Exhibit No. 1
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RIGHTS AGREEMENT
DATED AS OF MAY 11, 1999
BETWEEN
COEUR D'XXXXX XXXXX CORPORATION
AND
CHASEMELLON SHAREHOLDER SERVICES L.L.C.
AS RIGHTS AGENT
INDEX
PAGE
Section 1. Certain Definitions 1
Section 2. Appointment of Rights Agent 5
Section 3. Issue of Right Certificates 5
Section 4. Form of Right Certificates 7
Section 5. Countersignature and Registration 7
Section 6. Transfer, Split Up, Combination and Exchange of Right Certificates;
Mutilated, Destroyed, Lost or Stolen Right Certificates 8
Section 7. Exercise of Rights; Purchase Price; Expiration Date of Rights 9
Section 8. Cancellation and Destruction of Right Certificates 10
Section 9. Reservation and Availability of Shares of Preferred Stock 10
Section 10. Preferred Stock Record Date 11
Section 11. Adjustment of Purchase Price, Number of Shares or Number of Rights 12
Section 12. Certificate of Adjusted Purchase Price or Number of Shares 18
Section 13. Consolidation, Merger or Sale or Transfer of Assets or Earning Power 18
Section 14. Fractional Rights and Fractional Shares 20
Section 15. Rights of Action 22
Section 16. Agreement of Right Holders 22
Section 17. Right Certificate Holder Not Deemed a Stockholder 23
Section 18. Concerning the Rights Agent 23
Section 19. Merger or Consolidation or Change of Name of Rights Agent 23
Section 20. Duties of Rights Agent 24
Section 21. Change of Rights Agent 26
Section 22. Issuance of New Right Certificates 27
Section 23. Redemption and Termination 27
Section 24. Exchange 29
Section 25. Notice of Proposed Actions 30
Section 26. Notices 30
Section 27. Supplements and Amendments 31
Section 28. Successors 32
Section 29. Benefits of this Agreement 32
Section 30. Severability 32
Section 31. Governing Law 32
Section 32. Counterparts 32
Section 33. Descriptive Headings 32
EXHIBIT A - Form of Certificate of Designation A-1
EXHIBIT B - Form of Right Certificate B-1
EXHIBIT C - Form of Summary of Preferred Stock Purchase Rights C-1
RIGHTS AGREEMENT
This Agreement, dated as of May 11, 1999, is entered into between COEUR
D'XXXXX XXXXX CORPORATION., an Idaho corporation (the "Company"), and
CHASEMELLON SHAREHOLDER SERVICES L.L.C., a New Jersey limited liability
company, as Rights Agent (the "Rights Agent").
W I T N E S S E T H
WHEREAS, on May 11, 1999, the Board of Directors of the Company
authorized and declared a dividend distribution of one right (hereinafter
referred to as a "Right") for each share of Common Stock, $1.00 par value per
share, of the Company outstanding at the close of business on May 25, 1999
(the "Record Date") (other than shares of such Common Stock held in the
Company's treasury on such date) and has authorized the issuance of one Right
in respect of each share of Common Stock of the Company issued between the
Record Date (whether originally issued or issued from the Company's treasury)
and the Distribution Date (as such term is defined in Section 3 hereof), each
Right representing the right to purchase one one-hundredth of a share of
Series B Junior Preferred Stock of the Company having the rights, powers and
preferences set forth in the form of Certificate of Designation attached
hereto as Exhibit A, upon the terms and subject to the conditions hereinafter
set forth (the "Rights");
WHEREAS, the Company desires to appoint the Rights Agent to act as
provided herein, and the Rights Agent is willing to so act;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
SECTION 1. CERTAIN DEFINITIONS. For purposes of this Agreement, the
following terms have the meanings indicated:
(a) "Acquiring Person" shall mean any Person (as hereinafter defined)
who or which, together with all Affiliates (as hereinafter defined) and
Associates (as hereinafter defined) of such Person, without the prior written
approval of a majority of the Board of Directors, shall be the Beneficial
Owner (as hereinafter defined) of securities of the Company constituting 20%
or more of the Voting Power (as hereinafter defined) of the Company or was
such a Beneficial Owner at any time after the date hereof, whether or not such
Person continues to be the Beneficial Owner of securities representing 20% or
more of the Voting Power of the Company, but shall not include the Company,
any Subsidiary of the Company, any employee benefit plan of the Company or any
Subsidiary of the Company, any entity holding securities of the Company to the
extent organized, appointed or established by the Company or any Subsidiary of
the Company for or pursuant to the terms of any such employee benefit plan.
Notwithstanding the foregoing, no Person shall become an "Acquiring Person" as
the result of (i) an acquisition of Common Stock by means of shares issued
directly by the Company which increases the proportionate Voting Power of such
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securities beneficially owned by such Person to 20% or more of the Voting
Power, where such acquisition is approved by a majority of the Board of
Directors; provided, however, that such Person was not an Acquiring Person
prior to such acquisition of shares from the Company; (ii) an acquisition of
voting securities of the Company by the Company which, by reducing the amount
of such securities outstanding, increases the proportionate Voting Power of
such securities beneficially owned by such Person to 20% or more of the Voting
Power; provided, however, that if a Person becomes the Beneficial Owner of
securities constituting 20% or more of the Voting Power by reason of purchases
by the Company and shall, after such purchases by the Company, become the
Beneficial Owner of any additional voting securities of the Company (other
than pursuant to a stock dividend, stock split, capitalization or similar
transaction that does not affect the percentage of voting securities
beneficially owned by such person), then such Person shall be deemed to be an
Acquiring Person. Notwithstanding the foregoing, if a majority of the Board of
Directors then in office determines in good faith that a Person who would
otherwise be an "Acquiring Person," as defined pursuant to this Section 1(a),
has become such inadvertently, and such Person divests as promptly as
practicable a sufficient number of shares of voting securities of the Company
so that such Person would no longer be an Acquiring Person, then such Person
shall not be deemed to be an "Acquiring Person" for purposes of this
Agreement.
(b) "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule l2b-2 of the General Rules and Regulations
under the Exchange Act, as in effect on the date hereof.
(c) A person shall be deemed the "Beneficial Owner" of, and shall be
deemed to "beneficially own," any securities:
(i) which such Person or any of such Person's Affiliates or
Associates beneficially owns, directly or indirectly;
(ii) which such Person or any of such Person's Affiliates or
Associates has (A) the right to acquire (whether such right is exercisable
immediately or only after the passage of time) pursuant to any agreement,
arrangement or understanding (other than customary agreements with and between
underwriters and selling group members with respect to a bona fide public
offering of securities), or upon the exercise of conversion rights, exchange
rights, rights (other than these Rights), warrants or options, or otherwise,
provided, however, that a Person shall not be deemed the "Beneficial Owner" of
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 payment or exchange; or (B) the
right to vote pursuant to any agreement, arrangement or understanding,
provided, however, that a Person shall not be deemed the "Beneficial Owner" of
any security under this clause (B) if the agreement, arrangement or
understanding to vote such securities (1) arises solely from a revocable proxy
or consent given in response to a public proxy or consent solicitation made
pursuant to, and in accordance with, the applicable rules and regulations of
the Exchange Act and (2) is not also then reportable by such person on
Schedule 13D under the Exchange Act (or any comparable or successor report);
or
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(iii) which are beneficially owned, directly or indirectly, by any
other Person with which such Person or any of such Person's Affiliates or
Associates has any agreement, arrangement or understanding (other than
customary agreements with and between underwriters and selling group members
with respect to a bona fide public offering of securities) for the purpose of
acquiring, holding, voting (except pursuant to a revocable proxy or consent as
described in clause (B) of subparagraph (ii) of this paragraph (c)) or
disposing of any securities of the Company.
(d) "Business Day" shall mean any day other than a Saturday, Sunday,
or a day on which banking institutions in both the States of Idaho and New
York are authorized or obligated by law or executive order to close.
(e) "Close of Business" on any given date shall mean 5:00 P.M., Coeur
d'Alene, Idaho time, on such date; provided, however, that if such date is not
a Business Day it shall mean 5:00 P.M., Coeur d'Alene, Idaho time, on the next
succeeding Business Day.
(f) "Common Stock" shall mean the Common Stock, $1.00 par value per
share, of the Company, except that "Common Stock" when used with reference to
any Person other than the Company shall mean the capital stock with the
greatest Voting Power of such Person or the equity securities or other equity
interest having power to control or direct the management of such Person or,
if such Person is a Subsidiary (as hereinafter defined) of another Person, of
the Person which ultimately controls such first-mentioned Person and which has
issued and outstanding such capital stock, equity securities or equity
interests.
(g) "Common Stock Equivalent" shall have the meaning set forth in
Section 11(c) hereof.
(h) "Current Market Price" shall have the meaning set forth in Section
11(f) hereof.
(i) "Distribution Date" shall have the meaning defined in Section 3
hereof.
(j) "Equivalent Preferred Stock" shall have the meaning set forth in
Section 11(d) hereof.
(k) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
(l) "Exchange Ratio" shall have the meaning set forth in Section 24(a)
hereof.
(m) "Expiration Date" shall have the meaning set forth in Section 7(a)
hereof.
(n) "Final Expiration Date" shall have the meaning set forth in
Section 7(a) hereof.
(o) "Number of Adjustment Shares" shall have the meaning set forth in
Section 11(b) hereof.
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(p) "Person" shall mean any individual, firm, corporation,
partnership, limited liability company or other entity, and shall include any
successor (by merger or otherwise) of any such entity.
(q) "Preferred Stock" shall mean the Series B Junior Preferred Stock,
$1.00 par value per share, of the Company.
(r) "Principal Party" shall have the meaning set forth in Section
13(b) hereof.
(s) "Purchase Price" shall have the meaning defined in Section 4
hereof.
(t) "Record Date" shall have the meaning set forth in the first
WHEREAS clause at the beginning of the Agreement.
(u) "Redemption Price" shall have the meaning set forth in Section
23(a) hereof.
(v) "Registrar" shall have the meaning set forth in Section 5(a)
hereof.
(w) "Right" or "Rights" shall have the meaning set forth in the first
WHEREAS clause at the beginning of the Agreement.
(x) "Right Certificate" shall have the meaning set forth in Section
3(a) hereof.
(y) "Securities Act" shall have the meaning set forth in Section 9(c)
hereof.
(z) "Security" shall have the meaning set forth in Section 11(f)
hereof.
(aa) "Stock Acquisition Date" shall mean the earlier of (i) the first
date of public announcement by the Company or an Acquiring Person that an
Acquiring Person has become such, or (ii) the date on which the Company first
has notice, direct or indirect, or otherwise determines that a Person has
become an Acquiring Person.
(bb) "Subsidiary" shall mean any corporation or other entity of which
the securities or other ownership interests having ordinary Voting Power, in
the absence of contingencies, to elect a majority of the board of directors or
other persons performing similar functions are at the time directly or
indirectly owned by another corporation or other entity and shall include
Subsidiaries of Subsidiaries, except that "Subsidiary" when used with
reference to the Company shall mean any corporation or other entity of which
either a majority of the Voting Power of the voting equity securities or a
majority of the equity interests is owned, directly or indirectly, by the
Company.
(cc) "Summary of Rights" shall have the meaning set forth in Section
3(b) hereof.
(dd) "Trading Day" shall have the meaning set forth in Section 11(f)
hereof.
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(ee) "Voting Power" shall mean the Voting Power of all securities of a
Person then outstanding generally entitled to vote for the election of
directors of the Person (or, where appropriate, for the election of persons
performing similar functions).
SECTION 2. APPOINTMENT OF RIGHTS AGENT.
The Company hereby appoints the Rights Agent to act as agent for the
Company in accordance with the terms and conditions hereof, and the Rights
Agent hereby accepts such appointment. The Company may from time to time
appoint such Co-Rights Agents as it may deem necessary or desirable. 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. The Rights Agent shall have no duty to supervise, and in no event
shall 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) the Close of Business on the tenth
Business Day after the Stock Acquisition Date or (ii) the Close of Business on
the tenth business day (or such later date as may be determined by action of a
majority of the Board of Directors prior to such time as any Person becomes an
Acquiring Person) after the date of the commencement of, or first public
announcement of the intent of any Person (other than the Company, any
Subsidiary of the Company, any employee benefit plan of the Company or of any
Subsidiary of the Company, or any entity holding securities of the Company to
the extent organized, appointed or established by the Company or any
Subsidiary of the Company for or pursuant to the terms of any such employee
benefit plan) to commence (which intention to commence remains in effect for
five Business Days after such announcement), without the prior written
approval of a majority of the Board of Directors, a tender or exchange offer
which would result in any Person becoming the Beneficial Owner of securities
representing 20% or more of the Voting Power of the Company (including any
such date which is after the date of this Agreement and prior to the issuance
of the Rights; the earlier of such dates being herein referred to as the
"Distribution Date"): (x) the Rights will be evidenced (subject to the
provisions of paragraph (b) of this Section 3) by the certificates for the
Common Stock registered in the names of the holders of the Common Stock (which
certificates for Common Stock shall be deemed also to be Right Certificates)
and not by separate Right Certificates, as more fully set forth below, and (y)
the Rights (and the right to receive certificates therefor) will be
transferable only in connection with the transfer of the underlying shares of
Common Stock, as more fully set forth below. As soon as practicable after the
Company has notified the Rights Agent of the occurrence of the Distribution
Date, the Company shall prepare and execute, and the Rights Agent shall
countersign and send, once provided with all necessary information at the
expense of the Company, by first-class, insured, postage prepaid mail, to each
record holder of the Common Stock as of the Close of Business on the
Distribution Date, at the address of such holder shown on the records of the
Company, a right certificate, in substantially the form of Exhibit B hereto
(the "Right Certificate"), evidencing one Right for each share of Common Stock
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so held. As of and after the Distribution Date, the Rights will be evidenced
solely by such Right Certificates.
(b) On the Record Date or as soon as practicable thereafter, the
Company will send a copy of a Summary of Rights to Purchase Preferred Stock,
in substantially the form of Exhibit C hereto (the "Summary of Rights"), by
first-class postage prepaid mail, to each record holder of the Common Stock as
of the Close of Business on the Record Date, at the address of such holder
shown on the records of the Company. With respect to certificates for the
Common Stock outstanding as of the Record Date until the Distribution Date (or
the earlier redemption, exchange, expiration or termination of the Rights),
the Rights will be evidenced by such certificates for the Common Stock
registered in the names of the holders of the Common Stock and the registered
holders of the Common Stock shall also be registered holders of the associated
Rights. Until the Distribution Date (or the earlier redemption, exchange,
expiration or termination of the Rights), the surrender for transfer of any of
the certificates for the Common Stock outstanding in respect of which Rights
have been issued (with or without a copy of the Summary of Rights attached
thereto) shall also constitute the transfer of the Rights associated with the
Common Stock represented by such certificate.
(c) Certificates for the Common Stock issued after the Record Date but
prior to the earlier of the Distribution Date or the redemption, expiration or
termination of the Rights shall be deemed also to be certificates for Rights
and shall have impressed, printed or written on, or otherwise affixed to them
the following legend:
This certificate also evidences and entitles the holder hereof to
certain Rights as set forth in a Rights Agreement between Coeur d'Xxxxx
Xxxxx Corporation (the "Company") and ChaseMellon Shareholder Services
L.L.C., as the Rights Agent, the terms of which are incorporated herein
by reference and a copy of which is on file at the principal executive
offices of the Company. 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 Company will
mail to the holder of this certificate a copy of the Rights Agreement
without charge promptly following receipt of a written request therefor.
Under certain circumstances, Rights beneficially owned by Acquiring
Persons (as defined in the Rights Agreement) and any subsequent holder
of such Rights, may become null and void and no longer transferable.
With respect to such certificates containing the foregoing legend, until
the Distribution Date (or the earlier redemption, exchange, expiration or
termination of the Rights), the Rights associated with the Common Stock
represented by such certificates shall be evidenced by such certificates
alone, and the surrender for transfer of any of such certificates shall also
constitute the transfer of the Rights associated with the Common Stock
represented by such certificates.
In the event that the Company purchases or acquires any Common Stock
after the Record Date but prior to the Distribution Date, any Rights
associated with such Common Stock shall be deemed canceled and retired so that
the Company shall not be entitled to exercise any Rights associated with the
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Common Stock which are no longer outstanding. Upon reissuance of such Common
Stock by the Company prior to the Distribution Date (or earlier redemption,
exchange, expiration or termination of the Rights), the Rights shall again
attach to such Common Stock as set forth in this Section 3(c).
SECTION 4. FORM OF RIGHT CERTIFICATES.
(a) The Right Certificates (and the forms of election to purchase
shares and of assignment to be printed on the reverse thereof) shall be in
substantially the same form as Exhibit B hereto and may have such marks of
identification or designation and such legends, summaries or endorsements
printed thereon as the Company may deem appropriate, which do not affect the
duties or responsibilities of the Rights Agent and as are not inconsistent
with the provisions of this Agreement, or as may be required to comply with
any applicable law, rule or regulation 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 customary usage. Subject to the provisions of Section 11 and
Section 22 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 one one-hundredths of a share of Preferred Stock as
shall be set forth therein at the price per one one-hundredth of a share as
set forth therein (the "Purchase Price"), but the number of such shares and
the Purchase Price shall be and remain subject to adjustment as provided in
Sections 11 and 13 hereof.
(b) Any Right Certificate issued pursuant to Section 3(a) hereof that
represents Rights as to which an Acquiring Person or any Associate or
Affiliate thereof is the Beneficial Owner and any Right Certificate issued at
any time upon the transfer of any Rights to an Acquiring Person or any
Associate or Affiliate thereof or to any nominee of such Acquiring Person,
Associate or Affiliate, and any Right Certificate issued pursuant to Section 6
hereof, Section 11 hereof or Section 22 hereof upon transfer, exchange,
replacement or adjustment of any other Right Certificate referred to in this
sentence, shall contain (to the extent feasible) the following legend:
The Rights represented by this Right Certificate were issued to a Person
who was an Acquiring Person or an Affiliate or an Associate of an
Acquiring Person. This Right Certificate and the Rights represented
hereby may become null and void in the circumstances specified in
Section 7(e) of the Rights Agreement.
The failure to print the foregoing legend on any such Right Certificate or any
defect therein shall not affect in any manner whatsoever the application or
interpretation of the provisions of Section 7(e) hereof.
SECTION 5. COUNTERSIGNATURE AND REGISTRATION.
(a) The Right Certificates shall be executed on behalf of the Company
by its President or any Vice President, either manually or by facsimile
signature, and shall have affixed thereto the Company's seal or a facsimile
thereof which shall be attested by the Secretary or an Assistant Secretary of
the Company, either manually or by facsimile signature. The Right Certificates
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shall be manually countersigned by the Rights Agent and shall not be valid for
any purpose unless so countersigned. In case any officer of the Company whose
manual or facsimile signature is affixed to the Right Certificates shall cease
to be such officer of the Company before countersignature by the Rights Agent
and issuance and delivery by the Company, such Right Certificates,
nevertheless, may be countersigned by the Rights Agent, issued and delivered
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. 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.
(b) Following the Distribution Date and receipt by the Rights Agent of
all necessary information, the Rights Agent will keep or cause to be kept,
books for registration and transfer of the Right Certificates issued
hereunder. Such books shall show the names and addresses of the respective
holders of the Right Certificates, the number of Rights evidenced on its face
by each of the Right Certificates, 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.
Subject to the provisions of Section 14 hereof, at any time after the
Close of Business on the Distribution Date, and at or prior to the Close of
Business on the Expiration Date (as such term is defined in Section 7(a)
hereof), any Right Certificate or Certificates (other than Right Certificates
representing Rights that have become void pursuant to Section 7(e) hereof) may
be transferred, split up, combined or exchanged for another Right Certificate
or Right Certificates, entitling the registered holder to purchase a like
number of shares of Preferred Stock as the Right Certificate or Right
Certificates surrendered then entitled such holder to purchase. Any registered
holder desiring to transfer, split up, combine or exchange any Right
Certificate shall make such request in writing delivered to the Rights Agent,
and shall surrender the Right Certificate or Right Certificates to be
transferred, split up, combined or exchanged at the principal office of the
Rights Agent. Thereupon, the Rights Agent shall countersign and deliver to the
Person entitled thereto a Right Certificate or Rights Certificates, as the
case may be, as so requested. The Company may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer, split up, combination or exchange of Right
Certificates.
Upon receipt by the Company and the Rights Agent of evidence reasonably
satisfactory to them of the loss, theft, destruction or mutilation of a Right
Certificate, and, in case of loss, theft or destruction, of indemnity or
security reasonably satisfactory to the Company and the Rights Agent, and
reimbursement to the Company and the Rights Agent of all reasonable expenses
incidental thereto, and upon surrender to the Rights Agent and cancellation of
the Right Certificate if mutilated, the Company will make and deliver a new
Right Certificate of like tenor to the Rights Agent for countersignature and
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delivery to the registered owner in lieu of the Right Certificate so lost,
stolen, destroyed or mutilated.
SECTION 7. EXERCISE OF RIGHTS; PURCHASE PRICE; EXPIRATION DATE OF
RIGHTS.
(a) 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
designated for such purpose together with payment of the Purchase Price for
each one one-hundredth of a share of Preferred Stock as to which the Rights
are exercised, at or prior to the Close of Business on the earlier of (i) May
24, 2009 (the "Final Expiration Date"), (ii) the time at which the Rights are
redeemed as provided in Section 23 hereof, or (iii) the time at which the
Rights are exchanged as provided in Section 24 hereof (such earlier date being
herein referred to as the "Expiration Date").
(b) The Purchase Price for each one one-hundredth of a share of
Preferred Stock pursuant to the exercise of a Right shall initially be
$100.00, subject to adjustment from time to time as provided in Sections 11
and 13 hereof, and shall be payable in lawful money of the United States of
America in accordance with paragraph (c) below.
(c) Upon receipt of a Right Certificate, with the form of election to
purchase duly and properly executed, accompanied by payment of the Purchase
Price for each one one-hundredth of a share of Preferred Stock to be purchased
and an amount equal to any applicable tax or charge required to be paid by the
holder of the Rights pursuant hereto in accordance with Section 9 hereof in
cash, or by certified check or money order payable to the order of the
Company, the Rights Agent shall, subject to Section 20(k) hereof, thereupon
promptly (i) either (A) requisition from any transfer agent of the shares of
Preferred Stock (or make available, if the Rights Agent is the transfer
agent), certificates for the number of shares of Preferred Stock to be
purchased and the Company hereby irrevocably authorizes its transfer agent to
comply with all such requests, or (B) if the Company, in its sole discretion,
shall have elected to deposit the shares of Preferred Stock issuable upon
exercise of the Rights hereunder into a depositary, requisition from the
depositary agent depositary receipts representing such number of one
one-hundredths of a share of Preferred Stock as are to be purchased (in which
case certificates for the shares of Preferred Stock represented by such
receipts shall be deposited by the transfer agent with the depositary agent)
and the Company hereby irrevocably authorizes the depositary 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 14 hereof, (iii) promptly after receipt of such
certificates or depositary receipts cause the same to be delivered to or upon
the order of the registered holder of such Right Certificate, registered in
such name or names as may be designated by such holder, and (iv) when
appropriate, after receipt, promptly deliver such cash in lieu of issuance of
fractional shares to or upon the order of the registered holder of such Right
Certificate. The Rights Agent shall have no duty or obligation under this
Section unless and until it is satisfied that all such taxes and/or charges
have been paid.
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(d) In case the registered holder of any Right Certificate shall
exercise less than all of the Rights evidenced thereby, a new Right
Certificate evidencing Rights equivalent to the Rights remaining unexercised
shall be issued by the Rights Agent to the registered holder of such Right
Certificate or to his duly authorized assigns, subject to the provisions of
Section 14 hereof.
(e) Notwithstanding anything in this Agreement to the contrary, upon
the occurrence of any of the events listed in Section 11(b) or in Section
13(a) hereof, any Rights of which an Acquiring Person or any Associate or
Affiliate of the Acquiring Person was the Beneficial Owner at any time on or
after the earlier of the Stock Acquisition Date or the Distribution Date shall
become null and void with respect to the rights provided under Section 11(b)
and Section 13(a) hereof and any holder of such Rights shall thereafter have
no right to exercise such rights under the provisions of Section 11(b) and
Section 13(a).
(f) Notwithstanding anything in this Agreement to the contrary,
neither the Rights Agent nor the Company shall be obligated to undertake any
action with respect to a registered holder upon the occurrence of any
purported exercise as set forth in this Section 7 unless the certification
contained in the appropriate form of election to purchase set forth on the
reverse side of the Right Certificate surrendered for such exercise shall have
been properly completed and duly executed by the registered holder thereof and
the Company shall have been provided with such additional evidence of the
identity of the Beneficial Owner (or former Beneficial Owner) of such Rights
or Affiliates or Associates of such Beneficial Owner (or former Beneficial
Owner) as the Company or the Rights Agent shall reasonably request.
SECTION 8. CANCELLATION AND DESTRUCTION OF RIGHT CERTIFICATES.
All Right Certificates surrendered for the purpose of exercise,
transfer, split up, combination or exchange shall, if surrendered to the
Company or to any of its agents, be delivered to the Rights Agent in canceled
form, or, if surrendered to the Rights Agent in uncanceled form, shall be
canceled by the Rights Agent, and no Right Certificates shall be issued in
lieu thereof except as expressly permitted by any of the provisions of this
Rights Agreement. The Company shall deliver to the Rights Agent for
cancellation and retirement, and the Rights Agent shall so cancel and retire,
any other Right Certificate purchased or acquired by the Company otherwise
than upon the exercise thereof. The Rights Agent shall deliver all 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 SHARES OF PREFERRED STOCK.
(a) The Company covenants and agrees that it will cause to be reserved
and kept available out of its authorized and unissued shares of Preferred
Stock or its authorized and issued shares of Preferred Stock held in treasury,
the number of shares of Preferred Stock that will be sufficient to permit the
exercise in full of all outstanding Rights and, after the occurrence of an
event specified in Section 11(b) hereof, shall so reserve and keep available a
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sufficient number of shares of Preferred Stock, Common Stock and/or other
securities which may be required to permit the exercise in full of the Rights
pursuant to this Agreement.
(b) The Company covenants and agrees that it will take all such action
as may be necessary to ensure that all shares of Preferred Stock and/or other
securities delivered upon exercise of Rights shall, at the time of delivery of
the certificates for such shares or other securities (subject to payment of
the Purchase Price), be duly and validly authorized and issued and fully paid
and nonassessable shares or securities.
(c) The Company shall use its best efforts to (i) file, as soon as
practicable following the first occurrence of an event which (with the passage
of the prescribed time periods set forth in Section 3(a) hereof) would
establish the Distribution Date, a registration statement on an appropriate
form under the Securities Act of 1933, as amended (the "Securities Act"), with
respect to the securities purchasable upon exercise of the Rights, (ii) cause
such registration statement to become effective as soon as practicable after
such filing, and (iii) cause such registration statement to remain effective
(with a prospectus at all times meeting the requirements of the Securities
Act) until the date of the expiration of the Rights. The Company will also
take such action as may be appropriate under the Blue Sky laws of the various
states.
(d) The Company further covenants and agrees that it will pay when due
and payable any and all transfer taxes and charges which may be payable in
respect of the issuance or delivery of the Right Certificates or of any shares
of Preferred Stock and/or other securities upon the exercise of Rights. The
Company shall not, however, be required to pay any tax or charge which may be
payable in respect of any transfer involved in the transfer or delivery of
Right Certificates or the issuance or delivery of certificates or depositary
receipts for Preferred Stock and/or other securities in a name other than that
of the registered holder of the Right Certificate evidencing Rights
surrendered for exercise, nor shall the Company be required to issue or
deliver any certificates or depositary receipts for shares of Preferred Stock
and/or other securities upon the exercise of any Rights until any such tax or
charge shall have been paid (any such tax or charge being payable by the
holder of such Right Certificate at the time of surrender) or until the
Company has established to its satisfaction that no such tax or charge is due.
SECTION 10. PREFERRED STOCK RECORD DATE.
Each Person (other than the Company) in whose name any certificate for
shares of Preferred Stock (or other securities) is issued upon the exercise of
Rights shall for all purposes be deemed to have become the holder of record of
the Preferred Stock (or other securities) 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 or charges) was made; provided, however,
that if the date of such surrender and payment is a date upon which the
Preferred Stock (or other securities) 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 Stock (or other securities) transfer books of the
11
Company are open. Prior to the exercise of the Rights evidenced thereby, the
holder as a Right Certificate shall not be entitled to any rights of a
stockholder of the Company with respect to shares for which the Rights shall
be exercisable, including, without limitation, the right to vote, to receive
dividends or other distributions or to exercise any preemptive rights, and
shall not be entitled to receive any notice of any proceedings of the Company,
except as provided herein.
SECTION 11. ADJUSTMENT OF PURCHASE PRICE, NUMBER OF SHARES OR NUMBER OF
RIGHTS.
The Purchase Price, the number of shares covered by each Right and the
number of Rights outstanding are subject to adjustment from time to time as
provided in this Section 11.
(a) In the event the Company shall at any time after the date of this
Agreement (ii) declare a dividend on the Preferred Stock payable in shares of
Preferred Stock, (ii) subdivide the outstanding Preferred Stock, (iii) combine
the outstanding Preferred Stock into a smaller number of shares, or (iv) issue
any shares of its capital stock in a reclassification of the Preferred Stock
(including any such reclassification in connection with a consolidation or
merger in which the Company is the continuing or surviving corporation),
except as otherwise provided in this Section 11, the Purchase Price in effect
at the time of the record date for such dividend or the time of the effective
date of such subdivision, combination or reclassification, and the number and
kind of shares of capital stock, including Preferred Stock, issuable upon
exercise of a Right, shall be proportionately adjusted so that the holder of
any Right exercised after such time, upon payment of the aggregate Purchase
Price such holder would have to pay to exercise such Right prior to such time,
shall be entitled to receive the aggregate number and kind of shares of
capital stock, including Preferred Stock, which, if such Right had been
exercised immediately prior to such date and at a time when the Preferred
Stock transfer books of the Company were open, such holder would have owned
upon such exercise and been entitled to receive by virtue of such dividend,
subdivision, combination or reclassification.
(b) In the event any Person shall become an Acquiring Person, then
proper provision shall be made so that each holder of a Right, subject to
Section 7(e) and except as provided below, shall after the later of the
occurrence of such event and the effective date of an appropriate registration
statement pursuant to Section 9 hereof, have a right to receive, upon exercise
thereof at the then current Purchase Price in accordance with the terms of
this Agreement, in lieu of shares of Preferred Stock, such number of shares of
Common Stock of the Company as shall equal the result obtained by (x)
multiplying the then current Purchase Price by the number of one
one-hundredths of a share of Preferred Stock for which a Right is then
exercisable and dividing that product by (y) 50% of the Current Market Price
per one share of Common Stock (determined pursuant to Section 11(f) hereof on
the date of the occurrence of any one of the events listed above in this
subparagraph (b)) (such number of shares being referred to as the "Number of
Adjustment Shares").
(c) In the event that there shall not be sufficient shares in treasury
or authorized but unissued shares of Common Stock to permit the exercise in
full of the Rights in accordance with the foregoing Section 11(b) and the
12
Rights become so exercisable, notwithstanding any other provision of this
Agreement, to the extent necessary and permitted by applicable law and any
agreements in effect on the date hereof to which the Company is a party, each
Right shall thereafter represent the right to receive, upon exercise thereof
at the then current Purchase Price in accordance with the terms of this
Agreement, a number of shares, or unit of shares, of (x) Common Stock, and (y)
any class or series of preferred stock (or other equity securities) of the
Company, including, but not limited to Preferred Stock, equal in the aggregate
to the Number of Adjustment Shares where the Board of Directors shall have in
good faith deemed such shares or units, other than the shares of Common Stock,
to have at least the same value and voting rights as the Common Stock (a
"Common Stock Equivalent"); provided however, if there are unavailable
sufficient shares (or fractions of shares) of Common Stock and/or Common Stock
Equivalents, then the Company shall take all such action as may be necessary
to authorize additional shares of Common Stock or Common Stock Equivalents for
issuance upon exercise of the Rights, including the calling of a meeting of
stockholders; and provided, further, that if the Company is unable to cause
sufficient shares of Common Stock and/or Common Stock Equivalents to be
available for issuance upon exercise in full of the Rights, then the Company,
to the extent necessary and permitted by applicable law, and any agreements or
instruments in effect on the date thereof to which it is a party, shall make
provision to pay an amount in cash equal to twice the Purchase Price (as
adjusted pursuant to this Section 11), in lieu of issuing shares of Common
Stock and/or Common Stock Equivalents. To the extent that the Company
determines that some action needs to be taken pursuant to this Section 11(c),
a majority of the Board of Directors may suspend the exercisability of the
Rights for a period of up to sixty (60) days following the date on which the
event described in Section 11(b) hereof shall have occurred, in order to
decide the appropriate form of distribution to be made pursuant to this
Section 11(c) and to determine the value thereof. In the event of any such
suspension, the Company shall issue a public announcement stating that the
exercisability of the Rights has been temporarily suspended. The Board of
Directors may, but shall not be required to, establish procedures to allocate
the right to receive Common Stock and Common Stock Equivalents upon exercise
of the Rights among holders of Rights, which such allocation may be, but is
not required to be, pro rata.
(d) If the Company shall fix a record date for the issuance of rights
or warrants to all holders of Preferred Stock entitling them (for a period
expiring within 90 calendar days after such record date) to subscribe for or
purchase Preferred Stock (or securities having the same or more favorable
rights, privileges and preferences as the Preferred Stock ("Equivalent
Preferred Stock")) or securities convertible into Preferred Stock or
Equivalent Preferred Stock, at a subscription or purchase price per share of
Preferred Stock or per share of Equivalent Preferred Stock or having a
conversion price per share, as the case may be, less than the Current Market
Price per share of Preferred Stock (as defined in Section 11(f) hereof) on
such record date, the Purchase Price to be in effect after such record date
shall be determined by multiplying the Purchase Price in effect immediately
prior to such date by a fraction, the numerator of which shall be the number
of shares of Preferred Stock outstanding on such record date plus the number
of shares of Preferred Stock which the aggregate subscription or purchase
price of the total number of shares of Preferred Stock or Equivalent Preferred
Stock to be offered for subscription or purchase (and/or the aggregate initial
conversion price of the convertible securities so to be offered for
13
subscription or purchase) would purchase at such Current Market Price, and the
denominator of which shall be the number of shares of Preferred Stock
outstanding on such record date plus the number of additional shares of
Preferred Stock and/or Equivalent Preferred Stock to be offered for
subscription or purchase (or into which the convertible securities so to be
offered are initially convertible). In case such subscription or purchase
price (and/or the conversion price of convertible securities) 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 a majority
of the Board of Directors, whose determination shall be described in a
statement filed with the Rights Agent. Shares of Preferred Stock owned by or
held for the account of the Company shall not be deemed outstanding for the
purpose of any such computation. Such adjustment shall be made successively
whenever such a record date is fixed; and in the event that such rights or
warrants are not so issued, the Purchase Price shall be adjusted to be the
Purchase Price which would then be in effect if such record date had not been
fixed.
(e) If the Company shall fix a record date for the making of a
distribution to all holders of Preferred Stock (including any such
distribution made in connection with a consolidation or merger in which the
Company is the continuing or surviving corporation) of evidences of
indebtedness, cash (other than a regular periodic cash dividend out of
earnings or retained earnings of the Company), assets (other than a dividend
payable in Preferred Stock, but including any dividend payable in stock other
than Preferred Stock) or convertible securities, subscription rights or
warrants (excluding those referred to in Section 11(d) hereof), the Purchase
Price to be in effect after such record date shall be determined by
multiplying the Purchase Price in effect immediately prior to such record date
by a fraction, the numerator of which shall be the Current Market Price for
one share of Preferred Stock (as defined in Section 11(f) hereof) on such
record date less the fair market value (as determined in good faith by a
majority of the Board of Directors, whose determination shall be described in
a statement filed with the Rights Agent) of the portion of the assets or
evidences of indebtedness so to be distributed or of such convertible
securities, subscription rights or warrants applicable to one share of
Preferred Stock, and the denominator of which shall be such Current Market
Price for one share of Preferred Stock. Such adjustments shall be made
successively whenever such a record date is fixed; and in the event that such
distribution is not so made, the Purchase Price shall again be adjusted to be
the Purchase Price which would then be in effect if such record date had not
been fixed.
(f) (i) For the purpose of any computation hereunder, the "Current
Market Price" of any security (a "Security" for purposes of this Section
11(f)(i)) on any date shall be deemed to be the average of the daily closing
prices per share of such Security for the 30 consecutive Trading Days (as
hereinafter defined) immediately prior to, but not including, such date;
provided, however, that in the event that the Current Market Price per share
of such Security is determined during a period following the announcement by
the issuer of such Security of (A) a dividend or distribution on such Security
payable in shares of such Security or securities convertible into shares of
such Security or (B) any subdivision, combination or reclassification of such
Security, and prior to the expiration of 30 Trading Days after, but not
including, the ex-dividend date for such dividend or distribution or the
record date for such subdivision, combination or reclassification, then, and
14
in each such case, the "Current Market Price" shall be appropriately adjusted
to reflect the Current Market Price per share equivalent of such Security. The
closing price for each day shall be the last sale price, regular way, or, in
case no such sale takes place on such day, the average of the closing bid and
asked prices, regular way, in either case as reported in the principal
consolidated transaction reporting system with respect to securities listed or
admitted to trading on the New York Stock Exchange or, if the Security is not
listed or admitted to trading on the New York Stock Exchange, as reported in
the principal consolidated transaction reporting system with respect to
securities listed on the principal national securities exchange on which the
Security is listed or admitted to trading or, if the Security is not listed or
admitted to trading on any national securities exchange, the last transaction
price as reported by the NASDAQ National Market or, if not so reported, the
average of the high bid and low asked prices in the over-the-counter market,
as reported by the NASDAQ Stock Market or such other system then in use, or,
if on any such date the Security is not reported by any such organization, the
average of the closing bid and asked prices as furnished by a professional
market maker in the Security selected by a majority of the Board of Directors.
If on any such date no market maker is making a market in the Security, the
fair value of such Security on such date as determined in good faith by a
majority of the Board of Directors shall be used. The term "Trading Day" shall
mean a day on which the principal national securities exchange on which the
Security is listed or admitted to trading is open for the transaction of
business or, if the Security is not listed or admitted to trading on any
national securities exchange, a Business Day. If the Security is not publicly
held or not so listed or traded, "Current Market Price" shall mean the fair
value as determined in good faith by a majority of the Board of Directors,
whose determination shall be described in a statement filed with the Rights
Agent and shall be conclusive for all purposes.
(ii) For the purposes of any computation hereunder, the "Current
Market Price" per share (or one one-hundredth of a share) of Preferred Stock
shall be determined in the same manner as set forth above for the Common Stock
in clause (i) of this Section 11(f) (other than the last sentence thereof). If
the Current Market Price per share (or one one-hundredth of a share) of
Preferred Stock cannot be determined in the manner provided above or if the
Preferred Stock is not publicly held or listed or traded in a manner described
in clause (i) of this Section 11(f), the "Current Market Price" per share of
Preferred Stock shall be conclusively deemed to be an amount equal to 100 (as
such number may be appropriately adjusted for such events as stock splits,
stock dividends and recapitalizations with respect to the Common Stock
occurring after the date of this Agreement) multiplied by the Current Market
Price per share of the Common Stock and the "Current Market Price" per one
one-hundredth of a share of Preferred Stock shall be equal to the Current
Market Price per share of the Common Stock (as appropriately adjusted). If
neither the Common Stock or the Preferred Stock is publicly held or so listed
or traded, "Current Market Price" per share shall mean the fair value per
share as determined in good faith by the Board of Directors, whose
determination shall be described in a statement filed with the Rights Agent
and shall be conclusive for all purposes.
(g) Anything herein to the contrary notwithstanding, no adjustment in
the Purchase Price shall be required unless such adjustment would require an
increase or decrease of at least 1% in the Purchase Price; provided, however,
15
that any adjustments which by reason of this Section 11(g) are not required to
be made shall be carried forward and taken into account in any subsequent
adjustment. All calculations under this Section 11 shall be made to the
nearest cent or to the nearest ten-thousandth of a share, as the case may be.
Notwithstanding the first sentence of this Section 11(g), any adjustment
required by this Section 11 shall be made no later than the earlier of (i)
three years from the date of the transaction which mandates such adjustment or
(ii) the Expiration Date.
(h) In the event that at any time, as a result of an adjustment made
pursuant to Section 11(a) or (b) hereof, the holder of any Right shall be
entitled to receive upon exercise of such Right any shares of capital stock of
the Company other than shares of Preferred Stock, 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 shares contained in Section
11(a) through (e) hereof, inclusive, and the provisions of Section 7, 9, 10,
13 and 14 hereof with respect to the shares of Preferred Stock shall apply on
like terms to any such other shares.
(i) All Rights originally issued by the Company subsequent to any
adjustment made to the Purchase Price hereunder shall evidence the right to
purchase, at the adjusted Purchase Price, the number of shares of Preferred
Stock or other capital stock of the Company purchasable from time to time
hereunder upon exercise of the Rights, all subject to further adjustment of
the Purchase Price.
(j) Unless the Company shall have exercised its election as provided
in Section 11(k) hereof, upon each adjustment of the Purchase Price as a
result of the calculations made in Section 11(d) and (e) hereof, each Right
outstanding immediately prior to the making of such adjustment shall
thereafter evidence the right to purchase, at the adjusted Purchase Price,
that number of one one-hundredths of a share of Preferred Stock (calculated to
the nearest ten-thousandth) obtained by (i) multiplying (A) the number of one
one-hundredths of a share of Preferred Stock covered by a Right immediately
prior to the adjustment by (B) the Purchase Price in effect immediately prior
to such adjustment of the Purchase Price and (ii) dividing the product so
obtained by the Purchase Price in effect immediately after such adjustment of
the Purchase Price.
(k) The Company may elect on or after the date of any adjustment of
the Purchase Price to adjust the number of Rights, in substitution for any
adjustment in the number of shares of Preferred Stock purchasable upon the
exercise of a Right. Each of the Rights outstanding after such adjustment of
the number of Rights shall be exercisable for the number of one one-hundredths
of a share of Preferred Stock for which such Right was exercisable immediately
prior to such adjustment. Each Right held of record prior to such adjustment
of the number of Rights shall become that number of Rights (calculated to the
nearest ten-thousandth) obtained by dividing the Purchase Price in effect
immediately prior to adjustment of the Purchase Price by the Purchase Price in
effect immediately after adjustment of the Purchase Price. The Company shall
make a public announcement of its election to adjust the number of Rights,
indicating the record date for the adjustment, and, if known at the time, the
amount of the adjustment to be made with prompt notice thereof to the Rights
16
Agent. This record date may be the date on which the Purchase Price is
adjusted or any day thereafter, but, if the Right Certificates have been
issued, shall be at least 10 days later than the date of the public
announcement. If the Right Certificates have been issued, upon each adjustment
of the number of Rights pursuant to this Section 11(k), the Company shall, as
promptly as practicable, cause to be distributed to holders of record of Right
Certificates on such record date Right Certificates evidencing, subject to
Section 14 hereof, the additional Rights to which such holders shall be
entitled as a result of such adjustment, or, at the option of the Company,
shall cause to be distributed to such holders of record in substitution and
replacement for the Right Certificates held by such holders prior to the date
of adjustment, and upon surrender thereof if required by the Company, new
Right Certificates evidencing all the Rights to which such holders shall be
entitled after such adjustment. Right Certificates to be so distributed shall
be issued, executed and countersigned in the manner provided for herein (and
may bear, at the option of the Company, the adjusted Purchase Price) and shall
be registered in the names of the holders of record of Right Certificates on
the record date specified in the public announcement.
(l) Irrespective of any adjustment or change in the Purchase Price or
the number of shares of Preferred Stock issuable upon the exercise of the
Rights, the Right Certificates theretofore and thereafter issued may continue
to express the Purchase Price and the number of shares which were expressed in
the initial Right Certificates issued hereunder.
(m) Before taking any action that would cause an adjustment reducing
the Purchase Price below the then par value, if any, of the shares of Common
Stock or other securities and below one one-hundredth of the then par value,
if any, of the Preferred Stock, issuable upon exercise of the Rights, the
Company shall take any corporate action which may, in the opinion of its
counsel, be necessary in order that the Company may validly and legally issue
fully paid and nonassessable shares of such Preferred Stock, Common Stock or
other securities at such adjusted Purchase Price. If upon any exercise of the
Rights, a holder is to receive a combination of Common Stock and Common Stock
Equivalents, a portion of the consideration paid upon such exercise, equal to
at least the then par value of a share of Common Stock of the Company, shall
be allocated as the payment for each share of Common Stock of the Company so
received.
(n) In any case in which this Section 11 shall require that an
adjustment in the Purchase Price be made effective as of a record date for a
specified event, the Company may elect to defer with prompt notice thereof to
the Rights Agent until the occurrence of such event the issuing to the holder
of any Right exercised after such record date the shares of Preferred Stock
and other capital stock or securities of the Company, if any, issuable upon
such exercise over and above the shares of Preferred Stock and other capital
stock or securities of the Company, if any, issuable upon such exercise on the
basis of the Purchase Price in effect prior to such adjustment; provided,
however, that the Company shall deliver to such holder a due xxxx or other
appropriate instrument evidencing such holder's right to receive such
additional shares upon the occurrence of the event requiring such adjustment.
17
(o) Anything in this Section 11 to the contrary notwithstanding, the
Company shall be entitled to make such reductions in the Purchase Price, in
addition to those adjustments expressly required by this Section 11, as and to
the extent that in their good faith judgment a majority of the Board of
Directors shall determine to be advisable in order that any (i) consolidation
or subdivision of the Preferred Stock, (ii) issuance wholly for cash of any
Preferred Stock at less than the then Current Market Price, (iii) issuance
wholly for cash of Preferred Stock or securities which by their terms are
convertible into or exchangeable for Preferred Stock, (iv) stock dividends or
(v) issuance of rights, options or warrants referred to hereinabove in this
Section 11, hereafter made by the Company to the holders of its Preferred
Stock, shall not be taxable to such stockholders.
(p) The Company covenants and agrees that it shall not, at any time
after the Distribution Date and so long as the Rights have not been redeemed
pursuant to Section 23 hereof or exchanged pursuant to Section 24 hereof, (i)
consolidate with, (ii) merge with or into, or (iii) sell or transfer, in one
or more transactions, assets or earning power aggregating more than 50% of the
assets or earning power of the Company and its Subsidiaries (taken as a whole)
to, any other Person, if at the time of or immediately after such
consolidation, merger or sale there are any rights, warrants or other
instruments or securities outstanding or agreements in effect which would
substantially diminish or otherwise eliminate the benefits intended to be
afforded by the Rights.
(q) The Company covenants and agrees that, after the Stock Acquisition
Date, it will not, except as permitted by Section 23 hereof or Section 24
hereof, take any action the purpose or effect of which is to diminish
substantially or otherwise eliminate the benefits intended to be afforded by
the Rights.
SECTION 12. CERTIFICATE OF ADJUSTED PURCHASE PRICE OR NUMBER OF SHARES.
Whenever an adjustment is made as provided in Sections 11 or 13 hereof,
the Company shall (a) promptly prepare a certificate setting forth such
adjustment, and a brief statement of the facts and computations accounting for
such adjustment, (b) promptly file with the Rights Agent and with each
transfer agent for the Preferred Stock and the Common Stock 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 adjustments
therein contained and shall not be obligated or responsible for calculating
any adjustment nor shall the Rights Agent shall have any duty with respect to
and shall not be deemed to have knowledge of such adjustment unless and until
the Rights Agent shall have received such certificate.
SECTION 13. CONSOLIDATION, MERGER OR SALE OR TRANSFER OF ASSETS OR
EARNING POWER.
(a) In the event that, directly or indirectly, following the
Distribution Date, (x) the Company shall consolidate with, or merge with and
into, any other Person, (y) any Person shall consolidate with or merge with
and into the surviving corporation of such merger and, in connection with such
18
merger, all or part of the Common Stock shall be changed into or exchanged for
stock or other securities of any other Person or cash or any other property,
or (z) the Company shall sell, or otherwise transfer (or one or more of its
Subsidiaries shall sell or otherwise transfer), in one or more transactions,
assets or earning power aggregating 50% or more of the assets or earning power
of the Company and its Subsidiaries (taken as a whole) to any other Person
other than to the Company or one or more of its wholly owned Subsidiaries,
then, and in each such case, proper provision shall be made so that (i) each
holder of a Right, subject to Section 7(e), shall thereafter have the right to
receive, upon the exercise thereof at the then current Purchase Price in
accordance with the terms of this Agreement, in lieu of Preferred Stock, such
number of shares of freely tradable Common Stock of the Principal Party (as
hereinafter defined), free and clear of liens, rights of call or first
refusal, encumbrances or other adverse claims, as shall be equal to the result
obtained by (A) multiplying the then current Purchase Price by the number of
one one-hundredths of a share of Preferred Stock for which a Right is then
exercisable and dividing that product by (B) 50% of the Current Market Price
per share of the Common Stock of such Principal Party (determined in the
manner described in Section 11(f) hereof) on the date of consummation of such
consolidation, merger, sale or transfer; (ii) the Principal Party shall
thereafter be liable for, and shall assume, by virtue of such consolidation,
merger, sale or transfer, all the obligations and duties of the Company
pursuant to this Agreement; (iii) the term "Company" shall thereafter be
deemed to refer to such Principal Party, it being specifically intended that
the provisions of Section 11 hereof, except for the provisions of Section
11(b), shall apply to such Principal Party; and (iv) such Principal Party
shall take such steps (including, but not limited to, the authorization and
reservation of a sufficient number of shares of its Common Stock to permit
exercise of all outstanding Rights in accordance with this Section 13(a)) in
connection with such consummation as may be necessary to assure that the
provisions hereof shall thereafter be applicable, as nearly as reasonably may
be, in relation to the shares of its Common Stock thereafter deliverable upon
the exercise of the Rights.
(b) "Principal Party" shall mean"
(i) in the case of any transaction described in clause (x) or
(y) of the first sentence of Section 13(a) hereof, the Person that is the
issuer of any securities into which shares of Common Stock of the Company are
converted in such merger or consolidation, and if no securities are so issued,
the Person, including the Company, that is the other party to the merger or
consolidation; and
(ii) in the case of any transaction described in clause (z) of
the first sentence of Section 13(a) hereof, the Person that is the party
receiving the greatest portion of the assets or earning power transferred
pursuant to such transaction or transactions; provided, however, that in any
case described in clause (i) or (ii) in this Section 13(b), (x) if the Common
Stock of such Person is not at such time and has not been continuously over
the preceding 12-month period registered under Section 12 of the Exchange Act,
and such Person is a direct or indirect Subsidiary or Affiliate of another
Person, "Principal Party" shall refer to whichever of such Persons is the
issuer of the Common Stock having the greatest market value, and (z) in case
19
such Person is owned, directly or indirectly, by a joint venture formed by two
or more Persons that are not owned, directly or indirectly, by the same
Person, the rules set forth in (x) and (y) above shall apply to each of the
chains of ownership having an interest in such joint venture as if such party
were a "Subsidiary" of both or all of such joint venturers and the Principal
Parties in each such chain shall bear the obligations set forth in this
Section 13 in the same ratio as their direct or indirect interests in such
Person bear to the total of such interest.
(c) The Company shall not consummate any such consolidation, merger,
sale or transfer unless prior thereto the Company and each Principal Party and
each other Person who may become a Principal Party as a result of such
consolidation, merger, sale or transfer shall have executed and delivered to
the Rights Agent a supplemental agreement providing for the terms set forth in
paragraphs (a) and (b) of this Section 13 and further providing that, as soon
as practicable after the date of any consolidation, merger or sale of assets
mentioned in paragraph (a) of this Section 13, the Principal Party will:
(i) prepare and file a registration statement on an appropriate
form under the Securities Act with respect to the Rights and the securities
purchasable upon exercise of the Rights, will use its best efforts to cause
such registration statement to become effective as soon as practicable after
such filing and will use its best efforts to cause such registration statement
to remain effective (with a prospectus at all times meeting the requirements
of the Securities Act) until the Expiration Date;
(ii) use its best efforts to qualify or register the Rights and
the securities purchasable upon exercise of the Rights under the Blue Sky laws
of such jurisdictions as may be necessary or appropriate; and
(iii) will deliver to holders of the Rights historical financial
statements for the Principal Party and each of its Affiliates which comply in
all respects with the requirements for registration on Form 10 under the
Exchange Act.
The provisions of this Section 13 shall similarly apply to successive
mergers or consolidations or sales or other transfers.
SECTION 14. FRACTIONAL RIGHTS AND FRACTIONAL SHARES.
(a) The Company shall not be required to issue fractions of Rights or
to distribute Right Certificates which evidence fractional Rights. In lieu of
such fractional Rights, there shall be paid to the registered holders of the
Right Certificates with regard to which such fractional Rights would otherwise
be issuable, an amount in cash equal to the same fraction of the current
market value of a whole Right. For the purposes of this Section 14(a), the
current market value of a whole Right shall be the closing price of the Rights
for the Trading Day immediately prior to the date on which such fractional
Rights would have been otherwise issuable. The closing price for any day shall
be the last sale price, regular way, or, in case no such sale takes place on
such day, the average of the closing bid and asked prices, regular way, in
either case as reported in the principal consolidated transaction reporting
20
system with respect to securities listed or admitted to trading on the New
York Stock Exchange or, if the Rights are not listed or admitted to trading on
the New York Stock Exchange, as reported in the principal consolidated
transaction reporting system with respect to securities listed on the
principal national securities exchange on which the Rights are listed or
admitted to trading or, if the Rights are not listed or admitted to trading on
any national securities exchange, the last transaction price as reported by
the NASDAQ National Market, or, if not so reported, the average of the high
bid and low asked prices in the over-the-counter market, as reported by the
NASDAQ Stock Market or such other system then in use or, if on any such date
the Rights are not reported by any such organization, the average of the
closing bid and asked prices as furnished by a professional market maker in
the Rights selected by a majority of the Board of Directors. If on any such
date no such market maker is making a market in the Rights, the fair value of
the Rights on such date as determined in good faith by a majority of the Board
of Directors shall be used.
(b) The Company shall not be required to issue fractions of shares of
Preferred Stock (other than fractions which are integral multiples of one
one-hundredth of a share of Preferred Stock) upon exercise of the Rights or to
distribute certificates which evidence fractional shares of Preferred Stock
(other than fractions which are integral multiples of one one-hundredth of a
share of Preferred Stock). Fractions of shares of Preferred Stock in integral
multiples of one one-hundredth of a share of Preferred Stock may, at the
election of the Company, be evidenced by depositary receipts, pursuant to an
appropriate agreement between the Company and a depositary selected by it,
provided that such agreement shall provide that the holders of such depositary
receipts shall have all the rights, privileges and preferences to which they
are entitled as beneficial owners of the shares of Preferred Stock represented
by such depositary receipts. In lieu of fractional shares of Preferred Stock
that are not integral multiples of one one-hundredth of a share of Preferred
Stock, the Company may pay to the registered holders of Right Certificates at
the time such Right Certificates are exercised as herein provided, an amount
in cash equal to the same fraction of the current market value of one
one-hundredth of a share of Preferred Stock. For purposes of this Section
14(b), the current market value of one one-hundredth of a share of Preferred
Stock shall be one one-hundredth of the closing price of a share of Preferred
Stock (as determined pursuant to Section 11(f)(ii) hereof) for the Trading Day
immediately prior to the date of such exercise.
(c) Following the occurrence of one of the transactions or events
specified in Section 11 hereof giving rise to the right to receive Common
Stock, Common Stock Equivalents or other securities (other than Preferred
Stock) upon the exercise of a Right, the Company shall not be required to
issue fractions of shares or units of such Common Stock, Common Stock
Equivalents or other securities upon exercise of the Rights or to distribute
certificates which evidence fractional shares of such Common Stock, Common
Stock Equivalents or other securities. In lieu of fractional shares or units
of such Common Stock, Common Stock Equivalents or other securities, the
Company may 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 a share or unit of such Common
Stock, Common Stock Equivalent or other securities. For purposes of this
Section 14(c), the current market value shall be determined in the manner set
21
forth in Section 11(f)(i) hereof for the Trading Day immediately prior to the
date of such exercise and, if such Common Stock, Common Stock Equivalent or
other securities are not traded, each such share or other unit of Common
Stock, Common Stock Equivalent or other securities shall have the value of one
one-hundredth of a share of Preferred Stock.
(d) Except as otherwise expressly provided in this Section 14, the
holder of a Right by the acceptance of the Rights expressly waives his right
to receive any fractional Rights or any fractional share upon exercise of
Rights.
SECTION 15. RIGHTS OF ACTION.
All rights of action in respect of this Agreement, except for rights of
action given to the Rights Agent under this Agreement, are vested in the
respective registered holders of the Right Certificates (and, prior to the
Distribution Date, the registered holders of Common Stock); and any registered
holder of any Right Certificate (or, prior to the Distribution Date, of the
Common Stock), without the consent of the Rights Agent or of the holder of any
other Right Certificate (or, prior to the Distribution Date, of the Common
Stock), may, on his own behalf and for his own benefit, enforce, and may
institute and maintain any suit, action or proceeding against the Company to
enforce, or otherwise act in respect of, his right to exercise the Rights
evidenced by such Right Certificate in the manner provided in such Right
Certificate and in this Agreement. Without limiting the foregoing or any
remedies available to the holders of Rights, it is specifically acknowledged
that the holders of Rights would not have an adequate remedy at law for any
breach of this Agreement and will be entitled to specific performance of the
obligations under, and injunctive relief against actual or threatened
violations of, the obligations of any Person subject to this Agreement.
Holders of Rights shall be entitled to recover the reasonable costs and
expenses, including attorneys' fees, incurred by them in any action to enforce
the provisions of this Agreement.
SECTION 16. AGREEMENT OF RIGHT HOLDERS.
Every holder of a Right by accepting the same consents and agrees with
the Company and the Rights Agent and with every other holder of a Right that:
(a) prior to the Distribution Date, the Rights will be transferable
only in connection with the transfer of Common Stock;
(b) after the Distribution Date, the Right Certificates are
transferable only on the registry books of the Rights Agent if surrendered at
the office of the Rights Agent designated for such purpose, duly endorsed or
accompanied by a proper instrument of transfer; and
(c) the Company and the Rights Agent may deem and treat the Person in
whose name the Right Certificate (or, prior to the Distribution Date, the
associated Common Stock certificate) is registered as the absolute owner
thereof and of the Rights evidenced thereby (notwithstanding any notations of
ownership or writing on the Right Certificates or the associated Common Stock
22
certificate made by anyone other than the Company or the Rights Agent) for all
purposes whatsoever, and neither the Company nor the Rights Agent shall be
affected by any notice to the contrary.
SECTION 17. RIGHT CERTIFICATE HOLDER NOT DEEMED A STOCKHOLDER.
No holder, as such, of any Right Certificate shall be entitled to vote,
receive dividends or be deemed for any purpose the holder of Preferred Stock,
Common Stock or any other securities of the Company which may at any time be
issuable on the exercise of the Rights represented thereby, nor shall anything
contained herein or in any Right Certificate be construed to confer upon the
holder of any Right Certificate, as such, any of the rights of a stockholder
of the Company or any right to vote for the election of directors or upon any
matter submitted to stockholders at any meeting thereof, or to give or
withhold consent to any corporate action, or to receive notice of meetings or
other actions affecting stockholders (except as provided in Section 25
hereof), or to receive dividends or subscription rights, or otherwise, until
the Right or Rights evidenced by such Right Certificate shall have been
exercised in accordance with the provisions hereof.
SECTION 18. CONCERNING THE RIGHTS AGENT.
The Company agrees to pay to the Rights Agent reasonable compensation
for all services rendered by it hereunder and, from time to time, on demand of
the Rights Agent, its reasonable expenses and counsel fees and other
disbursements incurred in the administration, preparation, delivery, amendment
and execution of this Agreement and the exercise and performance of its duties
hereunder. The Company also agrees to indemnify the Rights Agent for, and to
hold it harmless against, any loss, liability, damage, judgment, fine,
penalty, claim, demand, settlement, cost or expense (including the costs and
expenses of enforcing this right of indemnification), incurred without gross
negligence or bad faith, as determined by a court of competent jurisdiction on
the part of the Rights Agent, for any action taken, suffered or omitted by the
Rights Agent in connection with the acceptance, amendment and administration
of this Agreement, including without limitation, the costs and expenses of
defending against any claim of liability therefrom directly or indirectly. The
indemnity provided for herein shall survive the expiration of the Rights and
the termination of this Agreement.
The Rights Agent may conclusively rely upon and shall be authorized,
protected and shall incur no liability for or in respect of any action taken,
suffered or omitted by it in connection with its administration of this
Agreement in reliance upon any Right Certificate or certificate for Preferred
Stock, Common Stock 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. Notwithstanding
anything in this Agreement to the contrary, in no event shall the Rights Agent
be liable for special, punitive, incidental loss, 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
23
loss or damage and regardless of the form of the action. Any liability of the
Rights Agent under this Rights Agreement will be limited to the amount of fees
paid by the company to the Rights Agent.
SECTION 19. MERGER OR CONSOLIDATION OR CHANGE OF NAME OF RIGHTS AGENT.
Any Person into which the Rights Agent or any successor Rights Agent may
be merged or with which it may be consolidated, or any Person resulting from
any merger or consolidation to which the Rights Agent or any successor Rights
Agent shall be a party, or any Person succeeding to the shareholder services
business of the Rights Agent or any successor Rights Agent, shall be the
successor to the Rights Agent under this Agreement without the execution or
filing of any paper or any further act on the part of any of the parties
hereto, provided that such Person would be eligible for appointment as a
successor Rights Agent under the provisions of Section 21 hereof. In case at
the time such successor Rights Agent shall succeed to the agency created by
this Agreement, any of the Right Certificates shall have been countersigned
but not delivered, any such successor Rights Agent may adopt the
countersignature of the predecessor Rights Agent and deliver such Right
Certificates so countersigned; and in case at that time any of the Right
Certificates shall not have been countersigned, any successor Rights Agent may
countersign such Right Certificates either in the name of the predecessor
Rights Agent or in the name of the successor Rights Agent; and in all such
cases such Right Certificates shall have the full force provided in the Right
Certificates and in this Agreement.
In case at any time the name of the Rights Agent shall be changed and at
such time any of the Right Certificates shall have been countersigned but not
delivered, the Rights Agent may adopt the countersignature under its prior
name and deliver Right Certificates so countersigned; and in case at that time
any of the Right Certificates shall not have been countersigned, the Rights
Agent may countersign such Right Certificates either in its prior name or in
its changed name; and in all such cases such Right Certificates shall have the
full force provided in the Right Certificates and in this Agreement.
SECTION 20. DUTIES OF RIGHTS AGENT.
The Rights Agent undertakes only the duties and obligations expressly
imposed by this Agreement (and no implied duties or obligations shall be read
into this Agreement against the Rights Agent) 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) Before the Rights Agent acts or refrains from acting, the Rights
Agent may consult with legal counsel (who may be legal counsel for the
Company), and the advice or opinion of such counsel shall be full and complete
authorization and protection to the Rights Agent as to any action taken or
omitted by it in good faith and in accordance with such advice or opinion.
(b) Whenever in the performance of its duties under this Agreement the
Rights Agent shall deem it necessary or desirable that any act or matter be
proved or established by the Company prior to taking, suffering or omitting
24
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 the President or any Vice
President and by the Chief Financial Officer, the Chief Accounting Officer,
Treasurer or any Assistant Treasurer or the Secretary or any Assistant
Secretary of the Company and delivered to the Rights Agent; and such
certificate shall be full authorization and protection to the Rights Agent and
the Rights Agent shall incur no liability for or in respect of any action
taken, suffered or omitted in good faith by it under the provisions of this
Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder only for its own gross
negligence and bad faith as determined by a court of competent jurisdiction.
(d) The Rights Agent shall not be liable for or by reason of any of
the statements of fact or recitals contained in this Agreement or in the Right
Certificates (except its countersignature thereof) or be required to verify
the same, and 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 liability or
responsibility in respect of the validity of this Agreement or the execution
and delivery hereof (except the due execution hereof by the Rights Agent) or
in respect of the validity or execution of any Right Certificate (except its
countersignature thereof); nor shall it be liable or responsible for any
breach by the Company of any covenant or condition contained in this Agreement
or in any Right Certificate; nor shall it be liable or responsible for any
adjustment required under the provisions of Sections 11 and 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 to the Rights Agent 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 shares of Preferred Stock, Common
Stock or other securities to be issued pursuant to this Agreement or any Right
Certificate or as to whether any shares of Preferred Stock, Common Stock or
other securities will, when issued, be validly authorized and issued, fully
paid and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged and delivered all
such further and other acts, instruments and assurances as may reasonably be
required by the Rights Agent for the carrying out or performing by the Rights
Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from the
Chief Executive Officer, President any Vice President, the Chief Financial
Officer, the Chief Accounting Officer, the Secretary, any Assistant Secretary,
the Treasurer or any Assistant 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 or omitted by
it in good faith in accordance with instructions of any such officer. Any
25
application by the Rights Agent for written instructions from the Company may,
at the option of the Rights Agent, set forth in writing any action proposed to
be taken or omitted by the Rights Agent under this Agreement and the date on
or after which such action shall be taken or such omission shall be effective.
The Rights Agent shall not be liable for any action taken or suffered to be
taken or omitted by it in good faith during the period beginning on the date
on which the Rights Agent has applied for written instructions from the
Company and ending on the date upon which the Rights Agent receives such
instructions or for action taken, suffered by, or omission of, the Rights
Agent in accordance with a proposal included in any such application on or
after the date specified in such application (which date shall not be less
than ten Business Days after the date any officer of the Company actually
receives such application, unless any such officer shall have consented in
writing to an earlier date) unless, prior to taking any such action (or the
effective date in the case of an omission), the Rights Agent shall have
received written instructions in response to such application with respect to
the proposed action or omission and/or specifying the action to be taken,
suffered or omitted.
(h) The Rights Agent and any stockholder, director, affiliate, officer
or employee of the Rights Agent may buy, sell or deal in any of the Rights or
other securities of the Company or have a pecuniary interest in any
transaction in which the Company may be interested, or contract with or lend
money to the Company or otherwise act as fully and freely as though it were
not the Rights Agent under this Agreement. Nothing herein shall preclude the
Rights Agent from acting in any other capacity for the Company or for any
other Person.
(i) The Rights Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either itself or by
or through its attorneys or agents, and the Rights Agent shall not be
answerable or accountable for any act, default, neglect or misconduct of any
such attorneys or agents or for any loss to the Company resulting from any
such act, default, neglect or misconduct, absent gross negligence or bad
faith, as determined by a court of competent jurisdiction, in the selection
and continued employment thereof.
(j) No provision of this Agreement shall require the Rights Agent to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of its rights if
there shall be reasonable grounds for believing that repayment of such funds
or adequate indemnification against such risk or liability is not reasonably
assured to it.
(k) If, with respect to any Right Certificate surrendered to the
Rights Agent for exercise or transfer, the certificate attached to the form of
assignment or form of election to purchase, as the case may be, has either not
been completed to certify the holder is not an Acquiring Person (or an
Affiliate or Associate thereof), the Rights Agent shall not take any further
action with respect to such requested exercise of transfer without first
consulting with the Company. The Rights Agent shall not be required to take
notice or be deemed to have notice of any fact, event or determination
(including, without limitation, any dates or events defined in this Agreement
or the designation of any Person as an Acquiring Person, Affiliate or
Associate) under this Agreement unless and until the Rights Agent shall be
26
specifically notified in writing by the Company of such fact, event or
determination.
SECTION 21. CHANGE OF RIGHTS AGENT.
The Rights Agent or any successor Rights Agent may resign and be
discharged from its duties under this Agreement upon a 30-day notice in
writing mailed to the Company and to each transfer agent of the Common Stock
and Preferred Stock by registered or certified mail, and to the holders of the
Right Certificates by first-class mail at the expense of the Company. The
Company may remove the Rights Agent or any successor Rights Agent upon a
30-days notice in writing, mailed to the Rights Agent or successor Rights
Agent, as the case may be, and to each transfer agent of the Common Stock and
Preferred Stock by registered or certified mail, and to the holders of the
Right Certificates by first-class mail. If the Rights Agent shall resign or be
removed or shall otherwise become incapable of acting, the Company shall
appoint a successor Rights Agent. If the Company shall fail to make such
appointment within a period of 30 days after such removal or after it has been
notified in writing of such resignation or incapacity by the resigning or
incapacitated Rights Agent or by the holder of a Right Certificate (who shall,
with such notice, submit his Right Certificate for inspection by the Company),
then the registered holder of any Right Certificate may apply to any court of
competent jurisdiction for the appointment of a successor Rights Agent. Any
successor Rights Agent, whether appointed by the Company or by such a court,
shall be (a) a corporation organized and doing business under the laws of the
United States or of any state, in good standing, and is subject to supervision
or examination by federal or state authority and which has at the time of its
appointment as Rights Agent a combined capital and surplus of at least
$25,000,000, or (b) an affiliate of a corporation described in clause (a) of
this sentence. 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. 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 mail a written
notice thereof in writing with the predecessor Rights Agent by certified or
registered mail and each transfer agent of the Common Stock and Preferred
Stock, and mail a written notice thereof to the registered holders of the
Right Certificates by first class mail. Failure to give any notice provided
for this Section 21, or any defect therein, shall not affect the legality or
validity of the resignation or removal of the Rights Agent or the appointment
of the successor Rights Agent, as the case may be.
SECTION 22. ISSUANCE OF NEW RIGHT CERTIFICATES.
Notwithstanding any of the provisions of this Agreement or of the Rights
to the contrary, the Company may, at its option, issue new Right Certificates
evidencing Rights in such form as may be approved by a majority of the Board
of Directors to reflect any adjustment or change in the Purchase Price and the
number or kind or class of shares of stock or other securities or property
27
purchasable under the Right Certificates made in accordance with the
provisions of this Agreement.
SECTION 23. REDEMPTION AND TERMINATION.
(a) (i) A majority of the Board of Directors of the Company may, at
its option, at any time prior to the earlier of (x) the time that any Person
becomes an Acquiring Person or (y) the Final Expiration Date, elect to redeem
all but not less than all of the then outstanding Rights at a redemption price
of $.01 per Right, as appropriately adjusted to reflect any stock split, stock
dividend or similar transaction occurring after the date hereof (such
redemption price being hereinafter referred to as the "Redemption Price"). The
redemption of the Rights by the Board may be made effective at such time, on
such basis and with such conditions as the Board in its sole discretion may
establish.
(ii) In addition, prior to any event described in Section 13(a),
a majority of the Board of Directors may redeem all but not less than all of
the then outstanding Rights at the Redemption Price (A) following the
occurrence of a Stock Acquisition Date either: (x) if each of the following
shall have occurred and remain in effect: (1) a Person who is an Acquiring
Person shall have transferred or otherwise disposed of a number of shares of
voting securities of the Company in a manner satisfactory to the Board of
Directors such that such Person is thereafter a Beneficial Owner of securities
having less than 20% of the Voting Power of the Company, and (2) there is no
other Person, immediately following the occurrence of the event described in
(1), who is an Acquiring Person; or (y) in connection with any transaction not
involving an Acquiring Person or an Affiliate or Associate of an Acquiring
Person; or (B) following a change (resulting from a proxy or consent
solicitation) in a majority of the directors in office at the commencement of
such solicitation if any Person who is a participant in such solicitation has
stated (or, if upon the commencement of such solicitation, a majority of the
Board of Directors of the Company has determined in good faith) that such
Person intends to take, or may consider taking, any action which would result
in such Person becoming an Acquiring Person.
(b) In the case of a redemption permitted under Section 23(a)(i),
immediately upon the action of a majority of the Board of Directors electing
to redeem the Rights, evidence of which shall be promptly filed with the
Rights Agent, 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. In the case of a
redemption permitted under Section 23(a)(ii), evidence of which shall have
been filed with the Rights Agent, the right to exercise the Rights will
terminate and represent only the right to receive the Redemption Price only
after ten (10) business days following the giving of such notice of such
redemption to the holders of such Rights. The Company shall promptly give
public disclosure of any such redemption; provided, however, that the failure
to give, or any defect in, any such disclosure shall not affect the validity
of such redemption. Within 10 days after the action of the Board of Directors
ordering the redemption of the Rights, the Company shall give notice of such
redemption to the holders of the then outstanding Rights and to the Rights
Agent by mailing by first class mail such notice to all such holders at their
last addresses as they appear upon the registry books of the transfer agent
28
for the Common Stock. Any notice which is mailed in the manner herein provided
shall be deemed given, whether or not the holder receives the notice. Each
such notice of redemption will state the method by which the payment of the
Redemption Price will be made.
(c) Neither the Company nor any of its Affiliates or Associates may
redeem, acquire or purchase for value any Rights at any time or in any manner
other than that specifically set forth in this Section 23, and other than in
connection with the purchase of shares of Common Stock prior to the
Distribution Date.
SECTION 24. EXCHANGE.
(a) The Board of Directors of the Company may, at its option, at any
time after any Person becomes an Acquiring Person, exchange all or part of the
then outstanding and exercisable Rights (which shall not include Rights that
have become null and void pursuant to the provisions of Section 7(e) hereof)
for Common Stock at an exchange ratio of one share of Common Stock per Right,
appropriately adjusted to reflect any stock split, stock dividend or similar
transaction occurring after the date hereof (such exchange ratio being
hereinafter referred to as the "Exchange Ratio"). Notwithstanding the
foregoing, the Board of Directors shall not be empowered to effect such
exchange at any time after any Person (other than the Company, any Subsidiary
of the Company, any employee benefit plan of the Company or any such
Subsidiary, or any entity holding Common Stock for or pursuant to the terms of
any such plan), together with all Affiliates and Associates of such Person,
becomes the Beneficial Owner of 50% or more of the Common Stock then
outstanding.
(b) Immediately upon the action of the Board of Directors of the
Company ordering the exchange of any Rights pursuant to subsection (a) of this
Section 24 and without any further action and without any notice, the right to
exercise such Rights shall terminate and the only right thereafter of a holder
of such Rights shall be to receive that number of shares of Common Stock equal
to the number of such Rights held by such holder multiplied by the Exchange
Ratio. The Company shall promptly give public notice of any such exchange with
prompt notice thereof to the Rights Agent; provided, however, that the failure
to give, or any defect in, such notice shall not affect the validity of such
exchange. The Company promptly shall mail a notice of any such exchange to all
of the holders of such Rights at their last addresses as they appear upon the
registry books of the Rights Agent. Any notice which is mailed in the manner
herein provided shall be deemed given, whether or not the holder receives the
notice. Each such notice of exchange will state the method by which the
exchange of the Common Stock for Rights will be effected and, in the event of
any partial exchange, the number of Rights which will be exchanged. Any
partial exchange shall be effected pro rata based on the number of Rights
(other than Rights which have become null and void pursuant to the provisions
of Section 7(e) hereof) held by each holder of Rights.
(c) In any exchange pursuant to this Section 24, the Company, at its
option, may substitute Preferred Stock for Common Stock exchangeable for
Rights, at the initial rate of one one-hundredth of a share of Preferred
29
Stock, as appropriately adjusted to reflect adjustments in the voting rights
of the Preferred Stock pursuant to the terms thereof, so that the fraction of
a share of Preferred Stock delivered in lieu of each share of Common Stock
shall have the same voting rights as one share of Common Stock.
(d) In the event that there shall not be sufficient shares of Common
Stock or of Preferred Stock issued but not outstanding, or authorized but
unissued, to permit any exchange of Rights as contemplated in accordance with
this Section 24, the Company shall take all such action as may be necessary to
authorize additional shares of Common Stock or of Preferred Stock for issuance
upon exchange of the Rights.
(e) The Company shall not be required to issue fractional shares of
Common Stock or of Preferred Stock (other than fractions which are integral
multiples of one one-hundredth of a share of Preferred Stock) or to distribute
certificates which evidence fractional shares of such Common Stock or of
Preferred Stock. In lieu of such fractional shares, the Company shall pay to
the registered holders of the Right Certificates with regard to which such
fractional shares would otherwise be issuable an amount in cash as determined
by Section 14 hereof.
SECTION 25. NOTICE OF PROPOSED ACTIONS.
In case the Company shall propose (a) to pay any dividend payable in
stock of any class to the holders of its Preferred Stock or to make any other
distribution to the holders of its Preferred Stock (other than a regular
periodic cash dividend out of earnings or retained earnings of the Company),
or (b) to offer to the holders of its Preferred Stock rights or warrants to
subscribe for or to purchase any additional shares of Preferred Stock or
shares of stock of any other class or any other securities, rights or options,
or (c) to effect any reclassification of its Preferred Stock (other than a
reclassification involving only the subdivision of outstanding shares of
Preferred Stock), or (d) to effect any consolidation or merger into or with,
or to effect any sale or other transfer (or to permit one or more of its
Subsidiaries to effect any sales or other transfer), in one or more
transactions, of 50% or more of the assets or earning power of the Company and
its Subsidiaries (taken as a whole) to, any other Person, or (e) to effect the
liquidation, dissolution or winding up of the Company, then, in each such
case, the Company shall mail by first class mail to each holder of a Right and
the Rights Agent, in accordance with Section 26 hereof, a notice of such
proposed action, which shall specify the record date for the purposes of such
stock dividend, distribution of rights or warrants, or the date on which such
reclassification, consolidation, merger, sale, transfer, liquidation,
dissolution, or winding up is to take place and the date of participation
therein by the holders of the Preferred Stock, if any such date is to be
fixed. Such notice shall be so given in the case of any action covered by
clauses (a) or (b) above at least ten days prior to the record date for
determining holders of the Preferred Stock for purposes of such action, and in
the case of any such other action, at least ten days prior to the date of the
taking of such proposed action or the date of participation therein by the
holders of Preferred Stock, whichever shall be the earlier. The failure to
give notice required by this Section 25, or any defect therein, shall not
affect the legality or validity of the action taken by the Company or the vote
upon any such action.
30
In case any of the events set forth in Section 11(b) of this Agreement
shall occur, then, in any such case, the Company shall as soon as practicable
thereafter mail by first class mail to each holder of a Right Certificate and
the Rights Agent, in accordance with Section 26 hereof, a notice of the
occurrence of such event, which shall specify the event and the consequences
of the event to holders of Rights under Section 11(b) 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 (unless another address is filed in writing with
the Rights Agent) as follows:
COEUR D'XXXXX XXXXX CORPORATION
000 Xxxxx Xxxxxx
Xxxxx x'Xxxxx, Xxxxx 00000
Attention: Secretary
Subject to the provisions of Section 21 hereof, any notice or demand
authorized by this Agreement to be given or made by the Company or by the
holder of any Right Certificate to or on the Rights Agent shall be
sufficiently given or made if sent by registered or certified mail or
overnight courier with a reputable national courier service and shall be
deemed given upon receipt and addressed (unless another address is filed in
writing with the Company) as follows:
CHASEMELLON SHAREHOLDER SERVICES L.L.C.
000 Xxxx Xxxxxx (#1220)
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Notices or demands authorized by this Agreement to be given or made by
the Company or the Rights Agent to the holder of any Right Certificate shall
be sufficiently given or made if sent by first-class mail, postage prepaid,
addressed to such holder at the address of such holder as shown on the
registry books of the Company or the Rights Agent.
SECTION 27. SUPPLEMENTS AND AMENDMENTS.
The Company may from time to time supplement or amend this Agreement
without the approval of any holders of Right Certificates in order to cure any
ambiguity, to correct or supplement any provision contained herein which may
be defective or inconsistent with any other provisions herein, or to make any
other provisions in regard to matters or questions arising hereunder which the
Company may deem necessary or desirable and which shall be consistent with,
and for the purpose of fulfilling, the objectives of the Board of Directors in
adopting this Agreement, any such supplement or amendment to be evidenced by a
writing signed by the Company and the Rights Agent; provided, however, that
31
from and after such time any Person becomes an Acquiring Person, this
Agreement shall not be amended in any manner which would adversely affect the
interests of the holders of Rights. Notwithstanding anything in this Agreement
to the contrary, no supplement or amendment that changes the rights and duties
of the Rights Agent under this Agreement will be effective against the Rights
Agent without the execution of such supplement or amendment by the Rights
Agent. Upon the delivery of a certificate from an appropriate officer of the
company which states that the proposed supplement or amendment is in
compliance with the terms of this Section 27, and such supplement or amendment
does not change or increase the Rights Agents duties, liabilities or
obligations, the Rights Agent shall execute such supplement or amendment.
SECTION 28. SUCCESSORS.
All the covenants and provisions of this Agreement by or for the benefit
of the Company or the Rights Agent shall bind and inure to the benefit of
their respective successors and assigns hereunder.
SECTION 29. BENEFITS OF THIS AGREEMENT.
Nothing in this Agreement shall be construed to give any Person 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 Stock) any legal or equitable right, remedy or claim under this
Agreement. This Agreement shall be for the sole and exclusive benefit of the
Company, the Rights Agent and the registered holders of the Right Certificates
(and, prior to the Distribution Date, the Common Stock).
SECTION 30. SEVERABILITY.
If any term, provision, covenant or restriction of this Agreement is
held by a court of competent jurisdiction or other authority to be invalid,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated. It is the intent of the
parties hereto to enforce the remainder of the terms, provisions, covenants
and restrictions to the maximum extent permitted by law.
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SECTION 31. GOVERNING LAW.
This Agreement and each Right Certificate issued hereunder shall be
deemed to be a contract made under the laws of the State of Idaho and for all
purposes shall be governed by and construed in accordance with the laws of
such state applicable to contracts to be made and performed entirely within
such state; provided, however, that all provisions regarding the rights,
duties and obligations of the Rights Agent shall be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be performed entirely within such State.
SECTION 32. COUNTERPARTS.
This Agreement may be executed in any number of counterparts and each of
such counterparts shall for all purposes be deemed to be an original, and all
such counterparts shall together constitute but one and the same instrument.
SECTION 33. DESCRIPTIVE HEADINGS.
Descriptive headings of the several Sections of this Agreement are
inserted for convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, all as of the day and year first above written.
Attest: COEUR D'XXXXX XXXXX CORPORATION
By _______________________________ By __________________________________
Name: Xxxxxxx X. Xxxx: Xxxxxx X. Xxxxxxx
Title: Secretary Title: Chairman of the Board,
President and Chief Executive Officer
Attest: CHASEMELLON SHAREHOLDER SERVICES,
L.L.C AS, RIGHTS AGENT
By _______________________________ By __________________________________
Name: Name:
Title: Title:
34
EXHIBIT A
[FORM OF CERTIFICATE OF DESIGNATION]
CERTIFICATE OF DESIGNATION, PREFERENCES AND
RIGHTS OF SERIES B JUNIOR PREFERRED STOCK
OF
COEUR D'XXXXX XXXXX CORPORATION
Coeur d'Xxxxx Xxxxx Corporation (the "Company"), a corporation organized
and existing under Idaho Business Corporation Act, in accordance with the
provisions of Section 30-1-602 thereof, DO HEREBY CERTIFY:
That, pursuant to the authority conferred upon the Board of Directors by
the Articles of Incorporation, as amended, of the Company, the said Board of
Directors on May 11, 1999 adopted the following resolution creating a series
of Five Hundred Thousand (500,000) shares of voting Preferred Stock designated
as Series B Junior Preferred Stock:
RESOLVED, that pursuant to the authority vested in the Board of
Directors of the Company in accordance with the provisions of its Articles of
Incorporation, as amended, a series of voting Preferred Stock of the Company
be and it is hereby created, and that the designation and amount thereof and
the powers, preferences and relative, participating, optional and other
special rights of the shares of such series, and the qualifications,
limitations or restrictions thereof are as follows:
SECTION 1. DESIGNATION AND AMOUNT.
There shall be a series of the voting preferred stock of the Company
which shall be designated as the "Series B Junior Preferred Stock," $1.00 par
value per share, and the number of shares constituting such series shall be
Five Hundred Thousand (500,000). Such number of shares may be increased or
decreased by resolution of the Board of Directors; provided, however, that no
decrease shall reduce the number of shares of Series B Junior Preferred Stock
to a number less than that of the shares then outstanding plus the number of
shares issuable upon exercise of outstanding rights, options or warrants or
upon conversion of outstanding securities issued by the Company.
SECTION 2. DIVIDENDS AND DISTRIBUTIONS.
(A) Subject to the rights of the holders of any shares of any series
of preferred stock of the Company ranking prior and superior to the Series B
Junior Preferred Stock with respect to dividends, the holders of shares of
Series B Junior Preferred Stock, in preference to the holders of shares of
Common Stock, $1.00 par value per share (the "Common Stock"), of the Company
and of any other junior stock, shall be entitled to receive, when, as and if
declared by the Board of Directors out of funds legally available for the
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purpose, quarterly dividends payable in cash on or about March 31, June 30,
September 30 and December 31 in each year (each such date being referred to
herein as a "Quarterly Dividend Payment Date"), commencing on the first
Quarterly Dividend Payment Date after the first issuance of a share or
fraction of a share of Series B Junior Preferred Stock, in an amount per share
(rounded to the nearest cent) equal to the greater of (a) $1.00 or (b) subject
to the provision for adjustment hereinafter set forth, 100 times the aggregate
per share amount of all cash dividends and 100 times the aggregate per share
amount (payable in kind) of all non-cash dividends or other distributions,
other than a dividend payable in shares of Common Stock or a subdivision of
the outstanding shares of Common Stock (by reclassification or otherwise),
declared on the Common Stock since the immediately preceding Quarterly
Dividend Payment Date or, with respect to the first Quarterly Dividend Payment
Date, since the first issuance of any share or fraction of a share of Series B
Junior Preferred Stock. In the event the Company shall at any time after May
25, 1998 (the "Rights Declaration Date") declare or pay any dividend on the
Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of
Common Stock) into a greater or lesser number of shares of Common Stock, then
in each such case the amount to which holders of shares of Series B Junior
Preferred Stock were entitled immediately prior to such event under clause (b)
of the preceding sentence shall be adjusted by multiplying such amount by a
fraction, the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to
such event.
(B) The Company shall declare a dividend or distribution on the Series
B Junior Preferred Stock as provided in paragraph (A) of this Section
immediately after it declares a dividend or distribution on the Common Stock
(other than a dividend payable in shares of Common Stock); provided, however,
that in the event no dividend or distribution shall have been declared on the
Common Stock during the period between any Quarterly Dividend Payment Date and
the next subsequent Quarterly Dividend Payment Date, a dividend of $1.00 per
share on the Series B Junior Preferred Stock shall nevertheless be payable on
such subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series B Junior Preferred Stock from the Quarterly Dividend Payment
Date next preceding the date of issue of such shares, unless the date of issue
of such shares is prior to the record date for the first Quarterly Dividend
Payment Date, in which case dividends on such shares shall begin to accrue
from the date of issue of such shares, or unless the date of issue is a
Quarterly Dividend Payment Date or is a date after the record date for the
determination of holders of shares of Series B Junior Preferred Stock entitled
to receive a quarterly dividend and before such Quarterly Dividend Payment
Date, in either of which events such dividends shall begin to accrue and be
cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid
dividends shall not bear interest. Dividends paid on the shares of Series B
Junior Preferred Stock in an amount less than the total amount of such
dividends at the time accrued and payable on such shares shall be allocated
pro rata on a share-by-share basis among all such shares at the time
outstanding. The Board of Directors may fix a record date for the
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determination of holders of shares of Series B Junior Preferred Stock entitled
to receive payment of a dividend or distribution declared thereon, which
record date shall be not more than 60 days prior to the date fixed for the
payment thereof.
SECTION 3. VOTING RIGHTS.
The holders of shares of Series B Junior Preferred Stock shall have the
following voting rights:
(A) Each share of Series B Junior Preferred Stock shall entitle the
holder thereof to 100 votes on all matters submitted to a vote of the
stockholders of the Company.
(B) Except as otherwise provided herein, in the Company's Articles of
Incorporation or by laws, the holders of shares of Series B Junior Preferred
Stock, the holders of shares of Common Stock, and the holders of shares of any
other capital stock of the Company having general voting rights shall vote
together as one class on all matters submitted to a vote of stockholders of
the Company.
(C) Except as otherwise set forth herein or in the Company's Articles
of Incorporation, and except as otherwise provided by law, holders of Series B
Junior Preferred Stock shall have no special voting rights and their consent
shall not be required (except to the extent they are entitled to vote with
holders of Common Stock as set forth herein) for taking any corporate action.
SECTION 4. CERTAIN RESTRICTIONS.
(A) Whenever dividends or distributions payable on the Series B Junior
Preferred Stock as provided in Section 2 are in arrears, thereafter and until
all accrued and unpaid dividends and distributions, whether or not declared,
on shares of Series B Junior Preferred Stock outstanding shall have been paid
in full, the Company shall not:
(i) declare or pay dividends on, make any other distributions
on, or redeem or purchase or otherwise acquire for consideration any shares of
stock ranking junior (either as to dividends or upon liquidation, dissolution
or winding up) to the Series B Junior Preferred Stock;
(ii) declare or pay dividends on or make any other distributions
on any shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series B Junior Preferred
Stock, except dividends paid ratably on the Series B Junior Preferred Stock
and all such parity stock on which dividends are payable or in arrears in
proportion to the total amounts to which the holders of all such shares are
then entitled;
(iii) except as permitted in Section 4(A)(iv) below, redeem or
purchase or otherwise acquire for consideration shares of any stock ranking on
a parity (either as to dividends or upon liquidation, dissolution or winding
up) with the Series B Junior Preferred Stock, provided, however, that the
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Company may at any time redeem, purchase or otherwise acquire shares of any
such parity stock in exchange for shares of any stock of the Company ranking
junior (either as to dividends or upon dissolution, liquidation or winding up)
to the Series B Junior Preferred Stock; and
(iv) purchase or otherwise acquire for consideration any shares
of Series B Junior Preferred Stock, or any shares of stock ranking on a parity
with the Series B Junior Preferred Stock, except in accordance with a purchase
offer made in writing or by publication (as determined by the Board of
Directors) to all holders of such shares upon such terms as the Board of
Directors, after consideration of the respective annual dividend rates and
other relative rights and preferences of the respective series and classes,
shall determine in good faith will result in fair and equitable treatment
among the respective series or classes.
(B) The Company shall not permit any subsidiary of the Company to
purchase or otherwise acquire for consideration any shares of stock of the
Company unless the Company could, under paragraph (A) of this Section 4,
purchase or otherwise acquire such shares at such time and in such manner.
SECTION 5. REACQUIRED SHARES.
Any shares of Series B Junior Preferred Stock purchased or otherwise
acquired by the Company in any manner whatsoever shall be retired and canceled
promptly after the acquisition thereof. The Company shall cause all such
shares upon their cancellation to be authorized but unissued shares of
Preferred Stock which may be reissued as part of a new series of Preferred
Stock, subject to the conditions and restrictions on issuance set forth
herein.
SECTION 6. LIQUIDATION, DISSOLUTION OR WINDING UP.
(A) Upon any liquidation (voluntary or otherwise), dissolution or
winding up of the Company, no distribution shall be made to the holders of
shares of stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series B Junior Preferred Stock unless,
prior thereto, the holders of shares of Series B Junior Preferred Stock shall
have received $100.00 per share, plus an amount equal to accrued and unpaid
dividends and distributions thereon, whether or not declared, to the date of
such payment (the "Series B Liquidation Preference"). Following the payment of
the full amount of the Series B Liquidation Preference, no additional
distributions shall be made to the holders of shares of Series B Junior
Preferred Stock, unless, prior thereto, the holders of shares of Common Stock
shall have received an amount per share (the "Common Adjustment") equal to the
quotient obtained by dividing (i) the Series B Liquidation Preference by (ii)
100 (as appropriately adjusted as set forth in paragraph (C) of this Section 6
to reflect such events as stock dividends, and subdivisions, combinations and
consolidations with respect to the Common Stock) (such number in clause (ii)
being referred to as the "Adjustment Number"). Following the payment of the
full amount of the Series B Liquidation Preference and the Common Adjustment
in respect of all outstanding shares of Series B Junior Preferred Stock and
Common Stock, respectively, holders of Series B Junior Preferred Stock and
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holders of shares of Common Stock shall receive their ratable and
proportionate share of the remaining assets to be distributed in the ratio of
the Adjustment Number to 1 with respect to such Series B Junior Preferred
Stock and Common Stock, on a per share basis, respectively.
(B) In the event there are not sufficient assets available to permit
payment in full of the Series B Liquidation Preference and the liquidation
preferences of all other series of preferred stock, if any, which rank on a
parity with the Series B Junior Preferred Stock, then such remaining assets
shall be distributed ratably to the holders of such parity shares in
proportion to their respective liquidation preferences. In the event there are
not sufficient assets available to permit payment in full of the Common
Adjustment, then such remaining assets shall be distributed ratably to the
holders of Common Stock.
(C) In the event the Company shall at any time after the Rights
Declaration Date declare or pay any dividend on Common Stock payable in shares
of Common Stock, or effect a subdivision or combination or consolidation of
the outstanding shares of Common Stock (by reclassification or otherwise than
by payment of a dividend in shares of Common Stock) into a greater or lesser
number of shares of Common Stock, then in each such case the Adjustment Number
in effect immediately prior to such event shall be adjusted by multiplying
such Adjustment Number by a fraction the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that are
outstanding immediately prior to such event.
SECTION 7. CONSOLIDATION, MERGER, ETC.
In case the Company shall enter into any consolidation, merger,
combination or other transaction in which the shares of Common Stock are
exchanged for or changed into other stock or securities, cash and/or any other
property, then in any such case the shares of Series B Junior Preferred Stock
shall at the same time be similarly exchanged or changed in an amount per
share (subject to the provision for adjustment hereinafter set forth) equal to
100 times the aggregate amount of stock, securities, cash and/or any other
property (payable in kind), as the case may be, into which or for which each
share of Common Stock is exchanged or changed. In the event the Company shall
at any time after the Rights Declaration Date declare or pay any dividend on
Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of
Common Stock) into a greater or lesser number of shares of Common Stock, then
in each such case the amount set forth in the preceding sentence with respect
to the exchange or change of shares of Series B Junior Preferred Stock shall
be adjusted by multiplying such amount by a fraction the numerator of which is
the number of shares of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of Common Stock that are
outstanding immediately prior to such event.
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SECTION 8. REDEMPTION.
The shares of Series B Junior Preferred Stock shall not be redeemable.
SECTION 9. RANKING.
The Series B Junior Preferred Stock shall rank junior to all other
series of the Company's Preferred Stock as to the payment of dividends and the
distribution of assets, unless the terms of any such series shall provide
otherwise.
SECTION 10. FRACTIONAL SHARES.
Series B Junior Preferred Stock may be issued in fractions which are
integral multiples of one one-hundredth of a share. Fractions of shares of
Series B Junior Preferred Stock may, at the election of the Company, be
evidenced by depositary receipts, pursuant to an appropriate agreement between
the Company and a depositary selected by the Company. The holders of such
depositary receipts shall have all the rights, privileges and preferences to
which they are entitled as beneficial owners of the Series B Junior Preferred
Stock represented by such depositary receipts.
IN WITNESS WHEREOF, I have executed and subscribed this Certificate and
do affirm and acknowledge the foregoing as true under the penalties of perjury
this 11th day of May, 1999.
By: ___________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Chairman of the Board, President
and Chief Executive Officer
Attest:
-------------------------------
Name:
Title: Secretary
State of Idaho )
) ss:
County of Kootenai )
On this 11th day of May, 1999, before me, _____________________, a
Notary Public in and for the State of Idaho, personally appeared Xxxxxx X.
Xxxxxxx, Chairman of the Board, President and Chief Executive Officer of Coeur
d'Xxxxx Xxxxx Corporation, known to me to be the person who executed the
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foregoing Certificate of Designation and acknowledged to me that he executed
the same pursuant to authority given by the Board of Directors of such
corporation as their free and voluntary act, and as the free and voluntary act
and deed of such corporation, for the uses and purposes therein set forth.
----------------------------------
Notary Public
My commission expires:
A-7
EXHIBIT B
[FORM FACE OF RIGHT CERTIFICATE]
Certificate No.________________ ____________________Rights
NOT EXERCISABLE AFTER MAY 24, 2009 OR EARLIER IF NOTICE OF REDEMPTION OR
EXCHANGE IS GIVEN. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE
COMPANY, AT $.01 PER RIGHT OR EXCHANGE ON THE TERMS SET FORTH IN THE RIGHTS
AGREEMENT. [THE RIGHTS REPRESENTED BY THIS RIGHT CERTIFICATE WERE ISSUED TO A
PERSON WHO WAS AN ACQUIRING PERSON OR AN AFFILIATE OR AN ASSOCIATE OF AN
ACQUIRING PERSON. THIS RIGHT CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY
BECOME NULL AND VOID AND NO LONGER TRANSFERABLE IN THE CIRCUMSTANCES SPECIFIED
IN SECTION 7(E) OF THE RIGHTS AGREEMENT.]
RIGHT CERTIFICATE
COEUR D'XXXXX XXXXX CORPORATION
This certifies that ___________________, or registered assigns, is the
registered owner of the number of Rights set forth above, each of which
entitles the owner thereof, subject to the terms, provisions and conditions of
the Rights Agreement, dated as of May 11, 1999 (the "Rights Agreement"),
between Coeur d'Xxxxx Xxxxx Corporation, an Idaho corporation (the "Company"),
and ChaseMellon Shareholder Services L.L.C. (the "Rights Agent"), to purchase
from the Company at any time after the Distribution Date (as such term is
defined in the Rights Agreement) and prior to 5:00 P.M. (Central time) on May
24, 2009 (the "Final Expiration Date") at the office of the Rights Agent
designated for such purpose, or its successor as Rights Agent, one
one-hundredth of a fully paid, nonassessable share of the Series B Junior
Preferred Stock, $1.00 par value per share ("Preferred Stock"), of the
Company, at a purchase price of $100.00 per one one-hundredth of a share (the
"Purchase Price"), upon presentation and surrender of this Right Certificate
with the Form of Election to Purchase on the reverse side hereof duly
executed. The number of Rights evidenced by this Right Certificate (and the
number of shares which may be purchased upon exercise of each Right) and the
Purchase Price set forth above, are the number and Purchase Price as of May
25, 1999, based on the shares of Preferred Stock of the Company as constituted
at such date.
As provided in the Rights Agreement, the Purchase Price and the number
of shares of Preferred Stock which may be purchased upon the exercise of each
of the Rights evidenced by this Right Certificate are subject to modification
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and adjustment upon the happening of certain events.
This Right Certificate is subject to all of the terms, provisions and
conditions of the Rights Agreement, which terms, provisions and conditions are
hereby incorporated herein by reference and made a part hereof and to which
Rights Agreement reference is hereby made for a full description of the
rights, limitations of rights, obligations, duties and immunities hereunder of
the Rights Agent, the Company and the holders of the Right Certificates.
Copies of the Rights Agreement are on file at the Company and the
above-mentioned office of the Rights Agent and are also available upon written
request to the Company.
This Right Certificate, with or without other Right Certificates, upon
surrender at the office of the Rights Agent designated for such purpose, may
be exchanged for another Right Certificate or Right Certificates of like tenor
and date evidencing Rights entitling the holder to purchase a like aggregate
number of shares of Preferred Stock as the Rights evidenced by the Right
Certificate or Right Certificates surrendered shall have entitled such holder
to purchase. If this Right Certificate shall be exercised in part, the holder
shall be entitled to receive, upon surrender hereof, another Right Certificate
or Right Certificates for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights evidenced
by this Certificate may be redeemed by the Company at its option at a
redemption price of $.01 per Right prior to the earlier of (i) the time that
any Person becomes an Acquiring Person (as defined in the Rights Agreement) or
(ii) the Final Expiration Date. Under certain terms and conditions, the Rights
may also be redeemed following the time that any person becomes an Acquiring
Person but prior to the Final Expiration Date, as more fully described in the
Rights Agreement. In addition, subject to the provisions of the Rights
Agreement, the Rights may be exchanged at the option of the Company at any
time after any person becomes an Acquiring Person at an initial exchange ratio
of one share of Common Stock (or one one-hundredth of a share of Preferred
Stock) for each Right exchanged.
No fractional shares of Preferred Stock will be issued upon the exercise
of any Rights evidenced hereby (other than fractions which are integral
multiples of one one-hundredth of a share of Preferred Stock, which may, at
the election of the Company, be evidenced by depositary receipts). In lieu of
fractions of a share that are not integral multiples of one-hundredth of a
share of Preferred Stock, a cash payment will be made, as provided in the
Rights Agreement.
No holder of this Right Certificate shall be entitled to vote or receive
dividends or be deemed for any purpose the holder of shares of Preferred
Stock, Common Stock or of any other securities of the Company which may at any
time be issuable on the exercise hereof, nor shall anything contained in the
Rights Agreement or herein be construed to confer upon the holder hereof, as
such, any of the rights of a stockholder of the Company or any right to vote
for the election of directors or upon any matter submitted to stockholders at
any meeting thereof, or to give or withhold consent to any corporate action,
or to receive notice of meetings or other actions affecting stockholders
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(except as provided in the Rights Agreement), or to receive dividends or
subscription rights, or otherwise, until the Rights evidenced by this Right
Certificate shall have been exercised as provided in the Rights Agreement.
This Right Certificate shall not be valid or obligatory for any purpose
until it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the Company
and its corporate seal. Dated as of -----------------, ------.
Attest: COEUR D'XXXXX XXXXX CORPORATION
By _______________________________ By __________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Title: Chairman of the Board,
President and Chief Executive Officer
Countersigned:
CHASEMELLON SHAREHOLDER SERVICES L.L.C.
By: ________________________________
Name:
Title:
[FORM OF REVERSE SIDE OF RIGHT CERTIFICATE]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Right Certificate.)
FOR VALUE RECEIVED ___________________ hereby sells, assigns and transfers
unto:
(Please print name and address of transferee)
this Right Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint -------------------
Attorney to transfer the within Right Certificate on the books of the
within-named Company, with full power of substitution.
Dated: ______________, _____
__________________________________
Signature
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(Signature must conform in all respects to name of holder
as specified on the face of this Right Certificate)
Signature Guaranteed: ___________________
The signature of the person(s) signing this Right Certificate must be
guaranteed by a participant in the Securities Transfer Agent's Medallion
Program, the Stock Exchange's Medallion Program or the NYSE, Inc. Medallion
Program.
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 pursuant to 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, was, or subsequently became an Acquiring Person or an
Affiliate or Associate of an Acquiring Person.
Dated: ______________, _____
__________________________________
Signature
(Signature must conform in all respects to name of holder
as specified on the face of this Right Certificate)
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to
exercise the Right Certificate)
To ChaseMellon Shareholder Services L.L.C.:
The undersigned hereby irrevocably elects to exercise Rights represented
by this Right Certificate to purchase the shares of Preferred Stock (or other
securities) issuable upon the exercise of such Rights and requests that
certificates for such shares be issued in the name of:
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Name: __________________________________________________
Address: _______________________________________________
Social Security or
Taxpayer I.D. No.: ______________________________________________
If such number of Rights shall not be all the Rights evidenced by this
Right Certificate, a new Right Certificate for the balance remaining of such
Rights shall be registered in the name of an delivered to:
Name: __________________________________________________
Address: _______________________________________________
Social Security or
Taxpayer I.D. No.: ______________________________________________
Dated: ___________, _____
__________________________________
Signature
(Signature must conform in all respects to name of holder
as specified on the face of this Right Certificate)
Signature Guaranteed:
The signature of the person(s) signing this Right Certificate must be
guaranteed by a participant in the Securities Transfer Agent's Medallion
Program, the Stock Exchange's Medallion Program or the NYSE, Inc. Medallion
Program.
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CERTIFICATE
The undersigned hereby certifies by checking the appropriate boxes that:
(1) the Rights evidenced by this Right Certificate [ ] are [ ] are not
being exercised 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 pursuant to the Rights Agreement);
(2) 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 pursuant to the Rights Agreement);
(3) 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, was or became an Acquiring Person or an Affiliate or
Associate of an Acquiring Person.
Dated: ___________, _____
__________________________________
Signature
(Signature must conform in all respects to name of holder
as specified on the face of this Right Certificate)
NOTICE
The signature in the foregoing Forms of Assignment and Election to
Purchase must conform to the name as written upon the face of this Right
Certificate in every particular, without alteration or enlargement or any
change whatsoever.
In the event the certification set forth above in the Form of Assignment
or the Form of Election to Purchase, as the case may be, is not completed, the
Company and the Rights Agent will deem the beneficial owner of the Rights
evidenced by this Right Certificate to be an Acquiring Person or an Affiliate
or Associate thereof (as defined in the Rights Agreement) and such Assignment
or Election to Purchase will not be honored.
B-6
EXHIBIT C
[Form of Summary of Preferred Stock Purchase Rights]
SUMMARY OF SERIES B JUNIOR PREFERRED STOCK
PURCHASE RIGHTS
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COEUR D'XXXXX XXXXX CORPORATION
----------
On May 11, 1999, the Board of Directors of Coeur d'Xxxxx Xxxxx
Corporation (the "Company") declared a dividend distribution of one Preferred
Stock Purchase Right (collectively, the "Rights") for each outstanding share
of common stock, $.01 par value (the "Common Stock"), of the Company (other
than shares held in the Company's treasury). The dividend distribution is
payable to the stockholders of record at the close of business on May 25, 1999
(the "Record Date"). Except as set forth below, each Right, when exercisable,
entitles the registered holder to purchase from the Company one one-hundredth
of a share of a new series of voting preferred stock, designated as Series B
Junior Preferred Stock, $1.00 par value per share (the "Preferred Stock"), at
a price of $100.00 per one one-hundredth of a share (the "Purchase Price"),
subject to adjustment. The description and terms of the Rights are set forth
in a Rights Agreement (the "Rights Agreement") between the Company and
ChaseMellon Shareholder Services L.L.C., as Rights Agent (the "Rights Agent").
Initially, the Rights will be attached to all Common Stock certificates
representing shares then outstanding, and no separate Right Certificates will
be distributed. Until the earlier of (i) ten business days following the first
to occur of (a) a public announcement that, without the prior written consent
of the Board of Directors of the Company, a person or group of affiliated or
associated persons other than the Company, a subsidiary of the Company or any
employee benefit plan of the Company or a subsidiary of the Company (an
"Acquiring Person") has acquired, or obtained the right to acquire,
outstanding shares of Common Stock of the Company representing 20% or more of
the voting power of the Company or (b) the date on which the Company first has
notice or otherwise determines that a person has become an Acquiring Person
(the "Stock Acquisition Date") or (ii) ten business days following the
commencement or announcement of an intention to make a tender offer or
exchange offer, without the prior written consent of the Board of Directors of
the Company, for outstanding shares of such Common Stock representing 20% or
more of the voting power of the Company (the earlier of the dates in clause
(i) or (ii) above being called the "Distribution Date"), the Rights will be
evidenced, with respect to any of the Company's Common Stock certificates
outstanding as of and after the Record Date (other than shares held in the
Company's treasury), by such Common Stock certificates. The Rights Agreement
provides that, until the Distribution Date, the Rights will be transferred
with and only with the Company's Common Stock. Until the Distribution Date (or
earlier redemption, exchange or expiration of the Rights), new Common Stock
certificates issued after the Record Date, upon transfer, new issuance or
issuance from the Company's treasury of the Company's Common Stock, will
contain a notation incorporating the Rights Agreement by reference. Until the
Distribution Date (or earlier redemption, exchange or expiration of the
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Rights), the surrender for transfer of any of the Company's Common Stock
certificates outstanding as of and after the Record Date will also constitute
the transfer of the Rights associated with the Common Stock represented by
such certificates. As soon as practicable following the Distribution Date,
separate certificates evidencing the Rights ("Right Certificates") will be
mailed to holders of record of the Company's Common Stock as of the close of
business on the Distribution Date and such separate certificates alone will
then evidence the Rights.
Notwithstanding the above, a person will not be deemed to be an
Acquiring Person if such person: (x) becomes the owner of outstanding Shares
of the Common Stock of the Company representing 20% or more of the voting
power of the Company by means of an acquisition of shares of Common Stock
directly from the Company if such acquisition is approved by a majority of the
Board of Directors of the Company (unless such Person was an Acquiring Person
prior to such acquisition); (y) becomes the owner of Common Stock representing
20% or more of the voting power of the Company following an acquisition of the
Company's voting securities by the Company, unless such person subsequently
acquires additional voting securities of the Company (other than by means of a
stock dividend, stock split, recapitalization or similar event); or (z) has
become an Acquiring Person inadvertently and divests promptly a number of
voting securities so as to no longer be an Acquiring Person.
The Rights are not exercisable until the Distribution Date. The Rights
will expire at the close of business on May 24, 2009, unless earlier redeemed
or exchanged by the Company, as described below.
The Purchase Price payable, the number of shares of Preferred Stock or
other securities or property issuable, upon exercise of the Rights and the
number of Rights outstanding are subject to adjustment from time to time to
prevent dilution (i) in the event of a stock dividend on, or a subdivision,
combination or reclassification of the Preferred Stock, (ii) upon the
distribution to holders of Preferred Stock of rights or warrants to subscribe
for shares of Preferred Stock or securities convertible into Preferred Stock
at less than the then current market price of the Preferred Stock, or (iii)
upon the distribution to holders of Preferred Stock of evidences of
indebtedness, cash or assets (excluding regular periodic cash dividends out of
earnings or retained earnings or dividends payable in Preferred Stock) or of
convertible securities subscription rights or warrants (other than those
referred to above).
In the event that, following the Distribution Date, the Company is
acquired in a merger or other business combination transaction in which the
Company is not the surviving corporation or in which the Common Stock is
exchanged or changed or 50% or more of the Company's assets or earning power
is sold (in one transaction or a series of transactions), proper provision
shall be made so that each holder of a Right shall thereafter have the right
to receive, in lieu of shares of Preferred Stock, upon the exercise of the
Right and payment of the Purchase Price, that number of shares of common stock
C-2
of the surviving or purchasing company (or, in certain cases, one of its
affiliates) which at the time of such transaction would have a market value of
two times the Purchase Price (such right being called the "Merger Right").
In the event that any person shall become an Acquiring Person and
subject to the availability of Common Stock, proper provision shall be made so
that each holder of a Right will thereafter have the right to receive, in lieu
of shares of Preferred Stock, upon exercise that number of shares (or
fractional shares) of Common Stock having a market value of two times the
Purchase Price, subject to the availability of a sufficient number of treasury
shares or authorized but unissued shares (such right being called the
"Subscription Right"). The holder of a Right will continue to have the Merger
Right unless and until such holder exercises the Subscription Right.
Any Rights that are beneficially owned by an Acquiring Person or an
Affiliate or an Associate of an Acquiring Person will become null and void
upon the occurrence of any of the events giving rise to the exercisability of
the Merger Right or the Subscription Right and any holder of such Rights will
have no right to exercise such Rights from and after the occurrence of such an
event insofar as they relate to the Merger Right or the Subscription Right.
With certain exceptions, no adjustments in the Purchase Price will be
required until cumulative adjustments require an adjustment of at least 1% in
such Purchase Price. No fractional shares will be issued. In lieu of
fractional shares, an adjustment in cash will be made based on the market
price of the Preferred Stock or the Common Stock as the case may be on the
last trading date prior to the date of exercise.
At any time prior to a Person becoming an Acquiring Person or May 24,
2009, the Company's Board of Directors may elect to redeem the Rights in
whole, but not in part, at a price of $.01 per Right and prior to an event
giving rise to the Merger Right (i) following a change in a majority of the
Directors of the Company or (ii) following the Stock Acquisition Date,
provided that either (a) the Acquiring Person reduces its beneficial ownership
to less than 20% of the voting power of the Company in a manner satisfactory
to the Board of Directors and there are no more Acquiring Persons, or (b) such
redemption is incidental to a merger or other business combination involving
the Company but not involving the Acquiring Person. Immediately upon the
action of the Board of Directors electing to redeem the Rights, the Company
shall make announcement thereof, and the right to exercise the Rights will
terminate and the only right of the holders of Rights will be to receive the
redemption price.
At any time after a Person becomes an Acquiring Person but prior to such
time that any Person becomes the beneficial owner of 50% or more of the
outstanding shares of the Company's Common Stock, the Company may elect to
effect a full or partial exchange of Rights for the Company's Common Stock at
an initial exchange ratio of one share of Common Stock for each Right
exchanged. Alternatively, the Company may elect to effect the exchange of
Rights using Preferred Stock at an initial exchange ratio of one one-hundredth
of a share of Preferred Stock for each Right exchanged.
C-3
The Preferred Stock purchasable upon exercise of the Rights will be
non-redeemable and junior to any other series of preferred stock the Company
may issue (unless otherwise provided in the terms of such stock). Each share
of Preferred Stock will have a preferential dividend in an amount equal to the
greater of $1.00 per share or 100 times any dividend declared on each share of
Common Stock. In the event of liquidation, the holders of Preferred Stock will
receive a preferred liquidation payment equal to the greater of $1.00 or 100
times the payment made per each share of Common Stock. Each one one-hundredth
of a share of Preferred Stock will have one vote, voting together with the
shares of Common Stock. In the event of any merger, consolidation or other
transaction in which shares of Common Stock are exchanged, each share of
Preferred Stock will be entitled to receive 100 times the amount and type of
consideration received per share of Common Stock. The rights of the Preferred
Stock as to dividends, liquidation and voting, and in the event of mergers and
consolidations, are protected by customary anti-dilution provisions.
Fractional shares of Preferred Stock in integral multiples of one
one-hundredth of a share of Preferred Stock will be issuable; however, the
Company may elect to distribute depositary receipts in lieu of such fractional
shares. In lieu of fractional shares other than fractions that are multiples
of one one-hundredth of a share, an adjustment in cash will be made based on
the market price of the Preferred Stock on the last trading date prior to the
date of exercise.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company, including, without limitation, the
right to vote or to receive dividends.
A copy of the Rights Agreement has been filed with the Securities and
Exchange Commission as an Exhibit to a Registration Statement on Form 8-A. A
copy of the Rights Agreement is available free of charge from the Company.
This summary description of the Rights does not purport to be complete and is
qualified in its entirety by reference to the Rights Agreement, which is
incorporated herein by reference.
C-4
