IN TESTIMONY WHEREOF. ▇▇▇▇▇▇▇▇'▇, INC. has caused this Statement to be signed under its corporate seal by its Chairman and Chief Executive Officer and its Secretary as of the 23rd day of September, 1998. ▇▇▇▇▇▇▇▇'▇, INC. By: ________________________________ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Chairman and Chief Executive Officer ATTEST: ------------------------- ▇▇▇▇▇▇ ▇▇▇▇▇ President, Secretary and Chief Operating Officer EXHIBIT B [Form of Right Certificate] Certificate No. R- __________ Rights NOT EXERCISABLE AFTER OCTOBER 5, 2008 OR EARLIER IF REDEEMED OR EXCHANGED BY THE COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT $0.01 PER RIGHT ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS SUCH TERM IS DEFINED IN THE RIGHTS AGREEMENT (AS HEREINAFTER DEFINED)) AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS REPRESENTED BY THIS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHT CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY BE OR BECOME VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF THE AGREEMENT.]1/ Right Certificate ▇▇▇▇▇▇▇▇'▇, INC. This certifies that , or registered assigns, is the registered owner of the number of Rights set forth above, each of which entitles the owner thereof, subject to the terms, provisions and conditions of the Rights Agreement, dated as of September 23, 1998 (the "Rights Agreement"), between ▇▇▇▇▇▇▇▇'▇, INC., a Delaware corporation (the "Company"), and AMERICAN STOCK TRANSFER & TRUST COMPANY, a New York corporation (the "Rights Agent"), to purchase from the Company at any time after the Separation Date (as such term is defined in the Rights Agreement) and prior to the close of business (5:00 PM New York time) on October 5, 2008 at the office or offices of the Rights Agent designated for such purpose, or its successors as Rights Agent, one one-hundredth of a fully paid, nonassessable share of Series B Preferred Stock, par value $0.01 per share ("Series B Share") of the Company, at a purchase price of Fifteen Dollars ($15) per one one-hundredth of a share (the "Purchase Price"), upon presentation and surrender of this Right Certificate with the Form of Election to Purchase and related Certificate duly executed. The number of rights evidenced by this Right Certificate (and the number of shares that may be purchased upon exercise thereof) set forth above, and the Purchase Price per share set forth above, are the number and Purchase Price as of September 23, 1998 based on the Series B Shares as constituted at such date. Upon the occurrence of a Triggering Event (as such term is defined in the Rights Agreement), if the Rights evidenced by this Right Certificate are beneficially owned by (a) an Acquiring Person or an Affiliate or Associate of any such Acquiring Person (as such terms are defined in the Rights Agreement), (b) a transferee of any such Acquiring Person, Associate or Affiliate (other than a bona fide purchaser for value who has no knowledge that the transferor was an Acquiring Person or an Associate or Affiliate of an Acquiring Person) or (c) under certain circumstances specified in the Rights Agreement, a transferee of a person or entity who, after such transfer, became an Acquiring Person, such Rights shall become null and void and no holder hereof shall have any right with respect to such rights from and after the occurrence of any such Triggering Event. As provided in the Rights Agreement, the Purchase Price and the number and kind of Series B Shares or other securities or other property that may be purchased upon the exercise of the Rights evidenced by this Right Certificate are subject to modification and adjustment upon the happening of certain events. The Board may, at its option, at any time after the right of the Company to redeem the Rights has expired or terminated (with certain exceptions) exchange all or part of the then outstanding and exercisable Rights (other than those held by the Acquiring Person and Affiliates and Associates of the Acquiring Person) for Common Shares (as such term is defined in the Rights Agreement) at an exchange ratio of one Common Share per Right, as adjusted. Immediately upon the action of the Board ordering an exchange of the Rights, the Rights affected by such order will no longer be exercisable and thereafter the only right of the holders of such Rights will be to receive the Common Shares issuable by the Company in exchange for such Rights. This Right Certificate is subject to all of the terms, provisions and conditions of the Rights Agreement, which terms, provisions and conditions are hereby incorporated herein by reference and made a part hereof and to which Rights Agreement reference is hereby made for a full description of the rights, limitations of rights, obligations, duties and immunities hereunder of the Rights Agent, the Company and the holders of the Right Certificates, which limitations of rights include the temporary suspension of the exercisability of such Rights for not more than ninety (90) days at the election of the Company and under certain circumstances specified in such Rights Agreement. Copies of the Rights Agreement are on file at the above- mentioned office of the Rights Agent and are also available upon written request to the Company. This Right Certificate, with or without other Right Certificates, upon surrender at the principal office or offices of the Rights Agent designated for such purpose, may be exchanged for another Right Certificate or Right Certificates of like tenor and date evidencing Rights entitling the holder to purchase a like aggregate number of Series B Shares as the Rights evidenced by the Right Certificate or Right Certificates surrendered shall have entitled such holder to purchase. If the Rights evidenced by this Right Certificate shall be exercised in part, the holder shall be entitled to receive upon surrender hereof another Right Certificate or Right Certificates for the number of whole Rights not exercised. Subject to the provisions of the Rights Agreement, the Rights evidenced by this Certificate may be redeemed at a redemption price of One Cent ($0.01) per Right at any time prior to the earlier of (A) the close of business 10 Business Days (as such term in defined in the Rights Agreement) after the Shares Acquisition Date (as such term is defined in the Rights Agreement) or (B) the Final Expiration Date (as such term is defined in the Rights Agreement), unless the period for redemption is extended as permitted in the Rights Agreement. Thereafter, the Board of Directors of the Company (the "Board") may only redeem the Rights in certain specified circumstances including in connection with certain events not involving an Acquiring Person or an Affiliate or Associate of an Acquiring Person. In addition, the Company's right of redemption may be reinstated if, among other things, an Acquiring Person reduces his beneficial ownership to ten percent (10%) or less of the outstanding Common Shares of the Company in a transaction or series of transactions not involving the Company. Immediately upon the action of the Board ordering redemption of the Rights, the Rights will no longer be exercisable, except where the redemption is made in connection with an event not involving an Acquiring Person or Affiliate or Associate of an Acquiring Person (in which circumstance the effective time of the redemption may be deferred); and, in general, thereafter the only right of the holders of the Rights evidenced hereby will be to receive the Redemption Price. The terms of the Rights evidenced by this Certificate may be supplemented or amended without the approval of any holder of the Rights (or the Common Shares) as set forth in the Rights Agreement. No fractional Series B Shares will be issued upon the exercise of any Right or Rights evidenced hereby (other than fractions that are integral multiples of one one-hundredth of a Series B Share, which may, at the election of the Company, be evidenced by depositary receipts), but in lieu thereof a cash payment will be made as provided in the Rights Agreement. No holder of this Right Certificate, as such, shall be entitled to vote or receive dividends or be deemed for any purpose the holder of Series B Shares or of any other securities of the Company that may at any time be issuable on the exercise hereof, nor shall anything contained in the Rights Agreement or herein be construed to confer upon the holder hereof, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action, or to receive notice of meetings or other actions affecting stockholders (except as provided in the Rights Agreement), or to receive dividends or subscription rights, or otherwise, until the Rights evidenced by this Right Certificate shall have been exercised as provided in the Rights Agreement. This Right Certificate shall not be valid or obligatory for any purpose until it shall have been countersigned by the Rights Agent. WITNESS the facsimile signatures of the proper officers of the Company. Dated: ___________, 19__ ▇▇▇▇▇▇▇▇'▇, INC. By_______________________ Name: Title: Attest___________________ Name: Title: (Corporate Seal) Countersigned AMERICAN STOCK TRANSFER & TRUST COMPANY as Rights Agent By___________________ [Form of Reverse Side of Right Certificate] FORM OF ASSIGNMENT (To be executed by the registered holder if such holder desires to transfer the Right Certificate.) FOR VALUE RECEIVED __________________________________ hereby sells, assigns and transfers unto __________________________ ------------------------------------------------------------ (Please print name and address of Transferee) ____________________________________________________________ this Right Certificate, together with all right, title and interest therein, and does hereby irrevocably constitute and appoint __________________ attorney, to transfer the within Right Certificate on the books of the within-named Company, with full power of substitution. Dated: _______________, 19__ ------------------------- Signature Signature Guaranteed:
Appears in 2 contracts
Sources: Rights Agreement (Loehmanns Inc), Rights Agreement (Loehmanns Inc)
IN TESTIMONY WHEREOF. ▇▇▇▇▇▇▇▇'▇the parties of this Agreement have hereunto attached their signatures respectively, INCTHE BOARD OF REGENTS OF THE UNIVERSITY OF NEBRASKA and the ARCHITECT/ENGINEER. has caused THE BOARD OF REGENTS OF THE UNIVERSITY OF NEBRASKA Name Office of the Vice Chancellor for Business and Finance State of ) County of ) ) ss. (Corporation) Before the undersigned, a Notary Public duly qualified in and for said county and state, personally came who is the Subscribed and sworn to before me this Statement day of , 20 . Notary Public State of Nebraska ) ) ss. (Board of Regents) County of ) Before the undersigned, a Notary Public duly qualified in and for said county and state, personally came who is the for the Board of Regents of the University of Nebraska, and known to me to be signed under its corporate seal by its Chairman and Chief Executive Officer and its Secretary as said officers of the 23rd day of September, 1998. ▇▇▇▇▇▇▇▇'▇, INC. By: ________________________________ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Chairman and Chief Executive Officer ATTEST: ------------------------- ▇▇▇▇▇▇ ▇▇▇▇▇ President, Secretary and Chief Operating Officer EXHIBIT B [Form of Right Certificate] Certificate No. R- __________ Rights NOT EXERCISABLE AFTER OCTOBER 5, 2008 OR EARLIER IF REDEEMED OR EXCHANGED BY THE COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT $0.01 PER RIGHT ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS SUCH TERM IS DEFINED IN THE RIGHTS AGREEMENT (AS HEREINAFTER DEFINED)) AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS REPRESENTED BY THIS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHT CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY BE OR BECOME VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF THE AGREEMENT.]1/ Right Certificate ▇▇▇▇▇▇▇▇'▇, INC. This certifies that , or registered assigns, is the registered owner of the number of Rights set forth above, each of which entitles the owner thereof, subject to the terms, provisions and conditions of the Rights Agreement, dated as of September 23, 1998 (the "Rights Agreement"), between ▇▇▇▇▇▇▇▇'▇, INC., a Delaware corporation (the "Company"), and AMERICAN STOCK TRANSFER & TRUST COMPANY, a New York corporation (the "Rights Agent"), to purchase from the Company at any time after the Separation Date (as such term is defined in the Rights Agreement) and prior to the close of business (5:00 PM New York time) on October 5, 2008 at the office or offices of the Rights Agent designated for such purpose, or its successors as Rights Agent, one one-hundredth of a fully paid, nonassessable share of Series B Preferred Stock, par value $0.01 per share ("Series B Share") of the Company, at a purchase price of Fifteen Dollars ($15) per one one-hundredth of a share (the "Purchase Price"), upon presentation and surrender of this Right Certificate with the Form of Election to Purchase and related Certificate duly executed. The number of rights evidenced by this Right Certificate (and the number of shares that may be purchased upon exercise thereof) set forth abovesaid public corporation, and the Purchase Price per share set forth abovesame and identical persons who signed the foregoing Agreement as said officers, are the number and Purchase Price as each acknowledged their signing of September 23, 1998 based on the Series B Shares as constituted at such date. Upon the occurrence of a Triggering Event (this Agreement to be their duly authorized act and deed as such term is defined officers on behalf of said public corporation. Subscribed and sworn to before me this day of , 20 . employees of to execute in its behalf all contracts, agreements and releases which they, in their discretion, approve, each such employee being separately and independently authorized to so act without the concurrence or joinder in such action by and of the other named employees: BE IT FURTHER RESOLVED, that any such contract, agreement or release executed by any of the above- name employees in the Rights Agreement)name of should be considered a contract, if the Rights evidenced by this Right Certificate are beneficially owned by (a) an Acquiring Person agreement, or an Affiliate or Associate release of any such Acquiring Person (as such terms are defined in the Rights Agreement), (b) a transferee of any such Acquiring Person, Associate or Affiliate (other than a bona fide purchaser for value who has no knowledge that the transferor was an Acquiring Person or an Associate or Affiliate of an Acquiring Person) or (c) under certain circumstances specified in the Rights Agreement, a transferee of a person or entity who, after such transfer, became an Acquiring Person, such Rights shall become null and void and no holder hereof shall have any right with respect to such rights from and after the occurrence of any such Triggering Event. As provided in the Rights Agreement, the Purchase Price and the number and kind of Series B Shares or other securities or other property that may be purchased upon the exercise of the Rights evidenced by this Right Certificate are subject to modification and adjustment upon the happening of certain events. The Board may, at its option, at any time after the right of the Company to redeem the Rights has expired or terminated (with certain exceptions) exchange all or part of the then outstanding and exercisable Rights (other than those held by the Acquiring Person and Affiliates and Associates of the Acquiring Person) for Common Shares (as such term is defined in the Rights Agreement) at an exchange ratio of one Common Share per Right, as adjusted. Immediately upon the action of the Board ordering an exchange of the Rights, the Rights affected by such order will no longer be exercisable and thereafter the only right of the holders of such Rights will be to receive the Common Shares issuable by the Company in exchange for such Rights. This Right Certificate is subject to all of the terms, provisions and conditions of the Rights Agreement, which terms, provisions and conditions are hereby incorporated herein by reference and made a part hereof and to which Rights Agreement reference is hereby made for a full description of the rights, limitations of rights, obligations, duties and immunities hereunder of the Rights Agent, the Company and the holders of the Right Certificates, which limitations of rights include the temporary suspension of the exercisability of such Rights for not more than ninety (90) days at the election of the Company and under certain circumstances specified in such Rights Agreement. Copies of the Rights Agreement are on file at the above- mentioned office of the Rights Agent and are also available upon written request to the Company. This Right Certificate, with or without other Right Certificates, upon surrender at the principal office or offices of the Rights Agent designated for such purpose, may be exchanged for another Right Certificate or Right Certificates of like tenor and date evidencing Rights entitling the holder to purchase a like aggregate number of Series B Shares as the Rights evidenced by the Right Certificate or Right Certificates surrendered shall have entitled such holder to purchase. If the Rights evidenced by this Right Certificate shall be exercised in partbinding upon it. BE IT FURTHER RESOLVED, the holder shall be entitled to receive upon surrender hereof another Right Certificate or Right Certificates for the number of whole Rights not exercised. Subject to the provisions of the Rights Agreement, the Rights evidenced that any similar authority heretofore granted by this Certificate may be redeemed at a redemption price of One Cent ($0.01) per Right at any time prior to the earlier of (A) the close of business 10 Business Days (as such term in defined in the Rights Agreement) after the Shares Acquisition Date (as such term is defined in the Rights Agreement) or (B) the Final Expiration Date (as such term is defined in the Rights Agreement), unless the period for redemption is extended as permitted in the Rights Agreement. Thereafter, the Board of Directors of the Company (to employees other than those named above be and hereby is terminated as of this date, and the "Board") may only redeem the Rights in certain specified circumstances including in connection with certain events not involving an Acquiring Person or an Affiliate or Associate of an Acquiring Person. In addition, the Company's right of redemption may be reinstated if, among other things, an Acquiring Person reduces his beneficial ownership to ten percent (10%) or less of the outstanding Common Shares of the Company in a transaction or series of transactions not involving the Company. Immediately upon the action authority granted above shall commence this date and shall continue until revoked by resolution of the Board ordering redemption of Directors. I hereby certify that I am Secretary of , that as such I have access to the books and records of the RightsCorporation; that the foregoing is an excerpt from the minutes of the Board of Directors' Meeting of a Nebraska Corporation, held on the day of , 20 , a quorum being present; and that no action has been taken by the Board of Directors of said Corporation since said date that would have effect of changing or altering the authority granted therein. Subscribed and sworn to before me this day of , 20 . Notary Public Secretary of the Corporation Seal: Date Project: Project #: Project Manager: Date: HOURLY RATES FOR ADDITIONAL SERVICES Additional Services: Time shall be computed at a fixed rate. For the purpose of this Agreement, the Rights will no longer be exercisable, except where the redemption is made in connection with an event not involving an Acquiring Person or Affiliate or Associate of an Acquiring Person (in which circumstance the effective time of the redemption may be deferred); and, in general, thereafter the only right of the holders of the Rights evidenced hereby will be to receive the Redemption Price. The terms of the Rights evidenced by this Certificate may be supplemented or amended without the approval of any holder of the Rights (or the Common Shares) rates per hour are as set forth in the Rights Agreement. No fractional Series B Shares will be issued upon the exercise of any Right or Rights evidenced hereby (other than fractions that are integral multiples of one one-hundredth of a Series B Share, which may, at the election of the Company, be evidenced by depositary receipts), but in lieu thereof a cash payment will be made as provided in the Rights Agreement. No holder of this Right Certificate, as such, shall be entitled to vote or receive dividends or be deemed for any purpose the holder of Series B Shares or of any other securities of the Company that may at any time be issuable on the exercise hereof, nor shall anything contained in the Rights Agreement or herein be construed to confer upon the holder hereof, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action, or to receive notice of meetings or other actions affecting stockholders (except as provided in the Rights Agreement), or to receive dividends or subscription rights, or otherwise, until the Rights evidenced by this Right Certificate shall have been exercised as provided in the Rights Agreement. This Right Certificate shall not be valid or obligatory for any purpose until it shall have been countersigned by the Rights Agent. WITNESS the facsimile signatures of the proper officers of the Company. Datedfollows: ___________, 19__ ▇▇▇▇▇▇▇▇'▇, INC. By_______________________ NameProject: TitleProject #: Attest___________________ NameProject Manager: TitleDate: (Corporate Seal) Countersigned AMERICAN STOCK TRANSFER & TRUST COMPANY as Rights Agent By___________________ [Form of Reverse Side of Right Certificate] FORM OF ASSIGNMENT (To be executed by the registered holder if such holder desires to transfer the Right Certificate.) FOR VALUE RECEIVED __________________________________ hereby sells, assigns and transfers unto __________________________ ------------------------------------------------------------ (Please print name and address of Transferee) ____________________________________________________________ this Right Certificate, together with all right, title and interest therein, and does hereby irrevocably constitute and appoint __________________ attorney, to transfer the within Right Certificate on the books of the within-named Company, with full power of substitution. DatedProject: _______________, 19__ ------------------------- Signature Signature GuaranteedProject #: Project Manager: Date: Project: Project #: Project Manager: Date:
Appears in 2 contracts
Sources: Design Services Agreement, Design Services Agreement
IN TESTIMONY WHEREOF. ▇▇▇▇▇▇▇▇'▇PFSWEB, INC. has caused this Statement to be signed under its corporate seal by its Chairman and Chief Executive Officer and its Secretary as of the 23rd day of September, 1998. ▇▇▇▇▇▇▇▇'▇, INC. By: ________________________________ ▇▇▇▇▇▇ ▇and its Secretary as of the 8th day of June, 2000. ▇▇▇▇▇▇▇▇ Chairman and Chief Executive Officer PFSWEB, INC. By: -------------------------------- Name: Title: ATTEST: ------------------------- ▇▇▇▇▇▇ ▇▇▇▇▇ President, Secretary and Chief Operating Officer -------------------------------- Name: Title: EXHIBIT B [Form of Right Certificate] Certificate No. R- __________ Rights NOT EXERCISABLE AFTER OCTOBER 5, 2008 [________________] OR EARLIER IF REDEEMED OR EXCHANGED BY THE COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT $0.01 0.001 PER RIGHT ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS SUCH TERM IS DEFINED IN THE RIGHTS AGREEMENT (AS HEREINAFTER DEFINED)) AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS REPRESENTED BY THIS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHT CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY BE OR BECOME NULL AND VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF THE AGREEMENT.]1/ Right Certificate ▇▇▇▇▇▇▇▇'▇PFSWEB, INC. This certifies that , or registered assigns, is the registered owner of the number of Rights set forth above, each of which entitles the owner thereof, subject to the terms, provisions and conditions of the Rights Agreement, dated as of September 23June 8, 1998 2000 (the "Rights Agreement"), between ▇▇▇▇▇▇▇▇'▇PFSWEB, INC., a Delaware corporation (the "Company"), and AMERICAN STOCK TRANSFER & TRUST COMPANYCHASEMELLON SHAREHOLDER SERVICES, LLC, a New York corporation Jersey limited liability company (the "Rights Agent"), to purchase from the Company at any time after the Separation Date (as such term is defined in the Rights Agreement) and prior to the close of business (5:00 PM New York time) on October 5July 6, 2008 2010, at the office or offices of the Rights Agent designated for such purpose, or its successors as Rights Agent, one one-hundredth thousandth of a fully paid, nonassessable share of Series B A Preferred Stock, par value $0.01 1.00 per share ("Series B A 1/ The portion of the legend in brackets shall be inserted if applicable and shall replace the preceding sentence. Share") of the Company, at a purchase price of Fifteen Dollars ($15) 67 per one one-hundredth thousandth of a share (the "Purchase Price"), upon presentation and surrender of this Right Certificate with the Form of Election to Purchase and related Certificate duly executed. The number of rights evidenced by this Right Certificate (and the number of shares that may be purchased upon 2 exercise thereof) set forth above, and the Purchase Price per share set forth above, are the number and Purchase Price as of September 23June 8, 1998 2000, based on the Series B A Shares as constituted at such date. Upon the occurrence of a Triggering Event (as such term is defined in the Rights Agreement), if the Rights evidenced by this Right Certificate are beneficially owned by (a) an Acquiring Person or an Affiliate or Associate of any such Acquiring Person (as such terms are defined in the Rights Agreement), (b) a transferee of any such Acquiring Person, Associate or Affiliate (other than a bona fide purchaser for value who has no knowledge that the transferor was an Acquiring Person or an Associate or Affiliate of an Acquiring Person) or (c) under certain circumstances specified in the Rights Agreement, a transferee of a person or entity who, after such transfer, became an Acquiring Person, such Rights shall become null and void and no holder hereof shall have any right with respect to such rights from and after the occurrence of any such Triggering Event. As provided in the Rights Agreement, the Purchase Price and the number and kind of Series B A Shares or other securities or other property that may be purchased upon the exercise of the Rights evidenced by this Right Certificate are subject to modification and adjustment upon the happening of certain events. ----------------- 1/ the portion of the legend in brackers shall be inserted if applicable and shall replace the preceding sentence. The Board may, at its option, at any time after the right of the Company to redeem the Rights has expired or terminated (with certain exceptions) terminated, exchange all or part of the then outstanding and exercisable Rights (other than those held by the Acquiring Person and Affiliates and Associates of the Acquiring Person) for Common Shares (as such term is defined in the Rights Agreement) at an exchange ratio of one Common Share per Right, as adjusted. Immediately upon the action of the Board ordering an exchange of the Rights, the Rights affected by such order will no longer be exercisable and thereafter the only right of the holders of such Rights will be to receive the Common Shares issuable by the Company in exchange for such Rights. This Right Certificate is subject to all of the terms, provisions covenants and conditions restrictions of the Rights Agreement, which terms, provisions covenants and conditions restrictions are hereby incorporated herein by reference and made a part hereof and to which Rights Agreement reference is hereby made for a full description of the rights, limitations of rights, obligations, duties and immunities hereunder of the Rights Agent, the Company and the holders of the Right Certificates, which limitations of rights include the temporary suspension of the exercisability of such Rights for not more than ninety (90) days at the election of the Company and under certain circumstances specified in such Rights Agreement. Copies of the Rights Agreement are on file at the above- mentioned office of the Rights Agent and are also available upon written request to the Company. This Right Certificate, with or without other Right Certificates, upon surrender at the principal office or offices of the Rights Agent designated for such purpose, may be exchanged for another Right Certificate or Right Certificates of like tenor and date evidencing Rights entitling the holder to purchase a like aggregate number of Series B A Shares as the Rights evidenced by the Right Certificate or Right Certificates surrendered shall have entitled such holder to purchase. If the Rights evidenced by this Right Certificate shall be exercised in part, the holder shall be entitled to receive upon surrender hereof another Right Certificate or Right Certificates for the number of whole Rights not exercised. Subject to the provisions of the Rights Agreement, the Rights evidenced by this Certificate may be redeemed at a redemption price of One Tenth of One Cent ($0.010.001) per Right at any time prior to the earlier of (A) the close of business 10 Business Days (as such term in defined in the Rights Agreement) after the Shares Acquisition Date date that a Person becomes an Acquiring Person (as such term is defined in the Rights Agreement) or (B) the Final Expiration Date (as such term is defined in the Rights Agreement), unless the period for redemption is extended as permitted in the Rights Agreement. Thereafter, the Board of Directors of the Company (the "Board") may only redeem the Rights in certain specified circumstances including in connection with certain events not involving an Acquiring Person or an Affiliate or Associate of an Acquiring Person. In addition, the Company's right of redemption may be reinstated if, among other things, an Acquiring Person reduces his beneficial ownership to ten percent (10%) or less of the outstanding Common Shares of the Company in a transaction or series of transactions not involving the Company. Immediately upon the action of the Board ordering redemption of the Rights, the Rights will no longer be exercisable, except where the redemption is made in connection with an event not involving an Acquiring Person or Affiliate or Associate of an Acquiring Person (in which circumstance the effective time of the redemption may be deferred); and, in general, thereafter the only right of the holders of the Rights evidenced hereby will be to receive the Redemption Price. The terms of the Rights evidenced by this Certificate may be supplemented or amended without the approval of any holder of the Rights (or the Common Shares) as set forth in the Rights Agreement. No fractional Series B A Shares will be issued upon the exercise of any Right or Rights evidenced hereby (other than fractions that are integral multiples of one one-hundredth one- thousandth of a Series B A Share, which may, at the election of the Company, be evidenced by depositary receipts), but in lieu thereof a cash payment will be made as provided in the Rights Agreement. No holder of this Right Certificate, as such, shall be entitled to vote or receive dividends or be deemed for any purpose the holder of Series B A Shares or of any other securities of the Company that may at any time be issuable on the exercise hereof, nor shall anything contained in the Rights Agreement or herein be construed to confer upon the holder hereof, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action, or to receive notice of meetings or other actions affecting stockholders (except as provided in the Rights Agreement), or to receive dividends or subscription rights, or otherwise, until the Right or Rights evidenced by this Right Certificate shall have been exercised as provided in the Rights Agreement. This Right Certificate shall not be valid or obligatory for any purpose until it shall have been countersigned by the Rights Agent. WITNESS the facsimile signatures of the proper officers of the Company. Dated: ___________, 19__ ▇▇▇▇▇▇▇▇'▇2000 PFSWEB, INC. By_______________________ By ---------------------------------- Name: Title: Attest___________________ Attest --------------------- Name: Title: (Corporate Seal) Countersigned AMERICAN STOCK TRANSFER & TRUST COMPANY CHASEMELLON SHAREHOLDER SERVICES, LLC as Rights Agent By___________________ [Form of Reverse Side of Right Certificate] FORM OF ASSIGNMENT (To be executed by the registered holder if such holder desires to transfer the Right Certificate.) FOR VALUE RECEIVED __________________________________ hereby sells, assigns and transfers unto __________________________ ------------------------------------------------------------ (Please print name and address of Transferee) ____________________________________________________________ this Right Certificate, together with all right, title and interest therein, and does hereby irrevocably constitute and appoint __________________ attorney, to transfer the within Right Certificate on the books of the within-named Company, with full power of substitution. Dated: _______________, 19__ ------------------------- Signature Signature Guaranteed:By ------------------------
Appears in 2 contracts
Sources: Rights Agreement (Pfsweb Inc), Rights Agreement (Pfsweb Inc)
IN TESTIMONY WHEREOF. ▇▇▇▇▇▇▇▇'▇, INC. CD Radio Inc. has caused this Statement to be signed under its corporate seal by its Chairman and Chief Executive Officer and its Secretary as of the 23rd 22nd day of SeptemberOctober, 19981997. CD RADIO INC. By: ------------------------------------ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇'▇ Chairman and Chief Executive Officer ATTEST: -------------------------------- ▇, INC. By: ________________________________ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Chairman and Chief Executive Officer ATTEST: ------------------------- ▇▇▇▇▇▇ ▇▇▇▇▇ President, Secretary and Chief Operating Officer EXHIBIT B [Form of Right Certificate] Certificate No. R- __________ Rights NOT EXERCISABLE AFTER OCTOBER 522, 2008 2002 OR EARLIER IF REDEEMED OR EXCHANGED BY THE COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT $0.01 PER RIGHT ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS SUCH TERM IS DEFINED IN THE RIGHTS AGREEMENT (AS HEREINAFTER DEFINED)) AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS REPRESENTED BY THIS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHT CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY BE OR BECOME VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF THE AGREEMENT.]1/ AGREEMENT.]/1/ Right Certificate ▇▇▇▇▇▇▇▇'▇, CD RADIO INC. This certifies that , or registered assigns, is the registered owner of the number of Rights set forth above, each of which entitles the owner thereof, subject to the terms, provisions and conditions of the Rights Agreement, dated as of September 23October 22, 1998 1997 (the "Rights AgreementRIGHTS AGREEMENT"), between ▇▇▇▇▇▇▇▇'▇, CD RADIO INC., a Delaware corporation (the "CompanyCOMPANY"), and AMERICAN CONTINENTAL STOCK TRANSFER & TRUST COMPANY, a New York corporation (the "Rights AgentRIGHTS AGENT"), to purchase from the Company at any time after the Separation Date (as such term is defined in the Rights Agreement) and prior to the close of business (5:00 PM New York Washington D.C. time) on October 522, 2008 2002 at the office or offices of the Rights Agent designated for such purpose, or its successors as Rights Agent, one one-hundredth of a fully paid, nonassessable share of Series B Preferred Stock, par value $0.01 0.001 per share ("Series SERIES B ShareSHARE") of the Company, at a purchase price of One Hundred Fifteen Dollars ($15115.00) per one one-hundredth of a share (the "Purchase PricePURCHASE PRICE"), upon presentation and surrender of this Right Certificate with the Form of Election to Purchase and related Certificate duly executed. The number of rights evidenced by this Right Certificate (and the number of shares that may be purchased upon exercise thereof) set forth above, and the Purchase Price per share set forth above, are the number and Purchase Price as of September 23November 3, 1998 1997 based on the Series B Shares as constituted at such date. Upon the occurrence of a Triggering Event (as such term is defined in the Rights Agreement), if the Rights evidenced by this Right Certificate are beneficially owned by (a) an Acquiring Person or an Affiliate or Associate of any such Acquiring Person (as such terms are defined in the Rights Agreement), (b) a transferee of any such Acquiring Person, Associate or Affiliate (other than a bona fide purchaser for value who has no knowledge that the transferor was an Acquiring Person or an Associate or Affiliate of an Acquiring Person) or (c) under certain circumstances specified in the Rights Agreement, a transferee of a person or entity who, after such transfer, became an Acquiring Person, such Rights shall become null and void and no holder hereof shall have any right with respect to such rights from and after the occurrence of any such Triggering Event. As provided in the Rights Agreement, the Purchase Price and the number and kind of Series B Shares or other securities or other property that may be purchased upon the exercise of the Rights evidenced by this Right Certificate are subject to modification and adjustment upon the happening of certain events. The Board may, at its option, at any time after the right of the Company to redeem the Rights has expired or terminated (with certain exceptions) exchange all or part of the then outstanding and exercisable Rights (other than those held by the Acquiring Person and Affiliates and Associates of the Acquiring Person) for Common Shares (as such term is defined in the Rights Agreement) at an exchange ratio of one Common Share per Right, as adjusted. Immediately upon the action of the Board ordering an exchange of the Rights, the Rights affected by such order will no longer be exercisable and thereafter the only right of the holders of such Rights will be to receive the Common Shares issuable by the Company in exchange for such Rights. This Right Certificate is subject to all of the terms, provisions and conditions of the Rights Agreement, which terms, provisions and conditions are hereby incorporated herein by reference and made a part hereof and to which Rights Agreement reference is hereby made for a full description of the rights, limitations of rights, obligations, duties and immunities hereunder of the Rights Agent, the Company and the holders of the Right Certificates, which limitations of rights include the temporary suspension of the exercisability of such Rights for not more than ninety (90) days at the election of the Company and under certain circumstances specified in such Rights Agreement. Copies of the Rights Agreement are on file at the above- mentioned office of the Rights Agent and are also available upon written request to the Company. This Right Certificate, with or without other Right Certificates, upon surrender at the principal office or offices of the Rights Agent designated for such purpose, may be exchanged for another Right Certificate or Right Certificates of like tenor and date evidencing Rights entitling the holder to purchase a like aggregate number of Series B Shares as the Rights evidenced by the Right Certificate or Right Certificates surrendered shall have entitled such holder to purchase. If the Rights evidenced by this Right Certificate shall be exercised in part, the holder shall be entitled to receive upon surrender hereof another Right Certificate or Right Certificates for the number of whole Rights not exercised. Subject to the provisions of the Rights Agreement, the Rights evidenced by this Certificate may be redeemed at a redemption price of One Cent ($0.01) per Right at any time prior to the earlier of (A) the close of business 10 Business Days (as such term in defined in the Rights Agreement) after the Shares Acquisition Date (as such term is defined in the Rights Agreement) or (B) the Final Expiration Date (as such term is defined in the Rights Agreement), unless the period for redemption is extended as permitted in the Rights Agreement. Thereafter, the Board of Directors of the Company (the "BoardBOARD") may only redeem the Rights in certain specified circumstances including in connection with certain events not involving an Acquiring Person or an Affiliate or Associate of an Acquiring Person. In addition, the Company's right of redemption may be reinstated if, among other things, an Acquiring Person reduces his beneficial ownership to ten percent (10%) or less of the outstanding Common Shares of the Company in a transaction or series of transactions not involving the Company. Immediately upon the action of the Board ordering redemption of the Rights, the Rights will no longer be exercisable, except where the redemption is made in connection with an event not involving an Acquiring Person or Affiliate or Associate of an Acquiring Person (in which circumstance the effective time of the redemption may be deferred); and, in general, thereafter the only right of the holders of the Rights evidenced hereby will be to receive the Redemption Price. The terms of the Rights evidenced by this Certificate may be supplemented or amended without the approval of any holder of the Rights (or the Common Shares) as set forth in the Rights Agreement. No fractional Series B Shares will be issued upon the exercise of any Right or Rights evidenced hereby (other than fractions that are integral multiples of one one-hundredth of a Series B Share, which may, at the election of the Company, be evidenced by depositary receipts), but in lieu thereof a cash payment will be made as provided in the Rights Agreement. No holder of this Right Certificate, as such, shall be entitled to vote or receive dividends or be deemed for any purpose the holder of Series B Shares or of any other securities of the Company that may at any time be issuable on the exercise hereof, nor shall anything contained in the Rights Agreement or herein be construed to confer upon the holder hereof, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action, or to receive notice of meetings or other actions affecting stockholders (except as provided in the Rights Agreement), or to receive dividends or subscription rights, or otherwise, until the Rights evidenced by this Right Certificate shall have been exercised as provided in the Rights Agreement. This Right Certificate shall not be valid or obligatory for any purpose until it shall have been countersigned by the Rights Agent. WITNESS the facsimile signatures of the proper officers of the Company. Dated: ___________, 19__ ▇▇▇▇▇▇▇▇'▇, CD RADIO INC. By_______________________ Name: Title: Attest___________________ Name: Title: (Corporate Seal) Countersigned AMERICAN STOCK TRANSFER & TRUST COMPANY as Rights Agent By___________________ [Form of Reverse Side of Right Certificate] FORM OF ASSIGNMENT (To be executed by the registered holder if such holder desires to transfer the Right Certificate.) FOR VALUE RECEIVED __________________________________ hereby sells, assigns and transfers unto __________________________ ------------------------------------------------------------ (Please print name and address of Transferee) ____________________________________________________________ this Right Certificate, together with all right, title and interest therein, and does hereby irrevocably constitute and appoint __________________ attorney, to transfer the within Right Certificate on the books of the within-named Company, with full power of substitution. Dated: _______________, 19__ ------------------------- Signature Signature Guaranteed:
Appears in 2 contracts
Sources: Rights Agreement (Cd Radio Inc), Rights Agreement (Cd Radio Inc)
IN TESTIMONY WHEREOF. ▇▇▇▇▇▇▇▇'▇, INC. Anchor BanCorp Wisconsin Inc. has caused this Statement to be signed under its corporate seal by its Chairman of the Board, President and Chief Executive Officer and attested by its Vice President and Secretary as of the 23rd 22nd day of SeptemberJuly, 19981997. ▇▇▇▇▇▇▇▇'▇, ANCHOR BANCORP WISCONSIN INC. ByBy ------------------------------ Name: ________________________________ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Title: Chairman of the Board, President and Chief Executive Officer ATTEST: ------------------------- --------------------------- Name: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ President, Title: Vice President and Secretary and Chief Operating Officer EXHIBIT B [Form of Right Certificate] Certificate No. R- __________ Rights NOT EXERCISABLE AFTER OCTOBER 5JULY 22, 2008 2007 OR EARLIER IF REDEEMED OR EXCHANGED BY THE COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT $0.01 PER RIGHT ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS SUCH TERM IS DEFINED IN THE RIGHTS AGREEMENT (AS HEREINAFTER DEFINED)) AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS REPRESENTED BY THIS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHT CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY BE OR BECOME VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF THE AGREEMENT.]1/ AGREEMENT.]*/ Right Certificate ▇▇▇▇▇▇▇▇'▇, ANCHOR BANCORP WISCONSIN INC. This certifies that , or registered assigns, is the registered owner of the number of Rights set forth above, each of which entitles the owner thereof, subject to the terms, provisions and conditions of the Rights Agreement, dated as of September 23July 22, 1998 1997 (the "Rights Agreement"), between ▇▇▇▇▇▇▇▇'▇, INC.Anchor Bancorp Wisconsin Inc., a Delaware Wisconsin corporation (the "Company"), and AMERICAN STOCK TRANSFER & TRUST COMPANYFirstar Trust Co., a New York Wisconsin corporation (the "Rights Agent"), to purchase from the Company at any time after the Separation Date (as such term is defined in the Rights Agreement) and prior to the close of business (5:00 PM New York Milwaukee, Wisconsin time) on October 5July 22, 2008 2007 at the office or offices of the Rights Agent designated for such purpose, or its successors as Rights Agent, one one-hundredth of a fully paid, nonassessable share of Series B A Preferred Stock, par value $0.01 0.10 per share ("Series B A Share") of the Company, at a purchase price of Fifteen Two Hundred Dollars ($15200.00) per one one-hundredth of a share (the "Purchase Price"), upon presentation and surrender of this */ The portion of the legend in brackets shall be inserted if applicable and shall replace the preceding sentence. Right Certificate with the Form of Election to Purchase and related Certificate duly executed. The number of rights evidenced by this Right Certificate (and the number of shares that may be purchased upon exercise thereof) set forth above, and the Purchase Price per share set forth above, are the number and Purchase Price as of September 23August 1, 1998 1997, based on the Series B A Shares as constituted at such date. Upon the occurrence of a Triggering Event (as such term is defined in the Rights Agreement), if the Rights evidenced by this Right Certificate are beneficially owned by (a) an Acquiring Person or an Affiliate or Associate of any such Acquiring Person (as such terms are defined in the Rights Agreement), (b) a transferee of any such Acquiring Person, Associate or Affiliate (other than a bona fide purchaser for value who has no knowledge that the transferor was an Acquiring Person or an Associate or Affiliate of an Acquiring Person) or (c) under certain circumstances specified in the Rights Agreement, a transferee of a person or entity who, after such transfer, became an Acquiring Person, such Rights shall become null and void and no holder hereof shall have any right with respect to such rights from and after the occurrence of any such Triggering Event. As provided in the Rights Agreement, the Purchase Price and the number and kind of Series B A Shares or other securities or other property that may be purchased upon the exercise of the Rights evidenced by this Right Certificate are subject to modification and adjustment upon the happening of certain events. The Board may, at its option, at any time after the right of the Company to redeem the Rights has expired or terminated (with certain exceptions) exchange all or part of the then outstanding and exercisable Rights (other than those held by the Acquiring Person and Affiliates and Associates of the Acquiring Person) for Common Shares (as such term is defined in the Rights Agreement) at an exchange ratio of one Common Share per Right, as adjusted. Immediately upon the action of the Board ordering an exchange of the Rights, the Rights affected by such order will no longer be exercisable and thereafter the only right of the holders of such Rights will be to receive the Common Shares issuable by the Company in exchange for such Rights. This Right Certificate is subject to all of the terms, provisions and conditions of the Rights Agreement, which terms, provisions and conditions are hereby incorporated herein by reference and made a part hereof and to which Rights Agreement reference is hereby made for a full description of the rights, limitations of rights, obligations, duties and immunities hereunder of the Rights Agent, the Company and the holders of the Right Certificates, which limitations of rights include the temporary suspension of the exercisability of such Rights for not more than ninety (90) days at the election of the Company and under certain circumstances specified in such Rights Agreement. Copies of the Rights Agreement are on file at the above- mentioned office of the Rights Agent and are also available upon written request to the Company. This Right Certificate, with or without other Right Certificates, upon surrender at the principal office or offices of the Rights Agent designated for such purpose, may be exchanged for another Right Certificate or Right Certificates of like tenor and date evidencing Rights entitling the holder to purchase a like aggregate number of Series B A Shares as the Rights evidenced by the Right Certificate or Right Certificates surrendered shall have entitled such holder to purchase. If the Rights evidenced by this Right Certificate shall be exercised in part, the holder shall be entitled to receive upon surrender hereof another Right Certificate or Right Certificates for the number of whole Rights not exercised. Subject to the provisions of the Rights Agreement, the Rights evidenced by this Certificate may be redeemed at a redemption price of One Cent ($0.01) per Right at any time prior to the earlier of (A) the close of business on the earlier to occur of (a) 10 Business Days (as such term in defined in the Rights Agreement) after the Shares Acquisition Date (as such term is defined in the Rights Agreement) or (Bb) 15 business days following the Final Expiration Date (as such term is defined in commencement of a tender offer or exchange offer if, upon consummation thereof, a person or group would be the Rights Agreement)beneficial owner of 20% or more of the outstanding Common Shares, unless the period for redemption is extended as permitted in the Rights Agreement. Thereafter, the Board of Directors of the Company (the "BoardBOARD") may only redeem the Rights in certain specified circumstances including in connection with certain events not involving an Acquiring Person or an Affiliate or Associate of an Acquiring Person. In addition, the Company's right of redemption may be reinstated if, among other things, an Acquiring Person reduces his beneficial ownership to ten percent (10%) or less of the outstanding Common Shares of the Company in a transaction or series of transactions not involving the Company. Immediately upon the action of the Board ordering redemption of the Rights, the Rights will no longer be exercisable, except where the redemption is made in connection with an event not involving an Acquiring Person or Affiliate or Associate of an Acquiring Person (in which circumstance the effective time of the redemption may be deferred); and, in general, thereafter the only right of the holders of the Rights evidenced hereby will be to receive the Redemption Price. The terms of the Rights evidenced by this Certificate may be supplemented or amended without the approval of any holder of the Rights (or the Common Shares) as set forth in the Rights Agreement. No fractional Series B A Shares will be issued upon the exercise of any Right or Rights evidenced hereby (other than fractions that are integral multiples of one one-hundredth of a Series B A Share, which may, at the election of the Company, be evidenced by depositary receipts), but in lieu thereof a cash payment will be made as provided in the Rights Agreement. No holder of this Right Certificate, as such, shall be entitled to vote or receive dividends or be deemed for any purpose the holder of Series B A Shares or of any other securities of the Company that may at any time be issuable on the exercise hereof, nor shall anything contained in the Rights Agreement or herein be construed to confer upon the holder hereof, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action, or to receive notice of meetings or other actions affecting stockholders (except as provided in the Rights Agreement), or to receive dividends or subscription rights, or otherwise, until the Rights evidenced by this Right Certificate shall have been exercised as provided in the Rights Agreement. This Right Certificate shall not be valid or obligatory for any purpose until it shall have been countersigned by the Rights Agent. WITNESS the facsimile signatures of the proper officers of the Company. Dated: ___________, 19[19][20]__ ▇▇▇▇▇▇▇▇'▇, ANCHOR BANCORP WISCONSIN INC. By_______Attest________________ Name: Title: AttestBy___________________________ Name: Title: (Corporate Seal) Countersigned AMERICAN STOCK TRANSFER & FIRSTAR TRUST COMPANY CO., as Rights Agent By___________________ [Form of Reverse Side of Right Certificate] FORM OF ASSIGNMENT ------------------ (To be executed by the registered holder if such holder desires to transfer the Right Certificate.) FOR VALUE RECEIVED _____________________________________________ hereby sells, assigns and transfers unto _____________________________________ ------------------------------------------------------------ _________________________________________________________________________ (Please print name and address of Transferee) ____________________________________________________________ this Right Certificate, together with all right, title and interest therein, and does hereby irrevocably constitute and appoint __________________ attorney, to transfer the within Right Certificate on the books of the within-named Company, with full power of substitution. Dated: _______________, 19[19][20]__ ------------------------- _____________________________ Signature Signature Guaranteed:
Appears in 2 contracts
Sources: Rights Agreement (Anchor Bancorp Wisconsin Inc), Rights Agreement (Anchor Bancorp Wisconsin Inc)
IN TESTIMONY WHEREOF. ▇▇▇▇▇▇▇▇'▇, INC. has caused this Statement to be signed under its corporate seal by its Chairman and Chief Executive Officer and its Secretary instrument is executed effective as of the 23rd ____ day of September, 1998. ▇▇▇▇▇▇▇▇'▇, INC. By: ___________________, 199__. NORTH AUSTIN OFFICE, LTD., A Texas limited partnership By: 9001 IH35, Inc. A Texas corporation Its General Partner By: ---------------------------- Morr▇▇ ▇▇▇▇▇▇▇▇, ▇▇esident Exhibit A - Land Exhibit B - Encumbrances STATE OF ___________ ▇▇▇▇) ) COUNTY OF _________ ) This instrument was acknowledged before me on , 199__, by MORR▇▇ ▇. ▇▇▇▇▇▇▇▇ Chairman and Chief Executive Officer ATTEST: ------------------------- ▇, ▇▇▇▇▇▇ ▇▇▇▇▇ Presidentesident of 9001 IH35, Secretary INC., a Texas Corporation, on behalf of said corporation as General Partner of NORTH AUSTIN OFFICE, LTD., a Texas limited partnership, on behalf of said limited partnership. --------------------------------------- Notary Public in and Chief Operating Officer EXHIBIT B [Form for the State of Right Certificate] Certificate No. R- __________ Rights NOT EXERCISABLE AFTER OCTOBER 5My Commission Expires: --------------------------------------- Exhibit A - Land Exhibit B - Existing Encumbrances EXHIBIT A to Exhibit C LEGAL DESCRIPTION EXHIBIT B to EXHIBIT C ENCUMBRANCES EXHIBIT D BILL ▇▇ SALE FOR VALUE RECEIVED, 2008 OR EARLIER IF REDEEMED OR EXCHANGED BY THE COMPANYthe undersigned ("Seller") hereby sells, conveys and assigns to AMERICAN INDUSTRIAL PROPERTIES REIT, a Texas real estate investment trust ("Buyer"), all of the undersigned's right, title and interest in and to all equipment, fixtures, inventory and other tangible personal property of any kind and nature owned by Grantor and attached to or located on the real property described on Exhibit A attached hereto ("Real Property"), including without limitation all furniture, furnishings, floor coverings; office equipment and supplies; heating, lighting, refrigeration, plumbing, ventilating, incinerating, cooking, laundry, communication, electrical, air conditioning fixtures, systems and equipment; disposals; window screens; storm windows; sprinklers; hoses; tools; lawn equipment; elevators and escalators; compressors; engines; boilers, and all other related machinery, equipment, fixtures, supplies, replacement parts and other tangible personal property whatsoever, including, without limitation, the personal property described in Schedule 1 which is attached hereto and incorporated herein. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT $0.01 PER RIGHT ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENTHAVE AND TO HOLD the foregoing personal property unto Buyer and its successors and assigns forever. UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS SUCH TERM IS DEFINED IN THE RIGHTS AGREEMENT (AS HEREINAFTER DEFINED)) AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOIDThe undersigned warrants that it owns good and marketable title to the foregoing personal property and will defend title to said personal property against all persons claiming a prior right thereto to the extent that such prior right is alleged to exist on or before the date of this Bill ▇▇ Sale. [THE RIGHTS REPRESENTED BY THIS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHT CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY BE OR BECOME VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF THE AGREEMENT.]1/ Right Certificate Said personal property is used in connection with that certain office building commonly known as WHIT▇▇▇ ▇▇▇▇▇▇ ▇▇▇'ZA in Aust▇▇, INC. This certifies that , or registered assigns, is the registered owner of the number of Rights set forth above, each of which entitles the owner thereof, subject to the terms, provisions and conditions of the Rights Agreement, dated as of September 23, 1998 (the "Rights Agreement"), between ▇▇▇▇▇▇ ▇▇▇'▇nty, INCTexas., a Delaware corporation (the "Company"), and AMERICAN STOCK TRANSFER & TRUST COMPANY, a New York corporation (the "Rights Agent"), to purchase from the Company at any time after the Separation Date (as such term is defined in the Rights Agreement) and prior to the close of business (5:00 PM New York time) on October 5, 2008 at the office or offices of the Rights Agent designated for such purpose, or its successors as Rights Agent, one one-hundredth of a fully paid, nonassessable share of Series B Preferred Stock, par value $0.01 per share ("Series B Share") of the Company, at a purchase price of Fifteen Dollars ($15) per one one-hundredth of a share (the "Purchase Price"), upon presentation and surrender of this Right Certificate with the Form of Election to Purchase and related Certificate duly executed. The number of rights evidenced by this Right Certificate (and the number of shares that may be purchased upon exercise thereof) set forth above, and the Purchase Price per share set forth above, are the number and Purchase Price as of September 23, 1998 based on the Series B Shares as constituted at such date. Upon the occurrence of a Triggering Event (as such term is defined in the Rights Agreement), if the Rights evidenced by this Right Certificate are beneficially owned by (a) an Acquiring Person or an Affiliate or Associate of any such Acquiring Person (as such terms are defined in the Rights Agreement), (b) a transferee of any such Acquiring Person, Associate or Affiliate (other than a bona fide purchaser for value who has no knowledge that the transferor was an Acquiring Person or an Associate or Affiliate of an Acquiring Person) or (c) under certain circumstances specified in the Rights Agreement, a transferee of a person or entity who, after such transfer, became an Acquiring Person, such Rights shall become null and void and no holder hereof shall have any right with respect to such rights from and after the occurrence of any such Triggering Event. As provided in the Rights Agreement, the Purchase Price and the number and kind of Series B Shares or other securities or other property that may be purchased upon the exercise of the Rights evidenced by this Right Certificate are subject to modification and adjustment upon the happening of certain events. The Board may, at its option, at any time after the right of the Company to redeem the Rights has expired or terminated (with certain exceptions) exchange all or part of the then outstanding and exercisable Rights (other than those held by the Acquiring Person and Affiliates and Associates of the Acquiring Person) for Common Shares (as such term is defined in the Rights Agreement) at an exchange ratio of one Common Share per Right, as adjusted. Immediately upon the action of the Board ordering an exchange of the Rights, the Rights affected by such order will no longer be exercisable and thereafter the only right of the holders of such Rights will be to receive the Common Shares issuable by the Company in exchange for such Rights. This Right Certificate is subject to all of the terms, provisions and conditions of the Rights Agreement, which terms, provisions and conditions are hereby incorporated herein by reference and made a part hereof and to which Rights Agreement reference is hereby made for a full description of the rights, limitations of rights, obligations, duties and immunities hereunder of the Rights Agent, the Company and the holders of the Right Certificates, which limitations of rights include the temporary suspension of the exercisability of such Rights for not more than ninety (90) days at the election of the Company and under certain circumstances specified in such Rights Agreement. Copies of the Rights Agreement are on file at the above- mentioned office of the Rights Agent and are also available upon written request to the Company. This Right Certificate, with or without other Right Certificates, upon surrender at the principal office or offices of the Rights Agent designated for such purpose, may be exchanged for another Right Certificate or Right Certificates of like tenor and date evidencing Rights entitling the holder to purchase a like aggregate number of Series B Shares as the Rights evidenced by the Right Certificate or Right Certificates surrendered shall have entitled such holder to purchase. If the Rights evidenced by this Right Certificate shall be exercised in part, the holder shall be entitled to receive upon surrender hereof another Right Certificate or Right Certificates for the number of whole Rights not exercised. Subject to the provisions of the Rights Agreement, the Rights evidenced by this Certificate may be redeemed at a redemption price of One Cent ($0.01) per Right at any time prior to the earlier of (A) the close of business 10 Business Days (as such term in defined in the Rights Agreement) after the Shares Acquisition Date (as such term is defined in the Rights Agreement) or (B) the Final Expiration Date (as such term is defined in the Rights Agreement), unless the period for redemption is extended as permitted in the Rights Agreement. Thereafter, the Board of Directors of the Company (the "Board") may only redeem the Rights in certain specified circumstances including in connection with certain events not involving an Acquiring Person or an Affiliate or Associate of an Acquiring Person. In addition, the Company's right of redemption may be reinstated if, among other things, an Acquiring Person reduces his beneficial ownership to ten percent (10%) or less of the outstanding Common Shares of the Company in a transaction or series of transactions not involving the Company. Immediately upon the action of the Board ordering redemption of the Rights, the Rights will no longer be exercisable, except where the redemption is made in connection with an event not involving an Acquiring Person or Affiliate or Associate of an Acquiring Person (in which circumstance the effective time of the redemption may be deferred); and, in general, thereafter the only right of the holders of the Rights evidenced hereby will be to receive the Redemption Price. The terms of the Rights evidenced by this Certificate may be supplemented or amended without the approval of any holder of the Rights (or the Common Shares) as set forth in the Rights Agreement. No fractional Series B Shares will be issued upon the exercise of any Right or Rights evidenced hereby (other than fractions that are integral multiples of one one-hundredth of a Series B Share, which may, at the election of the Company, be evidenced by depositary receipts), but in lieu thereof a cash payment will be made as provided in the Rights Agreement. No holder of this Right Certificate, as such, shall be entitled to vote or receive dividends or be deemed for any purpose the holder of Series B Shares or of any other securities of the Company that may at any time be issuable on the exercise hereof, nor shall anything contained in the Rights Agreement or herein be construed to confer upon the holder hereof, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action, or to receive notice of meetings or other actions affecting stockholders (except as provided in the Rights Agreement), or to receive dividends or subscription rights, or otherwise, until the Rights evidenced by this Right Certificate shall have been exercised as provided in the Rights Agreement. This Right Certificate shall not be valid or obligatory for any purpose until it shall have been countersigned by the Rights Agent. WITNESS the facsimile signatures of the proper officers of the Company. Dated: ___________, 19__ ▇▇▇▇▇▇▇▇'▇, INC. By_______________________ Name: Title: Attest___________________ Name: Title: (Corporate Seal) Countersigned AMERICAN STOCK TRANSFER & TRUST COMPANY as Rights Agent By___________________ [Form of Reverse Side of Right Certificate] FORM OF ASSIGNMENT (To be executed by the registered holder if such holder desires to transfer the Right Certificate.) FOR VALUE RECEIVED __________________________________ hereby sells, assigns and transfers unto __________________________ ------------------------------------------------------------ (Please print name and address of Transferee) ____________________________________________________________ this Right Certificate, together with all right, title and interest therein, and does hereby irrevocably constitute and appoint __________________ attorney, to transfer the within Right Certificate on the books of the within-named Company, with full power of substitution. Dated: _______________, 19__ ------------------------- Signature Signature Guaranteed:
Appears in 1 contract
Sources: Purchase and Sale Agreement (American Industrial Properties Reit Inc)
IN TESTIMONY WHEREOF. ▇▇▇▇▇▇▇▇'▇the above partnership Borrower and CBL Properties, INC. Inc. has caused this Statement instrument to be signed under its corporate seal executed in the appropriate company or partnership name by its Chairman duly authorized general partner, and Chief Executive Officer has adopted as its seal the word "SEAL" appearing beside its name, this sealed instrument being executed and its Secretary as of delivered on the 23rd day of Septemberdate first above written. CBL&ASSOCIATES LIMITED PARTNERSHIP, 1998. ▇▇▇▇▇▇▇▇'▇a Delaware limited partnership BY: CBL HOLDINGS I, INC. By., a Delaware corporation Its Sole General Partner BY: ____________________,President ATTEST: ________________________________ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Chairman and Chief Executive Officer ATTEST: ------------------------- ▇▇▇▇▇▇ ▇▇▇▇▇ President, Secretary and Chief Operating Officer EXHIBIT B [Form of Right Certificate] Certificate No. R- __________ Rights NOT EXERCISABLE AFTER OCTOBER 5, 2008 OR EARLIER IF REDEEMED OR EXCHANGED BY THE COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT $0.01 PER RIGHT ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS SUCH TERM IS DEFINED IN THE RIGHTS AGREEMENT (AS HEREINAFTER DEFINED)Corporate Seal) AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS REPRESENTED BY THIS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHT CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY BE OR BECOME VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF THE AGREEMENT.]1/ Right Certificate ▇▇▇▇▇▇▇▇'▇CBL & ASSOCIATES PROPERTIES, INC. This certifies that , or registered assigns, is the registered owner of the number of Rights set forth above, each of which entitles the owner thereof, subject to the terms, provisions and conditions of the Rights Agreement, dated as of September 23, 1998 (the "Rights Agreement"), between ▇▇▇▇▇▇▇▇'▇, INC., a Delaware corporation (the "Company"), and AMERICAN STOCK TRANSFER & TRUST COMPANY, a New York corporation (the "Rights Agent"), to purchase from the Company at any time after the Separation Date (as such term is defined in the Rights Agreement) and prior to the close of business (5:00 PM New York time) on October 5, 2008 at the office or offices of the Rights Agent designated for such purpose, or its successors as Rights Agent, one one-hundredth of a fully paid, nonassessable share of Series B Preferred Stock, par value $0.01 per share ("Series B Share") of the Company, at a purchase price of Fifteen Dollars ($15) per one one-hundredth of a share (the "Purchase Price"), upon presentation and surrender of this Right Certificate with the Form of Election to Purchase and related Certificate duly executed. The number of rights evidenced by this Right Certificate (and the number of shares that may be purchased upon exercise thereof) set forth above, and the Purchase Price per share set forth above, are the number and Purchase Price as of September 23, 1998 based on the Series B Shares as constituted at such date. Upon the occurrence of a Triggering Event (as such term is defined in the Rights Agreement), if the Rights evidenced by this Right Certificate are beneficially owned by (a) an Acquiring Person or an Affiliate or Associate of any such Acquiring Person (as such terms are defined in the Rights Agreement), (b) a transferee of any such Acquiring Person, Associate or Affiliate (other than a bona fide purchaser for value who has no knowledge that the transferor was an Acquiring Person or an Associate or Affiliate of an Acquiring Person) or (c) under certain circumstances specified in the Rights Agreement, a transferee of a person or entity who, after such transfer, became an Acquiring Person, such Rights shall become null and void and no holder hereof shall have any right with respect to such rights from and after the occurrence of any such Triggering Event. As provided in the Rights Agreement, the Purchase Price and the number and kind of Series B Shares or other securities or other property that may be purchased upon the exercise of the Rights evidenced by this Right Certificate are subject to modification and adjustment upon the happening of certain events. The Board may, at its option, at any time after the right of the Company to redeem the Rights has expired or terminated (with certain exceptions) exchange all or part of the then outstanding and exercisable Rights (other than those held by the Acquiring Person and Affiliates and Associates of the Acquiring Person) for Common Shares (as such term is defined in the Rights Agreement) at an exchange ratio of one Common Share per Right, as adjusted. Immediately upon the action of the Board ordering an exchange of the Rights, the Rights affected by such order will no longer be exercisable and thereafter the only right of the holders of such Rights will be to receive the Common Shares issuable by the Company in exchange for such Rights. This Right Certificate is subject to all of the terms, provisions and conditions of the Rights Agreement, which terms, provisions and conditions are hereby incorporated herein by reference and made a part hereof and to which Rights Agreement reference is hereby made for a full description of the rights, limitations of rights, obligations, duties and immunities hereunder of the Rights Agent, the Company and the holders of the Right Certificates, which limitations of rights include the temporary suspension of the exercisability of such Rights for not more than ninety (90) days at the election of the Company and under certain circumstances specified in such Rights Agreement. Copies of the Rights Agreement are on file at the above- mentioned office of the Rights Agent and are also available upon written request to the Company. This Right Certificate, with or without other Right Certificates, upon surrender at the principal office or offices of the Rights Agent designated for such purpose, may be exchanged for another Right Certificate or Right Certificates of like tenor and date evidencing Rights entitling the holder to purchase a like aggregate number of Series B Shares as the Rights evidenced by the Right Certificate or Right Certificates surrendered shall have entitled such holder to purchase. If the Rights evidenced by this Right Certificate shall be exercised in part, the holder shall be entitled to receive upon surrender hereof another Right Certificate or Right Certificates for the number of whole Rights not exercised. Subject to the provisions of the Rights Agreement, the Rights evidenced by this Certificate may be redeemed at a redemption price of One Cent ($0.01) per Right at any time prior to the earlier of (A) the close of business 10 Business Days (as such term in defined in the Rights Agreement) after the Shares Acquisition Date (as such term is defined in the Rights Agreement) or (B) the Final Expiration Date (as such term is defined in the Rights Agreement), unless the period for redemption is extended as permitted in the Rights Agreement. Thereafter, the Board of Directors of the Company (the "Board") may only redeem the Rights in certain specified circumstances including in connection with certain events not involving an Acquiring Person or an Affiliate or Associate of an Acquiring Person. In addition, the Company's right of redemption may be reinstated if, among other things, an Acquiring Person reduces his beneficial ownership to ten percent (10%) or less of the outstanding Common Shares of the Company in a transaction or series of transactions not involving the Company. Immediately upon the action of the Board ordering redemption of the Rights, the Rights will no longer be exercisable, except where the redemption is made in connection with an event not involving an Acquiring Person or Affiliate or Associate of an Acquiring Person (in which circumstance the effective time of the redemption may be deferred); and, in general, thereafter the only right of the holders of the Rights evidenced hereby will be to receive the Redemption Price. The terms of the Rights evidenced by this Certificate may be supplemented or amended without the approval of any holder of the Rights (or the Common Shares) as set forth in the Rights Agreement. No fractional Series B Shares will be issued upon the exercise of any Right or Rights evidenced hereby (other than fractions that are integral multiples of one one-hundredth of a Series B Share, which may, at the election of the Company, be evidenced by depositary receipts), but in lieu thereof a cash payment will be made as provided in the Rights Agreement. No holder of this Right Certificate, as such, shall be entitled to vote or receive dividends or be deemed for any purpose the holder of Series B Shares or of any other securities of the Company that may at any time be issuable on the exercise hereof, nor shall anything contained in the Rights Agreement or herein be construed to confer upon the holder hereof, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action, or to receive notice of meetings or other actions affecting stockholders (except as provided in the Rights Agreement), or to receive dividends or subscription rights, or otherwise, until the Rights evidenced by this Right Certificate shall have been exercised as provided in the Rights Agreement. This Right Certificate shall not be valid or obligatory for any purpose until it shall have been countersigned by the Rights Agent. WITNESS the facsimile signatures of the proper officers of the Company. DatedBY: ___________, 19__ ▇▇▇▇▇▇▇▇'▇, INC. By_______________________ Name,President ATTEST: Title: Attest___________________ Name: Title: (Corporate Seal) Countersigned AMERICAN STOCK TRANSFER & TRUST COMPANY as Rights Agent By___________________ [Form of Reverse Side of Right Certificate] FORM OF ASSIGNMENT (To be executed by the registered holder if such holder desires to transfer the Right Certificate.) FOR VALUE RECEIVED __________________________________ hereby sells, assigns and transfers unto __________________________ ------------------------------------------------------------ Secretary (Please print name and address Corporate Seal) SOUTHTRUST BANK, NATIONAL ASSOCIATION, a national banking association By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Its Vice President EXHIBIT A Real property known as: Kingston Overlook, Knoxville, Tennessee Devonshire Place, Cary, North Carolina Massard Crossing, Ft. ▇▇▇▇▇, Arkansas all as more particularly described in the individual deeds of Transferee) ____________________________________________________________ this Right Certificatetrust and/or mortgages applicable to the above described properties. PERMITTED ENCUMBRANCES As described in the Mortgages. EXHIBIT C REVOLVING CREDIT NOTE $20,000,000 Birmingham, together with all right, title and interest therein, and does hereby irrevocably constitute and appoint __________________ attorney, to transfer the within Right Certificate on the books of the within-named Company, with full power of substitution. Dated: ____________Alabama January ___, 19__ ------------------------- Signature Signature Guaranteed:1998 FOR VALUE RECEIVED, the undersigned, the undersigned CBL & ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited partnership (the "Borrower"), promises to pay to the order of SOUTHTRUST BANK, NATIONAL ASSOCIATION, a national banking association having a principal place of business in Birmingham, Alabama (the "Bank"), the principal sum of TWENTY MILLION DOLLARS ($20,000,000),or so much as may be advanced to Borrower from time to time and not repaid by Borrower pursuant to the terms hereof, together with interest thereon at the rates of interest hereafter specified, which such principal and interest are payable in the manner provided below in lawful money of the United States. This Note is executed pursuant to that certain Revolving Credit Loan Agreement dated as of the date hereof between the Borrower and Bank (the "Loan Agreement"; capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Loan Agreement).
Appears in 1 contract
Sources: Revolving Credit Loan Agreement (CBL & Associates Properties Inc)
IN TESTIMONY WHEREOF. ▇▇▇▇▇▇▇▇'▇, INC. the Board of Directors of NELNET STUDENT LOAN CORPORATION-2 has caused this Statement note to be signed under its corporate seal executed by its Chairman the manual or facsimile signatures of the President and Chief Executive Officer and its Secretary of the Issuer all as of the 23rd day of September, 1998Original Issue Date. ▇▇▇▇▇▇▇▇'▇, INC. By: __NELNET STUDENT LOAN CORPORATION-2 By ______________________________ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Chairman and Chief Executive Officer ATTEST: ------------------------- ▇▇▇▇▇▇ ▇▇▇▇▇ President, Secretary and Chief Operating Officer EXHIBIT B [Form of Right Certificate] Certificate No. R- __________ Rights NOT EXERCISABLE AFTER OCTOBER 5, 2008 OR EARLIER IF REDEEMED OR EXCHANGED BY THE COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION President CERTIFICATE OF THE COMPANY, AT $0.01 PER RIGHT ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS SUCH TERM IS DEFINED IN THE RIGHTS AGREEMENT (AS HEREINAFTER DEFINED)) AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS REPRESENTED BY THIS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHT CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY BE OR BECOME VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF THE AGREEMENT.]1/ Right Certificate ▇▇▇▇▇▇▇▇'▇, INC. AUTHENTICATION This certifies that , or registered assigns, note is the registered owner one of the number of Rights set forth above, each of which entitles the owner thereof, subject to the terms, provisions Class 2000B-1 Notes designated therein and conditions of the Rights Agreement, dated as of September 23, 1998 (the "Rights Agreement"), between ▇▇▇▇▇▇▇▇'▇, INC., a Delaware corporation (the "Company"), and AMERICAN STOCK TRANSFER & TRUST COMPANY, a New York corporation (the "Rights Agent"), to purchase from the Company at any time after the Separation Date (as such term is defined described in the Rights Agreement) and prior to the close of business (5:00 PM New York time) on October 5, 2008 at the office or offices of the Rights Agent designated for such purpose, or its successors as Rights Agent, one onewithin-hundredth of a fully paid, nonassessable share of Series B Preferred Stock, par value $0.01 per share ("Series B Share") of the Company, at a purchase price of Fifteen Dollars ($15) per one one-hundredth of a share (the "Purchase Price"), upon presentation and surrender of this Right Certificate with the Form of Election to Purchase and related Certificate duly executedmentioned Indenture. The number of rights evidenced by this Right Certificate (and the number of shares that may be purchased upon exercise thereof) set forth above, and the Purchase Price per share set forth above, are the number and Purchase Price as of September 23, 1998 based on the Series B Shares as constituted at such date. Upon the occurrence of a Triggering Event (as such term is defined in the Rights Agreement), if the Rights evidenced by this Right Certificate are beneficially owned by (a) an Acquiring Person or an Affiliate or Associate of any such Acquiring Person (as such terms are defined in the Rights Agreement), (b) a transferee of any such Acquiring Person, Associate or Affiliate (other than a bona fide purchaser for value who has no knowledge that the transferor was an Acquiring Person or an Associate or Affiliate of an Acquiring Person) or (c) under certain circumstances specified in the Rights Agreement, a transferee of a person or entity who, after such transfer, became an Acquiring Person, such Rights shall become null and void and no holder hereof shall have any right with respect to such rights from and after the occurrence of any such Triggering Event. As provided in the Rights Agreement, the Purchase Price and the number and kind of Series B Shares or other securities or other property that may be purchased upon the exercise of the Rights evidenced by this Right Certificate are subject to modification and adjustment upon the happening of certain events. The Board may, at its option, at any time after the right of the Company to redeem the Rights has expired or terminated (with certain exceptions) exchange all or part of the then outstanding and exercisable Rights (other than those held by the Acquiring Person and Affiliates and Associates of the Acquiring Person) for Common Shares (as such term is defined in the Rights Agreement) at an exchange ratio of one Common Share per RightZIONS FIRST NATIONAL BANK, as adjusted. Immediately upon the action of the Board ordering an exchange of the Rights, the Rights affected by such order will no longer be exercisable and thereafter the only right of the holders of such Rights will be to receive the Common Shares issuable by the Company in exchange for such Rights. This Right Certificate is subject to all of the terms, provisions and conditions of the Rights Agreement, which terms, provisions and conditions are hereby incorporated herein by reference and made a part hereof and to which Rights Agreement reference is hereby made for a full description of the rights, limitations of rights, obligations, duties and immunities hereunder of the Rights Agent, the Company and the holders of the Right Certificates, which limitations of rights include the temporary suspension of the exercisability of such Rights for not more than ninety (90) days at the election of the Company and under certain circumstances specified in such Rights Agreement. Copies of the Rights Agreement are on file at the above- mentioned office of the Rights Agent and are also available upon written request to the Company. This Right Certificate, with or without other Right Certificates, upon surrender at the principal office or offices of the Rights Agent designated for such purpose, may be exchanged for another Right Certificate or Right Certificates of like tenor and date evidencing Rights entitling the holder to purchase a like aggregate number of Series B Shares as the Rights evidenced by the Right Certificate or Right Certificates surrendered shall have entitled such holder to purchase. If the Rights evidenced by this Right Certificate shall be exercised in part, the holder shall be entitled to receive upon surrender hereof another Right Certificate or Right Certificates for the number of whole Rights not exercised. Subject to the provisions of the Rights Agreement, the Rights evidenced by this Certificate may be redeemed at a redemption price of One Cent ($0.01) per Right at any time prior to the earlier of (A) the close of business 10 Business Days (as such term in defined in the Rights Agreement) after the Shares Acquisition Date (as such term is defined in the Rights Agreement) or (B) the Final Expiration Date (as such term is defined in the Rights Agreement), unless the period for redemption is extended as permitted in the Rights Agreement. Thereafter, the Board of Directors of the Company (the "Board") may only redeem the Rights in certain specified circumstances including in connection with certain events not involving an Acquiring Person or an Affiliate or Associate of an Acquiring Person. In addition, the Company's right of redemption may be reinstated if, among other things, an Acquiring Person reduces his beneficial ownership to ten percent (10%) or less of the outstanding Common Shares of the Company in a transaction or series of transactions not involving the Company. Immediately upon the action of the Board ordering redemption of the Rights, the Rights will no longer be exercisable, except where the redemption is made in connection with an event not involving an Acquiring Person or Affiliate or Associate of an Acquiring Person (in which circumstance the effective time of the redemption may be deferred); and, in general, thereafter the only right of the holders of the Rights evidenced hereby will be to receive the Redemption Price. The terms of the Rights evidenced by this Certificate may be supplemented or amended without the approval of any holder of the Rights (or the Common Shares) as set forth in the Rights Agreement. No fractional Series B Shares will be issued upon the exercise of any Right or Rights evidenced hereby (other than fractions that are integral multiples of one one-hundredth of a Series B Share, which may, at the election of the Company, be evidenced by depositary receipts), but in lieu thereof a cash payment will be made as provided in the Rights Agreement. No holder of this Right Certificate, as such, shall be entitled to vote or receive dividends or be deemed for any purpose the holder of Series B Shares or of any other securities of the Company that may at any time be issuable on the exercise hereof, nor shall anything contained in the Rights Agreement or herein be construed to confer upon the holder hereof, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action, or to receive notice of meetings or other actions affecting stockholders (except as provided in the Rights Agreement), or to receive dividends or subscription rights, or otherwise, until the Rights evidenced by this Right Certificate shall have been exercised as provided in the Rights Agreement. This Right Certificate shall not be valid or obligatory for any purpose until it shall have been countersigned by the Rights Agent. WITNESS the facsimile signatures of the proper officers of the Company. Dated: ___________, 19__ ▇▇▇▇▇▇▇▇'▇, INC. By_______________________ Name: Title: Attest___________________ Name: Title: (Corporate Seal) Countersigned AMERICAN STOCK TRANSFER & TRUST COMPANY as Rights Agent By___________________ [Form of Reverse Side of Right Certificate] FORM OF ASSIGNMENT (To be executed by the registered holder if such holder desires to transfer the Right Certificate.) FOR VALUE RECEIVED Trustee By __________________________________ hereby sells, assigns and transfers unto Authorized Signatory Authentication Date: ______________________________ ------------------------------------------------------------ ASSIGNMENT FOR VALUE RECEIVED, the undersigned hereby sells, assigns, and transfers unto ______________________(Please print name Social Security or other identifying number___________________) the within note and address all rights thereunder and hereby irrevocably appoints_____________________attorney to transfer the within note on the books kept for registration thereof, with full power of Transferee) substitution in the premises. Dated:__________________________ SIGNED:____________________________________ NOTICE: The signature on this Right Certificate, together Assignment must correspond with all right, title and interest therein, and does hereby irrevocably constitute and appoint the name of the Registered Owner as it appears on the face of the within note in every particular. Signature Guaranteed by: _______________________________ attorneyA Member of The New York Stock Exchange or a State or National Bank EXHIBIT B SERIES 2000 CLOSING CASH FLOW PROJECTIONS CASH FLOW ANALYSIS [EDUCATION LOAN GROUP LOGO] $1,000,000,000 NELNET STUDENT LOAN CORP.-2 TAXABLE STUDENT LOAN ASSET BACKED NOTES MANAGEMENT CASE 5.0% T-BILL PAINEWEBBER INCORPORATED MAY 30, to transfer the within Right Certificate on the books of the within2000 $1,000,000,000 NELNET STUDENT LOAN CORP.-2 TAXABLE STUDENT LOAN ASSET BACKED NOTES MANAGEMENT CASE 5.0% T-named Company, with full power of substitution. Dated: _______________, 19__ ------------------------- Signature Signature Guaranteed:BILL T▇▇▇▇ OF CONTENTS
Appears in 1 contract
IN TESTIMONY WHEREOF. ▇▇▇▇▇▇▇▇'▇I have hereunto set my hand and affixed my official seal in , INCthe day and year last above ------------------ written. has caused this Statement to be signed under its corporate seal by its Chairman ---------------------------------------------- Notary Public in and Chief Executive Officer for said County and its Secretary as of the 23rd day of September, 1998. ▇▇▇▇▇▇▇▇'▇, INC. ByState My Commission expires: ________________________________ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Chairman and Chief Executive Officer ATTEST: ------------------------- ▇▇▇▇▇▇ ▇▇▇▇▇ President, Secretary and Chief Operating Officer ----------------------------- EXHIBIT B [Form of Right Certificate] Certificate No. R- __________ Rights NOT EXERCISABLE AFTER OCTOBER 5, 2008 OR EARLIER IF REDEEMED OR EXCHANGED MONSANTO COMPANY POWER OF ATTORNEY: LITIGATION/CLAIMS KNOW ALL MEN BY THE COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT $0.01 PER RIGHT ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON THESE PRESENTS: That from and after the date hereof (AS SUCH TERM IS DEFINED IN THE RIGHTS AGREEMENT (AS HEREINAFTER DEFINED)) AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS REPRESENTED BY THIS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHT CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY BE OR BECOME VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF THE AGREEMENT.]1/ Right Certificate ▇▇▇▇▇▇▇▇'▇, INC. This certifies that , or registered assigns, is the registered owner of the number of Rights set forth above, each of which entitles the owner thereof, subject to the terms, provisions and conditions of the Rights Agreement, dated as of September 23, 1998 (the "Rights AgreementEffective Date"), between ▇▇▇▇▇▇▇▇'▇, INC.-------------- Monsanto Company, a corporation organized and existing under the laws of the State of Delaware ("New Monsanto") has made, constituted and appointed, and ------------ by these presents does make, constitute and appoint, Solutia Inc., a corporation organized and existing under the laws of the State of Delaware (the "CompanySolutia"), its true and AMERICAN STOCK TRANSFER & TRUST COMPANYlawful agent and attorney, a for New York corporation (the "Rights Agent")Monsanto and in ------- New Monsanto's name, place and stead, for all purposes with respect to purchase from the Company at any time after the Separation Date (Third Party Claims as such term is defined in the Rights Agreement) and prior to the close of business (5:00 PM which Solutia has agreed to indemnify New York time) on October 5, 2008 at the office or offices of the Rights Agent designated for such purpose, or its successors as Rights Agent, one one-hundredth of a fully paid, nonassessable share of Series B Preferred Stock, par value $0.01 per share ("Series B Share") of the Company, at a purchase price of Fifteen Dollars ($15) per one one-hundredth of a share (the "Purchase Price"), upon presentation and surrender of this Right Certificate with the Form of Election to Purchase and related Certificate duly executed. The number of rights evidenced by this Right Certificate (and the number of shares that may be purchased upon exercise thereof) set forth aboveMonsanto, and the Purchase Price per share set forth above, are the number and Purchase Price as of September 23, 1998 based on the Series B Shares as constituted at such date. Upon the occurrence of a Triggering Event (as such term is defined claims against Third Parties which continue to be held by New Monsanto in the Rights Agreement), if the Rights evidenced by this Right Certificate are beneficially owned by (a) an Acquiring Person or an Affiliate or Associate of any such Acquiring Person (as such terms are defined in the Rights Agreement), (b) a transferee of any such Acquiring Person, Associate or Affiliate (other than a bona fide purchaser trust for value who has no knowledge that the transferor was an Acquiring Person or an Associate or Affiliate of an Acquiring Person) or (c) under certain circumstances specified in the Rights Agreement, a transferee of a person or entity who, after such transfer, became an Acquiring PersonSolutia, such Rights shall become null Third Party Claims and void claims against Third Parties being collectively referred to herein as "Claims"; and no holder hereof its attorney ------ shall have any right full power and authorization to take all action with respect to such Claims as New Monsanto can take and which said attorney, acting through its officers or their delegates, who in each case, acting alone, in his or her sole discretion, think best, including without limitation, (i) to represent New Monsanto with respect to such Claims for so long as such Claims are unresolved; (ii) to appear in New Monsanto's name and to execute, deliver and file all pleadings, motions and other filings, at trial, on appeal, or in a proceeding, through counsel retained by Solutia or by officers of Solutia or their delegates, acting alone, or otherwise; (iii) to assert or waive any or all rights with respect to such Claims; (iv) to engage in all phases of discovery with respect to such Claims, including without limitation, to take depositions, defend depositions and propound or respond to other discover requests, such as interrogatories or requests for production of documents; (v) to direct and accept service of process with respect to such claims; (vi) to execute and deliver affidavits as may be necessary or desirable with respect to such Claims; (vii) to agree to and to represent New Monsanto in alternative resolution proceedings, including arbitration or mediation of Claims; (viii) to discuss or negotiate settlement agreements and releases with Third Parties with respect to such Claims on such terms and conditions as Solutia thinks best; (ix) to execute, deliver and if needed, file any and all settlement agreements, releases and other agreements, documents and instruments as may be required and any and all modifications thereto; and (x) to obtain and post bonds pending appeal; hereby giving and granting to New Monsanto's said attorney full power and authority to do and perform all and every act and thing whatsoever necessary to be done in the premises as fully to all intents and purposes as New Monsanto might or could do, hereby ratifying and confirming all that its said attorney may do pursuant to this power. New Monsanto hereby gives and grants to its said attorney from and after the occurrence of any such Triggering Event. As provided Effective Date, full power and authority to do and perform all and every act and thing whatsoever necessary to be done in the Rights Agreementpremises, in order fully to carry out and effectuate the Purchase Price authority herein granted, as fully to all intents and the number purposes as New Monsanto might or could do if acting through its own officers or delegates, and kind of Series B Shares or other securities or other property New Monsanto hereby ratifies and confirms all that its said attorney may be purchased upon the exercise of the Rights evidenced by pursuant to this Right Certificate are subject power. New Monsanto hereby further authorizes and empowers its said attorney from and after Effective Date to modification substitute and adjustment upon the happening of certain events. The Board may, at its option, at any time after the right of the Company to redeem the Rights has expired or terminated (with certain exceptions) exchange all or part of the then outstanding and exercisable Rights (other than those held by the Acquiring Person and Affiliates and Associates of the Acquiring Person) for Common Shares (as such term is defined appoint in the Rights Agreement) at an exchange ratio place and stead of its said attorney, or to employ agents or sub-agents as Solutia thinks best, one Common Share per Right, or more attorney or attorneys to exercise for New Monsanto as adjusted. Immediately upon the action of the Board ordering an exchange of the Rights, the Rights affected by such order will no longer be exercisable and thereafter the only right of the holders of such Rights will be to receive the Common Shares issuable by the Company in exchange for such Rights. This Right Certificate is subject to its attorney or attorneys any or all of the terms, provisions powers and conditions of the Rights Agreement, which terms, provisions and conditions are authorities hereby incorporated herein by reference and made a part hereof conferred; and to which Rights Agreement reference is hereby made for a full description of revoke such appointment or appointments from time to time, and to substitute or appoint any other or others in the rights, limitations of rights, obligations, duties and immunities hereunder of the Rights Agent, the Company and the holders of the Right Certificates, which limitations of rights include the temporary suspension of the exercisability place of such Rights for not more than ninety (90) days at the election of the Company and under certain circumstances specified in such Rights Agreement. Copies of the Rights Agreement are on file at the above- mentioned office of the Rights Agent and are also available upon written request attorney or attorneys as Solutia shall from time to the Company. This Right Certificate, with or without other Right Certificates, upon surrender at the principal office or offices of the Rights Agent designated for such purpose, may be exchanged for another Right Certificate or Right Certificates of like tenor and date evidencing Rights entitling the holder to purchase a like aggregate number of Series B Shares as the Rights evidenced by the Right Certificate or Right Certificates surrendered shall have entitled such holder to purchase. If the Rights evidenced by this Right Certificate shall be exercised in part, the holder shall be entitled to receive upon surrender hereof another Right Certificate or Right Certificates for the number of whole Rights not exercised. Subject to the provisions of the Rights Agreement, the Rights evidenced by this Certificate may be redeemed at a redemption price of One Cent ($0.01) per Right at any time prior to the earlier of (A) the close of business 10 Business Days (as such term in defined in the Rights Agreement) after the Shares Acquisition Date (as such term is defined in the Rights Agreement) or (B) the Final Expiration Date (as such term is defined in the Rights Agreement), unless the period for redemption is extended as permitted in the Rights Agreement. Thereafter, the Board of Directors of the Company (the "Board") may only redeem the Rights in certain specified circumstances including in connection with certain events not involving an Acquiring Person or an Affiliate or Associate of an Acquiring Person. In addition, the Company's right of redemption may be reinstated if, among other things, an Acquiring Person reduces his beneficial ownership to ten percent (10%) or less of the outstanding Common Shares of the Company in a transaction or series of transactions not involving the Company. Immediately upon the action of the Board ordering redemption of the Rights, the Rights will no longer be exercisable, except where the redemption is made in connection with an event not involving an Acquiring Person or Affiliate or Associate of an Acquiring Person (in which circumstance the effective time of the redemption may be deferred); and, in general, thereafter the only right of the holders of the Rights evidenced hereby will be to receive the Redemption Price. The terms of the Rights evidenced by this Certificate may be supplemented or amended without the approval of any holder of the Rights (or the Common Shares) as set forth in the Rights Agreement. No fractional Series B Shares will be issued upon the exercise of any Right or Rights evidenced hereby (other than fractions that are integral multiples of one one-hundredth of a Series B Share, which may, at the election of the Company, be evidenced by depositary receipts), but in lieu thereof a cash payment will be made as provided in the Rights Agreement. No holder of this Right Certificate, as such, shall be entitled to vote or receive dividends or be deemed for any purpose the holder of Series B Shares or of any other securities of the Company that may at any time be issuable on the exercise hereof, nor shall anything contained in the Rights Agreement or herein be construed to confer upon the holder hereof, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action, or to receive notice of meetings or other actions affecting stockholders (except as provided in the Rights Agreement), or to receive dividends or subscription rights, or otherwise, until the Rights evidenced by this Right Certificate shall have been exercised as provided in the Rights Agreement. This Right Certificate shall not be valid or obligatory for any purpose until it shall have been countersigned by the Rights Agent. WITNESS the facsimile signatures of the proper officers of the Company. Dated: ___________, 19__ ▇▇▇▇▇▇▇▇'▇, INC. By_______________________ Name: Title: Attest___________________ Name: Title: (Corporate Seal) Countersigned AMERICAN STOCK TRANSFER & TRUST COMPANY as Rights Agent By___________________ [Form of Reverse Side of Right Certificate] FORM OF ASSIGNMENT (To be executed by the registered holder if such holder desires to transfer the Right Certificatethink fit.) FOR VALUE RECEIVED __________________________________ hereby sells, assigns and transfers unto __________________________ ------------------------------------------------------------ (Please print name and address of Transferee) ____________________________________________________________ this Right Certificate, together with all right, title and interest therein, and does hereby irrevocably constitute and appoint __________________ attorney, to transfer the within Right Certificate on the books of the within-named Company, with full power of substitution. Dated: _______________, 19__ ------------------------- Signature Signature Guaranteed:
Appears in 1 contract
Sources: Distribution Agreement (Solutia Inc)
IN TESTIMONY WHEREOF. ▇▇▇▇▇▇▇▇'▇the Board of Directors of NELNET EDUCATION LOAN FUNDING, INC. has caused this Statement note to be signed under its corporate seal by its Chairman and Chief Executive Officer and its Secretary as of the 23rd day of September, 1998. ▇▇▇▇▇▇▇▇'▇, INC. By: ________________________________ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Chairman and Chief Executive Officer ATTEST: ------------------------- ▇▇▇▇▇▇ ▇▇▇▇▇ President, Secretary and Chief Operating Officer EXHIBIT B [Form of Right Certificate] Certificate No. R- __________ Rights NOT EXERCISABLE AFTER OCTOBER 5, 2008 OR EARLIER IF REDEEMED OR EXCHANGED BY THE COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT $0.01 PER RIGHT ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS SUCH TERM IS DEFINED IN THE RIGHTS AGREEMENT (AS HEREINAFTER DEFINED)) AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS REPRESENTED BY THIS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHT CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY BE OR BECOME VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF THE AGREEMENT.]1/ Right Certificate ▇▇▇▇▇▇▇▇'▇, INC. This certifies that , or registered assigns, is the registered owner of the number of Rights set forth above, each of which entitles the owner thereof, subject to the terms, provisions and conditions of the Rights Agreement, dated as of September 23, 1998 (the "Rights Agreement"), between ▇▇▇▇▇▇▇▇'▇, INC., a Delaware corporation (the "Company"), and AMERICAN STOCK TRANSFER & TRUST COMPANY, a New York corporation (the "Rights Agent"), to purchase from the Company at any time after the Separation Date (as such term is defined in the Rights Agreement) and prior to the close of business (5:00 PM New York time) on October 5, 2008 at the office or offices of the Rights Agent designated for such purpose, or its successors as Rights Agent, one one-hundredth of a fully paid, nonassessable share of Series B Preferred Stock, par value $0.01 per share ("Series B Share") of the Company, at a purchase price of Fifteen Dollars ($15) per one one-hundredth of a share (the "Purchase Price"), upon presentation and surrender of this Right Certificate with the Form of Election to Purchase and related Certificate duly executed. The number of rights evidenced by this Right Certificate (and the number of shares that may be purchased upon exercise thereof) set forth above, and the Purchase Price per share set forth above, are the number and Purchase Price as of September 23, 1998 based on the Series B Shares as constituted at such date. Upon the occurrence of a Triggering Event (as such term is defined in the Rights Agreement), if the Rights evidenced by this Right Certificate are beneficially owned by (a) an Acquiring Person or an Affiliate or Associate of any such Acquiring Person (as such terms are defined in the Rights Agreement), (b) a transferee of any such Acquiring Person, Associate or Affiliate (other than a bona fide purchaser for value who has no knowledge that the transferor was an Acquiring Person or an Associate or Affiliate of an Acquiring Person) or (c) under certain circumstances specified in the Rights Agreement, a transferee of a person or entity who, after such transfer, became an Acquiring Person, such Rights shall become null and void and no holder hereof shall have any right with respect to such rights from and after the occurrence of any such Triggering Event. As provided in the Rights Agreement, the Purchase Price and the number and kind of Series B Shares or other securities or other property that may be purchased upon the exercise of the Rights evidenced by this Right Certificate are subject to modification and adjustment upon the happening of certain events. The Board may, at its option, at any time after the right of the Company to redeem the Rights has expired or terminated (with certain exceptions) exchange all or part of the then outstanding and exercisable Rights (other than those held executed by the Acquiring Person and Affiliates and Associates of the Acquiring Person) for Common Shares (as such term is defined in the Rights Agreement) at an exchange ratio of one Common Share per Right, as adjusted. Immediately upon the action of the Board ordering an exchange of the Rights, the Rights affected by such order will no longer be exercisable and thereafter the only right of the holders of such Rights will be to receive the Common Shares issuable by the Company in exchange for such Rights. This Right Certificate is subject to all of the terms, provisions and conditions of the Rights Agreement, which terms, provisions and conditions are hereby incorporated herein by reference and made a part hereof and to which Rights Agreement reference is hereby made for a full description of the rights, limitations of rights, obligations, duties and immunities hereunder of the Rights Agent, the Company and the holders of the Right Certificates, which limitations of rights include the temporary suspension of the exercisability of such Rights for not more than ninety (90) days at the election of the Company and under certain circumstances specified in such Rights Agreement. Copies of the Rights Agreement are on file at the above- mentioned office of the Rights Agent and are also available upon written request to the Company. This Right Certificate, with manual or without other Right Certificates, upon surrender at the principal office or offices of the Rights Agent designated for such purpose, may be exchanged for another Right Certificate or Right Certificates of like tenor and date evidencing Rights entitling the holder to purchase a like aggregate number of Series B Shares as the Rights evidenced by the Right Certificate or Right Certificates surrendered shall have entitled such holder to purchase. If the Rights evidenced by this Right Certificate shall be exercised in part, the holder shall be entitled to receive upon surrender hereof another Right Certificate or Right Certificates for the number of whole Rights not exercised. Subject to the provisions of the Rights Agreement, the Rights evidenced by this Certificate may be redeemed at a redemption price of One Cent ($0.01) per Right at any time prior to the earlier of (A) the close of business 10 Business Days (as such term in defined in the Rights Agreement) after the Shares Acquisition Date (as such term is defined in the Rights Agreement) or (B) the Final Expiration Date (as such term is defined in the Rights Agreement), unless the period for redemption is extended as permitted in the Rights Agreement. Thereafter, the Board of Directors of the Company (the "Board") may only redeem the Rights in certain specified circumstances including in connection with certain events not involving an Acquiring Person or an Affiliate or Associate of an Acquiring Person. In addition, the Company's right of redemption may be reinstated if, among other things, an Acquiring Person reduces his beneficial ownership to ten percent (10%) or less of the outstanding Common Shares of the Company in a transaction or series of transactions not involving the Company. Immediately upon the action of the Board ordering redemption of the Rights, the Rights will no longer be exercisable, except where the redemption is made in connection with an event not involving an Acquiring Person or Affiliate or Associate of an Acquiring Person (in which circumstance the effective time of the redemption may be deferred); and, in general, thereafter the only right of the holders of the Rights evidenced hereby will be to receive the Redemption Price. The terms of the Rights evidenced by this Certificate may be supplemented or amended without the approval of any holder of the Rights (or the Common Shares) as set forth in the Rights Agreement. No fractional Series B Shares will be issued upon the exercise of any Right or Rights evidenced hereby (other than fractions that are integral multiples of one one-hundredth of a Series B Share, which may, at the election of the Company, be evidenced by depositary receipts), but in lieu thereof a cash payment will be made as provided in the Rights Agreement. No holder of this Right Certificate, as such, shall be entitled to vote or receive dividends or be deemed for any purpose the holder of Series B Shares or of any other securities of the Company that may at any time be issuable on the exercise hereof, nor shall anything contained in the Rights Agreement or herein be construed to confer upon the holder hereof, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action, or to receive notice of meetings or other actions affecting stockholders (except as provided in the Rights Agreement), or to receive dividends or subscription rights, or otherwise, until the Rights evidenced by this Right Certificate shall have been exercised as provided in the Rights Agreement. This Right Certificate shall not be valid or obligatory for any purpose until it shall have been countersigned by the Rights Agent. WITNESS the facsimile signatures of the proper officers President and Secretary of the CompanyIssuer all as of the Original Issue Date. Dated: ___________, 19__ ▇▇▇▇▇▇▇▇'▇NELNET EDUCATION LOAN FUNDING, INC. By_______________________ NameBy ------------------------------------- President By ------------------------------------- Secretary CERTIFICATE OF AUTHENTICATION This note is one of the Class A-5a Notes designated therein and described in the within-mentioned Indenture. WELLS FARGO BANK, NATIONAL ASSOCIATION, as Indenture Trustee By --------------------------------------- Authorized Signatory Authentication Date: Title: Attest___________________ Name: Title: (Corporate Seal) Countersigned AMERICAN STOCK TRANSFER & TRUST COMPANY as Rights Agent By___________________ [Form of Reverse Side of Right Certificate] FORM OF ASSIGNMENT (To be executed by the registered holder if such holder desires to transfer the Right Certificate.) FOR VALUE RECEIVED __________________________________ RECEIVED, the undersigned hereby sells, assigns assigns, and transfers unto __________ (Social Security or other identifying number _________________ ------------------------------------------------------------ (Please print name ) the within note and address of Transferee) __________________________________________________all rights thereunder and hereby irrevocably appoints __________ this Right Certificate, together with all right, title and interest therein, and does hereby irrevocably constitute and appoint __________________ attorney, attorney to transfer the within Right Certificate note on the books of the within-named Companykept for registration thereof, with full power of substitutionsubstitution in the premises. Dated: _______________, 19__ ------------------------- SIGNED: ------------------ ------------------------------------ NOTICE: The signature on this Assignment must correspond with the name of the Registered Owner as it appears on the face of the within note in every particular. Signature Guaranteed by: ----------------------------------------- Signature(s) must be guaranteed by an eligible guarantor institution pursuant to Securities and Exchange Commission Rule 17Ad-15 that is a participant in a signature guarantor program recognized by the Indenture Trustee ANNEX 1 REMARKETING TERMS NOTICE AND SPREAD DETERMINATION NOTICE ANNEX 2 SCHEDULE OF EXCHANGES IN GLOBAL NOTE The following exchanges of a part of this Global Certificate have been made: ----------- --------------------- ----------------- -------------------- ------------------ Amount of Principal Amount of Amount of Decrease Increase in this Global Signature Guaranteed:of in Principal Amount Principal Amount Certificate Authorized of this Global of this Global following such Officer of Date of Certificate Certificate Decrease (or Indenture Trustee Exchange Increase) ----------- --------------------- ----------------- -------------------- ------------------
Appears in 1 contract
Sources: Indenture of Trust (Nelnet Education Loan Funding Inc)
IN TESTIMONY WHEREOF. ▇▇▇▇▇▇▇▇'▇NFO WORLDWIDE, INC. has caused this Statement to be signed under its corporate seal by its Chairman and Chief Executive Officer and its Secretary as of the 23rd 2nd day of SeptemberOctober, 1998. ▇▇▇▇▇▇▇▇'▇NFO WORLDWIDE, INC. By: ________________________________ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Chairman and Chief Executive Officer ATTEST: ------------------------- -------------------------------- ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ President, Secretary and Chief Operating Officer EXHIBIT B [Form of Right Certificate] Certificate No. R- __________ Rights NOT EXERCISABLE AFTER OCTOBER 515, 2008 OR EARLIER IF REDEEMED OR EXCHANGED BY THE COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT $0.01 PER RIGHT ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS SUCH TERM IS DEFINED IN THE RIGHTS AGREEMENT (AS HEREINAFTER DEFINED)) AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS REPRESENTED BY THIS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHT CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY BE OR BECOME VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF THE AGREEMENT.]1/ Right Certificate ▇▇▇▇▇▇▇▇'▇NFO WORLDWIDE, INC. This certifies that ____________________, or registered assigns, is the registered owner of the number of Rights set forth above, each of which entitles the owner thereof, subject to the terms, provisions and conditions of the Rights Agreement, dated as of September 23October 5, 1998 (the "Rights Agreement"), between ▇▇▇▇▇▇▇▇'▇NFO WORLDWIDE, INC., a Delaware corporation (the "Company"), and AMERICAN STOCK TRANSFER & STATE STREET BANK AND TRUST COMPANY, a New York corporation Delaware limited partnership (the "Rights Agent"), to purchase from the Company at any time after the Separation Date (as such term is defined in the Rights Agreement) and prior to the close of business (5:00 PM New York time) on October 515, 2008 at the office or offices of the Rights Agent designated for such purpose, or its successors as Rights Agent, one one-hundredth of a fully paid, nonassessable share of Series B A Preferred Stock, par value $0.01 per share ("Series B A Share") of the Company, at a purchase price of Fifteen Fifty ----------------- 1/ The portion of the legend in brackets shall be inserted if applicable and shall replace the preceding sentence. Dollars ($1550.00) per one one-hundredth of a share (the "Purchase Price"), upon presentation and surrender of this Right Certificate with the Form of Election to Purchase and related Certificate duly executed. The number of rights evidenced by this Right Certificate (and the number of shares that may be purchased upon exercise thereof) set forth above, and the Purchase Price per share set forth above, are the number and Purchase Price as of September 23October 15, 1998 based on the Series B A Shares as constituted at such date. Upon the occurrence of a Triggering Event (as such term is defined in the Rights Agreement), if the Rights evidenced by this Right Certificate are beneficially owned by (a) an Acquiring Person or an Affiliate or Associate of any such Acquiring Person (as such terms are defined in the Rights Agreement), (b) a transferee of any such Acquiring Person, Associate or Affiliate (other than a bona fide purchaser for value who has no knowledge that the transferor was an Acquiring Person or an Associate or Affiliate of an Acquiring Person) or (c) under certain circumstances specified in the Rights Agreement, a transferee of a person or entity who, after such transfer, became an Acquiring Person, such Rights shall become null and void and no holder hereof shall have any right with respect to such rights from and after the occurrence of any such Triggering Event. As provided in the Rights Agreement, the Purchase Price and the number and kind of Series B A Shares or other securities or other property that may be purchased upon the exercise of the Rights evidenced by this Right Certificate are subject to modification and adjustment upon the happening of certain events. The Board may, at its option, at any time after the right of the Company to redeem the Rights has expired or terminated (with certain exceptions) exchange all or part of the then outstanding and exercisable Rights (other than those held by the Acquiring Person and Affiliates and Associates of the Acquiring Person) for Common Shares (as such term is defined in the Rights Agreement) at an exchange ratio of one Common Share per Right, as adjusted. Immediately upon the action of the Board ordering an exchange of the Rights, the Rights affected by such order will no longer be exercisable and thereafter the only right of the holders of such Rights will be to receive the Common Shares issuable by the Company in exchange for such Rights. This Right Certificate is subject to all of the terms, provisions and conditions of the Rights Agreement, which terms, provisions and conditions are hereby incorporated herein by reference and made a part hereof and to which Rights Agreement reference is hereby made for a full description of the rights, limitations of rights, obligations, duties and immunities hereunder of the Rights Agent, the Company and the holders of the Right Certificates, which limitations of rights include the temporary suspension of the exercisability of such Rights for not more than ninety (90) days at the election of the Company and under certain circumstances specified in such Rights Agreement. Copies of the Rights Agreement are on file at the above- mentioned office of the Rights Agent and are also available upon written request to the Company. This Right Certificate, with or without other Right Certificates, upon surrender at the principal office or offices of the Rights Agent designated for such purpose, may be exchanged for another Right Certificate or Right Certificates of like tenor and date evidencing Rights entitling the holder to purchase a like aggregate number of Series B A Shares as the Rights evidenced by the Right Certificate or Right Certificates surrendered shall have entitled such holder to purchase. If the Rights evidenced by this Right Certificate shall be exercised in part, the holder shall be entitled to receive upon surrender hereof another Right Certificate or Right Certificates for the number of whole Rights not exercised. Subject to the provisions of the Rights Agreement, the Rights evidenced by this Certificate may be redeemed at a redemption price of One Cent ($0.01) per Right at any time prior to the earlier of (A) the close of business 10 Business Days (as such term in defined in the Rights Agreement) after the Shares Acquisition Date (as such term is defined in the Rights Agreement) or (B) the Final Expiration Date (as such term is defined in the Rights Agreement), unless the period for redemption is extended as permitted in the Rights Agreement. Thereafter, the Board of Directors of the Company (the "Board") may only redeem the Rights in certain specified circumstances including in connection with certain events not involving an Acquiring Person or an Affiliate or Associate of an Acquiring Person. In addition, the Company's right of redemption may be reinstated if, among other things, an Acquiring Person reduces his beneficial ownership to ten percent (10%) or less of the outstanding Common Shares of the Company in a transaction or series of transactions not involving the Company. Immediately upon the action of the Board ordering redemption of the Rights, the Rights will no longer be exercisable, except where the redemption is made in connection with an event not involving an Acquiring Person or Affiliate or Associate of an Acquiring Person (in which circumstance the effective time of the redemption may be deferred); and, in general, thereafter the only right of the holders of the Rights evidenced hereby will be to receive the Redemption Price. The terms of the Rights evidenced by this Certificate may be supplemented or amended without the approval of any holder of the Rights (or the Common Shares) as set forth in the Rights Agreement. No fractional Series B A Shares will be issued upon the exercise of any Right or Rights evidenced hereby (other than fractions that are integral multiples of one one-hundredth of a Series B A Share, which may, at the election of the Company, be evidenced by depositary receipts), but in lieu thereof a cash payment will be made as provided in the Rights Agreement. No holder of this Right Certificate, as such, shall be entitled to vote or receive dividends or be deemed for any purpose the holder of Series B A Shares or of any other securities of the Company that may at any time be issuable on the exercise hereof, nor shall anything contained in the Rights Agreement or herein be construed to confer upon the holder hereof, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action, or to receive notice of meetings or other actions affecting stockholders (except as provided in the Rights Agreement), or to receive dividends or subscription rights, or otherwise, until the Rights evidenced by this Right Certificate shall have been exercised as provided in the Rights Agreement. This Right Certificate shall not be valid or obligatory for any purpose until it shall have been countersigned by the Rights Agent. WITNESS the facsimile signatures of the proper officers of the Company. Dated: ___________, 19__ ▇▇▇▇▇▇▇▇'▇NFO WORLDWIDE, INC. By_______________________ Name: Title: Attest___________________ Name: Title: (Corporate Seal) Countersigned AMERICAN STOCK TRANSFER & STATE STREET BANK AND TRUST COMPANY as Rights Agent By___________________ [Form of Reverse Side of Right Certificate] FORM OF ASSIGNMENT (To be executed by the registered holder if such holder desires to transfer the Right Certificate.) FOR VALUE RECEIVED __________________________________ hereby sells, assigns and transfers unto ___________________________________________________ ------------------------------------------------------------ ______________________________________________________________________________ (Please print name and address of Transferee) ____________________________________________________________ this Right Certificate, together with all right, title and interest therein, and does hereby irrevocably constitute and appoint __________________ attorney, to transfer the within Right Certificate on the books of the within-named Company, with full power of substitution. Dated: _______________, 19__ ------------------------- Signature Signature Guaranteed: Certificate The undersigned hereby certifies by checking the appropriate boxes that:
Appears in 1 contract
Sources: Rights Agreement (Nfo Worldwide Inc)
IN TESTIMONY WHEREOF. ▇▇▇▇▇▇▇▇'▇, INC. the undersigned corporation has caused this Statement statement to be signed under its corporate seal by its Chairman and Chief Executive Officer and its Secretary as of the 23rd a duly authorized officer thereof this ___ day of September, 1998. ▇▇▇▇▇▇▇▇'▇, INC. By: ________________________________ ▇▇▇▇▇▇ ▇, 2000. ▇▇▇▇▇▇▇▇ Chairman and Chief Executive Officer ATTESTKENNAMETAL INC. By: ------------------------- ▇▇▇▇▇▇ ▇▇▇▇▇ President, Secretary and Chief Operating Officer -------------------------------- Title: ----------------------------- EXHIBIT B FORM OF RIGHTS CERTIFICATE [attached] 77 [Form of Right Rights Certificate] Certificate No. R- __________ Rights ------------ ---------------- NOT EXERCISABLE AFTER OCTOBER 5NOVEMBER 2, 2008 2010 (UNLESS OTHERWISE EXTENDED) OR EARLIER IF REDEEMED OR EXCHANGED BY THE COMPANYCORPORATION. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANYCORPORATION, AT $0.01 PER RIGHT ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS SUCH TERM IS DEFINED IN THE RIGHTS AGREEMENT (AS HEREINAFTER DEFINED)) AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID. [IF THE RIGHTS REPRESENTED BY THIS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY ISSUED TO A PERSON WHO WAS OR BECAME IS AN ACQUIRING PERSON OR AN ASSOCIATE OR AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN OR A TRANSFEREE OF THE RIGHTS AGREEMENT). ACCORDINGLYPREVIOUSLY OWNED BY SUCH PERSONS, THIS RIGHT RIGHTS CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY BE OR BECOME NULL AND VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF THE AGREEMENT.]1/ Right Certificate ▇▇▇▇▇▇▇▇'▇, RIGHTS AGREEMENT. RIGHTS CERTIFICATE KENNAMETAL INC. This certifies that , or registered assigns, is the registered owner of the number of Rights set forth above, each of which entitles the owner thereof, subject to the terms, provisions and conditions of the Rights Agreement, dated as of September 23, 1998 (the "Rights Agreement"), between ▇▇▇▇▇▇▇▇'▇, INC., a Delaware corporation (the "Company"), and AMERICAN STOCK TRANSFER & TRUST COMPANY, a New York corporation (the "Rights Agent"), to purchase from the Company at any time after the Separation Date (as such term is defined in the Rights Agreement) and prior to the close of business (5:00 PM New York time) on October 5, 2008 at the office or offices of the Rights Agent designated for such purpose, or its successors as Rights Agent, one one-hundredth of a fully paid, nonassessable share of Series B Preferred Stock, par value $0.01 per share ("Series B Share") of the Company, at a purchase price of Fifteen Dollars ($15) per one one-hundredth of a share (the "Purchase Price"), upon presentation and surrender of this Right Certificate with the Form of Election to Purchase and related Certificate duly executed. The number of rights evidenced by this Right Certificate (and the number of shares that may be purchased upon exercise thereof) set forth above, and the Purchase Price per share set forth above, are the number and Purchase Price as of September 23, 1998 based on the Series B Shares as constituted at such date. Upon the occurrence of a Triggering Event (as such term is defined in the Rights Agreement), if the Rights evidenced by this Right Certificate are beneficially owned by (a) an Acquiring Person or an Affiliate or Associate of any such Acquiring Person (as such terms are defined in the Rights Agreement), (b) a transferee of any such Acquiring Person, Associate or Affiliate (other than a bona fide purchaser for value who has no knowledge that the transferor was an Acquiring Person or an Associate or Affiliate of an Acquiring Person) or (c) under certain circumstances specified in the Rights Agreement, a transferee of a person or entity who, after such transfer, became an Acquiring Person, such Rights shall become null and void and no holder hereof shall have any right with respect to such rights from and after the occurrence of any such Triggering Event. As provided in the Rights Agreement, the Purchase Price and the number and kind of Series B Shares or other securities or other property that may be purchased upon the exercise of the Rights evidenced by this Right Certificate are subject to modification and adjustment upon the happening of certain events. The Board may, at its option, at any time after the right of the Company to redeem the Rights has expired or terminated (with certain exceptions) exchange all or part of the then outstanding and exercisable Rights (other than those held by the Acquiring Person and Affiliates and Associates of the Acquiring Person) for Common Shares (as such term is defined in the Rights Agreement) at an exchange ratio of one Common Share per Right, as adjusted. Immediately upon the action of the Board ordering an exchange of the Rights, the Rights affected by such order will no longer be exercisable and thereafter the only right of the holders of such Rights will be to receive the Common Shares issuable by the Company in exchange for such Rights. This Right Certificate is subject to all of the terms, provisions and conditions of the Rights Agreement, which terms, provisions and conditions are hereby incorporated herein by reference and made a part hereof and to which Rights Agreement reference is hereby made for a full description of the rights, limitations of rights, obligations, duties and immunities hereunder of the Rights Agent, the Company and the holders of the Right Certificates, which limitations of rights include the temporary suspension of the exercisability of such Rights for not more than ninety (90) days at the election of the Company and under certain circumstances specified in such Rights Agreement. Copies of the Rights Agreement are on file at the above- mentioned office of the Rights Agent and are also available upon written request to the Company. This Right Certificate, with or without other Right Certificates, upon surrender at the principal office or offices of the Rights Agent designated for such purpose, may be exchanged for another Right Certificate or Right Certificates of like tenor and date evidencing Rights entitling the holder to purchase a like aggregate number of Series B Shares as the Rights evidenced by the Right Certificate or Right Certificates surrendered shall have entitled such holder to purchase. If the Rights evidenced by this Right Certificate shall be exercised in part, the holder shall be entitled to receive upon surrender hereof another Right Certificate or Right Certificates for the number of whole Rights not exercised. Subject to the provisions of the Rights Agreement, the Rights evidenced by this Certificate may be redeemed at a redemption price of One Cent ($0.01) per Right at any time prior to the earlier of (A) the close of business 10 Business Days (as such term in defined in the Rights Agreement) after the Shares Acquisition Date (as such term is defined in the Rights Agreement) or (B) the Final Expiration Date (as such term is defined in the Rights Agreement), unless the period for redemption is extended as permitted in the Rights Agreement. Thereafter, the Board of Directors of the Company (the "Board") may only redeem the Rights in certain specified circumstances including in connection with certain events not involving an Acquiring Person or an Affiliate or Associate of an Acquiring Person. In addition, the Company's right of redemption may be reinstated if, among other things, an Acquiring Person reduces his beneficial ownership to ten percent (10%) or less of the outstanding Common Shares of the Company in a transaction or series of transactions not involving the Company. Immediately upon the action of the Board ordering redemption of the Rights, the Rights will no longer be exercisable, except where the redemption is made in connection with an event not involving an Acquiring Person or Affiliate or Associate of an Acquiring Person (in which circumstance the effective time of the redemption may be deferred); and, in general, thereafter the only right of the holders of the Rights evidenced hereby will be to receive the Redemption Price. The terms of the Rights evidenced by this Certificate may be supplemented or amended without the approval of any holder of the Rights (or the Common Shares) as set forth in the Rights Agreement. No fractional Series B Shares will be issued upon the exercise of any Right or Rights evidenced hereby (other than fractions that are integral multiples of one one-hundredth of a Series B Share, which may, at the election of the Company, be evidenced by depositary receipts), but in lieu thereof a cash payment will be made as provided in the Rights Agreement. No holder of this Right Certificate, as such, shall be entitled to vote or receive dividends or be deemed for any purpose the holder of Series B Shares or of any other securities of the Company that may at any time be issuable on the exercise hereof, nor shall anything contained in the Rights Agreement or herein be construed to confer upon the holder hereof, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action, or to receive notice of meetings or other actions affecting stockholders (except as provided in the Rights Agreement), or to receive dividends or subscription rights, or otherwise, until the Rights evidenced by this Right Certificate shall have been exercised as provided in the Rights Agreement. This Right Certificate shall not be valid or obligatory for any purpose until it shall have been countersigned by the Rights Agent. WITNESS the facsimile signatures of the proper officers of the Company. Dated: ___________, 19__ ▇▇▇▇▇▇▇▇'▇, INC. By_______________________ Name: Title: Attest___________________ Name: Title: (Corporate Seal) Countersigned AMERICAN STOCK TRANSFER & TRUST COMPANY as Rights Agent By___________________ [Form of Reverse Side of Right Certificate] FORM OF ASSIGNMENT (To be executed by the registered holder if such holder desires to transfer the Right Certificate.) FOR VALUE RECEIVED __________________________________ hereby sells, assigns and transfers unto __________________________ ------------------------------------------------------------ (Please print name and address of Transferee) ____________________________________________________________ , or registered assigns, is the registered owner of the number of Rights set forth above, each of which entitles the owner thereof, subject to the terms, provisions and conditions of the Rights Agreement effective November 2, 2000 ("Rights Agreement") between Kennametal Inc., a Pennsylvania corporation (the "Corporation"), and ChaseMellon Shareholder Services, L.L.C., a New Jersey limited liability company (the "Rights Agent"), to purchase from the Corporation at any time after the Distribution Date (as that term is defined in the Rights Agreement) and prior to the close of business on November 2, 2010 (unless otherwise extended) (the "Final Expiration Date") at the principal office of the Rights Agent, or its successors as Rights Agent, in Pittsburgh, Pennsylvania, one one-hundredth (1/100) of a fully paid and nonassessable share of Series One of Class A Preferred Stock, no par value per share ("Series One Preferred Stock"), of the Corporation at a purchase price of $120 per one one-hundredth of a share, as the same may from time to time be adjusted in accordance with the Rights Agreement (the "Purchase Price"), upon presentation and surrender of this Right Rights Certificate with the Form of Election to Purchase duly executed. As provided in the Rights Agreement, the Purchase Price and the number of one one-hundredths of a share of Series One Preferred Stock which may be purchased upon the exercise of the Rights evidenced by this Rights Certificate are subject to modification and adjustment upon the happening of certain events and, upon the happening of certain events, securities other than shares of Series One Preferred Stock, or other property, may be acquired upon exercise of the Rights evidenced by this Rights Certificate, together with as provided by the Rights Agreement. This Rights Certificate is subject to all rightof the terms, title provisions and interest thereinconditions of the Rights Agreement, which terms, provisions and conditions are incorporated herein by reference and made a part hereof, and does hereby irrevocably constitute reference to the Rights Agreement is made for a full description of the rights, limitations of rights, obligations, duties and appoint __________________ attorneyimmunities of the Rights Agent, the corporation and the holders of record of Rights Certificates. Copies of the Rights Agreement are on file at the principal executive office of the Corporation. This Rights Certificate, with or without other Rights Certificates, upon surrender at the shareholder services office of the Rights Agent designated for that purpose, may be exchanged for another Rights Certificate or Rights Certificates of like tenor and date evidencing Rights entitling the holder of record to transfer purchase the within same aggregate number of shares of Series One Preferred Stock as the Rights evidenced by the Rights Certificate or Rights Certificates surrendered entitled that holder to purchase. If this Rights Certificate is exercised in part, the holder shall be entitled to receive, upon surrender hereof, another Rights Certificate or Rights Certificates for the number of whole Rights not exercised. Subject to the provisions of the Rights Agreement, the Rights evidenced by this Certificate may be redeemed by the Corporation by action of the Board of Directors at its option at a redemption price of $0.01 per Right at any time prior to the earlier of the close of business on (i) the tenth day following the Stock Acquisition Date (as that term is defined in the Rights Agreement) and (ii) the Final Expiration Date. No fractional shares of Series One Preferred Stock or other securities of the Corporation are required to be issued upon the exercise of any Right or Rights evidenced hereby, and in lieu thereof, as provided in the Rights Agreement, a cash payment may be made. No holder of this Rights Certificate shall be entitled to vote or receive dividends or be deemed for any purpose the holder of Series One Preferred Stock or of any other securities of the Corporation which may at any time be issuable on the books exercise hereof, nor shall anything contained in the Rights Agreement or herein be construed to confer upon the holder hereof, as such, any of the within-named Companyrights of a shareholder of the Corporation or any right to vote for the election of directors or upon any matter submitted to shareholders at any meeting thereof, with full power or to receive notice of substitutionmeetings or other actions affecting shareholders or to receive dividends or subscription rights, or otherwise, until the Right or Rights evidenced by this Rights Certificate shall have been exercised as provided in the Rights Agreement. Dated: _______________, 19__ ------------------------- Signature Signature Guaranteed:This Rights Certificate shall not be valid or obligatory for any purpose until it shall have been countersigned by the Rights Agent.
Appears in 1 contract
Sources: Rights Agreement (Kennametal Inc)
IN TESTIMONY WHEREOF. ▇▇▇▇▇▇▇▇'▇, INC. the Board of Directors of NELNET STUDENT LOAN CORPORATION-2 has caused this Statement note to be signed under its corporate seal executed by its Chairman the manual or facsimile signatures of the President and Chief Executive Officer and its Secretary of the Issuer all as of the 23rd day Original Issue Date. NELNET STUDENT LOAN CORPORATION-2 By ----------------------------------------------- President By ----------------------------------------------- Secretary CERTIFICATE OF AUTHENTICATION This note is one of Septemberthe Class 2001B-1 Notes designated therein and described in the within-mentioned Indenture. ZIONS FIRST NATIONAL BANK, 1998as Trustee By ------------------------------------ Authorized Signatory Authentication Date: -------------------------------------- ASSIGNMENT FOR VALUE RECEIVED, the undersigned hereby sells, assigns, and transfers unto __________ (Social Security or other identifying number __________) the within note and all rights thereunder and hereby irrevocably appoints __________ attorney to transfer the within note on the books kept for registration thereof, with full power of substitution in the premises. ▇▇▇▇▇▇▇▇'▇Dated: SIGNED: ---------------------- ------------------------------------ NOTICE: The signature on this Assignment must correspond with the name of the Registered Owner as it appears on the face of the within note in every particular. Signature Guaranteed by: ------------------------------------- A Member of The New York Stock Exchange or a State or National Bank EXHIBIT B SERIES 2001B CLOSING CASH FLOW PROJECTIONS EXHIBIT C NOTICE OF PAYMENT DEFAULT NELNET STUDENT LOAN CORPORATION-2 STUDENT LOAN ASSET-BACKED NOTES CLASS 2001__ AUCTION RATE CERTIFICATE NOTES NOTICE IS HEREBY GIVEN that a Payment Default has occurred and is continuing with respect to the Auction Rate Notes identified above. The next Auction for the Auction Rate Notes will not be held. The Auction Rate for the Auction Rate Notes for the next succeeding Interest Period shall be the Non-Payment Rate. ZIONS FIRST NATIONAL BANK, INCas Trustee Dated: By ------------ ----------------------------------- EXHIBIT D NOTICE OF CURE OF PAYMENT DEFAULT NELNET STUDENT LOAN CORPORATION-2 STUDENT LOAN ASSET-BACKED NOTES CLASS 2001__ AUCTION RATE CERTIFICATE NOTES NOTICE IS HEREBY GIVEN that a Payment Default with respect to the Auction Rate Notes identified above has been waived or cured. By: The next Interest Payment Date is __________________________ and the Auction Date is ______________________________. ZIONS FIRST NATIONAL BANK, as Trustee Dated: By ------------------------- ---------------------------------- EXHIBIT E NOTICE OF PROPOSED CHANGE IN LENGTH OF ONE OR MORE AUCTION PERIODS NELNET STUDENT LOAN CORPORATION-2 STUDENT LOAN ASSET-BACKED NOTES CLASS 2001__ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Chairman and Chief Executive Officer ATTEST: ------------------------- ▇▇▇▇▇▇ ▇▇▇▇▇ President, Secretary and Chief Operating Officer EXHIBIT B [Form AUCTION RATE CERTIFICATE NOTES Notice is hereby given that the Issuer proposes to change the length of Right Certificate] Certificate No. R- __________ Rights NOT EXERCISABLE AFTER OCTOBER 5, 2008 OR EARLIER IF REDEEMED OR EXCHANGED BY THE COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT $0.01 PER RIGHT ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS SUCH TERM IS DEFINED IN THE RIGHTS AGREEMENT (AS HEREINAFTER DEFINED)) AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS REPRESENTED BY THIS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHT CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY BE OR BECOME VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF THE AGREEMENT.]1/ Right Certificate ▇▇▇▇▇▇▇▇'▇, INC. This certifies that , one or registered assigns, is the registered owner of the number of Rights set forth above, each of which entitles the owner thereof, subject more Auction Periods pursuant to the termsIndenture of Trust, provisions and conditions of the Rights Agreement, dated as of September 23, 1998 amended (the "Rights Agreement"), between ▇▇▇▇▇▇▇▇'▇, INC., a Delaware corporation (the "Company"), and AMERICAN STOCK TRANSFER & TRUST COMPANY, a New York corporation (the "Rights Agent"), to purchase from the Company at any time after the Separation Date (as such term is defined in the Rights Agreement) and prior to the close of business (5:00 PM New York time) on October 5, 2008 at the office or offices of the Rights Agent designated for such purpose, or its successors as Rights Agent, one one-hundredth of a fully paid, nonassessable share of Series B Preferred Stock, par value $0.01 per share ("Series B ShareIndenture") of the Company, at a purchase price of Fifteen Dollars ($15) per one one-hundredth of a share (the "Purchase Price"), upon presentation and surrender of this Right Certificate with the Form of Election to Purchase and related Certificate duly executed. The number of rights evidenced by this Right Certificate (and the number of shares that may be purchased upon exercise thereof) set forth above, and the Purchase Price per share set forth above, are the number and Purchase Price as of September 23, 1998 based on the Series B Shares as constituted at such date. Upon the occurrence of a Triggering Event (as such term is defined in the Rights Agreement), if the Rights evidenced by this Right Certificate are beneficially owned by (a) an Acquiring Person or an Affiliate or Associate of any such Acquiring Person (as such terms are defined in the Rights Agreement), (b) a transferee of any such Acquiring Person, Associate or Affiliate (other than a bona fide purchaser for value who has no knowledge that the transferor was an Acquiring Person or an Associate or Affiliate of an Acquiring Person) or (c) under certain circumstances specified in the Rights Agreement, a transferee of a person or entity who, after such transfer, became an Acquiring Person, such Rights shall become null and void and no holder hereof shall have any right with respect to such rights from and after the occurrence of any such Triggering Event. As provided in the Rights Agreement, the Purchase Price and the number and kind of Series B Shares or other securities or other property that may be purchased upon the exercise of the Rights evidenced by this Right Certificate are subject to modification and adjustment upon the happening of certain events. The Board may, at its option, at any time after the right of the Company to redeem the Rights has expired or terminated (with certain exceptions) exchange all or part of the then outstanding and exercisable Rights (other than those held by the Acquiring Person and Affiliates and Associates of the Acquiring Person) for Common Shares (as such term is defined in the Rights Agreement) at an exchange ratio of one Common Share per Right, as adjusted. Immediately upon the action of the Board ordering an exchange of the Rights, the Rights affected by such order will no longer be exercisable and thereafter the only right of the holders of such Rights will be to receive the Common Shares issuable by the Company in exchange for such Rights. This Right Certificate is subject to all of the terms, provisions and conditions of the Rights Agreement, which terms, provisions and conditions are hereby incorporated herein by reference and made a part hereof and to which Rights Agreement reference is hereby made for a full description of the rights, limitations of rights, obligations, duties and immunities hereunder of the Rights Agent, the Company and the holders of the Right Certificates, which limitations of rights include the temporary suspension of the exercisability of such Rights for not more than ninety (90) days at the election of the Company and under certain circumstances specified in such Rights Agreement. Copies of the Rights Agreement are on file at the above- mentioned office of the Rights Agent and are also available upon written request to the Company. This Right Certificate, with or without other Right Certificates, upon surrender at the principal office or offices of the Rights Agent designated for such purpose, may be exchanged for another Right Certificate or Right Certificates of like tenor and date evidencing Rights entitling the holder to purchase a like aggregate number of Series B Shares as the Rights evidenced by the Right Certificate or Right Certificates surrendered shall have entitled such holder to purchase. If the Rights evidenced by this Right Certificate shall be exercised in part, the holder shall be entitled to receive upon surrender hereof another Right Certificate or Right Certificates for the number of whole Rights not exercised. Subject to the provisions of the Rights Agreement, the Rights evidenced by this Certificate may be redeemed at a redemption price of One Cent ($0.01) per Right at any time prior to the earlier of (A) the close of business 10 Business Days (as such term in defined in the Rights Agreement) after the Shares Acquisition Date (as such term is defined in the Rights Agreement) or (B) the Final Expiration Date (as such term is defined in the Rights Agreement), unless the period for redemption is extended as permitted in the Rights Agreement. Thereafter, the Board of Directors of the Company (the "Board") may only redeem the Rights in certain specified circumstances including in connection with certain events not involving an Acquiring Person or an Affiliate or Associate of an Acquiring Person. In addition, the Company's right of redemption may be reinstated if, among other things, an Acquiring Person reduces his beneficial ownership to ten percent (10%) or less of the outstanding Common Shares of the Company in a transaction or series of transactions not involving the Company. Immediately upon the action of the Board ordering redemption of the Rights, the Rights will no longer be exercisable, except where the redemption is made in connection with an event not involving an Acquiring Person or Affiliate or Associate of an Acquiring Person (in which circumstance the effective time of the redemption may be deferred); and, in general, thereafter the only right of the holders of the Rights evidenced hereby will be to receive the Redemption Price. The terms of the Rights evidenced by this Certificate may be supplemented or amended without the approval of any holder of the Rights (or the Common Shares) as set forth in the Rights Agreement. No fractional Series B Shares will be issued upon the exercise of any Right or Rights evidenced hereby (other than fractions that are integral multiples of one one-hundredth of a Series B Share, which may, at the election of the Company, be evidenced by depositary receipts), but in lieu thereof a cash payment will be made as provided in the Rights Agreement. No holder of this Right Certificate, as such, shall be entitled to vote or receive dividends or be deemed for any purpose the holder of Series B Shares or of any other securities of the Company that may at any time be issuable on the exercise hereof, nor shall anything contained in the Rights Agreement or herein be construed to confer upon the holder hereof, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action, or to receive notice of meetings or other actions affecting stockholders (except as provided in the Rights Agreement), or to receive dividends or subscription rights, or otherwise, until the Rights evidenced by this Right Certificate shall have been exercised as provided in the Rights Agreement. This Right Certificate shall not be valid or obligatory for any purpose until it shall have been countersigned by the Rights Agent. WITNESS the facsimile signatures of the proper officers of the Company. Dated: ___________, 19__ ▇▇▇▇▇▇▇▇'▇, INC. By_______________________ Name: Title: Attest___________________ Name: Title: (Corporate Seal) Countersigned AMERICAN STOCK TRANSFER & TRUST COMPANY as Rights Agent By___________________ [Form of Reverse Side of Right Certificate] FORM OF ASSIGNMENT (To be executed by the registered holder if such holder desires to transfer the Right Certificate.) FOR VALUE RECEIVED __________________________________ hereby sells, assigns and transfers unto __________________________ ------------------------------------------------------------ (Please print name and address of Transferee) ____________________________________________________________ this Right Certificate, together with all right, title and interest therein, and does hereby irrevocably constitute and appoint __________________ attorney, to transfer the within Right Certificate on the books of the within-named Company, with full power of substitution. Dated: _______________, 19__ ------------------------- Signature Signature Guaranteedfollows:
Appears in 1 contract
Sources: Supplemental Indenture of Trust (Nelnet Student Loan Corp- 2)
IN TESTIMONY WHEREOF. ▇▇▇▇▇▇▇▇'▇ITHACA INDUSTRIES, INC. has caused this Statement to be signed under its corporate seal by its Chairman and Chief Executive Officer and its Secretary as of the 23rd 13th day of SeptemberJuly, 1998. ▇▇▇▇▇▇▇▇'▇ITHACA INDUSTRIES, INC. By: ________________________________ ▇▇▇Jim D. Waller Chairman, Chief Execut▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Chairman and Chief Executive Officer President ATTEST: ------------------------- ▇▇▇▇▇▇ ▇▇▇▇▇ President, _____________________________ Richard P. Thrush Secretary and Chief Operating Financial and Accounting Officer EXHIBIT B [Form of Right Certificate] Certificate No. R- __________ Rights NOT EXERCISABLE AFTER OCTOBER 5JULY 10, 2008 OR EARLIER IF REDEEMED OR EXCHANGED BY THE COMPANYCOMPANY OR THE FINAL EXPIRATION DATE IS ACCELERATED. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT $0.01 PER RIGHT ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS SUCH TERM IS DEFINED IN THE RIGHTS AGREEMENT (AS HEREINAFTER DEFINED)) AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS REPRESENTED BY THIS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHT CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY BE OR BECOME VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF THE AGREEMENT.]1/ AGREEMENT.] Right Certificate ▇▇▇▇▇▇▇▇'▇ITHACA INDUSTRIES, INC. This certifies that , or registered assigns, is the registered owner of the number of Rights set forth above, each of which entitles the owner thereof, subject to the terms, provisions and conditions of the Rights Agreement, dated July 10, 1998, effective as of September 23July 13, 1998 (the "Rights Agreement"), between ▇▇▇▇▇▇▇▇'▇ITHACA INDUSTRIES, INC., a Delaware corporation (the "Company"), and AMERICAN STOCK TRANSFER & TRUST COMPANY, a New York [ ] corporation (the "Rights Agent"), to purchase from the Company at any time after the Separation Date (as such term is defined in the Rights Agreement) and prior to the close of business (5:00 PM New York eastern time) on October 5July 10, 2008 at the office or offices of the Rights Agent designated for such purpose, or its successors as Rights Agent, one one-hundredth of a fully paid, nonassessable share of Series B A Preferred Stock, par value $0.01 per share ("Series B A Share") of the Company, at a purchase price of Fifteen Thirty Dollars ($1530.00) per one one-hundredth of a share Series A Share (the "Purchase Price"), upon presentation and surrender of this Right Certificate with the Form of Election to Purchase and related Certificate duly executed. The number of rights evidenced by this Right Certificate (and the number of shares that may be purchased upon exercise thereof) set forth above, and the Purchase Price per share set forth above, are the number and Purchase Price as of September July 23, 1998 based on the Series B A Shares as constituted at as of such date. Upon the occurrence of a Triggering Event (as such term is defined in the Rights Agreement), if the Rights evidenced by this Right Certificate are beneficially owned by (a) an Acquiring Person or an Affiliate or Associate of any such Acquiring Person (as such terms are defined in the Rights Agreement), (b) a transferee of any such Acquiring Person, Associate or Affiliate (other than a bona fide purchaser for value who has no knowledge that the transferor was an Acquiring Person or an Associate or Affiliate of an Acquiring Person) or (c) under certain circumstances specified in the Rights Agreement, a transferee of a person or entity who, after such transfer, became an Acquiring Person, such Rights shall become null and void and no holder hereof shall have any right with respect to such rights from and after the occurrence of any such Triggering Event. As provided in the Rights Agreement, the Purchase Price and the number and kind of Series B A Shares or other securities or other property that may be purchased upon the exercise of the Rights evidenced by this Right Certificate are subject to modification and adjustment upon the happening of certain events. The Board may, at its option, at any time after the right of the Company to redeem the Rights has expired or terminated (with certain exceptions) exchange all or part of the then outstanding and exercisable Rights (other than those held by the Acquiring Person and Affiliates and Associates of the Acquiring Person) for Common Shares (as such term is defined in the Rights Agreement) at an exchange ratio of one Common Share per Right, as adjusted. Immediately upon the action of the Board ordering an exchange of the Rights, the Rights affected by such order will no longer be exercisable and thereafter the only right of the holders of such Rights will be to receive the Common Shares issuable by the Company in exchange for such Rights. This Right Certificate is subject to all of the terms, provisions and conditions of the Rights Agreement, which terms, provisions and conditions are hereby incorporated herein by reference and made a part hereof and to which Rights Agreement reference is hereby made for a full description of the rights, limitations of rights, obligations, duties and immunities hereunder of the Rights Agent, the Company and the holders of the Right Certificates, which limitations of rights include the temporary suspension of the exercisability of such Rights for not more than ninety (90) days at the election of the Company and under certain circumstances specified in such Rights Agreement. Copies of the Rights Agreement are on file at the above- above-mentioned office of the Rights Agent and are also available upon written request to the Company. This Right Certificate, with or without other Right Certificates, upon surrender at the principal office or offices of the Rights Agent designated for such purpose, may be exchanged for another Right Certificate or Right Certificates of like tenor and date evidencing Rights entitling the holder to purchase a like aggregate number of Series B A Shares as the Rights evidenced by the Right Certificate or Right Certificates surrendered shall have entitled such holder to purchase. If the Rights evidenced by this Right Certificate shall be exercised in part, the holder shall be entitled to receive upon surrender hereof another Right Certificate or Right Certificates for the number of whole Rights not exercised. Subject to the provisions of the Rights Agreement, the Rights evidenced by this Certificate may be redeemed at a redemption price of One Cent ($0.01) per Right at any time prior to the earlier of (A) the close of business 10 Business Days (as such term in defined in the Rights Agreement) after the Shares Acquisition Date (as such term is defined in the Rights Agreement) or (B) the Final Expiration Date (as such term is defined in the Rights Agreement), unless the period for redemption is extended as permitted in the Rights Agreement. Thereafter, the Board of Directors of the Company (the "Board") may only redeem the Rights in certain specified circumstances including in connection with certain events not involving an Acquiring Person or an Affiliate or Associate of an Acquiring Person. In addition, the Company's right of redemption may be reinstated if, among other things, an Acquiring Person reduces his beneficial ownership to ten [a level below fifteen percent (1015%) )] or less of the outstanding Common Shares of the Company in a transaction or series of transactions not involving the Company. Immediately upon the action of the Board ordering redemption of the Rights, the Rights will no longer be exercisable, except where the redemption is made in connection with an event not involving an Acquiring Person or Affiliate or Associate of an Acquiring Person (in which circumstance the effective time of the redemption may be deferred); and, in general, thereafter the only right of the holders of the Rights evidenced hereby will be to receive the Redemption Price. The terms of the Rights evidenced by this Certificate may be supplemented or amended without the approval of any holder of the Rights (or the Common Shares) as set forth in the Rights Agreement. No fractional Series B A Shares will be issued upon the exercise of any Right or Rights evidenced hereby (other than fractions that are integral multiples of one one-hundredth of a Series B A Share, which may, at the election of the Company, be evidenced by depositary receipts), but in lieu thereof a cash payment will be made as provided in the Rights Agreement. No holder of this Right Certificate, as such, shall be entitled to vote or receive dividends or be deemed for any purpose the holder of Series B A Shares or of any other securities of the Company that may at any time be issuable on the exercise hereof, nor shall anything contained in the Rights Agreement or herein be construed to confer upon the holder hereof, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action, or to receive notice of meetings or other actions affecting stockholders (except as provided in the Rights Agreement), or to receive dividends or subscription rights, or otherwise, until the Rights evidenced by this Right Certificate shall have been exercised as provided in the Rights Agreement. This Right Certificate shall not be valid or obligatory for any purpose until it shall have been countersigned by the Rights Agent. WITNESS the facsimile signatures of the proper officers of the Company. Dated: ___________, 19____ ▇▇▇▇▇▇▇▇'▇ITHACA INDUSTRIES, INC. By_______________________ Name: Title: Attest___________________ Name: Title: (Corporate Seal) Countersigned AMERICAN STOCK TRANSFER & TRUST COMPANY [NAME OF RIGHTS AGENT] as Rights Agent By___________________ [Form of Reverse Side of Right Certificate] FORM OF ASSIGNMENT (To be executed by the registered holder if such holder desires to transfer the Right Certificate.) FOR VALUE RECEIVED __________________________________ hereby sells, assigns and transfers unto __________________________ ------------------------------------------------------------ (Please print name and address of Transferee) ____________________________________________________________ this Right Certificate, together with all right, title and interest therein, and does hereby irrevocably constitute and appoint __________________ attorney, to transfer the within Right Certificate on the books of the within-named Company, with full power of substitution. Dated: _______________, 19____ ------------------------- Signature Signature Guaranteed: Certificate The undersigned hereby certifies by checking the appropriate boxes that:
Appears in 1 contract
IN TESTIMONY WHEREOF. ▇▇▇▇▇▇▇▇'▇, INC. has caused I have hereunto subscribed my name and affixed my official seal this Statement to be signed under its corporate seal by its Chairman and Chief Executive Officer and its Secretary as of the 23rd day of September, 1998_____ at , . ▇▇▇▇▇▇▇▇'▇Notary Public My Commission Expires: (Notarial Seal) STATE OF ) ) SS. COUNTY OF ) Before me, INC. By: a Notary Public in and for said County, personally appeared ________________________________ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Chairman and Chief Executive Officer ATTEST: ------------------------- ▇▇▇▇▇▇ ▇▇▇▇▇ President, Secretary and Chief Operating Officer EXHIBIT B [Form of Right Certificate] Certificate No. R- __________ Rights NOT EXERCISABLE AFTER OCTOBER 5, 2008 OR EARLIER IF REDEEMED OR EXCHANGED BY THE COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT $0.01 PER RIGHT ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS SUCH TERM IS DEFINED IN THE RIGHTS AGREEMENT (AS HEREINAFTER DEFINED)) AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS REPRESENTED BY THIS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHT CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY BE OR BECOME VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF THE AGREEMENT.]1/ Right Certificate ▇▇▇▇▇▇▇▇'▇, INC. This certifies that , or registered assigns, is the registered owner of the number of Rights set forth above, each of which entitles the owner thereof, subject to the terms, provisions and conditions of the Rights Agreement, dated as of September 23, 1998 (the "Rights Agreement"), between ▇▇▇▇▇▇▇▇'▇, INC., a Delaware corporation (the "Company"), and AMERICAN STOCK TRANSFER & TRUST COMPANY, a New York corporation (the "Rights Agent"), to purchase from the Company at any time after the Separation Date (as such term is defined in the Rights Agreement) and prior to the close of business (5:00 PM New York time) on October 5, 2008 at the office or offices of the Rights Agent designated for such purpose, or its successors as Rights Agent, one one-hundredth of a fully paid, nonassessable share of Series B Preferred Stock, par value $0.01 per share ("Series B Share") of the Company, at a purchase price of Fifteen Dollars ($15) per one one-hundredth of a share (the "Purchase Price"), upon presentation and surrender of this Right Certificate with the Form of Election to Purchase and related Certificate duly executed. The number of rights evidenced by this Right Certificate (and the number of shares that may be purchased upon exercise thereof) set forth above, and the Purchase Price per share set forth above, are the number and Purchase Price as of September 23, 1998 based on the Series B Shares as constituted at such date. Upon the occurrence of a Triggering Event (as such term is defined in the Rights Agreement), if the Rights evidenced by this Right Certificate are beneficially owned by (a) an Acquiring Person or an Affiliate or Associate of any such Acquiring Person (as such terms are defined in the Rights Agreement), (b) a transferee of any such Acquiring Person, Associate or Affiliate (other than a bona fide purchaser for value who has no knowledge that the transferor was an Acquiring Person or an Associate or Affiliate of an Acquiring Person) or (c) under certain circumstances specified in the Rights Agreement, a transferee of a person or entity who, after such transfer, became an Acquiring Person, such Rights shall become null and void and no holder hereof shall have any right with respect to such rights from and after the occurrence of any such Triggering Event. As provided in the Rights Agreement, the Purchase Price and the number and kind of Series B Shares or other securities or other property that may be purchased upon the exercise of the Rights evidenced by this Right Certificate are subject to modification and adjustment upon the happening of certain events. The Board may, at its option, at any time after the right of the Company to redeem the Rights has expired or terminated (with certain exceptions) exchange all or part of the then outstanding and exercisable Rights (other than those held by the Acquiring Person and Affiliates and Associates of the Acquiring Person) for Common Shares (as such term is defined in the Rights Agreement) at an exchange ratio of one Common Share per Right, as adjusted. Immediately upon the action of the Board ordering an exchange of the Rights, the Rights affected by such order will no longer be exercisable and thereafter the only right of the holders of such Rights will be to receive the Common Shares issuable by the Company in exchange for such Rights. This Right Certificate is subject to all of the terms, provisions and conditions of the Rights Agreement, which terms, provisions and conditions are hereby incorporated herein by reference and made a part hereof and to which Rights Agreement reference is hereby made for a full description of the rights, limitations of rights, obligations, duties and immunities hereunder of the Rights Agent, the Company and the holders of the Right Certificates, which limitations of rights include the temporary suspension of the exercisability of such Rights for not more than ninety (90) days at the election of the Company and under certain circumstances specified in such Rights Agreement. Copies of the Rights Agreement are on file at the above- mentioned office of the Rights Agent and are also available upon written request to the Company. This Right Certificate, with or without other Right Certificates, upon surrender at the principal office or offices of the Rights Agent designated for such purpose, may be exchanged for another Right Certificate or Right Certificates of like tenor and date evidencing Rights entitling the holder to purchase a like aggregate number of Series B Shares as the Rights evidenced by the Right Certificate or Right Certificates surrendered shall have entitled such holder to purchase. If the Rights evidenced by this Right Certificate shall be exercised in part, the holder shall be entitled to receive upon surrender hereof another Right Certificate or Right Certificates for the number of whole Rights not exercised. Subject to the provisions of the Rights Agreement, the Rights evidenced by this Certificate may be redeemed at a redemption price of One Cent ($0.01) per Right at any time prior to the earlier of (A) the close of business 10 Business Days (as such term in defined in the Rights Agreement) after the Shares Acquisition Date (as such term is defined in the Rights Agreement) or (B) the Final Expiration Date (as such term is defined in the Rights Agreement), unless the period for redemption is extended as permitted in the Rights Agreement. Thereafter, the Board of Directors of the Company (the "Board") may only redeem the Rights in certain specified circumstances including in connection with certain events not involving an Acquiring Person or an Affiliate or Associate of an Acquiring Person. In addition, the Company's right of redemption may be reinstated if, among other things, an Acquiring Person reduces his beneficial ownership to ten percent (10%) or less of the outstanding Common Shares of the Company in a transaction or series of transactions not involving the Company. Immediately upon the action of the Board ordering redemption of the Rights, the Rights will no longer be exercisable, except where the redemption is made in connection with an event not involving an Acquiring Person or Affiliate or Associate of an Acquiring Person (in which circumstance the effective time of the redemption may be deferred); and, in general, thereafter the only right of the holders of the Rights evidenced hereby will be to receive the Redemption Price. The terms of the Rights evidenced by this Certificate may be supplemented or amended without the approval of any holder of the Rights (or the Common Shares) as set forth in the Rights Agreement. No fractional Series B Shares will be issued upon the exercise of any Right or Rights evidenced hereby (other than fractions that are integral multiples of one one-hundredth of a Series B Share, which may, at the election of the Company, be evidenced by depositary receipts), but in lieu thereof a cash payment will be made as provided in the Rights Agreement. No holder of this Right Certificate, as such, shall be entitled to vote or receive dividends or be deemed for any purpose the holder of Series B Shares or of any other securities of the Company that may at any time be issuable on the exercise hereof, nor shall anything contained in the Rights Agreement or herein be construed to confer upon the holder hereof, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action, or to receive notice of meetings or other actions affecting stockholders (except as provided in the Rights Agreement), or to receive dividends or subscription rights, or otherwise, until the Rights evidenced by this Right Certificate shall have been exercised as provided in the Rights Agreement. This Right Certificate shall not be valid or obligatory for any purpose until it shall have been countersigned by the Rights Agent. WITNESS the facsimile signatures of the proper officers of the Company. Dated: ___________, 19__ ▇▇▇▇▇▇▇▇'▇, INC. By_______________________ Name: Title: Attest, by the of such ___________________ Name: Title: , who acknowledged that (Corporate Seal) Countersigned AMERICAN STOCK TRANSFER & TRUST COMPANY as Rights Agent By__s)he did sign the foregoing instrument on behalf of said _________________ [Form and that said instrument is the voluntary act and deed of Reverse Side said ______________ and his/her voluntary act and deed as such officer of Right Certificate] FORM OF ASSIGNMENT (To be executed by the registered holder if such holder desires to transfer the Right Certificate.) FOR VALUE RECEIVED said ______________. IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed my official seal this day of , ______ at , . Notary Public My Commission Expires: (Notarial Seal) 2 To include legal description of the premises To: JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as Agent 2▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, 9th Floor Dallas, Texas 75201 Attention of Region Manager Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇ [Name of Entity], [Type of Entity], (“Grantor”), now does or hereafter may have certain of its merchandise, inventory, or other of its personal property for processing, storage, consignment, engineering, evaluation or repairs, located at _______________ hereby sells(the “Premises”) owned or leased by the undersigned. Grantor has entered into that certain Amended and Restated Security Agreement dated as of March 16, assigns 2011 by and transfers unto __________________________ ------------------------------------------------------------ among Tesoro Corporation (Please print name the “Company”), certain subsidiaries of the Company and address JPMorgan Chase Bank, National Association, as Agent (the “Agent”) (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “Security Agreement”) to secure the obligations of Transfereethe Company under that certain Fifth Amended and Restated Credit Agreement dated as of March 16, 2011 by and among the Company, the lending institutions from time to time parties thereto as Lenders and as LC Issuers (collectively, the “Lenders”) ____________________________________________________________ this Right Certificateand the Agent (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”). Capitalized terms used herein but not defined herein or in the Security Agreement shall have the meanings ascribed thereto in the Credit Agreement. In order to induce the Agent and the Lenders (together with all righttheir respective agents, title successors and interest thereinassigns) to continue such financing arrangements, and does for other good and valuable consideration, the receipt and sufficiency of which are hereby irrevocably constitute acknowledged, the undersigned hereby certifies and appoint __________________ attorney, to transfer the within Right Certificate on the books of the within-named Company, with full power of substitution. Dated: _______________, 19__ ------------------------- Signature Signature Guaranteedagrees that:
Appears in 1 contract
IN TESTIMONY WHEREOF. ▇▇▇▇▇▇▇▇'▇, INC. has caused this Statement to be signed under its corporate I have hereunto set my hand and seal by its Chairman and Chief Executive Officer and its Secretary as of the 23rd this day of September, 1998. ▇▇▇▇▇▇▇▇'▇, INC. By: ________________________________ ▇Notary Public My Commission Expires ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq. ▇▇▇▇▇▇▇ Chairman and Chief Executive Officer ATTEST: ------------------------- & ▇▇▇▇▇▇▇, P.C. 1725 Boulevard of the Allies ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇ Oklahoma Deed SPECIAL WARRANTY DEED FLY WITH EAGLES LLC, a Pennsylvania limited liability company (“GRANTOR”), whose address is 1725 Boulevard of the Allies, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ President, Secretary and Chief Operating Officer EXHIBIT B [Form of Right Certificate] Certificate No. R- __________ Rights NOT EXERCISABLE AFTER OCTOBER 5, 2008 OR EARLIER IF REDEEMED OR EXCHANGED BY THE COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT $0.01 PER RIGHT ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS SUCH TERM IS DEFINED IN THE RIGHTS AGREEMENT (AS HEREINAFTER DEFINED)) AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS REPRESENTED BY THIS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHT CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY BE OR BECOME VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF THE AGREEMENT.]1/ Right Certificate ▇▇▇▇▇▇▇▇'▇, INC. This certifies that in consideration of the sum of TEN DOLLARS AND OTHER VALUABLE CONSIDERATION, or registered to it in hand paid by the said , a (“GRANTEE”), whose tax mailing address is , does by these presents, BARGAIN AND SELL, CONVEY AND CONFIRM, merchantable fee simple title unto GRANTEE, its successors and assigns, is in and to the registered owner following described lots, tracts of parcels of land, lying, being and situated in the County of Ottawa and State of Oklahoma to-wit: As more particularly set forth on Exhibit A, attached hereto and incorporated herein by reference. SUBJECT, HOWEVER TO ALL (i) zoning and building ordinances; (ii) real estate and all ad valorem taxes and assessments both general and special not currently due and payable; (iii) liens and encumbrances caused by Grantee: (iv) matters which would be disclosed by a current, accurate survey and (v) all covenants, conditions, restrictions, easements, reservations, encumbrances and other matters of public record, all of the number of Rights set forth above, each of which entitles the owner thereof, subject foregoing collectively referred to the terms, provisions and conditions of the Rights Agreement, dated herein as of September 23, 1998 (the "Rights Agreement")Permitted Encumbrances." TO HAVE AND TO HOLD, between ▇▇▇▇▇▇▇▇'▇The premises aforesaid, INC.with all and singular the rights, a Delaware corporation (privileges, appurtenances and immunities thereto belonging or in anywise appertaining, unto the "Company")said GRANTEE and unto its successors and assigns forever, and AMERICAN STOCK TRANSFER & TRUST COMPANY, a New York corporation (the "Rights Agent"), to purchase from the Company at any time after the Separation Date (as such term said GRANTOR hereby covenanting that it is defined lawfully seized of an indefeasible estate in fee in the Rights Agreement) and prior premises herein conveyed; that it has good right to convey the close of business (5:00 PM New York time) on October 5, 2008 at the office or offices of the Rights Agent designated for such purpose, or its successors as Rights Agent, one one-hundredth of a fully paid, nonassessable share of Series B Preferred Stock, par value $0.01 per share ("Series B Share") of the Company, at a purchase price of Fifteen Dollars ($15) per one one-hundredth of a share (the "Purchase Price"), upon presentation and surrender of this Right Certificate with the Form of Election to Purchase and related Certificate duly executed. The number of rights evidenced by this Right Certificate (and the number of shares that may be purchased upon exercise thereof) set forth above, and the Purchase Price per share set forth above, are the number and Purchase Price as of September 23, 1998 based on the Series B Shares as constituted at such date. Upon the occurrence of a Triggering Event (as such term is defined in the Rights Agreement), if the Rights evidenced by this Right Certificate are beneficially owned by (a) an Acquiring Person or an Affiliate or Associate of any such Acquiring Person (as such terms are defined in the Rights Agreement), (b) a transferee of any such Acquiring Person, Associate or Affiliate (other than a bona fide purchaser for value who has no knowledge same; that the transferor was an Acquiring Person said premises are free and clear from any encumbrance done or an Associate suffered by it or Affiliate of an Acquiring Person) or (c) those under certain circumstances specified in the Rights Agreement, a transferee of a person or entity who, after such transfer, became an Acquiring Person, such Rights shall become null and void and no holder hereof shall have any right whom it claims; except with respect to such rights from the Permitted Encumbrances; and after that GRANTOR will warrant and defend the occurrence of any such Triggering Event. As provided in the Rights Agreement, the Purchase Price and the number and kind of Series B Shares or other securities or other property that may be purchased upon the exercise title of the Rights evidenced by said premises unto the said GRANTEE and unto its successors and assigns forever, against the lawful claims and demands of all persons whomsoever, lawfully claiming the same by, through or under the Grantor, but against none other. GRANTOR has executed this Right Certificate are subject to modification and adjustment upon the happening of certain events. The Board may, at its option, at any time after the right deed as of the Company to redeem the Rights has expired or terminated (with certain exceptions) exchange all or part date of the then outstanding and exercisable Rights (other than those held by the Acquiring Person and Affiliates and Associates of the Acquiring Person) for Common Shares (as such term is defined in the Rights Agreement) at an exchange ratio of one Common Share per Right, as adjusted. Immediately upon the action of the Board ordering an exchange of the Rights, the Rights affected by such order will no longer be exercisable and thereafter the only right of the holders of such Rights will be to receive the Common Shares issuable by the Company in exchange for such Rights. This Right Certificate is subject to all of the terms, provisions and conditions of the Rights Agreement, which terms, provisions and conditions are hereby incorporated herein by reference and made a part hereof and to which Rights Agreement reference is hereby made for a full description of the rights, limitations of rights, obligations, duties and immunities hereunder of the Rights Agent, the Company and the holders of the Right Certificates, which limitations of rights include the temporary suspension of the exercisability of such Rights for not more than ninety (90) days at the election of the Company and under certain circumstances specified in such Rights Agreement. Copies of the Rights Agreement are on file at the above- mentioned office of the Rights Agent and are also available upon written request to the Company. This Right Certificate, with or without other Right Certificates, upon surrender at the principal office or offices of the Rights Agent designated for such purpose, may be exchanged for another Right Certificate or Right Certificates of like tenor and date evidencing Rights entitling the holder to purchase a like aggregate number of Series B Shares as the Rights evidenced by the Right Certificate or Right Certificates surrendered shall have entitled such holder to purchase. If the Rights evidenced by this Right Certificate shall be exercised in part, the holder shall be entitled to receive upon surrender hereof another Right Certificate or Right Certificates for the number of whole Rights not exercised. Subject to the provisions of the Rights Agreement, the Rights evidenced by this Certificate may be redeemed at a redemption price of One Cent ($0.01) per Right at any time prior to the earlier of (A) the close of business 10 Business Days (as such term in defined in the Rights Agreement) after the Shares Acquisition Date (as such term is defined in the Rights Agreement) or (B) the Final Expiration Date (as such term is defined in the Rights Agreement), unless the period for redemption is extended as permitted in the Rights Agreement. Thereafter, the Board of Directors of the Company (the "Board") may only redeem the Rights in certain specified circumstances including in connection with certain events not involving an Acquiring Person or an Affiliate or Associate of an Acquiring Person. In addition, the Company's right of redemption may be reinstated if, among other things, an Acquiring Person reduces his beneficial ownership to ten percent (10%) or less of the outstanding Common Shares of the Company in a transaction or series of transactions not involving the Company. Immediately upon the action of the Board ordering redemption of the Rights, the Rights will no longer be exercisable, except where the redemption is made in connection with an event not involving an Acquiring Person or Affiliate or Associate of an Acquiring Person (in which circumstance the effective time of the redemption may be deferred); and, in general, thereafter the only right of the holders of the Rights evidenced hereby will be to receive the Redemption Price. The terms of the Rights evidenced by this Certificate may be supplemented or amended without the approval of any holder of the Rights (or the Common Shares) as acknowledgment set forth in the Rights Agreement. No fractional Series B Shares will be issued upon the exercise of any Right or Rights evidenced hereby (other than fractions that are integral multiples of one one-hundredth of a Series B Share, which may, at the election of the Company, be evidenced by depositary receipts), but in lieu thereof a cash payment will be made as provided in the Rights Agreement. No holder of this Right Certificate, as such, shall be entitled to vote or receive dividends or be deemed for any purpose the holder of Series B Shares or of any other securities of the Company that may at any time be issuable on the exercise hereof, nor shall anything contained in the Rights Agreement or herein be construed to confer upon the holder hereof, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action, or to receive notice of meetings or other actions affecting stockholders (except as provided in the Rights Agreement), or to receive dividends or subscription rights, or otherwise, until the Rights evidenced by this Right Certificate shall have been exercised as provided in the Rights Agreement. This Right Certificate shall not be valid or obligatory for any purpose until it shall have been countersigned by the Rights Agent. WITNESS the facsimile signatures of the proper officers of the Company. Dated: ___________, 19__ ▇▇▇▇▇▇▇▇'▇, INCbelow. By_______________________ : Name: Title: Attest___________________ Name: Title: (Corporate Seal) Countersigned AMERICAN STOCK TRANSFER & TRUST COMPANY , as Rights Agent By___________________ [Form of Reverse Side FLY WITH EAGLES LLC, a Pennsylvania limited liability company, who acknowledged that he did execute the foregoing instrument on behalf of Right Certificate] FORM OF ASSIGNMENT (To be executed by said limited liability company and that the registered holder if such holder desires to transfer the Right Certificatesame was his free act and deed.) FOR VALUE RECEIVED __________________________________ hereby sells, assigns and transfers unto __________________________ ------------------------------------------------------------ (Please print name and address of Transferee) ____________________________________________________________ this Right Certificate, together with all right, title and interest therein, and does hereby irrevocably constitute and appoint __________________ attorney, to transfer the within Right Certificate on the books of the within-named Company, with full power of substitution. Dated: _______________, 19__ ------------------------- Signature Signature Guaranteed:
Appears in 1 contract
Sources: Purchase and Sale Agreement
IN TESTIMONY WHEREOF. ▇▇▇▇▇▇▇▇'▇, INC. SABRATEK CORPORATION has caused this Statement to be signed under its corporate seal by its Chairman and Chief Executive Officer and its Secretary as of the 23rd 20th day of SeptemberAugust, 1998. ▇▇▇▇▇▇▇▇'▇, INC. SABRATEK CORPORATION By: _________________________________ K. ▇▇▇▇ ▇▇▇▇▇ Chairman, Chief Executive Officer ATTEST: -------------------------------- ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Vice Chairman and Chief Executive Officer ATTEST: ------------------------- ▇▇▇▇▇▇ ▇▇▇▇▇ President, Secretary and Chief Operating Officer EXHIBIT B [Form of Right Certificate] Certificate No. R- __________ Rights NOT EXERCISABLE AFTER OCTOBER 5AUGUST 20, 2008 OR EARLIER IF REDEEMED OR EXCHANGED BY THE COMPANYCOMPANY OR THE FINAL EXPIRATION DATE IS ACCELERATED. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT $0.01 PER RIGHT ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS SUCH TERM IS DEFINED IN THE RIGHTS AGREEMENT (AS HEREINAFTER DEFINED)) AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS REPRESENTED BY THIS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHT CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY BE OR BECOME VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION 7(e7(E) OF THE AGREEMENT.]1/ AGREEMENT.] Right Certificate ▇▇▇▇▇▇▇▇'▇, INC. SABRATEK CORPORATION This certifies that , or registered assigns, is the registered owner of the number of Rights set forth above, each of which entitles the owner thereof, subject to the terms, provisions and conditions of the Rights Agreement, dated as of September 23August 20, 1998 (the "Rights Agreement"), between ▇▇▇▇▇▇▇▇'▇, INC.SABRATEK CORPORATION, a Delaware corporation (the "Company"), and AMERICAN STOCK TRANSFER & TRUST COMPANYLASALLE NATIONAL BANK, a New York national banking corporation (the "Rights Agent"), to purchase from the Company at any time after the Separation Date (as such term is defined in the Rights Agreement) and prior to the close of business (5:00 PM New York eastern time) on October 5August 20, 2008 at the office or offices of the Rights Agent designated for such purpose, or its successors as Rights Agent, one one-hundredth of a fully paid, nonassessable share of Series B Preferred Stock, par value $0.01 per share ("Series B Share") of the Company, at a purchase price of Fifteen One Hundred Fifty Dollars ($15150) per one one-hundredth of a share Series B Share (the "Purchase Price"), upon presentation and surrender of this Right Certificate with the Form of Election to Purchase and related Certificate duly executed. The number of rights evidenced by this Right Certificate (and the number of shares that may be purchased upon exercise thereof) set forth above, and the Purchase Price per share set forth above, are the number and Purchase Price as of September 23August 20, 1998 based on the Series B Shares as constituted at as of such date. Upon the occurrence of a Triggering Event (as such term is defined in the Rights Agreement), if the Rights evidenced by this Right Certificate are beneficially owned by (a) an Acquiring Person or an Affiliate or Associate of any such Acquiring Person (as such terms are defined in the Rights Agreement), (b) a transferee of any such Acquiring Person, Associate or Affiliate (other than a bona fide purchaser for value who has no knowledge that the transferor was an Acquiring Person or an Associate or Affiliate of an Acquiring Person) or (c) under certain circumstances specified in the Rights Agreement, a transferee of a person or entity who, after such transfer, became an Acquiring Person, such Rights shall become null and void and no holder hereof shall have any right with respect to such rights from and after the occurrence of any such Triggering Event. As provided in the Rights Agreement, the Purchase Price and the number and kind of Series B Shares or other securities or other property that may be purchased upon the exercise of the Rights evidenced by this Right Certificate are subject to modification and adjustment upon the happening of certain events. The Board may, at its option, at any time after the right of the Company to redeem the Rights has expired or terminated (with certain exceptions) exchange all or part of the then outstanding and exercisable Rights (other than those held by the Acquiring Person and Affiliates and Associates of the Acquiring Person) for Common Shares (as such term is defined in the Rights Agreement) at an exchange ratio of one Common Share per Right, as adjusted. Immediately upon the action of the Board ordering an exchange of the Rights, the Rights affected by such order will no longer be exercisable and thereafter the only right of the holders of such Rights will be to receive the Common Shares issuable by the Company in exchange for such Rights. This Right Certificate is subject to all of the terms, provisions and conditions of the Rights Agreement, which terms, provisions and conditions are hereby incorporated herein by reference and made a part hereof and to which Rights Agreement reference is hereby made for a full description of the rights, limitations of rights, obligations, duties and immunities hereunder of the Rights Agent, the Company and the holders of the Right Certificates, which limitations of rights include the temporary suspension of the exercisability of such Rights for not more than ninety (90) days at the election of the Company and under certain circumstances specified in such Rights Agreement. Copies of the Rights Agreement are on file at the above- above-mentioned office of the Rights Agent and are also available upon written request to the Company. This Right Certificate, with or without other Right Certificates, upon surrender at the principal office or offices of the Rights Agent designated for such purpose, may be exchanged for another Right Certificate or Right Certificates of like tenor and date evidencing Rights entitling the holder to purchase a like aggregate number of Series B Shares as the Rights evidenced by the Right Certificate or Right Certificates surrendered shall have entitled such holder to purchase. If the Rights evidenced by this Right Certificate shall be exercised in part, the holder shall be entitled to receive upon surrender hereof another Right Certificate or Right Certificates for the number of whole Rights not exercised. Subject to the provisions of the Rights Agreement, the Rights evidenced by this Certificate may be redeemed at a redemption price of One Cent ($0.01) per Right at any time prior to the earlier of (A) the close of business 10 Business Days (as such term in defined in the Rights Agreement) after the Shares Acquisition Date (as such term is defined in the Rights Agreement) or (B) the Final Expiration Date (as such term is defined in the Rights Agreement), unless the period for redemption is extended as permitted in the Rights Agreement. Thereafter, the Board of Directors of the Company (the "Board") may only redeem the Rights in certain specified circumstances including in connection with certain events not involving an Acquiring Person or an Affiliate or Associate of an Acquiring Person. In addition, the Company's right of redemption may be reinstated if, among other things, an Acquiring Person reduces his beneficial ownership to ten a level below fifteen percent (1015%) or less of the outstanding Common Shares of the Company in a transaction or series of transactions not involving the Company. Immediately upon the action of the Board ordering redemption of the Rights, the Rights will no longer be exercisable, except where the redemption is made in connection with an event not involving an Acquiring Person or Affiliate or Associate of an Acquiring Person (in which circumstance the effective time of the redemption may be deferred); and, in general, thereafter the only right of the holders of the Rights evidenced hereby will be to receive the Redemption Price. The terms of the Rights evidenced by this Certificate may be supplemented or amended without the approval of any holder of the Rights (or the Common Shares) as set forth in the Rights Agreement. No fractional Series B Shares will be issued upon the exercise of any Right or Rights evidenced hereby (other than fractions that are integral multiples of one one-hundredth of a Series B Share, which may, at the election of the Company, be evidenced by depositary receipts), but in lieu thereof a cash payment will be made as provided in the Rights Agreement. No holder of this Right Certificate, as such, shall be entitled to vote or receive dividends or be deemed for any purpose the holder of Series B Shares or of any other securities of the Company that may at any time be issuable on the exercise hereof, nor shall anything contained in the Rights Agreement or herein be construed to confer upon the holder hereof, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action, or to receive notice of meetings or other actions affecting stockholders (except as provided in the Rights Agreement), or to receive dividends or subscription rights, or otherwise, until the Rights evidenced by this Right Certificate shall have been exercised as provided in the Rights Agreement. This Right Certificate shall not be valid or obligatory for any purpose until it shall have been countersigned by the Rights Agent. WITNESS the facsimile signatures of the proper officers of the Company. Dated: ___________, 19____ ▇▇▇▇▇▇▇▇'▇, INC. SABRATEK CORPORATION By_______________________ Name: Title: Attest___________________ Name: Title: (Corporate Seal) Countersigned AMERICAN STOCK TRANSFER & TRUST COMPANY LASALLE NATIONAL BANK as Rights Agent By_________________________ Name: Title: [Form of Reverse Side of Right Certificate] FORM OF ASSIGNMENT (To be executed by the registered holder if such holder desires to transfer the Right Certificate.) FOR VALUE RECEIVED __________________________________ hereby sells, assigns and transfers unto ____________________________________ ------------------------------------------------------------ ------------------------------------------------------------------------------- (Please print name and address of Transferee) ____________________________________________________________ this Right Certificate, together with all right, title and interest therein, and does hereby irrevocably constitute and appoint __________________ attorney, to transfer the within Right Certificate on the books of the within-named Company, with full power of substitution. Dated: _______________, 19____ ------------------------- ------------------------------ Signature Signature Guaranteed: Certificate The undersigned hereby certifies by checking the appropriate boxes that:
Appears in 1 contract
Sources: Rights Agreement (Sabratek Corp)
IN TESTIMONY WHEREOF. ▇▇▇▇▇▇▇▇'▇, INC. has the parties have caused this Statement lease, consisting of 13 pages (including this signature page), and 6 exhibits attached hereto, to be signed under by their respective representatives designated below, or if either party is a corporation, it has caused these presents to be signed by its president or other officer designated below, attested by its secretary, and its corporate seal by its Chairman and Chief Executive Officer and its Secretary as of the 23rd day of September, 1998to be affixed. ▇▇▇▇▇▇▇▇'▇, INC. ByBY: ________________________________ ▇▇▇/s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Chairman and Chief Executive Officer ATTESTPRINT: ------------------------- ▇▇▇ ▇▇▇▇▇▇▇ ITS: Managing Member DATE: 12/18/13 BY: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ PresidentPRINT: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ITS: CEO DATE: 12/17/13 CONSULT YOUR ATTORNEY – THIS LEASE SHOULD BE GIVEN TO YOUR ATTORNEY FOR REVIEW AND APPROVAL BEFORE YOU SIGN IT. BECAUSE EACH LEASE TRANSACTION IS UNIQUE, Secretary and Chief Operating Officer EXHIBIT B [Form of Right Certificate] Certificate No. R- __________ Rights NOT EXERCISABLE AFTER OCTOBER 5, 2008 OR EARLIER IF REDEEMED OR EXCHANGED BY THE COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT $0.01 PER RIGHT ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS SUCH TERM IS DEFINED IN THE RIGHTS AGREEMENT (AS HEREINAFTER DEFINED)) AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS REPRESENTED BY THIS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHT CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY BE BUSINESS AND LEGAL CONCERNS OF EACH PART ARE UNIQUE, LANDLORD CAN NOR DOES NOT MAKE ANY REPRESENATION OR BECOME VOID IN RECOMMENDATION CONCERNING THE CIRCUMSTANCES SPECIFIED IN SECTION 7(e) LEGAL EFFECT, LEGAL SUFFICIENCY OR TAX CONSEQUENCES (OF THE AGREEMENT.]1/ Right Certificate THIS LEASE. THESE ARE QUESTIONS FOR YOUR ATTORNEY AND FINANCIAL ADVISORS. Landlord: R.W.B.C., L.L.C. Tenant: GLOBAL GROUND SUPPORT, LLC Premises: ▇▇▇ ▇. ▇▇ ▇▇▇▇▇▇▇▇'▇, INC. This certifies that , or registered assigns, is the registered owner of the number of Rights set forth above, each of which entitles the owner thereof, subject to the terms, provisions and conditions of the Rights Agreement, dated as of September 23, 1998 (the "Rights Agreement"), between ▇▇▇▇▇▇▇▇'▇, INC., a Delaware corporation (the "Company"), and AMERICAN STOCK TRANSFER & TRUST COMPANY, a New York corporation (the "Rights Agent"), to purchase from the Company at any time after the Separation Date (as such term is defined in the Rights Agreement) and prior to the close of business (5:00 PM New York time) on October 5, 2008 at the office or offices of the Rights Agent designated for such purpose, or its successors as Rights Agent, one one-hundredth of a fully paid, nonassessable share of Series B Preferred Stock, par value $0.01 per share ("Series B Share") of the Company, at a purchase price of Fifteen Dollars ($15) per one one-hundredth of a share (the "Purchase Price"), upon presentation and surrender of this Right Certificate with the Form of Election to Purchase and related Certificate duly executed. The number of rights evidenced by this Right Certificate (and the number of shares that may be purchased upon exercise thereof) set forth above, and the Purchase Price per share set forth above, are the number and Purchase Price as of September 23, 1998 based on the Series B Shares as constituted at such date. Upon the occurrence of a Triggering Event (as such term is defined in the Rights Agreement), if the Rights evidenced by this Right Certificate are beneficially owned by (a) an Acquiring Person or an Affiliate or Associate of any such Acquiring Person (as such terms are defined in the Rights Agreement), (b) a transferee of any such Acquiring Person, Associate or Affiliate (other than a bona fide purchaser for value who has no knowledge that the transferor was an Acquiring Person or an Associate or Affiliate of an Acquiring Person) or (c) under certain circumstances specified in the Rights Agreement, a transferee of a person or entity who, after such transfer, became an Acquiring Person, such Rights shall become null and void and no holder hereof shall have any right with respect to such rights from and after the occurrence of any such Triggering Event. As provided in the Rights Agreement, the Purchase Price and the number and kind of Series B Shares or other securities or other property that may be purchased upon the exercise of the Rights evidenced by this Right Certificate are subject to modification and adjustment upon the happening of certain events. The Board may, at its option, at any time after the right of the Company to redeem the Rights has expired or terminated (with certain exceptions) exchange all or part of the then outstanding and exercisable Rights (other than those held by the Acquiring Person and Affiliates and Associates of the Acquiring Person) for Common Shares (as such term is defined in the Rights Agreement) at an exchange ratio of one Common Share per Right, as adjusted. Immediately upon the action of the Board ordering an exchange of the Rights, the Rights affected by such order will no longer be exercisable and thereafter the only right of the holders of such Rights will be to receive the Common Shares issuable by the Company in exchange for such Rights. This Right Certificate is subject to all of the terms, provisions and conditions of the Rights Agreement, which terms, provisions and conditions are hereby incorporated herein by reference and made a part hereof and to which Rights Agreement reference is hereby made for a full description of the rights, limitations of rights, obligations, duties and immunities hereunder of the Rights Agent, the Company and the holders of the Right Certificates, which limitations of rights include the temporary suspension of the exercisability of such Rights for not more than ninety (90) days at the election of the Company and under certain circumstances specified in such Rights Agreement. Copies of the Rights Agreement are on file at the above- mentioned office of the Rights Agent and are also available upon written request to the Company. This Right Certificate, with or without other Right Certificates, upon surrender at the principal office or offices of the Rights Agent designated for such purpose, may be exchanged for another Right Certificate or Right Certificates of like tenor and date evidencing Rights entitling the holder to purchase a like aggregate number of Series B Shares as the Rights evidenced by the Right Certificate or Right Certificates surrendered shall have entitled such holder to purchase. If the Rights evidenced by this Right Certificate shall be exercised in part, the holder shall be entitled to receive upon surrender hereof another Right Certificate or Right Certificates for the number of whole Rights not exercised. Subject to the provisions of the Rights Agreement, the Rights evidenced by this Certificate may be redeemed at a redemption price of One Cent ($0.01) per Right at any time prior to the earlier of (A) the close of business 10 Business Days (as such term in defined in the Rights Agreement) after the Shares Acquisition Date (as such term is defined in the Rights Agreement) or (B) the Final Expiration Date (as such term is defined in the Rights Agreement), unless the period for redemption is extended as permitted in the Rights Agreement. Thereafter, the Board of Directors of the Company (the "Board") may only redeem the Rights in certain specified circumstances including in connection with certain events not involving an Acquiring Person or an Affiliate or Associate of an Acquiring Person. In addition, the Company's right of redemption may be reinstated if, among other things, an Acquiring Person reduces his beneficial ownership to ten percent (10%) or less of the outstanding Common Shares of the Company in a transaction or series of transactions not involving the Company. Immediately upon the action of the Board ordering redemption of the Rights, the Rights will no longer be exercisable, except where the redemption is made in connection with an event not involving an Acquiring Person or Affiliate or Associate of an Acquiring Person (in which circumstance the effective time of the redemption may be deferred); and, in general, thereafter the only right of the holders of the Rights evidenced hereby will be to receive the Redemption Price. The terms of the Rights evidenced by this Certificate may be supplemented or amended without the approval of any holder of the Rights (or the Common Shares) as set forth in the Rights Agreement. No fractional Series B Shares will be issued upon the exercise of any Right or Rights evidenced hereby (other than fractions that are integral multiples of one one-hundredth of a Series B Share, which may, at the election of the Company, be evidenced by depositary receipts), but in lieu thereof a cash payment will be made as provided in the Rights Agreement. No holder of this Right Certificate, as such, shall be entitled to vote or receive dividends or be deemed for any purpose the holder of Series B Shares or of any other securities of the Company that may at any time be issuable on the exercise hereof, nor shall anything contained in the Rights Agreement or herein be construed to confer upon the holder hereof, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action, or to receive notice of meetings or other actions affecting stockholders (except as provided in the Rights Agreement), or to receive dividends or subscription rights, or otherwise, until the Rights evidenced by this Right Certificate shall have been exercised as provided in the Rights Agreement. This Right Certificate shall not be valid or obligatory for any purpose until it shall have been countersigned by the Rights Agent. WITNESS the facsimile signatures of the proper officers of the Company. Dated: ___________, 19__ ▇▇▇▇▇▇ ▇▇▇'▇▇ Date: 12/17/13 Tenant hereby accepts space in “as is” condition except as follows: Landlord will replace front office carpeting with sample provided Landlord will increase front office lighting Landlord will re-tile kitchen and restrooms Landlord will replace warehouse lighting with T5H0 fluorescent lighting as per specifications mutually agreed upon by Tenant and Landlord Landlord will repair and seal the entire roof with a five (5) year no leak warranty Tenant will re-pave parking areas (east and west lots) and access road up to the property line as per specifications mutually agreed upon by Tenant and Landlord All items listed above shall be completed by Landlord or Tenant as stated prior to September 1, INC2014. By_______________________ Name: Title: Attest___________________ Name: Title: (Corporate Seal) Countersigned AMERICAN STOCK TRANSFER & TRUST COMPANY as Rights Agent By___________________ [Form of Reverse Side of Right Certificate] FORM OF ASSIGNMENT (To All costs shall be executed paid by the registered holder if such holder desires to transfer party providing the Right Certificateimprovement.) FOR VALUE RECEIVED __________________________________ hereby sells, assigns and transfers unto __________________________ ------------------------------------------------------------ (Please print name and address of Transferee) ____________________________________________________________ this Right Certificate, together with all right, title and interest therein, and does hereby irrevocably constitute and appoint __________________ attorney, to transfer the within Right Certificate on the books of the within-named Company, with full power of substitution. Dated: _______________, 19__ ------------------------- Signature Signature Guaranteed:
Appears in 1 contract
Sources: Lease Agreement (Air T Inc)
IN TESTIMONY WHEREOF. I have hereunto set my hand and affixed my official seal, at my office in ______, __ that day and year first above written. My commission as Notary Public will expire on: -------------------------- Notary Public 126 EXHIBIT A TO FORM OF LIMITED WARRANTY DEED THE PREMISES [See attached copy.] 127 EXHIBIT C FORM OF BILL ▇▇ SALE FOR DEVELOPMENT ASSETS BILL ▇▇▇▇▇▇▇'▇▇ SALE, INC. has caused this Statement ASSIGNMENT AND ASSUMPTION AGREEMENT Reference is made to be signed under its corporate seal by its Chairman and Chief Executive Officer and its Secretary the Exchange Option Agreement (the "Option Agreement") dated as of the 23rd day of SeptemberJuly 9, 1998. ▇▇▇▇▇▇▇▇'▇, INC. By: 2000 between ________________________________ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Chairman and Chief Executive Officer ATTEST: ------------------------- ▇▇▇▇▇▇ ▇▇▇▇▇ President, Secretary and Chief Operating Officer EXHIBIT B [Form of Right Certificate] Certificate No. R- __________ Rights NOT EXERCISABLE AFTER OCTOBER 5, 2008 OR EARLIER IF REDEEMED OR EXCHANGED BY THE COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT $0.01 PER RIGHT ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS SUCH TERM IS DEFINED IN THE RIGHTS AGREEMENT (AS HEREINAFTER DEFINED)) AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS REPRESENTED BY THIS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHT CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY BE OR BECOME VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF THE AGREEMENT.]1/ Right Certificate ▇▇▇▇▇▇▇▇'▇, INC. This certifies that , or registered assigns, is the registered owner of the number of Rights set forth above, each of which entitles the owner thereof, subject to the terms, provisions and conditions of the Rights Agreement, dated as of September 23, 1998 (the "Rights AgreementDeveloper"), between ▇▇▇▇▇▇▇▇'▇, INC., a Delaware corporation ) and HPT Suite Properties Trust (the "CompanyInvestor"), . Capitalized terms used and AMERICAN STOCK TRANSFER & TRUST COMPANY, a New York corporation (not otherwise defined herein shall have the "Rights Agent"), meanings ascribed to purchase from the Company at any time after the Separation Date (as such term is defined terms in the Rights Option Agreement) and prior to the close of business (5:00 PM New York time) on October 5, 2008 at the office or offices . FOR AND IN CONSIDERATION of the Rights Agent designated for such purposemutual covenants herein contained and other good and valuable consideration, or its successors as Rights Agentthe mutual receipt and legal sufficiency of which are hereby acknowledged, one one-hundredth of a fully paidthe Developer, nonassessable share of Series B Preferred Stock, par value $0.01 per share ("Series B Share") in connection with the Developer's conveyance on this date of the CompanyDevelopment Assets does do hereby grant, at a purchase price of Fifteen Dollars ($15) per one one-hundredth of a share (the "Purchase Price")bargain, upon presentation and surrender of this Right Certificate with the Form of Election to Purchase and related Certificate duly executed. The number of rights evidenced by this Right Certificate (and the number of shares that may be purchased upon exercise thereof) set forth abovesell, and the Purchase Price per share set forth aboveassign, are the number and Purchase Price as of September 23, 1998 based on the Series B Shares as constituted at such date. Upon the occurrence of a Triggering Event (as such term is defined in the Rights Agreement), if the Rights evidenced by this Right Certificate are beneficially owned by (a) an Acquiring Person or an Affiliate or Associate of any such Acquiring Person (as such terms are defined in the Rights Agreement), (b) a transferee of any such Acquiring Person, Associate or Affiliate (other than a bona fide purchaser for value who has no knowledge that the transferor was an Acquiring Person or an Associate or Affiliate of an Acquiring Person) or (c) under certain circumstances specified in the Rights Agreement, a transferee of a person or entity who, after such transfer, became an Acquiring Persondeliver and convey unto Investor, such Rights shall become null and void and no holder hereof shall have any right with respect to such rights from and after the occurrence of any such Triggering Event. As provided in the Rights Agreement, the Purchase Price and the number and kind of Series B Shares or other securities or other property that may be purchased upon the exercise of the Rights evidenced by this Right Certificate are subject to modification and adjustment upon the happening of certain events. The Board may, at its option, at any time after the right of the Company to redeem the Rights has expired or terminated (with certain exceptions) exchange all or part of the then outstanding and exercisable Rights (other than those held by the Acquiring Person and Affiliates and Associates of the Acquiring Person) for Common Shares (as such term is defined in the Rights Agreement) at an exchange ratio of one Common Share per Right, as adjusted. Immediately upon the action of the Board ordering an exchange of the Rights, the Rights affected by such order will no longer be exercisable and thereafter the only right of the holders of such Rights will be to receive the Common Shares issuable by the Company in exchange for such Rights. This Right Certificate is subject to all of the terms, provisions and conditions of the Rights Agreement, which terms, provisions and conditions are hereby incorporated herein by reference and made a part hereof and to which Rights Agreement reference is hereby made for a full description of the rights, limitations of rights, obligations, duties and immunities hereunder of the Rights Agent, the Company and the holders of the Right Certificates, which limitations of rights include the temporary suspension of the exercisability of such Rights for not more than ninety (90) days at the election of the Company and under certain circumstances specified in such Rights Agreement. Copies of the Rights Agreement are on file at the above- mentioned office of the Rights Agent and are also available upon written request to the Company. This Right Certificate, with or without other Right Certificates, upon surrender at the principal office or offices of the Rights Agent designated for such purpose, may be exchanged for another Right Certificate or Right Certificates of like tenor and date evidencing Rights entitling the holder to purchase a like aggregate number of Series B Shares as the Rights evidenced by the Right Certificate or Right Certificates surrendered shall have entitled such holder to purchase. If the Rights evidenced by this Right Certificate shall be exercised in part, the holder shall be entitled to receive upon surrender hereof another Right Certificate or Right Certificates for the number of whole Rights not exercised. Subject to the provisions of the Rights Agreement, the Rights evidenced by this Certificate may be redeemed at a redemption price of One Cent ($0.01) per Right at any time prior to the earlier of (A) the close of business 10 Business Days (as such term in defined in the Rights Agreement) after the Shares Acquisition Date (as such term is defined in the Rights Agreement) or (B) the Final Expiration Date (as such term is defined in the Rights Agreement), unless the period for redemption is extended as permitted in the Rights Agreement. Thereafter, the Board of Directors of the Company (the "Board") may only redeem the Rights in certain specified circumstances including in connection with certain events not involving an Acquiring Person or an Affiliate or Associate of an Acquiring Person. In addition, the CompanyDeveloper's right of redemption may be reinstated if, among other things, an Acquiring Person reduces his beneficial ownership to ten percent (10%) or less of the outstanding Common Shares of the Company in a transaction or series of transactions not involving the Company. Immediately upon the action of the Board ordering redemption of the Rights, the Rights will no longer be exercisable, except where the redemption is made in connection with an event not involving an Acquiring Person or Affiliate or Associate of an Acquiring Person (in which circumstance the effective time of the redemption may be deferred); and, in general, thereafter the only right of the holders of the Rights evidenced hereby will be to receive the Redemption Price. The terms of the Rights evidenced by this Certificate may be supplemented or amended without the approval of any holder of the Rights (or the Common Shares) as set forth in the Rights Agreement. No fractional Series B Shares will be issued upon the exercise of any Right or Rights evidenced hereby (other than fractions that are integral multiples of one one-hundredth of a Series B Share, which may, at the election of the Company, be evidenced by depositary receipts), but in lieu thereof a cash payment will be made as provided in the Rights Agreement. No holder of this Right Certificate, as such, shall be entitled to vote or receive dividends or be deemed for any purpose the holder of Series B Shares or of any other securities of the Company that may at any time be issuable on the exercise hereof, nor shall anything contained in the Rights Agreement or herein be construed to confer upon the holder hereof, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action, or to receive notice of meetings or other actions affecting stockholders (except as provided in the Rights Agreement), or to receive dividends or subscription rights, or otherwise, until the Rights evidenced by this Right Certificate shall have been exercised as provided in the Rights Agreement. This Right Certificate shall not be valid or obligatory for any purpose until it shall have been countersigned by the Rights Agent. WITNESS the facsimile signatures of the proper officers of the Company. Dated: ___________, 19__ ▇▇▇▇▇▇▇▇'▇, INC. By_______________________ Name: Title: Attest___________________ Name: Title: (Corporate Seal) Countersigned AMERICAN STOCK TRANSFER & TRUST COMPANY as Rights Agent By___________________ [Form of Reverse Side of Right Certificate] FORM OF ASSIGNMENT (To be executed by the registered holder if such holder desires to transfer the Right Certificate.) FOR VALUE RECEIVED __________________________________ hereby sells, assigns and transfers unto __________________________ ------------------------------------------------------------ (Please print name and address of Transferee) ____________________________________________________________ this Right Certificate, together with all right, title and interest thereinin and to the following described personal property relating to the Development Property (collectively, the "Personal Property"): (a) the FF&E; (b) the Contracts; (c) the Documents; (d) the Improvements; (e) the Intangible Property; and does hereby irrevocably constitute and appoint __________________ attorney, (f) the Tenant Leases owned by the Investor in connection with or relating to transfer the within Right Certificate on Hotel at the books Development Property. TO HAVE AND TO HOLD all of the within-named CompanyPersonal Property unto the Investor, with full power of substitution. Dated: _______________its successors and assigns, 19__ ------------------------- Signature Signature Guaranteed:forever.
Appears in 1 contract
IN TESTIMONY WHEREOF. ▇▇▇▇▇▇▇▇'▇, INC. OrthoLogic Corp. has caused this Statement Certificate of Designation to be signed under its corporate seal executed and acknowledged by its Chairman of the Board and Chief Executive Officer Officer, and attested by its Secretary Executive Vice President, Research and Development, as of the 23rd 5th day of SeptemberMarch, 19981997. ▇▇▇▇▇▇▇▇'▇, INCORTHOLOGIC CORP. By: ________________________________ ▇▇/s/ A▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ----------------------------- Name: A▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Title: Chairman and Chief Executive Officer ATTEST: ------------------------- /s/ F▇▇▇▇ ▇. ▇▇▇▇▇ ------------------------------ Name: F▇▇▇▇ ▇. ▇▇▇▇▇ President, Secretary Title: Executive Vice President Research and Chief Operating Officer Development EXHIBIT B [Form of Right Certificate] Certificate No. R- ____________ Rights NOT EXERCISABLE AFTER OCTOBER 5MARCH 11, 2008 2007 OR EARLIER IF REDEEMED OR EXCHANGED BY THE COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT $0.01 PER RIGHT ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS SUCH TERM IS DEFINED IN THE RIGHTS AGREEMENT (AS HEREINAFTER DEFINED)) AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS REPRESENTED BY THIS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHT CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY BE OR BECOME VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF THE AGREEMENT.]1/ Right Certificate ▇▇▇▇▇▇▇▇'▇, INC. This certifies that , or registered assigns, is the registered owner of the number of Rights set forth above, each of which entitles the owner thereof, subject to the terms, provisions and conditions of the Rights Agreement, dated as of September 23, 1998 (the "Rights Agreement"), between ▇▇▇▇▇▇▇▇'▇, INC., a Delaware corporation (the "Company"), and AMERICAN STOCK TRANSFER & TRUST COMPANY, a New York corporation (the "Rights Agent"), to purchase from the Company at any time after the Separation Date (as such term is defined in the Rights Agreement) and prior to the close of business (5:00 PM New York time) on October 5, 2008 at the office or offices of the Rights Agent designated for such purpose, or its successors as Rights Agent, one one-hundredth of a fully paid, nonassessable share of Series B Preferred Stock, par value $0.01 per share ("Series B Share") of the Company, at a purchase price of Fifteen Dollars ($15) per one one-hundredth of a share (the "Purchase Price"), upon presentation and surrender of this Right Certificate with the Form of Election to Purchase and related Certificate duly executed. The number of rights evidenced by this Right Certificate (and the number of shares that may be purchased upon exercise thereof) set forth above, and the Purchase Price per share set forth above, are the number and Purchase Price as of September 23, 1998 based on the Series B Shares as constituted at such date. Upon the occurrence of a Triggering Event (as such term is defined in the Rights Agreement), if the Rights evidenced by this Right Certificate are beneficially owned by (a) an Acquiring Person or an Affiliate or Associate of any such Acquiring Person (as such terms are defined in the Rights Agreement), (b) a transferee of any such Acquiring Person, Associate or Affiliate (other than a bona fide purchaser for value who has no knowledge that the transferor was an Acquiring Person or an Associate or Affiliate of an Acquiring Person) or (c) under certain circumstances specified in the Rights Agreement, a transferee of a person or entity who, after such transfer, became an Acquiring Person, such Rights shall become null and void and no holder hereof shall have any right with respect to such rights from and after the occurrence of any such Triggering Event. As provided in the Rights Agreement, the Purchase Price and the number and kind of Series B Shares or other securities or other property that may be purchased upon the exercise of the Rights evidenced by this Right Certificate are subject to modification and adjustment upon the happening of certain events. The Board may, at its option, at any time after the right of the Company to redeem the Rights has expired or terminated (with certain exceptions) exchange all or part of the then outstanding and exercisable Rights (other than those held by the Acquiring Person and Affiliates and Associates of the Acquiring Person) for Common Shares (as such term is defined in the Rights Agreement) at an exchange ratio of one Common Share per Right, as adjusted. Immediately upon the action of the Board ordering an exchange of the Rights, the Rights affected by such order will no longer be exercisable and thereafter the only right of the holders of such Rights will be to receive the Common Shares issuable by the Company in exchange for such Rights. This Right Certificate is subject to all of the terms, provisions and conditions of the Rights Agreement, which terms, provisions and conditions are hereby incorporated herein by reference and made a part hereof and to which Rights Agreement reference is hereby made for a full description of the rights, limitations of rights, obligations, duties and immunities hereunder of the Rights Agent, the Company and the holders of the Right Certificates, which limitations of rights include the temporary suspension of the exercisability of such Rights for not more than ninety (90) days at the election of the Company and under certain circumstances specified in such Rights Agreement. Copies of the Rights Agreement are on file at the above- mentioned office of the Rights Agent and are also available upon written request to the Company. This Right Certificate, with or without other Right Certificates, upon surrender at the principal office or offices of the Rights Agent designated for such purpose, may be exchanged for another Right Certificate or Right Certificates of like tenor and date evidencing Rights entitling the holder to purchase a like aggregate number of Series B Shares as the Rights evidenced by the Right Certificate or Right Certificates surrendered shall have entitled such holder to purchase. If the Rights evidenced by this Right Certificate shall be exercised in part, the holder shall be entitled to receive upon surrender hereof another Right Certificate or Right Certificates for the number of whole Rights not exercised. Subject to the provisions of the Rights Agreement, the Rights evidenced by this Certificate may be redeemed at a redemption price of One Cent ($0.01) per Right at any time prior to the earlier of (A) the close of business 10 Business Days (as such term in defined in the Rights Agreement) after the Shares Acquisition Date (as such term is defined in the Rights Agreement) or (B) the Final Expiration Date (as such term is defined in the Rights Agreement), unless the period for redemption is extended as permitted in the Rights Agreement. Thereafter, the Board of Directors of the Company (the "Board") may only redeem the Rights in certain specified circumstances including in connection with certain events not involving an Acquiring Person or an Affiliate or Associate of an Acquiring Person. In addition, the Company's right of redemption may be reinstated if, among other things, an Acquiring Person reduces his beneficial ownership to ten percent (10%) or less of the outstanding Common Shares of the Company in a transaction or series of transactions not involving the Company. Immediately upon the action of the Board ordering redemption of the Rights, the Rights will no longer be exercisable, except where the redemption is made in connection with an event not involving an Acquiring Person or Affiliate or Associate of an Acquiring Person (in which circumstance the effective time of the redemption may be deferred); and, in general, thereafter the only right of the holders of the Rights evidenced hereby will be to receive the Redemption Price. The terms of the Rights evidenced by this Certificate may be supplemented or amended without the approval of any holder of the Rights (or the Common Shares) as set forth in the Rights Agreement. No fractional Series B Shares will be issued upon the exercise of any Right or Rights evidenced hereby (other than fractions that are integral multiples of one one-hundredth of a Series B Share, which may, at the election of the Company, be evidenced by depositary receipts), but in lieu thereof a cash payment will be made as provided in the Rights Agreement. No holder of this Right Certificate, as such, shall be entitled to vote or receive dividends or be deemed for any purpose the holder of Series B Shares or of any other securities of the Company that may at any time be issuable on the exercise hereof, nor shall anything contained in the Rights Agreement or herein be construed to confer upon the holder hereof, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action, or to receive notice of meetings or other actions affecting stockholders (except as provided in the Rights Agreement), or to receive dividends or subscription rights, or otherwise, until the Rights evidenced by this Right Certificate shall have been exercised as provided in the Rights Agreement. This Right Certificate shall not be valid or obligatory for any purpose until it shall have been countersigned by the Rights Agent. WITNESS the facsimile signatures of the proper officers of the Company. Dated: ___________, 19__ ▇▇▇▇▇▇▇▇'▇, INC. By_______________________ Name: Title: Attest___________________ Name: Title: (Corporate Seal) Countersigned AMERICAN STOCK TRANSFER & TRUST COMPANY as Rights Agent By___________________ [Form of Reverse Side of Right Certificate] FORM OF ASSIGNMENT (To be executed by the registered holder if such holder desires to transfer the Right Certificate.) FOR VALUE RECEIVED __________________________________ hereby sells, assigns and transfers unto __________________________ ------------------------------------------------------------ (Please print name and address of Transferee) ____________________________________________________________ this Right Certificate, together with all right, title and interest therein, and does hereby irrevocably constitute and appoint __________________ attorney, to transfer the within Right Certificate on the books of the within-named Company, with full power of substitution. Dated: _______________, 19__ ------------------------- Signature Signature Guaranteed:AGREEMENT.]1
Appears in 1 contract
Sources: Rights Agreement (Orthologic Corp)
IN TESTIMONY WHEREOF. ▇▇▇▇▇▇▇▇'▇I have hereunto subscribed my name and affixed my seal of office the day and year last above written. Print Name: ------------------------- Notary Public, INC. has caused this Statement to be signed under its corporate seal by its Chairman and Chief Executive Officer and its Secretary as State of the 23rd day of SeptemberFlorida at Large My Commission expires Prepared by: Bryn & Associates, 1998. ▇▇▇▇▇▇▇▇'▇, INC. By: ________________________________ ▇▇▇▇▇P.A. ▇ ▇. ▇▇▇▇▇▇▇▇ Chairman and Chief Executive Officer ATTEST: ------------------------- ▇▇▇▇., #▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ President(▇▇▇) ▇▇▇-▇▇▇▇ EXHIBIT C GUARANTY PERSONAL GUARANTEE OF INDEBTEDNESS (Joint and Several) In consideration of and as an inducement to Four Star Financial Services, Secretary LLC ("Four Star Financial Services"), to enter into that certain loan agreement, dated as of June 22, 2001 (the "Loan Agreement") by and Chief Operating Officer EXHIBIT B [Form between Four Star Financial Services ("Lender") and CyberAds, Inc, ("Borrower") in reliance upon this Personal Guarantee of Right Certificate] Certificate No. R- __________ Rights NOT EXERCISABLE AFTER OCTOBER 5Indebtedness (the "Guarantee"), 2008 OR EARLIER IF REDEEMED OR EXCHANGED BY THE COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT $0.01 PER RIGHT ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS SUCH TERM IS DEFINED IN THE RIGHTS AGREEMENT (AS HEREINAFTER DEFINED)) AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS REPRESENTED BY THIS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHT CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY BE OR BECOME VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF THE AGREEMENT.]1/ Right Certificate ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇'▇, INC. This certifies that ("Guarantors") jointly and severally, or registered assignsunconditionally guarantee the due and punctual payment of all payment, is both interest and principal (as defined in the registered owner Loan Agreement), and all other sums due (including interest and penalties) and to be paid by Borrower pursuant to the Loan Agreement and the performance by Borrower of the number of Rights set forth above, each of which entitles the owner thereof, subject to all the terms, provisions conditions, covenants and conditions agreements of the Rights Loan Agreement, dated as and guarantors, jointly and severally, agree to pay all of September 23Lender's costs, 1998 (expenses and reasonable attorney's fees incurred in enforcing the "Rights Agreement")covenants and agreements of Borrower in the Loan Agreement or incurred by Lender in enforcing the Guarantee. Guarantors waive notices of the acceptance of the Guarantee, between ▇▇▇▇▇▇▇▇'▇presentment, INC.protest, notice of protest and any and all demands for performance or any and all notices of non- performance which might otherwise be a Delaware corporation (condition precedent to the "Company")liability of Guarantors under this Guarantee, and AMERICAN STOCK TRANSFER & TRUST COMPANY, a New York corporation (the "Rights Agent"), to purchase from the Company at any time after the Separation Date (as such term is defined in the Rights Agreement) Guarantors covenant and prior to the close of business (5:00 PM New York time) on October 5, 2008 at the office or offices of the Rights Agent designated for such purposeagree that Lender may proceed directly against Guarantors, or its successors as Rights Agentany of them individually or in any combination, one one-hundredth without first proceeding or making claim or exhausting any remedy against Borrower or pursuant any particular remedy or remedies available to Lender. Guarantors, jointly and severally, covenant and agree that, without releasing, diminishing, or otherwise affecting the liability of a fully paid, nonassessable share Guarantors under this Guarantee or the performance of Series B Preferred Stock, par value $0.01 per share ("Series B Share") of the Company, at a purchase price of Fifteen Dollars ($15) per one one-hundredth of a share (the "Purchase Price"), upon presentation and surrender of any obligation contained in this Right Certificate with the Form of Election to Purchase and related Certificate duly executed. The number of rights evidenced by this Right Certificate (and the number of shares that may be purchased upon exercise thereof) set forth abovedocument, and without affecting the Purchase Price per share set forth aboverights of Lender, are the number and Purchase Price as of September 23, 1998 based on the Series B Shares as constituted at such date. Upon the occurrence of a Triggering Event (as such term is defined in the Rights Agreement), if the Rights evidenced by this Right Certificate are beneficially owned by (a) an Acquiring Person or an Affiliate or Associate of any such Acquiring Person (as such terms are defined in the Rights Agreement), (b) a transferee of any such Acquiring Person, Associate or Affiliate (other than a bona fide purchaser for value who has no knowledge that the transferor was an Acquiring Person or an Associate or Affiliate of an Acquiring Person) or (c) under certain circumstances specified in the Rights Agreement, a transferee of a person or entity who, after such transfer, became an Acquiring Person, such Rights shall become null and void and no holder hereof shall have any right with respect to such rights from and after the occurrence of any such Triggering Event. As provided in the Rights Agreement, the Purchase Price and the number and kind of Series B Shares or other securities or other property that may be purchased upon the exercise of the Rights evidenced by this Right Certificate are subject to modification and adjustment upon the happening of certain events. The Board Lender may, at its option, at any time after and from time to time, and without notice to or further consent of any Guarantor: (a) make any agreement extending or reducing the right term of the Company to redeem Loan or otherwise altering the Rights has expired terms of payment under the Loan Agreement or terminated (granting any indulgences with certain exceptions) exchange all or part of the then outstanding and exercisable Rights (other than those held by the Acquiring Person and Affiliates and Associates of the Acquiring Person) for Common Shares (as such term is defined in the Rights Agreement) at an exchange ratio of one Common Share per Right, as adjusted. Immediately upon the action of the Board ordering an exchange of the Rights, the Rights affected by such order will no longer be exercisable and thereafter the only right of the holders of such Rights will be to receive the Common Shares issuable by the Company in exchange for such Rights. This Right Certificate is subject to all of the terms, provisions and conditions of the Rights Agreement, which terms, provisions and conditions are hereby incorporated herein by reference and made a part hereof and to which Rights Agreement reference is hereby made for a full description of the rights, limitations of rights, obligations, duties and immunities hereunder of the Rights Agent, the Company and the holders of the Right Certificates, which limitations of rights include the temporary suspension of the exercisability of such Rights for not more than ninety (90) days at the election of the Company and under certain circumstances specified in such Rights Agreement. Copies of the Rights Agreement are on file at the above- mentioned office of the Rights Agent and are also available upon written request respect to the Company. This Right Certificate, with Loan Agreement; and (b) exercise or without other Right Certificates, upon surrender at the principal office refrain from exercising or offices of the Rights Agent designated for such purpose, may be exchanged for another Right Certificate or Right Certificates of like tenor and date evidencing Rights entitling the holder to purchase a like aggregate number of Series B Shares as the Rights evidenced by the Right Certificate or Right Certificates surrendered shall have entitled such holder to purchase. If the Rights evidenced by this Right Certificate shall be exercised in part, the holder shall be entitled to receive upon surrender hereof another Right Certificate or Right Certificates for the number of whole Rights not exercised. Subject to the provisions of the Rights Agreement, the Rights evidenced by this Certificate may be redeemed at a redemption price of One Cent ($0.01) per Right at any time prior to the earlier of (A) the close of business 10 Business Days (as such term in defined in the Rights Agreement) after the Shares Acquisition Date (as such term is defined in the Rights Agreement) or (B) the Final Expiration Date (as such term is defined in the Rights Agreement), unless the period for redemption is extended as permitted in the Rights Agreement. Thereafter, the Board of Directors of the Company (the "Board") may only redeem the Rights in certain specified circumstances including in connection with certain events not involving an Acquiring Person or an Affiliate or Associate of an Acquiring Person. In addition, the Company's right of redemption may be reinstated if, among other things, an Acquiring Person reduces his beneficial ownership to ten percent (10%) or less of the outstanding Common Shares of the Company in a transaction or series of transactions not involving the Company. Immediately upon the action of the Board ordering redemption of the Rights, the Rights will no longer be exercisable, except where the redemption is made in connection with an event not involving an Acquiring Person or Affiliate or Associate of an Acquiring Person (in which circumstance the effective time of the redemption may be deferred); and, in general, thereafter the only right of the holders of the Rights evidenced hereby will be to receive the Redemption Price. The terms of the Rights evidenced by this Certificate may be supplemented or amended without the approval of any holder of the Rights (or the Common Shares) as set forth in the Rights Agreement. No fractional Series B Shares will be issued upon the exercise of any Right or Rights evidenced hereby (other than fractions that are integral multiples of one one-hundredth of a Series B Share, which may, at the election of the Company, be evidenced by depositary receipts), but in lieu thereof a cash payment will be made as provided in the Rights Agreement. No holder of this Right Certificate, as such, shall be entitled to vote or receive dividends or be deemed for any purpose the holder of Series B Shares or of any other securities of the Company that may at any time be issuable on the exercise hereof, nor shall anything contained in the Rights Agreement or herein be construed to confer upon the holder hereof, as such, any of the rights of a stockholder of the Company or waiving any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action, or to receive notice of meetings or other actions affecting stockholders (except as provided in the Rights Agreement), or to receive dividends or subscription rights, or otherwise, until the Rights evidenced by this Right Certificate shall have been exercised as provided in the Rights Agreement. This Right Certificate shall not be valid or obligatory for any purpose until it shall have been countersigned by the Rights Agent. WITNESS the facsimile signatures of the proper officers of the Company. Dated: ___________, 19__ ▇▇▇▇▇▇▇▇'▇, INC. By_______________________ Name: Title: Attest___________________ Name: Title: (Corporate Seal) Countersigned AMERICAN STOCK TRANSFER & TRUST COMPANY as Rights Agent By___________________ [Form of Reverse Side of Right Certificate] FORM OF ASSIGNMENT (To be executed by the registered holder if such holder desires to transfer the Right CertificateLender might have.) FOR VALUE RECEIVED __________________________________ hereby sells, assigns and transfers unto __________________________ ------------------------------------------------------------ (Please print name and address of Transferee) ____________________________________________________________ this Right Certificate, together with all right, title and interest therein, and does hereby irrevocably constitute and appoint __________________ attorney, to transfer the within Right Certificate on the books of the within-named Company, with full power of substitution. Dated: _______________, 19__ ------------------------- Signature Signature Guaranteed:
Appears in 1 contract
IN TESTIMONY WHEREOF. ▇▇▇▇▇▇▇▇'▇I have hereunto set my hand and affixed my official seal in the City and State aforesaid, INCthe day and year first above written. has caused this Statement to be signed under its corporate seal by its Chairman and Chief Executive Officer and its Secretary as of the 23rd day of September, 1998. ▇▇▇▇▇▇▇▇'▇, INC. By________________________ Notary Public My Commission Expires: ___________________________ EXHIBIT D MORTGAGEE WAIVER ---------------- To: [insert name of lender] ______ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Chairman and Chief Executive Officer ATTEST: ------------------------- ▇▇▇▇▇▇ ▇▇▇▇▇ President, Secretary and Chief Operating Officer EXHIBIT B [Form of Right Certificate] Certificate No. R- ___________ Rights NOT EXERCISABLE AFTER OCTOBER 5, 2008 OR EARLIER IF REDEEMED OR EXCHANGED BY THE COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT $0.01 PER RIGHT ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS SUCH TERM IS DEFINED IN THE RIGHTS AGREEMENT (AS HEREINAFTER DEFINEDthe "Mortgagor")) AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS REPRESENTED BY THIS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHT CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY BE OR BECOME VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF THE AGREEMENT.]1/ Right Certificate ▇▇▇▇▇▇▇▇'▇, INC. This certifies that , or registered assigns, is the registered owner mortgagor of the number of Rights set forth above, each of which entitles the owner thereof, subject to the terms, provisions and conditions of the Rights Agreement, dated premises known as of September 23, 1998 [street address] (the "Rights AgreementPremises"), between ▇▇▇▇▇▇▇▇'▇more fully described in that certain [name of mortgage document], INC., a Delaware corporation recorded on [date mortgage document recorded] at Recorder's File No. ______ in the real estate records of [jurisdiction of recordation of mortgage document] (the "CompanyMortgage"), and AMERICAN STOCK TRANSFER & TRUST COMPANY, a New York corporation (the "Rights Agent"), to purchase from the Company at any time after the Separation Date (copy of which is attached hereto as such term is defined in the Rights Agreement) and prior to the close of business (5:00 PM New York time) on October 5, 2008 at the office or offices of the Rights Agent designated for such purpose, or its successors as Rights Agent, one one-hundredth of a fully paid, nonassessable share of Series B Preferred Stock, par value $0.01 per share ("Series B Share") of the Company, at a purchase price of Fifteen Dollars ($15) per one one-hundredth of a share (the "Purchase Price"), upon presentation and surrender of this Right Certificate with the Form of Election to Purchase and related Certificate duly executed. The number of rights evidenced by this Right Certificate (and the number of shares that may be purchased upon exercise thereof) set forth above, and the Purchase Price per share set forth above, are the number and Purchase Price as of September 23, 1998 based on the Series B Shares as constituted at such date. Upon the occurrence of a Triggering Event (as such term is defined in the Rights Agreement), if the Rights evidenced by this Right Certificate are beneficially owned by (a) an Acquiring Person or an Affiliate or Associate of any such Acquiring Person (as such terms are defined in the Rights Agreement), (b) a transferee of any such Acquiring Person, Associate or Affiliate (other than a bona fide purchaser for value who has no knowledge that the transferor was an Acquiring Person or an Associate or Affiliate of an Acquiring Person) or (c) under certain circumstances specified in the Rights Agreement, a transferee of a person or entity who, after such transfer, became an Acquiring Person, such Rights shall become null and void and no holder hereof shall have any right with respect to such rights from and after the occurrence of any such Triggering Event. As provided in the Rights Agreement, the Purchase Price and the number and kind of Series B Shares or other securities or other property that may be purchased upon the exercise of the Rights evidenced by this Right Certificate are subject to modification and adjustment upon the happening of certain events. The Board may, at its option, at any time after the right of the Company to redeem the Rights has expired or terminated (with certain exceptions) exchange all or part of the then outstanding and exercisable Rights (other than those held by the Acquiring Person and Affiliates and Associates of the Acquiring Person) for Common Shares (as such term is defined in the Rights Agreement) at an exchange ratio of one Common Share per Right, as adjusted. Immediately upon the action of the Board ordering an exchange of the Rights, the Rights affected by such order will no longer be exercisable and thereafter the only right of the holders of such Rights will be to receive the Common Shares issuable by the Company in exchange for such Rights. This Right Certificate is subject to all of the terms, provisions and conditions of the Rights Agreement, which terms, provisions and conditions are hereby incorporated herein by reference Exhibit A and made a part hereof and to which Rights Agreement reference is hereby made for a full description of the rights, limitations of rights, obligations, duties and immunities hereunder of the Rights Agent, the Company and the holders of the Right Certificates, which limitations of rights include the temporary suspension of the exercisability of such Rights for not more than ninety (90) days at the election of the Company and under certain circumstances specified in such Rights Agreement. Copies of the Rights Agreement are on file at the above- mentioned office of the Rights Agent and are also available upon written request to the Company. This Right Certificate, with or without other Right Certificates, upon surrender at the principal office or offices of the Rights Agent designated for such purpose, may be exchanged for another Right Certificate or Right Certificates of like tenor and date evidencing Rights entitling the holder to purchase a like aggregate number of Series B Shares as the Rights evidenced by the Right Certificate or Right Certificates surrendered shall have entitled such holder to purchase. If the Rights evidenced by this Right Certificate shall be exercised in part, the holder shall be entitled to receive upon surrender hereof another Right Certificate or Right Certificates for the number of whole Rights not exercised. Subject to the provisions of the Rights Agreement, the Rights evidenced by this Certificate may be redeemed at a redemption price of One Cent ($0.01) per Right at any time prior to the earlier of (A) the close of business 10 Business Days (as such term in defined in the Rights Agreement) after the Shares Acquisition Date (as such term is defined in the Rights Agreement) or (B) the Final Expiration Date (as such term is defined in the Rights Agreement), unless the period for redemption is extended as permitted in the Rights Agreement. Thereafter, the Board of Directors of the Company (the "Board") may only redeem the Rights in certain specified circumstances including in connection with certain events not involving an Acquiring Person or an Affiliate or Associate of an Acquiring Person. In addition, the Company's right of redemption may be reinstated if, among other things, an Acquiring Person reduces his beneficial ownership to ten percent (10%) or less of the outstanding Common Shares of the Company in a transaction or series of transactions not involving the Company. Immediately upon the action of the Board ordering redemption of the Rights, the Rights will no longer be exercisable, except where the redemption is made in connection with an event not involving an Acquiring Person or Affiliate or Associate of an Acquiring Person (in which circumstance the effective time of the redemption may be deferred); and, in general, thereafter the only right of the holders of the Rights evidenced hereby will be to receive the Redemption Pricehereof. The terms of Mortgagor has leased the Rights evidenced by this Certificate may be supplemented or amended without the approval of any holder of the Rights (or the Common Shares) as set forth in the Rights Agreement. No fractional Series B Shares will be issued upon the exercise of any Right or Rights evidenced hereby (other than fractions that are integral multiples of one one-hundredth of a Series B Share, which may, at the election of the Company, be evidenced by depositary receipts), but in lieu thereof a cash payment will be made as provided in the Rights Agreement. No holder of this Right Certificate, as such, shall be entitled Premises to vote or receive dividends or be deemed for any purpose the holder of Series B Shares or of any other securities of the Company that may at any time be issuable on the exercise hereof, nor shall anything contained in the Rights Agreement or herein be construed to confer upon the holder hereof, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action, or to receive notice of meetings or other actions affecting stockholders (except as provided in the Rights Agreement), or to receive dividends or subscription rights, or otherwise, until the Rights evidenced by this Right Certificate shall have been exercised as provided in the Rights Agreement. This Right Certificate shall not be valid or obligatory for any purpose until it shall have been countersigned by the Rights Agent. WITNESS the facsimile signatures of the proper officers of the Company. Dated: _______________, 19a ____________ ▇▇▇▇▇▇▇▇'▇corporation (the "Company") as tenant pursuant to that certain Lease Agreement, INCdated as of _______________, between the Company and the Mortgagor (capitalized terms not otherwise defined herein shall have the meaning ascribed to such capitalized terms in the Lease). By[insert name of Excluded Premises User] has entered into a certain [insert description of applicable credit/loan/security agreement] with _________ ("Lender") and, as a condition precedent to the advances and other financial accommodations being made available and continuing to be made available to the Borrower, Lender requires, among other things, first priority liens on all of the Collateral (as defined below) located at the Premises (as defined in the Lease). [The Company and the undersigned have entered into a Subordination, Non-Disturbance and Attornment Agreement, dated _______________________ Name: Title: Attest___________________ Name: Title: (Corporate Seal) Countersigned AMERICAN STOCK TRANSFER & TRUST COMPANY as Rights Agent By___________________ [Form of Reverse Side of Right Certificate] FORM OF ASSIGNMENT (To be executed by the registered holder if such holder desires to transfer the Right Certificate.) FOR VALUE RECEIVED __________________________________ hereby sells, assigns and transfers unto __________________________ ------------------------------------------------------------ (Please print name and address of Transferee) ____________________________________________________________ this Right Certificate, together with all right, title and interest therein, and does hereby irrevocably constitute and appoint __________________ attorney, to transfer the within Right Certificate on the books of the within-named Company, with full power of substitution. Dated: _______________, 19__ ------------------------- Signature Signature Guaranteed:]
Appears in 1 contract
IN TESTIMONY WHEREOF. ▇▇▇▇▇▇▇▇'▇, INC. has caused this Statement to be signed under its corporate seal by its Chairman and Chief Executive Officer and its Secretary witness the signatures of the parties hereto as of the 23rd day of Septemberday, 1998. ▇▇▇▇▇▇▇▇'▇, INCmonth and year first written above. By: Title: By: Title: THIS ASSIGNMENT is entered into this ___day of ________, 20 ___, in accordance with the terms of that certain Papa John’s International, Inc. Franchise Agreement (the “Franchise Agreement”) between ________________________________ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Chairman (“You”) and Chief Executive Officer ATTEST: ------------------------- ▇▇▇▇▇▇ ▇▇▇▇▇ PresidentPapa John’s International, Secretary and Chief Operating Officer EXHIBIT B [Form of Right Certificate] Certificate No. R- __________ Rights NOT EXERCISABLE AFTER OCTOBER 5, 2008 OR EARLIER IF REDEEMED OR EXCHANGED BY THE COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT $0.01 PER RIGHT ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS SUCH TERM IS DEFINED IN THE RIGHTS AGREEMENT (AS HEREINAFTER DEFINED)) AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS REPRESENTED BY THIS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHT CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY BE OR BECOME VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF THE AGREEMENT.]1/ Right Certificate ▇▇▇▇▇▇▇▇'▇, INC. This certifies that , or registered assigns, is the registered owner of the number of Rights set forth above, each of which entitles the owner thereof, subject to the terms, provisions and conditions of the Rights Agreement, dated as of September 23, 1998 (the "Rights Agreement"), between ▇▇▇▇▇▇▇▇'▇, INC.Inc., a Delaware corporation (the "Company"“we”, “us” or “Papa John’s”), and AMERICAN STOCK TRANSFER & TRUST COMPANYexecuted concurrently with this Assignment, a New York corporation (the "Rights Agent"), to purchase from the Company at any time after the Separation Date (as such term is defined in the Rights Agreement) and prior to the close of business (5:00 PM New York time) on October 5, 2008 at the office or offices of the Rights Agent designated for such purpose, or its successors as Rights Agent, one one-hundredth of a fully paid, nonassessable share of Series B Preferred Stock, par value $0.01 per share ("Series B Share") of the Company, at a purchase price of Fifteen Dollars ($15) per one one-hundredth of a share (the "Purchase Price"), upon presentation and surrender of this Right Certificate with the Form of Election to Purchase and related Certificate duly executed. The number of rights evidenced by this Right Certificate (and the number of shares that may be purchased upon exercise thereof) set forth above, and the Purchase Price per share set forth above, are the number and Purchase Price as of September 23, 1998 based on the Series B Shares as constituted at such date. Upon the occurrence of a Triggering Event (as such term is defined in the Rights Agreement), if the Rights evidenced by this Right Certificate are beneficially owned by (a) an Acquiring Person or an Affiliate or Associate of any such Acquiring Person (as such terms are defined in the Rights Agreement), (b) a transferee of any such Acquiring Person, Associate or Affiliate (other than a bona fide purchaser for value who has no knowledge that the transferor was an Acquiring Person or an Associate or Affiliate of an Acquiring Person) or (c) under certain circumstances specified in the Rights Agreement, a transferee of a person or entity who, after such transfer, became an Acquiring Person, such Rights shall become null and void and no holder hereof shall have any right with respect to such rights from and after the occurrence of any such Triggering Event. As provided in the Rights Agreement, the Purchase Price and the number and kind of Series B Shares or other securities or other property that may be purchased upon the exercise of the Rights evidenced by this Right Certificate are subject to modification and adjustment upon the happening of certain events. The Board may, at its option, at any time after which we granted you the right of the Company to redeem the Rights has expired or terminated (with certain exceptions) exchange all or part of the then outstanding own and exercisable Rights (other than those held by the Acquiring Person and Affiliates and Associates of the Acquiring Person) for Common Shares (as such term is defined in the Rights Agreement) operate a Papa John’s restaurant located at an exchange ratio of one Common Share per Right, as adjusted. Immediately upon the action of the Board ordering an exchange of the Rights, the Rights affected by such order will no longer be exercisable and thereafter the only right of the holders of such Rights will be to receive the Common Shares issuable by the Company in exchange for such Rights. This Right Certificate is subject to all of the terms, provisions and conditions of the Rights Agreement, which terms, provisions and conditions are hereby incorporated herein by reference and made a part hereof and to which Rights Agreement reference is hereby made for a full description of the rights, limitations of rights, obligations, duties and immunities hereunder of the Rights Agent, the Company and the holders of the Right Certificates, which limitations of rights include the temporary suspension of the exercisability of such Rights for not more than ninety (90) days at the election of the Company and under certain circumstances specified in such Rights Agreement. Copies of the Rights Agreement are on file at the above- mentioned office of the Rights Agent and are also available upon written request to the Company. This Right Certificate, with or without other Right Certificates, upon surrender at the principal office or offices of the Rights Agent designated for such purpose, may be exchanged for another Right Certificate or Right Certificates of like tenor and date evidencing Rights entitling the holder to purchase a like aggregate number of Series B Shares as the Rights evidenced by the Right Certificate or Right Certificates surrendered shall have entitled such holder to purchase. If the Rights evidenced by this Right Certificate shall be exercised in part, the holder shall be entitled to receive upon surrender hereof another Right Certificate or Right Certificates for the number of whole Rights not exercised. Subject to the provisions of the Rights Agreement, the Rights evidenced by this Certificate may be redeemed at a redemption price of One Cent ($0.01) per Right at any time prior to the earlier of (A) the close of business 10 Business Days (as such term in defined in the Rights Agreement) after the Shares Acquisition Date (as such term is defined in the Rights Agreement) or (B) the Final Expiration Date (as such term is defined in the Rights Agreement), unless the period for redemption is extended as permitted in the Rights Agreement. Thereafter, the Board of Directors of the Company (the "Board") may only redeem the Rights in certain specified circumstances including in connection with certain events not involving an Acquiring Person or an Affiliate or Associate of an Acquiring Person. In addition, the Company's right of redemption may be reinstated if, among other things, an Acquiring Person reduces his beneficial ownership to ten percent (10%) or less of the outstanding Common Shares of the Company in a transaction or series of transactions not involving the Company. Immediately upon the action of the Board ordering redemption of the Rights, the Rights will no longer be exercisable, except where the redemption is made in connection with an event not involving an Acquiring Person or Affiliate or Associate of an Acquiring Person (in which circumstance the effective time of the redemption may be deferred); and, in general, thereafter the only right of the holders of the Rights evidenced hereby will be to receive the Redemption Price. The terms of the Rights evidenced by this Certificate may be supplemented or amended without the approval of any holder of the Rights (or the Common Shares) as set forth in the Rights Agreement. No fractional Series B Shares will be issued upon the exercise of any Right or Rights evidenced hereby (other than fractions that are integral multiples of one one-hundredth of a Series B Share, which may, at the election of the Company, be evidenced by depositary receipts), but in lieu thereof a cash payment will be made as provided in the Rights Agreement. No holder of this Right Certificate, as such, shall be entitled to vote or receive dividends or be deemed for any purpose the holder of Series B Shares or of any other securities of the Company that may at any time be issuable on the exercise hereof, nor shall anything contained in the Rights Agreement or herein be construed to confer upon the holder hereof, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action, or to receive notice of meetings or other actions affecting stockholders (except as provided in the Rights Agreement), or to receive dividends or subscription rights, or otherwise, until the Rights evidenced by this Right Certificate shall have been exercised as provided in the Rights Agreement. This Right Certificate shall not be valid or obligatory for any purpose until it shall have been countersigned by the Rights Agent. WITNESS the facsimile signatures of the proper officers of the Company. Dated: ___________, 19__ ▇▇▇▇▇▇▇▇'▇, INC. By_______________________ Name: Title: Attest___________________ Name: Title: (Corporate Seal) Countersigned AMERICAN STOCK TRANSFER & TRUST COMPANY as Rights Agent By___________________ [Form of Reverse Side of Right Certificate] FORM OF ASSIGNMENT (To be executed by the registered holder if such holder desires to transfer the Right Certificate.) FOR VALUE RECEIVED __________________________________ hereby sells, assigns and transfers unto __________________________ ------------------------------------------------------------ (Please print name and address of Transferee) ____________________________________________________________ this Right Certificate(the “Restaurant”). FOR VALUE RECEIVED, together with you hereby assign to us all of your right, title and interest thereinin and to those certain telephone numbers listed below and regular, classified or other telephone directory listings and does hereby irrevocably constitute listings or advertisements on or in any other directory, internet website, domain name, social media site or channel (such as, but not limited to, Facebook and appoint ____Twitter accounts or sites) and other digital or electronic marketing channel or media that includes or is associated with our trademarks and service marks and used from time to time in connection with the operation of the Restaurant at the address provided above (collectively, the “Telephone Numbers and Listings”). Except as specified herein, we shall have no liability or obligation of any kind whatsoever arising from or in connection with this Assignment, unless we notify the telephone company or other directory provider and/or the listing agencies with which you have placed telephone directory listings (all such entities are collectively referred to herein as the “Telephone Company”) to effectuate the assignment pursuant to the terms hereof. By: By: /s/ K▇▇▇▇▇▇ ▇▇▇▇▇ Title: Title: Managing Member Telephone Numbers: [name] [company] [street address] [city, state, zip] RE: [subject] Dear [name]: This Letter of Intent (“LOI”) sets forth the proposal as to the material provisions addressed herein and a bona fide offer (the “Transaction”) for the acquisition by ______________ attorney, to transfer (“Buyer”) of ___________ (__) Papa John’s restaurants (the within Right Certificate on the books of the within-named Company, with full power of substitution. Dated: “Restaurants”) from ________________ (the “Seller” or “Company”), 19__ ------------------------- Signature Signature Guaranteed:as more particularly described on Exhibit A attached hereto. This LOI is to be used as a guide in the negotiation of a definitive asset purchase agreement (“Purchase Agreement”), and does not preclude other mutually satisfactory provisions from being included in the Purchase Agreement. The Buyer and Seller will work in good faith toward entering into a definitive Purchase Agreement, which shall contain, among other things, the following terms and conditions.
Appears in 1 contract
Sources: Franchise Agreement (Dixie Foods International, Inc)
IN TESTIMONY WHEREOF. ▇▇▇▇▇▇▇▇'▇, INC. has caused this Statement to be signed under its corporate I have hereunto set my hand and affixed my official seal by its Chairman and Chief Executive Officer and its Secretary as of the 23rd day of September, 1998. ▇▇▇▇▇▇▇▇'▇, INC. By: in ________________________________ ▇▇▇▇▇▇ ▇, the day and year last above written. ▇▇▇▇▇▇▇▇ Chairman ---------------------------------------------- Notary Public in and Chief Executive Officer ATTESTfor said County and State My Commission expires: ------------------------- ▇▇▇▇▇▇ ▇▇▇▇▇ President, Secretary and Chief Operating Officer ----------------------------- EXHIBIT B [Form of Right Certificate] Certificate No. R- __________ Rights NOT EXERCISABLE AFTER OCTOBER 5MONSANTO COMPANY POWER OF ATTORNEY: LITIGATION/CLAIMS KNOW ALL MEN BY THESE PRESENTS: That from and after the date hereof ("Effective Date"), 2008 OR EARLIER IF REDEEMED OR EXCHANGED BY THE COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTIONMonsanto Company, AT THE OPTION OF THE COMPANY, AT $0.01 PER RIGHT ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS SUCH TERM IS DEFINED IN THE RIGHTS AGREEMENT (AS HEREINAFTER DEFINED)) AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS REPRESENTED BY THIS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHT CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY BE OR BECOME VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF THE AGREEMENT.]1/ Right Certificate ▇▇▇▇▇▇▇▇'▇, INC. This certifies that , or registered assigns, is a corporation organized and existing under the registered owner laws of the number State of Rights set forth aboveDelaware ("Monsanto") has made, each constituted and appointed, and by these presents does make, constitute and appoint, Solutia Inc., a corporation organized and existing under the laws of the State of Delaware ("Solutia"), its true and lawful agent and attorney, for Monsanto and in Monsanto's name, place and stead, for all purposes with respect to Third Party Claims (including, without limitation, the Pennsylvania Litigation and the Anniston Litigation) as to which entitles the owner thereofSolutia has agreed to indemnify Monsanto, and such claims against Third Parties which continue to be held by Monsanto in trust for Solutia, such Third Party Claims and claims against Third Parties being collectively referred to herein as "Claims"; and its attorney shall have, subject to (i) the terms, provisions and conditions of the Rights Protocol Agreement, dated as of September 23November 15, 1998 2002 (the "Rights Protocol Agreement"), between ▇▇▇▇▇▇▇▇'▇to which this power of attorney is entered, INC.and (ii) the Protocol Agreement dated as of July 1, a Delaware corporation 2002, by and among Pharmacia, Solutia and Monsanto Company (the "CompanyAnniston Protocol Agreement"), full power and AMERICAN STOCK TRANSFER & TRUST COMPANY, a New York corporation (the "Rights Agent"), authorization to purchase from the Company at any time after the Separation Date (as such term is defined in the Rights Agreement) and prior to the close of business (5:00 PM New York time) on October 5, 2008 at the office or offices of the Rights Agent designated for such purpose, or its successors as Rights Agent, one one-hundredth of a fully paid, nonassessable share of Series B Preferred Stock, par value $0.01 per share ("Series B Share") of the Company, at a purchase price of Fifteen Dollars ($15) per one one-hundredth of a share (the "Purchase Price"), upon presentation and surrender of this Right Certificate with the Form of Election to Purchase and related Certificate duly executed. The number of rights evidenced by this Right Certificate (and the number of shares that may be purchased upon exercise thereof) set forth above, and the Purchase Price per share set forth above, are the number and Purchase Price as of September 23, 1998 based on the Series B Shares as constituted at such date. Upon the occurrence of a Triggering Event (as such term is defined in the Rights Agreement), if the Rights evidenced by this Right Certificate are beneficially owned by (a) an Acquiring Person or an Affiliate or Associate of any such Acquiring Person (as such terms are defined in the Rights Agreement), (b) a transferee of any such Acquiring Person, Associate or Affiliate (other than a bona fide purchaser for value who has no knowledge that the transferor was an Acquiring Person or an Associate or Affiliate of an Acquiring Person) or (c) under certain circumstances specified in the Rights Agreement, a transferee of a person or entity who, after such transfer, became an Acquiring Person, such Rights shall become null and void and no holder hereof shall have any right take all action with respect to such Claims as Monsanto can take and which said attorney, acting through its officers or their delegates, who in each case, acting alone, in his or her sole discretion, think best, including without limitation, (i) to represent Monsanto with respect to such Claims for so long as such Claims are unresolved; (ii) to appear in Monsanto's name and to execute, deliver and file all pleadings, motions and other filings, at trial, on appeal, or in a proceeding, through counsel retained by Solutia or by officers of Solutia or their delegates, acting alone, or otherwise; (iii) to assert or waive any or all rights with respect to such Claims; (iv) to engage in all phases of discovery with respect to such Claims, including without limitation, to take depositions, defend depositions and propound or respond to other discover requests, such as interrogatories or requests for production of documents; (v) to direct and accept service of process with respect to such claims; (vi) to execute and deliver affidavits as may be necessary or desirable with respect to such Claims; (vii) to agree to and to represent Monsanto in alternative resolution proceedings, including arbitration or mediation of Claims; (viii) to discuss or negotiate settlement agreements and releases with Third Parties with respect to such Claims on such terms and conditions as Solutia thinks best; (ix) to execute, deliver and if needed, file any and all settlement agreements, releases and other agreements, documents and instruments as may be required and any and all modifications thereto; and (x) to obtain and post bonds pending appeal; hereby giving and granting to Monsanto's said attorney full power and authority to do and perform all and every act and thing whatsoever necessary to be done in the premises as fully to all intents and purposes as Monsanto might or could do, hereby ratifying and confirming all that its said attorney may do pursuant to this power. Subject to the Protocol Agreement and the Anniston Protocol Agreement, Monsanto hereby gives and grants to its said attorney from and after the occurrence of any such Triggering Event. As provided Effective Date, full power and authority to do and perform all and every act and thing whatsoever necessary to be done in the Rights Agreementpremises, in order fully to carry out and effectuate the Purchase Price authority herein granted, as fully to all intents and the number purposes as Monsanto might or could do if acting through its own officers or delegates, and kind of Series B Shares or other securities or other property Monsanto hereby ratifies and confirms all that its said attorney may be purchased upon pursuant to this power. Monsanto hereby further authorizes and empowers its said attorney from and after Effective Date to substitute and appoint in the place and stead of its said attorney, or to employ agents or sub-agents as Solutia thinks best, one or more attorney or attorneys to exercise for Monsanto as its attorney or attorneys any or all of the Rights evidenced by this Right Certificate are subject powers and authorities hereby conferred; and to modification revoke such appointment or appointments from time to time, and adjustment upon to substitute or appoint any other or others in the happening place of certain eventssuch attorney or attorneys as Solutia shall from time to time think fit. The Board mayUnless specifically defined herein, at its option, at any time after capitalized terms shall have the right of the Company to redeem the Rights has expired or terminated (with certain exceptions) exchange all or part of the then outstanding and exercisable Rights (other than those held by the Acquiring Person and Affiliates and Associates of the Acquiring Person) for Common Shares (as such term is meaning defined in the Rights Amended Distribution Agreement) at an exchange ratio of one Common Share per Right, as adjusted. Immediately upon the action of the Board ordering an exchange of the Rights, the Rights affected by such order will no longer be exercisable and thereafter the only right of the holders of such Rights will be to receive the Common Shares issuable by the Company in exchange for such Rights. This Right Certificate is subject to all of the terms, provisions and conditions of the Rights Agreement, which terms, provisions and conditions are hereby incorporated herein by reference and made a part hereof and to which Rights Agreement reference is hereby made for a full description of the rights, limitations of rights, obligations, duties and immunities hereunder of the Rights Agent, the Company and the holders of the Right Certificates, which limitations of rights include the temporary suspension of the exercisability of such Rights for not more than ninety (90) days at the election of the Company and under certain circumstances specified in such Rights Agreement. Copies of the Rights Agreement are on file at the above- mentioned office of the Rights Agent and are also available upon written request to the Company. This Right Certificate, with or without other Right Certificates, upon surrender at the principal office or offices of the Rights Agent designated for such purpose, may be exchanged for another Right Certificate or Right Certificates of like tenor and date evidencing Rights entitling the holder to purchase a like aggregate number of Series B Shares as the Rights evidenced by the Right Certificate or Right Certificates surrendered shall have entitled such holder to purchase. If the Rights evidenced by this Right Certificate shall be exercised in part, the holder shall be entitled to receive upon surrender hereof another Right Certificate or Right Certificates for the number of whole Rights not exercised. Subject to the provisions of the Rights Agreement, the Rights evidenced by this Certificate may be redeemed at a redemption price of One Cent ($0.01) per Right at any time prior to the earlier of (A) the close of business 10 Business Days (as such term in defined in the Rights Agreement) after the Shares Acquisition Date (as such term is defined in the Rights Agreement) or (B) the Final Expiration Date (as such term is defined in the Rights Agreement), unless the period for redemption is extended as permitted in the Rights Agreement. Thereafter, the Board of Directors of the Company (the "Board") may only redeem the Rights in certain specified circumstances including in connection with certain events not involving an Acquiring Person or an Affiliate or Associate of an Acquiring Person. In addition, the Company's right of redemption may be reinstated if, among other things, an Acquiring Person reduces his beneficial ownership to ten percent (10%) or less of the outstanding Common Shares of the Company in a transaction or series of transactions not involving the Company. Immediately upon the action of the Board ordering redemption of the Rights, the Rights will no longer be exercisable, except where the redemption is made in connection with an event not involving an Acquiring Person or Affiliate or Associate of an Acquiring Person (in which circumstance the effective time of the redemption may be deferred); and, in general, thereafter the only right of the holders of the Rights evidenced hereby will be to receive the Redemption Price. The terms of the Rights evidenced by this Certificate may be supplemented or amended without the approval of any holder of the Rights (or the Common Shares) as set forth in the Rights Agreement. No fractional Series B Shares will be issued upon the exercise of any Right or Rights evidenced hereby (other than fractions that are integral multiples of one one-hundredth of a Series B Share, which may, at the election of the Company, be evidenced by depositary receipts), but in lieu thereof a cash payment will be made as provided in the Rights Agreement. No holder of this Right Certificate, as such, shall be entitled to vote or receive dividends or be deemed for any purpose the holder of Series B Shares or of any other securities of the Company that may at any time be issuable on the exercise hereof, nor shall anything contained in the Rights Agreement or herein be construed to confer upon the holder hereof, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action, or to receive notice of meetings or other actions affecting stockholders (except as provided in the Rights Agreement), or to receive dividends or subscription rights, or otherwise, until the Rights evidenced by this Right Certificate shall have been exercised as provided in the Rights Agreement. This Right Certificate shall not be valid or obligatory for any purpose until it shall have been countersigned by the Rights Agent. WITNESS the facsimile signatures of the proper officers of the Company. Dated: ___________, 19__ ▇▇▇▇▇▇▇▇'▇, INC. By_______________________ Name: Title: Attest___________________ Name: Title: (Corporate Seal) Countersigned AMERICAN STOCK TRANSFER & TRUST COMPANY as Rights Agent By___________________ [Form of Reverse Side of Right Certificate] FORM OF ASSIGNMENT (To be executed by the registered holder if such holder desires to transfer the Right Certificate.) FOR VALUE RECEIVED __________________________________ hereby sells, assigns and transfers unto __________________________ ------------------------------------------------------------ (Please print name and address of Transferee) ____________________________________________________________ this Right Certificate, together with all right, title and interest therein, and does hereby irrevocably constitute and appoint __________________ attorney, to transfer the within Right Certificate on the books of the within-named Company, with full power of substitution. Dated: _______________, 19__ ------------------------- Signature Signature Guaranteed:
Appears in 1 contract
IN TESTIMONY WHEREOF. witness the signature of the Tenant as of the day and year first set forth above. TENANT: PEABODY CAMPUS, LLC, a Maryland limited liability company By: Erickson Retirement Communities, ▇▇▇▇▇▇▇▇'▇, INC▇ Maryland limited liability company. has caused this Statement to be signed under its corporate seal by its Chairman and Chief Executive Officer and its Secretary as of the 23rd day of September, 1998. ▇▇▇▇▇▇▇▇'▇, INC. Its: Sole Managing Member By: ______________________________ Jeffrey A. Jacobson, Managing Director STATE OF ------------------------------ COUNTY OF ----------------------------- The foregoing instrument was acknowledged before me this ___ day of October, 2002, by Jeffrey A. Jacobson, the Managing D▇▇▇▇▇▇▇ ▇. ▇ ▇▇▇▇▇▇▇▇ Chairman and Chief Executive Officer ATTEST: ------------------------- Retirement Communities, LL▇▇▇▇▇, ▇ ▇▇▇▇▇ Presidentyland limited liability company, Secretary and Chief Operating Officer EXHIBIT B [Form the Sole Managing Member of Right Certificate] Certificate No. R- __________ Rights NOT EXERCISABLE AFTER OCTOBER 5Peabody Campus, 2008 OR EARLIER IF REDEEMED OR EXCHANGED BY THE COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT $0.01 PER RIGHT ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS SUCH TERM IS DEFINED IN THE RIGHTS AGREEMENT (AS HEREINAFTER DEFINED)) AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS REPRESENTED BY THIS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHT CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY BE OR BECOME VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF THE AGREEMENT.]1/ Right Certificate ▇▇▇▇▇▇▇▇'▇, INC. This certifies that , or registered assigns, is the registered owner of the number of Rights set forth above, each of which entitles the owner thereof, subject to the terms, provisions and conditions of the Rights Agreement, dated as of September 23, 1998 (the "Rights Agreement"), between ▇▇▇▇▇▇▇▇'▇, INC.LLC, a Delaware corporation (the "Company"), and AMERICAN STOCK TRANSFER & TRUST COMPANY, a New York corporation (the "Rights Agent"), Maryland limited liability company on behalf of said limited liability companies. He is personally known to purchase from the Company at any time after the Separation Date (as such term is defined in the Rights Agreement) and prior to the close of business (5:00 PM New York time) on October 5, 2008 at the office me or offices of the Rights Agent designated for such purpose, or its successors as Rights Agent, one one-hundredth of a fully paid, nonassessable share of Series B Preferred Stock, par value $0.01 per share ("Series B Share") of the Company, at a purchase price of Fifteen Dollars ($15) per one one-hundredth of a share (the "Purchase Price"), upon presentation and surrender of this Right Certificate with the Form of Election to Purchase and related Certificate duly executed. The number of rights evidenced by this Right Certificate (and the number of shares that may be purchased upon exercise thereof) set forth above, and the Purchase Price per share set forth above, are the number and Purchase Price as of September 23, 1998 based on the Series B Shares as constituted at such date. Upon the occurrence of a Triggering Event (as such term is defined in the Rights Agreement), if the Rights evidenced by this Right Certificate are beneficially owned by (a) an Acquiring Person or an Affiliate or Associate of any such Acquiring Person (as such terms are defined in the Rights Agreement), (b) a transferee of any such Acquiring Person, Associate or Affiliate (other than a bona fide purchaser for value who has no knowledge that the transferor was an Acquiring Person or an Associate or Affiliate of an Acquiring Person) or (c) under certain circumstances specified in the Rights Agreement, a transferee of a person or entity who, after such transfer, became an Acquiring Person, such Rights shall become null and void and no holder hereof shall have any right with respect to such rights from and after the occurrence of any such Triggering Event. As provided in the Rights Agreement, the Purchase Price and the number and kind of Series B Shares or other securities or other property that may be purchased upon the exercise of the Rights evidenced by this Right Certificate are subject to modification and adjustment upon the happening of certain events. The Board may, at its option, at any time after the right of the Company to redeem the Rights has expired or terminated (with certain exceptions) exchange all or part of the then outstanding and exercisable Rights (other than those held by the Acquiring Person and Affiliates and Associates of the Acquiring Person) for Common Shares (as such term is defined in the Rights Agreement) at an exchange ratio of one Common Share per Right, as adjusted. Immediately upon the action of the Board ordering an exchange of the Rights, the Rights affected by such order will no longer be exercisable and thereafter the only right of the holders of such Rights will be to receive the Common Shares issuable by the Company in exchange for such Rights. This Right Certificate is subject to all of the terms, provisions and conditions of the Rights Agreement, which terms, provisions and conditions are hereby incorporated herein by reference and made a part hereof and to which Rights Agreement reference is hereby made for a full description of the rights, limitations of rights, obligations, duties and immunities hereunder of the Rights Agent, the Company and the holders of the Right Certificates, which limitations of rights include the temporary suspension of the exercisability of such Rights for not more than ninety (90) days at the election of the Company and under certain circumstances specified in such Rights Agreement. Copies of the Rights Agreement are on file at the above- mentioned office of the Rights Agent and are also available upon written request to the Company. This Right Certificate, with or without other Right Certificates, upon surrender at the principal office or offices of the Rights Agent designated for such purpose, may be exchanged for another Right Certificate or Right Certificates of like tenor and date evidencing Rights entitling the holder to purchase a like aggregate number of Series B Shares as the Rights evidenced by the Right Certificate or Right Certificates surrendered shall have entitled such holder to purchase. If the Rights evidenced by this Right Certificate shall be exercised in part, the holder shall be entitled to receive upon surrender hereof another Right Certificate or Right Certificates for the number of whole Rights not exercised. Subject to the provisions of the Rights Agreement, the Rights evidenced by this Certificate may be redeemed at a redemption price of One Cent ($0.01) per Right at any time prior to the earlier of (A) the close of business 10 Business Days (as such term in defined in the Rights Agreement) after the Shares Acquisition Date (as such term is defined in the Rights Agreement) or (B) the Final Expiration Date (as such term is defined in the Rights Agreement), unless the period for redemption is extended as permitted in the Rights Agreement. Thereafter, the Board of Directors of the Company (the "Board") may only redeem the Rights in certain specified circumstances including in connection with certain events not involving an Acquiring Person or an Affiliate or Associate of an Acquiring Person. In addition, the Company's right of redemption may be reinstated if, among other things, an Acquiring Person reduces his beneficial ownership to ten percent (10%) or less of the outstanding Common Shares of the Company in a transaction or series of transactions not involving the Company. Immediately upon the action of the Board ordering redemption of the Rights, the Rights will no longer be exercisable, except where the redemption is made in connection with an event not involving an Acquiring Person or Affiliate or Associate of an Acquiring Person (in which circumstance the effective time of the redemption may be deferred); and, in general, thereafter the only right of the holders of the Rights evidenced hereby will be to receive the Redemption Price. The terms of the Rights evidenced by this Certificate may be supplemented or amended without the approval of any holder of the Rights (or the Common Shares) as set forth in the Rights Agreement. No fractional Series B Shares will be issued upon the exercise of any Right or Rights evidenced hereby (other than fractions that are integral multiples of one one-hundredth of a Series B Share, which may, at the election of the Company, be evidenced by depositary receipts), but in lieu thereof a cash payment will be made as provided in the Rights Agreement. No holder of this Right Certificate, as such, shall be entitled to vote or receive dividends or be deemed for any purpose the holder of Series B Shares or of any other securities of the Company that may at any time be issuable on the exercise hereof, nor shall anything contained in the Rights Agreement or herein be construed to confer upon the holder hereof, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action, or to receive notice of meetings or other actions affecting stockholders (except as provided in the Rights Agreement), or to receive dividends or subscription rights, or otherwise, until the Rights evidenced by this Right Certificate shall have been exercised as provided in the Rights Agreement. This Right Certificate shall not be valid or obligatory for any purpose until it shall have been countersigned by the Rights Agent. WITNESS the facsimile signatures of the proper officers of the Company. Dated: ___________, 19__ ▇▇▇▇▇▇▇▇'▇, INC. By_______________________ Name: Title: Attest___________________ Name: Title: (Corporate Seal) Countersigned AMERICAN STOCK TRANSFER & TRUST COMPANY as Rights Agent By___________________ [Form of Reverse Side of Right Certificate] FORM OF ASSIGNMENT (To be executed by the registered holder if such holder desires to transfer the Right Certificate.) FOR VALUE RECEIVED __________________________________ hereby sells, assigns and transfers unto __________________________ ------------------------------------------------------------ (Please print name and address of Transferee) ________________________produced ____________________________________ this Right Certificateas identification. Printed Name: ------------------------------ Notary Public, together with State of -------------------- Commission #: ------------------------------ My commission expires: --------------------- (NOTARY SEAL) EXHIBIT G SINGLE PURPOSE ENTITY REQUIREMENTS ---------------------------------- Tenant or its assignee shall throughout the Term hereof do all rightthings necessary to continue to be and remain a Single Purpose Entity [including without limitation, title if Tenant is a partnership, insuring that each General Partner of Tenant continues as a Single Purpose Entity and shall not amend its Articles of Organization or Operating Agreement, or if Tenant is a corporation, that Tenant shall not amend its Articles of Incorporation or Bylaws, or if Tenant is a limited liability company, Tenant shall prevent any Member manager of Tenant from amending such Member's Articles of Organization or Bylaws or other formation documents). For purposes hereof, Single Purpose Entity shall mean a person, other than an individual, which (a) is formed, organized or reorganized solely for the purpose of holding, directly, the leasehold interest thereinin the Leased Property and undertaking the activities in respect thereof as contemplated under the Lease, (b) does not engage in any business unrelated to the Leased Property and the Permitted Use thereof under the Lease, (c) has not and will not have any assets other than those related to its interest in the Leased Property and has not and will not have any indebtedness other than indebtedness contemplated or as permitted under the Lease or otherwise incurred in the ordinary course of business, (d) maintains its own separate books and records and its own accounts, in each case which are separate and apart from the books and records of any other any individual, corporation, partnership, joint venture, limited liability company, limited liability partnership, association, joint stock company, trust, unincorporated organization, or other organization, whether or not a legal entity, and any governmental authority ("Person"), (e) holds itself out as being a Person separate and apart from any other Person, (f) does hereby irrevocably constitute not and appoint __________________ attorney, to transfer the within Right Certificate on the books will not commingle its funds or assets with those of any other Person except as required under any of the withinThird Party Documents, (g) conducts its own business in its own name, (h) maintains separate financial statements, (i) pays its own liabilities out of its own funds, (j) observes all limited liability company formalities, partnership formalities or corporate formalities, as applicable, (k) maintains an arm's-named Companylength relationship with its Affiliated Persons, (l) does not guarantee or otherwise obligate itself with full power respect to the debts of substitution. Dated: _______________any other Person or hold out its credit as being available to satisfy the obligations of any other Person except as required or expressly authorized under the Lease, 19__ ------------------------- Signature Signature Guaranteed:(m) does not acquire obligations or securities of its partners, members or shareholders, (n) allocates fairly and reasonably shared expenses, including without limitation, any overhead for shared office space, (if any), (o) uses separate stationary, invoices and checks, (p) except as required or expressly authorized or contemplated under the Lease, and the Third Party Documents, does not and will not pledge its assets for the benefit of any Person other than Landlord or make any loans or advances to any other Person, (q) does and will correct any known misunderstanding regarding its separate identity, (r) maintains adequate capital in light of its contemplated business operations, and (s) has and will have an Operating Agreement, partnership agreement, certificate of incorporation or other organization document which complies with the standards and requirements for a Single Purpose Entity set by Rating Agencies (as hereinafter defined) as of the date hereof applicable to a limited liability company, partnership or corporation, as applicable.
Appears in 1 contract
Sources: Ground Lease Agreement (CNL Retirement Properties Inc)
IN TESTIMONY WHEREOF. ▇▇▇▇▇▇▇▇'▇, INC. DAISYTEK INTERNATIONAL CORPORATION has caused this Statement to be signed under its corporate seal by its Chairman and Chief Executive Officer __________________ and its Secretary as of the 23rd ____ day of SeptemberOctober, 19981999. ▇▇▇▇▇▇▇▇'▇, INC. DAISYTEK INTERNATIONAL CORPORATION By: ________________________________ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Chairman and Chief Executive Officer Name: Title: ATTEST: ------------------------- ▇▇▇▇▇▇ ▇▇▇▇▇ President, Secretary and Chief Operating Officer -------------------------------- Name: Title: EXHIBIT B [Form of Right Certificate] Certificate No. R- __________ Rights NOT EXERCISABLE AFTER OCTOBER 525, 2008 2009 OR EARLIER IF REDEEMED OR EXCHANGED BY THE COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT $0.01 0.001 PER RIGHT ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS SUCH TERM IS DEFINED IN THE RIGHTS AGREEMENT (AS HEREINAFTER DEFINED)) AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS REPRESENTED BY THIS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHT CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY BE OR BECOME VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF THE AGREEMENT.]1/ AGREEMENT.] 1/ Right Certificate ▇▇▇▇▇▇▇▇'▇, INC. DAISYTEK INTERNATIONAL CORPORATION This certifies that , or registered assigns, is the registered owner of the number of Rights set forth above, each of which entitles the owner thereof, subject to the terms, provisions and conditions of the Rights Agreement, dated as of September 23October 15, 1998 1999 (the "Rights Agreement"), between ▇▇▇▇▇▇▇▇'▇, INC.DAISYTEK INTERNATIONAL CORPORATION, a Delaware corporation (the "Company"), and AMERICAN STOCK TRANSFER & TRUST COMPANYCHASEMELLON SHAREHOLDER SERVICES, LLC, a New York corporation Jersey limited liability company (the "Rights Agent"), to purchase from the Company at any time after the Separation Date (as such term is defined in the Rights Agreement) and prior to the close of business (5:00 PM New York time) on October 525, 2008 2009, at the office or offices of the Rights Agent designated for such purpose, or its successors as Rights Agent, one one-hundredth thousandth of a fully paid, nonassessable share of Series B A Preferred Stock, par value $0.01 1.00 per share ("Series B A Share") of the Company, at a purchase price of Fifteen Dollars ($15) per 70 one one-hundredth thousandth of a share (the "Purchase Price"), upon presentation and surrender of this Right Certificate with the Form of Election to Purchase and related Certificate duly executed. The number of rights evidenced by this Right Certificate (and the number of shares that may be purchased upon exercise thereof) set forth above, and the Purchase Price per share set forth above, are the number and Purchase Price as of September 23October 15, 1998 1999 based on the Series B A Shares as constituted at such date. Upon the occurrence of a Triggering Event (as such term is defined in the Rights Agreement), if the Rights evidenced by this Right Certificate are beneficially owned by (a) an Acquiring Person or an Affiliate or Associate of any such Acquiring Person (as such terms are defined in the Rights Agreement), (b) a transferee of any such Acquiring Person, Associate or Affiliate (other than a bona fide purchaser for value who has no knowledge that the transferor was an Acquiring Person or an Associate or Affiliate of an Acquiring Person) or (c) under certain circumstances specified in the Rights Agreement, a transferee of a person or entity who, after such transfer, became an Acquiring Person, such Rights shall become null and void and no holder hereof shall have any right with respect to such rights from and after the occurrence of any such Triggering Event. As provided in the Rights Agreement, the Purchase Price and the number and kind of Series B A Shares or other securities or other property that may be purchased upon the exercise of the Rights evidenced by this Right Certificate are subject to modification and adjustment upon the happening of certain events. The Board may, at its option, at any time after the right of the Company to redeem the Rights has expired or terminated (with certain exceptions) terminated, exchange all or part of the then outstanding and exercisable Rights (other than those held by the Acquiring Person and Affiliates and Associates of the Acquiring Person) for Common Shares (as such term is defined in the Rights Agreement) at an exchange ratio of one Common Share per Right, as adjusted. Immediately upon the action of the Board ordering an exchange of the Rights, the Rights affected by such order will no longer be exercisable and thereafter the only right of the holders of such Rights will be to receive the Common Shares issuable by the Company in exchange for such Rights. This Right Certificate is subject to all of the terms, provisions covenants and conditions restrictions of the Rights Agreement, which terms, provisions covenants and conditions restrictions are hereby incorporated herein by reference and made a part hereof and to which Rights Agreement reference is hereby made for a full description of the rights, limitations of rights, obligations, duties and immunities hereunder of the Rights Agent, the Company and the holders of the Right Certificates, which limitations of rights include the temporary suspension of the exercisability of such Rights for not more than ninety (90) days at the election of the Company and under certain circumstances specified in such Rights Agreement. Copies of the Rights Agreement are on file at the above- mentioned office of the Rights Agent and are also available upon written request to the Company. This Right Certificate, with or without other Right Certificates, upon surrender at the principal office or offices of the Rights Agent designated for such purpose, may be exchanged for another Right Certificate or Right Certificates of like tenor and date evidencing Rights entitling the holder to purchase a like aggregate number of Series B A Shares as the Rights evidenced by the Right Certificate or Right Certificates surrendered shall have entitled such holder to purchase. If the Rights evidenced by this Right Certificate shall be exercised in part, the holder shall be entitled to receive upon surrender hereof another Right Certificate or Right Certificates for the number of whole Rights not exercised. Subject to the provisions of the Rights Agreement, the Rights evidenced by this Certificate may be redeemed at a redemption price of One Tenth of One Cent ($0.010.001) per Right at any time prior to the earlier of (A) the close of business 10 Business Days (as such term in defined in the Rights Agreement) after the Shares Acquisition Date date that a Person becomes an Acquiring Person (as such term is defined in the Rights Agreement) or (B) the Final Expiration Date (as such term is defined in the Rights Agreement), unless the period for redemption is extended as permitted in the Rights Agreement. Thereafter, the Board of Directors of the Company (the "Board") may only redeem the Rights in certain specified circumstances including in connection with certain events not involving an Acquiring Person or an Affiliate or Associate of an Acquiring Person. In addition, the Company's right of redemption may be reinstated if, among other things, an Acquiring Person reduces his beneficial ownership to ten percent (10%) or less of the outstanding Common Shares of the Company in a transaction or series of transactions not involving the Company. Immediately upon the action of the Board ordering redemption of the Rights, the Rights will no longer be exercisable, except where the redemption is made in connection with an event not involving an Acquiring Person or Affiliate or Associate of an Acquiring Person (in which circumstance the effective time of the redemption may be deferred); and, in general, thereafter the only right of the holders of the Rights evidenced hereby will be to receive the Redemption Price. The terms of the Rights evidenced by this Certificate may be supplemented or amended without the approval of any holder of the Rights (or the Common Shares) as set forth in the Rights Agreement. No fractional Series B A Shares will be issued upon the exercise of any Right or Rights evidenced hereby (other than fractions that are integral multiples of one one-hundredth thousandth of a Series B A Share, which may, at the election of the Company, be evidenced by depositary receipts), but in lieu thereof a cash payment will be made as provided in the Rights Agreement. No holder of this Right Certificate, as such, shall be entitled to vote or receive dividends or be deemed for any purpose the holder of Series B A Shares or of any other securities of the Company that may at any time be issuable on the exercise hereof, nor shall anything contained in the Rights Agreement or herein be construed to confer upon the holder hereof, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action, or to receive notice of meetings or other actions affecting stockholders (except as provided in the Rights Agreement), or to receive dividends or subscription rights, or otherwise, until the Right or Rights evidenced by this Right Certificate shall have been exercised as provided in the Rights Agreement. This Right Certificate shall not be valid or obligatory for any purpose until it shall have been countersigned by the Rights Agent. WITNESS the facsimile signatures of the proper officers of the Company. Dated: ___________, 19__ ▇▇▇▇▇▇▇▇'▇, INC. DAISYTEK INTERNATIONAL CORPORATION By________________________________ Name: Title: Attest___________________ Name: Title: (Corporate Seal) Countersigned AMERICAN STOCK TRANSFER & TRUST COMPANY CHASEMELLON SHAREHOLDER SERVICES, LLC as Rights Agent By___________________ [Form of Reverse Side of Right Certificate] FORM OF ASSIGNMENT (To be executed by the registered holder if such holder desires to transfer the Right Certificate.) FOR VALUE RECEIVED __________________________________ hereby sells, assigns and transfers unto _________________________________________________________ ------------------------------------------------------------ (Please print name and address of Transferee) ____________________________________________________________ this Right Certificate, together with all right, title and interest therein, and does hereby irrevocably constitute and appoint __________________ attorney, to transfer the within Right Certificate on the books of the within-named Company, with full power of substitution. Dated: _______________, 19__ ------------------------- Signature Signature Guaranteed: Certificate The undersigned hereby certifies by checking the appropriate boxes that:
Appears in 1 contract
Sources: Rights Agreement (Daisytek International Corporation /De/)
IN TESTIMONY WHEREOF. ▇▇▇▇▇▇▇▇'▇I have hereunto set my hand and official seal at __________________, __________ this ______ day of September 2000. -------------------------- Notary Public EXHIBIT E FORM OF TENANT'S CERTIFICATE See Attached Form ESTOPPEL CERTIFICATE FORM The undersigned, HARBORSIDE OF CLEVELAND LIMITED PARTNERSHIP ("Tenant"), is (a) the tenant under that certain Lease dated as of September ___, 2000 (which, together with all amendments, modifications and supplements thereto, is attached hereto and made a part hereof as Exhibit A and is hereinafter referred to as the "Lease") between Tenant and HHC BEACHWOOD, INC. has caused this Statement (the "Landlord"), for the space known as and by the street address 3800 Park East, Beachwood, Ohio (the "Leased Premises"), and (b) the optionee under that certain Option to be signed under its corporate seal by its Chairman Purchase Agreement dated as of September ___, 2000 (which, together with all amendments, modifications and Chief Executive Officer supplements thereto, is attached hereto and made a part hereof as Exhibit B and is hereinafter referred to as the "Option Agreement"), between Tenant and the Landlord with respect to the Leased Premises. [With the understanding that ________________ ("Purchaser") and its Secretary as of the 23rd day of Septemberlenders, 1998. ▇▇▇▇▇▇▇▇'▇, INC. By: successors and assigns including ________________________________ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Chairman and Chief Executive Officer ATTEST: ------------------------- ▇▇▇▇▇▇ ▇▇▇▇▇ President, Secretary and Chief Operating Officer EXHIBIT B [Form of Right Certificate] Certificate No. R- __________ Rights NOT EXERCISABLE AFTER OCTOBER 5, 2008 OR EARLIER IF REDEEMED OR EXCHANGED BY THE COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT $0.01 PER RIGHT ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS SUCH TERM IS DEFINED IN THE RIGHTS AGREEMENT "Lender") will rely on the representations made herein in connection (AS HEREINAFTER DEFINED)i) AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS REPRESENTED BY THIS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHT CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY BE OR BECOME VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF THE AGREEMENT.]1/ Right Certificate ▇▇▇▇▇▇▇▇'▇, INC. This certifies that , or registered assigns, is the registered owner Purchaser's purchase of the number Building and other property, (ii) the assignment to Purchaser of Rights set forth abovethe Lease, each and (iii) Lender's financing of which entitles the owner thereofpurchase of the Building and other property],1 Tenant hereby represents, subject warrants and certifies to the termsLandlord, provisions [Purchaser and conditions Lender] that, except as otherwise disclosed in writing by Tenant on Schedule I attached hereto, the following statements are true, correct and complete as of the Rights Agreement, dated as of September 23, 1998 (the "Rights Agreement"), between ▇▇▇▇▇▇▇▇'▇, INC., a Delaware corporation (the "Company"), and AMERICAN STOCK TRANSFER & TRUST COMPANY, a New York corporation (the "Rights Agent"), to purchase from the Company at any time after the Separation Date (as such term is defined in the Rights Agreement) and prior to the close of business (5:00 PM New York time) on October 5, 2008 at the office or offices of the Rights Agent designated for such purpose, or its successors as Rights Agent, one one-hundredth of a fully paid, nonassessable share of Series B Preferred Stock, par value $0.01 per share ("Series B Share") of the Company, at a purchase price of Fifteen Dollars ($15) per one one-hundredth of a share (the "Purchase Price"), upon presentation and surrender of this Right Certificate with the Form of Election to Purchase and related Certificate duly executed. The number of rights evidenced by this Right Certificate (and the number of shares that may be purchased upon exercise thereof) set forth above, and the Purchase Price per share set forth above, are the number and Purchase Price as of September 23, 1998 based on the Series B Shares as constituted at such date. Upon the occurrence of a Triggering Event (as such term is defined in the Rights Agreement), if the Rights evidenced by this Right Certificate are beneficially owned by (a) an Acquiring Person or an Affiliate or Associate of any such Acquiring Person (as such terms are defined in the Rights Agreement), (b) a transferee of any such Acquiring Person, Associate or Affiliate (other than a bona fide purchaser for value who has no knowledge that the transferor was an Acquiring Person or an Associate or Affiliate of an Acquiring Person) or (c) under certain circumstances specified in the Rights Agreement, a transferee of a person or entity who, after such transfer, became an Acquiring Person, such Rights shall become null and void and no holder hereof shall have any right with respect to such rights from and after the occurrence of any such Triggering Event. As provided in the Rights Agreement, the Purchase Price and the number and kind of Series B Shares or other securities or other property that may be purchased upon the exercise of the Rights evidenced by this Right Certificate are subject to modification and adjustment upon the happening of certain events. The Board may, at its option, at any time after the right of the Company to redeem the Rights has expired or terminated (with certain exceptions) exchange all or part of the then outstanding and exercisable Rights (other than those held by the Acquiring Person and Affiliates and Associates of the Acquiring Person) for Common Shares (as such term is defined in the Rights Agreement) at an exchange ratio of one Common Share per Right, as adjusted. Immediately upon the action of the Board ordering an exchange of the Rights, the Rights affected by such order will no longer be exercisable and thereafter the only right of the holders of such Rights will be to receive the Common Shares issuable by the Company in exchange for such Rights. This Right Certificate is subject to all of the terms, provisions and conditions of the Rights Agreement, which terms, provisions and conditions are hereby incorporated herein by reference and made a part hereof and to which Rights Agreement reference is hereby made for a full description of the rights, limitations of rights, obligations, duties and immunities hereunder of the Rights Agent, the Company and the holders of the Right Certificates, which limitations of rights include the temporary suspension of the exercisability of such Rights for not more than ninety (90) days at the election of the Company and under certain circumstances specified in such Rights Agreement. Copies of the Rights Agreement are on file at the above- mentioned office of the Rights Agent and are also available upon written request to the Company. This Right Certificate, with or without other Right Certificates, upon surrender at the principal office or offices of the Rights Agent designated for such purpose, may be exchanged for another Right Certificate or Right Certificates of like tenor and date evidencing Rights entitling the holder to purchase a like aggregate number of Series B Shares as the Rights evidenced by the Right Certificate or Right Certificates surrendered shall have entitled such holder to purchase. If the Rights evidenced by this Right Certificate shall be exercised in part, the holder shall be entitled to receive upon surrender hereof another Right Certificate or Right Certificates for the number of whole Rights not exercised. Subject to the provisions of the Rights Agreement, the Rights evidenced by this Certificate may be redeemed at a redemption price of One Cent ($0.01) per Right at any time prior to the earlier of (A) the close of business 10 Business Days (as such term in defined in the Rights Agreement) after the Shares Acquisition Date (as such term is defined in the Rights Agreement) or (B) the Final Expiration Date (as such term is defined in the Rights Agreement), unless the period for redemption is extended as permitted in the Rights Agreement. Thereafter, the Board of Directors of the Company (the "Board") may only redeem the Rights in certain specified circumstances including in connection with certain events not involving an Acquiring Person or an Affiliate or Associate of an Acquiring Person. In addition, the Company's right of redemption may be reinstated if, among other things, an Acquiring Person reduces his beneficial ownership to ten percent (10%) or less of the outstanding Common Shares of the Company in a transaction or series of transactions not involving the Company. Immediately upon the action of the Board ordering redemption of the Rights, the Rights will no longer be exercisable, except where the redemption is made in connection with an event not involving an Acquiring Person or Affiliate or Associate of an Acquiring Person (in which circumstance the effective time of the redemption may be deferred); and, in general, thereafter the only right of the holders of the Rights evidenced hereby will be to receive the Redemption Price. The terms of the Rights evidenced by this Certificate may be supplemented or amended without the approval of any holder of the Rights (or the Common Shares) as set forth in the Rights Agreement. No fractional Series B Shares will be issued upon the exercise of any Right or Rights evidenced hereby (other than fractions that are integral multiples of one one-hundredth of a Series B Share, which may, at the election of the Company, be evidenced by depositary receipts), but in lieu thereof a cash payment will be made as provided in the Rights Agreement. No holder of this Right Certificate, as such, shall be entitled to vote or receive dividends or be deemed for any purpose the holder of Series B Shares or of any other securities of the Company that may at any time be issuable on the exercise hereof, nor shall anything contained in the Rights Agreement or herein be construed to confer upon the holder hereof, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action, or to receive notice of meetings or other actions affecting stockholders (except as provided in the Rights Agreement), or to receive dividends or subscription rights, or otherwise, until the Rights evidenced by this Right Certificate shall have been exercised as provided in the Rights Agreement. This Right Certificate shall not be valid or obligatory for any purpose until it shall have been countersigned by the Rights Agent. WITNESS the facsimile signatures of the proper officers of the Company. Dated: ___________, 19__ ▇▇▇▇▇▇▇▇'▇, INC. By_______________________ Name: Title: Attest___________________ Name: Title: (Corporate Seal) Countersigned AMERICAN STOCK TRANSFER & TRUST COMPANY as Rights Agent By___________________ [Form of Reverse Side of Right Certificate] FORM OF ASSIGNMENT (To be executed by the registered holder if such holder desires to transfer the Right Certificate.) FOR VALUE RECEIVED __________________________________ hereby sells, assigns and transfers unto __________________________ ------------------------------------------------------------ (Please print name and address of Transferee) ____________________________________________________________ this Right Certificate, together with all right, title and interest therein, and does hereby irrevocably constitute and appoint __________________ attorney, to transfer the within Right Certificate on the books of the within-named Company, with full power of substitution. Dated: _______________, 19__ ------------------------- Signature Signature Guaranteed:
Appears in 1 contract
IN TESTIMONY WHEREOF. witness the signatures of the Grantor on this the day and year first above written. GRANTOR: PERRY, H▇▇▇▇▇, ▇▇▇▇▇▇, BREATHITT REGIONAL INDUSTRIAL AUTHORITY, INC. By: E▇ ▇▇▇▇▇▇, Chairman We, PERRY, H▇▇▇▇▇, ▇▇▇▇▇▇, BREATHITT REGIONAL INDUSTRIAL AUTHORITY, INC., by its duly authorized Chairman, E▇ ▇▇▇▇▇▇, Grantor, and AMERICAN WOODMARK CORPORATION, by its duly authorized officer, D▇▇▇ ▇▇▇▇▇▇, Grantee, do hereby swear and/or affirm, pursuant to KRS Chapter 382, that the fair market value of the above stated property is Four Hundred Fifty Thousand Dollars and No Cents($450,000.00). GRANTOR: PERRY, H▇▇▇▇▇, ▇▇▇▇▇▇, BREATHITT REGIONAL INDUSTRIAL AUTHORITY, INC By: E▇ ▇▇▇▇▇▇, Chairman GRANTEE: AMERICAN WOODMARK CORPORATION By: D▇▇▇▇ ▇▇▇▇▇▇ Its: Sr. Vice President STATE OF KENTUCKY ) )ss COUNTY OF Perry ) I hereby certify that the foregoing Deed and Certificate of the Parties was duly subscribed, sworn to and acknowledged before me by E▇ ▇▇▇▇▇▇ as Chairman of the PERRY, H▇▇▇▇▇, ▇▇▇▇▇▇, BREATHITT REGIONAL INDUSTRIAL AUTHORITY, INC., on 12th day of February, 2002. Notary Public My commission expires 11/25/02. STATE OF Virginia ) CITY OF Winchester ) I hereby certify that the foregoing Certificate of the Parties was duly subscribed, sworn to and acknowledged before me by D▇▇▇▇ ▇ ▇▇▇▇▇▇ of AMERICAN WOODMARK CORPORATION, on this 1st day of March, 2002. B▇▇▇▇▇ ▇▇▇▇▇▇ Notary Public My commission expires B▇▇▇▇▇ ▇▇▇▇▇▇ Notary Public, State of Virginia My Commission Expires December 31, 2▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇'▇▇ ) )SS COUNTY OF PERRY ) I, INC. has caused this Statement to be signed under its corporate seal by its Chairman and Chief Executive Officer and its Secretary as Haven King, Clerk of Perry County, do hereby certify that the 23rd foregoing Deed of Conveyance was on the 12th day of SeptemberMarch, 19982002, lodged in my office for record and that it, the foregoing, and this my certificate have been duly recorded in my said office in Deed Book 292, page 127. Witness my hand on this the 12th day of March, 2002. HAVEN KING, CLERK By: B▇▇▇▇▇▇ ▇▇▇ ▇▇▇'▇, INC. By: ________________________________ ▇▇ D.C. This instrument prepared by the law firm of H▇▇▇▇▇, C▇▇▇▇▇▇ & Clemons, Hazard, Kentucky. P▇▇▇ ▇. ▇▇▇▇▇▇▇ Attorney THIS GRANT AGREEMENT (“Agreement”) is made and entered into as of the 13th day of February, 2002 by and among (i) the KENTUCKY ECONOMIC DEVELOPMENT FINANCE AUTHORITY, a governmental agency of the Commonwealth of Kentucky, with an address at 3▇ ▇▇▇▇▇▇▇▇ Chairman and Chief Executive Officer ATTEST: ------------------------- ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ President(“KEDFA”); (ii) PERRY-H▇▇▇▇▇-▇▇▇▇▇▇-BREATHITT AUTHORITY, Secretary INC., a Kentucky a non-profit corporation with a mailing address of 9▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (“Authority”); and Chief Operating Officer EXHIBIT B [Form (iii) AMERICAN WOODMARK CORPORATION, a Virginia corporation with a mailing address of Right Certificate] Certificate No. R- __________ Rights NOT EXERCISABLE AFTER OCTOBER 5, 2008 OR EARLIER IF REDEEMED OR EXCHANGED BY THE COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT $0.01 PER RIGHT ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS SUCH TERM IS DEFINED IN THE RIGHTS AGREEMENT (AS HEREINAFTER DEFINED)) AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS REPRESENTED BY THIS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHT CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY BE OR BECOME VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF THE AGREEMENT.]1/ Right Certificate 3▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇; ▇▇▇▇▇▇▇▇'▇▇, INC. This certifies that , or registered assigns, is the registered owner of the number of Rights set forth above, each of which entitles the owner thereof, subject to the terms, provisions and conditions of the Rights Agreement, dated as of September 23, 1998 (the "Rights Agreement"), between ▇▇▇▇▇▇▇▇'▇, INC., a Delaware corporation (the "Company"), and AMERICAN STOCK TRANSFER & TRUST COMPANY, a New York corporation (the "Rights Agent"), to purchase from the Company at any time after the Separation Date (as such term is defined in the Rights Agreement) and prior to the close of business (5:00 PM New York time) on October 5, 2008 at the office or offices of the Rights Agent designated for such purpose, or its successors as Rights Agent, one one-hundredth of a fully paid, nonassessable share of Series B Preferred Stock, par value $0.01 per share ("Series B Share") of the Company, at a purchase price of Fifteen Dollars ($15) per one one-hundredth of a share (the "Purchase Price"), upon presentation and surrender of this Right Certificate with the Form of Election to Purchase and related Certificate duly executed. The number of rights evidenced by this Right Certificate (and the number of shares that may be purchased upon exercise thereof) set forth above, and the Purchase Price per share set forth above, are the number and Purchase Price as of September 23, 1998 based on the Series B Shares as constituted at such date. Upon the occurrence of a Triggering Event (as such term is defined in the Rights Agreement), if the Rights evidenced by this Right Certificate are beneficially owned by (a) an Acquiring Person or an Affiliate or Associate of any such Acquiring Person (as such terms are defined in the Rights Agreement), (b) a transferee of any such Acquiring Person, Associate or Affiliate (other than a bona fide purchaser for value who has no knowledge that the transferor was an Acquiring Person or an Associate or Affiliate of an Acquiring Person) or (c) under certain circumstances specified in the Rights Agreement, a transferee of a person or entity who, after such transfer, became an Acquiring Person, such Rights shall become null and void and no holder hereof shall have any right with respect to such rights from and after the occurrence of any such Triggering Event. As provided in the Rights Agreement, the Purchase Price and the number and kind of Series B Shares or other securities or other property that may be purchased upon the exercise of the Rights evidenced by this Right Certificate are subject to modification and adjustment upon the happening of certain events. The Board may, at its option, at any time after the right of the Company to redeem the Rights has expired or terminated (with certain exceptions) exchange all or part of the then outstanding and exercisable Rights (other than those held by the Acquiring Person and Affiliates and Associates of the Acquiring Person) for Common Shares (as such term is defined in the Rights Agreement) at an exchange ratio of one Common Share per Right, as adjusted. Immediately upon the action of the Board ordering an exchange of the Rights, the Rights affected by such order will no longer be exercisable and thereafter the only right of the holders of such Rights will be to receive the Common Shares issuable by the Company in exchange for such Rights. This Right Certificate is subject to all of the terms, provisions and conditions of the Rights Agreement, which terms, provisions and conditions are hereby incorporated herein by reference and made a part hereof and to which Rights Agreement reference is hereby made for a full description of the rights, limitations of rights, obligations, duties and immunities hereunder of the Rights Agent, the Company and the holders of the Right Certificates, which limitations of rights include the temporary suspension of the exercisability of such Rights for not more than ninety (90) days at the election of the Company and under certain circumstances specified in such Rights Agreement. Copies of the Rights Agreement are on file at the above- mentioned office of the Rights Agent and are also available upon written request to the Company. This Right Certificate, with or without other Right Certificates, upon surrender at the principal office or offices of the Rights Agent designated for such purpose, may be exchanged for another Right Certificate or Right Certificates of like tenor and date evidencing Rights entitling the holder to purchase a like aggregate number of Series B Shares as the Rights evidenced by the Right Certificate or Right Certificates surrendered shall have entitled such holder to purchase. If the Rights evidenced by this Right Certificate shall be exercised in part, the holder shall be entitled to receive upon surrender hereof another Right Certificate or Right Certificates for the number of whole Rights not exercised. Subject to the provisions of the Rights Agreement, the Rights evidenced by this Certificate may be redeemed at a redemption price of One Cent ($0.01) per Right at any time prior to the earlier of (A) the close of business 10 Business Days (as such term in defined in the Rights Agreement) after the Shares Acquisition Date (as such term is defined in the Rights Agreement) or (B) the Final Expiration Date (as such term is defined in the Rights Agreement), unless the period for redemption is extended as permitted in the Rights Agreement. Thereafter, the Board of Directors of the Company (the "Board") may only redeem the Rights in certain specified circumstances including in connection with certain events not involving an Acquiring Person or an Affiliate or Associate of an Acquiring Person. In addition, the Company's right of redemption may be reinstated if, among other things, an Acquiring Person reduces his beneficial ownership to ten percent (10%) or less of the outstanding Common Shares of the Company in a transaction or series of transactions not involving the Company. Immediately upon the action of the Board ordering redemption of the Rights, the Rights will no longer be exercisable, except where the redemption is made in connection with an event not involving an Acquiring Person or Affiliate or Associate of an Acquiring Person (in which circumstance the effective time of the redemption may be deferred); and, in general, thereafter the only right of the holders of the Rights evidenced hereby will be to receive the Redemption Price. The terms of the Rights evidenced by this Certificate may be supplemented or amended without the approval of any holder of the Rights (or the Common Shares) as set forth in the Rights Agreement. No fractional Series B Shares will be issued upon the exercise of any Right or Rights evidenced hereby (other than fractions that are integral multiples of one one-hundredth of a Series B Share, which may, at the election of the Company, be evidenced by depositary receipts), but in lieu thereof a cash payment will be made as provided in the Rights Agreement. No holder of this Right Certificate, as such, shall be entitled to vote or receive dividends or be deemed for any purpose the holder of Series B Shares or of any other securities of the Company that may at any time be issuable on the exercise hereof, nor shall anything contained in the Rights Agreement or herein be construed to confer upon the holder hereof, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action, or to receive notice of meetings or other actions affecting stockholders (except as provided in the Rights Agreement), or to receive dividends or subscription rights, or otherwise, until the Rights evidenced by this Right Certificate shall have been exercised as provided in the Rights Agreement. This Right Certificate shall not be valid or obligatory for any purpose until it shall have been countersigned by the Rights Agent. WITNESS the facsimile signatures of the proper officers of the Company. Dated: ___________, 19__ ▇ ▇▇▇▇▇▇▇▇'▇, INC. By_______________________ Name: Title: Attest___________________ Name: Title: ▇ (Corporate Seal) Countersigned AMERICAN STOCK TRANSFER & TRUST COMPANY as Rights Agent By___________________ [Form of Reverse Side of Right Certificate] FORM OF ASSIGNMENT (To be executed by the registered holder if such holder desires to transfer the Right Certificate“Company”).) FOR VALUE RECEIVED __________________________________ hereby sells, assigns and transfers unto __________________________ ------------------------------------------------------------ (Please print name and address of Transferee) ____________________________________________________________ this Right Certificate, together with all right, title and interest therein, and does hereby irrevocably constitute and appoint __________________ attorney, to transfer the within Right Certificate on the books of the within-named Company, with full power of substitution. Dated: _______________, 19__ ------------------------- Signature Signature Guaranteed:
Appears in 1 contract
IN TESTIMONY WHEREOF. ▇▇▇▇▇▇▇▇'▇, INC. has caused I have subscribed my name and affixed my official seal this Statement to be signed under its corporate seal by its Chairman and Chief Executive Officer and its Secretary as of the 23rd day of September, 1998. ▇▇▇▇▇▇▇▇'▇, INC. By: ________________________________ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Chairman and Chief Executive Officer ATTEST: ------------------------- ▇▇▇▇▇▇ ▇▇▇▇▇ President, Secretary and Chief Operating Officer EXHIBIT B [Form day of Right Certificate] Certificate No. R- __________ Rights NOT EXERCISABLE AFTER OCTOBER 5, 2008 OR EARLIER IF REDEEMED OR EXCHANGED BY THE COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT $0.01 PER RIGHT ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS SUCH TERM IS DEFINED IN THE RIGHTS AGREEMENT (AS HEREINAFTER DEFINED)) AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS REPRESENTED BY THIS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHT CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY BE OR BECOME VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF THE AGREEMENT.]1/ Right Certificate ▇▇▇▇▇▇▇▇'▇, INC. This certifies that , or registered assigns, is the registered owner of the number of Rights set forth above, each of which entitles the owner thereof, subject to the terms, provisions and conditions of the Rights Agreement, dated as of September 23, 1998 (the "Rights Agreement"), between ▇▇▇▇▇▇▇▇'▇, INC., a Delaware corporation (the "Company"), and AMERICAN STOCK TRANSFER & TRUST COMPANY, a New York corporation (the "Rights Agent"), to purchase from the Company at any time after the Separation Date (as such term is defined in the Rights Agreement) and prior to the close of business (5:00 PM New York time) on October 5, 2008 at the office or offices of the Rights Agent designated for such purpose, or its successors as Rights Agent, one one-hundredth of a fully paid, nonassessable share of Series B Preferred Stock, par value $0.01 per share ("Series B Share") of the Company, at a purchase price of Fifteen Dollars ($15) per one one-hundredth of a share (the "Purchase Price"), upon presentation and surrender of this Right Certificate with the Form of Election to Purchase and related Certificate duly executed. The number of rights evidenced by this Right Certificate (and the number of shares that may be purchased upon exercise thereof) set forth above, and the Purchase Price per share set forth above, are the number and Purchase Price as of September 23, 1998 based on the Series B Shares as constituted at such date. Upon the occurrence of a Triggering Event (as such term is defined in the Rights Agreement), if the Rights evidenced by this Right Certificate are beneficially owned by (a) an Acquiring Person or an Affiliate or Associate of any such Acquiring Person (as such terms are defined in the Rights Agreement), (b) a transferee of any such Acquiring Person, Associate or Affiliate (other than a bona fide purchaser for value who has no knowledge that the transferor was an Acquiring Person or an Associate or Affiliate of an Acquiring Person) or (c) under certain circumstances specified in the Rights Agreement, a transferee of a person or entity who, after such transfer, became an Acquiring Person, such Rights shall become null and void and no holder hereof shall have any right with respect to such rights from and after the occurrence of any such Triggering Event. As provided in the Rights Agreement, the Purchase Price and the number and kind of Series B Shares or other securities or other property that may be purchased upon the exercise of the Rights evidenced by this Right Certificate are subject to modification and adjustment upon the happening of certain events. The Board may, at its option, at any time after the right of the Company to redeem the Rights has expired or terminated (with certain exceptions) exchange all or part of the then outstanding and exercisable Rights (other than those held by the Acquiring Person and Affiliates and Associates of the Acquiring Person) for Common Shares (as such term is defined in the Rights Agreement) at an exchange ratio of one Common Share per Right, as adjusted. Immediately upon the action of the Board ordering an exchange of the Rights, the Rights affected by such order will no longer be exercisable and thereafter the only right of the holders of such Rights will be to receive the Common Shares issuable by the Company in exchange for such Rights. This Right Certificate is subject to all of the terms, provisions and conditions of the Rights Agreement, which terms, provisions and conditions are hereby incorporated herein by reference and made a part hereof and to which Rights Agreement reference is hereby made for a full description of the rights, limitations of rights, obligations, duties and immunities hereunder of the Rights Agent, the Company and the holders of the Right Certificates, which limitations of rights include the temporary suspension of the exercisability of such Rights for not more than ninety (90) days at the election of the Company and under certain circumstances specified in such Rights Agreement. Copies of the Rights Agreement are on file at the above- mentioned office of the Rights Agent and are also available upon written request to the Company. This Right Certificate, with or without other Right Certificates, upon surrender at the principal office or offices of the Rights Agent designated for such purpose, may be exchanged for another Right Certificate or Right Certificates of like tenor and date evidencing Rights entitling the holder to purchase a like aggregate number of Series B Shares as the Rights evidenced by the Right Certificate or Right Certificates surrendered shall have entitled such holder to purchase. If the Rights evidenced by this Right Certificate shall be exercised in part, the holder shall be entitled to receive upon surrender hereof another Right Certificate or Right Certificates for the number of whole Rights not exercised. Subject to the provisions of the Rights Agreement, the Rights evidenced by this Certificate may be redeemed at a redemption price of One Cent ($0.01) per Right at any time prior to the earlier of (A) the close of business 10 Business Days (as such term in defined in the Rights Agreement) after the Shares Acquisition Date (as such term is defined in the Rights Agreement) or (B) the Final Expiration Date (as such term is defined in the Rights Agreement), unless the period for redemption is extended as permitted in the Rights Agreement. Thereafter, the Board of Directors of the Company (the "Board") may only redeem the Rights in certain specified circumstances including in connection with certain events not involving an Acquiring Person or an Affiliate or Associate of an Acquiring Person. In addition, the Company's right of redemption may be reinstated if, among other things, an Acquiring Person reduces his beneficial ownership to ten percent (10%) or less of the outstanding Common Shares of the Company in a transaction or series of transactions not involving the Company. Immediately upon the action of the Board ordering redemption of the Rights, the Rights will no longer be exercisable, except where the redemption is made in connection with an event not involving an Acquiring Person or Affiliate or Associate of an Acquiring Person (in which circumstance the effective time of the redemption may be deferred); and, in general, thereafter the only right of the holders of the Rights evidenced hereby will be to receive the Redemption Price. The terms of the Rights evidenced by this Certificate may be supplemented or amended without the approval of any holder of the Rights (or the Common Shares) as set forth in the Rights Agreement. No fractional Series B Shares will be issued upon the exercise of any Right or Rights evidenced hereby (other than fractions that are integral multiples of one one-hundredth of a Series B Share, which may, at the election of the Company, be evidenced by depositary receipts), but in lieu thereof a cash payment will be made as provided in the Rights Agreement. No holder of this Right Certificate, as such, shall be entitled to vote or receive dividends or be deemed for any purpose the holder of Series B Shares or of any other securities of the Company that may at any time be issuable on the exercise hereof, nor shall anything contained in the Rights Agreement or herein be construed to confer upon the holder hereof, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action, or to receive notice of meetings or other actions affecting stockholders (except as provided in the Rights Agreement), or to receive dividends or subscription rights, or otherwise, until the Rights evidenced by this Right Certificate shall have been exercised as provided in the Rights Agreement. This Right Certificate shall not be valid or obligatory for any purpose until it shall have been countersigned by the Rights Agent. WITNESS the facsimile signatures of the proper officers of the Company. Dated: ___________, 19__ ▇▇▇▇▇▇▇▇'▇, INC. By20_______________________ Name: Title: Attest___________________ Name: Title: (Corporate Seal) Countersigned AMERICAN STOCK TRANSFER & TRUST COMPANY as Rights Agent By___________________ [Form of Reverse Side of Right Certificate] FORM OF ASSIGNMENT (To be executed by the registered holder if such holder desires to transfer the Right Certificate.) FOR VALUE RECEIVED __________________________________ hereby sells, assigns and transfers unto __________________________ ------------------------------------------------------------ (Please print name and address of Transferee) __________________. __________________________________________ this Right Certificate, together with all right, title and interest therein, and does hereby irrevocably constitute and appoint Notary Public Print Name: _______________________________ attorney, to transfer the within Right Certificate on the books of the within-named Company, with full power of substitution. DatedMy Commission Expires: _______________, 19_____ ------------------------- Signature Signature Guaranteed:Prepared by and return to: KNOW ALL PERSONS BY THESE PRESENTS, that the SUSTAINABLE ENERGY UTILITY, INC., a non-profit corporation created by Delaware statute, d/b/a Energize Delaware (“Energize Delaware”), as duly authorized pursuant to 29 Del. C. § 8061 (d)(7)b., for One Dollar ($1.00) and other valuable consideration paid to Energize Delaware on behalf of [LENDER NAME] (“Assignee”), the receipt of which is hereby acknowledged, hereby quit-claims, grants, bargains, sells, conveys, assigns, transfers and sets over unto Assignee, without warranty covenants and without recourse, Energize Delaware’s right, title and interest in and to that certain benefit assessment lien levied by __________________ County, a body corporate and politic of the State of Delaware (the “County”) pursuant to 29 Del. C. § 8061(d)(6) on behalf of Assignee, on property owned on the date hereof in whole or in part by [PROPERTY OWNER] and as described on Schedule I, and also commonly referred to as [ADDRESS], attached hereto and made a part hereof (the “Lien”), to have and to hold the same unto the said Assignee, its successor and assigns forever. This Assignment includes without limitation all of the rights or remedies, including any powers of enforcement or collection, to which the County, by virtue of its status as a local governing body of the State of Delaware, is entitled or empowered to exercise under applicable laws of the State of Delaware; so that Assignee shall have the same powers and rights as the County and Energize Delaware has to enforce and collect upon the Lien. This Assignment is made, given and executed pursuant to the authority granted to Energize Delaware in 29 Del. C. § 8061, which enacts the Delaware Voluntary Clean Energy Financing Program Based on Property Assessments (▇-▇▇▇▇) or Other Local Assessments (the “▇-▇▇▇▇ Act” or “Act”), and as further enacted by [Kent/Sussex County Resolution No. __________] [New Castle County Resolution No. 19-_________________](collectively, the “PACE Authorization”), and is solely limited to the purposes set forth in the PACE Authorization. This Assignment by Energize Delaware is absolute and irrevocable and Energize Delaware shall retain no interest, reversionary or otherwise, in the lien.
Appears in 1 contract
Sources: Assessment and Financing Agreement
IN TESTIMONY WHEREOF. ▇▇▇▇▇▇▇▇'▇the Board of Directors of NELNET EDUCATION LOAN FUNDING, INC. has caused this Statement note to be signed under its corporate seal by its Chairman and Chief Executive Officer and its Secretary as of the 23rd day of September, 1998. ▇▇▇▇▇▇▇▇'▇, INC. By: ________________________________ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Chairman and Chief Executive Officer ATTEST: ------------------------- ▇▇▇▇▇▇ ▇▇▇▇▇ President, Secretary and Chief Operating Officer EXHIBIT B [Form of Right Certificate] Certificate No. R- __________ Rights NOT EXERCISABLE AFTER OCTOBER 5, 2008 OR EARLIER IF REDEEMED OR EXCHANGED BY THE COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT $0.01 PER RIGHT ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS SUCH TERM IS DEFINED IN THE RIGHTS AGREEMENT (AS HEREINAFTER DEFINED)) AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS REPRESENTED BY THIS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHT CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY BE OR BECOME VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF THE AGREEMENT.]1/ Right Certificate ▇▇▇▇▇▇▇▇'▇, INC. This certifies that , or registered assigns, is the registered owner of the number of Rights set forth above, each of which entitles the owner thereof, subject to the terms, provisions and conditions of the Rights Agreement, dated as of September 23, 1998 (the "Rights Agreement"), between ▇▇▇▇▇▇▇▇'▇, INC., a Delaware corporation (the "Company"), and AMERICAN STOCK TRANSFER & TRUST COMPANY, a New York corporation (the "Rights Agent"), to purchase from the Company at any time after the Separation Date (as such term is defined in the Rights Agreement) and prior to the close of business (5:00 PM New York time) on October 5, 2008 at the office or offices of the Rights Agent designated for such purpose, or its successors as Rights Agent, one one-hundredth of a fully paid, nonassessable share of Series B Preferred Stock, par value $0.01 per share ("Series B Share") of the Company, at a purchase price of Fifteen Dollars ($15) per one one-hundredth of a share (the "Purchase Price"), upon presentation and surrender of this Right Certificate with the Form of Election to Purchase and related Certificate duly executed. The number of rights evidenced by this Right Certificate (and the number of shares that may be purchased upon exercise thereof) set forth above, and the Purchase Price per share set forth above, are the number and Purchase Price as of September 23, 1998 based on the Series B Shares as constituted at such date. Upon the occurrence of a Triggering Event (as such term is defined in the Rights Agreement), if the Rights evidenced by this Right Certificate are beneficially owned by (a) an Acquiring Person or an Affiliate or Associate of any such Acquiring Person (as such terms are defined in the Rights Agreement), (b) a transferee of any such Acquiring Person, Associate or Affiliate (other than a bona fide purchaser for value who has no knowledge that the transferor was an Acquiring Person or an Associate or Affiliate of an Acquiring Person) or (c) under certain circumstances specified in the Rights Agreement, a transferee of a person or entity who, after such transfer, became an Acquiring Person, such Rights shall become null and void and no holder hereof shall have any right with respect to such rights from and after the occurrence of any such Triggering Event. As provided in the Rights Agreement, the Purchase Price and the number and kind of Series B Shares or other securities or other property that may be purchased upon the exercise of the Rights evidenced by this Right Certificate are subject to modification and adjustment upon the happening of certain events. The Board may, at its option, at any time after the right of the Company to redeem the Rights has expired or terminated (with certain exceptions) exchange all or part of the then outstanding and exercisable Rights (other than those held executed by the Acquiring Person and Affiliates and Associates of the Acquiring Person) for Common Shares (as such term is defined in the Rights Agreement) at an exchange ratio of one Common Share per Right, as adjusted. Immediately upon the action of the Board ordering an exchange of the Rights, the Rights affected by such order will no longer be exercisable and thereafter the only right of the holders of such Rights will be to receive the Common Shares issuable by the Company in exchange for such Rights. This Right Certificate is subject to all of the terms, provisions and conditions of the Rights Agreement, which terms, provisions and conditions are hereby incorporated herein by reference and made a part hereof and to which Rights Agreement reference is hereby made for a full description of the rights, limitations of rights, obligations, duties and immunities hereunder of the Rights Agent, the Company and the holders of the Right Certificates, which limitations of rights include the temporary suspension of the exercisability of such Rights for not more than ninety (90) days at the election of the Company and under certain circumstances specified in such Rights Agreement. Copies of the Rights Agreement are on file at the above- mentioned office of the Rights Agent and are also available upon written request to the Company. This Right Certificate, with manual or without other Right Certificates, upon surrender at the principal office or offices of the Rights Agent designated for such purpose, may be exchanged for another Right Certificate or Right Certificates of like tenor and date evidencing Rights entitling the holder to purchase a like aggregate number of Series B Shares as the Rights evidenced by the Right Certificate or Right Certificates surrendered shall have entitled such holder to purchase. If the Rights evidenced by this Right Certificate shall be exercised in part, the holder shall be entitled to receive upon surrender hereof another Right Certificate or Right Certificates for the number of whole Rights not exercised. Subject to the provisions of the Rights Agreement, the Rights evidenced by this Certificate may be redeemed at a redemption price of One Cent ($0.01) per Right at any time prior to the earlier of (A) the close of business 10 Business Days (as such term in defined in the Rights Agreement) after the Shares Acquisition Date (as such term is defined in the Rights Agreement) or (B) the Final Expiration Date (as such term is defined in the Rights Agreement), unless the period for redemption is extended as permitted in the Rights Agreement. Thereafter, the Board of Directors of the Company (the "Board") may only redeem the Rights in certain specified circumstances including in connection with certain events not involving an Acquiring Person or an Affiliate or Associate of an Acquiring Person. In addition, the Company's right of redemption may be reinstated if, among other things, an Acquiring Person reduces his beneficial ownership to ten percent (10%) or less of the outstanding Common Shares of the Company in a transaction or series of transactions not involving the Company. Immediately upon the action of the Board ordering redemption of the Rights, the Rights will no longer be exercisable, except where the redemption is made in connection with an event not involving an Acquiring Person or Affiliate or Associate of an Acquiring Person (in which circumstance the effective time of the redemption may be deferred); and, in general, thereafter the only right of the holders of the Rights evidenced hereby will be to receive the Redemption Price. The terms of the Rights evidenced by this Certificate may be supplemented or amended without the approval of any holder of the Rights (or the Common Shares) as set forth in the Rights Agreement. No fractional Series B Shares will be issued upon the exercise of any Right or Rights evidenced hereby (other than fractions that are integral multiples of one one-hundredth of a Series B Share, which may, at the election of the Company, be evidenced by depositary receipts), but in lieu thereof a cash payment will be made as provided in the Rights Agreement. No holder of this Right Certificate, as such, shall be entitled to vote or receive dividends or be deemed for any purpose the holder of Series B Shares or of any other securities of the Company that may at any time be issuable on the exercise hereof, nor shall anything contained in the Rights Agreement or herein be construed to confer upon the holder hereof, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action, or to receive notice of meetings or other actions affecting stockholders (except as provided in the Rights Agreement), or to receive dividends or subscription rights, or otherwise, until the Rights evidenced by this Right Certificate shall have been exercised as provided in the Rights Agreement. This Right Certificate shall not be valid or obligatory for any purpose until it shall have been countersigned by the Rights Agent. WITNESS the facsimile signatures of the proper officers President and Secretary of the CompanyIssuer all as of the Original Issue Date. Dated: ___________, 19__ ▇▇▇▇▇▇▇▇'▇NELNET EDUCATION LOAN FUNDING, INC. By_______________________ NameBy --------------------------------------- President By --------------------------------------- Secretary CERTIFICATE OF AUTHENTICATION This note is one of the Class A-[1][2][3][4] Notes designated therein and described in the within-mentioned Indenture. WELLS FARGO BANK, NATIONAL ASSOCIATION, as Indenture Trustee By ---------------------------------------- Authorized Signatory Authentication Date: Title: Attest___________________ Name: Title: (Corporate Seal) Countersigned AMERICAN STOCK TRANSFER & TRUST COMPANY as Rights Agent By___________________ [Form of Reverse Side of Right Certificate] FORM OF ASSIGNMENT (To be executed by the registered holder if such holder desires to transfer the Right Certificate.) FOR VALUE RECEIVED __________________________________ RECEIVED, the undersigned hereby sells, assigns assigns, and transfers unto __________ (Social Security or other identifying number _________________ ------------------------------------------------------------ (Please print name ) the within note and address of Transferee) __________________________________________________all rights thereunder and hereby irrevocably appoints __________ this Right Certificate, together with all right, title and interest therein, and does hereby irrevocably constitute and appoint __________________ attorney, attorney to transfer the within Right Certificate note on the books of the within-named Companykept for registration thereof, with full power of substitutionsubstitution in the premises. Dated: _______________SIGNED: -------------------- ------------------------------------ NOTICE: The signature on this Assignment must correspond with the name of the Registered Owner as it appears on the face of the within note in every particular. Signature Guaranteed by: ------------------------------------ Signature(s) must be guaranteed by an eligible guarantor institution pursuant to Securities and Exchange Commission Rule 17Ad-15 that is a participant in a signature guarantor program recognized by the Indenture Trustee EXHIBIT B FORM OF RESET RATE NOTES THIS CLASS A-5a NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, 19AS AMENDED (THE "SECURITIES ACT"), ANY UNITED STATES STATE SECURITIES OR "BLUE SKY" LAWS OR ANY SECURITIES LAWS OF ANY OTHER JURISDICTION, AND, AS A MATTER OF U.S. LAW, MAY NOT BE OFFERED OR SOLD IN VIOLATION OF THE SECURITIES ACT OR SUCH OTHER LAWS. THIS NOTE MAY BE TRANSFERRED ONLY IN MINIMUM DENOMINATIONS OF NOT LESS THAN $5,000 AND ANY INTEGRAL MULTIPLE OF $1,000 IN EXCESS THEREOF. THE HOLDER HEREOF, BY PURCHASING OR ACCEPTING THIS CLASS A-5a NOTE IS HEREBY DEEMED TO HAVE AGREED FOR THE BENEFIT OF THE ISSUER AND THE INITIAL PURCHASERS THAT IT WILL RESELL, PLEDGE OR OTHERWISE TRANSFER THIS NOTE, AS A MATTER OF U.S. LAW, ONLY (A)(1) SO LONG AS THIS NOTE IS ELIGIBLE FOR RESALE, PURSUANT TO RULE 144A PROMULGATED UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, AS DEFINED IN RULE 144A (A "QUALIFIED INSTITUTIONAL BUYER"), THAT IS ACQUIRING THIS CLASS A-5a NOTE FOR ITS OWN ACCOUNT OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS MUST ALSO BE QUALIFIED INSTITUTIONAL BUYERS) TO WHOM NOTICE IS GIVEN THAT THE RESALE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) TO A PERSON WHO IS NOT A U.S. PERSON (AS DEFINED IN REGULATION S PROMULGATED UNDER THE SECURITIES ACT ) OUTSIDE THE UNITED STATES OF AMERICA ACQUIRING THIS CLASS A-5a NOTE IN ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION S PROMULGATED UNDER THE SECURITIES ACT OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY UNITED STATES STATE SECURITIES OR "BLUE SKY" LAWS OR ANY SECURITIES LAWS OF ANY OTHER JURISDICTION. UPON ACQUISITION OR TRANSFER OF A CLASS A-5a NOTE OR A BENEFICIAL INTEREST IN A CLASS A-5a NOTE, AS THE CASE MAY BE, BY, FOR OR WITH THE ASSETS OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT (A "PLAN"), SUCH CLASS A-5a NOTE OWNER SHALL BE DEEMED TO HAVE REPRESENTED THAT SUCH ACQUISITION OR PURCHASE WILL NOT CONSTITUTE OR OTHERWISE RESULT IN: (I) IN THE CASE OF A PLAN SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A NON-EXEMPT PROHIBITED TRANSACTION IN VIOLATION OF SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE WHICH IS NOT COVERED BY A CLASS OR OTHER APPLICABLE EXEMPTION AND (II) IN THE CASE OF A PLAN SUBJECT TO A SUBSTANTIALLY SIMILAR FEDERAL, STATE, LOCAL OR FOREIGN LAW ("SIMILAR LAW"), A NON-EXEMPT VIOLATION OF SUCH SUBSTANTIALLY SIMILAR LAW. ANY TRANSFER FOUND TO HAVE BEEN MADE IN VIOLATION OF SUCH DEEMED REPRESENTATION SHALL BE NULL AND VOID AND OF NO EFFECT. THIS CLASS A-5a NOTE AND RELATED DOCUMENTATION MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME TO MODIFY THE RESTRICTIONS ON AND PROCEDURES UNDERTAKEN OR REPRESENTED BY THE HOLDER, FOR RESALES AND OTHER TRANSFERS OF THIS CLASS A-5a NOTE, TO REFLECT ANY CHANGE IN APPLICABLE LAWS OR REGULATIONS (OR THE INTERPRETATION THEREOF) OR IN PRACTICES RELATING TO RESALES OR OTHER TRANSFERS OF RESTRICTED SECURITIES GENERALLY. THE HOLDER OF THIS NOTE AND ANY BENEFICIAL OWNER OF ANY INTEREST THEREIN SHALL BE DEEMED, BY ITS ACCEPTANCE OR PURCHASE HEREOF, TO HAVE AGREED TO ANY SUCH AMENDMENT OR SUPPLEMENT (EACH OF WHICH SHALL BE CONCLUSIVE AND BINDING ON THE HOLDER HEREOF AND ALL FUTURE HOLDERS OF THIS CLASS A-5a NOTE AND ANY CLASS A-5a NOTE ISSUED IN EXCHANGE OR SUBSTITUTION HEREFOR, WHETHER OR NOT ANY NOTATION THEREOF IS MADE HEREON) AND AGREES TO TRANSFER THIS CLASS A-5a NOTE ONLY IN ACCORDANCE WITH ANY SUCH AMENDMENT OR SUPPLEMENT IN ACCORDANCE WITH APPLICABLE LAW IN EFFECT AT THE DATE OF SUCH TRANSFER. EXCEPT AS OTHERWISE PROVIDED IN THE INDENTURE, THIS GLOBAL NOTE MAY BE TRANSFERRED, IN WHOLE BUT NOT IN PART, ONLY TO ANOTHER NOMINEE OF THE SECURITIES DEPOSITORY OR TO A SUCCESSOR SECURITIES DEPOSITORY OR TO A NOMINEE OF A SUCCESSOR SECURITIES DEPOSITORY NELNET EDUCATION LOAN FUNDING, INC. STUDENT LOAN ASSET-BACKED NOTE SENIOR CLASS 2004-2A-5A RESET RATE NOTES REGISTERED NO. R-__ ------------------------- Signature Signature Guaranteed:REGISTERED $200,000,000 MATURITY DATE INTEREST RATE ORIGINAL ISSUE CUSIP NO. ISIN NO. DATE Quarterly Distribution Reset Rate April 29, 2004 Date in February, 2039 PRINCIPAL SUM: **TWO HUNDRED MILLION AND 00/100 DOLLARS** REGISTERED OWNER: **CEDE & CO.** NELNET EDUCATION LOAN FUNDING, INC., a corporation organized under the corporation laws of the State of Nebraska (the "Issuer," which term includes any successor corporation under the Indenture of Trust, dated as of April 1, 2004 (the "Indenture"), among the Issuer, Wells Fargo Bank, National Association, as eligible lender trustee, a▇▇ ▇▇lls Fargo Bank, National Association, as trustee (the "Indenture Tr▇▇▇▇▇," which term includes any successor trustee under the Indenture)) for value received, hereby promises to pay to the Registered Owner (stated above) or registered assigns, the Principal Sum hereof (payable on each Distribution Date in an amount equal to the result obtained by multiplying (i) a fraction the numerator of which is the Principal Sum hereof (as modified by Annex 2 attached hereto) and denominator of which is $200,000,000 by (ii) the aggregate amount, if any, payable on the Class A-5a Notes on such Quarterly Distribution Date in accordance with the Indenture), but solely from the revenues and receipts hereinafter specified and not otherwise, on the Maturity Date specified above (subject to the right of prior redemption hereinafter described), at the designated corporate trust office of the Indenture Trustee, as paying agent, trustee, authenticating agent and registrar for the Series 2004-2 Notes, or a duly appointed successor paying agent, and to pay interest in arrears on said Principal Sum, but solely from the revenues and receipts hereinafter specified and not otherwise, to the Registered Owner hereof from the most recent Quarterly Distribution Date to which interest has been paid hereon, until the payment of said principal sum in full. Any capitalized words and terms used as defined words and terms in this note and not otherwise defined herein shall have the meanings given them in the Indenture. The Issuer shall pay interest on this note at the rate set forth in Annex 1, on each Quarterly Distribution Date until the principal of this note is paid or made available for payment, on the principal amount of this note outstanding on the preceding Quarterly Distribution Date (after giving effect to all payments of principal made on the preceding Quarterly Distribution Date). Interest on this note shall accrue from and including the preceding Quarterly Distribution Date (or, in the case of the first Accrual Period, the Closing Date) to but excluding the following Quarterly Distribution Date (each an "Accrual Period") as set forth in Annex 1. The principal of and interest on this note are payable in lawful money of the United States of America. If the specified date for any payment of principal or interest accrued to such specified date shall be a day other than a Business Day then such payment may be made on the next succeeding Business Day, with the same force and effect as if made on the specified date for such payment without additional interest.
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Sources: Indenture of Trust (Nelnet Education Loan Funding Inc)