EXHIBIT 1
CONFORMED COPY
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AMENDED AND RESTATED
RIGHTS AGREEMENT
Dated as of September 1, 2003
Between
THE BRINK'S COMPANY
And
EQUISERVE TRUST COMPANY, N.A.
As Rights Agent
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Table of Contents
Page
Section 1. Certain Definitions...........................................2
Section 2. Appointment of Rights Agent...................................8
Section 3. Issue of Right Certificates...................................9
Section 4. Forms of Right Certificates..................................10
Section 5. Execution, Countersignature and Registration.................10
Section 6. Transfer, Split-up, Combination and Exchange of Right
Certificates; Mutilated, Destroyed, Lost or Stolen
Right Certificates......................................11
Section 7. Exercise of Rights; Expiration Date of Rights; Restriction
on Transfer of Rights...................................12
Section 8. Cancelation and Destruction of Right Certificates............13
Section 9. Reservation and Availability of Preferred Shares.............13
Section 10. Preferred Shares Record Date.................................15
Section 11. Adjustment of Number and Kind of Shares and the Purchase
Price...................................................15
Section 12. Certificate of Adjustment....................................21
Section 13. Consolidation, Merger, Share Exchange or Sale or
Transfer of Major Part of Assets........................21
Section 14. Additional Covenants.........................................24
Section 15. Fractional Rights and Fractional Shares......................24
Section 16. Rights of Action.............................................25
Section 17. Transfer and Ownership of Rights and Right Certificates......26
Section 18. Right Certificate Holder Not Deemed a Shareholder............26
Section 19. Concerning the Rights Agent..................................26
Section 20. Merger or Consolidation or Change of Rights Agent............27
Section 21. Duties of Rights Agent.......................................28
Section 22. Change of Rights Agent.......................................29
Section 23. Issuance of New Right Certificates...........................30
Section 24. Redemption and Termination...................................30
Section 25. Notice of Certain Events.....................................31
Section 26. Notices......................................................32
Section 27. Supplements and Amendments...................................32
Section 28. Successors...................................................33
Section 29. Benefits of this Rights Agreement; Determinations and
Actions by the Board of Directors, etc..................33
Section 30. Severability.................................................34
Section 31. Governing Law................................................34
Section 32. Counterparts.................................................34
Section 33. Descriptive Headings.........................................34
Exhibits
Exhibit A Form of Right Certificate
AMENDED AND RESTATED RIGHTS AGREEMENT
dated as of September 1, 2003, between THE BRINK'S
COMPANY, a Virginia corporation (formerly The
Pittston Company and defined herein as the
"Company"), and EQUISERVE TRUST COMPANY, N.A., as
Rights Agent (the "Rights Agent").
On September 11, 1987 (the "Rights Dividend Declaration Date"), the
Board of Directors of the Company adopted a shareholder rights plan governed
by the terms of a rights agreement (as amended as of December 12, 1988, the
"Original Agreement") and distributed one right (a "Common Right") for each
share of common stock, par value $1.00 per share, of the Company (the "Common
Stock") outstanding at the close of business on September 25, 1987 (the
"Record Date"), and authorized the issuance of one Common Right for each share
of Common Stock issued between the Record Date and the date hereof.
On May 7, 1993, the Board of Directors of the Company adopted
amendments to the Original Agreement (as amended, the "Amended Agreement")
and, contingent upon and simultaneously with the distribution of Pittston
Minerals Group Common Stock ("Minerals Stock") to holders of the Common Stock
on the close of business on July 26, 1993, pursuant to such amendments (i)
authorized and declared a dividend distribution of one Pittston Minerals Group
Right for each share of Minerals Stock and (ii) redesignated each Common Right
as a Pittston Services Group Right (a "Services Right").
On September 15, 1995, the Board of Directors of the Company adopted
amendments to the Amended Agreement and contingent upon and simultaneously
with (i) the redesignation of Pittston Services Group Common Stock, par value
$1.00 per share, of the Company ("Services Stock") as Brink's Stock (as
defined herein) and (ii) the distribution of Pittston BAX Group Common Stock
("BAX Stock") to holders of Services Stock on the close of business on January
19, 1996, redesignated each Services Right as a Pittston Brink's Group Right
(a "Right") and authorized and declared a distribution of one Pittston
Burlington Group Right for each share of BAX Stock.
On December 6, 1996, the Board of Directors of the Company adopted
an amendment to the Amended Agreement in order to modify the requirements by
which a successor Rights Agent may be named. On May 30, 1997, the Company
appointed BankBoston, N.A. as successor Rights Agent under the Amended
Agreement.
On July 11, 1997, the Board of Directors of the Company adopted an
amendment to the Amended Agreement to (i) extend the expiration of the Amended
Agreement for another ten years to September 25, 2007, (ii) lower the
threshold under which the Rights become exercisable to an acquisition by an
unapproved third party of
2
more than 15% of the total voting rights of the Company's outstanding common
stock and (iii) provide for a cashless exercise of the Rights.
On December 4, 1999, the Board of Directors of the Company adopted
amendments to the Amended Agreement contingent upon and simultaneously with
the exchange of Brink's Stock for each outstanding share of BAX Stock and
Minerals Stock effective on January 14, 2000 (the "Effective Date").
On November 2, 2001, the Board of Directors of the Company adopted
an amendment to the Amended and Restated Rights Agreement dated January 14,
2000 to modify the requirements by which a successor Rights Agent may be named
and to appoint EquiServe Trust Company, N.A. as successor Rights Agent.
On May 2, 2003, the Board of Directors of the Company adopted
further amendments to the Amended and Restated Rights Agreement dated January
14, 2000 (as further amended, the "Rights Agreement") to remove certain
provisions relating to "Disinterested Directors."
Each Right initially represents the right to purchase one
one-thousandth (1/1000th) of a Series A Preferred Share, each such Preferred
Share having the powers, rights and preferences set forth in the Company's
Restated Articles of Incorporation, upon the terms and subject to the
conditions hereinafter set forth.
Accordingly, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
Section 1. Certain Definitions. For purposes of this Rights
Agreement, the following terms have the meanings indicated:
(a) "Acquiring Person" shall mean any Person who or which, alone or
together with all Affiliates and Associates of such Person, shall be the
Beneficial Owner of more than 15% of the total Voting Rights of all the Common
Shares then outstanding (provided however that such person shall be deemed to
be an Acquiring Person only on the Close of Business on the tenth calendar day
(or sooner if so determined by the Board) following such time as the Board
learns that such Person's Beneficial Ownership exceeds 15% of the total Voting
Rights of all the Common Shares then outstanding) but shall not include (a)
the Company, any Subsidiary of the Company, any employee benefit plan of the
Company or of any of its Subsidiaries, or any Person holding Common Shares for
or pursuant to the terms of any such employee benefit plan or (b) any such
Person who has become and is such a Beneficial Owner solely because (i) of a
change in the aggregate number of Common Shares outstanding since the last
date on which such Person acquired Beneficial Ownership of any Common Shares
or (ii) it acquired such Beneficial Ownership in the good faith belief that
such acquisition would not cause such Beneficial Ownership to exceed 15% of
the total Voting Rights of all the Common Shares then outstanding.
Notwithstanding clause (b)(ii) of the prior sentence, if any Person that is
excluded from the definition of an Acquiring Person due to such clause (b)(ii)
does not reduce its percentage of Beneficial Ownership of Common Shares to 15%
or less of the
total Voting Rights of all the Common Shares then outstanding
by the Close of Business on the fifth Business Day after notice from the
Company (the date of notice being the first day) that such Person's Beneficial
Ownership of Common Shares so exceeds 15% of such total Voting Rights, such
Person shall, at the end of such five Business Day period, become an Acquiring
Person (and such clause (b)(ii) shall no longer apply to such Person). For
purposes of this definition, the determination whether any Person acted in
"good faith" shall be conclusively determined by the Board of Directors of the
Company."
(b) "Affiliate" and "Associate", when used with reference to any
Person, shall have the respective meanings ascribed to such terms in Rule
12b-2 of the General Rules and Regulations under the Securities Exchange Act
of 1934, as in effect on the date of this Rights Agreement.
(c) "Affiliate Merger" shall have the meaning set forth in clause
(i) of Section 11(e) of this Rights Agreement.
(d) A Person shall be deemed the "Beneficial Owner" of, and shall be
deemed to "beneficially own", any securities:
(i) which such Person or any of such Person's Affiliates or
Associates beneficially owns, directly or indirectly;
(ii) which such Person or any of such Person's Affiliates or
Associates has (A) the right to acquire (whether such right is
exercisable immediately or only after the passage of time) pursuant
to any agreement, arrangement or understanding (written or oral), or
upon the exercise of conversion rights, exchange rights, rights
(other than Rights issuable under this Rights Agreement), warrants
or options, or otherwise; provided, however, that a Person shall not
be deemed the Beneficial Owner of, or to beneficially own,
securities tendered pursuant to a tender or exchange offer made by
or on behalf of such Person or any of such Person's Affiliates or
Associates until such tendered securities are accepted for purchase
or exchange thereunder; or (B) the right to vote pursuant to any
agreement, arrangement or understanding (written or oral); provided,
however, that a Person shall not be deemed the Beneficial Owner of,
or to beneficially own, any security if the agreement, arrangement
or understanding (written or oral) to vote such security (1) arises
solely from a revocable proxy given to such Person in response to a
public proxy or consent solicitation made pursuant to, and in
accordance with, the applicable rules and regulations under the
Exchange Act and (2) is not also then reportable on Schedule 13D
under the Exchange Act (or any comparable or successor report); or
(iii) which are beneficially owned, directly or indirectly, by
any other Person with which such Person or any of such Person's
Affiliates or Associates has any agreement, arrangement or
understanding (written or oral), for the purpose of acquiring,
holding, voting (except pursuant to a revocable proxy as described
in clause (B) of subparagraph (ii) of this paragraph (d)) or
disposing of any securities of the Company; provided, however, that,
notwithstanding any provision of this Section 1(e), any Person
engaged in business as an underwriter of securities who acquires any
securities of the Company through such Person's participation in
good faith in a firm commitment underwriting registered under the
Securities Act shall not be deemed the "Beneficial Owner" of, or to
"beneficially own", such securities until the expiration of 40 days
after the date of acquisition.
(e) "Book Value" when used with reference to Common Shares issued by
any Person shall mean the amount of equity of such Person applicable to each
Common Share, determined (i) in accordance with generally accepted accounting
principles in effect on the date as of which such Book Value is to be
determined, (ii) using all the consolidated assets and all the consolidated
liabilities of such Person on the date as of which such Book Value is to be
determined, except that no value shall be included in such assets for goodwill
arising from consummation of a Business Combination, and (iii) after giving
effect to (A) the exercise of all rights, options and warrants to purchase
such Common Shares (other than the Rights), and the conversion of all
securities convertible into such Common Shares, at an exercise or conversion
price, per Common Share, which is less than such Book Value before giving
effect to such exercise or conversion, (B) all dividends and other
distributions on the capital stock of such Person declared prior to the date
as of which such Book Value is to be determined and to be paid or made after
such date, and (C) any other agreement, arrangement or understanding (written
or oral), or transaction or other action prior to the date as of which such
Book Value is to be determined which would have the effect of thereafter
reducing such Book Value.
(f) "Brink's Stock" shall mean the The Brink's Company Common Stock,
par value $1.00 per share, of the Company.
(g) "Business Combination" shall have the meaning set forth in
Section 13(a) of this Rights Agreement.
(h) "Business Day" shall mean each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions in the
Borough of Manhattan, The City of New York, are authorized or obligated by law
or executive order to close.
(i) "Close of Business" on any given date shall mean 5 p.m., New
York City time, on such date; provided, however, that if such date is not a
Business Day, "Close of Business" shall mean 5 p.m., New York City time, on
the next succeeding Business Day.
(j) "Common Shares" when used with reference to the Company prior to
a Business Combination shall mean shares of Brink's Stock or any other shares
of capital stock of the Company into which Brink's Stock shall be reclassified
or changed; provided, however, that "Common Shares" shall mean shares of
Brink's Stock (or any other shares of capital stock into which Brink's Stock
shall be reclassified or changed) whenever a determination of whether a Person
shall have become the Beneficial Owner of, or shall
have made a tender or exchange offer for, Common Shares representing a
specified percentage of the total Voting Rights of all the Common Shares then
outstanding is required to be made herein. "Common Shares" when used with
reference to any Person (other than the Company prior to a Business
Combination) shall mean shares of capital stock of such Person (if such Person
is a corporation) of any class or series, or units of equity interests in such
Person (if such Person is not a corporation) of any class or series, the terms
of which do not limit (as a fixed amount and not merely in proportional terms)
the amount of dividends or income payable or distributable on such class or
series or the amount of assets distributable on such class or series upon any
voluntary or involuntary liquidation, dissolution or winding up of such Person
and do not provide that such class or series is subject to redemption at the
option of such Person, or any shares of capital stock or units of equity
interests into which the foregoing shall be reclassified or changed; provided,
however, that if at any time there shall be more than one such class or series
of capital stock or equity interests of such Person, "Common Shares" of such
Person shall include all such classes and series substantially in the
proportion of the total number of shares or other units of each such class or
series outstanding at such time.
(k) "Common Stock" shall have the meaning set forth in the first
introductory paragraph of this Rights Agreement.
(l) "Company" shall have the meaning set forth in the heading of
this Rights Agreement; provided, however, that if there is a Business
Combination, "Company" shall have the meaning set forth in Section 13(b) of
this Rights Agreement.
(m) The term "control", with respect to any Person, shall mean the
power to direct the management and policies of such Person, directly or
indirectly, by or through stock ownership, agency or otherwise, or pursuant to
or in connection with an agreement, arrangement or understanding (written or
oral) with one or more other Persons by or through stock ownership, agency or
otherwise; and the terms "controlling" and "controlled" shall have meanings
correlative to the foregoing.
(n) [RESERVED]
(o) "Distribution Date" shall have the meaning set forth in Section
3(a) of this Rights Agreement.
(p) "Effective Date" shall have the meaning set forth in the fourth
introductory paragraph of this Rights Agreement.
(q) "Equivalent Shares" shall mean any Preferred Shares and any
other class or series of capital stock of the Company which is entitled to
participate in dividends and other distributions, including distributions upon
the liquidation, dissolution or winding up of the Company, on a proportional
basis with Brink's Stock. In calculating the number of any class or series of
Equivalent Shares for purposes of Section 11 of this Rights Agreement, the
number of shares, or fractions of a share, of such class or series of capital
stock that is entitled to the same dividend or distribution as a whole share
of Brink's Stock shall be deemed to be one share.
(r) "Exchange Act" shall mean the Securities Exchange Act of 1934,
as in effect on the date in question, unless otherwise specifically provided
in this Rights Agreement.
(s) "Expiration Date" shall have the meaning set forth in Section
7(a) of this Rights Agreement.
(t) "Major Part" when used with reference to the assets of the
Company and its Subsidiaries as of any date shall mean assets (i) having a
fair market value aggregating 50% or more of the total fair market value of
all the assets of the Company and its Subsidiaries (taken as a whole) as of
the date in question, (ii) accounting for 50% or more of the total value (net
of depreciation and amortization) of all the assets of the Company and its
Subsidiaries (taken as a whole), as would be shown on a consolidated or
combined balance sheet of the Company and its Subsidiaries as of the date in
question, prepared in accordance with generally accepted accounting principles
then in effect, or (iii) accounting for 50% or more of the total amount of net
income of the Company and its Subsidiaries (taken as a whole), as would be
shown on a consolidated or combined statement of income of the Company and its
Subsidiaries for the period of 12 months ending on the last day of the
Company's monthly accounting period next preceding the date in question,
prepared in accordance with generally accepted accounting principles then in
effect.
(u) "Market Value" when used with reference to Common Shares or
Equivalent Shares on any date shall be deemed to be the average of the daily
closing prices, per share, of such Common Shares or Equivalent Shares for the
period which is the shorter of (1) 30 consecutive Trading Days immediately
prior to the date in question or (2) the consecutive Trading Days beginning on
the date of the first public announcement of the event requiring a
determination of the Market Value and ending on the Trading Day immediately
prior to the record date of such event; provided, however, that in the event
that the Market Value of such Common Shares or Equivalent Shares is to be
determined in whole or in part during a period following the announcement by
the issuer of such Common Shares or Equivalent Shares of any dividend,
distribution or other action of the type described in paragraph (a), (b), (c)
or (d) of Section 11 of this Rights Agreement that would require an adjustment
thereunder, then, and in each such case, the Market Value of such Common
Shares or Equivalent Shares shall be appropriately adjusted to reflect the
effect of such action on the market price of such Common Shares or Equivalent
Shares. The closing price for each Trading Day shall be the last sale price,
regular way, or, in case no such sale takes place on such Trading Day, the
average of the closing bid and asked prices, regular way, in either case as
reported in the principal consolidated transaction reporting system with
respect to a security listed or admitted to trading on a national securities
exchange or, if such security is not listed or admitted to trading on any
national securities exchange, the last quoted price or, if not so quoted, the
average of the high bid and low asked prices in the over-the-counter market,
as reported by the National Association of Securities Dealers, Inc. Automated
Quotations System ("NASDAQ") or such other system then in use, or, if on any
such Trading Day the applicable securities are not quoted by any such
organization, the average of the closing bid and asked prices as furnished by
a professional market maker making a market in the shares of such securities
selected by the Board of Directors of the Company. If on any such Trading Day
no market maker is making a market in such securities, the fair value of such
securities on such Trading Day shall mean the fair value of such securities as
determined in good faith by the Board of Directors of the Company (whose
determination shall be described in a statement filed with the Rights Agent
and shall be binding on the Rights Agent, the holders of Rights and all other
Persons).
(v) "Person" shall mean an individual, corporation, partnership,
joint venture, association, trust, unincorporated organization or other
entity.
(w) "Preferred Shares" shall mean the Series A Preferred Shares. Any
reference in this Rights Agreement to Preferred Shares shall be deemed to
include any authorized fraction of a Preferred Share, unless the context
otherwise requires.
(x) "Principal Party" shall mean the Surviving Person in a Business
Combination; provided, however, that if such Surviving Person is a direct or
indirect Subsidiary of any other Person, "Principal Party" shall mean the
Person which is the ultimate parent of such Surviving Person and which is not
itself a Subsidiary of another Person. In the event ultimate control of such
Surviving Person is shared by two or more Persons, "Principal Party" shall
mean that Person that is immediately controlled by such two or more Persons.
(y) "Purchase Price" with respect to each Brink's Right shall mean
$60.00, as such amount may from time to time be adjusted as provided herein,
and shall be payable in lawful money of the United States of America. All
references herein to the Purchase Price shall mean the Purchase Price as in
effect at the time in question.
(z) "Record Date" shall have the meaning set forth in the first
introductory paragraph of this Rights Agreement.
(aa) "Redemption Date" shall mean the time when the Rights are
ordered to be redeemed by the Board of Directors of the Company as provided in
Section 24(a) of this Rights Agreement.
(bb) "Redemption Price" shall mean the price required to be paid
upon the redemption of the Rights as provided in Section 24 of this Rights
Agreement.
(cc) "Registered Common Shares" shall mean Common Shares which are,
as of the date of consummation of a Business Combination, and have been
continuously registered under Section 12 of the Exchange Act during the
preceding 12 months.
(dd) "Right Certificates" shall have the meaning set forth in
Section 3(a) of this Rights Agreement.
(ee) "Rights" shall have the meaning set forth in the third
introductory paragraph of this Rights Agreement.
(ff) "Securities Act" shall mean the Securities Act of 1933, as in
effect on the date in question, unless otherwise specifically provided in this
Rights Agreement.
(gg) "Series A Preferred Shares" shall mean the Series A
Participating Cumulative Preferred Stock, par value $10 per share, of the
Company which the Board of Directors of the Company has heretofore
established.
(hh) "Share Acquisition Date" shall mean the first date of public
disclosure by the Company or an Acquiring Person that an Acquiring Person has
become an Acquiring Person.
(ii) "Subsidiary" shall mean a Person, a majority of the total
outstanding Voting Rights of which is owned, directly or indirectly, by
another Person or by such other Person and one or more other Subsidiaries of
such other Person.
(jj) "Surviving Person" shall mean (1) the Person which is the
continuing or surviving Person in a consolidation or merger specified in
clause (i) or (ii) of Section 13(a) of this Rights Agreement or (2) the Person
to which the Major Part of the assets of the Company and its Subsidiaries are
sold, leased, exchanged or otherwise transferred or disposed of in a
transaction specified in clause (iii) of Section 13(a) of this Rights
Agreement; provided, however, that if the Major Part of the assets of the
Company and its Subsidiaries are sold, leased, exchanged or otherwise
transferred or disposed of in one or more related transactions specified in
clause (iii) of Section 13(a) of this Rights Agreement to more than one
Person, the "Surviving Person" in such case shall mean the Person that
acquired assets of the Company and/or its Subsidiaries with the greatest fair
market value in such transaction or transactions.
(kk) "Trading Day" shall mean a day on which the principal national
securities exchange (or principal recognized foreign stock exchange, as the
case may be) on which any shares or Rights, as the case may be, are listed or
admitted to trading is open for the transaction of business or, if the shares
or Rights in question are not listed or admitted to trading on any national
securities exchange (or recognized foreign stock exchange, as the case may
be), a Business Day.
(ll) "Triggering Event" shall have the meaning set forth in clause
(ii) of Section 11(e) of this Rights Agreement.
(mm) "Voting Rights" when used with reference to the capital stock
of, or units of equity interests in, any Person shall mean the right under
ordinary circumstances (and not merely upon the happening of a contingency) to
vote in the election of directors of such Person (if such Person is a
corporation) or to participate in the management and control of such Person
(if such Person is not a corporation).
Section 2. Appointment of Rights Agent. The Company hereby appoints
the Rights Agent to act as agent for the Company in accordance with the terms
and conditions hereof, and the Rights Agent hereby accepts such appointment.
The Company may from time to time appoint one or more co-Rights Agents as it
may deem necessary or desirable (the term "Rights Agent" being used herein to
refer, collectively, to the
Rights Agent together with any such co-Rights Agents), upon ten (10) days
prior written notice to the Rights Agent. Failure to give the notice provided
for in this Section 2, however, or any defect therein shall not affect the
legality or validity of the appointment of any one or more co-Rights Agents.
In the event the Company appoints one or more co-Rights Agents, the respective
duties of the Rights Agent and any co-Rights Agents shall be as the Company
shall determine, however, the Rights Agent shall have no duty to supervise,
and shall in no event be liable for, the acts or omissions of any such
co-Rights Agent.
Section 3. Issue of Right Certificates. (a) Until the earlier of (i)
such time that a Person has become an Acquiring Person or (ii) on such date,
if any, as may be designated by the Board of Directors of the Company
following the commencement of, or first public disclosure of an intent to
commence, a tender or exchange offer by any Person (other than the Company,
any Subsidiary of the Company, any employee benefit plan of the Company or of
any of its Subsidiaries, or any Person holding Common Shares for or pursuant
to the terms of any such employee benefit plan) for outstanding Common Shares,
if upon consummation of such tender or exchange offer such Person could be the
Beneficial Owner of more than 15% of the total Voting Rights of all the
outstanding Common Shares (including any such date which is after the date of
this Rights Agreement and prior to the issuance of the Rights) (the Close of
Business on the earlier of such dates being herein referred to as the
"Distribution Date"), (x) the Rights will be evidenced by the certificates for
Brink's Stock registered in the names of the holders thereof (which
certificates for Brink's Stock shall also be deemed to be certificates for the
Rights) and not by separate certificates, and (y) the Rights, including the
right to receive certificates as herein provided, will be transferable only in
connection with the transfer of Common Shares. As soon as practicable after
the Distribution Date, the Rights Agent will send, by first-class, insured,
postage prepaid mail, to each record holder of Brink's Stock as of the close
of business on the Distribution Date, at the address of such holder shown on
the records of the Company, one or more right certificates in substantially
the form of Exhibit A hereto (the "Right Certificates"), evidencing one Right
for each share of Brink's Stock so held. As of and after the Distribution
Date, the Rights will be evidenced solely by such Right Certificates.
(b) Until the earliest of the Distribution Date, the Redemption Date
or the Expiration Date, the surrender for transfer of any of the certificates
for the Common Shares in respect of which Rights have been issued shall also
constitute the transfer of the Rights associated with the Common Shares
represented by such certificate.
(c) Rights shall be issued in respect of all Common Shares which are
issued after the Effective Date but prior to the earliest of the Distribution
Date, the Redemption Date or the Expiration Date. Certificates representing
Common Shares shall also be deemed to be certificates for the Rights, and
shall bear the following legend:
This certificate also evidences and entitles the holder hereof to
certain Rights as set forth in an Amended and Restated Rights Agreement
dated as of September 1, 2003 (the "Rights Agreement"), between The
Brink's Company and EquiServe Trust Company, N.A., as Rights Agent, the
terms of which are hereby
incorporated herein by reference and a copy of which is on file at the
principal executive offices of The Brink's Company. The term "Rights
Agreement" as used herein includes each amendment thereto or supplement
thereof made from time to time, the terms of each of which are
incorporated herein by reference and a copy of each of which is on file
as hereinabove stated. Under certain circumstances, as set forth in the
Rights Agreement, such Rights will be evidenced by separate certificates
and will no longer be evidenced by this certificate. The Brink's Company
will mail to the holder of this certificate a copy of the Rights
Agreement without charge after receipt of a written request therefor.
Under no circumstances shall Rights evidenced by this certificate be
transferred to any Person who is or becomes an Acquiring Person or an
Affiliate or Associate thereof (as such terms are defined in the Rights
Agreement) and any such purported transfer shall be, and shall render
such Rights, null and void.
Until the Distribution Date the Rights associated with the Common
Shares represented by such certificates shall be evidenced by such
certificates alone, and the surrender for transfer of any such certificate
shall also constitute the transfer of the Rights associated with the Common
Shares represented thereby.
Section 4. Forms of Right Certificates. The Right Certificates (and
the forms of assignment and the forms of election to purchase to be printed on
the reverse thereof) shall be in substantially the forms set forth as Exhibit
A hereto and may have such marks of identification or designation and such
legends, summaries or endorsements printed thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of this Rights
Agreement, or as may be required to comply with any applicable law or with any
rule or regulation made pursuant thereto or with any rule or regulation of any
stock exchange on which the Rights may from time to time be listed, or to
conform to usage. Subject to the provisions of Sections 11 and 23 hereof, the
Right Certificates, whenever issued, shall be dated as of the Record Date, and
on their face shall entitle the holders thereof to purchase such number of
Preferred Shares as shall be set forth therein for the Purchase Price set
forth therein.
Section 5. Execution, Countersignature and Registration. (a) The
Right Certificates shall be executed on behalf of the Company by the Chairman
of the Board, the President or any Vice President of the Company, either
manually or by facsimile signature, and have affixed thereto the Company's
seal or a facsimile thereof which shall be attested by the Secretary or an
Assistant Secretary of the Company, either manually or by facsimile signature.
The Right Certificate shall be manually countersigned by the Rights Agent and
shall not be valid or obligatory for any purpose unless so countersigned. In
case any officer of the Company who shall have signed any of the Right
Certificates shall cease to be such officer of the Company before
countersignature by the Rights Agent and issuance and delivery by the Company,
such Right Certificates may nevertheless be countersigned by the Rights Agent,
and issued and delivered by the Company, with the same force and effect as
though the person who signed such Right Certificates had not ceased to be such
officer of the Company; and any Right Certificate may be signed on behalf of
the Company by any person who, at the actual date of the execution of such
Right Certificate, shall be a proper officer of the Company to sign such Right
Certificate, although at the date of the
execution of this Rights Agreement any such person was not such an officer of
the Company.
(b) Following the Distribution Date, the Rights Agent will keep or
cause to be kept, at its office in New York, New York, books for registration
and transfer of the Right Certificates issued hereunder. Such books shall show
the names and addresses of the respective holders of the Right Certificates,
the number of Rights evidenced by each of the Right Certificates, the
certificate number of each of the Right Certificates and the date of each of
the Right Certificates.
Section 6. Transfer, Split-up, Combination and Exchange of Right
Certificates; Mutilated, Destroyed, Lost or Stolen Right Certificates. (a)
Subject to the provisions of Section 7(e) and Section 15 hereof, at any time
after the Distribution Date, and at or prior to the Close of Business on the
earlier of the Redemption Date or the Expiration Date, any Right Certificate
or Certificates may be transferred, split-up, combined or exchanged for
another Right Certificate or Certificates, entitling the registered holder to
purchase a like number of Preferred Shares as the Right Certificate or
Certificates surrendered then entitled such holder to purchase. Any registered
holder desiring to transfer, split-up, combine or exchange any Right
Certificate shall make such request in writing delivered to the Rights Agent,
and shall surrender the Right Certificate or Certificates to be transferred,
split-up, combined or exchanged at the principal office of the Rights Agent.
Thereupon the Rights Agent shall, subject to Section 7(e) and Section 15
hereof, countersign and deliver to the Person entitled thereto a Right
Certificate or Certificates, as the case may be, as so requested. The Company
may require payment of a sum sufficient to cover any tax or governmental
charge that may be imposed in connection with any transfer, split-up,
combination or exchange of Right Certificates.
(b) Upon receipt by the Company and the Rights Agent of evidence
reasonably satisfactory to them of the loss, theft, destruction or mutilation
of a valid Right Certificate, and, in case of loss, theft or destruction, of
indemnity or security reasonably satisfactory to them, and, at the Company's
request, reimbursement to the Company and the Rights Agent of all reasonable
expenses incidental thereto, and upon surrender to the Rights Agent and
cancelation of the Right Certificate if mutilated, the Company will make a new
Right Certificate of like tenor and deliver such new Right Certificate to the
Rights Agents for delivery to the registered owner in lieu of the Right
Certificate so lost, stolen, destroyed or mutilated.
Section 7. Exercise of Rights; Expiration Date of Rights;
Restriction on Transfer of Rights. (a) Each Right shall entitle the registered
holder thereof, upon the exercise thereof as provided herein, to purchase, for
the Purchase Price, at any time after the earlier of the Distribution Date or
the occurrence of a Triggering Event and at or prior to the earlier of (i) the
Close of Business on September 25, 2007 (the Close of Business on such date
being herein referred to as the "Expiration Date") or (ii) the Redemption
Date, one one-thousandth (1/1000th) of a Preferred Share, subject to
adjustment from time to time as provided in Sections 11 and 13 of this Rights
Agreement.
(b) The registered holder of any Right Certificate may exercise the
Rights evidenced thereby (except as otherwise provided herein) in whole or in
part at any time after the Distribution Date upon surrender of the Right
Certificate, with the form of election to purchase on the reverse side thereof
duly executed, to the Rights Agent at the office of the Rights Agent in New
York, New York, together with payment of the Purchase Price for such one
one-thousandth (1/1000th) of a Preferred Share as to which the Rights are
exercised, at or prior to the earlier of (i) the Expiration Date or (ii) the
Redemption Date.
(c) Upon receipt of a Right Certificate representing exercisable
Rights, with the form of election to purchase duly executed, accompanied by
payment of the Purchase Price for the Preferred Shares to be purchased
together with an amount equal to any applicable transfer tax, in lawful money
of the United States of America, in cash or by certified check or money order
payable to the order of the Company, the Rights Agent shall thereupon promptly
(i) requisition from any transfer agent of the Preferred Shares (or make
available, if the Rights Agent is the transfer agent) certificates for the
number of Preferred Shares to be purchased and the Company hereby irrevocably
authorizes its transfer agent to comply with all such requests, (ii) when
appropriate, requisition from the Company the amount of cash to be paid in
lieu of issuance of fractional shares in accordance with Section 15 hereof,
(iii) promptly after receipt of such certificates, cause the same to be
delivered to or upon the order of the registered holder of such Right
Certificate, registered in such name or names as may be designated by such
holder, and (iv) when appropriate, after receipt promptly deliver such cash to
or upon the order of the registered holder of such Right Certificate.
(d) In case the registered holder of any Right Certificate shall
exercise less than all the Rights evidenced thereby, a new Right Certificate
evidencing Rights equivalent to the Rights remaining unexercised shall be
issued by the Rights Agent and delivered to the registered holder of such
Right Certificate or to his duly authorized assigns, subject to the provisions
of Section 15 hereof.
(e) Notwithstanding anything in this Agreement to the contrary,
Rights, including Rights evidenced by certificates for Common Shares, shall
not at any time be transferable to an Acquiring Person or any Affiliate or
Associate of an Acquiring Person or to any Person who subsequently becomes an
Acquiring Person or Affiliate or Associate of an Acquiring Person, although at
the time of the purported transfer such Person was not an Acquiring Person or
an Affiliate or Associate thereof. Any attempt to transfer Rights to any such
Person shall be null and void as of the date of the purported
transfer. Any Right which has been the subject of any such purported transfer
shall be null and void, and thereafter may not be exercised by any Person
(including any subsequent transferee) for Preferred Shares or capital stock of
the Company pursuant to any provision hereof. The Company may require (or
cause the Rights Agent or any transfer agent of the Company to require) any
Person who submits a Right Certificate (or a certificate representing Common
Shares which evidences, or but for the provisions of this Section 7(e) would
evidence, Rights) for transfer on the registry books or to exercise the Rights
represented thereby to establish to the reasonable satisfaction of the Company
that such Rights have not been the subject of any purported transfer in
violation of the provision of this Section 7(e). The Company shall use all
reasonable efforts to ensure that the provisions of this Section 7(e) are
complied with, but shall have no liability to any holder of Right Certificates
or any other Person as a result of its failure to make any determinations with
respect to an Acquiring Person or its Affiliates or Associates hereunder.
(f) Notwithstanding anything in this Rights Agreement to the
contrary, neither the Rights Agent nor the Company shall be obligated to
undertake any action with respect to a registered holder of any Right
Certificates upon the occurrence of any purported exercise as set forth in
this Section 7 unless such registered holder shall have (i) completed and
signed the certificate contained in the form of election to purchase set forth
on the reverse side of the Right Certificate surrendered for such exercise,
and (ii) provided such additional evidence of the identity of the Beneficial
Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the
Company shall reasonably request.
Section 8. Cancelation and Destruction of Right Certificates. All
Right Certificates surrendered for the purposes of exercise, transfer,
split-up, combination or exchange shall, if surrendered to the Company or to
any of its agents, be delivered to the Rights Agent for cancelation or in
canceled form, or, if surrendered to the Rights Agent, shall be canceled by
it, and no Right Certificates shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Rights Agreement. The
Company shall deliver to the Rights Agent for cancelation and retirement, and
the Rights Agent shall so cancel and retire, any Right Certificate purchased
or acquired by the Company. The Rights Agent shall deliver all canceled Right
Certificates to the Company, or shall, at the written request of the Company,
destroy such canceled Right Certificates, and in such case shall deliver a
certificate of destruction thereof to the Company.
Section 9. Reservation and Availability of Preferred Shares. (a) The
Company covenants and agrees that it will cause to be reserved and kept
available out of its authorized and unissued Preferred Shares, free from
preemptive rights or any right of first refusal, a number of Preferred Shares
sufficient to permit the exercise in full of all outstanding Rights.
(b) The Company covenants and agrees that it will take all such
action as may be necessary to ensure that all Preferred Shares delivered upon
exercise of Rights shall, at the time of delivery of the certificates for such
Preferred Shares (subject to
payment of the Purchase Price), be duly and validly authorized and issued and
fully paid and non-assessable shares.
(c) So long as the Preferred Shares issuable upon the exercise of
Rights are to be listed on any national securities exchange, the Company
covenants and agrees to use its best efforts to cause, from and after such
time as the Rights become exercisable, all Preferred Shares reserved for such
issuance to be listed on such exchange upon official notice of issuance upon
such exercise.
(d) The Company further covenants and agrees that it will pay when
due and payable any and all Federal and state transfer taxes and charges which
may be payable in respect of the issuance or delivery of Right Certificates or
of any Preferred Shares upon the exercise of the Rights. The Company shall
not, however, be required to pay any transfer tax which may be payable in
respect of any transfer or delivery of Right Certificates to a Person other
than, or in respect of the issuance or delivery of certificates for the
Preferred Shares in a name other than that of, the registered holder of the
Right Certificate evidencing Rights surrendered for exercise or to issue or
deliver any certificates for Preferred Shares upon the exercise of any Rights
until any such tax shall have been paid (any such tax being payable by the
holder of such Right Certificate at the time of surrender) or until it has
been established to the Company's satisfaction that no such tax is due.
(e) In the event that there shall not be sufficient authorized but
unissued Preferred Shares to permit the exercise or exchange of Rights in
accordance with Section 11, the Company covenants and agrees that it will take
all such action as may be necessary to authorize additional Preferred Shares
for issuance upon the exercise or exchange of Rights pursuant to Section 11;
provided, however, that if the Company is unable to cause the authorization of
additional Preferred Shares, then the Company shall, or in lieu of seeking any
such authorization, the Company may, to the extent necessary and permitted by
applicable law and any agreements or instruments in effect prior to the
Distribution Date to which it is a party, (i) upon surrender of a Right, pay
cash equal to the Purchase Price in lieu of issuing Preferred Shares and
requiring payment therefor, (ii) upon due exercise of a Right and payment of
the Purchase Price for each Preferred Share as to which such Right is
exercised, issue equity securities having a value equal to the value of the
Preferred Shares which otherwise would have been issuable pursuant to Section
11, which value shall be determined by a nationally recognized investment
banking firm selected by the Board of Directors of the Company or (iii) upon
due exercise of a Right and payment of the Purchase Price for each Preferred
Share as to which such Right is exercised, distribute a combination of
Preferred Shares, cash and/or other equity and/or debt securities having an
aggregate value equal to the value of the Preferred Shares which otherwise
would have been issuable pursuant to Section 11, which value shall be
determined by a nationally recognized investment banking firm selected by the
Board of Directors of the Company. To the extent that any legal or contractual
restrictions (pursuant to agreements or instruments in effect prior to the
Distribution Date to which it is party) prevent the Company from paying the
full amount payable in accordance with the foregoing sentence, the Company
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 as such payments become permissible under such
legal or contractual restrictions until such payments have been paid in full.
Section 10. Preferred Shares Record Date. Each Person in whose name
any certificate for Preferred Shares is issued upon the exercise of Rights
shall for all purposes be deemed to have become the holder of record of the
Preferred Shares represented thereby on, and such certificate shall be dated,
the date upon which the Right Certificate evidencing such Rights was duly
surrendered and payment of the Purchase Price (and any applicable transfer
taxes) was made; provided, however, that if the date of such surrender and
payment is a date upon which the Preferred Shares transfer books of the
Company are closed, such person shall be deemed to have become the record
holder of such shares on, and such certificate shall be dated, the next
succeeding Business Day on which the Preferred Shares transfer books of the
Company are open.
Section 11. Adjustment of Number and Kind of Shares and the Purchase
Price. The number and kind of shares subject to purchase upon the exercise of
each Right and the Purchase Price are subject to adjustment from time to time
as provided in this Section 11.
(a) In the event at any time after the date of this Rights Agreement
the Company shall (i) declare a dividend, or make a distribution, on any class
of its Common Shares payable in Common Shares, (ii) subdivide (by stock split
or otherwise) or split any class of its outstanding Common Shares into a
larger number of Common Shares or (iii) combine (by reverse stock split or
otherwise) or consolidate any class of its outstanding Common Shares into a
smaller number of Common Shares, then, in each such event, (1) the number of
Preferred Shares issuable upon exercise of each Right at the time of the
record date for such dividend or distribution or the effective date of such
subdivision or combination, shall be adjusted so that the number of Preferred
Shares thereafter issuable upon exercise of such Right shall equal the result
obtained by multiplying the number of Preferred Shares issuable upon exercise
of each Right at such time by a fraction, the numerator of which shall be the
total number of Rights outstanding immediately prior to such time and the
denominator of which shall be the total number of Rights outstanding
immediately following such time, and (2) the Purchase Price in effect at such
time shall be adjusted so that the Purchase Price thereafter shall equal the
result obtained by multiplying the Purchase Price in effect immediately prior
to such time by the fraction referred to in the preceding clause (1).
(b) In the event at any time after the date of this Rights Agreement
the Company shall (i) declare a dividend, or make a distribution, on any
series of its outstanding Preferred Shares payable in Preferred Shares, (ii)
subdivide (by stock split or otherwise) or split any series of its outstanding
Preferred Shares into a larger number of Preferred Shares, (iii) combine (by a
reverse stock split or otherwise) or consolidate any series of its outstanding
Preferred Shares into a smaller number of Preferred Shares or (iv) issue any
shares of its capital stock in a reclassification or change of any series of
its outstanding Preferred Shares (including any such reclassification or
change in connection with a merger in which the Company is the continuing or
surviving corporation), then in each such event, the number and kind of shares
of capital stock issuable upon the exercise
of each Right at the time of the record date for such dividend or distribution
or the effective date of such subdivision, combination or reclassification
shall be adjusted so that the holder of any Right exercised after such time
shall be entitled to receive, for the Purchase Price, the aggregate number and
kind of shares of capital stock which such holder would have owned and been
entitled to receive by virtue of such dividend, subdivision, combination or
reclassification if such holder had exercised such Right immediately prior to
such time.
(c) If at any time after the date of this Rights Agreement the
Company shall fix a record date for the issuance of rights, options or
warrants to all holders of any class of Common Shares or of any class or
series of Equivalent Shares entitling such holders (for a period expiring
within 45 calendar days after such record date) to subscribe for or purchase
Common Shares or Equivalent Shares (or securities convertible into Common
Shares or Equivalent Shares) at a price per share (or having a conversion
price per share, if a security convertible into Common Shares or Equivalent
Shares) less than the Market Value of such Common Shares or Equivalent Shares
on such record date, then, in each such case, each Right outstanding
immediately prior to such record date shall thereafter evidence the right to
purchase, for the Purchase Price, that number of one one-thousandths
(1/1000ths) of a Preferred Share obtained by multiplying the number of one
one-thousandths (1/1000ths) of a Preferred Share issuable upon exercise of a
Right immediately prior to such record date by a fraction, the numerator of
which shall be the number of Common Shares and Equivalent Shares (if any)
outstanding on such record date plus the number of additional Common Shares or
Equivalent Shares, as the case may be, to be offered for subscription or
purchase (or into which the convertible securities so to be offered are
initially convertible) and the denominator of which shall be the total number
of Common Shares and Equivalent Shares (if any) outstanding on such record
date plus the number of Common Shares or Equivalent Shares, as the case may
be, which the aggregate offering price of the total number of Common Shares or
Equivalent Shares, as the case may be, so to be offered (and/or the aggregate
initial conversion price of the convertible securities so to be offered) would
purchase at such Market Value. In case such subscription price may be paid in
a consideration, part or all of which shall be in a form other than cash, the
value of such consideration shall be as determined in good faith by the Board
of Directors of the Company, whose determination shall be described in a
statement filed with the Rights Agent. Common Shares and Equivalent Shares
owned by or held for the account of the Company or any Subsidiary of the
Company shall not be deemed outstanding for the purpose of any such
computation. Such adjustment shall be made successively whenever such a record
date is fixed; and in the event that such rights, options or warrants are not
so issued, each Right shall be adjusted to evidence the right to receive that
number of one one-thousandths (1/1000ths) of a Preferred Share which such
Right would have entitled the holder to receive, for the Purchase Price, if
such record date had not been fixed.
(d) If at any time after the date of this Rights Agreement the
Company shall fix a record date for the making of a distribution to all
holders of any class of Common Shares or of any class or series of Equivalent
Shares (including any such distribution made in connection with a merger in
which the Company is the continuing or surviving corporation or in connection
with a statutory share exchange with the Company
after which the Company is not a Subsidiary of any Acquiring Person or any
Associate or Affiliate of any Acquiring Person) of cash (other than a regular
periodic cash dividend at a rate not in excess of 125% of the rate of the last
regular cash dividend theretofore paid on the class of Common Shares,
evidences of indebtedness, assets, securities (other than Common Shares or
Preferred Shares) or subscription rights, options or warrants (excluding those
referred to in Section 11(c)), then, in each such case, each Right outstanding
immediately prior to such record date shall thereafter evidence the right to
purchase, for the Purchase Price, that number of one one-thousandths
(1/1000ths) of a Preferred Share obtained by multiplying the number of one
one-thousandths (1/1000ths) of a Preferred Share issuable upon exercise of
such Right immediately prior to such record date by a fraction, the numerator
of which shall be the Market Value of such Common Shares or Equivalent Shares
on the record date and the denominator of which shall be the Market Value of
such Common Shares or Equivalent Shares on such record date less the fair
market value (as determined in good faith by the Board of Directors of the
Company, whose determination shall be described in a statement filed with the
Rights Agent) of the portion of the cash, evidences of indebtedness, assets or
securities so to be distributed or of such subscription rights, options or
warrants applicable to one Common Share or Equivalent Share, as the case may
be. Such adjustments shall be made successively whenever such a record date is
fixed; and in the event that such distribution is not so made, each Right
shall be adjusted to evidence the right to receive that number of one
one-thousandths (1/1000ths) of a Preferred Share which such Right would have
entitled the holder to receive, for the Purchase Price, if such record date
had not been fixed.
(e) (i) If any Acquiring Person or any Affiliate or Associate of any
Acquiring Person, at any time after the date of this Rights Agreement,
directly or indirectly, shall merge into the Company or otherwise combine with
the Company and the Company shall be the continuing or surviving corporation
of such merger or combination and all the Common Shares shall remain
outstanding and unchanged, or shall effect a statutory share exchange with the
Company after which the Company is not a Subsidiary of any Acquiring Person or
any Affiliate or Associate of any Acquiring Person (such merger, share
exchange or combination being herein referred to as an "Affiliate Merger")
then, in each such case, proper provision shall be made so that each holder of
a Right, except as provided in Section 7(e) hereof and below, shall thereafter
have a right to receive, upon exercise thereof for the Purchase Price in
accordance with the terms of this Rights Agreement, such number of Common
Shares as shall equal the result obtained by multiplying the Purchase Price by
a fraction, the numerator of which is the number of one one-thousandths
(1/1000ths) of a Preferred Share for which such Right is then exercisable and
the denominator of which is 50% of the Market Value of the Common Shares on
the date of the occurrence of such merger or combination. The Company shall
not consummate any Affiliate Merger unless upon such consummation it shall
have sufficient authorized Common Shares that have not been issued or reserved
for issuance to permit the exercise in full of the Rights in accordance with
this Section 11(e)(i) and unless prior thereto a registration statement under
the Securities Act on an appropriate form, with respect to the Common Shares
purchasable upon exercise of the Rights, shall be effective under the
Securities Act. The Company covenants and agrees to use its best efforts to:
(A) cause a registration statement under the Securities Act on
an appropriate form with respect to the Common Shares purchasable
upon exercise of the Rights, to remain effective (with a prospectus
at all times meeting the requirements of the Securities Act) until
the Expiration Date;
(B) qualify or register the Common Shares purchasable upon
exercise of the Rights under the blue sky laws of such jurisdictions
as may be necessary or appropriate; and
(C) list the Common Shares purchasable upon the exercise of the
Rights on each national securities exchange on which the Common
Shares were listed prior to the consummation of such Affiliate
Merger.
(ii) Upon a Person becoming an Acquiring Person (such event being
herein referred to as a "Triggering Event"), proper provision shall be made so
that each holder of a Right, except as provided in Section 7(e), shall
thereafter have a right to receive, upon exercise thereof for the Purchase
Price in accordance with the terms of this Rights Agreement, such number of
thousandths (1/1,000s) of a Preferred Share as shall equal the result obtained
by multiplying the Purchase Price by a fraction, the numerator of which is the
number of thousandths (1/1,000s) of a Preferred Share for which a Right is
then exercisable and the denominator of which is 50% of the Market Value of
the Common Shares on the date on which a Person becomes an Acquiring Person.
As soon as practicable after a Person becomes an Acquiring Person (provided
the Company shall not have elected to make the exchange permitted by Section
11(e)(iii)(A) for all outstanding Rights), the Company covenants and agrees to
use its best efforts to:
(1) prepare and file a registration statement under the
Securities Act, on an appropriate form, with respect to the
Preferred Shares purchasable upon exercise of the Rights;
(2) cause such registration statement to become effective as
soon as practicable after such filing;
(3) cause such registration statement to remain effective (with
a prospectus at all times meeting the requirements of the Securities
Act) until the Expiration Date; and
(4) qualify or register the Preferred Shares purchasable upon
exercise of the Rights under the blue sky or securities laws of such
jurisdictions as may be necessary or appropriate.
The Company may temporarily suspend, for a period of time not to
exceed 90 calendar days after the date set forth in the immediately preceding
sentence, the exercisability of the Rights in order to prepare and file such
registration statement and permit it to become effective. Upon any such
suspension, the Company shall issue a public announcement stating that the
exercisability of the Rights has been temporarily suspended, as well as a
public announcement at such time as the suspension is no longer in effect.
(iii)(A) The Board of Directors of the Company may, at its option,
at any time after a Person becomes an Acquiring Person, mandatorily exchange
all or part of the then outstanding and exercisable Rights (which shall not
include Rights that shall have become null and void and nontransferable
pursuant to the provisions of Section 7(e)) for consideration per Right
consisting of either (x) one-half of the securities that would be issuable at
such time upon the exercise of one Right in accordance with Section 11(a),
11(b), 11(c), 11(e)(ii) or, if applicable, Section 9(e)(ii) or (iii) or, (y)
if applicable, the cash consideration specified in Section 9(e)(i) (the
consideration issuable per Right pursuant to this Section 11(e)(iii)(A) being
the "Exchange Consideration"). The Board of Directors of the Company may, at
its option, issue, in substitution for Preferred Shares, Common Shares in an
amount per Preferred Share equal to the Brink's Formula Number (each as
defined in the Company's Restated Articles of Incorporation) if there are
sufficient authorized but unissued Common Shares. If the Board of Directors of
the Company elects to exchange all or part of the Rights for the Exchange
Consideration pursuant to this Section 11(e)(iii)(A) prior to the physical
distribution of the Right Certificates, the Corporation may distribute the
Exchange Consideration in lieu of distributing Right Certificates, in which
case for purposes of this Rights Agreement holders of Rights shall be deemed
to have simultaneously received and surrendered for exchange Right
Certificates on the date of such distribution.
(B) Any action of the Board of Directors of the Company ordering the
exchange of any Rights pursuant to Section 11(e)(iii)(A) shall be irrevocable
and, immediately upon the taking of such action and without any further action
and without any notice, the right to exercise any such Right pursuant to
Section 11(e)(ii) shall terminate and the only right thereafter of a holder of
such Right shall be to receive the Exchange Consideration in exchange for each
such Right held by such holder or, if the Exchange Consideration shall not
have been paid or issued, to exercise any such Right pursuant to Section 13.
The Company shall promptly give public notice of any such exchange; provided,
however, that the failure to give, or any defect in, such notice shall not
affect the validity of such exchange. The Company promptly shall mail a notice
of any such exchange to all 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
Shares. Any notice which is mailed in the manner herein provided shall be
deemed given, whether or not the holder receives the notice. Each such notice
of exchange will state the method by which the exchange of the Rights for the
Exchange Consideration will be effected and, in the event of any partial
exchange, the number of Rights which will be exchanged. Any partial exchange
shall be effected pro rata based on the number of Rights (other than Rights
which shall have become null and void and nontransferable pursuant to the
provisions of Section 7(e)) held by each holder of Rights.
(iv) If an event occurs which would require an adjustment under both
subparagraph (e)(i) or (e)(ii) of this Section 11 and paragraph (a), (b), (c)
or (d) of this Section 11, the adjustment provided for in paragraph (a), (b),
(c) or (d) of this Section 11 shall be in addition to, and shall be made prior
to, any adjustment required pursuant to subparagraph (e)(i) or (e)(ii) of this
Section 11; provided, however, that if a single event occurs that represents
both an Affiliate Merger or Triggering Event and a Business
Combination, the Rights exercisable upon such event shall be exercisable only
in a manner set forth in Section 13(a) of this Rights Agreement and no
adjustment shall be made pursuant to any paragraph of this Section 11.
(f) All calculations under this Section 11 shall be made to the
nearest hundred-thousandth of a share.
(g) If as a result of an adjustment made pursuant to Section 11(b)
hereof, the holder of any Right thereafter exercised shall become entitled to
receive any shares of any class of capital stock of the Company other than
Preferred Shares, thereafter the number of such other shares so receivable
upon exercise of any Right shall be subject to adjustment from time to time in
a manner and on terms as nearly equivalent as practicable to the provisions
with respect to the Preferred Shares contained in paragraphs (a) through (e),
inclusive, of this Section 11 and the provisions of Sections 7, 9, 10 and 13
hereof with respect to the Preferred Shares shall apply on like terms to any
such other shares.
(h) All Rights originally issued by the Company subsequent to any
adjustment made to the amount of Preferred Shares or other capital stock
relating to a Right shall evidence the right to purchase, for the Purchase
Price, the adjusted number and kind of shares of capital stock purchasable
from time to time hereunder upon exercise of the Rights, all subject to
further adjustment as provided herein.
(i) Irrespective of any adjustment or change in the Purchase Price
or the number of Preferred Shares or number or kind of other shares of capital
stock issuable upon the exercise of the Rights, the Right Certificates
theretofore and thereafter issued may continue to express the terms which were
expressed in the initial Right Certificates issued hereunder.
(j) In any case in which this Section 11 shall require that an
adjustment be made effective as of a record date for a specified event, the
Company may elect to defer until the occurrence of such event the issuing to
the holder of any Right exercised after such record date the Preferred Shares
and/or other shares of capital stock or securities of the Company, if any,
issuable upon such exercise over and above the Preferred Shares and/or other
shares of capital stock or securities of the Company, if any, issuable before
giving effect to such adjustment; provided, however, that the Company shall
deliver to such holder a due xxxx or other appropriate instrument evidencing
such holder's right to receive such additional shares upon the occurrence of
the event requiring such adjustment.
(k) After the occurrence of an Affiliate Merger, the number of
Common Shares thereafter receivable upon exercise of any Right shall be
subject to adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to the Preferred
Shares contained in Sections 7, 9, 10, 11 and 13 hereof.
Section 12. Certificate of Adjustment. Whenever an adjustment is
made as provided in Section 11 or Section 13 hereof, the Company shall (a)
promptly prepare a certificate setting forth such adjustment and a brief
statement of the facts accounting for such adjustment, (b) promptly file with
the Rights Agent and with each transfer agent for the Preferred Shares a copy
of such certificate and (c) mail a brief summary thereof to each holder of a
Right Certificate in accordance with Section 26 hereof. The Rights Agent shall
be fully protected in relying on any such certificate and on any adjustment
therein contained.
Section 13. Consolidation, Merger, Share Exchange or Sale or
Transfer of Major Part of Assets. (a) In the event that, following the
Distribution Date, directly or indirectly, any transactions specified in the
following clauses (i), (ii) or (iii) hereof (each such transaction being
herein referred to as a "Business Combination") shall be consummated:
(i) the Company shall consolidate with, or merge with and
into, any other Person;
(ii) any Person shall merge with and into the Company and
in connection with such merger, all or part of the Common Shares
shall be changed into or exchanged for capital stock or other
securities of any other Person or cash or any other property or the
Company shall enter into a statutory share exchange with any Person
after which the Company is a Subsidiary of such Person or any
Affiliate or Associate of such Person; or
(iii) the Company shall sell, lease, exchange or otherwise
transfer or dispose of (or one or more of its Subsidiaries shall
sell, lease, exchange or otherwise transfer or dispose of), in one
or more transactions, the Major Part of the assets of the Company
and its Subsidiaries (taken as a whole) to any other Person or
Persons,
then, in each such case, proper provision shall be made so that each holder of
a valid Right shall thereafter have the right to receive, upon the exercise
thereof for the Purchase Price in accordance with the terms of this Rights
Agreement, the securities specified below:
(A) If the Principal Party in such Business Combination has
Registered Common Shares outstanding, each Right shall thereafter
represent the right to receive, upon the exercise thereof at the
Purchase Price in accordance with the terms of this Rights
Agreement, such number of Registered Common Shares of such Principal
Party, free and clear of all liens, encumbrances or other adverse
claims, as shall be equal to the result obtained by multiplying the
Purchase Price by a fraction, the numerator of which shall be the
number of one one-thousandths (1/1000ths) of a Preferred Share for
which a Right was exercisable immediately prior to consummation of
such Business Combination and the denominator of which shall be 50%
of the Market Value of each Registered Common Share of such
Principal Party on the date of such Business Combination.
(B) If the Principal Party in such Business Combination does
not have Registered Common Shares outstanding, each Right shall
thereafter represent the right to receive, upon the exercise thereof
at the Purchase Price in accordance with the terms of this Rights
Agreement, at the election of the holder of such Right at the time
of the exercise thereof:
(1) such number of Common Shares of the Surviving Person
in such Business Combination as shall be equal to the result
obtained by multiplying the Purchase Price by a fraction, the
numerator of which shall be the number of one one-thousandths
(1/1000ths) of a Preferred Share for which a Right was
exercisable immediately prior to the consummation of such
Business Combination and the denominator of which shall be 50%
of the Book Value of each Common Share of such Surviving Person
immediately after giving effect to such Business Combination;
or
(2) such number of Common Shares of the Principal Party in
such Business Combination (if the Principal Party is not also
the Surviving Person in such Business Combination) as shall be
equal to the result obtained by multiplying the Purchase Price
by a fraction, the numerator of which shall be the number of
one one-thousandths (1/1000ths) of a Preferred Share for which
a Right was exercisable immediately prior to the consummation
of such Business Combination and the denominator of which shall
be 50% of the Book Value of each Common Share of the Principal
Party immediately after giving effect to such Business
Combination; or
(3) if the Principal Party in such Business Combination is
an Affiliate of one or more Persons which has Registered Common
Shares outstanding, such number of Registered Common Shares of
whichever of such Affiliates of the Principal Party has
Registered Common Shares with the greatest aggregate Market
Value on the date of consummation of such Business Combination
as shall be equal to the result obtained by multiplying the
Purchase Price by a fraction, the numerator of which shall be
the number of one one-thousandths (1/1000ths) of a Preferred
Share for which a Right was exercisable immediately prior to
the consummation of such Business Combination and the
denominator of which shall be 50% of the Market Value of each
Registered Common Share of such Affiliate on the date of such
Business Combination.
All Common Shares of any Person for which any Right may be exercised after
consummation of a Business Combination as provided in this Section 13(a)
shall, when issued upon exercise thereof in accordance with this Rights
Agreement, be validly issued, fully paid and nonassessable and free of
preemptive rights, rights of first refusal or any other restrictions or
limitations on the transfer or ownership thereof.
(b) After consummation of any Business Combination (i) each
issuer of Common Shares for which Rights may be exercised as set forth in
paragraph (a) of this
Section 13 shall be liable for, and shall assume, by virtue of such Business
Combination, all the obligations and duties of the Company pursuant to this
Rights Agreement, (ii) the term "Company" shall thereafter be deemed to refer
to such issuer, (iii) each such issuer shall take such steps in connection
with such consummation as may be necessary to assure that the provisions
hereof shall thereafter be applicable, as nearly as reasonably may be, in
relation to its Common Shares thereafter deliverable upon the exercise of the
Rights, and (iv) the number of Common Shares of each such issuer thereafter
receivable upon exercise of any Right shall be subject to adjustment from time
to time in a manner and on terms as nearly equivalent as practicable to the
provisions with respect to the Preferred Shares contained in Sections 7, 9,
10, 11 and 13 hereof.
(c) The Company shall not consummate any Business Combination
unless each issuer of Common Shares for which Rights may be exercised, as set
forth in paragraph (a) of this Section 13, shall have sufficient authorized
Common Shares that have not been issued or reserved for issuance to permit the
exercise in full of the Rights in accordance with this Section 13 and unless
prior thereto:
(i) a registration statement under the Securities Act on an
appropriate form, with respect to the Rights and the Common Shares
of such issuer purchasable upon exercise of the Rights, shall be
effective under the Securities Act; and
(ii) the Company and each such issuer shall have:
(A) executed and delivered to the Rights Agent a
supplemental agreement providing for the obligation of such
issuer to issue Common Shares upon the exercise of Rights in
accordance with the terms set forth in paragraphs (a) and (b)
of this Section 13 and further providing that such issuer, at
its own expense, will:
(I) use its best efforts to cause a registration
statement under the Securities Act on an appropriate form,
with respect to the Rights and the Common Shares of such
issuer purchasable upon exercise of the Rights, to remain
effective (with a prospectus at all times meeting the
requirements of the Securities Act) until the Expiration
Date;
(II) use its best efforts to qualify or register the
Rights and the Common Shares of such issuer purchasable
upon exercise of the Rights under the blue sky or
securities laws of such jurisdictions as may be necessary
or appropriate; and
(III) use its best efforts to list the Rights and the
Common Shares purchasable upon exercise of the Rights on
each national securities exchange on which the Common
Shares were listed prior to the consummation of the
Business Combination or, if the Common Shares were not
listed on a national securities exchange
prior to the consummation of the Business Combination, on
a national securities exchange;
(B) furnished to the Rights Agent an opinion of
independent counsel stating that such supplemental agreement is
a valid, binding and enforceable agreement of such issuer; and
(C) filed with the Rights Agent a certificate of a
nationally recognized firm of independent accountants setting
forth the number of Common Shares of such issuer which may be
purchased upon the exercise of each Right after the
consummation of such Business Combination.
(d) In the event a Business Combination shall be consummated at any
time after the occurrence of an Affiliate Merger or a Triggering Event, the
Rights that have not been exercised prior to such time shall thereafter become
exercisable in the manner set forth in paragraph (a) of this Section 13.
Section 14. Additional Covenants. (a) Notwithstanding any other
provision of this Rights Agreement, no adjustment to the number of Preferred
Shares (or fractions of a share) or other shares of capital stock for which a
Right is exercisable or the number of Rights outstanding or associated with
each Common Share or any similar or other adjustment shall be made or be
effective if such adjustment would have the effect of reducing or limiting the
benefits the holders of the Rights would have had absent such adjustment,
including, without limitation, the benefits under Section 11 and Section 13
hereof, unless the terms of this Rights Agreement are amended so as to
preserve such benefits.
(b) The Company covenants and agrees that it shall not effect any
Business Combination or Affiliate Merger if at the time of, or immediately
after such Business Combination or Affiliate Merger, there are any rights,
options, warrants or other instruments of any Person which is a party to such
Business Combination or Affiliate Merger outstanding which would eliminate or
diminish the benefits intended to be afforded by the Rights.
(c) In the event the nature of the organization of any Person shall
preclude or limit the acquisition of Common Shares of such Person upon
exercise of the Rights as required by Section 13(a) hereof as a result of a
Business Combination, it shall be a condition to such Business Combination
that such Person shall take such steps (including, but not limited to, a
reorganization) as may be necessary to assure that the benefits intended to be
derived under Section 13 hereof upon the exercise of the Rights are assured to
the holders thereof.
Section 15. Fractional Rights and Fractional Shares. (a) The Company
shall not be required to issue fractions of Rights or to distribute Right
Certificates which evidence fractional Rights. In lieu of such fractional
Rights, there shall be paid to the registered holders of the Right
Certificates with regard to which such fractional Rights would otherwise be
issuable, an amount in cash equal to the same fraction of the current
market value of a whole Right. For the purposes of this Section 15(a), the
current market value of a whole Right shall be the closing price of the Rights
for the Trading Day immediately prior to the date on which such fractional
Rights would have been otherwise issuable. The closing price for any day shall
be the last sale price, regular way, or, in case no such sale takes place on
such day, the average of the closing bid and asked prices, regular way, in
either case as reported in the principal consolidated transaction reporting
system with respect to Rights listed or admitted to trading on a national
securities exchange or, if the Rights are not listed or admitted to trading on
any national securities exchange, the last quoted price or, if not so quoted,
the average of the high bid and low asked prices in the over-the-counter
market, as reported by NASDAQ or such other system then in use or, if on any
such date the Rights are not quoted by any such organization, the average of
the closing bid and asked prices as furnished by a professional market maker
making a market in the Rights selected by the Board of Directors of the
Company. If on any such date no such market maker is making a market in the
Rights, the fair value of the Rights on such date as determined in good faith
by the Board of Directors of the Company shall be used.
(b) The Company may, but shall not be required to, issue fractions
of shares upon exercise of the Rights or to distribute certificates which
evidence fractional shares. In lieu of fractional shares, the Company may
elect to (i) utilize a depositary arrangement as provided by the terms of the
Preferred Shares or (ii) in the case of a fraction of a share other than one
one-thousandth (1/1000th) of a share or any integral multiple thereof, pay to
the registered holders of Right Certificates at the time such Rights are
exercised as herein provided an amount in cash equal to the same fraction of
the current market value of one Preferred Share, if any are outstanding and
publicly traded (or the current market value of one Common Share in the event
that the Preferred Shares are not outstanding and publicly traded). For
purposes of this Section 15(b), the current market value of a Preferred Share
(or Common Share) shall be the closing price of a Preferred Share (or Common
Share) (as determined pursuant to the second sentence of Section 1(u) of this
Rights Agreement) for the Trading Day immediately prior to the date of such
exercise.
(c) The holder of a Right by the acceptance of the Rights expressly
waives his right to receive any fractional Rights or any fractional shares
upon exercise of a Right.
Section 16. Rights of Action. (a) All rights of action in respect of
this Rights Agreement are vested in the respective registered holders of the
Right Certificates (and, prior to the Distribution Date, the registered
holders of the Common Shares); and any registered holder of any Right
Certificate (or, prior to the Distribution Date, of the Common Shares),
without the consent of the Rights Agent or of the holder of any other Right
Certificate (or, prior to the Distribution Date, of the Common Shares), may,
in his own behalf and for his own benefit, enforce, and may institute and
maintain any suit, action or proceeding against the Company to enforce, or
otherwise act in respect of, his right to exercise the Rights evidenced by
such Right Certificate in the manner provided in such Right Certificate and in
this Rights Agreement. Without limiting the foregoing or any remedies
available to the holders of Rights, it is specifically acknowledged that the
holders of Rights would not have an adequate remedy at law for any breach of
this Rights Agreement and shall be entitled to specific performance of the
obligations of any Person under, and injunctive relief against actual or
threatened violations of the obligations of any Person subject to, this Rights
Agreement.
(b) Any holder of Rights who prevails in an action to enforce the
provisions of this Rights Agreement shall be entitled to recover the
reasonable costs and expenses, including attorneys' fees, incurred in such
action.
Section 17. Transfer and Ownership of Rights and Right Certificates.
(a) Prior to the Distribution Date, the Rights will be transferable only in
connection with the transfer of the Common Shares.
(b) After the Distribution Date, the Right Certificates will be
transferable, subject to Section 7(e) hereof, only on the registry books of
the Rights Agent if surrendered at the principal office of the Rights Agent,
duly endorsed or accompanied by a proper instrument of transfer.
(c) The Company and the Rights Agent may deem and treat the Person
in whose name a Right Certificate (or, prior to the Distribution Date, the
associated Common Shares certificate) is registered as the absolute owner
thereof and of the Rights evidenced thereby (notwithstanding any notations of
ownership or writing on the Right Certificates or the associated certificate
for Common Shares made by anyone other than the Company or the Rights Agent)
for all purposes whatsoever, and neither the Company nor the Rights Agent
shall be affected by any notice to the contrary.
Section 18. Right Certificate Holder Not Deemed a Shareholder. No
holder, as such, of any Right Certificate shall be entitled to vote or receive
dividends or be deemed, for any purpose, the holder of the Preferred Shares or
of any other securities of the Company which may at any time be issuable on
the exercise of the Rights represented thereby, nor shall anything contained
herein or in any Right Certificate be construed to confer upon the holder of
any Right Certificate, as such, any of the rights of a shareholder of the
Company, including, without limitation, any right to vote for the election of
directors or upon any matter submitted to shareholders at any meeting thereof,
or to give or withhold consent to any corporate action, or to receive notice
of meetings or other actions affecting shareholders (except as provided in
Section 25 hereof), or to receive dividends or other distributions or
subscription rights, or otherwise, until the Right or Rights evidenced by such
Right Certificate shall have been exercised in accordance with the provisions
hereof.
Section 19. Concerning the Rights Agent. (a) The Company agrees to
pay to the Rights Agent reasonable compensation for all services rendered by
it hereunder and from time to time, on demand of the Rights Agent, its
reasonable expenses and counsel fees and other disbursements incurred in the
administration and execution of this Rights Agreement and the exercise and
performance of its duties hereunder. The Company also agrees to indemnify the
Rights Agent for, and to hold it harmless against, any loss, liability, or
expense, incurred without gross negligence, bad faith or wilful
misconduct on the part of the Rights Agent, for anything done or omitted by
the Rights Agent in connection with the acceptance and administration of this
Rights Agreement, including the costs and expenses of defending against any
claim of liability arising therefrom, directly or indirectly.
(b) The Rights Agent shall be protected and shall incur no liability
for or in respect of any action taken, suffered or omitted by it in connection
with its administration of this Rights Agreement in reliance upon any Right
Certificate or certificate for Common Shares or for other securities of the
Company, instrument of assignment or transfer, power of attorney, endorsement,
affidavit, letter, notice, direction, consent, certificate, statement, or
other paper or document believed by it to be genuine and to be signed,
executed and, where necessary, verified or acknowledged, by the proper Person
or Persons.
Section 20. Merger or Consolidation or Change of Rights Agent. (a)
Any corporation into which the Rights Agent or any successor Rights Agent may
be merged or with which it may be consolidated, or any corporation resulting
from any merger or consolidation to which the Rights Agent or any successor
Rights Agent shall be a party, or any corporation succeeding to the stock
transfer or corporate trust business of the Rights Agent or any successor
Rights Agent, shall be the successor to the Rights Agent under this Rights
Agreement without the execution or filing of any paper or any further act on
the part of any of the parties hereto, provided that such corporation would be
eligible for appointment as a successor Rights Agent under the provisions of
Section 22 hereof. In case, at the time such successor Rights Agent shall
succeed to the agency created by this Rights Agreement, any of the Right
Certificates shall have been countersigned but not delivered, any such
successor Rights Agent may adopt the countersignature of the predecessor
Rights Agent and deliver such Right Certificates so countersigned; and in case
at that time any of the Right Certificates shall not have been countersigned,
any successor Rights Agent may countersign such Right Certificates either in
the name of the predecessor Rights Agent or in the name of the successor
Rights Agent; and in all such cases such Right Certificates shall have the
full force provided in the Right Certificates and in this Rights Agreement.
(b) In case at any time the name of the Rights Agent shall be
changed and at such time any of the Right Certificates shall have been
countersigned but not delivered, the Rights Agent may adopt the
countersignature under its prior name and deliver Right Certificates so
countersigned; and in case at that time any of the Right Certificates shall
not have been countersigned, the Rights Agent may countersign such Right
Certificates either in its prior name or in its changed name; and in all such
cases such Right Certificates shall have the full force provided in the Right
Certificates and in this Rights Agreement.
Section 21. Duties of Rights Agent. The Rights Agent undertakes the
duties and obligations imposed by this Rights Agreement upon the following
terms and conditions, by all of which the Company and the holders of Right
Certificates, by their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel (who may be
legal counsel for the Company), and the opinion of such counsel shall be full
and complete authorization and protection to the Rights Agent as to any action
taken or omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Rights
Agreement the Rights Agent shall deem it necessary or desirable that any fact
or matter (including, without limitation, the identity of any Acquiring
Person) be proved or established by the Company prior to taking or suffering
any action hereunder, such fact or matter (unless other evidence in respect
thereof be herein specifically prescribed) may be deemed to be conclusively
proved and established by a certificate signed by any one of the Chairman of
the Board, the President, the Chief Financial Officer, a Vice President, the
Treasurer or the Secretary of the Company and delivered to the Rights Agent;
and such certificate shall be full authorization to the Rights Agent for any
action taken or suffered in good faith by it under the provisions of this
Rights Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder only for its own
gross negligence, bad faith or wilful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of
the statements of fact or recitals contained in this Rights Agreement or in
the Right Certificates (except as to its countersignature thereof) or be
required to verify the same, but all such statements and recitals are and
shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be under any responsibility in
respect of the validity of this Rights Agreement or the execution and delivery
hereof (except the due execution hereof by the Rights Agent) or in respect of
the validity or execution of any Right Certificate (except its
countersignature thereof); nor shall it be responsible for any breach by the
Company of any covenant or condition contained in this Rights Agreement or in
any Right Certificate; nor shall it be responsible for any adjustment required
under the provisions of Section 11 or 13 hereof or responsible for the manner,
method or amount of any such adjustment or the ascertaining of the existence
of facts that would require any such adjustment (except with respect to the
exercise of Rights evidenced by Right Certificates after actual notice of any
such adjustment); nor shall it by any act hereunder be deemed to make any
representation or warranty as to the authorization or reservation of any
Preferred Shares or Common Shares to be issued pursuant to this Rights
Agreement or any Right Certificate or as to whether any Preferred Shares or
Common Shares will, when so issued, be validly authorized and issued, fully
paid and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge
and deliver or cause to be performed, executed, acknowledged and delivered all
such further and other acts, instruments and assurances as may reasonably be
required by the Rights Agent for the carrying out or performing by the Rights
Agent of the provisions of this Rights Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from any
one of the Chairman of the Board, the President, any Vice President, the
Secretary or the Treasurer of the Company, and to apply to such officers for
advice or instructions in connection with its duties and it shall not be
liable for any action taken or suffered to be taken by it in good faith in
accordance with instructions of any such officer.
(h) The Rights Agent and any shareholder, director, officer or
employee of the Rights Agent may buy, sell or deal in any of the Rights or
other securities of the Company or become pecuniarily interested in any
transaction in which the Company may be interested, or contract with or lend
money to the Company or otherwise act as fully and freely as though it were
not the Rights Agent under this Rights Agreement. Nothing herein shall
preclude the Rights Agent from acting in any other capacity for the Company or
for any other legal entity.
(i) The Rights Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either itself or by
or through its attorneys or agents, and the Rights Agent shall not be
answerable or accountable for any act, default, neglect or misconduct of any
such attorneys or agents or for any loss to the Company resulting from any
such act, default, neglect or misconduct provided reasonable care was
exercised in the selection and continued employment thereof.
(j) ANYTHING IN THIS AGREEMENT TO THE CONTRARY NOTWITHSTANDING, IN
NO EVENT SHALL THE RIGHTS AGENT BE LIABLE FOR SPECIAL, INDIRECT OR
CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND WHATSOEVER (INCLUDING, BUT NOT
LIMITED TO, LOST PROFITS), EVEN IF THE RIGHTS AGENT HAS BEEN ADVISED OF THE
LIKELIHOOD OF SUCH LOSS OR DAMAGE AND REGARDLESS OF THE FORM OF ACTION.
Section 22. Change of Rights Agent. The Rights Agent or any
successor Rights Agent may resign and be discharged from its duties under this
Rights Agreement upon 30 days' notice in writing mailed to the Company and to
each transfer agent of the Common Shares or Preferred Shares by registered or
certified mail and to the holders of the Right Certificates by first-class
mail. The Company may remove the Rights Agent or any successor Rights Agent
upon 30 days' notice in writing mailed to the Rights Agent or successor Rights
Agent, as the case may be, and to each transfer agent of the Common Shares or
Preferred Shares by registered or certified mail, and to the holders of the
Right Certificates by first-class mail. If the Rights Agent shall resign or be
removed or shall
otherwise become incapable of acting, the Company shall appoint a successor to
the Rights Agent. If the Company shall fail to make such appointment within a
period of 30 days after giving notice of such removal or after it has been
notified in writing of such resignation or incapacity by the resigning or
incapacitated Rights Agent or by the holder of a Right Certificate (who shall,
with such notice, submit such holder's Right Certificate for inspection by the
Company), then the registered holder of any Right Certificate may apply to any
court of competent jurisdiction for the appointment of a new Rights Agent. Any
successor Rights Agent, whether appointed by the Company or by such a court,
shall be a corporation or trust company organized and doing business under the
laws of the United States, in good standing, which is authorized under such
laws to exercise corporate trust or stock transfer powers and is subject to
supervision or examination by Federal or state authority and which has
individually or combined with an affiliate at the time of its appointment as
Rights Agent a combined capital and surplus of at least $100 million dollars.
After appointment, the successor Rights Agent shall be vested with the same
powers, rights, duties and responsibilities as if it had been originally named
as Rights Agent without further act or deed; but the predecessor Rights Agent
shall deliver and transfer to the successor Rights Agent any property at the
time held by it hereunder, and execute and deliver any further assurance,
conveyance, act or deed necessary for the purpose. Not later than the
effective date of any such appointment the Company shall file notice thereof
in writing with the predecessor Rights Agent and each transfer agent of the
Common Shares or Preferred Shares, and mail a notice thereof in writing to the
registered holders of the Right Certificates. Failure to give any notice
provided for in this Section 22, however, or any defect therein, shall not
affect the legality or validity of the resignation or removal of the Rights
Agent or the appointment of the successor Rights Agent, as the case may be.
Section 23. Issuance of New Right Certificates. Notwithstanding any
of the provisions of this Rights Agreement or of the Rights to the contrary,
the Company may, at its option, issue new Right Certificates evidencing Rights
in such form as may be approved by its Board of Directors to reflect any
adjustment or change made in accordance with the provisions of this Rights
Agreement. In addition, in connection with the issuance or sale of Common
Shares following the Distribution Date and prior to the earlier of the
Redemption Date or the Expiration Date, the Company (a) shall, with respect to
Common Shares so issued or sold pursuant to the exercise of stock options or
under any employee plan or arrangement, or upon the exercise, conversion or
exchange of securities, notes or debentures issued by the Company, and (b)
may, in any other case, if deemed necessary or appropriate by the Board of
Directors of the Company, issue Right Certificates representing the
appropriate number of Rights in connection with such issuance or sale;
provided, however, that (i) no such Right Certificate shall be issued if, and
to the extent that, the Company shall be advised by counsel that such issuance
would create a significant risk of material adverse tax consequences to the
Company or the Person to whom such Right Certificate would be issued, and (ii)
no such Right Certificate shall be issued if, and to the extent that,
appropriate adjustment shall otherwise have been made in lieu of the issuance
thereof.
Section 24. Redemption and Termination. (a) The Board of Directors
of the Company may, at its option, at any time prior to the earliest of (i)
such time as a
Person becomes an Acquiring Person or (ii) the Expiration Date, order the
redemption of all, but not less than all, the then outstanding Rights at a
Redemption Price of $.01 per Right (which may, in the discretion of the Board
of Directors of the Company, in lieu of cash be paid with securities deemed by
the Board of Directors, in the exercise of its sole discretion, to be
equivalent in value thereto).
(b) Immediately upon the action of the Board of Directors of the
Company ordering the redemption of the Rights, and without any further action
and without any notice, the right to exercise the Rights will terminate and
the only right thereafter of the holders of Rights shall be to receive the
Redemption Price. Within ten calendar days after the action of the Board of
Directors of the Company ordering the redemption of the Rights, the Company
shall give notice of such redemption to the holders of the then outstanding
Rights by mailing such notice to all such holders at their last addresses as
they appear upon the registry books of the Rights Agent or, prior to the
Distribution Date, on the registry books of the transfer agent for the Common
Shares. Each such notice of redemption will state the method by which the
payment of the Redemption Price will be made. The notice, if mailed in the
manner herein provided, shall be conclusively presumed to have been duly
given, whether or not the holder of Rights receives such notice. In any case,
failure to give such notice by mail, or any defect in the notice, to any
particular holder of Rights shall not affect the sufficiency of the notice to
other holders of Rights.
Section 25. Notice of Certain Events. (a) In case the Company shall
propose (i) to take any action of the type described in paragraph (a), (b),
(c) or (d) of Section 11 hereof that would require an adjustment thereunder,
(ii) to effect any Business Combination or (iii) to effect the liquidation,
dissolution or winding up of the Company, then, in such case, the Company
shall give to each holder of a Right Certificate, in accordance with Section
26 hereof, a notice of such proposed action, which shall specify any record
date for the purposes of determining any participation therein by the holders
of the Preferred Shares, or the date on which such action is to take place and
the date of any participation therein by the holders of the Preferred Shares,
if any such date is to be fixed, and such notice shall be so given at least 20
days prior to any such record date, the taking of such action or the date of
participation therein by the holders of the Preferred Shares, whichever shall
be the earliest.
(b) In case an Affiliate Merger or Triggering Event shall occur,
then, in any such case, the Company shall as soon as practicable thereafter
give to each holder of a Right Certificate, in accordance with Section 26
hereof, a notice of the occurrence of such Affiliate Merger or Triggering
Event, which shall specify the Affiliate Merger and the Triggering Event and
the consequences of such Affiliate Merger or Triggering Event to holders of
Rights under Section 11(e) hereof.
Section 26. Notices. Notices or demands authorized by this Agreement
to be given or made by the Rights Agent or by the holder of any Right
Certificate to or on the Company shall be sufficiently given or made if sent
by first-class mail, postage prepaid, addressed (until another address is
filed in writing with the Rights Agent) as follows:
The Brink's Company
X.X. Xxx 00000
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000-0000
Attention: Secretary
Subject to the provisions of Section 22 hereof, any notice or demand
authorized by this Rights Agreement to be given or made by the Company or by
the holder of any Right Certificate to or on the Rights Agent shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed (until another address is filed in writing with the Company) as
follows:
EquiServe Trust Company, N.A.
XX 00-00-00
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Client Administration
Notices or demands authorized by this Rights Agreement to be given or made by
the Company or the Rights Agent to any holder of a Right Certificate shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed to such holder at the address of such holder as shown on the
registry books of the Rights Agent or, prior to the Distribution Date, on the
registry books of the transfer agent for the Common Shares.
Section 27. Supplements and Amendments. At any time prior to the
Distribution Date and subject to the last sentence of this Section 27, the
Company and the Rights Agent shall, if the Company so directs, supplement or
amend any provision of this Rights Agreement (including, without limitation,
the date on which the Distribution Date shall occur) without the approval of
any holder of the Rights. From and after the Distribution Date and subject to
applicable law, the Company and the Rights Agent shall, if the Company so
directs, amend this Rights Agreement without the approval of any holders of
Right Certificates (i) to cure any ambiguity or to correct or supplement any
provision contained herein which may be defective or inconsistent with any
other provision of this Rights Agreement, or (ii) to make any other provisions
in regard to matters or questions arising hereunder which the Company may deem
necessary or desirable and which shall not adversely affect the interests of
the holders of Right Certificates (other than an Acquiring Person or an
Affiliate or Associate of an Acquiring Person). Upon the delivery of a
certificate from an appropriate officer of the Company which states that a
proposed supplement or amendment to this Rights Agreement is in
compliance with the provisions of this Section 27, the Rights Agent shall
execute such supplement or amendment. Notwithstanding anything contained in
this Rights Agreement to the contrary, no supplement or amendment to this
Rights Agreement shall be made which reduces the Redemption Price or provides
for an earlier Expiration Date.
Section 28. Successors. All the covenants and provisions of this
Rights Agreement by or for the benefit of the Company or the Rights Agent
shall bind and inure to the benefit of their respective successors and assigns
hereunder.
Section 29. Benefits of this Rights Agreement; Determinations and
Actions by the Board of Directors, etc. (a) Nothing in this Rights Agreement
shall be construed to give to any persons or corporation other than the
Company, the Rights Agent and the registered holders of the Right Certificates
(and, prior to the Distribution Date, the Common Shares) any legal or
equitable right, remedy or claim under this Rights Agreement; but this Rights
Agreement shall be for the sole and exclusive benefit of the Company, the
Rights Agent and the registered holders of the Right Certificates (and, prior
to the Distribution Date, the Common Shares).
(b) The Board of Directors of the Company shall have the exclusive
power and authority to administer this Rights Agreement and to exercise all
rights and power specifically granted to the Board of Directors of the Company
or to the Company, or as may be necessary or advisable in the administration
of this Rights Agreement, including, without limitation, the right and power
to (i) interpret the provisions of this Rights Agreement, and (ii) make all
determinations deemed necessary or advisable for the administration of this
Rights Agreement (including, without limitation, a determination to redeem or
not redeem the Rights or to amend this Rights Agreement and a determination of
whether a Triggering Event has occurred). All such actions, calculations,
interpretations, and determinations (including, for purposes of clause (y)
below, all omissions with respect to the foregoing) which are done or made by
the Board of Directors of the Company in good faith, shall (x) be final,
conclusive and binding on the Company, the Rights Agent, the holders of the
Rights and all other parties, and (y) not subject the Board of Directors of
the Company to any liability to the holders of the Rights.
Section 30. Severability. If any term, provision, covenant or
restriction of this Rights Agreement is held by a court of competent
jurisdiction or other authority to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions of this Rights
Agreement shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
Section 31. Governing Law. This Rights Agreement and each Right
Certificate issued hereunder shall be deemed to be a contract made under the
laws of the Commonwealth of Virginia and for all purposes shall be governed by
and construed in accordance with the laws of such Commonwealth applicable to
contracts to be made and performed entirely within such Commonwealth;
provided, however, that the provisions of Sections 19, 20, 21 and 22 of this
Rights Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
Section 32. Counterparts. This Rights Agreement may be executed in
any number of counterparts and each of such counterparts shall for all
purposes be deemed to be an original, and all such counterparts shall together
constitute but one and the same instrument.
Section 33. Descriptive Headings. Descriptive headings of the
several Sections of this Rights Agreement are inserted for convenience only
and shall not control or affect the meaning or construction of any of the
provisions of this Rights Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Rights
Agreement to be duly executed and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
THE BRINK'S COMPANY,
by /s/ Xxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President - Corporate
Finance and Treasurer
Attest:
by /s/ Xxxxx X. Xxxxx
-------------------------
Name: Xxxxx X. Xxxxx
Title: Assistant Secretary
EQUISERVE TRUST COMPANY, N.A.,
as Rights Agent,
by /s/ Xxxxx Xxxxxx-Xxxx
-----------------------------
Name: Xxxxx Xxxxxx-Xxxx
Title: Managing Director
Attest:
by /s/ Xxxxxxx Xxxx
-------------------------
Name: Xxxxxxx Xxxx
Title: Senior Account Manager
EXHIBIT A
TO THE RIGHTS AGREEMENT
[Form of Right Certificate]
Certificate No. BRR- ___________________ Rights
NOT EXERCISABLE AFTER SEPTEMBER 25, 2007, OR EARLIER IF REDEEMED. THE RIGHTS
ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT $.01 PER RIGHT, ON
THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER NO CIRCUMSTANCES MAY THIS
RIGHT CERTIFICATE OR THE RIGHTS EVIDENCED BY THIS RIGHT CERTIFICATE BE
TRANSFERRED TO AN ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF AN
ACQUIRING PERSON (AS EACH SUCH TERM IS DEFINED IN THE RIGHTS AGREEMENT) OR TO
ANY PERSON WHO SUBSEQUENTLY BECOMES SUCH A PERSON AND ANY PURPORTED TRANSFER
OF RIGHTS TO ANY SUCH PERSON SHALL BE, AND SHALL RENDER THE RIGHTS PURPORTED
TO BE TRANSFERRED, NULL AND VOID.
The Brink's Company Rights Certificate
THE BRINK'S COMPANY
This certifies that _________________, or registered assigns, is the
registered owner of the number of The Brink's Company Rights (the "Rights")
set forth above, each of which entitles the owner thereof, subject to the
terms, provisions and conditions of the Amended and Restated Rights Agreement
dated as of September 1, 2003 (the "Rights Agreement"), between The Brink's
Company, a Virginia corporation (formerly The Pittston Company and defined
herein as the "Company"), and EquiServe Trust Company, N.A., as Rights Agent
(the "Rights Agent"), unless the Rights evidenced hereby shall have been
previously redeemed, to purchase from the Company at any time after the
Distribution Date (as defined in the Rights Agreement) and prior to 5:00 p.m.,
New York City time, on September 25, 2007 (the "Expiration Date"), at the
principal office of the Rights Agent, or its successors as Rights Agent, in
New York, New York, one one-thousandth (1/1000th) of a fully paid,
nonassessable share of Series A Participating Cumulative Preferred Stock, par
value $10 per share, of the Company (the "Preferred Shares"), at a purchase
price of $60.00 per one one-thousandth (1/1000th) of a share (the "Purchase
Price"), upon presentation and surrender of this Right Certificate with the
Form of Election to Purchase duly executed.
The Purchase Price and the number and kind of shares which may be
purchased upon exercise of each Right evidenced by this Right Certificate, as
set forth above, are the Purchase Price and the number and kind of shares
which may be so purchased as of January 14, 2000. As provided in the Rights
Agreement, the Purchase Price and the
number and kind of shares which may be purchased upon the exercise of each
Right evidenced by this Right Certificate are subject to modification and
adjustment upon the happening of certain events.
Under no circumstances may this Right Certificate or the Rights
evidenced by this Right Certificate be transferred to an Acquiring Person or
an Affiliate or Associate of an Acquiring Person (as each such term is defined
in the Rights Agreement) or to any Person who subsequently becomes such a
Person and any purported transfer of Rights to any such Person shall be, and
shall render the Rights purported to be transferred, null and void.
This Right Certificate is subject to all the terms, provisions and
conditions of the Rights Agreement, which terms, provisions and conditions are
hereby incorporated herein by reference and made a part hereof and to which
reference to the Rights Agreement is hereby made for a full description of the
rights, limitations of rights, obligations, duties and immunities hereunder of
the Rights Agent, the Company and the holders of the Right Certificates.
Copies of the Rights Agreement are on file at the above-mentioned office of
the Rights Agent and are also available from the Company upon written request.
This Right Certificate, with or without other Right Certificates,
upon surrender at the principal stock transfer or corporate trust office of
the Rights Agent, may be exchanged for another Right Certificate or Right
Certificates of like tenor and date evidencing Rights entitling the holder to
purchase a like aggregate number and kind of shares as the Rights evidenced by
the Right Certificate or Right Certificates surrendered shall have entitled
such holder to purchase. If this Right Certificate shall be exercised in part,
the holder shall be entitled to receive upon surrender hereof another Right
Certificate or Right Certificates for the number of whole Rights not
exercised.
Subject to the provisions of the Rights Agreement, the Rights
evidenced by this Right Certificate may be redeemed by the Company at its
option at a redemption price (in cash or securities deemed by the Board of
Directors to be equivalent in value) of $.01 per Right at any time prior to
the earliest of (i) such time as a Person becomes an Acquiring Person or (ii)
the Expiration Date.
The Company may, but shall not be required to, issue fractions of
Preferred Shares or distribute certificates which evidence fractions of
Preferred Shares upon the exercise of any Right or Rights evidenced hereby. In
lieu of issuing fractional shares, the Company may elect to make a cash
payment as provided in the Rights Agreement or to issue certificates or
utilize a depository arrangement as provided in the terms of the Preferred
Shares.
No holder of this Right Certificate shall be entitled to vote or
receive dividends or be deemed for any purpose the holder of the Preferred
Shares or of any other securities of the Company which may at any time be
issuable on the exercise hereof, nor shall anything contained in the Rights
Agreement or herein be construed to confer upon the holder hereof, as such,
any of the rights of a shareholder of the Company, including, without
limitation, any right to vote for the election of directors or upon any matter
submitted to shareholders at any meeting thereof, or to give or withhold
consent to any corporate action, or to receive notice of meetings or other
actions affecting shareholders (except as provided in the Rights Agreement),
or to receive dividends or other distributions or subscription rights, or
otherwise, until the Right or Rights evidenced by this Right certificate shall
have been exercised as provided in accordance with the provisions of the
Rights Agreement.
This Right Certificate shall not be valid or obligatory for any
purpose until it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the
Company and its corporate seal.
Dated as of:
THE BRINK'S COMPANY,
by
_______________________________
Name:
Title:
Attest:
by
______________________________
Name:
Title:
Countersigned:
EQUISERVE TRUST COMPANY, N.A., as Rights Agent,
by
______________________________
Authorized Signature
[On Reverse Side of Right Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if
such holder desires to transfer the Rights
represented by this Right Certificate.)
FOR VALUE RECEIVED _____________________________________
hereby sells, assigns and transfers unto________________________________________
--------------------------------------------------------------------------------
(Please print name and address of transferee)
--------------------------------------------------------------------------------
this Right Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint ____________________
Attorney, to transfer the within Right Certificate on the books of the
within-named Company, with full power of substitution.
Dated: ___________________, 200_
--------------------------------------------
Signature
Signature Guaranteed:
CERTIFICATE
The undersigned hereby certifies by checking the appropriate boxes that:
(1) this Right Certificate [ ] is [ ] is not being sold, assigned and
transferred by or on behalf of a Person who is or was an Acquiring Person or
an Affiliate or Associate of any such Acquiring Person (as such terms are
defined in the Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned, it [ ] did
[ ] did not acquire the Rights evidenced by this Right Certificate from any
Person who is or was an Acquiring Person or an Affiliate or Associate of an
Acquiring Person.
Dated: , 200_
------------------------------------
Signature
Signature Guaranteed:
NOTICE
The signature on the foregoing Form of Assignment and Certificate
must correspond to the name as written upon the face of this Right Certificate
in every particular, without alteration or enlargement or any change
whatsoever.
