CHINDEX INTERNATIONAL, INC. and AMERICAN STOCK TRANSFER &TRUST COMPANY Rights Agent Rights Agreement Dated as of June 7, 2007
CHINDEX
INTERNATIONAL, INC.
and
AMERICAN
STOCK TRANSFER &TRUST COMPANY
Rights
Agent
_____________________
Dated
as
of June 7, 2007
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Section
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5
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5
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7
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7
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8
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10
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18
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18
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21
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21
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16. Rights
of Action
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22
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23
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▇▇
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24
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24
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25
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i
Table
of Contents
(continued)
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Section
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Page
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26
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27
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24. Redemption
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28
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25. Exchange
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28
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29
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27. Notices
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30
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31
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29. Successors
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31
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31
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32
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32. Severability
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32
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33. Governing
Law
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32
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34. Counterparts
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32
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32
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Exhibit
A -- Form of Certificate of
Designations
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A-1
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Exhibit
B -- Form of Right Certificate
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B-1
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Exhibit
C -- Form of Summary of Rights
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C-1
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RIGHTS
AGREEMENT, dated as of June 7, 2007 (the “Agreement”), between Cindex
International, Inc., a Delaware corporation (the “Company”), and American
Stock Transfer & Trust Company, as Rights Agent (the “Rights
Agent”).
WHEREAS,
the Board of Directors has authorized and declared a dividend of (i) one Right
(as such term is hereinafter defined) for each Common Share (as such term is
hereinafter defined) outstanding as of the Close of Business (as such term
is
hereinafter defined) on June 14, 2007 (the “Record Date”) and (ii) one
Right for each Class B Common Share (as such term is hereinafter defined)
outstanding as of the Close of Business on the Record Date, and has authorized
the issuance of one Right with respect to each Common Share, and one Right
with
respect to each Class B Common Share, that shall become outstanding between
the
Record Date and the earliest of the Distribution Date, the Redemption Date,
the
Exchange Date and the Final Expiration Date (as such terms are hereinafter
defined), each Right representing the right to purchase one one-hundredth of
a
share of Series A Junior Participating Preferred Stock of the Company having
the
rights, powers and preferences set forth in the Certificate of Designations
attached hereto as Exhibit A, upon the terms and subject to the conditions
hereinafter set forth (the “Rights”).
NOW,
THEREFORE, in consideration of the premises and the mutual agreements herein
set
forth, the parties hereby agree as follows:
Section
1. Certain
Definitions. For purposes of this Agreement, the following terms
have the meanings indicated:
(a) “Acquiring
Person” shall mean any Person (as such term is hereinafter defined) who or
which, together with all Affiliates and Associates (as such terms are
hereinafter defined) of such Person, shall be the Beneficial Owner (as such
term
is hereinafter defined) of 15% or more of the Common Shares then outstanding,
but shall not include any Excluded Person (as such term is hereinafter
defined). Notwithstanding the foregoing, (i) no Person shall
become an “Acquiring Person” solely as the result of an acquisition of
Common Shares by the Company which, by reducing the number of shares
outstanding, increases the proportionate number of shares beneficially owned
by
such Person to 15% or more of the Common Shares then outstanding;
provided, however, that if a Person becomes the Beneficial Owner
of 15% or more of the Common Shares then outstanding by reason of share
acquisitions by the Company and shall, after such share acquisitions, become
the
Beneficial Owner of any additional Common Shares (other than pursuant to a
stock
split or stock dividend by the Company to all holders of Common Shares), then
such Person shall be deemed to be an “Acquiring Person”; and (ii) if
the Board of Directors determines in good faith that a Person who would
otherwise be an “Acquiring Person,” as defined pursuant to the foregoing
provisions of this paragraph, has become such inadvertently, and such Person
divests as promptly as practicable a sufficient number of Common Shares so
that
such Person would no longer be an “Acquiring Person,” as defined pursuant
to the foregoing provisions of this paragraph, then such
Person
shall not be deemed to have become an
“Acquiring Person” for any purposes of this Agreement.
(b) “Affiliate”,
“Associate” and “control” shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations under
the Securities Exchange Act of 1934, as amended (the “Exchange Act”), as
in effect on the date of this Agreement.
(c) A
Person shall be deemed the “Beneficial Owner” of and shall be deemed to
“beneficially own” any securities:
(i) which
such Person or any of such Person’s Affiliates or Associates beneficially owns,
directly or indirectly, within the meaning of Rule 13d-3 or Rule 13d-5 of
the General Rules and Regulations under the Exchange Act, as in effect on the
date of this Agreement;
(ii) which
such Person or any of such Person’s Affiliates or Associates, directly or
indirectly, has the right to acquire (whether such right is exercisable
immediately or only after the passage of time) pursuant to any agreement,
arrangement or understanding (other than customary agreements with and between
underwriters and selling group members with respect to a bona fide public
offering of securities), or upon the exercise of conversion rights, exchange
rights, rights (other than these Rights), warrants or options, or otherwise;
provided, however, that a Person shall not be deemed the
“Beneficial Owner” of, or to “beneficially own”, securities tendered
pursuant to a tender or exchange offer made by or on behalf of such Person
or
any of such Person’s Affiliates or Associates until such tendered securities are
accepted for purchase or exchange;
(iii) which
such Person or any of such Person’s Affiliates or Associates, directly or
indirectly, has the right to vote or dispose of pursuant to any agreement,
arrangement or understanding; provided, however, that a Person
shall not be deemed the “Beneficial Owner” of, or to “beneficially
own”, any security under this subparagraph (iii) as a result of an
agreement, arrangement or understanding to vote such security if such agreement,
arrangement or understanding (1) arises solely from a revocable proxy given
to
such Person in response to a public proxy or consent solicitation made pursuant
to, and in accordance with, the applicable rules and regulations of the Exchange
Act and (2) is not also then reportable on Schedule 13D under the Exchange
Act (or any comparable or successor report); or
(iv) which
are beneficially owned, directly or indirectly, by any other Person (or any
Affiliate or Associate thereof) with which such Person or any of such Person’s
Affiliates or Associates has any agreement, arrangement or understanding (other
than customary agreements with and between underwriters and selling group
members with respect to a bona fide public offering of securities) for the
purpose of acquiring, holding, voting (except pursuant to a
revocable
proxy as described in the proviso to subparagraph (iii) of this
paragraph (c)) or disposing of any securities of the Company.
If
a
Person shall be deemed to be the Beneficial Owner of any securities which are
not outstanding, such securities shall be deemed to be outstanding for purposes
of determining the percentage of Common Shares beneficially owned by such
Person.
(d) “Board
of Directors” has the meaning set forth in the recital of this
Agreement.
(e) “Business
Day” shall mean any day other than a Saturday, Sunday or a day on which
banking institutions in the State of New York are authorized or obligated by
law
or executive order to close.
(f) “Class
B Shares” means the shares of Class B Common Stock, par value $.01 per
share, of the Company or any other shares of capital stock of the Company into
which the Class B Shares are reclassified or changed (other than Common Shares
issued upon conversion of the Class B Shares in accordance with the terms
thereof).
(g) “Close
of Business” on any given date shall mean 5:00 P.M., New York City time, on
such date; provided, however, that if such date is not a Business
Day it shall mean 5:00 P.M., New York City time, on the next succeeding Business
Day.
(h) “Common
Shares” when used with reference to the Company (or without express
reference to another Person) shall mean the shares of Common Stock, par value
$.01 per share, of the Company, or any other shares of capital stock of the
Company into which the Common Shares are reclassified or
changed. “Common Shares” when used with reference to any
Person other than the Company shall mean the capital stock or other equity
securities or equity or other beneficial interests of such Person with the
greatest aggregate voting power.
(i) “Common
Stock Equivalent” shall mean a share, or fraction of a share, of Preferred
Stock, par value $.01 per share (or any other authorized class of preferred
stock), of the Company having dividend, voting, liquidation and other rights
which result, in the judgment of the Board of Directors, in such share, or
fraction of a share, being approximately equivalent in value to one Common
Share
as of the Event Date (as such term is hereinafter defined); provided,
however, that, if in the judgment of the Board of Directors there
are not
sufficient authorized but unissued shares of preferred stock available for
the
creation of Common Stock Equivalents, “Common Stock Equivalent” shall
mean such cash, reduction in Purchase Price (as such term is hereinafter
defined), other equity securities, debt securities, other assets or any
combination of the foregoing, that the Board of Directors shall determine to
be
approximately equivalent in value to one Common Share as of the Event
Date. As used herein, “Event Date” shall mean (i) for
purposes of any determination made pursuant to Section 11(a)(iii) hereof, the
date of occurrence of the event described in Section 11(a)(ii) hereof and
(ii) for purposes of any determination made pursuant to Section 25(c)
hereof, the Exchange Date (as such term is hereinafter defined).
(j) “Distribution
Date” shall have the meaning set forth in Section 3(a)
hereof.
(k) “Exchange”
shall have the meaning set forth in Section 25 hereof.
(l) “Exchange
Date” shall have the meaning set forth in Section 7(a) hereof.
(m) “Exchange
Ratio” shall have the meaning set forth in Section 25
hereof.
(n) “Excluded
Person” shall mean (i) the Company, (ii) any Subsidiary (as such term is
hereinafter defined) of the Company, (iii) any employee benefit plan of the
Company or of any Subsidiary of the Company, or any entity organized, appointed
or established by the Company for or pursuant to the terms of any such plan,
(iv) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (or any Affiliate or Associate of ▇▇. ▇▇▇▇▇▇), (v) ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ (or any Affiliate or Associate of ▇▇. ▇▇▇▇▇▇▇▇▇▇), (vi) ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ (or any Affiliate or Associate of ▇▇. ▇▇▇▇▇▇), or (vii) any other Person
to whom Class B Shares may be transferred by ▇▇. ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇▇▇▇ or
▇▇.
▇▇▇▇▇▇ without conversion thereof into Common Shares, pursuant to Article FOURTH
of the Company’s Amended and Restated Certificate of Incorporation.
(o) “Final
Expiration Date” shall have the meaning set forth in Section 7(a)
hereof.
(p) “Person”
shall mean any individual, firm, corporation, partnership or other entity and
shall include any successor by merger or otherwise of such Person.
(q) “Preferred
Shares” shall mean shares of Series A Junior Participating Preferred Stock,
par value $.01 per share, of the Company.
(r) “Principal
Party” shall have the meaning set forth in Section 13(b)
hereof.
(s) “Purchase
Price” shall have the meaning set forth in Section 4
hereof.
(t) “Record
Date” shall have the meaning set forth in the recital of this
Agreement.
(u) “Redemption
Date” shall have the meaning set forth in Section 7(a)
hereof.
(v) “Redemption
Price” shall have the meaning set forth in Section 24(a)
hereof.
(w) “Registered
Common Shares” shall have the meaning set forth in Section 13(b)
hereof.
(x) “Rights
Agent” shall have the meaning set forth in the recital of this
Agreement.
(y) “Right
Certificates” shall have the meaning set forth in Section 3(a)
hereof.
(z) “Rights”
shall have the meaning set forth in the recital of this Agreement.
(aa) “Securities
Act” shall mean the Securities Act of 1933, as amended.
(bb) “Share
Acquisition Date” shall mean the first date of public announcement by the
Company or an Acquiring Person that an Acquiring Person has become
such.
(cc) “Subsidiary”
shall mean, with reference to any Person, any corporation or other entity of
which a majority of the voting power of the voting equity securities or equity
or other beneficial interests is owned, directly or indirectly, by such Person,
or which is otherwise controlled by such Person.
(dd) “Summary
of Rights” shall have the meaning set forth in Section 3(b)
hereof.
(ee) “Trading
Day” shall have the meaning set forth in Section 11(d) hereof.
Section
2. Appointment
of Rights Agent. The Company hereby appoints the Rights Agent to
act as agent for the Company in accordance with the terms and conditions hereof,
and the Rights Agent hereby accepts such appointment. The Company may
from time to time appoint such Co-Rights Agents as it may deem necessary or
desirable upon ten (10) days’ prior written notice to the Rights
Agent. The Rights Agent shall have no duty to supervise, and shall in
no event be liable for, the acts or omissions of any such Co-Rights
Agent.
Section
3. Issue
of Right Certificates. (a) Until the earlier of (i) the Close of
Business on the tenth day after the Share Acquisition Date or (ii) the Close
of
Business on the tenth business day (or such later day as may be determined
by
action of the Board of Directors prior to such time as any Person becomes an
Acquiring Person) after the date that a tender or exchange offer by any Person
is first published, sent or given within the meaning of Rule 14d-2(a) of the
General Rules and Regulations under the Exchange Act if, upon consummation
thereof, such Person would be an Acquiring Person (the earlier of such dates,
including any such date which is after the date of this Agreement and prior
to
the issuance of the Rights, being herein referred to as the “Distribution
Date”), (x) the Rights will be evidenced (subject to the provisions of
paragraph (b) of this Section 3) by the certificates for Common Shares, and
the
certificates for Class B Shares, registered in the names of the holders thereof
(which certificates shall also be deemed to be certificates for Rights) and
not
by separate certificates, and (y) the Rights will be transferable only in
connection with the transfer of the underlying Common Shares or Class B Shares,
as the case may be. As soon as practicable after the Distribution
Date, the Rights Agent will send, by first-class, insured, postage prepaid
mail,
to each record holder of Common Shares as of the Close of Business on the
Distribution Date, and each record holder of Class B Shares as of the Close
of
Business on the Distribution Date, at the address of such
holder
shown
on
the records of the Company, one or more Right certificates, in substantially
the
form of Exhibit B hereto (the “Right Certificates”), evidencing one Right
for each Common Share, and one Right for each Class B Share, so held, subject
to
adjustment as provided herein. As of the Distribution Date, the
Rights will be evidenced solely by such Right Certificates.
(b) As
promptly as practicable after the Record Date, the Company will send a copy
of a
Summary of Rights in substantially the form attached hereto as Exhibit C (the
“Summary of Rights”), by first-class, postage prepaid mail, to each
record holder of Common Shares as of the Close of Business on the Record Date,
and each record holder of Class B Shares as of the Close of Business on the
Record Date, at the address of such holder shown on the records of the
Company. With respect to the certificates for Common Shares
outstanding as of the Record Date, until the Distribution Date, the Rights
will
be evidenced by such certificates for Common Shares together with a copy of
the
Summary of Rights, and the registered holders of Common Shares shall also be
the
registered holders of the associated Rights. With respect to the
certificates for Class B Shares outstanding as of the Record Date, until the
Distribution Date, the Rights will be evidenced by such certificates for Class
B
Shares together with a copy of the Summary of Rights, and the registered holders
of Class B Shares shall also be the registered holders of the associated
Rights. Until the Distribution Date (or the earliest of the
Redemption Date, Exchange Date or Final Expiration Date), the surrender for
transfer of any certificate for Common Shares or Class B Shares outstanding
on
the Record Date, with or without a copy of the Summary of Rights attached
thereto, shall also constitute the transfer of the Rights associated with the
Common Shares or Class B Shares represented by such certificate.
(c) Rights
shall be issued in respect of all Common Shares and all Class B Shares which
become outstanding (including, without limitation, any shares that were
previously reacquired as described in the last sentence of this paragraph (c))
after the Record Date but prior to the earliest of the Distribution Date, the
Redemption Date, the Exchange Date or the Final Expiration
Date. Certificates representing any such Common Shares or Class B
Shares shall also be deemed to be certificates for Rights, and shall bear the
following legend:
This
certificate also evidences and entitles the holder hereof to certain Rights
as
set forth in the Rights Agreement between Chindex International, Inc. (the
“Company”) and American Stock Transfer & Trust Company, dated as of
June 7, 2007 (the “Rights Agreement”), the terms of which are hereby
incorporated herein by reference and a copy of which is on file at the principal
executive offices of the Company. Under certain circumstances, as set
forth in the Rights Agreement, such Rights will be evidenced by separate
certificates and will no longer be evidenced by this certificate. The
Company will mail to the holder of this certificate a copy of the Rights
Agreement without charge promptly after receipt of a written request
therefor. As described in the Rights Agreement, Rights beneficially
owned by (i) an Acquiring Person or any Associate or Affiliate thereof (as
such
terms are defined in the Rights Agreement), (ii) a transferee of an Acquiring
Person (or of any such Associate or Affiliate) who becomes a transferee after
the Acquiring Person becomes such or (iii) under certain circumstances, a
transferee of an Acquiring Person (or of any such Associate or Affiliate) who
becomes a transferee before or concurrently with the Acquiring Person becoming
such, shall become null and void.
With
respect to such certificates containing the foregoing legend, until the earliest
of the Distribution Date, the Redemption Date, the Exchange Date or the Final
Expiration Date, the Rights associated with the Common Shares and Class B Shares
represented by such certificates shall be evidenced by such certificates alone
and the registered holders of Common Shares and Class B Shares shall also be
the
holders of the associated Rights, and the surrender for transfer of any such
certificates shall also constitute the transfer of the Rights associated with
the Common Shares or Class B Shares represented thereby. In the event
that the Company purchases or acquires any Common Shares or Class B Shares
after
the Record Date but prior to the Distribution Date (including, without
limitation, any Class B Shares that are converted into Common Shares in
accordance with their terms), any Rights associated with such purchased or
acquired Common Shares or Class B Shares shall be deemed cancelled and retired
so that the Company shall not be entitled to exercise any Rights associated
with
the Common Shares or Class B Shares which are no longer
outstanding.
Section
4. Form
of Right Certificates. The Right Certificates (and the forms of
election to purchase shares and of assignment to be printed on the reverse
thereof) shall be substantially in the form set forth in Exhibit B hereto and
may have such marks of identification or designation and such legends, summaries
or endorsements printed thereon as the Company may deem appropriate and as
are
not inconsistent with the provisions of this Agreement, or as may be required
to
comply with any applicable law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on which the Rights
may from time to time be listed, or to conform to usage. Subject to
the provisions of Section 11 and Section 23 hereof, the Right Certificates
shall
entitle the holders thereof to purchase such number of one one-hundredths of
a
Preferred Share as shall be set forth therein at the price per one one-hundredth
of a share set forth therein (the “Purchase Price”), but the number of
such shares and the Purchase Price shall be subject to adjustment as provided
herein.
Section
5. Countersignature
and Registration.
(a) The
Right Certificates shall be executed on behalf of the Company by its President
or any Executive Vice President, either manually or by facsimile signature,
and
shall have affixed thereto the Company’s seal or a facsimile thereof which shall
be attested by the Secretary or an Assistant Secretary or the Treasurer or
an
Assistant Treasurer of the Company, either manually or by facsimile
signature. The Right Certificates shall be manually countersigned by
the Rights Agent and shall not be valid for any purpose unless so
countersigned. In case any officer of the Company who shall have
signed any of the Right Certificates shall cease to be such officer of the
Company before countersignature by the Rights Agent and issuance and delivery
by
the Company, such Right Certificates, nevertheless, may be countersigned by
the
Rights Agent, and issued and delivered by the Company with the same force and
effect as though the person who signed such Right Certificates had not ceased
to
be such officer of the Company; and any Right Certificate may be signed on
behalf of the Company by any person who, at the actual date of the execution
of
such Right Certificate, shall be a proper officer of the Company to sign such
Right Certificate, although at the date of the execution of this Agreement
any
such person was not such an officer.
(b) Following
the Distribution Date, the Rights Agent will keep or cause to be kept, at one
of
its offices designated for such purpose, books for registration
and
transfer
of the Right Certificates issued hereunder. Such books shall show the
names and addresses of the respective holders of the Right Certificates, the
number of Rights evidenced on its face by each of the Right Certificates, the
Certificate Number of each such Right Certificate and the date of each of the
Right Certificates.
Section
6. Transfer,
Split Up, Combination and Exchange of Right Certificates; Mutilated, Destroyed,
Lost or Stolen Right Certificates.
(a) Subject
to the provisions of Section 7(e) and Section 15 hereof, at any time after
the
Close of Business on the Distribution Date, and at or prior to the Close of
Business on the earliest of the Redemption Date, the Exchange Date or the Final
Expiration Date, any Right Certificate or Certificates may be transferred,
split
up, combined or exchanged for another Right Certificate or Right Certificates,
entitling the registered holder to purchase a like number of Preferred Shares
as
the Right Certificate or Right Certificates surrendered then entitled such
holder to purchase. Any registered holder desiring to transfer, split
up, combine or exchange any Right Certificate shall make such request in writing
delivered to the Rights Agent, and shall surrender the Right Certificate or
Right Certificates to be transferred, split up, combined or exchanged at the
principal office or offices of the Rights Agent designated for such
purpose. Neither the Rights Agent nor the Company shall be obligated
to take any action whatsoever with respect to the transfer of any such
surrendered Right Certificate or Right Certificates until the registered holder
shall have properly completed and signed the certificate contained in the form
of assignment set forth on the reverse side of each such Right Certificate
and
shall have provided such additional evidence of the identity of the Beneficial
Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the
Company shall reasonably request. Thereupon the Rights Agent shall,
subject to Section 7(e) and Section 15 hereof, countersign and deliver to the
person entitled thereto a Right Certificate or Right Certificates, as the case
may be, as so requested. The Company may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer, split up, combination or exchange of Right
Certificates.
(b) Upon
receipt by the Company and the Rights Agent of evidence reasonably satisfactory
to them of the loss, theft, destruction or mutilation of a Right Certificate,
and, in case of loss, theft or destruction, of indemnity or security reasonably
satisfactory to them, and, at the Company’s request, reimbursement to the
Company and the Rights Agent of all reasonable expenses incidental thereto,
and
upon surrender to the Rights Agent and cancellation of the Right Certificate
if
mutilated, the Company will execute and deliver a new Right Certificate of
like
tenor to the Rights Agent for delivery to the registered owner in lieu of the
Right Certificate so lost, stolen, destroyed or mutilated.
Section
7. Exercise
of Rights; Purchase Price; Expiration Date of Rights.
(a) The
Rights shall not be exercisable prior to the Distribution Date. The
registered holder of any Right Certificate may exercise the Rights evidenced
thereby (except as otherwise provided herein) in whole or in part at any time
after the Distribution Date upon surrender of the Right Certificate, with the
form of election to purchase on the reverse side thereof duly executed, to
the
Rights Agent at the principal office or offices of the Rights Agent designated
for such purpose, together with payment of the Purchase Price for each
one
one-hundredth
of a Preferred Share as to which the Rights are exercised, at or prior to the
earliest of (i) the Close of Business on June 14, 2017 (the “Final Expiration
Date”), (ii) the time at which the Rights are redeemed as provided in
Section 24 hereof (the “Redemption Date”) or (iii) the time at which
the Rights are exchanged as provided in Section 25 hereof (the “Exchange
Date”).
(b) The
Purchase Price for each one one-hundredth of a Preferred Share pursuant to
the
exercise of a Right shall initially be $58, shall be subject to adjustment
from
time to time as provided in Sections 11 and 13 hereof and shall be payable
in lawful money of the United States of America in accordance with paragraph
(c)
below.
(c) Upon
receipt of a Right Certificate representing exercisable Rights, with the form
of
election to purchase duly executed, accompanied by payment of the Purchase
Price
for the shares to be purchased as set forth below and an amount equal to any
applicable transfer tax required to be paid by the holder of such Right
Certificate in accordance with Section 9(e) hereof, the Rights Agent shall,
subject to Section 21(j) hereof, thereupon promptly
(i) (A) requisition from any transfer agent of the Preferred Shares
(or make available, if the Rights Agent is the transfer agent for such shares)
certificates for the number of Preferred Shares to be purchased and the Company
hereby irrevocably authorizes its transfer agent to comply with all such
requests, or (B) if the Company shall have elected to deposit the Preferred
Shares issuable upon exercise of the Rights hereunder into a depositary,
requisition from the depositary agent depositary receipts representing such
number of one one-hundredths of a Preferred Share as are to be purchased (in
which case certificates for the Preferred Shares represented by such receipts
shall be deposited by the transfer agent with the depositary agent) and the
Company will direct the depositary agent to comply with such request, (ii)
requisition from the Company the amount of cash, if any, to be paid in lieu
of
issuance of fractional shares in accordance with Section 15 hereof, (iii)
after receipt of such certificates or depositary receipts, cause the same to
be
delivered to or upon the order of the registered holder of such Right
Certificate, registered in such name or names as may be designated by such
holder, and (iv) after receipt thereof, deliver such cash, if any, to or upon
the order of the registered holder of such Right Certificate. The
payment of the Purchase Price shall be made in cash or by certified or bank
official check or money order payable to the order of the Company. In
the event that the Company is obligated to issue other securities of the Company
pursuant to Section 11(a) hereof, the Company will make all arrangements
necessary so that such other securities are available for distribution by the
Rights Agent, if and when necessary to comply with this Agreement.
(d) In
case the registered holder of any Right Certificate shall exercise less than
all
the Rights evidenced thereby, a new Right Certificate evidencing Rights
equivalent to the Rights remaining unexercised shall be issued by the Rights
Agent and delivered to the registered holder of such Right Certificate or to
his
duly authorized assigns, subject to the provisions of Sections 6 and 15
hereof.
(e) Notwithstanding
anything in this Agreement to the contrary, from and after the occurrence of
the
event described in Section 11(a)(ii) hereof, any Rights beneficially owned
by
(i) an Acquiring Person or any Associate or Affiliate of an Acquiring Person,
(ii) a transferee of an Acquiring Person (or of any such Associate or Affiliate)
who becomes a transferee after the Acquiring Person becomes such, or (iii)
a
transferee of an Acquiring Person (or of any such Associate or Affiliate) who
becomes a transferee prior to or
concurrently
with the Acquiring Person becoming such and receives such Rights pursuant to
either (A) a transfer (whether or not for consideration) from the Acquiring
Person to holders of equity interests in such Acquiring Person or to any Person
with whom the Acquiring Person has any continuing agreement, arrangement or
understanding regarding the transferred Rights or (B) a transfer which a
majority of the Board of Directors has determined is part of a plan, agreement,
arrangement or understanding which has as a primary purpose or effect the
avoidance of this Section 7(e), shall become null and void without any further
action and no holder of such Rights shall have any rights whatsoever with
respect to such Rights, whether under any provision of this Agreement or
otherwise. No Right Certificate shall be issued pursuant to Section 3
hereof that represents Rights beneficially owned by an Acquiring Person whose
Rights would be void pursuant to the preceding sentence or any Associate or
Affiliate thereof and no Right Certificate shall be issued at any time upon
the
transfer of any Rights to an Acquiring Person whose Rights would be void
pursuant to the preceding sentence or any Associate or Affiliate thereof or
to
any nominee of such Acquiring Person, Associate or Affiliate. Any
Right Certificate delivered to the Rights Agent for transfer to any of the
foregoing Persons, or which represents void Rights, shall be
cancelled. The Company shall use reasonable efforts to effect
compliance with the provisions of this Section 7(e), but shall have no liability
to any holder of Right Certificates or other Person as a result of its failure
to make any determinations with respect to an Acquiring Person or its
Affiliates, Associates or transferees hereunder.
(f) Notwithstanding
anything in this Agreement to the contrary, neither the Rights Agent nor the
Company shall be obligated to undertake any action with respect to a registered
holder upon the occurrence of any purported transfer as set forth in Section
6
hereof or exercise as set forth in this Section 7 unless such registered holder
shall have (i) properly completed and signed the certificate contained in the
form of assignment or election to purchase set forth on the reverse side of
the
Right Certificate surrendered for such assignment or exercise and (ii) provided
such additional evidence of the identity of the Beneficial Owner (or former
Beneficial Owner) or Affiliates or Associates thereof as the Company shall
reasonably request.
Section
8. Cancellation
and Destruction of Right Certificates. All Right Certificates
surrendered for the purpose of exercise, transfer, split up, combination or
exchange shall, if surrendered to the Company or to any of its agents, be
delivered to the Rights Agent for cancellation or in cancelled form, or, if
surrendered to the Rights Agent, shall be cancelled by it, and no Right
Certificates shall be issued in lieu thereof except as expressly permitted
by
any of the provisions of this Agreement. The Company shall deliver to
the Rights Agent for cancellation and retirement, and the Rights Agent shall
so
cancel and retire, any other Right Certificate purchased or acquired by the
Company otherwise than upon the exercise thereof. The Rights Agent
shall deliver all cancelled Right Certificates to the Company, or shall, at
the
written request of the Company, destroy such cancelled Right Certificates,
and
in such case shall deliver a certificate of destruction thereof to the
Company.
Section
9. Reservation
and Availability of Preferred Shares.
(a) The
Company covenants and agrees that it will cause to be reserved and kept
available out of its authorized and unissued Preferred Shares and/or
any
authorized
and issued Preferred Shares held in its treasury, the number of Preferred Shares
that will be sufficient to permit the exercise in full of all outstanding
Rights.
(b) The
Company shall use its best efforts to cause, from and after such time as the
Rights become exercisable, all Preferred Shares issued or reserved for issuance
to be listed, upon official notice of issuance, upon the principal national
securities exchange, if any, upon which the Common Shares are
listed.
(c) The
Company shall use its best efforts to (i) file, as soon as practicable following
the earliest date after the occurrence of the event described in
Section 11(a)(ii) hereof on which the consideration to be delivered by the
Company has been determined in accordance with Section 11(a)(ii) or 11(a)(iii)
hereof, as the case may be, a registration statement under the Securities Act
with respect to the securities purchasable upon exercise of the Rights on an
appropriate form, (ii) cause such registration statement to become effective
as
soon as practicable after such filing, and (iii) subject to Section 25 hereof,
cause such registration statement to remain effective (with a prospectus at
all
times meeting the requirements of the Securities Act) until the earlier of
(A)
the date as of which the Rights are no longer exercisable for such securities
and (B) the Final Expiration Date. The Company will also take such
action as may be appropriate under, or to ensure compliance with, the securities
or “blue sky” laws of the various states in connection with the exercisability
of the Rights. The Company may temporarily suspend, for a period of
time not to exceed ninety (90) days after the date described in clause (i)
of
the first sentence of this Section 9(c), the exercisability of the Rights in
order to prepare and file such registration statement and permit it to become
effective. Upon any such suspension, the Company shall issue a public
announcement stating that the exercisability of the Rights has been temporarily
suspended, as well as a public announcement at such time as the suspension
is no
longer in effect. In addition, if the Company shall determine that a
registration statement is required following the Distribution Date but prior
to
the occurrence of the event described in Section 11(a)(ii) hereof, the Company
may temporarily suspend the exercisability of the Rights until such time as
a
registration statement has been declared effective. Notwithstanding
any provision of this Agreement to the contrary, the Rights shall not be
exercisable in any jurisdiction if the requisite qualification in such
jurisdiction shall not have been obtained, the exercise thereof shall not be
permitted under applicable law or the requisite registration statement shall
not
have been declared effective.
(d) The
Company covenants and agrees that it will take all such action as may be
necessary to ensure that all Preferred Shares delivered upon exercise of Rights
shall, at the time of delivery of the certificates for such shares (subject
to
payment of the Purchase Price), be duly and validly authorized and issued and
fully paid and nonassessable shares.
(e) The
Company further covenants and agrees that it will pay when due and payable
any
and all federal and state transfer taxes and charges which may be payable in
respect of the issuance or delivery of the Right Certificates and of any
certificates or depositary receipts for Preferred Shares upon the exercise
of
Rights. The Company shall not, however, be required to pay any
transfer tax which may be payable in respect of any transfer or delivery of
Right Certificates to a person other than, or the issuance or delivery of
certificates or depositary receipts for Preferred Shares in a name other than
that of, the registered holder of the Right Certificates evidencing Rights
surrendered for exercise or to issue or deliver any certificates
or
depositary
receipts for Preferred Shares in a name other than that of the registered holder
upon the exercise of any Rights until any such tax shall have been paid (any
such tax being payable by the holder of such Right Certificate at the time
of
surrender) or until it has been established to the Company’s
satisfaction that no such tax is due.
Section
10. Preferred
Shares Record Date. Each person in whose name any certificate for
Preferred Shares is issued upon the exercise of Rights shall for all purposes
be
deemed to have become the holder of record of the Preferred Shares represented
thereby on, and such certificate shall be dated, the date upon which the Right
Certificate evidencing such Rights was duly surrendered and payment of the
Purchase Price (and all applicable transfer taxes) was made; provided,
however, that if the date of such surrender and payment is a date
upon
which the transfer books of the Company with respect to the Preferred Shares
are
closed, such person shall be deemed to have become the record holder of such
shares on, and such certificate shall be dated, the next succeeding Business
Day
on which the transfer books of the Company for the Preferred Shares are
open.
Section
11.
Adjustment of Purchase Price, Number and Kind of Shares or Number of
Rights. The Purchase Price, the number and kind of shares covered
by each Right and the number of Rights outstanding are subject to adjustment
from time to time as provided in this Section 11.
(a) (i) In
the event the Company shall, at any time after the date of this Agreement,
(A)
declare a dividend on the Preferred Shares payable in Preferred Shares, (B)
subdivide the outstanding Preferred Shares into a greater number of shares,
(C)
combine the outstanding Preferred Shares into a smaller number of shares or
(D)
issue any shares of its capital stock in a reclassification of the Preferred
Shares (including any such reclassification in connection with a consolidation
or merger in which the Company is the continuing or surviving corporation),
except as otherwise provided in this Section 11(a) and in Section 7(e) hereof,
the Purchase Price in effect at the time of the record date for such dividend
or
of the effective date of such subdivision, combination or reclassification,
and
the number and kind of Preferred Shares or shares of capital stock, as the
case
may be, issuable on such date, shall be proportionately adjusted so that the
holder of any Right exercised after such time shall be entitled to receive
the
aggregate number and kind of Preferred Shares or shares of capital stock, as
the
case may be, which he would have owned immediately after such dividend,
subdivision, combination or reclassification if he had exercised such Right
immediately prior to such date and at a time when the transfer books of the
Company for the Preferred Shares were open.
(ii) Subject
to Sections 11(a)(iii) and 25 hereof, in the event that any Person shall become
an Acquiring Person, then proper provision shall be made so that each holder
of
a Right, except as provided in Section 7(e) hereof, shall thereafter have a
right to receive, upon exercise thereof at a price equal to the then current
Purchase Price multiplied by the number of one one-hundredths of a Preferred
Share for which a Right is then exercisable, in accordance with the terms of
this Agreement and in lieu of Preferred Shares, such number of
Common
Shares
as
shall equal the result obtained by (x) multiplying the then current Purchase
Price by the then number of one one-hundredths of a Preferred Share for which
a
Right is then exercisable and (y) dividing that product by 50% of the current
market price (determined pursuant to Section 11(d)(i) hereof) per Common Share
on the date such Person became an Acquiring Person.
(iii) Subject
to Section 25 hereof, in the event that the number of Common Shares which are
authorized by the Company’s Certificate of Incorporation but not outstanding or
reserved for issuance for purposes other than upon exercise of the Rights are
not sufficient to permit the exercise in full of the Rights in accordance with
the foregoing subparagraph (ii), the Rights shall not be exercisable for Common
Shares, but proper provision shall be made so that each holder of a Right,
except as provided in Section 7(e) hereof, shall thereafter have a right to
receive, upon exercise thereof in accordance with the terms of this Agreement
at
the price determined pursuant to the foregoing subparagraph (ii), such number
of
Common Stock Equivalents (or, in the judgment of the Board of Directors, such
combination of Common Stock Equivalents and Common Shares) as shall equal the
number of Common Shares determined pursuant to the foregoing subparagraph
(ii).
(b) In
case the Company shall fix a record date for the issuance of rights, options
or
warrants to all holders of Preferred Shares entitling them to subscribe for
or
purchase (for a period expiring within 45 calendar days after such record date)
Preferred Shares (or shares having the same rights, privileges and preferences
as the Preferred Shares (“equivalent preferred shares”)) or securities
convertible into Preferred Shares or equivalent preferred shares at a price
per
Preferred Share or equivalent preferred share (or having a conversion price
per
share, if a security convertible into Preferred Shares or equivalent preferred
shares) less than the current market price (as determined pursuant to Section
11(d)(ii) hereof) per Preferred Share on such record date, the Purchase Price
to
be in effect after such record date shall be determined by multiplying the
Purchase Price in effect immediately prior to such record date by a fraction,
the numerator of which shall be the number of Preferred Shares outstanding
on
such record date, plus the number of Preferred Shares which the aggregate
offering price of the total number of Preferred Shares so to be offered and/or
equivalent preferred shares so to be offered (and/or the aggregate initial
conversion price of the convertible securities so to be offered) would purchase
at such current market price and the denominator of which shall be the number
of
Preferred Shares outstanding on such record date, plus the number of additional
Preferred Shares and/or equivalent preferred shares to be offered for
subscription or purchase (or into which the convertible securities so to be
offered are initially convertible). In case such subscription price
may be paid in a consideration part or all of which shall be in a form other
than cash, the value of such consideration shall be as determined in good faith
by the Board of Directors, whose determination shall be described in a statement
filed with the Rights Agent and shall be conclusive for all
purposes. Preferred Shares owned by or held for the account of the
Company shall not be deemed outstanding for the purpose of any such
computation. Such adjustment shall be made successively whenever such
a record date is fixed; and in the event that such rights or warrants are not
so
issued, the Purchase Price shall be adjusted to be the Purchase Price which
would then be in effect if such record date had not been fixed.
(c) In
case the Company shall fix a record date for a distribution to all holders
of
Preferred Shares (including any such distribution made in connection with a
consolidation or merger in which the Company is the continuing or surviving
corporation) of evidences of indebtedness, cash (other than a regular quarterly
cash dividend), assets, stock (other than a dividend payable in Preferred
Shares) or subscription rights, options or warrants (excluding those referred
to
in or excluded pursuant to Section 11(b) hereof), the Purchase Price to be
in
effect after such record date shall be determined by multiplying the Purchase
Price in effect immediately prior to such record date by a fraction, the
numerator of which shall be the current market price (as determined pursuant
to
Section 11(d)(ii) hereof) per one one-hundredth of a Preferred Share on such
record date, less the fair market value (as determined in good faith
by the Board of Directors, whose determination shall be described in a statement
filed with the Rights Agent and shall be conclusive for all purposes) of the
portion of the cash, assets, stock or evidences of indebtedness so to be
distributed or of such subscription rights, options or warrants applicable
to
one one-hundredth of a Preferred Share and the denominator of which shall be
such current market price (as determined pursuant to Section 11(d)(ii) hereof)
per one one-hundredth of a Preferred Share. Such adjustments shall be
made successively whenever such a record date is fixed; and in the event that
such distribution is not so made, the Purchase Price shall again be adjusted
to
be the Purchase Price which would then be in effect if such record date had
not
been fixed.
(d) (i) For
the purposes of any computation hereunder, the “current market price” per
Common Share on any date shall be deemed to be the average of the daily closing
prices per Common Share for the 30 consecutive Trading Days (as such term is
hereinafter defined) immediately prior to such date; provided,
however, that in the event that the current market price per Common
Share
is determined during a period following the announcement by the issuer of such
Common Shares of (A) a dividend or distribution on such Common Shares payable
in
such Common Shares or securities convertible into such Common Shares (other
than
the Rights) or (B) any subdivision, combination or reclassification of such
Common Shares and prior to the expiration of 30 Trading Days after the
ex-dividend date for such dividend or distribution, or the record date for
such
subdivision, combination or reclassification, then, and in each such case,
the
“current market price” shall be appropriately adjusted to take into account
ex-dividend trading. The closing price for each day shall be the last
sale price, regular way, or, in case no such sale takes place on such day,
the
average of the closing bid and asked prices, regular way, in either case as
reported in the principal consolidated transaction reporting system with respect
to securities listed or admitted to trading on the New York Stock Exchange
or,
if the Common Shares are not listed or admitted to trading on the New York
Stock
Exchange, as reported in the principal consolidated transaction reporting system
with respect to securities listed on the principal national securities exchange
on which the Common Shares are listed or admitted to trading or, if the Common
Shares are not listed or admitted to trading on any national securities
exchange, the last quoted price or, if not so quoted, the average of the high
bid and low asked prices in the over-the-counter market, as reported by the
system then in use, or, if on any such date the Common Shares are not so quoted,
the average of the closing bid and asked prices as furnished by a professional
market maker making a market in
the
Common Shares selected by the Board of Directors. If on any such date
no market maker is making a market in the Common Shares, the fair value of
such
shares on such date as determined in good faith by the Board of Directors shall
be used and shall be conclusive for all purposes. The term “Trading Day”
shall mean a day on which the principal national securities exchange
on which
the Common Shares are listed or admitted to trading is open for the transaction
of business or, if the Common Shares are not listed or admitted to trading
on
any national securities exchange, a Business Day. If the Common
Shares are not publicly held or not so listed or traded, “current market
price” per share shall mean the fair value per share as determined in good
faith by the Board of Directors, whose determination shall be described in
a
statement filed with the Rights Agent and shall be conclusive for all
purposes.
(ii) For
the purpose of any computation hereunder, the “current market price” per
Preferred Share shall be determined in the same manner as set forth above for
the Common Shares in subparagraph (i) of this Section 11(d) (other than the
last
sentence thereof). If the current market price per Preferred Share
cannot be determined in the manner provided above or if the Preferred Shares
are
not publicly held or listed or traded in a manner described in subparagraph
(i)
of this Section 11(d), the “current market price” per Preferred Share
shall be conclusively deemed to be an amount equal to 100 times the current
market price per Common Share (as appropriately adjusted for such events as
stock splits, stock dividends and recapitalizations with respect to the Common
Shares occurring after the date of this Agreement). If neither the Common Shares
nor the Preferred Shares are publicly held or so listed or traded, “current
market price” per Preferred Share shall mean the fair value per share as
determined in good faith by the Board of Directors, whose determination shall
be
described in a statement filed with the Rights Agent and shall be conclusive
for
all purposes.
(e) Anything
herein to the contrary notwithstanding, no adjustment in the Purchase Price
shall be required unless such adjustment would require an increase or decrease
of at least 1% in such price; provided, however, that any
adjustments which by reason of this Section 11(e) are not required to be made
shall be carried forward and taken into account in any subsequent
adjustment. All calculations under this Section 11 shall be made to
the nearest cent or to the nearest ten-thousandth of a Common Share or other
share or one-millionth of a Preferred Share, as the case may
be. Notwithstanding the first sentence of this Section 11(e), any
adjustment required by this Section 11 shall be made no later than the earlier
of (i) three (3) years from the date of the transaction which requires such
adjustment or (ii) the date of the expiration of the right to exercise any
Rights.
(f) If
as a result of an adjustment made pursuant to Section 11(a) or Section 13(a)
hereof, the holder of any Right thereafter exercised shall become entitled
to
receive any shares of capital stock other than Preferred Shares, thereafter
the
number of such other shares so receivable upon exercise of any Right shall
be
subject to adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to the
Preferred
Shares contained in this Section 11 and the provisions of Sections 6, 7, 9,
10,
13 and 15 with respect to the Preferred Shares shall apply on like terms to
any
such other shares.
(g) All
Rights originally issued by the Company subsequent to any adjustment made to
the
Purchase Price hereunder shall evidence the right to purchase, at the adjusted
Purchase Price, the number of one one-hundredths of a Preferred Share
purchasable from time to time hereunder upon exercise of the Rights, all subject
to further adjustment as provided herein.
(h) Unless
the Company shall have exercised its election as provided in Section 11(i),
upon
each adjustment of the Purchase Price as a result of the calculations made
pursuant to Sections 11(b) and (c), each Right outstanding immediately prior
to
the making of such adjustment shall thereafter evidence the right to purchase,
at the adjusted Purchase Price, that number of one one-hundredths of a Preferred
Share (calculated to the nearest one-millionth) obtained by (i) multiplying
(x)
the number of one one-hundredths of a share covered by a Right immediately
prior
to this adjustment, by (y) the Purchase Price in effect immediately prior to
such adjustment of the Purchase Price, and (ii) dividing the
product so obtained by the Purchase Price in effect immediately after
such adjustment of the Purchase Price.
(i) The
Company may elect on or after the date of any adjustment of the Purchase Price
to adjust the number of Rights, in substitution for any adjustment in the number
of Preferred Shares purchasable upon the exercise of a Right. Each of
the Rights outstanding after such adjustment in the number of Rights shall
be
exercisable for the number of one one-hundredths of a Preferred Share for which
a Right was exercisable immediately prior to such adjustment. Each
Right held of record prior to such adjustment of the number of Rights shall
become that number of Rights (calculated to the nearest one ten-thousandth)
obtained by dividing the Purchase Price in effect immediately prior to
adjustment of the Purchase Price by the Purchase Price in effect immediately
after adjustment of the Purchase Price. The Company shall make a
public announcement of its election to adjust the number of Rights, indicating
the record date for the adjustment, and, if known at the time, the amount of
the
adjustment to be made. This record date may be the date on which the
Purchase Price is adjusted or any day thereafter, but, if the Right Certificates
have been issued, shall be at least ten (10) days later than the date of the
public announcement.
If
Right
Certificates have been issued, upon each adjustment of the number of Rights
pursuant to this Section 11(i), the Company shall, as promptly as practicable,
cause to be distributed to holders of record of Right Certificates on such
record date Right Certificates evidencing, subject to Section 15 hereof, the
additional Rights to which such holders shall be entitled as a result of such
adjustment, or, at the option of the Company, shall cause to be distributed
to
such holders of record in substitution and replacement for the Right
Certificates held by such holders prior to the date of adjustment, and upon
surrender thereof, if required by the Company, new Right Certificates evidencing
all the Rights to which such holder shall be entitled after such adjustment.
Right Certificates so to be distributed shall be issued, executed and
countersigned in the manner provided for herein (and may bear, at the option
of
the Company, the adjusted Purchase Price) and shall be registered in the names
of the holders of record of Right Certificates on the record date specified
in
the public announcement.
(j) Irrespective
of any adjustment or change in the Purchase Price or the number of one
one-hundredths of a Preferred Share issuable upon the exercise of the Rights,
the Right Certificates theretofore and thereafter issued may continue to express
the Purchase Price per one one-hundredth of a share and the number of shares
which were expressed in the initial Right Certificates issued
hereunder.
(k) Before
taking any action that would cause an adjustment reducing the Purchase Price
below one one-hundredth of the then par value, if any, of the Preferred Shares
issuable upon exercise of the Rights, the Company shall take any corporate
action which may, in the opinion of its counsel, be necessary in order that
the
Company may validly and legally issue fully paid and nonassessable Preferred
Shares at such adjusted Purchase Price.
(l) In
any case in which this Section 11 shall require that an adjustment in the
Purchase Price be made effective as of a record date for a specified event,
the
Company may elect to defer until the occurrence of such event the issuing to
the
holder of any Right exercised after such record date of the Preferred Shares
and
other capital stock or securities of the Company, if any, issuable upon such
exercise over and above the Preferred Shares and other capital stock or
securities of the Company, if any, issuable upon such exercise on the basis
of
the Purchase Price in effect prior to such adjustment; provided,
however, that the Company shall deliver to such holder a due ▇▇▇▇
or
other appropriate instrument evidencing such holder’s right to receive such
additional shares upon the occurrence of the event requiring such
adjustment.
(m) Anything
in this Section 11 to the contrary notwithstanding, the Company shall be
entitled to make such reductions in the Purchase Price, in addition to those
adjustments expressly required by this Section 11, as and to the extent that
it
in its sole discretion shall determine to be advisable in order that any
consolidation or subdivision of the Preferred Shares, issuance wholly for cash
of any of the Preferred Shares at less than the current market price, issuance
wholly for cash of Preferred Shares or securities which by their terms are
convertible into or exchangeable for Preferred Shares, stock dividends or
issuance of rights, options or warrants referred to hereinabove in this Section
11, hereafter made by the Company to holders of its Preferred Shares shall
not
be taxable to such stockholders.
(n) In
the event that any time after the date of this Agreement and prior to the
Distribution Date, the Company shall (i) declare or pay any dividend on the
Common Shares or Class B Shares payable in Common Shares or Class B Shares, as
the case may be, (ii) effect a subdivision, combination or consolidation of
the
Common Shares or Class B Shares (by reclassification or otherwise than by
payment of dividends in Common Shares or Class B Shares, as the case may be)
into a greater or lesser number of Common Shares or Class B Shares, as the
case
may be, then in any such case (i) the number of one one-hundredths of a
Preferred Share purchasable after such event upon proper exercise of each Right
shall be determined by multiplying the number of one one-hundredths of a
Preferred Share so purchasable immediately prior to such event by a fraction,
the numerator of which is the number of Common Shares or Class B Shares, as
the
case may be, outstanding immediately before such event and the denominator
of
which is the number of Common Shares or Class B Shares, as the case may be,
outstanding immediately after such event, and (ii) each Common Share or Class
B
Share, as the case may be, outstanding immediately after such event shall have
issued with respect to it that
number
of
Rights which each Common Share or Class B Shares, as the case may be,
outstanding immediately prior to such event had issued with respect to
it. The adjustments provided for in this Section 11(n) shall be made
successively whenever such a dividend is declared or paid or such a subdivision,
combination or consolidation is effected.
Section
12. Certificate
of Adjusted Purchase Price or Number of Shares. Whenever an
adjustment is made as provided in Sections 11 and/or 13 hereof, the Company
shall (a) promptly prepare a certificate setting forth such adjustment, and
a
brief statement of the facts accounting for such adjustment, (b) promptly file
with the Rights Agent and with each transfer agent for the Preferred Shares,
the
Common Shares and the Class B Shares a copy of such certificate and (c) mail
a
brief summary thereof to each holder of a Right Certificate (or, if prior to
the
Distribution Date, to each holder of a certificate representing Common Shares
or
Class B Shares) in accordance with Section 27 hereof. The Rights
Agent shall be fully protected in relying on any such certificate and on any
adjustment therein contained.
Section
13. Consolidation,
Merger or Sale or Transfer of Assets or Earning Power.
(a) In
the event that, following the Share Acquisition Date, (x) the Company, directly
or indirectly, shall consolidate with, or merge with and into, any other Person,
and the Company shall not be the continuing or surviving corporation of such
consolidation or merger, (y) any Person, directly or indirectly, shall
consolidate with, or merge with and into, the Company, and the Company shall
be
the continuing or surviving corporation of such consolidation or merger and,
in
connection with such consolidation or merger, all or part of the outstanding
Common Shares shall be changed into or exchanged for stock or other securities
of any other Person (or of the Company) or cash or any other property, or (z)
the Company, directly or indirectly, shall sell or otherwise transfer (or one
or
more of its Subsidiaries, directly or indirectly, shall sell or otherwise
transfer), in one or more transactions, assets or earning power aggregating
more
than 50% of the assets or earning power of the Company and its Subsidiaries
(taken as a whole) to any Person or Persons (other than the Company or one
or
more wholly owned Subsidiaries of the Company), then, and in each such case,
proper provision shall be made so that (i) each holder of a Right (except as
otherwise provided herein) shall thereafter have the right to receive, upon
the
exercise thereof at a price equal to the then current Purchase Price multiplied
by the number of one one-hundredths of a Preferred Share for which a Right
is
then exercisable (without taking into account any adjustment previously made
pursuant to Section 11(a)(ii) or 11(a)(iii) hereof), in accordance with the
terms of this Agreement, such number of validly authorized and issued, fully
paid, nonassessable and freely tradeable Common Shares of the
Principal Party (as hereinafter defined), free and clear of any liens,
encumbrances and other adverse claims and not subject to any rights of call
or
first refusal, as shall be equal to the result obtained by (1) multiplying
the
then current Purchase Price by the number of one one-hundredths of a Preferred
Share for which a Right is then exercisable (without taking into account any
adjustment previously made pursuant to Section 11(a)(ii) or 11(a)(iii) hereof)
and (2) dividing that product by 50% of the current market price (determined
pursuant to Section 11(d)(i) hereof) per Common Share of the Principal Party
on
the date of consummation of such consolidation, merger, sale or transfer; (ii)
such Principal Party shall thereafter be liable for, and shall assume, by virtue
of such consolidation, merger, sale or transfer, all the obligations and duties
of the Company pursuant to this Agreement; (iii) except for purposes of Section
1(f)
hereof,
the term “Company” shall thereafter be deemed to refer to such Principal Party;
(iv) such Principal Party shall take such steps (including, but not limited
to,
the reservation of a sufficient number of its Common Shares) in connection
with
the consummation of any such transaction as may be necessary to assure that
the
provisions hereof shall thereafter be applicable, as nearly as reasonably may
be, in relation to its Common Shares thereafter deliverable upon the exercise
of
the Rights; provided, however, that, upon the subsequent
occurrence of any merger, consolidation, sale of all or substantially all of
the
assets, recapitalization, reclassification of shares, reorganization or other
extraordinary transaction in respect of such Principal Party, each holder of
a
Right (except as otherwise provided herein) shall thereupon be entitled to
receive, upon exercise of a Right and payment of the Purchase Price, such cash,
shares, rights, warrants and other property which such holder would have been
entitled to receive had he, at the time of such transaction, owned the Common
Shares of the Principal Party purchasable upon the exercise of a Right (after
giving effect to the foregoing provisions of this Section 13(a)), and such
Principal Party shall take such steps (including, but not limited to,
reservation of shares of stock) as may be necessary to permit the subsequent
exercise of the Rights in accordance with the terms hereof for such cash,
shares, rights, warrants and other property and (v) the provisions of Sections
11(a)(ii) and 11(a)(iii) hereof shall be of no effect following the occurrence
of any event described in clauses (x), (y) and (z) of this Section
13(a).
(b) “Principal
Party” shall mean
(i) in
the case of any merger described in clause (x) or (y) of Section 13(a), any
Person that is the issuer of any securities into which Common Shares of the
Company are converted in such merger, and if no securities are so issued, any
Person that is a party to such merger that survives the merger;
(ii) in
the case of any consolidation described in clause (x) or (y) of Section 13(a),
any Person that directly controls, alone or with other Persons, a corporation
that is consolidating with the Company; and
(iii) in
the case of any transaction or transactions described in clause (z) of Section
13(a), any Person that receives any assets or earning power transferred pursuant
to such transaction or transactions;
provided,
however, that with respect to such Person (or, if there is more than one
such Person, with respect to each such Person), (1) if the Common Shares of
such
Person are not at such time and have not been continuously over the preceding
twelve (12) month period registered under Section 12 of the Exchange Act
(“Registered Common Shares”), or such Common Shares are deregistered as a
consequence of any merger described in Section 13(a) hereof, or such Person
is
not a corporation, and such Person is (or, upon consummation of any merger
described in Section 13(a) hereof, becomes) a direct or indirect Subsidiary
of
another Person which has Registered Common Shares outstanding, “Principal
Party” shall refer to such other Person; (2) if the Common Shares of such
Person are not Registered Common Shares, or such Common Shares are deregistered
as a consequence of any merger described in Section 13(a) hereof, or such Person
is not a corporation, and such Person is (or, upon consummation of any merger
described in Section 13(a) hereof, becomes) a direct or indirect Subsidiary
of
another Person but is not a direct or indirect Subsidiary of another Person
which has Registered Common Shares
outstanding,
“Principal Party” shall refer to the ultimate parent entity of such
first-mentioned Person; (3) if the Common Shares of such Person are not
Registered Common Shares, or such Common Shares are deregistered as a
consequence of any merger described in Section 13(a) hereof, or such Person
is
not a corporation, and such Person is (or, upon consummation of any merger
described in Section 13(a) hereof, becomes) directly or indirectly controlled
by
more than one Person, and one or more of such latter Persons have Registered
Common Shares outstanding, “Principal Party” shall refer to whichever of
such latter Persons is the issuer of outstanding Registered Common Shares having
the greatest aggregate current market value (determined pursuant to Section
11(d)(i) hereof); or (4) if the Common Shares of such Person are not Registered
Common Shares, or such Common Shares are deregistered as a consequence of any
merger described in Section 13(a) hereof, or such Person is not a corporation,
and such Person is (or, upon consummation of any merger described in Section
13(a) hereof, becomes) directly or indirectly controlled by more than one
Person, and none of such latter Persons have Registered Common Shares
outstanding, “Principal Party” shall refer to whichever ultimate parent
entity is the entity having the greatest net assets;
provided,
further, however, that if under the foregoing provisions of this
Section 13(b) there shall for any reason be more than one Principal Party,
“Principal Party” shall refer to whichever of such Persons is the issuer
of outstanding Registered Common Shares having the greatest aggregate current
market value (determined pursuant to Section 11(d)(i) hereof) or, if none of
such Persons has Registered Common Shares outstanding, whichever of such Persons
is the entity having the greatest net assets.
(c) Notwithstanding
anything herein to the contrary, if the Principal Party as determined pursuant
to paragraph (b) above is not a corporation, proper provision shall be made
so
that such Principal Party shall create or otherwise make available for purposes
of the exercise of the Rights in accordance with the terms of this Agreement,
a
type or types of securities having a fair market value (as determined by a
nationally recognized investment banking firm selected by the Board of
Directors) equal to at least the value of the Common Shares which each holder
of
a Right would have been entitled to receive if such Principal Party had been
a
corporation.
(d) The
Company shall not consummate any such consolidation, merger, sale or transfer
unless (1) at the time of and after such consummation the Principal Party shall
have a sufficient number of authorized Common Shares which have not been issued
or reserved for issuance to permit the exercise in full of the Rights in
accordance with this Section 13 and (2) prior to such consummation the Company
and such Principal Party shall have executed and delivered to the Rights Agent
a
supplemental agreement providing for the terms set forth in this Section 13
and
further providing that, as soon as practicable after the date of any
consolidation, merger or sale or transfer of assets mentioned in paragraph
(a)
of this Section 13, the Principal Party will
(i) prepare
and file a registration statement under the Securities Act with respect to
the
Rights and the securities purchasable upon exercise of the Rights on an
appropriate form, and will use its best efforts to cause such registration
statement to (A) become effective as soon as practicable after such filing
and
(B) remain effective (with a prospectus at all times meeting
the
requirements
of the Securities Act) until the Final Expiration Date, and similarly comply
with applicable state securities or “blue sky” laws; and
(ii) deliver
to holders of the Rights historical financial statements for the Principal
Party
and each of its Affiliates which comply in all respects with the requirements
for registration on Form 10 under the Exchange Act.
Section
14. Additional
Covenants.
(a) Except
as expressly provided herein, no adjustment to the Purchase Price, the number
of
Preferred Shares or other securities for which a Right is exercisable or the
number of Rights outstanding (except as permitted by Section 24 or Section
25
hereof) or any similar adjustment shall be made or be effective if such
adjustment would have the effect of reducing or limiting the benefits the
holders of the Rights would have had absent such adjustment, including, without
limitation, the benefits under Section 11(a)(ii) and Section 13 hereof, unless
the terms of this Agreement are amended so as to preserve such
benefits.
(b) The
Company covenants and agrees that, following the Share Acquisition Date, except
as permitted by Section 25 hereof, it shall not, directly or indirectly, take
any action the purpose or effect of which is to eliminate or otherwise diminish
in any material respect the benefits intended to be afforded by the
Rights.
(c) The
Company covenants and agrees that, following the Share Acquisition Date, it
shall not consummate any of the transactions described in clauses (x), (y)
and
(z) of Section 13(a) hereof if (i) at the time of or after such consummation
there are or would be any charter or by-law provisions or any rights, warrants
or other instruments or securities outstanding or agreements in effect (whether
of the Company or any other Person) or any other action taken (whether by the
Company or any other Person) the purpose or effect of which is to eliminate
or
otherwise diminish in any material respect the benefits intended to be afforded
by the Rights or (ii) the stockholders of the Principal Party shall
have received, either prior to, simultaneously with, or after the consummation
of such transaction, a distribution of Rights previously owned by the Principal
Party or any of its Affiliates and Associates.
(d) The
Company further covenants and agrees that, following the Share Acquisition
Date,
it shall not consummate any of the transactions described in clauses (x), (y)
and (z) of Section 13(a) hereof unless prior thereto the Company and the
Principal Party shall have executed and delivered to the Rights Agent a
supplemental agreement evidencing compliance with paragraph (c) above and
further providing that the Principal Party covenants and agrees that it shall
not, directly or indirectly, take any action the purpose or effect of which
is
to eliminate or otherwise diminish in any material respect the benefits intended
to be afforded by the Rights. The provisions of this paragraph (d)
and paragraph (c) above shall similarly apply to successive mergers,
consolidations, sales or other transfers.
Section
15. Fractional
Rights and Fractional Shares. (a) The Company shall
not be required to issue fractions of Rights or to distribute Right Certificates
which evidence fractional Rights. In lieu of such fractional Rights,
there shall be paid to the registered holders of
the
Right
Certificates with regard to which such fractional Rights would otherwise be
issuable, an amount in cash equal to the same fraction of the current market
value of a whole Right. For the purposes of this Section 15(a), the
current market value of a whole Right shall be the closing price of the Rights
for the Trading Day immediately prior to the date on which such fractional
Rights would have been otherwise issuable. The closing price of the
Rights for any day shall be the last sale price, regular way, or, in case no
such sale takes place on such day, the average of the closing bid and asked
prices, regular way, in either case as reported in the principal consolidated
transaction reporting system with respect to securities listed or admitted
to
trading on the New York Stock Exchange or, if the Rights are not listed or
admitted to trading on the New York Stock Exchange, as reported in the principal
consolidated transaction reporting system with respect to securities listed
on
the principal national securities exchange on which the Rights are listed or
admitted to trading or, if the Rights are not listed or admitted to trading
on
any national securities exchange, the last quoted price or, if not so quoted,
the average of the high bid and low asked prices in the over-the-counter market,
as reported by the system then in use or, if on any such date the Rights are
not
so quoted, the average of the closing bid and asked prices as furnished by
a
professional market maker making a market in the Rights selected by the Board
of
Directors. If on any such date no such market maker is making a
market in the Rights the fair value of the Rights on such date as determined
in
good faith by the Board of Directors shall be used and shall be conclusive
for
all purposes.
(b) The
Company shall not be required to issue fractions of Preferred Shares (other
than
fractions which are integral multiples of one one-hundredth of a Preferred
Share) upon exercise of the Rights or to distribute certificates which evidence
fractional Preferred Shares (other than fractions which are integral multiples
of one one-hundredth of a Preferred Share). Fractions of Preferred
Shares in integral multiples of one one-hundredth of a Preferred Share may,
at
the election of the Company, be evidenced by depositary receipts, pursuant
to an
appropriate agreement between the Company and a depositary selected by it,
provided that such agreement shall provide that the holders of such depositary
receipts shall have all the rights, privileges and preferences to which they
are
entitled as beneficial owners of the Preferred Shares represented by such
depositary receipts. In lieu of fractional Preferred Shares that are
not integral multiples of one one-hundredth of a Preferred Share, the Company
may pay to the registered holders of Right Certificates at the time such Rights
are exercised as herein provided an amount in cash equal to the same fraction
of
the current market value of one one-hundredth of a Preferred
Share. For purposes of this Section 15(b), the current market value
of one one-hundredth of a Preferred Share shall be one one-hundredth of the
closing price of a Preferred Share (as determined pursuant to Section 11(d)(ii)
hereof) for the Trading Day immediately prior to the date of such
exercise.
(c) The
holder of a Right by the acceptance of the Right expressly waives his right
to
receive any fractional Rights or any fractional shares upon exercise of a Right,
except as permitted by this Section 15.
Section
16. Rights
of Action. All rights of action in respect of this Agreement are
vested in the respective registered holders of the Right Certificates (and,
prior to the Distribution Date, the registered holders of the Common Shares
and
the registered holders of the Class B Shares); and any registered holder of
any
Right Certificate (or, prior to the Distribution Date, of any of the Common
Shares and/or Class B Shares), without the consent of the
Rights
Agent
or
of the holder of any other Right Certificate (or, prior to the Distribution
Date, of any of the Common Shares and/or Class B Shares), may, in his own behalf
and for his own benefit, enforce, and may institute and maintain any suit,
action or proceeding against the Company to enforce, or otherwise act in respect
of, his right to exercise the Rights evidenced by such Right
Certificate in the manner provided in such Right Certificate and in this
Agreement. Without limiting the foregoing or any remedies available
to the holders of Rights, it is specifically acknowledged that the holders
of
Rights would not have an adequate remedy at law for any breach of this Agreement
and will be entitled to specific performance of the obligations under, and
injunctive relief against actual or threatened violations of the obligations
of
any Person subject to, this Agreement.
Section
17. Agreement
of Rights Holders. Every holder of a Right by accepting the same
consents and agrees with the Company and the Rights Agent and with every other
holder of a Right that:
(a) prior
to the Distribution Date, the Rights will be transferable only in connection
with the transfer of the Common Shares and/or Class B Shares;
(b) after
the Distribution Date, the Right Certificates will be transferable only on
the
registry books of the Rights Agent if surrendered at the office or offices
of
the Rights Agent designated for such purposes, duly endorsed or accompanied
by a
proper instrument of transfer;
(c) subject
to Sections 6(a) and 7(f) hereof, the Company and the Rights Agent may deem
and
treat the Person in whose name the Right Certificate (or, prior to the
Distribution Date, the associated Common Shares or Class B Shares certificate)
is registered as the absolute owner thereof and of the Rights evidenced thereby
(notwithstanding any notations of ownership or writing on the Right Certificate
or the associated Common Shares or Class B Shares certificate made by anyone
other than the Company or the Rights Agent) for all purposes whatsoever, and
neither the Company nor the Rights Agent, subject to the last sentence of
Section 7(e) hereof, shall be required to be affected by any notice to the
contrary; and
(d) notwithstanding
anything in this Agreement to the contrary, neither the Company nor the Rights
Agent shall have any liability to any holder of a Right or other Person as
a
result of its inability to perform any of its obligations under this Agreement
by reason of any preliminary or permanent injunction or other order, decree
or
ruling issued by a court of competent jurisdiction or by a governmental,
regulatory or administrative agency or commission, or any statute, rule,
regulation or executive order promulgated or enacted by any governmental
authority, prohibiting or otherwise restraining performance of such obligation;
provided, however, the Company must use its best
efforts to have any such order, decree or ruling lifted or otherwise overturned
as soon as possible.
Section
18. Right
Certificate Holder Not Deemed a Stockholder. No holder, as such,
of any Right Certificate shall be entitled to vote, receive dividends or be
deemed for any purpose the holder of the Preferred Shares or any other
securities of the Company which may at any time be issuable on the exercise
of
the Rights represented thereby, nor shall anything contained herein or in any
Right Certificate be construed to confer upon the holder of any
Right
Certificate,
as such, any of the rights of a stockholder of the Company or any right to
vote
for the election of directors or upon any matter submitted to stockholders
at
any meeting thereof, or to give or withhold consent to any corporate action,
or
to receive notice of meetings or other actions affecting stockholders (except
as
provided in Section 26 hereof), or to receive dividends or subscription rights,
or otherwise, until the Right or Rights evidenced by such Right Certificate
shall have been exercised in accordance with the provisions hereof.
Section
19. Concerning
the Rights Agent.
(a) The
Company agrees to pay to the Rights Agent reasonable compensation for all
services rendered by it hereunder and, from time to time, on demand of the
Rights Agent, its reasonable expenses and counsel fees and other disbursements
incurred in the administration and execution of this Agreement and the exercise
and performance of its duties hereunder. The Company also agrees to
indemnify the Rights Agent for, and to hold it harmless against, any loss,
liability, or expense, incurred without gross negligence, bad faith or willful
misconduct on the part of the Rights Agent, for anything done or omitted by
the
Rights Agent in connection with the acceptance and administration of this
Agreement, including the costs and expenses of defending against any claim
of
liability hereunder. In no case will the Rights Agent be liable for
special, indirect, incidental or consequential loss or damages of any kind
whatsoever (including, but not limited to, lost profits), even if the Rights
Agent has been advised of the possibility of such damages. The
indemnity provided under this Section 19 shall survive the termination of this
Agreement and the exercise or expiration of the Rights.
(b) The
Rights Agent shall be protected and shall incur no liability for or in respect
of any action taken, suffered or omitted by it in connection with its
administration of this Agreement in reliance upon any Right Certificate or
certificate for any of the Common Shares or Class B Shares or for other
securities of the Company, instrument of assignment or transfer, power of
attorney, endorsement, affidavit, letter, notice, direction, instruction,
consent, certificate, statement, or other paper or document believed by it
to be
genuine and to be signed, executed and, where necessary, verified or
acknowledged, by the proper person or persons.
Section
20. Merger
or Consolidation or Change of Name of Rights Agent.
(a) Any
Person into which the Rights Agent or any successor Rights Agent may be merged
with or with which it may be consolidated, or any corporation resulting from
any
merger or consolidation to which the Rights Agent or any successor Rights Agent
shall be a party, or any Person succeeding to the corporate trust or stock
transfer business of the Rights Agent or any successor Rights Agent, shall
be
the successor to the Rights Agent under this Agreement without the execution
or
filing of any paper or any further act on the part of any of the parties hereto,
provided that such Person would be eligible for appointment as a successor
Rights Agent under the provisions of Section 22 hereof. In case at
the time such successor Rights Agent shall succeed to the agency created by
this
Agreement, any of the Right Certificates shall have been countersigned but
not
delivered, any such successor Rights Agent may adopt the countersignature of
the
predecessor Rights Agent and deliver such Right Certificates so countersigned;
and in case at such time any of the Right Certificates shall not have been
countersigned, any successor Rights Agent may countersign such Right
Certificates either in the name of the predecessor Rights Agent or in the name
of the successor Rights Agent;
and
in
all such cases such Right Certificates shall have the full force provided in
the
Right Certificates and in this Agreement.
(b) In
case at any time the name of the Rights Agent shall be changed and at such
time
any of the Right Certificates shall have been countersigned but not delivered,
the Rights Agent may adopt the countersignature under its prior name and deliver
Right Certificates so countersigned; and in case at such time any of the Right
Certificates shall not have been countersigned, the Rights Agent may countersign
such Right Certificates either in its prior name or in its changed name; and
in
all such cases such Right Certificates shall have the full force provided in
the
Right Certificates and in this Agreement.
Section
21. Duties
of Rights Agent. The Rights Agent undertakes the duties and
obligations imposed by this Agreement upon the following terms and conditions,
by all of which the Company and the holders of Right Certificates, by their
acceptance thereof, shall be bound:
(a) The
Rights Agent may consult with legal counsel (who may be legal counsel for the
Company), and the opinion of such counsel shall be full and complete
authorization and protection to the Rights Agent as to any action taken or
omitted by it in good faith and in accordance with such opinion.
(b) Whenever
in the performance of its duties under this Agreement the Rights Agent shall
deem it necessary or desirable that any fact or matter be proved or established
by the Company prior to taking or suffering any action hereunder, such fact
or
matter (unless other evidence in respect thereof be herein specifically
prescribed) may be deemed to be conclusively proved and established by a
certificate signed by any one of the President, an Executive Vice President,
the
Treasurer or the Secretary of the Company and delivered to the Rights Agent;
and
such certificate shall be full authorization to the Rights Agent for any action
taken or suffered in good faith by it under the provisions of this Agreement
in
reliance upon such certificate.
(c) The
Rights Agent shall be liable hereunder only for its own gross negligence, bad
faith or willful misconduct.
(d) The
Rights Agent shall not be liable for or by reason of any of the statements
of
fact or recitals contained in this Agreement or in the Right Certificates or
be
required to verify the same (except as to its countersignature thereof), but
all
such statements and recitals are and shall be deemed to have been made by the
Company only.
(e) The
Rights Agent shall not be under any responsibility in respect of the validity
of
this Agreement or the execution and delivery hereof (except the due execution
hereof by the Rights Agent) or in respect of the validity or execution of any
Right Certificate (except its countersignature thereof); nor shall it be
responsible for any breach by the Company of any covenant or condition contained
in this Agreement or in any Right Certificate; nor shall it be responsible
for
any adjustment required under the provisions of Sections 11 or 13 hereof or
responsible for the manner, method or amount of any such adjustment or the
ascertaining of the existence of facts that would require any such adjustment
(except with respect to the exercise of
Rights
evidenced by Right Certificates after actual notice of any such adjustment);
nor
shall it by any act hereunder be deemed to make any representation or warranty
as to the authorization or reservation of any Common Shares or Preferred Shares
to be issued pursuant to this Agreement or any Right Certificate or as to
whether any Common Shares or Preferred Shares will, when so issued, be validly
authorized and issued, fully paid and nonassessable.
(f) The
Company agrees that it will perform, execute, acknowledge and deliver or cause
to be performed, executed, acknowledged and delivered all such further and
other acts, instruments and assurances as may reasonably be required
by the Rights Agent for the carrying out or performing by the Rights Agent
of
the provisions of this Agreement.
(g) The
Rights Agent is hereby authorized and directed to accept instructions with
respect to the performance of its duties hereunder from any one of the
President, an Executive Vice President, the Secretary or the Treasurer of the
Company, and to apply to such officers for advice or instructions in connection
with its duties, and it shall not be liable for any action taken or suffered
to
be taken by it in good faith in accordance with instructions of any such
officer.
(h) The
Rights Agent and any stockholder, director, officer or employee of the Rights
Agent may buy, sell or deal in any of the Rights or other securities of the
Company or become pecuniarily interested in any transaction in which the Company
may be interested, or contract with or lend money to the Company or otherwise
act as fully and freely as though it were not Rights Agent under this
Agreement. Nothing herein shall preclude the Rights Agent from acting
in any other capacity for the Company or for any other Person.
(i) The
Rights Agent may execute and exercise any of the rights or powers hereby vested
in it or perform any duty hereunder either itself or by or through its attorneys
or agents, and the Rights Agent shall not be answerable or accountable for
any
act, default, neglect or misconduct of any such attorneys or agents for any
loss
to the Company resulting from any such act, default, neglect or misconduct,
provided reasonable care was exercised in the selection and continued employment
thereof.
(j) If,
with respect to any Right Certificate surrendered to the Rights Agent for
exercise or transfer, the certificate attached to the form of assignment or
form
of election to purchase, as the case may be, has either not been completed
or
indicates an affirmative response to any item therein, the Rights Agent shall
not take any further action with respect to such requested exercise or transfer
without first consulting with the Company.
Section
22. Change
of Rights Agent. The Rights Agent or any successor Rights Agent
may resign and be discharged from its duties under this Agreement upon thirty
(30) days’ notice in writing mailed to the Company and, if instructed by the
Company, to each transfer agent of the Common Shares, Class B Shares and
Preferred Shares by registered or certified mail, and, at the expense of the
Company, to the holders of the Right Certificates by first-class
mail. In the event the transfer agency relationship in effect between
the Company and the Rights Agent terminates, the Rights Agent will be deemed
to
resign automatically on the effective date of such termination; and any required
notice will be sent by the Company. The Company may remove the Rights
Agent or any successor Rights Agent upon thirty (30) days’
notice
in
writing, mailed to the Rights Agent or successor Rights Agent, as the case
may
be, and to each transfer agent of the Common Shares, Class B Shares and
Preferred Shares by registered or certified mail, and to the holders of the
Right Certificates by first-class mail. If the Rights Agent shall
resign or be removed or shall otherwise become incapable of acting, the Company
shall appoint a successor to the Rights Agent. If the Company shall
fail to make such appointment within a period of thirty (30) days after giving
notice of such removal or after it has been notified in writing of such
resignation or incapacity by the resigning or incapacitated Rights Agent or
by
the holder of a Right Certificate (who shall, with such notice, submit his
Right
Certificate for inspection by the Company), then the registered holder of any
Right Certificate may apply to any court of competent jurisdiction for the
appointment of a new Rights Agent. Any successor Rights Agent,
whether appointed by the Company or by such a court, shall be a Person organized
and doing business under the laws of the United States or any State of the
United States, in good standing, having a principal office in the State of
New
York, which is authorized under such laws to exercise corporate trust or stock
transfer powers and is subject to supervision or examination by federal or
state
authority and which has (or whose Affiliate has) at the time of such Person’s
appointment as Rights Agent a combined capital and surplus of at least $100
million. After appointment, the successor Rights Agent shall be
vested with the same powers, rights, duties and responsibilities as if it had
been originally named as Rights Agent without further act or deed; but the
predecessor Rights Agent shall deliver and transfer to the successor Rights
Agent any property at the time held by it hereunder, and execute and deliver
any
further assurance or conveyance, and perform any other act or deed, necessary
for the purpose. Not later than the effective date of any such
appointment the Company shall file notice thereof in writing with the
predecessor Rights Agent and each transfer agent of the Common Shares, Class
B
Shares and the Preferred Shares, and mail a notice thereof in writing to the
registered holders of the Right Certificates. Failure to give any
notice provided for in this Section 22, however, or any defect therein, shall
not affect the legality or validity of the resignation or removal of the Rights
Agent or the appointment of the successor Rights Agent, as the case may
be.
Section
23. Issuance
of New Right Certificates. Notwithstanding any of the provisions
of this Agreement or of the Rights to the contrary, the Company may, at its
option, issue new Right Certificates evidencing Rights in such form as may
be
approved by its Board of Directors to reflect any adjustment or change in the
Purchase Price and/or the number or kind or class of shares or other securities
or property purchasable under the Right Certificates made in accordance with
the
provisions of this Agreement. In addition, in connection with the
issuance or sale of Common Shares or Class B Shares following the Distribution
Date and prior to the earliest of the Redemption Date, the Exchange Date and
the
Final Expiration Date, the Company (a) shall, with respect to Common Shares
or
Class B Shares so issued or sold pursuant to the exercise of stock options,
or
pursuant to the terms of other awards under any employee or director benefit
plan or arrangement, outstanding, granted or awarded as of the Distribution
Date, or upon the exercise, conversion or exchange of securities issued by
the
Company prior to such date, and (b) may, in any other case, if deemed necessary
or appropriate by a majority of the Board of Directors, issue Right Certificates
representing the appropriate number of Rights in connection with such issuance
or sale; provided, however, that (i) no such Right Certificate
shall be issued if, and to the extent that, the Company shall be advised by
counsel that such issuance would create a significant risk of material adverse
tax consequences to the Company or the Person to whom such Right Certificates
would be issued and (ii) no such Right Certificate shall
be
issued
if, and to the extent that, appropriate adjustment shall otherwise have been
made in lieu of the issuance thereof.
Section
24. Redemption. (a) The
Board of Directors may, at its option, at any time prior to such time as any
Person becomes an Acquiring Person, redeem all but not less than all the then
outstanding Rights at a redemption price of $.01 per Right, appropriately
adjusted to reflect any stock split, stock dividend, reclassification or similar
transaction occurring after the date hereof (such redemption price being
hereinafter referred to as the “Redemption Price”). The
redemption of the Rights may be made effective at such time, on such basis
and
with such conditions as the Board of Directors in its sole discretion may
establish. Without limiting the generality of the foregoing, the
Company may, at its option, pay the Redemption Price in cash, Common Shares
(based on the “current market price,” as defined in Section 11(d)(i)
hereof, of the Common Shares at the time of redemption) or any other form of
consideration deemed appropriate by the Board of Directors.
(b) Immediately
upon the action of the Board of Directors ordering the redemption of the Rights
(or at such later time as the Board of Directors may establish for the
effectiveness of such redemption), and without any further action and without
any notice, the right to exercise the Rights will terminate and the only right
thereafter of the holders of Rights shall be to receive the Redemption
Price. The Company shall promptly give public notice of any such
redemption; provided, however, that the failure to give or any
defect in such notice shall not affect the validity of such
redemption. Within ten (10) days after the action of the Board of
Directors ordering the redemption of the Rights, the Company shall give notice
of such redemption to the Rights Agent and the holders of the then outstanding
Rights by mailing such notice to the Rights Agent and to all such holders at
their last address as it appears upon the registry books of the Rights Agent
or,
prior to the Distribution Date, on the registry books of the transfer agent
for
the Common Shares and Class B Shares. Any notice which is mailed in
the manner herein provided shall be deemed given, whether or not the holder
receives the notice. Each such notice of redemption will state the
method by which the payment of the Redemption Price will be made.
(c) Neither
the Company nor any of its Subsidiaries may redeem, acquire or purchase for
value any Rights at any time in any manner except (i) pursuant to a redemption
in accordance with this Section 24 or an exchange pursuant to Section 25 hereof
or (ii) in connection with the purchase or other acquisition of Common Shares
or
Class B Shares prior to the Distribution Date (including, without limitation,
any Class B Shares that are converted into Common Shares in accordance with
their terms).
Section
25. Exchange.
(a) Subject
to paragraph (c) of this Section 25, the Board of Directors may, at its option,
at any time following such time as any Person becomes an Acquiring Person,
exchange all but not less than all of the then outstanding and exercisable
Rights (which shall not include Rights that have become void pursuant to the
provisions of Section 7(e) hereof) for Common Shares at an exchange ratio of
one
Common Share per Right, appropriately adjusted to reflect any stock split,
stock
dividend, reclassification or similar transaction occurring after the date
hereof (such exchange being hereinafter referred to as the “Exchange” and
such exchange
ratio
being hereinafter referred to as the “Exchange
Ratio”). Notwithstanding the foregoing, the Board of Directors
shall not be empowered to effect the Exchange at any time after any Person
(other than any Excluded Person), together with all Affiliates and Associates
of
such Person, becomes the Beneficial Owner of Common Shares aggregating 50%
or
more of the Common Shares then outstanding.
(b) Immediately
upon the action of the Board of Directors authorizing the Exchange, and without
any further action and without any notice, the right to exercise the Rights
shall terminate and the only right thereafter of a holder of Rights included
in
the Exchange shall be to receive that number of Common Shares equal to the
number of Rights held by such holder multiplied by the Exchange
Ratio. The Company shall promptly give public notice of the Exchange;
provided, however, that the failure to give or any defect in such
notice shall not affect the validity of the Exchange. Within ten (10)
days after the effectiveness of the Exchange pursuant to the first sentence
of
this Section 25(b), the Company shall mail a notice of Exchange to the
Rights Agent and the holders of such Rights at their last addresses as they
appear upon the registry books of the Rights Agent. Any notice which
is mailed in the manner herein provided shall be deemed given whether or not
the
holder receives the notice. Each such notice of Exchange will state
the method by which the Exchange will be effected.
(c) In
the event that the number of Common Shares which are authorized by the Company’s
Certificate of Incorporation but not outstanding or reserved for issuance for
purposes other than upon exercise of the Rights are not sufficient to permit
the
Exchange, the Exchange Ratio shall equal one Common Stock Equivalent (in lieu
of
one Common Share) per Right. Alternatively, the Board of Directors
may, at its option, determine that the Company shall (i) issue Common
Shares in the Exchange to the extent Common Shares are available and
(ii) utilize Common Stock Equivalents in the Exchange as provided above to
the extent Common Shares are not available, in which case such Common Shares
shall be allocated on such basis as the Board of Directors determines pursuant
to Section 30 hereof.
(d) The
Company shall not be required to issue fractions of Common Shares or to
distribute certificates which evidence fractional Common Shares. In
lieu of such fractional shares, there shall be paid to the registered holders
of
the Right Certificates with regard to which such fractional shares would
otherwise be issuable, an amount in cash equal to the same fraction of the
current market value of one Common Share. For the purposes of this
paragraph (d), the current market value of one Common Share shall be the closing
price of a Common Share (as determined pursuant to Section 11(d)(i) hereof)
for
the Trading Day immediately prior to the Exchange Date.
Section
26. Notice
of Certain Events.
(a) In
case the Company shall propose, at any time after the Distribution Date, (i)
to
pay any dividend payable in stock of any class to the holders of Preferred
Shares or to make any other distribution to the holders of Preferred Shares
(other than a regular quarterly cash dividend), (ii) to offer to the holders
of
Preferred Shares rights, options or warrants to subscribe for or to purchase
any
additional Preferred Shares at less than the current market price of the
Preferred Shares, or shares of stock of any class or any other securities,
rights or options, (iii) to effect any reclassification of its Preferred
Shares (other than a reclassification
involving
only the subdivision of outstanding Preferred Shares), (iv) to effect any
consolidation or merger into or with, or to effect any sale or other transfer
(or to permit one or more of its Subsidiaries to effect any sale or other
transfer), in one or more transactions, of more than 50% of the assets or
earning power of the Company and its Subsidiaries (taken as a whole) to, any
other Person or Persons, or (v) to effect the liquidation, dissolution or
winding up of the Company, then, in each such case, the Company shall give
to
each holder of a Right Certificate, in accordance with Section 27 hereof, a
notice of such proposed action, which shall specify the record date for the
purposes of such stock dividend, or distribution of rights, options or warrants,
or the date on which such reclassification, consolidation, merger, sale,
transfer, liquidation, dissolution, or winding up is to take place and the
date
of participation therein by the holders of the Preferred Shares, if any such
date is to be fixed, and such notice shall be so given in the case of any action
covered by clause (i) or (ii) above at least twenty (20) days prior to the
record date for determining holders of the Preferred Shares for purposes of
such
action, and in the case of any such other action, at least twenty (20) days
prior to the date of the taking of such proposed action or the date of
participation therein by the holders of the Preferred Shares, whichever shall
be
the earlier.
(b) In
case the event set forth in Section 11(a)(ii) of this Agreement shall occur,
then (i) the Company shall as soon as practicable thereafter give to each holder
of a Right Certificate, in accordance with Section 27 hereof, a notice of the
occurrence of such event, which shall specify the event and the consequences
of
the event to holders of Rights under Section 11(a)(ii) hereof and (ii) all
references in the preceding paragraph to Preferred Shares shall thereafter
be
deemed to refer to Common Shares or, if appropriate, to Common Stock
Equivalents.
Section
27. Notices. Notices
or demands authorized by this Agreement to be given or made by the Rights Agent
or by the holder of any Right Certificate to or on the Company shall be
sufficiently given or made if sent by first-class mail, postage prepaid, or
by
facsimile transmission, addressed as follows (until another address or facsimile
number is filed in writing with the Rights Agent):
Chindex
International, Inc.
▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Subject
to the provisions of Section 22 hereof, any notice or demand authorized by
this
Agreement to be given or made by the Company or by the holder of any Right
Certificate to or on the Rights Agent shall be sufficiently given or made if
sent by first-class mail, postage prepaid, or by facsimile transmission,
addressed as follows (until another address or facsimile number is filed in
writing with the Company):
American
Stock Transfer & Trust Company
▇▇
▇▇▇▇▇▇
▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn: Office
of the General Counsel
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
Notices
or demands authorized by this Agreement to be given or made by the Company
or
the Rights Agent to the holder of any Right Certificate shall be sufficiently
given or made if sent by first-class mail, postage prepaid, addressed to such
holder at the address of such holder as shown on the registry books of the
Company.
Section
28. Supplements
and Amendments. Prior to the Share Acquisition Date, and subject
to the last sentence of this Section 28, the Company and the Rights Agent shall,
if the Company so directs, supplement or amend any provision of this Agreement,
whether or not adverse to the holders of Rights, without any approval of the
holders of Rights. From and after the Share Acquisition Date, and
subject to the last sentence of this Section 28, the Company and the Rights
Agent may from time to time supplement or amend this Agreement without any
approval of the holders of Rights in order (i) to cure any ambiguity, (ii)
to
correct or supplement any provision contained herein which may be defective
or
inconsistent with any other provisions herein, or (iii) to change or supplement
the provisions herein to effectuate the purposes of this Agreement, or to make
any other provisions with respect to the Rights, which, in either such case,
shall not materially adversely affect the interests of the holders of Rights
(other than Acquiring Persons and Affiliates or Associates
thereof). Upon the delivery of a certificate from an appropriate
officer of the Company which states that the proposed supplement or amendment
is
in compliance with the terms of this Section 28, the Rights Agent shall execute
such supplement or amendment; provided, however, that the Rights
Agent may, but shall not be obligated to, enter into any such supplement or
amendment which affects the Rights Agent’s own rights, duties, liabilities or
obligations under this Agreement. Notwithstanding anything contained
in this Agreement to the contrary, no supplement or amendment shall be made
which decreases the Redemption Price.
Section
29. Successors. All
the covenants and provisions of this Agreement by or for the benefit of the
Company or the Rights Agent shall bind and inure to the benefit of their
respective successors and assigns hereunder.
Section
30. Determinations
and Actions by the Board of Directors, etc. The Board of
Directors shall have the exclusive power and authority to administer this
Agreement and to exercise all rights and powers specifically granted to the
Board of Directors or to the Company, or as may be necessary or advisable in
the
administration of this Agreement, including, without limitation, the right
and
power to (i) interpret the provisions of this Agreement, and (ii) make all
determinations deemed necessary or advisable for the administration of this
Agreement (including a determination to redeem or not to redeem the Rights
pursuant to Section 24 hereof, to exchange or not to exchange the Rights
pursuant to Section 25 hereof or to supplement or amend this
Agreement). All such actions, calculations, interpretations and
determinations (including, for purpose of clause (y) below, all omissions with
respect to the foregoing) which are done or made by the Board of Directors
in
good faith, shall
(x)
be
final, conclusive and binding on the Company, the Rights Agent, the holders
of
the Rights and all other parties, and (y) not subject the Board of Directors
to
any liability to the holders of the Rights.
Section
31. Benefits
of this Agreement. Nothing in this Agreement shall be construed
to give to any Person other than the Company, the Rights Agent and the
registered holders of the Right Certificates (and, prior to the Distribution
Date, the Common Shares and Class B Shares) any legal or equitable right, remedy
or claim under this Agreement; but this Agreement shall be for the sole and
exclusive benefit of the Company, the Rights Agent and the registered holders
of
the Right Certificates (and, prior to the Distribution Date, the Common Shares
and Class B Shares).
Section
32. Severability. If
any term, provision, covenant or restriction of this Agreement is held by a
court of competent jurisdiction or other authority to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
Section
33. Governing
Law. This Agreement and each Right Certificate issued hereunder
shall be deemed to be a contract made under the laws of the State of Delaware
and for all purposes shall be governed by and construed in accordance with
the
laws of such State applicable to contracts to be made and performed entirely
within such State.
Section
34. Counterparts. This
Agreement may be executed in any number of counterparts and each of such
counterparts shall for all purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same
instrument.
Section
35. Descriptive
Headings. Descriptive headings of the several Sections of this
Agreement are inserted for convenience only and shall not control or affect
the
meaning or construction of any of the provisions hereof.
[Signature
page follows]
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date and year first above written.
|
CHINDEX
INTERNATIONAL, INC.
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By:
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/s/
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
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Name:
|
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
|
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Title:
|
Chief
Financial Officer
|
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AMERICAN
STOCK TRANSFER & TRUST COMPANY
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By:
|
/s/
▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
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|
Name:
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▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
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Title:
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Vice
President
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FORM
OF
CERTIFICATE
OF DESIGNATIONS
OF
SERIES
A
JUNIOR PARTICIPATING PREFERRED STOCK
OF
CHINDEX
INTERNATIONAL, INC.
CHINDEX
INTERNATIONAL, INC., a corporation organized and existing under the General
Corporation Law of the State of Delaware (the “Corporation”),
DOES
HEREBY CERTIFY:
That
pursuant to authority conferred upon the Board of Directors by the Certificate
of Incorporation of the Corporation, and pursuant to the provisions of
Sections 141 and 151 of the General Corporation Law of the State of
Delaware, said Board of Directors, at a meeting duly called and held on June
4,
2007, duly adopted a resolution providing for the issuance of one series of
the
Corporation’s Preferred Stock, $.01 par value, to be designated
“Series A Junior Participating Preferred Stock,” and fixing the
designation, powers, preferences and relative, participating, optional or other
rights, and the qualifications, limitations or restrictions thereof, which
resolution is as follows:
RESOLVED,
that pursuant and subject to the provisions of Article FOURTH of the
Amended and Restated Certificate of Incorporation of the Corporation, there
is
hereby established a series of Preferred Stock to which the following provisions
shall be applicable:
Series
A Junior Participating Preferred Stock
1. Designation. The
series shall be designated as “Series A Junior Participating Preferred
Stock” (hereinafter “this Series”).
2. Number. The
number of shares of this Series authorized to be issued
is 110,000. Such number may be increased or decreased by
resolution of the Board of Directors; provided, however, that no
decrease shall reduce the number of shares of this Series to a number less
than
that of the shares then outstanding.
3. Dividends
and Distributions.
(A) Subject
to the prior and superior rights of the holders of any shares of any series
of
Preferred Stock ranking prior and superior to this Series with respect to
dividends, the holders of shares of this Series shall be entitled to receive,
when, as and if declared by the Board of Directors out of funds legally
available therefor, quarterly dividends payable in cash on the last day of
March, June, September and December in each year (each such date being referred
to herein as a “Quarterly Dividend Payment Date”) commencing on the first
Quarterly Dividend
Payment
Date after the first issuance of a share or fraction of a share of this Series,
in an amount per share (rounded to the nearest cent) equal to the greater of
(a) $1.00 or (b) subject to the provision for adjustment hereinafter
set forth, 100 times the aggregate per share amount of all cash dividends,
and
100 times the aggregate per share amount (payable in kind) of all non-cash
dividends or other distributions (other than a dividend payable in shares of
Common Stock or a subdivision of the outstanding shares of Common Stock by
reclassification or otherwise), declared on the Common Stock, par value $.01
per
share, of the Corporation (the “Common Stock”) since the immediately
preceding Quarterly Dividend Payment Date or, with respect to the first
Quarterly Dividend Payment Date, since the first issuance of any share or
fraction of a share of this Series. In the event the Corporation
shall at any time after June 14, 2007 declare or pay any dividend on the Common
Stock payable in shares of Common Stock, or effect a subdivision or combination
of the outstanding shares of Common Stock (by reclassification or otherwise
than
by payment of a dividend in shares of Common Stock) into a greater or lesser
number of shares of Common Stock, then in each such case the amount to which
holders of shares of this Series were entitled immediately prior to such event
under clause (b) of the preceding sentence shall be adjusted by multiplying
such amount by a fraction the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were outstanding immediately
prior to such event.
(B) The
Corporation shall declare a dividend or distribution on this Series as provided
in paragraph (A) of this Section immediately after it declares a dividend
or distribution on the Common Stock (other than a dividend payable in shares
of
Common Stock); provided, however, that in the event no dividend or
distribution shall have been declared on the Common Stock during the period
between any Quarterly Dividend Payment Date and the next subsequent Quarterly
Dividend Payment Date, a dividend of $1.00 per share on this Series shall
nevertheless be payable on such subsequent Quarterly Dividend Payment
Date.
(C) Dividends
shall begin to accrue and be cumulative on outstanding shares of this Series
from the Quarterly Dividend Payment Date next preceding the date of issue of
such shares of this Series, unless the date of issue of such shares
is prior to the record date for the first Quarterly Dividend Payment Date,
in
which case dividends on such shares shall begin to accrue from the date of
issue
of such shares, or unless the date of issue is a Quarterly Dividend Payment
Date
or is a date after the record date for the determination of holders of shares
of
this Series entitled to receive a quarterly dividend and before such Quarterly
Dividend Payment Date, in either of which events such dividends shall begin
to
accrue and be cumulative from such Quarterly Dividend Payment
Date. Accrued but unpaid dividends shall not bear
interest. Dividends paid on the shares of this Series in an amount
less than the total amount of such dividends at the time accrued and payable
on
such shares shall be allocated pro rata on a share-by-share basis among all
such
shares at the time outstanding. The Board of Directors may fix a
record date for the determination of holders of shares of this Series entitled
to receive payment of a dividend or distribution declared thereon, which record
date shall be no more than 60 days prior to the date fixed for the payment
thereof.
4. Liquidation,
Dissolution or Winding Up. In the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Corporation (a
“Liquidation”), no distribution shall be made (x) to the holders of
Common Stock or any other shares of stock
ranking
junior (either as to dividends or upon Liquidation) to this Series unless,
prior
thereto, the holders of shares of this Series shall have received an amount
per
share equal to the greater of (i) $100, plus an amount equal to accrued and
unpaid dividends and distributions thereon, whether or not declared, to the
date
of such payment, or (ii) subject to the provision for adjustment hereinafter
set
forth, 100 times the aggregate amount to be distributed per share to holders
of
Common Stock, or (y) to the holders of stock ranking on a parity (either as
to dividends or upon Liquidation) with this Series, except distributions made
ratably on this Series and all other such parity stock in proportion to the
total amounts to which the holders of all such shares are entitled upon such
Liquidation. In the event the Corporation shall at any time after
June 14, 2007 declare or pay any dividend on the Common Stock payable in shares
of Common Stock, or effect a subdivision or combination of the outstanding
shares of Common Stock (by reclassification or otherwise than by payment of
a
dividend in shares of Common Stock) into a greater or lesser number of shares
of
Common Stock, then in each such case the aggregate amount to which holders
of
shares of this Series were entitled immediately prior to such event under
clause (ii) of clause (x) of the preceding sentence shall be adjusted
by multiplying such amount by a fraction the numerator of which is the number
of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
For
purposes of this Certificate, the voluntary sale, lease, exchange or transfer
(for cash, shares of stock, securities or other consideration) of all or
substantially all of the property or assets of the Corporation to, or a
consolidation or merger of the Corporation with, one or more corporations shall
not be deemed to be a Liquidation.
5. Redemption. The
shares of this Series shall not be redeemable.
6. Voting
Rights. The holders of shares of this Series shall have the
following voting rights:
(A) Subject
to the provision for adjustment hereinafter set forth, each share of this Series
shall entitle the holder thereof to 100 votes on all matters submitted to a
vote
of the Common stockholders of the Corporation. In the event the
Corporation shall at any time after June 14, 2007 declare or pay any dividend
on
the Common Stock payable in shares of Common Stock, or effect a subdivision
or
combination of the outstanding shares of Common Stock (by reclassification
or
otherwise than by payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then in each such case
the
number of votes per share to which holders of shares of this Series were
entitled immediately prior to such event shall be adjusted by multiplying such
number by a fraction the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which
is
the number of shares of Common Stock that were outstanding immediately prior
to
such event.
(B) Except
as otherwise provided herein, in the Certificate of Incorporation of the
Corporation or by law, the holders of shares of this Series and the holders
of
shares of Common Stock shall vote together as one class on all matters submitted
to a vote of Common stockholders of the Corporation.
(C) (i) If
at any time dividends on any shares of this Series shall be in arrears in an
amount equal to six full quarterly dividends thereon, the holders of this Series
and all other series of Preferred Stock (in each case to the extent then
entitled pursuant to the terms of such series), voting together as one class,
shall have the exclusive and special right to elect two directors of the
Corporation, and the number of directors constituting the Board of Directors
of
the Corporation shall be increased by two (if not previously increased in
connection with the right of other series of Preferred Stock entitled to vote
together with this Series to elect directors of the Corporation) for such
purpose.
(ii) Whenever
any such right of the holders of this Series shall have vested, such right
may
be exercised initially either at a special meeting of the holders of this Series
and all other series so entitled to vote, if any, called as hereinafter
provided, or at any annual meeting of stockholders, and thereafter at annual
meetings of stockholders. The right of the holders of this Series
voting separately as a class with such other series to elect members of the
Board of Directors of the Corporation as aforesaid shall continue until such
time as all dividends accrued on all shares of this Series shall have been
paid
in full, or declared and set apart for payment, at which time the special right
of the holders of this Series so to vote separately as a class with such other
series for the election of directors shall terminate, subject to revesting
in
the event of each and every subsequent occurrence of an arrearage specified
in
subparagraph (C)(i) above.
(iii) At
any time when such special voting power shall have vested in the holders of
this
Series as provided in the preceding subparagraph (C)(i), the proper officer
of
the Corporation shall, upon the written request of the holders of record of
at
least 10% of the then outstanding voting power of shares of this Series and
all
other series entitled to vote in the election of such directors addressed to
the
Secretary of the Corporation, call a special meeting of the holders of this
Series for the purpose of electing directors pursuant to this paragraph
(C). Such meeting shall be held at the earliest practicable
date. If such meeting shall not be called by the proper officer of
the Corporation within twenty days after personal service of such written
request upon the Secretary of the Corporation, or within twenty days after
mailing the same within the United States of America, by registered mail
addressed to the Secretary of the Corporation at its principal office, then
the
holders of record of at least 10% of the then outstanding voting power of shares
of this Series and all other series entitled to vote in the election of such
directors may designate in writing one of their number to call such meeting
at
the expense of the Corporation, and such meeting may be called by such person
so
designated by giving the notice required for annual meetings of
stockholders. Any holder of this Series so designated shall have
access to the stock books of the Corporation for the purpose of causing meetings
of stockholders to be called pursuant to these
provisions. Notwithstanding the provisions of this subparagraph
(C)(iii), no such special meeting shall be called during the period within
ninety days immediately preceding the date fixed for the next annual meeting
of
stockholders.
(iv) At
any meeting held for the purpose of electing directors at which the holders
of
this Series and any other series of Preferred Stock shall have the special
right
to elect directors as provided in this paragraph (C), the presence, in person
or
by proxy, of the holders of 50% of the voting power of the then outstanding
aggregate number of shares of this Series and such other series shall be
required to constitute a quorum for the election of any director by the holders
of such series. At any such meeting or adjournment thereof, (a) the
absence of a quorum shall not prevent the election of directors other than
those
to be elected by all such series of Preferred Stock voting separately as a
class, and the absence of a quorum for the election of such other directors
shall not prevent the election of the directors to be elected by this Series
and
any other series of Preferred Stock that may be voting with it separately as
a
class, and (b) in the absence of either or both such quorums, the holders of
a
majority of the voting power of the shares present in person or by proxy of
the
stock or stocks which lack a quorum shall have power to adjourn the meeting
for
the election of directors who they are entitled to elect from time to time
without notice other than announcement at the meeting until a quorum shall
be
present.
(v) During
any period when the holders of this Series have the right to vote separately
as
a class for directors as provided in paragraph (C) hereof, (1) the
directors so elected by the holders of the one or more series of Preferred
Stock
entitled to vote for such directors shall continue in office until the next
succeeding annual meeting or until their successors, if any, are elected by
such
holders and qualify or, until termination of the right of the holders of the
one
or more series of Preferred Stock entitled to vote for such directors to vote
separately as a class for directors as provided in paragraph (C) hereof and
(2) vacancies in the Board of Directors shall be filled only by vote of a
majority (even if that be only a single director) of the remaining directors
theretofore elected by the holders of the one or more series of Preferred Stock
which elected the directors whose office shall have become vacant or if there
be
no such remaining director, directors to fill such vacancies shall be elected
by
the holders of the one or more series of Preferred Stock entitled to vote for
such directors at a special meeting called pursuant to the provisions of
paragraph (C) hereof. Immediately upon any termination of the right
of the holders of this Series and any other series of Preferred Stock to vote
separately as a class for directors as provided in paragraph (C) hereof, the
term of office of the directors then in office so elected by the holders of
this
Series and any such other series shall terminate. Whenever the term
of office of the directors so elected by the holders of this Series and any
such
other series shall terminate and the special voting power vested in the holders
of this Series and any such other series as provided in paragraph
(C) hereof shall have terminated, the number of directors shall be such
number as may be provided for in the by-laws irrespective of any increase made
pursuant to the provisions of paragraph (C).
(D) So
long as any shares of this Series are outstanding, the Corporation shall not,
without the consent of the holders of two-thirds of the outstanding shares
of
this Series, given by such holders as one class, and given by vote in person
or
by proxy at a meeting called
for
that
purpose or given in writing, amend the Certificate of Incorporation or adopt
or
amend any resolutions of the Board of Directors to alter or change the powers,
preferences or special rights of this Series so as to affect them
adversely.
(E) Except
as provided herein, in the Certificate of Incorporation of the Corporation
or by
law, holders of shares of this Series shall have no special voting rights and
their consent shall not be required for taking any corporate
action.
7. Certain
Restrictions.
(A) Whenever
quarterly dividends or other dividends or distributions payable on this Series
as provided in Section 3 are in arrears, thereafter and until all accrued and
unpaid dividends and distributions, whether or not declared, on shares of this
Series outstanding shall have been paid in full, the Corporation shall
not:
(i) declare
or pay dividends on, make any other distributions on, or redeem or purchase
or
otherwise acquire for consideration any shares of Common Stock, any shares
of
Class B Common Stock, par value $.01 per share, of the Corporation, or any
other
shares of stock ranking junior (either as to dividends or upon Liquidation)
to
this Series;
(ii) declare
or pay dividends on or make any other distributions on any shares of stock
ranking on a parity (either as to dividends or upon Liquidation) with this
Series, except dividends paid ratably on this Series and all such parity stock
on which dividends are payable or in arrears in proportion to the total amounts
to which the holders of all such shares are then entitled;
(iii) redeem
or purchase or otherwise acquire for consideration shares of any stock ranking
on a parity (either as to dividends or upon Liquidation) with this Series;
provided, however, that the Corporation may at any time redeem,
purchase or otherwise acquire shares of any such parity stock in exchange for
shares of any stock of the Corporation ranking junior (either as to dividends
or
upon Liquidation) to this Series; or
(iv) purchase
or otherwise acquire for consideration any shares of this Series, or any shares
of stock ranking on a parity (either as to dividends or upon Liquidation) with
this Series, except in accordance with a purchase offer made in writing or
by
publication (as determined by the Board of Directors) to all holders of such
shares upon such terms as the Board of Directors, after consideration of the
respective annual dividend rates and other relative rights and preferences
of
the respective series and classes, shall determine in good faith will result
in
fair and equitable treatment among the respective series or
classes.
(B) The
Corporation shall not permit any subsidiary of the Corporation to purchase
or
otherwise acquire for consideration any shares of stock of the Corporation
unless the Corporation could, under paragraph (A) of this Section 7, purchase
or
otherwise acquire such shares at such time and in such manner.
8. Consolidation,
Merger, etc. In case the Corporation shall enter into any
consolidation, merger, combination or other transaction in which the shares
of
Common Stock are exchanged for or changed into other stock or securities, cash
and/or any other property, then in any such case the shares of this Series
shall
at the same time be similarly exchanged for or changed into an amount per share
(subject to the provision for adjustment hereinafter set forth) equal to 100
times the aggregate amount of stock, securities, cash and/or any other property
(payable in kind), as the case may be, into which or for which each share of
Common Stock is changed or exchanged. In the event the Corporation
shall at any time after June 14, 2007 declare or pay any dividend on the Common
Stock payable in shares of Common Stock, or effect a subdivision or combination
of the outstanding shares of Common Stock (by reclassification or otherwise
than
by payment of a dividend in shares of Common Stock) into a greater or lesser
number of shares of Common Stock, then in each such case the amount set forth
in
the preceding sentence with respect to the exchange or change of shares of
this
Series shall be adjusted by multiplying such amount by a fraction the numerator
of which is the number of shares of Common Stock outstanding immediately after
such event and the denominator of which is the number of shares of Common Stock
that were outstanding immediately prior to such event.
9. Ranking. This
Series shall rank junior to all other series of the Corporation’s Preferred
Stock as to the payment of dividends and the distribution of assets upon
Liquidation, unless the terms of any such series shall provide
otherwise.
10. Fractional
Shares. This Series may be issued in fractions of a share which
shall entitle the holder, in proportion to such holder’s fractional shares, to
exercise voting rights, receive dividends, participate in distributions and
to
have the benefit of all other rights of holders of this Series.
11. Other
Rights. The holders of shares of this Series shall not have any
other preferences or special rights.
IN
WITNESS WHEREOF, the Corporation has caused this certificate to be signed by
,
its _________________, and attested by _________________________, its
Secretary, this _________ day of June, 2007.
|
CHINDEX
INTERNATIONAL, INC.
|
|
|
By:
|
___________________________________________________ |
|
Name:
|
|
|
Title:
|
|
|
Attest
|
|
| ________________________________________________________ | |
|
Name:
|
___________________________________________________ |
|
Title:
|
Secretary
|
EXHIBIT
B TO RIGHTS AGREEMENT
[Form
of
Right Certificate]
|
Certificate
No. R-
|
______________
Rights
|
NOT
EXERCISABLE AFTER JUNE 14, 2017 OR EARLIER IF REDEMPTION OR EXCHANGE
OCCURS. THE RIGHTS ARE SUBJECT TO REDEMPTION AT THE OPTION OF THE
COMPANY AT $.01 PER RIGHT, AND TO EXCHANGE AT THE OPTION OF THE COMPANY, ON
THE
TERMS SET FORTH IN THE RIGHTS AGREEMENT. AS DESCRIBED IN THE RIGHTS
AGREEMENT, RIGHTS BENEFICIALLY OWNED BY (1) AN ACQUIRING PERSON OR ANY
ASSOCIATE OR AFFILIATE THEREOF (AS SUCH TERMS ARE DEFINED IN THE RIGHTS
AGREEMENT), (2) A TRANSFEREE OF AN ACQUIRING PERSON (OR OF ANY SUCH ASSOCIATE
OR
AFFILIATE) WHO BECOMES A TRANSFEREE AFTER THE ACQUIRING PERSON BECOMES SUCH
OR
(3) UNDER CERTAIN CIRCUMSTANCES, A TRANSFEREE OF AN ACQUIRING PERSON (OR OF
ANY SUCH ASSOCIATE OR AFFILIATE) WHO BECOMES A TRANSFEREE BEFORE OR CONCURRENTLY
WITH THE ACQUIRING PERSON BECOMING SUCH, SHALL BECOME NULL AND
VOID.
Right
Certificate
CHINDEX
INTERNATIONAL, 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 June 7, 2007 (the “Rights
Agreement”), between Chindex International, Inc., a Delaware corporation
(the “Company”), and American Stock Transfer & Trust Company (the
“Rights Agent”), to purchase from the Company at any time after the
Distribution Date (as such term is defined in the Rights Agreement) and prior
to
5:00 P.M. (New York City time) on June 14, 2017 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, non-assessable share of Series A Junior
Participating Preferred Stock (the “Preferred Shares”) of the Company, at
a purchase price of $58 per one one-hundredth of a share (the “Purchase
Price”), upon presentation and surrender of this Right Certificate with the
Form of Election to Purchase duly executed. The number of Rights
evidenced by this Right Certificate (and the number of shares which may be
purchased upon exercise thereof) set forth above, and the Purchase Price per
share set forth above, are the number and Purchase Price as of June 14, 2007,
based on the Preferred Shares as constituted at such date.
From
and
after the occurrence of the event described in Section 11(a)(ii) of the Rights
Agreement, if the Rights evidenced by this Right Certificate are beneficially
owned by (i) an Acquiring Person or any Associate or Affiliate thereof (as
such terms are defined in the Rights Agreement), (ii) a transferee of an
Acquiring Person (or of any such Associate or Affiliate) who becomes a
transferee after the Acquiring Person becomes such or (iii) under certain
circumstances, a transferee of an Acquiring Person (or of any such Associate
or
Affiliate) who becomes a transferee before or concurrently with the Acquiring
Person becoming such, such Rights shall become null and void and no holder
hereof shall have any rights with respect to such Rights.
As
provided in the Rights Agreement, the Purchase Price and the number and kind
of
Preferred Shares or other securities 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.
This
Right Certificate is subject to all of the terms, provisions and conditions
of
the Rights Agreement, which terms, provisions and conditions are hereby
incorporated herein by reference and made a part hereof and to which Rights
Agreement reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities hereunder of the
Rights Agent, the Company and the holders of the Right
Certificates. Copies of the Rights Agreement are on file at the
principal executive office of the Company 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 Preferred Shares
as
the Rights evidenced by the Right Certificate or Right Certificates surrendered
shall have entitled such holder to purchase. If this Right
Certificate shall be exercised in part, the holder shall be entitled to receive
upon surrender hereof another Right Certificate or Right Certificates for the
number of whole Rights not exercised.
Subject
to the provisions of the Rights Agreement, the Rights evidenced by this
Certificate (i) may be redeemed by the Company at its option at a redemption
price of $.01 per Right or (ii) may be exchanged by the Company at its option
for Common Shares (or, in certain circumstances, Common Stock Equivalents (as
such term is defined in the Rights Agreement)).
No
fractional Preferred Shares will be issued upon the exercise of any Right or
Rights evidenced hereby (other than fractions which are integral multiples
of
one-hundredth of a Preferred 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 shall be entitled to vote or receive dividends or
be
deemed for any purpose the holder of Preferred Shares or of any other securities
of the Company which may at any time be issuable on the exercise hereof, nor
shall anything contained in the Rights Agreement or herein be construed to
confer upon the holder hereof, as such, any of the rights of a stockholder
of
the Company or any right to vote for the election of directors or upon any
matter submitted to stockholders at any meeting thereof, or to give or withhold
consent to any corporate action, or, to receive notice of meetings or other
actions affecting stockholders (except as provided in the Rights
Agreement), or to receive dividends or subscription rights, or otherwise, until
the Right or Rights evidenced by this Right Certificate shall have been
exercised as provided in the Rights Agreement.
This
Right Certificate shall not be valid or obligatory for any purpose until it
shall have been countersigned by the Rights Agent.
WITNESS
the facsimile signature of the proper officers of the Company and its corporate
seal.
Dated
as
of _______________, ____
|
ATTEST:
|
CHINDEX
INTERNATIONAL, INC.
|
||
| ____________________________________________________________ |
By:
|
_____________________________________________________ | |
|
Secretary
|
Title:
|
||
|
Countersigned:
|
|
|
AMERICAN
STOCK TRANSFER & TRUST
COMPANY
|
|
|
By:
|
_________________________________________________________ |
|
Authorized
Signature
|
|
[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
as of _______________, ____
|
|
| __________________________________________ | |
|
Signature
|
|
|
Signature
Guaranteed:
|
|
Certificate
The
undersigned hereby certifies by checking the appropriate boxes
that:
(1) the
Rights evidenced by this Right Certificate [ ] are [ ] are
not being sold, assigned and transferred by or on behalf of a Person who is
or
was an Acquiring Person or an Affiliate or Associate of an Acquiring Person
(as
such terms are defined in the Rights Agreement);
(2) after
due inquiry and to the best knowledge of the undersigned, the Rights evidenced
by this Right Certificate [ ] are [ ] are not being sold,
assigned and transferred to a Person who is an Acquiring Person, an Affiliate
or
Associate of an Acquiring Person or a nominee of any such Acquiring Person,
Associate or Affiliate;
(3) after
due inquiry and to the best knowledge of the undersigned, it [ ] did [ ] did
not
acquire the Rights evidenced by this Right Certificate from any Person who
is,
was or subsequently became an Acquiring Person or an Affiliate or Associate
of
an Acquiring Person.
Dated
as
of _______________, ____
| _______________________________________________________ |
|
Signature
|
NOTICE
The
signatures to the foregoing Assignment and Certificate must correspond to the
name as written upon the face of this Right Certificate in every particular,
without alteration or enlargement or any change whatsoever.
FORM
OF ELECTION TO PURCHASE
(To
be
executed if holder desires to exercise Rights represented by the Right
Certificate.)
To
CHINDEX INTERNATIONAL, INC.:
The
undersigned hereby irrevocably elects to exercise _________ Rights
represented by this Right Certificate to purchase the Preferred Shares issuable
upon the exercise of the Rights (or such other securities of the Company or
of
any other person which may be issuable upon the exercise of the Rights) and
requests that certificates for such shares be issued in the name
of:
Please
insert social security
or
other
identifying number
| ____________________________________________________________________________________________________________________________________________ |
|
(Please
print name and address)
|
| ____________________________________________________________________________________________________________________________________________ |
If
such
number of Rights shall not be all the Rights evidenced by this Right
Certificate, a new Right Certificate for the balance of such Rights shall be
registered in the name and delivered to:
Please
insert social security
or
other
identifying number
| ____________________________________________________________________________________________________________________________________________ |
|
(Please
print name and address)
|
| ____________________________________________________________________________________________________________________________________________ |
| ____________________________________________________________________________________________________________________________________________ |
Dated
as
of _______________, ____
| _______________________________________________________ |
|
Signature
|
Signature
Guaranteed:
Certificate
The
undersigned hereby certifies by checking the appropriate boxes
that:
(1) the
Rights evidenced by this Right Certificate [ ] are [ ] are
not being exercised by or on behalf of a Person who is or was an Acquiring
Person or an Affiliate or Associate of an Acquiring Person (as such terms are
defined in the Rights Agreement);
(2) after
due inquiry and to the best knowledge of the undersigned, it [ ] did [ ] did
not
acquire the Rights evidenced by this Right Certificate from any Person who
is,
was or subsequently became an Acquiring Person or an Affiliate or Associate
of
an Acquiring Person.
Dated
as
of _______________, ____
| _______________________________________________________ |
|
Signature
|
NOTICE
The
signatures to the foregoing Election to Purchase and Certificate must correspond
to the name as written upon the face of this Right Certificate in every
particular, without alteration or enlargement or any change
whatsoever.
EXHIBIT
C TO RIGHTS AGREEMENT
SUMMARY
OF RIGHTS TO PURCHASE
PREFERRED
STOCK
On
June
4, 2007, the Board of Directors of Chindex International, Inc. (the
“Company”) declared a dividend distribution of one Right for each
outstanding share of Common Stock, par value $.01 per share, of the Company
(the
“Common Shares”), and one Right for each outstanding share of Class B
Common Stock, par value $.01 per share, of the Company (“Class B Shares”)
to stockholders of record on June 14, 2007 (the “Record
Date”). Each Right entitles the registered holder to purchase
from the Company a unit (“Unit”) consisting of one one-hundredth of a
share of Series A Junior Participating Preferred Stock, par value $.01 per
share, of the Company (the “Preferred Shares”), at a price of $58 per
Unit (the “Purchase Price”), subject to adjustment. The
description and terms of the Rights are set forth in a Rights Agreement (the
“Rights Agreement”) between the Company and American Stock Transfer &
Trust Company, as Rights Agent.
Initially,
the Rights will be attached to all certificates representing Common Shares,
and
all certificates representing Class B Shares, then outstanding, and no separate
Right certificates will be distributed. Until the earlier to occur of
(i) 10 days following a public announcement that a person or group of affiliated
or associated persons (other than ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, President and Chief Executive
Officer of the Company; ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Executive Vice President and
Secretary of the Company; and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Executive Vice President, Chief
Financial Officer and Treasurer of the Company; and their affiliates and
associates) has acquired, or obtained the right to acquire, beneficial ownership
of 15% or more of the outstanding Common Shares (an “Acquiring Person”),
or (ii) 10 business days (or such later day as may be determined by action
of the Board of Directors prior to such time as any person or group becomes
an
Acquiring Person) following the commencement of a tender offer or exchange
offer
if, upon consummation thereof, any person or group would be an Acquiring Person
(the earlier of such dates being called the “Distribution Date”), the
Rights will be evidenced, with respect to any of the Common Share certificates
and Class B Share certificates outstanding as of the Record Date, by such
certificate together with a copy of this Summary of Rights. The date
of announcement of the existence of an Acquiring Person referred to in clause
(i) above is hereinafter referred to as the “Share Acquisition
Date.”
The
Rights Agreement provides that, until the Distribution Date, the Rights will
be
transferred with and only with the Common Share certificates and Class B Share
certificates. Until the Distribution Date (or earlier redemption,
exchange or expiration of the Rights), new Common Share certificates and new
Class B Share certificates issued after the Record Date upon transfer or new
issuance of Common Shares or Class B Shares, as the case may be, will contain
a
notation incorporating the Rights Agreement by reference. Until the
Distribution Date (or earlier redemption, exchange or expiration of the Rights),
the surrender for transfer of any certificates for Common Shares or Class B
Shares outstanding as of the Record Date, with or without a copy of this Summary
of Rights attached thereto, will also constitute the transfer of the Rights
associated with the Common Shares or Class B Shares represented by such
certificate. As soon
as
practicable following the Distribution Date, separate certificates evidencing
the Rights (“Right Certificates”) will be mailed to holders of record of
Common Shares and/or Class B Shares on the Distribution Date and, thereafter,
such separate Right Certificates alone will evidence the Rights.
The
Rights are not exercisable until the Distribution Date and will expire at the
close of business on June 14, 2017, unless earlier redeemed or exchanged by
the
Company as described below.
In
the
event that any person or group of affiliated or associated persons becomes
an
Acquiring Person, the Rights Agreement provides that proper provision shall
be
made so that each holder of a Right, except as provided below, shall thereafter
have the right to receive, upon exercise, Common Shares (or, in certain
circumstances, Common Stock Equivalents (as such term is defined in the Rights
Agreement)) having a value equal to two (2) times the exercise price of the
Right. Upon the occurrence of any event described in the preceding
sentence, any Rights beneficially owned by (i) an Acquiring Person or an
Associate or Affiliate (as such terms are defined in the Rights Agreement)
of an
Acquiring Person, (ii) a transferee of an Acquiring Person (or of any such
Associate or Affiliate) who becomes a transferee after the Acquiring Person
becomes such, or (iii) a transferee of an Acquiring Person (or of any such
Associate or Affiliate) who becomes a transferee prior to or concurrently with
the Acquiring Person becoming such and receives such Rights pursuant to either
(A) a transfer (whether or not for consideration) from the Acquiring Person
to
holders of equity interests in such Acquiring Person or to any person with
whom
the Acquiring Person has any continuing agreement, arrangement or understanding
regarding the transferred Rights or (B) a transfer which the Board of
Directors of the Company has determined is part of a plan, agreement,
arrangement or understanding which has as a primary purpose or effect the
avoidance of the Rights Agreement, shall become null and void without any
further action and no holder of such Rights shall have any rights whatsoever
with respect to such Rights, whether under any provision of the Rights Agreement
or otherwise.
At
any
time after the occurrence of the event described in the first sentence of the
preceding paragraph (and prior to the acquisition by any Acquiring Person of
50%
or more of the outstanding Common Shares), the Board of Directors of the Company
may exchange the Rights (except Rights which previously have been voided as
described above), in whole, but not in part, at an exchange ratio of one Common
Share (or, in certain circumstances, one Common Stock Equivalent) per
Right.
In
the
event that, at any time after any person or group of affiliated or associated
persons becomes an Acquiring Person, (i) the Company engages in a merger or
other business combination transaction in which the Company is not the surviving
corporation, (ii) the Company engages in a merger or other business combination
transaction with another person in which the Company is the surviving
corporation, but in which its Common Shares are changed or exchanged, or (iii)
more than 50% of the Company’s assets or earning power is sold or transferred,
the Rights Agreement provides that proper provision shall be made so that each
holder of a Right (except Rights which previously have been voided as described
above) shall thereafter have the right to receive, upon the exercise thereof
at
the then current exercise price of the Right, common stock of the acquiring
company having a value equal to two (2) times the exercise price of the
Right.
The
Purchase Price payable, and the number of Units of Preferred Shares or other
securities issuable, upon exercise of the Rights are subject to adjustment
from
time to time to prevent dilution (i) in the event of a stock dividend on, or
a
subdivision, combination or reclassification of, the Preferred Shares, (ii)
upon
the grant to holders of the Preferred Shares of certain rights, options or
warrants to subscribe for Preferred Shares or convertible securities at less
than the current market price of the Preferred Shares, or (iii) upon the
distribution to holders of the Preferred Shares of evidences of indebtedness,
stock (other than a dividend payable in Preferred Shares), assets or cash
(excluding regular quarterly cash dividends) or of subscription rights, options
or warrants (other than those referred to above). Such terms are also
subject to adjustment in the event of a stock split of the Common Shares or
Class B Shares or a stock dividend on the Common Shares or Class B Shares
payable in Common Shares or Class B Shares or subdivisions, consolidations
or
combinations of the Common Shares or Class B Shares occurring, in any such
case,
prior to the Distribution Date.
With
certain exceptions, no adjustment in the Purchase Price will be required until
cumulative adjustments require an adjustment of at least 1% in such Purchase
Price. No fractional Units will be issued and, in lieu thereof, an
adjustment in cash will be made as provided in the Rights
Agreement.
At
any
time prior to such time as any person or group of affiliated or associated
persons becomes an Acquiring Person, the Board of Directors may redeem the
Rights in whole, but not in part, at a price of $.01 per Right, subject to
adjustment (the “Redemption Price”). Immediately upon the
action of the Board of Directors of the Company ordering the redemption of
the
Rights (or at such later time as the Board of Directors may establish for the
effectiveness of such redemption), the Rights will terminate and the only right
of the holders of Rights will be to receive the Redemption
Price. Until a Right is exercised, the holder thereof, as such, will
have no rights as a stockholder of the Company, including, without limitation,
the right to vote or to receive dividends.
The
terms
of the Rights may be amended by the Company and the Rights Agent, provided
that
following the Share Acquisition Date the amendment does not materially adversely
affect the interests of holders of Rights (other than an Acquiring Person)
and
provided that no amendment shall be made which decreases the Redemption
Price.
A
copy of
the Rights Agreement is being filed with the Securities and Exchange Commission
as an Exhibit to a Current Report on Form 8-K. A copy of the Rights
Agreement will be available free of charge from the Company. This summary
description of the Rights does not purport to be complete and is qualified
in
its entirety by reference to the Rights Agreement, which is incorporated herein
by reference.