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LOUISIANA-PACIFIC CORPORATION
and
FIRST CHICAGO TRUST COMPANY OF NEW YORK
Rights Agent
Rights Agreement
Restated as of February 3, 1991
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TABLE OF CONTENTS
Section Page
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Table of Defined Terms...............................................iii
1 Certain Definitions....................................................1
2 Appointment of Rights Agent............................................4
3 Issuance of Right Certificates.........................................4
4 Form of Right Certificates.............................................6
5 Countersignature and Registration......................................6
6 Transfer, Split Up, Combination and
Exchange of Right Certificates;
Mutilated, Destroyed, Lost or Stolen
Right Certificate......................................................7
7 Exercise of Rights; Purchase Price;
Expiration Date of Rights..............................................8
8 Cancellation and Destruction of
Right Certificates....................................................10
9 Reservation and Availability of
Capital Shares........................................................11
10 Preferred Shares Record Date..........................................12
11 Adjustment of Purchase Price, Number
of Shares or Number of Rights.........................................12
12 Certificate of Adjusted Purchase Price
or Number of Shares...................................................20
13 Consolidation, Merger or Sale or
Transfer of Assets or Earning Power...................................20
14 Fractional Rights and Fractional Shares...............................24
15 Rights of Action......................................................25
16 Agreement of Right Holders............................................26
17 Right Holders and Right Certificate
Holders Not Deemed a Stockholder......................................26
18 Concerning the Rights Agent...........................................27
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Section Page
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19 Merger or Consolidation or Change
of Name of Rights Agent...............................................27
20 Duties of Rights Agent................................................28
21 Change of Rights Agent................................................30
22 Issuance of New Right Certificates....................................31
23 Redemption............................................................32
24 Exchange..............................................................33
25 Notice of Certain Events..............................................34
26 Notices...............................................................35
27 Supplements and Amendments............................................36
28 Certain Covenants.....................................................36
29 Successors............................................................37
30 Benefits of This Agreement............................................37
31 Severability..........................................................37
32 Determinations and Actions by the
Board of Directors, etc...............................................37
33 Governing Law.........................................................38
34 Counterparts..........................................................38
35 Descriptive Headings..................................................38
Exhibit A -- Form of Certificate of Designations
Exhibit B -- Form of Right Certificate
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TABLE OF DEFINED TERMS
Term Defined Page Section
Acquiring Person 1 1(a)
Adjustment Shares 13 11(a)(ii)
Affiliate 2 1(b)
Agreement 1 Intro
Associate 2 1(b)
Beneficial Owner 2 1(c)
Business Day 3 1(d)
Certificate of Designations 1 Intro
close of business 3 1(e)
Common Shares 3 1(f)
common stock equivalents 14 11(a)(iii)
Company (Louisiana-Pacific Corporation) 1 Intro
Company (Following a Section 13(a) event) 21 13(a)
current market value of a whole right
(for purposes of fractional Rights and
fractional shares) 24 14(a)
current market value of one one-hundredth
of a Preferred Share (for purposes of
fractional Rights and fractional shares) 25 14(b)
current per share market price of the
Common Shares 15 11(d)(i)
current per share market price of the
Preferred Shares 16 11(d)(ii)
Distribution Date 5 3(a)
equivalent preferred shares 14 11(b)
Exchange Act 2 1(b)
Exchange Date 8 7(b)
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Term Defined Page Section
Exchange Ratio 33 24(a)
Final Expiration Date 8 7(b)
NASDAQ 16 11(d)(i)
Person 3 1(g)
Plan (Employee Benefit Plan) 1 1(a)
Preferred Shares 3 1(h)
Principal Party 22 13(b)
Purchase Price 3 1(i)
Qualifying Tender Offer 4 1(j)
Record Date 1 Intro
Redemption Date 8 7(b)
Redemption Price 32 23(a)
Registered Common Shares 22 13(b)
Right 1 Intro
Rights Agent 1 Intro
Section 11(a)(ii) event 13 11(a)(ii)
Section 13 event 21 13(a)
Shares Acquisition Date 4 1(k)
Stockholder Rights Plan 4 1
Subsidiary 4 1(1)
Trading Day 16 11(d)(i)
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RIGHTS AGREEMENT
This Rights Agreement (the "Agreement") restated as of February 3,
1991, between LOUISIANA-PACIFIC CORPORATION, a Delaware corporation (the
"Company"), and FIRST CHICAGO TRUST COMPANY OF NEW YORK, a New York corporation
(the "Rights Agent");
W I T N E S S E T H :
WHEREAS the Board of Directors of the Company has authorized the
issuance of and declared a dividend payable, in one right (a "Rights") for each
Common Share (as hereinafter defined) of the Company outstanding on June 6, 1988
(the "Record Date"), upon the terms and subject to the conditions herein set
forth;
WHEREAS each such Right shall represent the right to purchase one
one-hundredth of a share of Series A Junior Participating Cumulative Preferred
Stock, $1 par value, of the Company, and shall have the rights and preferences
set forth in the form of Certificate of Designations, attached hereto as Exhibit
A; and
WHEREAS the Board of Directors of the Company has further authorized
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 defined in
Sections 3 and 7 hereof);
WHEREAS the Company entered into a Rights Agreement dated as of May
23, 1988, with The Chase Manhattan Bank, N.A., as the original Rights Agent,
which agreement was amended as of October 28, 1990, to permit the substitution
of First Chicago Trust Company of New York as successor Rights Agent; and the
Company and said successor Rights Agent have amended and restated the Rights
Agreement as set forth herein.
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 defined) who or
which, together with all Affiliates and Associates (as defined) of such Person,
shall be the Beneficial Owner as defined) of 20 percent or more of the Common
Shares of the Company then outstanding, provided, however, that an Acquiring
Person shall not include (i) the Company, any wholly owned Subsidiary of the
Company any employee benefit plan ("Plan") of the Company or of a Subsidiary of
the Company or any Person holding Common Shares for or pursuant to the terms of
any
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such Plan or (ii) any Person who or which, together with all Affiliates and
Associates of such Person, first became the Beneficial Owner of 20 percent or
more of the Common Shares of the Company as the result of a Qualifying Tender
Offer (as defined). For purposes of this subsection (a), in determining the
percentage of the outstanding shares of Common Shares with respect to which a
Person is the Beneficial Owner (i) all shares as to which such Person is deemed
the Beneficial Owner shall be deemed outstanding and (ii) shares which are
subject to issuance upon the exercise or conversion of outstanding conversion
rights, rights, warrants and options other than those referred to in (i) shall
not be deemed outstanding. Any determination made by the Board of Directors as
to whether any Person is or is not an Acquiring Person shall be conclusive and
binding upon all holders of Rights.
(b) "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as in
effect on the
date hereof.
(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, for purposes of
Section 13(d) of the Exchange Act and Regulation 13D-G thereunder (or any
comparable or successor law or regulation), in each case as in effect on
the date hereof; or
(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 or the fulfillment of a
condition or both) pursuant to any agreement, arrangement or understanding
(other than customary arrangements with and among 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, alone or in concert with
others, pursuant to any agreement, arrangement or understanding; provided,
however, that a Person shall not be deemed the Beneficial Owner of, or to
beneficially own, any security if the agreement,
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arrangement or understanding to vote such security (1) arises solely from
a revocable proxy given to such Person or any of such Person's Affiliates
or Associates in response to a public proxy solicitation made pursuant to,
and in accordance with, the applicable rules and regulations of 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 arrangements with and among underwriters and selling group
members with respect to a bona fide public offering of securities) for the
purpose of acquiring, holding voting (other than voting pursuant to a
revocable proxy as described in the proviso to Section l(c)(ii)(B)) or
disposing of any securities of the Company.
(d) "Business Day" shall mean any day other than a Saturday, Sunday
or a day on which banking institutions in the state of New York are authorized
or obligated by law or executive order to close.
(e) "Close of business" on any given date shall mean 5 p.m., New
York City time, on such date; provided, however, that if such date is not a
Business Day it shall mean 5 p.m., New York City time, on the next succeeding
Business Day.
(f) "Common Shares" when used with reference to the Company shall
mean shares of common stock of the par value of $l each of the Company. "Common
Shares" when used with reference to any Person other than the Company shall mean
shares of the common stock of such Person (or other class of equity securities
or equity interests) having power to control or direct the management of such
Person or, if such Person is a Subsidiary of another Person, of the Person which
ultimately controls such first-mentioned Person and which has issued and
outstanding such common stock (or such other class of equity securities or
equity interests).
(g) "Person" shall mean any individual, firm, partnership,
corporation, association, group (as such term is used in Rule 13d-5 under the
Exchange Act) or other entity, and shall include any successor (by merger or
otherwise) of such entity.
(h) "Preferred Shares" shall mean shares of Series A Junior
Participating Cumulative Preferred Stock, $1 par value, of the Company.
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(i) "Purchase Price" shall mean the price to be paid for each one
one-hundredth of a Preferred Share pursuant to the exercise of a Right, which
price is, as of the date hereof, as set forth in Section 7(c). The Purchase
Price is subject to adjustment from time to time as set forth in Sections 11 and
13.
(j) "Qualifying Tender Offer" shall mean a tender offer made by any
Person, other than an Acquiring Person, an Affiliate or Associate of an
Acquiring Person, or a Person that beneficially owns 5 percent or more of the
Company's outstanding Common Shares, to purchase all outstanding Common Shares
of the Company for cash in an amount, net to the sellers, which equals or
exceeds the highest per share price paid by such Person, or any of its
Affiliates or Associates for any such Common Shares within the 24-month period
prior to such offer and for which such Person has obtained binding commitments
for any required financing at the time the tender offer is first made; provided
that (i) all shares duly tendered pursuant to such tender offer shall be
accepted for payment and (ii) upon consummation of such tender offer such Person
shall beneficially own at least 85 percent of the outstanding Common Shares of
the Company. For purposes of this subsection (k), in determining the percentage
of outstanding Common Shares of the Company (A) shares held by a Person who is a
director and also an officer of the Company shall be deemed not outstanding and
(B) shares held by Plans in which employee participants do not have the right to
determine confidentially whether Common Shares of the Company held subject to
the Plan will be tendered in a tender offer shall be deemed not outstanding.
(k) "Shares Acquisition Date" shall mean the first date of public
announcement (which, for the purposes of this definition, shall include, without
limitation, a report filed pursuant to Section 13(d) under the Exchange Act) by
the Company or an Acquiring Person that an Acquiring Person has become such.
(l) "Subsidiary" of any Person shall mean any corporation or other
entity of which a majority of the voting equity securities or equity interests
is owned, directly or indirectly, by such Person.
The terms and conditions embodied in this Rights Agreement, as from
tine to time amended, may be referred to as the "Stockholder Rights Plan" of the
Company.
Section 2. Appointment of Rights Agent. The Company hereby appoints
the Rights Agent to act as agent for the Company and the holders of the Rights
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. Issuance of Right Certificates
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(a) Until the earlier of the close of business on (i) the 10th day
after the Shares Acquisition Date or (ii) the 10th Business Day (or such later
date as may be determined by the Board of Directors of the Company prior to such
time as any Person becomes an Acquiring Person) after the date of the
commencement by, or first public announcement of the intent of, any Person
(other than the Company, any wholly owned Subsidiary of the Company, any Plan of
the company or of any Subsidiary of the Company, or any entity holding Common
Shares of the Company for or pursuant to the terms of any such Plan) to
commence, a tender or exchange offer (other than a tender offer which would,
upon acceptance of shares for payment, be a Qualifying Tender Offer) the
consummation of which would result in beneficial ownership by a Person, together
with its Affiliates and Associates, of 30 percent or more of the outstanding
Common Shares of the Company, including any such date which is after the date of
this Agreement and prior to the issuance of the Rights (the earlier of (i) and
(ii) being herein referred to as the "Distribution Date"), (x) the Rights will
be evidenced by (A) certificates for Common Shares of the Company (which
certificates shall also be deemed to be Right Certificates) or, as the case may
be, (B) certificates issued subsequent to the Record Date and bearing the legend
set forth in Section 3(c) hereof (and, in neither case, by separate Right
Certificates) and the record holders of such certificates for Common Shares
shall be the record holders of the Rights represented thereby and (y) the Rights
and the right to receive Right Certificates will be transferable only
simultaneously with and together with the transfer of Common Shares of the
Company. Until the Distribution Date (or the earlier of the Redemption Date or
the Final Expiration Date (as such terms are defined in Section 7 hereof)), the
surrender for transfer of such certificates for Common Shares shall also
constitute the surrender for transfer of the Rights associated with the Common
Shares represented thereby. As soon as practicable after the Distribution Date,
after notification by the Company, the Rights Agent will send, by first-class,
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, evidencing one Right for each Common Share so held. As
of the Distribution Date, the Rights will be evidenced solely by such Right
Certificates and may be transferred by the transfer of the Right Certificates as
permitted hereby, separately and apart from any transfer of one or more shares
of Common Shares, and the holders of such Right Certificates as listed in the
records of the Company or any transfer agent or registrar for the Rights shall
be the record holders thereof.
(b) Rights shall be issued in respect of all Common Shares of the
Company issued after the Record Date, but prior to the earliest of the
Distribution Date (the Redemption Date, the Exchange Date, or the Final
Expiration Date). Certificates for such Common Shares shall also be deemed to be
certificates for
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Rights and shall have impressed on, printed on, written on or otherwise affixed
to them the following legend (or the form of legend specified in any version of
this Rights Agreement prior to the current amendment and restatement hereof):
This certificate also evidences and entitles the holder hereof to certain
Rights as set forth in the Stockholder Rights Plan of Louisiana-Pacific
Corporation (the "Plan"), until separate certificates for such Rights are
issued. Under certain circumstances, as set forth in the Plan, such Rights
will be evidenced by separate certificates and will no longer be evidenced
by this certificate. The terms of the Plan, a copy of which is on file at
the principal executive offices of Louisiana-Pacific Corporation, are
hereby incorporated herein by reference. Louisiana-Pacific Corporation
will mail or cause to be mailed to the holder of this certificate a copy
of the Plan without charge promptly following receipt of a written request
therefor. Under certain circumstances set forth in the Plan, Rights
beneficially owned by any Person who is, was or becomes an Acquiring
Person or any Affiliate or Associate thereof (as such terms are defined in
the Plan) and any subsequent holder of such Rights, may become null and
void.
(c) Certificates for Common Shares, if any, issued after the
Distribution Date but prior to the earlier of 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 does not evidence any Right issued pursuant to the terms
of the Stockholder Rights Plan of Louisiana-Pacific Corporation.
Section 4. Form of Right Certificates. The Right Certificates (and
the forms of election to purchase, assignment and certificate to be printed on
the reverse thereof), when, as and if issued, 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 Common Shares of the Company or 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, whenever issued, which are issued in respect
of Common Shares which were issued and outstanding as of the close of business
on the Distribution Date, shall be dated as of the close of business on the
Distribution Date, and on their face shall entitle the holders thereof to
purchase such number of Preferred Shares
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(including fractional shares which are integral multiples of one one-hundredth
of a share) as shall be set forth therein at the price per one one-hundredth of
a Preferred Share set forth therein, but the number of such Preferred Shares and
fractions thereof and the Purchase Price shall be subject to adjustment as
provided herein.
Section 5. Countersignature and Registration.
(a) The Right Certificates shall be executed on behalf of the
Company by its Chairman of the Board, its President or any Vice President,
either manually or by facsimile signature, and have affixed thereto the
Company's seal or a facsimile thereof which shall be attested by the Secretary,
or an Assistant Secretary, of the Company, either manually or by facsimile
signature. The Right Certificates shall be countersigned manually by the Rights
Agent and shall not be valid for any purpose unless so countersigned. In case
any officer of the Company who shall have signed any of the Right Certificates
shall cease to be such officer of the Company before countersignature by the
Rights Agent and issuance and delivery by the Company, such Right Certificates,
nevertheless, may be countersigned by the Rights Agent, 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 Agreement any such person was not such an officer.
(b) Following the Distribution Date, the Rights Agent will keep or
cause to be kept, at its shareholder services 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 Certificate.
(a) Subject to the provisions of Sections 7(f) and 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 earliest of the Redemption Date, the Exchange Date,
or the Final Expiration Date (as such terms are defined in Section 7 hereof),
any Right Certificate or Right Certificates 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 Preferred Shares as
the Right
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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 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 office of
the Rights Agent with the form of assignment on the reverse side thereof (or
with a written instrument of transfer in form satisfactory to the Company and
the Rights Agent enclosed with such Right Certificate), executed by the
registered holder thereof or his attorney authorized in writing, and with such
signature guaranteed. Neither the Rights Agent nor the Company shall be
obligated to take any action whatsoever with respect to the transfer of any such
surrendered Right Certificate until the certificate set forth in the form of
assignment on the reverse side of such Right Certificate shall have been
completed and executed by the registered holder thereof or his attorney
authorized in writing, and with such signature guaranteed, and the Company shall
have been provided such additional evidence of the identity of the Beneficial
Owner (or former Beneficial Owner) of the Rights represented by such Right
Certificate or the Affiliates or Associates of such Beneficial Owner (or former
Beneficial Owner) as the Company shall reasonably request. Upon receipt of such
executed form of assignment and certificate and of such additional evidence, if
requested, 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.
(b) Upon receipt by the Company and the Rights Agent of evidence
reasonably satisfactory to them of the loan, 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 shall issue and deliver a new
Right Certificate of like tenor to the Rights Agent for delivery to the
registered owner in lieu of the Right Certificate so lost, stolen, destroyed or
mutilated.
Section 7. Exercise of Rights; Purchase Price; Expiration Date of
Rights.
(a) Until the Distribution Date, no Right may be exercised.
(b) The registered holder of any Right Certificate may exercise the
Rights evidenced thereby (except as otherwise provided herein) in whole or in
part at any time after the
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Distribution Date upon surrender of the Right Certificate, with the form of
election to purchase on the reverse side thereof and certificate thereon duly
executed (with signatures duly guaranteed), to the Rights Agent at the
shareholder services office or agency of the Rights Agent designated for such
purpose, together with payment of the Purchase Price with respect to each Right
exercised, at or prior to the earliest of (i) the close of business on June 6,
1998 (the "Final Expiration Dates"), (ii) the time at which the Rights are
exchanged (the "Exchange Date") as provided in Section 24, or (iii) the time at
which the Rights are redeemed (the "Redemption Date"), as provided in Section 23
hereof.
(c) The Purchase Price for each one one-hundredth of a Preferred
Share pursuant to the exercise of a Right shall initially be $75.00, and shall
be payable in lawful money of the United States of America in accordance with
Section 7(d) hereof. The Purchase Price and the number of Preferred Shares to be
acquired upon exercise of a Right shall be subject to adjustment from time to
time as provided in Sections 11 and 13 hereof.
(d) Upon receipt of a Right Certificate representing exercisable
Rights, with the form of election to purchase and form of certificate thereon
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 by bank
certified check or cashier's check payable to the order of the Company, and such
additional evidence of the identity of the Beneficial Owner (or former
Beneficial Owner) of the Rights represented by such Right Certificate or the
Affiliates or Associates thereof as the Company may reasonably request, the
Rights Agent shall thereupon promptly (i) 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, and/or, as provided in Section 14 hereof,
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, (iii)
promptly 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, promptly deliver such cash to
or upon the order of the registered holder of such Right Certificate.
Notwithstanding the foregoing provisions of this Section 7(d), the Company may
suspend the issuance of
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Preferred Shares upon exercise of Rights for a reasonable period, not in excess
of 90 days, during which the Company seeks to register under the Securities Act
of 1933, as amended, and any applicable securities law of any jurisdiction, the
Preferred Shares to be issued pursuant to the Rights; provided, however, that
nothing contained in this Section 7(d) shall relieve the Company of its
obligations under Section 9(c) hereof.
(e) In case the registered holder of any Right Certificate shall
exercise less than all the Rights evidenced thereby, a new Right Certificate
evidencing Rights equivalent to the Rights remaining unexercised shall be issued
by the Rights Agent to the registered holder of such Right Certificate or to his
duly authorized assigns, subject to the provisions of Section 14 hereof.
(f) Notwithstanding anything in this Agreement to the contrary, upon
the occurrence of a Section ll(a)(ii) event or Section 13 event, any Rights
beneficially owned by (i) an Acquiring Person or any Affiliate or Associate of
an Acquiring Person, (ii) a transferee of an Acquiring Person or of any
Affiliate or Associate of such Acquiring Person who becomes a transferee after
the Acquiring Person becomes such (other than a transferee in a transaction
described in Section 23(b)), or (iii) a transferee who acquired such Rights from
an Acquiring Person or an Affiliate or Associate of an Acquiring Person prior to
or concurrently with the Acquiring Person becoming such in a transaction which
the Board of Directors has determined to be part of an arrangement which has as
a primary purpose or effect the avoidance of this Section 7(f), shall become
null and void, and any holder of such Rights (whether or not such holder is an
Acquiring Person or an Affiliate or Associate of an Acquiring Person) shall
thereafter have no right to exercise such Rights under any provision of this
Agreement or otherwise. Any Right Certificate issued pursuant to Section 3 that
represents Rights beneficially owned by an Acquiring Person or any Affiliate or
Associate thereof and any Right Certificate issued at any time upon the transfer
of any Rights to an Acquiring Person or any Affiliate or Associate thereof or to
any nominee of such Acquiring Person, Affiliate or Associate, and any Right
Certificate issued pursuant to Sections 6 or 11 upon transfer, exchange,
replacement or adjustment of any other Right Certificate referred to in this
sentence, shall or shall be deemed to contain the following legend:
The Rights represented by this Right Certificate are or were beneficially
owned by a Person who was or became an Acquiring Person or Affiliate or
Associate of an Acquiring Person (as such terms are defined in the
Stockholder Rights Plan). This Right Certificate and the Rights
represented hereby are void in the circumstances specified in the
Stockholder Rights Plan.
The Company shall use all reasonable efforts to ensure that the
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provisions of this Section 7(f) are complied with, but shall have no liability
to any holder of Rights or any other Person as a result of its failure to make
any determination under this Section 7(f) with respect to an Acquiring Person or
its Affiliates, Associates or transferees.
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 canceled form,
or, if surrendered to the Rights Agent, shall be canceled by it, and no Right
Certificates shall be issued in lieu thereof except as expressly permitted by
any of the provisions of this 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
canceled Right Certificates to the Company, or shall, at the written request of
the Company, destroy such canceled Right Certificates, and in such case shall
deliver a certificate of destruction thereof to the Company.
Section 9. Reservation and Availability of Capital Shares.
(a) The Company covenants and agrees that it will cause to be
reserved and kept available out of its authorized and unissued Preferred Shares
(and, will use its best efforts, following the occurrence of a Section ll(a)(ii)
event, to cause to be reserved and kept available out of its authorized and
unissued Common Shares and/or other securities or out of its authorized and
issued shares held in its treasury), the number of Preferred Shares (and,
following the occurrence of a Section ll(a)(ii) event, the number of Common
Shares and/or other securities) as will from time to time be sufficient to
permit the exercise in full of all outstanding Rights.
(b) So long as the Preferred Shares (and, following the occurrence
of a Section ll(a)(ii) event, Common Shares and/or other securities) issuable
upon the exercise of Rights may be listed on any national securities exchange,
the Company shall use its best efforts to cause, from and after such time as the
Rights become exercisable, all shares issued or reserved for such issuance to be
listed on such exchange upon official notice of issuance upon such exercise.
(e) If necessary to permit the issuance of shares and/or other
securities pursuant to the Rights, the Company will use its best efforts from
and after the time the Rights become exercisable to register such shares and/or
other securities under the Securities Act of 1933, as amended, and any
applicable securities laws and to keep such registration effective until the
Final Expiration Date.
- 11 -
(d) The Company covenants and agrees that it will take all such
action as may be necessary to ensure that all one one-hundredths of Preferred
Shares (and, following the occurrence of a Section l(a)(ii) event, Common Shares
and/or other securities) delivered upon exercise of Rights shall, at the time of
delivery of the certificates for such shares or other securities (subject to
payment of the Purchase Price), be duly and validly authorized and issued and
fully paid and nonassessable.
(e) The Company further covenants and agrees that it will pay when
due and payable any and all federal and state transfer taxes and charges which
may be payable in respect of the issuance or delivery of the Right Certificates
or of any Preferred Shares (or Common Shares and/or other securities as the case
may be) upon the exercise of Rights. The Company shall not, however, be required
to pay any transfer tax which may be payable in respect of any transfer or
delivery of Right Certificates to a Person other than, or the issuance or
delivery of certificates for the Preferred Shares (or Common Shares and/or other
securities, as the case may be) in a name other than that of, the registered
holder of the Right Certificate evidencing Rights surrendered for exercise or to
issue or deliver any certificates for Preferred Shares (or Common Shares and/or
other securities, as the case may be) upon the exercise of any Rights until any
such tax shall have been paid (any such tax being payable by the holder of such
Right Certificate at the time of surrender) or until it has been established to
the Company's satisfaction that no such tax is due.
Section 10. Preferred Shares Record Date. Each Person in whose name
any certificate for Preferred Shares (or Common Shares and/or other securities,
as the case may be) is issued upon the exercise of Rights shall for all purposes
be deemed to have become the holder of record of the Preferred Shares (or Common
Shares and/or other securities, as the case may be) 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) were made; provided, however, that if the
date of such surrender and payment is a date upon which the transfer books for
the Preferred Shares (or Common Shares and/or other securities, as the case may
be) 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 such transfer books are open.
Section 11. Adjustment of Purchase Price, Number of Shares or Number
of Rights. The Purchase Price, the number and kind of shares which may be
purchased upon exercise of a 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
- 12 -
after the date of this Agreement and prior to the close of business
on the earlier of the Redemption Date or the Final Expiration Date
(A) declare or pay any 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), then
and in each such event, the Purchase Price in effect at the time of
the record date for such dividend or on the effective date of such
subdivision, combination or reclassification, and the number and
kind of Preferred Shares or capital stock, as the case may be,
issuable on such date, shall be proportionately adjusted so that the
holder of any Right exercised after such time shall be entitled to
receive the aggregate number and kind of Preferred Shares or capital
stock, as the case may be, which, if such Right had been exercised
immediately prior to such date and at a time when the Right was
exercisable and the transfer books of the Company were open, he
would have owned upon such exercise and been entitled to receive by
virtue of such dividend, subdivision, combination or
reclassification. If an event occurs which would require an
adjustment under both this Section ll(a)(i) and Section ll(a)(ii)
hereof, the adjustment provided for in this Section ll(a)(i) shall
be in addition to, and shall be made prior to, any adjustment
required pursuant to Section ll(a)(ii) hereof.
(ii) Subject to Section 24, in the event that, at any time after the
date of this Agreement any Person (other than the Company, any wholly owned
Subsidiary of the Company, any Plan of the Company or of a Subsidiary of the
Company, or any Person holding Common Shares for or pursuant to the terms of any
such Plan), alone or together with its Affiliates and Associates, shall become
an Acquiring Person (except in a transaction to which the provisions of Section
13(a) hereof apply), then, immediately upon the occurrence of such event (a
"Section ll(a)(ii) event"), proper provision shall be made so that each holder
of a Right, except as provided in Section 7(f) hereof, shall thereafter have a
right to receive for each Right, upon exercise thereof in accordance with the
terms of this Agreement and payment of the then-current Purchase Price, in lieu
of one one-hundredth of a Preferred Share, such number of Common Shares of the
Company as shall equal the result obtained by multiplying the then-current
Purchase Price by the then number of one one-hundredths of a Preferred Share for
which a Right was exercisable immediately prior to the first occurrence of a
Section ll(a)(ii) event, and dividing that product by 50 percent
- 13 -
of the current per share market price (determined pursuant to Section ll(d)
hereof) for Common Shares on the date of such first occurrence (such number of
shares being hereinafter referred to as the "Adjustment Shares"); provided that
such provision shall not be effective until such time as the Rights are no
longer subject to redemption pursuant to Section 23(a) hereof.
(iii) In lieu of issuing Common Shares in accordance with Section
ll(a)(ii) hereof, the Company may, if the Board of Directors determines that
such action is necessary or appropriate and not contrary to the interest of
holders of Rights, and, in the event that the number of Common Shares which are
authorized by the Company's Certificate of Incorporation but not outstanding or
reserved for issuance for purposes other than upon exercise of the Rights is not
sufficient to permit the exercise in full of the Rights in accordance with
Section ll(a)(ii) hereof, the Company shall, with respect to each Right, make
adequate provision to substitute for all or a portion of the Adjustment Shares
upon payment of the applicable Purchase Price (A) cash, (B) other equity
securities of the Company (including, without limitation, shares of preferred
stock or units of preferred stock having the same value as Common Shares (such
shares or units of preferred stock, "common stock equivalents")), (C) debt
securities of the Company, (D) other assets or (E) any combination of the
foregoing, having an aggregate value equal to the Adjustment Shares for which
substitution is made. To the extent that the Company determines that some action
is to be taken pursuant to this Section ll(a)(iii), the Company shall provide,
subject to Section 7(f) hereof, that such action shall apply uniformly to all
outstanding Rights.
(b) In the event that the Company shall at any time after the close
of business on the Record Date and prior to the close of business on the earlier
of the Redemption Date or the Final Expiration Date fix a record date prior to
the Redemption Date or Final Expiration 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 per share of equivalent preferred share (or
having an effective price per share or a converted basis in the case of a
security convertible into Preferred Shares or equivalent preferred shares) less
than the current per share market price of the Preferred Shares (as determined
in accordance with Section 11(d) hereof) on such record date, then 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
- 14 -
Preferred Shares and/or equivalent preferred shares so to be offered (and/or the
aggregate 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). In case such subscription price may be paid
by delivery of consideration part or all of which may be in a form other than
cash, the value of such consideration shall be as determined in good faith by
the Board of Directors, whose determination shall be net forth in a statement
filed with the Rights Agent and shall be binding on the Rights Agent and the
holders of the Rights. 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 the event that the Company shall at any time after the close
of business on the Record Date and prior to the close of business on the earlier
of the Redemption Date or the Final Expiration Date 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 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)), the Purchase Price to be in effect after such record date shall
be determined by multiplying the Purchase Price in effect immediately prior to
such record date by a fraction, the numerator of which shall be the current per
share market price per one Preferred Share (as determined in accordance with
Section 11(d) hereof) on such record date, less the fair market value 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 per one
Preferred Share. Such adjustments shall be made successively whenever such a
record date is fixed; and in the event that such distribution is not so made,
the Purchase Price shall 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, other than
computations made pursuant to Section 11(a)(iii) hereof, the "current per
share market price" of the Common Shares on any date shall be deemed to be
the average of the daily closing prices per share of such Common Shares on
each
- 15 -
of the 20 consecutive Trading Days (as such term is hereinafter defined)
through and including the Trading Day immediately preceding such date;
provided, however, that in the event the current per share market price of
the Common Shares is determined during a period following the announcement
by the issuer of such Common Shares of (A) a dividend or distribution on
such Common Shares payable in such Common Shares or securities convertible
into such Common Shares, or (B) any subdivision, combination, or
reclassification of such Common Shares, and prior to the expiration of 20
Trading Days after the ex-dividend date for such dividend, distribution,
subdivision, combination, or reclassification, then, and in each such case
the current market price shall be appropriately adjusted to take into
account such event. 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, Inc., or, if the Common Shares are not listed or admitted
to trading on the New York Stock Exchange, Inc., as reported in the
principal consolidated transaction reporting system with respect to
securities listed on the principal national securities exchange on which
the Common Shares are listed or admitted to trading or, if the Common
Shares are not listed or admitted to trading on any national securities
exchange, the last quoted price or, if not so quoted, the average of the
high bid and low asked prices in the over-the-counter market, as reported
by the National Association of Securities Dealers, Inc. Automated
Quotations System ("NASDAQ") or such other system then in use, or, if on
any such date the Common Shares are not quoted by any such organization,
the average of the closing bid and asked prices as furnished by a
professional market maker making a market in the Common Shares selected by
the Board of Directors. The term "Trading Days" shall mean a day on which
the principal national securities exchange on which the Common Shares are
listed or admitted to trading is open for the transaction of business or,
if the Common Shares are 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 the
same manner as set forth above for Common Shares in clause (i) of this
Section 11(d). If the current per share market price of the Preferred
Shares cannot be determined in the manner provided above, 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
(appropriately adjusted to reflect any stock split, stock dividend,
subdivision, combination, reclassification, or similar transaction
- 16 -
occurring after the date hereof) multiplied by one hundred.
If neither the Common Shares 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 based
upon such appraisals or valuation reports of such independent experts as the
Board of Directors shall in good faith determine appropriate. Any such
determination of "current per share market price" 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 percent in
the Purchase Price; provided, however, that any adjustments which by reason of
this Section 11(e) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment. All calculations under this
Section 11 shall be made to the nearest cent or to the nearest ten-thousandth of
a Common Share or other share or one-millionth of a Preferred Share as the case
may be.
(f) If, as a result of an adjustment made pursuant to Section 11(a)
or Section 13(a), the holder of any Right thereafter exercised shall become
entitled to receive any shares of capital stock of the Company other than
Preferred Shares, 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 this Section 11 and the provisions of Sections 7,
9, 10, 13 and 14 hereof 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) below, 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 Preferred Share covered by a Right immediately prior to such
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.
- 17 -
(i) The Company may elect, on or after the date of any adjustment of
the Purchase Price, to adjust the number of Rights instead of making any
adjustment in the number of Preferred Shares 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 such
adjustment of the Purchase Price by the Purchase Price in effect immediately
after such adjustment of the Purchase Price. The Company shall make a public
announcement of its election to adjust the number of Rights, indicating the
record date for the adjustment, and, if known at the time, the amount of the
adjustment to be made. This record date may be the date on which the Purchase
Price is adjusted or any day thereafter, but, if the Right Certificates have
been issued, shall be at least ten days after the date of the public
announcement. If Right Certificates have been issued, upon each adjustment of
the number of Rights pursuant to this Section 11(i), the Company shall, as
promptly as practicable, cause to be distributed to holders of record of Right
Certificates on such record date Right Certificates evidencing, subject to
Section 14 hereof, the additional Rights to which such holders shall be entitled
as a result of such adjustment, or, at the option of the Company, shall cause to
be distributed to such holders of record in substitution and replacement for the
Right Certificates held by such holders prior to the date of adjustment, and
upon surrender thereof, if required by the Company, new Right Certificates
evidencing all the Rights to which such holders shall be entitled after such
adjustment. Right Certificates so to be distributed shall be issued, executed
and countersigned in the manner provided for herein (and may bear, at the option
of the Company, the adjusted Purchase Price) and shall be registered in the
names of the holders of record of Right Certificates on the record date
specified in the public announcement.
(j) Irrespective of any adjustment or change in the Purchase Price
or the number of one one-hundredths of a Preferred Share issuable upon the
exercise of the Rights, as applicable, the Right Certificates theretofore and
thereafter issued may continue to express the Purchase Price per one
one-hundredth of a Preferred Share and the number of shares 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 advice or opinion of its counsel, be
necessary in order that the Company may validly and legally issue fully paid and
nonassessable one one-hundredths of a Preferred
- 18 -
Share at such adjusted Purchase Price.
(l) In any case in which this Section 11 shall require that an
adjustment in the Purchase Price be made effective as of a record date for a
specified event, the Company may elect to defer, until the occurrence of such
event, the issuance to the holder of any Right exercised after such record date
the number of one one-hundredths of a Preferred Share and other capital stock or
securities of the Company, if any, issuable upon such exercise over and above
the number of one one-hundredths of a Preferred Share 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 further adjustments in the number of one
one-hundredths of a Preferred Share which may be acquired upon exercise of the
Rights, and such adjustments in the Purchase Price, in addition to those
adjustments expressly required by this Section 11, as and to the extent that the
Board of Directors in their sole discretion shall determine to be advisable in
order that any (i) consolidation or subdivision of the Preferred Shares, (ii)
issuance wholly for cash of any Preferred Shares at less than the current market
price, (iii) issuance wholly for cash of Preferred Shares or securities which by
their terms are convertible into or exchangeable for Preferred Shares, (iv)
dividends on Preferred Shares payable in Preferred Shares or (v) issuance of
rights, options or warrants referred to in Section 11(b), hereafter made by the
Company to holders of its Preferred Shares shall not be taxable to such holders
or shall reduce the taxes payable by such holders.
(n) The Company shall not, at any time after the Distribution Date
(i) consolidate with any other Person (other than a Subsidiary of the Company in
a transaction which complies with Section 11(o) hereof), (ii) merge with or into
any other Person (other than a Subsidiary of the Company in a transaction which
complies with Section 11(o) hereof), or (iii) sell or transfer (or permit any
Subsidiary to sell or transfer), in one transaction, or a series of
transactions, assets or earning power aggregating more than 50 percent of the
assets or earning power of the Company and its Subsidiaries (taken as a whole)
to any other Person or Persons (other than the Company and/or any of its
Subsidiaries in one or more transactions each of which complies with Section (o)
hereof), if (A) at the time of or immediately after such consolidation, merger
or sale there are any rights, warrants or other instruments or securities
outstanding or agreements in effect which would substantially diminish or
otherwise eliminate the benefits intended to be afforded by the
- 19 -
Rights or (B) prior to, simultaneously with or immediately after such
consolidation, merger or sale, the Person which constitutes, or would
constitute, the "Principal Party" for purposes of Section 13(a) hereof shall
have distributed or otherwise transferred to its stockholders, or other Persons
holding an equity interest in such Person, Rights previously owned by such
Person or any of its Affiliates or Associates; provided, however, this Section
11(n) shall not affect the ability of any Subsidiary of the Company to
consolidate with, merge with or into, or sell or transfer assets or earning
power to, any other Subsidiary of the Company.
(a) After the Distribution Date, the Company shall not, except as
permitted by Sections 23 or 26 hereof, take (or permit any Subsidiary to take)
any action if at the time such action is taken it is reasonably foreseeable that
such action will diminish substantially or otherwise eliminate the benefits
intended to be afforded by the Rights, including, without limiting the
generality of the foregoing, any merger, consolidation or sale or transfer of
assets or earning power.
(p) Anything in this Agreement to the contrary notwithstanding, in
the event that the Company shall at any time after the date of this Agreement
and prior to the Distribution Date (i) declare or pay a dividend on the
outstanding Common Shares payable in Common Shares, (ii) subdivide the
outstanding Common Shares, (iii) combine the outstanding Common Shares into a
smaller number of shares, or (iv) issue any shares of its capita] stock in a
reclassification of the outstanding Common Shares, the number of Rights
associated with each Common Share then outstanding, or issued or delivered
thereafter but prior to the Distribution Date, shall be proportionately adjusted
so that the number of Rights thereafter associated with each Common Share
following any such event (including other Common Shares issued after the date of
such event, but prior to the Distribution Date) shall equal the result obtained
by multiplying the number of Rights associated with each Common Share
immediately prior to such event by a fraction the numerator of which shall be
the total number of Common Shares outstanding immediately prior to the
occurrence of the event and the denominator of which shall be the total number
of Common Shares outstanding immediately following the occurrence of such event.
Section 12. Certificate of Adjusted Purchase Price or Number of
Shares. Whenever an adjustment is made as provided in Sections 11 and 13 hereof,
the Company shall (a) promptly prepare a certificate setting forth such
adjustment, and a brief statement of the facts giving rise to such adjustment,
(b) promptly file with the Rights Agent and with each transfer agent for the
Preferred Shares and the Common Shares a copy of such certificate and (c) mail a
brief summary thereof to each holder of a Right Certificate (or, if prior to the
Distribution Date, to each holder of a certificate representing Common Shares)
in accordance with Section 25 hereof. Notwithstanding the
- 20 -
foregoing sentence, the failure of the Company to make such certification or
give such notice shall not affect the validity of or the force or effect of the
requirement for such adjustment. Any adjustment to be made pursuant to Sections
11 and 13 of this Rights Agreement shall be effective as of the date of the
event giving rise to such adjustment. The Rights Agent shall be fully protected
in relying on any such certificate and on any adjustment therein contained.
Section 13. Consolidation, Merger or Sale or Transfer of Assets or
Earning Power.
(a) In the event that, directly or indirectly, after there is an
Acquiring Person, (i) the Company shall consolidate with, or merge with and
into, any other Person (other than a Subsidiary of the Company in a transaction
that complies with Section 11(o) hereof), and the Company shall not be the
continuing or surviving corporation of such consolidation or merger, (ii) any
Person (other than a Subsidiary of the Company in a transaction which complies
with Section 11(o) hereof) 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 consolidation or merger,
all or part of the Common Shares shall be changed into or exchanged for stock or
other securities of any other Person or cash or any other property, or (iii) the
Company shall sell or otherwise transfer (or one or more of its Subsidiaries
shall sell or otherwise transfer), in one or more transactions to any Person or
Persons (other than the Company or any of its Subsidiaries) in one or more
transactions each of which complies with Section 11(o), assets or earning power
aggregating more than 50 percent of the assets or earning power of the Company
and its Subsidiaries (taken as a whole) to any other Person or Persons (other
than the Company or one or more of its wholly owned Subsidiaries) (any event
described in clauses (i), (ii) or (iii) of this Section 13(a) being a "Section
13 event"), then, and in each such case, proper provision shall be made so that
(A) each holder of a Right, except as provided in Section 7(f) hereof, shall
thereafter have the right to receive, upon the exercise thereof at the
then-current Purchase Price in accordance with the terms of this Agreement, such
number of validly authorized and issued, fully paid and nonassessable Common
Shares of the Principal Party (as hereinafter defined) which Common Shares shall
not be subject to any liens, encumbrances, rights of first refusal, transfer
restrictions or other adverse claims, as shall be equal to the result obtained
by (1) multiplying the then-current Purchase Price by the number of one
one-hundredths of a Preferred Share for which a Right was exercisable
immediately prior to the first occurrence of a Section 13 event (or, if a
Section 11(a)(ii) event has occurred prior to the Section 13 event, multiplying
the number of such one one-hundredths of a share for which a Right was
exercisable immediately prior to the first occurrence of such Section 11(a)(ii)
event by the Purchase Price in effect
- 21 -
immediately prior to such first occurrence), and dividing that product by (2) 50
percent of the current per share market price (determined in accordance with
Section 11(d)(i) hereof) of the Common Shares of such Principal Party on the
date of consummation of such Section 13 event; (B) such Principal Party 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; (C) the term "Company" shall thereafter be deemed to refer to
such Principal Party, it being specifically intended that the provisions of
Section 11 hereof shall apply only to such Principal Party after the first
occurrence of a Section 13 event; (D) such Principal Party shall take such steps
(including, but not limited to, the reservation of a sufficient number of shares
of its Common Shares in accordance with Section 9 hereof applicable to the
reservation of Capital Shares) 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 shares of its Common Shares
thereafter deliverable upon the exercise of the Rights; and (E) the provisions
of Section 11(a)(ii) hereof shall be of no further effect following the first
occurrence of any Section 13 event.
(b) "Principal Party" shall mean:
(i) in the case of any transaction described in clause (i) or (ii)
of Section 13(a) hereof, (A) the Person that is the issuer of any
securities into which Common Shares of the Company are converted in such
merger or consolidation, or, if there is more than one such issuer, the
issuer of Common Shares that has the highest aggregate current market
price (determined in accordance with Section 11(d) hereof) and (B) if no
securities are so issued, the Person that is the other party to such
merger or consolidation, or, if there is more than one such Person, the
Person the Common Shares of which has the highest aggregate current market
price (determined in accordance with Section 11(d) hereof); and
(ii) in the case of any transaction described in clause (iii) of
Section 13(a) hereof, the Person that is the party receiving the largest
portion of the assets or earning power transferred pursuant to such
transaction or transactions, or, if each Person that is a party to such
transaction or transactions receives the same portion of the assets or
earning power transferred pursuant to such transaction or transactions or
if the Person receiving the largest portion of the assets or earning power
cannot be determined, whichever Person the Common Shares of which has the
highest aggregate.current market price (determined in accordance with
Section 11(d) hereof);
provided, however, that in any such case, (A) if the Common Shares of such
Person are not at such time and have not been
- 22 -
continuously over the preceding twelve-month period registered under Section 12
of the Exchange Act ("Registered Common Shares"), or such Person is not a
corporation, and such Person is direct or indirect Subsidiary of another Person
that has registered Common Shares outstanding, "Principal Party" shall refer to
such other Person; (B) if the Common Shares of such Person are not Registered
Common Shares or such Person is not a corporation, and such Person is a direct
or indirect Subsidiary of another Person but is not a direct or indirect
Subsidiary of another Person which has Registered Common Shares outstanding,
"Principal Party" shall refer to the ultimate parent entity of such
first-mentioned Pereon; (C) if the Common Shares of such Person are not
Registered Common Shares or such Person is not a corporation, and such Person is
directly or indirectly controlled by more than one Person, and one or more of
such other Persons has Registered Common Shares outstanding, "Principal Party"
shall refer to whichever of such other Persons is the issuer of the Registered
Common Shares having the highest aggregate current market price (determined in
accordance with Section 11(d) hereof); and (D) if the Common Shares of such
Person are not Registered Common Shares or such Person is not a corporation, and
such Person is directly or indirectly controlled by more than one Person, and
none of such other Persons have Registered Common Shares outstanding, "Principal
Party" shall refer to whichever ultimate parent entity is the corporation having
the greatest stockholders' equity or, if no such ultimate parent entity is a
corporation, shall refer to whichever ultimate parent entity is the entity
having the greatest net assets.
(c) The Company shall not consummate any such consolidation, merger,
sale or transfer unless prior thereto the Company and Principal Party shall have
executed and delivered to the Rights Agent a supplemental agreement confirming
that (i) such Principal Party shall, upon consummation of such consolidation,
merger or sale or transfer of assets or earning power, assume this Agreement in
accordance with Sections 13(a) and (b) hereof, (ii) all rights of first refusal
or preemptive rights in respect of the issuance of Common Shares of such
Principal Party upon exercise of outstanding Rights have been waived, (iii) any
provision of the authorized securities of such Principal Party or of its
charter, bylaws or other instruments governing its corporate affairs which would
obligate such Principal Party to issue in connection with, or as a consequence
of, the consummation of a transaction referred to in Section 13(a) hereof,
Common Shares of such Principal Party at less than the then-current per share
market price (determined in accordance with Section 11(d)(i) hereof) or
securities exercisable for, or convertible into, such Common Shares at less than
such then-current per share market price (other than to the holders of Rights
pursuant to this Section 13) have been waived or canceled, and (iv) such
transaction shall not result in a default by such Principal Party under this
Agreement and further providing that, as soon as practicable after the date of
any consolidation, merger or sale or transfer of assets or earning
- 23 -
power referred to in Section 13(a) hereof, such Principal Party will:
(A) prepare and file a registration statement under the Securities
Act of 1933, as amended, with respect to the Rights and the securities
purchasable upon exercise of the Rights on an appropriate form, use its
best efforts to cause such registration statement to become effective as
soon as practicable after such filing and use its best efforts to cause
such registration statement to remain effective (with a prospectus at all
times meeting the requirements of the Securities Act of 1933, as amended)
until the Final Expiration Date of the Rights, and similarly comply with
applicable state securities laws;
(B) use its best efforts to list (or continue the listing of) the
Rights and the securities purchasable upon exercise of the Rights on a
national securities exchange or to meet the eligibility requirements for
quotation on the NASDAQ or such other system then in use; and
(C) deliver to holders of the Rights historical financial statements
for such Principal Party which comply in all respects with the
requirements for registration on Form 10 (or any successor form) under the
Exchange Act.
In the event that at any time after the occurrence of a Section
11(a)(ii) event hereof some or all of the Rights shall not have been exercised
at the time of a Section 13 event, the Rights which have not theretofore been
exercised shall thereafter be exercisable in the manner described in Section
13(a) (without taking into account any prior adjustment required by Section
11(a)(ii)).
(d) 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 Right (i.e.,
Rights to acquire less than one one-hundredth of a Preferred Share). If the
Company shall determine not to issue 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
- 24 -
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, Inc., or, if the Rights are not listed or admitted to trading on
the New York Stock Exchange, Inc., 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. 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 will be
as determined in good faith by the Board of Directors, based upon such
appraisals or valuation reports of such independent experts as the Board of
Directors shall in good faith determine appropriate.
(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. With respect to fractional Preferred Shares that are not integral
multiples of one one-hundredth of a Preferred Share, if the Company does not
issue fractional shares or depositary receipts in lieu thereof, 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 purposes of
this Section 14(b), the current market value of one one-hundredth of a Preferred
Share shall be one one-hundredth of the closing price of a Preferred Share (as
determined in accordance with Section 11(d)(ii) hereof) for the Trading Day
immediately prior to the date of such exercise.
(c) The holder of a Right, by the acceptance of the Rights,
expressly waives his right to receive any fractional Rights or any fractional
shares upon exercise of a Right except
- 25 -
as permitted by this Section 14.
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); and any registered holder of any Right Certificate (or, prior to
the Distribution Date, of the Common Shares), without the consent of the Rights
Agent or of the holder of any other Right Certificate (or, prior to the
Distribution Date, of the Common Shares), may in his own behalf and for his own
benefit, enforce, and may institute and maintain any suit, action or proceeding
against the Company to enforce, or otherwise act in respect of, his right to
exercise the Rights evidenced by such Right Certificate in the manner provided
in such Right Certificate and in this 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 shall be evidenced by
the certificates for Common Shares registered in the name of the holders of the
Common Shares (which certificates for Common Shares shall also constitute
certificates for Rights) and each Right will be transferable only in connection
with the transfer of the Common Shares;
(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 with the appropriate forms and certificates
duly executed; and
(c) subject to Sections 6(a) and 7(f) hereof, 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.
- 26 -
Section 17. Right Holders and Right Certificate Holders Not Deemed a
Stockholder. No holder, as such, of any Right or Right Certificate shall be
entitled to vote, receive dividends or be deemed for any purpose the holder of
the number of one one-hundredths of a Preferred Share 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 or 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 24), 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 Bights Agent.
(a) The Company agrees to pay to the Rights Agent reasonable
compensation for all services rendered by it hereunder and, from time to time,
on demand of the Rights Agent, its reasonable expenses and counsel fees and
other disbursements incurred in the administration and execution of this
Agreement and the exercise and performance of its duties hereunder. The Company
also agrees to indemnify the Rights Agent for, and to hold it harmless against,
any loss, liability, or expense, incurred without negligence, bad faith or
willful misconduct on the part of the Rights Agent, for anything done or omitted
by the Rights Agent in connection with the acceptance and administration of this
Agreement, including the costs and expenses of defending against any claim of
liability.
(b) The Rights Agent shall be protected and shall incur no liability
for or in respect of any action taken, suffered or omitted by it in connection
with its administration of this Agreement 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 otherwise upon the advice of its counsel as set forth in
Section 20 hereof.
Section 19. Merger or Consolidation or Change of Name
of Rights Agent.
(a) Any corporation into which the Rights Agent or any successor
Rights Agent may be merged or with which it may be consolidated, or any
corporation resulting from any merger or
- 27 -
consolidation to which the Rights Agent or any successor Rights Agent shall be a
party, or any corporation succeeding to the corporate trust or stock transfer
business of the Rights Agent or any successor Rights Agent, shall be the
successor to the Rights Agent under this Agreement without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
provided that such corporation would be eligible for appointment as a successor
Rights Agent under the provisions of Section 21 hereof. If, 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 if 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.
(b) If 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 if 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 advice or opinion of such counsel shall
be full and complete authorization and protection to the Rights Agent as to any
action taken or omitted by it in good faith and in accordance with such advice
or 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 or suffering any action
hereunder, such fact or matter (unless other evidence in respect thereof be
herein specifically prescribed) may be deemed to be conclusively proved and
established by a certificate sighed by any one of the Chairman of the Board, the
President, any Vice President, the Treasurer or the Secretary of the Company and
delivered to the
- 28 -
Rights Agent; provided, however, that so long as any Person is an Acquiring
Person hereunder, such certificate shall be signed by a majority of the menders
of the Board of Directors; and such certificate shall be full authorization to
the Rights Agent for any action taken or suffered in good faith by it under the
provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and
any other Person only for its own gross negligence, bad faith or willful
misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of
the statements of fact or recitals contained in this 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 authorization, execution and delivery 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 null and void
pursuant to Section 7(f) hereof) or any adjustment required under the provisions
of Sections 11 or 13 hereof (including the manner, method or amount thereof) 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 receipt by the Rights Agent of the certificate describing any
such adjustment as contemplated by Section 12 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 President, any Vice President, the
Secretary, any Assistant Secretary or the Treasurer of the Company, and to apply
to such
- 29 -
officers for advice or instructions in connection with its duties, and it shall
not be liable for any action taken or suffered to be taken by it in good faith
in accordance with instructions of any such officer; provided, however, that so
long as any Person is an Acquiring Person hereunder, the Rights Agent shall
accept such instructions and advice only from the Board of Directors and shall
not be liable for any action taken or suffered to be taken by it in good faith
in accordance with such instructions. Any application by the Rights Agent for
written instructions from the Company may, at the option of the Rights Agent,
set forth in writing any action proposed to be taken or omitted by the Rights
Agent under this Agreement and the date on and/or after which such action shall
be taken or such omission shall be effective. The Rights Agent shall not be
liable for any action taken by, or omission of, the Rights Agent in accordance
with a proposal included in any such application on or after the date specified
in such application (which date shall not be less than five Business Days after
the date any such officer of the Company or, if there is an Acquiring Person
hereunder, a majority of the members of the Board of Directors, actually
receives such application, unless any such officer or a majority of the members
of the Board of Directors shall have consented in writing to an earlier date)
unless, prior to taking any such action (or the effective date in the case of an
omission), the Rights Agent shall have received written instructions in response
to such application specifying the action to be taken or omitted.
(h) The Rights Agent and any stockholder, director, officer or
employee of the Rights Agent may buy, sell or deal in any of the Rights or other
securities of the Company or become pecuniarily interested in any transaction in
which the Company may be interested, or contract with or lend money to the
Company or otherwise act as fully and freely as though it were not the Rights
Agent under this 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 that 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 or in the exercise of its rights hereunder if
the Rights Agent shall have reasonable grounds for believing that repayment of
such funds or adequate indemnification against such risk or liability is not
reasonably assured to it.
- 30 -
(k) If, with respect to any Right Certificate surrendered to the Rights
Agent for exercise or transfer, the certificate included with the form of
assignment or form of election to purchase, as the case may be, has either not
been completed, not signed or indicates an affirmative response to clause 1
and/or 2 thereof, the Rights Agent shall not take any further action with
respect to such requested exercise or transfer without first consulting with the
Company. If such certificate has been completed and signed, the Rights Agent may
assume without further inquiry that the Right Certificate is not owned by a
person described in Section 7(f) hereof and shall not be charged with any
knowledge to the contrary.
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 30 days' notice in writing mailed to the Company and to each
transfer agent of the Common Shares and Preferred Shares by registered or
certified mail, and to the holders of the Right Certificates by first-class
mail. The Company may remove the Rights Agent or any successor Rights Agent upon
30 days' notice in writing, mailed to the Rights Agent or successor Rights
Agent, as the case may be, and to each transfer agent of the Common Shares and
Preferred Shares by registered or certified mail, and to the holders of the
Right Certificates by first-class mail. If the Rights Agent shall resign or be
removed or shall otherwise become incapable of acting, the Company shall appoint
a successor to the Rights Agent. If the Company shall fail to make such
appointment within a period of 30 days after giving notice of such removal or
after it has been notified in writing of such resignation or incapacity by the
resigning or incapacitated Rights Agent or by the holder of a Right Certificate
(who shall, with such notice, submit his Right Certificate for inspection by the
Company), then the Company shall become the Rights Agent and the registered
holder of any Right Certificate may apply to any court of competent jurisdiction
for the appointment of a new Rights Agent. Any successor Rights Agent, whether
appointed by the Company or by such a court, shall be a corporation organized
and doing business under the laws of the United States or of the state of New
York (or of any other state of the United States so long as such corporation is
authorized to do business as a banking institution in the state of New York), in
good standing, having a principal office in the state of New York, which is
authorized under such laws to exercise corporate trust or stock transfer powers
and is subject to supervision or examination by federal or state authority and
which has at the time of its appointment as Rights Agent a combined capital and
surplus of at least $50 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.
- 31 -
Not later than the effective date of any such appointment, the Company shall
file notice thereof in writing with the predecessor Rights Agent and each
transfer agent of the Common Shares and Preferred Shares, and mail a notice
thereof in writing to the registered holders of the Right Certificates. Failure
to give any notice provided for in this Section 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 the Board of Directors to reflect any adjustment
or change in the Purchase Price per share 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. In addition, in
connection with the issuance or sale of Common Shares of the Company following
the Distribution Date and prior to the close of business on the earlier of the
Redemption Date or the Final Expiration Date, the Company (a) shall, with
respect to Common Shares of the Company so issued or sold pursuant to the
exercise of stock options or under any Plan, or upon the exercise, conversion or
exchange of securities hereinafter issued by the Company, and (b) may, in any
other case, if deemed necessary or appropriate by the Board of Directors, issue
Right Certificates representing the appropriate number of Rights in connection
with such issuance or sale; provided, however, that (i) no such Right
Certificate shall be issued if, and to the extent that, the Company shall be
advised by counsel that such issuance would create a significant risk of
material adverse tax consequences to the Company or the Person to whom such
Right Certificate would be issued, and (ii) no such Right Certificate shall be
issued if, and to the extent that, appropriate adjustment shall otherwise have
been made in lieu of the issuance thereof.
Section 23. Redemption.
(a) The Company may, at its option, by action of the Board of
Directors at any time prior to the close of business on the earlier of (i) the
10th day following the Shares Acquisition Date or (ii) the Final Expiration
Date, redeem all, but not less than all, the then outstanding Rights at a
redemption price of $.01 per Right as such amount may be appropriately adjusted
to reflect any stock split, stock dividend or similar transaction occurring
after the date hereof (such redemption price being hereinafter referred to as
the "Redemption Price").
(b) In the event that if, following the occurrence of a Shares
Acquisition Date and following the expiration of the right of redemption under
subparagraph (a) of this Section 23, but prior to any Section 13 event, (i) a
Person who is an
- 32 -
Acquiring Person or an Affiliate or Associate of such Person shall have
transferred or otherwise disposed of a number of Common Shares in one
transaction, or a series of transactions (not directly or indirectly involving a
purchase by the Company or any of its Subsidiaries), which did not result in the
occurrence of a Section 11(a)(ii) event or a Section 13 event, such that such
Person is thereafter a Beneficial Owner of 10 percent or less of the outstanding
Common Shares of the Company, (ii) there are no other Persons, immediately
following the transfer or other disposition described in clause (i), who are
Acquiring Persons, and (iii) the transfer or other disposition described in
clause (i) was other than pursuant to a transaction or series of transactions
which directly or indirectly involved the Company or any of its Subsidiaries,
then the right of redemption provided in subparagraph (a) of this Section 23
shall be reinstated and thereafter all outstanding Rights shall again be subject
to the provisions of this Section 23. Notwithstanding anything in this Agreement
to the contrary, the Rights shall not be exercisable at any time when the Rights
are subject to any effective right of redemption by the Company under this
Agreement.
(c) Immediately upon the action of the Board of Directors ordering
the redemption of the Rights, or at such time and date thereafter as the Board
of Directors may specify, 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. Promptly after
the action of the Board of Directors ordering the redemption of the Rights, the
Company shall give notice of such redemption to the holders of the then
outstanding Rights by mailing such notice to all such holders at their last
addresses as they appear upon the registry books of the Rights Agent or, prior
to the Distribution Date, on the registry books of the transfer agent for the
Common Shares. Any notice which is mailed in the manner herein provided shall be
deemed given, whether or not the holder receives the notice. Each such notice of
redemption will state the method by which the payment of the Redemption Price
will be made. Neither the Company nor any of its Affiliates or Associates may
redeem, acquire or purchase for value any Rights in any manner other than that
specifically set forth in this Section 23, and other than in connection with the
purchase of Common Shares prior to the Distribution Date.
Section 24. Exchange.
(a) The Company may, at its option, by action of the Board of
Directors, at any time after any Person becomes an Acquiring Person, exchange
all or part of the then-outstanding and exercisable Rights (which shall not
include Rights that have become void pursuant to the provisions of Section 7(f))
for Common Shares 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
- 33 -
exchange ratio being herein 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 Plan of the Company or of a Subsidiary of the
Company, or any Person holding Common Shares 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 percent or more of the Common Shares then
outstanding.
(b) Immediately upon the action of the Board of Directors of the
Company ordering the exchange of any Rights pursuant to Section 24(a) 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 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 for Rights will be effected and, in the event of any
partial exchange, the number of Rights which will be exchanged. Any partial
exchange shall be effected pro rata based on the number of Rights (other than
Rights which have become void pursuant to the provisions of Section 7(f) hereof)
held by each holder of Rights.
(c) In any exchange pursuant to this Section 24, the Company, at its
option, may substitute Preferred Shares (or equivalent preferred shares, as such
term is defined in Section 11(b)) for Common Shares exchangeable for Rights, at
the initial rate of one one-hundredth of a Preferred Share (or equivalent
preferred share) for each Common Share, as appropriately adjusted to reflect
adjustments in the voting rights of the Preferred Shares pursuant to the terms
thereof, so that the fraction of a Preferred Share delivered in lieu of each
Common Share shall have at least the same voting rights as one Common Share.
(d) The Company shall not be required to issue fractions of Common
Shares or to distribute certificates which evidence fractional Common Shares. In
lieu of such fractional shares, the Company shall pay to the registered holders
of the Right Certificates with regard to which such fractional shares would
otherwise be issuable an amount in cash equal to the same fraction of the
current market value of a whole Common Share. For the purposes of this Section
24(d), the current market value of a whole share shall be the closing price of a
Common Share
- 34 -
determined in the manner set forth in Section 11(d).
Section 25. Notice of Certain Events.
(a) In case the Company shall propose, at any time after the
Distribution Date, (i) to declare or 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), or (ii) to offer to the holders of its Preferred Shares options,
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, or (iii) to effect any reclassification of its Preferred Shares (other
than a reclassification involving only the subdivision of outstanding Preferred
Shares), or (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 more than
50 percent of the assets or earning power of the Company and its Subsidiaries
(taken as a whole) to, any other Person or Persons, or (v) to effect the
liquidation, dissolution or winding up of the Company, then, in each such case,
the Company shall give to each holder of 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 record of the 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 20 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 20 days prior to the
date of the taking of such proposed action or the date of participation therein
by the holders of the Preferred Shares, whichever shall be the earlier. The
failure to give notice required by this Section 25 or any defect therein shall
not affect the legality or validity of the action taken by the Company or the
vote upon any such action.
(b) In case any Section 11(a)(ii) event shall occur, then (i) 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 shall specify the event and the consequences of the event to
holders of Rights under Section 11(a)(ii) hereof, and (ii) all references in
Section 25(a) to Preferred Shares shall be deemed thereafter to refer to Common
Shares and/or, if appropriate, other securities.
- 35 -
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: Louisiana-Pacific Corporation, 000
X.X. Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxx 00000, Attention: 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) to the principal office of the Rights Agent
as follows:
First Chicago Trust Company of New York
00 Xxxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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 (or, if prior
to the Distribution Date, to the holder of certificates representing Common
Shares of the Company) 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.
(a) Prior to the Distribution Date, the Company may by action of the
Board of Directors, and the Rights Agent shall if the Company so directs,
supplement or amend any provision of this Agreement in any manner without the
approval of any holders of Common Shares. From and after the Distribution Date,
the Company may by action of the Board of Directors, and the Rights Agent shall
if directed by the Company, from time to time, supplement or amend this
Agreement without the approval of any holders of Right Certificates in order (i)
to cure any ambiguity, (ii) to correct or supplement any provision contained
herein which may be defective or inconsistent with any other provisions herein,
(iii) to shorten or lengthen any time period herein or (iv) to change or
supplement any other provisions, hereunder in any manner which the Board of
Directors may deem necessary or desirable so long as the interests" of the
holders of the Rights or Right Certificates (other than an Acquiring Person or
any Affiliate or Associate of an Acquiring Person) shall not be materially and
adversely affected thereby; provided, however, this Agreement may not be
supplemented or amended to lengthen, pursuant to clause (iii) of this sentence,
(A) a time period governing redemption of the Rights if the Rights are not then
redeemable, or (B) any other time period unless such lengthening is for the
purpose of protecting, enhancing or clarifying the rights of, and/or the
benefits to, the holders of Rights (other than an Acquiring Person or any
Affiliate or Associate of an
- 36 -
Acquiring Person). Upon the delivery of a certificate from an appropriate
officer of the Company or, so long as any Person is an Acquiring Person
hereunder, from the Board of Directors, which states that the proposed
supplement or amendment is in compliance with the terms of this Section 26(a),
the Rights Agent shall execute such supplement or amendment. Prior to the
Distribution Date, the interests of the holders of Rights shall be deemed
coincident with the interests of the holders of the Common Shares of the
Company.
(b) After the Distribution Date and prior to the earlier of the
Redemption Date or the Final Expiration Date, the Company shall not effect any
amendment to the Certificate of Designations for the Preferred Shares which
would materially and adversely affect the rights, privileges or powers of the
Preferred Shares, without the prior approval of the holders of two-thirds or
more of the then outstanding Rights.
Section 28. Certain Covenants.
Subject to Section 27 and the other provisions of this Agreement:
(a) no adjustment to the Purchase Price, the number of Preferred
Shares or Common Shares or other securities, as the case may be (or fractions of
a share), for which a Right is exercisable or the number of Rights outstanding
shall be made or be effective if such adjustment would have the effect of
reducing or limiting the benefits the holders of the Rights would have had
absent such adjustment, including, without limitation, the benefits under
Section 11(a)(ii) and Section 13, unless the terms of this Agreement are amended
so as to preserve such benefits; and
(b) the Company shall not, during any time when there exists an
Acquiring Person (i) sell or issue, or permit any Subsidiary to sell or issue,
to an Acquiring Person, or any Affiliate or Associate thereof, any rights,
options, warrants or convertible securities on terms similar to, or which
materially adversely affect the value of, the Rights, or (ii) sell or issue to
an Acquiring Person, or any Affiliate or Associate thereof, Preferred Shares,
Common Shares or shares of any other class of capital stock if such sale or
issue is intended to or would materially adversely affect the value of the
Rights.
Section 29. 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 30. Benefits of This Agreement. Nothing in this Agreement
shall be construed to give to any person or corporation other than the Company,
the Rights Agent and the registered holders of the Right Certificates (and,
prior to the
- 37 -
Distribution Date, the Cocoon 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 31. Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated;
provided, however, that notwithstanding anything in this Agreement to the
contrary, if any such term, provision, covenant or restriction is held by such
court or authority to be invalid, void or unenforceable and the Board of
Directors determines in their good faith judgment that severing the invalid
language from this Agreement would adversely affect the purpose or effect of
this Agreement and the Rights shall not then be redeemable, the right of
redemption set forth in Section 23 hereof shall be reinstated and shall not
expire until the close of business on the tenth day following the date of such
determination by the Board of Directors.
Section 32. Determinations and Actions by the Board of Directors,
etc. For all purposes of this Agreement, any calculation of the number of Common
Shares of the Company outstanding at any particular time, including for purposes
of determining the particular percentage of such outstanding shares of which any
Person is the Beneficial owner, shall be made in accordance with the last
sentence of Rule 13d-3(d)(1)(i) of the Exchange Act Regulations as in effect on
the date hereof. Except as otherwise specifically provided herein, the Board of
Directors of the Company shall have the exclusive power and authority to
administer this Agreement and to exercise all rights and powers specifically
granted to the Board of Directors or to the Company, or as may be necessary or
advisable in the administration of this Agreement, including, without
limitation, the right and power (a) to interpret the provisions of this
Agreement and (b) to make all determinations deemed necessary or advisable for
the administration of this Agreement. All such actions, calculations,
interpretations and determinations (including, for purposes of clause (ii)
below, all omissions with respect to the foregoing) which are done or made by
the Board of Directors in good faith shall (i) be final, conclusive and binding
on the Company, the Rights Agent, the holders of the Rights and all other
parties, and (ii) not subject the Board of Directors or any member thereof to
any liability to the holders of the Rights.
Section 33. 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
- 38 -
the laws of such state applicable to contracts to be made and performed entirely
within such state; provided, however, that the rights and obligations of the
Rights Agent hereunder shall be governed by the laws of the state of New York
(or state of incorporation of any successor Rights Agent).
Section 34. 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 35. Descriptive Headings. Descriptive headings of the
several sections of this Agreement are inserted for convenience only and shall
not control or affect the meaning or construction of any of the provisions
hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and their respective corporate seals thereto affixed and
attested as of the day and year first above written.
LOUISIANA-PACIFIC CORPORATION
Attest:
By /s/ Xxxxx X. Xxxxxxxx /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxxxxx Name: Xxxxx X. Xxxxx
Title: Secretary Title Chairman and President
FIRST CHICAGO TRUST COMPANY OF
NEW YORK
Attest:
By: /s/ Xxxxxx Xxxxxxxxxx By /s/ Xxxx X. Xxxxxxx
Name: Xxxxxx Xxxxxxxxxx Name: Xxxx X. Xxxxxxx
Title: Customer Service Officer Title: Vice President
- 39 -
Exhibit A
FORM OF
CERTIFICATE OF DESIGNATIONS OF SERIES A JUNIOR
PARTICIPATING CUMULATIVE PREFERRED STOCK,
$1 Par Value
of
LOUISIANA-PACIFIC CORPORATION
---------------------
Pursuant to Section 151 of the General Corporation
Law of the State of Delaware
---------------------
The undersigned, Xxxxx X. Xxxxx and Xxxxxx X. Xxxxxx, certify that:
1. They are the Chairman and President and the Secretary,
respectively, of Louisiana-Pacific Corporation, a corporation organized and
existing under the General Corporation Law of the State of Delaware (the
"Corporation").
2. That pursuant to the authority conferred upon the Board of
Directors by the Certificate of Incorporation, as amended, of the Corporation
and pursuant to Section 151 of the General Corporation Law of the State of
Delaware, the said Board of Directors on May 23, 1988, duly adopted the
following resolution, which resolution remains in full force and effect,
creating a series of shares of Preferred Stock of the par value of $1 each (the
"Preferred Stock") of the Corporation designated as Series A Junior
Participating Cumulative Preferred Stock, $1 par value:
"RESOLVED that pursuant to the authority vested in the Board of
Directors of this Corporation in accordance with the provisions of its
Certificate of Incorporation, as amended (the "Certificate of Incorporation"), a
series of the Preferred Stock of the Corporation be, and it hereby is, created,
and that the designation and amount thereof and the voting powers, preferences
and relative, participating, optional and other special rights of the shares of
such series, and the qualifications, limitations or restrictions thereof are as
follows:
Section 1. Designation and Amount. The shares of such series shall
be designated as Series A Junior Participating Cumulative Preferred Stock, $1
Par Value (the Series A Preferred Stock") and the number of shares constituting
such series shall be 1,000,000.
- A-1 -
Section 2. Dividends and Distributions.
(A) The holders of shares of Series A Preferred Stock, in preference
to the holders of Common Stock of the par value of $1 per share (the Common
Stock) of the Corporation and of any other junior stock which may be
outstanding, shall be entitled to receive, when, as and if declared by the Board
of Directors out of funds legally available for the purpose, (i) 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) $23.00 per share ($92.00 per annum), or (b) subject to the provision for
adjustment hereinafter set forth, 100 times the-aggregate per share amount of
all cash dividends 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, and (ii) subject to the provision for adjustment
hereinafter set forth, quarterly distributions (payable in kind) on each
Quarterly Dividend Payment Date in an amount per share equal to 100 times the
aggregate per share amount of all noncash 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 after May 23, 1988, declare or
pay any dividend on 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) 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 are entitled under clauses (i)(b) or (ii) 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 mandatory dividend or
distribution on the Series A Preferred Stock as provided in Section 2(A)
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
- A-2 -
Stock during the period between any Quarterly Dividend Payment Date and the next
subsequent Quarterly Dividend Payment Date, a mandatory dividend of $23.00 per
share ($92.00 per annum) 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 of Series A Preferred stock, unless
the date of issue of such shares is prior to the record date for the first
Quarterly Dividend Payment Date, in which case dividends on such shares shall
begin to accrue from the date of issue of such shares, or unless the date of
issue is a Quarterly Dividend Payment Date or is a date after the record date
for the determination of holders of shares of Series A 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
cumulate but 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 30 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) Each share of Series A Preferred Stock shall entitle the holder
thereof to one vote (and each one one-hundredth of a share of Series A Preferred
Stock shall entitle the holder thereof to one one-hundredth of one vote) on all
matters submitted to a vote of the stockholders of the Corporation.
(B) Except as otherwise provided in the Certificate of Incorporation
or herein or by law, the holders of shares of Series A Preferred Stock and the
holders of shares of Common Stock shall vote together as one class on all
matters submitted to a vote of the stockholders of the Corporation.
(C) In addition, the holders of shares of Series A Preferred Stock
shall have the following special voting rights:
(i) If and whenever accrued dividends on Series A Preferred Stock
shall not have been paid or declared
- A-3 -
and a sum sufficient for the payment thereof set aside in an amount
equivalent to six quarterly dividends on all Shares of Series A Preferred
Stock at the time outstanding, then and in each such event the holders of
Series A Preferred Stock and each other series of Preferred Stock now or
hereafter issued which shall be accorded such clans voting right by the
Board of Directors and which shall have the right to elect two directors
as the result of a prior or subsequent default in payment of dividends on
such series (each such other series being hereinafter called "Other Series
of Preferred Stock"), voting separately as a class without regard to
series, shall be entitled to elect two directors, in addition to the
directors to be elected by the holders of all shares of the Corporation
entitled to vote for the election of directors, and the holders of all
shares (including the Series A Preferred Stock) otherwise entitled to vote
for directors, voting separately as a class, shall be entitled to elect
the remaining members of the Board of Directors.
(ii) Such special voting right of the holders of Series A Preferred
Stock may be exercised until all dividends in default on the Series A
Preferred Stock shall have been paid in full or declared and funds
sufficient therefor set aside, and when so paid or provided for such
special voting right of the holders of Series A Preferred Stock shall
cease, but subject always to the same provisions for the vesting of such
special voting rights in the case of any such future dividend default or
defaults.
(iii) At any time after such special voting rights shall have so
vested in the holders of Series A Preferred Stock, the Secretary of the
Corporation may, and upon the written request of the holders of record of
10 percent or more in number of shares of Series A Preferred Stock and
each Other Series of Preferred Stock then outstanding addressed to him at
the principal executive office of the Corporation shall, call a special
meeting of the holders of Preferred Stock so entitled to vote for the
election of the directors to be elected by them as herein provided, to be
held within 60 days after such call and at the place and upon the notice
provided by law and in the bylaws for the holding of meetings of
stockholders; provided, however, that the Secretary shall not be required
to call such special meeting in the case of any such request received less
than 90 days before the date fixed for any annual meeting of stockholders,
and if in such case such special meeting is not called, the holders of
Preferred Stock so entitled to vote shall be
- A-4 -
entitled to exercise the special voting rights provided in this Section
3(C) at such annual meeting. If any such special meeting required to be
called as above provided shall not be called by the Secretary within 30
days after receipt of any such request, then the holders of record of 10
percent or more in number of shares of Series A Preferred Stock and each
Other Series of Preferred Stock then outstanding may designate in writing
one of their number to call such meeting, and the person so designated
may, at the expense of the Corporation, call such meeting to be held at
the place and upon the notice above provided, and for that purpose shall
have access to the stock books of the Corporation. No such special meeting
and no adjournment thereof shall be held on a date later than 60 days
before the annual meeting of the stockholders or a special meeting held in
place thereof next succeeding the time when the holders of Series A
Preferred Stock become entitled to elect directors as above provided.
(iv) If, at any meeting so called or at any annual meeting held
while the holders of shares of Series A Preferred Stock have the special
voting rights provided for in this Section 3(C), the holders of not less
than 33-1/3 percent of the then outstanding shares of Series A Preferred
Stock and each Other Series of Preferred Stock are present in person or by
proxy, which percentage shall be sufficient to constitute a quorum for the
election of additional directors as herein provided, the then authorized
number of directors of the Corporation shall automatically be increased by
two, as of the time of such special meeting or the time of the first such
annual meeting held while such holders have said special voting rights and
such quorum is present, and the holders of the Series A Preferred Stock
and each Other Series of Preferred Stock, voting as a class, shall be
entitled to elect the additional directors so provided for.
(v) Upon the election at such meeting by the holders of the shares
of Series A Preferred Stock and each Other Series of Preferred Stock,
voting as a class, of the two directors they are entitled so to elect, the
persons so elected, together with such persons as may be or may have been
elected as directors by the holders of all shares (including Series A
Preferred Stock) otherwise entitled to vote for directors, shall
constitute the duly elected directors of the Corporation. The additional
directors so elected by holders of Series A Preferred Stock and each Other
Series of Preferred Stock, voting as a class, shall
- A-5 -
serve until the next annual meeting or until their respective successors
shall be elected and qualified, and at each subsequent meeting of
stockholders at which the directorship of any director elected by the vote
of holders of Series A Preferred Stock and each Other Series of Preferred
Stock under the special voting rights set forth in this Section 3(C) is up
for election said special voting rights shall apply in the reelection of
such director or in the election of his successor; provided, however, that
whenever the holders of Series A Preferred Stock and each Other Series of
Preferred Stock shall be divested of the special rights to elect two
directors as above provided, the terms of office of all persons elected as
directors by the holders of Series A Preferred Stock and each Other Series
of Preferred Stock, voting as a class, or elected to fill any vacancies
resulting from the death, resignation, or removal of directors so elected
by the holders of Series A Preferred Stock and each Other Series of
Preferred Stock, shall forthwith terminate and the authorized number of
directors shall be reduced accordingly.
(vi) If, at any time after a special meeting of stockholders or an
annual meeting of stockholders at which the holders of Series A Preferred
Stock and each Other Series of Preferred Stock have elected additional
directors as provided above, and while the holders of Series A Preferred
Stock and each Other Series of Preferred Stock shall be entitled to elect
two directors, the number of directors who have been elected by the
holders of Series A Preferred Stock and each Other Series of Preferred
Stock (or who by reason of one or more resignations, deaths or removals
have succeeded any directors so elected) shall by reason of resignation,
death or removal be less than two but at least one, the vacancy in the
directors elected by the holders of the Series A Preferred Stock and each
Other Series of Preferred Stock may be filled by the remaining director
elected by such holders, and failing such election within 30 days after
such vacancy arises, or if there shall not be incumbent at least one
director elected by such holders, the Secretary of the Corporation may,
and upon the written request of the holders of record of 10 percent or
more in number of shares of Series A Preferred Stock and each Other Series
of Preferred Stock then outstanding addressed to him at the principal
office of the Corporation shall, call a special meeting of the holder of
Preferred Stock so entitled to vote for an election to fill such vacancy
or vacancies, to be held within 60 days after such call and at the place
and upon the notice provided
- A-6 -
by law and in the bylaws for the holding of meetings of stockholders;
provided, however, that the Secretary shall not be required to call such
special meeting in the case of any such request received less than 90 days
before the date fixed for any annual meeting of stockholders, and if in
such case such special meeting is not called, the holders of Preferred
Stock so entitled to vote shall be entitled to fill such vacancy or
vacancies at such annual meeting. If any such special meeting required to
be called as above provided shall not be called by the Secretary within 30
days after receipt of any such request, then the holders of record of 10
percent or more in number of shares of Series A Preferred Stock and each
Other Series of Preferred Stock then outstanding may designate in writing
one of their number to call such meeting, and the person so designated
may, at the expense of the Corporation, call such meeting to be held at
the place and upon the notice above provided, and for that purpose shall
have access to the stock books of the Corporation; no such special meeting
and no adjournment thereof shall be held on a date later than 60 days
before the annual meeting of the stockholders or a special meeting held in
place thereof next succeeding the time when the holders of Series A
Preferred Stock and each Other Series of Preferred Stock become entitled
to elect directors as above provided.
(D) Nothing herein shall prevent the directors or stockholders from
taking any action to increase the number of authorized shares of Series A
Preferred Stock, or increasing the number of authorized shares of Preferred
Stock of the same class as the Series A Preferred Stock or the number of
authorized shares of Common Stock, or changing the par value of the Common Stock
or Preferred Stock, or issuing options, warrants, or rights to any class of
stock of the Corporation as authorized by the Certificate of Incorporation now,
or as it may hereafter be amended.
(E) The provisions of this Section 3 shall govern the election of
directors by holders of Series A Preferred Stock notwithstanding any provisions
of the Certificate of Incorporation to the contrary, including, without
limitation, the first sentence of section (4) of Article Tenth of the
Certificate of Incorporation.
(F) Except as eat forth herein, 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 as set forth in the Certificate
of Incorporation or herein or by law) for taking any corporate action.
- A-7 -
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 dividend 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 dividend on, 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 on or make any other distributions on
any shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Preferred Stock,
except dividends paid ratably on the Series A Preferred Stock and all such
parity 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) with 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 (either as to dividends or
upon dissolution, liquidation or winding up) to the Series A Preferred
Stock; or
(iv) purchase or otherwise acquire for consideration any shares of
Series A Preferred Stock, or any share 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
- A-8 -
Corporation could, under Section 4(A), 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. The
Corporation Shall take all such action as is necessary so that all such shares
shall after their cancellation become authorized but unissued shares of
Preferred Stock, without designation as to series, and may be reissued as part
of a new series of Preferred Stock to be created by resolution or resolutions of
the Board of Directors, subject to the conditions and restrictions on issuance
set forth herein.
Section 6. Liquidation Dissolution or Winding Up. Upon any
liquidation, dissolution or winding up of the Corporation, no distribution shall
be made (A) to the holders of shares of stock ranking Junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series A
Preferred Stock unless, prior thereto, the holders of shares of Series A
Preferred Stock shall have received the higher of (i) $1.00 per share ($.O1 per
one one-hundredth of a share), plus an amount equal to accrued and unpaid
dividends and distributions thereon, whether or not declared, to the date of
such payment, or (ii) 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 Common Stock; nor shall any distribution
be made (B) to the holders of stock ranking on a parity (either as to dividends
or upon liquidation, dissolution or winding up) with the Series A Preferred
Stock, except distributions made ratably on the Series A Preferred Stock and all
other such parity stock in proportion to the total amounts to which the holders
of all such shares are entitled upon such liquidation, dissolution or winding
up. In the event the Corporation shall at any time declare or pay any dividend
on 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) 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 are entitled under clause (A)(ii) 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
- A-9 -
Stock are exchanged for or changed into other stock or securities, cash and/or
any other property, or otherwise changed, then in any such case the shares of
Series A Preferred Stock shall at the same time be similarly exchanged or
changed in an amount per share (subject to the provision for adjustment
hereinafter set forth) equal to 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
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) 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 share. 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. By Redemption. The shares of Series A Preferred Stock
shall not be redeemable. Notwithstanding the foregoing, the Corporation may
acquire shares of Series A Preferred Stock in any other manner permitted by law,
the Certificate of Incorporation or herein.
Section 9. Rank. Unless otherwise provided in the Certificate of
Incorporation or a Certificate of Designations relating to a subsequent series
of Preferred Stock of the Corporation, the Series A Preferred Stock shall rank
junior to all other series of the Corporation's Preferred Stock as to the
payment of dividends and the distribution of assets on liquidation, dissolution
or winding up, and senior to the Common Stock of the Corporation.
Section 10. Amendment. The Certificate of Incorporation 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 a
majority of the outstanding shares of Series A Preferred Stock, voting
separately as a class.
Section 11. Fractional Shares. Series A Preferred Stock may be
issued in one-hundredths of a share or other fractions of a share which shall
entitle the holder, in proportion to such holder's fractional shares, to
exercise voting rights, receive dividends, participate in distributions and to
have the benefit of all other rights of holders of Series A Preferred Stock.
- A-10 -
3. The authorized number of shares of Preferred Stock is 15,000,000.
The number of shares of Series A Junior Participating Cumulative Preferred Stock
is 1,000,000. None of the shares of such series has been issued.
Dated: _______________________, 1988.
------------------------------
Xxxxx X. Xxxxx
Chairman and President of
Louisiana-Pacific Corporation
ATTEST:
------------------------------
Xxxxxx X. Xxxxxx
Secretary of
Louisiana-Pacific Corporation
- A-11 -
Exhibit B
Form of Right Certificate
Certificate No. R ________ Rights
NOT EXERCISABLE AFTER JUNE 6, 1998, OR EARLIER IF REDEEMED. THE
RIGHTS ARE SUBJECT TO REDEMPTION AT $.01 PER RIGHT ON THE TERMS SET
FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES
(SPECIFIED IN THE RIGHTS AGREEMENT), RIGHTS BENEFICIALLY OWNED BY
ACQUIRING PERSONS (AS DEFINED IN THE RIGHTS AGREEMENT) OR ANY
SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID. [THE
RIGHTS REPRESENTED BY THIS RIGHT CERTIFICATE ARE OR WERE
BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON
OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS
ARE DEFINED IN THE RIGHTS AGREEMENT). THIS RIGHT CERTIFICATE AND THE
RIGHTS REPRESENTED HEREBY ARE VOID IN THE CIRCUMSTANCES SPECIFIED IN
THE RIGHTS AGREEMENT.]*
Right Certificate
LOUISIANA-PACIFIC CORPORATION
This certifies that ___________________, or registered assigns, is
the registered owner of the number of Rights set forth above, each of which
entitles the registered owner thereof, subject to the terms, provisions and
conditions of the Rights Agreement restated as of February 3, 1991 (the "Rights
Agreement"), between Louisiana-Pacific Corporation, a Delaware corporation (the
Company), and First Chicago Trust Company of New York (the "Rights Agent," which
term shall include every successor Rights Agent under the Rights Agreement), 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 p.m. (New York City time) on
June 6, 1998, at the office or agency of the Rights Agent or its successor
designated for such purpose, one one-hundredth of a fully paid nonassessable
share of Series A Junior Participating Cumulative Preferred Stock, $l par value
(the "Preferred Shares"), of the Company, at a purchase price.
--------------
* That portion of the legend in brackets shall be inserted only if applicable
and shall replace the preceding sentence initially of $___ 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 and related
- B-1 -
certificate duly executed. As provided in the Rights Agreement, the Purchase
Price and the number of Preferred Shares which may be purchased upon the
exercise of the Rights evidenced by this Right Certificate are subject to
modification and adjustment upon the happening of certain events.
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 are available from the Rights Agent or the Company upon written
request.
Upon the occurrence of certain events specified in Section 7(f) of
the Rights Agreement, if the Rights evidenced by this Right Certificate are or
were beneficially owned by an Acquiring Person or an Affiliate or Associate of
an Acquiring Person (as such terms are defined in the Rights Agreement) or,
under certain circumstances, a transferee of any such Acquiring Person,
Affiliate or Associate, such Rights shall become null and void and any holder
thereof (whether or not such holder is an Acquiring Person or an Affiliate or
Associate of an Acquiring Person) shall thereafter have no right to exercise
such Rights.
In certain circumstances described in the Rights Agreement, the
Rights evidenced hereby may entitle the holder hereof to purchase capital stock
of an entity other than the Company or receive cash or other assets, all as
prescribed in the Rights Agreement.
This Right Certificate, with or without other Right Certificates,
upon surrender at the office or agency of the Rights Agent designated for such
purpose, may be exchanged for another Right Certificate or Right Certificates of
like tenor and date evidencing Rights equal to the aggregate number of Rights
evidenced by the Right Certificate or Right Certificates surrendered. 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 Right Certificate may, but are
not required to, be redeemed by the Company at a redemption price of $.01 per
Right.
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
- B-2 -
Preferred Share, which may, at the election of the Company, be evidenced by
depositary receipts), but in lieu thereof, a cash payment will be Bade, 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: LOUISIANA-PACIFIC CORPORATION
------------------------------ ----------------------------
Secretary Chairman and President
Countersigned:
FIRST CHICAGO TRUST COMPANY
OF NEW YORK
By__________________________
Authorized Signature
- B-3 -
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: ________________________, 19__
-----------------------------
Signature
Signature Guaranteed:
Certificate
The undersigned hereby certifies by checking the appropriate boxes
that:
(1) this Right Certificate [ ] is [ ] is not being sold, assigned and
transferred by or on behalf of a Person who is or was an Acquiring Person or an
Affiliate or Associate of any such Acquiring Person (as such terms are defined
in the Rights Agreement); and
(2) after due inquiry and to the best knowledge of the undersigned,
the undersigned [ ] did [ ] did not acquire the Rights evidenced by this Right
Certificate from any Person who is, was or subsequently became an Acquiring
Person or an Affiliate or Associate of an Acquiring Person.
Dated: _____________, 19__ ____________________________
Signature
Signature Guaranteed:
Form of Reverse Side of Right Certificate -- continued
NOTICE
This signature to the foregoing Assignment and
- B-4 -
Certificate must correspond to the name as written upon the face of this Right
Certificate in every particular, without alteration or enlargement or any change
whatsoever.
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.
In the event the certification set forth above is not completed, the
Company 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
such terms are defined in the Rights Agreement) and, in the case of an
Assignment, will affix a legend to that effect on any Right Certificates issued
in exchange for this Right Certificate.
Form of Reverse Side of Right Certificate -- continued
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to
exercise the Right Certificate.)
To LOUISIANA-PACIFIC CORPORATION
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 print name and address)
--------------------------------------------------------------------------------
Please insert social security or other identifying number:
---------------------
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 print name and address)
-------------------------------------------------------------------------------
Dated ____________, 19___
- B-5 -
----------------------------
Signature
Signature Guaranteed:
Certificate
The undersigned hereby certifies by checking the appropriate boxes that:
(1) the Rights evidenced by this Right Certificate [ ] are [ ] are
not beneficially owned by an Acquiring Person or an Affiliate or an Associate
thereof (as such terms are defined in the Rights Agreement); and Form of Reverse
Side of Right Certificate -- continued
(2) after due inquiry and to the best knowledge of the undersigned,
the undersigned [ ] did [ ] did not acquire the Rights evidenced by this Right
Certificate from any person who is, was or subsequently became an Acquiring
Person or an Affiliate or Associate of an Acquiring Person.
Dated: _______________, 19__ __________________________
Signature
Signature Guaranteed:
--------------------------------------------------------------------------------
NOTICE
The signatures in the foregoing Form of Election to Purchase and
Certificate must correspond to the name as written upon the face of this Right
Certificate in every particular, without alteration or enlargement or any change
whatsoever.
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.
In the event the certification set forth above is not completed, the
Company 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
such terms are defined in the Rights Agreement) and, in the case of an
Assignment, will affix a legend to that effect on any Right Certificates issued
in exchange for this Right Certificate.
- B-6 -
EXHIBIT 28
DESCRIPTION OF COMMON STOCK
OF LOUISIANA-PACIFIC CORPORATION
General
The authorized capital stock of Louisiana-Pacific Corporation ("L-P")
consists of 15,000,000 shares of Preferred Stock, $1 par value ("Preferred
Stock"), none of which have been issued, and 75,000,000 shares of Common Stock,
$1 par value ("Common Stock"). All outstanding shares of Common Stock are fully
paid and nonassessable. Holders of Common Stock have no preemptive or conversion
rights and there are no redemption or sinking fund provisions relating to the
Common Stock. As L-P has no Preferred Stock outstanding, there is no restriction
on repurchase or redemption of Common Stock as a result of arrearages in the
payment of dividends or sinking fund installments with respect to any class of
stock issued by L-P. The holders of outstanding shares of Common Stock are
entitled to one vote per share. Voting for directors is not cumulative. The
board of directors of L-P is divided into three classes serving staggered
three-year terms.
Subject to the rights of any Preferred Stock which may be issued in
the future, the holders of Common Stock are entitled to such dividends as the
board of directors may declare out of funds legally available therefor, at such
times and in such amounts as the board deems advisable, and to share pro rata in
all assets of L-P available for distribution to its stockholders upon
liquidation.
Business Combinations
Article Tenth of L-P's Certificate of Incorporation, relating to
certain business combinations, provides that:
(a) At any time a person beneficially owns at least 20 percent of
L-P's outstanding Common Stock, certain mergers or other transactions
involving L-P, including the issuance of voting securities of L-P other
than pursuant to employee benefit plans, must be approved by holders of at
least 75 percent of the outstanding Common Stock unless (i) such person
acquired its Common Stock in a cash tender offer for all the outstanding
Common Stock or has no interest in such merger or other transaction other
than solely as a holder of Common Stock, (ii) certain price requirements
are met, or (iii) such merger or other transaction has been approved by at
least two-thirds of the entire board of directors of L-P;
- 1 -
(b) Changes to L-P's bylaws must be approved by at least two-thirds
of the directors, or by the affirmative vote of holders of at least 75
percent of the outstanding Common Stock;
(c) Directors may only be removed for cause and by the affirmative
vote of holders of at least 75 percent of the outstanding Common Stock; and
(d) Any stockholder action must be taken at a meeting of
stockholders.
Article Tenth may be changed only by the affirmative vote of holders of at least
75 percent of the outstanding Common Stock.
Preferred Stock
The authorized Preferred Stock may be issued in the future without
any further action by the holders of the Common Stock, except as provided in
Article Tenth of L-P's Certificate of Incorporation discussed above. The board
of directors is authorized to divide the Preferred Stock into series and within
the limitations provided by law and L-P's charter, to designate the different
series and fix and determine the relative rights and preferences of any series
so established. If Preferred Stock is issued, the rights of the holders of
Common Stock will be subordinated in certain respects to the rights of the
holders of the Preferred Stock.
Preferred Stock Purchase Rights
Effective June 6, 1988, L-P distributed purchase rights ("Rights") to
holders of Common Stock on the basis of one Right for each share pursuant to a
Rights Agreement. A copy of the Rights Agreement as amended and restated as of
February 3, 1991 (the "Rights Agreement"), may be obtained by stockholders from
L-P. Each Right entitles the registered holder to purchase from L-P one
one-hundredth of a share of Series A Junior Participating Cumulative Preferred
Stock, $1 par value, of L-P (the "Preferred Shares"). The Rights are not
exercisable and are attached to and trade with shares of Common Stock until the
earlier of (i) 10 days following a public announcement that a person, other than
certain exempt persons, has acquired, or obtained the right to acquire,
beneficial ownership of 20 percent or more of the outstanding Common Stock,
other than pursuant to a Qualifying Tender Offer (as defined) (an "Acquiring
Person"), or (ii) 10 business days following the commencement of, or
announcement of an intention to make, a tender offer or exchange offer (other
than a Qualifying Tender Offer) the consummation of which would result in the
beneficial ownership by a person of 30 percent or more of the outstanding Common
Stock. Upon such an event, the
- 2 -
Rights will trade separately. When the Rights first become exercisable, holders
of the Rights will be entitled to receive, upon exercise and the payment of
$75.00 per Right (the "Purchase Price"), one one-hundredth of a Preferred Share.
Unless the Rights are earlier redeemed or exchanged, in the event that a person
becomes an Acquiring Person, each holder of a Right (other than Rights
beneficially owned by the Acquiring Person or certain transferees, which will
thereafter be void) will thereafter have the right to receive, upon exercise and
payment of the Purchase Price, shares of Common Stock having a value equal to
two times the Purchase Price. Similarly, upon the occurrence of certain
acquisition transactions involving L-P, proper provision must be made so that
each holder of a Right (other than Rights beneficially owned by the Acquiring
Person or certain transferees, which will thereafter be void) thereafter will
have the right to receive, upon exercise and payment of the Purchase Price,
common stock of the acquiring company having a value equal to two times the
Purchase Price.
At any time after a person becomes an Acquiring Person and prior to
the acquisition by such Acquiring Person of 50 percent or more of the
outstanding shares of Common Stock, L-P may exchange the Rights (other than
Rights beneficially owned by such Acquiring Person or certain transferees, which
became null and void), in whole or in part, for Common Stock at the rate of one
share per Right, subject to adjustments to prevent dilution.
Each Preferred Share will be entitled to receive upon declaration the
greater of (i) cash and non-cash dividends in an amount equal to 100 times the
per share dividends declared on the Common Stock or (ii) a preferential annual
dividend of $92.00 per share. The holders of Preferred Shares, voting as a
separate class, will be entitled to elect two directors if dividends on such
stock are in arrears in an amount equal to six quarterly dividends. In the event
of liquidation, each Preferred Share will be entitled to receive a liquidation
payment in an amount equal to the greater of $1.00 plus all accrued and unpaid
dividends and distributions or an amount equal to 100 times the aggregate amount
to be distributed per share of Common Stock. Each Preferred Share will have one
vote, voting together with the Common Stock. In the event of any merger,
consolidation, or other transaction in which shares of Common Stock are
exchanged, each Preferred Share will be entitled to receive 100 times the amount
received per share of Common Stock.
The Rights will expire on June 6, 1998, unless earlier redeemed or
exchanged by L-P. Until the close of business on the earlier of (i) the 10th day
following public announcement that a person has become an Acquiring Person or
(ii) the expiration date of the Rights, the Rights may be redeemed at
- 3 -
L-P's election in whole, but not in part, at a price of $.01 per Right. L-P's
right of redemption may be reinstated if an Acquiring Person reduces his
beneficial ownership to 10 percent or less of the outstanding Common Stock in a
transaction not involving a purchase by L-P.
The Rights have certain antitakeover effects, but should not
discourage a Qualifying Tender Offer or interfere with any merger or other
business combination approved by L-P's board of directors at a time when the
Rights are redeemable. The Rights will cause substantial dilution to a person or
group that attempts to acquire L-P on terms not approved by L-P's board of
directors except pursuant to a Qualifying Tender Offer.
- 4 -
RIGHTS AGREEMENT, AS RESTATED
AMENDMENT XX. 0
Xxxxxxxxx Xx. 0, dated as of July 28, 1995 (the "Amendment"), to the
Rights Agreement, restated as of February 3, 1991 (the "Rights Agreement"),
between Louisiana-Pacific Corporation, a Delaware corporation (the "Company"),
and First Chicago Trust Company of New York, a New York corporation (the "Rights
Agent").
WITNESSETH:
WHEREAS, the Company and the Rights Agent entered into the Rights
Agreement; and
WHEREAS, on July 28, 1995, the Board of Directors of the Company, in
accordance with Section 27 of the Rights Agreement, determined it desirable and
in the best interest of the Company and its stockholders to supplement and amend
certain provisions of the Rights Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
Section 1. Amendment to Section 1(a). Section 1(a) of the Rights
Agreement is amended to read in its entirety as follows:
"(a) 'Acquiring Person' shall mean any Person (as defined) who
or which, together with all Affiliates and Associates (as defined) of
such Person, shall be the Beneficial Owner (as defined) of 15 percent
or more of the Common Shares of the Company then outstanding, provided,
however, that an Acquiring Person shall not include the Company, any
wholly-owned Subsidiary of the Company, any employee benefit plan
("Plan") of the Company or of a Subsidiary of the Company, or any
Person holding Common Shares of the Company for or pursuant to the
terms of any such Plan. Notwithstanding the foregoing: (i) no Person
shall become an 'Acquiring Person' as the result of an acquisition of
Common Shares of the Company by the Company which, by reducing the
number of Common Shares of the Company outstanding, increases the
proportionate number of Common Shares of the Company beneficially owned
by such Person to 15 percent or more of the Common Shares of the
Company then outstanding, provided, however, that if a Person shall
become the Beneficial Owner of
15 percent or more of the Common Shares of the Company then outstanding
by reason of such share acquisitions by the Company and shall
thereafter become the Beneficial Owner of any additional Common Shares
of the Company, then such Person shall be deemed to be an 'Acquiring
Person' unless upon the consummation of the acquisition of such
additional Common Shares of the Company such Person does not own 15
percent or more of the Common Shares of the Company then outstanding;
and (ii) if the Board of Directors determines in good faith that a
Person who would otherwise be an 'Acquiring Person' became such
inadvertently (including, without limitation, because (A) such Person
was unaware that it beneficially owned a percentage of the Common
Shares of the Company that would otherwise cause such Person to be an
'Acquiring Person' or (B) such Person was aware of the extent of its
Beneficial Ownership of Common Shares of the Company but had no actual
knowledge of the consequences of such Beneficial Ownership under this
Agreement) and without any intention of changing or influencing control
of the Company, and if such Person as promptly as practicable divested
or divests itself of Beneficial Ownership of a sufficient number of
Common Shares of the Company so that such Person would no longer be an
'Acquiring Person', then such Person shall not be deemed to be or to
have become an 'Acquiring Person' for any purposes of this Agreement.
For purposes of this subsection (a), in determining the percentage of
the outstanding shares of Common Shares of the Company with respect to
which a Person is the Beneficial Owner (i) all shares as to which such
Person is deemed the Beneficial Owner shall be deemed outstanding and
(ii) shares which are subject to issuance upon the exercise or
conversion of outstanding conversion rights, rights, warrants and
options other than those referred to in clause (i) of this sentence
shall not be deemed outstanding. Any determination made by the Board of
Directors as to whether any Person is or is not an 'Acquiring Person'
shall be conclusive and binding upon all holders of Rights.
Section 2. Amendment to Section 1(j). Section 1(j) of the Rights
Agreement is deleted.
Section 3. Amendment to Section 3(a). The first sentence of Section
3(a) of the Rights Agreement is amended by (i) deleting the parenthetical clause
"(other than a tender offer which would, upon acceptance of shares for payment,
be a Qualifying Tender Offer)", and (ii) deleting the number "30" and inserting
in lieu thereof the number "15."
Section 4. Amendments to Section 13(a). (a) The first sentence of
Section 13(a) of the Rights Agreement is amended by deleting clause (ii) of said
sentence and inserting in lieu thereof the following "(ii) any Person (other
than a Subsidiary of the Company in a transaction which complies with Section
11(o) hereof) 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 consolidation or merger, all or part of the
Common Shares shall be changed into or exchanged for stock or other securities
of the Company or of any other Person or cash or any other property, or."
(b) The first sentence of Section 13(a) of the Rights Agreement is
further amended by deleting the phrase "(other than the Company or any of its
Subsidiaries) in one or more transactions each of which complies with Section
11(o)" appearing in clause (iii) of said sentence and inserting in lieu thereof
the phrase "(other than the Company or any of its wholly owned Subsidiaries in
one or more transactions each of which complies with Section 11(o))", and by
deleting the phrase "to any other Person or Persons (other than the Company or
one or more of its wholly owned Subsidiaries)" appearing in said sentence.
Section 5. Amendment to Section 23(a). Section 23(a) of the Rights Agreement is
amended so as to read in its entirety as follows:
"(a) The Company may, at its option, by action of the Board of
Directors at any time prior to the earlier of (i) the time that any
Person first becomes an Acquiring Person or (ii) the close of business
on the Final Expiration Date, redeem all, but not less than all, the
then outstanding Rights at a redemption price of $.01 per Right as such
amount may be appropriately adjusted to reflect any stock split, stock
dividend or similar transaction occurring after February 3, 1991 (such
redemption price being hereinafter referred to as the 'Redemption
Price'."
Section 6. Amendment to Section 23(b). Section 23(b) of the Rights
Agreement is deleted.
Section 7. Amendment to Section 24(c). Section 24(c) is amended to read
in its entirety as follows:
"(c) In any exchange pursuant to this Section 24, the Company,
at its option, may substitute Preferred Shares (or equivalent preferred
shares, as such term is defined in Section 11(b)) for Common Shares
exchangeable for Rights, at the initial rate (as of February 3, 1991)
of one-hundredth of a Preferred Share (or equivalent preferred share)
for each Common Share, as appropriately adjusted to
reflect subsequent adjustments in the rights of the Preferred Shares
pursuant to the terms thereof, so that the fraction of a Preferred
Share delivered in lieu of each Common Share shall have the same rights
to participate (taking into account any minimum preferential amounts)
in dividends and distributions upon liquidation, dissolution or winding
of the Company, as one Common Share."
Section 8. Amendment to Section 27(a). The first two sentences of
Section 27(a) are amended by deleting the words "Distribution Date" each place
that such words appear therein and inserting in lieu thereof the words
"occurrence of a Section 11(a)(ii) event."
Section 9. Rights Agreement as Amended. The term "Agreement" as used in
the Rights Agreement shall be deemed to refer to the Rights Agreement as amended
hereby. This Amendment shall be effective as of the date hereof and, except as
set forth herein, the Rights Agreement shall remain in full force and effect and
be otherwise unaffected hereby.
Section 10. Counterparts. This Amendment 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 of such counterparts shall together constitute but
one in the same instrument.
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed and their respective seals to be hereunto affixed and attested, all as
of the day and year first above written.
Attest: LOUISIANA-PACIFIC CORPORATION
By /s/ XXXXX X. XXXXXXXX By /s/ XXXXXXX X. XXXXXX
Xxxxx X. Xxxxxxxx Xxxxxxx X. Xxxxxx
Treasurer and Chief
Financial Officer
FIRST CHICAGO TRUST COMPANY
OF NEW YORK
By /s/ XXXXX XXXXXXX By /s/ XXXXXX XXXXXXXXXX
Xxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx
Assistant Vice President
RIGHTS AGREEMENT, AS RESTATED
AMENDMENT XX. 0
Xxxxxxxxx Xx. 0, dated as of October 30, 1995 (the "Amendment"), to
the Rights Agreement, restated as of February 3, 1991 and as amended by
Amendment No. 1 thereto dated as of July 28, 1995 (the "Rights Agreement"),
between Louisiana-Pacific Corporation, a Delaware corporation (the "Company"),
and First Chicago Trust Company of New York, a New York corporation (the "Rights
Agent").
WITNESSETH:
WHEREAS, the Company and the Rights Agent have entered into the Rights
Agreement; and
WHEREAS, on October 29, 1995, the Board of Directors of the Company,
in accordance with Section 27 of the Rights Agreement, determined it desirable
and in the best interest of the Company and its stockholders to supplement and
amend certain provisions of the Rights Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
Section 1. Amendment to Section 7(c). The first sentence of Section
7(c) of the Rights Agreement is amended to read in its entirety as follows: "The
Purchase Price for each one one-hundredth of a Preferred Share pursuant to the
exercise of a Right shall be $200.00, and shall be payable in lawful money of
the United States of America in accordance with Section 7(d) hereof."
Section 2. Rights Agreement as Amended. The term "Agreement" as used
in the Rights Agreement shall be deemed to refer to the Rights Agreement as
amended hereby. This Amendment shall be effective as of the date hereof and,
except as set forth herein, the Rights Agreement shall remain in full force and
effect and be otherwise unaffected hereby.
Section 3. Counterparts. This Amendment 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 of such counterparts shall together constitute but
one in the same instrument.
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed and their respective seals to be hereunto affixed and attested, all as
of the day and year first above written.
Attest: LOUISIANA-PACIFIC CORPORATION
By /s/ Xxxxx X. Xxxxxxxx By /s/ Xxxxxxx X. Xxxxxx
Xxxxx X. Xxxxxxxx Xxxxxxx X. Xxxxxx
Treasurer and
Chief Financial Officer
FIRST CHICAGO TRUST COMPANY
OF NEW YORK
By /s/ Xxxxx Xxxxxxx By /s/ Xxxxxx Xxxxxxxxxx
Xxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx
Assistant Vice President
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