RIGHTS AGREEMENT
_____________________________
AMERCO
and
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
Rights Agent
_____________________________
Dated as of August 7, 1998
INDEX
-----
Page
----
Section 1. Certain Definitions................................1
Section 2. Appointment of Rights Agent........................5
Section 3. Issue of Right Certificates........................5
Section 4. Form of Right Certificates.........................6
Section 5. Countersignature and Registration..................7
Section 6. Transfer, Split Up, Combination and Exchange of
Right Certificates; Mutilated, Destroyed, Lost or
Stolen Right Certificates......................... 7
Section 7. Exercise of Rights; Purchase Price; Expiration
Date of Rights.................................... 8
Section 8. Cancellation and Destruction of Right
Certificates......................................10
Section 9. Reservation and Availability of Shares of
Preferred Stock...................................10
Section 10. Preferred Stock Record Date.......................10
Section 11. Adjustment of Purchase Price, Number of Shares
or Number of Rights...............................11
Section 12. Certificate of Adjusted Purchase Price or
Number of Shares..................................16
Section 13. Consolidation, Merger or Sale or Transfer of
Assets or Earning Power...........................17
Section 14. Fractional Rights and Fractional Shares...........19
Section 15. Rights of Action..................................20
Section 16. Agreement of Right Holders........................20
Section 17. Right Certificate Holder Not Deemed a
Stockholder...................................... 21
Section 18. Concerning the Rights Agent...................... 21
Section 19. Merger or Consolidation or Change of Name of
Rights Agent......................................21
Section 20. Duties of Rights Agent............................22
Section 21. Change of Rights Agent............................23
Section 22. Issuance of New Right Certificates................24
Section 23. Redemption and Termination........................25
Section 24. Exchange..........................................25
Section 25. Notice of Proposed Actions........................26
Section 26. Notices...........................................27
Section 27. Supplements and Amendments........................27
Section 28. Successors........................................28
Section 29. Benefits of This Agreement........................28
Section 30. Severability......................................28
Section 31. Governing Law.....................................28
Section 32. Counterparts......................................28
Section 33. Descriptive Headings..............................28
Exhibit A - Form of Amended and Restated Certificate of Designations
for Series C Junior Participating Preferred Stock
Exhibit B - Form of Right Certificate
Exhibit C - Summary of Preferred Stock Purchase Rights
RIGHTS AGREEMENT
----------------
This Rights Agreement, dated as of August 7, 1998
is entered into between AMERCO, a Nevada corporation (the
"Company") and CHASEMELLON SHAREHOLDER SERVICES, L.L.C., a
New Jersey limited liability company (the "Rights Agent").
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, on July 29, 1988 the Board of Directors
of the Company declared a dividend of one preferred stock
purchase right (the "1988 Rights") for each outstanding
share of Common Stock, par value $100.00 per share, to
shareholders of record as of the close of business on July
29, 1988, and the Company was a party to that certain Rights
Agreement dated as of August 2, 1988 (the "1988 Rights
Agreement") with The Valley National Bank of Arizona, as
Rights Agent, governing the 1988 Rights; and
WHEREAS, pursuant to its terms, the 1988 Rights
Agreement expired on July 29, 1998;
WHEREAS, on July 13, 1998 the Board of Directors
of the Company authorized and declared a dividend
distribution of one right (hereinafter referred to as a
"Right") for each share of Common Stock, par value $0.25 per
share, and each share of Serial Common Stock, par value
$0.25 per share, of the Company outstanding at the close of
business on August 17, 1998 (the "Record Date"), (other than
shares of such Common Stock and Serial Common Stock held in
the Company's treasury on such date) and has authorized the
issuance of one Right in respect of each share of Common
Stock and each share of Serial Common Stock of the Company
issued between the Record Date (whether originally issued or
issued from the Company's treasury) and the
Distribution Date (as such term is defined in Section 3
hereof), each Right representing the right to purchase one
one-hundredth of a share of Series C Junior Participating
Preferred Stock of the Company having the rights, powers and
preferences set forth in the form of Amended and Restated
Certificate of Designations attached as Exhibit A hereto,
upon the terms and subject to the conditions hereinafter set
forth (the "Rights"); and
WHEREAS, the Company desires to appoint the Rights
Agent to act as provided herein, and the Rights Agent is
willing to so act.
NOW, THEREFORE, in consideration of the premises
and the mutual agreements herein set forth, the parties
hereby agree as follows:
Section 1. Certain Definitions. For purposes of
-------------------
this Rights Agreement, the following terms have the meanings
indicated:
(a) "Acquiring Person" shall mean any Person (as
hereinafter defined) who or which, together with all
Affiliates (as hereinafter defined) and Associates (as
hereinafter defined) of such Person, without the Prior
Written Approval of the Company (as hereinafter defined),
shall be the Beneficial Owner (as hereinafter defined) of
securities of the Company constituting 10% or more of the
Voting Power (as hereinafter defined) of the Company 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 securities representing 10% or more of the Voting
Power of the Company, but shall not include (i) the Company,
any Subsidiary of the Company, any employee benefit plan or
compensation arrangement of the Company or any Subsidiary of
the Company, or any entity holding securities of the Company
to the extent organized, appointed or established by the
Company or any Subsidiary of the Company for or pursuant to
the terms of any such employee benefit plan or compensation
arrangement, (ii) any Person who or which, together with all
2
Affiliates and Associates of such Person, inadvertently may
become the Beneficial Owner of securities of the Company
representing 10% or more of the Voting Power of the Company
or otherwise becomes such a Beneficial Owner without a plan
or intention to acquire control of the Company, so long as
such Person, individually or together with the Affiliates
and Associates of such Person, promptly enters into, and
delivers to the Company, an irrevocable commitment promptly
to divest, and thereafter promptly divests (without
exercising or retaining any power, including voting, with
respect to such securities), sufficient securities of the
Company so that such Person, together with all Affiliates
and Associates of such Person, ceases to be the Beneficial
Owner of 10% or more of the Voting Power of the Company, or
(iii) a Grandfathered Person (as hereinafter defined).
Notwithstanding the foregoing, no Person shall become an
"Acquiring Person" as the result of an acquisition of voting
securities of the Company by the Company which, by reducing
the amount of such securities outstanding, increases the
proportionate voting power of such securities beneficially
owned by such Person to 10% or more of the Voting Power;
provided, however, that if a Person becomes the Beneficial
Owner of securities constituting 10% or more of the Voting
Power by reason of purchases by the Company and shall, after
such purchases by the Company, become the Beneficial Owner
of any additional voting securities of the Company without
the Prior Written Approval of the Company, then such Person
shall be deemed to be an Acquiring Person. Notwithstanding
any provision to the contrary in this Rights Agreement, no
amendment shall be made to the definition of "Acquiring
Person" or "Excepted Person" without
the consent of an Excepted Person if the effect of such
amendment would be to reduce the aggregate percentage
ownership of Voting Power that such Excepted Person would be
permitted to beneficially own at any time without being an
Acquiring Person hereunder.
(b) "Affiliate" and "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2 of
the General Rules and Regulations under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), as in
effect on the date hereof.
(c) 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 as determined pursuant to Rule
13d-3 of the General Rules and Regulations under the
Exchange Act, as in effect on the date hereof;
(ii) which such Person or any of such
Person's Affiliates or Associates has (A) the right to
acquire (whether such right is exercisable immediately
or only after the passage of time) pursuant to any
agreement, arrangement or understanding (other than
customary agreements with and between underwriters and
selling group members with respect to a bona fide
public offering of securities), or upon the exercise of
conversion rights, exchange rights, rights (other than
these Rights), warrants or options, or otherwise,
provided, however, that a Person shall not be deemed
the "Beneficial Owner" of 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 payment 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 any security
under this clause (B) if the agreement, arrangement or
understanding to vote such security (1) arises solely
from a revocable proxy or consent given in response to
a public proxy or consent solicitation made pursuant
to, and in accordance with, the applicable rules and
regulations under the Exchange Act and (2) is not also
then reportable by such person on Schedule 13D under
the Exchange Act (or any comparable or successor
report); or
3
(iii) which are beneficially owned,
directly or indirectly, by any other Person with which
such Person or any of such Person's Affiliates or
Associates has any agreement, arrangement or
understanding (other than customary agreements with and
between underwriters and selling group members with
respect to a bona fide public offering of securities)
for the purpose of acquiring, holding, voting (except
pursuant to a revocable proxy or consent as described
in clause (B) of subparagraph (ii) of this paragraph
(c)) or disposing of any securities of the Company.
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 Company, 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. In addition, notwithstanding anything in this
Rights Agreement to the contrary, no Person, who is
presently a party to that certain Amended and Restated
Stockholder Agreement, dated as of May 1, 1992, by and among
the Company and certain of the Company's stockholders (the
"Stockholder Agreement"), shall be deemed to beneficially
own any securities solely by virtue of being party to, or
the terms of, (i) the Stockholder Agreement, (ii) any
successor agreement to the Amended and Restated Stockholder
Agreement, or (iii) any agreement that is substantially
similar to the Amended and Restated Stockholder Agreement or
addresses issues substantially similar to the issues
addressed by the Amended and Restated Stockholder Agreement.
(d) "Board of Directors" shall mean the Board of
Directors of the Company as constituted from time to time.
(e) "Business Day" shall mean any day other than
a Saturday, Sunday, or a day on which banking institutions
in the State of Nevada 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., Reno, Nevada time, on such date; provided,
--------
however, that if such date is not a Business Day it shall
-------
mean 5:00 P.M., Reno, Nevada time, on the next succeeding
Business Day.
(g) "Common Stock" shall mean the Common Stock,
par value $0.25 per share, and Serial Common Stock, par
value $0.25 per share, of the Company, except that "Common
Stock" when used with reference to any Person other than the
Company shall mean the capital stock with the greatest
Voting Power of such Person or the equity securities or
other equity interest having power to control or direct the
management of such Person or, if such Person is a Subsidiary
(as hereinafter defined) of another Person, of the Person
which ultimately controls such first-mentioned Person and
which has issued and outstanding such capital stock, equity
securities or equity interests.
(h) "Distribution Date" shall have the meaning
set forth in Section 3 hereof.
(i) "Expiration Date" shall have the meaning set
forth in Section 7(a) hereof.
(j) "Final Expiration Date" shall have the
meaning set forth in Section 7(a) hereof.
(k) "Grandfathered Person" shall mean any Person
who, as of August 7, 1998 (the "Grandfather Date"), together
with all Affiliates and Associates of such Person, was the
Beneficial Owner of securities of the Company constituting
10% or more of the Voting Power) of the Company; provided,
--------
however, that such Person, together with such Person's
-------
Affiliates and Associates, does not increase its or their
4
percentage ownership of the Voting Power of the Company by
more than one (1) percentage point over its or their
percentage Beneficial Ownership on the Grandfather Date;
provided further that, for purposes of the one
(1) percentage calculation, any increase in percentage
ownership shall not take into account the effect of any
repurchases of Common Stock (or other of its own securities)
by the Company so long as the Grandfathered Person, together
with such Grandfathered Person's Affiliates and Associates,
does not acquire any voting securities of the Company
without the Prior Written Approval of the Company after the
repurchase of Common Stock (or other of its own securities)
by the Company. If a Person, or an Affiliate or Associate
of such Person, is the involuntary transferee of voting
securities of the Company from a Grandfathered Person
(including, but not limited to, when such involuntary
transfer is as a result of the death of a Grandfathered
Person), such Person shall then become a
Grandfathered Person.
(l) "Person" shall mean any individual, firm,
corporation, partnership or other entity, and shall include
any successor (by merger or otherwise) of any such entity.
(m) "Preferred Stock" shall mean the Series C
Junior Participating Preferred Stock, no par value, of the
Company.
(n) "Prior Written Approval of the Company" shall
mean prior express written consent of the Company to the
actions in question, executed on behalf of the Company by a
duly authorized officer of the Company following express
approval by action of at least a majority of the members of
the Board of Directors then in office.
(o) "Purchase Price" shall have the meaning set
forth in Section 4 hereof.
(p) "Redemption Price" shall have the meaning set
forth in Section 23(a) hereof.
(q) "Section 11(b) Event" shall have the meaning
set forth in Section 11(b) hereof.
(r) "Section 13 Event" shall mean an event
described in clauses (x), (y) or (z) of Section 13(a)
hereof.
(s) "Stock Acquisition Date" shall mean the
earlier of (i) the first date of public announcement by the
Company or a Person that an Acquiring Person has become an
Acquiring Person, or (ii) the date on which the Company
first has notice, direct or indirect, or otherwise
determines that a Person has become an Acquiring Person.
(t) "Subsidiary" shall mean, with respect to any
Person, any other Person of which securities or other
ownership interests having ordinary Voting Power, in the
absence of contingencies, to elect a majority of the board
of directors (or other persons performing similar functions)
of such other Person are at the time directly or indirectly
owned by such Person or one or more of such Person's
Subsidiaries, except that "Subsidiary" when used with
reference to the Company shall mean any Person of which
either a majority of the Voting Power of the voting equity
securities or a majority of the equity interests is owned,
directly or indirectly, by the Company.
(u) "Voting Power" shall mean the voting power of
all securities of a Person then outstanding generally
entitled to vote for the election of directors of the Person
(or, where appropriate, for the election of persons
performing similar functions).
5
Section 2. Appointment of Rights Agent. The
---------------------------
Company hereby appoints the Rights Agent to act as agent for
the Company in accordance with the terms and conditions hereof,
and the Rights Agent hereby accepts such appointment. The Company
may from time to time appoint such Co-Rights Agents as it
may deem necessary or desirable. In the event the Company
appoints one or more Co-Rights Agents, the respective duties
of the Rights Agents and any Co-Rights Agents shall be as the
Company shall determine.
Section 3. Issue of Right Certificates.
---------------------------
(a) Until the earlier of (i) the close of business on
the tenth Business Day after the Stock Acquisition Date or (ii)
the close of business on the tenth Business Day (or such later
date as may be determined by action of the Board of
Directors but in no event later than the tenth Business Day
after such time as any Person becomes an Acquiring Person) after
the date that a tender or exchange offer by any Person (other
than the Company, any Subsidiary of the Company, any employee
benefit plan or compensation arrangement of the Company or of
any Subsidiary of the Company, or any entity holding securities
of the Company to the extent organized, appointed or established
by the Company or any Subsidiary of the Company for or pursuant
to the terms of any such employee benefit plan or compensation
arrangement) is first published or sent or given within the
meaning of Rule 14d-2(a) of the General Rules and Regulations
under the Exchange Act, without the Prior Written Approval of
the Company, which tender or exchange offer would result in any
Person becoming the Beneficial Owner of Voting Power aggregating
10% or more of the outstanding Voting Power (including any such
date which is after the date of this Rights Agreement and prior
to the issuance of the Rights; the earlier of such dates being
herein referred to as the "Distribution Date"), (y) the Rights
will be evidenced (subject to the provisions of paragraph (b) of
this Section 3) by the certificates for the Common Stock
registered in the names of the holders of the Common Stock
(which certificates for Common Stock shall be deemed also to be
Right Certificates) and not by separate Right Certificates, as
more fully set forth below, and (z) the Rights (and the right to
receive certificates therefor) will be transferable only in
connection with the transfer of the underlying shares of Common
Stock, as more fully set forth below. As soon as practicable
after the Company has notified the Rights Agent of the
occurrence of the Distribution Date, the Company shall prepare
and execute, and the Rights Agent shall countersign and send, by
first-class, insured, postage prepaid mail, to each record
holder of the Common Stock as of the close of business on the
Distribution Date, at the address of such holder shown on the
records of the Company, a right certificate, in substantially
the form of Exhibit B hereto (the "Right Certificate"),
evidencing one Right for each share of Common Stock so held,
subject to adjustment as provided herein. As of and after the
Distribution Date, the Rights will be evidenced solely by such
Right Certificates.
(b) On the Record Date or as soon as practicable
thereafter, the Company will send a copy of a Summary of Rights
to Purchase Preferred Stock, in substantially the form of
Exhibit C hereto (the "Summary of Rights"), by first-class,
postage prepaid mail, to each record holder of the Common Stock
as of the close of business on the Record Date, at the address
of such holder shown on the records of the Company. With
respect to certificates for the Common Stock outstanding as of
the Record Date, until the Distribution Date (or the earlier
redemption, expiration or termination of the Rights), the Rights
will be evidenced by such certificates for the Common Stock
registered in the names of the holders of the Common Stock and
the registered holders of the Common Stock shall also be
registered holders of the associated Rights. Until the
Distribution Date (or the earlier redemption, expiration or
termination of the Rights), the surrender for transfer of any of
the certificates for the Common Stock outstanding in respect of
6
which Rights have been issued shall also constitute the transfer
of the Rights associated with the Common Stock represented by such
certificate.
(c) Certificates for the Common Stock issued after
the Record Date but prior to the earlier of the Distribution
Date or the redemption, expiration or termination of the Rights
shall be deemed also to be certificates for Rights and shall
have impressed, printed or written on, or otherwise affixed to
them a legend substantially to the following effect:
This certificate also evidences and entitles the
holder hereof to certain Rights as set forth in a
Rights Agreement dated as of August 7, 1998 between
AMERCO and ChaseMellon Shareholder Services, L.L.C.
(the "Rights Agreement"), as it may from time to time
be supplemented or amended, the terms of which are
incorporated herein by reference and a copy of which
is on file at the principal executive offices of
AMERCO. Under certain circumstances, as set forth in
the Rights Agreement, such Rights may expire or may be
redeemed, exchanged or be evidenced by separate
certificates and no longer be evidenced by this
certificate. AMERCO will mail to the holder of this
certificate a copy of the Rights Agreement without
charge promptly after receipt of a written request
therefor. Under certain circumstances, Rights issued
to or held by Acquiring Persons or their Affiliates or
Associates (as defined in the Rights Agreement) and
any subsequent holder of such Rights may become null
and void.
With respect to such certificates containing the foregoing
legend, until the Distribution Date (or the earlier redemption,
expiration or termination of the Rights), the Rights associated
with the Common Stock represented by such certificates shall be
evidenced by such certificates alone, and the surrender for
transfer of any of such certificates shall also constitute the
transfer of the Rights associated with the Common Stock
represented by such certificates.
In the event that the Company purchases or acquires
any Common Stock after the Record Date but prior to the
Distribution Date, any Rights associated with such Common Stock
shall be deemed canceled and retired so that the Company shall
not be entitled to exercise any Rights associated with shares of
Common Stock which are no longer outstanding.
Section 4. Form of Right Certificates.
--------------------------
(a) The Right Certificates (and the forms of election
to purchase shares and of assignment to be printed on the
reverse thereof) shall be in substantially the same form as
Exhibit B hereto and may have such marks of identification or
designation and such legends, summaries or endorsements printed
thereon as the Company may deem appropriate and as are not
inconsistent with the provisions of this Rights Agreement, or as
may be required to comply with any applicable law, rule or
regulation 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 customary usage. Subject to the provisions of Section
11 and Section 22 hereof, the Right Certificates, whenever
issued, shall be dated as of the Record Date, and on their face
shall entitle the holders thereof to purchase such number of one
one-hundredths of a share of Preferred Stock as shall be set
forth therein at the price per one one-hundredth of a share as
set forth therein (the "Purchase Price"), but the number and
identity of such shares and the Purchase Price shall be and
remain subject to adjustment as provided in Sections 11, 13 and
22 hereof.
(b) Any Right Certificate issued pursuant hereto that
represents Rights beneficially owned by (i) an Acquiring Person
or any Associate or Affiliate of an Acquiring Person, (ii) a
transferee of an Acquiring Person (or of any such Associate or
Affiliate) which becomes a transferee after the Acquiring Person
becomes such, or (iii) a transferee of an Acquiring Person (or
7
of any such Associate or Affiliate) which becomes a transferee
prior to or concurrently with the Acquiring Person becoming such
and which receives such Rights pursuant to either (A) a transfer
(whether or not for consideration) from the Acquiring Person (or
any such Associate or Affiliate) to holders of equity interests
in such Acquiring Person (or such Associate or Affiliate) or to
any Person with whom such Acquiring Person (or such Associate or
Affiliate) has any continuing agreement, arrangement or
understanding regarding either the transferred Rights, shares of
Company Common Stock or the Company or (B) a transfer which a
majority of the Board of Directors has determined to be part of
a plan, arrangement or understanding which has as a primary
purpose or effect the avoidance of Section 7(e), and any Right
Certificate issued pursuant to Section 6 hereof, Section 11
hereof or Section 22 hereof upon transfer, exchange, replacement
or adjustment of any other Right Certificate referred to in this
sentence, shall contain (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 an
Associate of an Acquiring Person. Accordingly, this
Right Certificate and the Rights represented hereby
are void in the circumstances specified in Section
7(e) of the Rights Agreement.
The failure to print the foregoing legend on any such Right
Certificate or any defect therein shall not affect in any manner
whatsoever the application or interpretation of the provisions
of Section 7(e) hereof.
Section 5. Countersignature and Registration.
---------------------------------
(a) The Right Certificates shall be executed on
behalf of the Company by its Chairman of the Board, its
President or any Vice President, either manually or by facsimile
signature, and shall have affixed thereto the Company's seal or
a facsimile thereof which shall be attested by the Secretary or
an Assistant Secretary of the Company, either manually or by
facsimile signature. The Right Certificates shall be
countersigned manually or by facsimile signature by the Rights
Agent or the registrar or co-registrar for the Common Stock (the
"Registrar") and shall not be valid for any purpose unless so
countersigned. In case any officer of the Company whose manual
or facsimile signature is affixed to the Right Certificates
shall cease to be such officer of the Company before
countersignature by the Rights Agent or the Registrar and
issuance and delivery by the Company, such Right Certificates,
nevertheless, may be countersigned by the Rights Agent or the
Registrar, issued and delivered with the same force and effect
as though the person who signed such Right Certificates had not
ceased to be such officer of the Company. Any Right Certificate
may be signed on behalf of the Company by any person who, at the
actual date of the execution of such Right Certificate, shall be
a proper officer of the Company to sign such Right Certificate,
although at the date of the execution of this Rights Agreement
any such person was not such an officer.
(b) Following the Distribution Date, the Rights Agent
will keep or cause to be kept, at its stockholder services
office or such other office designated for such purpose, books
for registration and transfer of the Right Certificates issued
hereunder. Such books shall show the names and addresses of the
respective holders of the Right Certificates, the number of
Rights evidenced on its face by each of the Right Certificates,
the certificate number of each of the Right Certificates and the
date of each of the Right Certificates.
Section 6. Transfer, Split Up, Combination and
-----------------------------------
Exchange of Right Certificates; Mutilated, Destroyed, Lost or
-------------------------------------------------------------
Stolen Right Certificates; Mutilated, Destroyed, Lost or Stolen
---------------------------------------------------------------
Right Certificates.
------------------
8
(a) Subject to the provisions of Section 14 hereof,
at any time after the close of business on the Distribution
Date, and at or prior to the close of business on the Expiration
Date (as such term is defined in Section 7(a) hereof), any Right
Certificate or Right Certificates may be transferred, split up,
combined or exchanged for another Right Certificate or Right
Certificates, entitling the registered holder to purchase a like
number of shares of Preferred Stock as the Right Certificate or
Right Certificates surrendered then entitled such holder to
purchase. Any registered holder desiring to transfer, split up,
combine or exchange any Right Certificate 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 stockholder
services office of the Rights Agent or such office designated
for such purpose. Thereupon, the Rights Agent shall countersign
and deliver to the person entitled thereto a Right Certificate
or Right Certificates, as the case may be, as so requested. The
Company may require payment of a sum sufficient to cover any tax
or governmental charge that may be imposed in connection with
any transfer, split up, combination or exchange of Right
Certificates.
(b) Upon receipt by the Company and the Rights Agent
of evidence reasonably satisfactory to them of the loss, theft,
destruction or mutilation of a Right Certificate, and, in case
of loss, theft or destruction, of indemnity or security
reasonably satisfactory to them, and reimbursement to the
Company and the Rights Agent of all reasonable expenses
incidental thereto, and upon surrender to the Rights Agent and
cancellation of the Right Certificate if mutilated, the Company
will make and deliver a new Right Certificate of like tenor to
the Rights Agent for countersignature and delivery to the
registered owner in lieu of the Right Certificate so lost,
stolen, destroyed or mutilated.
Section 7. Exercise of Rights; Purchase Price;
-----------------------------------
Expiration Date of Rights; Purchase Price; Expiration Date of
-------------------------------------------------------------
Rights.
------
(a) 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 on the reverse side thereof
duly executed, to the Rights Agent at the stockholder services
office of the Rights Agent or such office designated for such
purpose, together with payment of the Purchase Price for each
one one-hundredth of a share of Preferred Stock as to which the
Rights are exercised, at or prior to the close of business on
the Expiration Date. The "Expiration Date", as used in this
Rights Agreement, shall be the earliest of (i) the Final
Expiration Date (as defined below), (ii) the time at which the
Rights are redeemed as provided in Section 23 hereof, or (iii) the time at
which the Rights are exchanged as provided in Section 24 hereof.
The "Final Expiration Date", as used in this Rights Agreement,
shall be August 7, 2008.
(b) The Purchase Price for each one one-hundredth of
a share of Preferred Stock pursuant to the exercise of a Right
shall initially be $132.00, shall be subject to adjustment from
time to time as provided in Sections 11 and 13 hereof and shall
be payable in lawful money of the United States of America in
accordance with paragraph (c) below.
(c) Upon receipt of a Right Certificate, with the
form of election to purchase duly executed, accompanied by
payment of the Purchase Price for each one one-hundredth of a
share of Preferred Stock to be purchased and an amount equal to
any applicable transfer tax required to be paid by the holder of
the Rights pursuant hereto in accordance with Section 9 hereof
by certified check, bank draft or money order payable to the
order of the Company or the Rights Agent, the Rights Agent
shall, subject to Section 20(k) hereof, thereupon promptly (i)
either (A) requisition from any transfer agent of the shares of
Preferred Stock (or make available, if the Rights Agent is the
transfer agent) certificates for the number of shares of
Preferred Stock to be purchased and the Company hereby
irrevocably authorizes any such transfer agent to comply with
all such requests, or (B) if the Company, in its sole
discretion, shall have elected to deposit the shares of
9
Preferred Stock issuable upon exercise of the Rights hereunder
into a depositary, requisition from the depositary agent
depositary receipts representing such number of one one-
hundredths of a share of Preferred Stock as are to be purchased
(in which case certificates for the shares of Preferred Stock
represented by such receipts shall be deposited by the transfer
agent with the depositary agent) and the Company hereby directs
such depositary agent to comply with all such requests, (ii)
promptly after receipt of such certificates or depositary
receipts cause the same to be delivered to or upon the order of
the registered holder of such Right Certificate, registered in
such name or names as may be designated by such holder, (iii)
when appropriate, requisition from the Company the amount of
cash to be paid in lieu of issuance of fractional shares in
accordance with Section 14 hereof, (iv) after receipt of any
such cash, promptly deliver such cash to or upon the order of
the registered holder of such Right Certificate, (v) when
appropriate, requisition from the Company the amount of cash or
securities issuable upon exercise of a Right pursuant to the
adjustment provisions of Section 11 or the exchange provisions
of Section 24, and (vi) after receipt of any such cash or
securities, promptly deliver such cash or securities to or upon
the order of the registered holder of such Right Certificate, of
any such cash or securities.
(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
such holder's duly authorized assigns, subject to the provisions
of Section 14 hereof.
(e) Notwithstanding anything in this Rights Agreement
to the contrary, upon the first occurrence of a Section 11(b)
Event or a Section 13 Event, any Rights beneficially owned by
(i) an Acquiring Person or an Associate or Affiliate of an
Acquiring Person, (ii) a transferee of an Acquiring Person (or
of any such Associate or Affiliate) which becomes a transferee after the
Acquiring Person becomes such, or (iii) a transferee of an
Acquiring Person (or of any such Associate or Affiliate) which
becomes a transferee prior to or concurrently with the Acquiring
Person becoming such and which receives such Rights pursuant to
either (A) a transfer (whether or not for consideration) from
the Acquiring Person (or any such Associate or Affiliate) to
holders of equity interests in such Acquiring Person (or any
such Associate or Affiliate) or to any Person with whom such
Acquiring Person (or such Associate or Affiliate) has any
continuing agreement, arrangement or understanding regarding the
transferred Rights, shares of Company Common Stock or the
Company or (B) a transfer which a majority of the Board of
Directors has determined to be part of a plan, arrangement or
understanding which has as a primary purpose or effect the
avoidance of this Section 7(e), shall be null and void without
any further action, and no holder of such Rights shall have any
rights whatsoever with respect to such Rights, whether under any
provision of this Agreement or otherwise. The Company shall use
all reasonable efforts to ensure that the provisions of this
Section 7(e) and Section 4(b) are complied with, but shall have
no liability to any holder of Rights or any other Person as a
result of its failure to make any determination under this
Section 7(e) or Section 4(b) with respect to an Acquiring Person
or its Affiliates, Associates or transferees hereunder.
(f) Notwithstanding anything in this Rights Agreement
to the contrary, neither the Rights Agent nor the Company shall
be obligated to undertake any action with respect to a
registered holder upon the occurrence of any purported exercise
as set forth in this Section 7 unless the certificate contained
in the appropriate form of election to purchase set forth on the
reverse side of the Right Certificate surrendered for such
exercise shall have been properly completed and duly executed by
the registered holder thereof and the Company shall have been
provided with such additional evidence of the identity of the
Beneficial Owner (or former Beneficial Owner) or Affiliates or
Associates thereof as the Company shall reasonably request.
10
Section 8. Cancellation and Destruction of Right
-------------------------------------
Certificates. All Right Certificates surrendered for the
------------
purpose of exercise, transfer, split up, combination or exchange
shall, if surrendered to the Company or to any of its agents, be
delivered to the Rights Agent for cancellation or in canceled
form, or, if surrendered to the Rights Agent, shall be canceled
by it, and no Right Certificates shall be issued in lieu thereof
except as expressly permitted by any of the provisions of this
Rights Agreement. The Company shall deliver to the Rights Agent
for cancellation and retirement, and the Rights Agent shall so
cancel and retire, any other Right Certificate purchased or
acquired by the Company otherwise than upon the exercise
thereof. The Rights Agent shall deliver all canceled Right
Certificates to the Company, or shall, at the written request of
the Company, destroy such canceled Right Certificates, and in
such case shall deliver a certificate of destruction thereof to
the Company.
Section 9. Reservation and Availability of Shares of
-----------------------------------------
Preferred Stock.
---------------
(a) The Company covenants and agrees that it will
cause to be reserved and kept available out of its authorized
and unissued shares of Preferred Stock or its authorized and
issued shares of Preferred Stock held in its treasury, the
number of shares of Preferred Stock that will be sufficient to
permit the exercise in full of all outstanding Rights and, after
the occurrence of a Section 11(b) Event or a Section 13 Event,
shall so reserve and keep available a sufficient number of shares of
Preferred Stock, Common Stock and/or other securities which may
be required to permit the exercise in full of the Rights
pursuant to this Rights Agreement.
(b) The Company covenants and agrees that it will
take all such action as may be necessary to ensure that all
shares of Preferred Stock and/or other securities 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 nonassessable shares or
securities.
(c) The Company shall use its best efforts to
(i) file, as soon as practicable following the first occurrence
of an event which would establish the Distribution Date, a
registration statement under the Securities Act of 1933, as
amended (the "Securities 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 Securities Act) until
the Expiration Date. The Company will also take such action as
may be appropriate under the "blue sky laws" of the various
states.
(d) The Company further covenants and agrees that it
will pay when due and payable any and all federal and state
transfer taxes and charges which may be payable in respect of
the issuance or delivery of the Right Certificates or of any
shares of Preferred Stock and/or other securities upon the
exercise of Rights. The Company shall not, however, be required
to pay any transfer tax which may be payable in respect of any
transfer involved in the transfer or delivery of Right
Certificates or the issuance or delivery of certificates or
depositary receipts for Preferred Stock and/or other securities
in a name other than that of the registered holder of the Right
Certificate evidencing Rights surrendered for exercise, nor
shall the Company be required to issue or deliver any
certificates or depositary receipts for shares of Preferred
Stock and/or other securities upon the exercise of any Rights
until any such tax shall have been paid (any such tax being
payable by the holder of such Right Certificate at the time of
surrender) or until it has been established to the Company's
satisfaction that no such tax is due.
Section 10. Preferred Stock Record Date. Each person
---------------------------
(other than the Company) in whose name any certificate for
shares of Preferred Stock (or other securities) is issued upon
the exercise of Rights shall for all purposes be deemed to have
become the holder of record of the Preferred Stock (or other
11
securities) represented thereby on, and such certificate shall
be dated, the date upon which the Right Certificate evidencing
such Rights was duly surrendered and payment of the Purchase
Price (and any applicable transfer taxes) was made; provided,
however, that if the date of such surrender and payment is a
date upon which the Preferred Stock (or other securities)
transfer books of the Company are closed, such person shall be
deemed to have become the record holder of such shares on, and
such certificate shall be dated, the next succeeding Business
Day on which the Preferred Stock (or other securities) transfer
books of the Company are open. Prior to the exercise of the
Rights evidenced thereby, the holder of a Right Certificate
shall not be entitled to any rights of a stockholder of the
Company with respect to shares for which the Rights shall be
exercisable, including,
without limitation, the right to vote, to receive dividends or
other distributions or to exercise any preemptive rights, and
shall not be entitled to receive any notice of any proceedings
of the Company, except as provided herein.
Section 11. Adjustment of Purchase Price, Number of
---------------------------------------
Shares or Number of Rights. The Purchase Price, the number and
--------------------------
identity 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) In the event the Company shall at any time after
the date of this Rights Agreement (i) declare a dividend on the
Preferred Stock payable in shares of Preferred Stock,
(ii) subdivide the outstanding Preferred Stock, (iii) combine
the outstanding Preferred Stock into a smaller number of shares
or (iv) issue any shares of its capital stock in a
reclassification of the Preferred Stock (including any such
reclassification in connection with a consolidation or merger in
which the Company is the continuing or surviving corporation),
except as otherwise provided in this Section 11, the Purchase
Price in effect at the time of the record date for such dividend
or the time of the effective date of such subdivision,
combination or reclassification, and the number and kind of
shares of capital stock, including Preferred Stock, issuable
upon exercise of a Right, shall be proportionately adjusted so
that the holder of any Right exercised after such time, upon
payment of the aggregate consideration such holder would have
had to pay to exercise such Right prior to such time, shall be
entitled to receive the aggregate number and kind of shares of
capital stock, including Preferred Stock, which, if such Right
had been exercised immediately prior to such date and at a time
when the Preferred Stock transfer books of the Company were
open, such holder would have owned upon such exercise and been
entitled to receive by virtue of such dividend, subdivision,
combination or reclassification.
(b) In the event any Person becomes an Acquiring
Person ("Section 11(b) Event"), then proper provision shall be
made so that each holder of a Right, subject to Section 7(e) and
Section 24 hereof and except as provided below, shall after the
later of the occurrence of such event and the effective date of
an appropriate registration statement pursuant to Section 9
hereof, have a right to receive, upon exercise thereof at the
then current Purchase Price, multiplied by the then number of
one-one hundredths of a share of Preferred Stock for which a
Right is then exercisable, in accordance with the terms of this
Rights Agreement, in lieu of shares of Preferred Stock, such
number of shares of Common Stock of the Company as shall equal
the result obtained by (y) multiplying the then current Purchase
Price by the then number of one one-hundredths of a share of
Preferred Stock for which a Right is then exercisable and
dividing that product by (z) 50% of the current market price per
one share of Common Stock (determined pursuant to Section 11(f)
hereof on the date of the occurrence of the Section 11(b) Event)
(such number of shares being referred to as the "number of
Adjustment Shares").
(c) In the event that there shall not be sufficient
Treasury shares or authorized but unissued shares of Common
Stock to permit the exercise in full of the Rights in accordance
with the foregoing Section 11(b), and the Rights become so
exercisable, notwithstanding any other provision of this Rights
Agreement, to the extent necessary and permitted by applicable
12
law and any agreements in effect on the date hereof to which the
Company is a party, each Right shall thereafter represent the
right to receive, upon exercise thereof at the then current
Purchase Price, multiplied by the then number of one-one
hundredths of a share of Preferred Stock for which a Right is
then exercisable, in accordance with the terms of this Rights
Agreement, a number of shares, or units of shares, of (y)
Common Stock, and (z) preferred stock (or other equity
securities) of the Company, including, but not limited to
Preferred Stock, equal in the aggregate to the number of
Adjustment Shares where the Board of Directors shall have in
good faith deemed such shares or units, other than the shares
of Common Stock, to have at least the same value and voting
rights as the Common Stock (a "common stock equivalent");
provided, however, if there are unavailable sufficient shares
-------- -------
(or fractions of shares) of Common Stock and/or common stock
equivalents, then the Company shall take all such action as may
be necessary to authorize additional shares of Common Stock or
common stock equivalents for issuance upon exercise of the
Rights, including the calling of a meeting of stockholders; and
---
provided, further, that if the Company is unable to cause
-------- -------
sufficient shares of Common Stock and/or common stock
equivalents to be available for issuance upon exercise in full
of the Rights, then the Company, to the extent necessary and
permitted by applicable law and any agreements or instruments
in effect on the date thereof to which it is a party, shall
make provision to pay an amount in cash equal to twice the
Purchase Price (as adjusted pursuant to this Section 11), in
lieu of issuing shares of Common Stock and/or common stock
equivalents. To the extent that the Company determines that
some action needs to be taken pursuant to this Section 11(c),
the Board of Directors by action of at least a majority of its
members then in office may suspend the exercisability of the
Rights for a period of up to sixty (60) days following the date
on which the Section 11(b) Event shall have occurred, in order
to decide the appropriate form of distribution to be made
pursuant to this Section 11(c) and to determine the value
thereof. In the event of any such suspension, the Company
shall issue a public announcement stating that the
exercisability of the Rights has been temporarily suspended.
The Board of Directors may, but shall not be required to,
establish procedures to allocate the right to receive Common
Stock and common stock equivalents upon exercise of the Rights
among holders of Rights, which such allocation may be, but is
not required to be, pro-rata.
(d) If the Company shall fix a record date for the
issuance of rights or warrants to all holders of Preferred
Stock entitling them (for a period expiring within 90 calendar
days after such record date) to subscribe for or purchase
Preferred Stock (or securities having the same or more
favorable rights, privileges and preferences as the Preferred
Stock ("equivalent preferred stock")) or securities convertible
into Preferred Stock or equivalent preferred stock, at a price
per share of Preferred Stock or per share of equivalent
preferred stock or having a conversion or exercise price per
share, as the case may be, less than the current market price
per share of Preferred Stock (as defined in Section 11(f)
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 date by a
fraction, the numerator of which shall be the number of shares
of Preferred Stock outstanding on such record date plus the
number of shares of Preferred Stock which the aggregate
offering price of the total number of shares of Preferred Stock
or equivalent preferred stock to be offered (and/or the
aggregate initial conversion price of the convertible
securities so to be offered) would purchase at such current
market price, and the denominator of which shall be the number
of shares of Preferred Stock outstanding on such record date
plus the number of additional shares of Preferred
Stock and/or equivalent preferred stock to be offered for
subscription or purchase (or into which the convertible
securities so to be offered are initially convertible). In
case such subscription price may be paid in a consideration,
part or all of which shall be in a form other than cash, the
value of such consideration shall be as determined in good
faith by a majority of the Board of Directors, whose
determination shall be described in a statement filed with the
Rights Agent. Shares of Preferred Stock owned by or held for
the account of the Company shall not be deemed outstanding for
the purpose of any such computation. Such adjustment shall be
made successively whenever such a record date is fixed; and in
13
the event that such rights or warrants are not so issued, the
Purchase Price shall be adjusted to be the Purchase Price which
would then be in effect if such record date had not been fixed.
(e) If the Company shall fix a record date for the
making of a distribution to all holders of Preferred Stock
(including any such distribution made in connection with a
consolidation or merger in which the Company is the continuing
or surviving corporation) of evidences of indebtedness, cash
(other than a regular periodic cash dividend out of earnings or
retained earnings of the Company), assets (other than a
dividend payable in Preferred Stock, but including any dividend
payable in stock other than Preferred Stock) or convertible
securities, subscription rights or warrants (excluding those
referred to in Section 11(d) hereof), the Purchase Price to be
in effect after such record date shall be determined by
multiplying the Purchase Price in effect immediately prior to
such record date by a fraction, the numerator of which shall be
the current market price for one share of Preferred Stock (as
defined in Section 11(f) hereof) on such record date less the
fair market value (as determined in good faith by a majority of
the Board of Directors, whose determination shall be described
in a statement filed with the Rights Agent) of the portion of
the assets or evidences of indebtedness so to be distributed or
of such convertible securities, subscription rights or warrants
applicable to one share of Preferred Stock, and the denominator
of which shall be such current market price for one share of
Preferred Stock. Such adjustments shall be made successively
whenever such a record date is fixed; and in the event that
such distribution is not so made, the Purchase Price shall
again be adjusted to be the Purchase Price which would then be
in effect if such record date had not been fixed.
(f) (i) For the purpose of any computation
hereunder, the "current market price" of any security (a
"Security" for purposes of this Section 11(f)(i)) on any date
shall be deemed to be the average of the daily closing prices
per share of such Security for the 30 consecutive Trading Days
(as hereinafter defined) immediately prior to such date;
provided, however, that in the event that the current market
-------- -------
price per share of such 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 shares
of such Security or (B) any subdivision, combination or
reclassification of such Security, and prior to the expiration
of 30 Trading Days after the ex-dividend date for such dividend
or distribution or the record date for such subdivision,
combination or reclassification, then, and in each such case,
the "current 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 or admitted to trading on the
principal national securities exchange on which the Security is
listed or admitted to trading or, if the Security is not listed
or admitted to trading on any national securities exchange, as
reported by the National Association of Securities Dealers,
Inc. Automated Quotation System ("Nasdaq") National Market
System, or if the Security is not listed or admitted to trading
on any national securities exchange or included in the Nasdaq
National Market System, the average of the high bid and low
asked prices in the over-the-counter market, as reported by
Nasdaq or such other system then in use, or, if on any such
date the Security is not quoted by any such organization, the
average of the closing bid and asked prices as furnished by a
professional market maker making a market in the Security
selected by a majority of the Board of Directors. If on any
such date no market maker is making a market in the Security,
the fair value of such Security on such date as determined in
good faith by a majority of the Board of Directors 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 day on which the
14
Nasdaq National Market System is open for the transaction of
business or, if the Security is not listed or admitted to
trading on any national securities exchange or included in the
Nasdaq National Market System, a Business Day. If the Security
is not publicly held or not so listed or traded, "current
market price" shall mean the fair value as determined in good
faith by a majority of the Board of Directors, whose
determination shall be described in a statement filed with the
Rights Agent.
(ii) For the purpose of any computation hereunder,
the "current market price" per share (or one one-hundredth of a
share) of Preferred Stock shall be determined in the same
manner as set forth above for the Common Stock in clause (i) of
this Section 11(f) (other than the last sentence thereof). If
the current market price per share (or one one-hundredth of a
share) of Preferred Stock cannot be determined in the manner
provided above or if the Preferred Stock is not publicly held
or listed or traded in a manner described in clause (i) of this
Section 11(f), the "current market price" per share of
Preferred Stock shall be conclusively deemed to be an amount
equal to 100 (as such number may be appropriately adjusted for
such events as stock splits, stock dividends and
recapitalizations with respect to the Common Stock occurring
after the date of this Rights Agreement) multiplied by the
current market price per share of the Common Stock and the
"current market price" per one one-hundredth of a share of
Preferred Stock shall be equal to the current market price per
share of the Common Stock (as appropriately adjusted). If
neither the Common Stock nor the Preferred Stock is publicly
held or so listed or traded, "current market price" per share
shall mean the fair value per share as determined in good faith
by the Board of Directors, whose determination shall be
described in a statement filed with the Rights Agent and shall
be conclusive for all purposes.
(g) 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(g) 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 ten-thousandth of a share, as the case may be.
Notwithstanding the first sentence of this Section 11(g), any
adjustment required by this Section 11 shall be made no later
than the earlier of (i) three years from the date of the
transaction which mandates such adjustment or (ii) the
Expiration Date.
(h) In the event that at any time, as a result of an
adjustment made pursuant to Section 11(a) or (b) hereof, the
holder of any Right shall be entitled to receive upon exercise
of such Right any shares of capital stock of the Company other
than shares of Preferred Stock, thereafter the number of such
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 shares contained in Section 11(a) through
(e) hereof, inclusive, and the provisions of Sections 7, 9, 10,
13 and 14 hereof with respect to the shares of Preferred Stock
shall apply on like terms to any such other shares.
(i) All Rights originally issued by the Company
subsequent to any adjustment made to the Purchase Price
hereunder shall evidence the right to purchase, at the adjusted
Purchase Price, the number of one one-hundredths of a share of
Preferred Stock or other capital stock of the Company
purchasable from time to time hereunder upon exercise of the
Rights, all subject to further adjustment of the Purchase
Price.
(j) Unless the Company shall have exercised its
election as provided in Section 11(k) hereof, upon each
adjustment of the Purchase Price as a result of the
calculations made in Section 11(d) and (e) 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-hundredths of a
share of Preferred Stock (calculated to the nearest ten-
15
thousandth) obtained by (i) multiplying (A) the number of one
one-hundredths of a share of Preferred Stock covered by a Right
immediately prior to the adjustment 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.
(k) The Company may elect on or after the date of
any adjustment of the Purchase Price to adjust the number of
Rights, in substitution for any adjustment in the number of
shares of Preferred Stock purchasable upon the exercise of a
Right. Each of the Rights outstanding after such adjustment of
the number of Rights shall be exercisable for the number of one
one-hundredths of a share of Preferred Stock for which such
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 ten-thousandth) obtained by dividing the
Purchase Price in effect immediately prior to adjustment of the
Purchase Price by the Purchase Price in effect immediately
after adjustment of the Purchase Price. The Company shall make
a public announcement of its election to adjust the number of
Rights, indicating the record date for the adjustment, and, if
known at the time, the amount of the adjustment to be made.
This record date may be the date on which the Purchase Price is
adjusted or any day thereafter, but, if the Right Certificates
have been issued, shall be at least 10 days later than the date
of the public announcement. If Right Certificates have been issued, upon
each adjustment of the number of Rights pursuant to this
Section 11(k), the Company 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 Company, shall cause to be distributed
to such holders of record in substitution and replacement for
the Right Certificates held by such holders prior to the date
of adjustment, and upon surrender thereof, if required by the
Company, new Right Certificates evidencing all the Rights to
which such holders shall be entitled after such adjustment.
Right Certificates so to be distributed shall be issued,
executed and countersigned in the manner provided for herein
(and may bear, at the option of the Company, the adjusted
Purchase Price) and shall be registered in the names of the
holders of record of Right Certificates on the record date
specified in the public announcement.
(l) Irrespective of any adjustment or change in the
Purchase Price or the number of shares of Preferred Stock
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 shares which were
expressed in the initial Right Certificates issued hereunder.
(m) Before taking any action that would cause an
adjustment reducing the Purchase Price below the then par
value, if any, of the shares of Common Stock or other
securities and below one one-hundredth of the then par value,
if any, of the Preferred Stock, issuable upon exercise of the
Rights, the Company shall take any corporate action which may,
in the opinion of its counsel, be necessary in order that the
Company may validly and legally issue fully paid and
nonassessable shares of such Preferred Stock, Common Stock or
other securities at such adjusted Purchase Price. If upon any
exercise of the Rights, a holder is to receive a combination of
Common Stock and common stock equivalents, a portion of the
consideration paid upon such exercise, equal to at least the
then par value of a share of Common Stock of the Company, shall
be allocated as the payment for each share of Common Stock of
the Company so received.
(n) In any case in which this Section 11 shall
require that an adjustment in the Purchase Price be made
effective as of a record date for a specified event, the
Company may elect to defer until the occurrence of such event
the issuing to the holder of any Right exercised after such
record date the shares of Preferred Stock and other capital
stock or securities of the Company, if any, issuable upon such
exercise over and above the shares of Preferred Stock and other
capital stock or securities of the Company, if any, issuable
16
upon such exercise on the basis of the Purchase Price in effect
prior to such adjustment; provided, however, that the Company
-------- -------
shall deliver to such holder a due xxxx or other appropriate
instrument evidencing such holder's right to receive such
additional shares upon the occurrence of the event requiring
such adjustment.
(o) Anything in this Section 11 to the contrary
notwithstanding, the Company shall be entitled to make such
reductions in the Purchase Price, in addition to those
adjustments expressly required by this Section 11, as and to
the extent that in their good faith judgment a majority of the
Board of Directors shall determine to be advisable in order
that any (i) consolidation or subdivision of the Preferred
Stock, (ii) issuance wholly for cash of any Preferred Stock at
less than the then current market price, (iii) issuance wholly
for cash of Preferred Stock or securities which by their terms are
convertible into or exchangeable for Preferred Stock, (iv)
stock dividends or (v) issuance of rights, options or warrants
referred to hereinabove in this Section 11, hereafter made by
the Company to the holders of its Preferred Stock, shall not be
taxable to such stockholders.
(p) In the event that at any time after the date of
this Rights Agreement and prior to the Distribution Date, the
Company shall (i) declare or pay any dividend on the Common
Stock payable in shares of Common Stock or (ii) effect a
subdivision, combination or consolidation of the Common Stock
(by reclassification or otherwise than by payment of dividends
in shares of Common Stock) into a greater or lesser number of
shares of Common Stock, then in any such case (y) the number of
one one-hundredths of a share of Preferred Stock purchasable
after such event upon proper exercise of each Right shall be
determined by multiplying the number of one one-hundredths of a
share of Preferred Stock so purchasable immediately prior to
such event by a fraction, the numerator of which is the number
of shares of Common Stock outstanding immediately before such
event and the denominator of which is the number of shares of
Common Stock outstanding immediately after such event, and (z)
each share of Common Stock outstanding immediately after such
event shall have issued with respect to it that number of
Rights which each share of Common Stock outstanding immediately
prior to such event had issued with respect to it. The
adjustments provided for in this Section 11(p) shall be made
successively whenever such a dividend is declared or paid or
such a subdivision, combination or consolidation is effected.
(q) The Company covenants and agrees that it shall
not, at any time after the Distribution Date and so long as the
Rights have not been redeemed pursuant to Section 23 hereof or
exchanged pursuant to Section 24 hereof, (i) consolidate with,
(ii) merge with or into, or (iii) sell or transfer, in one or
more transactions, assets or earning power aggregating more
than 50% of the assets or earning power of the Company and its
Subsidiaries (taken as a whole) to, any other Person, if at the
time of or immediately after such consolidation, merger or sale
there are any rights, warrants or other instruments or
securities outstanding or agreements in effect which would
substantially diminish or otherwise eliminate the benefits
intended to be afforded by the Rights.
(r) The Company covenants and agrees that, after the
Stock Acquisition Date, it will not, except as permitted by
Sections 23 and 24 hereof, take any action the purpose or
effect of which is to diminish substantially or otherwise
eliminate the benefits intended to be afforded by the Rights.
Section 12. Certificate of Adjusted Purchase Price
--------------------------------------
or Number of Shares. Whenever an adjustment is made as
-------------------
provided in Sections 11 or 13 hereof, the Company shall (a)
promptly prepare a certificate setting forth such adjustment,
and a brief statement of the facts accounting for such
17
adjustment, (b) promptly file with the Rights Agent and with each transfer
agent for the Preferred Stock and the Common Stock a copy of
such certificate and (c) include a brief summary thereof in a
mailing to each holder of a Right Certificate in accordance
with Section 26 hereof, or prior to the Distribution Date,
disclose a brief summary in a filing under the Exchange Act.
The Rights Agent shall be fully protected in relying on any
such certificate and on any adjustments therein contained.
Section 13. Consolidation, Merger or Sale or
--------------------------------
Transfer of Assets or Earning Power.
-----------------------------------
(a) In the event that, directly or indirectly, at
any time after a Person has become an Acquiring Person, (x) the
Company shall consolidate with, or merge with and into, any
other Person, (y) any Person shall consolidate with or merge
with and into the Company, and the Company shall be the
continuing or surviving corporation of such merger and, in
connection with such merger, all or part of the Common Stock
shall be changed into or exchanged for stock or other
securities of any other Person (or the Company) or cash or any
other property, or (z) the Company shall sell, or otherwise
transfer (or one or more of its Subsidiaries shall sell or
otherwise transfer), in one or more transactions, assets or
earning power aggregating 50% or more of the assets or earning
power of the Company and its Subsidiaries (taken as a whole) to
any other Person other than to the Company or one or more of
its wholly-owned Subsidiaries, then, and in each such case,
proper provision shall be made so that (i) each holder of a
Right, subject to Section 7(e) hereof, shall thereafter have
the right to receive, upon the exercise thereof at the then
current Purchase Price multiplied by the then number of one-one
hundredths of a share of Preferred Stock for which a Right is
then exercisable (or if a Section 11(b) Event has occurred
prior to the first occurrence of a Section 13 Event,
multiplying the number of such one one-hundredths of a share
for which a Right was exercisable immediately prior to the
first occurrence of a Section 11(b) Event by the Purchase Price
in effect immediately prior to such first occurrence) in
accordance with the terms of this Rights Agreement, in lieu of
Preferred Stock, such number of shares of freely tradable
Common Stock of the Principal Party (as hereinafter defined),
free and clear of liens, rights of call or first refusal,
encumbrances or other adverse claims, as shall be equal to the
result obtained by (A) multiplying the then current Purchase
Price by the number of one one-hundredths of a share of
Preferred Stock for which a Right is then exercisable (or if a
Section 11(b) Event has occurred prior to the first occurrence
of a Section 13 Event, multiplying the number of such one one-
hundredths of a share for which a Right was exercisable
immediately prior to the first occurrence of a Section 11(b)
Event by the Purchase Price in effect immediately prior to such
first occurrence), and dividing that product by (B) 50% of the
current market price per share of the Common Stock of such
Principal Party (determined in the manner described in Section
11(f) hereof) on the date of consummation of such
consolidation, merger, sale or transfer; (ii) the Principal
Party shall thereafter be liable for, and shall assume, by
virtue of such consolidation, merger, sale or transfer, all the
obligations and duties of the Company pursuant to this Rights
Agreement; (iii) the term "Company" shall thereafter be deemed
to refer to such Principal Party, it being specifically
intended that the provisions of Section 11 hereof, except for
the provisions of 11(b), shall apply to such Principal Party;
and (iv) such Principal Party shall take such steps (including,
but not limited to, the authorization and reservation of a
sufficient number of shares of its Common Stock to permit
exercise of all outstanding Rights in accordance with this
Section 13(a)) in connection with such consummation as may be
necessary to assure that the provisions hereof shall thereafter
be applicable, as nearly as reasonably may be, in relation to
the shares of its Common Stock thereafter deliverable upon the
exercise of the Rights.
(b) "Principal Party" shall mean:
18
(i) in the case of any transaction described in
clause (x) or (y) of the first sentence of Section 13(a)
hereof, the Person that is the issuer of any securities
into which shares of Common Stock of the Company are converted
in such merger or consolidation, and if no securities are
so issued, the Person, including the Company, that is the
other party to the merger or consolidation; and
(ii) in the case of any transaction described in
clause (z) of the first sentence of Section 13(a) hereof,
the Person that is the party receiving the greatest
portion of the assets or earning power transferred
pursuant to such transaction or transactions; provided,
however, that in any case described in clause (i) or (ii)
in this Section 13(b), (x) if the Common Stock of such
Person is not at such time and has not been continuously
over the preceding 12-month period registered under
Section 12 of the Exchange Act, and such Person is a
direct or indirect Subsidiary or Affiliate of another
Person, "Principal Party" shall refer to such other
Person; (y) in case such Person is a Subsidiary, directly
or indirectly, or Affiliate of more than one Person, the
Common Stocks of all of which are and have been so
registered, "Principal Party" shall refer to whichever of
such Persons is the issuer of the Common Stock having the
greatest aggregate market value, and (z) in case such
Person is, or is owned directly or indirectly by, a
partnership or joint venture formed by two or more Persons
that are not owned, directly or indirectly, by the same
Person, the rules set forth in (x) and (y) 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 Company shall not consummate any such
consolidation, merger, sale or transfer unless the Principal
Party shall have a sufficient number of shares of its
authorized Common Stock which have not been issued or reserved
for issuance to permit the exercise in full of the Rights in
accordance with this Section 13 and unless prior thereto the
Company and each Principal Party and each other Person who may
become a Principal Party as a result of such consolidation,
merger, sale or transfer shall have executed and delivered to
the Rights Agent a supplemental agreement providing for the
terms set forth in paragraphs (a) and (b) of this Section 13
and further providing that, as soon as practicable after the
date of any consolidation, merger, sale or transfer of assets
mentioned in paragraph (a) of this Section 13, the Principal
Party will:
(i) prepare and file a registration statement
under the Securities Act with respect to the Rights and
the securities purchasable upon exercise of the Rights on
an appropriate form, will use its best efforts to cause
such registration statement to become effective as soon as
practicable after such filing and will use its best
efforts to cause such registration statement to remain
effective (with a prospectus at all times meeting the
requirements of the Securities Act) until the Expiration
Date;
(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) will deliver to holders of the Rights
historical financial statements for the Principal Party
and each of its Affiliates which comply in all respects
with the requirements for registration on Form 10 under the
Exchange Act.
The provisions of this Section 13 shall similarly
apply to successive mergers or consolidations or sales or other
transfers. In the event that a Section 13 Event shall occur at
19
any time after the occurrence of a Section 11(b) Event, the
Rights which have not theretofore been exercised shall
thereafter also become exercisable in the manner described in
Section 13(a) hereof.
Section 14. Fractional Rights and Fractional Shares.
---------------------------------------
(a) The Company shall not be required to issue
fractions of Rights or to distribute Right Certificates which
evidence fractional Rights. 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
or admitted to trading 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, as reported by the Nasdaq
National Market System or, if the Rights are not listed or
admitted to trading on any national securities exchange or
included in the Nasdaq National Market System, 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 a majority of the Board of Directors. 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 a majority of the Board of Directors shall be
used.
(b) The Company shall not be required to issue
fractions of shares of Preferred Stock (other than fractions
which are integral multiples of one one-hundredth of a share of
Preferred Stock) upon exercise of the Rights or to distribute
certificates which evidence fractional shares of Preferred
Stock (other than fractions which are integral multiples of one
one-hundredth of a share of Preferred Stock). Fractions of
shares of Preferred Stock in integral multiples of one one-
hundredth of a share of Preferred Stock may, at the election of
the Company, be evidenced by depositary receipts, pursuant to
an appropriate agreement between the Company and a depositary
selected by it, provided that such agreement shall provide that
the holders of such depositary receipts shall have all the
rights, privileges and preferences to which they are entitled
as beneficial owners of the shares of Preferred Stock
represented by such depositary receipts. In lieu of fractional shares of
Preferred Stock that are not integral multiples of one one-
hundredth of a share of Preferred Stock, the Company may pay to
the registered holders of Right Certificates at the time such
Right Certificates are exercised as herein provided an amount
in cash equal to the same fraction of the current market value
of one one-hundredths of a share of Preferred Stock. For
purposes of this Section 14(b), the current market value of one
one-hundredth of a share of Preferred Stock shall be one one-
hundredth of the closing price of a share of Preferred Stock
(as determined pursuant to Section 11(f)(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 hereof giving
rise to the right to receive common stock equivalents (other
than Preferred Stock) or other securities upon the exercise of
a Right, the Company shall not be required to issue fractions
of shares or units of such common stock equivalents or other
20
securities upon exercise of the Rights or to distribute
certificates which evidence fractional shares of such common
stock equivalents or other securities. In lieu of fractional
shares or units of such common stock equivalents or other
securities, the Company 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
stock equivalent 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(f) hereof for the Trading
Day immediately prior to the date of such exercise and, if such
common stock equivalent is not traded, each such common stock
equivalent shall have the value of one one-hundredth of a share
of Preferred Stock.
(d) Except as otherwise expressly provided in this
Section 14, the holder of a Right by the acceptance of the
Right expressly waives such holder's right to receive any
fractional Rights or any fractional share upon exercise of
Rights.
Section 15. Rights of Action. All rights of action
----------------
in respect of this Rights Agreement, except for rights of
action given to the Rights Agent under Section 18 or Section 20
hereof, are vested in the respective registered holders of the
Right Certificates (and, prior to the Distribution Date, the
registered holders of Common Stock); and any registered holder
of any Right Certificate (or, prior to the Distribution Date,
of the Common Stock), without the consent of the Rights Agent
or of the holder of any other Right Certificate (or, prior to
the Distribution Date, of the Common Stock), may, in such
holder's own behalf and for such holder's own benefit, enforce,
and may institute and maintain any suit, action or proceeding
against the Company to enforce, or otherwise act in respect of,
his right to exercise the Rights evidenced by such Right
Certificate in the manner provided in such Right Certificate
and in this Rights Agreement. Without limiting the foregoing or
any remedies available to the holders of Rights, it is
specifically acknowledged that the holders of Rights would not
have an adequate remedy at law for any breach of this Rights
Agreement and will be entitled to specific performance of the
obligations under, and injunctive relief against actual or
threatened violations of, the obligations of any Person subject
to this Rights Agreement. Holders of Rights shall be entitled
to recover the reasonable costs and expenses, including
attorneys' fees, incurred by them in any action to enforce the
provisions of this Rights Agreement.
Section 16. Agreement of Right Holders. Every
--------------------------
holder of a Right by accepting the same consents and agrees
with the Company and the Rights Agent and with every other
holder of a Right that:
(a) prior to the Distribution Date, the Rights will
be transferable only in connection with the transfer of Common
Stock;
(b) after the Distribution Date, the Right
Certificates are transferable only on the registry books of the
Rights Agent if surrendered at the stockholder services office
of the Rights Agent or such office designated for such purpose,
duly endorsed or accompanied by a proper instrument of
transfer; and
(c) the Company and the Rights Agent may deem and
treat the person in whose name the Right Certificate (or, prior
to the Distribution Date, the associated Common Stock
Certificate) is registered as the absolute owner thereof and of
the Rights evidenced thereby (notwithstanding any notations of
ownership or writing on the Right Certificate or the associated
Common Stock certificate made by anyone other than the Company
or the Rights Agent) for all purposes whatsoever, and neither
the Company nor the Rights Agent shall be affected by any
notice to the contrary.
21
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 Preferred Stock, Common Stock or any
other securities of the Company which may at any time be
issuable on the exercise of the Rights represented thereby, nor
shall anything contained herein or in any Right Certificate be
construed to confer upon the holder of any Right Certificate,
as such, any of the rights of a stockholder of the Company or
any right to vote for the election of directors or upon any
matter submitted to stockholders at any meeting thereof, or to
give or withhold consent to any corporate action, or to receive
notice of meetings or other actions affecting stockholders
(except as provided in Section 25 hereof), or to receive
dividends 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.
---------------------------
(a) The Company agrees to pay to the Rights Agent
reasonable compensation for all services rendered by it
hereunder and, from time to time, on demand of the Rights
Agent, its reasonable expenses and counsel fees and other
disbursements incurred in the administration and execution of
this Rights Agreement and the exercise and performance of its
duties hereunder. The Company shall indemnify the Rights Agent for,
and hold harmless against, any loss, liability, claim or expense
("Loss") arising out of or in connection with its duties under this
Agreement, includng the costs and expenses of defending itself against
any Loss, unless such Loss shall have been determined by a court of
competent jurisdiction to be a result of the Rights Agent's gross
negligence or intentional misconduct. The obligations or the Company
under this section shall survive the termination of this Agreement.
(b) The Rights Agent shall be protected and shall
incur no liability for or in respect of any action taken,
suffered or omitted by it in connection with its administration
of this Rights Agreement in reliance upon any Right Certificate
or certificate for Preferred Stock, Common Stock or for other
securities of the Company, instrument of assignment or
transfer, power of attorney, endorsement, affidavit, letter, notice,
direction, consent, certificate, statement, or other paper or
document believed by it to be genuine and to be signed,
executed and, where necessary, verified or acknowledged, by the
proper Person or Persons.
Section 19. Merger or Consolidation or Change of
------------------------------------
Name of Rights Agent.
--------------------
(a) Any corporation into which the Rights Agent or
any successor Rights Agent may be merged or with which it may
be consolidated, or any corporation resulting from any merger
or consolidation to which the Rights Agent or any successor
Rights Agent shall be a party, or any corporation succeeding to
the corporate trust powers or business or the stock transfer
business of the Rights Agent or any successor Rights Agent,
shall be the successor to the Rights Agent under this Rights
Agreement without the execution or filing of any paper or any
further act on the part of any of the parties hereto, provided
that such corporation would be eligible for appointment as a
successor Rights Agent under the provisions of Section 21
hereof. In case at the time such successor Rights Agent shall
succeed to the agency created by this Rights Agreement, any of
the Right Certificates shall have been countersigned but not
delivered, any such successor Rights Agent may adopt the
countersignature of the predecessor Rights Agent and deliver
such Right Certificates so countersigned; and in case at that
time any of the Right Certificates shall not have been
countersigned, any successor Rights Agent may countersign such
Right Certificates either in the name of the predecessor Rights
Agent or in the name of the successor Rights Agent; and in all
such cases such Right Certificates shall have the full force
provided in the Right Certificates and in this Rights
Agreement.
22
(b) In case at any time the name of the Rights Agent
shall be changed and at such time any of the Right Certificates
shall have been countersigned but not delivered, the Rights
Agent may adopt the countersignature under its prior name and
deliver Right Certificates so countersigned; and in case at
that time any of the Right Certificates shall not have been
countersigned, the Rights Agent may countersign such Right
Certificates either in its prior name or in its changed name;
and in all such cases such Right Certificates shall have the
full force provided in the Right Certificates and in this
Rights Agreement.
Section 20. Duties of Rights Agent. The Rights
----------------------
Agent undertakes the duties and obligations imposed by this
Rights Agreement upon the following terms and conditions, by
all of which the Company and the holders of Right Certificates,
by their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel
(who may be legal counsel for the Company), and the opinion of
such counsel shall be full and complete authorization and
protection to the Rights Agent as to any action taken or
omitted by it in good faith and in accordance with such
opinion.
(b) Whenever in the performance of its duties under
this Rights Agreement the Rights Agent shall deem it necessary
or desirable that any fact or matter be proved or established
by the Company prior to taking or suffering any action
hereunder, such fact or matter (unless other evidence in
respect thereof be herein specifically prescribed) may be
deemed to be conclusively proved and established by a
certificate signed by the Chairman of the Board, the Chief
Executive Officer, the President or any Vice President and by
the Treasurer or any Assistant Treasurer or the
Secretary or any Assistant Secretary of the Company and
delivered to the Rights Agent; and such certificate shall be
full authorization to the Rights Agent for any action taken or
suffered in good faith by it under the provisions of this
Rights Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder only
for its own negligence, bad faith or willful misconduct. In no
case, however, will the Rights Agent be liable for special,
indirect, incidental or consequential loss or damages of any kind
whatsoever (including but not limited to lost profits), even if
the Rights Agent has been advised of the possiblity of such damages.
(d) The Rights Agent shall not be liable for or by
reason of any of the statements of fact or recitals contained
in this Rights Agreement or in the Right Certificates (except
its countersignature thereof) or be required to verify the
same, but all such statements and recitals are and shall be
deemed to have been made by the Company only.
(e) The Rights Agent shall not be under any
responsibility in respect of the validity of this Rights
Agreement or the execution and delivery hereof (except the due
execution hereof by the Rights Agent) or in respect of the
validity or execution of any Right Certificate (except its
countersignature thereof); nor shall it be responsible for any
breach by the Company of any covenant or condition contained in
this Rights Agreement or in any Right Certificate; nor shall it
be responsible for any adjustment required under the provisions
of Sections 11 or 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 actual notice to the Rights Agent of
any such adjustment); nor shall it by any act hereunder be
deemed to make any representation or warranty as to the
authorization or reservation of any shares of Preferred Stock
or other securities to be issued pursuant to this Rights
Agreement or any Right Certificate or as to whether any shares
23
of Preferred Stock or other securities will, when issued, be
validly authorized and issued, fully paid and nonassessable.
(f) The Company agrees that it will perform,
execute, acknowledge and deliver or cause to be performed,
executed, acknowledged and delivered all such further and other
acts, instruments and assurances as may reasonably be required
by the Rights Agent for the carrying out or performing by the
Rights Agent of the provisions of this Rights Agreement.
(g) The Rights Agent is hereby authorized and
directed to accept instructions with respect to the performance
of its duties hereunder from the Chairman of the Board, the
President, any Vice President, the Secretary, any Assistant
Secretary, the Treasurer or any Assistant Treasurer of the
Company, and to apply to such officers for advice or
instructions in connection with its duties, and it shall not be
liable for any action taken or suffered to be taken by it in
good faith in accordance with instructions of any such officer
or for any delay in acting while waiting for those
instructions.
(h) The Rights Agent and any stockholder, director,
officer, employee, agent or representative of the Rights Agent
may buy, sell or deal in any of the Rights or other securities
of the Company or become pecuniarily interested in any
transaction in which the Company may be interested, or contract
with or lend money to the Company or otherwise act as fully and
freely as though it were not the Rights Agent under this Rights
Agreement. Nothing herein shall preclude the Rights Agent from
acting in any other capacity for the Company or for any other
legal entity.
(i) The Rights Agent may execute and exercise any of
the rights or powers hereby vested in it or perform any duty
hereunder either itself or by or through its attorneys or
agents, and the Rights Agent shall not be answerable or
accountable for any act, default, neglect or misconduct of any
such attorneys or agents or for any loss to the Company
resulting from any such act, default, neglect or misconduct,
provided that reasonable care was exercised in the selection
and continued employment thereof.
(j) No provision of this Rights Agreement shall
require the Rights Agent to expend or risk its own funds or
otherwise incur any financial liability in the performance of
any of its duties hereunder or in the exercise of its rights if
there shall be reasonable grounds for believing that repayment
of such funds or adequate indemnification against such risk or
liability is not reasonably assured to it.
(k) If, with respect to any Rights Certificate
surrendered to the Rights Agent for exercise or transfer, the
certificate attached to the form of assignment or form of
election to purchase, as the case may be, has either not been
completed or indicates an affirmative response to clause 1,
clause 2 and/or, in the case of the certificate attached to
the form of election to purchase, clause 3 thereof, the Rights
Agent shall not take any further action with respect to such
requested exercise of transfer without first consulting with
the Company.
Section 21. Change of Rights Agent. The Rights
----------------------
Agent or any successor Rights Agent may resign and be
discharged from its duties under this Rights Agreement upon 30
days' notice in writing mailed to the Company and to each
transfer agent of the Common Stock and Preferred Stock by
registered or certified mail, and to the holders of the Right
Certificates by first-class mail. The Company may remove the
Rights Agent or any successor Rights Agent upon 30 days' notice
in writing, mailed to the Rights Agent or successor Rights
Agent, as the case may be, and to each transfer agent of the
Common Stock and Preferred Stock by registered or certified
mail, and to the holders of the Right Certificates by first-
class mail or, prior to the Distribution Date, through any
filing made by the Company pursuant to the Exchange Act. If
the Rights Agent shall resign or be removed or shall otherwise
become incapable of acting, the Company shall appoint a
24
successor to the Rights Agent. If the Company shall fail to
make such appointment within a period of 30 days after such
removal or after it has been notified in writing of such
resignation or incapacity by the resigning or incapacitated
Rights Agent or by the holder of a Right Certificate (which
holder shall, with such notice, submit such holder's Right
Certificate for inspection by the Company), then the registered
holder of any Right Certificate may apply to any court of
competent jurisdiction for the appointment of a new Rights
Agent. Any successor Rights Agent, whether appointed by the
Company or by such a court, shall be (a) a corporation or other
entity organized and doing business under the laws of the
United States or of any state, in good standing, having an
office in the States of New York or Nevada, which is authorized
under such laws to exercise corporate trust or stock transfer
powers and is subject to supervision or examination by federal
or state authority or (b) an affiliate of a corporation or
other entity described in clause (a) of this sentence. After
appointment, the successor Rights Agent shall be vested with
the same powers, rights, duties and responsibilities as if it
had been originally named as Rights Agent without further act
or deed; but the predecessor Rights Agent shall deliver and
transfer to the successor Rights Agent any property at the time
held by it hereunder, and execute and
deliver any further assurance, conveyance, act or deed
necessary for the purpose. Not later than the effective date
of any such appointment the Company shall file notice thereof
in writing with the predecessor Rights Agent and each transfer
agent of the Common Stock and Preferred Stock, and mail a
notice thereof in writing to the registered holders of the
Right Certificates or, prior to the Distribution Date, through
any filing made by the Company pursuant to the Exchange Act.
Failure to give any notice provided for 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.
----------------------------------
(a) Notwithstanding any of the provisions of this
Rights Agreement or of the Rights to the contrary, the Company
may, at its option, issue new Right Certificates evidencing
Rights in such form as may be approved by a majority of the
Board of Directors then in office to reflect any adjustment or
change in the Purchase Price and the number or kind or class of
shares of stock or other securities or property purchasable
under the Right Certificates made in accordance with the
provisions of this Rights Agreement.
(b) In addition, in connection with the issuance or
sale of Common Stock following the Distribution Date and prior
to the redemption, exchange or expiration of the Rights, the
Company (a) shall with respect to shares of Common Stock so
issued or sold pursuant to the exercise of stock options or
under any employee benefit plan or arrangement, or upon the
exercise, conversion or exchange of securities hereinafter
issued by the Company, and (b) may, in any other case, if
deemed necessary or appropriate by the Board of directors,
issue Right Certificates representing the appropriate number of
Rights in connection with such issuance or sale; provided,
--------
however, that (i) no such Right Certificates shall be issued
-------
if, and to the extent that, the Company shall be advised by
counsel that such issuance would create a significant risk of
material adverse tax consequences to the Company or the Person
to whom such Right Certificates 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.
25
Section 23. Redemption and Termination.
--------------------------
(a) A majority of the Board of directors then in
office may, at its option, at any time prior to the earlier of
(i) the close of business on the Stock Acquisition Date or (ii)
the close of business on the Final Expiration Date, elect to
redeem all but not less than all of the then outstanding Rights
at a redemption price of $0.01 per Right, as 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").
The redemption of the Rights by the Board of Directors may be
made effective at such time, on such basis and with such
conditions as the Board of Directors in its sole discretion may
establish.
(b) Immediately upon the action of a majority of the
Board of Directors then in office electing to redeem the
Rights, evidence of which shall be promptly filed with the
Rights Agent, or, when appropriate, immediately upon the time
or satisfaction of such conditions as the Board of Directors
may have established, and without any further action and
without any notice, the right to exercise the Rights will terminate and the
only right thereafter of the holders of Rights shall be to
receive the Redemption Price. The Company shall promptly give
public disclosure of any such redemption; provided, however,
-------- -------
that the failure to give, or any defect in, any such disclosure
shall not affect the validity of such redemption. Within 10
days after the action of the Board of Directors ordering the
redemption of the Rights, the Company shall give notice of such
redemption to the holders of the then outstanding Rights by
mailing such notice to all such holders at their last addresses
as they appear upon the registry books of the Rights Agent or,
prior to the Distribution Date, on the registry books of the
Transfer Agent for the Common Stock. Any notice which is
mailed in the manner herein provided shall be deemed given,
whether or not the holder receives the notice. Each such
notice of redemption will state the method by which the payment
of the Redemption Price will be made.
(c) Neither the Company 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, Section 24 hereof and other than in
connection with the purchase of Common Stock prior to the
Distribution Date.
Section 24. Exchange.
--------
(a) The Board of directors may, at its option, at
any time after any Person becomes an Acquiring Person, exchange
all or part of the then outstanding and exercisable Rights
(which shall not include Rights that have become void pursuant
to the provisions of Section 7(e) hereof) for Common Stock at
an exchange ratio of one share of Common Stock per Right,
appropriately adjusted to reflect any adjustments in the number
of Rights pursuant to Section 11 (such exchange ratio being
hereinafter referred to as the "Exchange Ratio").
Notwithstanding the foregoing, the Board of Directors shall not
be empowered to effect such exchange at any time after any
Person (other than the Company, any Subsidiary of the Company,
any employee benefit plan or compensation arrangement of the
Company or any such Subsidiary, or any entity holding
securities of the Company to the extent organized, appointed or
established by the Company or any such Subsidiary for or
pursuant to the terms of any such employee benefit plan or
compensation arrangement), together with all Affiliates and
Associates of such Person, becomes the Beneficial Owner of 50%
or more of the Voting Power of the Company.
(b) Immediately upon the action of the Board of
directors ordering the exchange of any Rights pursuant to
paragraph (a) of this Section 24 and without any further action
and without any notice, the right to exercise such Rights shall
terminate and the only right thereafter of a holder of such
Rights shall be to receive that number of shares of Common
Stock equal to the number of such Rights held by such holder
multiplied by the Exchange Ratio. The Company promptly shall
26
give public notice of any such exchange; provided, however,
-------- -------
that the failure to give, or any defect in, such notice shall
not affect the validity of such exchange. The Company promptly
shall mail a notice of any such exchange to all of the holders
of such Rights at their last addresses as they appear upon the
registry books of the Rights Agent. Any notice which is mailed
in the manner herein provided shall be deemed given, whether or
not the holder receives the notice. Each such notice of
exchange will state the method by which the exchange of Common
Stock for Rights will be effected and, in the event of any
partial exchange, the number of
Rights which will be exchanged. Any partial exchange shall be
effected pro rata based on the number of Rights (other than
Rights which have become void pursuant to the provisions of
Section 7(e) hereof) held by each holder of Rights.
(c) In the event that there shall not be sufficient
shares of Common Stock issued but not outstanding or authorized
but unissued to permit any exchange of Rights as contemplated
in accordance with this Section 24, the Company shall take all
such action as may be necessary to authorize additional Common
Shares for issuance upon exchange of the Rights. In the event
the Company shall, after good faith effort, be unable to take
all such action as may be necessary to authorize such
additional shares of Common Stock, the Company shall
substitute, for each share of Common Stock that would otherwise
be issuable upon exchange of a Right, a number of common stock
equivalents (as defined in Section 11(c)) or fraction thereof
such that the current per share market price of one common
stock equivalent multiplied by such number or fraction is equal
to the current per share market price of one share of Common
Stock as of the date of issuance of such common stock
equivalents or fraction thereof.
(d) The Company shall not be required to issue
fractions of Common Stock or to distribute certificates which
evidence fractional shares of Common Stock. In lieu of such
fractional shares of Common Stock, the Company shall pay to the
registered holders of the Right Certificates with regard to
which such fractional shares of Common Stock would otherwise be
issuable an amount in cash equal to the same fraction of the
current market value of a whole share of Common Stock. For the
purposes of this paragraph (e), the current market value of a
whole share of Common Stock shall be the closing price of a
share of Common Stock (as determined pursuant to the second
sentence of Section 11(f)(i) hereof) for the Trading Day
immediately prior to the date of exchange pursuant to this
Section 24.
Section 25. Notice of Proposed Actions.
--------------------------
(a) In case the Company shall propose at any time
after the Distribution Date (a) to pay any dividend payable in
stock of any class to the holders of the Preferred Stock or to
make any other distribution to the holders of the Preferred
Stock (other than a regular periodic cash dividend out of
earnings or retained earnings of the Company), (b) to offer to
the holders of the Preferred Stock rights or warrants to
subscribe for or to purchase any additional shares of Preferred
Stock or shares of stock of any other class or any other
securities, rights or options, (c) to effect any
reclassification of the Preferred Stock (other than a
reclassification involving only the subdivision of outstanding
shares of Preferred Stock), (d) to effect any consolidation or
merger into or with, or to effect any sale or other transfer
(or to permit one or more of its Subsidiaries to effect any
sales or other transfer), in one or more transactions, of 50%
or more of the assets or earning power of the Company and its
Subsidiaries (taken as a whole) to, any other Person, (e) to
effect the liquidation, dissolution or winding up of the
Company, or (f) to declare or pay any dividend on the Common
Stock payable in Common Stock or to effect a subdivision,
combination or consolidation of the Common Stock (by
reclassification or otherwise than by payment of dividends in
Common Stock), then, in each such case, the Company shall give
to each holder of a Right, in accordance with Section 26
hereof, a notice of such proposed action, which shall specify
the record date for the purposes of such stock dividend,
distribution of rights or warrants, or the date on which such
reclassification, consolidation, merger, sale, transfer, liquidation,
27
dissolution, or winding up is to take place and the date of
participation therein by the holders of the Common Stock and/or
Preferred Stock, if any such date is to be fixed. Such notice
shall be so given in the case of any action covered by clauses
(a) or (b) above at least ten days prior to the record date for
determining holders of the Preferred Stock for purposes of such
action, and in the case of any such other action, at least ten
days prior to the date of the taking of such proposed action or
the date of participation therein by the holders of Preferred
Stock, whichever shall be the earlier. The failure to give
notice required by this Section 25 or any defect therein shall
not affect the legality or validity of the action taken by the
Company or the vote upon any such action.
(b) In case a Section 11(b) Event shall occur, then
the Company 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
shall specify the event and the consequences of the event to
holders of Rights under Section 11(b) hereof.
Section 26. Notices. Notices or demands authorized
-------
by this Rights Agreement to be given or made by the Rights
Agent or by the holder of any Right Certificate to or on the
Company shall be sufficiently given or made if sent by first-
class mail, postage prepaid, addressed (until another address
is filed in writing with the Rights Agent) as follows:
AMERCO
0000 Xxxxxxxxx Xxx, Xxxxx 000
Xxxx, Xxxxxx 00000-0000
Attention: General Counsel
Subject to the provisions of Section 21 hereof, any notice or
demand authorized by this Rights Agreement to be given or made
by the Company or by the holder of any Right Certificate to or
on the Rights Agent shall be sufficiently given or made if sent
by first-class mail, postage prepaid, addressed (until another
address is filed in writing with the Company) as follows:
ChaseMellon Shareholder Services, L.L.C.
00 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: [Stock Transfer Department]
Notices or demands authorized by this Rights Agreement to be
given or made by the Company or the Rights Agent to the holder
of any Right Certificate shall be sufficiently given or made if
sent by first-class mail, postage prepaid, addressed to such
holder at the address of such holder as shown on the registry
books of the Company.
Section 27. Supplements and Amendments. The Company
--------------------------
may from time to time supplement or amend this Rights Agreement
without the approval of any holders of Right Certificates in
order (a) to cure any ambiguity, (b) to correct or supplement
any provision contained herein which may be defective or
inconsistent with any other provisions herein, (c) to shorten
or lengthen any time period hereunder (including without
limitation to extend the Final Expiration Date), (d) to
increase or decrease the Purchase Price, or (e) to change or
supplement the provisions hereunder in any manner which the
Company may deem necessary or desirable; provided, however,
-------- -------
that from and after such time as any Person becomes an
Acquiring Person, this Rights Agreement shall not be amended in
any manner which would adversely affect the interests of the
holders of Rights; provided further that this Rights Agreement
may not be supplemented or amended to lengthen pursuant to
clause (c) of this sentence, (A) the time period relating to
28
when the Rights may be redeemed at such time as the Rights are
not then redeemable, or (B) any other time period unless such
lengthening is for the purpose of protecting, enhancing or
clarifying the rights of, and/or the benefits to, the holders
of the Rights; provided further that the Company shall have the
right to make unilaterally any changes necessary to facilitate
the appointment of a successor Rights Agent, which such changes
shall be set forth in a writing by the Company or by the
Company and such successor Rights Agent. Upon the delivery of
a certificate from an appropriate officer of the Company which
states that the proposed supplement or amendment is in
compliance with the terms of this Section 27, the Rights Agent
shall execute such supplement or amendment.
Section 28. Successors. All the covenants and
----------
provisions of this Rights Agreement by or for the benefit of
the Company or the Rights Agent shall bind and inure to the
benefit of their respective successors and assigns hereunder.
Section 29. Benefits of This Agreement. Nothing in
--------------------------
this Rights Agreement shall be construed to give to any Person
other than the Company, the Rights Agent and the registered
holders of the Right Certificates (and, prior to the
Distribution Date, the Common Stock) any legal or equitable
right, remedy or claim under this Rights Agreement; but this
Rights Agreement shall be for the sole and exclusive benefit of
the Company, the Rights Agent and the registered holders of the
Right Certificates (and, prior to the Distribution Date, the
Common Stock).
Section 30. Severability. If any term, provision,
------------
covenant or restriction of this Rights Agreement is held by a
court of competent jurisdiction or other authority to be
invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Rights Agreement
shall remain in full force and effect and shall in no way be
affected, impaired or invalidated. It is the intent of the
parties hereto to enforce the remainder of the terms,
provisions, covenants and restrictions of this Rights Agreement
to the maximum extent permitted by law.
Section 31. Governing Law. This Rights Agreement
-------------
and each Right Certificate issued hereunder shall be deemed to
be a contract made under the laws of the State of Nevada 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; provided,
however, that all provisions regarding the rights, duties and
obligations 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 with such State.
Section 32. Counterparts. This Rights Agreement may
------------
be executed in any number of counterparts and each of such
counterparts shall for all purposes be deemed to be an
original, and all such counterparts shall together constitute
but one and the same instrument.
Section 33. Descriptive Headings. Descriptive
--------------------
headings of the several Sections of this Rights Agreement are
inserted for convenience only and shall not control or affect
the meaning or construction of any of the provisions hereof.
29
IN WITNESS WHEREOF, the parties hereto have caused
this Rights Agreement to be duly executed, all as of the day
and year first above written.
Attest: AMERCO
By_________________________ By_______________________
Name:______________________ Name:____________________
Title:_____________________ Title:___________________
Attest: CHASEMELLON SHAREHOLDER
SERVICES, L.L.C.
By_________________________ By_______________________
Name:______________________ Name:____________________
Title:_____________________ Title:___________________
1
Exhibit A
---------
FORM OF
CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS
OF SERIES C JUNIOR PARTICIPATING PREFERRED STOCK
OF
AMERCO
Pursuant to Section 78.1955 of the General
Corporation Law of the State of Nevada, AMERCO (the "Company"),
a corporation organized and existing under the General
Corporation Law of the State of Nevada, in accordance with the
provisions of Sections 78.035 and 78.195 thereof, DOES HEREBY
CERTIFY:
That pursuant to the authority conferred upon the
Board of Directors by the Restated Articles of Incorporation of
the Company, the said Board of Directors on July 13, 1998,
adopted the following resolution amending and restating that
certain Certificate of Designation of Series C Preferred Stock,
and creating a series of Three Million (3,000,000) shares of
Preferred Stock designated as Series C Junior Participating
Preferred Stock:
RESOLVED, that pursuant to the authority vested in
the Board of directors in accordance with the provisions of its
Restated Articles of Incorporation that certain Certificate of
Designation of Series C Preferred Stock be and it hereby is
amended and restated and that the designation and amount
thereof and the powers, preferences and relative,
participating, optional and other special rights of the shares
of such series, and the qualifications, limitations or
restrictions thereof are as follows:
Section 1. Designation and Amount.
----------------------
There shall be a series of the Preferred Stock which
shall be designated as the "Series C Junior Participating
Preferred Stock," no par value, and the number of shares
constituting such series shall be 3,000,000. Such number of
shares may be increased or decreased by resolution of the Board
of Directors; provided, that no decrease shall reduce the
number of shares of Series C Junior Participating Preferred
Stock to a number less than that of the shares then outstanding
plus the number of shares issuable upon exercise of outstanding
rights, options or warrants or upon conversion of outstanding
securities issued by the Company.
2
Section 2. Dividends and Distributions.
---------------------------
(A) Subject to the rights of the holders of any
shares of any series of preferred stock of the Company ranking
prior and superior to the Series C Junior Participating
Preferred Stock with respect to dividends, the holders of
shares of Series C Junior Participating Preferred Stock, in
preference to the holders of shares of Common Stock, par value
$0.25 per share, and shares of Serial Common Stock, par value
$0.25, of the Company (the "Common Stock"), and of any other
junior 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 any regular quarterly dividend payment date as shall be
established by the Board of Directors (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 of a share or fraction of a share of Series
C Junior Participating Preferred Stock, in an amount per share
(rounded to the nearest cent) equal to the greater of (a) $1.00
or (b) subject to the provision for adjustment hereinafter set
forth, 100 times the aggregate per share amount of all cash
dividends, and 100 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 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 Series C Junior Participating Preferred
Stock. In the event the Company shall at any time after July
13, 1998 (the "Rights Declaration Date") 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 Series C Junior Participating Preferred Stock were entitled
immediately prior to such event under clause (b) of 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) The Company shall declare a dividend or
distribution on the Series C Preferred Stock as provided in
paragraph (A) of this Section immediately after it declares a
dividend or distribution on the Common Stock (other than a
dividend payable in shares of Common Stock); provided that, 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 $1.00 per share on the
Series C Junior Participating Preferred Stock shall
nevertheless be payable on such subsequent Quarterly Dividend
Payment Date.
(C) Dividends shall begin to accrue and be
cumulative on outstanding shares of Series C Junior
Participating Preferred Stock from the Quarterly Dividend
Payment Date next preceding the date of issue of such shares,
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 Series C
Junior Participating 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.
Dividends paid on the shares of Series C Junior Participating
Preferred Stock in an amount less than the total amount of such
dividends at the time accrued and payable on such shares shall
be allocated pro rata on a share-by-share basis among all such
3
shares at the time outstanding. The Board of Directors may, in
accordance with applicable law, fix a record date for the
determination of holders of shares of Series C Junior
Participating Preferred Stock entitled to receive payment of a
dividend or distribution declared thereon, which record date
shall be not more than such number of days prior to the date
fixed for the payment thereof as may be allowed by applicable
law.
Section 3. Voting Rights.
-------------
The holders of shares of Series C Junior
Participating Preferred Stock shall have the following voting
rights:
(A) Each share of Series C Junior Participating
Preferred Stock shall entitle the holder thereof to 100 votes
on all matters submitted to a vote of the stockholders of the
Company. In the event the Company shall at any time after the
Rights Declaration Date 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 number of votes to which holders of shares
of Series C Junior Participating 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, in the
Company's Restated Articles of Incorporation or by law, the
holders of shares of Series C Junior Participating Preferred
Stock, the holders of shares of Common Stock, and the holders
of shares of any other capital stock of the Company having
general voting rights, shall vote together as one class on all
matters submitted to a vote of stockholders of the Company.
(C) Except as otherwise set forth herein or in the
Company's Restated Articles of Incorporation, and except as
otherwise provided by law, holders of Series C Junior
Participating 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 taking any corporate action.
Section 4. Certain Restrictions.
--------------------
(A) Whenever dividends or distributions payable on
the Series C Junior Participating Preferred Stock as provided
in Section 2 are in arrears, thereafter and until all accrued
and unpaid dividends and distributions, whether or not
declared, on shares of Series C Junior Participating Preferred
Stock outstanding shall have been paid in full, the Company
shall not:
(i) declare or pay dividends on, make any other
distributions on, or redeem or purchase or otherwise
acquire for consideration any shares of stock ranking
junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series C Junior
Participating Preferred Stock;
(ii) declare or pay dividends on or make any
other distributions on any shares of stock ranking on a
parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series C Junior
Participating Preferred Stock, except dividends paid
ratably on the Series C Junior Participating Preferred
4
Stock and all such parity stock on which dividends are
payable or in arrears in proportion to the total amounts
to which the holders of all such shares are then entitled;
(iii) except as permitted in Section
4(A)(iv) below, redeem or purchase or otherwise acquire
for consideration shares of any stock ranking on a parity
(either as to dividends or upon liquidation, dissolution
or winding up) with the Series C Junior Participating
Preferred Stock, provided that the Company may at any time
redeem, purchase or otherwise acquire shares of any such
parity stock in exchange for shares of any stock of the
Company ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the Series C
Junior Participating Preferred Stock; and
(iv) purchase or otherwise acquire for
consideration any shares of Series C Junior Participating
Preferred Stock, or any shares of stock ranking on a
parity with the Series C Junior Participating Preferred
Stock, except in accordance with a purchase offer made in
writing or by publication (as determined by the Board of
Directors) to all holders of such shares upon such terms
as the Board of Directors, after consideration of the
respective annual dividend rates and other relative rights
and preferences of the respective series and classes, shall
determine in good faith will result in fair and equitable treatment
among the respective series or classes.
(B) The Company shall not permit any subsidiary of
the Company to purchase or otherwise acquire for consideration
any shares of stock of the Company unless the Company could,
under paragraph (A) of this Section 4, purchase or otherwise
acquire such shares at such time and in such manner.
Section 5. Reacquired Shares.
-----------------
Any shares of Series C Junior Participating Preferred
Stock purchased or otherwise acquired by the Company in any
manner whatsoever shall be retired and canceled promptly after
the acquisition thereof. The Company shall cause all such
shares upon their cancellation to be authorized but unissued
shares of Preferred Stock which may be reissued as part of a
new series of Preferred Stock, subject to the conditions and
restrictions on issuance set forth herein.
Section 6. Liquidation, Dissolution or Winding Up.
--------------------------------------
(A) Subject to the rights of the holders of any
shares of any series of Preferred Stock of the Company ranking
prior and superior to the Series C Junior Participating
Preferred Stock with respect to liquidation, upon any
liquidation (voluntary or otherwise), dissolution or winding up
of the Company, no distribution shall be made to the holders of
shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series C Junior
Participating Preferred Stock unless, prior thereto, the
holders of shares of Series C Junior Participating Preferred
Stock shall have received $100.00 per share, plus an amount
equal to accrued and unpaid dividends and distributions
thereon, whether or not declared, to the date of such payment
(the "Series C Liquidation Preference"). Following the payment
of the full amount of the Series C Liquidation Preference, no
additional distributions shall be made to the holders of shares
of Series C Junior Participating Preferred Stock, unless, prior
thereto, the holders of shares of Common Stock shall have
received an amount per share (the "Common Adjustment") equal to
the quotient obtained by dividing (i) the Series C Liquidation
Preference by (ii) 100 (as appropriately adjusted as set forth
in subparagraph C below to reflect such events as stock
dividends, and subdivisions, combinations and consolidations
with respect to the Common Stock) (such number in clause (ii)
being referred to as the "Adjustment Number"). Following the
payment of the full amount of the Series C Liquidation
Preference and the Common Adjustment in respect of all
5
outstanding shares of Series C Junior Participating Preferred
Stock and Common Stock, respectively, holders of Series C
Junior Participating Preferred Stock and holders of shares of
Common Stock shall receive their ratable and proportionate
share of the remaining assets to be distributed in the ratio of
the Adjustment Number to 1 with respect to such Series C Junior
Participating Preferred Stock and Common Stock, on a per share
basis, respectively.
(B) In the event there are not sufficient assets
available to permit payment in full of the Series C Liquidation
Preference and the liquidation preferences of all other series
of preferred stock, if any, which rank on a parity with the
Series C Junior Participating Preferred Stock, then such
remaining assets shall be distributed ratably to the holders of
such parity shares in proportion to their respective
liquidation preferences. In
the event there are not sufficient assets available to permit
payment in full of the Common Adjustment, then such remaining
assets shall be distributed ratably to the holders of Common
Stock.
(C) In the event the Company shall at any time after
the Rights Declaration Date declare or pay any dividend on
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 Adjustment Number in effect immediately
prior to such event shall be adjusted by multiplying such
Adjustment Number by a fraction the numerator of which is the
number of shares of Common Stock outstanding immediately after
such event and the denominator of which is the number of shares
of Common Stock that were outstanding immediately prior to such
event.
Section 7. Consolidation, Merger, etc.
--------------------------
In case the Company shall enter into any
consolidation, merger, combination or other transaction in
which the shares of Common Stock are exchanged for or changed
into other stock or securities, cash and/or any other property,
then in any such case the shares of Series C Junior
Participating Preferred Stock shall at the same time be
similarly exchanged or changed in an amount per share (subject
to the provision for adjustment hereinafter set forth) equal to
100 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 Company shall at any
time after the Rights Declaration Date declare or pay any
dividend on 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 Series C Junior Participating 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 are
outstanding immediately prior to such event.
Section 8. Redemption.
----------
The shares of Series C Junior Participating Preferred
Stock shall not be redeemable.
Section 9. Ranking.
-------
The Series C Junior Participating Preferred Stock
shall rank junior to all other series of the Company's
Preferred Stock as to the payment of dividends and the
6
distribution of assets, unless the terms of any such series
shall provide otherwise.
Section 10. Fractional Shares.
-----------------
Series C Junior Participating Preferred Stock may be
issued in fractions of a share which shall entitle the holder,
in proportion to such holder's fractional shares, to exercise
voting rights, receive dividends, participate in distributions
and to have the benefit of all other rights of holders of
Series C Junior Participating Preferred Stock."
Pursuant to Section 78.1955(4) of the General
Corporation Law of the State of Nevada, (a) attached is the
original designation, (b) no shares of Series C Junior
Participating Preferred Stock have been issued, and (c) set
forth above is the amended and restated designation of the
series, the number of the series, and the voting powers,
designations, preferences, limitations, restrictions and
relative rights of the series.
IN WITNESS WHEREOF, we have executed and subscribed
this Certificate and do affirm the foregoing as true under the
penalties of perjury this ____th day of _____, 19__.
By: /S/ XXXXXX X. XXXXX
--------------------
Name: Xxxxxx X. Xxxxx
Title: President
Attest
By: /S/ XXXX X. XXXXXXXXXXX
-------------------------
Name: Xxxx X. Xxxxxxxxxxx
Title: Secretary
State of Arizona )
) SS
County of Maricopa )
This instrument was acknowledged before me on
__________ (date) by _______________ and _______________, as
President and Secretary of AMERCO.
------------------------
Notary
1
Exhibit B
---------
[Form of Right Certificate]
Certificate No. R-___________ ____ Rights
NOT EXERCISABLE AFTER THE EXPIRATION DATE.
AT THE OPTION OF THE COMPANY, THE RIGHTS
ARE SUBJECT TO REDEMPTION AT $0.01 PER
RIGHT OR EXCHANGE FOR COMMON STOCK, UNDER THE
CIRCUMSTANCES AND ON THE TERMS SET FORTH
IN THE RIGHTS AGREEMENT. UNDER
CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED
BY AN ACQUIRING PERSON OR AN ASSOCIATE
OR AFFILIATE OF AN ACQUIRING PERSON AND ANY
SUBSEQUENT HOLDER OF SUCH RIGHTS MAY
BECOME NULL AND VOID. [THE RIGHTS
REPRESENTED BY THIS RIGHT CERTIFICATE WERE ISSUED TO A
PERSON WHO WAS AN ACQUIRING PERSON OR AN
AFFILIATE OR AN ASSOCIATE OF AN
ACQUIRING PERSON. THIS RIGHT CERTIFICATE AND THE
RIGHTS REPRESENTED HEREBY ARE VOID IN
THE CIRCUMSTANCES SPECIFIED IN SECTION
7(e) OF THE RIGHTS AGREEMENT.] *
Right Certificate
AMERCO
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 August 7,
1998 (the "Rights Agreement") between AMERCO, a Nevada corporation (the
"Company"), and CHASEMELLON SHAREHOLDER SERVICES, L.L.C., a New Jersey limited
liability company (the "Rights Agent"), to purchase from the Company at any
time after the Distribution Date (as such term is defined in the Rights
Agreement) and prior to 5:00 p.m. Reno, Nevada time on the Expiration Date, as
that term is defined in the Rights Agreement, at the stockholder
services office (or such office designated for such purpose) of the
Rights Agent, or its successor as Rights Agent, one one-hundredth of a
fully paid, nonassessable share of the Series C Junior Participating Preferred
Stock, no par value per share ("Preferred Stock"), of the Company, at a
purchase price of $132.00 per one one-hundredth of a share (the
"Purchase Price") upon presentation and surrender of this Right
Certificate with the Form of Election to Purchase duly
executed. The number of Rights evidenced by this Right
Certificate (and the number of shares which may be purchased
upon exercise of each Right) and the Purchase Price set forth
above, are the number and Purchase Price as of ______________
based on the shares of Preferred Stock of the Company as constituted
at such date.
The Purchase Price and the number of shares of
Preferred Stock which may be purchased upon the exercise of
each of the Rights evidenced by this Right Certificate are
subject to modification and adjustment upon the happening of
certain events as provided in the Rights Agreement.
_______________________________
* The portion of the legend in brackets shall be inserted
only if applicable.
2
This Right Certificate is subject to all of the
terms, provisions and conditions of the Rights Agreement, which
terms, provisions and conditions are hereby incorporated herein
by reference and made a part hereof and to which Rights
Agreement reference is hereby made for a full description of
the rights, limitations of rights, obligations, duties and
immunities hereunder of the Rights Agent, the Company and the
holders of the Right Certificates. Copies of the Rights Agreement
are on file at the Company and the above-mentioned office of the Rights
Agent and are also available upon written request to the
Company.
This Right Certificate, with or without other Right
Certificates, upon surrender at the stockholder services office
(or such office designated for such purpose) 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 shares of
Preferred Stock as the Rights evidenced by the Right
Certificate or Right Certificates surrendered shall have
entitled such holder to purchase. If this Right Certificate
shall be exercised in part, the holder shall be entitled to
receive, upon surrender hereof, another Right Certificate or
Right Certificates for the number of whole Rights not
exercised.
Subject to the provisions of the Rights Agreement,
the Rights evidenced by this Right Certificate may be redeemed
by the Company at its option at a redemption price of $0.01 per
Right on or prior to the Stock Acquisition Date (as defined in
the Rights Agreement). In addition, subject to the provisions
of the Rights Agreement, each Right evidenced by this
Certificate may be exchanged by the Company at its option for
one share of Common Stock following the Stock Acquisition Date
and prior to the time an Acquiring Person (as defined in the
Rights Agreement) owns 50% or more of the Voting Power, as that
term is defined in the Rights Agreement, of the Company.
No fractional shares of Preferred Stock will be
issued upon the exercise of any Rights evidenced hereby (other
than fractions which are integral multiples of one one-
hundredth of a share of Preferred Stock, which may, at the
election of the Company, be evidenced by depositary receipts).
In lieu of fractions of a share, 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 shares of Preferred Stock or of any other securities
of the Company which may at any time be issuable on the
exercise hereof, nor shall anything contained in the Rights
Agreement or herein be construed to confer upon the holder
hereof, as such, any of the rights of a stockholder of the
Company or any right to vote for the election of directors or
upon any matter submitted to stockholders at any meeting
thereof, or to give or withhold consent to any corporate
action, or to receive notice of meetings or other actions
affecting stockholders (except as provided in the Rights
Agreement), or to receive dividends or subscription rights, or
otherwise, until the 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.
3
WITNESS the facsimile signature of the proper
officers of the Company and its corporate seal. Dated as of
________________.
Attest: AMERCO
By_________________________ By________________________
Name:______________________ Name:______________________
Title:_____________________ Title:_____________________
Countersigned:
CHASEMELLON SHAREHOLDER
SERVICES, L.L.C.
By:________________________
Authorized signature
4
[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 Company, with
full power of substitution.
Dated:__________________
_____________________________
Signature
(Signature must conform in all
respects to name of holder as
specified on the face of this
Right Certificate)
Signature Guaranteed:
Signatures must be guaranteed by a member or a
participant in the Securities Transfer Agent Medallion Program,
the New York Stock Exchange Medallion Signature Program or the
Stock Exchange Medallion Program.
5
CERTIFICATE
-----------
The undersigned hereby certifies by checking the
appropriate boxes that:
(1) this Right Certificate [ ] is [ ] is not being
sold, assigned and transferred by or on behalf of a Person who
is or was an Acquiring Person or an Affiliate or Associate of
any such Acquiring Person (as such terms are defined pursuant
to the Rights Agreement);
(2) after due inquiry and to the best knowledge of
the undersigned, it [ ] did [ ] did not acquire the Rights
evidenced by this Right Certificate from any Person who is, was
or subsequently became an Acquiring Person or an Affiliate or
Associate of an Acquiring Person.
Dated:_________________ __________________________________
Signature
(Signature must conform in all
respects to name of holder as
specified on the face of this
Right Certificate)
6
FORM OF ELECTION TO PURCHASE
----------------------------
(To be executed if holder desires to
exercise the Right Certificate.)
To AMERCO:
The undersigned hereby irrevocably elects to
exercise ____________ Rights represented by this Right Certificate to
purchase the shares of Preferred Stock issuable upon the
exercise of such Rights and requests that certificates for
such shares be issued in the name of:
Name:_____________________
Address:__________________
_____________________
Social security
or taxpayer identification
number:__________________
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:
Name:_____________________
Address:__________________
_____________________
Social security
or taxpayer identification
number:__________________
Dated:__________________
_______________________________
Signature
(Signature must conform in all
respects to name of holder as
specified on the face of this
Right Certificate)
Signature Guaranteed:
Signatures must be guaranteed by a member or a
participant in the Securities Transfer Agent Medallion Program,
the New York Stock Exchange Medallion Signature Program or the
Stock Exchange Medallion Program.
7
CERTIFICATE
-----------
The undersigned hereby certifies by checking the
appropriate boxes that:
(1) the Rights evidenced by this Right Certificate [ ] are
[ ] are not being exercised by or on behalf of a Person
who is or was an Acquiring Person or an Affiliate or Associate
of any such Acquiring Person (as such terms are defined
pursuant to the Rights Agreement);
(2) this Rights Certificate [ ] is [ ] is not being
sold, assigned and transferred by or on behalf of a Person who
is or was an Acquiring Person or an Affiliate or Associate of
any such Acquiring Person (as such terms are defined pursuant
to the Rights Agreement);
(3) after due inquiry and to the best knowledge of
the undersigned, it [ ] did [ ] did not acquire the Rights
evidenced by this Right Certificate from any Person who is, was
or became an Acquiring Person or an Affiliate or Associate of
an Acquiring Person.
Dated:_______________
--------------------------------
Signature
(Signature must conform in all
respects to name of holder as
specified on the face of this
Right Certificate)
NOTICE
------
The signature in the foregoing Forms of Assignment
and Election 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 Company 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 defined in the
Rights Agreement) and such Assignment or Election to Purchase
will not be honored as described in Section 7(e) of the
Rights Agreement.
1
Exhibit C
---------
AMERCO
Summary of Preferred Stock
Purchase Rights
On July 13, 1998, the Board of Directors of AMERCO
(the "Company") declared a dividend of one preferred share
purchase right (a "Right") for each outstanding share of Common
Stock, par value $0.25 per share, and Serial Common Stock, par
value $0.25 per share, of the Company (collectively, the
"Common Stock"). The dividend distribution is payable on August
17, 1998 (the "Record Date") to the stockholders of record on
that date. Each Right entitles the registered holder to
purchase from the Company one one-hundredth of a share of
Series C Junior Participating Preferred Stock, no par value per
share (the "Preferred Stock") of the Company at a price of
$132.00 per one one-hundredth of a share of Preferred Stock
(the "Purchase Price"), subject to adjustment. The description
and terms of the Rights are set forth in a Rights Agreement
dated as of August 7, 1998, as the same may be amended from
time to time (the "Rights Agreement"), between the Company and
CHASEMELLON SHAREHOLDER SERVICES, L.L.C., as Rights Agent (the
"Rights Agent").
Until the earlier to occur of (i) the close of
business on the tenth business day following the date of public
announcement or the date on which the Company first has notice
or determines that a person or group of affiliated or
associated persons (other than the Company, any subsidiary of
the Company or any employee benefit plan of the Company, or
certain "grandfathered persons" described below) (an "Acquiring
Person") has acquired, or obtained the right to acquire, 10% or
more of the outstanding shares of voting stock of the Company
without the prior express written consent of the Company
executed on behalf of the Company by a duly authorized officer
of the Company following express approval by action of at least
a majority of the members of the Board of Directors then in
office (the "Stock Acquisition Date") or (ii) the close of
business on the tenth business day (or such later date as may
be determined by action of the Board of Directors but not later
than the Stock Acquisition Date) following the commencement of
a tender offer or exchange offer, without the prior written
consent of the Company, by a person (other than the Company,
any subsidiary of the Company or an employee benefit plan of
the Company) which, upon consummation, would result in such
party's control of 10% or more of the Company's voting stock
(the earlier of the dates in clause (i) or (ii) above being
called the "Distribution Date"), the Rights will be evidenced,
with respect to any of the Common Stock certificates
outstanding as of the Record Date, by such Common Stock
certificates. A "grandfathered person" is a person who, as of
August 7, 1998, together with all affiliates and associates,
was the beneficial owner of more than 10% of the outstanding
shares of voting stock of the Company; provided, that such
person together with all affiliates and associates does not
increase its or their percentage ownership of the outstanding
shares of voting stock of the Company by more than one (1) percentage point
without the prior express written consent of the Company.
The Rights Agreement provides that, until the
Distribution Date (or earlier redemption or expiration of the
Rights), the Rights will be transferred with and only with the
Company's Common Stock. Until the Distribution Date (or
earlier redemption, exchange or expiration of the Rights), new
Common Stock certificates issued after the Record Date upon
transfer or new issuances of Common Stock will contain a
notation incorporating the Rights Agreement by reference.
Until the Distribution Date (or earlier redemption, exchange or
expiration of the Rights), the surrender for transfer of any
certificates for shares of Common Stock outstanding as of the
Record Date, even without such notation or a copy of this
Summary of Rights, will also constitute the transfer of the
2
Rights associated with the Common Stock 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 Stock as of the close of business on the Distribution
Date and such separate certificates alone will then evidence
the Rights.
The Rights are not exercisable until the Distribution
Date. The Rights will expire, if not previously exercised, on
August 7, 2008 (the "Final Expiration Date"), unless the Final
Expiration Date is extended or unless the Rights are earlier
redeemed or exchanged by the Company.
The Purchase Price payable, and the number of shares
of Preferred Stock or other securities or property issuable,
upon exercise of the Rights are subject to adjustment from time
to time to prevent dilution (i) in the event of a stock
dividend on, or a subdivision, combination or reclassification
of the Preferred Stock, (ii) upon the grant to holders of the
Preferred Stock of certain rights or warrants to subscribe for
or purchase Preferred Stock at a price, or securities
convertible into Preferred Stock with a conversion price, less
than the then-current market price of the Preferred Stock or
(iii) upon the distribution to holders of the Preferred Stock
of evidences of indebtedness or assets (excluding regular
periodic cash dividends or dividends payable in Preferred
Stock) or of subscription rights or warrants (other than those
referred to above).
The number of outstanding Rights and the number of
one one-hundredths of a share of Preferred Stock issuable upon
exercise of each Right are also subject to adjustment in the
event of a stock split of the Common Stock or a stock dividend
on the Common Stock payable in shares of Common Stock or
subdivisions, consolidations or combinations of the Common
Stock occurring, in any such case, prior to the Distribution
Date.
Shares of Preferred Stock purchasable upon exercise
of the Rights will not be redeemable and junior to any other
series of preferred stock the Company may issue (unless
otherwise provided in the terms of such stock). Each share of
Preferred Stock will have a preferential dividend in an amount
equal to 100 times any dividend declared on each share of
Common Stock. In the event of liquidation, the holders of the
Preferred Stock will receive a preferred liquidation payment of
equal to the greater of $100 and 100 times the payment made per
share of Common Stock. Each share of Preferred Stock will have
100 votes, voting together with the Common Stock. In the event
of any merger, consolidation or other transaction in which
shares of Common Stock are converted or exchanged, each share
of Preferred Stock will be entitled to receive 100 times the
amount and type of consideration received per share of Common Stock.
The rights of the Preferred Stock as to dividends, liquidation and voting,
and in the event of mergers and consolidations, are protected by
customary antidilution provisions.
Because of the nature of the Preferred Stock's
dividend, liquidation and voting rights, the value of the one
one-hundredth interest in a share of Preferred Stock purchasable
upon exercise of each Right should approximate the value of one
share of Common Stock.
If any person or group (other than the Company, any
subsidiary of the Company or any employee benefit plan of the
Company or certain grandfathered persons) acquires 10% or more
of the Company's outstanding voting stock without the prior
written consent of the Board of Directors, each Right, except
those held by such persons, would entitle each holder of a Right
to acquire such number of shares of the Company's Common Stock
as shall equal the result obtained by multiplying the then
current Purchase Price by the number of one one-hundredths of a
share of Preferred Stock for which a Right is then exercisable
and dividing that product by 50% of the then current per-share
market price of Company Common Stock.
3
If any person or group (other than the Company, any
subsidiary of the Company or any employee benefit plan of the
Company or certain grandfathered persons) acquires more than 10%
but less than 50% of the outstanding Company Common Stock
without prior written consent of the Board of Directors, each
Right, except those held by such persons, may be exchanged by
the Board of Directors for one share of Company Common Stock.
If the Company were acquired in a merger or other
business combination transaction where the Company is not the
surviving corporation or where Company Common Stock is exchanged
or changed or 50% or more of the Company's assets or earnings
power is sold in one or several transactions without the prior
written consent of the Board of Directors, each Right would
entitle the holders thereof (except for the Acquiring Person) to
receive such number of shares of the acquiring company's common
stock as shall be equal to the result obtained by multiplying
the then current Purchase Price by the number one one-hundredths
of a share of Preferred Stock for which a Right is then
exercisable and dividing that product by 50% of the then current
market price per share of the common stock of the acquiring
company on the date of such merger or other business combination
transaction.
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
shares of Preferred Stock will be issued (other than fractions
which are integral multiples of one one-hundredth of a share of
Preferred Stock, which may, at the election of the Company, be
evidenced by depositary receipts), and in lieu thereof an
adjustment in cash will be made based on the market price of the
Preferred Stock on the last trading day prior to the date of
exercise.
At any time prior to the time an Acquiring Person
becomes such, the Board of directors may redeem the Rights in
whole, but not in part, at a price of $.01 per Right (the
"Redemption Price"). The redemption of the Rights may be made
effective at such time, on such basis and with such conditions
as the Board of Directors in its sole discretion may establish.
Immediately upon any redemption of the Rights, the right to
exercise the Rights will terminate and the only right of the
holders of Rights will be to receive the Redemption Price.
The terms of the Rights may be amended by the Board
of Directors of the Company without the consent of the holders
of the Rights, except that from and after such time as any
person or group of affiliated or associated persons becomes an
Acquiring Person no such amendment may adversely affect the
interests of the holders of the Rights.
Until a Right is exercised, the holder thereof, as
such, will have no rights as a stockholder of the Company,
including, without limitation, the right to vote or to receive
dividends.
A copy of the Rights Agreement has been filed with
the Securities and Exchange Commission as an Exhibit to a
Registration Statement on Form 8-A dated August 7, 1998. A
copy of the Rights Agreement is available free of charge from
the Company. This summary description of the Rights does not
purport to be complete and is qualified in its entirety by
reference to the Rights Agreement, as the same may be amended
from time to time, which is hereby incorporated herein by
reference.
