St. Xxxxxx Light & Power Company
and
Xxxxxx Trust and Savings Bank
Rights Agent
Rights Agreement
Dated as of September 18, 1996
Table of Contents
Section Page
Section 1. Certain Definitions . . . . . . . . . . . . . . .1
Section 2. Appointment of Rights Agent . . . . . . . . . . .4
Section 3. Issue of Rights Certificates. . . . . . . . . . .4
Section 4. Form of Rights Certificates . . . . . . . . . . .6
Section 5. Countersignature and Registration . . . . . . . .7
Section 6. Transfer, Split Up, Combination and Exchange
of Rights Certificates; Mutilated, Destroyed,
Lost or Stolen Rights Certificates. . . . . . 8
Section 7. Exercise of Rights; Purchase Price; Expiration
Date of Rights. . . . . . . . . . . . . . . . 8
Section 8. Cancellation and Destruction of Rights
Certificates . . . . . . . . . . . . . . . . 10
Section 9. Reservation and Availability of Capital Stock . 11
Section 10. Common Stock Record Date . . . . . . . . . . . 12
Section 11. Adjustment of Purchase Price, Number and Kind
of Shares or Number of Rights . . . . . . . . 12
Section 12. Certificate of Adjusted Purchase Price or
Number of Shares. . . . . . . . . . . . . . . 20
Section 13. Consolidation, Merger or Sale or Transfer
of Assets or Earning Power. . . . . . . . . . 20
Section 14. Fractional Rights and Fractional Shares. . . . . 22
Section 15. Rights of Action . . . . . . . . . . . . . . . . 23
Section 16. Agreement of Rights Holders. . . . . . . . . . . 23
Section 17. Rights Certificate Holder Not Deemed a
Stockholder. . . . . . . . . . . . . . . . . . 24
Section 18. Concerning the Rights Agent. . . . . . . . . . . 24
Section 19. Merger or Consolidation or Change of Name
of Rights Agent. . . . . . . . . . . . . . . . 25
Section 20. Duties of Rights Agent . . . . . . . . . . . . . 25
Section 21. Change of Rights Agent . . . . . . . . . . . . . 27
Section 22. Issuance of New Rights Certificates. . . . . . . 28
Section 23. Redemption and Termination . . . . . . . . . . . 28
Section 24. Exchange . . . . . . . . . . . . . . . . . . . . 29
Section 25. Notice of Certain Events . . . . . . . . . . . . 30
Section 26. Notices. . . . . . . . . . . . . . . . . . . . . 31
Section 27. Supplements and Amendments . . . . . . . . . . . 32
Section 28. Successors . . . . . . . . . . . . . . . . . . . 32
Section 29. Determination and Actions by the Board of
Directors, etc . . . . . . . . . . . . . . . . 32
Section 30. Benefits of this Agreement . . . . . . . . . . . 33
Section 31. Transition . . . . . . . . . . . . . . . . . . . 33
Section 32. Severability . . . . . . . . . . . . . . . . . . 33
Section 33. Governing Law. . . . . . . . . . . . . . . . . . 33
Section 34. Counterparts . . . . . . . . . . . . . . . . . . 33
Section 35. Descriptive Headings . . . . . . . . . . . . . . 34
RIGHTS AGREEMENT
This RIGHTS AGREEMENT, dated as of September 18,
1996 (this "Agreement"), is by and between St. Xxxxxx Light
& Power Company, a Missouri corporation (the "Company"),
and Xxxxxx Trust and Savings Bank, an Illinois banking
association (the "Rights Agent").
W I T N E S S E T H:
WHEREAS, the Company and the Rights Agent entered
into that certain Rights Agreement dated as of November 19,
1986 (the "1986 Rights Agreement");
WHEREAS, the rights governed by the 1986 Rights
Agreement (the "1986 Rights") will expire at the Close of
Business (as hereinafter defined) on December 4, 1996; and
WHEREAS, on September 18, 1996 (the "Rights
Dividend Declaration Date"), the Board of Directors of the
Company authorized and declared, subject to the receipt by
the Company of the appropriate approvals of the Public
Service Commission of the State of Missouri, a dividend
distribution of one Right (as hereinafter defined) for each
share of Common Stock (as hereinafter defined) of the
Company outstanding at the Close of Business on December 4,
1996 (the "Record Date"), to be effective contemporaneously
with the expiration of the 1986 Rights, each Right
initially representing the right to purchase one-half of a
share of Common Stock of the Company, upon the terms and
subject to the conditions hereinafter set forth (the
"Rights"), and has further authorized the issuance of one
Right (as such number may hereinafter be adjusted pursuant
to the provisions of Section 11(p) hereof) for each share
of Common Stock of the Company issued between the Record
Date and the Distribution Date (as hereinafter defined).
NOW, THEREFORE, in consideration of the premises
and the mutual agreements herein set forth, the parties
hereby agree as follows:
Section 1. Certain Definitions. For purposes of
this Agreement, the following terms have the meanings
indicated:
(a) "Acquiring Person" shall mean any Person who
or which, together with all Affiliates and Associates of
such Person, shall be the Beneficial Owner of 15% or more
of the shares of Common Stock then outstanding, but shall
not include the Company, any Subsidiary of the Company, any
employee benefit plan of the Company or of any Subsidiary
of the Company, or any Person organized, appointed or
established by the Company for or pursuant to the terms of
any such plan. Notwithstanding the foregoing, 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 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 share purchases
by the Company and shall, after such share purchases by the
Company, become the Beneficial Owner of any additional
shares of Common Stock, then such Person shall be deemed to
be an "Acquiring Person". Notwithstanding the foregoing,
if the Board of Directors of the Company determines in good
faith that a Person who would otherwise be an "Acquiring
Person" (as defined pursuant to the foregoing provisions of
this paragraph (a)) has become such inadvertently, and such
Person divests as promptly as practicable a sufficient
number of shares of Common Stock so that such Person would
no longer be an "Acquiring Person" (as defined pursuant to
the foregoing provisions of this paragraph (a)), then such
Person shall not be deemed to be an "Acquiring Person" for
any purposes of this Agreement.
(b) "Act" shall mean the Securities Act of 1933,
as amended.
(c) "Affiliate" and "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2 of
the General Rules and Regulations under the Securities
Exchange Act of 1934, as amended and in effect on the date
of this Agreement (the "Exchange Act").
(d) A Person shall be deemed the "Beneficial
Owner" of, and shall be deemed to "beneficially own," any
securities:
(i) which such Person or any of such
Person's Affiliates or Associates, directly or
indirectly, has the right to acquire (whether
such right is exercisable immediately or only
after the passage of time) pursuant to any
agreement, arrangement or understanding (whether
or not in writing) 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,"
(A) securities tendered pursuant to a tender or
exchange offer made by such Person or any of such
Person's Affiliates or Associates until such
tendered securities are accepted for purchase or
exchange, or (B) securities issuable upon
exercise of Rights at any time prior to the
occurrence of a Triggering Event, or (C)
securities issuable upon exercise of Rights from
and after the occurrence of a Triggering Event
which Rights were acquired by such Person or any
such Person's Affiliates or Associates prior to
the Distribution Date or pursuant to Section 3(a)
or Section 22 hereof (the "Original Rights") or
pursuant to Section 11(i) hereof in connection
with an adjustment made with respect to any
Original Rights;
(ii) which such Person or any of such
Person's Affiliates or Associates, directly or
indirectly, has the right to vote or dispose of
or has "beneficial ownership" of (as determined
pursuant to Rule 13d-3 of the General Rules and
Regulations under the Exchange Act), including
pursuant to any agreement, arrangement or
understanding, whether or not in writing;
provided, however, that a Person shall not be
deemed the "Beneficial Owner" of, or to
"beneficially own," any security under this
subparagraph (ii) as a result of an agreement,
arrangement or understanding to vote such
security if such agreement, arrangement or
understanding: (A) arises solely from a
revocable proxy given in response to a public
proxy or consent solicitation made pursuant to,
and in accordance with, the applicable provisions
of the General Rules and Regulations under the
Exchange Act, and (B) is not also then reportable
by such Person 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 (or any
Affiliate or Associate thereof) with which such
Person (or any of such Person's Affiliates or
Associates) has any agreement, arrangement or
understanding (whether or not in writing), for
the purpose of acquiring, holding, voting (except
pursuant to a revocable proxy as described in the
proviso to subparagraph (ii) of this paragraph
(d)) or disposing of any voting securities of the
Company;
provided, however, that nothing in this paragraph (d) shall
cause a Person engaged in business as an underwriter of
securities to be the "Beneficial Owner" of, or to
"beneficially own," any securities acquired through such
Person's participation in good faith in a firm commitment
underwriting until the expiration of forty days after the
date of such acquisition.
(e) "Business Day" shall mean any day other than
a Saturday, Sunday or a day on which banking institutions
in the State of Illinois or the State of New York are
authorized or obligated by law or executive order to close.
(f) "Close of Business" on any given date shall
mean 5:00 P.M., Chicago time, on such date; provided,
however, that if such date is not a Business Day, it shall
mean 5:00 P.M., Chicago time, on the next succeeding
Business Day.
(g) "Common Stock" shall mean the common stock,
without par value, of the Company, except that "Common
Stock" when used with reference to any Person other than
the Company shall mean the capital stock of such Person
with the greatest voting power, or the equity securities or
other equity interest having power to control or direct the
management, of such Person.
(h) "Person" shall mean any individual, firm,
limited liability company, corporation, partnership or
other entity.
(i) "Section 11(a)(ii) Event" shall mean the
event described in Section 11(a)(ii) hereof.
(j) "Section 13 Event" shall mean any event
described in clauses (x), (y) or (z) of Section 13(a)
hereof.
(k) "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) under the Exchange
Act) by the Company or an Acquiring Person that an
Acquiring Person has become such.
(l) "Subsidiary" shall mean, with reference to
any Person, any corporation of which an amount of voting
securities sufficient to elect at least a majority of the
directors of such corporation is beneficially owned,
directly or indirectly, by such Person, or otherwise
controlled by such Person.
(m) "Triggering Event" shall mean any Section
11(a)(ii) Event or any Section 13 Event.
In addition, for purposes of this Agreement, the
following terms have the meanings indicated in specified
sections of this Agreement: (i) "Adjustment Shares" shall
have the meaning set forth in Section 11(a)(ii) hereof;
(ii) "common stock equivalents" shall have the meaning set
forth in Section 11(a)(iii) hereof; (iii) "current market
price" shall have the meanings set forth in Section 11(d)
hereof; (iv) "Current Value" shall have the meaning set
forth in Section 11(a)(iii) hereof; (v) "Distribution Date"
shall have the meaning set forth in Section 3(a) hereof;
(vi) "equivalent common stock" shall have the meaning set
forth in Section 11(b) hereof; (vii) "NASDAQ" shall have
the meaning set forth in Section 11(d)(i) hereof; (viii)
"Principal Party" shall have the meaning set forth in
Section 13(b) hereof; (ix) "Purchase Price" shall have the
meaning set forth in Section 4(a) hereof; (x) "Redemption
Price" shall have the meaning set forth in Section 23(a)
hereof; (xi) "Rights Certificates" shall have the meaning
set forth in Section 3(a) hereof; (xii) "Section 11(a)(ii)
Trigger Date" shall have the meaning set forth in Section
11(a)(iii) hereof; (xiii) "Spread" shall have the meaning
set forth in Section 11(a)(ii) hereof; (xiv) "Substitution
Period" shall have the meaning set forth in Section
11(a)(iii) hereof; (xv) "Summary of Rights" shall have the
meaning set forth in Section 3(b) hereof; and (xvi)
"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 and the holders of the Rights (who, in
accordance with Section 3 hereof, shall, prior to the
Distribution Date, also be the holders of the Common Stock)
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 Rights Certificates. (a)
Until the earlier of (i) the Close of Business on the tenth
day after the Stock Acquisition Date (or, if the tenth day
after the Stock Acquisition Date occurs before the Record
Date, the Close of Business on the Record Date), or (ii)
the Close of Business on the tenth Business Day (or such
later date as may be determined by action of the Board of
Directors of the Company prior to such time as any Person
becomes an Acquiring Person) after the date that a tender
or exchange offer by any Person (other than the Company,
any Subsidiary of the Company, any employee benefit plan of
the Company or of any Subsidiary of the Company, or any
Person organized, appointed or established by the Company
for or pursuant to the terms of any such plan) is first
published or sent or given within the meaning of Rule 14d-2(a)
of the General Rules and Regulations under the Exchange Act,
if upon consummation thereof, such Person would be the
Beneficial Owner of 15% or more of the shares of Common
Stock then outstanding (the earlier of (i) and (ii) being
herein referred to as the "Distribution Date"), (x) the
Rights will be evidenced (subject to the provisions of
paragraph (b) of this Section 3) by the certificates for
the Common Stock registered in the names of the holders of
the Common Stock (which certificates for Common Stock shall
be deemed also to be certificates for Rights) and not by
separate certificates and (y) the Rights will be
transferable only in connection with the transfer of the
underlying shares of Common Stock (including a transfer to
the Company). As soon as practicable after the
Distribution Date, the Rights Agent will send by first-class,
insured, postage prepaid mail, to each record holder
of the Common Stock as of the Close of Business on the
Distribution Date, at the address of such holder shown on
the records of the Company, one or more Rights
certificates, in substantially the form of Exhibit A hereto
(the "Rights Certificates"), evidencing one Right for each
share of Common Stock so held, subject to adjustment as
provided herein. In the event that an adjustment in the
number of Rights per share of Common Stock has been made
pursuant to Section 11(p) hereof, at the time of
distribution of the Rights Certificates, the Company shall
make the necessary and appropriate rounding adjustments (in
accordance with Section 14(a) hereof) so that Rights
Certificates representing only whole numbers of Rights are
distributed and cash is paid in lieu of any fractional
Rights. As of and after the Distribution Date, the Rights
will be evidenced solely by such Rights Certificates.
(b) As promptly as practicable following the
Record Date, the Company will send a copy of a Summary of
Rights to Purchase Common Stock, in substantially the form
attached hereto as Exhibit B (the "Summary of Rights"), by
first-class, postage prepaid mail, to each record holder of
the Common Stock as of the Close of Business on the Record
Date, at the address of such holder shown on the records of
the Company. With respect to certificates for the 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 a copy of the Summary of Rights attached
thereto. Until the earlier of the Distribution Date or
the Expiration Date (as such term is defined in Section 7
hereof), the surrender for transfer of any certificate
representing shares of Common Stock in respect of which
Rights have been issued, with or without a copy of the
Summary of Rights attached thereto, shall also constitute
the transfer of the Rights associated with such shares of
Common Stock.
(c) Rights shall be issued in respect of all
shares of Common Stock which are issued (whether originally
issued or from the Company's treasury) after the Record
Date but prior to the earlier of the Distribution Date or
the Expiration Date or, in certain circumstances provided
in Section 22 hereof, after the Distribution Date.
Certificates representing such shares of Common Stock shall
also be deemed to be certificates for Rights, and shall
bear the following legend:
This certificate also evidences and entitles
the holder hereof to certain rights as set forth
in the Rights Agreement between St. Xxxxxx Light
& Power Company (the "Company") and Xxxxxx Trust
and Savings Bank (the "Rights Agent") dated as of
September 18, 1996 (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 the 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 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 earlier of (i) the Distribution Date or
(ii) the Expiration Date, the Rights associated with the
Common Stock represented by such certificates shall be
evidenced by such certificates alone and registered holders
of Common Stock shall also be the registered holders of the
associated Rights, and the surrender for transfer of any of
such certificates shall also constitute the transfer of the
Rights associated with the Common Stock represented by such
certificates.
Section 4. Form of Rights Certificates. (a)
The Rights Certificates (and the forms of election to
purchase and of assignment to be printed on the reverse
thereof) shall each 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 on which the Rights may from time to time be
listed, or to conform to usage. Subject to the provisions
of Section 11 and Section 22 hereof, the Rights
Certificates, whenever distributed, shall be dated as of
the Record Date and on their face shall entitle the holders
thereof to purchase such number of one-halves of a share of
Common Stock as shall be set forth therein at the price set
forth therein (such exercise price per one-half of a share,
the "Purchase Price"), but the amount and type of
securities purchasable upon the exercise of each Right and
the Purchase Price thereof shall be subject to adjustment
as provided herein.
(b) Any Rights Certificate issued pursuant to
Section 3(a) or Section 22 hereof that represents Rights
beneficially owned by any Person known to be: (i) an
Acquiring Person or any Associate or Affiliate of an
Acquiring Person, (ii) a transferee of an Acquiring Person
(or of any such Associate or Affiliate) who becomes a
transferee after the Acquiring Person becomes such, or
(iii) a transferee of an Acquiring Person (or of any such
Associate or Affiliate) who becomes a transferee prior to
or concurrently with the Acquiring Person becoming such and
receives such Rights pursuant to either (A) a transfer
(whether or not for consideration) from the Acquiring
Person to holders of equity interests in such Acquiring
Person or to any Person with whom such Acquiring Person has
any continuing agreement, arrangement or understanding
regarding the transferred Rights or (B) a transfer which
the Board of Directors of the Company has determined is
part of a plan, arrangement or understanding which has as a
primary purpose or effect avoidance of Section 7(e) hereof,
and any Rights Certificate issued pursuant to Section 6 or
Section 11 hereof upon transfer, exchange, replacement or
adjustment of any other Rights Certificate referred to in
this sentence, shall contain (to the extent feasible) the
following legend:
The Rights represented by this Rights Certificate
are or were beneficially owned by a Person who
was or became an Acquiring Person or an Affiliate
or Associate of an Acquiring Person (as such
terms are defined in the Rights Agreement).
Accordingly, this Rights Certificate and the
Rights represented hereby may become null and
void in the circumstances specified in Section
7(e) of such Agreement.
Section 5. Countersignature and Registration.
(a) The Rights Certificates shall be executed on behalf of
the Company by its President or any Vice President, either
manually or by facsimile signature, and shall have affixed
thereto the Company's seal or a facsimile thereof which
shall be attested by the Secretary or an Assistant
Secretary of the Company, either manually or by facsimile
signature. The Rights Certificates shall be countersigned
manually or by facsimile signature by the Rights Agent and
shall not be valid for any purpose unless so countersigned.
In case any officer of the Company who shall have signed
any of the Rights Certificates shall cease to be such
officer of the Company before countersignature by the
Rights Agent and issuance and delivery by the Company, such
Rights 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 Rights Certificates had not ceased to be such
officer of the Company; and any Rights Certificates may be
signed on behalf of the Company by any person who, at the
actual date of the execution of such Rights Certificate,
shall be a proper officer of the Company to sign such
Rights Certificate, although at the date of the execution
of this Rights 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 its principal
office or offices designated as the appropriate place for
surrender of Rights Certificates upon exercise or transfer,
books for registration and transfer of the Rights
Certificates issued hereunder. Such books shall show the
names and addresses of the respective holders of the Rights
Certificates, the number of Rights evidenced on its face by
each of the Rights Certificates and the certificate number
and the date of each of the Rights Certificates.
Section 6. Transfer, Split Up, Combination and
Exchange of Rights Certificates; Mutilated, Destroyed, Lost
or Stolen Rights Certificates. (a) Subject to the
provisions of Section 4(b), Section 7(e) and Section 14
hereof, at any time after the Close of Business on the
Distribution Date, and at or prior to the Close of Business
on the Expiration Date, any Rights Certificate or
Certificates (other than Rights Certificates representing
Rights that have been exchanged pursuant to Section 24
hereof) may be transferred, split up, combined or exchanged
for another Rights Certificate or Certificates, entitling
the registered holder to purchase a like number of one-halves
of a share of Common Stock (or, following a Triggering Event,
other securities, cash or other assets, as the case may be)
as the Rights Certificate or Certificates surrendered then
entitled such holder (or former holder in the case of a
transfer) to purchase. Any registered holder desiring to
transfer, split up, combine or exchange any Rights Certificate
or Certificates shall make such request in writing delivered
to the Rights Agent, and shall surrender the Rights Certificate
or Certificates to be transferred, split up, combined or
exchanged at the principal office or offices of the Rights
Agent designated for such purpose. Neither the Rights Agent
nor the Company shall be obligated to take any action whatsoever
with respect to the transfer of any such surrendered Rights
Certificate until the registered holder shall have
completed and signed the certificate contained in the form
of assignment on the reverse side of such Rights
Certificate and shall have provided such additional
evidence of the identity of the Beneficial Owner (or former
Beneficial Owner) or Affiliates or Associates thereof as
the Company shall reasonably request. Thereupon the Rights
Agent shall, subject to Section 4(b), Section 7(e), Section
14 and Section 24 hereof, countersign and deliver to the
Person entitled thereto a Rights Certificate or Rights
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 Rights Certificates.
(b) Upon receipt by the Company and the Rights
Agent of evidence reasonably satisfactory to them of the
loss, theft, destruction or mutilation of a Rights
Certificate, and, in case of loss, theft or destruction, of
indemnity or security reasonably satisfactory to them, and
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 Rights
Certificates if mutilated, the Company will execute and
deliver a new Rights Certificate of like tenor to the
Rights Agent for countersignature and delivery to the
registered owner in lieu of the Rights Certificate so lost,
stolen, destroyed or mutilated.
Section 7. Exercise of Rights; Purchase Price;
Expiration Date of Rights. (a) Subject to Section 7(e)
hereof, the registered holder of any Rights Certificate may
exercise the Rights evidenced thereby (except as otherwise
provided herein including, without limitation, the
restrictions on exercisability set forth in Section 9(c),
Section 11(a)(iii) and Section 23(a) hereof) in whole or in
part at any time after the Distribution Date upon surrender
of the Rights Certificate, with the form of election to
purchase and the certificate on the reverse side thereof
duly executed, to the Rights Agent at the principal office
or offices of the Rights Agent designated for such purpose,
together with payment of the aggregate Purchase Price with
respect to the total number of one-halves of a share of
Common Stock (or other securities, cash or other assets, as
the case may be) as to which such surrendered Rights are
then exercisable, at or prior to the earliest of (i) the
Close of Business on December 4, 2006 (the "Final
Expiration Date"), (ii) the time at which the Rights are
redeemed as provided in Section 23 hereof or (iii) the time
at which such Rights are exchanged pursuant to Section 24
hereof (the earliest of (i), (ii) and (iii) being herein
referred to as the "Expiration Date").
(b) The Purchase Price for each one-half of a
share of Common Stock pursuant to the exercise of a Right
shall initially be $35, and shall be subject to adjustment
from time to time as provided in Sections 11 and 13(a)
hereof and shall be payable in accordance with paragraph
(c) below.
(c) Upon receipt of a Rights Certificate
representing exercisable Rights, with the form of election
to purchase and the certificate duly executed, accompanied
by payment, with respect to each Right so exercised, of the
Purchase Price per one-half of a share of Common Stock (or
other securities, cash or other assets, as the case may be)
to be purchased as set forth below and an amount equal to
any applicable transfer tax, the Rights Agent shall,
subject to Section 20(k) hereof, thereupon promptly (i) (A)
requisition from any transfer agent of the shares of Common
Stock (or make available, if the Rights Agent is the
transfer agent for such shares) certificates for the total
number of one-halves of a share of Common Stock to be
purchased and the Company hereby irrevocably authorizes its
transfer agent to comply with all such requests, or (B) if
the Company shall have elected to deposit the total number
of shares of Common Stock issuable upon exercise of the
Rights hereunder with a depositary agent, requisition from
the depositary agent depositary receipts representing such
number of one-halves of a share of Common Stock as are to
be purchased (in which case certificates for the shares of
Common Stock represented by such receipts shall be
deposited by the transfer agent with the depositary agent)
and the Company will direct the depositary agent to comply
with such request, (ii) requisition from the Company the
amount of cash, if any, to be paid in lieu of fractional
shares in accordance with Section 14 hereof, (iii) after
receipt of such certificates or depositary receipts, cause
the same to be delivered to or upon the order of the
registered holder of such Rights Certificate, registered in
such name or names as may be designated by such holder, and
(iv) after receipt thereof, deliver such cash, if any, to
or upon the order of the registered holder of such Rights
Certificate. The payment of the Purchase Price (as such
amount may be reduced pursuant to Section 11(a)(iii)
hereof) shall be made in cash or by certified bank check or
bank draft payable to the order of the Company. In the
event that the Company is obligated to issue other
securities of the Company, pay cash and/or distribute other
property pursuant to Section 11(a) hereof, the Company will
make all arrangements necessary so that such other
securities, cash and/or other property are available for
distribution by the Rights Agent, if and when appropriate.
The Company reserves the right to require prior to the
occurrence of a Triggering Event that, upon any exercise of
Rights, a number of Rights be exercised so that only whole
shares of Common Stock would be issued.
(d) In case the registered holder of any Rights
Certificate shall exercise less than all the Rights
evidenced thereby, a new Rights Certificate evidencing
Rights equivalent to the Rights remaining unexercised shall
be issued by the Rights Agent and delivered to, or upon the
order of, the registered holder of such Rights Certificate,
registered in such name or names as may be designated by
such holder, subject to the provisions of Section 14
hereof.
(e) Notwithstanding anything in this Agreement
to the contrary, from and after the first occurrence of a
Section 11(a) (ii) Event, any Rights beneficially owned by
(i) an Acquiring Person or an Associate or Affiliate of an
Acquiring Person, (ii) a transferee of an Acquiring Person
(or of any such Associate or Affiliate) who becomes a
transferee after the Acquiring Person becomes such, or
(iii) a transferee of an Acquiring Person (or of any such
Associate or Affiliate) who becomes a transferee prior to
or concurrently with the Acquiring Person becoming such and
receives such Rights pursuant to either (A) a transfer
(whether or not for consideration) from the Acquiring
Person to holders of equity interests in such Acquiring
Person or to any Person with whom the Acquiring Person has
any continuing agreement, arrangement or understanding
regarding the transferred Rights or (B) a transfer which
the Board of Directors of the Company has determined is
part of a plan, arrangement or understanding which has as a
primary purpose or effect the avoidance of this Section
7(e), shall become null and void without any further action
and no holder of such Rights shall have any rights
whatsoever with respect to such Rights, whether under any
provision of this Agreement or otherwise. The Company
shall use all reasonable efforts to insure that the
provisions of this Section 7(e) and Section 4(b) hereof are
complied with, but shall have no liability to any holder of
Rights Certificates or other Person as a result of its
failure to make any determinations with respect to an
Acquiring Person or any of its Affiliates, Associates or
transferees hereunder.
(f) 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 upon the occurrence of any purported
exercise as set forth in this Section 7 unless such
registered holder shall have (i) completed and signed the
certificate contained in the form of election to purchase
set forth on the reverse side of the Rights Certificate
surrendered for such exercise, and (ii) provided such
additional evidence of the identity of the Beneficial Owner
(or former Beneficial Owner) or Affiliates or Associates
thereof as the Company shall reasonably request.
Section 8. Cancellation and Destruction of
Rights Certificates. All Rights Certificates surrendered
for the purpose of exercise, transfer, split up,
combination or exchange shall, if surrendered to the
Company or 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 cancelled by it,
and no Rights 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 Rights Certificates
purchased or acquired by the Company otherwise than upon
the exercise thereof. The Rights Agent shall deliver all
cancelled Rights Certificates to the Company, or shall, at
the written request of the Company, destroy such cancelled
Rights Certificates, and in such case shall deliver a
certificate of destruction thereof to the Company.
Section 9. Reservation and Availability of
Capital 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 Common Stock (and,
following the occurrence of a Triggering Event, out of its
authorized and unissued shares of other securities) or any
authorized and issued shares held in its treasury, the
number of shares of Common Stock (and, following the
occurrence of a Triggering Event, other securities) that,
as provided in this Agreement, including Section 11(a)(iii)
hereof, will be sufficient to permit the exercise in full
of all outstanding Rights.
(b) So long as the shares of Common Stock (and,
following the occurrence of a Triggering Event, other
securities) issuable and deliverable upon the exercise of
the Rights may be listed on any national securities
exchange, 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 on such
exchange upon official notice of issuance upon such
exercise.
(c) The Company shall use its best efforts to
(i) file, as soon as practicable following the earliest
date after the first occurrence of a Section 11(a)(ii)
Event on which the consideration to be delivered by the
Company upon exercise of the Rights has been determined in
accordance with Section 11(a)(iii) hereof, a registration
statement under the Act with respect to the securities
purchasable upon exercise of the Rights on an appropriate
form, (ii) cause such registration statement to become
effective as soon as practicable after such filing, and
(iii) cause such registration statement to remain effective
(with a prospectus at all times meeting the requirements of
the Act) until the earlier of (A) the date as of which the
Rights are no longer exercisable for such securities, and
(B) the date of the expiration of the Rights. The Company
will also take such action as may be appropriate under, or
to ensure compliance with, the securities or "blue sky"
laws of the various states in connection with the
exercisability of the Rights. The Company may temporarily
suspend, for a period of time not to exceed ninety (90)
days after the date set forth in clause (i) of the first
sentence of this Section 9(c), the exercisability of the
Rights in order to prepare and file such registration
statement 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. In
addition, if the Company shall determine that a
registration statement is required following the
Distribution Date, and a Section 11(a)(ii) Event has not
occurred, the Company may temporarily suspend the
exercisability of Rights until such time as a registration
statement has been declared effective. Notwithstanding any
provision of this Agreement to the contrary, the Rights
shall not be exercisable in any jurisdiction if the
requisite qualification in such jurisdiction shall not have
been obtained, the exercise thereof shall not be permitted
under applicable law or a registration statement shall not
have been declared effective.
(d) The Company covenants and agrees that it
will take all such actions as may be necessary to ensure
that all one-halves of a share of Common Stock (and,
following the occurrence of a Triggering Event, other
securities) delivered upon exercise of Rights shall, at the
time of delivery of the certificates for such shares
(subject to payment of the Purchase Price), be duly and
validly authorized and issued and fully paid and
nonassessable.
(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 Rights
Certificates and of any certificates for a number of one-halves
of a share of Common Stock (or other securities, as the
case may be) 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 Rights Certificates to a Person other than, or the
issuance or delivery of a number of one-halves of a share
of Common Stock (or other securities, as the case may be)
in respect of a name other than that of, the registered
holder of the Rights Certificates evidencing Rights
surrendered for exercise or to issue or deliver any
certificates for a number of one-halves of a share of
Common Stock (or other securities, as the case may be) in a
name other than that of the registered holder upon the
exercise of any Rights until such tax shall have been paid
(any such tax being payable by the holder of such Rights
Certificate at the time of surrender) or until it has been
established to the Company's satisfaction that no such tax
is due.
Section 10. Common Stock Record Date. Each
person in whose name any certificate for a number of one-halves
of a share of Common Stock (or other securities, as the
case may be) is issued upon the exercise of Rights shall
for all purposes be deemed to have become the holder
of record of such fractional shares of Common Stock (or
other securities, as the case may be) represented thereby
on, and such certificate shall be dated, the date upon
which the Rights Certificate evidencing such Rights was
duly surrendered and payment of the Purchase Price (and all
applicable transfer taxes) was made; provided, however,
that if the date of such surrender and payment is a date
upon which the Common Stock (or other securities, as the
case may be) transfer books of the Company are closed, such
Person shall be deemed to have become the record holder of
such shares (fractional or otherwise) on, and such
certificate shall be dated, the next succeeding Business
Day on which the Common Stock (or other securities, as the
case may be) transfer books of the Company are open. Prior
to the exercise of the Rights evidenced thereby, the holder
of a Rights Certificate shall not be entitled to any rights
of a stockholder of the Company with respect to shares for
which the Rights shall be exercisable, including, without
limitation, the right to vote, to receive dividends or
other distributions or to exercise any preemptive rights,
and shall not be entitled to receive any notice of any
proceedings of the Company, except as provided herein.
Section 11. Adjustment of Purchase Price, Number
and Kind of Shares or Number of Rights. The Purchase
Price, the number and kind of shares covered by each Right
and the number of Rights outstanding are subject to
adjustment from time to time as provided in this Section
11.
(a)(i) In the event the Company shall at any
time after the date of this Agreement (A) declare
a dividend on the Common Stock payable in shares
of Common Stock, (B) subdivide the outstanding
Common Stock, (C) combine the outstanding Common
Stock into a smaller number of shares, or (D)
issue any shares of its capital stock in a
reclassification of the Common 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) and
Section 7(e) hereof, the Purchase Price in effect
at the time of the record date for such dividend
or of the effective date of such subdivision,
combination or reclassification, and the number
and kind of shares of Common Stock or capital
stock, as the case may be, issuable on such date,
shall be proportionately adjusted so that the
holder of any Right exercised after such time
shall be entitled to receive, upon payment of the
Purchase Price then in effect, the aggregate
number and kind of shares of Common Stock or
capital stock, as the case may be, which, if such
Right had been exercised immediately prior to
such date and at a time when the Common Stock
transfer books of the Company were open, such
holder would have owned upon such exercise and
been entitled to receive by virtue of such
dividend, subdivision, combination or
reclassification. If an event occurs which would
require an adjustment under both this Section
11(a)(i) and Section 11(a)(ii) hereof, the
adjustment provided for in this Section 11(a)(i)
shall be in addition to, and shall be made prior
to, any adjustment required pursuant to Section
11(a)(ii) hereof.
(ii) In the event any Person (other than the
Company, any Subsidiary of the Company, any
employee benefit plan of the Company or of any
Subsidiary of the Company, or any Person
organized, appointed or established by the
Company for or pursuant to the terms of any such
plan), alone or together with its Affiliates and
Associates, shall, at any time after the Rights
Dividend Declaration Date, become an Acquiring
Person, then each holder of a Right (except as
provided below and in Section 7(e) hereof) shall
thereafter have the right to receive, upon
exercise thereof at the then current Purchase
Price in accordance with the terms of this
Agreement, in lieu of a number of one-halves of a
share of Common Stock, such number of shares of
Common Stock as shall equal the result obtained
by (x) multiplying the then current Purchase
Price by the then number of one-halves of a share
of Common Stock for which a Right was exercisable
immediately prior to the first occurrence of a
Section 11(a)(ii) Event and (y) dividing that
product (which, following such first occurrence
shall thereafter be referred to as the "Purchase
Price" for each Right and for all purposes of
this Agreement) by 50% of the current market
price (determined pursuant to Section 11(d)
hereof) per share of Common Stock on the date of
such first occurrence (such number of shares, the
"Adjustment Shares").
(iii) In the event that the number of shares
of Common Stock which are authorized by the
Company's articles of incorporation, but not
outstanding or reserved for issuance for purposes
other than upon exercise of the Rights, is not
sufficient to permit the exercise in full of the
Rights in accordance with the foregoing
subparagraph (ii) of this Section 11(a), the
Company shall: (A) determine the value of the
Adjustment Shares issuable upon the exercise of a
Right (the "Current Value"), and (B) with respect
to each Right, make adequate provision to
substitute for the Adjustment Shares, upon
payment of the applicable Purchase Price, (1)
cash, (2) a reduction in the Purchase Price, (3)
Common Stock or other equity securities of the
Company (including, without limitation, shares,
or units of shares, of preferred stock which the
Board of Directors of the Company has deemed to
have substantially the same value or economic
rights as shares of Common Stock (such shares of
preferred stock, "common stock equivalents")),
(4) debt securities of the Company, (5) other
assets, or (6) any combination of the foregoing,
having an aggregate value equal to the Current
Value (less the amount of any reduction in the
Purchase Price), where such aggregate value has
been determined by the Board of Directors of the
Company based upon the advice of a nationally
recognized investment banking firm selected by
the Board of Directors of the Company; provided,
however, if the Company shall not have made
adequate provision to deliver value pursuant to
clause (B) above within thirty (30) days
following the later of (x) the first occurrence
of a Section 11(a)(ii) Event and (y) the date on
which the Company's right of redemption pursuant
to Section 23(a) expires (the later of (x) and
(y) being referred to herein as the "Section
11(a)(ii) Trigger Date"), then the Company shall
be obligated to deliver, upon the surrender for
exercise of a Right and without requiring payment
of the Purchase Price, shares of Common Stock (to
the extent available) and then, if necessary,
cash, which shares and/or cash have an aggregate
value equal to the Spread. For purposes of the
preceding sentence, the term "Spread" shall mean
the excess of (i) the Current Value over (ii) the
Purchase Price. If the Board of Directors of the
Company 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, 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, the "Substitution
Period"). To the extent that action is to be
taken pursuant to the first and/or third
sentences of this Section 11(a)(iii), the Company
(x) shall provide, subject to Section 7(e)
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 such
stockholder approval for such authorization of
additional shares and/or to decide the
appropriate form of distribution to be made
pursuant to such first 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 each
Adjustment Share shall be the current market
price (as determined pursuant to Section 11(d)
hereof) per share of the Common Stock on the
Section 11(a)(ii) Trigger Date and the value of
any "common stock equivalent" shall be deemed to
equal the Current Market Price per share of the
Common Stock on such date.
(b) In case the Company shall fix a record date
for the issuance of rights (other than the Rights), options
or warrants to all holders of Common Stock entitling them
to subscribe for or purchase (for a period expiring within
forty-five (45) calendar days after such record date)
Common Stock (or shares having the same rights, privileges
and preferences as the shares of Common Stock ("equivalent
common stock")) or securities convertible into Common Stock
or equivalent common stock at a price per share of Common
Stock or per share of equivalent common stock (or having a
conversion price per share, if a security convertible into
Common Stock or equivalent common stock) less than the
current market price (as determined pursuant to Section
11(d) hereof) per share of Common Stock 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 Common Stock outstanding on such record date,
plus the number of shares of Common Stock which the
aggregate offering price of the total number of shares of
Common Stock and/or equivalent common stock 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 Common Stock outstanding
on such record date, plus the number of additional shares
of Common Stock and/or equivalent common stock to be
offered for subscription or purchase (or into which the
convertible securities so to be offered are initially
convertible). In case such subscription price may be paid
by delivery of consideration part or all of which may 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 and
shall be binding on the Rights Agent and the holders of the
Rights. Shares of Common Stock 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 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 a distribution to all holders of Common Stock
(including any such distribution made in connection with a
consolidation or merger in which the Company is the
continuing corporation) of evidences of indebtedness, cash
(other than a regular quarterly cash dividend out of the
earnings or retained earnings of the Company), assets
(other than a dividend payable in Common Stock, but
including any dividend payable in stock other than Common
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 current market price (as determined pursuant
to Section 11(d) hereof) per share of Common Stock 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 and shall be binding on the Rights Agent
and the holders of the Rights) of the portion of the cash,
assets or evidences of indebtedness so to be distributed or
of such subscription rights or warrants applicable to a
share of Common Stock and the denominator of which shall be
such current market price (as determined pursuant to
Section 11(d) hereof) per share of Common Stock. 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 be
adjusted to be the Purchase Price which would have been in
effect if such record date had not been fixed.
(d) For the purpose of any computation
hereunder, other than computations made pursuant to Section
11(a)(iii) hereof, the "current market price" per share of
Common Stock on any date shall be deemed to be the average
of the daily closing prices per share of such Common Stock
for the thirty (30) consecutive Trading Days (as such term
is hereinafter defined) immediately prior to such date, and
for purposes of computations made pursuant to Section
11(a)(iii) hereof, the "current market price" per share of
Common Stock on any date shall be deemed to be the average
of the daily closing prices per share of such Common Stock
for the ten (10) consecutive Trading Days immediately
following such date; provided, however, that in the event
that the current market price per share of the Common Stock
is determined during a period following the announcement by
the issuer of such Common Stock of (A) a dividend or
distribution on such Common Stock payable in shares of such
Common Stock or securities convertible into shares of such
Common Stock (other than the Rights), or (B) any
subdivision, combination or reclassification of such Common
Stock, and the ex-dividend date for such dividend or
distribution, or the record date for such subdivision,
combination or reclassification shall not have occurred
prior to the commencement of the requisite thirty (30)
Trading Day or ten (10) Trading Day period, as set forth
above, then, and in each such case, the "current market
price" shall be properly adjusted to take into account any
trading during the period prior to such ex-dividend date or
record date. The closing price for each day shall be the
last sale price, regular way, or, in case no such sale
takes place on such day, the average of the closing bid and
asked prices, regular way, in either case as reported in
the principal consolidated transaction reporting system
with respect to securities listed or admitted to trading on
the New York Stock Exchange or, if the shares of Common
Stock 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 shares of Common Stock are listed or admitted to
trading or, if the shares of Common Stock 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 the National Association of
Securities Dealers, Inc. Automated Quotation System
("NASDAQ") or such other system then in use, or, if on any
such date the shares of Common Stock 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 Common Stock selected by the Board of
Directors of the Company. If on any such date no market
maker is making a market in the Common Stock, the fair
value of such shares on such date as determined in good
faith by the Board of Directors of the Company shall be
used. The term "Trading Day" shall mean a day on which the
principal national securities exchange on which the shares
of Common Stock are listed or admitted to trading is open
for the transaction of business or, if the shares of Common
Stock are not listed or admitted to trading on any national
securities exchange, a Business Day. If the Common Stock
is not publicly held or not so listed or traded, "current
market price" per share 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 and shall be
conclusive for all purposes.
(e) Anything herein to the contrary
notwithstanding, no adjustment in the Purchase Price shall
be required unless such adjustment would require an
increase or decrease of at least one percent (1%) in the
Purchase Price; provided, however, that any adjustments
which by reason of this Section 11(e) are not required to
be made shall be carried forward and taken into account in
any subsequent adjustment. All calculations under this
Section 11 shall be made to the nearest cent or to the
nearest one ten-thousandth of a share of Common Stock.
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 (3) years from the date
of the transaction which mandates such adjustment, or (ii)
the Expiration Date.
(f) If as a result of an adjustment made
pursuant to Section 11(a)(ii) or Section 13(a) hereof, the
holder of any Right thereafter exercised shall become
entitled to receive any shares of capital stock other than
Common Stock, thereafter the number of such other shares so
receivable upon exercise of any Right and the Purchase
Price thereof shall be subject to adjustment from time to
time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to the Common
Stock contained in Sections 11(a), (b), (c), (e), (g), (h),
(i), (j), (k) and (m), and the provisions of Sections 7, 9,
10, 13 and 14 hereof with respect to the Common 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-halves of a
share of Common 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 (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-halves of a share of
Common Stock (calculated to the nearest one-ten-thousandth)
obtained by (i) multiplying (x) the number of one-halves of
a share covered by a Right immediately prior to this
adjustment, by (y) the Purchase Price in effect immediately
prior to such adjustment of the Purchase Price, and (ii)
dividing the product so obtained by the Purchase Price in
effect immediately after such adjustment of the Purchase
Price.
(i) The Company may elect on or after the date
of any adjustment of the Purchase Price to adjust the
number of Rights, in lieu of any adjustment in the number
of one-halves of a share of Common Stock purchasable upon
the exercise of a Right. Each of the Rights outstanding
after the adjustment in the number of Rights shall be
exercisable for the number of one-halves of a share of
Common 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-ten-thousandth) obtained by dividing the Purchase Price in
effect immediately prior to adjustment of the Purchase
Price by the Purchase Price in effect immediately after
adjustment of the Purchase Price. The Company shall make a
public announcement of its election to adjust the number of
Rights, indicating the record date for the adjustment, and,
if known at the time, the amount of the adjustment to be
made. This record date may be the date on which the
Purchase Price is adjusted or any day thereafter, but, if
the Rights Certificates have been issued, shall be at least
ten (10) days later than the date of the public
announcement. If Rights Certificates have been issued,
upon each adjustment of the number of Rights pursuant to
this Section 11(i), the Company shall, as promptly as
practicable, cause to be distributed to holders of record
of Rights Certificates on such record date Rights
Certificates evidencing, subject to Section 14 hereof, the
additional Rights to which such holders shall be entitled
as a result of such adjustment, or, at the option of the
Company, shall cause to be distributed to such holders of
record in substitution and replacement for the Rights
Certificates held by such holders prior to the date of
adjustment, and upon surrender thereof, if required by the
Company, new Rights Certificates evidencing all the Rights
to which such holders shall be entitled after such
adjustment. Rights Certificates so to be distributed shall
be issued, executed and countersigned in the manner
provided for herein (and may bear, at the option of the
Company, the adjusted Purchase Price) and shall be
registered in the names of the holders of record of Rights
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-halves of a share
of Common Stock issuable upon the exercise of the Rights,
the Rights Certificates theretofore and thereafter issued
may continue to express the Purchase Price per one-half of
a share and the number of one-halves of a share which were
expressed in the initial Rights Certificates issued
hereunder.
(k) Before taking any action that would cause an
adjustment reducing the Purchase Price below the then
stated value, if any, of the number of one-halves of a
share of Common Stock issuable upon exercise of the Rights,
the Company shall take any corporate action which may, in
the opinion of its counsel, be necessary in order that the
Company may validly and legally issue fully paid and
nonassessable shares of Common Stock at such adjusted
Purchase Price.
(l) In any case in which this Section 11 shall
require that an adjustment in the Purchase Price be made
effective as of a record date for a specified event, the
Company may elect to defer until the occurrence of such
event the issuance to the holder of any Right exercised
after such record date the number of one-halves of a share
of Common Stock and other capital stock or securities of
the Company, if any, issuable upon such exercise over and
above the number of one-halves of a share of Common 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 (fractional or otherwise) or securities upon the
occurrence of the event requiring such adjustment.
(m) Anything in this Section 11 to the contrary
notwithstanding, the Company shall be entitled to make such
reductions in the Purchase Price, in addition to those
adjustments expressly required by this Section 11, as and
to the extent that the Board of Directors of the Company,
in its good faith judgment, shall determine to be advisable
in order that any (i) consolidation or subdivision of the
Common Stock, (ii) issuance wholly for cash of any shares
of Common Stock at less than the current market price,
(iii) issuance wholly for cash of shares of Common Stock or
securities which by their terms are convertible into or
exchangeable for shares of Common Stock, (iv) stock
dividends or (v) issuance of rights, options or warrants
referred to in this Section 11, hereafter made by the
Company to holders of its Common Stock shall not be taxable
to such stockholders.
(n) The Company covenants and agrees that it
shall not, at any time after the Distribution Date, (i)
consolidate with any other Person (other than a Subsidiary
of the Company in a transaction which complies with Section
11(o) hereof), (ii) merge with or into any other Person
(other than a Subsidiary of the Company in a transaction
which complies with Section 11(o) hereof), or (iii) sell or
transfer (or permit any Subsidiary to sell or transfer), in
one transaction, or a series of related transactions,
assets or earning power aggregating more than 50% of the
assets or earning power of the Company and its Subsidiaries
(taken as a whole) to any other Person or Persons (other
than the Company and/or any of its Subsidiaries in one or
more transactions each of which complies with Section 11(o)
hereof), if (x) at the time of or immediately after such
consolidation, merger, sale or transfer 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 or (y) prior to,
simultaneously with or immediately after such
consolidation, merger, sale or transfer, the stockholders
of the Person who constitutes, or would constitute, the
"Principal Party" for purposes of Section 13(a) hereof
shall have received a distribution of Rights previously
owned by such Person or any of its Affiliates and
Associates.
(o) The Company covenants and agrees that, after
the Distribution Date, it will not, except as permitted by
Section 23 or Section 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 otherwise eliminate the benefits
intended to be afforded by the Rights.
(p) In the event that the Company shall at any
time after the Rights Dividend Declaration Date and prior
to the Distribution Date (i) declare a dividend on the
outstanding shares of Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding shares of
Common Stock, or (iii) combine the outstanding shares of
Common Stock into a smaller number of shares, the number of
Rights associated with each share of Common Stock then
outstanding, or issued or delivered thereafter but prior to
the Distribution Date, 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.
Section 12. Certificate of Adjusted Purchase
Price or Number of Shares. Whenever an adjustment is made
as provided in Section 11 and Section 13 hereof, the
Company shall (a) promptly prepare a certificate setting
forth such adjustment and a brief statement of the facts
accounting for such adjustment, (b) promptly file with the
Rights Agent, and with each transfer agent for the Common
Stock, a copy of such certificate, and (c) mail a brief
summary thereof to each holder of a Rights Certificate (or,
if prior to the Distribution Date, to each holder of a
certificate representing shares of Common Stock) in
accordance with Section 26 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 such adjustment unless and until it
shall have received such certificate.
Section 13. Consolidation, Merger or Sale or
Transfer of Assets or Earning Power. (a) In the event
that, following the Stock Acquisition Date, directly or
indirectly, (x) the Company shall consolidate with, or
merge with and into, any other Person (other than a
Subsidiary of the Company in a transaction which complies
with Section 11(o) hereof), and the Company shall not be
the continuing or surviving corporation of such
consolidation or merger, (y) any Person (other than a
Subsidiary of the Company in a transaction which complies
with Section 11(o) hereof) shall consolidate with, or merge
with or into, the Company, and the Company shall be the
continuing or surviving corporation of such consolidation
or merger and, in connection with such consolidation or
merger, all or part of the outstanding shares of Common
Stock shall be changed into or exchanged for stock or other
securities of any other Person or cash or any other
property, or (z) the Company shall sell or otherwise
transfer (or one or more of its Subsidiaries shall sell or
otherwise transfer), in one transaction or a series of
related transactions, assets or earning power aggregating
more than 50% of the assets or earning power of the Company
and its Subsidiaries (taken as a whole) to any Person or
Persons (other than the Company or any Subsidiary of the
Company in one or more transactions each of which complies
with Section 11(o) hereof), then, and in each such case
(except as may be contemplated by Section 13(d) hereof),
proper provision shall be made so that: (i) each holder of
a Right, except as provided in Section 7(e) hereof, shall
thereafter have the right to receive upon the exercise
thereof at the then current Purchase Price in accordance
with the terms of this Agreement, such number of validly
authorized and issued, fully paid, nonassessable 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 be equal to the result obtained by
(l) multiplying the then current Purchase Price by the
number of one-halves of a share of Common Stock for which a
Right is exercisable immediately prior to the first
occurrence of a Section 13 Event (or, if a Section
11(a)(ii) Event has occurred prior to the first occurrence
of a Section 13 Event, multiplying the number of such one-halves
of a share of Common Stock for which a Right was exercisable
immediately prior to the first occurrence of a Section 11(a)(ii)
Event by the Purchase Price in effect immediately prior to
such first occurrence), and dividing that product (which,
following the first occurrence of a Section 13 Event, shall
be referred to as the "Purchase Price" for each Right and
for all purposes of this Agreement) by (2) 50% of the current
market price (determined pursuant to Section 11(d)(i) hereof)
per share of the Common Stock of such Principal Party on the date
of consummation of such Section 13 Event; (ii) such Principal
Party shall thereafter be liable for, and shall assume, by
virtue of such Section 13 Event, all the obligations and
duties of the Company pursuant to this Agreement; (iii) the
term "Company" shall thereafter be deemed to refer to such
Principal Party, it being specifically intended that the
provisions of Section 11 hereof shall apply only to such
Principal Party following the first occurrence of a Section
13 Event; (iv) such Principal Party shall take such steps
(including, but not limited to, the reservation of a
sufficient number of shares of its Common Stock) in
connection with the 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 its shares of Common Stock thereafter
deliverable upon the exercise of the Rights; and (v) the
provisions of Section 11(a)(ii) hereof shall be of no
effect following the first occurrence of any Section 13
Event.
(b) "Principal Party" shall mean:
(i) in the case of any transaction described
in clause (x) or (y) of the first sentence of
Section 13(a), the Person that is the issuer of
any securities into which shares of Common Stock
of the Company are converted in such merger or
consolidation, and if no securities are so
issued, the Person that is the other party to
such merger or consolidation; and
(ii) in the case of any transaction
described in clause (z) of the first sentence of
Section 13(a), the Person that is the party
receiving the greatest portion of the assets or
earning power transferred pursuant to such
transaction or transactions;
provided, however, that in any such case, (1) if the Common
Stock of such Person is not at such time and has not been
continuously over the preceding twelve (12) month period
registered under Section 12 of the Exchange Act, and such
Person is a direct or indirect Subsidiary of another Person
the Common Stock of which is and has been so registered,
"Principal Party" shall refer to such other Person; and (2)
in case such Person is a Subsidiary, directly or
indirectly, of more than one Person, the Common Stocks of
two or more of which are and have been so registered,
"Principal Party" shall refer to whichever of such Persons
is the issuer of the Common Stock having the greatest
aggregate market value.
(c) The Company shall not consummate any such
consolidation, merger, sale or transfer unless the
Principal Party shall have a sufficient number of
authorized shares of its Common Stock which have not been
issued or reserved for issuance to permit the exercise in
full of the Rights in accordance with this Section 13 and
unless prior thereto the Company and such Principal Party
shall have executed and delivered to the Rights Agent a
supplemental agreement providing for the terms set forth in
paragraphs (a) and (b) of this Section 13 and further
providing that, as soon as practicable after the date of
any consolidation, merger, sale or transfer of assets
mentioned in paragraph (a) of this Section 13, the
Principal Party will:
(i) prepare and file a registration
statement under the Act, with respect to the
Rights and the securities purchasable upon
exercise of the Rights on an appropriate form,
and will use its best efforts to cause such
registration statement to (A) become effective as
soon as practicable after such filing and (B)
remain effective (with a prospectus at all times
meeting the requirements of the Act) until the
Expiration Date; and
(ii) will deliver to holders of the Rights
historical financial statements for the Principal
Party and each of its Affiliates which comply in
all respects with the requirements for
registration on Form 10 under the Exchange Act.
The provisions of this Section 13 shall similarly apply to
successive mergers or consolidations or sales or other
transfers. In the event that a Section 13 Event shall
occur at any time after the occurrence of a Section
11(a)(ii) Event, the Rights which have not theretofore been
exercised shall thereafter become exercisable in the manner
described in Section 13(a).
Section 14. Fractional Rights and Fractional
Shares. (a) The Company shall not be required to issue
fractions of Rights or to distribute Rights Certificates
which evidence fractional Rights. In lieu of such
fractional Rights, there shall be paid to the registered
holders of the Rights Certificates with regard to which
such fractional Rights would otherwise be issuable, an
amount in cash equal to the same fraction of the current
market value of a whole Right. For purposes of this
Section 14(a), the current market value of a whole Right
shall be the closing price of the Rights for the Trading
Day immediately prior to the date on which such fractional
Rights would have been otherwise issuable. The closing
price of the Rights 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 to
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 shares of Common Stock upon exercise of the
Rights or to distribute certificates which evidence
fractional shares of Common Stock. In lieu of fractional
shares of Common Stock, the Company shall pay to the
registered holders of Rights Certificates at the time such
Rights are exercised as herein provided an amount in cash
equal to the same fraction of the current market value of
one share of Common Stock. For purposes of this Section
14(b), the current market value of one share of Common
Stock shall be the closing price of one share of Common
Stock (as determined pursuant to Section 11(d)(ii) hereof)
for the Trading Day immediately prior to the date of such
exercise.
(c) The holder of a Right by the acceptance of
the Rights expressly waives his right to receive any
fractional Rights or any fractional shares upon exercise of
a Right.
Section 15. Rights of Action. All rights of
action in respect of this Agreement, other than rights of
action vested in the Rights Agent pursuant to Section 18
hereof, are vested in the respective registered holders of
the Rights Certificates (and, prior to the Distribution
Date, the registered holders of the Common Stock); and any
registered holder of any Rights 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
Rights Certificate (or, prior to the Distribution Date, of
the Common Stock), may, in his own behalf and for his own
benefit, enforce, and may institute and maintain any suit,
action or proceeding against the Company to enforce, or
otherwise act in respect of, his or her right to exercise
the Rights evidenced by such Rights Certificate in the
manner provided in such Rights Certificate and in this
Agreement. Without limiting the foregoing or any remedies
available to the holders of Rights, it is specifically
acknowledged that the holders of Rights would not have an
adequate remedy at law for any breach of this Agreement and
shall be entitled to specific performance of the
obligations hereunder and injunctive relief against actual
or threatened violations of the obligations hereunder of
any Person subject to this Agreement.
Section 16. Agreement of Rights Holders. Every
holder of a Right by accepting the same consents and agrees
with the Company and the Rights Agent and with every holder
of a Right that:
(a) prior to the Distribution Date, the Rights
will be transferable only in connection with the transfer
of Common Stock;
(b) after the Distribution Date, the Rights
Certificates are transferable only on the registry books of
the Rights Agent if surrendered at the principal office or
offices of the Rights Agent designated for such purposes,
duly endorsed or accompanied by a proper instrument of
transfer and with the appropriate forms and certificates
fully executed;
(c) subject to Section 6(a) and Section 7(f)
hereof, the Company and the Rights Agent may deem and treat
the person in whose name a Rights Certificate (or, prior to
the Distribution Date, the associated 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 Rights
Certificates or the associated Common Stock certificates
made by anyone other than the Company or the Rights Agent)
for all purposes whatsoever, and neither the Company nor
the Rights Agent, subject to the last sentence of Section
7(e) hereof, shall be required to 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
reasonable efforts to have any such order, decree or ruling
lifted or otherwise overturned as soon as possible.
Section 17. Rights Certificate Holder Not Deemed
a Stockholder. No holder, as such, of any Rights
Certificate shall be entitled to vote, receive dividends or
be deemed for any purpose to be the holder of the number of
one-halves of a share of Common Stock or any other
securities of the Company which may at any time be issuable
on the exercise of the Rights represented thereby, nor
shall anything contained herein or in any Rights
Certificate be construed to confer upon the holder of any
Rights 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 Section 25 hereof), or to receive dividends or
subscription rights, or otherwise, until the Right or
Rights evidenced by such Rights Certificate shall have been
exercised 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 disbursements and
other disbursements incurred in the administration and
execution of this Agreement and the exercise and
performance of its duties hereunder.
(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
administration of this Agreement in reliance upon any
Rights Certificate or certificate for 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.
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 corporate trust
or stock transfer business of the Rights Agent or any
successor Rights Agent, shall be the successor to the
Rights Agent under this Agreement without the execution or
filing of any paper or any further act on the part of any
of the parties hereto; provided, however, 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 Rights Certificates shall have been countersigned
but not delivered, any such successor Rights Agent may
adopt the countersignature of a predecessor Rights Agent
and deliver such Rights Certificates so countersigned; and
in case at the time any of the Rights Certificates shall
not have been countersigned, any successor Rights Agent may
countersign such Rights Certificates either in the name of
the predecessor or in the name of the successor Rights
Agent; and in all such cases such Rights Certificates shall
have the full force provided in the Rights 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 Rights
Certificates shall have been countersigned but not
delivered, the Rights Agent may adopt the countersignature
under its prior name and deliver Rights Certificates so
countersigned; and in case, at that time, any of the Rights
Certificates shall not have been countersigned, the Rights
Agent may countersign such Rights Certificates either in
its prior name or in its changed name; and in all such
cases such Rights Certificates shall have the full force
provided in the Rights 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 Rights
Certificates, by their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal
counsel (who may be legal counsel for the Company), and the
opinion of such counsel shall be full and complete
authorization and protection to the Rights Agent as to any
action taken or omitted by it in good faith and in
accordance with such opinion.
(b) Whenever in the performance of its duties
under this Agreement the Rights Agent shall deem it
necessary or desirable that any fact or matter (including,
without limitation, the identity of any Acquiring Person
and the determination of "current market price") 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 President, any
Vice President, the Treasurer, any Assistant Treasurer, the
Secretary or any Assistant Secretary of the Company and
delivered to the Rights Agent; and such certificate shall
be full authorization to the Rights Agent for any action
taken or suffered in good faith by it under the provisions
of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder
only for its own gross 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 recital
contained in this Agreement or in the Rights Certificates
or be required to verify the same (except as to its
countersignature on such Rights Certificates), but all such
statements and recitals are and shall be deemed to have
been made by the Company only.
(e) The Rights Agent shall not be under any
responsibility in respect of the validity of this Agreement
or the execution and delivery hereof (except the due
execution hereof by the Rights Agent) or in respect of the
validity or execution of any Rights 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 Rights Certificate;
nor shall it be responsible for any adjustment required
under the provisions of Section 11, Section 13 or
Section 24 hereof or responsible for the manner, method or
amount of any such adjustment or the ascertaining of the
existence of facts that would require any such adjustment
(except with respect to the exercise of Rights evidenced by
Rights Certificates after actual notice of any such
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 Common Stock to be issued
pursuant to this Agreement or any Rights Certificate or as
to whether any shares of Common Stock will, when so 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 the President, any
Vice President, the Secretary, any Assistant Secretary, the
Treasurer or any Assistant Treasurer of the Company, and to
apply to such officers for advice or instructions in
connection with its duties, and it shall not be liable for
any action taken or suffered to be taken by it in good
faith in accordance with instructions of any such officer.
(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, however, that reasonable
care was exercised in the selection and continued
employment thereof.
(j) No provision of this Agreement shall require
the Rights Agent to expend or risk its own funds or
otherwise incur any financial liability in the performance
of any of its duties hereunder or in the exercise of its
rights if there shall be reasonable grounds for believing
that repayment of such funds or adequate indemnification
against such risk or liability is not reasonably assured to
it.
(k) If, with respect to any Rights Certificate
surrendered to the Rights Agent for exercise or transfer,
the certificate attached to the form of assignment or form
of election to purchase, as the case may be, has either not
been completed or indicates an affirmative response to
clause 1 and/or 2 thereof, the Rights Agent shall not take
any further action with respect to such requested exercise
or transfer without first consulting with the Company.
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 thirty
(30) days' notice in writing mailed to the Company, and to
each transfer agent of the Common Stock, by registered or
certified mail, and to the holders of the Rights
Certificates by first-class mail. The Company may remove
the Rights Agent or any successor Rights Agent upon thirty
(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, by registered or
certified mail, and to the holders of the Rights
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 thirty (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 Rights Certificate (who shall, with such notice, submit
his or her Rights Certificate for inspection by the
Company), then any registered holder of any Rights
Certificate may apply to any court of competent
jurisdiction for the appointment of a new Rights Agent.
Any successor Rights Agent, whether appointed by the
Company or by such a court, shall be a corporation
organized and doing business under the laws of the United
States or of the State of Illinois or New York (or of any
other state of the United States so long as such
corporation is authorized to do business as a banking
institution in the State of Illinois or New York), in good
standing, having an office or agency in the State of
Illinois or 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
$100,000,000. 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 reasonable
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, and mail a notice thereof in
writing to the registered holders of the Rights
Certificates. Failure to give any notice provided for in
this Section 21 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 Rights Certificates.
Notwithstanding any of the provisions of this Agreement or
of the Rights to the contrary, the Company may, at its
option, issue new Rights Certificates evidencing Rights in
such form as may be approved by its Board of Directors to
reflect any adjustment or change in the Purchase Price and
the number or kind or class of shares or other securities
or property purchasable under the Rights Certificates made
in accordance with the provisions of this Agreement. In
addition, in connection with the issuance or sale of shares
of Common Stock following the Distribution Date and prior
to the redemption or expiration of the Rights, the Company
(a) shall, with respect to shares of Common Stock so issued
or sold pursuant to the exercise of stock options or under
any employee plan or arrangement, granted or awarded prior
to the Distribution Date, or upon the exercise, conversion
or exchange of securities hereinafter issued by the
Company, and (b) may, in any other case, if deemed
necessary or appropriate by the Board of Directors of the
Company, issue Rights Certificates representing an
appropriate number of Rights in connection with such
issuance or sale; provided, however, that (i) no such
Rights Certificate shall be issued if, and to the extent
that, the Company shall be advised by counsel that such
issuance would create a significant risk of material
adverse tax consequences to the Company or the Person to
whom such Rights Certificate would be issued, and (ii) no
such Rights Certificate shall be issued if, and to the
extent that, appropriate adjustment shall otherwise have
been made in lieu of the issuance thereof.
Section 23. Redemption and Termination. (a)
The Board of Directors of the Company may, at its option,
at any time prior to the earlier of (i) the Close of
Business on the tenth day following the Stock Acquisition
Date (or, if the Stock Acquisition Date shall have occurred
prior to the Record Date, the Close of Business on the
tenth day following the Record Date), or (ii) the Final
Expiration Date, redeem all but not less than all of the
then outstanding Rights at a redemption price of $.01 per
Right, as such amount may be appropriately adjusted to
reflect any stock split, stock dividend or similar
transaction occurring after the date hereof (such
redemption price being hereinafter referred to as the
"Redemption Price"). Notwithstanding anything contained in
this Agreement to the contrary, the Rights shall not be
exercisable after the first occurrence of a Section
11(a)(ii) Event until such time as the Company's right of
redemption hereunder has expired. The Company may, at its
option, pay the Redemption Price in cash, shares of Common
Stock (based on the "current market price", as defined in
Section 11(d)(i) hereof, of the Common Stock at the time of
redemption) or any other form of consideration deemed
appropriate by the Board of Directors. The redemption of
the Rights by the Board of Directors may be made effective
at such time, on such basis and with such conditions as the
Board of Directors in its sole discretion may establish.
(b) Immediately upon the action of the Board of
Directors of the Company ordering the redemption of the
Rights, evidence of which shall have been filed with the
Rights Agent 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 for each Right so held.
Promptly after the action of the Board of Directors
ordering the redemption of the Rights, the Company shall
give notice of such redemption to the Rights Agent and the
holders of the then outstanding Rights by mailing such
notice to all such holders at each holder's last address as
it appears 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 will 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 any Person becomes an Acquiring Person, exchange all
or part of the then outstanding and exercisable Rights
(which shall not include Rights that have become void
pursuant to the provisions of Section 7(e) hereof) for
shares of 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 after the date hereof (such exchange ratio being
hereinafter referred to as the "Exchange Ratio").
Notwithstanding the foregoing, the Board of Directors shall
not be empowered to effect such exchange at any time after
any Person (other than the Company, any Subsidiary of the
Company, any employee benefit plan of the Company or of any
Subsidiary of the Company, or any Person organized,
appointed or established by the Company for or pursuant to
the terms of any such plan), together with all Affiliates
and Associates of such Person, becomes the Beneficial Owner
of fifty percent (50%) or more of the Common Stock then
outstanding.
(b) Immediately upon the action of the Board of
Directors of the Company ordering the exchange of any
Rights pursuant to subsection (a) of this Section 24 and
without any further action and without any notice, the
right to exercise such Rights shall terminate and the only
right thereafter of a holder of such Rights shall be to
receive that number of 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 exchange; provided, however, that the failure
to give, or any defect in, such notice shall not affect the
validity of such exchange. The Company promptly shall mail
a notice of any such exchange to all of the holders of such
Rights at their last addresses as they appear upon the
registry books of the Rights Agent. Any notice which is
mailed in the manner herein provided shall be deemed given,
whether or not the holder receives the notice. Each such
notice of exchange will state the method by which the
exchange of the Common 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 will
be effected pro rata based on the number of Rights (other
than Rights which have become void pursuant to the
provisions of Section 7(e) hereof) held by each holder of
Rights.
(c) In the event that there shall not be
sufficient shares of Common Stock issued but not
outstanding or authorized but unissued to permit any
exchange of Rights as contemplated in accordance with this
Section 24, the Company shall take all such actions as may
be necessary to authorize additional shares of Common Stock
for issuance upon exchange of the Rights.
(d) 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. In lieu of such fractional shares of Common Stock,
there shall be paid to the registered holders of the Rights
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. For the purposes of this
subsection (e), the current market value of a whole share
of Common Stock shall be the closing price of a share of
Common Stock (as determined pursuant to the second sentence
of Section 11(d)(i) hereof) for the Trading Day immediately
prior to the date of exchange pursuant to this Section 24.
Section 25. Notice of Certain Events. (a) In
case the Company shall propose, at any time after the
Distribution Date, (i) to pay any dividend payable in stock
of any class to the holders of Common Stock or to make any
other distribution to the holders of Common Stock (other
than a regular quarterly cash dividend out of earnings or
retained earnings of the Company), or (ii) to offer to the
holders of Common Stock rights or warrants to subscribe for
or to purchase any additional shares of Common Stock or
shares of stock of any class or any other securities,
rights or options, or (iii) to effect any reclassification
of its Common Stock (other than a reclassification
involving only the subdivision of outstanding shares of
Common Stock), or (iv) to effect any consolidation or
merger into or with any other Person (other than a
Subsidiary of the Company in a transaction which complies
with Section 11(o) hereof), or to effect any sale or other
transfer (or to permit one or more of its Subsidiaries to
effect any sale or other transfer), in one transaction or a
series of related transactions, of more than 50% of the
assets or earning power of the Company and its Subsidiaries
(taken as a whole) to any other Person or Persons (other
than the Company and/or any of its Subsidiaries in one or
more transactions each of which complies with Section 11(o)
hereof), or (v) to effect the liquidation, dissolution or
winding up of the Company, then, in each such case, the
Company shall give to each holder of a Rights Certificate,
to the extent feasible and 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, distribution of rights or warrants, or the date
on which such reclassification, consolidation, merger,
sale, transfer, liquidation, dissolution, or winding up is
to take place and the date of participation therein by the
holders of the shares of Common 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
twenty (20) days prior to the record date for determining
holders of the shares of Common Stock for purposes of such
action, and in the case of any such other action, at least
twenty (20) days prior to the date of the taking of such
proposed action or the date of participation therein by the
holders of the shares of Common Stock, whichever shall be
the earlier.
(b) In case the event set forth in Section
11(a)(ii) hereof shall occur, then, in any such case, the
Company shall as soon as practicable thereafter give to
each holder of a Rights Certificate, to the extent feasible
and in accordance with Section 26 hereof, a notice of the
occurrence of such event, which shall specify the event and
the consequences of the event to holders of Rights under
Section 11(a)(ii) hereof.
Section 26. Notices. Notices or demands
authorized by this Agreement to be given or made by the
Rights Agent or by the holder of any Rights 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:
St. Xxxxxx Light & Power Company
000 Xxxxxxx Xxxxxx
Xx. Xxxxxx, Xxxxxxxx 00000
Attention: Secretary
Subject to the provisions of Section 21, any notice or
demand authorized by this Agreement to be given or made by
the Company or by the holder of any Rights 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:
Xxxxxx Trust and Savings Bank
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Corporate Agencies
Administration Division
Notices or demands authorized by this Agreement to be given
or made by the Company or the Rights Agent to the holder of
any Rights Certificate (or, if prior to the Distribution
Date, to the holder of certificates representing shares of
Common Stock) shall be sufficiently given or made if sent
by first-class mail, postage prepaid, addressed to such
holder at the address of such holder as shown on the
registry books of the Company.
Section 27. Supplements and Amendments. The
Company may from time to time supplement or amend this
Agreement without the approval of any holders of Rights
Certificates in order to cure any ambiguity, to correct or
supplement any provision contained herein which may be
defective or inconsistent with any other provision herein,
or to make any other provisions with respect to the Rights
which the Company may deem necessary or desirable, any such
supplement or amendment to be evidenced by a writing signed
by the Company and the Rights Agent; provided, however,
that from and after such time as any Person becomes an
Acquiring Person, this Agreement shall not be amended in
any manner which would adversely affect the interests of
the holders of Rights. Prior to the Distribution Date, the
interest of the holders of Rights shall be deemed
coincident with the interests of the holders of Common
Stock. Without limiting the foregoing, the Company may at
any time prior to such time as any Person becomes an
Acquiring Person amend this Agreement to lower the
thresholds set forth in Sections 1(a) and 3(a) to a
percentage that (subject to exceptions for specified
Persons or Groups excepted from the definition of
"Acquiring Person") is not less than the greater of (i) the
sum of .001% and the largest percentage of the outstanding
shares of Common Stock then known by the Company to be
beneficially owned by any Person (other than the Company,
any Subsidiary of the Company, any employee benefit plan of
the Company or of any Subsidiary of the Company, any Person
organized, appointed or established by the Company for or
pursuant to the terms of any such plan or, to the extent
excepted from the definition of "Acquiring Person", other
Specified Persons or Groups) and (ii) 10.0%.
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. Determination and Actions by the
Board of Directors, etc. 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)(l)(i) of the General
Rules and Regulations under the Exchange Act. The Board of
Directors of the Company shall have the exclusive power and
authority to administer this Agreement and to exercise all
rights and powers specifically granted to the Board of
Directors of the Company or to the Company, or as may be
necessary or advisable in the administration of this
Agreement, including, without limitation, the right and
power to (i) interpret the provisions of this Agreement,
and (ii) make all determinations deemed necessary or
advisable for the administration of this Agreement
(including, but not limited to, a determination to redeem
or not redeem the Rights or to amend this Agreement). All
such actions, calculations, interpretations and
determinations (including, for purposes of clause (y)
below, all omissions with respect to the foregoing) which
are done or made by the Board of Directors of the Company
in good faith, shall (x) be final, conclusive and binding
on the Company, the Rights Agent, the holders of the Rights
and all other parties, and (y) not subject the Board of
Directors of the Company to any liability to the holders of
the Rights.
Section 30. Benefits of this Agreement. Nothing
in this Agreement shall be construed to give to any Person
other than the Company, the Rights Agent and the registered
holders of the Rights Certificates (and, prior to the
Distribution Date, registered holders of 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 Rights Certificates (and, prior
to the Distribution Date, registered holders of the Common
Stock).
Section 31. Transition. This Agreement and the
Rights granted hereby shall be deemed effective on the
Close of Business on December 4, 1996, contemporaneously
with the expiration of the 1986 Rights Agreement and the
1986 Rights. If, pursuant to their respective terms, each
of this Agreement and the 1986 Rights Agreement are
effective during any period of time, then this Agreement
and the Rights granted hereunder shall control and the 1986
Rights Agreement and the 1986 Rights granted thereunder
shall be deemed to have expired. Notwithstanding the
foregoing, the 1986 Rights Agreement and the 1986 Rights
shall remain in effect so long as required by the 1986
Rights Agreement.
Section 32. 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; provided, however, that notwithstanding
anything in this Agreement to the contrary, if any such
term, provision, covenant or restriction is held by such
court or authority to be invalid, void or unenforceable and
the Board of Directors of the Company determines in its
good faith judgment that severing the invalid language from
this Agreement would adversely affect the purpose or effect
of this Agreement, the right of redemption set forth in
Section 23 hereof shall be reinstated and shall not expire
until the Close of Business on the tenth day following the
date of such determination by the Board of Directors of the
Company.
Section 33. Governing Law. This Agreement, each
Right and each Rights Certificate issued hereunder shall be
deemed to be a contract made under the laws of the State of
Missouri and for all purposes shall be governed by and
construed in accordance with the laws of such State
applicable to contracts made and to be performed entirely
within such State.
Section 34. Counterparts. This Agreement may be
executed in any number of counterparts and each of such
counterparts shall for all purposes be deemed to be an
original, and all such counterparts shall together
constitute but one and the same instrument.
Section 35. Descriptive Headings. Descriptive
headings of the several Sections of this Agreement are
inserted for convenience only and shall not control or
affect the meaning or construction of any of the provisions
hereof.
IN WITNESS WHEREOF, the parties hereto have
caused this Agreement to be duly executed and their
respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
Attest: ST. XXXXXX LIGHT & POWER COMPANY
By:/s/Xxxx Xxxxx By:/s/Xxxxx Xxxxxxxxxxx
Name: Xxxx Xxxxx Name: Xxxxx Xxxxxxxxxxx
Title: Vice President - Title: President and Chief
General Counsel & Executive Officer
Secretary
Attest: XXXXXX TRUST AND SAVINGS BANK
By:/s/Xxxxx X. Xxxxxxxx By:/s/Xxxxxx X. Xxxxx
Name: Xxxxx X. Xxxxxxxx Name: Xxxxxx X. Xxxxx
Title: Vice President Title: Vice President
Exhibit A
[Form of Rights Certificate]
Certificate No. R- __________ Rights
NOT EXERCISABLE AFTER DECEMBER 4, 2006 OR EARLIER IF
REDEEMED BY THE COMPANY. THE RIGHTS ARE SUBJECT TO
REDEMPTION, AT THE OPTION OF THE COMPANY, AT $.01 PER RIGHT
ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER
CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN
ACQUIRING PERSON (AS SUCH TERM IS DEFINED IN THE RIGHTS
AGREEMENT) AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY
BECOME NULL AND VOID. [THE RIGHTS REPRESENTED BY THIS
RIGHTS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A
PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN
AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH
TERMS ARE DEFINED IN THE RIGHTS AGREEMENT). ACCORDINGLY,
THIS RIGHTS CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY
MAY BECOME NULL AND VOID IN THE CIRCUMSTANCES SPECIFIED IN
SECTION 7(e) OF SUCH AGREEMENT.]*
__________________
* The portion of the legend in brackets shall be inserted
only if applicable and shall replace the preceding
sentence.
Rights Certificate
ST. XXXXXX LIGHT & POWER 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 Rights Agreement, dated as of September __, 1996 (the
"Rights Agreement"), between St. Xxxxxx Light & Power
Company, a Missouri corporation (the "Company"), and Xxxxxx
Trust and Savings Bank, an Illinois banking association
(the "Rights Agent"), to purchase from the Company at any
time prior to 5:00 P.M. (Chicago time) on December 4, 2006
at the office or offices of the Rights Agent designated for
such purpose, or its successors as Rights Agent, one-half
of a fully paid, nonassessable share of common stock,
without par value (the "Common Stock"), of the Company, at
a purchase price of $35 per one-half of a share (the
"Purchase Price"), upon presentation and surrender of this
Rights Certificate with the Form of Election to Purchase
and related Certificate duly executed. The number of
Rights evidenced by this Rights Certificate (and the number
of shares which may be purchased upon exercise thereof) set
forth above, and the Purchase Price per share set forth
above, are the number and Purchase Price as of December 4,
1996, based on the Common Stock as constituted at such
date. The Company reserves the right to require prior to
the occurrence of a Triggering Event (as such term is
defined in the Rights Agreement) that a number of Rights be
exercised so that only whole shares of Common Stock will be
issued.
Upon the occurrence of a Section 11(a)(ii) Event
(as such term is defined in the Rights Agreement), if the
Rights evidenced by this Rights Certificate are
beneficially owned by (i) an Acquiring Person or an
Affiliate or Associate of any such Acquiring Person (as
such terms are defined in the Rights Agreement), (ii) a
transferee of any such Acquiring Person, Associate or
Affiliate, or (iii) under certain circumstances specified
in the Rights Agreement, a transferee of a person who,
after such transfer, became an Acquiring Person or an
Affiliate or Associate of such Person, such Rights shall
become null and void and no holder hereof shall have any
right with respect to such Rights from and after the
occurrence of such Section 11(a)(ii) Event.
As provided in the Rights Agreement, the Purchase
Price and the number and kind of shares of Common Stock or
other securities which may be purchased upon the exercise
of the Rights evidenced by this Rights Certificate are
subject to modification and adjustment upon the happening
of certain events, including Triggering Events.
This Rights 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 Rights
Certificates, which limitations of rights include the
temporary suspension of the exercisability of such Rights
under the specific circumstances set forth in the Rights
Agreement. Copies of the Rights Agreement are on file at
the office of the Rights Agent and are also available upon
written request to the Rights Agent.
This Rights Certificate, with or without other
Rights Certificates, upon surrender at the principal office
or offices of the Rights Agent designated for such purpose,
may be exchanged for another Rights Certificate or Rights
Certificates of like tenor and date evidencing Rights
entitling the holder to purchase a like aggregate number of
one-halves of a share of Common Stock as the Rights
evidenced by the Rights Certificates surrendered shall have
entitled such holder to purchase. If this Rights
Certificate shall be exercised in part, the holder shall be
entitled to receive upon surrender hereof another Rights
Certificate or Rights Certificates for the number of whole
Rights not exercised.
Subject to the provisions of the Rights
Agreement, the Rights evidenced by this Certificate may, in
each case at the option of the Company, be (i) redeemed by
the Company at its option at a redemption price of $.01 per
Right or (ii) exchanged in whole or in part for shares of
Common Stock or other securities of the Company.
Immediately upon the action of the Board of Directors of
the Company authorizing redemption, the Rights will
terminate and the only right of the holders of Rights will
be to receive the redemption price.
No fractional shares of Common Stock will be
issued upon the exercise of any Right or Rights evidenced
hereby, but in lieu thereof a cash payment will be made, as
provided in the Rights Agreement.
No holder of this Rights Certificate shall be
entitled to vote or receive dividends or be deemed for any
purpose the holder of shares of Common Stock or of any
other securities of the Company which may at any time be
issuable on the exercise hereof, nor shall anything
contained in the Rights Agreement or herein be construed to
confer upon the holder hereof, as such, any of the rights
of a stockholder of the Company or any right to vote for
the election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold
consent to any corporate action, or, to receive notice of
meetings 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 Rights Certificate shall have been
exercised as provided in the Rights Agreement.
This Rights Certificate shall not be valid or
obligatory for any purpose until it shall have been
countersigned manually or by facsimile signature by the
Rights Agent.
WITNESS the facsimile signature of the proper
officers of the Company and its corporate seal.
Dated as of __________, 19__
ATTEST: ST. XXXXXX LIGHT & POWER COMPANY
___________ By:________________________
Secretary Name:
Title:
Countersigned:
XXXXXX TRUST AND SAVINGS BANK
By:________________________
Authorized Signature
[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Rights Certificate.)
FOR VALUE RECEIVED
_______________________________________________________
hereby sells, assigns and transfers unto
_______________________________________________________
(Please print name and address of transferee)
this Rights Certificate, together with all right, title and
interest therein, and does hereby irrevocably constitute
and appoint __________ Attorney, to transfer the within
Rights Certificate on the books of the within-named
Company, with full power of substitution.
Dated: ___________________, ____
_______________________________________
Signature
Signature Guaranteed:
Certificate
The undersigned hereby certifies by checking the
appropriate boxes that:
(1) this Rights Certificate [ ] is [ ] is
not being sold, assigned and transferred by or on
behalf of a Person who is or was an Acquiring
Person or an Affiliate or Associate of an
Acquiring Person (as such terms are defined
pursuant to the Rights Agreement);
(2) after due inquiry and to the best
knowledge of the undersigned, it [ ] did [ ] did
not acquire the Rights evidenced by this Rights
Certificate from any Person who is, was or
subsequently became an Acquiring Person or an
Affiliate or Associate of an Acquiring Person.
Dated: __________, ____
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Assignment and
Certificate must correspond to the name as written upon the
face of this Rights Certificate in every particular,
without alteration or enlargement or any change whatsoever.
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to
exercise Rights represented by the
Rights Certificate.)
TO: ST. XXXXXX LIGHT & POWER COMPANY
The undersigned hereby irrevocably elects to
exercise ______ Rights represented by this Rights
Certificate to purchase the shares of Common Stock issuable
upon the exercise of the Rights (or such other securities
of the Company or of any other person which may be issuable
upon the exercise of the Rights) and requests that
certificates for such shares (or other securities) be
issued in the name of and delivered to:
Please insert social security
or other identifying number
___________________________________________________________
(Please print name and address)
___________________________________________________________
If such number of Rights shall not be all the
Rights evidenced by this Rights Certificate, a new Rights
Certificate for the balance of such Rights shall be
registered in the name of and delivered to:
Please insert social security
or other identifying number
___________________________________________________________
(Please print name and address)
___________________________________________________________
Dated: _____________, ____
Signature
Signature Guaranteed:
Certificate
The undersigned hereby certifies by checking the
appropriate boxes that:
(1) the Rights evidenced by this Rights
Certificate [ ] are [ ] are not being exercised by or
on behalf of a Person who is or was an Acquiring
Person or an Affiliate or Associate of an Acquiring
Person (as such terms are defined pursuant to the
Rights Agreement);
(2) after due inquiry and to the best
knowledge of the undersigned, it [ ] did [ ] did not
acquire the Rights evidenced by this Rights
Certificate from any Person who is, was or became an
Acquiring Person or an Affiliate or Associate of an
Acquiring Person.
Dated: ______________, ___ __________________________
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Election to
Purchase and Certificate must correspond to the name as
written upon the face of this Rights Certificate in every
particular, without alteration or enlargement or any change
whatsoever.
Exhibit B
SUMMARY OF RIGHTS TO PURCHASE COMMON STOCK
On September 18, 1996, the Board of Directors of
St. Xxxxxx Light & Power Company (the "Company") declared a
dividend distribution of one Right for each outstanding
share of the Company's common stock, without par value
share ("Common Stock"), to stockholders of record at the
close of business on December 4, 1996. Each Right entitles
the registered holder to purchase from the Company one-half
of a share of Common Stock at a purchase price of $35 per
one-half of a share (the "Purchase Price"), subject to
adjustment. The description and terms of the Rights are
set forth in a Rights Agreement (the "Rights Agreement")
dated as of September __, 1996 between the Company and
Xxxxxx Trust and Savings Bank, as Rights Agent.
Initially, the Rights will be attached to all
Common Stock certificates representing shares then
outstanding, and no separate Rights certificates will be
distributed. The Rights will separate from the Common
Stock and the Distribution Date will occur upon the earlier
of (i) 10 days following a public announcement that a
person or group of affiliated or associated persons has
acquired, or obtained the right to acquire, beneficial
ownership of 15% or more of the outstanding shares of
Common Stock (the "Stock Acquisition Date"), or (ii) 10
business days following the commencement of a tender offer
or exchange offer, which, if consummated, would result in a
person or group beneficially owning 15% or more of such
outstanding shares of Common Stock.
Until the Distribution Date, (i) the Rights will
be evidenced by the Common Stock certificates and will be
transferred with and only with such Common Stock
certificates, (ii) new Common Stock certificates issued
after December 4, 1996 will contain a notation
incorporating the Rights Agreement by reference and (iii)
the surrender for transfer of any certificates for Common
Stock outstanding will also constitute the transfer of the
Rights associated with the Common Stock represented by such
certificate.
Pursuant to the Rights Agreement, the Company
reserves the right to require prior to the occurrence of a
Triggering Event (as defined below) that, upon any exercise
of Rights, a number of Rights be exercised so that only
whole shares of Common Stock will be issued.
The Rights are not exercisable until the
Distribution Date and will expire at the close of business
on December 4, 2006, unless earlier redeemed by the Company
as described below.
As soon as practicable after the Distribution
Date, Rights certificates will be mailed to holders of
record of the Common Stock as of the close of business on
the Distribution Date and, thereafter, the separate Rights
certificates alone will represent the Rights. Except as
otherwise provided in the Rights Agreement, only shares of
Common Stock issued prior to the Distribution Date will be
issued with Rights.
In the event that, at any time following the
Distribution Date, a person or group becomes the beneficial
owner of 15% or more of the then outstanding shares of
Common Stock (an "Acquiring Person"), each holder of a
Right will thereafter have the right to receive, upon
exercise, Common Stock having a value equal to two times
the exercise price of the Right. If an insufficient number
of shares of Common Stock is authorized for issuance, then
the Board would be required to substitute cash, property or
other securities of the Company for the Common Stock.
Notwithstanding any of the foregoing, following the
occurrence of the event set forth in this paragraph, all
rights that are, or (under certain circumstances specified
in the Rights Agreement) were, beneficially owned by any
Acquiring Person will be null and void. However, Rights
are not exercisable following the occurrence of the event
set forth in this paragraph until such time as the Rights
are no longer redeemable by the Company as set forth below.
For example, at an exercise price of $35 per
Right, each Right not owned by an Acquiring Person (or by
certain related parties) following an event set forth in
the preceding paragraph would entitle its holder to
purchase $70 worth of Common Stock (or other consideration,
as noted above) for $35. Assuming that the Common Stock
had a per share value of $17.50 at such time, the holder of
each valid Right would be entitled to purchase eight one-half
shares (or four whole shares) of Common Stock for $35.
In the event that, at any time following the
Stock Acquisition Date, (i) the Company is acquired in a
merger or other business combination transaction in which
the Company is not the surviving corporation, or (ii) 50%
or more of the Company's assets or earning power is sold or
transferred, each holder of a Right (except Rights which
previously have been voided as set forth above) shall
thereafter have the right to receive, upon exercise, common
stock of the acquiring company having a value equal to two
times the exercise price of the Right. The events set
forth in this paragraph and in the second preceding
paragraph are referred to as the "Triggering Events." In
addition, the Board of Directors may direct that the Rights
be exchanged, in whole or in part, for shares of Common
Stock.
The purchase price payable, and the number of
one-halves of shares of Common Stock or other securities or
property issuable, upon exercise of the Rights are subject
to adjustment from time to time to prevent dilution (i) in
the event of stock dividend on, or a subdivision,
combination or reclassification of, the Common Stock, (ii)
if holders of the Common Stock are granted certain rights
or warrants to subscribe for Common Stock or convertible
securities at less than the current market price of the
Common Stock, or (iii) upon the distribution to holders of
the Common Stock of evidences of indebtedness or assets
(excluding regular quarterly cash dividends) or of
subscription rights or warrants (other than those referred
to above).
With certain exceptions, no adjustment in the
Purchase Price will be required until cumulative
adjustments amount to at least 1% of the Purchase Price.
No fractional shares of Common Stock will be issued and, in
lieu thereof, an adjustment in cash will be made based on
the market price of the Common Stock on the last trading
date prior to the date of exercise.
At any time after any person or group becomes an
Acquiring Person and prior to the acquisition by such
person or group of 50% or more of the outstanding shares of
Common Stock, the Board of Directors of the Company may
exchange the Rights (other than Rights owned by such person
or group which will have become void), in whole or in part,
at an exchange ratio of one share of Common Stock (or of a
share of a class or series of the Company's preferred stock
having equivalent rights, preferences and privileges), per
Right (subject to adjustment).
In general, the Company may redeem the Rights in
whole, but not in part, at a price of $.01 per Right
(payable in cash, Common Stock or other consideration
deemed appropriate by the Board of Directors) at any time
until ten days following the Stock Acquisition Date.
Immediately upon the action of the Board of Directors
authorizing any redemption, the Rights will terminate and
the only right of the holders of Rights will be to receive
the redemption price.
Until a Right is exercised, the holder thereof,
as such, will have no rights as a stockholder of the
Company, including, without limitation, the right to vote
or to receive dividends. While the distribution of the
rights will not result in the recognition of taxable income
by stockholders or the Company, stockholders may, depending
upon the circumstances, recognize taxable income in the
event that the Rights become exercisable for Common Stock
(or other consideration) of the Company or for Common Stock
of the acquiring company as set forth above.
The terms of the Rights may be amended by the
Board of Directors of the Company without the consent of
the holders of the Rights, including an amendment to lower
certain thresholds described above to not less than the
greater of (i) the sum of .001% and the largest percentage
of the outstanding shares of Common Stock then known to the
Company to be beneficially owned by any person or group of
affiliated or associated persons and (ii) 10%, except that
from and after such time as any person or group of
affiliated or associated persons becomes an Acquiring
Person no such amendment may adversely affect the interests
of the holders of the Rights.
A copy of the Rights Agreement is available free
of charge from the Rights Agent. This description of the
Rights does not purport to be complete and is qualified in
its entirety by reference to the Rights Agreement, which is
incorporated herein by reference.
219538.03 September 30, 1996 (7:40p)
