3D SYSTEMS CORPORATION And COMPUTERSHARE TRUST COMPANY, N.A. Rights Agreement Dated as of December 9, 2008
Exhibit 4.1
3D SYSTEMS CORPORATION
Page
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Section
1.Definitions.
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1
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Section
2.Appointment of
Rights Agent.
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6
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Section
3.Issue of Right
Certificates.
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6
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Section
4.Form of Right
Certificates.
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9
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Section
5.Countersignature and
Registration.
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9
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Section
6.Transfer,
Split Up, Combination and Exchange of Right Certificates; Mutilated,
Destroyed, Lost or Stolen Right Certificates.
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9
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Section
7.Exercise of
Rights; Purchase Price; Expiration Date of
Rights.
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10
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Section
8.Cancellation
and Destruction of Right Certificates.
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11
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Section
9.Availability
of Series A Preferred Shares.
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11
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Section
10.Series A
Preferred Shares’ Record Date.
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12
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Section
11.Adjustment of
Purchase Price, Number of Shares or Number of
Rights.
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13
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Section
12.Certificate
of Adjusted Purchase Price or Number of Shares.
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19
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Section
13.Consolidation, Merger
or Sale or Transfer of Assets or Earning
Power.
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19
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Section
14.Fractional
Rights and Fractional Shares.
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20
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Section
15.Rights of
Action.
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21
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Section
16.Agreement of
Right Holders.
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21
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Section
17.Right
Certificate Holder Not Deemed a Stockholder.
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22
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Section
18.Concerning
the Rights Agent.
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22
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Section
19.Merger or
Consolidation or Change of Name of Rights
Agent.
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23
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Section
20.Duties of
Rights Agent.
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23
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Section
21.Change of
Rights Agent.
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25
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Section
22.Issuance of
New Right Certificates.
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26
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-i-
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Section
23.Redemption.
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26
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Section
▇▇.▇▇▇▇▇▇▇▇.
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27
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Section
25.Notice of
Certain Events.
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28
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Section
26.Notices.
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28
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Section
27.Supplements
and Amendments.
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29
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Section
28.Successors.
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30
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Section
29.Determinations and
Actions by the Board of Directors, etc.
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30
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Section
30.Benefits of
this Agreement.
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30
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Section
31.Severability.
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30
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Section
32.Governing
Law.
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30
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Section
33.Counterparts.
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31
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Section
34.Descriptive
Headings.
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31
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Section
35.Force
Majeure.
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31
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Exhibit
A -
Form
of Certificate of Designations
Exhibit
B -
Form
of Right Certificate
Exhibit
C -
Summary of
Rights to Purchase Preferred Shares
-ii-
RIGHTS
AGREEMENT dated as of December 9, 2008 between 3D SYSTEMS CORPORATION, a
Delaware corporation (the “Company”), and
COMPUTERSHARE TRUST COMPANY, N.A., a federally chartered trust company, as
rights agent (the “Rights
Agent”).
The Board
of Directors of the Company has authorized and declared a dividend of one
preferred share purchase right (a “Right”) for each
Common Share (as hereinafter defined) of the Company outstanding on December 22,
2008 (the “Record
Date”), each Right representing the right to purchase one one-hundredth
of a Series A Preferred Share (as hereinafter defined), upon the terms and
subject to the conditions set forth in this Agreement, and has further
authorized and directed 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 hereinafter defined).
Accordingly,
in consideration of the premises and the mutual agreements set forth in this
Agreement, the parties hereby agree as follows:
Section
1. Definitions. For
purposes of this Agreement, the following terms have the meanings
indicated:
(a) “Acquiring Person”
shall mean any Person who or which, together with all Affiliates and Associates
of such Person, shall be the Beneficial Owner of 15% or more of the Common
Shares of the Company then outstanding; provided, however,
that, notwithstanding any other provision of this Agreement, the term “Acquiring
Person” shall not include (i) the Company, any Subsidiary of the Company, any
employee benefit or stock ownership plan of the Company or any Subsidiary of the
Company, or any entity holding Common Shares for or pursuant to the terms of any
such plan, (ii) any Exempt Person (as defined below), or (iii) any other Person
whose Beneficial Ownership of the Common Shares then outstanding increases
solely as the result of an acquisition of Common Shares by the Company which, by
reducing the number of Common Shares of the Company outstanding, increases the
proportionate number of Common Shares of the Company beneficially owned by such
Person to 15% or
more of the Common Shares of the Company then outstanding; provided, however, that, if a
Person covered by this clause (iii) or any affiliate or Associate of such
Person shall become the Beneficial Owner of 15% or more of the Common Shares of
the Company then outstanding by reason of share purchases by the Company and
shall, after such share purchases by the Company, become the Beneficial Owner of
any additional Common Shares of the Company (other than as a result of a stock
dividend, rights dividend, stock split or similar transaction effected by the
Company in which all holders of Common Shares are treated equally), then such
Person shall be deemed to be an “Acquiring Person” unless upon becoming the
Beneficial Owner of such additional Common Shares such person does not
beneficially own 15% or more of the Common Shares then
outstanding. Notwithstanding the foregoing, if the Board of Directors
of the Company determines in good faith that a Person who would otherwise be an
“Acquiring Person,” as defined pursuant to the foregoing provisions of this
paragraph (a), has become an Acquiring Person inadvertently, and such
Person divests as promptly as practicable a sufficient number of Common Shares
so that such Person would no longer be an “Acquiring Person,” as defined
pursuant to the foregoing provisions of this paragraph (a), or, in the case of
any Derivative Securities underlying a transaction entered into by such Person
or otherwise acquired by such Person or any Affiliate or Associate of such
Person, such Person terminates such transaction or otherwise disposes of such
Derivative Securities, then such Person shall not be deemed to be an “Acquiring
Person” for any purposes of this Agreement.
(b) “Affiliate” shall have
the meaning ascribed to such term in Rule 12b-2 of the General Rules and
Regulations under the Exchange Act as in effect on the date of this
Agreement.
(c) “Associate” shall have
the meaning ascribed to such term in Rule 12b-2 of the General Rules and
Regulations under the Exchange Act as in effect on the date of this
Agreement.
(d) A Person
shall be deemed the “Beneficial Owner” of
and shall be deemed to “beneficially own” any
securities:
(i) which such
Person or any of such Person’s Affiliates or Associates, directly or indirectly,
beneficially owns, within the meaning of Rule 13d−3 of the General Rules and
Regulations promulgated under the Exchange Act as in effect on the date of this
Agreement;
(ii) which such
Person or any of such Person’s Affiliates or Associates has (A) the right to
acquire (whether such right is exercisable immediately or only after the passage
of time or upon the satisfaction of any condition, whether or not within the
control of such Person, Affiliate or Associate) pursuant to any agreement,
arrangement or understanding (whether or not in writing, but other than
customary agreements with and between underwriters and selling group members
with respect to a bona fide public offering
of securities), or upon the exercise of conversion rights, exchange rights,
rights (other than the Rights existing from time to time under this Agreement),
warrants or options, or otherwise; provided, however, that a
Person shall not be deemed the Beneficial Owner of, or to beneficially own,
securities tendered pursuant to a tender or exchange offer made by 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 pursuant to any agreement, arrangement or understanding (whether or not in
writing) other than a Derivative Security; provided, however, that a
Person shall not be deemed the Beneficial Owner of, or to beneficially own, any
security if the agreement, arrangement or understanding to vote such security
(1) arises solely from a revocable proxy or consent given to such Person in
response to a solicitation made pursuant to, and in accordance with,
Section 14(a) of the Exchange Act by way of a solicitation statement filed
on Schedule 14(a), and (2) other than a Derivative Security is not also
then reportable on Schedule 13D under the Exchange Act (or any comparable or
successor report); or
(iii) which are
beneficially owned, directly or indirectly, by any other Person with which such
Person or any of such Person’s Affiliates or Associates has any agreement,
arrangement or understanding (whether or not in writing, but other than
customary agreements with and between underwriters and selling group members
with respect to a bona fide public offering
of securities) for the purpose of acquiring, holding, voting (except to the
extent contemplated by the proviso to Section 1(d)(ii)(B) of this Agreement) or
disposing of any securities of the Company;
2
(iv) which are
Derivative Securities; provided that the
number of Common Shares deemed beneficially owned as a result of such Derivative
Securities shall equal the number of Common Shares that are synthetically owned
pursuant to the derivative transactions underlying such Derivative
Securities.
Notwithstanding
any other provision of this definition of Beneficial Ownership, (i) the phrase
“then outstanding,” when used with reference to a Person’s Beneficial Ownership
of securities of the Company, shall mean the number of such securities then
issued and outstanding together with the number of such securities not then
actually issued and outstanding which such Person would be deemed to own
beneficially hereunder if the right to acquire such securities were fully and
effectively exercised and (ii) nothing in this Section 1(d) shall cause a Person
engaged in business as a bona fide underwriter of securities to be deemed to be
the “Beneficial Owner” of, or to “beneficially own,” any securities acquired
through such Person's participation as an underwriter in good faith in a firm
commitment underwriting until the expiration of forty days after the date of
such acquisition, and then only if such securities continue to be owned by such
Person at such expiration of forty days.
(e) “Business Day” shall
mean any day other than a Saturday, a Sunday, or a day on which banking
institutions in the Commonwealth of Massachusetts are authorized or obligated by
law or executive order to close.
(f) “Close of Business” on
any given date shall mean 5:00 P.M., Eastern time, on such date; provided, however, that, if
such date is not a Business Day, it shall mean 5:00 P.M., Eastern time, on the
next succeeding Business Day.
(g) “Common Shares” when
used with reference to the Company shall mean the shares of common stock, par
value $.001 per share, of the Company. “Common Shares” when used with
reference to any Person other than the Company shall mean the capital stock (or
equity interest) with the greatest voting power of such other Person or, if such
other Person is a Subsidiary of another Person, the Person or Persons which
ultimately control such first-mentioned Person.
(h) “Derivative
Securities” shall mean:
(A) securities
underlying a derivative transaction entered into by a Person, or derivative
securities acquired by a Person, which give such Person the economic equivalent
of ownership of an amount of securities in the Company due to the fact that the
value of the derivative transaction is explicitly determined by reference to the
price or value of securities in the Company, without regard to whether (i) such
derivative securities convey any voting rights in securities in the Company to
such Person, (ii) such derivative securities are required to be, or capable of
being, settled through delivery of securities in the Company, or (iii) such
Person may have entered into other transactions that hedge the economic effect
of such derivative securities;
3
(B) any
derivative, swap or other transaction or series of transactions engaged in,
directly or indirectly, by such Person, the purpose or effect of which is to
give such Person economic risk similar to ownership of shares of any class or
series of the Company, including due to the fact that the value of such
derivative, swap or other transactions are determined by reference to the price,
value or volatility of any shares of any class or series of the Company, or
which derivative, swap or other transactions provide, directly or indirectly,
the opportunity to profit from any increase in the price or value of shares of
any class or series of the Company (“Synthetic Equity Interests”),
without regard to whether (x) the derivative, swap or other transactions convey
any voting rights in such shares to such Person, (y) the derivative, swap or
other transactions are required to be, or are capable of being, settled through
delivery of such shares or (z) such Person may have entered into other
transactions that hedge or mitigate the economic effect of such derivative, swap
or other transactions;
(C) any proxy
(other than a revocable proxy or consent given in response to a solicitation
made pursuant to, and in accordance with, Section 14(a) of the Exchange Act by
way of a solicitation statement filed on Schedule 14A), agreement, arrangement,
understanding or relationship pursuant to which such Person has or shares a
right to vote any shares of any class or series of the Company; or
(D) any
agreement, arrangement, understanding or relationship, including any repurchase
or similar so-called “stock borrowing” agreement or arrangement, engaged in,
directly or indirectly, by such Person, the purpose or effect of which is to
mitigate loss to, reduce the economic risk (of ownership or otherwise) of shares
of any class or series of the Company by, manage the risk of share price changes
for, or increase or decrease the voting power of, such Person with respect to
the shares of any class or series of the Company, or which provides, directly or
indirectly, the opportunity to profit from any decrease in the price or value of
the shares of any class or series of the Company (“Short
Interests”).
(i) “Distribution Date”
shall mean the earlier of (x) the Close of Business on the tenth day after the
Shares Acquisition Date and (y) the Close of Business on the tenth Business Day
(or such later date as may be determined by action of the Board of Directors of
the Company 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 employee benefit or stock ownership 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 a tender or
exchange offer the consummation of which would result in such Person becoming an
Acquiring Person (including any such date which is after the date of this
Agreement and prior to the Record Date for the issuance of the
Rights.
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(j) “Exchange Act” shall
mean the Securities Exchange Act of 1934, as amended.
(k) “Exchange Ratio” shall
have the meaning set forth in Section 24(a) of this Agreement.
(l) “Exempt Person” shall
mean (i) St. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ & Company, L.L.C., (ii) ▇. ▇▇▇▇ Price
Associates, Inc., (iii) The ▇▇▇▇▇ Estates, Inc., (iv) Daruma Asset Management,
Inc., (vi) G. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇, (vii) ▇▇▇▇▇ ▇. ▇▇▇▇▇, and (viii) any
Affiliate or Associate of any of the foregoing; provided, however, that any such Person shall
cease to be an Exempt Person hereunder at such time as such Person may be required to make a filing on
Schedule 13D under Rule 13d-1 of the General Rules and Regulations promulgated
under the Exchange Act, or an amendment to a previously filed Schedule 13D, in
which the purpose or purposes described in response to Item 4 of such Schedule
13D or such amendment, as applicable, is other than passive investment in the
securities of the Company.
(m) “Final Expiration
Date” shall mean the earlier to occur of (i) December 22, 2011, or such
later date as approved by the independent members of the Board of Directors of
the Company (so long as such determination is made prior to December 22, 2011),
or (ii) December 22, 2018.
(n) “NASDAQ” shall mean
The NASDAQ Stock Market LLC.
(o) “Person” shall mean
any individual, firm, corporation, partnership, limited liability company,
limited liability partnership, association, trust, syndicate or other entity,
and shall include any successor (by merger or otherwise) of such entity, as well
as any unincorporated group of individuals or entities that, by formal or
informal agreement or arrangement (whether or not in writing), have embarked on
a common purpose or act.
(p) “Preferred Shares”
shall mean shares of Preferred Stock, par value $.001 per share, of the Company
authorized to be issued pursuant to the Company’s Certificate of Incorporation,
as amended from time to time, other than the Series A Preferred Shares (as
defined below) or the shares of any other class of Preferred Stock issued and
outstanding from time to time.
(q) “Purchase Price” shall
have the meaning set forth in Section 4 of this Agreement.
(r) “Record Date” shall
have the meaning set forth in the second paragraph of this
Agreement.
(s) “Redemption Date”
shall have the meaning set forth in Section 7(a) of this Agreement.
(t) “Redemption Price”
shall have the meaning set forth in Section 23(a) of this
Agreement.
(u) “Reduced Threshold”
shall have the meaning set forth in Section 27 of this Agreement.
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(v) “Right” shall have the
meaning set forth in the second paragraph of this Agreement.
(w) “Right Certificate”
shall mean a Right Certificate, in substantially the form of Exhibit B to this
Agreement, evidencing one Right for each issued and outstanding Common
Share.
(x) “Security”
shall mean the Common Shares, the Series A Preferred Stock, any other class or
series of the Company’s Preferred Stock or any other class of capital stock then
outstanding, and prior to any Distribution Date the Rights.
(y) “Shares Acquisition
Date” shall mean the first date of public announcement by the Company or
an Acquiring Person that an Acquiring Person has become such.
(z) “Subsidiary” of any
Person shall mean any corporation or other entity of which a majority of the
voting power of the voting equity securities or equity interest is owned,
directly or indirectly, by such Person.
(aa) “Summary of Rights”
shall have the meaning set forth in Section 3(b) of this Agreement.
(bb) “Trading Day” shall
mean a day on which the principal national securities exchange on which a
Security is listed or admitted to trading is open for the transaction of
business, or, if the Security is not listed or admitted to trading on any
national securities exchange but is quoted on an over-the-counter market, a day
on which such over-the-counter market is in operation or if the
Security is neither listed nor admitted to trading on any national securities
exchange or any over-the-counter market, a Business Day.
Section
2. Appointment of Rights
Agent. The Company hereby appoints the Rights Agent to act as
agent for the Company in accordance with the terms and conditions of this
Agreement, and the Rights Agent hereby accepts such appointment. The
Company may from time to time appoint such co-Rights Agents as it may deem
necessary or desirable upon ten (10) days’ prior written notice to the Rights
Agent. The Rights Agent shall have no duty to supervise, and shall in
no event be liable for, the acts or omissions of any such co-Rights
Agent.
Section
3. Issue of Right
Certificates.
(a) Until the
Distribution Date, (x) the Rights will be evidenced (subject to the provisions
of Section 3(d) of this Agreement) by the Common Shares registered in the names
of the holders thereof, whether or not represented by certificates for Common
Shares issued to any such holder (which Common Shares shall also be deemed to
represent Right Certificates), and (y) the right to receive Right Certificates
will be transferable only in connection 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 any certificate for
Common Shares of the Company outstanding on the Record Date, with or without a
copy of the Summary of Rights attached thereto, shall also constitute the
transfer of the Rights associated with the Common Shares of the Company
represented thereby.
6
(b) As
promptly as practicable after the Record Date, the Company will furnish a copy
of a Summary of Rights to Purchase Series A Preferred Shares, in substantially
the form of Exhibit C to this Agreement (the “Summary of Rights”),
to each record holder of Common Shares as of the Close of Business on the Record
Date. At any time following the Record Date, the Company will furnish
a copy of the Summary of Rights to any record holder of Common Shares who
requests a copy of the Summary of Rights, at the address of such holder shown on
the records of the Company.
(c) Rights
shall be issued in respect of, and attached to, all Common Shares issued from
the Company’s authorized but unissued shares (or transferred or delivered from
the Company’s treasury) after the Record Date but prior to the earliest of the
Distribution Date, the Redemption Date or the Final Expiration Date. In the
event that the Company purchases or acquires any Common Shares of the Company
after the Record Date but prior to the earliest to occur of the Distribution
Date, the Redemption Date or the Final Expiration Date, the Company shall not be
entitled to exercise any Rights associated with the Common Shares that are no
longer outstanding, whether they are held in the Company’s treasury or otherwise
retired, and any Rights associated with such Common Shares shall be deemed
cancelled and retired unless and until the Company reissues those Common Shares
from its treasury or otherwise. From and after the Record Date until
the earliest to occur of the Distribution Date, the Redemption Date or the Final
Expiration Date all outstanding Company Shares shall include the following
legends:
(i) Common
Shares registered in the name of the holder thereof in the records of the
transfer agent for the Company’s Common Shares, whether so registered in
certificated or uncertificated form, and confirmation and account statements
sent to holders of Common Shares held in book-entry or uncertificated form shall
bear the following legend:
The shares
of Common Stock, par value $.001 per share, of 3D Systems Corporation (the
“Corporation”)
entitle the holder thereof to certain Rights as set forth in a Rights Agreement
between the Corporation and Computershare Trust Company, N.A., dated as of
December 9, 2008 (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
Corporation. 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 the shares to which this statement relates. The
Corporation will mail (or cause the Rights Agent to mail) to the holder of
shares to which this statement relates a copy of the Rights Agreement without
charge promptly after receipt of a written request therefor. Under
certain circumstances set forth in the Rights Agreement, Rights issued to an
Acquiring Person or any Associate or Affiliate thereof (as such terms are
defined in the Rights Agreement) may be null and void. The Rights
shall not be exercisable, and shall be void so long as held, by a holder in any
jurisdiction where the requisite qualification for the issuance to such holder,
or the exercise by such holder of the Rights in such jurisdiction, shall not
have been obtained or be obtainable.
7
As set
forth in Section 3(a), with respect to Common Shares in book-entry form, until
the earliest of the Distribution Date, the Redemption Date or the Final
Expiration Date, the Rights associated with the Common Shares shall be evidenced
by such Common Shares alone and registered holders of Common Shares shall also
be the registered holders of the associated Rights, and the transfer of any of
such Common Shares shall also constitute the transfer of the Rights associated
with such shares of Common Shares.
(ii) In the
case of certificated shares, certificates for Common Shares which are issued
after the Record Date but prior to the earliest of the Distribution Date, the
Redemption Date or the Final Expiration Date shall have impressed on, printed
on, written on or otherwise affixed to them the following legend:
This
certificate also evidences and entitles the holder hereof to certain rights as
set forth in an Agreement between 3D Systems Corporation (the “Corporation”) and
Computershare Trust Company, N.A., as Rights Agent, dated as of December 9,
2008, as it may be amended from time to time (the “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
Corporation. Under certain circumstances, as set forth in the
Agreement, such Rights (as defined in the Agreement) will be evidenced by
separate certificates and will no longer be evidenced by this certificate. The
Corporation will mail (or cause the Rights Agent to mail) to the holder of this
certificate a copy of the Agreement without charge after receipt of a written
request therefor. As set forth in the Agreement, Rights beneficially
owned by any Person (as defined in the Agreement) who becomes an Acquiring
Person (as defined in the Agreement) become null and void.
As set
forth in Section 3(a), with respect to such certificates as are issued or
outstanding prior to the earliest of the Distribution Date, the Redemption Date
or the Final Expiration Date, the Rights associated with the Common Shares of
the Company represented by such certificates shall be evidenced by such
certificates alone, and the surrender for transfer of any such certificate shall
also constitute the transfer of the Rights associated with the Common Shares of
the Company represented thereby.
(d) Upon the
occurrence of a Distribution Date, the Rights will cease to be attached to and
to be a part of the Common Shares and will become a separate Security of the
Company. As soon as practicable after the Distribution Date, subject
to Section 11(a)(ii), the Company will cause the Rights owned by each holder of
record of the Common Shares at the Close of Business on the Distribution Date to
be recorded on the records of the Rights Agent as Rights owned of record by such
holders and will prepare and execute for each holder of record of
Rights who requests certificated Rights, and cause the Rights Agent to
countersign, and the Company will thereafter send or cause to be sent to each
such 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 to this
Agreement (a “Right
Certificate”), evidencing one Right for each Common Share then so
held. All other Rights shall be recorded in the records of the Rights
Agent as uncertificated Rights. As of the Distribution Date,
certificated Rights will be evidenced solely by such Right Certificates, and
uncertificated Rights will be evidenced by book entries in the records of the
Rights Agent.
8
Section
4. Form of Right
Certificates. Rights may be issued in certificated or
uncertificated form, and after the Distribution Date, any Rights issued in
certificated form shall be represented by Right Certificates (and the forms of
election to purchase Series A Preferred Shares and of assignment to be printed
on the reverse thereof) in substantially the form of Exhibit B to this
Agreement. Right Certificates may be issued with 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 applicable rule or regulation made pursuant thereto or with any applicable
rule or regulation of any stock exchange, trading market or automated quotation
system on which the Right Certificates may from time to time be listed, or to
conform to customary usage. Subject to the provisions of Section 22
of this Agreement, any Right Certificates evidencing Rights associated with
Common Shares outstanding on the Record Date shall be dated as of the Record
Date, any Rights associated with Common Shares issued after the Record Date
shall be dated the date of issuance of such Common Shares, and, in any case,
each Right Certificate on their its shall entitle the holder thereof to purchase
such number of one one-hundredths (0.01) of a Series A Preferred Share as shall
be set forth therein at the price per one one-hundredth of a Series A Preferred
Share set forth therein (the “Purchase Price”), but
the number of such one one-hundredths of a Series A Preferred Share and the
Purchase Price shall be subject to adjustment as provided in this
Agreement.
Section
5. Countersignature and
Registration. The Right Certificates shall be executed on
behalf of the Company by its Chairman of the Board, its Chief Executive Officer,
its President, any of its Vice Presidents or its Treasurer, either manually or
by facsimile signature, shall have affixed thereto the Company’s seal or a
facsimile thereof, and 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 by the
Rights Agent, either manually or by facsimile signature, 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 individual 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 individual who, at the
actual date of the execution of such Right Certificate, shall be a duly elected
or appointed officer of the Company authorized to sign such Right Certificate,
although at the date of the execution of this Agreement any such individual was
not such an officer.
9
Section
6. Transfer, Split Up,
Combination and Exchange of Right Certificates; Mutilated, Destroyed, Lost or
Stolen Right Certificates. Following the Distribution Date,
the Rights Agent will keep or cause to be kept, at its principal office, books
for registration and transfer of the Rights. Such books shall show
the names and addresses of the respective holders of record of the Rights, the
number of Rights held of record by each holder of the Rights and the date of the
issuance of each Right. Subject to the provisions of Section 14 of this
Agreement, at any time after the Close of Business on the Distribution Date, and
at or prior to the Close of Business on the earlier of the Redemption Date or
the Final Expiration Date, any Rights and any Right Certificate or Right
Certificates (other than Rights and Right Certificates representing Rights that
have become void pursuant to Section 11(a)(ii) of this Agreement or that
have been exchanged pursuant to Section 24 of this Agreement) may be
transferred, split up, combined or exchanged for whole or factional Rights or
for another Right Certificate or Right Certificates. Any registered
holder desiring to transfer, split up, combine or exchange any Right, Right
Certificate or Right Certificates shall make such request in writing delivered
to the Rights Agent, and shall surrender the Right Certificate or Right
Certificates to be transferred, split up, combined or exchanged at the principal
office of the Rights Agent. Thereupon, for any certificated Right,
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.
Upon
receipt by the Company and the Rights Agent of evidence reasonably satisfactory
to them of the loss, theft, destruction or mutilation of a Right Certificate,
and, in case of loss, theft or destruction, of indemnity or security reasonably
satisfactory to them, and, at the Company’s request, reimbursement to the
Company and the Rights Agent of all reasonable expenses incidental thereto, and
upon surrender to the Rights Agent and cancellation of the Right Certificate if
mutilated, the Company will make and deliver a new Right Certificate of like
tenor to the Rights Agent for delivery to the registered holder in lieu of the
Right Certificate so lost, stolen, destroyed or mutilated.
Section
7. Exercise of Rights; Purchase
Price; Expiration Date of Rights.
(a) The holder
of record of any Right, whether or not certificated, may exercise the Rights so
held of record (except as otherwise provided herein), in whole or in part, at
any time after the Distribution Date, upon surrender of the Right Certificate if
certificated evidencing such Rights, with the form of election to purchase on
the reverse side thereof duly executed, together with payment of the Purchase
Price or if not certificated, with a form of election to purchase substantially
in the form printed on the reverse side of a Right Certificate duly executed,
together with payment of the Purchase Price to the Rights Agent at the principal
office of the Rights Agent, for each one one-hundredth of a Series A Preferred
Share as to which the Rights are exercised, at or prior to the earliest of (i)
the Final Expiration Date, (ii) the time at which the Rights are redeemed as
provided in Section 23 of this Agreement (the “Redemption Date”), or
(iii) the time at which such Rights are exchanged as provided in Section 24 of
this Agreement.
(b) The
Purchase Price for each one one-hundredth of a Series A Preferred Share
purchasable pursuant to the exercise of a Right shall initially be $55.00, and
shall be subject to adjustment from time to time as provided in Section 11 or 13
of this Agreement, and shall be payable in lawful money of the United States of
America in accordance with paragraph (c) below.
10
(c) Upon
receipt of a Right Certificate representing exercisable Rights, with the form of
election to purchase duly executed, accompanied by payment of the Purchase Price
for the shares to be purchased 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 of this Agreement by certified check, cashier’s check or
immediately available funds or money order payable to the order of the Company,
the Rights Agent shall thereupon promptly (i) (A) requisition from any
transfer agent of the Series A Preferred Shares certificates for the number of
Series A Preferred Shares to be purchased and the Company hereby irrevocably
authorizes any such transfer agent to comply with all such requests, or (B)
requisition from the depositary agent depositary receipts representing such
number of one one-hundredths of a Series A Preferred Share as are to be
purchased (in which case certificates for the whole number of Series A Preferred
Shares represented by such receipts shall be deposited by the transfer agent of
the Series A Preferred Shares with such depositary agent) and the Company hereby
directs such 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 Series A Preferred Shares in accordance with Section
14 of this Agreement; (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 be designated by such holder; and (iv) when appropriate, after receipt,
promptly deliver such cash to or upon the order of the registered holder of such
Right Certificate.
(d) In case
the registered holder of any Right Certificate shall exercise less than all the
Rights evidenced thereby, a new Right Certificate evidencing Rights equivalent
to the Rights remaining unexercised shall be issued by the Rights Agent to the
registered holder of such Right Certificate or to such holder’s duly authorized
assigns, subject to the provisions of Section 14 of this Agreement.
(e) Notwithstanding
any other provision of this Agreement, any and all Rights outstanding
at the Close of Business on the Final Expiration Date shall expire, without any
consideration or payment being due to the holders thereof.
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 duly authorized agents, be delivered
to the Rights Agent for cancellation or in cancelled form, or, if surrendered to
the Rights Agent, shall be cancelled by it, and no Right Certificates shall be
issued in lieu thereof except as expressly permitted by any of the provisions of
this Agreement. The Company shall deliver to the Rights Agent for
cancellation and retirement, and the Rights Agent shall so cancel and retire,
any other Right Certificate purchased or acquired by the Company otherwise than
upon the exercise thereof. The Rights Agent shall deliver all
cancelled Right Certificates to the Company, or shall, at the written request of
the Company that complies with the document retention policies of the Company
and the Rights Agent, destroy such cancelled Right Certificates, and, in such
case, shall deliver a certificate of destruction thereof to the
Company.
Section
9. Availability of Series A
Preferred Shares.
(a) The
Company covenants and agrees that it will cause to be reserved and kept
available out of its authorized and unissued Preferred Shares or any Preferred
Shares held in its treasury the number of Preferred Shares that will be
sufficient to permit the exercise in full of all outstanding Rights in
accordance with Section 7 of this Agreement.
11
(b) The
Company shall use all reasonable efforts to (i) file, as soon as practicable
following the earliest date after any Person, alone or together with its
Affiliates and Associates, becomes an Acquiring Person, or as soon as is
required by law following the Distribution Date, as the case may be, a
registration statement under the Securities Act of 1933, as amended, with
respect to the securities purchasable upon exercise of the Rights on an
appropriate form, (ii) cause such registration statement to become effective as
soon as practicable after such filing, and (iii) cause such registration
statement to remain effective (with a prospectus at all times meeting the
requirements of the Act) until the earlier of (A) the date as of which the
Rights are no longer exercisable for such securities, and (B) the date of the
expiration of the Rights. The Company will also take such action as
may be appropriate under, or to ensure compliance with, the securities or “blue
sky” laws of the various states in connection with the exercisability of the
Rights. The Company may temporarily suspend, for a period of time not
to exceed 120 days after the date set forth in clause (i) of the first sentence
of this Section 9(b), the exercisability of the Rights in order to prepare and
file such registration statement and permit it to become
effective. Upon any such suspension, the Company shall issue a public
announcement stating that the exercisability of the Rights has been temporarily
suspended, as well as a public announcement at such time as the suspension is no
longer in effect. Notwithstanding any provision of this Agreement to
the contrary, the Rights shall not be exercisable in any jurisdiction unless the
requisite qualification in such jurisdiction shall have been
obtained.
(c) The
Company covenants and agrees that, subject to the payment by the holders thereof
of an amount of Purchase Price not less than the aggregate par value of each
fraction of a share of Series A Preferred Stock to be issued upon the exercise
of Rights, it will take all such action as may be necessary to ensure that all
Series A Preferred Shares delivered upon exercise of Rights shall, at the time
of delivery of the certificates for such Series A Preferred Shares, be duly and
validly authorized and issued and fully paid and nonassessable
shares.
(d) The
Company further covenants and agrees that it will pay when due and payable any
and all federal and state transfer taxes and charges which may be payable in
respect of the issuance or delivery of the Right Certificates or of any Series A
Preferred Shares upon the exercise of Rights. The Company shall not,
however, be required to pay any transfer tax which may be payable in respect of
any transfer or delivery of Right Certificates to a Person other than, or the
issuance or delivery of certificates or depositary receipts or entries in the
records of the transfer agent for the Series A Preferred Shares in a name other
than that of, the registered holder of the Right Certificate evidencing Rights
surrendered for exercise or to issue or to deliver any certificates for Series A
Preferred Shares or depositary receipts or entries in the records of the
transfer agent for Series A Preferred Shares 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.
12
Section
10. Series A Preferred Shares’
Record Date. Each Person in whose name any certificate is
issued or entry is made in the records of the Company or its transfer agent for
a number of Series A Preferred Share upon the exercise of Rights shall for all
purposes be deemed to have become the holder of record of whole number of the
Series A Preferred Shares represented thereby on, and such certificate or entry
in the records of the transfer agent shall be dated, the date upon which Rights
were duly exercised or the Right Certificate evidencing such Rights was duly
surrendered and payment of the Purchase Price (and any applicable transfer
taxes) was in either case made; provided, however, that, if the
date of such exercise or surrender and payment is a date upon which the transfer
books of the Company for the Series A Preferred Shares are closed, such Person
shall be deemed to have become the record holder of such shares on, and such
certificate or entry in the records of the transfer agent shall be dated, the
next succeeding Business Day on which the transfer books of the Company related
to Series A Preferred Shares are open. Prior to the exercise of the
Rights and the recording in the records of the transfer agent of the issuance of
the Series A Preferred Shares acquired upon such exercise, the holder of a Right
shall not be entitled to any rights of a stockholder of the Company with respect
to shares of Series A Preferred Stock for which the Rights shall be exercisable
or Common Shares for which they may be exchangeable, including, without
limitation, the right to vote, to receive dividends or other distributions or to
exercise any preemptive rights, and shall not be entitled to receive any notice
of any proceedings of the Company, except as provided herein.
Section
11. Adjustment of Purchase
Price, Number of Shares or Number of Rights. The Purchase
Price, the number of Series A Preferred Shares covered by each Right and the
number of Rights outstanding are subject to adjustment from time to time as
provided in this Section 11.
(a)
(i) In the
event the Company shall at any time after the date of this Agreement (A) declare
a dividend on the Series A Preferred Shares payable in Series A Preferred
Shares, (B) subdivide the outstanding Series A Preferred Shares, (C) combine the
outstanding Series A Preferred Shares into a smaller number of Series A
Preferred Shares or (D) issue any shares of its capital stock in a
reclassification of the Series A Preferred Shares (including any such
reclassification in connection with a consolidation or merger in which the
Company is the continuing or surviving corporation), except as otherwise
provided in this Section 11(a), the Purchase Price in effect at the time of the
record date for such dividend or of the effective date of such subdivision,
combination or reclassification, and the number and kind of shares of capital
stock issuable on such date, shall be proportionately adjusted so that the
holder of any Right exercised after such time shall be entitled to receive, upon
payment of the Purchase Price then in effect, the aggregate number and kind of
shares of capital stock which such holder would have owned upon such exercise
and been entitled to receive by virtue of such dividend, subdivision,
combination or reclassification if such Right had been exercised immediately
prior to such date and at a time when the transfer books of the Company related
to the Series A Preferred Shares were open; provided, however, that in no
event shall the consideration to be paid upon the exercise of one Right be less
than the aggregate par value of the fraction of a share of capital stock of the
Company issuable upon exercise of one Right.
If an
event occurs which would require an adjustment under both 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).
13
(ii) Subject to
Section 24 of this Agreement, in the event any Person becomes an Acquiring
Person, each holder of record of a Right (other than a Right beneficially owned
by such Acquiring Person or any Affiliate or Associate of such Acquiring Person)
shall thereafter have a right to receive, in accordance with the terms of this
Agreement and in lieu of Series A Preferred Shares or fractions thereof issuable
upon the exercise of such Right, such number of Common Shares of the Company as
shall equal the result obtained by (A) multiplying the then current Purchase
Price by the number of one one-hundredths of a Series A Preferred Share for
which a Right is then exercisable, and dividing that product by (B) 50% of the
then current per share market price of a Common Share of the Company (determined
pursuant to Section 11(d) of this Agreement) on the date of the occurrence of
such event. In the event that any Person shall become an Acquiring
Person while the Rights are outstanding, the Company shall not take any action
which would eliminate or diminish the benefits intended to be afforded by the
then outstanding Rights.
From and
after the date that any Person becomes an Acquiring Person, any Rights that are
or become beneficially owned by such Acquiring Person (or any Associate or
Affiliate of such Acquiring Person) shall be void, and any such holder of such
Rights shall thereafter have no right to exercise such Rights under any
provision of this Agreement, whether or not such Rights are deemed to be
attached to any Common Shares beneficially owned by such Acquiring
Person. Any Common Shares reflected in the records of the Company or
its transfer agent for Common Shares that also includes or is deemed to
represent pursuant to Section 3 of this Agreement any Rights beneficially
owned by an Acquiring Person or any Associate or Affiliate thereof shall be
deemed to be void as it relates to such Rights, and any Right Certificate issued
to or beneficially owned by such Acquiring Person or any Associate or Affiliate
thereof shall be deemed to be void pursuant to this Section
11(a)(ii).
(iii) In the
event that there shall not be sufficient Common Shares available for issuance to
permit the exercise in full of the Rights in accordance with subparagraph (ii)
above, the Company shall use all reasonable efforts to take all such action as
may be necessary to authorize additional Common Shares for issuance upon
exercise of the Rights in accordance with subparagraph (ii) above. In
the event the Company shall, after good faith effort, be unable to effect all
such action as may be necessary to so authorize the issuance of such additional
Common Shares, the Company shall use all reasonable efforts to substitute, for
each Common Share that would otherwise be issuable upon exercise of a Right in
accordance with subparagraph (ii) above, a number of Series A Preferred Shares
or fractions thereof such that the then current per share market price of one
Series A Preferred Share (determined pursuant to Section 11(d) of this
Agreement) multiplied by such number or fraction would be equal to the then
current per share market price of one Common Share as of the date of issuance of
such Series A Preferred Shares or fractions thereof.
14
(b) In case
the Company shall fix a record date for the issuance of rights, options or
warrants to all holders of Series A Preferred Shares entitling them (for a
period expiring within 45 calendar days after such record date) to subscribe for
or purchase Series A Preferred Shares (or shares having the same rights,
privileges and preferences as the Series A Preferred Shares (“equivalent Series A
Preferred Shares”)) or securities convertible into Series A Preferred
Shares or equivalent Series A Preferred Shares at a price per Series A Preferred
Share or equivalent Series A Preferred Share (or having a conversion price per
share, if a security convertible into Series A Preferred Shares or equivalent
Series A Preferred Shares) less than the then current per share market price of
the Series A Preferred Shares issued and outstanding on such record date, the
Purchase Price to be in effect after such record date shall be determined by
multiplying the Purchase Price in effect immediately prior to such record date
by a fraction, the numerator of which shall be the number of Series A Preferred
Shares outstanding on such record date and the denominator of which shall be sum
of the number of Series A Preferred Shares outstanding on such record date plus
the number of additional Series A Preferred Shares and/or equivalent Series A
Preferred Shares that would be outstanding if all of such rights, options or
warrants were duly exercised and all of such convertible securities were duly
converted; provided, however, that in no
event shall the consideration to be paid upon the exercise of one Right be less
than the aggregate par value of the fraction of a share of capital stock of the
Company issuable upon exercise of one Right. In case such
subscription price may be paid in a consideration part or all of which shall be
in a form other than cash, the value of such consideration shall be as
determined in good faith by the Board of Directors of the Company, whose
determination shall be described in a statement filed with the Rights Agent and
shall be binding on the Rights Agent and holders of the
Rights. Series A 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 such rights, options, warrants or convertible
securities are so issued.
(c) In case
the Company shall fix a record date for the making of a distribution to all
holders of the Series A Preferred Shares (including any such distribution made
in connection with a consolidation or merger in which the Company is the
continuing or surviving corporation) of evidences of indebtedness or assets
(other than a regular quarterly cash dividend or a dividend payable in Series A
Preferred Shares) or subscription rights or warrants (excluding those referred
to in Section 11(b) of this Agreement), 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 then-current per share market price of the Series A Preferred
Shares on such record date, less the fair market value (as determined in good
faith by the Board of Directors of the Company, whose determination shall be
described in a statement filed with the Rights Agent and shall be binding on the
Rights Agent and holders of the Rights) of the assets or evidences of
indebtedness so to be distributed or of such subscription rights or warrants
applicable to one Series A Preferred Share and the denominator of which shall be
such then-current per share market price of the Series A Preferred Shares on
such record date; provided, however, that in no
event shall the consideration to be paid upon the exercise of one Right be less
than the aggregate par value of the fraction of a share of capital stock of the
Company to be issued upon exercise of one Right. Such adjustments
shall be made successively whenever such a record date is fixed and any such
distribution is so made.
15
(d)
(i) For the
purpose of any computation hereunder, the “current per share market price” of
any Security (other than the Series A Preferred Shares) on any date shall be
deemed to be the average of the daily closing prices per share of such Security
for the 30 consecutive Trading Days that end at the Close of Business on the
Trading Day immediately prior to such date; provided, however, that, in the
event that the Trading Days during which such current per share market price is
being determined include a period following the announcement by the issuer of
such Security of (A) a dividend or distribution on such Security payable in
shares of such Security or Securities convertible into such shares, or (B) any
subdivision, combination or reclassification of such Security and prior to the
expiration of 30 Trading Days the ex-dividend date for such dividend or
distribution occurs, or the record date for such subdivision, combination or
reclassification occurs, then, and in each such case, the current per share
market price shall be appropriately adjusted to reflect the current market price
per share equivalent of such Security after giving effect to such
event. The closing price for each day shall be either (x) the
last sale price, regular way, or, in case no such sale takes place on such day,
,the average of the bid and asked prices, regular way, in either case reported
as of 4:00 P.M. Eastern time in the principal consolidated transaction reporting
system with respect to securities listed or admitted to trading on NASDAQ or
such other principal national securities exchange on which the Security is
listed or admitted to trading or, (y) if the Security is not listed or
admitted to trading on any national securities exchange, the last quoted price
reported at or prior to 4:00 P.M. Eastern time or, if not so quoted, the average
of the high bid and low asked prices in the over-the-counter market, or,
(z) if on any such date the Security is 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 Security selected by the Board
of Directors. If the current per share market price of the Security
cannot be determined in the manner provided in clauses (x), (y) or (z) above, or
if the Security is not publicly held or not so listed or traded, “current per
share market price” of the Security shall mean the fair value per share as
determined in good faith by the Board of Directors, whose determination shall be
described in a statement filed with the Rights Agent and shall be conclusive for
all purposes.
(ii) For the
purpose of any computation under this Agreement of the “current per share market
price” of the Series A Preferred Shares then outstanding, if (x) the Series
A Preferred Shares are then listed or admitted to trading on NASDAQ or another
principal national securities exchange or are traded in an over-the-counter
market, such current per share market price shall be determined in accordance
with the method set forth in Section 11(d)(i), (y) the Series A Preferred
Shares are not then publicly traded, the “current per share market price” of the
Series A Preferred Shares shall be conclusively deemed to be the current per
share market price of the Common Shares as determined pursuant to Section
11(d)(i) of this Agreement (appropriately adjusted to reflect any stock split,
stock dividend or similar transaction relating to the Common Shares occurring
after the date of this Agreement), multiplied by one hundred, and (z) if
neither the Common Shares nor the Series A 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 of the Company,
whose determination shall be described in a statement filed with the Rights
Agent and shall be conclusive for all purposes.
16
(e) Notwithstanding
any other provision of this Agreement, no adjustment in the Purchase Price shall
be required unless such adjustment would require an increase or decrease of at
least 1% in the Purchase Price as then in effect; 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 one one-millionth of a Series A Preferred
Share or one ten-thousandth of any other share or security as the case may
be. Notwithstanding the first sentence of this Section 11(e), any
adjustment required by this Section 11 shall be made no later than the earlier
of (i) three years from the date of the transaction which requires such
adjustment or (ii) the date of the expiration of the right to exercise any
Rights.
(f) If, as a
result of an adjustment made pursuant to Section 11(a) of this Agreement, the
holder of any Right thereafter exercised shall become entitled to receive any
shares of capital stock of the Company other than Series A Preferred
Shares, thereafter the number of such other shares so receivable upon exercise
of any such Right then outstanding and exercisable 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 Series A Preferred Shares
contained in Section 11(a) through Section 11(c) of this Agreement,
inclusive, and the provisions of Sections 7, 9, 10 and 13 of this Agreement with
respect to the Series A Preferred Shares shall apply on like terms to any such
other shares.
(g) All Rights
originally issued by the Company subsequent to any adjustment made to the
Purchase Price hereunder shall evidence the right to purchase, at the adjusted
Purchase Price, the number of one one-hundredths of a Series 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) of this
Agreement, upon each adjustment of the Purchase Price as a result of the
calculations made in Sections 11(b) and (c) of this Agreement, 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 Series A Preferred Share (calculated to the nearest one
one-millionth of a Series A Preferred Share) obtained by (A) multiplying (x) the
number of one one-hundredths of a share covered by a Right immediately prior to
this adjustment by (y) the Purchase Price in effect immediately prior to such
adjustment of the Purchase Price and (B) dividing the product so obtained by the
Purchase Price in effect immediately after such adjustment of the Purchase
Price.
(i) The
Company may elect, on or after the date of any adjustment of the Purchase Price,
to adjust the number of Rights in lieu of any adjustment in the number of one
one-hundredths of a Series A Preferred Share purchasable upon the exercise of a
Right. Each of the Rights outstanding after such adjustment shall be
exercisable for the number of one one-hundredths of a Series A Preferred Share
for which a Right was exercisable immediately prior to such
adjustment. Each Right held of record prior to such adjustment (a
“Prior Right”) shall become that number of Rights (calculated to the nearest one
ten-thousandth) obtained by multiplying each Prior Right by the amount obtained
by dividing the Purchase Price in effect immediately prior to adjustment of the
Purchase Price by the Purchase Price in effect immediately after adjustment of
the Purchase Price. The Company shall make a public announcement of
its election to adjust the number of Rights, indicating the record date for the
adjustment, and, if known at the time, the amount of the adjustment to be
made. This record date may be the date on which the Purchase Price is
adjusted or any day thereafter, but, if any Right Certificates have been issued,
shall be at least 10 days later than the date of the public
announcement. If Right Certificates have been issued, upon each
adjustment of the number of Rights pursuant to this Section 11(i), the Company
shall, as promptly as practicable, cause to be distributed to holders of record
of Right Certificates on such record date Right Certificates evidencing, subject
to Section 14 of this Agreement, the additional Rights to which such holders
shall be entitled as a result of such adjustment, or, at the option of the
Company, shall cause to be distributed to such holders of record in substitution
and replacement for the Right Certificates held by such holders prior to the
date of adjustment, and upon surrender thereof, if required by the Company, new
Right Certificates evidencing all the Rights to which such 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 shall be registered in the names of the holders of record of
Right Certificates on the record date specified in the public
announcement.
17
(j) Irrespective
of any adjustment or change in the Purchase Price or in the number of one
one-hundredths of a Series A Preferred Share issuable upon the exercise of the
Rights, any Right Certificates theretofore and thereafter issued may continue to
express the Purchase Price and the number of one one-hundredths of a Series A
Preferred Share 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 of the Series A Preferred Shares
issuable upon exercise of the Rights, the Company shall take any corporate
action which may, in the opinion of its counsel, be necessary in order that the
Company may validly and legally issue fully paid and nonassessable Series A
Preferred Shares at such adjusted Purchase Price.
(l) In any
case in which this Section 11 shall require that an adjustment in the Purchase
Price be made effective as of a record date for a specified event, the Company
may elect to defer until the occurrence of such event the issuing to the holder
of any Right exercised after such record date of the Series A Preferred Shares
and other capital stock or securities of the Company, if any, issuable upon such
exercise over and above the Series A Preferred Shares and other capital stock or
securities of the Company, if any, issuable upon such exercise on the basis of
the Purchase Price in effect prior to such adjustment; provided, however, that the
Company shall deliver to such holder a due ▇▇▇▇ or other appropriate instrument
evidencing such holder’s right to receive such additional shares upon the
occurrence of the event requiring such adjustment.
(m) Anything
in this Section 11 to the contrary notwithstanding, the Company shall be
entitled to make such reductions in the Purchase Price, in addition to those
adjustments expressly required by this Section 11, as and to the extent that it,
in its sole discretion, shall determine to be advisable in order that any
consolidation or subdivision of the Series A Preferred Shares, issuance wholly
for cash of any Series A Preferred Shares at less than the current market price,
issuance wholly for cash of Series A Preferred Shares or securities which by
their terms are convertible into or exchangeable for Series A Preferred Shares,
dividends on Series A Preferred Shares payable in Series A Preferred Shares or
issuance of rights, options or warrants referred to in Section 11(b) of this
Agreement, hereafter made by the Company to holders of the Series A Preferred
Shares shall not be taxable to such stockholders.
18
(n) In the
event that, at any time after the date of this Agreement and prior to the
Distribution Date, the Company shall (i) declare or pay any dividend on the
Common Shares payable in Common Shares, or (ii) effect a subdivision,
combination or consolidation of the Common Shares (by reclassification or
otherwise than by payment of dividends in Common Shares) into a greater or
lesser number of Common Shares, then, in any such case, the number of one
one-hundredths of a Series A Preferred Share purchasable after such event upon
proper exercise of each Right shall be determined by multiplying the number of
one one-hundredths of a Series A Preferred Share so purchasable immediately
prior to such event by a fraction, the numerator of which is the number of
Common Shares outstanding immediately before such event and the denominator of
which is the number of Common Shares outstanding immediately after such event.
The adjustments provided for in this Section 11(n) shall be made successively
whenever such a dividend is declared or paid or such a subdivision, combination
or consolidation is effected.
Section
12. Certificate of Adjusted
Purchase Price or Number of Shares. Whenever an adjustment is
made as provided in Section 11 or 13 of this Agreement, the Company shall
promptly (a) prepare a certificate setting forth such adjustment and a brief
statement of the facts accounting for such adjustment, (b) file with the Rights
Agent and with each transfer agent for the Common Shares or the Series A
Preferred Shares and the Securities and Exchange Commission a copy of such
certificate and (c) if such adjustment occurs at any time after the Distribution
Date, furnish a brief summary thereof to each holder of record of a Right in
accordance with Section 25 of this Agreement.
Section
13. Consolidation, Merger or
Sale or Transfer of Assets or Earning Power. In the event
that, directly or indirectly, at any time after a Person has become an Acquiring
Person, (a) the Company shall consolidate with, or merge with and into, any
other Person, (b) any Person 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 merger, all or part of
the Common Shares shall be changed into or exchanged for stock or other
securities of any other Person (or the Company) or cash or any other property,
or (c) the Company shall sell or otherwise transfer (or one or more of its
Subsidiaries shall sell or otherwise transfer), in one or more transactions,
assets or earning power aggregating 50% or more of the assets or earning power
of the Company and its Subsidiaries (taken as a whole at the time that such
transaction occurs) to any other Person other than the Company or one or more of
its wholly-owned Subsidiaries, then, and in each such case, proper provision
shall be made so that (i) each holder of record of a Right (except as otherwise
provided in Section 11(a)(ii)) shall thereafter have the right to receive, (x)
Series A Preferred Shares upon the exercise of such Right at a price equal to
the then current Purchase Price multiplied by the number of one one-hundredths
of a Series A Preferred Share for which such Right is then exercisable in
accordance with the terms and conditions of this Agreement, or (y) such number
of Common Shares of such other Person (including the Company as successor
thereto or as the surviving corporation) as shall equal the result obtained by
(A) multiplying the then current Purchase Price by the number of one
one-hundredths of a Series A Preferred Share for which a Right is then
exercisable and dividing that product by (B) 50% of the then current per share
market price of the Common Shares of such other Person (determined pursuant to
Section 11(d) of this Agreement) on the date of consummation of such
consolidation, merger, sale or transfer; (ii) the issuer of such Common Shares
shall thereafter be liable for, and shall assume, by virtue of such
consolidation, merger, sale or transfer, all the obligations and duties of the
Company pursuant to this Agreement; (iii) the term “Company” shall thereafter be
deemed to refer to such issuer; and (iv) such issuer shall take such steps
(including, but not limited to, the reservation of a sufficient number of its
Common Shares in accordance with Section 9 of this Agreement) in connection with
such consummation as may be necessary to assure that the provisions of this
Agreement shall thereafter be applicable, as nearly as reasonably may be, in
relation to the Series A Preferred Shares or Common Shares of the Company
thereafter deliverable upon the exercise of the Rights, as the case may
be. The Company shall not consummate any such consolidation, merger,
sale or transfer unless, prior thereto, the Company and such issuer shall have
executed and delivered to the Rights Agent a supplemental agreement so
providing. The Company shall not enter into any transaction of the
kind referred to in this Section 13 if at the time of such transaction there are
any rights, warrants, instruments or securities outstanding or any agreements or
arrangements which, as a result of the consummation of such transaction, would
eliminate or substantially diminish the benefits intended to be afforded by the
Rights. The provisions of this Section 13 shall similarly apply to
successive mergers or consolidations or sales or other transfers.
19
Section
14. Fractional Rights and
Fractional Shares.
(a) The
Company shall not be required to issue fractions of Rights or, from and after
the Distribution Date and prior to the earlier to occur of the Redemption Date
and the Final Expiration Date, to distribute Right Certificates which evidence
fractional Rights. If the Company elects not to issue such fractional
Rights, from and after the Distribution Date and prior to the earlier to occur
of the Redemption Date and the Final Expiration Date, the Company shall pay, in
lieu of such fractional Rights, to the registered holders of the Rights with
regard to which such fractional Rights would otherwise be issuable, an amount in
cash equal to the amount that such fraction of a Right bears to the then 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 determined in the
manner set forth in Section 11(d)(i).
(b) Except as
otherwise provided in this subsection (b), the Company shall not be required to
issue fractions of Series A Preferred Shares upon exercise of the Rights or to
distribute certificates or make any entries in the records of the transfer agent
that evidence fractional Series A Preferred Shares. Fractions of
Series A 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 fractional Series A Preferred Shares represented by such
depositary receipts, and holders of such depository receipts may aggregate them
for the purpose of enabling such holders to become holders of record of whole
Series A Preferred Shares represented by such aggregated receipts. If
the Company elects not to issue such depository receipts, the Company shall pay,
in lieu of such fractional Series A Preferred Shares, to the registered holders
of Rights at the time such Rights are exercised as herein provided an amount in
cash equal to the amount that such fraction of a Series A Preferred Share bears
to the then current market value of one whole Series A Preferred
Share. For the purposes of this Section 14(b), the current market
value of a Series A Preferred Share shall be the closing price of a Series A
Preferred Share (as determined pursuant to Section 11(d)(ii) of this Agreement)
for the Trading Day immediately prior to the date on which such exercise of
Rights occurs.
20
(c) Notwithstanding
any other provision of this Agreement, the Company shall not be required to
issue fractions of Common Shares upon exercise of the Rights or to distribute
certificates or make any entries in its records or the records of its
transfer agent which evidence fractional Common Shares. The Company
shall pay, in lieu of fractional Common Shares, to the registered holders of
Rights at the time such Rights are exercised as herein provided an amount in
cash equal to the amount that such fraction of a Common Share bears to the then
current market value of one whole 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 on which such exercise of Rights
occurs
Section
15. Rights of
Action. All rights of action in respect of this Agreement,
excepting the rights of action vested in the Rights Agent pursuant to Section 18
of this Agreement, are vested in the respective registered holders of the Rights
(and, prior to the Distribution Date, the registered holders of the Common
Shares); and any registered holder of any Right (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 (or, prior to the Distribution Date, of the Common
Shares), may, in such holder’s own behalf and for such holder’s own benefit,
enforce, and may institute and maintain any suit, action or proceeding against
the Company to enforce, or otherwise act in respect of, such holder’s right to
exercise the Rights in the manner provided in this Agreement or in any Right
Certificate of which such holder is the registered holder. 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 will be evidenced by the balances indicated in
the records of the transfer agent for the Common Shares registered in the names
of the holders of the Common Shares (which Common Shares shall, as set forth in
Section 3, also be deemed to represent Rights whether or not such Common Shares
are in certificated or uncertificated form) and, in the case of certificated
Common Shares, the certificates for Common Shares registered in the names of the
holders of Common Shares shall also evidence the Rights associated with such
Common Shares, and each Right will be transferable only in connection with the
transfer of Common Shares.
(b) After the
Distribution Date, the Rights shall be recorded on the books of the Rights
Agent, in either certificated or uncertificated form, registered in the name of
the holder of each such Right. Any Right Certificates issued to
evidence Rights will be registered in the name of the registered holder of the
Rights evidenced thereby and will be 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.
21
(c) The
Company and the Rights Agent may deem and treat the person in whose name the
Rights or any Right Certificate (or, prior to the Distribution Date, the
associated Common Shares that represent such Rights) is registered as the
absolute owner thereof and of the Rights evidenced thereby (notwithstanding any
notations of ownership or writing on any certificate representing such Common
Shares or on any Right Certificate representing such Rights made by anyone other
than the Company, its transfer agent or the Rights Agent) for all purposes
whatsoever, and neither the Company, any transfer agent nor the
Rights Agent shall be affected by any notice to the contrary.
(d) Notwithstanding
any other provision of this Agreement, neither the Company nor the Rights Agent
shall have any liability to any holder of a Right or any 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, that the
Company shall use its reasonable efforts to have any such order, decree or
ruling lifted or otherwise overturned as soon as possible.
(e) Except as
otherwise provided in Section 14, each holder of a Right, by the acceptance of
the Right, expressly waives such holder’s right to receive any fractional Rights
or any fractional shares upon exercise of a Right.
Section
17. Right Certificate Holder Not
Deemed a Stockholder. No holder, as such, of any Rights or any
Right Certificate shall be entitled to vote, receive dividends or be deemed for
any purpose the holder of the Series A Preferred Shares, any Common Shares or
any other securities of the Company which may at any time be issuable on the
exercise of the Rights, nor shall anything contained herein or in any Right
Certificate be construed to confer upon the holder of any Right or any Right
Certificate, as such, any of the rights of a stockholder of the Company or any
right to vote for the election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold consent to any
corporate action, or to receive notice of meetings or other actions affecting
stockholders (except as provided in Section 25 of this Agreement), or to receive
dividends or subscription rights, or otherwise, until the Right or Rights,
whether held in certificated or uncertificated form, shall have been exercised
in accordance with the provisions of this Agreement and the holder thereof shall
have been recorded as the registered holder of the securities issued upon
exercise or exchange of the Rights on the books of the Company or the transfer
agent for such securities, as the case may be.
Section
18. Concerning the Rights
Agent. 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, and
to hold it harmless against, any loss, liability or expense incurred without
gross negligence, bad faith or willful misconduct on the part of the Rights
Agent, for anything done or omitted by the Rights Agent in connection with the
acceptance and administration of this Agreement, including the costs and
expenses of defending against any claim of liability in the
premises.
22
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
Series A Preferred Shares or Common Shares or any balance indicated in the
records of the transfer agent, 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, or
otherwise upon the advice of counsel as set forth in Section 20 of this
Agreement.
Section
19. Merger or Consolidation or
Change of Name of Rights Agent. Any corporation into which the
Rights Agent or any successor Rights Agent may be merged or with which it may be
consolidated, or any corporation resulting from any merger or consolidation to
which the Rights Agent or any successor Rights Agent shall be a party, or any
entity succeeding to the stock transfer or corporate trust powers 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 to this Agreement; provided that such
corporation would be eligible for appointment as a successor Rights Agent under
the provisions of Section 21. The purchase of all or substantially
all of the Rights Agent’s assets employed in the performance of transfer agent
activities shall be deemed a merger or consolidation for purposes of this
Section 19. In case at the time such successor Rights Agent shall
succeed to the agency created by this Agreement, any of the Right Certificates
shall have been countersigned but not delivered, any such successor Rights Agent
may adopt the countersignature of the predecessor Rights Agent and deliver such
Right Certificates so countersigned; and, in case at 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.
In case at
any time the name of the Rights Agent shall be changed and at such time any of
the Right Certificates shall have been countersigned but not delivered, the
Rights Agent may adopt the countersignature under its prior name and deliver
Right Certificates so countersigned; and, in case at 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 Rights and Right Certificates issued to
evidence Rights, by their acceptance thereof, shall be bound:
23
(a) The Rights
Agent may consult with legal counsel (who may be legal counsel for the Company),
and the opinion of such counsel shall be full and complete authorization and
protection to the Rights Agent as to any action taken or omitted by it in good
faith and in accordance with such opinion.
(b) Whenever
in the performance of its duties under this Agreement the Rights Agent shall
deem it necessary or desirable that any fact or matter be proved or established
by the Company prior to taking or suffering any action hereunder, such fact or
matter (unless other evidence in respect thereof be herein specifically
prescribed) may be deemed to be conclusively proved and established by a
certificate signed by any one of the Chairman of the Board, the Chief Executive
Officer, the President, any Vice President, the Treasurer or the Secretary of
the Company and delivered to the Rights Agent; and such certificate shall be
full authorization to the Rights Agent for any action taken or suffered in good
faith by it under the provisions of this Agreement in reliance upon such
certificate.
(c) The Rights
Agent shall be liable hereunder to the Company and any other Person only for its
own gross negligence, bad faith or willful misconduct.
(d) The Rights
Agent shall not be liable for or by reason of any of the statements of fact or
recitals contained in this Agreement or in the Right Certificates (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 of this Agreement (except the due
execution of this Agreement 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 void pursuant to Section 11(a)(ii) of this Agreement) or any
adjustment in the terms of the Rights (including any adjustment required under
the provisions of Sections 11 or 13 or the manner, method or amount thereof)
provided for in Section 3, 11, 13, 23 or 24 of this Agreement, 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 actual notice that such change or adjustment is required);
nor shall it by any act hereunder be deemed to make any representation or
warranty as to the authorization or reservation of any Series A Preferred Shares
to be issued pursuant to this Agreement or any Right Certificate or as to
whether any Series A 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.
(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 Chief Executive Officer, the President, any Vice President, the
Secretary or the Treasurer of the Company, and to apply to such officers for
advice or instructions in connection with its duties, and it shall not be liable
for any action taken or suffered by it in good faith in accordance with
instructions of any such officer or for any delay in acting while waiting for
those instructions.
24
(h) The Rights
Agent and any stockholder, director, officer or employee of the Rights Agent may
buy, sell or deal in any of the Rights or other securities of the Company or
become pecuniarily interested in any transaction in which the Company may be
interested, or contract with or lend money to the Company or otherwise act as
fully and freely as though it were not Rights Agent under this
Agreement. Nothing herein shall preclude the Rights Agent from acting
in any other capacity for the Company or for any other 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.
Section
21. Change of Rights
Agent. The Rights Agent or any successor Rights Agent may
resign and be discharged from its duties under this Agreement upon 30 days’
notice in writing mailed to the Company and to each transfer agent of the Common
Shares or Series A Preferred Shares by registered or certified mail, and to the
holders of record of the Rights and any Right Certificates issued to evidence
Rights by first-class mail. In the event the transfer agency
relationship in effect between the Company and the Rights Agent terminates, the
Rights Agent will be deemed to have resigned automatically and be discharged
from its duties under this Agreement as of the effective date of such
termination, and the Company shall be responsible for sending any required
notice. 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 or Series A Preferred Shares by registered or certified mail, and
to the holders of the Rights and any Right Certificates issued to evidence
Rights 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, whether
or not such Right is in certificated form (which holder shall, with such notice,
submit any Right Certificate held by such holder for inspection by the Company),
then the registered holder of any Right 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 or other entity organized and doing business under the laws of the
United States or of any state of the United States so long as such corporation
or other entity is authorized to do business as a banking institution in such
other state, in good standing, which is authorized under such laws to exercise
corporate trust or stock transfer powers and is subject to supervision or
examination by federal or state authority and which has at the time of its
appointment as Rights Agent a combined capital and surplus, along with its
Affiliates, 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 or Series
A Preferred Shares, and mail a notice thereof in writing to the registered
holders of the Rights and any Right Certificates issued to evidence
Rights. 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.
25
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 approved
by the Board of Directors of the Company to reflect any adjustment or change in
the Purchase Price 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.
Section
23. Redemption.
(a) The Board
of Directors of the Company may, at its option, at any time prior to 10 days
after such time that any Person becomes an Acquiring Person, redeem all but not
less than all the then outstanding Rights that are not deemed to be void as
provided in Section 11(a)(ii) at a redemption price of $0.001 per Right,
appropriately adjusted to reflect any stock split, stock dividend or similar
transaction occurring after the date of this Agreement (such redemption price
being hereinafter referred to as the “Redemption
Price”). The redemption of the Rights by the Board of
Directors of the Company may be made effective at such time, on such basis and
with such conditions as the Board of Directors of the Company, in its sole
discretion, may establish.
(b) Immediately
upon the action of the Board of Directors of the Company ordering the redemption
of the Rights pursuant to paragraph (a) of this Section 23, and without any
further action and without any notice, the right to exercise the Rights will
terminate and the only right thereafter of the holders of Rights shall be to
receive the Redemption Price. The Company shall promptly give public
notice of any such redemption; provided, however, that the
failure to give, or any defect in, any such notice shall not affect the validity
of such redemption. Within 10 days after such action of the Board of
Directors of the Company ordering the redemption of the Rights, the Company
shall furnish a notice of redemption to all the holders of the then outstanding
Rights 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 at any time in any manner other
than that specifically set forth in this Section 23 or in Section 24 of this
Agreement, and other than in connection with the purchase of Common Shares prior
to the Distribution Date.
26
Section
24. Exchange.
(a) The Board
of Directors of the Company may, at its option, 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 and remain
void pursuant to the provisions of Section 11(a)(ii) of this Agreement) for
Common Shares at an exchange ratio of one Common Share per Right, appropriately
adjusted to reflect any adjustment in the number of Rights pursuant to Section
11(i) (such exchange ratio being hereinafter referred to as the “Exchange
Ratio”). Notwithstanding the foregoing, the Board of Directors
of the Company shall not be empowered to effect such exchange at any time after
any Person (other than the Company, any Subsidiary of the Company, any employee
benefit or stock ownership plan of the Company or any such Subsidiary, or any
entity holding Common Shares for or pursuant to the terms of any such plan),
together with all Affiliates and Associates of such Person, becomes the
Beneficial Owner of 50% or more of the Common Shares then
outstanding.
(b) Immediately
upon the action of the Board of Directors of the Company effecting the exchange
of any Rights pursuant to paragraph (a) of this Section 24 and without any
further action and 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 and remain void pursuant
to the provisions of Section 11(a)(ii) of this Agreement) held by each holder of
Rights.
(c) In the
event that there shall not be sufficient Common Shares available for issuance to
permit any exchange of Rights as contemplated in accordance with this Section
24, the Company shall make all reasonable efforts to take all such action as may
be necessary to authorize additional Common Shares for issuance upon exchange of
the Rights. In the event the Company shall, after good faith effort,
be unable to effect all such actions, the Company shall substitute, for each
Common Share that would otherwise be issuable upon exchange of a Right, a number
of Series A Preferred Shares or fraction thereof such that the then current per
share market price of one Series A Preferred Share multiplied by such number or
fraction is equal to the then current per share market price of one Common Share
as of the date of issuance of such Series A Preferred Share or fraction
thereof.
(d) Any
fractions of Common Shares issuable pursuant to this Section 24 shall be handled
in the manner provided for in Section 14(c).
27
Section
25. Notice of Certain
Events.
(a) In case
the Company shall, at any time after the Distribution Date, propose (i) to pay
any dividend payable in stock of any class to the holders of the Series A
Preferred Shares or to make any other distribution to the holders of the Series
A Preferred Shares (other than a regular quarterly cash dividend), (ii) to offer
to the holders of the Series A Preferred Shares rights or warrants to subscribe
for or to purchase any additional Series A Preferred Shares or shares of stock
of any class or any other securities, rights or options, (iii) to effect any
reclassification of the Series A Preferred Shares (other than a reclassification
involving only the subdivision of outstanding Series A Preferred Shares), (iv)
to effect any merger, consolidation or other combination into or with, or to
effect any sale or other transfer (or to permit one or more of its Subsidiaries
to effect any sale or other transfer), in one or more transactions, of 50% or
more of the assets, cash flow or earning power of the Company and its
Subsidiaries (taken as a whole at the time of such transaction) to, any other
Person, (v) to effect the liquidation, dissolution or winding up of the Company,
or (vi) to declare or pay any dividend on the Common Shares payable in Common
Shares or to effect a subdivision, combination or consolidation of the Common
Shares (by reclassification or otherwise than by payment of dividends in Common
Shares), then, in each such case, the Company shall give to each holder of
record of a Right, in accordance with Section 26 of this Agreement, 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, sale, transfer, liquidation,
dissolution, or winding up is to take place and the date of participation
therein by the holders of the Common Shares and/or Series A 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 10 days prior to the
record date for determining holders of the Series A Preferred Shares for
purposes of such action, and, in the case of any such other action, at least 10
days prior to the date of the taking of such proposed action or the date of
participation therein by the holders of the Common Shares and/or Series A
Preferred Shares, whichever shall be the earlier.
(b) In case an
event of the type set forth in Section 11(a)(ii) of this Agreement shall occur,
then the Company shall, as soon as practicable thereafter, give to each holder
of record of a Right, in accordance with Section 26 of this Agreement, a notice
of the occurrence of such event, which notice shall describe such event and the
consequences of such event to holders of Rights under Section 11(a)(ii) of this
Agreement.
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 Rights and any Right Certificates issued to evidence
Rights 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:
3D Systems
Corporation
▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention: Vice
President, General Counsel and Secretary
28
Subject to
the provisions of Section 21 of this Agreement, any notice or demand authorized
by this Agreement to be given or made by the Company or by the holder of any
Rights and any Right Certificates issued to evidence Rights to or on the Rights
Agent shall be sufficiently given or made if sent by overnight delivery service
or first-class mail, postage prepaid, addressed (until another address is filed
in writing with the Company) as follows:
Computershare
Trust Company, N.A.
▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
Client Services
Notices or
demands authorized by this Agreement to be given or made by the Company or the
Rights Agent to the holder of any Rights and any Right Certificates issued to
evidence Rights shall be sufficiently given or made if sent by overnight
delivery service or 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. The Company may from time to time supplement or
amend any provision of this Agreement as the Board of Directors may deem
necessary or desirable without the approval of any holders of certificates
representing Common Shares, provided that such supplement or amendment does not
adversely affect the rights, duties or obligations of the Rights Agent under
this Agreement, and any such supplement or amendment is to be evidenced by a
writing signed by the Company and the Rights Agent. From and after
such time as any Person becomes an Acquiring Person, the Company and the Rights
Agent shall, if the Board of Directors so directs, supplement or amend this
Agreement without the approval of any holder of Rights and any Right
Certificates issued to evidence Rights in order (i) to cure any ambiguity, (ii)
to correct or supplement any provision contained herein which may be defective
or inconsistent with any other provisions herein, (iii) to shorten or lengthen
any time period hereunder, or (iv) to change or supplement the provisions of
this Agreement in any manner which the Board of Directors may deem necessary or
desirable and which shall not adversely affect the interests of the holders of
Rights and any Right Certificates issued to evidence Rights (other than an
Acquiring Person or any Affiliate or Associate of an Acquiring Person); provided, however, that from
and after such time as any Person becomes an Acquiring Person, this Agreement
may not be supplemented or amended to lengthen, pursuant to clause (iii) of this
sentence, (A) a time period relating to when the Rights may be redeemed at such
time as the Rights are not then redeemable or (B) any other time period unless
such lengthening is for the purpose of protecting, enhancing or clarifying the
rights of, and the benefits to, the holders of Rights (other than an Acquiring
Person or any Affiliate or Associate of an Acquiring Person). Without limiting
the foregoing, the Company may at any time prior to such time as any Person
becomes an Acquiring Person amend this Agreement to lower the thresholds set
forth in Section 1(a) and 3(a) of this Agreement to not less than 10% (the
“Reduced
Threshold”); provided, however,
that no Person who beneficially owns a number of Common Shares equal to or
greater than the Reduced Threshold shall become an Acquiring Person unless such
Person shall, after the public announcement of the Reduced Threshold, increase
its beneficial ownership of the then outstanding Common Shares (other than as a
result of an acquisition of Common Shares by the Company) to an amount equal to
or greater than the greater of (x) the Reduced Threshold or (y) the sum of (i)
the lowest beneficial ownership of such Person as a percentage of the
outstanding Common Shares as of any date on or after the date of the public
announcement of such Reduced Threshold plus (ii) 0.001%.
29
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. Determinations and Actions
by the Board of Directors, etc. For all purposes of this
Agreement, any calculation of the number of Common Shares outstanding at any
particular time, including for purposes of determining the particular percentage
of such outstanding Common Shares of which any Person is the Beneficial Owner,
shall be made in accordance with the terms of this Agreement and the last
sentence of Rule 13d-3(d)(1)(i) of the General Rules and Regulations under the
Exchange Act. The Board of Directors of the Company shall have the
exclusive power, authority and discretion to administer this Agreement and to
exercise all rights and powers specifically granted to such Board of Directors
or to the Company, or as may be necessary or advisable in the administration of
this Agreement, including, without limitation, the right and power to (i)
interpret the provisions of this Agreement, and (ii) make all determinations
deemed necessary or advisable for the administration of this Agreement
(including, but not limited to, a determination to redeem or not redeem the
Rights, to amend the Agreement or to find or to announce publicly that any
Person has become an Acquiring Person). All such actions,
calculations, interpretations and determinations (including, for purposes of
clauses (i) and (iii) below, all omissions with respect to the foregoing) which
are done or made by the Board of Directors of the Company or the Company (i)
shall be within the discretion of the Board of Directors, (ii) shall be final,
conclusive and binding on the Company, the Rights Agent, the holders of the
Rights and any Right Certificates issued to evidence Rights and all other
parties, and (iii) shall not subject the Board of Directors of the Company to
any liability to the holders of the Rights and Right Certificates.
Section
30. Benefits of this
Agreement. Nothing in this Agreement shall be construed to
give to any Person other than the Company, the Rights Agent and the registered
holders of the Rights and any Right Certificates issued to evidence Rights (and,
prior to the Distribution Date, the Common Shares) any legal or equitable right,
remedy or claim under this Agreement; but this Agreement shall be for the sole
and exclusive benefit of the Company, the Rights Agent and the registered
holders of the Rights and any Right Certificates issued to evidence Rights (and,
prior to the Distribution Date, the Common Shares).
Section
31. Severability. If
any term, provision, covenant or restriction of this Agreement is held by a
court of competent jurisdiction or other authority to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
Section
32. Governing
Law. This Agreement and each Right and any Right Certificate
issued to evidence Rights issued hereunder shall be deemed to be a contract made
under the laws of the State of Delaware and for all purposes shall be governed
by and construed in accordance with the laws of such state applicable to
contracts to be made and performed entirely within such state.
30
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 of this Agreement.
Section
35. Force
Majeure. Notwithstanding anything to the contrary contained
herein, the Rights Agent shall not be liable for any delays or failures in
performance resulting from acts beyond its reasonable control including, without
limitation, acts of God, terrorist acts, shortage of supply, breakdowns or
malfunctions, interruptions or malfunction of computer facilities, or loss of
data due to power failures or mechanical difficulties with information storage
or retrieval systems, labor difficulties, war, or civil unrest.
31
IN WITNESS
WHEREOF, the parties to this Agreement have caused this Agreement to be duly
executed and attested, all as of the day and year first above
written.
3D SYSTEMS CORPORATION
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
▇▇.
Name: ▇▇▇▇▇▇ ▇.
▇▇▇▇▇, ▇▇.
Title: Vice President, General Counsel and
Secretary
COMPUTERSHARE TRUST COMPANY,
N.A.
By /s/ ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Manager,
Contract Administration
32
Exhibit A
CERTIFICATE
OF DESIGNATIONS OF
RIGHTS,
PREFERENCES AND PRIVILEGES OF
SERIES
A PREFERRED STOCK
OF
3D
SYSTEMS CORPORATION
Pursuant
to Section 151 of the Delaware General Corporation law
The
undersigned hereby certifies that the following resolution has been adopted by
the Board of Directors of 3D Systems Corporation, a Delaware corporation (the
“Corporation”) as required by Section 151 of the Delaware General Corporation
Law at a meeting duly called and held on December 9, 2008;
RESOLVED
that pursuant to the authority granted to and vested in the Board of Directors
of the Corporation (hereinafter called the “Board of Directors”) in accordance
with the provisions of the Certificate of Incorporation, as amended, of the
Corporation, the Board of Directors hereby creates a new series of the
previously authorized Preferred Stock, par value $.001 per share (the “Preferred
Stock”) of the Corporation, and hereby states the designation and number of
shares, and fixes the relative rights, preferences and limitations thereof as
follows:
Section
1. Designation and
Amount. The shares of such series shall be designated as
“Series A Preferred Stock” (the “Series A Preferred Stock”) and the number of
shares constituting the Series A Preferred Stock shall be one million
(1,000,000) shares
of Series A Preferred Stock each of which shall have a par value of $0.001 per
share. Such number of shares may be increased or decreased by
resolution of the Board of Directors; provided that no
decrease shall reduce the number of shares of Series A Preferred Stock to a
number less than the number of shares then outstanding plus the number of shares
reserved for issuance upon the exercise of outstanding options, rights or
warrants or upon the conversion of any outstanding securities issued by the
Corporation that are by their terms convertible into Series A Preferred
Stock.
Section
2. Dividends and
Distributions.
(a) Subject
to the rights of the holders of any shares of any series of Preferred Stock or
other capital stock of the Corporation ranking senior in right of payment to the
Series A Preferred Stock with respect to dividends (such securities being
hereafter referred to as Senior Securities”), the holders of record of shares of
Series A Preferred Stock outstanding from time to time, shall be entitled to
receive cumulative preferential dividends, when, as and if declared by the Board
of Directors out of funds legally available for the purpose in preference to the
holders of Common Stock, par value $0.001 per share (the “Common Stock”), of the
Corporation and any other class or series of capital stock ranking junior in
right of payment of dividends to the Series A Preferred Stock (such securities
being hereafter referred to as “Junior Stock”) in the amounts set forth
below.
A-1
(b) At
any time that any Shares of Series A Preferred Stock are issued and outstanding,
no dividend or distribution on the Common Stock or any other Junior Stock shall
be declared, paid or set aside for payment on the Common Stock or such other
class or series of Junior Stock unless amounts sufficient to effect such
dividend or distribution to the holders of Common Stock and such other class or
series of Junior Stock are available to make such dividend or distribution after
giving effect to the amounts required to be paid or distributed to the holders
of Series A Preferred Stock. The Corporation shall declare each
dividend or distribution to be made to the holders of record of Series A
Preferred Stock in preference to and immediately prior to the time that it
declares any similar dividend or distribution on the Common Stock or any other
class or series of Junior Stock.
(c) Dividends
on each outstanding share of Series A Preferred Stock shall begin to accrue on a
cumulative basis from the date on which such share shall become issued and
outstanding and shall continue to accrue on a cumulative basis until the close
of business on the day before such share of Series A Preferred Stock ceases to
be outstanding.
(d) Subject
to the rights of the holders of any Senior Securities, before the Corporation
shall declare or pay any dividend or make any distribution on the Common Stock
or any other class or series of Junior Stock payable in assets, securities or
other forms of non-cash consideration (other than dividends or distributions
paid ratably to all holders of shares of Common Stock solely in shares of Common
Stock), the Corporation shall declare, set aside and pay on each whole
outstanding share of record of Series A Preferred Stock, a dividend or
distribution in like kind equal to the Formula Number (as defined below) then in
effect multiplied by the per share amount of such dividend or distribution to be
declared and distributed on each share of the Common Stock or other Junior
Stock. As used herein and subject to adjustment as provided herein,
the “Formula Number” shall be 100; provided, however, that if at
any time after December 22, 2008, the Corporation shall (i) declare or pay any
dividend or make any distribution on the Common Stock, payable solely in shares
of Common Stock, (ii) subdivide (by a stock split or otherwise), the outstanding
shares of Common Stock into a larger number of shares of Common Stock, or (iii)
combine (by a reverse stock split or otherwise) the outstanding shares of Common
Stock into a smaller number of shares of Common Stock, then in each such case
the Formula Number in effect immediately prior to such event shall be adjusted
to a number determined by multiplying the Formula Number then in effect by a
fraction, the numerator of which shall be the number of shares of Common Stock
outstanding immediately after such event and the denominator of which shall be
the number of shares of Common Stock that were outstanding immediately prior to
such event (and rounding the result to the nearest whole number); provided further,
that, if at any time after December 22, 2008, the Corporation shall issue any
shares of its capital stock in a merger, reclassification or change of the
outstanding shares of Common Stock, then in each such event the Formula Number
shall be appropriately adjusted to reflect the effect of such merger,
reclassification or change so that each share or Series A Preferred Stock then
outstanding shall continue to be the economic equivalent of the number of shares
of Common Stock issued and outstanding prior to such merger, reclassification or
change after adjusting the Formula Number.
(e) Subject
to the rights of the holders of any Senior Securities, before the Corporation
shall declare or pay any dividend or make any distribution on the Common Stock
or any other class or series of Junior Stock payable in cash, the Corporation
shall declare, set aside and pay to each holder of record of each whole
outstanding share of Series A Preferred Stock:
A-2
(i) a
dividend or distribution in an amount in cash (rounded to the nearest cent)
equal to the Formula Number then in effect multiplied by the per share amount of
such dividend or distribution to be declared and distributed on each share of
the Common Stock or other Junior Stock; and
(ii) a
cash dividend on the first day of January, April, July and October in each year
(each such date being referred to herein as a “Quarterly Dividend Payment
Date”), commencing on the first Quarterly Dividend Payment Date after the date
on which such share of Series A Preferred Stock was first issued and became
outstanding, in an amount per share (rounded to the nearest cent but not less
than zero) equal to $1.00 per whole share of Series A Preferred Stock issued and
outstanding less the per share amount of all cash dividends declared pursuant to
clause (i) of this sentence before giving effect to the application of the
Formula Number since the immediately preceding Quarterly Dividend Payment Date
or, with respect to the first Quarterly Dividend Payment Date, since the date
that any then outstanding shares of Series A Preferred Stock authorized pursuant
to this Certificate of Designations were first issued and became
outstanding.
(f) The
Board of Directors may fix a record date for the determination of holders of
record 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 60 days prior nor less than 10 days prior to the date fixed for the payment
thereof.
Section
3. Voting
Rights. The holders of record of outstanding shares of Series
A Preferred Stock shall have the following voting rights:
(a) Each
holder of record of Series A Preferred Stock shall be entitled to a number of
votes equal to the Formula Number then in effect, for each share of Series A
Preferred Stock held of record on each matter on which holders of the Common
Stock or stockholders generally are entitled to vote, multiplied by the maximum
number of votes per share which any holder of the Common Stock or stockholders
generally then have with respect to such matter (assuming any holding period or
other requirement to vote a greater number of shares is satisfied).
(b) Except
as otherwise provided herein, in any other Certificate of Designations creating
a series of Preferred Stock or any similar stock, or by law, the holders of
shares of Series A Preferred Stock and the holders of shares of Common Stock and
any other capital stock of the Corporation having general voting rights shall
vote together as one class on all matters submitted to a vote of stockholders of
the Corporation.
(c) Except
as set forth herein, or as otherwise provided by law, holders of Series A
Preferred Stock shall have no special voting rights and their consent shall not
be required (except to the extent they are entitled to vote with holders of
Common Stock as set forth herein) for taking any corporate action.
Section
4. Certain
Restrictions.
(a) Whenever
any dividends or distributions required to be made to the holders of Series A
Preferred Stock are in arrears or the Corporation shall be in default in payment
thereof, thereafter and until all accrued and unpaid amounts, whether or not
declared, on shares of Series A Preferred Stock outstanding shall have been paid
or set aside for payment in full, the Corporation shall not:
A-3
(i) declare
or pay dividends, or make any other distributions on or redeem or purchase or
otherwise acquire for consideration any shares of Common Stock or other shares
of stock ranking junior (either as to dividends or upon liquidation, dissolution
or winding up) to the Series A Preferred Stock, except for any shares of Common
Stock that the Corporation has the right or obligation to acquire pursuant to
any stock-based compensation plan then in effect;
(ii) declare
or pay dividends, or make any other distributions, on the 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 for consideration shares of any stock ranking
junior or on a parity (either as to dividends or upon liquidation, dissolution
or winding up) to or with the Series A Preferred Stock, provided that the
Corporation may at any time redeem, purchase or otherwise acquire shares of any
such junior or parity 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, except for any
shares of Common Stock that the Corporation has the right or obligation to
acquire pursuant to any stock-based compensation plan then in effect;
or
(iv) redeem
or purchase or otherwise acquire for consideration shares of Series A Preferred
Stock, or any shares 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 paragraph (a) of this Section 4, 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. All such shares
shall upon their cancellation become authorized but unissued shares of Preferred
Stock and may be reissued as part of a new series of Preferred Stock or any
increase in the authorized number of shares of Series A Preferred Stock subject
to the conditions and restrictions on issuance set forth herein, in the
Certificate of Incorporation, as amended or restated from time to time,, or in
any other Certificate of Designations creating a series of Preferred Stock or
any similar stock or as otherwise required by law.
A-4
Section
6. Liquidation, Dissolution or
Winding Up. Upon any voluntary or involuntary 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 an amount equal to the accrued and unpaid dividends and distributions
thereon, whether or not declared, to the date of such payment, plus an amount
equal to the greater of (i) $0.01 per whole share, or (ii) an aggregate amount
per share equal to the Formula Number then in effect times the aggregate amount
to be distributed per share to holders of Common Stock, or (b) to the holders of
shares of stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Preferred Stock, unless
simultaneously therewith distributions are made ratably on the Series A
Preferred Stock and all such parity stock in proportion to the total amounts to
which the holders of Series A Preferred Stock shares are entitled under clause
(a)(i) of this sentence and to which the holders of such parity shares are
entitled in each case upon such liquidation, dissolution or winding
up.
Section
7. Consolidation, Merger,
etc. If the Corporation shall enter into any consolidation,
merger, combination or other transaction in which the shares of Common Stock are
exchanged for or changed into other stock or securities, cash and/or any other
property, then in any such case each share of Series A Preferred Stock shall at
the same time be similarly exchanged or changed into an amount per share equal
to the Formula Number then in effect multiplied by 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 that both this Section 7 and Section 2 appear
to apply to a transaction, this Section 7 shall control.
Section
8. Effective Time of
Adjustments.
(a) Adjustments
to the Series A Preferred Stock required by the provisions hereof shall be
effective as of the time at which the event requiring such adjustments
occurs.
(b) The
Corporation shall give prompt written notice to each holder of a share of Series
A Preferred Stock of the effect on any such shares of any adjustment to the
dividend rights or rights upon liquidation, dissolution or winding up of the
Corporation required by the provisions hereof. Notwithstanding the
foregoing sentence, the failure of the Corporation to give such notice shall not
affect the validity of or the force or effect of or the requirement for such
adjustment.
Section
9. No
Redemption. The shares of Series A Preferred Stock shall not
be redeemable.
Section
10. Rank. Unless
otherwise provided in the Certificate of Incorporation, as amended or restated
from time to time, or a Certificate of Designations relating to the subsequent
series of Preferred Stock of the Corporation, the Series A Preferred Stock shall
rank, with respect to the payment of dividends and the distribution of assets,
junior to all series of any other class of the Corporation’s Preferred
Stock.
A-5
Section
11. Fractional Shares.
The Series A Preferred Stock shall be issuable upon exercise of the Rights
issued pursuant to that certain Rights Agreement dated as of December 9, 2008
entered into between the Corporation and the Rights Agent identified therein in
whole shares. Except as otherwise provided in the Rights Agreement, no holder of
any fraction of a share of Series A Preferred Stock shall be entitled to receive
dividends, exercise voting rights, participate in distributions or to have the
benefit of any of the other rights of holders of Series A Preferred
Stock. Under the terms of the Rights Agreement, in lieu of fractional
shares, the Corporation, prior to the first issuance of any share of Series A
Preferred Stock, may elect (1) to make a cash payment as provided in the Rights
Agreement for fractions of a share or (2) to issue depository receipts
evidencing authorized fractions of a share of Series A Preferred Stock pursuant
to an appropriate agreement between the Corporation and a depository selected by
the Corporation; provided that such agreement shall provide that the holders of
record of such depository receipts shall have the rights, privileges and
preferences to which they are entitled as holders of record of the Series A
Preferred Stock.
Section
12. Amendment. The
Certificate of Incorporation, as amended or restated from time to time, of the
Corporation 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
together as a single class.
IN WITNESS
WHEREOF, this Certificate of Designations is executed on behalf of the
Corporation this 9th day of December,
2008.
3D SYSTEMS CORPORATION
By: ______________________________
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇, ▇▇.
Title: Vice
President, General Counsel & Secretary
A-6
Exhibit
B
Form of Right Certificate
Certificate
No.
R-
Rights
NOT
EXERCISABLE AFTER THE EARLIER OF (I) DECEMBER 22, 2011 OR SUCH LATER DATE AS
DETERMINED BY THE COMPANY’S BOARD, OR (II) DECEMBER 22, 2018 OR EARLIER IF
REDEMPTION OR EXCHANGE OCCURS. THE RIGHTS ARE SUBJECT TO REDEMPTION
AT $0.001 PER RIGHT AND TO EXCHANGE ON THE TERMS SET FORTH IN THE
AGREEMENT.
Right
Certificate
3D SYSTEMS
CORPORATION
This
certifies that ,
or registered assigns, is the registered owner of the number of Rights set forth
above, each of which entitles the owner thereof, subject to the terms,
provisions and conditions of the Agreement dated as of December 9, 2008 (the
“Agreement”) between 3D Systems Corporation, a Delaware corporation (the
“Company”), and Computershare Trust Company, N.A., a federally chartered trust
company (the “Rights Agent”), to purchase from the Company at any time after the
Distribution Date (as such term is defined in the Agreement) and prior to
5:00 P.M., Eastern time, on the earlier to occur of (i) December 22, 2011
(or such later date as approved by the independent members of the Board of
Directors of the Company (so long as such determination is made prior to
December 22, 2011)), or (ii) December 22, 2018 at the principal
office of the Rights Agent, or at the office of its successor as Rights Agent,
one one-hundredth of a fully paid non-assessable share of Series A
Preferred Stock, par value $.001 per share, of the Company (the “Series A
Preferred Shares”), at a purchase price of $55.00 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 duly
executed. The number of Rights evidenced by this Right Certificate
(and the number of one one-hundredths of a Series A Preferred Share which may be
purchased upon exercise hereof) set forth above, and the Purchase Price set
forth above, are the number and Purchase Price as of the date of issue of this
Right Certificate, based on the Series A Preferred Shares as constituted at such
date. As provided in the Agreement, the Purchase Price and the number
of one one-hundredths of a Series A Preferred Share 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
Agreement, which terms, provisions and conditions are hereby incorporated herein
by reference and made a part hereof and to which 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 Agreement are on file at the
principal executive offices of the Company and the offices of the Rights
Agent.
B-1
This Right
Certificate, with or without other Right Certificates, upon surrender at the
principal office of the Rights Agent, may be exchanged for another Right
Certificate or Right Certificates of like tenor and date evidencing Rights
entitling the holder to purchase a like aggregate number of Series A Preferred
Shares as the Rights evidenced by the Right Certificate or Right Certificates
surrendered shall have entitled such holder to purchase. If this
Right Certificate shall be exercised in part, the holder shall be entitled to
receive upon surrender hereof another Right Certificate or Right Certificates
for the number of whole Rights not exercised.
Subject to
the provisions of the Agreement, the Rights evidenced by this Right Certificate
(i) may be redeemed by the Company at a redemption price of $.001 per Right or
(ii) may be exchanged in whole or in part for Series A Preferred Shares or
shares of the Company’s Common Stock, par value $.001 per share.
No
fractional Series A Preferred Shares will be issued upon the exercise of any
Right or Rights evidenced hereby (other than fractions which may, at the
election of the Company, be evidenced by depositary receipts as set forth in
Section 14(b) of the Rights Agreement), but, in lieu thereof, a cash payment
will be made, as provided in the 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 Series A 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 Agreement or herein be
construed to confer upon the holder hereof, as such, any of the rights of a
stockholder of the Company or any right to vote for the election of directors or
upon any matter submitted to stockholders at any meeting thereof, or to give or
withhold consent to any corporate action, or to receive notice of meetings or
other actions affecting stockholders (except as provided in the Agreement), or
to receive dividends or subscription rights, or otherwise, until the Right or
Rights evidenced by this Right Certificate shall have been exercised as provided
in the Agreement and the holder of the securities issued as a result thereof
shall have become the holder of record of such securities.
This Right
Certificate shall not be valid or obligatory for any purpose until it shall have
been countersigned by the Rights Agent.
B-2
WITNESS
the facsimile signature of the proper officers of the Company and its corporate
seal.
Dated as
of ,
20__.
3D SYSTEMS CORPORATION
By:
Name:
Title:
Countersigned:
COMPUTERSHARE
TRUST COMPANY, N.A.
By
Name:
Title:
B-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:
___________________
Signature
Signature
Guaranteed:
Signatures
must be guaranteed by an eligible guarantor institution which is a participant
in the Securities Transfer Agents Medallion Program (“STAMP”), the New York
Stock Exchange, Inc. Medallion Signature Program (“MSP”), or the Stock Exchanges
Medallion Program (“SEMP”), pursuant to Rule 17Ad-15 promulgated under the
Securities Exchange Act of 1934, as amended. Guarantees by a notary
public are not acceptable.
The
undersigned hereby certifies that the Rights evidenced by this Right Certificate
are not beneficially owned by an Acquiring Person or an Affiliate or Associate
thereof (as defined in the Agreement).
Signature
B-4
Form of
Reverse Side of Right Certificate – continued
FORM OF ELECTION TO
PURCHASE
(To be
executed if holder desires to exercise
Rights
represented by the Right Certificate.)
To: 3D
SYSTEMS CORPORATION
The
undersigned hereby irrevocably elects to exercise
Rights represented by this Right Certificate to purchase the Series A Preferred
Shares issuable upon the exercise of such Rights and requests that certificates
for such Series A Preferred Shares be issued in the name of:
Please
insert social security
or other
identifying number
(Please print name and address)
If such
number of Rights shall not be all the Rights evidenced by this Right
Certificate, a new Right Certificate for the balance remaining of such Rights
shall be registered in the name of and delivered to:
Please
insert social security
or other
identifying number
(Please
print name and address)
B-5
Dated:
Signature
Signature
Guaranteed:
Signatures
must be guaranteed by an eligible guarantor institution which is a participant
in the Securities Transfer Agents Medallion Program (“STAMP”), the New York
Stock Exchange, Inc. Medallion Signature Program (“MSP”), or the Stock Exchanges
Medallion Program (“SEMP”), pursuant to Rule 17Ad-15 promulgated under the
Securities Exchange Act of 1934, as amended. Guarantees by a notary
public are not acceptable.
The
undersigned hereby certifies that the Rights evidenced by this Right Certificate
are not beneficially owned by an Acquiring Person or an Affiliate or Associate
thereof (as defined in the Agreement).
Signature
NOTICE
The
signature in the Form of Assignment or Form of Election to Purchase, as the case
may be, must conform to the name as written upon the face of this Right
Certificate in every particular, without alteration or enlargement or any change
whatsoever.
In the
event the certification set forth above in the Form of Assignment or the Form of
Election to Purchase, as the case may be, is not completed, the Company and the
Rights Agent will deem the beneficial owner of the Rights evidenced by this
Right Certificate to be an Acquiring Person or an Affiliate or Associate thereof
(as defined in the Agreement) and such Assignment or Election to Purchase will
not be honored.
B-6
Exhibit
C
3D SYSTEMS
CORPORATION
SUMMARY OF
RIGHTS TO PURCHASE
SERIES A
PREFERRED SHARES
On
December 9, 2008, our Board of Directors adopted a Rights Agreement that is
designed to benefit our stockholders and protect them from coercive or otherwise
unfair takeover tactics that would not fully reflect the value of their equity
interest in the Company. Under the terms of this Rights Agreement,
the Board declared a distribution in the nature of a dividend of one preferred
share purchase right (a “Right”) for each outstanding share of our Common Stock,
$.001 per share.
While our
Board terminated a previous rights plan in 2004, we believe that it is
appropriate for our company to adopt a similar rights plan at this time in light
of the severe turmoil that exists in the financial and securities markets and
the resultant reduction over the course of 2008 in the Company’s open market
value. We believe that the current market value of the Company’s
Common Stock does not accurately reflect the underlying value of the Company’s
technology platforms or the prospects of its recently developed
products. Consequently, we believe that the Rights Agreement that we
have approved should aid in its endeavors to realize full value of the
stockholders’ interests in the event of an acquisition transaction, which we do
not currently expect to occur.
The
distribution provided for by the Rights Agreement is payable on December 22,
2008 to the stockholders of record of our Common Stock at the close of business
on December 22, 2008 (the “Record Date.”) Based on the 22,365,537
shares of Common Stock currently outstanding, we expect this dividend to result
in the distribution of 22,365,537 Rights on the Record Date. We do
not expect any material change in the outstanding number of shares of Common
Stock to occur before the Record Date, and we have no current plans to issue any
material number of shares of Common Stock.
To provide
for the distribution of this dividend, the Board approved the creation of a
series of preferred stock consisting of one million shares of Series A Preferred
Stock from our five million authorized and unissued shares of preferred stock,
which have a par value of $.001 per share. Each Right issued on the
Record Date will entitle its holder to purchase, in the event that the Right
becomes exercisable, one one-hundredth of a share of Series A Preferred
Stock for a price of $55.00 per Right.
In general
terms, the Rights Agreement would impose a significant penalty upon any
Acquiring Person that acquires 15% or more of our outstanding Common Stock
(including, for this purpose, Common Stock involved in derivative transactions
and securities) without the approval of our Board. While we do not
currently expect any such event to occur, the Rights Agreement should not
interfere with any merger or other business combination approved by our Board
and it would not include Exempt Persons (as defined below) who remain passive
investors.
C-1
For those
interested in the specific terms of the Rights Agreement as entered between our
Company and Computershare Trust Company, N.A., as the Rights Agent, on December
9, 2008, we provide the following summary description. Please note,
however, that this description is only a summary of the terms of the Rights
Agreement, the Rights that will be issued under the Rights Agreement and the
Series A Preferred Stock, is not complete, and should be read together with the
entire Rights Agreement and the Certificate of Designation of the Series A
Preferred Stock, which we have filed with the Securities and Exchange Commission
as exhibits to a Current Report on Form 8-K dated December 9, 2008 and posted on
our website. A copy of the agreement is available free of charge from
our Company.
The Rights
Our Board
authorized the issuance of one Right for each outstanding share of Common Stock
issued and outstanding on the Record Date. Unless and until the
Rights become exercisable, they will trade as part of, and will be inseparable
from, our Common Stock. Currently, the Rights will be evidenced only
by the outstanding shares of Common Stock held of record by our stockholders on
the Record Date. An additional Right will be issued as part of, and
will be inseparable from, each additional share of our Common Stock that we
issue after the Record Date until the occurrence of any Distribution Date
described below.
Exercisability
Outstanding
Rights will not become exercisable until
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10
days after the public announcement that a person or group has become an
“Acquiring Person” by obtaining beneficial ownership of 15% or more of our
outstanding Common Stock, or, if
earlier,
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10
business days (or a later date determined by our Board before any person
or group becomes an Acquiring Person) after a person or group begins a
tender or exchange offer which, if completed, would result in that person
or group becoming an Acquiring
Person.
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The Rights
Agreement defines the term “Acquiring Person” generally to
mean any person who, together with all Affiliates and Associates of such person,
is the beneficial owner of 15% or more of our outstanding Common Stock,
including Common Stock involved in certain derivative transactions described in
the Rights Agreement. However, that definition does not generally
include (i) the Company, any such Subsidiary of the Company, any employee
benefit or stock ownership plan of the Company or any such Subsidiary, or any
entity holding Common Stock for or pursuant to the terms of any such plan or
(ii) any Exempt Person. Our Board of Directors has the authority
under the Rights Agreement to determine that a person who would otherwise be an
Acquiring Person has become an Acquiring Person inadvertently, and to treat such
person as not having become an Acquiring Person if such person divests as
promptly as practicable a sufficient number of Common Stock so that such person
would no longer be an Acquiring Person.
C-2
The Rights
Agreement defines the term “Exempt Person” generally to
mean certain holders of our Common Stock who are known to us as being the
beneficial owners of more than 5% of our outstanding Common Stock as long as
they continue to hold such shares of Common Stock as a passive investment in our
securities. These persons include (i) St. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ &
Company, L.L.C., (ii) ▇. ▇▇▇▇ Price Associates, Inc., (iii) The ▇▇▇▇▇ Estates,
Inc., (iv) Daruma Asset Management, Inc., (vi) G. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇, (vii)
▇▇▇▇▇ ▇. ▇▇▇▇▇, and (viii) any affiliate or associate of any of the
foregoing.
We refer
to the date when the Rights become exercisable as the “Distribution
Date.” As defined in the Rights Agreement, the Distribution Date
generally means the earlier of (x) the close of business on the tenth day after
the date of public announcement by the Company or an Acquiring Person that a
person has become an Acquiring Person and (y) the close of business on the tenth
business day after the date of the commencement of a tender or exchange offer
the consummation of which would result in the person who is making such offer
becoming an Acquiring Person.
As noted
above, until a Distribution Date occurs, the outstanding shares of our Common
Stock from time to time, whether or not such shares are certificated, will also
evidence the Rights, and any transfer of shares of Common Stock or, in the case
of certificated shares, certificates for Common Stock will constitute a transfer
of the associated Rights.
After any
Distribution Date occurs, the Rights will separate from the Common Stock and
will be recorded in the records of the Rights Agent, either in certificated or
uncertificated form. Only holders of record of outstanding Rights after the
occurrence of a Distribution Date will be entitled to exercise any of the rights
of a holder of Rights. Any Rights held by an Acquiring Person or any associate
or affiliate of an Acquiring Person will be deemed to be void and may not be
exercised by any such person.
Exercise Price
Once the
Rights become exercisable following a Distribution Date, each Right will permit
its holder to purchase from us one one-hundredth of a share of Series A
Preferred Stock (“Series A Preferred Share”) for $55.00. This portion
of a Series A Preferred Share will give the stockholder approximately the same
dividend, voting and liquidation rights as would one one-hundredth of a share of
Common Stock.
Prior to
the occurrence of a Distribution Date and the subsequent exercise of the Rights
by the holders of record thereof, the Rights do not give their holders any
rights with respect to shares of Series A Preferred Stock, Common Stock or
otherwise.
Consequences
of Becoming an Acquiring Person
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Flip In. If
a person or group becomes an Acquiring Person and a Distribution Date
occurs, all holders of record of Rights except the Acquiring Person or any
associate or affiliate thereof may purchase shares of our Common Stock for
a price equal to the quotient obtained by dividing $55.00 per right
(subject to adjustment as provided in the plan) by one-half of the then
current market price of the Company’s Common
Stock.
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C-3
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Flip
Over. If our Company is later acquired in a merger or
similar transaction after a Distribution Date, all holders of record of
Rights except the Acquiring Person or any associate or affiliate thereof
may purchase shares of the acquiring corporation’s stock for a price equal
to the quotient obtained by dividing $55.00 per right (subject to
adjustment as provided in the plan) by one-half of the then current market
price of the acquiring company’s common stock, based on the
market price of the acquiring corporation’s stock prior to such
merger.
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Expiration
of Rights
The Rights
will expire on the earlier to occur of (i) December 22, 2011, or such later date
as approved by the independent members of the Board of Directors of the Company
(so long as such determination is made prior to December 22, 2011), or (ii)
December 22, 2018. No payment will be made to the holder of any Right
upon its expiration.
Redemption
of Rights
Our Board
may redeem the Rights for $0.001 per Right at any time prior to 10 days after
such time that any person or group becomes an Acquiring Person. If
our Board redeems any Rights, it must redeem all of the Rights that are not
deemed to be void. Once the Rights are redeemed, the only
right of the holders of Rights will be to receive the redemption
price of $0.001 per Right. The redemption price will be adjusted if
we have a stock split or stock dividends of our Common Stock.
Exchange
of Rights
After a
person or group becomes an Acquiring Person, but before such Acquiring Person
owns 50% or more of our outstanding Common Stock, our Board may extinguish the
Rights by exchanging one share of Common Stock or an equivalent security for
each Right, other than Rights held by the Acquiring Person and its affiliates or
associates.
Provisions
Related to Series A Preferred Shares
Once
issued and outstanding, shares of Series A Preferred Stock:
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Will
not be redeemable.
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Will
entitle holders of record to receive cumulative cash dividends when, as
and if declared by the Board in an amount equal to the amount, if any, of
cash dividends paid on each share of Common Stock, and additional
quarterly cash dividends equal to $1.00 per whole share of Series A
Preferred Stock issued and outstanding less the per share amount of all
cash dividends, if any, declared on our Common Stock, if any, before
giving effect to the application of a Formula Number (as defined, which
unless adjusted will equal 100), since the immediately preceding Quarterly
Dividend Payment Date.
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Will
entitle holders of record upon liquidation to receive an amount equal to
any accrued and unpaid dividends and distributions on shares of Series A
Preferred Stock, whether or not declared, plus an amount equal to the
greater of (i) $0.01 per whole share of Series A Preferred Stock and (ii)
an aggregate amount per whole share of Series A Preferred Stock equal to a
Formula Number (as defined, which unless adjusted will equal 100) then in
effect times the aggregate amount to be distributed per share to holders
of Common Stock.
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C-4
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Will
generally have the same voting power as one share of Common Stock, will
generally vote as a single class with our Common Stock and will have the
right to vote as a single class with respect to such matters as are
required by law.
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If
shares of our Common Stock are exchanged via merger, consolidation or a
similar transaction, will entitle holders of record of Series A Preferred
Stock to a per share payment generally equal to the payment to be made on
one share of Common Stock.
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The value
of a Series A Preferred Share should approximate the value of one share of
Common Stock.
Anti-Dilution
Provisions
Our Board
may adjust the purchase price of the Series A Preferred Shares to be paid upon
the exercise of Rights, the number of Series A Preferred Shares issuable and the
number of outstanding Rights from time to time to prevent dilution that may
occur from any stock dividend, stock split or reclassification of the issued and
outstanding Series A Preferred Shares or of our Common Stock or for certain
other events set forth in the Rights Agreement. No adjustments to the
exercise price of any Right amounting to less than 1% will be made, but any such
adjustment will be carried forward and applied with respect to any subsequent
anti-dilution adjustment.
Amendments
The Rights
Agreement may be amended by our Board in its sole discretion until such time as
any person becomes an Acquiring Person. After such time the Board
may, subject to certain limitations set forth in the Rights Agreement, amend the
Rights Agreement only to cure any ambiguity, defect or inconsistency, to shorten
or lengthen any time period, or to make changes that do not adversely affect the
interests of Rights holders (excluding the interests of an Acquiring Person or
its associates or affiliates).
In
addition, the Board may, at any time prior to the time at which any person
becomes an Acquiring Person, amend the Rights Agreement to lower the threshold
at which a person becomes an Acquiring Person to not less than 10%; provided,
however, that the Board may not cause a person or group to become an Acquiring
Person by lowering this threshold below the percentage interest that such person
or group already owns. The Board has no current intention to carry
out any such amendment.
C-5