing
price for any day shall be the last sale price, regular way, or, in case no such
sale takes place on such day, the average of the closing bid and asked prices,
regular way, in either case as reported in the principal consolidated
transaction reporting system with respect to Rights listed or admitted to
trading on a national securities exchange or, if the Rights are not listed or
admitted to trading on any national securities exchange, the last quoted price
or, if not so quoted, the average of the high bid and low asked prices in the
over-the-counter market, as reported by NASDAQ or such other system then in use
or, if on any such date the Rights are not quoted by any such organization, the
average of the closing bid and asked prices as furnished by a professional
market maker making a market in the Rights selected by the Board of Directors of
the Company. If on any such date no such market maker is making a market in the
Rights, the fair value of the Rights on such date as determined in good faith by
the Board of Directors of the Company shall be used.
(b) The Company may, but shall not be required to, issue fractions of
shares upon exercise of the Rights or to distribute certificates which evidence
fractional shares. In lieu of fractional shares, the Company may elect to (i)
utilize a depository arrangement as provided by the terms of the Preferred
Shares or (ii) in the case of a fraction of a share other than one
one-thousandth (1/1000th) of a share or any integral multiple thereof, pay to
the registered holders of Right Certificates at the time such Rights are
exercised as herein provided an amount in cash equal to the same fraction of the
current market value of one Preferred Share, if any are outstanding and publicly
traded (or the current market value of
17
one Common Share in the event that the Preferred Shares are not outstanding and
publicly traded). For purposes of this Section 15(b), the current market value
of a Preferred Share (or Common Share) shall be the closing price of a Preferred
Share (or Common Share) (as determined pursuant to the second sentence of
Section 1(u) of this Rights Agreement) for the Trading Day immediately prior to
the date of such exercise.
(c) The holder of a Right by the acceptance of the Rights expressly waives
his right to receive any fractional Rights or any fractional shares upon
exercise of a Right.
SECTION 16. Rights of Action. (a) All rights of action in respect of this
Rights Agreement are vested in the respective registered holders of the Right
Certificates (and, prior to the Distribution Date, the registered holders of the
Common Shares); and any registered holder of any Right Certificate (or, prior to
the Distribution Date, of the Common Shares), without the consent of the Rights
Agent or of the holder of any other Right Certificate (or, prior to the
Distribution Date, of the Common Shares), 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 Right Certificate in the manner provided
in such Right Certificate and in this Rights 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 Rights Agreement and shall be entitled to specific
performance of the obligations of any Person under, and injunctive relief
against actual or threatened violations of the obligations of any Person subject
to, this Rights Agreement.
(b) Any holder of Rights who prevails in an action to enforce the
provisions of this Rights Agreement shall be entitled to recover the reasonable
costs and expenses, including attorneys' fees, incurred in such action.
SECTION 17. Transfer and Ownership of Rights and Right Certificate. (a)
Prior to the Distribution Date, the Rights will be transferable only in
connection with the transfer of the Common Shares.
(b) After the Distribution Date, the Right Certificates will be
transferable, subject to Section 7(e) hereof, only on the registry books of the
Rights Agent if surrendered at the principal office of the Rights Agent, duly
endorsed or accompanied by a proper instrument of transfer.
(c) The Company and the Rights Agent may deem and treat the Person in whose
name a Right Certificate (or, prior to the Distribution Date, the associated
Common Shares certificate) is registered as the absolute owner thereof and of
the Rights evidenced thereby (notwithstanding any notations of ownership or
writing on the Right Certificates or the associated certificate for Common
Shares made by anyone other than the Company or the Rights Agent) for all
purposes whatsoever, and neither the Company nor the Rights Agent shall be
affected by any notice to the contrary.
SECTION 18. Right Certificate Holder Not Deemed a Shareholder. No holder,
as such, of any Right Certificate shall be entitled to vote or receive dividends
or be deemed, for any purpose, the holder of the Preferred Shares or of 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 Right Certificate be construed to confer upon the holder of any Right
Certificate, as such, any of the rights of a shareholder of the Company,
including, without limitation, any right to vote for the election of directors
or upon any matter submitted to shareholders at any meeting thereof, or to give
or withhold consent to any corporate action, or to receive notice of meetings or
other actions affecting shareholders (except as provided in Section 25 hereof),
or to receive dividends or other distributions or subscription rights, or
otherwise, until the Right or Rights evidenced by such Right Certificate shall
have been exercised in accordance with the provisions hereof.
SECTION 19. Concerning the Rights Agent. (a) The Company agrees to pay to
the Rights Agent reasonable compensation for all services rendered by it
hereunder and from time to time, on demand of the Rights Agent, its reasonable
expenses and counsel fees and other disbursements incurred in the administration
and execution of this Rights Agreement and the exercise and performance of its
duties hereunder. The Company also agrees to indemnify the Rights Agent for, and
to hold it harmless against, any loss, liability, or expense, incurred without
gross negligence, bad faith or wilful misconduct on the part of the Rights
Agent, for anything done or omitted by the Rights Agent in connection with the
18
acceptance and administration of this Rights Agreement, including the costs and
expenses of defending against any claim of liability arising therefrom, directly
or indirectly.
(b) The Rights Agent shall be protected and shall incur no liability for or
in respect of any action taken, suffered or omitted by it in connection with its
administration of this Rights Agreement in reliance upon any Right Certificate
or certificate for the Common Shares 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 20. Merger or Consolidation or Change of Rights Agent. (a) Any
corporation into which the Rights Agent or any successor Rights Agent may be
merged or with which it may be consolidated, or any corporation resulting from
any merger or consolidation to which the Rights Agent or any successor Rights
Agent shall be a party, or any corporation succeeding to the stock transfer or
corporate trust business of the Rights Agent or any successor Rights Agent,
shall be the successor to the Rights Agent under this Rights Agreement without
the execution or filing of any paper or any further act on the part of any of
the parties hereto, provided that such corporation would be eligible for
appointment as a successor Rights Agent under the provisions of Section 22
hereof. In case, at the time such successor Rights Agent shall succeed to the
agency created by this Rights Agreement, any of the Right Certificates shall
have been countersigned but not delivered, any such successor Rights Agent may
adopt the countersignature of the predecessor Rights Agent and deliver such
Right Certificates so countersigned; and in case at that time any of the Right
Certificates shall not have been countersigned, any successor Rights Agent may
countersign such Right Certificates either in the name of the predecessor Rights
Agent or in the name of the successor Rights Agent; and in all such cases such
Right Certificates shall have the full force provided in the Right Certificates
and in this Rights Agreement.
(b) In case at any time the name of the Rights Agent shall be changed and
at such time any of the Right Certificates shall have been countersigned but not
delivered, the Rights Agent may adopt the countersignature under its prior name
and deliver Right Certificates so countersigned; and in case at that time any of
the Right Certificates shall not have been countersigned, the Rights Agent may
countersign such Right Certificates either in its prior name or in its changed
name; and in all such cases such Right Certificates shall have the full force
provided in the Right Certificates and in this Rights Agreement.
SECTION 21. Duties of Rights Agent. The Rights Agent undertakes the duties
and obligations imposed by this Rights Agreement upon the following terms and
conditions, by all of which the Company and the holders of Right Certificates,
by their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel (who may be legal
counsel for the Company), and the opinion of such counsel shall be full and
complete authorization and protection to the Rights Agent as to any action
taken or omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Rights
Agreement the Rights Agent shall deem it necessary or desirable that any
fact or matter (including, without limitation, the identity of any
Acquiring Person) be proved or established by the Company prior to taking
or suffering any action hereunder, such fact or matter (unless other
evidence in respect thereof be herein specifically prescribed) may be
deemed to be conclusively proved and established by a certificate signed by
any one of the Chairman of the Board, the President, the Chief Financial
Officer, a Vice President, the Treasurer or the 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 Rights Agreement in reliance upon
such certificate.
(c) The Rights Agent shall be liable hereunder only for its own gross
negligence, bad faith or wilful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of
the statements of fact or recitals contained in this Rights Agreement or in
the Right Certificates (except as to its
19
countersignature thereof) or be required to verify the same, but all such
statements and recitals are and shall be deemed to have been made by the
Company only.
(e) The Rights Agent shall not be under any responsibility in respect
of the validity of this Rights Agreement or the execution and delivery
hereof (except the due execution hereof by the Rights Agent) or in respect
of the validity or execution of any Right Certificate (except its
countersignature thereof); nor shall it be responsible for any breach by
the Company of any covenant or condition contained in this Rights Agreement
or in any Right Certificate; nor shall it be responsible for any adjustment
required under the provisions of Section 11 or 13 hereof or responsible for
the manner, method or amount of any such adjustment or the ascertaining of
the existence of facts that would require any such adjustment (except with
respect to the exercise of Rights evidenced by Right Certificates after
actual notice of any such adjustment); nor shall it by any act hereunder be
deemed to make any representation or warranty as to the authorization or
reservation of any Preferred Shares or Common Shares to be issued pursuant
to this Rights Agreement or any Right Certificate or as to whether any
Preferred Shares or Common Shares will, when so issued, be validly
authorized and issued, fully paid and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged and delivered all
such further and other acts, instruments and assurances as may reasonably
be required by the Rights Agent for the carrying out or performing by the
Rights Agent of the provisions of this Rights Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from
any one of the Chairman of the Board, the President, any Vice President,
the Secretary or the Treasurer of the Company, and to apply to such
officers for advice or instructions in connection with its duties and it
shall not be liable for any action taken or suffered to be taken by it in
good faith in accordance with instructions of any such officer.
(h) The Rights Agent and any shareholder, director, officer or
employee of the Rights Agent may buy, sell or deal in any of the Rights or
other securities of the Company or become pecuniarily interested in any
transaction in which the Company may be interested, or contract with or
lend money to the Company or otherwise act as fully and freely as though it
were not the Rights Agent under this Rights Agreement. Nothing herein shall
preclude the Rights Agent from acting in any other capacity for the Company
or for any other legal entity.
(i) The Rights Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either itself or
by or through its attorneys or agents, and the Rights Agent shall not be
answerable or accountable for any act, default, neglect or misconduct of
any such attorneys or agents or for any loss to the Company resulting from
any such act, default, neglect or misconduct provided reasonable care was
exercised in the selection and continued employment thereof.
(j) ANYTHING IN THIS AGREEMENT TO THE CONTRARY NOTWITHSTANDING, IN NO
EVENT SHALL THE RIGHTS AGENT BE LIABLE FOR SPECIAL, INDIRECT OR
CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND WHATSOEVER (INCLUDING, BUT NOT
LIMITED TO, LOST PROFITS), EVEN IF THE RIGHTS AGENT HAS BEEN ADVISED OF THE
LIKELIHOOD OF SUCH LOSS OR DAMAGE AND REGARDLESS OF THE FORM OF ACTION.
SECTION 22. Change of Rights Agent. The Rights Agent or any successor
Rights Agent may resign and be discharged from its duties under this Rights
Agreement upon 30 days' notice in writing mailed to the Company and to each
transfer agent of the Common Shares and the Preferred Shares by registered or
certified mail, and to the holders of the Right Certificates by first-class
mail. The Company may remove the Rights Agent or any successor Rights Agent upon
30 days' notice in writing, mailed to the Rights Agent or successor Rights
Agent, as the case may be, and to each transfer agent of the Common Shares and
the Preferred Shares by registered or certified mail, and to the holders of the
Right Certificates by first-class mail. If the Rights Agent shall resign or be
removed or shall otherwise become incapable of acting, the Company shall appoint
a successor to the Rights Agent. If the Company shall fail to make such
appointment within a period of 30 days after giving notice of such removal or
after it
20
has been notified in writing of such resignation or incapacity by the resigning
or incapacitated Rights Agent or by the holder of a Right Certificate (who
shall, with such notice, submit his Right Certificate for inspection by the
Company), then the registered holder of any Right Certificate may apply to any
court of competent jurisdiction for the appointment of a new Rights Agent. Any
successor Rights Agent, whether appointed by the Company or by such a court,
shall be a corporation 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
so long as such corporation is authorized to conduct a stock transfer or
corporate trust business in the State of New York), in good standing, having a
principal office in the State of New York, which is authorized under such laws
to exercise stock transfer or corporate trust powers and is subject to
supervision or examination by Federal or state authority and which has at the
time of its appointment as Rights Agent a combined capital and surplus of at
least $50,000,000. 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 Shares and the Preferred Shares, and mail a notice thereof in writing
to the registered holders of the Right Certificates. Failure to give any notice
provided for in this Section 22, 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 23. Issuance of New Right Certificates. Notwithstanding any of the
provisions of this Rights Agreement or of the Rights to the contrary, the
Company may, at its option, issue new Right Certificates evidencing Rights in
such form as may be approved by its Board of Directors to reflect any adjustment
or change made in accordance with the provisions of this Rights Agreement. In
addition, in connection with the issuance or sale of Common Shares following the
Distribution Date and prior to the earlier of the Redemption Date or the
Expiration Date, the Company (a) shall, with respect to Common Shares so issued
or sold pursuant to the exercise of stock options or under any employee plan or
arrangement, or upon the exercise, conversion or exchange of securities, notes
or debentures issued by the Company, and (b) may, in any other case, if deemed
necessary or appropriate by the Board of Directors of the Company, issue Right
Certificates representing the appropriate number of Rights in connection with
such issuance or sale; provided, however, that (i) no such Right Certificate
shall be issued if, and to the extent that, the Company shall be advised by
counsel that such issuance would create a significant risk of material adverse
tax consequences to the Company or the Person to whom such Right Certificate
would be issued, and (ii) no such Right Certificate shall be issued if, and to
the extent that, appropriate adjustment shall otherwise have been made in lieu
of the issuance thereof.
SECTION 24. Redemption and Termination. (a) The Board of Directors of the
Company may, at its option, at any time prior to the earliest of (i) the Close
of Business on the tenth calendar day following the Share Acquisition Date, (ii)
the occurrence of a Triggering Event or (iii) the Expiration Date, order the
redemption of all, but not less than all, the then outstanding Rights at a
Redemption Price of $.01 per Right (which may, in the discretion of the Board of
Directors of the Company, in lieu of cash be paid with securities deemed by the
Board of Directors, in the exercise of its sole discretion, to be equivalent in
value thereto); provided, however, that immediately upon and after the date that
an Acquiring Person becomes an Acquiring Person, the Rights may be redeemed only
if the Board of Directors of the Company, with the concurrence of a majority of
the Disinterested Directors then in office, determines that such redemption is,
in their judgment, in the best interests of the Company and its shareholders.
(b) Immediately upon the action of the Board of Directors of the Company
ordering the redemption of the Rights, and without any further action and
without any notice, the right to exercise the Rights will terminate and the only
right thereafter of the holders of Rights shall be to receive the Redemption
Price. Within ten calendar days after the action of the Board of Directors of
the Company ordering the redemption of the Rights, the Company shall give notice
of such redemption to the holders of the then outstanding Rights by mailing such
notice to all such holders at their last addresses as they appear upon the
registry books of the Rights Agent or, prior to the Distribution Date, on the
registry
21
books of the transfer agent for the Common Shares. Each such notice of
redemption will state the method by which the payment of the Redemption Price
will be made. The notice, if mailed in the manner herein provided, shall be
conclusively presumed to have been duly given, whether or not the holder of
Rights receives such notice. In any case, failure to give such notice by mail,
or any defect in the notice, to any particular holder of Rights shall not affect
the sufficiency of the notice to other holders of Rights.
SECTION 25. Notice of Certain Events. (a) In case the Company shall propose
(i) to take any action of the type described in paragraph (a), (b), (c) or (d)
of Section 11 hereof that would require an adjustment thereunder, (ii) to effect
any Business Combination or (iii) to effect the liquidation, dissolution or
winding up of the Company, then, in such case, the Company shall give to each
holder of a Rights Certificate, in accordance with Section 26 hereof, a notice
of such proposed action, which shall specify any record date for the purposes of
determining any participation therein by the holders of the Preferred Shares, or
the date on which such action is to take place and the date of any participation
therein by the holders of the Preferred Shares, if any such date is to be fixed,
and such notice shall be so given at least 20 days prior to any such record
date, the taking of such action or the date of participation therein by the
holders of the Preferred Shares, whichever shall be the earliest.
(b) In case an Affiliate Merger or Triggering Event shall occur, then, in
any such case, the Company shall as soon as practicable thereafter give to each
holder of a Right Certificate, in accordance with Section 26 hereof, a notice of
the occurrence of such Affiliate Merger or Triggering Event, which shall specify
the Affiliate Merger and the Triggering Event and the consequences of such
Affiliate Merger or Triggering Event to holders of Rights under Section 11(e)
hereof.
SECTION 26. Notices. Notices or demands authorized by this Agreement to be
given or made by the Rights Agent or by the holder of any Right Certificate to
or on the Company shall be sufficiently given or made if sent by first-class
mail, postage prepaid, addressed (until another address is filed in writing with
the Rights Agent) as follows:
The Pittston Company
P.O. Box 120070
000 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Attention: Secretary
Subject to the provisions of Section 22 hereof, any notice or demand authorized
by this Rights Agreement to be given or made by the Company or by the holder of
any Right Certificate to or on the Rights Agent shall be sufficiently given or
made if sent by first-class mail, postage prepaid, addressed (until another
address is filed in writing with the Company) as follows:
Chemical Bank
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, X.X. 00000-0000
Attention: Xx. Xxxxx Xxxxxx
Notices or demands authorized by this Rights Agreement to be given or made by
the Company or the Rights Agent to any holder of a Right Certificate 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 Rights Agent or, prior to the Distribution Date, on the registry
books of the transfer agent for the Common Shares.
SECTION 27. Supplements and Amendments. At any time prior to the
Distribution Date and subject to the last sentence of this Section 27, the
Company and the Rights Agent shall, if the Company so directs, supplement or
amend any provision of this Rights Agreement (including, without limitation, the
date on which the Distribution Date shall occur) without the approval of any
holder of the Rights. From and after the Distribution Date and subject to
applicable law, the Company and the Rights Agent shall, if the Company so
directs, amend this Rights Agreement without the approval of any holders of
Right Certificates (i) to cure any ambiguity or to correct or supplement any
provision contained herein which may be defective or inconsistent with any other
provision of this Rights Agreement, or (ii) to make any
22
other provisions in regard to matters or questions arising hereunder which the
Company may deem necessary or desirable and which shall not adversely affect the
interests of the holders of Right Certificates (other than an Acquiring Person
or an Affiliate or Associate of an Acquiring Person). Upon the delivery of a
certificate from an appropriate officer of the Company which states that a
proposed supplement or amendment to this Rights Agreement is in compliance with
the provisions of this Section 27, the Rights Agent shall execute such
supplement or amendment. Notwithstanding anything contained in this Rights
Agreement to the contrary, (1) at any time when there shall be an Acquiring
Person, this Rights Agreement may be supplemented or amended only if the Board
of Directors of the Company, with the concurrence of a majority of the
Disinterested Directors then in office, determines that such supplement or
amendment is in their judgment in the best interests of the Company and its
shareholders and (2) no supplement or amendment to this Rights Agreement shall
be made which reduces the Redemption Price or provides for an earlier Expiration
Date.
SECTION 28. Successors. All the covenants and provisions of this Rights
Agreement by or for the benefit of the Company or the Rights Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder.
SECTION 29. Benefits of This Rights Agreement; Determinations and Actions
by the Board of Directors, etc. (a) Nothing in this Rights Agreement shall be
construed to give to any persons or corporation other than the Company, the
Rights Agent and the registered holders of the Right Certificates (and, prior to
the Distribution Date, the Common Shares) any legal or equitable right, remedy
or claim under this Rights Agreement; but this Rights Agreement shall be for the
sole and exclusive benefit of the Company, the Rights Agent and the registered
holders of the Right Certificates (and, prior to the Distribution Date, the
Common Shares).
(b) The Board of Directors of the Company (with, where specifically
provided for herein, the concurrence of a majority of the Disinterested
Directors then in office) shall have the exclusive power and authority to
administer this Rights Agreement and to exercise all rights and power
specifically granted to the Board of Directors of the Company (with, where
specifically provided for herein, the concurrence of a majority of the
Disinterested Directors then in office) or to the Company, or as may be
necessary or advisable in the administration of this Rights Agreement,
including, without limitation, the right and power to (i) interpret the
provisions of this Rights Agreement, and (ii) make all determinations deemed
necessary or advisable for the administration of this Rights Agreement
(including, without limitation, a determination to redeem or not redeem the
Rights or to amend this Rights Agreement and a determination of whether a
Triggering Event has occurred). 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 of Directors
of the Company (with, where specifically provided for herein, the concurrence of
a majority of the Disinterested Directors then in office) 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 of
Directors of the Company or the Disinterested Directors to any liability to the
holders of the Rights.
SECTION 30. Severability. If any term, provision, covenant or restriction
of this Rights Agreement is held by a court of competent jurisdiction or other
authority to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Rights Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.
SECTION 31. Governing Law. This Rights Agreement and each Right Certificate
issued hereunder shall be deemed to be a contract made under the laws of the
Commonwealth of Virginia and for all purposes shall be governed by and construed
in accordance with the laws of such Commonwealth applicable to contracts to be
made and performed entirely within such Commonwealth; provided, however,that the
provisions of Sections 19, 20, 21 and 22 of this Rights Agreement shall be
governed by and construed in accordance with the laws of the State of New York.
SECTION 32. Counterparts. This Rights Agreement may be executed in any
number of counterparts and each of such counterparts shall for all purposes be
deemed to be an original, and all such counterparts shall together constitute
but one and the same instrument.
23
SECTION 33. Descriptive Headings. Descriptive headings of the several
Sections of this Rights Agreement are inserted for convenience only and shall
not control or affect the meaning or construction of any of the provisions of
this Rights Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Rights Agreement to
be duly executed and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
THE PITTSTON COMPANY,
by ..................................
Name:
Title:
Attest:
by ..................................
Name:
Title:
CHEMICAL BANK, as Rights Agent,
by ..................................
Name:
Title:
Attest:
by ..................................
Name:
Title:
24
EXHIBIT A
ARTICLES OF AMENDMENT
TO THE RESTATED ARTICLES OF INCORPORATION
OF THE PITTSTON COMPANY
SETTING FORTH THE POWERS, PREFERENCES,
RIGHTS, QUALIFICATIONS, LIMITATIONS AND
RESTRICTIONS OF THE COMPANY'S SERIES A
PARTICIPATING CUMULATIVE PREFERRED STOCK
SERIES B PARTICIPATING CUMULATIVE PREFERRED STOCK,
SERIES C PARTICIPATING CUMULATIVE PREFERRED STOCK
Pursuant to Section 13.1-639 of the Virginia Stock Corporation Act, The
Pittston Company (the 'Corporation'), a corporation organized and existing under
the Virginia Stock Corporation Act, in accordance with Section 13.1-604 thereof,
DOES HEREBY CERTIFY:
That pursuant to the authority conferred upon the Board of Directors of the
Corporation by the first paragraph under Division II of Article III of the
Restated Articles of Incorporation, as amended, of the Company (the 'Articles of
Incorporation'), the Board of Directors of the Corporation on December [xx],
1995, duly adopted the following resolution creating, effective as of December
[xx+1], 1995, three series of Preferred Stock designated as Series A
Participating Cumulative Preferred Stock, Series B Participating Cumulative
Preferred Stock and Series D Participating Cumulative Preferred Stock:
RESOLVED that pursuant to the authority vested in the Board of Directors of
the Corporation, Article III of the Restated Articles of Incorporation of the
Corporation be, and it hereby is, amended to provide the preferences,
limitations and relative rights of two series of Preferred Stock of the
Corporation, which amendment shall be accomplished by deleting the text after
the first paragraph under Division II of Article III of the Restated Articles of
Incorporation and adding the following text after the first paragraph under
Division II of Article III of the Restated Articles of Incorporation:
'TERMS OF THE PREFERRED STOCK ARE AS FOLLOWS:
A. SERIES A PARTICIPATING CUMULATIVE PREFERRED STOCK
1. Designation and Number of Shares. The shares of such series shall be
designated as 'Series A Participating Cumulative Preferred Stock' (the 'Series A
Preferred Stock'). The number of shares initially constituting the Series A
Preferred Stock shall be 50,000; provided, however, that if more than a total of
50,000 shares of Series A Preferred Stock shall be issuable upon the exercise of
Pittston Brink's Group Rights issued pursuant to the Amended and Restated Rights
Agreement dated as of December [xx], 1995, between the Corporation and Chemical
Bank, as Rights Agent (the 'Rights Agreement'), the Board of Directors of the
Corporation, pursuant to Section 13.1-639 of the Virginia Stock Corporation Act,
shall direct by resolution or resolutions that articles of amendment to these
Articles of Incorporation be properly executed, acknowledged, filed and
recorded, in accordance with the provisions of Section 13.1-604 thereof,
providing for the total number of shares of Series A Preferred Stock authorized
to be issued to be increased (to the extent that the Articles of Incorporation
then permit) to the largest number of whole shares (rounded up to the nearest
whole number) issuable upon exercise of such Rights.
2. Dividends or Distributions. (a) Subject to the prior and superior rights
of the holders of shares of any other series of Preferred Stock or other class
of capital stock not by its terms ranking on a parity with, or junior to, the
shares of Series A Preferred Stock with respect to dividends, the holders of
shares of the Series A Preferred Stock shall be entitled to receive, when and as
declared by the Board of Directors, out of the assets of the Corporation legally
available therefor, (1) quarterly dividends payable in cash on the first day of
March, June, September and December in each year (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 a
fraction of a share of Series A Preferred Stock, of $10.00 per whole share
(rounded to the nearest cent) less the amount of all cash dividends declared on
the Series A Preferred Stock pursuant to the following clause (2) since the
immediately
1
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 Preferred Stock, and (2) dividends payable in
cash on the payment date for each cash dividend declared on Brink's Stock in an
amount per whole share (rounded to the nearest cent) equal to the Brink's
Formula Number (as defined below) then in effect times the cash dividends then
to be paid on each share of Brink's Stock. In addition, if the Corporation shall
pay any dividend or make any distribution on Brink's Stock payable in assets,
securities or other forms of noncash consideration (other than dividends or
distributions solely in shares of Brink's Stock), then, in each such case, the
Corporation shall simultaneously pay or make on each outstanding share of Series
A Preferred Stock a dividend or distribution in like kind of the Brink's Formula
Number then in effect times such dividend or distribution on each share of
Brink's Stock. As used herein, the 'Brink's Formula Number' shall be 1000;
provided, however, that if at any time after December [xx], 1995, the
Corporation shall (x) declare or pay any dividend on Brink's Stock payable in
shares of Brink's Stock or make any distribution on Brink's Stock in shares of
Brink's Stock, (y) subdivide (by a stock split or otherwise) the outstanding
shares of Brink's Stock into a larger number of shares of Brink's Stock or (z)
combine (by a reverse stock split or otherwise) the outstanding shares of
Brink's Stock into a smaller number of shares of Brink's Stock, then in each
such event the Brink's Formula Number shall be adjusted to a number determined
by multiplying the Brink's Formula Number in effect immediately prior to such
event by a fraction, the numerator of which is the number of shares of Brink's
Stock that are outstanding immediately after such event and the denominator of
which is the number of shares of Brink's Stock that are outstanding immediately
prior to such event (and rounding the result to the nearest whole number); and
provided further that if at any time after December [xx], 1995, the Corporation
shall issue any shares of its capital stock in a reclassification or change of
the outstanding shares of Brink's Stock (including any such reclassification or
change in connection with a merger in which the Corporation is the surviving
corporation), then in each such event the Brink's Formula Number shall be
appropriately adjusted to reflect such reclassification or change.
(b) The Corporation shall declare a dividend or distribution on the Series
A Preferred Stock as provided in Section 2(a) above immediately prior to or at
the same time it declares a dividend or distribution on Brink's Stock (other
than a dividend or distribution solely in shares of Brink's Stock); provided,
however, that, in the event no dividend or distribution (other than a dividend
or distribution in shares of Brink's Stock) shall have been declared on Brink's
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 Preferred Stock shall nevertheless be payable on such subsequent
Quarterly Dividend Payment Date. The Board of Directors may fix a record date
for the determination of holders of shares of Series A Preferred Stock entitled
to receive a dividend or distribution declared thereon, which record date shall
be the same as the record date for any corresponding dividend or distribution on
Brink's Stock.
(c) Dividends shall begin to accrue and be cumulative on outstanding shares
of Series A Preferred Stock from and after the Quarterly Dividend Payment Date
next preceding the date of original issue of such shares of Series A Preferred
Stock; provided, however, that dividends on such shares which are originally
issued after the record date for the determination of holders of shares of
Series A Preferred Stock entitled to receive a quarterly dividend and on or
prior to the next succeeding Quarterly Dividend Payment Date shall begin to
accrue and be cumulative from and after such Quarterly Dividend Payment Date.
Accrued but unpaid dividends shall not bear interest. Dividends paid on the
shares of Series A 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.
(d) So long as any shares of the Series A Preferred Stock are outstanding,
no dividends or other distributions shall be declared, paid or distributed, or
set aside for payment or distribution, on Brink's Stock unless, in each case,
the dividend required by this Section 2 to be declared on the Series A Preferred
Stock shall have been declared.
(e) The holders of the shares of Series A Preferred Stock shall not be
entitled to receive any dividends or other distributions except as provided
herein.
2
3. Voting Rights. The holders of shares of Series A Preferred Stock shall
have the following voting rights:
(a) Each holder of Series A Preferred Stock shall be entitled to a
number of votes equal to the product of (1) the Brink's Formula Number then
in effect for each share of Series A Preferred Stock held of record on each
matter on which holders of Brink's Stock are entitled to vote times (2) the
maximum number of votes which the holders of Brink's Stock then have with
respect to such matter.
(b) Except as otherwise provided herein or by applicable law, the
holders of shares of Series A Preferred Stock, the holders of shares of
Brink's Stock and the holders of any other class of capital stock entitled
to vote in the election of directors shall vote together as one class for
the election of directors of the Corporation. In addition, the holders of
Series A Preferred Stock and the holders of Brink's Stock shall vote
together as one class on all other matters submitted to a vote of holders
of Brink's Stock.
(c) If at the time of any annual meeting of shareholders for the
election of directors, the equivalent of six quarterly dividends (whether
or not consecutive) payable on any share or shares of Series A Preferred
Stock are in default, the number of directors constituting the Board of
Directors of the Corporation shall be increased by two. In addition to
voting together with other holders of capital stock as set forth in Section
3(a) for the election of other directors of the Corporation, the holders of
record of the Series A Preferred Stock, voting separately as a class to the
exclusion of such other holders, shall be entitled at said meeting of
shareholders (and at each subsequent annual meeting of shareholders),
unless all dividends in arrears have been paid or declared and set apart
for payment prior thereto, to vote for the election of two directors of the
Corporation, the holders of any Series A Preferred Stock being entitled to
cast a number of votes per share of Series A Preferred Stock equal to the
Brink's Formula Number. Until the default in payments of all dividends
which permitted the election of said directors shall cease to exist any
director who shall have been so elected pursuant to the next preceding
sentence may be removed at any time, either with or without cause, only by
the affirmative vote of the holders of the shares at the time entitled to
cast a majority of the votes entitled to be cast for the election of any
such director at a special meeting of such holders called for that purpose,
and any vacancy thereby created may be filled by the vote of such holders.
If and when such default shall cease to exist, the holders of the Series A
Preferred Stock shall be divested of the foregoing special voting rights,
subject to revesting in the event of each and every subsequent like default
in payments of dividends. Upon the termination of the foregoing special
voting rights, the terms of office of all persons who may have been elected
directors pursuant to said special voting rights shall forthwith terminate,
and the number of directors constituting the Board of Directors shall be
reduced by two. The voting rights granted by this Section 3(c) shall be in
addition to any other voting rights granted to the holders of the Series A
Preferred Stock in this Section 3.
(d) Except as provided herein, in Section 11 or by applicable law,
holders of Series A 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 Brink's Stock as set forth herein) for authorizing
or taking any corporate action.
4. Certain Restrictions. (a) Whenever quarterly dividends or other
dividends or distributions payable on the Series A 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
Preferred Stock outstanding shall have been paid in full, the Corporation shall
not:
(i) 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 Preferred Stock;
(ii) 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 Preferred Stock,
except dividends paid ratably on the Series A Preferred Stock and all such
parity
3
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;
(iii) 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 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 Preferred Stock; or
(iv) purchase or otherwise acquire for consideration any shares of
Series A Preferred Stock, or any shares of stock ranking on a parity with
the Series A 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 subparagraph (a) of this Section
4, purchase or otherwise acquire such shares at such time and in such manner.
5. Liquidation Rights. Upon the liquidation, dissolution or winding up of
the Corporation, whether voluntary or involuntary, no distribution shall be made
(a) to the holders of shares of stock ranking junior (either as to dividends or
upon liquidation, dissolution, or winding up) to the Series A Preferred Stock
unless, prior thereto, the holders of shares of Series A Preferred Stock shall
have received an amount equal to the accrued and unpaid dividends and
distributions thereon, whether or not declared, to the date of such payment,
plus an amount equal to the greater of (i) $40 per share or (ii) an aggregate
amount per share equal to the Formula Number then in effect times the aggregate
amount to be distributed per share to holders of Brink's Stock, or (b) to the
holders of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Preferred Stock,
except distributions made ratably on the Series A Preferred Stock and all other
such parity stock in proportion to the total amounts to which the holders of all
such shares are entitled upon such liquidation, dissolution or winding up.
6. Consolidation, Merger, etc. In case the Corporation shall enter into any
consolidation, merger, combination, statutory share exchange or other
transaction in which the shares of Brink's Stock are exchanged for or changed
into other stock or securities, cash or any other property, then in any such
case the then outstanding shares of Series A Preferred Stock shall at the same
time be similarly exchanged or changed in an amount per share equal to the
Brink's Formula Number then in effect times the aggregate amount of stock,
securities, cash or any other property (payable in kind), as the case may be,
into which or for which each share of Brink's Stock is exchanged or changed.
7. Redemption; No Sinking Fund. (a) The outstanding shares of Series A
Preferred Stock may be redeemed at the option of the Board of Directors as a
whole, but not in part, at any time at which, in the good faith determination of
the Board of Directors, no person beneficially owns more than 10% of the
aggregate voting power represented by all the outstanding shares of capital
stock of the Corporation generally entitled to vote in the election of Directors
of the Corporation, at a cash price per share equal to (i) 125% of the product
of the Formula Number times the Market Value (as such term is hereinafter
defined) of Brink's Stock, plus (ii) all dividends which on the redemption date
have accrued on the shares to be redeemed and have not been paid or declared and
a sum sufficient for the payment thereof set apart, without interest. The
'Market Value' on any date shall be deemed to be the average of the daily
closing prices, per share, of Brink's Stock for the 30 consecutive Trading Days
immediately prior to the date in question. The closing price for each Trading
Day shall be the last sale price, regular way, or, in case no such sale takes
place on such Trading Day, the average of the closing bid and asked prices,
regular way, in either case as reported in the principal consolidated
transaction reporting system if Brink's Stock is listed or admitted to trading
on a national securities exchange or, if Brink's Stock is not listed or admitted
to trading on any national securities exchange, the last quoted price or, if not
so
4
quoted, the average of the high bid and low asked prices in the over-the-counter
market, as reported by the National Association of Securities Dealers, Inc.
Automated Quotations System or such other system then in use, or, if on any such
Trading Day Brink's Stock is not quoted by any such organization, the average of
the closing bid and asked prices as furnished by a professional market maker
making a market in Brink's Stock selected by the Board of Directors of the
Corporation. If on any such Trading Day no market maker is making a market in
Brink's Stock, the fair value of Brink's Stock on such Trading Day shall mean
the fair value of Brink's Stock as determined in good faith by the Board of
Directors of the Corporation. 'Trading Day' shall mean a day on which the
principal national securities exchange on which Brink's Stock is listed or
admitted to trading is open for the transaction of business or, if Brink's Stock
is not listed or admitted to trading on any national securities exchange, a
Monday, Tuesday, Wednesday, Thursday or Friday which is not a day on which
banking institutions in the Borough of Manhattan, the City of New York, are
authorized or obligated by law or executive order to close.
(b) The shares of Series A Preferred Stock shall not be subject to or
entitled to the operation of a retirement or sinking fund.
8. Ranking. The Series A Preferred Stock shall rank senior to Brink's
Stock, Minerals Stock and Burlington Stock, on a parity with the Corporation's
Series B Participating Cumulative Preferred Stock, par value $10 per share, and
the Corporation's Series D Participating Cumulative Preferred Stock, par value
$10 per share, and junior to all other series of Preferred Stock of the
Corporation, unless the Board of Directors shall specifically determine
otherwise in fixing the powers, preferences and relative, participating,
optional and other special rights of the shares of such series and the
qualifications, limitations and restrictions thereof.
9. Fractional Shares. The Series A Preferred Stock shall be issuable upon
exercise of Pittston Brink's Group Rights issued pursuant to the Rights
Agreement in whole shares or in any fraction of a share that is not smaller than
one one-thousandth (1/1000th) of a share or any integral multiple of such
fraction. At the election of the Corporation, prior to the first issuance of a
share or a fraction of a share of Series A Preferred Stock, either (1)
certificates may be issued to evidence such authorized fraction of a share of
Series A Preferred Stock, or (2) any such authorized fraction of a share of
Series A Preferred Stock may be evidenced by depository receipts pursuant to an
appropriate agreement between the Corporation and a depository selected by the
Corporation; provided that such agreement shall provide that the holders of such
depository receipts shall have all the rights, privileges and preferences to
which they are entitled as beneficial owners of the Series A Preferred Stock.
10. Reacquired Shares. Any shares of Series A Preferred Stock purchased or
otherwise acquired by the Corporation in any manner whatsoever shall be retired
and canceled promptly after the acquisition thereof. All such shares shall upon
their cancelation become authorized but unissued shares of Preferred Stock,
without designation as to series until such shares are once more designated as
part of a particular series by the Board of Directors pursuant to the provisions
of the first paragraph of Division II of Article III.
11. Amendment. None of the powers, preferences and relative, participating,
optional and other special rights of the Series A Preferred Stock as provided
herein shall be amended in any manner which would alter or change the powers,
preferences, rights or privileges of the holders of Series A Preferred Stock so
as to affect them adversely without the affirmative vote of the holders of more
than 66 2/3% of the outstanding shares of Series A Preferred Stock, voting as a
separate class.
B. SERIES B PARTICIPATING CUMULATIVE PREFERRED STOCK
1. Designation and Number of Shares. The shares of such series shall be
designated as 'Series B Participating Cumulative Preferred Stock' (the 'Series B
Preferred Stock'). The number of shares initially constituting the Series B
Preferred Stock shall be 20,000; provided, however, that if more than a total of
20,000 shares of Series B Preferred Stock shall be issuable upon the exercise of
Pittston Minerals Group Rights issued pursuant to the Amended and Restated
Rights Agreement dated as of December [xx], 1995, between the Corporation and
Chemical Bank, as Rights Agent (the 'Rights Agreement'), the Board of Directors
of the Corporation, pursuant to Section 13.1-639 of the Virginia
5
Stock Corporation Act, shall direct by resolution or resolutions that articles
of amendment to these Articles of Incorporation be properly executed,
acknowledged, filed and recorded, in accordance with the provisions of Section
13.1-604 thereof, providing for the total number of shares of Series B Preferred
Stock authorized to be issued to be increased (to the extent that the Articles
of Incorporation then permit) to the largest number of whole shares (rounded up
to the nearest whole number) issuable upon exercise of such Rights.
2. Dividends or Distributions. (a) Subject to the prior and superior rights
of the holders of shares of any other series of Preferred Stock or other class
of capital stock not by its terms ranking on a parity with, or junior to, the
shares of Series B Preferred Stock with respect to dividends, the holders of
shares of the Series B Preferred Stock shall be entitled to receive, when and as
declared by the Board of Directors, out of the assets of the Corporation legally
available therefor, (1) quarterly dividends payable in cash on the first day of
March, June, September and December in each year (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 a
fraction of a share of Series B Preferred Stock, of $10.00 per whole share
(rounded to the nearest cent) less the amount of all cash dividends declared on
the Series B Preferred Stock pursuant to the following clause (2) 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 B Preferred Stock, and (2) dividends payable in
cash on the payment date for each cash dividend declared on Minerals Stock in an
amount per whole share (rounded to the nearest cent) equal to the Minerals
Formula Number (as defined below) then in effect times the cash dividends then
to be paid on each share of Minerals Stock. In addition, if the Corporation
shall pay any dividend or make any distribution on Minerals Stock payable in
assets, securities or other forms of noncash consideration (other than dividends
or distributions solely in shares of Minerals Stock), then, in each such case,
the Corporation shall simultaneously pay or make on each outstanding share of
Series B Preferred Stock a dividend or distribution in like kind of the Minerals
Formula Number then in effect times such dividend or distribution on each share
of Minerals Stock. As used herein, the 'Minerals Formula Number' shall be 1,000;
provided, however, that if at any time after December [xx], 1995, the
Corporation shall (x) declare or pay any dividend on Minerals Stock payable in
shares of Minerals Stock or make any distribution on Minerals Stock in shares of
Minerals Stock, (y) subdivide (by a stock split or otherwise) the outstanding
shares of Minerals Stock into a larger number of shares of Minerals Stock or (z)
combine (by a reverse stock split or otherwise) the outstanding shares of
Minerals Stock into a smaller number of shares of Minerals Stock, then in each
such event the Minerals Formula Number shall be adjusted to a number determined
by multiplying the Minerals Formula Number in effect immediately prior to such
event by a fraction, the numerator of which is the number of shares of Minerals
Stock that are outstanding immediately after such event and the denominator of
which is the number of shares of Minerals Stock that are outstanding immediately
prior to such event (and rounding the result to the nearest whole number); and
provided further that if at any time after December [xx], 1995, the Corporation
shall issue any shares of its capital stock in a reclassification or change of
the outstanding shares of Minerals Stock (including any such reclassification or
change in connection with a merger in which the Corporation is the surviving
corporation), then in each such event the Minerals Formula Number shall be
appropriately adjusted to reflect such reclassification or change.
(b) The Corporation shall declare a dividend or distribution on the Series
B Preferred Stock as provided in Section 2(a) above immediately prior to or at
the same time it declares a dividend or distribution on Minerals Stock (other
than a dividend or distribution solely in shares of Minerals Stock); provided,
however, that, in the event no dividend or distribution (other than a dividend
or distribution in shares of Minerals Stock) shall have been declared on
Minerals Stock during the period between any Quarterly Dividend Payment Date and
the next subsequent Quarterly Dividend Payment Date, a dividend of $2.00 per
share on the Series B Preferred Stock shall nevertheless be payable on such
subsequent Quarterly Dividend Payment Date. The Board of Directors may fix a
record date for the determination of holders of shares of Series B Preferred
Stock entitled to receive a dividend or distribution declared thereon, which
record date shall be the same as the record date for any corresponding dividend
or distribution on Minerals Stock.
6
(c) Dividends shall begin to accrue and be cumulative on outstanding shares
of Series B Preferred Stock from and after the Quarterly Dividend Payment Date
next preceding the date of original issue of such shares of Series B Preferred
Stock; provided, however, that dividends on such shares which are originally
issued after the record date for the determination of holders of shares of
Series B Preferred Stock entitled to receive a quarterly dividend and on or
prior to the next succeeding Quarterly Dividend Payment Date shall begin to
accrue and be cumulative from and after such Quarterly Dividend Payment Date.
Accrued but unpaid dividends shall not bear interest. Dividends paid on the
shares of Series B 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.
(d) So long as any shares of the Series B Preferred Stock are outstanding,
no dividends or other distributions shall be declared, paid or distributed, or
set aside for payment or distribution, on Minerals Stock unless, in each case,
the dividend required by this Section 2 to be declared on the Series B Preferred
Stock shall have been declared.
(e) The holders of the shares of Series B Preferred Stock shall not be
entitled to receive any dividends or other distributions except as provided
herein.
3. Voting Rights. The holders of shares of Series B Preferred Stock shall
have the following voting rights:
(a) Each holder of Series B Preferred Stock shall be entitled to a
number of votes equal to the product of (1) the Minerals Formula Number
then in effect for each share of Series A Preferred Stock held of record on
each matter on which holders of Minerals Stock are entitled to vote times
(2) the maximum number of votes which the holders of Minerals Stock then
have with respect to such matter.
(b) Except as otherwise provided herein or by applicable law, the
holders of shares of Series B Preferred Stock, the holders of shares of
Minerals Stock and the holders of any other class of capital stock entitled
to vote in the election of directors shall vote together as one class for
the election of directors of the Corporation. In addition, the holders of
Series B Preferred Stock and the holders of Minerals Stock shall vote
together as one class on all other matters submitted to a vote of holders
of Minerals Stock.
(c) If at the time of any annual meeting of shareholders for the
election of directors, the equivalent of six quarterly dividends (whether
or not consecutive) payable on any share or shares of Series B Preferred
Stock are in default, the number of directors constituting the Board of
Directors of the Corporation shall be increased by two. In addition to
voting together with other holders of capital stock as set forth in Section
3(a) for the election of other directors of the Corporation, the holders of
record of the Series B Preferred Stock, voting separately as a class to the
exclusion of such other holders, shall be entitled at said meeting of
shareholders (and at each subsequent annual meeting of shareholders),
unless all dividends in arrears have been paid or declared and set apart
for payment prior thereto, to vote for the election of two directors of the
Corporation, the holders of any Series B Preferred Stock being entitled to
cast a number of votes per share of Series B Preferred Stock equal to the
Minerals Formula Number. Until the default in payments of all dividends
which permitted the election of said directors shall cease to exist any
director who shall have been so elected pursuant to the next preceding
sentence may be removed at any time, either with or without cause, only by
the affirmative vote of the holders of the shares at the time entitled to
cast a majority of the votes entitled to be cast for the election of any
such director at a special meeting of such holders called for that purpose,
and any vacancy thereby created may be filled by the vote of such holders.
If and when such default shall cease to exist, the holders of the Series B
Preferred Stock shall be divested of the foregoing special voting rights,
subject to revesting in the event of each and every subsequent like default
in payments of dividends. Upon the termination of the foregoing special
voting rights, the terms of office of all persons who may have been elected
directors pursuant to said special voting rights shall forthwith terminate,
and the number of directors constituting the Board of Directors shall be
reduced by two. The voting rights granted by this Section 3(c) shall be in
addition to any other voting rights granted to the holders of the Series B
Preferred Stock in this Section 3.
7
(d) Except as provided herein, in Section 11 or by applicable law,
holders of Series B 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 Minerals Stock as set forth herein) for authorizing
or taking any corporate action.
4. Certain Restrictions. (a) Whenever quarterly dividends or other
dividends or distributions payable on the Series B 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 B
Preferred Stock outstanding shall have been paid in full, the Corporation shall
not:
(i) 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 B Preferred Stock;
(ii) 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 B Preferred Stock,
except dividends paid ratably on the Series B 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;
(iii) 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 B 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 B Preferred Stock; or
(iv) purchase or otherwise acquire for consideration any shares of
Series B Preferred Stock, or any shares of stock ranking on a parity with
the Series B 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 subparagraph (a) of this Section
4, purchase or otherwise acquire such shares at such time and in such manner.
5. Liquidation Rights. Upon the liquidation, dissolution or winding up of
the Corporation, whether voluntary or involuntary, no distribution shall be made
(a) to the holders of shares of stock ranking junior (either as to dividends or
upon liquidation, dissolution, or winding up) to the Series B Preferred Stock
unless, prior thereto, the holders of shares of Series B Preferred Stock shall
have received an amount equal to the accrued and unpaid dividends and
distributions thereon, whether or not declared, to the date of such payment,
plus an amount equal to the greater of (i) $40 per share or (ii) an aggregate
amount per share equal to the Minerals Formula Number then in effect times the
aggregate amount to be distributed per share to holders of Minerals Stock, or
(b) to the holders of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series B Preferred Stock,
except distributions made ratably on the Series B Preferred Stock and all other
such parity stock in proportion to the total amounts to which the holders of all
such shares are entitled upon such liquidation, dissolution or winding up.
6. Consolidation, Merger, etc. In case the Corporation shall enter into any
consolidation, merger, combination, statutory share exchange or other
transaction in which the shares of Minerals Stock are exchanged for or changed
into other stock or securities, cash or any other property, then in any such
case the then outstanding shares of Series B Preferred Stock shall at the same
time be similarly exchanged or changed in an amount per share equal to the
Minerals Formula Number then in effect times the aggregate amount of stock,
securities, cash or any other property (payable in kind), as the case may be,
into which or for which each share of Minerals Stock is exchanged or changed.
8
7. Redemption; No Sinking Fund. (a) The outstanding shares of Series B
Preferred Stock may be redeemed at the option of the Board of Directors as a
whole, but not in part, at any time at which, in the good faith determination of
the Board of Directors, no person beneficially owns more than 10% of the
aggregate voting power represented by all the outstanding shares of capital
stock of the Corporation generally entitled to vote in the election of Directors
of the Corporation, at a cash price per share equal to (i) 125% of the product
of the Minerals Formula Number times the Market Value (as such term is
hereinafter defined) of Minerals Stock, plus (ii) all dividends which on the
redemption date have accrued on the shares to be redeemed and have not been paid
or declared and a sum sufficient for the payment thereof set apart, without
interest. The 'Market Value' on any date shall be deemed to be the average of
the daily closing prices, per share, of Minerals Stock for the 30 consecutive
Trading Days immediately prior to the date in question. The closing price for
each Trading Day shall be the last sale price, regular way, or, in case no such
sale takes place on such Trading Day, the average of the closing bid and asked
prices, regular way, in either case as reported in the principal consolidated
transaction reporting system if Minerals Stock is listed or admitted to trading
on a national securities exchange or, if Minerals Stock is not listed or
admitted to trading on any national securities exchange, the last quoted price
or, if not so quoted, the average of the high bid and low asked prices in the
over-the-counter market, as reported by the National Association of Securities
Dealers, Inc. Automated Quotations System or such other system then in use, or,
if on any such Trading Day Minerals Stock is not quoted by any such
organization, the average of the closing bid and asked prices as furnished by a
professional market maker making a market in Minerals Stock selected by the
Board of Directors of the Corporation. If on any such Trading Day no market
maker is making a market in Minerals Stock, the fair value of Minerals Stock on
such Trading Day shall mean the fair value of Minerals Stock as determined in
good faith by the Board of Directors of the Corporation. 'Trading Day' shall
mean a day on which the principal national securities exchange on which Minerals
Stock is listed or admitted to trading is open for the transaction of business
or, if Minerals Stock is not listed or admitted to trading on any national
securities exchange, a Monday, Tuesday, Wednesday, Thursday or Friday which is
not a day on which banking institutions in the Borough of Manhattan, the City of
New York, are authorized or obligated by law or executive order to close.
(b) The shares of Series B Preferred Stock shall not be subject to or
entitled to the operation of a retirement or sinking fund.
8. Ranking. The Series B Preferred Stock shall rank senior to Brink's
Stock, Minerals Stock and Burlington Stock, on a parity with the Corporation's
Series A Participating Cumulative Preferred Stock, par value $10 per share, and
the Corporation's Series D Participating Cumulative Preferred Stock, par value
$10 per share, and junior to all other series of Preferred Stock of the
Corporation, unless the Board of Directors shall specifically determine
otherwise in fixing the powers, preferences and relative, participating,
optional and other special rights of the shares of such series and the
qualifications, limitations and restrictions thereof.
9. Fractional Shares. The Series B Preferred Stock shall be issuable upon
exercise of Pittston Minerals Group Rights issued pursuant to the Rights
Agreement in whole shares or in any fraction of a share that is not smaller than
one one-thousandth (1/1000th) of a share or any integral multiple of such
fraction. At the election of the Corporation, prior to the first issuance of a
share or a fraction of a share of Series B Preferred Stock, either (1)
certificates may be issued to evidence such authorized fraction of a share of
Series B Preferred Stock, or (2) any such authorized fraction of a share of
Series B Preferred Stock may be evidenced by depository receipts pursuant to an
appropriate agreement between the Corporation and a depository selected by the
Corporation; provided that such agreement shall provide that the holders of such
depository receipts shall have all the rights, privileges and preferences to
which they are entitled as beneficial owners of the Series B Preferred Stock.
10. Reacquired Shares. Any shares of Series B Preferred Stock purchased or
otherwise acquired by the Corporation in any manner whatsoever shall be retired
and canceled promptly after the acquisition thereof. All such shares shall upon
their cancelation become authorized but unissued shares of Preferred Stock,
without designation as to series until such shares are once more designated as
part of a particular series by the Board of Directors pursuant to the provisions
of the first paragraph of Division II of Article III.
9
11. Amendment. None of the powers, preferences and relative, participating,
optional and other special rights of the Series B Preferred Stock as provided
herein shall be amended in any manner which would alter or change the powers,
preferences, rights or privileges of the holders of Series B Preferred Stock so
as to affect them adversely without the affirmative vote of the holders of more
than 66 2/3% of the outstanding shares of Series B Preferred Stock, voting as a
separate class.'
C. SERIES C PARTICIPATING CUMULATIVE PREFERRED STOCK
1. Designation and Number of Shares. The shares of such series shall be
designated as 'Series D Participating Cumulative Preferred Stock' (the 'Series D
Preferred Stock'). The number of shares initially constituting the Series D
Preferred Stock shall be 50,000; provided, however, that if more than a total of
50,000 shares of Series D Preferred Stock shall be issuable upon the exercise of
Pittston Burlington Group Rights issued pursuant to the Amended and Restated
Rights Agreement dated as of December [xx], 1995, between the Corporation and
Chemical Bank, as Rights Agent (the 'Rights Agreement'), the Board of Directors
of the Corporation, pursuant to Section 13.1-639 of the Virginia Stock
Corporation Act, shall direct by resolution or resolutions that articles of
amendment to these Articles of Incorporation be properly executed, acknowledged,
filed and recorded, in accordance with the provisions of Section 13.1-604
thereof, providing for the total number of shares of Series D Preferred Stock
authorized to be issued to be increased (to the extent that the Articles of
Incorporation then permit) to the largest number of whole shares (rounded up to
the nearest whole number) issuable upon exercise of such Rights.
2. Dividends or Distributions. (a) Subject to the prior and superior rights
of the holders of shares of any other series of Preferred Stock or other class
of capital stock not by its terms ranking on a parity with, or junior to, the
shares of Series D Preferred Stock with respect to dividends, the holders of
shares of the Series D Preferred Stock shall be entitled to receive, when and as
declared by the Board of Directors, out of the assets of the Corporation legally
available therefor, (1) quarterly dividends payable in cash on the first day of
March, June, September and December in each year (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 a
fraction of a share of Series D Preferred Stock, of $10.00 per whole share
(rounded to the nearest cent) less the amount of all cash dividends declared on
the Series D Preferred Stock pursuant to the following clause (2) 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 D Preferred Stock, and (2) dividends payable in
cash on the payment date for each cash dividend declared on Burlington Stock in
an amount per whole share (rounded to the nearest cent) equal to the Burlington
Formula Number (as defined below) then in effect times the cash dividends then
to be paid on each share of Burlington Stock. In addition, if the Corporation
shall pay any dividend or make any distribution on Burlington Stock payable in
assets, securities or other forms of noncash consideration (other than dividends
or distributions solely in shares of Burlington Stock), then, in each such case,
the Corporation shall simultaneously pay or make on each outstanding share of
Series D Preferred Stock a dividend or distribution in like kind of the
Burlington Formula Number then in effect times such dividend or distribution on
each share of Burlington Stock. As used herein, the 'Burlington Formula Number'
shall be 1,000; provided, however, that if at any time after December [xx],
1995, the Corporation shall (x) declare or pay any dividend on Burlington Stock
payable in shares of Burlington Stock or make any distribution on Burlington
Stock in shares of Burlington Stock, (y) subdivide (by a stock split or
otherwise) the outstanding shares of Burlington Stock into a larger number of
shares of Burlington Stock or (z) combine (by a reverse stock split or
otherwise) the outstanding shares of Burlington Stock into a smaller number of
shares of Burlington Stock, then in each such event the Burlington Formula
Number shall be adjusted to a number determined by multiplying the Burlington
Formula Number in effect immediately prior to such event by a fraction, the
numerator of which is the number of shares of Burlington Stock that are
outstanding immediately after such event and the denominator of which is the
number of shares of Burlington Stock that are outstanding immediately prior to
such event (and rounding the result to the nearest whole number); and provided
further that if at any time after December [xx], 1995, the Corporation shall
issue any shares of its capital stock in a reclassification or change of the
outstanding shares of Burlington Stock (including any such reclassification or
change in
10
connection with a merger in which the Corporation is the surviving corporation),
then in each such event the Burlington Formula Number shall be appropriately
adjusted to reflect such reclassification or change.
(b) The Corporation shall declare a dividend or distribution on the Series
D Preferred Stock as provided in Section 2(a) above immediately prior to or at
the same time it declares a dividend or distribution on Burlington Stock (other
than a dividend or distribution solely in shares of Burlington Stock); provided,
however, that, in the event no dividend or distribution (other than a dividend
or distribution in shares of Burlington Stock) shall have been declared on
Burlington Stock during the period between any Quarterly Dividend Payment Date
and the next subsequent Quarterly Dividend Payment Date, a dividend of $2.00 per
share on the Series D Preferred Stock shall nevertheless be payable on such
subsequent Quarterly Dividend Payment Date. The Board of Directors may fix a
record date for the determination of holders of shares of Series D Preferred
Stock entitled to receive a dividend or distribution declared thereon, which
record date shall be the same as the record date for any corresponding dividend
or distribution on Burlington Stock.
(c) Dividends shall begin to accrue and be cumulative on outstanding shares
of Series D Preferred Stock from and after the Quarterly Dividend Payment Date
next preceding the date of original issue of such shares of Series D Preferred
Stock; provided, however, that dividends on such shares which are originally
issued after the record date for the determination of holders of shares of
Series D Preferred Stock entitled to receive a quarterly dividend and on or
prior to the next succeeding Quarterly Dividend Payment Date shall begin to
accrue and be cumulative from and after such Quarterly Dividend Payment Date.
Accrued but unpaid dividends shall not bear interest. Dividends paid on the
shares of Series D 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.
(d) So long as any shares of the Series D Preferred Stock are outstanding,
no dividends or other distributions shall be declared, paid or distributed, or
set aside for payment or distribution, on Burlington Stock unless, in each case,
the dividend required by this Section 2 to be declared on the Series D Preferred
Stock shall have been declared.
(e) The holders of the shares of Series D Preferred Stock shall not be
entitled to receive any dividends or other distributions except as provided
herein.
3. Voting Rights. The holders of shares of Series D Preferred Stock shall
have the following voting rights:
(a) Each holder of Series D Preferred Stock shall be entitled to a
number of votes equal to the product of (1) the Burlington Formula Number
then in effect for each share of Series A Preferred Stock held of record on
each matter on which holders of Burlington Stock are entitled to vote times
(2) the maximum number of votes which the holders of Burlington Stock then
have with respect to such matter.
(b) Except as otherwise provided herein or by applicable law, the
holders of shares of Series D Preferred Stock, the holders of shares of
Burlington Stock and the holders of any other class of capital stock
entitled to vote in the election of directors shall vote together as one
class for the election of directors of the Corporation. In addition, the
holders of Series D Preferred Stock and the holders of Burlington Stock
shall vote together as one class on all other matters submitted to a vote
of holders of Burlington Stock.
(c) If at the time of any annual meeting of shareholders for the
election of directors, the equivalent of six quarterly dividends (whether
or not consecutive) payable on any share or shares of Series D Preferred
Stock are in default, the number of directors constituting the Board of
Directors of the Corporation shall be increased by two. In addition to
voting together with other holders of capital stock as set forth in Section
3(a) for the election of other directors of the Corporation, the holders of
record of the Series D Preferred Stock, voting separately as a class to the
exclusion of such other holders, shall be entitled at said meeting of
shareholders (and at each subsequent annual meeting of shareholders),
unless all dividends in arrears have been paid or declared and set apart
for payment prior thereto, to vote for the election of two directors of the
11
Corporation, the holders of any Series D Preferred Stock being entitled to
cast a number of votes per share of Series D Preferred Stock equal to the
Burlington Formula Number. Until the default in payments of all dividends
which permitted the election of said directors shall cease to exist any
director who shall have been so elected pursuant to the next preceding
sentence may be removed at any time, either with or without cause, only by
the affirmative vote of the holders of the shares at the time entitled to
cast a majority of the votes entitled to be cast for the election of any
such director at a special meeting of such holders called for that purpose,
and any vacancy thereby created may be filled by the vote of such holders.
If and when such default shall cease to exist, the holders of the Series D
Preferred Stock shall be divested of the foregoing special voting rights,
subject to revesting in the event of each and every subsequent like default
in payments of dividends. Upon the termination of the foregoing special
voting rights, the terms of office of all persons who may have been elected
directors pursuant to said special voting rights shall forthwith terminate,
and the number of directors constituting the Board of Directors shall be
reduced by two. The voting rights granted by this Section 3(c) shall be in
addition to any other voting rights granted to the holders of the Series D
Preferred Stock in this Section 3.
(d) Except as provided herein, in Section 11 or by applicable law,
holders of Series D 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 Burlington Stock as set forth herein) for
authorizing or taking any corporate action.
4. Certain Restrictions. (a) Whenever quarterly dividends or other
dividends or distributions payable on the Series D 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 D
Preferred Stock outstanding shall have been paid in full, the Corporation shall
not:
(i) 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 D Preferred Stock;
(ii) 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 D Preferred Stock,
except dividends paid ratably on the Series D 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;
(iii) 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 D 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 D Preferred Stock; or
(iv) purchase or otherwise acquire for consideration any shares of
Series D Preferred Stock, or any shares of stock ranking on a parity with
the Series D 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 subparagraph (a) of this Section
4, purchase or otherwise acquire such shares at such time and in such manner.
5. Liquidation Rights. Upon the liquidation, dissolution or winding up of
the Corporation, whether voluntary or involuntary, no distribution shall be made
(a) to the holders of shares of stock ranking junior (either as to dividends or
upon liquidation, dissolution, or winding up) to the Series D Preferred Stock
unless, prior thereto, the holders of shares of Series D Preferred Stock shall
have received an
12
amount equal to the accrued and unpaid dividends and distributions thereon,
whether or not declared, to the date of such payment, plus an amount equal to
the greater of (i) $40 per share or (ii) an aggregate amount per share equal to
the Burlington Formula Number then in effect times the aggregate amount to be
distributed per share to holders of Burlington Stock, or (b) to the holders of
stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series D Preferred Stock, except
distributions made ratably on the Series D Preferred Stock and all other such
parity stock in proportion to the total amounts to which the holders of all such
shares are entitled upon such liquidation, dissolution or winding up.
6. Consolidation, Merger, etc. In case the Corporation shall enter into any
consolidation, merger, combination, statutory share exchange or other
transaction in which the shares of Burlington Stock are exchanged for or changed
into other stock or securities, cash or any other property, then in any such
case the then outstanding shares of Series D Preferred Stock shall at the same
time be similarly exchanged or changed in an amount per share equal to the
Burlington Formula Number then in effect times the aggregate amount of stock,
securities, cash or any other property (payable in kind), as the case may be,
into which or for which each share of Burlington Stock is exchanged or changed.
7. Redemption; No Sinking Fund. (a) The outstanding shares of Series D
Preferred Stock may be redeemed at the option of the Board of Directors as a
whole, but not in part, at any time at which, in the good faith determination of
the Board of Directors, no person beneficially owns more than 10% of the
aggregate voting power represented by all the outstanding shares of capital
stock of the Corporation generally entitled to vote in the election of Directors
of the Corporation, at a cash price per share equal to (i) 125% of the product
of the Burlington Formula Number times the Market Value (as such term is
hereinafter defined) of Burlington Stock, plus (ii) all dividends which on the
redemption date have accrued on the shares to be redeemed and have not been paid
or declared and a sum sufficient for the payment thereof set apart, without
interest. The 'Market Value' on any date shall be deemed to be the average of
the daily closing prices, per share, of Burlington Stock for the 30 consecutive
Trading Days immediately prior to the date in question. The closing price for
each Trading Day shall be the last sale price, regular way, or, in case no such
sale takes place on such Trading Day, the average of the closing bid and asked
prices, regular way, in either case as reported in the principal consolidated
transaction reporting system if Burlington Stock is listed or admitted to
trading on a national securities exchange or, if Burlington Stock is not listed
or admitted to trading on any national securities exchange, the last quoted
price or, if not so quoted, the average of the high bid and low asked prices in
the over-the-counter market, as reported by the National Association of
Securities Dealers, Inc. Automated Quotations System or such other system then
in use, or, if on any such Trading Day Burlington Stock is not quoted by any
such organization, the average of the closing bid and asked prices as furnished
by a professional market maker making a market in Burlington Stock selected by
the Board of Directors of the Corporation. If on any such Trading Day no market
maker is making a market in Burlington Stock, the fair value of Burlington Stock
on such Trading Day shall mean the fair value of Burlington Stock as determined
in good faith by the Board of Directors of the Corporation. 'Trading Day' shall
mean a day on which the principal national securities exchange on which
Burlington Stock is listed or admitted to trading is open for the transaction of
business or, if Burlington Stock is not listed or admitted to trading on any
national securities exchange, a Monday, Tuesday, Wednesday, Thursday or Friday
which is not a day on which banking institutions in the Borough of Manhattan,
the City of New York, are authorized or obligated by law or executive order to
close.
(b) The shares of Series D Preferred Stock shall not be subject to or
entitled to the operation of a retirement or sinking fund.
8. Ranking. The Series D Preferred Stock shall rank senior to Brink's
Stock, Minerals Stock and Burlington Stock, on a parity with the Corporation's
Series A Participating Cumulative Preferred Stock, par value $10 per share, and
the Corporation's Series B Participating Cumulative Preferred Stock, par value
$10 per share, and junior to all other series of Preferred Stock of the
Corporation, unless the Board of Directors shall specifically determine
otherwise in fixing the powers, preferences and relative, participating,
optional and other special rights of the shares of such series and the
qualifications, limitations and restrictions thereof.
13
9. Fractional Shares. The Series D Preferred Stock shall be issuable upon
exercise of Pittston Burlington Group Rights issued pursuant to the Rights
Agreement in whole shares or in any fraction of a share that is not smaller than
one one-thousandth (1/1000th) of a share or any integral multiple of such
fraction. At the election of the Corporation, prior to the first issuance of a
share or a fraction of a share of Series D Preferred Stock, either (1)
certificates may be issued to evidence such authorized fraction of a share of
Series D Preferred Stock, or (2) any such authorized fraction of a share of
Series D Preferred Stock may be evidenced by depository receipts pursuant to an
appropriate agreement between the Corporation and a depository selected by the
Corporation; provided that such agreement shall provide that the holders of such
depository receipts shall have all the rights, privileges and preferences to
which they are entitled as beneficial owners of the Series D Preferred Stock.
10. Reacquired Shares. Any shares of Series D Preferred Stock purchased or
otherwise acquired by the Corporation in any manner whatsoever shall be retired
and canceled promptly after the acquisition thereof. All such shares shall upon
their cancelation become authorized but unissued shares of Preferred Stock,
without designation as to series until such shares are once more designated as
part of a particular series by the Board of Directors pursuant to the provisions
of the first paragraph of Division II of Article III.
11. Amendment. None of the powers, preferences and relative, participating,
optional and other special rights of the Series D Preferred Stock as provided
herein shall be amended in any manner which would alter or change the powers,
preferences, rights or privileges of the holders of Series D Preferred Stock so
as to affect them adversely without the affirmative vote of the holders of more
than 66 2/3% of the outstanding shares of Series D Preferred Stock, voting as a
separate class.'
IN WITNESS WHEREOF, The Pittston Company has caused these Articles of
Amendment to be duly executed in its corporate name on this 27th day of July,
1993.
THE PITTSTON COMPANY,
by ..................................
Name:
Title:
Attest:
by ..................................
Name:
Title:
14
EXHIBIT B-1
[FORM OF RIGHT CERTIFICATE FOR BRINK'S RIGHTS]
CERTIFICATE NO. SCR- RIGHTS
NOT EXERCISABLE AFTER SEPTEMBER 25, 1997, OR EARLIER IF REDEEMED. 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 NO CIRCUMSTANCES MAY THIS RIGHT
CERTIFICATE OR THE RIGHTS EVIDENCED BY THIS RIGHT CERTIFICATE BE TRANSFERRED TO
AN ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS EACH
SUCH TERM IS DEFINED IN THE RIGHTS AGREEMENT) OR TO ANY PERSON WHO SUBSEQUENTLY
BECOMES SUCH A PERSON AND ANY PURPORTED TRANSFER OF RIGHTS TO ANY SUCH PERSON
SHALL BE, AND SHALL RENDER THE RIGHTS PURPORTED TO BE TRANSFERRED, NULL AND
VOID.
PITTSTON BRINK'S GROUP RIGHT CERTIFICATE
THE PITTSTON COMPANY
This certifies that , or registered assigns, is the
registered owner of the number of Pittston Brink's Group Rights (the 'Rights')
set forth above, each of which entitles the owner thereof, subject to the terms,
provisions and conditions of the Amended and Restated Rights Agreement dated as
of December [xx], 1995 (the 'Rights Agreement'), between The Pittston Company, a
Virginia corporation (the 'Company'), and Chemical Bank, a New York banking
corporation, as Rights Agent (the 'Rights Agent'), unless the Rights evidenced
hereby shall have been previously redeemed, to purchase from the Company at any
time after the Distribution Date (as defined in the Rights Agreement) and prior
to 5:00 p.m., New York City time, on September 25, 1997 (the 'Expiration Date'),
at the principal office of the Rights Agent, or its successors as Rights Agent,
in New York, New York, one one-thousandth (1/1000th) of a fully paid,
nonassessable share of Series A Participating Cumulative Preferred Stock, par
value $10 per share, of the Company (the 'Preferred Shares'), at a purchase
price of $40 per one one-thousandth (1/1000th) of a share (the 'Purchase
Price'), upon presentation and surrender of this Right Certificate with the Form
of Election to Purchase duly executed.
The Purchase Price and the number and kind of shares which may be purchased
upon exercise of each Right evidenced by this Right Certificate, as set forth
above, are the Purchase Price and the number and kind of shares which may be so
purchased as of December [xx], 1995. As provided in the Rights Agreement, the
Purchase Price and the number and kind of shares which may be purchased upon the
exercise of each Right evidenced by this Right Certificate are subject to
modification and adjustment upon the happening of certain events.
Under no circumstances may this Right Certificate or the Rights evidenced
by this Right Certificate be transferred to an Acquiring Person or an Affiliate
or Associate of an Acquiring Person (as each such term is defined in the Rights
Agreement) or to any Person who subsequently becomes such a Person and any
purported transfer of Rights to any such Person shall be, and shall render the
Rights purported to be transferred, null and void.
This Right Certificate is subject to all 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
reference to the Rights Agreement is hereby made for a full description of the
rights, limitations of rights, obligations, duties and immunities hereunder of
the Rights Agent, the Company and the holders of the Right Certificates. Copies
of the Rights Agreement are on file at the above-mentioned office of the Rights
Agent and are also available from the Company upon written request.
This Rights Certificate, with or without other Right Certificates, upon
surrender at the principal stock transfer or corporate trust office of the
Rights Agent, may be exchanged for another Right
Certificate or Right Certificates of like tenor and date evidencing Rights
entitling the holder to purchase a like aggregate number and kind of shares as
the Rights evidenced by the Right Certificate or Right Certificates surrendered
shall have entitled such holder to purchase. If this Right Certificate shall be
exercised in part, the holder shall be entitled to received upon surrender
hereof another Right Certificate or Right Certificates for the number of whole
Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights evidenced by
this Right Certificate may be redeemed by the Company at its option at a
redemption price (in cash or securities deemed by the Board of Directors to be
equivalent in value) of $.01 per Right at any time prior to the earliest of (i)
5:00 p.m. New York City time on the tenth calendar day following the Share
Acquisition Date, (ii) the occurrence of a Triggering Event or (iii) the
Expiration Date; provided, however, that after there shall be an Acquiring
Person the Rights may be redeemed only if a majority of the Disinterested
Directors determines that such redemption is in the best interests of the
Company (all terms as defined in the Rights Agreement).
The Company may, but shall not be required to, issue fractions of Preferred
Shares or distribute certificates which evidence fractions of Preferred Shares
upon the exercise of any Right or Rights evidenced hereby. In lieu of issuing
fractional shares, the Company may elect to make a cash payment as provided in
the Rights Agreement or to issue certificates or utilize a depository
arrangement as provided in the terms of the Preferred Shares.
No holder of this Right Certificate shall be entitled to vote or receive
dividends or be deemed for any purpose the holder of the Preferred Shares or of
any other securities of the Company which may at any time be issuable on the
exercise hereof, nor shall anything contained in the Rights Agreement or herein
be construed to confer upon the holder hereof, as such, any of the rights of a
shareholder of the Company, including, without limitation, any right to vote for
the election of directors or upon any matter submitted to shareholders at any
meeting thereof, or to give or withhold consent to any corporate action, or to
receive notice of meetings or other actions affecting shareholders (except as
provided in the Rights Agreement), or to receive dividends or other
distributions or subscription rights, or otherwise, until the Right or Rights
evidenced by this Right Certificate shall have been exercised as provided in
accordance with the provisions of the Rights Agreement.
This Right Certificate shall not be valid or obligatory for any purpose
until it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the Company and
its corporate seal.
Dated as of:
THE PITTSTON COMPANY,
by ..................................
[Name:]
[Title:]
Attest:
by ..................................
[Name:]
[Title:]
Countersigned:
CHEMICAL BANK, as Rights Agent,
by ..................................
Authorized Signature
2
EXHIBIT B-2
[FORM OF RIGHT CERTIFICATE FOR MINERALS RIGHTS]
CERTIFICATE NO. MR- RIGHTS
NOT EXERCISABLE AFTER SEPTEMBER 25, 1997, OR EARLIER IF REDEEMED. 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 NO CIRCUMSTANCES MAY THIS RIGHT
CERTIFICATE OR THE RIGHTS EVIDENCED BY THIS RIGHT CERTIFICATE BE TRANSFERRED TO
AN ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS EACH
SUCH TERM IS DEFINED IN THE RIGHTS AGREEMENT) OR TO ANY PERSON WHO SUBSEQUENTLY
BECOMES SUCH A PERSON AND ANY PURPORTED TRANSFER OF RIGHTS TO ANY SUCH PERSON
SHALL BE, AND SHALL RENDER THE RIGHTS PURPORTED TO BE TRANSFERRED, NULL AND
VOID.
PITTSTON MINERALS GROUP RIGHT CERTIFICATE
THE PITTSTON COMPANY
This certifies that , or registered assigns, is the
registered owner of the number of Pittston Minerals Group Rights (the 'Rights')
set forth above, each of which entitles the owner thereof, subject to the terms,
provisions and conditions of the Amended and Restated Rights Agreement dated as
of December [xx], 1995 (the 'Rights Agreement'), between The Pittston Company, a
Virginia corporation (the 'Company'), and Chemical Bank, a New York banking
corporation, as Rights Agent (the 'Rights Agent'), unless the Rights evidenced
hereby shall have been previously redeemed, to purchase from the Company at any
time after the Distribution Date (as defined in the Rights Agreement) and prior
to 5:00 p.m., New York City time, on September 25, 1997 (the 'Expiration Date'),
at the principal office of the Rights Agent, or its successors as Rights Agent,
in New York, New York, one one-thousandth (1/1000th) of a fully paid,
nonassessable share of Series B Participating Cumulative Preferred Stock, par
value $10 per share, of the Company (the 'Preferred Shares'), at a purchase
price of $40 per one one-thousandth (1/1000th) of a share (the 'Purchase
Price'), upon presentation and surrender of this Right Certificate with the Form
of Election to Purchase duly executed.
The Purchase Price and the number and kind of shares which may be purchased
upon exercise of each Right evidenced by this Right Certificate, as set forth
above, are the Purchase Price and the number and kind of shares which may be so
purchased as of December [xx], 1995. As provided in the Rights Agreement, the
Purchase Price and the number and kind of shares which may be purchased upon the
exercise of each Right evidenced by this Right Certificate are subject to
modification and adjustment upon the happening of certain events.
Under no circumstances may this Right Certificate or the Rights evidenced
by this Right Certificate be transferred to an Acquiring Person or an Affiliate
or Associate of an Acquiring Person (as each such term is defined in the Rights
Agreement) or to any Person who subsequently becomes such a Person and any
purported transfer of Rights to any such Person shall be, and shall render the
Rights purported to be transferred, null and void.
This Right Certificate is subject to all 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
reference to the Rights Agreement is hereby made for a full description of the
rights, limitations of rights, obligations, duties and immunities hereunder of
the Rights Agent, the Company and the holders of the Right Certificates. Copies
of the Rights Agreement are on file at the above-mentioned office of the Rights
Agent and are also available from the Company upon written request.
This Rights Certificate, with or without other Right Certificates, upon
surrender at the principal stock transfer or corporate trust office of the
Rights Agent, may be exchanged for another Right Certificate or Right
Certificates of like tenor and date evidencing Rights entitling the holder to
purchase a like aggregate number and kind of shares as the Rights evidenced by
the Right Certificate or Right Certificates surrendered shall have entitled such
holder to purchase. If this Right Certificate shall be exercised in part, the
holder shall be entitled to received upon surrender hereof another Right
Certificate or Right Certificates for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights evidenced by
this Right Certificate may be redeemed by the Company at its option at a
redemption price (in cash or securities deemed by the Board of Directors to be
equivalent in value) of $.01 per Right at any time prior to the earliest of (i)
5:00 p.m. New York City time on the tenth calendar day following the Share
Acquisition Date, (ii) the occurrence of a Triggering Event or (iii) the
Expiration Date; provided, however, that after there shall be an Acquiring
Person the Rights may be redeemed only if a majority of the Disinterested
Directors determines that such redemption is in the best interests of the
Company (all terms as defined in the Rights Agreement).
The Company may, but shall not be required to, issue fractions of Preferred
Shares or distribute certificates which evidence fractions of Preferred Shares
upon the exercise of any Right or Rights evidenced hereby. In lieu of issuing
fractional shares, the Company may elect to make a cash payment as provided in
the Rights Agreement or to issue certificates or utilize a depository
arrangement as provided in the terms of the Preferred Shares.
No holder of this Right Certificate shall be entitled to vote or receive
dividends or be deemed for any purpose the holder of the Preferred Shares or of
any other securities of the Company which may at any time be issuable on the
exercise hereof, nor shall anything contained in the Rights Agreement or herein
be construed to confer upon the holder hereof, as such, any of the rights of a
shareholder of the Company, including, without limitation, any right to vote for
the election of directors or upon any matter submitted to shareholders at any
meeting thereof, or to give or withhold consent to any corporate action, or to
receive notice of meetings or other actions affecting shareholders (except as
provided in the Rights Agreement), or to receive dividends or other
distributions or subscription rights, or otherwise, until the Right or Rights
evidenced by this Right Certificate shall have been exercised as provided in
accordance with the provisions of the Rights Agreement.
This Right Certificate shall not be valid or obligatory for any purpose
until it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the Company and
its corporate seal.
Dated as of:
THE PITTSTON COMPANY,
by ..................................
[Name:]
[Title:]
Attest:
by ..................................
[Name:]
[Title:]
Countersigned:
CHEMICAL BANK, as Rights Agent,
by ..................................
Authorized Signature
2
EXHIBIT B-3
[FORM OF RIGHT CERTIFICATE FOR BURLINGTON RIGHTS]
CERTIFICATE NO. SCR- RIGHTS
NOT EXERCISABLE AFTER SEPTEMBER 25, 1997, OR EARLIER IF REDEEMED. 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 NO CIRCUMSTANCES MAY THIS RIGHT
CERTIFICATE OR THE RIGHTS EVIDENCED BY THIS RIGHT CERTIFICATE BE TRANSFERRED TO
AN ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS EACH
SUCH TERM IS DEFINED IN THE RIGHTS AGREEMENT) OR TO ANY PERSON WHO SUBSEQUENTLY
BECOMES SUCH A PERSON AND ANY PURPORTED TRANSFER OF RIGHTS TO ANY SUCH PERSON
SHALL BE, AND SHALL RENDER THE RIGHTS PURPORTED TO BE TRANSFERRED, NULL AND
VOID.
PITTSTON BURLINGTON GROUP RIGHT CERTIFICATE
THE PITTSTON COMPANY
This certifies that , or registered assigns, is the
registered owner of the number of Pittston Burlington Group Rights (the
'Rights') set forth above, each of which entitles the owner thereof, subject to
the terms, provisions and conditions of the Amended and Restated Rights
Agreement dated as of December [xx], 1995 (the 'Rights Agreement'), between The
Pittston Company, a Virginia corporation (the 'Company'), and Chemical Bank, a
New York banking corporation, as Rights Agent (the 'Rights Agent'), unless the
Rights evidenced hereby shall have been previously redeemed, to purchase from
the Company at any time after the Distribution Date (as defined in the Rights
Agreement) and prior to 5:00 p.m., New York City time, on September 25, 1997
(the 'Expiration Date'), at the principal office of the Rights Agent, or its
successors as Rights Agent, in New York, New York, one one-thousandth (1/1000th)
of a fully paid, nonassessable share of Series D Participating Cumulative
Preferred Stock, par value $10 per share, of the Company (the 'Preferred
Shares'), at a purchase price of $40 per one one-thousandth (1/1000th) of a
share (the 'Purchase Price'), upon presentation and surrender of this Right
Certificate with the Form of Election to Purchase duly executed.
The Purchase Price and the number and kind of shares which may be purchased
upon exercise of each Right evidenced by this Right Certificate, as set forth
above, are the Purchase Price and the number and kind of shares which may be so
purchased as of December [xx], 1995. As provided in the Rights Agreement, the
Purchase Price and the number and kind of shares which may be purchased upon the
exercise of each Right evidenced by this Right Certificate are subject to
modification and adjustment upon the happening of certain events.
Under no circumstances may this Right Certificate or the Rights evidenced
by this Right Certificate be transferred to an Acquiring Person or an Affiliate
or Associate of an Acquiring Person (as each such term is defined in the Rights
Agreement) or to any Person who subsequently becomes such a Person and any
purported transfer of Rights to any such Person shall be, and shall render the
Rights purported to be transferred, null and void.
This Right Certificate is subject to all 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
reference to the Rights Agreement is hereby made for a full description of the
rights, limitations of rights, obligations, duties and immunities hereunder of
the Rights Agent, the Company and the holders of the Right Certificates. Copies
of the Rights Agreement are on file at the above-mentioned office of the Rights
Agent and are also available from the Company upon written request.
This Rights Certificate, with or without other Right Certificates, upon
surrender at the principal stock transfer or corporate trust office of the
Rights Agent, may be exchanged for another Right Certificate or Right
Certificates of like tenor and date evidencing Rights entitling the holder to
purchase a like aggregate number and kind of shares as the Rights evidenced by
the Right Certificate or Right Certificates surrendered shall have entitled such
holder to purchase. If this Right Certificate shall be exercised in part, the
holder shall be entitled to received upon surrender hereof another Right
Certificate or Right Certificates for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights evidenced by
this Right Certificate may be redeemed by the Company at its option at a
redemption price (in cash or securities deemed by the Board of Directors to be
equivalent in value) of $.01 per Right at any time prior to the earliest of (i)
5:00 p.m. New York City time on the tenth calendar day following the Share
Acquisition Date, (ii) the occurrence of a Triggering Event or (iii) the
Expiration Date; provided, however, that after there shall be an Acquiring
Person the Rights may be redeemed only if a majority of the Disinterested
Directors determines that such redemption is in the best interests of the
Company (all terms as defined in the Rights Agreement).
The Company may, but shall not be required to, issue fractions of Preferred
Shares or distribute certificates which evidence fractions of Preferred Shares
upon the exercise of any Right or Rights evidenced hereby. In lieu of issuing
fractional shares, the Company may elect to make a cash payment as provided in
the Rights Agreement or to issue certificates or utilize a depository
arrangement as provided in the terms of the Preferred Shares.
No holder of this Right Certificate shall be entitled to vote or receive
dividends or be deemed for any purpose the holder of the Preferred Shares or of
any other securities of the Company which may at any time be issuable on the
exercise hereof, nor shall anything contained in the Rights Agreement or herein
be construed to confer upon the holder hereof, as such, any of the rights of a
shareholder of the Company, including, without limitation, any right to vote for
the election of directors or upon any matter submitted to shareholders at any
meeting thereof, or to give or withhold consent to any corporate action, or to
receive notice of meetings or other actions affecting shareholders (except as
provided in the Rights Agreement), or to receive dividends or other
distributions or subscription rights, or otherwise, until the Right or Rights
evidenced by this Right Certificate shall have been exercised as provided in
accordance with the provisions of the Rights Agreement.
This Right Certificate shall not be valid or obligatory for any purpose
until it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the Company and
its corporate seal.
Dated as of:
THE PITTSTON COMPANY,
by ..................................
[Name:]
[Title:]
Attest:
by ..................................
[Name:]
[Title:]
Countersigned:
CHEMICAL BANK, as Rights Agent,
by ..................................
Authorized Signature
2
[ON REVERSE SIDE OF RIGHT CERTIFICATE]
FORM OF ASSIGNMENT
(TO BE EXECUTED BY THE REGISTERED HOLDER IF
SUCH HOLDER DESIRES TO TRANSFER THE RIGHTS REPRESENTED BY THIS RIGHT
CERTIFICATE.)
FOR VALUE RECEIVED.........................................................
hereby sells, assigns and transfers unto........................................
...............................................................................
(PLEASE PRINT NAME AND ADDRESS OF TRANSFEREE)
...............................................................................
this Right Certificate, together with all right, title and interest therein, and
does hereby irrevocably constitute and appoint
.......................... Attorney, to transfer the within Right Certificate
on the books of the within-named Company, with full power of substitution.
Dated: , 19
.....................................
Signature
Signature Guaranteed:
CERTIFICATE
The undersigned hereby certifies by checking the appropriate boxes that:
(1) this Right Certificate [ ] is [ ] is not being sold, assigned
and transferred by or on behalf of a Person who is or was an Acquiring
Person or an Affiliate or Associate of any such Acquiring Person (as such
terms are defined in the Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned, it
[ ] did [ ] did not acquire the Rights evidenced by this Right
Certificate from any Person who is or was an Acquiring Person or an
Affiliate or Associate of an Acquiring Person.
Dated: , 19
.....................................
Signature
Signature Guaranteed:
NOTICE
The signature on the foregoing Form of Assignment and Certificate must
correspond to the name as written upon the face of this Right Certificate in
every particular, without alteration or enlargement or any change whatsoever.
3
