RIGHTS AGREEMENT
between
CBRL GROUP, INC.
and
SUNTRUST BANK, ATLANTA
Dated as of September 7, 1999
RIGHTS AGREEMENT
Table of Contents
1. CERTAIN DEFINITIONS
Section 1.1 Acquiring Person 1
Section 1.2 Affiliate and Associate 2
Section 1.3 Beneficial Owner, Beneficial Ownership and Beneficially Own 2
Section 1.4 Business Day 2
Section 1.5 Close of Business 3
Section 1.6 Distribution Date 3
Section 1.7 Exchange Time 3
Section 1.8 Expiration Time 3
Section 1.9 Flip-in Date 3
Section 1.10 Flip-over Entity 3
Section 1.11 Flip-over Stock 3
Section 1.12 Flip-over Transaction 3
Section 1.13 Market Price 4
Section 1.14 Person 4
Section 1.15 Purchase Price 4
Section 1.16 Redemption Price 5
Section 1.17 Redemption Time 5
Section 1.18 Stock Acquisition Date 5
Section 1.19 Subsidiary 5
Section 1.20 Trading Day 5
2. THE RIGHTS
Section 2.1 Summary of Rights 5
Section 2.2 Legend on Common Stock Certificates 5
Section 2.3 Exercise of Rights; Separation of Rights 6
Section 2.4 Adjustments to Purchase Price; Number of Rights 7
Section 2.5 Date on Which Exercise is Effective 8
Section 2.6 Execution, Authentication, Delivery and Dating of
Rights Certificates 9
Section 2.7 Registration, Registration of Transfer and Exchange 9
Section 2.8 Mutilated, Destroyed, Lost and Stolen Rights Certificates 10
Section 2.9 Persons Deemed Owners 10
Section 2.10 Delivery and Cancellation of Certificates 11
Section 2.11 Agreement of Rights Holders 11
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3. ADJUSTMENTS TO THE RIGHTS IN THE EVENT OF
CERTAIN TRANSACTIONS
Section 3.1 Flip-in 11
Section 3.2 Flip-over 13
4. THE RIGHTS AGENT
Section 4.1 General 13
Section 4.2 Merger or Consolidation or Change of Name of Rights Agent 14
Section 4.3 Duties of Rights Agent 14
Section 4.4 Change of Rights Agent 16
5. MISCELLANEOUS PROVISIONS
Section 5.1 Redemption 17
Section 5.2 Expiration 17
Section 5.3 Issuance of New Rights Certificates 17
Section 5.4 Supplements and Amendments 18
Section 5.5 Fractional Shares 18
Section 5.6 Rights of Action 18
Section 5.7 Holder of Rights Not Deemed a Stockholder 18
Section 5.8 Notice of Proposed Actions 18
Section 5.9 Notices 19
Section 5.10 Suspension of Exercisability 19
Section 5.11 Costs of Enforcement 19
Section 5.12 Successors 20
Section 5.13 Benefits of this Agreement 20
Section 5.14 Determination and Actions by the Board of Directors, etc 20
Section 5.15 Governing Law 20
Section 5.16 Counterparts 20
Section 5.17 Severability 20
EXHIBITS
Exhibit A Form of Rights Certificate A-1
ii
RIGHTS AGREEMENT
----------------
This Rights Agreement (as amended from time to time, this "Agreement"), dated
as of September 7, 1999, is made between CBRL GROUP, INC., a Tennessee
corporation (the "Company"), and SunTrust Bank, Atlanta, as rights agent (the
"Rights Agent", which term includes any successor Rights Agent).
BACKGROUND
----------
A. The Company is seeking to provide for its continuing
financial well being, and recognizes the complex circumstances affecting any
company which has shares traded in the public securities markets.
B. The Company and the Rights Agent seek to enter into this
Rights Agreement that sets the Purchase Exercise Price of specified Rights at
$65.00 per Right, and that provides that the Company and the Rights Agent may
amend the Rights Agreement without the consent of the holders of the Rights
Certificates with respect to matters which do not adversely affect the
interests of those holders.
C. The Company and the Rights Agent now wish to state the Rights
Agreement in its entirety.
THEREFORE, in consideration of the premises and the mutual
consideration set forth in this Agreement, the parties agree as follows:
AGREEMENT
---------
1. CERTAIN DEFINITIONS
-------------------
In this Agreement, the following terms have the meanings indicated:
1.1 "Acquiring Person" means any Person, including Affiliates and
Associates, who is a Beneficial Owner of 15% or more of the outstanding
shares of Company $0.01 par value common stock ("Common Stock"). "Acquiring
Person" does not include any Person who is the Beneficial Owner of 15% or
more of the outstanding shares of Common Stock on the date of this Agreement
or who becomes the Beneficial Owner of 15% or more of the outstanding shares
of Common Stock solely as a result of the Company's purchase of Common Stock,
until that Person later becomes the Beneficial Owner (other than by means of
a stock dividend or stock split) of any additional shares of Common Stock, or
who Beneficially Owns shares of Common Stock consisting solely of one or more
of (a) shares of Common Stock Beneficially Owned pursuant to the grant or
exercise of an option granted to that Person by the Company in connection
with an agreement to merge with, or acquire, the Company at a time at which
there is no Acquiring Person, (b) shares of Common Stock (or securities
convertible into, exchangeable into or exercisable for Common Stock)
Beneficially Owned by that Person or its Affiliates or Associates at the time
of grant of the option or (c ) shares of Common Stock (or securities
convertible into, exchangeable into or exercisable for Common Stock) acquired
by Affiliates or Associates of that Person after the
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time of the grant which, in the aggregate, amount to less than 1% of the
outstanding shares of Common Stock. "Acquiring Person" does not include any
Person that within 5 Business Days of being notified by the Company of its
status as an Acquiring Person, certifies to the Company that the Person
acquired Beneficial Ownership of 15% or more of the Common Stock
inadvertently or without knowledge of the terms of the Rights Agreement, and
without any intention to affect control of the Company, and the certification
is determined by a majority of the Company's Board of Directors to have been
made in good faith, if that Person divests as promptly as practicable (but in
no event more than 30 calendar days following the certification) a sufficient
number of shares of Common Stock so that the Person then Beneficially Owns
less than 15% of the outstanding Common Stock. The Company, any wholly-owned
Subsidiary of the Company and any employee stock ownership or other employee
benefit plan of the Company or a wholly-owned Subsidiary of the Company is
not an Acquiring Person.
1.2 "Affiliate" and "Associate" have the meanings ascribed to
those terms in Rule 12b-2 under the Securities Exchange Act of 1934, as the
Rule is in effect on the date of this Agreement.
1.3 "Beneficial Owner, " "Beneficial Ownership" and "Beneficially
Own". A Person shall be deemed the "Beneficial Owner, " and to have
"Beneficial Ownership" of, and to "Beneficially Own," any securities as to
which that Person, or its Affiliates or Associates, is or may be deemed to be
the beneficial owner pursuant to Rules 13d-3 and 13d-5 under the Securities
Exchange Act of 1934, as those Rules are in effect on the date of this
Agreement, as well as any securities as to which the Person or its Affiliates
or Associates has the right (exercisable immediately or only after the
passage of time or the occurrence of conditions) to become Beneficial Owner
pursuant to any agreement, arrangement or understanding, or upon the exercise
of conversion rights, exchange rights, rights (other than the Rights),
warrants, options, or otherwise. A Person shall not be deemed the
"Beneficial Owner" or to have "Beneficial Ownership" of, or to "Beneficially
Own," any security (a) solely because the security has been tendered pursuant
to a tender or exchange offer made by that Person or any of its Affiliates or
Associates until the tendered security is accepted for payment or exchange or
(b) solely because the Person or any of its Affiliates or Associates has or
shares the power to vote or direct the voting of the security pursuant to a
revocable proxy given in response to a public proxy or consent solicitation
made to more than 10 holders of shares of a class of stock of the Company
registered under Section 12 of the Securities Exchange Act of 1934 and
pursuant to, and in accordance with, the applicable rules and regulations
under the Securities Exchange Act of 1934, except if the power (or the
arrangements relating to the power) is then reportable under Item 6 of
Schedule 13D under the Securities Exchange Act of 1934 (or any similar
provision of a comparable or successor report). In determining the
percentage of the outstanding shares of Common Stock with respect to which a
Person is the Beneficial Owner, all shares as to which that Person is deemed
the Beneficial Owner shall be deemed outstanding.
1.4 "Business Day" means any day other than a Saturday, Sunday
or a day on which banking institutions in the State of Tennessee are
authorized or obligated by law or executive order to close.
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1.5 "Close of business" on any given date means 5:00 p.m.,
central time zone, but if that date is not a Business Day it means 5:00 p.m.,
central time zone, on the next succeeding Business Day.
1.6 "Distribution Date" means the close of business on the
earlier of (a) the 10th business day after the date on which any Person
(other than the Company or any employee benefit plan of the Company)
commences a tender or exchange offer which, if consummated, would result in
that Person's Beneficially Owning 30% or more of the outstanding Common Stock
(or later date the Company Board of Directors may from time to time fix by
resolution adopted prior to a Distribution Date that would otherwise have
occurred) or (b) the Flip-in Date. However, if any tender or exchange offer
referred to in clause (a) of this paragraph is cancelled, terminated or
otherwise withdrawn prior to the Distribution Date without the purchase of
any shares of Company Common Stock pursuant to it, for purposes of this
paragraph, that offer shall be deemed never to have been made.
1.7 "Exchange Time" means the time at which the right to exercise
the Rights shall terminate pursuant to Section 3.1.
1.8 "Expiration Time" means the earliest of (a) the Exchange
Time, (b) the Redemption Time, (c) August 31, 2009 and (d) upon the merger of
the Company into another corporation pursuant to an agreement entered into
when there is no Acquiring Person.
1.9 "Flip-in Date" means the 10th business day after any Stock
Acquisition Date which is not the result of a Flip-over Transaction or any
earlier or later date the Company Board of Directors may from time to time
fix by resolution adopted prior to the Flip-in Date that would otherwise have
occurred.
1.10 "Flip-over Entity" means (a) in the case of a Flip-over
Transaction described in clause 1.12(a), the Person issuing any securities
into which shares of Common Stock are being converted or exchanged and, if no
such securities are being issued, the other party to the Flip-over
Transaction, and (b) in the case of a Flip-over Transaction described in
clause 1.12(b), the Person receiving the greatest portion of the assets or
earning power being transferred in that Flip-over Transaction. If the
affected Person is a subsidiary of a corporation, its parent corporation
shall be the Flip-Over Entity.
1.11 "Flip-over Stock" means the capital stock (or similar equity
interest) with the greatest voting power in respect of the election of
directors (or other persons similarly responsible for direction of the
business and affairs) of the Flip-Over Entity.
1.12 "Flip-over Transaction" means a transaction or series of
transactions, after the time an Acquiring Person exists and controls the
Company Board of Directors, in which, directly or indirectly, (a) the Company
shall consolidate or merge or participate in a share exchange with any other
Person, if any term of or arrangement concerning the treatment of shares of
capital stock in that consolidation, merger, or share exchange relating to
the Acquiring Person is not identical to the terms and arrangements relating
to other holders of the Company's Common Stock, or (b) the Company sells or
otherwise transfers (or one or more of its Subsidiaries sells or otherwise
transfers) assets (i) aggregating more than 50% of
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the assets (measured by either book value or fair market value) or (ii)
generating more than 50% of the operating income or cash flow, of the Company
and its Subsidiaries (taken as a whole) to any Person (other than the Company
or one or more of its wholly- owned Subsidiaries) or to two or more Persons
which are Affiliates or Associates or are otherwise acting in concert.
1.13 "Market Price" per share of any securities on any date means
the average of the daily closing prices per share of those securities on each
of the 20 consecutive Trading Days through and including the Trading Day
immediately preceding the date. However, if an event of a type analogous to
any of the events described in Section 2.4 caused the closing prices used to
determine the Market Price on any Trading Days during the period of 20
Trading Days not to be fully comparable with the closing price on that date,
each closing price shall be appropriately adjusted in order to make it fully
comparable with the closing price on that date. The closing price per share
of any securities on any date shall be the last reported sale price, regular
way, or, in case no such sale takes place or is quoted on that date, the
average of the closing bid and asked prices, regular way, for each share of
those securities, in either case as reported in the principal consolidated
transaction reporting system with respect to securities listed or admitted to
trading on the New York Stock Exchange, Inc., or if the securities are not
listed or admitted to trading on the New York Stock Exchange, Inc., as
reported in the principal consolidated transaction reporting system with
respect to securities listed on the principal national securities exchange on
which the securities are listed or admitted to trading, or if the securities
are not listed or admitted to trading on any national securities exchange, as
reported by the National Association of Securities Dealers, Inc. Automated
Quotation System or other system then in use, or if on any date the
securities are not listed or admitted to trading on any national securities
exchange or quoted by any specified organization, the average of the closing
bid and asked prices as furnished by a professional market maker making a
market in the securities and selected by the Company Board of Directors. If
on any date the securities are not listed or admitted to trading on a
national securities exchange or traded in the over-the-counter market, the
closing price per share of those securities on that date shall mean the fair
value per share of securities on that date as determined in good faith by the
Company Board of Directors, after consultation with a nationally recognized
investment banking firm, and set forth in a certificate delivered to the
Rights Agent.
1.14 "Person" means any individual, firm, partnership,
association, group (as that term is used in Rule 13d-5 under the Securities
Exchange Act of 1934, as the Rule is in effect on the date of this
Agreement), corporation or other entity.
1.15 "Purchase Exercise Price" as of any date means the price at
which a holder may purchase the securities issuable upon exercise of one
whole Right. Until adjustment in accordance with the terms of this
Agreement, the Purchase Exercise Price is $65.00 per Right which will
purchase the appropriate number of shares of Common Stock then available at
a discount of 50% of the Market Price of those securities.
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1.16 "Redemption Price" means an amount equal to one cent, $0.01
per Right.
1.17 "Redemption Time" means the time at which the right to
exercise the Rights terminates pursuant to Section 5.1.
1.18 "Stock Acquisition Date" means the first date of public
announcement by the Company (by any means) that an Acquiring Person exists.
1.19 "Subsidiary" of any Person means any corporation or other
entity of which a majority of the voting power of the equity securities or a
majority of the equity interest is Beneficially Owned, directly or
indirectly, by that Person.
1.20 "Trading Day," when used with respect to any securities,
means a day on which the New York Stock Exchange, Inc. is open for the
transaction of business, or if the securities are not listed or admitted to
trading on the New York Stock Exchange, Inc., a day on which the principal
national securities exchange on which those securities are listed or admitted
to trading is open for the transaction of business or, if those securities
are not listed or admitted to trading on any national securities exchange, a
Business Day.
2. THE RIGHTS
----------
2.1 Summary of Rights. As soon as practicable after the date of
this Agreement, the Company will mail a letter summarizing the terms of the
Rights to each holder of record of Company Common Stock as of the date of
this Agreement, at each holder's address as shown by the records of the
Company.
2.2 Legend on Common Stock Certificates. Certificates for the
Common Stock issued after the date of this Agreement but prior to the
Distribution Date shall evidence one Right for each one share of Company
Common Stock represented by the certificate. Each new certificate shall have
impressed, printed, or written on, or otherwise affixed to it, the following
legend:
This certificate also entitles its holder to certain Rights as set
forth in a Rights Agreement, dated as of September 7, 1999, between
CBRL GROUP, INC. and SunTrust Bank, Atlanta, as amended from time to
time (the "Rights Agreement"), the terms of which are incorporated
in this certificate by this reference and a copy of which is on file
at the principal executive offices of the corporation. Under certain
circumstances, as set forth in the Rights Agreement, Rights may be
redeemed, may be exchanged for shares of Common Stock, may expire,
may become void (if they are "Beneficially Owned" by an "Acquiring
Person" or its Affiliate or Associate, or by any transferee of any
of them) or may be evidenced by separate certificates and may no
longer be evidenced by this certificate. The corporation will mail,
without charge, to the holder of this certificate a copy of the
Rights Agreement, together with any amendments to it, within 5 days
after the receipt of a written request.
Certificates representing shares of Common Stock that were issued and
outstanding at the time of the dividend of the Rights shall evidence one
Right for each one share of Company
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Common Stock evidenced by them, notwithstanding the absence of the foregoing
legend, on the terms set forth in this Agreement.
2.3 Exercise of Rights; Separation of Rights.
(a) Subject to Sections 3.1, 5.1 and 5.10 and subject to specified
adjustment, and except as otherwise specified in this Agreement, after the
Distribution Date and prior to the Expiration Time, each Right will entitle
its holder to purchase for the Purchase Exercise Price one share of Company
Common Stock.
(b) Until the Distribution Date, (i) no Right may be exercised and
(ii) each Right will be evidenced by the certificate for the associated share
of Common Stock and will be transferable only together with, and will be
transferred by a transfer of, its associated share.
(c) After the Distribution Date and prior to the Expiration Time,
the Rights (i) may be exercised and (ii) may be transferred independent of
shares of Common Stock. Promptly following the Distribution Date, the Rights
Agent will mail to each holder of record of Common Stock as of the
Distribution Date (other than any Person whose Rights have become void
pursuant to Section 3.1(b)), at the holder's address as shown by the records
of the Company:
. a certificate (a "Rights Certificate") in substantially the form
of Exhibit A attached to and part of this Agreement, appropriately
completed, representing the number of Rights held by the holder at
the Distribution Date and having the marks of identification or
designation and any legends, summaries or endorsements printed on it
the Company deems appropriate and as are not inconsistent with the
provisions of this Agreement, or as may be required to comply with
any law or with any rule or regulation made pursuant to law or with
any rule or regulation of any national securities exchange or
quotation system on which the Rights may from time to time be listed
or traded, or to conform to usage, and
. a disclosure statement describing the Rights.
However, the Company shall have no obligation to distribute Rights
Certificates to any Acquiring Person or its Affiliates or Associates or any
transferee of any of them.
(d) Rights may be exercised on any Business Day after the
Distribution Date and prior to the Expiration Time by submitting to the
Rights Agent the Rights Certificate evidencing the Rights with an Election to
Exercise (an "Election to Exercise") substantially in the form attached to
the Rights Certificate, duly completed, accompanied by payment in cash, or by
certified or official bank check or money order payable to the order of the
Company, of a sum equal to the Purchase Exercise Price multiplied by the
number of Rights being exercised, plus a sum sufficient to cover any transfer
tax or charge which may be payable in respect of any transfer or delivery of
Rights Certificates or the issuance or
6
delivery of certificates for shares or depositary receipts (or both) in a
name other than that of the holder of the Rights being exercised.
(e) Upon receipt of a properly tendered Rights Certificate, with an
Election to Exercise accompanied by payment as set forth in Section 2.3(d),
the Rights Agent will promptly (i) requisition from the transfer agent stock
certificates evidencing the number of shares or other securities to be
purchased (the Company irrevocably authorizes its transfer agents to comply
with all such requisitions), and if the Company elects pursuant to Section
5.5 not to issue certificates representing fractional shares, requisition
from the depositary selected by the Company depositary receipts representing
the fractional shares to be purchased, or requisition from the Company the
amount of cash to be paid in lieu of fractional shares in accordance with
Section 5.5, and (ii) after receipt of the certificates, depositary receipts
or cash, deliver the appropriate items to or upon the order of the registered
holder of the Rights Certificate, registered (in the case of certificates or
depositary receipts) in the name or names designated by the holder.
(f) If the holder of any Rights exercises less than all the Rights
evidenced by the holder's Rights Certificate, a new Rights Certificate
evidencing the Rights remaining unexercised will be issued by the Rights
Agent to that holder or to the holder's duly authorized assigns.
(g) The Company will (i) take all action necessary to ensure that
(subject to payment of the Purchase Exercise Price) all shares delivered upon
exercise of Rights shall, at the time of delivery of the certificates for
those shares, be duly and validly authorized, executed, issued and delivered
and fully paid and nonassessable; (ii) take all action necessary to comply
with any applicable requirements of the Securities Act of 1933 or the
Securities Exchange Act of 1934, and the rules and regulations under them,
and any other applicable law, rule or regulation, in connection with the
issuance of any shares upon exercise of Rights; and (iii) pay when due and
payable all federal and state transfer taxes and charges which may be payable
in respect of the original issuance or delivery of the Rights Certificates or
of any shares issued upon the exercise of Rights, but the Company shall not
be required to pay any transfer tax or charge which may be payable in respect
of any transfer involved in the transfer or delivery of Rights Certificates
or the issuance or delivery of certificates for shares in a name other than
that of the holder of the Rights being transferred or exercised.
2.4 Adjustments to Purchase Price; Number of Rights.
(a) If the Company at any time after the date of this Agreement and
prior to the Distribution Date (i) declares or pays a dividend on Common
Stock payable in Common Stock, (ii) subdivides the outstanding Common Stock
or (iii) combines the outstanding Common Stock into a smaller number of
shares of Common Stock, the Purchase Exercise Price in effect after the
adjustment will be equal to the Purchase Exercise Price in effect immediately
prior to that adjustment divided by the number of shares of Common Stock (the
"Expansion Factor") that a holder of one share of Common Stock immediately
prior to the dividend, subdivision or combination would hold thereafter as a
result of it, and each Right held prior to the adjustment will become that
number of Rights equal to the Expansion Factor. The adjusted number of Rights
will be deemed to be
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distributed among the shares of Common Stock with respect to which the
original Rights were associated (if they remain outstanding) and the shares
issued in respect of the dividend, subdivision or combination, so that each
one share of Common Stock will have exactly one Right associated with it.
Each adjustment made pursuant to this paragraph shall be made as of the
payment or effective date for the applicable dividend, subdivision or
combination.
(b) If the Company at any time prior to the Distribution Date issues
any shares of Common Stock otherwise than in a transaction referred to in the
preceding paragraph, every one share of Common Stock so issued shall
automatically have one new Right associated with it, which Right shall be
evidenced by the certificate representing the shares. To the extent provided
in Section 5.3, Rights shall be issued by the Company in respect of shares of
Common Stock that are issued or sold by the Company after the Distribution
Date.
(c) If the Company at any time prior to the Distribution Date issues
or distributes any securities or assets in respect of, in lieu of or in
exchange for Common Stock (other than pursuant to a regular periodic cash
dividend or a dividend paid solely in Common Stock) whether by dividend, in
a reclassification or recapitalization (including any transaction involving
a merger, consolidation or share exchange), or otherwise, the Company shall
make adjustments, if any, in the Purchase Exercise Price, number of Rights
and securities or other property purchasable upon exercise of Rights as the
Company Board of Directors, in its sole discretion, deems to be appropriate
under the circumstances in order to adequately protect the interests of the
holders of Rights generally, and the Company and the Rights Agent shall amend
this Agreement as necessary to provide for those adjustments.
(d) Each adjustment to the Purchase Exercise Price made pursuant to
this Section 2.4 shall be calculated to the nearest cent. Whenever an
adjustment to the Purchase Exercise Price is made pursuant to this Section
2.4, the Company shall (i) promptly prepare a certificate setting forth the
adjustment and a brief statement of the facts accounting for the adjustment,
(ii) promptly file with the Rights Agent and with each transfer agent for the
Common Stock a copy of the certificate and (iii) mail a brief summary to each
holder of Rights.
(e) Irrespective of any adjustment or change in the securities
purchasable upon exercise of the Rights, the Rights Certificates issued prior
to and after the adjustment may continue to express the securities so
purchasable which were expressed in the initial Rights Certificates issued
under this Agreement.
2.5 Date on Which Exercise is Effective. Each Person in whose
name any certificate for shares is issued upon the exercise of Rights shall
for all purposes be deemed to have become the holder of record of the shares
represented on, and that certificate shall be dated, the date upon which the
Rights Certificate evidencing the Rights was duly surrendered and payment of
the Purchase Exercise Price for the Rights (and any applicable taxes and
other governmental charges payable by the exercising holder) was made.
However; if the date of surrender and payment is a date upon which the stock
transfer books of the Company are closed, that Person shall be deemed to have
become the record holder of shares on, and that certificate shall be dated,
the next succeeding Business Day on which the stock transfer books of the
Company are open.
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2.6 Execution, Authentication, Delivery and Dating of Rights
Certificates.
(a) The Rights Certificates shall be executed on behalf of the
Company by its Chairman of the Board, President or one of its Vice
Presidents, under its corporate seal reproduced on the certificate, attested
by its Secretary or one of its Assistant Secretaries. The signature of any
of these officers on the Rights Certificates may be manual or facsimile.
(b) Rights Certificates bearing the manual or facsimile signatures
of individuals who were at any time the proper officers of the Company shall
bind the Company, even if those individuals or any of them cease to hold
their offices prior to the countersignature and delivery of the Rights
Certificates.
(c) Promptly after the Company learns of the Distribution Date, the
Company will notify the Rights Agent of the Distribution Date and will
deliver Rights Certificates executed by the Company to the Rights Agent for
countersignature, and subject to Section 3.1(b), the Rights Agent shall
manually countersign and deliver the Rights Certificates to the holders of
the Rights pursuant to Section 2.3(c). No Rights Certificate shall be valid
for any purpose unless manually countersigned by the Rights Agent.
(d) Each Rights Certificate shall be dated the date of its
countersignature.
2.7 Registration, Registration of Transfer and Exchange.
(a) After the Distribution Date, the Company will establish a
register (the "Rights Register") in which, subject to reasonable regulations
as it may prescribe, the Company will provide for the registration and
transfer of Rights. The Rights Agent is appointed "Rights Registrar" for the
purpose of maintaining the Rights Register for the Company and registering
Rights and transfers of Rights after the Distribution Date. If the Rights
Agent ceases to be the Rights Registrar, the Rights Agent will have the right
to examine the Rights Register at all reasonable times after the Distribution
Date.
(b) After the Distribution Date and prior to the Expiration Time,
upon surrender for registration of transfer or exchange of any Rights
Certificate, and subject to the provisions of Section 2.7(d) and (e), the
Company will execute, and the Rights Agent will countersign and deliver, in
the name of the holder or the designated transferee or transferees, as
required pursuant to the holder's instructions, one or more new Rights
Certificates evidencing the same aggregate number of Rights as did the
surrendered Rights Certificate.
(c) Except as otherwise provided in Section 3.1(b), all Rights
issued upon any registration of transfer or exchange of Rights Certificates
shall be the valid obligations of the Company, and those Rights shall be
entitled to the same benefits under this Agreement as the Rights surrendered
upon registration of transfer or exchange.
(d) Every Rights Certificate surrendered for registration of
transfer or exchange shall be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company or the Rights
Agent, as the case may be, duly executed by the holder or the holder's
attorney duly authorized in writing. As a condition to the issuance
9
of any new Rights Certificate under this Section 2.7, the Company may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation to that transaction.
(e) The Company shall not be required to register the transfer or
exchange of any Rights after the Rights have become void under Section
3.1(b), been exchanged under Section 3.1(c) or been redeemed or terminated
under Section 5.1.
2.8 Mutilated, Destroyed, Lost and Stolen Rights Certificates.
(a) If any mutilated Rights Certificate is surrendered to the Rights
Agent prior to the Expiration Time, then, subject to Sections 3.1(b) and 5.1,
the Company shall execute and the Rights Agent shall countersign and deliver
in exchange a new Rights Certificate evidencing the same number of Rights as
did the surrendered Rights Certificate.
(b) If a Person delivers to the Company and the Rights Agent prior
to the Expiration Time (i) evidence to their satisfaction of the destruction,
loss or theft of any Rights Certificate and (ii) security or indemnity as
may be required by them to save each of them and any of their agents
harmless, then, subject to Sections 3.1(b) and 5.1, and in the absence of
notice to the Company or the Rights Agent that the Rights Certificate has
been acquired by a bona fide purchaser, the Company shall execute and upon
its request the Rights Agent shall countersign and deliver, in lieu of any
destroyed, lost or stolen Rights Certificate, a new Rights Certificate
evidencing the same number of Rights as did the destroyed, lost or stolen
Rights Certificate.
(c) As a condition to the issuance of any new Rights Certificate
under this Section 2.8, the Company may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in relation to that transaction and any other expenses (including the fees
and expenses of the Rights Agent) connected with it.
(d) Every new Rights Certificate issued pursuant to this Section 2.8
in lieu of any destroyed, lost or stolen Rights Certificate shall evidence an
original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Rights Certificate shall be at any time enforceable
by anyone, and shall be entitled to all the benefits of this Agreement
equally and proportionately with all other duly issued Rights.
2.9 Persons Deemed Owners. Prior to due presentment of a Rights
Certificate (or, prior to the Distribution Date, the associated Common Stock
certificate) for registration of transfer, the Company, the Rights Agent and
any agent of the Company or the Rights Agent may deem and treat the person in
whose name the Rights Certificate (or, prior to the Distribution Date, the
Common Stock certificate) is registered as the absolute owner of it and of
the Rights evidenced by it for all purposes, including the payment of the
Redemption Price and neither the Company nor the Rights Agent shall be
affected by any notice to the contrary. In this Agreement, the term "holder"
of any Rights means the registered holder of Rights, or prior to the
Distribution Date, the associated shares of Company Common Stock.
10
2.10 Delivery and Cancellation of Certificates. All Rights
Certificates surrendered upon exercise or for registration of transfer or
exchange shall, if surrendered to any person other than the Rights Agent, be
delivered to the Rights Agent and, in any case, shall be promptly cancelled
by the Rights Agent. The Company may at any time deliver to the Rights Agent
for cancellation any Rights Certificates previously countersigned and
delivered which the Company may have acquired in any manner, and all Rights
Certificates so delivered shall be promptly cancelled by the Rights Agent.
No Rights Certificates shall be countersigned in lieu of or in exchange for
any Rights Certificates cancelled as provided in this Section 2.10, except as
expressly permitted by this Agreement. The Rights Agent shall destroy all
cancelled Rights Certificates and deliver a certificate of destruction to the
Company.
2.11 Agreement of Rights Holders. By accepting them, every holder
of Rights consents and agrees with the Company and the Rights Agent and with
every other holder of Rights that:
(a) prior to the Distribution Date, each Right will be transferable
only together with, and will be transferred by a transfer of, the associated
shares of Company Common Stock;
(b) after the Distribution Date, the Rights Certificates will be
transferable only on the Rights Register;
(c) prior to due presentment of a Rights Certificate (or, prior to
the Distribution Date, the associated Common Stock certificate) for
registration of transfer, the Company, the Rights Agent and any agent of the
Company or the Rights Agent may deem and treat the person in whose name the
Rights Certificate (or, prior to the Distribution Date, the associated Common
Stock certificate) is registered as the absolute owner of it and of the
Rights evidenced by it for all purposes, and neither the Company nor the
Rights Agent shall be affected by any notice to the contrary;
(d) Rights beneficially owned by certain Persons will, under the
circumstances set forth in Section 3.1(b), become void; and
(e) this Agreement may be supplemented or amended from time to time
pursuant to Sections 2.4 and 5.4.
3. ADJUSTMENTS TO THE RIGHTS IN THE EVENT OF CERTAIN
TRANSACTIONS
-------------------------------------------------
3.1 Flip-in.
(a) If prior to the Expiration Time a Flip-in Date occurs, then, to
the extent applicable law permits Rights owned by certain Persons referred to
in Section 3.1(b) to become void pursuant to those provisions, the Company
shall take action as necessary to ensure and provide that, except as provided
in this Section 3.1, each Right shall constitute the right to purchase from
the Company, upon exercise in accordance with the terms of this
11
Agreement and subject to Section 5.10, that number of shares of Common Stock
having an aggregate Market Price on the Stock Acquisition Date equal to twice
the Purchase Exercise Price for an amount in cash equal to the Purchase
Exercise Price (this right to be appropriately adjusted in order to protect
the interests of the holders of Rights generally in the event that on or
after the Stock Acquisition Date an event of a type analogous to any of the
events described in Section 2.4(a), (b) or (c) occurred with respect to the
Common Stock).
(b) Any Rights that are or were Beneficially Owned on or after the
Stock Acquisition Date by an Acquiring Person or its Affiliate or Associate
or by any transferee, direct or indirect, of any of them shall become void
and any holder of those Rights (including transferees) shall thereafter have
no right to exercise or transfer those Rights under any provision of this
Agreement. If any Rights Certificate is presented for assignment or exercise
and the Person presenting it will not complete the certification set forth at
the end of the form of Assignment or notice of Election to Exercise and
provide any additional evidence of the identity of the Beneficial Owner and
its Affiliates and Associates (or former Beneficial Owners and their
Affiliates and Associates) the Company reasonably requests, then the Company
shall be entitled conclusively to deem the Beneficial Owner to be an
Acquiring Person or its Affiliate or Associate or a transferee of any of them
and accordingly will deem the Rights evidenced by that certificate to be void
and not transferable or exercisable.
(c) To the extent not prohibited by applicable law, at any time
after a Flip-in Date, the Board of Directors of the Company may elect, at its
option, to exchange all (but not less than all) the then outstanding Rights,
and if there are insufficient authorized but unissued shares of Common Stock
to permit the exercise in full of the Rights, each Right shall automatically
be exchanged, (excluding in either case Rights that have become void pursuant
to the provisions of Section 3.1(b)) for shares of Common Stock at an
exchange ratio of one share of Common Stock per Right, or the lesser number
of shares of Common Stock as is available to be issued in exchange for all
non-void Rights, appropriately adjusted in order to protect the interests of
holders of Rights generally if after the Distribution Date an event of a type
analogous to any of the events described in Section 2.4(a), (b) or (c)
occurred with respect to the Common Stock. This specified exchange ratio, as
adjusted from time to time, is the "Exchange Ratio."
(d) Immediately upon the direction of the Company Board of Directors
to exchange the Rights, or upon the automatic exchange of the Rights, if
there is insufficient Common Stock to permit the exercise in full of the
Rights, without any further action and without any notice, the right to
exercise the Rights will terminate and each Right (other than Rights that
have become void pursuant to Section 3.1(b)) will thereafter represent only
the right to receive a number of shares of Common Stock equal to the Exchange
Ratio. Promptly after that event, the Company shall give notice of it
(specifying the steps to be taken to receive shares of Common Stock in
exchange for Rights) to the Rights Agent and the holders of the Rights (other
than Rights that have become void pursuant to Section 3.1(b)) outstanding
immediately prior to the event by mailing notice in accordance with Section
5.9.
12
(e) Each Person in whose name any certificate for shares is issued
upon the exchange of Rights pursuant to Sections 3.1(c) and (d) shall for all
purposes be deemed to have become the holder of record of the shares
represented on, and the certificate shall be dated, the date upon which the
Rights Certificate evidencing those Rights was duly surrendered and payment
of any applicable taxes and other governmental charges payable by the holder
was made. However, if the date of surrender and payment is a date upon which
the stock transfer books of the Company are closed, that Person shall be
deemed to have become the record holder of those shares on, and the
certificate shall be dated, the next succeeding Business Day on which the
stock transfer books of the Company are open.
3.2 Flip-over.
(a) After the Distribution Date and prior to the Expiration Time,
the Company shall not enter into any agreement with an Acquiring Person (or
any of its Affiliates or Associates) with respect to, consummate or permit to
occur, any Flip-over Transaction unless and until it shall have entered into
a supplemental agreement with the Flip-over Entity, for the benefit of the
holders of the Rights, providing that, upon consummation or occurrence of the
Flip-over Transaction (i) each Right, upon exercise in accordance with the
terms of this Agreement, shall thereafter constitute the right to purchase
from the Flip-over Entity that number of shares of Flip-over Stock having an
aggregate Market Price on the date of consummation or occurrence of the Flip-
over Transaction equal to twice the Purchase Exercise Price, for an amount in
cash equal to the Purchase Exercise Price (this right to be appropriately
adjusted in order to protect the interests of the holders of Rights generally
in the event that after the date of consummation or occurrence an event of a
type analogous to any of the events described in Section 2.4(a) (b) or (c)
occurred with respect to the Flip-over Stock) and (ii) the Flip-over Entity
shall thereafter be liable for, and shall assume, by virtue of the Flip-over
Transaction and the supplemental agreement, all the obligations and duties of
the Company pursuant to this Agreement. The provisions of this Section 3.2
shall apply to successive Flip-over Transactions.
(b) Prior to the Expiration Time, unless the Rights will be redeemed
pursuant to Section 5.1, the Company shall not enter into any agreement with
respect to, consummate or allow any Flip-over Transaction if at the time of
the event there are any rights, warrants or securities outstanding or any
other arrangements, agreements or instruments that would eliminate or
otherwise diminish in any material respect the benefits intended to be
afforded by this Rights Agreement to the holders of Rights upon consummation
of the transaction.
4. THE RIGHTS AGENT
----------------
4.1 General.
(a) The Company appoints the Rights Agent to act as agent for the
Company in accordance with the terms and conditions of this Agreement, and
the Rights Agent accepts its appointment. The Company agrees to pay to the
Rights Agent reasonable compensation for all services rendered by it, and
from time to time, on demand of the Rights Agent, its reasonable expenses and
counsel fees and other disbursements incurred in the administration and
execution of this Agreement and the exercise and performance of its
13
duties. The Company also agrees to indemnify the Rights Agent for, and to
hold it harmless against, any loss, liability, or expense, incurred without
gross negligence, bad faith or willful misconduct by the Rights Agent, for
any action done or omitted by the Rights Agent in connection with the
acceptance and administration of this Agreement, including the costs and
expenses of defending against any claim of liability.
(b) The Rights Agent shall be protected and shall incur no liability
for or in respect of any action taken, allowed or omitted by it in connection
with its administration of this Agreement in reliance upon any certificate
for securities purchasable upon exercise of any Rights, Rights Certificate,
certificate 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.
4.2 Merger or Consolidation or Change of Name of Rights Agent.
(a) Any corporation into which the Rights Agent or any successor
Rights Agent may be merged or with which it may be consolidated, or any
corporation resulting from any merger or consolidation to which the Rights
Agent or any successor Rights Agent is a party, or any corporation succeeding
to the shareholder services business of the Rights Agent or any successor
Rights Agent, will be the successor to the Rights Agent under this Agreement
without the execution or filing of any paper or any further act on the part
of any of the parties, if that successor would be eligible for appointment as
a successor Rights Agent under the provisions of Section 4.4. If at the time
the successor Rights Agent succeeds to the agency created by this Agreement
any of the Rights Certificates have been countersigned but not delivered, any
successor Rights Agent may adopt the countersignature of the predecessor
Rights Agent and deliver the Rights Certificates so countersigned. If at that
time any of the Rights Certificates have not been countersigned, any
successor Rights Agent may countersign those Rights Certificates either in
the name of the predecessor Rights Agent or in the name of the successor
Rights Agent. In all those cases, the Rights Certificates will have the full
effect provided in them and in this Agreement.
(b) If at any time the name of the Rights Agent is changed and at
that time any of the Rights Certificates have been countersigned but not
delivered, the Rights Agent may adopt the countersignature under its prior
name and deliver Rights Certificates so countersigned. If at that time any of
the Rights Certificates have not been countersigned, the Rights Agent may
countersign those Rights Certificates either in its prior name or in its
changed name. In all those cases the Rights Certificates shall have the full
effect provided in them and in this Agreement.
4.3 Duties of Rights Agent. The Rights Agent undertakes the
duties and obligations imposed by this Agreement upon the following terms and
conditions, by all of which the Company and the holders of Rights
Certificates, by their acceptance of the certificates, shall be bound:
(a) The Rights Agent may consult with legal counsel (who may be
legal counsel for the Company), and the opinion of counsel will be full and
complete
14
authorization and protection to the Rights Agent as to any action taken or
omitted by it in good faith and in accordance with that opinion.
(b) Whenever in the performance of its duties under this Agreement
the Rights Agent deems it necessary or desirable that any fact or matter be
established by the Company prior to taking or allowing any action, the fact
or matter may be deemed to be conclusively established by a certificate
signed by a person believed by the Rights Agent to be the Chairman of the
Board, the President or any Vice President and by the Treasurer or any
Assistant Treasurer or the Secretary or any Assistant Secretary of the
Company and delivered to the Rights Agent. Such a certificate will be full
authorization to the Rights Agent for any action taken or allowed in good
faith by it under the provisions of this Agreement in reliance upon that
certificate.
(c) The Rights Agent will be liable only for its own gross
negligence, bad faith or willful misconduct.
(d) The Rights Agent will not be liable for or by reason of any of
the statements of fact or recitals contained in this Agreement or in the
certificates for securities purchasable upon exercise of Rights or the Rights
Certificates or be required to verify them, but all those statements and
recitals are and will be deemed to have been made only by the Company.
(e) The Rights Agent will not be responsible for the validity of
this Agreement or its execution and delivery (except the due authorization,
execution and delivery by the Rights Agent) or in respect of the validity or
execution of any certificate for securities purchasable upon exercise of
Rights or Rights Certificate (except as to its countersignature); nor will it
be responsible for any breach by the Company of any covenant or condition in
this Agreement or in any Rights Certificate; nor will it be responsible for
any change in the exercisability of the Rights (including the Rights becoming
void pursuant to Section 3.1(b)) or any adjustment required under the
provisions of Section 2.4, 3.1 or 3.2; nor will it be responsible for the
manner, method or amount of any adjustment or the ascertaining of the
existence of facts that would require any adjustment (except with respect to
the exercise of Rights after receipt of the certificate contemplated by
Section 2.4 describing the adjustment); nor will it by any act under this
Agreement be deemed to make any representation or warranty as to the
authorization or reservation of any securities purchasable upon exercise of
any Rights or as to whether any securities purchasable upon exercise of
Rights will, when issued, be duly and validly authorized, executed, issued
and delivered and fully paid and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge
and deliver, or cause, all other acts, instruments and assurances reasonably
required by the Rights Agent so it can carry out or perform the provisions of
this Agreement.
(g) The Rights Agent is authorized and directed to accept
instructions with respect to the performance of its duties from any person
believed by the Rights Agent to be the Chairman of the Board, the President
or any Vice President or the Secretary or the Treasurer of the Company, and
to apply to those persons for advice or instructions in
15
connection with its duties, and it shall not be liable for any action taken
or allowed by it in good faith in accordance with instructions of any such
person.
(h) The Rights Agent and any stockholder, director, officer or
employee of the Rights Agent may buy, sell or deal in Common Stock, Rights or
other securities of the Company or become pecuniarily interested in any
transaction in which the Company may be interested, or contract with or lend
money to the Company or otherwise act as fully and freely as though it were
not Rights Agent under this Agreement. Nothing in this Agreement precludes
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 vested in it or perform any duty under this Agreement either itself or
by or through its attorneys or agents, and the Rights Agent will not be
answerable or accountable for any act, default, neglect or misconduct of any
attorneys or agents or for any loss to the Company resulting from any act,
default, neglect or misconduct, provided reasonable care was exercised in
their selection and continued employment.
4.4 Change of Rights Agent. The Rights Agent may resign and be
discharged from its duties under this Agreement upon 90 days notice (or
lesser notice acceptable to the Company) mailed to the Company and to each
transfer agent of Common Stock by registered or certified mail, and to the
holders of the Rights in accordance with Section 5.9. The Company may remove
the Rights Agent upon 30 days prior written notice mailed to the Rights Agent
and to each transfer agent of the Common Stock by registered or certified
mail, and to the holders of the Rights in accordance with Section 5.9. If
the Rights Agent should resign or be removed or otherwise become incapable of
acting, the Company will appoint a successor to the Rights Agent. If the
Company fails to make that appointment within 30 days after removal or after
it has been notified in writing of resignation or incapacity by the resigning
or incapacitated Rights Agent or by the holder of any Rights (which holder
shall, with the notice, submit the holder's Rights Certificate for inspection
by the Company), then the holder of any Rights 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 a court, shall
be a corporation or association organized and doing business under the laws
of the United States or of any state of the United States, in good standing,
which is authorized under applicable laws to exercise the powers of the
Rights Agent contemplated by this Agreement and is subject to supervision or
examination by federal or state authority and which has at the time of its
appointment as Rights Agent a combined capital and surplus of at least
$100,000,000. After appointment, the successor Rights Agent will 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 under this Agreement, and execute
and deliver any further assurance, conveyance, act or deed necessary for the
purpose. Not later than the effective date of the appointment, the Company
will file a notice in writing with the predecessor Rights Agent and each
transfer agent of the Common Stock, and mail a notice in writing to the
holders of the Rights. Failure to give any notice provided for in this
Section 4.4, however, or any defect in a notice, shall not affect the
legality or validity of the
16
resignation or removal of the Rights Agent or the appointment of the
successor Rights Agent.
5. MISCELLANEOUS PROVISIONS
------------------------
5.1 Redemption
(a) The Board of Directors of the Company may, at its option, at any
time prior to the close of business on the Flip-in Date, elect to redeem all
(but not less than all) the then outstanding Rights at the Redemption Price
and the Company, at its option, may pay the Redemption Price either in cash
or shares of Common Stock or other securities of the Company deemed by the
Board of Directors, in the exercise of its sole discretion, to be at least
equivalent in value to the Redemption Price.
(b) Immediately upon the action of the Company Board of Directors
electing to redeem the Rights (or, if the resolution of the Board of
Directors electing to redeem the Rights states that the redemption will not
be effective until the occurrence of a specified future time or event, upon
the occurrence of the future time or event), without any further action and
without any notice, the right to exercise the Rights will terminate and each
Right will thereafter represent only the right to receive the Redemption
Price in cash or securities, as determined by the Board of Directors.
Promptly after the Rights are redeemed, the Company shall give written notice
of redemption to the Rights Agent and the holders of the then outstanding
Rights by mailing that notice in accordance with Section 5.9.
5.2 Expiration. The Rights and this Agreement shall expire at
the Expiration Time and no Person shall have any rights pursuant to this
Agreement or any Right after the Expiration Time, except, if the Rights are
exchanged or redeemed, as provided in Section 3.1(c), 3.2 or 5.1.
5.3 Issuance of New Rights Certificates. The Company may, at its
option, issue new Rights Certificates evidencing Rights in any form approved
by its Board of Directors to reflect any adjustment or change in the number
or kind or class of shares of stock purchasable upon exercise of Rights made
in accordance with the provisions of this Agreement. In addition, in
connection with the issuance or sale of shares of Common Stock by the Company
following the Distribution Date and prior to the Redemption Time or
Expiration Time pursuant to the terms of securities convertible or redeemable
into shares of Common Stock or to options, in each case issued or granted
prior to, and outstanding at, the Distribution Date, the Company shall issue
to the holders of the shares of Common Stock, Rights Certificates
representing the appropriate number of Rights in connection with the issuance
or sale of shares of Company Common Stock. However, in each case, (a) no
Rights Certificate shall be issued, if, and to the extent that, the Company
is advised by counsel that issuance would create a significant risk of
material adverse tax consequences to the Company or to the Person to whom the
Rights Certificates would be issued, (b) no Rights Certificates shall be
issued if, and to the extent that, appropriate adjustment has otherwise been
made in lieu of the issuance of them, and (c) the Company shall have no
obligation to distribute Rights Certificates to any Acquiring Person or its
Affiliate or Associate or any transferee of any of them.
17
5.4 Supplements and Amendments. The Company and the Rights Agent
may from time to time supplement or amend this Agreement (without affecting
the duties, liabilities or indemnification of the Rights Agent) without the
approval of any holders of Rights Certificates in order to cure any
ambiguity, to correct or supplement any provision which is defective or
inconsistent with any other provisions in it, or to make any other provisions
in regard to matters or questions arising under this Agreement which the
Company and the Rights Agent deem necessary or desirable which do not
adversely affect the interests of the holders of Rights Certificates. The
Company may at its sole option and at any time elect to change the Expiration
Date. However, in no event may the duration of the Rights be shortened
without the written consent of the registered holders (other than by a
redemption of the Rights pursuant to Section 5.1).
5.5 Fractional Shares. If the Company elects not to issue
certificates representing fractional shares upon exercise or redemption of
Rights, the Company, in the sole discretion of the Board of Directors, shall
either (a) evidence fractional shares by depositary receipts issued pursuant
to an appropriate agreement between the Company and a depositary selected by
it, and each holder of a depositary receipt shall have all of the rights,
privileges and preferences to which that holder would be entitled as a
beneficial owner of the fractional share, or (b) sell the shares on behalf of
the holders of Rights and pay to the registered holder of those Rights the
appropriate fraction of price per share received upon that sale.
5.6 Rights of Action. Subject to the terms of this Agreement
(including Section 3.1(b)), rights of action in respect of this Agreement,
other than rights of action vested solely in the Rights Agent, are vested in
the respective holders of the Rights. Any holder of any Rights, without the
consent of the Rights Agent or of the holder of any other Rights, may, on the
holder's own behalf and for the holder's own benefit and the benefit of other
holders of Rights, enforce, and may institute and maintain any suit, action
or proceeding against the Company to enforce, or otherwise act in respect of,
the holder's right to exercise Rights in the manner provided in the holder's
Rights Certificate and in this Agreement. Without limiting any remedies
available to the holders of Rights, it is specifically acknowledged that the
holders of Rights would not have an adequate remedy at law for any breach of
this Agreement and will be entitled to specific performance of the
obligations under, and injunctive relief against actual or threatened
violations of the obligations of any Person subject to, this Agreement.
5.7 Holder of Rights Not Deemed a Stockholder. No holder, as
such, of any Rights shall be entitled to vote, receive dividends or be deemed
for any purpose the holder of shares or any other securities which may at any
time be issuable on the exercise of Rights, nor shall anything in this
Agreement or in any Rights Certificate be construed to confer upon the holder
of any Rights, 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, or to give or withhold consent to any
corporate action, or to receive notice of meetings or other actions affecting
stockholders (except as provided in Section 5.8), or to receive dividends or
subscription rights, or otherwise, until those Rights shall have been
exercised or exchanged in accordance with the provisions of this Agreement.
5.8 Notice of Proposed Actions. If the Company proposes after
the Distribution Date and prior to the Expiration Time (a) to effect or
permit (in cases where the
18
Company's permission is required) occurrence of any Flip-in Date or Flip-over
Transaction or (b) to effect the liquidation, dissolution or winding up of
the Company, then, in each case, the Company shall give to each holder of a
Right, in accordance with Section 5.9, a notice of the proposed action, which
shall specify the Flip-in Date or the date on which a Flip-over Transaction,
liquidation, dissolution, or winding up is to take place, and that notice
shall be given at least 20 Business Days prior to the date of the taking of
the proposed action.
5.9 Notices. Notices or demands to the Rights Agent or the
Company authorized or required by this Agreement shall be sufficiently given
if delivered or sent by first class mail, postage prepaid, addressed (until
another address is filed in writing with the Rights Agent) as follows:
Company: CBRL Group, Inc.
X.X. Xxx 000
Xxxxxxx, XX 00000-0000
Attention: General Counsel
Rights Agent: SunTrust Bank, Atlanta
00 Xxxxxxxx Xxxxxx
Xxxx 000-Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Department Manager
Notices or demands to holders authorized or required by this Agreement shall
be sufficiently properly given if delivered or sent by first class mail,
postage prepaid, addressed to the holder at the address of the holder as it
appears upon the registry books of the Rights Agent or, prior to the
Distribution Date, on the registry books of the transfer agent for the Common
Stock. Any notice which is mailed in the manner provided in this Section 5.9
shall be deemed given, whether or not the holder receives the notice.
5.10 Suspension of Exercisability. To the extent that the Company
determines in good faith that some action will or must be taken pursuant to
Section 3.1(a), (b) or (c) or to comply with federal or state securities
laws, the Company may suspend the exercisability of the Rights for a period
of up to 90 days following the date of the occurrence of the Distribution
Date or the Flip-in Date in order to take the action or comply with laws. In
the event of any suspension, the Company shall issue as promptly as
practicable a public announcement stating that the exercisability or
exchangeability of the Rights has been temporarily suspended, but notice
pursuant to Section 5.9 is not required. Failure to give a notice pursuant to
the provisions of this Agreement shall not affect the validity of any action
pursuant to this Section 5.10.
5.11 Costs of Enforcement. The Company agrees that if the Company,
or any other Person, the securities of which are purchasable upon exercise of
Rights fails to fulfill any of its obligations pursuant to this Agreement,
then the Company or the other Person will reimburse the holder of any Rights
for the costs and expenses (including legal fees) incurred by that holder in
actions to enforce the holder's rights pursuant to any Rights or this
Agreement.
19
5.12 Successors. All the covenants and provisions of this Agreement
bind and benefit the Company, the Rights Agent, and upon their acceptance of
Rights, the holders of the Rights, and their respective successors and
assigns.
5.13 Benefits of this Agreement. This Agreement is for the
exclusive benefit of the Company, the Rights Agent and the holders of the
Rights. Nothing in this Agreement shall be construed to give to any Person
other than the Company, the Rights Agent and the holders of the Rights any
legal or equitable right, remedy or claim under this Agreement.
5.14 Determination and Actions by the Board of Directors. The
Board of Directors of the Company has the exclusive power and authority to
administer this Agreement and to exercise all rights and powers specifically
granted to the Board or to the Company, or as may be necessary or advisable
in the administration of this Agreement, including, without limitation, the
right and power to (a) interpret the provisions of this Agreement and (b)
make all determinations deemed necessary or advisable for the administration
of this Agreement. All such actions, calculations, interpretations and
determinations which are done or made by the Board in good faith, shall be
final, conclusive and binding on the Company, the Rights Agent, the holders
of the Rights and all other parties, and shall (including any omissions) not
subject the Board of Directors of the Company to any liability to the holders
of the Rights.
5.15 Governing Law. This Agreement and each right issued under
this Agreement is a contract made under the laws of the State of Tennessee
and for all purposes shall be governed by and construed in accordance with
the laws of Tennessee applicable to contracts to be made and performed
entirely within that State.
5.16 Counterparts. This Agreement may be executed in any number of
counterparts, each of the counterparts shall for all purposes be deemed to be
an original, and all counterparts shall together constitute but one and the
same instrument.
5.17 Severability. If any term or provision of this Agreement,
or its application, in any jurisdiction, and to any extent, is invalid or
unenforceable, that term or provision shall be ineffective as to that
jurisdiction to the extent of the invalidity or unenforceability without
invalidating or rendering unenforceable the remaining terms and provisions,
or their application to circumstances other than those as to which they are
held invalid or unenforceable.
20
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed in Nashville, Tennessee, as of the date first above written.
COMPANY:
CBRL Group, Inc.,
a Tennessee corporation
By: /s/ Xxx X. Xxxxx
------------------------------
Name: Xxx X. Xxxxx
Title: Chairman
RIGHTS AGENT:
SunTrust Bank, Atlanta
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
21
EXHIBIT A
---------
Form of Rights Certificate
--------------------------
Certificate No. W- _____ Rights
THE RIGHTS ARE SUBJECT TO REDEMPTION OR MANDATORY EXCHANGE,
ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. RIGHTS
BENEFICIALLY OWNED BY ACQUIRING PERSONS OR THEIR AFFILIATES
OR ASSOCIATES (AS THOSE TERMS ARE DEFINED IN THE RIGHTS
AGREEMENT) OR TRANSFEREES OF ANY OF THEM WILL BE VOID.
CBRL GROUP, INC.
Rights Certificate
This certifies that _____________________________________________, or
registered assigns, is the registered holder of the number of Rights set
forth above, each of which entitles the registered holder, subject to the
terms, provisions and conditions of the Rights Agreement, dated as of
September 7, 1999 (as amended from time to time, the "Rights Agreement"),
between CBRL Group, Inc., a Tennessee corporation (the "Company"), and
SunTrust Bank, Atlanta, as the rights agent (including any successor under
the Rights Agreement the "Rights Agent"), to purchase from the Company at any
time after the Distribution Date (as defined in the Rights Agreement) and
prior to the close of business on August 1, 2009, one fully paid share of
Company Common Stock, par value $0.01 per share (the "Common Stock"),
(subject to adjustment as provided in the Rights Agreement) at the Purchase
Exercise Price. The Purchase Exercise Price is initially $65.00 per Right
which, under certain conditions at certain times, will permit the purchase of
Common Stock at a discount of 50% from the market value of that Stock, and
is subject to adjustment in certain events as provided in the Rights
Agreement. Purchase is made upon presentation and surrender of this Rights
Certificate with the Form of Election to Exercise duly executed at the
principal office of the Rights Agent in Atlanta, GA.
In certain circumstances described and as provided in the Rights
Agreement, the Rights evidenced by this certificate may entitle the
registered holder to purchase securities of an entity other than the Company.
This Rights Certificate is subject to all of the terms, provisions and
conditions of the Rights Agreement, which are incorporated in and made part
of this certificate by this reference. A full description of the rights,
limitations of rights, obligations, duties and immunities of the Rights
Agent, the Company and the holders of the Rights Certificates is contained in
the Rights Agreement. Copies of the Rights Agreement are on file at the
principal office of the Company and are available without cost upon written
request.
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Upon surrender at the designated office of the Rights Agent, this Rights
Certificate, with or without other Rights Certificates, may be exchanged for
another Rights Certificate or Rights Certificates of like tenor evidencing an
aggregate number of Rights equal to the aggregate number of Rights evidenced
by the surrendered Rights Certificates. If this Rights Certificate is
exercised in part, upon surrender of the certificate, the registered holder
shall be entitled to receive another Rights Certificate or Rights
Certificates for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, each Right evidenced
by this Certificate may be (a) redeemed by the Company under certain
circumstances, at its option, at a redemption price of $0.01 per Right or (b)
exchanged by the Company under certain circumstances for one share of Common
Stock per Right, subject in each case to adjustment in certain events 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 any
securities which may at any time be issuable on the exercise of this
certificate, nor shall anything contained in the Rights Agreement or in this
certificate be construed to confer upon the holder, 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, 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 Rights evidenced by this Rights Certificate have been
exercised or exchanged as provided in the Rights Agreement.
This Rights Certificate is not valid or obligatory for any purpose until
countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the Company
and its corporate seal.
Date: September 7, 1999
ATTEST: CBRL GROUP, INC.,
a Tennessee corporation
___________________________ By
Secretary -------------------------------
Countersigned:
SunTrust Bank, Atlanta
By____________________________
Authorized Signature
A-2
Form of Reverse Side of Rights Certificate
------------------------------------------
FORM OF ASSIGNMENT
------------------
(To be executed by the registered holder to transfer this Rights Certificate.)
FOR VALUE RECEIVED hereby
-------------------------
sells, assigns and transfers unto
----------------------------------------------------------------------------
(Please print the name and address of transferee)
this Rights Certificate, together with all right, title and interest in it,
and irrevocably constitutes and appoints ___________________________________
as Attorney-in-Fact, to transfer the within Rights Certificate on the books
of CBRL GROUP, INC., with full power of substitution.
Dated:
--------------------,------
Signature Guaranteed: --------------------------
Signature
(Signature must correspond to name
as written upon the face of this
Rights Certificate in every
particular, without alteration or
enlargement or any change)
Signatures must be guaranteed by a member firm of a registered national
securities exchange, a member of the National Association of Securities
Dealers, Inc., or a commercial bank or trust company having an office or
correspondent in the United States.
-------------------------------------------------------------
(To be completed if true)
The undersigned hereby represents, for the benefit of all holders of Rights
and shares of Common Stock, that the Rights evidenced by this Rights
Certificate are not, and, to the knowledge of the undersigned, have never
been, Beneficially Owned by an Acquiring Person or its Affiliate or Associate
(as defined in the Rights Agreement).
-----------------------------------
Signature
NOTICE: If the certification set forth above is not completed in connection
with a purported assignment, the Company will deem the Beneficial Owner of the
Rights evidenced by the enclosed Rights Certificate to be an Acquiring Person
or its Affiliate or Associate (as defined in the Rights Agreement) or a
transferee of any of them and accordingly will deem the Rights evidenced by
the Rights Certificate to be void and not transferable or exercisable.
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[To be attached to each Rights Certificate]
FORM OF ELECTION TO EXERCISE
----------------------------
(To be executed if holder desires to
exercise the Rights Certificate.)
TO: CBRL GROUP, INC.
The undersigned hereby irrevocably elects to exercise ___________
whole Rights represented by the attached Rights Certificate to purchase the
shares of Company Common Stock issuable upon the exercise of the Rights and
requests that certificates for those shares be issued in the name of:
---------------------------------- -------------------------------------
Name Social Security or Other Taxpayer ID
Number
----------------------------------
----------------------------------
Address
If the specified number of Rights to be exercised is not all the Rights
evidenced by this Rights Certificate, a new Rights Certificate for the balance
of the Rights shall be registered in the name of and delivered to:
---------------------------------- -------------------------------------
Name Social Security or Other Taxpayer ID
Number
----------------------------------
----------------------------------
Address
Dated:
-----------------, ------
Signature Guaranteed: --------------------------
Signature
(Signature must correspond to name
as written upon the face of this
Rights Certificate in every
particular, without alteration or
enlargement or any change)
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Signatures must be guaranteed by a member firm of a registered national
securities exchange, a member of the National Association of Securities
Dealers, Inc., or a commercial bank or trust company having an office or
correspondent in the United States.
------------------------------------------------------------
(To be completed if true)
The undersigned hereby represents, for the benefit of all holders of
Rights and shares of Common Stock, that the Rights evidenced by the attached
Rights Certificate are not, and, to the knowledge of the undersigned, have
never been, Beneficially Owned by an Acquiring Person or its Affiliate or
Associate (as defined in the Rights Agreement).
-------------------------------
Signature
NOTICE: If the certification set forth above is not completed in connection
with a purported exercise, the Company will deem the Beneficial Owner of the
Rights evidenced by the attached Rights Certificate to be an Acquiring Person
or its Affiliate or Associate (as defined in the Rights Agreement) or a
transferee of any of them and accordingly will deem the Rights evidenced by
the Rights Certificate to be void and not transferable or exercisable.
A-5
