EXHIBIT 99
THE PEAK TECHNOLOGIES GROUP, INC.
and
ChaseMellon Shareholder Services, as Rights Agent
RIGHTS AGREEMENT
Dated as of March 28, 1997
TABLE OF CONTENTS
Page
Section 1. Certain Definitions...............................1
Section 2. Appointment of Rights Agent...............7
Section 3. Issue of Right Certificates....................7
Section 4. Form of Right Certificates...................10
Section 5. Countersignature and Registration........11
Section 6. Transfer, Split Up, Combination and
Exchange of Right Certificates; Mutilated,
Destroyed, Lost or Stolen Right Certificates.........12
Section 7. Exercise of Rights; Purchase Price;
Expiration Date of Rights....................................13
Section 8. Cancellation and Destruction of
Right Certificates................................................16
Section 9. Availability of Preferred Shares.........16
Section 10. Preferred Shares Record Date..........17
Section 11. Adjustment of Purchase Price,
Number of Shares or Number of Rights..............18
Section 12. Certificate of Adjusted Purchase
Price or Number of Shares..................................32
Section 13. Consolidation, Merger or Sale
or Transfer of Assets or Earning Power..............32
Section 14. Fractional Rights and
Fractional Shares...............................................34
Section 15. Rights of Action.............................37
Section 16. Agreement of Right Holders...........38
Section 17. Right Certificate Holder
Not Deemed a Stockholder.................................38
Section 18. Concerning the Rights Agent............39
Section 19. Merger or Consolidation or
Change of Name of Rights Agent....................... 40
Section 20. Duties of Rights Agent....................42
Section 21. Change of Rights Agent..................45
Section 22. Issuance of New Right
Certificates......................................................47
Section 23. Redemption...................................48
Section 24. Exchange.....................................49
Section 25. Notice of Certain Events...............52
Section 26. Notices.......................................53
Section 27. Supplements and Amendments....54
Section 28. Successors.................................55
Section 29. Benefits of this Agreement.........55
Section 30. Severability................................56
Section 31. Governing Law..........................56
Section 32. Counterparts..............................56
Section 33. Descriptive Headings..................57
Section 34. Administration...........................57
Exhibit A - Form of Certificate of Designations
Exhibit B - Form of Right Certificate
Exhibit C - Summary of Rights to Purchase Preferred Shares
Agreement, dated as of March 28, 1997, between The Peak Technologies
Group, Inc., a Delaware
corporation (the "Company"), and ChaseMellon Shareholder Services, as
Rights Agent (the
"Rights Agent").
WHEREAS, the Board of Directors of the Company has authorized and
declared a dividend of one
preferred share purchase right (a "Right") for each Common Share (as
hereinafter defined) of the
Company outstanding at the Close of Business (as hereinafter defined) on
April 10, 1997 (the
"Record Date"), each Right representing the right to purchase one one-
hundredth of a Preferred
Share (as hereinafter defined), upon the terms and subject to the
conditions herein set forth, and has
further authorized and directed the issuance of one Right with respect to
each Common Share that
shall become outstanding between the Record Date and the earliest of the
Distribution Date, the
Redemption Date and the Final Expiration Date (as such terms are
hereinafter defined).
NOW THEREFORE, in consideration of the premises and the mutual
agreements herein set forth,
the parties hereby agree as follows:
Section 1. Certain Definitions. For purposes of this Agreement, the
following terms have the
meanings indicated:
(a) "Acquiring Person" shall mean any Person (as such term is hereinafter
defined) who or which,
together with all Affiliates and Associates (as such terms are hereinafter
defined) of such Person,
shall be the Beneficial Owner (as such term is hereinafter defined) of 15%
or more of the Common
Shares of the Company then outstanding, but shall not include the
Company, any Subsidiary (as
such term is hereinafter defined) of the Company, any employee benefit
plan of the Company or
any Subsidiary of the Company, or any entity holding Common Shares of
the Company for or
pursuant to the terms of any such plan. Notwithstanding the foregoing, no
Person shall become an
"Acquiring Person" as the result of an acquisition of Common Shares by
the Company which, by
reducing the number of shares outstanding, increases the proportionate
number of shares
beneficially owned by such Person to 15% or more of the Common Shares
of the Company then
outstanding; provided, however, that if a Person shall become the
Beneficial Owner of 15% or
more of the Common Shares of the Company then outstanding by reason
of share purchases by the
Company and shall, after such share purchases by the Company, become
the Beneficial Owner of
any additional Common Shares of the Company, then such Person shall be
deemed to be an
"Acquiring Person". Notwithstanding the foregoing, if the Board of
Directors of the Company
determines in good faith that a Person who would otherwise be an
"Acquiring Person", as defined
pursuant to the foregoing provisions of this paragraph (a), has become
such inadvertently, and
such Person divests as promptly as practicable a sufficient number of
Common Shares so that such
Person would no longer be an "Acquiring Person," as defined pursuant to
the foregoing provisions
of this paragraph (a), then such Person shall not be deemed to be an
"Acquiring Person" for any
purposes of this Agreement.
(b) "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule
12b-2 of the General Rules and Regulations promulgated under the
Securities Exchange Act of
1934, as amended (the "Exchange Act"), as in effect on the date of this
Agreement.
(c) 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 (other than customary
agreements with and between
underwriters and selling group members with respect to a bona fide public
offering of securities),
or upon the exercise of conversion rights, exchange rights, rights (other
than these Rights),
warrants or options, or otherwise; provided, however, that a Person shall
not be deemed the
Beneficial Owner of, or to beneficially own, securities tendered pursuant
to a tender or exchange
offer made by 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; or (B) the
right to vote pursuant to
any agreement, arrangement or understanding; provided further, however,
that a Person shall not
be deemed the Beneficial Owner of, or to beneficially own, any security if
the agreement,
arrangement or understanding to vote such security (1) arises solely from
a revocable proxy or
consent 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
promulgated 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 (other than customary agreements with and between
underwriters and selling group
members with respect to a bona fide public offering of securities) for the
purpose of acquiring,
holding, voting (except to the extent contemplated by the proviso to
Section 1(c)(ii)(B)) or
disposing of any securities of the Company.
Notwithstanding anything in this definition of Beneficial Owner to the
contrary, the phrase "then
outstanding," when used with reference to a Person's beneficial ownership
of securities of the
Company, shall mean the number of such securities then issued and
outstanding together with the
number of such securities not then actually issued and outstanding which
such Person would be
deemed to own beneficially hereunder.
Notwithstanding the foregoing, none of the Company's directors or
officers shall be deemed to be
the Beneficial Owner of, or to beneficially own, any Common Shares of
the Company owned by
any other director or officer of the Company solely by virtue of such
persons acting in their
capacities as such, including, without limitation, in connection with any
formulation and
publication of the Board of Directors' recommendation of a position, and
any actions taken in
furtherance thereof, with respect to any acquisition proposal relating to
the Company, a tender or
exchange offer for any Common Shares of the Company or any
solicitation of proxies with respect
to any Common Shares of the Company.
(d) "Business Day" shall mean any day other than a Saturday, a Sunday,
or a day on which
banking institutions in New York, New York are authorized or obligated
by law or executive order
to close.
(e) "Close of Business" on any given date shall mean 5:00 P.M. Eastern
time, on such date;
provided, however, that if such date is not a Business Day it shall mean
5:00 P.M. Eastern time, on
the next succeeding Business Day.
(f) "Common Shares" when used with reference to the Company shall
mean the shares of common
stock, par value $.01 per share, of the Company. "Common Shares"
when used with reference to
any Person other than the Company shall mean the capital stock (or equity
interest) with the
greatest voting power of such other Person or, if such other Person is a
Subsidiary of another
Person, the Person or Persons which ultimately control such first-
mentioned Person.
(g) "Distribution Date" shall have the meaning set forth in Section 3(a)
hereof.
(h) "Final Expiration Date" shall have the meaning set forth in Section
7(a) hereof.
(i) "Person" shall mean any individual, firm, corporation or other entity,
and shall include any
successor (by merger or otherwise) of such entity.
(j) "Preferred Shares" shall mean shares of Series A Junior Participating
Preferred Stock, par
value $.01 per share, of the Company having the rights and preferences
set forth in the Form of
Certificate of Designations attached to this Agreement as Exhibit
A.
(k) "Purchase Price" shall have the meaning set forth in Section 7(b)
hereof.
(l) "Redemption Date" shall have the meaning set forth in Section 7(a)
hereof.
(m) "Shares Acquisition Date" shall mean the first date of public
announcement by the Company
or an Acquiring Person that an Acquiring Person has become such.
(n) "Subsidiary" of any Person shall mean any corporation or other entity
of which a majority of
the voting power of the voting equity securities or equity interest is owned,
directly or indirectly, by
such Person.
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 such co-Rights
Agents as it may deem necessary or desirable.
Section 3. Issue of Right Certificates. (a) Until the earlier of (i) the tenth
day after the Shares
Acquisition Date or (ii) the tenth Business Day (or such later date as may
be determined by action
of the Board of Directors prior to such time as any Person becomes an
Acquiring Person) after the
date of the commencement by any Person (other than the Company, any
Subsidiary of the
Company, any employee benefit plan of the Company or of any
Subsidiary of the Company or any
entity holding Common Shares for or pursuant to the terms of any such
plan) of, or of the first
public announcement of the intention of any Person (other than the
Company, any Subsidiary of
the Company, any employee benefit plan of the Company or of any
Subsidiary of the Company or
any entity holding Common Shares for or pursuant to the terms of any
such plan) to commence, a
tender or exchange offer the consummation of which would result in any
Person becoming an
Acquiring Person (including any such date which is after the date of this
Agreement and prior to
the issuance of the Rights; the earlier of such dates being herein referred
to as the "Distribution
Date"), (x) the Rights will be evidenced (subject to the provisions of
Section 3(b) hereof) by the
certificates for Common Shares of the Company registered in the names
of the holders thereof
(which certificates shall also be deemed to be Right Certificates) and not
by separate Right
Certificates, and (y) the right to receive Right Certificates will be
transferable only in connection
with the transfer of Common Shares of the Company. As soon as
practicable after the Distribution
Date, the Company will prepare and execute, the Rights Agent will
countersign, and the Company
will send or cause to be sent (and the Rights Agent will, if requested,
send) by first-class, insured,
postage-prepaid mail, to each record holder of Common Shares of the
Company as of the Close of
Business on the Distribution Date, at the address of such holder shown on
the records of the
Company, a Right Certificate, in substantially the form of Exhibit B
hereto (a "Right Certificate"),
evidencing one Right for each Common Share of the Company so held.
As of the Distribution
Date, the Rights will be evidenced solely by such Right Certificates.
(b) On the Record Date, or as soon as practicable thereafter, the
Company will send a copy of a
Summary of Rights to Purchase Preferred Shares, in substantially the
form of Exhibit C hereto (the
"Summary of Rights"), by first-class, postage-prepaid mail, to each record
holder of Common
Shares of the Company as of the Close of Business on the Record Date, at
the address of such
holder shown on the records of the Company. With respect to certificates
for Common Shares of
the Company outstanding as of the Record Date, until the Distribution
Date, the Rights will be
evidenced by such certificates registered in the names of the holders
thereof together with a copy of
the Summary of Rights attached thereto. Until the Distribution Date (or
the earlier of the
Redemption Date or the Final Expiration Date), the surrender for transfer
of any certificate for
Common Shares outstanding on the Record Date, with or without a copy
of the Summary of Rights
attached thereto, shall also constitute the transfer of the Rights associated
with the Common Shares
of the Company represented thereby.
(c) Certificates for Common Shares of the Company which become
outstanding (including,
without limitation, reacquired Common Shares of the Company referred to
in the last sentence of
this paragraph (c)) after the Record Date but prior to the earliest of the
Distribution Date, the
Redemption Date or the Final Expiration Date shall have impressed on,
printed on, written on or
otherwise affixed to them the following legend:
This certificate also evidences and entitles the holder hereof to certain
rights as set forth in a Rights
Agreement between The Peak Technologies Group, Inc. and ChaseMellon
Shareholder Services,
dated as of March 28, 1997 (the "Rights Agreement"), the terms of which
are hereby incorporated
herein by reference and a copy of which is on file at the principal
executive offices of The Peak
Technologies Group, Inc. 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 Peak Technologies Group, Inc. will mail to the holder of this
certificate a copy of the Rights
Agreement without charge after receipt of a written request therefor.
Under certain circumstances,
as set forth in the Rights Agreement, Rights issued to any Person who
becomes an Acquiring
Person (as defined in the Rights Agreement) may become null and void.
With respect to such certificates containing the foregoing legend, until the
Distribution Date, the
Rights associated with the Common Shares of the Company 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 of the Company
represented thereby. In the event that the Company purchases or acquires
any Common Shares of
the Company after the Record Date but prior to the Distribution Date, any
Rights associated with
such Common Shares of the Company shall be deemed cancelled and
retired so that the Company
shall not be entitled to exercise any Rights associated with the Common
Shares of the Company
which are no longer outstanding.
Section 4. Form of Right Certificates. The Right Certificates (and the
forms of election to
purchase Preferred Shares and of assignment to be printed on the reverse
thereof) shall be
substantially the same as Exhibit B hereto and may have such marks of
identification or
designation and such legends, summaries or endorsements printed thereon
as the Company may
deem appropriate and as are not inconsistent with the provisions of this
Agreement, or as may be
required to comply with any applicable law or with any rule or regulation
made pursuant thereto or
with any rule or regulation of any stock exchange on which the Rights
may from time to time be
listed, or to conform to usage. Subject to the provisions of Section 22
hereof, the Right
Certificates shall entitle the holders thereof to purchase such number of
one one-hundredths of a
Preferred Share as shall be set forth therein at the Purchase Price, but the
number of such one one-
hundredths of a Preferred Share and the Purchase Price shall be subject to
adjustment as provided
herein.
Section 5. Countersignature and Registration. The Right Certificates
shall be executed on behalf
of the Company by its Chairman of the Board, its Chief Executive
Officer, its President, any of its
Vice Presidents, or its Treasurer, either manually or by facsimile
signature, shall have affixed
thereto the Company's seal or a facsimile thereof, and shall be attested by
the Secretary or an
Assistant Secretary of the Company, either manually or by facsimile
signature. The Right
Certificates shall be manually countersigned by the Rights Agent and shall
not be valid for any
purpose unless countersigned. In case any officer of the Company who
shall have signed any of
the Right Certificates shall cease to be such officer of the Company before
countersignature by the
Rights Agent and issuance and delivery by the Company, such Right
Certificates, nevertheless,
may be countersigned by the Rights Agent and issued and delivered by the
Company with the same
force and effect as though the person who signed such Right Certificates
had not ceased to be such
officer of the Company; and any Right 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.
Following the Distribution Date, the Rights Agent will keep or cause to be
kept, at its principal
office, books for registration and transfer of the Right Certificates issued
hereunder. Such books
shall show the names and addresses of the respective holders of the Right
Certificates, the number
of Rights evidenced on its face by each of the Right Certificates 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. Subject to the provisions of
Section 14 hereof, at any
time after the Close of Business on the Distribution Date, and at or prior
to the Close of Business
on the earlier of the Redemption Date or the Final Expiration Date, any
Right Certificate or Right
Certificates (other than Right Certificates representing Rights that have
become void pursuant to
Section 11(a)(ii) hereof or that have been exchanged pursuant to Section
24 hereof) may be
transferred, split up, combined or exchanged for another Right Certificate
or Right Certificates,
entitling the registered holder to purchase a like number of one one-
hundredths of a Preferred Share
as the Right Certificate or Right Certificates surrendered then entitled
such holder to purchase.
Any registered holder desiring to transfer, split up, combine or exchange
any Right Certificate or
Right Certificates shall make such request in writing delivered to the
Rights Agent, and shall
surrender the Right Certificate or Right Certificates to be transferred, split
up, combined or
exchanged at the principal office of the Rights Agent. Thereupon the
Rights Agent shall
countersign and deliver to the Person entitled thereto a Right Certificate or
Right Certificates, as
the case may be, as so requested. The Company may require payment of
a sum sufficient to cover
any tax or governmental charge that may be imposed in connection with
any transfer, split up,
combination or exchange of Right Certificates.
Upon receipt by the Company and the Rights Agent of evidence
reasonably satisfactory to them of
the loss, theft, destruction or mutilation of a Right Certificate, and, in case
of loss, theft or
destruction, of indemnity or security reasonably satisfactory to them, and,
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 cancellation of the
Right Certificate if
mutilated, the Company will make and deliver a new Right Certificate of
like tenor to the Rights
Agent for delivery to the registered holder in lieu of the Right Certificate
so lost, stolen, destroyed
or mutilated.
Section 7. Exercise of Rights; Purchase Price; Expiration Date of Rights.
(a) The registered
holder of any Right Certificate may, subject to the second paragraph of
Section 11(a)(ii), 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, together with payment of the Purchase Price for each one
one-hundredth of a
Preferred Share as to which the Rights are exercised, at or prior to the
earliest of (i) the Close of
Business on March 28, 2007 (the "Final Expiration Date"), (ii) the time at
which the Rights are
redeemed as provided in Section 23 hereof (the "Redemption Date"), or
(iii) the time at which such
Rights are exchanged as provided in Section 24 hereof.
(b) The Purchase Price for each one one-hundredth of a Preferred Share
purchasable pursuant to
the exercise of a Right shall initially be $80, and shall be subject to
adjustment from time to time
as provided in Sections 11 and 13 hereof and shall be payable in lawful
money of the United States
of America in accordance with paragraph (c) below (the "Purchase
Price").
(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 shares to be
purchased and an amount equal to any applicable transfer tax required to
be paid by the holder of
such Right Certificate in accordance with Section 9 hereof by wire
transfer, certified check,
cashier's check, official bank check or money order payable to the order of
the Company, the
Rights Agent shall thereupon promptly (i) (A) requisition from any
transfer agent of the Preferred
Shares 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,
or (B) requisition from
the depositary agent depositary receipts representing such number of one
one-hundredths of a
Preferred Share as are to be purchased (in which case certificates for the
Preferred Shares
represented by such receipts shall be deposited by the transfer agent with
the depositary agent) and
the Company hereby directs the depositary agent to comply with such
request, (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 14 hereof, (iii) after receipt of
such certificates or
depositary receipts, cause the same to be delivered to or upon the order of
the registered holder of
such Right Certificate, registered in such name or names as may be
designated by such holder and
(iv) when appropriate, after receipt, 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 to the registered holder of
such Right Certificate or
to such holder's duly authorized assigns, subject to the provisions of
Section 14 hereof.
Section 8. Cancellation and Destruction of Right Certificates. All Right
Certificates surrendered
for the purpose of exercise, transfer, split up, combination or exchange
shall, if surrendered to the
Company or to any of its agents, be delivered to the Rights Agent for
cancellation or in cancelled
form, or, if surrendered to the Rights Agent, shall be cancelled by it, and
no Right Certificates shall
be issued in lieu thereof except as expressly permitted by any of the
provisions of this Rights
Agreement. The Company shall deliver to the Rights Agent for
cancellation and retirement, and
the Rights Agent shall so cancel and retire, any other Right Certificate
purchased or acquired by
the Company otherwise than upon the exercise thereof. The Rights Agent
shall deliver all cancelled
Right Certificates to the Company, or shall, at the written request of the
Company, destroy such
cancelled Right Certificates, and in such case shall deliver a certificate of
destruction thereof to the
Company.
Section 9. Availability of Preferred Shares. The Company covenants and
agrees that it will cause
to be reserved and kept available out of its authorized and unissued
Preferred Shares or any
Preferred Shares held in its treasury, the number of Preferred Shares that
will be sufficient to
permit the exercise in full of all outstanding Rights in accordance with
Section 7. 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 nonassessable shares.
The Company further covenants and agrees that it will pay when due and
payable any and all
federal and state transfer taxes and charges which may be payable in
respect of the issuance or
delivery of the Right Certificates or of any Preferred Shares upon the
exercise of Rights. The
Company shall not, however, be required to pay any transfer tax which
may be payable in respect
of any transfer or delivery of Right Certificates to a Person other than, or
the issuance or delivery
of certificates or depositary receipts 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
to deliver any certificates or depositary receipts 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
reasonable 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. Prior to the
exercise of the Rights evidenced thereby, the holder of a Right Certificate
shall not be entitled to
any rights of a holder of Preferred Shares for which the Rights shall be
exercisable, including,
without limitation, the right to vote, to receive dividends or other
distributions or to exercise any
preemptive rights, and shall not be entitled to receive any notice of any
proceedings of the
Company, except as provided herein.
Section 11. Adjustment of Purchase Price, Number of Shares or Number
of Rights. The Purchase
Price, the number of Preferred Shares or other securities covered by each
Right and the number of
Rights outstanding are subject to adjustment from time to time as
provided in this Section 11.
(a) (i) In the event the Company shall at any time after the date of this
Agreement (A) declare a
dividend on the Preferred Shares payable in Preferred Shares, (B)
subdivide the outstanding
Preferred Shares, (C) combine the outstanding Preferred Shares into a
smaller number of Preferred
Shares or (D) issue any shares of its capital stock in a reclassification of
the Preferred Shares
(including any such reclassification in connection with a consolidation or
merger in which the
Company is the continuing or surviving corporation), except as otherwise
provided in this Section
11(a), the Purchase Price in effect at the time of the record date for such
dividend or of the
effective date of such subdivision, combination or reclassification, and the
number and kind of
shares of capital stock issuable on such date, shall be proportionately
adjusted so that the holder of
any Right exercised after such time shall be entitled to receive the
aggregate number and kind of
shares of capital stock which, if such Right had been exercised
immediately prior to such date and
at a time when the Preferred Shares transfer books of the Company were
open, such holder would
have owned upon such exercise and been entitled to receive by virtue of
such dividend, subdivision,
combination or reclassification; provided, however, that in no event shall
the consideration to be
paid upon the exercise of one Right be less than the aggregate par value of
the shares of capital
stock of the Company issuable upon exercise of one Right.
(ii) Subject to Section 24 of this Agreement, in the event any Person
becomes an Acquiring
Person, each holder of a Right shall thereafter have a right to receive,
upon exercise thereof at a
price equal to the then current Purchase Price multiplied by the number of
one one-hundredths of a
Preferred Share for which a Right is then exercisable, in accordance with
the terms of this
Agreement and in lieu of Preferred Shares, such number of Common
Shares of the Company as
shall equal the result obtained by (x) multiplying the then current
Purchase Price by the number of
one one-hundredths of a Preferred Share for which a Right is then
exercisable and dividing that
product by (y) 50% of the then current per share market price of the
Company's Common Shares
(determined pursuant to Section 11(d) hereof) on the date of the
occurrence of such event;
provided, however, that if the transaction that would otherwise give rise to
the foregoing
adjustment is also subject to the provisions of Section 13 hereof, then only
the provisions of
Section 13 hereof shall apply and no adjustment shall be made pursuant to
this Section 11(a)(ii).
In the event that any Person shall become an Acquiring Person and the
Rights shall then be
outstanding, the Company shall not take any action which would eliminate
or diminish the benefits
intended to be afforded by the Rights.
From and after the occurrence of such event, any Rights that are or were
acquired or beneficially
owned by any Acquiring Person (or any Associate or Affiliate of such
Acquiring Person) shall be
void and any holder of such Rights shall thereafter have no right to
exercise such Rights under any
provision of this Agreement. No Right Certificate shall be issued
pursuant to Section 3 that
represents Rights beneficially owned by an Acquiring Person whose
Rights would be void pursuant
to the preceding sentence or any Associate or Affiliate thereof; no Right
Certificate shall be issued
at any time upon the transfer of any Rights to an Acquiring Person whose
Rights would be void
pursuant to the preceding sentence or any Associate or Affiliate thereof or
to any nominee of such
Acquiring Person, Associate or Affiliate; and any Right Certificate
delivered to the Rights Agent
for transfer to an Acquiring Person whose Rights would be void pursuant
to the preceding sentence
shall be canceled.
(iii) In the event that there shall not be sufficient Common Shares of the
Company issued but not
outstanding or authorized but unissued to permit the exercise in full of the
Rights in accordance
with the foregoing subparagraph (ii), the Company shall take all such
action as may be necessary
to authorize additional Common Shares of the Company for issuance
upon exercise of the Rights.
In the event the Company shall, after good faith effort, be unable to take
all such action as may be
necessary to authorize such additional Common Shares of the Company,
the Company shall
substitute, for each Common Share of the Company that would otherwise
be issuable upon
exercise of a Right, a number of Preferred Shares or fraction thereof such
that the current per share
market price of one Preferred Share multiplied by such number or fraction
is equal to the current
per share market price of one Common Share of the Company as of the
date of issuance of such
Preferred Shares or fraction thereof.
(b) In case the Company shall fix a record date for the issuance of rights,
options or warrants to
all holders of Preferred Shares entitling them (for a period expiring within
45 calendar days after
such record date) to subscribe for or purchase Preferred Shares (or shares
having the same rights,
privileges and preferences as the Preferred Shares ("equivalent preferred
shares")) or securities
convertible into Preferred Shares or equivalent preferred shares at a price
per Preferred Share or
equivalent preferred share (or having a conversion price per share, if a
security convertible into
Preferred Shares or equivalent preferred shares) less than the then current
per share market price of
the Preferred Shares (as defined in Section 11(d) hereof) on such record
date, the Purchase Price to
be in effect after such record date shall be determined by multiplying the
Purchase Price in effect
immediately prior to such record date by a fraction, the numerator of
which shall be the number of
Preferred Shares outstanding on such record date plus the number of
Preferred Shares which the
aggregate offering price of the total number of Preferred Shares and/or
equivalent preferred shares
so to be offered (and/or the aggregate initial conversion price of the
convertible securities so to be
offered) would purchase at such current market price and the denominator
of which shall be the
number of Preferred Shares outstanding on such record date plus the
number of additional
Preferred Shares and/or equivalent preferred shares to be offered for
subscription or purchase (or
into which the convertible securities so to be offered are initially
convertible); provided, however,
that in no event shall the consideration to be paid upon the exercise of one
Right be less than the
aggregate par value of the shares of capital stock of the Company issuable
upon exercise of one
Right. 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. Preferred Shares owned by or held for the account
of the Company shall not
be deemed outstanding for the purpose of any such computation. Such
adjustment shall be made
successively whenever such a record date is fixed; and in the event that
such rights, options or
warrants are not so issued, the Purchase Price shall be adjusted to be the
Purchase Price which
would then be in effect if such record date had not been fixed.
(c) In case the Company shall fix a record date for the making of a
distribution to all holders of the
Preferred Shares (including any such distribution made in connection with
a consolidation or
merger in which the Company is the continuing or surviving corporation)
of evidences of
indebtedness or assets (other than a regular quarterly cash dividend or a
dividend payable in
Preferred Shares) or subscription rights or warrants (excluding those
referred to in Section 11(b)
hereof), the Purchase Price to be in effect after such record date shall be
determined by multiplying
the Purchase Price in effect immediately prior to such record date by a
fraction, the numerator of
which shall be the then current per share market price of the Preferred
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 assets or evidences of indebtedness so to be distributed or of such
subscription rights or
warrants applicable to one Preferred Share and the denominator of which
shall be such current per
share market price of the Preferred Shares; provided, however, that in no
event shall the
consideration to be paid upon the exercise of one Right be less than the
aggregate par value of the
shares of capital stock of the Company to be issued upon exercise of one
Right. Such adjustments
shall be made successively whenever such a record date is fixed; and in
the event that such
distribution is not so made, the Purchase Price shall again be adjusted to
be the Purchase Price
which would then be in effect if such record date had not been fixed.
(d) (i) For the purpose of any computation hereunder, the "current per
share market price" of any
security (a "Security" for the purpose of this Section 11(d)(i)) on any date
shall be deemed to be
the average of the daily closing prices per share of such Security for the
thirty (30) consecutive
Trading Days (as such term is hereinafter defined) which fall within the
one-year period ending on
such date and have the lowest such average; provided, however, that in the
event that the current
per share market price of the Security is determined during a period
following the announcement by
the issuer of such Security of (A) a dividend or distribution on such
Security payable in shares of
such Security or securities convertible into such shares, or (B) any
subdivision, combination or
reclassification of such Security and prior to the expiration of thirty (30)
Trading Days after the
ex-dividend date for such dividend or distribution, or the record date for
such subdivision,
combination or reclassification, then, and in each such case, the current
per share market price
shall be appropriately adjusted to reflect the current market price per
share equivalent of such
Security. The closing price for each day shall be the last sale price,
regular way, or, in case no
such sale takes place on such day, the average of the closing bid and asked
prices, regular way, in
either case as reported in the principal consolidated transaction reporting
system with respect to
securities listed or admitted to trading on the New York Stock Exchange
or, if the Security is not
listed or admitted to trading on the New York Stock Exchange, as
reported in the principal
consolidated transaction reporting system with respect to securities listed
on the principal national
securities exchange on which the Security is listed or admitted to trading
or, if the 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 date the
Security 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 the Security selected by the
Board of Directors of
the Company. The term "Trading Day" shall mean a day on which the
principal national securities
exchange on which the Security is listed or admitted to trading is open for
the transaction of
business or, if the Security is not listed or admitted to trading on any
national securities exchange,
a Business Day.
(ii) For the purpose of any computation hereunder, the "current per share
market price" of the
Preferred Shares shall be determined in accordance with the method set
forth in Section 11(d)(i). If
the Preferred Shares are not publicly traded, the "current per share market
price" of the Preferred
Shares shall be conclusively deemed to be the current per share market
price of the Common
Shares of the Company as determined pursuant to Section 11(d)(i)
(appropriately adjusted to
reflect any stock split, stock dividend or similar transaction occurring
after the date hereof),
multiplied by one hundred. If neither the Common Shares of the
Company nor the Preferred
Shares are publicly held or so listed or traded, "current per share market
price" shall mean the fair
value per share as determined in good faith by the Board of Directors of
the Company, whose
determination shall be described in a statement filed with the Rights
Agent.
(e) No adjustment in the Purchase Price shall be required unless such
adjustment would require an
increase or decrease of at least 1% in the Purchase Price; provided,
however, that any adjustments
which by reason of this Section 11(e) are not required to be made shall be
carried forward and
taken into account in any subsequent adjustment. All calculations under
this Section 11 shall be
made to the nearest cent or to the nearest one one-millionth of a Preferred
Share or one ten-
thousandth of any other share or security as the case may be.
Notwithstanding the first sentence of
this Section 11(e), any adjustment required by this Section 11 shall be
made no later than the
earlier of (i) three years from the date of the transaction which requires
such adjustment or (ii) the
date of the expiration of the right to exercise any Rights.
(f) If as a result of an adjustment made pursuant to Section 11(a) 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 Section
11(a) through (c), inclusive, and the provisions of Sections 7, 9, 10 and 13
with respect to the
Preferred Shares shall apply on like terms to any such other shares.
(g) All Rights originally issued by the Company subsequent to any
adjustment made to the
Purchase Price hereunder shall evidence the right to purchase, at the
adjusted Purchase Price, the
number of one one-hundredths of a Preferred Share purchasable from time
to time hereunder upon
exercise of the Rights, all subject to further adjustment as provided herein.
(h) Unless the Company shall have exercised its election as provided in
Section 11(i), upon each
adjustment of the Purchase Price as a result of the calculations made in
Sections 11(b) and (c),
each Right outstanding immediately prior to the making of such
adjustment shall thereafter
evidence the right to purchase, at the adjusted Purchase Price, that number
of one one-hundredths
of a Preferred Share (calculated to the nearest one one-millionth of a
Preferred Share) obtained by
(i) multiplying (x) the number of one one-hundredths of a share covered
by a Right immediately
prior to this adjustment by (y) the Purchase Price in effect immediately
prior to such adjustment of
the Purchase Price and (ii) dividing the product so obtained by the
Purchase Price in effect
immediately after such adjustment of the Purchase Price.
(i) The Company may elect on or after the date of any adjustment of the
Purchase Price to adjust
the number of Rights, in substitution for any adjustment in the number of
one one-hundredths of a
Preferred Share purchasable upon the exercise of a Right. Each of the
Rights outstanding after
such adjustment of the number of Rights shall be exercisable for the
number of one one-hundredths
of a Preferred Share for which a Right was exercisable immediately prior
to such adjustment.
Each Right held of record prior to such adjustment of the number of
Rights shall become that
number of Rights (calculated to the nearest one ten-thousandth) obtained
by dividing the Purchase
Price in effect immediately prior to adjustment of the Purchase Price by
the Purchase Price in
effect immediately after adjustment of the Purchase Price. The Company
shall make a public
announcement of its election to adjust the number of Rights, indicating the
record date for the
adjustment, and, if known at the time, the amount of the adjustment to be
made. This record date
may be the date on which the Purchase Price is adjusted or any day
thereafter, but, if the Right
Certificates have been issued, shall be at least 10 days later than the date
of the public
announcement. If Right Certificates have been issued, upon each
adjustment of the number of
Rights pursuant to this Section 11(i), the Company shall, as promptly as
practicable, cause to be
distributed to holders of record of Right Certificates on such record date
Right Certificates
evidencing, subject to Section 14 hereof, the additional Rights to which
such holders shall be
entitled as a result of such adjustment, or, at the option of the Company,
shall cause to be
distributed to such holders of record in substitution and replacement for
the Right Certificates held
by such holders prior to the date of adjustment, and upon surrender
thereof, if required by the
Company, new Right Certificates evidencing all the Rights to which such
holders shall be entitled
after such adjustment. Right Certificates so to be distributed shall be
issued, executed and
countersigned in the manner provided for herein and shall be registered in
the names of the holders
of record of Right Certificates on the record date specified in the public
announcement.
(j) Irrespective of any adjustment or change in the Purchase Price or the
number of one one-
hundredths of a Preferred Share issuable upon the exercise of the Rights,
the Right Certificates
theretofore and thereafter issued may continue to express the Purchase
Price and the number of one
one-hundredths of a Preferred Share which were expressed in the initial
Right Certificates issued
hereunder.
(k) Before taking any action that would cause an adjustment reducing the
Purchase Price below
one one-hundredth of the then par value, if any, of the Preferred Shares
issuable upon exercise of
the Rights, the Company shall take any corporate action which may, in the
opinion of its counsel,
be necessary in order that the Company may validly and legally issue fully
paid and nonassessable
Preferred Shares at such adjusted Purchase Price.
(l) In any case in which this Section 11 shall require that an adjustment in
the Purchase Price be
made effective as of a record date for a specified event, the Company may
elect to defer until the
occurrence of such event the issuing to the holder of any Right exercised
after such record date of
the Preferred Shares and other capital stock or securities of the Company,
if any, issuable upon
such exercise over and above the Preferred Shares and other capital stock
or securities of the
Company, if any, issuable upon such exercise on the basis of the Purchase
Price in effect prior to
such adjustment; provided, however, that the Company shall deliver to
such holder a due xxxx or
other appropriate instrument evidencing such holder's right to receive such
additional shares upon
the occurrence of the event requiring such adjustment.
(m) Anything in this Section 11 to the contrary notwithstanding, the
Company shall be entitled to
make such reductions in the Purchase Price, in addition to those
adjustments expressly required by
this Section 11, as and to the extent that it in its sole discretion shall
determine to be advisable in
order that any consolidation or subdivision of the Preferred Shares,
issuance wholly for cash of any
Preferred Shares at less than the current market price, issuance wholly for
cash of Preferred Shares
or securities which by their terms are convertible into or exchangeable for
Preferred Shares,
dividends on Preferred Shares payable in Preferred Shares or issuance of
rights, options or
warrants referred to hereinabove in Section 11(b), hereafter made by the
Company to holders of its
Preferred Shares shall not be taxable to such stockholders.
(n) In the event that at any time after the date of this Agreement and prior
to the Distribution Date,
the Company shall (i) declare or pay any dividend on the Common Shares
of the Company payable
in Common Shares of the Company or (ii) effect a subdivision,
combination or consolidation of the
Common Shares of the Company (by reclassification or otherwise than by
payment of dividends in
Common Shares of the Company) into a greater or lesser number of
Common Shares of the
Company, then in any such case (A) the number of one one-hundredths of
a Preferred Share
purchasable after such event upon proper exercise of each Right shall be
determined by multiplying
the number of one one-hundredths of a Preferred Share so purchasable
immediately prior to such
event by a fraction, the numerator of which is the number of Common
Shares of the Company
outstanding immediately before such event and the denominator of which
is the number of
Common Shares of the Company outstanding immediately after such
event, and (B) each Common
Share of the Company outstanding immediately after such event shall
have issued with respect to it
that number of Rights which each Common Share of the Company
outstanding immediately prior
to such event had issued with respect to it. The adjustments provided for
in this Section 11(n) shall
be made successively whenever such a dividend is declared or paid or
such a subdivision,
combination or consolidation is effected.
Section 12. Certificate of Adjusted Purchase Price or Number of Shares.
Whenever an adjustment
is made as provided in Section 11 or 13 hereof, the Company shall
promptly (a) prepare a
certificate setting forth such adjustment, and a brief statement of the facts
accounting for such
adjustment, (b) file with the Rights Agent and with each transfer agent for
the Common Shares of
the Company or 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 25
hereof.
Section 13. Consolidation, Merger or Sale or Transfer of Assets or
Earning Power. In the event,
directly or indirectly, at any time after a Person has become an Acquiring
Person, (a) the Company
shall consolidate with, or merge with and into, any other Person, (b) any
Person shall consolidate
with the Company, or merge with and into the Company and the Company
shall be the continuing
or surviving corporation of such merger and, in connection with such
merger, all or part of the
Common Shares of the Company shall be changed into or exchanged for
stock or other securities
of any other Person (or the Company) or cash or any other property, or (c)
the Company shall sell
or otherwise transfer (or one or more of its Subsidiaries shall sell or
otherwise transfer), in one or
more transactions, assets or earning power aggregating 50% or more of
the assets or earning power
of the Company and its Subsidiaries (taken as a whole) to any other
Person other than the
Company or one or more of its wholly-owned Subsidiaries, then, and in
each such case, proper
provision shall be made so that (i) each holder of a Right (other than
Rights which have become
void pursuant to Section 11(a)(ii) hereof shall thereafter have the right to
receive, upon the exercise
thereof at a price equal to the then current Purchase Price multiplied by
the number of one one-
hundredths of a Preferred Share for which a Right is then exercisable, in
accordance with the terms
of this Agreement and in lieu of Preferred Shares, such number of
Common Shares of such other
Person (including the Company as successor thereto or as the surviving
corporation) as shall equal
the result obtained by (A) multiplying the then current Purchase Price by
the number of one one-
hundredths of a Preferred Share for which a Right is then exercisable and
dividing that product by
(B) 50% of the then current per share market price of the Common Shares
of such other Person
(determined pursuant to Section 11(d) hereof) on the date of
consummation of such consolidation,
merger, sale or transfer; (ii) the issuer of such Common Shares shall
thereafter be liable for, and
shall assume, by virtue of such consolidation, merger, sale or transfer, all
the obligations and duties
of the Company pursuant to this Agreement; (iii) the term "Company"
shall thereafter be deemed to
refer to such issuer; and (iv) such issuer shall take such steps (including,
but not limited to, the
reservation of a sufficient number of its Common Shares to permit the
exercise in full of all
outstanding Rights in accordance with this Agreement) 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 the Common Shares thereafter
deliverable upon the exercise of
the Rights. The Company shall not consummate any such consolidation,
merger, sale or transfer
unless prior thereto the Company and such issuer shall have executed and
delivered to the Rights
Agent a supplemental agreement so providing. The Company shall not
enter into any transaction
of the kind referred to in this Section 13 if at the time of such transaction
there are any rights,
warrants, instruments or securities outstanding or any agreements or
arrangements which, as a
result of the consummation of such transaction, would eliminate or
substantially diminish the
benefits intended to be afforded by the Rights. The provisions of this
Section 13 shall similarly
apply to successive mergers or consolidations or sales or other transfers.
Section 14. Fractional Rights and Fractional Shares. (a) The Company
shall not be required to
issue fractions of Rights or to distribute Right Certificates which evidence
fractional Rights. In
lieu of such fractional Rights, there shall be paid to the 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
14(a), the current market value of a whole Right shall be the closing price
of the Rights for the
Trading Day immediately prior to the date on which such fractional
Rights would have been
otherwise issuable. The closing price for any day shall be the last sale
price, regular way, or, in
case no such sale takes place on such day, the average of the closing bid
and asked prices, regular
way, in either case as reported in the principal consolidated transaction
reporting system with
respect to securities listed or admitted to trading on the New York Stock
Exchange or, if the Rights
are not listed or admitted to trading on the New York Stock Exchange, as
reported in the principal
consolidated transaction reporting system with respect to securities listed
on the principal national
securities exchange on which the Rights are listed or admitted to trading
or, if the Rights are not
listed or admitted to trading on any national securities exchange, the last
quoted price or, if not so
quoted, the average of the high bid and low asked prices in the over-the-
counter market, as reported
by NASDAQ or such other system then in use or, if on any such date the
Rights are not quoted by
any such organization, the average of the closing bid and asked prices as
furnished by a
professional market maker making a market in the Rights selected by the
Board of Directors of the
Company. If on any such date no such market maker is making a market
in the Rights, the fair
value of the Rights on such date as determined in good faith by the Board
of Directors of the
Company shall be used.
(b) The Company shall not be required to issue fractions of Preferred
Shares (other than fractions
which are integral multiples of one one-hundredth of a Preferred Share)
upon exercise of the Rights
or to distribute certificates which evidence fractional Preferred Shares
(other than fractions which
are integral multiples of one one-hundredth of a Preferred Share).
Fractions of Preferred Shares in
integral multiples of one one-hundredth of a Preferred Share may, at the
election of the Company,
be evidenced by depositary receipts, pursuant to an appropriate agreement
between the Company
and a depositary selected by it; provided, that such agreement shall
provide that the holders of such
depositary receipts shall have all the rights, privileges and preferences to
which they are entitled as
beneficial owners of the Preferred Shares represented by such depositary
receipts. In lieu of
fractional Preferred Shares that are not integral multiples of one one-
hundredth of a Preferred
Share, the Company shall 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. For the purposes of this Section 14(b), the
current market value of a
Preferred Share shall be the closing price of a Preferred Share (as
determined pursuant to the
second sentence of Section 11(d)(i) hereof) for the Trading Day
immediately prior to the date of
such exercise.
(c) The holder of a Right by the acceptance of the Right expressly waives
such holder's right to
receive any fractional Rights or any fractional shares upon exercise of a
Right (except as provided
above).
Section 15. Rights of Action. All rights of action in respect of this
Agreement, excepting the
rights of action given to the Rights Agent under Section 18 hereof, are
vested in the respective
registered holders of the Right Certificates (and, prior to the Distribution
Date, the registered
holders of the Common Shares of the Company); and any registered
holder of any Right Certificate
(or, prior to the Distribution Date, of the Common Shares of the
Company), 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 of the Company), may, in such holder's own behalf
and for such holder's
own benefit, enforce, and may institute and maintain any suit, action or
proceeding against the
Company to enforce, or otherwise act in respect of, such holder's right to
exercise the Rights
evidenced by such Right Certificate in the manner provided in such Right
Certificate and in this
Agreement. Without limiting the foregoing or any remedies available to
the holders of Rights, it is
specifically acknowledged that the holders of Rights would not have an
adequate remedy at law for
any breach of this Agreement and will be entitled to specific performance
of the obligations under,
and injunctive relief against actual or threatened violations of the
obligations of any Person subject
to, this Agreement.
Section 16. Agreement of Right Holders. Every holder of a Right, by
accepting the same,
consents and agrees with the Company and the Rights Agent and with
every other holder of a Right
that:
(a) prior to the Distribution Date, the Rights will be transferable only in
connection with the
transfer of the Common Shares of the Company;
(b) after the Distribution Date, the Right Certificates are transferable
only on the registry books of
the Rights Agent if surrendered at the principal office of the Rights Agent,
duly endorsed or
accompanied by a proper instrument of transfer; and
(c) the Company and the Rights Agent may deem and treat the Person in
whose name the Right
Certificate (or, prior to the Distribution Date, the associated 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 Common Shares
certificate 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 17. Right Certificate Holder Not Deemed a Stockholder. No
holder, as such, of any Right
Certificate shall be entitled to vote, receive dividends or be deemed for any
purpose the holder of
the Preferred Shares or any other securities of the Company which may at
any time be issuable on
the exercise of the Rights represented thereby, nor shall anything
contained herein or in any Right
Certificate be construed to confer upon the holder of any Right
Certificate, as such, any of the
rights of a stockholder of the Company or any right to vote for the election
of directors or upon any
matter submitted to stockholders at any meeting thereof, or to give or
withhold consent to any
corporate action, or to receive notice of meetings or other actions affecting
stockholders (except as
provided in Section 25 hereof), or to receive dividends or subscription
rights, or otherwise, until the
Right or Rights evidenced by such Right Certificate shall have been
exercised in accordance with
the provisions hereof.
Section 18. Concerning the Rights Agent. 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 by the Rights Agent in the administration and execution of this
Agreement and the
exercise and performance of its duties hereunder. The Company also
agrees to indemnify the
Rights Agent for, and to hold it harmless against, any loss, liability,
obligation, damage or expense
(including reasonable attorneys' fees and other professional services)
(collectively, "Losses"),
incurred without negligence, bad faith or willful misconduct on the part of
the Rights Agent, for
anything done or omitted by the Rights Agent in connection with the
acceptance and administration
of this Agreement, including, without limitation, the costs and expenses of
defending against any
claim of liability in the premises.
The Rights Agent shall be protected and shall incur no liability and shall
be indemnified for and
held harmless against any and all Losses for, or in respect of, any action
taken, suffered or omitted
by it in connection with, its administration of this Agreement (i) in
reliance upon any Right
Certificate or certificate for the Preferred Shares or 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, or (ii) otherwise upon the advice of counsel as set forth
in Section 20 hereof.
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 19. Merger or Consolidation or Change of Name of Rights
Agent. Any corporation or
other Person into which the Rights Agent or any successor Rights Agent
may be merged or with
which it may be consolidated, or any corporation or other Person resulting
from any merger or
consolidation to which the Rights Agent or any successor Rights Agent
shall be a party, or any
corporation or other Person 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
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 or other Person would be
eligible for appointment as
a successor Rights Agent under the provisions of Section 21 hereof. In
case at the time such
successor Rights Agent shall succeed to the agency created by this
Agreement, any of the Right
Certificates shall have been countersigned but not delivered, any such
successor Rights Agent may
adopt the countersignature of 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
Agreement.
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
Agreement.
Section 20. Duties of Rights Agent. The Rights Agent undertakes the
duties and obligations
imposed by this Agreement upon the following terms and conditions, by
all of which the Company
and the holders of Right Certificates, by their acceptance thereof, shall be
bound:
(a) The Rights Agent may consult with legal counsel (who may be legal
counsel for the Company),
and the opinion of such counsel shall be full and complete authorization
and protection to the
Rights Agent as to any action taken or omitted by it in good faith and in
accordance with or in
reliance on such opinion.
(b) Whenever in the performance of its duties under this Agreement the
Rights Agent shall deem it
necessary or desirable that any fact or matter be proved or established by
the Company prior to
taking, suffering or omitting 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 in form reasonably satisfactory to the Rights
Agent signed by any one
of the Chairman of the Board, the Chief Executive Officer, the President,
any 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,
suffered or omitted to be taken
in good faith by it under the provisions of this Agreement in reliance upon
such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any
other Person only for its
own negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of the
statements of fact or recitals
contained in this Agreement or in the Right Certificates (except its
countersignature thereof) or be
required to verify the same, but all such statements and recitals are and
shall be deemed to have
been made by the Company only.
(e) The Rights Agent shall not be under any responsibility in respect of
the validity of this
Agreement or the execution and delivery hereof (except the due execution
hereof by the Rights
Agent) or in respect of the validity or execution of any Right Certificate
(except its
countersignature thereof); nor shall it be responsible for any breach by the
Company of any
covenant or condition contained in this Agreement or in any Right
Certificate; nor shall it be
responsible for any change in the exercisability of the Rights (including
the Rights becoming void
pursuant to Section 11(a)(ii) hereof) or any adjustment in the terms of the
Rights (including the
manner, method or amount thereof) provided for in this Agreement, or the
ascertaining of the
existence of facts that would require any such change or adjustment
(except with respect to the
exercise of Rights evidenced by Right Certificates after actual notice that
such change or
adjustment is required); nor shall it be responsible for any determination
of the market value of the
Rights or any Common Shares of the Company pursuant to the provisions
hereof; 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 to be issued pursuant to this
Agreement or any Right
Certificate or as to whether any Preferred Shares will, when issued, be
validly authorized and
issued, fully paid and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge and
deliver or cause to be
performed, executed, acknowledged and delivered all such further and
other acts, instruments and
assurances as may reasonably be required by the Rights Agent for the
carrying out or performing
by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the
performance of its duties hereunder from any one of the Chairman of the
Board, the Chief
Executive Officer, 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 or omitted by it in
good faith in accordance
with instructions of any such officer or for any delay in acting while
waiting for those instructions.
(h) The Rights Agent and any stockholder, director, officer or employee
of the Rights Agent may
buy, sell or deal in any of the Rights or other securities of the Company or
become pecuniarily
interested in any transaction in which the Company may be interested, or
contract with or lend
money to the Company or otherwise act as fully and freely as though it
were not Rights Agent
under this Agreement. Nothing herein shall preclude the Rights Agent
from acting in any other
capacity for the Company or for any other legal entity.
(i) The Rights Agent may execute and exercise any of the rights or
powers hereby vested in it or
perform any duty hereunder either itself or by or through its attorneys or
agents, and the Rights
Agent shall not be answerable or accountable for any act, default, neglect
or misconduct of any
such attorneys or agents or for any loss to the Company resulting from
any such act, default,
neglect or misconduct, provided reasonable care was exercised in the
selection and continued
employment thereof.
(j) No provision of this Agreement shall require the Rights Agent to
expend or risk its own funds
or otherwise incur any financial liability in the performance of any of its
duties hereunder or in the
exercise of its rights if there shall be reasonable grounds for believing that
repayment of such funds
or adequate indemnification against such risk or liability is not reasonably
assured to it.
Section 21. Change of Rights Agent. The Rights Agent or any successor
Rights Agent may resign
and be discharged from its duties under this Agreement upon thirty (30)
days' notice in writing
mailed to the Company and to each transfer agent of the Common Shares
of the Company or
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 thirty
(30) days' notice in writing, mailed to the Rights Agent or successor
Rights Agent, as the case may
be, and to each transfer agent of the Common Shares of the Company or
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 thirty (30) days after giving notice of such
removal or after it has
been notified in writing of such resignation or incapacity by the resigning
or incapacitated Rights
Agent or by the holder of a Right Certificate (who shall, with such notice,
submit such holder's
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 any state
of the United States (so long as such corporation is authorized to do
business as a banking
institution under such laws), in good standing, which is authorized under
such laws to exercise
corporate trust or stock transfer powers and is subject to supervision or
examination by federal or
state authorities and which has at the time of its appointment as Rights
Agent a combined capital
and surplus of at least $50 million. 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 of the Company
or Preferred Shares, and mail a notice thereof in writing to the registered
holders of the Right
Certificates. Failure to appoint a successor Rights Agent or to give any
notice provided for in this
Section 21, however, or any defect therein, shall not affect the legality or
validity of the resignation
or removal of the Rights Agent or the appointment of the successor Rights
Agent, as the case may
be.
Section 22. Issuance of New Right Certificates. Notwithstanding any of
the provisions of this
Agreement or of the Rights to the contrary, the Company may, at its
option, issue new Right
Certificates evidencing Rights in such form as may be approved by its
Board of Directors to reflect
any adjustment or change in the Purchase Price and the number or kind or
class of shares or other
securities or property purchasable under the Right Certificates made in
accordance with the
provisions of this Agreement.
Section 23. Redemption. (a) The Board of Directors of the Company
may, at its option, at any
time prior to such time as any Person becomes an Acquiring Person,
redeem all but not less than all
the then outstanding Rights at a redemption price of $.01 per Right,
appropriately adjusted to
reflect any stock split, stock dividend or similar transaction occurring
after the date hereof (such
redemption price being hereinafter referred to as the "Redemption Price").
The redemption of the
Rights by the Board of Directors may be made effective at such time, on
such basis and with such
conditions as the Board of Directors in its sole discretion may establish.
(b) Immediately upon the action of the Board of Directors of the
Company ordering the
redemption of the Rights pursuant to paragraph (a) of this Section 23, 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. The Company shall
promptly give public notice of any such redemption; provided, however,
that the failure to give, or
any defect in, any such notice shall not affect the validity of such
redemption. Within ten (10) days
after such action of the Board of Directors ordering the redemption of the
Rights, the Company
shall mail a notice of redemption to all the holders of the then outstanding
Rights at their last
addresses as they appear upon the registry books of the Rights Agent or,
prior to the Distribution
Date, on the registry books of the transfer agent for the Common Shares
of the Company. Any
notice which is mailed in the manner herein provided shall be deemed
given, whether or not the
holder receives the notice. Each such notice of redemption will state the
method by which the
payment of the Redemption Price will be made. Neither the Company nor
any of its Affiliates or
Associates may redeem, acquire or purchase for value any Rights at any
time in any manner other
than that specifically set forth in this Section 23 or in Section 24 hereof,
and other than in
connection with the purchase of Common Shares of the Company prior to
the Distribution Date.
Section 24. Exchange. (a) The Board of Directors of the Company may,
at its option, at any time
after any Person becomes an Acquiring Person, exchange all or part of the
then outstanding and
exercisable Rights (which shall not include Rights that have become void
pursuant to the
provisions of Section 11(a)(ii) hereof) for Common Shares of the
Company at an exchange ratio of
one Common Share per Right, appropriately adjusted to reflect any stock
split, stock dividend or
similar transaction occurring after the date hereof (such exchange ratio
being hereinafter referred to
as the "Exchange Ratio"). Notwithstanding the foregoing, the Board of
Directors shall not be
empowered to effect such exchange at any time after any Person (other
than the Company, any
Subsidiary of the Company, any employee benefit plan of the Company or
any such Subsidiary, or
any entity holding Common Shares of the Company for or pursuant to the
terms of any such plan),
together with all Affiliates and Associates of such Person, becomes the
Beneficial Owner of 50%
or more of the Common Shares of the Company then outstanding.
(b) Immediately upon the action of the Board of Directors of the
Company ordering the exchange
of any Rights pursuant to paragraph (a) of this Section 24 and without
any further action and
without any notice, the right to exercise such Rights shall terminate and
the only right thereafter of
a holder of such Rights shall be to receive that number of Common Shares
of the Company equal
to the number of such Rights held by such holder multiplied by the
Exchange Ratio. The Company
shall promptly give public notice of any such exchange; provided,
however, that the failure to give,
or any defect in, such notice shall not affect the validity of such exchange.
The Company promptly
shall mail a notice of any such exchange to all of the holders of such
Rights at their last addresses
as they appear upon the registry books of the Rights Agent. Any notice
which is mailed in the
manner herein provided shall be deemed given, whether or not the holder
receives the notice. Each
such notice of exchange will state the method by which the exchange of
the Common Shares of the
Company for Rights will be effected and, in the event of any partial
exchange, the number of
Rights which will be exchanged. Any partial exchange shall be effected
pro rata based on the
number of Rights (other than Rights which have become void pursuant to
the provisions of Section
11(a)(ii) hereof) held by each holder of Rights.
(c) In the event that there shall not be sufficient Common Shares of the
Company issued but not
outstanding or authorized but unissued to permit any exchange of Rights
as contemplated in
accordance with this Section 24, the Company shall take all such action as
may be necessary to
authorize additional Common Shares of the Company for issuance upon
exchange of the Rights.
In the event the Company shall, after good faith effort, be unable to take
all such action as may be
necessary to authorize such additional Common Shares of the Company,
the Company shall
substitute, for each Common Share of the Company that would otherwise
be issuable upon
exchange of a Right, a number of Preferred Shares or fraction thereof
such that the current per
share market price of one Preferred Share multiplied by such number or
fraction is equal to the
current per share market price of one Common Share of the Company as
of the date of issuance of
such Preferred Shares or fraction thereof.
(d) The Company shall not be required to issue fractions of Common
Shares of the Company or to
distribute certificates which evidence fractional Common Shares of the
Company. In lieu of such
fractional Common Shares, the Company shall pay to the registered
holders of the Right
Certificates with regard to which such fractional Common Shares of the
Company would otherwise
be issuable an amount in cash equal to the same fraction of the current
market value of a whole
Common Share of the Company. For the purposes of this paragraph (d),
the current market value
of a whole Common Share shall be the closing price of a Common Share
of the Company (as
determined pursuant to the second sentence of Section 11(d)(i) hereof) for
the Trading Day
immediately prior to the date of exchange pursuant to this Section 24.
Section 25. Notice of Certain Events. (a) In case the Company shall
propose (i) to pay any
dividend payable in stock of any class to the holders of its Preferred
Shares or to make any other
distribution to the holders of its Preferred Shares (other than a regular
quarterly cash dividend), (ii)
to offer to the holders of its Preferred Shares rights or warrants to
subscribe for or to purchase any
additional Preferred Shares or shares of stock of any class or any other
securities, rights or options,
(iii) to effect any reclassification of its Preferred Shares (other than a
reclassification involving
only the subdivision of outstanding Preferred Shares), (iv) to effect any
consolidation or merger
into or with, or to effect any sale or other transfer (or to permit one or
more of its Subsidiaries to
effect any sale or other transfer), in one or more transactions, of 50% or
more of the assets or
earning power of the Company and its Subsidiaries (taken as a whole) to,
any other Person, (v) to
effect the liquidation, dissolution or winding up of the Company, or (vi) to
declare or pay any
dividend on the Common Shares of the Company payable in Common
Shares of the Company or to
effect a subdivision, combination or consolidation of the Common Shares
of the Company (by
reclassification or otherwise than by payment of dividends in Common
Shares of the Company),
then, in each such case, the Company shall give to each holder of a Right
Certificate, in accordance
with Section 26 hereof, a notice of such proposed action, which shall
specify the record date for the
purposes of such stock dividend, or distribution of rights or warrants, or
the date on which such
reclassification, consolidation, merger, sale, transfer, liquidation,
dissolution, or winding up is to
take place and the date of participation therein by the holders of the
Common Shares of the
Company and/or Preferred Shares, if any such date is to be fixed, and
such notice shall be so given
in the case of any action covered by clause (i) or (ii) above at least ten
(10) days prior to the record
date for determining holders of the Preferred Shares for purposes of such
action, and in the case of
any such other action, at least ten (10) days prior to the date of the taking
of such proposed action
or the date of participation therein by the holders of the Common Shares
of the Company and/or
Preferred Shares, whichever shall be the earlier.
(b) In case the event set forth in Section 11(a)(ii) hereof shall occur, then
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 event, which notice shall
describe such event and the
consequences of such event to holders of Rights under Section 11(a)(ii)
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 Peak Technologies Group, Inc.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Secretary
Subject to the provisions of Section 21 hereof, any notice or demand
authorized by this Agreement
to be given or made by the Company or by the holder of any 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:
ChaseMellon Shareholder Services
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx
Notices or demands authorized by this Agreement to be given or made by
the Company or the
Rights Agent to the holder of any Right Certificate shall be sufficiently
given or made if sent by
first-class mail, postage prepaid, addressed to such holder at the address
of such holder as shown
on the registry books of the Company.
Section 27. Supplements and Amendments. The Company may from
time to time and the Rights
Agent shall, if the Company so directs, supplement or amend this
Agreement without the approval
of any holders of Right Certificates in order to cure any ambiguity, to
correct or supplement any
provision contained herein which may be defective or inconsistent with
any other provisions herein,
or to make any other provisions with respect to the Rights which the
Company may deem
necessary or desirable, any such supplement or amendment to be
evidenced by a writing signed by
the Company and the Rights Agent; provided, however, that from and
after such time as any
Person becomes an Acquiring Person, this Agreement shall not be
amended in any manner which
would adversely affect the interests of the holders of Rights (other than
any Acquiring Person and
its Affiliates and Associates). Without limiting the foregoing, the
Company may at any time prior
to such time as any Person becomes an Acquiring Person amend this
Agreement to (a) lower the
thresholds set forth in Sections 1(a) and 3(a) hereof to not less than the
greater of (i) the largest
percentage of the outstanding Common Shares of the Company then
known by the Company to be
beneficially owned by any Person (other than the Company, any
Subsidiary of the Company, any
employee benefit plan of the Company or any Subsidiary of the Company,
or any entity holding
Common Shares of the Company for or pursuant to the terms of any such
plan) and (ii) 10%, (b)
fix a Final Expiration Date later than the date set forth in Section 7
hereof, (c) reduce the
Redemption Price or (d) increase the Purchase Price.
Section 28. Successors. All the covenants and provisions of this
Agreement by or for the benefit
of the Company or the Rights Agent shall bind and inure to the benefit of
their respective
successors and assigns hereunder.
Section 29. Benefits of this Agreement. Nothing in this Agreement shall
be construed to give to
any Person other than the Company, the Rights Agent and the registered
holders of the Right
Certificates (and, prior to the Distribution Date, the Common Shares of
the Company) any legal or
equitable right, remedy or claim under this Agreement; but this Agreement
shall be for the sole and
exclusive benefit of the Company, the Rights Agent and the registered
holders of the Right
Certificates (and, prior to the Distribution Date, the Common Shares of
the Company).
Section 30. Severability. If any term, provision, covenant or restriction
of this Agreement is held
by a court of competent jurisdiction or other authority to be invalid, void
or unenforceable, the
remainder of the terms, provisions, covenants and restrictions of this
Agreement shall remain in full
force and effect and shall in no way be affected, impaired or invalidated.
Section 31. Governing Law. This Agreement and each Right Certificate
issued hereunder shall be
deemed to be a contract made under the laws of the State of Delaware and
for all purposes shall be
governed by and construed in accordance with the laws of such State
applicable to contracts to be
made and performed entirely within such State, except that Sections 18,
19, 20 & 21 relating to the
rights, duties and obligations of the Rights Agent shall be governed by the
laws of the State of New
York without reference to the choice of law provisions thereof.
Section 32. Counterparts. This Agreement may be executed in any
number of counterparts and
each of such counterparts shall for all purposes be deemed to be an
original, and all such
counterparts shall together constitute but one and the same instrument.
Section 33. Descriptive Headings. Descriptive headings of the several
Sections of this Agreement
are inserted for convenience only and shall not control or affect the
meaning or construction of any
of the provisions hereof.
Section 34. Administration. The Board of Directors of the Company
shall have the exclusive
power and authority to administer and interpret the provisions of this
Agreement and to exercise all
rights and powers specifically granted to the Board of Directors of the
Company or to the
Company or as may be necessary or advisable in the administration of this
Agreement. All such
actions, calculations, determinations and interpretations which are done or
made by the Board of
Directors of the Company in good faith shall be final, conclusive and
binding on the Company, the
Rights Agent, the holders of the Rights and all other parties and shall not
subject the Board of
Directors of the Company to any liability to the holders of the Rights.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and
attested, all as of the day and year first above written.
THE PEAK TECHNOLOGIES GROUP, INC.
Attest: /s/ Xxxxxx X. Xxxxxxx Attest: /s/ Xxxxxxxx X.X.Xxxx
------------------ ----------------------
Title: Executive Vice-President Title: CEO
Chief Financial Officer,
Secretary
CHASEMELLON SHAREHOLDER SERVICES
Attest: /s/ Xxxxxx Xxxxx Attest: /s/Xxxxx Xxxxxx
------------------------ ------------------
Title: Vice-President Title: Vice-President
Exhibit A
FORM
of
CERTIFICATE OF DESIGNATIONS
of
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
of
THE PEAK TECHNOLOGIES GROUP, INC.
(Pursuant to Section 151 of the
Delaware General Corporation Law)
-----------------------------------------------------
The Peak Technologies Group, Inc., a corporation organized and existing
under the General
Corporation Law of the State of Delaware (hereinafter called the
"Corporation"), hereby certifies
that the following resolution was adopted by the Board of Directors of the
Corporation as required
by Section 151 of the General Corporation Law by unanimous written
consent dated March 27,
1997:
RESOLVED, that pursuant to the authority granted to and vested in the
Board of Directors of this
Corporation (hereinafter called the "Board of Directors" or the "Board") in
accordance with the
provisions of the Restated Certificate of Incorporation of the Corporation,
the Board of Directors
hereby creates a series of Preferred Stock, par value $.01 per share (the
"Preferred Stock"), of the
Corporation and hereby states the designation and number of shares, and
fixes the relative rights,
preferences, and limitations thereof as follows:
Series A Junior Participating Preferred Stock:
Section 1. Designation and Amount. The shares of this series shall be
designated as "Series A
Junior Participating Preferred Stock" (the "Series A Preferred Stock") and
the number of shares
constituting the Series A Preferred Stock shall be One Hundred Thousand
(100,000). Such
number of shares may be increased or decreased by resolution of the
Board of Directors; provided,
that no decrease shall reduce the number of shares of Series A Preferred
Stock to a number less
than the number of shares then outstanding plus the number of shares
reserved for issuance upon
the exercise of outstanding options, rights or warrants or upon the
conversion of any outstanding
securities issued by the Corporation convertible into Series A Preferred
Stock.
Section 2. Dividends and Distributions.
(A) Subject to the rights of the holders of any shares of any series of
Preferred Stock (or any
other stock) ranking prior and superior to the Series A Preferred Stock
with respect to dividends,
the holders of shares of Series A Preferred Stock, in preference to the
holders of Common Stock,
par value $.01 per share (the "Common Stock"), of the Corporation, and
of any other junior stock,
shall be entitled to receive, when, as and if declared by the Board of
Directors out of funds legally
available for the purpose, quarterly dividends payable in cash on the 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 fraction of a share of Series A Preferred Stock,
in an amount per share
(rounded to the nearest cent) equal to the greater of (a) $1 or (b) subject to
the provision for
adjustment hereinafter set forth, 100 times the aggregate per share amount
of all cash dividends,
and 100 times the aggregate per share amount (payable in kind) of all non-
cash dividends or other
distributions, other than a dividend payable in shares of Common Stock or
a subdivision of the
outstanding shares of Common Stock (by reclassification or otherwise),
declared on the Common
Stock since the immediately preceding Quarterly Dividend Payment Date
or, with respect to the
first Quarterly Dividend Payment Date, since the first issuance of any
share or fraction of a share
of Series A Preferred Stock. In the event the Corporation shall at any
time declare or pay any
dividend on the Common Stock payable in shares of Common Stock, or
effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock
(by reclassification or
otherwise than by payment of a dividend in shares of Common Stock) into
a greater or lesser
number of shares of Common Stock, then in each such case the amount to
which holders of shares
of Series A Preferred Stock were entitled immediately prior to such event
under clause (b) of the
preceding sentence shall be adjusted by multiplying such amount by a
fraction, the numerator of
which is the number of shares of Common Stock outstanding immediately
after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately
prior to such event.
(B) The Corporation shall declare a dividend or distribution on the Series
A Preferred Stock as
provided in paragraph (A) of this Section immediately after it declares a
dividend or distribution on
the Common Stock (other than a dividend payable in shares of Common
Stock); provided that, in
the event no dividend or distribution shall have been declared on the
Common Stock during the
period between any Quarterly Dividend Payment Date and the next
subsequent Quarterly Dividend
Payment Date, a dividend of $1 per share on the Series A Preferred Stock
shall nevertheless be
payable on such subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A
Preferred Stock from the Quarterly Dividend Payment Date next
preceding the date of issue of
such shares, unless the date of issue of such shares is prior to the record
date for the first Quarterly
Dividend Payment Date, in which case dividends on such shares shall
begin to accrue from the date
of issue of such shares, or unless the date of issue is a Quarterly Dividend
Payment Date or is a
date after the record date for the determination of holders of shares of
Series A Preferred Stock
entitled to receive a quarterly dividend and before such Quarterly
Dividend Payment Date, in either
of which events such dividends shall begin to accrue and be cumulative
from such Quarterly
Dividend Payment Date. Accrued but unpaid dividends shall not bear
interest. Dividends paid on
the shares of Series A Preferred Stock in an amount less than the total
amount of such dividends at
the time accrued and payable on such shares shall be allocated pro rata on
a share-by-share basis
among all such shares at the time outstanding. The Board of Directors
may fix a record date for
the determination of holders of shares of Series A Preferred Stock entitled
to receive payment of a
dividend or distribution declared thereon, which record date shall be not
more than 60 days prior to
the date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series A Preferred
Stock shall have the
following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth, each
share of Series A Preferred
Stock shall entitle the holder thereof to 100 votes on all matters submitted
to a vote of the
stockholders of the Corporation. In the event the Corporation shall at any
time declare or pay any
dividend on the Common Stock payable in shares of Common Stock, or
effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock
(by reclassification or
otherwise than by payment of a dividend in shares of Common Stock) into
a greater or lesser
number of shares of Common Stock, then in each such case the number of
votes per share to which
holders of shares of Series A Preferred Stock were entitled immediately
prior to such event shall be
adjusted by multiplying such number by a fraction, the numerator of
which is the number of shares
of Common Stock outstanding immediately after such event and the
denominator of which is the
number of shares of Common Stock that were outstanding immediately
prior to such event.
(B) Except as otherwise provided herein, in any other Certificate of
Designations creating a series
of Preferred Stock or any similar stock, in the Restated Certificate of
Incorporation of the
Corporation or by law, the holders of shares of Series A Preferred Stock
and the holders of shares
of Common Stock and any other capital stock of the Corporation having
general voting rights shall
vote together as one class on all matters submitted to a vote of
stockholders of the Corporation.
(C) Except as set forth herein, or as otherwise provided by 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 Common Stock as set forth
herein) for taking any
corporate action.
Section 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, or make any other distributions, on 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, 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
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 junior
(either as to dividends or upon liquidation, dissolution or winding up) to
the Series A Preferred
Stock, provided that the Corporation may at any time redeem, purchase or
otherwise acquire shares
of any such junior stock in exchange for shares of any stock of the
Corporation ranking junior (as
to dividends and upon dissolution, liquidation or winding up) to the Series
A Preferred Stock; or
(iv) redeem or 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 paragraph (A) of this Section 4, purchase or otherwise acquire such
shares at such time and
in such manner.
Section 5. 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 cancellation
become authorized but
unissued shares of Preferred Stock and may be reissued as part of a new
series of Preferred Stock
subject to the conditions and restrictions on issuance set forth herein, in
the Restated Certificate of
Incorporation, or in any other Certificate of Designations creating a series
of Preferred Stock or
any similar stock or as otherwise required by law.
Section 6. Liquidation, Dissolution or Winding Up. Upon any liquidation,
dissolution or winding
up of the Corporation, no distribution shall be made (1) to the holders of
shares of stock ranking
junior (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 $100 per share, plus
an amount equal to accrued and unpaid dividends and distributions
thereon, whether or not
declared, to the date of such payment, provided that the holders of shares
of Series A Preferred
Stock shall be entitled to receive an aggregate amount per share, subject to
the provision for
adjustment hereinafter set forth, equal to 100 times the aggregate amount
to be distributed per
share to holders of shares of Common Stock, or (2) to the holders of
shares of stock ranking on a
parity (upon liquidation, dissolution or winding up) with the Series A
Preferred Stock, except
distributions made ratably on the Series A Preferred Stock and all 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. In the event the Corporation shall at any time
declare or pay any
dividend on the Common Stock payable in shares of Common Stock, or
effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock
(by reclassification or
otherwise than by payment of a dividend in shares of Common Stock) into
a greater or lesser
number of shares of Common Stock, then in each such case the aggregate
amount to which holders
of shares of Series A Preferred Stock were entitled immediately prior to
such event under the
proviso in clause (1) of the preceding sentence shall be adjusted by
multiplying such amount by a
fraction the numerator of which is the number of shares of Common Stock
outstanding
immediately after such event and the denominator of which is the number
of shares of Common
Stock that were outstanding immediately prior to such event.
Section 7. Consolidation, Merger, etc. In case the Corporation shall enter
into any consolidation,
merger, combination or other transaction in which the shares of Common
Stock are exchanged for
or changed into other stock or securities, cash and/or any other property,
then in any such case
each share of Series A Preferred Stock shall at the same time be similarly
exchanged or changed
into an amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 100
times the aggregate amount of stock, securities, cash and/or any other
property (payable in kind),
as the case may be, into which or for which each share of Common Stock
is changed or exchanged.
In the event the Corporation shall at any time declare or pay any dividend
on the Common Stock
payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise
than by payment of a
dividend in shares of Common Stock) into a greater or lesser number of
shares of Common Stock,
then in each such case the amount set forth in the preceding sentence with
respect to the exchange
or change of shares of Series A Preferred Stock shall be adjusted by
multiplying such amount by a
fraction, the numerator of which is the number of shares of Common
Stock outstanding
immediately after such event and the denominator of which is the number
of shares of Common
Stock that were outstanding immediately prior to such event.
Section 8. No Redemption. The shares of Series A Preferred Stock shall
not be redeemable.
Section 9. Rank The Series A Preferred Stock shall rank, with respect to
the payment of
dividends and the distribution of assets, junior to all series of any other
class of Preferred Stock.
Section 10. Amendment. The Restated Certificate of Incorporation of the
Corporation shall not be
amended in any manner which would materially alter or change the
powers, preferences or special
rights of the Series A Preferred Stock so as to affect them adversely
without the affirmative vote of
the holders of at least two-thirds of the outstanding shares of Series A
Preferred Stock, voting
together as a single class.
IN WITNESS WHEREOF, The Peak Technologies Group, Inc. has
caused this Certificate of
Designations of Series A Junior Participating Preferred Stock to be duly
executed by its Chairman
of the Board this 27th day of March, 1997.
THE PEAK TECHNOLOGIES GROUP, INC.
/s/ Xxxxxxxx X.X. Xxxx
----------------------------
Chairman of the Board
Exhibit B
Form of Right Certificate
Certificate No. R- --------------------- Rights
NOT EXERCISABLE AFTER MARCH 28, 2007 OR EARLIER IF
REDEMPTION OR
EXCHANGE OCCURS. THE RIGHTS ARE SUBJECT TO
REDEMPTION AT $.01 PER
RIGHT AND TO EXCHANGE ON THE TERMS SET FORTH IN
THE RIGHTS
AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, AS SET
FORTH IN THE RIGHTS
AGREEMENT, RIGHTS OWNED BY ANY PERSON WHO IS OR
BECOMES AN
ACQUIRING PERSON (AS DEFINED IN THE RIGHTS
AGREEMENT) SHALL BECOME
NULL AND VOID.
Right Certificate
THE PEAK TECHNOLOGIES GROUP, INC.
This certifies that------------------, or registered assigns, is the registered
owner of the number of
Rights set forth above, each of which entitles the owner thereof, subject to
the terms, provisions
and conditions of the Rights Agreement, dated as of March 28, 1997 (the
"Rights Agreement"),
between The Peak Technologies Group, Inc., a Delaware corporation (the
"Company"), and
ChaseMellon Shareholder Services (the "Rights Agent"), to purchase from
the Company at any
time after the Distribution Date (as such term is defined in the Rights
Agreement) and prior to 5:00
P.M., Eastern time, on March 28, 2007 at the principal office of the
Rights Agent, or at the office
of its successor as Rights Agent, one one-hundredth of a fully paid non-
assessable share of Series
A Junior Participating Preferred Stock, par value $.01 per share (the
"Preferred Shares"), of the
Company, at a purchase price of $80 per one one-hundredth of a Preferred
Share (the "Purchase
Price"), upon presentation and surrender of this Right Certificate with the
Form of Election to
Purchase duly executed. The number of Rights evidenced by this Right
Certificate (and the
number of one one-hundredths of a Preferred Share which may be
purchased upon exercise hereof)
set forth above, and the Purchase Price set forth above, are the number
and Purchase Price as of
April 10, 1997, based on the Preferred Shares as constituted at such date.
As provided in the
Rights Agreement, the Purchase Price and the number of one one-
hundredths of a Preferred Share
which may be purchased upon the exercise of the Rights evidenced by this
Right Certificate are
subject to modification and adjustment upon the happening of certain
events.
This Right Certificate is subject to all of the terms, provisions and
conditions of the Rights
Agreement, which terms, provisions and conditions are hereby
incorporated herein by reference and
made a part hereof and to which Rights Agreement reference is hereby
made for a full description
of the rights, limitations of rights, obligations, duties and immunities
hereunder of the Rights
Agent, the Company and the holders of the Right Certificates. Copies of
the Rights Agreement are
on file at the principal executive offices of the Company and the above-
mentioned offices of the
Rights Agent.
This Right Certificate, with or without other Right Certificates, upon
surrender at the principal
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 of
Preferred 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 receive upon surrender hereof another Right
Certificate or Right
Certificates for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights evidenced
by this Certificate (i) may
be redeemed by the Company at a redemption price of $.01 per Right or
(ii) may be exchanged in
whole or in part for Preferred Shares or shares of the Company's Common
Stock, par value $.01
per share.
No fractional Preferred Shares will be issued upon the exercise of any
Right or Rights evidenced
hereby (other than fractions which are integral multiples of one one-
hundredth of a Preferred
Share, which may, at the election of the Company, be evidenced by
depositary receipts), but in lieu
thereof a cash payment will be made, as provided in the Rights
Agreement.
No holder of this Right Certificate shall be entitled to vote or receive
dividends or be deemed for
any purpose the holder of 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
stockholder of the Company or any right to vote for the election of
directors or upon any matter
submitted to stockholders at any meeting thereof, or to give or withhold
consent to any corporate
action, or to receive notice of meetings or other actions affecting
stockholders (except as provided
in the Rights Agreement), or to receive dividends or subscription rights, or
otherwise, until the
Right or Rights evidenced by this Right Certificate shall have been
exercised as provided in the
Rights Agreement.
This Right Certificate shall not be valid or obligatory for any purpose
until it shall have been
countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the Company
and its corporate seal.
Dated as of -------------------, -------------.
ATTEST:
THE PEAK TECHNOLOGIES GROUP, INC.
-----------------------------------------------------
By--------------------------------
Countersigned:
[Rights Agent]
By__________________________________
Authorized Signature
Form of Reverse Side of Right Certificate
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Right Certificate.)
FOR VALUE RECEIVED --------------------------------------- hereby sells,
assigns and transfers
unto -------------------------------------------------------------------------
------------------------------
--------------------------------------(Please print name and address of
transferee)
-----------------------------------------------------------------------------
------------------------------
------------------------------------------
this Right Certificate, together with all right,title and interest therein, and
does hereby irrevocably
constitute and appoint --------------------------------------- Attorney, to
transfer the within Right
Certificate on the books of the within-named Company, with full power of
substitution.
Dated: -------------------, -----------------
------------------------------------------------------
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered national
securities exchange, a
member of the National Association of Securities Dealers, Inc., or a
commercial bank or trust
company having an office or correspondent in the United States.
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
The undersigned hereby certifies that the Rights evidenced by this Right
Certificate are not
beneficially owned by an Acquiring Person or an Affiliate or Associate
thereof (as defined in the
Rights Agreement).
-------------------------------------------------
Signature
-----------------------------------------------------------------------------
Form of Reverse Side of Right Certificate -- continued
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to exercise
Rights represented by the Right Certificate.)
To: THE PEAK TECHNOLOGIES GROUP, INC.
The undersigned hereby irrevocably elects to exercise ------------------------
------------Rights
represented by this Right Certificate to purchase the Preferred Shares
issuable upon the exercise of
such Rights and requests that certificates for such Preferred Shares be
issued in the name of:
Please insert social security
or other identifying number
-------------------------------------------------------------------------
(Please print name and address)
-------------------------------------------------------------------------
If such number of Rights shall not be all the Rights evidenced by this
Right Certificate, a new
Right Certificate for the balance remaining of such Rights shall be
registered in the name of and
delivered to:
Please insert social security
or other identifying number
-------------------------------------------------------------------------
(Please print name and address)
-------------------------------------------------------------------------
Dated:----------------------, -----------
-------------------------
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered national
securities exchange, a
member of the National Association of Securities Dealers, Inc., or a
commercial bank or trust
company having an office or correspondent in the United States.
Form of Reverse Side of Right Certificate -- continued
---------------------------------------------------------------------------
The undersigned hereby certifies that the Rights evidenced by this Right
Certificate are not
beneficially owned by an Acquiring Person or an Affiliate or Associate
thereof (as defined in the
Rights Agreement).
------------------------------------------------------------
Signature
-------------------------------------------------------------
NOTICE
The signature in the Form of Assignment or Form of Election to Purchase,
as the case may be,
must conform to the name as written upon the face of this Right
Certificate in every particular,
without alteration or enlargement or any change whatsoever.
In the event the certification set forth above in the Form of Assignment or
the Form of Election to
Purchase, as the case may be, is not completed, the Company and the
Rights Agent will deem the
beneficial owner of the Rights evidenced by this Right Certificate to be an
Acquiring Person or an
Affiliate or Associate thereof (as defined in the Rights Agreement) and
such Assignment or
Election to Purchase will not be honored.
Exhibit C
UNDER CERTAIN CIRCUMSTANCES, AS SET FORTH IN THE
RIGHTS AGREEMENT,
RIGHTS OWNED BY ANY PERSON WHO IS OR BECOMES AN
ACQUIRING PERSON
(AS DEFINED IN THE RIGHTS AGREEMENT) SHALL BECOME
NULL AND VOID
SUMMARY OF RIGHTS TO PURCHASE
PREFERRED SHARES
On March 27, 1997, the Board of Directors of
The Peak Technologies Group, Inc. (the "Company") declared a dividend
of one preferred share
purchase right (a "Right") for each outstanding share of common stock,
par value $.01 per share
(the "Common Shares"), of the Company. The dividend is payable on
April 10, 1997 (the "Record
Date") to the stockholders of record on that date. Each Right entitles the
registered holder to
purchase from the Company one one-hundredth of a share of Series A
Junior Participating
Preferred Stock, par value $.01 per share (the "Preferred Shares"), of the
Company at a price of
$80 per one one-hundredth of a Preferred Share (the "Purchase Price"),
subject to adjustment. The
description and terms of the Rights are set forth in a Rights Agreement
dated as of March 28, 1997
(the "Rights Agreement") between the Company and ChaseMellon
Shareholder Services, as Rights
Agent (the "Rights Agent").
Until the earlier to occur of (i) 10 days following a public announcement
that a person or group of
affiliated or associated persons have acquired beneficial ownership of
15% (which percentage may
be reduced pursuant to the Rights Agreement) or more of the outstanding
Common Shares of the
Company (an "Acquiring Person") or (ii) 10 business days (or such later
date as may be
determined by action of the Board of Directors prior to such time as any
person or group of
affiliated persons becomes an Acquiring Person) following the
commencement of, or announcement
of an intention to make, a tender offer or exchange offer the
consummation of which would result
in the beneficial ownership by a person or group of 15% (which
percentage may be reduced
pursuant to the Rights Agreement) or more of the outstanding Common
Shares (the earlier of such
dates being called the "Distribution Date"), the Rights will be evidenced,
with respect to any of the
Common Share certificates outstanding as of the Record Date, by such
Common Share certificate
with a copy of this Summary of Rights attached thereto.
The Rights Agreement provides that, until the Distribution Date (or earlier
redemption or
expiration of the Rights), the Rights will be transferred with and only with
the Common Shares.
Until the Distribution Date (or earlier redemption or expiration of the
Rights), new Common Share
certificates issued after the Record Date upon transfer or new issuance of
Common Shares will
contain a notation incorporating the Rights Agreement by reference. Until
the Distribution Date
(or earlier redemption or expiration of the Rights), the surrender for
transfer of any certificates for
Common Shares outstanding as of the Record Date, even without such
notation or a copy of this
Summary of Rights being attached thereto, will also constitute the transfer
of the Rights associated
with the Common Shares represented by such certificate. As soon as
practicable following the
Distribution Date, separate certificates evidencing the Rights ("Right
Certificates") will be mailed
to holders of record of the Common Shares as of the close of business on
the Distribution Date and
such separate Right Certificates alone will evidence the Rights.
The Rights are not exercisable until the Distribution Date. The Rights
will expire on March 28,
2007 (the "Final Expiration Date"), unless the Final Expiration Date is
extended or unless the
Rights are earlier redeemed or exchanged by the Company, in each case,
as described below.
The Purchase Price payable, and the number of Preferred Shares or other
securities or property
issuable, upon exercise of the Rights are subject to adjustment from time
to time to prevent dilution
(i) in the event of a stock dividend on, or a subdivision, combination or
reclassification of, the
Preferred Shares, (ii) upon the grant to holders of the Preferred Shares of
certain rights or warrants
to subscribe for or purchase Preferred Shares at a price, or securities
convertible into Preferred
Shares with a conversion price, less than the then-current market price of
the Preferred Shares or
(iii) upon the distribution to holders of the Preferred Shares of evidences
of indebtedness or assets
(excluding regular periodic cash dividends paid out of earnings or retained
earnings or dividends
payable in Preferred Shares) or of subscription rights or warrants (other
than those referred to
above).
The number of outstanding Rights and the number of one one-hundredths
of a Preferred Share
issuable upon exercise of each Right are also subject to adjustment in the
event of a stock split of
the Common Shares or a stock dividend on the Common Shares payable
in Common Shares or
subdivisions, consolidations or combinations of the Common Shares
occurring, in any such case,
prior to the Distribution Date.
Preferred Shares purchasable upon exercise of the Rights will not be
redeemable. Each Preferred
Share will be entitled to a minimum preferential quarterly dividend
payment of $1 per share but
will be entitled to an aggregate dividend of 100 times the dividend
declared per Common Share. In
the event of liquidation, the holders of the Preferred Shares will be entitled
to a minimum
preferential liquidation payment of $100 per share but will be entitled to
an aggregate payment of
100 times the payment made per Common Share. Each Preferred Share
will have 100 votes,
voting together with the Common Shares. Finally, in the event of any
merger, consolidation or
other transaction in which Common Shares are exchanged, each Preferred
Share will be entitled to
receive 100 times the amount received per Common Share. These rights
are protected by
customary antidilution provisions.
Because of the nature of the Preferred Shares' dividend, liquidation and
voting rights, the value of
the one one-hundredth interest in a Preferred Share purchasable upon
exercise of each Right should
approximate the value of one Common Share.
In the event that any person or group of affiliated or associated persons
becomes an Acquiring
Person, the Rights Agreement provides that proper provision shall be
made so that each holder of a
Right, other than Rights beneficially owned by the Acquiring Person
(which will thereafter be
void), will thereafter have the right to receive (subject to adjustment) upon
exercise that number of
Common Shares having a market value of two times the exercise price of
the Right. At any time
after any person or group becomes an Acquiring Person and prior to the
acquisition by such person
or group of 50% or more of the outstanding Common Shares, the Board
of Directors of the
Company may exchange the Rights (other than Rights owned by such
person or group, which will
have become void), in whole or in part, at an exchange ratio of one
Common Share, or one one-
hundredth of a Preferred Share (or of a share of a class or series of the
Company's preferred stock
having equivalent rights, preferences and privileges), per Right (subject to
adjustment).
The Rights Agreement provides that none of the Company's directors or
officers shall be deemed to
beneficially own any Common Shares owned by any other director or
officer by virtue of such
persons acting in their capacities as such, including in connection with the
formulation and
publication of the Board of Directors recommendation of its position, and
actions taken in
furtherance thereof, with respect to an acquisition proposal relating to the
Company or a tender or
exchange offer for the Common Shares.
In the event that the Company is acquired in a merger or other business
combination transaction or
50% or more of its consolidated assets or earning power are sold after a
person or group has
become an Acquiring Person, proper provision will be made so that each
holder of a Right will
thereafter have the right to receive, upon the exercise thereof at the then
current exercise price of
the Right, that number of shares of common stock of the acquiring
company which at the time of
such transaction will have a market value of two times the exercise price
of the Right.
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative
adjustments require an adjustment of at least 1% in such Purchase Price.
No fractional Preferred
Shares will be issued (other than fractions which are integral multiples of
one one-hundredth of a
Preferred Share, which may, at the election of the Company, be evidenced
by depositary receipts)
and in lieu thereof, an adjustment in cash will be made based on the
market price of the Preferred
Shares on the last trading day prior to the date of exercise.
At any time prior to the acquisition by a person or group of affiliated or
associated persons of
beneficial ownership of 15% (which percentage may be reduced pursuant
to the Rights Agreement)
or more of the outstanding Common Shares, the Board of Directors of the
Company may redeem
the Rights in whole, but not in part, at a price of $.01 per Right (the
"Redemption Price"). The
redemption of the Rights may be made effective at such time on such basis
with such conditions as
the Board of Directors in its sole discretion may establish. Immediately
upon any redemption of
the Rights, the right to exercise the Rights will terminate and the only
right of the holders of Rights
will be to receive the Redemption Price.
The terms of the Rights may be amended by the Board of Directors of the
Company without the
consent of the holders of the Rights, including an amendment to (a) lower
certain thresholds
described above to not less than the greater of (i) and the largest
percentage of the outstanding
Common Shares then known to the Company to be beneficially owned by
any person or group of
affiliated or associated persons and (ii) 10%, (b) fix a Final Expiration
Date later than March 28,
2007, (c) reduce the Redemption Price or (d) increase the Purchase Price,
except that from and
after such time as any person or group of affiliated or associated persons
becomes an Acquiring
Person no such amendment may adversely affect the interests of the
holders of the Rights (other
than the Acquiring Person and its affiliates and associates).
Until a Right is exercised, the holder thereof, as such, will have no rights
as a stockholder of the
Company, including, without limitation, the right to vote or to receive
dividends.
A copy of the Rights Agreement has been filed with the Securities and
Exchange Commission as an
Exhibit to a Registration Statement on Form 8-A dated March 31, 1997.
A copy of the Rights
Agreement is available free of charge from the Company. This summary
description of the Rights
does not purport to be complete and is qualified in its entirety by reference
to the Rights
Agreement, which is hereby incorporated herein by reference.
