EXHIBIT 4.2
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AMENDMENT TO RIGHTS AGREEMENT
-----------------------------
This FIRST AMENDMENT TO RIGHTS AGREEMENT effective as of September 29,
2003 (the "Amendment") is between Xxxxxx Rubbermaid Inc. (f/k/a Xxxxxx
Co.), a Delaware corporation (the "Corporation"), and The Bank of New
York, a New York banking corporation ("The Bank of New York").
WHEREAS, the Corporation and EquiServe Trust Company, N.A. (f/k/a
First Chicago Trust Company of New York, a New York corporation,
"EquiServe") entered into a certain Rights Agreement, dated as of
August 6, 1998 (the "Rights Agreement"), under which First Chicago
Trust Company of New York was named the "Rights Agent" (as such term
is defined in the Rights Agreement); and
WHEREAS, pursuant to the provisions of Sections 22 and 27 of the
Rights Agreement, the Corporation has given notice to EquiServe that
effective September 29, 2003 it is being removed as Rights Agent and
The Bank of New York is being appointed as the successor Rights Agent
under the Rights Agreement; and
WHEREAS, The Bank of New York has expressed its willingness and desire
to serve as such appointed successor Rights Agent effective as of
September 29, 2003 subject to the parties entering into this Amendment
pursuant to the provisions of Section 28 of the Rights Agreement.
NOW, THEREFORE, it is mutually agreed between the Corporation and The
Bank of New York that:
1. Upon execution of this Amendment, The Bank of New York shall
become, and does hereby become, a party to the Rights Agreement
and shall be fully bound by, and subject to, all of the
covenants, terms and conditions of the Rights Agreement as
though an original party thereto and as "Rights Agent"
thereunder.
2. The Rights Agreement shall be amended to, among other things,
reflect the appointment of The Bank of New York as Rights
Agent, as follows:
a. The title page of the Rights Agreement shall be amended:
(a) to replace the name of the party designated as
"XXXXXX CO." with the name "XXXXXX RUBBERMAID INC." and
(b) to replace the name of the party designated as
"FIRST CHICAGO TRUST COMPANY OF NEW YORK" with the name
"THE BANK OF NEW YORK".
b. The introductory paragraph of the Rights Agreement shall
be amended as follows: (a) to have the name of the
"Company" (as such term is defined in the Rights
Agreement) changed from "Xxxxxx Co." to "Xxxxxx
Rubbermaid Inc." and (b) to have the name of the Rights
Agent changed from "First Chicago Trust Company of New
York, a New York corporation" to "The Bank of New York"
and to have The Bank of New York identified as a "New
York banking corporation".
c. Section 1(d) of the Rights Agreement shall be and hereby
is amended in its entirety to read:
"Business Day" shall mean any day other than a
Saturday, Sunday or legal holiday for banking
institutions in the State of Illinois or the State of
New York.
d. Section 1(e) of the Rights Agreement shall be and hereby
is amended in its entirety to read:
"Close of business" on any given date shall mean 5:00
P.M., New York time, on such date; PROVIDED, HOWEVER,
that if such date is not a Business Day it shall mean
5:00 P.M., New York time, on the next succeeding
Business Day.
e. Section 3(c) of the Rights Agreement shall be and hereby
is amended to replace the legend set forth therein in
its entirety to read as follows:
"This certificate also evidences and entitles the
holder hereof to certain Rights as set forth in a
Rights Agreement between XXXXXX RUBBERMAID INC. and
First Chicago Trust Company of New York dated as of
August 6, 1998, as amended between XXXXXX RUBBERMAID
INC. and The Bank of New York dated as of September
29, 2003, and as may be further amended and modified
from time to time (the "Rights Agreement"), the terms
of which are hereby incorporated herein by reference
and a copy of which is on file at the principal
executive offices of XXXXXX RUBBERMAID INC. Under
certain circumstances, as set forth in the Rights
Agreement, such Rights may be redeemed, may expire or
may be evidenced by separate certificates and will no
longer be evidenced by this certificate. XXXXXX
RUBBERMAID INC. will mail to the holder of this
certificate a copy of the Rights Agreement without
charge promptly upon receipt of a written request
therefor. Under certain circumstances, Rights issued
to, or held by, an Acquiring Person or Associates or
Affiliates of an Acquiring Person (as defined in the
Rights Agreement) and any subsequent holder of such
Rights may become null and void."
2
f. Section 22 of the Rights Agreement shall be and hereby
is amended in its entirety to read:
"Section 22. CHANGE OR RIGHTS AGENT. The Rights
Agent or any successor Rights Agent may resign and be
discharged from its duties under this Agreement upon
30 days' notice in writing mailed to the Company and
to each transfer agent of the Common Stock by
registered or certified mail, and to the holders of
the Right Certificates by first-class mail. The
Company may remove the Rights Agent or any successor
Rights Agent upon 30 days' notice in writing, mailed
to the Rights Agent or successor Rights Agent, as the
case may be, and to each transfer agent of the Common
Stock by registered or certified mail, and to the
holders of the Right Certificates by first-class mail.
If the Rights Agent shall resign or be removed or
shall otherwise become incapable of acting or shall
repeatedly fail or refuse to act, the Company shall
appoint a successor to the Rights Agent. If the
Company shall fail to make such appointment within a
period of 30 days after giving notice of such removal
or after it has been notified in writing of such
resignation or incapacity or repeated failure or
refusal to act by the Rights Agent or by the holder
of a Right Certificate (who shall, with such notice,
submit his Right Certificate for inspection by the
Company), then the registered holder of any Right
Certificate may apply to any court of competent
jurisdiction for the appointment of a new Rights
Agent. Any successor Rights Agent, whether appointed
by the Company or by such a court, shall be (a) a
corporation organized and doing business under the
laws of the United States or of the State of Illinois
or the State of New York (or of any other state of
the United States so long as such corporation is
authorized to do business as a banking institution in
the State of New York or the State of Illinois), in
good standing, having a principal office in the State
of New York or the State of Illinois, which is
authorized under such laws to exercise corporate trust
or stock transfer powers and is subject to supervision
or examination by a federal or state authority and
which has at the time of its appointment as Rights
Agent a combined capital and surplus of at least
$50,000,000, or (b) an affiliate of a corporation
described in clause "(a)." After appointment, the
successor Rights Agent shall be vested with the same
powers, rights, duties and responsibilities as if it
has been originally named as Rights Agent without
further act or deed, and the predecessor Rights Agent
shall deliver and transfer to the successor Rights
Agent any property at the time held by it hereunder,
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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 22, however, or any
defect therein, shall not affect the legality or
validity of the resignation or removal of the Rights
Agent or the appointment of the successor Rights
Agent, as the case may be."
g. Section 27 of the Rights Agreement shall be amended: (a)
to replace the name and address of "Xxxxxx Co." with the
following: "Xxxxxx Rubbermaid Inc., Deerfield Corporate
Centre One, 00000 Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxx 00000" and (b) to replace the name and address
of "First Chicago Trust Company of New York" with the
following: "The Bank of New York, 000 Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 Attention: Stock Transfer".
h. Exhibit A of the Rights Agreement shall be and hereby is
amended in its entirety and restated as EXHIBIT A
attached hereto.
i. Exhibit B of the Rights Agreement shall be and hereby is
amended in its entirety and restated as EXHIBIT B
attached hereto.
3. The Bank of New York hereby represents and warrants to the
Corporation that The Bank of New York (a) (i) is a
corporation organized and doing business under the laws of
the State of New York or the State of Illinois, (ii) is
authorized to do business as a banking institution in the
State of New York or the State of Illinois, (iii) is in
good standing in the State of New York or the State of
Illinois, (iv) has a principal office in the State of
New York or the State of Illinois which is authorized under
such laws to exercise corporate trust or stock transfer
powers and is subject to supervision or examination by
federal or state authority, and (v) has a combined capital
and surplus of at least $50,000,000, or (b) is an affiliate
of a corporation described in the foregoing clause (a).
4. The execution and delivery of this Amendment has been duly
and validly authorized and approved by each of the parties
hereto, and no other proceedings (corporate or otherwise)
on the part of the parties hereto are necessary to
authorize this Amendment. This Amendment has been duly and
validly executed and delivered by each of the parties
hereto and constitutes a valid and binding agreement of
such parties, enforceable against each of them in
accordance with its terms.
4
5. Except as expressly amended by this Amendment, all terms,
conditions and other provisions contained in the Rights
Agreement are hereby ratified and reaffirmed. The Rights
Agreement, after giving effect hereto, shall be and remain
in full force and effect.
6. Upon execution hereof, each reference in the Rights
Agreement to "this Agreement," "hereby," "hereunder,"
"herein," "hereof," or words of like import referring to
the Rights Agreement shall mean and refer to the Rights
Agreement, as amended by this Agreement. In addition, any
and all notices, requests, certificates and other
instruments executed and delivered after the date hereof
may refer to the Rights Agreement without making specific
reference to this Amendment; but nevertheless all
references to the Rights Agreement shall be a reference to
such document as amended hereby. If this Amendment is
inconsistent with (or affects the interpretations of)
unamended portions of the Rights Agreement, the provisions
of (or interpretations suggested by) this Amendment shall
control.
7. This Amendment shall be governed by and construed in
accordance with Delaware law.
8. This Amendment may be executed in any number of
counterparts, each executed counterpart constituting an
original, but all together only one agreement.
***
IN WITNESS WHEREOF, the Corporation and The Bank of New York have
caused this Amendment to Rights Agreement to be duly executed and
their respective corporate seals to be hereunto affixed and attested,
all as of this 29th day of September, 2003.
Attest: Xxxxxx Rubbermaid Inc.
By:/s/ Xxxxx Xxxxxx By:/s/ Xxxx X. Xxxxxxxxxxx
-------------------------- ---------------------------------
Name: Xxxxx Xxxxxx Name: Xxxx X. Xxxxxxxxxxx
Title: Legal Administrator Title: Vice President-General
Counsel & Corporate Secretary
Attest: The Bank of New York
By:/s/ Xxxxx Xxxxxxxxx By:/s/ Xxxxxx X. Xxxxxxx
-------------------------- ---------------------------------
Name: Xxxxx Xxxxxxxxx Name: Xxxxxx X. Xxxxxxx
Title: Assistant Treasurer Title: Assistant Vice President
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EXHIBIT A
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[Form of Right Certificate]
Certificate No. R- _____ Rights
NOT EXERCISABLE AFTER OCTOBER 31, 2008 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. [THE RIGHTS
REPRESENTED BY THIS CERTIFICATE ARE OR WERE BENEFICIALLY
OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR
AN ASSOCIATE OR AFFILIATE OF AN ACQUIRING PERSON. THIS RIGHT
CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY BECOME
VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF THE
RIGHTS AGREEMENT.]*
Right Certificate
XXXXXX RUBBERMAID INC.
This certifies that _________________________________, or
registered assigns, is the registered owner of the number of Rights
set forth above, each of which entitles the owner thereof, subject to
the terms, provisions and conditions of the Rights Agreement dated as
of August 6, 1998 between XXXXXX RUBBERMAID INC., a Delaware
corporation (the "Company"), and First Trust Chicago Company of New
York, a New York Corporation, as amended between the Company and The
Bank of New York, a New York banking corporation (the "Rights Agent"),
dated as of September 29, 2003, and as may be further amended and
modified from time to time (the "Rights Agreement"), to purchase from
the Company at any time after the Distribution Date (as such term is
defined in the Rights Agreement) when the rights are exercisable
pursuant to the Rights Agreement and prior to 5:00 P.M. (Chicago time)
on October 31, 2008 at the principal office of the Rights Agent, or
its successors as Rights Agent, in Chicago, Illinois, one fully paid
non-assessable share of the Common Stock, $1.00 par value ("Common
Stock"), of the Company, at a purchase price of $200 per share (the
"Purchase Price"), upon presentation and surrender of this Right
Certificate with the Form of Election to Purchase duly executed. The
number of Rights evidenced by this Right Certificate (and the number
of shares which 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 October 31, 1998. As provided in the
Rights Agreement, the Purchase Price and the number of shares of
Common Stock or other securities or property which may be purchased
upon the exercise of the Rights evidenced by this Right Certificate
* The portion of the legend in brackets shall be inserted only if
applicable.
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are subject to modification and adjustment upon the happening of
certain events.
This Right Certificate is subject to all of the terms,
provisions and conditions of the Rights Agreement, which terms,
provisions and conditions are hereby incorporated herein by reference
and made a part hereof and to which Rights Agreement reference is
hereby made for a full description of the rights, limitations of
rights, obligations, duties and immunities hereunder of the Rights
Agent, the Company and the holders of the Right Certificates. Copies
of the Rights Agreement are on file at the above-mentioned office of
the Rights Agent.
This Right Certificate, with or without other Right
Certificates, upon surrender at the principal office of the Rights
Agent, may be exchanged for another Right Certificate or Right
Certificates of like tenor and date evidencing Rights entitling the
holder to purchase a like aggregate number of shares of Common Stock
or other securities or property as the Rights evidenced by the Right
Certificate or Right Certificates surrendered shall have entitled such
holder to purchase. If this Rights Certificate shall be exercised
(other than pursuant to Section 11(a)(ii) 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)(ii) of the
Rights Agreement, the holder shall be entitled to receive this Rights
Certificate duly marked to indicate such exercise has occurred as set
forth in the Rights Agreement.
Subject to the provisions of the Rights Agreement, the
Rights evidenced by this Certificate may be redeemed by the Company at
its option at a redemption price of $.01 per Right. 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
Certificate may become void without any further action by the Company.
No fractional shares of Common Stock 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 Right Certificate shall be entitled to
vote or receive dividends or be deemed for any purpose the holder of
Common Stock or of any other securities of the Company which may at
any time be issuable on the exercise hereof, nor shall anything
contained in the Rights Agreement or herein be construed to confer
upon the holder hereof, as such, any of the rights of a stockholder of
the Company or any right to vote for the election of directors or upon
any matter submitted to stockholders at any meeting thereof, or to
give or withhold consent to any corporate action, or, to receive
notice of meetings or other actions affecting stockholders (except as
provided in the Rights Agreement), or to receive dividends or
subscription rights, until the Right or Rights evidenced by this Right
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Certificate shall have been exercised as provided in the Rights
Agreement.
This Right Certificate shall not be valid or obligatory for
any purpose until it shall have been countersigned by the Rights
Agent.
WITNESS the facsimile signature of the proper officers of
the Company and its corporate seal. Dated as of September 29, 2003.
ATTEST: XXXXXX RUBBERMAID INC.
By:
_____________________________ ______________________________
Secretary Title:
Countersigned:
The Bank of New York
By:__________________________
Authorized Signature
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[Form of Reverse Side of Right Certificate]
FORM OF ASSIGNMENT
------------------
(To be executed by the registered holder if such
holder desires to transfer the Right Certificate.)
FOR VALUE RECEIVED _________________________________________
hereby sells, assigns and transfers unto _____________________________
(Please print name and address of transferee)
______________________________________________ this Right Certificate,
together with all right, title and interest therein, and does hereby
irrevocably constitute and appoint ________________________________
Attorney, to transfer the within Right Certificate on the books of the
within-named Company, with full power of substitution.
Dated: ____________ __, ____ ____________________________
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a
registered national securities exchange, a member of the National
Association of Securities Dealers, Inc., or a commercial bank, savings
association, credit union or trust company having an office or
correspondent in the United States or other eligible guarantor
institution which is a participant in a signature guarantee medallion
program.
Certificate
-----------
The undersigned hereby certifies by checking the appropriate
boxes that:
(1) the Rights evidenced by this Rights Certificate [ ] are
[ ] are not being sold, assigned or transferred by or on behalf of
a Person who is or was an Acquiring Person or an Affiliate or
Associate of any such Acquiring Person (as such terms are defined
pursuant to the Rights Agreement);
(2) after due inquiry and to the best knowledge of the
undersigned, it [ ] did [ ] did not acquire the Rights evidenced
by this Rights Certificate from any Person who is or was or
subsequently became an Acquiring Person or an Affiliate or Associate
of an Acquiring Person.
Dated: ____________ __, ____ ____________________________
Signature
A-4
NOTICE
------
The signature to the foregoing Assignment must correspond to
the name as written upon the face of this Right Certificate in every
particular, without alteration or enlargement or any change
whatsoever.
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FORM OF ELECTION TO PURCHASE
----------------------------
(To be executed if holder desires to
exercise the Right Certificate pursuant
to Section 11(a)(ii) of the Rights Agreement.)
To XXXXXX RUBBERMAID INC.
The undersigned hereby irrevocably elects to exercise
____________________ Rights represented by this Right Certificate to
purchase the shares of Common Stock or other securities or property
issuable upon the exercise of such 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 that may still be exercised pursuant to Section 11(a)(ii)
of the Rights Agreement shall be returned to the undersigned unless
such person requests that the Rights Certificate be registered in the
name of and delivered to:
(Please insert social security or other identifying number.)
(Complete only if the Rights Certificate is to be registered in
a name other than the undersigned's.)
(Please print name and address)
Dated: ____________ __, ____ ____________________________
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a
registered national securities exchange, a member of the National
Association of Securities Dealers, Inc., or a commercial bank, savings
association, credit union or trust company having an office or
correspondent in the United States or other eligible guarantor
institution which is a participant in a signature guarantee medallion
program.
A-6
[Form of Reverse Side of Rights Certificate continued]
Certificate
-----------
The undersigned hereby certifies that 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 or an Affiliate or Associate of any such
Acquiring Person (as such terms are defined pursuant to the Rights
Agreement);
(2) this Rights Certificate [ ] is [ ] is not being
sold, assigned and transferred by or on behalf of a Person who is or
was an Acquiring Person or an Affiliate or Associate of any such
Acquiring Person;
(3) after due inquiry and to the best knowledge of the
undersigned, it [ ] did [ ] did not acquire the Rights evidenced
by this Rights Certificate from any Person who is, was or subsequently
became an Acquiring Person or an Affiliate or Associate of an
Acquiring Person.
Dated: ____________ __, ____ ____________________________
Signature
NOTICE
------
The signature on the foregoing Forms of Assignment and
Election to Purchase and Certificates 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.
In the event the certification set forth above in the Form
of Assignment or the Form of Election to Purchase, as the case may be,
is not completed, the Company and the Rights Agent will deem the
Beneficial Owner of the Rights evidenced by this Rights Certificate to
be an Acquiring Person or an Affiliate or Associate thereof (as such
terms are defined in the Rights Agreement) and such Assignment or
Election to Purchase will not be honored.
A-7
EXHIBIT B
---------
XXXXXX RUBBERMAID INC.
SUMMARY OF RIGHTS TO PURCHASE
COMMON STOCK
On August 6, 1998, the Board of Directors of XXXXXX RUBBERMAID
INC. (the "Company") declared a dividend distribution of one Right for
each outstanding share of Common Stock, $1.00 par value (the "Common
Stock"), of the Company to the stockholders of record on October 31,
1998 (the "Record Date"). Each Right entitles the registered holder
to purchase from the Company one share of Common Stock at a price of
$200 per share (the "Purchase Price"), subject to adjustment. The
description and terms of the Rights are set forth in a Rights
Agreement (the "Rights Agreement") between the Company and First
Chicago Trust Company of New York, which was amended to remove First
Chicago Trust Company of New York as Rights Agent and to appoint The
Bank of New York as the new Rights Agent (the "Rights Agent"). The
Rights replaced the share purchase rights which were initially
distributed to the Company's stockholders by a dividend in 1988 and
which expired by their own terms on October 31, 1998.
Until the earlier to occur of (i) the tenth business day after a
public announcement that, without the prior consent of the Company, a
person or group of affiliated or associated persons acquired, or
obtained the right to acquire, beneficial ownership of 15% or more of
the outstanding shares of Common Stock of the Company (such person or
group being called an "Acquiring Person" and such date of first public
announcement being called the "Stock Acquisition Date"), or (ii) the
tenth business day after the commencement or announcement of an
intention to make a tender offer or exchange offer which would result
in any person or group of affiliated or associated persons becoming an
Acquiring Person (the earlier of such dates being called the
"Distribution Date"), the Rights will be evidenced, with respect to
any of the Company's Common Stock certificates outstanding as of the
Record Date, by such Common Stock certificate with a copy of this
Summary of Rights attached thereto. The Rights Agreement provides
that, until the Distribution Date, the Rights will be transferred with
and only with the Company's Common Stock. Until the Distribution Date
(or earlier redemption or expiration of the Rights), new Common Stock
certificates issued after the Record Date upon transfer or new
issuance of the Company's Common Stock will contain a notation
incorporating the Rights Agreement by reference. Until the
Distribution Date (or earlier redemption or expiration of the Rights),
the surrender for transfer of any of the Company's Common Stock
certificates outstanding as of the Record Date will also constitute
the transfer of the Rights associated with the Common Stock
represented by such certificate. As soon as practicable following the
Distribution Date, separate certificates evidencing the Rights
("Rights Certificates") will be mailed to holders of record of the
Company's Common Stock as of the close of business on the Distribution
Date and, thereafter, such separate Rights Certificates alone will
evidence the Rights.
B-1
The Rights are not exercisable until the Distribution Date. The
Rights will expire on October 31, 2008, unless earlier redeemed by the
Company as described below.
The Purchase Price payable, and the number of shares of Common
Stock or other securities or property issuable, upon exercise of the
Rights are subject to adjustment from time to time to prevent dilution
(i) in the event of a stock dividend on, or a subdivision, combination
or reclassification of the Common Stock, (ii) upon the grant to
holders of Common Stock of certain rights, options or warrants to
subscribe for shares of Common Stock or convertible securities at less
than the current market price of the Common Stock or (iii) upon the
distribution to holders of Common Stock of evidences of indebtedness
or assets (excluding (a) a regular periodic cash dividend or (b) a
dividend payable in Common Stock) or of subscription rights, options
or warrants (other than those referred to above).
In the event that a person becomes the beneficial owner of 15% or
more of the outstanding shares of Common Stock (i.e., becomes an
Acquiring Person), each holder of a Right, other than Rights
beneficially owned by the Acquiring Person (which will be void), will
have the right to receive upon exercise thereof, that number of shares
of Common Stock having a market value of two times the exercise price
of the Right (such right being called the "Flip-In" right).
In the event that, on or after the Stock Acquisition Date, the
Company were acquired in a merger or other business combination, or
50% or more of its assets or earning power were sold, proper provision
shall be made so that each holder of a Right shall thereafter have the
right to receive, upon the exercise thereof at the then current
exercise price of the Right, that number of shares of common stock of
the acquiring company which at the time of such transaction would have
a market value of two times the exercise price of the Right. In the
event that the Company were the surviving corporation in a merger
involving the Acquiring Person and the Common Stock were not changed
or exchanged, proper provision shall be made so that each holder of a
Right, other than Rights beneficially owned by the Acquiring Person
(which will be void), will thereafter have the right to receive upon
exercise that number of shares of the Common Stock having a market
value of two times the exercise price of the Right (such right being
called the "Flip-Over" right). The holder of a right will no longer
have a Flip-Over right if, and to the extent that, he has exercised
his Flip-In right.
With certain exceptions, no adjustment in the Purchase Price will
be required until cumulative adjustments require an adjustment of at
least 1% in such Purchase Price. No fractional shares will be issued
and, in lieu thereof, a cash payment will be made based on the market
price of the Common Stock on the last trading date prior to the date
of exercise.
At any time prior to the time that there is an Acquiring Person,
the Company may, at its option, redeem the Rights in whole but not in
part, at a price of $.001 per Right (the "Redemption Price").
Immediately upon the authorization of the redemption of the Rights by
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the Board of Directors of the Company, the Rights will terminate and
the only right of the holders of Rights will be to receive the
Redemption Price.
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.
The Board of Directors of the Company may amend the Rights
Agreement at any time prior to the time that there is an Acquiring
Person, provided that no amendment may adversely affect the interests
of the holders of the Rights.
A copy of the Rights Agreement has been filed with the Securities
and Exchange Commission as an Exhibit to a Registration Statement on
Form 8-A dated August 28, 1998, and an amendment to the Rights
Agreement has been filed with the Securities and Exchange Commission
as an Exhibit to a Registration Statement on Form 8-A/A dated
September 30, 2003. A copy of the Rights Agreement is available to
all Right holders free of charge from the Company. This summary
description of the Rights does not purport to be complete and is
qualified in its entirety by reference to the Rights Agreement, which
is hereby incorporated herein by reference.
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