EXHIBIT 99(a)
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MANATRON, INC.
and
REGISTRAR AND TRANSFER COMPANY
Rights Agent
Rights Agreement
Dated as of June 2, 1997
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TABLE OF CONTENTS
PAGE
Section 1. Certain Definitions. . . . . . . . . . . . . . . . . . . . . .1
Section 2. Appointment of Rights Agent. . . . . . . . . . . . . . . . . .4
Section 3. Issue of Rights Certificates . . . . . . . . . . . . . . . . .4
Section 4. Form of Rights Certificates. . . . . . . . . . . . . . . . . .6
Section 5. Countersignature and Registration. . . . . . . . . . . . . . .7
Section 6. Transfer, Split Up, Combination and Exchange of Rights
Certificates; Mutilated, Destroyed, Lost or Stolen
Rights Certificates. . . . . . . . . . . . . . . . . . . . . .7
Section 7. Exercise of Rights; Purchase Price; Expiration Date of
Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
Section 8. Cancellation and Destruction of Rights Certificates. . . . . 10
Section 9. Reservation and Availability of Capital Stock. . . . . . . . 10
Section 10. Preferred Stock Record Date. . . . . . . . . . . . . . . . . 12
Section 11. Adjustment of Purchase Price, Number and Kind of Shares
or Number of Rights. . . . . . . . . . . . . . . . . . . . . 12
Section 12. Certificate of Adjusted Purchase Price or Number of
Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 13. Consolidation, Merger or Sale or Transfer of Assets or
Earning Power. . . . . . . . . . . . . . . . . . . . . . . . 23
Section 14. Fractional Rights and Fractional Shares. . . . . . . . . . . 25
Section 15. Rights of Action . . . . . . . . . . . . . . . . . . . . . . 26
Section 16. Agreement of Right Holders . . . . . . . . . . . . . . . . . 26
Section 17. Rights Certificate Holder Not Deemed a Shareholder . . . . . 27
Section 18. Concerning the Rights Agent. . . . . . . . . . . . . . . . . 27
Section 19. Merger or Consolidation or Change of Name of Rights Agent. . 28
Section 20. Duties of Rights Agent . . . . . . . . . . . . . . . . . . . 29
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PAGE
Section 21. Change of Rights Agent . . . . . . . . . . . . . . . . . . . 31
Section 22. Issuance of New Rights Certificates. . . . . . . . . . . . . 32
Section 23. Redemption . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 24. Notice of Certain Events . . . . . . . . . . . . . . . . . . 33
Section 25. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 26. Supplements and Amendments . . . . . . . . . . . . . . . . . 35
Section 27. Successors . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 28. Determinations and Actions by the Board of Directors, etc. . 36
Section 29. Benefits of this Agreement . . . . . . . . . . . . . . . . . 37
Section 30. Severability . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 31. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . 37
Section 32. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 33. Descriptive Headings . . . . . . . . . . . . . . . . . . . . 37
EXHIBIT A - FORM OF CERTIFICATE OF DESIGNATION OF RIGHTS AND PREFERENCES
OF PREFERRED STOCK
EXHIBIT B - FORM OF RIGHTS CERTIFICATE
EXHIBIT C - SUMMARY OF RIGHTS TO PURCHASE SERIES A PREFERRED STOCK
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RIGHTS AGREEMENT
Agreement, dated as of June 2, 1997, between MANATRON, INC., a
Michigan corporation (the "Company"), and REGISTRAR AND TRANSFER COMPANY, a
New Jersey corporation (the "Rights Agent").
P R E A M B L E
The Board of Directors of the Company has authorized and declared
a dividend of one Series A Preferred Stock Purchase Right (the "Rights") on
each share of common stock, no par value, of the Company (the "Common
Stock") outstanding on June 16, 1997 (the "Record Date"), and has
authorized the issuance of one Right with respect to each share of Common
Stock that shall become outstanding between June 16, 1997, and the earlier
of the Distribution Date or the Expiration Date (as such terms are defined
in Sections 3 and 7 hereof), each Right representing the right to purchase
one one-hundredth of a share of Series A Preferred Stock, having the
rights, powers and preferences set forth in the form of Certificate of
Designation, Preferences and Rights of Series A Preferred Stock (the
"Preferred Stock"), attached hereto as Exhibit A, upon the terms and
subject to the conditions hereinafter set forth.
ACCORDINGLY, in consideration of the premises and the mutual
agreements herein set forth, THE PARTIES HEREBY AGREE AS FOLLOWS:
SECTION 1. CERTAIN DEFINITIONS. For purposes of this Agreement, the
following terms have the meanings indicated:
(a) "Acquiring Person" shall mean any Person (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 shares of Common Stock
then outstanding, but shall not include the Company, any wholly
owned subsidiary of the Company or any employee benefit plan of
the Company or any subsidiary of the Company or an entity holding
Common Stock for or pursuant to the terms of any such employee
benefit plan, nor shall the term Acquiring Person include any
Person, or any Affiliates or Associates of such Person, that is
the Beneficial Owner of 15% or more of the shares of Common Stock
outstanding as of the date of this Agreement, unless such a
Beneficial Owner of 15% or more of the shares as of the date of
this Agreement becomes the Beneficial Owner of 20% or more of the
shares of Common Stock then outstanding.
(b) "Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General
Rules and Regulations under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), as in effect on June 2, 1997.
(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, 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 (whether or not
in writing) or upon the exercise of conversion rights,
exchange rights, rights (other than the Rights that are
subject to this Agreement), 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 such Person or any of such Person's Affiliates or
Associates until such tendered securities are accepted for
purchase or exchange;
(ii) Which such Person or any of such Person's
Affiliates or Associates, directly or indirectly, has the
right to vote or dispose of or "beneficial ownership" (as
determined pursuant to Rule 13d-3 of the General Rules and
Regulations under the Exchange Act) of (including pursuant
to any agreement, arrangement or understanding, whether or
not in writing); PROVIDED, HOWEVER, that a Person shall not
be deemed the "Beneficial Owner" of, or to "beneficially
own," any security under this subparagraph (ii) as a result
of an agreement, arrangement or understanding to vote such
security if such agreement, arrangement or understanding (A)
arises solely from a revocable proxy given in response to a
proxy or consent solicitation made pursuant to, and in
accordance with, the applicable provisions of the General
Rules and Regulations under the Exchange Act (the "Rules"),
or (B) is made in connection with, or is to otherwise
participate in, a proxy or consent solicitation made, or to
be made, pursuant to, and in accordance with, the applicable
provisions of the Rules, in either case described in clause
(A) or (B) above, whether or not such agreement, arrangement
or understanding is also then reportable by such Person on
Schedule 13D under the Exchange Act (or any comparable or
successor report); or
(iii) Which are beneficially owned, directly or
indirectly, by any other Person (or any Affiliate or
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Associate thereof) with which such Person (or any of such
Person's Affiliates or Associates) has any agreement,
arrangement or understanding (whether or not in writing),
for the purpose of acquiring, holding, voting (except as set
forth in clauses (A) or (B) as described in the proviso to
subparagraph (ii) of this paragraph (c)) or disposing of any
voting securities of the Company.
Notwithstanding the foregoing, an agreement,
arrangement or understanding (whether or not in writing), or any
communications or discussions, among two or more Persons with
respect to any matter relating to the management, operation or
conduct of the business of the Company, and including discussing
or agreeing on, or communicating with respect to, a position with
respect to any such matter and communicating such discussion,
communication, agreement or position to other Persons including
shareholders of the Company or to the Company shall not
constitute an "agreement, arrangement or understanding" for
purpose of this Section 1(c).
(d) "Business Day" shall mean any day other than a
Saturday, Sunday or a day on which banking institutions in the
state of the principal office of the Rights Agent are authorized
or obligated by law or executive order to close.
(e) "Close of business" on any given date shall mean 5:00
p.m., local time, in the city of the principal office of the
Rights Agent, on such date; PROVIDED, HOWEVER, that if such date
is not a Business Day, it shall mean 5:00 p.m., local time, in
such city, on the next succeeding Business Day.
(f) "Common Stock" when used with reference to the Company
shall mean the Common Stock, no par value, of the Company.
"Common Stock" when used with reference to any Person other than
the Company shall mean the capital stock (or equity interest)
with the greatest voting power of such other Person or, if such
other Person is a subsidiary of another Person, the Person or
Persons which ultimately control such first-mentioned Person.
(g) "Disinterested Director" shall mean (i) any member of
the Board of Directors of the Company, while such Person is a
member of the Board, who is not an Acquiring Person, or an
Affiliate or Associate of an Acquiring Person, or a
representative of an Acquiring Person or of any Affiliate or
Associate thereof, and was a member of the Board prior to the
date of this Agreement, or (ii) any Person who subsequently
becomes a member of the Board, while such Person is a member of
the Board, who is not an Acquiring Person, or an Affiliate or
Associate of an Acquiring Person, or a representative of an
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Acquiring Person or of any Affiliate or Associate thereof, if
such Person's nomination for election or election to the Board is
recommended or approved by a majority of the Disinterested
Directors.
(h) "Person" shall mean any individual, firm, corporation,
association, partnership, joint-venture, trust or other entity,
and shall include any successor (by merger or otherwise) of such
entity.
(i) "Principal office" when referring to the office of the
Rights Agent shall mean the office of the Rights Agent at which
such Rights Agent conducts its corporate trust business.
(j) "Stock Acquisition Date" shall mean the first date of
public announcement by the Company or an Acquiring Person that an
Acquiring Person has become such (including, without limitation,
the first date on which any filing with any governmental
authority disclosing that an Acquiring Person has become such is
made available to the public).
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.
SECTION 3. ISSUE OF RIGHTS CERTIFICATES.
(a) Until the earlier of (i) the tenth day after the Stock
Acquisition Date or (ii) the tenth day after the date of the
commencement of, or first public announcement of the intent of
any Person (other than the Company, any wholly owned subsidiary
of the Company or any employee benefit plan of the Company or of
any subsidiary of the Company or any entity holding Common Stock
for or pursuant to the terms of any such employee benefit plan)
to commence, a tender or exchange offer the consummation of which
would result in beneficial ownership by a Person of 30% or more
of the shares of Common Stock then outstanding (including any
such date which is after the date of this Agreement and prior to
the issuance of the Rights; the earlier of such dates being
herein referred to as the "Distribution Date"), (x) the Rights
will be evidenced (subject to the provisions of paragraph (b) of
this Section 3) by the certificates for Common Stock registered
in the names of the holders thereof (which certificates for
Common Stock shall also be deemed to be Rights Certificates) and
not by separate Rights Certificates, and (y) the right to receive
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Rights Certificates will be transferable only in connection with
the transfer of the underlying shares of Common Stock. 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 the Common Stock as of the close of business on
the Distribution Date, at the address of such holder shown on the
records of the Company, a Rights Certificate, in substantially
the form of Exhibit B hereto (the "Rights Certificate"),
evidencing one Right for each share of Common Stock so held,
subject to adjustment as provided herein. As of the Distribution
Date, the Rights will be evidenced solely by such Rights
Certificates.
(b) On June 19, 1997, or as soon as practicable thereafter,
the Company will send a copy of a Summary of Rights to Purchase
Series A Preferred Stock, in substantially the form attached
hereto as Exhibit C (the "Summary of Rights"), by first-class,
postage prepaid mail, to each record holder of the Common Stock
as of the close of business on June 16, 1997, at the address of
such holder shown on the records of the Company. With respect to
certificates for the Common Stock outstanding as of June 16,
1997, until the Distribution Date, the Rights will be evidenced
by such certificates for Common Stock registered in the names of
the holders thereof. Until the Distribution Date (or, if
earlier, the Expiration Date), the surrender for transfer of any
certificates representing shares of Common Stock outstanding on
June 16, 1997, shall also constitute the transfer of the Rights
associated with the shares of Common Stock represented thereby.
(c) Certificates for Common Stock issued after June 16,
1997, but prior to the earlier of the Distribution Date or the
Expiration Date (as such terms are defined in this Section 3 and
Section 7 hereof) shall have impressed on, printed on, written on
or otherwise affixed to them the following legend:
This certificate also evidences and entitles the holder
hereof to certain Rights as set forth in a Rights
Agreement between Manatron, Inc. (the "Company") and
Registrar and Transfer Company (the "Rights Agent")
dated as of June 2, 1997 (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 after
receipt of a written request therefor. Under certain
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circumstances, Rights issued to, or held by, any Person
who is, was or becomes an Acquiring Person (as such
terms are defined in the Rights Agreement) whether
currently held by or on behalf of such Person or by any
subsequent holder, may become null and void.
With respect to such certificates containing the foregoing
legend, until the Distribution Date, the Rights associated with
the Common Stock represented by such certificates shall be
evidenced by such certificates alone, and the surrender for
transfer of any such certificate shall also constitute the
transfer of the Rights associated with the shares of Common Stock
represented thereby.
SECTION 4. FORM OF RIGHTS CERTIFICATES.
(a) The Rights Certificates (and the forms of election to
purchase and of assignment to be printed on the reverse thereof)
shall each 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 22 hereof, the Rights Certificates, whenever distributed,
shall be dated as of the Record Date and on their face shall
entitle the holders thereof to purchase such number of one one-
hundredths of a share of Preferred Stock as shall be set forth
therein at the price set forth therein (the "Purchase Price"),
but the number and type of securities purchasable upon the
exercise of each Right and the Purchase Price thereof shall be
subject to adjustment as provided herein.
(b) Any Rights Certificate issued pursuant to Section 3(a)
or Section 22 hereof that represents Rights beneficially owned
by: (i) an Acquiring Person or any Associate or Affiliate of an
Acquiring Person, (ii) a transferee of an Acquiring Person (or of
any such Associate or Affiliate) 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
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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, arrangement or
understanding which has as a primary purpose or effect avoidance
of Section 7(e) hereof, and any Rights Certificate issued
pursuant to Section 6 or Section 11 hereof upon transfer,
exchange, replacement or adjustment of any other Rights
Certificate referred to in this sentence, shall contain (to the
extent feasible) the following legend:
The Rights represented by this Rights Certificate are
or were beneficially owned by a Person who was or
became an Acquiring Person or an Affiliate or Associate
of an Acquiring Person (as such terms are defined in
the Rights Agreement). Accordingly, this Rights
Certificate and the Rights represented hereby may
become null and void in the circumstances specified in
Section 7(e) of such Agreement.
SECTION 5. COUNTERSIGNATURE AND REGISTRATION. The Rights
Certificates shall be executed on behalf of the Company by its Chairman of
the Board, President or any Vice President, either manually or by facsimile
signature, and have affixed thereto the Company's seal or a facsimile
thereof which shall be attested by the Secretary or an Assistant Secretary
of the Company, either manually or by facsimile signature. The Rights
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 Rights Certificates shall
cease to be such officer of the Company before countersignature by the
Rights Agent and issuance and delivery by the Company, such Rights
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 Rights Certificates had not ceased to be
such officer of the Company; and any Rights Certificate may be signed on
behalf of the Company by any person who, at the actual date of the
execution of such Rights Certificate, shall be a proper officer of the
Company to sign such Rights Certificate, although at the date of the
execution of this Rights Agreement any such person was not such an officer.
Following the Distribution Date, the Rights Agent will keep or
cause to be kept, at its principal office or offices designated as the
appropriate place for surrender of Rights Certificates upon exercise or
transfer, books for registration and transfer of the Rights Certificates
issued hereunder. Such books shall show the names and addresses of the
respective holders of the Rights Certificates, each Rights Certificate's
number, the number of Rights evidenced on its face by each of the Rights
Certificates and the date of each of the Rights Certificates.
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SECTION 6. TRANSFER, SPLIT UP, COMBINATION AND EXCHANGE OF RIGHTS
CERTIFICATES; MUTILATED, DESTROYED, LOST OR STOLEN RIGHTS CERTIFICATES.
(a) Subject to the provisions of Section 4(b), Section 7(e)
and Section 14 hereof, at any time after the close of business on
the Distribution Date, and at or prior to the close of business
on the earlier of the Expiration Date or the Final Expiration
Date (as defined in Section 7(a) hereof), any Rights Certificate
or Certificates may be transferred, split up, combined or
exchanged for another Rights Certificate or Rights Certificates,
entitling the registered holder to purchase a like number of one
one-hundredths of a share of Preferred Stock (or, following an
event described in Section 11(a)(ii) or Section 13(a) hereof,
Common Stock, other securities, cash or other assets, as the case
may be) as the Rights Certificate or Rights Certificates
surrendered then entitled to such holder to purchase. Any
registered holder desiring to transfer, split up, combine or
exchange any Rights Certificate or Rights Certificates shall make
such request in writing delivered to the Rights Agent, and shall
surrender the Rights Certificate or Rights Certificates to be
transferred, split up, combined or exchanged at the principal
office of the Rights Agent. Neither the Rights Agent nor the
Company shall be obligated to take any action whatsoever with
respect to the transfer of any such surrendered Rights
Certificate until the registered holder shall have completed and
signed the certificate contained in the form of assignment on the
reverse side of such Rights 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 4(b) and Section 7(e) hereof,
countersign and deliver to the person entitled thereto a Rights
Certificate or Rights 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 Rights 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 Rights Certificate, and, in case
of loss, theft or destruction, of indemnity or security (which
may include a surety bond) 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 Rights
Certificate if mutilated, the Company will make and deliver a new
Rights Certificate of like tenor to the Rights Agent for delivery
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to the registered owner in lieu of the Rights Certificate so
lost, stolen, destroyed, or mutilated.
SECTION 7. EXERCISE OF RIGHTS; PURCHASE PRICE; EXPIRATION DATE OF
RIGHTS.
(a) Subject to Section 7(e) hereof, the registered holder
of any Rights Certificate may exercise the Rights evidenced
thereby (except as otherwise provided herein, including, without
limitation, the restrictions on exercisability set forth in
Section 11(a)(iii) and Section 23(a) hereof) in whole or in part
at any time after the Distribution Date upon surrender of the
Rights Certificate, with the form of election to purchase and the
certificate on the reverse side thereof duly executed, to the
Rights Agent at the principal office of the Rights Agent
designated for such purpose, together with payment of the
aggregate Purchase Price with respect to the total number of one
one-hundredths of a share of Preferred Stock (or other securities
or property, as the case may be) as to which the Rights are
exercised, at or prior to the earlier of (i) the close of
business on June 15, 2007 (the "Final Expiration Date"), or (ii)
the time at which the Rights are redeemed as provided in Section
23 hereof (the earlier of (i) and (ii) being herein referred to
as the "Expiration Date").
(b) The Purchase Price for each one one-hundredth of a
share of Preferred Stock purchasable upon the exercise of a Right
shall initially be $20, shall be subject to adjustment from time
to time as provided in Section 11 and Section 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 Rights Certificate representing
exercisable Rights, with the form of election to purchase and the
certificate duly executed, accompanied by payment of the Purchase
Price for each one one-hundredth of a share of Preferred Stock
(or other securities or property, as the case may be) to be
purchased and an amount equal to any applicable transfer tax in
cash, or by certified check or bank draft payable to the order of
the Company, the Rights Agent shall thereupon promptly
(i) requisition from any transfer agent of the shares of
Preferred Stock (or make available, if the Rights Agent is the
transfer agent) certificates for the number of one one-hundredths
of a share of Preferred Stock to be purchased and the Company
hereby irrevocably authorizes its transfer agent to comply with
all such requests, (ii) when appropriate, requisition from the
Company the amount of cash to be paid in lieu of issuance of
fractional shares in accordance with Section 14, (iii) promptly
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after receipt of such certificates, cause the same to be
delivered to or upon the order of the registered holder of such
Rights Certificate, registered in such name or names as may be
designated by such holder, and (iv) when appropriate, after
receipt promptly deliver such cash to or upon the order of the
registered holder of such Rights Certificate.
(d) In case the registered holder of any Rights Certificate
shall exercise less than all the Rights evidenced thereby, a new
Rights Certificate evidencing Rights equivalent to the Rights
remaining unexercised shall be issued by the Rights Agent and
delivered to the registered holder of such Rights Certificate or
to his duly authorized assigns, subject to the provisions of
Section 14 hereof.
(e) Notwithstanding anything in this Agreement to the
contrary, from and after the first occurrence of an event
described in Section 11(a)(ii), any Rights beneficially owned by
(i) an Acquiring Person or an Associate or Affiliate of an
Acquiring Person, (ii) a transferee of an Acquiring Person (or of
any such Associate or Affiliate) 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, 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 any holder of such Rights shall
thereupon have no rights whatsoever with respect to such Rights,
whether under any provision of this Agreement or otherwise. The
Company shall use all reasonable efforts to insure that the
provisions of this Section 7(e) and Section 4(b) hereof are
complied with, but shall have no liability to any holder of
Rights Certificates or any 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 exercise as set forth
in this Section 7 unless such registered holder shall have
(i) completed and signed the certificate contained in the form of
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election to purchase set forth on the reverse side of the Rights
Certificate surrendered for such exercise, and (ii) provided such
additional evidence of the identity of the Beneficial Owner (or
former Beneficial Owner) or Affiliates or Associates thereof as
the Company shall reasonably request.
SECTION 8. CANCELLATION AND DESTRUCTION OF RIGHTS CERTIFICATES. All
Rights Certificates surrendered for the purpose of exercise, transfer,
split up, combination or exchange shall, if surrendered to the Company or
to any of its agents, be delivered to the Rights Agent for cancellation or
in canceled form, or, if surrendered to the Rights Agent, shall be canceled
by it, and no Rights Certificates shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Rights Agreement. The
Company shall deliver to the Rights Agent for cancellation and retirement,
and the Rights Agent shall so cancel and retire, any other Rights
Certificate purchased or acquired by the Company other than upon the
exercise thereof. The Rights Agent shall deliver all canceled Rights
Certificates to the Company, or shall, at the written request of the
Company, destroy such canceled Rights Certificates, and in such case shall
deliver a certificate of destruction thereof to the Company.
SECTION 9. RESERVATION AND AVAILABILITY OF CAPITAL STOCK.
(a) The Company covenants and agrees that it will cause to
be reserved and kept available out of its authorized and unissued
shares of Preferred Stock (and, following the occurrence of an
event described in Section 11(a)(ii) or Section 13(a) hereof, out
of its authorized and unissued shares of Common Stock or other
securities or out of its authorized and issued shares of Common
Stock or other securities held in its treasury), the number of
shares of Preferred Stock (and, following the occurrence of an
event described in Section 11(a)(ii) or Section 13(a) hereof,
Common Stock or other securities) that will be sufficient to
permit the exercise in full of all outstanding Rights.
(b) If the shares of Preferred Stock (and, following the
occurrence of an event described in Section 11(a)(ii) or Section
13(a) hereof, Common Stock or other securities) issuable upon the
exercise of Rights may be listed on any national securities
exchange or quoted for trading on The Nasdaq Stock Market, the
Company shall use its best efforts to cause, from and after such
time as the Rights become exercisable, all shares reserved for
such issuance to be listed on such exchange or quoted on The
Nasdaq Stock Market upon official notice of issuance upon such
exercise.
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(c) The Company covenants and agrees that it will take all
such action as may be necessary to ensure that all one one-
hundredths of a share of Preferred Stock (and, following the
occurrence of an event described in Section 11(a)(ii) or Section
13(a) hereof, Common Stock or other securities) 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.
(d) The Company further covenants and agrees that it will
pay when due and payable any and all federal and state transfer
taxes and charges which may be payable in respect of the issuance
or delivery of the Rights Certificates or of any shares of
Preferred Stock (or Common Stock or other securities, as the case
may be) 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 Rights Certificates to
a person other than, or the issuance or delivery of a number of
one one-hundredths of a share of Preferred Stock (or Common Stock
or other securities, as the case may be) in a name other than
that of, the registered holder of the Rights Certificate
evidencing Rights surrendered for exercise or to issue or deliver
any certificates for a number of one one-hundredths of a share of
Preferred Stock (or Common Stock or other securities, as the case
may be) upon the exercise of any Rights until any such tax shall
have been paid (any such tax being payable by the holder of such
Rights Certificate at the time of surrender) or until it has been
established to the Company's satisfaction that no such tax is
due.
SECTION 10. PREFERRED STOCK RECORD DATE. Each person in whose name
any certificate for a number of one one-hundredths of a share of Preferred
Stock (or Common Stock or other securities, as the case may be) is issued
upon the exercise of Rights shall for all purposes be deemed to have become
the holder of record of such fractional shares of Preferred Stock (or
Common Stock or other securities, as the case may be) represented thereby
on, and such certificate shall be dated, the date upon which the Rights
Certificate evidencing such Rights was duly surrendered and payment of the
Purchase Price (and any applicable transfer taxes) was made; PROVIDED,
HOWEVER, that if the date of such surrender and payment is a date upon
which the Preferred Stock (or Common Stock or other securities, as the case
may be) transfer books of the Company are closed, such person shall be
deemed to have become the record holder of such shares (fractional or
otherwise) on, and such certificate shall be dated, the next succeeding
business day on which the Preferred Stock (or Common Stock or other
securities, as the case may be) transfer books of the Company are open.
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Prior to the exercise of the Rights evidenced thereby, the holder of a
Rights Certificate shall not be entitled to any rights of a shareholder of
the Company with respect to shares for which the Rights shall be
exercisable, including, without limitation, the right to vote, to receive
dividends or other distributions or to exercise any preemptive rights, and
shall not be entitled to receive any notice of any proceedings of the
Company, except as provided herein.
SECTION 11. ADJUSTMENT OF PURCHASE PRICE, NUMBER 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 Stock payable in shares of Preferred Stock,
(B) subdivide the outstanding Preferred Stock, (C) combine
the outstanding Preferred Stock into a smaller number of
shares or (D) issue any shares of its capital stock in a
reclassification of the Preferred Stock (including any such
reclassification in connection with a consolidation or
merger in which the Company is the continuing or surviving
corporation), except as otherwise provided in this Section
11(a) and Section 7(e) hereof, the Purchase Price in effect
at the time of the record date for such dividend or on the
effective date of such subdivision, combination or
reclassification, and the number and kind of shares of
Preferred Stock or 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
shares of Preferred Stock or capital stock, as the case may
be, which, if such Right had been exercised immediately
prior to such date and at a time when the Preferred Stock
transfer books of the Company were open, the holder would
have owned upon such exercise and been entitled to receive
by virtue of such dividend, subdivision, combination or
reclassification. If an event occurs which would require an
adjustment under both Section 11(a)(i) and Section 11(a)(ii)
hereof, the adjustment provided for in this Section 11(a)(i)
shall be in addition to, and shall be made prior to, any
adjustment required pursuant to Section 11(a)(ii).
(ii) In the event
(A) Any Acquiring Person or any Associate or
Affiliate of any Acquiring Person, at any time after
the date of this Agreement, directly or indirectly,
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(1) shall merge into the Company or otherwise combine
with the Company and the Company shall be the
continuing or surviving corporation of such merger or
combination and the Common Stock of the Company shall
remain outstanding and not changed into or exchanged
for stock or other securities of any other Person or
the Company or cash or any other property, (2) shall,
in one or more transactions, other than in connection
with the exercise of Rights or in connection with the
exercise or conversion of securities exchangeable or
convertible into capital stock of the Company or any of
its subsidiaries, transfer any assets to the Company or
any of its subsidiaries in exchange (in whole or in
part) for shares of any class of capital stock of the
Company or any of its subsidiaries or for securities
exercisable for or convertible into shares of any class
of capital stock of the Company or any of its
subsidiaries or otherwise obtain from the Company or
any of its subsidiaries, with or without consideration,
any additional shares of any class of capital stock of
the Company or any of its subsidiaries or securities
exercisable for or convertible into shares of any class
of capital stock of the Company or any of its
subsidiaries (other than as part of a pro rata
distribution to all holders of such shares of capital
stock of the Company or any of its subsidiaries),
(3) shall sell, purchase, lease, exchange, mortgage,
pledge, transfer or otherwise dispose (in one or more
transactions), to, from or with, as the case may be,
the Company or any of its subsidiaries, assets,
including securities, on terms and conditions less
favorable to the Company than the Company would be able
to obtain in arm's-length negotiation with an
unaffiliated third party, (4) shall receive any
compensation from the Company or any of the Company's
subsidiaries other than compensation for full-time
employment as a regular employee at rates in accordance
with the Company's (or its subsidiaries') past
practices, or (5) shall receive the benefit, directly
or indirectly (except proportionately as a
shareholder), of any loans, advances, guarantees,
pledges or other financial assistance or any tax
credits or other tax advantage provided by the Company
or any of its subsidiaries, or
(B) During such time as there is an Acquiring
Person, there shall be any reclassification of
securities (including any reverse stock split), or
recapitalization of the Company, or any merger or
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consolidation of the Company with any of its
subsidiaries or any other transaction or series of
transactions involving the Company or any subsidiaries
of the Company (whether or not with or into or
otherwise involving an Acquiring Person) which has the
effect, directly or indirectly, of increasing by more
than 1% of the proportionate share of the outstanding
shares of any class of equity securities or of
securities exercisable for or convertible into equity
securities of the Company or any of its subsidiaries
which is directly or indirectly owned by any Acquiring
Person or any Associate or Affiliate of any Acquiring
Person, or
(C) Any Acquiring Person, alone or together with
its Affiliates and Associates, shall, at any time after
the date of this Agreement, become the Beneficial Owner
of 30% or more of the Common Stock then outstanding,
unless the event causing the 30% threshold to be
crossed is a transaction set forth in Section 13(a)
hereof, or is an acquisition of Common Stock pursuant
to a tender offer or exchange offer made pursuant to
Schedule 14D-1 (or any successor form) filed with the
Securities and Exchange Commission for all outstanding
shares of Common Stock (other than shares of Common
Stock held by the Person making the offer, or any
Affiliate or Associate of such Person) at a price and
on terms determined in good faith by at least a
majority of the Disinterested Directors who are not
officers of the Company to be (a) at a price which is
fair to shareholders (taking into account all factors
which such members of the Board deem relevant
including, without limitation, prices which could
reasonably be achieved if the Company or its assets
were sold on an orderly basis designed to realize
maximum value) and (b) otherwise in the best interests
of the Company and its shareholders,
then, and in each such case, proper provision shall be made so
that each holder of a Rights Certificate (except as provided
below and in Section 7(e) hereof), shall thereafter have a right
to receive, upon exercise thereof at the then-current Purchase
Price in accordance with the terms of this Agreement, in lieu of
shares of Preferred Stock, such number of shares of Common Stock
of the Company as shall equal the result obtained by
(x) multiplying the then-current Purchase Price by the number of
one one-hundredths of a share of Preferred Stock for which a
Rights Certificate is then exercisable and dividing that product
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by (y) 50% of the current per share market price of the Common
Stock (determined pursuant to Section 11(d)) on the fifth day (or
if such day is not a business day, the first business day after
the fifth day) after the earlier of the date of the occurrence or
the date of the first public announcement of any one of the
events listed above in this subparagraph (ii) (such number of
shares being referred to as the "Adjustment Shares"), PROVIDED,
HOWEVER, that if the adjustment is also subject to the provisions
of Section 13 hereof, then only the provisions of Section 13
hereof shall apply and no adjustment shall be made pursuant to
this Section 11(a)(ii). Notwithstanding the foregoing, upon the
occurrence of any of the events listed above in this paragraph
(ii), any Rights that are or were on or after the earlier of the
Distribution Date or Stock Acquisition Date beneficially owned by
the Acquiring Person or any Associate or Affiliate of the
Acquiring Person shall become void and any holder of such Rights
shall thereafter have no right to exercise such Rights under any
provision of this Agreement. The Company shall not enter into
any transaction of the kind listed in this subparagraph (ii) if
at the time of such transaction there are any rights, warrants,
instruments or securities outstanding or any agreements in effect
which, as a result of the consummation of such transaction, would
eliminate or substantially diminish the benefits intended to be
afforded by the Rights. Any Rights Certificate issued pursuant
to Section 3 hereof that represents Rights beneficially owned by
an Acquiring Person or any Associate or Affiliate thereof and any
Rights Certificate issued at any time upon the transfer of any
Rights to an Acquiring Person or any Associate or Affiliate
thereof or to any nominee of such Acquiring Person, Associate or
Affiliate, and any Rights Certificate issued pursuant to Section
6 or this Section 11 upon transfer, exchange, replacement or
adjustment of any other Rights Certificate referred to in this
sentence, shall contain the legend set forth in Section 4(b)
hereof.
(iii) In lieu of issuing shares of Common Stock in
accordance with Section 11(a)(ii) hereof, the Company may,
if two-thirds of the Disinterested Directors determine that
such action is necessary or appropriate and not contrary to
the interest of holders of Rights (and, in the event that
the number of shares of Common Stock which are authorized by
the Company's articles 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) of this Section 11(a), the
Company shall): (A) determine the excess of (1) the value
of the Adjustment Shares issuable upon the exercise of a
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Right (the "Current Value"), over (2) the Purchase Price
(such excess, the "Spread") and (B) with respect to each
Right, make adequate provision to substitute for the
Adjustment Shares, upon payment of the applicable Purchase
Price, (1) cash, (2) a reduction in the Purchase Price,
(3) Common Stock or other equity securities of the Company
(including, without limitation, shares, or units of shares,
of preferred stock which the Board of Directors of the
Company has deemed to have the same value as shares of
Common Stock (such shares of preferred stock, "common stock
equivalents")), (4) debt securities of the Company,
(5) other assets, or (6) any combination of the foregoing
having an aggregate value equal to the Current Value, where
such aggregate value has been determined by the Board of
Directors of the Company based upon the advice of a
recognized expert selected by the Board of Directors of the
Company; PROVIDED, HOWEVER, if the Company shall not have
made adequate provision to deliver value pursuant to clause
(B) above within thirty (30) days following the later of the
first occurrence of an event described in Section 11(a)(ii)
hereof or the first date that the right to redeem the Rights
pursuant to Section 23 hereof, as such date may be amended
pursuant to Section 26 hereof, shall expire, then the
Company shall be obligated to deliver, upon the surrender of
exercise of a Rights Certificate and without requiring
payment of the Purchase Price, shares of Common Stock (to
the extent available) and then, if necessary, cash,
securities and/or assets that in the aggregate are equal to
the Spread. If the Board of Directors of the Company shall
determine in good faith that it is likely that sufficient
additional shares of Common Stock could be authorized for
issuance upon exercise in full of the Rights, the thirty
(30) day period set forth above may be extended to the
extent necessary, but not more than ninety (90) days
following the first occurrence of an event described in
Section 11(a)(ii) hereof, in order that the Company may seek
shareholder approval for the authorization of such
additional shares (such period as it may be extended, the
"Substitution Period"). To the extent that the Company
determines that some action is to be taken pursuant to the
first and/or second sentences of this Section 11(a)(iii),
the Company (x) shall provide, subject to Section 7(e)
hereof, that such action shall apply uniformly to all
outstanding Rights, and (y) may suspend the exercisability
of the Rights until the expiration of the Substitution
Period in order to seek any authorization of additional
shares and/or to decide the appropriate form of distribution
to be made pursuant to such first sentence and to determine
-17-
the value thereof. In the event of any such suspension, the
Company shall issue a public announcement stating that the
exercisability of the Rights has been temporarily suspended,
as well as a public announcement at such time as the
suspension is no longer in effect. For purposes of this
Section 11(a)(iii), the value of the Common Stock shall be
the current per share market price of Common Stock (as
determined pursuant to Section 11(d) hereof) on the later of
the date of the first occurrence of an event described in
Section 11(a)(ii) hereof and the first date that the right
to redeem the Rights pursuant to Section 23 hereof, as such
date may be amended pursuant to Section 26 hereof, shall
expire and the value of any "common stock equivalents" shall
be deemed to have the same value as the Common Stock on such
date.
(b) In the event the Company shall fix a record date for
the issuance of rights or warrants to all holders of Preferred
Stock entitling them (for a period expiring within forty-five
(45) calendar days after such record date) to subscribe for or
purchase shares of Preferred Stock (or shares having the same
rights, privileges and preferences as shares of Preferred Stock
("equivalent preferred stock")), or securities convertible into
Preferred Stock or equivalent preferred stock at a price per
share of Preferred Stock or equivalent preferred stock (or having
a conversion price per share, if a security convertible into
Preferred Stock or equivalent preferred stock), less than the
current per share market price of the Preferred Stock (as defined
in Section 11(d)) 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 shares of Preferred Stock outstanding on such
record date plus the number of shares of Preferred Stock which
the aggregate offering price of the total number of shares of
Preferred Stock and/or equivalent preferred stock 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 shares of Preferred Stock outstanding on such record
date plus the number of additional shares of Preferred Stock
and/or equivalent preferred stock to be offered for subscription
or purchase (or into which the convertible securities so to be
offered are initially convertible). In case such subscription
price may be paid in a consideration part or all of which shall
be in a form other than cash, the value of such consideration
shall be as determined in good faith by the Board of Directors of
the Company, whose determination shall be described in a
-18-
statement filed with the Rights Agent. Shares of Preferred Stock
owned by or held for the account of the Company shall not be
deemed outstanding for the purpose of any such computation. Such
adjustment shall be made successively whenever such a record date
is fixed; and in 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 the event the Company shall fix a record date for
the making of a distribution to all holders of the Preferred
Stock (including any such distribution made in connection with a
consolidation or merger in which the Company is the continuing or
surviving corporation) of evidences of indebtedness or assets
(other than a regular periodic cash dividend at a rate not in
excess of 125% of the rate of the last regular periodic cash
dividend theretofore paid or a dividend payable in Preferred
Stock) or subscription rights or warrants (excluding those
referred to in Section 11(b) hereof), the Purchase Price to be in
effect after such record date shall be determined by multiplying
the Purchase Price in effect immediately prior to such record
date by a fraction, the numerator of which shall be the current
per share market price of the Preferred Stock (as defined in
Section 11(d)) on such record date, less the fair market value
(as determined in good faith by the Board of Directors of the
Company, whose determination shall be described in a statement
filed with the Rights Agent) of the portion of the assets or
evidences of indebtedness so to be distributed or of such
subscription rights or warrants applicable to one share of
Preferred Stock and the denominator of which shall be such
current per share market price of the Preferred Stock (as defined
in Section 11(d)). Such adjustments shall be made successively
whenever such a record date is fixed; and in the event that such
distribution is not so made, the Purchase Price shall again be
adjusted to be the Purchase Price which would then be in effect
if such record date had not been fixed.
(d) (i) For the purpose of any computation hereunder,
other than computations made pursuant to Section 11(a)(iii)
hereof, the "current per share market price" of Common Stock
on any date shall be deemed to be the average of the daily
closing prices per share of Common Stock for the thirty (30)
consecutive Trading Days (as such term is hereinafter
defined) immediately prior to such date, and for purposes of
computations made pursuant to Section 11(a)(iii) hereof, the
"current per share market price" of Common Stock on any date
shall be deemed to be the average of the daily closing
prices per share of such Common Stock for ten (10)
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consecutive Trading Days (as such term is hereinafter
defined) immediately following such date; PROVIDED, HOWEVER,
that in the event that the current per share market price of
Common Stock is determined during a period following the
announcement by the issuer of such Common Stock of (A) a
dividend or distribution on such Common Stock payable in
shares of such Common Stock or securities convertible into
shares of such Common Stock (other than the Rights which are
the subject of this Agreement) or (B) any subdivision,
combination or reclassification of such Common Stock, and
prior to the expiration of thirty (30) Trading Days or ten
(10) Trading Days, as set forth above, 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 per share 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 on the principal national
securities exchange on which the shares of Common Stock are
listed or admitted to trading or, if the shares of Common
Stock 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 Nasdaq Stock
Market or such other system then in use, or, if on any such
date the shares of Common Stock are not quoted by any such
organization, the average of the closing bid and asked
prices as furnished by a professional market maker making a
market in the Common Stock selected by the Board of
Directors of the Company. If on any such date no market
maker is making a market in the Common Stock, the fair value
of such shares on such date as determined in good faith by
the Board of Directors of the Company shall be used. The
term "Trading Day" shall mean a day on which the principal
national securities exchange on which the shares of Common
Stock are listed or admitted to trading is open for the
transaction of business or, if the shares of Common Stock
are not listed or admitted to trading on any national
securities exchange, a Monday, Tuesday, Wednesday, Thursday
or Friday on which banking institutions in the State of
Michigan are not authorized or obligated by law or executive
order to close. If the Common Stock is not publicly held or
not so listed or traded, "current per share market price"
shall mean the fair value per share as determined in good
-20-
faith by the Board of Directors of the Company, whose
determination shall be described in a statement filed with
the Rights Agent.
(ii) For the purpose of any computation hereunder, the
"current per share market price" of Preferred Stock shall be
determined in the same manner as set forth above for the
Common Stock in clause (i) of this Section 11(d) (other than
the last sentence thereof). If the current market price per
share of Preferred Stock cannot be determined in the manner
provided above or if the Preferred Stock is not publicly
held or listed or traded in a manner described in clause (i)
of this Section 11(d), the "current per share market price"
of Preferred Stock shall be conclusively deemed to be an
amount equal to 100 (as such number may be appropriately
adjusted for such events as stock splits, stock dividends
and recapitalizations with respect to the Common Stock
occurring after the date of this Agreement) multiplied by
the current per share market price of the Common Stock. If
neither the Common Stock nor the Preferred Stock is publicly
held or so listed or traded, "current per share market
price" of the Preferred Stock shall mean the fair value per
share as determined in good faith by the Board of Directors
of the Company, whose determination shall be described in a
statement filed with the Rights Agent and shall be
conclusive for all purposes. For all purposes of this
Agreement, the "current market price" of one one-hundredth
of a share of Preferred Stock shall be equal to the "current
per share market price" of Preferred Stock divided by one
hundred (100).
(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 Purchase Price; PROVIDED, HOWEVER, that any adjustments
which by reason of this Section 11(e) are not required to be made
shall be carried forward and taken into account in any subsequent
adjustment. All calculations under this Section 11 shall be made
to the nearest cent or to the nearest ten-thousandth of a share
of Common Stock or the nearest one-millionth of a share of
Preferred Stock, 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
years from the date of the transaction which requires such
adjustment or (ii) the Expiration Date.
(f) If as a result of an adjustment made pursuant to
Section 11(a)(ii) or Section 13(a), the holder of any Right
thereafter exercised shall become entitled to receive any shares
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of capital stock of the Company other than Preferred Stock,
thereafter the number of such other shares so receivable upon
exercise of any Right shall be subject to adjustment from time to
time in a manner and on terms as nearly equivalent as practicable
to the provisions with respect to the Preferred Stock contained
in Section 11(a), (b), (c), (g), (h), (i), (j), (k) and (m), and
the provisions of Sections 7, 9, 10, 13 and 14 hereof with
respect to the Preferred Stock 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 share of Preferred Stock
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 in Section 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 share of Preferred Stock (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 one one-
hundredths of a share of Preferred Stock purchasable upon the
exercise of a Right. Each of the Rights outstanding after such
adjustment of the number of Rights shall be exercisable for the
number of one one-hundredths of a share of Preferred Stock for
which 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
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made. This record date may be the date on which the Purchase
Price is adjusted or any day thereafter, but, if the Rights
Certificates have been issued, shall be at least ten (10) days
later than the date of the public announcement. If Rights
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 Rights Certificates on such record date Rights
Certificates evidencing, subject to Section 14 hereof, the
additional Rights to which such holders shall be entitled as a
result of such adjustment, or, at the option of the Company,
shall cause to be distributed to such holders of record in
substitution and replacement for the Rights Certificates held by
such holders prior to the date of adjustment, and upon surrender
thereof, if required by the Company, new Rights Certificates
evidencing all the Rights to which such holders shall be entitled
after such adjustment. Rights 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 Rights 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 share of
Preferred Stock issuable upon the exercise of the Rights, the
Rights Certificates theretofore and thereafter issued may
continue to express the Purchase Price per one one-hundredth of a
share and the number of one one-hundredth of a share which were
expressed in the initial Rights Certificates issued hereunder.
(k) Before taking any action that would cause an adjustment
reducing the Purchase Price below the then par value, if any, of
the number of one one-hundredths of a share of Preferred Stock
issuable upon exercise of the Rights, the Company shall take any
corporate action which may, in the opinion of its counsel, be
necessary in order that the Company may validly and legally issue
fully paid and nonassessable such number of one one-hundredths of
a share of Preferred Stock 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 the number of one one-
hundredths of a share of Preferred Stock and other capital stock
or securities of the Company, if any, issuable upon such exercise
over and above the number of one one-hundredths of a share of
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Preferred Stock 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 ββββ
or other appropriate instrument evidencing such holder's right to
receive such additional shares (fractional or otherwise) or
securities 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 in their good faith judgment the Board of Directors
of the Company shall determine to be advisable, which shall
include, not by way of limitation, such reductions in the
Purchase Price in order that any (i) consolidation or subdivision
of the Preferred Stock, (ii) issuance wholly for cash of any
shares of Preferred Stock at less than the current per share
market price, (iii) issuance wholly for cash of any shares of
Preferred Stock or securities which by their terms are
convertible into or exchangeable for shares of Preferred Stock,
(iv) stock dividends, or (v) issuance of rights, options or
warrants referred to hereinabove in this Section 11, hereafter
made by the Company to holders of its Preferred Stock shall not
be taxable to such shareholders.
SECTION 12. CERTIFICATE OF ADJUSTED PURCHASE PRICE OR NUMBER OF
SHARES. Whenever an adjustment is made as provided in Sections 11 and 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 Stock and the Common Stock a copy of such
certificate, and (c) mail a brief summary thereof to each holder of a
Rights Certificate (or, if prior to the Distribution Date, to each holder
of a certificate representing shares of Common Stock) in accordance with
Section 25 hereof.
SECTION 13. CONSOLIDATION, MERGER OR SALE OR TRANSFER OF ASSETS OR
EARNING POWER.
(a) In the event that, following the Stock Acquisition
Date, directly or indirectly, (x) the Company 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 shall consolidate with,
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or merge with or 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 shares of Common Stock shall be
changed into or exchanged for stock or other securities of any
other Person or cash or any other property, or (z) the Company
shall sell or otherwise transfer (or one or more of its
subsidiaries shall sell or otherwise transfer), in one
transaction or a series of related 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, then, and in each such case, proper
provision shall be made so that: (i) each holder of a Rights
Certificate, except as provided in Section 7(e) hereof, shall
thereafter have the right to receive, upon the exercise thereof
at the then current Purchase Price in accordance with the terms
of this Agreement, such number of validly authorized and issued,
fully paid, nonassessable and freely tradeable shares of Common
Stock of the Principal Party (as such term is hereinafter
defined), not subject to any liens, encumbrances, rights of first
refusal or other adverse claims, 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 share of Preferred Stock
for which a Right is exercisable immediately prior to the first
occurrence of an event described in clauses (x), (y) or (z) of
this Section 13(a) (a "Section 13 Event") (or, if an event
described in Section 11(a)(ii) has occurred prior to the Section
13 Event, multiplying the number of such one one-hundredths of a
share of Preferred Stock for which a Right was exercisable
immediately prior to the first occurrence of such an event
described in Section 11(a)(ii) by the Purchase Price in effect
immediately prior to such first occurrence), and dividing that
product (which, following the Section 13 Event, shall be referred
to as the "Purchase Price" for each Right and for all purposes of
this Agreement) by (2) 50% of the current per share market price
(determined pursuant to Section 11(d)(i) hereof) of the Common
Stock of such Principal Party on the date of consummation of such
Section 13 Event; (ii) such Principal Party shall thereafter be
liable for, and shall assume, by virtue of such Section 13 Event,
all the obligations and duties of the Company pursuant to this
Agreement; (iii) the term "Company" shall thereafter be deemed to
refer to such Principal Party, it being specifically intended
that the provisions of Section 11 hereof shall apply only to such
Principal Party following the first occurrence of a Section 13
Event; (iv) such Principal Party shall take such steps
(including, but not limited to, the reservation of a sufficient
number of shares of its Common Stock) in connection with the
consummation of any such transaction as may be necessary to
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assure that the provisions hereof shall thereafter be applicable,
as nearly as reasonably may be, in relation to its shares of
Common Stock thereafter deliverable upon the exercise of the
Rights; and (v) the provisions of Section 11(a)(ii) hereof shall
be of no effect following the first occurrence of any Section 13
Event.
(b) "Principal Party" shall mean
(i) in the case of any transaction described in clause
(x) or (y) of the first sentence of Section 13(a), the Person
that is the issuer of any securities into which Common Stock of
the Company are converted in such merger or consolidation, and if
no securities are so issued, the Person that is the other party
to such merger or consolidation; and
(ii) in the case of any transaction described in clause
(z) of the first sentence of Section 13(a), the Person that is
the party receiving the greatest portion of the assets or earning
power transferred pursuant to such transaction or transactions;
PROVIDED, HOWEVER, that in any such case, (1) if the Common Stock
of such Person is not at such time and has not been continuously
over the preceding twelve (12) month period registered under
Section 12 of the Exchange Act, and such Person is a direct or
indirect subsidiary of another Person the Common Stock of which
is and has been so registered, "Principal Party" shall refer to
such other Person; and (2) in case such Person is a subsidiary,
directly or indirectly, of more than one Person, the Common Stock
of two or more of which are and have been so registered,
"Principal Party" shall refer to whichever of such Persons is the
issuer of the Common Stock having the greatest aggregate market
value.
(c) After the Stock Acquisition Date, the Company shall not
consummate any such consolidation, merger, sale or transfer
unless the Principal Party shall have a sufficient number of
authorized shares of its Common Stock which have not been issued
or reserved for issuance to permit the exercise in full of the
Rights in accordance with this Section 13 and unless prior
thereto the Company and such Principal Party shall have executed
and delivered to the Rights Agent a supplemental agreement
providing for the terms set forth in paragraphs (a) and (b) of
this Section 13 and further providing that, as soon as
practicable after the date of any consolidation, merger or sale
of assets mentioned in paragraph (a) of this Section 13, the
Principal Party will
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(i) prepare and file a registration statement under
the Exchange Act, with respect to the Rights and the securities
purchasable upon exercise of the Rights on an appropriate form,
and will use its best efforts to cause such registration
statement to (A) become effective as soon as practicable after
such filing and (B) remain effective (with a prospectus at all
times meeting the requirements of the Act) until the Expiration
Date; and
(ii) will deliver to holders of the Rights historical
financial statements for the Principal Party and each of its
Affiliates which comply in all respects with the requirements for
registration on Form 10 under the Exchange Act.
The provisions of this Section 13 shall similarly apply to successive
mergers or consolidations or sales or other transfers. In the event that a
Section 13 Event shall occur at any time after the occurrence of an event
described in Section 11(a)(ii) hereof, the Rights which have not
theretofore been exercised shall thereafter become exercisable in the
manner described in Section 13(a).
SECTION 14. FRACTIONAL RIGHTS AND FRACTIONAL SHARES.
(a) The Company shall not be required to issue fractions of
Rights or to distribute Rights Certificates which evidence
fractional Rights. In lieu of such fractional Rights, there
shall be paid to the registered holders of the Rights
Certificates with regard to which such fractional Rights that
would otherwise be issuable, an amount in cash equal to the same
fraction of the current market value of a whole Right. For the
purpose of this Section 14(a), the current market value of a
whole Right shall be the closing price of the Rights for the
Trading Day immediately prior to the date on which such
fractional Rights would have been otherwise issuable. The
closing price for any day shall be the last sale price, regular
way, or, in case no such sale takes place on such day, the
average of the closing bid and asked prices, regular way, in
either case as reported in the principal consolidated transaction
reporting system with respect to securities listed 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 Nasdaq Stock Market or such other system then in use or,
if on any such date the Rights are not quoted by any such
organization, the average of the closing bid and asked prices as
-27-
furnished by a professional market maker making a market in the
Rights selected by the Board of Directors of the Company. If on
any such date no such market maker is making a market in the
Rights, the fair value of the Rights on such date as determined
in good faith by the Board of Directors of the Company shall be
used.
(b) The Company shall not be required to issue fractions of
shares of Preferred Stock (other than fractions in integral
multiples of one one-hundredth of a share of Preferred Stock)
upon exercise of the Rights or to distribute certificates which
evidence fractional shares of Preferred Stock (other than
fractions in integral multiples of one-hundredth of a share of
Preferred Stock). In lieu of fractional shares of Preferred
Stock that are not integral multiples of one-hundredth of a share
of Preferred Stock, the Company may pay to the registered holders
of Rights 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-hundredth of a share of Preferred
Stock. For purposes of this Section 14(b), the current market
value of one-hundredth of a share of Preferred Stock shall be the
closing price of a share of Preferred Stock (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 Rights
expressly waives his right to receive any factional Rights or any
fractional shares (other than fractions in integral multiples of
one-hundredth of a share of Preferred Stock) upon exercise of a
Right, except as permitted by this Section 14.
SECTION 15. RIGHTS OF ACTION. All rights of action in respect of
this Agreement are vested in the respective registered holders of the
Rights Certificates (and, prior to the Distribution Date, the registered
holders of the Common Stock); and any registered holder of any Rights
Certificate (or, prior to the Distribution Date, of the Common Stock),
without the consent of the Rights Agent or of the holder of any other
Rights Certificate (or, prior to the Distribution Date, of the Common
Stock), 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 Rights Certificate in the manner provided in such
Rights Certificate and in this Agreement. Without limiting the foregoing
of 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 hereunder and will be entitled to injunctive
-28-
relief against actual or threatened violations of the obligations of any
Person subject to this Agreement.
SECTION 16. AGREEMENT OF RIGHT HOLDERS. Every holder of Rights by
accepting the same consents and agrees with the Company and the Rights
Agent and with every other holder of Rights that:
(a) prior to the Distribution Date, the Rights will be
transferable only in connection with the transfer of shares of
Common Stock;
(b) after the Distribution Date, the Rights Certificates
are transferable only on the registry books of the Rights Agent
if surrendered at the principal office of the Rights Agent, duly
endorsed or accomplished by a proper instrument of transfer and
with the appropriate forms and certificates fully executed;
(c) the Company and the Rights Agent may deem and treat the
person in whose name the Rights Certificate (or, prior to the
Distribution Date, the associated Common Stock certificate) is
registered as the absolute owner thereof and of the Rights
evidenced thereby (notwithstanding any notations of ownership or
writing on the Rights Certificates or the associated Common Stock
certificate made by anyone other than the Company or the Rights
Agent) for all purposes whatsoever, and neither the Company nor
the Rights Agent shall be affected by any notice to the contrary;
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, subject to
the good faith determination of its Board of Directors, use its
best efforts to have any such order, decree or ruling lifted or
otherwise overturned.
SECTION 17. RIGHTS CERTIFICATE HOLDER NOT DEEMED A SHAREHOLDER. No
holder, as such, of any Rights Certificate shall be entitled to vote,
receive dividends or be deemed for any purpose the holder of the number of
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one-hundredths of a share of Preferred Stock or any other securities of the
Company which may at any time be issuable on the exercise of the Rights
represented thereby, nor shall anything contained herein or in any Rights
Certificate be construed to confer upon the holder of any Rights
Certificate, as such, any of the rights of a shareholder of the Company or
any right to vote for the election of directors or upon any matter
submitted to shareholders at any meeting thereof, or to give or withhold
consent to any corporate action, or to receive notice of meetings or other
actions affecting shareholders (except as provided in Section 24 hereof),
or to receive dividends or subscription rights, or otherwise, until the
Right or Rights evidenced by such Rights Certificate shall have been
exercised in accordance with the provisions hereof.
SECTION 18. CONCERNING THE RIGHTS AGENT.
(a) The Company agrees to pay to the Rights Agent
reasonable compensation for all services rendered by it hereunder
and, from time to time on demand of the Rights Agent, its
reasonable expenses and counsel fees and other disbursements
incurred in the administration and execution of this 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 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 in the premises.
(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 Rights Certificate or certificate
for Common Stock or for other securities of the Company,
instrument of assignment or transfer, power of attorney,
endorsement, affidavit, letter, notice, direction, consent,
certificate, statement or other paper or document believed by it
to be genuine and to be signed, executed and, where necessary,
verified or acknowledged by the proper person or persons.
SECTION 19. MERGER OR CONSOLIDATION OR CHANGE OF NAME OF RIGHTS
AGENT.
(a) Any corporation into which the Rights Agent or any
successor Rights Agent may be merged or with which it may be
consolidated, or any corporation resulting from any merger or
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consolidation which the Rights Agent or any successor Rights
Agent shall be a party, or any corporation 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 corporation would be eligible for
appointment as a successor Rights Agent under the provisions of
Section 21 hereof. In case at the time such successor Rights
Agent shall succeed to the agency created by this Agreement, any
of the Rights 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
Rights Certificates so countersigned; and in case at that time
any of the Rights Certificates shall not have been countersigned,
any successor Rights Agent may countersign such Rights
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 Rights Certificates shall have the full force provided
in the Rights 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 Rights Certificates shall
have been countersigned but not delivered, the Rights Agent may
adopt the countersignature under its prior name and deliver
Rights Certificates so countersigned; and in case at that time
any of the Rights Certificates shall not have been countersigned,
the Rights Agent may countersign such Rights Certificates either
in its proper name or in its changed name; and in all such cases
such Rights Certificates shall have the full force provided in
the Rights Certificates and in this Agreement.
SECTION 20. DUTIES OF RIGHTS AGENT. The Rights Agent undertakes the
duties and obligations expressly set forth in this Agreement, and no
implied duties or obligations shall be read into this Agreement against the
Rights Agent. The Rights Agent shall perform its duties and obligations
upon the following terms and conditions, by all of which the Company and
the holders of Rights 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.
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(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
Chairman of the Board, the President, a 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 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 Rights Certificates (except as to its
countersignature thereof) or be required to verify the same, but
all such statements and recitals are and shall be deemed to have
been made by the Company only.
(e) The Rights Agent shall not be under any responsibility
in respect of the validity of this 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 Rights
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 Rights
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 Rights 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 shares of Common Stock or
Preferred Stock to be issued pursuant to this Agreement or any
Rights Certificate or as to whether any shares of Common Stock or
Preferred Stock 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,
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instruments and assurances as may reasonably be required by the
Rights Agent for the carrying out or performing by the Rights
Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to
accept instructions with respect to the performance of its duties
hereunder from any one of the Chairman of the Board, the
President, a 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 the instructions of any such officer.
Any application by the Rights Agent for written instructions from
the Company may, at the option of the Rights Agent, set forth in
writing any action proposed to be taken or omitted by the Rights
Agent under this Rights Agreement and the date on or after which
such action shall be taken or such omission shall be effective.
The Rights Agent shall not be liable for any action by or
omission of, the Rights Agent in accordance with a proposal
included in any such application on or after the date specified
therein (which date shall not be less than five (5) Business Days
after the date any such officer actually receives such
application, unless any such officer shall have consent in
writing to an earlier date) unless, prior to taking any such
action (or the effective date in the case of an omission), the
Rights Agent shall have received written instructions in response
to such application specifying the action to be taken or omitted.
(h) No provision of this Agreement shall require the Rights
Agent to extend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder or in the exercise of its rights if there shall be
reasonable grounds for believing that repayment of such funds or
adequate indemnification against such risk or liability is not
reasonably assured to it.
(i) The Rights Agent and any shareholder, 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 legal entity.
(j) The Rights Agent may execute and exercise any of the
rights or powers hereby vested in it or perform any duty
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hereunder either itself or by or through its attorneys or agents,
and the Rights Agent shall not be answerable or accountable for
any act, default, neglect or misconduct of any such attorneys or
agents or for any loss to the Company resulting from any such
act, default, neglect or misconduct, provided reasonable care was
exercised in the selection and continued employment thereof.
(k) If, with respect to any Rights Certificate surrendered
to the Rights Agent for exercise or transfer, the certificate
attached to the form of assignment or form of election to
purchase, as the case may be, has either not been completed or
indicates an affirmative response to clause 1 and/or 2 thereof,
the Rights Agent shall not take any further action with respect
to such requested exercise or transfer without first consulting
the Company.
SECTION 21. CHANGE OF RIGHTS AGENT. The Rights Agent or any
successor Rights Agent may resign and be discharged from its duties under
this Agreement upon thirty (30) days' notice in writing mailed to the
Company and to each transfer agent of the shares of Common Stock and
Preferred Stock by registered or certified mail, and to the holders of the
Rights Certificates by first-class mail. 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 shares of Common Stock and
Preferred Stock by registered or certified mail, and to the holders of the
Rights 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 Rights Certificate (who shall, with such notice, submit
his Rights Certificate for inspection by the Company), then the registered
holder of any Rights 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 corporation organized and doing business under the laws of the United
States or of any state thereof in good standing, 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 at the time of its appointment as Rights Agent a combined capital
and surplus of at least $50 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
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hereunder, and execute and deliver any further assurance, conveyance, act
or deed necessary for the purpose. Not later than the effective date of
any such appointment the Company shall file notice thereof in writing with
the predecessor Rights Agent and each transfer agent of the shares of
Common Stock and Preferred Stock, and mail a notice thereof in writing to
the registered holders of the Rights Certificates. Failure to give any
notice provided for in this Section 21, however, or any defect therein,
shall not affect the legality or validity of the resignation or removal of
the Rights Agent or the appointment of the successor Rights Agent, as the
case may be.
SECTION 22. ISSUANCE OF NEW RIGHTS CERTIFICATES. Notwithstanding any
of the provisions of this Agreement or of the Rights Certificate to the
contrary, the Company may, at its option, issue new Rights 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 per share and the
number or kind or class of shares or other securities or property
purchasable under the Rights Certificates made in accordance with the
provisions of this Agreement. In addition, the Company may, if deemed
necessary or appropriate by the Board of Directors of the Company, issue
Rights Certificates representing the appropriate number of Rights in
connection with the issuance or sale of shares of Common Stock following
the Distribution Date.
SECTION 23. REDEMPTION.
(a) The Board of Directors of the Company may, at its
option, at any time prior to (i) the close of business on the
earlier of the thirtieth day following the Stock Acquisition
Date, or (ii) the Final Expiration Date, 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 or similar transaction occurring after the
date hereof (such redemption price being hereinafter referred to
as the "Redemption Price"); PROVIDED, HOWEVER, if the Board of
Directors of the Company authorizes redemption of the Rights in
either of the circumstances set forth in clauses (i) and (ii)
below, then there must be Disinterested Directors then in office
and such authorization shall require the concurrence of two-
thirds of such Disinterested Directors: (i) such authorization
occurs on or after the time a Person becomes an Acquiring Person;
or (ii) such authorization occurs on or after the date of a
change (resulting from a proxy or consent solicitation) in a
majority of the directors in office at the commencement of such
solicitation if any Person who is a participant in such
solicitation has stated (or, if upon the commencement of such
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solicitation, a majority of the Board of Directors of the Company
has determined in good faith) that such Person (or any of such
Person's Affiliates or Associates) intends to take, or may
consider taking, any action which would result in such Person
becoming an Acquiring Person or which would cause the occurrence
of an event described in Section 11(a)(ii) or Section 13(a)
hereof unless, concurrent with such solicitation, such Person (or
one or more of such Person's Affiliates or Associates) is making
a cash tender offer pursuant to a Schedule 14D-1 (or any
successor form) filed with the Securities and Exchange Commission
for all outstanding Common Stock not beneficially owned by such
Person (or by such Person's Affiliates or Associates); PROVIDED
FURTHER, however, that if, following the occurrence of a Stock
Acquisition Date and following the expiration of the right of
redemption hereunder but prior to any event described in
Section 11(a)(ii) or Section 13(a) hereof, (i) a Person who is an
Acquiring Person shall have transferred or otherwise disposed of
a number of shares of Common Stock in one transaction or a series
of transactions not directly or indirectly involving the Company
or any of its subsidiaries, which did not result in the
occurrence of an event described in Section 11(a)(ii) or
Section 13(a) hereof such that such Person is thereafter a
Beneficial Owner of 10% or less of the outstanding shares of
Common Stock, and (ii) there are no other Persons, immediately
following the occurrence of the event described in clause (i) who
are Acquiring Persons, then the right of redemption shall be
reinstated and thereafter be subject to the provisions of this
Section 23. Notwithstanding anything contained in this Agreement
to the contrary, the Rights shall not be exercisable following an
adjustment made pursuant to Section 11(a)(ii) prior to the
expiration of the Company's right of redemption hereunder.
Neither the Board of Directors, the Disinterested Directors nor
the Company shall have any liability to any Person as a result of
the redemption of Rights pursuant to the terms hereof, other than
the obligation of the Company to pay $.01 per Right upon
redemption.
(b) Immediately upon the action of the Board of Directors
of the Company ordering the redemption of the Rights, and without
any further action and without any notice, the right to exercise
the Rights will terminate and the only right thereafter of the
holders of Rights shall be to receive the Redemption Price.
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 holders of the then outstanding
Rights by mailing such notice to all such holders at their last
addresses as they appear upon the registry books of the Rights
Agent or, prior to the Distribution Date, on the registry books
-36-
of the Transfer Agent for the shares of Common Stock. Any notice
which is mailed in the manner herein provided shall be deemed
given, whether or not the holder receives the notice. Each such
notice of redemption will state the method by which the payment
of the Redemption Price will be made.
SECTION 24. NOTICE OF CERTAIN EVENTS.
(a) In case the Company shall propose (i) to pay any
dividend payable in stock of any class to the holders of
Preferred Stock or to make any other distribution to the holders
of Preferred Stock (other than a regular periodic cash dividend
at a rate not in excess of 125% of the rate of the last regular
periodic cash dividend theretofore paid), or (ii) to offer to the
holders of Preferred Stock rights or warrants to subscribe for or
to purchase any additional Preferred Stock or shares of stock of
any class or any other securities, rights or options, or (iii) to
effect any reclassification of its Preferred Stock (other than a
reclassification involving only the subdivision of outstanding
shares of Preferred Stock), or (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 (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 Rights Certificate, in accordance with Section 25 hereof, a
notice of such proposed action, which shall specify the record
date for the purposes of such stock dividend, distribution of
rights or warrants, or the date on which such reclassification,
consolidation, merger, sale, transfer, liquidation, dissolution
or winding up is to take place and the date of participation
therein by the holders of the shares of Preferred Stock, 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 Common Stock 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
Stock whichever shall be the earlier.
(b) In case any of the events set forth in Section
11(a)(ii) of this Agreement shall occur, then, in any such case,
(i) the Company shall as soon as practicable thereafter give to
each holder of a Rights Certificate, in accordance with Section
-37-
25 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 Stock shall be deemed
thereafter to refer to Common Stock and/or, if appropriate, other
securities.
(c) Notwithstanding anything in this Agreement to the
contrary, prior to the Distribution Date a filing by the Company
with the Securities and Exchange Commission shall constitute
sufficient notice to the holders of securities of the Company,
including the Rights, for purposes of this Agreement and no other
notice need be given.
SECTION 25. NOTICES. Notices or demands authorized by this Agreement
to be given or made by the Rights Agent or by the holder of any Rights
Certificate to or on the Company shall be sufficiently given or made if
sent by first-class mail, postage prepaid, addressed (until another address
is filed in writing with the Rights Agent) as follows:
Manatron, Inc.
ββββ βββββ βββ ββββββ
βββββββββ, ββββββββ βββββ
Attention: Secretary
Subject to the provisions of Section 21 hereof, any notice or demand
authorized by this Agreement to be given or made by the Company or by the
holder of any Rights Certificate to or on the Rights Agent shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed (until another address is filed in writing with the Company) as
follows:
Registrar and Transfer Company
ββ ββββββββ βββββ
ββββββββ, βββ ββββββ βββββ
Attention: Trust Administration
Notices or demands authorized by this Agreement to be given or made by the
Company or the Rights Agent to the holder of any Rights 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 26. SUPPLEMENTS AND AMENDMENTS. Prior to the Distribution
Date and subject to the penultimate sentence of this Section 26, the
-38-
Company may, and the Rights Agent shall, if the Company so directs,
supplement or amend any provision of this Agreement without the approval of
any holders of certificates representing shares of Common Stock. From and
after the Distribution Date and subject to the penultimate sentence of this
Section 26, the Company may, and the Rights Agent shall, if the Company so
directs, supplement or amend this Agreement without the approval of any
holders of Rights Certificates in order (i) to cure any ambiguity, (ii) to
correct or supplement any provision contained herein which may be defective
or inconsistent with any other provisions herein, (iii) to shorten or
lengthen any time period hereunder (which shortening or lengthening shall
be effective only if there are Disinterested Directors and shall require
the concurrence of two-thirds of such Disinterested Directors if (A) such
supplement or amendment occurs on or after the time a Person becomes an
Acquiring Person, or (B) such supplement or amendment occurs on or after
the date of a change (resulting from a proxy or consent solicitation) in a
majority of the directors in office at the commencement of such
solicitation if any Person who is a participant in such solicitation has
stated (or, if upon the commencement of such solicitation, a majority of
the Board of Directors of the Company and determined in good faith) that
such Person (or any of its Affiliates or Associates) intends to take, or
may consider taking, any action which would result in such Person becoming
an Acquiring Person or which would cause the occurrence of an event
described in Section 11(a)(ii) or Section 13(a) hereof unless, concurrent
with such solicitation, such Person (or one or more of its Affiliates or
Associates) is making a cash tender offer pursuant to a Schedule 14D-1 (or
any successor form) filed with the Securities and Exchange Commission for
all outstanding shares of Common Stock not beneficially owned by such
Person (or by its Affiliates or Associates)), or (iv) to change or
supplement the provisions hereunder in any manner which the Company may
deem necessary or desirable and which shall not adversely affect the
interests of the holders of Rights Certificates (other than an Acquiring
Person or an Affiliate or Associate of an Acquiring Person); PROVIDED,
HOWEVER, that this Agreement may not be supplemented or amended to
lengthen, pursuant to clause (iii) of this sentence, (A) a time period
relating to when the Rights may be redeemed at such time as the Rights are
not then redeemable, or (B) any other time period unless such lengthening
is for the purpose of protecting, enhancing or clarifying the rights of,
and/or the benefits to, the holders of Rights. Upon the delivery of a
certificate from an appropriate officer of the Company which states that
the proposed supplement or amendment is in compliance with the terms of
this Section 26, the Rights Agent shall execute such supplement or
amendment unless such supplement or amendment affects the duties or
immunities of the Rights Agent, in which case it may but shall not be
required to execute such supplement or amendment. Notwithstanding anything
contained in this Agreement to the contrary, no supplement or amendment
shall be made which changes the Redemption Price, the Final Expiration
Date, the Purchase Price or the number of one one-hundredths of a share of
Preferred Stock for which a Right is exercisable. Prior to the
-39-
Distribution Date, the interests of the holders of Rights shall be deemed
coincident with the interests of the holders of shares of Common Stock.
SECTION 27. 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 28. DETERMINATIONS AND ACTIONS BY THE BOARD OF DIRECTORS,
ETC. For all purposes of this Agreement, any calculation of the number of
shares of Common Stock outstanding at any particular time, including for
purposes of determining the particular percentage of such outstanding
shares of Common Stock of which any Person is the Beneficial Owner, shall
be made in accordance with the last sentence of Rule 13d-3(d)(1)(i) of the
General Rules and Regulations under the Exchange Act as in effect as of the
date hereof. The Board of Directors of the Company (and, where
specifically provided for herein, the Disinterested Directors) shall have
the exclusive power and authority to administer this Agreement and to
exercise all rights and powers specifically granted to the Board, or the
Company (or, where specifically provided for herein, the Disinterested
Directors), 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 redeem the Rights or
to amend the Agreement). All such actions, calculations, interpretations
and determinations (including, for purposes of clause (y) below, all
omissions with respect to the foregoing) which are done or made by the
Board (or, where specifically provided for herein, by the Disinterested
Directors) in good faith (provided that the decision to redeem the rights
shall be in the sole discretion of the Board or where specifically provided
for herein, by the Disinterested Directors), shall (x) be final, conclusive
and binding on the Company, the Rights Agent, the holders of the Rights
Certificates and all other parties, and (y) not subject the Board or the
Disinterested Directors to any liability to the holders of the Rights
Certificates.
SECTION 29. BENEFITS OF THIS AGREEMENT. Nothing in this Agreement
shall be construed to give to any person or corporation other than the
Company, the Rights Agent and the registered holders of the Rights
Certificates (and, prior to the Distribution Date, the Common Stock) 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 Rights Certificates (and,
prior to the Distribution Date, the Common Stock).
-40-
SECTION 30. 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 31. GOVERNING LAW. This Agreement and each Rights
Certificate issued hereunder shall be deemed to be a contract made under
the laws of the State of Michigan 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 32. 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 33. 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.
-41-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and their respective corporate seals to be hereunto
affixed and attested, all as of the day and year first above written.
Attest: MANATRON, INC.
By____________________________ By _____________________________________
ββββ β. βββ ββββ β. βββββββββ
Secretary Chief Executive Officer, President,
Chief Financial Officer and Treasurer
Attest: REGISTRAR AND TRANSFER COMPANY
By____________________________ By _____________________________________
(Signature)
_____________________________________
(Printed)
Its: ___________________________________
(Title)
-42-
EXHIBIT A
FORM OF
CERTIFICATE OF DESIGNATION OF RIGHTS AND PREFERENCES
OF PREFERRED STOCK
of
MANATRON, INC.
Pursuant to Section 302 of the Michigan Business Corporation Act
I, ββββ β. βββββββββ, Chief Executive Officer, President, Chief
Financial Officer and Treasurer of Manatron, Inc., a corporation organized
and existing under the laws of the State of Michigan (the "Corporation"),
in accordance with the provisions of Section 302 thereof, DO HEREBY
CERTIFY:
That pursuant to the authority conferred upon the Board of
Directors by the Restated Articles of Incorporation, the Board of Directors
on March 27, 1997, adopted the following resolution:
RESOLVED, that pursuant to the authority granted to and vested in
the Board of Directors of this Corporation in accordance with the
provisions of its Restated Articles of Incorporation, the Board of
Directors hereby creates a series of preferred stock, no par value, of the
Corporation and hereby states the designation and number of shares, and
voting power, preferences and relative, participating, optional and other
special rights, and the qualifications, limitations and restrictions
thereof as follows:
SECTION 1. DESIGNATION AND AMOUNT. The shares of such series shall
be designated as "Series A Preferred Stock" (the "Preferred Stock") and the
number of shares constituting such series shall be forty thousand (40,000).
Such number of shares may be increased or decreased by resolution of the
Board of Directors.
SECTION 2. DIVIDENDS AND DISTRIBUTIONS.
(A) The holders of shares of Preferred Stock shall be
entitled to receive, when, as and if declared by the Board of
Directors out of funds legally available for such purpose,
cumulative preferential dividends in cash on the 15th day of
January, April, July, and October in each year (each such date
being referred to herein as a "Quarterly Dividend Payment Date")
commencing on the first Quarterly Dividend Payment Date after the
first issuance of a share or fraction of a share of Preferred
Stock, in an amount per share (rounded to the nearest cent) equal
to the greater of (i) $1.00 or (ii) 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 noncash 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, no par value, of the Corporation (the "Common Stock")
since the immediately preceding Quarterly Dividend Payment Date
or, with respect to the first Quarterly Dividend Payment Date,
since the first issuance of any share or fraction of a share of
Preferred Stock. In the event the Corporation shall at any time
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) into a greater or lesser number of shares of Common
Stock, as the case may be, then in each such case the amount to
which holders of shares of Preferred Stock were entitled
immediately prior to such event under clause (ii) 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 the Preferred Stock as provided in paragraph (A)
of this Section immediately after it declares a dividend or
distribution on the Common Stock (other than a dividend payable
in shares of Common Stock); PROVIDED THAT, in the event no
dividend or distribution shall have been declared on the Common
Stock during the period between any Quarterly Dividend Payment
Date and the next subsequent Quarterly Dividend Payment Date, a
dividend of $1.00 per share on the Preferred Stock shall
nevertheless be payable on such subsequent Quarterly Dividend
Payment Date.
(C) Dividends shall begin to accrue and be cumulative on
outstanding shares of Preferred Stock from the Quarterly Dividend
Payment Date next preceding the date of issue of such shares of
Preferred Stock, unless the date of issue of such shares is prior
to the record date for the first Quarterly Dividend Payment Date,
in which case dividends on such shares shall begin to accrue from
the date of issue of such shares, or unless the date of issue is
a Quarterly Dividend Payment Date or is a date after the record
date for the determination of holders of shares of Preferred
Stock entitled to receive a quarterly dividend and before such
-2-
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
Preferred Stock in an amount less than the total amount of such
dividends at the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such
shares at the time outstanding. The Board of Directors may fix a
record date for the determination of holders of shares of
Preferred Stock entitled to receive payment of a dividend or
distribution declared thereon, which record date shall be no more
than 60 days prior to the date fixed for the payment thereof.
SECTION 3. LIQUIDATION RIGHTS. In the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Corporation,
then, subject to the provisions of the Restated Articles of Incorporation
of the Corporation, the holders of shares of Preferred Stock shall be
entitled to receive, from the assets of the Corporation available for
distribution to shareholders, an amount equal to accrued and unpaid
dividends and distributions thereon, whether or not declared, to the date
of such payment plus an amount equal to the greater of (a) $10 per share
or (b) an aggregate amount per share, subject to the provision for
adjustment hereinafter set forth, equal to 100 times the aggregate amount
to be distributed per share to holders of shares of Common Stock. All such
preferential amounts shall be paid or set apart for payment before the
payment or setting apart for payment of any amount for, or the distribution
of any assets of the Corporation to, the holders of shares of any class of
stock ranking junior to the Preferred Stock as to assets, or the holders of
shares of any series of preferred stock ranking junior as to assets to
shares of Preferred Stock. In the event the Corporation shall at any time
declare or pay any dividend on 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) into a greater or lesser
number of shares of Common Stock, then in each such case the aggregate
amount to which holders of shares of Preferred Stock were entitled
immediately prior to such event under clause (b) of the next preceding
sentence of this Section 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.
SECTION 4. REDEMPTION. The shares of Preferred Stock shall not be
redeemable.
-3-
SECTION 5. VOTING RIGHTS. The holders of shares of Preferred Stock
shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set
forth, each share of Preferred Stock shall entitle the holder
thereof to 100 votes on all matters submitted to a vote of the
shareholders of the Corporation. In the event the Corporation
shall at any time declare or pay any dividend on 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) 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 Preferred Stock
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 or by law, the
holders of shares of Preferred Stock and the holders of shares of
Common Stock shall vote together as one class on all matters
submitted to a vote of shareholders of the Corporation.
(C) (i) If at any time dividends on any Preferred Stock
shall be in arrears in an amount equal to six quarterly dividends
thereon, the occurrence of such contingency shall ββββ the
beginning of a period (herein called a "default period") which
shall extend until such time when all accrued and unpaid
dividends for all previous quarterly dividend periods and for the
current quarterly dividend period on all shares of Preferred
Stock then outstanding shall have been declared and paid or set
apart for payment. During each default period, the holders of
Preferred Stock, voting as a class, shall have the right to elect
two (2) Directors.
(ii) During any default period, such voting right of
the holders of Preferred Stock may be exercised initially at a
special meeting called pursuant to subparagraph (iii) of this
Section 5(C) or at any annual meeting of shareholders, and
thereafter at annual meetings of shareholders, provided that
neither such voting right nor the right of the holders of
Preferred Stock as hereinafter provided to increase in certain
cases the authorized number of Directors shall be exercised
unless the holders of 25% in number of shares of Preferred Stock
outstanding shall be present in person or by proxy. The absence
of a quorum of the holders of Common Stock shall not affect the
exercise by the holders of Preferred Stock of such voting right.
-4-
At any meeting at which the holders of Preferred Stock shall
exercise such voting right initially during an existing default
period, they shall have the right, voting as a class, to elect
Directors to fill such vacancies, if any, in the Board of
Directors as may then exist up to two (2) Directors or, if such
right is exercised at an annual meeting, to elect two (2)
Directors. If the number which may be so elected at any special
meeting does not amount to the required number, the holders of
the Preferred Stock shall have the right to make such increase in
the number of Directors as shall be necessary to permit the
election by them of the required number. After the holders of
the Preferred Stock shall have exercised their right to elect
Directors in any default period and during the continuance of
such period, the number of Directors shall not be increased or
decreased except by vote of the holders of Preferred Stock as
herein provided.
(iii) Unless the holders of Preferred Stock shall,
during an existing default period, have previously exercised
their right to elect Directors, the Board of Directors may order,
or any shareholder or shareholders owning in the aggregate not
less than 10% of the total number of shares of Preferred Stock
outstanding may request, the calling of a special meeting of the
holders of Preferred Stock, which meeting shall thereupon be
called by the President, a Vice President or the Secretary of the
Corporation. Notice of such meeting and of any annual meeting at
which holders of Preferred Stock are entitled to vote pursuant to
this paragraph (C)(iii) shall be given to each holder of record
of Preferred Stock by mailing a copy of such notice to him at his
last address as the same appears on the books of the Corporation.
Such meeting shall be called for a time not earlier than 20 days
and not later than 60 days after such order or request; or in
default of the calling of such meeting within 60 days after such
order or request, such meeting may be called on similar notice by
any shareholder or shareholders owning in the aggregate not less
than 10% of the total number of shares of Preferred Stock
outstanding. Notwithstanding the provisions of this
paragraph (C)(iii), no such special meeting shall be called
during the period within 60 days immediately preceding the date
fixed for the next annual meeting of the shareholders.
(iv) In any default period the holders of Common Stock,
and other classes of stock of the Corporation if applicable,
shall continue to be entitled to elect the whole number of
Directors until the holders of Preferred Stock shall have
exercised their right to elect two (2) Directors voting as a
class, after the exercise of which right (x) the Directors so
elected by the holders of Preferred Stock shall continue in
-5-
office until their successors shall have been elected by such
holders or until the expiration of the default period, and
(y) any vacancy in the Board of Directors may (except as provided
in paragraph (C)(ii) of this Section 5) be filled by vote of a
majority of the remaining Directors theretofore elected by the
holders of the class of stock which elected the Director whose
office shall have become vacant. References in this paragraph
(C) to Directors elected by the holders of a particular class of
stock shall include Directors elected by such Directors to fill
vacancies as provided in clause (y) of the foregoing sentence.
(v) Immediately upon the expiration of a default
period, (x) the right of the holders of Preferred Stock as a
class to elect Directors shall cease, (y) the term of any
Directors elected by the holders of Preferred Stock as a class
shall terminate, and (z) the number of Directors shall be such
number as may be provided for in the restated Articles of
Incorporation or bylaws irrespective of any increase made
pursuant to the provisions of paragraph (C)(ii) of this Section 5
(such number being subject, however, to change thereafter in any
manner provided by law or in the Restated Articles of
Incorporation or bylaws). Any vacancies in the Board of
Directors effected by the provisions of clauses (y) and (z) in
the preceding sentence may be filled by a majority of the
remaining Directors.
(D) Except as set forth herein, holders of Preferred Stock
shall have no special voting rights and their consent shall not
be required (except to the extent they are entitled to vote with
holders of Common Stock as set forth herein) for taking any
corporate action.
SECTION 6. CERTAIN RESTRICTIONS.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Preferred Stock as provided in
Section 2 are in arrears, thereafter and until all accrued and
unpaid dividends and distributions, whether or not declared, on
shares of Preferred Stock 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 stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the
Preferred Stock;
-6-
(ii) declare or pay dividends on or make any other
distributions on any shares of stock ranking on a parity (either
as to dividends or upon liquidation, dissolution or winding up)
with the Preferred Stock, except dividends paid ratably on the
Preferred Stock and all such parity stock on which dividends are
payable or in arrears in proportion to the total amounts to which
the holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the
Preferred Stock; PROVIDED THAT the Corporation may at any time
redeem, purchase or otherwise acquire shares of any such junior
stock in exchange for shares of any stock of the Corporation
ranking junior (either as to dividends or upon dissolution,
liquidation or winding up) to the Preferred Stock; or
(iv) purchase or otherwise acquire for consideration
any shares of Preferred Stock, or any shares of stock ranking on
a parity with the Preferred Stock, except in accordance with a
purchase offer made in writing or by publication (as determined
by the Board of Directors) to all holders of such shares upon
such terms as the Board of Directors, after consideration of the
respective annual dividend rates and other relative rights and
preferences of the respective series and classes, shall determine
in good faith will result in fair and equitable treatment among
the respective series or classes.
(B) The 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 6, purchase or
otherwise acquire such shares at such time and in such manner.
SECTION 7. REACQUIRED SHARES. Any shares of Preferred Stock
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and canceled promptly after the acquisition thereof. All
such shares shall upon their cancellation become authorized but unissued
shares of Preferred Stock and may be reissued as part of a new series of
Preferred Stock to be created by resolution or resolutions of the Board of
Directors, subject to the conditions and restrictions on issuance set forth
herein.
SECTION 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
-7-
stock or securities, cash and/or any other property, then in any such case
the shares of Preferred Stock shall at the same time be similarly exchanged
or changed in an amount per share (subject to the provision for adjustment
hereinafter set forth) equal to 100 times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as the case
may be, into which or for which each share of Common Stock is changed or
exchanged. In the event the Corporation shall at any time declare or pay
any dividend on 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) into a greater or lesser number of shares of
Common Stock, then in each such case the amount set forth in the preceding
sentence with respect to the exchange or change of shares of Preferred
Stock shall be adjusted by multiplying such amount by a fraction the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such
event.
SECTION 9. AMENDMENT. The Restated Articles of Incorporation of the
Corporation shall not be amended in any manner which would materially alter
or change the powers, preferences or special rights of the Preferred Stock
so as to affect them adversely without the affirmative vote of the holders
of two-thirds or more of the outstanding shares of Preferred Stock, voting
together as a single class, PROVIDED, HOWEVER, that at any time that there
are no outstanding shares of Preferred Stock and no outstanding rights,
warrants or options to acquire shares of Preferred Stock, the Board of
Directors may amend the powers, preferences and rights of Preferred Stock
or convert such shares of Preferred Stock into authorized but unissued shares
of preferred stock which may be reissued as part of a new series of preferred
stock in accordance with the provisions of the Restated Articles of
Incorporation.
SECTION 10. FRACTIONAL SHARES. The Preferred Stock may be issued in
fractions of a share which shall entitle the holder, in proportion to such
holder's fractional shares, to exercise voting rights, receive dividends,
participate in distributions and have the benefit of all other rights of
holders of the Preferred Stock.
IN WITNESS WHEREOF, we have executed and subscribed this
Certificate and do affirm the foregoing as true under the penalties of
perjury.
Dated: ______________, 1997 ________________________________________
ββββ β. βββββββββ
Chief Executive Officer, President,
Chief Financial Officer and Treasurer
(Corporate Seal)
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EXHIBIT B
Form of Rights Certificate
Certificate No. R- _________ Rights
NOT EXERCISABLE AFTER JUNE 15, 2007, OR EARLIER IF REDEEMED BY
THE COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION
OF THE COMPANY, AT $.01 PER RIGHT ON THE TERMS SET FORTH IN THE
RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS
BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS SUCH TERM IS
DEFINED IN THE RIGHTS AGREEMENT) AND ANY SUBSEQUENT HOLDER OF
SUCH RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS REPRESENTED BY
THIS RIGHTS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A
PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN AFFILIATE OR
ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN
THE RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHTS CERTIFICATE AND
THE RIGHTS REPRESENTED HEREBY MAY BECOME NULL AND VOID IN THE
CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF SUCH AGREEMENT.]
RIGHTS CERTIFICATE
Manatron, 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 2, 1997 (the
"Rights Agreement") between Manatron, Inc., a Michigan corporation (the
"Company"), and Registrar and Transfer Company, a New Jersey corporation
(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., local time in the city of office of the Rights Agent
designated for such purpose, on June 15, 2007, at such office of the Rights
Agent designated for such purpose, or such office of any successor Rights
Agent, one one-hundredth of a fully paid, nonassessable share of Series A
Preferred Stock (the "Preferred Stock") of the Company, at a purchase price
of $20 per one one-hundredth of a share (the "Purchase Price"), upon
presentation and surrender of this Rights Certificate with the Form of
Election to Purchase duly executed. The number of Rights evidenced by this
Rights Certificate (and the number of one one-hundredths of a share of
Preferred Stock which may be purchased upon exercise thereof) set forth
______________________
The portion of the legend in brackets shall be inserted only if
applicable.
above, and the Purchase Price per one one-hundredth of a share set forth
above, are the number and Purchase Price as of June 16, 1997, based on the
Preferred Stock as constituted at such date.
As provided in the Rights Agreement, the Purchase Price and the
number and kind of shares of Preferred Stock or other securities which may
be purchased upon the exercise of the Rights evidenced by this Rights
Certificate are subject to modification and adjustment upon the happening
of certain events.
This Rights 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, and the obligations,
duties and immunities hereunder of the Rights Agent, the Company and the
holders of the Rights Certificates. Copies of the Rights Agreement are on
file at the office of the Rights Agent.
This Rights Certificate, with or without other Rights
Certificates, upon surrender at the office of the Rights Agent designated
for such purpose, may be exchanged for another Rights Certificate or Rights
Certificates of like tenor and date evidencing Rights entitling the holder
to purchase a like aggregate number of one one-hundredths of a share of
Preferred Stock as the Rights evidenced by the Rights Certificate or Rights
Certificates surrendered shall have entitled such holder to purchase. If
this Rights Certificate shall be exercised in part, the holder shall be
entitled to receive upon surrender hereof another Rights Certificate or
Rights Certificates for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights
evidenced by this Certificate may be redeemed by the Company at its option
at the redemption price of $.01 per Right. Under certain circumstances set
forth in the Rights Agreement, the decision to redeem shall require the
concurrence of two-thirds of the Disinterested Directors. After the
redemption period has expired, the Company's right of redemption may be
reinstated if an Acquiring Person (as such term is defined in the Rights
Agreement) reduces his beneficial ownership to 10% or less of the
outstanding shares of Common Stock in a transaction or series of
transactions not involving the Company.
No fractional shares of Preferred Stock will be issued upon the
exercise of any Rights evidenced hereby (other than fractions which are
integral multiples of one one-hundredth of a share of Preferred Stock), but
in lieu thereof a cash payment will be made, as provided in the Rights
Agreement.
No holder of this Rights Certificate shall be entitled to vote or
receive dividends or be deemed for any purpose the holder of shares of
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Preferred Stock or of any other securities of the Company which may at any
time be issuable on the exercise hereof, nor shall anything contained in
the Rights Agreement or herein be construed to confer upon the holder
hereof, as such, any of the rights of a shareholder of the Company,
including the right to vote for the election of directors or upon any
matter submitted to shareholders at any meeting thereof, or to give or
withhold consent to any corporate action, or to receive notice of meetings
or other actions affecting shareholders (except as provided in the Rights
Agreement), or to receive dividends or subscription rights, or otherwise,
until the Rights evidenced by this Rights Certificate shall have been
exercised as provided in the Rights Agreement.
This Rights 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 officer of the
Company and its corporate seal. Dated as of _______________, 1997.
Attest: MANATRON, INC.
By____________________________ By _____________________________________
ββββ β. βββ ββββ β. βββββββββ
Secretary Chief Executive Officer, President,
Chief Financial Officer and Treasurer
Countersigned:
Attest: REGISTRAR AND TRANSFER COMPANY
By____________________________ By _____________________________________
Title _______________________________
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Form of Reverse Side of Rights Certificate
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Rights Certificate.)
FOR VALUE RECEIVED, ____________________________________ hereby
sells, assigns and transfers unto _________________________________________
___________________________________________________________________________
(Please print name and address of transferee)
___________________________________________________________________________
this Rights Certificate, together with all right, title and interest
therein, and does hereby irrevocably constitute and appoint ______________
_________ Attorney, to transfer the Rights Certificate on the books of the
Company, with full power of substitution.
Dated:___________________________
___________________________________
Signature
Signature Guaranteed:
CERTIFICATE
The undersigned hereby certifies by checking the appropriate
boxes that:
(1) this Rights Certificate ___ is ___ is not being sold,
assigned or transferred by or on behalf of a Person who is or was
an Acquiring Person or an Affiliate or Associate of any such
Acquiring Person (as such terms are defined in the Rights
Agreement);
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(2) after due inquiry and to the best knowledge of the
undersigned, it ___ did ___ did not acquire the Rights evidenced
by this Rights Certificate from any Person who is, was or
subsequently became an Acquiring Person or an Affiliate or
Associate of an Acquiring Person.
Dated:_____________________ ___________________________________
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Assignment and Certificate
must correspond to the name as written upon the face of this Rights
Certificate in every particular, without alteration or enlargement or
any change whatsoever.
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FORM OF ELECTION TO PURCHASE
(To be executed by the registered holder if such holder
desires to exercise the Rights Certificate.)
To Manatron, Inc.:
The undersigned hereby irrevocably elects to exercise
_____________ Rights represented by this Rights Certificate to purchase
Preferred Stock (or such other securities of the Company or of any
other person that may be issuable upon the exercise of the Rights)
issuable upon the exercise of such Rights and requests that
certificates for such shares be issued in the name of:
Please insert social security
or other tax identifying number:
_______________________________________________________________________
(Please print name and address)
_______________________________________________________________________
If such number of Rights shall not be all the Rights
evidenced by this Rights Certificate, a new Rights Certificate for the
balance of remaining Rights shall be registered in the name of and
delivered to:
Please insert social security
or other tax identifying number:
_______________________________________________________________________
(Please print name and address)
_______________________________________________________________________
Dated: ___________________
____________________________________
Signature
Signature Guaranteed:
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CERTIFICATE
The undersigned hereby certifies by checking the appropriate
boxes that:
(1) the Rights evidenced by this Rights Certificate
___ are ___ are not being exercised by or on behalf of a
Person who is or was an Acquiring Person or an Affiliate or
Associate of any such Acquiring Person (as such terms are
defined 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 Rights Certificate from any Person who is,
was or became an Acquiring Person or an Affiliate or
Associate of an Acquiring Person.
Dated: _______________________ _______________________________
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Election to Purchase and
Certificate must correspond to the name as written upon the face of
this Rights Certificate in every particular, without alteration or
enlargement or any change whatsoever.
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EXHIBIT C
SUMMARY OF RIGHTS TO PURCHASE
SERIES A PREFERRED STOCK
On March 27, 1997, the Board of Directors of Manatron, Inc. (the
"Company") approved a Series A Preferred Stock Purchase Rights Plan. Under
the plan, one Series A Preferred Stock Purchase Right will attach to each
share of common stock, no par value (the "Common Stock"), of the Company
outstanding on June 16, 1997. Each Right entitles the registered holder to
purchase from the Company one one-hundredth of a share of Series A Preferred
Stock, no par value (the "Preferred Stock"), at a price of $20 per share
(the "Purchase Price"), subject to adjustment. The description and terms
of the Rights are set forth in a Rights Agreement (the "Rights Agreement")
between the Company and Registrar and Transfer Company, as Rights Agent (the
"Rights Agent").
The Rights will be represented by certificates for Common Stock
and will not be exercisable or transferable apart from the Common Stock
until the earlier of
(a) the tenth day after a public announcement that (i)
a person or group of affiliated persons who did not
beneficially own 15% or more of the outstanding shares of
Common Stock on June 16, 1997, or any affiliates or
associates of such person, acquired, or obtained the right to
acquire, beneficial ownership of 15% or more of the
outstanding shares of Common Stock, or (ii) that a person or
affiliated group of persons who beneficially owned 15% or
more of the outstanding shares of Common Stock on June 16,
1997, or any affiliates or associates of such person,
acquired, or obtained the right to acquire, beneficial
ownership of 20% or more of the outstanding shares of Common
Stock (such person described in (i) or (ii), above, being
referred to as an "Acquiring Person" and the date upon which
such person becomes an Acquiring Person being referred to as
the "Stock Acquisition Date"), or
(b) the tenth day after the commencement or
announcement of an intention to commence a tender or exchange
offer, the consummation of which would result in beneficial
ownership by a person of 30% or more of the outstanding
shares of Common Stock (the earlier of such dates in (a) or
(b), above, being called the "Distribution Date").
The Rights Agreement provides that, until the Distribution Date,
the Rights shall be transferred with and only with such Common Stock
certificates. New Common Stock certificates issued after June 16, 1997,
but prior to the Distribution Date (or if earlier, the redemption or
expiration of the Rights), will contain a notation incorporating the
Rights Agreement by reference. Until the Distribution Date (or, if
earlier, the redemption or expiration of the Rights), the surrender for
transfer of any certificates for Common Stock shall also constitute the
transfer of the Rights associated with the Common Stock represented by
such certificates. As soon as practicable following the Distribution
Date, separate certificates evidencing the Rights (the "Rights
Certificates") will be mailed to holders of record of the Common Stock
as of the close of business on the Distribution Date and such separate
Rights Certificates alone will evidence the Rights. Except as otherwise
determined by the Board of Directors, only shares of Common Stock issued
prior to the Distribution Date will be issued with Rights.
The Rights are not exercisable until the Distribution Date.
The Rights will expire on June 15, 2007, unless earlier redeemed by the
Company as described below.
The Purchase Price payable, and the number of one one-hundredths
of a share of Preferred Stock or other securities or property issuable,
upon exercise of the Rights is subject to adjustment from time to time to
prevent dilution (i) in the event of a stock dividend on, or a subdivision,
combination or reclassification of, the Preferred Stock, (ii) upon the grant
to holders of the Preferred Stock of certain rights or warrants to subscribe
for Preferred Stock or convertible securities at less than the current
market price of the Preferred Stock, or (iii) upon the distribution to
holders of the Preferred Stock of evidences of indebtedness or assets
(excluding regular periodic cash dividends out of earnings or retained
earnings at a rate not in excess of 125% of the rate of the last cash
dividend theretofore paid or dividends payable in Preferred Stock) or of
subscription rights or warrants (other than those referred to above).
With certain exceptions, no adjustment in the Purchase Price will
be required until cumulative adjustments require an adjustment of at least
1% in such Purchase Price. No fractional shares of Preferred Stock (other
than fractions which are integral multiples of one one-hundredth of a share
of Preferred Stock) will be issued and in lieu thereof, an adjustment in
cash will be made based on the market price of the Preferred Stock on the
last trading date prior to the date of exercise.
In the event that, any time following the Stock Acquisition
Date, the Company were acquired in a merger or other business combination
transaction or in the event 50% or more of its assets or earning power
were sold, proper provision shall be made so that each holder of a Right
shall thereafter have the right to receive, upon the exercise thereof at
the then current exercise price of the Right, that number of shares of
common stock of the acquiring company which at the time of such
transaction would have a market value of two times the exercise price of
the Right. Alternatively, in the event that, any time following the
Distribution Date, the Company were the surviving corporation in a merger
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with an Acquiring Person and its Common Stock was not changed or exchanged,
or in the event that an Acquiring Person engages in one of a number of
self-dealing transactions specified in the Rights Agreement, or in the
event that an Acquiring Person becomes the beneficial owner of more than
30% of the then outstanding shares of Common Stock (except pursuant to an
offer for all outstanding shares of Common Stock), proper provision shall
be made so that each holder of a Right, other than the Acquiring Person
(whose Rights will thereafter be void), will thereafter have the right to
receive upon exercise of a Right that number of shares of Common Stock
having a market value of two times the exercise price of such Right.
At any time prior to the close of business on the thirtieth day
after the Stock Acquisition Date, the Company may redeem the Rights in
whole, but not in part, at a price of $.01 per Right (the "Redemption
Price"). Under certain circumstances set forth in the Rights Agreement,
the decision to redeem shall require the concurrence of a majority of the
Disinterested Directors, which is defined to mean any member of the Board
of Directors who was a member of the Board prior to the date of the Rights
Agreement, and any person who is subsequently elected to the Board if such
person is recommended or approved by a majority of the Disinterested
Directors. Disinterested Directors do not include an Acquiring Person, or
an affiliate or associate of an Acquiring Person, or any representative of
the foregoing entities. After the redemption period has expired, the right
to redeem may be reinstated if an Acquiring Person reduces his ownership
of Common Stock to 10% or less of the then outstanding shares of Common
Stock in one or more transactions not involving the Company. Immediately
upon the action of the Board of Directors of the Company electing to redeem
the Rights, the Company shall make announcement thereof, and upon such
election, the right to exercise 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 shareholder of the Company, including, without limitation,
the right to vote or to receive dividends. While the distribution of the
Rights will not be taxable to shareholders or to the Company, shareholders
will recognize taxable income if the Rights are redeemed and may, depending
on the circumstances, recognize taxable income when the Rights become
exercisable or are exercised.
Other than those provisions relating to the principal economic
terms of the Rights, any of the provisions of the Rights Agreement may be
amended by the Board of Directors of the Company prior to the Distribution
Date. After the Distribution Date, the provisions of the Rights Agreement
may be amended by the Board (in certain circumstances, with the concurrence
of the Disinterested Directors) in order to cure any ambiguity, to make
changes which do not adversely affect the interests of holders of Rights,
or to shorten or lengthen any time period under the Rights Agreement, so
long as no amendment to adjust the time period governing redemption shall
be made at a time when the Rights are not redeemable.
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A copy of the Rights Agreement has been filed with the Securities
and Exchange Commission as an Exhibit to a Registration Statement on Form
8-A. A copy of the Rights Agreement is available 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
hereby incorporated herein by reference.
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