EXHIBIT 99.3
Execution Copy
------------------------------------------
RIGHTS AGREEMENT
between
XXXXXX CORPORATION
and
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
Dated as of July 27, 2000
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TABLE OF CONTENTS
Page
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Section 1. Certain Definitions.............................................................................1
Section 2. Appointment of Rights Agent.....................................................................5
Section 3. Issue of Right Certificates.....................................................................5
Section 4. Form of Right Certificates......................................................................7
Section 5. Countersignature and Registration...............................................................7
Section 6. Transfer, Split Up, Combination and Exchange of Right Certificates;
Mutilated, Destroyed, Lost or Stolen Right Certificates.........................................8
Section 7. Exercise of Rights; Purchase Price; Expiration Date.............................................8
Section 8. Cancellation and Destruction of Right Certificates..............................................9
Section 9. Reservation and Availability of Capital Stock..................................................10
Section 10. Preferred Stock Record Date....................................................................10
Section 11. Adjustment of Purchase Price, Number and Kind of Stock or Number of
Rights.........................................................................................11
Section 12. Certificate of Adjusted Purchase Price or Number of Shares.....................................17
Section 13. Consolidation, Merger or Sale or Transfer of Assets or Earning Power...........................17
Section 14. Fractional Rights and Fractional Shares........................................................18
Section 15. Rights of Action...............................................................................19
Section 16. Agreement of Right Holders.....................................................................20
Section 17. Right Certificate Holder Not Deemed a Stockholder..............................................20
Section 18. Rights Agent...................................................................................21
Section 19. Merger or Consolidation or Change of Name of Rights Agent......................................21
Section 20. Terms and Conditions of Rights Agent's Appointment.............................................22
(i)
PAGE
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Section 21. Change of Rights Agent.........................................................................24
Section 22. Issuance of New Right Certificates.............................................................25
Section 23. Redemption.....................................................................................25
Section 24. Exchange.......................................................................................26
Section 25. Notice of Certain Events.......................................................................27
Section 26. Notices........................................................................................28
Section 27. Supplements and Amendments.....................................................................28
Section 28. Successors.....................................................................................29
Section 29. Determinations and Actions by the Board........................................................29
Section 30. Benefits of this Agreement.....................................................................29
Section 31. Severability...................................................................................30
Section 32. Governing Law..................................................................................30
Section 33. Counterparts...................................................................................30
Section 34. Descriptive Headings...........................................................................30
Signatures ......................................................................................................31
Exhibit A - Form of Certificate of Designations, Preferences and Rights of
Series A Junior Participating Preferred Stock of Xxxxxx
Corporation
Exhibit B - Form of Right Certificate
Exhibit C - Summary of Rights to Purchase Preferred
Stock or Common Stock
(ii)
RIGHTS AGREEMENT
THIS RIGHTS AGREEMENT (the "AGREEMENT"), is made as of July 27, 2000,
between XXXXXX CORPORATION, a Delaware corporation, with offices at 00 Xxxxxxxx
Xxxxxx, Xxxxxxx, Xxx Xxxx 00000-0000 (the "CORPORATION"), and CHASEMELLON
SHAREHOLDER SERVICES, L.L.C., a New Jersey limited liability company (the
"RIGHTS AGENT").
WHEREAS, the Board of Directors of the Corporation (the "BOARD")
desires to provide all stockholders of the Corporation with the opportunity to
benefit from the long-term prospects and value of the Corporation and to ensure
that all stockholders of the Corporation receive fair and equal treatment in the
event of any proposed takeover of the Corporation; and
WHEREAS, on July 27, 2000 the Board authorized and declared a dividend
of one (1) preferred stock purchase right ("RIGHT") for each share of Common
Stock (as hereinafter defined) of the Corporation outstanding at the close of
business on September 11, 2000, (the "RECORD DATE"), each Right representing the
right to purchase from the Corporation one one-hundredth (1/100) (subject to
adjustment) interest in a share of Preferred Stock (as hereinafter defined),
upon the terms and subject to the conditions set forth herein, and further
authorized and directed the issuance of one (1) Right (subject to adjustment)
with respect to each share of Common Stock that shall become outstanding between
the Record Date and the earliest of the Distribution Date, the Redemption Date
and the Final Expiration Date (as each is hereinafter defined).
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth, the parties hereby agree as follows:
SECTION 1. CERTAIN DEFINITIONS. For purposes of this Agreement, the
following terms have the meanings indicated:
(a) "ACQUIRING PERSON" shall mean any Person who or which, together
with all Affiliates and Associates of such Person, shall be the Beneficial Owner
of fifteen percent (15%) or more of the Common Stock of the Corporation then
outstanding, but shall not include the Corporation, any Subsidiary of the
Corporation, any employee benefit plan of the Corporation or any Subsidiary of
the Corporation or any entity holding Common Stock for or pursuant to the terms
of any such plan. Notwithstanding the foregoing, no Person shall become an
"Acquiring Person" as the result of an acquisition of Common Stock by the
Corporation which, by reducing the number of shares outstanding, increases the
proportionate number of shares beneficially owned by such Person to fifteen
percent (15%) or more of the Common Stock of the Corporation then outstanding;
provided, however, that if a Person becomes the Beneficial Owner of fifteen
percent (15%) or more of the Common Stock of the Corporation then outstanding by
reason of share purchases by the Corporation and shall, after such share
purchases by the Corporation, become the Beneficial Owner of any additional
Common Stock of the Corporation, then such Person shall be deemed to be an
"Acquiring Person" unless upon the consummation of the acquisition of such
additional Common Stock such Person does not own fifteen percent (15%) or more
of the Common Stock then outstanding.
Notwithstanding the foregoing, if (i) a Person who would otherwise be
an "Acquiring Person" became such inadvertently (including, without limitation,
because (A) such Person was
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unaware that it, he or she beneficially owned a percentage of Common Stock that
would otherwise cause such Person to be an "Acquiring Person," or (B) such
Person was aware of the existence of its, his or her Beneficial Ownership of
Common Stock 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 Corporation, but in no event if such Person
beneficially owned or owns in excess of sixteen percent (16%) of the Common
Stock of the Corporation then outstanding, and if such Person as promptly as
practicable, but in no event later than ten (10) business days after becoming
aware of such ownership of Common Stock of the Corporation or of such
consequences, divested or divests itself of Beneficial Ownership of a sufficient
number of Common Stock so that such person would no longer be an "Acquiring
Person," or (ii) the Board otherwise determines in good faith that a Person who
would otherwise be an "Acquiring Person" became such inadvertently, then such
Person shall not be deemed to be or to have become an "Acquiring Person" for any
purposes of this Agreement.
(b) "AFFILIATE" (whether referred to as an "AFFILIATE" of, or a Person
"AFFILIATED" with, a specified Person) shall mean a Person that directly, or
indirectly through one (1) or more intermediaries, controls, or is controlled
by, or is under common control with, the Person specified.
(c) "ASSOCIATE," when used to indicate a relationship with any Person,
shall mean:
(i) any corporation or organization (other than the
Corporation or a Subsidiary of the Corporation) of which such Person is
an officer or partner or is, directly or indirectly, either alone or
together with one (1) or more members of his immediate family, the
Beneficial Owner of ten percent (10%) or more of any class of equity
securities;
(ii) any trust or other estate in which such Person has a
substantial beneficial interest or as to which such Person serves as a
trustee or in a similar fiduciary capacity; and
(iii) any relative or spouse of such Person or any relative of
such spouse, who has the same home as such Person or who is a director
or officer of the Corporation or any of its Subsidiaries or Affiliates.
(d) A Person shall be deemed the "BENEFICIAL OWNER" of and shall be
deemed to "BENEFICIALLY OWN" any securities:
(i) which such Person or any of such Person's Affiliates or
Associates beneficially owns, directly or indirectly;
(ii) which such Person or any of such Person's Affiliates or
Associates has (A) the right to acquire (whether such right is
exercisable immediately or only after the passage of time) pursuant to
any agreement, arrangement or understanding (other than customary
agreements with and between underwriters and selling group members with
respect to a bona fide public offering of securities), or upon the
exercise of conversion rights, exchange rights, rights (other than the
Rights issued hereunder), 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
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Person or any of such Person's Affiliates or Associates until such
tendered securities are accepted for purchase or exchange; or (B) the
right to vote pursuant to any agreement, arrangement or understanding;
provided, however, that a Person shall not be deemed the Beneficial
Owner of, or to beneficially own, any security if the agreement,
arrangement or understanding to vote such security (1) arises solely
from a revocable proxy or consent given to such Person in response to a
public proxy or consent solicitation made pursuant to, and in
accordance with, the applicable Rules and Regulations promulgated under
the Exchange Act, and (2) is not also then reportable under the
Exchange Act on Schedule 13D under the Rules and Regulations of the SEC
(or any comparable or successor reports); or
(iii) which are beneficially owned, directly or indirectly, by
any other Person with which such Person or any of such Person's
Affiliates or Associates has any agreement, arrangement or
understanding (other than customary agreements with and between
underwriters and selling group members with respect to a bona fide
public offering of securities) for the purpose of acquiring, holding,
voting (except to the extent contemplated by the proviso to Section
1(d)(ii)(B) hereof) or disposing of any securities of the Corporation.
Notwithstanding the foregoing, none of the corporation's directors,
officers, employees or financial advisors shall be deemed to be the Beneficial
Owner of, or to beneficially own, any Common Stock owned by any other director,
officer, employee or financial advisor of the Corporation by virtue of such
persons acting in their capacities as such, including, without limitation, in
connection with any formulation and publication of the Board's recommendation of
a position, and any actions taken in furtherance thereof, with respect to any
acquisition proposal relating to the Corporation, any tender or exchange offer
for the Common Stock, or any solicitation of proxies with respect to the Common
Stock.
(e) "BUSINESS DAY" shall mean any day other than a Saturday, a Sunday
or a day on which banking institutions in the State of New York are authorized
or obligated by law or executive order to close.
(f) "CLOSE OF BUSINESS" on any given date shall mean 5:00 p.m., Eastern
Standard Time, on such date; provided, however, that if such date is not a
Business Day it shall mean 5:00 p.m., Eastern Standard Time, on the next
succeeding Business Day.
(g) "COMMON STOCK" when used with reference to the Corporation shall
mean the shares of common stock, par value TEN CENTS ($0.10) per share, of the
Corporation. "Common Stock" when used with reference to any Person other than
the Corporation shall mean the capital stock (or equity interest) with the
greatest voting power of such other Person or, if such other Person is a
Subsidiary of another Person, the Person or Persons that ultimately control such
first-mentioned Person.
(h) "DISTRIBUTION DATE" shall have the meaning set forth in Section 3
hereof.
(i) "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended.
(j) "EXCHANGE RATIO" shall have the meaning set forth in Section 24(a)
hereof.
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(k) "FINAL EXPIRATION DATE" shall have the meaning set forth in Section
7(a) hereof.
(l) "NASDAQ" shall mean the National Association of Securities Dealers,
Inc. Automated Quotation System.
(m) "PERSON" shall mean any individual, firm, corporation, partnership,
limited liability company, joint venture, trust, association, unincorporated
organization or other entity, and shall include any successor (by merger or
otherwise) of such entity.
(n) "PREFERRED STOCK" shall mean shares of Series A Junior
Participating Preferred Stock, par value ONE DOLLAR ($1.00) per share, of the
Corporation having the rights and preferences set forth in the form of EXHIBIT A
hereto.
(o) "PURCHASE PRICE" shall have the meaning set forth in Section 4
hereof.
(p) "RECORD DATE" shall mean the Close of Business on September 11,
2000.
(q) "REDEMPTION DATE" shall have the meaning set forth in Section 7(a)
hereof.
(r) "REDEMPTION PRICE" shall have the meaning set forth in Section
23(b) hereof.
(s) "RIGHT CERTIFICATE" shall have the meaning set forth in Section 3
hereof having the characteristics set forth in EXHIBIT B hereto.
(t) "RULES AND REGULATIONS" shall mean the applicable rules and
regulations promulgated by the SEC, or any applicable federal or state
regulatory agency or authority that has jurisdiction over the Corporation at the
relevant time.
(u) "SEC" shall mean the Securities and Exchange Commission.
(v) "SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
(w) "SECURITY" shall have the meaning set forth in Section 11(d)(i)
hereof.
(x) "SHARES ACQUISITION DATE" shall mean the first date of public
announcement (which, for purposes of this definition, shall include, without
limitation, a report filed pursuant to section 13(d) of the Exchange Act) by the
Corporation or an Acquiring Person that an Acquiring Person has become such.
(y) "SUBSIDIARY" of any Person shall mean any corporation or other
Person of which a majority of the voting power of the voting equity securities
or equity interest is owned, directly or indirectly, by such Person.
(z) "SUMMARY OF RIGHTS" shall have the meaning set forth in Section
3(c) hereof.
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(aa) "TRADING DAY" shall mean a day on which the principal national
securities exchange on which the Security is listed or admitted to trading is
open for the transaction of business or, if the Security is not listed or
admitted to trading on any national securities exchange, a Business Day.
(bb) "VOTING STOCK" shall mean (i) the Common Stock of the Corporation
and (ii) any other shares of capital stock of the Corporation entitled to vote
generally in the election of directors or entitled to vote together with the
Common Stock in respect of any merger, consolidation, sale of all or
substantially all of the Corporation's assets, liquidation, dissolution or
winding up.
SECTION 2. APPOINTMENT OF RIGHTS AGENT. The Corporation hereby appoints
the Rights Agent to act as agent for the Corporation in accordance with the
terms and conditions hereof, and the Rights Agent hereby accepts such
appointment. The Corporation may from time to time appoint such co-Rights Agents
as it may deem necessary or desirable upon ten (10) days' prior written notice
to the Rights Agent. The Rights Agent shall have no liability for or duty to
supervise any such co-Rights Agent.
SECTION 3. ISSUE OF RIGHT CERTIFICATES.
(a) From the date hereof until, but not including, the Distribution
Date, (i) the Rights will be evidenced (subject to the provisions of Section
3(c) hereof) by the certificates for Common Stock registered in the names of the
holders thereof and not by separate Right Certificates, and (ii) the right to
receive Right Certificates will be transferable only in connection with the
transfer of Common Stock. As soon as practicable after the Distribution Date,
the Corporation will notify the Rights Agent in writing of the occurrence of the
Distribution Date, the Corporation will provide the Rights Agent with the names
and addresses of all record holders of Common Stock, and the Corporation will
prepare and execute, the Rights Agent will countersign, and the Corporation will
send or cause to be sent (and the Rights Agent will, if requested, at the
Corporation's expense, send) by first-class, insured, postage-paid mail, to each
record holder of Common Stock as of the Close of Business on the Distribution
Date, at the address of such holder shown on the records of the Corporation, a
Right Certificate, in substantially the form of EXHIBIT B hereto (a "RIGHT
CERTIFICATE"), evidencing one (1) Right (subject to adjustment) for each share
of Common Stock so held. As of the Distribution Date, the Rights will be
evidenced solely by such Right Certificates.
(b) For purposes of the foregoing, the Distribution Date shall be the
earlier of (i) the Close of Business on the twentieth (20th) Business Day after
the Shares Acquisition Date or (ii) the Close of Business on the twentieth
(20th) Business Day (or such later date as may be determined by the Board in its
sole discretion) after the date of the commencement by any Person (other than
the Corporation, any Subsidiary of the Corporation, any employee benefit plan of
the Corporation or of any Subsidiary of the Corporation or any entity holding
Common Stock for or pursuant to the terms of any such plan) of, or of the first
public announcement of the intention of any Person (other than the Corporation,
any Subsidiary of the Corporation, any employee benefit plan of the Corporation
or of any Subsidiary of the Corporation or any entity holding Common Stock of
the Corporation for or pursuant to the terms of any such plan) to commence, a
tender or exchange offer, the consummation of which would result in any Person
becoming the Beneficial Owner of Common Stock of the Corporation aggregating
fifteen percent (15%) or more of the then outstanding Common
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Stock (including any such date that is after the date of this Agreement and
prior to the issuance of the Rights).
(c) On the Record Date, or as soon as practicable thereafter, the
Corporation will send a copy of a Summary of Rights to Purchase Preferred Stock
or Common Stock, in substantially the form of EXHIBIT C hereto (the "SUMMARY OF
RIGHTS"), by first-class, postage-prepaid mail, to each record holder of Common
Stock as of the Close of Business on the Record Date, at the address of such
holder shown on the records of the Corporation. With respect to certificates for
Common Stock outstanding as of the Record Date, until the Distribution Date, the
Rights will be evidenced by such certificates registered in the names of the
holders thereof together with a copy of the Summary of Rights. Until the
Distribution Date (or the earlier of the Redemption Date or the Final Expiration
Date), the surrender for transfer of any certificate for Common Stock
outstanding on the Record Date, with or without a copy of the Summary of Rights,
shall also constitute the transfer of the Rights associated with the Common
Stock represented thereby.
(d) Certificates for shares of Common Stock that become outstanding
(including, without limitation, reacquired Common Stock referred to in this
paragraph (d)) after the Record Date but prior to the earliest of the
Distribution Date, the Redemption Date or the Final Expiration Date shall have
impressed on, printed on, written on or otherwise affixed to them the following
legend:
THIS CERTIFICATE ALSO EVIDENCES AND ENTITLES
THE HOLDER HEREOF TO CERTAIN RIGHTS AS SET
FORTH IN A RIGHTS AGREEMENT BETWEEN XXXXXX
CORPORATION AND CHASEMELLON SHAREHOLDER
SERVICES, L.L.C., AS RIGHTS AGENT, DATED AS OF
JULY 27, 2000, AS THE SAME MAY BE AMENDED FROM
TIME TO TIME, (THE "RIGHTS AGREEMENT"), THE
TERMS OF WHICH ARE HEREBY INCORPORATED HEREIN
BY REFERENCE AND A COPY OF WHICH IS ON FILE AT
THE PRINCIPAL EXECUTIVE OFFICES OF XXXXXX
CORPORATION. UNDER CERTAIN CIRCUMSTANCES, AS
SET FORTH IN THE RIGHTS AGREEMENT, SUCH RIGHTS
WILL BE EVIDENCED BY SEPARATE CERTIFICATES AND
WILL NO LONGER BE EVIDENCED BY THIS
CERTIFICATE. XXXXXX CORPORATION WILL MAIL TO
THE HOLDER OF THIS CERTIFICATE A COPY OF THE
RIGHTS AGREEMENT WITHOUT CHARGE AFTER RECEIPT
OF A WRITTEN REQUEST THEREFOR. AS DESCRIBED IN
THE RIGHTS AGREEMENT, RIGHTS OWNED BY ANY
PERSON WHO IS OR BECOMES AN ACQUIRING PERSON
(AS DEFINED IN THE RIGHTS AGREEMENT) AND
CERTAIN TRANSFEREES THEREOF SHALL BECOME NULL
AND VOID.
With respect to such certificates containing the foregoing legend, until the
Distribution Date, the Rights associated with the Common Stock represented by
such certificates shall be evidenced by such certificates alone, and the
surrender for transfer of any such certificates shall also constitute the
transfer of the Rights associated with the Common Stock represented thereby. In
the event that the Corporation purchases or acquires any Common Stock after the
Record Date but prior to the Distribution Date, any Rights associated with such
Common Stock shall be deemed canceled and retired so that the Corporation shall
not be entitled to exercise any Rights associated with the shares of Common
Stock that are no longer outstanding. The Rights Agent shall deem any such Right
Certificates not outstanding if it has actual knowledge that they are owned by
the Corporation.
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SECTION 4. FORM OF RIGHT CERTIFICATES. The Right Certificates (and the
form of election to purchase Preferred Stock and the form of assignment printed
on the reverse thereof) shall be substantially in the form of EXHIBIT B hereto.
The Right Certificates shall be in machine printable format and in a form
reasonably satisfactory to the Rights Agent, and may have such marks of
identification or designation and such legends, summaries or endorsements
printed thereon as the Corporation may deem appropriate and as are not
inconsistent with the provisions of this Agreement, or as may be required to
comply with any applicable law or with any Rule or Regulation made pursuant
thereto or with any rule or regulation of any stock exchange on which the Rights
may from time to time be listed, or to conform to usage. Subject to the
provisions of Section 22 hereof, the Right Certificates shall entitle the
holders thereof to purchase such number of one one-hundredth (1/100) interests
in a share of Preferred Stock as shall be set forth therein at the price per one
one-hundredth (1/100) interest in a share of Preferred Stock set forth therein
(the "PURCHASE PRICE"), but the number of such one one-hundredth (1/100)
interests in a share of Preferred Stock 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
Corporation by its Chairman of the Board, its President or any Vice President,
either manually or by facsimile signature, shall have affixed thereto the
Corporation's seal or a facsimile thereof and shall be attested by the Secretary
or an Assistant Secretary of the Corporation, either manually or by facsimile
signature. The Right Certificates shall be countersigned and dated by an
authorized signatory of the Rights Agent either manually or by facsimile
signature and shall not be valid for any purpose unless countersigned. In case
any officer of the Corporation who shall have signed any of the Right
Certificates shall cease to be such officer of the Corporation before
countersignature by the Rights Agent and issuance and delivery by the
Corporation, such Right Certificates, nevertheless, may be countersigned by the
Rights Agent and issued and delivered by the Corporation with the same force and
effect as though the person who signed such Right Certificates had not ceased to
be such officer of the Corporation; and any Right Certificate may be signed on
behalf of the Corporation by any person who, at the actual date of the execution
of such Right Certificate, shall be a proper officer of the Corporation to sign
such Right Certificate, although at the date of the execution of this Rights
Agreement any such person was not such an officer.
(b) Following the Distribution Date, the Rights Agent will keep or
cause to be kept, at its designated office, pursuant to Section 26, 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. In case any
authorized signatory of the Rights Agent who shall have countersigned any of the
Right Certificates shall cease to be such signatory before delivery of the Right
Certificates by the Corporation, such Right Certificates, nevertheless, may be
issued and delivered by the Corporation with the same force and effect as though
the person who countersigned such Right Certificates had not ceased to be such
signatory; and any Right Certificate may be countersigned on behalf of the
Rights Agent by any person who, at the actual date of the countersignature of
such Right Certificate, shall be a proper signatory of the Rights Agent to
countersign such Right Certificate, although at the date of the execution of
this Agreement any such person was not such a signatory.
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SECTION 6. TRANSFER, SPLIT UP, COMBINATION AND EXCHANGE OF RIGHT
CERTIFICATES; MUTILATED, DESTROYED, LOST OR STOLEN RIGHT
CERTIFICATES.
(a) Subject to the provisions of Section 14 hereof, at any time after
the Close of Business on the Distribution Date, and at or prior to the Close of
Business on the earlier of the Redemption Date or the Final Expiration Date, any
Right Certificate or Right Certificates (other than Right Certificates
representing Rights that have become null and void pursuant to Section 11(a)(ii)
hereof or that have been exchanged pursuant to Section 24 hereof) may be
transferred, split up, combined or exchanged for another Right Certificate or
Right Certificates, entitling the registered holder to purchase a like number of
one one-hundredth (1/100) interests in a share of Preferred Stock as the Right
Certificate or Right Certificates surrendered then entitled such holder to
purchase. Any registered holder desiring to transfer, split up, combine or
exchange any Right Certificate or Right Certificates shall make such request in
writing delivered to the Rights Agent and shall surrender the Right Certificate
or Right Certificates to be transferred, split up, combined or exchanged at the
designated office of the Rights Agent, pursuant to Section 26, along with a
signature guarantee and such other and further documentation as the Corporation
or the Rights Agent may reasonably require.
Neither the Rights Agent nor the Corporation shall be obligated to take any
action whatsoever with respect to the transfer of any such surrendered Right
Certificate until the registered holder shall have properly completed and signed
the certificate contained in the form of assignment on the reverse side of such
Right Certificate. Thereupon the Rights Agent shall countersign and deliver to
the Person entitled thereto a Right Certificate or Right Certificates, as the
case may be, as so requested from the holders of such Right Certificate. The
Corporation may require payment from the holders of Rights 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. The
Rights Agent shall have no duty or obligation under this Section 6 or any other
similar provision of this Agreement unless and until it is satisfied that all
such taxes and/or governmental charges have been paid in full.
(b) Upon receipt by the Corporation and the Rights Agent of evidence
satisfactory to them of the loss, theft, destruction or mutilation of a Right
Certificate, and, in case of loss, theft or destruction, of indemnity or
security satisfactory to them, and, at the Corporation's or the Rights Agent's
request, reimbursement to the Corporation and the Rights Agent of all reasonable
expenses incidental thereto, and upon surrender of the Right Certificate and a
signature guarantee and such other and further documentation as the Rights Agent
may require and cancellation of the Right Certificate if mutilated, the
Corporation will make and deliver a new Right Certificate of like tenor to the
Rights Agent for countersignature and delivery to the registered holder in lieu
of the Right Certificate so lost, stolen, destroyed or mutilated.
SECTION 7. EXERCISE OF RIGHTS; PURCHASE PRICE; EXPIRATION DATE.
(a) The registered holder of any Right Certificate may exercise the
Rights evidenced thereby (except as otherwise provided herein) in whole or in
part at any time after the Distribution Date upon surrender of the Right
Certificate, with the form of election to purchase on the reverse side thereof
duly executed, to the Rights Agent at the designated office of the Rights Agent,
pursuant to Section 26, together with payment of the Purchase Price for each one
one-hundredth (1/100) interest in a share of Preferred Stock as to which the
Rights are exercised, at or prior to the earliest of (i) the Close of Business
on September 11, 2010 (the "FINAL EXPIRATION DATE"), (ii) the time at
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which the Rights are redeemed as provided in Section 23 hereof (the "REDEMPTION
DATE") or (iii) the time at which such Rights are exchanged as provided in
Section 24 hereof. The Corporation shall provide the Rights Agent with a prompt
written notice of the occurrence of any of the events provided for in this
Section 7(a).
(b) The Purchase Price for each one one-hundredth (1/100) interest in a
share of Preferred Stock pursuant to the exercise of a Right shall initially be
FORTY-FIVE DOLLARS ($45.00), shall be subject to adjustment from time to time as
provided in Sections 11 and 13 hereof and shall be payable in lawful money of
the United States of America in accordance with paragraph (c) below.
(c) Upon receipt of a Right Certificate representing exercisable
Rights, with the form of election to purchase duly executed, accompanied by
payment of the Purchase Price for the shares to be purchased and an amount equal
to any applicable tax or governmental charge required to be paid by the holder
of such Right Certificate in accordance with Section 9 hereof by certified
check, cashier's check or money order payable to the order of the Corporation,
the Rights Agent shall thereupon promptly (i) (A) requisition from any transfer
agent of the Preferred Stock certificates for the number of shares of Preferred
Stock to be purchased, and the Corporation hereby irrevocably authorizes its
transfer agent to comply with all such requests, or (B) requisition from the
depositary agent depositary receipts representing interests in such number of
one one-hundredth (1/100) interests in a share of Preferred Stock as are to be
purchased (in which case certificates for the Preferred Stock represented by
such receipts shall be deposited by the transfer agent with the depositary
agent), and the Corporation hereby directs the depositary agent to comply with
all such requests, (ii) when necessary to comply with this Agreement,
requisition from the Corporation the amount of cash to be paid in lieu of
issuance of fractional shares in accordance with Section 14 hereof, (iii) after
receipt of such certificates or depositary receipts, cause the same to be
delivered to or upon the order of the registered holder of such Right
Certificate, registered in such name or names as may be designated by such
holder and (iv) when necessary to comply with this Agreement, after receipt,
deliver such cash to or upon the order of the registered holder of such Right
Certificate. The provisions of this Section 7(c) shall apply whenever cash or
securities (such as Common Stock) may be received in lieu of the Preferred Stock
upon exercise of the Rights and surrender of the Right Certificates.
(d) In case the registered holder of any Right Certificate shall
exercise less than all the Rights evidenced thereby, a new Right Certificate
evidencing Rights equivalent to the Rights remaining unexercised shall be issued
by the Rights Agent to the registered holder of such Right Certificate or to his
duly authorized assigns, subject to the provisions of Section 14 hereof.
(e) The Corporation covenants and agrees that it will cause to be
reserved and kept available out of its authorized and unissued Preferred Stock
or any Preferred Stock held in its treasury, the number of shares of Preferred
Stock that will be sufficient to permit the exercise in full of all outstanding
Rights in accordance with this Section 7.
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 Corporation 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
9
no Right Certificates shall be issued in lieu thereof except as expressly
permitted by any of the provisions of this Rights Agreement. The Corporation
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 Corporation otherwise than upon the exercise thereof. The
Rights Agent shall deliver all canceled Right Certificates to the Corporation,
or shall, at the written request of the Corporation, destroy such canceled Right
Certificates, and in such case shall deliver a certificate of destruction
thereof to the Corporation.
SECTION 9. RESERVATION AND AVAILABILITY OF CAPITAL STOCK.
(a) The Corporation covenants and agrees that it will take all such
action as may be necessary to ensure that all Preferred Stock delivered upon
exercise of Rights (and, following the date on which a Person becomes an
Acquiring Person, out of its authorized and unissued Common Stock and/or other
securities or out of its authorized and issued shares held in the treasury)
shall, at the time of delivery of the certificates for such Preferred Stock or
Common Stock (subject to payment of the Purchase Price), be duly authorized,
validly issued and fully paid and nonassessable shares.
(b) The Corporation further covenants and agrees that it will pay when
due and payable any and all taxes and charges which may be payable in respect of
the issuance or delivery of the Right Certificates or of any Preferred Stock or
Common Stock upon the exercise of Rights. The Corporation shall not, however, be
required to pay any tax or charge which may be payable in respect of any
transfer or delivery of Right Certificates to a Person other than, or the
issuance or delivery of certificates or depositary receipts for the Preferred
Stock or Common Stock in a name other than that of, the registered holder of the
Right Certificates evidencing Rights surrendered for transfer, delivery or
exercise or to issue or to deliver any certificates or depositary receipts for
Preferred Stock or Common Stock upon the exercise of any Rights until any such
tax or charge shall have been paid (any such tax or charge being payable by the
holder of such Right Certificates at the time of surrender) or until it has been
established to the Corporation's reasonable satisfaction that no such tax or
charge is due.
SECTION 10. PREFERRED STOCK RECORD DATE. Each Person in whose name any
certificate for Preferred Stock is issued upon the exercise of Rights shall for
all purposes be deemed to have become the holder of record of the Preferred
Stock 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 taxes or charges) was made;
provided, however, that if the date of such surrender and payment is a date upon
which the Preferred Stock transfer books of the Corporation are closed, such
Person shall be deemed to have become the record holder of such shares on, and
such certificate shall be dated, the next succeeding Business Day on which the
Preferred Stock transfer books of the Corporation are open. Prior to the
exercise of the Rights evidenced thereby, the holder of a Right Certificate
shall not be entitled to any rights of a holder of Preferred Stock for which the
Rights shall be exercisable, including, without limitation, the right to vote,
to receive dividends or other distributions or to exercise any preemptive
rights, and shall not be entitled to receive any notice of any proceedings of
the Corporation, except as provided herein.
10
SECTION 11. ADJUSTMENT OF PURCHASE PRICE, NUMBER AND KIND OF STOCK OR
NUMBER OF RIGHTS.
The Purchase Price, the number of Preferred Stock or other securities
or interests therein covered by each Right and the number of Rights outstanding
are subject to adjustment from time to time as provided in this Section 11.
(a) (i) In the event the Corporation shall at any time after the date
of this Agreement (A) declare a dividend on the Preferred Stock payable
in Preferred Stock, (B) subdivide the outstanding Preferred Stock, (C)
combine the outstanding Preferred Stock into a smaller number of shares
of Preferred Stock or (D) issue any shares of its capital stock in a
reclassification of the Preferred Stock (including any such
reclassification in connection with a consolidation or merger in which
the Corporation is the continuing or surviving corporation), except as
otherwise provided in this Section 11(a), the Purchase Price in effect
at the time of the record date for such dividend or of the effective
date of such subdivision, combination or reclassification, and the
number and kind of shares of capital stock or interests therein
issuable on such date, shall be proportionately adjusted so that the
holder of any Right exercised after such time shall be entitled to
receive the aggregate number and kind of shares of capital stock or
interests therein which, if such Right had been exercised immediately
prior to such date and at a time when the Preferred Stock transfer
books of the Corporation were open, such holder would have owned upon
such exercise and been entitled to receive by virtue of such dividend,
subdivision, combination or reclassification; provided, however, that
in no event shall the consideration to be paid upon the exercise of one
(1) Right be less than the aggregate par value of the shares of capital
stock or interests therein of the Corporation issuable upon exercise of
one (1) Right.
(ii) Subject to Section 24 hereof, in the event any Person
shall become an Acquiring Person, each holder of a Right shall have the
right to receive, upon exercise thereof at a price equal to the then
current Purchase Price multiplied by the number of one one-hundredth
(1/100) interests in a share of Preferred Stock for which a Right is
then exercisable (regardless of whether the Right is then exercisable),
in accordance with the terms of this Agreement and in lieu of interests
in shares of Preferred Stock, such number of shares of Common Stock of
the Corporation as shall equal the result obtained by (A) multiplying
the then current Purchase Price by the number of one one-hundredth
(1/100) interests in a share of Preferred Stock for which a Right is
then exercisable (regardless of whether the Right is then exercisable)
and dividing that product by (B) fifty percent (50%) of the then
current per share market price of the Corporation's Common Stock
(determined pursuant to Section 11(d) hereof) on the date such Person
became an Acquiring Person; provided, however, that the Purchase Price
and the number of shares of Common Stock so purchasable upon exercise
of a Right shall, following the occurrence of such event, be subject to
further adjustment as appropriate in accordance with Section 11(f)
hereof. In the event that any Person shall become an Acquiring Person
and the Rights shall then be outstanding, the Corporation shall not
take any action (except as permitted under Sections 24 and 27 hereof)
that would eliminate or diminish the benefits intended to be afforded
by the Rights, except as provided in Section 23(b) hereof.
Notwithstanding anything in this Agreement to the contrary, from and
after the time any Person becomes an Acquiring Person,
11
any Rights that are or were acquired or beneficially owned by such
Acquiring Person (or any Associate or Affiliate of such Acquiring
Person) shall be null and void, and any holder of such Rights shall
thereafter have no right to exercise such Rights under any provision of
this Agreement. No Right Certificate shall be issued pursuant to
Section 3 hereof that represents Rights beneficially owned by an
Acquiring Person or any Associate or Affiliate thereof whose Rights
would be null and void pursuant to the preceding sentence; no Right
Certificate shall be issued at any time upon the transfer of any Rights
to an Acquiring Person or any Associate or Affiliate thereof or to any
nominee of such Acquiring Person, Associate or Affiliate whose Rights
would be null and void pursuant to the preceding sentence. Where a
Right Certificate is delivered to the Rights Agent for transfer to an
Acquiring Person or an Associate or Affiliate thereof, and the Rights
Agent has actual knowledge or has received notice from the Corporation
that the transferee is an Acquiring Person or an Associate or Affiliate
thereof, that Right Certificate shall be canceled. The Rights Agent
shall have no liability for canceling Right Certificates so delivered
for transfer.
(iii) In the event that there shall not be sufficient Common
Stock issued but not outstanding or authorized but unissued to permit
the exercise in full of the Rights in accordance with the foregoing
subparagraph (ii) of this paragraph (a), (A) the Corporation shall take
all such action as may be necessary to authorize additional Common
Stock for issuance upon exercise of the Rights or (B) the Corporation,
at its option, notwithstanding any other provision of this Agreement,
with respect to each Right, to the extent permitted by applicable law
and any agreements or instruments in effect on the Distribution Date to
which the Corporation is a party, upon exercise of the Rights, may pay
cash and/or securities equal to the Purchase Price per Right, in lieu
of issuing such additional Common Stock and requiring payment therefor.
To the extent that any legal or contractual restrictions prevent the
Corporation from paying the full amount of cash and/or securities
payable in accordance with the foregoing sentence, the Corporation
shall pay to holders of the Rights as to which such payments are being
made all amounts which are not then restricted on a pro rata basis.
The Corporation shall continue to make payments on a pro rata basis as
funds become available until such payments have been paid in full. As
soon as practicable, the Corporation shall provide the Rights Agent
with written notice of any election made pursuant to this Section
11(a)(iii).
(iv) In the event that the Rights become exercisable or
exchangeable under the provisions of this Agreement, the Corporation
covenants and agrees to use its best efforts to (A) cause a
registration statement under the Securities Act, or, if the Securities
Act is not applicable, under the comparable federal or state securities
laws applicable to the Common Stock and Preferred Stock, as in effect
on the date in question, and under the applicable Rules and Regulations
thereunder, on an appropriate form, with respect to the shares
purchasable upon exercise of the Rights or exchangeable for such
Rights, to remain effective (with a prospectus or offering circular at
all times meeting the requirements of the Securities Act or any other
applicable federal or state law) until the Final Expiration Date; (B)
qualify or register the Common Stock or Preferred Stock purchasable
upon exercise of the Rights under the blue sky laws of such
jurisdictions as may be necessary or appropriate; and (C) list the
shares purchasable upon exercise of the Rights on each national
securities exchange on which shares of the same class or series were
listed prior to exercisability of the Rights or,
12
if such shares are not listed or admitted to trading on any national
securities exchange, with the NASDAQ or such other system then in use.
The Corporation covenants and agrees to bear the full cost of any
registration, qualification or listing required under this Section
11(a)(iv).
(b) In case the Corporation shall fix a record date for the issuance of
rights, options or warrants to all holders of Preferred Stock entitling them
(for a period expiring within forty-five (45) calendar days after such record
date) to subscribe for or purchase Preferred Stock (or shares having the same
rights, privileges and preferences as the Preferred Stock ("EQUIVALENT PREFERRED
STOCK")) or securities convertible into Preferred Stock or equivalent preferred
stock at a price per share of Preferred Stock or equivalent preferred stock (or
having a conversion price per share, if a security convertible into Preferred
Stock or equivalent Preferred Stock) less than the then current per share market
price of the Preferred Stock (as defined in Section 11(d) hereof) on such record
date, the Purchase Price to be in effect after such record date shall be
determined by multiplying the Purchase Price in effect immediately prior to such
record date by a fraction, the numerator of which shall be the number of shares
of Preferred Stock outstanding on such record date plus the number of shares of
Preferred Stock which the aggregate offering price of the total number of shares
of Preferred Stock and/or equivalent preferred stock so to be offered (and/or
the aggregate initial conversion price of the convertible securities so to be
offered) would purchase at such current market price and the denominator of
which shall be the number of shares of Preferred Stock outstanding on such
record date plus the number of additional shares of Preferred Stock and/or
equivalent preferred stock to be offered for subscription or purchase (or into
which the convertible securities so to be offered are initially convertible);
provided, however, that in no event shall the consideration to be paid upon the
exercise of one (1) Right be less than the aggregate par value of the shares of
capital stock or interests therein of the Corporation issuable upon exercise of
one (1) Right. In case such subscription price may be paid in a consideration
part or all of which shall be in a form other than cash, the value of such
consideration shall be as determined in good faith by the Board, whose
determination shall be described in a statement filed with the Rights Agent and
binding upon the holders of the Rights. Preferred Stock owned by or held for the
account of the Corporation shall not be deemed outstanding for the purpose of
any such computation. Such adjustments 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
that would then be in effect if such record date had not been fixed.
(c) In case the Corporation shall fix a record date for the making of a
distribution to all holders of the Preferred Stock (including any such
distribution made in connection with a consolidation or merger in which the
Corporation is the continuing or surviving corporation) of evidences of
indebtedness or assets (other than a regular quarterly cash dividend or a
dividend payable in Preferred Stock) or subscription rights or warrants
(excluding those referred to in Section 11(b) hereof), the Purchase Price to be
in effect after such record date shall be determined by multiplying the Purchase
Price in effect immediately prior to such record date by a fraction, the
numerator of which shall be the then current per share market price of the
Preferred Stock on such record date, less the fair market value (as determined
in good faith by the Board, whose determination shall be described in a
statement filed with the Rights Agent and binding upon the holders of the
Rights) of the portion of the assets or evidences of indebtedness so to be
distributed or of such subscription rights or warrants applicable to one (1)
share of Preferred Stock and the
13
denominator of which shall be such current per share market price of the
Preferred Stock; provided, however, that in no event shall the consideration to
be paid upon the exercise of one (1) Right be less than the aggregate par value
of the shares of capital stock (or interests therein) of the Corporation to be
issued upon exercise of one (1) Right. Such adjustments shall be made
successively whenever such a record date is fixed; and in the event that such
distribution is not so made, the Purchase Price shall again be adjusted to be
the Purchase Price that would then be in effect if such record date had not been
fixed.
(d) (i) For the purpose of any computation hereunder, the "CURRENT PER
SHARE MARKET PRICE" of any security (a "SECURITY" for the purpose of
this Section 11(d)(i)) on any date shall be deemed to be the average of
the daily closing prices per share of such Security for the thirty (30)
consecutive Trading Days immediately prior to such date; provided,
however, that in the event that the current per share market price of
the Security is determined during a period following the announcement
by the issuer of such Security of (A) a dividend or distribution on
such Security payable in shares of such Security or securities
convertible into such shares, or (B) any subdivision, combination or
reclassification of such Security and prior to the expiration of thirty
(30) Trading Days after the exdividend date for such dividend or
distribution, or the record date for such subdivision, combination or
reclassification, then, and in each such case, the current per share
market price shall be appropriately adjusted to reflect the current
market price per share equivalent of such Security. The closing price
for each day shall be the last sale price, regular way, or, in case no
such sale takes place on such day, the average of the closing bid and
asked prices, regular way, in either case as reported in the principal
consolidated transaction reporting system with respect to securities
listed or admitted to trading on the American Stock Exchange or, if the
Security is not listed or admitted to trading on the American Stock
Exchange, as reported in the principal consolidated transaction
reporting system with respect to securities listed on the principal
national securities exchange on which the Security is listed or
admitted to trading or, if the Security is not listed or admitted to
trading on any national securities exchange, the last quoted price or,
if not so quoted, the average of the high bid and low asked prices in
the over-the-counter market, as reported by NASDAQ or such other system
then in use, or, if on any such date the Security is not quoted by any
such organization, the average of the closing bid and asked prices as
furnished by a professional market maker making a market in the
Security selected by the Board.
(ii) For the purpose of any computation hereunder, the
"current per share market price" of the Preferred Stock shall be
determined in accordance with the method set forth in Section 11(d)(i)
hereof. If the Preferred Stock is not publicly traded, the "current per
share market price" of the Preferred Stock shall be conclusively deemed
to be the current per share market price of the Common Stock as
determined pursuant to Section 11(d)(i) hereof (appropriately adjusted
to reflect any stock split, stock dividend or similar transaction
occurring after the date hereof), multiplied by one hundred (100). If
neither the Common Stock nor the Preferred Stock is 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, whose
determination shall be described in a statement filed with the Rights
Agent and binding upon the holders of the Preferred Stock.
14
(e) No adjustment in the Purchase Price shall be required unless such
adjustment would require an increase or decrease of at least one percent (1%) in
the Purchase Price; provided, however, that any adjustments that by reason of
this Section 11(e) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment. All calculations under this
Section 11 shall be made to the nearest cent or to the nearest one one-millionth
(1/1,000,000) interest in a share of Preferred Stock or one ten-thousandth
(1/10,000) interest in any other share or security as the case may be.
Notwithstanding the first sentence of this Section 11(e), any adjustment
required by this Section 11 shall be made no later than the earlier of (i) three
(3) years from the date of the transaction that requires such adjustment or (ii)
the date of the expiration of the right to exercise any Rights.
(f) If as a result of an adjustment made pursuant to Section 11(a)
hereof, the holder of any Right thereafter exercised shall become entitled to
receive any shares of capital stock of the Corporation other than Preferred
Stock or interests therein, thereafter the Purchase Price and 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 Stock contained in
Sections 11(a), (b), (c), (e), (h), (i) and (m) hereof, as applicable, and the
provisions of Sections 7, 9, 10, 13 and 14 hereof with respect to the Preferred
Stock shall apply on like terms to any such other shares. The Corporation shall
provide the Rights Agent with prompt written notice of any such election to
utilize other securities, the type of securities and the exchange ratio of Right
Certificates therefor.
(g) All Rights originally issued by the Corporation 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-hundredth
(1/100) interests in a share of Preferred Stock purchasable from time to time
hereunder upon exercise of the Rights, all subject to further adjustment as
provided herein.
(h) Unless the Corporation shall have exercised its election as
provided in Section 11(i) hereof, upon each adjustment of the Purchase Price as
a result of the calculations made in Sections 11(b) and (c) hereof, 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-hundredth (1/100) interests in a share of Preferred Stock (calculated to
the nearest one one-millionth (1/1,000,000) interest in a share of Preferred
Stock) obtained by (i) multiplying (A) the number of one one-hundredth (1/100)
interests covered by a Right immediately prior to this adjustment by (B) the
Purchase Price in effect immediately prior to such adjustment of the Purchase
Price and (ii) dividing the product so obtained by the Purchase Price in effect
immediately after such adjustment of the Purchase Price.
(i) The Corporation may elect on or after the date of any adjustment of
the Purchase Price to adjust the number of Rights, in substitution for any
adjustment in the number of one one- hundredth (1/100) interests in a share of
Preferred Stock 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-hundredth (1/100) interests in a share of Preferred
Stock for which a Right was exercisable immediately prior to such adjustment.
Each Right held of record prior to such adjustment of the number of Rights shall
become that number of Rights (calculated to the nearest
15
one ten-thousandth (1/10,000)) obtained by dividing the Purchase Price in effect
immediately prior to adjustment of the Purchase Price by the Purchase Price in
effect immediately after adjustment of the Purchase Price. The Corporation shall
make a public announcement of its election to adjust the number of Rights and
shall simultaneously provide the Rights Agent with written notice of such
election to adjust, which announcement and notice shall indicate 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 (10) days later than the date of the public announcement. If Right
Certificates have been issued, upon each adjustment of the number of Rights
pursuant to this Section 11(i), the Corporation 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 Corporation, 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 along with a signature guarantee and such other and
further documentation as the Rights Agent may reasonably require, if required by
the Corporation, new Right Certificates evidencing all the Rights to which such
holders shall be entitled after such adjustment. As soon as practicable, the
Corporation shall provide the Rights Agent with written notice of the occurrence
of any distribution effected pursuant to the foregoing. Right Certificates so to
be distributed shall be issued, executed and countersigned in the manner
provided for herein and shall be registered in the names of the holders of
record of Right Certificates on the record date specified in the public
announcement.
(j) Irrespective of any adjustment or change in the Purchase Price or
the number of one one-hundredth (1/100) interests in a share of Preferred Stock
issuable upon the exercise of the Rights, the Right Certificates theretofore and
thereafter issued may continue to express the Purchase Price and the number of
one one-hundredth (1/100) interests in a share of Preferred Stock that 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 (1/100) of the then par value, if
any, of the Preferred Stock issuable upon exercise of the Rights, the
Corporation shall take any corporate action that may, in the opinion of its
counsel, be necessary in order that the Corporation may validly and legally
issue fully paid and nonassessable shares of Preferred Stock at such adjusted
Purchase Price.
(l) In any case in which this Section 11 shall require that an
adjustment in the Purchase Price be made effective as of a record date for a
specified event, the Corporation may elect to defer until the occurrence of such
event the issuing to the holder of any Right exercised after such record date of
the Preferred Stock and other capital stock or securities of the Corporation, if
any, issuable upon such exercise over and above the Preferred Stock and other
capital stock or securities of the Corporation, if any, issuable upon such
exercise on the basis of the Purchase Price in effect prior to such adjustment;
provided, however, that the Corporation 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.
The Corporation shall give the Rights Agent prompt written notice of its
election to defer the issuance of Preferred Stock.
16
(m) Anything in this Section 11 to the contrary notwithstanding, the
Corporation shall be entitled to make such reductions in the Purchase Price, in
addition to those adjustments expressly required by this Section 11, as and to
the extent that it in its sole discretion shall determine to be advisable in
order that any consolidation or subdivision of the Preferred Stock, issuance
wholly for cash of any Preferred Stock at less than the current market price,
issuance wholly for cash of Preferred Stock or securities that by their terms
are convertible into or exchangeable for Preferred Stock, dividends on Preferred
Stock payable in Preferred Stock or issuance of rights, options or warrants
referred to in Section 11(b) hereof, hereafter made by the Corporation to
holders of its Preferred Stock shall not be taxable to such stockholders.
(n) In the event that at any time after the date of this Agreement and
prior to the Distribution Date, the Corporation shall (i) declare or pay any
dividend on the Common Stock payable in Common Stock or (ii) effect a
subdivision, combination or consolidation of the Common Stock (by
reclassification or otherwise than by payment of dividends in Common Stock) into
a greater or lesser number of shares of Common Stock, then in any such case (i)
the number of one one-hundredth (1/100) interests in a share of Preferred Stock
purchasable after such event upon proper exercise of each Right shall be
determined by multiplying the number of one one-hundredth (1/100) interests in a
share of Preferred Stock so purchasable immediately prior to such event by a
fraction, the numerator of which is the number of shares of Common Stock
outstanding immediately before such event and the denominator of which is the
number of shares of Common Stock outstanding immediately after such event, and
(ii) each share of Common Stock outstanding immediately after such event shall
have issued with respect to it that number of Rights that each share of Common
Stock outstanding immediately prior to such event had issued with respect to it.
The adjustments provided for in this Section 11(n) shall be made successively
whenever such a dividend is declared or paid or such a subdivision, combination
or consolidation is effected.
SECTION 12. CERTIFICATE OF ADJUSTED PURCHASE PRICE OR NUMBER OF SHARES.
Whenever an adjustment is made as provided in Sections 11 and 13 hereof, the
Corporation shall promptly (a) prepare a certificate setting forth such
adjustment, including, but not limited to, the adjusted Purchase Price and a
brief statement of the facts accounting for such adjustment, (b) file with the
Rights Agent and with each transfer agent for the Common Stock or the Preferred
Stock a copy of such certificate and (c) mail a brief summary thereof to each
holder of a Right Certificate in accordance with Section 25 hereof. The Rights
Agent shall be fully protected in relying on any such certificate and on any
adjustment contained therein, and shall have no duty with respect to and shall
not be deemed to have knowledge of any such adjustment unless and until it shall
have received such a certificate.
SECTION 13. CONSOLIDATION, MERGER OR SALE OR TRANSFER OF ASSETS OR
EARNING POWER. In the event, directly or indirectly, at any time after a Person
has become an Acquiring Person, (a) the Corporation shall consolidate with, or
merge with and into, any other Person, (b) any Person shall consolidate with the
Corporation, or merge with and into the Corporation and the Corporation shall be
the continuing or surviving corporation of such merger and, in connection with
such merger, all or part of the Common Stock shall be changed into or exchanged
for stock or other securities of any other Person (or the Corporation) or cash
or any other property, or (c) the Corporation shall sell or otherwise transfer
(or one (1) or more of its Subsidiaries shall sell or otherwise transfer), in
one (1) or more transactions, assets or earning power aggregating fifty percent
(50%) or more of the assets
17
or earning power of the Corporation and its Subsidiaries (taken as a whole) to
any other Person other than the Corporation or one (1) or more of its
wholly-owned Subsidiaries, then, and in each such case, proper provision shall
be made so that (i) each holder of a Right (except as otherwise provided herein)
shall thereafter have the right to receive, upon the exercise thereof at a price
equal to the then current Purchase Price multiplied by the number of one
one-hundredth (1/100) interests in a share of Preferred Stock for which a Right
is then exercisable, in accordance with the terms of this Agreement, and in lieu
of Preferred Stock, such number of shares of Common Stock of such other Person
(including the Corporation as successor thereto or as the surviving corporation)
as shall equal the result obtained by (A) multiplying the then current Purchase
Price by the number of one one-hundredth (1/100) interests in a share of
Preferred Stock for which a Right is then exercisable and (B) dividing that
product by fifty percent (50%) of the then current per share market price of the
Common Stock of such other Person (determined pursuant to Section 11(d) hereof)
on the date of consummation of such consolidation, merger, sale or transfer;
(ii) the issuer of such Common Stock shall thereafter be liable for, and shall
assume, by virtue of such consolidation, merger, sale or transfer, all the
obligations and duties of the Corporation pursuant to this Agreement; (iii) the
term "Corporation" shall thereafter be deemed to refer to such issuer; and (iv)
such issuer shall take such steps (including, but not limited to, the
reservation of a sufficient number of its Common Stock in accordance with
Section 9 hereof and the making of payments in cash and/or securities equal to
the Purchase Price in accordance with Section 11(a)(iii) hereof) in connection
with such consummation as may be necessary to assure that the provisions hereof
shall thereafter be applicable, as nearly as reasonably may be, in relation to
the Common Stock thereafter deliverable upon the exercise of the Rights. The
Corporation shall not consummate any such consolidation, merger, sale or
transfer unless prior thereto the Corporation and such issuer shall have
executed and delivered to the Rights Agent a supplemental agreement so
providing. Pursuant to Section 27 hereof, the prior written consent of the
Rights Agent must be obtained in connection with any such supplemental agreement
that alters the rights or duties of the Rights Agent. The Corporation shall not
enter into any transaction of the kind referred to in this Section 13 if at the
time of such transaction there are any rights, warrants, instruments or
securities outstanding or any agreements or arrangements that, as a result of
the consummation of such transaction, would eliminate or substantially diminish
the benefits intended to be afforded by the Rights. The provisions of this
Section 13 shall similarly apply to successive mergers or consolidations or
sales or other transfers. The Rights Agent may rely, and shall be fully
authorized and protected in relying, on a certificate of the Corporation stating
that the provisions of this Section 13 have been fulfilled.
SECTION 14. FRACTIONAL RIGHTS AND FRACTIONAL SHARES.
(a) The Corporation shall not be required to issue fractions of Rights
or to distribute Right Certificates that evidence fractional Rights. In lieu of
such fractional Rights, there shall be paid to the registered holders of the
Right Certificates with regard to which such fractional Rights would otherwise
be issuable, an amount in cash equal to the same fraction of the current market
value of a whole Right. For the purposes of this Section 14(a), the current
market value of a whole Right shall be the closing price of the Rights for the
Trading Day immediately prior to the date on which such fractional Rights would
have been otherwise issuable. The closing price for any day shall be the last
sale price, regular way, or, in case no such sale takes place on such day, the
average of the closing bid and asked prices, regular way, in either case as
reported in the principal consolidated transaction reporting system with respect
to securities listed or admitted to trading on
18
the American Stock Exchange or, if the Rights are not listed or admitted to
trading on the American Stock Exchange, as reported in the principal
consolidated transaction reporting system with respect to securities listed on
the principal national securities exchange on which the Rights are listed or
admitted to trading or, if the Rights are not listed or admitted to trading on
any national securities exchange, the last quoted price or, if not so quoted,
the average of the high bid and low asked prices in the over-the-counter market,
as reported by NASDAQ or such other system then in use or, if on any such date
the Rights are not quoted by any such organization, the average of the closing
bid and asked prices as furnished by a professional market maker making a market
in the Rights selected by the Board. If on any such date no such market maker is
making a market in the Rights, the fair value of the Rights on such date as
determined in good faith by the Board shall be used.
(b) The Corporation shall not be required to issue fractional interests
in shares of Preferred Stock (other than fractional interests that are integral
multiples of one one-hundredth (1/100) of a share of Preferred Stock) upon
exercise of the Rights or to distribute certificates that evidence fractional
interests in shares of Preferred Stock (other than fractions that are integral
multiples of one one-hundredth (1/100) of a share of Preferred Stock).
Fractional interests in shares of Preferred Stock in integral multiples of one
one-hundredth (1/100) of a share of Preferred Stock may, at the election of the
Corporation, be evidenced by depositary receipts, pursuant to an appropriate
agreement between the Corporation 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 Stock represented by such depositary
receipts, and provided, further, that as soon as practicable, the Corporation
shall notify the Rights Agent of any such election pursuant to this Section
14(b). In lieu of fractional interests in shares of Preferred Stock that are not
integral multiples of one one-hundredth (1/100) of a share of Preferred Stock,
the Corporation 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 (1) share of Preferred Stock.
For the purposes of this Section 14(b), the current market value of the
Preferred Stock shall be the closing price of the Preferred Stock (as determined
pursuant to the second sentence of Section 11(d)(i) hereof) for the Trading Day
immediately prior to the date of such exercise.
(c) Upon accepting a Right, the holder of such Right expressly waives
such holder's right to receive any fractional Rights or any fractional shares
upon exercise of a Right (except as provided above). The Rights Agent shall have
no duty or obligation with respect to this Section 14 or Section 24(e) unless
and until it has received specific instructions (and sufficient cash, if
required) from the Corporation with respect to its duties and obligations under
such Sections.
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 Stock); and any registered holder of any Right Certificate (or, prior to
the Distribution Date, of the Common Stock), 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 Stock), may, in such holder's own behalf and
for such holder's own benefit, enforce, and may institute and maintain any suit,
action or proceeding against the Corporation to enforce, or otherwise act in
respect of, such holder's right to exercise the Rights evidenced by such Right
Certificate in the
19
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 Corporation and the Rights
Agent and with every other holder of a Right that:
(a) prior to the Distribution Date, the Rights will be transferable
only in connection with the transfer of the Common Stock;
(b) after the Distribution Date, the Right Certificates are
transferable only on the registry books of the Rights Agent if surrendered at
the designated office of the Rights Agent, pursuant to Section 26, duly endorsed
or accompanied by a proper instrument of transfer along with a signature
guarantee and such other and further documentation as the Rights Agent may
reasonably require; and
(c) the Corporation 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 Stock 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 Stock certificate
made by anyone other than the Corporation or the Rights Agent) for all purposes
whatsoever, and neither the Corporation nor the Rights Agent shall be affected
by any notice to the contrary.
(d) notwithstanding anything in this Agreement to the contrary, neither
the Corporation nor the Rights Agent shall have any liability to any holder of a
Right or other Person as a result of its inability to perform any of its
obligations under this Agreement by reason of any preliminary or permanent
injunction or other order, decree, judgment or ruling (whether interlocutory or
final) issued by a court of competent jurisdiction or by a governmental,
regulatory or administrative agency or commission, or any statute, rule,
regulation or executive order promulgated or enacted by any governmental
authority, prohibiting or otherwise restraining performance of such obligation.
SECTION 17. RIGHT CERTIFICATE HOLDER NOT DEEMED A STOCKHOLDER. No
holder, as such, of any Right Certificate shall be entitled to vote, receive
dividends or be deemed for any purpose the holder of the Preferred Stock or
interests therein or any other securities of the Corporation that may at any
time be issuable on the exercise of the Rights represented thereby, nor shall
anything contained herein or in any Right Certificate be construed to confer
upon the holder of any Right Certificate, as such, any of the rights of a
stockholder of the Corporation or any right to vote for the election of
directors or upon any matter submitted to stockholders at any meeting thereof,
or to give or withhold consent to any corporate action, or to receive notice of
meetings or other actions affecting stockholders (except as provided in Section
25 hereof), or to receive dividends or subscription rights, or otherwise, until
the Right or Rights evidenced by such Right Certificate shall have been
exercised in accordance with the provisions hereof.
20
SECTION 18. RIGHTS AGENT.
(a) The Corporation agrees to pay to the Rights Agent such compensation
as shall be agreed to in writing between the Corporation and the Rights Agent
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 (including reasonable attorneys' disbursements) incurred in the
preparation, delivery, acceptance, administration, execution or amendment of
this Agreement and the exercise and performance of its duties hereunder. The
Corporation also agrees to indemnify the Rights Agent for, and to hold it
harmless against, any loss, liability, damage, judgment, ruling (interlocutory
or final), fine, penalty, claim, demand, settlement, cost or expense incurred
without gross negligence, bad faith or willful misconduct (as finally determined
by a court of competent jurisdiction) on the part of the Rights Agent, for any
action taken, suffered or omitted by the Rights Agent in connection with the
preparation, delivery, acceptance, administration or amendment of this
Agreement, including, without limitation, reasonable attorneys' fees and
expenses and the costs and expenses of defending against any claim of liability
in the premises. In no event will the Rights Agent be liable for special,
punitive, indirect, incidental or consequential loss or damage of any kind
whatsoever (including but not limited to lost profits), even if the Rights Agent
has been advised of the possibility of such damages. Any liability of the Rights
Agent will be limited to the amount of fees paid by the Corporation to the
Rights Agent hereunder. The indemnity provided herein shall survive the
termination of this Agreement and the expiration of the Rights.
(b) The Rights Agent shall be authorized to rely on, shall be protected
and shall incur no liability for, or in respect of any action taken, suffered or
omitted by it in connection with, the acceptance and administration of this
Agreement in reliance upon any Right Certificate or certificate for the
Preferred Stock or Common Stock or for other securities of the Corporation,
instrument of assignment or transfer, power of attorney, endorsement, affidavit,
letter, notice, direction, consent, certificate, statement, instructions or
other paper or document believed by it to be genuine and to be signed and
executed by the proper person or persons and, where necessary, verified or
acknowledged, or otherwise upon the advice of counsel as set forth in Section 20
hereof. The Rights Agent shall not be deemed to have any duty or notice unless
and until the Corporation has provided the Rights Agent with written notice.
SECTION 19. MERGER OR CONSOLIDATION OR CHANGE OF NAME OF RIGHTS AGENT.
(a) Any Person into which the Rights Agent or any successor Rights
Agent may be merged or with which it may be consolidated, or any Person
resulting from any merger or consolidation to which the Rights Agent or any
successor Rights Agent shall be a party, or any Person succeeding to the stock
transfer, corporate trust or shareholder services business of the Rights Agent
or any successor Rights Agent, shall be the successor to the Rights Agent under
this Agreement without the execution or filing of any paper or any further act
on the part of any of the parties hereto, provided that such Person would be
eligible for appointment as a successor Rights Agent under the provisions of
Section 21 hereof. In case at the time such successor Rights Agent shall succeed
to the agency created by this Agreement and 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
21
countersigned; and in case at that time any of the Right Certificates shall not
have been countersigned, any successor Rights Agent may countersign such Right
Certificates either in the name of the predecessor Rights Agent or in the name
of the successor Rights Agent; and in all such cases such Right Certificates
shall have the full force provided in the Right Certificates and in this
Agreement.
(b) In case at any time the name of the Rights Agent shall be changed
and at such time any of the Right Certificates shall have been countersigned but
not delivered, the Rights Agent may adopt the countersignature under its prior
name and deliver Right Certificates so countersigned; and in case at that time
any of the Right Certificates shall not have been countersigned, the Rights
Agent may countersign such Right Certificates either in its prior name or in its
changed name; and in all such cases such Right Certificates shall have the full
force provided in the Right Certificates and in this Agreement.
SECTION 20. TERMS AND CONDITIONS OF RIGHTS AGENT'S APPOINTMENT. The
Rights Agent undertakes the duties and obligations expressly imposed by this
Agreement (and no implied duties or obligations) upon the following terms and
conditions, to all of which the Corporation and the holders of Right
Certificates, by their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel of its selection
(who may be legal counsel for the Corporation), and the opinion of such counsel
shall be full and complete authorization and protection to the Rights Agent, and
the Rights Agent shall incur no liability for or in respect of any action taken,
suffered or omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Agreement the
Rights Agent shall deem it necessary or desirable that any fact or matter be
proved or established by the Corporation prior to taking, suffering or omitting
to take any action hereunder, such fact or matter (unless other evidence in
respect thereof be herein specifically prescribed) may be deemed to be
conclusively proved and established by a certificate signed by any one (1) of
the Chairman of the Board, the President, any Vice President, the Treasurer or
the Secretary of the Corporation and delivered to the Rights Agent; and such
certificate shall be full authorization and protection to the Rights Agent, and
the Rights Agent shall incur no liability for or in respect of any action taken,
suffered or omitted in good faith by it under the provisions of this Agreement
in reliance upon such certificate.
(c) The Rights Agent shall be liable only for its own gross negligence,
bad faith or willful misconduct (as finally determined by a court of competent
jurisdiction).
(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 Corporation only.
(e) The Rights Agent shall not have any liability for, nor be under any
responsibility in respect of the validity of this Agreement or the execution and
delivery hereof (except the due
22
execution hereof by the Rights Agent) or in respect of the validity or execution
of any Right Certificate (except its countersignature thereof); nor shall it
have any liability for, nor be responsible for any breach by the Corporation of
any covenant or condition contained in this Agreement or in any Right
Certificate; nor shall it have any liability for, nor be responsible for any
change in the exercisability of the Rights (including the Rights becoming null
and void pursuant to Section 11(a)(ii) hereof) or any adjustment in the terms of
the Rights (including the manner, method or amount thereof) provided for in
Section 3, 11, 13, 23 or 24 hereof, or the ascertaining of the existence of
facts that would require any such change or adjustment (except with respect to
the exercise of Rights evidenced by Right Certificates after actual notice that
such change or adjustment is required); nor shall it by any act hereunder be
deemed to make any representation or warranty as to the authorization or
reservation of any Preferred Stock to be issued pursuant to this Agreement or
any Right Certificate or as to whether any Preferred Stock will, when issued, be
validly authorized and issued, fully paid and nonassessable.
(f) The Corporation 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 performance 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 and
certificates delivered pursuant to any provision hereof from the Chairman of the
Board, the Chief Executive Officer, the President, any Vice President, the
Secretary, any Assistant Secretary, the Treasurer or any Assistant Treasurer of
the Corporation, and is authorized to apply to such officers for advice or
instructions in connection with its duties, and such instructions shall be full
authorization and protection to the Rights Agent and the Rights Agent shall
incur no liability for or in respect of any action taken, suffered or omitted by
it in good faith in accordance with such instructions of any such officer. An
application by the Rights Agent for instructions may set forth in writing any
action proposed to be taken, suffered or omitted by the Rights Agent with
respect to its duties and obligations under this Agreement and the date on
and/or after which such actions shall be taken, and the Rights Agent shall not
be liable for any action taken, suffered or omitted in accordance with a
proposal included in any such application on or after the date specified therein
(which date shall not be less than one (1) Business Day after the Corporation
receives such application) without the consent of the Corporation unless prior
to taking, suffering or omitting such action, the Rights Agent has received
written instructions in response to such application specifying the actions to
be taken, suffered or omitted.
(h) The Rights Agent and any stockholder, Affiliate, director, officer
or employee of the Rights Agent may buy, sell or deal in any of the Rights or
other securities of the Corporation or become pecuniarily interested in any
transaction in which the Corporation may be interested, or contract with or lend
money to the Corporation or otherwise act as fully and freely as though it were
not Rights Agent under this Agreement. Nothing herein shall preclude the Rights
Agent from acting in any other capacity for the Corporation or for any other
Person.
(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
23
any such attorneys or agents or for any loss to the Corporation or any other
Person resulting from any such act, default, neglect or misconduct, provided
reasonable care was exercised in the selection and continued employment thereof.
(j) No provision of this Agreement shall require the Rights Agent to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of its rights if
the Rights Agent reasonably believes the repayment of such funds or adequate
indemnification against such risk or liability is not assured to it.
(k) In addition to the foregoing, 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 acceptance and administration of this
Agreement in reliance upon (i) the proper execution of the certification
concerning beneficial ownership appended to the Form of Assignment and the Form
of Election to Purchase included as part of EXHIBIT B hereto (the
"CERTIFICATION"), unless the Rights Agent shall have actual knowledge that, as
executed, the Certification is untrue or (ii) the non- execution or failure to
complete the Certification including, without limitation, any refusal to honor
any otherwise permissible assignment or election by reason of such nonexecution
or failure.
(l) The Corporation agrees to give the Rights Agent prompt written
notice of any event or ownership that comes to the Corporation's attention that
would prohibit the exercise or transfer of the Right Certificates.
SECTION 21. CHANGE OF RIGHTS AGENT. The Rights Agent or any successor
Rights Agent may resign and be discharged from its duties under this Agreement
upon thirty (30) days' notice in writing mailed to the Corporation and, at the
Corporation's expense, to each transfer agent of the Common Stock or Preferred
Stock by registered or certified mail, and to the holders of the Right
Certificates by first class mail. The Corporation may remove the Rights Agent or
any successor Rights Agent upon thirty (30) days' notice in writing, mailed to
the Rights Agent or successor Rights Agent, as the case may be, and to each
transfer agent of the Common Stock or Preferred Stock 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 Corporation shall appoint a successor to the Rights Agent. If the
Corporation shall fail to make such appointment within a period of thirty (30)
days after giving notice of such removal or after it has been notified in
writing of such resignation or incapacity by the resigning or incapacitated
Rights Agent or by the holder of a Right Certificate (who shall, with such
notice, submit its, his or her Right Certificate for inspection by the
Corporation), then the Corporation 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 Corporation or by such a court, shall be a
Person or an Affiliate thereof 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 Person is authorized to do business as a banking
institution in the State of New York), in good standing, having an office in the
State of New York, that is authorized under such laws to exercise corporate
trust or stock transfer powers or conduct a shareholder services business 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 FIFTY MILLION DOLLARS ($50,000,000.00). After appointment,
the successor
24
Rights Agent shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named as Rights Agent without
further act or deed; but the predecessor Rights Agent shall deliver and transfer
to the successor Rights Agent any property at the time held by it hereunder and
execute and deliver any further assurance, conveyance, act or deed necessary for
the purpose. Not later than the effective date of any such appointment, the
Corporation shall file notice thereof in writing with the predecessor Rights
Agent and each transfer agent of the Common Stock or Preferred Stock 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
Corporation may, at its option, issue new Right Certificates evidencing Rights
in such form as may be approved by its Board to reflect any adjustment or change
in the Purchase Price and the number or kind or class of shares or other
securities or property purchasable under the Right Certificates made in
accordance with the provisions of this Agreement.
SECTION 23. REDEMPTION.
(a) The Rights may be redeemed by action of the Board pursuant to
paragraph (b) of this Section 23 and shall not be redeemed in any other manner.
The Rights Agent shall be given written notice of any such redemption as soon as
practicable.
(b) The Board may, at its option, at any time prior to such time as any
Person becomes an Acquiring Person, redeem all but not less than all the then
outstanding Rights at a redemption price of ONE CENT ($0.01) per Right,
appropriately adjusted to reflect any stock split, stock dividend or similar
transaction occurring after the date hereof (such redemption price being
hereinafter referred to as the "REDEMPTION PRICE").
(c) Immediately upon the action of the Board ordering the redemption of
the Rights pursuant to paragraph (b) of this Section 23, and without any further
action and without any notice, the right to exercise the Rights will terminate,
and the only right thereafter of the holders of Rights shall be to receive the
Redemption Price. The Corporation shall promptly give public notice of any such
redemption; provided, however, that the failure to give, or any defect in, any
such notice shall not affect the validity of such redemption. Within ten (10)
days after such action of the Board ordering the redemption of the Rights
pursuant to Section 23(b) hereof, the Corporation shall mail a notice of
redemption to all the holders of the then outstanding Rights at their last
addresses as they appear upon the registry books of the Rights Agent or on the
registry books of the transfer agent for the Common Stock. Any notice that 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.
25
SECTION 24. EXCHANGE.
(a) The Board may, at its sole option, at any time after any Person
becomes an Acquiring Person, exchange all or part of the then outstanding and
exercisable Rights (which shall not include Rights that have become null and
void pursuant to the provisions of Section 11(a)(ii) hereof) for Common Stock at
an exchange ratio of one (1) share of Common Stock per Right, appropriately
adjusted to reflect any stock split, stock dividend or similar transaction
occurring after the date hereof (such exchange ratio being hereinafter referred
to as the "EXCHANGE RATIO"). The Rights Agent shall be given written notice as
soon as practicable of any such exchange and the Exchange Ratio pursuant to
which such exchange is effected. Notwithstanding the foregoing, the Board shall
not be empowered to effect such exchange at any time after any Person (other
than the Corporation, any Subsidiary of the Corporation, any employee benefit
plan of the Corporation or any such Subsidiary or any entity holding Common
Stock for or pursuant to the terms of any such plan), together with all
Affiliates and Associates of such Person, becomes the Beneficial Owner of fifty
percent (50%) or more of the Common Stock then outstanding.
(b) Immediately upon the action of the Board ordering the exchange of
any Rights pursuant to paragraph (a) of this Section 24 and without any further
action and without any notice, the right to exercise such Rights shall
terminate, and the only right thereafter of a holder of such Rights shall be to
receive that number of shares of Common Stock equal to the number of such Rights
held by such holder multiplied by the Exchange Ratio. The Corporation shall
promptly give public notice of any such exchange, and the Rights Agent shall be
given written 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 Corporation shall promptly 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 or, prior to the Distribution Date, on
the registry books of the transfer agent for the Common Stock. Any notice that
is mailed in the manner herein provided shall be deemed given, whether or not
the holder receives the notice. Each such notice of exchange will state the
method by which the exchange of the Common Stock for Rights will be effected
and, in the event of any partial exchange, the number of Rights that will be
exchanged. Any partial exchange shall be effected pro rata based on the number
of Rights (other than Rights that have become void pursuant to the provisions of
Section 11(a)(ii) hereof) held by each holder of Rights.
(c) In any exchange pursuant to this Section 24, the Corporation, at
its option, may substitute interests in shares of Preferred Stock (or equivalent
preferred stock, as such term is defined in Section 11(b) hereof) for Common
Stock exchangeable for Rights, at the initial rate of one one- hundredth (1/100)
interest in a share of Preferred Stock (or equivalent preferred stock) for each
share of Common Stock, as appropriately adjusted to reflect adjustments in the
voting rights of the Preferred Stock pursuant to section 3(a) of EXHIBIT A
hereto so that the fraction of a share of Preferred Stock delivered in lieu of
each share of Common Stock shall have the same voting rights as one (1) share of
Common Stock. The Rights Agent shall be given written notice of any such
substitution as soon as practicable.
(d) In the event that there shall not be sufficient Common Stock or
Preferred Stock issued but not outstanding or authorized but unissued to permit
any exchange of Rights as contemplated in accordance with this Section 24, (i)
the Corporation shall take all such action as may be necessary
26
to authorize additional Common Stock or Preferred Stock for issuance upon
exchange of the Rights or (ii) the Corporation, at is option, notwithstanding
any other provision of this Agreement, with respect to each Right, to the extent
permitted by applicable law and any agreements or instruments in effect on the
Distribution Date to which the Corporation is a party, upon exercise of the
Rights, may pay cash and/or securities equal to the Purchase Price per Right, in
lieu of issuing such additional Common Stock and requiring payment therefor. To
the extent that any legal or contractual restrictions prevent the Corporation
from paying the full amount of cash payable in accordance with the foregoing
sentence, the Corporation shall pay to holders of the Rights as to which such
payments are being made all amounts that are not then restricted on a pro rata
basis. The Corporation shall continue to make payments on a pro rata basis as
funds become available until such payments have been paid in full. As soon as
practicable, the Corporation shall provide the Rights Agent with written notice
of any election made pursuant to this Section 24(d).
(e) The Corporation shall not be required to issue fractions of shares
of Common Stock or to distribute certificates that evidence fractional shares of
Common Stock. In lieu of such fractional shares of Common Stock, the Corporation
shall pay to the registered holders of the Right Certificates with regard to
which such fractional shares of Common Stock would otherwise be issuable an
amount in cash equal to the same fraction of the current market value of a whole
share of Common Stock. For the purposes of this paragraph (e), the current
market value of a whole share of Common Stock shall be the closing price of a
share of Common Stock (as determined pursuant to the second sentence of Section
11(d)(i) hereof) for the Trading Day immediately prior to the date of exchange
pursuant to this Section 24.
SECTION 25. NOTICE OF CERTAIN EVENTS.
(a) In case the Corporation shall propose (i) to pay any dividend
payable in stock of any class to the holders of its Preferred Stock or to make
any other distribution to the holders of its Preferred Stock (other than a
regular quarterly cash dividend), (ii) to offer to the holders of its Preferred
Stock rights or warrants to subscribe for or to purchase any additional
Preferred Stock or shares of stock of any class or any other securities, rights
or options, (iii) to effect any reclassification of its Preferred Stock (other
than a reclassification involving only the subdivision of outstanding Preferred
Stock), (iv) to effect any consolidation or merger into or with, or to effect
any sale or other transfer (or to permit one (1) or more of its Subsidiaries to
effect any sale or other transfer), in one (1) or more transactions, of fifty
percent (50%) or more of the assets or earning power of the Corporation and its
Subsidiaries (taken as a whole) to, any other Person, (v) to effect the
liquidation, dissolution or winding up of the Corporation or (vi) to declare or
pay any dividend on the Common Stock payable in Common Stock or to effect a
subdivision, combination or consolidation of the Common Stock (by
reclassification or otherwise than by payment of dividends in Common Stock),
then, in each such case, the Corporation shall give to each holder of a Right
Certificate and the Rights Agent, in accordance with Section 26 hereof, a notice
of such proposed action, which shall specify the record date for the purposes of
such stock dividend, or distribution of rights or warrants, or the date on which
such reclassification, consolidation, merger, sale, transfer, liquidation,
dissolution or winding up is to take place and the date of participation therein
by the holders of the Common Stock and/or Preferred Stock, if any such date is
to be fixed, and such notice shall be so given in the case of any action covered
by clause (i) or (ii) above at least ten (10) days prior to the record date for
determining holders of the Preferred Stock for purposes of such action, and in
the
27
case of any such other action, at least ten (10) days prior to the date of the
taking of such proposed action or the date of participation therein by the
holders of the Common Stock and/or Preferred Stock, whichever shall be earlier.
(b) In case an event set forth in Section 11(a)(ii) hereof shall occur,
then the Corporation shall as soon as practicable thereafter give to each holder
of a Right Certificate and to the Rights Agent, in accordance with Section 26
hereof, a notice of the occurrence of such event, which notice shall describe
the event and the consequences of the event to holders of Rights under Section
11(a)(ii) hereof.
SECTION 26. NOTICES. Notices or demands authorized by this Agreement to
be given or made by the Rights Agent or by the holder of any Right Certificate
to or on the Corporation, 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:
XXXXXX CORPORATION
00 XXXXXXXX XXXXXX
XXXXXXX, XXX XXXX 00000-0000
ATTN: XXXXXXX X. XXXXX, XX., ESQ.
TEL: (000) 000-0000
FAX: (000) 000-0000
Subject to the provisions of Section 21 hereof, any notice or demand authorized
by this Agreement to be given or made by the Corporation 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 Corporation) as follows:
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
00 XXXX XXXXXX - 0XX XXXXX
XXX XXXX, XXX XXXX 00000
ATTN: RELATIONSHIP MANGER
with a copy to:
--------------
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
00 XXXXXXXXXX XXXX
XXXXXXXXXX XXXX, XXX XXXXXX 00000
ATTN: GENERAL COUNSEL
Notices or demands authorized by this Agreement to be given or made by the
Corporation or the Rights Agent to the holder of any Right Certificate shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed to such holder at the address of such holder as shown on the registry
books of the Corporation.
SECTION 27. SUPPLEMENTS AND AMENDMENTS. The Corporation may, at any
time prior to the time a Person becomes an Acquiring Person, by resolution of
its Board, from time to
28
time supplement or amend this Agreement without the approval of any holders of
Right Certificates in any respect, any such supplement or amendment to be
evidenced by a writing signed by the Corporation and the Rights Agent; provided,
however, that from and after such time as any Person becomes an Acquiring
Person, this Agreement may be amended by the Board in any manner which would not
adversely affect the interests of any of the holders of Right Certificates
(other than an Acquiring Person or an Affiliate or Associate thereof). Upon the
delivery of a certificate from an executive officer of the Corporation which
states that the proposed supplement or amendment is in compliance with the terms
of this Section 27, the Rights Agent shall execute such supplement or amendment;
provided, that notwithstanding anything to the contrary set forth herein, the
Rights Agent shall not be required to consent to any amendment or supplement
that adversely affects its duties, liabilities or obligations hereunder. Without
limiting the foregoing, the Corporation may, at any time prior to such time as
any Person becomes an Acquiring Person, amend this Agreement to lower the
thresholds set forth in Sections 1(a) and 3(b) hereof to not less than the
largest percentage of the outstanding Common Stock then known by the Corporation
to be beneficially owned by any Person.
SECTION 28. SUCCESSORS. All the covenants and provisions of this
Agreement by or for the benefit of the Corporation or the Rights Agent shall
bind and inure to the benefit of their respective successors and assigns
hereunder.
SECTION 29. DETERMINATIONS AND ACTIONS BY THE BOARD.
(a) The Board shall have the exclusive power and authority to
administer this Agreement and to exercise all rights and powers specifically
granted to such Board or to the Corporation, or as may be necessary or advisable
in the administration of this Agreement, including, without limitation, the
right and power to (i) interpret the provisions of this Agreement and (ii) make
all determinations deemed necessary or advisable for the administration of this
Agreement (including, without limitation, a determination to redeem or not
redeem the Rights or to amend the Agreement). All such actions, interpretations
and determinations (including, for purposes of clause (B) below, all omissions
with respect to the foregoing) that are done or made by the Board in good faith,
shall (A) be final, conclusive and binding on the Corporation, the Rights Agent,
the holders of the Rights and all other Persons and (B) not subject the Board to
any liability to the holders of the Rights. The Rights Agent shall always be
entitled to assume that the Board acted in good faith and shall be fully
protected and incur no liability in reliance thereon.
(b) In taking any action referred to in Section 29(a), the Board shall
be entitled to consider, without limitation, the financial and managerial
resources and future prospects of an Acquiring Person, the possible effects of
the action on the business of the Corporation and its Subsidiaries and on the
employees, customers, suppliers and creditors of the Corporation and its
Subsidiaries and the effects on the communities in which the Corporation's and
its Subsidiaries' facilities are located.
SECTION 30. BENEFITS OF THIS AGREEMENT. Nothing in this Agreement shall
be construed to give to any Person other than the Corporation, the Rights Agent
and the registered holders of the Right Certificates (and, prior to the
Distribution Date, the Common Stock) any legal or equitable right, remedy or
claim under this Agreement; but this Agreement shall be for the sole
29
and exclusive benefit of the Corporation, the Rights Agent and the registered
holders of the Right Certificates (and, prior to the Distribution Date, the
Common Stock).
SECTION 31. SEVERABILITY. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.
SECTION 32. GOVERNING LAW. This Agreement and each Right Certificate
issued hereunder shall be deemed to be a contract made under the laws of the
State of Delaware and for all purposes shall be governed by and construed in
accordance with the laws of Delaware applicable to contracts to be made and
performed entirely within Delaware; provided, however, that all provisions
regarding the rights, duties and obligations of the Rights Agent shall be
governed by and construed in accordance with the laws of the State of New York
applicable to contracts made and to be performed entirely within such state.
SECTION 33. 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
(1) and the same instrument.
SECTION 34. DESCRIPTIVE HEADINGS. Descriptive headings of the several
Sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
30
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and attested, all as of the day and year first above written.
XXXXXX CORPORATION
By:/s/ Xxxxxxx X. Xxxxx, Xx.
---------------------------------
Name: Xxxxxxx X. Xxxxx, Xx.
Title: Vice President and General
Counsel
ATTEST:
By:/s/ Xxxxxxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxxxxxx X. Xxxxxxxx
Title: Admin. Assistant
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
By:/s/ Xxxx Xxxxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxxx
Title: Relationship Manager
ATTEST:
By:/s/ Xxxxx X. Xxxxx
----------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
31
EXHIBIT A
CERTIFICATE OF DESIGNATIONS, PREFERENCES AND RIGHTS OF SERIES A
JUNIOR PARTICIPATING PREFERRED STOCK OF XXXXXX CORPORATION
Pursuant to Section 151 of the General Corporation Law of the State of Delaware
--------------------------
We, Xxxxxx Xxxxxx, and Xxxxxxxxx X. Xxx Xxxx, being the President and
Chief Executive Officer and the Secretary, respectively, of XXXXXX CORPORATION,
a corporation organized and existing under the General Corporation Law of the
State of Delaware (the "CORPORATION"), in accordance with the provisions of
Sections 103 and 151 thereof, DO HEREBY CERTIFY:
That, pursuant to the authority conferred upon the board of directors
of the Corporation (the "BOARD") by the Certificate of Incorporation of the
Corporation, the Board at a meeting duly called and held on July 27, 2000, at
which a quorum was present and acting throughout, duly adopted the following
resolution creating a series of sixty thousand (60,000) shares of Preferred
Stock, par value ONE DOLLAR ($1.00) per share, designated "Series A Junior
Participating Preferred Stock":
RESOLVED, that, pursuant to the authority vested in the Board
in accordance with the provisions of its Certificate of Incorporation,
a series of preferred stock of the Corporation to be designated "Series
A Junior Participating Preferred Stock," par value ONE DOLLAR ($1.00)
per share (the "PREFERRED STOCK"), be, and it hereby is, created, the
designations 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 and
restrictions thereof, to be as follows:
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
SECTION 1. DESIGNATION AND AMOUNT. The shares of such series shall be
designated as "Series A Junior Participating Preferred Stock," par value ONE
DOLLAR ($1.00) per share, and the number of shares constituting such series
shall be sixty thousand (60,000). Such number of shares may be increased or
decreased by resolution of the Board; provided, that no decrease shall reduce
the number of shares of Series A Junior Participating Preferred Stock to a
number less than the number of shares then outstanding plus the number of shares
reserved for issuance upon the exercise of outstanding options, rights or
warrants or upon the conversion of any outstanding securities issued by the
Corporation convertible into Series A Junior Participating Preferred Stock.
SECTION 2. DIVIDENDS AND DISTRIBUTIONS.
(a) Subject to the rights of the holders of any shares of any series of
preferred stock (or any similar stock) ranking prior and superior to the Series
A Junior Participating Preferred Stock with respect to dividends, the holders of
shares of Series A Junior Participating Preferred Stock, in preference to the
holders of Common Stock, par value TEN CENTS ($0.10) per share (the "COMMON
STOCK"), of the Corporation, and of any other junior stock, shall be entitled to
receive, when, as and if declared by the Board out of funds legally available
for the purpose, quarterly dividends payable in cash on the first day of March,
June, September and December in each year (each such date being referred to
herein as a "QUARTERLY DIVIDEND PAYMENT DATE"), commencing
EXHIBIT A
on the first Quarterly Dividend Payment Date after the first issuance of a share
or fraction of a share of Series A Junior Participating Preferred Stock, in an
amount per share (rounded to the nearest cent) equal to the greater of (a) ONE
DOLLAR ($1.00) or (b) subject to the provision for adjustment hereinafter set
forth, one hundred (100) times the aggregate per share amount of all cash
dividends, and one hundred (100) times the aggregate per share amount (payable
in kind) of all non-cash dividends or other distributions, other than a dividend
payable in shares of Common Stock or a subdivision of the outstanding shares of
Common Stock (by reclassification or otherwise), declared on the Common Stock
since the immediately preceding Quarterly Dividend Payment Date or, with respect
to the first Quarterly Dividend Payment Date, since the first issuance of any
share or fraction of a share of Series A Junior Participating Preferred Stock.
In the event the Corporation shall at any time declare or pay any dividend on
the Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each
such case the amount to which holders of shares of Series A Junior Participating
Preferred Stock were entitled immediately prior to such event under clause (b)
of the preceding sentence shall be adjusted by multiplying such amount by a
fraction, the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to such
event.
(b) The Corporation shall declare a dividend or distribution on the
Series A Junior Participating Preferred Stock as provided in paragraph (a) of
this Section immediately after it declares a dividend or distribution on the
Common Stock (other than a dividend payable in shares of Common Stock);
provided, that in the event no dividend or distribution shall have been declared
on the Common Stock during the period between any Quarterly Dividend Payment
Date and the next subsequent Quarterly Dividend Payment Date, a dividend of ONE
DOLLAR ($1.00) per share on the Series A Junior Participating Preferred Stock
shall nevertheless be payable on such subsequent Quarterly Dividend Payment
Date.
(c) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Junior Participating Preferred Stock from the Quarterly
Dividend Payment Date next preceding the date of issue of such shares, unless
the date of issue of such shares is prior to the record date for the first
Quarterly Dividend Payment Date, in which case dividends on such shares shall
begin to accrue from the date of issue of such shares, or unless the date of
issue is a Quarterly Dividend Payment Date or is a date after the record date
for the determination of holders of shares of Series A Junior Participating
Preferred Stock entitled to receive a quarterly dividend and before such
Quarterly Dividend Payment Date, in either of which events such dividends shall
begin to accrue and be cumulative from such Quarterly Dividend Payment Date.
Accrued but unpaid dividends shall not bear interest. Dividends paid on the
shares of Series A Junior Participating Preferred Stock in an amount less than
the total amount of such dividends at the time accrued and payable on such
shares shall be allocated pro rata on a share-by-share basis among all such
shares at the time outstanding. The Board may fix a record date for the
determination of holders of shares of Series A Junior Participating Preferred
Stock entitled to receive payment of a dividend or distribution declared
thereon, which record date shall be not more than sixty (60) days prior to the
date fixed for the payment thereof.
2
EXHIBIT A
SECTION 3. VOTING RIGHTS. The holders of shares of Series A Junior
Participating Preferred Stock shall have the following voting rights:
(a) Subject to the provision for adjustment hereinafter set forth, each
share of Series A Junior Participating Preferred Stock shall entitle the holder
thereof to one hundred (100) votes on all matters submitted to a vote of the
stockholders of the Corporation. In the event the Corporation shall at any time
declare or pay any dividend on the Common Stock payable in shares of Common
Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the number of votes per share
to which holders of shares of Series A Junior Participating Preferred Stock were
entitled immediately prior to such event shall be adjusted by multiplying such
number by a fraction, the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding immediately prior to
such event.
(b) Except as otherwise provided herein, in any other resolution
creating a series of preferred stock or any similar stock, in any amendment to
the Certificate of Incorporation of the Corporation or bylaw, the holders of
shares of Series A Junior Participating Preferred Stock and the holders of
shares of Common Stock and any other capital stock of the Corporation having
general voting rights shall vote together as one class on all matters submitted
to a vote of stockholders of the Corporation.
(c) Except as set forth herein, or as otherwise provided by law,
holders of Series A Junior Participating Preferred Stock shall have no special
voting rights and their consent shall not be required (except to the extent they
are entitled to vote with holders of Common Stock as set forth herein) for
taking any corporate action.
SECTION 4. CERTAIN RESTRICTIONS.
(a) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Junior Participating Preferred Stock as provided in
Section 2 are in arrears, thereafter and until all accrued and unpaid dividends
and distributions, whether or not declared, on shares of Series A Junior
Participating Preferred Stock outstanding shall have been paid in full, the
Corporation shall not:
(i) declare or pay dividends, or make any other distributions,
on any shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Junior
Participating Preferred Stock;
(ii) declare or pay dividends, or make any other
distributions, on any shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the
Series A Junior Participating Preferred Stock, except dividends paid
ratably on the Series A Junior Participating Preferred Stock and all
such parity stock on which dividends are payable or in arrears in
proportion to the total amounts to which the holders of all such shares
are then entitled;
3
EXHIBIT A
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series
A Junior Participating 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 Junior Participating
Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for consideration
any shares of Series A Junior Participating Preferred Stock, or any
shares of stock ranking on a parity with the Series A Junior
Participating Preferred Stock, except in accordance with a purchase
offer made in writing or by publication (as determined by the Board) to
all holders of such shares upon such terms as the Board, after
consideration of the respective annual dividend rates and other
relative rights and preferences of the respective series and classes,
shall determine in good faith will result in fair and equitable
treatment among the respective series or classes.
(b) The Corporation shall not permit any subsidiary of the Corporation
to purchase or otherwise acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under paragraph (a) of this Section 4,
purchase or otherwise acquire such shares at such time and in such manner.
SECTION 5. REACQUIRED SHARES. Any shares of Series A Junior
Participating Preferred Stock purchased or otherwise acquired by the Corporation
in any manner whatsoever shall be retired and canceled promptly after the
acquisition thereof. All such shares shall upon their cancellation become
authorized but unissued shares of preferred stock and may be reissued as part of
a new series of preferred stock subject to the conditions and restrictions on
issuance set forth herein, in a resolution of the Board, in the Certificate of
Incorporation of the Corporation, or in any other Certificate of Amendment
creating a series of preferred stock or any similar stock or as otherwise
required by law.
SECTION 6. LIQUIDATION, DISSOLUTION OR WINDING UP. Upon any
liquidation, dissolution or winding up of the Corporation, no distribution shall
be made (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 Junior
Participating Preferred Stock unless, prior thereto, the holders of shares of
Series A Junior Participating Preferred Stock shall have received the greater of
(i) ONE HUNDRED DOLLARS ($100.00) per 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 one hundred (100) times the
aggregate amount to be distributed per share to holders of shares of Common
Stock, or (b) to the holders of shares of stock ranking on a parity (either as
to dividends or upon liquidation, dissolution or winding up) with the Series A
Junior Participating Preferred Stock, except distributions made ratably on the
Series A Junior Participating Preferred Stock and all such parity stock in
proportion to the total amounts to which the holders of all such shares are
entitled upon such liquidation, dissolution or winding up. In the event the
Corporation shall at any time declare or pay any dividend on the Common Stock
payable in shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then in each such case the
aggregate amount to which holders of shares
4
EXHIBIT A
of Series A Junior Participating Preferred Stock were entitled immediately prior
to such event under the proviso in clause (a) of the preceding sentence shall be
adjusted by multiplying such amount by a fraction, the numerator of which is the
number of shares of Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
SECTION 7. CONSOLIDATION, MERGER, ETC. In case the Corporation shall
enter into any consolidation, merger, combination or other transaction in which
the shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case each share of
Series A Junior Participating Preferred Stock shall at the same time be
similarly exchanged or changed into an amount per share, subject to the
provision for adjustment hereinafter set forth, equal to one hundred (100) times
the aggregate amount of stock, securities, cash and/or any other property
(payable in kind), as the case may be, into which or for which each share of
Common Stock is changed or exchanged. In the event the Corporation shall at any
time declare or pay any dividend on the Common Stock payable in shares of Common
Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the amount set forth in the
preceding sentence with respect to the exchange or change of shares of Series A
Junior Participating Preferred Stock shall be adjusted by multiplying such
amount by a fraction, the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding immediately prior to
such event.
SECTION 8. NO REDEMPTION. The shares of Series A Junior Participating
Preferred Stock shall not be redeemable, except as otherwise provided herein.
SECTION 9. RANK. The Series A Junior Participating Preferred Stock
shall rank, with respect to the payment of dividends and the distribution of
assets, junior to all other series of the Corporation's preferred stock.
SECTION 10. AMENDMENT. At any time that any shares of Series A
Preferred Stock are outstanding, the Certificate of Incorporation of the
Corporation shall not be amended in any manner, nor shall the Board take any
action, which would materially alter or change the powers, preferences or
special rights of the Series A Junior Participating Preferred Stock so as to
affect them adversely without the affirmative vote of the holders of at least
three-fourths (3/4) of the outstanding shares of Series A Junior Participating
Preferred Stock, voting together as a single class.
SECTION 11. FRACTIONAL SHARES. Series A Junior Participating Preferred
Stock may be issued in fractions of a share, which shall entitle the holder, in
proportion to such holder's fractional shares, to exercise voting rights,
receive dividends, participate in distributions and to have the benefit of all
other rights of holders of Series A Junior Participating Preferred Stock.
5
EXHIBIT A
IN WITNESS WHEREOF, Xxxxxx Corporation has caused this certificate to
be executed by its President and Chief Executive Officer and by its Secretary
this 29th day of August, 2000.
XXXXXX CORPORATION
By: /s/ Xxxxxx Xxxxxx
----------------------------------------------
Name: Xxxxxx Xxxxxx
Title: President and Chief Executive Officer
By: /s/ Xxxxxxxxx X. Xxx Xxxx
----------------------------------------------
Name: Xxxxxxxxx X. Xxx Xxxx
Title: Secretary
6
EXHIBIT B
FORM OF RIGHT CERTIFICATE
CERTIFICATE NO. R- _____ RIGHTS
NOT EXERCISABLE AFTER SEPTEMBER 11, 2010, OR,
IF EARLIER, IF REDEMPTION OR EXCHANGE OCCURS.
THE RIGHTS ARE SUBJECT TO REDEMPTION AT ONE
CENT ($0.01) PER RIGHT AND TO EXCHANGE ON THE
TERMS SET FORTH IN THE RIGHTS AGREEMENT. ANY
RIGHTS BENEFICIALLY OWNED BY OR TRANSFERRED TO
AN ACQUIRING PERSON OR AN AFFILIATE OR
ASSOCIATE THEREOF OR ANY SUBSEQUENT HOLDER OF
SUCH RIGHTS MAY BECOME NULL AND VOID AND WILL
NO LONGER BE TRANSFERABLE.
RIGHT CERTIFICATE
XXXXXX CORPORATION
This certifies that ___________________________, or registered assigns,
is the registered owner of the number of preferred stock purchase rights
("Rights") set forth above, each of which entitles the owner thereof, subject to
the terms, provisions and conditions of the Rights Agreement, dated as of July
27, 2000, as the same may be amended from time to time (the "RIGHTS AGREEMENT"),
by and between Xxxxxx Corporation, a Delaware corporation (the "CORPORATION"),
and ChaseMellon Shareholder Services, L.L.C., a New Jersey limited liability
company (the "RIGHTS AGENT"), to purchase from the Corporation at any time after
the Distribution Date (as such term is defined in the Rights Agreement) and
prior to 5:00 p.m., Eastern Standard Time, on September 11, 2010 at the
designated office of the Rights Agent, or at the office of its successor as
Rights Agent, one one-hundredth (1/100) interest in a fully paid non-assessable
share of Series A Junior Participating Preferred Stock, par value ONE DOLLAR
($1.00) per share (the "PREFERRED STOCK"), of the Corporation, at a purchase
price of FORTY-FIVE DOLLARS ($45.00) per one one-hundredth (1/100) interest in a
share of Preferred Stock (the "PURCHASE PRICE"), upon presentation and surrender
of this Right Certificate with the Form of Election to Purchase duly executed,
along with a signature guarantee and such other and further documentation as the
Rights Agent may reasonably require. The number of Rights evidenced by this
Right Certificate (and the number of one one- hundredth (1/100) interests in
shares of Preferred Stock that may be purchased upon exercise hereof) set forth
above, and the Purchase Price set forth above, are the number and Purchase Price
as of September 11, 2000 based on the Preferred Stock as constituted at such
date. As provided in the Rights Agreement, the Purchase Price and the number of
one one-hundredth (1/100) interests in shares of Preferred Stock that 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,
EXHIBIT B
the Corporation and the holders of the Right Certificates. Copies of the Rights
Agreement are on file at the principal executive offices of the Corporation and
the above-mentioned offices of the Rights Agent.
This Right Certificate, with or without other Right Certificates, upon
surrender at the designated office of the Rights Agent, along with a signature
guarantee and such other and further documentation as the Rights Agent may
reasonably require, may be exchanged for another Right Certificate or Right
Certificates of like tenor and date evidencing Rights entitling the holder to
purchase a like aggregate number of interests in Preferred Stock as the Rights
evidenced by the Right Certificate or Right Certificates surrendered shall have
entitled such holder to purchase. If this Right Certificate shall be exercised
in part, the holder shall be entitled to receive upon surrender hereof another
Right Certificate or Right Certificates for the number of whole Rights not
exercised.
Subject to the provisions of the Rights Agreement, the Rights evidenced
by this Certificate (i) may be, and under certain circumstances are required to
be, redeemed by the Corporation at a redemption price of ONE CENT ($0.01) per
Right or (ii) may be exchanged in whole or in part for Preferred Stock or shares
of the Corporation's Common Stock, par value TEN CENTS ($0.10) per share.
No fractional interests in shares of Preferred Stock will be issued
upon the exercise of any Right or Rights evidenced hereby (other than fractional
interests that are integral multiples of one one-hundredth of a share of
Preferred Stock, which may, at the election of the Corporation, be evidenced by
depositary receipts), but in lieu thereof a cash payment will be made, as
provided in the Rights Agreement.
No holder of this Right Certificate shall be entitled to vote or
receive dividends or be deemed for any purpose the holder of the Preferred Stock
or of any other securities of the Corporation that 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 Corporation 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.
2
EXHIBIT B
IN WITNESS WHEREOF, the proper officers of the Corporation have duly
executed this Right Certificate as of ____________________.
XXXXXX CORPORATION
By:_______________________________
Name:
Title:
ATTEST:
By:_________________________________
Name:
Title:
COUNTERSIGNED:
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
By:_________________________________
Name:
Title
3
EXHIBIT B
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 Xxxxxx
Corporation with full power of substitution.
Dated: ____________________
------------------------------
Name:
Signature Guarantee:
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 City of New York.
--------------------------------------------------------------------------------
The undersigned hereby certifies that the Rights evidenced by this
Right Certificate are not beneficially owned by an Acquiring Person or an
Affiliate or Associate thereof (as defined in the Rights Agreement).
-----------------------------
Name:
--------------------------------------------------------------------------------
4
EXHIBIT B
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: XXXXXX CORPORATION
The undersigned hereby irrevocably elects to exercise _________________
Rights represented by this Right Certificate to purchase the interests in shares
of Preferred Stock issuable upon the exercise of such Rights and requests that
certificates for such interests in shares of Preferred Stock be issued in the
name of:
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(PLEASE PRINT NAME AND ADDRESS)
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(PLEASE INSERT SOCIAL SECURITY OR OTHER TAXPAYER IDENTIFICATION 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:
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(PLEASE PRINT NAME AND ADDRESS)
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(PLEASE INSERT SOCIAL SECURITY OR OTHER TAXPAYER IDENTIFICATION NUMBER)
Dated: _________________
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Name:
Signature Guarantee:
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 City of New York.
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EXHIBIT B
FORM OF REVERSE SIDE OF RIGHT CERTIFICATE -- CONTINUED
The undersigned hereby certifies that the Rights evidenced by this
Right Certificate are not beneficially owned by an Acquiring Person or an
Affiliate or Associate thereof (as defined in the Rights Agreement).
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Name:
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NOTICE
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The signature on the foregoing Forms of Assignment and Election must
conform to the name as written upon the face of this Right Certificate in every
particular, without alteration or enlargement or any change whatsoever.
In the event the certification set forth above in the Form of
Assignment or the Form of Election to Purchase, as the case may be, is not
completed, the Corporation and the Rights Agent will deem the beneficial owner
of the Rights evidenced by this Right Certificate to be an Acquiring Person or
an Affiliate or Associate thereof (as defined in the Rights Agreement), and such
Assignment or Election to Purchase will not be honored.
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EXHIBIT C
SUMMARY OF RIGHTS TO PURCHASE
PREFERRED STOCK OR COMMON STOCK
ANY RIGHTS BENEFICIALLY OWNED BY OR TRANSFERRED TO AN ACQUIRING PERSON OR AN
AFFILIATE OR ASSOCIATE THEREOF OR ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY
BECOME NULL AND VOID AND WILL NO LONGER BE TRANSFERABLE.
1. IN GENERAL. On July 27, 2000, the board of directors of Xxxxxx
Corporation (the "CORPORATION") (the "BOARD") declared a dividend of one
preferred stock purchase right (the "RIGHT") for each outstanding share of
common stock, par value TEN CENTS ($0.10) per share (the "COMMON STOCK"), of the
Corporation. The dividend is payable on September 11, 2000 (the "RECORD DATE")
to the stockholders of record on that date. Each Right entitles the registered
holder to purchase from the Corporation one one-hundredth (1/100) interest in a
share of Series A Junior Participating Preferred Stock, par value ONE DOLLAR
($1.00) per share (the "PREFERRED STOCK"), of the Corporation, at a price of
FORTY-FIVE DOLLARS ($45.00) per one one-hundredth (1/100) interest in a share of
Preferred Stock (the "PURCHASE PRICE"), subject to adjustment. The description
and terms of the Rights are set forth in a Rights Agreement, as the same may be
amended from time to time (the "RIGHTS AGREEMENT") dated as of July 27, 2000
between the Corporation and ChaseMellon Shareholder Services, L.L.C., as Rights
Agent (the "RIGHTS AGENT").
2. DISTRIBUTION DATE. Until the date on which certain events take place
(the "DISTRIBUTION DATE"), the Rights will be evidenced by, with respect to any
Common Stock certificate outstanding on the Record Date, such Common Stock
certificate with a copy of this Summary of Rights attached thereto. The term
"DISTRIBUTION DATE" means the earlier of (a) the twentieth (20th) "BUSINESS DAY"
(any day other than a Saturday, a 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) following a public announcement that an individual, firm, corporation,
partnership, limited liability company, joint venture, trust, association,
unincorporated organization or other entity or any successor (by merger or
otherwise) of such entity ("PERSON") or group of affiliated or associated
Persons has acquired beneficial ownership of fifteen percent (15%) or more of
the outstanding Common Stock (collectively, an "ACQUIRING PERSON") or (b) the
twentieth (20th) Business Day (or such later date as may be determined by the
Board) following the commencement of, or announcement of an intention to make, a
tender offer or exchange offer, the consummation of which would result in the
beneficial ownership by a Person or group of affiliated or associated Persons of
fifteen percent (15%) or more of such outstanding Common Stock.
3. TRANSFER OF RIGHTS AND CERTIFICATES. The Rights Agreement provides
that, until the Distribution Date, the Rights will be transferred with and only
with the Common Stock. Until the Distribution Date (or earlier redemption or
expiration of the Rights), new Common Stock certificates issued after the Record
Date upon transfer or new issuance of Common Stock will contain a notation
incorporating the Rights Agreement by reference. Until the Distribution Date (or
earlier redemption or expiration of the Rights), the surrender for transfer of
any certificates for Common Stock outstanding as of the Record Date, even
without such notation or a copy of this Summary of Rights being attached
thereto, will also constitute the transfer of the Rights associated with the
Common Stock represented by such certificate. As soon as practicable following
the Distribution Date, separate certificates evidencing the Rights (the "RIGHT
CERTIFICATES") will be mailed to holders of
EXHIBIT C
record of the Common Stock as of the close of business on the Distribution Date,
and such separate Right Certificates alone will evidence the Rights.
4. EXERCISE PERIOD. The Rights are not exercisable until the
Distribution Date. The Rights will expire on the Final Expiration Date, unless
the Final Expiration Date is extended, or the Rights are earlier redeemed by the
Corporation. The term "FINAL EXPIRATION DATE" is defined in the Rights Agreement
and generally means September 11, 2010.
5. ADJUSTMENTS.
(a) The Purchase Price payable, and the number of interests in shares
of Preferred Stock or other securities or property issuable, upon exercise of
the Rights are subject to adjustment from time to time to prevent dilution (i)
in the event of a stock dividend on, or a subdivision, combination or
reclassification of, the Preferred Stock, (ii) upon the grant to holders of the
Preferred Stock of certain rights or warrants to subscribe for or purchase
Preferred Stock at a price, or securities convertible into Preferred Stock with
a conversion price, less than the then current market price of the Preferred
Stock or (iii) upon the distribution to holders of the Preferred Stock of
evidences of indebtedness or assets (excluding regular periodic cash dividends
paid out of earnings or retained earnings or dividends payable in Preferred
Stock) or of subscription rights or warrants (other than those referred to
above).
(b) The number of outstanding Rights and the number of one
one-hundredth (1/100) interests in shares of Preferred Stock issuable upon
exercise of each Right are also subject to adjustment in the event of a stock
split of the Common Stock or a stock dividend on the Common Stock payable in
Common Stock or subdivisions, consolidations or combinations of the Common Stock
occurring, in any such case, prior to the Distribution Date.
(c) With certain exceptions, no adjustment in the Purchase Price will
be required until cumulative adjustments require an adjustment of at least one
percent (1%) in such Purchase Price. No fractional shares of Preferred Stock
will be issued (other than fractions which are integral multiples of one
one-hundredth (1/100) of a share of Preferred Stock, which may, at the election
of the Corporation, be evidenced by depositary receipts) and in lieu thereof, an
adjustment in cash will be made based on the market price of the Preferred Stock
on the last trading day prior to the date of exercise.
6. PREFERRED STOCK.
(a) Interests in shares of Preferred Stock purchasable upon exercise of
the Rights will not be redeemable. Each share of Preferred Stock will be
entitled to a minimum preferential quarterly dividend payment of ONE DOLLAR
($1.00) per share but will be entitled to an aggregate dividend of one hundred
(100) times the dividend declared per Common Stock. In the event of liquidation,
the holders of the interests in shares of Preferred Stock will be entitled to a
minimum preferential liquidation payment of ONE HUNDRED DOLLARS ($100.00) per
share but will be entitled to an aggregate payment of one hundred (100) times
the payment made per Common Stock. Each share of Preferred Stock will have one
hundred (100) votes, voting together with the Common Stock. Finally, in the
event of any merger, consolidation or other transaction in which Common Stock is
exchanged, each share of Preferred Stock will be entitled to receive one hundred
(100) times the
2
EXHIBIT C
amount received per share of Common Stock. These rights are protected by
customary anti-dilution provisions.
(b) Because of the nature of the Preferred Stock's dividend,
liquidation and voting rights, the value of the one one-hundredth (1/100)
interest in a share of Preferred Stock purchasable upon exercise of each Right
should approximate the value of one (1) share of Common Stock.
7. EXERCISE OF RIGHTS FOR COMMON STOCK. In the event that any Person
becomes an Acquiring Person, proper provision shall be made so that each holder
of a Right, other than Rights beneficially owned by the Acquiring Person (which
will thereafter be null and void), will thereafter have the right to receive
upon exercise that number of shares of Common Stock having a market value of two
(2) times the purchase price of the Right. In the event that the Corporation is
acquired in a merger or other business combination transaction or fifty percent
(50%) or more of its consolidated assets or earning power is sold, proper
provision will be made so that each holder of a Right will thereafter have the
right to receive, upon the exercise thereof at the then current purchase price
of the Right, that number of shares of common stock of the acquiring corporation
that at the time of such transaction will have a market value of two (2) times
the purchase price of the Right. In the event that there is not sufficient
authorized but unissued shares of Common Stock or treasury shares to permit the
exercise in full of the Rights, the Corporation is obligated to take all action
as may be necessary to authorize additional Common Stock for issuance upon
exercise of the Rights, or the Corporation may pay cash and/or other securities
equal to the Purchase Price per Right.
8. OPTIONAL EXCHANGE OF RIGHTS. At any time after a Person or group of
affiliated or associated Persons becomes an Acquiring Person and prior to the
acquisition by such Person or group of Persons of fifty percent (50%) or more of
the outstanding Common Stock, the Board may exchange the Rights (other than
Rights owned by such Person or group which have become null and void), in whole
or in part, at an exchange ratio (subject to adjustment) of one (1) share of
Common Stock per Right. At its option, the Board may substitute interests in
shares of Preferred Stock (or shares of a class or series of the Corporation's
preferred stock having equivalent rights, preferences and privileges) for Common
Stock exchangeable for Rights at an initial rate (subject to adjustment) of one
one-hundredth (1/100) interest in a share of Preferred Stock (or equivalent
preferred stock) for each share of Common Stock.
9. REDEMPTION OF RIGHTS. At any time prior to the acquisition by a
Person or group of affiliated or associated Persons of beneficial ownership of
fifteen percent (15%) or more of the outstanding Common Stock, the Board may
redeem the Rights in whole, but not in part, at a price of ONE CENT ($0.01) per
Right (the "REDEMPTION PRICE"). Immediately upon any redemption of the Rights,
the right to exercise the Rights will terminate, and the only right of the
holders of Rights will be to receive the Redemption Price.
10. AMENDMENTS. The terms of the Rights may be amended by the Board
without the consent of the holders of the Rights, including an amendment to
lower the threshold for exercisability of the rights to not less than the
largest percentage of the outstanding Common Stock then known to the Corporation
to be beneficially owned by any Person or group of affiliated or associated
Persons, provided that from and after such time as any Person becomes an
Acquiring Person, the terms of the Rights may be amended only by resolution of
the Board.
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EXHIBIT C
11. RIGHTS PRIOR TO EXERCISE. Until a Right is exercised, the holder
thereof, as such, will have no rights as a stockholder of the Corporation,
including, without limitation, the right to vote or to receive dividends.
12. DOCUMENTS AND EFFECT OF THIS SUMMARY. A copy of the Rights
Agreement has been filed with the Securities and Exchange Commission as an
exhibit to a Registration Statement on Form 8-A dated September 15, 2000. A
copy of the Rights Agreement is available free of charge from the Corporation.
This summary description of the Rights does not purport to be complete and is
qualified in its entirety by reference to the Rights Agreement, which is hereby
incorporated herein by reference.
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