Exhibit 4
RIGHTS AGREEMENT
RIGHTS AGREEMENT, dated as of May 17, 2002 (this "Agreement"),
between Xxxxxx Corporation, a Delaware corporation (the "Corporation"), and
Mellon Investor Services LLC, a New Jersey limited liability company (the
"Rights Agent").
The Board of Directors of the Corporation has authorized and
declared a dividend of one preferred share purchase right (a "Right") for
each Common Share (as hereinafter defined) of the Corporation outstanding
at the close of business on May 28, 2002 (the "Record Date"), each Right
representing the right to purchase one one-thousandth of a Preferred Share
(as hereinafter defined), upon the terms and subject to the conditions
herein set forth, and has further authorized and directed the issuance of
one Right with respect to each Common Share that shall become outstanding
between the Record Date and the earliest of the Distribution Date, the
Redemption Date or the Final Expiration Date (as such terms are hereinafter
defined); provided, however, that Rights may be issued with respect to
Common Shares that shall become outstanding after the Distribution Date and
prior to the earlier of the Redemption Date and the Final Expiration Date
in accordance with the provisions of Section 22 of this Agreement.
Accordingly, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
Section 1. Certain Definitions. For purposes of this Agreement,
the following terms have the meanings indicated:
(a) "Acquiring Person" shall mean any Person who or which,
together with all Affiliates and Associates of such Person, shall be the
Beneficial Owner of 15% or more of the then outstanding Common Shares
(other than as a result of a Permitted Offer) or was such a Beneficial
Owner at any time after the date hereof, whether or not such person
continues to be the Beneficial Owner of 15% or more of the then outstanding
Common Shares. Notwithstanding the foregoing, (A) the term "Acquiring
Person" shall not include (i) the Corporation, (ii) any Subsidiary of the
Corporation, (iii) any employee benefit plan of the Corporation or of any
Subsidiary of the Corporation, (iv) any Person or entity organized,
appointed or established by the Corporation for or pursuant to the terms of
any such plan, (v) any Person, who or which together with all Affiliates
and Associates of such Person becomes the Beneficial Owner of 15% or more
of the then outstanding Common Shares as a result of the acquisition of
Common Shares directly from the Corporation, or (vi) any Grandfathered
Stockholder and (B) no Person shall be deemed to be an "Acquiring Person"
either (X) as a result of the acquisition of Common Shares by the
Corporation which, by reducing the number of Common Shares outstanding,
increases the proportional number of shares beneficially owned by such
Person together with all Affiliates and Associates of such Person; except
that if (i) a Person would become an Acquiring Person (but for the
operation of this subclause X) as a result of the acquisition of Common
Shares by the Corporation, and (ii) after such share acquisition by the
Corporation, such Person, or an Affiliate or Associate of such Person,
becomes the Beneficial Owner of any additional Common Shares, then such
Person shall be deemed an Acquiring Person, or (Y) if a Person did so
inadvertently, (i) promptly after such Person discovers that such Person
would otherwise have become an Acquiring Person (but for the operation of
this subclause Y), such Person notifies the Board of Directors that such
Person did so inadvertently and (ii) within 2 days after such notification,
such Person is the Beneficial Owner of less than 15% of the outstanding
Common Shares.
(b) "Act" shall mean the Securities Act of 1933, as amended
and as in effect on the date of this Agreement.
(c) "Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as amended and in
effect on the date of this Agreement (the "Exchange Act").
(d) A Person shall be deemed the "Beneficial Owner" of and
shall be deemed to "Beneficially Own" any securities:
(i) which such Person or any of such Person's
Affiliates or Associates beneficially owns, directly or indirectly;
(ii) which such Person or any of such Person's
Affiliates or Associates has (A) the right to acquire (whether such right
is exercisable immediately or only after the passage of time) pursuant to
any agreement, arrangement or understanding, or upon the exercise of
conversion rights, exchange rights, rights (other than the Rights),
warrants or options, or otherwise; provided, however, that a Person shall
not be deemed the Beneficial Owner of, or to Beneficially Own, securities
tendered pursuant to a tender or exchange offer made by or on behalf of
such Person or any of such Person's Affiliates or Associates until such
tendered securities are accepted for purchase or exchange; or (B) the right
to vote pursuant to any agreement, arrangement or understanding; provided,
however, that a Person shall not be deemed the Beneficial Owner of, or to
Beneficially Own, any security if the agreement, arrangement or
understanding to vote such security (1) arises solely from a revocable
proxy or consent given to such Person in response to a public proxy or
consent solicitation made pursuant to, and in accordance with, the
applicable rules and regulations promulgated under the Exchange Act and (2)
is not also then reportable on Schedule 13D under the Exchange Act (or any
comparable or successor report); or
(iii) which are beneficially owned, directly or
indirectly, by any other Person (or any Affiliate or Associate thereof)
with which such Person (or any of such Person's Affiliates or Associates)
has any agreement, arrangement or understanding (other than customary
agreements with and between underwriters and selling group members with
respect to a bona fide public offering of securities) relating to the
acquisition, holding, voting (except to the extent contemplated by the
proviso to Section 1(d)(ii)(B)) or disposing of any securities of the
Corporation.
Notwithstanding anything in this definition of Beneficial
Ownership to the contrary, the phrase "then outstanding," when used with
reference to a Person's Beneficial Ownership of securities of the
Corporation, shall mean the number of such securities then issued and
outstanding together with the number of such securities not then actually
issued and outstanding which such Person would be deemed to own
beneficially hereunder.
(e) "Business Day" shall mean any day other than a Saturday,
Sunday, U.S. federal holiday, or a day on which banking institutions in New
York or New Jersey are authorized or obligated by law or executive order to
close.
(f) "Close of Business" on any given date shall mean 5:00
P.M., New York time, on such date; provided, however, that if such date is
not a Business Day it shall mean 5:00 P.M., New York time, on the next
succeeding Business Day.
(g) "Common Shares" when used with reference to the
Corporation shall mean the shares of Common Stock, par value $1.00 per
share, of the Corporation or, in the event of a subdivision, combination or
consolidation with respect to such shares of Common Stock, the shares of
Common Stock resulting from such subdivision, combination or consolidation.
"Common Shares" when used with reference to any Person other than the
Corporation shall mean the capital stock (or equity interest) with the
greatest voting power of such other Person or, if such other Person is a
Subsidiary of another Person, the Person or Persons which ultimately
control such first-mentioned Person.
(h) "Distribution Date" shall have the meaning set forth in
Section 3 hereof.
(i) "Final Expiration Date" shall have the meaning set forth
in Section 7 hereof.
(j) "Grandfathered Stockholder" shall mean any Person who is
the Beneficial Owner of 15% or more of the outstanding Common Shares as of
the date hereof; provided, however, that, except as provided in Section
1(a)(B) hereof and except as a result of a Permitted Offer, any such
Grandfathered Stockholder shall cease to be a Grandfathered Stockholder if,
at any time after the date hereof, such Grandfathered Stockholder becomes
the Beneficial Owner of such additional Common Shares that in the aggregate
exceed 1% of the outstanding Common Shares (the "1% Threshold"), except as
a result of a Permitted Offer. For purposes of determining whether the 1%
Threshold has been exceeded each time a Grandfathered Stockholder becomes
the Beneficial Owner of any additional Common Shares after the date hereof,
the following fraction (expressed as a percentage) shall be used: the
numerator shall be all Common Shares that the Grandfathered Stockholder has
become the Beneficial Owner of since the date hereof and continues to be
the Beneficial Owner of as of the date of the calculation and the
denominator of which shall be the aggregate number of outstanding Common
Shares set forth in the Corporation's Exchange Act filing that was filed as
of the most recent time prior to when the Grandfathered Stockholder became
the Beneficial Owner of additional Common Shares that prompted this
calculation.
(k) "Interested Stockholder" shall mean any Acquiring Person
or any Affiliate or Associate of an Acquiring Person or any other Person in
which any such Acquiring Person, Affiliate or Associate has an interest, or
any other Person acting directly or indirectly on behalf of or in concert
with any such Acquiring Person, Affiliate or Associate.
(l) "Permitted Offer" shall mean a tender or exchange offer
which is for all outstanding Common Shares at a price and on terms
determined, prior to the purchase of shares under such tender or exchange
offer, by at least a majority of the members of the Board of Directors who
are not officers of the Corporation and who are not Acquiring Persons or
Persons who would become Acquiring Persons as a result of the offer in
question or Affiliates, Associates, nominees or representatives of any such
Person, to be adequate (taking into account all factors that such directors
deem relevant including, without limitation, prices that could reasonably
be achieved if the Corporation or its assets were sold on an orderly basis
designed to realize maximum value) and otherwise in the best interests of
the Corporation and its stockholders (other than the Person or any
Affiliate or Associate thereof on whose behalf the offer is being made)
taking into account all factors that such directors may deem relevant.
(m) "Person" shall mean any individual, firm, partnership,
corporation, limited liability company, trust, association, joint venture
or other entity, and shall include any successor (by merger or otherwise)
of such entity.
(n) "Preferred Shares" shall mean shares of Series A Junior
Participating Preferred Stock, with a par value of $2.00 per share of the
Corporation, having the relative rights, preferences and limitations set
forth in the Certificate of Designation, Preferences and Rights attached to
this Agreement as Exhibit A.
(o) "Redemption Date" shall have the meaning set forth in
Section 7 hereof.
(p) "Section 11(a)(ii) Event" shall mean any event described
in Section 11(a)(ii) hereof.
(q) "Section 13 Event" shall mean any event described in
clause (x), (y) or (z) of Section 13(a) hereof.
(r) "Shares Acquisition Date" shall mean the first date of
public announcement (which, for purposes of this definition, shall include,
without limitation, a report filed pursuant to the Exchange Act) by the
Corporation or an Acquiring Person that an Acquiring Person has become
such; provided, that, if such Person is determined not to have become an
Acquiring Person pursuant to Section 1(a)(B)(Y) hereof, then no Shares
Acquisition Date shall be deemed to have occurred.
(s) "Subsidiary" of any Person shall mean any corporation or
other Person of which a majority of the voting power of the voting equity
securities or equity interest is owned, directly or indirectly, by such
Person.
(t) "Triggering Event" shall mean any Section 11(a)(ii)
Event or any Section 13 Event.
Section 2. Appointment of Rights Agent. The Corporation hereby
appoints the Rights Agent to act as rights agent for the Corporation in
accordance with the terms and conditions hereof, and the Rights Agent
hereby accepts such appointment. The Corporation may from time to time
appoint such co-Rights Agents as it may deem necessary or desirable. The
Rights Agents shall have no duty to supervise, and in no event shall be
liable for, the acts or omissions of any such co-Rights Agent or Agents.
Section 3. Issuance of Right Certificates. (a) Until the earlier
of (i) the Shares Acquisition Date or (ii) the Close of Business on the
tenth day (or such later date as may be determined by action of the Board
of Directors of the Corporation) after the date of the commencement by any
Person (other than the Corporation, any Subsidiary of the Corporation, any
employee benefit plan of the Corporation or of any Subsidiary of the
Corporation or any Person or entity organized, appointed or established by
the Corporation for or pursuant to the terms of any such plan) of, or of
the first public announcement of the intention of any Person (other than
the Corporation, any Subsidiary of the Corporation, any employee benefit
plan of the Corporation or of any Subsidiary of the Corporation or any
Person or entity organized, appointed or established by the Corporation for
or pursuant to the terms of any such plan) to commence (which intention to
commence remains in effect for five Business Days after such announcement),
a tender or exchange offer the consummation of which would result in any
Person becoming an Acquiring Person (including, in the case of both (i) and
(ii), any such date which is after the date of this Agreement and prior to
the issuance of the Rights), the earlier of such dates being herein
referred to as the "Distribution Date," (x) the Rights will be evidenced
(subject to the provisions of Section 3(b) hereof) by the certificates for
Common Shares registered in the names of the holders thereof (which
certificates shall also be deemed to be Right Certificates) and not by
separate Right Certificates, and (y) the right to receive Right
Certificates will be transferable only in connection with the transfer of
the underlying Common Shares (including a transfer to the Corporation);
provided, however, that if a tender offer or exchange offer is terminated
prior to the occurrence of a Distribution Date, then no Distribution Date
shall occur as a result of such tender offer or exchange offer. As soon as
practicable after the Distribution Date, the Corporation will prepare and
execute, the Rights Agent will countersign, and the Corporation will send
or cause to be sent by first-class, postage-prepaid mail, to each record
holder of Common Shares as of the close of business on the Distribution
Date, at the address of such holder shown on the records of the
Corporation, a Right Certificate, substantially in the form of Exhibit B
hereto (a "Right Certificate"), evidencing one Right for each Common Share
so held. As of and after the Distribution Date, the Rights will be
evidenced solely by such Right Certificates.
The Corporation shall promptly notify the Rights Agent in writing
upon the occurrence of the Distribution Date and, if such notification is
given orally, the Corporation shall confirm same in writing on or prior to
the Business Day next following. Until such written notice is received by
the Rights Agent, the Rights Agent may presume conclusively for all
purposes that the Distribution Date has not occurred.
(b) As promptly as practicable following the Record Date,
the Corporation will send a copy of a Summary of Rights to Purchase
Preferred Shares, in substantially the form of Exhibit C hereto (the
"Summary of Rights"), by first-class, postage-prepaid mail, to each record
holder of Common Shares as of the Close of Business on the Record Date, at
the address of such holder shown on the records of the Corporation. With
respect to certificates for Common Shares outstanding as of the Record
Date, until the Distribution Date, the Rights will be evidenced by such
certificates registered in the names of the holders thereof together with a
copy of the Summary of Rights attached thereto. Until the Distribution Date
(or the earlier of the Redemption Date or the Final Expiration Date), the
surrender for transfer of any certificate for Common Shares outstanding on
the Record Date, with or without a copy of the Summary of Rights attached
thereto, shall also constitute the transfer of the Rights associated with
such Common Shares. As a result of the execution of this Agreement on May
17, 2002, each share of Common Stock outstanding as of May 28, 2002 shall,
subject to the terms and conditions of this Agreement, also represent one
Right and shall, subject to the terms and conditions of this Agreement,
represent the right to purchase one one-thousandth of a Preferred Share.
(c) Certificates for Common Shares which become outstanding
(including, without limitation, reacquired Common Shares referred to in the
last sentence of this paragraph (c)) after the Record Date but prior to the
earliest of the Distribution Date, the Redemption Date or the Final
Expiration Date, shall be deemed also to be certificates for Rights, and
shall bear the following legend:
This certificate also evidences and entitles the holder hereof to
certain rights as set forth in a Rights Agreement between Xxxxxx
Corporation and Mellon Investor Services LLC, as Rights Agent,
dated as of May 17, 2002 (the "Rights Agreement"), the terms of
which are hereby incorporated herein by reference and a copy of
which is on file at the principal executive offices of Xxxxxx
Corporation. Under certain circumstances, as set forth in the
Rights Agreement, such Rights will be evidenced by separate
certificates and will no longer be evidenced by this certificate.
Xxxxxx Corporation will mail to the holder of this certificate a
copy of the Rights Agreement without charge after receipt of a
written request therefor. Under certain circumstances set forth
in the Rights Agreement, Rights issued to, or held by, any Person
who is, was or becomes an Acquiring Person or an Affiliate or
Associate thereof (as defined in the Rights Agreement) and
certain related persons, whether currently held by or on behalf
of such Person or by any subsequent holder, may become null and
void.
With respect to such certificates containing the foregoing legend, until
the Distribution Date, the Rights associated with the Common Shares
represented by such certificates shall be evidenced by such certificates
alone, and the surrender for transfer of any such certificate shall also
constitute the transfer of the Rights associated with the Common Shares
represented thereby. In the event that the Corporation purchases or
acquires any Common Shares after the Record Date but prior to the
Distribution Date, any Rights associated with such Common Shares shall be
deemed canceled and retired so that the Corporation shall not be entitled
to exercise any Rights associated with the Common Shares which are no
longer outstanding.
Section 4. Form of Right Certificate. (a) The Right Certificates
(and the forms of election to purchase and of assignment to be printed on
the reverse thereof) 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 the
Corporation may deem appropriate (which do not affect the rights, duties or
responsibilities of the Rights Agent) and as are not inconsistent with the
provisions of this Agreement, or as may be required to comply with any
applicable law or with any rule or regulation made pursuant thereto or with
any rule or regulation of any stock exchange on which the Rights may from
time to time be listed, or to conform to usage. Subject to the provisions
of Section 11 and Section 22 hereof, the Right Certificates shall entitle
the holders thereof to purchase such number of one one-thousandths of a
Preferred Share as shall be set forth therein at the price per one
one-thousandth of a Preferred Share set forth therein (the "Purchase
Price"), but the amount and type of securities purchasable upon the
exercise of each Right and the Purchase Price thereof shall be subject to
adjustment as provided herein.
(b) Any Right Certificate issued pursuant to Section 3(a) or
Section 22 hereof that represents Rights which are null and void pursuant
to Section 7(e) of this Agreement and any Right Certificate issued pursuant
to Section 6 or Section 11 hereof upon transfer, exchange, replacement or
adjustment of any other Right Certificate referred to in this sentence,
shall contain (to the extent the Rights Agent has notice thereof and to the
extent feasible) the following legend:
The Rights represented by this Right Certificate are or were
Beneficially Owned by a Person who was or became an Acquiring
Person or an Affiliate or Associate of an Acquiring Person (as
such terms are defined in the Rights Agreement). Accordingly,
this Right Certificate and the Rights represented hereby are null
and void.
Provisions of Section 7(e) of this Rights Agreement shall be operative
whether or not the foregoing legend is contained on any such Right
Certificate. The Corporation shall notify the Rights Agent to the extent
that this Section 4(b) applies.
Section 5. Countersignature and Registration. The Right
Certificates shall be executed on behalf of the Corporation by its Chairman
of the Board, Chief Executive Officer, its President, any of its Vice
Presidents, or its Treasurer, either manually or by facsimile signature,
shall have affixed thereto the Corporation's seal or a facsimile thereof,
and shall be attested by the Secretary or an Assistant Secretary of the
Corporation, either manually or by facsimile signature. The Right
Certificates shall be countersigned by the Rights Agent and shall not be
valid for any purpose unless so countersigned. In case any officer of the
Corporation who shall have signed any of the Right Certificates shall cease
to be such officer of the Corporation before countersignature by the Rights
Agent and issuance and delivery by the Corporation, such Right Certificates
may nevertheless be countersigned by the Rights Agent and issued and
delivered by the Corporation with the same force and effect as though the
person who signed such Right Certificates had not ceased to be such officer
of the Corporation; and any Right Certificate may be signed on behalf of
the Corporation by any Person who, at the actual date of the execution of
such Right Certificate, shall be a proper officer of the Corporation to
sign such Right Certificate, although at the date of the execution of this
Rights Agreement any such Person was not such an officer.
Following the Distribution Date and receipt by the Rights Agent
of notice to that effect and all other relevant information, including but
not limited to a list of record holders of Rights, the Rights Agent will
keep or cause to be kept, at its office designated for surrender of such
Right Certificate or transfer, books for registration and transfer of the
Right Certificates issued hereunder. Such books shall show the names and
addresses of the respective holders of the Right Certificates, the number
of Rights evidenced on its face by each of the Right Certificates and the
certificate number and the date of each of the Right Certificates.
Section 6. Transfer, Split-Up, Combination and Exchange of Right
Certificates; Mutilated, Destroyed, Lost or Stolen Right Certificate.
Subject to the provisions of Section 4(b), Section 7(e) and Section 14
hereof, at any time after the Close of Business on the Distribution Date,
and at or prior to the Close of Business on the earlier of the Redemption
Date or the Final Expiration Date, any Right Certificate or Right
Certificates (other than Right Certificates representing Rights that have
become null and void pursuant to Section 7(e) hereof or that have been
exchanged pursuant to Section 24 hereof) may be transferred, split up,
combined or exchanged for another Right Certificate or Right Certificates,
entitling the registered holder to purchase a like number of one
one-thousandths of a Preferred Share (or, following a Triggering Event,
other securities, as the case may be) as the Right Certificate or Right
Certificates surrendered then entitled such holder (or former holder in the
case of a transfer) to purchase. Any registered holder desiring to
transfer, split up, combine or exchange any Right Certificate or Right
Certificates shall make such request in writing delivered to the Rights
Agent, and shall surrender the Right Certificate or Right Certificates to
be transferred, split up, combined or exchanged at the office or offices of
the Rights Agent designated for such purpose. The Rights Certificates are
transferable only on the registry books of the Rights Agent. Neither the
Rights Agent nor the Corporation shall be obligated to take any action
whatsoever with respect to the transfer of any such surrendered Right
Certificate until the registered holder shall have (i) properly completed
and signed the certificate contained in the form of assignment on the
reverse side of such Right Certificate, (ii) provided such additional
evidence of the identity of the Beneficial Owner (or former Beneficial
Owner) or Affiliates or Associates thereof, and of the Rights evidenced
thereby, as the Corporation or the Rights Agent shall reasonably request,
and (iii) paid a sum sufficient to cover any tax or charge that may be
imposed in connection with any transfer, split up, combination or exchange
of Right Certificates as required by Section 9 hereof. Thereupon the Rights
Agent shall, subject to Section 4(b), Section 7(e) and Section 14 hereof,
countersign and deliver to the Person entitled thereto a Right Certificate
or Right Certificates, as the case may be, as so requested, registered in
such name or names as may be designated by the surrendering registered
holder. The Corporation or the Rights Agent may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer, split up, combination or exchange of Right
Certificates. If the Corporation or the Rights Agent requires such payment,
then the Rights Agent shall not be required to process any transaction
until it is satisfied that all such taxes and/or governmental charges have
been paid.
Upon receipt by the Corporation and the Rights Agent of evidence
satisfactory to them of the loss, theft, destruction or mutilation of a
Right Certificate, and, in case of loss, theft or destruction, of indemnity
or security reasonably satisfactory to them, and, at the Corporation's
request, reimbursement to the Corporation and the Rights Agent of all
reasonable expenses incidental thereto, and upon surrender to the Rights
Agent and cancellation of the Right Certificate if mutilated, the
Corporation will make and deliver a new Right Certificate of like tenor to
the Rights Agent for countersignature and delivery to the registered holder
in lieu of the Right Certificate so lost, stolen, destroyed or mutilated.
Section 7. Exercise of Rights; Purchase Price; Expiration Date of
Rights. (a) Subject to Section 7(e) hereof, the registered holder of any
Right Certificate may exercise the Rights evidenced thereby (except as
otherwise provided herein) in whole or in part at any time after the
Distribution Date upon surrender of the Right Certificate, with the form of
election to purchase and the certificate on the reverse side thereof duly
executed and properly completed, to the Rights Agent at the office or
offices of the Rights Agent designated for such purpose, together with
payment of the aggregate Purchase Price for the total number of one
one-thousandths of a Preferred Share (or other securities, as the case may
be) as to which such surrendered Rights are exercised, and an amount equal
to any tax or charge required to be paid under Section 9 hereof, by
certified check, cashier's check, bank draft or money order payable to the
order of the Corporation, at or prior to the earliest of (i) the Close of
Business on May 28, 2012 (the "Final Expiration Date"), (ii) the time at
which the Rights are redeemed as provided in Section 23 hereof (the
"Redemption Date"); (iii) the time at which the Rights are exchanged as
provided in Section 24 hereof, or (iv) the consummation of a transaction
contemplated by Section 13(d) hereof.
(b) The Purchase Price for each one one-thousandth of a
Preferred Share pursuant to the exercise of a Right shall initially be
$15.00, shall be subject to adjustment from time to time as provided in the
next sentence and in Sections 11 and 13(a) hereof and shall be payable in
accordance with paragraph (c) below. Anything in this Agreement to the
contrary notwithstanding, in the event that at any time after the date of
this Agreement and prior to the Distribution Date, the Corporation shall
(i) declare or pay any dividend on the Common Shares payable in Common
Shares or (ii) effect a subdivision, combination or consolidation of the
Common Shares (by reclassification or otherwise than by payment of
dividends in Common Shares) into a greater or lesser number of Common
Shares, then in any such case, each Common Share outstanding following such
subdivision, combination or consolidation shall continue to have one Right
associated therewith and the Purchase Price following any such event shall
be proportionately adjusted to equal the result obtained by multiplying the
Purchase Price immediately prior to such event by a fraction the numerator
of which shall be the total number of Common Shares outstanding immediately
prior to the occurrence of the event and the denominator of which shall be
the total number of Common Shares outstanding immediately following the
occurrence of such event. The adjustment provided for in the preceding
sentence shall be made successively whenever such a dividend is declared or
paid or such a subdivision, combination or consolidation is effected.
(c) Upon receipt of a Right Certificate representing
exercisable Rights, with the form of election to purchase and the
certificate duly executed and properly completed, accompanied by payment of
the Purchase Price for the Preferred Shares (or other securities, as the
case may be) to be purchased and an amount equal to any applicable tax or
governmental charge required to be paid by the holder of such Right
Certificate in accordance with Section 9 hereof by certified check,
cashier's check or money order payable to the order of the Corporation,
subject to Section 20(k) hereof, the Rights Agent shall thereupon promptly
(i) (A) requisition from any transfer agent of the Preferred Shares
certificates for the number of Preferred Shares to be purchased and the
Corporation hereby irrevocably authorizes its transfer agent to comply with
all such requests, or (B) if the Corporation, in its sole discretion, shall
have elected to deposit the Preferred Shares issuable upon exercise of the
Rights hereunder into a depositary, requisition from the depositary agent
depositary receipts representing such number of one one-thousandths of a
Preferred Share as are to be purchased (in which case certificates for the
Preferred Shares represented by such receipts shall be deposited by the
transfer agent with the depositary agent) and the Corporation will direct
the depositary agent to comply with such requests, (ii) when appropriate,
requisition from the Corporation the amount of cash to be paid in lieu of
issuance of fractional shares in accordance with Section 14 hereof, (iii)
after receipt of such certificates or depositary receipts, cause the same
to be delivered to or upon the order of the registered holder of such Right
Certificate, registered in such name or names as may be designated by such
holder, and (iv) when appropriate, after receipt thereof, deliver such cash
to or upon the order of the registered holder of such Right Certificate. In
the event that the Corporation is obligated to issue other securities
(including Common Shares) of the Corporation pursuant to Section 11(a)
hereof, the Corporation will make all arrangements necessary so that such
other securities are available for distribution by the Rights Agent, if and
when necessary to comply with this Agreement.
In addition, in the case of an exercise of the Rights by a holder
pursuant to Section 11(a)(ii), the Rights Agent shall return such Right
Certificate to the registered holder thereof after imprinting, stamping or
otherwise indicating thereon that the rights represented by such Right
Certificate no longer include the rights provided by Section 11(a)(ii) of
the Rights Agreement and if less than all the Rights represented by such
Right Certificate were so exercised, the Rights Agent shall indicate on the
Right Certificate the number of Rights represented thereby which continue
to include the rights provided by Section 11(a)(ii).
(d) In case the registered holder of any Right Certificate
shall exercise less than all the Rights evidenced thereby, a new Right
Certificate evidencing Rights equivalent to the Rights remaining
unexercised shall be issued by the Rights Agent to the registered holder of
such Right Certificate or to his duly authorized assigns, subject to the
provisions of Section 6 and Section 14 hereof, or the Rights Agent shall
place an appropriate notation on the Right Certificate with respect to
those Rights exercised.
(e) Notwithstanding anything in this Agreement to the
contrary, from and after the first occurrence of a Section 11(a)(ii) Event,
any Rights Beneficially Owned by (i) an Acquiring Person or an Affiliate or
Associate of an Acquiring Person, (ii) a transferee of an Acquiring Person
(or of any Affiliate or Associate thereof) who becomes a transferee after
the Acquiring Person becomes such, or (iii) a transferee of an Acquiring
Person (or of any Affiliate or Associate thereof) who becomes a transferee
prior to or concurrently with the Acquiring Person becoming such and
receives such Rights pursuant to either (A) a transfer (whether or not for
consideration) from the Acquiring Person to holders of equity interests in
such Acquiring Person or to any Person with whom the Acquiring Person has a
continuing agreement, arrangement or understanding regarding the
transferred Rights or (B) a transfer which the Board of Directors of the
Corporation has determined is part of an agreement, arrangement or
understanding which has as a primary purpose or effect the avoidance of
this Section 7(e), shall become null and void without any further action
and no holder of such Rights shall have any rights whatsoever with respect
to such Rights, whether under any provision of this Agreement or otherwise.
The Corporation shall provide the Rights Agent with prompt written notice
when this Section 7(e) applies and shall use all reasonable efforts to
insure that the provisions of this Section 7(e) and Section 4(b) hereof are
complied with, but neither the Corporation nor the Rights Agent shall have
any liability to any holder of Right Certificates or other Person as a
result of the Corporation's failure to make any determinations with respect
to an Acquiring Person or its Affiliates, Associates or transferees
hereunder. The Corporation shall give the Rights Agent prompt written
notice of the identity of any Acquiring Person, Affiliate, Associate or
transferee thereof, as described in this Section 7(e), and the Rights Agent
may rely on such notice in carrying out its duties under the Agreement and
shall be deemed not to have any knowledge of the identity of any such
Acquiring Person, Affiliate, Associate or transferee thereof unless and
until it shall have received such notice.
(f) Notwithstanding anything in this Agreement to the
contrary, neither the Rights Agent nor the Corporation shall be obligated
to undertake any action with respect to a registered holder upon the
occurrence of any purported exercise as set forth in this Section 7 unless
such registered holder shall have (i) properly completed and signed the
certificate contained in the form of election to purchase set forth on the
reverse side of the Right 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, and
of the Rights evidenced thereby, as the Corporation or the Rights Agent
shall reasonably request.
Section 8. Cancellation and Destruction of Right Certificates.
All Right Certificates surrendered for the purpose of exercise, transfer,
split up, combination or exchange shall, if surrendered to the Corporation
or to any of its agents, be delivered to the Rights Agent for cancellation
or in canceled form, or, if surrendered to the Rights Agent, shall be
canceled by it, and no Right Certificates shall be issued in lieu thereof
except as expressly permitted by any of the provisions of this Agreement.
The Corporation shall deliver to the Rights Agent for cancellation and
retirement, and the Agent shall so cancel and retire, any other Right
Certificate purchased or acquired by the Corporation otherwise than upon
the exercise thereof. The Rights Agent shall deliver all canceled Right
Certificates to the Corporation, or shall, at the written request of the
Corporation, destroy such canceled Right Certificates, and in such case
shall deliver a certificate of destruction thereof to the Corporation.
Section 9. Reservation and Availability of Preferred Shares. The
Corporation covenants and agrees that at all times prior to the occurrence
of a Section 11(a)(ii) Event it will cause to be reserved and kept
available out of its authorized and unissued Preferred Shares, or any
authorized and issued Preferred Shares held in its treasury, the number of
Preferred Shares that will be sufficient to permit the exercise in full of
all outstanding Rights pursuant to this Agreement, and, after the
occurrence of a Section 11(a)(ii) Event, shall, to the extent reasonably
practicable, so reserve and keep available a sufficient number of Common
Shares (and/or other securities) which may be required to permit the
exercise in full of the Rights pursuant to this Agreement.
So long as the Preferred Shares (and, after the occurrence of a
Section 11(a)(ii) Event, Common Shares or any other securities) issuable
upon the exercise of the Rights may be listed on any national securities
exchange, the Corporation shall use its best efforts to cause, from and
after such time as the Rights become exercisable, all shares reserved for
such issuance to be listed on such exchange upon official notice of
issuance upon such exercise.
The Corporation covenants and agrees that it will take all such
action as may be necessary to ensure that all Preferred Shares (or Common
Shares and/or other securities, as the case may be) delivered upon exercise
of Rights shall, at the time of delivery of the certificates for such
shares or other securities (subject to payment of the Purchase Price), be
duly and validly authorized and issued and fully paid and non-assessable
shares or securities.
The Corporation further covenants and agrees that it will pay
when due and payable any and all taxes and governmental charges which may
be payable in respect of the issuance or delivery of the Right Certificates
or of any Preferred Shares (or Common Shares and/or other securities, as
the case may be) upon the exercise of Rights. The Corporation shall not,
however, be required to pay any tax or other charge which may be payable in
respect of any transfer or delivery of Right Certificates to a Person other
than, or the issuance or delivery of certificates or depositary receipts
for the Preferred Shares (or Common Shares and/or other securities, as the
case may be) in a name other than that of, the registered holder of the
Right Certificate evidencing Rights surrendered for exercise, or to issue
or to deliver any certificates or depositary receipts for Preferred Shares
(or Common Shares and/or other securities, as the case may be) upon the
exercise of any Rights, until any such tax or other charge shall have been
paid (any such tax or other charge being payable by the holder of such
Right Certificate at the time of surrender) or until it has been
established to the Corporation's reasonable satisfaction that no such tax
or other charge is due.
The Corporation shall use its best efforts to (i) file, as soon
as practicable following the Shares Acquisition Date, a registration
statement under the Act, with respect to the securities purchasable upon
exercise of the Rights on an appropriate form, (ii) cause such registration
statement to become effective as soon as practicable after such filing, and
(iii) cause such registration statement to remain effective (with a
prospectus at all times meeting the requirements of the Act and the rules
and regulations thereunder) until the date of the expiration of the rights
provided by Section 11(a)(ii). The Corporation will also take such action
as may be appropriate under the blue sky laws of the various states.
Section 10. Preferred Shares Record Date. Each Person in whose
name any certificate for Preferred Shares (or Common Shares and/or other
securities, as the case may be) is issued upon the exercise of Rights shall
for all purposes be deemed to have become the holder of record of the
Preferred Shares (or Common Shares and/or other securities, as the case may
be) represented thereby on, and such certificate shall be dated, the date
upon which the Right Certificate evidencing such Rights was duly
surrendered and payment of the Purchase Price (and any applicable taxes and
charges) was made; provided, however, that, if the date of such surrender
and payment is a date upon which the Preferred Shares (or Common Shares
and/or other securities, as the case may be) transfer books of the
Corporation are closed, such person shall be deemed to have become the
record holder of such shares on, and such certificate shall be dated, the
next succeeding Business Day on which the Preferred Shares (or Common
Shares and/or other securities, as the case may be) transfer books of the
Corporation are open.
Section 11. Adjustment of Purchase Price, Number and Kind of
Shares or Number of Rights. The Purchase Price, the number and kind of
shares covered by each Right and the number of Rights outstanding are
subject to adjustment from time to time as provided in this Section 11.
(a) (i) In the event the Corporation shall at any time after
the date of this Agreement (A) declare a dividend on the Preferred Shares
payable in Preferred Shares, (B) subdivide the outstanding Preferred
Shares, (C) combine the outstanding Preferred Shares into a smaller number
of Preferred Shares or (D) issue any shares of its capital stock in a
reclassification of the Preferred Shares (including any such
reclassification in connection with a consolidation or merger in which the
Corporation is the continuing or surviving corporation), except as
otherwise provided in this Section 11(a) and Section 7(e) hereof, the
Purchase Price in effect at the time of the record date for such dividend
or of the effective date of such subdivision, combination or
reclassification, and the number and kind of shares of capital stock
issuable on such date, shall be proportionately adjusted so that the holder
of any Right exercised after such time shall be entitled to receive the
aggregate number and kind of shares of capital stock which, if such Right
had been exercised immediately prior to such date and at a time when the
Preferred Shares transfer books of the Corporation were open, such holder
would have owned upon such exercise and been entitled to receive by virtue
of such dividend, subdivision, combination or reclassification; provided,
however, that in no event shall the consideration to be paid upon the
exercise of one Right be less than the aggregate par value of the shares of
capital stock of the Corporation issuable upon exercise of one Right. If an
event occurs which would require an adjustment under both Section 11(a)(i)
and Section 11(a)(ii), 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) In the event any Person, alone or together with
its Affiliates and Associates, shall become an Acquiring Person, then
proper provision shall be made so that each holder of a Right (except as
provided below and in Section 7(e) hereof) shall, for a period of 60 days
after the later of the occurrence of any such event or the effective date
of an appropriate registration statement under the Act pursuant to Section
9 hereof, have a right to receive, upon exercise thereof at a price equal
to the then current Purchase Price, in accordance with the terms of this
Agreement, such number of Common Shares (or, in the discretion of the Board
of Directors, one one-thousandths of a Preferred Share) as shall equal the
result obtained by (x) multiplying the then current Purchase Price by the
then number of one one-thousandths of a Preferred Share for which a Right
was exercisable immediately prior to the first occurrence of a Section
11(a)(ii) Event, and dividing that product by (y) 50% of the then current
per share market price of the Corporation's Common Shares (determined
pursuant to Section 11(d) hereof) on the date of such first occurrence
(such number of shares being referred to as the "Adjustment Shares");
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 there shall not be sufficient
treasury shares or authorized but unissued (and unreserved) Common Shares
to permit the exercise in full of the Rights in accordance with the
foregoing subparagraph (ii) and the Rights become so exercisable (and the
Board of Directors of the Corporation has determined to make the Rights
exercisable into fractions of a Preferred Share), notwithstanding any other
provision of this Agreement, to the extent necessary and permitted by
applicable law, each Right shall thereafter represent the right to receive,
upon exercise thereof at the then current Purchase Price in accordance with
the terms of this Agreement, (x) a number of (or fractions of) Common
Shares (up to the maximum number of Common Shares which may permissibly be
issued) and (y) one one-thousandth of a Preferred Share or a number of, or
fractions of other equity securities of the Corporation (or, in the
discretion of the Board of Directors, debt) which the Board of Directors of
the Corporation has determined to have the same aggregate current market
value (determined pursuant to Section 11(d)(i) and (ii) hereof, to the
extent applicable,) as one Common Share (such number of, or fractions of,
Preferred Shares, debt, or other equity securities or debt of the
Corporation) being referred to as a "capital stock equivalent", equal in
the aggregate to the number of Adjustment Shares; provided, however, if
sufficient Common Shares and/or capital stock equivalents are unavailable,
then the Corporation shall, to the extent permitted by applicable law, take
all such action as may be necessary to authorize additional Common Shares
or capital stock equivalents for issuance upon exercise of the Rights,
including the calling of a meeting of stockholders; and provided, further,
that if the Corporation is unable to cause sufficient Common Shares and/or
capital stock equivalents to be available for issuance upon exercise in
full of the Rights, then each Right shall thereafter represent the right to
receive the Adjusted Number of Shares upon exercise at the Adjusted
Purchase Price (as such terms are hereinafter defined). As used herein, the
term "Adjusted Number of Shares" shall be equal to that number of (or
fractions of) Common Shares (and/or capital stock equivalents) equal to the
product of (x) the number of Adjustment Shares and (y) a fraction, the
numerator of which is the number of Common Shares (and/or capital stock
equivalents) available for issuance upon exercise of the Rights and the
denominator of which is the aggregate number of Adjustment Shares otherwise
issuable upon exercise in full of all Rights (assuming there were a
sufficient number of Common Shares available) (such fraction being referred
to as the "Proration Factor"). The "Adjusted Purchase Price" shall mean the
product of the Purchase Price and the Proration Factor. The Board of
Directors may, but shall not be required to, establish procedures to
allocate the right to receive Common Shares and capital stock equivalents
upon exercise of the Rights among holders of Rights.
(b) In case the Corporation shall fix a record date for the
issuance of rights (other than the Rights), options or warrants to all
holders of Preferred Shares entitling them (for a period expiring within 45
calendar days after such record date) to subscribe for or purchase
Preferred Shares (or shares having the same rights, privileges and
preferences as the Preferred Shares ("equivalent preferred shares")) or
securities convertible into Preferred Shares or equivalent preferred shares
at a price per Preferred Share or equivalent preferred share (or having a
conversion price per share, if a security convertible into Preferred Shares
or equivalent preferred shares) less than the then current per share market
price of the Preferred Shares (as determined pursuant to Section 11(d)
hereof) on such record date, the Purchase Price to be in effect after such
record date shall be determined by multiplying the Purchase Price in effect
immediately prior to such record date by a fraction, the numerator of which
shall be the number of Preferred Shares outstanding on such record date
plus the number of Preferred Shares which the aggregate offering price of
the total number of Preferred Shares and/or equivalent preferred shares so
to be offered (and/or the aggregate initial conversion price of the
convertible securities so to be offered) would purchase at such current per
share market price, and the denominator of which shall be the number of
Preferred Shares outstanding on such record date plus the number of
additional Preferred Shares and/or equivalent preferred shares to be
offered for subscription or purchase (or into which the convertible
securities so to be offered are initially convertible); provided, however,
that in no event shall the consideration to be paid upon the exercise of
one Right be less than the aggregate par value of the shares of capital
stock of the Corporation issuable upon exercise of one Right. In case such
subscription price may be paid in a consideration part or all of which
shall be in a form other than cash, the value of such consideration shall
be determined in good faith by the Board of Directors of the Corporation,
whose determination shall be described in a statement filed with the Rights
Agent and shall be binding on the Rights Agent and the holders of the
Rights. Preferred Shares owned by or held for the account of the
Corporation shall not be deemed outstanding for the purpose of any such
computation. Such adjustment shall be made successively whenever such a
record date is fixed; and in the event that such rights, options or
warrants are not so issued, the Purchase Price shall be adjusted to be the
Purchase Price which would then be in effect if such record date had not
been fixed.
(c) In case the Corporation shall fix a record date for the
making of a distribution to all holders of the Preferred Shares (including
any such distribution made in connection with a consolidation or merger in
which the Corporation is the continuing or surviving corporation) of
evidences of indebtedness or assets (other than a regular quarterly cash
dividend or a dividend payable in Preferred Shares) or subscription rights
or warrants (excluding those referred to in Section 11(b) hereof), the
Purchase Price to be in effect after such record date shall be determined
by multiplying the Purchase Price in effect immediately prior to such
record date by a fraction, the numerator of which shall be the then current
per share market price (as determined pursuant to Section 11(d) hereof) of
the Preferred Shares on such record date, less the fair market value (as
determined in good faith by the Board of Directors of the Corporation,
whose determination shall be described in a statement filed with the Rights
Agent and shall be binding on the Rights Agent and the holders of the
Rights) of the portion of the assets or evidences of indebtedness so to be
distributed or of such subscription rights or warrants applicable to one
Preferred Share and the denominator of which shall be such current per
share market price of the Preferred Shares; provided, however, that in no
event shall the consideration to be paid upon the exercise of one Right be
less than the aggregate par value of the shares of capital stock of the
Corporation to be issued upon exercise of one Right. Such adjustments shall
be made successively whenever such a record date is fixed; and in the event
that such distribution is not so made, the Purchase Price shall again be
adjusted to be the Purchase Price which would then be in effect if such
record date had not been fixed.
(d) (i) For the purpose of any computation hereunder, the
"current per share market price" of any security (a "Security" for the
purpose of this Section 11(d)(i)) on any date shall be deemed to be the
average of the daily closing prices per share of such Security for the
thirty (30) consecutive Trading Days (as such term is hereinafter defined)
immediately prior to and not including such date; provided, however, that
in the event that the current per share market price of the Security is
determined during a period following the announcement by the issuer of such
Security of (A) a dividend or distribution on such Security payable in
shares of such Security or securities convertible into such shares, or (B)
any subdivision, combination or reclassification of such Security and prior
to the expiration of thirty (30) Trading Days after and not including the
ex-dividend date for such dividend or distribution, or the record date for
such subdivision, combination or reclassification, then, and in each such
case, the current per share market price shall be appropriately adjusted to
reflect the current market price per share equivalent of such Security. The
closing price for each day shall be the last sale price, regular way, or,
in case no such sale takes place on such day, the average of the closing
bid and asked prices, regular way, in either case as reported in the
principal consolidated transaction reporting system with respect to
securities listed or admitted to trading on the New York Stock Exchange or,
if the Security is not listed or admitted to trading on the New York Stock
Exchange, as reported in the principal consolidated transaction reporting
system with respect to securities listed on the principal securities
exchange on which the Security is listed or admitted to trading or, if the
Security is not listed or admitted to trading on any national securities
exchange, the last quoted price or, if not so quoted, the average of the
high bid and low asked prices in the over-the-counter market, as reported
by the National Association of Securities Dealers, Inc. Automated
Quotations System ("NASDAQ") or such other system then in use, or, if on
any such date the Security is not quoted by any such organization, the
average of the closing bid and asked prices as furnished by a professional
market maker making a market in the Security selected by the Board of
Directors of the Corporation. If on any such date no such market maker is
making a market in the Security, the fair value of the Security on such
date as determined in good faith by the Board of Directors of the
Corporation shall be used. The term "Trading Day" shall mean a day on which
the principal national securities exchange on which the Security is listed
or admitted to trading is open for the transaction of business or, if the
Security is not listed or admitted to trading on any national securities
exchange, a Business Day.
(ii) For the purpose of any computation hereunder, the
"current per share market price" of the Preferred Shares shall be
determined in accordance with the method set forth in Section 11(d)(i). If
the Preferred Shares are not publicly traded, the "current per share market
price" of the Preferred Shares shall be conclusively deemed to be the
current per share market price of the Common Shares as determined pursuant
to Section 11(d)(i) (appropriately adjusted to reflect any stock split,
stock dividend or similar transaction occurring after the date hereof),
multiplied by one thousand (1,000). If neither the Common Shares nor the
Preferred Shares are publicly held or so listed or traded, "current per
share market price" shall mean the fair value per share as determined in
good faith by the Board of Directors of the Corporation, whose
determination shall be described in a statement filed with the Rights Agent
and shall be binding on the Rights Agent and the holders of the Rights.
(e) Anything herein to the contrary notwithstanding, no
adjustment in the Purchase Price shall be required unless such adjustment
would require an increase or decrease of at least 1% in the Purchase Price;
provided, however, that any adjustments which by reason of this Section
11(e) are not required to be made shall be carried forward and taken into
account in any subsequent adjustment. All calculations under this Section
11 shall be made to the nearest cent or to the nearest one one-thousandth
of a Preferred Share or one ten-thousandth of any other share or security
as the case may be. Notwithstanding the first sentence of this Section
11(e), any adjustment required by this Section 11 shall be made no later
than the earlier of (i) three (3) years from the date of the transaction
which mandates such adjustment or (ii) the Final Expiration Date.
(f) If as a result of an adjustment made pursuant to Section
11(a)(ii) or Section 13(a) hereof, the holder of any Right thereafter
exercised shall become entitled to receive any shares of capital stock of
the Corporation other than Preferred Shares, thereafter the number of other
shares so receivable upon exercise of any Right shall be subject to
adjustment from time to time in a manner and on terms as nearly equivalent
as practicable to the provisions with respect to the Preferred Shares
contained in Section 11(a) through (c), inclusive, and the provisions of
Sections 7, 9, 10, 13 and 14 with respect to the Preferred Shares shall
apply on like terms to any such other shares.
(g) All Rights originally issued by the Corporation
subsequent to any adjustment made to the Purchase Price hereunder shall
evidence the right to purchase, at the adjusted Purchase Price, the number
of one one-thousandths of a Preferred Share purchasable from time to time
hereunder upon exercise of the Rights, all subject to further adjustment as
provided herein.
(h) Unless the Corporation shall have exercised its election
so provided in Section 11(i) hereof, upon adjustment of the Purchase Price
as a result of the calculations made in Sections 11(b) and 11(c) hereof,
each Right outstanding immediately prior to the making of such adjustment
shall thereafter evidence the right to purchase, at the Adjusted Purchase
Price, that number of one one-thousandths of a Preferred Share calculated
to the nearest one one-thousandth of a Preferred Share) obtained by (i)
multiplying (A) the number of Preferred Shares covered by a Right
immediately prior to this adjustment of the Purchase Price by (B) the
Purchase Price in effect immediately prior to such adjustment of the
Purchase Price and (ii) dividing the product so obtained by the Purchase
Price in effect immediately after such adjustment of the Purchase Price.
(i) The Corporation may elect on or after the date of any
adjustment of the Purchase Price to adjust the number of Rights, in lieu of
any adjustment in the number of one one-thousandths of a Preferred Share
purchasable upon the exercise of a Right. Each of the Rights outstanding
after such adjustment of the number of Rights shall be exercisable for the
number of one one-thousandths of a Preferred Share for which a Right was
exercisable immediately prior to such adjustment. Each Right held of record
prior to such adjustment of the number of Rights shall become that number
of Rights (calculated to the nearest one ten-thousandth) obtained by
dividing the Purchase Price in effect immediately prior to adjustment of
the Purchase Price by the Purchase Price in effect immediately after
adjustment of the Purchase Price. The Corporation shall make a public
announcement (with prompt written notice thereof to the Rights Agent) of
its election to adjust the number of Rights, indicating the record date for
the adjustment, and, if known at the time, the amount of the adjustment to
be made, a copy of which public announcement shall promptly be delivered to
the Rights Agent. This record date may be the date on which the Purchase
Price is adjusted or any day thereafter, but, if the Right Certificates
have been issued, shall be at least ten (10) days later than the date of
the public announcement. If Right Certificates have been issued, upon each
adjustment of the number of Rights pursuant to this Section 11(i), the
Corporation shall, as promptly as practicable, cause to be distributed to
holders of record of Right Certificates on such record date Right
Certificates evidencing, subject to Section 14 hereof, the additional
Rights to which such holders shall be entitled as a result of such
adjustment, or, at the option of the Corporation, shall cause to be
distributed to such holders of record in substitution and replacement for
the Right Certificates held by such holders prior to the date of
adjustment, and upon surrender thereof, if required by the Corporation, new
Right Certificates evidencing all the Rights to which such holders shall be
entitled after such adjustment. Right Certificates so to be distributed
shall be issued, executed and countersigned in the manner provided for
herein and shall be registered in the names of the holders of record of
Right Certificates on the record date specified in the public announcement.
(j) Irrespective of any adjustment or change in the Purchase
Price or the number of one one-thousandths of a Preferred Share issuable
upon the exercise of the Rights, the Right Certificates theretofore and
thereafter issued may continue to express the Purchase Price and the number
of one one-thousandths of a Preferred Share which were expressed in the
initial Right Certificates issued hereunder.
(k) Before taking any action that would cause an adjustment
reducing the Purchase Price below the then par value, if any, of the number
of one one-thousandths of a Preferred Share, Common Shares or other
securities issuable upon exercise of the Rights, the Corporation shall take
any corporate action which may, in the opinion of its counsel, be necessary
in order that the Corporation may validly and legally issue such number of
fully paid and non-assessable one one-thousandths of a Preferred Share,
Common Shares or other securities at such adjusted Purchase Price.
(l) In any case in which this Section 11 shall require that
an adjustment in the Purchase Price be made effective as of a record date
for a specified event, the Corporation may elect to defer (with prompt
written notice thereof to the Rights Agent) until the occurrence of such
event the issuance to the holder of any Right exercised after such record
date the Preferred Shares, Common Shares or other securities of the
Corporation, if any, issuable upon such exercise over and above the
Preferred Shares, Common Shares or other securities of the Corporation, if
any, issuable upon exercise on the basis of the Purchase Price in effect
prior to such adjustment; provided, however, that the Corporation shall
deliver to such holder a due xxxx or other appropriate instrument
evidencing such holder's right to receive such additional shares or other
securities, as the case may be, upon the occurrence of the event requiring
such adjustment.
(m) Anything in this Section 11 to the contrary
notwithstanding, the Corporation shall be entitled to make such reductions
in the Purchase Price, in addition to those adjustments expressly required
by this Section 11, as and to the extent that it in its sole discretion
shall determine to be advisable in order that (i) any consolidation or
subdivision of the Preferred Shares, (ii) issuance wholly for cash of
Preferred Shares at less than the current market price, (iii) issuance
wholly for cash of Preferred Shares or securities which by their terms are
convertible into or exchangeable for Preferred Shares, (iv) stock dividends
or (v) issuance of rights, options or warrants referred to in this Section
11, hereafter made by the Corporation to holders of its Preferred Shares
shall not be taxable to such stockholders.
(n) The Corporation covenants and agrees that it shall not,
at any time after the Distribution Date, (i) consolidate with any other
Person (other than a Subsidiary of the Corporation in a transaction which
does not violate Section 11(o) hereof), (ii) merge with or into any other
Person (other than a Subsidiary of the Corporation in a transaction which
does not violate Section 11(o) hereof), or (iii) sell or transfer (or
permit any Subsidiary to sell or transfer), in one transaction, or a series
of related transactions, assets or earning power aggregating more than 50%
of the assets or earning power of the Corporation and its Subsidiaries
(taken as a whole) to any other Person or Persons (other than the
Corporation and/or any of its Subsidiaries in one or more transactions each
of which does not violate this Section 11(n)), if (x) at the time of or
immediately after such consolidation, merger, sale or transfer there are
any charter or by-law provisions or any rights, warrants or other
instruments or securities outstanding or agreements in effect or other
actions taken, which would materially diminish or otherwise eliminate the
benefits intended to be afforded by the Rights or (y) prior to,
simultaneously with or immediately after such consolidation, merger or
sale, the stockholders of the Person who constitutes, or would constitute,
the "Principal Party" for purposes of Section 13(a) hereof shall have
received a distribution of Rights previously owned by such Person or any of
its Affiliates and Associates. The Corporation shall not consummate any
such consolidation, merger, sale or transfer unless prior thereto the
Corporation and such other Person shall have executed and delivered to the
Rights Agent a supplemental agreement evidencing compliance with this
Section 11(n).
(o) The Corporation covenants and agrees that, after the
Distribution Date, it will not, except as permitted by Section 23 or
Section 27 hereof, take (or permit any Subsidiary to take) any action the
purpose of which is to, or if at the time such action is taken it is
reasonably foreseeable that the effect of such action is to, materially
diminish or otherwise eliminate the benefits intended to be afforded by the
Rights.
(p) The exercise of Rights under Section 11(a)(ii) shall
only result in the loss of rights under Section 11(a)(ii) to the extent so
exercised and shall not otherwise affect the rights represented by the
Rights under this Rights Agreement, including the rights represented by
Section 13.
Section 12. Certificate of Adjusted Purchase Price or Number of
Shares. Whenever an adjustment is made as provided in Sections 11 or 13
hereof, the Corporation shall promptly (a) prepare a certificate setting
forth such adjustment, and a brief reasonably detailed statement of the
facts and computations accounting for any such adjustment, (b) file with
the Rights Agent and with each transfer agent for the Common Shares and the
Preferred Shares a copy of such certificate and (c) mail a brief summary
thereof to each holder of a Right Certificate in accordance with Section 25
and Section 26 hereof. The Rights Agent shall be fully protected in relying
on any such certificate and on any adjustment or statement therein
contained and shall have no duty or liability with respect to and shall not
be deemed to have knowledge of such adjustment or any such event 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, on or following the Shares Acquisition Date,
directly or indirectly, (x) the Corporation shall consolidate with, or
merge with and into, any Interested Stockholder or, if in such merger or
consolidation all holders of Common Stock are not treated alike, any other
Person, (y) the Corporation shall consolidate with, or merge with, any
Interested Stockholder or, if in such merger or consolidation all holders
of Common Stock are not treated alike, any other Person, and the
Corporation shall be the continuing or surviving corporation of such
consolidation or merger (other than, in a case of any transaction described
in (x) or (y), a merger or consolidation which would result in all of the
securities generally entitled to vote in the election of directors ("voting
securities") of the Corporation outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being
converted into securities of the surviving entity) all of the voting
securities of the Corporation or such surviving entity outstanding
immediately after such merger or consolidation and the holders of such
securities not having changed as a result of such merger or consolidation),
or (z) the Corporation shall sell or otherwise transfer (or one or more of
its Subsidiaries shall sell or otherwise transfer), in one transaction or a
series of related transactions, assets or earning power aggregating more
than 50% of the assets or earning power of the Corporation and its
Subsidiaries (taken as a whole) to any Interested Stockholder or
Stockholders or, if in such transaction all holders of Common Stock are not
treated alike, any other Person (other than the Corporation or any
Subsidiary of the Corporation in one or more transactions each of which
does not violate Section 11(n) hereof), then, and in each such case (except
as provided in Section 13(d) hereof), proper provision shall be made so
that (i) each holder of a Right, except as provided in Section 7(e) hereof,
shall thereafter have the right to receive, upon the exercise thereof at a
price equal to the then current Purchase Price, in accordance with the
terms of this Agreement and in lieu of Preferred Shares, such number of
freely tradable shares of common stock of the Principal Party (as
hereinafter defined), not subject to any liens, encumbrances, rights of
first refusal or other adverse claims, as shall equal the result obtained
by (A) multiplying the then current Purchase Price by the number of one
one-thousandths of a Preferred Share for which a Right is then exercisable
(without taking into account any adjustment previously made pursuant to
Section 11(a)(ii)) and dividing that product by (B) 50% of the then current
per share market price of the Common Shares of such Principal Party
(determined pursuant to Section 11(d) hereof) on the date of consummation
of such Section 13 Event; (ii) such Principal Party shall thereafter be
liable for, and shall assume, by virtue of such Section 13 Event, all the
obligations and duties of the Corporation pursuant to this Agreement; (iii)
the term "Corporation" shall thereafter be deemed to refer to such
Principal Party, it being specifically intended that the provisions of
Section 11 hereof shall apply only to such Principal Party following the
first occurrence of a Section 13 Event; and (iv) such Principal Party shall
take such steps (including, but not limited to, the reservation of a
sufficient number of its Common Shares) in connection with the consummation
of any such transaction as may be necessary to assure that the provisions
hereof shall thereafter be applicable, as nearly as reasonably may be, in
relation to the Common Shares thereafter deliverable upon the exercise of
the Rights.
(b) "Principal Party" shall mean
(i) in the case of any transaction described in clause
(x) or (y) of the first sentence of Section 13(a), the Person that is the
issuer of any securities into which Common Shares of the Corporation are
converted in such merger or consolidation, and if no securities are so
issued, the Person that is the other party to such merger or consolidation
(including, if applicable, the Corporation if it is the surviving
corporation); and (ii) in the case of any transaction described in clause
(z) of the first sentence of Section 13(a), the Person that is the party
receiving the greatest portion of the assets or earning power transferred
pursuant to such transaction or transactions; provided, however, that in
any of the foregoing cases, (1) if the Common Shares of such Person are not
at such time and have not been continuously over the preceding twelve (12)
month period registered under Section 12 of the Exchange Act, and such
Person is a direct or indirect Subsidiary of another Person the Common
Shares of which are and have been so registered, "Principal Party" shall
refer to such other Person; (2) in case such Person is a Subsidiary,
directly or indirectly, of more than one Person, the Common Shares of two
or more of which are and have been so registered, "Principal Party" shall
refer to whichever of such Persons is the issuer of the Common Shares
having the greatest aggregate market value; and (3) in case such Person is
owned, directly or indirectly, by a joint venture formed by two or more
Persons that are not owned, directly or indirectly, by the same Person, the
rules set forth in (1) and (2) above shall apply to each of the chains of
ownership having an interest in such joint venture as if such party were a
"Subsidiary" of both or all of such joint venturers and the Principal
Parties in each such chain shall bear the obligations set forth in this
Section 13 in the same ratio as their direct or indirect interests in such
Person bear to the total of such interests.
(c) The Corporation shall not consummate any such
consolidation, merger, sale or transfer unless the Principal Party shall
have a sufficient number of its authorized shares of common stock which
have not been issued or reserved for issuance to permit the exercise in
full of the Rights in accordance with this Section 13 and unless prior
thereto the Corporation and such Principal Party shall have executed and
delivered to the Rights Agent a supplemental agreement providing for the
terms set forth in paragraphs (a) and (b) of this Section 13 and further
providing that, as soon as practicable after the date of any consolidation,
merger, sale or transfer mentioned in paragraph (a) of this Section 13, the
Principal Party at its own expense shall:
(i) prepare and file a registration statement under the
Act with respect to the Rights and the securities purchasable upon exercise
of the Rights on an appropriate form, and will use its best efforts to
cause such registration statement to (A) become effective as soon as
practicable after such filing and (B) remain effective (with a prospectus
at all times meeting the requirements of the Act) until the Final
Expiration Date;
(ii) use its best efforts to qualify or register the
Rights and the securities purchasable upon exercise of the Rights under the
blue sky laws of such jurisdictions as may be necessary or appropriate; 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 under the Exchange Act.
The provisions of this Section 13 shall similarly apply to
successive mergers or consolidations or sales or other transfers. The
rights under this Section 13 shall be in addition to the rights to exercise
Rights and adjustments under Section 11(a)(ii) and shall survive any
exercise thereof.
(d) Notwithstanding anything in this Agreement to the
contrary, Section 13 shall not be applicable to a transaction described in
subparagraphs (x) and (y) of Section 13(a) if: (i) such transaction is
consummated with a Person or Persons who acquired Common Shares pursuant to
a Permitted Offer (or a wholly owned Subsidiary of any such Person or
Persons); (ii) the price per Common Share offered in such transaction is
not less than the price per Common Share paid to all holders of Common
Shares whose shares were purchased pursuant to such Permitted Offer; and
(iii) the form of consideration offered in such transaction is the same as
the form of consideration paid pursuant to such Permitted Offer. Upon
consummation of any such transaction contemplated by this Section 13(d),
all Rights hereunder shall expire.
Section 14. Fractional Rights and Fractional Shares. (a) The
Corporation shall not be required to issue fractions of Rights or to
distribute Right Certificates which evidence fractional Rights. In lieu of
such fractional Rights, there shall be paid to the registered holders of
the Right Certificates with regard to which such fractional Rights would
otherwise be issuable, an amount in cash equal to the same fraction of the
current market value of a whole Right. For the purposes of this Section
14(a), the current market value of a whole Right shall be the closing price
of the Rights for the Trading Day immediately prior to the date on which
such fractional Rights would have been otherwise issuable. The closing
price for any day shall be the last sale price, regular way, or, in case no
such sale takes place on such day, the average of the closing bid and asked
prices, regular way, in either case as reported in the principal
consolidated transaction reporting system with respect to securities listed
or admitted to trading on the New York Stock Exchange or, if the Rights are
not listed or admitted to trading on the New York Stock Exchange, as
reported in the principal consolidated transaction reporting system with
respect to securities listed on the principal national securities exchange
on which the Rights are listed or admitted to trading or, if the Rights are
not listed or admitted to trading on any national securities exchange, the
last quoted price or, if not so quoted, the average of the high bid and low
asked prices in the over-the-counter market, as reported by NASDAQ or such
other system then in use or, if on any such date the Rights are not quoted
by any such organization, the average of the closing bid and asked prices
as furnished by a professional market maker making a market in the Rights
selected by the Board of Directors of the Corporation. If on any such date
no such market maker is making a market in the Rights, the fair value of
the Rights on such date as determined in good faith by the Board of
Directors of the Corporation (whose decision shall be described in a
statement filed with the Rights Agent) shall be used.
(b) The Corporation shall not be required to issue fractions
of Preferred Shares (other than fractions which are one one-thousandth or
integral multiples of one one-thousandth of a Preferred Share) upon
exercise of the Rights or to distribute certificates which evidence
fractional Preferred Shares (other than fractions which are one
one-thousandth or integral multiples of one one-thousandth of a Preferred
Share). Fractions of Preferred Shares in integral multiples of one
one-thousandth of a Preferred Share may, at the election of the
Corporation, be evidenced by depositary receipts, pursuant to an
appropriate agreement between the Corporation and a depositary selected by
it; provided that such agreement shall provide that the holders of such
depositary receipts shall have the rights, privileges and preferences to
which they are entitled as beneficial owners of the Preferred Shares
represented by such depositary receipts. In lieu of fractional Preferred
Shares that are not one one-thousandth or integral multiples of one
one-thousandth of a Preferred Share, the Corporation shall pay to the
registered holders of Right Certificates at the time such Rights are
exercised as herein provided an amount in cash equal to the same fraction
of the current market value of one Preferred Share. For the purposes of
this Section 14(b), the current market value of a Preferred Share shall be
the closing price of a Preferred Share (as determined pursuant to Section
11(d)(ii) hereof) for the Trading Day immediately prior to the date of such
exercise.
(c) Following the occurrence of one of the transactions or
events specified in Section 11 giving rise to the right to receive Common
Shares, capital stock equivalents (other than Preferred Shares) or other
securities upon the exercise of a Right, the Corporation shall not be
required to issue fractions of shares or units of such Common Shares,
capital stock equivalents or other securities upon exercise of the Rights
or to distribute certificates which evidence fractions of such Common
Shares, capital stock equivalents or other securities. In lieu of
fractional shares or units of such Common Shares, capital stock equivalents
or other securities, the Corporation may pay to the registered holders of
Right Certificates at the time such Rights are exercised as herein provided
an amount in cash equal to the same fraction of the current market value of
a share or unit of such Common Shares, capital stock equivalents or other
securities. For purposes of this Section 14(c), the current market value
shall be determined in the manner set forth in Section 11(d) hereof for the
Trading Day immediately prior to the date of such exercise and, if such
capital stock equivalent is not traded, each such capital stock equivalent
shall have the value of one one-thousandth of a Preferred Share.
(d) The holder of a Right by the acceptance of the Right
expressly waives his right to receive any fractional Rights or any
fractional share upon exercise of a Right (except as provided above). The
Rights Agent shall not be deemed to have knowledge of, and shall have no
duty in respect of, the issuance of fractional Rights or fractional shares
until it shall have received instructions from the Corporation concerning
the issuance of the fractional Rights or fractional shares upon which
instructions the Rights Agent may conclusively rely.
(e) Whenever a payment for fractional Rights or fractional
shares is to be made by the Rights Agent, the Corporation shall (i)
promptly prepare and deliver to the Rights Agent a certificate setting
forth in reasonable detail the facts related to such payments and the
prices and/or formulas utilized in calculating such payments, and (ii)
provide sufficient monies to the Rights Agent in the form of fully
collected funds to make such payments. The Rights Agent shall be fully
protected in relying upon such a certificate and shall have no duty with
respect to, and shall not be deemed to have knowledge of any payment for
fractional Rights or fractional shares under any Section of this Agreement
relating to the payment of fractional Rights or fractional shares unless
and until the Rights Agent shall have received such a certificate and
sufficient monies.
Section 15. Rights of Action. All rights of action in respect of
this Agreement, excepting the rights of action given to the Rights Agent
under Section 18 hereof, are vested in the respective registered holders of
the Right Certificates (and, prior to the Distribution Date, the registered
holders of the Common Shares); and any registered holder of any Right
Certificate (or, prior to the Distribution Date, of the Common Shares),
without the consent of the Rights Agent or of the holder of any other Right
Certificate (or, prior to the Distribution Date, of the Common Shares),
may, in his own behalf and for his own benefit, enforce, and may institute
and maintain any suit, action or proceeding against the Corporation to
enforce, or otherwise act in respect of, his right to exercise the Rights
evidenced by such Right Certificate (or, prior to the Distribution Date, of
the Common Shares) in the manner provided in such Right Certificate (or,
prior to the Distribution Date, of the Common Shares) and in this
Agreement. Without limiting the foregoing or any remedies available to the
holders of Rights, it is specifically acknowledged that the holders of
Rights would not have an adequate remedy at law for any breach of this
Agreement and will be entitled to specific performance of the obligations
under, and injunctive relief against actual or threatened violations of the
obligations of any Person subject to, this Agreement.
Section 16. Agreement of Right Holders. Every holder of a Right,
by accepting the same, consents and agrees with the Corporation and the
Rights Agent and with every other holder of a Right that:
(a) prior to the Distribution Date, the Rights will be
transferable only in connection with the transfer of the Common Shares;
(b) after the Distribution Date, the Right Certificates are
transferable only on the registry books of the Rights Agent if surrendered
at the office or offices of the Rights Agent designated for such purpose,
duly endorsed or accompanied by a proper instrument of transfer and with
the appropriate form fully executed;
(c) subject to Section 7(f) hereof, the Corporation and the
Rights Agent may deem and treat the Person in whose name the Right
Certificate (or, prior to the Distribution Date, the associated Common
Shares certificate) is registered as the absolute owner thereof and of the
Rights evidenced thereby (notwithstanding any notations of ownership or
writing on the Right Certificate or the associated Common Shares
certificate made by anyone other than the Corporation or the Rights Agent)
for all purposes whatsoever, and neither the Corporation nor the Rights
Agent, subject to the last sentence of Section 7(e) hereof shall be
required to be affected by any notice to the contrary; and
(d) notwithstanding anything in this Agreement to the
contrary, neither the Corporation 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 Agreement by reason of any preliminary or permanent injunction
or other order, judgment, decree or ruling (whether interlocutory or final)
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 Corporation must use its best efforts to
have any such order, decree, judgment, or ruling lifted or otherwise
overturned as soon as possible.
Section 17. Right Certificate Holder Not Deemed a Stockholder. No
holder, as such, of any Right Certificate shall be entitled to vote,
receive dividends or be deemed for any purpose the holder of the Preferred
Shares or any other securities of the Corporation which may at any time be
issuable on the exercise of the Rights represented thereby, nor shall
anything contained herein or in any Right Certificate be construed to
confer upon the holder of any Right Certificate, as such, any of the rights
of a stockholder of the Corporation or any right to vote for the election
of directors or upon any matter submitted to stockholders at any meeting
thereof, or to give or withhold consent to any corporate action, or to
receive notice of meetings or other actions affecting stockholders (except
as provided in Section 25 hereof), or to receive dividends or other
distributions or to exercise any preemptive or subscription rights, or
otherwise, until the Right or Rights evidenced by such Right Certificate
shall have been exercised in accordance with the provisions hereof.
Section 18. Concerning the Rights Agent. The Corporation 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 preparation, negotiation, execution, delivery, amendment,
administration and execution of this Agreement and the exercise and
performance of its duties hereunder. The Corporation also agrees to
indemnify the Rights Agent for, and to hold it harmless against, any loss,
liability, damage, judgment, fine, penalty, claim, demand, settlement, cost
or expense (including, without limitation, the reasonable fees and expenses
of legal counsel), incurred without gross negligence, bad faith or willful
misconduct (each as determined by a final, non-appealable order, judgment,
decree or ruling of a court of competent jurisdiction) on the part of the
Rights Agent, for any action taken, suffered or omitted by the Rights Agent
in connection with the acceptance, administration, exercise and performance
of its duties under this Agreement, including without limitation the costs
and expenses of defending against and appealing any claim of liability
arising therefrom, either directly or indirectly. The costs and expenses
incurred in enforcing this right of indemnification shall be paid by the
Corporation. The provisions of this Section 18 and Section 20 below shall
survive the termination of this Agreement, the exercise or expiration of
the Rights and the resignation or removal of the Rights Agent.
The Rights Agent shall be authorized and protected and shall
incur no liability for, or in respect of, any action taken, suffered or
omitted by it in connection with, its acceptance and administration of this
Agreement and the exercise and performance of its duties hereunder, in
reliance upon any Right Certificate or certificate for Common Shares or for
other securities of the Corporation, instrument of assignment or transfer,
power of attorney, endorsement, affidavit, letter, notice, direction,
consent, certificate, statement, or other paper or document (collectively,
"Documents") believed by it to be genuine and to be signed, executed and,
where necessary, verified or acknowledged, by the proper Person or Persons,
or otherwise upon the advice of counsel as set forth in Section 20 hereof.
The Rights Agent shall not be deemed to have knowledge of, and shall have
no duty in respect of, any such Documents, until it receives notice or
instructions in respect thereof. Anything to the contrary notwithstanding,
in no case will the Rights Agent be liable for special, indirect, punitive,
incidental or consequential loss or damage of any kind whatsoever
(including, but not limited, to lost profits), even if the Rights Agent has
been advised of the likelihood of such loss or damage.
Section 19. Merger or Consolidation or Change of Name of Rights
Agent. Any Person into which the Rights Agent or any successor Rights Agent
may be merged or with which it may be consolidated, or any Person resulting
from any merger or consolidation to which the Rights Agent or any successor
Rights Agent shall be a party, or any Person succeeding to the stock
transfer or all or substantially all of the shareholder services business
of the Rights Agent or any successor Rights Agent, shall be the successor
to the Rights Agent under this Agreement without the execution or filing of
any paper or any further act on the part of any of the parties hereto,
provided that such Person would be eligible for appointment as a successor
Rights Agent under the provisions of Section 21 hereof. In case at the time
such successor Rights Agent shall succeed to the agency created by this
Agreement, any of the Right Certificates shall have been countersigned but
not delivered, any such successor Rights Agent may adopt the
countersignature of a predecessor Rights Agent and deliver such Right
Certificates so countersigned; and in case at that time any of the Right
Certificates shall not have been countersigned, any successor Rights Agent
may countersign such Right Certificates either in the name of the
predecessor or in the name of the successor Rights Agent; and in all such
cases such Right Certificates shall have the full force provided in the
Right Certificates and in this Agreement. In case at any time the name of
the Rights Agent shall be changed and at such time any of the Right
Certificates shall have been countersigned but not delivered, the Rights
Agent may adopt the countersignature under its prior name and deliver Right
Certificates so countersigned; and in case at that time any of the Right
Certificates shall not have been countersigned, the Rights Agent may
countersign such Right Certificates either in its prior name or in its
changed name; and in all such cases such Right Certificates shall have the
full force provided in the Right Certificates and in this Agreement.
Section 20. Duties of Rights Agent. The Rights Agent undertakes
only those duties and obligations expressly imposed by this Agreement (and
no implied duties or obligations) upon the following terms and conditions,
by all of which the Corporation and the holders of Right Certificates, by
their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel (who may
be legal counsel for the Corporation or a legal counsel for the Rights
Agent), and the advice or opinion of such counsel shall be full and
complete authorization and protection to the Rights Agent and the Rights
Agent shall incur no liability for or in respect of, to any action taken,
suffered or omitted by it in good faith and in accordance with such
opinion.
(b) Whenever in the performance of its duties under this
Agreement the Rights Agent shall deem it necessary or desirable that any
fact or matter (including, without limitation, the identity of an Acquiring
Person and the determination of the current market price of any Security)
be proved or established by the Corporation prior to taking, suffering or
omitting any action hereunder, such fact or matter (unless other evidence
in respect thereof be herein specifically prescribed) may be deemed to be
conclusively proved and established by a certificate signed by any one of
the Chairman of the Board, the Chief Executive Officer, the President, any
Vice President, the Treasurer or the Secretary of the Corporation and
delivered to the Rights Agent; and such certificate shall be full
authorization and protection to the Rights Agent and the Rights Agent shall
incur no liability for or in respect of any action taken, suffered or
omitted by it under the provisions of this Agreement in reliance upon such
certificate.
(c) [The Rights Agent shall be liable hereunder to the
Corporation and any other Person only for its own gross negligence, bad
faith or willful misconduct (each as determined by a final, non-appealable
order, judgment, decree or ruling of a court of competent jurisdiction).
Any liability of the Rights Agent under this Agreement will be limited to
the amount of fees paid by the Corporation to the Rights Agent.]
(d) The Rights Agent shall not be liable for or by reason of
any liability in respect of, of the statements of fact or recitals
contained in this Agreement or in the Right Certificates (except its
countersignature on such Right Certificates) or be required to verify the
same, but all such statements and recitals are and shall be deemed to have
been made by the Corporation only.
(e) The Rights Agent shall not be under any liability or
responsibility in respect of the validity of this Agreement or the
execution and delivery hereof (except the due execution hereof by the
Rights Agent) or in respect of the validity or execution of any Right
Certificate (except its countersignature thereof); nor shall it be
responsible for any breach by the Corporation of any covenant or condition
contained in this Agreement or in any Rights Certificate; nor shall it be
responsible for any change in the exercisability of the Rights (including
the Rights becoming null and void pursuant to Section 7(e) hereof) or any
adjustment required under the provisions of Section 11 or Section 13 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
Right Certificates after receipt of the certificate described in Section 12
hereof, upon which the Rights Agent may rely); nor shall it by any act
hereunder be deemed to make any representation or warranty as to the
authorization or reservation of any Preferred Shares or Common Shares to be
issued pursuant to this Agreement or any Right Certificate or as to whether
any Preferred Shares or Common Shares will, when issued, be validly
authorized and issued, fully paid and non-assessable.
(f) The Corporation agrees that it will perform, execute,
acknowledge and deliver or cause to be performed, executed, acknowledged
and delivered all such further and other acts, instruments and assurances
as may reasonably be required by the Rights Agent for the carrying out or
performing by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to
accept instructions with respect to the performance of its duties hereunder
from any one of the Chairman of the Board, the Chief Executive Officer, the
President, any Vice President, the Treasurer or the Secretary of the
Corporation, and to apply to such officers for advice or instructions in
connection with its duties, and instructions shall be full authorization
and protection to the Rights Agent and the Rights Agent shall incur no
liability for or in respect of any action taken, suffered or omitted by it
in accordance with instructions of any such officer or for any delay in
acting while waiting for those instructions. The Rights Agent shall be
fully authorized and protected in relying upon the most recent instructions
received from any such officer. Any application by the Rights Agent for
written instructions from the Corporation may, at the option of the Rights
Agent, set forth in writing any action proposed to be taken, suffered or
omitted by the Rights Agent under this Rights Agreement and the date on or
after which such action shall be taken, suffered or such omission shall be
effective. The Rights Agent shall not be liable or responsible for any
action taken or suffered by, or omission of, the Rights Agent in accordance
with a proposal included in any such application on or after the date
specified in such application (which date shall not be less than five
Business Days after the date any officer of the Corporation actually
receives such application, unless any such officer shall have consented in
writing to an earlier date) unless, prior to taking any such action (or the
effective date in the case of an omission), the Rights Agent shall have
received written instruction from any one of the Chairman of the Board, the
Chief Executive Officer, the President, any Vice President, the Treasurer
or the Secretary of the Corporation in response to such application
specifying the action to be taken, suffered or omitted.
(h) The Rights Agent and any stockholder, affiliate,
director, officer or employee of the Rights Agent may buy, sell or deal in
any of the Rights or other securities of the Corporation or become
pecuniarily interested in any transaction in which the Corporation may be
interested, or contract with or lend money to the Corporation or otherwise
act as fully and freely as though it were not Rights Agent under this
Agreement. Nothing herein shall preclude the Rights Agent or any such
stockholder, affiliate, director, officer or employee from acting in any
other capacity for the Corporation or for any other Person or 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, omission, default, neglect or
misconduct of any such attorneys or agents or for any loss to the
Corporation or any other Person resulting from any such act, omission,
default, neglect or misconduct, absent gross negligence, bad faith or
willful misconduct (each as determined by a final, non-appealable order,
judgment, decree or ruling of a court of competent jurisdiction) in the
selection and continued employment thereof.
(j) No provision of this Agreement shall require the Rights
Agent to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder or in the
exercise of its rights if it believes that repayment of such funds or
adequate indemnification against such risk or liability is not reasonably
assured to it.
(k) If, with respect to any Rights Certificate surrendered
to the Rights Agent for exercise or transfer, the certificate attached to
the form of assignment or form of election to purchase, as the case may be,
has not been completed, the Rights Agent shall not take any further action
with respect to such requested exercise or transfer without first
consulting with the Corporation.
Section 21. Change of Rights Agent. The Rights Agent or any
successor Rights Agent may resign and be discharged from its duties under
this Agreement upon thirty (30) days' notice in writing mailed to the
Corporation and to each transfer agent of the Common Shares or Preferred
Shares by registered or certified mail, and to the holders of the Right
Certificates by first-class mail. The Corporation may remove the Rights
Agent or any successor Rights Agent upon sixty (60) days' notice in
writing, mailed to the Rights Agent or successor Rights Agent, as the case
may be, and to each transfer agent of the Common Shares or Preferred Shares
by registered or certified mail, and to holders of the Right Certificates
by first-class mail. If the Rights Agent shall resign or be removed or
shall otherwise become incapable of acting, the Corporation shall appoint a
successor to the Rights Agent. If the Corporation shall fail to make such
appointment within a period of sixty (60) days after giving notice of such
removal or after it has been notified in writing of such resignation or
incapacity by the resigning or incapacitated Rights Agent or by the holder
of a Right Certificate (who shall, with such notice, submit his Right
Certificate for inspection by the Corporation), then the registered holder
of any Right Certificate may apply to any court of competent jurisdiction
for the appointment of a new Rights Agent. Any successor Rights Agent,
whether appointed by the Corporation or by such a court, shall be (a) a
Person organized and doing business under the laws of the United States or
of the States of Delaware or New York (or of any other state of the United
States so long as such Person is authorized to do business in the States of
Delaware or New York), in good standing, having an office in the States of
Delaware or New York, which is subject to supervision or examination by
federal or state authority and which has at the time of its appointment as
Rights Agent a combined capital and surplus of at least $50,000,000 or (b)
an Affiliate of a Person described in clause (a) whose obligations are fully
guaranteed by the Person described in clause (a). 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 Corporation shall file notice thereof in writing
with the predecessor Rights Agent and each transfer agent of the Common
Shares or Preferred Shares, and mail a notice thereof in writing to the
registered holders of the Right Certificates. Failure to give any notice
provided for in this Section 21, however, or any defect therein, shall not
affect the legality or validity of the resignation or removal of the Rights
Agent or the appointment of the successor Rights Agent, as the case may be.
Section 22. Issuance of New Right Certificates. Notwithstanding
any of the provisions of this Agreement or of the Rights to the contrary,
the Corporation may, at its option, issue new Right Certificates evidencing
Rights in such form as may be approved by its Board of Directors to reflect
any adjustment or change in the Purchase Price and the number or kind or
class of shares or other securities or property purchasable under the Right
Certificates made in accordance with the provisions of this Agreement.
In addition, in connection with the issuance or sale of Common
Shares following the Distribution Date and prior to the earlier of the
Redemption Date and the Final Expiration Date, the Corporation (a) shall
with respect to Common Shares so issued or sold pursuant to the exercise of
stock options or under any employee plan or arrangement, or upon the
exercise, conversion or exchange of securities, notes or debentures issued
by the Corporation, and (b) may, in any other case, if deemed necessary or
appropriate by the Board of Directors of the Corporation, issue Right
Certificates representing the appropriate number of Rights in connection
with such issuance or sale; provided, however, that (i) the Corporation
shall not be obligated to issue any such Right Certificates if, and to the
extent that, the Corporation shall be advised by counsel that such issuance
would create a significant risk of material adverse tax consequences to the
Corporation or the Person to whom such Right Certificate would be issued,
and (ii) no Right Certificate shall be issued if, and to the extent that,
appropriate adjustment shall otherwise have been made in lieu of the
issuance thereof.
Section 23. Redemption and Termination.
(a) (i) The Board of Directors of the Corporation may, at
its option, redeem all but not less than all of the then outstanding Rights
at a redemption price of $.01 per Right, as such amount may be
appropriately adjusted to reflect any stock split, stock dividend or
similar transaction occurring after the date hereof (such redemption price
being hereinafter referred to as the "Redemption Price"), at any time prior
to the earlier of (x) the occurrence of a Section 11(a)(ii) Event, or (y)
the Final Expiration Date.
(ii) In addition, the Board of Directors of the
Corporation may, at its option, at any time following the occurrence of a
Section 11(a)(ii) Event and the expiration of any period during which the
holder of Rights may exercise the rights under Section 11(a)(ii) but prior
to any Section 13 Event redeem all but not less than all of the then
outstanding Rights at the Redemption Price (x) in connection with any
merger, consolidation or sale or other transfer (in one transaction or in a
series of related transactions) of assets or earning power aggregating 50%
or more of the earning power of the Corporation and its subsidiaries (taken
as a whole) in which all holders of Common Shares are treated alike and not
involving (other than as a holder of Common Shares being treated like all
other such holders) an Interested Stockholder or (y)(aa) if and for so long
as the Acquiring Person is not thereafter the Beneficial Owner of 15% of
the Common Shares, and (bb) at the time of redemption no other Persons are
Acquiring Persons.
(b) Notwithstanding anything in Section 23(a)(i) and (ii) to
the contrary, in the case the Corporation is not permitted to pay the
Redemption Price under the terms of any agreement or instrument evidencing
indebtedness for borrowed money of the Corporation or any Subsidiary,
currently in existence or executed after the date hereof, the payment of
the Redemption Price shall be deferred until such time as such payment
becomes permitted under the terms of any such agreement or instrument;
provided, however, that such deferral shall not, in any way, affect the
right and ability of the Board of Directors of the Corporation to redeem
the Rights.
(c) In the case of a redemption permitted under Section
23(a)(i), immediately upon the date for redemption set forth (or determined
in the manner specified) in a resolution of the Board of Directors of the
Corporation ordering the redemption of the Rights, and without any further
action and without any notice, the right to exercise the Rights will
terminate and the only right thereafter of the holders of Rights shall be,
except as provided in Section 23(b), to receive the Redemption Price for
each Right so held. In the case of a redemption permitted only under
Section 23(a)(ii), the right to exercise the Rights will terminate and
represent only, except as provided in Section 23(b), the right to receive
the Redemption Price upon the later of ten Business Days following the
giving of such notice or the expiration of any period during which the
rights under Section 11(a)(ii) may be exercised. The Corporation shall
promptly give public notice and provide prompt written notice to the Rights
Agent of any such redemption; provided, however, that the failure to give,
or any defect in, any such notice shall not affect the legality or validity
of such redemption. Within ten (10) days after such date for redemption set
forth in a resolution of the Board of Directors ordering the redemption of
the Rights, the Corporation shall mail a notice of redemption to all the
holders of the then outstanding Rights at their last addresses as they
appear upon the registry books of the Rights Agent or, prior to the
Distribution Date, on the registry books of the transfer agent for the
Common Shares. Any notice which is mailed in the manner herein provided
shall be deemed given, whether or not the holder receives the notice. Each
such notice of redemption will state the method by which the payment of the
Redemption Price will be made. Neither the Corporation nor any of its
Affiliates or Associates may redeem, acquire or purchase for value any
Rights at any time in any manner other than that specifically set forth in
this Section 23 and other than in connection with the purchase of Common
Shares prior to the Distribution Date.
(d) The Corporation may, at its option, discharge all of its
obligations with respect to the Rights by (i) issuing a press release (with
prompt written notice thereof to the Rights Agent) announcing the manner of
redemption of the Rights in accordance with this Agreement and (ii) mailing
payment of the Redemption Price to the registered holders of the Rights at
their last addresses as they appear on the registry books of the Rights
Agent or, prior to the Distribution Date, on the registry books of the
Transfer Agent of the Common Shares, and upon such action, all outstanding
Rights and Right Certificates shall be null and void without any further
action by the Corporation.
Section 24. Exchange. (a) The Board of Directors of the
Corporation may, at its option, at any time after the time that 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
null and void pursuant to the provisions of Section 7(e) and Section
11(a)(ii) hereof) for Common Shares of the Corporation at an exchange ratio
of one Common 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 of the
Corporation shall not be empowered to effect such exchange at any time
after any Person (other than the Corporation, any Subsidiary of the
Corporation, any employee benefit plan of the Corporation or any such
Subsidiary, any Person organized, appointed or established by the
Corporation for or pursuant to the terms of any such plan or any trustee,
administrator or fiduciary of such a plan), together with all Affiliates
and Associates of such Person, becomes the Beneficial Owner of 50% or more
of the Common Shares then outstanding.
(b) Immediately upon the action of the Board of Directors of
the Corporation ordering the exchange of any Rights pursuant to subsection
(a) of this Section 24 and without any further action and without any
notice, the right to exercise such Rights shall terminate and the only
right thereafter of the holders of such Rights shall be to receive that
number of Common Shares equal to the number of such Rights held by such
holder multiplied by the Exchange Ratio. The Corporation shall promptly
give public notice of any such exchange (with prompt written notice thereof
to) the Rights Agent; provided, however, that the failure to give, or any
defect in, such notice shall not affect the legality or validity of such
exchange. The Corporation promptly shall mail a notice of any such exchange
to all of the holders of such Rights at their last addresses as they appear
upon the registry books of the Rights Agent. Any notice which is mailed in
the manner herein provided shall be deemed given, whether or not the holder
receives the notice. Each such notice of exchange will state the method by
which the exchange of the Common Shares for Rights will be effected and, in
the event of any partial exchange, the number of Rights will be exchanged.
Any partial exchange shall be effected pro rata based on the number of
Rights (other than Rights which have become null and void pursuant to the
provisions of Section 7(e) and Section 11(a)(ii) hereof) held by each
holder of Rights.
(c) In any exchange pursuant to this Section 24, the
Corporation, at its option, may substitute Preferred Shares (or equivalent
preferred shares, as such term is defined in Section 11(b) hereof) for some
or all of the Common Shares exchangeable for Rights, at the initial rate of
one one-thousandth of a Preferred Share (or equivalent preferred share) for
each Common Share, as appropriately adjusted to reflect adjustments in the
voting rights of the Preferred Shares pursuant to the terms thereof, so
that the fraction of a Preferred Share delivered in lieu of each Common
Share shall have the same voting rights as one Common Share.
(d) The Board of Directors of the Corporation shall not
authorize any exchange transaction referred to in Section 24(a) hereof
unless at the time such exchange is authorized there shall be sufficient
Common Shares or Preferred Shares issued but not outstanding, or authorized
but unissued, to permit the exchange of Rights as contemplated in
accordance with this Section 24.
Section 25. Notice of Certain Events. (a) In case the Corporation
shall propose (i) to pay any dividend payable in stock of any class to the
holders of its Preferred Shares or to make any other distribution to the
holders of its Preferred Shares (other than a regularly quarterly cash
dividend), (ii) to offer to the holders of its Preferred Shares rights or
warrants to subscribe for or to purchase any additional Preferred Shares or
shares of stock of any class or any other securities, rights or options,
(iii) to effect any reclassification of its Preferred Shares (other than a
reclassification involving only the subdivision of outstanding Preferred
Shares), (iv) to effect any consolidation or merger into or with any other
Person (other than a Subsidiary of the Corporation in a transaction which
does not violate Section 11(n) hereof), or to effect any sale or other
transfer (or to permit one or more of its Subsidiaries to effect any sale
or other transfer) in one or more transactions, of 50% or more of the
assets or earning power of the Corporation and its Subsidiaries (taken as a
whole) to any other Person or Persons (other than the Corporation and/or
any of its Subsidiaries in one or more transactions each of which does not
violate Section 11(n) hereof), or (v) to effect the liquidation,
dissolution or winding up of the Corporation, then, in each such case, the
Corporation shall give to the Rights Agent and to each holder of a Right
Certificate, in accordance with Section 26 hereof, a notice of such
proposed action and file a certificate with the Rights Agent to that
effect, which shall specify the record date for the purposes of such stock
dividend, or distribution of rights or warrants, or the date on which such
reclassification, consolidation, merger, sale, transfer, liquidation,
dissolution, or winding up is to take place and the date of participation
therein by the holders of the Preferred Shares, if any such date is to be
fixed, and such notice shall be so given in the case of any action covered
by clause (i) or (ii) above at least twenty (20) days prior to the record
date for determining holders of the Preferred Shares for purposes of such
action, and in the case of any such other action, at least twenty (20) days
prior to the date of the taking of such proposed action or the date of
participation therein by the holders of the Preferred Shares, whichever
shall be the earlier.
(b) In case of a Section 11(a)(ii) Event, then (i) the
Corporation shall as soon as practicable thereafter give to each holder of
a Right Certificate, in accordance with Section 26 hereof, a notice of the
occurrence of such event, which notice shall describe such event and the
consequences of such event to holders of Rights under Section 11(a)(ii)
hereof, and (ii) all references in the preceding paragraph (a) to Preferred
Shares shall be deemed thereafter to refer also to Common Shares and/or, if
appropriate, other securities of the Corporation.
Section 26. Notices. Notices or demands authorized by this
Agreement to be given or made by the Rights Agent or by the holder of any
Right Certificate to or on the Corporation 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), or by facsimile
transmission, as follows:
Xxxxxx Corporation
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Chief Executive Officer
Facsimile No.: 000-000-0000
Subject to the provisions of Section 21 hereof, any notice or demand
authorized by this Agreement to be given or made by the Corporation or by
the holder of any Right Certificate to or on the Rights Agent shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed (until another address is filed in writing with the Corporation),
or by facsimile transmission as follows:
Mellon Investor Services LLC
00 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxx
Facsimile No.: (000) 000-0000
with a copy to:
Mellon Investor Services LLC
00 Xxxxxxxxxx Xxxx
Xxxxxxxxxx Xxxx, Xxx Xxxxxx 00000-0000
Attention: General Counsel
Facsimile No.: (000) 000-0000
Notices or demands authorized by this Agreement to be given or made by the
Corporation or the Rights Agent to the holder of any Right Certificate or,
if prior to the Distribution Date, to the holder of certificates
representing Common Shares 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 Corporation.
Section 27. Supplements and Amendments. Except as set forth in
the penultimate sentence of this Section 27, prior to the Distribution
Date, the Corporation may and the Rights Agent shall, if the Corporation so
directs, supplement or amend any provision of this Agreement without the
approval of any holders of certificates representing Common Shares. Except
as set forth in the penultimate sentence of this Section 27, from and after
the Distribution Date, the Corporation may and the Rights Agent shall, if
the Corporation so directs, supplement or amend this Agreement without the
approval of any holders of Right Certificates in order (i) to cure any
ambiguity, (ii) to correct or supplement any provision contained herein
which may be defective or inconsistent with any other provisions herein,
(iii) to shorten or lengthen any time period hereunder or (iv) to change or
supplement the provisions hereunder in any manner which the Corporation may
deem necessary or desirable and which shall not adversely affect the
interests of the holders of Right Certificates (other than an Acquiring
Person or an Affiliate or Associate of an Acquiring Person); provided,
however, that this Agreement may not be supplemented or amended to
lengthen, pursuant to clause (iii) of this sentence, (A) a time period
relating to when the Rights may be redeemed at such time as the Rights are
not then redeemable, or (B) any other time period unless any such
lengthening is for the purpose of protecting, enhancing or clarifying the
rights of, and/or the benefits to, the holders of Rights. Upon the delivery
of a certificate from an appropriate officer of the Corporation and, if
requested by the Rights Agent, an opinion of counsel, which states that the
proposed supplement or amendment is in compliance with the terms of this
Section 27, the Rights Agent shall execute such supplement or amendment.
Notwithstanding anything contained in this Agreement to the contrary, the
Rights Agent may, but shall not be obliged to, enter into any supplement or
amendment that affects the Rights Agent's own rights, duties, obligations
or immunities under this Agreement and the Rights Agent shall not be bound
by supplements or amendments not executed by it. Prior to the Distribution
Date, the interests of the holders of Rights shall be deemed coincident
with the interests of the holders of Common Shares.
Section 28. Determination and Actions by the Board of Directors,
etc. The Board of Directors of the Corporation shall have the exclusive
power and authority to administer this Agreement and to exercise all rights
and powers specifically granted to the Board of Directors of the
Corporation, or the Corporation, or as may be necessary or advisable in the
administration of this Agreement, including, without limitation, the right
and power to (i) interpret the provisions of this Agreement, and (ii) make
all determinations deemed necessary or advisable for the administration of
this Agreement (including, without limitation, a determination to redeem or
not redeem the Rights or to amend the Agreement and whether any proposed
amendment adversely affects the interests of the holders of Right
Certificates). For all purposes of this Agreement, any calculation of the
number of Common Shares or other securities outstanding at any particular
time, including for purposes of determining the particular percentage of
such outstanding Common Shares or any other securities of which any Person
is the Beneficial Owner, shall be made in accordance with the last sentence
of Rule 13d-3(d)(1)(i) of the General Rules and Regulations under the
Exchange Act as in effect on the date of this Agreement. All such actions,
calculations, interpretations and determinations (including, for purposes
of clause (y) below, all omissions with respect to the foregoing) which are
done or made by the Board of Directors of the Corporation in good faith
(and the Rights Agent shall be able to assume that the Board of Directors
of the Corporation acted in such good faith), shall (x) be final,
conclusive and binding on the Corporation, the Rights Agent, the holders of
the Right Certificates and all other Persons, and (y) not subject the Board
of Directors of the Corporation to any liability to the holders of the
Right Certificates. The Rights Agent is entitled always to assume the
Corporation's Board of Directors acted in good faith and shall be fully
protected and incur no liability in reliance thereon.
Section 29. Successors. All the covenants and provisions of this
Agreement by or for the benefit of the Corporation or the Rights Agent
shall bind and inure to the benefit of their respective successors and
assigns hereunder.
Section 30. Benefits of this Agreement. Nothing in this Agreement
shall be construed to give to any person or corporation other than the
Corporation, the Rights Agent and the registered holders of the Right
Certificates (and, prior to the Distribution Date, the Common Shares) any
legal or equitable right, remedy or claim under this Agreement; but this
Agreement shall be for the sole and exclusive benefit of the Corporation,
the Rights Agent and the registered holders of the Right Certificates (and,
prior to the Distribution Date, the Common Shares).
Section 31. Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction
or other authority to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions of this Agreement shall
remain in full force and effect and shall in no way be affected, impaired
or invalidated.
Section 32. Governing Law. This Agreement, each Right and each
Right Certificate issued hereunder shall be deemed to be a contract made
under the laws of the State of Delaware and for all purposes shall be
governed by and construed in accordance with the laws of such State
applicable to contracts to be made and performed entirely within such
State; except that all provisions regarding the rights, duties, obligations
and immunities of the Rights Agent shall be governed by and construed in
accordance with the laws of the State of New York applicable to contracts
made and to be performed entirely within such State.
Section 33. Counterparts. This Agreement may be executed in any
number of counterparts and each of such counterparts shall for all purposes
be deemed to be an original, and all such counterparts shall together
constitute but one and the same instrument.
Section 34. Descriptive Headings. Descriptive headings of the
several Sections of this Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the
provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and attested, all as of the date and year first above
written.
Xxxxxx Corporation
Attest:
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/Xxxxxxxx X. Xxxxx
------------------------ --------------------
Name: Xxxxxxx X. Xxxxxxx Name: Xxxxxxxx X. Xxxxx
Title: Assistant Secretary Title: Chief Operating Officer and Chief
Financial Officer
Mellon Investor Services LLC
Attest:
By: /s/ Xxxxxx X. Xxxx By: /s/ Xxxx X. Xxxxx, Xx.
------------------------ --------------------
Name: Xxxxxx X. Xxxx Name: Xxxx X. Xxxxx, Xx.
Title: Client Service Manager Title: Vice President
-----------------------------
XXXXXX CORPORATION
and
MELLON INVESTOR SERVICES LLC
Rights Agent
=============================
Rights Agreement
=============================
Dated as of May 17, 2002
-----------------------------
TABLE OF CONTENTS
Page
Section 1. Certain Definitions..................................................................................1
Section 2. Appointment of Rights Agent..........................................................................5
Section 3. Issuance of Right Certificates.......................................................................5
Section 4. Form of Right Certificate............................................................................7
Section 5. Countersignature and Registration....................................................................8
Section 6. Transfer, Split-Up, Combination and Exchange of Right Certificates; Mutilated, Destroyed,
Lost or Stolen Right Certificate.....................................................................9
Section 7. Exercise of Rights; Purchase Price; Expiration Date of Rights.......................................10
Section 8. Cancellation and Destruction of Right Certificates..................................................13
Section 9. Reservation and Availability of Preferred Shares....................................................13
Section 10. Preferred Shares Record Date........................................................................14
Section 11. Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights.........................15
Section 12. Certificate of Adjusted Purchase Price or Number of Shares..........................................23
Section 13. Consolidation, Merger or Sale or Transfer of Assets or Earning Power................................23
Section 14. Fractional Rights and Fractional Shares.............................................................26
Section 15. Rights of Action....................................................................................28
Section 16. Agreement of Right Holders..........................................................................28
Section 17. Right Certificate Holder Not Deemed a Stockholder...................................................29
Section 18. Concerning the Rights Agent.........................................................................30
Section 19. Merger or Consolidation or Change of Name of Rights Agent...........................................31
Section 20. Duties of Rights Agent..............................................................................31
Section 21. Change of Rights Agent..............................................................................34
Section 22. Issuance of New Right Certificates..................................................................35
Section 23. Redemption and Termination..........................................................................35
Section 24. Exchange............................................................................................37
Section 25. Notice of Certain Events............................................................................38
Section 26. Notices.............................................................................................39
Section 27. Supplements and Amendments..........................................................................40
Section 28. Determination and Actions by the Board of Directors, etc............................................41
Section 29. Successors..........................................................................................41
Section 30. Benefits of this Agreement..........................................................................42
Section 31. Severability........................................................................................42
Section 32. Governing Law.......................................................................................42
Section 33. Counterparts........................................................................................42
Section 34. Descriptive Headings................................................................................42
Signatures.......................................................................................................40
Exhibit A - Certificate of Designation, Preferences and Rights of Series
A Junior Participating Preferred Stock of Xxxxxx Corporation
Exhibit B - Form of Right Certificate
Exhibit C - Summary of Rights to Purchase Preferred Shares
Defined Term Cross Reference Sheet
----------------------------------
TERM LOCATION
---- --------
Acquiring Person................................. Section 1(a)
Act.............................................. Section 1(b)
Adjustment Shares................................ Section 11(a)(ii)
Adjusted Number of Shares........................ Section 11(a)(iii)
Adjusted Purchase Price.......................... Section 11(a)(iii)
Affiliate........................................ Section 1(c)
Agreement........................................ Preface
Associate........................................ Section 1(c)
Beneficial Owner................................. Section 1(d)
Beneficially Own................................. Section 1(d)
Business Day..................................... Section 1(e)
Capital Stock Equivalent......................... Section 11(a)(iii)
Close of Business................................ Section 1(f)
Common Shares.................................... Section 1(g)
Corporation...................................... Preface
Current Per Share Market Price................... Section 11(d)(i)
Distribution Date................................ Section 3(a)
Documents........................................ Section 18
Equivalent Preferred Shares...................... Section 11(b)
Exchange Act..................................... Section 1(c)
Exchange Ratio................................... Section 24(a)
Final Expiration Date............................ Section 7(a)
Grandfathered Stockholder........................ Section 1(j)
Interested Stockholder........................... Section 1(k)
NASDAQ........................................... Section 11(d)(i)
Permitted Offer.................................. Section 1(l)
Person........................................... Section 1(m)
Preferred Shares................................. Section 1(n)
Principal Party.................................. Section 13(b)
Proration Factor................................. Section 11(a)(iii)
Purchase Price................................... Section 4(a)
Record Date...................................... Preface
Redemption Date.................................. Section 7(a)
Redemption Price................................. Section 23(a)(i)
Right............................................ Preface
Right Certificate................................ Section 3(a)
Rights Agent..................................... Preface
Rights Agreement................................. Section 3(c)
Section 11(a)(ii) Event.......................... Section 11(a)(ii)
Section 13 Event................................. Section 13(a)
Security......................................... Section 11(d)(i)
Shares Acquisition Date.......................... Section 1(r)
Subsidiary....................................... Section 1(s)
Summary of Rights................................ Section 3(b)
Then Outstanding................................. Section 1(d)(iii)
Trading Day...................................... Section 11(d)(i)
Triggering Event................................. Section 1(t)
Voting Securities................................ Section 13(a)
Exhibit A
---------
XXXXXX CORPORATION
CERTIFICATE OF DESIGNATION, PREFERENCES
AND RIGHTS OF SERIES A JUNIOR PARTICIPATING
PREFERRED STOCK
(Pursuant to Section 151
of the General Corporation Law of the State of Delaware)
We, Xxxxxxxx X. Xxxxx, Chief Operating Officer and Chief
Financial Officer, and Xxxxxxx X. Xxxxxxx, Assistant Secretary of Xxxxxx
Corporation, a corporation organized and existing under the General
Corporation Law of the State of Delaware (the "Corporation"), in accordance
with the provisions of Section 103 thereof, do hereby certify;
That pursuant to the authority conferred upon the Board of
Directors by the Corporation's Amended and Restated Certificate of
Incorporation (the "Certificate of Incorporation"), the Board of Directors
adopted the following resolution on May 16, 2002 creating a series of
45,000 shares of Preferred Stock designated as Series A Junior
Participating Preferred Stock;
WHEREAS, the Certificate of Incorporation provides that the
Corporation is authorized to issue 5,000,000 shares of preferred stock,
$2.00 par value per share, designated as "Preferred Stock," none of which
are issued and outstanding, now therefore it is:
RESOLVED, that pursuant to the authority vested in the Board of
Directors of the Corporation by Article IV of the Certificate of
Incorporation, a series of Preferred Stock of the Corporation be, and it
hereby is, created out of the authorized but unissued shares of the
preferred stock of the Corporation, such series to be designated Series A
Junior Participating Preferred Stock (the "Preferred Stock"), to consist of
45,000 shares, of par value $2.00 per share, of which the preferences and
relative and other rights, and the qualifications, limitations or
restrictions thereof, shall be as follows:
1. Future Increase or Decrease. Subject to paragraph 4(e) of this
resolution, the number of shares of said series may at any time or from
time to time be increased or decreased by the Board of Directors
notwithstanding that shares of such series may be outstanding at such time
of increase or decrease.
2. Dividend Rate.
(a) The holders of shares of 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, quarterly dividends payable in
cash on the first day of each January, April, July and October in each year
(each such date being referred to herein as a "Quarterly Dividend Payment
Date"), commencing on the first Quarterly Dividend Payment Date after the
first issuance (the "First Issuance") of a share or fraction of a share of
Preferred Stock, in an amount per share (rounded to the nearest cent) equal
to the greater of (a) $10.00 or (b) 1,000 times the aggregate per share
amount of all cash dividends and 1,000 times the aggregate per share amount
(payable in kind) of all non-cash dividends or other distributions, other
than a dividend payable in shares of Common Stock or a subdivision of the
outstanding shares of Common Stock (by reclassification or otherwise),
declared on the Common Stock, of par value $1.00 per share, of the
Corporation (the "Common Stock") 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 fraction of a share
of Preferred Stock. In the event the Corporation shall at any time after
the First Issuance declare or pay any dividend on the Common Stock payable
in shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of
Common Stock) into a greater or lesser number of shares of Common Stock,
then in each such case the amount to which holders of shares of Preferred
Stock were entitled immediately prior to such event under the preceding
sentence shall be adjusted by multiplying such amount 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) On or after the First Issuance, no dividend on Common
Stock shall be declared unless concurrently therewith a dividend or
distribution is declared on the Preferred Stock as provided in paragraph
(a) above; and the declaration of any such dividend on the Common Stock
shall be expressly conditioned upon payment or declaration of and provision
for a dividend on the Preferred Stock as above provided. In the event no
dividend or distribution shall have been declared on the Common Stock
during the period between any Quarterly Dividend Payment Date and the next
subsequent Quarterly Dividend Payment Date, a dividend of $10.00 per share
on the Preferred Stock shall nevertheless be payable on such subsequent
Quarterly Dividend Payment Date.
(c) Whenever quarterly dividends or other dividends payable
on the Preferred Stock as provided in paragraph (a) above are in arrears,
thereafter and until all accrued and unpaid dividends and distributions,
whether or not declared, on shares of Preferred Stock outstanding shall
have been paid in full, the Corporation shall not redeem or purchase or
otherwise acquire for consideration shares of any stock ranking junior
(either as to dividends or upon liquidation, dissolution or winding up) to
the Preferred Stock, provided that the Corporation may at any time redeem,
purchase or otherwise acquire shares of any such junior stock in exchange
for shares of any stock of the Corporation ranking junior (as to dividends
and upon dissolution, liquidation or winding up) to the Preferred Stock.
(d) Dividends shall begin to accrue and be cumulative on
outstanding shares of Preferred Stock from the Quarterly Dividend Payment
Date next preceding the date of issue of such shares of Preferred Stock,
unless the date of issue of such shares is prior to the record date for the
first Quarterly Dividend Payment Date, in which case dividends on such
shares shall begin to accrue from the date of issue of such shares, or
unless the date of issue is a Quarterly Dividend Payment Date or is a date
after the record date for the determination of holders of shares of
Preferred Stock entitled to receive a quarterly dividend and before such
Quarterly Dividend Payment Date, in either of which events such dividends
shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall not bear interest. The
Board of Directors may fix a record date for the determination of holders
of shares of Preferred Stock entitled to receive payment of a dividend
distribution declared thereon, which record date shall be no more than 30
days prior to the date fixed for the payment thereof.
3. Dissolution, Liquidation and Winding Up. In the event of any
voluntary or involuntary dissolution, liquidation or winding up of the
affairs of the Corporation (hereinafter referred to as a "Liquidation"),
the holders of Preferred Stock shall be entitled to receive the greater of
(i) $1,000 per share, plus an amount equal to accrued and unpaid dividends
and distributions thereon, whether or not declared, to the date of such
payment and (ii) the aggregate amount per share equal to 1,000 times the
aggregate amount to be distributed per share to holders of Common Stock
(the "Preferred Liquidation Preference"). In the event the Corporation
shall at any time after the First Issuance declare or pay any dividend on
the Common Stock payable in shares of Common Stock, or effect a subdivision
or combination or consolidation of the outstanding shares of Common Stock
(by reclassification or otherwise than by payment of a dividend in shares
of Common Stock) into a greater or lesser number of shares of Common Stock,
then in each such case the aggregate amount to which holders of shares of
Preferred Stock were entitled immediately prior to such event under the
preceding sentence shall be adjusted by multiplying such amount 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.
4. Voting Rights. The holders of shares of Preferred Stock shall
have the following voting rights:
(a) Each share of Preferred Stock shall entitle the holder
thereof to one thousand (1,000) votes on all matters submitted to a vote of
the stockholders of the Corporation. In the event the Corporation shall at
any time after the First Issuance declare or pay any dividend on the Common
Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of
Common Stock) into a greater or lesser number of shares of Common Stock,
then in each such case the aggregate amount to which holders of shares of
Preferred Stock were entitled immediately prior to such event under the
preceding sentence shall be adjusted by multiplying such amount 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, or by law, the
Certificate of Incorporation or the Amended and Restated By-laws of the
Corporation (the "By-laws"), the holders of shares of 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 Corporation.
(c) If and whenever dividends on the Preferred Stock shall
be in arrears in an amount equal to six quarterly dividend payments, then
and in such event the holders of the Preferred Stock, voting separately as
a class (subject to the provisions of subparagraph (d) below), shall be
entitled at the next annual meeting of the stockholders or at any special
meeting to elect two (2) directors. Each share of Preferred Stock shall be
entitled to one vote, and holders of fractional shares shall have the right
to a fractional vote. Upon election, such directors shall become additional
directors of the Corporation and the authorized number of directors of the
Corporation shall thereupon be automatically increased by such number of
directors. Such right of the holders of Preferred Stock to elect directors
may be exercised until all dividends in default on the Preferred Stock
shall have been paid in full, and dividends for the current dividend period
declared and funds therefor set apart, and when so paid and set apart, the
right of the holders of Preferred Stock to elect such number of directors
shall cease, the term of such directors shall thereupon terminate, and the
authorized number of directors of the Corporation shall thereupon return to
the number of authorized directors otherwise in effect, but subject always
to the same provisions for the vesting of such special voting rights in the
case of any such future dividend default or defaults. The fact that
dividends have been paid and set apart as required by the preceding
sentence shall be evidenced by a certificate executed by the President and
the Chief Financial Officer of the Corporation and delivered to the Board
of Directors. The directors so elected by holders of Preferred Stock shall
serve until the certificate described in the preceding sentence shall have
been delivered to the Board of Directors or until their respective
successors shall be elected or appointed and qualify.
At any time when such special voting rights have been so vested
in the holders of the Preferred Stock, the Secretary of the Corporation
may, and upon the written request of the holders of record of 10% or more
of the number of shares of the Preferred Stock then outstanding addressed
to such Secretary at the principal office of the Corporation in the State
of New York, shall, call a special meeting of the holders of the Preferred
Stock for the election of the directors to be elected by them as
hereinabove provided, to be held in the case of such written request within
forty (40) days after delivery of such request, and in either case to be
held at the place and upon the notice provided by law and in the By-laws of
the Corporation for the holding of meetings of stockholders; provided,
however, that the Secretary shall not be required to call such a special
meeting (i) if any such request is received less than ninety (90) days
before the date fixed for the next ensuing annual or special meeting of
stockholders or (ii) if at the time any such request is received, the
holders of Preferred Stock are not entitled to elect such directors by
reason of the occurrence of an event specified in the third sentence of
subparagraph (d) below.
(d) If, at any time when the holders of Preferred Stock are
entitled to elect directors pursuant to the foregoing provisions of this
paragraph 4, the holders of any one or more additional series of Preferred
Stock are entitled to elect directors by reason of any default or event
specified in the Certificate of Incorporation, as in effect at the time of
the certificate of designation for such series, and if the terms for such
other additional series so permit, the voting rights of the two or more
series then entitled to vote shall be combined (with each series having a
number of votes proportional to the aggregate liquidation preference of its
outstanding shares). In such case, the holders of Preferred Stock and of
all such other series then entitled so to vote, voting as a class, shall
elect such directors. If the holders of any such other series (if
designated) have elected such directors prior to the happening of the
default or event permitting the holders of Preferred Stock to elect
directors, or prior to a written request for the holding of a special
meeting being received by the Secretary of the Corporation from the holders
of not less than 10% of the then outstanding shares of Preferred Stock,
then such directors so previously elected will be deemed to have been
elected by and on behalf of the holders of Preferred Stock as well as such
other series, without prejudice to the right of the holders of Preferred
Stock to vote for directors if such previously elected directors shall
resign, cease to serve or fail to stand for reelection while the holders of
Preferred Stock are entitled to vote. If the holders of any such other
series are entitled to elect in excess of two (2) directors, the Preferred
Stock shall not participate in the election of more than two (2) such
directors, and those directors whose terms first expire shall be deemed to
be the directors elected by the holders of Preferred Stock; provided that,
if at the expiration of such terms the holders of Preferred Stock are
entitled to vote in the election of directors pursuant to the provisions of
this paragraph 4, then the Secretary of the Corporation shall call a
meeting (which meeting may be the annual meeting or special meeting of
stockholders referred to in subparagraph (c)) of holders of Preferred Stock
for the purpose of electing replacement directors (in accordance with the
provisions of this paragraph 4) to be held on or prior to the time of
expiration of the expiring terms referred to above.
(e) Except as otherwise set forth herein or required by law,
the Certificate of Incorporation or the By-laws, holders of 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. No
consent of the holders of outstanding shares of Preferred Stock at any time
outstanding shall be required in order to permit the Board of Directors to:
(i) increase the number of authorized shares of Preferred Stock or to
decrease such number to a number not below the sum of the number of shares
of Preferred Stock then outstanding and the number of shares with respect
to which there are outstanding rights to purchase; or (ii) issue preferred
stock which is senior to the Preferred Stock, junior to the Preferred Stock
or on a parity with the Preferred Stock.
5. Consolidation, Merger, etc. In case the Corporation 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 share of Preferred Stock shall at the same time be similarly exchanged
or changed into an amount per share, subject to the provision for
adjustment hereinafter set forth, equal to 1,000 times the aggregate amount
of stock, securities, cash and/or any other property (payable in kind), as
the case may be, into which or for which each share of Common Stock is
changed or exchanged. In the event the Corporation shall at any time after
the First Issuance declare or pay any dividend on the Common Stock payable
in shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of
Common Stock) into a greater or lesser number of shares of Common Stock,
then in each such case the amount set forth in the preceding sentence with
respect to the exchange or change of shares of Preferred Stock shall be
adjusted by multiplying such amount 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.
6. Redemption. The shares of Preferred Stock shall not be
redeemable.
7. Conversion Rights. The Preferred Stock is not convertible into
Common Stock or any other security of the Corporation.
IN WITNESS WHEREOF, the undersigned Chief Operating Officer and
Chief Financial Officer of the Corporation, and Assistant Secretary, each
declares under penalty or perjury the truth, to the best of his or her
knowledge, of this Certificate of Designation, Preferences and Rights of
Series A Junior Participating Preferred Stock.
Executed this 17th day of May, 2002.
By:
________________________________
Name: Xxxxxxxx X. Xxxxx
Title: Chief Operating Officer and
Chief Financial Officer
Attest:
__________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Assistant Secretary
Preferred
Exhibit B
---------
Form of Right Certificate
Certificate No. R- ______ Rights
NOT EXERCISABLE AFTER May 28, 2012, OR EARLIER IF REDEEMED BY THE
CORPORATION. THE RIGHTS ARE SUBJECT TO REDEMPTION AT $.01 PER
RIGHT ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT.
Right Certificate
Xxxxxx Corporation
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 May 16, 2002 (the "Rights Agreement"),
between Xxxxxx Corporation, a Delaware corporation (the "Corporation"), and
Mellon Investor Services LLC, a New Jersey limited liability company (the
"Rights Agent"), to purchase from the Corporation 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 time, on May 28, 2012, unless the Rights
evidenced hereby shall have been previously redeemed by the Corporation, at
the office or offices of the Rights Agent designated for such purpose, or
at the office of its successor as Rights Agent, one one-thousandth of a
fully paid non-assessable share of Series A Junior Participating Preferred
Stock, of par value $2.00 per share (the "Preferred Shares"), of the
Corporation, at a purchase price of $15.00 per one one-thousandth of
Preferred Share (the "Purchase Price"), upon presentation and surrender of
this Right Certificate with the Form of Election to Purchase duly executed
and properly completed. The number of Rights evidenced by this Right
Certificate (and the number of one one-thousandths of a Preferred Share
which may be purchased upon exercise hereof) set forth above, and the
Purchase Price set forth above, are the number and Purchase Price as of
____________ based on the Preferred Shares as constituted at such date.
Upon the occurrence of a Section 11(a)(ii) Event (as such term is
defined in the Rights Agreement), if the Rights evidenced by this Right
Certificate are Beneficially Owned by (i) an Acquiring Person or an
Affiliate or Associate of any such Acquiring Person (as such terms are
defined in the Rights Agreement), (ii) a transferee of any such Acquiring
Person, Associate or Affiliate who becomes a transferee after the Acquiring
Person becomes such, or (iii) under certain circumstances specified in the
Rights Agreement, a transferee of any such Acquiring Person, Associate or
Affiliate who becomes a transferee prior to or concurrently with the
Acquiring Person becoming such, such Rights shall become null and void and
no holder hereof shall have any right with respect to such Rights from and
after the occurrence of such Section 11(a)(ii) Event.
As provided in the Rights Agreement, the Purchase Price and the
number of one one-thousandth of a Preferred Share or other securities which
may be purchased upon the exercise of the Rights evidenced by this Right
Certificate are subject to modification and adjustment upon the happening
of certain events, including Triggering Events (as such term is defined in
the Rights Agreement).
This Right Certificate is subject to all of the terms, covenants
and restrictions of the Rights Agreement, which terms, covenants and
restrictions are hereby incorporated herein by reference and made a part
hereof and to which Rights Agreement reference is hereby made for a full
description of the rights, limitations of rights, obligations, duties and
immunities hereunder of the Rights Agent, the Corporation and the holders
of the Right Certificates, which limitations of rights include the
temporary suspension of the exercisability of such Rights under the
specific circumstances set forth in the Rights Agreement. Copies of the
Rights Agreement are on file at the principal executive offices of the
Corporation and the office or offices of the Rights Agent.
This Right Certificate, with or without other Right Certificates,
upon surrender at the principal office of the Rights Agent, may be
exchanged for another Right Certificate or Right Certificates of like tenor
and date evidencing Rights entitling the holder to purchase a like
aggregate number of Preferred Shares or other securities as the Rights
evidenced by the Right Certificate or Right Certificates surrendered shall
have entitled such holder to purchase. If this Right Certificate shall be
exercised in part, the holder shall be entitled to receive upon surrender
hereof another Right Certificate or Right Certificates for the number of
whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights
evidenced by this Certificate may be redeemed by the Corporation at a
redemption price of $.01 per Right (subject to adjustment as provided in
the Rights Agreement) payable in cash.
No fractional Preferred Shares will be issued upon the exercise
of any Right or Rights evidenced hereby (other than fractions which are one
one-thousandth or integral multiples of one one-thousandth of a Preferred
Share, which may, at the election of the Corporation, be evidenced by
depositary receipts), but in lieu thereof a cash payment will be made, as
provided in the Rights Agreement.
No holder of this Right Certificate shall be entitled to vote or
receive dividends or be deemed for any purpose the holder of the Preferred
Shares or of any other securities of the Corporation 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 Corporation or any right
to vote for the election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold consent to any
corporate action, or to receive notice of meetings or other actions
affecting stockholders (except as provided in the Rights Agreement), or to
receive dividends or other distributions or to exercise any preemptive or
subscription rights, or otherwise, until the Right or Rights evidenced by
this Right Certificate shall have been exercised as provided in the Rights
Agreement.
This Right Certificate shall not be valid or obligatory for any
purpose until it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the
Corporation and its corporate seal. Dated:
[SEAL]
ATTEST: XXXXXX CORPORATION
By:_____________________________ By:_____________________________
Name: [ ] Name:
Title: [ ] Title:
Accounting Officer
Countersigned:
Mellon Investor Services LLC
as Rights Agent
By:_____________________________
Authorized Officer
Form of Reverse Side of Right Certificate
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Right Certificate.)
FOR VALUE RECEIVED_________________ hereby sells, assigns and
transfers unto___________________________________________________________
_________________________________________________________________________
(Please print name and address of transferee)
______________________________________________________________________ this
Right Certificate, together with all right, title and interest therein, and
does hereby irrevocably constitute and appoint _______________ Attorney, to
transfer the within Right Certificate on the books of the within-named
Corporation, with full power of substitution.
Dated: ______, ____
_________________________________
Signature
Signature Guaranteed:
---------------------------------------------------------------------------
The undersigned hereby certifies that (1) the Rights
evidenced by this Right Certificate are not being sold, assigned or
transferred by or on behalf of a Person who is or was an Acquiring Person
or an Affiliate or Associate thereof (as such terms are defined in the
Right Agreement) and (2) after due inquiry and to the best knowledge of the
undersigned, the undersigned did not acquire the Rights evidenced by this
Right Certificate from any Person who is or was an Acquiring Person or an
Affiliate or Associate thereof (as such terms are defined in the Rights
Agreement).
_________________________________
Signature
Form of Reverse Side of Right Certificate -- continued
---------------------------------------------------------------------------
FORM OF ELECTION TO PURCHASE
----------------------------
(To be executed by the registered holder
if such holder desires to exercise Rights
represented by the Right Certificate.)
To the Rights Agent:
The undersigned hereby irrevocably elects to exercise ________
Rights represented by this Right Certificate to purchase the Preferred
Shares, Common Shares or other securities issuable upon the exercise of
such Rights and requests that certificates for such Preferred Shares,
Common Shares or other securities be issued in the name of:
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
Right Certificate, a new Right Certificate for the balance remaining of
such Rights shall be registered in the name of and delivered to:
Please insert social security
or other identifying number ______________________________________________
___________________________________________________________________________
(Please print name and address)
___________________________________________________________________________
Form of Reverse Side of Right Certificate -- continued
---------------------------------------------------------------------------
Dated: ______, ____
_________________________________
Signature
Signature Guaranteed:
Form of Reverse Side of Right Certificate -- continued.
---------------------------------------------------------------------------
The undersigned hereby certifies that (1) the Rights evidenced by
this Right Certificate are not being exercised by or on behalf of a Person
who is or was an Acquiring Person or an Affiliate or Associate thereof (as
such terms are defined in the Rights Agreement) and (2) after due inquiry
and to the best knowledge of the undersigned, the undersigned did not
acquire the Rights evidenced by this Rights Certificate from any Person who
is or was an Acquiring Person or an Affiliate or Associate thereof (as such
terms are defined in the Rights Agreement).
_________________________________
Signature
---------------------------------------------------------------------------
NOTICE
The signature on the foregoing Forms of Assignment and Election
and certificates must conform to the name as written upon the face of this
Right Certificate in every particular, without alteration or enlargement or
any change whatsoever.
In the event the certification set forth above in the Form of
Assignment or the Form of Election to Purchase, as the case may be, is not
completed, the Corporation and the Rights Agent will deem the Beneficial
Owner of the Rights evidenced by this Right Certificate to be an Acquiring
Person or an Affiliate or Associate thereof (as such terms are defined in
the Rights Agreement) and such Assignment or Election to Purchase will not
be honored.
Exhibit C
---------
SUMMARY OF RIGHTS TO PURCHASE
PREFERRED SHARES
On May 16, 2002 the Board of Directors of Xxxxxx Corporation (the
"Corporation") declared a dividend distribution of one preferred share
purchase right (a "Right") for each outstanding share of Common Stock, par
value $2.00 per share (the "Common Shares"), of the Corporation. The
dividend is payable to the stockholders of record on May 28, 2002 (the
"Record Date"), and with respect to Common Shares issued thereafter until
the Distribution Date (as defined below) and, in certain circumstances,
with respect to Common Shares issued after the Distribution Date. Except as
set forth below, each Right, when it becomes exercisable, entitles the
registered holder to purchase from the Corporation one one-thousandth of a
share of Series A Junior Participating Preferred Stock, $2.00 par value per
share (the "Preferred Shares"), of the Corporation at a price of $15.00 per
one one-thousandth of a Preferred Share (the "Purchase Price"), subject to
adjustment. The description and terms of the Rights are set forth in a
Rights Agreement (the "Rights Agreement") between the Corporation and
Mellon Investor Services LLC as Rights Agent (the "Rights Agent"), dated as
of May 17, 2002.
Initially, the Rights will be attached to all certificates
representing Common Shares then outstanding, and no separate Right
Certificates will be distributed. The Rights will separate from the Common
Shares upon the earliest to occur of (i) a person or group of affiliated or
associated persons having acquired beneficial ownership of 15% or more of
the outstanding Common Shares (except pursuant to a Permitted Offer, as
hereinafter defined); or (ii) 10 days (or such later date as the Board may
determine) following the commencement of, or announcement of an intention
to make, a tender offer or exchange offer the consummation of which would
result in a person or group becoming an Acquiring Person (as hereinafter
defined) (the earliest of such dates being called the "Distribution Date").
A person or group whose acquisition of Common Shares causes a Distribution
Date pursuant to clause (i) above is an "Acquiring Person." Entities owning
15% or more of Common Shares as of the date of the Rights Agreement have
been specifically excluded from the definition of "Acquiring Person,"
provided that they will become an Acquiring Person if they individually
acquire Common Shares in excess of 1% of their current beneficial
ownership. The date that a person or group becomes an Acquiring Person is
the "Shares Acquisition Date."
The Rights Agreement provides that, until the Distribution Date,
the Rights will be transferred with and only with the Common Shares. Until
the Distribution Date (or earlier redemption or expiration of the Rights)
new Common Share certificates issued after the Record Date upon transfer or
new issuance of Common Shares will contain a notation incorporating the
Rights Agreement by reference. Until the Distribution Date (or earlier
redemption or expiration of the Rights), the surrender for transfer of any
certificates for Common Shares outstanding as of the Record Date, even
without such notation or a copy of this Summary of Rights being attached
thereto, will also constitute the transfer of the Rights associated with
the Common Shares represented by such certificate. As soon as practicable
following the Distribution Date, separate certificates evidencing the
Rights ("Right Certificates") will be mailed to holders of record of the
Common Shares as of the close of business on the Distribution Date (and to
each initial record holder of certain Common Shares issued after the
Distribution Date), and such separate Right Certificates alone will
evidence the Rights.
The Rights are not exercisable until the Distribution Date and
will expire at the close of business on May 28, 2012, unless earlier
redeemed by the Corporation as described below.
In the event that any person becomes an Acquiring Person or an
affiliate or associate thereof, (except pursuant to a tender or exchange
offer which is for all outstanding Common Shares at a price and on terms
which a majority of certain members of the Board of Directors determines to
be adequate and in the best interests of the Corporation, its stockholders
and other relevant constituencies, other than such Acquiring Person, its
affiliates and associates (a "Permitted Offer")), each holder of a Right
will thereafter have the right (the "Flip-In Right") to receive upon
exercise the number of Common Shares or of one one-thousandth of a share of
Preferred Shares (or, in certain circumstances, other securities of the
Corporation) having a value (immediately prior to such triggering event)
equal to two times the exercise price of the Right. Notwithstanding the
foregoing, following the occurrence of the event described above, all
Rights that are, or (under certain circumstances specified in the Rights
Agreement) were, beneficially owned by any Acquiring Person or any
affiliate or associate thereof will be null and void.
In the event that, at any time following the Shares Acquisition
Date, (i) the Corporation is acquired in a merger or other business
combination transaction in which the holders of all of the outstanding
Common Shares immediately prior to the consummation of the transaction are
not the holders of all of the surviving corporation's voting power, or (ii)
more than 50% of the Corporation's assets or earning power is sold or
transferred, in either case with or to an Acquiring Person or any affiliate
or associate or any other person in which such Acquiring Person, affiliate
or associate has an interest or any person acting on behalf of or in
concert with such Acquiring Person, affiliate or associate, or, if in such
transaction all holders of Common Shares are not treated alike, any other
person, then each holder of a Right (except Rights which previously have
been voided as set forth above) shall thereafter have the right (the
"Flip-Over Right") to receive, upon exercise, common shares of the
acquiring company (or in certain circumstances, its parent) having a value
equal to two times the exercise price of the Right. The holder of a Right
will continue to have the Flip-Over Right whether or not such holder
exercises or surrenders the Flip-In Right.
The Purchase Price payable, and the number of Preferred Shares,
Common Shares or other securities issuable, upon exercise of the Rights are
subject to adjustment from time to time to prevent dilution (i) in the
event of a stock dividend on, or a subdivision, combination or
reclassification of, the Preferred Shares, (ii) upon the grant to holders
of the Preferred Shares of certain rights or warrants to subscribe for or
purchase Preferred Shares at a price, or securities convertible into
Preferred Shares with a conversion price, less than the then current market
price of the Preferred Shares or (iii) upon the distribution to holders of
the Preferred Shares of evidences of indebtedness or assets (excluding
regular quarterly cash dividends) or of subscription rights or warrants
(other than those referred to above).
The number of outstanding Rights and the number of one
one-thousandths of a Preferred Share issuable upon exercise of each Right
are also subject to adjustment in the event of a stock split of the Common
Shares or a stock dividend on the Common Shares payable in Common Shares or
subdivisions, consolidations or combinations of the Common Shares
occurring, in any such case, prior to the Distribution Date.
Preferred Shares purchasable upon exercise of the Rights will not
be redeemable. Each Preferred Share will be entitled to a minimum
preferential quarterly dividend payment of $10.00 per share but, if
greater, will be entitled to an aggregate dividend per share of 1,000 times
the dividend declared per Common Share. In the event of liquidation, the
holders of the Preferred Shares will be entitled to the greater of (i) a
minimum preferential liquidation payment of $1,000 per share and (ii) an
aggregate payment per share of at least 1,000 times the aggregate payment
made per Common Share. These rights are protected by customary antidilution
provisions. In the event that the amount of accrued and unpaid dividends on
the Preferred Shares is equivalent to six full quarterly dividends or more,
the holders of the Preferred Shares shall have the right, voting as a
class, to elect two directors in addition to the directors elected by the
holders of the Common Shares until all cumulative dividends on the
Preferred Shares have been paid through the last quarterly dividend payment
date or until non-cumulative dividends have been paid regularly for at
least one year.
With certain exceptions, no adjustment in the Purchase Price will
be required until cumulative adjustments require an adjustment of at least
1% in such Purchase Price. No fractional Preferred Shares will be issued
(other than fractions which are one one-thousandth or integral multiples of
one one-thousandth of a Preferred Share, which may, at the election of the
Corporation, be evidenced by depositary receipts) and in lieu thereof, an
adjustment in cash will be made based on the market price of the Preferred
Shares on the last trading day prior to the date of exercise.
At any time prior to the earlier to occur of (i) a person
becoming an Acquiring Person or (ii) the expiration of the Rights, and
under certain other circumstances, the Corporation may redeem the Rights in
whole, but not in part, at a price of $.01 per Right (the "Redemption
Price") which redemption shall be effective upon the action of the Board of
Directors. Additionally, following the Shares Acquisition Date, the
Corporation may redeem the then outstanding Rights in whole, but not in
part, at the Redemption Price, provided that such redemption is in
connection with a merger or other business combination transaction or
series of transactions involving the Corporation in which all holders of
Common Shares are treated alike but not involving an Acquiring Person or
its affiliates or associates. The payment of the Redemption Price may be
deferred under certain circumstances as contemplated in the Rights
Agreement.
All of the provisions of the Rights Agreement may be amended by
the Board of Directors of the Corporation prior to the Distribution Date.
After the Distribution Date, the provisions of the Rights Agreement may be
amended by the Board of Directors in order to cure any ambiguity, defect or
inconsistency, to make changes which do not adversely affect the interests
of holders of Rights (excluding the interests of any Acquiring Person), or,
subject to certain limitations, to shorten or lengthen any time period
under the Rights Agreement.
Until a Right is exercised, the holder thereof, as such, will
have no rights as a stockholder of the Corporation, including, without
limitation, the right to vote or to receive dividends. While the
distribution of the Rights will not be taxable to stockholders of the
Corporation, stockholders may, depending upon the circumstances, recognize
taxable income should the Rights become exercisable or upon the occurrence
of certain events thereafter.
A copy of the Rights Agreement is being filed with the Securities
and Exchange Commission as an Exhibit to a Registration Statement on Form
8-A. A copy of the Rights Agreement is available free of charge from the
Corporation. This summary description of the Rights does not purport to be
complete and is qualified in its entirety by reference to the Rights
Agreement, which is hereby incorporated herein by reference.
