Exhibit I
PARKWAY PROPERTIES, INC.
AND
COMPUTERSHARE INVESTOR SERVICES, LLC
RIGHTS AGENT
AMENDED AND RESTATED
RIGHTS AGREEMENT
DATED AS OF FEBRUARY 21, 2002
TABLE OF CONTENTS
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RECITALS ............................................................................................1
TERMS OF AGREEMENT ............................................................................................1
Section 1. Certain Definitions.........................................................................1
Section 2. Appointment of Rights Agent.................................................................7
Section 3. Issuance of Rights Certificates.............................................................8
(a) DISTRIBUTION DATE; RIGHTS CERTIFICATES.............................................8
(b) SUMMARY OF RIGHTS; COMMON STOCK CERTIFICATES.......................................9
(c) LEGEND.............................................................................9
Section 4. Form of Rights Certificates................................................................10
(a) FORM; DATE........................................................................10
(b) ACQUIRING PERSON OR ADVERSE PERSON LEGEND.........................................10
Section 5. Countersignature and Registration..........................................................11
(a) SIGNATURES........................................................................11
(b) REGISTRATION AND TRANSFER.........................................................11
Section 6. Transfer, Split Up, Combination and Exchange of Rights Certificates;
Mutilated, Destroyed, Lost or Stolen Rights Certificates...................................12
(a) PROCEDURES........................................................................12
(b) ISSUANCE OF NEW RIGHTS CERTIFICATE................................................12
Section 7. Exercise of Rights; Purchase Price; Expiration Date of Rights..............................13
(a) EXERCISE..........................................................................13
(b) PURCHASE PRICE; FORM OF PAYMENT...................................................13
(c) ACTION BY RIGHTS AGENT............................................................13
(d) PARTIAL EXERCISE..................................................................14
(e) TERMINATION OF ACQUIRING PERSON'S OR ADVERSE PERSON'S RIGHTS......................14
(f) CERTIFICATE BY REGISTERED HOLDER; EVIDENCE OF IDENTITY............................15
Section 8. Cancellation of Rights Certificates........................................................15
Section 9. Reservation and Availability of Capital Stock..............................................15
(a) RESERVATION OF STOCK..............................................................15
(b) LISTING...........................................................................15
(c) REGISTRATION......................................................................15
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(d) COVENANT REGARDING STOCK..........................................................16
(e) TRANSFER TAXES AND CHARGES........................................................16
Section 10. Preferred Stock Record Date................................................................17
Section 11. Adjustment of Purchase Price, Number and Kind of Shares or
Number of Rights...........................................................................17
(a) CERTAIN ADJUSTMENTS...............................................................17
(b) PURCHASE PRICE ADJUSTMENT--PREFERRED STOCK........................................21
(c) PURCHASE PRICE ADJUSTMENT--DISTRIBUTION OTHER THAN
PREFERRED STOCK ..................................................................22
(d) CURRENT MARKET PRICE..............................................................22
(e) PURCHASE PRICE ADJUSTMENT THRESHOLD...............................................23
(f) PURCHASE PRICE ADJUSTMENT--EQUIVALENT SHARES......................................24
(g) POST-ADJUSTMENT RIGHTS ISSUANCES..................................................24
(h) PREFERRED STOCK ANTI-DILUTION.....................................................24
(i) ADJUSTMENT OF NUMBER OF RIGHTS....................................................24
(j) FORM OF RIGHTS CERTIFICATES.......................................................25
(k) ADJUSTMENT BELOW PAR OR STATED VALUE..............................................25
(l) ADJUSTMENT EFFECTIVE AS OF EFFECTIVE DATE.........................................25
(m) TAX ADJUSTMENTS...................................................................26
(n) RESTRICTIONS ON CERTAIN TRANSACTIONS..............................................26
(o) ADDITIONAL RESTRICTIONS TO PROTECT BENEFITS OF RIGHTS.............................26
(p) COMMON STOCK ADJUSTMENTS..........................................................27
Section 12. Certificate of Adjusted Purchase Price or Number of Shares.................................27
Section 13. Consolidation, Merger or Sale or Transfer of Assets, Cash Flow
or Earning Power...........................................................................27
(a) FLIP-OVER EVENT...................................................................27
(b) PRINCIPAL PARTY...................................................................28
(c) CONDITIONS TO CONSUMMATION OF FLIP-OVER EVENT.....................................29
(d) CERTAIN EXCEPTIONS................................................................30
(e) CERTAIN PROTECTIONS FOR RIGHTS AGENT..............................................30
Section 14. Fractional Rights and Fractional Shares....................................................30
(a) FRACTIONAL RIGHTS.................................................................30
(b) FRACTIONAL SHARES OF PREFERRED STOCK..............................................31
(c) FRACTIONAL SHARES OF COMMON STOCK.................................................31
(d) WAIVER OF FRACTIONAL RIGHTS AND SHARES............................................32
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Section 15. Rights of Action...........................................................................32
Section 16. Agreement of Rights Holders................................................................32
Section 17. Rights Certificate Holder Not Deemed a Stockholder.........................................33
Section 18. Concerning the Rights Agent................................................................33
(a) COMPENSATION......................................................................33
(b) LIMITS ON DAMAGES.................................................................34
(c) RELIANCE..........................................................................34
Section 19. Merger or Consolidation or Change of Name of Rights Agent..................................34
(a) SUCCESSOR.........................................................................34
(b) PRIOR COUNTERSIGNATURES...........................................................34
Section 20. Duties of Rights Agent.....................................................................35
(a) LEGAL COUNSEL.....................................................................35
(b) CERTIFICATION BY COMPANY..........................................................35
(c) LIABILITY FOR CERTAIN CONDUCT.....................................................35
(d) NON-LIABILITY FOR STATEMENTS OF FACT AND RECITALS HEREIN..........................35
(e) NON-RESPONSIBILITY FOR CERTAIN MATTERS............................................35
(f) FURTHER ASSURANCES BY COMPANY.....................................................36
(g) INSTRUCTIONS FOR COMPANY OFFICERS.................................................36
(h) DEALING IN RIGHTS; OTHER TRANSACTIONS WITH COMPANY................................37
(i) USE OF AGENTS; REASONABLE CARE BY AGENTS..........................................37
(j) EXPENDITURES......................................................................37
(k) CONSULTATION WITH COMPANY CONCERNING SURRENDERED RIGHTS
CERTIFICATES......................................................................37
(l) NOTICE TO RIGHTS AGENT............................................................37
(m) SPECIFIC NOTIFICATION.............................................................37
Section 21. Change of Rights Agent.....................................................................37
Section 22. Issuance of New Rights Certificates........................................................38
Section 23. Redemption and Termination.................................................................39
(a) REDEMPTION........................................................................39
(b) SPECIAL MEETING...................................................................39
(c) TERMINATION.......................................................................41
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Section 24. Exchange...................................................................................42
(a) RIGHT TO EXCHANGE.................................................................42
(b) EFFECT OF EXCHANGE; PROCEDURE.....................................................42
(c) COMMON STOCK EQUIVALENTS..........................................................42
(d) INSUFFICIENT COMMON STOCK.........................................................43
(e) FRACTIONAL SHARES.................................................................43
Section 25. Notices....................................................................................43
(a) ADDRESSES AND NOTICE METHOD FOR ALL NOTICES.......................................43
(b) NOTICE OF CERTAIN DISTRIBUTIONS, ETC..............................................44
(c) OTHER TRANSACTIONS................................................................45
Section 26. Supplements and Amendments.................................................................45
Section 27. Successors.................................................................................46
Section 28. Determinations and Actions by the Board, Disinterested Directors, etc......................47
Section 29. Benefits of this Agreement.................................................................47
Section 30. Severability...............................................................................47
Section 31. Governing Law..............................................................................48
Section 32. Counterparts...............................................................................48
Section 33. Descriptive Headings.......................................................................48
Exhibit A Form of Rights Certificate
Exhibit B Summary of Rights
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AMENDED AND RESTATED
RIGHTS AGREEMENT
AMENDED AND RESTATED RIGHTS AGREEMENT, dated as of February
21, 2002, between PARKWAY PROPERTIES, INC., a Maryland corporation (the
"Company"), and COMPUTERSHARE INVESTOR SERVICES, LLC, a Delaware limited
liability company (the "Rights Agent").
RECITALS
On September 7, 0000, Xxx Xxxxxxx Company, the Company's
predecessor, declared a dividend distribution of one Right for each of its then
outstanding shares of Common Stock, each Right representing the right to
purchase one share of Common Stock of the Company on the terms and conditions
set forth in the Rights Agreement between The Parkway Company, a Texas
Corporation, and Society National Bank, the Rights Agent's predecessor (the
"Original Rights Agreement"). The Company and the Rights Agent desire to amend
and restate the Original Rights Agreement as set forth herein.
TERMS OF AGREEMENT
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 the Agreement
(as defined herein), 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 20% or more of the shares of Common Stock then outstanding,
but shall not include (i) the Company, (ii) any Subsidiary of the Company, (iii)
any employee benefit plan of the Company or of any Subsidiary of the Company, or
any Person or entity organized, appointed or established by the Company for or
pursuant to the terms of any such plan, (iv) any Person who becomes an Acquiring
Person solely as a result of a reduction in the number of shares of Common Stock
outstanding due to the repurchase of shares of Common Stock by the Company,
unless and until such Person shall purchase or otherwise become (as a result of
actions taken by such Person or its Affiliates or Associates) the Beneficial
Owner of additional shares of Common Stock constituting 1% or more of the then
outstanding shares of Common Stock, or (vi) Five Arrows Realty Securities III,
L.L.C., a Delaware limited liability company ("Five Arrows"), or any of its
Affiliates or Associates, provided, however, that for purposes of this
Agreement, Associates of Five Arrows or its Affiliates shall not be deemed to
beneficially own any shares of Common Stock that are beneficially owned by Five
Arrows or its Affiliates. Notwithstanding the foregoing, if the Board of
Directors of the Company determines in good faith that a Person who would
otherwise be an Acquiring Person, as defined pursuant to the foregoing
provisions of this paragraph, has become such inadvertently (including, without
limitation, because (i) such Person was unaware that it beneficially owned a
percentage of Common Stock that would otherwise cause such Person to be an
Acquiring Person, or (ii) such Person was aware of the extent of its Beneficial
Ownership of Common Stock but had no actual knowledge of the consequences of
such Beneficial Ownership under this Agreement) and without any intention of
changing or influencing control of the Company, and such Person divests as
promptly as practicable a sufficient number of shares of Common Stock so that
such Person would no longer be an Acquiring Person as defined pursuant to the
foregoing provisions of this paragraph, then such Person shall not be deemed to
be or to have become an Acquiring Person for any purpose of this Agreement. For
purposes of the foregoing and all other provisions of this Agreement, in
computing the percentage of the shares of Common Stock outstanding at any time
that are beneficially owned by a Person and its Affiliates and Associates, the
shares of Common Stock then outstanding shall be deemed to include all shares of
Common Stock beneficially owned by such Person and its Affiliates and Associates
as defined in paragraph (g) of this Section 1, even if such shares are not then
outstanding.
(b) "ACT" shall mean the Securities Act of 1933, as
amended and in effect from time to time.
(c) "ADJUSTMENT SHARES" shall have the meaning set
forth in Section 11(a)(ii).
(d) "ADVERSE PERSON" shall mean any Person declared
to be an Adverse Person by the Board upon determination by the Board that such
Person, alone or together with its Affiliates and Associates, is the Beneficial
Owner of an amount of Common Stock which the Board of Directors determines to be
substantial (which amount shall in no event be less than 15% of the shares of
Common Stock then outstanding) and a determination by the Board that (i) such
Beneficial Ownership by such Person is intended to cause the Company to
repurchase any of the Common Stock beneficially owned by such Person or to cause
pressure on the Company to take action or enter into a transaction or series of
transactions intended to provide such Person with short-term financial gain
under circumstances where the Board determines that the best long-term interests
of the Company and its shareholders would not be served by taking such action or
entering into such transaction or series of transactions at that time or (ii)
such Beneficial Ownership is causing or is reasonably likely to cause a material
adverse impact on the business or prospects of the Company (including, but not
limited to, jeopardization of the status of the Company as a "real estate
investment trust" under the Internal Revenue Code of 1986, as amended,
impairment of
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relationships with the Company's tenants, customers, lenders, providers of
financial and other services, or regulators or impairment of the Company's
ability to maintain its competitive position); provided, however, that neither
Five Arrows nor any Associate or Affiliate of Five Arrows is an Adverse Person
for purposes of this Agreement.
(e) "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.
(f) "AGREEMENT" shall mean this Rights Agreement as
originally executed or as it may from time to time be supplemented or amended
pursuant to the applicable provisions hereof.
(g) 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, directly or indirectly, has the right to
acquire (whether such right is exercisable immediately or after the passage of
time or the occurrence of conditions), pursuant to any agreement, arrangement or
understanding (whether or not in writing) 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," (A) securities tendered pursuant to a
tender or exchange offer made by such Person or any of such Person's Affiliates
or Associates until such tendered securities are accepted for purchase or
exchange, or (B) securities issuable upon exercise of Rights at any time prior
to the occurrence of a Triggering Event, or (C) securities issuable upon
exercise of Rights from and after the occurrence of a Triggering Event which
Rights were acquired by such Person or any of such Person's Affiliates or
Associates prior to the Distribution Date or pursuant to Section 3(a) or Section
22 hereof (the "Original Rights") or pursuant to Section 11(i) hereof in
connection with an adjustment made with respect to any Original Rights;
(ii) which such Person or any of such
Person's Affiliates or Associates, directly or indirectly, has the right to vote
or dispose of or has "beneficial ownership" of (as determined pursuant to Rule
13d-3 of the General Rules and Regulations under the Exchange Act), including
pursuant to any agreement, arrangement or understanding, whether or not in
writing; provided, however, that a Person shall not be deemed the "Beneficial
Owner" of, or to "beneficially own," any security under this subparagraph (ii)
as a result of an agreement, arrangement or understanding to vote such security
if such agreement, arrangement or understanding: (A) arises solely from a
revocable proxy given in response to a public proxy or consent solicitation made
pursuant to, and in accordance with, the applicable
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provisions of the General Rules and Regulations under the Exchange Act, and (B)
is not also then reportable by such Person on Schedule 13D or Schedule 13G under
the Exchange Act (or any comparable or successor reports); or
(iii) which are beneficially owned, directly
or indirectly, by any other Person (or any Affiliate or Associate thereof) with
which such Person (or any of such Person's Affiliates or Associates) has any
agreement, arrangement or understanding (whether or not in writing), for the
purpose of acquiring, holding, voting (except pursuant to a revocable proxy as
described in the proviso to subparagraph (ii) of this paragraph (g)) or
disposing of any voting securities of the Company; provided, however, that
nothing in this subparagraph (iii) shall cause a Person engaged in business as
an underwriter of securities to be the "Beneficial Owner" of, or to
"beneficially own," any securities acquired through such Person's participation
in good faith in a firm commitment underwriting until the expiration of forty
days after the date of such acquisition.
(h) "BOARD" means the Board of Directors of the
Company.
(i) "BUSINESS DAY" shall mean any day other than a
Saturday, Sunday or a day on which the New York Stock Exchange or banking
institutions in the State of New York or Illinois are authorized or obligated by
law or executive order to close.
(j) "CLOSE OF BUSINESS" on any given date shall mean
5:00 P.M., New York City time, on such date; provided, however, that if such
date is not a Business Day it shall mean 5:00 P.M., New York City time, on the
next succeeding Business Day.
(k) "COMMON STOCK" shall mean the common stock, par
value $0.001 per share, of the Company, except that "Common Stock" when used
with reference to any Person other than the Company shall mean the capital stock
of such Person with the greatest voting power, or the equity securities or other
equity interest having power to control or direct the management, of such
Person.
(l) "COMMON STOCK EQUIVALENTS" shall have the meaning
set forth in Section 11(a)(iii).
(m) "COMPANY" shall mean the Person named as the
"Company" in the first paragraph of this Agreement until a successor corporation
shall have become such, or until a Principal Party shall assume, and thereafter
be liable for, all obligations and duties of the Company hereunder, pursuant to
the applicable provisions of this Agreement, and thereafter "Company" shall mean
such successor corporation or Principal Party.
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(n) "CURRENT MARKET PRICE" shall have the meaning set
forth in Section 11(d).
(o) "CURRENT VALUE" shall have the meaning set forth
in Section 11(a)(iii).
(p) "DISINTERESTED DIRECTOR" shall mean (i) any
member of the Board, while such individual is a member of the Board, who is not
an Acquiring Person or an Adverse Person, or an Affiliate or Associate of an
Acquiring Person or an Adverse Person, or a representative of an Acquiring
Person or an Adverse Person or any such Affiliate or Associate, and was a member
of the Board prior to the date of this Agreement, or (ii) any individual who
subsequently becomes a member of the Board, while such individual is a member of
the Board, who is not an Acquiring Person or an Adverse Person or an Affiliate
or Associate of an Acquiring Person or an Adverse Person, or a representative of
an Acquiring Person or Adverse Person or any such Affiliate or Associate, if
such individual's nomination for election or election to the Board is
recommended or approved by a majority of the Disinterested Directors.
(q) "DISTRIBUTION DATE" shall have the meaning set
forth in Section 3(a).
(r) "EQUIVALENT PREFERRED STOCK" shall have the
meaning set forth in Section 11(b).
(s) "EXCHANGE ACT" shall mean the Securities Exchange
Act of 1934, as amended and in effect on the date of this Agreement.
(t) "EXCHANGE NUMBER" shall mean one-half of the
number of shares of Common Stock, one-thousandths of a share of Preferred Stock,
or shares or other units of other property for which a Right is exercisable
immediately prior to the time of the action of the Board to exchange the Rights.
(u) "EXPIRATION DATE" shall have the meaning set
forth in Section 7(a).
(v) "FINAL EXPIRATION DATE" shall mean the close of
business on September 6, 2005.
(w) "FLIP-IN EVENT" shall mean any event described in
Section 11(a)(ii)(A) or (B).
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(x) "FLIP-IN TRIGGER DATE" shall have the meaning set
forth in Section 11(a)(iii).
(y) "FLIP-OVER EVENT" shall mean any event described
in clauses (x), (y) or (z) of Section 13(a).
(z) "NASDAQ" shall mean National Association of
Securities Dealers, Inc. Automated Quotation System.
(aa) "PERSON" shall mean any individual, firm,
corporation, partnership, trust, limited liability partnership, limited
liability corporation, or other entity.
(bb) "PREFERRED STOCK" shall mean shares of Series C
Preferred Stock, par value $0.001 per share, of the Company, and, to the extent
that there are not a sufficient number of shares of Series C Preferred Stock
authorized to permit the full exercise of the Rights, any other series of
Preferred Stock, par value $0.001 per share, of the Company designated for such
purpose containing terms substantially similar to the terms of the Series C
Preferred Stock.
(cc) "PRINCIPAL PARTY" shall have the meaning set
forth in Section 13(b).
(dd) "PURCHASE PRICE" shall have the meaning set
forth in Section 7(b).
(ee) "RECORD DATE" shall mean September 7, 1995.
(ff) "REDEMPTION DATE" shall have the meaning set
forth in Section 23(a).
(gg) "REDEMPTION PRICE" shall have the meaning set
forth in Section 23(a).
(hh) "RIGHTS" shall mean the right to purchase one
one-thousandth of a share of Preferred Stock upon the terms and subject to the
conditions set forth in this Agreement.
(ii) "RIGHTS AGENT" shall mean the Person named as
the "Rights Agent" in the first paragraph of the Agreement until a successor
Rights Agent shall have become such pursuant to the applicable provisions hereof
and thereafter "Rights Agent" shall mean such successor Rights Agent. If at any
time there is more than one Person appointed by
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the Company as Rights Agent pursuant to the applicable provisions of the
Agreement, "Rights Agent" shall mean and include each such Person.
(jj) "RIGHTS CERTIFICATES" shall have the meaning set
forth in Section 3(a).
(kk) "RIGHTS DIVIDEND DECLARATION DATE" shall mean
September 29, 1995.
(ll) Any reference in this Agreement to a specific
"SECTION" shall refer to a Section of the Agreement unless the language or
context indicates otherwise.
(nn) "SPREAD" shall have the meaning set forth in
Section 11(a)(iii).
(oo) "STOCK ACQUISITION DATE" shall mean the first
date of public announcement (which, for purposes of this definition, shall
include, without limitation, a report filed pursuant to Section 13(d) or Section
13(g) of the Exchange Act) by the Company or an Acquiring Person that an
Acquiring Person has become such or by the Company that an Adverse Person has
become such.
(pp) "SUBSIDIARY" shall mean, with reference to any
Person, any corporation of which an amount of voting securities sufficient to
elect at least a majority of the directors of such corporation is beneficially
owned, directly or indirectly, by such Person, or otherwise controlled by such
Person.
(qq) "SUBSTITUTION PERIOD" shall have the meaning set
forth in Section 11(a)(iii).
(rr) "SUMMARY OF RIGHTS" shall have the meaning set
forth in Section 3 (b).
(ss) "TRADING DAY" shall have the meaning set forth
in Section 11(d)(i).
(tt) "TRIGGERING EVENT" shall mean any Flip-in Event
or any Flip-over Event.
SECTION 2. APPOINTMENT OF RIGHTS AGENT. The Company hereby
appoints the Rights Agent to act as agent for the Company in accordance with the
terms and conditions hereof, and the Rights Agent hereby accepts such
appointment. The Company may from time to time appoint such Co-Rights Agents as
it may deem necessary or desirable upon ten (10)
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days' prior written notice to the Rights Agent. The Rights Agent shall have no
duty to supervise, and shall in no event be liable for, the acts or omissions of
any such Co-Rights Agent.
SECTION 3. ISSUANCE OF RIGHTS CERTIFICATES.
(a) DISTRIBUTION DATE; RIGHTS CERTIFICATES. Until the
earliest of (i) the close of business on the tenth day after the Stock
Acquisition Date (or, if the tenth day after the Stock Acquisition Date occurs
before the Record Date, the close of business on the Record Date) or (ii) the
close of business on the tenth Business Day (or such later date as the Board
shall determine) after the date that a tender or exchange offer by any Person
(other than the Company, any Subsidiary of the Company, any employee benefit
plan of the Company or of any Subsidiary of the Company, or any Person or entity
organized, appointed or established by the Company for or pursuant to the terms
of any such plan) is first published or sent or given within the meaning of Rule
14d-2(a) of the General Rules and Regulations under the Exchange Act, if upon
consummation thereof, such Person would be the Beneficial Owner of 15% or more
of the shares of Common Stock then outstanding or (iii) the close of business on
the tenth Business Day after the Board determines, in accordance with the
criteria set forth in Section 1(d) of this Agreement, that a Person is an
Adverse Person (the earliest of (i), (ii) or (iii) being herein referred to as
the "Distribution Date"), (x) the Rights will be evidenced (subject to the
provisions of paragraph (b) of this Section 3) by the certificates for the
Common Stock registered in the names of the holders of the Common Stock (which
certificates for Common Stock shall be deemed also to be certificates for
Rights) and not by separate certificates, and (y) the Rights will be
transferable only in connection with the transfer of the underlying shares of
Common Stock (including a transfer to, or redemption by, the Company). The
Company shall give the Rights Agent prompt written notice of the Distribution
Date. As soon as practicable after the Distribution Date and receipt of written
notice of the Distribution Date from the Company, the Rights Agent will, at the
Company's expense, send by first-class, insured, postage prepaid mail, to each
record holder of the Common Stock as of the close of business on the
Distribution Date, at the address of such holder shown on the records of the
Company, one or more right certificates, in substantially the form of Exhibit A
hereto (the "Rights Certificates"), evidencing one Right for each share of
Common Stock so held subject to adjustment as provided herein. In the event that
an adjustment in the number of Rights per share of Common Stock has been made
pursuant to Section 11(p) hereof, at the time of distribution of the Right
Certificates, the Company shall make the necessary and appropriate rounding
adjustments (in accordance with Section 14(a)) so that Rights Certificates
representing only whole numbers of Rights are distributed and cash is paid in
lieu of any fractional Rights. As of and after the Distribution Date, the Rights
will be evidenced solely by such Rights Certificates.
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(b) SUMMARY OF RIGHTS; COMMON STOCK CERTIFICATES. As
promptly as practicable following the Record Date, the Company will send a copy
of a Summary of Rights, in substantially the form attached hereto as Exhibit B
(the "Summary of Rights"), by first-class, postage prepaid mail, to each record
holder of the Common Stock as of the close of business on the Record Date, at
the address of such holder shown on the records of the Company. With respect to
certificates for the Common Stock outstanding as of the Record Date, until the
Distribution Date, the Rights will be evidenced by such certificates for the
Common Stock and the registered holders of the Common Stock shall also be the
registered holders of the associated Rights. Until the earlier of the
Distribution Date or the Expiration Date, the transfer of any certificates
representing shares of Common Stock in respect of which Rights have been issued
shall also constitute the transfer of the Rights associated with such shares of
Common Stock.
(c) LEGEND. Rights shall be issued in respect of all
shares of Common Stock which are issued after the Record Date but prior to the
earlier of the Distribution Date or the Expiration Date. Certificates
representing such shares of Common February 21, 2002 Stock shall also be deemed
to be certificates for Rights, and shall bear the following legend:
"Until the Distribution Date (as defined in the Rights
Agreement referred to below), this certificate also
evidences and entitles the holder hereof to certain Rights
as set forth in the Amended and Restated Rights Agreement
between Parkway Properties, Inc. (the "Company") and
Computershare Investor Services, LLC, as Rights Agent, dated
as of February 21, 2002 (the "Rights Agreement"), the terms
of which are hereby incorporated herein by reference and a
copy of which is on file at the principal 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, as in effect on
the date of mailing, without charge promptly after receipt
of a written request therefor. Under certain circumstances
set forth in the Rights Agreement, Rights issued to, or held
by, any Person who is, was or becomes an Acquiring Person or
an Adverse Person or any Affiliate or Associate thereof (as
such terms are defined in the Rights Agreement), whether
currently held by or on behalf of such Person or by any
subsequent holder, may become null and void."
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With respect to such certificates containing the foregoing legend, until the
earlier of (i) the Distribution Date, (ii) the Expiration Date or (iii) the
Redemption Date, the Rights associated with the Common Stock represented by such
certificates shall be evidenced by such certificates alone and registered
holders of Common Stock shall also be the registered holders of the associated
Rights, and the transfer of any of such certificates shall also constitute the
transfer of the Rights associated with the Common Stock represented by such
certificates.
SECTION 4. FORM OF RIGHTS CERTIFICATES.
(a) FORM; DATE. The Rights Certificates (and the
forms of election to purchase and of assignment to be printed on the reverse
thereof) shall each be substantially in the form set forth in Exhibit A hereto
and may have such marks of identification or designation and such legends,
summaries or endorsements printed thereon as the Company may deem appropriate
and as are not inconsistent with the provisions of this Agreement, or as may be
required to comply with any applicable law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock exchange on which
the Rights may from time to time be listed, or to conform to usage. The Rights
Certificates shall be in a machine printable format and in a form reasonably
satisfactory to the Rights Agent. Subject to the provisions of Section 11 and
Section 22, the Rights Certificates, whenever distributed, shall be dated as of
the Record Date, show the date of countersignature, and on their face shall
entitle the holders thereof to purchase such number of one one-thousandths of a
share of Preferred Stock as shall be set forth therein at the price set forth
therein (such exercise price per one one-thousandth of a share is referred to as
the "Purchase Price"), but the amount and type of securities purchasable upon
the exercise of each Right and the Purchase Price thereof shall be subject to
adjustment as provided herein.
(b) ACQUIRING PERSON OR ADVERSE PERSON LEGEND. Any
Rights Certificate issued pursuant to Section 3(a) or Section 22 that represents
Rights beneficially owned by: (i) an Acquiring Person or Adverse Person or any
Associate or Affiliate of an Acquiring Person or Adverse Person, (ii) a
transferee of an Acquiring Person or Adverse Person (or of any such Associate or
Affiliate) who becomes a transferee after the Acquiring Person or Adverse Person
becomes such, or (iii) a transferee of an Acquiring Person or Adverse Person (or
of any such Associate or Affiliate) who becomes a transferee prior to or
concurrently with the Acquiring Person or Adverse Person becoming such and
receives such Rights pursuant to either (A) a transfer (whether or not for
consideration) from the Acquiring Person or Adverse Person to holders of equity
interests in such Acquiring Person or Adverse Person or to any Person with whom
such Acquiring Person or Adverse Person has any continuing agreement,
arrangement or understanding regarding the transferred Rights or (B) a transfer
which the Disinterested Directors have determined is part of a plan, arrangement
or understanding which has as a primary purpose or effect avoidance of Section
7(e), and any Rights Certificate issued pursuant to Section 6, Section 11 or
Section 22 upon transfer,
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exchange, replacement or adjustment of any other Rights Certificate referred to
in this sentence, shall contain (to the extent feasible) the following legend:
"The Rights represented by this Rights Certificate are or
were beneficially owned by a Person who was or became an
Acquiring Person or Adverse Person or an Affiliate or
Associate of an Acquiring Person or Adverse Person (as such
terms are defined in the Rights Agreement). Accordingly,
this Rights Certificate and the Rights represented hereby
may become null and void in the circumstances specified in
Section 7(e) of such Rights Agreement."
The Company shall instruct the Rights Agent in writing of the Rights which
should be so legended and shall supply the Rights Agent with such legended
Rights Certificates.
SECTION 5. COUNTERSIGNATURE AND REGISTRATION.
(a) SIGNATURES. The Rights Certificates shall be
executed on behalf of the Company by its Chairman of the Board, its President or
any Vice President, either manually or by facsimile signature, and shall have
affixed thereto the Company's seal or a facsimile thereof which shall be
attested by the Secretary or an Assistant Secretary of the Company, either
manually or by facsimile signature. The Rights Certificates shall be manually
countersigned by the Rights Agent and shall not be valid for any purpose unless
so countersigned. In case any officer of the Company who shall have signed any
of the Rights Certificates shall cease to be such officer of the Company before
countersignature by the Rights Agent and issuance and delivery by the Company,
such Rights 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 Rights Certificates had not ceased to be such officer
of the Company; and any Rights Certificates may be signed on behalf of the
Company by any Person who, at the actual date of the execution of such Rights
Certificate, shall be a proper officer of the Company to sign such Rights
Certificate, although at the date of the execution of the Agreement any such
Person was not such an officer.
(b) REGISTRATION AND TRANSFER. Following the
Distribution Date, the Rights Agent will keep or cause to be kept, at its office
or offices designated as the appropriate place for surrender of Rights
Certificates upon exercise or transfer, books for registration and transfer of
the Rights Certificates issued hereunder. Such books shall show the names and
addresses of the respective holders of the Rights Certificates, the number of
Rights evidenced on its face by each of the Rights Certificates and the date of
each of the Rights Certificates.
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SECTION 6. TRANSFER, SPLIT UP, COMBINATION AND EXCHANGE
OF RIGHTS CERTIFICATES; MUTILATED,
DESTROYED, LOST OR STOLEN RIGHTS
CERTIFICATES.
(a) PROCEDURES. Subject to the provisions of Section
4(b), Section 7(e) and Section 14, at any time after the close of business on
the Distribution Date and at or prior to the close of business on the Expiration
Date, any Rights Certificate or Rights Certificates may be transferred, split
up, combined or exchanged for another Rights Certificate or Certificates,
entitling the registered holder to purchase a like number of one one-thousandths
of a share of Preferred Stock (or, following a Triggering Event, Common Stock,
other securities, cash or other assets, as the case may be) as the Rights
Certificate or Certificates surrendered then entitled such holder (or former
holder in the case of a transfer) to purchase. Any registered holder desiring to
transfer, split up, combine or exchange any Rights Certificate or Rights
Certificates shall make such request in writing delivered to the Rights Agent
and shall surrender the Rights Certificate or Rights Certificates to be
transferred, split up, combined or exchanged at the office or offices of the
Rights Agent designated for such purpose. Neither the Rights Agent nor the
Company shall be obligated to take any action whatsoever with respect to the
transfer of any such surrendered Rights Certificate until the registered holder
shall have completed and signed the certificate contained in the form of
assignment on the reverse side of such Rights Certificate and shall have
provided such additional evidence of the identity of the Beneficial Owner (or
former Beneficial Owner) or Affiliates or Associates thereof as the Company
shall reasonably request. Thereupon the Rights Agent shall, subject to Section
4(b), Section 7(e) and Section 14, countersign and deliver to the Person
entitled thereto a Rights Certificate or Rights Certificates, as the case may
be, as so requested. The Company may require payment by the holders of Rights 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 Rights
Certificates.
(b) ISSUANCE OF NEW RIGHTS CERTIFICATE. Upon receipt
by the Company and the Rights Agent of evidence reasonably satisfactory to them
of the loss, theft, destruction or mutilation of a Rights Certificate, and, in
case of loss, theft or destruction, of indemnity or security reasonably
satisfactory to them, and reimbursement to the Company and the Rights Agent of
all reasonable expenses incidental thereto, and upon surrender to the Rights
Agent and cancellation of the Rights Certificate if mutilated, the Company will
execute and deliver a new Rights Certificate of like tenor to the Rights Agent
for countersignature and delivery to the registered owner in lieu of the Rights
Certificate so lost, stolen, destroyed or mutilated.
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SECTION 7. EXERCISE OF RIGHTS; PURCHASE PRICE;
EXPIRATION DATE OF RIGHTS.
(a) EXERCISE. Subject to Section 7(e), the registered
holder of any Rights Certificate may exercise the Rights evidenced thereby
(except as otherwise provided herein including, without limitation, the
restrictions on exercisability set forth in Section 9(c), Section 11(a)(iii),
Section 23(a) and Section 24(b)) in whole or in part at any time after the
Distribution Date upon surrender of the Rights Certificate, with the form of
election to purchase and the certificate on the reverse side thereof duly
executed, to the Rights Agent at the principal office or offices of the Rights
Agent designated for such purpose, together with payment of the aggregate
Purchase Price with respect to the total number of one one-thousandths of a
share of Preferred Stock (or other securities, cash or other assets, as the case
may be) as to which such surrendered Rights are then exercisable, and an amount
equal to any applicable transfer tax, at or prior to the earliest of (i) the
Final Expiration Date, (ii) the Redemption Date, or (iii) the expiration of the
Rights pursuant to Section 13(d) (the earliest of (i), (ii) or (iii) being
herein referred to as the "Expiration Date").
(b) PURCHASE PRICE; FORM OF PAYMENT. The Purchase
Price for each one one-thousandth of a share of Preferred Stock pursuant to the
exercise of a Right shall initially be $45.00, and shall be subject to
adjustment from time to time as provided in Sections 11 and 13(a). The payment
of the Purchase Price and any applicable transfer tax (as such amount may be
reduced pursuant to Section 11(a)(iii)) shall be made in cash, or by certified
check or official bank check payable to the order of the Company or by delivery
of a certificate or certificates (with appropriate stock powers executed in
blank attached thereto) evidencing a number of shares of Common Stock equal to
the then Purchase Price divided by the closing price (as determined pursuant to
Section 11(d)) per share of Common Stock on the Trading Day immediately
preceding the date of such exercise. In the event that the Company is obligated
to issue other securities (including Common Stock) of the Company, pay cash
and/or distribute other property pursuant to Section 11(a) hereof, the Company
will make all arrangements necessary so that such other securities, cash and/or
other property are available for distribution by the Rights Agent, if and when
appropriate.
(c) ACTION BY RIGHTS AGENT. Upon receipt of a Rights
Certificate representing exercisable Rights, with the form of election to
purchase and the certificate duly executed, accompanied by payment with respect
to each Right so exercised in compliance with paragraphs (a) and (b) of this
Section 7, the Rights Agent shall, subject to Section 20(k) hereof, thereupon
promptly (i) (A) requisition from any transfer agent of the shares of Preferred
Stock (or make available, if the Rights Agent is the transfer agent for such
shares) certificates for the total number of one one-thousandths of a share of
Preferred Stock to be purchased and the Company hereby irrevocably authorizes
its transfer agent to comply with all such requests, or (B) if the Company shall
have elected to deposit the total number of shares of
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Preferred Stock issuable upon exercise of the Rights hereunder with a depositary
agent, requisition from the depositary agent depositary receipts representing
such number of one one-thousandths of a share of Preferred Stock as are to be
purchased (in which case certificates for the shares of Preferred Stock
represented by such receipts shall be deposited by the transfer agent with the
depositary agent) and the Company will direct the depositary agent to comply
with such request, (ii) requisition from the Company the amount of cash, if any,
to be paid in lieu of fractional shares in accordance with Section 14, (iii)
after receipt of such certificates or depositary receipts, cause the same to be
delivered to or upon the order of the registered holder of such Rights
Certificate, registered in such name or names as may be designated by such
holder, and (iv) after receipt thereof, deliver such cash, if any, to or upon
the order of the registered holder of such Rights Certificate.
(d) PARTIAL EXERCISE. In case the registered holder
of any Rights Certificate shall exercise less than all the Rights evidenced
thereby, a new Rights Certificate evidencing Rights equivalent to the Rights
remaining unexercised shall be issued by the Rights Agent and delivered to, or
upon the order of, the registered holder of such Rights Certificate, registered
in such name or names as may be designated by such holder, subject to the
provisions of Section 14.
(e) TERMINATION OF ACQUIRING PERSON'S OR ADVERSE
PERSON'S RIGHTS. Notwithstanding anything in this Agreement to the contrary,
from and after the first occurrence of a Flip-in Event, any Rights beneficially
owned by (i) an Acquiring Person or an Adverse Person or an Associate or
Affiliate of an Acquiring Person or Adverse Person, (ii) a transferee of an
Acquiring Person or Adverse Person (or of any such Associate or Affiliate) who
becomes a transferee after the Acquiring Person or Adverse Person becomes such,
or (iii) a transferee of an Acquiring Person or Adverse Person (or of any such
Associate or Affiliate) who becomes a transferee prior to or concurrently with
the Acquiring Person or Adverse Person becoming such and receives such Rights
pursuant to either (A) a transfer (whether or not for consideration) from the
Acquiring Person or Adverse Person to holders of equity interests in such
Acquiring Person or Adverse Person or to any Person with whom the Acquiring
Person or Adverse Person has any continuing agreement, arrangement or
understanding regarding the transferred Rights or (B) a transfer which the
Board, with the concurrence of a majority of the Disinterested Directors, has
determined is part of a plan, arrangement or understanding which has as a
primary purpose or effect the avoidance of this Section 7(e), shall become null
and void without any further action and no holder of such Rights shall have any
rights whatsoever with respect to such Rights, whether under any provision of
this Agreement or otherwise. The Company shall use all reasonable efforts to
insure that the provisions of this Section 7(e) and Section 4(b) are complied
with, but shall have no liability to any holder of Rights Certificates or other
Person as a result of its failure to make any determinations with respect to an
Acquiring Person or Adverse Person or any of their Affiliates, Associates or
transferees
- 14 -
hereunder. The Rights Agent will endeavor to comply with the provisions hereof
to the extent it has received instructions from the Company concerning such
matters.
(f) CERTIFICATE BY REGISTERED HOLDER; EVIDENCE OF
IDENTITY. Notwithstanding anything in this Agreement to the contrary, neither
the Rights Agent nor the Company shall be obligated to undertake any action with
respect to a registered holder upon the occurrence of any purported exercise as
set forth in this Section 7 unless such registered holder shall have (i)
completed and signed the certificate contained in the form of election to
purchase set forth on the reverse side of the Rights Certificate surrendered for
such exercise, and (ii) provided such additional evidence of the identity of the
Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates
thereof as the Company shall reasonably request.
SECTION 8. CANCELLATION OF RIGHTS CERTIFICATES. All Rights
Certificates surrendered for the purpose of exercise, transfer, split
up, combination or exchange shall, if surrendered to the Company or any
of its agents, be delivered to the Rights Agent for cancellation or in
cancelled form, or, if surrendered to the Rights Agent, shall be
cancelled by it, and no Rights 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 Rights Certificate purchased or acquired by the
Company otherwise than upon the exercise thereof. The Rights Agent
shall deliver all cancelled Rights Certificates to the Company.
SECTION 9. RESERVATION AND AVAILABILITY OF CAPITAL STOCK.
(a) RESERVATION OF STOCK. The Company covenants and
agrees that it will cause to be reserved and kept available out of its
authorized and unissued shares of Preferred Stock (and, following the occurrence
of a Triggering Event, out of its authorized and unissued shares of Common Stock
and/or other securities), the number of shares of Preferred Stock (and,
following the occurrence of a Triggering Event, Common Stock and/or other
securities) that, as provided in this Agreement including Section 11(a)(iii),
will be sufficient to permit the exercise in full of all outstanding Rights.
(b) LISTING. If and so long as the shares of
Preferred Stock (and, following the occurrence of a Triggering Event, Common
Stock and/or other securities) issuable and deliverable upon the exercise of the
Rights may be listed on any national securities exchange, the Company shall use
its best efforts to cause, from and after such time as the Rights become
exercisable, all shares reserved for such issuance to be listed on such exchange
upon official notice of issuance upon such exercise.
(c) REGISTRATION. The Company shall use its best
efforts to (i) file, as soon as practicable following the earliest date after
the first occurrence of a Flip-in Event on
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which the consideration to be delivered by the Company upon exercise of the
Rights has been determined in accordance with Section 11(a)(iii), or as soon as
is required by law following the Distribution Date, as the case may be, a
registration statement under the Act, with respect to the securities purchasable
upon exercise of the Rights on an appropriate form, (ii) cause such registration
statement to become effective as soon as practicable after such filing, and
(iii) cause such registration statement to remain effective (with a prospectus
at all times meeting the requirements of the Act) until the earlier of (A) the
date as of which the Rights are no longer exercisable for such securities, or
(B) the Expiration Date. The Company will also take such action as may be
appropriate under, or to ensure compliance with, the securities or "blue sky"
laws of the various states in connection with the exercisability of the Rights.
The Company may temporarily suspend, for a period of time not to exceed ninety
(90) days after the date set forth in clause (i) of the first sentence of this
Section 9(c), the exercisability of the Rights in order to prepare and file such
registration statement and permit it to become effective. Upon any such
suspension, the Company shall issue a public announcement stating that the
exercisability of the Rights has been temporarily suspended, as well as a public
announcement at such time as the suspension is no longer in effect, in each case
with simultaneous written notice to the Rights Agent. In addition, if the
Company shall determine that a registration statement is required following the
Distribution Date, the Company may temporarily suspend the exercisability of the
Rights until such time as a registration statement has been declared effective.
Notwithstanding any provision of this Agreement to the contrary, the Rights
shall not be exercisable in any jurisdiction if the requisite qualification in
such jurisdiction shall not have been obtained, the exercise thereof shall not
be permitted under applicable law or a registration statement shall not have
been declared effective. Unless the Company has given the Rights Agent prior
written instructions that an identified Right or group of Rights may not be
exercised, the Rights Agent may assume that any right exercised is permitted to
be exercised under applicable law and shall have no liability for acting in
reliance upon such assumption.
(d) COVENANT REGARDING STOCK. The Company will take
all such actions as may be necessary to ensure that all one one-thousandths of a
share of Preferred Stock (and, following the occurrence of a Triggering Event,
Common Stock and/or other securities) delivered upon exercise of Rights shall,
at the time of delivery of the certificates for such shares (subject to payment
of the Purchase Price), be duly and validly authorized and issued and fully paid
and nonassessable.
(e) TRANSFER TAXES AND CHARGES. The Company 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 Rights
Certificates and of any certificates for a number of one one-thousandths of a
share of Preferred Stock (or Common Stock 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
- 16 -
of Rights Certificates to a Person other than, or the issuance or delivery of a
number of one one-thousandths of a share of Preferred Stock (or Common Stock
and/or other securities, as the case may be) in respect of a name other than
that of, the registered holder of the Rights Certificates evidencing Rights
surrendered for exercise or to issue or deliver any certificates for a number of
one one-thousandths of a share of Preferred Stock (or Common Stock and/or other
securities, as the case may be) in a name other than that of the registered
holder upon the exercise of any Rights until such tax shall have been paid (any
such tax being payable by the holder of such Rights 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 STOCK RECORD DATE. Each Person in
whose name any certificate for a number of one one-thousandths of a share of
Preferred Stock (or Common Stock 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 such fractional shares of Preferred Stock (or
Common Stock and/or other securities, as the case may be) represented thereby
on, and such certificate shall be dated the date upon which the Rights
Certificate evidencing such Rights was duly surrendered and payment of the
Purchase Price (and all applicable transfer taxes) was made; provided, however,
that if the date of such surrender and payment is a date upon which the
Preferred Stock (or Common Stock and/or other securities, as the case may be)
transfer books of the Company are closed, such Person shall be deemed to have
become the record holder of such shares (fractional or otherwise) on, and such
certificate shall be dated, the next succeeding Business Day on which the
Preferred Stock (or Common Stock and/or other securities, as the case may be)
transfer books of the Company are open. Prior to the exercise of the Rights
evidenced thereby, the holder of a Rights Certificate shall not be entitled to
any rights of a stockholder of the Company with respect to shares for which the
Rights shall be exercisable, including, without limitation, the right to vote,
to receive dividends or other distributions or to exercise any preemptive
rights, and shall not be entitled to receive any notice of any proceedings of
the Company, except as provided herein.
SECTION 11. ADJUSTMENT OF PURCHASE PRICE, NUMBER AND KIND OF
SHARES OR NUMBER OF RIGHTS. The Purchase Price, the number and kind of shares
covered by each Right and the number of Rights outstanding are subject to
adjustment from time to time as provided in this Section 11.
(a) CERTAIN ADJUSTMENTS.
(i) In the event the Company shall at any
time after the date of this Agreement (A) declare a dividend on the Preferred
Stock payable in shares of Preferred Stock, (B) subdivide the outstanding
Preferred Stock, (C) combine the outstanding Preferred Stock into a smaller
number of shares, or (D) issue any shares of its capital stock in a
reclassification of the Preferred Stock (including any such reclassification in
connection with a
- 17 -
consolidation or merger in which the Company is the continuing or surviving
corporation), except as otherwise provided in this Section 11(a) and Section
7(e), the Purchase Price in effect at the time of the record date for such
dividend or of the effective date of such subdivision, combination or
reclassification, and the number and kind of shares of Preferred Stock 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, upon payment of the Purchase Price then in
effect, the aggregate number and kind of shares of Preferred Stock 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 Preferred Stock transfer books of the
Company were open, that such holder 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).
(ii) In the event:
(A) (1) any Acquiring Person or
Adverse Person or any Associate or Affiliate of an Acquiring
Person or Adverse Person, at any time after the date of this
Agreement, directly or indirectly, shall merge into the
Company, enter into a share exchange with the Company, or
otherwise combine with the Company, and the Company shall be
the continuing or surviving corporation of such merger or
combination and the Common Stock of the Company shall remain
outstanding and unchanged, or (2) subject to Section 23, any
Person (other than the Company, any Subsidiary of the Company,
any employee benefit plan of the Company or of any Subsidiary
of the Company, or any Person or entity organized, appointed
or established by the Company for or pursuant to the terms of
any such plan), alone or together with its Affiliates and
Associates, shall, at any time after the Rights Dividend
Declaration Date, become an Acquiring Person or Adverse
Person, or
(B) during such time as there is an
Acquiring Person or Adverse Person, there shall be any
reclassification of securities (including any reverse stock
split) or recapitalization of the Company, or any merger or
consolidation of the Company with any of its Subsidiaries or
any other transaction or series of transactions involving the
Company or any of its Subsidiaries, other than a transaction
or transactions to which the provisions of Section 13(a) apply
(whether or not with or into or otherwise involving an
Acquiring Person or Adverse Person) which has the effect,
directly or indirectly, of increasing by more than 1% the
proportionate share of the outstanding shares of any class of
equity securities of the Company or any of
- 18 -
its subsidiaries which is directly or indirectly
beneficially owned by any Acquiring Person or Adverse Person
or any Associate or Affiliate of any Acquiring Person or
Adverse Person,
then, promptly following the occurrence of any such event described in Section
11(a)(ii)(A) or (B) hereof, proper provision shall be made so that each holder
of a Right (except as provided below and in Section 7(e)) shall thereafter have
the right to receive, upon exercise thereof at the then current Purchase Price
in accordance with the terms of this Agreement, in lieu of a number of one
one-thousandths of a share of Preferred Stock, such number of shares of Common
Stock of the Company as shall equal the result obtained by (x) multiplying the
then current Purchase Price by the then number of one one-thousandths of a share
of Preferred Stock for which a Right was exercisable immediately prior to the
first occurrence of a Flip-over Event, and (y) dividing that product (which,
following such first occurrence, shall thereafter be referred to as the
"Purchase Price" for each Right and for all purposes of this Agreement) by 50%
of the Current Market Price (determined pursuant to Section 11(d)) per share of
Common Stock on the date of such first occurrence (such number of shares, the
"Adjustment Shares").
(iii) In the event that the number of shares
of Common Stock which are authorized by the Company's Charter 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 the foregoing subparagraph (ii) of this Section 11(a), the
Company shall (A) determine the value of the Adjustment Shares issuable upon the
exercise of a Right (the "Current Value"), and (B) with respect to each Right
(subject to Section 7(e) hereof), make adequate provision to substitute for the
Adjustment Shares, upon the exercise of a Right and payment of the applicable
Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) other
equity securities of the Company (including, without limitation, shares, or
units of shares, of preferred stock, such as the Preferred Stock, which the
Board has deemed to have essentially the same value or economic rights as shares
of Common Stock (such shares of preferred stock being referred to as "Common
Stock Equivalents")), (4) debt securities of the Company, (5) other assets, or
(6) any combination of the foregoing, having an aggregate value equal to the
Current Value (less the amount of any reduction in the Purchase Price), where
such aggregate value has been determined by the Board based upon the advice of a
nationally recognized investment banking firm selected by the Board; provided,
however, that if the Company shall not have made adequate provision to deliver
value pursuant to clause (B) above within thirty (30) days following the later
of (x) the first occurrence of a Flip-in Event and (y) the date on which the
Company's right of redemption pursuant to Section 23(a) expires (the later of
(x) and (y) being referred to herein as the "Flip-in Trigger Date"), then the
Company shall be obligated to deliver, upon the surrender for exercise of a
Right and without requiring payment of the Purchase Price, shares of Common
Stock (to the extent available) and then, if necessary, cash, which shares
and/or cash have an aggregate value equal to the Spread. For
- 19 -
purposes of the preceding sentence, the term "Spread" shall mean the excess of
(i) the Current Value over (ii) the Purchase Price. If the Board determines in
good faith that it is likely that sufficient additional shares of Common Stock
could be authorized for issuance upon exercise in full of the Rights, the thirty
(30) day period set forth above may be extended to the extent necessary, but not
more than ninety (90) days after the Flip-in Trigger Date, in order that the
Company may seek stockholder approval for the authorization of such additional
shares (such period, as extended, is herein called the "Substitution Period").
To the extent that action is to be taken pursuant to the first and/or third
sentences of this Section 11(a)(iii), the Company (1) shall provide, subject to
Section 7(e), that such action shall apply uniformly to all outstanding Rights,
and (2) may suspend the exercisability of the Rights until the expiration of the
Substitution Period in order to seek such stockholder approval for such
authorization of additional shares and/or to decide the appropriate form of
distribution to be made pursuant to such first sentence and to determine the
value thereof. In the event of any such suspension, the Company shall issue a
public announcement stating that the exercisability of the Rights has been
temporarily suspended, as well as a public announcement at such time as the
suspension is no longer in effect. For purposes of this Section 11(a)(iii), the
value of each Adjustment Share shall be the Current Market Price per share of
the Common Stock on the Flip-in Trigger Date and the per share or per unit value
of any Common Stock Equivalent shall be deemed to equal the Current Market Price
per share of the Common Stock on such date.
(iv) If the rules of the national securities
exchange, registered as such pursuant to Section 6 of the Exchange Act, or of
the national securities association, registered as such pursuant to Section 15A
of the Exchange Act, on which the Common Stock is principally traded or quoted
would prohibit such exchange or association from listing or continuing to list,
or from authorizing for or continuing quotation and/or transaction reporting
through an inter-dealer quotation system, the Common Stock or other equity
securities of the Company if the Rights were to be exercised for shares of
Common Stock in accordance with subparagraph (ii) of this Section 11(a) because
such issuance would nullify, restrict or disparately reduce the per share voting
rights of holders of Common Stock, the Company shall: (A) determine the Spread,
and (B) with respect to each Right, make adequate provision to substitute for
the Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash,
(2) a reduction in the Purchase Price, (3) equity securities of the Company,
including, without limitation, Common Stock Equivalents, other than securities
which would have the effect of nullifying, restricting or disparately reducing
the per share voting rights of holders of Common Stock, (4) debt securities of
the Company, (5) other assets, or (6) any combination of the foregoing, having
an aggregate value equal to the Current Value, where such aggregate value has
been determined by the Board based upon the advice of a recognized investment
banking firm selected by the Board; provided, however, if the Company shall not
have made adequate provision to deliver value pursuant to clause (B) above
within thirty (30) calendar days following the Flip-in Trigger Date, then the
Company shall be obligated to deliver, upon the surrender for exercise of a
Right and without requiring payment of the Purchase Price, cash
- 20 -
having an aggregate value equal to the Spread. To the extent that the Company
determines that some action need be taken pursuant to the first sentence of this
Section 11(a)(iv), the Company (x) shall provide, subject to Section 7(e), that
such action shall apply uniformly to all outstanding rights and (y) may suspend
the exercisability of the Rights, but not longer than ninety (90) calendar days
after the Flip-in Trigger Date, in order to decide the appropriate form of
distribution to be made pursuant to such first sentence and to determine the
value thereof. In the event of any such suspension, the Company shall issue a
public announcement stating that the exercisability of the Rights has been
temporarily suspended, as well as a public announcement at such time as the
suspension is no longer in effect. For purposes of this Section 11(a)(iv), the
value of the Common Stock shall be the Current Market Price per share of the
Common Stock on the Flip-in Trigger Date and the value of any Common Stock
Equivalent shall be deemed to have the same value as the Common Stock on such
date.
(b) PURCHASE PRICE ADJUSTMENT--PREFERRED STOCK. In
case the Company shall fix a record date for the issuance of rights, options or
warrants to all holders of Preferred Stock entitling them to subscribe for or
purchase (for a period expiring within forty-five (45) calendar days after such
record date) Preferred Stock (or shares having the same rights, privileges and
preferences as the shares of Preferred Stock ("equivalent preferred stock")) or
securities convertible into Preferred Stock or equivalent preferred stock at a
price per share of Preferred Stock or per share of equivalent preferred stock
(or having a conversion price per share, if a security convertible into
Preferred Stock or equivalent preferred stock) less than the Current Market
Price (as determined pursuant to Section 11(d) hereof) per share of Preferred
Stock on such record date, the Purchase Price to be in effect after such record
date shall be determined by multiplying the Purchase Price in effect immediately
prior to such record date by a fraction, the numerator of which shall be the
number of shares of Preferred Stock outstanding on such record date, plus the
number of shares of Preferred Stock which the aggregate offering price of the
total number of shares of Preferred Stock and/or equivalent preferred stock so
to be offered (and/or the aggregate initial conversion 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 shares of Preferred Stock
outstanding on such record date, plus the number of additional shares of
Preferred Stock and/or equivalent preferred stock to be offered for subscription
or purchase (or into which the convertible securities so to be offered are
initially convertible). In case such subscription 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,
whose determination shall be described in a statement filed with the Rights
Agent and shall be binding on the Rights Agent and the holders of the Rights.
Shares of Preferred Stock owned by or held for the account of the Company shall
not be deemed outstanding for the purpose of any such computation. Such
adjustment shall be made successively whenever such a record date is fixed, and
in the event that such rights or warrants are not so issued, the Purchase Price
shall be adjusted to be the Purchase Price which would then be in effect if such
record date had not been fixed.
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(c) PURCHASE PRICE ADJUSTMENT--DISTRIBUTION OTHER
THAN PREFERRED STOCK. In case the Company shall fix a record date for a
distribution to all holders of Preferred Stock (including any such distribution
made in connection with a consolidation or merger in which the Company is the
continuing corporation) of evidences of indebtedness, cash (other than a regular
quarterly cash dividend out of the earnings or retained earnings of the
Company), assets (other than a dividend payable in Preferred Stock, but
including any dividend payable in stock other than Preferred Stock) or
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 Market Price (as
determined pursuant to Section 11(d)) per share of Preferred Stock on such
record date, less the fair market value (as determined in good faith by the
Board, whose determination shall be described in a statement filed with the
Rights Agent) of the portion of the cash, assets or evidences of indebtedness so
to be distributed or of such subscription rights or warrants applicable to a
share of Preferred Stock and the denominator of which shall be such Current
Market Price per share of Preferred Stock (as determined pursuant to Section
11(d)(ii)). 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 be adjusted to be the Purchase Price which would have been
in effect if such record date had not been fixed.
(d) CURRENT MARKET PRICE.
(i) For the purpose of any computation
hereunder, other than computations made pursuant to Section 11(a)(iii), the
"Current Market Price" per share of Common Stock on any date shall be deemed to
be the average of the daily closing prices per share of such Common Stock for
the thirty (30) consecutive Trading Days immediately prior to such date, and for
purposes of computations made pursuant to Section 11(a)(iii) hereof, the
"Current Market Price" per share of Common Stock on any date shall be deemed to
be the average of the daily closing prices per share of such Common Stock for
the ten (10) consecutive Trading Days immediately following such date; provided,
however, that in the event that the Current Market Price per share of the Common
Stock is determined during a period following the announcement by the issuer of
such Common Stock of (A) a dividend or distribution on such Common Stock payable
in shares of such Common Stock or securities convertible into shares of such
Common Stock (other than the Rights), or (B) any subdivision, combination or
reclassification of such Common Stock, and the ex-dividend date for such
dividend or distribution, or the record date for such subdivision, combination
or reclassification shall not have occurred prior to the commencement of the
requisite thirty (30) Trading Day or ten (10) Trading Day period, as set forth
above, then, and in each such case, the Current Market Price shall be properly
adjusted to take into account ex-dividend trading. 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
- 22 -
case as reported in the principal consolidated transaction reporting system with
respect to securities listed or admitted to trading on the New York Stock
Exchange or, if the shares of Common Stock are not listed or admitted to trading
on the New York Stock Exchange, as reported in the principal consolidated
transaction reporting system with respect to securities listed on the principal
national securities exchange on which the shares of Common Stock are listed or
admitted to trading or, if the shares of Common Stock are not listed or admitted
to trading on any national securities exchange, the last quoted price or, if not
so quoted, the average of the high bid and low asked prices in the
over-the-counter market, as reported by the National Association of Securities
Dealers, Inc. Automated Quotation System or such other system then in use, or,
if on any such date the shares of Common Stock 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 Stock selected by the
Board. If on any such date no market maker is making a market in the Common
Stock, the fair value of such shares on such date as determined in good faith by
the Board shall be used. The term "Trading Day" shall mean a day on which the
principal national securities exchange on which the shares of Common Stock are
listed or admitted to trading is open for the transaction of business or, if the
shares of Common Stock are not listed or admitted to trading on any national
securities exchange, a Business Day. If the Common Stock is not publicly held or
not so listed or traded, Current Market Price per share shall mean the fair
value per share as determined in good faith by the Board, whose determination
shall be described in a statement filed with the Rights Agent and shall be
conclusive for all purposes.
(ii) For the purpose of any computation
hereunder, the "Current Market Price" per share of Preferred Stock shall be
determined in the same manner as set forth above for the Common Stock in clause
(i) of this Section 11(d) (other than the last sentence thereof). If the Current
Market Price per share of Preferred Stock cannot be determined in the manner
provided above or if the Preferred Stock is not publicly held or listed or
traded in a manner described in clause (i) of this Section 11(d), the Current
Market Price per share of Preferred Stock shall be conclusively deemed to be an
amount equal to 1,000 (as such number may be appropriately adjusted for such
events as stock splits, stock dividends and recapitalizations with respect to
the Common Stock occurring after the date of this Agreement) multiplied by the
Current Market Price per share of the Common Stock. If neither the Common Stock
nor the Preferred Stock is publicly held or so listed or traded, Current Market
Price per share of the Preferred Stock shall mean the fair value per share as
determined in good faith by the Board, whose determination shall be described in
a statement filed with the Rights Agent and shall be conclusive for all
purposes.
(e) PURCHASE PRICE ADJUSTMENT THRESHOLD. Anything
herein to the contrary notwithstanding, no adjustment in the Purchase Price
shall be required unless such adjustment would require an increase or decrease
of at least one percent (1%) in the Purchase Price; provided, however, that any
adjustments which by reason of this Section 11(e) are not
- 23 -
required to be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this Section 11 shall be made to
the nearest cent or to the nearest ten-thousandth of a share of Common Stock or
other share or one-millionth of a share of Preferred Stock, as the case may be.
Notwithstanding the first sentence of this Section 11(e), any adjustment
required by this Section 11 shall be made no later than the earlier of (i) three
(3) years from the date of the transaction which mandates such adjustment, or
(ii) the Expiration Date.
(f) PURCHASE PRICE ADJUSTMENT--EQUIVALENT SHARES. If
as a result of an adjustment made pursuant to Section 11(a)(ii) or Section 13(a)
hereof, the holder of any Right thereafter exercised shall become entitled to
receive any shares of capital stock other than Preferred Stock, thereafter the
number of such other shares so receivable upon exercise of any Right and the
Purchase Price thereof shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the provisions with
respect to the Preferred Stock contained in Sections 11(a), (b), (c), (e), (g),
(h), (i), (j), (k) and (m), and the provisions of Sections 7, 9, 10, 13 and 14
hereof with respect to the Preferred Stock shall apply on like terms to any such
other shares.
(g) POST-ADJUSTMENT RIGHTS ISSUANCES. All Rights
originally issued by the Company subsequent to any adjustment made to the
Purchase Price hereunder shall evidence the right to purchase, at the adjusted
Purchase Price, the number of one one-thousandths of a share of Preferred Stock
purchasable from time to time hereunder upon exercise of the Rights, all subject
to further adjustment as provided herein.
(h) PREFERRED STOCK ANTI-DILUTION. Unless the Company
shall have exercised its election as provided in Section 11(i), upon each
adjustment of the Purchase Price as a result of the calculations made in
Sections 11(b) and (c), each Right outstanding immediately prior to the making
of such adjustment shall thereafter evidence the right to purchase, at the
adjusted Purchase Price, that number of one one-thousandths of a share of
Preferred Stock (calculated to the nearest one-millionth) obtained by (i)
multiplying (x) the number of one two-thousandths of a share covered by a Right
immediately prior to this adjustment, by (y) the Purchase Price in effect
immediately prior to such adjustment of the Purchase Price, and (ii) dividing
the product so obtained by the Purchase Price in effect immediately after such
adjustment of the Purchase Price.
(i) ADJUSTMENT OF NUMBER OF RIGHTS. The Company may
elect on or after the date of any adjustment of the Purchase Price to adjust the
number of Rights, in lieu of any adjustment in the number of one one-thousandths
of a share of Preferred Stock purchasable upon the exercise of a Right. Each of
the Rights outstanding after the adjustment in the number of Rights shall be
exercisable for the number of one one-thousandths of a share of Preferred Stock
for which a Right was exercisable immediately prior to such adjustment.
- 24 -
Each Right held of record prior to such adjustment of the number of Rights shall
become that number of Rights (calculated to the nearest one-ten-thousandth)
obtained by dividing the Purchase Price in effect immediately prior to
adjustment of the Purchase Price by the Purchase Price in effect immediately
after adjustment of the Purchase Price. The Company shall make a public
announcement of its election to adjust the number of Rights, indicating the
record date for the adjustment, and, if known at the time, the amount of the
adjustment to be made. This record date may be the date on which the Purchase
Price is adjusted or any day thereafter, but, if the Rights Certificates have
been issued, shall be at least ten (10) calendar days later than the date of the
public announcement. If Rights 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 Rights Certificates on such record date Rights Certificates evidencing,
subject to Section 14, the additional Rights to which such holders shall be
entitled as a result of such adjustment, or, at the option of the Company, shall
cause to be distributed to such holders of record in substitution and
replacement for the Rights Certificates held by such holders prior to the date
of adjustment, and upon surrender thereof, if required by the Company, new
Rights Certificates evidencing all the Rights to which such holders shall be
entitled after such adjustment. Rights 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 Rights Certificates on the
record date specified in the public announcement.
(j) FORM OF RIGHTS CERTIFICATES. Irrespective of any
adjustment or change in the Purchase Price or the number of one one-thousandths
of a share of Preferred Stock issuable upon the exercise of the Rights, the
Rights Certificates theretofore and thereafter issued may continue to express
the Purchase Price per one one-thousandth of a share and the number of one
one-thousandths of a share which were expressed in the initial Rights
Certificates issued hereunder.
(k) ADJUSTMENT BELOW PAR OR STATED VALUE. Before
taking any action that would cause an adjustment reducing the Purchase Price
below the then par or stated value, if any, of the number of one one-thousandths
of a share of Preferred Stock issuable upon exercise of the Rights, the Company
shall take any corporate action which may, in the opinion of its counsel, be
necessary in order that the Company may validly and legally issue fully paid and
nonassessable such number of one one-thousandths of a share of Preferred Stock
at such adjusted Purchase Price.
(l) ADJUSTMENT EFFECTIVE AS OF EFFECTIVE DATE. 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
- 25 -
one one-thousandths of a share of Preferred Stock and other capital stock or
securities of the Company, if any, issuable upon such exercise over and above
the number of one one-thousandths of a share of Preferred Stock and other
capital stock or securities of the Company, if any, issuable upon such exercise
on the basis of the Purchase Price in effect prior to such adjustment; provided,
however, that the Company shall deliver to such holder a due xxxx or other
appropriate instrument evidencing such holder's right to receive such additional
shares (fractional or otherwise) or securities upon the occurrence of the event
requiring such adjustment.
(m) TAX ADJUSTMENTS. Anything in this Section 11 to
the contrary notwithstanding, the Company shall be entitled to make such
reductions in the Purchase Price, in addition to those adjustments expressly
required by this Section 11, as and to the extent that in its good faith
judgment the Board shall determine to be advisable in order that any (i)
consolidation or subdivision of the Preferred Stock, (ii) issuance wholly for
cash of any shares of Preferred Stock at less than the Current Market Price,
(iii) issuance wholly for cash of shares of Preferred Stock or securities which
by their terms are convertible into or exchangeable for shares of Preferred
Stock, (iv) stock dividends or (v) issuance of rights, options or warrants
referred to in this Section 11, hereafter made by the Company to holders of its
Preferred Stock shall not be taxable to such stockholders.
(n) RESTRICTIONS ON CERTAIN TRANSACTIONS. The Company
will not, at any time after the Distribution Date, (i) consolidate with any
other Person (other than a Subsidiary of the Company in a transaction which
complies with Section 11(o)), (ii) merge with or into 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 related transactions, assets, cash
flow or earning power aggregating more than 50% of the assets, cash flow 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 (x)
at the time of or immediately after such consolidation, merger or sale there are
any rights, warrants or other instruments or securities outstanding or
agreements in effect which would substantially diminish or otherwise eliminate
the benefits intended to be afforded by the Rights or (y) prior to,
simultaneously with or immediately after such consolidation, merger or sale, the
stockholders of the Person who constitutes, or would constitute, the "Principal
Party" for purposes of Section 13(a) shall have received a distribution of
Rights previously owned by such Person or any of its Affiliates and Associates.
(o) ADDITIONAL RESTRICTIONS TO PROTECT BENEFITS OF
RIGHTS. After the Distribution Date, the Company will not, except as permitted
by Section 23 or Section 26 hereof, take (or permit any Subsidiary to take) any
action if at the time such action is taken it is
- 26 -
reasonably foreseeable that such action will diminish substantially or otherwise
eliminate the benefits intended to be afforded by the Rights.
(p) COMMON STOCK ADJUSTMENTS. Anything in this
Agreement to the contrary notwithstanding, in the event that the Company shall
at any time after the Rights Dividend Declaration Date and prior to the
Distribution Date (i) declare a dividend on the outstanding shares of Common
Stock payable in shares of Common Stock, (ii) subdivide the outstanding shares
of Common Stock, or (iii) combine the outstanding shares of Common Stock into a
smaller number of shares, the number of Rights associated with each share of
Common Stock 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 share of Common Stock following any such
event shall equal the result obtained by multiplying the number of Rights
associated with each share of Common Stock immediately prior to such event by a
fraction the numerator which shall be the total number of shares of Common Stock
outstanding immediately prior to the occurrence of the event and the denominator
of which shall be the total number of shares of Common Stock outstanding
immediately following the occurrence of such event. The adjustments provided for
in this Section 11(p) shall not be made successively whenever such a dividend is
declared or paid or such subdivision, combination or consolidation is effected.
SECTION 12. CERTIFICATE OF ADJUSTED PURCHASE PRICE OR NUMBER
OF SHARES. Whenever an adjustment is made as provided in Section 11 and Section
13, the Company shall (a) promptly prepare a certificate setting forth such
adjustment and a brief statement of the facts accounting for such adjustment,
(b) promptly file with the Rights Agent, and with each transfer agent for the
Preferred Stock and the Common Stock, a copy of such certificate, and (c) mail a
brief summary thereof to each holder of a Rights Certificate (or, if prior to
the Distribution Date, to each holder of a certificate representing shares of
Common Stock) in accordance with Section 25. The Rights Agent shall be fully
protected in relying on any such certificate and on any adjustment therein
contained, and shall not be obliged or responsible for calculating any
adjustment, and shall not be deemed to have knowledge of such adjustment unless
and until it shall have received such certificate.
SECTION 13. CONSOLIDATION, MERGER OR SALE OR TRANSFER OF
ASSETS, CASH FLOW OR EARNING POWER.
(a) FLIP-OVER EVENT. In the event that, following the
Stock Acquisition Date, directly or indirectly, (x) the Company shall
consolidate with, or merge with and into, any other Person (other than a
Subsidiary of the Company in a transaction which complies with Section 11(o)),
and the Company shall not be the continuing or surviving corporation of such
consolidation or merger, (y) any Person (other than a Subsidiary of the Company
in a transaction which complies with Section 11(o)) shall consolidate with, or
merge
- 27 -
with or into, the Company, and the Company shall be the continuing or surviving
corporation of such consolidation or merger and, in connection with such
consolidation or merger, all or part of the outstanding shares of Common Stock
shall be changed into or exchanged for stock or other securities of any other
Person or cash or any other property, or (z) the Company shall sell or otherwise
transfer (or one or more of its Subsidiaries shall sell or otherwise transfer),
in one transaction or a series of related transactions, assets, cash flow or
earning power aggregating more than 50% of the assets or earning power of the
Company and its Subsidiaries (taken as a whole) to any Person or Persons (other
than the Company or any Subsidiary of the Company in one or more transactions
each of which complies with Section 11(o)), then, and in each such case (except
as may be contemplated by Section 13(d)), proper provision shall be made so
that: (i) each holder of a Right, except as provided in Section 7(e) hereof,
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, non-assessable and freely
tradeable shares of Common Stock of the Principal Party (as such term is
hereinafter defined), not subject to any liens, encumbrances, rights of first
refusal or other adverse claims, as shall be equal to the result obtained by (1)
multiplying the then current Purchase Price by the number of one one-thousandths
of a share of Preferred Stock for which a Right is exercisable immediately prior
to the first occurrence of a Flip-over Event (or, if a Flip-in Event has
occurred prior to the first occurrence of a Flip-over Event, multiplying the
number of such one one-thousandths of a share for which a Right was exercisable
immediately prior to the first occurrence of a Flip-in Event by the Purchase
Price in effect immediately prior to such first occurrence), and dividing that
product (which, following the first occurrence of a Flip-over Event, shall be
referred to as the "Purchase Price" for each Right and for all purposes of this
Agreement) by (2) 50% of the Current Market Price (determined pursuant to
Section 11(d)(i)) per share of the Common Stock of such Principal Party on the
date of consummation of such Flip-over Event; (ii) such Principal Party shall
thereafter be liable for, and shall assume, by virtue of such Flip-over Event,
all the obligations and duties of the Company pursuant to this Agreement; (iii)
the term "Company" shall thereafter be deemed to refer to such Principal Party,
it being specifically intended that the provisions of Section 11 shall apply
only to such Principal Party following the first occurrence of a Flip-over
Event; (iv) such Principal Party shall take such steps (including, but not
limited to, the reservation of a sufficient number of shares of its Common
Stock) in connection with the consummation of any such transaction as may be
necessary to assure that the provisions hereof shall thereafter be applicable,
as nearly as reasonably may be, in relation to its shares of Common Stock
thereafter deliverable upon the exercise of the Rights; and (v) the provisions
of Section 11(a)(ii) hereof shall be of no effect following the first occurrence
of any Flip-over Event.
(b) PRINCIPAL PARTY. "Principal Party" shall mean
- 28 -
(i) in the case of any transaction
described in clause (x) or (y) of the first sentence of
Section 13(a), the Person that is the issuer of any
securities into which shares of Common Stock of the Company
are converted in such merger or consolidation, and if no
securities are so issued, the Person that is the other party
to such merger or consolidation; and
(ii) in the case of any transaction
described in clause (z) of the first sentence of Section
13(a), the Person that is the party receiving the greatest
portion of the assets, cash flow or earning power
transferred pursuant to such transaction or transactions;
provided, however, that in any such case, (1) if the Common Stock of such Person
is not at such time and has not been continuously over the preceding twelve (12)
month period registered under Section 12 of the Exchange Act, and such Person is
a direct or indirect Subsidiary of another Person the Common Stock of which is
and has been so registered, "Principal Party" shall refer to such other Person;
and (2) in case such Person is a Subsidiary, directly or indirectly, of more
than one Person, the Common Stocks of two or more of which are and have been so
registered, "Principal Party" shall refer to whichever of such Persons is the
issuer of the Common Stock having the greatest aggregate market value.
(c) CONDITIONS TO CONSUMMATION OF FLIP-OVER EVENT.
The Company shall not consummate any Flip-over Event unless the Principal Party
shall have a sufficient number of authorized shares of its Common Stock which
have not been issued or reserved for issuance to permit the exercise in full of
the Rights in accordance with this Section 13 and unless prior thereto the
Company and such Principal Party shall have executed and delivered to the Rights
Agent a supplemental agreement providing for the terms set forth in paragraphs
(a) and (b) of this Section 13 and further providing that, as soon as
practicable after the date of any consolidation, merger or sale of assets, cash
flow or earnings power mentioned in paragraph (a) of this Section 13, the
Principal Party will
(i) prepare and file a registration
statement under the Act, with respect to the Rights and the
securities purchasable upon exercise of the Rights on an
appropriate form, and will use its best efforts to cause
such registration statement to (A) become effective as soon
as practicable after such filing and (B) remain effective
(with a prospectus at all times meeting the requirements of
the Act) until the Expiration Date; and
(ii) deliver to holders of the Rights
historical financial statements for the Principal Party and
each of its Affiliates which comply in all respects with the
requirements for registration on Form 10 under the Exchange
Act.
- 29 -
The provisions of this Section 13 shall similarly apply to successive mergers,
consolidations or sales or other transfers (including the types of transactions
described in clauses (x), (y) and (z) of the first sentence of Section 13(a),
except that, in lieu of "Company", substitute the Person which is then the
successor to the obligations and duties of the Company under this Agreement). In
the event that a Flip-over Event shall occur at any time after the occurrence of
a Flip-over Event, the Rights which have not theretofore been exercised shall
thereafter become exercisable in the manner described in Section 13(a).
(d) CERTAIN EXCEPTIONS. Notwithstanding anything in
this Agreement to the contrary, Section 13 shall not be applicable to a
transaction described in clauses (x) and (y) of the first sentence of Section
13(a) if (i) such transaction is consummated with a Person or Persons who
acquired shares of Common Stock pursuant to a tender offer or exchange offer for
all outstanding shares of Common Stock which complies with the provisions of
Section 11(a)(ii) hereof (or a wholly owned subsidiary of any such Person or
Persons), (ii) the price per share of Common Stock offered in such transaction
is not less than the price per share of Common Stock paid to all holders of
shares of Common Stock whose shares were purchased pursuant to such tender offer
or exchange offer and (iii) the form of consideration being offered to the
remaining holders of shares of Common Stock pursuant to such transaction is the
same as the form of consideration paid pursuant to such tender offer or exchange
offer. Upon consummation of any such transaction contemplated by this Section
13(d), all Rights hereunder shall expire.
(e) CERTAIN PROTECTIONS FOR RIGHTS AGENT. In no event
shall the Rights Agent have any liability in respect of any such Principal Party
transactions, including, without limitation, the propriety thereof. The Rights
Agent may rely and be fully protected in relying upon a certificate of the
Company stating that the provisions of this Section 13 have been fulfilled.
Notwithstanding anything in this Agreement to the contrary, the prior written
consent of the Rights Agent must be obtained in connection with any supplemental
agreement which alters the rights or duties of the Rights Agent.
SECTION 14. FRACTIONAL RIGHTS AND FRACTIONAL SHARES.
(a) FRACTIONAL RIGHTS. The Company shall not be
required to issue fractions of Rights, except prior to the Distribution Date as
provided in Section 11(p), or to distribute Rights Certificates which evidence
fractional Rights. In lieu of such fractional Rights, there shall be paid to the
registered holders of the Rights 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 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 of
the Rights for any day shall be the last sale price, regular way,
- 30 -
or, in case no such sale takes place on such day, the average of the closing bid
and asked prices, regular way, in either case as reported in the principal
consolidated transaction reporting system with respect to securities listed or
admitted to trading on the New York Stock Exchange or, if the Rights are not
listed or admitted to trading on the New York Stock Exchange, as reported in the
principal consolidated transaction reporting system with respect to securities
listed on the principal national securities exchange on which the Rights are
listed or admitted to trading, or if the Rights are not listed or admitted to
trading on any national securities exchange, the last quoted price or, if not so
quoted, the average of the high bid and low asked prices in the over-the-counter
market, as reported by NASDAQ or such other system then in use or, if on any
such date the Rights are not quoted by any such organization, the average of the
closing bid and asked prices as furnished by a professional market maker making
a market in the Rights selected by the Board. If on any such date no such market
maker is making a market in the Rights the fair value of the Rights on such date
as determined in good faith by the Board shall be used.
(b) FRACTIONAL SHARES OF PREFERRED STOCK. The Company
shall not be required to issue fractions of shares of Preferred Stock (other
than fractions which are integral multiples of one one-thousandth of a share of
Preferred Stock) upon exercise of the Rights or to distribute certificates which
evidence fractional shares of Preferred Stock (other than fractions which are
integral multiples of one one-thousandth of a share of Preferred Stock). In lieu
of fractional shares of Preferred Stock that are not integral multiples of one
one-thousandth of a share of Preferred Stock, the Company may pay to the
registered holders of Rights 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 one-thousandth of a share of Preferred Stock. For purposes
of this Section 14(b), the current market value of one one-thousandth of a share
of Preferred Stock shall be one one-thousandth of the closing price of a share
of Preferred Stock (as determined pursuant to Section 11(d)(ii)) for the Trading
Day immediately prior to the date of such exercise.
(c) FRACTIONAL SHARES OF COMMON STOCK. Following the
occurrence of a Triggering Event, the Company shall not be required to issue
fractions of shares of Common Stock upon exercise of the Rights or to distribute
certificates which evidence fractional shares of Common Stock. In lieu of
fractional shares of Common Stock, the Company may pay to the registered holders
of Rights 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
(1) share of Common Stock. For purposes of this Section 14(c), the current
market value of one share of Common Stock shall be the closing price of one
share of Common Stock (as determined pursuant to Section 11(d)(i)) for the
Trading Day immediately prior to the date of such exercise.
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(d) WAIVER OF FRACTIONAL RIGHTS AND SHARES. 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.
SECTION 15. RIGHTS OF ACTION. All rights of action in respect
of this Agreement are vested in the respective registered holders of the Rights
Certificates (and, prior to the Distribution Date, the registered holders of the
Common Stock); and any registered holder of any Rights Certificate (or, prior to
the Distribution Date, of the Common Stock), without the consent of the Rights
Agent or of the holder of any other Rights Certificate (or, prior to the
Distribution Date, of the Common Stock), 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 Rights Certificate in the manner provided
in such Rights Certificate and in this Agreement. Without limiting the foregoing
or any remedies available to the holders of Rights, it is specifically
acknowledged that the holders of Rights would not have an adequate remedy at law
for any breach of this Agreement and shall be entitled to specific performance
of the obligations hereunder and injunctive relief against actual or threatened
violations of the obligations hereunder of any Person subject to this Agreement.
SECTION 16. AGREEMENT OF RIGHTS HOLDERS. Every holder of a
Right by accepting the same consents and agrees with the Company and the Rights
Agent and with every other holder of a Right that:
(a) prior to the Distribution Date, the Rights will
be transferable only in connection with the transfer of Common Stock;
(b) after the Distribution Date, the Rights
Certificates are transferable only on the registry books of the Rights Agent if
surrendered at the principal office or offices of the Rights Agent designated
for such purposes, duly endorsed or accompanied by a proper instrument of
transfer and with the appropriate forms and certificates fully executed;
(c) subject to Section 6(a) and Section 7(f), the
Company and the Rights Agent may deem and treat the Person in whose name a
Rights Certificate (or, prior to the Distribution Date, the associated Common
Stock certificate) is registered as the absolute owner thereof and of the Rights
evidenced thereby (notwithstanding any notations of ownership or writing on the
Rights Certificates or the associated Common Stock certificate made by anyone
other than the Company or the Rights Agent) for all purposes whatsoever, and
neither the Company nor the Rights Agent, subject to the last sentence of
Section 7(e), shall be required to be affected by any notice to the contrary;
and
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(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 its best
efforts to have any such order, decree or ruling lifted or otherwise overturned
as soon as possible.
SECTION 17. RIGHTS CERTIFICATE HOLDER NOT DEEMED A
STOCKHOLDER. No holder, as such, of any Rights Certificate shall be entitled to
vote, receive dividends or be deemed for any purpose the holder of the number of
one one-thousandths of a share of Preferred Stock or any other securities of the
Company which may at any time be issuable on the exercise of the Rights
represented thereby, nor shall anything contained herein or in any Rights
Certificate be construed to confer upon the holder of any Rights Certificate, as
such, any of the rights of a stockholder of the Company or any right to vote for
the election of directors or upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate action, or to
receive notice of meetings or other actions affecting stockholders (except as
provided in Section 24), or to receive dividends or subscription rights, or
otherwise, until the Right or Rights evidenced by such Rights Certificate shall
have been exercised in accordance with the provisions hereof.
SECTION 18. CONCERNING THE RIGHTS AGENT.
(a) COMPENSATION. The Company agrees to pay to the
Rights Agent such compensation as shall be agreed to in writing between the
Company and the Rights Agent 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 disbursements 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 and its
affiliates and each of their directors, officers, employees and agents
(collectively, the "Indemnified Parties") for, and to hold them harmless
against, any damage, loss, liability, cost or expense, incurred without gross
negligence, bad faith or willful misconduct on the part of the Indemnified
Parties, for anything done or omitted by the Indemnified Parties in connection
with the acceptance and administration of this Agreement, including the costs
and expenses of defending against any claim or demand (whether asserted by the
Company, any holder of a Rights Certificate, or any other Person) of liability
in the premises. The costs and expenses of enforcing this right of
indemnification shall also be paid by the Company.
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The provisions of this Section 18(a) shall survive the
expiration of the Rights and the termination of this Agreement.
(b) LIMITS ON DAMAGES. Notwithstanding anything in
this Agreement to the contrary, in no event shall the Rights Agent be liable for
special, indirect or consequential loss or damage of any kind whatsoever
(including but not limited to lost profits), even if the Rights Agent has been
advised of the likelihood of such loss or damage and regardless of the form of
the action.
(c) RELIANCE. 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 Rights Certificate or certificate for Common Stock or for
other securities of the Company, instrument of assignment or transfer, power of
attorney, endorsement, affidavit, letter, notice, instruction, direction,
consent, certificate, statement, or other paper or document believed by it to be
genuine and to be signed and executed by the proper Person or Persons, and,
where necessary, to be verified or acknowledged.
SECTION 19. MERGER OR CONSOLIDATION OR CHANGE OF NAME OF
RIGHTS AGENT.
(a) SUCCESSOR. Any corporation into which the Rights
Agent or any successor Rights Agent may be merged or with which it may be
consolidated, or any corporation resulting from any merger or consolidation to
which the Rights Agent or any successor Rights Agent shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Rights Agent or any successor Rights Agent, shall be the successor to the
Rights Agent under this Agreement without the execution or filing of any paper
or any further act on the part of any of the parties hereto; provided, however,
that such corporation would be eligible for appointment as a successor Rights
Agent under the provisions of Section 21. In case at the time such successor
Rights Agent shall succeed to the agency created by this Agreement, any of the
Rights Certificates shall have been countersigned but not delivered, any such
successor Rights Agent may adopt the countersignature of a predecessor Rights
Agent and deliver such Rights Certificates so countersigned; and in case at that
time any of the Rights Certificates shall not have been countersigned, any
successor Rights Agent may countersign such Rights Certificates either in the
name of the predecessor or in the name of the successor Rights Agent; and in all
such cases such Rights Certificates shall have the full force provided in the
Rights Certificates and in this Agreement.
(b) PRIOR COUNTERSIGNATURES. In case at any time the
name of the Rights Agent shall be changed and at such time any of the Rights
Certificates shall have been countersigned but not delivered, the Rights Agent
may adopt the countersignature under its
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prior name and deliver Rights Certificates so countersigned; and in case at that
time any of the Rights Certificates shall not have been countersigned, the
Rights Agent may countersign such Rights Certificates either in its prior name
or in its changed name; and in all such cases such Rights Certificates shall
have the full force provided in the Rights Certificates and in this Agreement.
SECTION 20. DUTIES OF RIGHTS AGENT. The Rights Agent
undertakes any duties and obligations expressly imposed by this Agreement upon
the following terms and conditions, and no implied duties or obligations shall
be read into this Agreement against the Rights Agent, by all of which the
Company and the holders of Rights Certificates, by their acceptance thereof,
shall be bound:
(a) LEGAL COUNSEL. Before the Rights Agent acts or
refrains from acting, the Rights Agent may consult with legal counsel of its
selection (who may be legal counsel for the Company), and the opinion of such
counsel shall be full and complete authorization and protection to the Rights
Agent as to any action taken or omitted by it in good faith and in accordance
with such opinion.
(b) CERTIFICATION BY COMPANY. Whenever in the
performance of its duties under this Agreement the Rights Agent shall deem it
necessary or desirable that any fact or matter (including, without limitation,
the identity of any Acquiring Person or Adverse Person and the determination of
"current market price") be proved or established by the Company prior to taking
or suffering any action hereunder, such fact or matter (unless other evidence in
respect thereof be herein specifically prescribed) may be deemed to be
conclusively proved and established by a certificate signed by the Chairman of
the Board and Chief Executive Officer, President, any Vice President, the
Treasurer, any Assistant 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) LIABILITY FOR CERTAIN CONDUCT. The Rights Agent
shall be liable hereunder only for its own gross negligence, bad faith or
willful misconduct.
(d) NON-LIABILITY FOR STATEMENTS OF FACT AND RECITALS
HEREIN. 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 Rights
Certificates or be required to verify the same (except as to its
countersignature on such Rights Certificates), but all such statements and
recitals are and shall be deemed to have been made by the Company only.
(e) NON-RESPONSIBILITY FOR CERTAIN MATTERS. The
Rights Agent shall not be under any responsibility in respect of the validity of
this Agreement or the execution and
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delivery hereof (except the due execution hereof by the Rights Agent) or in
respect of the validity or execution of any Rights 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
Rights Certificate; nor shall it be responsible for any adjustment required
under the provisions of Section 11 or Section 13 or responsible for the manner,
method or amount of any such adjustment or the ascertaining of the existence of
facts that would require any such adjustment (except with respect to the
exercise of Rights evidenced by Rights Certificates after actual notice of any
such adjustment); nor shall it by any act hereunder be deemed to make any
representation or warranty as to the authorization or reservation of any shares
of Common Stock or Preferred Stock to be issued pursuant to this Agreement or
any Rights Certificate or as to whether any shares of Common Stock or Preferred
Stock will, when so issued, be validly authorized and issued, fully paid and
nonassessable, nor shall the Rights Agent be responsible for the legality of the
terms hereof in its capacity as an administrative agent.
(f) FURTHER ASSURANCES BY COMPANY. 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) INSTRUCTIONS FOR COMPANY OFFICERS. The Rights
Agent is hereby authorized and directed to accept instructions with respect to
the performance of its duties hereunder from the Chairman of the Board and Chief
Executive Officer, President, any Vice President, the Secretary, any Assistant
Secretary, the Treasurer or any Assistant Treasurer of the Company, and to apply
to such officers for advice or instructions in connection with its duties, and
it shall not be liable for any action taken or suffered to be taken by it in
good faith in accordance with instructions of any such officer or for any delay
in acting while waiting for those instructions. Any application by the Rights
Agent for written instructions from the Company may, at the option of the Rights
Agent, set forth in writing any action proposed to be taken or omitted by the
Rights Agent under this Agreement and the date on and/or after which such action
shall be taken or such omission shall be effective. The Rights Agent shall not
be liable for any action taken by, or omission of, the Rights Agent in
accordance with a proposal included in such application on or after the date
specified in such application (which date shall not be less than three Business
Days after the date any officer of the Company actually receives such
application, unless any such officer shall have consented in writing to any
earlier date) unless prior to taking any such action (or the effective date in
the case of an omission), the Rights Agent shall have received written
instructions in response to such application specifying the action to be taken
or omitted.
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(h) DEALING IN RIGHTS; OTHER TRANSACTIONS WITH
COMPANY. The Rights Agent and any stockholder, director, officer or employee of
the Rights Agent may buy, sell or deal in any of the Rights or other securities
of the Company or become pecuniarily interested in any transaction in which the
Company may be interested, or contract with or lend money to the Company or
otherwise act as fully and freely as though it were not Rights Agent under this
Agreement. Nothing herein shall preclude the Rights Agent from acting in any
other capacity for the Company or for any other legal entity.
(i) USE OF AGENTS; REASONABLE CARE BY AGENTS. 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, however, reasonable care was exercised in the selection thereof.
(j) EXPENDITURES. No provision of this Agreement
shall require the Rights Agent to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder
or in the exercise of its rights if there shall be reasonable grounds for
believing that repayment of such funds or adequate indemnification against such
risk or liability is not reasonably assured to it.
(k) CONSULTATION WITH COMPANY CONCERNING SURRENDERED
RIGHTS CERTIFICATES. If, with respect to any Right Certificate surrendered to
the Rights Agent for exercise or transfer, the certificate attached to the form
of assignment or form of election to purchase, as the case may be, has either
not been completed 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 of transfer without first consulting with the Company.
(l) NOTICE TO RIGHTS AGENT. The Company agrees to
give the Rights Agent prompt written notice of any event or ownership which
would prohibit the exercise or transfer of the Rights Certificates.
(m) SPECIFIC NOTIFICATION. The Rights Agent shall not
be required to take notice or be deemed to have notice of any fact, event or
determination (including, without limitation, any dates or events defined in
this Agreement or the designation of any Person as an Acquiring Person,
Affiliate or Associate) under this Agreement unless and until the Rights Agent
shall be specifically notified in writing by the Company of such fact, event or
determination.
SECTION 21. CHANGE OF RIGHTS AGENT. The Rights Agent or any
successor Rights Agent may resign and be discharged from its duties under this
Agreement upon thirty
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(30) days' notice in writing mailed to the Company. The Company may remove the
Rights Agent or any successor Rights Agent upon thirty (30) days' notice in
writing, mailed to the Rights Agent or successor Rights Agent, as the case may
be, and to each transfer agent of the Common Stock, by registered or certified
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 thirty
(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 Rights Certificate (who shall, with such
notice, submit his Rights Certificate for inspection by the Company), then the
Rights Agent or any registered holder of any Rights Certificate may apply, at
the expense of the Company, 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 and in good standing under the laws of the United States or of any
state of the United States, which is authorized under such laws to exercise
corporate trust powers and is subject to supervision or examination by federal
or state authority. After appointment, the successor Rights Agent shall be
vested with the same powers, rights, duties and responsibilities as if it had
been originally named as Rights Agent without further act or deed; but the
predecessor Rights Agent shall deliver and transfer to the successor Rights
Agent any property at the time held by it hereunder, and execute and deliver any
further assurance, conveyance, act or deed necessary for the purpose. Not later
than the effective date of any such appointment, the Company shall file notice
thereof in writing with the predecessor Rights Agent and each transfer agent of
the Common Stock, and mail a notice thereof in writing to the registered holders
of the Rights Certificates. Failure to give any notice provided for in this
Section 21, or any defect therein, shall not affect the legality or validity of
the resignation or removal of the Rights Agent or the appointment of the
successor Rights Agent, as the case may be.
SECTION 22. ISSUANCE OF NEW RIGHTS CERTIFICATES.
Notwithstanding any of the provisions of this Agreement or of the Rights to the
contrary, the Company may, at its option, issue new Rights Certificates
evidencing Rights in such form as may be approved by the Board to reflect any
adjustment or change in the Purchase Price and the number or kind or class of
shares or other securities or property purchasable under the Rights Certificates
made in accordance with the provisions of this Agreement. In addition, in
connection with the issuance or sale of shares of Common Stock following the
Distribution Date and prior to the redemption or expiration of the Rights, the
Company (a) shall, with respect to shares of Common Stock so issued or sold
pursuant to the exercise of stock options or under any employee plan or
arrangement, granted or awarded as of the Distribution Date, or upon the
exercise, conversion or exchange of securities issued by the Company prior to
the Distribution Date, and (b) may, in any other case, if deemed necessary or
appropriate by the Board, issue Rights Certificates representing the appropriate
number of Rights in connection with such issuance or sale; provided, however,
that (i) no such Rights Certificate shall be issued if, and to the extent that,
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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 Rights Certificate would be issued, and (ii) no such Rights
Certificate shall be issued if, or to the extent that, appropriate adjustments
shall have otherwise been made in lieu of the issuance of a Rights Certificate.
SECTION 23. REDEMPTION AND TERMINATION.
(a) REDEMPTION. The Company may, at its option, at
any time prior to the earlier of (i) the Close of Business on the tenth Business
Day following the Stock Acquisition Date (or, if the Stock Acquisition Date
shall have occurred prior to the Record Date, the Close of Business on the tenth
Business Day following the Record Date), or (ii) the Final Expiration Date,
redeem (the date of such redemption being referred to herein as the "Redemption
Date") all but not less than all of the then outstanding Rights at a redemption
price of $0.001 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"); provided, however, that any redemption after the Stock
Acquisition Date must be authorized by the Board; provided further, however,
that if, following the occurrence of a Stock Acquisition Date and following the
expiration of the right of redemption but prior to any Triggering Event, (i) a
Person who is an Acquiring Person shall have transferred or otherwise disposed
of a number of shares of Common Stock in one transaction or series of
transactions, not directly or indirectly involving the Company or any of its
Subsidiaries, which did not result in the occurrence of a Triggering Event such
that such Person is thereafter a Beneficial Owner of less than 15% of the
outstanding shares of Common Stock, and (ii) there are not other Persons,
immediately following the occurrence of the event described in clauses (i) and
(ii), who are Acquiring Persons, then the right of redemption shall be
reinstated and thereafter be subject to the provisions of this Section 23.
Notwithstanding anything contained in this Agreement to the contrary, the Rights
shall not be exercisable after the first occurrence of a Flip-in Event until
such time as the Company's right of redemption hereunder has expired. The
redemption of the Rights by the Company may be made effective at such time, on
such basis and with such conditions as the Board in its sole discretion or the
Disinterested Directors in their sole discretion, as applicable, may establish.
The Company may, at its option, pay the Redemption Price in cash, shares of
Common Stock (based on the Current Market Price of the Common Stock at the time
of redemption) or any other form of consideration deemed appropriate by the
Board or the Disinterested Directors, as applicable.
(b) SPECIAL MEETING.
(i) In the event the Company receives an
Offer from any Offeror, the Board of Directors of the Company shall call a
special meeting of stockholders
- 39 -
(the "Special Meeting") for the purpose of voting on a precatory resolution
requesting the Board of Directors to redeem the Rights (the "Resolution"). The
Special Meeting shall be held on a date selected by the Board of Directors,
which date shall be not less than 90 and not more than 120 days after the later
of (A) the date such Offer is received by the Company (the "Offer Date") and (B)
the date of any previously scheduled meeting of stockholders to be held within
60 days after the Offer Date; PROVIDED, HOWEVER, that if (x) such other meeting
shall have been called for the purpose of voting on a precatory resolution with
respect to another Offer and (y) the Offer Date shall be not later than fifteen
days after the date such other Offer was received by the Company, then both the
Resolution and such other resolution shall be voted on at such meeting and such
meeting shall be deemed to be the Special Meeting. The Board of Directors shall
set a date for determining the stockholders of record entitled to notice of and
to vote at the Special Meeting in accordance with the Company's Articles of
Incorporation and By-laws and with applicable law. At the Offeror's request, the
Company shall include in any proxy soliciting material prepared by it in
connection with the Special Meeting proxy soliciting material submitted by the
Offeror; PROVIDED, HOWEVER, that the Offeror shall by written agreement with the
Company contained in or delivered with such request have indemnified the Company
against any and all liabilities resulting from any misstatements, misleading
statements and omissions contained in the Offeror's proxy soliciting material
and have agreed to pay the Company's incremental costs incurred as a result of
including such material in the Company's proxy soliciting material.
Notwithstanding the foregoing, no Special Meeting shall be held from and after
such time as any Person becomes an Acquiring Person or an Adverse Person, and
any Special Meeting scheduled prior to such time and not theretofore held shall
be cancelled.
(ii) If at the Special Meeting the
Resolution receives the affirmative vote of a majority of the shares of Voting
Stock outstanding as of the record date of the Special Meeting, then all of the
Rights shall be redeemed by such stockholder action at the Redemption Price,
effective immediately prior to the consummation of any tender offer (provided
that such tender offer is consummated prior to 60 days after the date of the
Special Meeting) pursuant to which any Person offers to purchase all of the
shares of Voting Stock held by Persons other than such Person and its Affiliates
at a price per share in cash equal to or greater than the price contained in the
Resolution approved at the Special Meeting; PROVIDED, HOWEVER, that the Rights
shall not be redeemed at any time from and after such time as any Person becomes
an Acquiring Person or an Adverse Person.
(iii) Nothing contained in this subsection
(b) shall be deemed to be in derogation of the obligation of the Board of
Directors of the Company to exercise its fiduciary duty. Without limiting the
foregoing, nothing contained herein shall be construed to suggest or imply that
the Board of Directors shall not be entitled to reject any Offer, or to
recommend that holders of shares of Common Stock reject any tender offer, or to
take any other action (including, without limitation the commencement,
prosecution, defense or
- 40 -
settlement of any litigation and the submission of additional or alternative
Offers or other proposals to the Special Meeting) with respect to any Offer or
any tender offer that the Board of Directors believes is necessary or
appropriate to the exercise of such fiduciary duty.
(iv) Nothing in this subsection (b) shall be
construed as limiting or prohibiting the Company or any Offeror from proposing
or engaging in any acquisition, disposition or other transfer of any securities
of the Company, any merger or consolidation involving the Company, any sale or
other transfer of assets of the Company, any liquidation, dissolution or
winding-up of the Company, or any other action by the Company or such Offeror;
PROVIDED, HOWEVER, that the holders of Rights shall have the rights set forth in
this Agreement with respect to any such acquisition, disposition, transfer,
merger, consolidation, sale, liquidation, dissolution, winding-up, business
combination, transaction or action.
(c) TERMINATION. Immediately upon the action of the
Board of Directors of the Company ordering the redemption of the Rights pursuant
to Section 23(a)(i), or upon the effectiveness of the redemption of the Rights
pursuant to Section 23(b), 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 the Rights shall be to receive the Redemption
Price. In the case of a redemption permitted only under Section 23(a)(ii), the
right to exercise the Rights will terminate and represent only the right to
receive the Redemption Price: (i) prior to commencement of the Subscription
Period, only after ten Business Days following the giving of notice of such
redemption to the holders of such Rights; and (ii) after commencement of the
Subscription Period, upon the later of ten Business Days following the giving of
such notice or the expiration of the Subscription Period. Within ten days after
the action of the Board of Directors ordering any such 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 Company or the Rights
Agent or, prior to the Distribution Date, on the registry books of the Transfer
Agent for the Common Stock. Any notice which is mailed in the manner herein
provided shall be deemed given, whether or not the holder receives the notice.
Each such notice of redemption will state the method by which the payment of the
Redemption Price will be made.
The Company may, at its option, discharge
all of its obligations with respect to the Rights by (i) issuing a press release
announcing the manner of redemption of the Rights and (ii) mailing payment of
the Redemption Price to the registered holders of the Rights at their last
addresses as they appear on the registry books of the Company or the Rights
Agent, or, prior to the Distribution Date, on the registry books of the Transfer
Agent of the Common Stock, and upon such action, all outstanding Rights
Certificates shall be null and void without any further action by the Company.
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SECTION 24. EXCHANGE.
(a) RIGHT TO EXCHANGE. The Company may, at its
option, at any time and from time to time after the first occurrence of a
Flip-in Event, exchange all or part of the then outstanding and exercisable
Rights (other than Rights which have become void as provided in Section 7(e))
for the Exchange Number of shares of Common Stock, shares or units of Preferred
Stock which the Board has determined to be a Common Stock Equivalent, units of
other property or any combination thereof as determined by the Board.
Notwithstanding the foregoing, the Company shall not be empowered to effect such
exchange at any time after any Person (other than the Company, any Subsidiary of
the Company, any employee benefit plan of the Person (other than the Company,
any such Subsidiary or any entity holding shares of Common Stock for or pursuant
to any such plan), together with all Affiliates and Associates of such Person,
becomes the Beneficial Owner of 50% or more of the shares of Common Stock then
outstanding. The exchange of the Rights by the Company may be made effective at
such time, on such basis and with such conditions as the Board in its sole
discretion may establish.
(b) EFFECT OF EXCHANGE; PROCEDURE. Immediately upon
the action of the Company ordering the exchange of any Rights pursuant to
paragraph (a) of this Section 24, evidence of which shall have been filed with
the Rights Agent, and without any further action and without any notice, the
right to exercise such Rights will terminate and the only right thereafter of a
holder of such Rights shall be to receive that number of shares of Common Stock,
Common Stock Equivalents or units of other property equal to the number of such
Rights held by such holder multiplied by the Exchange Number. Promptly after the
action of the Company ordering the exchange of the Rights, the Company shall (i)
file evidence of such action with the Rights Agent, (ii) give public notice of
such exchange; provided, however, that the failure to give, or any defect in,
such notice shall not affect the validity of such exchange, and (iii) mail
notice of such exchange to 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 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 as provided in Section 7(e)) held by each holder of
Rights.
(c) COMMON STOCK EQUIVALENTS. In any exchange
pursuant to this Section 24, the Company, at its option, may substitute Common
Stock Equivalents for Common Stock exchangeable for Rights, at the initial rate
of one share of Common Stock Equivalent for each share of Common Stock, as
appropriately adjusted to reflect adjustments in the voting rights of the Common
Stock pursuant to the Company's Articles of Incorporation,
- 42 -
so that the share of Common Stock Equivalent delivered in lieu of each share of
Common Stock shall have the same voting rights as one share of Common Stock.
(d) INSUFFICIENT COMMON STOCK. In the event that the
number of shares of Common Stock which are authorized by the Company's Charter
but not outstanding or reserved for issuance for purpose other than upon
exercise of the Rights is not sufficient to permit any exchange of Rights in
accordance with this Section 24, the Company may, at its option, take all such
action as may be necessary to authorize additional shares of Common Stock for
issuance upon such exchange.
(e) FRACTIONAL SHARES. Upon the action of the Company
ordering the exchange of any Rights pursuant to paragraph (a) of this Section
24, the Company shall not be required to issue fractions of shares or to
distribute certificates which evidence fractional shares. In lieu of such
fractional shares, the Company may pay to the registered holders of the Rights
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 one share of Common Stock. For purposes of this Section 24, the current
market value of one share of Common Stock shall be the closing price of one
share of Common Stock (as determined pursuant to Section 11(d)(i)) for the
Trading Day immediately prior to the date of exchange pursuant to this Section
24, and the value of any Common Stock Equivalent shall be deemed to have the
same current market value as the Common Stock on such date.
SECTION 25. NOTICES
(a) ADDRESSES AND NOTICE METHOD FOR ALL NOTICES.
Notices or demands authorized by this Agreement to be given or made by the
Rights Agent or by the holder of any Rights Certificate to or on the Company
shall be sufficiently given or made if sent by telecopier (with receipt
confirmed) or by registered or certified mail, and shall be deemed given upon
receipt, addressed (until another address is filed in writing with the Rights
Agent) as follows:
Parkway Properties, Inc.
One Xxxxxxx Place Suite 1000
000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
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 Rights
Certificate to or on the Rights Agent shall be sufficiently given or made if
sent by telecopier (with receipt confirmed)
- 43 -
or by registered or certified mail and shall be deemed given upon receipt,
addressed (until another address is filed in writing with the Company) as
follows:
Computershare Investor Services, LLC
Attn: Relationship Manager
0 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
with a copy to:
Computershare Investor Services, LLC
Attn: Xxxxx Xxxxxxx
0 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Notices or demands authorized by this Agreement to be given or made by the
Company or the Rights Agent to the holder of any Rights Certificate (or, if
prior to the Distribution Date, to the holder of certificates representing
shares of Common Stock) 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.
(b) NOTICE OF CERTAIN DISTRIBUTIONS, ETC. In case the
Company shall propose, at any time after the Distribution Date, (i) to pay any
dividend payable in stock of any class to the holders of Preferred Stock or to
make any other distribution to the holders of Preferred Stock (other than a
regular quarterly cash dividend), or (ii) to offer to the holders of Preferred
Stock rights or warrants to subscribe for or to purchase any additional shares
of Preferred Stock or shares of stock of any class or any other securities,
rights or options, or (iii) to effect any reclassification of its Preferred
Stock (other than a reclassification involving only the subdivision of
outstanding shares of Preferred Stock), or (iv) to effect any consolidation or
merger into or with any other Person (other than a Subsidiary of the Company in
a transaction which complies with Section 11(o)), 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 transaction or a series of related transactions, of more
than 50% of the assets, cash flow 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)), 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 Rights Certificate and to the Rights Agent, to the extent
feasible and in accordance with this Section 25, a notice of such proposed
action, which shall specify the record date for the purposes of such stock
dividend,
- 44 -
distribution of rights or warrants, or the date on which such reclassification,
consolidation, merger, sale, transfer, liquidation, dissolution, or winding up
is to take place and the date of participation therein by the holders of the
shares of Preferred Stock, if any such date is to be fixed, and such notice
shall be so given in the case of any action covered by clause (i) or (ii) above
at least twenty (20) days prior to the record date for determining holders of
the shares of Preferred Stock for purposes of such action, and in the case of
any such other action, at least twenty (20) days prior to the date of the taking
of such proposed action or the date of participation therein by the holders of
the shares of Preferred Stock, whichever shall be the earlier.
(c) OTHER TRANSACTIONS. In case any event set forth
in Section 11(a)(ii) shall occur, then in such case, (i) the Company shall as
soon as practicable thereafter give to each holder of a Rights Certificate and
to the Rights Agent, to the extent feasible and in accordance with this Section
25, a notice of the occurrence of such event, which shall specify the event and
the consequences of the event to holders of Rights under Section 11(a)(ii), and
(ii) all references in the preceding paragraph to Preferred Stock shall be
deemed thereafter to refer to Common Stock and/or, if appropriate, other
securities.
SECTION 26. SUPPLEMENTS AND AMENDMENTS. Prior to the
Distribution Date and subject to the third to last sentence of this Section 26,
the Company and the Rights Agent shall, if the Company so directs, supplement or
amend any provision of this Agreement without the approval of any holders of
certificates representing shares of Common Stock, provided, however, that any
supplement or amendment of this Agreement after the Stock Acquisition Date or
after the date on which the Board determines, in accordance with the criteria
set forth in Section 1(d) of this Agreement, that a Person is an Adverse Person,
must be approved by a majority of the Disinterested Directors. From and after
the Distribution Date and subject to the penultimate sentence of this Section
26, the Company and the Rights Agent shall, if the Company so directs,
supplement or amend this Agreement without the approval of any holders of Rights
Certificates (i) to cure any ambiguity, (ii) to correct or supplement any
provision contained herein which may be defective or inconsistent with any other
provisions herein, (iii) to shorten or lengthen any time period hereunder, or
(iv) to change or supplement the provisions hereunder in any manner which the
Company may deem necessary or desirable and which shall not adversely affect the
interests of the holders of Rights Certificates (other than an Acquiring Person
or an Adverse Person or an Affiliate or Associate of such Person).
Notwithstanding the foregoing provisions of this Section 26, this Agreement may
not be supplemented or amended:
to lengthen, pursuant to clause (iii) of the
preceding sentence, (A) a time period relating to
when the Rights may be redeemed at such time as the
Rights are not then redeemable, or (B)
- 45 -
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, or
unless any such supplement or amendment after the
Stock Acquisition Date or the date on which the
Board has determined, in accordance with the
criteria set forth in Section 1(d) of this
Agreement, that a Person is an Adverse Person, has
been approved by a majority of the Disinterested
Directors.
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 26, the Rights Agent shall execute such supplement or
amendment. Notwithstanding anything contained in this Agreement to the contrary,
no supplement or amendment shall be made which changes the Redemption Price, the
Final Expiration Date, the Purchase Price or the number of one one-thousandths
of a share of Preferred Stock for which a Right is exercisable; provided,
however, that at any time prior to (i) the existence of an Acquiring Person or
(ii) the date that a tender or exchange offer by any Person (other than the
Company, any Subsidiary of the Company, any employee benefit plan of the Company
or any Subsidiary of the Company, or any Person or entity organized, appointed
or established by the Company for or pursuant to the terms of any such plan) is
first published or sent or given within the meaning of Rule 14d-2(a) of the
General Rules and Regulations under the Exchange Act, if upon consummation
thereof, such Person would be the Beneficial Owner of 15% or more of the shares
of Common Stock then outstanding or (iii) the Board has determined, in
accordance with the criteria set forth in Section 1(d) of this Agreement, that a
Person is an Adverse Person, the Board may amend this Agreement to increase the
Purchase Price or extend the Final Expiration Date. Prior to the Distribution
Date, the interests of the holders of Rights shall be deemed coincident with the
interests of the holders of Common Stock. Notwithstanding any other provision
hereof, the Rights Agent's consent must be obtained regarding any amendment or
supplement pursuant to this Section 26 which alters the Rights Agent's rights or
duties. Notwithstanding anything in this Agreement to the contrary, no
supplement or amendment that changes the rights and duties of the Rights Agent
under this Agreement will be effective against the Rights Agent without the
execution of such supplement or amendment by the Rights Agent.
SECTION 27. 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.
- 46 -
SECTION 28. DETERMINATIONS AND ACTIONS BY THE BOARD,
DISINTERESTED DIRECTORS, ETC. For all purposes of this Agreement and subject,
however, to the last sentence of Section 1(a), any calculation of the number of
shares of Common Stock outstanding at any particular time, including for
purposes of determining the particular percentage of such outstanding shares of
Common Stock of which any Person is the Beneficial Owner, shall be made in
accordance with the last sentence of Rule 13d-3(d)(1)(i) of the General Rules
and Regulations under the Exchange Act. The Board (with, where specifically
provided for herein, the concurrence of the Disinterested Directors) shall have
the exclusive power and authority to administer this Agreement and to exercise
all rights and powers specifically granted to such Board (with, where
specifically provided for herein, the concurrence of the Disinterested
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 to (i) interpret the provisions of this Agreement, and (ii) make all
determinations deemed necessary or advisable for the administration of this
Agreement (including a determination to redeem or not redeem the Rights or to
amend the Agreement). All such actions, calculations, interpretations and
determinations (including, for purposes of clause (y) below, all omissions with
respect to the foregoing) which are done or made by the Board (with, where
specifically provided for herein, the concurrence of the Disinterested
Directors) in good faith, shall (x) be final, conclusive and binding on the
Company, the Rights Agent, the holders of the Rights and all other parties, and
(y) not subject the Board or the Disinterested Directors to any liability to the
holders of the Rights.
SECTION 29. BENEFITS OF THIS AGREEMENT. Nothing in this
Agreement shall be construed to give to any Person other than the Company, the
Rights Agent and the registered holders of the Rights Certificates (and, prior
to the Distribution Date, registered holders of the Common Stock) any legal or
equitable right, remedy or claim under this Agreement; but this Agreement shall
be for the sole and exclusive benefit of the Company, the Rights Agent and the
registered holders of the Rights Certificates (and, prior to the Distribution
Date, registered holders of the Common Stock).
SECTION 30. SEVERABILITY. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated;
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 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 hereof 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. Without limiting the foregoing, if any
provision requiring a
- 47 -
majority of the Board to be Disinterested Directors or requiring action to be
taken by or with the concurrence of a majority of Disinterested Directors is
held by any court of competent jurisdiction to be invalid, void or unenforceable
and all appeals from that determination have been exhausted or waived, the
determination as to whether any such action shall be taken or withheld shall
then be made by the Board in accordance with applicable law and the Company's
Articles of Incorporation and Bylaws.
SECTION 31. GOVERNING LAW. This Agreement, each Right and each
Rights Certificate issued hereunder shall be deemed to be a contract made under
the laws of the State of Maryland and for all purposes shall be governed by and
construed in accordance with the laws of such State applicable to contracts made
and to be performed entirely within such State.
SECTION 32. COUNTERPARTS. This Agreement may be executed in
any number of counterparts and each of such counterparts shall for all purposes
be deemed to be an original, and all such counterparts shall together constitute
but one and the same instrument.
SECTION 33. DESCRIPTIVE HEADINGS. Descriptive headings of the
several Sections of this Agreement are inserted for convenience only and shall
not control or affect the meaning or construction of any of the provisions
hereof.
- 48 -
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
Attest: PARKWAY PROPERTIES, INC.
By:/s/ Xxxxxxxx X. Xxxx By: /s/ Xxxxxx X. Xxxxxx
----------------------------------- -------------------------------
Xxxxxxxx X. Xxxx, Secretary Xxxxxx X. Xxxxxx, President
COMPUTERSHARE INVESTOR SERVICES,
LLC, Rights Agent
Attest:
By:/s/ Xxxxxxx X. Xxxx By: /s/ Xxxxxxx X. Xxx
----------------------------------- -------------------------------
Name: Xxxxxxx X. Xxxx Name: Xxxxxxx X. Xxx
Title: Sr. Relationship Mgr. Title: Relationship Mgr.
- 49 -
EXHIBIT A
---------
[Form of Rights Certificate]
Certificate No. R-
_________ Rights
NOT EXERCISABLE AFTER SEPTEMBER 6, 2005 OR EARLIER IF NOTICE
OF REDEMPTION IS GIVEN. THE RIGHTS ARE SUBJECT TO REDEMPTION,
AT THE OPTION OF THE COMPANY, AT $.001 PER RIGHT ON THE TERMS
SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN
CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY ACQUIRING PERSONS
OR ADVERSE PERSONS OR ANY ASSOCIATE OR AFFILIATE OF ACQUIRING
PERSONS OR ADVERSE PERSONS (AS THOSE TERMS ARE DEFINED IN THE
RIGHTS AGREEMENT) AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY
BECOME NULL AND VOID. [THE RIGHTS REPRESENTED BY THIS RIGHTS
CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO WAS
OR BECAME AN ACQUIRING PERSON OR AN ADVERSE PERSON OR AN
AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON OR AN ADVERSE
PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT).
ACCORDINGLY, THIS RIGHTS CERTIFICATE AND THE RIGHTS
REPRESENTED HEREBY MAY BECOME NULL AND VOID IN THE
CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF SUCH AGREEMENT.](1)
Rights Certificate
------------------
PARKWAY PROPERTIES, INC.
--------------------
(1) The portion of the legend in brackets shall be inserted only if
applicable and shall replace the preceding sentence.
This certifies that ______________, or registered assigns, is
the registered owner of the number of Rights set forth above, each of which
entitles the owner thereof, subject to the terms, provisions and conditions of
the Amended and Restated Rights Agreement dated as of February 21, 2002 (the
"Rights Agreement") by and among Parkway Properties, Inc., a Maryland
corporation (the "Company"), and Computershare Investor Services, LLC, a
Delaware limited liability company, as Rights Agent, to purchase from the
Company at any time after the Distribution Date (as such term is defined in the
Rights Agreement) and prior to the close of business on September 6, 2005 at the
principal corporate executive office of the Company or at the offices of the
Rights Agent designated for such purpose, one one-thousandth of a share of
Series C Preferred Stock, par value $.001 per share (the "Preferred Stock") of
the Company, at a purchase price of $45.00 per share (the "Purchase Price"),
upon presentation and surrender of this Rights Certificate with the Form of
Election to Purchase duly executed.
The number of Rights evidenced by this Rights Certificate (and
the number of shares that may be purchased upon exercise thereof) set forth
above, and the Purchase Price per share set forth above, are the number and
Purchase Price as of February 21, 2002. As provided in the Rights Agreement, the
Purchase Price, the type of security, and the number of shares which may be
purchased upon the exercise of the Rights evidenced by this Rights Certificate
are subject to modification and adjustment upon the happening of certain events.
This Rights 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 Company and the holders of the Rights Certificates. Copies of the Rights
Agreement are on file at the above-mentioned office of the Company or the
principal shareholder services office of the Rights Agent and are also available
upon written request to the Company or the Rights Agent.
This Rights Certificate, with or without other Rights
Certificates, upon surrender at the principal executive office of the Company or
the principal shareholder services office of the Rights Agent may be exchanged
for another Rights Certificate or Rights Certificates of like tenor and date
evidencing Rights entitling the holder to purchase a like aggregate number of
shares of Preferred Stock as the Rights evidenced by the Rights Certificate or
Rights Certificates surrendered shall have entitled such holder to purchase. If
this Rights Certificate shall be exercised (other than pursuant to Section 11(a)
or Section 13(a) of the Rights Agreement) in part, the holder shall be entitled
to receive upon surrender hereof another Rights Certificate or Rights
Certificates for the number of whole Rights not exercised. If this Rights
Certificate shall be exercised in whole or in part pursuant to Section 11(a) or
Section 13(a) of the Rights Agreement, the holder shall be entitled to receive
this Rights Certificate duly marked to indicate that such exercise has occurred
as set forth in the Rights Agreement.
A-2
Subject to the provisions of the Rights Agreement, the Rights
evidenced by this Rights Certificate may be redeemed by the Company at its
option at a redemption price of $.001 per Right. Subject to the provisions of
the Rights Agreement, the Company, at its option, may elect to mail payment of
the redemption price to the registered holder of the Right at the time of
redemption, in which event this Rights Certificate may become void without any
further action by the Company.
No fractional shares of Preferred Stock (other than
fractions which are integral multiples of one one-thousandth of a share of
Preferred Stock) or other securities will be issued upon the exercise of any
Right or Rights evidenced hereby, but in lieu thereof a cash payment will be
made, as provided in the Rights Agreement.
No holder of this Rights Certificate shall be
entitled to vote or receive dividends or be deemed for any purpose the holder of
shares of Preferred Stock or of any other securities of the Company which may at
any time be issuable on the exercise hereof, nor shall anything contained in the
Rights Agreement or herein be construed to confer upon the holder hereof, as
such, any of the rights of a stockholder of the Company or any right to vote for
the election of directors or upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate action, or to
receive notice of meetings or other actions affecting stockholders (except as
provided in the Rights Agreement), or to receive dividends or subscription
rights, or otherwise, until the Right or Rights evidenced by this Rights
Certificate shall have been exercised as provided in the Rights Agreement.
This Rights Certificate shall not be valid or obligatory for
any purpose until it shall have been executed by the Company.
WITNESS the facsimile signature of the proper officers of the
Company and its corporate seal.
Dated as of
-------------------
PARKWAY PROPERTIES, INC.
ATTEST:
By:
----------------------------------- ----------------------------------------
President
A-3
[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if
such holder desires to transfer the Rights Certificate.)
FOR VALUE RECEIVED hereby sells, assigns and transfers unto
----------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
(Please print name and address of transferee)
this Rights Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint __________________ as
attorney to transfer the within Rights Certificate on the books of the
within-named Company, with full power of substitution.
Dated: _________________, _______
___________________________________
Signature
___________________________________
Signature
Signature Guaranteed:
_________________________
The surrendered forms must be properly endorsed and the
signature of the registered holder on the forms must correspond with the name as
written upon the face of the forms in every particular and must be guaranteed by
a financial institution (including most banks, savings and loan associations and
brokerage houses) which is a participant in the Securities Transfer Agents
Medallion Program, the Stock Exchanges Medallion Program or the New York Stock
Exchange Medallion Signature Program.
A-4
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to
exercise Rights Certificate pursuant to
Section 11(a) or Section 13(a) of the Rights Agreement.)
To: ____________________
The undersigned hereby irrevocably elects to exercise Rights represented
by this Rights Certificate to purchase the shares of Common Stock issuable the
exercise of the Rights and requests that certificates for such shares be issued
in the name of:
(Please insert social security or other identifying number)
------------------------------------------------------------------------------
(Please print name and address)
------------------------------------------------------------------------------
------------------------------------------------------------------------------
The Rights Certificate indicating the balance, if any, of such
Rights which may still be exercised pursuant to Section 11(a) or Section 13(a)
of the Rights Agreement shall be returned to the undersigned unless such person
requests that the Rights Certificates registered in the name of and delivered
to: ________________________________________________.
Please insert social security or other identifying number
(complete only if Rights Certificate is to be registered in a name other than
the undersigned) _____________________.
(Please print name and address)
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Dated: _______________, ________
___________________________________
Signature
Signature Guaranteed:
___________________ ___________________________________
Signature
A-5
CERTIFICATE
-----------
The undersigned hereby certifies by checking the appropriate
boxes that:
(1) the Rights evidenced by this Rights Certificate
[ ] are [ ] are not being exercised by or on behalf of a Person
who is or was an Acquiring Person, an Adverse Person or an
Affiliate or Associate of any such Acquiring Person or Adverse
Person (as each 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 Rights Certificate from any
Person who is, was or subsequently became an Acquiring Person
or Adverse Person or Affiliate or Associate of any such
Acquiring Person or Adverse Person.
Dated: _______________, ___________
___________________________________
Signature
___________________________________
Signature
NOTICE
------
The signatures to the foregoing Election to Purchase and
Certificate must correspond to the name as written upon the face of this Rights
Certificate in every particular, without alteration or enlargement or any change
whatsoever.
A-6
EXHIBIT B
---------
SUMMARY OF RIGHTS TO PURCHASE PREFERRED STOCK
On September 7, 1995 the Board of Directors of The Parkway
Company, predecessor to Parkway Properties, Inc. (the "Company") declared a
dividend distribution of one Right for each outstanding share of Company Common
Stock to stockholders of record at the close of business on September 29, 1995
pursuant to a Rights Agreement by and between the Company and Society National
Bank dated as of September 7, 1995. On February 20, 2002, the Board of Directors
adopted the Amended and Restated Rights Agreement by and between the Company and
Computershare Investor Services, LLC, successor to Society National Bank (the
"Rights Agent"), dated as of February 21, 2002 (the "Agreement"). The
description and terms of the Rights are set forth in the Agreement. Subject to
becoming exercisable as described below, each Right entitles the registered
holder to purchase from the Company one one-thousandth of a share of Series C
Preferred Stock at a Purchase Price of $45.00, subject to adjustment.
Initially, the Rights attach to all Common Stock certificates
representing shares then outstanding, and no separate Rights Certificates will
be distributed. The Rights will separate from the Common Stock on the
Distribution Date, which will occur on the earliest of (i) 10 days after the
date of a public announcement (the "Stock Acquisition Date") that a person or
group of affiliated or associated persons has acquired, or obtained the right to
acquire, beneficial ownership of 20% or more of the outstanding shares of Common
Stock (an "Acquiring Person"), unless otherwise excepted pursuant to the terms
of the Agreement; (ii) 10 business days following the commencement of a tender
or exchange offer that would result in a person or group beneficially owning 15%
or more of the outstanding shares of Common Stock; or (iii) 10 business days
after the Board of Directors of the Company declares any person to be an
"Adverse Person," as described below.
To declare a person to be an "Adverse Person" under the
Agreement requires a determination by the Board of Directors of the Company that
such person, alone or together with its affiliates and associates, has become
the beneficial owner of an amount of Common Stock which the Board determines to
be substantial (which amount shall in no event be less than 15% of the shares of
Common Stock then outstanding) and a determination by the Board of Directors
that (i) such beneficial ownership by such person is intended to cause the
Company to repurchase any of the Common Stock beneficially owned by such person
or to cause pressure on the Company to take action or enter into a transaction
or series of transactions intended to provide such person with short-term
financial gain under circumstances where the Board of Directors determines that
the best long-term interests of the Company and its stockholders would not be
served by taking such action or entering into such transaction or series of
transactions at that time or (ii) such beneficial ownership is causing or is
reasonably likely to cause a material adverse impact on the business or
prospects of the
B-1
Company (including, but not limited to, jeopardization of the status of the
Company as a "real estate investment trust" under the Internal Revenue Code of
1986, as amended, impairment of relationships with the Company's tenants,
customers, lenders, providers of financial and other services, or regulators or
impairment of the Company's ability to maintain its competitive position).
Until the Distribution Date, (i) the Rights will be evidenced
by the Common Stock certificates and will be transferred with and only with such
Common Stock certificates; (ii) new Common Stock certificates issued after
September 29, 1995, contain a legend incorporating the Agreement by reference,
but Common Stock certificates outstanding prior to that date will also
incorporate the Agreement notwithstanding the absence of such a legend; and
(iii) the surrender for transfer of any certificate for Common Stock outstanding
will also constitute the transfer of the Rights associated with the Common Stock
represented by such certificate.
The Rights are not exercisable until the Distribution Date and
will expire at the close of business on September 6, 2005, unless earlier
redeemed by the Company as described below.
As soon as practicable after the Distribution Date, Rights
Certificates will be mailed to holders of record of the Common Stock as of the
close of business on the Distribution Date and, thereafter, the separate Rights
Certificates alone will represent the Rights. All shares of Common Stock issued
prior to the Distribution Date will be issued with Rights.
In the event (a "Flip-in Event") (i) (a) any Acquiring Person
or Adverse Person or its affiliates or associates, merges, enters into a share
exchange or otherwise combines with the Company, and the Company survives and
the Common Stock remains outstanding and unchanged or (b) any person becomes an
Acquiring Person or Adverse Person or (ii) during the time there is an Acquiring
Person or Adverse Person, there is a reclassification of the Company's
securities or a recapitalization of the Company, or any merger or consolidation
of the Company with its subsidiaries or other transaction or series of
transactions involving the Company or its subsidiaries, other than a transaction
or transactions considered a Flip-over Event (as defined below) pursuant to the
terms of the Agreement that increases by more than 1% the proportionate share of
the outstanding shares of any class of securities of the Company beneficially
owned by any Acquiring Person or Adverse Person, then each holder of a Right
will have the right to receive upon exercise at the current purchase price, in
lieu of the Series C Preferred Stock, a number of shares of Common Stock equal
to (x) multiplying the purchase price by the number of one one-thousandths of a
share of Series C Preferred Stock for which a Right was exercisable and (y)
dividing that product by 50% of the current market price per share of Common
Stock.
B-2
For example, at a purchase price of $45 per Right, each Right
not owned by an Acquiring Person (or by certain related parties) following an
event set forth in the preceding paragraph would entitle its holder to purchase
$90 worth of Common Stock for $45. Assuming that the Common stock had a per
share market price of $30 at such time, the holder of each valid Right would be
entitled to purchase three shares of Common Stock for $45.
In the event (a "Flip-over Event") that, any time following
the stock Acquisition Date, (i) the Company consolidates with, or merges with
and into, any other person (other than a subsidiary of the Company in a
transaction that otherwise complies with the terms of the Agreement) and the
Company does not survive the consolidation or merger; (ii) any person (other
than a subsidiary of the Company in a transaction that otherwise complies with
the terms of the Agreement) consolidates with, or merges with or into, the
Company, and the Company survives the consolidation or merger and, in connection
with such consolidation or merger, all or part of the outstanding shares of
Common Stock are changed into or exchanged for stock or other securities of any
other person or cash or any other property; or (iii) the Company or its
subsidiaries sells or otherwise transfers, in one transaction or a series of
related transactions, assets, cash flow or earning power aggregating more than
50% of the assets or earning power of the Company and its subsidiaries (taken as
a whole) to any person or persons (other than the Company or any of its
subsidiaries in one or more transactions each of which otherwise complies with
the terms of the Agreement) then, in each case, unless otherwise provided, (1)
each holder of a Right, except as otherwise provided, has the right to receive,
upon exercise at the then current purchase price, the number of shares of Common
Stock of the Principal Party (as defined below) not subject to any liens,
encumbrances, rights of first refusal or other adverse claims, as equals the
result obtained by (x) multiplying the purchase price by the number of one
one-thousandths of a share of Series C Preferred Stock for which a Right is
exercisable immediately prior to the first occurrence of a Flip-over Event (or,
if a Flip-in Event has occurred prior to the first occurrence of a Flip-over
Event, multiplying the number of one one-thousandths of a share of Series C
Preferred Stock for which a Right was exercisable immediately prior to the first
occurrence of a Flip-in Event by the purchase price in effect immediately prior
to such first occurrence), and dividing that product by (y) 50% of the current
market price per share of the Common Stock of such Principal Party on the date
of consummation of the Flip-over Event; and (2) such Principal Party will
thereafter be liable for, and will assume, all the obligations and duties of the
Company pursuant to the Agreement.
For purposes of the Agreement, "Principal Party" means (i) in
the case of any transaction described in clause (i) or (ii) of the first
sentence above, the person that is the issuer of any securities into which
shares of Common Stock are converted in such merger or consolidation, and if no
securities are so issued, the person that is the other party to such merger or
consolidation; and (ii) in the case of any transaction described in clause (iii)
above, the person that is the party receiving the greatest portion of the
assets, cash flow or earning power transferred pursuant to such transaction or
transactions; provided, however, that in any case, (1) if the common stock of
such person is not at such time and has not been continuously over the preceding
12 month period registered under Section 12 of the Securities Exchange Act
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of 1934, as amended, and such person is a direct or indirect subsidiary of
another person the common stock of which is and has been so registered,
"Principal Party" shall refer to such other person; and (2) in case such person
is a subsidiary of more than one person, the common stocks of two or more of
which are and have been so registered, "Principal Party" refers to whichever of
such persons is the issuer of the common stock having the greatest aggregate
market value.
The Purchase Price payable, and the number of shares of Series
C Preferred Stock (or the number and kind of other securities or property, as
the case may be) issuable, upon exercise of the Rights are subject to adjustment
from time to time to prevent dilution (i) in the event of a stock dividend on,
or a subdivision, combination or reclassification of the Series C Preferred
Stock; (ii) if holders of Series C Preferred Stock are granted certain rights,
options or warrants to subscribe for Series C Preferred Stock or securities
convertible into Series C Preferred Stock or its equivalent, at less than the
current market price of the Series C Preferred Stock; or (iii) upon the
distribution to holders of the Series C Preferred Stock of evidences of
indebtedness or assets (excluding regular quarterly cash dividends) or of
subscription rights or warrants (other than those referred to above).
No adjustment in the purchase price will be required until
cumulative adjustments amount to at least 1% of the purchase price. The Company
is not required to issue fractional shares of Series C Preferred Stock (other
than fractions that are integral multiples of one one-thousandth of a share) and
Common Stock and in lieu thereof an adjustment in cash may be made based on the
current market value of the Series C Preferred Stock and the Common Stock, as
applicable, on the last trading date prior to the date of exercise.
At any time prior to the earlier of 10 business days after the
Stock Acquisition Date or the final expiration date, the Board of Directors may
redeem the outstanding Rights in whole, but not in part, at a redemption price
of $0.001 per Right, as adjusted (the "Redemption Price"); provided, however,
that any redemption after the Stock Acquisition Date must be authorized by the
Board; provided further, however, that if, following the occurrence of a Stock
Acquisition Date and following the expiration of the right of redemption but
prior to any Flip-in Event or Flip-over Event, (i) a person who is an Acquiring
Person has transferred or otherwise disposed of a number of shares of Common
Stock in one transaction or series of transactions, not directly or indirectly
involving the Company or any of its subsidiaries, which did not result in the
occurrence of a Flip-in Event or Flip-over Event such that such person is
thereafter a beneficial owner of less than 15% of the outstanding shares of
Common Stock; and (ii) there are no other persons, immediately following the
occurrence of the event described in clauses (i) and (ii), who are Acquiring
Persons, then the right of redemption shall be reinstated and thereafter be
subject to the provisions of the Agreement. Notwithstanding anything contained
in this Agreement to the contrary, the Rights will not be exercisable after the
first occurrence of a Flip-in Event until such time as the Company's right of
redemption hereunder has expired. The redemption of the Rights by the Company
may be made effective at such time, on such basis and with such conditions as
the Board in its sole discretion or the
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disinterested directors in their sole discretion, as applicable, may establish.
The Company may, at its option, pay the Redemption Price in cash, shares of
Common Stock (based on the current market price of the Common Stock at the time
of redemption) or any other form of consideration deemed appropriate by the
Board or the disinterested directors, as applicable.
Immediately upon any redemption of the Rights, the right to
exercise the Rights will terminate and the only right of the holders of Rights
will be entitled to receive the Redemption Price.
The terms of the Rights may be amended by the Board of
Directors of the Company without the consent of the holders of the Rights to
change or supplement the provisions of the Agreement in any manner which the
Board deems necessary or desirable, except that, after the Distribution Date, no
amendment may be effected which would adversely affect the interests of the
holders of the Rights.
Until a Right is exercised, the holder thereof, as such, will
have no rights as a stockholder of the Company, including, without limitation,
the right to vote or to receive dividends.
A copy of the Agreement has been filed with the Securities and
Exchange Commission as an Exhibit to Amendment No. 1 to our Registration
Statement on Form 8-A dated February __, 2002. Copies of the Agreement are
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 Agreement, which is incorporated herein by reference.
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