EXHIBIT 4.1
XXXXXXXX METALS COMPANY
and
CHASEMELLON SHAREHOLDER SERVICES, L.L.C., as Rights Agent
AMENDED AND RESTATED
RIGHTS AGREEMENT
Dated as of March 8, 1999
TABLE OF CONTENTS
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Page
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Section 1. Certain Definitions ..................................... 1
Section 2. Appointment of Rights Agent ............................. 5
Section 3. Issue of Right Certificates ............................. 5
Section 4. Form of Right Certificates .............................. 7
Section 5. Countersignature and Registration ....................... 7
Section 6. Transfer, Split Up, Combination and Exchange of Right
Certificates; Mutilated, Destroyed, Lost or Stolen Right
Certificates ............................................ 8
Section 7. Exercise of Rights, Purchase Price; Expiration Date
of Rights ............................................... 9
Section 8. Cancellation and Destruction of Right Certificates ...... 10
Section 9. Availability of Shares of Preferred Stock ............... 10
Section 10. Preferred Stock Record Date ............................. 11
Section 11. Adjustment of Purchase Price, Number of Shares and
Number of Rights ........................................ 12
Section 12. Certificate of Adjusted Purchase Price or Number
of Shares ............................................... 19
Section 13. Consolidation, Merger or Sale or Transfer of Assets or
Earning Power ........................................... 19
Section 14. Fractional Rights and Fractional Shares ................. 22
Section 15. Rights of Action ........................................ 24
Section 16. Agreement of Right Holders .............................. 24
Section 17. Right Certificate Holder Not Deemed a Stockholder ....... 25
Section 18. Concerning the Rights Agent ............................. 25
Section 19. Merger or Consolidation or Change of Name of
Rights Agent ............................................ 26
Section 20. Duties of Rights Agent .................................. 26
Section 21. Change of Rights Agent .................................. 28
Section 22. Issuance of New Right Certificates ...................... 29
Section 23. Redemption .............................................. 29
Section 24. Exchange ................................................ 30
Section 25. Notice of Certain Events ................................ 31
Section 26. Notices ................................................. 32
Section 27. Supplements and Amendments .............................. 32
Section 28. Successors .............................................. 33
Section 29. Benefits of this Agreement .............................. 33
Section 30. Determinations and Actions by the Board of Directors .... 33
Section 31. Severability ............................................ 33
Section 32. Governing Law ........................................... 33
Section 33. Counterparts ............................................ 33
Section 34. Descriptive Headings .................................... 34
1
AMENDED AND RESTATED
RIGHTS AGREEMENT
This Amended and Restated Rights Agreement, dated as
of March 8, 1999 (this "Agreement"), between Xxxxxxxx
Metals Company, a Delaware corporation (the "Company"), and
ChaseMellon Shareholder Services, L.L.C., as rights agent
(the "Rights Agent"), amends and restates that certain Rights
Agreement, dated as of December 1, 1997, between the Company
and the Rights Agent.
W I T NE S S E T H:
WHEREAS, on November 21, 1997, the Board of Directors
of the Company authorized and declared a dividend of one
preferred stock purchase right (a "Right") for each share of
Common Stock (as hereinafter defined) of the Company
outstanding on the Close of Business (as defined below) on
December 1, 1997 (the "Record Date"), each right representing
the right to purchase one one-hundredth (subject to
adjustment) of a share of Preferred Stock (as hereinafter
defined), upon the terms and subject to the conditions set
forth in the original Rights Agreement among the parties
hereto, dated as of December 1, 1997 (the "Original
Agreement"), and has further authorized and directed the
issuance of one Right (subject to adjustment as provided
herein) with respect to each share of Common Stock that shall
become outstanding between the Record Date and the earlier of
the Distribution Date (subject to adjustment) and the
Expiration Date (as such terms are hereinafter defined); and
WHEREAS, pursuant to Section 27 of the Original
Agreement, the parties hereto and thereto wish to amend and
restate the Orginal Agreement to read in its entirety as set
forth herein, such that this Agreement shall supersede the
Original Agreement;
NOW THEREFORE, in consideration of the premises and
the mutual agreements herein set forth, the parties hereby
agree that the Original Agreement shall be amended and
restated to read in its entirety as follows:
Section 1. Certain Definitions. For purposes of
this Agreement, the following terms have the meaning
indicated:
(a) "Acquiring Person" shall mean any Person (as
such term is hereinafter defined) who or which shall be the
Beneficial Owner (as such term is hereinafter defined) of 15%
or more of the shares of Common Stock then outstanding, but
shall not include an Exempt Person (as such term is
hereinafter defined); provided, however, that (i) if the
Board of Directors of the Company determines in good faith
that a Person who would otherwise be an "Acquiring Person"
became the Beneficial Owner of a number of shares of Common
Stock such that the Person would otherwise qualify as an
"Acquiring Person" inadvertently (including, without
limitation, because (A) such Person was unaware that it
beneficially owned a percentage of Common Stock that would
otherwise cause such Person to be an "Acquiring Person" or
(B) such Person was aware of the extent of its Beneficial
Ownership of Common Stock but had no actual knowledge of the
consequences of such Beneficial Ownership under this
Agreement) and without any intention of changing or
influencing control of the Company,
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then such Person shall not be deemed to be or to have become
an "Acquiring Person" for any purposes of this Agreement
unless and until such Person shall have failed to divest
itself, as soon as practicable (as determined, in good
faith, by the Board of Directors of the Company), of Beneficial
Ownership of a sufficient number of shares of Common Stock
so that such Person would no longer otherwise qualify as an
"Acquiring Person"; (ii) if, as of the date hereof or prior
to the first public announcement of the adoption of this
Agreement, any Person is or becomes the Beneficial Owner of 15%
or more of the shares of Common Stock outstanding, such Person
shall not be deemed to be or to become an "Acquiring Person"
unless and until such time as such Person shall, after the
first public announcement of the adoption of this Agreement,
become the Beneficial Owner of additional shares of Common
Stock (other than pursuant to a dividend or distribution paid
or made by the Company on the outstanding Common Stock or
pursuant to a split or subdivision of the outstanding Common
Stock), unless, upon becoming the Beneficial Owner of such
additional shares of Common Stock, such Person is not then the
Beneficial Owner of 15% or more of the shares of Common Stock
then outstanding; and (iii) no Person shall become an
"Acquiring Person" as the result of an acquisition of shares
of Common Stock by the Company which, by reducing the number
of shares outstanding, increases the proportionate number of
shares of Common Stock beneficially owned by such Person to
15% or more of the shares of Common Stock then outstanding,
provided, however, that if a Person shall become the
Beneficial Owner of 15% or more of the shares of Common Stock
then outstanding by reason of such share acquisitions by the
Company and shall thereafter become the Beneficial Owner of
any additional shares of Common Stock (other than pursuant to
a dividend or distribution paid or made by the Company on the
outstanding Common Stock or pursuant to a split or
subdivision of the outstanding Common Stock), then such
Person shall be deemed to be an "Acquiring Person" unless
upon becoming the Beneficial Owner of such additional shares
of Common Stock such Person does not beneficially own 15% or
more of the shares of Common Stock then outstanding. For all
purposes of this Agreement, any calculation of the number of
shares of Common Stock outstanding at any particular time,
including for purposes of determining the particular
percentage of such outstanding shares of Common Stock of
which any Person is the Beneficial Owner, shall be made in
accordance with the last sentence of Rule 13d-3(d)(1)(i) of
the General Rules and Regulations under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), as in
effect on the date hereof.
(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 hereof.
(c) A Person shall be deemed the "Beneficial Owner"
of, shall be deemed to have "Beneficial Ownership" of and
shall be deemed to "beneficially own" any securities:
(i) which such Person or any of such Person's
Affiliates or Associates is deemed to beneficially own,
directly or indirectly, within the meaning of Rule l3d-3 of
the General Rules and Regulations under the Exchange Act as
in effect on the date hereof;
(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
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passage of time) pursuant to any agreement, arrangement
or understanding (other than customary agreements with and
between underwriters and selling group members with respect
to a bona fide public offering of securities), or upon the
exercise of conversion rights, exchange rights, rights,
warrants or options, or otherwise; provided, however, that a
Person shall not be deemed the Beneficial Owner of, or to
beneficially own, (x) 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, (y) securities
which such Person has a right to acquire upon the exercise of
Rights at any time prior to the time that any Person becomes
an Acquiring Person or (z) securities issuable upon the
exercise of Rights from and after the time that any Person
becomes an Acquiring Person if such Rights were acquired by
such Person or any of such Person's Affiliates or Associates
prior to the Distribution Date or pursuant to Section 3(a) or
Section 22 hereof ("Original Rights") or pursuant to Section
11(i) or Section 11(n) with respect to an adjustment to
Original Rights; or (B) the right to vote 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 by reason of such
agreement, arrangement or understanding if the agreement,
arrangement or understanding to vote such security (1) arises
solely from a revocable proxy or consent given to such Person
in response to a public proxy or consent solicitation made
pursuant to, and in accordance with, the applicable rules and
regulations promulgated under the Exchange Act and (2) is not
also then reportable on Schedule 13D under the Exchange Act
(or any comparable or successor report); or
(iii) which are beneficially owned, directly
or indirectly, by any other Person and with respect to 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 (except to the extent contemplated by the
proviso to Section 1(c)(ii)(B)) or disposing of such
securities of the Company;
provided, however, that no Person who is an officer, director
or employee of an Exempt Person shall be deemed, solely by
reason of such Person's status or authority as such, to be
the "Beneficial Owner" of, to have "Beneficial Ownership" of
or to "beneficially own" any securities that are
"beneficially owned" (as defined in this Section l(c)),
including, without limitation, in a fiduciary capacity, by an
Exempt Person or by any other such officer, director or
employee of an Exempt Person.
(d) "Business Day" shall mean any day other than a
Saturday, a Sunday or a day on which banking institutions in
the State of New York or the city in which the principal
office of the Rights Agent is located 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., New York City time, on such date; provided,
however, that if such date is not a Business Day it shall
mean 5:00 P.M., New York City time, on the next succeeding
Business Day.
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(f) "Common Stock" when used with reference to the
Company shall mean the Common Stock, presently without par
value, of the Company. "Common Stock" when used with
reference to any Person other than the Company shall mean the
common stock (or, in the case of an unincorporated entity,
the equivalent equity interest) with the greatest voting
power of such other Person or, if such other Person is a
subsidiary of another Person, the Person or Persons which
ultimately control such first-mentioned Person.
(g) "Common Stock Equivalents" shall have the
meaning set forth in Section 11(a)(iii) hereof.
(h) "Current Value" shall have the meaning set forth
in Section 11(a)(iii) hereof.
(i) "Distribution Date" shall have the meaning set
forth in Section 3 hereof.
(j) "Equivalent Preferred Shares" shall have the
meaning set forth in Section 11(b) hereof.
(k) "Exempt Person" shall mean the Company or any
Subsidiary (as such term is hereinafter defined) of the
Company, in each case including, without limitation, in its
fiduciary capacity, or any employee benefit plan of the
Company or of any Subsidiary of the Company, or any entity or
trustee holding Common Stock for or pursuant to the terms of
any such plan or for the purpose of funding any such plan or
funding other employee benefits for employees of the Company
or of any Subsidiary of the Company.
(l) "Exchange Ratio" shall have the meaning set
forth in Section 24 hereof.
(m) "Expiration Date" shall have the meaning set
forth in Section 7 hereof.
(n) "Flip-In Event" shall have the meaning set forth
in Section 11(a)(ii) hereof.
(o) "Final Expiration Date" shall have the meaning
set forth in Section 7 hereof.
(p) "NASDAQ" shall mean The Nasdaq Stock Market.
(q) "New York Stock Exchange" shall mean the New
York Stock Exchange, Inc.
(r) "Person" shall mean any individual, firm,
corporation, partnership, limited liability company, trust or
other entity, and shall include any successor (by merger or
otherwise) to such entity.
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(s) "Preferred Stock" shall mean the Series A Junior
Participating Preferred Stock, without par value, of the
Company having the rights and preferences set forth in the
excerpt of the Company's Restated Certificate of
Incorporation.
(t) "Principal Party" shall have the meaning set
forth in Section 13(b) hereof.
(u) "Redemption Date" shall have the meaning set
forth in Section 7 hereof.
(v) "Redemption Price" shall have the meaning set
forth in Section 23 hereof.
(w) "Right Certificate" shall have the meaning set
forth in Section 3 hereof.
(x) "Securities Act" shall mean the Securities Act
of 1933, as amended.
(y) "Section 11(a)(ii) Trigger Date" shall have the
meaning set forth in Section 11(a)(iii) hereof.
(z) "Spread" shall have the meaning set forth in
Section 11(a)(iii) hereof.
(aa) "Stock 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, or such earlier date as a majority of the Board of
Directors shall become aware of the existence of an Acquiring
Person.
(bb) "Subsidiary" of any Person shall mean any
corporation or other entity of which securities or other
ownership interests having ordinary voting power sufficient
to elect a majority of the board of directors or other
persons performing similar functions are beneficially owned,
directly or indirectly, by such Person, and any corporation
or other entity that is otherwise controlled by such Person.
(cc) "Substitution Period" shall have the meaning set
forth in Section 11(a)(iii) hereof.
(dd) "Summary of Rights" shall have the meaning set
forth in Section 3 hereof.
(ee) "Trading Day" shall have the meaning set forth
in Section 11(d)(i) hereof.
Section 2. Appointment of Rights Agent. The Company
hereby appoints the Rights Agent to act as agent for the
Company in accordance with the terms and conditions hereof,
and the Rights Agent hereby accepts such appointment. The
Company may from time to time appoint such co-Rights Agents
as it may deem necessary or desirable.
Section 3. Issue of Right Certificates.
(a) Until the Close of Business on the earlier of
(i) the tenth day after the Stock Acquisition Date or (ii)
the tenth Business Day (or such later date as may be
determined
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by action of the Board of Directors prior to such
time as any Person becomes an Acquiring Person) after the
date of the commencement by any Person (other than an Exempt
Person) of, or of the first public announcement of the
intention of such Person (other than an Exempt Person)
to commence, a tender or exchange offer the consummation of
which would result in any Person (other than an Exempt
Person) becoming the Beneficial Owner of shares of Common
Stock aggregating 15% or more of the Common Stock then
outstanding (the earlier of such dates being herein referred
to as the "Distribution Date"), (x) the Rights will be
evidenced (subject to the provisions of Section 3(b) hereof)
by the certificates for Common Stock registered in the names
of the holders thereof and not by separate Right
Certificates, and (y) the Rights will be transferable only in
connection with the transfer of Common Stock. 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 Stock
as of the close of business on the Distribution Date (other
than any Acquiring Person or any Associate or Affiliate of an
Acquiring Person), at the address of such holder shown on the
records of the Company, a Right Certificate, in substantially
the form of Exhibit A hereto (a "Right Certificate"),
evidencing one Right (subject to adjustment as provided
herein) for each share of Common Stock so held. As of the
Distribution Date, the Rights will be evidenced solely by
such Right Certificates.
(b) With respect to certificates for Common Stock
outstanding as of the Record Date, until the Distribution
Date, the Rights will be evidenced by such certificates
registered in the names of the holders thereof together with
the summary of rights (the "Summary of Rights") heretofore
distributed to each record holder of Common Stock as of the
Close of Business on the Record Date (other than any
Acquiring Person or any Associate or Affiliate of any
Acquiring Person), at the address of such holder shown on the
records of the Company. Until the Distribution Date (or, if
earlier, the Expiration Date), the surrender for transfer of
any certificate for Common Stock outstanding on the Record
Date, with or without a copy of such Summary of Rights, shall
also constitute the transfer of the Rights associated with
the Common Stock represented thereby.
(c) Rights shall be issued in respect of all shares
of Common Stock issued or disposed of (including, without
limitation, upon disposition of Common Stock out of treasury
stock or issuance or reissuance of Common Stock out of
authorized but unissued shares) after the Record Date but
prior to the earlier of the Distribution Date and the
Expiration Date, or in certain circumstances provided in
Section 22 hereof, after the Distribution Date. Certificates
issued for Common Stock (including, without limitation, upon
transfer of outstanding Common Stock, disposition of Common
Stock out of treasury stock or issuance or reissuance of
Common Stock out of authorized but unissued shares) after the
Record Date but prior to the earlier of the Distribution Date
and the Expiration Date, or in certain circumstances provided
in Section 22 hereof, after the Distribution 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 the Rights Agreement between
Xxxxxxxx Metals Company and ChaseMellon
Shareholder Services,
7
L.L.C., dated as of December 1, 1997 (as
amended from time to time, the "Rights Agreement"),
the terms of which are hereby incorporated herein
by reference and a copy of which is on file at
the principal offices of Xxxxxxxx Metals Company.
Under certain circumstances, as set forth in
the Rights Agreement, such Rights will be
evidenced by separate certificates and will
no longer be evidenced by this certificate.
The Rights will expire at the close of
business on December 1, 2007 unless exercised
or redeemed prior thereto. Xxxxxxxx Metals
Company will mail to the holder of this
certificate a copy of the Rights Agreement,
as in effect on the date of mailing, without
charge promptly after receipt of a written
request therefor. Under certain
circumstances set forth in the Rights
Agreement, Rights issued to, or held by, any
Person who is, was or becomes an Acquiring
Person or any Affiliate or Associate thereof
(as such terms are defined in the Rights
Agreement), whether currently held by or on
behalf of such Person or by any subsequent
holder, may become null and void.
With respect to such certificates containing the foregoing
legend, until the Distribution Date the Rights associated
with the Common Stock represented by such certificates shall
be evidenced by such certificates alone, and the surrender
for transfer of any such certificate, except as otherwise
provided herein, shall also constitute the transfer of the
Rights associated with the Common Stock represented thereby.
In the event that the Company purchases or otherwise acquires
any Common Stock after the Record Date but prior to the
Distribution Date, any Rights associated with such Common
Stock shall be deemed canceled and retired so that the
Company shall not be entitled to exercise any Rights
associated with the Common Stock which are no longer
outstanding.
Notwithstanding this paragraph (c), the omission of a
legend shall not affect the enforceability of any part of
this Agreement or the rights of any holder of the Rights.
Section 4. Form of Right Certificates. The Right
Certificates (and the forms of election to purchase shares
and of assignment to be printed on the reverse thereof) shall
be substantially in the form set forth in Exhibit A hereto
and may have such marks of identification or designation and
such legends, summaries or endorsements printed thereon as
the Company may deem appropriate and as are not inconsistent
with the provisions of this Agreement, 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 or interdealer quotation
system on which the Rights may from time to time be listed or
quoted, or to conform to usage. Subject to the provisions of
this Agreement, the Right Certificates shall entitle the
holders thereof to purchase such number of one one-hundredths
of a share of Preferred Stock as shall be set forth therein
at the price per one one-hundredth of a share of Preferred
Stock set forth therein (the "Purchase Price"), but the
number of such one one-hundredths of a share of Preferred
Stock and the Purchase Price shall be subject to adjustment
as provided herein.
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Section 5. Countersignature and Registration.
(a) The Right Certificates shall be executed on
behalf of the Company by its Chairman of the Board, any Vice
Chairman of the Board, its President or any 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 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.
(b) Following the Distribution Date, the Rights
Agent will keep or cause to be kept, at an office or agency
designated for such purpose, 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.
(a) Subject to the provisions of this Agreement, at
any time after the Distribution Date and prior to the
Expiration Date, any Right Certificate or Right Certificates
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-
hundredths of a share of Preferred Stock as the Right
Certificate or Right Certificates surrendered then entitled
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 surrender the Right
Certificate or Right Certificates to be transferred, split
up, combined or exchanged at the office or agency of the
Rights Agent designated for such purpose. 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.
(b) Subject to the provisions of this Agreement, at
any time after the Distribution Date and prior to the
Expiration Date, 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
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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, 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) Except as otherwise provided herein, the Rights
shall become exercisable on the Distribution Date, and
thereafter the registered holder of any Right Certificate
may, subject to Section 11(a)(ii) hereof and except as
otherwise provided herein, exercise the Rights evidenced
thereby in whole or in part upon surrender of the Right
Certificate, with the form of election to purchase on the
reverse side thereof duly executed, to the Rights Agent at
the office or agency of the Rights Agent designated for such
purpose, together with payment of the aggregate Purchase
Price with respect to the total number of one one-hundredths
of a share of Preferred Stock (or other securities, cash or
other assets, as the case may be) as to which the Rights are
exercised, at any time which is both after the Distribution
Date and prior to the time (the "Expiration Date") that is
the earliest of (i) the Close of Business on December 1, 2007
(the "Final Expiration Date"), (ii) the time at which the
Rights are redeemed as provided in Section 23 hereof (the
"Redemption Date") or (iii) the time at which such Rights are
exchanged as provided in Section 24 hereof.
(b) The Purchase Price shall be initially $300 for
each one one-hundredth of a share of Preferred Stock
purchasable upon the exercise of a Right. The Purchase Price
and the number of one one-hundredths of a share of Preferred
Stock or other securities or property to be acquired upon
exercise of a Right shall be subject to adjustment from time
to time as provided in Sections 11 and 13 hereof and shall be
payable in lawful money of the United States of America in
accordance with paragraph (c) of this Section 7.
(c) Except as otherwise provided herein, upon
receipt of a Right Certificate representing exercisable
Rights, with the form of election to purchase duly executed,
accompanied by payment of the aggregate Purchase Price for
the shares of Preferred Stock to be purchased and an amount
equal to any applicable transfer tax required to be paid by
the holder of such Right Certificate in accordance with
Section 9 hereof, in cash or 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 Stock, or make
available if the Rights Agent is the transfer agent for the
Preferred Stock, certificates for the number of shares of
Preferred Stock to be purchased, and the Company hereby
irrevocably authorizes its transfer agent to comply with all
such requests, or (B) requisition from a depositary agent
appointed by the Company depositary receipts representing
interests in such number of one one-hundredths of a share of
Preferred Stock as are to be purchased (in which case
certificates for the Preferred Stock represented by such
receipts shall be deposited by the transfer agent with the
depositary agent), and the Company hereby directs any such
depositary agent to comply with such request, (ii) when
appropriate, requisition from the Company the amount of cash
to be paid in lieu of issuance of fractional shares in
accordance
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with Section 14 hereof, (iii) promptly after
receipt of such certificates or depositary receipts, cause
the same to be delivered to or upon the order of the
registered holder of such Right Certificate, registered
in such name or names as may be designated by such holder
and (iv) when appropriate, after receipt, promptly deliver
such cash to or upon the order of the registered holder of
such Right Certificate.
(d) Except as otherwise provided herein, in case the
registered holder of any Right Certificate shall exercise
less than all of the Rights evidenced thereby, a new Right
Certificate evidencing Rights equivalent to the exercisable
Rights remaining unexercised shall be issued by the Rights
Agent to the registered holder of such Right Certificate or
to his duly authorized assigns, subject to the provisions of
Section 14 hereof.
(e) Notwithstanding anything in this Agreement to
the contrary, neither the Rights Agent nor the Company shall
be obligated to undertake any action with respect to a
registered holder of Rights upon the occurrence of any
purported transfer or exercise of Rights pursuant to Section
6 hereof or this Section 7 unless such registered holder
shall have (i) completed and signed the certificate contained
in the form of assignment or form of election to purchase set
forth on the reverse side of the Rights Certificate
surrendered for such transfer or exercise and (ii) provided
such additional evidence of the identity of the Beneficial
Owner (or former Beneficial Owner) thereof as the Company
shall reasonably request.
Section 8. Cancellation and Destruction of Right
Certificates. All Right Certificates surrendered for the
purpose of exercise, transfer, split up, combination or
exchange shall, if surrendered to the 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 other
Right Certificate 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 Shares of Preferred
Stock.
(a) The Company covenants and agrees that it will
cause to be reserved and kept available out of its authorized
and unissued shares of Preferred Stock or any shares of
Preferred Stock held in its treasury, the number of shares of
Preferred Stock that will be sufficient to permit the
exercise in full of all outstanding Rights.
(b) So long as the shares of Preferred Stock
issuable upon the exercise of Rights may be listed or
admitted to trading on any national securities exchange, or
quoted on NASDAQ, the Company shall use its best efforts to
cause, from and after such time as the Rights become
exercisable, all shares reserved for such issuance to be
listed or admitted to trading on such exchange, or quoted on
NASDAQ, upon official notice of issuance upon such exercise.
11
(c) From and after such time as the Rights become
exercisable, the Company shall use its best efforts, if then
necessary to permit the issuance of shares of Preferred Stock
upon the exercise of Rights, to register and qualify such
shares of Preferred Stock under the Securities Act and any
applicable state securities or "Blue Sky" laws (to the extent
exemptions therefrom are not available), cause such
registration statement and qualifications to become effective
as soon as possible after such filing and keep such
registration and qualifications effective until the earlier
of the date as of which the Rights are no longer exercisable
for such securities and the Expiration Date. The Company may
temporarily suspend, for a period of time not to exceed 90
days, the exercisability of the Rights in order to prepare
and file a registration statement under the Securities Act
and permit it to become effective. Upon any such suspension,
the Company shall issue a public announcement stating that
the exercisability of the Rights has been temporarily
suspended, as well as a public announcement at such time as
the suspension is no longer in effect. Notwithstanding any
provision of this Agreement to the contrary, the Rights shall
not be exercisable in any jurisdiction unless the requisite
qualification in such jurisdiction shall have been obtained
and until a registration statement under the Securities Act
shall have been declared effective, unless an exemption
therefrom is available.
(d) The Company covenants and agrees that it will
take all such action as may be necessary to ensure that all
shares of Preferred Stock delivered upon exercise of Rights
shall, at the time of delivery of the certificates therefor
(subject to payment of the Purchase Price), be duly and
validly authorized and issued and fully paid and
nonassessable shares.
(e) The Company further covenants and agrees that it
will pay when due and payable any and all federal and state
transfer taxes and charges which may be payable in respect of
the issuance or delivery of the Right Certificates or of any
shares of Preferred Stock upon the exercise of Rights. The
Company shall not, however, be required to pay any transfer
tax which may be payable in respect of any transfer or
delivery of Right Certificates to a Person other than, or the
issuance or delivery of certificates or depositary receipts
for the Preferred Stock in a name other than that of, the
registered holder of the Right Certificate evidencing Rights
surrendered for exercise or to issue or deliver any
certificates or depositary receipts for Preferred Stock upon
the exercise of any Rights until any such tax shall have been
paid (any such tax being payable by that holder of such Right
Certificate at the time of surrender) or until it has been
established to the Company's reasonable satisfaction that no
such tax is due.
Section 10. Preferred Stock Record Date. Each
Person in whose name any certificate for Preferred Stock is
issued upon the exercise of Rights shall for all purposes be
deemed to have become the holder of record of the shares of
Preferred Stock 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 Stock 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 Stock
12
transfer books of the Company are open. Prior to the exercise
of the Rights evidenced thereby, the holder of a Right
Certificate shall not be entitled to any rights of a holder
of Preferred Stock for which the Rights shall be exercisable,
including, without limitation, the right to vote or to receive
dividends or other distributions, and shall not be entitled to
receive any notice of any proceedings of the Company, except
as provided herein.
Section 11. Adjustment of Purchase Price, Number and
Kind of Shares and Number of Rights. The Purchase Price, the
number of shares of Preferred Stock or other securities or
property purchasable upon exercise of each Right and the
number of Rights outstanding are subject to adjustment from
time to time as provided in this Section 11.
(a)(i) In the event the Company shall at any time
after the date of this Agreement (A) declare and pay a
dividend on the Preferred Stock payable in shares of
Preferred Stock, (B) subdivide the outstanding Preferred
Stock, (C) combine the outstanding Preferred Stock into a
smaller number of shares of Preferred Stock or (D) issue any
shares of its capital stock in a reclassification of the
Preferred Stock (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 number and
kind of shares of capital stock issuable upon exercise of a
Right as of the record date for such dividend or the
effective date of such subdivision, combination or
reclassification shall be proportionately adjusted so that
the holder of any Right exercised after such time shall be
entitled to receive the aggregate number and kind of shares
of capital stock which, if such Right had been exercised
immediately prior to such date and at a time when the
Preferred Stock transfer books of the Company were open, the
holder would have owned upon such exercise and been entitled
to receive by virtue of such dividend, subdivision,
combination or reclassification.
(ii) Subject to Section 24 of this Agreement, in the
event any Person becomes an Acquiring Person (the first
occurrence of such event being referred to hereinafter as the
"Flip-In Event"), then (A) the Purchase Price shall be
adjusted to be the Purchase Price in effect immediately prior
to the Flip-In Event multiplied by the number of one one-
hundredths of a share of Preferred Stock for which a Right
was exercisable immediately prior to such Flip-In Event,
whether or not such Right was then exercisable, and (B) each
holder of a Right, except as otherwise provided in this
Section 11(a)(ii) and Section 11(a)(iii) hereof, shall
thereafter have the right to receive, upon exercise thereof
at a price equal to the Purchase Price (as so adjusted), in
accordance with the terms of this Agreement and in lieu of
shares of Preferred Stock, such number of shares of Common
Stock as shall equal the result obtained by dividing the
Purchase Price (as so adjusted) by 50% of the current per
share market price of the Common Stock (determined pursuant
to Section 11(d) hereof) on the date of such Flip-In Event;
provided, however, that the Purchase Price (as so adjusted)
and the number of shares of Common Stock so receivable upon
exercise of a Right shall, following the Flip-In Event, be
subject to further adjustment as appropriate in accordance
with Section 11(f) hereof. Notwithstanding anything in this
Agreement to the contrary, however, from and after the Flip-
In Event, any Rights that are beneficially owned by (x) any
Acquiring Person (or any Affiliate or Associate of any
Acquiring Person), (y) a transferee of any Acquiring Person
(or any such Affiliate or Associate) who becomes a transferee
after the Flip-In Event or (z) a transferee of any Acquiring
Person (or any such Affiliate or Associate) who became a
transferee prior to or
13
concurrently with the Flip-In Event pursuant to either
(I) a transfer from the Acquiring Person to holders of
its equity securities or to any Person with whom it has
any continuing agreement, arrangement or understanding
regarding the transferred Rights or (II) a transfer
which the Board of Directors has determined is part
of a plan, arrangement or understanding which has the purpose
or effect of avoiding the provisions of this paragraph, and
subsequent transferees of such Persons, shall be void without
any further action and any holder of such Rights shall
thereafter have no rights whatsoever with respect to such
Rights under any provision of this Agreement. The Company
shall use all reasonable efforts to ensure that the
provisions of this Section 11(a)(ii) are complied with, but
shall have no liability to any holder of Right Certificates
or other Person as a result of its failure to make any
determinations with respect to an Acquiring Person or its
Affiliates, Associates or transferees hereunder. From and
after the Flip-In Event, no Right Certificate shall be issued
pursuant to Section 3 or Section 6 hereof that represents
Rights that are or have become void pursuant to the
provisions of this paragraph, and any Right Certificate
delivered to the Rights Agent that represents Rights that are
or have become void pursuant to the provisions of this
paragraph shall be canceled. From and after the occurrence
of an event specified in Section 13(a) hereof, any Rights
that theretofore have not been exercised pursuant to this
Section 11(a)(ii) shall thereafter be exercisable only in
accordance with Section 13 and not pursuant to this Section
11(a)(ii).
(iii) The Company may at its option substitute
for a share of Common Stock issuable upon the exercise of
Rights in accordance with the foregoing subparagraph (ii) a
number of shares of Preferred Stock or fraction thereof such
that the current per share market price of one share of
Preferred Stock multiplied by such number or fraction is
equal to the current per share market price of one share of
Common Stock. In the event that there shall not be
sufficient shares of Common Stock issued but not outstanding
or authorized but unissued to permit the exercise in full of
the Rights in accordance with the foregoing subparagraph
(ii), the Board of Directors shall, to the extent permitted
by applicable law and any material agreements then in effect
to which the Company is a party (A) determine the excess
(such excess, the "Spread") of (1) the value of the shares of
Common Stock issuable upon the exercise of a Right in
accordance with the foregoing subparagraph (ii) (the "Current
Value") over (2) the Purchase Price (as adjusted in
accordance with the foregoing subparagraph (ii)), and (B)
with respect to each Right (other than Rights which have
become void pursuant to the foregoing subparagraph (ii)),
make adequate provision to substitute for the shares of
Common Stock issuable in accordance with the foregoing
subparagraph (ii) upon exercise of the Right and payment of
the Purchase Price (as adjusted in accordance therewith), (1)
cash, (2) a reduction in such Purchase Price, (3) shares of
Preferred Stock or other equity securities of the Company
(including, without limitation, shares or fractions of shares
of preferred stock which, by virtue of having dividend,
voting and liquidation rights substantially comparable to
those of the shares of Common Stock, are deemed in good faith
by the Board of Directors to have substantially the same
value as the shares of Common Stock (such shares of Preferred
Stock and shares or fractions of shares of preferred stock
are hereinafter referred to as "Common Stock Equivalents")),
(4) debt securities of the Company, (5) other assets, or (6)
any combination of the foregoing, having a value which, when
added to the value of the shares of Common Stock issued upon
exercise of such Right, shall have an aggregate value equal
to the Current Value (less the amount of any reduction in
such Purchase Price), where such aggregate value has been
determined by the Board of Directors upon the advice of a
nationally
14
recognized investment banking firm selected in good
faith by the Board of Directors; provided, however, that
if the Company shall not make adequate provision to deliver
value pursuant to clause (B) above within thirty (30) days
following the Flip-In Event (the "Section 11(a) (ii) Trigger
Date"), then the Company shall be obligated to deliver, to
the extent permitted by applicable law and any material
agreements then in effect to which the Company is a party,
upon the surrender for exercise of a Right and without
requiring payment of such Purchase Price, shares of Common
Stock (to the extent available), and then, if necessary, such
number or fractions of shares of Preferred Stock (to the
extent available) and then, if necessary, cash, which shares
and/or cash have an aggregate value equal to the Spread. If,
upon the occurrence of the Flip-In Event, the Board of
Directors shall determine in good faith that it is likely
that sufficient additional shares of Common Stock could be
authorized for issuance upon exercise in full of the Rights,
then, if the Board of Directors so elects, the thirty (30)
day period set forth above may be extended to the extent
necessary, but not more than ninety (90) days after the
Section 11(a) (ii) Trigger Date, in order that the Company
may seek stockholder approval for the authorization of such
additional shares (such thirty (30) day period, as it may be
extended, is herein called the "Substitution Period"). To
the extent that the Company determines that some action need
be taken pursuant to the second and/or third sentence of this
Section 11(a)(iii), the Company (x) shall provide, subject to
Section 11(a)(ii) hereof and the last sentence of this
Section 11(a)(iii) hereof, that such action shall apply
uniformly to all outstanding Rights and (y) may suspend the
exercisability of the Rights until the expiration of the
Substitution Period in order to seek any authorization of
additional shares and/or to decide the appropriate form of
distribution to be made pursuant to such second sentence and
to determine the value thereof. In the event of any such
suspension, the Company shall issue a public announcement
stating that the exercisability of the Rights has been
temporarily suspended, as well as a public announcement at
such time as the suspension is no longer in effect. For
purposes of this Section 11(a)(iii), the value of the shares
of Common Stock shall be the current per share market price
(as determined pursuant to Section 11(d)(i)) on the Section
11(a)(ii) Trigger Date and the per share or fractional value
of any "Common Stock Equivalent" shall be deemed to equal the
current per share market price of the Common Stock. The
Board of Directors of the Company may, but shall not be
required to, establish procedures to allocate the right to
receive shares of Common Stock upon the exercise of the
Rights among holders of Rights pursuant to this Section
11(a)(iii).
(b) In case the Company shall fix a record date for
the issuance of rights, options or warrants to all holders of
Preferred Stock entitling them (for a period expiring within
45 calendar days after such record date) to subscribe for or
purchase Preferred Stock (or shares having the same rights,
privileges and preferences as the Preferred Stock
("Equivalent Preferred Shares")) or securities convertible
into Preferred Stock or Equivalent Preferred Shares at a
price per share of Preferred Stock or Equivalent Preferred
Shares (or having a conversion price per share, if a security
convertible into shares of Preferred Stock or Equivalent
Preferred Shares) less than the then current per share market
price of the Preferred Stock (determined pursuant to Section
11(d) hereof) 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 shares of Preferred Stock and Equivalent
Preferred Shares outstanding on such record date plus the
number of shares of Preferred Stock and Equivalent Preferred
Shares
15
which the aggregate offering price of the total number of
shares of Preferred Stock 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 shares of
Preferred Stock and Equivalent Preferred Shares outstanding
on such record date plus the number of additional shares of
Preferred Stock 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 shares of capital
stock of the Company 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. Shares of Preferred Stock and Equivalent
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 adjustment shall be made
successively whenever such a record date is fixed; and in the
event that such rights, options or warrants are not so
issued, the Purchase Price shall be adjusted to be the
Purchase Price which would then be in effect if such record
date had not been fixed.
(c) In case the Company shall fix a record date for
the making of a distribution to all holders of the Preferred
Stock (including any such distribution made in connection
with a consolidation or merger in which the Company is the
continuing or surviving corporation) of evidences of
indebtedness or assets (other than a regular quarterly cash
dividend or a dividend payable in Preferred Stock) 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 Stock
(determined pursuant to Section 11(d) hereof) 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 share of Preferred
Stock, and the denominator of which shall be such current per
share market price (determined pursuant to Section 11(d)
hereof) of the Preferred Stock; provided, however, that in no
event shall the consideration to be paid upon the exercise of
one Right be less than the aggregate par value of the shares
of capital stock of the Company to be issued upon exercise of
one Right. Such adjustments shall be made successively
whenever such a record date is fixed; and in the event that
such distribution is not so made, the Purchase Price shall
again be adjusted to be the Purchase Price which would then
be in effect if such record date had not been fixed.
(d)(i) Except as otherwise provided herein, for
the purpose of any computation hereunder, the Acurrent per
share market price A 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
16
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. 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 by the principal consolidated transaction reporting
system with respect to securities listed or admitted to
trading on the New York Stock Exchange or, if the Security is
not listed or admitted to trading on the New York Stock
Exchange, as reported in the principal consolidated
transaction reporting system with respect to securities
listed on the principal national securities exchange on which
the Security is listed or admitted to trading or, if the
Security is not listed or admitted to trading on any national
securities exchange, the last quoted price or, if not so
quoted, the average of the high bid and low asked prices in
the over-the-counter market, as reported by NASDAQ or such
other system then in use, or, if on any such date the
Security is not quoted by any such organization, the average
of the closing bid and asked prices as furnished by a
professional market maker making a market in the Security
selected by the Board of Directors of the 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.
(ii) For the purpose of any computation hereunder, if
the Preferred Stock is publicly traded, the "current per
share market price" of the Preferred Stock shall be
determined in accordance with the method set forth in Section
11(d)(i). If the Preferred Stock is not publicly traded but
the Common Stock is publicly traded, the "current per share
market price" of the Preferred Stock shall be conclusively
deemed to be the current per share market price of the Common
Stock as determined pursuant to Section 11(d)(i) multiplied
by the then applicable Adjustment Number (as defined in and
determined in accordance with the Certificate of Designation
for the Preferred Stock). If neither the Common Stock nor
the Preferred Stock is publicly traded, "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 Section
11(e) are not required to be made shall be carried forward
and taken into account in any subsequent adjustment. All
calculations under this Section 11 shall be made to the
nearest cent or to the nearest one hundred-hundredth of a
share of Preferred Stock or one-hundredth of a share of
Common Stock or other share or security as the case may be.
Notwithstanding the first sentence of this Section 11(e), any
adjustment required by this Section 11 shall be made no later
than the earlier of (i) three years from the date of the
transaction which requires such adjustment or (ii) the
Expiration Date.
17
(f) If as a result of an adjustment made pursuant to
Section 11(a) hereof, the holder of any Right thereafter
exercised shall become entitled to receive any shares of
capital stock of the Company other than the Preferred Stock,
thereafter the Purchase Price and the number of such other
shares so receivable upon exercise of a Right shall be
subject to adjustment from time to time in a manner and on
terms as nearly equivalent as practicable to the provisions
with respect to the Preferred Stock contained in Sections
11(a), 11(b), 11(c), 11(e), 11(h), 11(i) and 11(m) hereof, as
applicable, and the provisions of Sections 7, 9, 10, 13 and
14 hereof with respect to the Preferred Stock 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-hundredths of
a share of Preferred Stock 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(i), upon each adjustment
of the Purchase Price as a result of the calculations made in
Sections 11(b) and 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-hundredths of a share of
Preferred Stock (calculated to the nearest one hundred-
hundredth of a share of Preferred Stock) obtained by (i)
multiplying (x) the number of one one-hundredths of a share
purchasable upon the exercise of a Right immediately prior to
such adjustment by (y) the Purchase Price in effect
immediately prior to such adjustment and (ii) dividing the
product so obtained by the Purchase Price in effect
immediately after such adjustment.
(i) The Company may elect on or after the date of
any adjustment of the Purchase Price pursuant to Sections
11(b) or 11(c) hereof to adjust the number of Rights, in
substitution for any adjustment in the number of one one-
hundredths of a share of Preferred Stock 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-hundredths of a share of Preferred
Stock 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-hundredth) 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
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 day
thereafter, but, if the Right Certificates have been issued,
shall be at least 10 days later than the date of the public
announcement. If Right Certificates have been issued, upon
each adjustment of the number of Rights pursuant to this
Section 11(i), the Company may, 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
18
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-hundredths of a share
of Preferred Stock issuable upon the exercise of a Right, the
Right Certificates theretofore and thereafter issued may
continue to express the Purchase Price and the number of one
one-hundredths of a share of Preferred Stock which were
expressed in the initial Right Certificates issued hereunder.
(k) Before taking any action that would cause an
adjustment reducing the Purchase Price below the then par
value, if any, of the fraction of Preferred Stock or other
shares of capital stock issuable upon exercise of a Right,
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 shares of Preferred Stock or other such 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
issuing to the holder of any Right exercised after such
record date the Preferred Stock and other capital stock or
securities of the Company, if any, issuable upon such
exercise over and above the Preferred Stock and other capital
stock or securities of the Company, if any, issuable upon
such exercise on the basis of the Purchase Price in effect
prior to such adjustment; provided, however, that the Company
shall deliver to such holder a due xxxx or other appropriate
instrument evidencing such holder's right to receive such
additional 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
adjustments in the Purchase Price, in addition to those
adjustments expressly required by this Section 11, as and to
the extent that it in its sole discretion shall determine to
be advisable in order that any consolidation or subdivision
of the Preferred Stock, issuance wholly for cash of any
shares of Preferred Stock at less than the current market
price, issuance wholly for cash of Preferred Stock or
securities which by their terms are convertible into or
exchangeable for Preferred Stock, dividends on Preferred
Stock payable in shares of Preferred Stock or issuance of
rights, options or warrants referred to hereinabove in
Section 11(b), hereafter made by the Company to holders of
its Preferred Stock shall not be taxable to such
stockholders.
(n) Anything in this Agreement to the contrary
notwithstanding, in the event that at any time after the date
of this Agreement and prior to the Distribution Date, the
Company shall (i) declare and pay any dividend on the Common
Stock payable in Common Stock or (ii) effect a subdivision,
combination or consolidation of the Common Stock (by
19
reclassification or otherwise than by payment of a dividend
payable in Common Stock) into a greater or lesser number of
shares of Common Stock, then, in each such case, the number
of Rights associated with each share of Common Stock then
outstanding, or issued or delivered thereafter, shall be
proportionately adjusted so that the number of Rights
thereafter associated with each share of Common Stock
following any such event shall equal the result obtained by
multiplying the number of Rights associated with each share
of Common Stock immediately prior to such event by a fraction
the numerator of which shall be the total number of shares of
Common Stock outstanding immediately prior to the occurrence
of the event and the denominator of which shall be the total
number of shares of Common Stock outstanding immediately
following the occurrence of such event.
(o) The Company agrees that, after the earlier of
the Distribution Date or the Stock Acquisition Date, it will
not, except as permitted by Sections 23, 24 or 27 hereof,
take (or permit any Subsidiary to take) any action if at the
time such action is taken it is reasonably foreseeable that
such action will diminish substantially or eliminate the
benefits intended to be afforded by the Rights.
Section 12. Certificate of Adjusted Purchase Price
or Number of Shares. Whenever an adjustment is made as
provided in Section 11 or 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 Stock and the Preferred Stock 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 (if so required under Section 25 hereof).
The Rights Agent shall be fully protected in relying on any
such certificate and on any adjustment therein contained and
shall not be deemed to have knowledge of any such adjustment
unless and until it shall have received such certificate.
Section 13. Consolidation, Merger or Sale or
Transfer of Assets or Earning Power.
20
(a) In the event, directly or indirectly, at any
time after the Flip-In Event (i) the Company shall
consolidate with or shall merge into any other Person, (ii)
any Person shall merge with and into the Company and the
Company shall be the continuing or surviving corporation of
such merger and, in connection with such merger, all or part
of the Common Stock shall be changed into or exchanged for
stock or other securities of any other Person (or of 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 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 other Person (other
than the Company or one or more wholly-owned Subsidiaries of
the Company), then upon the first occurrence of such event,
proper provision shall be made so that: (A) each holder of a
Right (other than Rights which have become void pursuant to
Section 11(a)(ii) hereof) shall thereafter have the right to
receive, upon the exercise thereof at the Purchase Price (as
theretofore adjusted in accordance with Section 11(a)(ii)
hereof), in accordance with the terms of this Agreement and
in lieu of shares of Preferred Stock or Common Stock of the
Company, such number of validly authorized and issued, fully
paid, non-assessable and freely tradeable shares of Common
Stock of the Principal Party (as such term is hereinafter
defined), not subject to any liens, encumbrances, rights of
first refusal or other adverse claims, as shall equal the
result obtained by dividing the Purchase Price (as
theretofore adjusted in accordance with Section 11(a)(ii)
hereof) by 50% of the current per share market price of the
Common Stock of such Principal Party (determined pursuant to
Section 11(d) hereof) on the date of consummation of such
consolidation, merger, sale or transfer; provided, however,
that the Purchase Price (as theretofore adjusted in
accordance with Section 11(a)(ii) hereof) and the number of
shares of Common Stock of such Principal Party so receivable
upon exercise of a Right shall be subject to further
adjustment as appropriate in accordance with Section 11(f)
hereof to reflect any events occurring in respect of the
Common Stock of such Principal Party after the occurrence of
such consolidation, merger, sale or transfer; (B) such
Principal Party shall thereafter be liable for, and shall
assume, by virtue of such consolidation, merger, sale or
transfer, all the obligations and duties of the Company
pursuant to this Agreement; (C) the term "Company" shall
thereafter be deemed to refer to such Principal Party; and
(D) such Principal Party shall take such steps (including,
but not limited to, the reservation of a sufficient number of
its shares of Common Stock in accordance with Section 9
hereof) in connection with such consummation of any such
transaction as may be necessary to assure that the provisions
hereof shall thereafter be applicable, as nearly as
reasonably may be, in relation to the shares of its Common
Stock thereafter deliverable upon the exercise of the Rights;
provided that, upon the subsequent occurrence of any
consolidation, merger, sale or transfer of assets or other
extraordinary transaction in respect of such Principal Party,
each holder of a Right shall thereupon be entitled to
receive, upon exercise of a Right and payment of the Purchase
Price as provided in this Section 13(a), such cash, shares,
rights, warrants and other property which such holder would
have been entitled to receive had such holder, at the time of
such transaction, owned the Common Stock of the Principal
Party receivable upon the exercise of a Right pursuant to
this Section 13(a), and such Principal Party shall take such
steps (including, but not limited to, reservation of shares
of stock) as may be necessary to permit the subsequent
exercise of the Rights in accordance with the terms hereof
for such cash, shares, rights, warrants and other property.
21
(b) "Principal Party" shall mean:
(i) in the case of any transaction described in
(i) or (ii) of the first sentence of Section 13(a) hereof:
(A) the Person that is the issuer of the securities into
which the shares of Common Stock are converted in such merger
or consolidation, or, if there is more than one such issuer,
the issuer the shares of Common Stock of which have the
greatest aggregate market value of shares outstanding, or (B)
if no securities are so issued, (x) the Person that is the
other party to the merger, if such Person survives said
merger, or, if there is more than one such Person, the Person
the shares of Common Stock of which have the greatest
aggregate market value of shares outstanding or (y) if the
Person that is the other party to the merger does not survive
the merger, the Person that does survive the merger
(including the Company if it survives) or (z) the Person
resulting from the consolidation; and
(ii) in the case of any transaction described in
(iii) of the first sentence of Section 13(a) hereof, the
Person that is the party receiving the greatest portion of
the assets or earning power transferred pursuant to such
transaction or transactions, or, if each Person that is a
party to such transaction or transactions receives the same
portion of the assets or earning power so transferred or if
the Person receiving the greatest portion of the assets or
earning power cannot be determined, whichever of such Persons
is the issuer of Common Stock having the greatest aggregate
market value of shares outstanding;
provided, however, that in any such case described in the
foregoing clause (b)(i) or (b)(ii), if the Common Stock of
such Person is not at such time or has not been continuously
over the preceding 12-month period registered under Section
12 of the Exchange Act, then (1) if such Person is a direct
or indirect Subsidiary of another Person the Common Stock of
which is and has been so registered, the term "Principal
Party" shall refer to such other Person, or (2) if such
Person is a Subsidiary, directly or indirectly, of more than
one Person, the Common Stock of all of which is and has been
so registered, the term "Principal Party" shall refer to
whichever of such Persons is the issuer of Common Stock
having the greatest aggregate market value of shares
outstanding, or (3) if such Person is owned, directly or
indirectly, by a joint venture formed by two or more Persons
that are not owned, directly or indirectly, by the same
Person, the rules set forth in clauses (1) and (2) above
shall apply to each of the owners having an interest in the
venture as if the Person owned by the joint venture was a
Subsidiary of both or all of such joint venturers, and the
Principal Party in each such case shall bear the obligations
set forth in this Section 13 in the same ratio as its
interest in such Person bears to the total of such interests.
(c) The Company shall not consummate any
consolidation, merger, sale or transfer referred to in
Section 13(a) hereof unless prior thereto the Company and the
Principal Party involved therein shall have executed and
delivered to the Rights Agent an agreement confirming that
the requirements of Sections 13(a) and (b) hereof shall
promptly be performed in accordance with their terms and that
such consolidation, merger, sale or transfer of assets shall
not result in a default by the Principal Party under this
Agreement as the same shall have been assumed by the
Principal Party pursuant to Sections 13(a) and (b) hereof and
providing that, as soon as practicable after executing such
agreement pursuant to this Section 13, the Principal Party
will:
22
(i) prepare and file a registration statement
under the Securities Act, if necessary, with respect to the
Rights and the securities purchasable upon exercise of the
Rights on an appropriate form, use its best efforts to cause
such registration statement to become effective as soon as
practicable after such filing and use its best efforts to
cause such registration statement to remain effective (with a
prospectus at all times meeting the requirements of the
Securities Act) until the Expiration Date and similarly
comply with applicable state securities laws;
(ii) use its best efforts, if the Common Stock
of the Principal Party shall be listed or admitted to trading
on the New York Stock Exchange or on another national
securities exchange, to list or admit to trading (or continue
the listing of) the Rights and the securities purchasable
upon exercise of the Rights on the New York Stock Exchange or
such securities exchange, or, if the Common Stock of the
Principal Party shall not be listed or admitted to trading on
the New York Stock Exchange or a national securities
exchange, to cause the Rights and the securities receivable
upon exercise of the Rights to be authorized for quotation on
NASDAQ or on such other system then in use;
(iii) deliver to holders of the Rights
historical financial statements for the Principal Party which
comply in all respects with the requirements for registration
on Form 10 (or any successor form) under the Exchange Act;
and
(iv) obtain waivers of any rights of first
refusal or preemptive rights in respect of the Common Stock
of the Principal Party subject to purchase upon exercise of
outstanding Rights.
(d) In case the Principal Party has provision in any
of its authorized securities or in its certificate of
incorporation or by-laws or other instrument governing its
affairs, which provision would have the effect of (i) causing
such Principal Party to issue (other than to holders of
Rights pursuant to this Section 13), in connection with, or
as a consequence of, the consummation of a transaction
referred to in this Section 13, shares of Common Stock or
Common Stock Equivalents of such Principal Party at less than
the then current market price per share thereof (determined
pursuant to Section 11(d) hereof) or securities exercisable
for, or convertible into, Common Stock or Common Stock
Equivalents of such Principal Party at less than such then
current market price, or (ii) providing for any special
payment, tax or similar provision in connection with the
issuance of the Common Stock of such Principal Party pursuant
to the provisions of Section 13, then, in such event, the
Company hereby agrees with each holder of Rights that it
shall not consummate any such transaction unless prior
thereto the Company and such Principal Party shall have
executed and delivered to the Rights Agent a supplemental
agreement providing that the provision in question of such
Principal Party shall have been canceled, waived or amended,
or that the authorized securities shall be redeemed, so that
the applicable provision will have no effect in connection
with, or as a consequence of, the consummation of the
proposed transaction.
(e) The Company covenants and agrees that it shall
not, at any time after the Flip-In Event, enter into any
transaction of the type described in clauses (i) through
(iii) of
23
Section 13(a) hereof if (i) at the time of or immediately
after such consolidation, merger, sale, transfer or other
transaction there are any rights, warrants or other
instruments or securities outstanding or agreements in effect
which would substantially diminish or otherwise eliminate the
benefits intended to be afforded by the Rights, (ii) prior
to, simultaneously with or immediately after such
consolidation, merger, sale, transfer or other transaction,
the stockholders of the Person who constitutes, or would
constitute, the Principal Party for purposes of Section 13(b)
hereof shall have received a distribution of Rights
previously owned by such Person or any of its Affiliates or
Associates or (iii) the form or nature of organization of the
Principal Party would preclude or limit the exercisability of
the Rights.
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 (except prior to the Distribution
Date in accordance with Section 11(n) hereof). In lieu of
such fractional Rights, there shall be paid to the registered
holders of the Right Certificates with regard to which such
fractional Rights would otherwise be issuable, an amount in
cash equal to the same fraction of the current market value
of a whole Right. For the purposes of this Section 14(a),
the current market value of a whole Right shall be the
closing price of the Rights for the Trading Day immediately
prior to the date on which such fractional Rights would have
been otherwise issuable. The closing price for any day shall
be the last sale price, regular way, or, in case no such sale
takes place on such day, the average of the closing bid and
asked prices, regular way, in either case as reported in the
principal consolidated transaction reporting system with
respect to securities listed or admitted to trading on the
New York Stock Exchange or, if the Rights are not listed or
admitted to trading on the New York Stock Exchange, as
reported in the principal consolidated transaction reporting
system with respect to securities listed on the principal
national securities exchange on which the Rights are listed
or admitted to trading or, if the Rights are not listed or
admitted to trading on any national securities exchange, the
last quoted price or, if not so quoted, the average of the
high bid and low asked prices in the over-the-counter market,
as reported by NASDAQ or such other system then in use or, if
on any such date the Rights are not quoted by any such
organization, the average of the closing bid and asked prices
as furnished by a professional market maker making a market
in the Rights selected by the Board of Directors of the
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.
(b) The Company shall not be required to issue
fractions of Preferred Stock (other than fractions which are
integral multiples of one one-hundredth of a share of
Preferred Stock) or to distribute certificates which evidence
fractional shares of Preferred Stock (other than fractions
which are integral multiples of one one-hundredth of a share
of Preferred Stock) upon the exercise or exchange of Rights.
Interests in fractions of Preferred Stock in integral
multiples of one one-hundredth of a share of Preferred Stock
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, that such agreement shall provide that the holders
of such depositary receipts shall have all the rights,
privileges and preferences to which they are entitled as
beneficial owners of the Preferred Stock represented by such
24
depositary receipts. In lieu of fractional shares of
Preferred Stock that are not integral multiples of one one-
hundredth of a share of Preferred Stock, the Company shall
pay to the registered holders of Right Certificates at the
time such Rights are exercised or exchanged as herein
provided an amount in cash equal to the same fraction of the
current market value of a whole share of Preferred Stock (as
determined in accordance with Section 14(a) hereof) for the
Trading Day immediately prior to the date of such exercise or
exchange.
(c) The Company shall not be required to issue
fractions of shares of Common Stock or to distribute
certificates which evidence fractional shares of Common Stock
upon the exercise or exchange of Rights. In lieu of such
fractional shares of Common Stock, the Company shall pay to
the registered holders of the Right Certificates with regard
to which such fractional shares of Common Stock would
otherwise be issuable an amount in cash equal to the same
fraction of the current market value of a whole share of
Common Stock (as determined in accordance with Section 14(a)
hereof) for the Trading Day immediately prior to the date of
such exercise or exchange.
(d) 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 or exchange of
a Right (except as provided above).
Section 15. Rights of Action. All rights of action
in respect of this Agreement, excepting the rights of action
given to the Rights Agent under Section 18 hereof, are vested
in the respective registered holders of the Right
Certificates (and, prior to the Distribution Date, the
registered holders of the Common Stock); and any registered
holder of any Right Certificate (or, prior to the
Distribution Date, of the Common Stock), 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 Stock), on his own behalf and for his own benefit, may
enforce, and may institute and maintain any suit, action or
proceeding against the Company to enforce, or otherwise act
in respect of, his right to exercise the Rights evidenced by
such Right Certificate (or, prior to the Distribution Date,
such Common Stock) in the manner provided therein 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:
(a) prior to the Distribution Date, the Rights will
be transferable only in connection with the transfer of the
Common Stock;
(b) after the Distribution Date, the Right
Certificates are transferable only on the registry books of
the Rights Agent if surrendered at the office or agency of
the Rights Agent designated for such purpose, duly endorsed
or accompanied by a proper instrument of transfer;
25
(c) the Company and the Rights Agent may deem and
treat the Person in whose name the Right Certificate (or,
prior to the Distribution Date, the Common Stock 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 Common Stock
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; and
(d) notwithstanding anything in this Agreement to
the contrary, neither the Company nor the Rights Agent shall
have any liability to any holder of a Right or other Person
as a result of its inability to perform any of its
obligations under this Agreement by reason of any preliminary
or permanent injunction or other order, decree or ruling
issued by a court of competent jurisdiction or by a
governmental, regulatory or administrative agency or
commission, or any statute, rule, regulation or executive
order promulgated or enacted by any governmental authority,
prohibiting or otherwise restraining performance of such
obligation; provided, however, the Company must use its best
efforts to have any such order, decree or ruling lifted or
otherwise overturned as soon as possible.
Section 17. Right Certificate Holder Not Deemed a
Stockholder. No holder, as such, of any Right Certificate
shall be entitled to vote, receive dividends or be deemed for
any purpose the holder of the Preferred Stock or any other
securities of the Company which may at any time be issuable
on the exercise or exchange of the Rights represented
thereby, nor shall anything contained herein or in any Right
Certificate be construed to confer upon the holder of any
Right Certificate, as such, any of the rights of a
stockholder of the Company or any right to vote for the
election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold
consent to any corporate action, or to receive notice of
meetings or other actions affecting stockholders (except as
provided in this Agreement), or to receive dividends or
subscription rights, or otherwise, until the Rights evidenced
by such Right Certificate shall have been exercised or
exchanged in accordance with the provisions hereof.
Section 18. Concerning the Rights Agent.
(a) 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 arising therefrom, directly or indirectly.
Anything to the contrary notwithstanding, in no event shall
the Rights Agent be liable for special, indirect,
consequential loss or damage of any kind whatsoever
(including but not limited to lost profits), even if the
Rights Agent has been advised of the likelihood of such loss
or damage.
26
(b) 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 adminis
tration of this Agreement in reliance upon any Right
Certificate or certificate for the Preferred Stock or Common
Stock 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.
Section 19. Merger or Consolidation or Change of
Name of Rights Agent.
(a) 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 powers 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.
(b) 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.
27
(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 the Chairman of the Board, any Vice
Chairman of the Board, the President, any Executive Vice
President, any Senior Vice President, the Treasurer or the
Secretary of the Company and delivered to the Rights Agent;
and such certificate shall be full authorization to the
Rights Agent for any action taken or suffered in good faith
by it under the provisions of this Agreement in reliance
upon such certificate.
(c) The Rights Agent shall be liable hereunder to
the Company and any other Person only for its own negligence,
bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by
reason of any of the statements of fact or recitals contained
in this Agreement or in the Right Certificates (except its
countersignature thereof) or be required to verify the same,
but all such statements and recitals are and shall be deemed
to have been made by the 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 execu
tion 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 the Rights becoming void pursuant to
Section 11(a)(ii) hereof) or any adjustment in the terms of
the Rights provided for in Sections 3, 11, 13, 23 and 24, or
the ascertaining of the existence of facts that would require
any such change or adjustment (except with respect to the
exercise of Rights evidenced by Right Certificates after
receipt of a certificate furnished pursuant to Section 12,
describing such change or adjustment); nor shall it by any
act hereunder be deemed to make any representation or
warranty as to the authorization or reservation of any shares
of Preferred Stock or other securities to be issued pursuant
to this Agreement or any Right Certificate or as to whether
any shares of Preferred Stock or other securities 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 person
reasonably believed by the Rights Agent to be one of the
Chairman of the Board, any Vice Chairman of the Board, the
President, any Executive Vice President, any Senior Vice
President, the Treasurer or the Secretary of the Company, and
to apply to such officers for advice or instructions in
28
connection with its duties, and it shall not be liable for
any action taken or suffered by it in good faith in
accordance with instructions of any such officer or for any
delay in acting while waiting for those instructions. Any
application by the Rights Agent for written instructions from
the Company may, at the option of the Rights Agent, set forth
in writing any action proposed to be taken or omitted by the
Rights Agent under this Agreement and the date on and/or
after which such action shall be taken or such omission shall
be effective. The Rights Agent shall not be liable for any
action taken by, or omission of, the Rights Agent in
accordance with a proposal included in any such application
on or after the date specified in such application (which
date shall not be less than five Business Days after the date
any officer of the Company actually receives such application
unless any such officer shall have consented in writing to an
earlier date) unless, prior to taking any such action (or the
effective date in the case of an omission), the Rights Agent
shall have received written instructions in response to such
application specifying the action to be taken or omitted.
(h) The Rights Agent and any 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 or for any other legal entity.
(i) The Rights Agent may execute and exercise any of
the rights or powers hereby vested in it or perform any duty
hereunder either itself or by or through its attorneys or
agents, and the Rights Agent shall not be answerable or
accountable for any act, default, neglect or misconduct of
any such attorneys or agents or for any loss to the Company
resulting from any such act, default, neglect or misconduct,
provided reasonable care was exercised in the selection and
continued employment thereof.
(j) If, with respect to any Rights Certificate
surrendered to the Rights Agent for exercise or transfer, the
certificate contained in the form of assignment or the form
of election to purchase set forth on the reverse thereof, as
the case may be, has not been completed to certify the holder
is not an Acquiring Person (or an Affiliate or Associate
thereof), the Rights Agent shall not take any further action
with respect to such requested exercise or transfer without
first consulting with the Company.
(k) No provision of this Agreement shall require the
Rights Agent to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of
its duties hereunder or in the exercise of its rights if
there shall be reasonable grounds for believing that
repayment of such funds or adequate indemnification against
such risk or liability is not reasonably assured to it.
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 Stock or Preferred Stock by registered or
certified mail, and, following the Distribution Date, to the
29
holders of the Right Certificates by first-class mail. The
Company may remove the Rights Agent or any successor Rights
Agent upon 30 days' notice in writing, mailed to the Rights
Agent or successor Rights Agent, as the case may be, and to
each transfer agent of the Common Stock or Preferred Stock by
registered or certified mail, and, following the Distribution
Date, 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 the laws of any state of the United States or the
District of Columbia, in good standing, having an office in
the State of Virginia or the State of New York, 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 it hereunder, and
execute and deliver any further assurance, conveyance,
act or deed necessary for the purpose. Not later than the
effective date of any such appointment the Company shall
file notice thereof in writing with the predecessor Rights
Agent and each transfer agent of the Common Stock or
Preferred Stock, and, following the Distribution Date,
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 forms
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. In addition, in
connection with the issuance or sale of Common Stock
following the Distribution Date and prior to the Expiration
Date, the Company may with respect to shares of Common Stock
so issued or sold pursuant to (i) the exercise of stock
options, (ii) under any employee plan or arrangement, (iii)
upon the exercise, conversion or exchange of securities,
notes or debentures issued by the Company or (iv) a
contractual obligation of the Company, in each case existing
prior to the Distribution Date, issue Rights Certificates
representing the appropriate number of Rights in connection
with such issuance or sale.
Section 23. Redemption.
30
(a) The Board of Directors of the Company may, at
any time prior to the Flip-In Event, redeem all but not less
than all the then outstanding Rights at a redemption price of
$.01 per Right, appropriately adjusted to reflect any stock
split, stock dividend or similar transaction occurring in
respect of the Common Stock after the date hereof (the
redemption price being hereinafter referred to as the
"Redemption Price"). The redemption of the Rights may be
made effective at such time, on such basis and with such
conditions as the Board of Directors in its sole discretion
may establish. The Redemption Price shall be payable, at the
option of the Company, in cash, shares of Common Stock, or
such other form of consideration as the Board of Directors
shall determine.
(b) Immediately upon the action of the Board of
Directors ordering the redemption of the Rights pursuant to
paragraph (a) of this Section 23 (or at such later time as
the Board of Directors may establish for the effectiveness of
such redemption), 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 10 days after such action of the Board of Directors
ordering the redemption of the Rights (or such later time as
the Board of Directors may establish for the effectiveness of
such redemption), the Company shall mail a notice of
redemption to all the holders of the then outstanding Rights
at their last addresses as they appear upon the registry
books of the Rights Agent or, prior to the Distribution Date,
on the registry books of the transfer agent for the Common
Stock. Any notice which is mailed in the manner herein
provided shall be deemed given, whether or not the holder
receives the notice. Each such notice of redemption shall
state the method by which the payment of the Redemption Price
will be made.
Section 24. Exchange.
(a) The Board of Directors of the Company may, at
its option, at any time after the Flip-In Event, exchange all
or part of the then outstanding and exercisable Rights (which
shall not include Rights that have become void pursuant to
the provisions of Section 11(a)(ii) hereof) for Common Stock
at an exchange ratio of one share of Common Stock per Right,
appropriately adjusted to reflect any stock split, stock
dividend or similar transaction occurring in respect of the
Common Stock after the date hereof (such amount per Right
being hereinafter referred to as the "Exchange Ratio").
Notwithstanding the foregoing, the Board of Directors shall
not be empowered to effect such exchange at any time after an
Acquiring Person shall have become the Beneficial Owner of
shares of Common Stock aggregating 50% or more of the shares
of Common Stock then outstanding. From and after the
occurrence of an event specified in Section 13(a) hereof, any
Rights that theretofore have not been exchanged pursuant to
this Section 24(a) shall thereafter be exercisable only in
accordance with Section 13 and may not be exchanged pursuant
to this Section 24(a). The exchange of the Rights by the
Board of Directors may be made effective at such time, on
such basis and with such conditions as the Board of Directors
in its sole discretion may establish.
31
(b) Immediately upon the effectiveness of the action
of the Board of Directors of the Company ordering the
exchange of any Rights pursuant to paragraph (a) of this
Section 24 and without any further action and without any
notice, the right to exercise such Rights shall terminate and
the only right thereafter of a holder of such Rights shall be
to receive that number of shares of Common Stock equal to the
number of 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 the Rights so exchanged at their last addresses
as they appear upon the registry books of the Rights Agent.
Any notice which is mailed in the manner herein provided
shall be deemed given, whether or not the holder receives
the notice. Each such notice of exchange will state the
method by which the exchange of the shares of Common
Stock 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) The Company may at its option substitute, and,
in the event that there shall not be sufficient shares of
Common Stock issued but not outstanding or authorized but
unissued to permit an exchange of Rights for Common Stock as
contemplated in accordance with this Section 24, the Company
shall substitute to the extent of such insufficiency, for
each share of Common Stock that would otherwise be issuable
upon exchange of a Right, a number of shares of Preferred
Stock or fraction thereof (or Equivalent Preferred Shares, as
such term is defined in Section 11(b)) such that the current
per share market price (determined pursuant to Section 11(d)
hereof) of one share of Preferred Stock (or Equivalent
Preferred Share) multiplied by such number or fraction is
equal to the current per share market price of one share of
Common Stock (determined pursuant to Section 11(d) hereof) as
of the date of such exchange.
Section 25. Notice of Certain Events.
(a) In case the Company shall at any time after the
earlier of the Distribution Date or the Stock Acquisition
Date propose (i) to pay any dividend payable in stock of any
class to the holders of its Preferred Stock or to make any
other distribution to the holders of its Preferred Stock
(other than a regular quarterly cash dividend), (ii) to offer
to the holders of its Preferred Stock rights or warrants to
subscribe for or to purchase any additional shares of
Preferred Stock or shares of stock of any class or any other
securities, rights or options, (iii) to effect any
reclassification of its Preferred Stock (other than a
reclassification involving only the subdivision or
combination of outstanding Preferred Stock), (iv) to effect
the liquidation, dissolution or winding up of the Company, or
(v) to pay any dividend on the Common Stock payable in Common
Stock or to effect a subdivision, combination or
consolidation of the Common Stock (by reclassification or
otherwise than by payment of dividends in Common Stock),
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 the purposes of such stock dividend, or
distribution of rights or warrants, or the date on which such
liquidation, dissolution or winding up is to take place and
the date
32
of participation therein by the holders of the Common
Stock and/or Preferred Stock, if any such date is to
be fixed, and such notice shall be so given in the case of
any action covered by clause (i) or (ii) above at least 10
days prior to the record date for determining holders of the
Preferred Stock for purposes of such action, and in the case
of any such other action, at least 10 days prior to the date
of the taking of such proposed action or the date of
participation therein by the holders of the Common Stock
and/or Preferred Stock, whichever shall be the earlier.
(b) In case any event described in Section 11(a)(ii)
or Section 13 shall occur then the Company shall as soon as
practicable thereafter give to each holder of a Right
Certificate (or if occurring prior to the Distribution Date,
the holders of the Common Stock) in accordance with Section
26 hereof, a notice of the occurrence of such event, which
notice shall describe such event and the consequences of such
event to holders of Rights under Section 11(a)(ii) and
Section 13 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:
Xxxxxxxx Metals Company
0000 Xxxx Xxxxx Xxxxxx
X.X. Xxx 00000
Xxxxxxxx, XX 00000
Attention: Secretary
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:
ChaseMellon Shareholder Services, L.L.C.
00 Xxxxxxxxxx Xxxx
Xxxxxxxxxx Xxxx, XX 00000
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. Except as
provided in the penultimate sentence of this Section 27, for
so long as the Rights are then redeemable, the Company may in
its sole and absolute discretion, and the Rights Agent shall
if the Company so directs, supplement or amend any provision
of this Agreement in any respect without the approval of any
holders of the Rights. At any time when the Rights are no
longer redeemable, except as provided in the penultimate
sentence of this Section 27, the Company may, and the
33
Rights Agent shall, if the Company so directs, supplement or
amend this Agreement without the approval of any holders of
Rights, provided that no such supplement or amendment may (a)
adversely affect the interests of the holders of Rights as
such (other than an Acquiring Person or an Affiliate or
Associate of an Acquiring Person), (b) cause this Agreement
again to become amendable other than in accordance with this
sentence or (c) cause the Rights again to become redeemable.
Notwithstanding anything contained in this Agreement to the
contrary, no supplement or amendment shall be made which
changes the Redemption Price. Upon the delivery of a
certificate from an appropriate officer of the Company which
states that the supplement or amendment is in compliance with
the terms of this Section 27, the Rights Agent shall execute
such supplement or amendment, provided that any supplement
or amendment that does not amend Sections 18, 19, 20 or 21
hereof in a manner adverse to the Rights Agent shall become
effective immediately upon execution by the Company, whether
or not also executed by 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 Stock) any legal or equitable right, remedy
or claim under this Agreement; but this Agreement shall be
for the sole and exclusive benefit of the Company, the Rights
Agent and the registered holders of the Right Certificates
(and, prior to the Distribution Date, the Common Stock).
Section 30. 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 the 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, without limitation, a determination to
redeem or not redeem the Rights or to amend or not amend this
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, as
such, and all other parties, and (y) not subject the Board of
Directors to any liability to the holders of the Rights.
Section 31. Severability. If any term, provision,
covenant or restriction of this Agreement is held by a court
of competent jurisdiction or other authority to be invalid,
void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Agreement
shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
34
Section 32. Governing Law. This Agreement and each
Right Certificate issued hereunder shall be deemed to be a
contract made under the laws of the State of 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 33. Counterparts. This Agreement may be
executed in any number of counterparts and each of such
counterparts shall for all purposes be deemed to be an
original, and all such counterparts shall together constitute
but one and the same instrument.
Section 34. Descriptive Headings. Descriptive
headings of the several Sections of this Agreement are
inserted for convenience only and shall not control or affect
the meaning or construction of any of the provisions hereof.
35
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed, all as of the day and
year first above written.
XXXXXXXX METALS COMPANY
By: /s/ D. Xxxxxxx Xxxxx
______________________________
Name: D. Xxxxxxx Xxxxx
Title: Senior Vice President and
General Counsel
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.,
as Rights Agent
By: /s/ Xxxxx Xxxxxxx
_____________________________
Name: Xxxxx Xxxxxxx
Title: Assistant Vice President
Exhibit A
Form of Right Certificate
Certificate No. R-______
NOT EXERCISABLE AFTER DECEMBER 1,
2007 OR EARLIER IF REDEMPTION OR
EXCHANGE OCCURS. THE RIGHTS ARE
SUBJECT TO REDEMPTION AT $.01 PER
RIGHT AND TO EXCHANGE ON THE TERMS
SET FORTH IN THE AMENDED AND
RESTATED RIGHTS AGREEMENT. UNDER
CERTAIN CIRCUMSTANCES, AS SET FORTH
IN THE AMENDED AND RESTATED RIGHTS
AGREEMENT, RIGHTS OWNED BY OR
TRANSFERRED TO ANY PERSON WHO IS OR
BECOMES AN ACQUIRING PERSON (AS
DEFINED IN THE AMENDED AND RESTATED
RIGHTS AGREEMENT) AND CERTAIN
TRANSFEREES THEREOF WILL BECOME
NULL AND VOID AND WILL NO LONGER BE
TRANSFERABLE.
RIGHT CERTIFICATE
XXXXXXXX METALS COMPANY
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 Amended and Restated Rights Agreement, dated as of
March 8, 1999, as the same may be amended from time to
time (the "Rights Agreement"), between Xxxxxxxx Metals
Company, a Delaware corporation (the "Company"), and
ChaseMellon Shareholder Services, L.L.C., as Rights Agent
(the "Rights Agent"), to purchase from the Company at any time
after the Distribution Date (as such term is defined in the
Rights Agreement) and prior to 5:00 P.M., New York City time,
on December 1, 2007 at the office or agency of the Rights Agent
designated for such purpose, or of its successor as Rights
Agent, one one-hundredth of a fully paid non-assessable share
of Series A Junior Participating Preferred Stock, without par
value (the "Preferred Stock"), of the Company at a purchase
price of $300 per one one-hundredth of a share of Preferred
Stock (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 Rights Certificate (and the number of one one-hundredths
of a share of Preferred Stock 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 ________________, 199_, based on the Preferred
Stock as constituted at such date. As provided in the Rights
Agreement, the Purchase Price, the number of one one-
hundredths of a share of Preferred Stock (or other securities
or property) which may be purchased upon the exercise of the
Rights and the number of 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
office or agency of the Rights Agent. The Company will mail
to the holder of this Right Certificate a copy of the Rights
Agreement without charge after receipt of a written request
therefor.
This Right Certificate, with or without other
Right Certificates, upon surrender at the office or agency of
the Rights Agent designated for such purpose, may be
exchanged for another Right Certificate or Right Certificates
of like tenor and date evidencing Rights entitling the holder
to purchase a like aggregate number of shares of Preferred
Stock as the Rights evidenced by the Right Certificate or
Right Certificates surrendered shall have entitled such
holder to purchase. If this Right Certificate shall be
exercised in part, the holder shall be entitled to receive
upon surrender hereof another Right Certificate or Right
Certificates for the number of whole Rights not exercised.
Subject to the provisions of the Rights
Agreement, the Rights evidenced by this Certificate (i) may
be redeemed by the Company at a redemption price of $.01 per
Right or (ii) may be exchanged in whole or in part for shares
of the Company's Common Stock, without par value, or shares
of Preferred Stock.
No fractional shares of Preferred Stock or
Common Stock will be issued upon the exercise or exchange of
any Right or Rights evidenced hereby (other than fractions of
Preferred Stock which are integral multiples of one one-
hundredth of a share of Preferred Stock, which may, at the
election of the Company, be evidenced by depository
receipts), but in lieu thereof a cash payment will be made,
as provided in the Rights Agreement.
No holder of this Right Certificate, as such,
shall be entitled to vote or receive dividends or be deemed
for any purpose the holder of the Preferred Stock or of any
other securities of the Company which may at any time be
issuable on the exercise or exchange hereof, nor shall
anything contained in the Rights Agreement or herein be
construed to confer upon the holder hereof, as such, any of
the rights of a stockholder of the Company or any right to
vote for the election of directors or upon any matter
submitted to stockholders at any
meeting thereof, or to give or withhold consent to
any corporate action, or to receive notice of meetings or
other actions affecting stockholders (except as provided in
the Rights Agreement) or to receive dividends or subscription
rights, or otherwise, until the Right or Rights evidenced by
this Right Certificate shall have been exercised or exchanged
as provided in the Rights Agreement.
This Right Certificate shall not be valid or
obligatory for any purpose until it shall have been
countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper
officers of the Company and its corporate seal. Dated as of
March 8, 1999.
XXXXXXXX METALS COMPANY
By: ------------------------
Title: _____________________
ATTEST:
____________________________________
Title:______________________________
Countersigned:
CHASEMELLON SHAREHOLDER SERVICES, L.L.C., as Rights Agent
By__________________________________
Title:______________________________
Form of Reverse Side of Right Certificate
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Right Certificate)
FOR VALUE RECEIVED __________________________
hereby sells, assigns and transfers unto _________________
__________________________________________________________
__________________________________________________________
(Please print name and address of transferee)
_______ Rights represented by this Right Certificate,
together with all right, title and interest therein, and does
hereby irrevocably constitute and appoint ___________________
Attorney, to transfer said Rights on the books of the within-
named Company, with full power of substitution.
Dated: __________________
___________________________
Signature
Signature Guaranteed:
Signatures must be guaranteed by a bank, trust
company, broker, dealer or other eligible institution
participating in a recognized signature guarantee medallion
program.
.............................................................
(To be completed)
The undersigned hereby certifies that the Rights
evidenced by this Right Certificate are not beneficially
owned by, were not acquired by the undersigned from, and are
not being assigned to an Acquiring Person or an Affiliate or
Associate thereof (as defined in the Rights Agreement).
________________________
Signature
Form of Reverse Side of Right Certificate - continued
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to exercise
Rights represented by the Rights Certificate)
To XXXXXXXX METALS COMPANY:
The undersigned hereby irrevocably elects to
exercise ________ Rights represented by this Right
Certificate to purchase the shares of Preferred Stock (or
other securities or property) issuable upon the exercise of
such Rights and requests that certificates for such shares of
Preferred Stock (or such other securities) be issued in the
name of:
_____________________________________________________________
(Please print name and address)
_____________________________________________________________
If such number of Rights shall not be all the Rights
evidenced by this Right Certificate, a new Right Certificate
for the balance remaining of such Rights shall be registered
in the name of and delivered to:
Please insert social security
or other identifying number
_____________________________________________________________
(Please print name and address)
_____________________________________________________________
Dated:____________________
________________________
Signature
(Signature must conform to holder specified on Right
Certificate)
Signature Guaranteed:
Signature must be guaranteed by a bank, trust
company, broker, dealer or other eligible institution
participating in a recognized signature guarantee medallion
program.
Form of Reverse Side of Right Certificate - continued
_____________________________________________________________
(To be completed)
The undersigned certifies that the Rights
evidenced by this Right Certificate are not beneficially
owned by, and were not acquired by the undersigned from, an
Acquiring Person or an Affiliate or Associate thereof (as
defined in the Rights Agreement).
__________________________
Signature
_____________________________________________________________
NOTICE
The signature in the Form of Assignment or Form
of Election to Purchase, as the case may be, 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, such
Assignment or Election to Purchase will not be honored.
