SUPERIOR SERVICES, INC.
and
LaSALLE NATIONAL BANK
Rights Agent
RIGHTS AGREEMENT
Dated as of February 21, 1997
TABLE OF CONTENTS
Section 1. Certain Definitions . . . . . . . . . . . . . . . . . 1
Section 2. Appointment of Rights Agent . . . . . . . . . . . . . 7
Section 3. Issue of Right Certificates . . . . . . . . . . . . . 7
Section 4. Form of Right Certificates . . . . . . . . . . . . . . 9
Section 5. Execution, Authentication and Delivery . . . . . . . . 10
Section 6. Registration, Registration of Transfer and Exchange . 10
Section 7. Mutilated, Destroyed, Lost and Stolen Right
Certificates . . . . . . . . . . . . . . . . . . . . . 11
Section 8. Exercise of Rights; Purchase Price; Expiration Date of
Rights . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 9. Cancellation of Right Certificates . . . . . . . . . . 13
Section 10. Authorization of Shares . . . . . . . . . . . . . . . 13
Section 11. Record Date . . . . . . . . . . . . . . . . . . . . . 13
Section 12. Adjustment of Purchase Price, Number of Shares or
Number of Rights . . . . . . . . . . . . . . . . . . . 14
Section 13. Certificate of Adjusted Purchase Price or Number of
Shares . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 14. Consolidation, Merger or Sale or Transfer of Assets or
Earning Power . . . . . . . . . . . . . . . . . . . . 19
Section 15. Fractional Rights and Fractional Shares . . . . . . . 20
Section 16. Rights of Action . . . . . . . . . . . . . . . . . . . 21
Section 17. Agreement of Right Holders . . . . . . . . . . . . . . 22
Section 18. Right Certificate Holder Not Deemed a Shareholder . . 22
Section 19. Concerning the Rights Agent . . . . . . . . . . . . . 23
Section 20. Duties of Rights Agent . . . . . . . . . . . . . . . . 23
Section 21. Merger or Consolidation or Change of Name of Rights
Agent . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 22. Change of Rights Agent . . . . . . . . . . . . . . . . 26
Section 23. Issuance of New Right Certificates . . . . . . . . . . 27
Section 24. Redemption . . . . . . . . . . . . . . . . . . . . . . 27
Section 25. Mandatory Redemption and Exchange . . . . . . . . . . 28
Section 26. Notice of Certain Events . . . . . . . . . . . . . . . 29
Section 27. Securities Laws Registrations . . . . . . . . . . . . 30
Section 28. Notices . . . . . . . . . . . . . . . . . . . . . . . 30
Section 29. Supplements and Amendments . . . . . . . . . . . . . . 31
Section 30. Successors . . . . . . . . . . . . . . . . . . . . . . 32
Section 31. Benefits of this Agreement . . . . . . . . . . . . . . 32
Section 32. Severability . . . . . . . . . . . . . . . . . . . . . 32
Section 33. Governing Law . . . . . . . . . . . . . . . . . . . . 32
Section 34. Counterparts . . . . . . . . . . . . . . . . . . . . . 32
Section 35. Descriptive Headings . . . . . . . . . . . . . . . . . 32
RIGHTS AGREEMENT
This Rights Agreement, dated as of February 21, 1997, is between
Superior Services, Inc., a Wisconsin corporation (the "Company"), and
LaSalle National Bank, a national banking association chartered under the
laws of the United States, as Rights Agent.
WHEREAS, the Board of Directors of the Company has authorized
the creation of Rights, has authorized and directed the issuance to the
holders of record of Common Shares of the Company outstanding on March 24,
1997 of one Right with respect to each Common Share of the Company
outstanding on March 10, 1997, and has further authorized and directed the
issuance of one Right with respect to each Common Share that will become
outstanding between March 10, 1997 and the earlier of the Distribution
Date, the Redemption Date and the Final Expiration Date; and
WHEREAS, the Board of Directors of the Company has authorized
and directed that the terms and conditions under which the Rights are to
be distributed, including without limitation those affecting the exercise
thereof, the securities or other property to be acquired thereby and the
purchase price to be paid therefor, shall be set forth in a written
agreement between the Company and a rights agent made for the benefit of
the holders of the Rights to the extent so provided therein.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto agree as follows:
Section 1. Certain Definitions. For purposes of this
Agreement, the following terms shall have the meanings indicated:
"Acquiring Person" shall mean any Person who or which, together
with all Affiliates and Associates of such Person, shall be the Beneficial
Owner of 15% or more of the Voting Shares of the Company then outstanding,
but shall not include an Exempt Person. Notwithstanding the foregoing, no
Person shall become an "Acquiring Person" as the result of an acquisition
of Voting Shares by the Company which, by reducing the number of shares
outstanding, increases the proportionate number of shares beneficially
owned by such Person to 15% or more of the Voting Shares of the Company
then outstanding; provided however, that, if a Person shall become the
Beneficial Owner of 15% or more of the Voting Shares of the Company then
outstanding by reason of share purchases by the Company and shall after
such share purchases by the Company and at a time when such Person is the
Beneficial Owner of 15% or more of the Voting Shares of the Company then
outstanding, become the Beneficial Owner of any additional Voting Shares
of the Company, then such Person shall be deemed to be an "Acquiring
Person". Notwithstanding the foregoing, if the Board of Directors of the
Company determines in good faith that a Person who would otherwise be an
"Acquiring Person", as defined pursuant to the prior sentence of this
paragraph, has become such inadvertently, and such Person divests as
promptly as practicable a sufficient number of Common Shares so that such
Person would no longer be an "Acquiring Person," as defined pursuant to
the prior sentence of this paragraph, then such Person shall not be deemed
to be an "Acquiring Person" for any purposes of this Agreement.
"Agreement" shall mean this Rights Agreement as hereafter
amended from time to time.
"Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations
under the Exchange Act as in effect on the date of this Agreement.
A Person shall be deemed the "Beneficial Owner" of and shall be
deemed to "own beneficially" any securities that:
(i) such Person or any of such Person's Affiliates or
Associates beneficially owns, directly or indirectly, within the meaning
of either Section 13 or 16 of the Exchange Act;
(ii) 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 (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; or (B) the right to vote pursuant to any agreement, arrangement
or understanding; or
(iii) 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 (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 or disposing of any securities of the
Company; provided, however, that, for purposes of each clause of this
definition, a Person shall not be deemed the Beneficial Owner of, or to
own beneficially, 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; and provided, further, that, for purposes of each
clause of this definition, a Person shall not be deemed the Beneficial
Owner of, or to own beneficially, any security as a result of any
agreement, arrangement or understanding to vote such security if such
agreement, arrangement or understanding (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) is not also then reportable on Schedule 13D under the Exchange Act (or
any comparable or successor report).
Notwithstanding anything in this definition to the contrary, the
phrase "then outstanding", when used with reference to a Person's
Beneficial Ownership of securities of the Company (or to the number of
such securities "beneficially owned"), 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.
"Business Day" shall mean any day other than a Saturday, Sunday
or a day on which banking institutions in the State of Wisconsin are
authorized or obligated by law or executive order to close.
"Close of Business" on any given date shall mean 5:00 P.M.,
Milwaukee time, on such date; provided, however, that if such date is not
a Business Day it shall mean 5:00 P.M., Milwaukee time, on the next
succeeding Business Day.
"Closing Price", with respect to any security, shall mean the
last sale price, regular way, on a specific Trading Day or, in case no
such sale takes place on such Trading 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 such
security is not then 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 such security is listed or admitted to
trading or, if such security is not then listed or admitted to trading on
any national securities exchange, the last quoted sales 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 or such other system then in
use, or, if on any such Trading Day such 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 such security
selected by the Board of Directors of the Company. If such security is
not publicly held or so listed or traded, "Closing Price" shall mean the
fair value per unit of such security as determined in good faith by the
Board of Directors of the Company, whose determination shall be described
and the Closing Price set forth in a statement filed with the Rights
Agent.
"Common Shares" when used with reference to the Company shall
mean shares of capital stock of the Company which have no preference over
any other class of stock with respect to dividends or assets, which are
not redeemable at the option of the Company and with respect to which no
sinking, purchase or similar fund is provided and shall initially mean the
shares of Common Stock, par value $0.01, of the Company. "Common Shares"
when used with reference to any Person other than the Company shall, if
used with reference to a corporation, mean the capital stock (or equity
interest) with the greatest voting power of such other Person or, if such
other Person is a Subsidiary of another Person, the Person or Persons
which ultimately control such first-mentioned Person and, if used with
reference to any other Person, mean the equity interest in such Person
(or, if the net worth determined in accordance with generally accepted
accounting principles of another Person (other than an individual) which
controls such first-mentioned Person is greater than such first-mentioned
Person, then such other Person) with the greatest voting power or
managerial power with respect to the business and affairs of such Person.
"Company" shall mean Superior Services, Inc., a Wisconsin
corporation, and its successors.
"Company Order" means a written request or order signed in the
name of the Company by its Chairman, its President or a Vice President,
and by its Treasurer, an Assistant Treasurer, its Secretary or an
Assistant Secretary, and delivered to the Rights Agent.
"Corporate Trust Office" means the principal office of the
Rights Agent at which it administers its corporate trust business, which,
in the case LaSalle National Bank, shall, until hereafter changed, be its
office at 000 X. XxXxxxx Xxxxxx, Xxxx 0000, Xxxxxxx, XX 00000.
"Distribution Date" shall mean the earlier of (i) the Shares
Acquisition Date or (ii) the tenth Business Day (or such later date as may
be determined by action of the Board of Directors prior to such time as
any Person becomes an Acquiring Person) after the date of commencement by
any Person (other than an Exempt Person) of, or after the date of the first
public announcement of the intent of any Person (other than an Exempt
Person) to commence, a tender or exchange offer the consummation of which
would result in any Person (other than an Exempt Person) becoming the
Beneficial Owner of 15% or more of the then outstanding Voting Shares of
the Company; provided, however, that an occurrence described in clause
(ii) of this definition above shall not cause the occurrence of the
Distribution Date if the Board of Directors of the Company shall, prior to
such tenth Business Day (or such later xxxx as described in clause (ii)
above), determine that such tender or exchange offer is spurious, unless,
thereafter, the Board of Directors of the Company shall make a contrary
determination, in which event the Distribution Date shall occur on the
later to occur of such tenth Business Day (or such later date as described
in clause (ii) above) and the date of such latter determination.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and any successor statute thereto.
"Exempt Person" shall mean (i) the Company or any Subsidiary of
the Company, in each case including, without limitation, in its fiduciary
capacity for any employee benefit plan of the Company or of any Subsidiary
of the Company, or any entity or trustee holding Common Shares for or
pursuant to the terms of any such plan or for the purpose of funding any
such plan or funding other employee benefits for employees of the Company
or of any Subsidiary of the Company; and (ii) any Grandfathered Person. A
Grandfathered Person shall be:
(i) Xxxxxx X. Xxxx, his spouse and his children (such
persons collectively defined as the "Xxxx Family Members");
(ii) any trust previously established by a Xxxx Family
Member, any estate of, or the executor or administrator of any estate of,
or any guardian or custodian for, a Xxxx Family Member who dies after the
date of this Agreement (such trusts, estates, executors, administrators or
guardians or custodians collectively defined as the "Xxxx Family
Entities"), or any trust established after the date hereof by one or more
Xxxx Family Members or Xxxx Family Entities, provided that one or more
Xxxx Family Members or Xxxx Family Entities, collectively, are the
beneficiaries of at least 80% of the actuarially-determined beneficial
interests in such estate or trust;
(iii) any charitable organization which qualifies as an
exempt organization under Section 501(c) of the Internal Revenue Code of
1986, as amended, which is established by one or more Xxxx Family Members
or Xxxx Family Entities (a "Xxxx Family Charitable Organization"); and
(iv) any corporation, partnership or other entity of which
at least 80% of the voting power and at least 80% of the equity interest
is held, directly or indirectly, by or for the benefit of one or more Xxxx
Family Members, Xxxx Family Entities, or Xxxx Family Charitable
Organizations;
provided, however, that a Grandfathered Person shall cease
to be a Grandfathered Person at the time that (i) all or any part of its
interest in the Common Shares becomes reportable on a Schedule 13D (or any
comparable or successor report) under the Securities Exchange Act of 1934,
as amended, individually or as part of a "group" (as such term is defined
or used under Rule 13d-5(b) of the General Rules and Regulations under the
Securities Exchange Act of 1934, as amended) which beneficially owns,
directly or indirectly, 15% or more of the then outstanding Common Shares
and includes one or more persons (including any Affiliate or Associates
thereof) who (A) are not Grandfathered Persons and (B) individually or in
the aggregate beneficially own, directly or indirectly, in excess of 1% of
the then outstanding Common Shares or (ii) the Grandfathered Person
beneficially owns 25% or more of the then outstanding Common Shares unless
such ownership threshold is exceeded as a result of the acquisition of
Common Shares by the Company which, by reducing the number of shares
outstanding, increases the proportionate number of Common Shares
beneficially owned by such Grandfathered Person to 25% or more of the
Common Shares then outstanding, provided, however, that if the Grandfathered
Person becomes the Beneficial Owner of 25% or more of the Common Shares
then outstanding by reason of such share acquisitions by the Company and
shall thereafter become the Beneficial Owner of any additional Common
Shares, then each such Grandfathered Person shall cease to be a
Grandfathered Person, unless upon becoming the Beneficial Owner of such
additional Common Shares (other than pursuant to a dividend or
distribution paid or made by the Company on the outstanding Common Shares
in Common Shares or pursuant to a split or subdivision of the outstanding
Common Shares), the Grandfathered Person does not beneficially own 25% or
more of the shares of Common Shares then outstanding; and provided,
further, that a Grandfathered Person shall not cease to be a Grandfathered
Person solely as a result of the grant or exercise of options to purchase
Common Shares made pursuant to an employee or director stock option or
similar plan of the Company.
"Final Expiration Date" shall mean the Close of Business on
February 21, 2007.
"Person" shall mean any individual, firm, corporation,
partnership, limited partnership, limited liability company, trust or
other entity, and shall include any successor (by merger or otherwise) of
such entity.
"Purchase Price" shall mean the initial price at which the
holder of a Right may, subject to the terms and conditions of this
Agreement, purchase one (1) Common Share (which initial price is set forth
in Section 8(b) hereof), as such price shall be adjusted pursuant to the
terms of this Agreement.
"Redemption Date" shall mean the time at which the Rights are
redeemed pursuant to Section 24 herein or the time at which all of the
Rights are mandatorily redeemed and exchanged pursuant to Section 25
hereof.
"Redemption Price" shall have the meaning specified in Section
24(b) herein.
"Right" shall mean one Common Share purchase right which
initially represents the right of the registered holder thereof to
purchase one (1) Common Share upon the terms and subject to the conditions
herein set forth.
"Right Certificate" shall mean a certificate, in substantially
the form of Exhibit A attached to this Rights Agreement, evidencing the
Rights registered in the name of the holder thereof.
"Rights Agent" shall mean LaSalle National Bank, a national
banking association chartered under the laws of the United States, and any
successor thereto appointed in accordance with the terms hereof, in its
capacity as agent for the Company and the holders of the Rights pursuant
to this Agreement.
"Rights Register" and "Rights Registrar" shall have the meanings
specified in Section 6.
"Shares Acquisition Date" shall mean the first date of public
announcement (which for purposes of this definition shall include without
limitation a report filed pursuant to Section 13(d) or Section 16(a) of
the Exchange Act) by the Company or an Acquiring Person that an Acquiring
Person has become such.
"Subsidiary" of any Person shall mean any corporation or other
entity of which a majority of the outstanding capital stock or other
equity interests having ordinary voting power in the election of directors
or similar officials is owned, directly or indirectly, by such Person.
"Summary of Rights" shall mean a Summary of Rights to Purchase
Common Shares in substantially the form attached as Exhibit B to this
Agreement.
"Trading Day" shall mean a day on which the principal national
securities market on which any of the Voting Shares of the Company are
listed or admitted to trading is open for the transaction of business or,
if none of the Voting Shares of the Company is listed or admitted to
trading on any national stock market, a Business Day.
"Voting Shares" shall mean (i) the Common Shares of the Company
and (ii) any other shares of capital stock of the Company entitled to vote
generally in the election of directors or entitled to vote together with
the Common Shares in respect of any merger or consolidation of the
Company, any sale of all or substantially all of the Company's assets or
any liquidation, dissolution or winding up of the Company. Whenever any
provision of this Agreement requires a determination of whether a number
of Voting Shares comprising a specified percentage of such Voting Shares
is, was or will be beneficially owned or has been voted, tendered,
acquired, sold or otherwise disposed of or a determination of whether a
Person has offered or proposed to acquire a number of Voting Shares
comprising such specified percentage, the number of Voting Shares
comprising such specified percentage of Voting Shares shall in every such
case be deemed to be the number of Voting Shares comprising the specified
percentage of all the Company's then outstanding Voting Shares.
"Wholly-Owned Subsidiary" of a Person shall mean any corporation
or other entity all the outstanding capital stock or other equity
interests of which having ordinary voting power in the election of
directors or similar officials (other than directors' qualifying shares or
similar interests) are owned, directly or indirectly, by such Person.
Section 2. Appointment of Rights Agent. The Company hereby
appoints the Rights Agent to act as agent for the Company in accordance
with the terms and conditions hereof, and the Rights Agent hereby accepts
such appointment. The Company may from time to time appoint such co-
Rights Agents as it may deem necessary or desirable upon prior written
notice to the Rights Agent.
Section 3. Issue of Right Certificates. (a) From and after
March 10, 1997 until the Distribution Date, (i) outstanding Rights will be
evidenced (subject to the provisions of paragraph (b) of this Section 3)
by the certificates for outstanding Common Shares of the Company 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 of the Company. As soon as practicable after the
Distribution Date, the Rights Agent will send, by first-class, insured,
postage-prepaid mail, to each record holder of Common Shares of the
Company as of the Close of Business on the Distribution Date, at the
address of such holder shown on the stock transfer records of the Company,
a Right Certificate evidencing one Right for each Common Share so held.
From and after the Distribution Date, the Rights will be evidenced solely
by such Right Certificates.
(b) On March 24, 1997, or as soon thereafter as practicable,
the Company will send a copy of a Summary of Rights, by first-class,
postage-prepaid mail, to each record holder of Common Shares of the
Company as of the Close of Business on March 10, 1997, at the address of
such holder shown on the stock transfer records of the Company. With
respect to Common Shares outstanding on March 10, 1997, the certificates
evidencing such Common Shares shall, together with copies of such Summary
of Rights, thereafter also evidence the outstanding Rights (as such Rights
may be amended or supplemented) distributed with respect thereto until the
earlier of the Distribution Date or the date of surrender thereof to the
Company's transfer agent for registration of transfer or exchange of
Common Shares. Until the Distribution Date (or, if earlier, the
Redemption Date or Final Expiration Date), the surrender for registration
of transfer or exchange of any certificate for Common Shares outstanding
as of the Close of Business on March 10, 1997, with or without a copy of
the Summary of Rights attached thereto, shall also constitute the
surrender for registration of transfer or exchange of the outstanding
Rights associated with the Common Shares represented thereby.
(c) The Company agrees that, at any time after March 10, 1997,
and prior to the Distribution Date (or, if earlier, the Redemption Date or
Final Expiration Date) at which it issues any of its Common Shares upon
original issue or out of treasury, it will concurrently distribute to the
holder of such Common Shares one Right for each such Common Share, which
Right shall be subject to the terms and provisions of this Agreement and
will evidence the right to purchase the same number of Common Shares at
the same Purchase Price as the Rights then outstanding.
(d) Certificates for Common Shares issued after March 10, 1997,
but prior to the earliest of the Distribution Date, the Redemption Date
and the Final Expiration Date, whether upon registration of transfer or
exchange of Common Shares outstanding on March 10, 1997, or upon original
issue or out of treasury thereafter, 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
Superior Services, Inc. and LaSalle National Bank dated as of
February 21, 1997 (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 Superior
Services, 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. Superior Services, 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 or acquired by any
Acquiring Person or any Affiliate or Associate thereof (each as
defined in the Rights Agreement) shall, under certain
circumstances, become null and void.
With respect to certificates containing the foregoing legend, until the
Distribution Date, outstanding Rights associated with the Common Shares
represented by such certificates shall be evidenced by such certificates
alone, and the surrender of any such certificate for registration of
transfer or exchange of the Common Shares evidenced thereby shall also
constitute surrender for registration of transfer or exchange of
outstanding Rights (as such Rights may be amended or supplemented)
associated with the Common Shares represented thereby.
(e) If the Company purchases or acquires any of its Common
Shares after March 10, 1997, but prior to the Distribution Date, any
Rights associated with such Common Shares shall be deemed cancelled and
retired so that the Company shall not be entitled to exercise any Rights
associated with the Common Shares which are no longer outstanding.
Section 4. Form of Right Certificates. The form of Right
Certificates (and the forms of election to purchase Common Shares (or
other securities) and of assignment to be printed on the reverse thereof)
shall in form and substance be substantially the same as Exhibit A hereto
and may have such marks of identification or designation and such legends,
summaries or endorsements printed thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of this
Agreement, 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 market on which the Rights may from time to time
be listed or as may be necessary to conform to usage. The Right
Certificates shall be in a machine printable format and in a form
reasonably satisfactory to the Rights Agent. Subject to the provisions of
Section 23 hereof, the Right Certificates, whenever issued, shall be dated
as of the date of authentication thereof, but, regardless of any
adjustments of the Purchase Price or the number of Common Shares (or other
securities) as to which a Right is exercisable (whether pursuant to this
Agreement or any future amendments or supplements to this Agreement), or
both, occurring after March 10, 1997, prior to the date of such
authentication, such Right Certificates may, on their face, without
invalidating or otherwise affecting any such adjustment, expressly entitle
the holders thereof to purchase such number of Common Shares at the
Purchase Price per Common Share as to which a Right would be exercisable
if the Distribution Date were March 10, 1997; no adjustment of the
Purchase Price or the number of Common Shares (or other securities) as to
which a Right is exercisable, or both, effected subsequent to the date of
authentication of any Right Certificate shall be invalidated or otherwise
affected by the fact that such adjustment is not expressly reflected on
the face or in the provisions of such Right Certificate.
Section 5. Execution, Authentication and Delivery. The
Right Certificates shall be executed on behalf of the Company by its
Chairman, its President or one of its Vice Presidents, under its corporate
seal reproduced thereon attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Right
Certificates may be manual or facsimile.
Right Certificates bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them
have ceased to hold such offices prior to the authentication and delivery
of such Right Certificates or did not hold such offices at the date of
authentication of such Right Certificates. At any time and from time to
time after the execution and delivery of this Agreement and prior to the
Distribution Date, the Company may deliver Right Certificates executed by
the Company to the Rights Agent for authentication, together with a
Company Order for the authentication and delivery of such Right
Certificates; and the Rights Agent in accordance with such Company Order
shall authenticate and deliver such Right Certificates as in this
Agreement provided and not otherwise.
No Right Certificate shall be entitled to any benefit under this
Agreement or be valid or obligatory for any purpose unless there appears
on such Right Certificate a certificate of authentication substantially in
the form provided for herein executed by the Rights Agent by manual
signature of an authorized signatory, which need not be the same
authorized signatory for all of the Right Certificates, and such
certificate upon any Right Certificate shall be conclusive evidence, and
the only evidence, that such Right Certificate has been duly authenticated
and delivered hereunder.
Section 6. Registration, Registration of Transfer and
Exchange. From and after the Distribution Date and prior to the earlier
of the Redemption Date and the Final Expiration Date, the Company shall
cause to be kept at the Corporate Trust Office of the Rights Agent a
Rights Register (a "Rights Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the
registration of Right Certificates and of transfers of Rights. The Rights
Agent is hereby appointed the registrar and transfer agent (the "Rights
Registrar") for the purpose of registering Right Certificates and
transfers of Rights as herein provided and the Rights Agent agrees to
maintain such Rights Register in accordance with such regulations so long
as it continues to be designated as Rights Registrar hereunder. Upon
surrender to the Rights Agent for registration of transfer of any Right
Certificate, the Company shall execute, and the Rights Agent shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Right Certificates evidencing a like number
of Rights.
At the option of the holder, Right Certificates may be exchanged
for other Right Certificates upon surrender of the Right Certificates to
be exchanged to the Rights Agent. Whenever any Right Certificates are so
surrendered for exchange, the Company shall execute, and the Rights Agent
shall authenticate and deliver, the Right Certificates which the holder
making the exchange is entitled to receive.
All Right Certificates issued upon any registration of transfer
or exchange of Right Certificates shall be the valid obligations of the
Company, evidencing the same Rights, and entitled to the same benefits
under this Agreement, as the Right Certificates surrendered upon such
registration of transfer or exchange.
Every Right Certificate presented or surrendered for
registration of transfer or exchange shall (if so required by the Company
or the Rights Agent) be duly endorsed, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Rights
Registrar duly executed, by the holder thereof or his attorney duly
authorized in writing. No service charge shall be made for any
registration of transfer or exchange of Right Certificates, but the
Company may require payment by the holder of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with
any registration of transfer or exchange of Right Certificates, other than
exchanges not involving any transfer. The provisions of this Section 6
shall be subject to the provisions of Section 15.
Section 7. Mutilated, Destroyed, Lost and Stolen Right
Certificates. If any mutilated Right Certificate is surrendered to the
Rights Agent, along with a signature guarantee and such other and further
documentation as the Rights Agent may reasonably request, the Company
shall execute and the Rights Agent shall authenticate and deliver in
exchange therefor a new Rights Certificate of like tenor, for a like
number of Rights and bearing a registration number not contemporaneously
outstanding.
If there shall be delivered to the Company and the Rights Agent
(i) evidence to their satisfaction of the destruction, loss or theft of a
Right Certificate and (ii) such security or indemnity, if any, as may be
required by them to save each of them and any agent of either of them
harmless, then, in the absence of notice to the Company or the Rights
Agent that such Right Certificate has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Rights Agent
shall authenticate and deliver, in lieu of any such destroyed, lost or
stolen Right Certificate, a new Right Certificate of like tenor, for a
like number of Rights and bearing a registration number not
contemporaneously outstanding.
Upon the issuance of any new Right Certificate under this
Section, the Company may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the
Rights Agent) connected therewith.
Every new Right Certificate issued pursuant to this Section in
lieu of any destroyed, lost or stolen Right Certificate shall constitute
an additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Right Certificate shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Agreement equally and proportionately with any and all other Right
Certificates duly issued hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Right
Certificates.
Section 8. 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 its Corporate
Trust Office, together with payment of the Purchase Price for each Common
Share (or other securities) as to which the Rights are exercised, at or
prior to the earliest of (i) the Close of Business on the Final Expiration
Date, (ii) the time of redemption on the Redemption Date or (iii) the time
at which such Rights are mandatorily redeemed and exchanged as provided in
Section 25 hereof.
(b) The Purchase Price for each Common Share pursuant to the
exercise of a Right shall initially be ninety dollars and zero cents
($90.00), shall be subject to adjustment from time to time as provided in
Sections 12 and 14 hereof and shall be payable in lawful money of the
United States of America in accordance with paragraph (c) below.
(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 securities 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
10 in cash, or by certified check or cashier's check payable to the order
of the Company, the Rights Agent shall thereupon promptly (i) requisition
from any transfer agent of the Common Shares (or other securities)
certificates for such number of Common Shares (or other securities) as are
to be purchased and registered in such name or names as may be designated
by the registered holder of such Right Certificate or, if appropriate, in
the name of a depositary agent or its nominee, and the Company hereby
irrevocably authorizes its transfer agent to comply with all such
requests, (ii) when appropriate, requisition from the Company the amount
of cash to be paid in lieu of issuance of fractional shares in accordance
with Section 15, (iii) promptly after receipt of such certificates
registered in such name or names as may be designated by such holder,
cause the same to be delivered to or upon the order of the registered
holder of such Right Certificate and (iv) when appropriate, after receipt,
promptly deliver such cash to or upon the order of such holder.
(d) If the registered holder of the Right Certificate shall
exercise less than all the Rights evidenced thereby, a new Right
Certificate evidencing Rights equal 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 15 hereof.
Section 9. Cancellation of Right Certificates. All Right
Certificates surrendered for the purpose of exercise, transfer or exchange
shall, if surrendered to the Company or to any of its other agents, be
delivered to the Rights Agent for such purpose and for cancellation or, if
surrendered to the Rights Agent for such purpose, shall be cancelled by
it. No Right Certificates shall be authenticated in lieu of or in
exchange for any Right Certificates cancelled as provided in this Section
9 except as expressly permitted by any of the provisions of this
Agreement. The Company shall deliver to the Rights Agent for
cancellation, and the Rights Agent shall so cancel, any other Right
Certificate purchased or acquired by the Company. The Rights Agent shall
deliver all canceled Right Certificates to the Company.
Section 10. Authorization of Shares. The Company shall not
be required to reserve and keep available out of its authorized and
unissued Common Shares, the number of Common Shares that will be
sufficient to permit the exercise of outstanding Rights pursuant to the
adjustments set forth in Section 12(a)(ii) or Section 14 or otherwise
until such time as the Rights become exercisable.
The Company covenants and agrees that it will take all such
action as may be necessary to ensure that all Common Shares of the Company
issued upon exercise of Rights shall (subject to payment of the Purchase
Price) be duly authorized, validly issued, fully paid and nonassessable,
except for certain statutory liabilities which may be imposed by Section
180.0622(2)(b) of the Wisconsin Business Corporation Law. The Company
further covenants and agrees that it will pay when due and payable any and
all federal and state transfer taxes and charges which may be payable in
respect of the issuance or delivery of the Right Certificates or of any
Common Shares of the Company upon the exercise of Rights. The Company
shall not, however, be required to pay any transfer tax which may be
payable in respect of any transfer or delivery of Right Certificates to a
Person other than, or in respect of the issuance or delivery of
certificates for Common Shares of the Company upon exercise of Rights
evidenced by Right Certificates in a name other than that of, the
registered holder of the Right Certificate evidencing Rights surrendered
for transfer or exercise or to issue or deliver any certificates for
Common Shares of the Company upon 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 thereof) or until it has been
established to the Company's satisfaction that no such tax is due.
Section 11. Record Date. Each Person in whose name any
certificate for Common Shares of the Company is issued upon the exercise
of, or upon mandatory redemption and exchange 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, (i) in
the case of the exercise of Rights, 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, or (ii) in
the case of the mandatory redemption and exchange of Rights, the date of
such mandatory redemption and exchange; provided, however, that, if the
date of such surrender and payment or mandatory redemption and exchange is
a date upon which the transfer books of the Company for its Common Shares
are closed, such Person shall be deemed to have become the record holder
of such shares on, and such certificate shall be dated, the next
succeeding Business Day on which such transfer books of the Company are
open. Prior to the exercise of (or the mandatory redemption and exchange
of) the Rights evidenced thereby, the holder of a Right Certificate shall
not be entitled to any rights of a holder of Common Shares of the Company
for which the Rights shall be exercisable, including without limitation
the rights to vote, to receive dividends or other distributions or to
exercise any preemptive rights, and shall not be entitled to receive my
notice of any proceedings of the Company, except as provided herein.
Section 12. Adjustment of Purchase Price, Number of Shares or
Number of Rights. The Purchase Price, the number and kind of shares of
capital stock of the Company covered by each Right and the number of
Rights outstanding are subject to adjustment from time to time as provided
in this Section 12.
(a) (i) If the Company shall at any time (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
Company is the continuing or surviving corporation), except as otherwise
provided in this Section 12(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 thereafter shall be
entitled to receive, upon payment of the Purchase Price for the number of
Common Shares for which a Right was exercisable immediately prior to such
date, the aggregate number and kind of shares of capital stock which, if
such Right had been duly exercised immediately prior to such date (at a
time when the Common Shares transfer books of the Company were open), such
holder would have acquired upon such exercise and been entitled to receive
upon payment or effectuation of such dividend, subdivision, combination or
reclassification. If an event occurs which would require an adjustment
under both Section 12(a)(i) and Section 12(a)(ii), the adjustment provided
for in this Section 12(a)(i) shall be in addition to, and shall be made
prior to, any adjustment required pursuant to Section 12(a)(ii).
(ii) Subject to action of the Board of Directors of the Company
pursuant to Section 25 of this Agreement, if any Person shall become an
Acquiring Person, each holder of a Right shall thereafter have a right to
receive, upon exercise thereof at a price equal to the then current
Purchase Price multiplied by the number of Common Shares for which a Right
is then exercisable, in accordance with the terms of this Agreement, such
number of Common Shares of the Company 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 Company's Common
Shares (determined pursuant to Section 12(d)) on the date such Person
became an Acquiring Person. If any Person shall become an Acquiring
Person and the Rights shall then be outstanding, the Company shall not
take any action which would eliminate or diminish the benefits intended to
be afforded by the Rights.
Notwithstanding any other provision of this Agreement, from and
after the time any Person shall become an Acquiring Person, any Rights
that are or were acquired or beneficially owned by any such Acquiring
Person (or any Associate or Affiliate of such Acquiring Person) shall be
null and void and any holder of such Rights shall thereafter have no right
to exercise such Rights under any provision of this Agreement. No Right
Certificate shall be issued pursuant to this Agreement that represents
Rights beneficially owned by an Acquiring Person whose Rights would be
null and void pursuant to the preceding sentence or by 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
null and void pursuant to the preceding sentence or to any Associate or
Affiliate thereof or to any nominee (acting in its capacity as such) 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 null and void pursuant to the preceding sentence or to any
Associate or Affiliate thereof or to any nominee (acting in its capacity
as such) of such Acquiring Person, Associate or Affiliate shall be
cancelled.
(iii) In the event that there shall not be sufficient issued
but not outstanding, or authorized but unissued, Common Shares to permit
the exercise or exchange in full of all outstanding Rights in accordance
with the foregoing subparagraph (ii) or Section 25, the Company shall
either (i) call a meeting of shareholders seeking approval to cause
sufficient additional shares to be authorized and take all such additional
action as is within its power to provide for the authorization of such
additional shares (provided that if such approval is not obtained the
Company will take the action specified in clause (ii) of this sentence) or
(ii) take such action as shall be necessary to ensure and provide, to the
extent permitted by applicable law and any agreements or instruments in
effect on the Shares Acquisition Date to which the Company is a party,
that each Right shall thereafter constitute the right to receive, in the
Company's discretion, either (x) in return for the Purchase Price, debt or
equity securities (including, in the Company's discretion, any available
Common Shares) or other assets (or a combination thereof) having a fair
value equal to twice the Purchase Price, or (y) if the Company elects to
exchange the Rights in accordance with Section 25, debt or equity
securities (including, in the Company's discretion, any available Common
Shares) or other assets (or a combination thereof) having a fair value
equal to the product of the current per share market price of a Common
Share as of the Shares Acquisition Date (determined pursuant to Section
12(d)) multiplied by the number of Common Shares that the holder of the
Rights would be entitled to receive from the Company in mandatory
redemption of, and in exchange for, the outstanding Rights pursuant to
Section 25, where in any case set forth in (x) or (y) above the fair value
of such debt or equity securities or other assets shall be as determined
in good faith by the Board of Directors of the Company, after consultation
with a nationally recognized investment banking firm.
(b) If the Company 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 or exchangeable for Common Shares
or equivalent common shares at a price per Common Share or equivalent
common share (together with any additional consideration required upon
conversion or exchange in the case of a security convertible into or
exchangeable for Common Shares or equivalent common shares), less than the
current per share market price of the Common Shares (determined pursuant
to Section 12(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 (together with the aggregate of any
additional consideration required upon conversion or exchange in the case
of any convertible or exchangeable 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 or for which the convertible
or exchangeable securities so to be offered are initially convertible or
exchangeable). In case all or part of such subscription or purchase price
may be paid 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
Company, whose determination shall be described in a statement filed with
the Rights Agent. Common Shares owned by or held for the account of the
Company or any of its Subsidiaries shall not be deemed outstanding for the
purpose of any computation described in this Section 12(b). The
adjustment described in this Section 12(b) shall be made successively
whenever such a record date is fixed; and, if none of such rights, options
or warrants is 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) If the Company 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 Company is the continuing or surviving corporation) of evidences of
indebtedness or assets (other than a regular quarterly cash dividend or a
dividend payable in Common Shares) or subscription rights or warrants
(excluding those referred to in Section 12(b)), the Purchase Price to be
in effect after such record date shall be determined by multiplying the
Purchase Price in effect immediately prior to such record date by a
fraction, the numerator of which shall be the then current per share
market price of the Common Shares (determined pursuant to Section 12(d))
on such record date, less the fair market value (as determined in good
faith by the Board of Directors of the Company, 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. Such adjustments shall be made successively whenever such
a record date is fixed; and, if 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) For the purpose of any computation hereunder, the "current
per share market price" of the Common Shares on any date shall be deemed
to be the average of the daily Closing Prices per share of such Common
Shares for the 30 consecutive Trading Days immediately prior to such date;
provided, however, that, if the issuer of such Common Shares shall
announce (A) a dividend or distribution on such Common Shares payable in
such Common Shares or securities convertible into such Common Shares or
(B) any subdivision, combination or reclassification of such Common
Shares, and the ex-dividend date for such dividend or distribution, or the
record date for such subdivision, combination or reclassification, shall
occur during such period of 30 consecutive Trading Days, then, and in each
such case, the current per share market price of the Common Shares shall
be appropriately adjusted to reflect the current market price per Common
Share equivalent.
(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 12(e) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All
calculations under this Section 12 shall be made to the nearest cent or to
the nearest ten-thousandth of a Common Share or other share, as the case
may be, and references herein to the "number of Common Shares" (or similar
phrases) shall be construed to include fractions of a Common Share.
Notwithstanding the first sentence of this Section 12(e), any adjustment
required by this Section 12 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 thirtieth day preceding the Final Expiration Date.
(f) If as a result of an adjustment made pursuant to Section
12(a), the holder of any Right thereafter exercised shall become entitled
to receive any shares of capital stock of the Company 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 shares contained in this Section 12, and
the provisions of this Agreement, including without limitation Sections 8,
10, 11 and 14, with respect to the Common Shares shall apply on like terms
to any such other shares.
(g) All Rights originally issued by the Company subsequent to
any adjustment made to the Purchase Price hereunder shall, whether or not
the Right Certificate evidencing such Rights reflects such adjusted
Purchase Price, 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 Company shall have exercised its election as
provided in Section 12(i), upon each adjustment of the Purchase Price
pursuant to Section 12(b) or 12(c), each Right outstanding immediately
prior to the making of such adjustment shall thereafter evidence the right
to purchase, at the adjusted Purchase Price per Common Share, that number
of Common Shares 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 Company may elect on or after the date of any
adjustment of the Purchase Price to adjust the number of Rights
outstanding in lieu of any adjustment in the number of Common Shares
purchasable upon the exercise of a Right. Each Right 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 of the Purchase Price. Each Right held of record
prior to such adjustment of the number of Rights shall become that number
of Rights (calculated to the nearest one ten-thousandth) obtained by
dividing the Purchase Price in effect immediately prior to adjustment of
the Purchase Price by the Purchase Price in effect immediately after
adjustment of the Purchase Price. The Company shall make a public
announcement, along with simultaneous written notice to the Rights Agent,
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. Until such record date, however, any
adjustment in the number of Common Shares for which a Right shall be
exercisable made as required by this Agreement shall remain in effect. If
Right Certificates have been issued, upon each adjustment of the number of
Rights pursuant to this Section 12(i), the Company shall, as promptly as
practicable, cause to be distributed to holders of record of Right
Certificates on such record date Right Certificates evidencing, subject to
Section 15 hereof, the additional Rights to which such holders shall be
entitled as a result of such adjustment, or, at the option of the Company,
shall cause to be distributed to such holders of record in substitution
and replacement for the Right Certificates held by such holders prior to
the date of adjustment, and upon surrender thereof, if required by the
Company, new Right Certificates evidencing all the Rights to which such
holders shall be entitled after such adjustment. Right Certificates so to
be distributed shall be issued, executed and authenticated 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) In any case in which this Section 12 shall require that an
adjustment in the Purchase Price be made effective as of a record date for
a specified event, the Company may elect to defer until the occurrence of
such event the issuance to the holder of any Right exercised after such
record date of the Common Shares or other capital stock or securities of
the Company, if any, issuable upon such exercise over and above the Common
Shares or other capital stock or securities of the Company, if any,
issuable upon such exercise on the basis of the Purchase Price in effect
prior to such adjustment; provided, however, that the Company shall
deliver to such holder a due xxxx or other appropriate instrument
evidencing such holder's right to receive such additional securities upon
the occurrence of the event requiring such adjustment.
(l) Notwithstanding anything in this Section 12 to the
contrary, the Company shall be entitled to make such reductions in the
Purchase Price, in addition to those adjustments expressly required by
this Section 12, as and to the extent that it in its sole discretion shall
determine to be advisable in order that any combination or subdivision of
the Common Shares, issuance wholly for cash of any of the 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 in
subsection (b) of this Section 12, hereafter effected by the Company to
holders of its Common Shares shall not be taxable to such shareholders.
Section 13. Certificate of Adjusted Purchase Price or Number
of Shares. Whenever an adjustment is made as provided in Section 12 or 14
hereof, the Company shall (a) promptly prepare a certificate setting forth
such adjustment, and a brief statement of the facts accounting for such
adjustment, (b) promptly file with the Rights Agent and with each transfer
agent for the Common Shares of the Company a copy of such certificate and
(c) mail a brief summary thereof to each holder of record of a Right
Certificate in accordance with Section 28 hereof.
Section 14. Consolidation, Merger or Sale or Transfer of
Assets or Earning Power. If, directly or indirectly, (a) the Company
shall consolidate with, or merge with and into, any other Person, (b) any
Person shall merge with and into the Company and the Company shall be the
continuing or surviving corporation of such merger and, in connection with
any such merger, all or part of the Common Shares of the Company shall be
changed into or exchanged for stock or other securities of any other
Person (or the Company) or cash or any other property, or (c) the Company
shall sell or otherwise transfer (or one or more of its Subsidiaries shall
sell or otherwise transfer), in one or a series of two or more
transactions, assets of the Company or its Subsidiaries which constitute
more than 50% of the assets or which produce more than 50% of the earning
power of the Company and is Subsidiaries (taken as a whole) to any Person
or any Affiliate or Associate of such Person other than the Company or one
or more of its Wholly-Owned Subsidiaries, then, and in each such case, the
Company agrees that, as a condition to engaging in any such transaction,
it will make or cause to be made proper provision 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, such number of Common Shares of such other Person
(including the Company as successor thereto or as the surviving
corporation) or, if such other Person is a Subsidiary of another Person,
of the Person or Persons (other than individuals) which ultimately control
such first-mentioned Person, as shall be equal to the result obtained by
(X) 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 12(a)(ii)) and dividing
that product by (Y) 50% of the current per share market price of the
Common Shares of such other Person (determined pursuant to Section 12(d))
on the date of consummation of such consolidation, merger, sale or
transfer; (ii) the issuer 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 Company pursuant to this
Agreement; (iii) the term "Company", as used herein, shall thereafter be
deemed to refer to such issuer; and (iv) such issuer shall take such steps
(including without limitation the reservation of a sufficient number of
shares of its Common Shares in accordance with Section 10) 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. The Company shall not enter into any transaction of the kind
referred to in this Section 14 if at the time of such transaction there
are outstanding any rights, warrants, instruments or securities or any
agreement or arrangements which, as a result of the consummation of such
transaction, would substantially diminish or otherwise eliminate the
benefits intended to be afforded by the Rights. The Company shall not
consummate any such consolidation, merger, sale or transfer unless prior
thereto the Company and such issuer shall have excused and delivered to
the Rights Agent an agreement supplemental to this Agreement complying
with the provisions of this Section 14. The provisions of this Section 14
shall similarly apply to successive mergers or consolidations or sales or
other transfers. For the purposes of this Section 14, 50% of the assets
of the Company and its Subsidiaries shall be determined by reference to
the book value of such assets as set forth in the most recent consolidated
balance sheet of the Company and its Subsidiaries (which need not be
audited) and 50% of the earning power of the Company and its Subsidiaries
shall be determined by reference to the mathematical average of the
operating income resulting from the operations of the Company and its
Subsidiaries for the two most recent full fiscal years as set forth in the
consolidated financial statements of the Company and its Subsidiaries for
such years; provided, however, that if the Company has, during such
period, engaged in one or more transactions to which purchase accounting
is applicable, such determination shall be made by reference to the pro
forma operating income of the Company and its Subsidiaries giving effect
to such transactions as if they had occurred at the commencement of such
two-year period.
Section 15. Fractional Rights and Fractional Shares. (a)
The Company shall not be required to issue or distribute Right
Certificates which evidence fractional Rights. If, on the Distribution
Date or thereafter, as a result of any adjustment effected pursuant to
Section 12(i) or otherwise hereunder, a Person would otherwise be entitled
to receive a Right Certificate evidencing a fractional Right, the Company
shall, in lieu thereof, pay or cause to be paid to such Person an amount
in cash equal to the same fraction of the current market value of a whole
Right. For the purpose of this Section 15(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.
(b) The Company shall not be required to issue fractions of
Common Shares upon exercise of the Rights or to distribute scrip or
certificates which evidence fractional Common Shares. If, on the
Distribution Date or thereafter, a Person would otherwise be entitled to
receive a fractional Common Share, the Company shall, in lieu thereof, pay
to such Person at the time such Right is exercised as herein provided an
amount in cash equal to the same fraction of the current market value of
one Common Share. For purposes of this Section 15(b), the current market
value of a Common Share shall be the Closing Price of a Common Share for
the Trading Day immediately prior to the date of such exercise.
(c) Should any adjustment contemplated by Section 12(a)(ii) or
any mandatory redemption and exchange contemplated by Section 25 occur,
the Company shall not be required to issue fractions of Common Shares upon
exercise of the Rights or to distribute scrip or certificates which
evidence fractional Common Shares. If after any such adjustment or
mandatory redemption and exchange, a Person would otherwise be entitled to
receive a fractional Common Share of the Company upon exercise of any
Right Certificate or upon mandatory redemption and exchange as
contemplated by Section 25, the Company shall, in lieu thereof, pay to
such Person at the time such Right is exercised as herein provided or upon
such mandatory redemption and exchange an amount in cash equal to the same
fraction of the current market value of one Common Share. For purposes of
this Section 15(c), the current market value of a Common Share shall be
the Closing Price of a Common Share for the Trading Day immediately prior
to the date of such exercise or the date of such mandatory redemption and
exchange.
(d) The holder of a Right by the acceptance thereof expressly
waives his right to receive any fractional Rights or any fractional shares
upon exercise or mandatory redemption and exchange of a Right (except as
provided above).
Section 16. Rights of Action. (a) All rights of action in
respect of the obligations and duties owed to the holders of the Rights
under this Agreement are vested in the registered holders of the Rights;
and, without the consent of the Rights Agent or of the holder of any other
Rights, any registered holder of any Rights may, in his own behalf and for
his own benefit, enforce, and may institute and maintain any suit, action
or proceeding, judicial or otherwise, against the Company to enforce, or
otherwise to act in respect of, such holder's right to exercise such
Rights in the manner provided in the Right Certificate evidencing such
Rights 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.
(b) No right or remedy herein conferred upon or reserved to the
registered holder of Rights is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by
law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy, whether hereunder or
otherwise, shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy.
(c) No delay or omission of any registered holder of Rights to
exercise any right or remedy accruing hereunder shall impair any such
right or remedy or constitute a waiver of default hereunder or an
acquiescence therein. Every right and remedy given hereunder or by law to
such holders may be exercised from time to time, and as often as may be
deemed expedient, by such holders.
Section 17. Agreement of Right Holders. Every holder of a
Right, by accepting the same, consents and agrees with the Company and the
Rights Agent and with every other holder of a Right that:
(a) prior to the Distribution Date, the Rights will be
transferable only in connection with the transfer of the Common Shares of
the Company;
(b) after the Distribution Date, the Right Certificates are
transferable only on the registry books of the Rights Agent if surrendered
at the Corporate Trust Office of the Rights Agent duly endorsed or
accompanied by a proper instrument of transfer, along with such other and
further documentation as the Rights Agent may reasonably request;
(c) the Company and the Rights Agent may deem and treat the
person in whose name the Right Certificate (or, prior to the Distribution
Date, the associated Common Shares certificate) is registered as the
absolute owner thereof and of the Rights evidenced thereby
(notwithstanding any notations of ownership or writing on the Right
Certificates or the associated Common Shares certificate made by anyone
other than the Company or the Rights Agent) for all purposes, and neither
the Company nor the Rights Agent shall be affected by any notice to the
contrary; and
(d) notwithstanding anything in this Agreement to the contrary,
neither the Company nor the Rights Agent shall have any liability to any
holder of a Right or other Person as a result of its inability to perform
any of its obligations under this Agreement by reason of any preliminary
or permanent injunction or other order, decree or ruling issued by a court
of competent jurisdiction or by a governmental, regulatory or
administrative agency or commission, or any statute, rule, regulation or
executive order promulgated or enacted by any governmental authority
prohibiting or otherwise restraining performance of such obligation;
provided that the Company must use its best efforts to have any such
order, decree or ruling lifted or otherwise overturned as soon as
possible.
Section 18. Right Certificate Holder Not Deemed a
Shareholder. No holder, as such, of any Right (whether or not then
evidenced by a Right Certificate) shall be entitled to vote, receive
dividends or be deemed for any purpose the holder of Common Shares of the
Company or any other securities of the Company which may at any time be
issuable on the exercise (or mandatory redemption and exchange) of the
Rights represented thereby, nor shall anything contained herein or in any
Right Certificate be construed to confer upon any such holder, as such,
any of the rights of a shareholder of the Company, including without
limitation any right to vote for the election of directors or upon any
matter submitted to shareholders at any meeting thereof, to give or
withhold consent to any corporate action, to receive notice of meetings or
other actions affecting shareholders (except as provided in Section 26) or
to receive dividends or subscription rights until the Right or Rights
evidenced by such Right Certificate shall have been exercised (or
mandatorily redeemed and exchanged) in accordance with the provisions
hereof.
Section 19. Concerning the Rights Agent. The Company agrees
to pay to the Rights Agent such compensation as shall be agreed to in
writing between the Company and the Rights Agent for all services rendered
by it hereunder and, from time to time, on demand of the Rights Agent, its
reasonable expenses and counsel fees and expenses and other disbursements
incurred in the administration and execution of this Agreement and the
exercise and performance of its duties hereunder. The Company also agrees
to indemnify the Rights Agent for, and to hold it harmless against, any
loss, liability or expense, incurred without gross 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.
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 Common Shares of the Company or other
securities of the Company, Company Order, 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 executed by the proper person or
persons and, where necessary, verified or acknowledged, or otherwise upon
the advice of its counsel as set forth in Section 20 hereof.
The provisions of this Section 19 shall survive the expiration
of the Rights and the termination of this Agreement.
Section 20. Duties of Rights Agent. The Rights Agent
undertakes the duties and obligations expressly imposed by this Agreement,
and no implied duties or obligations shall be read into this Agreement
against the Rights Agent, upon the following terms and conditions, by all
of which the Company and the holders of Right Certificates, by their
acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel of its
selection (who may be legal counsel for the Company), and the opinion of
such counsel shall be full and complete authorization and protection to
the Rights Agent as to any action taken or omitted by it in good faith and
in accordance with such opinion.
(b) Whenever in the performance of its duties under this
Agreement the Rights Agent shall deem it necessary or desirable that any
fact or matter be proved or established by the Company prior to taking or
suffering any action hereunder, such fact or matter (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, the President, any Vice President, the Treasurer, any
Assistant Treasurer, the Secretary or any Assistant Secretary of the
Company and delivered to the Rights Agent, and such certificate shall be
full authorization to the Rights Agent for any action taken or suffered in
good faith by it under the provisions of this Agreement in reliance upon
such certificate.
(c) The Rights Agent shall be liable hereunder to the Company
or 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 authentication thereof) or be
required to verify the same, but all such statements and recitals are and
shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not have any responsibility with
respect to the validity of this Agreement or the execution and delivery
hereof (except the due execution hereof by the Rights Agent) or with
respect to the validity or execution of any Right Certificate (except its
authentication thereof); nor shall it be responsible for any breach by the
Company of any covenant or condition contained in this Agreement or in any
Right Certificate; nor shall it be responsible for any change in the
exercisability of the Rights (including the Rights becoming void pursuant
to Section 12(a)(ii) hereof) or any adjustment in the terms of the Rights
(including the manner, method or amount thereof) provided for in Sections
3, 12, 14, 24 and 25, or the ascertainment 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 duly authorized, validly issued, fully paid and
nonassessable except for certain statutory liabilities which may be
imposed by Section 180.0622(2)(b) of the Wisconsin Business Corporation
Law; nor shall the Rights Agent be responsible for the legality of the
terms hereof in its capacity as an administrative
(f) The Company agrees that it will perform, execute,
acknowledge and deliver or cause to be performed, executed, acknowledged
and delivered all such further and other acts, instruments and assurances
as may reasonably be required by the Rights Agent for the carrying out or
performing by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to
accept instructions with respect to the performance of its duties
hereunder from any one of the Chairman, the President, any Vice President,
the Treasurer, any Assistant Treasurer, the Secretary or any Assistant
Secretary of the Company, and to apply to such officers for advice or
instructions in connection with its duties, and it shall not be liable for
any action taken or suffered to be taken by it in good faith in accordance
with instructions of any such officer or for any delay in acting while
waiting for those instructions. Any application by the Rights Agent for
written instructions from the Company may, at the option of the Rights
Agent, set forth in writing any action proposed to be taken or omitted by
the Rights Agent under this Agreement and the date on and/or after which
such action shall be taken or such omission shall be effective. The Rights
Agent shall not be liable for any action taken by, or omission of, the
Rights Agent in accordance with a proposal included in such application on
or after the date specified in such application (which date shall not be
less than three Business Days after the date any officer of the Company
actually receives such application, unless any such officer shall have
consented in writing to any earlier date) unless prior to taking any such
action (or the effective date in the case of an omission), the Rights
Agent shall have received written instructions in response to such
application specifying the action to be taken or omitted.
(h) The Rights Agent and any shareholder, director, officer or
employee of the Rights Agent may buy, sell or deal in any of the Rights or
other securities of the Company or become pecuniarily interested in any
transaction in which the Company may be interested, or contract with or
lend money to the Company or otherwise act as fully and freely as though
it were not Rights Agent under this Agreement. Nothing herein shall
preclude the Rights Agent from acting in any other capacity for the
Company, including as transfer agent and/or registrar for the Common
Shares.
(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 of the Company resulting
from any such act, default, neglect or misconduct provided reasonable care
was exercised in the selection and continued employment thereof.
(j) No provision of this Agreement shall require the Rights
Agent to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder or in the
exercise of its rights if there shall be reasonable grounds for believing
that repayment of such funds or adequate indemnification against such risk
or liability is not reasonably assured to it.
(k) If, with respect to any Right Certificate surrendered to
the Rights Agent for exercise or transfer, the portion of the form of
assignment or form of election to purchase (as the case may be) certifying
that the Rights are not beneficially owned by an Acquiring Person or an
Affiliate or Associate thereof has not been completed or indicates that
such Rights are beneficially owned by such Person, the Rights Agent shall
not take any further action with respect to such requested exercise or
transfer without the written consent of the Company.
(l) In addition to the foregoing, the Rights Agent shall be
protected and shall incur no liability for, or in respect of, any action
taken or omitted by it in connection with its administration of this
Agreement if such acts or omissions are in reliance upon (i) the proper
execution of the certification concerning beneficial ownership appended to
the form of assignment and the form of election to exercise attached to
any Right Certificate unless the Rights Agent shall have actual knowledge
that, as executed, such certification is untrue, or (ii) the non-execution
of such certification including, without limitation, any refusal to honor
any otherwise permissible assignment or election by reason of such non-
execution.
(m) The Company agrees to give the Rights Agent prompt written
notice of any event or ownership which would prohibit the exercise or
transfer of the Right Certificates.
Section 21. 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 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 22. If at the time such successor Rights
Agent shall succeed to the agency created by this Agreement any of the
Right Certificates shall have been authenticated but not delivered, any
such successor Rights Agent may adopt the authentication of the
predecessor Rights Agent and deliver such Right Certificates so
authenticated, and, if at that time any of the Right Certificates shall
not have been authenticated, any successor Rights Agent may authenticate
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.
If at any time the name of the Rights Agent shall be changed and
at such time any of the Right Certificates shall have been authenticated
but not delivered, the Rights Agent may adopt the authentication under its
prior name and deliver Right Certificates so authenticated; and, in case
at that time any of the Right Certificates shall not have been
authenticated, the Rights Agent may authenticate 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 22. Change of Rights Agent. The Rights Agent or any
successor Rights Agent may resign and be discharged from its duties under
this Agreement upon 30 days' notice in writing mailed to the Company by
first-class mail. The Company may remove the Rights Agent or any
successor Rights Agent upon 30 days' notice in writing, mailed to the
Rights Agent or successor Rights Agent, as the case may be, by first-class
mail. If the Rights Agent shall resign or be removed or shall otherwise
become incapable of acting, the Company shall appoint a successor to the
Rights Agent. If the Company shall fail to make such appointment within a
period of 30 days after giving notice of such removal or after it has been
notified in writing of such resignation or incapacity by the resigning or
incapacitated Rights Agent or by the registered holder of a Right
Certificate (or, prior to the Distribution Date, of Common Shares), then
the Rights Agent or any registered holder of a Right Certificate (or,
prior to the Distribution Date, of Common Shares) may apply to any court
of competent jurisdiction for the appointment of a new Rights Agent. Any
successor Rights Agent, whether appointed by the Company or by such a
court, shall be a corporation organized and doing business under the laws
of the United States or of any state of the United States, which is
authorized under such laws to exercise corporate trust powers and is
subject to supervision or examination by federal or state authority and
which has at the time of its appointment as Rights Agent a combined
capital and surplus of at least $50 million. After appointment, the
successor Rights Agent shall be vested with the same powers, rights,
duties and responsibilities as if it had been originally named as Rights
Agent without further act or deed; but the predecessor Rights Agent shall
deliver and transfer to the successor Rights Agent any property at the
time held by it hereunder, and execute and deliver any further assurance,
conveyance, act or deed necessary for the purpose. Not later than the
effective date of any such appointment, the Company shall file notice
thereof in writing with the predecessor Rights Agent and each transfer
agent for the Common Shares of the Company 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 22, however, or any defect
therein, shall not affect the legality or validity of the resignation or
removal of the Rights Agent or the appointment of the successor Right
Agent, as the case may be.
Section 23. Issuance of New Right Certificates.
Notwithstanding any of the provisions of this Agreement or of the Rights
to the contrary, the Company may, at its option, issue new Rights
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 per share and the number or kind or class of shares or other
securities purchasable under the Right Certificates made in accordance
with the provisions of this Agreement.
Section 24. Redemption. (a) The Rights may be redeemed by
action of the Board of Directors of the Company pursuant to paragraph (b)
of this Section 24, or may be redeemed and exchanged by action of the
Board of Directors of the Company pursuant to Section 25 herein, but shall
not be redeemed in any other manner.
(b) The Board of Directors of the Company may, at its option,
at any time prior to the time any Person becomes an Acquiring Person
redeem all but not less than all the then outstanding Rights at a
redemption price of one cent ($0.01) per Right then outstanding,
appropriately adjusted to reflect any adjustment in the number of Rights
outstanding pursuant to Section 12(i) herein (such redemption price being
hereinafter referred to as the "Redemption Price"). Any such 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.
(c) The right of the registered holders of Right Certificates
to exercise the Rights evidenced thereby or, if the Distribution Date has
not theretofore occurred, the inchoate right of the registered holders of
Rights to exercise the same shall, without notice to such holders or to
the Rights Agent and without further action, terminate and be of no
further force or effect effective as of the time of adoption by the Board
of Directors of the Company of a resolution authorizing and directing the
redemption of the Rights pursuant to paragraph (b) of this Section 24 (or,
alternatively, if the Board of Directors qualified such action as to time,
basis or conditions, then at such time, on such basis and with such
conditions as the Board of Directors may have established pursuant to such
paragraph (b)); thereafter, the only right of the holders of Rights shall
be to receive the Redemption Price. The Company shall promptly give
public notice of any redemption resolution pursuant to paragraph (b) of
this Section 24; 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 the adoption of any redemption
resolution pursuant to paragraph (b) of this Section 24, the Company shall
give notice of such redemption to the Rights Agent and to the holders of
the then outstanding Rights by mailing such notice to all such holders at
their last addresses as they appear upon the registry books of the Rights
Agent or, prior to the Distribution Date, on the registry books of the
transfer agents 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 shall state the
method by which the payment of the Redemption Price will be made.
(d) Neither the Company nor any of its Affiliates or Associates
may acquire (other than in the case of such Affiliates and Associates, in
their capacity as holders of Common Shares of the Company), redeem or
purchase for value any Rights at any time in any manner other than as
specifically set forth in this Section 24 or in Section 25 herein, and
other than in connection with the purchase of Common Shares prior to the
Distribution Date.
Section 25. Mandatory Redemption and Exchange. (a) The
Board of Directors of the Company may, at its option, at any time after
any Person becomes an Acquiring Person, issue Common Shares of the Company
in mandatory redemption of, and in exchange for, all or part of the then
outstanding and exercisable Rights (which shall not include Rights that
have become null and void pursuant to the provisions of Section 12(a)(ii)
hereof) at an exchange ratio of one Common Share for each Common Share for
which each Right is then exercisable pursuant to the provisions of Section
12(a)(ii) hereof. Notwithstanding the foregoing, the Board of Directors
shall not be empowered to effect such redemption and exchange at any time
after any Person (other than the Company, any Subsidiary of the Company,
any employee benefit plan of the Company or of any such Subsidiary, or any
trustee of or fiduciary with respect to any such plan when acting in such
capacity), together with all Affiliates and Associates of such Person,
becomes the Beneficial Owner of 50% or more of the Voting Shares then
outstanding.
(b) Immediately upon the action of the Board of Directors of
the Company ordering the mandatory redemption and exchange of any Rights
pursuant to subsection (a) of this Section 25 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 such number of Common Shares as is provided in paragraph (a)
of this Section 25. The Company shall promptly give public notice of any
such redemption and exchange; provided, however, that the failure to give,
or any defect in, such notice shall not affect the validity of such
redemption and exchange. The Company promptly shall mail a notice of any
such redemption and exchange to the Rights Agent and to all 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 mandatory redemption and exchange shall state
the method by which the redemption and exchange of the Common Shares for
Rights will be effected and, in the event of any partial redemption and
exchange, the number of Rights which will be redeemed and exchanged. Any
partial redemption and exchange shall be effected pro rata based on the
number of Rights (other than Rights which have become null and void
pursuant to the provisions of Section 12(a)(ii) hereof) held by each
holder of Rights.
Section 26. Notice of Certain Events. If the Company shall,
on or after the Distribution Date, propose (a) to pay any dividend or
other distribution payable in stock of any class of the Company or any
Subsidiary of the Company to the holders of its Common Shares, (b) to
offer to the holders of its Common Shares rights, options or warrants to
subscribe for or to purchase any additional Common Shares or shares of
stock of any class or any other securities, rights, options or warrants,
(c) to make any other distribution to the holders of its Common Shares
(other than a regular quarterly cash dividend), (d) to effect any
reclassification of its Common Shares (other than a reclassification
involving only the subdivision of outstanding Common Shares), (e) 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 more than 50% of
the assets or earning power of the Company and its Subsidiaries
(determined as provided in Section 14 herein) to, any other Person (other
than the Company or a Wholly-Owned Subsidiary or Wholly-Owned
Subsidiaries), (f) to effect the liquidation, dissolution or winding up of
the Company or (g) if the Rights have theretofore become exercisable with
respect to Common Shares pursuant to Section 12(a)(ii) herein, to declare
or pay any dividend or other distribution on the Common Shares payable in
Common Shares or in stock of any other class of the Company or any
Subsidiary of the Company or to effect a subdivision or combination of the
Common Shares (by reclassification or otherwise than by payment of
dividends in Common Shares) then, in each such case, the Company shall
give to the Rights Agent and to each holder of a Right Certificate, in
accordance with Section 28 hereof, notice of such proposed action, which
shall specify the date of authorization by the Board of Directors of the
Company of, and record date for, such stock dividend or such distribution
of rights or warrants or the date on which such reclassification,
consolidation, merger, sale, transfer, liquidation, dissolution, winding
up, subdivision or combination is to take place and the date of
participation therein by the holders of the Common Shares of the Company
if any such date is to be fixed. Such notice shall be so given in the
case of any action covered by clause (a), (b), (c) or (g) above at least
20 days prior to the record date for determining holders of the Common
Shares of the Company, for purposes of such action, and in the case of any
such other action, at least 20 days prior to the date of the taking of
such proposed action or the date of participation therein by the holders
of the Common Shares of the Company, whichever shall be the earlier.
If any of the events set forth in Section 12(a)(ii) of this
Agreement shall occur, then, in any such case, the Company shall as soon
as practicable thereafter give to the Rights Agent and to each holder of a
Right Certificate, in accordance with Section 28 hereof, a notice of the
occurrence of such event, which shall specify the event and the
consequences of the event to holders of Rights under Section 12(a)(ii)
hereof.
Section 27. Securities Laws Registrations. To the extent
legally required, the Company agrees that it will prepare and file, no
later than the Distribution Date, and will use its reasonable best efforts
to cause to be declared effective, a registration statement under the
Securities Act of 1933, as amended, registering the offering, sale and
delivery of the Common Shares issuable upon exercise of the Rights, and
the Company will, thereafter, use its best efforts to maintain such
registration statement (or another) continuously in effect so long as any
Rights remain outstanding and exercisable with respect to Common Shares.
Should the Rights become exercisable with respect to securities of the
Company or one of its Subsidiaries other than Common Shares, the Company
agrees that it will, to the extent legally required, promptly thereafter
prepare and file, or cause to be prepared and filed, and will use its
reasonable best efforts to cause to be declared effective, a registration
statement under such Act registering the offering, sale and delivery of
such other securities and the Company will, thereafter, use its best
efforts to maintain such registration statement (or another) continuously
in effect so long as any outstanding Rights are exercisable with respect
to such securities. The Company further agrees to use its reasonable best
efforts, from and after the Distribution Date, to qualify or register for
sale the Common Shares or other securities of the Company or one of its
Subsidiaries issuable upon exercise of the Rights under the securities or
"blue sky" laws (to the extent legally required thereunder) of all
jurisdictions in which registered holders of Right Certificates reside
determined by reference to the Rights Register.
Section 28. Notices. Notices or demands authorized by this
Agreement to be given or made by the Rights Agent or by the holder of any
Right Certificate to or on the Company shall be sufficiently given or made
if sent by first-class mail, postage prepaid, addressed (until another
address is filed in writing with the Rights Agent) as follows:
Superior Services, Inc.
00000 Xxxx Xxxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxxxx 00000
Attention: Secretary
with a copy to:
Xxxxx & Xxxxxxx
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Any notice or demand authorized by this Agreement to be given or made by
the Company or by the holder of any Right Certificate to or on the Rights
Agent shall be sufficiently given or made if sent by first-class mail,
postage prepaid, addressed (until another address is filed in writing with
the Company) as follows:
LaSalle National Bank
000 X. XxXxxxx Xxxxxx, Xxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Department
Notices or demands authorized by this Agreement to be given or made by the
Company 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 Rights Register of the Company or, prior to the Distribution Date,
on the stock transfer records for the Common Shares of the Company.
Section 29. Supplements and Amendments. The Company may from
time to time supplement or amend this Agreement (which supplement or
amendment shall be evidenced by a writing signed by the Company and the
Rights Agent) without the approval of any holders of Right Certificates in
order to cure any ambiguity, to correct or supplement any provision
contained herein which may be defective or inconsistent with any other
provisions herein, to make any other provisions in regard to matters or
questions arising hereunder, or to add, delete, modify or otherwise amend
any provision, which the Company may deem necessary or desirable,
including without limitation extending the Final Expiration Date and,
provided that at the time of such amendment or supplement the Distribution
Date has not occurred, the period during which the Rights may be redeemed;
provided, however, that, from and after such time as any Person becomes an
Acquiring Person, any such amendment or supplement shall not materially
and adversely affect the interests of the holders of Right Certificates.
Without limiting the foregoing, the Board of Directors of the Company may
by resolution adopted at any time prior to such time as any Person becomes
an Acquiring Person amend this Agreement to lower the threshold set forth
in the definitions of Acquiring Person and Distribution Date herein from
15% to a percentage not less than the greater of (i) any percentage
greater than the largest percentage of the outstanding Voting Shares then
known to the Company to be beneficially owned by any Person (other than
the Company, any Subsidiary of the Company, any employee benefit plan of
the Company or of any Subsidiary of the Company, or any trustee of or
fiduciary with respect to any such plan when acting in such capacity), and
(ii) 10% if the Board of Directors shall determine that a Person whose
interests are adverse to the Company and is shareholders may seek to
acquire control of the Company.
Notwithstanding any other provision hereof, the Rights Agent's
consent must be obtained regarding any amendment or supplement pursuant to
this Section 29 which alters the Rights Agent's rights or duties.
Section 30. Successors. All the covenants and provisions of
this Agreement by or for the benefit of the Company or the Rights Agent
shall bind and inure to the benefit of their respective successors and
assigns hereunder.
Section 31. Benefits of this Agreement. Nothing in this
Agreement shall be construed to give to any Person other than the Company,
the Rights Agent and the registered holders of the Rights any legal or
equitable right, remedy or claim under this Agreement; but this Agreement
shall be for the sole and exclusive benefit of the Company, the Rights
Agent and the registered holders of the Rights.
Section 32. Severability. If any term, provision, covenant
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 33. 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 Wisconsin and for all purposes shall be governed
by and construed in accordance with the laws of such State applicable to
contracts to be made and performed entirely within such State.
Section 34. 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 35. 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.
SUPERIOR SERVICES, INC.
Attest:
By: By:
Xxxxx X. Xxxx G. Xxxxxxx Xxxxxxxx
Secretary President and Chief Executive Officer
LaSALLE NATIONAL BANK
As Rights Agent
Attest:
By By:
Authorized Officer Authorized Officer
EXHIBIT A
[Form of Right Certificate]
Certificate No. _____ Rights
NOT EXERCISABLE AFTER FEBRUARY 21, 2007 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. UNDER CERTAIN CIRCUMSTANCES, RIGHTS
BENEFICIALLY OWNED BY ACQUIRING PERSONS (AS DEFINED IN SECTION 1
OF THE RIGHTS AGREEMENT) OR ANY SUBSEQUENT HOLDER OF SUCH RIGHTS
MAY BECOME NULL AND VOID.
Right Certificate
SUPERIOR SERVICES, 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 February 21, 1997 (the
"Rights Agreement"), between SUPERIOR SERVICES, INC., a Wisconsin
corporation (the "Company"), and LaSALLE NATIONAL BANK (the "Rights
Agent"), to purchase from the Company at any time after the Distribution
Date (as such term is defined in the Rights Agreement) and prior to 5:00
p.m., Milwaukee, Wisconsin time, on February 21, 2007, at the Corporate
Trust Office of the Rights Agent (or at the office of its successor as
Rights Agent), one share of Common Stock, par value $0.01 (the "Common
Shares"), of the Company, at a purchase price of ninety dollars ($90.00)
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 March 10, 1997, 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 that happening of certain events.
This Right Certificate is subject to all of the terms,
provisions and conditions of the Rights Agreement, which terms, provisions
and conditions are hereby incorporated herein by reference and made a part
hereof and to which Rights Agreement reference is hereby made for a full
description of the rights, limitations of rights, obligations, duties and
immunities hereunder of the Rights Agent, the Company and the holders of
the Right Certificates. Copies of the Rights agreement are on file at the
principal executive offices of the Company and the Corporate Trust Office
of the Rights Agent.
This Right Certificate, with or without other Right
Certificates, upon surrender at the Corporate Trust 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.
Subject to the provisions of the Rights Agreement, the Rights
evidenced by this Certificate (i) may be redeemed by the Company at a
redemption price of $.01 per Right or (ii) may be exchanged by the Company
in whole or in part for Common Shares.
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 Company which may at any time be
issuable on the exercise hereof, nor shall anything contained in the
Rights Agreement or herein be construed to confer upon the holder hereof,
as such, any of the rights of a shareholder of the Company or any right to
vote for the election of directors or upon any matter submitted to
shareholders at any meeting thereof, 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 entitled to any benefit
under the Rights Agreement or be valid or obligatory for any purpose until
it shall have been authenticated by the Rights Agent.
WITNESS the facsimile signatures of the proper officers of the
Company and its corporate seal.
Dated as of
ATTEST: SUPERIOR SERVICES, INC.
By:
Secretary President
Date of Authentication:
This is one of the Right Certificates referred to in the within-
mentioned Rights Agreement.
LaSalle National Bank, as Rights Agent
By:
Authorized Signatory
[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 Right Certificate on the books of the within-
named Company, with full power of substitution.
Dated as of ________________________, ____.
___________________________________
Signature
Signature Guarantee:
Signatures must be guaranteed.
__________________________________________________________________________
[To be executed if statement is correct]
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
[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 SUPERIOR SERVICES, INC.:
The undersigned hereby irrevocably elects to exercise
_______________ Rights represented by this Right Certificate to purchase
the Common Shares (or other securities) issuable upon the exercise of such
Rights and requests that certificates for such Common Shares (or other
securities) 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 as of ____________, _______.
______________________________________
Signature
Signature Guaranteed:
Signatures must be guaranteed.
__________________________________________________________________________
[To be executed if statement is correct]
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
The signature in the foregoing Form of Assignment or Form of
Election to Purchase must conform to the name as written upon the face of
this Right Certificate in every particular, without alteration of
enlargement or any change whatsoever.
In the event the certification set forth above in the Form of
Assignment or the Form of Election to Purchase, as the case may be, is not
completed, the Company and the Rights Agent will deem the beneficial owner
of the Rights evidenced by this 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.
