================================================================================
RIGHTS AGREEMENT
by and between
XXXXXX XXXXXX, LTD.
and
AMERICAN STOCK TRANSFER & TRUST COMPANY
as Rights Agent
Dated November 14, 2001
================================================================================
TABLE OF CONTENTS
Page
----
Section 1. Certain Definitions...........................................1
Section 2. Appointment of Rights Agent...................................5
Section 3. Issuance of Rights Certificates...............................5
Section 4. Form of Rights Certificates...................................8
Section 5. Countersignature and Registration.............................8
Section 6. Transfer, Split Up, Combination and Exchange of Rights
Certificates; Mutilated, Destroyed, Lost or Stolen
Rights Certificates...........................................9
Section 7. Exercise of Rights; Exercise Price; Expiration Date of
Rights.......................................................10
Section 8. Cancellation and Destruction of Rights Certificates..........12
Section 9. Reservation and Availability of Shares of Preferred
Stock........................................................12
Section 10. Preferred Stock Record Date..................................13
Section 11. Adjustment of Exercise Price or Number of Shares.............13
Section 12. Certification of Adjusted Exercise Price or Number of
Shares.......................................................17
Section 13. Consolidation, Merger or Sale or Transfer of Assets or
Earning Power................................................17
Section 14. Fractional Rights and Fractional Shares......................20
Section 15. Rights of Action.............................................21
Section 16. Agreement of Right Holders...................................21
Section 17. Rights Certificate Holder Not Deemed a Stockholder...........22
Section 18. Concerning the Rights Agent..................................22
Section 19. Merger or Consolidation of, or Change in Name of, the
Rights Agent.................................................23
Section 20. Duties of Rights Agent.......................................24
Section 21. Change of Rights Agent.......................................25
Section 22. Issuance of New Rights Certificates..........................26
Section 23. Redemption...................................................26
Section 24. Notice of Proposed Actions...................................27
Section 25. Notices......................................................28
Section 26. Supplements and Amendments...................................28
Section 27. Exchange.....................................................29
Section 28. Successors...................................................30
Section 29. Benefits of this Rights Agreement............................30
Section 30. Delaware Contract............................................30
Section 31. Counterparts.................................................30
Section 32. Descriptive Headings.........................................30
Section 33. Severability.................................................30
Section 34. Determinations And Actions By The Board Of Directors,
Etc..........................................................30
Exhibit A Summary of Rights
Exhibit B Form of Rights Certificate
Exhibit C Form of Certificate of Designations Relating to the Terms
of the Series A Junior Participating Preferred Stock
-i-
RIGHTS AGREEMENT
Agreement, dated as of November 14, 2001 by and between XXXXXX
XXXXXX, LTD., a Delaware corporation (the "Company"), and AMERICAN STOCK
TRANSFER & TRUST COMPANY (the "Rights Agent") (the "Rights Agreement").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, on October 30, 2001, the Board of Directors of the Company
authorized the issuance of, and declared a dividend payable in, one right (a
"Right") for each share of Common Stock, $.0001 par value per share, of the
Company outstanding as of the close of business on November 26, 2001 (the
"Record Date"), each such Right representing the right to purchase one one-
thousandth of a share of Series A Junior Participating Preferred Stock of the
Company (the "Preferred Stock") having the rights and preferences set forth in
the Certificate of Designations attached hereto as Exhibit C, containing the
resolutions adopted by the Board of Directors on October 30, 2001 upon the terms
and subject to the conditions hereinafter set forth; and
WHEREAS, the Board of Directors of the Company further authorized
the issuance of one Right (subject to adjustment) with respect to each share of
Common Stock which may be issued between the Record Date and the earlier to
occur of the Distribution Date or the Expiration Date (as such terms are
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 Rights
Agreement, the following terms shall have the meanings indicated:
(a) "Acquiring Person" shall mean any Person (as such term is
hereinafter defined) who or which, together with all Affiliates (as such
term is hereinafter defined) and Associates (as such term is hereinafter
defined) of such Person, is the Beneficial Owner (as such term is
hereinafter defined) of 15% or more of the Voting Stock (as such term is
hereinafter defined) of the Company then outstanding; provided, that, an
Acquiring Person shall not include (i) an Exempt Person (as such term is
hereinafter defined) or (ii) any Person, together with all Affiliates and
Associates of such Person, who or which would be an Acquiring Person
solely by reason of (A) being the Beneficial Owner of shares of Voting
Stock of the Company, the Beneficial Ownership of which was acquired by
such Person (or his or its predecessor through merger, consolidation,
amalgamation or other similar legal succession) pursuant to any action or
transaction or series of related actions or transactions approved by the
Board of Directors before such Person otherwise became an Acquiring Person
or (B) a reduction in the number of outstanding shares of Voting Stock of
the Company pursuant to a transaction or a series of related transactions
approved by the Board of Directors of the Company; provided, further, that
in the event such Person described in this clause (ii) does not become an
Acquiring Person by reason of subclause (A) or (B) of this clause (ii),
such Person nonetheless shall become an Acquiring Person in the event such
Person thereafter acquires Beneficial Ownership of an additional 1% or
more of the Voting Stock of the Company then outstanding, unless the
acquisition of such additional Voting Stock would not result in such
Person becoming an Acquiring Person by reason of subclause (A) or (B) of
this clause (ii). 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" became the Beneficial Owner of a number of shares
of Common Stock such that the Person would otherwise qualify as an
"Acquiring Person" inadvertently (including, without limitation, because
(A) such Person was unaware that it Beneficially Owned a percentage of
Common Stock that would otherwise cause such Person to be an "Acquiring
Person" or (B) such Person was unaware of the extent of its Beneficial
Ownership under this Rights Agreement) and without any intention of
changing or influencing control of the Company, then such Person shall not
be deemed to be or have become an "Acquiring Person" for any purposes of
this Rights Agreement unless and until such Person shall have failed to
divest itself, as soon as practicable (as determined, in good faith, by
the Board of Directors of the Company), of Beneficial Ownership of a
sufficient number of shares of Common Stock so that such Person would no
longer otherwise qualify as an "Acquiring Person."
(b) "Affiliate" shall have the meaning ascribed to such term in Rule
12b-2 of the General Rules and Regulations under the Securities Exchange
Act of 1934, as amended ("Exchange Act"), as in effect on the date of this
Rights Agreement.
(c) "Associate" of a Person (as such term is hereinafter defined)
shall mean (i) with respect to a company, any officer or director thereof
or of any Subsidiary (as such term is hereinafter defined) thereof, or any
Beneficial Owner (as such term is hereinafter defined) of 10% or more of
any class of equity security thereof, (ii) with respect to an association,
joint venture or other unincorporated organization, any officer or
director thereof or of a Subsidiary thereof or any Beneficial Owner of 10%
or more ownership interest therein, (iii) with respect to a partnership,
any general partner thereof or any limited partner thereof who is,
directly or indirectly, the Beneficial Owner of a 10% or greater ownership
interest therein, (iv) with respect to a limited liability company, any
officer, director or manager thereof or of a Subsidiary thereof or any
member thereof who is, directly or indirectly, the Beneficial Owner of a
10% or greater ownership interest therein, (v) with respect to a business
trust, any officer or trustee thereof or of any Subsidiary thereof, (vi)
with respect to any other trust or an estate, any trustee, executor or
similar fiduciary or any Person who has a 10% or greater interest as a
beneficiary in the income from or principal of such trust or estate, (vii)
with respect to a natural person, any relative or spouse of such person,
or any relative of such spouse, who has the same home as such person, and
(viii) any Affiliate of such Person.
(d) A person shall be deemed the "Beneficial Owner" of, or to
"Beneficially Own," any securities (and correlative terms shall have
correlative meanings):
(i) which such Person or any of such Person's Affiliates or
Associates beneficially owns, directly or indirectly, for purposes of
Section 13(d) of the Exchange
-2-
Act and Regulations 13D and 13G thereunder, in each case as in effect on
the date hereof; or
(ii) which such Person or any of such Person's Affiliates or
Associates has (A) the right to acquire (whether such right is exercisable
immediately or only after the passage of time or the fulfillment of a
condition or both) pursuant to any agreement, arrangement or understanding
(whether or not in writing), or upon the exercise of conversion rights,
exchange rights, other rights (other than these Rights), warrants or
options, or otherwise; provided, however, that a Person shall not be
deemed the "Beneficial Owner" of, or to "Beneficially Own," securities
tendered pursuant to a tender or exchange offer made by or on behalf of
such Person or any of such Person's Affiliates or Associates until such
tendered securities are accepted for purchase or exchange or (B) the right
to vote, alone or in concert with others, 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 securities if the agreement, arrangement or
understanding to vote such security (1) arises solely from a revocable
proxy or consent given in response to a proxy or consent solicitation made
pursuant to, and in accordance with, the applicable rules and regulations
under the Exchange Act and (2) is not at that time reportable by such
Person on a Schedule 13D report under the Exchange Act (or any comparable
or successor report), other than by reference to a proxy or consent
solicitation being conducted by such Person; or
(iii) which are Beneficially Owned, directly or indirectly, by any
other Person with which such Person or any of such Person's Affiliates or
Associates has any agreement, arrangement or understanding (whether or not
in writing) for the purpose of acquiring, holding, voting (except as
described in the proviso in clause (B) of subparagraph (ii) of this
paragraph (d)) or disposing of any securities of the Company; provided,
however, that for purposes of determining Beneficial Ownership of
securities under this Rights Agreement, officers and directors of the
Company solely by reason of their status as such shall not constitute a
group (notwithstanding that they may be Associates of one another or may
be deemed to constitute a group for purposes of Section 13(d) of the
Exchange Act) and shall not be deemed to own shares owned by another
officer or director of the Company.
Notwithstanding anything in this paragraph (d) to the contrary, a
Person engaged in the business of underwriting securities shall not be deemed
the "Beneficial Owner" of, or to "Beneficially Own," any securities acquired in
good faith in a firm commitment underwriting, until the expiration of forty days
after the date of such acquisition.
(e) "Book-Entry" shall mean an uncertificated book-entry for the
Company's Common Stock.
(f) "Business Day" shall mean any day other than a Saturday, Sunday,
or day on which banking institutions in the State of New York or the state
in which the office of the Rights Agent is located are authorized or
obligated by law or executive order to close.
-3-
(g) "Close of Business" on any given date shall mean 5:00 p.m., New
York City time, on such date; provided, however, that if such date is not
a Business Day it shall mean 5:00 p.m., New York City time, on the next
succeeding Business Day.
(h) "Common Stock," when used with reference to the Company, shall
mean the common stock, presently $.0001 par value, of the Company. "Common
Stock," when used with reference to any Person other than the Company
which shall be organized in corporate form, shall mean the capital stock
or other equity security with the greatest voting power of such Person or,
if such other Person is a subsidiary of another Person, the Person or
Persons which ultimately control such first-mentioned Person. "Common
Stock," when used with reference to any Person other than the Company
which shall not be organized in corporate form, shall mean units of
beneficial interest which shall represent the right to participate in
profits, losses, deductions and credits of such Person and which shall be
entitled to exercise the greatest voting power of such Person.
(i) "Distribution Date" shall have the meaning set forth in Section
3(b) hereof.
(j) "Exchange Act" shall have the meaning set forth in Section 1(b)
hereof.
(k) "Exempt Person" shall mean (i) the Company, (ii) any Subsidiary
of the Company or (iii) any employee benefit plan or employee stock plan
of the Company or any Subsidiary of the Company, or any trust or other
entity organized, appointed, established or holding Common Stock for or
pursuant to the terms of any such plan.
(l) "Exercise Price" shall have the meaning set forth in Sections 4
and 7(b) hereof.
(m) "Expiration Date" shall have the meaning set forth in Section
7(a) hereof.
(n) "Fair Market Value" of any property shall mean the fair market
value of such property as determined in accordance with Section 11(b)
hereof.
(o) "NASDAQ" shall mean the National Association of Securities
Dealers, Inc. Automated Quotation System or any successor thereto or other
comparable quotation system.
(p) "Person" shall mean any individual, firm, company or other
entity.
(q) "Principal Party" shall have the meaning set forth in Section
13(b) hereof.
(r) "Record Date" shall have the meaning set forth in the first
Recital.
(s) "Redemption Price" shall have the meaning set forth in Section
23(a) hereof.
(t) "Rights Certificate" shall have the meaning set forth in Section
3(d) hereof.
-4-
(u) "Stock Acquisition Date" shall mean the first date on which
there shall be a public announcement by the Company or an Acquiring Person
that an Acquiring Person has become such (which, for purposes of this
definition, shall include, without limitation, a report filed pursuant to
Section 13(d) of the Exchange Act) or such earlier date as a majority of
the Board of Directors shall become aware of the existence of an Acquiring
Person.
(v) "Subsidiary" of a Person shall mean any company or other entity
of which securities or other ownership interests having voting power
sufficient to elect a majority of the Board of Directors or other persons
performing similar functions are Beneficially Owned, directly or
indirectly, by such Person or by any company or other entity that is
otherwise controlled by such Person.
(w) "Summary of Rights" shall have the meaning set forth in Section
3(a) hereof.
(x) "Trading Day" shall have the meaning set forth in Section 11(b)
hereof.
(y) "Transfer Tax" shall mean any tax or charge, including any
documentary stamp tax, imposed or collected by any governmental or
regulatory authority in respect of any transfer of any security,
instrument or right, including Rights, shares of Common Stock and shares
of Preferred Stock.
(z) "Voting Stock" shall mean (i) the Common Stock of the Company
and (ii) any other shares of capital stock of the Company entitled to vote
generally in the election of directors or entitled to vote together with
the Common Stock in respect of any merger, consolidation, sale of all or
substantially all of the Company's assets, liquidation, dissolution or
winding up. For purposes of this Rights Agreement, Voting Stock shall
include securities of the type referred to in clauses (i) and (ii) above
that trade on a "when issued" basis on a national securities exchange or
on the NASDAQ. For purposes of this Rights Agreement, a stated percentage
of the Voting Stock shall mean a number of shares of the Voting Stock as
shall equal in voting power that stated percentage of the total voting
power of the then outstanding shares of Voting Stock in the election of a
majority of the Board of Directors or in respect of any merger,
consolidation, sale of all or substantially all of the Company's assets,
liquidation, dissolution or winding up.
Any determination required to be made by the Board of Directors of
the Company for purposes of applying the definitions contained in this Section 1
shall be made by the Board of Directors in its good faith judgment, and such
determination shall be binding on the Rights Agent and the holders of the
Rights.
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
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. Issuance of Rights Certificates.
-5-
(a) On the Record Date (or as soon as practicable thereafter), the
Company or the Rights Agent shall send a copy of a Summary of Rights, in
substantially the form attached hereto as Exhibit A (the "Summary of
Rights"), by first class mail, postage prepaid, 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.
(b) Until the Close of Business on the day which is the earlier of
(i) the tenth day after the Stock Acquisition Date or such earlier or
later date (not beyond the thirtieth day after the Stock Acquisition Date)
as the Board of Directors may from time to time fix by resolution adopted
prior to the Distribution Date that otherwise would have occurred or (ii)
the tenth business day (or such later date as may be determined by action
of the Board of Directors prior to such time as any Person becomes an
Acquiring Person) after the date of the commencement by any Person (other
than an Exempt Person) of, or the first public announcement of the intent
of any Person (other than an Exempt Person) to commence, a tender or
exchange offer upon the successful consummation of which such Person,
together with its Affiliates and Associates, would be the Beneficial Owner
of 15% or more of the then outstanding shares of Voting Stock of the
Company (irrespective of whether any shares are actually purchased
pursuant to any such offer) (the earlier of such dates being herein
referred to as the "Distribution Date"), (x) the Rights shall be evidenced
by the Book-Entries, or certificates for, Common Stock registered in the
name of the holders of Common Stock (together with, in the case of
Book-Entries representing, or the certificates for, Common Stock
outstanding as of the Record Date, the Summary of Rights) and not by
separate Book- Entries or Rights Certificates and the record holders of
the Common Stock represented by such Book-Entries or certificates shall be
the record holders of the Rights represented thereby and (y) each Right
shall be transferable only simultaneously and together with the transfer
of a share of Common Stock (subject to adjustment as hereinafter
provided). Until the Distribution Date (or, if earlier, the Expiration
Date), transfer on the Company's Direct Registration System of any Common
Stock represented by a Book-Entry or the surrender for transfer of any
certificate for Common Stock shall constitute the surrender for transfer
of the Right or Rights associated with the Common Stock evidenced thereby,
whether or not accompanied by a copy of the Summary of Rights.
(c) Rights shall be issued in respect of all shares of Common Stock
that become outstanding after the Record Date but prior to the earlier of
the Distribution Date or the Expiration Date and, in certain circumstances
provided in Section 22 hereof, may be issued in respect of shares of
Common Stock that become outstanding after the Distribution Date.
Certificates of Common Stock issued (including, without limitation,
certificates issued upon original issuance, dispensation from the
Company's treasury or transfer or exchange of Common Stock) after the
Record Date but prior to the earliest of the Distribution Date or the
Expiration Date (or, in certain circumstances as provided in Section 22
hereof, after the Distribution Date) shall have impressed, printed,
written or stamped thereon or otherwise affixed thereto the following
legend:
This certificate also evidences and entitles the holder hereof to
the same number of Rights (subject to adjustment) as the number of
shares of Common Stock represented by this certificate, such
-6-
Rights being on the terms provided under the Rights Agreement
between XXXXXX XXXXXX, LTD. (the "Company") and AMERICAN STOCK
TRANSFER & TRUST COMPANY (the "Rights Agent"), dated as of
November 14, 2001, as it may be amended from time to time (the
"Rights Agreement"), the terms of which are incorporated herein by
reference and a copy of which is on file at the principal executive
offices of the Company. Under certain circumstances, as set forth in
the Rights Agreement, such Rights shall be evidenced by separate
certificates and shall no longer be evidenced by this certificate.
The Company shall mail to the registered holder of this certificate
a copy of the Rights Agreement without charge within five days after
receipt of a written request therefor. UNDER CERTAIN CIRCUMSTANCES
AS PROVIDED IN SECTION 7(e) OF THE RIGHTS AGREEMENT, RIGHTS ISSUED
TO OR BENEFICIALLY OWNED BY ACQUIRING PERSONS OR THEIR AFFILIATES OR
ASSOCIATES (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT) OR
ANY SUBSEQUENT HOLDER OF SUCH RIGHTS SHALL BE NULL AND VOID AND MAY
NOT BE TRANSFERRED TO ANY PERSON.
(d) As soon as practicable after the Distribution Date, the Company
will prepare and execute, the Rights Agent will countersign, and the
Company will send or cause to be sent (and the Rights Agent will, if
requested, send), by first class mail, postage prepaid, to each record
holder of the Common Stock as of the Close of Business on the Distribution
Date, as shown by the records of the Company, at the address of such
holder shown on such records, a certificate in the form provided by
Section 4 hereof (a "Rights Certificate"), evidencing one Right (subject
to adjustment as provided herein) for each share of Common Stock so held.
As of and after the Distribution Date, the Rights shall be evidenced
solely by such Rights Certificates and may be transferred by the transfer
of the Rights Certificate as permitted hereby, separately and apart from
any transfer of one or more shares of Common Stock.
(e) In addition, in connection with the issuance or sale of shares
of Common Stock following the Distribution Date and prior to the
Expiration Date, the Company (i) shall, with respect to shares of Common
Stock so issued or sold (x) pursuant to the exercise of stock options or
under any employee plan or arrangement or (y) upon the exercise,
conversion or exchange of other securities issued by the Company prior to
the Distribution Date and (ii) may, in any other case, if deemed necessary
or appropriate by the Board of Directors of the Company, issue Rights
Certificates representing the appropriate number of Rights in connection
with such issuance or sale; provided that no such Rights Certificate shall
be issued if, and to the extent that, (i) 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 or (ii) appropriate adjustment shall otherwise
have been made in lieu of the issuance thereof.
-7-
Section 4. Form of Rights Certificates.
(a) The Rights Certificates (and the forms of election to purchase
shares, certificate and assignment to be printed on the reverse thereof),
when, as and if issued, shall be substantially in the form set forth in
Exhibit B hereto and may have such marks of identification or designation
and such legends, summaries or endorsements printed thereon as may be
required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock exchange on
which the Common Stock or the Rights may from time to time be listed or as
the Company may deem appropriate to conform to usage or otherwise and as
are not inconsistent with the provisions of this Rights Agreement. Subject
to the provisions of Section 22 hereof, Rights Certificates evidencing
Rights whenever issued, (i) shall be dated as of the date of issuance of
the Rights they represent and (ii) subject to adjustment from time to time
as provided herein, on their face shall entitle the holders thereof to
purchase such number of shares (including fractional shares which are
integral multiples of one one-thousandth of a share) of Preferred Stock as
shall be set forth therein at the price payable upon exercise of a Right
provided by Section 7(b) hereof as the same may from time to time be
adjusted as provided herein (the "Exercise Price").
(b) Notwithstanding any other provision of this Rights Agreement,
any Rights Certificate that represents Rights Beneficially Owned by an
Acquiring Person or any Affiliate or Associate thereof or any other Person
whose Rights shall become void pursuant to Section 7(e) shall have
impressed on, printed on, written on or otherwise affixed to it (if the
Company or the Rights Agent has knowledge that such Person is an Acquiring
Person or an Associate or Affiliate or a nominee of any of the foregoing)
the following legend:
The Beneficial Owner of the Rights represented by this Rights
Certificate is an Acquiring Person or an Affiliate or an Associate
of an Acquiring Person. Accordingly, this Rights Certificate and the
Rights represented hereby shall become void in the circumstances
specified in Section 7(e) of the Rights Agreement.
Section 5. Countersignature and Registration.
(a) Each Rights Certificate shall be executed on behalf of the
Company by its Chairman of the Board, its Chief Executive Officer, any
President or any Senior or Executive Vice President, either manually or by
facsimile signature, and have affixed thereto the Company's seal or a
facsimile thereof which shall be attested to by the Secretary or an
Assistant Secretary of the Company, either manually or by facsimile
signature. Each Rights Certificate shall be countersigned by the Rights
Agent either manually or by facsimile signature and shall not be valid for
any purpose unless so countersigned. In case any officer of the Company
who shall have signed any Rights Certificate shall cease to be such
officer of the Company before countersignature by the Rights Agent and
issuance and delivery of the certificate by the Company, such Rights
Certificate, nevertheless, may be countersigned by the Rights Agent and
issued and delivered with the same force and effect as though the person
who signed such Rights
-8-
Certificates had not ceased to be such officer of the Company. Any Rights
Certificate may be signed on behalf of the Company by any person who, on
the 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 one or more offices
designated as the appropriate place for the surrender of Rights
Certificates upon exercise or transfer, and in such other locations as may
be required by law, 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
date of each of the Rights Certificates and any Rights Certificates that
have a legend printed thereon pursuant to Section 4(b).
Section 6. Transfer, Split Up, Combination and Exchange of Rights
Certificates; Mutilated, Destroyed, Lost or Stolen Rights Certificates.
(a) Subject to the provisions of Sections 7(e), 7(f) and 14(b)
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, may be (i) transferred or (ii) split up, combined or
exchanged for one or more other Rights Certificates, entitling the
registered holder to purchase a like number of shares of Preferred Stock
as the Rights Certificate or Rights Certificates surrendered then entitled
such holder to purchase. Any registered holder desiring to transfer any
Rights Certificate shall surrender the Rights Certificate at the office of
the Rights Agent designated for the surrender of Rights Certificates with
the form of certificate and assignment on the reverse side thereof duly
endorsed (or, enclosed with such Rights Certificate, a written instrument
of transfer in a form satisfactory to the Company and the Rights Agent),
duly executed by the registered holder thereof or his attorney duly
authorized in writing, and with such signature duly guaranteed. Any
registered holder desiring to split up, combine or exchange any Rights
Certificate shall make such request in writing delivered to the Rights
Agent, and shall surrender the Rights Certificate to be split up, combined
or exchanged at the office of the Rights Agent. Thereupon, the Rights
Agent shall 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 Transfer Tax that may be imposed in connection with any transfer,
split up, combination or exchange of any Rights Certificates.
(b) Subject to the provisions of Sections 7(e), 7(f) and 14(b)
hereof, 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,
if requested by the Company, reimbursement to the Company and the Rights
Agent of all reasonable expenses incidental thereto, or upon surrender to
the Rights Agent and cancellation of the Rights Certificate if mutilated,
the Company shall issue and deliver a
-9-
new Rights Certificate of like tenor to the Rights Agent for delivery to
the registered owner in lieu of the Rights Certificate so lost, stolen,
destroyed or mutilated.
Section 7. Exercise of Rights; Exercise Price; Expiration Date of
Rights.
(a) The Rights shall not be exercisable until, and shall become
exercisable on, the Distribution Date (unless otherwise provided herein,
including, without limitation, the restrictions on exercisability set
forth in Section 7(e) and 23(a) hereof). Except as otherwise provided
herein, the Rights may be exercised, in whole or in part, at any time
commencing with the Distribution Date upon surrender of the Rights
Certificate, with the form of election to purchase and certificate on the
reverse side thereof duly executed (with signatures duly guaranteed), to
the Rights Agent at the principal office of the Rights Agent, in New York
City, together with payment of the Exercise Price for each Right
exercised, subject to adjustment as hereinafter provided, at or prior to
the Close of Business on the earlier of (i) November 14, 2011 (or if the
Distribution Date shall have occurred before November 14, 2011 at the
Close of Business on the 90th day following the Distribution Date) or (ii)
the date on which the Rights are redeemed as provided in Section 23 hereof
(such earlier date being herein referred to as the "Expiration Date").
(b) The Exercise Price shall initially be $75.00 for each one
one-thousandth (1/1,000) of a share of Preferred Stock issued pursuant to
the exercise of a Right. The Exercise Price and the number of shares of
Preferred Stock or other securities to be acquired upon exercise of a
Right shall be subject to adjustment from time to time as provided in
Sections 11 and 13 hereof. The Exercise Price shall be payable in lawful
money of the United States of America, in accordance with paragraph (c)
below.
(c) Except as otherwise provided herein, upon receipt of a Rights
Certificate representing exercisable Rights with the form of election to
purchase duly executed, accompanied by payment by certified check,
cashier's check, bank draft or money order payable to the Company or the
Rights Agent of the Exercise Price for the shares to be purchased and an
amount equal to any applicable Transfer Tax required to be paid by the
holder of the Rights Certificate in accordance with Section 9(e) hereof,
the Rights Agent shall thereupon promptly (i) requisition from any
registrar or transfer agent (as may be appropriate) of the Preferred Stock
of the Company one or more certificates representing the number of shares
of Preferred Stock to be so purchased, and the Company hereby authorizes
and directs such registrar or transfer agent (as may be appropriate) to
comply with all such requests, (ii) as provided in Section 14(b), at the
election of the Company, cause depositary receipts to be issued in lieu of
fractional shares of Preferred Stock, (iii) if the election provided for
in the immediately preceding clause (ii) has not been made, requisition
from the Company the amount of cash to be paid in lieu of the issuance of
fractional shares in accordance with Section 14(b) hereof, (iv) after
receipt of such Preferred Stock certificates and, if applicable,
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 (v) when
appropriate, after receipt, promptly deliver such cash to or upon the
order of the registered holder of such Rights Certificate; provided,
however, that in the case of a purchase of securities, other than
Preferred Stock, pursuant to Section 13 hereof, the
-10-
Rights Agent shall promptly take the appropriate actions corresponding in
such case to that referred to in the foregoing clauses (i) through (v) of
this Section 7(c). Notwithstanding the foregoing provisions of this
Section 7(c), the Company may suspend the issuance of shares of Preferred
Stock upon exercise of a Right for a reasonable period, not in excess of
120 days, during which the Company seeks to register under the Securities
Act of 1933, as amended (the "Act"), and any applicable securities law of
any other jurisdiction, the shares of Preferred Stock to be issued
pursuant to the Rights; provided, however, that nothing contained in this
Section 7(c) shall relieve the Company of its obligations under Section
9(c) hereof.
(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 to the registered holder
of such Rights Certificate or his assignee, subject to the provisions of
Section 14(b) hereof.
(e) Notwithstanding any provision of this Rights Agreement to the
contrary, from and after the time (the "Invalidation Time") when any
Person first becomes an Acquiring Person, any Rights that are Beneficially
Owned by (x) such Acquiring Person (or any Associate or Affiliate of such
Acquiring Person), (y) a transferee of such Acquiring Person (or any such
Associate or Affiliate) who becomes a transferee after the Invalidation
Time or (z) a transferee of such Acquiring Person (or any such Associate
or Affiliate) who becomes a transferee prior to or concurrently with the
Invalidation Time pursuant to either (I) a transfer from the Acquiring
Person to holders of its equity securities or to any Person with whom it
has any continuing agreement, arrangement or understanding regarding the
transferred Rights or (II) a transfer which the Board of Directors has
determined is part of a plan, arrangement or understanding which has the
purpose or effect of avoiding the provisions of this Section 7(e), and
subsequent transferees of the Persons referred to in either clause (y) or
(z) above, shall be void without any further action and any holder of such
Rights shall thereafter have no rights whatsoever with respect to such
Rights under any provision of this Rights Agreement. The Company shall use
all reasonable efforts to ensure that the provisions of this Section 7(e)
are complied with, but shall have no liability to any holder of a Rights
Certificate or any other Person as a result of the Company's failure to
make any determination with respect to an Acquiring Person or its
Affiliates, Associates or transferees hereunder. No Rights Certificate
shall be issued pursuant to Section 3 hereof that represents Rights
Beneficially Owned by an Acquiring Person or any other Person whose Rights
would be void pursuant to the provisions of this Section 7(e) or any
Associate, Affiliate or nominee thereof; no Rights Certificate shall be
issued at any time upon the transfer of any Rights to an Acquiring Person
or any other Person whose Rights would be void pursuant to the provisions
of this Section 7(e) or any Associate, Affiliate or nominee thereof; and
any Rights Certificate delivered to the Rights Agent for transfer to an
Acquiring Person whose Rights would be void pursuant to the provisions of
this Section 7(e) shall be canceled.
(f) Notwithstanding anything in this Rights Agreement to the
contrary, neither the Rights Agent nor the Company shall be obligated to
undertake any action with
-11-
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 following 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 or a Person referred
to in clause (y) or (z) of Section 7(e) and such other information 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 to any of its
agents, be delivered to the Rights Agent for cancellation or in canceled form,
or, if surrendered to the Rights Agent, shall be canceled by it, and no Rights
Certificates shall be issued in lieu thereof except as expressly permitted by
any of the provisions of this Rights Agreement. The Company shall deliver to the
Rights Agent for cancellation and retirement, and the Rights Agent shall cancel
and retire, any Rights Certificate purchased or acquired by the Company
otherwise than upon the exercise thereof. The Rights Agent shall deliver all
canceled Rights Certificates to the Company, or shall, at the written request of
the Company, and after any retention period required by the Securities and
Exchange Commission, destroy such canceled Rights Certificates, and in such case
shall deliver a certificate of destruction thereof to the Company.
Section 9. Reservation and Availability of Shares of Preferred
Stock.
(a) The Company covenants and agrees that it will cause to be
reserved and kept available out of its authorized and unissued shares of
Preferred Stock or out of authorized and issued shares of Preferred Stock
held in its treasury, such number of shares of Preferred Stock as will
from time to time be sufficient to permit the exercise in full of all
outstanding Rights. The Company shall take such action as may be required
for it to comply with the foregoing sentence of this Section 9(a).
(b) The Company shall use its best efforts to cause, from and after
such time as the Rights become exercisable, all shares of Preferred Stock
issued or reserved for issuance in accordance with this Rights Agreement
to be listed, upon official notice of issuance, upon the principal
national securities exchange, if any, upon which the Common Stock is
listed or, if the principal market for the Common Stock is not on any
national securities exchange, to be eligible for quotation on NASDAQ or
any successor thereto or other comparable quotation system.
(c) The Company covenants and agrees that it will take all such
actions as may be necessary to insure that all shares of Preferred Stock
delivered upon exercise of Rights shall, at the time of delivery of the
certificates, for such shares (subject to payment of the Exercise Price in
respect thereof), be duly and validly authorized and issued and fully paid
and nonassessable shares.
(d) The Company shall use its best efforts to (i) file, as soon as
practicable following the occurrence of the event described in Section
11(a)(ii), or as soon as is required by law following the Distribution
Date, as the case may be, a registration
-12-
statement under the Act, with respect to the shares of Preferred Stock
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 Preferred Stock, or (B) the Expiration Date. The
Company may temporarily suspend, for a period of time not to exceed 120
days, the issuance of shares of Preferred Stock upon exercise of a Right
in order to prepare and file a registration statement under the Act and
permit it to become effective. 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. Notwithstanding any provision of this Rights
Agreement to the contrary, the Rights shall not be exercisable in any
jurisdiction unless the requisite qualification in such jurisdiction shall
have been obtained and until a registration statement under the Act (if
required) shall have been declared effective.
(e) The Company covenants and agrees that it will pay when due and
payable any and all federal and state Transfer Taxes which may be payable
in respect of the issuance or delivery of the Rights Certificates or of
any shares of Preferred Stock issued or delivered 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 a
Rights Certificate to a Person other than, or the issuance or delivery of
certificates for Preferred Stock upon exercise of Rights in a name other
than that of, the registered holder of the Rights Certificate, and the
Company shall not be required to or issue or deliver a Rights Certificate
or certificate for Preferred Stock to a Person other than such registered
holder until any such Transfer Tax shall have been paid (any such Transfer
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 Transfer Tax is due.
Section 10. Preferred Stock Record Date. Each Person in whose name
any certificate for shares of Preferred Stock is issued upon the exercise of
Rights shall for all purposes be deemed to have become the holder of record of
the Preferred Stock represented thereby on, and such certificate shall be dated
as of, the date upon which the Rights Certificate evidencing such Rights was
duly surrendered and payment of the Exercise Price (and any applicable Transfer
Taxes) was made; provided, however, that, if the date of such surrender and
payment is a date upon which the Preferred Stock transfer books of the Company
are closed, such Person shall be deemed to have become the record holder of such
shares on, and such certificate shall be dated as of, the next succeeding
Business Day on which the Preferred Stock transfer books of the Company are
open. Prior to the exercise of the Rights evidenced thereby, the holder of a
Rights Certificate, as such, 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 Exercise Price or Number of Shares. The
Exercise Price and the number of shares of Preferred Stock which may be
purchased upon exercise of a
-13-
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 Rights Agreement (A) declare or pay any dividend on Common Stock
payable in shares of Common Stock, (B) subdivide or split the outstanding
shares of Common Stock into a greater number of shares or (C) combine or
consolidate the outstanding shares of Common Stock into a smaller number
of shares or effect a reverse split of the outstanding shares of Common
Stock, then and in each such event the number of shares of Preferred Stock
issuable upon the exercise of a Right after the record date for such event
(if one shall have been established or, if not, after the date of such
event) shall be the number of shares of Preferred Stock issuable
immediately prior to such event multiplied by a fraction the numerator of
which is the number of Rights outstanding immediately prior to such event
and the denominator of which is the number of Rights outstanding
immediately after such event and the Exercise Price after such event shall
be the Exercise Price in effect immediately prior to such event multiplied
by such fraction. 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).
(ii) Subject to Section 27 of this Rights Agreement, in the event
that any Person (other than an Exempt Person), alone or together with its
Affiliates and Associates, shall become an Acquiring Person, then, subject
to the last sentence of Section 23(a) and except as otherwise provided in
this Section 11, each holder of a Right, except as provided in Section
7(e) hereof, shall thereafter have the right to receive upon exercise of
such Right in accordance with the terms of this Rights Agreement and
payment of the Exercise Price, the greater of (1) the number of one
one-thousandths of a share of Preferred Stock for which such Right was
exercisable immediately prior to the first occurrence of the event
described in this Section 11(a)(ii) or (2) such number of one
one-thousandths of a share of Preferred Stock as shall equal the result
obtained by dividing the Exercise Price by 50% of the Fair Market Value of
one one-thousandth of a share of Preferred Stock (determined pursuant to
Section 11(b) hereof) on the date of such first occurrence; provided,
however, that if the transaction that would otherwise give rise to the
foregoing adjustment is also subject to the provisions of Section 13
hereof, then only the provisions of Section 13 hereof shall apply and no
adjustment shall be made pursuant to this Section 11(a)(ii).
(iii) In the event that the Company does not have available
sufficient authorized but unissued Preferred Stock to permit the
adjustments required pursuant to the foregoing subparagraph (i) or the
exercise in full of the Rights in accordance with the foregoing
subparagraph (ii), the Company shall take all such actions as may be
necessary to authorize and reserve for issuance such number of additional
shares of Preferred Stock as may from time to time be required to be
issued upon the exercise in full of all Rights from time to time
outstanding and, if necessary, shall use its best efforts to obtain
stockholder approval thereof. In lieu of issuing shares of Preferred Stock
in accordance with the foregoing subparagraphs (i) and (ii), the Company
may, if the Board of Directors determines that such action is necessary or
appropriate and not contrary to the interests of
-14-
holders of Rights, elect to issue or pay, upon the exercise of the Rights,
(A) cash, (B) other equity securities of the Company, (C) debt securities
of the Company, (D) other assets or (E) any combination of the foregoing,
in each case, having an aggregate Fair Market Value equal to the Fair
Market Value of the shares of Preferred Stock which otherwise would have
been issuable pursuant to Section 11(a)(ii), which Fair Market Value shall
be determined by an investment banking firm selected by the Board of
Directors. For purposes of the preceding sentence, the Fair Market Value
of the Preferred Stock shall be as determined pursuant to Section 11(b).
Subject to Section 23 hereof, any such election by the Board of Directors
of the Company must be made and publicly announced within thirty (30) days
after the date on which the event described in Section 11(a)(ii) occurs.
(b) For the purpose of this Rights Agreement, the "Fair Market
Value" of any share of Preferred Stock, Common Stock or any other stock or
any Right or other security or any other property on any date shall be
determined as provided in this Section 11(b). In the case of a
publicly-traded stock or other security, the Fair Market Value on any date
shall be deemed to be the average of the daily closing prices per share of
such stock or per unit of such other security for the 30 consecutive
Trading Days (as such term is hereinafter defined) immediately prior to
such date; provided, however, that in the event that the Fair Market Value
per share of any share of Common Stock is determined during a period which
includes any date that is within 30 Trading Days after (i) the ex-dividend
date for a dividend or distribution on such stock payable in shares of
Common Stock or securities convertible into shares of Common Stock, or
(ii) the effective date of any subdivision, split, combination,
consolidation, reverse stock split or reclassification of such stock,
then, and in each such case, the Fair Market Value shall be appropriately
adjusted by the Board of Directors of the Company to take into account
ex-dividend or post-effective date trading. The closing price for any day
shall be the last sale price, regular way, or, in case no such sale takes
place on such day, the average of the closing bid and asked prices,
regular way (in either case, as reported in the applicable transaction
reporting system with respect to securities listed or admitted to trading
on the New York Stock Exchange), or, if the securities are not listed or
admitted to trading on the New York Stock Exchange, as reported in the
applicable transaction reporting system with respect to securities listed
on the principal national securities exchange on which such security is
listed or admitted to trading; or, if 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 no bids for such security are quoted by any such
organization, the average of the closing bid and asked prices as furnished
by a professional market maker making a market in such security selected
by the Board of Directors of the Company. The term "Trading Day" shall
mean a day on which the principal national securities exchange on which
such security is listed or admitted to trading is open for the transaction
of business or, if such security is not listed or admitted to trading on
any national securities exchange, a Business Day. If a security is not
publicly held or not so listed or traded, "Fair Market Value" shall mean
the fair value per share of stock or per other unit of such other
security, as determined by an independent investment banking firm
experienced in the valuation of securities selected in good faith by the
Board of Directors of the Company, or, if no such investment banking firm
is, in
-15-
the good faith judgment of the Board of Directors, available to make such
determination, in good faith by the Board of Directors of the Company;
provided, however, that for purposes of making the adjustment provided for
by Section 11(a)(ii) hereof, the Fair Market Value of a share of Preferred
Stock shall not be less than 100% of the product of the Fair Market Value
of a share of Common Stock multiplied by the higher of the then Dividend
Multiple or Vote Multiple applicable to the Preferred Stock (as defined in
the provisions of the Certificate of Designations relating to the
Preferred Stock) and shall not exceed 105% of the product of the then Fair
Market Value of a share of Common Stock multiplied by the higher of the
then Dividend Multiple or Vote Multiple applicable to the Preferred Stock.
In the case of property other than securities, the "Fair Market Value"
thereof shall be determined in good faith by the Board of Directors of the
Company based upon such appraisals or valuation reports of such
independent experts as the Board of Directors of the Company shall in good
faith determine to be appropriate in accordance with good business
practices and the interests of the holders of Rights. Any such
determination of Fair Market Value shall be described in a statement filed
with the Rights Agent and shall be binding upon the Rights Agent.
(c) All calculations under this Section 11 shall be made to the
nearest cent or to the nearest one one-thousandth of a share, as the case
may be.
(d) Irrespective of any adjustment or change in the Exercise Price
or the number of shares of Preferred Stock issuable upon the exercise of
the Rights, the Rights Certificates theretofore and thereafter issued may
continue to express the Exercise Price and the number of shares to be
issued upon exercise of the Rights as in the initial Rights Certificates
issued hereunder but, nevertheless, shall represent the Rights as so
adjusted.
(e) Before taking any action that would cause an adjustment reducing
the purchase price per whole share of Preferred Stock upon exercise of the
Rights below the then par value, if any, of the shares of Preferred Stock,
the Company shall use its best efforts to 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 non-assessable shares of such
Preferred Stock at such adjusted purchase price per share.
(f) Anything in this Section 11 to the contrary notwithstanding, in
the event of any reclassification of stock of the Company or any
recapitalization, reorganization or partial liquidation of the Company or
similar transaction, the Company shall be entitled to make such further
adjustments in the number of shares of Preferred Stock which may be
acquired upon exercise of the Rights, and such adjustments in the Exercise
Price therefor, in addition to those adjustments expressly required by the
other paragraphs of this Section 11, as the Board of Directors of the
Company shall determine to be necessary or appropriate in order for the
holders of the Rights in such event to be treated equitably and in
accordance with the purpose and intent of this Rights Agreement or in
order that any such event shall not, but for such adjustment, in the
opinion of counsel to the Company, result in the stockholders of the
Company being subject to any United States federal income tax liability by
reason thereof.
-16-
(g) In the event the Company shall at any time after the Record Date
make any distribution on the shares of Common Stock of the Company,
whether by way of a dividend or a reclassification of stock, a
recapitalization, reorganization or partial liquidation of the Company or
otherwise, in cash or any debt security, debt instrument, real or personal
property or any other property (other than any shares of Common Stock or
other capital stock of the Company and other than any right or warrant to
acquire any such shares, including any debt security convertible into or
exchangeable for any such share, at less than the Fair Market Value of
such shares) and the amount of such cash dividend or the Fair Market Value
of such debt security, debt instrument or property exceeds 150% of the
aggregate amount of the cash dividends declared or paid on the Common
Stock of the Company in the 15-month period immediately preceding such
distribution, then and in each such event, unless such distribution is
part of or is made in connection with a transaction to which Section
11(a)(ii) or Section 13 hereof applies, the Exercise Price shall be
reduced by an amount equal to the cash or the Fair Market Value of such
distribution, as the case may be, per share of Common Stock of the
Company. For purposes hereof, the Fair Market Value of any property
distributed to the holders of shares of Common Stock of the Company shall
be the Fair Market Value of such property as determined by an independent
investment banking firm experienced in the valuation of securities or the
other property so distributed, as the case may be, selected in good faith
by the Board of Directors of the Company, or, if no such investment
banking firm is in the good faith judgment of the Board of Directors
available to make such determination, in good faith by the Board of
Directors of the Company, whose determination shall be final and binding
on the Company, the Rights Agent and the holders of Rights.
Section 12. Certification of Adjusted Exercise Price or Number of
Shares. Whenever an adjustment is made as provided in Section 11, 13 or 23(c),
the Company shall (a) promptly prepare a certificate setting forth such
adjustment, and a brief statement of the facts giving rise to such adjustment,
(b) promptly file with the Rights Agent and with each transfer agent for the
Preferred Stock a copy of such certificate and (c) mail a brief summary thereof
to each holder of a Rights Certificate in accordance with Section 25.
Notwithstanding the foregoing sentence, the failure of the Company to make such
certification or give such notice shall not affect the validity of or the force
or effect of the requirement for such adjustment. Any adjustment to be made
pursuant to Section 11, 13 or 23(c) of this Rights Agreement shall be effective
as of the date of the event giving rise to such adjustment. The Rights Agent
shall be fully protected in relying on any such certificate and on any
adjustment therein contained and shall not be deemed to have knowledge of any
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, at any time after the time that any Person
becomes an Acquiring Person, (x) the Company shall, directly or
indirectly, consolidate with, or merge with and into, any other Person or
Persons (other than an Exempt Person or Persons)
-17-
and the Company shall not be the surviving or continuing company of such
consolidation or merger, or (y) any Person or Persons (other than an
Exempt Person) shall, directly or indirectly, consolidate with, or merge
with and into, the Company, and the Company shall be the continuing or
surviving company 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 (other than an Exempt Person) or of the
Company or cash or any other property, or (z) the Company or one or more
of its Subsidiaries shall, directly or indirectly, sell or otherwise
transfer to any other Person or any Affiliate or Associate of such Person,
in one or more transactions, or the Company or one or more of its
Subsidiaries shall sell or otherwise transfer to any Persons in one 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), then, on the first occurrence of any such
event, proper provision shall be made so that (i) each holder of record of
a Right, except as provided in Section 7(e) hereof, shall thereafter have
the right to receive, upon the exercise thereof and payment of the
Exercise Price in accordance with the terms of this Rights Agreement, such
number of shares of validly issued, fully paid, non-assessable and freely
tradable Common Stock of the Principal Party (as defined herein), not
subject to any liens, encumbrances, rights of first refusal or other
adverse claims, as shall equal the result obtained by dividing the
Exercise Price by 50% of the Fair Market Value of the Common Stock of the
Principal Party on the date of the consummation of such consolidation,
merger, sale or transfer; (ii) such Principal Party shall thereafter be
liable for, and shall assume, by virtue of such consolidation, merger,
sale or transfer, all the obligations and duties of the Company pursuant
to this Rights Agreement; (iii) the term "Company" for all purposes of
this Rights Agreement shall thereafter be deemed to refer to such
Principal Party; (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 accordance with the provisions of Section 9
hereof applicable to the reservation of Preferred Stock) in connection
with such consummation as may be necessary to insure 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; provided, however, that, upon the subsequent
occurrence of any merger, consolidation, sale of all or substantially all
of the assets, recapitalization, reclassification of shares,
reorganization or other extraordinary transaction in respect of such
Principal Party, each holder of a Right shall thereupon be entitled to
receive, upon exercise of a Right and payment of the Exercise Price, such
cash, shares, rights, warrants and other property which such holder would
have been entitled to receive had it, at the time of such transaction,
owned the shares of Common Stock of the Principal Party purchasable upon
the exercise of a Right, and such Principal Party shall take such steps
(including, but not limited to, reservation of shares of stock) as may be
necessary to permit the subsequent exercise of the Rights in accordance
with the terms hereof for such cash, shares, rights, warrants and other
property; and (v) the provisions of Section 11(a)(ii) hereof shall be of
no effect following the occurrence of any event described in clause (x),
(y) or (z) above of this Section 13(a).
(b) "Principal Party" shall mean:
(i) in the case of any transaction described in (x) or (y) of the
first sentence of Section 13(a) hereof: (A) the Person that is the issuer
of the securities into which shares
-18-
of Common Stock of the Company are changed or otherwise exchanged or
converted in such merger or consolidation, or, if there is more than one
such issuer, the issuer of the Common Stock of which has the greatest
market value or (B) if no securities are so issued, (x) the Person that is
the other party to the merger or consolidation and that survives such
merger or consolidation, or, if there is more than one such Person, the
Person the Common Stock of which has the greatest market value or (y) if
the Person that is the other party to the merger or consolidation does not
survive the merger or consolidation, the Person that does survive the
merger or consolidation (including the Company if it survives); and
(ii) in the case of any transaction described in (z) of the first
sentence in Section 13(a), the Person that is the party receiving the
greatest portion of the assets or earning power transferred pursuant to
such transaction or transactions, or, if each Person that is a party to
such transaction or transactions receives the same portion of the assets
or earning power so transferred or if the Person receiving the greatest
portion of the assets or earning power cannot be determined, whichever of
such Persons as is the issuer of Common Stock having the greatest market
value of shares outstanding; provided, however, that in any such case, if
the Common Stock of such Person is not at such time and has not been
continuously over the preceding 12-month period registered under Section
12 of the Exchange Act, and such Person is a direct or indirect Subsidiary
of another Person the Common Stock of which is and has been so registered,
the term "Principal Party" shall refer to such other Person, or if such
Person is a Subsidiary, directly or indirectly, of more than one Person,
the Common Stocks of all of which are and have been so registered, the
term "Principal Party" shall refer to whichever of such Persons is the
issuer of the Common Stock having the greatest market value of shares
outstanding.
(c) The Company shall not consummate any consolidation, merger or
sale or transfer of assets or earning power referred to in Section 13(a)
unless the Principal Party shall have a sufficient number of authorized
shares of its Common Stock that have not been issued or reserved for
issuance to permit exercise in full of all Rights in accordance with this
Section 13 and unless prior thereto the Company and the Principal Party
involved therein shall have executed and delivered to the Rights Agent an
agreement confirming that the Principal Party shall, upon consummation of
such consolidation, merger or sale or transfer of assets or earning power,
assume this Rights Agreement in accordance with Section 13(a) hereof and
that all rights of first refusal or preemptive rights in respect of the
issuance of shares of Common Stock of the Principal Party upon exercise of
outstanding Rights have been waived and that such transaction shall not
result in a default by the Principal Party under this Rights Agreement,
and further providing that, as soon as practicable after the date of any
consolidation, merger or sale or transfer of assets or earning power
referred to in Section 13(a) hereof, 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, use its best efforts to cause such
registration statement to become effective as soon as practicable after
such filing and use its best efforts to cause such registration statement
to remain effective (with a prospectus at all times meeting the
requirements of the Act) until
-19-
the date of expiration of the Rights, and similarly comply with applicable
state securities laws;
(ii) use its best efforts to list (or continue the listing of) the
Rights and the securities purchasable upon exercise of the Rights on a
national securities exchange or to meet the eligibility requirements for
quotation on NASDAQ; and
(iii) deliver to holders of the Rights historical financial
statements for the Principal Party which comply in all respects with the
requirements for registration on Form 10 (or any successor form) under the
Exchange Act. In the event that any of the transactions described in
Section 13(a) hereof shall occur at any time after the occurrence of a
transaction described in Section 11(a)(ii) hereof, the Rights which have
not theretofore been exercised shall, subject to the provisions of Section
7(e) hereof, thereafter be exercisable in the manner described in Section
13(a).
(d) In case the Principal Party which is to be a party to a
transaction referred to in this Section 13 has a provision in any of its
authorized securities or in its Certificate of Incorporation or By-Laws or
other instrument governing its corporate affairs, which provision would
have the effect of (i) causing such Principal Party to issue, in
connection with, or as a consequence of, the consummation of a transaction
referred to in this Section 13, shares of Common Stock of such Principal
Party at less than the then Fair Market Value per share (determined
pursuant to Section 11(b) hereof) or securities exercisable for, or
convertible into, Common Stock of such Principal Party at less than such
then Fair Market Value (other than to holders of Rights pursuant to this
Section 13) or (ii) providing for any special tax or similar payment in
connection with the issuance to any holder of a Right of Common Stock of
such Principal Party pursuant to the provisions of this Section 13, then,
in such event, the Company shall not consummate any such transaction
unless prior thereto the Company and such Principal Party shall have
executed and delivered to the Rights Agent a supplemental agreement
providing that the provision in question of such Principal Party shall
have been canceled, waived or amended, or that the authorized securities
shall be redeemed, so that the applicable provision will have no effect in
connection with, or as a consequence of, the consummation of the proposed
transaction.
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
(i.e., Rights to acquire less than one one- thousandth of a share of
Preferred Stock), unless such fractional Rights result from a transaction
referred to in Section 11(a)(i) hereof. If the Company shall determine not
to issue such fractional Rights, then, in lieu of such fractional Rights,
there shall be paid to the holders of record 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 Fair Market Value of a
whole Right.
(b) The Company shall not be required to issue fractions of shares
of Preferred Stock (other than fractions which are integral multiples of
one-thousandth of a
-20-
share) upon exercise of the Rights or to distribute certificates which
evidence fractional shares (other than fractions which are integral
multiples of one-thousandth of a share). In lieu of issuing fractions of
shares of Preferred Stock, the Company may, at its election, issue
depositary receipts evidencing fractions of shares pursuant to an
appropriate agreement between the Company and a depositary selected by it,
provided that such agreement shall provide that the holders of such
depositary receipts shall have all of the rights, privileges and
preferences to which they would be entitled as owners of the Preferred
Stock. With respect to fractional shares that are not integral multiples
of one-thousandth of a share, if the Company does not issue such
fractional shares or depositary receipts in lieu thereof, there shall be
paid to the holders of record of Rights Certificates at the time such
Rights are exercised as herein provided an amount in cash equal to the
same fraction of the Fair Market Value of a share of Preferred Stock.
(c) The holder of a Right by the acceptance of a Right expressly
waives his right to receive any fractional Right or any fractional shares
of Preferred Stock (other than fractions which are integral multiples of
one one-thousandth of a share) upon exercise of a Right.
Section 15. Rights of Action. All rights of action in respect of
this Rights Agreement, except the rights of action given to the Rights Agent in
Section 18 hereof, are vested in the respective registered holders of the Rights
Certificates (and, prior to the Distribution Date, the holders of record of the
Common Stock); and any holder of record 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 right to
exercise the Rights evidenced by such Rights Certificate in the manner provided
in such Rights Certificate and, in this Rights 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 Rights Agreement and will be entitled to specific
performance of the obligations under, and injunctive relief against actual or
threatened violations of, the obligations of any Person subject to this Rights
Agreement.
Section 16. Agreement of Right Holders. Each holder of a Right, by
accepting the same, consents and agrees with the Company and the Rights Agent
and with every other holder of a Right that:
(a) Prior to the Distribution Date, the Rights shall be evidenced by
the Book- Entries representing, or the certificates for, Common Stock
registered in the name of the holders of Common Stock (together, as
applicable, with the Summary of Rights), which Book-Entries representing,
or the certificates for, Common Stock shall also constitute certificates
for Rights, and not by separate Rights Certificates, and each Right shall
be transferable only simultaneously and together with the transfer of
shares of Common Stock;
-21-
(b) After the Distribution Date, the Rights Certificates are
transferable only on the registry books of the Rights Agent if surrendered
at the office of the Rights Agent designated for such purpose, duly
endorsed or accompanied by a proper instrument of transfer;
(c) The Company and the Rights Agent may deem and treat the person
in whose name the Rights Certificate (or, prior to the Distribution Date,
the associated Book-Entry representing, or certificate for, Common Stock)
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 certificate made by
anyone other than the Company or the Rights Agent) for all purposes
whatsoever, and neither the Company nor the Rights Agent shall be affected
by any notice to the contrary.
(d) Notwithstanding anything in this Rights Agreement to the
contrary, neither the Company nor the Rights Agent shall have any
liability to any holder of a Right or a beneficial interest in a Right or
other Person as a result of its inability to perform any of its
obligations under this Rights Agreement by reason of any preliminary or
permanent injunction or other order, decree or ruling issued by a court of
competent jurisdiction or by a governmental, regulatory or administrative
agency or commission, or any statute, rule, regulation or executive order
promulgated or enacted by any governmental authority, prohibiting or
otherwise restraining performance of such obligation; provided, however,
the Company must use its best efforts to have any such order, decree or
ruling lifted or otherwise overturned as soon as possible; and
(e) Rights Beneficially Owned by certain persons will under certain
circumstances set forth in this Rights Agreement become null and void
pursuant to Section 7(e) hereof; and
(f) This Rights Agreement may be supplemented or amended from time
to time pursuant to Section 26 hereof.
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 the holder of Preferred Stock or any
other securities 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 (except as provided in Section 7(f) hereof), or to give or
withhold consent to any corporate action (except as provided in Section 7(f)
hereof), or to receive notice of meetings or other actions affecting
stockholders (except as provided in Section 24 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.
-22-
(a) The Company agrees to pay to the Rights Agent reasonable
compensation for all services rendered by it hereunder and, from time to
time, on demand of the Rights Agent, its reasonable expenses and counsel
fees and other disbursements incurred in the administration and execution
of this Rights Agreement and the exercise and performance of its duties
hereunder. The Company also agrees to indemnify the Rights Agent for, and
to hold it harmless against, any loss, liability, or expense, incurred
without negligence, bad faith or willful misconduct on the part of the
Rights Agent, for anything done or failed to be done by the Rights Agent
in connection with the acceptance and administration of this Rights
Agreement, including the costs and expenses of defending against any claim
of liability relating to the Rights or this Rights Agreement.
(b) The Rights Agent shall be protected against, 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 Rights Agreement in
reliance upon any Rights Certificate or certificate for Preferred Stock or
for other securities of the Company, instrument of assignment or transfer,
power of attorney, endorsement, affidavit, letter, notice, direction,
consent, certificate, statement or other paper or document believed by it
to be genuine and to be signed, executed and, where necessary, verified or
acknowledged, by the proper person or persons or otherwise upon the advice
of counsel as set forth in Section 20.
Section 19. Merger or Consolidation of, or Change in Name of, the
Rights Agent.
(a) Any company into which the Rights Agent or any successor Rights
Agent may be merged or with which it may be consolidated, or any company
resulting from any merger or consolidation to which the Rights Agent or
any successor Rights Agent shall be a party, or any company 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 Rights Agreement without the execution or filing of any paper or any
further act on the part of any of the parties hereto, provided that such
company 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 Rights
Agreement any of the Rights Certificates shall have been countersigned but
not delivered, any such successor Rights Agent may adopt the
countersignature of the predecessor Rights Agent and deliver such Rights
Certificates so countersigned; and in case at that time any of the Rights
Certificates shall not have been countersigned, any successor Rights Agent
may countersign such Rights Certificates 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 Rights
Agreement.
(b) In case at any time the name of the Rights Agent shall be
changed and at such time any of the Right Certificates shall have been
countersigned but not delivered, the Rights Agent may adopt the
countersignature under its prior name and deliver Rights Certificates so
countersigned; 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; in all such
cases such Rights Certificates shall have the full force provided in the
Rights Certificates and in this Rights Agreement.
-23-
Section 20. Duties of Rights Agent. The Rights Agent undertakes the
duties and obligations imposed by this Rights 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 Rights
Agreement the Rights Agent shall deem it necessary or desirable that any
fact or matter be proved or established by the Company prior to taking or
suffering any action hereunder, such fact or matter (unless other evidence
in respect thereof be herein specifically prescribed) may be deemed to be
conclusively proved and established by a certificate signed by the
Chairman of the Board, the Chief Executive Officer, any President or any
Senior or Executive Vice President of the Company and delivered to the
Rights Agent. Any such certificate shall be full authorization to the
Rights Agent for any action taken, suffered or omitted in good faith by it
under the provisions of this Rights Agreement in reliance upon such
certificate.
(c) The Rights Agent shall be liable hereunder to the Company and
any other Person only for its own negligence, bad faith or willful
misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of
the statements of fact or recitals contained in this Rights Agreement or
in the Rights Certificates (except its countersignature thereof) or be
required to verify the same, but all such statements and recitals are and
shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be under any responsibility in
respect of the validity of this Rights 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 Rights
Agreement or in any Rights Certificate; nor shall it be responsible for
any adjustment required under the provisions of Sections 3, 11, 13, 23 and
27 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 receipt of a certificate furnished
pursuant to Section 12, describing 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 Preferred Stock to be
issued pursuant to this Rights Agreement or any Rights Certificate or as
to whether any shares of Preferred Stock will, when issued, be validly
authorized and issued, fully paid and nonassessable.
-24-
(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 the Rights Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from
the Chairman of the Board, the Chief Executive Officer, any President or
any Senior or Executive Vice President 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, suffered or omitted by it
in good faith in accordance with instructions of any such officer or for
any delay in acting while waiting for those instructions.
(h) The Rights Agent and any shareholder, director, officer or
employee of the Rights Agent may buy, sell or deal in any of the Rights or
other securities of the Company or become financially 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 the Rights Agent under this Rights Agreement. Nothing herein
shall preclude the Rights Agent from acting in any other capacity for the
Company or for any other legal entity.
(i) The Rights Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either itself or
by or through its attorneys or agents, and the Rights Agent shall not be
answerable or accountable for any act, default, neglect or misconduct of
any such attorneys or agents or for any loss to the Company resulting from
any such act, default, neglect or misconduct, provided reasonable care was
exercised in the selection and continued employment thereof.
Section 21. Change of Rights Agent. The Rights Agent or any
successor Rights Agent may resign and be discharged from its duties under this
Rights Agreement upon 30 days notice in writing mailed to the Company and to
each transfer agent of the Common Stock and the Preferred Stock by registered or
certified mail. The Company may remove the Rights Agent or any successor Rights
Agent (with or without cause) upon 30 days notice in writing, mailed to the
Rights Agent or successor Rights Agent, as the case may be, and to each transfer
agent of the Common Stock and the Preferred Stock by registered or certified
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.
Notwithstanding the foregoing provisions of this Section 21, in no event shall
the resignation or removal of a Rights Agent be effective until a successor
Rights Agent shall have been appointed and have accepted such appointment. If
the Company shall fail to make such appointment within a period of 30 days after
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 Rights Certificate
for inspection by the Company), then the incumbent Rights Agent or the holder of
record 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) a
company organized and doing business under the
-25-
laws of the United States or of any state thereof, in good standing, which is
authorized under such laws to exercise corporate trust or stock transfer powers
and is subject to supervision or examination in the conduct of its corporate
trust or stock transfer business by federal or state authorities and which has
at the time of its appointment as Rights Agent a combined capital and surplus of
at least $50,000,000 or (b) an Affiliate controlled by a company described in
clause (a) of this sentence. After appointment, the successor Rights Agent shall
be vested with the same powers, rights, duties and responsibilities as if it had
been originally named as Rights Agent without further act or deed, but the
predecessor Rights Agent shall deliver and transfer to the successor Rights
Agent any property at the time held by it hereunder, and execute and deliver any
further assurance, conveyance, act or deed necessary for the purpose. Not later
than the effective date of any such appointment, the Company shall file notice
thereof in writing with the predecessor Rights Agent and each transfer agent of
the Common Stock and Preferred 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, however, or any defect therein, shall not
affect the legality or validity of the resignation or removal of the Rights
Agent or the appointment of the successor Rights Agent, as the case may be.
Notwithstanding the foregoing provisions, in the event of resignation, removal
or incapacity of the Rights Agent, the Company shall have the authority to act
as the Rights Agent until a successor Rights Agent shall have assumed the duties
of the Rights Agent hereunder.
Section 22. Issuance of New Rights Certificates. Notwithstanding any
of the provisions of this Rights 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 Exercise Price per share and the number or kind or class of
shares of stock or other securities or property purchasable under the Rights
Certificates made in accordance with the provisions of this Rights Agreement.
Section 23. Redemption.
(a) The Company may, at its option, but only by the vote of a
majority of the Board of Directors, redeem all but not less than all of
the then outstanding Rights, at any time prior to the Close of Business on
the earlier of (i) the tenth day following the Stock Acquisition Date
(subject to extension by the Company as provided in Section 26 hereof) or
(ii) the Expiration Date, at a redemption price of $0.01 per Right,
subject to adjustments as provided in subsection (c) below (the
"Redemption Price"). Notwithstanding anything contained in this Rights
Agreement to the contrary, the Rights shall not be exercisable pursuant to
Section 11(a)(ii) prior to the expiration of the Company's right of
redemption hereunder.
(b) Without any further action and without any notice, the right to
exercise the Rights will terminate effective at the time so designated by
action of the Board of Directors ordering the redemption of the Rights and
the only right thereafter of the holders of Rights shall be to receive the
Redemption Price. Within 10 days after the effective time of the action of
the Board of Directors ordering the redemption of the Rights, the Company
shall give notice of such redemption to the holders of the then
outstanding Rights by mailing such notice to all such holders at their
last addresses as they appear upon the registry books of the Rights Agent
or, prior to the Distribution Date,
-26-
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 notice of
redemption will state the method by which the payment of the Redemption
Price will be made. At the option of the Board of Directors, the
Redemption Price may be paid in cash to each Rights holder or by the
issuance of shares (and, at the Company's election pursuant to Section
14(b) hereof, cash or depositary receipts in lieu of fractions of shares
other than fractions which are integral multiples of one one-thousandth
(1/1,000) of a share) of Preferred Stock or Common Stock having a Fair
Market Value equal to such cash payment.
(c) In the event the Company shall at any time after the date of
this Rights Agreement (A) pay any dividend on Common Stock in shares of
Common Stock, (B) subdivide or split the outstanding shares of Common
Stock into a greater number of shares or (C) combine or consolidate the
outstanding shares of Common Stock into a smaller number of shares or
effect a reverse split of the outstanding shares of Common Stock, or (D)
combine or consolidate the outstanding shares of Common Stock into a
smaller number of 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 Company), then, and in each such event, the Redemption Price
shall be appropriately adjusted to reflect the foregoing.
Section 24. Notice of Proposed Actions.
(a) In case the Company, after the Distribution Date, shall propose
(i) to effect any of the transactions referred to in Section 11(a)(i) or
11(g) or (ii) to offer to the holders of record of its Common Stock
options, warrants, or other rights to subscribe for or to purchase shares
of Common Stock (including any security convertible into or exchangeable
for Common Stock) or shares of stock of any class or any other securities,
options, warrants, convertible or exchangeable securities or other rights,
or (iii) to effect any reclassification of its Preferred Stock or Common
Stock or any recapitalization or reorganization of the Company, or (iv) to
effect any consolidation or merger with or into, or to effect any sale or
other transfer (or to permit one or more of its Subsidiaries to effect any
sale or other transfer), in one or more transactions, of more than 50% of
the assets or earning power of the Company and its Subsidiaries (taken as
a whole) to, any other Person or Persons, 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 record of a Rights
Certificate, in accordance with Section 25, notice of such proposed
action, which shall specify the record date for the purposes of such
transaction referred to in Section 11(a)(i) or such dividend or
distribution, or the date on which such reclassification,
recapitalization, reorganization, consolidation, merger, sale or transfer
of assets, liquidation, dissolution, or winding up is to take place and
the record date for determining participation therein by the holders of
record of Common Stock or Preferred Stock, if any such date is to be
fixed, and such notice shall be so given in the case of any action covered
by clause (i) or (ii) above at least 10 days prior to the record date for
determining holders of record of the Preferred Stock for purposes of such
action, and in the case of any such other action, at least 10 days prior
to the date of the taking of such proposed action or the date of
participation therein by the holders of record of Common Stock or
-27-
Preferred Stock, whichever shall be the earlier. The failure to give
notice required by this Section 24 or any defect therein shall not affect
the legality or validity of the action taken by the Company or the vote
upon any such action.
(b) In case any of the transactions referred to in Section 11(a)(i),
11(g) or 13 of this Rights Agreement are proposed, then, in any such case,
the Company shall give to each holder of Rights, in accordance with
Section 25 hereof, notice of the proposal of such transaction at least 10
days prior to consummating such transaction, which notice shall specify
the proposed event and the consequences of the event to holders of Rights
under Section 11(a)(i), 11(g) or 13 hereof, as the case may be, and, upon
consummating such transaction, shall similarly give notice thereof to each
holder of Rights.
Section 25. Notices. Notices or demands authorized by this Rights
Agreement to be given or made by the Rights Agent or by the holder of record of
any Rights Certificate or Right 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:
XXXXXX XXXXXX, LTD.
00-00 Xxxxxxx Xxxxxx
Xxxx Xxxxxx Xxxx, XX 00000
(000) 000-0000
Attention: Secretary
Subject to the provisions of Section 21, any notice or demand
authorized by this Rights Agreement to be given or made by the Company or by the
holder of record of any Rights Certificate or Right to or on the Rights Agent
shall be sufficiently given or made if sent by first-class mail, postage
prepaid, addressed (until another address is filed in writing with the Company)
as follows:
AMERICAN STOCK TRANSFER & TRUST COMPANY
00 Xxxxxx Xxxx
Xxxxx Xxxxx
Xxx Xxxx, XX 00000
(000) 000-0000
Attention: Xxxxx Xxxxx
Notices or demands authorized by this Rights Agreement to be given or made by
the Company or the Rights Agent to the holder of record of any Rights
Certificate or Right 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 26. Supplements and Amendments. For as long as the Rights
are then redeemable, the Company may in its sole and absolute discretion, and
the Rights Agent shall if the Company so directs, supplement or amend any
provision of this Rights Agreement without the approval of any holders of the
Rights. At any time when the Rights are not then redeemable, the Company may,
and the Rights Agent shall if the Company so directs, supplement or amend this
Rights Agreement without the approval of any holders of Rights Certificates (i)
to cure any ambiguity, (ii) to correct or supplement any provision contained
herein which may be defective
-28-
or inconsistent with any other provisions herein or (iii) to change or
supplement the provisions hereunder in any manner which the Company may deem
necessary or desirable, provided that no such supplement or amendment pursuant
to this clause (iii) shall materially adversely affect the interest of the
holders of Rights Certificates. Upon the delivery of a certificate from an
appropriate officer of the Company which states that the proposed supplement or
amendment is in compliance with the terms of this Section 26, the Rights Agent
shall execute such supplement or amendment.
Section 27. 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 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
an Exempt Person), together with all Affiliates and Associates of such
Person, becomes the Beneficial Owner of 50% or more of the Voting Stock
then outstanding.
(b) Immediately upon the action of the Board of Directors of the
Company ordering the exchange of any Rights pursuant to paragraph (a) of
this Section 27 and without any further action and without any notice, the
right to exercise such Rights shall terminate and the only right
thereafter of a holder of such Rights shall be to receive that number of
shares of Common Stock equal to the number of such Rights held by such
holder multiplied by the Exchange Ratio. The Company shall promptly give
public notice of any such exchange; provided, however, that the failure to
give, or any defect in, such notice shall not affect the validity of such
exchange. The Company 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 shares of Common Stock for Rights will
be effected and, in the event of any partial exchange, the number of
Rights which will be exchanged. Any partial exchange shall be effected pro
rata based on the number of Rights (other than Rights which have become
void pursuant to the provisions of Section 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 27, the
Company shall take all such action as may be necessary to authorize
additional shares of Common Stock for issuance upon exchange of the
Rights.
-29-
(d) The Company shall not be required to issue fractions of shares
of Common Stock or to distribute certificates which evidence fractional
shares. In lieu of such fractional shares, the Company shall pay 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 paragraph (d), the current
market value of a whole share of Common Stock shall be the closing price
of a share of Common Stock for the Trading Day immediately prior to the
date of exchange pursuant to this Section 27.
Section 28. Successors. All of the covenants and provisions of this
Rights Agreement by or for the benefit of the Company or the Rights Agent shall
bind and inure to the benefit of their respective successors and assigns
hereunder.
Section 29. Benefits of this Rights Agreement. Nothing in this
Rights Agreement shall be construed to give to any Person or corporation other
than the Company, the Rights Agent and the registered holders of the Rights
Certificates (and, prior to the Distribution Date, the holders of Common Stock
in their capacity as holders of the Rights) any legal or equitable right, remedy
or claim under this Rights Agreement; but this Rights Agreement shall be for the
sole and exclusive benefit of the Company, the Rights Agent and the holders of
record of the Rights Certificates (and, prior to the Distribution Date, the
holders of Common Stock in their capacity as holders of the Rights).
Section 30. Delaware Contract. This Rights Agreement and each Rights
Certificate issued hereunder shall be deemed to be a contract made under the
laws of the State of Delaware and for all purposes shall be governed by and
construed and enforced in accordance with the laws of such state applicable to
contracts to be made and performed entirely within such state.
Section 31. Counterparts. This Rights 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 32. Descriptive Headings. Descriptive headings of the
several Sections of this Rights Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the provisions
hereof.
Section 33. Severability. If any term, provision, covenant or
restriction of this Rights 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 Rights
Agreement shall remain in full force and effect and shall in no way be affected,
impaired or invalidated.
Section 34. Determinations And Actions By The Board Of Directors,
Etc.
(a) The Board of Directors of the Company shall have the exclusive
power and authority to administer this Rights Agreement and to exercise
all rights and powers specifically granted to the Board of Directors or to
the Company, or as may be necessary
-30-
or advisable in the administration of this Rights Agreement, including,
without limitation, the right and power to (i) interpret the provisions of
this Rights Agreement and (ii) make all determinations deemed necessary or
advisable for the administration of this Rights Agreement (including a
determination to redeem or not redeem the Rights or to amend the Rights
Agreement and a determination of whether there is an Acquiring Person. 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 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 to any liability to the holders of the
Rights.
(b) It is understood that the TIDE Committee of the Board of
Directors shall review and evaluate this Rights Agreement in order to
consider whether the maintenance of this Rights Agreement continues to be
in the interests of the Company, its shareholders and any other relevant
constituencies of the Company, at least every three years, or sooner if
any Person shall have made a proposal to the Company, or taken any other
action, that, if effective, could cause such Person to become an Acquiring
Person hereunder, if a majority of the members of the TIDE Committee shall
deem such review and evaluation appropriate after giving due regard to all
relevant circumstances. Following each such review, the TIDE Committee
will communicate its conclusions to the full Board of Directors, including
any recommendation in light thereof as to whether this Rights Agreement
should be modified or the Rights should be redeemed. The TIDE Committee
shall be comprised of the Directors of the Company who are not officers,
employees or Affiliates of the Company.
-31-
IN WITNESS WHEREOF, the parties hereto have caused this Rights
Agreement to be duly executed, this 14th day of November, 2001 to be effective
as of the day and year first above written.
XXXXXX XXXXXX, LTD.
By /s/ XXXXXXXX XXXXXX
---------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Chief Executive Officer
AMERICAN STOCK TRANSFER & TRUST
COMPANY
By /s/ XXXXXXX X. XXXXXX
---------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
EXHIBIT A
TO RIGHTS AGREEMENT
UNDER CERTAIN CIRCUMSTANCES AS PROVIDED IN THE
RIGHTS AGREEMENT (AS REFERRED TO BELOW), RIGHTS ISSUED TO
OR BENEFICIALLY OWNED BY ACQUIRING PERSONS OR THEIR AFFILIATES
OR ASSOCIATES (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT)
OR ANY SUBSEQUENT HOLDER OF SUCH RIGHTS SHALL BE NULL AND
VOID AND MAY NOT BE TRANSFERRED TO ANY PERSON.
XXXXXX XXXXXX, LTD.
SUMMARY OF RIGHTS TO PURCHASE
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
On October 30, 2001, the Board of Directors of XXXXXX XXXXXX, LTD.
(the "Company") declared a dividend distribution of one preferred stock purchase
right (a "Right") for each outstanding share of Common Stock, $.0001 par value
per share (the "Common Stock"), of the Company held by stockholders of record on
November 26, 2001 (the "Record Date"). Each Right entitles the registered holder
to purchase from the Company one one-thousandth (1/1,000) of a share of
preferred stock of the Company, designated as Series A Junior Participating
Preferred Stock (the "Preferred Stock") at a price of $75.00 per one
one-thousandth (1/1,000) of a share (the "Exercise Price"). The description and
terms of the Rights are set forth in a Rights Agreement (the "Rights
Agreement"), dated as of November 14, 2001, between the Company and American
Stock Transfer & Trust Company, as Rights Agent (the "Rights Agent").
As discussed below, initially the Rights will not be exercisable,
certificates will not be sent to stockholders and the Rights will automatically
trade with the Common Stock.
The Rights, unless earlier redeemed by the Board of Directors,
become exercisable upon the close of business on the day (the "Distribution
Date") which is the earlier of (i) the tenth day following the first date (the
"Stock Acquisition Date") on which there is a public announcement that a person
or group of affiliated or associated persons (an "Acquiring Person"), with
certain exceptions set forth below, has acquired beneficial ownership of 15% or
more of the outstanding voting stock of the Company or such earlier or later
date (not beyond the thirtieth day after the Stock Acquisition Date) as the
Board of Directors may determine or (ii) the tenth business day (or such later
date as may be determined by the Board of Directors prior to such time as any
person or group of affiliated or associated persons becomes an Acquiring Person)
after the date of the commencement or announcement of a person's or group's
intention to commence a tender or exchange offer the consummation of which would
result in the ownership of 15% or more of the Company's outstanding voting stock
(even if no shares are actually purchased pursuant to such offer); prior
thereto, the Rights will not be exercisable, will not be represented by a
separate certificate, and will not be transferable apart from the Common Stock,
but will instead be evidenced, (i) with respect to any of the shares of Common
Stock held in uncertificated book-entry form (a "Book-Entry") outstanding as of
the Record Date, by such
A-1
Book-Entry and (ii) with respect to the shares of Common Stock evidenced by
Common Stock certificates outstanding as of the Record Date, by such Common
Stock certificate, together with a copy of this Summary of Rights. An Acquiring
Person does not include (A) the Company, (B) any subsidiary of the Company, (C)
any employee benefit plan or employee stock plan of the Company or of any
subsidiary of the Company, or any trust or other entity organized, appointed,
established or holding Common Stock for or pursuant to the terms of any such
plan or (D) any person or group whose ownership of 15% or more of the shares of
voting stock of the Company then outstanding results solely from (i) any action
or transaction or transactions approved by the Board of Directors before such
person or group became an Acquiring Person or (ii) a reduction in the number of
outstanding shares of voting stock of the Company pursuant to a transaction or
transactions approved by the Board of Directors, provided that any person or
group that does not become an Acquiring Person by reason of clause (i) or (ii)
above shall become an Acquiring Person upon acquisition of an additional 1% or
more of the Company's voting stock then outstanding unless such acquisition of
additional voting stock will not result in such person or group becoming an
Acquiring Person by reason of such clause (i) or (ii). For purposes of the
foregoing, outstanding voting stock of the Company includes voting stock that
trades on a "when issued" basis on a national securities exchange or on the
National Association of Securities Dealers, Inc. Automated Quotation System
("NASDAQ").
Until the Distribution Date (or earlier redemption or expiration of
the Rights), new Common Stock certificates issued after November 26, 2001 will
contain a legend incorporating the Rights Agreement by reference. Until the
Distribution Date (or earlier redemption or expiration of the Rights), transfer
on the Company's Direct Registration System of any Common Stock represented by a
Book-Entry or a certificate outstanding as of November 26, 2001, and, in each
case, with or without a copy of this Summary of Rights attached thereto, will
also constitute the transfer of the Rights associated with the Common Stock
represented by such Book-Entry or certificate. As soon as practicable following
the Distribution Date, separate certificates evidencing the Rights ("Rights
Certificates") will be mailed to holders of record of the Common Stock as of the
close of business on the Distribution Date and such separate Rights Certificates
alone will evidence the Rights from and after the Distribution Date.
The Rights are not exercisable until the Distribution Date. Unless
earlier redeemed by the Company as described below, the Rights will expire at
the close of business on November 14, 2011 (the "Expiration Date") (or, if the
Distribution Date shall have occurred before November 14, 2011, at the close of
business on the 90th day following the Distribution Date).
The Preferred Stock is nonredeemable and, unless otherwise provided
in connection with the creation of a subsequent series of preferred stock (i)
subordinate to any other series of the Company's preferred stock and (ii) senior
to the Common Stock. The Preferred Stock may not be issued except upon exercise
of Rights. Each share of Preferred Stock will be entitled to receive when, as
and if declared, a quarterly dividend in an amount equal to (i) 1,000 times the
cash dividends declared on the Company's Common Stock, and (ii) a preferential
cash dividend, if any, in preference to holders of Common Stock in an amount
equal to $50.00 per share of Preferred Stock less the per share amount of all
cash dividends declared on the Preferred Stock pursuant to clause (i) since the
immediately preceding quarterly dividend payment date. In addition, Preferred
Stock is entitled to 1,000 times any noncash dividends (other than dividends
A-2
payable in equity securities) declared on the Common Stock, in like kind. In the
event of the liquidation of the Company, the holders of Preferred Stock will be
entitled to receive, for each share of Preferred Stock, a payment in an amount
equal to the greater of $1.00 per one one-thousandth of a share plus accrued and
unpaid dividends and distributions thereon or 1,000 times the payment made per
share of Common Stock. Each share of Preferred Stock will have 1,000 votes,
voting together with the Common Stock. In the event of any merger, consolidation
or other transaction in which Common Stock is exchanged, each share of Preferred
Stock will be entitled to receive 1,000 times the amount received per share of
Common Stock. The rights of Preferred Stock as to dividends, liquidation and
voting are protected by anti- dilution provisions. If the dividends accrued on
the Preferred Stock for four or more consecutive quarterly dividend periods
shall not have been declared and paid or irrevocably set aside for payment, the
holders of record of the Preferred Stock of the Company of all series (including
the Preferred Stock) will have the right to elect two members to the Company's
Board of Directors.
The number of shares of Preferred Stock issuable upon exercise of
the Rights is subject to certain adjustments from time to time in the event of a
stock dividend on, or a subdivision or combination of, the Common Stock. The
Exercise Price for the Rights is subject to adjustment in the event of
extraordinary distributions of cash or other property to holders of Common
Stock.
Unless the Rights are earlier redeemed, in the event that, after the
time that a Person becomes an Acquiring Person, the Company were to be acquired
in a merger or other business combination (in which any shares of Common Stock
are changed into or exchanged for other securities or assets) or more than 50%
of the assets or earning power of the Company and its subsidiaries (taken as a
whole) were to be sold or transferred in one or a series of related
transactions, the Rights Agreement provides that proper provision will be made
so that each holder of record, other than the Acquiring Person, of a Right will
from and after such date have the right to receive, upon payment of the Exercise
Price, that number of shares of common stock of the acquiring company having a
market value at the time of such transaction equal to two times the Exercise
Price.
In addition, unless the Rights are earlier redeemed, in the event
that a person or group becomes an Acquiring Person, the Rights Agreement
provides that proper provision will be made so that each holder of record of a
Right, other than the Acquiring Person (whose Rights will thereupon become null
and void), will thereafter have the right to receive, upon payment of the
Exercise Price, that number of one one-thousandths of a share of Preferred Stock
having a market value at the time of the transaction equal to two times the
Exercise Price (such market value to be determined with reference to the market
value of the Company's Common Stock as provided in the Rights Agreement).
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 voting 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
per Right (subject to adjustment).
A-3
Fractions of shares of Preferred Stock (other than fractions which
are integral multiples of one one-thousandth of a share) may, at the election of
the Company, be evidenced by depositary receipts. The Company may also issue
cash in lieu of fractional shares which are not integral multiples of one
one-thousandth of a share.
At any time on or prior to the close of business on the earlier of
(i) the tenth day after the Stock Acquisition Date (or such later date as a
majority of the Board of Directors may determine) or (ii) the Expiration Date,
the Company may redeem the Rights in whole, but not in part, at a price of $0.01
per Right (the "Redemption Price"). Immediately upon the effective time of the
action of the Board of Directors of the Company authorizing redemption of the
Rights, the right to exercise the Rights will terminate and the only right of
the holders of Rights will be to receive the Redemption Price.
For as long as the Rights are then redeemable, the Company may amend
the Rights in any manner, including an amendment to extend the time period in
which the Rights may be redeemed. At any time when the Rights are not then
redeemable, the Company may amend the Rights in any manner that does not
materially adversely affect the interests of holders of the Rights as such.
The TIDE Committee of the Company, consisting of Directors who are
neither officers, employees nor affiliates of the Company, will review the
Rights Agreement at least every three years and, if a majority of the members of
the TIDE Committee deems it appropriate, may recommend a modification or
termination of the Rights Agreement.
Until a Right is exercised, the holder, as such, will have no rights
as a stockholder of the Company, including, without limitation, the right to
vote or to receive dividends.
A copy of the Rights Agreement will be filed with the Securities and
Exchange Commission as an Exhibit to the Company's report on Form 8-K relating
to the Rights Agreement. A copy of the Rights Agreement is available free of
charge from the Company. This summary description of the Rights does not purport
to be complete and is qualified in its entirety by reference to the Rights
Agreement which is incorporated in this summary description herein by reference.
A-4
EXHIBIT B
TO RIGHTS AGREEMENT
[Form of Rights Certificate]
Certificate No. W - ____________ Rights
NOT EXERCISABLE AFTER (I) NOVEMBER 14, 2011, OR (II) IF THE
DISTRIBUTION DATE (AS DEFINED BELOW) SHALL HAVE OCCURRED BEFORE THE
DATE SPECIFIED IN CLAUSE (I), THE DATE WHICH IS NINETY (90) DAYS AFTER
THE DISTRIBUTION DATE, OR EARLIER IF REDEEMED. THE RIGHTS ARE SUBJECT
TO REDEMPTION, AT THE OPTION OF THE COMPANY AND UNDER CERTAIN OTHER
CIRCUMSTANCES, AT $0.01 PER RIGHT (SUBJECT TO ADJUSTMENT), ON THE TERMS
SET FORTH OR REFERRED TO IN THE RIGHTS AGREEMENT. UNDER CERTAIN
CIRCUMSTANCES AS PROVIDED IN THE RIGHTS AGREEMENT (AS REFERRED TO
BELOW), RIGHTS ISSUED TO OR BENEFICIALLY OWNED BY ACQUIRING PERSONS OR
THEIR AFFILIATES OR ASSOCIATES (AS SUCH TERMS ARE DEFINED IN THE RIGHTS
AGREEMENT) OR ANY SUBSEQUENT HOLDER OF SUCH RIGHTS SHALL BE NULL AND
VOID AND MAY NOT BE TRANSFERRED TO ANY PERSON.
Rights Certificate
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 November 14, 2001 (the "Rights Agreement") between XXXXXX
XXXXXX, LTD. (the "Company"), and AMERICAN STOCK TRANSFER & TRUST COMPANY (the
"Rights Agent"), to purchase from the Company at any time after the Distribution
Date (as such term is defined in the Rights Agreement) and prior to 5:00 p.m.
(New York City time) on November 14, 2011 (or if the Distribution Date shall
have occurred before November 14, 2011, at the close of business on the 90th day
following the Distribution Date) at the office of the Rights Agent designated in
the Rights Agreement for such purpose, or its successor as Rights Agent, one
one-thousandth (1/1,000) of a fully paid nonassessable share of Series A Junior
Participating Preferred Stock, $.0001 par value per share, of the Company (the
"Preferred Stock") at a purchase price of $75.00, as the same may from time to
time be adjusted in accordance with the Rights Agreement (the "Exercise Price"),
upon presentation and surrender of this Rights Certificate with the Form of
Election to Purchase attached hereto duly executed.
As provided in the Rights Agreement, the Exercise Price and the
number of shares of Preferred Stock 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 and, upon the happening of
certain events, securities other than shares of Preferred Stock,
B-1
or other property, may be acquired upon exercise of the Rights evidenced by this
Rights Certificate, as provided in the Rights Agreement.
This Rights Certificate is subject to all of the terms, provisions
and conditions of the Rights Agreement, which terms, provisions and conditions
are 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 of the Rights Agent,
the Company and the holders of record of Rights Certificates. Copies of the
Rights Agreement are on file at the principal executive office of the Company.
This Rights Certificate, with or without other Rights Certificates,
upon surrender at the office of the Rights Agent designated in the Rights
Agreement for such purpose, may be exchanged for another Rights Certificate or
Rights Certificates of like tenor and date evidencing Rights entitling the
holder of record to purchase a like aggregate number of shares of Preferred
Stock as the Rights evidenced by the Rights Certificate or 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 be redeemed by the Company at its option or
under certain other circumstances at a redemption price of $0.01 per Right. No
fractional shares of Preferred Stock (other than fractions which are integral
multiples of one one-thousandth (1/1,000) of a share) are required to be issued
upon the exercise of any Right or Rights evidenced hereby, and in lieu thereof
the Company may cause depositary receipts to be issued and/or a cash payment may
be made, as provided in the Rights Agreement.
No holder of this Rights Certificate, as such, shall be entitled to
vote or receive dividends or be deemed for any purpose the holder of Preferred
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 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 by the Rights Agent.
B-2
WITNESS the facsimile signature of the proper officers of the
Company and its corporate seal. Dated as of November 14, 2001.
ATTEST:
By
----------------------------------- -----------------------------------
Secretary Name:
Title:
Countersigned:
AMERICAN STOCK TRANSFER & TRUST COMPANY
By:
-------------------------------
Name:
Title:
B-3
[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 Certificates.)
FOR VALUE RECEIVED _____________________________________ hereby
sells, assigns and transfers unto _____________________________________________
________________________________________ (Please print name and address of
transferee) ____________________________________________________________ Rights
evidenced by 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 Medallion Guaranteed:
B-4
Certificate
The undersigned hereby certifies by checking the appropriate boxes
that:
(1) this Rights Certificate [ ] is [ ] is not being sold, assigned
or transferred by or on behalf of a Person who is or was an Acquiring Person or
an Associate or an Affiliate thereof (as such terms are defined in the Rights
Agreement); and
(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 thereof (as such terms are defined in the Rights
Agreement).
Dated: ________________, ____ _______________________________________
Signature
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.
B-5
FORM OF ELECTION TO PURCHASE
(To be executed if registered holder
desires to exercise the Rights Certificate.)
TO:_________________
The undersigned hereby irrevocably elects to exercise _____________
Rights represented by this Rights Certificate to purchase the shares of
Preferred Stock issuable upon the exercise of such Rights and requests that
certificates for such share(s) be issued in the following name:
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 remaining of
such Rights shall be registered in the name of and delivered to:
Please insert social security or other identifying number:______________________
________________________________________________________________________________
________________________________________________________________________________
(Please print name and address)
Dated: ________________, ____
__________________________________________
Signature
(Signature must conform in all respects to
name of holder as specified on the face of
this Rights Certificate)
Signature Medallion Guaranteed
B-6
EXHIBIT C
CERTIFICATE OF DESIGNATIONS
OF
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
OF
XXXXXX XXXXXX, LTD.
Pursuant to Section 151 of the Delaware
General Corporation Law
XXXXXX XXXXXX, LTD., a corporation organized and existing under the
Delaware General Corporation Law (the "Company"), in accordance with the
provisions of Section 151 of such law, DOES HEREBY CERTIFY that pursuant to
authority conferred on the Board of Directors of the Company by its Certificate
of Incorporation and the provisions of Section 151(g) of the General Corporation
Law of the State of Delaware, the Board of Directors on October 30, 2001 adopted
the following resolution:
RESOLVED, that pursuant to the authority vested in the Board of
Directors of the Company in accordance with the provisions of its
Certificate of Incorporation, a series of Preferred Stock, $.0001 par
value per share, of the Company be, and hereby is, created and that the
designation and amount thereof and the voting powers, preferences and
relative, participating, optional or other special rights of the shares of
such series, and the qualifications, limitations or restrictions thereof
are as follows:
Section 1. Designation and Amount. The shares of such series shall
be designated as "Series A Junior Participating Preferred Stock" (the "Series A
Preferred Stock") and the number of shares constituting such series shall be
60,000.
Section 2. Dividends and Distributions.
(A) Subject to the provisions for adjustment hereinafter set forth,
the holders of shares of Series A Preferred Stock shall be entitled to receive,
when, as and if declared by the Board of Directors out of funds legally
available for the purpose, (i) cash dividends in an amount per share (rounded to
the nearest cent) equal to 1000 times the aggregate per share amount of all cash
dividends declared or paid on the Common Stock, $.0001 par value per share, of
the Company (the "Common Stock") and (ii) a preferential cash dividend (the
"Preferential Dividends"), if any, in preference to the holders of Common Stock,
on the first day of February, May, August and November of each year (each a
"Quarterly Dividend Payment Date"), commencing on the first Quarterly Dividend
Payment Date after the first issuance of a share or fraction of a share of
Series A Preferred Stock, payable in an amount (except in the case of the first
Quarterly Dividend Payment if the date of the first issuance of Series A
Preferred Stock is a date other than a Quarterly Dividend Payment date, in which
case such payment shall be a prorated amount of such amount) equal to $50.00 per
share of Series A Preferred Stock less the per share amount of all cash
dividends declared on the Series A Preferred Stock pursuant to clause (i) of
this sentence since the immediately preceding Quarterly Dividend Payment Date
or, with respect to the first Quarterly Dividend Payment Date, since the first
issuance of any share or
C-1
fraction of a share of Series A Preferred Stock. In the event the Company shall,
at any time after the issuance of any share or fraction of a share of Series A
Preferred Stock, make any distribution on the shares of Common Stock of the
Company, whether by way of a dividend or a reclassification of stock, a
recapitalization, reorganization or partial liquidation of the Company or
otherwise, which is payable in cash or any debt security, debt instrument, real
or personal property or any other property (other than cash dividends subject to
the immediately preceding sentence, a distribution of shares of Common Stock or
other capital stock of the Company or a distribution of rights or warrants to
acquire any such share, including any debt security convertible into or
exchangeable for any such share, at a price less than the Fair Market Value (as
defined in Section 7(D) below) of such share), then, and in each such event, the
Company shall simultaneously pay on each then outstanding share of Series A
Preferred Stock of the Company a distribution, in like kind, of 1000 times such
distribution paid on a share of Common Stock (subject to the provisions for
adjustment hereinafter set forth). The dividends and distributions on the Series
A Preferred Stock to which holders thereof are entitled pursuant to clause (i)
of the first sentence of this paragraph and pursuant to the second sentence of
this paragraph are hereinafter referred to as "Dividends" and the multiple of
such cash and non-cash dividends on the Common Stock applicable to the
determination of the Dividends, which shall be 1,000 initially but shall be
adjusted from time to time as hereinafter provided, is hereinafter referred to
as the "Dividend Multiple." In the event the Company shall at any time after
November 26, 2001 ("the Effective Date") (i) declare or pay any dividend or make
any distribution on Common Stock payable in shares of Common Stock, (ii) effect
a subdivision or split or a combination, consolidation or reverse split of the
outstanding shares of Common Stock into a greater or lesser number of shares of
Common Stock, or (iii) 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 Company), then in each such case the Dividend Multiple thereafter
applicable to the determination of the amount of Dividends which holders of
shares of Series A Preferred Stock shall be entitled to receive shall be the
Dividend Multiple applicable immediately prior to such event multiplied by a
fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to such
event.
(B) The Company shall declare each Dividend at the same time it
declares any cash or non-cash dividend or distribution on the Common Stock in
respect of which a Dividend is required to be paid. No cash or non-cash dividend
or distribution on the Common Stock in respect of which a Dividend is required
to be paid shall be paid or set aside for payment on the Common Stock unless a
Dividend in respect of such dividend or distribution on the Common Stock shall
be simultaneously paid, or set aside for payment, on the Series A Preferred
Stock.
(C) Preferential Dividends shall begin to accrue on outstanding
shares of Series A Preferred Stock from the Quarterly Dividend Payment Date next
preceding the date of issuance of any shares of Series A Preferred Stock.
Accrued but unpaid Preferential Dividends shall cumulate but shall not bear
interest. Preferential Dividends paid on the shares of Series A Preferred Stock
in an amount less than the total amount of such dividends at the time accrued
and payable on such shares shall be allocated pro rata on a share-by-share basis
among all such shares at the time outstanding.
C-2
Section 3. Voting Rights. The holders of shares of Series A
Preferred Stock shall have the following voting rights:
(A) Subject to the provisions for adjustment hereinafter set forth,
each share of Series A Preferred Stock shall entitle the holder thereof to 1,000
votes on all matters submitted to a vote of the holders of the Common Stock. The
number of votes which a holder of Series A Preferred Stock is entitled to cast,
as the same may be adjusted from time to time as hereinafter provided, is
hereinafter referred to as the "Vote Multiple." In the event the Company shall
at any time after the Effective Date, (i) declare or pay any dividend on Common
Stock payable in shares of Common Stock, (ii) effect a subdivision or split or a
combination, consolidation or reverse split of the outstanding shares of Common
Stock into a greater or lesser number of shares of Common Stock, or (iii) 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 Company), then in
each such case the Vote Multiple thereafter applicable to the determination of
the number of votes per share to which holders of shares of Series A Preferred
Stock shall be entitled after such event shall be the Vote Multiple immediately
prior to such event multiplied by a fraction the numerator of which is the
number of shares of Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(B) Except as otherwise provided herein, in the Certificate of
Incorporation or By- Laws, the holders of shares of Series A Preferred Stock and
the holders of shares of Common Stock shall vote together as one class on all
matters submitted to a vote of stockholders of the Company.
(C) In the event that the Preferential Dividends accrued on the
Series A Preferred Stock for four or more consecutive quarterly periods shall
not have been declared and paid or set apart for payment, the holders of record
of the Series A Preferred Stock, voting together with the holders of record of
any other series of preferred stock of the Company which shall then have the
right, expressly granted by the Certificate of Incorporation of the Company or
in any resolution or resolutions of the Board of Directors of the Company
providing for the issue of such shares of preferred stock, to elect directors
upon such a default in the payment of dividends by the Company, shall have the
right, at the next meeting of stockholders called for the election of directors,
voting together as a class, to elect two members to the Board of Directors,
which directors shall be in addition to the number provided for pursuant to the
Company's By-laws prior to such event, to serve until the next Annual Meeting
and until their successors are elected and qualified or their earlier
resignation, removal or incapacity or until such earlier time as all accrued and
unpaid Preferential Dividends upon the outstanding shares of Series A Preferred
Stock shall have been paid (or set aside for payment) in full. The holders of
shares of Series A Preferred Stock shall continue to have the right to elect
directors as provided by the immediately preceding sentence until all accrued
and unpaid Preferential Dividends upon the outstanding shares of Series A
Preferred Stock shall have been paid (or set aside for payment) in full. Such
directors may be removed and replaced by such stockholders, and vacancies in
such directorships may be filled only by such stockholders (or by the remaining
director elected by such stockholders, if there be one) in the manner permitted
by law. Subject to the foregoing, any directors elected pursuant to this
paragraph 3(C) shall be elected annually.
C-3
(D) Except as otherwise required by the Certificate of Incorporation
or By-Laws or set forth herein, holders of Series A Preferred Stock shall have
no special voting rights and their consent shall not be required (except to the
extent they are entitled to vote with holders of Common Stock as set forth
herein) for the taking of any corporate action.
Section 4. Certain Restrictions.
(A) Whenever Preferential Dividends or Dividends are in arrears or
the Company shall be in default of payment thereof, thereafter and until all
accrued and unpaid Preferential Dividends and Dividends, whether or not
declared, on shares of Series A Preferred Stock outstanding shall have been paid
or set irrevocably aside for payment in full, and in addition to any and all
other rights which any holder of shares of Series A Preferred Stock may have in
such circumstances, the Company shall not:
(i) declare or pay dividends on, make any other distributions on, or
redeem or purchase or otherwise acquire for consideration, any shares of
stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred Stock;
(ii) declare or pay dividends on or make any other distributions on
any shares of stock ranking on a parity as to dividends with the Series A
Preferred Stock, unless dividends are paid ratably on the Series A
Preferred Stock and all such parity stock on which dividends are payable
or in arrears in proportion to the total amounts to which the holders of
all such shares are then entitled;
(iii) except as permitted by subparagraph (iv) of this paragraph
4(A), redeem or purchase or otherwise acquire for consideration shares of
any stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Preferred Stock, provided
that the Company may at any time redeem, purchase or otherwise acquire
shares of any such parity stock in exchange for shares of any stock of the
Company ranking junior (both as to dividends and upon liquidation,
dissolution or winding up) to the Series A Preferred Stock; or
(iv) purchase or otherwise acquire for consideration any shares of
Series A Preferred Stock, or any shares of stock ranking on a parity with
the Series A Preferred Stock (either as to dividends or upon liquidation,
dissolution or winding up), except in accordance with a purchase offer
made to all holders of such shares upon such terms as the Board of
Directors, after consideration of the respective annual dividend rates and
other relative rights and preferences of the respective series and
classes, shall determine in good faith will result in fair and equitable
treatment among the respective series or classes.
(B) The Company shall not permit any Subsidiary (as hereinafter
defined) of the Company to purchase or otherwise acquire for consideration any
shares of stock of the Company unless the Company could, under paragraph (A) of
this Section 4, purchase or otherwise acquire such shares at such time and in
such manner. A "Subsidiary" of the Company shall mean any company or other
entity of which securities or other ownership interests having
C-4
ordinary voting power sufficient to elect a majority of the board of directors
of such company or other entity or other persons performing similar functions
are beneficially owned, directly or indirectly, by the Company or by any company
or other entity that is otherwise controlled by the Company.
(C) The Company shall not issue any shares of Series A Preferred
Stock except upon exercise of Rights issued pursuant to that certain Rights
Agreement dated as of November 14, 2001 between the Company and American Stock
Transfer & Trust Company, as Rights Agent, a copy of which is on file with the
Secretary of the Company at its principal executive office and shall be made
available to stockholders of record without charge upon written request therefor
addressed to said Secretary. Notwithstanding the foregoing sentence, nothing
contained in the provisions hereof shall prohibit or restrict the Company from
issuing for any purpose any series of Preferred Stock with rights and privileges
similar to, different from, or greater than, those of the Series A Preferred
Stock.
Section 5. Reacquired Shares. Any shares of Series A Preferred Stock
purchased or otherwise acquired by the Company in any manner whatsoever shall be
retired and canceled promptly after the acquisition thereof. All such shares
upon their retirement and cancellation shall become authorized but unissued
shares of Preferred Stock, without designation as to series, and such shares may
be reissued as part of a new series of Preferred Stock to be created by
resolution or resolutions of the Board of Directors.
Section 6. Liquidation, Dissolution or Winding Up. Upon any
voluntary or involuntary liquidation, dissolution or winding up of the Company,
no distribution shall be made (i) to the holders of shares of stock ranking
junior (either as to dividends or upon liquidation, dissolution or winding up)
to the Series A Preferred Stock unless the holders of shares of Series A
Preferred Stock shall have received, subject to adjustment as hereinafter
provided, (A) $1.00 per one one- thousandth (1/1000) of a share plus an amount
equal to accrued and unpaid dividends and distributions thereon, whether or not
declared, to the date of such payment or, (B) if greater than the amount
specified in clause (i)(A) of this sentence, an amount equal to 1,000 times the
aggregate amount to be distributed per share to holders of Common Stock, as the
same may be adjusted as hereinafter provided and (ii) to the holders of stock
ranking on a parity upon liquidation, dissolution or winding up with the Series
A Preferred Stock, unless simultaneously therewith distributions are made
ratably on the Series A Preferred Stock and all other shares of such parity
stock in proportion to the total amounts to which the holders of shares of
Series A Preferred Stock are entitled under clause (i)(A) of this sentence and
to which the holders of such parity shares are entitled, in each case upon such
liquidation, dissolution or winding up. The amount to which holders of Series A
Preferred Stock may be entitled upon liquidation, dissolution or winding up of
the Company pursuant to clause (i)(B) of the foregoing sentence is hereinafter
referred to as the "Participating Liquidation Amount" and the multiple of the
amount to be distributed to holders of shares of Common Stock upon the
liquidation, dissolution or winding up of the Company applicable pursuant to
said clause to the determination of the Participating Liquidation Amount, as
said multiple may be adjusted from time to time as hereinafter provided, is
hereinafter referred to as the "Liquidation Multiple." In the event the Company
shall at any time after the Effective Date (i) declare or pay any dividend on
Common Stock payable in shares of Common Stock, (ii) effect a subdivision or
split or a combination, consolidation or reverse split of the outstanding shares
of Common Stock into a greater or lesser
C-5
number of shares of Common Stock, or (iii) 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 continuing
or surviving company), then, in each such case, the Liquidation Multiple
thereafter applicable to the determination of the Participating Liquidation
Amount to which holders of Series A Preferred Stock shall be entitled after such
event shall be the Liquidation Multiple applicable immediately prior to such
event multiplied by a fraction the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were outstanding immediately
prior to such event.
Section 7. Certain Reclassification and Other Events.
(A) In the event that holders of shares of Common Stock of the
Company receive after the Effective Date in respect of their shares of Common
Stock any share of capital stock of the Company (other than any share of Common
Stock of the Company), whether by way of reclassification, recapitalization,
reorganization, dividend or other distribution or otherwise (a "Transaction"),
then, and in each such event, the dividend rights, voting rights and rights upon
the liquidation, dissolution or winding up of the Company of the shares of
Series A Preferred Stock shall be adjusted so that after such event the holders
of Series A Preferred Stock shall be entitled, in respect of each share of
Series A Preferred Stock held, in addition to such rights in respect thereof to
which such holder was entitled immediately prior to such adjustment, to (i) such
additional dividends as equal the Dividend Multiple in effect immediately prior
to such Transaction multiplied by the additional dividends which the holder of a
share of Common Stock shall be entitled to receive by virtue of the receipt in
the Transaction of such capital stock, (ii) such additional voting rights as
equal the Vote Multiple in effect immediately prior to such Transaction
multiplied by the additional voting rights which the holder of a share of Common
Stock shall be entitled to receive by virtue of the receipt in the Transaction
of such capital stock and (iii) such additional distributions upon liquidation,
dissolution or winding up of the Company as equal the Liquidation Multiple in
effect immediately prior to such Transaction multiplied by the additional amount
which the holder of a share of Common Stock shall be entitled to receive upon
liquidation, dissolution or winding up of the Company by virtue of the receipt
in the Transaction of such capital stock, as the case may be, all as provided by
the terms of such capital stock.
(B) In the event that holders of shares of Common Stock of the
Company receive after the Effective Date in respect of their shares of Common
Stock any right or warrant to purchase Common Stock (including as such a right,
for all purposes of this paragraph, any security convertible into or
exchangeable for Common Stock) at a purchase price per share less than the Fair
Market Value of a share of Common Stock on the date of issuance of such right or
warrant, then and in each such event the dividend rights, voting rights and
rights upon the liquidation, dissolution or winding up of the Company of the
shares of Series A Preferred Stock shall each be adjusted so that after such
event the Dividend Multiple, the Vote Multiple and the Liquidation Multiple
shall each be the product of the Dividend Multiple, the Vote Multiple and the
Liquidation Multiple, as the case may be, in effect immediately prior to such
event multiplied by a fraction the numerator of which shall be the number of
shares of Common Stock outstanding immediately before such issuance of rights or
warrants plus the maximum number of shares of Common Stock which could be
acquired upon exercise in full of all such rights or warrants and the
denominator of which shall be the number of shares of Common Stock outstanding
immediately before such issuance of rights or
C-6
warrants plus the number of shares of Common Stock which could be purchased, at
the Fair Market Value of the Common Stock at the time of such issuance, by the
maximum aggregate consideration payable upon exercise in full of all such rights
or warrants.
(C) In the event that holders of shares of Common Stock of the
Company receive after the Effective Date in respect of their shares of Common
Stock any right or warrant to purchase capital stock of the Company (other than
shares of Common Stock), including as such a right, for all purposes of this
paragraph, any security convertible into or exchangeable for capital stock of
the Company (other than Common Stock), at a purchase price per share less than
the Fair Market Value of such shares of capital stock on the date of issuance of
such right or warrant, then and in each such event the dividend rights, voting
rights and rights upon liquidation, dissolution or winding up of the Company of
the shares of Series A Preferred Stock shall each be adjusted so that after such
event each holder of a share of Series A Preferred Stock shall be entitled, in
respect of each share of Series A Preferred Stock held, in addition to such
rights in respect thereof to which such holder was entitled immediately prior to
such event, to receive (i) such additional dividends as equal the Dividend
Multiple in effect immediately prior to such event multiplied, first, by the
additional dividends to which the holder of a share of Common Stock shall be
entitled upon exercise of such right or warrant by virtue of the capital stock
which could be acquired upon such exercise and multiplied again by the Discount
Fraction (as hereinafter defined) and (ii) such additional voting rights as
equal the Vote Multiple in effect immediately prior to such event multiplied,
first, by the additional voting rights to which the holder of a share of Common
Stock shall be entitled upon exercise of such right or warrant by virtue of the
capital stock which could be acquired upon such exercise and multiplied again by
the Discount Fraction and (iii) such additional distributions upon liquidation,
dissolution or winding up of the Company as equal the Liquidation Multiple in
effect immediately prior to such event multiplied, first, by the additional
amount which the holder of a share of Common Stock shall be entitled to receive
upon liquidation, dissolution or winding up of the Company upon exercise of such
right or warrant by virtue of the capital stock which could be acquired upon
such exercise and multiplied again by the Discount Fraction. For purposes of
this paragraph, the "Discount Fraction" shall be a fraction the numerator of
which shall be the difference between the Fair Market Value of a share of the
capital stock subject to a right or warrant distributed to holders of shares of
Common Stock of the Company as contemplated by this paragraph immediately after
the distribution thereof and the purchase price per share for such share of
capital stock pursuant to such right or warrant and the denominator of which
shall be the Fair Market Value of a share of such capital stock immediately
after the distribution of such right or warrant.
(D) For purposes of this Certificate of Designations, the "Fair
Market Value" of a share of capital stock of the Company (including a share of
Common Stock) on any date shall be deemed to be the average of the daily closing
price per share thereof over the 30 consecutive Trading Days (as such term is
hereinafter defined) immediately prior to such date; provided, however, that, in
the event that such Fair Market Value of any such share of capital stock is
determined during a period which includes any date that is within 30 Trading
Days after (i) the ex-dividend date for a dividend or distribution on stock
payable in shares of such stock or securities convertible into shares of such
stock, or (ii) the effective date of any subdivision, split,
C-7
combination, consolidation, reverse stock split or reclassification of such
stock, then, and in each such case, the Fair Market Value shall be appropriately
adjusted by the Board of Directors of the Company to take into account
ex-dividend or post-effective date trading. The closing price for any day shall
be the last sale price, regular way, or, in case, no such sale takes place on
such day, the average of the closing bid and asked prices, regular way (in
either case, as reported in the applicable transaction reporting system with
respect to securities listed or admitted to trading on the New York Stock
Exchange), or, if the shares are not listed or admitted to trading on the New
York Stock Exchange, as reported in the applicable transaction reporting system
with respect to securities listed on the principal national securities exchange
on which the shares are listed or admitted to trading or, if the shares 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 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 shares selected by the Board of
Directors of the Company. The term "Trading Day" shall mean a day on which the
principal national securities exchange on which the shares are listed or
admitted to trading is open for the transaction of business or, if the shares
are not listed or admitted to trading on any national securities exchange, on
which the New York Stock Exchange or such other national securities exchange as
may be selected by the Board of Directors of the Company is open. If the shares
are not publicly held or not so listed or traded on any day within the period of
30 Trading Days applicable to the determination of Fair Market Value thereof as
aforesaid, "Fair Market Value" shall mean the fair market value thereof per
share as determined in good faith by the Board of Directors of the Company. In
either case referred to in the foregoing sentence, the determination of Fair
Market Value shall be described in a statement filed with the Secretary of the
Company.
Section 8. Consolidation, Merger, etc. In case the Company shall
enter into any consolidation, merger, combination or other transaction in which
the shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case each
outstanding share of Series A Preferred Stock shall at the same time be
similarly exchanged for or changed into the aggregate amount of stock,
securities, cash and/or other property (payable in like kind), as the case may
be, for which or into which each share of Common Stock is changed or exchanged
multiplied by the highest of the Vote Multiple, the Dividend Multiple or the
Liquidation Multiple in effect immediately prior to such event.
Section 9. Effective Time of Adjustments.
(A) Adjustments to the Series A Preferred Stock required by the
provisions hereof shall be effective as of the time at which the event requiring
such adjustments occurs.
(B) The Company shall give prompt written notice to each holder of a
share of Series A Preferred Stock of the effect of any adjustment to the voting
rights, dividend rights or rights upon liquidation, dissolution or winding up of
the Company of such shares required by the provisions hereof. Notwithstanding
the foregoing sentence, the failure of the Company to give such notice shall not
affect the validity of or the force or effect of or the requirement for such
adjustment.
C-8
Section 10. No Redemption. The shares of Series A Preferred Stock
shall not be redeemable at the option of the Company or any holder thereof.
Notwithstanding the foregoing sentence of this Section, the Company may acquire
shares of Series A Preferred Stock in any other manner permitted by law, the
provisions hereof and the Certificate of Incorporation of the Company.
Section 11. Ranking. Unless otherwise provided in the Certificate of
Incorporation of the Company or a Certificate of Designations relating to a
subsequent series of preferred stock of the Company, the Series A Preferred
Stock shall rank junior to all other series of the Company's preferred stock as
to the payment of dividends and the distribution of assets on liquidation,
dissolution or winding up and senior to the Common Stock.
Section 12. Amendment. After the Distribution Date (as defined in
the Rights Agreement), the provisions hereof and the Certificate of
Incorporation of the Company shall not be amended in any manner which would
adversely affect the rights, privileges or powers of the Series A Preferred
Stock without, in addition to any other vote of stockholders required by law,
the affirmative vote of the holders of two-thirds or more of the outstanding
shares of Series A Preferred Stock, voting together as a single class.
C-9
IN WITNESS WHEREOF, this Certificate of Designations is executed on
behalf of the Company by one of its duly authorized officers and attested by its
Secretary this 16th day of November, 2001.
--------------------------------------
Name:
Title:
ATTEST:
--------------------------------------
Name:
Title: Secretary
C-10
