EXHIBIT 4.1
UROCOR, INC.
AND
AMERICAN STOCK TRANSFER & TRUST COMPANY
RIGHTS AGENT
RIGHTS AGREEMENT
DATED AS OF AUGUST 17, 1998
TABLE OF CONTENTS
Section 1. CERTAIN DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . 1
Section 2. APPOINTMENT OF RIGHTS AGENT . . . . . . . . . . . . . . . . . . 4
SECTION 3. ISSUE OF RIGHT CERTIFICATES . . . . . . . . . . . . . . . . . . 4
SECTION 4. FORM OF RIGHT CERTIFICATES. . . . . . . . . . . . . . . . . . . 5
SECTION 5. COUNTERSIGNATURE AND REGISTRATION . . . . . . . . . . . . . . . 6
SECTION 6. TRANSFER, SPLIT UP, COMBINATION AND EXCHANGE OF RIGHT
CERTIFICATES; MUTILATED, DESTROYED, LOST OR STOLEN RIGHT
CERTIFICATES. . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 7. EXERCISE OF RIGHTS; PURCHASE PRICE; EXPIRATION DATE OF
RIGHTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 8. CANCELLATION AND DESTRUCTION OF RIGHT CERTIFICATES. . . . . . . 8
SECTION 9. AVAILABILITY OF PREFERRED SHARES; TRANSFER TAXES;
SECURITIES REGISTRATION . . . . . . . . . . . . . . . . . . . . 8
SECTION 10. PREFERRED SHARES RECORD DATE. . . . . . . . . . . . . . . . . . 9
SECTION 11. ADJUSTMENT OF PURCHASE PRICE, NUMBER OF SHARES OR NUMBER
OF RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 12. CERTIFICATE OF ADJUSTED PURCHASE PRICE OR NUMBER OF SHARES. . .16
SECTION 13. CONSOLIDATION, MERGER OR SALE OR TRANSFER OF ASSETS OR
EARNING POWER . . . . . . . . . . . . . . . . . . . . . . . . .16
Section 14. FRACTIONAL RIGHTS AND FRACTIONAL SHARES . . . . . . . . . . . .18
SECTION 15. RIGHTS OF ACTION. . . . . . . . . . . . . . . . . . . . . . . .19
SECTION 16. AGREEMENT OF RIGHT HOLDERS. . . . . . . . . . . . . . . . . . .19
SECTION 17. RIGHT CERTIFICATE HOLDER NOT DEEMED A STOCKHOLDER . . . . . . .19
SECTION 18. CONCERNING THE RIGHTS AGENT . . . . . . . . . . . . . . . . . .20
SECTION 19. MERGER OR CONSOLIDATION OR CHANGE OF NAME OF RIGHTS
AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
SECTION 20. DUTIES OF RIGHTS AGENT. . . . . . . . . . . . . . . . . . . . .21
SECTION 21. CHANGE OF RIGHTS AGENT. . . . . . . . . . . . . . . . . . . . .22
(i)
SECTION 22. ISSUANCE OF NEW RIGHT CERTIFICATES. . . . . . . . . . . . . . .23
SECTION 23. REDEMPTION. . . . . . . . . . . . . . . . . . . . . . . . . . .23
SECTION 24. EXCHANGE. . . . . . . . . . . . . . . . . . . . . . . . . . . .24
SECTION 25. NOTICE OF CERTAIN EVENTS. . . . . . . . . . . . . . . . . . . .25
SECTION 26. NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . .26
SECTION 27. SUPPLEMENTS AND AMENDMENTS. . . . . . . . . . . . . . . . . . .27
SECTION 28. SUCCESSORS. . . . . . . . . . . . . . . . . . . . . . . . . . .27
SECTION 29. BENEFITS OF THIS AGREEMENT. . . . . . . . . . . . . . . . . . .27
SECTION 30. SEVERABILITY. . . . . . . . . . . . . . . . . . . . . . . . . .27
SECTION 31. GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . .27
SECTION 32. COUNTERPARTS. . . . . . . . . . . . . . . . . . . . . . . . . .27
SECTION 33. DESCRIPTIVE HEADINGS. . . . . . . . . . . . . . . . . . . . . .27
SECTION 34. DETERMINATIONS AND ACTIONS BY THE BOARD OF DIRECTORS. . . . . .28
Exhibit A - Certificate of Designation, Powers, Preferences A-1
and Rights of Series I Preferred Stock
Exhibit B - Form of Right Certificate B-1
Exhibit C - Summary of Rights to Purchase Preferred Shares C-1
(i)
RIGHTS AGREEMENT
This Rights Agreement (this "Agreement") dated as of August 17, 1998,
between UroCor, Inc., a Delaware corporation (the "Company"), and American Stock
Transfer & Trust Company (the "Rights Agent").
The Board of Directors of the Company has authorized and declared a
dividend, and thereby directed the issuance, of one Preferred Share (as such
term is hereinafter defined) purchase right (a "Right") for and in respect of
each Common Share (as such term is hereinafter defined) outstanding on
August 27, 1998 (the "Record Date"), each Right representing the right to
purchase one one-thousandth interest in a Preferred Share, upon the terms and
subject to the conditions herein set forth, and has further authorized and
directed the issuance of one Right with respect to each Common Share that shall
become outstanding between the Record Date and the earliest of the Distribution
Date, the Redemption Date and the Final Expiration Date (as such terms are
hereinafter defined).
Accordingly, in consideration of the premises and the mutual agreements
herein set forth, the parties hereby agree as follows:
SECTION 1. CERTAIN DEFINITIONS. For purposes of this Agreement, the
following terms (in addition to those defined above or elsewhere herein) have
the meanings indicated:
(a) "Acquiring Person" shall mean any Person who or which,
together with all Affiliates and Associates of such Person, shall be the
Beneficial Owner of 15% or more of the Common Shares then outstanding, but
shall not include (i) the Company, (ii) any Subsidiary of the Company,
(iii) any employee benefit plan of the Company or of any Subsidiary of the
Company, or (iv) any Person holding Common Shares for or pursuant to the
terms of any such plan to the extent, and only to the extent, of the Common
Shares so held. Notwithstanding the foregoing, (i) no Person shall become an
"Acquiring Person" as the result of an acquisition of Common 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 Common Shares then outstanding; PROVIDED, HOWEVER, that if a
Person becomes the Beneficial Owner of 15% or more of the Common Shares then
outstanding by reason of share acquisitions by the Company and shall, after
such share acquisitions by the Company, become the Beneficial Owner of any
additional Common Shares, then such Person shall be deemed to be an
"Acquiring Person".
(b) "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.
(c) A Person shall be deemed the "Beneficial Owner" of and shall be
deemed to "beneficially own" any securities:
(i) which such Person or any of such Person's Affiliates or
Associates beneficially owns, directly or indirectly;
(ii) which such Person or any of such Person's Affiliates or
Associates has (A) the right to acquire (whether such right is exercisable
immediately or only after the passage of time) pursuant to any agreement,
arrangement or understanding (other than customary agreements with and
between underwriters and selling group members with respect to a bona fide
public offering of securities), or pursuant to the exercise of conversion
rights, exchange rights, rights (other than the Rights), warrants or
options, or otherwise; PROVIDED, HOWEVER, that a Person shall not be deemed
the Beneficial Owner of, or to beneficially own, securities tendered
pursuant to a tender or exchange offer made by or on behalf of such Person
or any of such Person's Affiliates or Associates until such tendered
securities are accepted for purchase or exchange; or (B) the right to vote
or consent to action pursuant to any agreement, arrangement or
understanding; PROVIDED, HOWEVER, that a Person shall not be deemed the
Beneficial Owner of, or to beneficially own, any security if the agreement,
arrangement or understanding to vote such security or consent to action (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
promulgated under the Exchange Act (or any comparable or successor report);
or
(iii) which are beneficially owned, directly or indirectly, by
any other Person with which such Person or any of such Person's Affiliates
or Associates has any agreement, arrangement or understanding (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 consenting to action (except to
the extent contemplated by the proviso to Section 1(c)(iii) hereof) or
disposing of any securities of the Company.
Notwithstanding the foregoing, any securities that are owned or held by the
Company, by any Subsidiary of the Company, or by any employee benefit plan of
the Company or of any Subsidiary of the Company, and any securities that are
owned or held by any Person pursuant to the terms of any such plan (to the
extent, and only to the extent, of the securities so held), shall not be deemed
to be beneficially owned by any other Person and no other Person shall be deemed
to be the Beneficial Owner of such securities. Further, notwithstanding
anything in this definition of Beneficial Ownership to the contrary, the phrase
"then outstanding", when used with reference to a Person's Beneficial Ownership
of securities of the Company, 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.
(d) "Business Day" shall mean any day other than a Saturday, a Sunday
or a day on which banking institutions in the State of Oklahoma or the State of
New York are authorized or obligated by law or executive order to close.
(e) "close of business" on any given date shall mean 5:00 p.m.,
Oklahoma City time, on such date; PROVIDED, HOWEVER, that if such date is not a
Business Day it shall mean 5:00 p.m., Oklahoma City time, on the next succeeding
Business Day.
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(f) "Common Shares" when used with reference to the Company
(specifically or in context) shall mean the shares of common stock, par value
$.01 per share, of the Company. "Common Shares" when used with reference to any
Person other than the Company shall 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, of the Person or Persons which ultimately
control such first-mentioned Person.
(g) "Distribution Date" shall have the meaning set forth in Section 3
hereof.
(h) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
(i) "Final Expiration Date" shall have the meaning set forth in
Section 7 hereof.
(j) "Person" shall mean any individual, trust, estate, firm,
corporation, incorporated or unincorporated association, limited liability
company, partnership or other entity, and shall include any successor (by merger
or otherwise) of any such Person.
(k) "Preferred Shares" shall mean shares of Series I Preferred Stock,
par value $.01 per share, of the Company having the rights and preferences set
forth in the form of the Certificate of Designation, Powers, Preferences and
Rights attached to this Agreement as EXHIBIT A.
(l) "Purchase Price" shall have the meaning set forth in Section 4
hereof, as the same may be adjusted from time to time in accordance with the
terms of this Agreement.
(m) "Rights Certificate" shall have the meaning set forth in
Section 3 hereof.
(n) "Redemption Date" shall have the meaning set forth in
Section 7(a) hereof.
(o) "Securities Act" shall mean the Securities Act of 1933, as
amended.
(p) "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) of the Exchange Act) by the
Company or an Acquiring Person that an Acquiring Person has become such.
(q) "Subsidiary" of any Person shall mean any corporation,
incorporated or unincorporated association, limited liability company,
partnership or other entity of which a majority of the voting power of the
voting equity securities or equity interest is owned, directly or indirectly, by
such Person.
SECTION 2. APPOINTMENT OF RIGHTS AGENT. The Company hereby appoints
the Rights Agent to act as agent for the Company and the holders of the
Rights (who, in accordance with Section 3 hereof, shall prior to the
Distribution Date also be the holders of the Common Shares) in accordance
with the terms and conditions hereof, and the Rights Agent hereby accepts
such
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appointment. The Company may from time to time appoint such co-Rights Agents
as it may deem necessary or desirable.
SECTION 3. ISSUE OF RIGHT CERTIFICATES.
(a) Until the earlier (the earlier of such dates being herein
referred to as the "Distribution Date") of (i) the close of business on the
tenth Business Day after the Shares Acquisition Date and (ii) the close of
business on the tenth Business Day after the date of the commencement by any
Person (other than the Company, any Subsidiary of the Company, any employee
benefit plan of the Company or of any Subsidiary of the Company, or any Person
holding Common Shares for or pursuant to the terms of any such plan to the
extent such Person is so acting with the approval or consent of the Company) of,
or of the first public announcement of the intention of any Person (other than
the Company, any Subsidiary of the Company, any employee benefit plan of the
Company or of any Subsidiary of the Company, or any Person holding Common Shares
for or pursuant to the terms of any such plan to the extent such Person is so
acting with the approval or consent of the Company) to commence, a tender or
exchange offer the consummation of which would result in any Person becoming the
Beneficial Owner of 15% or more of the Common Shares then outstanding, including
any such date which is after the date of this Agreement and prior to the
issuance of the Rights, (x) the Rights will be evidenced (subject to the
provisions of Section 3(b) hereof) by the certificates for Common Shares
registered in the names of the holders thereof (which certificates shall also be
deemed to be Right Certificates) and not by separate Right Certificates, and
(y) 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 Company will prepare and execute,
the Rights Agent will countersign, and the Company will send or cause to be sent
(and the Rights Agent will, if requested, send), by first-class, insured,
postage prepaid mail, to each record holder of Common Shares as of the close of
business on the Distribution Date, at the address of such holder shown on the
records of the Company, a Right Certificate, in substantially the form of
EXHIBIT B hereto (a "Right Certificate"), evidencing one Right for each Common
Share of the Company so held. As of the Distribution Date, the Rights will be
evidenced solely by such Right Certificates.
(b) As promptly as practicable following the Record Date, the Company
will send a copy of a Summary of Rights to Purchase Preferred Shares, in
substantially the form of EXHIBIT C hereto (the "Summary of Rights"), by
first-class, postage prepaid mail, to each record holder of Common Shares as of
the close of business on the Record Date, at the address of such holder shown on
the records of the Company. With respect to certificates for Common Shares
outstanding as of the Record Date, until the Distribution Date, the Rights
associated with the Common Shares represented by such certificates shall be
evidenced by such certificates and the Summary of Rights. Until the
Distribution Date (or the earlier of the Redemption Date or the Final Expiration
Date), the surrender for transfer of any certificate for Common Shares
outstanding on the Record Date, with or without a copy of the Summary of Rights
attached thereto, shall also constitute the transfer of the Rights associated
with the Common Shares represented thereby.
(c) Certificates for Common Shares which become outstanding
(including, without limitation, reacquired Common Shares referred to in the last
sentence of this paragraph (c)) after the
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Record Date but prior to the earliest of the Distribution Date, the
Redemption Date or the Final Expiration Date shall have impressed on, printed
on, written on or otherwise affixed to them the following legend:
This certificate also evidences and entitles the holder
hereof to certain rights as set forth in a Rights Agreement
between UroCor, Inc. and American Stock Transfer & Trust
Company, dated as of August 17, 1998 (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 UroCor, Inc. Under certain
circumstances, as set forth in the Rights Agreement, the
Rights described therein will be evidenced by separate
certificates and will no longer be evidenced by this
certificate. UroCor, Inc. will mail to the holder of this
certificate a copy of the Rights Agreement without charge
after receipt of a written request therefor. As described
in the Rights Agreement, Rights issued to any Person who
becomes an Acquiring Person (as those terms are defined in
the Rights Agreement) shall become null and void.
With respect to such certificates containing the foregoing legend, until the
Distribution Date, the Rights associated with the Common Shares represented by
such certificates shall be evidenced by such certificates alone, and the
surrender for transfer of any such certificate shall also constitute the
transfer of the Rights associated with the Common Shares represented thereby.
In the event that the Company purchases or acquires any Common Shares after the
Record Date but prior to the Distribution Date, any Rights associated with such
Common Shares shall be deemed canceled 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 Right Certificates (and the
forms of election to purchase Preferred Shares and of assignment to be
printed on the reverse thereof) shall be in substantially the form of EXHIBIT B
hereto and may have such marks of identification or designation and such
legends, summaries or endorsements printed thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of this
Agreement, or as may be required to comply with any applicable law or with
any rule or regulation made pursuant thereto or with any rule or regulation
of any stock exchange on which the Rights may from time to time be listed, or
to conform to usage. Subject to the provisions of Section 22 of this
Agreement, the Right Certificates shall entitle the holders thereof to
purchase such number of one one-thousandth interests in a Preferred Share as
shall be set forth therein at the price per one one-thousandth interest in a
Preferred Share set forth therein (the "Purchase Price"), but the amount and
type of securities purchasable upon the exercise of each Right and the
Purchase Price shall be subject to adjustment as provided herein.
SECTION 5. COUNTERSIGNATURE AND REGISTRATION. The Right Certificates
shall be executed on behalf of the Company by its Chairman of the Board of
Directors, its President or any Senior Vice President or Vice President,
either manually or by facsimile signature, shall have affixed thereto the
Company's seal or a facsimile thereof, and shall be attested by the Secretary
or an Assistant Secretary
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of the Company, either manually or by facsimile signature. The Right
Certificates shall be manually countersigned by the Rights Agent and shall
not be valid for any purpose unless countersigned. In case any officer of the
Company who shall have signed any of the Right Certificates shall cease to be
such officer of the Company before countersignature by the Rights Agent and
issuance and delivery by the Company, such Right Certificates, nevertheless,
may be countersigned by the Rights Agent and issued and delivered by the
Company with the same force and effect as though the person who signed such
Right Certificates had not ceased to be such officer of the Company; and any
Right Certificate may be signed on behalf of the Company by any person who,
at the actual date of the execution of such Right Certificate, shall be a
proper officer of the Company to sign such Right Certificate, although at the
date of the execution of this Agreement any such person was not such an
officer.
Following the Distribution Date, the Rights Agent will keep or cause to be
kept, at its principal office, books for registration and transfer of the Right
Certificates issued hereunder. Such books shall show the names and addresses of
the respective holders of the Right Certificates, the number of rights evidenced
on its face by each of the Right Certificates and the date of each of the Right
Certificates.
SECTION 6. TRANSFER, SPLIT UP, COMBINATION AND EXCHANGE OF RIGHT
CERTIFICATES; MUTILATED, DESTROYED, LOST OR STOLEN RIGHT CERTIFICATES.
Subject to the provisions of Section 14 hereof, at any time after the close
of business on the Distribution Date, and at or prior to the close of
business on the earlier of the Redemption Date and the Final Expiration Date,
any Right Certificate or Right Certificates (other than Right Certificates
representing Rights that have become void pursuant to Section 11(a)(ii)
hereof or that have been exchanged pursuant to Section 24 hereof) may be
transferred, split up, combined or exchanged for another Right Certificate or
Right Certificates, entitling the registered holder to purchase a like number
of one one-thousandth interests in a Preferred Share as the Right Certificate
or Right Certificates surrendered then entitle such holder to purchase. Any
registered holder desiring to transfer, split up, combine or exchange any
Right Certificate or Right Certificates shall make such request in writing
delivered to the Rights Agent and shall endorse and surrender the Right
Certificate or Right Certificates to be transferred, split up, combined or
exchanged at the principal office of the Rights Agent. Neither the Rights
Agent nor the Company shall be obligated to take any action whatsoever with
respect to the transfer of such surrendered Right Certificate unless and
until the registered holder shall have (i) completed, executed and delivered
a certificate contained in the form of assignment set forth on the reverse
side of such Right Certificate and (ii) provided such additional evidence of
the identity of the Beneficial Owner (or former Beneficial Owner) or
Affiliates or Associates thereof as the Company or the Rights Agent shall
have reasonably requested. Thereupon, the Rights Agent shall countersign and
deliver to the Person entitled thereto a Right Certificate or Right
Certificates, as the case may be, as so requested. The Company may require
payment of a sum sufficient to cover any tax or governmental charge that may
be imposed in connection with any transfer, split up, combination or exchange
of Right Certificates.
Upon receipt by the Company and the Rights Agent of evidence reasonably
satisfactory to them of the loss, theft, destruction or mutilation of a Right
Certificate, and, in case of loss, theft or destruction, of indemnity or
security reasonably satisfactory to them, and, at the Company's request,
reimbursement to the Company and the Rights Agent of all reasonable expenses
incidental thereto,
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and upon surrender to the Rights Agent and cancellation of the Right
Certificate if mutilated, the Company will make and deliver a new Right
Certificate of like tenor to the Rights Agent for delivery to the registered
holder in lieu of the Right Certificate so lost, stolen, destroyed or
mutilated.
SECTION 7. EXERCISE OF RIGHTS; PURCHASE PRICE; EXPIRATION DATE OF
RIGHTS.
(a) The registered holder of any Right Certificate may exercise the
Rights evidenced thereby (except as otherwise provided herein) in whole or in
part at any time, subject to the last sentence of Section 23(a) hereof, after
the Distribution Date upon surrender of the Right Certificate, with the form of
election to purchase on the reverse side thereof duly completed and executed, to
the Rights Agent at the principal office of the Rights Agent, together with
payment of the Purchase Price for each one one-thousandth interest in a
Preferred Share as to which the Rights are exercised, at or prior to the
earliest of (i) the close of business on August 27, 2008 (the "Final Expiration
Date"), (ii) the time at which the Rights are redeemed as provided in Section 23
hereof (the "Redemption Date"), and (iii) the time at which such Rights are
exchanged as provided in Section 24 hereof.
(b) The Purchase Price for each one one-thousandth interest in a
Preferred Share pursuant to the exercise of a Right shall initially be $35.00,
shall be subject to adjustment from time to time as provided in Section 11 and
Section 13 hereof, and shall be payable in lawful money of the United States of
America in accordance with Section 7(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 shares to be purchased (plus an amount
equal to any applicable transfer tax required to be paid by the holder of
such Right Certificate in accordance with Section 9 hereof) by certified
check, cashier's check or money order payable to the order of the Company,
the Rights Agent shall thereupon promptly (i) (A) requisition from any
transfer agent of the Preferred Shares certificates for the number of
Preferred Shares to be purchased, and the Company hereby irrevocably
authorizes and directs its transfer agent to comply with all such requests,
or (B) requisition from the depositary agent (if one exists as hereinafter
contemplated) depositary receipts representing such number of one
one-thousandth interests in a Preferred Share as are to be purchased (in
which case certificates for the Preferred Shares represented by such receipts
shall be deposited by the transfer agent of the Preferred Shares with the
depositary agent), and the Company hereby directs the depositary 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 14 hereof, and, if applicable, requisition
from the Company, or any transfer agent for securities thereof (any such
transfer agent being hereby authorized to comply with all such requests or
both), the number of Common Shares to be issued in lieu of the issuance of
Preferred Shares in accordance with Section 11(a)(ii) hereof or the amount of
cash, property or other securities to be paid or issued in lieu of the
issuance of Common Shares in accordance with Section 11(a)(iii) hereof,
(iii) after receipt of such certificates or depositary receipts, cause the
same to be delivered to or upon the order of the registered holder of such
Right Certificate, registered in such name or names as may be designated by
such holder and (iv) when appropriate in accordance with Section 11(a)(iii)
hereof, after receipt, deliver such cash, property or other securities to or
upon the order of the registered holder of such Right Certificate.
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(d) In case the registered holder of any Right Certificate shall
exercise less than all the Rights evidenced thereby, a new Right Certificate
evidencing Rights equivalent to the Rights remaining unexercised shall be issued
by the Rights Agent to the registered holder of such Right Certificate or to
such holder's duly authorized assigns, subject to the provisions of Section 14
hereof.
(e) Notwithstanding anything in this Agreement to the contrary,
neither the Rights Agent nor the Company shall be obligated to undertake any
action whatsoever with respect to a purported exercise of any Right as
contemplated by this Section 7 unless and until such registered holder shall
have (i) completed, executed and delivered a certificate contained in the form
of election to purchase set forth on the reverse side of the Right Certificate
surrendered in connection with such exercise and (ii) provided such additional
evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or
Affiliates or Associates thereof as the Company shall have reasonably requested.
SECTION 8. CANCELLATION AND DESTRUCTION OF RIGHT CERTIFICATES. All
Right Certificates surrendered for the purpose of exercise, transfer, split
up, combination or exchange shall, if surrendered to the Company or to any of
its agents, be delivered to the Rights Agent for cancellation or in canceled
form, or, if surrendered to the Rights Agent, shall be canceled by it, and no
Right Certificates shall be issued in lieu thereof except as expressly
permitted by any of the provisions of this Agreement. The Company shall
deliver to the Rights Agent for cancellation and retirement, and the Rights
Agent shall so cancel and retire, any Right Certificate representing Rights
purchased or acquired by the Company otherwise than upon the exercise
thereof. The Rights Agent shall deliver all canceled Right Certificates to
the Company, or shall, at the written request of the Company, destroy such
canceled Right Certificates, and in such case shall deliver a certificate of
destruction thereof to the Company.
SECTION 9. AVAILABILITY OF PREFERRED SHARES; TRANSFER TAXES;
SECURITIES REGISTRATION.
(a) The Company covenants and agrees that it will cause to be kept
available out of its authorized and unissued Preferred Shares, the number of
Preferred Shares that will be sufficient to permit the exercise in full of all
outstanding Rights. The Company further covenants and agrees that it will take
all such action as may be necessary to ensure that all Preferred Shares
delivered upon exercise of Rights shall, at the time of delivery of the
certificates for such Preferred Shares (subject to payment of the Purchase
Price), be duly authorized and validly issued and fully paid and nonassessable
shares.
(b) The Company covenants and agrees that it will pay when due and
payable any and all federal and state transfer taxes and charges that are
payable in respect of the issuance or delivery of the Right Certificates or
of any Preferred Shares (or other securities which may become or be issuable
under the terms of this Agreement) upon the exercise of Rights. The Company
shall not, however, be required to pay any transfer tax that may be payable
in respect of any transfer or delivery of Right Certificates to a Person
other than, or the issuance or delivery of certificates or depositary
receipts for the Preferred Shares (or other securities that may become or be
issuable under the terms of this Agreement) in a name other than that of, the
registered holder of the Right Certificates evidencing Rights surrendered for
transfer, delivery or exercise or to issue or to deliver any certificates or
depositary receipts for Preferred Shares (or other securities that may become
or
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be issuable under the terms of this Agreement) upon the exercise of any
Rights until any such tax shall have been paid (any such tax being payable by
the holder of such Right Certificates at the time of surrender) or until it
has been established to the Company's reasonable satisfaction that no such
tax is due.
(c) The Company shall (i) prepare and file, as soon as reasonably
possible following the Distribution Date, a registration statement under the
Securities Act with respect to the securities purchasable upon exercise of the
Rights on an appropriate form, (ii) cause such registration statement to become
effective as soon as reasonably possible after such filing, and (iii) cause such
registration statement to remain effective (with a prospectus at all times
meeting the requirements of the Securities Act) until no longer required to do
so under the Securities Act with respect to securities purchasable upon exercise
of the Rights. The Company also shall take all such action as may be required
or as is appropriate under the securities or blue sky laws of such jurisdictions
as may be necessary or appropriate with respect to the securities purchasable
upon the exercise of the Rights.
SECTION 10. PREFERRED SHARES RECORD DATE. Each Person in whose name
any certificate for Preferred Shares is issued upon the exercise of Rights
shall for all purposes be deemed to have become the holder of record of the
Preferred Shares represented thereby on, and such certificate shall be dated,
the date upon which the Right Certificate evidencing such Rights was duly
surrendered and payment of the Purchase Price (and any applicable transfer
taxes) was made; PROVIDED, HOWEVER, that if the date of such surrender and
payment is a date upon which the Preferred Shares transfer books of the
Company 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 the Preferred Shares transfer books of the
Company are open.
SECTION 11. ADJUSTMENT OF PURCHASE PRICE, NUMBER OF SHARES OR NUMBER OF
RIGHTS. The Purchase Price, the number of Preferred Shares or interests
therein that the holder of a Right Certificate is entitled to purchase on the
exercise of the Rights evidenced thereby, and the number of Rights
outstanding are subject to adjustment from time to time as provided in this
Section 11.
(a) (i) In the event the Company shall at any time after the date
of this Agreement (A) declare a dividend on the Preferred Shares payable in
Preferred Shares, (B) subdivide the outstanding Preferred Shares, (C) combine
the outstanding Preferred Shares into a smaller number of Preferred Shares or
(D) issue any shares of its capital stock in a reclassification of the
Preferred 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 11(a), the
Purchase Price in effect at the time of the record date for such dividend or
at the effective date of such subdivision, combination or reclassification,
and the number and kind of shares of capital stock or interests therein
issuable on such date, shall be proportionately adjusted so that the holder
of any Right exercised after such time shall be entitled to receive the
aggregate number and kind of shares of capital stock or interests therein
which, if such Right had been exercised immediately prior to such date and at
a time when the Preferred Shares transfer books of the Company were open,
such holder would have owned upon such exercise and been entitled to receive
by virtue of such dividend, subdivision, combination or reclassification;
PROVIDED, HOWEVER, that in no event shall the consideration to be paid upon
the exercise of one Right be less than the aggregate par value of the
-9-
shares of capital stock or interests therein of the Company issuable upon
exercisable of one Right. If an event occurs which would require an
adjustment under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the
adjustment provided for in this Section 11(a)(i) shall be in addition to, and
shall be made prior to, any adjustment required pursuant to Section 11(a)(ii)
hereof.
(ii) Subject to Section 23 and Section 24 of this Agreement,
in the event 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
one one-thousandth interests in a Preferred Share for which a Right is then
exercisable, in accordance with the terms of this Agreement and in lieu of
interests in Preferred Shares, such number of Common Shares as shall equal
the result obtained by (A) multiplying the then current Purchase Price by
the number of one one-thousandth interests in a Preferred Share for which a
Right is then exercisable and dividing that product by (B) 50% of the then
current per share market price of the Company's Common Shares (determined
pursuant to Section 11(d) hereof) on the date such Person became an
Acquiring Person. In the event that any Person shall become an Acquiring
Person and the Rights shall then be outstanding, the Company shall not take
any action that would eliminate or diminish the benefits intended to be
afforded by the Rights. Notwithstanding the foregoing or anything in this
Agreement to the contrary, from and after the time any Person becomes an
Acquiring Person, any Rights that are or were acquired or beneficially
owned by such Acquiring Person (or any Associate or Affiliate of such
Acquiring Person) shall be null and void without any further action by the
Company, the Rights Agent, the Acquiring Person or any other Person, and
any holder of such Rights shall thereafter have no rights whatsoever with
respect to such Rights, whether under this Agreement or otherwise
(including the right to exercise such Rights under any provision of this
Agreement). No Right Certificate shall be issued pursuant to Section 3
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 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 shall be canceled.
(iii) In lieu of issuing Common Shares in accordance with
Section 11(a)(ii) hereof, the Company may, if the Board of Directors
determines that such action is necessary or appropriate, elect to issue
or pay, upon the exercise of the Rights, cash, property, Common Shares,
shares of preferred stock, notes, debentures or other securities, or any
combination thereof, having an aggregate value equal to the value of the
Common Shares which otherwise would have been issuable pursuant to
Section11(a)(ii) hereof, which value shall be determined by a nationally
recognized investment banking firm selected by the Board of Directors;
PROVIDED, HOWEVER, that, except as provided in the second and third
sentences of subparagraph (ii) of this paragraph (a), all holders of
Rights must receive the same consideration upon the exercise of a Right.
For purposes of this subparagraph (iii), the value of Common Shares
shall be as determined pursuant to Section 11(d) hereof and the value of
-10-
any preferred stock or other securities that the Board of Directors
determines to be the substantial equivalent of Common Shares shall be
deemed to have the same value as the Common Shares of the Company.
(iv) Subject to subparagraph (iii) of this paragraph (a), in
the event that there shall not be sufficient Common Shares issued but not
outstanding or authorized but unissued to permit the exercise in full of
the Rights in accordance with subparagraph (ii) of this paragraph (a), the
Company shall take all such action as may be necessary to authorize
additional Common Shares for issuance upon exercise of the Rights or, if
unable to do so, shall take action permitted by subparagraph (iii) of this
paragraph (a) in respect of substitute consideration in order to satisfy
fully its obligations to a holder of Rights exercising such Rights as
contemplated hereby.
(b) In case the Company shall fix a record date for the issuance of
rights, options or warrants to all holders of Preferred Shares entitling them
(for a period expiring within 45 calendar days after such record date) to
subscribe for or purchase Preferred Shares (or shares having the same rights,
privileges and preferences as the Preferred Shares ("equivalent preferred
shares")) or securities convertible into Preferred Shares or equivalent
preferred shares at a price per Preferred Share or equivalent preferred share
(or having a conversion price per share, if a security convertible into
Preferred Shares or equivalent preferred shares) less than the then current per
share market price of the Preferred Shares (as defined in Section 11(d)) on such
record date, the Purchase Price to be in effect after such record date shall be
determined by multiplying the Purchase Price in effect immediately prior to such
record date by a fraction, the numerator of which shall be the number of
Preferred Shares outstanding on such record date plus the number of Preferred
Shares which the aggregate offering price of the total number of Preferred
Shares and/or equivalent preferred shares so to be offered (and/or the aggregate
initial conversion price of the convertible securities so to be offered) would
purchase at such current market price and the denominator of which shall be the
number of Preferred Shares outstanding on such record date plus the number of
additional Preferred Shares and/or equivalent preferred shares to be offered for
subscription or purchase (or into which the convertible securities so to be
offered are initially convertible); PROVIDED, HOWEVER, that in no event shall
the consideration to be paid upon the exercise of one Right be less than the
aggregate par value of the Preferred Shares issuable upon exercise of one Right.
In case such subscription price may be paid in a consideration part or all of
which shall be in a form other than cash, the value of such consideration shall
be as determined in good faith by the Board of Directors of the Company, whose
determination shall be described in a statement filed with the Rights Agent.
Preferred Shares owned by or held for the account of the Company shall not be
deemed outstanding for the purpose of any such computation. Such adjustments
shall be made successively whenever such a record date is fixed; and in the
event that such rights, options or warrants are not so issued, the Purchase
Price shall be adjusted to be the Purchase Price which would then be in effect
if such record date had not been fixed.
(c) In case the Company shall fix a record date for the making of a
distribution to all holders of the Preferred 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 paid out of earnings
-11-
or retained earnings or a dividend payable in Preferred Shares) or subscription
rights or warrants (excluding those referred to in Section 11(b) hereof), the
Purchase Price to be in effect after such record date shall be determined by
multiplying the Purchase Price in effect immediately prior to such record date
by a fraction, the numerator of which shall be the then current per share market
price of the Preferred Shares 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 Preferred Share and
the denominator of which shall be such current per share market price of the
Preferred Shares; PROVIDED, HOWEVER, that in no event shall the consideration to
be paid upon the exercise of one Right be less than the aggregate par value of
the Preferred Shares issuable upon exercise of one Right. Such adjustments
shall be made successively whenever such a record date is fixed; and in the
event that such distribution is not so made, the Purchase Price shall again be
adjusted to be the Purchase Price which would then be in effect if such record
date had not been fixed.
(d) (i) For the purpose of any computation hereunder, the
"current per share market price" of any security (a "Security") for the purpose
of this Section 11(d)(i)) on any date shall be deemed to be the average of the
daily closing prices per share of such Security for the 30 consecutive Trading
Days (as such term is hereinafter defined) immediately prior to such date;
PROVIDED, HOWEVER, that in the event that the current per share market price of
the Security is determined during a period following the announcement by the
issuer of such Security of (A) a dividend or distribution on such Security
payable in shares of such Security or securities convertible into such shares,
or (B) any subdivision, combination or reclassification of such Security and
prior to the expiration of 30 Trading Days after the ex-dividend date for such
dividend or distribution, or the record date for such subdivision, combination
or reclassification, then, and in each such case, the current per share market
price shall be appropriately adjusted to reflect the current market price per
share equivalent of such Security taking into account ex-dividend trading. The
closing price for each day shall be the last sale price, regular way, or, in
case no such sale takes place on such day, the average of the closing bid and
asked prices, regular way, in either case as reported in the principal
consolidated transaction reporting system with respect to securities listed or
admitted to trading on the New York Stock Exchange or, if the Security is not
listed or admitted to trading on the New York Stock Exchange, as reported in the
principal consolidated transaction reporting system with respect to securities
listed on the principal national securities exchange on which the Security is
listed or admitted to trading or, if the Security is not listed or admitted to
trading on any national securities exchange, the last quoted 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 ("NASDAQ") or such other system then
in use or, if on any such date the Security is not quoted by any such
organization, the average of the closing bid and asked prices as furnished by a
professional market maker making a market in the Securities selected by the
Board of Directors of the Company. The term "Trading Day" shall mean a day on
which the principal national securities exchange on which the Security is listed
or admitted to trading is open for the transaction of business or, if the
Security is not listed or admitted to trading on any national securities
exchange, a Business Day.
-12-
(ii) For the purpose of any computation hereunder, the
"current per share market price" of the Preferred Shares shall be
determined in accordance with the methods set forth in Section 11(d)(i).
If the Preferred Shares are not publicly traded, the "current per share
market price" of the Preferred Shares shall be conclusively deemed to be
the current per share market price of the Common Shares as determined
pursuant to Section 11(d)(i) (appropriately adjusted to reflect any stock
split, stock dividend or similar transaction occurring after the date
hereof), multiplied by one thousand. If neither the Common Shares nor the
Preferred Shares are publicly held or so listed or traded, and no market
maker is making, or has made during the relevant period, a market in the
Common Shares or the Preferred Shares, "current per share market price"
shall mean the fair value per share 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.
(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 Section11(e) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment. All calculations under this
Section 11 shall be made to the nearest cent or to the nearest one
ten-millionth interest in a Preferred Share or one ten-thousandth interest in
any other share or security, as the case may be. Notwithstanding the first
sentence of this Section 11(e), any adjustment required by this Section 11
shall be made no later than the earlier of (i) three years from the date of
the transaction that requires such adjustment and (ii) the date of the
expiration of the right to exercise any Rights.
(f) If as a result of an adjustment made pursuant to Section 11(a) or
Section 13(a) hereof, the holder of any Right thereafter exercised shall become
entitled to receive any shares of capital stock of the Company other than
Preferred Shares or interests therein, 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 of this Section 11 with respect to the Preferred Shares, and
the provisions of Section 7, Section 9, Section 10, Section 12, Section 13 and
Section 14 with respect to the Preferred 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 evidence the right to
purchase, at the adjusted Purchase Price, the number of one one-thousandth
interests in a Preferred Share 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 11(a), upon each adjustment of the Purchase Price as a
result of the calculations made in Section 11(b) and Section 11(c), each
Right outstanding immediately prior to the making of such adjustment shall
thereafter evidence the right to purchase, at the adjusted Purchase Price,
that number of one one-thousandth interests in a Preferred Share (calculated
to the nearest one ten-millionth of a Preferred Share) obtained by
(i) multiplying (A) the number of one one-thousandth interests in a Preferred
Shares covered by a Right immediately prior to such adjustment by (B) the
Purchase Price
-13-
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, in substitution for any
adjustment in the number of one one-thousandth interests in a Preferred Share
purchasable upon the exercise of a Right. Each of the Rights outstanding
after such adjustment of the number of Rights shall be exercisable for the
number of one one-thousandth interests in a Preferred Share for which a Right
was exercisable immediately prior to such adjustment. Each Right held of
record prior to such adjustment of the number of Rights shall become that
number of Rights (calculated to the nearest one ten-thousandth) obtained by
dividing the Purchase Price in effect immediately prior to adjustment of the
Purchase Price by the Purchase Price in effect immediately after adjustment
of the Purchase Price. The Company shall make a public announcement of its
election, if any, 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. Such record date may be the date on which the Purchase Price is
adjusted or any date thereafter, but, if the Right Certificates have been
issued, shall be at least ten days later than the date of the public
announcement. If Right Certificates have been issued, upon each adjustment
of the number of Rights pursuant to this Section11(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 14 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 countersigned in the manner provided for
herein and shall be registered in the names of the holders of record of Right
Certificates on the record date specified in the public announcement.
(j) Irrespective of any adjustment or change in the Purchase Price
or the number of one one-thousandth interests in a Preferred Share 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 one one-thousandth interests in a Preferred Shares which were expressed in
the initial Right Certificates issued hereunder.
(k) Before taking any action that would cause an adjustment reducing
the Purchase Price below one one-thousandth of the par value, if any, of the
Preferred Shares issuable upon exercise of the Rights, the Company shall take
any corporate action which may, in the opinion of its counsel, be necessary in
order that the Company may validly and legally issue fully paid and
nonassessable Preferred Shares at such adjusted Purchase Price.
(l) In any case in which this Section 11 shall require that an
adjustment in the Purchase Price be made effective as of a record date for a
specified event, the 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 Preferred Shares and other capital stock or securities of the
Company, if any, issuable upon such exercise over and above the Preferred
Shares and other capital stock or securities
-14-
of the Company, if any, issuable upon such exercise on the basis of the
Purchase Price in effect prior to such adjustment; PROVIDED, HOWEVER, that
the Company shall deliver to such holder a due xxxx or other appropriate
instrument evidencing such holder's right to receive such additional shares
upon the occurrence of the event requiring such adjustment.
(m) Anything in this Section 11 to the contrary notwithstanding, the
Company shall be entitled to make such reductions in the Purchase Price, in
addition to those adjustments expressly required by this Section 11, as and to
the extent that the Company in its sole discretion shall determine to be
advisable in order that any consolidation or subdivision of the Preferred
Shares, issuance wholly for cash of any Preferred Shares at less than the
current market price, issuance wholly for cash of Preferred Shares or securities
which by their terms are convertible into or exchangeable for Preferred Shares,
dividends on Preferred Shares payable in Preferred Shares or issuance of rights,
options or warrants referred to in Section 11(b) hereafter made by the Company
to holders of Preferred Shares shall not be taxable to such stockholders.
(n) In the event that at any time after the date of this Agreement
and prior to the Distribution Date, the Company shall (i) declare or pay any
dividend on the Common Shares payable in Common Shares, (ii) reclassify the
Common Shares or (iii) otherwise effect a split-up, division or combination
of the Common Shares, then in any such case (i) the number of one
one-thousandth interests in a Preferred Share purchasable after such event
upon proper exercise of each Right shall be determined by multiplying the
number of one one-thousandth interests in a Preferred Share so purchasable
immediately prior to such event by a fraction, the numerator of which shall
be the number of Common Shares that were outstanding immediately before such
event and the denominator of which shall be the number of Common Shares that
are outstanding immediately after such event, and (ii) each Common Share
outstanding immediately after such event shall have issued with respect to it
that number of Rights which each Common Share outstanding immediately prior
to such event had issued with respect to it. The adjustments provided for in
this Section 11(n) shall be made successively whenever any such event occurs.
SECTION 12. CERTIFICATE OF ADJUSTED PURCHASE PRICE OR NUMBER OF SHARES.
Whenever an adjustment is made as provided in Section 11 or Section 13
hereof, the Company shall promptly (a) prepare a certificate setting forth
such adjustment and a brief statement of the facts accounting for such
adjustment, (b) file with the Rights Agent and with each transfer agent for
the Common Shares or the Preferred Shares a copy of such certificate and
(c) mail a brief summary thereof to each holder of a Right Certificate in
accordance with Section 25 hereof.
SECTION 13. CONSOLIDATION, MERGER OR SALE OR TRANSFER OF ASSETS OR
EARNING POWER.
(a) In the event, directly or indirectly, (i) the Company shall
consolidate with, or merge with and into, or effect a share exchange or
conversion with or into, any Person, (ii) any Person shall merge with and into
the Company or effect a share exchange or conversion with or into, the Company,
the Company shall be the continuing or surviving corporation in such transaction
and, in connection with such transaction, all or part of the Common Shares 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 (iii) the Company shall sell
or otherwise transfer (or one or more of its Subsidiaries shall
-15-
sell or otherwise transfer), in one or more transactions, assets or earning
power aggregating 50% or more of the assets or earning power of the Company
and its Subsidiaries (taken as a whole) to any Person or Persons other than
the Company or one or more of its wholly-owned Subsidiaries, then, and in
each such case, proper provision shall be made so that (i) each holder of a
Right (except as otherwise provided herein) shall thereafter have the right
to receive, upon the exercise thereof at a price equal to the then current
Purchase Price multiplied by the number of one one-thousandth interests in a
Preferred Share for which a Right is then exercisable, in accordance with the
terms of this Agreement and in lieu of Preferred Shares, such number of duly
authorized and validly issued, fully paid and non-assessable Common Shares of
the Principal Party (as defined in Section 13(b) hereof) as shall equal the
result obtained by (A) multiplying the then current Purchase Price by the
number of one one-thousandth interests in a Preferred Share for which a Right
is then exercisable and dividing that product by (B) 50% of the then current
per share market price of the Common Shares of the Principal Party
(determined pursuant to Section 11(d) hereof) on the date of consummation of
such transaction; (ii) the Principal Party shall thereafter be liable for,
and shall assume, by virtue of such transaction, all the obligations and
duties of the Company pursuant to this Agreement; (iii) the term "Company",
as used in this Agreement, shall thereafter be deemed to mean the Principal
Party; and (iv) such Principal Party shall take such steps (including, but
not limited to, the authorization by all necessary corporate action and the
reservation of a sufficient number of its Common Shares in accordance with
Section 9 of this Agreement) 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
of the Principal Party thereafter deliverable upon the exercise of the
Rights. The Company shall not consummate any such transaction unless prior
thereto the Company and the Principal Party shall have executed and delivered
to the Rights Agent a supplemental agreement so providing and further
providing that, immediately after the date of any such transaction mentioned
in this paragraph (a) of this Section 13, the Principal Party at its own
expense will (i) prepare and file a registration statement under the
Securities Act with respect to the Rights and the securities purchasable upon
exercise of the Rights on an appropriate form, will cause such registration
statement to become effective as soon as possible after such filing and will
cause such registration statement to remain effective (with a prospectus at
all times meeting the requirements of the Securities Act) until no longer
required under the Act with respect to securities purchasable upon exercise
of the Rights; and (ii) qualify or register the Rights and the securities
purchasable upon exercise of the Rights, and take all such other action as
may be required or as is appropriate, under the securities or blue sky laws
of such jurisdictions as may be necessary or appropriate. The Company shall
not enter into any transaction of the kind referred to in this Section 13 if
at the time of such transaction there are any rights, warrants, instruments
or securities outstanding or any agreements or arrangements which, as a
result of the consummation of such transaction, would eliminate or
substantially diminish the benefits intended to be afforded by the Rights.
The provisions of this Section 13 shall similarly apply to successive
mergers, consolidations, exchanges, conversions, sales or other transfers.
(b) "Principal Party" shall mean
(i) in the case of any transaction described in clause (i) or
(ii) of the first sentence of Section 13(a), the Person that is the issuer
of any securities into which Common
-16-
Shares are converted in such merger or consolidation, and if no securities
are so issued, the Person that is the other party to the merger or
consolidation; and
(ii) in the case of any transaction described in clause (iii)
of the first sentence in Section 13(a), the Person that is the party
receiving the greatest portion of the assets or earning power transferred
pursuant to such transaction or transactions;
PROVIDED, HOWEVER, that in any such case, (1) if the securities of such Person
are not at such time or have not been continuously over the preceding 12-month
period registered under Section 12 of the Exchange Act, and such Person is a
direct or indirect Subsidiary of another Person the securities of which are and
have been so registered, "Principal Party" shall mean such other Person; (2) in
case such Person is a Subsidiary, directly or indirectly, of more than one
other Person, the securities of two or more of which are and have been so
registered, "Principal Party" shall mean whichever of such other Persons is the
issuer of the securities so registered having the greatest aggregate market
value; and (3) in case such Person is owned, directly or indirectly, by a joint
venture formed by two or more other Persons that are not owned, directly or
indirectly, by the same Person, the rules set forth in (1) and (2) above shall
apply to each of the chains of ownership having an interest in such joint
venture as if such Person were a "Subsidiary" of both or all of such other
Persons and the Principal Parties in each such chain shall bear the obligations
set forth in this Section 13 in the same ratio as their direct and indirect
interests in such Person bear to the total of such interests.
SECTION 14. FRACTIONAL RIGHTS AND FRACTIONAL SHARES.
(a) The Company shall not be required to issue fractions of Rights or
to distribute Right Certificates which evidence fractional Rights. In lieu of
such fractional Rights, there shall be paid to the registered holders of the
Right Certificates with regard to which such fractional Rights would otherwise
be issuable, an amount in cash equal to the same fraction of the current market
value of a whole Right. For purposes of this Section 14(a), the current market
value of a whole Right shall be the closing price of the Rights for the Trading
Day immediately prior to the date on which such fractional Rights would
otherwise be issuable. The closing price for any day shall be the last sale
price, regular way, or, in case no such sale takes place on such day, the
average of the closing bid and asked prices, regular way, in either case as
reported in the principal consolidated transaction reporting system with respect
to securities listed or admitted to trading on the New York Stock Exchange or,
if the Rights are not listed or admitted to trading on the New York Stock
Exchange, as reported in the principal consolidated transaction reporting system
with respect to securities listed on the principal national securities exchange
on which the Rights are listed or admitted to trading or, if the Rights are not
listed or admitted to trading on any national securities exchange, the last
quoted price or, if not so quoted, the average of the high bid and low asked
prices in the over-the-counter market, as reported by NASDAQ or such other
system then in use or, if on any such date the Rights are not quoted by any such
organization, the average of the closing bid and asked prices as furnished by a
professional market maker making a market in the Rights selected by the Board of
Directors of the Company. If on any such date no such market maker is making a
market in the Rights, the fair value of the Rights on such date as determined in
good faith by the Board of Directors of the Company shall be used to determine
the current market value of a Right for purposes of this Section 14(a).
-17-
Notwithstanding anything in this Section 14(a) to the contrary, prior to the
Distribution Date, the current market value of the Right for purposes of this
Section 14(a) shall be deemed to be zero.
(b) The Company shall not be required to issue fractional interests
in Preferred Shares (other than fractional interests which are integral
multiples of one one-thousandth of a Preferred Share) upon exercise of the
Rights or to distribute certificates which evidence fractional interests in
Preferred Shares (other than fractional interests which are integral multiples
of one one-thousandth of a Preferred Share). Fractional interests in Preferred
Shares in integral multiples of one one-thousandth of a Preferred Share may, at
the election of the Company, be evidenced by depositary receipts, pursuant to an
appropriate agreement between the Company and a depositary selected by it;
PROVIDED, HOWEVER, that such agreement shall provide that holders of such
depositary receipts shall have all the rights, privileges and preferences to
which they are entitled as beneficial owners of the Preferred Shares represented
by such depositary receipts. In lieu of fractional interests in Preferred
Shares that are not integral multiples of one one-thousandth of a Preferred
Share, the Company shall pay to the registered holders of Right Certificates at
the time such Rights are exercised as herein provided an amount in cash equal to
the same fraction of the current market value of one Preferred Share. For
purposes of this Section 14(b), the current market value of a Preferred Share
shall be the closing price of a Preferred Share (as determined pursuant to the
second sentence of Section 11(d)(i) hereof) for the Trading Day immediately
prior to the date of such exercise.
(c) The holder of a Right by the acceptance of the Right expressly
waives his right to receive any fractional Rights or any fractional shares upon
exercise of a Right (except as provided above).
SECTION 15. RIGHTS OF ACTION. All rights of action in respect of this
Agreement, excepting the rights of action given to the Rights Agent under
Section 18 and Section 20 hereof, are vested in the respective registered
holders of the Right Certificates (and, prior to the Distribution Date, the
registered holders of the Common Shares of the Company); and any registered
holder of any Right Certificate (or, prior to the Distribution Date, of the
Common Shares of the Company), without the consent of the Rights Agent or of
the holder of any other Right Certificate (or, prior to the Distribution
Date, of the Common Shares of the Company), may, in his own behalf and for
his own benefit, enforce, and may institute and maintain any suit, action or
proceeding against the Company to enforce, or otherwise act in respect of,
such holder's right to exercise the Rights evidenced by such Right
Certificate in the manner provided in such Right Certificate and in this
Agreement. Without limiting the foregoing or any remedies available to the
holders of Rights, it is specifically acknowledged that the holders of Rights
would not have an adequate remedy at law for any breach of this Agreement and
will be entitled to specific performance of the obligations under, and
injunctive relief against actual or threatened violations of the obligations
of any Person subject to, this Agreement.
SECTION 16. AGREEMENT OF RIGHT HOLDERS. Every holder of a Right, by
accepting the same, consents and agrees with the Company and the Rights Agent
and with every other holder of a Right that:
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(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 principal office of the Rights Agent, duly endorsed or accompanied by a
proper instrument of transfer; and
(c) the Company and the Rights Agent may deem and treat the Person in
whose name any 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 whatsoever, and neither the Company nor the Rights Agent shall be
affected by any notice to the contrary.
SECTION 17. RIGHT CERTIFICATE HOLDER NOT DEEMED A STOCKHOLDER. Prior
to the exercise of the Rights evidenced thereby, no holder, as such, of any
Right Certificate shall be entitled to vote or receive dividends or be deemed
for any purpose the holder of the Preferred Shares or interests therein or
any other securities of the Company which may at any time be issuable on the
exercise of the Rights evidenced thereby, nor shall anything contained herein
or in any Right Certificate be construed to confer upon the holder of any
Right Certificate, as such, any of the rights of a stockholder of the Company
or any right to vote for the election of directors or upon any matter
submitted to stockholders at any meeting thereof, or to give or withhold
consent to any corporate action, or to receive notice of meetings,
proceedings or other actions affecting stockholders (except as provided in
Section 25 hereof), or to receive dividends or subscription rights, or to
exercise any pre-emptive rights, or otherwise, until the Right or Rights
evidenced by such Right Certificate shall have been exercised in accordance
with the provisions hereof.
SECTION 18. CONCERNING THE RIGHTS AGENT. The Company agrees to pay to
the Rights Agent reasonable compensation for all services rendered by it
hereunder and, from time to time, on demand of the Rights Agent, its
reasonable expenses and counsel fees and other disbursements incurred in the
administration and execution of this Agreement and the exercise and
performance of its duties hereunder. The Company also agrees to indemnify
the Rights Agent for, and to hold it harmless against, any loss, liability,
or expense, incurred without 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 the Common Shares or for other securities of the Company,
instrument of assignment or transfer, power of attorney, endorsement, affidavit,
letter, notice, direction, consent, certificate, statement, or other paper or
document believed by it to be genuine and to be signed, executed and, where
necessary, verified or acknowledged, by the proper Person or Persons, or
otherwise upon the advice of counsel as set forth in Section 20 hereof.
-19-
SECTION 19. MERGER OR CONSOLIDATION OR CHANGE OF NAME OF RIGHTS AGENT.
Any corporation into which the Rights Agent or any successor Rights Agent may
be merged or with which it may be consolidated, or any corporation resulting
from any merger or consolidation to which the Rights Agent or any successor
Rights Agent shall be a party, or any corporation succeeding to the stock
transfer or corporate trust business of the Rights Agent or any successor
Rights Agent, shall be the successor to the Rights Agent under this Agreement
without the execution or filing of any paper or any further act on the part
of any of the parties hereto, provided that such corporation would be
eligible for appointment as a successor Rights Agent under the provisions of
Section 21 hereof. In case, at the time such successor Rights Agent shall
succeed to the agency created by this Agreement, any of the Right
Certificates shall have been countersigned but not delivered, any such
successor Rights Agent may adopt the countersignature of the predecessor
Rights Agent and deliver such Right Certificates so countersigned; and in
case at that time any of the Right Certificates shall not have been
countersigned, any successor Rights Agent may countersign such Right
Certificates either in the name of the predecessor Rights Agent or in the
name of the successor Rights Agent; and in all such cases such Right
Certificates shall have the full force provided in the Right Certificates and
in this Agreement.
In case at any time the name of the Rights Agent shall be changed and at
such time any of the Right Certificates shall have been countersigned but not
delivered, the Rights Agent may adopt the countersignature under its prior name
and deliver Right Certificates so countersigned, and in case at that time any of
the Right Certificates shall not have been countersigned, the Rights Agent may
countersign such Right Certificates either in its prior name or in its changed
name; and in all such cases such Right Certificates shall have the full force
provided in the Right Certificates and in this Agreement.
SECTION 20. DUTIES OF RIGHTS AGENT. The Rights Agent undertakes the
duties and obligations imposed by this Agreement upon the following terms and
conditions, by all of which the Company and the holders of Right
Certificates, by their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel (who may be legal
counsel for the 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 of the Board of
Directors, President, any Senior Vice President or Vice President, the Secretary
or the Treasurer 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.
-20-
(c) The Rights Agent shall be liable hereunder to the Company and any
other Person only for the Rights Agent's own negligence, bad faith or willful
misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of
the statements of fact or recitals contained in this Agreement or in the Right
Certificates (except its countersignature thereof) or be required to verify the
same, but all such statements and recitals are and shall be deemed to have been
made by the Company only.
(e) The Rights Agent shall not be under any responsibility in respect
of the validity of this Agreement or the execution and delivery hereof (except
the due execution hereof by the Rights Agent) or in respect of the validity or
execution of any Right Certificate (except its countersignature thereof); nor
shall it be responsible for any breach by the 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 any
Rights that become void pursuant to Section 11(a)(ii) hereof) or any adjustment
in the terms of the Rights (including the manner, method or amount thereof)
provided for in Section 3, Section 11, Section 13, Section 23 or Section 24
hereof, or the ascertaining of the existence of facts that would require any
such change or adjustment (except with respect to the exercise of Rights
evidenced by Right Certificates after actual notice that such change or
adjustment is required); nor shall it by any act hereunder be deemed to make any
representation or warranty as to the authorization or reservation of any
Preferred Shares to be issued pursuant to this Agreement or any Right
Certificate or as to whether any Preferred Shares will, when issued, be validly
authorized and issued, fully paid and nonassessable.
(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 of the Board of Directors, President, any Senior Vice
President or Vice President, the Secretary or the Treasurer of the Company, and
to apply to such officers for advice or instructions in connection with its
duties, and it shall not be liable for any action taken or suffered by it in
good faith in accordance with instructions of any such officer or for any delay
in acting while waiting for those instructions.
(h) The Rights Agent and any stockholder, director, officer or
employee of the Rights Agent may buy, sell or deal in any of the Rights or other
securities of the Company or become pecuniarily interested in any transaction in
which the Company may be interested, or contract with or lend money to the
Company or otherwise act as fully and freely as though it were not Rights Agent
under this Agreement. Nothing herein shall preclude the Rights Agent from
acting in any other capacity for the Company (including, without limitation,
acting as transfer agent for the Common Shares of the Company) or for any other
legal entity.
(i) The Rights Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either itself or by or
through its attorneys or agents, and
-21-
the Rights Agent shall not be answerable or accountable for any act, default,
neglect or misconduct of any such attorneys or agents or for any loss to the
Company resulting from any such act, default, neglect or misconduct, provided
reasonable care was exercised in the selection and continued employment
thereof.
SECTION 21. CHANGE OF RIGHTS AGENT. The Rights Agent or any successor
Rights Agent may resign and be discharged from its duties under this
Agreement upon 30 days' notice in writing mailed to the Company and to each
transfer agent of the Common Shares or Preferred Shares by registered or
certified mail, and to the holders of the Right Certificates by first-class
mail. The Company may remove the Rights Agent or any successor Rights Agent
upon 30 days' notice in writing, mailed to the Rights Agent or successor
Rights Agent, as the case may be, and to each transfer agent of the Common
Shares or Preferred Shares by registered or certified mail, and to the
holders of the Right Certificates by first-class mail. If the Rights Agent
shall resign or be removed or shall otherwise become incapable of acting, the
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 holder
of a Right Certificate (who shall, with such notice, submit his Right
Certificate for inspection by the Company), then the registered holder of any
Right Certificate may apply to any court of competent jurisdiction for the
appointment of a new Rights Agent. Any successor Rights Agent, whether
appointed by the Company or by such a court, shall be a corporation
organized and doing business under the laws of the United States or of the
States of New York or Oklahoma (or of any other state of the United States so
long as such corporation is authorized to do business as a banking
institution in the State of New York or the State of Oklahoma), in good
standing, which is authorized under such laws to exercise corporate trust or
stock transfer powers and is subject to supervision or examination by federal
or state authority and which has at the time of its appointment as Rights
Agent a combined capital and surplus of at least $50 million. 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 the predecessor Rights Agent hereunder, and execute and deliver
any further assurance, conveyance, act or deed necessary for the purpose.
Not later than the effective date of any such appointment the Company shall
file notice thereof in writing with the predecessor Rights Agent and each
transfer agent of the Common Shares or Preferred Shares, and mail a notice
thereof in writing to the registered holders of the Right Certificates.
Failure to give any notice provided for in this Section 21, however, or any
defect therein, shall not affect the legality or validity of the resignation
or removal of the Rights Agent or the appointment of the successor Rights
Agent, as the case may be.
SECTION 22. ISSUANCE OF NEW RIGHT CERTIFICATES. Notwithstanding any of
the provisions of this Agreement or of the Rights to the contrary, the
Company may, at its option, issue new Right Certificates evidencing Rights in
such form as may be approved by its Board of Directors to reflect any
adjustment or change in the Purchase Price and the number or kind or class of
shares or other securities or property purchasable under the Right
Certificates made in accordance with the provisions of this Agreement.
-22-
SECTION 23. REDEMPTION.
(a) The Rights may be redeemed by action of the Board of Directors of
the Company pursuant to Section 23(b) and shall not be redeemed in any other
manner. Notwithstanding anything contained or implied in this Agreement to the
contrary, the Rights shall not be exercisable after the occurrence of an event
described in Section 11(a)(ii) hereof until such time as the Company's rights of
redemption hereunder have expired.
(b) The Board of Directors of the Company may, at its option, at any
time prior to the close of business on the tenth Business Day after the Shares
Acquisition Date, redeem all, but not less than all, the then outstanding Rights
at a redemption price of $.001 per Right, appropriately adjusted to reflect any
stock split, stock dividend or similar transaction occurring after the date
hereof (such redemption price being hereinafter referred to as the "Redemption
Price")
(c) Immediately upon the action of the Board of Directors of the
Company ordering the redemption of the Rights pursuant to Section 23(b), and
without any further action and without any notice, the right to exercise the
Rights will terminate and the only right thereafter of the holders of Rights
shall be to receive the Redemption Price. The Company shall promptly give
public notice of any such redemption; PROVIDED, HOWEVER, that the failure to
give, or any defect in, any such notice shall not affect the validity of such
redemption. Within ten days after such action of the Board of Directors
ordering the redemption of the Rights pursuant to Section 23(b), the Company
shall mail a notice of redemption to all the holders of the then outstanding
Rights at their addresses as they appear upon the registry books of the Rights
Agent or, prior to the Distribution Date, on the registry books of the transfer
agent for the Common Shares of the Company. Any notice that is mailed in the
manner herein provided shall be deemed given, whether or not the holder receives
the notice. Each such notice of redemption will state the method by which the
payment of the Redemption Price will be made. Neither the Company nor any of
its Affiliates or Associates may redeem, acquire or purchase for value any
Rights at any time in any manner other than that specifically set forth in this
Section 23 or in Section 24 hereof, and other than in connection with the
purchase of Common Shares prior to the Distribution Date.
SECTION 24. EXCHANGE.
(a) The Board of Directors of the Company may, at its option, at any
time after any Person becomes an Acquiring Person, exchange all or any part of
the then outstanding and exercisable Rights (which shall not include Rights that
have become void pursuant to the provisions of Section 11(a)(ii) hereof) for
Common Shares at an exchange ratio of one Common Share of the Company per Right,
appropriately adjusted to reflect any stock split, stock dividend or similar
transaction occurring after the date hereof (such exchange ratio being
hereinafter referred to as the "Exchange Ratio").
(b) Immediately upon the action of the Board of Directors of the
Company ordering the exchange of any Rights pursuant to Section 24(a) and
without any further action and without any notice, the right to exercise such
Rights shall terminate and the only right thereafter of a holder of such Rights
shall be to receive that number of Common Shares equal to the number of
-23-
such Rights held by such holder multiplied by the Exchange Ratio. The
Company shall promptly give public notice of any such exchange; PROVIDED,
HOWEVER, that the failure to give, or any defect in, such notice shall not
affect the validity of such exchange. The Company shall promptly mail a
notice of any such exchange to all of the holders of such Rights at their
addresses as they appear upon the registry books of the Rights Agent. Any
notice which is mailed in the manner herein provided shall be deemed given,
whether or not the holder receives the notice. Each such notice of exchange
will state the method by which the exchange of the Common Shares for Rights
will be effected and, in the event of any partial exchange, the number of
Rights which will be exchanged. Any partial exchange shall be effected pro
rata based on the number of Rights (other than Rights which have become void
pursuant to the provisions of Section 11(a)(ii) hereof) held by each holder
of Rights.
(c) In any exchange pursuant to this Section 24, the Company, at its
option, may substitute interests in Preferred Shares (or equivalent preferred
shares, as such term is defined in Section 11(b) hereof) for Common Shares
exchangeable for Rights, at the initial rate of one one-thousandth interest in a
Preferred Share (or equivalent preferred share) for each Common Share, as
appropriately adjusted to reflect adjustments in the voting rights of the
Preferred Shares pursuant to Section 3 of the Certificate of Designation,
Powers, Preferences and Rights attached hereto as EXHIBIT A, so that the
fraction of a Preferred Share delivered in lieu of each Common Share shall have
the same voting rights as one Common Share.
(d) In the event that there shall not be sufficient Common Shares or
Preferred Shares issued but not outstanding or authorized but unissued to permit
any exchange of Rights as contemplated in accordance with this Section 24, the
Company shall take all such action as may be necessary to authorize additional
Common Shares or Preferred Shares for issuance upon exchange of the Rights. In
the event that the Company, after good faith effort, shall be unable to take
shall such action as may be necessary to authorize such additional Common Shares
or Preferred Shares, the Company shall substitute, for each Common Share or
Preferred Share that would otherwise be issuable upon exchange of a Right, a
number of Common Shares, Preferred Shares or shares of preferred stock, notes,
debentures or other securities, or any combination thereof, having an aggregate
value equal to the Rights to be exchanged, which value shall be determined by a
nationally recognized investment banking firm selected by the Board of
Directors.
(e) The Company shall not be required to issue fractions of Common
Shares or to distribute certificates which evidence fractional Common Shares.
In lieu of such fractional Common Shares, the Company shall pay to the
registered holders of the Right Certificates with regard to which such
fractional Common Shares would otherwise be issuable an amount in cash equal
to the same fraction of the current market value of a whole Common Share.
For the purposes of this Section 24(e), the current market value of a whole
Common Share of the Company shall be the closing price of a Common Share of
the Company (as determined pursuant to the second sentence of Section 11(d)(i)
hereof) for the Trading Day immediately prior to the date of exchange pursuant
to this Section 24.
-24-
SECTION 25. NOTICE OF CERTAIN EVENTS.
(a) In case the Company shall propose (i) to pay any dividend payable
in stock of any class to the holders of Preferred Shares or to make any other
distribution to the holders of Preferred Shares (other than a regular quarterly
cash dividend), (ii) to offer to the holders of Preferred Shares rights
(preemptive or otherwise) or warrants to subscribe for or to purchase any
additional Preferred Shares or shares of stock of any class or any other
securities, rights or options, (iii) to effect any reclassification of Preferred
Shares (other than a reclassification involving only the subdivision of
outstanding Preferred Shares), (iv) to effect any consolidation or merger into
or with, or to effect any sale or other transfer (or to permit one or more of
its Subsidiaries to effect any sale or other transfer), in one or more
transactions, of 50% or more of the assets or earning power of the Company and
its Subsidiaries (taken as a whole) to, any other Person, (v) to effect the
liquidation, dissolution or winding up of the Company, or (vi) to declare or pay
any dividend on the Common Shares payable in Common Shares, to reclassify the
Common Shares, or to otherwise effect a split-up, division or combination of the
Common Shares, then, in each such case, the Company shall give to each holder of
a Right Certificate, in accordance with Section 26 hereof, a notice of such
proposed action, which shall specify the record date for purposes of such stock
dividend, or distribution of rights or warrants, or the date on which such
reclassification, consolidation, merger, sale, transfer, liquidation,
dissolution, or winding up is to take place and the date of participation
therein by the holders of the Common Shares and/or Preferred Shares, if any such
date is to be fixed, and such notice shall be so given in the case of any action
described by clause (i) or (ii) above at least ten days prior to the record date
for determining holders of the Preferred Shares for purposes of such action, and
in the case of any such other action, at least ten 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 and/or Preferred Shares, whichever shall be the
earlier.
(b) In case the event set forth in Section 11(a)(ii) hereof shall
occur, then the Company shall as soon as practicable thereafter give to each
holder of a Right Certificate, in accordance with Section 26 hereof, a notice of
the occurrence of such event, which notice shall describe the event and the
consequences of the event to holders of Rights under Section 11(a)(ii) hereof.
SECTION 26. NOTICES. Notices or demands authorized by this Agreement
to be given or made by the Rights Agent or by the holder of any Right
Certificate to or on the 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:
UroCor, Inc.
000 Xxxxxxxx Xxxxxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Attention: Corporate Secretary
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Subject to the provisions of Section 21 hereof, 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:
American Stock Transfer & Trust Company
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxx or Xxx Xxxxxx
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 registry
books of the Company.
SECTION 27. SUPPLEMENTS AND AMENDMENTS. The Company may (and the
Rights Agent shall at the direction of the Company) from time to time
supplement or amend this Agreement without the approval of any holders of
Right Certificates in order (i) at any time, to cure any ambiguity, (ii) at
any time, to amend, correct or supplement any provision contained herein
which may be defective or inconsistent with any other provisions herein,
(iii) prior to the Distribution Date, to change or supplement any of the
provisions hereof in any manner which the Company may deem necessary or
desirable (including, but without any limitation, changing the percentage of
ownership of Common Shares at which a Person becomes an Acquiring Person, the
Distribution Date, the time for redemption of Rights or the time for, or
limits on, amendment of this Agreement) or (iv) after the Distribution Date,
to change or supplement the provisions hereof in any manner which the Company
may deem necessary or desirable and which shall not adversely affect the
interests of the holders of the Rights Certificates (other than an Acquiring
Person or an Affiliate or Associate of an Acquiring Person), any such
supplement or amendment to be evidenced by a writing signed by the Company
and the Rights Agent.
SECTION 28. 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 29. BENEFITS OF THIS AGREEMENT. Nothing in this Agreement
shall be construed to give to any Person other than the Company, the Rights
Agent and the registered holders of the Right Certificates (and, prior to the
Distribution Date, the Common Shares of the Company) any legal or equitable
right, remedy or claim under this Agreement; and this Agreement shall be for
the sole and exclusive benefit of the Company, the Rights Agent and the
registered holders of the Right Certificates (and, prior to the Distribution
Date, the Common Shares of the Company).
SECTION 30. SEVERABILITY. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable,
-26-
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 31. 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 Delaware 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 32. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of such counterparts shall for all purposes be deemed
to be an original, and all such counterparts shall together constitute but
one and the same instrument.
SECTION 33. DESCRIPTIVE HEADINGS. Descriptive headings of the several
Sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
SECTION 34. DETERMINATIONS AND ACTIONS BY THE BOARD OF DIRECTORS. The
Board of Directors of the Company shall have the exclusive power and
authority to administer this Agreement and to exercise all rights and powers
specifically granted to the Board of Directors of the Company or to the
Company, or as may be necessary or advisable in the administration of this
Agreement, including, without limitation, the right and power to (i) interpret
the provisions of this Agreement and (ii) make all determinations deemed
necessary or advisable for the administration of this Agreement (including a
determination to redeem or not redeem the Rights or to amend the Agreement).
All such actions, calculations, interpretations and determinations
(including, for purposes of clause (y) below, all omissions with respect to
the foregoing) that are done or made by the Board of Directors of the Company
in good faith, shall (x) be final, conclusive and binding on the Company, the
Rights Agent, the holders of the Rights and all other Persons, and (z) not
subject the Board of Directors of the Company to any liability to the holders
of the Rights.
-27-
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.
UROCOR, INC.
By /s/ XXXXXXX X. XXXXXXXX
----------------------------------------
Xxxxxxx X. Xxxxxxxx, Chairman of the Board,
President and Chief Executive Officer
AMERICAN STOCK TRANSFER & TRUST COMPANY
By /s/ XXXXXXX X. XXXXXX
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
------------------------------------
Title: Vice President
-----------------------------------
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EXHIBIT A
CERTIFICATE OF DESIGNATION, POWERS,
PREFERENCES AND RIGHTS
of
SERIES I PREFERRED STOCK
of
UROCOR, INC.
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
The undersigned, Socrates H. Choumbakos, Senior Vice President,
Corporate Planning and Development and Secretary of UroCor, Inc., a Delaware
corporation (the "Company"), hereby certifies that pursuant to authority
granted to and vested in the Board of Directors of the Company by the
provisions of the Restated Certificate of Incorporation of the Company, the
Board of Directors of the Company has duly adopted the following resolutions
creating a series of Preferred Stock designated as the Series I Preferred
Stock:
"RESOLVED, that pursuant to Article Fourth of the Restated
Certificate of Incorporation of UroCor, Inc., a Delaware corporation (the
"Corporation"), which (a) authorizes the Corporation to issue 6,000,000
shares of Preferred Stock, par value $.01 per share ("Preferred Stock"), none
of which are issued and outstanding at the date hereof, and (b) expressly
vests in the Board of Directors of the Corporation (the "Board"), subject to
the limitations prescribed by law and the provisions of said Article Fourth,
the authority to provide by resolution or resolutions for the issuance of
shares of Preferred Stock in series and, by filing a certificate pursuant to
the General Corporation Law of the State of Delaware, to establish from time
to time the number of shares to be included in each of such series and to fix
the designation, powers, preferences and rights of the shares of each of such
series, or of particular holders thereof, the Board hereby fixes the powers,
preferences and rights of the shares of a series of Preferred Stock and the
qualifications, limitations and restrictions thereof, as follows:
Section 1. DESIGNATION AND AMOUNT. The shares of such series
shall be designated "Series I Preferred Stock", and the number of shares
constituting the Series I Preferred Stock shall initially be 50,000. The
number of shares of Series I Preferred Stock may be increased or decreased
from time to time by resolution of the Board, PROVIDED that no such decrease
shall reduce the number of shares of Series I Preferred Stock to less than
the sum of (a) the number of shares of Series I Preferred Stock then
outstanding, (b) the number of shares of Series I Preferred Stock that the
Corporation is obligated to issue upon the exercise of then outstanding
rights, options or warrants
-1-
and (c) the number of shares of Series I Preferred Stock that the
Corporation is obligated to issue upon the conversion of then outstanding
convertible securities.
Section 2. DIVIDENDS AND DISTRIBUTIONS.
(a) Subject to the rights of holders of shares of any series of
Preferred Stock that ranks prior to the Series I Preferred Stock with
respect to dividends, the holders of shares of Series I Preferred Stock, in
preference to the rights of holders of shares of Common Stock, par value
$.01 per share ("Common Stock"), of the Corporation with respect to
dividends, and in preference to the rights of holders of shares of any series
of Preferred Stock that ranks junior to the Series I Preferred Stock with
respect to dividends, shall be entitled to receive, when, as and if declared
by the Board out of funds legally available for that purpose, quarterly
dividends, which shall be payable in cash except as hereinafter provided, on
the first day of January, April, July and October in each year during which a
share or fraction of a share of Series I Preferred Stock is outstanding (each
such date being referred to herein as a "Quarterly Dividend Payment Date"),
commencing on the first Quarterly Dividend Payment Date after the first
issuance of a share or fraction of a share of Series I Preferred Stock, each
such dividend to be in an amount per share (rounded to the nearest cent)
equal to:
(i) subject to the provision for adjustment set forth in the next
succeeding sentence,
(A) 1,000 times the aggregate per share amount of all cash
dividends declared on the Common Stock after the immediately
preceding Quarterly Dividend Payment Date or, with respect to the
first Quarterly Dividend Payment Date, after the first issuance of
any share or fraction of a share of Series I Preferred Stock, plus
(B) 1,000 times the aggregate per share amount, which shall
be payable in kind, of all non-cash dividends or other
distributions (other than (x) a dividend on the Common Stock that
is payable in shares of Common Stock or (y) a distribution solely
on account of a reclassification of, or other split-up, division or
combination of shares of, Common Stock) declared on the Common
Stock after the immediately preceding Quarterly Dividend Payment
Date or, with respect to the first Quarterly Dividend Payment Date,
after the first issuance of any share or fraction of a share of
Series I Preferred Stock; or
(ii) if no dividend or other distribution (other than (x) a
dividend on the Common Stock that is payable in shares of Common Stock
or (y) a distribution solely on account of a reclassification of, or
other split-up, division or combination of shares of, Common Stock)
shall have been declared on the Common Stock after the immediately
preceding Quarterly Dividend Payment Date or, with respect to the first
Quarterly Dividend Payment Date, after the first issuance of any share
or fraction of a share of Series I Preferred Stock, $1.00.
-2-
In the event that the Corporation shall at any time after August 27, 1998,
(1) declare a dividend on the Common Stock that is payable in shares of
Common Stock, (2) reclassify the Common Stock or (3) otherwise effect a
split-up, division or combination of shares of Common Stock, then in each
such case the amount per share to which holders of shares of Series I
Preferred Stock were entitled immediately prior to such event under
Section 2(a)(i) shall be adjusted by multiplying such amount by a fraction,
the numerator of which shall be the number of shares of Common Stock that are
outstanding immediately after such event and the denominator of which shall
be the number of shares of Common Stock that were outstanding immediately
prior to such event.
(b) Immediately after the Board declares a dividend or other
distribution on the Common Stock (other than (x) a dividend on the Common
Stock that is payable in shares of Common Stock or (y) a distribution solely
on account of a reclassification of, or other split-up, division or
combination of shares of, Common Stock), if any share or fraction of a share
of Series I Preferred Stock is then outstanding, the Board shall declare a
dividend on the Series I Preferred Stock, which shall be payable at the time
and in the amount provided in Section 2(a). If (i) any share or fraction of
a share of Series I Preferred stock is then outstanding, (ii) no dividend or
other distribution (other than (x) a dividend on the Common Stock that is
payable in shares of Common Stock or (y) a distribution solely on account of
a reclassification of, or other split-up, division or combination of shares
of, Common Stock) shall have been declared on the Common Stock during the
period between the immediately preceding Quarterly Dividend Payment Date and
the next succeeding Quarterly Dividend Payment Date or, with respect to the
first Quarterly Dividend Payment Date, between the date of the first issuance
of any share or fraction of a share of Series I Preferred Stock and such
first Quarterly Dividend Payment Date, and (iii) there are funds legally
available for the payment of a dividend on the Series I Preferred Stock, the
Board shall, at any time prior to such next succeeding Quarterly Dividend
Payment Date or such first Quarterly Dividend Payment Date, as the case may
be, declare a dividend of $1.00 per share on the Series I Preferred Stock,
which shall be payable on such next succeeding Quarterly Dividend Payment
Date or such first Quarterly Dividend Payment Date, as the case may be.
(c) Dividends on shares of Series I Preferred Stock shall begin to accrue
and be cumulative from the Quarterly Dividend Payment Date that immediately
precedes the date of issuance of such shares unless (i) the date of issuance of
such shares is prior to the record date for the determination of holders of
shares of Series I Preferred Stock entitled to receive a dividend on the first
Quarterly Dividend Payment Date, in which event dividends on such shares shall
begin to accrue and be cumulative from the date of issuance of such shares,
(ii) the date of issuance of such shares is a Quarterly Dividend Payment Date,
in which event dividends on such shares shall begin to accrue and be cumulative
from such Quarterly Dividend Payment Date, or (iii) the date of issuance of such
shares is a date after the record date for the determination of holders of
shares of Series I Preferred Stock entitled to receive a dividend on the
Quarterly Dividend Payment Date that next succeeds the date of issuance of such
shares, in which event dividends on such shares shall begin to accrue and be
cumulative from such next succeeding Quarterly Dividend Payment Date. Accrued
but unpaid dividends on shares of Series I Preferred Stock shall not bear
interest. If a dividend is declared on the Series I Preferred Stock and the
total amount of that dividend is less than the total amount of all
-3-
dividends accrued and payable on all shares of Series I Preferred Stock at
the time of payment of that dividend, then the portion of the total amount of
that dividend to be allocated to each of such shares shall be determined by
multiplying the total amount of that dividend by a fraction, the numerator of
which shall be the total amount of all dividends accrued and payable on that
share at that time and the denominator of which shall be the total amount of
all dividends accrued and payable on all such shares at that time. The Board
may fix a record date for the determination of holders of shares of Series I
Preferred Stock entitled to receive a dividend or other distribution on the
Series I Preferred Stock, which record date shall be no more than 30 days
prior to the date fixed for the payment of that dividend or other
distribution.
(d) If at any time (i) any holder of shares of Series I Preferred
Stock would have been entitled under the foregoing provisions of this Section 2
to have received by that time a dividend on such shares, assuming that such
dividend had been declared, out of funds legally available for that purpose,
at the time and in the amount provided in the foregoing provisions of this
Section 2, and (ii) such dividend or any part thereof has not been paid to
such holder, then such dividend or part thereof shall be considered accrued
and payable at that time.
Section 3. VOTING.
(a) Subject to the provision for adjustment set forth in the next
succeeding sentence, each share of Series I Preferred Stock shall, except as
otherwise provided by law, entitle the holder thereof to 1,000 votes on each
matter that is submitted to a vote of stockholders of the Corporation. In
the event that the Corporation shall at any time after August 27, 1998,
(i) declare a dividend on the Common Stock that is payable in shares of Common
Stock, (ii) reclassify the Common Stock or (iii) otherwise effect a split-up,
division or combination of shares of Common Stock, then in each such case the
number of votes per share to which holders of shares of Series I Preferred
Stock were entitled immediately prior to such event shall be adjusted by
multiplying such number by a fraction, the numerator of which shall be the
number of shares of Common Stock that are outstanding immediately after such
event and the denominator of which shall be the number of shares of Common
Stock that were outstanding immediately prior to such event.
(b) Except as otherwise provided by law or in the Restated Certificate
of Incorporation of the Corporation or the resolution or resolutions of the
Board providing for the issuance of shares of Preferred Stock (including but
not limited to these resolutions):
(i) the holders of shares of Series I Preferred Stock, the
holders of shares of Common Stock and the holders of shares of any other
class or series of capital stock of the Corporation having general
voting rights shall vote together as a single class on each matter that
is submitted to a vote of stockholders of the Corporation, and
(ii) the holders of shares of Series I Preferred Stock shall not
have any special voting rights.
-4-
Section 4. CERTAIN RESTRICTIONS. Unless and until all dividends at the
time accrued and payable on all shares of Series I Preferred Stock have been
paid in full, the Corporation shall not:
(a) declare or pay any dividend, or make any other distribution,
on any class or series of capital stock of the Corporation that ranks
junior, either with respect to dividends or upon liquidation,
dissolution or winding up, to the Series I Preferred Stock (any such
class or series being referred to herein as "Junior Stock");
(b) declare or pay any dividend, or make any other distribution,
on any class or series of capital stock of the Corporation that ranks in
parity, either with respect to dividends or upon liquidation,
dissolution or winding up, with the Series I Preferred Stock (any such
class or series being referred to herein as "Parity Stock"), except
dividends that are paid ratably on all shares of Series I Preferred
Stock on which dividends are at the time accrued and payable and all
shares of Parity Stock on which dividends are at the time accrued and
payable in proportion to the total amounts of dividends at the time
accrued and payable on all such shares;
(c) redeem, purchase or otherwise acquire for consideration any
shares of Junior Stock, PROVIDED that the Corporation may at any time
redeem, purchase or otherwise acquire shares of Junior Stock in exchange
for shares of other Junior Stock; or
(d) redeem, purchase or otherwise acquire for consideration any
shares of Series I Preferred Stock or any shares of Parity Stock,
except in accordance with an offer to purchase made in writing to all
holders of such shares upon terms that the Board, after considering the
relative rights and preferences of the respective series and classes of
such shares, considers in good faith will result in fair and equitable
treatment among the holders of such shares.
Section 5. REACQUIRED SHARES. Any shares of Series I Preferred
Stock that are purchased or otherwise acquired by the Corporation in any
manner whatsoever shall be retired and cancelled promptly after the
acquisition thereof. Upon their cancellation, all of such shares shall
become authorized but unissued shares of Preferred Stock and thereafter may
be issued as part of another series of Preferred Stock, subject to the rights
of holders (if any) of shares of Series I Preferred Stock set forth in these
resolutions.
Section 6. LIQUIDATION, DISSOLUTION OR WINDING UP. Upon any
liquidation, dissolution or winding up of the Corporation:
(a) no distribution shall be made to the holders of shares of
Junior Stock unless, prior to such distribution, the Corporation shall
have paid to each holder of shares of Series I Preferred Stock the sum
of (i) $100 per share of Series I Preferred Stock held by such holder
(such amount per share being referred to herein as the "Preference
Amount") plus (ii)
-5-
the total amount of all dividends at the time accrued and payable on
all shares of Series I Preferred Stock held by such holder;
(b) no distribution shall be made to the holders of shares of
Parity Stock, except distributions that are made ratably on both all
shares of Series I Preferred Stock and all shares of Parity Stock in
proportion to the total amounts to which the holders of all such shares
are entitled upon such liquidation, dissolution or winding up; and
(c) each holder of shares of Series I Preferred Stock shall be
entitled to receive the sum of (i) the total amount of all dividends at
the time accrued and payable on all shares of Series I Preferred Stock
held by such holder plus (ii) an aggregate amount per share (such amount
per share being referred to herein as the "Distributable Amount"),
inclusive of the Preference Amount but subject to the provision for
adjustment set forth in the next succeeding sentence, of Series I
Preferred Stock held by such holder that is equal to 1,000 times the
aggregate per share amount to be distributed to holders of shares of
Common Stock upon such liquidation, dissolution or winding up.
In the event that the Corporation shall at any time after August 27, 1998,
(1) declare a dividend on the Common Stock that is payable in shares of
Common Stock, (2) reclassify the Common Stock or (3) otherwise effect a
split-up, division or combination of shares of Common Stock, then in each
such case the Distributable Amount to which a holder of shares of Series I
Preferred Stock was entitled immediately prior to such event shall be
adjusted by multiplying such Distributable Amount by a fraction, the
numerator of which shall be the number of shares of Common Stock that are
outstanding immediately after such event and the denominator of which shall
be the number of shares of Common Stock that were outstanding immediately
prior to such event.
Section 7. CONSOLIDATION, MERGER, ETC. If the Corporation shall enter
into any consolidation, merger, share exchange or other transaction in which
all outstanding shares of Common Stock are exchanged for or changed into
other securities, cash, other property or any combination thereof, then each
outstanding share of Series I Preferred Stock shall at the same time be
similarly exchanged for or changed into an amount per share, subject to the
provision for adjustment set forth in the next succeeding sentence, equal to
1,000 times the aggregate amount of securities, cash and other property for
which each outstanding share of Common Stock is exchanged or into which each
outstanding share of Common Stock is changed. In the event that the
Corporation shall at any time after August 27, 1998, (1) declare a dividend
on the Common Stock that is payable in shares of Common Stock, (2) reclassify
the Common Stock or (3) otherwise effect a split-up, division or combination
of shares of Common Stock, then in each such case the amount per share for
which Series I Preferred Stock would be exchanged, or into the amount which
Series I Preferred Stock would be changed, immediately prior to such event
under the immediately preceding sentence of this Section 7, shall be adjusted
by multiplying such amount by a fraction, the numerator of which shall be the
number of shares of Common Stock that are outstanding immediately after such
event and the denominator of which shall be the number of shares of Common
Stock that were outstanding immediately prior to such event.
-6-
Section 8. REDEMPTION. The shares of Series I Preferred Stock shall
not be redeemable.
Section 9. RANKING. The Series I Preferred Stock shall rank junior to
each other series of Preferred Stock, both with respect to dividends and upon
liquidation, dissolution or winding up, unless the certificate of
designation, powers, preferences and rights of such other series of Preferred
Stock shall provide otherwise.
Section 10. AMENDMENT. If any share or fraction of a share of Series I
Preferred Stock is outstanding, neither the Restated Certificate of
Incorporation of the Corporation nor the resolution or resolutions of the
Board providing for the issuance of shares of Preferred Stock (including but
not limited to these resolutions) shall be amended in any manner that would
materially alter or change the powers, preferences or rights of holders of
shares of Series I Preferred Stock so as to affect such holders adversely
unless that amendment shall have received the affirmative vote of the holders
of a majority of the outstanding shares of Series I Preferred Stock voting
separately as a class. Notwithstanding the foregoing provisions of this
Section 10, whether or not a share or a fraction of a share of Series I
Preferred Stock is outstanding, (a) the Board may from time to time provide
by resolution or resolutions for the issuance of shares of Preferred Stock of
one or more series that rank prior to the Series I Preferred Stock, either
with respect to dividends or upon liquidation, dissolution or winding up, or
both with respect to dividends and upon liquidation, dissolution or winding
up, and (b) no vote or consent of any holder of shares of Series I Preferred
Stock shall be required either as a condition to the adoption of such
resolution or resolutions or as a condition to the issuance of such shares of
Preferred Stock.
Section 11. FRACTIONAL SHARES. Series I Preferred Stock may be issued
in fractions of a share. Each holder of a fraction of a share of Series I
Preferred Stock shall be entitled to exercise voting rights, to receive
dividends and other distributions, and to have all other rights of the
holders of whole shares of Series I Preferred Stock in proportion to the
fraction of a share of Series I Preferred Stock held by that holder.
RESOLVED FURTHER, that the proper officers of the Corporation be, and
each of them hereby is, authorized to execute a Certificate of Designation,
Powers, Preferences and Rights of Series I Preferred Stock of the
Corporation pursuant to Section 151 of the General Corporation Law of the
State of Delaware and to take all appropriate action to cause that
Certificate to be filed, recorded and become effective in accordance with
Section 103 of the General Corporation Law of the State of Delaware."
IN WITNESS WHEREOF, this Certificate has been executed this 17th day of
August, 1998.
--------------------------------------------------
Socrates H. Choumbakos
Senior Vice President, Corporate Planning and
Development and Secretary
-7-
EXHIBIT B
FORM OF RIGHT CERTIFICATE
Certificate No. R Rights
-----
NOT EXERCISABLE AFTER AUGUST 27, 2008, OR EARLIER IF REDEMPTION OR
EXCHANGE OCCURS. THE RIGHTS ARE SUBJECT TO REDEMPTION AT $.001 PER
RIGHT AND TO EXCHANGE ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT.
Right Certificate
UroCor, Inc.
This certifies that _________________________________, or registered
assigns, is the registered owner of the number of Rights set forth above,
each of which entitles the owner thereof, subject to the terms, provisions
and conditions of the Rights Agreement, dated as of August 17, 1998 (the
"Rights Agreement"), between UroCor, Inc., a Delaware corporation (the
"Company"), and American Stock Transfer & Trust Company (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 the close of business
(as defined in the Rights Agreement) on August 27, 2008, at the principal
offices of the Rights Agent, or at the offices of its successor as Rights
Agent, one one-thousandth interest in one share of Series I Preferred Stock,
par value $.01 per share (the "Preferred Shares"), of the Company, at a
purchase price of $35.00 per one one-thousandth interest in a Preferred 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 one
one-thousandth interests in a Preferred Share 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 August 27, 1998, based on the Preferred
Shares as constituted at such date. As provided in the Rights Agreement, the
Purchase Price and the number of one one-thousandth interests in a Preferred
Share which may be purchased upon the exercise of the Rights evidenced by
this Right Certificate are subject to modification and adjustment upon the
happening of certain events.
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 above-mentioned offices of the Rights Agent.
This Right Certificate, with or without other Right Certificates, upon
surrender at the principal office of the Rights Agent, may be exchanged for
another Right Certificate or Right Certificates of like tenor and date
evidencing Rights entitling the holder to purchase a like aggregate number of
interests in Preferred 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
B-1
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 $.001 per Right payable in cash, Preferred Shares or other consideration
or (ii) may be exchanged in whole or in part for Preferred Shares or shares
of the Company's Common Stock, par value $.01 per share.
No fractional interests in Preferred Shares will be issued upon the
exercise of any Right or Rights evidenced hereby (other than fractional
interests which are integral multiples of one one-thousandth of a Preferred
Share, which may, at the election of the Company, be evidenced by depositary
receipts), 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 Preferred 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 stockholder of the Company or any right to vote for the election
of directors or upon any matter submitted to stockholders at any meeting
thereof, or to give or withhold consent to any corporate action, or to
receive notice of meetings, proceedings or other actions affecting
stockholders (except as provided in the Rights Agreement), or to receive
dividends or subscription rights, or otherwise, until the Right or Rights
evidenced by this Right Certificate shall have been exercised in accordance
with the provisions of the Rights Agreement.
This Right Certificate shall not be valid or obligatory for any purpose
until it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the Company
and its corporate seal.
Dated as of , .
---------------- ------
UROCOR, INC.
By
---------------------------------
Countersigned:
---------------------------------
By
---------------------------------
Authorized Signature
B-2
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
(Please print name and address of transferee)
transfers unto ____ this Right Certificate, together with all right, title
and interest therein, and does hereby irrevocably constitute and appoint
____________________________ Attorney, to transfer the within Right
Certificate on the books of the within-named Company, with full power of
substitution.
Dated: , .
------------------ -----
-----------------------------------------
Signature
Signature Guarantee:
Signatures must be guaranteed by an "eligible guarantor institution"
(such as a bank, stockbroker, credit union or savings association) pursuant
to Rule 17Ad-15 of the Rules and Regulations of the Securities Exchange Act
of 1934.
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
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) and that after due
inquiry and to the best of the knowledge of the undersigned, it did not
acquire the Rights evidenced by this Rights Certificate for any Person who
is, was or subsequently became an Acquiring Person or an Affiliate or
Associate of such Person.
-----------------------------------------
Signature
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
B-3
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: UroCor, Inc.
The undersigned hereby irrevocably elects to exercise ____________
Rights represented by this Right Certificate to purchase the interests in
Preferred Shares issuable upon the exercise of such Rights and requests that
certificates for such interests in Preferred Shares be issued in the name of:
-------------------------------------------------------------------------------
(Please print name and address)
-------------------------------------------------------------------------------
(Please insert social security or other identifying number)
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 print name and address)
-------------------------------------------------------------------------------
(Please insert social security or other identifying number)
Dated: , .
--------------------- ------
-----------------------------------------
Signature
Signature Guarantee:
Signatures must be guaranteed by an "eligible guarantor institution"
(such as a bank, stockbroker, credit union or savings association) pursuant
to Rule 17Ad-15 of the Rules and Regulations of the Securities Exchange Act
of 1934.
B-4
FORM OF REVERSE SIDE OF RIGHT CERTIFICATE -- CONTINUED
-------------------------------------------------------------------------------
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) and that after due
inquiry and to the best of the knowledge of the undersigned, it did not acquire
the Rights evidenced by this Rights Certificate for any Person who is, was or
subsequently became an Acquiring Person or an Affiliate or Associate of such
Person.
-----------------------------------------
Signature
-------------------------------------------------------------------------------
NOTICE
The signature in the foregoing Forms of Assignment and Election must
conform to the name as written upon the face of this Right Certificate in
every particular, without alteration or enlargement or any change whatsoever.
In the event the certification set forth above in the Form of Assignment
or the Form of Election to Purchase, as the case may be, is not completed,
the 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.
B-5
EXHIBIT C
SUMMARY OF RIGHTS TO PURCHASE PREFERRED SHARES
On August 17, 1998, the Board of Directors of UroCor, Inc. (the
"Company") declared a dividend of one Preferred Share purchase right (a
"Right") for each outstanding share of common stock, par value $.01 per share
(the "Common Shares"), of the Company and authorized the issuance of one
Right for each Common Share which shall become outstanding between the Record
Date and the earlier of the Distribution Date (as hereinafter defined) or the
final expiration date of the Rights. The dividend is payable on August 27,
1998 (the "Record Date") to the stockholders of record on that date. Each
Right entitles the registered holder to purchase from the Company one share
of Series I Preferred Stock, par value $ .01 per share (the "Preferred
Shares"), of the Company at a price of $35.00 per one one-thousandth interest
in a Preferred Share (the "Purchase Price"), subject to adjustment. The
description and terms of the Rights are set forth in a Rights Agreement (the
"Rights Agreement") between the Company and American Stock Transfer & Trust
Company, as Rights Agent (the "Rights Agent").
Until the earlier to occur of (i) ten business days following a public
announcement that a person or group of affiliated or associated persons (an
"Acquiring Person") have acquired beneficial ownership of 15% or more of the
outstanding Common Shares and (ii) ten business days following the
commencement of, or announcement of an intention to make, a tender offer or
exchange offer the consummation of which would result in the beneficial
ownership by a person or group of 15% or more of such outstanding Common
Shares (the earlier of such dates being called the "Distribution Date"), the
Rights will be evidenced, with respect to any Common Share certificate
outstanding as of the Record Date, by such Common Share certificate. The
Rights Agreement provides that, until the Distribution Date, the Rights will
be transferred with and only with the Common Shares.
Until the Distribution Date (or earlier redemption, exchange or
expiration of the Rights), new Common Share certificates issued after the
Record Date, upon transfer or new issuance of Common Shares will contain a
notation incorporating the Rights Agreement by reference.
Until the Distribution Date (or earlier redemption, exchange or
expiration of the Rights), the surrender for transfer of any certificates for
Common Shares outstanding as of the Record Date also will constitute the
transfer of the Rights associated with the Common Shares represented by such
certificate. As soon as practicable following the Distribution Date,
separate certificates evidencing the Rights ("Right Certificates") will be
mailed to holders of record of the Common Shares as of the close of business
on the Distribution Date and such separate Right Certificates alone will
evidence the Rights.
The Rights are not exercisable until the Distribution Date. The Rights
will expire on August 27, 2008 (the "Final Expiration Date"), unless the
Final Expiration Date is extended or unless the Rights are earlier redeemed
or exchanged by the Company, in each case, as described below.
C-1
The Purchase Price payable, and the number of interests in Preferred
Shares or other securities or property issuable, upon exercise of the Rights
are subject to adjustment from time to time to prevent dilution (i) in the
event of a stock dividend on, or a subdivision, combination or
reclassification of, the Preferred Shares, (ii) upon the grant to holders of
the Preferred Shares of certain rights, options or warrants to subscribe for
or purchase Preferred Shares at a price, or securities convertible into
Preferred Shares with a conversion price, less than the then current market
price of the Preferred Shares or (iii) upon the distribution to holders of
the Preferred Shares of evidences of indebtedness or assets (excluding
regular periodic cash dividends paid out of earnings or retained earnings or
dividends payable in Preferred Shares) or of subscription rights or warrants
(other than those referred to above).
The number of outstanding Rights and the number of one one-thousandth
interests in a Preferred Share issuable upon exercise of each Right are also
subject to adjustment in the event of a stock split of the Preferred Shares
or a stock dividend on the Preferred Shares payable in Preferred Shares or
subdivisions, consolidations or combinations of the Preferred Shares
occurring, in any such case, prior to the Distribution Date.
Interests in Preferred Shares purchasable upon exercise of the Rights
will not be redeemable. Each Preferred Share will be entitled to a minimum
preferential quarterly dividend payment of $1 per share but will be entitled
to an aggregate dividend of 1,000 times the dividend declared per Common
Share. In the event of a liquidation, the holders of the interests in
Preferred Shares will be entitled to a minimum preferential liquidation
payment of $100 per share but will be entitled to an aggregate payment of
1,000 times the payment made per Common Share. Each Preferred Share will
have 1,000 votes, voting together with the Common Shares. Finally, in the
event of any merger, consolidation or other transaction in which Common
Shares are exchanged, each Preferred Share will be entitled to receive 1,000
times the amount received per Common Share. These rights are protected by
customary antidilution provisions.
Because of the nature of the Preferred Shares' dividend, liquidation and
voting rights, the value of the one one-thousandth interest in a Preferred
Share purchasable upon exercise of each Right should approximate the value of
one Common Share.
In the event the Company is, in effect, acquired in a merger or other
business combination transaction or 50% or more of its consolidated assets or
earning power is sold, proper provision will be made so that each holder of a
Right will thereafter generally have the right to receive, upon the exercise
thereof at the then current exercise price of the Right, that number of shares
of common stock of the acquiring company which at the time of such transaction
will have a market value of two times the exercise price of the Right. In the
event any person becomes an Acquiring Person, proper provision shall be made so
that each holder of a Right, other than Rights beneficially owned by the
Acquiring Person (which will thereafter be null and void for all purposes of the
Rights Agreement and the holder thereof shall thereafter have no rights with
respect to such Rights, whether under the Rights Agreement or otherwise), will
thereafter have the right to receive upon exercise that number of Common Shares
having a market value of two times the exercise price of the Right. Under some
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circumstances, in lieu of Common Shares, other equity and debt securities,
property, cash or combinations thereof, including combinations with Common
Shares, may be issued upon payment of the exercise price if of equal value to
the number of Common Shares for which the Right is exercisable.
Under certain circumstances, after a Person has become an Acquiring
Person, the Board of Directors of the Company may exchange the Rights (other
than Rights that were or are beneficially owned by an Acquiring Person), in
whole or in part, at an exchange ratio of one Common Share per Right (subject
to adjustment).
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments require an adjustment of at least 1% in
such Purchase Price. No fractional Preferred Shares (other than fractions
which are integral multiples of one one-thousandth of a Preferred Share,
which may, at the election of the Company be evidenced by depositary
receipts) will be issued, and in lieu thereof, an adjustment in cash will be
made based on the market price of the Preferred Shares on the last trading
day prior to the date of exercise.
At any time prior to the close of business on the tenth business day
after the first date of public announcement by the Company or an Acquiring
Person that an Acquiring Person has become such (a "Shares Acquisition
Date"), the Board of Directors of the Company may redeem the Rights in whole,
but not in part, at a price of $.001 per right (the "Redemption Price"),
which may be paid in cash or with Preferred Shares or other consideration
deemed appropriate by the Board of Directors of the Company. Immediately
upon any redemption of the Rights, the right to exercise the Rights will
terminate and the only right of the holders of Rights will be to receive the
Redemption Price.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company, including, without limitation, the
right to vote or to receive dividends.
The terms of the Rights may be amended by the Board of Directors of the
Company without the consent of the holders of the Rights at any time to cure
any ambiguity or to correct or supplement any defective or inconsistent
provisions and may, prior to the Distribution Date, be amended to change or
supplement any other provision in any manner which the Company may deem
necessary or desirable. After the Distribution Date, the terms of the Rights
may be amended only so long as such amendment shall not adversely affect the
interests of the holders of the Rights (which may not be an Acquiring Person
in whose hands Rights are void), other than to cure ambiguities or correct or
supplement defective or inconsistent provisions.
The Company has filed a copy of the Rights Agreement with the Securities
and Exchange Commission as an Exhibit to a Registration Statement on Form 8-A.
A copy of the Rights Agreement is available free of charge from the Company.
This summary description of the Rights does not purport to be complete and is
qualified in its entirety by reference to the Rights Agreement, which is
hereby incorporated herein by reference.
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