WILLAMETTE INDUSTRIES, INC.
and
FIRST INTERSTATE BANK OF OREGON, N. A.
Rights Agent
Rights Agreement
Dated as of February 26, 1990
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TABLE OF CONTENTS
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Section
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Table of Defined Terms iii
1 Certain Definitions 1
2 Appointment of Rights Agent 4
3 Issuance of Right Certificates 5
4 Form of Right Certificates 7
5 Countersignature and Registration 7
6 Transfer, Split Up, Combination and
Exchange of Right Certificates;
Mutilated, Destroyed, Lost or Stolen
Right Certificates 8
7 Exercise of Rights; Purchase Price;
Expiration Date of Rights 9
8 Cancellation and Destruction of
Right Certificates 11
9 Reservation and Availability of
Capital Shares 12
10 Preferred Shares Record Date 13
11 Adjustment of Purchase Price,
Number of Shares or Number of Rights 13
12 Certificate of Adjusted Purchase Price
or Number of Shares 22
13 Consolidation, Merger, Statutory Plan
of Exchange or Sale or Transfer of Assets
or Earning Power 22
14 Fractional Rights and Fractional Shares 27
15 Rights of Action 28
16 Agreement of Right Holders 28
17 Right Holders and Right Certificate
Holders Not Deemed Shareholders 29
18 Concerning the Rights Agent 30
19 Merger or Consolidation or Change
of Name of Rights Agent 30
20 Duties of Rights Agent 31
21 Change of Rights Agent 33
22 Issuance of New Right Certificates 34
23 Redemption and Termination 35
24 Exchange 36
25 Notice of Certain Events 38
26 Notices 39
27 Supplements and Amendments 39
28 Successors 40
29 Benefits of Agreement 40
30 Severability 41
31 Determinations and Actions by the
Board of Directors, etc. 41
32 Governing Law 41
33 Counterparts 42
34 Descriptive Headings 42
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Exhibit A -- Form of Articles of Amendment
Exhibit B -- Form of Right Certificate
Exhibit C -- Form of Summary of Rights
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TABLE OF DEFINED TERMS
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Term Defined
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Acquiring Person
Adjustment Shares
Affiliate
Agreement
Associate
Beneficial Owner
Board of Directors
Business Day
Close of Business
Common Shares
common stock equivalents
Company (Willamette Industries, Inc. )
Company (Following a Section 13 event)
current market value of a whole right (for purposes of fractional
Rights and fractional shares)
current market value of one one-hundredth of a Preferred Share
(for purposes of fractional Rights and fractional shares)
current per share market price of the Common Shares current per share market
price of the Preferred Shares Distribution Date equivalent preferred shares
Exchange Act Exchange Date Exchange Ratio Final Expiration Date NASDAQ Person
Plan (Employee Benefit Plan) Preferred Shares Principal Party Purchase Price
Record Date Redemption Date Redemption Price Registered Common Shares Right
Rights Agent Sanctioned Tender Offer Section 11(a)(ii) event Section 13 event
Shareholder Stand-Together Agreement Shares Acquisition Date Subsidiary Summary
of Rights Trading Day
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RIGHTS AGREEMENT
This Rights Agreement (the "Agreement") dated as of February 26,
1990, between W1LLAMETTE INDUSTRIES, INC. , an Oregon corporation (the
"Company"), and FIRST INTERSTATE BANK OF OREGON, N. A. , a national banking
association (the "Rights Agent");
W I T N E S S S E T H :
WHEREAS the Board of Directors of the Company (the "Board of
Directors") has authorized and declared a dividend distribution of one right (a
"Right") for each Common Share (as defined) of the Company outstanding at the
Close of Business (as defined) on February 26, 1990 (the "Record Date"), upon
the terms and subject to the conditions herein set forth;
WHEREAS each such Right shall represent the right to purchase one
one-hundredth of a share of Series A Junior Participating Preferred Stock, $. 50
par value, of the Company, and shall have the preferences, limitations and
relative rights set forth in the Articles of Amendment attached hereto as
Exhibit A; and
WHEREAS the Board of Directors has further authorized the issuance
of one Right with respect to each Common Share that shall become outstanding
between the Record Date and the earliest of the Distribution Date, the
Redemption Date and the Final Expiration Date (as such terms are defined in
Sections 3 and 7);
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
Section 1. Certain Definitions. For purposes of this Agreement, the
following terms have the meanings indicated:
(a) "Acquiring Person" shall mean any Person (as defined) who or
which, together with all Affiliates and Associates (as defined) of such Person,
shall be the Beneficial Owner (as defined) of 20 percent or more of the Common
Shares of the Company then outstanding; provided, however, that an Acquiring
Person shall not include (i) the Company, any Subsidiary of the Company, any
employee benefit plan ("Plan") of the Company or of a Subsidiary of the Company,
or any Person holding Common Shares for or pursuant to the terms of any such
Plan, (ii) any Person who is a party to the Shareholder Stand-Together Agreement
(as defined) but only while such Person remains a party thereto or (iii) any
Person who becomes such a Beneficial Owner as the result of a Sanctioned Tender
Offer. For purposes of this subsection (a), in determining the percentage of the
outstanding shares of Common Shares with respect to which a Person is the
Beneficial Owner (A) all shares as to which such
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Person is deemed the Beneficial Owner shall be deemed outstandingand (B) shares
which are subject to issuance upon the exercise or conversion of outstanding
conversion rights, rights, warrants and options other than those referred to in
(A) shall not be deemed outstanding. Any determination made by the Board of
Directors as to whether any Person is or is not an Acquiring Person shall be
conclusive and binding upon all holders of Rights.
(b) "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as in
effect on the
date hereof.
(c) A Person shall be deemed the "Beneficial Owner" of and shall be
deemed to "beneficially own" any securities:
(i) which such Person or any of such Person's Affiliates or
Associates beneficially owns, directly or indirectly, for purposes of
Section 13(d) of the Exchange Act and Regulation 13D-G thereunder (or any
comparable or successor law or regulation), in each case as in effect on
the date hereof; or
(ii) which such Person or any of such Person Affiliates or
Associates has (A) the right to acquire (whether such right is exercisable
immediately or only after the passage of time or the fulfillment of a
condition or both) pursuant to any agreement, arrangement or understanding
(other than customary arrangements with and between underwriters and
selling group members with respect to a bona fide public offering of
securities), or upon the exercise of conversion rights, exchange rights,
rights (other than the Rights), warrants or options, or otherwise;
provided, however, that a Person shall not be deemed the Beneficial Owner
of, or to beneficially own, securities tendered pursuant to a tender or
exchange offer made by or on behalf of such Person or any of such Person's
Affiliates or Associates until such tendered securities are accepted for
purchase or exchange; or (B) the right to vote, alone or in concert with
others, pursuant to any agreement, arrangement or understanding; provided,
however, that a Person shall not be deemed the Beneficial Owner of, or to
beneficially own, any security under this clause (B) if the agreement,
arrangement or understanding to vote such security (1) arises solely from
a revocable proxy given to such Person or any of such Person's Affiliates
or Associates in response to a public proxy solicitation made pursuant to,
and in accordance with, the applicable rules and regulations of the
Exchange Act and (2) is not also then reportable on Schedule 13D under the
Exchange Act (or any comparable or successor report); or
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(iii) which are beneficially owned, directly or indirectly, by
any other Person (or any Affiliate or Associate of such other Person) with
which such Person or any of such Person's Affiliates or Associates has any
agreement, arrangement or understanding (other than customary arrangements
with and between underwriters and selling group members with respect to a
bona fide public offering of securities) for the purpose of acquiring,
holding, voting (other than voting pursuant to a revocable proxy as
described in the provison to Section l(c)(ii)(B)) or disposing of any
securities of the Company.
(d) "Business Day" shall mean any day other than a Saturday, Sunday
or a day on which banking institutions in the state of Oregon are authorized or
obligated by law or executive order to close.
(e) "Close of Business" on any given date shall mean 5 p. m. ,
Portland, Oregon time, on such date; provided, however, that if such date is not
a Business Day, it shall mean 5 p. m. , Portland, Oregon time, on the next
succeeding Business Day.
(f) "Common Shares" when used with reference to the Company (or
without express reference to another Person) shall mean shares of Common Stock,
$. 50 par value, of the Company or any other shares of capital stock of the
Company into which the Common Shares are reclassified or changed. "Common
Shares" when used with reference to any Person other than the Company shall mean
shares of the common stock of such Person (or other class of equity securities
or equity interests) having power to control or direct the management of such
Person or, if such Person is a Subsidiary of another Person, of the Person which
ultimately controls such first-mentioned Person and which has issued and
outstanding such common stock (or such other class of equity securities or
equity interests).
(g) "Person" shall mean any individual, firm, partnership,
corporation, association, group (as such term is used in Rule 13d-5 under the
Exchange Act) or other entity, and shall include any successor (by merger or
otherwise) of such entity.
(h) "Preferred Shares" shall mean shares of Series A Junior
Participating Preferred Stock, $. 50 par value, of the Company.
(i) "Purchase Price" shall mean the price to be paid for each one
one-hundredth of a Preferred Share pursuant to the exercise of a Right, which
price is, as of the date hereof, as set forth in Section 7(c). The Purchase
Price is subject to adjustment from time to time as set forth in Sections 11 and
13.
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(j) "Sanctioned Tender Offer" shall mean a tender or exchange offer
for all outstanding Common Shares of the Company at a price and on terms which a
majority of the Board of Directors determines to be fair to the shareholders of
the Company (taking into account all factors that the Board of Directors deems
relevant including, without limitation, prices that could reasonably be achieved
if the Company or its assets were sold on an orderly basis designed to realize
maximum value) and otherwise in the best interests of the Company and its
shareholders (other than the Person or any Affiliate or Associate thereof on
whose behalf the offer is being made); provided, however, that (i) such
determination is made by the Board of Directors prior to the purchase of shares
under such tender or exchange offer and (ii) a majority of the members of the
Board of Directors are not Acquiring Persons or Affiliates, Associates, nominees
or representatives of an Acquiring Person.
(k) "Shareholder Stand-Together Agreement" shall mean (i) that
certain agreement dated as of January 21, 1985, as extended, supplemented or
amended from time to time and (ii) any similar agreement in which a majority of
the individuals who are the initial "Representatives" thereunder (however
designated) are individuals who, at any time, constituted a majority of the
Representatives in office under the agreement referred to in clause (i) above,
as extended, supplemented or amended from time to time.
(l) "Shares Acquisition Date" shall mean the first date of public
announcement (which, for the purposes of this definition, shall include, without
limitation, a report filed pursuant to Section 13(d) under the Exchange Act) by
the Company or an Acquiring Person that an Acquiring Person has become such.
(m) "Subsidiary" shall mean, with reference to any Person, any
corporation or other entity of which an amount of the voting securities
sufficient to elect at least a majority of the directors of such corporation or
the members of the governing body of such other entity, as the case may be, is
beneficially owned, directly or indirectly, by such Person or otherwise
controlled by such Person.
Section 2. Appointment of Rights Agent. The Company hereby appoints
the Rights Agent to act as agent for the Company and the holders of the Rights
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. Issuance of Right Certificates.
(a) Until the earlier of the Close of Business (i) on the 10th day
after the Shares Acquisition Date or (ii) on the 10th Business Day (or such
later date as may be determined by the
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Board of Directors prior to such time as any Person becomes an Acquiring Person)
after the date of the commencement by any Person (other than the Company, any
Subsidiary of the Company, any Plan of the Company or of any Subsidiary of the
Company, or any entity holding Common Shares of the Company for or pursuant to
the terms of any such Plan) of, or of the first public announcement of the
intention of any Person (other than the Company, any Subsidiary of the Company,
any Plan of the Company or of any Subsidiary of the Company, or any entity
holding Common Shares of the Company for or pursuant to the terms of any such
Plan) to commence, a tender or exchange offer (other than a Sanctioned Tender
Offer) the consummation of which would result in any Person becoming the
Beneficial Owner of 30 percent or more of the outstanding Common Shares of the
Company, 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 described in
clauses (i) and (ii) being herein referred to as the "Distribution Date"), (x)
the Rights will be evidenced by the certificates for Common Shares of the
Company (which certificates shall also be deemed to be Right Certificates) or,
as the case may be, certificates issued subsequent to the Record Date and
bearing the legend set forth in Section 3(c) (and, in neither case, by separate
Right Certificates) and the record holders of such certificates for Common
Shares shall be the record holders of the Rights represented thereby and (y) the
Rights and the right to receive Right Certificates will be transferable only
simultaneously with and together with the transfer of Common Shares of the
Company. Until the Distribution Date (or the earlier of the Redemption Date or
the Final Expiration Date), the surrender for transfer of such certificates for
Common Shares shall also constitute the surrender for transfer of the Rights
associated with the Common Shares represented thereby. As soon as practicable
after the Distribution Date, after notification by the Company, the Rights Agent
will send, by first-class, postage-prepaid mail, to each record holder of Common
Shares of the Company as of the Close of Business on the Distribution Date, at
the address of such holder shown on the records of the Company, a Right
Certificate, in substantially the form of Exhibit B hereto, evidencing one Right
for each Common Share so held. As of the Distribution Date, the Rights will be
evidenced solely by such Right Certificates and may be transferred by the
transfer of the Right Certificates as permitted hereby, separately and apart
from any transfer of one or more shares of Common Shares, and the holders of
such Right Certificates as listed in the records of the Company or any transfer
agent or registrar for the Rights shall be the record holders thereof.
(b) On the Record Date, or as soon as practicable thereafter, the
Company will send a copy of a Summary of the Rights in substantially the form
attached hereto as Exhibit C (the "Summary of Rights"), by first-class,
postage-prepaid mail, to each record holder of Common Shares of the Company as
of the
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close of business on the Record Date, at the address of such holder shown on the
records of the Company.
(c) Rights shall be issued in respect of all Common Shares of the
Company which are issued after the Record Date but prior to the earliest of the
Distribution Date, the Redemption Date, the Exchange Date or the Final
Expiration Date. Certificates for such Common Shares shall also be deemed to be
certificates for Rights, and shall bear the following legend:
This certificate also evidences and entitles the holder hereof to certain
Rights as set forth in a Rights Agreement between Willamette Industries,
Inc. (the "Company"), and First Interstate Bank of Oregon, N. A. , as
Rights Agent, dated as of February 26, 1990 (the "Rights Agreement"), the
terms of which are hereby incorporated herein by reference and a copy of
which is on file at the principal executive offices of the Company. Under
certain circumstances, as set forth in the Rights Agreement, such Rights
will be evidenced by separate certificates and will no longer be evidenced
by this certificate. The Company will mail to the holder of this
certificate a copy of the Rights Agreement without charge after receipt of
a written request therefor. Under certain circumstances, Rights
beneficially owned by an Acquiring Person or any Affiliate or Associate
thereof (as such terms are defined in the Rights Agreement) and any
subsequent holder of such Rights may become null and void.
(d) Certificates for Common Shares, if any, issued after the
Distribution Date but prior to the earlier of the Redemption Date or the Final
Expiration Date shall bear the following legend:
This certificate does not evidence any Right issued pursuant to the terms
of a Rights Agreement between Willamette Industries, Inc. , and First
Interstate Bank of Oregon, N. A. , dated as of February 26, 1990.
Section 4. Form of Right Certificates. The Right Certificates (and
the forms of election to purchase, assignment and certificate to be printed on
the reverse thereof), when, as and if issued, shall be substantially the same as
Exhibit B hereto and may have such marks of identification or designation and
such legends, summaries or endorsements printed thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of this 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 Common Shares of the Company or 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 Right
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Certificates, whenever issued, which are issued in respect of Common Shares
which were issued and outstanding as of the Close of Business on the
Distribution Date, shall be dated as of the Close of Business on the
Distribution Date, and on their face shall entitle the holders thereof to
purchase such number of Preferred Shares (including fractional shares which are
integral multiples of one one-hundredth of a share) as shall be set forth
therein at the price per one one-hundredth of a Preferred Share set forth
therein, but the amount and type of securities purchasable upon exercise of each
Right and the Purchase Price shall be subject to adjustment as provided herein.
Section 5. Countersignature and Registration.
(a) The Right Certificates shall be executed on behalf of the
Company by its 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 Right
Certificates shall be countersigned manually by the Rights Agent and shall not
be valid for any purpose unless so countersigned. In case any officer of the
Company who shall have signed any of the Right Certificates shall cease to be
such officer of the Company before countersignature by the Rights Agent and
issuance and delivery by the Company, such Right Certificates, nevertheless, may
be countersigned by the Rights Agent, and issued and delivered by the Company
with the same force and effect as though the person who signed such Right
Certificates had not ceased to be such officer of the Company; and any Right
Certificate may be signed on behalf of the Company by any person who, at the
actual date of the execution of such Right Certificate, shall be a proper
officer of the Company to sign such Right Certificate, although at the date of
the execution of this Agreement any such person was not such an officer.
(b) Following the Distribution Date, the Rights Agent will keep or
cause to be kept, at one of its offices in Portland, Oregon, books for
registration and transfer of the Right Certificates issued hereunder. Such books
shall show the names and addresses of the respective holders of the Right
Certificates, the number of Rights evidenced on its face by each of the Right
Certificates and the date of each of the Right Certificates.
Section 6. Transfer, Split Up, Combination and Exchange of Right
Certificates; Mutilated, Destroyed, Lost or Stolen Right Certificates.
(a) Subject to the provisions of Sections 7(f) and 14 hereof, at any
time after the Close of Business on the Distribution Date, and at or prior to
the Close of Business on
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earlier of the Redemption Date or the Final Expiration Date, any Right
Certificate or Right Certificates may be transferred, split up, combined or
exchanged for another Right Certificate or Right Certificates, entitling the
registered holder to purchase a like number of Preferred Shares as the Right
Certificate or Right Certificates surrendered then entitled such holder to
purchase. Any registered holder desiring to transfer, split up, combine or
exchange any Right Certificate shall make such request in writing delivered to
the Rights Agent, and shall surrender the Right Certificate or Right
Certificates to be transferred, split up, combined or exchanged at the office of
the Rights Agent with the form of assignment on the reverse side thereof (or
with a written instrument of transfer in form satisfactory to-the Company and
the Rights Agent enclosed with such Right Certificate), executed by the
registered holder thereof or his attorney authorized in writing, and with such
signature guaranteed. Neither the Rights Agent nor the Company shall be
obligated to take any action whatsoever with respect to the transfer of any such
surrendered Right Certificate until the certificate set forth following the form
of assignment on the reverse side of such Right Certificate shall have been
completed and executed by the registered holder thereof or his attorney
authorized in writing, and the Company shall have been provided such additional
evidence of the identity of the Beneficial Owner (or former Beneficial Owner) of
the Rights represented by such Right Certificate or the Affiliates or Associates
of such Beneficial Owner (or former Beneficial Owner) as the Company shall
reasonably request. Upon receipt of such executed form of assignment and
certificate and of such additional evidence, if requested, the Rights Agent
shall countersign and deliver to the person entitled thereto a Right Certificate
or Right Certificates, as the case may be, as so requested. The Company may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer, split up, combination or
exchange of Right Certificates.
(b) Upon receipt by the Company and the Rights Agent of evidence
reasonably satisfactory to them of the loss, theft, destruction or mutilation of
a Right Certificate, and, in case of loss, theft or destruction, of indemnity or
security reasonably satisfactory to them, and, at the Company's request,
reimbursement to the Company and the Rights Agent of all reasonable expenses
incidental thereto, and upon surrender to the Rights Agent and cancellation of
the Right Certificate if mutilated, the Company shall issue and deliver a new
Right Certificate of like tenor to the Rights Agent for delivery to the
registered owner in lieu of the Right Certificate so lost, stolen, destroyed or
mutilated.
Section 7. Exercise of Rights; Purchase Price; Expiration Date of
Rights.
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(a) Until the Distribution Date, no Right may be exercised.
(b) The registered holder of any Right Certificate may exercise the
Rights evidenced thereby (except as otherwise provided herein) in whole or in
part at any time after the Distribution Date upon surrender of the Right
Certificate, with the form of election to purchase on the reverse side thereof
and certificate thereon duly executed (with signatures duly guaranteed), to the
Rights Agent at the office or agency of the Rights Agent designated for such
purpose, together with payment of the Purchase Price with respect to each Right
exercised, at or prior to the earliest of (i) the Close of Business on February
25, 2000 (the "Final Expiration Date"), (ii) the consummation of a transaction
contemplated by Section 13(e), (iii) the time at which such Rights are exchanged
(the "Exchange Date") as provided in Section 24, or (iv) the time at which the
Rights are redeemed (the "Redemption Date") as provided in Section 23.
(c) The Purchase Price for each one one-hundredth of a Preferred
Share pursuant to the exercise of a Right shall initially be $175, and shall be
payable in lawful money of the United States of America in accordance with
Section 7(d) hereof. The Purchase Price and the number of Preferred Shares to be
acquired upon exercise of a Right shall be subject to adjustment from time to
time as provided in Sections 11 and 13.
(d) Upon receipt of a Right Certificate representing exercisable
Rights, with the form of election to purchase and form of certificate thereon
duly executed, accompanied by payment of the Purchase Price for the shares to be
purchased and an amount equal to any applicable transfer tax required to be paid
by the holder of such Right Certificate in accordance with Section 9 in cash, or
by bank certified check or bank draft payable to the order of the Company, and
such additional evidence of the identity of the Beneficial Owner (or former
Beneficial Owner) of the Rights represented by such Right Certificate or the
Affiliates or Associates thereof as the Company may reasonably request, the
Rights Agent shall thereupon promptly (i) requisition from any transfer agent of
the Preferred Shares certificates for the number of Preferred Shares to be
purchased and the Company hereby irrevocably authorizes its transfer agent to
comply with all such requests, and/or, as provided in Section 14, requisition
from the depositary agent depositary receipts representing such number of one
one-hundredths of a Preferred Share as are to be purchased (in which case
certificates for the Preferred Shares represented by such receipts shall be
deposited by the transfer agent with the depositary agent) and the Company will
direct the depositary agent to comply with such request, (ii) when appropriate,
requisition from the Company the amount of cash to be paid in lieu of issuance
of fractional shares in accordance with
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Section 14, (iii) promptly after receipt of such certificates or depositary
receipts, cause the same to be delivered to or upon the order of the registered
holder of such Right Certificate, registered in such name or names as may
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 Right
Certificate. Notwithstanding the foregoing provisions of this Section 7(d), the
Company may suspend the issuance of Preferred Shares upon exercise of Rights for
a reasonable period, not in excess of 90 days, during which the Company seeks to
register under the Securities Act of 1933, as amended, and any applicable
securities law of any jurisdiction, the Preferred Shares to be issued pursuant
to the Rights; provided, however, that nothing contained in this Section 7(d)
shall relieve the Company of its obligations under Section 9(c).
(e) In case the registered holder of any Right Certificate shall
exercise less than all the Rights evidenced thereby, a new Right Certificate
evidencing Rights equivalent to the Rights remaining unexercised shall be issued
by the Rights Agent to the registered holder of such Right Certificate or to his
duly authorized assigns, subject to the provisions of Section 14.
(f) Notwithstanding anything in this Agreement to the contrary, upon
the occurrence of any of the events described in Sections ll(a)(ii) and 13(a),
any Rights beneficially owned by (i) an Acquiring Person or any Affiliate or
Associate of an Acquiring Person, (ii) a transferee of an Acquiring Person or of
any Affiliate or Associate of such Acquiring Person who becomes a transferee
after the Acquiring Person becomes such (other than a transferee in a
transaction described in Section 23(b)) or (iii) a transferee who acquired such
Rights from an Acquiring Person or an Affiliate or Associate of an Acquiring
Person prior to or concurrently with the Acquiring Person becoming such in a
transaction which the Board of Directors has determined to be part of an
arrangement which has as a primary purpose or effect the avoidance of this
Section 7(f), shall become null and void, and any holder of such Rights (whether
or not such holder is an Acquiring Person or an Affiliate or Associate of an
Acquiring Person) shall thereafter have no right to exercise such Rights under
any provision of this Agreement or otherwise. Any Right Certificate issued
pursuant to Section 3 that represents Rights beneficially owned by an Acquiring
Person or any Affiliate or Associate thereof and any Right Certificate issued at
any time upon the transfer of any Rights to an Acquiring Person or any Affiliate
or Associate thereof or to any nominee of such Acquiring Person, Affiliate or
Associate, and any Right Certificate issued pursuant to Sections 6 or 11 upon
transfer, exchange, replacement or adjustment of any other Right Certificate
referred to in this sentence, shall or shall be deemed to contain the following
legend:
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The Rights represented by this Right Certificate are or were beneficially
owned by a Person who was or became an Acquiring Person or Affiliate or
Associate of an Acquiring Person (as such terms are defined in the Rights
Agreement). This Right Certificate and the Rights represented hereby may
become void in the circumstances specified in the Rights Agreement.
The Company shall use all reasonable efforts to ensure that the provisions of
this Section 7(f) are complied with, but shall have no liability to any holder
of Rights or any other Person as a result of its failure to make any
determination under this Section 7(f) with respect to an Acquiring Person or its
Affiliates, Associates or transferees.
Section 8. Cancellation and Destruction of Right Certificates. All
Right Certificates surrendered for the purpose of exercise, transfer, split up,
combination or exchange shall, if surrendered to the Company or to any of its
agents, be delivered to the Rights Agent for cancellation or in canceled form,
or, if surrendered to the Rights Agent, shall be canceled by it, and no Right
Certificates shall be issued in lieu thereof except as expressly permitted by
any of the provisions of this Agreement. The Company shall deliver to the Rights
Agent for cancellation and retirement, and the Rights Agent shall so cancel and
retire, any other Right Certificate purchased or acquired by the Company
otherwise than upon the exercise thereof. The Rights Agent shall deliver all
canceled Right Certificates to the Company, or shall, at the written request of
the Company, destroy such canceled Right Certificates, and in such case shall
deliver a certificate of destruction thereof to the Company.
Section 9. Reservation and Availability of Capital Shares.
(a) The Company covenants and agrees that it will cause to be
reserved and kept available out of its authorized and unissued Preferred Shares
(and, will use its best efforts, following the occurrence of a Section 11(a)(ii)
event, to cause to be reserved and kept available out of its authorized and
unissued Common Shares and/or other securities), the number of Preferred Shares
(and, following the occurrence of a Section 11(a)(ii) event, the number of
Common Shares and/or other securities) as will from time to time be sufficient
to permit the exercise in full of all outstanding Rights.
(b) So long as the Preferred Shares (and, following the occurrence
of a Section 11(a)(ii) event, Common Shares and/or other securities) issuable
upon the exercise of Rights may be listed on any national securities exchange,
the Company shall use its best efforts to cause, from and after such time as the
Rights become exercisable, all shares issued or reserved for such
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issuance to be listed on such exchange upon official notice of issuance upon
such exercise.
(c) If necessary to permit the issuance of shares and/or other
securities pursuant to the Rights, the Company will use its best efforts from
and after the time the Rights become exercisable to register such shares and/or
other securities under the Securities Act of 1933, as amended, and any
applicable securities laws and to keep such registration effective until the
Final Expiration Date.
(d) The Company covenants and agrees that it will take all such
action as may be necessary to ensure that all Preferred Shares (and, following
the occurrence of a Section 11(a)(ii) event, Common Shares and/or other
securities) delivered upon exercise of Rights shall, at the time of delivery of
the certificates for such shares or other securities (subject to payment of the
Purchase Price), be duly and validly authorized and issued and fully paid and
nonassessable.
(e) The Company further covenants and agrees that it will pay when
due and payable any and all federal and state transfer taxes and charges which
may be payable in respect of the issuance or delivery of the Right Certificates
or of any Preferred Shares (or Common Shares and/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 Right Certificates to a Person other than, or the issuance or
delivery of certificates for the Preferred Shares (or Common Shares and/or other
securities, as the case may be) in a name other than that of, the registered
holder of the Right Certificate evidencing Rights surrendered for exercise or to
issue or deliver any certificates for Preferred Shares (or Common Shares and/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
Right Certificate at the time of surrender) or until it has been established to
the Company's satisfaction that no such tax is due.
Section 10. Preferred Shares Record Date. Each Person in whose name
any certificate for Preferred Shares (or Common Shares and/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 the Preferred Shares (or Common
Shares and/or other securities, as the case may be) represented thereby on, and
such certificate shall be dated, the date upon which the Right Certificate
evidencing such Rights was duly surrendered and payment of the Purchase Price
(and any applicable transfer taxes) was made; provided, however, that if the
date of such surrender and payment is a date upon which the transfer books for
the Preferred Shares (or Common Shares and/or other securities, as the case may
be) are closed, such Person
- 16 -
shall be deemed to have become the record holder of such shares on, and such
certificate shall be dated, the next succeeding Business Day on which such
transfer books are open.
Section 11. Adjustment of Purchase Price, Number of Shares or Number
of Rights. The Purchase Price, the number and kind of shares which may be
purchased upon exercise of a 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 and prior to the Close of Business on the Final Expiration
Date (A) declare or pay any dividend on the Preferred Shares payable in
Preferred Shares, (B) subdivide the outstanding Preferred Shares, (C)
combine the outstanding Preferred Shares into a smaller number of
Preferred Shares or (D) issue any shares of its capital stock in a
reclassification of the Preferred Shares (including any such
reclassification in connection with a consolidation or merger in which the
Company is the continuing or surviving corporation), then and in each such
event, 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 Preferred Shares 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 Preferred Shares
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 Right was
exercisable and the transfer books of the Company were open, he 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 this Section 11(a)(i) and
Section 11(a)(ii), 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) Subject to Section 24, in the event that any Person
(other than the Company, any wholly owned Subsidiary of the Company, any
Plan of the Company or of a Subsidiary of the Company, any Person holding
Common Shares for or pursuant to the terms of any such Plan, or any Person
who is a party to the Shareholder Stand-Together Agreement but only while
such Person remains a party thereto), alone or together with its
Affiliates and Associates, shall become an Acquiring Person (except in a
transaction to which the provisions of Section 13(a) hereof apply), then,
upon the occurrence of such event (a "Section 11(a)(ii) event"), proper
provision shall be made so that each holder of a
- 17 -
Right, except as provided in Section 7(f) hereof, shall thereafter have a
right to receive for each Right, upon exercise thereof in accordance with
the terms of this Agreement and payment of the then-current Purchase
Price, in lieu of one one-hundredth of a Preferred Share, such number of
Common Shares of the Company as shall equal the result obtained by
multiplying the then-current Purchase Price by the then number of one
one-hundredths of a Preferred Share for which a Right was exercisable
immediately prior to the first occurrence of a Section 11(a)(ii) event,
and dividing that product by 50 percent of the current per share market
price (determined pursuant to Section 11(d)) for Common Shares on the date
of such first occurrence (such number of shares being hereinafter referred
to as the "Adjustment Shares"), provided that such provision shall not be
effective until such time as the Rights are no longer subject to
redemption pursuant to Section 23(a).
(iii) In lieu of issuing Common Shares in accordance with
Section 11(a)(ii), the Company may, if the Board of Directors determines
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 Common
Shares 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 is not sufficient to permit the exercise in full of
the Rights in accordance with Section 11(a)(ii), the Company shall, with
respect to each Right, make adequate provision to substitute for all or a
portion of the Adjustment Shares upon payment of the applicable Purchase
Price (A) cash, (B) other equity securities of the Company (including,
without limitation, shares of preferred stock or units of preferred stock
having the same value as Common Shares (such shares or units of preferred
stock, "common stock equivalents")), (C) debt securities of the Company,
(D) other assets or (E) any combination of the foregoing, having an
aggregate value equal to the Adjustment Shares for which substitution is
made. To the extent that the Company determines that some action is to be
taken pursuant to this Section 11(a)(iii), the Company shall provide,
subject to Section 7(f) hereof, that such action shall apply uniformly to
all outstanding Rights.
(b) In the event that the Company shall at any time after the Close
of Business on the Record Date and prior to the Close of Business on the earlier
of the Redemption Date or the Final Expiration Date fix a record date prior to
the Redemption Date or Final Expiration Date for the issuance of rights, options
or warrants to all holders of Preferred Shares entitling them (for a period
expiring within 45 calendar days after such record date) to subscribe for or
purchase Preferred Shares (or shares having the same rights, privileges and
preferences as the
- 18 -
Preferred Shares ("equivalent preferred shares")) or securities convertible into
Preferred Shares or equivalent preferred shares, at a price per Preferred Share
or per share of equivalent preferred share (or having an effective price per
share on a converted basis in the case of a security convertible into Preferred
Shares or equivalent preferred shares) less than the current per share market
price of the Preferred Shares (as determined in accordance with Section 11(d))
on such record date, then the Purchase Price to be in effect after such record
date shall be determined by multiplying the Purchase Price in effect immediately
prior to such record date by a fraction, the numerator of which shall be the
number of Preferred Shares outstanding on such record date plus the number of
Preferred Shares which the aggregate offering price of the total number of
Preferred Shares and/or equivalent preferred shares so to be offered (and/or the
aggregate price of the convertible securities so to be offered) would purchase
at such current market price, and the denominator of which shall be the number
of Preferred Shares outstanding on such record date plus the number of
additional Preferred Shares and/or equivalent preferred shares to be offered for
subscription or purchase (or into which the convertible securities so to be
offered are initially convertible). In case such subscription price may be paid
by delivery of consideration part or all of which may be in a form other than
cash, the value of such consideration shall be as determined in good faith by
the Board of Directors, whose determination shall be set forth in a statement
filed with the Rights Agent and shall be binding on the Rights Agent and the
holders of the Rights. Preferred Shares owned by or held for the account of the
Company shall not be deemed outstanding for the purpose of any such computation.
Such adjustment shall be made successively whenever such a record date is fixed;
and in the event that such rights, options 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 that the Company shall at any time after the Close
of Business on the Record Date and prior to the Close of Business on the earlier
of the Redemption Date or the Final Expiration Date fix a record date for the
making of a distribution to all holders of the Preferred Shares (including any
such distribution made in connection with a consolidation or merger in which the
Company is the continuing corporation) of evidences of indebtedness or assets
(other than a regular quarterly cash dividend or a dividend payable in Preferred
Shares) or subscription rights or warrants (excluding those referred to in
Section 11(b)), 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 per one Preferred Share (as determined in accordance with
Section 11(d)) on such record date, less the fair market
- 19 -
value of the portion of the assets or evidences of indebtedness so to be
distributed or of such subscription rights or warrants applicable to one
Preferred Share, and the denominator of which shall be such current per share
market price per one Preferred Share. Such adjustments shall be made
successively whenever such a record date is fixed; and in the event that such
distribution is not so made, the Purchase Price shall again be adjusted to be
the Purchase Price which would then be in effect if such record date had not
been fixed.
(d) (i) For the purpose of any computation hereunder, other than
computations made pursuant to Section 11(a)(iii) hereof, the "current per
share market price" of the Common Shares on any date shall be deemed to be
the average of the daily closing prices per Common Share on each of the 20
consecutive Trading Days (as such term is hereinafter defined) through and
including the Trading Day immediately preceding such date; provided,
however, that in the event the current per share market price of the
Common Shares is determined during a period following the announcement by
the issuer of such Common Shares of (A) a dividend or distribution on such
Common Shares payable in such Common Shares or securities convertible into
such Common Shares or (B) any subdivision, combination or reclassification
of such Common Shares, and prior to the expiration of 20 Trading Days
after the ex-dividend date for such dividend, distribution, subdivision,
combination or reclassification, then, and in each such case, the current
market price shall be appropriately adjusted to take into account such
event. The closing price for each day shall be the last sale price,
regular way, or, in case no such sale takes place on such day, the average
of the closing bid and asked prices, regular way, in either case as
reported in the principal consolidated transaction reporting system with
respect to securities listed or admitted to trading on the New York Stock
Exchange, Inc., or, if the Common Shares are not listed or admitted to
trading on the New York Stock Exchange, Inc., as reported in the principal
consolidated transaction reporting system with respect to securities
listed on the principal national securities exchange on which the Common
Shares are listed or admitted to trading or, if the Common Shares are not
listed or admitted to trading on any national securities exchange, the
last sale price reported by the National Market System of the National
Association of Securities Dealers, Inc. Automated Quotations ("NASDAQ")
System or such other system then in use, or, if no last sale price is
reported by any such system, the average of the representative closing bid
and asked prices as quoted on the NASDAQ System or such other system then
in use, or, if on any such date the Common Shares 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
- 20 -
Shares selected by the Board of Directors. The term "Trading Day" shall
mean a day on which the principal national securities exchange on which
the Common Shares are listed or admitted to trading is open for the
transaction of business or, if the Common Shares are not listed or
admitted to trading on any national securities exchange, a day on which
the NASDAQ System or such other system is open.
(ii) For the purpose of any computation hereunder, the
"current per share market price" of the Preferred Shares shall be
determined in the same manner as set forth above for Common Shares in
clause (i) of this Section 11(d). If the current per share market price of
the Preferred Shares cannot be determined in the manner provided above,
the "current per share market price" of the Preferred Shares shall be
conclusively deemed to be the current per share market price of the Common
Shares (appropriately adjusted to reflect any stock split, stock dividend,
subdivision, combination, reclassification or similar transaction
occurring after the date hereof) multiplied by one hundred.
If neither the Common Shares nor the Preferred Shares are publicly
held or so listed or traded, "current per share market price" shall mean the
fair value per share as determined in good faith by the Board of Directors based
upon such appraisals or valuation reports of such independent experts as the
Board of Directors shall in good faith determine appropriate. Any such
determination of "current per share market price" shall be described in a
statement filed with the Rights Agent.
(e) No adjustment in the Purchase Price shall be required unless
such adjustment would require an increase or decrease of at least 1 percent in
the 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 Common Share or other share or one-millionth of a Preferred Share as the case
may be.
(f) If, as a result of an adjustment made pursuant to Section 11(a)
or Section 13(a), the holder of any Right thereafter exercised shall become
entitled to receive any shares of capital stock other than Preferred Shares, the
number of such other shares so receivable upon exercise of any Right shall be
subject to adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to the Preferred Shares
contained in this Section 11 and the provisions of Sections 7, 9, 10, 13 and 14
with respect to the Preferred Shares shall apply on like terms to any such other
shares.
- 21 -
(g) All Rights originally issued by the Company subsequent to any
adjustment made to the Purchase Price hereunder shall evidence the right to
purchase, at the adjusted Purchase Price, the number of one one-hundredths of a
Preferred Share purchasable from time to time hereunder upon exercise of the
Rights, all subject to further adjustment as provided herein.
(h) Unless the Company shall have exercised its election as provided
in Section 11(i) below, upon each adjustment of the Purchase Price as a result
of the calculations made in Sections ll(b) and (c), each Right outstanding
immediately prior to the making of such adjustment shall thereafter evidence the
right to purchase, at the adjusted Purchase Price, that number of one
one-hundredths of a Preferred Share (calculated to the nearest one one-millionth
of a Preferred Shared obtained by (i) multiplying (x) the number of one
one-hundredths of a Preferred Share covered by a Right immediately prior to such
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 instead of making any
adjustment in the number of Preferred Shares 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 Preferred
Share for which a Right was exercisable immediately prior to such adjustment.
Each Right held of record prior to such adjustment of the number of Rights shall
become that number of Rights (calculated to the nearest one ten-thousandth)
obtained by dividing the Purchase Price in effect immediately prior to such
adjustment of the Purchase Price by the Purchase Price in effect immediately
after such adjustment of the Purchase Price. The Company shall make a public
announcement of its election to adjust the number of Rights, indicating the
record date for the adjustment, and, if known at the time, the amount of the
adjustment to be made. This record date may be the date on which the Purchase
Price is adjusted or any day thereafter, but, if the Right Certificates have
been issued, shall be at least ten days after the date of the public
announcement. If Right Certificates have been issued, upon each adjustment of
the number of Rights pursuant to this Section 11(i), the Company shall, as
promptly as practicable, cause to be distributed to holders of record of Right
Certificates on such record date Right Certificates evidencing, subject to
Section 14 hereof, the additional Rights to which such holders shall be entitled
as a result of such adjustment, or, at the option of the Company, shall cause to
be distributed to such holders of record in substitution and replacement for the
Right Certificates held by such holders prior to the date of adjustment, and
upon surrender thereof, if required by the Company, new Right Certificates
evidencing all
- 22 -
the Rights to which such holders shall be entitled after such adjustment. Right
Certificates so to be distributed shall be issued, executed and countersigned in
the manner provided for herein (and may bear, at the option of the Company, the
adjusted Purchase Price) and shall be registered in the names of the holders of
record of Right Certificates on the record date specified in the public
announcement.
(j) Irrespective of any adjustment or change in the Purchase Price
or the number of one one-hundredths of a Preferred Share issuable upon the
exercise of the Rights, as applicable, the Right Certificates theretofore and
thereafter issued may continue to express the Purchase Price per one
one-hundredth of a Preferred Share and the number of shares which were expressed
in the initial Right Certificates issued hereunder.
(k) Before taking any action that would cause an adjustment reducing
the Purchase Price below one one-hundredth of the then par value, if any, of the
Preferred Shares issuable upon exercise of the Rights, the Company shall take
any corporate action which may, in the advice or opinion of its counsel, be
necessary in order that the Company may validly and legally issue fully paid and
nonassessable one one-hundredths of a Preferred Share 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 issuance to the holder of any Right exercised after such record date
the number of one one-hundredths of a Preferred Share 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 Preferred Share and other capital stock or
securities of the Company, if any, issuable upon such exercise on the basis of
the Purchase Price in effect prior to such adjustment; provided, however, that
the Company shall deliver to such holder a due ▇▇▇▇ or other appropriate
instrument evidencing such holder's right to receive such additional shares upon
the occurrence of the event requiring such adjustment.
(m) Anything in this Section 11 to the contrary notwithstanding, the
Company shall be entitled to make such further adjustments in the number of one
one-hundredths of a Preferred Share which may be acquired upon exercise of the
Rights, and such adjustments in the Purchase Price, in addition to those
adjustments expressly required by this Section 11, as and to the extent that the
Board of Directors in good faith shall determine to be advisable in order that
any (i) consolidation or subdivision of the Preferred Shares, (ii) issuance
wholly for cash of any Preferred Shares at less than the current market price,
(iii) issuance wholly for cash of Preferred Shares or securities which by their
terms are convertible into or
- 23 -
exchangeable for Preferred Shares, (iv) dividends on Preferred Shares payable in
Preferred Shares or (v) issuance of rights, options or warrants referred to in
Section 11(b), hereafter made by the Company to holders of its Preferred Shares
shall not be taxable to such holders or shall reduce the taxes payable by such
holders.
(n) The Company shall not, at any time after the Distribution Date
(i) consolidate with, or merge with or into, any other Person (other than a
Subsidiary of the Company in a transaction which complies with Section 11(o),
(ii) consummate a statutory plan of exchange with any other Person (other than a
Subsidiary of the Company in a transaction which complies with Section 11(o), or
(iii) sell or transfer (or permit any Subsidiary to sell or transfer), in one
transaction, or a series of transactions, assets or earning power aggregating
more than 50 percent of the assets or earning power of the Company and its
Subsidiaries (taken as a whole) to any other Person or Persons (other than the
Company and/or any of its Subsidiaries in one or more transactions each of which
complies with Section 11(o)), if at the time of or immediately after such
consolidation, merger, consummation of a statutory plan of exchange or sale
there are any rights, warrants or other instruments or securities outstanding or
agreements in effect which would substantially diminish or otherwise eliminate
the benefits intended to be afforded by the Rights; provided, however, this
Section 11(n) shall not affect the ability of any Subsidiary of the Company to
consolidate with, merge with or into, consummate a statutory plan of exchange
with, or sell or transfer assets or earning power to, any other Subsidiary of
the Company.
(o) After the Distribution Date, the Company shall not, except as
permitted by Sections 23, 24 and 27, take (or permit any Subsidiary to take) any
action if at the time such action is taken it is reasonably foreseeable that
such action will diminish substantially or otherwise eliminate the benefits
intended to be afforded by the Rights, including, without limiting the
generality of the foregoing, any merger, consolidation, statutory exchange or
sale or transfer of assets or earning power.
(p) Anything in this Agreement to the contrary notwithstanding, in
the event that the Company shall at any time after the date of this Agreement
and prior to the Distribution Date (i) declare or pay a dividend on the
outstanding Common Shares payable in Common Shares, (ii) subdivide the
outstanding Common Shares, (iii) combine the outstanding Common Shares into a
smaller number of shares, or (iv) issue any shares of its capital stock in a
reclassification of the outstanding Common Shares, the number of Rights
associated with each Common Share then outstanding, or issued or delivered
thereafter but prior to the Distribution Date, shall be proportionately adjusted
so that the number of Rights thereafter associated with each Common Share
- 24 -
following any such event (including other Common Shares issued after the date of
such event, but prior to the Distribution Date) shall equal the result obtained
by multiplying the number of Rights associated with each Common Share
immediately prior to such event by a fraction the numerator of which shall be
the total number of Common Shares outstanding immediately prior to the
occurrence of the event and the denominator of which shall be the total number
of Common Shares outstanding immediately following the occurrence of such event.
Section 12. Certificate of Adjusted Purchase Price or Number of
Shares. Whenever an adjustment is made as provided in Sections 11 and 13, the
Company shall (a) promptly prepare a certificate setting forth such adjustment,
and a brief statement of the facts giving rise to such adjustment, (b) promptly
file with the Rights Agent and with each transfer agent for the Preferred Shares
and the Common Shares a copy of such certificate and (c) mail a brief summary
thereof to each holder of a Right Certificate (or, if prior to the Distribution
Date, to each holder of a certificate representing Common Shares, provided that
no such summary need be mailed to such holders with respect to adjustments made
pursuant to Section 11(p) prior to the Distribution Date) in accordance with
Section 25 hereof. Notwithstanding the foregoing sentence, the failure of the
Company to make such certification or give such notice shall not affect the
validity of or the force or effect of the requirement for such adjustment. Any
adjustment to be made pursuant to Sections 11 and 13 shall be effective as of
the date of the event giving rise to such adjustment. The Rights Agent shall be
fully protected in relying on any such certificate and on any adjustment therein
contained.
Section 13. Consolidation, Merger, Statutory Plan of Exchange or
Sale or Transfer of Assets or Earning Power.
(a) in the event that, directly or indirectly, after there is an
Acquiring Person, (i) the Company shall consolidate with, or merge with and
into, any other Person (other than a Subsidiary of the Company in a transaction
that complies with Section 11(o)), and the Company shall not be the continuing
or surviving corporation of such consolidation or merger, (ii) any Person (other
than a Subsidiary of the Company in a transaction which complies with Section
11(o)) shall consolidate with the Company, or merge with and into the Company
and the Company shall be the continuing or surviving corporation of such merger
and, in connection with such consolidation or merger, all or part of the Common
Shares shall be changed into or exchanged for stock or other securities of any
other Person or cash or any other property, or (iii) any Person (other than a
Subsidiary of the Company in a transaction which complies with Section 11(o))
shall acquire all or a majority of the Common Shares of the Company pursuant to
a statutory plan of exchange, or (iv) the Company shall sell or otherwise
transfer (or one or more of its
- 25 -
Subsidiaries shall sell or otherwise transfer), in one or more transactions,
assets or earning power aggregating more than 50 percent of the assets or
earning power of the Company and its Subsidiaries (taken as a whole) to any
other Person or Persons (other than the Company or one or more of its wholly
owned Subsidiaries) (any event described in clauses (i), (ii), (iii) or (iv) of
this Section 13(a) being a "Section 13 event"), then, and in each such case,
proper provision shall be made so that (A) each holder of a Right, except as
provided in Section 7(f) 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 and nonassessable Common Shares of the Principal Party (as hereinafter
defined) which Common Shares shall not be subject to any Liens, encumbrances,
rights of first refusal, transfer restrictions 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 Preferred Share for which a Right
was exercisable immediately prior to the first occurrence of a Section 13 event
(or, if a Section 11(a)(ii) event has occurred prior to the Section 13 event,
multiplying the number of such one one-hundredths of a share for which a Right
was exercisable immediately prior to the first occurrence of such Section
11(a)(ii) event by the Purchase Price in effect immediately prior to such first
occurrence), and dividing that product by (2) 50 percent of the current per
share market price (determined in accordance with Section 11(d)(i) hereof) of
the Common Shares of such Principal Party on the date of consummation of such
Section 13 event; (B) such Principal Party shall thereafter be liable for, and
shall assume, by virtue of such consolidation, merger, statutory plan of
exchange, sale or transfer, all the obligations and duties of the Company
pursuant to this Agreement; (C) 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 after
the first occurrence of a Section 13 event; (D) such Principal Party shall take
such steps (including, but not limited to, the reservation of a sufficient
number of shares of its Common Shares in accordance with Section 9 hereof
applicable to the reservation of capital shares) in connection with such
consummation as may be necessary to assure that the provisions hereof shall
thereafter be applicable, as nearly as reasonably may be, in relation to its
Common Shares thereafter deliverable upon the exercise of the Rights; and (E)
the provisions of Section 11(a)(ii) shall be of no further 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 (i),
(ii) or (iii) of Section 13(a), (A) the Person that is the issuer of any
securities into which Common
- 26 -
Shares of the Company are converted in such merger, consolidation or for
which they are exchanged in such statutory plan of exchange, or, if there
is more than one such issuer, the issuer of Common Shares that has the
highest aggregate current market price (determined in accordance with
Section 11(d)) and (B) if no securities are so issued, the Person that is
the other party to such merger, consolidation or statutory plan of
exchange, or, if there is more than one such Person, the Person the Common
Shares of which has the highest aggregate current market price (determined
in accordance with Section 11(d)); and
(ii) in the case of any transaction described in clause (iv)
of Section 13(a), the Person that is the party receiving the largest
portion of the assets or earning power transferred pursuant to such
transaction or transactions, or, if each Person that is a party to such
transaction or transactions receives the same portion of the assets or
earning power transferred pursuant to such transaction or transactions or
if the Person receiving the largest portion of the assets or earning power
cannot be determined, whichever Person the Common Shares of which has the
highest aggregate current market price (determined in accordance with
Section 11(d));
provided, however, that in any such case, (A) if the Common Shares of such
Person are not at such time and have not been continuously over the preceding
twelve-month period registered under Section 12 of the Exchange Act ("Registered
Common Shares"), or such Person is not a corporation, and such Person is a
direct or indirect Subsidiary of another Person that has registered Common
Shares outstanding, "Principal Party" shall refer to such other Person; (B) if
the Common Shares of such Person are not Registered Common Shares or such Person
is not a corporation, and such Person is a direct or indirect Subsidiary of
another Person but is not a direct or indirect Subsidiary of another Person
which has Registered Common Shares outstanding, "Principal Party" shall refer to
the ultimate parent entity of such first-mentioned Person; (C) if the Common
Shares of such Person are not Registered Common Shares or such Person is not a
corporation, and such Person is directly or indirectly controlled by more than
one Person, and one or more of such other Persons has Registered Common Shares
outstanding, "Principal Party" shall refer to whichever of such other Persons is
the issuer of the Registered Common Shares having the highest aggregate current
market price (determined in accordance with Section 11(d)); and (D) if the
Common Shares of such Person are not Registered Common Shares or such Person is
not a corporation, and such Person is directly or indirectly controlled by more
than one Person, and none of such other Persons have Registered Common Shares
outstanding, "Principal Party" shall refer to whichever ultimate parent entity
is the corporation having the greatest shareholders' equity or, if no such
ultimate parent entity is a
- 27 -
corporation, shall refer to whichever ultimate parent entity is the entity
having the greatest net assets.
(c) The Company shall not consummate any such consolidation, merger,
statutory plan of exchange, sale or transfer unless prior thereto the Company
and Principal Party shall have executed and delivered to the Rights Agent a
supplemental agreement confirming that (i) such Principal Party shall, upon
consummation of such consolidation, merger, statutory plan of exchange or sale
or transfer of assets or earning power, assume this Agreement in accordance with
Sections 13(a) and (b), (ii) all rights of first refusal or preemptive rights in
respect of the issuance of Common Shares of such Principal Party upon exercise
of outstanding Rights have been waived, (iii) any provision of the authorized
securities of such Principal Party or of its charter, bylaws or other
instruments governing its corporate affairs which would obligate such Principal
Party to issue in connection with, or as a consequence of, the consummation of a
transaction referred to in Section 13(a), Common Shares of such Principal Party
at less than the then-current per share market price (determined in accordance
with Section 11(d)(i)) or securities exercisable for, or convertible into, such
Common Shares at less than such then-current per share market price (other than
to the holders of Rights pursuant to this Section 13) have been waived or
canceled, and (iv) such transaction shall not result in a default by such
Principal Party under this Agreement and further providing that, as soon as
practicable after the date of any consolidation, merger, statutory plan of
exchange or sale or transfer of assets or earning power referred to in Section
13(a), such Principal Party will:
(A) prepare and file a registration statement under the
Securities Act of 1933, as amended, with respect to the Rights and the
securities purchasable upon exercise of the Rights on an appropriate form,
use its best efforts to cause such registration statement to become
effective as soon as practicable after such filing and use its best
efforts to cause such registration statement to remain effective (with a
prospectus at all times meeting the requirements of the Securities Act of
1933, as amended) until the Final Expiration Date of the Rights, and
similarly comply with applicable state securities laws;
(B) use its best efforts to list (or continue the listing of)
the Rights and the securities purchasable upon exercise of the Rights or
to meet the eligibility requirements for quotation of the Rights and such
securities on NASDAQ or other system then in use; and
(C) deliver to holders of the Rights historical financial
statements for such Principal Party which comply
- 28 -
in all respects with the requirements for registration on Form 10 (or any
successor form) under the Exchange Act.
In the event that at any time after the occurrence of a Section
11(a)(ii) event hereof some or all of the Rights shall not have been exercised
at the time of a Section 13 event, the Rights which have not theretofore been
exercised shal1 thereafter be exercisable in the manner described in Section
13(a) (without taking into account any prior adjustment required by Section
1l(a)(ii)).
(d) The provisions of this Section 13 shall similarly apply to
successive mergers or consolidations or sales or other transfers.
(e) Notwithstanding anything in this Agreement to the contrary,
Section 13 shall not be applicable to a transaction described in Section
13(a)(i), (ii) or (iii) if: (i) such transaction is consummated with a Person or
Persons who acquired shares of Common Stock pursuant to a Sanctioned Tender
Offer (or with a wholly owned Subsidiary of any such Person or Persons), (ii)
the price per Common Share offered in such transaction is not less than the
price per Common Share paid to all holders of Common Shares whose shares were
purchased pursuant to such tender or exchange offer, and (iii) the form of
consideration being offered to the remaining holders of Common Shares pursuant
to such transaction is the same as the form of consideration paid pursuant to
such Sanctioned Tender Offer. Upon consummation of any such transaction
contemplated by this Section 13(e), all Rights shall expire.
Section 14. Fractional Rights and Fractional Shares.
(a) The Company shall not be required to issue fractions of Rights
or to distribute Right Certificates which evidence fractional Rights (i. e. ,
Rights to acquire less than one one-hundredth of a Preferred Share). If the
Company shall determine not to issue such fractional Rights, there shall be paid
to the registered holders of the Right Certificates with regard to which such
fractional Rights would otherwise be issuable, an amount in cash equal to the
same fraction of the current market value of a whole Right. For the purposes of
this Section 14(a), the current market value of a whole Right shall be the
closing price of the Rights for the Trading Day immediately prior to the date on
which such fractional Rights would have been otherwise issuable. The closing
price for any day shall be determined in the same manner as set forth in Section
11(d)(i) with respect to the closing price for Common Shares.
(b) The Company shall not be required to issue fractions of
Preferred Shares (other than fractions which are integral multiples of one
one-hundredth of a Preferred Share) upon exercise of the Rights, or to
distribute certificates which
- 29 -
evidence fractional Preferred Shares (other than fractions which are integral
multiples of one one-hundredth of a Preferred Share). Fractions of Preferred
Shares in integral multiples of one one-hundredth of a Preferred Share may, at
the election of the Company, be evidenced by depositary receipts, pursuant to an
appropriate agreement between the Company and a depositary selected by it,
provided that such agreement shall provide that the holders of such depositary
receipts shall have all the rights, privileges and preferences to which they are
entitled as beneficial owners of the Preferred Shares. With respect to
fractional Preferred Shares that are not integral multiples of one one-hundredth
of a Preferred Share, if the Company does not issue fractional shares or
depositary receipts in lieu thereof, the Company shall pay to the registered
holders of Right Certificates at the time such Rights are exercised as herein
provided an amount in cash equal to the same fraction of the current market
value of one one-hundredth of a Preferred Share. For purposes of this Section
14(b), the current market value of one one-hundredth of a Preferred Share shall
be one one-hundredth of the closing price of a Preferred Share (as determined in
accordance with Section 11(d)(ii)) for the Trading Day immediately prior to the
date of such exercise.
(c) Following the occurrence of a Section 11(a)(ii) event or a
Section 13 event, the Company shall not be required to issue fractions of
Common-Shares upon exercise of the Rights or to distribute certificates which
evidence fractional Common Shares. In lieu of fractional Common Shares, the
Company may pay to the registered holders of Right Certificates at the time such
Rights are exercised as herein provided an amount in cash equal to the same
fraction of the current market value of one Common Share. For purposes of this
Section 14(c), the current market value of one Common Share shall be the closing
price of one Common Share (as determined pursuant to Section 11(d)(i)) for the
Trading Day immediately prior to the date of such exercise.
(d) The holder of a Right, by the acceptance of the Rights,
expressly waives his right to receive any fractional Rights or any fractional
shares upon exercise of a Right except as permitted by this Section l4.
Section 15. Rights of Action. All rights of action in respect of
this Agreement, excepting the rights of action given to the Rights Agent under
Section 18 hereof, are vested in the respective registered holders of the Right
Certificates (and, prior to the Distribution Date, the registered holders of the
Common Shares); and any registered holder of any Right Certificate (or, prior to
the Distribution Date, of the Common Shares), without the consent of the Rights
Agent or of the holder of any other Right Certificate (or, prior to the
Distribution Date, of the Common Shares), may in his own behalf and for his own
benefit, enforce, and may institute and maintain any suit, action or proceeding
against the Company to enforce, or otherwise
- 30 -
act in respect of, his right to exercise the Rights evidenced by such Right
Certificate in the manner provided in such Right Certificate and in this
Agreement. Without limiting the foregoing or any remedies available to the
holders of Rights, it is specifically acknowledged that the holders of Rights
would not have an adequate remedy at law for any breach of this Agreement and
will be entitled to specific performance of the obligations under, and
injunctive relief against actual or threatened violations of, the obligations of
any Person subject to this Agreement.
Section 16. Agreement of Right Holders. Every holder of a Right, by
accepting the same, consents and agrees with the Company and the Rights Agent
and with every other holder of a Right that:
(a) prior to the Distribution Date, the Rights shall be evidenced by
the certificates for Common Shares registered in the name of the holders of the
Common Shares (which certificates for Common Shares shall also constitute
certificates for Rights) and each Right will be transferable only in connection
with the transfer of the Common Shares;
(b) after the Distribution Date, the Right 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 accompanied by a
proper instrument of transfer and with the appropriate forms and certificates
duly executed; and
(c) subject to Sections 6(a) and 7(f), the Company and the Rights
Agent may deem and treat the person in whose name the Right Certificate (or,
prior to the Distribution Date, the associated Common Shares certificate) is
registered as the absolute owner thereof and of the Rights evidenced thereby
(notwithstanding any notations of ownership or writing on the Right Certificates
or the associated Common Shares certificate made by anyone other than the
Company or the Rights Agent) for all purposes whatsoever, and neither the
Company nor the Rights Agent shall be affected by any notice to the contrary.
(d) Notwithstanding anything in this Agreement to the contrary,
neither the Company nor the Rights Agent shall have any liability to any holder
of a Right or other Person as a result of its inability to perform any of its
obligations under this Agreement by reason of any preliminary or permanent
injunction or other order, decree or ruling issued by a court of competent
jurisdiction or by a governmental, regulatory or administrative agency or
commission, or any statute, rule, regulation or executive order promulgated or
enacted by any governmental authority, prohibiting or otherwise restraining
performance of such obligation; provided, however, the Company must use
- 31 -
reasonable efforts to have any such order, decree or ruling lifted or otherwise
overturned as soon as possible.
Section 17. Right Holders and Right Certificate Holders Not Deemed
Shareholders. No holder, as such, of any Right or Right Certificate shall be
entitled to vote, receive dividends or be deemed for any purpose the holder of
the number of one one-hundredths of a Preferred Share or any other securities of
the Company which may at any time be issuable on the exercise of the Rights
represented thereby, nor shall anything contained herein or in any Right
Certificate be construed to confer upon the holder of any Right or Right
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 25), or to receive dividends or
subscription rights, or otherwise until the Right or Rights evidenced by such
Right Certificate shall have been exercised in accordance with the provisions
hereof.
Section 18. Concerning the Rights Agent.
(a) The Company agrees to pay to the Rights Agent reasonable
compensation for all services rendered by it hereunder and, from time to time,
on demand of the Rights Agent, its reasonable expenses and counsel fees and
other disbursements incurred in the administration and execution of this
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.
(b) The Rights Agent shall be protected and shall incur no liability
for or in respect of any action taken, suffered or omitted by it in connection
with its administration of this Agreement in reliance upon any Right Certificate
or certificate for the Preferred Shares or Common Shares 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.
- 32 -
(a) Any corporation (which term shall for the purposes of this
Agreement include a national banking association) into which the Rights Agent or
any successor Rights Agent may be merged or with which it may be consolidated,
or any corporation resulting from any merger or consolidation to which the
Rights Agent or any successor Rights Agent shall be a party, or any corporation
succeeding to the corporate trust 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. If, at the time such successor Rights Agent shall succeed to the
agency created by this Agreement, any of the Right Certificates shall have been
countersigned but not delivered, any such successor Rights Agent may adopt the
countersignature of the predecessor Rights Agent and deliver such Right
Certificates so countersigned; and if at that time any of the Right Certificates
shall not have been countersigned, any successor Rights Agent may countersign
such Right Certificates either in the name of the predecessor Rights Agent or in
the name of the successor Rights Agent; and in all such cases such Right
Certificates shall have the full force provided in the Right Certificates and in
this Agreement.
(b) If at any time the name of the Rights Agent shall be changed and
at such time any of the Right Certificates shall have been countersigned but not
delivered, the Rights Agent may adopt the countersignature under its prior name
and deliver Right Certificates so countersigned; and if at that time any of the
Right Certificates shall not have been countersigned, the Rights Agent may
countersign such Right Certificates either in its prior name or in its changed
name; and in all such cases such Right Certificates shall have the full force
provided in the Right Certificates and in this Agreement.
Section 20. Duties of Rights Agent. The Rights Agent undertakes the
duties and obligations imposed by this Agreement upon the following terms and
conditions, by all of which the Company and the holders of Right Certificates,
by their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel (who may be
legal counsel for the Company), and the advice or 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 advice
or opinion.
(b) Whenever in the performance of its duties under this Agreement
the Rights Agent shall deem it necessary or desirable that any fact or matter be
proved or established by the Company prior to taking or suffering any action
hereunder, such
- 33 -
fact or matter (including, without limitation, the identity of any Acquiring
Person and the determination of "current per share market price") may be deemed
to be conclusively proved and established by a certificate signed by any one of
the Chairman of the Board, the President, any Vice President, the Treasurer, the
Secretary or any Assistant Secretary of the Company and delivered to the Rights
Agent; and such certificate shall be full authorization to the Rights Agent for
any action taken or suffered in good faith by it under the provisions of this
Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and
any other Person 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 Right
Certificates (except its countersignature thereof) or be required to verify the
same, but all such statements and recitals are and shall be deemed to have been
made by the Company only.
(e) The Rights Agent shall not be under any responsibility in
respect of the validity of this Agreement or the execution and delivery hereof
(except the due authorization, execution and delivery hereof by the Rights
Agent) or in respect of the validity or execution of any Right Certificate
(except its countersignature thereof); nor shall it be responsible for any
breach by the Company of any covenant or condition contained in this Agreement
or in any Right Certificate; nor shall it be responsible for any change in the
exercisability of the Rights (including the Rights becoming null and void
pursuant to Section 7(f)) or any adjustment required under the provisions of
Sections 11 or 13 (including the manner, method or amount thereof) or the
ascertaining of the existence of facts that would require any such change or
adjustment (except with respect to the exercise of Rights evidenced by Right
Certificates after receipt by the Rights Agent of the certificate describing any
such adjustment as contemplated by Section 12); nor shall it by any act
hereunder be deemed to make any representation or warranty as to the
authorization or reservation of any Preferred Shares to be issued pursuant to
this Agreement or any Right Certificate or as to whether any Preferred Shares
will, when issued, be validly authorized and issued, fully paid and
nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge
and deliver or cause to be performed, executed, acknowledged and delivered all
such further and other acts, instruments and assurances as may reasonably be
required by the Rights Agent for the carrying out or performing by the Rights
Agent of the provisions of this Agreement.
- 34 -
(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, any Vice President, the
Secretary, any Assistant Secretary or the Treasurer of the Company, and to apply
to such officers for advice or instructions in connection with its duties, and
it shall not be liable for any action taken or suffered to be taken by it in
good faith in accordance with instructions of any such officer.
(h) The Rights Agent and any 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 the 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.
(i) The Rights Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either itself or by or
through its attorneys or agents, and the Rights Agent shall not be answerable or
accountable for any act, default, neglect or misconduct of any such attorneys or
agents or for any loss to the Company resulting from any such act, default,
neglect or misconduct, provided that reasonable care was exercised in the
selection and continued employment thereof.
(j) No provision of this Agreement shall require the Rights Agent to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties or in the exercise of its rights hereunder if
the Rights Agent shall have reasonable grounds for believing that repayment of
such funds or adequate indemnification against such risk or liability is not
reasonably assured to it.
(k) If, with respect to any Right Certificate surrendered to the
Rights Agent for exercise or transfer, the certificate included with the form of
assignment or form of election to purchase, as the case may be, has either not
been completed, not signed 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 with
the Company. If such certificate has been completed and signed, the Rights Agent
may assume without further inquiry that the Right Certificate is not owned by a
person described in Section 7(f) and shall not be charged with any knowledge to
the contrary.
Section 21. Change of Rights Agent. The Rights Agent or any
successor Rights Agent may resign and be discharged from
- 35 -
its duties under this Agreement upon 30 days notice in writing mailed to the
Company and to each transfer agent of the Common Shares and Preferred Shares by
registered or certified mail, and to the holders of the Right Certificates by
first-class mail. The Company may remove the Rights Agent or any successor
Rights Agent upon 30 days notice in writing, mailed to the Rights Agent or
successor Rights Agent, as the case may be, and to each transfer agent of the
Common Shares and Preferred Shares by registered or certified mail, and to the
holders of the Right Certificates by first-class mail. If the Rights Agent shall
resign or be removed or shall otherwise become incapable of acting, the Company
shall appoint a successor to the Rights Agent. If the Company shall fail to make
such appointment within a period of 30 days after giving notice of such removal
or after it has been notified in writing of such resignation or incapacity by
the resigning or incapacitated Rights Agent or by the holder of a Right
Certificate (who shall, with such notice, submit his Right Certificate for
inspection by the Company), then the Company shall become the Rights Agent and
the registered holder of any Right Certificate may apply to any court of
competent jurisdiction for the appointment of a new Rights Agent. Any successor
Rights Agent, whether appointed by the Company or by such a court, shall be a
corporation organized and doing business under the laws of the United States or
of the state of Oregon (or of any other state of the United States so long as
such corporation is authorized to do business as a banking institution in the
state of Oregon), in good standing, having a principal office in the state of
Oregon, 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 hereunder, and
execute and deliver any further assurance, conveyance, act or deed necessary for
the purpose. Not later than the effective date of any such appointment, the
Company shall file notice thereof in writing with the predecessor Rights Agent
and each transfer agent of the Common Shares and Preferred Shares, and mail a
notice thereof in writing to the registered holders of the Right Certificates.
Failure to give any notice provided for in this Section 21, however, or any
defect therein, shall not affect the legality or validity of the resignation or
removal of the Rights Agent or the appointment of the successor Rights Agent, as
the case may be.
Section 22. Issuance of New Right Certificates. Notwithstanding any
of the provisions of this Agreement or of the Rights to the contrary, the
Company may, at its option, issue new Right Certificates evidencing Rights in
such form as may be
- 36 -
approved by the 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 Right Certificates made in
accordance with the provisions of this Agreement. In addition, in connection
with the issuance or sale of Common Shares of the Company following the
Distribution Date and prior to the expiration, termination or redemption of the
Rights, the Company (a) shall, with respect to Common Shares of the Company so
issued or sold pursuant to the exercise of stock options or under any Plan, or
upon the exercise, conversion or exchange of securities hereinafter issued by
the Company, and (b) may, in any other case, if deemed necessary or appropriate
by the Board of Directors, issue Right Certificates representing the appropriate
number of Rights in connection with such issuance or sale; provided, however,
that (i) no such Right Certificate shall be issued if, and to the extent that,
the Company shall be advised by counsel that such issuance would create a
significant risk of material adverse tax consequences to the Company or the
Person to whom such Right Certificate would be issued, and (ii) no such Right
Certificate shall be issued if, and to the extent that, appropriate adjustment
shall otherwise have been made in lieu of the issuance thereof.
Section 23. Redemption and Termination.
(a) The Company may, at its option, by action of the Board of
Directors at any time prior to the Close of Business on the earlier of (i) the
10th day following the Shares 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 as such amount may be 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").
(b) In the event that if, following the occurrence of a Shares
Acquisition Date and following the expiration of the right of redemption under
Section 23(a), but prior to any Section 13 event, (i) a Person who is an
Acquiring Person or an Affiliate or Associate of such Person shall have
transferred or otherwise disposed of a number of Common Shares in one
transaction, or a series of transactions (not directly or indirectly involving a
purchase by the Company or any of its Subsidiaries), which did not result in the
occurrence of a Section 11(a)(ii) event or a Section 13 event, such that such
Person is thereafter a Beneficial Owner of 10 percent or less of the outstanding
Common Shares of the Company, (ii) there are no other Persons, immediately
following the transfer or other disposition described in clause (i), who are
Acquiring Persons, and (iii) the transfer or other disposition described in
clause (i) was other than pursuant to a transaction, or series of transactions,
which directly or indirectly involved the Company or any of its Subsidiaries;
then the right of redemption provided
- 37 -
in Section 23(a) shall be reinstated and thereafter all outstanding Rights shall
again be subject to the provisions of this Section 23. Notwithstanding anything
in this Agreement to the contrary, the Rights shall not be exercisable while the
Rights are subject to any right of redemption by the Company under this
Agreement.
(c) Immediately upon the action of the Board of Directors ordering
the redemption of the Rights, or at such time and date thereafter as the Board
of Directors may specify, 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. Promptly after
the action of the Board of Directors ordering the redemption of the Rights, the
Company shall give notice of such redemption to the holders of the then
outstanding Rights by mailing such notice to all such holders at their last
addresses as they appear upon the registry books of the Rights Agent or, prior
to the Distribution Date, on the registry books of the transfer agent for the
Common Shares Any notice which is mailed in the manner herein provided shall be
deemed given, whether or not the holder receives the notice. Each such notice of
redemption will state the method by which the payment of the Redemption Price
will be made. Neither the Company nor any of its Affiliates or Associates may
redeem, acquire or purchase for value any Rights in any manner other than that
specifically set forth in this Section 23, and other than in connection with the
purchase of Common Shares prior to the Distribution Date.
Section 24. Exchange.
(a) The Company may, at its option, by action of the Board of
Directors, at any time after any Person becomes an Acquiring Person, exchange
all or part of the then outstanding and exercisable Rights (which shall not
include Rights that have become void pursuant to the provisions of Section 7(f))
for Common Shares at an exchange ratio of one Common Share per Right,
appropriately adjusted to reflect any stock split, stock dividend or similar
transaction occurring after the date hereof (such exchange ratio being herein
referred to as the "Exchange Ratio"). Notwithstanding the foregoing, the Board
of Directors shall not be empowered to effect such exchange at any time after
any Person (other than the Company, any Subsidiary of the Company, any Plan of
the Company or of a Subsidiary of the Company, any Person holding Common Shares
for or pursuant to the terms of any such Plan, or any Person who is a party to
the Shareholder Stand-Together Agreement), together with all Affiliates and
Associates of such Person, becomes the Beneficial Owner of 50 percent or more of
the Common Shares then outstanding.
(b) Immediately upon the action of the Board of Directors of the
Company ordering the exchange of any Rights pursuant to Section 24(a) and
without any further action and
- 38 -
without any notice, the right to exercise such Rights shall terminate and the
only right thereafter of a holder of such Rights shall be to receive that number
of Common Shares equal to the number of such Rights held by such holder
multiplied by the Exchange Ratio. The Company shall promptly give public notice
of any such exchange; provided, however, that the failure to give, or any defect
in, such notice shall not affect the validity of such exchange. The Company
promptly shall mail a notice of any such exchange to all of the holders of such
Rights at their last addresses as they appear upon the registry books of the
Rights Agent. Any notice which is mailed in the manner herein provided shall be
deemed given, whether or not the holder receives the notice. Each such notice of
exchange will state the method by which the exchange of the Common Shares for
Rights will be effected and, in the event of any partial exchange, the number of
Rights which will be exchanged. Any partial exchange shall be effected pro rata
based on the number of Rights (other than Rights which have become void pursuant
to the provisions of Section 7(f) hereof) held by each holder of Rights.
(c) In any exchange pursuant to this Section 24, the Company, at its
option, may substitute Preferred Shares (or equivalent preferred shares, as such
term is defined in Section 11(b)) for Common Shares exchangeable for Rights, at
the initial rate of one one-hundredth of a Preferred Share (or equivalent
preferred share) for each Common Share, as appropriately adjusted to reflect
adjustments in the voting rights of the Preferred Shares pursuant to the terms
thereof, so that the fraction of a Preferred Share delivered in lieu of each
Common Share shall have at least the same voting rights as one Common Share.
(d) The Company shall not be required to issue fractions of Common
Shares or to distribute certificates which evidence fractional Common Shares. In
lieu of such fractional shares, the Company shall pay to the registered holders
of the Right Certificates with regard to which such fractional shares would
otherwise be issuable an amount in cash equal to the same fraction of the
current market value of a whole Common Share. For the purposes of this Section
24(d), the current market value of a whole share shall be the closing price of a
Common Share determined in the manner set forth in Section 11(d)(i) with respect
to the closing price for Common Shares for the Trading Day immediately prior to
the Exchange Date.
Section 25. Notice of Certain Events.
(a) In case the Company shall propose, at any time after the
Distribution Date, (i) to declare or pay any dividend payable in stock of any
class to the holders of its Preferred Shares or to make any other distribution
to the holders of its Preferred Shares (other than a regular quarterly cash
dividend), or (ii) to offer to the holders of its Preferred Shares options,
- 39 -
rights or warrants to subscribe for or to purchase any additional Preferred
Shares or shares of stock of any class or any other securities, rights or
options, or (iii) to effect any reclassification of its Preferred Shares (other
than a reclassification involving only the subdivision of outstanding Preferred
Shares), or (iv) to effect any consolidation or merger into or with, to effect
any exchange of the Common Shares of the Company pursuant to a statutory plan of
exchange 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 percent of the assets or earning power of the
Company and its Subsidiaries (taken as a whole) to, any other Person or Persons
(other than the Company and/or any of its Subsidiaries in a transaction which
complies with Section 11(o)), or (v) to effect the liquidation, dissolution or
winding up of the Company, then, in each such case, the Company shall give to
each holder of a Right Certificate, in accordance with Section 26, a notice of
such proposed action, which shall specify the record date for the purposes of
such stock dividend, or distribution of rights or warrants, or the date on which
such reclassification, consolidation, merger, statutory plan of exchange, sale,
transfer, liquidation, dissolution or winding up is to take place and the date
of participation therein by the holders of record of the Preferred Shares, if
any such date is to be fixed, and such notice shall be so given in the case of
any action covered by clause (i) or (ii) above at least 20 days prior to the
record date for determining holders of the Preferred Shares for purposes of such
action, and in the case of any such other action, at least 20 days prior to the
date of the taking of such proposed action or the date of participation therein
by the holders of the Preferred Shares, whichever shall be the earlier. The
failure to give notice required by this Section 25 or any defect therein shall
not affect the legality or validity of the action taken by the Company or the
vote upon any such action.
(b) In case any Section 11(a)(ii) event shall occur, then (i) the
Company shall as soon as practicable thereafter give to each holder of a Right
Certificate, in accordance with Section 26 hereof, a notice of the occurrence of
such event, which shall specify the event and the consequences of the event to
holders of Rights under Sections 11(a)(ii), and (ii) all references in Section
25(a) to Preferred Shares shall be deemed thereafter to refer to Common Shares
and/or, if appropriate, other securities.
Section 26. Notices. Notices or demands authorized by this Agreement
to be given or made by the Rights Agent or by the holder of any Right
Certificate to or on the Company shall be sufficiently given or made if sent by
first-class mail, postage prepaid, addressed (until another address is filed in
writing with the Rights Agent) as follows:
- 40 -
Willamette Industries, Inc.
3800 First Interstate Tower
▇▇▇▇ ▇. ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate 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
Right Certificate to or on the Rights Agent shall be sufficiently given or made
if sent by first-class mail, postage-prepaid, addressed (until another address
is filed in writing with the Company) to the principal office of the Rights
Agent as follows:
First Interstate Bank of Oregon, N. A.
▇▇▇▇ ▇. ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
Post Office Box 2971
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Stock Transfer Department
Notices or demands authorized by this Agreement to be given or made by the
Company or the Rights Agent to or on the holder of any Right Certificate (or, if
prior to the Distribution Date, to or on the holder of certificates representing
Common Shares of the Company) shall be sufficiently given or made if sent by
first-class mail, postage-prepaid, addressed to such holder at the address of
such holder as shown on the registry books of the Company.
Section 27. Supplements and Amendments.
(a) Prior to the Distribution Date, the Company may by action of the
Board of Directors, and the Rights Agent shall if the Company so directs,
supplement or amend any provision of this Agreement in any manner without the
approval of any holders of Common Shares. From and after the Distribution Date,
the Company may by action of the Board of Directors, and the Rights Agent shall
if directed by the Company, from time to time, supplement or amend this
Agreement without the approval of any holders of Right 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 herein or (iv) to change or
supplement any other provisions, hereunder in any manner which the Board of
Directors may deem necessary or desirable so long as the interests of the
holders of the Rights or Right Certificates (other than an Acquiring Person or
any Affiliate or Associate of an Acquiring Person) shall not be materially and
adversely affected thereby; provided, however, this Agreement may not be
supplemented or amended to lengthen, pursuant to clause (iii) of this sentence,
(A) a time period governing redemption of the Rights if the Rights are not then
redeemable, or (B) any other time period unless such lengthening
- 41 -
is for the purpose of protecting, enhancing or clarifying the rights of, and/or
the benefits to, the holders of Rights (other than an Acquiring Person or any
Affiliate or Associate of an Acquiring Person). Upon the delivery of a
certificate from an appropriate officer of the Company which states that the
proposed supplement or amendment is in compliance with the terms of this Section
27(a), the Rights Agent shall execute such supplement or amendment; provided,
however, that the Rights Agent may, but shall not be obligated to, enter into
any such supplement or amendment which affects its own rights, duties or
immunities under this Agreement. Prior to the Distribution Date, the interests
of the holders of Rights shall be deemed coincident with the interests of the
holders of the Common Shares of the Company.
(b) After the Distribution Date and prior to the earlier of the
Redemption Date or the Final Expiration Date, the Company shall not effect any
amendment to the provisions of the Company's Articles of Incorporation
respecting the Preferred Shares which would materially and adversely affect the
preferences, limitations and relative rights of the Preferred Shares, without
the prior approval of the holders of two-thirds or more of the then outstanding
Rights.
Section 28. 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 29. Benefits of Agreement. Nothing in this Agreement shall
be construed to give to any Person other than the Company, the Rights Agent and
the registered holders of the Right Certificates (and, prior to the Distribution
Date, the Common Shares of the Company) any legal or equitable right, remedy or
claim under this Agreement; but this Agreement shall be for the sole and
exclusive benefit of the Company, the Rights Agent and the registered holders of
the Right Certificates (and, prior to the Distribution Date, the Common Shares
of the Company).
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;
provided, however, that notwithstanding anything in this Agreement to the
contrary, if any such term, provision, covenant or restriction is held by such
court or authority to be invalid, void or unenforceable and the Board of
Directors determines in its good faith judgment that severing the invalid
language from this Agreement would adversely affect the purpose or effect of
this Agreement, the right of redemption set forth in Section 23 shall be
reinstated and shall not expire until the Close of
- 42 -
Business on the tenth day following the date of such determination by the Board
of Directors.
Section 31. Determinations and Actions by the Board of Directors,
etc. For all purposes of this Agreement, any calculation of the number of Common
Shares of the Company outstanding at any particular time, including for purposes
of determining the particular percentage of such outstanding shares of which any
Person is the Beneficial Owner, shall be made in accordance with the last
sentence of Rule 13d-3(d)(1)(i) under the Exchange Act as in effect on the date
hereof. Except as otherwise specifically provided herein, the Board of Directors
shall have the exclusive power and authority to administer this Agreement and to
exercise all rights and powers specifically granted to the Board of Directors or
to the Company, or as may be necessary or advisable in the administration of
this Agreement, including, without limitation, the right and power (a) to
interpret the provisions of this Agreement and (b) to make all determinations
deemed necessary or advisable for the administration of this Agreement. All such
actions, calculations, interpretations and determinations (including, for
purposes of clause (ii) below, all omissions with respect to the foregoing)
which are done or made by the Board of Directors in good faith shall (i) be
final, conclusive and binding on the Company, the Rights Agent, the holders of
the Rights and all other parties, and (ii) not subject the Board of Directors or
any member thereof to any liability to the holders of the Rights.
Section 32. Governing Law. This Agreement and each Right Certificate
issued hereunder shall be deemed to be a contract made under the laws of the
state of Oregon 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 33. 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 34. 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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
- 43 -
WILLAMETTE INDUSTRIES, INC.
By /s/ ▇. ▇. ▇▇▇▇▇▇▇
Name: ▇. ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
FIRST INTERSTATE BANK OF OREGON, N. A.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President & Manager
-44-
Exhibit A
---------
ARTICLES OF AMENDMENT
OF
WILLAMETTE INDUSTRIES, INC.
Pursuant to ORS 60. 134, Willamette Industries, Inc. , an Oregon
corporation, adopts the following Articles of Amendment for the purpose of
determining the terms of a series of shares of its Preferred Stock, $. 50 par
value:
1. The name of the corporation is: Willamette Industries, Inc.
2. The text of the amendment determining the terms of a series of
shares of Preferred Stock, $. 50 par value, of the corporation is attached
hereto as Appendix I.
3. The amendment was duly adopted by the Board of Directors of the
corporation on ______________, 1990.
Execution: --------------------------------------
Name:
Title:
Dated: , 1990
Person to contact about this filing: --------------------------------
(Telephone Number):
(S03) 224-5858
- 1 -
Appendix I
----------
AMENDMENT ADOPTED BY THE
BOARD OF DIRECTORS OF
WILLAMETTE INDUSTRIES, INC.
ESTABLISHING A SERIES OF PREFERRED STOCK
RESOLVED that pursuant to the authority vested in the Board of
Directors of the corporation in accordance with the provisions of its Articles
of Incorporation, as amended (the "Articles of Incorporation"), a series of the
Preferred Stock, $. 50 par value ("Preferred Stock"), of the corporation be, and
it hereby is, created, and that the designation and amount thereof and the
preferences, limitations and relative rights of the shares of such series are as
follows:
Section 1. Designation and Amount. There shall be a series of
Preferred Stock of the corporation which shall be designated as "Series A Junior
Participating Preferred Stock, $. 50 par value" (the "Series A Preferred
Stock"), and the number of shares constituting such series shall be 500,000.
Such number of shares may be increased or decreased by Articles of Amendment
adopted by the Board of Directors without shareholder action; provided, however,
that no decrease shall reduce the number of shares of Series A Preferred Stock
to a number less than the shares outstanding plus the number of shares issuable
upon exercise of outstanding rights, options or warrants or upon conversion of
outstanding securities issued by the corporation.
Section 2. Dividends and Distributions.
(A) Subject to the prior and superior rights of the holders of any
shares of any series of Preferred Stock ranking prior and superior to the Series
A Preferred Stock with respect to dividends, the holders of shares of Series A
Preferred Stock, in preference to the holders of shares of Common Stock, $. 50
par value ("Common Stock") of the corporation and of any other junior stock
which may be outstanding, shall be entitled to receive, when, as and if declared
by the Board of Directors out of funds legally available for the purpose, (i)
quarterly dividends payable in cash on the last day of March, June, September
and December in each year (each such date being referred to herein as a
"Quarterly Dividend Payment Date"), commencing on the first Quarterly Dividend
Payment Date after the first issuance of a share or fraction of a share of
Series A Preferred Stock, in an amount per share (rounded to the nearest cent)
equal to the greater of (a) $1. 00 per share ($. 01 per one one-hundredth of a
share), or (b) subject to the provision for adjustment hereinafter set forth,
100 times the aggregate per share amount of all cash dividends declared on the
Common Stock since the immediately preceding Quarterly Dividend Payment Date or,
with respect to the first Quarterly Dividend Payment Date, since the first
issuance of any share or fraction of a share of Series A
- 1 -
Preferred Stock, and (ii) subject to the provision for adjustment hereinafter
set forth, quarterly distributions (payable in kind) on each Quarterly Dividend
Payment Date in an amount per share equal to 100 times the aggregate per share
amount 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
since the immediately preceding Quarterly Dividend Payment Date, or with respect
to the first Quarterly Dividend Payment Date since the first issuance of any
share or fraction of a share of Series A Preferred Stock. In the event the
corporation shall at any time after February 26, 1990 (the "Rights Declaration
Date"), declare or pay any dividend on Common Stock payable in shares of Common
Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise) into a
greater or lesser number of shares of Common Stock, then in each such case the
amount to which holders of shares of Series A Preferred Stock are entitled under
clauses (i)(b) or (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
Series A Preferred Stock as provided in Section 2(A) 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 $1. 00 per share ($. 01 per one
one-hundredth of a share) on the Series A Preferred Stock shall nevertheless be
payable, out of funds legally available for such purpose, on such subsequent
Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Preferred Stock from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares of Series A 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 and be cumulative from the date of issue of such shares, or
unless the date of issue is a Quarterly Dividend Payment Date or is a date after
the record date for the determination of holders of shares of Series A Preferred
Stock entitled to receive a quarterly dividend and before such Quarterly
Dividend Payment Date, in either of which events such dividends shall begin to
accrue and be cumulative from such Quarterly Dividend Payment Date. Accrued but
unpaid dividends shall cumulate but shall not bear interest. Dividends paid on
- 2 -
the shares of Series A 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 Series A Preferred Stock entitled to receive payment of
a dividend or distribution declared thereon, which record date shall be not more
than 30 days prior to the date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series A
Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth,
each share of Series A Preferred Stock shall entitle the holder thereof to 100
votes (and each one one-hundredth of a share of Series A Preferred Stock shall
entitle the holder thereof to one vote) on all matters submitted to a vote of
the shareholders of the corporation. In the event the corporation shall at any
time after the Rights Declaration Date declare or pay any dividend on Common
Stock payable in shares of Common Stock, or effect a subdivision or combination
or consolidation of the outstanding shares of Common Stock (by reclassification
or otherwise) 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
Series A 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 in the Articles of Incorporation or
in this amendment thereof or by law, the holders of shares of Series A Preferred
Stock and the holders of shares of Common Stock shall vote together as one class
on all matters submitted to a vote of the shareholders of the corporation.
(C) Except as otherwise provided in the Articles of Incorporation or
in this amendment thereof or by law, holders of Series A Preferred Stock shall
have no special voting rights and their consent shall not be required for taking
any corporate action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Preferred Stock as provided in Section 2 are in arrears,
thereafter and until all accrued and unpaid dividends and distributions, whether
or not declared, on shares of Series A Preferred Stock outstanding shall have
been paid in full, the corporation shall not:
- 3 -
(i) declare or pay dividends on, make any other distributions
on any shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred Stock;
(ii) declare or pay dividends on or make any other
distributions on any shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the Series
A Preferred Stock, except dividends paid ratably on the Series A 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 tor
consideration shares of any stock ranking junior (either as to dividends
or upon liquidation, dissolution or winding up) with the Series A
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 Series A
Preferred Stock; or
(iv) purchase or otherwise acquire for consideration any
shares of Series A Preferred Stock, or any share of stock ranking on a
parity with the Series A 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 Section 4(A),
purchase or otherwise acquire such shares at such time and in such manner.
Section 5. Reacquired Shares. Any shares of Series A Preferred Stock
purchased or otherwise acquired by the corporation in any manner whatsoever
shall be retired and canceled promptly after the acquisition thereof. The
corporation shall take all such action as is necessary so that all such shares
shall after their cancellation become authorized but unissued shares of
Preferred Stock, without designation as to series, and may be reissued as part
of a new series of Preferred Stock to be created by Articles of Amendment
adopted by the Board of Directors without shareholder action, subject to the
conditions and restrictions on issuance set forth herein.
- 4 -
Section 6. Liquidation, Dissolution or Winding Up. Upon any
liquidation, dissolution or winding up of the corporation, no distribution shall
be made (A) to the holders of shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series A
Preferred Stock unless, prior thereto, the holders of shares of Series A
Preferred Stock shall have received the higher of (i) $1. 00 per share ($. 01
per one one-hundredth of a share), plus an amount equal to accrued and unpaid
dividends and distributions thereon, whether or not declared, to the date of
such payment, or (ii) 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 Common Stock; nor shall any distribution
be made (B) to the holders of stock ranking on a parity (either as to dividends
or upon liquidation, dissolution or winding up) with the Series A Preferred
Stock, except distributions made ratably on the Series A Preferred Stock and all
other such parity stock in proportion to the total amounts to which the holders
of all such shares are entitled upon such liquidation, dissolution or winding
up. In the event the corporation shall at any time after the Rights Declaration
Date declare or pay any dividend on Common Stock payable in shares of Common
Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise) 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 Series A Preferred Stock are
entitled under clause (A)(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.
Section 7. Consolidation, Merger, etc. In case the corporation shall
enter into any consolidation, merger, combination or other transaction in which
the shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, or otherwise changed, then in any
such case the shares of Series A 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 after the Rights
Declaration Date declare or pay any dividend on Common Stock payable in shares
of Common Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise) 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
- 5 -
change of shares of Series A 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 8. No Redemption. The shares of Series A Preferred Stock
shall not be redeemable. Notwithstanding the foregoing, the corporation may
acquire shares of Series A Preferred Stock in any other manner permitted by law,
the Articles of Incorporation or this amendment thereof.
Section 9. Rank. Unless otherwise provided in the Articles of
Incorporation or an amendment thereof relating to a subsequent series of
Preferred Stock of the corporation, the Series A Preferred Stock shall rank
junior to all other series of the corporation's Preferred Stock as to the
payment of dividends and the distribution of assets on liquidation, dissolution
or winding up, and senior to the Common Stock of the corporation.
Section 10. Amendment. The Articles of Incorporation shall not be
amended in any manner which would materially alter or change the powers,
preferences or special rights of the Series A Preferred Stock so as to affect
them adversely without the affirmative vote of the holders of at least a
majority of the outstanding shares of Series A Preferred Stock, voting
separately as a class.
Section 11. Fractional Shares. Series A Preferred Stock may be
issued in one-hundredths of a share or other fractions of a share which shall
entitle the holder, in proportion to such holder's fractional shares, to
exercise voting rights, receive dividends, participate in distributions and to
have the benefit of all other rights of holders of Series A Preferred Stock.
- 6 -
Exhibit B
---------
[Form of Right Certificate]
Certificate No. R ---------- Rights
NOT EXERCISABLE AFTER February 26, 2000, OR EARLIER IF REDEEMED. THE
RIGHTS ARE SUBJECT TO REDEMPTION AT $. O1 PER RIGHT ON THE TERMS SET
FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES
(SPECIFIED IN THE RIGHTS AGREEMENT), RIGHTS BENEFICIALLY OWNED BY AN
ACQUIRING PERSON (AS DEFINED IN THE RIGHTS AGREEMENT) OR ANY
SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID. [THE
RIGHTS REPRESENTED BY THIS RIGHT CERTIFICATE ARE OR WERE
BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON
OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS
ARE DEFINED IN THE RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHT
CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY BECOME VOID IN THE
CIRCUMSTANCES SPECIFIED IN THE RIGHTS AGREEMENT. ]1
Right Certificate
WILLAMETTE INDUSTRIES, INC.
This certifies that ______________, or registered assigns, is the
registered owner of the number of Rights set forth above, each of which entitles
the registered owner thereof, subject to the terms, provisions and conditions of
the Rights Agreement dated as of February 26, 1990 (the "Rights Agreement"),
between Willamette Industries, Inc. , an Oregon corporation (the "Company"), and
First Interstate Bank of Oregon, N. A. (the "Rights Agent," which term shall
include every successor Rights Agent under the Rights Agreement), 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 p. m. (Portland, Oregon time) on
February 26, 2000, at the office or agency of the Rights Agent or its successor
designated for such purpose, one one-hundredth of a fully paid nonassessable
share of Series A Junior Participating Preferred Stock, $. 50 par value (the
"Preferred Shares"), of the Company, at a purchase price initially of $175 per
one one-hundredth of a Preferred Share (the "Purchase Price"), upon presentation
and surrender of this Right Certificate with the Form of Election to Purchase
and related certificate duly executed. As provided in the Rights Agreement,
--------
1 That portion of the legend in brackets shall be inserted only if
applicable and shall replace the preceding sentence.
- 1 -
the Purchase Price and the number of Preferred Shares which may be purchased
upon the exercise of the Rights evidenced by this Right Certificate are subject
to modification and adjustment upon the happening of certain events.
This Right Certificate is subject to all of the terms, provisions
and conditions of the Rights Agreement, which terms, provisions and conditions
are hereby incorporated herein by reference and made a part hereof and to which
Rights Agreement reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities hereunder of the
Rights Agent, the Company and the holders of the Right Certificates. Copies of
the Rights Agreement are on file at the principal executive offices of the
Company and are available from the Rights Agent or the Company upon written
request.
Upon the occurrence of certain events specified in Section 7(f) of
the Rights Agreement, if the Rights evidenced by this Right Certificate are or
were beneficially owned by an Acquiring Person or an Affiliate or Associate of
an Acquiring Person (as such terms are defined in the Rights Agreement) or,
under certain circumstances, a transferee of any such Acquiring Person,
Affiliate or Associate, such Rights shall become null and void and any holder
thereof (whether or not such holder is an Acquiring Person or an Affiliate or
Associate of an Acquiring Person) shall thereafter have no right to exercise
such Rights.
In certain circumstances described in the Rights Agreement, the
Rights evidenced hereby may entitle the holder hereof to purchase capital stock
of an entity other than the Company or receive cash or other assets, all as
prescribed in the Rights Agreement.
This Right Certificate, with or without other Right Certificates,
upon surrender at the office or agency of the Rights Agent designated for such
purpose, may be exchanged for another Right Certificate or Right Certificates of
like tenor and date evidencing Rights equal to the aggregate number of Rights
evidenced by the Right Certificate or Right Certificates surrendered. If this
Right Certificate shall be exercised in part, the holder shall be entitled to
receive upon surrender hereof another Right Certificate or Right Certificates
for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights
evidenced by this Right Certificate may, but are not required to, be redeemed by
the Company at a redemption price of $. 01 per Right or exchanged by the Company
at the rate of one Common Share per Right.
Fractional Preferred Shares will be issued upon the exercise of any
Right or Rights evidenced hereby only in
- 2 -
fractions which are integral multiples of one one-hundredth of a Preferred Share
(which may, at the election of the Company, be evidenced by depositary
receipts). In lieu of the issuance of fractional shares other than in integral
multiples of one one-hundredth of a Preferred Share, a cash payment will be made
as provided in the Rights Agreement.
No holder of this Right Certificate shall be entitled to vote or
receive dividends or be deemed for any purpose the holder of the Preferred
Shares or of any other securities of the Company which may at any time be
issuable on the exercise hereof, nor shall anything contained in the Rights
Agreement or herein be construed to confer upon the holder hereof, as such, any
of the rights of a 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, to give or withhold consent to any corporate action, to receive
notice of meetings or other actions affecting shareholders (except as provided
in the Rights Agreement), or to receive dividends or other subscription rights,
or otherwise, until the Right or Rights evidenced by this Right Certificate
shall have been exercised as provided in the Rights Agreement.
This Right Certificate shall not be valid or obligatory for any
purpose until it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers
of the Company and its corporate seal. Dated as of
--------------.
ATTEST: WILLAMETTE INDUSTRIES, INC.
---------------------------------- --------------------------------------
Secretary President
Countersigned:
FIRST INTERSTATE BANK OF OREGON, N. A.
By ---------------------------------
Authorized Signature
- 3 -
[Form of Reverse Side of Right Certificate]
FORM OF ASSIGNMENT
------------------
(To be executed by the registered holder if such
holder desires to transfer the Right Certificate. )
FOR VALUE RECEIVED -------------- hereby sells, assigns and
transfers unto ----------------------------------------------------------------
--------------------------------------------------------------------------------
(Please print name and address of transferee)
--------------------------------------------------------------------------------
this Right Certificate, together with all right, title and interest therein, and
does hereby irrevocably constitute and appoint ______________ Attorney, to
transfer the within Right Certificate on the books of the within-named Company,
with full power of substitution.
Dated: ---------------------------------, 19--
--------------------------------------
Signature
Signature Guaranteed:
Certificate
-----------
The undersigned hereby certifies by checking the appropriate boxes
that:
(1) this Right Certificate [ ] is [ ] is not being sold, assigned
and transferred by or on behalf of a Person who is or was an Acquiring Person or
an Affiliate or Associate of any such Acquiring Person (as such terms are
defined in the Rights Agreement); and
(2) after due inquiry and to the best knowledge of the undersigned,
the undersigned [ ] did [ ] did not acquire the Rights evidenced by this Right
Certificate from any Person who is, was or subsequently became an Acquiring
Person or an Affiliate or Associate of an Acquiring Person.
Dated: -----------------, 19-- --------------------------------------
Signature
- 4 -
[Form of Reverse Side of Right Certificate -- continued]
--------------------------------------------------------------------------------
NOTICE
------
The signatures in the foregoing Assignment and Certificate must
correspond to the name as written upon the face of this Right Certificate in
every particular, without alteration or enlargement or any change whatsoever.
The signatures in the foregoing Assignment must be guaranteed by a
member firm of a registered national securities exchange, a member of the
National Association of Securities Dealers, Inc. , or a commercial bank or trust
company having an office or correspondent in the United States.
In the event the certification set forth above is not completed, the
Company may deem the beneficial owner of the Rights evidenced by this Right
Certificate to be an Acquiring Person or an Affiliate or Associate thereof (as
such terms are defined in the Rights Agreement) and, in the case of an
assignment, may affix a legend to that effect on any Right Certificates issued
in exchange for this Right Certificate.
- 5 -
[Form of Reverse Side of Right Certificate -- continued]
FORM OF ELECTION TO PURCHASE
----------------------------
(To be executed if holder desires to
exercise the Right Certificate. )
To WILLAMETTE INDUSTRIES, INC.
The undersigned hereby irrevocably elects to exercise
____________________________ Rights represented by this Right Certificate to
purchase the Preferred Shares issuable upon the exercise of such Rights and
requests that certificates for such Preferred Shares be issued in the name of:
--------------------------------------------------------------------------------
(Please print name and address)
--------------------------------------------------------------------------------
Please insert social security or other identifying number:
----------------------------
If such number of Rights shall not be all the Rights evidenced by this Right
Certificate, a new Right Certificate for the balance remaining of such Rights
shall be registered in the name of and delivered to:
--------------------------------------------------------------------------------
(Please print name and address)
--------------------------------------------------------------------------------
Dated ----------------- , 19--
--------------------------------------
Signature
Signature Guaranteed:
Certificate
-----------
The undersigned hereby certifies by checking the appropriate boxes
that:
(1) the Rights evidenced by this Right Certificate [ ] are [ ] are
not beneficially owned by an Acquiring Person or an Affiliate or an Associate
thereof (as such terms are defined in the Rights Agreement); and
- 6 -
[Form of Reverse Side of Right Certificate -- continued]
(2) after due inquiry and to the best knowledge of the undersigned,
the undersigned [ ] did [ ] did not acquire the Rights evidenced by this Right
Certificate from any person who is, was or subsequently became an Acquiring
Person or an Affiliate or Associate of an Acquiring Person.
Dated: ----------------, 19-- --------------------------------------
Signature
--------------------------------------------------------------------------------
NOTICE
------
The signatures in the foregoing Form of Election to Purchase and
Certificate must correspond to the name as written upon the face of this Right
Certificate in every particular, without alteration or enlargement or any change
whatsoever.
The signatures in the foregoing Form of Election to Purchase must be
guaranteed by a member firm of a registered national securities exchange, a
member of the National Association of Securities Dealers, Inc. , or a commercial
bank or trust company having an office or correspondent in the United States.
In the event the certification set forth above is not completed, the
Company may deem the beneficial owner of the Rights evidenced by this Right
Certificate to be an Acquiring Person or an Affiliate or Associate thereof (as
such terms are defined in the Rights Agreement) and, in the case of an
assignment, may affix a legend to that effect on any Right Certificates issued
in exchange for this Right Certificate.
- 7 -
Exhibit C
---------
WILLAMETTE INDUSTRIES, INC.
SUMMARY OF RIGHTS TO PURCHASE PREFERRED STOCK
On February 7, 1990, the Board of Directors of Willamette
Industries, Inc. (the "Company"), declared a dividend distribution of one Right
for each outstanding share of common stock, $. 50 par value (the "Common
Stock"), of the Company to the shareholders of record at the close of business
on February 26, 1990 (the "Record Date"). Each Right entitles the registered
holder to purchase from the Company one one-hundredth of a share of Junior
Participating Preferred Stock, $. 50 par value (the "Preferred Shares"), at a
price of $175 per share (the "Purchase Price"), subject to adjustment. The
description and terms of the Rights are set forth in a Rights Agreement dated
February 26, 1990 (the "Rights Agreement"), between the Company and First
Interstate Bank of Oregon, N. A. , as Rights Agent (the "Rights Agent").
Initially, the Rights will be attached to all Common Stock
certificates representing shares then outstanding, and no separate certificates
evidencing Rights (the "Right Certificates") will be distributed. Until the
earlier to occur of (i) 10 days following a public announcement that a person or
group of affiliated or associated persons (other than the Company, its employee
benefit plans, persons who are parties to a certain shareholder stand-together
agreement or any successor agreement or a person who acquires his shares in a
Sanctioned Tender Offer as defined below) (an "Acquiring Person"), acquired, or
obtained the right to acquire, beneficial ownership of 20% or more of the
outstanding shares of Common Stock and (ii) 10 business days (or such later date
as may be determined by action of the Board of Directors) following the
commencement of (or the announcement of an intention to make) a tender offer or
exchange offer (other than a Sanctioned Tender Offer) the consummation of which
would result in the beneficial ownership by a person or group of 30% or more of
the outstanding shares of Common Stock, the Rights will be evidenced, with
respect to any of the Common Stock certificates outstanding as of the Record
Date, by such Common Stock certificate. The earlier of the dates described in
clauses (i) and (ii) above is referred to as the "Distribution Date." A
"Sanctioned Tender Offer" is a tender or exchange offer for all outstanding
shares of Common Stock at a price and on terms which a majority of the Board of
Directors determines to be fair and in the best interests of the Company and its
shareholders, other than the person making such offer and his affiliates and
associates.
The Rights Agreement provides that, until the Distribution Date, the
Rights will be transferred with and only with the Common Stock. As long as the
Rights are attached to the
- 1 -
Common Stock, the Company will issue one Right with each share of Common Stock
that becomes outstanding so that all outstanding shares will have attached
Rights. Until the Distribution Date (or earlier redemption or expiration of the
Rights), (i) Common Stock certificates issued after the Record Date upon
transfer or new issuance of Common Stock will contain a notation incorporating
the Rights Agreement by reference and (ii) the surrender for transfer of any
certificates evidencing Common Stock will also constitute the transfer of the
Rights associated with the Common Stock represented by such certificate. As soon
as practicable following the Distribution Date, Right Certificates will be
mailed to holders of record of the Common Stock as of the close of business on
the Distribution Date and such separate Right Certificates alone will evidence
the Rights.
The Rights are not exercisable until the Distribution Date. The
Rights will expire at the earliest of (i) February 25, 2000, (ii) upon
consummation of certain approved merger or exchange transactions as described
below, and (iii) upon redemption by the Company as described below.
In the event that any person becomes an Acquiring Person, proper
provision shall be made so that each holder of a Right (except as provided
below) will thereafter have the right to receive upon exercise that number of
shares of Common Stock of the Company having a market value of two times the
exercise price of the Right.
In the event that, at any time following the Distribution Date, the
Company is acquired in a merger or other business combination transaction, or
more than 50% of its assets or earning power is sold, proper provision shall be
made so that each holder of a Right (except as provided below) will thereafter
have the right to receive, upon the exercise at the then current exercise price
of the Right, that number of shares of common stock of the acquiring or
surviving company having a market value of two times the exercise price of the
Right. The Rights will expire in connection with a merger or other business
combination transaction following a Sanctioned Tender Offer if shareholders are
offered the same price and form of consideration in the merger or other business
combination transaction as that paid in the Sanctioned Tender Offer.
Following the occurrence of any of the events described in the
preceding two paragraphs, any Rights that are or (under certain circumstances
specified in the Rights Agreement) were, beneficially owned by any Acquiring
Person shall immediately become null and void.
The Purchase Price payable, and the number of Preferred Shares or
other securities or property issuable, upon exercise of the Rights are subject
to adjustment from time to time to prevent dilution.
- 2 -
No fractional Preferred Shares other than fractions in multiples of
one one-hundredth of a share will be issued and, in lieu thereof, an adjustment
in cash will be made based on the market price of the Preferred Shares on the
last trading date prior to the date of exercise.
At any time prior to the tenth day following the first public
announcement of the existence of an Acquiring Person, the Company may redeem the
Rights in whole, but not in part, at a price of $. 01 per Right (the "Redemption
Price"). Subject to certain conditions, the Company's right of redemption may be
reinstated after the expiration of the ten-day redemption period if each
Acquiring Person reduces its beneficial ownership to 10% or less of the
outstanding shares of Common Stock in a transaction or series of transactions
not involving the Company. Immediately upon the action of the Board of Directors
ordering the redemption of the Rights (or at such time and date thereafter as
the Board of Directors may specify), the right to exercise the Rights will
terminate and the only right of the holders of Rights will be to receive the
Redemption Price.
At any time after a person becomes an Acquiring Person and prior to
the Acquisition by such Acquiring Person of 50% or more of the outstanding
shares of Common Stock, the Company may exchange the Rights (other than Rights
beneficially owned by such Acquiring Person which became null and void), in
whole or in part, for Common Stock at the rate of one share per Right, subject
to adjustment.
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.
The provisions of the Rights Agreement may be amended in any manner
prior to the Distribution Date. After the Distribution Date, the provisions of
the Rights Agreement may be amended in order to cure any ambiguity, defect or
inconsistency, to make changes which do not adversely affect the interests of
holders of Rights (excluding the interest of any Acquiring Person), or to
shorten or lengthen any time period under the Rights Agreement; provided,
however, that no amendment to adjust the time period governing redemption shall
be made at such time as the Rights are not redeemable.
- 3 -
Amendment No. 1 to Rights Agreement
This Amendment No. 1 to Rights Agreement ("Amendment") dated as of
December 3, 1996, by Willamette Industries, Inc., an Oregon corporation (the
"Company");
WHEREAS the Company is a party to that certain Rights Agreement
dated as of February 26, 1990, between the Company and First Interstate Bank of
Oregon, N.A., as Rights Agent (the "Rights Agreement"); and
WHEREAS, the Company wishes to amend the Rights Agreement to permit
ChaseMellon Shareholder Services, L.L.C. ("ChaseMellon") to serve as Rights
Agent under the Rights Agreement, and to appoint ChaseMellon as Rights Agent;
NOW, THEREFORE, pursuant to Section 27 of the Rights Agreement, the
Company amends the Rights Agreement as follows:
1. The fifth sentence of Section 21 is hereby amended in its
entirety to read as follows:
"Any successor Rights Agent, whether appointed by the Company or by such a
court, shall either be ChaseMellon Shareholder Services, L.L.C., or a
corporation organized and doing business under the laws of the United
States or the state of Oregon (or of any other state of the United States
so long as such corporation is authorized to do business as a banking
institution in the state of Oregon), in good standing, having a principal
office in the state of Oregon, which is authorized under such laws to
exercise corporate trust or stock transfer powers and which has at the
time of its appointment as Rights Agent a combined capital and surplus of
at least $50 million."
2. ChaseMellon is appointed as Rights Agent and all references in
the Rights Agreement to the Rights Agent shall mean ChaseMellon.
In Witness Whereof, this Amendment has been duly executed as of the
date first written above.
WILLAMETTE INDUSTRIES, INC.
By /s/ ▇. ▇. ▇▇▇▇▇▇▇
▇. ▇. ▇▇▇▇▇▇▇
Executive Vice President and Chief
Financial Officer, Secretary and
Treasurer
ChaseMellon Shareholder Services, L.L.C., hereby accepts appointment
as Rights Agent under the Rights Agreement dated as of February 26, 1990,
between Willamette Industries, Inc., and First Interstate Bank of Oregon, N.A.,
as Rights Agent, and assumes all of the duties and obligations of the Rights
Agent under such Rights Agreement.
CHASEMELLON SHAREHOLDER SERVICES,
L.L.C.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Assistant Vice President