THERAGENICS CORPORATION and COMPUTERSHARE INVESTOR SERVICES, LLC AMENDED AND RESTATED RIGHTS AGREEMENT Dated as of February 14, 2007
Exhibit
99.1
THERAGENICS
CORPORATION
and
COMPUTERSHARE
INVESTOR SERVICES, LLC
AMENDED
AND RESTATED RIGHTS AGREEMENT
Dated
as
of February 14, 2007
TABLE
OF
CONTENTS
|
Page
|
||
|
RECITALS
|
1
|
|
|
Section
1.
|
Certain
Definitions
|
2
|
|
Section
2.
|
Appointment
of Rights Agent
|
8
|
|
Section
3.
|
Issue
of Right Certificates
|
9
|
|
Section
4.
|
Form
of Right Certificates
|
10
|
|
Section
5.
|
Countersignature
and Registration
|
12
|
|
Section
6.
|
Transfer,
Split Up, Combination and Exchange of Right Certificates; Mutilated,
Destroyed, Lost or Stolen Right Certificates
|
13
|
|
Section
7.
|
Exercise
of Rights; Purchase Price; Expiration Date of Rights
|
15
|
|
Section
8.
|
Cancellation
and Destruction of Right Certificates
|
18
|
|
Section
9.
|
Company
Covenants Concerning Securities and Rights
|
19
|
|
Section
10.
|
Record
Date
|
21
|
|
Section
11.
|
Adjustment
of Purchase Price, Number and Kind of Securities or Number of
Rights
|
22
|
|
Section
12.
|
Certificate
of Adjusted Purchase Price or Number of Securities
|
33
|
|
Section
13.
|
Consolidation,
Merger or Sale or Transfer of Assets or Earning Power
|
33
|
|
Section
14.
|
Fractional
Rights and Fractional Securities
|
38
|
|
Section
15.
|
Rights
of Action
|
39
|
|
Section
16.
|
Agreement
of Rights Holders
|
40
|
|
Section
17.
|
Right
Certificate Holder Not Deemed a Shareholder
|
41
|
|
Section
18.
|
Concerning
the Rights Agent
|
42
|
|
Section
19.
|
Merger
or Consolidation or Change of Name of Rights Agent
|
43
|
|
Section
20.
|
Duties
of Rights Agent
|
44
|
|
Section
21.
|
Change
of Rights Agent
|
46
|
|
Section
22.
|
Issuance
of New Right Certificates
|
48
|
|
Section
23.
|
Redemption
|
49
|
|
Section
24.
|
Notice
of Certain Events
|
50
|
|
Section
25.
|
Notices
|
51
|
|
Section
26.
|
Supplements
and Amendments
|
52
|
|
Section
27.
|
Exchange
|
53
|
|
Section
28.
|
Successors;
Certain Covenants
|
55
|
|
Section
29.
|
Benefits
of this Agreement
|
55
|
|
Section
30.
|
Determinations
and Actions by the Board of Directors, etc.
|
55
|
|
Section
31.
|
Severability
|
56
|
|
Section
32.
|
Governing
Law
|
56
|
|
Section
33.
|
Counterparts
|
57
|
|
Section
34.
|
Descriptive
Headings
|
57
|
|
Section
35.
|
Force
Majeure
|
57
|
|
Exhibit
A
|
Form
of Right Certificate
|
A-1
|
|
Exhibit
B
|
Summary
of Rights to Purchase Common Shares
|
B-1
|
AMENDED
AND RESTATED RIGHTS AGREEMENT
This
AMENDED AND RESTATED RIGHTS AGREEMENT, dated as of February 14, 2007 (this
“Agreement”), is made and entered into by and between Theragenics Corporation, a
Delaware corporation (the “Company”), and Computershare Investor Services, LLC,
a Delaware limited liability company (the “Rights Agent”).
RECITALS
WHEREAS,
the Company and SunTrust Bank, Atlanta were party to that certain Rights
Agreement, dated as of February 17, 1997, (the “Prior Agreement”) ;
WHEREAS,
the Rights Agent is the successor to the corporate trust business of SunTrust
Bank, Atlanta, and accordingly the Rights Agreement became the successor
Rights
Agent under the Prior Agreement;
WHEREAS,
on February 13, 1997, the Board of Directors of the Company authorized
and
declared a dividend distribution of one right (“Right”) for each share of Common
Stock, par value $.01 per share, of the Company (a “Common Share”) outstanding
as of the Close of Business (as hereinafter defined) on February 28, 1997,
(the
“Record Date”), each Right initially representing the right to purchase one
Common Share, upon the terms and subject to the conditions of the Prior
Agreement, and further authorized and directed the issuance of one Right
with
respect to each Common Share issued or delivered by the Company (whether
originally issued or delivered from the Company’s treasury) after the Record
Date but prior to the earlier of the Distribution Date (as hereinafter
defined)
and the Expiration Date (as hereinafter defined);
WHEREAS,
Section 26 of the Prior Agreement provides that, prior to the Distribution
Date
(as defined therein), the Company and the Rights Agent shall, if the Company
so
directs, supplement or amend any provision of the Prior Agreement without
the
approval of any holders of Rights Certificates (as defined therein) in
order to,
without limitation, shorten or lengthen any time period thereunder or to
supplement or amend the provisions thereunder in any manner which the Company
shall deem desirable;
WHEREAS,
the Board of Directors of the Company has determined that it is in the
best
interest of the Company and its shareholders to amend and restate the Prior
Agreement as set forth herein and the Rights Agent has agreed to the amendment
and restatement of the Prior Agreement as set forth herein;
NOW
THEREFORE, in consideration of the premises and the mutual agreements herein
set
forth, the parties hereby agree that the Prior Agreement is amended and
restated
as follows:
Section
1. Certain
Definitions.
For
purposes of this Agreement, the following terms shall have the meanings
indicated:
(a) “Acquiring
Person” shall mean any Person (other than the Company or any Subsidiary of the
Company or any employee benefit or stock ownership plan of the Company
or of any
Subsidiary of the Company or any entity holding Common Shares for or
pursuant to the terms of any such plan) who or which, together with all
Affiliates and Associates of such Person, shall be the Beneficial Owner
of 20%
or more of the Common Shares then outstanding; provided, however, that
a Person
shall not be deemed to have become an Acquiring Person solely as a result
of a
reduction in the number of Common Shares outstanding or solely as a result
of
any acquisition that is approved in advance by the Board of Directors,
in each
case unless and until such time as (i) such Person or any Affiliate or
Associate
of such Person shall thereafter become the Beneficial Owner of any additional
Common Shares, other than as a result of a stock dividend, stock split
or
similar transaction effected by the Company in which all holders of Common
Shares are treated equally or in a transaction that is approved in advance
by
the Board of Directors, or (ii) any other Person who is the Beneficial
Owner of
any Common Shares shall thereafter become an Affiliate or Associate of
such
Person. Notwithstanding the foregoing, if the Board of Directors determines
in
good faith that a Person who otherwise would be an Acquiring Person as
defined
2
under
the
foregoing provisions of this Section 1(a) has become such inadvertently,
and
such Person has divested or agrees to divest as promptly as practicable
(as
determined by the Board of Directors) a sufficient number of Common Shares
so
that such Person would no longer be an “Acquiring Person” as defined under the
foregoing provisions of this paragraph (a), then such Person shall not
be deemed
to be an Acquiring Person for any purposes of this Agreement unless and
until
such Person shall again become an Acquiring Person as herein
defined.
(b) “Affiliate”
and “Associate” shall have the respective meanings ascribed to such terms in
Rule 12b-2 of the General Rules and Regulations under the Exchange Act,
as in
effect on the date of this Agreement.
(c) A
Person
shall be deemed the “Beneficial Owner” of, and shall be deemed to “beneficially
own,” any securities:
(i) which
such Person or any of such Person’s Affiliates or Associates beneficially owns,
directly or indirectly, as determined pursuant to Rule 13d-3 of the General
Rules of the Exchange Act.
(ii) which
such Person or any of such Person’s Affiliates or Associates, directly or
indirectly, 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 (whether or not in writing), or upon the exercise
of conversion rights, exchange rights, warrants or options, or other rights
(in
each case, other than upon exercise or exchange of the Rights); provided,
however,
that a
Person shall not be deemed the “Beneficial Owner” of, or to “beneficially own”,
securities tendered pursuant to a tender or exchange offer made by or on
behalf
of such Person or any of such Person’s Affiliates or Associates until such
tendered securities are accepted for purchase or exchange; or (B) the right
to
vote or dispose of or has “beneficial ownership” of (as determined pursuant to
Rule 13d-3 of the General Rules of the Exchange Act), including pursuant
to any
agreement, arrangement or understanding (whether or not in writing);
or
3
(iii) of
which
any other Person is the Beneficial Owner, if such Person or any of such
Person’s Affiliates or Associates has any agreement, arrangement or
understanding (whether or not in writing) with such other Person (or any
of such other Person’s Affiliates or Associates) with respect to acquiring,
holding, voting or disposing of any securities of the Company;
provided,
however,
that a
Person shall not be deemed the Beneficial Owner of, or to beneficially
own, any
security (A) if such Person has the right to vote such security pursuant
to an
agreement, arrangement or understanding (whether or not in writing) which
(1)
arises solely from a revocable proxy given to such Person in response to
a
public proxy or consent solicitation made pursuant to, and in accordance
with,
the applicable rules and regulations of the Exchange Act and (2) is not
also
then reportable on Schedule 13D under the Exchange Act (or any comparable
or
successor report), or (B) if such beneficial ownership arises solely as
a result
of such Person’s status as a “clearing agency”, as defined in Section 3(a)(23)
of the Exchange Act; and provided,
further,
that
nothing in this paragraph
(d) shall
cause a Person engaged in business as an underwriter of securities to be
the
Beneficial Owner of, or to beneficially own, any securities acquired through
such Person’s participation in good faith in an underwriting syndicate until the
expiration of 40 calendar days after the date of such acquisition, or such
later date as the Board of Directors of the Company may determine in any
specific case.
4
(e) “Business
Day” shall mean any day other than a Saturday, Sunday or a day on which banking
institutions in the State of Georgia (or such other state in which the
principal
office of the Rights Agent is located) are authorized or obligated by law
or
executive order to close.
(f) “Close
of
Business” on any given date shall mean 5:00 P.M., Eastern time, on such date;
provided,
however,
that if
such date is not a Business Day it shall mean 5:00 P.M., Eastern time,
on the
next succeeding Business Day.
(g) “Common
Shares” when used with reference to the Company shall mean the Common Stock, par
value $.01 per share, of the Company; provided,
however,
that,
if the Company is the continuing or surviving corporation in a transaction
described in Section 11(a)(ii) or Section 13(a)(ii) hereof, “Common Shares” when
used with reference to the Company shall mean the capital stock or equity
security with the greatest aggregate voting power of the Company. “Common
Shares” when used with reference to any Person, other than the Company,
including an Issuer, shall mean shares of the capital stock or equity interests
with the greatest aggregate voting power of such Person or, if such other
Person
is a subsidiary of another Person, the Person or Persons which ultimately
control such first-mentioned Person.
(h) “Company”
shall mean Theragenics Corporation, a Delaware corporation.
(i) “Distribution
Date” shall mean the earliest of: (i) the Close of Business on the tenth
calendar day (or, unless the Distribution Date shall have previously
occurred, such later date as may be specified by the Board of Directors
of the
Company) after the Share Acquisition Date, (ii) the Close of Business on
the
tenth Business Day (or, unless the Distribution Date shall have previously
occurred, such later date as may be specified by the Board of Directors
of the
Company) after the date of the commencement of a tender or exchange offer
by any
Person (other than the Company or any Subsidiary of the Company or any
employee
benefit or stock ownership plan of the Company or of any Subsidiary of
the
5
Company
or any entity holding Common Shares for or pursuant to the terms of any
such
plan), if upon the consummation thereof such Person would be the Beneficial
Owner of 20% or more of the outstanding Common Shares, and (iii) the Close
of
Business on the tenth calendar day after the first date of public announcement
by the Company or an Acquiring Person (by press release, filing made with
the
Securities and Exchange Commission or otherwise) of the first occurrence
of a
Triggering Event; provided,
however,
that if
the earliest of such dates would otherwise occur prior to the Record Date,
the
Distribution Date shall mean the Close of Business on the Record
Date.
(j) “Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended.
(k) “Expiration
Date” shall mean the earliest of (i) the Close of Business on the Final
Expiration Date, (ii) the time at which the Rights are redeemed as provided
in
Section 23 hereof, and (iii) the time at which all exercisable Rights are
exchanged as provided in Section 27 hereof.
(l) “Final
Expiration Date” shall mean February 28, 2017.
(m) “Flip-in
Event” shall mean any event described in clauses (A), (B) or (C) of Section
11(a)(ii) hereof.
(n) “Flip-over
Event” shall mean any event described in subsections (i), (ii), (iii) or (iv)
of
Section 13(a) hereof.
(o) “Issuer”
shall have the meaning set forth in Section 13(b) hereof.
(p) “Nasdaq”
shall mean the Nasdaq Stock Market, Inc.
(q) “NYSE”
shall mean the New York Stock Exchange, Inc.
(r) “Person”
shall mean any individual, firm, corporation, limited liability company,
partnership or other legal entity, and includes any successor (by merger or
otherwise) of such entity.
(s) “Purchase
Price” shall mean initially $20.00 per Common Share and shall be subject to
further adjustment from time to time as provided in this Agreement.
6
(t) “Redemption
Price” shall mean $0.01 per Right, subject to adjustment by resolution of the
Board of Directors of the Company to reflect any stock split, stock dividend
or
similar transaction occurring after the date hereof.
(u) “Right”
shall have the meaning set forth in the Recitals to this Agreement.
(v) “Right
Certificates” shall mean certificates evidencing the Rights, in substantially
the form of Exhibit A attached hereto.
(w) “Rights
Agent” shall mean Computershare Investor Services, LLC unless and until a
successor Rights Agent shall have become such pursuant to the terms of
this
Agreement, and thereafter, “Rights Agent” shall mean such successor Rights
Agent.
(x) “Securities
Act” shall mean the Securities Act of 1933, as amended.
(y) “Share
Acquisition Date” shall mean the earlier of the date of (i) the first date of
public announcement (by press release, a report filed or amended pursuant
to
Section 13(d) of the Exchange Act or otherwise) by the Company or an Acquiring
Person that an Acquiring Person has become such or (ii) the public disclosure
of
facts by the Company or an Acquiring Person indicating that a Person has
become
such; provided, however, that if such Person is determined not to have
become an
Acquiring Person pursuant to the last sentence of Section 1(a), then no
Share
Acquisition Date shall be deemed to have occurred.
(z) “Subsidiary”
when used with reference to any Person shall mean any corporation or other
legal
entity of which a majority of the voting power of the voting equity securities
or equity interests is owned, directly or indirectly, by such Person;
provided,
however,
that
for purposes of Section 13(b) hereof, “Subsidiary” when used with reference to
any Person shall mean any corporation or other legal entity of which at
least
20% of the voting power of the voting equity securities or equity interests
is
owned, directly or indirectly, by such Person.
7
(aa) “Summary
of Rights to Purchase Common Shares” shall mean the Summary of Rights to
Purchase Common Shares, in substantially the form of Exhibit B attached
hereto.
(bb) “Trading
Day” shall mean any day on which the principal national securities exchange
on
which the Common Shares are listed or admitted to trading is open for the
transaction of business or, if the Common Shares are not listed or admitted
to
trading on any national securities exchange, a Business Day.
(cc) “Triggering
Event” shall mean any Flip-in Event or Flip-over Event.
Section
2. Appointment
of Rights Agent.
The
Company hereby appoints the Rights Agent to act as agent for the Company
and the
holders of the Rights (who, in accordance with Section 3 hereof, shall
also be,
prior to the Distribution Date, the holders of the Common Shares) in accordance
with the terms and conditions hereof, and the Rights Agent hereby accepts
such
appointment and hereby certifies that it complies with the requirements
of the
NYSE governing transfer agents and registrars. The Company may from time
to time
act as Co-Rights Agent or appoint such Co-Rights Agents as it may deem
necessary
or desirable, upon ten (10) days’ prior written notice to the Rights Agent. The
Rights Agent shall have no duty to supervise, and in no event be liable for, the
acts or omissions of any such co-Rights Agent. Any actions which may be
taken by
the Rights Agent pursuant to the terms of this Agreement may be taken by
any
such Co-Rights Agent. To the extent that any Co-Rights Agent takes any
action
pursuant to this Agreement, such Co-Rights Agent shall be entitled to all
of the
rights and protections of, and subject to all of the applicable duties
and
obligations imposed upon, the Rights Agent pursuant to the terms of this
Agreement.
8
Section
3. Issue
of Right Certificates.
(a) Until
the
Distribution Date, (i) the Rights shall be evidenced by the certificates
representing Common Shares registered in the names of the record holders
thereof
(which certificates representing Common Shares shall also be deemed to
be Right
Certificates), (ii) the Rights shall be transferable only in connection
with the
transfer of the underlying Common Shares (including a transfer to the Company),
and (iii) the surrender for transfer of any certificates evidencing Common
Shares in respect of which Rights have been issued, shall also constitute
the
transfer of the Rights associated with the Common Shares evidenced by such
certificates.
(b) Promptly
upon request, the Company shall send a copy of this Agreement by first-class,
postage prepaid mail, to any record holder of Common Shares requesting
the same
(or, at the Company’s option, shall send a letter summarizing the terms of the
Rights), at the address of such holder shown on the records of the Company
as of
such date.
(c) Rights
shall be issued by the Company in respect of all Common Shares (other than
Common Shares issued upon the exercise or exchange of any Right) issued
or
delivered by the Company (whether originally issued or delivered from the
Company’s treasury) after the Record Date but prior to the earlier of the
Distribution Date and the Expiration Date. Certificates evidencing such
Common
Shares shall have stamped on, impressed on, printed on, written on or otherwise
affixed to them the following legend or such similar legend as the Company
may
deem appropriate and as is not inconsistent with the provisions of this
Agreement, or as may be required to comply with any applicable law or with
any
rule or regulation made pursuant thereto or with any rule or regulation
of any
stock exchange or transaction reporting system on which the Common Shares
may
from time to time be listed or quoted, or to conform to usage:
9
This
Certificate also evidences and entitles the holder hereof to certain Rights
as
set forth in that certain Amended and Restated Rights Agreement between
Theragenics Corporation and Computershare Investor Services, LLC dated
as of
February 14, 2007 (the “Rights Agreement”), the terms of which are hereby
incorporated herein by reference and a copy of which is on file at the
principal
executive offices of Theragenics Corporation. Under certain circumstances,
as
set forth in the Rights Agreement, such Rights may be redeemed, may expire,
may
be amended or may be evidenced by separate certificates and no longer be
evidenced by this Certificate. Theragenics Corporation will mail to the
holder
of this Certificate a copy of the Rights Agreement without charge promptly
after
receipt of a written request therefor. Under certain circumstances as set
forth
in the Rights Agreement, Rights beneficially owned by an Acquiring Person
or any
Affiliate or Associate of an Acquiring Person (as such terms are defined
in the
Rights Agreement) may become null and void.
With
respect to Right Certificates containing the foregoing legend, until the
earlier
of (i) the Distribution Date or (ii) the Expiration Date, the Rights associated
with the Common Shares represented by such certificates shall be evidenced
by
such certificates alone and registered holders of Common Shares shall also
be
the registered holders of the associated Rights, and the transfer of any
of such
certificates shall also constitute the transfer of the Rights associated
with
the Common Shares represented by such certificates.
(d) As
promptly as practicable after the Distribution Date, the Company shall
prepare
and execute, the Rights Agent will countersign and the Company shall send
or
cause to be sent (and the Rights Agent shall, if requested, send), by
first-class, insured, postage prepaid mail, to each record holder of Common
Shares 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, evidencing
one Right for each Common Share so held, subject to adjustment. As of and
after
the Distribution Date, the Rights shall be evidenced solely by such Right
Certificates. The failure to mail a Right Certificate shall not affect
the
legality or validity of the Rights.
Section
4. Form
of Right Certificates.
| (a) |
The
Right Certificates (and the form of election to purchase and
form of
assignment to be printed on the reverse thereof) shall be substantially
in
the form set forth as Exhibit A hereto with such changes, marks
of
identification or designation and such legends, summaries or
endorsements
printed thereon as the Company may deem
|
10
|
appropriate
(but which does not affect the rights, 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 or with
any rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange or transaction reporting system
on which
the Rights may from time to time be listed or quoted, or to conform
to
usage. The Right Certificate shall be in machine printable format
and in a
form reasonably satisfactory to the Rights Agent. Subject to the
provisions of Sections 11 and 22 hereof, the Right Certificates,
whenever
issued, on their face shall entitle the holders thereof to purchase
such
number of Common Shares as shall be set forth therein at the Purchase
Price set forth therein, but the Purchase Price, the number and
kind of
securities issuable upon exercise of each Right and the number
of Rights
outstanding shall be subject to adjustment as provided
herein.
|
| (b) |
Any
Right Certificate issued hereunder that represents Rights beneficially
owned by (i) an Acquiring Person or any Associate or Affiliate
of an
Acquiring Person, (ii) a transferee of an Acquiring Person (or
any such
Associate or Affiliate) who becomes a transferee after the Acquiring
Person becomes such, or (iii) a transferee of an Acquiring Person
(or of
any such Associate or Affiliate) who becomes a transferee prior
to or
concurrently with the Acquiring Person becoming such and receives
such
Rights pursuant to either (A) a transfer (whether or not for
consideration) from the Acquiring Person to holders of equity interests
in
such Acquiring Person or to any Person with whom such Acquiring
Person has
any continuing agreement, arrangement or understanding regarding
the
transferred Rights or (b) a transfer that the Board of Directors
has
determined is part of a plan, arrangement or understanding that
has the
primary purpose or effects the avoidance of Section 7(d) hereof,
and any
Right Certificate issued pursuant to Section 6 or Section 11 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 or such similar legend as the Company
may
deem appropriate and as is not inconsistent with the provisions
of this
Agreement, or as may be required to comply with any applicable
law or with
any rule or regulation made pursuant thereto, or with any rule
or
regulation of any stock exchange on which the Rights may from time
to time
be listed, or to conform to usage:
|
11
The
Rights represented by this Rights Certificate are or were beneficially
owned by
a Person who was or became an Acquiring Person or an Affiliate or Associate
of
an Acquiring Person (as such terms are defined in the Rights Agreement).
Accordingly, this Right Certificate and the Rights represented hereby may
become
null and void in the circumstances specified in the Rights Agreement.
The
provisions of Section 7(d) hereof shall be operative regardless of whether
the
foregoing legend is contained on any Right Certificate.
Section
5. Countersignature
and Registration.
(a) The
Right
Certificates shall be executed on behalf of the Company by its Chairman
of the
Board, Chief Executive Officer, Chief Financial Officer, or any Executive
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 shall be manually countersigned
by
the Rights Agent, either manually or by facsimile signature, and shall
not be
valid for any purpose unless so countersigned. In case any officer of the
Company who shall have signed any of the Right Certificates shall cease
to be
such officer of the Company before countersignature by the Rights Agent
and
issuance and delivery by the Company, such Right Certificates, nevertheless,
may
be countersigned by the Rights Agent, and issued and delivered by the Company
with the same force and effect as though the person who signed such Right
Certificates had not ceased to be such officer of the Company; and any
Right
Certificate may be signed on behalf of the Company by any person who, at
the
actual date of the execution of such Right Certificate, shall be a proper
officer of the Company to sign such Right Certificate, although at the
date of
the execution of this Rights Agreement any such person was not such an
officer.
12
(b) Following
the Distribution Date, the Rights Agent shall keep or cause to be kept,
at the
principal office of the Rights Agent designated for such purpose and at
such
other offices as may be required to comply with any applicable law or with
any
rule or regulation made pursuant thereto or with any rule or regulation
of any
stock exchange or any transaction reporting system on which the Rights
may from
time to time be listed or quoted, books for registration and transfer of
the
Right Certificates issued hereunder. Such books shall show the names and
addresses of the respective holders of the Right Certificates, the number
of
Rights evidenced on its face by each of the Right Certificates and the
date of
each of the Right Certificates.
Section
6. Transfer,
Split Up, Combination and Exchange of Right Certificates; Mutilated, Destroyed,
Lost or Stolen Right Certificates.
(a) Subject
to the provisions of Sections 4(b), 7(d) and 14 hereof, at any time after
the
Close of Business on the Distribution Date and prior to the Expiration
Date, any
Right Certificate or Right Certificates representing exercisable Rights
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
Common Shares (or other securities, as the case may be) as the Right Certificate
or Right Certificates surrendered then entitled such holder (or former
holder in
the case of a transfer) to purchase. Any registered holder desiring to
transfer,
split up, combine or exchange Right Certificates shall make such request
in
writing delivered to the Rights Agent, and shall surrender the Right Certificate
or Right Certificates to be transferred, split up, combined or exchanged
at the
principal office of the Rights Agent designated for such purpose. Neither
the
Rights Agent nor the Company shall be obligated to take any action whatsoever
with respect to the transfer of any such surrendered Right Certificate
until the
registered holder shall have properly completed and signed the certificate
contained in the form of assignment on the reverse side of such Right
13
Certificate
and shall have provided such additional evidence of the identity of the
Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates
thereof as the Company or the Rights Agent shall reasonably request. Thereupon
or as promptly as practicable thereafter, subject to the provisions of
Sections
4(b), 7(d) and 14 hereof, the Company shall prepare, execute and deliver
to the
Rights Agent, and the Rights Agent shall countersign and deliver a Right
Certificate or Right Certificates, as the case may be, as so requested.
The
Company may require payment of a sum sufficient to cover any tax or governmental
charge that may be imposed in connection with any transfer, split up,
combination or exchange of Right Certificates.
(b) Upon
receipt by the Company and the Rights Agent of evidence reasonably satisfactory
to them of the loss, theft, destruction or mutilation of a Right Certificate,
of
indemnity or security reasonably satisfactory to them, and, if requested
by the
Company, reimbursement to the Company and the Rights Agent of all reasonable
expenses incidental thereto, and upon surrender to the Rights Agent and
cancellation of the Right Certificate if mutilated, the Company shall prepare,
execute and deliver a new Right Certificate of like tenor to the Rights
Agent
and the Rights Agent shall countersign and deliver such new Right Certificate
to
the registered holder in lieu of the Right Certificate so lost, stolen,
destroyed or mutilated.
14
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 including, without limitation,
any
restrictions on exercisability set forth in Section 7(d)) in whole or in
part at
any time after the Close of Business on the Distribution Date and prior
to the
Expiration 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 or offices of the Rights Agent designated for such
purpose,
together with payment in cash, in lawful money of the United States of
America
by certified check or bank draft payable to the order of the Company equal
to
the sum of (i) the aggregate Purchase Price for the total number of securities
as to which such surrendered Rights are exercised and (ii) an amount equal
to
any applicable transfer tax required to be paid by the holder of such Right
Certificate in accordance with the provisions of Section 9 hereof. In lieu
of
the cash payment referred to in the immediately preceding sentence, following
the occurrence of a Triggering Event the registered holder of a Right
Certificate may exercise the Rights evidenced thereby (except as otherwise
provided herein) in whole or in part upon surrender of the Right Certificate
as
described above together with an election to exercise such Rights without
payment of cash on the reverse side thereof duly completed. With respect
to any
Rights as to which such an election is made, the holder shall receive a
number
of Common Shares or other securities having a value equal to the difference
between (i) the value of the Common Shares or other securities that would
have
been issuable upon payment of the cash amount as described above, and (ii)
the
sum of items (i) and (ii) above. For purposes of this Section 7(a), the
value of
any Common Share or other security shall be the current per share market
price
of a Common Share (determined pursuant to Section 11(d) hereof) on the
Trading
Day immediately preceding the date of the first occurrence of a Triggering
Event.
15
(b) Upon
receipt of a Right Certificate representing exercisable Rights with the
form of
election to purchase duly executed, accompanied by either payment as described
in Section 7(a) above or a duly completed election to exercise without
payment
of cash, the Rights Agent shall promptly (i) requisition from any transfer
agent
of the Common Shares (or make available, if the Rights Agent is the transfer
agent) certificates representing the number of Common Shares to be purchased
(and the Company hereby irrevocably authorizes and directs its transfer
agent to
comply with all such requests), (ii) after receipt of such certificates,
cause
the same to be delivered to or upon the order of the registered holder
of such
Right Certificate, registered in such name or names as may be designated
by such
holder, (iii) when appropriate, requisition from the Company or any transfer
agent therefor (or make available, if the Rights Agent is the transfer
agent)
certificates representing the number of equivalent common shares to be
issued in
lieu of the issuance of Common Shares in accordance with the provisions
of
Section 11(a)(iii) hereof, (iv) when appropriate, after receipt of such
certificates, cause the same to be delivered to or upon the order of the
registered holder of such Right Certificate, registered in such name or
names as
may be designated by such holder, (v) when appropriate, requisition from
the
Company the amount of cash to be paid in lieu of the issuance of fractional
shares in accordance with the provisions of Section 14 hereof or in lieu
of the
issuance of Common Shares in accordance with the provisions of Section
11(a)(iii) hereof, (vi) when appropriate, after receipt, deliver such cash
to or
upon the order of the registered holder of such Right Certificate, and
(vii)
when appropriate, deliver any due ▇▇▇▇ or other instrument provided to
the
Rights Agent by the Company for delivery to the registered holder of such
Right
Certificate as provided by Section 11(l) hereof.
16
(c) In
case
the registered holder of any Right Certificate shall exercise less than
all the
Rights evidenced thereby, the Company shall prepare, execute and deliver
a new
Right Certificate evidencing Rights equivalent to the Rights remaining
unexercised and the Rights Agent shall countersign and deliver such new
Right
Certificate to the registered holder of such Right Certificate or to his
duly
authorized assigns, subject to the provisions of Section 14 hereof.
(d) Notwithstanding
anything in this Agreement to the contrary, from and after the later of
the
Distribution Date and the first occurrence of a Triggering Event, any Rights
beneficially owned by (i) an Acquiring Person or an Associate or Affiliate
of an
Acquiring Person, (ii) a transferee of an Acquiring Person (or of any such
Associate or Affiliate) who becomes a transferee after the Acquiring Person
becomes such, or (iii) a transferee of an Acquiring Person (or of any such
Associate or Affiliate) who becomes a transferee prior to or concurrently
with
the Acquiring Person becoming such and receives such Rights pursuant to
either
(A) a transfer (with or without consideration in respect thereof) from
an
Acquiring Person to holders of equity interests in such Acquiring Person
or to
any Person with whom the Acquiring Person has any continuing agreement,
arrangement or understanding regarding the transfer of Rights, or (B) a
transfer
that the Board of Directors has determined is part of a plan, arrangement
or
understanding that has a primary purpose or effects the avoidance of this
Section 7(d), shall become null and void without further action, no holder
of
such Rights shall have any rights whatsoever with respect to such Rights,
whether under any provision of this Agreement or otherwise, and any Right
Certificate delivered to the Rights Agent for transfer to an Acquiring
Person or
any Affiliate or Associate thereof shall be cancelled. The Company shall
use
reasonable efforts to ensure that the provisions of this Section 7(d) and
Section 4(b) hereof are complied with, but shall have no liability to any
holder
of Right Certificates or other Person as a result of its failure to make
any
determinations with respect to an Acquiring Person or its Affiliates, Associates
or transferees hereunder. Upon
17
the
occurrence of a Flip-in Event, no Right Certificate that represents Rights
that
are or have become void pursuant to the provisions of this Section 7(d)
will
thereafter be issued pursuant to Section 3 or Section 6, and any Right
Certificate delivered to the Rights Agent that represents Rights that are
or
have become void pursuant to the provisions of this Section 7(d) shall
be
cancelled. Upon the occurrence of a Flip-over Event, any Rights that shall
not
have been previously exercised pursuant to this Section 7(d) shall thereafter
be
exercisable only pursuant to Section 13 and not pursuant to this Section
7(d).
(e) 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 any
purported
transfer, split up, combination or exchange of any Right Certificate pursuant
to
Section 6 hereof or exercise of a Right Certificate as set forth in this
Section
7 unless the registered holder of such Right Certificate shall have (i)
completed and signed the certificate following the form of assignment or
form of
election to purchase, as applicable, set forth on the reverse side of the
Right
Certificate surrendered for such transfer, split up, combination, exchange
or
exercise, and (ii) provided such additional evidence of the identity of
the
Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates
thereof as the Company shall have reasonably requested.
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
stock transfer agents, be delivered to the Rights Agent for cancellation
or in
cancelled form, or, if surrendered to the Rights Agent, shall be cancelled
by
it, and no Right Certificates shall be issued in lieu thereof except as
expressly permitted by this Agreement. The Company shall deliver to the
Rights
Agent for cancellation and retirement, and the Rights Agent shall so cancel
and
retire, any other Right Certificate purchased or acquired by the Company
otherwise than upon the exercise thereof. The Rights
18
Agent
shall deliver all cancelled Right Certificates to the Company, or shall,
at the
written request of the Company, destroy such cancelled Right Certificates,
and
in such case shall deliver a certificate of destruction thereof to the
Company.
Section
9. Company
Covenants Concerning Securities and Rights.
The
Company covenants and agrees that:
(a) So
long
as the Common Shares issuable upon the exercise of the Rights may be listed
on a
national securities exchange, it shall endeavor to cause, from and after
such
time as the Rights become exercisable, all securities reserved for issuance
upon
the exercise of Rights to be listed on such exchange upon official notice
of
issuance.
(b) It
shall
take all such action as may be necessary to ensure that all Common Shares
and/or
other securities delivered upon exercise of Rights, at the time of delivery
of
the certificates for such securities shall be (subject to payment of the
Purchase Price) duly authorized, validly issued, fully paid and nonassessable
securities.
(c) It
shall
pay when due and payable any and all U.S. federal and state transfer taxes
and
charges that may be payable in respect of the issuance or delivery of the
Right
Certificates and of any certificates representing securities issued upon
the
exercise of Rights; provided,
however,
that
the Company shall not be required to pay any transfer tax or charge which
may be
payable in respect of any transfer or delivery of Right Certificates to
a person
other than, or the issuance or delivery of certificates representing securities
issued upon the exercise of Rights in a name other than that of, the registered
holder of the Right Certificate evidencing Rights surrendered for exercise,
or
to issue or deliver any certificates representing securities issued 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 it has been established to the Company’s reasonable
satisfaction that no such tax is due.
19
(d) It
shall
use its best efforts (i) to file on an appropriate form, as soon as practicable
following the later of the first occurrence of a Triggering Event or the
Distribution Date, a registration statement under the Securities Act with
respect to the securities issuable upon exercise of the Rights, (ii) to
cause
such registration statement to become effective as soon as practicable
after
such filing, and (iii) to cause such registration statement to remain effective
(with a prospectus at all times meeting the requirements of the Act) until
the
earlier of (A) the date as of which the Rights are no longer exercisable
for
such securities and (B) the Expiration Date. The Company shall also take
such
action as may be appropriate under, or to ensure compliance with, the securities
or “blue sky” laws of the various states in connection with the exercisability
of the Rights. The Company may temporarily suspend, for a period of time
after
the date set forth in clause (i) of the first sentence of this Section
9(d), the
exercisability of the Rights in order to prepare and file such registration
statement and to permit it to become effective. Upon any such suspension,
the
Company shall issue a public announcement stating that the exercisability
of the
Rights has been temporarily suspended, as well as a public announcement
at such
time as the suspension is no longer in effect. In addition, if the Company
shall
determine that a registration statement should be filed under the Securities
Act
or any state securities laws following the Distribution Date, the Company
may
temporarily suspend the exercisability of the Rights in each relevant
jurisdiction until such time as a registration statement has been declared
effective and, upon any such suspension, the Company shall issue a public
announcement stating that the exercisability of the Rights has been temporarily
suspended, as well as a public announcement at such time as the suspension
is no
longer in effect. Notwithstanding anything in this Agreement to the contrary,
the Rights shall not be exercisable in any jurisdiction if the requisite
registration or qualification in such jurisdiction shall not have been
effected
or the exercise of the Rights shall not be permitted under applicable
law.
20
(e) Notwithstanding
anything in this Agreement to the contrary, after the Distribution Date
it shall
not, except as permitted by Section 23, 26 or 27 hereof, take (or permit
any
Subsidiary to take) any action if at the time such action is taken it is
reasonably foreseeable that such action will eliminate or otherwise diminish
the
benefits intended to be afforded by the Rights.
(f) In
the
event that the Company is obligated to issue other securities of the Company
and/or pay cash pursuant to Sections 11, 13 or 14 hereof, it shall make
all
arrangements necessary so that such other securities and/or cash are available
for distribution by the Rights Agent, if and when appropriate.
Section
10. Record
Date.
Each
Person in whose name any certificate representing Common Shares is issued
upon
the exercise of Rights shall for all purposes be deemed to have become
the
holder of record of the Common Shares represented thereby on, and such
certificate shall be dated, the date upon which the Right Certificate evidencing
such Rights was duly surrendered and payment of the Purchase Price (and
all
applicable transfer taxes) was made; provided,
however,
that if
the date of such surrender and payment is a date upon which the Common
Shares
transfer books of the Company are closed, such Person shall be deemed to
have
become the record holder of such securities on, and such certificate shall
be
dated, the next succeeding Business Day on which the Common Shares transfer
books of the Company are open. Prior to the exercise of the Rights evidenced
thereby, the holder of a Right Certificate shall not be entitled to any
rights
of a shareholder of the Company with respect to securities 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.
21
Section
11. Adjustment
of Purchase Price, Number and Kind of Securities or Number of
Rights.
The
Purchase Price, the number and kind of securities issuable upon exercise
of each
Right and the number of Rights outstanding are subject to adjustment from
time
to time as provided in this Section 11. Notwithstanding the foregoing,
no
adjustments to the Purchase Price pursuant to this Section 11 shall be
made for
the occurrence of any event which occurred prior to February 14, 2007 that
otherwise would have required an adjustment to the Purchase Price pursuant
to
this Section 11.
(a) (i)In
the
event that the Company shall at any time after the date of this Agreement
(A)
effect a dividend on the Common Shares payable in Common Shares, (B) subdivide
the outstanding Common Shares, (C) combine the outstanding Common Shares
into a
smaller number of shares or (D) issue any shares of its capital stock in
a
reclassification of the Common Shares (including any such reclassification
in
connection with a consolidation or merger in which the Company is the continuing
or surviving corporation), except as otherwise provided in Section 11(a),
the
Purchase Price in effect at the time of the record date for such dividend
or on
the effective date of such subdivision, combination or reclassification,
and/or
the number and/or kind of shares of capital stock issuable on such date
upon
exercise of a Right, shall be proportionately adjusted so that the holder
of any
Right exercised after such time shall be entitled to receive upon payment
of the
Purchase Price then in effect the aggregate number and kind of shares of
capital
stock which, if such Right had been exercised immediately prior to such
date and
at a time when the Common Shares transfer books of the Company were open,
the
holder of such Right would have owned upon such exercise (and, in the case
of a
reclassification, would have retained after giving effect to such
reclassification) and would have been entitled to receive by virtue of
such
22
dividend,
subdivision, combination or reclassification. If an event occurs which
would
require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii)
hereof or Section 13 hereof, the adjustment provided for in this Section
11(a)(i) shall be in addition to, and shall be made prior to, any adjustment
required pursuant to Section 11(a)(ii) or Section 13 hereof.
(ii) Subject
to the provisions of Section 27 hereof, in the event that:
(A) any
Acquiring Person or any Affiliate or Associate of any Acquiring Person,
at any
time after the date of this Agreement, directly or indirectly, shall (1)
merge
into the Company or otherwise combine with the Company and the Company
shall be
the continuing or surviving corporation of such merger or combination (other
than in a transaction subject to Section 13 hereof), (2) merge or otherwise
combine with any Subsidiary of the Company, (3) in one or more transactions
(other than in connection with the exercise or exchange of Rights or the
exercise or conversion of securities exercisable or exchangeable for or
convertible into shares of any class of capital stock of the Company or
any of
its Subsidiaries) transfer any cash, securities, or any other assets to
the
Company or any of its Subsidiaries in exchange (in whole or in part) for
shares
of any class of capital stock of the Company or any of its Subsidiaries
or for
securities exercisable or exchangeable for or convertible into shares of
any
class of capital stock of the Company or any of its Subsidiaries, or otherwise
obtain from the Company or any of its Subsidiaries, with or without
consideration, any additional shares of any class of capital stock of the
Company or any of its Subsidiaries or securities exercisable or exchangeable
for
or convertible into shares of any class of capital stock of the Company
or any
of its Subsidiaries (other than as part of a pro rata distribution to all
holders of such shares of any class of capital stock of the Company, or
any of
its Subsidiaries), (4) sell, purchase, lease, exchange, mortgage, pledge,
transfer or otherwise dispose (in one or more transactions), to, from,
with or
of, as the case may be, the
23
Company
or any of its Subsidiaries (other than in a transaction subject to Section
13
hereof ), assets, including securities, on terms and conditions less favorable
to the Company than the Company would be able to obtain in arm’s-length
negotiation with an unaffiliated third party, (5) receive any compensation
from the Company or any of its Subsidiaries other than compensation as
a
director or for full-time employment as a regular employee, in either case,
at
rates in accordance with the Company’s (or its Subsidiaries’) past practices, or
(6) receive the benefit, directly or indirectly (except proportionately
as a
shareholder), of any loans, advances, guarantees, pledges or other financial
assistance or any tax credits or other tax advantage provided by the Company
or
any of its Subsidiaries; or
(B) during
such time as there is an Acquiring Person, there shall be any reclassification
of securities of the Company (including any reverse stock split), or
recapitalization of the Company, or any merger or consolidation of the
Company
with any of its Subsidiaries or any other transaction or series of transactions
involving the Company or any of its Subsidiaries (whether or not with or
into or
otherwise involving an Acquiring Person), other than a transaction subject
to
Section 13 hereof, which has the effect, directly or indirectly, of increasing
by more than 1% the proportionate share of the outstanding shares of any
class
of equity securities of the Company or of securities exercisable or exchangeable
for or convertible into equity securities of the Company or any of its
Subsidiaries of which an Acquiring Person or any Affiliate or Associate
of any
Acquiring Person, is the Beneficial Owner; or
24
(C) any
Person becomes an Acquiring Person; then, and in each such case, proper
provision shall be made so that each holder of a Right, except as provided
below, shall thereafter have a right to receive, upon exercise thereof
in
accordance with the terms of this Agreement at an exercise price per Right
equal
to the product of the then-current Purchase Price multiplied by the number
of
Common Shares for which a Right was exercisable immediately prior to the
first
occurrence of a Triggering Event, such number of Common Shares as shall
equal
the result obtained by (x) multiplying the then-current Purchase Price
by the
number of Common Shares for which a Right was exercisable immediately prior
to
the first occurrence of a Triggering Event, and dividing that product by
(y) 50%
of the current per share market price of the Common Shares (determined
pursuant
to Section 11(d) hereof) on the date of the first occurrence of a Triggering
Event.
(iii) Upon
the
occurrence of the Distribution Date or a Flip-in Event, if there shall
not be
sufficient Common Shares authorized but unissued or issued but not outstanding
to permit the issuance of all the Common Shares issuable in accordance
with the
provisions hereof upon the exercise of a Right, the Board of Directors
of the
Company shall use its best efforts promptly to authorize and, subject to
the
provisions of Section 9(d) hereof, make available for issuance additional
Common
Shares or other equity securities of the Company having equivalent voting
rights
and an equivalent value (as determined in good faith by the Board of Directors)
to the Common Shares (for purposes of this Section 11(a)(iii), “equivalent
common shares”). In the event that equivalent common shares are so authorized,
upon the exercise of a Right in accordance with the provisions of Section
7
hereof, the registered holder shall be entitled to receive (A) Common Shares,
to
the extent any are available and (B) a number of equivalent common shares,
which
the Board of Directors shall have determined in good faith to have a value
equivalent to the excess of (x) the aggregate current per share market
value of
all the Common Shares issuable in accordance with subsection (ii) hereof
upon
the exercise of a Right (the “Exercise Value”) over (y) the aggregate current
per share market value of any Common Shares available for issuance upon
the
exercise of
25
such
Right; provided,
however,
that if
at any time after 90 calendar days after the first occurrence of a Flip-in
Event, there shall not be sufficient Common Shares and/or equivalent common
shares available for issuance upon the exercise of a Right, then the Company
shall be obligated to deliver, upon the surrender of such Right and without
requiring payment of the Purchase Price, Common Shares (to the extent
available), equivalent common shares (to the extent available) and then
cash (to
the extent permitted by applicable law and any agreements or instruments
to
which the Company is a party in effect immediately prior to the first occurrence
of any Flip-in Event), which securities and cash shall have an aggregate
value
equal to the excess of (1) the Exercise Value over (2) the product of the
then-current Purchase Price multiplied by the number of Common Shares for
which
a Right was exercisable immediately prior to the first occurrence of a
Triggering Event. To the extent that any legal or contractual restrictions
prevent the Company from paying the full amount of cash payable in accordance
with the foregoing sentence, the Company shall pay to holders of the Rights
as
to which such payments are being made all amounts which are not then restricted
on a pro rata basis and shall continue to make payments on a pro rata basis
as
funds become available until the full amount due to each such Rights holder
has
been paid.
(b) In
the
event that the Company shall fix a record date for the issuance of rights,
options or warrants to all holders of Common Shares entitling them (for
a period
expiring within 45 calendar days after such record date) to subscribe for
or
purchase Common Shares (or securities having equivalent rights, privileges
and
preferences as the Common Shares (for purposes of this Section 11(b),
“equivalent common shares”)) or securities convertible into Common Shares or
equivalent common shares at a price per Common Share or equivalent common
share
(or having a conversion price per share, if a security convertible into
Common
Shares or equivalent common shares) less than the current per share market
price
of the Common Shares (determined pursuant to Section 11(d) hereof) on such
record date, the Purchase Price to be in effect after such record date
shall be
determined by multiplying the Purchase Price in effect immediately prior
to such
record date by a fraction, the numerator of which shall be the number of
Common
Shares outstanding on such record date plus the number of Common Shares
which
the aggregate offering price of the total number of Common Shares and/or
equivalent common shares so to be offered (and/or the aggregate initial
conversion price of the convertible securities so to be offered) would
purchase
at such current per share market price and the denominator of which shall
be the
number
26
of
Common
Shares outstanding on such record date plus the number of additional Common
Shares and/or equivalent common shares to be offered for subscription or
purchase (or into which the convertible securities so to be offered are
initially convertible). In case such subscription price may be paid in
a
consideration part or all of which shall be in a form other than cash,
the value
of such consideration shall be as determined in good faith by the Board
of
Directors, whose determination shall be described in a statement filed
with the
Rights Agent. Common Shares owned by or held for the account of the Company
shall not be deemed outstanding for the purpose of any such computation.
Such
adjustment shall be made successively whenever such a record date is fixed;
and
in the event that such rights, options or warrants are not so issued, the
Purchase Price shall be adjusted to be the Purchase Price which would then
be in
effect if such record date had not been fixed.
(c) In
the
event that the Company shall fix a record date for the making of a distribution
to all holders of Common Shares (including any such distribution made in
connection with a consolidation or merger in which the Company is the continuing
or surviving corporation) of evidences of indebtedness, cash (other than
a
regular periodic cash dividend), assets, stock (other than a dividend payable
in
Common Shares) or subscription rights, options or warrants (excluding those
referred to in Section 11(b) hereof), the Purchase Price to be in effect
after
such record date shall be determined by multiplying the Purchase Price
in effect
immediately prior to such record date by a fraction, the numerator of which
shall be the current per share market price of the Common Shares (as determined
pursuant to Section 11(d) hereof) on such record date or, if earlier, the
date
on which Common Shares begin to trade on an ex-dividend or when-issued
basis for
such distribution, less the fair market value (as determined in good faith
by
the Board of Directors, whose determination shall
27
be
described in a statement filed with the Rights Agent) of the portion of
the
evidences of indebtedness, cash, assets or stock so to be distributed or
of such
subscription rights, options or warrants applicable to one Common Share,
and the
denominator of which shall be such current per share market price of the
Common
Shares. Such adjustments shall be made successively whenever such a record
date
is fixed; and in the event that such distribution is not so made, the Purchase
Price shall again be adjusted to be the Purchase Price which would then
be in
effect if such record date had not been fixed.
(d) For
the
purpose of any computation hereunder, the “current per share market price” of
Common Shares on any date shall be deemed to be the average of the daily
closing
prices per share of such Common Shares for the 30 consecutive Trading Days
immediately prior to such date; provided,
however,
that in
the event that the current per share market price of the Common Shares
is
determined during a period following the announcement by the issuer of
such
Common Shares of (i) a dividend or distribution on such Common Shares payable
in
such Common Shares or securities convertible into such Common Shares (other
than
the Rights) or (ii) any subdivision, combination or reclassification of
such
Common Shares, and prior to the expiration of 30 Trading Days after the
ex-dividend date for such dividend or distribution, or the record date
for such
subdivision, combination or reclassification, then, and in each such case,
the
current per share market price shall be appropriately adjusted to take
into
account ex-dividend trading or to reflect the current per share market
price per
Common Share equivalent. 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
28
the
NYSE
or, if the Common Shares are not listed or admitted to trading on the NYSE,
as
reported in the principal consolidated transaction reporting system with
respect
to securities listed on the principal national securities exchange on which
the
Common Shares are listed or admitted to trading or, if the Common Shares
are not
listed or admitted to trading on any national securities exchange, the
last
quoted price or, if not so quoted, the average of the high bid and low
asked
prices in the over-the-counter market, as reported by Nasdaq or such other
system then in use, or, if on any such date the Common Shares are not quoted
by
any such organization, the average of the closing bid and asked prices
as
furnished by a professional market maker making a market in the Common
Shares
selected by the Board of Directors. If the Common Shares are not publicly
held
or not so listed or traded, or not the subject of available bid and asked
quotes, “current per share market price” 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.
(e) Except
as
set forth below, no adjustment in the Purchase Price shall be required
unless
such adjustment would require an increase or decrease of at least 1% in
such
price; provided,
however,
that
any adjustments which by reason of this Section 11(e) are not required to
be made shall be carried forward and taken into account in any subsequent
adjustment. All calculations under this Section 11 shall be made to the
nearest
cent or to the nearest one ten-thousandth of a Common Share or other security,
as the case may be. Notwithstanding the first sentence of this Section
11(e),
any adjustment required by this Section 11 shall be made no later than
the
earlier of (i) three years from the date of the transaction which requires
such
adjustment and (ii) the Expiration Date.
29
(f) If
as a
result of an adjustment made pursuant to Section 11(a) hereof, the holder
of any Right thereafter exercised shall become entitled to receive any
securities of the Company other than Common Shares, thereafter the number
of
such other securities 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 Common Shares contained
in
this Section 11, and the provisions of Sections 7, 9, 10 and 13 hereof
with
respect to the Common Shares shall apply on like terms to any such other
securities.
(g) All
Rights originally issued by the Company subsequent to any adjustment made
to the
Purchase Price hereunder shall evidence the right to purchase, at the adjusted
Purchase Price, the number of Common Shares issuable from time to time
hereunder
upon exercise of the Rights, all subject to further adjustment as provided
herein.
(h) Unless
the Company shall have exercised its election as provided in Section 11(i)
hereof, upon each adjustment of the Purchase Price as a result of the
calculations made in Section 11(b) and Section 11(c) hereof made with
respect to a distribution of subscription rights, options or warrants applicable
to Common Shares, 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 Common Shares (calculated to the nearest
one-thousandth a Common Share) obtained by (i) multiplying (x) the number
of
Common Shares issuable upon exercise of a Right immediately prior to this
adjustment by (y) the Purchase Price in effect immediately prior to such
adjustment of the Purchase Price, and (ii) dividing the product so obtained
by
the Purchase Price in effect immediately after such adjustment of the Purchase
Price.
(i) The
Company may elect, on or after the date of any adjustment of the Purchase
Price,
to adjust the number of Rights in substitution for any adjustment in the
number
of Common Shares issuable 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 Common Shares for which a Right was exercisable immediately
prior to such adjustment. Each Right held of record prior to such adjustment
of
the number of Rights shall become that number of
30
Rights
(calculated to the nearest one-thousandth) obtained by dividing the Purchase
Price in effect immediately prior to adjustment of the Purchase Price by
the
Purchase Price in effect immediately after adjustment of the Purchase Price.
The
Company shall make a public announcement of its election to adjust the
number of
Rights, indicating the record date for the adjustment, and, if known at
the
time, the amount of the adjustment to be made. This record date may be
the date
on which the Purchase Price is adjusted or any day thereafter, but, if
the Right
Certificates have been issued, shall be at least 10 calendar days later
than the
date of the public announcement. If Right Certificates have been issued,
upon
each adjustment of the number of Rights pursuant to this Section 11(i),
the
Company shall, as promptly as practicable, cause to be distributed to holders
of
record of Right Certificates on such record date Right Certificates evidencing,
subject to the provisions of Section 14 hereof, the additional Rights to
which
such holders shall be entitled as a result of such adjustment, or, at the
option
of the Company, shall cause to be distributed to such holders of record
in
substitution and replacement for the Right Certificates held by such holders
prior to the date of adjustment, and upon surrender thereof if required
by the
Company, new Right Certificates evidencing all the Rights to which such
holders
shall be entitled after such adjustment. Right Certificates so to be distributed
shall be issued, executed and countersigned in the manner provided for
herein
(and may bear, at the option of the Company, the adjusted Purchase Price)
and
shall be registered in the names of the holders of record of Right Certificates
on the record date specified in the public announcement.
(j) Irrespective
of any adjustment or change in the Purchase Price or the number or kind
of
securities issuable upon the exercise of the Rights, the Right Certificates
theretofore and thereafter issued may continue to express the Purchase
Price and
the number and kind of securities which were expressed in the initial Right
Certificate issued hereunder.
31
(k) Before
taking any action that would cause an adjustment reducing the Purchase
Price
below the then par value, if any, of the Common Shares or other securities
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 Common
Shares
or such other securities at such adjusted Purchase Price.
(l) In
any
case in which this Section 11 shall require that an adjustment in the Purchase
Price be made effective as of a record date for a specified event, the
Company
may elect to defer until the occurrence of such event the issuance to the
holder
of any Right exercised after such record date the number of Common Shares
or
other securities of the Company, if any, issuable upon such exercise over
and
above the number of Common Shares or other 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 ▇▇▇▇ or other appropriate
instrument evidencing such holder’s right to receive such additional Common
Shares or other securities upon the occurrence of the event requiring such
adjustment.
(m) Notwithstanding
anything in this Agreement to the contrary, 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 its
good
faith judgment the Board of Directors of the Company shall determine to
be
advisable in order that any (i) consolidation or subdivision of the Common
Shares, (ii) issuance wholly for cash of Common Shares at less than the
current
per share market price therefor, (iii) issuance wholly for cash of Common
Shares
or securities which by their terms are convertible into or exchangeable
for
Common Shares, (iv) stock dividends, or (v) issuance of rights, options or
warrants referred to in this Section 11, hereafter made by the Company
to
holders of its Common Shares shall not be taxable to such
shareholders.
32
Section
12. Certificate
of Adjusted Purchase Price or Number of Securities.
Whenever an adjustment is made as provided in Section 11 or Section 13
hereof,
the Company shall promptly (a) prepare a certificate setting forth such
adjustment and a brief statement of the facts accounting for such adjustment,
(b) file with the Rights Agent and with each transfer agent for the Common
Shares, a copy of such certificate, and (c) if such adjustment is made
after the
Distribution Date, mail a brief summary of such adjustment to each holder
of a
Right Certificate in accordance with Section 25 hereof. The Rights Agent
shall
be fully protected in relying on any such certificate any on any adjustment
therein and shall not be obligated or responsible for calculating any adjustment
nor shall it be deemed to have knowledge of any such adjustment unless
and until
it shall have received such a certificate.
Section
13. Consolidation,
Merger or Sale or Transfer of Assets or Earning Power.
(a) In
the
event that, following the Share Acquisition Date, directly or
indirectly:
(i) the
Company shall consolidate with, or merge with or into, any other Person
and the
Company shall not be the continuing or surviving corporation of such
consolidation or merger; or
(ii) any
Person shall consolidate with the Company, or merge with or into the Company
and
the Company shall be the continuing or surviving corporation of such merger
or
consolidation and, in connection with such merger or consolidation, all
or part
of the Common Shares shall be changed into or exchanged for stock or other
securities of any other Person or cash or any other property; or
33
(iii) the
Company shall be a party to any statutory share exchange with any other
Person;
or
(iv) the
Company, directly or indirectly, shall sell or otherwise transfer (or one
or
more of its Subsidiaries shall sell or otherwise transfer), in one or more
transactions, assets, cash flow or earning power (including, without limitation,
securities creating any obligation on the part of the Company and/or any
of its
Subsidiaries) representing in the aggregate more than 50% of the assets,
cash
flow or earning power of the Company and its Subsidiaries (taken as a whole)
to
any Person or Persons other than the Company or one of its wholly owned
Subsidiaries;
then,
and
in each such case, proper provision shall be made so that from and after
the
latest of the Share Acquisition Date, the Distribution Date, and the date
of the
occurrence of such Triggering Event (A) each holder of a Right (except
as
otherwise provided herein) shall thereafter have the right to receive,
upon the
exercise thereof in accordance with the terms of this Agreement at an exercise
price per Right equal to the product of the then-current Purchase Price
multiplied by the number of Common Shares for which a Right was exercisable
immediately prior to the first occurrence of a Triggering Event, such number
of
duly authorized, validly issued, fully paid, nonassessable and freely tradable
Common Shares of the Issuer, free and clear of any liens, encumbrances
and other
adverse claims and not subject to any rights of call or first refusal,
as shall
be equal to the result obtained by (x) multiplying the then-current Purchase
Price by the number of Common Shares for which a Right is exercisable
immediately prior to the first occurrence of a Triggering Event and dividing
that product by (y) 50% of the current per share market price of the Common
Shares of the Issuer (determined pursuant to Section 11(d) hereof), on
the date
of consummation of such Flip-
34
over
Event; (B) the Issuer shall thereafter be liable for, and shall assume,
by
virtue of the consummation of such Flip-over Event, all the obligations
and
duties of the Company pursuant to this Agreement; (C) the term “Company” shall
thereafter be deemed to refer to the Issuer; and (D) the Issuer shall take
such
steps (including, without limitation, the reservation of a sufficient number
of
its Common Shares to permit the exercise of all outstanding Rights) 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
possible, in relation to its Common Shares thereafter deliverable upon
the
exercise of the Rights.
(b) For
purposes of this Section 13, “Issuer” shall mean (i) in the case of any
Flip-over Event described in Sections 13(a) (i) or (ii) above, the Person
that
is the continuing, surviving, resulting or acquiring Person (including
the
Company as the continuing or surviving corporation of a transaction described
in
Section 13(a)(ii) above), and (ii) in the case of any Flip-over Event described
in Section 13(a)(iii) above, the Person acquiring the securities of the
shareholders of the Company in such exchange and (iii) in the case of any
Flip-over Event described in Section 13(a)(iv) above, the Person that is
the
party receiving the greatest portion of the assets or earning power (including,
without limitation, securities creating any obligation on the part of the
Company and/or any of its Subsidiaries) transferred pursuant to such transaction
or transactions; provided,
however,
that,
in any such case, (A) if (1) no class of equity security of such Person
is, at
the time of such merger, consolidation or transaction and has been continuously
over the preceding 12-month period, registered pursuant to Section 12 of
the
Exchange Act, and (2) such Person is a Subsidiary, directly or indirectly,
of
another Person, a class of equity security of which is and has been so
registered, the term “Issuer” shall mean such other Person; and (B) in case such
Person is a Subsidiary, directly or indirectly, of more than one Person,
a class
of equity security of two or more of which are and have been so registered,
the
term “Issuer” shall mean whichever of such Persons is the issuer of the equity
security having the greatest aggregate market value. Notwithstanding the
foregoing, if the Issuer in any of the Flip-over Events listed above is
not a
corporation or other legal entity having outstanding equity securities,
then,
and in each such case, (x) if the Issuer is directly or indirectly wholly
owned
by a corporation or other legal entity having outstanding equity securities,
then all references to Common
35
Shares
of
the Issuer shall be deemed to be references to the Common Shares of the
corporation or other legal entity having outstanding equity securities
which
ultimately controls the Issuer, and (y) if there is no such corporation
or other
legal entity having outstanding equity securities, (I) proper provision
shall be made so that the Issuer shall create or otherwise make available
for
purposes of the exercise of the Rights in accordance with the terms of
this
Agreement, a kind or kinds of security or securities having a fair market
value
at least equal to the economic value of the Common Shares which each holder
of a
Right would have been entitled to receive if the Issuer had been a corporation
or other legal entity having outstanding equity securities; and (II) all
other
provisions of this Agreement shall apply to the issuer of such securities
as if
such securities were Common Shares.
(c) The
Company shall not consummate any Flip-over Event, if, (i) at the time of
or
immediately after such Flip-over Event, there are or would be any rights,
warrants, instruments or securities outstanding or any agreements or
arrangements in effect which would eliminate or substantially diminish
the
benefits intended to be afforded by the Rights, (ii) prior to, simultaneously
with or immediately after such Flip-over Event, the shareholders of the
Person
who constitutes, or would constitute, the Issuer for purposes of Section
13(a)
shall have received a distribution or Rights previously owned by such Person
or
any of its Affiliates or Associates, or (iii) the form or nature of the
organization of the Issuer would preclude or limit the exercisability of
the
Rights. In addition, the Company shall not consummate any Flip-over Event
unless
the Issuer shall have a sufficient number of authorized Common Shares (or
other
securities as contemplated in Section 13(b) above) which have not been
issued or
reserved for issuance to permit the exercise in full of the Rights in accordance
with this Section 13 and unless prior to such consummation the Company
and the
Issuer shall have executed and delivered to the Rights Agent a supplemental
agreement providing for the terms set forth in subsections (a) and (b)
of this
Section 13 and further providing that as promptly as practicable after
the
consummation of any Flip-over Event, the Issuer shall:
36
(i) prepare
and file a registration statement under the Securities Act, with respect
to the
Rights and the securities issuable upon exercise of the Rights on an appropriate
form, and shall use its best efforts to cause such registration statement
to (A)
become effective as soon as practicable after such filing and (B) remain
effective (with a prospectus at all times meeting the requirements of the
Securities Act) until the Expiration Date;
(ii) take
all
such action as may be appropriate under, or to ensure compliance with,
the
securities or “blue sky” laws of the various states in connection with the
exercisability of the Rights; and
(iii) deliver
to holders of the Rights historical financial statements for the Issuer
and each
of its Affiliates which comply in all respects with the requirements for
registration on Form 10 (or any successor form) under the Exchange
Act.
(d) The
provisions of this Section 13 shall similarly apply to successive mergers
or
consolidations or sales or other transfers. In the event that a Flip-over
Event
occurs at any time after the occurrence of a Flip-in Event, except for
Rights
that have become void pursuant to Section 7(d), the Rights that have not
theretofore been exercised shall cease to be exercisable in the manner
provided
in Section 11(a)(ii) and will thereafter become exercisable in the manner
described in Section 13(a) hereof.
37
Section
14. Fractional
Rights and Fractional Securities.
(a) The
Company shall not be required to issue fractions of a Right or to distribute
Right Certificates which evidence fractional Rights. In lieu of such fractional
Rights, the Company shall pay as promptly as practicable to the registered
holders of the Right Certificates with regard to which such fractional
Rights
otherwise would 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 otherwise would have been issuable. The closing price
for any
day shall be the last sale price, regular way, or, in case no such sale
takes
place on such day, the average of the closing bid and asked prices, regular
way,
in either case as reported in the principal consolidated transaction reporting
system with respect to securities listed or admitted to trading on the
New York
Stock Exchange or, if the Rights are not listed or admitted to trading
on the
New York Stock Exchange, as reported in the principal consolidated transaction
reporting system with respect to securities listed on the principal national
securities exchange on which the Rights are listed or admitted to trading
or, if
the Rights are not listed or admitted to trading on any national securities
exchange, the last quoted price or, if not so quoted, the average of the
high
bid and low asked prices in the over-the-counter market, as reported by
NASDAQ
or such other system then in use or, if on any such date the Rights are
not
quoted by any such organization, the average of the closing bid and asked
prices
as furnished by a professional market maker making a market in the Rights
selected by the Board of Directors. If the Rights are not publicly held
or are
not so listed or traded, or are not the subject of available bid and asked
quotes, the current market value of one Right will mean the fair value
thereof
as determined in good faith by the Board of Directors, whose determination
shall
be described in a statement filed with the Rights Agent.
38
(b) Following
the occurrence of a Triggering Event, the Company shall not be required
to issue
fractions of Common Shares or other securities issuable upon exercise or
exchange of the Rights or to distribute certificates which evidence any
such
fractional securities. In lieu of issuing any such fractional securities,
the
Company may pay to any Person to whom or which such fractional securities
would
otherwise be issuable an amount in cash equal to the same fraction of the
current market value of one such security. For purposes of this Section
14(b),
the current market value of a Common Share or other security issuable upon
the
exercise or exchange of Rights shall be the closing price thereof (as determined
in the same manner as set forth for Common Shares in the second sentence
of
Section 11(d) hereof) for the Trading Day immediately prior to the date
of such
exercise or exchange; provided,
however,
that if
neither the Common Shares nor any such other securities are publicly held
or
listed or admitted to trading on any national securities exchange, or the
subject of available bid and asked quotes, the current market value of
one
Common Share or such other security shall mean the fair value thereof as
determined in good faith by the Board of Directors, whose determination
will
mean the fair value thereof as shall be described in a statement filed
with the
Rights Agent.
Section
15. Rights
of Action.
All
rights of action in respect of this Agreement, excepting the rights of
action
given to the Rights Agent under Section 18 hereof, are vested in the respective
registered holders of the Right Certificates (and, prior to the Distribution
Date, the registered holders of the Common Shares); and any registered
holder of
any Right Certificate (or, prior to the Distribution Date, of the Common
Shares), without the consent of the Rights Agent or of the holder of any
other
Right Certificate (or, prior to the Distribution Date, of the holder of
any
Common Shares), may in his, her or its own behalf and for his, her or its
own
benefit enforce, and may institute and maintain any suit, action or proceeding
39
against
the Company to enforce, or otherwise act in respect of, his, her or its
right to
exercise the Rights evidenced by such Right Certificate or Common Share
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
shall be entitled to specific performance of the obligations under this
Agreement, and injunctive relief against actual or threatened violations
of the
obligations of any Person subject to this Agreement.
Section
16. Agreement
of Rights Holders.
Every
holder of a Right by accepting the same consents and agrees with the Company
and
the Rights Agent and with every other holder of a Right that:
(a) Prior
to
the Distribution Date, the Rights shall be transferable only in connection
with
the transfer of the Common Shares;
(b) After
the
Distribution Date, the Right Certificates are transferable only on the
registry
books of the Rights Agent if surrendered at the principal office of the
Rights
Agent designated for such purpose, duly endorsed or accompanied by a proper
instrument of transfer;
(c) The
Company and the Rights Agent may deem and treat the person in whose name
the
Right Certificate (or, prior to the Distribution Date, the associated Common
Share certificate) is registered as the absolute owner thereof and of the
Rights
evidenced thereby (notwithstanding any notations of ownership or writing
on the
Right Certificate or the associated Common Share 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;
40
(d) Such
holder expressly waives any right to receive any fractional Rights and
any
fractional securities upon exercise or exchange of a Right, except as otherwise
provided in Section 14 hereof.
(e) Notwithstanding
anything in this Agreement to the contrary, neither the Company nor the
Rights
Agent shall have any liability to any holder of a Right or other Person
as a
result of its inability to perform any of its obligations under this Agreement
by reason of any preliminary or permanent injunction or other order, decree
or
ruling issued by a court of competent jurisdiction or by a governmental,
regulatory or administrative agency or commission, or any statute, rule,
regulation or executive order promulgated or enacted by any governmental
authority, prohibiting or otherwise restraining performance of such obligation;
provided,
however,
that
the Company shall use its best efforts to have any such order, decree or
ruling
lifted or otherwise overturned as soon as possible.
Section
17. Right
Certificate Holder Not Deemed a Shareholder.
No
holder, as such, of any Right Certificate shall be entitled to vote, receive
dividends or be deemed for any purpose the holder of the Common Shares
or any
other securities of the Company, which may at any time be issuable upon
the
exercise of the Rights represented thereby, nor shall anything contained
herein
or in any Right Certificate be construed to confer upon the holder of any
Right
Certificate, as such, any of the rights of a shareholder of the Company
or any
right to vote for the election of directors or upon any matter submitted
to
shareholders at any meeting thereof, or to give or withhold consent to
any
corporate action, or to receive notice of meetings or other actions affecting
shareholders (except as provided in Section 24 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 of this Agreement or exchanged pursuant to the provisions of
Section
27 hereof.
41
Section
18. Concerning
the Rights Agent.
(a) The
Company agrees to pay to the Rights Agent reasonable compensation for all
services rendered by it hereunder and, from time to time, on demand of
the
Rights Agent, its reasonable expenses and counsel fees and other disbursements
incurred in the administration and execution of this 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,
suit, action, proceeding or expense, incurred without gross negligence,
bad
faith or willful misconduct on the part of the Rights Agent, for anything
done
or omitted by the Rights Agent in connection with the acceptance and
administration of this Agreement, including the costs and expenses of defending
against any claim of liability arising therefrom, directly or
indirectly.
(b) The
Rights Agent shall be protected and shall incur no liability for or in
respect
of any action taken, suffered or omitted by it in connection with its
administration of this Agreement in reliance upon any Right Certificate
or
certificate evidencing Common Shares or 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.
(c) The
indemnity period in this Section 18 shall survive the expiration of the
Rights
and the termination of this Agreement.
42
Section
19. Merger
or Consolidation or Change of Name of Rights Agent.
(a) Any
Person into which the Rights Agent or any successor Rights Agent may be
merged
or with which it may be consolidated, or any Person resulting from any
merger or
consolidation to which the Rights Agent or any successor Rights Agent shall
be a
party, or any Person succeeding to the corporate trust business of the
Rights
Agent or any successor Rights Agent, shall be the successor to the Rights
Agent
under this Agreement without the execution or filing of any paper or any
further
act on the part of any of the parties hereto, provided that such Person
would be
eligible for appointment as a successor Rights Agent under the provisions
of
Section 21 hereof. If at the time such successor Rights Agent succeeds
to the
agency created by this Agreement, any of the Right Certificates shall have
been
countersigned but not delivered, any such successor Rights Agent may adopt
the
countersignature of the predecessor Rights Agent and deliver such Right
Certificates so countersigned; and if at that time any of the Right Certificates
shall not have been countersigned, any successor Rights Agent may countersign
such Right Certificates either in the name of the predecessor Rights Agent
or in
the name of the successor Rights Agent; and in all such cases such Right
Certificates shall have the full force provided in the Right Certificates
and in
this Agreement.
(b) If
at any
time the name of the Rights Agent changes and at such time any of the Right
Certificates have been countersigned but not delivered, the Rights Agent
may
adopt the countersignature under its prior name and deliver Right Certificates
so countersigned; and if at that time any of the Right Certificates have
not
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.
43
Section
20. Duties
of Rights Agent.
The
Rights Agent undertakes the duties and obligations imposed by this Agreement
upon the following terms and conditions, by all of which the Company and
the
holders of Right Certificates, by their acceptance thereof, shall be
bound:
(a) The
Rights Agent may consult with legal counsel (who may be legal counsel for
the
Company), and the advice or opinion of such counsel shall be full and complete
authorization and protection to the Rights Agent as to any action taken
or
omitted by it in good faith and in accordance with such advice or
opinion.
(b) Whenever
in the performance of its duties under this Agreement the Rights Agent
shall
deem it necessary or desirable that any fact or matter be proved or established
by the Company prior to taking or suffering any action hereunder, such
fact or
matter (unless other evidence in respect thereof be herein specifically
prescribed) may be deemed to be conclusively proved and established by
a
certificate signed by any one of the Chairman of the Board, the President,
any
Vice President, the Secretary, or the Treasurer of the Company and delivered
to
the Rights Agent; and such certificate shall be full authorization to the
Rights
Agent for any action taken or suffered in good faith by it under the provisions
of this Agreement in reliance upon such certificate.
(c) The
Rights Agent shall be liable hereunder only for its own gross negligence,
bad
faith or willful misconduct.
(d) The
Rights Agent shall not be liable for or by reason of any of the statements
of
fact or recitals contained in this Agreement or in the Right Certificates
(except its countersignature thereof) or be required to verify the same,
but all
such statements and recitals are and shall be deemed to have been made
by the
Company only.
44
(e) The
Rights Agent shall not be under any responsibility in respect of the validity
of
this Agreement or the execution and delivery hereof (except the due execution
and delivery hereof by the Rights Agent) or in respect of the validity
or
execution of any Right Certificate (except its countersignature thereof);
nor
shall it be responsible for any breach by the Company of any covenant or
condition contained in this Agreement or in any Right Certificate; nor
shall it
be responsible for any adjustment required under the provisions of Section
11 or
Section 13 hereof (including any adjustment which results in Rights becoming
void) or responsible for the manner, method or amount of any such adjustment
or
the ascertaining of the existence of facts that would require any such
adjustment (except with respect to the exercise of Rights evidenced by
Right
Certificates after actual notice of any such adjustment); nor shall it
by any
act hereunder be deemed to make any representation or warranty as to the
authorization or reservation of any shares of stock or other securities
to be
issued pursuant to this Agreement or any Right Certificate or as to whether
any
shares of stock or other securities will, when issued, be duly authorized,
validly issued, fully paid and nonassessable.
(f) The
Company agrees that it will perform, execute, acknowledge and deliver or
cause
to be performed, executed, acknowledged and delivered all such further
and other
acts, instruments and assurances as may reasonably be required by the Rights
Agent for the carrying out or performing by the Rights Agent of the provisions
of this Agreement.
(g) The
Rights Agent is hereby authorized and directed to accept instructions with
respect to the performance of its duties hereunder from any one of the
Chairman
of the Board, the President, any Vice President, the Secretary or the Treasurer
of the Company, and to apply to such officers for advice or instructions
in
connection with its duties, and it shall not be liable for any action taken
or
suffered to be taken by it in good faith in accordance with instructions
of any
such officer.
45
(h) The
Rights Agent and any shareholder, director, officer or employee of the
Rights
Agent may buy, sell or deal in any of the Rights or other securities of
the
Company or become pecuniarily interested in any transaction in which the
Company
may be interested, or contract with or lend money to the Company or otherwise
act as fully and freely as though it were not the Rights Agent under this
Agreement. Nothing herein shall preclude the Rights Agent from acting in
any
other capacity for the Company or for any other legal entity.
(i) The
Rights Agent may execute and exercise any of the rights or powers hereby
vested
in it or perform any duty hereunder either itself or by or through its
attorneys
or agents, and the Rights Agent shall not be answerable or accountable
for any
act, default, neglect or misconduct of any such attorneys or agents or
for any
loss to the Company resulting from any such act, default, neglect or misconduct,
provided reasonable care was exercised in the selection and continued employment
thereof. The Rights Agent shall not be under any duty or responsibility
to
insure compliance with any applicable federal or state securities laws
in
connection with the issuance, transfer or exchange of Right
Certificates.
(j) If,
with
respect to any Right Certificate surrendered to the Rights Agent for exercise,
transfer, split up, combination or exchange, the certificate attached to
the
form of assignment or form of election to purchase, as the case may be,
has
either not been completed or indicates an affirmative response to clause
1
or 2 thereof, the Rights Agent shall not take any further action with
respect to such requested exercise, transfer, split up, combination or
exchange,
without first consulting with the Company.
Section
21. Change
of Rights Agent.
The
Rights Agent or any successor Rights Agent may resign and be discharged
from its
duties under this Agreement upon 30 calendar days’ notice in writing mailed to
the Company and to each transfer agent of the Common Shares by registered
or
certified mail, and to the holders of the Right Certificates, if any, by
first-class mail. In
the
event the transfer agency relationship in effect between the Company and
the
Rights Agent terminates, the Rights Agent will be deemed to resign automatically
46
on
the
effective date of such termination; and any required notice will be sent
by the
Company. The Company may remove the Rights Agent or any successor Rights
Agent
upon 30 calendar days’ notice in writing, mailed to the Rights Agent or
successor Rights Agent, as the case may be, and to each transfer agent
of the
Common Shares by registered or certified mail, and to the holders of the
Right
Certificates, if any, by first-class mail. If the Rights Agent shall resign
or
be removed or shall otherwise become incapable of acting, the Company shall
appoint a successor to the Rights Agent. If the Company shall fail to make
such
appointment within a period of 30 calendar days after giving notice of
such
removal or after it has been notified in writing of such resignation or
incapacity by the resigning or incapacitated Rights Agent or by the holder
of a
Right Certificate (who shall, with such notice, submit his Right Certificate
for
inspection by the Company), then the registered holder of any Right Certificate
may apply to any court of competent jurisdiction for the appointment of
a new
Rights Agent. Any successor Rights Agent, whether appointed by the Company
or by
such a court, shall be a Person organized and doing business under the
laws of
the United States or of the States of Georgia or New York (or of any other
state
of the United States so long as such corporation is authorized to do business
as
a banking institution in the States of Georgia or New York), in good standing,
having a principal office in the States of Georgia or New York, which is
authorized under such laws to exercise corporate trust powers and is subject
to
supervision or examination by federal or state authority and which has
at the
time of its appointment as Rights Agent a combined capital and surplus
of at
least $50 million. After appointment, the successor Rights Agent shall
be vested
with the same powers, rights, duties and responsibilities as if it had
been
originally named as Rights Agent without further act or deed; but the
predecessor Rights Agent shall deliver and transfer to the successor Rights
Agent any property at the time held by it hereunder, and execute and deliver
any
further assurance, conveyance, act or deed necessary for the purpose. Not
later
than the effective date of any such appointment, the Company shall file
notice
thereof in writing with the predecessor Rights Agent and each transfer
agent of
the Common Shares, and mail a notice thereof in writing to the registered
holders of the Right Certificates, if any. Failure to give any notice provided
for in this Section 21, however, or any defect therein, shall not affect
the
legality or validity of the resignation or removal of the Rights Agent
or the
appointment of the successor Rights Agent, as the case may be.
47
Section
22. Issuance
of New Right Certificates.
Notwithstanding any of the provisions of this Agreement or of the Rights
to the
contrary, the Company may, at its option, issue new Right Certificates
evidencing Rights in such form as may be approved by its Board of Directors
to
reflect any adjustment or change in the Purchase Price per share and the
number
or kind of securities issuable upon exercise of the Rights made in accordance
with the provisions of this Agreement. In addition, in connection with
the
issuance or sale by the Company of Common Shares following the Distribution
Date
and prior to the Expiration Date, the Company (a) shall, with respect to
Common
Shares so issued or sold pursuant to the exercise, exchange or exchangeable
conversion of securities (other than Rights) issued prior to the Distribution
Date which are exercisable for, or convertible into, Common Shares, and
(b) may,
in any other case, if deemed necessary, appropriate or desirable by the
Board of
Directors, issue Right Certificates representing an equivalent number of
Rights
as would have been issued in respect of such Common Shares if they had
been
issued or sold prior to the Distribution Date, as appropriately adjusted
as
provided herein as if they had been so issued or sold; provided,
however,
that
(i) no such Right Certificate shall be issued if, and to the extent that,
in its
good faith judgment the Board of Directors determines that the issuance
of such
Right Certificate could have a material adverse tax consequence to the
Company
or to the Person to whom or which such Right Certificate otherwise would
be
issued, and (ii) no such Right Certificate shall be issued if, and to the
extent
that, appropriate adjustment otherwise shall have been made in lieu of
the
issuance thereof.
48
Section
23. Redemption.
(a) Prior
to
the Expiration Date, the Company may, at its option and with the approval
of the
Board, redeem all but not less than all of the then-outstanding Rights
at the
Redemption Price at any time prior to the Close of Business on the later
of (i)
the Distribution Date and (ii) the Share Acquisition Date, or on such later
date
as the Board of Directors may designate prior to such time as the Rights
are no
longer redeemable hereunder.
(b) Immediately
upon the effectiveness of the redemption of the Rights as provided in Section
23(a), and without any further action and without any notice, the right
to
exercise the Rights shall terminate and the only right thereafter of the
holders
of Rights shall be to receive the Redemption Price without interest thereon.
Promptly upon effectiveness of the redemption of the Rights as provided
in
Section 23(a), the Company shall publicly announce such redemption, and
within
10 calendar days thereafter, the Company shall give notice of such redemption
to
the holders of the then-outstanding Rights by mailing such notice to all
such
holders at their last addresses as they appear upon the registry books
of the
Company; provided,
however,
that
the failure to give, or any defect in, any such notice shall not affect
the
validity of the redemption of the Rights. Any notice which is mailed in
the
49
manner
herein provided shall be deemed given, whether or not the holder receives
the
notice. The notice of redemption mailed to the holders of Rights shall
state the
method by which the payment of the Redemption Price will be made. The Company
may, at its option, pay the Redemption Price in cash, Common Shares (based
upon
the current per share market price of the Common Shares (determined pursuant
to
Section 11(d) hereof) at the time of redemption) or any other form of
consideration deemed appropriate by the Board of Directors (based upon
the fair
market value of such other consideration, determined by the Board of Directors
in good faith) or any combination thereof. The Company may, at its option,
combine the payment of the Redemption Price with any other payment being
made
concurrently to holders of Common Shares and, to the extent that any such
other
payment is discretionary, may reduce the amount thereof on account of the
concurrent payment of the Redemption Price. If legal or contractual restrictions
prevent the Company from paying the Redemption Price (in the form of
consideration deemed appropriate by the Board) at the time of redemption,
the
Company will pay the Redemption Price, without interest, promptly after
such
time as the Company ceases to be so prevented from paying the Redemption
Price.
Section
24. Notice
of Certain Events.
(a) In
case,
after the Distribution Date, the Company shall propose (i) to pay any dividend
payable in stock of any class to the holders of Common Shares or to make
any
other distribution to the holders of Common Shares (other than a regular
periodic cash dividend), (ii) to offer to the holders of Common Shares
rights,
options or warrants to subscribe for or to purchase any additional Common
Shares
or shares of stock of any class or any other securities, rights or options,
(iii) to effect any reclassification of its Common Shares (other than a
reclassification involving only the subdivision of outstanding Common Shares),
(iv) to effect any consolidation or merger into or with, or to effect any
sale or other transfer (or to permit one or more of its Subsidiaries to
effect
any sale or other transfer), in one or more transactions, of assets or
earning
power (including, without limitation, securities creating any obligation
on the
part of the Company and/or any of its Subsidiaries) representing more than
50%
of the assets and earning power of the Company and its Subsidiaries, taken
as a
whole, to any other Person or Persons, other than the Company or one or
more of
its wholly owned subsidiaries, or (v) to effect the liquidation, dissolution
or
winding up of the
50
Company,
then, in each such case, the Company shall give to each holder of a Right
Certificate, to the extent feasible and in accordance with Section 25 hereof,
a
notice of such proposed action, which specifies the record date for the
purposes
of such stock dividend, distribution or offering of rights, options or
warrants,
or the date on which such reclassification, consolidation, merger, sale,
transfer, liquidation, dissolution, or winding up is to take place and
the date
of participation therein by the holders of the Common Shares, if any such
date
is to be fixed, and such notice shall be so given, in the case of any action
covered by clause (i) or (ii) above, at least 10 calendar days prior to
the
record date for determining holders of the Common Shares for purposes of
such
action, and, in the case of any such other action, at least 10 calendar
days
prior to the date of the taking of such proposed action or the date of
participation therein by the holders of the Common Shares, whichever shall
be
the earlier.
(b) In
case
any Triggering Event shall occur, then, in any such case, the Company shall
as
soon as practicable thereafter give to the Rights Agent and each holder
of a
Right Certificate, in accordance with Section 25 hereof, a notice of the
occurrence of such event, which shall specify the event and the consequences
of
the event to holders of Rights.
Section
25. Notices.
(a) Notices
or demands authorized by this Agreement to be given or made by the Rights
Agent
or by the holder of any Right Certificate to or on the Company shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed (until another address is filed by the Company in writing with
the
Rights Agent) or by facsimile or other generally accepted means of electronic
transmission as follows:
|
Theragenics
Corporation
|
||
|
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇
|
||
|
▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇
|
||
|
Attention:
Corporate Secretary
|
||
|
Facsimile:
▇▇▇-▇▇▇-▇▇▇▇
|
51
(b) Subject
to the provisions of Section 21 hereof, any notice or demand authorized
by this
Agreement to be given or made by the Company or by the holder of any Right
Certificate to or on the Rights Agent shall be sufficiently given or made
if
sent by first-class mail, postage prepaid, addressed (until another address
is
filed by the Company in writing with the Rights Agent) or by facsimile
or other
generally accepted means of electronic transmission as follows:
|
Computershare
Investor Services, LLC
|
||
|
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
|
||
|
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
||
|
Attention:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
||
|
Facsimile:
▇▇▇-▇▇▇-▇▇▇▇
|
(c) Notices
or demands authorized by this Agreement to be given or made by the Company
or
the Rights Agent to the holder of any Right Certificate (or, if prior to
the
Distribution Date, to the holder of any certificate evidencing Common Shares)
shall be sufficiently given or made if sent by first-class mail, postage
prepaid, addressed to such holder at the address of such holder as shown
on the
registry books of the Company.
Section
26. Supplements
and Amendments.
Prior
to the Distribution Date and subject to the last sentence of this
Section 26, the Company may in its sole and absolute discretion and the
Rights Agent shall, if the Company so directs, supplement or amend any
provision
of this Agreement in any respect without the approval of any holders of
Rights
or Common Shares. From and after the Distribution Date and subject to the
last
sentence of this Section 26, the Company may in its sole and absolute discretion
and the Rights Agent shall, if the Company so directs, supplement or amend
this
Agreement without the approval of any holders of Right Certificates in
order (i) to cure any ambiguity, (ii) to correct or supplement any provision
contained herein which may be defective or inconsistent with any other
provisions herein, (iii) to shorten or lengthen any time period hereunder,
or
52
(iv) to supplement
or amend the provisions hereunder in any manner which the Company may deem
desirable, including, without limitation, the addition of other events
requiring
adjustment to the Rights under Sections 11 or 13 hereof or procedures relating
to the redemption of the Rights, which supplement or amendment shall not,
in the
good faith determination of the Board of Directors, adversely affect the
interests of the holders of Right Certificates (other than an Acquiring
Person
or an Affiliate or Associate of an Acquiring Person). Upon the delivery
of a
certificate from an officer of the Company that states that the proposed
supplement or amendment is in compliance with the terms of this Section 26,
the Rights Agent shall execute such supplement or amendment; provided,
however,
that
the failure or refusal of the Rights Agent to execute such supplement or
amendment shall not affect the validity of any supplement or amendment
adopted
by the Company, any of which shall be effective in accordance with the
terms
thereof. Notwithstanding anything in this Agreement to the contrary, no
supplement or amendment shall be made at such time as the Rights are not
then redeemable which decreases the stated Redemption Price or the period
of
time remaining until the Final Expiration Date or which modifies a time
period relating to when the Rights may be redeemed.
Section
27. Exchange.
(a) The
Board
of Directors may, at its option, at any time after the later of the Distribution
Date and the first occurrence of a Triggering Event, direct the Company
to
exchange all or part of the then-outstanding and exercisable Rights (which
shall
not include Rights that have become void pursuant to the provisions of
Section
11(a)(ii) hereof) for Common Shares at an exchange ratio of one Common
Share per
Right, appropriately adjusted to reflect any stock split, stock dividend
or
similar transaction occurring after the date hereof (such exchange ratio
being
hereinafter referred to as the “Exchange Ratio”). Any such exchange shall be
effective immediately upon the action of the Board of Directors ordering
the
same, unless such action of the Board of Directors expressly provides that
such
exchange shall be effective at a subsequent time or upon the occurrence
or
nonoccurrence of one or
53
more
specified events (in which case such exchange shall be effective in accordance
with the provisions of such action of the Board of Directors). Notwithstanding
the foregoing, the Board of Directors shall not be empowered to effect
such
exchange at any time after any Person (other than the Company, any Subsidiary
of
the Company, any employee benefit plan of the Company or any such Subsidiary,
or
any entity holding Common Shares for or pursuant to the terms of any such
plan),
who or which, together with all Affiliates and Associates of such Person,
becomes the Beneficial Owner of 50% or more of the Common Shares then
outstanding.
(b) Immediately
upon the effectiveness of the exchange of any Rights pursuant to Section
27(a)
hereof, and without any further action and without any notice, the right
to
exercise such Rights shall terminate and the only right with respect to
such
Rights thereafter of the holder of such Rights shall be to receive that
number
of Common Shares equal to the number of such Rights held by such holder
multiplied by the Exchange Ratio. Promptly after the effectiveness of the
exchange of any Rights pursuant to Section 27(a) hereof, the Company shall
publicly announce such exchange, and within 10 calendar days thereafter,
shall
give 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;
provided,
however,
that
the failure to give, or any defect in, such notice shall not affect the
validity
of such exchange. 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 shall state the method by which the exchange of the Common
Shares
for Rights will be effected and, in the event of any partial exchange,
the
number of Rights which will be exchanged. Any partial exchange shall be
effected
pro rata based on the number of Rights (other than Rights which have become
void
pursuant to the provisions of Section 11(a)(ii) hereof) held by each holder
of Rights.
54
(c) In
any
exchange pursuant to this Section 27, the Company, at its option, may substitute
for any Common Share exchangeable for a Right, (i) equivalent common shares
(as
such term is used in Section 11(a)(iii) hereof), (ii) cash, (iii) debt
securities of the Company, (iv) other assets, or (v) any combination of
the
foregoing, in any event having an aggregate value which the Board of Directors
of the Company shall have determined in good faith to be equal to the current
market value of one Common Share (determined pursuant to Section 11(d)
hereof)
on the Trading Day immediately preceding the date of exchange pursuant
to this
Section 27.
Section
28. Successors;
Certain Covenants.
All the
covenants and provisions of this Agreement by or for the benefit of the
Company
or the Rights Agent shall bind and inure to the benefit of their respective
successors and assigns hereunder.
Section
29. Benefits
of this Agreement.
Nothing
in this Agreement shall be construed to give to any Person other than the
Company, the Rights Agent and the registered holders of the Right Certificates
(and, prior to the Distribution Date, the registered holders of the Common
Shares) 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 (or prior to
the
Distribution Date, the registered holders of the Common Shares).
Section
30. Determinations
and Actions by the Board of Directors, etc.
For all
purposes of this Agreement, any calculation of the number of Common Shares
or
other securities outstanding at any particular time, including for purposes
of
determining the particular percentage of such outstanding shares of which
any
Person is the Beneficial Owner, shall be made in accordance with the last
sentence of Rule 13d-3(d)(1)(i) of the General Rules and Regulations under
the
Exchange Act as in effect on the date of this Agreement. The Board of Directors
shall have the exclusive power and authority to administer this Agreement
and to
exercise all rights and powers specifically granted to the Board of Directors
or
to the
55
Company,
or as may be necessary or advisable in the administration of this Agreement,
including, without limitation, the right and power to (i) interpret the
provisions of this Agreement, and (ii) make all determinations deemed necessary
or advisable for the administration of this Agreement (including a determination
to redeem or exchange or not to redeem or exchange the Rights or to supplement
or amend the Agreement. All such actions, calculations, interpretations
and
determinations (including, for purposes of clause (y) below, all omissions
with
respect to the foregoing) which are done or made by the Board of Directors
in
good faith, shall (x) be final, conclusive and binding on the Company,
the
Rights Agent, the holders of the Rights and all other parties, and (y) not
subject any member of the Board to any liability to the holders of the
Rights.
Section
31. Severability.
If any
term, provision, covenant or restriction of this Agreement is held by a
court of
competent jurisdiction or other authority to be invalid, void or unenforceable,
the remainder of the terms, provisions, covenants and restrictions of this
Agreement shall remain in full force and effect and shall in no way be
affected,
impaired or invalidated.
Section
32. Governing
Law.
This
Agreement and each Right Certificate issued hereunder shall be deemed to
be a
contract made under the internal substantive laws of the State of Delaware
and
for all purposes shall be governed by and construed in accordance with
the
internal substantive laws of such State applicable to contracts to be made
and
performed entirely within such State.
56
Section
33. Counterparts.
This
Agreement may be executed in any number of counterparts and each of such
counterparts shall for all purposes be deemed to be an original, and all
such
counterparts shall together constitute but one and the same
instrument.
Section
34. Descriptive
Headings.
Descriptive headings of the several Sections of this Agreement are inserted
for
convenience only and shall not control or affect the meaning or construction
of
any of the provisions hereof.
Section
35. Force
Majeure.
Notwithstanding
anything to the contrary contained herein, Rights Agent shall not be liable
for
any delays or failures in performance resulting from acts beyond its reasonable
control including, without limitation, acts of God, terrorist acts, war,
civil
unrest, or to the extent not within the reasonable control of the Rights
Agent,
shortage of supply, breakdowns or malfunctions, interruptions or malfunction
of
computer facilities, or loss of data due to power failures or mechanical
difficulties with information storage or retrieval systems, or labor
difficulties.
(the
remainder of this page left intentionally blank)
57
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
[SEAL]
Attest:
Theragenics
Corporation
By
/s/
▇▇▇▇▇ ▇.
▇▇▇▇▇
By
/s/ M.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇
▇.
▇▇▇▇▇
M.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Secretary
President
[SEAL]
Attest:
Computershare
Investor Services, LLC
By
/s/ ▇▇▇▇
▇▇▇▇▇▇▇▇
By
/s/ ▇▇▇▇▇▇▇
▇. ▇▇▇▇
Name: ▇▇▇▇
▇▇▇▇▇▇▇▇ Name:
▇▇▇▇▇▇▇
▇. ▇▇▇▇
Title: Manager
Title:
Regional
Vice President
58
Exhibit
A
Form
of
Right Certificate
Certificate
No.
R- __________
Rights
|
|
NOT
EXERCISABLE AFTER FEBRUARY 28, 2017 OR EARLIER IF REDEEMED. THE
RIGHTS ARE
SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT $0.01 PER
RIGHT,
ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN
CIRCUMSTANCES SPECIFIED IN THE RIGHTS AGREEMENT, RIGHTS BENEFICIALLY
OWNED
BY AN ACQUIRING PERSON OR AN AFFILIATE OR AN ASSOCIATE OF AN ACQUIRING
PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT) MAY BECOME
NULL AND VOID.
|
Right
Certificate
THERAGENICS
CORPORATION
This
certifies that ________________, or his, her or its 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
Amended and Restated Rights Agreement, dated as of February 14, 2007, as the
same may be amended from time to time (the "Rights Agreement"), between
Theragenics Corporation, a Delaware corporation (the "Company"), and
Computershare Investor Services, LLC, a Delaware limited liability company
(the
"Rights Agent"), to purchase from the Company at any time after the Distribution
Date (as such term is defined in the Rights Agreement) and prior to 5:00 P.M.
(Eastern time) on
A-1
February 28, 2017 at the principal
office or offices of the Rights Agent designated for such purpose, one fully
paid nonassessable share of common stock, par value $.01 per share (the "Common
Shares"), of the Company, at a purchase price of $20.00 per Common Share (the
"Purchase Price"), upon presentation and surrender of this Right Certificate
with the Form of Election to Purchase and related Certificate duly executed.
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. The number of Rights evidenced
by
this Right Certificate (and the number of Common Shares which may be purchased
upon exercise thereof) set forth above, and the Purchase Price set forth above,
are the number and Purchase Price as of _____________ based on the Common Shares
as constituted at such date.
As
provided in the Rights Agreement, the Purchase Price and the number and kind
of
securities issuable (or other securities or property) which may be purchased
upon the exercise of the Rights and the number of Rights evidenced by this
Right
Certificate are subject to modification and adjustment upon the happening of
certain events.
This
Right Certificate is subject to all of the terms, provisions and conditions
of
the Rights Agreement, which terms, provisions and conditions are hereby
incorporated herein by reference and made a part hereof and to which Rights
Agreement reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities of the Rights Agent,
the Company and the holders of the Right Certificates, which limitations of
rights include the temporary suspension of the exercisability of the Rights
under the circumstances specified in the Rights Agreement. Copies of the Rights
Agreement are on file at the principal executive offices of the
Company.
A-2
Pursuant
to the Rights Agreement, from and after the later of the Distribution Date
and
the first occurrence of a Flip-in Event (as such term is defined in the Rights
Agreement), (i) any Rights that are or were acquired or beneficially owned
by
any Acquiring Person (or any Affiliate or Associate of such Acquiring Person)
shall be void and any holder of such Rights shall thereafter have no right
to
exercise such Rights under any provision of the Rights Agreement, (ii) no Right
Certificate shall be issued pursuant to the Rights Agreement that represents
Rights beneficially owned by an Acquiring Person or any Affiliate or Associate
thereof, (iii) no Right Certificate shall be issued at any time upon the
transfer of any Rights to an Acquiring Person or any Affiliate or Associate
thereof or to any nominee of such Acquiring Person or Affiliate or Associate
thereof, and (iv) any Right Certificate delivered to the Rights Agent for
transfer to an Acquiring Person or any Affiliate or Associate thereof shall
be
cancelled.
This
Right Certificate, with or without other Right Certificates, upon surrender
at
the office or agency of the Rights Agent designated for such purpose, may be
transferred, split up, combined or 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 Common Shares (or other securities,
as
the case may be) as the Right Certificate or Right Certificates surrendered
shall have entitled such holder (or former holder in the case of a transfer)
to
purchase, upon presentation and surrender hereof at the principal office of
the
Rights Agent designated for such purpose, with the Form of Assignment (if
appropriate) and the related Certificate duly executed. 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 Rights
Certificate (i) may be redeemed by the Company at its option at a redemption
price of $0.01 per Right or (ii) may be exchanged in whole or in part for Common
Shares. The Rights Agreement may be supplemented and amended by the Company,
as
provided therein.
A-3
The
Company is not required to issue fractional Common Shares or other securities
issuable upon the exercise of any Right or Rights evidenced hereby. In lieu
of
issuing such fractional Common Shares or other securities, the Company may
make
a cash payment, as provided in the Rights Agreement.
No
holder
of this Right Certificate, as such, shall be entitled to vote or receive
dividends or be deemed for any purpose the holder of the Common Shares or of
any
other securities of the Company which may at any time be issuable upon the
exercise or exchange of the Right or Rights represented hereby, nor shall
anything contained herein or in the Rights Agreement be construed to confer
upon
the holder hereof, as such, any of the rights of a shareholder of the Company
or
any right to vote for the election of directors or upon any matter submitted
to
shareholders at any meeting thereof, or to give or withhold consent to any
corporate action, or to receive notice of meetings or other actions affecting
shareholders (except as provided in the Rights Agreement), or to receive
dividends or subscription rights, or otherwise, until the Right or Rights
evidenced by this Right Certificate shall have been exercised or exchanged
in
accordance with the provisions of the Rights Agreement.
This
Right Certificate shall not be valid or obligatory for any purpose until it
shall have been countersigned by the Rights Agent.
A-4
WITNESS
the facsimile signature of the proper officers of the Company and its corporate
seal. Dated as of _________, 20__.
ATTEST: Theragenics
Corporation
________________________________________ By _______________________________________________________________________
Secretary
Title:
[SEAL]
Countersigned:
Computershare
Investor Services, LLC
By ________________________________
Authorized
Signature
A-5
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: _____________,
20__
___________________________________________________________________________________
Signature
Signature
Guaranteed:
CERTIFICATE
The
undersigned hereby certifies by checking the appropriate boxes
that:
(1) the
Rights evidenced by this Right Certificate [ ] are [ ] are
not being sold, assigned, transferred, split up, combined or exchanged by or
on
behalf of a Person who is or was an Acquiring Person or an Affiliate or
Associate of any such Person (as such terms are defined in the Rights
Agreement);
(2) after
due
inquiry and to the best knowledge of the undersigned, it [ ] did
[ ] did not acquire the Rights evidenced by this Right Certificate
from any Person who is, was or became an Acquiring Person or an Affiliate or
Associate of an Acquiring Person.
Dated: _____________,
20__
______________________________________________________________________________
Signature
A-6
FORM
OF ELECTION TO PURCHASE
(To
be
executed if holder desires to
exercise
the Right Certificate)
To
Theragenics Corporation
The
undersigned hereby irrevocably elects to exercise
Rights
represented by this Right Certificate to purchase the Common Shares or other
securities issuable upon the exercise of such Rights and requests that
certificates for such securities be issued in the name of:
Please
insert social security
or
other
identifying number:
_____________________________________________________________________________________________________________________
___________________________________________________________________________________________________________________________________________
(Please
print name and address)
___________________________________________________________________________________________________________________________________________
If
such
number of Rights shall not be all the Rights evidenced by this Right
Certificate, a new Right Certificate for the balance remaining of such Rights
shall be registered in the name of and delivered to:
Please
insert social security
or
other
identifying number:
_____________________________________________________________________________________________________________________
___________________________________________________________________________________________________________________________________________
(Please
print name and address)
___________________________________________________________________________________________________________________________________________
Optional Election to Exercise without Payment of Cash:
With
respect to the exercise of ___________ of the Rights specified above, the
undersigned hereby elects to exercise such Rights without payment of cash and
to
receive a number of Common Shares or other securities having a value (as
determined pursuant to the Rights Agreement) equal to the difference between
(i)
the value of the Common Shares or other securities that would have been issuable
upon the exercise thereof upon payment of the cash amount as provided in the
Rights Agreement, and (ii) the amount of such cash payment.
Dated:
_____________, 20__
___________________________________________________________
Signature
Signature
Guaranteed:
A-7
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 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 became an Acquiring Person or an Affiliate or
Associate of an Acquiring Person.
Dated: _____________,
20__
_________________________________________________________________
Signature
NOTICE
Signatures
on the foregoing Form of Assignment and Form of Election to Purchase and in
the
related Certificates must correspond to the name as written upon the face of
this Right Certificate in every particular, without alteration or enlargement
or
any change whatsoever.
Signatures
must be guaranteed by a member firm of a registered national securities
exchange, a member of the National Association of Securities Dealers, Inc.,
or a
commercial bank or trust company having an office or correspondent in the United
States.
In
the
event the certification set forth above in the Form of Assignment or the Form
of
Election to Purchase, as the case may be, is not completed, such Assignment
or
Election to Purchase will not be honored.
A-8
Exhibit
B
SUMMARY
OF RIGHTS TO PURCHASE
COMMON
SHARES
The
Board
of Directors of Theragenics Corporation (the "Company") declared a dividend
distribution of one right (a "Right") for each outstanding share of common
stock, par value $.01 per share (the "Common Shares"), of the Company, which
was
paid on February 28, 1997 (the "Record Date") to the shareholders of record
as
of the close of business on the Record Date. Each Right entitles the registered
holder to purchase from the Company one Common Share at a price of $20.00 (the
"Purchase Price"), subject to adjustment. The description and terms of the
Rights are set forth in an Amended and Restated Rights Agreement, dated as
of
February 14, 2007 (the "Rights Agreement"), between the Company and
Computershare Investor Services, LLC as Rights Agent (the "Rights Agent").
Until
the
earliest to occur of (i) the close of business on the tenth calendar day (or
such later date as may be specified by the Board of Directors) following a
public announcement that a person or group of affiliated or associated persons
has acquired, or obtained the right to acquire, beneficial ownership of 20%
or
more of the outstanding Common Shares (an "Acquiring Person"), (ii) the close
of
business on the tenth business day following the commencement of a tender offer
or exchange offer by a person or group of affiliated or associated persons,
the
consummation of which would result in beneficial ownership by such person or
group of 20% or more of the outstanding Common Shares, or (iii) the close of
business on the tenth calendar day following the first date of public
announcement of the first occurrence of a Flip-in Event or a Flip-over Event
(as
such terms are hereinafter defined) (the earliest of such dates being
hereinafter called the "Distribution Date"), the Rights will be evidenced,
with
respect to any of the Common Share certificates outstanding as of the Record
Date, by such Common Share certificates.
The
Rights Agreement provides that, until the Distribution Date, the Rights will
be
transferred with and only with the Common Shares. Until the Distribution Date
(or earlier redemption or expiration of the Rights), new Common Share
certificates issued upon transfer or new issuance of Common Shares will contain
a notation incorporating the Rights Agreement by reference. Until the
Distribution Date (or earlier redemption or expiration of the Rights), the
surrender for transfer of any certificates for Common Shares in respect of
which
Rights have been issued will also constitute the transfer of the Rights
associated with the Common Shares represented by such certificates. As soon
as
practicable following the Distribution Date, separate certificates evidencing
the Rights (the "Right Certificates") will be mailed to holders of record of
the
Common Shares at the close of business on the Distribution Date and such
separate Right Certificates alone will evidence the Rights.
B-1
No
Right
is exercisable at any time prior to the Distribution Date. The Rights will
expire on February 28, 2017 (the "Final Expiration Date") unless earlier
redeemed or exchanged by the Company as described below. Until a Right is
exercised, the holder thereof, as such, will have no rights as a shareholder
of
the Company, including without limitation the right to vote or to receive
dividends.
The
Purchase Price payable, and the number of Common Shares or other securities
issuable, upon exercise of the Rights are subject to adjustment from time to
time to prevent dilution (i) in the event of a stock dividend on, or a
subdivision, combination or reclassification of, the Common Shares, (ii) upon
the grant to holders of the Common Shares of certain rights or warrants to
subscribe for or purchase Common Shares at a price, or securities convertible
into Common Shares with a conversion price, less than the then current market
price of the Common Shares or (iii) upon the distribution to holders of the
Common Shares of evidences of indebtedness or cash (excluding regular periodic
cash dividends), assets, stock (excluding dividends payable in Common Shares)
or
of subscription rights or warrants (other than those referred to
above).
In
the
event (a "Flip-in Event") that (i) any person or group of affiliated or
associated persons becomes an Acquiring Person, (ii) any Acquiring Person merges
into or combines with the Company and the Company is the surviving corporation
or any Acquiring Person effects certain other transactions with the Company,
as
described in the Rights Agreement, or (iii) during such time as there is an
Acquiring Person, there shall be any reclassification of securities or
recapitalization or reorganization of the Company which has the effect of
increasing by more than 1% the proportionate share of the outstanding shares
of
any class of equity securities of the Company or any of its subsidiaries
beneficially owned by the Acquiring Person, proper provision shall be made
so
that each holder of a Right, other than Rights that are or were owned
beneficially by the Acquiring Person (which, from and after the later of the
Distribution Date and the date of the earliest of any such events, will be
void), will thereafter have the right to receive, upon exercise thereof at
the
then current exercise price of the Right, that number of Common Shares (or,
under certain circumstances, an economically equivalent security or securities
of the Company) having a market value of two times the exercise price of the
Right.
To
illustrate the operation of such an adjustment, at a Purchase Price of $20.00,
assuming the then current market price (as determined pursuant to the provisions
of the Rights Agreement) per Common Share were $4.00, each Right not owned
beneficially by an Acquiring Person at or after the time of such an occurrence
would entitle its holder to purchase (after the Distribution Date) from the
Company ten (10) Common Shares (having a market value of $40.00 for
$20.00).
In
the
event (a "Flip-over Event") that, following the first date of public
announcement that a person has become an Acquiring Person, (i) the Company
merges with or into any person and the Company is not the surviving corporation,
(ii) any person merges with or into the Company and the Company is the surviving
corporation, but its Common Shares are changed or exchanged, or (iii) 50% or
more of the Company's assets or earning power, including without limitation
securities creating obligations of the Company, are sold, proper provision
shall
be made so that each holder of a Right will thereafter have the right to
receive, upon the exercise thereof at the then current exercise price of the
Right, that number of shares of common stock (or, under certain circumstances,
an economically equivalent security or securities) of such other person which
at
the time of such transaction would have a market value of two times the exercise
price of the Right.
B-2
At
any
time after the later of the Distribution Date and the first occurrence of a
Flip-in Event or Flip-over Event and prior to the acquisition by any person
or
group of affiliated or associated persons of 50% or more of the outstanding
Common Shares, the Board of Directors of the Company may exchange the Rights
(other than any Rights which have become void), in whole or in part, at an
exchange ratio of one Common Share per Right (subject to
adjustment).
With
certain exceptions, no adjustment in the Purchase Price will be required until
cumulative adjustments require an adjustment in the Purchase Price of at least
1%. The Company is not required to issue fractional Common Shares or other
securities issuable upon the exercise of Rights. In lieu of issuing such
securities, the Company may make a cash payment, as provided in the Rights
Agreement.
The
Company may redeem the Rights in whole, but not in part, at a price of $0.01
per
Right (the "Redemption Price"), at any time prior to the close of business
on
the later of (i) the Distribution Date and (ii) the first date of public
announcement that a person has become an Acquiring Person or on such later
date,
as the Board of Directors may designate prior to such time as the Rights are
no
longer redeemable. Immediately upon any redemption of the Rights, the right
to
exercise the Rights will terminate and the only right of the holders of Rights
will be to receive the Redemption Price.
The
Rights Agreement may be amended by the Company without the approval of any
holders of Right Certificates, including amendments which add other events
requiring adjustment to the purchase price payable and the number of Common
Shares or other securities issuable upon the exercise of the Rights or which
modify procedures relating to the redemption of the Rights, provided that no
amendment may be made at such time as the Rights are not then redeemable which
decreases the stated Redemption Price or the period of time remaining until
the
Final Expiration Date or which modifies a time period relating to when the
Rights may be redeemed.
A
copy of
the Rights Agreement was filed with the Securities and Exchange Commission
as an
Exhibit to a Registration Statement on Form 8-A/A. A copy of the Rights
Agreement is available free of charge from the Company. The foregoing summary
does not purport to be complete and is qualified in its entirety by reference
to
the Rights Agreement, which is incorporated herein by this
reference.
B-3