EXHIBIT 4.4
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Rights Agreement
between
Alpharma Inc.
and
BankBoston, N.A.,
Subscription Agent
Rights to Purchase Class A Common Stock
____ __, 1997
EXHIBIT 4.4
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This RIGHT AGREEMENT (the "Agreement") is dated as of ____ __, 1997, between
Alpharma Inc., a Delaware corporation (the "Company"), and BankBoston, a
national banking association, as subscription agent (the "Subscription Agent").
WHEREAS, the Company proposes to issue Rights (the "Rights") entitling the
holders thereof to purchase (a) an aggregate of up to TWO MILLION, TWO HUNDRED
SIXTY-TWO THOUSAND, SIX HUNDRED EIGHTY-SIX (2,262,686) shares of the Company's
Class A Common Stock, $.20 par value (the "Class A Common Stock") plus (b)
additional shares which the holders thereof are entitled to purchase due to the
rounding of the number of Rights up to the nearest whole number (the "Rounding
Shares"). The Whole Shares and Rounding Shares are referred to collectively as
the "Shares"; and
WHEREAS, the Subscription Agent, at the request of the Company, has agreed to
act as the agent of the Company in connection with the issuance, registration,
transfer, exchange and exercise of the Rights;
NOW, THEREFORE, in consideration of the premises and mutual agreements herein
set forth, the parties hereto agree as follows:
Section 1. Appointment of Subscription Agent. The Company hereby appoints
the Subscription Agent to act as agent for the Company in accordance with the
instructions hereinafter set forth; and the Subscription Agent hereby accepts
such appointment, upon the terms and conditions hereinafter set forth.
Section 2. Amount Issued. (a) Subject to the provisions of this Agreement,
Rights to purchase TWO MILLION, TWO HUNDRED SIXTY-TWO THOUSAND, SIX HUNDRED
EIGHTY-SIX (2,262,686) Whole Shares and the Rounding Shares may be issued and
delivered by the Company hereunder. The Company shall deliver to holders of
Class A Common Stock as of July 25, 1997 (the "Record Date") (the "Record
Holders") one-sixth of a Right for each share of Class A Common Stock held of
record on the Record Date. No fractional rights or cash in lieu thereof will be
issued or paid. The number of Rights distributed to each Record Holder will be
rounded up to the nearest whole number. Each Right shall entitle the holder
thereof to purchase one share of Class A Common Stock at a price of $16.34 per
share upon exercise of the Right as herein provided.
Section 3. Form of Subscription Certificates. (a) The Rights shall be
evidenced by certificates (the "Subscription Certificates") to be delivered
pursuant to this Agreement in registered form only. The Subscription
Certificates and the forms of election to purchase Shares and of assignment to
be printed on the reverse thereof shall be in substantially the form set forth
in Exhibit A hereto together with such appropriate insertions, omissions,
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substitutions and other variations as are required or permitted by this
Agreement, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with any law or with any rules made pursuant thereto or with any rules of any
securities exchange, any agreement between the Company and any holder of a Right
(a "Rightholder"), or as may, consistently herewith, be determined by the
officers executing such Subscription Certificates, as evidenced by their
execution of such Subscription Certificates.
(b) No Subscription Certificate may be divided in such a way as to
permit the holder to receive a greater number of Rights than the number to which
such Subscription Certificate entitles its holder, except that a depositary,
bank, trust company, and securities broker or dealer holding shares of Class A
Common Stock on the Record Date for more than one beneficial owner may by
delivering a written request
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EXHIBIT 4.4
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by 5:00 p.m., New York City time, on a date which is ten business days from the
effective date of the Registration Statement, as hereinafter defined and, upon
proper showing to the Subscription Agent, exchange its Subscription Certificate
to obtain a Subscription Certificate for the number of Rights to which all such
beneficial owners in the aggregate would have been entitled had each been a
Record Holder. The Company reserves the right to refuse to issue any such
Subscription Certificate if such issuance would be inconsistent with the
principle that each beneficial owner's holdings will be rounded up to the
nearest whole Right.
Section 4. Execution of Subscription Certificates. Subscription
Certificates shall be signed on behalf of the Company by its Chairman,
President, a Vice President or its Treasurer and attested by its Secretary or
Assistant Secretary, under its corporate seal. Each such signature upon the
Subscription Certificates may be in the form of a facsimile signature of the
current or any future Chairman, President, Vice President, Treasurer, Secretary
or Assistant Secretary and may be imprinted or otherwise reproduced on the
Subscription Certificates and for that purpose the Company may adopt and use the
facsimile signature of any person who shall have been Chairman, President, Vice
President, Treasurer, Secretary or Assistant Secretary, notwithstanding the fact
that at the time the Subscription Certificates shall be countersigned and
delivered or disposed of, such person shall have ceased to hold such office.
The seal of the Company may be in the form of a facsimile thereof and may be
impressed, affixed, imprinted or otherwise reproduced on the Subscription
Certificates.
If any officer of the Company who shall have signed any of the Subscription
Certificates shall cease to be such officer before the Subscription Certificates
so signed shall have been countersigned by the Subscription Agent or disposed of
by the Company, such Subscription Certificates nevertheless may be countersigned
and delivered or disposed of as though such person had not ceased to be such
officer of the Company; and any Subscription Certificate may be signed on behalf
of the Company by any person who, at the actual date of the execution of such
Subscription Certificate, shall be a proper officer of the Company to sign such
Subscription Certificate, although at the date of the execution of this
Agreement any such person was not such officer.
Section 5. Registration and Countersignature. Subscription Certificates
shall be manually countersigned and dated the date of countersignature by the
Subscription Agent and shall not be valid for any purpose unless so
countersigned. The Subscription Certificates shall be numbered and shall be
registered in a register (the "Rights Register") to be maintained by the
Subscription Agent.
The Subscription Agent's countersignature on all Subscription Certificates
shall be in substantially the form set forth in Exhibit A hereto.
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The Company and the Subscription Agent may deem and treat the registered
holder of a Subscription Certificate as the absolute owner thereof
(notwithstanding any notation of ownership or other writing thereon made by
anyone), for the purpose of any exercise thereof or any distribution to the
holder thereof and for all other purposes, and neither the Company nor the
Subscription Agent shall be affected by any notice to the contrary.
Section 6. Registration of Transfers and Exchanges. Until the Close of
Business on the Expiration Date (as hereinafter defined), the Subscription Agent
shall from time to time register the transfer of any outstanding Subscription
Certificates in the Rights Register, upon surrender of such Subscription
Certificates, duly endorsed, and, if not surrendered by or on behalf of an
original holder of Subscription Certificates or a transferee thereof,
accompanied by a written instrument or instruments of transfer in form
satisfactory to the Subscription Agent, duly signed by the registered holder or
holders thereof or by the duly appointed legal
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EXHIBIT 4.4
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representative thereof or by a duly authorized attorney, such signature to be
guaranteed by (a) a bank or trust company, (b) a broker or dealer that is a
member of the National Association of Securities Dealers, Inc. (the "NASD"), (c)
a member of a national securities exchange or (d) by an "eligible guarantor
institution" as defined under Rule 17Ad-15 promulgated under the Securities
Exchange Act of 1934, as amended. Upon any such registration of transfer, a new
Subscription Certificate shall be issued to the transferee.
Subscription Certificates may be exchanged at the option of the holder or
holders thereof, when surrendered to the Subscription Agent at its offices or
agency maintained in New York, New York (or at such other offices or agencies as
may be designated by the Agent) for the purpose of exchanging, transferring and
exercising the Rights (a "Subscription Agent Office,") or at the offices of any
successor Subscription Agent as provided in Section 18 hereof, for another
Subscription Certificate or other Subscription Certificates of like tenor and
representing in the aggregate a like number of Rights.
The Subscription Agent is hereby authorized to countersign, in accordance
with the provisions of Section 5 and of this Section 6, and deliver the new
Subscription Certificates required pursuant to the provisions of this Section,
and for the purpose of any distribution of Subscription Certificates
contemplated by Section 13.
For purposes of this Agreement, "Affiliate" or "affiliate" means, with
respect to any person, (i) any other person or entity controlling, controlled by
or under common control with such person, and (ii) any officer, director,
partner, trustee, beneficiary or employee of any person referred to in clause
(i) above.
Section 7. Duration and Exercise of Rights; Subscription Price. (a) The
Rights shall expire at (i) 5:00 p.m. New York City time (the "Close of
Business") on November 25, 1997 or (ii) the Close of Business on such later date
as shall be determined in the sole discretion of the Company in a written
statement to the Subscription Agent and with notice to registered Rightholders
in the manner provided for in Section 15 (such date of expiration being
hereinafter referred to as the "Expiration Date"). At such time as the Rights
become exercisable, and thereafter until the Close of Business on the Expiration
Date, the Rights may be exercised on any business day. After the Close of
Business on the Expiration Date, the Rights will become void and of no value.
(b) (i) Subject to the provisions of this Agreement, including Section 13,
each Right shall entitle the holder thereof to purchase from the Company (and
the Company shall issue and sell to such holder of a Right) one fully paid and
nonassessable Share at the price of $16.34 (U.S.) (such price being the
"Subscription Price"). The holder of a Right shall exercise such holder's right
to purchase Shares by depositing with the Subscription Agent at a Subscription
Agent Office, the Subscription Certificate evidencing such Right, with the form
of election to purchase on the reverse thereof duly completed and signed by the
registered holder or holders thereof or by the duly appointed legal
representative thereof or by a duly authorized attorney, such signature (if not
signed by or on behalf of an original holder of Rights) to be guaranteed in the
manner described in Section 6 hereof, and paying to the Subscription Agent in
lawful money of the United States of America by certified check or official bank
check an amount equal to the Subscription Price multiplied by the number of
Shares in respect of which such Rights are being exercised.
(ii) If a Right Holder wishes to exercise Rights, but time will not
permit such holder to cause the Subscription Certificate or Subscription
Certificates evidencing such Rights to reach the Subscription Agent on or prior
to the Expiration Date, such Rights may nevertheless be exercised if all of the
following conditions (the "Guaranteed Delivery Procedures") are met:
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EXHIBIT 4.4
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(A) such holder has caused payment in full of the Subscription Price
for each Share being subscribed to be received (in the manner set forth in
(i) above) by the Subscription Agent on or prior to the Expiration Date;
(B) the Subscription Agent receives, on or prior to the Expiration
Date, a guarantee notice (a "Notice of Guaranteed Delivery"), substantially
in the form provided with the Instruction as to Use of Alpharma Inc.
Subscription Certificates (the "Instructions") distributed with the
Subscription Certificates, from a member firm of a registered national
securities exchange or a member of the National Association of Securities
Dealers, Inc. (the "NASD"), or from a commercial bank or trust company
having an office or correspondent in the United States (each, an "Eligible
Institution"), stating the name of the exercising Right Holder, the number
of Rights represented by the Subscription Certificate or Subscription
Certificates held by such exercising Right Holder, the number of Shares
being subscribed for and guaranteeing the delivery to the Subscription
Agent of any Subscription Certificate evidencing such Rights within five
New York Stock Exchange trading days following the date of the Notice of
Guaranteed Delivery; and
(C) the properly completed Subscription Certificate or Subscription
Certificates evidencing the Rights being exercised, with any required
signatures guaranteed, is received by the Subscription Agent within five
New York Stock Exchange trading days following the date of the Notice of
Guaranteed Delivery relating thereto. The Notice of Guaranteed Delivery
may be delivered to the Subscription Agent in the manner set forth in
Section 20 hereof.
Unless a Subscription Certificate (i) provides that the shares of Class A
Common Stock to be issued pursuant to the exercise of Rights represented thereby
are to be delivered to the holder of such Rights or (ii) is submitted for the
account of an Eligible Institution, signatures on such Subscription Certificate
must be guaranteed by an Eligible Institution.
(c) Subject to Section 9, upon such surrender of a Subscription Certificate
and payment of the Subscription Price, the Subscription Agent shall requisition
from the Company's Class A Common Stock transfer agent (the "Transfer Agent")
for issuance and delivery to or upon the written order of the registered holder
of such Subscription Certificate and in such name or names as such registered
holder may designate, a certificate or certificates for the Share or Shares
issuable upon the exercise of the Right or Rights evidenced by such Subscription
Certificate. Such certificate or certificates shall be deemed to have been
issued and any person so designated to be named therein shall be deemed to have
become the holder of record of such Share or Shares as of the date of the
surrender of such Subscription Certificate duly executed and payment of the
aggregate Subscription Price. The Subscription Price will be deemed to have
been received by the Subscription Agent only upon (i) clearance of any
uncertified check, or (ii) receipt by the Subscription Agent of any certified
check or bank draft drawn upon a U.S. bank or any postal, telegraphic or express
money order. The Rights evidenced by a Subscription Certificate shall be
exercisable, at the election of the registered holder thereof, either as an
entirety or from time to time for a portion of the number of Rights specified in
the Subscription Certificate. If less than all of the Rights evidenced by a
Subscription Certificate surrendered upon the exercise of Rights are exercised
at any time prior to the Expiration Date, a new Subscription Certificate or
Certificates shall be issued for the number of Rights evidenced by the
Subscription Certificate so surrendered that have not been exercised, and the
Subscription Agent is hereby authorized to countersign such new Subscription
Certificate or Certificates pursuant to the provisions of Section 6 and this
Section 7.
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EXHIBIT 4.4
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(d) The Subscription Agent shall account promptly to the Company with
respect to Rights exercised and concurrently pay or deliver to the Company all
moneys and other consideration received by it upon the purchase of Shares
through the exercise of Rights.
(e) If either the number of Rights being exercised is not specified on a
Subscription Certificate, or the payment delivered is not sufficient to pay the
full aggregate Subscription Price for all shares of Class A Common Stock stated
to be subscribed for, the Right Holder will be deemed to have exercised the
maximum number of Rights that could be exercised for the amount of the payment
delivered by such Right Holder. If the payment delivered by the Right Holder
exceeds the aggregate Subscription Price for the number of Rights evidenced by
the Subscription Certificate(s) delivered by such Right Holder, the payment will
be applied, until depleted, to subscribe for shares of Class A Common Stock.
Any excess payment remaining after the foregoing allocation will be returned to
the Right Holder as soon as practicable by mail, without interest or deduction.
Section 8. Cancellation of Rights. If the Company shall purchase or
otherwise acquire Rights, the Subscription Certificates representing such Rights
shall thereupon be delivered to the Subscription Agent and be cancelled by it
and retired. The Subscription Agent shall cancel all Subscription Certificates
surrendered for exchange, substitution, transfer or exercise in whole or in
part. Subscription Certificates so cancelled shall be delivered by the
Subscription Agent to the Company from time to time upon request.
Section 9. Payment of Taxes. The Company will pay all documentary stamp
taxes attributable to the initial issuance of Rights and of Shares upon the
exercise of Rights; provided, that the Company shall not be required to pay any
tax or taxes which may be payable in respect of any transfer involved in the
issue of any Subscription Certificates or any certificates for Shares in a name
other than the registered holder of a Subscription Certificate surrendered upon
the exercise of a Right, and the Company shall not be required to issue or
deliver such certificates unless or until the person or persons requesting the
issuance thereof shall have paid to the Company the amount of such tax or shall
have established to the satisfaction of the Company that such tax has been paid
or adequate provision has been made for the payment thereof.
Section 10. Mutilated or Missing Subscription Certificates. If any of the
Subscription Certificates shall be mutilated, lost, stolen or destroyed, the
Company may in its discretion issue, and the Subscription Agent shall
countersign and deliver, in exchange and substitution for and upon cancellation
of the mutilated Subscription Certificate, or in lieu of and substitution for
the Subscription Certificate lost, stolen or destroyed, a new Subscription
Certificate of like tenor and representing an equivalent number of Rights, but
only upon receipt of evidence satisfactory to the Company and the Subscription
Agent of such loss, theft or destruction of such Subscription Certificate and
indemnity or bond, if requested, also satisfactory to them. Applicants for such
substitute Subscription Certificates shall also comply with such other
reasonable regulations and pay such other reasonable charges as the Company or
the Subscription Agent may prescribe.
Section 11. Reservation of Shares. For the purpose of enabling it to
satisfy any obligation to issue Shares upon exercise of Rights, the Company will
at all times through the Close of Business on the Expiration Date, reserve and
keep available, free from preemptive rights and out of its aggregate authorized
but unissued or treasury shares of Class A Common Stock, the number of Shares
deliverable upon the exercise of all outstanding Rights, and the Transfer Agent
is hereby irrevocably authorized and directed at all times to reserve such
number of authorized and unissued or treasury shares of Class A Common Stock as
shall be required for such purpose. The Company will keep a copy of this
Agreement on file with such Transfer Agent and with every transfer agent for any
shares of the Company's capital stock issuable upon the exercise of Rights
pursuant to Section 12. The Subscription Agent is hereby irrevocably authorized
to requisition from
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EXHIBIT 4.4
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time to time from such Transfer Agent stock certificates issuable upon exercise
of outstanding Rights, and the Company will supply such Transfer Agent with duly
executed stock certificates for such purpose.
Before taking any action that would cause an adjustment pursuant to Section
13(b) reducing the Subscription Price below the then par value (if any) of the
Shares issuable upon exercise of the Rights, the Company will take any corporate
action that may, in the opinion of its counsel, be necessary in order that the
Company may validly and legally issue fully paid and nonassessable Shares at the
Subscription Price as so adjusted.
The Company covenants that all Shares issued upon exercise of the Rights
will, upon issuance in accordance with the terms of this Agreement, be fully
paid and nonassessable and free from all liens, charges and security interests
created by or imposed upon the Company with respect to the issuance thereof.
Section 12. Registration of Rights and Shares; Prospectus Delivery. (a)
The Company has filed with the SEC a registration statement, on Form S-3 (the
"Registration Statement") which has been declared effective. The Company will
use it best efforts to keep the Registration Statement continuously effective
from the date hereof through the Close of Business ten (10) business days
following the Expiration Date; provided however, that if the Company has
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received a written request from any person who in the judgment of the Company
may be deemed to be an affiliate of the Company, (as that term is defined in
Rule 144 promulgated under the Securities Act) prior to the Expiration Date that
any Shares acquired as the result of the exercise of a Right are owned or deemed
to be owned by such affiliate and that such Shares will be owned or will be
deemed to be owned by such affiliate on and after the Expiration Date, then the
Company shall use its best efforts to keep the Registration Statement provided
for by this Section 12 effective for so long as necessary to permit sales of
such Shares to be made by such affiliate but in no event longer than the first
anniversary of the Expiration Date. So long as any unexpired Rights remain
outstanding and if required in order to comply with the Securities Act, the
Company agrees that it will file such post-effective amendments to the
Registration Statement provided for in this Section 12. So long as any Rights
remain outstanding (and so long as necessary to permit affiliates to sell Shares
in the circumstances and subject to the limitations described in the second
preceding sentence), the Company will take all necessary action (a) to obtain
and keep effective any and all permits, consents and approvals of government
agencies and authorities and to make filings under federal and state securities
acts and laws, which may be or become necessary in connection with the issuance,
sale, transfer and delivery of the Subscription Certificates, the exercise of
the Rights and the issuance, sale, transfer and delivery of the Shares issued
upon exercise of Rights, and (b) to have the Rights (as of the date hereof) and
the Shares (immediately upon their issuance upon exercise of Rights) listed for
trading or quotation on such over-the-counter quotation system as the Company
deems advisable.
(b) On the date of its effectiveness and on the date of any Right sale or
exercise, the Registration Statement will comply in all material respects with
the applicable requirements of the Securities Act and the rules and regulations
thereunder; on the date of its effectiveness, the Registration Statement will
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading; and, the final prospectus contained in the
Registration Statement, if not filed pursuant to rule 424(b), will not, and on
the date of any filing pursuant to rule 424(b) and upon the date of any Right
sale or exercise or any resale by an affiliate, such final prospectus (together
with any supplement thereto) will not, include any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
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EXHIBIT 4.4
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Section 13. Adjustment of Subscription Price and Number of Shares
Purchasable or Number of Rights. (a) Except as provided in Section 13(b) below,
the Subscription Price and the number of Shares purchasable upon the exercise of
each Right shall not be adjusted during the term of the Rights or upon exercise
of any Right or Rights.
(b) If the Company shall (i) pay a dividend on its shares of Class A
Common Stock in shares of either Class A Common Stock or shares of the Company's
Class B Common Stock, $.20 par value, (ii) subdivide its outstanding shares of
Class A Common Stock, (iii) combine its outstanding shares of Class A Common
Stock into a smaller number of shares of Class A Common Stock or (iv) reclassify
the Class A Common Stock (including any such reclassification in connection with
a consolidation or merger in which the Company is the continuing corporation),
the number of Shares purchasable upon exercise of each Right immediately prior
thereto shall be adjusted so that the holder of each Right shall be entitled
upon exercise to receive the kind and number of Shares or other securities of
the Company which such holder would have owned or have been entitled to receive
after the happening of any of the events described above, had such Right been
exercised immediately prior to the happening of such event or any record date
with respect thereto. An adjustment made pursuant to this paragraph (b) shall
become effective immediately after the effective date of such event retroactive
to the record date, if any, for such event. In addition, in the event of any
reclassification of the Class A Common Stock, references in this Agreement to
Class A Common Stock shall thereafter be deemed to refer to the securities into
which the Class A Common Stock shall have been reclassified.
(c) In case of any consolidation of the Company with or merger of the
Company into another corporation or in case of any sale or conveyance to another
corporation of the property of the Company as an entirety or substantially as an
entirety or the Company is a party to a merger or binding share exchange which
reclassifies or changes its outstanding Class A Common Stock, the Company or
such successor or purchasing corporation, as the case may be, shall execute with
the Subscription Agent an agreement, in form and substance substantially
equivalent to this Agreement, that each holder of a Subscription Certificate
shall have the right thereafter, subject to terms and conditions substantially
equivalent to those contained in this Agreement, upon payment of the
Subscription Price in effect immediately prior to such action to purchase upon
exercise of each Right the kind and amount of shares and other securities and
property which such holder would have owned or have been entitled to receive
after the happening of such consolidation, merger, sale or conveyance had such
Right been exercised immediately prior to such action. The Company shall mail
by first-class mail, postage prepaid, to each registered holder of a Right,
notice of the execution of any such agreement. Such agreement shall provide for
adjustments, which shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Section 13. The provisions of this paragraph
(b) shall similarly apply to successive consolidations, mergers, sales or
conveyances. The Subscription Agent shall be under no duty or responsibility to
determine the correctness of any provisions contained in any such agreement
relating either to the kind or amount of shares of stock or other securities or
property receivable upon exercise of Rights or with respect to the method
employed and provided therein for any adjustments and shall be entitled to rely
upon the provisions contained in any such agreement
Section 14. Fractional Rights and Fractional Shares. The Company shall
issue one-sixth of a Right for each share of Class A Common Stock held by a
Record Holder on the Record Date. The Company shall not distribute fractional
Rights or Subscription Certificates that evidence fractional Rights. The number
of Rights to be distributed to each Record Holder will be rounded up to the
nearest whole number. Each Right will be exercisable for one share of Class A
Common Stock.
Section 15. Notices to Rightholders. If:
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EXHIBIT 4.4
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(a) the Company shall declare any dividend payable in any securities
upon its shares of Class A Common Stock or make any distribution (other
than a cash dividend declared in the ordinary course) to the holders of its
shares of Class A Common Stock, or
(b) the Company shall offer to the holders of its shares of Class A
Common Stock any additional shares of Class A Common Stock or securities
convertible or exchangeable into shares of Class A Common Stock or any
right to subscribe for or purchase Class A Common Stock, or
(c) there shall be a dissolution, liquidation or winding up of the
Company (other than in connection with a consolidation, merger or sale of
all or substantially all of its property, assets and business as an
entirety),
then the Company shall (i) cause written notice of such event to be filed
with the Subscription Agent and shall cause written notice of such event to be
given to each of the registered holders of the Subscription Certificates at such
holder's address appearing on the Rights Register, by first-class mail, postage
prepaid, and (ii) make a public announcement in a daily morning English language
newspaper of general circulation in New York City, New York, and in a daily
morning Norwegian language newspaper of general circulation in Oslo, Norway, of
such event, such giving of notice and publication to be completed at least 10
calendar days (or 20 calendar days in any case specified in clause (c) above)
prior to the date fixed as a record date or the date of closing the transfer
books for the determination of the stockholders entitled to such dividend,
distribution or subscription rights, or for the determination of stockholders
entitled to vote on such proposed dissolution, liquidation or winding up. Such
notice shall specify such record date or the date of closing the transfer books,
as the case may be. The failure to give the notice required by this Section 15
or any defect therein shall not affect the legality or validity of any dividend,
distribution, right, option, warrant, dissolution, liquidation or winding up or
the vote upon or any other action taken in connection therewith.
Section 16. Merger, Consolidation or Change of Name of Subscription Agent.
Any corporation into which the Subscription Agent may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Subscription Agent shall be a party, or
any corporation succeeding to the shareholder services business of the
Subscription Agent, shall be the successor to the Subscription Agent hereunder
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 Subscription Agent under the provisions of Section
18. If at the time such successor to the Subscription Agent shall succeed under
this Agreement, any of the Subscription Certificates shall have been
countersigned but not delivered, any such successor to the Subscription Agent
may adopt the countersignature of the original Subscription Agent; and if at
that time any of the Subscription Certificates shall not have been
countersigned, any successor to the Subscription Agent may countersign such
Subscription Certificates either in the name of the predecessor Subscription
Agent or in the name of the successor Subscription Agent; in all such cases such
Subscription Certificates shall have the full force provided in the Subscription
Certificates and in this Agreement.
If at any time the name of the Subscription Agent shall be changed and at
such time any of the Subscription Certificates shall have been countersigned but
not delivered, the Subscription Agent whose name has changed may adopt the
countersignature under its prior name; and if at that time any of the
Subscription Certificates shall not have been countersigned, the Subscription
Agent may countersign such Subscription Certificates either in its prior name or
in its changed name; and in all such cases such Subscription Certificates shall
have the full force provided in the Subscription Certificates and in this
Agreement.
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Section 17. Subscription Agent. The Subscription Agent undertakes the
duties and obligations imposed by this Agreement upon the following terms and
conditions, by all of which the Company and the holders of Subscription
Certificates, by their acceptance thereof, shall be bound:
(a) The statements contained herein and in the Subscription Certificates
shall be taken as statements of the Company, and the Subscription Agent assumes
no responsibility for the correctness of any of the same except such as describe
the Subscription Agent or action taken or to be taken by it. Except as herein
otherwise provided, the Subscription Agent assumes no responsibility with
respect to the execution, delivery or distribution of the Subscription
Certificates.
(b) The Subscription Agent shall not be responsible for any failure of the
Company to comply with any of the covenants contained in this Agreement or in
the Subscription Certificates to be complied with by the Company nor shall it at
any time be under any duty or responsibility to any holder of a Right to make or
cause to be made any adjustment in the Subscription Price or in the number of
Shares issuable upon exercise of any Subscription (except as instructed by the
Company)
(c) The Subscription Agent may consult at any time with counsel
satisfactory to it (who may be counsel for the Company) and the Subscription
Agent shall incur no liability or responsibility to the Company or any holder of
any Subscription Certificate in respect of any action taken, suffered or omitted
by it hereunder in good faith and in accordance with the opinion or the advice
of such counsel.
(d) The Subscription Agent shall incur no liability or responsibility to
the Company or to any holder of any Subscription Certificate for any action
taken in reliance on any notice, resolution, waiver, consent, order, certificate
or other paper, document or instrument believed in good faith by it to be
genuine and to have been signed, sent or presented by the proper party or
parties.
(e) The Company agrees to pay to the Subscription Agent reasonable
compensation for all services rendered by the Subscription Agent under this
Agreement, to reimburse the Subscription Agent upon demand for all expenses,
taxes and governmental charges and other charges of any kind and nature incurred
by the Subscription Agent in the performance of its duties, under this Agreement
and to indemnify the Subscription Agent and save it harmless against any and all
losses, liabilities and expenses, including judgments, costs and reasonable
counsel fees and expenses, for anything done or omitted by the Subscription
Agent arising out of or in connection with this Agreement except as a result of
its negligence or bad faith.
(f) The Subscription Agent shall be under no obligation to institute any
action, suit or legal proceeding or to take any other action likely to involve
expense unless the Company or one or more registered holders of Subscription
Certificates shall furnish the Subscription Agent with reasonable security and
indemnity for any costs or expenses which may be incurred. All rights of action
under this Agreement or under any of the Rights may be enforced by the
Subscription Agent without the possession of any of the Subscription
Certificates or the production thereof at any trial or other proceeding related
thereto, and any such action, suit or proceeding instituted by the Subscription
Agent shall be brought in its name as Subscription Agent, and any recovery or
judgment shall be for the ratable benefit of the registered holders of the
Rights, as their respective rights or interests may appear.
(g) The Subscription Agent, and any stockholder, director, officer or
employee thereof, may buy, sell or deal in any of the Rights or other securities
of the Company or become pecuniarily interested in any transaction in which the
Company may be interested, or contract with or lend money to the Company or
otherwise act as fully and freely as though they were not the Subscription Agent
under this Agreement, or
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EXHIBIT 4.4
-----------
a stockholder, director, officer or employee of the Subscription Agent, as the
case may be. Nothing herein shall preclude the Subscription Agent from acting
in any other capacity for the Company or for any other legal entity.
(h) The Subscription Agent shall act hereunder solely as agent for the
Company, and its duties shall be determined solely by the provisions hereof.
The Subscription Agent shall not be liable for anything which it may do or
refrain from doing in connection with this Agreement except for its own
negligence or bad faith.
(i) The Company agrees that it will perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged and delivered all such
further and other acts, instruments and assurances as may reasonably be required
by the Subscription Agent for the carrying out or performing the provisions of
this Agreement.
(j) The Subscription 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 Subscription Agent) or in respect of the
validity or execution of any Subscription Certificate (except its
countersignature thereof), nor shall the Subscription Agent by any act hereunder
be deemed to make any representation or warranty as to the authorization or
reservation of the Shares to be issued pursuant to this Agreement or any
Subscription Certificate or as to whether the Shares will when issued be validly
issued, fully paid and nonassessable or as to the Subscription Price or the
number of Shares issuable upon exercise of any Right.
(k) The Subscription Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from the
Chairman, the President, any Vice President, the Treasurer, the Secretary or an
Assistant Secretary of the Company, and to apply to such officers for advice or
instructions in connection with its duties, and shall not be liable for any
action taken or suffered to be taken by it in good faith in accordance with
instructions of any such officer or in good faith reliance upon any statement
signed by any one of such officers of the Company with respect to any fact or
matter (unless other evidence in respect thereof is herein specifically
prescribed) which may be deemed to be conclusively proved and established by
such signed statement.
Section 18. Change of Subscription Agent. If the Subscription Agent shall
resign (such resignation to become effective not earlier than 60 days after the
giving of written notice thereof to the Company and the registered holders of
Subscription Certificates) or shall become incapable of acting as Subscription
Agent or if the Board of Directors of the Company shall by resolution remove the
Subscription Agent (such removal to become effective not earlier than 30 days
after the filing of a certified copy of such resolution with the Subscription
Agent and the giving of written notice of such removal to the registered holders
of Subscription Certificates), the Company shall appoint a successor to the
Subscription Agent. If the Company shall fail to make such appointment within a
period of 30 days after such removal or after it has been so notified in writing
of such resignation or incapacity by the Subscription Agent or by the registered
holder of a Subscription Certificate (in the case of incapacity), then the
registered holder of any Subscription Certificate may apply to any court of
competent jurisdiction for the appointment of a successor to the Subscription
Agent. Pending appointment of a successor to the Subscription Agent, either by
the Company or by such a court, the duties of the Subscription Agent shall be
carried out by the Company. Any successor Subscription Agent, whether appointed
by the Company or by such a court, shall be a bank or trust company, in good
standing, incorporated under the laws of any state or of the United States of
America. As soon as practicable after appointment of the successor Subscription
Agent, the Company shall cause written notice of the change in the Subscription
Agent to be given to each of the registered holders of the Subscription
Certificates at such holder's address appearing on the Rights Register. After
appointment, the successor Subscription Agent shall
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EXHIBIT 4.4
-----------
be vested with the same powers, rights, duties and responsibilities as if it had
been originally named as Subscription Agent without further act or deed. The
former Subscription Agent shall deliver and transfer to the successor
Subscription Agent any property at the time held by it hereunder and execute and
deliver, at the expense of the Company, any further assurance, conveyance, act
or deed necessary for the purpose. Failure to give any notice provided for in
this Section 18 or any defect therein, shall not affect the legality or validity
of the removal of the Subscription Agent or the appointment of a successor
Subscription Agent, as the case may be.
Section 19. Rightholder Not Deemed a Stockholder. Nothing contained in
this Agreement or in any of the Subscription Certificates shall be construed as
conferring upon the holders thereof the right to vote or to receive dividends or
to consent or to receive notice as stockholders in respect of the meetings of
stockholders or for the election of directors of the Company or any other
matter, or any rights whatsoever as stockholders of the Company; provided,
however, that Section 19 shall be construed as limiting the rights of any holder
of a Subscription Certificate, which rights were conferred other than pursuant
to this Agreement.
Section 20. Delivery of Prospectus. If the Company is required under
applicable federal or state securities laws to deliver a prospectus upon
exercise of Rights, the Company will furnish to the Subscription Agent
sufficient copies of a prospectus, and the Subscription Agent agrees that upon
the exercise of any Subscription Certificate by the holder thereof, the
Subscription Agent will deliver to such holder, prior to or concurrently with
the delivery of the certificate or certificates for the Shares issued upon such
exercise, a copy of the prospectus.
Section 21. Notices to Company and Subscription Agent. Any notice or
demand authorized by this Agreement to be given or made by the Subscription
Agent or by any registered holder of any Subscription Certificate to or on the
Company shall be sufficiently given or made if sent by mail, first-class or
registered, postage prepaid, addressed (until another address is filed in
writing by the Company with the Subscription Agent), as follows:
Alpharma Inc.
Xxx Xxxxxxxxx Xxxxx
Xxxx Xxx, Xxx Xxxxxx 00000
Attention: Corporate Counsel
If the Company shall fail to maintain such office or agency or shall fail
to give such notice of any change in the location thereof, presentation may be
made and notices and demands may be served at the principal office of the
Subscription Agent.
Any notice pursuant to this Agreement to be given by the Company or by any
registered holder of any Subscription Certificate to the Subscription Agent
shall be sufficiently given if sent by first-class mail, postage prepaid,
addressed (until another address is filed in writing by the Subscription Agent
with the Company), as follows:
BankBoston, N.A.
000 Xxxxxx Xxxxxx
Mail Stop 45-01-19
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Shareholder Services Division
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EXHIBIT 4.4
-----------
The Subscription Agent maintains a Subscription Agent Office at BancBoston Trust
Company of New York, 00 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
Section 22. Supplements and Amendments. The Company and the Subscription
Agent may from time to time supplement or amend this Agreement without the
approval of any holders of Subscription Certificates in order to cure any
ambiguity, manifest error or other mistake in this Agreement, or to correct or
supplement any provision contained herein that may be defective or inconsistent
with any other provision herein, or to make any other provisions in regard to
matters or questions arising hereunder that the Company and the Subscription
Agent may deem necessary or desirable and that shall not adversely affect, alter
or change the interests of the holders of the Rights in any material respect.
Any supplement or amendment of this Agreement which may not be made by the
Company and the Subscription Agent without the approval of holders of
Subscription Certificates pursuant to the preceding paragraph shall require the
approval of the holders of Subscription Certificates entitled to purchase upon
exercise thereof a majority of the Shares which may be purchased upon the
exercise of all outstanding Subscription Certificates at the time that such
amendment or supplement is to be made. Notwithstanding the foregoing, any
amendment or supplement to this Agreement which would provide for an adjustment
to either (i) the number of Shares purchasable upon exercise of a Right or (ii)
the exercise price for which Shares are purchasable upon exercise of a Right, in
either case, in a manner not provided for in this agreement and in a manner that
would have a substantial negative impact on the holders of Subscription
Certificates, then such amendment or supplement shall require the consent of the
holders of all Subscription Certificates.
Section 23. Successors. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Subscription Agent shall
bind and inure to the benefit of their respective successors and assigns
hereunder.
Section 24. Termination. This Agreement shall terminate the Close of
Business on the date which is five New York Stock Exchange trading days after
the Expiration Date. The provisions of Section 12 shall survive such
termination.
Section 25. Governing Law. This Agreement and each Subscription
Certificate issued hereunder shall be deemed to be a contract made under the
laws of the State of New York and for all purposes shall be construed in
accordance with the internal laws of the State of New York without regard to
principles of conflict of law or choice of laws of the State of New York or any
other jurisdiction which would cause the application of any laws other than of
the State of New York.
Section 26. Benefits of this Agreement. Nothing in this Agreement shall
be construed to give to any person or corporation other than the Company, the
Subscription Agent and the registered holders of the Subscription Certificates
any legal or equitable right, remedy or claim under this Agreement, and this
Agreement shall be for the sole and exclusive benefit of the Company, the
Subscription Agent and the registered holders of the Subscription Certificates.
Section 27. Counterparts. This Agreement may be executed in a number of
counterparts and each of such counterparts shall all for purposes be deemed to
be an original, and such counterparts shall together constitute but one and the
same instrument.
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EXHIBIT 4.4
-----------
Section 28. Headings. The headings of sections of this Agreement have
been inserted for convenience of reference only, are not to be considered a part
hereof and shall in no way modify or restrict any of the terms or provisions
hereof.
* * * * *
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EXHIBIT 4.4
-----------
IN WITNESS WHEREOF the parties hereto have caused this Rights Agreement to
be executed and delivered as of the day and year first above written.
ALPHARMA INC.
By:
----------------------------------
Name:
Title: Chief Financial Officer/
Executive Vice President
Attest:
---------------------------------
BANKBOSTON, N.A.
By
---------------------------------
Name:
Title:
Attest:
----------------------------------
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EXHIBIT 4.4
-----------
EXHIBIT A
[FORM OF FACE OF SUBSCRIPTION CERTIFICATE]
THIS RIGHT WAS ORIGINALLY ISSUED ON ______________, 1997 AND SUCH ISSUANCE
WAS NOT REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY STATE OR OTHER SECURITIES LAW. NEITHER THIS
RIGHT NOR THE CLASS A COMMON STOCK OBTAINABLE UPON EXERCISE HEREOF MAY BE
OFFERED OR SOLD, PLEDGED OR OTHERWISE DISPOSED OF, EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND ANY
APPLICABLE STATE OR OTHER SECURITIES LAW COVERING SUCH SECURITY OR PURSUANT
TO AN EXEMPTION FROM SUCH REGISTRATION REQUIREMENT. THE TRANSFER AND
EXERCISE OF THIS RIGHT ARE ALSO SUBJECT TO THE CONDITIONS ON TRANSFER AND
EXERCISE SPECIFIED IN THE RIGHTS AGREEMENT, DATED AS OF __________, 1997
(AS AMENDED AND MODIFIED FROM TIME TO TIME), BETWEEN THE ISSUER HEREOF (THE
"COMPANY") AND THE FIRST NATIONAL BANK OF BOSTON, AS SUBSCRIPTION AGENT;
THE COMPANY AND THE SUBSCRIPTION AGENT EACH RESERVE THE RIGHT TO REFUSE THE
TRANSFER OF THIS RIGHT UNTIL SUCH CONDITIONS HAVE BEEN FULFILLED WITH
RESPECT TO SUCH TRANSFER. UPON WRITTEN REQUEST, A COPY OF SUCH CONDITIONS
SHALL BE FURNISHED BY THE COMPANY TO THE HOLDER HEREOF WITHOUT CHARGE.
VOID AFTER [NOVEMBER 25], 1997
No. C- RIGHT TO PURCHASE
SHARES OF CLASS A COMMON STOCK
ALPHARMA INC.
RIGHT TO PURCHASE CLASS A COMMON STOCK
This Subscription Certificate certifies that ________________ or
registered assigns, is the registered holder of a Right (the "Right") of
Alpharma Inc., a Delaware corporation (the "Company"), to purchase the number of
shares (the "Shares") of Class A Common Stock, $.20 par value (the "Class A
Common Stock"), of the Company set forth above. This Warrant expires at the
close of business on ____ __, 1997 (the "Expiration Date"), unless such date is
extended at the option of the Company, and entitles the holder to purchase from
the Company the number of fully paid and nonassessable Shares set forth above at
the initial subscription price of $16.34 per Share (the "Subscription Price"),
payable in lawful money of the United States of America.
Subject to the terms and conditions set forth herein and in the Rights
Agreement referred to on the reverse hereof, this Right may be exercised upon
surrender of this Subscription Certificate and payment of an amount equal to the
Subscription Price multiplied by the number of Shares to be purchased upon
exercise hereof at the office or agency of the Subscription Agent at BancBoston
Trust Company of New York, 00 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the
"Subscription Agent Office").
The Subscription Price and the number of Shares purchasable upon
exercise of this Right are subject to adjustment upon the occurrence of certain
events as set forth in the Rights Agreement. The holder hereof
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EXHIBIT 4.4
-----------
by accepting this Subscription Certificate hereby acknowledges and consents to
the restrictions regarding transfer and exercise of this Right contained in the
Rights Agreement.
No Right may be exercised prior to the earlier of __________, 1997 or
the date on which a registration statement under the Securities Act covering the
Rights and the Shares shall have been declared effective by the SEC, and such
other action as may be required by federal or state law relating to the issuance
or distribution of securities shall have been taken (the "Restricted Period
Termination Date"), or after the Close of Business on the Expiration Date,
unless the Company exercises its option to extend such date. After the Close of
Business on the Expiration Date, the Rights will become void and of no value.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS
SUBSCRIPTION CERTIFICATE SET FORTH ON THE REVERSE HEREOF. SUCH FURTHER
PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS THOUGH FULLY SET FORTH
AT THIS PLACE.
This Subscription
Certificate shall not be valid unless manually countersigned by the Subscription
Agent.
IN WITNESS WHEREOF, the Company has caused this Certificate to be
executed by its duly authorized officers, and the corporate seal hereunto
affixed.
Dated: ________________.
ALPHARMA INC.
By:
---------------------------------
Name:
Title:
[CORPORATE SEAL OF ALPHARMA INC.]
Attest:
By:
--------------------------------
Name:
Title:
Countersigned:
BANKBOSTON, N.A.
as Subscription Agent
By:
--------------------------------
Name:
Title:
-------------------------------------------------------------
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EXHIBIT 4.4
-----------
[FORM OF REVERSE OF SUBSCRIPTION CERTIFICATE]
ALPHARMA INC.
The right evidenced by this subscription certificate is part of a duly
authorized issue of Rights to purchase a maximum of TWO MILLION, TWO HUNDRED
SIXTY-TWO THOUSAND, SIX HUNDRED EIGHTY-SIX (2,262,686) Shares of Class A
Common Stock issued pursuant to a Rights Agreement, dated as of __________, 1997
(the "Rights Agreement"), duly executed and delivered by the Company and
BankBoston, N.A., as Subscription Agent (the "Subscription Agent"). The Rights
Agreement hereby is incorporated by reference in and made a part of this
instrument and is should be referred to for a description of the rights,
limitation of rights, obligations, duties and immunities thereunder of the
Subscription Agent, the Company and the holders (the words "holders" or "holder"
meaning the registered holders or registered holder) of the Rights. A copy of
the Rights Agreement may be inspected at the Subscription Agent Office and is
available upon written request addressed to the Company. All terms used herein
that are defined in the Rights Agreement have the meanings assigned to them
therein.
Rights may be exercised to purchase Shares from the Company before the
Close of Business on the Expiration Date, at the Subscription Price set forth on
the face hereof, subject to adjustment as described in the Rights Agreement.
The holder of the Right evidenced by this Subscription Certificate may exercise
such Right by surrendering the Subscription Certificate, with the form of
election to purchase set forth hereon properly completed and executed, together
with payment of the aggregate Subscription Price, in lawful money of the United
States of America, and any applicable transfer taxes, by wire transfer of
immediately available funds, certified check or official bank check at the
Subscription Agent Office.
In the event that upon any exercise of the Right evidenced hereby the
number of Shares actually purchased shall be less than the total number of
Shares purchasable upon exercise of the Right evidenced hereby, there shall be
issued to the holder hereof, or such holder's assignee, a new Subscription
Certificate evidencing a Right to purchase the Shares not so purchased. After
the Close of Business on the Expiration Date, unexercised Rights shall become
void and of no value.
The Company shall not be required to issue fractions of Shares or any
certificates that evidence fractional Shares.
Subscription Certificates, when surrendered at the Subscription Agent
Office by the registered holder thereof in person or by a legal representative
or attorney duly authorized in writing, may be exchanged, in the manner and
subject to the limitations provided in the Rights Agreement, but without payment
of any service charge, for another Subscription Certificate or Subscription
Certificates of like tenor evidencing a Right to purchase in the aggregate a
like number of Shares.
Upon due presentment for registration of transfer of this Subscription
Certificate at the Subscription Agent Office, a new Subscription Certificate or
Subscription Certificates of like tenor and evidencing a Right or Rights to
purchase in the aggregate a like number of Shares shall be issued to the
transferee in exchange for this Subscription Certificate, subject to the
limitations provided in the Rights Agreement, without charge, except for any tax
or other governmental charge imposed in connection therewith.
The Company and Subscription Agent may deem and treat the registered
holder hereof as the absolute owner of this Subscription Certificate
(notwithstanding any notation of ownership or other writing hereon made by
anyone) for the purpose of any exercise hereof and for any other purposes, and
neither the Company nor the Subscription Agent shall be affected by any notice
to the contrary.
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EXHIBIT 4.4
-----------
ELECTION TO EXERCISE
(TO BE EXECUTED UPON EXERCISE OF THE RIGHT)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Subscription Certificate to purchase ________ Shares and
herewith tenders in payment for such Shares $________ in lawful money of the
United States of America, in accordance with the terms hereof. The undersigned
requests that a certificate representing such Shares be registered and delivered
as follows:
---------------------------------
Name
---------------------------------
Address
---------------------------------
Delivery Address (if different)
If such number of Shares is less than the aggregate number of Shares purchasable
hereunder, the undersigned requests that a new Subscription Certificate
representing the balance of such Shares be registered and delivered as follows:
---------------------------------
Name
---------------------------------
Address
---------------------------------
Delivery Address (if different)
---------------------------------- ------------------------------------------
Social Security or Other Taxpayer Signature
Identification Number of Holder
Note: The above signature must correspond
with the name as written upon the face of
this Subscription Certificate in every
particular, without alteration or
enlargement or any change whatsoever. In
addition, the signature of the holder
hereof must be guaranteed.
Signature Guaranteed:
-----------------------------------
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EXHIBIT 4.4
-----------
ASSIGNMENT
(TO BE EXECUTED BY THE REGISTERED HOLDER IF SUCH
HOLDER DESIRES TO TRANSFER THE SUBSCRIPTION CERTIFICATE)
FOR VALUE RECEIVED, the undersigned registered holder hereby sells assigns
and transfers unto
---------------------------------------
Name of Assignee
---------------------------------------
Address of Assignee
this Subscription Certificate, together with all right, title and interest
therein, and does irrevocably constitute and appoint ________________ attorney,
to transfer the within Subscription Certificate on the books of the Subscription
Agent, with full power of substitution.
---------------------------------- ------------------------------------------
Dated Signature
Note: The above signature must correspond
with the name as written upon the face of
this Subscription Certificate in every
particular, without alteration or
enlargement or any change whatsoever. In
addition, the signature of the holder
hereof must be guaranteed.
----------------------------------
Social Security or Other Taxpayer
Identification Number of Holder
Signature Guaranteed:
-----------------------------------
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