Exercise of Rights; Exercise Price; Expiration Date of Rights. (a) At any time after the Exercisability Date and prior to the earlier of (i) the Close of Business on February 7, 2006 (the "Final Expiration Date"), or (ii) the time at which the Rights are redeemed as provided in Section 23 hereof (the "Redemption Date") (the earlier of (i) and (ii) being the "Expiration Date"), the registered holder of any Rights Certificate may, subject to the provisions of Section 7(e) hereof, exercise the Rights evidenced thereby in whole or in part upon surrender of the Rights Certificate, with the form of election to purchase and the certificate on the reverse side thereof duly executed, to the Rights Agent at the office of the Rights Agent designated for such purpose, together with payment of the aggregate Exercise Price (as hereinafter defined) for the number of shares of Common Stock (or, following a Triggering Event, other securities, cash or other assets, as the case may be) for which such surrendered Rights are then exercisable. (b) The purchase price for each one tenth of one share of Common Stock upon exercise of the Rights initially shall be $80.00, subject to adjustment from time to time as provided in the next sentence and in Sections 11 and 13(a) hereof (such purchase price, as so adjusted, being the "Exercise Price"), and shall be payable in accordance with paragraph (c) below. Anything in this Agreement to the contrary notwithstanding, in the event that, at any time after the date of this Agreement and prior to the Exercisability Date, the Company shall (i) declare a dividend on the Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock, (iii) combine the outstanding Common Stock into a smaller number of shares, or (iv) issue any shares of its capital stock in a reclassification of the Common Stock; then, in any such case, each share of Common Stock outstanding following such dividend, subdivision, combination or reclassification shall continue to have a Right associated therewith, and the Exercise Price following any such event shall be proportionately adjusted to equal the result obtained by multiplying the Exercise Price immediately prior to such event by a fraction, the numerator of which shall be the total number of shares of Common Stock outstanding immediately prior to the occurrence of the event and the denominator of which shall be the total number of shares of Common Stock outstanding immediately following the occurrence of such event. The adjustment provided for in the preceding sentence shall be made successively whenever such a dividend is declared or such a subdivision, combination or reclassification is effected. (c) Upon receipt of a Rights Certificate representing exercisable Rights, with the form of election to purchase and the certificate duly executed, accompanied by payment in the manner described below, with respect to each Right so exercised, of the Exercise Price for the shares of Common Stock (or, following a Triggering Event, other securities, cash or other assets, as the case may be) to be purchased thereby, and of an amount equal to any applicable transfer tax required to be paid by the holder in accordance with Section 6 hereof or evidence satisfactory to the Company of payment of such tax), the Rights Agent shall, subject to Section 20(j) hereof, thereupon promptly: (i) requisition from the transfer agent for the Common Stock certificates for such number of shares of Common Stock as are to be purchased, and the Company will direct the transfer agent to comply with such request; (ii) requisition from the Company the amount of cash, if any, to be paid in lieu of fractional shares in accordance with Section 14 hereof; (iii) after receipt of such Common Stock certificates, cause the same to be delivered to or upon the order of the registered holder of such Rights Certificate, registered in such name or names as may be designated by such holder; and (iv) after receipt of such cash, if any, deliver the same to or upon the order of the registered holder of such Rights Certificate. In the event that the Company is obligated to issue other securities of the Company, pay cash and/or distribute other property pursuant to Section 11(a) hereof, the Company will make all arrangements necessary so that such other securities, cash and/or other property are available for distribution by the Rights Agent, if and when appropriate. The payment of the Exercise Price (as such amount may be reduced pursuant to Section 11(a)(iii) hereof) may be made in cash or by certified or bank check or bank draft payable to the order of the Company. (d) In the event of an exercise of the Rights by a holder pursuant to Section 11(a)(ii) hereof, the Rights Agent shall return such Rights Certificate to the registered holder thereof after imprinting, stamping, or otherwise indicating thereon that the rights represented by such Rights Certificate no longer include the rights provided by Section 11(a)(ii) of the Rights Agreement. In addition, in the event that the registered holder of any Rights Certificate shall exercise less than all the Rights evidenced thereby, a new Rights Certificate evidencing the Rights remaining unexercised (and, if some of the Rights exercised were exercised pursuant to Section 11(a)(ii), indicating by imprint, stamp or otherwise the number of Rights remaining which continue to include rights provided by Section 11(a)(ii)) shall be issued by the Rights Agent and delivered to, or upon the order of, the registered holder of such Rights Certificate, registered in such name or names as may be designated by such holder, subject to the provisions of Section 14 hereof. (e) Notwithstanding anything in this Agreement to the contrary, from and after the first occurrence of a Section 11(a)(ii) Event, any Rights beneficially owned by any of the Persons described below 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: (i) an Acquiring Person or an Affiliate or Associate of an Acquiring Person; (ii) a transferee of an Acquiring Person (or of any such Affiliate or Associate) which becomes a transferee after the Acquiring Person becomes such; or (iii) a transferee of an Acquiring Person (or of any such Affiliate or Associate) 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 Affiliate or Associate) to holders of equity interests therein, or to any Person with whom such Acquiring Person (or Affiliate or Associate) has any continuing agreement, arrangement or understanding regarding the transferred Rights, shares of Common Stock, or the Company, or (B) a transfer which a majority of the Board 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). The Company shall use all reasonable efforts to ensure that the provisions of this Section 7(e) and Section 4(b) hereof are complied with, but shall have no liability to any holder of Rights or any other Person as a result of its failure to make any determination under this Section 7(e) or such Section 4(b) with respect to an Acquiring Person or its Affiliates, Associates or transferees. (f) Notwithstanding anything in this Agreement or any Rights Certificate 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 by such registered holder unless such registered holder shall have (i) completed and executed the certificate following the form of election to purchase set forth on the reverse side of the Rights Certificate surrendered for such exercise, and (ii) provided such additional evidence of the identity of the Beneficial Owner or former Beneficial Owner (or Affiliates or Associates thereof) of the Rights represented by such Rights Certificate as the Company shall reasonably request.
Appears in 2 contracts
Sources: Rights Agreement (Coventry Health Care Inc), Rights Agreement (Coventry Health Care Inc)
Exercise of Rights; Exercise Price; Expiration Date of Rights. (a) At any time after the Exercisability Date and prior Subject to the earlier of (iSection 7(e) the Close of Business on February 7, 2006 (the "Final Expiration Date"), or (ii) the time at which the Rights are redeemed as provided in Section 23 hereof (the "Redemption Date") (the earlier of (i) and (ii) being the "Expiration Date")hereof, the registered holder of any Rights Certificate may, subject to the provisions of Section 7(e) hereof, may exercise the Rights evidenced thereby (except as otherwise provided herein including, without limitation, in the restrictions on exercisability set forth in Sections 9(c), 11(a)(iii) and 23(a) hereof) in whole or in part at any time after the Distribution Date upon surrender of the Rights Certificate, with the form of election to purchase and the certificate on the reverse side thereof properly completed and duly executed, to the Rights Agent at the office of the Rights Agent designated for such purpose, together with payment of the aggregate Exercise Price (as hereinafter defined) for the number each one one-thousandth of shares a share of Common Preferred Stock (or, following a Triggering Eventor Common Stock, other securities, cash or other assets, as the case may be) for as to which such surrendered the Rights are then exercisableexercised prior to the earliest of (i) the Close of Business on May 6, 2022 or such later date as may be established by the Board prior to the expiration of the Rights as long as the extension is submitted to the stockholders of the Company for ratification at the next annual meeting of stockholders succeeding such extension (the “Final Expiration Date”); (ii) the time at which the Rights are redeemed pursuant to Section 23 hereof (the “Redemption Date”); (iii) the time at which the Rights are exchanged pursuant to Section 24 hereof (the “Exchange Date”); (iv) the closing of any merger or other acquisition transaction involving the Company pursuant to an agreement of the type described in Section 13(f) at which time the Rights are terminated; (v) the Close of Business on the first day after the Company’s 2019 annual meeting of stockholders, if Stockholder Approval has not been obtained on or prior to the Close of Business on the first day after the Company’s 2019 annual meeting of stockholders (the “Early Expiration Date”); (vi) the Close of Business on the effective date of the repeal of Section 382 of the Code if the Board determines that this Agreement is no longer necessary or desirable for the preservation of Tax Benefits; and (vii) the Close of Business on the first day of a taxable year of the Company to which the Board determines that no Tax Benefits are available to be carried forward (the earliest of (i) — (vii) being herein referred to as the “Expiration Date”).
(b) Each Right shall entitle the registered holder thereof to purchase one one-thousandth of a share of Preferred Stock. The purchase price Exercise Price for each one tenth one-thousandth of one a share of Common Preferred Stock upon pursuant to the exercise of the Rights initially a Right shall be initially $80.005.22, and shall be subject to adjustment from time to time as provided in the next sentence and in Sections 11 and 13(a) 13 hereof (such purchase price, as so adjusted, being and payable in lawful money of the "Exercise Price"), and shall be payable United States in accordance with paragraph (c) below. Anything in this Agreement to the contrary notwithstanding, in the event that, at any time after the date of this Agreement and prior to the Exercisability Date, the Company shall (i) declare a dividend on the Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock, (iii) combine the outstanding Common Stock into a smaller number of shares, or (iv) issue any shares of its capital stock in a reclassification of the Common Stock; then, in any such case, each share of Common Stock outstanding following such dividend, subdivision, combination or reclassification shall continue to have a Right associated therewith, and the Exercise Price following any such event shall be proportionately adjusted to equal the result obtained by multiplying the Exercise Price immediately prior to such event by a fraction, the numerator of which shall be the total number of shares of Common Stock outstanding immediately prior to the occurrence of the event and the denominator of which shall be the total number of shares of Common Stock outstanding immediately following the occurrence of such event. The adjustment provided for in the preceding sentence shall be made successively whenever such a dividend is declared or such a subdivision, combination or reclassification is effectedSection 7.
(c) Upon receipt of a Rights Certificate representing exercisable Rights, with the form of election to purchase and the certificate properly completed and duly executed, accompanied by payment in the manner described belowpayment, with respect to each Right so exercised, of the Exercise Price for the shares per one one-thousandth of Common a share of Preferred Stock (or, following a Triggering Eventor Common Stock, other securities, cash or other assets, as the case may be) to be purchased thereby, and of an amount equal to any applicable transfer tax required to be paid by the holder in accordance with Section 6 hereof or evidence satisfactory to the Company of payment of such tax)governmental charge, then the Rights Agent shall, subject to Section 20(j18(j) hereof, thereupon promptly:
promptly (i) (A) requisition from the any transfer agent for of the Common Preferred Stock certificates for representing such number of one one-thousandths of a share of Preferred Stock (or fractions of shares that are integral multiples of one one-thousandth of a share of Preferred Stock) as are to be purchased and the Company shall direct its transfer agent to comply with all such requests; or (B) if the Company has elected to deposit the total number of shares of Common Preferred Stock issuable upon exercise of the Rights hereunder with a depositary agent, requisition from the depositary agent depositary receipts representing such number of one one-thousandths of a share of Preferred Stock as are to be purchasedpurchased (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 will shall direct the transfer agent depositary to comply with all such request;
requests; (ii) if necessary to comply with this Agreement, requisition from the Company the amount of cash, if any, to be paid in lieu of fractional shares in accordance with Section 14 hereof;
; (iii) after receipt of such Common Stock certificatescertificates or such depositary receipts, cause the same to be delivered to or upon the order of the registered holder of such Rights Certificate, registered in such name or names as may be designated by such holder; and
and (iv) if necessary to comply with this Agreement, after receipt of thereof, deliver such cash, if any, deliver the same to or upon the order of the registered holder of such Rights Certificate. In the event that the Company is obligated to issue Common Stock or other securities of the Company, pay cash and/or distribute other property assets pursuant to Section 11(a) hereof, the Company will shall make all arrangements necessary so that such Common Stock, other securities, cash and/or other property assets are available for distribution by the Rights Agent, if and when appropriatenecessary to comply with this Agreement, and until so received, the Rights Agent shall have no duties or obligations with respect to such securities, cash and/or other assets. The payment of the Exercise Price (as such amount may be reduced pursuant to Section 11(a)(iii) hereof) may be made in cash or by certified or bank check or bank draft money order payable to the order of the Company.
(d) In the event of an exercise of the Rights by a holder pursuant to Section 11(a)(ii) hereof, the Rights Agent shall return such Rights Certificate to the registered holder thereof after imprinting, stamping, or otherwise indicating thereon that the rights represented by such Rights Certificate no longer include the rights provided by Section 11(a)(ii) of the Rights Agreement. In addition, in the event that the registered holder of any Rights Certificate shall exercise exercises less than all the Rights evidenced thereby, a new Rights Certificate evidencing the Rights remaining unexercised (and, if some of the Rights exercised were exercised pursuant to Section 11(a)(ii), indicating by imprint, stamp or otherwise the number of Rights remaining which continue to include rights provided by Section 11(a)(ii)) shall be issued by the Rights Agent and delivered to, or upon the order of, the registered holder of such Rights Certificateholder, registered in such name or names as may be designated by such holder, subject to the provisions of Section Sections 6 and 14 hereof.
(e) Notwithstanding anything in this Agreement to the contrary, from and after the first occurrence of a Section 11(a)(ii) Flip-In Event, any Rights beneficially owned Beneficially Owned by any of the Persons described below 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:
(i) an Acquiring Person or an Affiliate or Associate a Related Person of an Acquiring Person;
; (ii) a transferee of an Acquiring Person (or of any such Affiliate or AssociateRelated Person) which who becomes a transferee after the Acquiring Person becomes such; or
or (iii) a transferee of an Acquiring Person (or of any such Affiliate or AssociateRelated Person) which who becomes a transferee prior to or concurrently with the Acquiring Person becoming such and which who receives such Rights pursuant to either (A) a transfer (whether or not for consideration) from the Acquiring Person (or any such Affiliate or AssociateRelated Person) to holders of equity interests therein, in such Acquiring Person (or any such Related Person) or to any Person with whom such the Acquiring Person (or Affiliate or Associateany such Related Person) has any continuing written or oral plan, agreement, arrangement or understanding regarding the transferred Rights, shares of Common Stock, Stock or the Company, ; or (B) a transfer which a majority of that the Board has determined in good faith to be part of a plan, agreement, arrangement or understanding which that has as a primary purpose or effect the avoidance of this Section 7(e), shall be null and void without any further action, and any holder of such Rights thereafter shall have no rights or preferences whatsoever with respect to such Rights, whether under any provision of this Agreement, the Rights Certificates or otherwise (including, without limitation, rights and preferences pursuant to Sections 7, 11, 13, 23 and 24 hereof). The Company shall use all commercially reasonable efforts to ensure that compliance with the provisions of this Section 7(e) and Section 4(b) hereof are complied withhereof, but shall neither the Company nor the Rights Agent have no any liability to any holder of Rights or any other Person as a result of its the Company’s failure to make any determination under this Section 7(e) or such Section 4(b) with respect to an Acquiring Person or its Affiliates, Associates Related Persons or transfereestransferees hereunder.
(f) Notwithstanding anything in this Agreement or any Rights Certificate to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake take any action with respect to a registered holder upon the occurrence of any purported transfer or exercise as set forth in this Section 7 by such registered holder unless such registered holder shall have has (i) properly completed and duly executed the certificate following the form of election to purchase set forth on the reverse side of the Rights Certificate surrendered for such exercise, and (ii) provided such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner (or Affiliates or Associates thereofOwner) of the Rights represented by such Rights Certificate or Related Persons thereof as the Company or the Rights Agent reasonably requests.
(g) Except for those provisions herein that expressly survive the termination of this Agreement, this Agreement shall reasonably requestterminate upon the earlier of the Expiration Date and such time as all outstanding Rights have been exercised, redeemed or exchanged hereunder.
Appears in 1 contract
Exercise of Rights; Exercise Price; Expiration Date of Rights. (a) At any time after the Exercisability Date and prior Subject to the earlier of (iSection 7(e) the Close of Business on February 7, 2006 (the "Final Expiration Date"), or (ii) the time at which the Rights are redeemed as provided in Section 23 hereof (the "Redemption Date") (the earlier of (i) and (ii) being the "Expiration Date")hereof, the registered holder of any Rights Certificate may, subject to the provisions of Section 7(e) hereof, may exercise the Rights evidenced thereby (except as otherwise provided herein including, without limitation, in the restrictions on exercisability set forth in Sections 9(c), 11(a)(iii) and 23(a) hereof) in whole or in part at any time after the Distribution Date upon surrender of the Rights Certificate, with the form of election to purchase and the certificate on the reverse side thereof properly completed and duly executed, to the Rights Agent at the office of the Rights Agent designated for such purpose, together with payment of the aggregate Exercise Price (as hereinafter defined) for the number each one one-thousandth of shares a share of Common Preferred Stock (or, following a Triggering Eventor Common Stock, other securities, cash or other assets, as the case may be) as to which the Rights are exercised prior to the earliest of (i) the Close of Business on October 11, 2024, unless this Agreement is renewed up to two additional twelve (12) month periods through October 11, 2026, as may be approved by the Board prior to the expiration of the Rights as long as each such twelve (12) month renewal period is submitted to the stockholders of the Company for their approval and is thereby approved, and, if not approved, with respect to any such twelve (12) month renewal period, then the last date for which such surrendered this Agreement is in effect (the “Final Expiration Date”); (ii) the time at which the Rights are then exercisableredeemed pursuant to Section 23 hereof (the “Redemption Date”); (iii) the time at which the Rights are exchanged pursuant to Section 24 hereof (the “Exchange Date”); (iv) the closing of any merger or other acquisition transaction involving the Company pursuant to an agreement of the type described in Section 13(f) at which time the Rights are terminated; (the “Early Expiration Date”); (vi) the Close of Business on the effective date of the repeal of Section 382 of the Code if the Board determines that this Agreement is no longer necessary or desirable for the preservation of Tax Benefits; and (vii) the Close of Business on the first day of a taxable year of the Company to which the Board determines that no Tax Benefits are available to be carried forward (the earliest of (i) - (vii) being herein referred to as the “Expiration Date”).
(b) Each Right shall entitle the registered holder thereof to purchase one one-thousandth of a share of Preferred Stock. The purchase price Exercise Price for each one tenth one-thousandth of one a share of Common Preferred Stock upon pursuant to the exercise of the Rights initially a Right shall be initially $80.00, 5.00 and shall be subject to adjustment from time to time as provided in the next sentence and in Sections 11 and 13(a) 13 hereof (such purchase price, as so adjusted, being and payable in lawful money of the "Exercise Price"), and shall be payable United States in accordance with paragraph (c) below. Anything in this Agreement to the contrary notwithstanding, in the event that, at any time after the date of this Agreement and prior to the Exercisability Date, the Company shall (i) declare a dividend on the Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock, (iii) combine the outstanding Common Stock into a smaller number of shares, or (iv) issue any shares of its capital stock in a reclassification of the Common Stock; then, in any such case, each share of Common Stock outstanding following such dividend, subdivision, combination or reclassification shall continue to have a Right associated therewith, and the Exercise Price following any such event shall be proportionately adjusted to equal the result obtained by multiplying the Exercise Price immediately prior to such event by a fraction, the numerator of which shall be the total number of shares of Common Stock outstanding immediately prior to the occurrence of the event and the denominator of which shall be the total number of shares of Common Stock outstanding immediately following the occurrence of such event. The adjustment provided for in the preceding sentence shall be made successively whenever such a dividend is declared or such a subdivision, combination or reclassification is effectedSection 7.
(c) Upon receipt of a Rights Certificate representing exercisable Rights, with the form of election to purchase and the certificate properly completed and duly executed, accompanied by written confirmation from the Company of receipt of payment in the manner described below, with respect to each Right so exercised, of the Exercise Price for the shares per one one-thousandth of Common a share of Preferred Stock (or, following a Triggering Eventor Common Stock, other securities, cash or other assets, as the case may be) to be purchased thereby, and of an amount equal to any applicable transfer tax required to be paid by the holder in accordance with Section 6 hereof or evidence satisfactory to the Company of payment of such tax)governmental charge, then the Rights Agent shall, subject to Section 20(j18(j) hereof, thereupon promptly:
promptly (i) (A) requisition from the any transfer agent for of the Common Preferred Stock certificates for representing such number of one one-thousandths of a share of Preferred Stock (or fractions of shares that are integral multiples of one one-thousandth of a share of Preferred Stock) as are to be purchased and the Company shall direct its transfer agent to comply with all such requests; or (B) if the Company has elected to deposit the total number of shares of Common Preferred Stock issuable upon exercise of the Rights hereunder with a depositary agent, requisition from the depositary agent depositary receipts representing such number of one one-thousandths of a share of Preferred Stock as are to be purchasedpurchased (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 will shall direct the transfer agent depositary to comply with all such request;
requests; (ii) if necessary to comply with this Agreement, requisition from the Company the amount of cash, if any, to be paid in lieu of fractional shares in accordance with Section 14 hereof;
; (iii) after receipt of such Common Stock certificatescertificates or such depositary receipts, cause the same to be delivered to or upon the order of the registered holder of such Rights Certificate, registered in such name or names as may be designated by such holder; and
and (iv) if necessary to comply with this Agreement, after receipt of thereof, deliver such cash, if any, deliver the same to or upon the order of the registered holder of such Rights Certificate. In the event that the Company is obligated to issue Common Stock or other securities of the Company, pay cash and/or distribute other property assets pursuant to Section 11(a) hereof, the Company will shall make all arrangements necessary so that such Common Stock, other securities, cash and/or other property assets are available for distribution by the Rights Agent, if and when appropriatenecessary to comply with this Agreement, and until so received, the Rights Agent shall have no duties or obligations with respect to such securities, cash and/or other assets. The payment of the Exercise Price (as such amount may be reduced pursuant to Section 11(a)(iii) hereof) may be made in cash cash, by wire payment or by certified or bank check or bank draft money order payable to the order of the Company.
(d) In the event of an exercise of the Rights by a holder pursuant to Section 11(a)(ii) hereof, the Rights Agent shall return such Rights Certificate to the registered holder thereof after imprinting, stamping, or otherwise indicating thereon that the rights represented by such Rights Certificate no longer include the rights provided by Section 11(a)(ii) of the Rights Agreement. In addition, in the event that the registered holder of any Rights Certificate shall exercise exercises less than all the Rights evidenced thereby, a new Rights Certificate evidencing the Rights remaining unexercised (and, if some of the Rights exercised were exercised pursuant to Section 11(a)(ii), indicating by imprint, stamp or otherwise the number of Rights remaining which continue to include rights provided by Section 11(a)(ii)) shall be issued by the Rights Agent and delivered to, or upon the order of, the registered holder of such Rights Certificateholder, registered in such name or names as may be designated by such holder, subject to the provisions of Section Sections 6 and 14 hereof.
(e) Notwithstanding anything in this Agreement to the contrary, from and after the first occurrence of a Section 11(a)(ii) Flip-In Event, any Rights beneficially owned Beneficially Owned by any of the Persons described below 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:
(i) an Acquiring Person or an Affiliate or Associate a Related Person of an Acquiring Person;
; (ii) a transferee of an Acquiring Person (or of any such Affiliate or AssociateRelated Person) which who becomes a transferee after the Acquiring Person becomes such; or
or (iii) a transferee of an Acquiring Person (or of any such Affiliate or AssociateRelated Person) which who becomes a transferee prior to or concurrently with the Acquiring Person becoming such and which who receives such Rights pursuant to either (A) a transfer (whether or not for consideration) from the Acquiring Person (or any such Affiliate or AssociateRelated Person) to holders of equity interests therein, in such Acquiring Person (or any such Related Person) or to any Person with whom such the Acquiring Person (or Affiliate or Associateany such Related Person) has any continuing written or oral plan, agreement, arrangement or understanding regarding the transferred Rights, shares of Common Stock, Stock or the Company, ; or (B) a transfer which a majority of that the Board has determined in good faith to be part of a plan, agreement, arrangement or understanding which that has as a primary purpose or effect the avoidance of this Section 7(e), shall be null and void without any further action, and any holder of such Rights thereafter shall have no rights or preferences whatsoever with respect to such Rights, whether under any provision of this Agreement, the Rights Certificates or otherwise (including, without limitation, rights and preferences pursuant to Sections 7, 11, 13, 23 and 24 hereof). The Company shall use all commercially reasonable efforts to ensure that compliance with the provisions of this Section 7(e) and Section 4(b) hereof are complied withhereof, but shall neither the Company nor the Rights Agent have no any liability to any holder of Rights or any other Person as a result of its the Company’s failure to make any determination under this Section 7(e) or such Section 4(b) with respect to an Acquiring Person or its Affiliates, Associates Related Persons or transfereestransferees hereunder.
(f) Notwithstanding anything in this Agreement or any Rights Certificate to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake take any action with respect to a registered holder upon the occurrence of any purported transfer or exercise as set forth in this Section 7 by such registered holder unless such registered holder shall have has (i) properly completed and duly executed the certificate following the form of election to purchase set forth on the reverse side of the Rights Certificate surrendered for such exercise, and (ii) provided such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner (or Affiliates or Associates thereofOwner) of the Rights represented by such Rights Certificate or Related Persons thereof as the Company or the Rights Agent reasonably requests.
(g) Except for those provisions herein that expressly survive the termination of this Agreement, this Agreement shall reasonably requestterminate upon the earlier of the Expiration Date and such time as all outstanding Rights have been exercised, redeemed or exchanged hereunder.
Appears in 1 contract
Exercise of Rights; Exercise Price; Expiration Date of Rights. (a) At any time after the Exercisability Date and prior Subject to the earlier of (iSection 7(e) the Close of Business on February 7, 2006 (the "Final Expiration Date"), or (ii) the time at which the Rights are redeemed as provided in Section 23 hereof (the "Redemption Date") (the earlier of (i) and (ii) being the "Expiration Date")hereof, the registered holder of any Rights Certificate may, subject to the provisions of Section 7(e) hereof, may exercise the Rights evidenced thereby (except as otherwise provided herein including, without limitation, in the restrictions on exercisability set forth in Sections 9(c), 11(a)(iii) and 23(a) hereof) in whole or in part at any time after the Distribution Date upon surrender of the Rights Certificate, with the form of election to purchase and the certificate on the reverse side thereof properly completed and duly executed, to the Rights Agent at the office of the Rights Agent designated for such purpose, together with payment of the aggregate Exercise Price (as hereinafter defined) for the number each one one-thousandth of shares a share of Common Preferred Stock (or, following a Triggering Eventor Common Stock, other securities, cash or other assets, as the case may be) for as to which such surrendered the Rights are then exercisable.
exercised prior to the earliest of (bi) The purchase price for each one tenth the Close of one share of Common Stock upon exercise Business on October 11, 2024, unless this Agreement is renewed up to two additional twelve (12) month periods through October 11, 2026, as may be approved by the Board prior to the expiration of the Rights initially shall be $80.00, subject to adjustment from time to time as provided in the next sentence and in Sections 11 and 13(along as each such twelve (12) hereof (such purchase price, as so adjusted, being the "Exercise Price"), and shall be payable in accordance with paragraph (c) below. Anything in this Agreement month renewal period is submitted to the contrary notwithstanding, in the event that, at any time after the date stockholders of this Agreement and prior to the Exercisability Date, the Company shall (i) declare a dividend on the Common Stock payable in shares of Common Stockfor their approval and is thereby approved, (ii) subdivide the outstanding Common Stockand, (iii) combine the outstanding Common Stock into a smaller number of shares, or (iv) issue any shares of its capital stock in a reclassification of the Common Stock; then, in any such case, each share of Common Stock outstanding following such dividend, subdivision, combination or reclassification shall continue to have a Right associated therewith, and the Exercise Price following any such event shall be proportionately adjusted to equal the result obtained by multiplying the Exercise Price immediately prior to such event by a fraction, the numerator of which shall be the total number of shares of Common Stock outstanding immediately prior to the occurrence of the event and the denominator of which shall be the total number of shares of Common Stock outstanding immediately following the occurrence of such event. The adjustment provided for in the preceding sentence shall be made successively whenever such a dividend is declared or such a subdivision, combination or reclassification is effected.
(c) Upon receipt of a Rights Certificate representing exercisable Rights, with the form of election to purchase and the certificate duly executed, accompanied by payment in the manner described belowif not approved, with respect to each Right so exercisedany such twelve (12) month renewal period, of then the Exercise Price last date for which this Agreement is in effect (the shares of Common Stock (or, following a Triggering Event, other securities, cash or other assets, as the case may be) to be purchased thereby, and of an amount equal to any applicable transfer tax required to be paid by the holder in accordance with Section 6 hereof or evidence satisfactory to the Company of payment of such tax“Final Expiration Date”), the Rights Agent shall, subject to Section 20(j) hereof, thereupon promptly:
(i) requisition from the transfer agent for the Common Stock certificates for such number of shares of Common Stock as are to be purchased, and the Company will direct the transfer agent to comply with such request;
; (ii) requisition from the Company time at which the amount of cash, if any, Rights are redeemed pursuant to be paid in lieu of fractional shares in accordance with Section 14 hereof;
23 hereof (the “Redemption Date”); (iii) after receipt of such Common Stock certificates, cause the same time at which the Rights are exchanged pursuant to be delivered to or upon Section 24 hereof (the order of the registered holder of such Rights Certificate, registered in such name or names as may be designated by such holder“Exchange Date”); and
(iv) after receipt the closing of such cash, if any, deliver any merger or other acquisition transaction involving the same Company pursuant to or upon the order an agreement of the registered holder type described in Section 13(f) at which time the Rights are terminated; (the “Early Expiration Date”); (vi) the Close of such Rights Certificate. In Business on the event that the Company is obligated to issue other securities effective date of the Company, pay cash and/or distribute other property pursuant to repeal of Section 11(a) hereof, the Company will make all arrangements necessary so that such other securities, cash and/or other property are available for distribution by the Rights Agent, if and when appropriate. The payment 382 of the Exercise Price (as such amount may be reduced pursuant to Section 11(a)(iii) hereof) may be made in cash or by certified or bank check or bank draft payable to Code if the order of the Company.
(d) In the event of an exercise of the Rights by a holder pursuant to Section 11(a)(ii) hereof, the Rights Agent shall return such Rights Certificate to the registered holder thereof after imprinting, stamping, or otherwise indicating thereon Board determines that the rights represented by such Rights Certificate this Agreement is no longer include necessary or desirable for the rights provided by Section 11(a)(ii) preservation of the Rights Agreement. In addition, in the event that the registered holder of any Rights Certificate shall exercise less than all the Rights evidenced thereby, a new Rights Certificate evidencing the Rights remaining unexercised (Tax Benefits; and, if some of the Rights exercised were exercised pursuant to Section 11(a)(ii), indicating by imprint, stamp or otherwise the number of Rights remaining which continue to include rights provided by Section 11(a)(ii)) shall be issued by the Rights Agent and delivered to, or upon the order of, the registered holder of such Rights Certificate, registered in such name or names as may be designated by such holder, subject to the provisions of Section 14 hereof.
(e) Notwithstanding anything in this Agreement to the contrary, from and after the first occurrence of a Section 11(a)(ii) Event, any Rights beneficially owned by any of the Persons described below 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:
(i) an Acquiring Person or an Affiliate or Associate of an Acquiring Person;
(ii) a transferee of an Acquiring Person (or of any such Affiliate or Associate) which becomes a transferee after the Acquiring Person becomes such; or
(iii) a transferee of an Acquiring Person (or of any such Affiliate or Associate) 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 Affiliate or Associate) to holders of equity interests therein, or to any Person with whom such Acquiring Person (or Affiliate or Associate) has any continuing agreement, arrangement or understanding regarding the transferred Rights, shares of Common Stock, or the Company, or (B) a transfer which a majority of the Board 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). The Company shall use all reasonable efforts to ensure that the provisions of this Section 7(e) and Section 4(b) hereof are complied with, but shall have no liability to any holder of Rights or any other Person as a result of its failure to make any determination under this Section 7(e) or such Section 4(b) with respect to an Acquiring Person or its Affiliates, Associates or transferees.
(f) Notwithstanding anything in this Agreement or any Rights Certificate 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 by such registered holder unless such registered holder shall have (i) completed and executed the certificate following the form of election to purchase set forth on the reverse side of the Rights Certificate surrendered for such exercise, and (ii) provided such additional evidence of the identity of the Beneficial Owner or former Beneficial Owner (or Affiliates or Associates thereof) of the Rights represented by such Rights Certificate as the Company shall reasonably request.
Appears in 1 contract
Sources: Rights Agreement
Exercise of Rights; Exercise Price; Expiration Date of Rights. (a) At any time after the Exercisability Date and prior to the earlier of (i) the Close of Business on February 7, 2006 the tenth anniversary of the Record Date (the "Final Expiration Date"), or (ii) the time at which the Rights are redeemed as provided in Section 23 hereof (the "Redemption Date") (the earlier of (i) and (ii) being the "Expiration Date"), the registered holder of any Rights Certificate may, subject to the provisions of Section 7(e) hereof, exercise the Rights evidenced thereby in whole or in part upon surrender of the Rights Certificate, with the form of election to purchase and the certificate on the reverse side thereof duly executed, to the Rights Agent at the office of the Rights Agent designated for such purpose, together with payment of the aggregate Exercise Price (as hereinafter defined) for the total number of shares one hundredths of Common a share of Preferred Stock (or, following a Triggering Event, other securities, cash or other assets, as the case may be) for which such surrendered Rights are then exercisable.
(b) The purchase price for each one tenth hundredth of one a share of Common Preferred Stock upon exercise of the Rights initially shall be $80.00100, and subject to adjustment from time to time as provided in the next sentence and in Sections 11 and 13(a) hereof (such purchase price, as so adjusted, being the "Exercise Price"), and shall be payable in accordance with paragraph (c) below. Anything in this Agreement to the contrary notwithstanding, in the event that, at any time after the effective date of this Agreement and prior to the Exercisability Date, the Company shall (i) declare a dividend on the Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock, (iii) combine the outstanding Common Stock into a smaller number of shares, or (iv) issue any shares of its capital stock in a reclassification of the Common Stock; then, in any such case, each share of Common Stock outstanding following such dividend, subdivision, combination or reclassification shall continue to have a Right associated therewith, and the Exercise Price following any such event shall be proportionately adjusted to equal the result obtained by multiplying the Exercise Price immediately prior to such event by a fraction, the numerator of which shall be the total number of shares of Common Stock outstanding immediately prior to the occurrence of the event and the denominator of which shall be the total number of shares of Common Stock outstanding immediately following the occurrence of such event. The adjustment provided for in the preceding sentence shall be made successively whenever such a dividend is declared or such a subdivision, combination or reclassification is effected.
(c) Upon receipt of a Rights Certificate representing exercisable Rights, with the form of election to purchase and the certificate duly executed, accompanied by payment in the manner described below, with respect to each Right so exercised, of the Exercise Price for the shares of Common Stock (or, following a Triggering Event, other securities, cash or other assets, as the case may be) to be purchased thereby, and of an amount equal to any applicable transfer tax required to be paid by the holder in accordance with Section 6 hereof or evidence satisfactory to the Company of payment of such tax), the Rights Agent shall, subject to Section 20(j) hereof, thereupon promptly:
(i) requisition from the transfer agent for the Common Stock certificates for such number of shares of Common Stock as are to be purchased, and the Company will direct the transfer agent to comply with such request;
(ii) requisition from the Company the amount of cash, if any, to be paid in lieu of fractional shares in accordance with Section 14 hereof;
(iii) after receipt of such Common Stock certificates, cause the same to be delivered to or upon the order of the registered holder of such Rights Certificate, registered in such name or names as may be designated by such holder; and
(iv) after receipt of such cash, if any, deliver the same to or upon the order of the registered holder of such Rights Certificate. In the event that the Company is obligated to issue other securities of the Company, pay cash and/or distribute other property pursuant to Section 11(a) hereof, the Company will make all arrangements necessary so that such other securities, cash and/or other property are available for distribution by the Rights Agent, if and when appropriate. The payment of the Exercise Price (as such amount may be reduced pursuant to Section 11(a)(iii) hereof) may be made in cash or by certified or bank check or bank draft payable to the order of the Company.
(d) In the event of an exercise of the Rights by a holder pursuant to Section 11(a)(ii) hereof, the Rights Agent shall return such Rights Certificate to the registered holder thereof after imprinting, stamping, or otherwise indicating thereon that the rights represented by such Rights Certificate no longer include the rights provided by Section 11(a)(ii) of the Rights Agreement. In addition, in the event that the registered holder of any Rights Certificate shall exercise less than all the Rights evidenced thereby, a new Rights Certificate evidencing the Rights remaining unexercised (and, if some of the Rights exercised were exercised pursuant to Section 11(a)(ii), indicating by imprint, stamp or otherwise the number of Rights remaining which continue to include rights provided by Section 11(a)(ii)) shall be issued by the Rights Agent and delivered to, or upon the order of, the registered holder of such Rights Certificate, registered in such name or names as may be designated by such holder, subject to the provisions of Section 14 hereof.
(e) Notwithstanding anything in this Agreement to the contrary, from and after the first occurrence of a Section 11(a)(ii) Event, any Rights beneficially owned by any of the Persons described below 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:
(i) an Acquiring Person or an Affiliate or Associate of an Acquiring Person;
(ii) a transferee of an Acquiring Person (or of any such Affiliate or Associate) which becomes a transferee after the Acquiring Person becomes such; or
(iii) a transferee of an Acquiring Person (or of any such Affiliate or Associate) 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 Affiliate or Associate) to holders of equity interests therein, or to any Person with whom such Acquiring Person (or Affiliate or Associate) has any continuing agreement, arrangement or understanding regarding the transferred Rights, shares of Common Stock, or the Company, or (B) a transfer which a majority of the Board 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). The Company shall use all reasonable efforts to ensure that the provisions of this Section 7(e) and Section 4(b) hereof are complied with, but shall have no liability to any holder of Rights or any other Person as a result of its failure to make any determination under this Section 7(e) or such Section 4(b) with respect to an Acquiring Person or its Affiliates, Associates or transferees.
(f) Notwithstanding anything in this Agreement or any Rights Certificate 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 by such registered holder unless such registered holder shall have (i) completed and executed the certificate following the form of election to purchase set forth on the reverse side of the Rights Certificate surrendered for such exercise, and (ii) provided such additional evidence of the identity of the Beneficial Owner or former Beneficial Owner (or Affiliates or Associates thereof) of the Rights represented by such Rights Certificate as the Company shall reasonably request.following
Appears in 1 contract
Exercise of Rights; Exercise Price; Expiration Date of Rights. (a) At any time after the Exercisability Date and prior Subject to the earlier of (iSection 7(e) the Close of Business on February 7, 2006 (the "Final Expiration Date"), or (ii) the time at which the Rights are redeemed as provided in Section 23 hereof (the "Redemption Date") (the earlier of (i) and (ii) being the "Expiration Date")hereof, the registered holder of any Rights Certificate may, subject to the provisions of Section 7(e) hereof, may exercise the Rights evidenced thereby (except as otherwise provided herein including, without limitation, in the restrictions on exercisability set forth in Sections 9(c), 11(a)(iii) and 23(a) hereof) in whole or in part at any time after the Distribution Date upon surrender of the Rights Certificate, with the form of election to purchase and the certificate on the reverse side thereof properly completed and duly executed, to the Rights Agent at the office of the Rights Agent designated for such purpose, together with payment of the aggregate Exercise Price (as hereinafter defined) for the number each one one-thousandth of shares a share of Common Preferred Stock (or, following a Triggering Eventor Common Stock, other securities, cash or other assets, as the case may be) for as to which such surrendered the Rights are then exercisableexercised prior to the earliest of (i) the Close of Business on March 16, 2020 or such later date as may be established by the Board prior to the expiration of the Rights as long as the extension is submitted to the stockholders of the Company for ratification at the next annual meeting of stockholders succeeding such extension (the “Final Expiration Date”); (ii) the time at which the Rights are redeemed pursuant to Section 23 hereof (the “Redemption Date”); (iii) the time at which the Rights are exchanged pursuant to Section 24 hereof (the “Exchange Date”); (iv) the closing of any merger or other acquisition transaction involving the Company pursuant to an agreement of the type described in Section 13 at which time the Rights are terminated; (v) the Close of Business on the first day after the Company’s 2017 annual meeting of stockholders, if Stockholder Approval has not been obtained at such meeting (the “Early Expiration Date”); (vi) the Close of Business on the effective date of the repeal of Section 382 of the Code if the Board determines that this Agreement is no longer necessary or desirable for the preservation of Tax Benefits; (vii) the Close of Business on the first day of a taxable year of the Company to which the Board determines that no Tax Benefits are available to be carried forward; and (viii) the Close of Business on the first day after the Board of Directors determines by resolution in its business judgment that the Agreement is no longer necessary or appropriate (the earliest of (i) – (viii) being herein referred to as the “Expiration Date”).
(b) Each Right shall entitle the registered holder thereof to purchase one one-thousandth of a share of Preferred Stock. The purchase price Exercise Price for each one tenth one-thousandth of one a share of Common Preferred Stock upon pursuant to the exercise of the Rights initially a Right shall be initially $80.001.10, and shall be subject to adjustment from time to time as provided in Section 11 hereof and payable in lawful money of the next sentence and in Sections 11 and 13(a) hereof (such purchase price, as so adjusted, being the "Exercise Price"), and shall be payable United States in accordance with paragraph (c) below. Anything in this Agreement to the contrary notwithstanding, in the event that, at any time after the date of this Agreement and prior to the Exercisability Date, the Company shall (i) declare a dividend on the Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock, (iii) combine the outstanding Common Stock into a smaller number of shares, or (iv) issue any shares of its capital stock in a reclassification of the Common Stock; then, in any such case, each share of Common Stock outstanding following such dividend, subdivision, combination or reclassification shall continue to have a Right associated therewith, and the Exercise Price following any such event shall be proportionately adjusted to equal the result obtained by multiplying the Exercise Price immediately prior to such event by a fraction, the numerator of which shall be the total number of shares of Common Stock outstanding immediately prior to the occurrence of the event and the denominator of which shall be the total number of shares of Common Stock outstanding immediately following the occurrence of such event. The adjustment provided for in the preceding sentence shall be made successively whenever such a dividend is declared or such a subdivision, combination or reclassification is effectedSection 7.
(c) Upon receipt of a Rights Certificate representing exercisable Rights, with the form of election to purchase and the certificate properly completed and duly executed, accompanied by payment in the manner described belowpayment, with respect to each Right so exercised, of the Exercise Price for the shares per one one-thousandth of Common a share of Preferred Stock (or, following a Triggering Eventor Common Stock, other securities, cash or other assets, as the case may be) to be purchased thereby, and of an amount equal to any applicable transfer tax required to be paid by the holder in accordance with Section 6 hereof or evidence satisfactory to the Company of payment of such tax)governmental charge, then the Rights Agent shall, subject to Section 20(j18(j) hereof, thereupon promptly:
promptly (i) (A) requisition from the any transfer agent for of the Common Preferred Stock certificates for representing such number of one one-thousandths of a share of Preferred Stock (or fractions of shares that are integral multiples of one one-thousandth of a share of Preferred Stock) as are to be purchased and the Company shall direct its transfer agent to comply with all such requests; or (B) if the Company has elected to deposit the total number of shares of Common Preferred Stock issuable upon exercise of the Rights hereunder with a depositary agent, requisition from the depositary agent depositary receipts representing such number of one one-thousandths of a share of Preferred Stock as are to be purchasedpurchased (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 will shall direct the transfer agent depositary to comply with all such request;
requests; (ii) if necessary to comply with this Agreement, requisition from the Company the amount of cash, if any, to be paid in lieu of fractional shares in accordance with Section 14 hereof;
; (iii) after receipt of such Common Stock certificatescertificates or such depositary receipts, cause the same to be delivered to or upon the order of the registered holder of such Rights Certificate, registered in such name or names as may be designated by such holder; and
and (iv) if necessary to comply with this Agreement, after receipt of thereof, deliver such cash, if any, deliver the same to or upon the order of the registered holder of such Rights Certificate. In the event that the Company is obligated to issue Common Stock or other securities of the Company, pay cash and/or distribute other property assets pursuant to Section 11(a) hereof, the Company will shall make all arrangements necessary so that such Common Stock, other securities, cash and/or other property assets are available for distribution by the Rights Agent, if and when appropriatenecessary to comply with this Agreement, and until so received, the Rights Agent shall have no duties or obligations with respect to such securities, cash and/or other assets. The payment of the Exercise Price (as such amount may be reduced pursuant to Section 11(a)(iii) hereof) may be made in cash or by certified or bank check or bank draft money order payable to the order of the Company.
(d) In the event of an exercise of the Rights by a holder pursuant to Section 11(a)(ii) hereof, the Rights Agent shall return such Rights Certificate to the registered holder thereof after imprinting, stamping, or otherwise indicating thereon that the rights represented by such Rights Certificate no longer include the rights provided by Section 11(a)(ii) of the Rights Agreement. In addition, in the event that the registered holder of any Rights Certificate shall exercise exercises less than all the Rights evidenced thereby, a new Rights Certificate evidencing the Rights remaining unexercised (and, if some of the Rights exercised were exercised pursuant to Section 11(a)(ii), indicating by imprint, stamp or otherwise the number of Rights remaining which continue to include rights provided by Section 11(a)(ii)) shall be issued by the Rights Agent and delivered to, or upon the order of, the registered holder of such Rights Certificateholder, registered in such name or names as may be designated by such holder, subject to the provisions of Section Sections 6 and 14 hereof.
(e) Notwithstanding anything in this Agreement to the contrary, from and after the first occurrence of a Section 11(a)(ii) Flip-In Event, any Rights beneficially owned Beneficially Owned by any of the Persons described below 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:
(i) an Acquiring Person or an Affiliate or Associate a Related Person of an Acquiring Person;
; (ii) a transferee of an Acquiring Person (or of any such Affiliate or AssociateRelated Person) which who becomes a transferee after the Acquiring Person becomes such; or
or (iii) a transferee of an Acquiring Person (or of any such Affiliate or AssociateRelated Person) which who becomes a transferee prior to or concurrently with the Acquiring Person becoming such and which who receives such Rights pursuant to either (A) a transfer (whether or not for consideration) from the Acquiring Person (or any such Affiliate or AssociateRelated Person) to holders of equity interests therein, in such Acquiring Person (or any such Related Person) or to any Person with whom such the Acquiring Person (or Affiliate or Associateany such Related Person) has any continuing written or oral plan, agreement, arrangement or understanding regarding the transferred Rights, shares of Common Stock, Stock or the Company, ; or (B) a transfer which a majority of that the Board has determined in good faith to be part of a plan, agreement, arrangement or understanding which that has as a primary purpose or effect of the avoidance of this Section 7(e), shall be null and void without any further action, and any holder of such Rights thereafter shall have no rights or preferences whatsoever with respect to such Rights, whether under any provision of this Agreement, the Rights Certificates or otherwise (including, without limitation, rights and preferences pursuant to Sections 7, 11, 23 and 24 hereof). The Company shall use all commercially reasonable efforts to ensure that compliance with the provisions of this Section 7(e) and Section 4(b) hereof are complied withhereof, but shall neither the Company nor the Rights Agent have no any liability to any holder of Rights or any other Person as a result of its the Company’s failure to make any determination under this Section 7(e) or such Section 4(b) with respect to an Acquiring Person or its Affiliates, Associates Related Persons or transfereestransferees hereunder.
(f) Notwithstanding anything in this Agreement or any Rights Certificate to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake take any action with respect to a registered holder upon the occurrence of any purported transfer or exercise as set forth in this Section 7 by such registered holder unless such registered holder shall have has (i) properly completed and duly executed the certificate following the form of election to purchase set forth on the reverse side of the Rights Certificate surrendered for such exercise, and (ii) provided such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner (or Affiliates or Associates thereofOwner) of the Rights represented by such Rights Certificate or Related Persons thereof as the Company or the Rights Agent reasonably requests.
(g) Except for those provisions herein that expressly survive the termination of this Agreement, this Agreement shall reasonably requestterminate upon the earlier of the Expiration Date and such time as all outstanding Rights have been exercised, redeemed or exchanged hereunder.
(h) Notwithstanding any provision of this Agreement to the contrary, the Company, by action of the Board in its sole discretion acting in its business judgment, may at any time before or after any Person becomes an Acquiring Person amend this Agreement to make the provisions of this Agreement inapplicable to a particular transaction by which a Person might otherwise become an Acquiring Person or to otherwise alter the terms and conditions of this Agreement as they may apply with respect to any such transaction.
Appears in 1 contract
Sources: Rights Agreement (Tengasco Inc)
Exercise of Rights; Exercise Price; Expiration Date of Rights. (a) At any time after the Exercisability Date and prior to the earlier of (i) the Close of Business on February 7, 2006 the tenth anniversary of the Record Date (the "Final Expiration Date"), or (ii) the time at which the Rights are redeemed as provided in Section 23 hereof (the "Redemption Date") (the earlier of (i) and (ii) being the "Expiration Date"), the registered holder of any Rights Certificate may, subject to the provisions of Section 7(e) hereof, exercise the Rights evidenced thereby in whole or in part upon surrender of the Rights Certificate, with the form of election to purchase and the certificate on the reverse side thereof duly executed, to the Rights Agent at the office of the Rights Agent designated for such purpose, together with payment of the aggregate Exercise Price (as hereinafter defined) for the total number of shares one hundredths of Common a share of Series One Preferred Stock (or, following a Triggering Event, other securities, cash or other assets, as the case may be) for which such surrendered Rights are then exercisable.
(b) The purchase price for each one tenth hundredth of one a share of Common Series One Preferred Stock upon exercise of the Rights initially shall be $80.0040 assuming the 1-for-3.7 reverse stock split with respect to the Common Stock as described in the Registration Statement, and subject to adjustment from time to time as provided in the next sentence and in Sections 11 and 13(a) hereof (such purchase price, as so adjusted, being the "Exercise Price"), and shall be payable in accordance with paragraph (c) below. Anything in this Agreement to the contrary notwithstanding, in the event that, at any time after the effective date of this Agreement and prior to the Exercisability Date, the Company shall (i) declare a dividend on the Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock, (iii) combine the outstanding Common Stock into a smaller number of shares, or (iv) issue any shares of its capital stock in a reclassification of the Common Stock; then, in any such case, each share of Common Stock outstanding following such dividend, subdivision, combination or reclassification shall continue to have a Right associated therewith, and the Exercise Price following any such event shall be proportionately adjusted to equal the result obtained by multiplying the Exercise Price immediately prior to such event by a fraction, the numerator of which shall be the total number of shares of Common Stock outstanding immediately prior to the occurrence of the event and the denominator of which shall be the total number of shares of Common Stock outstanding immediately following the occurrence of such event. The adjustment provided for in the preceding sentence shall be made successively whenever such a dividend is declared or such a subdivision, combination or reclassification is effected.
(c) Upon receipt of a Rights Certificate representing exercisable Rights, with the form of election to purchase and the certificate duly executed, accompanied by payment in the manner described below, with respect to each Right so exercised, of the Exercise Price for the shares one hundredth of Common a share of Series One Preferred Stock (or, following a Triggering Event, other securities, cash or other assets, as the case may be) to be purchased thereby, and of an amount equal to any applicable transfer tax required to be paid by the holder in accordance with Section 6 hereof or evidence satisfactory to the Company of payment of such tax), the Rights Agent shall, subject to Section 20(j) hereof, thereupon promptly:
(i) requisition from the transfer agent for the Common Stock certificates for such number of shares of Common Stock as are to be purchased, and the Company will direct the transfer agent to comply with such request;
(ii) requisition from the Company the amount of cash, if any, to be paid in lieu of fractional shares in accordance with Section 14 hereof;
(iii) after receipt of such Common Stock certificates, cause the same to be delivered to or upon the order of the registered holder of such Rights Certificate, registered in such name or names as may be designated by such holder; and
(iv) after receipt of such cash, if any, deliver the same to or upon the order of the registered holder of such Rights Certificate. In the event that the Company is obligated to issue other securities of the Company, pay cash and/or distribute other property pursuant to Section 11(a) hereof, the Company will make all arrangements necessary so that such other securities, cash and/or other property are available for distribution by the Rights Agent, if and when appropriate. The payment of the Exercise Price (as such amount may be reduced pursuant to Section 11(a)(iii) hereof) may be made in cash or by certified or bank check or bank draft payable to the order of the Company.
(d) In the event of an exercise of the Rights by a holder pursuant to Section 11(a)(ii) hereof, the Rights Agent shall return such Rights Certificate to the registered holder thereof after imprinting, stamping, or otherwise indicating thereon that the rights represented by such Rights Certificate no longer include the rights provided by Section 11(a)(ii) of the Rights Agreement. In addition, in the event that the registered holder of any Rights Certificate shall exercise less than all the Rights evidenced thereby, a new Rights Certificate evidencing the Rights remaining unexercised (and, if some of the Rights exercised were exercised pursuant to Section 11(a)(ii), indicating by imprint, stamp or otherwise the number of Rights remaining which continue to include rights provided by Section 11(a)(ii)) shall be issued by the Rights Agent and delivered to, or upon the order of, the registered holder of such Rights Certificate, registered in such name or names as may be designated by such holder, subject to the provisions of Section 14 hereof.
(e) Notwithstanding anything in this Agreement to the contrary, from and after the first occurrence of a Section 11(a)(ii) Event, any Rights beneficially owned by any of the Persons described below 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:
(i) an Acquiring Person or an Affiliate or Associate of an Acquiring Person;
(ii) a transferee of an Acquiring Person (or of any such Affiliate or Associate) which becomes a transferee after the Acquiring Person becomes such; or
(iii) a transferee of an Acquiring Person (or of any such Affiliate or Associate) 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 Affiliate or Associate) to holders of equity interests therein, or to any Person with whom such Acquiring Person (or Affiliate or Associate) has any continuing agreement, arrangement or understanding regarding the transferred Rights, shares of Common Stock, or the Company, or (B) a transfer which a majority of the Board 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). The Company shall use all reasonable efforts to ensure that the provisions of this Section 7(e) and Section 4(b) hereof are complied with, but shall have no liability to any holder of Rights or any other Person as a result of its failure to make any determination under this Section 7(e) or such Section 4(b) with respect to an Acquiring Person or its Affiliates, Associates or transferees.
(f) Notwithstanding anything in this Agreement or any Rights Certificate 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 by such registered holder unless such registered holder shall have (i) completed and executed the certificate following the form of election to purchase set forth on the reverse side of the Rights Certificate surrendered for such exercise, and (ii) provided such additional evidence of the identity of the Beneficial Owner or former Beneficial Owner (or Affiliates or Associates thereof) of the Rights represented by such Rights Certificate as the Company shall reasonably request.applicable
Appears in 1 contract
Exercise of Rights; Exercise Price; Expiration Date of Rights. (ai) At The Rights shall not be exercisable until, and shall become exercisable on, the Distribution Date (unless otherwise provided herein, including, without limitation, the restrictions on exercisability set forth in Sections 7(a)(ii), 7(e), 23(a) and 27(b) hereof). Except as otherwise provided herein, the Rights may be exercised, in whole or in part, at any time after commencing with the Exercisability Distribution Date upon surrender of the Right Certificate, with the form of election to purchase and certificate on the reverse side thereof duly executed (with signatures duly guaranteed), to the Rights Agent at the principal office of the Rights Agent in [Philadelphia, Pennsylvania], together with payment of the Exercise Price with respect to each Right exercised, subject to adjustment as hereinafter provided, at or prior to the close of business on the earlier of (i) the Close of Business on February 7March 31, 2006 2009 (the "Final Expiration Date"), ) or (ii) the time at date on which the Rights are redeemed as provided in Section 23 hereof or the date on which the Rights are exchanged as provided in Section 27 hereof (the "Redemption Date") (the earlier of (i) and (ii) being the "Expiration Date").
(ii) Notwithstanding any provision of this Rights Agreement to the contrary, no Right shall be exercisable by the registered holder thereof for a number of Shares in excess of the maximum number of Shares that could be acquired by the holder of such Right without violating any Rights Certificate mayprovision of Paragraph 9 of the Trust Agreement, subject relating to limitations on the ownership of Shares. Any holder who exercises a Right for a number of Shares that violates the preceding sentence shall be deemed never to have had an interest in the excess Shares purportedly purchased upon such exercise. The Board of Trustees shall have the power to take such actions as they deem necessary or appropriate to administer the provisions of this Section 7(e7(a)(ii) hereof, exercise the Rights evidenced thereby in whole or in part upon surrender of the Rights Certificate, with the form of election to purchase a fair and the certificate on the reverse side thereof duly executed, to the Rights Agent at the office of the Rights Agent designated for such purpose, together with payment of the aggregate Exercise Price (as hereinafter defined) for the number of shares of Common Stock (or, following a Triggering Event, other securities, cash or other assets, as the case may be) for which such surrendered Rights are then exercisableequitable manner.
(b) The purchase price Exercise Price shall initially be $70.00 for each one tenth Share purchasable pursuant to the exercise of one share a Right. The Exercise Price and the number of Common Stock Shares (or fraction of a Share) or other securities to be acquired upon exercise of the Rights initially a Right shall be $80.00, subject to adjustment from time to time as provided in the next sentence and in Sections 11 and 13(a) hereof (such purchase price, as so adjusted, being the "13 hereof. The Exercise Price"), and Price shall be payable in lawful money of the United States of America, in accordance with paragraph (c) below. Anything in this Agreement to the contrary notwithstanding, in the event that, at any time after the date of this Agreement and prior to the Exercisability Date, the Company shall (i) declare a dividend on the Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock, (iii) combine the outstanding Common Stock into a smaller number of shares, or (iv) issue any shares of its capital stock in a reclassification of the Common Stock; then, in any such case, each share of Common Stock outstanding following such dividend, subdivision, combination or reclassification shall continue to have a Right associated therewith, and the Exercise Price following any such event shall be proportionately adjusted to equal the result obtained by multiplying the Exercise Price immediately prior to such event by a fraction, the numerator of which shall be the total number of shares of Common Stock outstanding immediately prior to the occurrence of the event and the denominator of which shall be the total number of shares of Common Stock outstanding immediately following the occurrence of such event. The adjustment provided for in the preceding sentence shall be made successively whenever such a dividend is declared or such a subdivision, combination or reclassification is effected.
(c) Upon Except as otherwise provided herein, upon receipt of a Rights Right Certificate representing exercisable Rights, Rights with the form of election to purchase and the certificate duly executed, accompanied by payment in the manner described below, with respect to each Right so exercised, of the aggregate Exercise Price for the shares of Common Stock (or, following a Triggering Event, other securities, cash or other assets, as the case may be) Shares to be purchased thereby, and of an amount equal to any applicable transfer tax Transfer Tax required to be paid by the holder of such Right Certificate in accordance with Section 6 9 hereof by certified check, cashier's check, bank draft or evidence satisfactory money order payable to the Company of payment of such tax)or the Rights Agent, the Rights Agent shall, subject to Section 20(j) hereof, shall thereupon promptly:
promptly (i) requisition from the any transfer agent for of the Common Stock Shares one or more certificates for such representing the number of shares of Common Stock as are Shares to be so purchased, and the Company will direct the hereby authorizes and directs such transfer agent to comply with all such request;
requests, (ii) as provided in Section 14(b), at the election of the Company, cause depositary receipts to be issued in lieu of fractional Shares, (iii) if the election provided for in the immediately preceding clause (ii) has not been made, requisition from the Company the amount of cash, if any, cash to be paid in lieu of the issuance of fractional shares Shares in accordance with Section 14 14(b) hereof;
, (iiiiv) after receipt of such Common Stock certificatesShare certificates and/or depositary receipts, cause the same to be delivered to or upon the order of the registered holder of such Rights Certificate, registered in such name or names as may be designated by such holder; and
(iv) after receipt of such cash, if any, deliver the same to or upon the order of the registered holder of such Rights Certificate. In the event that the Company is obligated to issue other securities of the Company, pay cash and/or distribute other property pursuant to Section 11(a) hereof, the Company will make all arrangements necessary so that such other securities, cash and/or other property are available for distribution by the Rights Agent, if and when appropriate. The payment of the Exercise Price (as such amount may be reduced pursuant to Section 11(a)(iii) hereof) may be made in cash or by certified or bank check or bank draft payable to the order of the Company.
(d) In the event of an exercise of the Rights by a holder pursuant to Section 11(a)(ii) hereof, the Rights Agent shall return such Rights Certificate to the registered holder thereof after imprinting, stamping, or otherwise indicating thereon that the rights represented by such Rights Certificate no longer include the rights provided by Section 11(a)(ii) of the Rights Agreement. In addition, in the event that the registered holder of any Rights Certificate shall exercise less than all the Rights evidenced thereby, a new Rights Certificate evidencing the Rights remaining unexercised (and, if some of the Rights exercised were exercised pursuant to Section 11(a)(ii), indicating by imprint, stamp or otherwise the number of Rights remaining which continue to include rights provided by Section 11(a)(ii)) shall be issued by the Rights Agent and delivered to, or upon the order of, the registered holder of such Rights Right Certificate, registered in such name or names as may be designated by such holder, and (v) when appropriate, after receipt, promptly deliver such cash to or upon the order of the registered holder of such Right Certificate; provided, however, that in the case of a purchase of securities, other than the Shares, pursuant to Section 13 hereof, the Rights Agent shall promptly take the appropriate actions corresponding in such case to that referred to in the foregoing clauses (i) through (v) of this Section 7(c). Notwithstanding the foregoing provisions of this Section 7(c), the Company may suspend the issuance of Shares or other securities upon exercise of a Right for a reasonable period, not in excess of 90 days, during which the Company seeks to register under the Securities Act of 1933, as amended (the "Act"), and any applicable securities law of any other jurisdiction, the Shares or such other securities to be issued pursuant to the Rights; provided, however, that nothing contained in this Section 7(c) shall relieve the Company of its obligations under Section 9(c) hereof.
(d) In case the registered holder of any Right Certificate shall exercise less than all the Rights evidenced thereby, a new Right Certificate evidencing Rights equivalent to the exercisable Rights remaining unexercised shall be issued by the Rights Agent to the registered holder of such Right Certificate or his assign, subject to the provisions of Section 14 Sections 7(a)(i) and 14(b) hereof.
(e) Notwithstanding anything in any provision of this Rights Agreement to the contrary, from and after the time (the "invalidation time") when any Person first occurrence of a Section 11(a)(ii) Eventbecomes an Acquiring Person, any Rights beneficially owned that are Beneficially Owned by (x) such Acquiring Person (or any of the Persons described below shall be null and void without any further action, and no holder Associate or Affiliate of such Rights shall have any rights whatsoever with respect to such Rights, whether under any provision of this Agreement or otherwise:
(i) an Acquiring Person or an Affiliate or Associate of an Acquiring Person;
), (iiy) a transferee of an such Acquiring Person (or of any such Affiliate Associate or AssociateAffiliate) which who becomes a transferee after the Acquiring Person becomes such; or
invalidation time, or (iiiz) a transferee of an such Acquiring Person (or of any such Affiliate Associate or AssociateAffiliate) which who becomes a transferee prior to or concurrently with the Acquiring Person becoming such and which receives such Rights invalidation time pursuant to either (AI) a transfer (whether or not for consideration) from the Acquiring Person (or any such Affiliate Associate or AssociateAffiliate) to holders of its equity interests therein, securities or to any Person with whom such Acquiring Person (or Affiliate or Associate) it has any continuing agreement, arrangement or understanding regarding the transferred Rights, shares of Common Stock, or the Company, or (BII) a transfer which a majority of the Board of Trustees has determined to be is part of a plan, arrangement or understanding which has as a primary the purpose or effect of avoiding the avoidance provisions of this Section 7(e), and subsequent transferees of such Persons, shall be null and void without any further action and any holder of such Rights shall thereafter have no rights whatsoever with respect to such Rights under any provision of this Rights Agreement or otherwise. The Company shall use all reasonable efforts to ensure insure that the provisions of this Section 7(e) and Section 4(b) hereof are complied with, but shall have no liability to any holder of Rights Right Certificates or any other Person as a result of its failure to make any determination under this Section 7(e) or such Section 4(b) determinations with respect to an Acquiring Person or its Affiliates, Associates or transfereestransferees hereunder. No Right Certificate shall be issued pursuant to Section 3 hereof that represents Rights beneficially owned by an Acquiring Person or any Associate or Affiliate thereof whose Rights would be null and void pursuant to the provisions of this Section 7(e); no Right Certificate shall be issued at any time upon the transfer of any Rights to an Acquiring Person whose Rights would be null and void pursuant to the provisions of this Section 7(e) or any Associate or Affiliate thereof or to any nominee of such Acquiring Person, Associate or Affiliate; and any Right Certificate delivered to the Rights Agent for transfer to an Acquiring Person (or an Associate or Affiliate of such Acquiring Person) whose Rights would be null and void pursuant to the provisions of this Section 7(e) shall be canceled.
(f) Notwithstanding anything in this Agreement or any Rights Certificate 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 by such registered holder unless such registered holder shall have (i) completed and executed the certificate following the form of election to purchase as set forth on the reverse side of the Rights Certificate surrendered for such exercise, and (ii) provided such additional evidence of the identity of the Beneficial Owner or former Beneficial Owner (or Affiliates or Associates thereof) of the Rights represented by such Rights Certificate as the Company shall reasonably request.in this
Appears in 1 contract
Sources: Rights Agreement (Pennsylvania Real Estate Investment Trust)
Exercise of Rights; Exercise Price; Expiration Date of Rights. (a) At any time after the Exercisability Date and prior Subject to the earlier of (iSection 7(e) the Close of Business on February 7, 2006 (the "Final Expiration Date"), or (ii) the time at which the Rights are redeemed as provided in Section 23 hereof (the "Redemption Date") (the earlier of (i) and (ii) being the "Expiration Date")hereof, the registered holder of any Rights Certificate may, subject to the provisions of Section 7(e) hereof, may exercise the Rights evidenced thereby (except as otherwise provided herein including, without limitation, in the restrictions on exercisability set forth in Sections 9(c), 11(a)(iii) and 23(a) hereof) in whole or in part at any time after the Distribution Date upon surrender of the Rights Certificate, with the form of election to purchase and the certificate on the reverse side thereof properly completed and duly executed, to the Rights Agent at the office of the Rights Agent designated for such purpose, together with payment of the aggregate Exercise Price (as hereinafter defined) for the number each one one-thousandth of shares a share of Common Preferred Stock (or, following a Triggering Eventor Common Stock, other securities, cash or other assets, as the case may be) for as to which such surrendered the Rights are then exercisableexercised prior to the earliest of (i) the Close of Business on April 15, 2021 or such later date as may be established by the Board prior to the expiration of the Rights as long as the extension is submitted to the stockholders of the Company for ratification at the next annual meeting of stockholders succeeding such extension (the “Final Expiration Date”); (ii) the time at which the Rights are redeemed pursuant to Section 23 hereof; (iii) the time at which the Rights are exchanged pursuant to Section 24 hereof and (iv) the closing of any merger or other acquisition transaction involving the Company pursuant to an agreement of the type described in Section 13(f) at which time the Rights are terminated (the earliest of (i) – (iv) being herein referred to as the “Expiration Date”).
(b) Each Right shall entitle the registered holder thereof to purchase one one-thousandth of a share of Preferred Stock. The purchase price Exercise Price for each one tenth one-thousandth of one a share of Common Preferred Stock upon pursuant to the exercise of the Rights initially a Right shall be initially $80.0090.00, and shall be subject to adjustment from time to time as provided in the next sentence and in Sections 11 and 13(a) 13 hereof (such purchase price, as so adjusted, being and payable in lawful money of the "Exercise Price"), and shall be payable United States in accordance with paragraph (c) below. Anything in this Agreement to the contrary notwithstanding, in the event that, at any time after the date of this Agreement and prior to the Exercisability Date, the Company shall (i) declare a dividend on the Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock, (iii) combine the outstanding Common Stock into a smaller number of shares, or (iv) issue any shares of its capital stock in a reclassification of the Common Stock; then, in any such case, each share of Common Stock outstanding following such dividend, subdivision, combination or reclassification shall continue to have a Right associated therewith, and the Exercise Price following any such event shall be proportionately adjusted to equal the result obtained by multiplying the Exercise Price immediately prior to such event by a fraction, the numerator of which shall be the total number of shares of Common Stock outstanding immediately prior to the occurrence of the event and the denominator of which shall be the total number of shares of Common Stock outstanding immediately following the occurrence of such event. The adjustment provided for in the preceding sentence shall be made successively whenever such a dividend is declared or such a subdivision, combination or reclassification is effectedSection 7.
(c) Upon receipt of a Rights Certificate representing exercisable Rights, with the form of election to purchase and the certificate properly completed and duly executed, accompanied by payment in the manner described belowpayment, with respect to each Right so exercised, of the Exercise Price for the shares per one one-thousandth of Common a share of Preferred Stock (or, following a Triggering Eventor Common Stock, other securities, cash or other assets, as the case may be) to be purchased thereby, and of an amount equal to any applicable transfer tax required to be paid by the holder in accordance with Section 6 hereof or evidence satisfactory to the Company of payment of such tax)governmental charge, then the Rights Agent shall, subject to Section 20(j18(j) hereof, thereupon promptly:
promptly (i) (A) requisition from the any transfer agent for of the Common Preferred Stock certificates for representing such number of one one-thousandths of a share of Preferred Stock (or fractions of shares that are integral multiples of one one-thousandth of a share of Preferred Stock) as are to be purchased and the Company shall direct its transfer agent to comply with all such requests; or (B) if the Company has elected to deposit the total number of shares of Common Preferred Stock issuable upon exercise of the Rights hereunder with a depositary agent, requisition from the depositary agent depositary receipts representing such number of one one-thousandths of a share of Preferred Stock as are to be purchasedpurchased (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 will shall direct the transfer agent depositary to comply with all such request;
requests; (ii) if necessary to comply with this Agreement, requisition from the Company the amount of cash, if any, to be paid in lieu of fractional shares in accordance with Section 14 hereof;
hereof and, after receipt thereof, deliver such cash to or upon the order of the registered holder of such Rights Certificate; and (iii) after receipt of such Common Stock certificatescertificates or such depositary receipts, cause the same to be delivered to or upon the order of the registered holder of such Rights Certificate, registered in such name or names as may be designated by such holder; and
(iv) after receipt of such cash, if any, deliver the same to or upon the order of the registered holder of such Rights Certificate. In the event that the Company is obligated to issue Common Stock or other securities of the Company, pay cash and/or distribute other property assets pursuant to Section 11(a) hereof, the Company will shall make all arrangements necessary so that such Common Stock, other securities, cash and/or other property assets are available for distribution by the Rights Agent, if and when appropriatenecessary to comply with this Agreement, and until so received, the Rights Agent shall have no duties or obligations with respect to such securities, cash and/or other assets. The payment of the Exercise Price (as such amount may be reduced pursuant to Section 11(a)(iii) hereof) may be made in cash or cash, by certified or bank check check, wire transfer, electronic transfer or bank draft money order payable to the order of the Company.
(d) In the event of an exercise of the Rights by a holder pursuant to Section 11(a)(ii) hereof, the Rights Agent shall return such Rights Certificate to the registered holder thereof after imprinting, stamping, or otherwise indicating thereon that the rights represented by such Rights Certificate no longer include the rights provided by Section 11(a)(ii) of the Rights Agreement. In addition, in the event that the registered holder of any Rights Certificate shall exercise exercises less than all the Rights evidenced thereby, a new Rights Certificate evidencing the Rights remaining unexercised (and, if some of the Rights exercised were exercised pursuant to Section 11(a)(ii), indicating by imprint, stamp or otherwise the number of Rights remaining which continue to include rights provided by Section 11(a)(ii)) shall be issued by the Rights Agent and delivered to, or upon the order of, the registered holder of such Rights Certificateholder, registered in such name or names as may be designated by such holder, subject to the provisions of Section Sections 6 and 14 hereof.
(e) Notwithstanding anything in this Agreement to the contrary, from and after the first occurrence of a Section 11(a)(ii) Flip-In Event, any Rights beneficially owned Beneficially Owned by any of the Persons described below 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:
(i) an Acquiring Person or an Affiliate or Associate a Related Person of an Acquiring Person;
; (ii) a transferee of an Acquiring Person (or of any such Affiliate or AssociateRelated Person) which that becomes a transferee after the Acquiring Person becomes such; or
or (iii) a transferee of an Acquiring Person (or of any such Affiliate or AssociateRelated Person) which that becomes a transferee prior to or concurrently with the Acquiring Person becoming such and which that receives such Rights pursuant to either (A) a transfer (whether or not for consideration) from the Acquiring Person (or any such Affiliate or AssociateRelated Person) to holders of equity interests therein, in such Acquiring Person (or any such Related Person) or to any Person with whom such the Acquiring Person (or Affiliate or Associateany such Related Person) has any continuing written or oral plan, agreement, arrangement or understanding regarding the transferred Rights, shares of Common Stock, Stock or the Company, ; or (B) a transfer which a majority of that the Board has determined in good faith to be part of a plan, agreement, arrangement or understanding which that has as a primary purpose or effect the avoidance of this Section 7(e), shall be null and void without any further action, and any holder of such Rights thereafter shall have no voting rights, powers, designations, preferences or any other relative, participating, optional or other special rights whatsoever with respect to such Rights, whether under any provision of this Agreement, the Rights Certificates or otherwise (including, without limitation, the rights and preferences pursuant to Sections 7, 11, 13, 23 and 24 hereof). The Company shall use all commercially reasonable efforts to ensure that compliance with the provisions of this Section 7(e) and Section 4(b) hereof are complied withhereof, but neither the Company nor the Rights Agent has or shall have no any liability to any holder of Rights or any other Person as a result of its the Company’s failure to make any determination under this Section 7(e) or such Section 4(b) with respect to an Acquiring Person or its Affiliates, Associates Related Persons or transfereestransferees hereunder.
(f) Notwithstanding anything in this Agreement or any Rights Certificate to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake take any action with respect to a registered holder upon the occurrence of any purported transfer or exercise as set forth in this Section 7 by such registered holder unless such registered holder shall have has (i) properly completed and duly executed the certificate following the form of assignment or the form of election to purchase set forth on the reverse side of the Rights Certificate surrendered for such transfer or exercise, and (ii) provided such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner (or Affiliates or Associates thereofOwner) of the Rights represented by such Rights Certificate or Related Persons thereof as the Company or the Rights Agent reasonably requests.
(g) Except for those provisions herein that expressly survive the termination of this Agreement, this Agreement shall reasonably requestterminate upon the earlier of the Expiration Date and such time as all outstanding Rights have been exercised, redeemed or exchanged hereunder.
Appears in 1 contract
Exercise of Rights; Exercise Price; Expiration Date of Rights. (a) At any time after the Exercisability Date and prior Subject to the earlier of (iSection 7(e) the Close of Business on February 7, 2006 (the "Final Expiration Date"), or (ii) the time at which the Rights are redeemed as provided in Section 23 hereof (the "Redemption Date") (the earlier of (i) and (ii) being the "Expiration Date")hereof, the registered holder of any Rights Right Certificate may, subject to the provisions of Section 7(e) hereof, may exercise the Rights evidenced thereby (except as otherwise provided herein including, without limitation, in the restrictions on exercisability set forth in Sections 9(c), 11(a)(iii) and 23(b) hereof) in whole or in part at any time after the Distribution Date upon surrender of the Rights Right Certificate, with the form of election to purchase and the certificate on the reverse side thereof properly completed and duly executed, to the Rights Agent at the office of the Rights Agent designated for such purpose, together with payment of the aggregate Exercise Price (as hereinafter defined) for the number each one one-millionth of shares a share of Common Preferred Stock (or, following a Triggering Eventor Common Stock, other securities, cash or other assets, as the case may be) for as to which such surrendered the Rights are then exercisableexercised prior to the earliest of (i) the Close of Business on August 7, 2022 or such later date as may be established by the Board of Directors of the Company prior to the expiration of the Rights as long as the extension is submitted to the stockholders of the Company for ratification at the next annual meeting of stockholders succeeding such extension (the “Final Expiration Date”); (ii) the time at which the Rights are redeemed pursuant to Section 23 hereof (the “Redemption Date”); (iii) the time at which the Rights are exchanged pursuant to Section 24 hereof (the “Exchange Date”); (iv) the Close of Business on the first day after the Company’s 2020 annual meeting of stockholders (including any adjournments or postponements thereof), if Stockholder Approval has not been obtained on or prior to the Close of Business on the first day after the Company’s 2020 annual meeting of stockholders; (v) the Close of Business on the effective date of the repeal of Section 382 of the Code or any successor statute if the Board of Directors of the Company determines that this Agreement is no longer necessary or desirable for the preservation of Tax Benefits; and (vi) the Close of Business on the first day of a taxable year of the Company to which the Board of Directors of the Company determines that no Tax Benefits are available to be carried forward (the earliest of (i) through (vi) being herein referred to as the “Expiration Date”).
(b) The purchase exercise price (the “Exercise Price”) for each one tenth one-millionth of one a share of Common Preferred Stock upon pursuant to the exercise of the Rights a Right shall initially be $48.00, shall be $80.00, subject to adjustment from time to time as provided in the next sentence and in Sections Section 11 and 13(a) Section 13 hereof (such purchase price, as so adjusted, being the "Exercise Price"), and shall be payable in lawful money of the United States of America in accordance with paragraph Section 7(c) below.
(c) below. Anything in this Agreement to As promptly as practicable following the contrary notwithstanding, in the event that, at any time after the date of this Agreement and prior to the Exercisability Distribution Date, the Company shall deposit with a corporation, trust, bank or similar institution in good standing organized under the laws of the United States or any State of the United States, which is authorized under such laws to exercise corporate trust or stock transfer powers and is subject to supervision or examination by a federal or state authority (i) declare a dividend on such institution is hereinafter referred to as the Common Stock payable in “Depositary Agent”), certificates representing the shares of Common Stock, (ii) subdivide Preferred Stock that may be acquired upon exercise of the outstanding Common Stock, (iii) combine Rights and the outstanding Common Stock Company shall cause such Depositary Agent to enter into a smaller number of shares, or (iv) an agreement pursuant to which the Depositary Agent shall issue any receipts representing interests in the shares of its capital stock in a reclassification of the Common Stock; then, in any such case, each share of Common Preferred Stock outstanding following such dividend, subdivision, combination or reclassification shall continue to have a Right associated therewith, and the Exercise Price following any such event shall be proportionately adjusted to equal the result obtained by multiplying the Exercise Price immediately prior to such event by a fraction, the numerator of which shall be the total number of shares of Common Stock outstanding immediately prior to the occurrence of the event and the denominator of which shall be the total number of shares of Common Stock outstanding immediately following the occurrence of such eventso deposited. The adjustment provided for in the preceding sentence shall be made successively whenever such a dividend is declared or such a subdivision, combination or reclassification is effected.
(c) Upon receipt of a Rights Right Certificate representing exercisable Rights, with the form of election to purchase and the certificate on the reverse side thereof duly executed, accompanied by payment in the manner described below, with respect to each Right so exercised, of the Exercise Price for the shares of Common Stock (or, following a Triggering Event, other securities, cash or other assets, as the case may be) to be purchased thereby, and of an amount equal to any applicable transfer tax required to be paid (as determined by the holder in accordance with Section 6 hereof Rights Agent) by certified check or evidence satisfactory bank draft payable to the order of the Company of payment of such tax)or by money order, the Rights Agent shall, subject to Section 20(j20(k) and Section 14(b) hereof, thereupon promptly:
promptly (i) requisition from the transfer agent Depositary Agent (or make available, if the Rights Agent is the Depositary Agent) depositary receipts or certificates for the Common Stock certificates for such number of shares one one-millionth of Common a share of Preferred Stock as are to be purchased, purchased and the Company will direct hereby irrevocably authorizes the transfer agent Depositary Agent to comply with all such request;
requests, (ii) when appropriate, requisition from the Company the amount of cash, if any, to be paid in lieu of issuance of fractional shares in accordance with Section 14 hereof;
, (iii) promptly after receipt of such Common Stock certificatescertificates or depositary receipts, cause the same to be delivered to or upon the order of the registered holder of such Rights Right Certificate, registered in such name or names as may be designated by such holder; and
holder and (iv) when appropriate, after receipt of each certificate or depositary receipts promptly deliver such cash, if any, deliver the same cash to or upon the order of the registered holder of such Rights Right Certificate. In the event that the Company is obligated to issue other securities of the Company (including shares of Common Stock of the Company), pay cash and/or or distribute other property pursuant to Section 11(a) hereof, the Company will make all arrangements necessary so that such other securities, cash and/or or other property are available for distribution by the Rights Agent, if and when appropriate. The payment of the Exercise Price (as such amount may be reduced pursuant to Section 11(a)(iii) hereof) may be made in cash or by certified or bank check or bank draft payable to the order of the Company, or by money order or wire transfer of immediately available funds to the account of the Company (provided that notice of such wire transfer shall be given by the holder of the related Right to the Rights Agent).
(d) In the event of an exercise of the Rights by a holder pursuant to Section 11(a)(ii) hereof, the Rights Agent shall return such Rights Certificate to the registered holder thereof after imprinting, stamping, or otherwise indicating thereon that the rights represented by such Rights Certificate no longer include the rights provided by Section 11(a)(ii) of the Rights Agreement. In addition, in the event that case the registered holder of any Rights Right Certificate shall exercise less than all the Rights evidenced thereby, a new Rights Right Certificate evidencing Rights equivalent to the Rights remaining unexercised (and, if some of the Rights exercised were exercised pursuant to Section 11(a)(ii), indicating by imprint, stamp or otherwise the number of Rights remaining which continue to include rights provided by Section 11(a)(ii)) shall be issued by the Rights Agent and delivered to, or upon the order of, to the registered holder of such Rights Certificate, registered in such name Right Certificate or names as may be designated by such holderto his duly authorized assigns, subject to the provisions of Section 14 hereof.
(e) Notwithstanding anything in this Agreement to the contrary, from and after the first occurrence of a Section 11(a)(ii) Event or Section 13 Event, any Rights beneficially owned 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 Associate or Affiliate of an Acquiring Person) who becomes a transferee after the Acquiring Person becomes such or (iii) a transferee of an Acquiring Person (or of any Associate or Affiliate of an Acquiring Person) who becomes a transferee prior to or concurrently with the Acquiring Person becoming such and receives such Rights pursuant to either (A) a transfer (whether or not for consideration) from the Acquiring Person to holders of equity interests in such Acquiring Person or to any Person with whom the Acquiring Person has any continuing agreement, arrangement or understanding (whether or not in writing) regarding the transferred Rights, the shares of Common Stock of the Persons described below Company associated with such Rights or the Company, or (B) a transfer which the Board of Directors of the Company has determined is part of a plan, arrangement or understanding which has as a primary purpose or effect the avoidance of this Section 7(e), shall be null and void without any further action, 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:
(i) an Acquiring Person or an Affiliate or Associate of an Acquiring Person;
(ii) a transferee of an Acquiring Person (or of any such Affiliate or Associate) which becomes a transferee after the Acquiring Person becomes such; or
(iii) a transferee of an Acquiring Person (or of any such Affiliate or Associate) 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 Affiliate or Associate) to holders of equity interests therein, or to any Person with whom such Acquiring Person (or Affiliate or Associate) has any continuing agreement, arrangement or understanding regarding the transferred Rights, shares of Common Stock, or the Company, or (B) a transfer which a majority of the Board 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). The Company shall use all reasonable efforts to ensure that the provisions of this Section 7(e) and Section 4(b) hereof are complied with, but shall have no liability to any holder of Rights Right Certificates or any other Person as a result of its failure to make any determination under this Section 7(e) or such Section 4(b) determinations with respect to an Acquiring Person or its Affiliates, any Affiliates or Associates of an Acquiring Person or transfereesany transferee of any of them hereunder.
(f) Notwithstanding anything in this Agreement or any Rights Certificate to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action with respect to a registered holder of Rights upon the occurrence of any purported exercise by such registered holder as set forth in this Section 7 unless such registered holder shall have (i) completed and executed signed the certificate following contained in the form of election to purchase set forth on the reverse side of the Rights Right Certificate surrendered for such exercise, and (ii) provided such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner (Owner) or Affiliates or Associates thereof) of the Rights represented by such Rights Certificate thereof as the Company shall reasonably request.
Appears in 1 contract
Sources: Section 382 Rights Agreement (GTT Communications, Inc.)
Exercise of Rights; Exercise Price; Expiration Date of Rights. (a) At any time after the Exercisability Date and prior Subject to the earlier of (iSection 7(e) the Close of Business on February 7, 2006 (the "Final Expiration Date"), or (ii) the time at which the Rights are redeemed as provided in Section 23 hereof (the "Redemption Date") (the earlier of (i) and (ii) being the "Expiration Date")hereof, the registered holder of any Rights Certificate may, subject to the provisions of Section 7(e) hereof, may exercise the Rights evidenced thereby (except as otherwise provided herein including, without limitation, in the restrictions on exercisability set forth in Sections 9(c), 11(a)(iii) and 23(a) hereof) in whole or in part at any time after the Distribution Date upon surrender of the Rights Certificate, with the form of election to purchase and the certificate on the reverse side thereof properly completed and duly executed, to the Rights Agent at the office of the Rights Agent designated for such purpose, together with payment of the aggregate Exercise Price (as hereinafter defined) for the number each one one-thousandth of shares a share of Common Preferred Stock (or, following a Triggering Eventor Common Stock, other securities, cash or other assets, as the case may be) for as to which such surrendered the Rights are then exercisableexercised prior to the earliest of (i) the Close of Business on March 23, 2023 or such later date as may be established by the Board prior to the expiration of the Rights as long as the extension is submitted to the stockholders of the Company for ratification at the next annual meeting of stockholders succeeding such extension (the “Final Expiration Date”); (ii) the time at which the Rights are redeemed pursuant to Section 23 hereof (the “Redemption Date”); (iii) the time at which the Rights are exchanged pursuant to Section 24 hereof (the “Exchange Date”); (iv) the closing of any merger or other acquisition transaction involving the Company pursuant to an agreement of the type described in Section 13(f) at which time the Rights are terminated; (the “Early Expiration Date”); (vi) the Close of Business on the effective date of the repeal of Section 382 of the Code if the Board determines that this Agreement is no longer necessary or desirable for the preservation of Tax Benefits; and (vii) the Close of Business on the first day of a taxable year of the Company to which the Board determines that no Tax Benefits are available to be carried forward (the earliest of (i) - (vii) being herein referred to as the “Expiration Date”).
(b) Each Right shall entitle the registered holder thereof to purchase one one-thousandth of a share of Preferred Stock. The purchase price Exercise Price for each one tenth one-thousandth of one a share of Common Preferred Stock upon pursuant to the exercise of the Rights initially a Right shall be initially $80.00, 5.00 and shall be subject to adjustment from time to time as provided in the next sentence and in Sections 11 and 13(a) 13 hereof (such purchase price, as so adjusted, being and payable in lawful money of the "Exercise Price"), and shall be payable United States in accordance with paragraph (c) below. Anything in this Agreement to the contrary notwithstanding, in the event that, at any time after the date of this Agreement and prior to the Exercisability Date, the Company shall (i) declare a dividend on the Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock, (iii) combine the outstanding Common Stock into a smaller number of shares, or (iv) issue any shares of its capital stock in a reclassification of the Common Stock; then, in any such case, each share of Common Stock outstanding following such dividend, subdivision, combination or reclassification shall continue to have a Right associated therewith, and the Exercise Price following any such event shall be proportionately adjusted to equal the result obtained by multiplying the Exercise Price immediately prior to such event by a fraction, the numerator of which shall be the total number of shares of Common Stock outstanding immediately prior to the occurrence of the event and the denominator of which shall be the total number of shares of Common Stock outstanding immediately following the occurrence of such event. The adjustment provided for in the preceding sentence shall be made successively whenever such a dividend is declared or such a subdivision, combination or reclassification is effectedSection 7.
(c) Upon receipt of a Rights Certificate representing exercisable Rights, with the form of election to purchase and the certificate properly completed and duly executed, accompanied by written confirmation from the Company of receipt of payment in the manner described below, with respect to each Right so exercised, of the Exercise Price for the shares per one one-thousandth of Common a share of Preferred Stock (or, following a Triggering Eventor Common Stock, other securities, cash or other assets, as the case may be) to be purchased thereby, and of an amount equal to any applicable transfer tax required to be paid by the holder in accordance with Section 6 hereof or evidence satisfactory to the Company of payment of such tax)governmental charge, then the Rights Agent shall, subject to Section 20(j18(j) hereof, thereupon promptly:
promptly (i) (A) requisition from the any transfer agent for of the Common Preferred Stock certificates for representing such number of one one-thousandths of a share of Preferred Stock (or fractions of shares that are integral multiples of one one-thousandth of a share of Preferred Stock) as are to be purchased and the Company shall direct its transfer agent to comply with all such requests; or (B) if the Company has elected to deposit the total number of shares of Common Preferred Stock issuable upon exercise of the Rights hereunder with a depositary agent, requisition from the depositary agent depositary receipts representing such number of one one-thousandths of a share of Preferred Stock as are to be purchasedpurchased (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 will shall direct the transfer agent depositary to comply with all such request;
requests; (ii) if necessary to comply with this Agreement, requisition from the Company the amount of cash, if any, to be paid in lieu of fractional shares in accordance with Section 14 hereof;
; (iii) after receipt of such Common Stock certificatescertificates or such depositary receipts, cause the same to be delivered to or upon the order of the registered holder of such Rights Certificate, registered in such name or names as may be designated by such holder; and
and (iv) if necessary to comply with this Agreement, after receipt of thereof, deliver such cash, if any, deliver the same to or upon the order of the registered holder of such Rights Certificate. In the event that the Company is obligated to issue Common Stock or other securities of the Company, pay cash and/or distribute other property assets pursuant to Section 11(a) hereof, the Company will shall make all arrangements necessary so that such Common Stock, other securities, cash and/or other property assets are available for distribution by the Rights Agent, if and when appropriatenecessary to comply with this Agreement, and until so received, the Rights Agent shall have no duties or obligations with respect to such securities, cash and/or other assets. The payment of the Exercise Price (as such amount may be reduced pursuant to Section 11(a)(iii) hereof) may be made in cash cash, by wire payment or by certified or bank check or bank draft money order payable to the order of the Company.
(d) In the event of an exercise of the Rights by a holder pursuant to Section 11(a)(ii) hereof, the Rights Agent shall return such Rights Certificate to the registered holder thereof after imprinting, stamping, or otherwise indicating thereon that the rights represented by such Rights Certificate no longer include the rights provided by Section 11(a)(ii) of the Rights Agreement. In addition, in the event that the registered holder of any Rights Certificate shall exercise exercises less than all the Rights evidenced thereby, a new Rights Certificate evidencing the Rights remaining unexercised (and, if some of the Rights exercised were exercised pursuant to Section 11(a)(ii), indicating by imprint, stamp or otherwise the number of Rights remaining which continue to include rights provided by Section 11(a)(ii)) shall be issued by the Rights Agent and delivered to, or upon the order of, the registered holder of such Rights Certificateholder, registered in such name or names as may be designated by such holder, subject to the provisions of Section Sections 6 and 14 hereof.
(e) Notwithstanding anything in this Agreement to the contrary, from and after the first occurrence of a Section 11(a)(ii) Flip-In Event, any Rights beneficially owned Beneficially Owned by any of the Persons described below 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:
(i) an Acquiring Person or an Affiliate or Associate a Related Person of an Acquiring Person;
; (ii) a transferee of an Acquiring Person (or of any such Affiliate or AssociateRelated Person) which who becomes a transferee after the Acquiring Person becomes such; or
or (iii) a transferee of an Acquiring Person (or of any such Affiliate or AssociateRelated Person) which who becomes a transferee prior to or concurrently with the Acquiring Person becoming such and which who receives such Rights pursuant to either (A) a transfer (whether or not for consideration) from the Acquiring Person (or any such Affiliate or AssociateRelated Person) to holders of equity interests therein, in such Acquiring Person (or any such Related Person) or to any Person with whom such the Acquiring Person (or Affiliate or Associateany such Related Person) has any continuing written or oral plan, agreement, arrangement or understanding regarding the transferred Rights, shares of Common Stock, Stock or the Company, ; or (B) a transfer which a majority of that the Board has determined in good faith to be part of a plan, agreement, arrangement or understanding which that has as a primary purpose or effect the avoidance of this Section 7(e), shall be null and void without any further action, and any holder of such Rights thereafter shall have no rights or preferences whatsoever with respect to such Rights, whether under any provision of this Agreement, the Rights Certificates or otherwise (including, without limitation, rights and preferences pursuant to Sections 7, 11, 13, 23 and 24 hereof). The Company shall use all commercially reasonable efforts to ensure that compliance with the provisions of this Section 7(e) and Section 4(b) hereof are complied withhereof, but shall neither the Company nor the Rights Agent have no any liability to any holder of Rights or any other Person as a result of its the Company’s failure to make any determination under this Section 7(e) or such Section 4(b) with respect to an Acquiring Person or its Affiliates, Associates Related Persons or transfereestransferees hereunder.
(f) Notwithstanding anything in this Agreement or any Rights Certificate to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake take any action with respect to a registered holder upon the occurrence of any purported transfer or exercise as set forth in this Section 7 by such registered holder unless such registered holder shall have has (i) properly completed and duly executed the certificate following the form of election to purchase set forth on the reverse side of the Rights Certificate surrendered for such exercise, and (ii) provided such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner (or Affiliates or Associates thereofOwner) of the Rights represented by such Rights Certificate or Related Persons thereof as the Company or the Rights Agent reasonably requests.
(g) Except for those provisions herein that expressly survive the termination of this Agreement, this Agreement shall reasonably requestterminate upon the earlier of the Expiration Date and such time as all outstanding Rights have been exercised, redeemed or exchanged hereunder.
Appears in 1 contract
Exercise of Rights; Exercise Price; Expiration Date of Rights. (a) At any time after the Exercisability Date and prior to the earlier of (i) the Close of Business on February 7June 2, 2006 2007 (the "Final Expiration Date"), or (ii) the time at which the Rights are redeemed as provided in Section 23 hereof (the "Redemption Date") (the earlier of (i) and (ii) being the "Expiration Date"), the registered holder of any Rights Certificate may, subject to the provisions of Section 7(e) hereof, exercise the Rights evidenced thereby in whole or in part upon surrender of the Rights Certificate, with the form of election to purchase and the certificate on the reverse side thereof duly executed, to the Rights Agent at the office of the Rights Agent designated for such purpose, together with payment of the aggregate Exercise Price (as hereinafter defined) for the total number of shares one one-hundredth of Common a share of Preferred Stock (or, following a Triggering Event, other securities, cash or other assets, as the case may be) for which such surrendered Rights are then exercisable.
(b) The purchase price for each one tenth one-hundredth of one a share of Common Preferred Stock upon exercise of the Rights initially shall be $80.0060, and subject to adjustment from time to time as provided in the next sentence and in Sections 11 and 13(a) hereof (such purchase price, as so adjusted, being the "Exercise Price"), and shall be payable in accordance with paragraph (c) below. Anything in this Agreement to the contrary notwithstanding, in the event that, at any time after the date of this Agreement and prior to the Exercisability Date, the Company shall (i) declare a dividend on the Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock, (iii) combine the outstanding Common Stock into a smaller number of shares, or (iv) issue any shares of its capital stock in a reclassification of the Common Stock; then, in any such case, each share of Common Stock outstanding following such dividend, subdivision, combination or reclassification shall continue to have a Right associated therewith, and the Exercise Price following any such event shall be proportionately adjusted to equal the result obtained by multiplying the Exercise Price immediately prior to such event by a fraction, the numerator of which shall be the total number of shares of Common Stock outstanding immediately prior to the occurrence of the event and the denominator of which shall be the total number of shares of Common Stock outstanding immediately following the occurrence of such event. The adjustment provided for in the preceding sentence shall be made successively whenever such a dividend is declared or such a subdivision, combination or reclassification is effected.
(c) Upon receipt of a Rights Certificate representing exercisable Rights, with the form of election to purchase and the certificate duly executed, accompanied by payment in the manner described below, with respect to each Right so exercised, of the Exercise Price for the shares one hundredth of Common a share of Preferred Stock (or, following a Triggering Event, other securities, cash or other assets, as the case may be) to be purchased thereby, and of an amount equal to any applicable transfer tax required to be paid by the holder in accordance with Section 6 hereof or evidence satisfactory to the Company of payment of such tax), the Rights Agent shall, subject to Section 20(j) hereof, thereupon promptly:
(i) requisition from the transfer agent for the Common Preferred Stock certificates for such total number of shares one one-hundredth of Common a share of Preferred Stock as are to be purchased, and the Company will direct the transfer agent to comply with such request;
(ii) requisition from the Company the amount of cash, if any, to be paid in lieu of fractional shares in accordance with Section 14 hereof;
(iii) after receipt of such Common Preferred Stock certificates, cause the same to be delivered to or upon the order of the registered holder of such Rights Certificate, registered in such name or names as may be designated by such holder; and
(iv) after receipt of such cash, if any, deliver the same to or upon the order of the registered holder of such Rights Certificate. In the event that the Company is obligated to issue other securities of the Company, pay cash and/or distribute other property pursuant to Section 11(a) hereof, the Company will make all arrangements necessary so that such other securities, cash and/or other property are available for distribution by the Rights Agent, if and when appropriate. The payment of the Exercise Price (as such amount may be reduced pursuant to Section 11(a)(iii) hereof) may be made in cash or by certified or bank check or bank draft payable to the order of the Company. The Company reserves the right to require prior to the occurrence of a Triggering Event that, upon any exercise of Rights, a number of Rights be exercised so that only whole shares of Preferred Stock would be issued.
(d) In the event of an exercise of the Rights by a holder pursuant to Section 11(a)(ii) hereof, the Rights Agent shall return such Rights Certificate to the registered holder thereof after imprinting, stamping, or otherwise indicating thereon that the rights represented by such Rights Certificate no longer include the rights provided by Section 11(a)(ii) of the Rights Agreement. In addition, in the event that the registered holder of any Rights Certificate shall exercise less than all the Rights evidenced thereby, a new Rights Certificate evidencing the Rights remaining unexercised (and, if some of the Rights exercised were exercised pursuant to Section 11(a)(ii), indicating by imprint, stamp or otherwise the number of Rights remaining which continue to include rights provided by Section 11(a)(ii)) shall be issued by the Rights Agent and delivered to, or upon the order of, the registered holder of such Rights Certificate, registered in such name or names as may be designated by such holder, subject to the provisions of Section 14 hereof.
(e) Notwithstanding anything in this Agreement to the contrary, from and after the first occurrence of a Section 11(a)(ii) Event, any Rights beneficially owned by any of the Persons described below 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:
(i) an Acquiring Person or an Affiliate or Associate of an Acquiring Person;
(ii) a transferee of an Acquiring Person (or of any such Affiliate or Associate) which becomes a transferee after the Acquiring Person becomes such; or
(iii) a transferee of an Acquiring Person (or of any such Affiliate or Associate) 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 Affiliate or Associate) to holders of equity interests therein, or to any Person with whom such Acquiring Person (or Affiliate or Associate) has any continuing agreement, arrangement or understanding regarding the transferred Rights, shares of Common Stock, or the Company, or (B) a transfer which a majority of the Board 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). The Company shall use all reasonable efforts to ensure that the provisions of this Section 7(e) and Section 4(b) hereof are complied with, but shall have no liability to any holder of Rights or any other Person as a result of its failure to make any determination under this Section 7(e) or such Section 4(b) with respect to an Acquiring Person or its Affiliates, Associates or transferees.
(f) Notwithstanding anything in this Agreement or any Rights Certificate 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 by such registered holder unless such registered holder shall have (i) completed and executed the certificate following the form of election to purchase set forth on the reverse side of the Rights Certificate surrendered for such exercise, and (ii) provided such additional evidence of the identity of the Beneficial Owner or former Beneficial Owner (or Affiliates or Associates thereof) of the Rights represented by such Rights Certificate as the Company shall reasonably request.
Appears in 1 contract