AMENDED AND RESTATED RIGHTS AGREEMENT
This Amended and Restated Rights Agreement (the "Agreement") dated as of
November 25, 2005, between NATIONAL R.V. HOLDINGS, INC., a Delaware corporation
(the "Company"), and CONTINENTAL STOCK TRANSFER & TRUST COMPANY (the "Rights
Agent");
W I T N E S S E T H:
WHEREAS, the Company and the Rights Agent were parties to that certain
Rights Agreement dated as of August 20, 1996 (the "Rights Agreement");
WHEREAS, in connection with the adoption of the Rights Agreement, the Board
of Directors of the Company (the "Board of Directors") had authorized and
declared a dividend distribution of one right (a "Right") for each Common Share
(as defined) of the Company outstanding at the Close of Business (as defined) on
September 4, 1996 (the "Record Date"), each such right representing the right to
purchase one ten-thousandth of a share of Series B Junior Participating
Preferred Stock, $.01 par value, of the Company, and shall have the preferences,
limitations and relative rights set forth in the Certificate of Amendment
attached hereto as Exhibit A;
WHEREAS, in connection with the adoption of the Rights Agreement, the Board
of Directors further authorized the issuance of one Right with respect to each
Common Share that became or 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 defined in Sections 3 and 7);
WHEREAS, the parties wish to amend the Rights Agreement to eliminate
certain provisions relating to Continuing Directors;
WHEREAS, this Agreement has been approved by the Board of Directors;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein set forth, the parties hereby agree as follows:
Section 1. Certain Definitions. For purposes of this Agreement, the
following terms have the meanings indicated:
(a) "Acquiring Person" shall mean any Person who or which, together with
all Affiliates and Associates of such Person, shall be the Beneficial Owner of
15 percent or more of the Common Shares of the Company then outstanding;
provided, however, that an Acquiring Person shall not include (i) the Company,
any Subsidiary of the Company, any employee benefit plan ("Plan") of the Company
or of a Subsidiary of the Company or any Person holding Common Shares for or
pursuant to the terms of any such Plan, (ii) any Person who becomes such a
Beneficial Owner as the result of a Sanctioned Tender Offer, (iii) any Person
which, together with its Affiliates and Associates, shall be the Beneficial
Owner of 15 percent or more of the Common Shares of the Company
outstanding at the Close of Business on the Record Date, or (iv) any Person who
or which, together with all Affiliates and Associates of such Person, would be
an Acquiring Person solely by reason of (A) being the Beneficial Owner of Common
Shares of the Company, the Beneficial Ownership of which was acquired by such
Person pursuant to any action or transaction or series of related actions or
transactions approved by the Board of Directors before such Person otherwise
became an Acquiring Person or (B) a reduction in the number of issued and
outstanding Common Shares of the Company pursuant to a transaction or a series
of related transactions approved by the Board of Directors; provided, further,
however, that in the event that such Person described in the foregoing clause
(iv) does not become an Acquiring Person by reason of subclause (A) or (B) of
said clause (iv), such Person shall nonetheless become an Acquiring Person in
the event such Person thereafter acquires Beneficial Ownership of an additional
1% of the Common Shares of the Company, unless the acquisition of such
additional Common Shares would not result in such Person becoming an Acquiring
Person by reason of subclause (A) or (B) of said clause (iv). Notwithstanding
the foregoing, if any Person, or any of its Affiliates and Associates become the
Beneficial Owner of Common Shares such that such Person would become an
Acquiring Person, then if the Board of Directors of the Company determines in
good faith that such Person has become an Acquiring Person inadvertently, and
such Person divests as promptly as practicable a sufficient number of Common
Shares so that such Person would no longer be an Acquiring Person, then such
Person shall not be deemed an Acquiring Person for any purposes under this
Agreement. For purposes of this subsection (a), in determining the percentage of
the outstanding shares of Common Shares with respect to which a Person is the
Beneficial Owner (A) all shares as to which such Person is deemed the Beneficial
Owner shall be deemed outstanding and (B) shares which are subject to issuance
upon the exercise or conversion of outstanding conversion rights, rights,
warrants and options other than those referred to in (A) shall not be deemed
outstanding. Any determination made by the Board of Directors as to whether any
Person is or is not an Acquiring Person shall be conclusive and binding upon all
holders of Rights.
(b) "Affiliate" and "Associate" shall have the respective meanings ascribed
to such terms in Rule 12b-2 of the General Rules and Regulations under the
Exchange Act.
(c) A Person shall be deemed the "Beneficial Owner" of and shall be deemed
to "beneficially own" any securities:
(i) which such Person or any of such Person's Affiliates or Associates
beneficially owns, directly or indirectly, for purposes of Section 13(d) of
the Exchange Act and Regulation 13D-G thereunder (or any comparable or
successor law or regulation), in each case as in effect on the date hereof;
or
(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 or the fulfillment of a
condition or both) pursuant to any agreement, arrangement or understanding
(other than customary arrangements
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with and between underwriters and selling group members with respect to a
bona fide public offering of securities), or upon the exercise of
conversion rights, exchange rights, rights (other than the Rights),
warrants or options, or otherwise; provided, however, that a Person shall
not be deemed the Beneficial Owner of, or to beneficially own, securities
tendered pursuant to a tender or exchange offer made by or on behalf of
such Person or any of such Person's Affiliates or Associates until such
tendered securities are accepted for purchase or exchange; or (B) the right
to vote, alone or in concert with others, 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 under
this clause (B) if the agreement, arrangement or understanding to vote such
security (1) arises solely from a revocable proxy given to such Person or
any of such Person's Affiliates or Associates in response to a public proxy
solicitation made pursuant to, and in accordance with, the applicable rules
and regulations of the Exchange Act and (2) is not also then reportable on
Schedule 13D under the Exchange Act (or any comparable or successor
report); or
(iii) which are beneficially owned, directly or indirectly, by any
other Person (or any Affiliate or Associate of such other Person) with
which such Person or any of such Person's Affiliates or Associates has any
agreement, arrangement or understanding (other than customary arrangements
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 (other than voting pursuant to a revocable proxy as
described in 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, Sunday or a
day on which banking institutions in the state of New York are authorized or
obligated by law or executive order to close.
(e) "Close of Business" on any given date shall mean 5 p.m., New York time,
on such date; provided, however, that if such date is not a Business Day, it
shall mean 5 p.m., New York time, on the next succeeding Business Day.
(f) "Common Shares" when used with reference to the Company (or without
express reference to another Person) shall mean shares of Common Stock, $.01 par
value, of the Company or any other shares of capital stock of the Company into
which the Common Shares are reclassified or changed. "Common Shares" when used
with reference to any Person other than the Company shall mean shares of the
common stock of such Person (or other class of equity securities or equity
interests) having power to control or direct the management of such Person or,
if such Person is a Subsidiary of another Person, of the Person which ultimately
controls such first-mentioned Person and which has issued and outstanding such
common stock (or such other class of equity securities or equity interests).
(g) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, as in effect on the date hereof.
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(h) "Person" shall mean any individual, firm, partnership, corporation,
association, group (as such term is used in Rule 13d-5 under the Exchange Act)
or other entity, and shall include any successor (by merger or otherwise) of
such entity.
(i) "Preferred Shares" shall mean shares of Series B Junior Participating
Preferred Stock, $.01 par value, of the Company.
(j) "Purchase Price" shall mean the price to be paid for each one
ten-thousandth of a Preferred Share pursuant to the exercise of a Right, which
price is, as of the date hereof, as set forth in Section 7(c). The Purchase
Price is subject to adjustment from time to time as set forth in Sections 11 and
13.
(k) "Sanctioned Tender Offer" shall mean a tender or exchange offer for all
outstanding Common Shares of the Company at a price and on terms which a
majority of the Board of Directors determines to be fair to the shareholders of
the Company (taking into account all factors that the Board of Directors deems
relevant including, without limitation, prices that could reasonably be achieved
if the Company or its assets were sold on an orderly basis designed to realize
maximum value) and otherwise in the best interests of the Company and its
shareholders (other than the Person or any Affiliate or Associate thereof on
whose behalf the offer is being made); provided, however, that (i) such
determination is made by the Board of Directors prior to the purchase of shares
under such tender or exchange offer and (ii) a majority of the members of the
Board of Directors are not Acquiring Persons or Affiliates, Associates, nominees
or representatives of an Acquiring Person.
(l) "Shares Acquisition Date" shall mean the first date of public
announcement (which for the purposes of this definition shall include, without
limitation, a report filed pursuant to Section 13(d) under the Exchange Act) by
the Company or an Acquiring Person that an Acquiring Person has become such.
(m) "Subsidiary" shall mean, with reference to any Person, any corporation
or other entity of which an amount of the voting securities sufficient to elect
at least a majority of the directors of such corporation or the members of the
governing body of such other entity, as the case may be, is beneficially owned,
directly or indirectly, by such Person or 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 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. Issuance of Right Certificates.
(a) Until the earlier of the Close of Business (i) on the 10th day (subject
to extension by the Board of Directors as provided below) after the Shares
Acquisition Date or (ii) on the 10th Business Day
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(subject to extension by the Board of Directors as provided below) after the
date of the commencement by any Person (other than the Company, any Subsidiary
of the Company, any Plan of the Company or of any Subsidiary of the Company, or
any entity holding Common Shares of the Company for or pursuant to the terms of
any such Plan) of, or of the first public announcement of the intention of any
Person (other than the Company, any Subsidiary of the Company, any Plan of the
Company or of any Subsidiary of the Company, or any entity holding Common Shares
of the Company for or pursuant to the terms of any such Plan) to commence, a
tender or exchange offer (other than a Sanctioned Tender Offer) the consummation
of which would result in any Person becoming the Beneficial Owner of 15 percent
or more of the outstanding Common Shares of the Company, including any such date
which is after the date of this Agreement and prior to the issuance of the
Rights (the earlier of such dates described in clauses (i) and (ii) being herein
referred to as the "Distribution Date"), (x) the Rights will be evidenced by the
certificates for Common Shares of the Company (which certificates shall also be
deemed to be Right Certificates) or, as the case may be, certificates issued
subsequent to the Record Date and bearing the legend set forth in Section 3(c)
(and, in neither case, by separate Right Certificates) and the record holders of
such certificates for Common Shares shall be the record holders of the Rights
represented thereby and (y) the Rights and the right to receive Right
Certificates will be transferable only simultaneously with and together with the
transfer of Common Shares of the Company. The ten-day periods referred to in
clauses (i) and (ii) of the preceding sentence may be extended by the Board of
Directors. Until the Distribution Date (or the earlier of the Redemption Date or
the Final Expiration Date), the surrender for transfer of such certificates for
Common Shares shall also constitute the surrender for transfer of the Rights
associated with the Common Shares represented thereby. As soon as practicable
after the Distribution Date, after notification by the Company, the Rights Agent
will send, by first-class, postage prepaid mail, to each record holder of Common
Shares of the Company as of the Close of Business on the Distribution Date, at
the address of such holder shown on the records of the Company, a Right
Certificate, in substantially the form of Exhibit B hereto, evidencing one Right
for each Common Share so held. As of the Distribution Date, the Rights will be
evidenced solely by such Right Certificates and may be transferred by the
transfer of the Right Certificates as permitted hereby, separately and apart
from any transfer of one or more Common Shares of the Company, and the holders
of such Right Certificates as listed in the records of the Company or any
transfer agent or registrar for the Rights shall be the record holders thereof.
(b) On the Record Date, or as soon as practicable thereafter, the Company
will send a copy of a Summary of the Rights in substantially the form attached
hereto as Exhibit C (the "Summary of Rights"), by first-class, postage-prepaid
mail, to each record holder of Common Shares of the Company as of the close of
business on the Record Date, at the address of such holder shown on the records
of the Company.
(c) Rights shall be issued in respect of all Common Shares of the Company
which are issued after the Record Date but prior to the earliest of the
Distribution Date, the Redemption Date, the Exchange Date or the Final
Expiration Date. Certificates for such Common Shares shall also be deemed to be
certificates for Rights, and shall bear the following legend:
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This certificate also evidences and entitles the holder hereof to certain
Rights as set forth in a Rights Agreement between National R.V. Holdings,
Inc. (the "Company"), and Continental Stock Transfer & Trust Company, as
Rights Agent, dated as of August 20, 1996 (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 the Company. Under
certain circumstances, as set forth in the Rights Agreement, such Rights
will be evidenced by separate certificates and will no longer be evidenced
by this certificate. The Company will mail to the holder of this
certificate a copy of the Rights Agreement without charge after receipt of
a written request therefor. Under certain circumstances, Rights
beneficially owned by an Acquiring Person or any Affiliate or Associate
thereof (as such terms are defined in the Rights Agreement) and any
subsequent holder of such Rights may become null and void.
(d) Certificates for Common Shares, if any, issued after the Distribution
Date but prior to the earlier of the Redemption Date or the Final Expiration
Date shall bear the following legend:
This certificate does not evidence any Right issued pursuant to the terms
of a Rights Agreement between National R.V. Holdings, Inc. and Continental
Stock Transfer & Trust Company, dated as of August 20, 1996.
Section 4. Form of Right Certificates. The Right Certificates (and the
forms of election to purchase, assignment and certificate to be printed on the
reverse thereof), when, as and if issued, shall be substantially the same as
Exhibit B hereto and may have such marks of identification or designation and
such legends, summaries or endorsements printed thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of this Agreement,
or as may be required to comply with any applicable law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any stock
exchange on which the Common Shares of the Company or the Rights may from time
to time be listed, or to conform to usage. Subject to the provisions of Section
11 and Section 22, the Right Certificates, whenever issued, which are issued in
respect of Common Shares which were issued and outstanding as of the Close of
Business on the Distribution Date, shall be dated as of the Close of Business on
the Distribution Date, and on their face shall entitle the holders thereof to
purchase such number of Preferred Shares (including fractional shares which are
integral multiples of one ten-thousandth of a share) as shall be set forth
therein at the price per one ten-thousandth of a Preferred Share set forth
therein, but the amount and type of securities purchasable upon exercise of each
Right 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
its Chairman of the Board, President or any Vice President, either manually or
by facsimile signature, and have affixed thereto the Company's seal or a
facsimile thereof which shall be attested by the Secretary, or an Assistant
Secretary, of the Company, either manually or by facsimile signature. The Right
Certificates shall be countersigned manually by the Rights Agent and shall not
be valid for any purpose unless so countersigned. In case any officer of the
Company who shall have signed any of the Right Certificates shall cease to be
such officer of the Company before countersignature by the Rights Agent and
issuance and delivery by the Company, such Right Certificates, nevertheless, may
be countersigned by the Rights Agent, and issued and delivered by the Company
with the same force and effect as though the person who signed such Right
Certificates had not ceased to be such officer of the Company; and any Right
Certificate may be signed on behalf of the Company by any person who, at the
actual date of the execution of such Right Certificate, shall be a proper
officer of the Company to sign such Right Certificate, although at the date of
the execution of this Agreement any such person was not such an officer.
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(b) Following the Distribution Date, the Rights Agent will keep or cause to
be kept, at one of its offices in New York, New York, books for registration and
transfer of the Right Certificates issued hereunder. Such books shall show the
names and addresses of the respective holders of the Right Certificates, the
number of Rights evidenced 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(f) and 14, at any time after
the Close of Business on the Distribution Date, and at or prior to the Close of
Business on 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 Preferred Shares as the Right
Certificate or Right Certificates surrendered then entitled such holder to
purchase. Any registered holder desiring to transfer, split up, combine or
exchange any Right Certificate shall make such request in writing delivered to
the Rights Agent, and shall surrender the Right Certificate or Right
Certificates to be transferred, split up, combined or exchanged at the office of
the Rights Agent with the form of assignment on the reverse side thereof (or
with a written instrument of transfer in form satisfactory to the Company and
the Rights Agent enclosed with such Right Certificate), executed by the
registered holder thereof or his attorney authorized in writing, and with such
signature guaranteed. Neither the Rights Agent nor the Company shall be
obligated to take any action whatsoever with respect to the transfer of any such
surrendered Right Certificate until the certificate set forth following the form
of assignment on the reverse side of such Right Certificate shall have been
completed and executed by the registered holder thereof or his attorney
authorized in writing, and the Company shall have been provided such additional
evidence of the identity of the Beneficial Owner (or former Beneficial Owner) of
the Rights represented by such Right Certificate or the Affiliates or Associates
of such Beneficial Owner (or former Beneficial Owner) as the Company shall
reasonably request. Upon receipt of such executed form of assignment and
certificate and of such additional evidence, if requested, 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.
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(b) Upon receipt by the Company and the Rights Agent of evidence reasonably
satisfactory to them of the loss, theft, destruction or mutilation of a Right
Certificate, and, in case of loss, theft or destruction, of indemnity or
security reasonably satisfactory to them, and, at the Company's request,
reimbursement to the Company and the Rights Agent of all reasonable expenses
incidental thereto, and upon surrender to the Rights Agent and cancellation of
the Right Certificate if mutilated, the Company shall issue and deliver a new
Right Certificate of like tenor to the Rights Agent for delivery to the
registered owner in lieu of the Right Certificate so lost, stolen, destroyed or
mutilated.
Section 7. Exercise of Rights: Purchase Price: Expiration Date of Rights.
(a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 9(c), the registered holder of any Right Certificate
may exercise the Rights evidenced thereby (except as otherwise provided herein)
in whole or in part at any time after the Distribution Date upon surrender of
the Right Certificate, with the form of election to purchase on the reverse side
thereof and certificate thereon duly executed (with signatures duly guaranteed),
to the Rights Agent at the office or agency of the Rights Agent designated for
such purpose, together with payment of the Purchase Price with respect to each
Right exercised, at or prior to the earliest of (i) the Close of Business on
August 19, 2006 (the "Final Expiration Date"), (ii) the consummation of a
transaction contemplated by Section 13(e), (iii) the time at which such Rights
are exchanged (the "Exchange Date") as provided in Section 24, or (iv) the time
at which the Rights are redeemed (the "Redemption Date") as provided in Section
23.
(c) The Purchase Price for each one ten-thousandth of a Preferred Share
pursuant to the exercise of a Right shall initially be $30.00, and shall be
payable in lawful money of the United States of America in accordance with
Section 7(d). The Purchase Price and the number of Preferred Shares to be
acquired upon exercise of a Right shall be subject to adjustment from time to
time as provided in Sections 11 and 13.
(d) Upon receipt of a Right Certificate representing exercisable Rights,
with the form of election to purchase and form of certificate thereon duly
executed, accompanied by payment of the Purchase Price for the shares 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 in cash, or
by bank certified check or bank draft payable to the order of the Company, and
such additional evidence of the identity of the Beneficial Owner (or former
Beneficial Owner) of the Rights represented by such Right Certificate or the
Affiliates or Associates thereof as the Company may reasonably request, the
Rights Agent shall thereupon promptly (i) requisition from any transfer agent of
the Preferred Shares certificates for the number of Preferred Shares to be
purchased and the Company hereby irrevocably authorizes its transfer agent to
comply with all such requests, and/or, as provided in Section 14, requisition
from the depositary agent depositary receipts representing such number of one
ten-thousandths of a Preferred Share as are to be purchased (in which case
certificates for the Preferred Shares represented by such receipts shall be
deposited by the transfer agent with the depositary agent) and the Company will
direct 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, (iii) promptly after receipt
of such certificates or depositary receipts, cause the same to be delivered to
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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. Notwithstanding the foregoing
provisions of this Section 7(d), the Company may suspend the issuance of
Preferred Shares upon exercise of Rights for a reasonable period, not in excess
of 90 days, during which the Company seeks to register under the Securities Act
of 1933, as amended, and any applicable securities law of any jurisdiction, the
Preferred Shares to be issued pursuant to the Rights; provided, however, that
nothing contained in this Section 7(d) shall relieve the Company of its
obligations under Section 9(d).
(e) In case the registered holder of any Right Certificate shall exercise
less than all the Rights evidenced thereby, a new Right Certificate evidencing
Rights equivalent to the Rights remaining unexercised shall be issued by the
Rights Agent to the registered holder of such Right Certificate or to his duly
authorized assigns, subject to the provisions of Section 14.
(f) Notwithstanding anything in this Agreement to the contrary, upon the
occurrence of any of the events described in Sections 11(a)(ii) and 13(a), any
Rights beneficially owned by (i) an Acquiring Person or any Affiliate or
Associate of an Acquiring Person, (ii) a transferee of an Acquiring Person or of
any Affiliate or Associate of such Acquiring Person who becomes a transferee
after the Acquiring Person becomes such (other than a transferee in a
transaction described in Section 23(b)) or (iii) a transferee who acquired such
Rights from an Acquiring Person or an Affiliate or Associate of an Acquiring
Person prior to or concurrently with the Acquiring Person becoming such in a
transaction which the Board of Directors has determined to be part of an
arrangement which has as a primary purpose or effect the avoidance of this
Section 7(f), shall become null and void, and any holder of such Rights (whether
or not such holder is an Acquiring Person or an Affiliate or Associate of an
Acquiring Person) shall thereafter have no right to exercise such Rights under
any provision of this Agreement or otherwise. Any Right Certificate issued
pursuant to Section 3 that represents Rights beneficially owned by an Acquiring
Person or any Affiliate or Associate thereof and any Right Certificate issued at
any time upon the transfer of any Rights to an Acquiring Person or any Affiliate
or Associate thereof or to any nominee of such Acquiring Person, Affiliate or
Associate, and any Right Certificate issued pursuant to Sections 6 or 11 upon
transfer, exchange, replacement or adjustment of any other Right Certificate
referred to in this sentence, shall or shall be deemed to contain the following
legend:
The Rights represented by this Right Certificate are or were beneficially
owned by a Person who was or became an Acquiring Person or Affiliate or
Associate of an Acquiring Person (as such terms are defined in the Rights
Agreement). This Right Certificate and the Rights represented hereby may
become void in the circumstances specified in the Rights Agreement. 9
The Company shall use reasonable efforts to ensure that the provisions of this
Section 7(f) are complied with, but shall have no liability to any holder of
Rights or any other Person as a result of its failure to make any determination
under this Section 7(f) with respect to an Acquiring Person or its Affiliates,
Associates or transferees.
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 canceled form,
or, if surrendered to the Rights Agent, shall be canceled by it, and no Right
Certificates shall be issued in lieu thereof except as expressly permitted by
any of the provisions of this Agreement. The Company shall deliver to the Rights
Agent for cancellation and retirement, and the Rights Agent shall so cancel and
retire, any other Right Certificate purchased or acquired by the Company
otherwise than upon the exercise thereof. The Rights Agent shall deliver all
canceled Right Certificates to the Company, or shall, at the written request of
the Company, destroy such canceled Right Certificates, and in such case shall
deliver a certificate of destruction thereof to the Company.
Section 9. Reservation and Availability of Capital Shares: Regulatory
Approvals.
(a) The Company covenants and agrees that it will cause to be reserved and
kept available out of its authorized and unissued Preferred Shares (and, will
use its best efforts, following the occurrence of a Section 11(a)(ii) event, to
cause to be reserved and kept available out of its authorized and unissued
Common Shares and/or other securities), the number of Preferred Shares (and,
following the occurrence of a Section 11 (a)(ii) event, the number of Common
Shares and/or other securities) as will from time to time be sufficient to
permit the exercise in full of all outstanding Rights.
(b) The Company shall use every reasonable effort to obtain, as soon as
practicable following the Shares Acquisition Date (to the extent not theretofore
obtained), such regulatory approvals and take such other action as may be
necessary for it to issue and/or sell securities issuable upon the exercise of
the Rights.
(c) Notwithstanding any provision of this Agreement to the contrary, the
Rights shall not be exercisable pursuant to Section 7 or pursuant to the
provisions contemplated by Section 11(a)(ii) hereof (a) unless and until any
regulatory approvals required for the issuance and/or sale of securities upon
such exercise have been obtained, (b) in any jurisdiction if the requisite
qualification in such jurisdiction shall not have been obtained, or (c) if the
exercise thereof, or the issuance and/or sale of the securities issuable upon
such exercise, shall not be permitted under any applicable law or administrative
or judicial regulation or order.
(d) The Company covenants and agrees that it will take all such action as
may be necessary to ensure that all Preferred Shares (and, following the
occurrence of a Section 11(a)(ii) event, Common Shares and/or other securities)
delivered upon exercise of Rights shall, at the time of delivery of the
certificates for such shares or other securities (subject to payment of the
Purchase Price), be duly and validly authorized and issued and fully paid and
nonassessable.
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(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 Preferred Shares (or Common Shares and/or other securities as the case may
be) 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 for the Preferred Shares (or Common Shares and/or other securities,
as the case may be) in a name other than that of, the registered holder of the
Right Certificate evidencing Rights surrendered for exercise or to issue or
deliver any certificates for Preferred Shares (or Common Shares and/or other
securities, as the case may be) upon the exercise of any Rights until any such
tax shall have been paid (any such tax being payable by the holder of such Right
Certificate at the time of surrender) or until it has been established to the
Company's satisfaction that no such tax is due.
Section 10. Preferred Shares Record Date. Each Person in whose name any
certificate for Preferred Shares (or Common Shares and/or other securities, as
the case may be) is issued upon the exercise of Rights shall for all purposes be
deemed to have become the holder of record of the Preferred Shares (or Common
Shares and/or other securities, as the case may be) 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 transfer books for
the Preferred Shares (or Common Shares and/or other securities, as the case may
be) 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 such transfer books are open.
Section 11. Adjustment of Purchase Price. Number of Shares or Number of
Rights. The Purchase Price, the number and kind of shares which may be purchased
upon exercise of a 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 and prior to the Close of Business on the Final Expiration Date (A)
declare or pay any dividend on the Preferred Shares payable in Preferred Shares,
(B) subdivide the outstanding Preferred Shares, (C) combine the outstanding
Preferred Shares into a smaller number of Preferred Shares or (D) issue any
shares of its capital stock in a reclassification of the Preferred Shares
(including any such reclassification in connection with a consolidation or
merger in which the Company is the continuing or surviving corporation), then
and in each such event, the Purchase Price in effect at the time of the record
date for such dividend or on the effective date of such subdivision, combination
or reclassification, and the number and kind of Preferred Shares or capital
stock, as the case may be, 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 Preferred Shares or capital
stock as the case may be, which, if such Right had been exercised immediately
prior to such date and at a time when the Right was exercisable and the transfer
books of the Company were open, he would have owned upon such exercise and been
entitled to receive by virtue of such dividend, subdivision, combination or
reclassification. If an event occurs which would require an adjustment under
both this Section 11(a)(i) and Section 11(a)(ii), the adjustment provided for in
this Section 11(a)(i) shall be in addition to, and shall be made prior to, any
adjustment required pursuant to Section 11(a)(ii).
11
(ii) Subject to Section 24, in the event that any Person (other than a
Person excluded from the definition of Acquiring Person in Section 1(a)), alone
or together with its Affiliates and Associates, shall become an Acquiring Person
(except in a transaction to which the provisions of Section 13(a) apply), then,
upon the occurrence of such event (a "Section 11(a)(ii) event"), proper
provision shall be made so that each holder of a Right, except as provided in
Section 7(f), shall thereafter have a right to receive for each Right, upon
exercise thereof in accordance with the terms of this Agreement and payment of
the then-current Purchase Price, in lieu of one ten-thousandth of a Preferred
Share, such number of Common Shares of the Company as shall equal the result
obtained by multiplying the then-current Purchase Price by the then number of
one ten-thousandths of a Preferred Share for which a Right was exercisable
immediately prior to the first occurrence of a Section 11(a)(ii) event, and
dividing that product by 50 percent of the current per share market price
(determined pursuant to Section 11(d)) for Common Shares of the Company on the
date of such first occurrence (such number of shares being hereinafter referred
to as the "Adjustment Shares"), provided that such provision shall not be
effective until such time as the Rights are no longer subject to redemption
pursuant to Section 23(a).
(iii) In lieu of issuing Common Shares in accordance with Section
11(a)(ii), the Company may, if the Board of Directors determines that such
action is necessary or appropriate and not contrary to the interest of holders
of Rights, and, in the event that the number of Common Shares which are
authorized by the Company's Certificate of Incorporation but not outstanding or
reserved for issuance for purposes other than upon exercise of the Rights is not
sufficient to permit the exercise in full of the Rights in accordance with
Section 11(a)(ii), the Company shall, with respect to each Right, make adequate
provision to substitute for all or a portion of the Adjustment Shares upon
payment of the applicable Purchase Price (A) cash, (B) other equity securities
of the Company (including, without limitation, shares of preferred stock or
units of preferred stock having the same value as Common Shares (such shares or
units of preferred stock, "common stock equivalents")), (C) debt securities of
the Company, (D) other assets or (E) any combination of the foregoing, having an
aggregate value equal to the Adjustment Shares for which substitution is made.
To the extent that the Company determines that some action is to be taken
pursuant to this Section 11(a)(iii), the Company shall provide, subject to
Section 7(f), that such action shall apply uniformly to all outstanding Rights.
(b) In the event that the Company shall at any time after the Close of
Business on the Record Date and prior to the Close of Business on the earlier of
the Redemption Date or the Final Expiration Date fix a record date prior to the
Redemption Date or Final Expiration Date for the issuance of rights, options or
warrants to all holders of Preferred Shares entitling them (for a period
expiring within 45 calendar days after such record date) to subscribe for or
purchase Preferred Shares (or shares having the same rights, privileges and
preferences as the Preferred Shares ("equivalent preferred shares")) or
securities convertible into Preferred Shares or equivalent preferred shares, at
a price per Preferred Share or per share of equivalent preferred share (or
having an effective price per share on a converted basis in the case of a
security convertible into Preferred Shares or equivalent preferred shares) less
than the current per share market price of the Preferred Shares (as determined
in accordance
12
with Section 11(d)) on such record date, then 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 Preferred Shares outstanding on such record date
plus the number of Preferred Shares which the aggregate offering price of the
total number of Preferred Shares and/or equivalent preferred shares so to be
offered (and/or the aggregate price of the convertible securities so to be
offered) would purchase at such current market price, and the denominator of
which shall be the number of Preferred Shares outstanding on such record date
plus the number of additional Preferred Shares 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). In case such
subscription price may be paid by delivery of consideration part or all of which
may be in a form other than cash, the value of such consideration shall be as
determined in good faith by the Board of Directors, whose determination shall be
set forth in a statement filed with the Rights Agent and shall be binding on the
Rights Agent and the holders of the Rights. 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 the event that the Company shall at any time after the Close of
Business on the Record Date and prior to the Close of Business on the earlier of
the Redemption Date or the Final Expiration Date fix a record date for the
making of a distribution to all holders of the Preferred Shares (including any
such distribution made in connection with a consolidation or merger in which the
Company is the continuing corporation) of evidences of indebtedness or assets
(other than a regular quarterly cash dividend or a dividend payable in Preferred
Shares) or subscription rights or warrants (excluding those referred to in
Section 11(b)), the Purchase Price to be in effect after such record date shall
be determined by multiplying the Purchase Price in effect immediately prior to
such record date by a fraction the numerator of which shall be the current per
share market price per one Preferred Share (as determined in accordance with
Section 11(d)) on such record date, less the fair market value of the portion of
the assets or evidences of indebtedness so to be distributed or of such
subscription rights or warrants applicable to one Preferred Share, and the
denominator of which shall be such current per share market price per one
Preferred Share. 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) For the purpose of any computation hereunder, other than
computations made pursuant to Section 11(a)(iii), the "current per share market
price" of the Common Shares on any date shall be deemed to be the average of the
daily closing prices per Common Share on each of the 20 consecutive Trading Days
(as such term is hereinafter defined) through and including the Trading Day
immediately preceding such date; provided, however, that in the event the
current per share market price of the Common Shares is determined during a
period following the announcement by the issuer of such Common Shares of (A) a
dividend or distribution on such Common Shares payable in such Common Shares or
securities convertible into such Common Shares or (B) any subdivision,
combination or reclassification of such Common Shares, and prior to the
expiration of 20 Trading Days after the ex-dividend date for such dividend,
distribution, subdivision, combination or reclassification, then, and in each
such case, the current market price shall be appropriately adjusted to take into
account such event. The closing price for each day shall be the last sale price,
regular way, or, in case no such sale takes place on such day, the average of
the closing bid and asked prices, regular way, in either case as reported in the
principal consolidated transaction reporting system with respect to securities
listed or
13
admitted to trading on the New York Stock Exchange, Inc., or, if the Common
Shares are not listed or admitted to trading on the New York Stock Exchange,
Inc., as reported in the principal consolidated transaction reporting system
with respect to securities listed on the principal exchange on which the Common
Shares are listed or admitted to trading or, if the Common Shares are not listed
or admitted to trading on any national securities exchange, the last sale price
reported by the National Market System of the National Association of Securities
Dealers, Inc. Automated Quotations ("NASDAQ") System or such other system then
in use, or, if no last sale price is reported by any such system, the average of
the representative closing bid and asked prices as quoted on the NASDAQ System
or such other system then in use, or, if on any such date the Common Shares are
not quoted by any such organization, the average of the closing bid and asked
prices as furnished by a professional market maker making a market in the Common
Shares selected by the Board of Directors. The term "Trading Day" shall mean a
day on which the principal national securities exchange on which the Common
Shares are listed or admitted to trading is open for the transaction of business
or if the Common Shares are not listed or admitted to trading on any national
securities exchange, a day on which the NASDAQ System or such other system is
open.
(ii) For the purpose of any computation hereunder, the "current per share
market price" of the Preferred Shares shall be determined in the same manner as
set forth above for Common Shares in clause (i) of this Section 11(d). If the
current per share market price of the Preferred Shares cannot be determined in
the manner provided above, "the current per share market price" of the Preferred
Shares shall be conclusively deemed to be the current per share market price of
the Common Shares (appropriately adjusted to reflect any stock split, stock
dividend, subdivision, combination, reclassification or similar transaction
occurring after the date hereof) multiplied by ten thousand.
If neither the Common Shares nor the Preferred Shares are publicly held or
so listed or traded, "current per share market price" shall mean the fair value
per share as determined in good faith by the Board of Directors based upon such
appraisals or valuation reports of such independent experts as the Board of
Directors shall in good faith determine appropriate. Any such determination of
"current per share market price" 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 percent 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 ten-thousandth of a
Common Share or other share or one-millionth of a Preferred Share as the case
may be.
14
(f) If, as a result of an adjustment made pursuant to Section 11(a) or
Section 13(a), the holder of any Right thereafter exercised shall become
entitled to receive any shares of capital stock other than Preferred Shares, the
number of such other shares so receivable upon exercise of any Right shall be
subject to adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to the Preferred Shares
contained in this Section 11 and the provisions of Sections 7, 9, 10, 13 and 14
with respect to the Preferred Shares 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 ten-thousandths of a
Preferred Share 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) below, 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
ten-thousandths of a Preferred Share (calculated to the nearest one
one-millionth of a Preferred Share) obtained by (i) multiplying (x) the number
of one ten-thousandths of a Preferred 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 instead of making any adjustment
in the number of Preferred Shares 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 ten-thousandths of a Preferred Share 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 millionth) obtained by dividing the
Purchase Price in effect immediately prior to such adjustment of the Purchase
Price by the Purchase Price in effect immediately after such 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 ten days
after the date of the public announcement. If Right Certificates have been
issued, upon each adjustment of the number of Rights pursuant to this Section
11(i), the Company shall, as promptly as practicable, cause to be distributed to
holders of record of Right Certificates on such record date Right Certificates
evidencing, subject to Section 14, the additional Rights to which
15
such holders shall be entitled as a result of such adjustment, or, at the option
of the Company, shall cause to be distributed to such holders of record in
substitution and replacement for the Right Certificates held by such holders
prior to the date of adjustment, and upon surrender thereof, if required by the
Company, new Right Certificates evidencing all the Rights to which such holders
shall be entitled after such adjustment. Right Certificates so to be distributed
shall be issued, executed and countersigned in the manner provided for herein
(and may bear, at the option of the Company, the adjusted Purchase Price) and
shall be registered in the names of the holders of record of Right Certificates
on the record date specified in the public announcement.
(j) Irrespective of any adjustment or change in the Purchase Price or the
number of one ten-thousandths of a Preferred Share issuable upon the exercise of
the Rights, as applicable, the Right Certificates theretofore and thereafter
issued may continue to express the Purchase Price per one ten-thousandth of a
Preferred Share and the number of shares 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 one ten-thousandth of the then par value, if any, of the
Preferred Shares issuable upon exercise of the Rights, the Company shall take
any corporate action which may, in the advice or opinion of its counsel, be
necessary in order that the Company may validly and legally issue fully paid and
nonassessable one ten-thousandths of a Preferred Share at such adjusted Purchase
Price.
(l) In any case in which this Section 11 shall require that an adjustment
in the Purchase Price be made effective as of a record date for a specified
event, the Company may elect to defer, until the occurrence of such event, the
issuance to the holder of any Right exercised after such record date the number
of one ten-thousandths of a Preferred Share and other capital stock or
securities of the Company, if any, issuable upon such exercise over and above
the number of one ten-thousandths of a Preferred Share 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 further adjustments in the number of one
ten-thousandths of a Preferred Share which may be acquired upon exercise of the
Rights, and such adjustments in the Purchase Price, in addition to those
adjustments expressly required by this Section 11, as and to the extent that the
Board of Directors in good faith shall determine to be advisable in order that
any (i) consolidation or subdivision of the Preferred Shares, (ii) issuance
wholly for cash of any Preferred Shares at less than the current market price,
(iii) issuance wholly for cash of Preferred Shares or securities which by their
terms are convertible into or exchangeable for Preferred Shares, (iv) dividends
on Preferred Shares payable in Preferred Shares or (v) issuance of rights,
options or warrants referred to in Section 11(b), hereafter made by the Company
to holders of its Preferred Shares shall not be taxable to such holders or shall
reduce the taxes payable by such holders.
16
(n) The Company shall not, at any time after the Distribution Date (i)
consolidate with, or merge with or into, any other Person (other than a
Subsidiary of the Company in a transaction which complies with Section 11(o)),
(ii) consummate a statutory plan of exchange with any other Person (other than a
Subsidiary of the Company in a transaction which complies with Section 11(o), or
(iii) sell or transfer (or permit any Subsidiary to sell or transfer), in one
transaction, or a series of transactions, assets or earning power aggregating
more than 50 percent of the assets or earning power of the Company and its
Subsidiaries (taken as a whole) to any other Person or Persons (other than the
Company and/or any of its Subsidiaries in one or more transactions each of which
complies with Section 11(o)), if at the time of or immediately after such
consolidation, merger, consummation of a statutory plan of exchange or sale
there are any rights, warrants or other instruments or securities outstanding or
agreements in effect which would substantially diminish or otherwise eliminate
the benefits intended to be afforded by the Rights; provided, however, this
Section 11(n) shall not affect the ability of any Subsidiary of the Company to
consolidate with, merge with or into, consummate a statutory plan of exchange
with, or sell or transfer assets or earning power to, any other Subsidiary of
the Company.
(o) After the Distribution Date, the Company shall not, except as permitted
by Sections 23, 24 and 27, 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 otherwise eliminate the benefits intended to be
afforded by the Rights, including, without limiting the generality of the
foregoing, any merger, consolidation, statutory exchange or sale or transfer of
assets or earning power.
(p) Anything in this Agreement to the contrary notwithstanding, in the
event that the Company shall at any time after the date of this Agreement and
prior to the Distribution Date (i) declare or pay a dividend on the outstanding
Common Shares payable in Common Shares, (ii) subdivide the outstanding Common
Shares, (iii) combine the outstanding Common Shares into a smaller number of
shares, or (iv) issue any shares of its capital stock in a reclassification of
the outstanding Common Shares, the number of Rights associated with each Common
Share then outstanding, or issued or delivered thereafter but prior to the
Distribution Date, shall be proportionately adjusted so that the number of
Rights thereafter associated with each Common Share following any such event
(including other Common Shares issued after the date of such event, but prior to
the Distribution Date) shall equal the result obtained by multiplying the number
of Rights associated with each Common Share immediately prior to such event by a
fraction the numerator of which shall be the total number of Common Shares
outstanding immediately prior to the occurrence of the event and the denominator
of which shall be the total number of Common Shares outstanding immediately
following the occurrence of such event.
Section 12. Certificate of Adjusted Purchase Price or Number of Shares.
Whenever an adjustment is made as provided in Sections 11 and 13, the Company
shall (a) promptly prepare a certificate setting forth such adjustment, and a
brief statement of the facts giving rise to such adjustment, (b) promptly file
with the Rights Agent and with each transfer agent for the Preferred Shares and
17
the Common Shares a copy of such certificate and (c) mail a brief summary
thereof to each holder of a Right Certificate (or, if prior to the Distribution
Date, to each holder of a certificate representing Common Shares, provided that
no such summary need be mailed to such holders with respect to adjustments made
pursuant to Section 11(p) prior to the Distribution Date) in accordance with
Section 25. Notwithstanding the foregoing sentence, the failure of the Company
to make such certification or give such notice shall not affect the validity of
or the force or effect of the requirement for such adjustment. Any adjustment to
be made pursuant to Sections 11 and 13 shall be effective as of the date of the
event giving rise to such adjustment. The Rights Agent shall be fully protected
in relying on any such certificate and on any adjustment therein contained.
Section 13. Consolidation, Merger, Statutory Plan of Exchange or Sale or
Transfer of Assets or Earning Power.
(a) In the event that, directly or indirectly, after there is an Acquiring
Person, (i) the Company shall consolidate with, or merge with and into, any
other Person (other than a Subsidiary of the Company in a transaction that
complies with Section 11(o)), and the Company shall not be the continuing or
surviving corporation of such consolidation or merger, (ii) any Person (other
than a Subsidiary of the Company in a transaction which complies with Section
11(o)) shall consolidate with the Company, or merge with and into the Company
and the Company shall be the continuing or surviving corporation of such merger
and, in connection with such consolidation or merger, all or part of the Common
Shares shall be changed into or exchanged for stock or other securities of any
other Person or cash or any other property, or (iii) any Person (other than a
Subsidiary of the Company in a transaction which complies with Section 11(o))
shall acquire all or a majority of the Common Shares of the Company pursuant to
a statutory plan of exchange, or (iv) the Company
18
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 more than 50 percent of the assets or earning power of the Company
and its Subsidiaries (taken as a whole) to any other Person or Persons (other
than the Company or one or more of its wholly owned Subsidiaries) (any event
described in clauses (i), (ii), (iii) or (iv) of this Section 13(a) being a
"Section 13 event"), then, and in each such case, proper provision shall be made
so that (A) each holder of a Right, except as provided in Section 7(f), shall
thereafter have the right to receive, upon the exercise thereof at the
then-current Purchase Price in accordance with the terms of this Agreement, such
number of validly authorized and issued, fully paid and nonassessable Common
Shares of the Principal Party (as hereinafter defined) which Common Shares shall
not be subject to any liens, encumbrances, rights of first refusal, transfer
restrictions 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
ten-thousandths of a Preferred Share for which a Right was exercisable
immediately prior to the first occurrence of a Section 13 event (or, if a
Section 11(a)(ii) event has occurred prior to the Section 13 event, multiplying
the number of such one ten-thousandths of a share for which a Right was
exercisable immediately prior to the first occurrence of such Section 11(a)(ii)
event by the Purchase Price in effect immediately prior to such first
occurrence), and dividing that product by (2) 50 percent of the current per
share market price (determined in accordance with Section 11(d)(i)) of the
Common Shares of such Principal Party on the date of consummation of such
Section 13 event; (B) such Principal Party shall thereafter be liable for, and
shall assume, by virtue of such consolidation, merger, statutory plan of
exchange, 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, it being specifically intended that the
provisions of Section 11 shall apply only to such Principal Party after the
first occurrence of a Section 13 event; (D) such Principal Party shall take such
steps (including, but not limited to, the reservation of a sufficient number of
shares of its Common Shares in accordance with Section 9 applicable to the
reservation of capital shares) in connection with such consummation as may be
necessary to assure that the provisions hereof shall thereafter be applicable,
as nearly as reasonably may be, in relation to its Common Shares thereafter
deliverable upon the exercise of the Rights; and (E) the provisions of Section
11(a)(ii) shall be of no further effect following the first occurrence of any
Section 13 event.
(b) "Principal Party" shall mean:
(i) in the case of any transaction described in clause (i), (ii) or (iii)
of Section 13(a), (A) the Person that is the issuer of any securities into which
Common Shares of the Company are converted in such merger, consolidation or for
which they are exchanged in such statutory plan of exchange, or, if there is
more than one such issuer, the issuer of Common Shares that has the highest
aggregate current market price (determined in accordance with Section 11(d)) and
(B) if no securities are so issued, the Person that is the other party to such
merger, consolidation or statutory plan of exchange, or, if there is more than
one such Person, the Person the Common Shares of which has the highest aggregate
current market price (determined in accordance with Section 11(d)); and
(ii) in the case of any transaction described in clause (iv) of Section
13(a), the Person that is the party receiving the largest 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 transferred pursuant to such
transaction or transactions or if the Person receiving the largest portion of
the assets or earning power cannot be determined, whichever Person the Common
Shares of which has the highest aggregate current market price (determined in
accordance with Section 11(d)); provided, however, that in any such case, (A) if
the Common Shares of such Person are not at such time and have not been
continuously over the preceding twelve-month period registered under Section 12
of the Exchange Act ("Registered Common Shares"), or such Person is not a
corporation, and such Person is a direct or indirect Subsidiary of another
Person that has registered Common Shares outstanding, "Principal Party" shall
refer to such other Person; (B) if the Common Shares of such Person are not
Registered Common Shares or such Person is not a corporation, and such Person is
a direct or indirect Subsidiary of another Person but is not a direct or
indirect Subsidiary of another Person which has Registered Common Shares
outstanding, "Principal Party" shall refer to the ultimate parent entity of such
first-mentioned Person; (C) if the Common Shares of such Person are not
Registered Common Shares or such Person is not a corporation, and such Person is
directly or indirectly controlled by more than one Person, and one or more of
such other Persons has Registered Common Shares outstanding, "Principal Party"
shall refer to whichever of such other Persons is the issuer of the Registered
Common Shares having the highest aggregate current market price (determined in
accordance with Section 11(d)); and (D)if the Common Shares
19
of such Person are not Registered Common Shares or such Person is not a
corporation, and such Person is directly or indirectly controlled by more than
one Person, and none of such other Persons have Registered Common Shares
outstanding, "Principal Party" shall refer to whichever ultimate parent entity
is the corporation having the greatest shareholders' equity or, if no such
ultimate parent entity is a corporation, shall refer to whichever ultimate
parent entity is the entity having the greatest net assets.
(c) The Company shall not consummate any such consolidation, merger,
statutory plan of exchange, sale or transfer unless prior thereto the Company
and Principal Party shall have executed and delivered to the Rights Agent a
supplemental agreement confirming that (i) such Principal Party shall, upon
consummation of such consolidation, merger, statutory plan of exchange or sale
or transfer of assets or earning power, assume this Agreement in accordance with
Sections 13(a) and (b), (ii) all rights of first refusal or preemptive rights in
respect of the issuance of Common Shares of such Principal Party upon exercise
of outstanding Rights have been waived, (iii) any provision of the authorized
securities of such Principal Party or of its charter, bylaws or other
instruments governing its corporate affairs which would obligate such Principal
Party to issue in connection with, or as a consequence of, the consummation of a
transaction referred to in Section 13(a), Common Shares of such Principal Party
at less than the then-current per share market price (determined in accordance
with Section 11(d)(i)) or securities exercisable for, or convertible into, such
Common Shares at less than such then-current per share market price (other than
to the holders of Rights pursuant to this Section 13) have been waived or
canceled, and (iv) such transaction shall not result in a default by such
Principal Party under this Agreement and further providing that, as soon as
practicable after the date of any consolidation, merger, statutory plan of
exchange or sale or transfer of assets or earning power referred to in Section
13(a), such Principal Party will:
(A) prepare and file a registration statement under the Securities Act
of 1933, as amended, 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 of 1933, as amended)
until the Final Expiration Date of the Rights, and similarly comply with
applicable state securities laws;
(B) use its best efforts to list (or continue the listing of) the
Rights and the securities purchasable upon exercise of the Rights or to
meet the eligibility requirements for quotation of the Rights and such
securities on NASDAQ or other system then in use; and
(C) deliver to holders of the Rights historical financial statements
for such Principal Party which comply in all respects with the requirements
for registration on Form 10 (or any successor form) under the Exchange Act.
In the event that at any time after the occurrence of a Section 11(a)(ii)
event hereof some or all of the Rights shall not have been exercised at the time
of a Section 13 event, the Rights which have not theretofore been exercised
shall thereafter be exercisable in the manner described in Section 13(a)
(without taking into account any prior adjustment required by Section
11(a)(ii)).
20
(d) The provisions of this Section 13 shall similarly apply to successive
mergers or consolidations or sales or other transfers.
(e) Notwithstanding anything in this Agreement to the contrary, this
Section 13 shall not be applicable to a transaction described in Section
13(a)(i), (ii) or (iii) if: (i) such transaction is consummated with a Person or
Persons who acquired shares of Common Stock pursuant to a Sanctioned Tender
Offer (or with a wholly owned Subsidiary of any such Person or Persons), (ii)
the price per Common Share offered in such transaction is not less than the
price per Common Share paid to all holders of Common Shares whose shares were
purchased pursuant to such Sanctioned Tender Offer, and (iii) the form of
consideration being offered to the remaining holders of Common Shares pursuant
to such transaction is the same as the form of consideration paid pursuant to
such Sanctioned Tender Offer. Upon consummation of any such transaction
contemplated by this Section 13(e), all Rights shall expire.
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 (i.e., Rights to
acquire less than one ten-thousandth of a Preferred Share). If the Company shall
determine not to issue 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 determined in the same manner as set forth in Section
11(d)(i) with respect to the closing price for Common Shares.
(b) The Company shall not be required to issue fractions of Preferred
Shares (other than fractions which are integral multiples of one ten-thousandth
of a Preferred Share) upon exercise of the Rights, or to distribute certificates
which evidence fractional Preferred Shares (other than fractions which are
integral multiples of one ten-thousandth of a Preferred Share). Fractions of
Preferred Shares in integral multiples of one ten-thousandth of a Preferred
Share 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 Shares. With
respect to fractional Preferred Shares that are not integral multiples of one
ten-thousandth of a Preferred Share, if the Company does not issue fractional
shares or depositary receipts in lieu thereof, 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 ten-thousandth of a Preferred Share. For purposes of this
Section 14(b), the current market value of one ten-thousandth of a Preferred
Share shall be one ten-thousandth of the closing price of a Preferred Share (as
determined in accordance with Section 11(d)(ii)) for the Trading Day immediately
prior to the date of such exercise.
(c) Following the occurrence of a Section 11(a)(ii) event or a Section 13
event, the Company shall not be required to issue fractions of Common Shares
upon exercise of the Rights or to distribute certificates which evidence
fractional Common Shares. In lieu of fractional Common Shares, the Company may
pay to the registered holders of Right Certificates at the time such Rights are
exercised as herein provided an amount in cash equal to the same fraction of the
current market value of one Common Share. For purposes of this Section 14(c),
the current market value of one Common Share shall be the closing price of one
Common Share (as determined pursuant to Section 11(d)(i)) for the Trading Day
immediately prior to the date of such exercise.
(d) The holder of a Right, by the acceptance of the Rights, expressly
waives his right to receive any fractional Rights or any fractional shares upon
exercise of a Right except as permitted by this Section 14.
21
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, are vested in the respective registered holders of the Right
Certificates (and, prior to the Distribution Date, the registered holders of the
Common Shares); and any registered holder of any Right Certificate (or, prior to
the Distribution Date, of the Common Shares), without the consent of the Rights
Agent or of the holder of any other Right Certificate (or, prior to the
Distribution Date, of the Common Shares), may in his own behalf and for his own
benefit, enforce, and may institute and maintain any suit, action or proceeding
against the Company to enforce, or otherwise act in respect of, his right to
exercise the Rights evidenced by such Right Certificate in the manner provided
in such Right Certificate and in this 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 shall be evidenced by the
certificates for Common Shares of the Company registered in the name of the
holders of such Common Shares (which certificates for Common Shares shall also
constitute certificates for Rights) and each Right will be transferable only in
connection with the transfer of the Common Shares of the Company;
(b) after the Distribution Date, the Right Certificates are transferable
only on the registry books of the Rights Agent if surrendered at the principal
office of the Rights Agent, duly endorsed or accompanied by a proper instrument
of transfer and with the appropriate forms and certificates duly executed; and
(c) subject to Sections 6(a) and 7(f), the Company and the Rights Agent may
deem and treat the person in whose name the Right Certificate (or, prior to the
Distribution Date, the associated Common Shares certificate) is registered as
the absolute owner thereof and of the Rights evidenced thereby (notwithstanding
any notations of ownership or writing on the Right Certificates or the
associated Common Shares 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.
(d) Notwithstanding anything in this Agreement to the contrary, neither the
Company nor the Rights Agent shall have any liability to any holder of a Right
or other Person as a result of its inability to perform any of its obligations
under this Agreement by reason of any preliminary or permanent injunction or
other order, decree or ruling issued by a court of competent jurisdiction or by
a governmental, regulatory or administrative agency or commission, or any
statute, rule, regulation or executive order promulgated or enacted by any
governmental authority, prohibiting or otherwise restraining performance of such
obligation; provided, however, the Company must use reasonable efforts to have
any such order, decree or ruling lifted or otherwise overturned as soon as
possible.
22
Section 17. Right Holders and Right Certificate Holders Not Deemed
Shareholders. No holder, as such, of any Right or Right Certificate shall be
entitled to vote, receive dividends or be deemed for any purpose the holder of
the number of one ten-thousandths of a Preferred Share 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 or Right
Certificate, as such, any of the rights of a shareholder of the Company or any
right to vote for the election of directors or upon any matter submitted to
shareholders at any meeting thereof, or to give or withhold consent to any
corporate action, or to receive notice of meetings or other actions affecting
shareholders (except as provided in Section 25), or to receive dividends or
subscription rights, or otherwise, until the Right or Rights evidenced by such
Right Certificate shall have been exercised in accordance with the provisions
hereof.
Section 18. Concerning the Rights Agent.
(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.
(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 Shares or Common Shares or for other securities of
the Company, instrument of assignment or transfer, power of attorney,
endorsement, affidavit, letter, notice, direction, consent, certificate,
statement, or other paper or document believed by it to be genuine and to be
signed, executed and, where necessary, verified or acknowledged, by the proper
person or persons.
Section 19. Merger or Consolidation or Change of Name of Rights Agent.
(a) Any corporation (which term shall for the purposes of this Agreement
include a national banking association) 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 corporate trust or stock transfer business of the Rights Agent
or any successor Rights Agent, shall be the successor to the Rights Agent under
this Agreement without the execution or filing of any paper or any further act
on the part of any of the parties hereto, provided that such corporation would
be eligible for appointment as a successor Rights Agent under the provisions of
Section 21. If, 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 if at that time any of the Right Certificates
shall not have been countersigned, any successor Rights Agent may countersign
such Right Certificates either in the name of the predecessor Rights Agent or in
the name of the successor Rights Agent; and in all such cases such Right
Certificates shall have the full force provided in the Right Certificates and in
this Agreement.
23
(b) If 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 if 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 the duties
and obligations imposed by this Agreement upon the following terms and
conditions, by all of which the Company and the holders of Right Certificates,
by their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel (who may be legal
counsel for the Company), and the advice or opinion of such counsel shall be
full and complete authorization and protection to the Rights Agent as to any
action taken or omitted by it in good faith and in accordance with such advice
or opinion.
(b) Whenever in the performance of its duties under this Agreement the
Rights Agent shall deem it necessary or desirable that any fact or matter be
proved or established by the Company prior to taking or suffering any action
hereunder, such fact or matter (including, without limitation, the identity of
any Acquiring Person and the determination of "current per share market price")
may be deemed to be conclusively proved and established by a certificate signed
by any one of the Chairman of the Board, the President, any Vice President, the
Treasurer, the Secretary or any Assistant 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 willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of the
statements of fact or recitals contained in this Agreement or in the Right
Certificates (except its countersignature thereof) or be required to verify the
same, but all such statements and recitals are and shall be deemed to have been
made by the Company only.
24
(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 authorization, execution and delivery hereof by the Rights Agent) or in
respect of the validity or execution of any Right Certificate (except its
countersignature thereof); nor shall it be responsible for any breach by the
Company of any covenant or condition contained in this Agreement or in any Right
Certificate; nor shall it be responsible for any change in the exercisability of
the Rights (including the Rights becoming null and void pursuant to Section
7(f)) or any adjustment required under the provisions of Sections 11 or 13
(including the manner, method or amount thereof) 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
by the Rights Agent of the certificate describing any such adjustment as
contemplated by Section 12); nor shall it by any act hereunder be deemed to make
any representation or warranty as to the authorization or reservation of any
Preferred Shares to be issued pursuant to this Agreement or any Right
Certificate or as to whether any Preferred Shares will, when issued, be validly
authorized and issued, fully paid and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged and delivered all such
further and other acts, instruments and assurances as may reasonably be required
by the Rights Agent for the carrying out or performing by the Rights Agent of
the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from any
one of the Chairman of the Board, the President, any Vice President, the
Secretary, any Assistant Secretary or the Treasurer of the Company, and to apply
to such officers for advice or instructions in connection with its duties, and
it shall not be liable for any action taken or suffered to be taken by it in
good faith in accordance with instructions of any such officer.
(h) The Rights Agent and any shareholder, director, officer or employee of
the Rights Agent may buy, sell or deal in any of the Rights or other securities
of the Company or become pecuniarily interested in any transaction in which the
Company may be interested, or contract with or lend money to the Company or
otherwise act as fully and freely as though it were not the Rights Agent under
this 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 that reasonable care was exercised in the
selection and continued employment thereof.
(j) No provision of this Agreement shall require the Rights Agent to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties or in the exercise of its rights hereunder if
the Rights Agent shall have reasonable grounds for believing that repayment of
such funds or adequate indemnification against such risk or liability is not
reasonably assured to it.
25
(k) If, with respect to any Right Certificate surrendered to the Rights
Agent for exercise or transfer, the certificate included with the form of
assignment or form of election to purchase, as the case may be, has either not
been completed, not signed or indicates an affirmative response to clause 1
and/or 2 thereof, the Rights Agent shall not take any further action with
respect to such requested exercise or transfer without first consulting with the
Company. If such certificate has been completed and signed, the Rights Agent may
assume without further inquiry that the Right Certificate is not owned by a
person described in Section 7(f) and shall not be charged with any knowledge to
the contrary.
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 Shares and Preferred Shares by registered or certified mail, and
to the holders of the Right Certificates by first-class mail. The Company may
remove the Rights Agent or any successor Rights Agent upon 30 days' notice in
writing, mailed to the Rights Agent or successor Rights Agent, as the case may
be, and to each transfer agent of the Common Shares and Preferred Shares by
registered or certified mail, and to the holders of the Right Certificates by
first-class mail. If the Rights Agent shall resign or be removed or shall
otherwise become incapable of acting, the Company shall appoint a successor to
the Rights Agent. If the Company shall fail to make such appointment within a
period of 30 days after giving notice of such removal or after it has been
notified in writing of such resignation or incapacity by the resigning or
incapacitated Rights Agent or by the holder of a Right Certificate (who shall,
with such notice, submit his Right Certificate for inspection by the Company),
then the Company shall become the Rights Agent and the registered holder of any
Right Certificate may apply to any court of competent jurisdiction for the
appointment of a new Rights Agent. Any successor Rights Agent, whether appointed
by the Company or by such a court, shall be a corporation organized and doing
business under the laws of the United States or of the state of New York (or of
any other state of the United States so long as such corporation is authorized
to do business as a banking institution in the state of New York) in good
standing, having a principal office in the state of New York, which is
authorized under such laws to exercise corporate trust or stock transfer powers
and is subject to supervision or examination by federal or state authority and
which has at the time of its appointment as Rights Agent a combined capital and
surplus of at least $50 million. After appointment, the successor Rights Agent
shall be vested with the same powers, rights, duties and responsibilities as if
it had been originally named as Rights Agent without further act or deed; but
the predecessor Rights Agent shall deliver and transfer to the successor Rights
Agent any property at the time held by it hereunder, and execute and deliver any
further assurance, conveyance, act or deed necessary for the purpose. Not later
than the effective date of any such appointment, the Company shall file notice
thereof in writing with the predecessor Rights Agent and each transfer agent of
the Common Shares and Preferred Shares, and mail a notice thereof in writing to
the 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.
26
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 the Board of Directors to reflect any adjustment or change in
the Purchase Price per share 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 Shares of the Company following the
Distribution Date and prior to the expiration, termination or redemption of the
Rights, the Company (a) shall, with respect to Common Shares of the Company so
issued or sold pursuant to the exercise of stock options or under any Plan, or
upon the exercise, conversion or exchange of securities hereinafter issued by
the Company, and (b) may, in any other case, if deemed necessary or appropriate
by the Board of Directors, issue Right Certificates representing the appropriate
number of Rights in connection with such issuance or sale; provided, however,
that (i) no such Right Certificate shall be issued if, and to the extent that,
the Company shall be advised by counsel that such issuance would create a
significant risk of material adverse tax consequences to the Company or the
Person to whom such Right Certificate would be issued, and (ii) no such Right
Certificate shall be issued if, and to the extent that, appropriate adjustment
shall otherwise have been made in lieu of the issuance thereof.
Section 23. Redemption and Termination.
(a) The Company may, at its option, by action of the Board of Directors at
any time prior to the Close of Business on the earlier of (i) the 10th day
(subject to extension by the Board of Directors as provided below) following the
Shares Acquisition Date or (ii) the Final Expiration Date, redeem all, but not
less than all, the then outstanding Rights at a redemption price of $.001 per
Right as such amount may be appropriately adjusted to reflect any stock split,
stock dividend or similar transaction occurring after the date hereof (such
redemption price being hereinafter referred to as the "Redemption Price"). The
ten-day period referred to in the preceding sentence may be extended by the
Board of Directors.
(b) In the event that if, following the occurrence of a Shares Acquisition
Date and following the expiration of the right of redemption under Section
23(a), but prior to any Section 13 event, (i) a Person who is an Acquiring
Person or an Affiliate or Associate of such Person shall have transferred or
otherwise disposed of a number of Common Shares in one transaction, or a series
of transactions (not directly or indirectly involving a purchase by the Company
or any of its Subsidiaries), which did not result in the occurrence of a Section
11(a)(ii) event or a Section 13 event, such that such Person is thereafter a
Beneficial Owner of 10 percent or less of the outstanding Common Shares of the
Company, (ii) there are no other Persons, immediately following the transfer or
other disposition described in clause (i), who are Acquiring Persons, and (iii)
the transfer or other disposition described in clause (i) was other than
pursuant to a transaction, or series of transactions, which directly or
indirectly involved the Company or any of its Subsidiaries; then the right of
redemption provided in Section 23(a) shall be reinstated and thereafter all
outstanding Rights shall again be subject to the provisions of this Section 23.
Notwithstanding anything in this Agreement to the contrary, the Rights shall not
be exercisable while the Rights are subject to any right of redemption by the
Company under this Agreement.
27
(c) Immediately upon the action of the Board of Directors ordering the
redemption of the Rights, or at such time and date thereafter as the Board of
Directors may specify, 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. Promptly after
the action of the Board of Directors ordering the redemption of the Rights, the
Company shall give notice of such redemption to the holders of the then
outstanding Rights by mailing such notice to all such holders at their last
addresses as they appear upon the registry books of the Rights Agent or, prior
to the Distribution Date, on the registry books of the transfer agent for the
Common Shares. Any notice which is mailed in the manner herein provided shall be
deemed given, whether or not the holder receives the notice. Each such notice of
redemption will state the method by which the payment of the Redemption Price
will be made. Neither the Company nor any of its Affiliates or Associates may
redeem, acquire or purchase for value any Rights in any manner other than that
specifically set forth in this Section 23 or in Section 24, and other than in
connection with the purchase of Common Shares prior to the Distribution Date.
Section 24. Exchange.
(a) The Company may, at its option but subject to receipt of any required
regulatory approvals, by action of the Board of Directors, at any time after any
Person becomes an Acquiring Person, exchange all or part of the then outstanding
and exercisable Rights (which shall not include Rights that have become void
pursuant to the provisions of Section 7(f)) for Common Shares at an exchange
ratio of one Common Share per Right, appropriately adjusted to reflect any stock
split, stock dividend or similar transaction occurring after the date hereof
(such exchange ratio being herein referred to as the "Exchange Ratio").
Notwithstanding the foregoing, the Board of Directors shall not be empowered to
effect such exchange at any time after any Person (other than the Company, any
Subsidiary of the Company any Plan of the Company or of a Subsidiary of the
Company or any Person holding Common Shares for or pursuant to the terms of any
such Plan), together with all Affiliates and Associates of such Person, becomes
the Beneficial Owner of 50 percent or more of the Common Shares then
outstanding.
(b) Immediately upon the action of the Board of Directors of the Company
ordering the exchange of any Rights pursuant to Section 24(a) 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 Common Shares 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 promptly shall mail a notice of any such exchange to all of the
holders of such Rights at their last addresses as they appear upon the registry
books of the Rights Agent. Any notice which is mailed in the manner herein
provided shall be deemed given, whether or not the holder receives the notice.
Each such notice of exchange will state the method by which the exchange of the
Common Shares for Rights will be effected and, in the event of any partial
exchange, the number of Rights which will be exchanged. Any partial exchange
shall be effected pro rata based on the number of Rights (other than Rights
which have become void pursuant to the provisions of Section 7(f)) held by each
holder of Rights.
28
(c) In any exchange pursuant to this Section 24, the Company, at its
option, may substitute Preferred Shares (or equivalent preferred shares, as such
term is defined in Section 11(b)) for Common Shares exchangeable for Rights, at
the initial rate of one ten-thousandth of a Preferred Share (or equivalent
preferred share) for each Common Share, as appropriately adjusted to reflect
adjustments in the voting rights of the Preferred Shares pursuant to the terms
thereof, so that the fraction of a Preferred Share delivered in lieu of each
Common Share shall have at least the same voting rights as one Common Share.
(d) The Company shall not be required to issue fractions of Common Shares
or to distribute certificates which evidence fractional Common Shares. In lieu
of such fractional shares, the Company shall pay to the registered holders of
the Right Certificates with regard to which such fractional shares would
otherwise be issuable an amount in cash equal to the same fraction of the
current market value of a whole Common Share. For the purposes of this Section
24(d), the current market value of a whole share shall be the closing price of a
Common Share determined in the manner set forth in Section 11(d)(i) with respect
to the closing price for Common Shares for the Trading Day immediately prior to
the Exchange Date.
Section 25. Notice of Certain Events.
(a) In case the Company shall propose, at any time after the Distribution
Date, (i) to declare or pay any dividend payable in stock of any class to the
holders of its Preferred Shares or to make any other distribution to the holders
of its Preferred Shares (other than a regular quarterly cash dividend), or (ii)
to offer to the holders of its Preferred Shares options, rights or warrants to
subscribe for or to purchase any additional Preferred Shares or shares of stock
of any class or any other securities, rights or options, or (iii) to effect any
reclassification of its Preferred Shares (other than a reclassification
involving only the subdivision of outstanding Preferred Shares), or (iv) to
effect any consolidation or merger into or with, to effect any exchange of the
Common Shares of the Company pursuant to a statutory plan of exchange with, or
to effect any sale or other transfer (or to permit one or more of its
Subsidiaries to effect any sale or other transfer), in one or more transactions,
of more than 50 percent of the assets or earning power of the Company and its
Subsidiaries (taken as a whole) to, any other Person or Persons (other than the
Company and/or any of its Subsidiaries in a transaction which complies with
Section 11(o)), or (v) to effect the liquidation, dissolution or winding up of
the Company, then, in each such case, the Company shall give to each holder of a
Right Certificate, in accordance with Section 26, a notice of such proposed
action, which shall specify the record date for the purposes of such stock
dividend, or distribution of rights or warrants, or the date on which such
reclassification, consolidation, merger, statutory plan of exchange, sale,
transfer, liquidation, dissolution or winding up is to take place and the date
of participation therein by the holders of record of the Preferred Shares, if
any such date is to be fixed, and such notice shall be so given in the case of
any action covered by clause (i) or (ii) above at least 20 days prior to the
record date for determining holders of the Preferred Shares for purposes of such
action, and in the case of any such other action, at least 20 days prior to the
date of the taking of such proposed action or the date of participation therein
by the holders of the Preferred Shares, whichever shall be the earlier. The
failure to give notice required by this Section 25 or any defect therein shall
not affect the legality or validity of the action taken by the Company or the
vote upon any such action.
29
(b) In case any Section 11(a)(ii) event shall occur, then (i) the Company
shall as soon as practicable thereafter give to each holder of a Right
Certificate, in accordance with Section 26, a notice of the occurrence of such
event, which shall specify the event and the consequences of the event to
holders of Rights under Sections 11(a)(ii), and (ii) all references in Section
25(a) to Preferred Shares shall be deemed thereafter to refer to Common Shares
and/or, if appropriate, other securities.
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:
National R.V. Holdings, Inc.
0000 X. Xxxxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Corporate Secretary
Subject to the provisions of Section 21, 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) to the principal office of the Rights Agent
as follows:
Continental Stock Transfer & Trust Company
0 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Compliance Department
Notices or demands authorized by this Agreement to be given or made by the
Company or the Rights Agent to or on the holder of any Right Certificate (or, if
prior to the Distribution Date, to or on the holder of certificates representing
Common Shares of the Company) 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.
(a) Prior to the Distribution Date, the Company may by action of the Board
of Directors, and the Rights Agent shall if the Company so directs, supplement
or amend any provision of this Agreement in any manner without the approval of
any holders of Common Shares. From and after the Distribution Date, the Company
may by action of the Board of Directors, and the Rights Agent shall if directed
by the Company, from time to time, supplement or amend this Agreement without
30
the approval of any holders of Right Certificates in order (i) to cure any
ambiguity, (ii) to correct or supplement any provision contained herein which
may be defective or inconsistent with any other provisions herein, (iii) to
shorten or lengthen any time period herein or (iv) to change or supplement any
other provisions, hereunder in any manner which the Board of Directors may deem
necessary or desirable so long as the interests of the holders of the Rights or
Right Certificates (other than an Acquiring Person or any Affiliate or Associate
of an Acquiring Person) shall not be materially and adversely affected thereby;
provided, however, this Agreement may not be supplemented or amended to
lengthen, pursuant to clause (iii) of this sentence, (A) a time period governing
redemption of the Rights if the Rights are not then redeemable, or (B) any other
time period unless such lengthening is for the purpose of protecting, enhancing
or clarifying the rights of, and/or the benefits to, the holders of Rights
(other than an Acquiring Person or any Affiliate or Associate of an Acquiring
Person). 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(a), the Rights Agent shall execute such
supplement or amendment; provided, however, that the Rights Agent may, but shall
not be obligated to, enter into any such supplement or amendment which affects
its own rights, duties or immunities under this Agreement. Prior to the
Distribution Date, the interests of the holders of Rights shall be deemed
coincident with the interests of the holders of the Common Shares of the
Company.
(b) After the Distribution Date and prior to the earlier of the Redemption
Date or the Final Expiration Date, the Company shall not effect any amendment to
the provisions of the Company's Certificate of Incorporation respecting the
Preferred Shares which would materially and adversely affect the preferences,
limitations and relative rights of the Preferred Shares, without the prior
approval of the holders of two-thirds or more of the then outstanding Rights.
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 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 Shares of the Company) 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 Shares
of the Company).
Section 30. Severability. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction or other
authority to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Agreement shall remain in full
force and effect and shall in no way be affected, impaired or invalidated;
provided, however, that notwithstanding anything in this Agreement to the
contrary, if any such term, provision, covenant or restriction is held by such
court or authority to be invalid, void or unenforceable and the Board of
Directors determines in its good faith judgment that severing the invalid
language from this Agreement would adversely affect the purpose or effect of
this Agreement, the right of redemption set forth in Section 23 shall be
reinstated and shall not expire until the Close of Business on the tenth day
following the date of such determination by the Board of Directors.
31
Section 31. Determinations and Actions by the Board of Directors etc. For
all purposes of this Agreement, any calculation of the number of Common Shares
of the Company outstanding at any particular time, including for purposes of
determining the particular percentage of such outstanding shares of which any
Person is the Beneficial Owner, shall be made in accordance with the last
sentence of Rule 13d-3(d)(1)(i) under the Exchange Act as in effect on the date
hereof. Except as otherwise specifically provided herein, the Board of Directors
shall have the exclusive power and authority to administer this Agreement and to
exercise all rights and powers specifically granted to the Board of Directors or
to the Company, or as may be necessary or advisable in the administration of
this Agreement, including, without limitation, the right and power (a) to
interpret the provisions of this Agreement and (b) to make all determinations
deemed necessary or advisable for the administration of this Agreement. Any such
actions, calculations, interpretations and determinations (including, for
purposes of clause (ii) below, all omissions with respect to the foregoing)
which are done or made by the Board of Directors in good faith shall (i) be
final, conclusive and binding on the Company, the Rights Agent, the holders of
the Rights and all other parties, and (ii) not subject the Board of Directors or
any member thereof to any liability to the holders of the Rights.
Section 32. Governing Law. This Agreement and each Right Certificate issued
hereunder shall be deemed to be a contract made under the laws of the State of
Delaware and for all purposes shall be governed by and construed in accordance
with the laws of such state applicable to contracts to be made and performed
entirely within such state.
Section 33. Counterparts. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
Section 34. Descriptive Headings. Descriptive headings of the several
sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
32
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
NATIONAL R.V. HOLDINGS, INC.
By: /s/ XXXXXX X. XXXXXXX
Name:Xxxxxx X. Xxxxxxx
Title: Chief Financial Officer
CONTINENTAL STOCK TRANSFER
& TRUST COMPANY
By:/s/XXXXXXX X. XXXXXXXXX
Name: Xxxxxxx X. Xxxxxxxxx
Title:Vice President
EXHIBIT A
CERTIFICATE OF DESIGNATION
OF
SERIES B JUNIOR PARTICIPATING PREFERRED STOCK
OF
NATIONAL R.V. HOLDINGS, INC.
(Pursuant to Section 151 of the
Delaware General Corporation Law)
National R.V. Holdings, Inc., a corporation organized and existing under
the General Corporation Law of the State of Delaware (the "corporation"), hereby
certifies that the following resolution was adopted by the Board of Directors of
the corporation in accordance with Section 151 of the General Corporation Law at
a meeting duly called and held on August 20, 1996.
RESOLVED that pursuant to the authority vested in the Board of Directors of
the corporation in accordance with the provisions of its Certificate of
Incorporation (the "Certificate of Incorporation"), a series of the Preferred
Stock, $.01 par value ("Preferred Stock"), of the corporation be, and it hereby
is, created, and that the designation and amount thereof and the preferences,
limitations and relative rights of the shares of such series are as follows:
Section 1. Designation and Amount. There shall be a series of Preferred
Stock of the corporation which shall be designated as "Series B Junior
Participating Preferred Stock, $.01 par value" (the "Series B Preferred Stock"),
and the number of shares constituting such series shall be 1,000. Such number of
shares may be increased or decreased by Certificate of Amendment adopted by the
Board of Directors without shareholder action; provided, however, that no
decrease shall reduce the number of shares of Series B Preferred Stock to a
number less than the shares outstanding plus the number of shares issuable upon
exercise of outstanding rights, options or warrants or upon conversion of
outstanding securities issued by the corporation.
Section 2. Dividends and Distributions.
(a) Subject to the prior and superior rights of the holders of any shares
of any series of Preferred Stock ranking prior and superior to the Series B
Preferred Stock with respect to dividends, the holders of shares of Series B
33
Preferred Stock, in preference to the holders of shares of Common Stock, $.01
par value ("Common Stock") of the corporation and of any other junior stock
which may be outstanding, shall be entitled to receive, when, as and if declared
by the Board of Directors out of funds legally available for the purpose, (i)
quarterly dividends payable in cash on the last day of March, June, September
and December in each year (each such date being referred to herein as a
"Quarterly Dividend Payment Date"), commencing on the first Quarterly Dividend
Payment Date after the first issuance of a share or fraction of a share of
Series B Preferred Stock, in an amount per share (rounded to the nearest cent),
subject to the provision for adjustment hereinafter set forth, equal to 10,000
times the aggregate per share amount of all cash dividends declared on the
Common Stock since the immediately preceding Quarterly Dividend Payment Date or,
with respect to the first Quarterly Dividend Payment Date, since the first
issuance of any share or fraction of a share of Series B Preferred Stock, and
(ii) subject to the provision for adjustment hereinafter set forth, quarterly
distributions (payable in kind) on each Quarterly Dividend Payment Date in an
amount per share equal to 10,000 times the aggregate per share amount of all
noncash dividends or other distributions (other than a dividend payable in
shares of Common Stock or a subdivision of the outstanding shares of Common
Stock, by reclassification or otherwise) declared on the Common Stock since the
immediately preceding Quarterly Dividend Payment Date, or with respect to the
first Quarterly Dividend Payment Date since the first issuance of any share or
fraction of a share of Series B Preferred Stock. In the event the corporation
shall at any time after August 20, 1996 (the "Rights Declaration Date") declare
or pay any dividend on Common Stock payable in shares of Common Stock, or effect
a subdivision or combination or consolidation of the outstanding shares of
Common Stock (by reclassification or otherwise) into a greater or lesser number
of shares of Common Stock, then in each such case the amount to which holders of
shares of Series B Preferred Stock are entitled under clauses (i) or (ii) of the
preceding sentence shall be adjusted by multiplying such amount by a fraction
the numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
(b) The corporation shall declare a dividend or distribution on the Series
B Preferred Stock as provided in Section 2(A) immediately after it declares a
dividend or distribution on the Common Stock (other than a dividend payable in
shares of Common Stock).
(c) Dividends shall begin to accrue and be cumulative on outstanding shares
of Series B Preferred Stock from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares of Series B Preferred Stock, unless
the date of issue of such shares is prior to the record date for the first
34
Quarterly Dividend Payment Date, in which case dividends on such shares shall
begin to accrue and be cumulative from the date of issue of such shares, or
unless the date of issue is a Quarterly Dividend Payment Date or is a date after
the record date for the determination of holders of shares of Series B Preferred
Stock entitled to receive a quarterly dividend and before such Quarterly
Dividend Payment Date, in either of which events such dividends shall begin to
accrue and be cumulative from such Quarterly Dividend Payment Date. Accrued but
unpaid dividends shall cumulate but shall not bear interest. Dividends paid on
the shares of Series B 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 B Preferred Stock entitled to receive payment of
a dividend or distribution declared thereon, which record date shall be not more
than 60 days prior to the date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series B Preferred Stock
shall have the following voting rights:
(a) Subject to the provision for adjustment hereinafter set forth, each
share of Series B Preferred Stock shall entitle the holder thereof to 10,000
votes (and each one ten-thousandth of a share of Series B Preferred Stock shall
entitle the holder thereof to one vote) on all matters submitted to a vote of
the shareholders of the corporation. In the event the corporation shall at any
time after the Rights Declaration Date declare or pay any dividend on Common
Stock payable in shares of Common Stock, or effect a subdivision or combination
or consolidation of the outstanding shares of Common Stock (by reclassification
or otherwise) 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 B 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 in the Certificate of Incorporation or in
this amendment thereof or by law, the holders of shares of Series B Preferred
Stock and the holders of shares of Common Stock shall vote together as one class
on all matters submitted to a vote of the shareholders of the corporation.
(c) Except as otherwise provided in the Certificate of Incorporation or in
this amendment thereof or by law, holders of Series B Preferred Stock shall have
no special voting rights and their consent shall not be required for taking any
corporate action.
Section 4. Certain Restrictions.
(a) Whenever quarterly dividends or other dividends or distributions
payable on the Series B Preferred Stock as provided in Section 2 are in arrears,
thereafter and until all accrued and unpaid dividends and distributions, whether
or not declared, on shares of Series B Preferred Stock outstanding shall have
been paid in full, the corporation shall not:
(i) declare or pay dividends on, make any other distributions on any
shares of stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series B Preferred Stock;
(ii) declare or pay dividends on or make any other distributions on
any shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series B Preferred Stock,
except dividends paid ratably on the Series B 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;
35
(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) with the Series B Preferred Stock, provided that
the corporation may at any time redeem, purchase or otherwise acquire
shares of any such junior stock in exchange for shares of any stock of the
corporation ranking junior (either as to dividends or upon dissolution,
liquidation or winding up) to the Series B Preferred Stock; or
(iv) purchase or otherwise acquire for consideration any shares of
Series B Preferred Stock, or any share of stock ranking on a parity with
the Series B 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 corporation shall not permit any subsidiary of the corporation to
purchase or otherwise acquire for consideration any shares of stock of the
corporation unless the corporation could, under Section 4(A), purchase or
otherwise acquire such shares at such time and in such manner.
Section 5. Reacquired Shares. Any shares of Series B Preferred Stock
purchased or otherwise acquired by the corporation in any manner whatsoever
shall be retired and canceled promptly after the acquisition thereof. The
corporation shall take all such action as is necessary so that all such shares
shall after their cancellation become authorized but unissued shares of
Preferred Stock, without designation as to series, and may be reissued as part
of a new series of Preferred Stock to be created by Certificate of Amendment
adopted by the Board of Directors without shareholder action, subject to the
conditions and restrictions on issuance set forth herein.
Section 6. Liquidation, Dissolution or Winding Up. Upon any liquidation,
dissolution or winding up of the corporation, no distribution shall be made (A)
to the holders of shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series B Preferred Stock, unless,
prior thereto, the holders of shares of Series B Preferred Stock shall have
received an aggregate amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 10,000 times the aggregate amount to be
distributed per share to holders of Common Stock; nor shall any distribution be
made (B) to the holders of stock ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the Series B Preferred Stock,
except distributions made ratably on the Series B Preferred Stock and all other
such parity stock in proportion to the total amounts to which the holders of all
such shares are entitled upon such liquidation, dissolution or winding up. In
the event the corporation shall at any time after the Rights Declaration Date
declare or pay any dividend on Common Stock payable in shares of Common Stock,
or effect a subdivision or combination or consolidation of the outstanding
shares of Common Stock (by reclassification or otherwise) 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 B Preferred Stock are entitled under
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.
36
Section 7. Consolidation, Merger, etc. In case the corporation shall enter
into any consolidation, merger, combination or other transaction in which the
shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, or otherwise changed, then in any
such case the shares of Series B Preferred Stock shall at the same time be
similarly exchanged or changed in an amount per share (subject to the provision
for adjustment hereinafter set forth) equal to 10,000 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 changed or
exchanged. In the event the corporation shall at any time after the Rights
Declaration Date declare or pay any dividend on Common Stock payable in shares
of Common Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise) into a
greater or lesser number of shares of Common Stock, then in each such case the
amount set forth in the preceding sentence with respect to the exchange or
change of shares of Series B 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 B Preferred Stock shall not
be redeemable. Notwithstanding the foregoing, the corporation may acquire shares
of Series B Preferred Stock in any other manner permitted by law.
Section 9. Rank. Unless otherwise provided in the Certificate of
Incorporation or an amendment thereof relating to a subsequent series of
Preferred Stock of the corporation, the Series B Preferred Stock shall rank
junior to all other series of the corporation's Preferred Stock, as to the
payment of dividends and the distribution of assets on liquidation, dissolution
or winding up, and senior to the Common Stock of the corporation.
Section 10. Amendment. The Certificate of Incorporation shall not be
amended in any manner which would materially alter or change the powers,
preferences or special rights of the Series B Preferred Stock so as to affect
them adversely without the affirmative vote of the holders of at least a
majority of the outstanding shares of Series B Preferred Stock, voting
separately as a class.
37
Section 11. Fractional Shares. Series B Preferred Stock may be issued in
ten-thousandths of a share or other fractions of a share which shall entitle the
holder, in proportion to such holder's fractional shares, to exercise voting
rights, receive dividends, participate in distributions and to have the benefit
of all other rights of holders of Series B Preferred Stock.
NATIONAL R.V. HOLDINGS, INC.
By: ________________________________
Name: Xxxxxxx X. Xxxxx
Title: Secretary
38
EXHIBIT B
[Form of Face of Right Certificate]
Certificate No.R ____ Rights
NOT EXERCISABLE AFTER AUGUST 19, 2006, OR EARLIER IF REDEEMED. THE RIGHTS ARE
SUBJECT TO REDEMPTION AT $.001 PER RIGHT ON THE TERMS SET FORTH IN THE RIGHTS
AGREEMENT. UNDER CERTAIN CIRCUMSTANCES (SPECIFIED IN THE RIGHTS AGREEMENT),
RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS DEFINED IN THE RIGHTS
AGREEMENT) OR ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID.
[THE RIGHTS REPRESENTED BY THIS RIGHT CERTIFICATE ARE OR WERE BENEFICIALLY OWNED
BY A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE
OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT). THIS
RIGHT CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY BECOME VOID IN THE
CIRCUMSTANCES SPECIFIED IN THE RIGHTS AGREEMENT.](1)
Right Certificate
NATIONAL R.V. HOLDINGS, INC.
This certifies that ______________________________, or registered assigns,
is the registered owner of the number of Rights set forth above, each of which
entitles the registered owner thereof, subject to the terms, provisions and
conditions of the Rights Agreement dated as of August 20, 1996 (the "Rights
Agreement"), between National R.V. Holdings, Inc., a Delaware corporation (the
"Company"), and Continental Stock Transfer & Trust Company, a New York
corporation (the "Rights Agent," which term shall include every successor Rights
Agent under the Rights Agreement), 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 p.m. (New York time) on August 19, 2006, at the office or agency
of the Rights Agent or its successor designated for such purpose, one
39
ten-thousandth of a fully paid nonassessable share of Series B Junior
Participating Preferred Stock, $.01 par value (the "Preferred Shares"), of the
Company, at a purchase price initially of $30.00 per one ten-thousandth of a
Preferred Share (the "Purchase Price"), upon presentation and surrender of this
Right Certificate with the Form of Election to Purchase and related Certificate
duly executed. As provided in the Rights Agreement, the Purchase Price and the
number of Preferred Shares which may be purchased upon the exercise of the
Rights evidenced by this Right Certificate are subject to modification and
adjustment upon the happening of certain events.
This Right Certificate is subject to all of the terms, provisions and
conditions of the Rights Agreement, which terms, provisions and conditions are
hereby incorporated herein by reference and made a part hereof and to which
Rights Agreement reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities hereunder of the
Rights Agent, the Company and the holders of the Right Certificates. Without
limiting the generality of the foregoing, the Rights evidenced by this Right
Certificate shall not be exercisable (a) unless and until any regulatory
approvals required for the issuance and/or sale of securities upon such exercise
have been obtained, (b) in any jurisdiction if any requisite qualification in
such jurisdiction shall not have been obtained, or (c) the exercise thereof, or
the issuance and/or sale of the securities issuable upon such exercise, shall
not be permitted under any applicable law or administrative or judicial
regulation or order. Copies of the Rights Agreement are on file at the principal
executive offices of the Company and are available from the Rights Agent or the
Company upon written request.
Upon the occurrence of certain events specified in Section 7(f) of the
Rights Agreement, if the Rights evidenced by this Right Certificate are or were
beneficially owned by an Acquiring Person or an Affiliate or Associate of an
Acquiring Person (as such terms are defined in the Rights Agreement) or, under
certain circumstances, a transferee of any such Acquiring Person, Affiliate or
Associate, such Rights shall become null and void and any holder thereof
(whether or not such holder is an Acquiring Person or an Affiliate or Associate
of an Acquiring Person) shall thereafter have no right to exercise such Rights.
In certain circumstances described in the Rights Agreement, the Rights
evidenced hereby may entitle the holder hereof to purchase capital stock of an
entity other than the Company or receive cash or other assets, all as prescribed
in the Rights Agreement.
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 equal to the aggregate number of Rights
evidenced by the Right Certificate or Right Certificates surrendered. If this
Right Certificate shall be exercised in part, the holder shall be entitled to
receive upon surrender hereof another Right Certificate or Right Certificates
for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights evidenced by
this Right Certificate may, but are not required to, be redeemed by the Company
at a redemption price of $.001 per Right or exchanged by the Company at the rate
of one Common Share per Right.
--------------
(1) That portion of the legend in brackets shall be inserted only if applicable
and shall replace the preceding sentence.
40
Fractional Preferred Shares will be issued upon the exercise of any Right
or Rights evidenced hereby only in fractions which are integral multiples of one
ten-thousandth of a Preferred Share (which may, at the election of the Company,
be evidenced by depositary receipts). In lieu of the issuance of fractional
shares other than in integral multiples of one ten-thousandth of a Preferred
Share, a cash payment will be made as provided in the Rights Agreement.
No holder of this Right Certificate shall be entitled to vote or receive
dividends or be deemed for any purpose the holder of the Preferred Shares or of
any other securities of the Company which may at any time be issuable on the
exercise hereof, nor shall anything contained in the Rights Agreement or herein
be construed to confer upon the holder hereof, as such, any of the rights of a
shareholder of the Company or any right to vote for the election of directors or
upon any matter submitted to shareholders at any meeting thereof, to give or
withhold consent to any corporate action, to receive notice of meetings or other
actions affecting shareholders (except as provided in the Rights Agreement), or
to receive dividends or subscription rights, or otherwise, until the Right or
Rights evidenced by this Right Certificate shall have been exercised 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: NATIONAL R.V. HOLDINGS, INC.
________________________ _________________________
Secretary President
Countersigned:
CONTINENTAL STOCK TRANSFER & TRUST COMPANY
By: _______________________________
Authorized Officer
41
[Form of Reverse Side of Right Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Right Certificate.)
FOR VALUE RECEIVED _________________ hereby sells, assigns and transfers
unto________________________________________________
(please print name and address of transferee)
______________________________________________________________
this Right Certificate, together with all right, title and interest therein, and
does hereby irrevocably constitute and appoint ______________________ Attorney,
to transfer the within Right Certificate on the books of the within-named
Company, with full power of substitution.
Dated: ____________________________
________________________
Signature
Signature Guaranteed:
42
CERTIFICATE
The undersigned hereby certifies by checking the appropriate boxes that:
(1) this Right Certificate [ ] is [ ] is not being sold, assigned and
transferred by or on behalf of a Person who is or was an Acquiring
Person or an Affiliate or Associate of any such Acquiring Person (as
such terms are defined in the Rights Agreement); and
(2) after due inquiry and to the best knowledge of the undersigned, the
undersigned [ ] did [ ] did not acquire the Rights evidenced by this
Right Certificate from any Person who is, was or subsequently became
an Acquiring Person or an Affiliate or Associate of an Acquiring
Person.
Dated: ______________________
_________________________
Signature
________________________________________________________________
NOTICE
The signatures in the foregoing Assignment and Certificate must correspond
to the name as written upon the face of this Right Certificate in every
particular, without alteration or enlargement or any change whatsoever.
The signatures in the foregoing Assignment must be guaranteed by an
eligible guarantor as defined in Rule 17Ad-15 promulgated under the Securities
Exchange Act of 1934, as amended.
In the event the certification set forth above is not completed, the
Company may deem the beneficial owner of the Rights evidenced by this Right
Certificate to be an Acquiring Person or an Affiliate or Associate thereof (as
such terms are defined in the Rights Agreement) and, in the case of an
assignment, may affix a legend to that effect on any Right Certificates issued
in exchange for this Right Certificate.
43
[Form of Reverse Side of Right Certificate -- continued]
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to
exercise the Right Certificate.)
TO: NATIONAL R.V. HOLDINGS, INC.
The undersigned hereby irrevocably elects to exercise Rights represented by
this Right Certificate to purchase the Preferred Shares issuable upon the
exercise of such Rights and requests that certificates for such Preferred Shares
be issued in the name of:
________________________________________________________________
(Please print name and address)
________________________________________________________________
Please insert social security or other identifying number:
____________________
If such number of Rights shall not be all the Rights evidenced by this Right
Certificate, a new Right Certificate for the balance remaining of such Rights
shall be registered in the name of and delivered to:
_______________________________________________________________
(Please print name and address)
Dated: ______________
__________________________________________________
Signature
Signature Guaranteed:
44
CERTIFICATE
The undersigned hereby certifies by checking the appropriate boxes that:
(1) the Rights evidenced by this Right Certificate [ ] are [ ] are not
beneficially owned by an Acquiring Person or an Affiliate or an
Associate thereof (as such terms are defined in the Rights Agreement);
and
(2) after due inquiry and to the best knowledge of the undersigned, the
undersigned [ ] did [ ] did not acquire the Rights evidenced by this
Right Certificate from any person who is, was or subsequently became
an Acquiring Person or an Affiliate or Associate of an Acquiring
Person.
Dated: __________________________
_____________________________________
Signature
45
NOTICE
The signatures in the foregoing Form of Election to Purchase and
Certificate must correspond to the name as written upon the face of this Right
Certificate in every particular, without alteration or enlargement or any change
whatsoever.
The signatures in the foregoing Form of Election to Purchase must be
guaranteed by an eligible guarantor as defined in Rule 17Ad-15 promulgated under
the Securities Exchange Act of 1934, as amended.
In the event the certification set forth above is not completed, the
Company may deem the beneficial owner of the Rights evidenced by this Right
Certificate to be an Acquiring Person or an Affiliate or Associate thereof (as
such terms are defined in the Rights Agreement) and, in the case of an
assignment, may affix a legend to that effect on any Right Certificates issued
in exchange for this Right Certificate.
46
EXHIBIT C
NATIONAL R.V. HOLDINGS, INC.
SUMMARY OF RIGHTS TO PURCHASE PREFERRED STOCK
On August 20, 1996, the Board of Directors of National R.V. Holdings, Inc.
(the "Company") declared a dividend distribution of one Right for each
outstanding share of common stock, $.01 par value (the "Common Stock"), of the
Company to the holders of record of Common Stock at the close of business on
September 4, 1996 (the "Record Date"). Each Right entitles the registered holder
to purchase from the Company one ten-thousandth of a share of Series B Junior
Participating Preferred Stock, $.01 par value (the "Preferred Shares"), at a
price of $30.00 per one ten-thousandth of a Preferred Share (the "Purchase
Price"), subject to adjustment. The description and terms of the Rights are set
forth in a Rights Agreement dated as of August 20, 1996 (the "Rights
Agreement"), between the Company and Continental Stock Transfer & Trust Company,
as Rights Agent (the "Rights Agent").
Initially, the Rights will be attached to all Common Stock certificates
representing shares then outstanding, and no separate certificates evidencing
Rights (the "Right Certificates") will be distributed. Until the earlier to
occur of (i) 10 days following a public announcement that a person or group of
affiliated or associated persons (other than the Company, any subsidiary of the
Company, or their employee benefit plans, a person who acquires his shares in a
Sanctioned Tender Offer, as defined below, and certain other persons) (an
"Acquiring Person"), acquired, or obtained the right to acquire, beneficial
ownership of 15% or more of the outstanding shares of Common Stock and (ii) 10
business days (or such later date as may be determined by action of the Board of
Directors) following the commencement of (or the announcement of an intention to
make) a tender offer or exchange offer (other than a Sanctioned Tender 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 Rights
will be evidenced, with respect to any of the Common Stock certificates
outstanding as of the Record Date, by such Common Stock certificate. The earlier
of the dates described in clauses (i) and (ii) above is referred to as the
"Distribution Date." A "Sanctioned Tender Offer" is a tender or exchange offer
for all outstanding shares of Common Stock at a price and on terms which a
majority of the Board of Directors which are not Acquiring Persons or affiliates
or associates thereof determines to be fair and in the best interests of the
Company and its shareholders, other than the person making such offer and his
affiliates and associates.
47
The Rights Agreement provides that, until the Distribution Date, the Rights
will be transferred with and only with the Common Stock. As long as the Rights
are attached to the Common Stock, the Company will issue one Right with each
share of Common Stock that becomes outstanding so that all outstanding shares
will have attached Rights. Until the Distribution Date (or earlier redemption or
expiration of the Rights), (i) Common Stock certificates issued after the Record
Date upon transfer or new issuance of Common Stock will contain a notation
incorporating the Rights Agreement by reference and (ii) the surrender for
transfer of any certificates evidencing Common Stock will also constitute the
transfer of the Rights associated with the Common Stock represented by such
certificate. As soon as practicable following the Distribution Date, 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 and until all
necessary regulatory approvals have been obtained. The Rights will expire at the
earliest of (i) August 19, 2006, (ii) upon consummation of certain approved
merger or exchange transactions as described below, and (iii) upon redemption by
the Company as described below.
In the event that any person becomes an Acquiring Person, proper provision
shall be made so that each holder of a Right (except as provided below) will
thereafter have the right, provided that all necessary regulatory approvals have
been obtained, to receive upon exercise that number of shares of Common Stock of
the Company having a market value of two times the exercise price of the Right.
In the event that, at any time following the Distribution Date, the Company
is acquired in a merger or other business combination transaction, or more than
50% of its assets or earning power is sold, proper provision shall be made so
that each holder of a Right (except as provided below) will thereafter have the
right to receive, upon the exercise at the then current exercise price of the
Right, that number of shares of common stock of the acquiring or surviving
company having a market value of two times the exercise price of the Right. The
Rights will expire in connection with a merger or other business combination
transaction following a Sanctioned Tender Offer if shareholders are offered the
same price and form of consideration in the merger or other business combination
transaction as that paid in the Sanctioned Tender Offer.
Following the occurrence of any of the events described in the preceding
two paragraphs, any Rights that are or (under certain circumstances specified in
the Rights Agreement) were beneficially owned by any Acquiring Person shall
immediately become null and void.
The Purchase Price payable, and the number of Preferred Shares or other
securities or property issuable, upon exercise of the Rights are subject to
adjustment from time to time to prevent dilution.
No fractional Preferred Shares other than fractions in multiples of one
ten-thousandth of a share will be issued and, in lieu thereof, an adjustment in
cash will be made based on the market price of the Preferred Shares on the last
trading date prior to the date of exercise.
At any time prior to the tenth day following the first public announcement
of the existence of an Acquiring Person, the Company may redeem the Rights in
whole, but not in part, at a price of $.001 per Right (the "Redemption Price").
Subject to certain conditions, the Company's right of redemption may be
reinstated after the expiration of the ten-day redemption period if each
Acquiring Person reduces its beneficial ownership to 10% or less of the
outstanding shares of Common Stock in a transaction or series of transactions
not involving the Company or any subsidiary of the Company. Immediately upon the
action of the Board of Directors ordering the redemption of the Rights (or at
such time and date thereafter as the Board of Directors may specify), the right
to exercise the Rights will terminate and the only right of the holders of
Rights will be to receive the Redemption Price.
48
At any time after a person becomes an Acquiring Person and prior to the
acquisition by such Acquiring Person of 50% or more of the outstanding shares of
Common Stock, the Company may, provided that all necessary regulatory approvals
have been obtained, exchange the Rights (other than Rights beneficially owned by
such Acquiring Person which became null and void), in whole or in part, for
Common Stock at the rate of one share per Right, subject to adjustment.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a shareholder of the Company including, without limitation, the right
to vote or to receive dividends.
The provisions of the Rights Agreement may be amended in any manner prior
to the Distribution Date. After the Distribution Date, the provisions of the
Rights Agreement may be amended in order to cure any ambiguity, defect or
inconsistency, to make changes which do not adversely affect the interests of
holders of Rights (excluding the interest of any Acquiring Person), or to
shorten or lengthen any time period under the Rights Agreement; provided,
however, that no amendment to adjust the time period governing redemption shall
be made at such time as the Rights are not redeemable.
A copy of the Rights Agreement is being filed with the Securities and
Exchange Commission as an exhibit to a Registration Statement on Form 8-A. A
copy of the Rights Agreement is available free of charge from the Company. This
summary description of the Rights does not purport to be complete and is
qualified in its entirety by reference to the Rights Agreement, which is hereby
incorporated herein by reference.
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49
