EXHIBIT B
IPALCO ENTERPRISES, INC.
and
FIRST CHICAGO TRUST COMPANY OF NEW YORK
Rights Agent
RIGHTS AGREEMENT
Dated as of June 28, 1990
As Amended and Restated as of April 28, 1998
TABLE OF CONTENTS
Page
Section 1. Certain Definitions 1
Section 2. Appointment of Rights Agent 8
Section 3. Issue of Right Certificates 8
Section 4. Form of Right Certificates 11
Section 5. Countersignature and Registration 11
Section 6. Transfer, Split Up, Combination and
Exchange of Right Certificates;
Mutilated, Destroyed, Lost or Stolen
Right Certificates 12
Section 7. Exercise of Rights; Purchase Price;
Expiration Date of Rights 14
Section 8. Cancellation and Destruction of Right
Certificates 16
Section 9. Availability of Common Shares 17
Section 10. Common Shares Record Date 18
Section 11. Adjustment of Purchase Price, Number of
Shares or Number of Rights 19
Section 12. Certificate of Adjusted Purchase Price
or Number of Shares 31
Section 13. Consolidation, Merger or Sale or Transfer
of Assets or Earning Power 31
Section 14. Fractional Rights and Fractional Shares 35
Section 15. Rights of Action 36
Section 16. Agreement of Right Holders 37
Section 17. Right Certificate Holder Not Deemed a
Shareholder 38
Section 18. Concerning the Rights Agent 38
Section 19. Merger or Consolidation or Change of Name
of Rights Agent 40
Section 20. Duties of Rights Agent 41
Section 21. Change of Rights Agent 44
Section 22. Issuance of New Right Certificates 45
Section 23. Redemption 46
Section 24. Exchange 49
Section 25. Notice of Certain Events 49
Section 26. Notices 51
Section 27. Supplements and Amendments 52
Section 28. Additional Covenants 53
Section 29. Successors 54
Section 30. Benefits of this Agreement 54
Section 31. Severability 54
Section 32. Governing Law 54
Section 33. Counterparts 55
Section 34. Descriptive Headings 55
Signatures 56
Exhibit A - Form of Right Certificate
Exhibit B - Summary of Rights to Purchase Common Shares
RIGHTS AGREEMENT
Agreement, dated as of June 28, 1990, as amended and
restated as of April 28, 1998, between IPALCO Enterprises,
Inc., an Indiana corporation (the "Corporation"), and First
Chicago Trust Company of New York (the "Rights Agent").
The Board of Directors of the Corporation (the "Board
of Directors") has authorized and declared a dividend
distribution of one Common Share Purchase Right (hereinafter
referred to as a "Right") for each Common Share (as
hereinafter defined) of the Corporation outstanding and held
of record as of the Close of Business (as hereinafter
defined) on July 11, 1990 (the "Record Date"), each Right
representing the right to purchase one Common Share upon the
terms and subject to the conditions herein set forth, and
has further authorized and directed the issuance of one
Right (as such number may hereafter be adjusted pursuant to
the provisions of this Agreement) with respect to each
Common Share that shall become outstanding between the
Record Date and the earliest of the Distribution Date, the
Redemption Date and the Final Expiration Date (as such terms
are hereinafter defined).
Accordingly, in consideration of the premises and the
mutual agreements herein set forth, the parties hereby agree
as follows:
Section 1. Certain definitions. For purposes of this
Agreement, the following terms have the meanings indicated:
(a) "Acquiring Person" shall mean any Person who or
which, alone or together with all Affiliates and Associates
of such Person, shall be the Beneficial Owner of more than
15% of the Common Shares then outstanding, but shall not
include (a) the Corporation or any Related Person and
(b) any such Person who or which has become and is the
Beneficial Owner of more than 15% of the Common Shares then
outstanding solely as the result of (i) a change in the
aggregate number of Common Shares outstanding since the last
date on which such Person acquired Beneficial Ownership of
any Common Shares, unless subsequent to such reduction such
Person or any Affiliate or Associate of such Person shall
become the Beneficial Owner of any additional Common Shares
other than as a result of a stock dividend, stock split or
similar transaction effected by the Corporation in which all
shareholders are treated equally, (ii) the acquisition by
such Person or one or more of its Affiliates or Associates
of Beneficial Ownership of additional Common Shares if such
acquisition was made in the good faith belief that such
acquisition would not (A) cause the Beneficial Ownership by
such Person together with its Affiliates and Associates, to
exceed 15% of the Common Shares outstanding at the time of
such acquisition and such good faith belief was based on the
good faith reliance on information contained in publicly
filed reports or documents of the Corporation that are
inaccurate or out-of-date or (B) otherwise cause a
Distribution Date or the adjustment provided for in
Section 11(a) (ii) to occur, or (iii) the acquisition by
such Person or one or more of its Affiliates or Associates
of Beneficial Ownership of additional Common Shares if the
Board of Directors determines that such acquisition was made
in good faith without the knowledge by such Person or such
Person's Affiliates or Associates that such Person or such
Person's Affiliates or Associates would thereby become an
Acquiring Person, which determination of the Board of
Directors shall be conclusive and binding on such Person,
the Rights Agent, the holders of the Rights and all other
Persons. Notwithstanding clause (b)(ii) or (b)(iii) of the
prior sentence, if any Person that is not an Acquiring
Person due to such clause (b)(ii) or (b)(iii) does not
reduce its percentage of Beneficial Ownership of Common
Shares to 15% or less of the Common Shares outstanding by
the Close of Business on the tenth calendar day after notice
from the Corporation (the date of notice being the first
day) that such Person's Beneficial Ownership of Common
Shares would make it an Acquiring Person, such Person shall,
at the end of such ten calendar day period, become an
Acquiring Person (and such clause (b)(ii) or (b)(iii) shall
no longer apply to such Person). For purposes of this
definition, the determination whether any Person acted in
"good faith" shall be conclusively made by the Board of
Directors.
(b) the "Act" shall have the meaning set forth in
Section 9 hereof.
(c) "Affiliate" and "Associate" shall have the
respective meanings ascribed to such terms in Rule l2b-2 of
the General Rules and Regulations under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), as in
effect on the date of this Agreement as amended and
restated.
(d) A Person shall be deemed the "Beneficial Owner" of
and shall be deemed to "beneficially own" and shall be
deemed to have "Beneficial Ownership" of, any securities:
(i) which such Person or any of such Person's
Affiliates or Associates is deemed to beneficially own,
directly or indirectly within the meaning of Rule 13d-3 of
the General Rules and Regulations under the Exchange Act, as
in effect on the date of this Agreement as amended and
restated;
(ii) which such Person or any of such Person's
Affiliates or Associates has (A) the right to acquire
(whether such right is exercisable immediately or only after
the passage of time) pursuant to any agreement, arrangement
or understanding (written or oral) (other than customary
agreements with and between underwriters and selling group
members with respect to a bona fide public offering of
securities), or upon the exercise of conversion rights,
exchange rights, rights (other than these Rights), warrants
or options, or otherwise; provided, however, that a Person
shall not be deemed the Beneficial Owner of, or to
beneficially own, securities tendered pursuant to a tender
or exchange offer made by or on behalf of such Person or any
of such Person's Affiliates or Associates until such
tendered securities are accepted for purchase or exchange or
cease to be subject to withdrawal by the tendering security
holder; or (B) the right to vote or dispose of pursuant to
any agreement, arrangement or understanding (written or
oral); provided, however, that a Person shall not be deemed
the Beneficial Owner of, or to beneficially own, any
security if the agreement, arrangement or understanding
(written or oral) to vote such security (1) arises solely
from a revocable proxy or consent given to such Person in
response to a public proxy or consent solicitation made
pursuant to, and in accordance with, the applicable rules
and regulations promulgated under the Exchange Act and
(2) the Beneficial Ownership of such security is not also
then reportable on Schedule 13D under the Exchange Act (or
any comparable or successor report); or
(iii) which are beneficially owned, directly or
indirectly, by any other Person with which such Person or
any of such Person's Affiliates or Associates has any
agreement, arrangement or understanding (written or oral)
(other than customary agreements with and between
underwriters and selling group members with respect to a
bona fide public offering of securities) for the purpose of
acquiring, holding, voting (except to the extent
contemplated by the proviso to Section 1(d)(ii)(B)) or
disposing of any securities of the Corporation; provided,
however, that a Person shall not be deemed the Beneficial
Owner of, or to beneficially own, any security if such
Beneficial Ownership arises solely as a result of such
Person's status as a "clearing agency," as defined in
Section 3(a)(23) of the Securities Exchange Act of 1934, as
amended.
Notwithstanding anything in this definition of
Beneficial Ownership to the contrary, the phrase "then
outstanding," when used with reference to a Person's
Beneficial Ownership of securities of the Corporation, shall
mean the number of such securities then issued and
outstanding together with the number of such securities not
then actually issued and outstanding which such Person would
be deemed to own beneficially hereunder.
(e) "Business Day" shall mean any day other than a
Saturday, a Sunday, or a day on which banking institutions
in the State of New York are authorized or obligated by law
or executive order to close.
(f) "Close of Business" on any given date shall mean
5:00 P.M., eastern standard time, on such date; provided,
however, that if such date is not a Business Day "Close of
Business" shall mean 5:00 P.M., eastern standard time, on
the next succeeding Business Day.
(g) "Common Shares" when used with reference to the
Corporation prior to the occurrence of an event described in
Section 13(a), (b) or (c) shall mean the shares of common
stock, without par value, of the Corporation or any other
shares of capital stock of the Corporation into which such
common stock shall be reclassified or changed; provided,
however, "Common Shares" when used with reference to a
Person (other than the Corporation prior to an event
described in Section 13(a), (b) or (c)), shall mean shares
of capital stock of such Person (if such Person is a
corporation) of any class or series, or units of equity
interests in such Person (if such Person is not a
corporation) of any class or series, the terms of which do
not limit (as a maximum amount and not merely in
proportional terms) the amount of dividends or income
payable or distributable on such class or series or the
amount of assets distributable on such class or series upon
any voluntary or involuntary liquidation, dissolution or
winding up of such Person and do not provide that such class
or series is subject to redemption at the option of such
Person, or any shares of capital stock or units of equity
interests into which the foregoing shall be reclassified or
changed.
(h) "Distribution Date" shall mean the earlier of
(i) the Close of Business on the day the Corporation learns
that a Person has become an Acquiring Person or (ii) the
Close of Business on such date, if any, as may be designated
by the Board of Directors after the date of the commencement
by any Person (other than the Corporation or any Related
Person), of, or of the first public announcement of the
intention of any Person (other than the Corporation or any
Related Person), to commence, a tender or exchange offer the
consummation of which could result in any such Person
becoming the Beneficial Owner of Common Shares aggregating
more than 15% of the then outstanding Common Shares
(including any such date which is after the date of this
Agreement and prior to the issuance of the Rights).
(i) "Exchange Act" shall have the meaning set forth in
Section 1(c) hereof.
(j) "Final Expiration Date" shall have the meaning set
forth in Section 7 hereof.
(k) "Person" shall mean any individual, firm,
corporation, limited liability company, partnership, joint
venture, association, trust, unincorporated organization or
other entity, and shall include any successor (by merger or
otherwise) of such entity.
(l) "Purchase Price" shall have the meaning set forth
in Section 4 hereof.
(m) "Redemption Date" shall have the meaning set forth
in Section 3 hereof.
(n) "Redemption Price" shall have the meaning set
forth in Section 23 hereof.
(o) "Related Person" shall mean (i) any Subsidiary of
the Corporation, (ii) any employee benefit or stock
ownership plan of the Corporation or any of its Subsidiaries
or any entity holding Common Shares for or pursuant to the
terms of any such plan, or (iii) any Person who acquires
Common Shares from the Corporation or any other Related
Person in one or a series of related transactions, each of
which is approved by the Board of Directors; provided,
however, that if any Person who becomes a Related Person
solely by virtue of subsection (iii) above, or any Affiliate
or Associate of such Person, subsequently becomes the
Beneficial Owner of any additional Common Shares in a
transaction or transactions not approved by the Board of
Directors, such Person shall no longer be deemed a "Related
Person" with respect to all Common Shares of which it, or
any of its Affiliates or Associates, is the Beneficial
Owner.
(p) "Right Certificate" shall have the meaning set
forth in Section 3 hereof.
(q) "Share Acquisition Date" shall mean the first date
of public announcement by the Corporation or an Acquiring
Person that an Acquiring Person has become such.
(r) "Subsidiary" of any Person shall mean any
corporation or other entity of which a majority of the
voting power of the voting equity securities or equity
interest is owned, directly or indirectly, by such Person.
Section 2. Appointment of Rights Agent. The
Corporation hereby appoints the Rights Agent to act as agent
for the Corporation and the holders of the Rights (who, in
accordance with Section 3 hereof, shall prior to the
Distribution Date also be the holders of the Common Shares)
in accordance with the terms and conditions hereof, and the
Rights Agent hereby accepts such appointment. The
Corporation may from time to time appoint such co-Rights
Agents as it may deem necessary or desirable (the term
"Rights Agent" being used herein to refer, collectively, to
the Rights Agent together with any such co-Rights Agents).
The Corporation may appoint itself or a Subsidiary of the
Corporation as a co-Rights Agent at any time prior to a
Distribution Date. In the event the Corporation appoints
one or more co-Rights Agents, the respective duties of the
Rights Agent and any co-Rights Agents shall be as the
Corporation shall determine.
Section 3. Issue of Right Certificates.
(a) Until the Distribution Date, (i) the Rights will
be evidenced (subject to the provisions of Section 3(b)
hereof) by the certificates for Common Shares registered in
the names of the holders thereof (which certificates shall
also be deemed to be Right Certificates) and not by separate
Right Certificates, and (ii) the right to receive Right
Certificates will be transferable only in connection with
the transfer of Common Shares. As soon as practicable after
the Distribution Date, the Corporation will prepare and
execute, the Rights Agent will countersign, and the
Corporation will send or cause to be sent (and the Rights
Agent will, if requested, send) by first-class, postage-
prepaid maid, to each record holder of Common Shares as of
the Close of Business on the Distribution Date, at the
address of such holder shown on the records of the
Corporation, a Right Certificate, in substantially the form
of Exhibit A hereto (a "Right Certificate"), evidencing one
Right for each Common Share so held. As of the Distribution
Date, the Rights will be evidenced solely by such Right
Certificates.
(b) On the Record Date, or as soon as practicable
thereafter, the Corporation will send a copy of a Summary of
Rights to Purchase Common Shares, in substantially the form
of Exhibit B hereto (the "Summary of Rights"), by first-
class, postage-prepaid mail, to each record holder of Common
Shares as of the close of business on the Record Date, at
the address of such holder shown on the records of the
Corporation. With respect to certificates for Common Shares
outstanding as of the Record Date, until the Distribution
Date, the Rights will be evidenced by such certificates
registered in the names of the holders thereof. Until the
Distribution Date (or the earlier of the Redemption Date or
the Final Expiration Date), the surrender for transfer of
any certificate for Common Shares outstanding on the Record
Date, with or without a copy of the Summary of Rights
attached thereto, shall also constitute the transfer of the
Rights associated with the Common Shares represented
thereby.
(c) Certificates for Common Shares which become
outstanding (including, without limitation, reacquired
Common Shares referred to in the last sentence of this
paragraph (c)) after the Record Date but prior to the
earliest of the Distribution Date, the date the Rights are
redeemed as provided in Section 23 hereof (the "Redemption
Date") or the Final Expiration Date shall have impressed on,
printed on, written on or otherwise affixed to them the
following legend:
This certificate also evidences and entitles
the holder hereof to certain rights as set
forth in a Rights Agreement between IPALCO
Enterprises, Inc. and First Chicago Trust
Company of New York, dated as of June 28,
1990 (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 IPALCO
Enterprises, Inc. 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. IPALCO
Enterprises, Inc. will mail to the holder of
this certificate a copy of the Rights
Agreement without charge after receipt of a
written request therefor. As described in the
Rights Agreement, Rights issued to any Person
who becomes an Acquiring Person (as defined
in the Rights Agreement) shall become null
and void.
With respect to such certificates containing the foregoing
legend, until the Distribution Date, the Rights associated
with the Common Shares represented by such certificates
shall be evidenced by such certificates alone, and the
surrender for transfer of any such certificate shall also
constitute the transfer of the Rights associated with the
Common Shares represented thereby. Following the date of
the amendment and restatement of this Agreement, such
certificates may, but shall not be required to, bear a
legend reflecting such amendment and restatement. In the
event that the Corporation purchases or acquires any Common
Shares after the Record Date but prior to the Distribution
Date, any Rights associated with such Common Shares shall be
deemed cancelled and retired so that the Corporation shall
not be entitled to exercise any Rights associated with the
Common Shares which are no longer outstanding.
Notwithstanding this Section 3(c), neither the omission of a
legend nor the inclusion of a legend that makes reference to
a rights agreement other than this Agreement shall affect
the enforceability of any part of this Agreement or the
rights of any holder of Rights.
Section 4. Form of Right Certificates. The Right
Certificates (and the forms of election to purchase Common
Shares and of assignment to be printed on the reverse
thereof) shall be in substantially the same form set forth
as Exhibit A hereto and may have such marks of
identification or designation and such legends, summaries or
endorsements printed thereon as the Corporation 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. Subject to the provisions of Sections 7,
11 and 22 hereof, the Right Certificates shall be dated the
Distribution Date and shall entitle the holders thereof to
purchase such number of Common Shares as shall be set forth
therein at the price per Common Share set forth therein (the
"Purchase Price"), but the number of such Common Shares and
the Purchase Price shall be subject to adjustment as
provided herein.
Section 5. Countersignature and Registration. The
Right Certificates shall be executed on behalf of the
Corporation by its Chairman of the Board, its President, any
of its Vice Presidents, or its Treasurer, either manually or
by facsimile signature, shall have affixed thereto the
Corporation's seal or a facsimile thereof, and shall be
attested by the Secretary or any Assistant Secretary of the
Corporation, either manually or by facsimile signature. The
Right Certificates shall be manually countersigned by the
Rights Agent and shall not be valid for any purpose unless
countersigned. In case any officer of the Corporation who
shall have signed any of the Right Certificates shall cease
to be such officer of the Corporation before
countersignature by the Rights Agent and issuance and
delivery by the Corporation, such Right Certificates,
nevertheless, may be countersigned by the Rights Agent and
issued and delivered by the Corporation with the same force
and effect as though the person who signed such Right
Certificates had not ceased to be such officer of the
Corporation; and any Right Certificate may be signed on
behalf of the Corporation by any person who, at the actual
date of the execution of such Right Certificate, shall be a
proper officer of the Corporation to sign such Right
Certificate, although at the date of the execution of this
Agreement any such person was not such an officer.
Following the Distribution Date, the Rights Agent will
keep or cause to be kept, at its principal office, books for
registration and transfer of the Right Certificates issued
hereunder. Such books shall show the names and addresses of
the respective holders of the Right Certificates, the number
of Rights evidenced on its face by each of the Right
Certificates and the date of each of the Right Certificates.
Section 6. Transfer, Split Up, Combination and
Exchange of Right Certificates; Mutilated, Destroyed, Lost
or Stolen Right Certificates. Subject to the provisions of
Sections 7 and 14 hereof, at any time after the Close of
Business on the Distribution Date, and at or prior to the
Close of Business on the Final Expiration Date, any Right
Certificate or Right Certificates (other than Right
Certificates representing Rights that have become void
pursuant to Section 11(a)(iii) hereof or that have been
exchanged pursuant to Section 24 hereof) may be transferred,
split up, combined or exchanged for another Right
Certificate or Right Certificates, entitling the registered
holder to purchase a like number of Common Shares as the
Right Certificate or Right Certificates surrendered then
entitled each holder to purchase. Any registered holder
desiring to transfer, split up, combine or exchange any
Right Certificate or Right Certificates shall make such
request in writing delivered to the Rights Agent, and shall
surrender the Right Certificate or Right Certificates to be
transferred, split up, combined or exchanged at the office
of the Rights Agent designated for such purpose ; provided,
however, that neither the Rights Agent nor the Corporation
shall be obligated to take any action whatsoever with
respect to the transfer of any Right Certificate surrendered
for transfer until the registered holder shall have
completed and signed the certification contained in the form
of assignment on the reverse side of such Right 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
Corporation or the Rights Agent shall reasonably request.
Thereupon the Rights Agent shall, subject to Sections 7 and
14 hereof, countersign and deliver to the person entitled
thereto a Right Certificate or Right Certificates, as the
case may he, as so requested. The Corporation may require
payment of a sum sufficient to cover any tax or governmental
charge that may be imposed in connection with any transfer,
split up, combination or exchange of Right Certificates.
Upon receipt by the Corporation and the Rights Agent of
evidence reasonably satisfactory to them of the loss, theft,
destruction or mutilation of a Right Certificate, and, in
case of loss, theft or destruction, of indemnity or security
reasonably satisfactory to them, and, at the Corporation's
request, reimbursement to the Corporation and the Rights
Agent of all reasonable expenses incidental thereto, and
upon surrender to the Rights Agent and cancellation of the
Right Certificate if mutilated, the Corporation will make
and deliver a new Right Certificate of like tenor to the
Rights Agent for delivery to the registered holder in lieu
of the Right Certificate so lost, stolen, destroyed or
mutilated.
Notwithstanding any other provision hereof, the
Corporation and the Rights Agent may amend this Agreement to
provide for uncertificated Rights in addition to or in place
of Rights evidenced by Right Certificates.
Section 7. Exercise of Rights; Purchase Price;
Expiration Date of Rights.
(a) The registered holder of any Right Certificate may
exercise the Rights evidenced thereby (except as otherwise
provided herein) in whole or in part at any time after the
Distribution Date upon surrender of the Right Certificate,
with the form of election to purchase on the reverse side
thereof duly executed, to the Rights Agent at the office of
the Rights Agent designated for such purpose, together with
payment of the Purchase Price for each Common Share as to
which the Rights are exercised, at or prior to the earliest
of (i) the Close of Business on April 28, 2008 (the "Final
Expiration Date") or (ii) the time at which such Rights are
exchanged as provided in Section 24 hereof.
(b) The Purchase Price for each Common Share pursuant
to the exercise of a Right shall initially be $120.00, shall
be subject to adjustment from time to time as provided in
Sections 11 and 13 hereof and shall be payable in lawful
money of the United States of America in accordance with
paragraph (c) below. All references herein to the Purchase
Price shall mean the Purchase Price as in effect at the time
in question.
(c) Upon receipt of a Right Certificate representing
exercisable Rights, with the form of election to purchase
duly executed, accompanied by payment of the Purchase Price
for the shares to be purchased and an amount equal to any
applicable transfer tax required to be paid by the holder of
such Right Certificate in accordance with Section 9 hereof
by certified check, cashier's check or money order payable
to the order of the Corporation, the Rights Agent shall
thereupon promptly (i) either (A) requisition from any
transfer agent of the Common Shares certificates for the
number of Common Shares to be purchased and the Corporation
hereby irrevocably authorizes its transfer agent to comply
with all such requests, or (B) requisition from the
depositary agent depositary receipts representing such
number of Common Shares as are to be purchased (in which
case certificates for the Common Shares represented by such
receipts shall be deposited by the transfer agent with the
depositary agent) and the Corporation hereby directs the
depositary agent to comply with such request, (ii) when
appropriate, requisition from the Corporation the amount of
cash to be paid in lieu of issuance of fractional shares in
accordance with Section 14 hereof, (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 Right Certificate, registered in such name or names
as may be designated by such holder and (iv) when
appropriate, after receipt, deliver such cash to or upon the
order of the registered holder of such Right Certificate.
(d) In case the registered holder of any Right
Certificate shall exercise less than all the Rights
evidenced thereby, a new Right Certificate evidencing Rights
equivalent to the Rights remaining unexercised shall be
issued by the Rights Agent to the registered holder of such
Right Certificate or to his duly authorized assigns, subject
to the provisions of Section 14 hereof.
(e) The Corporation covenants and agrees that it will
cause to be reserved and kept available out of its
authorized and unissued Common Shares or any Common Shares
held in its treasury, free from preemptive rights or rights
of first refusal, the number of Common Shares that will be
sufficient to permit the exercise in full of all outstanding
Rights in accordance with this Section 7.
(f) Notwithstanding anything in this Agreement to the
contrary, neither the Rights Agent nor the Corporation shall
be obligated to undertake any action with respect to a
registered holder of any Right Certificates 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 Right 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 Corporation shall
reasonably request.
Section 8. Cancellation and Destruction of Right
Certificates. All Right Certificates surrendered for the
purpose of exercise, transfer, split up, combination or
exchange shall, if surrendered to the Corporation or to any
of its agents, be delivered to the Rights Agent for
cancellation or in cancelled form, or, if surrendered to the
Rights Agent, shall be cancelled by it, and no Right
Certificates shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this
Agreement. The Corporation shall deliver to the Rights
Agent for cancellation and retirement, and the Rights Agent
shall so cancel and retire, any other Right Certificate
purchased or acquired by the Corporation otherwise than upon
the exercise thereof. The Rights Agent shall deliver all
cancelled Right Certificates to the Corporation, or shall,
at the written request of the Corporation, provide the
Corporation with a microfiche copy thereof and destroy such
cancelled Right Certificates, and deliver a certificate of
destruction thereof to the Corporation.
Section 9. Availability of Common Shares.
(a) So long as the Common Shares issuable and
deliverable upon the exercise of Rights may be listed on any
national securities exchange, the Corporation shall use its
best efforts to cause, from and after such time as the
Rights become exercisable, all Common Shares reserved for
issuance to be listed on such exchange upon official notice
of issuance upon such exercise.
(b) The Corporation shall use its best efforts to
(i) file, as soon as practicable following the Distribution
Date, a registration statement under the Securities Act of
1933, as amended (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, and
(B) the earlier of the Final Expiration Date or the
Redemption Date. The Corporation 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; provided,
however, that the Corporation may temporarily suspend the
exercisability of the Rights in order to prepare and file
such registration statement and permit it to become
effective and upon any such suspension, the Corporation
shall issue a public announcement stating that the
exercisability of the Rights has been temporarily suspended,
as well as a public announcement at such time as the
suspension is no longer in effect. Notwithstanding any such
provision of this Agreement to the contrary, the Rights
shall not be exercisable in any jurisdiction unless the
requisite qualification in such jurisdiction shall have been
obtained.
(c) The Corporation covenants and agrees that it will
take all such action as may be necessary to ensure that all
Common Shares delivered upon exercise of Rights shall, at
the time of delivery of the certificates for such Common
Shares (subject to payment of the Purchase Price), be duly
and validly authorized and issued and fully paid and
nonassessable shares.
(d) The Corporation further covenants and agrees that
it will pay when due and payable any and all federal and
state transfer taxes and charges which may be payable in
respect of the issuance or delivery of the Right
Certificates or of any Common Shares upon the exercise of
Rights. The Corporation shall not, however, be required to
pay any transfer tax which may be payable in respect of any
transfer or delivery of Right Certificates to a person other
than, or the issuance or delivery of certificates or
depositary receipts for the Common Shares in a name other
than that of, the registered holder of the Right Certificate
evidencing Rights surrendered for exercise or to issue or to
deliver any certificates or depositary receipts for Common
Shares upon the exercise of any Rights until any such tax
shall have been paid (any such tax being payable by the
holder of such Right Certificate at the time of surrender)
or until it has been established to the Corporation's
reasonable satisfaction that no such tax is due.
Section 10. Common Shares Record Date. Each person in
whose name any certificate for Common Shares is issued upon
the exercise of Rights shall for all purposes be deemed to
have become the holder of record of the Common Shares
represented thereby on, and such certificate shall be dated,
the date upon which the Right Certificate evidencing such
Rights was duly surrendered and payment of the Purchase
Price (and any applicable transfer taxes) was made;
provided, however, that if the date of such surrender and
payment is a date upon which the Common Shares transfer
books of the Corporation are closed, such person shall be
deemed to have become the record holder on such succeeding
Business Day on which the Common Shares transfer books of
the Corporation are open. Prior to the exercise of the
Rights evidenced thereby, the holder of a Right Certificate
shall not be entitled to any rights of a holder of Common
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 Corporation, except as provided herein.
Section 11. Adjustment of Purchase Price; Number of
Shares or Number of Rights. The Purchase Price, the number
of Common 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) (i) In the event the Corporation shall at any time
after the date of this Agreement (A) declare a dividend on
the Common Shares payable in Common Shares, (B) subdivide
the outstanding Common Shares, (C) combine the outstanding
Common Shares into a smaller number of Common Shares or
(D) issue any shares of its capital stock in a
reclassification of the Common Shares (including any such
reclassification in connection with a consolidation or
merger in which the Corporation is the continuing or
surviving corporation), except as otherwise provided in this
Section 11(a), the Purchase Price in effect at the time of
the record date for such dividend or of the effective date
of such subdivision, combination or reclassification, and
the number and kind of shares of capital stock issuable on
such date, shall be proportionately adjusted so that the
holder of any Right exercised after such time shall be
entitled to receive the aggregate number and kind of shares
of capital stock which, if such Right had been exercised
immediately prior to such date and at a time when the Common
Shares transfer books of the Corporation were open, he would
have owned upon such exercise and been entitled to receive
by virtue of such dividend, subdivision, combination or
reclassification; provided, however, that in no event shall
the consideration to be paid upon the exercise of one Right
be less than the aggregate par value of the shares of
capital stock of the Corporation issuable upon exercise of
one Right.
(ii) Subject to Section 24 of this Agreement, in the
event that any Person, together with any Affiliates or
Associates of such Person, becomes an Acquiring Person,
then each holder of a Right shall thereafter have a right to
receive, upon exercise thereof in accordance with the terms
of this Agreement and in lieu of the number of Common Shares
for which the Right is then exercisable, such number of
Common Shares of the Corporation as shall equal the result
obtained by (x) multiplying the then current Purchase Price
by the number of Common Shares for which a Right is then
exercisable and dividing that product by (y) 50% of the then
current per share market price of the Corporation's Common
Shares (determined pursuant to Section 11(d) hereof) on the
date such Person became an Acquiring Person. In the event
that any Person shall become an Acquiring Person and the
Rights shall then be outstanding, the Corporation shall not
take any action which would eliminate or diminish the
benefits intended to be afforded by the Rights.
(iii) From and after the time any Person becomes an
Acquiring Person, any Rights that are or were acquired or
beneficially owned by (A) such Acquiring Person (or any
Associate or Affiliate of such Acquiring Person), (B) a
transferee of an Acquiring Person (or of any Associate or
Affiliate of such Acquiring Person) who becomes a transferee
after the Acquiring Person becomes such (other than pursuant
to the penultimate sentence of the definition of "Acquiring
Person") or (C) a transferee of an Acquiring Person (or of
any Associate or Affiliate of such Acquiring Person) who
becomes a transferee prior to or concurrently with the
Acquiring Person becoming such and receives such Rights
pursuant to either (x) a transfer (whether or not for
consideration) from the Acquiring Person to holders of
equity interests in such Acquiring Person or to any Person
with whom the Acquiring Person has any continuing agreement,
arrangement or understanding regarding the transferred
rights or (y) a transfer which the Board of Directors has
determined is a part of a plan, arrangement or understanding
which has as a primary purpose or effect the avoidance of
this Section 11(a)(iii), 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. No
Right Certificate shall be issued pursuant to Section 3 that
represents Rights beneficially owned by an Acquiring Person
whose Rights would be void pursuant to the preceding
sentence or any Associate or Affiliate thereof; no Right
Certificate shall be issued at any time upon the transfer of
any Rights to an Acquiring Person whose Rights would be void
pursuant to the preceding sentence or any Associate or
Affiliate thereof or to any nominee of such Acquiring
Person, Associate or Affiliate; and any Right Certificate
delivered to the Rights Agent for transfer to an Acquiring
Person whose Rights would be void pursuant to the preceding
sentence or any Associate or Affiliate thereof shall be
cancelled. The Corporation shall use all reasonable efforts
to ensure that the provisions of this Section 11(a)(iii) are
complied with, but shall have no liability to any holder of
any Right certificate or any other Person as a result of its
failure to make any determinations with respect to an
Acquiring Person or its Affiliate or Associate, or any
transferee thereof, hereunder.
(iv) In the event that there shall not be sufficient
Common Shares authorized and unissued, to permit the
exercise in full of the Rights in accordance with the
foregoing subparagraph (ii), the Corporation shall take all
such action as may be necessary to authorize additional
Common Shares for issuance upon exercise of the Rights.
However, if the Corporation is unable to cause the
authorization of additional Common Shares within 90 calendar
days after the occurrence of an event in Section 11(a)(ii),
then, notwithstanding anything in this Agreement to the
contrary, the Corporation shall determine (such
determination to be made in good faith by the Board of
Directors and evidenced by a statement provided to the
Rights Agent) the excess of the value of the Common Shares
issuable upon the exercise of a Right over the Purchase
Price (such excess being hereinafter referred to as the
"Spread") and shall be obligated to deliver, upon the
surrender of such Right and without requiring payment of the
Purchase Price, Common Shares (to the extent available) and
cash (to the extent permitted by applicable law and any
agreements or instruments to which the Corporation is a
party in effect immediately prior to the first occurrence of
an event in Section 11 (a)(ii)) in an amount equal to the
Spread. To the extent that any legal or contractual
restrictions prevent the Corporation from paying the full
amount of cash payable in accordance with the foregoing
sentence, the Corporation shall pay to holders of the Rights
as to which such payments are payable all amounts which are
not then restricted on a pro rata basis and shall continue
to make payments on a pro rata basis as funds become
available until the full amount due to each such Right
holder has been paid.
(b) In case the Corporation shall fix a record date
for the issuance of rights, options or warrants to all
holders of Common Shares entitling them (for a period
expiring within 45 calendar days after such record date) to
subscribe for or purchase Common Shares (or shares having
the same rights, privileges and preferences as the Common
Shares ("equivalent common shares")) or securities
convertible into Common Shares or equivalent common shares
at a price per Common Share or equivalent common share (or
having a conversion price per share, if a security
convertible into Common Shares or equivalent common shares)
less than the then current per share market price of the
Common Shares (as defined in Section 11(d)) on such record
date, the Purchase Price to be in effect after such record
date shall be determined by multiplying the Purchase Price
in effect immediately prior to such record date by a
fraction, the numerator of which shall be the number of
Common Shares outstanding on such record date plus the
number of Common Shares which the aggregate offering price
of the total number of Common Shares and/or equivalent
common shares so to be offered (and/or the aggregate initial
conversion price of the convertible securities so to be
offered) would purchase at such current market price and the
denominator of which shall be the number of Common Shares
outstanding on such record date plus the number of
additional Common Shares and/or equivalent common shares to
be offered for subscription or purchase (or into which the
convertible securities so to be offered are initially
convertible); provided, however, that in no event shall the
consideration to be paid upon the exercise of one Right be
less than the aggregate par value of the shares of capital
stock of the Corporation issuable upon exercise of one
Right. In case such subscription price may be paid in a
consideration part or all of which shall be in a form other
than cash, the value of such consideration shall be as
determined in good faith by the Board of Directors of the
Corporation, whose determination shall be described in a
statement filed with the Rights Agent. Common Shares owned
by or held for the account of the Corporation shall not be
deemed outstanding for the purpose of any such computation.
Such adjustment shall be made successively whenever such a
record date is fixed; and in the event that such rights,
options or warrants are not so issued, the Purchase Price
shall be adjusted to be the Purchase Price which would then
be in effect if such record date had not been fixed.
(c) In case the Corporation shall fix a record date
for the making of a distribution to all holders of the
Common Shares (including any such distribution made in
connection with a consolidation or merger in which the
Corporation is the continuing or surviving corporation) of
evidences of indebtedness or assets (other than a regular
cash dividend or a dividend payable in Common Shares) or
subscription rights or warrants (excluding those referred to
in Section 11(b) hereof), the Purchase Price to be in effect
after such record date shall be determined by multiplying
the Purchase Price in effect immediately prior to such
record date by a fraction, the numerator of which shall be
the then current per share market price of the Common Shares
on such record date less the fair market value (as
determined in good faith by the Board of Directors of the
Corporation, whose determination shall be described in a
statement filed with the Rights Agent) of the portion of the
assets or evidences of indebtedness so to be distributed or
of such subscription rights or warrants applicable to one
Common Share and the denominator of which shall be such
current per share market price of the Common Shares;
provided, however, that in no event shall the consideration
to be paid upon the exercise of one Right be less than the
aggregate par value of the shares of capital stock of the
Corporation to be issued upon exercise of one Right. Such
adjustments shall be made successively whenever such a
record date is fixed; and in the event that such
distribution is not so made, the Purchase Price shall again
be adjusted to be the Purchase Price which would then be in
effect if such record date had not been fixed.
(d) (i) For the purpose of any computation hereunder,
the "current per share market price" of any security (a
"Security" for the purpose of this Section 11(d)(i)) on any
date shall be deemed to be the average of the daily closing
prices per share of such Security for the 30 consecutive
Trading Days (as such term is hereinafter defined)
immediately prior to such date; provided, however, that in
the event that the current per share market price of the
Security is determined during a period following the
announcement by the issuer of such Security of (A) a
dividend or distribution on such Security payable in shares
of such Security or securities convertible into such shares,
or (B) any subdivision, combination or reclassification of
such Security and prior to the expiration of 30 Trading Days
after the ex-dividend date for such dividend or
distribution, or the record date for such subdivision,
combination of reclassification, then, and in each such
case, the current per share market price shall be
appropriately adjusted to reflect the current market price
per share equivalent of such Security. The closing price
for each day shall be the last sale price, regular way, or,
in case no such sale takes place on such day, the average of
the closing bid and asked prices, regular way, in either
case as reported 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 Security is not listed or admitted to trading on the
New York Stock Exchange, as reported in the principal
consolidated transaction reporting system with respect to
securities listed on the principal national securities
exchange on which the Security is listed or admitted to
trading or, if the Security is not listed or admitted to
trading on any national securities exchange, the last quoted
price or, if not so quoted, the average of the high bid and
low asked prices in the over-the-counter market, as reported
by the National Association of Securities Dealers, Inc.
Automated Quotations System ("NASDAQ") or such other system
then in use, or, if on any such date the Security is not
quoted by any such organization, the average of the closing
bid and asked prices as furnished by a professional market
maker making a market in the Security selected by the Board
of Directors of the Corporation. The term "Trading Day"
shall mean a day on which the principal national securities
exchange on which the Security is listed or admitted to
trading is open for the transaction of business or, if the
Security is not listed or admitted to trading on any
national securities exchange, a Business Day.
(ii) For the purpose of any computation hereunder,
the "current per share market price" of the Common Shares
shall be determined in accordance with the method set forth
in Section 11(d)(i). If the Common Shares are not publicly
held or so listed or traded, "current per share market
price" shall mean the fair value per share as determined in
good faith by the Board of Directors, whose determination
shall be described in a statement filed with the Rights
Agent.
(e) No adjustment in the Purchase Price shall be
required unless such adjustment would require an increase or
decrease of at least 1% in the Purchase Price; provided,
however, that any adjustments which by reason of this
Section 11(e) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment.
All calculations under this Section 11 shall be made to the
nearest cent or to the nearest one ten-thousandth of a
Common Share or one ten-thousandth of any other share or
security as the case may be. Notwithstanding the first
sentence of this Section 11(e), any adjustment required by
this Section 11 shall be made no later than the earlier of
(i) three years from the date of the transaction which
requires such adjustment or (ii) the date of the expiration
of the right to exercise any Rights.
(f) If as a result of an adjustment made pursuant to
Section 11 (a) hereof, the holder of any Right thereafter
exercised shall become entitled to receive any shares of
capital stock of the Corporation other than Common Shares,
thereafter the number of such other shares so receivable
upon exercise of any Right shall be subject to adjustment
from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to
the Common Shares contained in Section 11(a) through (c),
inclusive, and the provisions of Sections 7, 9, 10 and 13
with respect to the Common Shares shall apply on like terms
to any such other shares.
(g) All Rights originally issued by the Corporation
subsequent to any adjustment made to the purchase price
hereunder shall evidence the right to purchase, at the
adjusted Purchase Price, the number of Common Shares
purchasable from time to time hereunder upon exercise of the
Rights, all subject to further adjustment as provided
herein.
(h) Unless the Corporation 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 Common Shares (calculated to
the nearest one ten-thousandth of a Common Share) obtained
by (i) multiplying (x) the number of Common Shares 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) The Corporation may elect on or after the date of
any adjustment of the Purchase Price to adjust the number of
Rights, in substitution for any adjustment in the number of
Common Shares purchasable upon the exercise of a Right.
Each of the Rights outstanding after such adjustment of the
number of Rights shall be exercisable for the number of
Common Shares for which a Right was exercisable immediately
prior to such adjustment. Each Right held of record prior
to such adjustment of the number of Rights shall become that
number of 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 Corporation shall make a public
announcement of its election to adjust the number of Rights,
indicating the record date for the adjustment, and, if known
at the time, the amount of the adjustment to be made. This
record date may be the date on which the purchase price is
adjusted or any day thereafter, but, if the Right
Certificates have been issued, shall be at least 10 days
later than the date of the public announcement. If Right
Certificates have been issued, upon each adjustment of the
number of Rights pursuant to this Section 11(i), the
Corporation shall, as promptly as practicable, cause to be
distributed to holders of record of Right Certificates on
such record date Right Certificates evidencing, subject to
Section 14 hereof, the additional Rights to which such
holders shall be entitled as a result of such adjustment,
or, at the option of the Corporation, shall cause to be
distributed to such holders of record in substitution and
replacement for the Right Certificates held by such holders
prior to the date of adjustment, and upon surrender thereof,
if required by the Corporation, new Right Certificates
evidencing all the Rights to which such holders shall be
entitled after such adjustment. Right Certificates so to be
distributed shall be issued, executed and countersigned in
the manner provided for herein and shall be registered in
the names of the holders of record of Right Certificates on
the record date specified in the public announcement.
(j) Irrespective of any adjustment or change in the
Purchase Price or the number of Common Shares issuable upon
the exercise of the Rights, the Right Certificates
theretofore and thereafter issued may continue to express
the Purchase Price and the number of Common Shares which
were expressed in the initial Right Certificates issued
hereunder.
(k) Before taking any action that would cause an
adjustment reducing the Purchase Price below the then par
value, if any, of the Common Shares issuable upon exercise
of the Rights, the Corporation shall take any corporate
action which may, in the opinion of its counsel, be
necessary in order that the Corporation may validly and
legally issue fully paid and nonassessable Common Shares at
such adjusted Purchase Price.
(l) In any case in which this Section 11 shall
require that an adjustment in the Purchase Price be made
effective as of a record date for a specified event, the
Corporation may elect to defer until the occurrence of such
event the issuing to the holder of any Right exercised after
such record date of the Common Shares and other capital
stock or securities of the Corporation, if any, issuable
upon such exercise over and above the Common Shares and
other capital stock or securities of the Corporation, if
any, issuable upon such exercise on the basis of the
Purchase Price in effect prior to such adjustment; provided,
however, that the Corporation shall deliver to such holder a
due xxxx or other appropriate instrument evidencing such
holder's right to receive such additional shares upon the
occurrence of the event requiring such adjustment.
(m) Anything in this Section 11 to the contrary
notwithstanding, the Corporation shall be entitled to make
such reductions in the Purchase Price, in addition to those
adjustments expressly required by this Section 11, as and to
the extent that it in its sole discretion shall determine to
be advisable in order that any consolidation or subdivision
of the Common Shares, issuance wholly for cash of any Common
Shares at less than the current market price, issuance
wholly for cash of Common Shares or securities which by
their terms are convertible into or exchangeable for Common
Shares, dividends on Common Shares payable in Common Shares
or issuance of rights, options or warrants referred to
hereinabove in Section 11 (b), hereafter made by the
Corporation to holders of its Common Shares shall not be
taxable to such shareholders.
(n) In the event that at any time after the date of
this Agreement and prior to the Distribution Date, the
Corporation shall (i) declare or pay any dividend on the
Common Shares payable in Common Shares or (ii) effect a
subdivision, combination or consolidation of the Common
Shares (by reclassification or otherwise than by payment of
dividends in Common Shares) into a greater or lessor number
of Common Shares, then in any such case (y) the number of
Common Shares purchasable after such event upon proper
exercise of each Right shall be determined by multiplying
the number of Common Shares so purchasable immediately prior
to such event by a fraction, the numerator of which is the
number of Common Shares outstanding immediately before such
event and the denominator of which is the number of Common
Shares outstanding immediately after such event, and
(z) each Common Share outstanding immediately after such
event shall have issued with respect to it that number of
Rights which each Common Share outstanding immediately prior
to such event had issued with respect to it. The adjustments
provided for in this Section 11(n) shall be made
successively whenever such a dividend is declared or paid or
such a 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 Sections 11 and 13 hereof, the Corporation shall
promptly (a) prepare a certificate setting forth such
adjustment, and a brief statement of the facts accounting
for such adjustment, (b) file with the Rights Agent and with
each transfer agent for the Common Shares a copy of such
certificate and (c) mail a brief summary thereof to each
holder of a Right Certificate in accordance with Section 25
hereof. The Rights Agent shall be fully protected in
relying on such certificate and shall not be deemed to have
knowledge of any adjustment unless and until it shall have
received such certificate.
Section 13. Consolidation, Merger or Sale or Transfer
of Assets or Earning Power. Following a Distribution Date,
in the event that, directly or indirectly, (a) the
Corporation shall consolidate with, or merge with and into,
any Acquiring Person or any Affiliate or Associate of an
Acquiring Person or the Corporation's Common Shares shall be
exchanged for the shares of any Acquiring Person or any
Associate or Affiliate of an Acquiring Person pursuant to a
mandatory share exchange pursuant to any provision of law,
(b) any Acquiring Person or any Affiliate or Associate of an
Acquiring Person shall consolidate with the Corporation, or
merge with and into the Corporation and the Corporation
shall be the continuing or surviving corporation of such
merger or consolidation and, in connection with such merger
or consolidation, all or part of the Common Shares shall be
changed into or exchanged for stock or other securities of
any Acquiring Person or any Affiliate or Associate of an
Acquiring Person (or the Corporation) or cash or any other
property, or (c) the Corporation shall sell or otherwise
transfer (or one or more of its Subsidiaries shall sell or
otherwise transfer), in one or more transactions, assets or
earning power (including without limitation securities
creating any obligation on the part of the Corporation
and/or any of its Subsidiaries) aggregating 50% or more of
the assets or earning power of the Corporation and its
Subsidiaries (taken as a whole) to any Acquiring Person or
Affiliate or Associate of an Acquiring Person, then, and in
each such case, proper provision shall be made so that
(i) each holder of a Right (except as otherwise provided
herein) shall thereafter have the right to receive, upon the
exercise thereof in accordance with the terms of this
Agreement and in lieu of Common Shares of the Corporation
(if the Corporation is not the surviving or continuing
corporation in a transaction described in clause (a) or
(b)), such number of validly authorized and issued, fully
paid, nonassessable and freely tradeable Common Shares of
such other Person (including the Corporation as successor
thereto or as the surviving corporation), free and clear of
any liens, encumbrances and other adverse claims and not
subject to any rights of call or first refusal, as shall be
equal to the result obtained by (A) multiplying the then
current Purchase Price by the number of Common Shares for
which a Right is then exercisable (without taking into
account any adjustment previously made pursuant to
Section 11(a)(ii) hereof) and dividing that product by (B)
50% of the then current per share market price of the Common
Shares of such other Person (determined pursuant to
Section 11(d) hereof) on the date of consummation of such
consolidation, merger, sale or transfer; (ii) the Issuer (as
defined below) of such Common Shares shall thereafter be
liable for, and shall assume, by virtue of such
consolidation, merger, sale or transfer, all the obligations
and duties of the Corporation pursuant to this Agreement;
(iii) the term "Corporation" shall thereafter be deemed to
refer to such Issuer; and (iv) such Issuer shall take such
steps (including, but not limited to, the reservation of a
sufficient number of its Common Shares) in connection with
such consummation as may be necessary to assure that the
provisions hereof shall thereafter be applicable, as nearly
as reasonably may be, in relation to the Common Shares
thereafter deliverable upon the exercise of the Rights. For
purposes of this Section 13, "Issuer" shall mean (x) in the
case of any event described in Sections 13(a) or (b) above,
the Person that is the continuing, surviving, resulting or
acquiring Person (including the Corporation as the
continuing or surviving corporation of a transaction
described in Section 13(b) above), and (y) in the case of
any event described in Section 13(c) above, the Person that
is the party receiving the greatest portion of the assets or
earning power (including without limitation securities
creating any obligation on the part of the Corporation
and/or any of its Subsidiaries) transferred pursuant to such
transaction or transactions; provided, however, that, in any
such case, (A) if (1) no class of equity security of such
Person is, at the time of such merger, consolidation or
transaction and has been continuously over the preceding 12-
month period, registered pursuant to Section 12 of the
Exchange Act, and (2) such Person is a Subsidiary, directly
or indirectly, of another Person, a class of equity security
of which is and has been so registered, the term "Issuer"
shall mean such other Person; and (B), in case such Person
is a Subsidiary, directly or indirectly, of more than one
Person, a class of equity security of two or more of which
are and have been so registered, the term "Issuer" shall
mean whichever of such Persons is the issuer of the equity
security having the greatest aggregate market value.
Notwithstanding the foregoing, if the Issuer in any of the
events listed above is not a corporation or other legal
entity having outstanding equity securities, then, and in
each such case, (i) if the Issuer is directly or indirectly
wholly owned by a corporation or other legal entity having
outstanding equity securities, then all references to Common
Shares of the Issuer shall be deemed to be references to the
Common Shares of the corporation or other legal entity
having outstanding equity securities which ultimately
controls the Issuer, and (ii) if there is no such
corporation or other legal entity having outstanding equity
securities, (Y) proper provision shall be made so that the
Issuer shall create or otherwise make available for purposes
of the exercise of the Rights in accordance with the terms
of this Agreement, a type or types of security or securities
having a fair market value at least equal to the economic
value of the Common Shares which each holder of a Right
would have been entitled to receive if the Issuer had been a
corporation or other legal entity having outstanding equity
securities; and (Z) all other provisions of this Agreement
shall apply to the issuer of such securities as if such
securities were Common Shares. The Corporation shall not
consummate any such consolidation, merger, sale or transfer
unless prior thereto the Issuer shall have a sufficient
number of authorized Common Shares (or other securities as
contemplated above) which have not been issued or reserved
for issuance to permit the exercise in full of the Rights in
accordance with this Section 13 and unless prior to such
consummation the Corporation and such Issuer shall have
executed and delivered to the Rights Agent a supplemental
agreement providing for the terms set forth in this
Section 13 and further providing that as soon as practicable
after the consummation of any such consolidation, merger,
sale or transfer, the Issuer 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 Final
Expiration Date; and
(ii) deliver to holders of the Rights historical
financial statements for the Issuer and each of its
Affiliates which comply in all respects with the
requirements for registration on Form 10 under the
Exchange Act.
The Corporation shall not enter into any transaction of the
kind referred to in this Section 13 if at the time of such
transaction there are any rights, warrants, instruments or
securities outstanding or any agreements or arrangements
which, as a result of the consummation of such transaction,
would eliminate or substantially diminish the benefits
intended to be afforded by the Rights. The provisions of
this Section 13 shall similarly apply to successive mergers
or consolidations or sales or other transfers.
Section 14. Fractional Rights and Fractional Shares.
(a) The Corporation shall not be required to issue
fractions of Rights or to distribute Right Certificates
which evidence fractional Rights. In lieu of such fractional
Rights, there shall be paid to the registered holders of the
Right Certificates with regard to which such fractional
Rights would otherwise be issuable, an amount in cash equal
to the same fraction of the current market value of a whole
Right. For the purposes of this Section 14(a), the current
market value of a whole Right shall be the closing price of
the Rights for the Trading Day immediately prior to the date
on which such fractional Rights would have been otherwise
issuable. The closing price for any day shall be the last
sale price, regular way, or, in case no such sale takes
place on such day, the average of the closing bid and asked
prices, regular way, in either case as reported in the
principal consolidated transaction reporting system with
respect to securities listed or admitted to trading on the
New York Stock Exchange or, if the Rights are not listed or
admitted to trading on the New York Stock Exchange, as
reported in the principal consolidated transaction reporting
system with respect to securities listed on the principal
national securities exchange on which the Rights are listed
or admitted to trading or, if the Rights are not listed or
admitted to trading on any national securities exchange, the
last quoted price or, if not so quoted, the average of the
high bid and low asked prices in the over-the-counter
market, as reported by NASDAQ or such other system then in
use or, if on any such date the Rights are not quoted by any
such organization, the average of the closing bid and asked
prices as furnished by a professional market maker making a
market in the Rights selected by the Board of Directors of
the Corporation. If on any such date no such market maker
is making a market in the Rights, the fair value of the
Rights on such date as determined in good faith by the Board
of Directors of the Corporation shall be used.
(b) The Corporation shall not be required to issue
fractions of Common Shares upon exercise of the Rights or to
distribute certificates which evidence fractional Common
Shares. In lieu of fractional Common Shares, the
Corporation shall pay to the registered holders of Right
Certificates at the time such Rights are exercised as herein
provided an amount in cash equal to the same fraction of the
current market value of one Common Share. For the purposes
of this Section 14(b), the current market value of a Common
Share shall be the closing price of a Common Share (as
determined pursuant to Section 11(d) hereof) for the Trading
Day immediately prior to the date of such exercise.
(c) The holder of a Right by the acceptance of the
Right expressly waives his right to receive any fractional
Rights or any fractional shares upon exercise of a Right
(except as provided above).
Section 15. Rights of Action. All rights of action in
respect of this Agreement, excepting the rights of action
given to the Rights Agent under Section 18 hereof, are
vested in the respective registered holders of the Right
Certificates (and, prior to the Distribution Date, the
registered holders of the Common Shares); and any registered
holder of any Right Certificate (or, prior to the
Distribution Date, of the Common Shares), without the
consent of the Rights Agent or of the holder of any other
Right Certificate (or, prior to the Distribution Date, of
the Common Shares), may, in his own behalf and for his own
benefit, enforce, and may institute and maintain any suit,
action or proceeding against the Corporation to enforce, or
otherwise act in respect of, his right to exercise the
Rights evidenced by such Right Certificate in the manner
provided in such Right Certificate and in this Agreement.
Without limiting the foregoing or any remedies available to
the holders of Rights, it is specifically acknowledged that
the holders of Rights would not have an adequate remedy at
law for any breach of this Agreement and will be entitled to
specific performance of the obligations under, and
injunctive relief against actual or threatened violations of
the obligations of any Person subject to, this Agreement.
Section 16. Agreement of Right Holders. Every holder
of a Right, by accepting the same, consents and agrees with
the Corporation and the Rights Agent and with every other
holder of a Right that:
(a) prior to the Distribution Date, the Rights will be
transferable only in connection with the transfer of the
Common Shares;
(b) after the Distribution Date, the Right
Certificates shall be transferable only on the registry
books of the Rights Agent if surrendered at the principal
office of the Rights Agent, duly endorsed or accompanied by
a proper instrument of transfer; and
(c) the Corporation and the Rights Agent may deem and
treat the Person in whose name the Right Certificate (or,
prior to the Distribution Date, the associated Common Shares
certificate) is registered as the absolute owner thereof and
of the Rights evidenced thereby (notwithstanding any
notations of ownership or writing on the Right Certificates
or the associated Common Shares certificate made by anyone
other than the Corporation or the Rights Agent) for all
purposes whatsoever, and neither the Corporation nor the
Rights Agent shall be affected by any notice to the
contrary.
Section 17. Right Certificate Holder Not Deemed a
Shareholder. No holder, as such, of any Right Certificate
shall be entitled to vote, receive dividends or be deemed
for any purpose the holder of the Common Shares, or any
other securities of the Corporation which may at any time be
issuable on the exercise of the Rights represented thereby,
nor shall anything contained herein or in any Right
Certificate be construed to confer upon the holder of any
Right Certificate, as such, any of the rights of a
shareholder of the Corporation or any right to vote for the
election of directors or upon any matter submitted to
shareholders at any meeting thereof, or to give or withhold
consent to any corporate action, or to receive notice of
meetings or other actions affecting shareholders (except as
provided in Section 25 hereof), or to receive dividends or
subscription rights, or otherwise, until the Right or Rights
evidenced by such Right Certificate shall have been
exercised in accordance with the provisions hereof.
Section 18. Concerning the Rights Agent. The
Corporation agrees to pay to the Rights Agent reasonable
compensation for all services rendered by it hereunder and,
from time to time, on demand of the Rights Agent, its
reasonable expenses and counsel fees and other disbursements
incurred in the administration and execution of this
Agreement and the exercise and performance of its duties
hereunder. The Corporation also agrees to indemnify the
Rights Agent for, and to hold it harmless against, any loss,
liability, or expense, incurred, in the absence of
negligence, bad faith or willful misconduct on the part of
the Rights Agent, for anything done or omitted by the Rights
Agent in connection with the acceptance and administration
of this Agreement, including the costs and expenses of
defending against any claim of liability in the premises.
In no case shall the Corporation be liable with respect to
any action, proceeding, suit or claim against the Rights
Agent unless the Rights Agent shall have notified the
Corporation, by letter or by facsimile confirmed by letter,
of the assertion of any action, proceeding, suit or claim
against the Rights Agent, promptly after the Rights Agent
shall have notice of any such assertion of an action,
proceeding, suit or claim or have been served with the
summons or other first legal action, proceeding suit or
claim. The Corporation shall be entitled to participate at
its own expense in the defense of any such action,
proceeding, suit or claim, and, if the Corporation so
elects, the Corporation shall assume the defense of any such
action, proceeding, suit or claim. In the event that the
Corporation assumes such defense, the Corporation shall not
thereafter be liable for the fees and expenses of any
additional counsel retained by the Rights Agent, so long as
the Corporation shall retain counsel satisfactory to the
Rights Agent, in the exercise of its reasonable judgment, to
defend such action, proceeding, suit or claim. The Rights
Agent agrees not to settle any litigation in connection with
any action, proceeding, suit or claim with respect to which
it may seek indemnification from the Corporation without the
prior written consent of the Corporation.
The Rights Agent shall be protected and shall incur no
liability for, or in respect of any action taken, suffered
or omitted by it in connection with, its administration of
this Agreement in reliance upon any Right Certificate or
certificate for the Common Shares or for other securities of
the Corporation, instrument of assignment or transfer, power
of attorney, endorsement, affidavit, letter, notice,
direction, consent, certificate, statement, or other paper
or document believed by it to be genuine and to be signed,
executed and, where necessary, verified or acknowledged, by
the proper Person or Persons, or otherwise upon the advice
of counsel as set forth in Section 20 hereof.
Section 19. Merger or Consolidation or Change of Name
of Rights Agent. Any corporation into which the Rights
Agent or any successor Rights Agent may be merged or with
which it may be consolidated, or any corporation resulting
from any merger or consolidation to which the Rights Agent
or any successor Rights Agent shall be a party, or any
corporation succeeding to the stock transfer or corporate
trust business of the Rights Agent or any successor Rights
Agent, shall be the successor to the Rights Agent under this
Agreement without the execution or filing of any paper or
any further act on the part of any of the parties hereto,
provided that such corporation would be eligible for
appointment as a successor Rights Agent under the provisions
of Section 21 hereof. In case at the time such successor
Rights Agent shall succeed to the agency created by this
Agreement any of the Right Certificates shall have been
countersigned but not delivered, any such successor Rights
Agent may adopt the countersignature of the predecessor
Rights Agent and deliver such Right Certificates so
countersigned; and in case at that time any of the Right
Certificates shall not have been countersigned, any
successor Rights Agent may countersign such Right
Certificates either in the name of the predecessor Rights
Agent or in the name of the successor Rights Agent; and in
all such cases such Right Certificates shall have the full
force provided in the Right Certificates and in this
Agreement.
In case at any time the name of the Rights Agent shall
be changed and at such time any of the Right Certificates
shall have been countersigned but not delivered, the Rights
Agent may adopt the countersignature under its prior name
and deliver Right Certificates so countersigned; and in case
at that time any of the Right Certificates shall not have
been countersigned, the Rights Agent may countersign such
Right Certificates either in its prior name or in its
changed name; and in all such cases such Right Certificates
shall have the full force provided in the Right Certificates
and in this Agreement.
Section 20. Duties of Rights Agent. The Rights Agent
undertakes the duties and obligations imposed by this
Agreement upon the following terms and conditions, by all of
which the Corporation and the holders of Right Certificates,
by their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel
(who may be legal counsel for the Corporation), 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) Whenever in the performance of its duties under
this Agreement the Rights Agent shall deem it necessary or
desirable that any fact or matter be proved or established
by the Corporation prior to taking or suffering any action
hereunder, such fact or matter (unless other evidence in
respect thereof be herein specifically prescribed) may be
deemed to be conclusively proved and established by a
certificate signed by any one of the Chairman of the Board,
the President, any Vice President, the Secretary or the
Treasurer of the Corporation and delivered to the Rights
Agent; and such certificate shall be full authorization to
the Rights Agent for any action taken or suffered in good
faith by it under the provisions of this Agreement in
reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the
Corporation and any other Person only for its own
negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by
reason of any of the statements of fact or recitals
contained in this Agreement or in the Right Certificates
(except its countersignature thereof) or be required to
verify the same, but all such statements and recitals are
and shall be deemed to have been made by the Corporation
only.
(e) The Rights Agent shall not be under any
responsibility in respect of the validity of this Agreement
or the execution and delivery hereof (except the due
execution hereof by the Rights Agent) or in respect of the
validity or execution of any Right Certificate (except its
countersignature thereof); nor shall it be responsible for
any breach by the Corporation of any covenant or condition
contained in this Agreement or in any Right Certificate; nor
shall it be responsible for any change in the exercisability
of the Rights (including the Rights becoming void pursuant
to Section 11(a)(iii) hereof) or any adjustment in the terms
of the Rights (including the manner, method or amount
thereof) provided for in Sections 3, 11, 13, 23 or 24, or
the ascertaining of the existence of facts that would
require any such change or adjustment (except with respect
to the exercise of Rights evidenced by Right Certificates
after actual notice that such change or adjustment is
required); nor shall it by any act hereunder be deemed to
make any representation or warranty as to the authorization
or reservation of any Common Shares to be issued pursuant to
this Agreement or any Right Certificate or as to whether any
Common Shares will, when issued, be validly authorized and
issued, fully paid and nonassessable.
(f) The Corporation agrees that it will perform,
execute, acknowledge and deliver or cause to be performed,
executed, acknowledged and delivered all such further and
other acts, instruments and assurances as may reasonably be
required by the Rights Agent for the carrying out or
performing by the Rights Agent of the provisions of this
Agreement.
(g) The Rights Agent is hereby authorized and directed
to accept instructions with respect to the performance of
its duties hereunder from any one of the Chairman of the
Board, the President, any Vice President, the Secretary or
the Treasurer of the Corporation, and to apply to such
officers for advice or instructions in connection with its
duties, and it shall not be liable for any action taken or
suffered by it in good faith in accordance with instructions
of any such officer or for any delay in acting while waiting
for those instructions. Any application by the Rights Agent
for written instructions from the Corporation may, at the
option of the Rights Agent, set forth in writing any action
proposed to be taken or omitted by the Rights Agent under
this Agreement and the date on and/or after which such
action shall be taken or such omission shall be effective.
The Rights Agent shall not be liable for any action taken
by, or omission of, the Rights Agent in accordance with a
proposal included in any such application on or after the
date specified in such application (which date shall not be
less than five Business Days after the date any such officer
of the Corporation actually receives such application,
unless any such officer shall have consented in writing to
an earlier date) unless, prior to taking any such action (or
the effective date in the case of an omission), the Rights
Agent shall have received written instructions in response
to such application specifying the action to be taken or
omitted.
(h) The Rights Agent and any shareholder, director,
officer or employee of the Rights Agent may buy, sell or
deal in any of the Rights or other securities of the
Corporation or become pecuniarily interested in any
transaction in which the Corporation may be interested, or
contract with or lend money to the Corporation 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
Corporation or for any other legal entity.
(i) The Rights Agent may execute and exercise any of
the rights or powers hereby vested in it or perform any duty
hereunder either itself or by or through its attorneys or
agents, and the Rights Agent shall not be answerable or
accountable for any act, default, neglect or misconduct of
any such attorneys or agents or for any loss to the
Corporation resulting from any such act, default, neglect or
misconduct, provided reasonable care was exercised in the
selection and continued employment thereof.
Section 21. Change of Rights Agent. The Rights Agent
or any successor Rights Agent may resign and be discharged
from its duties under this Agreement upon 30 days' notice in
writing mailed to the Corporation and to each transfer agent
of the Common Shares by registered or certified mail, and to
the holders of the Right Certificates by first-class mail.
The Corporation may remove the Rights Agent or any successor
Rights Agent upon 30 days' notice in writing, mailed to the
Rights Agent or successor Rights Agent, as the case may be,
and to each transfer agent of the Common Shares by
registered or certified mail, and to the holders of the
Right Certificates by first-class mail. If the Rights Agent
shall resign or be removed or shall otherwise become
incapable of acting, the Corporation shall appoint a
successor to the Rights Agent. If the Corporation shall
fail to make such appointment within a period of 30 days
after giving notice of such removal or after it has been
notified in writing of such resignation or incapacity by the
resigning or incapacitated Rights Agent or by the holder of
a Right Certificate who shall, with such notice, submit his
Right Certificate for inspection by the Corporation), 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 Corporation or by such a court, shall be
(i) a corporation organized and doing business under the
laws of the United States (or of any other state of the
United States so long as such corporation is authorized to
do business as a banking institution), in good standing,
which is authorized under such laws to exercise corporate
trust or stock transfer powers and is subject to supervision
or examination by federal or state authority and which has
at the time of its appointment as Rights Agent a combined
capital and surplus of at least $50 million or (ii) a
subsidiary of a corporation described in clause (i) of this
sentence. 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
Corporation shall file notice thereof in writing with the
predecessor Rights Agent and each transfer agent of the
Common Shares, and mail a notice thereof in writing to the
registered holders of the Right Certificates. Failure to
give any notice provided for in this Section 21, however, or
any defect therein, shall not affect the legality or
validity of the resignation or removal of the Rights Agent
or the appointment of the successor Rights Agent, as the
case may be.
Section 22. Issuance of New Right Certificate.
Notwithstanding any of the provisions of this Agreement or
of the Rights to the contrary, the Corporation may, at its
option, issue new Right Certificates evidencing Rights in
such form as may be approved by its Board of Directors to
reflect any adjustment or change in the Purchase Price and
the number or kind or class of shares or other securities or
property purchasable under the Right Certificates made in
accordance with the provisions of this Agreement.
Section 23. Redemption.
(a) The Board of Directors may, at its option, at any
time prior to the earlier of (i) the Final Expiration Date
and (ii) such time as a Person becomes an Acquiring Person,
redeem all but not less than all the then outstanding Rights
at a redemption price of $.01 per Right, appropriately
adjusted to reflect any stock split, stock dividend or
similar transaction occurring after the date hereof (such
redemption price being hereinafter referred to as the
"Redemption Price"). The redemption of the Rights by the
Board of Directors may be made effective at such time on
such basis and with such conditions as the Board of
Directors in its sole discretion may establish.
(b) Immediately upon the action of the Board of
Directors of the Corporation ordering the redemption of the
Rights pursuant to subsection (a) of this Section 23, and
without any further action and without any notice, the right
to exercise the Rights will terminate and the only right
thereafter of the holders of Rights shall be to receive the
Redemption Price. The Corporation may, at its option pay
the Redemption Price in cash, Common Shares (based upon the
current per share market price of the Common Shares
(determined pursuant to Section 11(d) hereof) at the time of
redemption) or any other form of consideration deemed
appropriate by the Board of Directors. The Corporation
shall promptly give public notice of any such redemption;
provided, however, that the failure to give, or any defect
in, any such notice shall not affect the validity of such
redemption. Within 10 days after such action of the Board of
Directors ordering the redemption of the Rights pursuant to
paragraph (a), the Corporation shall mail a notice of
redemption to all the holders of the then outstanding Rights
at their last addresses as they appear upon the registry
books of the Rights Agent or, prior to the Distribution
Date, on the registry books of the transfer agent for the
Common Shares. Any notice which is mailed in the manner
herein provided shall be deemed given, whether or not the
holder receives the notice. Each such notice of redemption
will state the method by which the payment of the Redemption
Price will be made. Neither the Corporation nor any of its
Affiliates or Associates may redeem, acquire or purchase for
value any Rights at any time in any manner other than that
specifically set forth in this Section 23 or in Section 24
hereof, and other than in connection with the purchase of
Common Shares prior to the Distribution Date.
Section 24. Exchange.
(a) The Board of Directors of the Corporation may, at
its option, at any time after any person becomes an
Acquiring Person, exchange all or part of the then
outstanding and exercisable Rights (which shall not include
Rights that have become void pursuant to the provisions of
Section 11(a)(iii) hereof) for Common Shares at an exchange
ratio of one Right for one-half of the Common Shares that
would be issuable at such time upon the exercise of one
Right in accordance with Section 7 hereof (such exchange
ratio being hereinafter referred to as the "Exchange
Ratio"). Notwithstanding the foregoing, the Board of
Directors shall not be empowered to effect such exchange at
any time after any Person (other than the Corporation, any
Subsidiary of the Corporation, any employee benefit plan of
the Corporation or any such Subsidiary, or any entity
holding Common Shares for or pursuant to the terms of any
such plan), together with all Affiliates and Associates of
such person, becomes the Beneficial Owner of 50% or more of
the Common Shares then outstanding.
(b) Any action of the Board of Directors ordering the
exchange of any Rights pursuant to subsection (a) of this
Section 24 shall be irrevocable and, immediately upon the
action of the Board of Directors ordering the exchange of
any Rights pursuant to subsection (a) of this Section 24 and
without any further action and without any notice, the right
to exercise such Rights shall terminate and the only right
thereafter of a holder of such Rights shall be to receive
that number of Common Shares equal to the number of such
Rights held by such holder multiplied by the Exchange Ratio.
The Corporation shall promptly give public notice of any
such exchange; provided, however, that the failure to give,
or any defect in, such notice shall not affect the validity
of such exchange. The Corporation promptly shall mail a
notice of any such exchange to all of the holders of such
Rights at their last addresses as they appear upon the
registry books of the Rights Agent. Any notice which is
mailed in the manner herein provided shall be deemed given,
whether or not the holder receives the notice. Each such
notice of exchange will state the method by which the
exchange of the Common Shares or other securities for Rights
will be effected and, in the event of any partial exchange,
the number of Rights which will be exchanged. Any partial
exchange shall be effected pro rata based on the number of
Rights (other than Rights which have become void pursuant to
the provisions of Section 11(a)(iii) hereof) held by each
holder of Rights.
(c) In any exchange pursuant to this Section 24, the
Corporation, at its option, may substitute equivalent common
shares, as such term is defined in Section 11(h) hereof, for
Common Shares exchangeable for Rights, as appropriately
adjusted to reflect adjustments in the voting rights of the
Common Shares pursuant to the terms thereof, so that the
fraction of an equivalent common share delivered in lieu of
each Common Share shall have the same voting rights as one
Common Share.
(d) In the event that there shall not be sufficient
Common Shares issued but not outstanding or authorized but
unissued to permit any exchange of Rights as contemplated in
accordance with this Section 24, the Corporation shall take
all such action as may be necessary to authorize additional
Common Shares for issuance upon exchange of the Rights.
(e) The Corporation shall not be required to issue
fractions of Common Shares or to distribute certificates
which evidence fractional Common Shares. In lieu of such
fractional Common Shares, the Corporation shall pay to the
registered holders of the Right Certificates with regard to
which such fractional Common Shares would otherwise be
issuable an amount in cash equal to the same fraction of the
current market value of a whole Common Share. For the
purposes of this paragraph (e), the current market value of
a whole Common Share shall be the closing price of a Common
Share (as determined pursuant to Section 11(d) hereof) for
the Trading Day immediately prior to the date of exchange
pursuant to this Section 24.
Section 25. Notice of Certain Events.
(a) At any time following the Distribution Date, in
case the Corporation shall propose (i) to pay any dividend
payable in stock of any class to the holders of its Common
Shares or to make any other distribution to the holders of
its Common Shares (other than a regular quarterly cash
dividend), (ii) to offer to the holders of its Common Shares
rights or warrants to subscribe for or to purchase any
additional Common Shares or shares of stock of any class or
any other securities, rights or options, (iii) to effect
any reclassification of its Common Shares, (iv) to effect
any consolidation or merger into or with, or to effect any
sale or other transfer (or to permit one or more of its
Subsidiaries to effect any sale or other transfer), in one
or more transactions, of 50% or more of the assets or
earning power of the Corporation and its Subsidiaries (taken
as a whole) to, any other Person, or (v) to effect the
liquidation, dissolution or winding up of the Corporation,
then, in each such case, the Corporation shall give to each
holder of a Right Certificate, in accordance with Section 26
hereof, a notice of such proposed action, which shall
specify the record date for the purposes of such stock
dividend, or distribution of rights or warrants, or the date
on which such reclassification, consolidation, merger, sale,
transfer, liquidation, dissolution, or winding up is to take
place and the date of participation therein by the holders
of the Common Shares, if any such date is to be fixed, and
such notice shall be so given in the case of any action
covered by clause (i) or (ii) above at least 10 days prior
to the record date for determining holders of the Common
Shares for purposes of such action, and in the case of any
such other action, at least 10 days prior to the date of the
taking of such proposed action or the date of participation
therein by the holders of the Common Shares, whichever shall
be the earlier.
(b) In case any event set forth in Section 11(a)(ii)
hereof shall occur, then the Corporation shall as soon as
practicable thereafter give to each holder of a Right
Certificate, in accordance with Section 26 hereof, a notice
of the occurrence of such event, which notice shall describe
such event and the consequences of such event to holders of
Rights under Section 11(a)(ii) hereof.
Section 26. Notices. Notices or demands authorized by
this Agreement to be given or made by the Rights Agent or by
the holder of any Right Certificate to or on the Corporation
shall be sufficiently given or made if sent by first-class
mail, postage prepaid, addressed (until another address is
filed in writing with the Rights Agent) as follows:
IPALCO Enterprises, Inc.
Xxx Xxxxxxxx Xxxxxx
Xxxx Xxxxxx Xxx 0000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxxx
Chairman of the Board and
President
Subject to the provisions of Section 21 hereof, any notice
or demand authorized by this Agreement to be given or made
by the Corporation or by the holder of any Right Certificate
to or on the Rights Agent shall be sufficiently given or
made if sent by first-class mail, postage prepaid, addressed
(until another address is filed in writing with the
Corporation) as follows:
First Chicago Trust Company of New York
000 Xxxxxxxxxx Xxxx., Xxxxx 0000
Xxxxxx Xxxx, XX 00000
Attention: Tenders and Exchanges
Administration
Notices or demands authorized by this Agreement to be given
or made by the Corporation or the Rights Agent to the holder
of any Right Certificate shall be sufficiently given or made
if sent by first-class mail, postage prepaid, addressed to
such holder at the address of such holder as shown on the
registry books of the Corporation prior to issuance of Right
Certificates; otherwise, at the address of such holder as
shown on the registry books of the Rights Agent.
Section 27. Supplements and Amendments. Prior to the
Distribution Date, if the Corporation so directs, the
Corporation and the Rights Agent shall supplement or amend
any provision of this Agreement in any manner which the
Corporation may deem desirable without the approval of any
holders of Rights or certificates representing Common
Shares. From and after the Distribution Date, if the
Corporation so directs, the Corporation, upon approval by
the Board of Directors and the Rights Agent shall supplement
or amend this Agreement without the approval of any holders
of Rights or Certificates representing Common Shares in
order (i) to cure any ambiguity, (ii) to correct or
supplement any provision contained herein which may be
defective or inconsistent with any other provisions herein,
(iii) to shorten or lengthen any time period hereunder, or
(iv) to change or supplement the provisions hereunder in any
manner which the Corporation, upon such approval, may deem
desirable, including without limitation the addition of
other events requiring adjustment to the Rights under
Sections 11 or 13 or procedures relating to the redemption
of the Rights, which change, amendment or supplement shall
not adversely affect the interests of the holders of Rights
Certificates (other than an Acquiring Person or an Affiliate
or Associate of any such Person); provided, however, that
this Agreement may not be supplemented or amended pursuant
to this sentence to lengthen, pursuant to clause (iii) of
this sentence, any time period unless such lengthening is
specifically contemplated hereby or is for the purpose of
protecting, enhancing or clarifying the rights of, or the
benefits to, the holders of Rights. Upon the delivery of a
certificate from the President or any Vice President of the
Corporation which states that the proposed supplement or
amendment is in compliance with the terms of this
Section 27, the Rights Agent shall execute such supplement
or amendment; provided, however, that the failure or refusal
of the Rights Agent to execute such supplement or amendment
shall not affect the validity or effective date of any
supplement or amendment adopted by the Corporation.
Notwithstanding anything in this Agreement to the contrary,
no supplement or amendment shall be made which decreases the
stated Redemption Price or the period of time remaining
until the Final Expiration Date.
Section 28. Additional Covenants.
(a) Notwithstanding any other provision of this
Agreement, no adjustment to the number of Common Shares (or
fractions of a share) or other securities for which a Right
is exercisable or any similar or other adjustment shall be
made or be effective if such adjustment would have the
effect of reducing or limiting the benefits the holders of
the Rights would have had absent such adjustment, including
the benefits under Sections 11 and 13 and this Section 28,
unless the terms of this Agreement are amended so as to
preserve such benefits.
(b) The Corporation covenants and agrees that, after
the Distribution Date, except as permitted by Section 27, it
shall not take (or permit any Subsidiary of the Corporation
to take) any action if at the time such action is taken it
is intended or reasonably foreseeable that such action will
reduce or otherwise limit the benefits the holders of the
Rights would have had absent such action, including the
benefits under Sections 11 and 13 and this Section 28. Any
action taken by the Corporation during any period after any
Person becomes an Acquiring Person but prior to the
Distribution Date shall be null and void unless such action
could be taken under this Section 28(b) from and after the
Distribution Date. The Corporation shall not consummate any
transaction described in Section 13(a), (b) or (c) if any
Issuer (as defined in Section 13) of Common Shares for which
Rights may be exercised after such transactions in
accordance with Section 13 shall have taken any action that
reduces or otherwise limits the benefits the holders of the
Rights would have had absent such action, including the
benefits under this Section 28.
Section 29. Successors. All the covenants and
provisions of this Agreement by or for the benefit of the
Corporation or the Rights Agent shall bind and inure to the
benefit of their respective successors and assigns
hereunder.
Section 30. Benefits of this Agreement. Nothing in
this Agreement shall be construed to give to any Person or
corporation other than the Corporation, the Rights Agent and
the registered holders of the Right Certificates (and, prior
to the Distribution Date, the Common Shares) any legal or
equitable right, remedy or claim under this Agreement; but
this Agreement shall be for the sole and exclusive benefit
of the Corporation, the Rights Agent and the registered
holders of the Right Certificates (and, prior to the
Distribution Date, the Common Shares).
Section 31. Severability. If any term, provision,
covenant or restriction of this Agreement is held by a court
of competent jurisdiction or other authority to be invalid,
void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Agreement
shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
Section 32. Governing Law. THIS AGREEMENT AND EACH
RIGHT CERTIFICATE ISSUED HEREUNDER SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER THE LAWS OF THE STATE OF INDIANA AND FOR
ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF SUCH STATE APPLICABLE TO
CONTRACTS TO BE MADE AND PERFORMED ENTIRELY WITHIN SUCH
STATE; PROVIDED, HOWEVER, THAT THE CONTRACTUAL PROVISIONS
PERTAINING TO THE RIGHTS AGENT CONTAINED IN SECTIONS 18, 19,
20 AND 21 OF THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.
Section 33. Counterparts. This Agreement may be
executed in any number of counterparts and each of such
counterparts shall for all purposes be deemed to be an
original, and all such counterparts shall together
constitute but one and the same instrument.
Section 34. Descriptive Headings. Descriptive
headings of the several Sections of this Agreement are
inserted for convenience only and shall not control or
affect the meaning or construction of any of the provisions
hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and attested, all as of the
day and year first above written.
IPALCO ENTERPRISES, INC.
By: /s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Secretary and General Counsel
Attest:
By: /s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx, Assistant Secretary
FIRST CHICAGO TRUST COMPANY
OF NEW YORK
By:/s/ Xxxxxx X'Xxxxx
Xxxxxx X'Xxxxx
Assistant Vice President
Attest:
By:/s/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx
Customer Service Officer
EXHIBIT A
Form of Right Certificate
Certificate No. R- ______ Rights
NOT EXERCISABLE AFTER APRIL 28, 2008 OR EARLIER IF
REDEMPTION OR EXCHANGE OCCURS. THE RIGHTS ARE SUBJECT TO
REDEMPTION AT $.01 PER RIGHT AND TO EXCHANGE ON THE TERMS
SET FORTH IN THE RIGHTS AGREEMENT.
Right Certificate
IPALCO ENTERPRISES, 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 June 28, 1990 as amended
and restated as of April 28, 1998 (the "Rights Agreement"),
between IPALCO Enterprises, Inc., an Indiana corporation
(the "Corporation"), and First Chicago Trust Company of New
York, (the "Rights Agent"), to purchase from the Corporation
at any time after the Distribution Date (as such term is
defined in the Rights Agreement) and prior to 5:00 p.m.,
eastern standard time, on April 28, 2008 at the office of
the Rights Agent designated for such purpose, or at the
office of its successor as Rights Agent, one fully paid
nonassessable share of the Common Stock, without par value,
of the Corporation (the "Common Shares"), at a purchase
price of $120.00 per Common 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 Common Shares which may be purchased upon
exercise hereof) set forth above, and the Purchase Price set
forth above, are the number and Purchase Price as of
April 28, 1998, based on the Common Shares as constituted at
such date. As provided in the Rights Agreement, the
Purchase Price and the number of Common Shares which may be
purchased upon the exercise of the Rights evidenced by this
Right Certificate are subject to modification and adjustment
upon the happening of certain events.
If the Rights evidenced by this Rights Certificate are
at any time beneficially owned by an Acquiring Person or an
Affiliate or Associate of an Acquiring Person (as such terms
are defined in the Rights Agreement), such Rights shall be
null and void and nontransferable and the holder of any such
Right (including any purported transferee or subsequent
holder) shall not have any right to exercise or transfer any
such Right.
This Right Certificate is subject to all of the terms,
provisions and conditions of the Rights Agreement, which
terms, provisions and conditions are incorporated herein by
this 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 Corporation and of the holders
of the Right Certificates. Copies of the Rights Agreement
are on file at the principal executive offices of the
Corporation and the above-mentioned offices 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 Common Shares as the Rights evidenced by the Right
Certificate or Right Certificates surrendered shall have
entitled such holder to purchase. If this Right Certificate
shall be exercised in part, the holder shall be entitled to
receive upon surrender hereof another Right Certificate or
Right Certificates for the number of whole Rights not
exercised. In no event will certificates for fractional
Rights be issued.
Subject to the provisions of the Rights Agreement, the
Rights evidenced by this Certificate (i) may be redeemed in
whole, but not in part, by the Corporation at a redemption
price of $.01 per Right or (ii) may be exchanged in whole or
in part for half of the number of securities for which each
Right is then exercisable per Right.
No fractional Common Shares 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 the Common Shares or of any other securities
of the Corporation which may at any time be issuable on the
exercise hereof, nor shall anything contained in the Rights
Agreement or herein be construed to confer upon the holder
hereof, as such, any of the rights of a shareholder of the
Corporation or any right to vote for the election of
directors or upon any matter submitted to shareholders at
any meeting thereof, or to give or withhold consent to any
corporate action, or to receive notice of meetings or other
actions affecting shareholders (except as provided in the
Rights Agreement), or to receive dividends or subscription
rights, or otherwise, until the Right or Rights evidenced by
this Right Certificate shall have been exercised 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 Corporation, and its
corporate seal. Dated as of _________ __, ____.
ATTEST: IPALCO ENTERPRISES, INC.
By:
Secretary President
Countersigned:
First Chicago Trust Company of New York
By:
Authorized Signature
Form of Reverse Side of Right Certificate
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder
desires to transfer the Right Certificate.)
FOR VALUE RECEIVED ______________________ hereby sells,
assigns and 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 Corporation, with full power of
substitution.
Dated: _______________, __ __
__________________________
Signature
Signature Guaranteed:
Signatures must be guaranteed by an eligible guarantor
institution which is a participant in a Securities Transfer
Association recognized signature guarantee program (most
banks, credit unions and other financial institutions will
be participants in a recognized program).
______________________________________________________________
CERTIFICATE
The undersigned hereby certifies that (1) Rights
evidenced by this Right Certificate are not beneficially
owned by an Acquiring Person or an Affiliate or Associate
thereof (as defined in the Rights Agreement), (2) this Right
Certificate is not being sold, assigned or transferred to or
on behalf of any such Acquiring Person, Affiliate or
Associate and (3) after inquiry and to the best knowledge of
the undersigned, the undersigned did not acquire the Rights
evidenced by this Right Certificate from any Person who is
or was an Acquiring Person or an Affiliate or Associate
thereof.
_________________________
Signature
____________________________________________________________
Form of Reverse Side of Right Certificate -- continued
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to
exercise the Right Certificate.)
To IPALCO ENTERPRISES, INC.:
The undersigned hereby irrevocably elects to exercise
____________ Rights represented by this Right Certificate to
purchase the Common Shares issuable upon the exercise of such
Rights and requests that certificates for such Common Shares
be issued in the name of:
Please insert social security
or other identifying number: ________________________
____________________________________________________________________
(Please print name and address)
If such number of Rights shall not be all the Rights
evidenced by this Right Certificate, a new Right Certificate
for the balance remaining of such Rights shall be registered
in the name of and delivered to:
Please insert social security
or other identifying number: ________________________________
(Please print name and address)
Dated: _______________, __ __
___________________________
Signature
Signature Guaranteed:
Signatures must be guaranteed by an eligible guarantor
institution which is a participant in a Securities Transfer
Association recognized signature guarantee program (most
banks, credit unions and other financial institutions will
be participants in a recognized program).
Form of Reverse Side of Right Certificate -- continued
________________________________________________________________
CERTIFICATE
The undersigned hereby certifies that the Rights
evidenced by this Right Certificate are not beneficially
owned by an Acquiring Person or an Affiliate or Associate
thereof (as defined in the Rights Agreement).
_____________________________
Signature
_________________________________________________________________
NOTICE
The signature in the foregoing Forms of Assignment and
Election must conform to the name as written upon the face
of this Right Certificate in every particular, without
alteration or enlargement or any change whatsoever.
In the event the certification set forth above in the
Form of Assignment or the Form of Election to Purchase, as
the case may be, is not completed, the Corporation and the
Rights Agent will deem the beneficial owner of the Rights
evidenced by this Right Certificate to be an Acquiring
person or an Affiliate or Associate thereof (as defined in
the Rights Agreement) and such Assignment or Election to
Purchase will not be honored.
EXHIBIT B
[The following summary is a summary of the Rights Plan after
being amended and restated on April 28, 1998 and is intended
for informational purposes only. A summary of the
provisions of the Rights Plan dated June 28, 1990 prior to
the amendment and restatement of the Rights Plan was
distributed to shareholders after the adoption of the Rights
Plan. Distribution of this summary is not required for
purposes of the Rights Plan.]
SUMMARY OF RIGHTS TO PURCHASE COMMON SHARES
On June 26, 1990, the Board of Directors of IPALCO
Enterprises, Inc. (the "Company") declared a dividend of one
common share purchase right (a "Right" or "Rights") for each
outstanding share of all common stock, no par value (the
"Common Shares"), of the Company. The dividend was payable
on July 11, 1990 (the "Record Date") to the shareholders of
record as of that date. If and when the Rights become
exercisable, each Right will entitle the registered holder
to purchase from the Company one Common Share at a purchase
price of $120.00 (the "Purchase Price"), although the price
may be adjusted as described below. The description and
terms of the Rights are set forth in a Rights Agreement
dated June 28, 1990, and amended and restated as of
April 28, 1998 (the "Rights Agreement") between the Company
and First Chicago Trust Company of New York, as Rights Agent
(the "Rights Agent").
TRADING AND DISTRIBUTION OF RIGHTS
Initially, shareholders will not receive a separate
certificate for the Rights. The Rights will be represented
by the outstanding Common Share certificates with a copy of
the Summary of Rights distributed to shareholders (prior to
the amendment and restatement of the Rights Plan) attached
thereto and the Rights cannot be bought, sold or otherwise
traded separately from the Common Shares. Certificates for
Common Shares issued after the Record Date will carry a
notation that indicates that Rights are attached to the
Common Shares and that the terms of the Rights Agreement are
incorporated therein.
Separate certificates representing the Rights will be
distributed as soon as practicable after the "Distribution
Date", which is the earliest to occur of:
(1) the Close of Business on the day the Company
learns that a person or group of affiliated or
associated persons has acquired beneficial ownership of
more than 15% of the outstanding Common Shares (such
person or group of persons therefore becoming an
"Acquiring Person") or
(2) the Close of Business on such date as may be
designated by action of the Board of Directors
following the commencement or announcement of an
intention to make a tender offer or exchange offer the
consummation of which could result in the beneficial
ownership by a person or group of more than 15% of such
outstanding Common Shares.
Until the Distribution Date (or earlier exchange,
redemption or expiration of the Rights), the surrender for
transfer of any certificates for Common Shares outstanding
as of the Record Date, even without such notation or a copy
of this Summary of Rights being attached thereto, will also
constitute the transfer of the Rights associated with the
Common Shares represented by such certificate. As soon as
practicable following the Distribution Date, separate
certificates evidencing the Rights ("Right Certificates")
will be mailed to holders of record of the Common Shares as
of the close of business on the Distribution Date and,
thereafter, such separate Right Certificates alone will
evidence the Rights.
EXERCISABILITY AND EXPIRATION
The holders of the Rights are not required to take any
action until the Rights become exercisable. As described
above, the Rights are not exercisable until the Distribution
Date. Holders of the Rights will be notified that the
Rights have become exercisable when the Rights Agent mails
the Rights Certificates. The Rights will expire on
April 28, 2008 (the "Final Expiration Date"), unless the
Final Expiration Date is extended or unless the Rights are
earlier redeemed by the Company, in each case, as described
below.
ADJUSTMENTS
In order to protect the value of the Rights to the
holders, the Purchase Price payable, and the number of
Common Shares or other securities or property issuable, upon
exercise of the Rights are subject to adjustment from time
to time (1) in the event of a stock dividend on, or a
subdivision, combination or reclassification of, the Common
Shares, (2) upon the grant to holders of the Common Shares
of certain rights or warrants to subscribe for or purchase
Common Shares at a price, or securities convertible into
Common Shares with a conversion price less than the then
current market price of Common Shares, or (3) upon the
distribution to holders of the Common Shares of evidences of
indebtedness or assets (excluding regular periodic cash
dividends paid out of earnings or retained earnings or
dividends payable in Common Shares) or of subscription
rights or warrants, other than those referred to above.
These adjustments are called anti-dilution provisions
and are intended to ensure that a holder of Rights will not
be adversely affected by the occurrence of such events.
With certain exceptions, the Company is not required to
adjust the Purchase Price until cumulative adjustments
require a change of at least 1% in the Purchase Price. No
fractional Common Shares will be issued and in lieu thereof,
an adjustment in cash will be made based on the market price
of the Common Shares on the last trading day prior to the
date of exercise.
FLIP-OVER EVENTS AND FLIP-IN EVENTS
In the event that (1) the Company is acquired in a
merger or other business combination transaction with an
Acquiring Person or an Affiliate or Associate of an
Acquiring Person and the Company is not the surviving
corporation, or (2) any Acquiring Person or Affiliate or
Associate of an Acquiring Person consolidates or merges with
the Company and all or part of the Company's Common Shares
are exchanged for securities, cash or property of such
Acquiring Person or Affiliate or Associate of an Acquiring
Person, or (3) 50% or more of the Company's consolidated
assets or earning power are sold to an Acquiring Person or
Affiliate or Associate of an Acquiring Person (collectively,
"Flip-Over Events"), proper provision will be made so that
each holder of a Right will thereafter have the right to
receive, upon the exercise thereof at the then current
exercise price of the Right, that number of shares of common
stock of the acquiring company which at the time of such
transaction will have a market value of two times the
exercise price of the Right. In the event that someone
becomes an Acquiring Person (a "Flip-In Event"), proper
provision shall be made so that each holder of a Right,
other than Rights beneficially owned by the Acquiring Person
(which will thereafter be void), will thereafter have the
right to receive upon exercise that number of Common Shares
having a market value of two times the exercise price of the
Right.
EXCHANGE OPTION
At any time after a person becomes an Acquiring Person,
and prior to the acquisition by such Acquiring Person of 50%
or more of the outstanding Common Shares, the Board of
Directors of the Company may exchange the Rights (other than
Rights owned by such person or group which have become
void), in whole or in part, at an exchange ratio of one half
of the number of securities for which each Right is then
exercisable per Right (subject to adjustment).
REDEMPTION
At any time prior the earlier of (i) the time a person
becomes an Acquiring Person and (ii) the Final Expiration
Date, the Board of Directors of the Company may redeem the
Rights in whole, but not in part, at a price of $.01 per
Right (the "Redemption Price"). The redemption of the
Rights may be made effective at such time, on such basis and
with such conditions as the Board of Directors in its sole
discretion may establish. Immediately upon any redemption
of the Rights, the right to exercise the Rights will
terminate and the only right of the holders of Rights will
be to receive the Redemption Price.
OTHER PROVISIONS
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, except that from and after such time as any
person becomes an Acquiring Person no such amendment may
adversely affect the interests of the holders of the Rights.
Until a Right is exercised, the holder thereof, as
such, win have no rights as a shareholder of the Company,
including, without limitation, the right to vote or to
receive dividends.
A copy of the Rights Agreement as amended and restated
has been filed with the Securities and Exchange Commission
as an Exhibit to the Amendment dated April 28, 1998 to the
Company's Registration Statement on Form 8-A dated June 29,
1990. A copy of the Rights Agreement is available from the
Company at no charge upon written request. 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 incorporated herein by this reference.
