RIGHTS AGREEMENT
ASSOCIATES FIRST CAPITAL CORPORATION
and
FIRST CHICAGO TRUST COMPANY OF NEW YORK,
as Rights Agent
Dated as of April 13, 1998
TABLE OF CONTENTS
Page
Section 1. Certain Definitions . . . . . . . . . . . . . . . 2
Section 2. Appointment of Rights Agent . . . . . . . . . . . 8
Section 3. Issue of Right Certificates . . . . . . . . . . . 8
Section 4. Form of Right Certificates. . . . . . . . . . . . 11
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. Availability of Shares of Preferred Stock . . . . 18
Section 10. Preferred Stock Record Date . . . . . . . . . . . 21
Section 11. Adjustment of Purchase Price, Number of Shares
and Number of Rights. . . . . . . . . . . . . . . 22
Section 12. Certificate of Adjusted Purchase Price or Number
of Shares . . . . . . . . . . . . . . . . . . . . 41
Section 13. Consolidation, Merger or Sale or Transfer of
Assets or Earnings Power. . . . . . . . . . . . . 42
Section 14. Fractional Rights and Fractional Shares . . . . . 49
Section 15. Rights of Action. . . . . . . . . . . . . . . . . 52
Section 16. Agreement of Right Holders. . . . . . . . . . . . 53
Section 17. Right Certificate Holder Not Deemed a
Stockholder . . . . . . . . . . . . . . . . . . . 53
Section 18. Concerning the Rights Agent . . . . . . . . . . . 54
Section 19. Merger or Consolidation or Change of Name of
Rights Agent. . . . . . . . . . . . . . . . . . . 55
Section 20. Duties of Rights Agent. . . . . . . . . . . . . . 56
Section 21. Change of Rights Agent. . . . . . . . . . . . . . 62
Section 22. Issuance of New Right Certificates. . . . . . . . 63
Section 23. Redemption. . . . . . . . . . . . . . . . . . . . 64
Section 24. Exchange. . . . . . . . . . . . . . . . . . . . . 65
Section 25. Notice of Certain Events. . . . . . . . . . . . . 68
Section 26. Notices . . . . . . . . . . . . . . . . . . . . . 70
Section 27. Supplements and Amendments. . . . . . . . . . . . 70
Section 28. Successors. . . . . . . . . . . . . . . . . . . . 72
Section 29. Benefits of this Agreement. . . . . . . . . . . . 72
Section 30. Severability. . . . . . . . . . . . . . . . . . . 72
Section 31. Governing Law . . . . . . . . . . . . . . . . . . 72
Section 32. Counterparts. . . . . . . . . . . . . . . . . . . 73
Section 33. Descriptive Headings. . . . . . . . . . . . . . . 73
Section 34. Administration. . . . . . . . . . . . . . . . . . 73
RIGHTS AGREEMENT
Agreement, dated as of April 13, 1998, between
Associates First Capital Corporation, a Delaware corporation (the
"Company"), and First Chicago Trust Company of New York, a New
York corporation (the "Rights Agent").
The Board of Directors of the Company has authorized
and declared a dividend of one preferred share purchase right (a
"Right") for each share of Common Stock (as hereinafter defined)
of the Company outstanding as of the close of business (as
defined below) on April 20, 1998 (the "Record Date"), each Right
representing the right to purchase one one-thousandth (subject to
adjustment) of a share of Preferred Stock (as hereinafter
defined), upon the terms and subject to the conditions herein set
forth, and has further authorized and directed the issuance of
one Right (subject to adjustment as provided herein) with respect
to each share of Common Stock that shall become outstanding
between the Record Date and the earliest of the Distribution
Date, the Redemption Date and the Final Expiration Date (as such
terms are hereinafter defined); provided, however, that Rights
may be issued with respect to shares of Common Stock that shall
become outstanding after the Distribution Date and prior to the
Redemption Date and the Final Expiration Date in accordance with
Section 22.
Accordingly, in consideration of the premises and the
mutual agreements herein set forth, the parties hereby agree as
follows:
Section 1. Certain Definitions. For purposes of this
Agreement, the following terms have the meaning indicated:
(a) "Acquiring Person" shall mean any Person (as such
term is hereinafter defined) who or which shall be the
Beneficial Owner (as such term is hereinafter defined) of
15% or more of the shares of Common Stock then outstanding,
but shall not include an Exempt Person (as such term is
hereinafter defined); provided, however, that if the Board
of Directors of the Company determines in good faith that a
Person who would otherwise be an "Acquiring Person" has
become such inadvertently (including, without limitation,
because (i) such Person was unaware that it beneficially
owned a percentage of Common Stock that would otherwise
cause such Person to be a "Acquiring Person" or (ii) such
Person was aware of the extent of its Beneficial Ownership
of Common Stock but had no actual knowledge of the
consequences of such Beneficial Ownership under this Rights
Agreement) and without any intention of changing or
influencing control of the Company, and such Person, as
promptly as practicable divested or divests himself or
itself of Beneficial Ownership of a sufficient number of
shares of Common Stock so that such Person would no longer
be an Acquiring Person, then such Person shall not be deemed
to be or to have become an "Acquiring Person" for any
purposes of this Agreement. Notwithstanding the foregoing,
no Person shall become an "Acquiring Person" as the result
of an acquisition of shares of Common Stock by the Company
which, by reducing the number of shares outstanding,
increases the proportionate number of shares beneficially
owned by such Person to 15% or more of the shares of Common
Stock then outstanding; provided, however, that if a Person
shall become the Beneficial Owner of 15% or more of the
shares of Common Stock then outstanding by reason of such
share acquisitions by the Company and thereafter become the
Beneficial Owner of any additional shares of Common Stock,
then such Person shall be deemed to be an "Acquiring Person"
unless upon the consummation of the acquisition of such
additional shares of Common Stock such Person does not own
15% or more of the shares of Common Stock then outstanding.
The phrase "then outstanding", when used with reference to a
Person's Beneficial Ownership of securities of the Company,
shall mean the number of such securities then issued and
outstanding together with the number of such securities not
then actually issued and outstanding which such Person would
be deemed to own beneficially hereunder.
(b) "Affiliate" and "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2 of
the General Rules and Regulations under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), as in
effect on the date of this Agreement.
(c) A Person shall be deemed the "Beneficial Owner"
of, shall be deemed to have "Beneficial Ownership" of and
shall be deemed to "beneficially own" any securities:
(i) which such Person or any of such Person's
Affiliates or Associates is deemed to beneficially own,
directly or indirectly within the meaning of Rule 13d-3
of the General Rules and Regulations under the Exchange
Act as in effect on the date of this Agreement;
(ii) which such Person or any of such Person's
Affiliates or Associates has (A) the right to acquire
(whether such right is exercisable immediately or only
after the passage of time) pursuant to any agreement,
arrangement or understanding (other than customary
agreements with and between underwriters and selling
group members with respect to a bona fide public
offering of securities), or upon the exercise of
conversion rights, exchange rights, rights, warrants or
options, or otherwise; provided, however, that a Person
shall not be deemed the Beneficial Owner of, or to
beneficially own, (x) 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, (y) securities which such Person has a right
to acquire on the exercise of Rights at any time prior
to the time a Person becomes an Acquiring Person or (z)
securities issuable upon exercise of Rights from and
after the time a Person becomes an Acquiring Person if
such Rights were acquired by such Person or any of such
Person's Affiliates or Associates prior to the
Distribution Date or pursuant to Section 3(a) or
Section 22 hereof ("original Rights") or pursuant to
Section 11(i) or Section 11(n) with respect to an
adjustment to original Rights; or (B) the right to vote
pursuant to any agreement, arrangement or
understanding; provided, however, that a Person shall
not be deemed the Beneficial Owner of, or to
beneficially own, any security by reason of such
agreement, arrangement or understanding if the
agreement, arrangement or understanding to vote such
security (1) arises solely from a revocable proxy or
consent given to such Person in response to a public
proxy or consent solicitation made pursuant to, and in
accordance with, the applicable rules and regulations
promulgated under the Exchange Act and (2) is not also
then reportable on Schedule 13D under the Exchange Act
(or any comparable or successor report); or
(iii) which are beneficially owned, directly or
indirectly, by any other Person with which such Person
or any of such Person's Affiliates or Associates has
any agreement, arrangement or understanding (other than
customary agreements with and between underwriters and
selling group members with respect to a bona fide
public offering of securities) for the purpose of
acquiring, holding, voting (except to the extent
contemplated by the proviso to Section 1(c)(ii)(B)) or
disposing of any securities of the Company.
(d) "Business Day" shall mean any day other than a
Saturday, a Sunday, or a day on which banking institutions
in the State of New York, or the State in which the
principal office of the Rights Agent is located, are
authorized or obligated by law or executive order to close.
(e) "close of business" on any given date shall mean
5:00 P.M., New York City time, on such date; provided,
however, that if such date is not a Business Day it shall
mean 5:00 P.M., New York City time, on the next succeeding
Business Day.
(f) "Common Stock" when used with reference to the
Company shall mean the Class A Common Stock, par value $.01
per share, of the Company. "Common Stock" when used with
reference to any Person other than the Company shall mean
the capital stock (or, in the case of an unincorporated
entity, the equivalent equity interest) with the greatest
voting power of such other Person or, if such other Person
is a subsidiary of another Person, the Person or Persons
which ultimately control such first-mentioned Person.
(g) "Distribution Date" shall have the meaning set
forth in Section 3 hereof.
(h) "Exempt Person" shall mean the Company, any
Subsidiary (as such term is hereinafter defined) of the
Company, any employee benefit plan of the Company or of any
Subsidiary of the Company, or any entity or trustee holding
Common Stock for or pursuant to the terms of any such plan
or for the purpose of funding any such plan or funding other
employee benefits for employees of the Company or of any
Subsidiary of the Company.
(i) "Final Expiration Date" shall have the meaning set
forth in Section 7 hereof.
(j) "New York Stock Exchange" shall mean the New York
Stock Exchange, Inc.
(k) "Person" shall mean any individual, firm,
corporation or other entity, and shall include any successor
(by merger or otherwise) of such entity.
(l) "Preferred Stock" shall mean the Series A Junior
Participating Preferred Stock, par value $.01 per share, of
the Company having the rights and preferences set forth in
the Form of Certificate of Designations attached to this
Agreement as Exhibit A.
(m) "Redemption Date" shall have the meaning set forth
in Section 7 hereof.
(n) "Securities Act" shall mean the Securities Act of
1933, as amended.
(o) "Stock Acquisition Date" shall mean the first date
of public announcement (which for purposes of this
definition, shall include, without limitation, a report
filed pursuant to Section 13(d) of the Exchange Act) by the
Company or an Acquiring Person that an Acquiring Person has
become such or such earlier date as a majority of the Board
of Directors shall become aware of the existence of an
Acquiring Person.
(p) "Subsidiary" of any Person shall mean any
corporation or other entity of which securities or other
ownership interests having ordinary voting power sufficient
to elect a majority of the board of directors or other
persons performing similar functions are beneficially owned,
directly or indirectly, by such Person, and any corporation
or other entity that is otherwise controlled by such Person.
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 prior to the Distribution Date also be the holders
of Common Stock) in accordance with the terms and conditions
hereof, and the Rights Agent hereby accepts such appointment.
The Company may from time to time appoint such co-Rights Agents
as it may deem necessary or desirable.
Section 3. Issue of Right Certificates. (a) Until the
earlier of (i) the tenth day after the Stock Acquisition Date or
(ii) the tenth Business Day (or such later date as may be
determined by action of the Board of Directors prior to such time
as any Person becomes an Acquiring Person) after the date of the
commencement by any Person (other than an Exempt Person) of, or
of the first public announcement of the intention of such Person
(other than an Exempt Person) to commence, a tender or exchange
offer the consummation of which would result in any Person
becoming the Beneficial Owner of shares of Common Stock
aggregating 15% or more of the Common Stock then outstanding
(including any such date which is after the date of this
Agreement and prior to the issuance of the Rights; the earlier of
such dates being herein referred to as the "Distribution Date"),
(x) the Rights will be evidenced (subject to the provisions of
Section 3(b) hereof) by the certificates for Common Stock
registered in the names of the holders thereof and not by
separate Right Certificates and (y) the Rights will be
transferable only in connection with the transfer of Common
Stock. As soon as practicable after the Distribution Date, the
Company will prepare and execute, the Rights Agent will
countersign and the Company will send or cause to be sent (and
the Rights Agent will, if requested, send) by first-class,
insured, postage-prepaid mail, to each record holder of Common
Stock as of the close of business on the Distribution Date (other
than any Acquiring Person or any Associate or Affiliate of an
Acquiring Person), at the address of such holder shown on the
records of the Company, a Right Certificate, in substantially the
form of Exhibit B hereto (a "Right Certificate"), evidencing one
Right (subject to adjustment as provided herein) for each share
of Common Stock so held. As of the Distribution Date, the Rights
will be evidenced solely by such Right Certificates.
(b) On the Record Date, or as soon as practicable
thereafter, the Company will send a copy of a Summary of Rights
to Purchase Shares of Preferred Stock, in substantially the form
of Exhibit C hereto (the "Summary of Rights"), by first-class,
postage-prepaid mail, to each record holder of Common Stock as of
the close of business on the Record Date (other than any
Acquiring Person or any Associate or Affiliate of any Acquiring
Person), at the address of such holder shown on the records of
the Company. With respect to certificates for Common Stock out-
standing as of the Record Date, until the Distribution Date, the
Rights will be evidenced by such certificates registered in the
names of the holders thereof together with the Summary of Rights.
Until the Distribution Date (or the earlier of the Redemption
Date or the Final Expiration Date), the surrender for transfer of
any certificate for Common Stock outstanding on the Record Date,
with or without a copy of the Summary of Rights, shall also
constitute the transfer of the Rights associated with the Common
Stock represented thereby.
(c) Certificates issued for Common Stock (including,
without limitation, upon transfer of outstanding Common Stock,
disposition of Common Stock out of treasury stock or issuance or
reissuance of Common Stock out of authorized but unissued shares)
after the Record Date but prior to the earliest of the
Distribution Date, the Redemption Date or the Final Expiration
Date shall have impressed on, printed on, written on or otherwise
affixed to them the following legend:
This certificate also evidences and entitles the
holder hereof to certain rights as set forth in a
Rights Agreement between Associates First Capital
Corporation and First Chicago Trust Company of New
York, dated as of April 13, 1998, as the same may
be amended from time to time (the "Rights
Agreement"), the terms of which are hereby
incorporated herein by reference and a copy of
which is on file at the principal executive
offices of Associates First Capital Corporation.
Under certain circumstances, as set forth in the
Rights Agreement, such Rights will be evidenced by
separate certificates and will no longer be
evidenced by this certificate. Associates First
Capital Corporation will mail to the holder of
this certificate a copy of the Rights Agreement
without charge after receipt of a written request
therefor. Under certain circumstances, as set
forth in the Rights Agreement, Rights owned by or
transferred to any Person who becomes an Acquiring
Person (as defined in the Rights Agreement) and
certain transferees thereof will become null and
void and will no longer be transferable.
With respect to such certificates containing the foregoing
legend, until the Distribution Date, the Rights associated with
the Common Stock represented by such certificates shall be
evidenced by such certificates alone, and the surrender for
transfer of any such certificate, except as otherwise provided
herein, shall also constitute the transfer of the Rights
associated with the Common Stock represented thereby. In the
event that the Company purchases or otherwise acquires any Common
Stock after the Record Date but prior to the Distribution Date,
any Rights associated with such Common Stock shall be deemed
cancelled and retired so that the Company shall not be entitled
to exercise any Rights associated with the Common Stock which are
no longer outstanding.
Notwithstanding this paragraph (c), the omission of a
legend shall not affect the enforceability of any part of this
Agreement or the rights of any holder of the Rights.
Section 4. Form of Right Certificates. The Right
Certificates (and the forms of election to purchase shares and of
assignment to be printed on the reverse thereof) shall be
substantially in the form set forth in Exhibit B hereto and may
have such marks of identification or designation and such
legends, summaries or endorsements printed thereon as the Company
may deem appropriate and as are not inconsistent with the
provisions of this Agreement, or as may be required to comply
with any applicable law or with any rule or regulation made
pursuant thereto or with any rule or regulation of the New York
Stock Exchange or of any other stock exchange or automated
quotation system on which the Rights may from time to time be
listed, or to conform to usage. Subject to the provisions of
Sections 11, 13 and 22 hereof, the Right Certificates shall
entitle the holders thereof to purchase such number of one
one-thousandths of a share of Preferred Stock as shall be set forth
therein at the price per one one-thousandth of a share of
Preferred Stock set forth therein (the "Purchase Price"), but the
number of such one one-thousandths of a share of Preferred Stock
and the Purchase Price shall be subject to adjustment as provided
herein.
Section 5. Countersignature and Registration. (a)
The Right Certificates shall be executed on behalf of the
Company by the Chairman of the Board of Directors, the President,
any of the Vice Presidents, the Treasurer or the Comptroller of
the Company, either manually or by facsimile signature, shall
have affixed thereto the Company's seal or a facsimile thereof,
and shall be attested by the Secretary or an Assistant Secretary
of the Company, either manually or by facsimile signature. The
Right Certificates shall be countersigned by the Rights Agent,
either manually or by facsimile signature, and shall not be valid
for any purpose unless countersigned. In case any officer of the
Company who shall have signed any of the Right Certificates, or
shall have attested the Company's seal thereon, 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, or who attested the Company's seal thereon, had not
ceased to be such officer of the Company; and any Right
Certificate may be signed on behalf of the Company, and the
Company's seal may be attested, by any Person who, at the actual
date of the execution of such Right Certificate, shall be a
proper officer of the Company to sign such Right Certificate,
although at the date of the execution of this Agreement any such
Person was not such an officer.
(b) Following the Distribution Date, the Rights Agent
will keep or cause to be kept, at an office or agency designated
for such purpose, 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 7(e), 11(a)(ii) and 14 hereof, at any time after the
close of business on the Distribution Date, and prior to the
close of business on the earlier of the Redemption Date or the
Final Expiration Date, any Right Certificate or Right
Certificates may be transferred, split up, combined or exchanged
for another Right Certificate or Right Certificates, entitling
the registered holder to purchase a like number of one
one-thousandths of a share of Preferred Stock as the Right
Certificate or Right Certificates surrendered then entitled such
holder to purchase. Any registered holder desiring to transfer,
split up, combine or exchange any Right Certificate or Right
Certificates shall make such request in writing delivered to the
Rights Agent, and shall surrender the Right Certificate or Right
Certificates to be transferred, split up, combined or exchanged
at the office or agency of the Rights Agent designated for such
purpose. Thereupon the Rights Agent shall countersign and
deliver to the Person entitled thereto a Right Certificate or
Right Certificates, as the case may be, as so requested. 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) Subject to the provisions of Section 11(a)(ii)
hereof, at any time after the Distribution Date and prior to the
close of business on the earlier of the Redemption Date or the
Final Expiration Date, upon receipt by the Company and the Rights
Agent of evidence reasonably satisfactory to them of the loss,
theft, destruction or mutilation of a Right Certificate, and, in
case of loss, theft or destruction, of indemnity or security
reasonably satisfactory to them, and reimbursement to the Company
and the Rights Agent of all reasonable expenses incidental
thereto, and upon surrender to the Rights Agent and cancellation
of the Right Certificate if mutilated, the Company will make and
deliver a new Right Certificate of like tenor to the Rights Agent
for delivery to the registered holder in lieu of the Right
Certificate so lost, stolen, destroyed or mutilated.
Section 7. Exercise of Rights, Purchase Price;
Expiration Date of Rights. (a) Except as otherwise provided
herein, the Rights shall become exercisable on the Distribution
Date, and thereafter the registered holder of any Right
Certificate may, subject to Section 11(a)(ii) hereof and except
as otherwise provided herein, exercise the Rights evidenced
thereby in whole or in part 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
agency of the Rights Agent designated for such purpose, together
with payment of the Purchase Price for each one one-thousandth of
a share of Preferred Stock as to which the Rights are exercised,
at any time which is both after the Distribution Date and prior
to the earliest of (i) the close of business on April 13, 2008
(the "Final Expiration Date"), (ii) the time at which the Rights
are redeemed as provided in Section 23 hereof (the "Redemption
Date") or (iii) the time at which such Rights are exchanged as
provided in Section 24 hereof.
(b) The Purchase Price shall be initially $400 for
each one one-thousandth of a share of Preferred Stock purchasable
upon the exercise of a Right. The Purchase Price and the number
of one one-thousandths of a share of Preferred Stock or other
securities or property to be acquired upon exercise of a Right
shall be subject to adjustment from time to time as provided in
Sections 11 and 13 hereof and shall be payable in lawful money of
the United States of America in accordance with paragraph (c) of
this Section 7.
(c) Except as otherwise provided herein, upon receipt
of a Right Certificate representing exercisable Rights, with the
form of election to purchase duly executed, accompanied by
payment of the aggregate Purchase Price for the shares of
Preferred Stock to be purchased and an amount equal to any
applicable transfer tax required to be paid by the holder of such
Right Certificate in accordance with Section 9 hereof, in cash or
by certified check, cashier's check or money order payable to the
order of the Company, the Rights Agent shall thereupon promptly
(i) (A) requisition from any transfer agent of the Preferred
Stock certificates for the number of shares of Preferred Stock to
be purchased (and the Company hereby irrevocably authorizes its
transfer agent to comply with all such requests), or (B)
requisition from the depositary agent depositary receipts
representing interests in such number of one one-thousandths of a
share of Preferred Stock as are to be purchased (in which case
certificates for the Preferred Stock represented by such receipts
shall be deposited by the transfer agent with the depositary
agent) (and the Company hereby directs the depositary agent to
comply with such request), (ii) when appropriate, requisition
from the Company the amount of cash to be paid in lieu of
issuance of fractional shares in accordance with Section 14
hereof, (iii) promptly after receipt of such certificates or
depositary receipts, cause the same to be delivered to or upon
the order of the registered holder of such Right Certificate,
registered in such name or names as may be designated by such
holder and (iv) when appropriate, after receipt, promptly deliver
such cash to or upon the order of the registered holder of such
Right Certificate.
(d) Except as otherwise provided herein, in case the
registered holder of any Right Certificate shall exercise less
than all the Rights evidenced thereby, a new Right Certificate
evidencing Rights equivalent to the exercisable Rights remaining
unexercised shall be issued by the Rights Agent to the registered
holder of such Right Certificate or to his duly authorized
assigns, subject to the provisions of Section 14 hereof.
(e) Notwithstanding anything in this Agreement to the
contrary, neither the Rights Agent nor the Company shall be
obligated to undertake any action with respect to a registered
holder of Rights upon the occurrence of any purported transfer or
exercise of Rights pursuant to Section 6 hereof or this Section 7
unless such registered holder shall have (i) completed and signed
the certificate contained in the form of assignment or election
to purchase set forth on the reverse side of the Right
Certificate surrendered for such transfer or exercise and (ii)
provided such additional evidence of the identity of the
Beneficial Owner (or former Beneficial Owner) thereof as the
Company shall reasonably request.
Section 8. Cancellation and Destruction of Right
Certificates. All Right Certificates surrendered for the purpose
of exercise, transfer, split up, combination or exchange shall,
if surrendered to the Company or to any of its agents, be
delivered to the Rights Agent 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 any of the provisions of this
Agreement. The Company shall deliver to the Rights Agent for
cancellation and retirement, and the Rights Agent shall so cancel
and retire, any other Right Certificate purchased or acquired by
the Company otherwise than upon the exercise thereof. The Rights
Agent shall deliver all cancelled Right Certificates to the
Company, or shall, at the written request of the Company,
destroy, or cause to be destroyed, such cancelled Right
Certificates, and in such case shall deliver a certificate of
destruction thereof to the Company.
Section 9. Availability of Shares of Preferred Stock.
(a) The Company covenants and agrees that it will
cause to be reserved and kept available out of its authorized and
unissued shares of Preferred Stock or any shares of Preferred
Stock held in its treasury, the number of shares of Preferred
Stock that will be sufficient to permit the exercise in full of
all outstanding Rights.
(b) So long as the shares of Preferred Stock (and,
following the time that a Person becomes an Acquiring Person,
shares of Common Stock and other securities) issuable upon the
exercise of Rights may be listed or admitted to trading on the
New York Stock Exchange or listed on any other national
securities exchange or quotation system, the Company shall use
its best efforts to cause, from and after such time as the Rights
become exercisable, all shares reserved for such issuance to be
listed or admitted to trading on the New York Stock Exchange or
listed on any other exchange or quotation system upon official
notice of issuance upon such exercise.
(c) From and after such time as the Rights become
exercisable, the Company shall use its best efforts, if then
necessary to permit the issuance of shares of Preferred Stock
(and following the time that a Person first becomes an Acquiring
Person, shares of Common Stock and other securities) upon the
exercise of Rights, to register and qualify such shares of
Preferred Stock (and following the time that a Person first
becomes an Acquiring Person, shares of Common Stock and other
securities) under the Securities Act and any applicable state
securities or "Blue Sky" laws (to the extent exemptions therefrom
are not available), cause such registration statement and
qualifications to become effective as soon as possible after such
filing and keep such registration and qualifications effective
until the earlier of the date as of which the Rights are no
longer exercisable for such securities and the Final Expiration
Date. The Company may temporarily suspend, for a period of time
not to exceed 90 days, the exercisability of the Rights in order
to prepare and file a registration statement under the Securities
Act and permit it to become effective. Upon any such suspension,
the Company shall issue a public announcement stating that the
exercisability of the Rights has been temporarily suspended, as
well as a public announcement at such time as the suspension is
no longer in effect. Notwithstanding any provision of this
Agreement to the contrary, the Rights shall not be exercisable in
any jurisdiction unless the requisite qualification in such
jurisdiction shall have been obtained and until a registration
statement under the Securities Act (if required) shall have been
declared effective.
(d) The Company covenants and agrees that it will take
all such action as may be necessary to ensure that all shares of
Preferred Stock (and, following the time that a Person becomes an
Acquiring Person, shares of Common Stock and other securities)
delivered upon exercise of Rights shall, at the time of delivery
of the certificates therefor (subject to payment of the Purchase
Price), be duly and validly authorized and issued and fully paid
and nonassessable shares.
(e) The Company further covenants and agrees that it
will pay when due and payable any and all federal and state
transfer taxes and charges which may be payable in respect of the
issuance or delivery of the Right Certificates or of any shares
of Preferred Stock (or shares of Common Stock or other
securities) upon the exercise of Rights. The Company shall not,
however, be required to pay any transfer tax which may be payable
in respect of any transfer or delivery of Right Certificates to a
Person other than, or the issuance or delivery of certificates or
depositary receipts for the Preferred Stock (or shares of Common
Stock or other securities) in a name other than that of, the reg-
istered holder of the Right Certificate evidencing Rights
surrendered for exercise or to issue or deliver any certificates
or depositary receipts for Preferred Stock (or shares of Common
Stock or other securities) upon the exercise of any Rights until
any such tax shall have been paid (any such tax being payable by
that 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.
Section 10. Preferred Stock Record Date. Each Person
in whose name any certificate for Preferred Stock is issued upon
the exercise of Rights shall for all purposes be deemed to have
become the holder of record of the shares of Preferred Stock
represented thereby on, and such certificate shall be dated, the
date upon which the Right Certificate evidencing such Rights was
duly surrendered and payment of the Purchase Price (and any
applicable transfer taxes) was made; provided, however, that if
the date of such surrender and payment is a date upon which the
Preferred Stock transfer books of the Company are closed, such
Person shall be deemed to have become the record holder of such
shares on, and such certificate shall be dated, the next
succeeding Business Day on which the Preferred Stock 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 holder of Preferred Stock for
which the Rights shall be exercisable, including, without
limitation, the right to vote or to receive dividends or other
distributions, and shall not be entitled to receive any notice of
any proceedings of the Company, except as provided herein.
Section 11. Adjustment of Purchase Price, Number of
Shares and Number of Rights. The Purchase Price, the number of
shares of Preferred Stock or other securities or property
purchasable 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.
(a) (i) In the event the Company shall at any time
after the date of this Agreement (A) declare a dividend
on the Preferred Stock payable in shares of Preferred
Stock, (B) subdivide the outstanding Preferred Stock,
(C) combine the outstanding Preferred Stock into a
smaller number of Preferred Stock or (D) issue any
shares of its capital stock in a reclassification of
the Preferred Stock (including any such
reclassification in connection with a consolidation or
merger in which the Company is the continuing or
surviving corporation), except as otherwise provided in
this Section 11(a), the Purchase Price in effect at the
time of the record date for such dividend or of the
effective date of such subdivision, combination or
reclassification, and the number and kind of shares of
capital stock issuable on such date, shall be
proportionately adjusted so that the holder of any
Right exercised after such time shall be entitled to
receive the aggregate number and kind of shares of
capital stock which, if such Right had been exercised
immediately prior to such date and at a time when the
Preferred Stock transfer books of the Company were
open, the holder would have owned upon such exercise
and been entitled to receive by virtue of such
dividend, subdivision, combination or reclassification;
provided, however, that in no event shall the
consideration to be paid upon the exercise of one Right
be less than the aggregate par value of the shares of
capital stock of the Company issuable upon exercise of
one Right.
(ii) Subject to Section 24 of this Agreement and
except as otherwise provided in this Section 11(a)(ii),
in the event any Person becomes an Acquiring Person,
each holder of a Right shall thereafter have the right
to receive, upon exercise thereof at a price equal to
the then current Purchase Price multiplied by the
number of one one-thousandths of a share of Preferred
Stock for which a Right is then exercisable, in
accordance with the terms of this Agreement and in lieu
of shares of Preferred Stock, such number of shares of
Common Stock (or at the option of the Company, such
number of one one-thousandths of shares of Preferred
Stock) as shall equal the result obtained by (x)
multiplying the then current Purchase Price by the
number of one one-thousandths of a share of Preferred
Stock for which a Right is then exercisable and
dividing that product by (y) 50% of the then current
per share market price of the Company's Common Stock
(determined pursuant to Section 11(d) hereof) on the
date of the occurrence of such event; provided,
however, that the Purchase Price and the number of
shares of Common Stock so receivable upon exercise of a
Right shall thereafter be subject to further adjustment
as appropriate in accordance with Section 11(f) hereof.
Notwithstanding anything in this Agreement to the
contrary, however, from and after the time (the
"invalidation time") when any Person first becomes an
Acquiring Person, any Rights that are beneficially
owned by (x) any Acquiring Person (or any Affiliate or
Associate of any Acquiring Person), (y) a transferee of
any Acquiring Person (or any such Affiliate or
Associate) who becomes a transferee after the
invalidation time or (z) a transferee of any Acquiring
Person (or any such Affiliate or Associate) who became
a transferee prior to or concurrently with the
invalidation time pursuant to either (I) a transfer
from the Acquiring Person to holders of its equity
securities or to any Person with whom it has any
continuing agreement, arrangement or understanding
regarding the transferred Rights or (II) a transfer
which the Board of Directors has determined is part of
a plan, arrangement or understanding which has the
purpose or effect of avoiding the provisions of this
paragraph, and subsequent transferees of such Persons,
shall be void without any further action and any holder
of such Rights shall thereafter have no rights
whatsoever with respect to such Rights under any
provision of this Agreement. The Company shall use all
reasonable efforts to ensure that the provisions of
this Section 11(a)(ii) 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.
From and after the invalidation time, no Right
Certificate shall be issued pursuant to Section 3 or
Section 6 hereof that represents Rights that are or
have become void pursuant to the provisions of this
paragraph, and any Right Certificate delivered to the
Rights Agent that represents Rights that are or have
become void pursuant to the provisions of this
paragraph shall be cancelled. From and after the
occurrence of an event specified in Section 13(a)
hereof, any Rights that theretofore have not been
exercised pursuant to this Section 11(a)(ii) shall
thereafter be exercisable only in accordance with
Section 13 and not pursuant to this Section 11(a)(ii).
(iii) The Company may at its option substitute
for a share of Common Stock issuable upon the exercise
of Rights in accordance with the foregoing subparagraph
(ii) such number or fractions of shares of Preferred
Stock having an aggregate current market value equal to
the current per share market price of a share of Common
Stock. In the event that there shall not be sufficient
shares of Common Stock issued but not outstanding or
authorized but unissued to permit the exercise in full
of the Rights in accordance with the foregoing
subparagraph (ii), the Board of Directors shall, to the
extent permitted by applicable law and any material
agreements then in effect to which the Company is a
party (A) determine the excess of (1) the value of the
shares of Common Stock issuable upon the exercise of a
Right in accordance with the foregoing subparagraph
(ii) (the "Current Value") over (2) the then current
Purchase Price multiplied by the number of one
one-thousandths of shares of Preferred Stock for which a
Right was exercisable immediately prior to the time
that the Acquiring Person became such (such excess, the
"Spread"), and (B) with respect to each Right (other
than Rights which have become void pursuant to Section
11(a)(ii)), make adequate provision to substitute for
the shares of Common Stock issuable in accordance with
subparagraph (ii) upon exercise of the Right and
payment of the applicable Purchase Price, (1) cash, (2)
a reduction in the Purchase Price, (3) shares of
Preferred Stock or other equity securities of the
Company (including, without limitation, shares or
fractions of shares of preferred stock which, by virtue
of having dividend, voting and liquidation rights
substantially comparable to those of the shares of
Common Stock, are deemed in good faith by the Board of
Directors to have substantially the same value as the
shares of Common Stock (such shares of Preferred Stock
and shares or fractions of shares of preferred stock
are hereinafter referred to as "Common Stock
equivalents")), (4) debt securities of the Company, (5)
other assets or (6) any combination of the foregoing,
having a value which, when added to the value of the
shares of Common Stock actually issued upon exercise of
such Right, shall have an aggregate value equal to the
Current Value (less the amount of any reduction in the
Purchase Price), where such aggregate value has been
determined by the Board of Directors upon the advice of
a nationally recognized investment banking firm
selected in good faith by the Board of Directors;
provided, however, if the Company shall not make
adequate provision to deliver value pursuant to clause
(B) above within thirty (30) days following the date
that the Acquiring Person became such (the "Section
11(a)(ii) Trigger Date"), then the Company shall be
obligated to deliver, to the extent permitted by
applicable law and any material agreements then in
effect to which the Company is a party, upon the
surrender for exercise of a Right and without requiring
payment of the Purchase Price, shares of Common Stock
(to the extent available), and then, if necessary, such
number or fractions of shares of Preferred Stock (to
the extent available) and then, if necessary, cash,
which shares and/or cash have an aggregate value equal
to the Spread. If, upon the date any Person becomes an
Acquiring Person, the Board of Directors shall
determine in good faith that it is likely that
sufficient additional shares of Common Stock could be
authorized for issuance upon exercise in full of the
Rights, then, if the Board of Directors so elects, the
thirty (30) day period set forth above may be extended
to the extent necessary, but not more than ninety (90)
days after the Section 11(a)(ii) Trigger Date, in order
that the Company may seek stockholder approval for the
authorization of such additional shares (such thirty
(30) day period, as it may be extended, is herein
called the "Substitution Period"). To the extent that
the Company determines that some action need be taken
pursuant to the second and/or third sentence of this
Section 11(a)(iii), the Company (x) shall provide,
subject to Section 11(a)(ii) hereof and the last
sentence of this Section 11(a)(iii) hereof, that such
action shall apply uniformly to all outstanding Rights
and (y) may suspend the exercisability of the Rights
until the expiration of the Substitution Period in
order to seek any authorization of additional shares
and/or to decide the appropriate form of distribution
to be made pursuant to such second sentence and to
determine the value thereof. In the event of any such
suspension, the Company shall issue a public
announcement stating that the exercisability of the
Rights has been temporarily suspended, as well as a
public announcement at such time as the suspension is
no longer in effect. For purposes of this Section
11(a)(iii), the value of the shares of Common Stock
shall be the current per share market price (as
determined pursuant to Section 11(d)(i)) on the Section
11(a)(ii) Trigger Date and the per share or fractional
value of any "Common Stock equivalent" shall be deemed
to equal the current per share market price of the
Common Stock. The Board of Directors of the Company
may, but shall not be required to, establish procedures
to allocate the right to receive shares of Common Stock
upon the exercise of the Rights among holders of Rights
pursuant to this Section 11(a)(iii).
(b) In case the Company shall fix a record date for
the issuance of rights, options or warrants to all holders
of Preferred Stock entitling them (for a period expiring
within 45 calendar days after such record date) to subscribe
for or purchase Preferred Stock (or shares having the same
rights, privileges and preferences as the Preferred Stock
("equivalent preferred shares")) or securities convertible
into Preferred Stock or equivalent preferred shares at a
price per share of Preferred Stock or equivalent preferred
shares (or having a conversion price per share, if a
security convertible into shares of Preferred Stock or
equivalent preferred shares) less than the then current per
share market price of the Preferred Stock (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 shares of
Preferred Stock and equivalent preferred shares outstanding
on such record date plus the number of shares of Preferred
Stock and equivalent preferred shares which the aggregate
offering price of the total number of shares of Preferred
Stock and/or equivalent preferred shares so to be offered
(and/or the aggregate initial conversion price of the con-
vertible securities so to be offered) would purchase at such
current market price, and the denominator of which shall be
the number of shares of Preferred Stock and equivalent
preferred shares outstanding on such record date plus the
number of additional shares of Preferred Stock and/or
equivalent preferred shares to be offered for subscription
or purchase (or into which the convertible securities so to
be offered are initially convertible); provided, however,
that in no event shall the consideration to be paid upon the
exercise of one Right be less than the aggregate par value
of the shares of capital stock of the Company issuable upon
exercise of one Right. In case such subscription price may
be paid in a consideration part or all of which shall be in
a form other than cash, the value of such consideration
shall be as determined in good faith by the Board of
Directors of the Company, whose determination shall be
described in a statement filed with the Rights Agent.
Shares of Preferred Stock and equivalent preferred shares
owned by or held for the account of the Company shall not be
deemed outstanding for the purpose of any such computation.
Such adjustment shall be made successively whenever such a
record date is fixed; and in the event that such rights,
options or warrants are not so issued, the Purchase Price
shall be adjusted to be the Purchase Price which would then
be in effect if such record date had not been fixed.
(c) In case the Company shall fix a record date for
the making of a distribution to all holders of the Preferred
Stock (including any such distribution made in connection
with a consolidation or merger in which the Company is the
continuing or surviving corporation) of evidences of
indebtedness or assets (other than a regular quarterly cash
dividend or a dividend payable in Preferred Stock) or
subscription rights or warrants (excluding those referred to
in Section 11(b) hereof), the Purchase Price to be in effect
after such record date shall be determined by multiplying
the Purchase Price in effect immediately prior to such
record date by a fraction, the numerator of which shall be
the then current per share market price of the Preferred
Stock (determined pursuant to Section 11(d) hereof) on such
record date, less the fair market value (as determined in
good faith by the Board of Directors of the Company whose
determination shall be described in a statement filed with
the Rights Agent) of the portion of the assets or evidences
of indebtedness so to be distributed or of such subscription
rights or warrants applicable to one share of Preferred
Stock, and the denominator of which shall be such current
per share market price (determined pursuant to Section 11(d)
hereof) of the Preferred Stock; provided, however, that in
no event shall the consideration to be paid upon the
exercise of one Right be less than the aggregate par value
of the shares of capital stock of the Company to be issued
upon exercise of one Right. Such adjustments shall be made
successively whenever such a record date is fixed; and in
the event that such distribution is not so made, the
Purchase Price shall again be adjusted to be the Purchase
Price which would then be in effect if such record date had
not been fixed.
(d) (i) Except as otherwise provided herein, for the
purpose of any computation hereunder, the "current per share
market price" of any security (a "Security" for the purpose
of this Section 11(d)(i)) on any date shall be deemed to be
the average of the daily closing prices per share of such
Security for the 30 consecutive Trading Days (as such term
is hereinafter defined) immediately prior to such date;
provided, however, that in the event that the current per
share market price of the Security is determined during a
period following the announcement by the issuer of such
Security of (A) a dividend or distribution on such Security
payable in shares of such Security or securities convertible
into such shares, or (B) any subdivision, combination or
reclassification of such Security, and prior to the
expiration of 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 reflect the current market price
per share equivalent of such Security. The closing price
for each day shall be the last sale price, regular way, or,
in case no such sale takes place on such day, the average of
the closing bid and asked prices, regular way, in either
case as reported by the principal consolidated transaction
reporting system with respect to securities listed or
admitted to trading on the New York Stock Exchange or, if
the Security is not listed or admitted to trading on the New
York Stock Exchange, as reported in the principal
consolidated transaction reporting system with respect to
securities listed on the principal national securities
exchange on which the Security is listed or admitted to
trading or, if the Security is not listed or admitted to
trading on any national securities exchange, the last quoted
price or, if not so quoted, the average of the high bid and
low asked prices in the over-the-counter market, as reported
by NASDAQ or such other system then in use, or, if on any
such date the Security is not quoted by any such
organization, the average of the closing bid and asked
prices as furnished by a professional market maker making a
market in the Security selected by the Board of Directors of
the Company. The term "Trading Day" shall mean a day on
which the principal national securities exchange on which
the Security is listed or admitted to trading is open for
the transaction of business or, if the Security is not
listed or admitted to trading on any national securities
exchange, a Business Day.
(ii) For the purpose of any computation hereunder, if
the Preferred Stock is publicly traded, the "current per
share market price" of the Preferred Stock shall be
determined in accordance with the method set forth in
Section 11(d)(i). If the Preferred Stock is not publicly
traded but the Common Stock is publicly traded, the "current
per share market price" of the Preferred Stock shall be
conclusively deemed to be the current per share market price
of the Common Stock as determined pursuant to Section
11(d)(i) multiplied by one thousand (appropriately adjusted
to reflect any stock split, stock dividend or similar
transaction occurring after the date hereof). If neither
the Common Stock nor the Preferred Stock is publicly traded,
"current per share market price" shall mean the fair value
per share as determined in good faith by the Board of
Directors of the Company, whose determination shall be
described in a statement filed with the Rights Agent.
(e) No adjustment in the Purchase Price shall be
required unless such adjustment would require an increase or
decrease of at least 1% in the Purchase Price; provided,
however, 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 share
of Preferred Stock or share of Common Stock or other share
or security as the case may be. Notwithstanding the first
sentence of this Section 11(e), any adjustment required by
this Section 11 shall be made no later than the earlier of
(i) three years from the date of the transaction which
requires such adjustment or (ii) the date of the expiration
of the right to exercise any Rights.
(f) If as a result of an adjustment made pursuant to
Section 11(a) hereof, the holder of any Right thereafter
exercised shall become entitled to receive any shares of
capital stock of the Company other than the Preferred Stock,
thereafter the Purchase Price and the number of such other
shares so receivable upon exercise of a Right shall be
subject to adjustment from time to time in a manner and on
terms as nearly equivalent as practicable to the provisions
with respect to the Preferred Stock contained in Sections
11(a), 11(b), 11(c), 11(e), 11(h), 11(i) and 11(m), and the
provisions of Sections 7, 9, 10, 13 and 14 hereof with
respect to the Preferred Stock shall apply on like terms to
any such other shares.
(g) All Rights originally issued by the Company
subsequent to any adjustment made to the Purchase Price
hereunder shall evidence the right to purchase, at the
adjusted Purchase Price, the number of one one-thousandths
of a share of Preferred Stock purchasable from time to time
hereunder upon exercise of the Rights, all subject to
further adjustment as provided herein.
(h) Unless the Company shall have exercised its
election as provided in Section 11(i), upon each adjustment
of the Purchase Price as a result of the calculations made
in Sections 11(b) and (c), each Right outstanding
immediately prior to the making of such adjustment shall
thereafter evidence the right to purchase, at the adjusted
Purchase Price, that number of one one-thousandths of a
share of Preferred Stock (calculated to the nearest one ten-
thousandth of a share of Preferred Stock) obtained by (i)
multiplying (x) the number of one one-thousandths of a share
covered by a Right immediately prior to such adjustment by
(y) the Purchase Price in effect immediately prior to such
adjustment of the Purchase Price and (ii) dividing the
product so obtained by the Purchase Price in effect
immediately after such adjustment of the Purchase Price.
(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
one one-thousandths of a share of Preferred Stock
purchasable upon the exercise of a Right. Each of the
Rights outstanding after such adjustment of the number of
Rights shall be exercisable for the number of one
one-thousandths of a share of Preferred Stock for which a
Right was exercisable immediately prior to such adjustment.
Each Right held of record prior to such adjustment of the
number of Rights shall become that number of Rights
(calculated to the nearest one ten-thousandth) obtained by
dividing the Purchase Price in effect immediately prior to
adjustment of the Purchase Price by the Purchase Price in
effect immediately after adjustment of the Purchase Price.
The Company shall make a public announcement of its election
to adjust the number of Rights, indicating the record date
for the adjustment, and, if known at the time, the amount of
the adjustment to be made. This record date may be the date
on which the Purchase Price is adjusted or any day
thereafter, but, if the Right Certificates have been issued,
shall be at least 10 days later than the date of the public
announcement. If Right Certificates have been issued, upon
each adjustment of the number of Rights pursuant to this
Section 11(i), the Company may, as promptly as practicable,
cause to be distributed to holders of record of Right
Certificates on such record date Right Certificates
evidencing, subject to Section 14 hereof, the additional
Rights to which such holders shall be entitled as a result
of such adjustment, or, at the option of the Company, shall
cause to be distributed to such holders of record in
substitution and replacement for the Right Certificates held
by such holders prior to the date of adjustment, and upon
surrender thereof, if required by the Company, new Right
Certificates evidencing all the Rights to which such holders
shall be entitled after such adjustment. Right Certificates
so to be distributed shall be issued, executed and
countersigned in the manner provided for herein and shall be
registered in the names of the holders of record of Right
Certificates on the record date specified in the public
announcement.
(j) Irrespective of any adjustment or change in the
Purchase Price or the number of one one-thousandths of a
share of Preferred Stock issuable upon the exercise of the
Rights, the Right Certificates theretofore and thereafter
issued may continue to express the Purchase Price and the
number of one one-thousandths of a share of Preferred Stock
which were expressed in the initial Right Certificates
issued hereunder.
(k) Before taking any action that would cause an
adjustment reducing the Purchase Price below the then par
value, if any, of the Preferred Stock or other shares of
capital stock issuable upon exercise of the Rights, the
Company shall take any corporate action which may, in the
opinion of its counsel, be necessary in order that the
Company may validly and legally issue fully paid and
nonassessable shares of Preferred Stock or other such shares
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
issuing to the holder of any Right exercised after such
record date of the Preferred Stock and other capital stock
or securities of the Company, if any, issuable upon such
exercise over and above the Preferred Stock and other
capital stock or securities of the Company, if any, issuable
upon such exercise on the basis of the Purchase Price in
effect prior to such adjustment; provided, however, that the
Company shall deliver to such holder a due xxxx or other
appropriate instrument evidencing such holder's right to
receive such additional shares upon the occurrence of the
event requiring such adjustment.
(m) Anything in this Section 11 to the contrary
notwithstanding, the Company shall be entitled to make such
reductions in the Purchase Price, in addition to those
adjustments expressly required by this Section 11, as and to
the extent that it in its sole discretion shall determine to
be advisable in order that any consolidation or subdivision
of the Preferred Stock, issuance wholly for cash of any
shares of Preferred Stock at less than the current market
price, issuance wholly for cash or Preferred Stock or
securities which by their terms are convertible into or
exchangeable for Preferred Stock, dividends on Preferred
Stock payable in shares of Preferred Stock or issuance of
rights, options or warrants referred to hereinabove in
Section 11(b), hereafter made by the Company to holders of
its Preferred Stock shall not be taxable to such
stockholders.
(n) Anything in this Agreement to the contrary
notwithstanding, in the event that at any time after the
date of this Agreement and prior to the Distribution Date,
the Company shall (i) declare or pay any dividend on the
Common Stock payable in Common Stock or (ii) effect a
subdivision, combination or consolidation of the Common
Stock (by reclassification or otherwise other than by
payment of a dividend payable in Common Stock) into a
greater or lesser number of Common Stock, then in any such
case, the number of Rights associated with each share of
Common Stock then outstanding, or issued or delivered
thereafter, shall be proportionately adjusted so that the
number of Rights thereafter associated with each share of
Common Stock following any such event shall equal the result
obtained by multiplying the number of Rights associated with
each share of Common Stock immediately prior to such event
by a fraction the numerator of which shall be the total
number of shares of Common Stock outstanding immediately
prior to the occurrence of the event and the denominator of
which shall be the total number of shares of Common Stock
outstanding immediately following the occurrence of such
event. The adjustments provided for in this Section 11(n)
shall be made successively whenever such a dividend is
declared or paid or such subdivision, combination or
consolidation is effected.
(o) The Company agrees that, after the earlier of the
Distribution Date or the Stock Acquisition Date, it will
not, except as permitted by Sections 23, 24 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 diminish substantially or eliminate the
benefits intended to be afforded by the Rights.
Section 12. Certificate of Adjusted Purchase Price or
Number of Shares. Whenever an adjustment is made as provided in
Section 11 or 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 Stock or
the Preferred Stock a copy of such certificate and (c) mail a
brief summary thereof to each holder of a Right Certificate in
accordance with Section 25 hereof (if so required under Section
25 hereof). The Rights Agent shall be fully protected in relying
on any such certificate and on any adjustment therein contained
and shall not be deemed to have knowledge of any such adjustment
unless and until it shall have received such certificate.
Section 13. Consolidation, Merger or Sale or Transfer
of Assets or Earnings Power. (a) In the event, directly or
indirectly, at any time after any Person has become an Acquiring
Person, (i) the Company shall merge with and into any other
Person, (ii) any Person shall consolidate with the Company, or
any Person shall merge with and into the Company and the Company
shall be the continuing or surviving corporation of such merger
and, in connection with such merger, all or part of the Common
Stock shall be changed into or exchanged for stock or other
securities of any other Person (or of the Company) or cash or any
other property, or (iii) the Company shall sell or otherwise
transfer (or one or more of its Subsidiaries shall sell or
otherwise transfer), in one or more transactions, assets or
earning power aggregating 50% or more of the assets or earning
power of the Company and its Subsidiaries (taken as a whole) to
any other Person (other than the Company or one or more of its
wholly-owned Subsidiaries), then upon the first occurrence of
such event, proper provision shall be made so that: (A) each
holder of record of a Right (other than Rights which have become
void pursuant to Section 11(a)(ii)) shall thereafter have the
right to receive, upon the exercise thereof at a price equal to
the then current Purchase Price multiplied by the number of one
one-thousandths of a share of Preferred Stock for which a Right
was exercisable (whether or not such Right was then exercisable)
immediately prior to the time that any Person first became an
Acquiring Person (each as subsequently adjusted thereafter
pursuant to Sections 11(a)(i), 11(b), 11(c), 11(h), 11(i) and
11(m)), in accordance with the terms of this Agreement and in
lieu of Preferred Stock, such number of validly issued, fully
paid and non-assessable and freely tradeable shares of Common
Stock of the Principal Party (as defined herein) not subject to
any liens, encumbrances, rights of first refusal or other adverse
claims, as shall be equal to the result obtained by (1)
multiplying the then current Purchase Price by the number of one
one-thousandths of a share of Preferred Stock for which a Right
was exercisable immediately prior to the time that any Person
first became an Acquiring Person (as subsequently adjusted
thereafter pursuant to Sections 11(a)(i), 11(b), 11(c), 11(h),
11(i) and 11(m)) and (2) dividing that product by 50% of the then
current per share market price of the Common Stock of such
Principal Party (determined pursuant to Section 11(d)(i) hereof)
on the date of consummation of such consolidation, merger, sale
or transfer; provided, that the Purchase Price and the number of
shares of Common Stock of such Principal Party issuable upon
exercise of each Right shall be further adjusted as provided in
Section 11(f) of this Agreement to reflect any events occurring
in respect of such Principal Party after the date of such
consolidation, merger, sale or transfer; (B) such Principal Party
shall thereafter be liable for, and shall assume, by virtue of
such consolidation, merger, sale or transfer, all the obligations
and duties of the Company pursuant to this Agreement; (C) the
term "Company" shall thereafter be deemed to refer to such
Principal Party; and (D) such Principal Party shall take such
steps (including, but not limited to, the reservation of a
sufficient number of its shares of Common Stock in accordance
with Section 9 hereof) in connection with such consummation of
any such transaction as may be necessary to assure that the
provisions hereof shall thereafter be applicable, as nearly as
reasonably may be, in relation to the shares of its Common Stock
thereafter deliverable upon the exercise of the Rights; provided,
that, upon the subsequent occurrence of any consolidation,
merger, sale or transfer of assets or other extraordinary
transaction in respect of such Principal Party, each holder of a
Right shall thereupon be entitled to receive, upon exercise of a
Right and payment of the Purchase Price as provided in this
Section 13(a), such cash, shares, rights, warrants and other
property which such holder would have been entitled to receive
had such holder, at the time of such transaction, owned the
Common Stock of the Principal Party receivable upon the exercise
of a Right pursuant to this Section 13(a), and such Principal
Party shall take such steps (including, but not limited to,
reservation of shares of stock) as may be necessary to permit the
subsequent exercise of the Rights in accordance with the terms
hereof for such cash, shares, rights, warrants and other
property.
(b) "Principal Party" shall mean
(i) in the case of any transaction described in
clauses (i) or (ii) of the first sentence of Section 13(a)
hereof: (A) the Person that is the issuer of the securities
into which the shares of Common Stock are converted in such
merger or consolidation, or, if there is more than one such
issuer, the issuer the shares of Common Stock of which have
the greatest aggregate market value of shares outstanding,
or (B) if no securities are so issued, (x) the Person that
is the other party to the merger, if such Person survives
said merger, or, if there is more than one such Person, the
Person the shares of Common Stock of which have the greatest
aggregate market value of shares outstanding or (y) if the
Person that is the other party to the merger does not
survive the merger, the Person that does survive the merger
(including the Company if it survives) or (z) the Person
resulting from the consolidation; and
(ii) in the case of any transaction described in
clause (iii) of the first sentence in Section 13(a) hereof,
the Person that is the party receiving the greatest portion
of the assets or earning power transferred pursuant to such
transaction or transactions, or, if each Person that is a
party to such transaction or transactions receives the same
portion of the assets or earning power so transferred or if
the Person receiving the greatest portion of the assets or
earning power cannot be determined, whichever of such
Persons as is the issuer of Common Stock having the greatest
aggregate market value of shares outstanding;
provided, however, that in any such case described in the
foregoing clause (b)(i) or (b)(ii), if the Common Stock of such
Person is not at such time or has not been continuously over the
preceding 12-month period registered under Section 12 of the
Exchange Act, then (1) if such Person is a direct or indirect
Subsidiary of another Person the Common Stock of which is and has
been so registered, the term "Principal Party" shall refer to
such other Person, or (2) if such Person is a Subsidiary,
directly or indirectly, of more than one Person, the Common Stock
of all of which is and has been so registered, the term
"Principal Party" shall refer to whichever of such Persons is the
issuer of Common Stock having the greatest aggregate market value
of shares outstanding, or (3) if such Person is owned, directly
or indirectly, by a joint venture formed by two or more Persons
that are not owned, directly or indirectly, by the same Person,
the rules set forth in clauses (1) and (2) above shall apply to
each of the owners having an interest in the venture as if the
Person owned by the joint venture was a Subsidiary of both or all
of such joint venturers, and the Principal Party in each such
case shall bear the obligations set forth in this Section 13 in
the same ratio as its interest in such Person bears to the total
of such interests.
(c) The Company shall not consummate any
consolidation, merger, sale or transfer referred to in Section
13(a) hereof unless prior thereto the Company and the Principal
Party involved therein shall have executed and delivered to the
Rights Agent an agreement confirming that the requirements of
Sections 13(a) and (b) hereof shall promptly be performed in
accordance with their terms and that such consolidation, merger,
sale or transfer of assets shall not result in a default by the
Principal Party under this Agreement as the same shall have been
assumed by the Principal Party pursuant to Sections 13(a) and (b)
hereof and providing that, as soon as practicable after executing
such agreement pursuant to this Section 13, the Principal Party
will:
(i) prepare and file a registration statement
under the Securities Act, if necessary, with respect to the
Rights and the securities purchasable upon exercise of the
Rights on an appropriate form, use its best efforts to cause
such registration statement to become effective as soon as
practicable after such filing and use its best efforts to
cause such registration statement to remain effective (with
a prospectus at all times meeting the requirements of the
Securities Act) until the Final Expiration Date, and
similarly comply with applicable state securities laws;
(ii) use its best efforts, if the Common Stock of
the Principal Party shall be listed or admitted to trading
on the New York Stock Exchange or on another national
securities exchange, to list or admit to trading (or
continue the listing of) the Rights and the securities
purchasable upon exercise of the Rights on the New York
Stock Exchange or such securities exchange, or, if the
Common Stock of the Principal Party shall not be listed or
admitted to trading on the New York Stock Exchange or a
national securities exchange, to cause the Rights and the
securities receivable upon exercise of the Rights to be
reported by such other system then in use;
(iii) deliver to holders of the Rights historical
financial statements for the Principal Party which comply in
all respects with the requirements for registration on Form
10 (or any successor form) under the Exchange Act; and
(iv) obtain waivers of any rights of first
refusal or preemptive rights in respect of the Common Stock
of the Principal Party subject to purchase upon exercise of
outstanding Rights.
(d) In case the Principal Party has provision in any
of its authorized securities or in its certificate of
incorporation or by-laws or other instrument governing its
corporate affairs, which provision would have the effect of (i)
causing such Principal Party to issue (other than to holders of
Rights pursuant to this Section 13), in connection with, or as a
consequence of, the consummation of a transaction referred to in
this Section 13, shares of Common Stock of such Principal Party
at less than the then current market price per share thereof
(determined pursuant to Section 11(d) hereof) or securities
exercisable for, or convertible into, Common Stock of such
Principal Party at less than such then current market price, or
(ii) providing for any special payment, tax or similar provision
in connection with the issuance of the Common Stock of such
Principal Party pursuant to the provisions of Section 13, then,
in such event, the Company hereby agrees with each holder of
Rights that it shall not consummate any such transaction unless
prior thereto the Company and such Principal Party shall have
executed and delivered to the Rights Agent a supplemental
agreement providing that the provision in question of such
Principal Party shall have been cancelled, waived or amended, or
that the authorized securities shall be redeemed, so that the
applicable provision will have no effect in connection with, or
as a consequence of, the consummation of the proposed
transaction.
(e) The Company covenants and agrees that it shall
not, at any time after a Person first becomes an Acquiring
Person, enter into any transaction of the type contemplated by
clauses (i), (ii) or (iii) of Section 13(a) hereof if (x) at the
time of or immediately after such consolidation, merger, sale,
transfer or other transaction there are any rights, warrants or
other instruments or securities outstanding or agreements in
effect which would substantially diminish or otherwise eliminate
the benefits intended to be afforded by the Rights, (y) prior to,
simultaneously with or immediately after such consolidation,
merger, sale, transfer of other transaction, the stockholders of
the Person who constitutes, or would constitute, the Principal
Party for purposes of Section 13(a) hereof shall have received a
distribution of Rights previously owned by such Person or any of
its Affiliates or Associates or (z) the form or nature of
organization of the Principal Party would preclude or limit the
exercisability of the Rights.
Section 14. Fractional Rights and Fractional Shares.
(a) The Company shall not be required to issue fractions of
Rights or to distribute Right Certificates which evidence
fractional Rights. In lieu of such fractional Rights, there
shall be paid to the registered holders of the Right Certificates
with regard to which such fractional Rights would otherwise be
issuable, an amount in cash equal to the same fraction of the
current market value of a whole Right. For the purposes of this
Section 14(a), the current market value of a whole Right shall be
the closing price of the Rights for the Trading Day immediately
prior to the date on which such fractional Rights would have been
otherwise issuable. The closing price for any day shall be the
last sale price, regular way, or, in case no such sale takes
place on such day, the average of the closing bid and asked
prices, regular way, in either case as reported in the principal
consolidated transaction reporting system with respect to secu-
rities 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
of the Company. If on any such date no such market maker is
making a market in the Rights, the fair value of the Rights on
such date as determined in good faith by the Board of Directors
of the Company shall be used.
(b) The Company shall not be required to issue
fractions of Preferred Stock (other than fractions which are
integral multiples of one one-thousandth of a share of Preferred
Stock) upon exercise of the Rights or to distribute certificates
which evidence fractional shares of Preferred Stock (other than
fractions which are integral multiples of one one-thousandth of a
share of Preferred Stock). Interests in fractions of Preferred
Stock in integral multiples of one one-thousandth of a share of
Preferred Stock may, at the election of the Company, be evidenced
by depositary receipts, pursuant to an appropriate agreement
between the Company and a depositary selected by it; provided,
that such agreement shall provide that the holders of such
depositary receipts shall have all the rights, privileges and
preferences to which they are entitled as beneficial owners of
the Preferred Stock represented by such depositary receipts. In
lieu of fractional shares of Preferred Stock that are not
integral multiples of one one-thousandth of a share of Preferred
Stock, the Company shall pay to the registered holders of Right
Certificates at the time such Rights are exercised as herein
provided an amount in cash equal to the same fraction of the
current market value of one share of Preferred Stock. For the
purposes of this Section 14(b), the current market value of a
share of Preferred Stock shall be the closing price of a share of
Preferred Stock (as determined pursuant to Section 11(d)(i)
hereof) for the Trading Day immediately prior to the date of such
exercise.
(c) The holder of a Right by the acceptance of the
Right expressly waives his right to receive any fractional Rights
or any fractional shares upon exercise of a Right (except as
provided above).
Section 15. Rights of Action. All rights of action in
respect of this Agreement, excepting the rights of action given
to the Rights Agent under Section 18 hereof, are vested in the
respective registered holders of the Right Certificates (and,
prior to the Distribution Date, the registered holders of the
Common Stock); and any registered holder of any Right Certificate
(or, prior to the Distribution Date, of the Common Stock),
without the consent of the Rights Agent or of the holder of any
other Right Certificate (or, prior to the Distribution Date, of
the Common Stock), on his own behalf and for his own benefit, may
enforce, and may institute and maintain any suit, action or
proceeding against the Company to enforce, or otherwise act in
respect of, his right to exercise the Rights evidenced by such
Right Certificate (or, prior to the Distribution Date, such
Common Stock) in the manner provided in such Right Certificate
and in this Agreement. Without limiting the foregoing or any
remedies available to the holders of Rights, it is specifically
acknowledged that the holders of Rights would not have an
adequate remedy at law for any breach of this Agreement and will
be entitled to specific performance of the obligations under, and
injunctive relief against actual or threatened violations of, the
obligations of any Person subject to this Agreement.
Section 16. Agreement of Right Holders. Every holder
of a Right, by accepting the same, consents and agrees with the
Company and the Rights Agent and with every other holder of a
Right that:
(a) prior to the Distribution Date, the Rights will be
transferable only in connection with the transfer of the
Common Stock;
(b) after the Distribution Date, the Right
Certificates are transferable only on the registry books of
the Rights Agent if surrendered at the office or agency of
the Rights Agent designated for such purpose, duly endorsed
or accompanied by a proper instrument of transfer; and
(c) the Company and the Rights Agent may deem and
treat the Person in whose name the Right Certificate (or,
prior to the Distribution Date, the Common Stock
certificate) is registered as the absolute owner thereof and
of the Rights evidenced thereby (notwithstanding any nota-
tions of ownership or writing on the Right Certificates or
the Common Stock certificate made by anyone other than the
Company or the Rights Agent) for all purposes whatsoever,
and neither the Company nor the Rights Agent shall be
affected by any notice to the contrary.
Section 17. Right Certificate Holder Not Deemed a
Stockholder. No holder, as such, of any Right Certificate shall
be entitled to vote, receive dividends or be deemed for any
purpose the holder of the Preferred Stock or any other securities
of the Company which may at any time be issuable on the exercise
of the Rights represented thereby, nor shall anything contained
herein or in any Right Certificate be construed to confer upon
the holder of any Right Certificate, as such, any of the rights
of a stockholder of the Company or any right to vote for the
election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold
consent to any corporate action, or to receive notice of meetings
or other actions affecting stockholders (except as provided in
this Agreement), or to receive dividends or subscription rights,
or otherwise, until the Rights evidenced by such Right
Certificate shall have been exercised in accordance with the
provisions hereof.
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 or expense, incurred without
negligence, bad faith or willful misconduct on the part of the
Rights Agent, for anything done or omitted by the Rights Agent in
connection with the acceptance and administration of this
Agreement, including the costs and expenses of defending against
any claim of liability 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 for the Preferred Stock or Common Stock or for other
securities of the Company, instrument of assignment or transfer,
power of attorney, endorsement, affidavit, letter, notice,
direction, consent, certificate, statement, or other paper or
document believed by it to be genuine and to be signed, executed
and, where necessary, verified or acknowledged, by the proper
Person or Persons, or otherwise upon the advice of counsel as set
forth in Section 20 hereof.
Section 19. Merger or Consolidation or Change of Name
of Rights Agent. (a) Any corporation into which the Rights
Agent or any successor Rights Agent may be merged or with which
it may be consolidated, or any corporation resulting from any
merger or consolidation to which the Rights Agent or any
successor Rights Agent shall be a party, or any corporation
succeeding to the stock transfer or corporate trust powers of the
Rights Agent or any successor Rights Agent, shall be the
successor to the Rights Agent under this Agreement without the
execution or filing of any paper or any further act on the part
of any of the parties hereto; provided, that such corporation
would be eligible for appointment as a successor Rights Agent
under the provisions of Section 21 hereof. In case at the time
such successor Rights Agent shall succeed to the agency created
by this Agreement, any of the Right Certificates shall have been
countersigned but not delivered, any such successor Rights Agent
may adopt the countersignature of the predecessor Rights Agent
and deliver such Right Certificates so countersigned; and in case
at that time any of the Right Certificates shall not have been
countersigned, any successor Rights Agent may countersign such
Right Certificates either in the name of the predecessor Rights
Agent or in the name of the successor Rights Agent; and in all
such cases such Right Certificates shall have the full force
provided in the Right Certificates and in this Agreement.
(b) In case at any time the name of the Rights Agent
shall be changed and at such time any of the Right Certificates
shall have been countersigned but not delivered the Rights Agent
may adopt the countersignature under its prior name and deliver
Right Certificates so countersigned; and in case at that time any
of the Right Certificates shall not have been countersigned, the
Rights Agent may countersign such Right Certificates either in
its prior name or in its changed name and in all such cases such
Right Certificates shall have the full force provided in the
Right Certificates and in this Agreement.
Section 20. Duties of Rights Agent. The Rights Agent
undertakes only the specific duties and obligations set forth in
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 opinion
of such counsel shall be full and complete authorization and
protection to the Rights Agent and the Rights Agent shall
incur no liability as to any action taken or omitted by it
in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under
this 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
of Directors, the President, any Vice President, the
Treasurer, the Comptroller or the Secretary of the Company
and delivered to the Rights Agent; and such certificate
shall be full authorization to the Rights Agent for any
action taken or suffered in good faith by it under the
provisions of this Agreement in reliance upon such
certificate.
(c) The Rights Agent shall be liable hereunder to the
Company and any other Person only for its own negligence,
bad faith or wilful misconduct.
(d) The Rights Agent shall not be liable for or by
reason of any of the statements of fact or recitals
contained in this Agreement or in the Right Certificates
(except its countersignature thereof) or be required to
verify the same, but all such statements and recitals are
and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be under any
responsibility in respect of the validity of this Agreement
or the execution and delivery hereof (except the due
execution hereof by the Rights Agent) or in respect of the
validity or execution of any Right Certificate (except its
countersignature thereof); nor shall it be responsible for
any breach by the Company of any covenant or condition
contained in this Agreement or in any Right Certificate; nor
shall it be responsible for any change in the exercisability
of the Rights (including the Rights becoming void pursuant
to Section 11(a)(ii) hereof) or any adjustment in the terms
of the Rights (including the manner, method or amount
thereof) provided for in Sections 3, 11, 13, 23 and 24, or
the ascertaining of the existence of facts that would
require any such change or adjustment (except with respect
to the exercise of Rights evidenced by Right Certificates
after receipt of a certificate furnished pursuant to Section
12, describing such change or adjustment); nor shall it by
any act hereunder be deemed to make any representation or
warranty as to the authorization or reservation of any
shares of Preferred Stock or other securities to be issued
pursuant to this Agreement or any Right Certificate or as to
whether any shares of Preferred Stock or other securities
will, when issued, be validly authorized and issued, fully
paid and nonassessable.
(f) The Company agrees that it will inform the Rights
Agent promptly upon the Company's determination that a
Person has become an Acquiring Person, and the Rights Agent
will not be responsible for determining whether a Person has
become an Acquiring Person prior to such notification,
except as such status may be indicated in the Rights
Certificate submitted to the Rights Agent. 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 person reasonably believed by
the Rights Agent to be one of the Chairman of the Board of
Directors, the President, the Chief Financial Officer or the
Secretary 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 by it
in good faith in accordance with instructions of any such
officer or for any delay in acting while waiting for those
instructions. Any application by the Rights Agent for
written instructions from the Company may, at the option of
the Rights Agent, set forth in writing any action proposed
to be taken or omitted by the Rights Agent under this
Agreement and the date on and/or after which such action
shall be taken or such omission shall be effective. The
Rights Agent shall not be liable for any action taken by, or
omission of, the Rights Agent in accordance with a proposal
included in any such application on or after the date
specified in such application (which date shall not be less
than five Business Days after the date any officer of the
Company actually receives such application, unless any such
officer shall have consented in writing to an earlier date)
unless, prior to taking any such action (or the effective
date in the case of an omission), the Rights Agent shall
have received written instructions in response to such
application specifying the action to be taken or omitted.
(h) The Rights Agent and any stockholder, director,
officer or employee of the Rights Agent may buy, sell or
deal in any of the Rights or other securities of the Company
or become pecuniarily interested in any transaction in which
the Company may be interested, or contract with or lend
money to the Company or otherwise act as fully and freely as
though it were not 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.
(j) If, with respect to any Rights Certificate
surrendered to the Rights Agent for exercise or transfer,
the certificate contained in the form of assignment or the
form of election to purchase set forth on the reverse
thereof, as the case may be, has not been completed to
certify the holder is not an Acquiring Person (or an
Affiliate or Associate thereof), a Rights Agent shall not
take any further action with respect to such requested
exercise or transfer without first consulting with the
Company.
(k) The Rights Agent shall be under no obligation to
institute any action, suit or legal proceeding or to take
any other action likely to involve expense unless the
Company or one or more registered holders of Right
Certificates shall furnish the Rights Agent with security
and indemnity to its satisfaction for any costs and expenses
which may be incurred.
(l) The Rights Agent shall not be liable for failure
to perform any duties except as specifically set forth
herein and no implied covenants or obligations shall be read
into this Agreement against the Rights Agent.
Section 21. Change of Rights Agent. The Rights Agent
or any successor Rights Agent may resign and be discharged from
its duties under this Agreement upon 30 days' notice in writing
mailed to the Company and to each transfer agent of the Common
Stock or Preferred Stock by registered or certified mail, and,
following the Distribution Date, to the holders of the Right
Certificates by first-class mail. The Company may remove the
Rights Agent or any successor Rights Agent upon 30 days' notice
in writing, mailed to the Rights Agent or successor Rights Agent,
as the case may be, and to each transfer agent of the Common
Stock or Preferred Stock by registered or certified mail, and,
following the Distribution Date, to the holders of the Right
Certificates by first-class mail. If the Rights Agent shall
resign or be removed or shall otherwise become incapable of
acting, the Company shall appoint a successor to the Rights
Agent. If the Company shall fail to make such appointment within
a period of 30 days after giving notice of such removal or after
it has been notified in writing of such resignation or incapacity
by the resigning or incapacitated Rights Agent or by the holder
of a Right Certificate (who shall, with such notice, submit his
Right Certificate for inspection by the Company), then the
registered holder of any Right Certificate may apply to any court
of competent jurisdiction for the appointment of a new Rights
Agent. Any successor Rights Agent, whether appointed by the
Company or by such a court, shall be a corporation organized and
doing business under the laws of the United States or any State
thereof, which is authorized under such laws to exercise
corporate trust or stock transfer powers and is subject to
supervision or examination by federal or state authority and
which at the time of its appointment as Rights Agent has, or is
an affiliate of a corporation that has, 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 Stock or Preferred Stock,
and, following the Distribution Date, mail a notice thereof in
writing to the registered holders of the Right Certificates.
Failure to give any notice provided for in this Section 21,
however, or any defect therein, shall not affect the legality or
validity of the resignation or removal of the Rights Agent or the
appointment of the successor Rights Agent, as the case may be.
Section 22. Issuance of New Right Certificates.
Notwithstanding any of the provisions of this Agreement or of the
Rights to the contrary, the Company may, at its option, issue new
Right Certificates evidencing Rights in such form as may be
approved by its Board of Directors to reflect any adjustment or
change in the Purchase Price and the number or kind or class of
shares or other securities or property purchasable under the
Right Certificates made in accordance with the provisions of this
Agreement. In addition, in connection with the issuance or sale
of Common Stock following the Distribution Date and prior to the
earlier of the Redemption Date and the Final Expiration Date, the
Company may with respect to shares of Common Stock so issued or
sold pursuant to (i) the exercise of stock options, (ii) under
any employee plan or arrangement, (iii) upon the exercise,
conversion or exchange of securities notes or debentures issued
by the Company or (iv) a contractual obligation of the Company in
each case existing prior to the Distribution Date, issue Right
Certificates representing the appropriate number of Rights in
connection with such issuance or sale.
Section 23. Redemption. (a) The Board of Directors of
the Company may, at any time prior to such time as any Person
first becomes an Acquiring Person, redeem all but not less than
all the then outstanding Rights at a redemption price of $.01 per
Right, appropriately adjusted to reflect any stock split, stock
dividend or similar transaction occurring after the date hereof
(the redemption price being hereinafter referred to as the
"Redemption Price"). The redemption of the Rights may be made
effective at such time, on such basis and with such conditions as
the Board of Directors in its sole discretion may establish.
(b) Immediately upon the action of the Board of
Directors ordering the redemption of the Rights pursuant to
paragraph (a) of this Section 23 (or at such later time as the
Board of Directors may establish for the effectiveness of such
redemption), and without any further action and without any
notice, the right to exercise the Rights will terminate and the
only right thereafter of the holders of Rights shall be to
receive the Redemption Price. The Company shall promptly give
public notice of any such redemption; provided, however, that the
failure to give, or any defect in, any such notice shall not
affect the validity of such redemption. Within 10 days after
such action of the Board of Directors ordering the redemption of
the Rights (or such later time as the Board of Directors may
establish for the effectiveness of such redemption), the Company
shall mail a notice of redemption to all the holders of the then
outstanding Rights at their last addresses as they appear upon
the registry books of the Rights Agent or, prior to the Dis-
tribution Date, on the registry books of the transfer agent for
the Common Stock. Any notice which is mailed in the manner
herein provided shall be deemed given, whether or not the holder
receives the notice. Each such notice of redemption shall state
the method by which the payment of the Redemption Price will be
made.
Section 24. Exchange. (a) The Board of Directors
of the Company may, at its option, at any time after any Person
first becomes an Acquiring Person, exchange all or part of the
then outstanding and exercisable Rights (which shall not include
Rights that have become void pursuant to the provisions of
Section 11(a)(ii) hereof) for shares of Common Stock at an
exchange ratio of one share of Common Stock per Right, (such
exchange ratio being hereinafter referred to as the "Exchange
Ratio"). Notwithstanding the foregoing, the Board of Directors
shall not be empowered to effect such exchange at any time after
(1) any Person (other than an Exempt Person), together with all
Affiliates and Associates of such Person, becomes the Beneficial
Owner of shares of Common Stock aggregating 50% or more of the
shares of Common Stock then outstanding or (2) the occurrence of
an event specified in Section 13(a) hereof.
(b) Immediately upon the action of the Board of
Directors of the Company ordering the exchange of any Rights
pursuant to paragraph (a) of this Section 24 and without any
further action and without any notice, the right to exercise such
Rights shall terminate and the only right thereafter of a holder
of such Rights shall be to receive that number of shares of
Common Stock equal to the number of such Rights held by such
holder multiplied by the Exchange Ratio. The Company shall
promptly give public notice of any such exchange; provided,
however, that the failure to give, or any defect in, such notice
shall not affect the validity of such exchange. The Company
shall promptly mail a notice of any such exchange to all of the
holders of the Rights so exchanged at their last addresses as
they appear upon the registry books of the Rights Agent. Any
notice which is mailed in the manner herein provided shall be
deemed given, whether or not the holder receives the notice.
Each such notice of exchange will state the method by which the
exchange of the shares of Common Stock for Rights will be
effected and, in the event of any partial exchange, the number of
Rights which will be exchanged. Any partial exchange shall be
effected pro rata based on the number of Rights (other than
Rights which have become void pursuant to the provisions of
Section 11(a)(ii) hereof) held by each holder of Rights.
(c) In the event that there shall not be sufficient
shares of Common Stock issued but not outstanding or authorized
but unissued to permit any exchange of Rights as contemplated in
accordance with this Section 24, the Company may, in its
discretion, take such action as may be necessary to authorize
additional shares of Common Stock for issuance upon exchange of
the Rights. In the event that the Company shall determine not to
take such action or shall, after good faith effort, be unable to
take such action as may be necessary to authorize such additional
shares of Common Stock, the Company shall substitute, to the
extent of such insufficiency, for each share of Common Stock that
would otherwise be issuable upon exchange of a Right, a number of
shares of Preferred Stock or fractions thereof (or equivalent
preferred shares as such term is defined in Section 11(b)) having
an aggregate current per share market price (determined pursuant
to Section 11(d) hereof) equal to the current per share market
price of one share of Common Stock (determined pursuant to
Section 11(d) hereof) as of the date of issuance of such shares
of Preferred Stock or fractions thereof (or equivalent preferred
shares).
(d) The Company shall not, in connection with any
exchange pursuant to this Section 24, be required to issue
fractions of shares of Common Stock or to distribute certificates
which evidence fractional shares of Common Stock. In lieu of
such fractional shares of Common Stock, the Company shall pay to
the registered holders of the Right Certificates with regard to
which such fractional shares of Common Stock would otherwise be
issuable an amount in cash equal to the same fraction of the
current market value of a whole share of Common Stock. For the
purposes of this paragraph (d), the current market value of a
whole share of Common Stock shall be the closing price of a share
of Common Stock (as determined pursuant to the second sentence of
Section 11(d)(i) hereof) for the Trading Day immediately prior to
the date of exchange pursuant to this Section 24.
Section 25. Notice of Certain Events. (a) In case the
Company shall at any time after the earlier of the Distribution
Date or the Stock Acquisition Date propose (i) to pay any
dividend payable in stock of any class to the holders of its
Preferred Stock or to make any other distribution to the holders
of its Preferred Stock (other than a regular quarterly cash
dividend), (ii) to offer to the holders of its Preferred Stock
rights or warrants to subscribe for or to purchase any additional
shares of Preferred Stock or shares of stock of any class or any
other securities, rights or options, (iii) to effect any
reclassification of its Preferred Stock (other than a
reclassification involving only the subdivision of outstanding
Preferred Stock), (iv) to effect the liquidation, dissolution or
winding up of the Company, or (v) to declare or pay any dividend
on the Common Stock payable in Common Stock or to effect a
subdivision, combination or consolidation of the Common Stock (by
reclassification or otherwise than by payment of dividends in
Common Stock), then, in each such case, the Company shall give to
each holder of a Right Certificate, in accordance with Section 26
hereof, a notice of such proposed action, which shall specify the
record date for the purposes of such stock dividend, or
distribution of rights or warrants, or the date on which such
liquidation, dissolution or winding up is to take place and the
date of participation therein by the holders of the Common Stock
and/or Preferred Stock, if any such date is to be fixed, and such
notice shall be so given in the case of any action covered by
clause (i) or (ii) above at least 10 days prior to the record
date for determining holders of the Preferred Stock for purposes
of such action, and in the case of any such other action, at
least 10 days prior to the date of the taking of such proposed
action or the date of participation therein by the holders of the
Common Stock and/or Preferred Stock, whichever shall be the
earlier.
(b) In case any event described in Section 11(a)(ii)
or Section 13 shall occur then the Company shall as soon as
practicable thereafter give to each holder of a Right Certificate
(or if occurring prior to the Distribution Date, the holders of
the Common Stock) in accordance with Section 26 hereof, a notice
of the occurrence of such event, which notice shall describe such
event and the consequences of such event to holders of Rights
under Section 11(a)(ii) and Section 13 hereof.
Section 26. Notices. Notices or demands authorized by
this Agreement to be given or made by the Rights Agent or by the
holder of any Right Certificate to or on the Company shall be
sufficiently given or made if sent by first-class mail, postage
prepaid, addressed (until another address is filed in writing
with the Rights Agent) as follows:
Associates First Capital Corporation
000 X. Xxxxxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Attention: Corporate Secretary
Subject to the provisions of Section 21 hereof, any notice or
demand authorized by this Agreement to be given or made by the
Company or by the holder of any Right Certificate to or on the
Rights Agent shall be sufficiently given or made if sent by
first-class mail, postage prepaid, addressed (until another
address is filed in writing with the Company) as follows:
First Chicago Trust Company of Xxx Xxxx
Xxxxx 0000 - 0xx Xxxxx
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxx Xxxx, XX 00000
Attention: Xxxxxx X. XxXxxxxxx
Notices or demands authorized by this Agreement to be given or
made by the Company or the Rights Agent to the holder of any
Right Certificate shall be sufficiently given or made if sent by
first-class mail, postage prepaid, addressed to such holder at
the address of such holder as shown on the registry books of the
Company.
Section 27. Supplements and Amendments. Except as
provided in the penultimate sentence of this Section 27, for so
long as the Rights are then redeemable, 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
the Rights. At any time when the Rights are no longer
redeemable, except as provided in the penultimate sentence of
this Section 27, the Company may, and the Rights Agent shall, if
the Company so directs, supplement or amend this Agreement
without the approval of any holders of Rights Certificates in
order to (i) cure any ambiguity, (ii) correct or supplement any
provision contained herein which may be defective or inconsistent
with any other provisions herein, (iii) shorten or lengthen any
time period hereunder or (iv) change or supplement the provisions
hereunder in any manner which the Company may deem necessary or
desirable; provided, that no such supplement or amendment shall
adversely affect the interests of the holders of Rights as such
(other than an Acquiring Person or an Affiliate or Associate of
an Acquiring Person), and no such amendment may cause the rights
again to become redeemable or cause the Agreement again to become
amendable other than in accordance with this sentence.
Notwithstanding anything contained in this Agreement to the
contrary, no supplement or amendment shall be made which changes
the Redemption Price. Upon the delivery of a certificate from an
appropriate officer of the Company which states that the proposed
supplement or amendment is in compliance with the terms of this
Section 27, the Rights Agent shall execute such supplement or
amendment.
Section 28. Successors. All the covenants and
provisions of this Agreement by or for the benefit of the Company
or the Rights Agent shall bind and inure to the benefit of their
respective successors and assigns hereunder.
Section 29. Benefits of this Agreement. Nothing in
this Agreement shall be construed to give 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
Common Stock) any legal or equitable right, remedy or claim under
this Agreement; but this Agreement shall be for the sole and
exclusive benefit of the Company, the Rights Agent and the
registered holders of the Right Certificates (and, prior to the
Distribution Date, the Common Stock).
Section 30. Severability. If any term, provision,
covenant or restriction of this Agreement or applicable to 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 31. Governing Law. This Agreement and each
Right Certificate issued hereunder shall be deemed to be a
contract made under the laws of the State of Delaware and for all
purposes shall be governed by and construed in accordance with
the laws of such State applicable to contracts to be made and
performed entirely within such State.
Section 32. Counterparts. This Agreement may be
executed in any number of counterparts and each of such
counterparts shall for all purposes be deemed to be an original,
and all such counterparts shall together constitute but one and
the same instrument.
Section 33. Descriptive Headings. Descriptive
headings of the several Sections of this Agreement are inserted
for convenience only and shall not control or affect the meaning
or construction of any of the provisions hereof.
Section 34. Administration. The Board of Directors of
the Company shall have the exclusive power and authority to
administer and interpret the provisions for this Agreement and to
exercise all rights and powers specifically granted to the Board
of Directors or the Company or as may be necessary or advisable
in the administration of this Agreement. All such actions,
calculations, determinations and interpretations which are done
or made by the Board of Directors in good faith shall be final,
conclusive and binding on the Company, the Rights Agent, the
holders of the Rights and all other parties and shall not subject
the Board of Directors to any liability to the holders of the
Rights.
[The remainder of this page intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and attested, all as of the day and
year first above written.
Attest: ASSOCIATES FIRST
CAPITAL CORPORATION
By /s/ X. X. Xxxxxx By /s/ X. X. Xxxxxxxxxxx
Name: X. X. Xxxxxx Name: X. X. Xxxxxxxxxxx
Title: Assistant Secretary Title: Executive Vice President
FIRST CHICAGO TRUST
COMPANY OF NEW YORK
Attest:
By /s/ Xxxxxx X. XxXxxxxxx By /s/ Xxxxxx Xxxxxxxxxx
Name: Xxxxxx X. XxXxxxxxx Name:Xxxxxx Xxxxxxxxxx
Title: Vice President Title: Assistant Vice President
Exhibit A
FORM
OF
CERTIFICATE OF DESIGNATIONS
OF
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
OF
ASSOCIATES FIRST CAPITAL CORPORATION
(Pursuant to Section 151 of the
General Corporation Law of the State of Delaware)
___________________
Associates First Capital Corporation, a corporation
organized and existing under the General Corporation Law of the
State of Delaware (hereinafter called the "Company"), hereby
certifies that the following resolution was duly adopted by the
Board of Directors of the Company as required by Section 151 of
the General Corporation Law of the State of Delaware at a meeting
duly called and held on April 8, 1998:
RESOLVED, that pursuant to the authority granted to and
vested in the Board of Directors of the Company (hereinafter
called the "Board of Directors" or the "Board") in accordance
with the provisions of the Company's Amended and Restated
Certificate of Incorporation, as amended to date (hereinafter
called the "Certificate of Incorporation"), the Board of
Directors hereby creates a series of Preferred Stock, par value
$.01 per share (the "Preferred Stock"), of the Company and hereby
states the designation and number of shares, and fixes the
relative rights, powers and preferences thereof, and the
limitations thereof, as follows:
Section 1. Designation and Amount. The shares of such
series shall be designated as "Series A Junior Participating
Preferred Stock" (the "Series A Preferred Stock") and the number
of shares constituting the Series A Preferred Stock shall be
350,000. Such number of shares may be increased or decreased by
resolution of the Board of Directors; provided, that no decrease
shall reduce the number of shares of Series A Preferred Stock to
a number less than the number of shares then outstanding plus the
number of shares reserved for issuance upon the exercise of
outstanding options, rights or warrants or upon the conversion of
any outstanding securities issued by the Company convertible into
Series A Preferred Stock.
Section 2. Dividends and Distributions.
(A) Subject to the rights of the holders of any shares
of any series of Preferred Stock of the Company (the "Preferred
Stock") (or any similar stock) ranking prior and superior to the
Series A Preferred Stock with respect to dividends, the holders
of shares of Series A Preferred Stock, in preference to the
holders of Class A Common Stock, par value $.01 per share, of the
Company (the "Common Stock") and of any other stock of the
Company ranking junior to the Series A Preferred Stock, shall be
entitled to receive, when, as and if declared by the Board of
Directors out of funds legally available for such purpose,
quarterly dividends payable in cash on the last day of February,
May, August, and November in each year (each such date being
referred to herein as a "Dividend Payment Date"), commencing on
the first Dividend Payment Date after the first issuance of a
share or fraction of a share of Series A Preferred Stock, in an
amount per share (rounded to the nearest cent) equal to the
greater of (a) $1 or (b) subject to the provision for adjustment
hereinafter set forth, 1,000 times the aggregate per share amount
of all cash dividends, and 1,000 times the aggregate per share
amount (payable in kind) of all non-cash dividends or other
distributions other than a dividend payable in shares of Common
Stock, declared on the Common Stock since the immediately
preceding Dividend Payment Date or, with respect to the first
Dividend Payment Date, since the first issuance of any share or
fraction of a share of Series A Preferred Stock. In the event
the Company shall at any time after April 20, 1998, declare or
pay any dividend on the Common Stock payable in shares of Common
Stock, or effect a subdivision or combination or consolidation of
the outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock,
then in each such case the amount to which holders of shares of
Series A Preferred Stock were entitled immediately prior to such
event under clause (b) of the preceding sentence shall be
adjusted by multiplying such amount by a fraction, the numerator
of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding
immediately prior to such event.
(B) The Company shall declare a dividend or
distribution on the Series A Preferred Stock as provided in
paragraph (A) of this Section immediately after it declares a
dividend or distribution on the Common Stock (other than a
dividend payable in shares of Common Stock); provided, that, in
the event no dividend or distribution shall have been declared on
the Common Stock during the period between any Dividend Payment
Date and the next subsequent Dividend Payment Date, a dividend of
$1 per share on the Series A Preferred Stock shall nevertheless
be payable, when, as and if declared, on such subsequent Dividend
Payment Date.
(C) Dividends shall begin to accrue and be cumulative,
whether or not earned or declared, on outstanding shares of
Series A Preferred Stock from the Dividend Payment Date next
preceding the date of issue of such shares, unless the date of
issue of such shares is prior to the record date for the first
Dividend Payment Date, in which case dividends on such shares
shall begin to accrue from the date of issue of such shares, or
unless the date of issue is a Dividend Payment Date or is a date
after the record date for the determination of holders of shares
of Series A Preferred Stock entitled to receive a quarterly
dividend and before such Dividend Payment Date, in either of
which events such dividends shall begin to accrue and be
cumulative from such Dividend Payment Date. Accrued but unpaid
dividends shall not bear interest. Dividends paid on the shares
of Series A Preferred Stock in an amount less than the total
amount of such dividends at the time accrued and payable on such
shares shall be allocated pro rata on a share-by-share basis
among all such shares at the time outstanding. The Board of
Directors may fix a record date for the determination of holders
of shares of Series A Preferred Stock entitled to receive payment
of a dividend or distribution declared thereon, which record date
shall be not more than 60 days prior to the date fixed for the
payment thereof.
Section 3. Voting Rights. The holders of shares of
Series A Preferred Stock shall have the following voting rights;
(A) Subject to the provision for adjustment
hereinafter set forth and except as otherwise provided in
the Certificate of Incorporation or required by law, each
share of Series A Preferred Stock shall entitle the holder
thereof to 1,000 votes on all matters upon which the holders
of the Common Stock of the Company are entitled to vote. In
the event the Company shall at any time after April 20,
1998, declare or pay any dividend on the Common Stock
payable in shares of Common Stock, or effect a subdivision
or combination or consolidation of the outstanding shares of
Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then in
each such case the number of votes per share to which
holders of shares of Series A Preferred Stock were entitled
immediately prior to such event shall be adjusted by
multiplying such number by a fraction, the numerator of
which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding
immediately prior to such event.
(B) Except as otherwise provided herein, in the
Certificate of Incorporation or in any other Certificate of
Designations creating a series of Preferred Stock or any
similar stock, and except as otherwise required by law, the
holders of shares of Series A Preferred Stock and the
holders of shares of Common Stock and any other capital
stock of the Company having general voting rights shall vote
together as one class on all matters submitted to a vote of
stockholders of the Company.
(C) Except as set forth herein, or as otherwise
provided by law, holders of Series A Preferred Stock shall
have no special voting rights and their consent shall not be
required (except to the extent they are entitled to vote
with holders of Common Stock as set forth herein) for taking
any corporate action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Preferred Stock as
provided in Section 2 are in arrears, thereafter and until
all accrued and unpaid dividends and distributions, whether
or not earned or declared, on shares of Series A Preferred
Stock outstanding shall have been paid in full, the Company
shall not:
(i) declare or pay dividends, or make any other
distributions, on any shares of stock ranking junior
(as to dividends) to the Series A Preferred Stock;
(ii) declare or pay dividends, or make any other
distributions, on any shares of stock ranking on a
parity (as to dividends) with the Series A Preferred
Stock, except dividends paid ratably on the Series A
Preferred Stock and all such parity stock on which
dividends are payable or in arrears in proportion to
the total amounts to which the holders of all such
shares are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior
(either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred
Stock, provided that the Company may at any time
redeem, purchase or otherwise acquire shares of any
such junior stock in exchange for shares of any stock
of the Company ranking junior (as to dividends and upon
dissolution, liquidation or winding up) to the Series A
Preferred Stock or rights, warrants or options to
acquire such junior stock;
(iv) redeem or purchase or otherwise acquire for
consideration any shares of Series A Preferred Stock,
or any shares of stock ranking on a parity (either as
to dividends or upon liquidation, dissolution or
winding up) with the Series A Preferred Stock, except
in accordance with a purchase offer made in writing or
by publication (as determined by the Board of
Directors) to all holders of such shares upon such
terms as the Board of Directors, after consideration of
the respective annual dividend rates and other relative
rights and preferences of the respective series and
classes, shall determine in good faith will result in
fair and equitable treatment among the respective
series or classes.
(B) The Company shall not permit any subsidiary of the
Company to purchase or otherwise acquire for consideration
any shares of stock of the Company unless the Company could,
under paragraph (A) of this Section 4, purchase or otherwise
acquire such shares at such time and in such manner.
Section 5. Reacquired Shares. Any shares of Series A
Preferred Stock purchased or otherwise acquired by the Company in
any manner whatsoever shall be retired and cancelled promptly
after the acquisition thereof.
Section 6. Liquidation, Dissolution or Winding Up.
Upon any liquidation, dissolution or winding up of the Company,
no distribution shall be made (A) to the holders of the Common
Stock or of shares of any other stock of the Company ranking
junior, upon liquidation, dissolution or winding up, to the
Series A Preferred Stock unless, prior thereto, the holders of
shares of Series A Preferred Stock shall have received $1,000 per
share, plus an amount equal to accrued and unpaid dividends and
distributions thereon, whether or not earned or declared, to the
date of such payment, provided that the holders of shares of
Series A Preferred Stock shall be entitled to receive an
aggregate amount per share, subject to the provision for ad-
justment hereinafter set forth, equal to 1,000 times the
aggregate amount to be distributed per share to holders of shares
of Common Stock, or (B) to the holders of shares of stock ranking
on a parity upon liquidation, dissolution or winding up with the
Series A Preferred Stock, except distributions made ratably on
the Series A Preferred Stock and all such parity stock in pro-
portion to the total amounts to which the holders of all such
shares are entitled upon such liquidation, dissolution or winding
up. In the event the Company shall at any time after April 20,
1998 declare or pay any dividend on the Common Stock payable in
shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in
shares of Common Stock) into a greater or lesser number of shares
of Common Stock, then in each such case the aggregate amount to
which holders of shares of Series A Preferred Stock were entitled
immediately prior to such event under the proviso in clause (A)
of the preceding sentence shall be adjusted by multiplying such
amount by a fraction the numerator of which is the number of
shares of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such event.
Section 7. Consolidation, Merger, etc. In case the
Company shall enter into any consolidation, merger, combination
or other transaction in which the shares of Common Stock are
converted into, exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case
each share of Series A Preferred Stock shall at the same time be
similarly converted into, exchanged for or changed into an amount
per share (subject to the provision for adjustment hereinafter
set forth) equal to 1,000 times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as
the case may be, into which or for which each share of Common
Stock is converted, exchanged or converted. In the event the
Company shall at any time after April 20, 1998 declare or pay any
dividend on the Common Stock payable in shares of Common Stock,
or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock,
then in each such case the amount set forth in the preceding
sentence with respect to the conversion, exchange or change of
shares of Series A Preferred Stock shall be adjusted by
multiplying such amount by a fraction, the numerator of which is
the number of shares of Common Stock outstanding immediately
after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to
such event.
Section 8. No Redemption. The shares of Series A
Preferred Stock shall not be redeemable from any holder.
Section 9. Rank. The Series A Preferred Stock shall
rank, with respect to the payment of dividends and the
distribution of assets upon liquidation, dissolution or winding
up of the Company, junior to all other series of Preferred Stock
and senior to the Common Stock.
Section 10. Amendment. If any proposed amendment to
the Certificate of Incorporation (including this Certificate of
Designations) would alter, change or repeal any of the
preferences, powers or special rights given to the Series A
Preferred Stock so as to affect the Series A Preferred Stock
adversely, then the holders of the Series A Preferred Stock shall
be entitled to vote separately as a class upon such amendment,
and the affirmative vote of two-thirds of the outstanding shares
of the Series A Preferred Stock, voting separately as a class,
shall be necessary for the adoption thereof, in addition to such
other vote as may be required by the General Corporation Law of
the State of Delaware.
IN WITNESS WHEREOF, this Certificate of Designations is
executed on behalf of the Company by its
and attested by its Secretary this day of , 1998.
________________________________________
Name:
Title:
Attest:
______________________
Secretary
Exhibit B
Form of Right Certificate
Certificate No. R- ____ ___ Rights
NOT EXERCISABLE AFTER April 13, 2008 OR EARLIER IF
REDEMPTION OR EXCHANGE OCCURS. THE RIGHTS ARE
SUBJECT TO REDEMPTION AT $.01 PER RIGHT AND TO EXCHANGE
ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER
CERTAIN CIRCUMSTANCES, AS SET FORTH IN THE RIGHTS AGREEMENT,
RIGHTS OWNED BY OR TRANSFERRED TO ANY PERSON WHO BECOMES AN
ACQUIRING PERSON (AS DEFINED IN THE RIGHTS AGREEMENT) AND
CERTAIN TRANSFEREES THEREOF WILL BECOME NULL AND VOID AND
WILL NO LONGER BE TRANSFERABLE.
Right Certificate
ASSOCIATES FIRST CAPITAL CORPORATION
This certifies that ___________ or registered assigns,
is the registered owner of the number of Rights set forth above,
each of which entitles the owner thereof, subject to the terms,
provisions and conditions of the Rights Agreement, dated as of
April 13, 1998, as the same may be amended from time to time (the
"Rights Agreement"), between Associates First Capital
Corporation, a Delaware corporation (the "Company"), and First
Chicago Trust Company of New York (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., New York City time, on April 13, 2008 at the office or
agency of the Rights Agent designated for such purpose, or of its
successor as Rights Agent, one one-thousandth of a fully paid
non-assessable share of Series A Junior Participating Preferred
Stock, par value $.01 per share (the "Preferred Stock"), of the
Company, at a purchase price of $400 per one one-thousandth of a
share of Preferred Stock (the "Purchase Price"), upon
presentation and surrender of this Right Certificate with the
Form of Election to Purchase duly executed. The number of Rights
evidenced by this Rights Certificate (and the number of one
one-thousandths of a share of Preferred Stock which may be
purchased upon exercise hereof) set forth above, and the Purchase
Price set forth above, are the number and Purchase Price as of
April 20, 1998, based on the Preferred Stock as constituted at
such date. As provided in the Rights Agreement, the Purchase
Price, the number of one one-thousandths of a share of Preferred
Stock (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.
Notwithstanding anything in the Rights Agreement to the
contrary, from and after the time (the "invalidation time") when
any person first becomes an Acquiring Person (as defined in the
Rights Agreement), the Rights evidenced hereby beneficially owned
by (x) any Acquiring Person (or any Affiliate (as defined in the
Rights Agreement) or Associate (as defined in the Rights
Agreement) of any Acquiring Person), (y) a transferee of any
Acquiring Person (or any such Affiliate or Associate) who becomes
a transferee after the invalidation time or (z) a transferee of
any Acquiring Person (or any such Affiliate or Associate) who
became a transferee prior to or concurrently with the
invalidation time pursuant to either (I) a transfer from the
Acquiring Person to holders of its equity securities or to any
person with whom it has any continuing agreement, arrangement or
understanding regarding the transferred Rights or (II) a transfer
which the Board of Directors of the Company has determined is
part of a plan, arrangement or understanding which has the
purpose or effect of avoiding the provisions of Section 11(a)(ii)
of the Rights Agreement, and subsequent transferees of such
persons, shall be void without any further action and any holder
hereof shall thereafter have no rights whatsoever with respect to
the Rights evidenced hereby under any provision of the Rights
Agreement.
This Right Certificate is subject to all of the terms,
provisions and conditions of the Rights Agreement, which terms,
provisions and conditions are hereby incorporated herein by
reference and made a part hereof and to which Rights Agreement
reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities
hereunder of the Rights Agent, the Company and the holders of the
Right Certificates. Copies of the Rights Agreement are on file
at the principal executive offices of the Company and the
above-mentioned office or agency of the Rights Agent. The
Company will mail to the holder of this Right Certificate a copy
of the Rights Agreement without charge after receipt of a written
request therefor.
This Right Certificate, with or without other Right
Certificates, upon surrender at the office or agency of the
Rights Agent designated for such purpose, may be exchanged for
another Right Certificate or Right Certificates of like tenor and
date evidencing Rights entitling the holder to purchase a like
aggregate number of shares of Preferred Stock as the Rights
evidenced by the Right Certificate or Right Certificates
surrendered shall have entitled such holder to purchase. If this
Right Certificate shall be exercised in part, the holder shall be
entitled to receive upon surrender hereof another Right
Certificate or Right Certificates for the number of whole Rights
not exercised.
Subject to the provisions of the Rights Agreement, the
Rights evidenced by this Certificate (i) may be redeemed by the
Company at a redemption price of $.01 per Right or (ii) may be
exchanged in whole or in part for shares of Preferred Stock or
shares of the Company's Class A Common Stock, par value $.01 per
share.
No fractional shares of Preferred Stock will be issued
upon the exercise of any Right or Rights evidenced hereby (other
than fractions which are integral multiples of one one-thousandth
of a share of Preferred Stock, which may, at the election of the
Company, be evidenced by depositary receipts), but in lieu
thereof a cash payment will be made, as provided in the Rights
Agreement.
No holder of this Right Certificate, as such, shall be
entitled to vote or receive dividends or be deemed for any
purpose the holder of the Preferred Stock or of any other
securities of the Company which may at any time be issuable on
the exercise hereof, nor shall anything contained in the Rights
Agreement or herein be construed to confer upon the holder
hereof, as such, any of the rights of a stockholder of the
Company or any right to vote for the election of directors or
upon any matter submitted to stockholders at any meeting thereof,
or to give or withhold consent to any corporate action, or to
receive notice of meetings or other actions affecting
stockholders (except as provided in the Rights Agreement) or to
receive dividends or subscription rights, or otherwise, until the
Right or Rights evidenced by this Right certificate shall have
been exercised as provided in the Rights Agreement.
This Right Certificate shall not be valid or obligatory
for any purpose until it shall have been countersigned by the
Rights Agent.
WITNESS the facsimile signature of the proper officers
of the Company and its corporate seal. Dated as of
_____________.
ATTEST: ASSOCIATES FIRST
CAPITAL CORPORATION
By __________________ By __________________
Countersigned:
_______________________,
as Rights Agent
By _________________________
Authorized Signature
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 transfer unto ___________________________
____________________________________________________________
(Please print name and address of transferee)
____________________________________________________________
Rights represented by this Right Certificate, together with all
right, title and interest therein, and does hereby irrevocably
constitute and appoint ___________________ Attorney, to transfer
said Rights on the books of the within-named Company, with full
power of substitution.
Dated: _________________
______________________________
Signature
Signature Guaranteed:
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.
------------------------------------------------------------
(To be completed)
The undersigned hereby certifies that the Rights
evidenced by this Right Certificate are not beneficially owned
by, were not acquired by the undersigned from, and are not being
assigned to, an Acquiring Person or an Affiliate or Associate
thereof (as defined in the Rights Agreement).
________________________
Signature
Form of Reverse Side of Right Certificate - continued
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to exercise
Rights represented by the Rights Certificate)
To ASSOCIATES FIRST CAPITAL CORPORATION:
The undersigned hereby irrevocably elects to exercise
__________________ Rights represented by this Right Certificate
to purchase the shares of Preferred Stock (or other securities or
property) issuable upon the exercise of such Rights and requests
that certificates for such shares of Preferred Stock (or such
other securities) be issued in the name of:
______________________________________________________________
(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
delivery to:
Please insert social security
or other identifying number
______________________________________________________________
(Please print name and address)
______________________________________________________________
Dated: ____________________
________________________
Signature
(Signature must conform to holder specified on Right Certificate)
Signature Guaranteed:
Signature must be guaranteed by a member of 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.
Form of Reverse Side of Right Certificate -- continued
_____________________________________________(To be completed)
The undersigned certifies that the Rights evidenced by
this Right Certificate are not beneficially owned by, and were
not acquired by the undersigned from, an Acquiring Person or an
Affiliate or Associate thereof (as defined in the Rights
Agreement)
______________________
Signature
_________________________________________________________________
NOTICE
The signature in the Form of Assignment or Form of
Election to Purchase, as the case may be, must conform to the
name as written upon the face of this Right Certificate in every
particular, without alteration or enlargement or any change
whatsoever.
In the event the certification set forth above in the
Form of Assignment or the Form of Election to Purchase, as the
case may be, is not completed, such Assignment or Election to
Purchase will not be honored.
Exhibit C
UNDER CERTAIN CIRCUMSTANCES, AS SET FORTH IN THE RIGHTS
AGREEMENT, RIGHTS OWNED BY OR TRANSFERRED TO ANY PERSON WHO
BECOMES AN ACQUIRING PERSON (AS DEFINED IN THE RIGHTS
AGREEMENT) AND CERTAIN TRANSFEREES THEREOF WILL BECOME NULL
AND VOID AND WILL NO LONGER BE TRANSFERABLE.
SUMMARY OF RIGHTS TO PURCHASE
Shares of Preferred Stock
On April 8, 1998, the Board of Directors of Associates
First Capital Corporation (the "Company") declared a dividend of
one preferred stock purchase right (a "Right") for each
outstanding share of Class A Common Stock, par value $.01 per
share, of the Company (the "Common Stock"). The dividend is
payable on April 20, 1998 (the "Record Date") to the stockholders
of record on that date. Each Right entitles the registered
holder to purchase from the Company one one-thousandth of a share
of Series A Junior Participating Preferred Stock, par value $.01
per share (the "Preferred Stock") of the Company at a price of
$400 per one one-thousandth of a share of Preferred Stock (the
"Purchase Price"), subject to adjustment. The description and
terms of the Rights are set forth in a Rights Agreement, dated as
of April 13, 1998, as the same may be amended from time to time
(the "Rights Agreement"), between the Company and First Chicago
Trust Company of New York, as Rights Agent (the "Rights Agent").
Until the earlier to occur of (i) 10 days following a
public announcement that a person or group of affiliated or
associated persons (an "Acquiring Person") have acquired
beneficial ownership of 15% or more of the outstanding shares of
Common Stock or (ii) 10 business days (or such later date as may
be determined by action of the Board of Directors prior to such
time as any person or group of affiliated persons becomes an
Acquiring Person) following the commencement of, or announcement
of an intention to make, a tender offer or exchange offer the
consummation of which would result in the beneficial ownership by
a person or group of 15% or more of the outstanding shares of
Common Stock (the earlier of such dates being called the
"Distribution Date"), the Rights will be evidenced, with respect
to any of the Common Stock certificates outstanding as of the
Record Date, by such Common Stock certificate together with a
copy of this Summary of Rights.
The Rights Agreement provides that, until the
Distribution Date (or earlier redemption or expiration of the
Rights), the Rights will be transferred with and only with the
Common Stock. Until the Distribution Date (or earlier redemption
or expiration of the Rights), new Common Stock certificates
issued after the Record Date upon transfer or new issuances of
Common Stock will contain a notation incorporating the Rights
Agreement by reference. Until the Distribution Date (or earlier
redemption or expiration of the Rights), the surrender for
transfer of any certificates for shares of Common Stock
outstanding as of the Record Date, even without such notation or
a copy of this Summary of Rights, will also constitute the
transfer of the Rights associated with the shares of Common Stock
represented by such certificate. As soon as practicable
following the Distribution Date, separate certificates evidencing
the Rights ("Right Certificates") will be mailed to holders of
record of the Common Stock as of the close of business on the
Distribution Date and such separate Right Certificates alone will
evidence the Rights.
The Rights are not exercisable until the Distribution
Date. The Rights will expire on April 13, 2008 (the "Final
Expiration Date"), unless the Final Expiration Date is extended
or unless the Rights are earlier redeemed or exchanged by the
Company, in each case as described below.
The Purchase Price payable, and the number of shares of
Preferred Stock or other securities or property issuable, upon
exercise of the Rights are subject to adjustment from time to
time to prevent dilution (i) in the event of a stock dividend on,
or a subdivision, combination or reclassification of, the
Preferred Stock, (ii) upon the grant to holders of the Preferred
Stock of certain rights or warrants to subscribe for or purchase
Preferred Stock at a price, or securities convertible into
Preferred Stock with a conversion price, less than the
then-current market price of the Preferred Stock or (iii) upon
the distribution to holders of the Preferred Stock of evidences
of indebtedness or assets (excluding regular periodic cash
dividends or dividends payable in Preferred Stock) or of
subscription rights or warrants (other than those referred to
above).
The number of outstanding Rights are also subject to
adjustment in the event of a stock split of the Common Stock or a
stock dividend on the Common Stock payable in shares of Common
Stock or subdivisions, consolidations or combinations of the
Common Stock occurring, in any such case, prior to the
Distribution Date.
Shares of Preferred Stock purchasable upon exercise of
the Rights will not be redeemable. Each share of Preferred Stock
will be entitled, when, as and if declared, to a minimum
preferential quarterly dividend payment of $1.00 per share but
will be entitled to an aggregate dividend of 1,000 times the
dividend declared per share of Common Stock. In the event of
liquidation, the holders of the Preferred Stock will be entitled
to a minimum preferential liquidation payment of $1,000 per share
(plus any accrued but unpaid dividends) but will be entitled to
an aggregate payment of 1,000 times the payment made per share of
Common Stock. Each share of Preferred Stock will have 1,000
votes, voting together with the Common Stock. Finally, in the
event of any merger, consolidation or other transaction in which
shares of Common Stock are converted or exchanged, each share of
Preferred Stock will be entitled to receive 1,000 times the
amount received per share of Common Stock. These rights are
protected by customary antidilution provisions.
Because of the nature of the Preferred Stock's
dividend, liquidation and voting rights, the value of the one
one-thousandth interest in a share of Preferred Stock purchasable
upon exercise of each Right should approximate the value of one
share of Common Stock.
In the event that any person or group of affiliated or
associated persons becomes an Acquiring Person, proper provision
will be made so that each holder of a Right, other than Rights
beneficially owned by the Acquiring Person or any affiliate or
associate of the Acquiring Person or certain other transferees
(which will thereupon become void), will thereafter have the
right to receive upon exercise of a Right at the then current
exercise price of the Right, that number of shares of Common
Stock having a market value of two times the exercise price of
the Right.
In the event that, after a person or group has become
an Acquiring Person, the Company is acquired in a merger or other
business combination transaction or 50% or more of its
consolidated assets or earning power are sold, proper provision
will be made so that each holder of a Right (other than Rights
beneficially owned by an Acquiring Person or any affiliate or
associate of the Acquiring Person or certain other transferees
which will have become void) 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 of the
person with whom the Company has engaged in the foregoing
transaction (or its parent), which number of shares at the time
of such transaction will have a market value of two times the
exercise price of the Right.
At any time after any person or group becomes an
Acquiring Person and prior to the acquisition by such person or
group of 50% or more of the outstanding shares of Common Stock or
the occurrence of an event described in the prior paragraph, the
Board of Directors of the Company may exchange the Rights (other
than Rights owned by such person or group which will have become
void), in whole or in part, at an exchange ratio of one share of
Common Stock, or one one-thousandth of a share of Preferred Stock
(or of a share of a class or series of the Company's preferred
stock having equivalent rights, preferences and privileges), per
Right (subject to adjustment).
With certain exceptions, no adjustment in the Purchase
Price will be required until cumulative adjustments require an
adjustment of at least 1% in such Purchase Price. No fractional
shares of Preferred Stock will be issued (other than fractions
which are integral multiples of one one-thousandth of a share of
Preferred Stock, which may, at the election of the Company, be
evidenced by depositary receipts) and in lieu thereof, an
adjustment in cash will be made based on the market price of the
Preferred Stock on the last trading day prior to the date of
exercise.
At any time prior to the time an Acquiring Person
becomes such, the Board of Directors of the Company may redeem
the Rights in whole, but not in part, at a price of $.01 per
Right (the "Redemption Price"). The redemption of the Rights may
be made effective at such time, on such basis and with such
conditions as the Board of Directors in its sole discretion may
establish. 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.
For so long as the Rights are then redeemable, the
Company may, except with respect to the redemption price, amend
the Rights in any manner. After the Rights are no longer
redeemable, the Company may, except with respect to the
redemption price, amend the Rights in any manner that does not
adversely affect the interests of holders of the Rights.
Until a Right is exercised, the holder thereof, as
such, will have no rights as a stockholder of the Company,
including, without limitation, the right to vote or to receive
dividends.
A copy of the Rights Agreement has been filed with the
Securities and Exchange Commission as an Exhibit to a
Registration Statement on Form 8-A dated April 13, 1998. A copy
of the Rights Agreement is available free of charge from the
Company. This summary description of the Rights does not purport
to be complete and is qualified in its entirety by reference to
the Rights Agreement, as the same may be amended from time to
time, which is hereby incorporated herein by reference.
