Exhibit (1)
SHAREHOLDER PROTECTION RIGHTS AGREEMENT
dated as of
October 18, 1995
between
ONE VALLEY BANCORP OF WEST VIRGINIA, INC.
and
ONE VALLEY BANK, NATIONAL ASSOCIATION
as Rights Agent
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SHAREHOLDER PROTECTION RIGHTS AGREEMENT
Table of Contents
Page
Article I
CERTAIN DEFINITIONS
1.1 Certain Definitions . . . . . . . . . . . . . . . . . . . . . . . 2
Article II
THE RIGHTS
2.1 Summary of Rights . . . . . . . . . . . . . . . . . . . . . . . . 13
2.2 Legend on Common Stock Certificates . . . . . . . . . . . . . . . 13
2.3 Exercise of Rights; Separation of Rights . . . . . . . . . . . . 14
2.4 Adjustments to Exercise Price; Number of Rights . . . . . . . . . 18
2.5 Date on Which Exercise is Effective . . . . . . . . . . . . . . . 20
2.6 Execution, Authentication, Delivery and
Dating of Rights Certificates . . . . . . . . . . . . . . . . . 21
2.7 Registration, Registration of Transfer and
Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2.8 Mutilated, Destroyed, Lost and Stolen Rights Certificates . . . . 24
2.9 Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . 25
2.10 Delivery and Cancellation of Certificates . . . . . . . . . . . . 26
2.11 Agreement of Rights Holders . . . . . . . . . . . . . . . . . . . 26
Article III
ADJUSTMENTS TO THE RIGHTS IN
THE EVENT OF CERTAIN TRANSACTIONS
3.1 Flip-in . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
3.2 Flip-over . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Article IV
THE RIGHTS AGENT
4.1 General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
4.2 Merger or Consolidation or Change of Name of
Rights Agent . . . . . . . . . . . . . . . . . . . . . . . . . 34
4.3 Duties of Rights Agent . . . . . . . . . . . . . . . . . . . . . 36
4.4 Change of Rights Agent . . . . . . . . . . . . . . . . . . . . . 40
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Article V
MISCELLANEOUS
5.1 Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
5.2 Expiration . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
5.3 Issuance of New Rights Certificates . . . . . . . . . . . . . . . 43
5.4 Supplements and Amendments . . . . . . . . . . . . . . . . . . . 44
5.5 Fractional Shares . . . . . . . . . . . . . . . . . . . . . . . . 44
5.6 Rights of Action . . . . . . . . . . . . . . . . . . . . . . . . 45
5.7 Holder of Rights Not Deemed a Shareholder . . . . . . . . . . . . 46
5.8 Notice of Proposed Actions . . . . . . . . . . . . . . . . . . . 46
5.9 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
5.10 Suspension of Exercisability . . . . . . . . . . . . . . . . . . 48
5.11 Costs of Enforcement . . . . . . . . . . . . . . . . . . . . . . 49
5.12 Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
5.13 Benefits of this Agreement . . . . . . . . . . . . . . . . . . . 49
5.14 Determination and Actions by the Board of
Directors, etc. . . . . . . . . . . . . . . . . . . . . . . . . 49
5.15 Descriptive Headings . . . . . . . . . . . . . . . . . . . . . . 50
5.16 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . 50
5.17 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . 50
5.18 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . 51
EXHIBITS
EXHIBIT A Form of Rights Certificate
(Together with Form of
Election to Exercise)
EXHIBIT B Form of Resolutions of Designation
of Participating Preferred Stock
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SHAREHOLDER PROTECTION RIGHTS AGREEMENT
SHAREHOLDER PROTECTION RIGHTS AGREEMENT (as amended from time
to time, this "Agreement"), dated as of October 18, 1995, between One
Valley Bancorp of West Virginia, Inc., a West Virginia corporation (the
"Company"), and One Valley Bank, National Association, as Rights Agent (the
"Rights Agent", which term shall include any successor Rights Agent
hereunder).
WITNESSETH:
WHEREAS, the Board of Directors of the Company has
(a) authorized and declared a dividend of one right ("Right") in respect of
each share of Common Stock (as hereinafter defined) held of record as of
the close of business on October 30, 1995 (the "Record Time") and (b) as
provided in Section 2.4, authorized the issuance of one Right in respect of
each share of Common Stock issued after the Record Time and prior to the
Separation Time (as hereinafter defined) and, to the extent provided in
Section 5.3, each share of Common Stock issued after the Separation Time;
WHEREAS, subject to Sections 3.1, 5.1 and 5.10, each Right
entitles the holder thereof, after the Separation Time, to purchase
securities of the Company (or, in certain cases, of certain other entities)
pursuant to the terms and subject to the conditions set forth herein; and
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WHEREAS, the Company desires to appoint the Rights Agent to act
on behalf of the Company, and the Rights Agent is willing so to act, in
connection with the issuance, transfer, exchange and replacement of Rights
Certificates (as hereinafter defined), the exercise of Rights and other
matters referred to herein;
NOW THEREFORE, in consideration of the premises and the
respective agreements set forth herein, the parties hereby agree as
follows:
ARTICLE I
CERTAIN DEFINITIONS
1.1 Certain Definitions. For purposes of this Agreement, the
following terms have the meanings indicated:
"Acquiring Person" shall mean any Person who is a Beneficial
Owner of 10% or more of the outstanding shares of Common Stock; provided,
however, that the term "Acquiring Person" shall not include any Person
(i) any lineal descendants (including adopted descendants) of ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇ or ▇.▇. ▇▇▇▇▇▇▇▇▇ or their spouses or any trust established by or
for the benefit of, or any estate of, any of the foregoing individuals,
(ii) who is the Beneficial Owner of 10% or more of the outstanding shares
of Common Stock on the date of this Agreement or who shall become the
Beneficial Owner of 10% or more of the outstanding shares of Common Stock
solely as a result of an acquisition by the
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Company of shares of Common Stock, until such time hereafter or thereafter
as any of such Persons shall become the Beneficial Owner (other than by
means of a stock dividend or stock split) of any additional shares of
Common Stock, (iii) who is the Beneficial Owner of 10% or more of the
outstanding shares of Common Stock but who acquired Beneficial Ownership of
shares of Common Stock without any plan or intention to seek or affect
control of the Company, if such Person promptly enters into an irrevocable
commitment promptly to divest, and thereafter promptly divests (without
exercising or retaining any power, including voting, with respect to such
shares), sufficient shares of Common Stock (or securities convertible into,
exchangeable into or exercisable for Common Stock) so that such Person
ceases to be the Beneficial Owner of 10% or more of the outstanding shares
of Common Stock or (iv) who Beneficially Owns shares of Common Stock
consisting solely of one or more of (A) shares of Common Stock Beneficially
Owned pursuant to the grant or exercise of an option granted to such Person
by the Company in connection with an agreement to merge with, or acquire,
the Company entered into prior to a Flip-in Date, (B) shares of Common
Stock (or securities convertible into, exchangeable into or exercisable for
Common Stock) Beneficially Owned by such Person or its Affiliates or Asso-
ciates at the time of grant of such option, (C) shares of Common Stock (or
securities convertible into, exchangeable
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into or exercisable for Common Stock) acquired by Affiliates or Associates
of such Person after the time of such grant which, in the aggregate, amount
to less than 1% of the outstanding shares of Common Stock or (D) Common
Stock (or securities convertible into, exchangeable into or exercisable for
Common Stock) which are held by such Person in trust accounts, managed
accounts and the like or otherwise held in a fiduciary capacity, that are
beneficially owned by third persons who are not Affiliates or Associates of
such Person or acting together with such Person to hold such shares, or
which are held by such Person in respect of a debt previously contracted.
In addition, the Company, any wholly-owned Subsidiary of the Company and
any employee stock ownership or other employee benefit plan of the Company
or a wholly-owned Subsidiary of the Company shall not be an Acquiring
Person.
"Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 under the Securities Exchange Act of
1934, as such Rule is in effect on the date of this Agreement.
A Person shall be deemed the "Beneficial Owner", and to have
"Beneficial Ownership" of, and to "Beneficially Own", any securities as to
which such Person or any of such Person's Affiliates or Associates is or
may be deemed to be the beneficial owner of pursuant to Rules 13d-3 and
13d-5 under the Securities Exchange Act, as such Rules are in
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effect on the date of this Agreement as well as any securities as to which
such Person or any of such Person's Affiliates or Associates has the right
to become Beneficial Owner (whether such right is exercisable immediately
or only after the passage of time or the occurrence of conditions) pursuant
to any agreement, arrangement or understanding, or upon the exercise of
conversion rights, exchange rights, rights (other than the Rights),
warrants or options, or otherwise; provided, however, that a Person shall
not be deemed the "Beneficial Owner", or to have "Beneficial Ownership" of,
or to "Beneficially Own", any security (i) solely because such security has
been tendered pursuant to a tender or exchange offer made by such Person or
any of such Person's Affiliates or Associates until such tendered security
is accepted for payment or exchange or (ii) solely because such Person or
any of such Person's Affiliates or Associates has or shares the power to
vote or direct the voting of such security pursuant to a revocable proxy
given in response to a public proxy or consent solicitation made to more
than ten holders of shares of a class of stock of the Company registered
under Section 12 of the Securities Exchange Act of 1934 and pursuant to,
and in accordance with, the applicable rules and regulations under the
Securities Exchange Act of 1934, except if such power (or the arrangements
relating thereto) is then reportable under Item 6 of Schedule 13D under the
Securities Exchange Act of 1934 (or any similar
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provision of a comparable or successor report). Notwithstanding the
foregoing, no officer or director of the Company shall be deemed to
Beneficially Own any securities of any other Person by virtue of any
actions such officer or director takes in such capacity. For purposes of
this Agreement, in determining the percentage of the outstanding shares of
Common Stock with respect to which a Person is the Beneficial Owner, all
shares as to which such Person is deemed the Beneficial Owner shall be
deemed outstanding.
"Business Day" shall mean any day other than a Saturday, Sunday
or a day on which banking institutions in Charleston, West Virginia are
generally authorized or obligated by law or executive order to close.
"Close of business" on any given date shall mean 5:00 p.m.
Charleston, West Virginia time on such date (or, if such date is not a
Business Day, 5:00 p.m. Charleston, West Virginia time on the next
succeeding Business Day).
"Common Stock" shall mean the shares of Common Stock, par value
$10.00 per share, of the Company.
"Exchange Time" shall mean the time at which the right to
exercise the Rights shall terminate pursuant to Section 3.1(c) hereof.
"Exercise Price" shall mean, as of any date, the price at which
a holder may purchase the securities issuable upon exercise of one whole
Right. Until adjustment thereof
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in accordance with the terms hereof, the Exercise Price shall equal $100.
"Expiration Time" shall mean the earliest of (i) the Exchange
Time, (ii) the Redemption Time, (iii) October 18, 2005 and (iv) upon the
merger of the Company into another corporation pursuant to an agreement
entered into prior to a Flip-in Date.
"Flip-in Date" shall mean the tenth business day after any
Stock Acquisition Date or such earlier or later date as the Board of
Directors of the Company may from time to time fix by resolution adopted
prior to the Flip-in Date that would otherwise have occurred.
"Flip-over Entity," for purposes of Section 3.2, shall mean
(i) in the case of a Flip-over Transaction or Event described in clause
(i) of the definition thereof, the Person issuing any securities into which
shares of Common Stock are being converted or exchanged and, if no such
securities are being issued, the other party to such Flip-over Transaction
or Event and (ii) in the case of a Flip-over Transaction or Event referred
to in clause (ii) of the definition thereof, the Person receiving the
greatest portion of the assets or earning power being transferred in such
Flip-over Transaction or Event, provided in all cases if such Person is a
subsidiary of a corporation, the parent corporation shall be the Flip-over
Entity.
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"Flip-over Stock" shall mean the capital stock (or similar
equity interest) with the greatest voting power in respect of the election
of directors (or other persons similarly responsible for direction of the
business and affairs) of the Flip-over Entity.
"Flip-over Transaction or Event" shall mean a transaction or
series of transactions after a Flip-in Date in which, directly or
indirectly, (i) the Company shall consolidate or merge or participate in a
share exchange with any other Person if, at the time of the consolidation,
merger or share exchange or at the time the Company enters into any agree-
ment with respect to any such consolidation, merger or share exchange, the
Acquiring Person Controls the Board of Directors of the Company and either
(A) any term of or arrangement concerning the treatment of shares of
capital stock in such consolidation, merger or share exchange relating to
the Acquiring Person is not identical to the terms and arrangements
relating to other holders of the Common Stock or (B) the Person with whom
the transaction or series of transactions occurs is the Acquiring Person or
an Affiliate or Associate of the Acquiring Person or (ii) the Company shall
sell or otherwise transfer (or one or more of its Subsidiaries shall sell
or otherwise transfer) assets (A) aggregating more than 50% of the assets
(measured by either book value or fair market value) or (B) generating more
than 50% of the operating income or cash flow, of the
9
Company and its Subsidiaries (taken as a whole) to any Person (other than
the Company or one or more of its wholly-owned Subsidiaries) or to two or
more such Persons which are Affiliates or Associates or otherwise acting in
concert, if, at the time of the entry by the Company (or any such
Subsidiary) into an agreement with respect to such sale or transfer of
assets, the Acquiring Person Controls the Board of Directors of the Com-
pany. An Acquiring Person shall be deemed to Control the Company's Board
of Directors when, following a Flip-in Date, the persons who were directors
of the Company before the Flip-in Date shall cease to constitute a majority
of the Company's Board of Directors.
"Market Price" per share of any securities on any date shall
mean the average of the daily closing prices per share of such securities
(determined as described below) on each of the 20 consecutive Trading Days
through and including the Trading Day immediately preceding such date; pro-
vided, however, that if an event of a type analogous to any of the events
described in Section 2.4 hereof shall have caused the closing prices used
to determine the Market Price on any Trading Days during such period of 20
Trading Days not to be fully comparable with the closing price on such
date, each such closing price so used shall be appropriately adjusted in
order to make it fully comparable with the closing price on such date. The
closing price per share of any securities on any date shall be the last
reported sale
10
price, regular way, or, in case no such sale takes place or is quoted on
such date, the average of the closing bid and asked prices, regular way,
for each share of such securities, in either case as reported in the
principal consolidated transaction reporting system with respect to
securities listed or admitted to trading on the New York Stock Exchange,
Inc. or, if the securities are not listed or admitted to trading on the New
York Stock Exchange, Inc., as reported in the principal consolidated trans-
action reporting system with respect to securities listed on the principal
national securities exchange on which the securities are listed or admitted
to trading or, if the securities are not listed or admitted to trading on
any national securities exchange, as reported by the National Association
of Securities Dealers, Inc. Automated Quotation System or such other system
then in use, or, if on any such date the securities are not listed or ad-
mitted to trading on any national securities exchange or 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 securities selected
by the Board of Directors of the Company; provided, however, that if on any
such date the securities are not listed or admitted to trading on a
national securities exchange or traded in the over-the-counter market, the
closing price per share of such securities on such date shall mean the fair
value per share of
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securities on such date as determined in good faith by the Board of
Directors of the Company, after consultation with a nationally recognized
investment banking firm, and set forth in a certificate delivered to the
Rights Agent.
"Person" shall mean any individual, firm, partnership,
association, group (as such term is used in Rule 13d-5 under the Securities
Exchange Act of 1934, as such Rule is in effect on the date of this
Agreement), corporation or other entity.
"Preferred Stock" shall mean the series of Participating
Preferred Stock, par value $10.00 per share, of the Company created by a
Resolution of Designation in substantially the form set forth in Exhibit B
hereto appropriately completed.
"Redemption Price" shall mean an amount equal to one cent,
$0.01.
"Redemption Time" shall mean the time at which the right to
exercise the Rights shall terminate pursuant to Section 5.1 hereof.
"Separation Time" shall mean the close of business on the
earlier of (i) the tenth business day (or such later date as the Board of
Directors of the Company may from time to time fix by resolution adopted
prior to the Separation Time that would otherwise have occurred) after the
date on which any Person commences a tender or exchange offer which, if
consummated, would result in such Person's becoming an
12
Acquiring Person and (ii) the Flip-in Date; provided, that if the foregoing
results in the Separation Time being prior to the Record Time, the
Separation Time shall be the Record Time and provided further, that if any
tender or exchange offer referred to in clause (i) of this paragraph is
cancelled, terminated or otherwise withdrawn prior to the Separation Time
without the purchase of any shares of Common Stock pursuant thereto, such
offer shall be deemed, for purposes of this paragraph, never to have been
made.
"Stock Acquisition Date" shall mean the first date of public
announcement by the Company (by any means) that an Acquiring Person has
become such.
"Subsidiary" of any specified Person shall mean any corporation
or other entity of which a majority of the voting power of the equity
securities or a majority of the equity interest is Beneficially Owned,
directly or indirectly, by such Person.
"Trading Day," when used with respect to any securities, shall
mean a day on which the New York Stock Exchange, Inc. is open for the
transaction of business or, if such securities are not listed or admitted
to trading on the New York Stock Exchange, Inc., a day on which the princi-
pal national securities exchange on which such securities are listed or
admitted to trading is open for the transaction of business or, if such
securities are not listed or
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admitted to trading on any national securities exchange, a
Business Day.
ARTICLE II
THE RIGHTS
2.1 Summary of Rights. As soon as practicable after the
Record Time, the Company will mail a letter summarizing the terms of the
Rights to each holder of record of Common Stock as of the Record Time, at
such holder's address as shown by the records of the Company.
2.2 Legend on Common Stock Certificates. Certificates for the
Common Stock issued after the Record Time but prior to the Separation Time
shall evidence one Right for each share of Common Stock represented thereby
and shall have impressed on, printed on, written on or otherwise affixed to
them the following legend:
Until the Separation Time (as defined in the Rights Agreement
referred to below), this certificate also evidences and entitles the
holder hereof to certain Rights as set forth in a Rights Agreement,
dated as of October 18, 1995 (as such may be amended from time to
time, the "Rights Agreement"), between One Valley Bancorp of West
Virginia, Inc. (the "Company") and One Valley Bank, National
Association, as Rights Agent, the terms of which are hereby
incorporated herein by reference and a copy of which is on file at
the principal executive offices of the Company. Under certain
circumstances, as set forth in the Rights Agreement, such Rights may
be redeemed, may become exercisable for securities or assets of the
Company or of another entity, may be exchanged for shares of Common
Stock or other securities or assets of the Company, may expire, may
become void (if they are "Beneficially Owned" by an "Acquiring
Person" or an Affiliate or Associate thereof, as such terms are
defined in the Rights Agreement, or by any transferee of any of the
fore-
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going) or may be evidenced by separate certificates and may no longer
be evidenced by this certificate. The Company will mail or arrange
for the mailing of a copy of the Rights Agreement to the holder of
this certificate without charge promptly after the receipt of a
written request therefor.
Certificates representing shares of Common Stock that are issued and
outstanding at the Record Time shall evidence one Right for each share of
Common Stock evidenced thereby notwithstanding the absence of the foregoing
legend.
2.3 Exercise of Rights; Separation of Rights. (a) Subject
to Sections 3.1, 5.1 and 5.10 and subject to adjustment as herein set
forth, each Right will entitle the holder thereof, after the Separation
Time and prior to the Expiration Time, to purchase, for the Exercise Price,
one one-hundredth of a share of Preferred Stock.
(b) Until the Separation Time, (i) no Right may be exercised
and (ii) each Right will be evidenced by the certificate for the associated
share of Common Stock (together, in the case of certificates issued prior
to the Record Time, with the letter mailed to the record holder thereof
pursuant to Section 2.1) and will be transferable only together with, and
will be transferred by a transfer (whether with or without such letter) of,
such associated share.
(c) Subject to this Section 2.3 and to Sections 3.1, 5.1 and
5.10, after the Separation Time and prior to the Expiration Time, the
Rights (i) may be exercised and
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(ii) may be transferred independent of shares of Common Stock. Promptly
following the Separation Time, the Rights Agent will mail to each holder of
record of Common Stock as of the Separation Time (other than any Person
whose Rights have become void pursuant to Section 3.1(b)), at such holder's
address as shown by the records of the Company (the Company hereby agreeing
to furnish copies of such records to the Rights Agent for this purpose),
(x) a certificate (a "Rights Certificate") in substantially the form of
Exhibit A hereto appropriately completed, representing the number of Rights
held by such holder at the Separation Time and having 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 law or with any rule or regulation made pursuant thereto
or with any rule or regulation of any national securities exchange or
quotation system on which the Rights may from time to time be listed or
traded, or to conform to usage, and (y) a disclosure statement describing
the Rights.
(d) Subject to Sections 3.1, 5.1 and 5.10, Rights may be
exercised on any Business Day after the Separation Time and prior to the
Expiration Time by submitting to the Rights Agent the Rights Certificate
evidencing such Rights with an Election to Exercise (an "Election to Exer-
cise")
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substantially in the form attached to the Rights Certificate duly
completed, accompanied by payment in cash, or by certified or official bank
check or money order payable to the order of the Company, of a sum equal to
the Exercise Price multiplied by the number of Rights being exercised and a
sum sufficient to cover any transfer tax or charge which may be payable in
respect of any transfer involved in the transfer or delivery of Rights
Certificates or the issuance or delivery of certificates for shares or
depositary receipts (or both) in a name other than that of the holder of
the Rights being exercised.
(e) Upon receipt of a Rights Certificate, with an Election to
Exercise accompanied by payment as set forth in Section 2.3(d), and subject
to Sections 3.1, 5.1 and 5.10, the Rights Agent will thereupon promptly
(i)(A) requisition from a transfer agent stock certificates evidencing such
number of shares or other securities to be purchased (the Company hereby
irrevocably authorizing its transfer agents to comply with all such
requisitions) and (B) if the Company elects pursuant to Section 5.5 not to
issue certificates representing fractional shares, requisition from the
depositary selected by the Company depositary receipts representing the
fractional shares to be purchased or requisition from the Company the
amount of cash to be paid in lieu of fractional shares in accordance with
Section 5.5 and (ii) after receipt of such certificates, depositary
receipts
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and/or cash, deliver the same to or upon the order of the registered holder
of such Rights Certificate, registered (in the case of certificates or
depositary receipts) in such name or names as may be designated by such
holder.
(f) In case the holder of any Rights shall exercise less than
all the Rights evidenced by such holder's Rights Certificate, a new Rights
Certificate evidencing the Rights remaining unexercised will be issued by
the Rights Agent to such holder or to such holder's duly authorized
assigns.
(g) The Company covenants and agrees that it will (i) take
all such action as may be necessary to ensure that all shares delivered
upon exercise of Rights shall, at the time of delivery of the certificates
for such shares (subject to payment of the Exercise Price), be duly and
validly authorized, executed, issued and delivered and fully paid and
nonassessable; (ii) take all such action as may be necessary to comply with
any applicable requirements of the Securities Act of 1933 or the Securities
Exchange Act of 1934, and the rules and regulations thereunder, and any
other applicable law, rule or regulation, in connection with the issuance
of any shares upon exercise of Rights; and (iii) pay when due and payable
any and all federal and state transfer taxes and charges which may be
payable in respect of the original issuance or delivery of the Rights
Certificates or of any shares issued upon the exercise of Rights,
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provided that the Company shall not be required to pay any transfer tax or
charge which may be payable in respect of any transfer involved in the
transfer or delivery of Rights Certificates or the issuance or delivery of
certificates for shares in a name other than that of the holder of the
Rights being transferred or exercised.
2.4 Adjustments to Exercise Price; Number of Rights. (a) In
the event the Company shall at any time after the Record Time and prior to
the Separation Time (i) declare or pay a dividend on Common Stock payable
in Common Stock, (ii) subdivide the outstanding Common Stock or
(iii) combine the outstanding Common Stock into a smaller number of shares
of Common Stock, (x) the Exercise Price in effect after such adjustment
will be equal to the Exercise Price in effect immediately prior to such
adjustment divided by the number of shares of Common Stock (the "Expansion
Factor") that a holder of one share of Common Stock immediately prior to
such dividend, subdivision or combination would hold thereafter as a result
thereof and (y) each Right held prior to such adjustment will become that
number of Rights equal to the Expansion Factor, and the adjusted number of
Rights will be deemed to be distributed among the shares of Common Stock
with respect to which the original Rights were associated (if they remain
outstanding) and the shares issued in respect of such dividend, subdivision
or combination, so that each such share of Common Stock will
19
have exactly one Right associated with it. Each adjustment made pursuant
to this paragraph shall be made as of the payment or effective date for the
applicable dividend, subdivision or combination.
In the event the Company shall at any time after the Record
Time and prior to the Separation Time issue any shares of Common Stock
otherwise than in a transaction referred to in the preceding paragraph,
each such share of Common Stock so issued shall automatically have one new
Right associated with it, which Right shall be evidenced by the certificate
representing such share. To the extent provided in Section 5.3, Rights
shall be issued by the Company in respect of shares of Common Stock that
are issued or sold by the Company after the Separation Time.
(b) In the event the Company shall at any time after the
Record Time and prior to the Separation Time issue or distribute any
securities or assets in respect of, in lieu of or in exchange for Common
Stock (other than pursuant to a regular periodic cash dividend or a
dividend paid solely in Common Stock) whether by dividend, in a reclassifi-
cation or recapitalization (including any such transaction involving a
merger, consolidation or share exchange), or otherwise, the Company shall
make such adjustments, if any, in the Exercise Price, number of Rights
and/or securities or other property purchasable upon exercise of Rights as
the Board of Directors of the Company, in its sole discretion,
20
may deem to be appropriate under the circumstances in order to adequately
protect the interests of the holders of Rights generally, and the Company
and the Rights Agent shall amend this Agreement as necessary to provide for
such adjustments.
(c) Each adjustment to the Exercise Price made pursuant to
this Section 2.4 shall be calculated to the nearest cent. Whenever an
adjustment to the Exercise Price is made pursuant to this Section 2.4, the
Company shall (i) promptly prepare a certificate setting forth such adjust-
ment and a brief statement of the facts accounting for such adjustment and
(ii) promptly file with the Rights Agent and with each transfer agent for
the Common Stock a copy of such certificate.
(d) Rights Certificates shall represent the securities
purchasable under the terms of this Agreement, including any adjustment or
change in the securities purchasable upon exercise of the Rights, even
though such certificates may continue to express the securities purchasable
at the time of issuance of the initial Rights Certificates.
2.5 Date on Which Exercise is Effective. Each person in
whose name any certificate for shares is issued upon the exercise of Rights
shall for all purposes be deemed to have become the holder of record of the
shares represented thereby on the date upon which the Rights Certificate
evidencing such Rights was duly surrendered and payment of
21
the Exercise Price for such Rights (and any applicable taxes and other
governmental charges payable by the exercising holder hereunder) was made;
provided, however, that if the date of such surrender and payment is a date
upon which the stock transfer books of the Company are closed, such person
shall be deemed to have become the record holder of such shares on, and
such certificate shall be dated, the next succeeding Business Day on which
the stock transfer books of the Company are open.
2.6 Execution, Authentication, Delivery and Dating of Rights
Certificates. (a) The Rights Certificates shall be executed on behalf of
the Company by its Chairman of the Board, President or one of its Vice
Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of
these officers on the Rights Certificates may be manual or facsimile.
Rights Certificates bearing the manual or facsimile signatures
of individuals who were at any time the proper officers of the Company
shall bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the countersignature and
delivery of such Rights Certificates.
Promptly after the Separation Time, the Company will notify the
Rights Agent of such Separation Time and will deliver Rights Certificates
executed by the Company to
22
the Rights Agent for countersignature, and, subject to Section 3.1(b), the
Rights Agent shall manually countersign and deliver such Rights
Certificates to the holders of the Rights pursuant to Section 2.3(c)
hereof. No Rights Certificate shall be valid for any purpose unless
manually countersigned by the Rights Agent.
(b) Each Rights Certificate shall be dated the date of
countersignature thereof.
2.7 Registration, Registration of Transfer and Exchange. (a)
After the Separation Time, the Company will cause to be kept a register
(the "Rights Register") in which, subject to such reasonable regulations as
it may prescribe, the Company will provide for the registration and
transfer of Rights. The Rights Agent is hereby appointed "Rights
Registrar" for the purpose of maintaining the Rights Register for the
Company and registering Rights and transfers of Rights after the Separation
Time as herein provided. In the event that the Rights Agent shall cease to
be the Rights Registrar, the Rights Agent will have the right to examine
the Rights Register at all reasonable times after the Separation Time.
After the Separation Time and prior to the Expiration Time,
upon surrender for registration of transfer or exchange of any Rights
Certificate, and subject to the provisions of Sections 2.7(c) and (d), the
Company will execute, and the Rights Agent will countersign and deliver, in
the
23
name of the holder or the designated transferee or transferees, as required
pursuant to the holder's instructions, one or more new Rights Certificates
evidencing the same aggregate number of Rights as did the Rights Certifi-
cate so surrendered.
(b) Except as otherwise provided in Section 3.1(b), all
Rights issued upon any registration of transfer or exchange of Rights
Certificates shall be the valid obligations of the Company, and such Rights
shall be entitled to the same benefits under this Agreement as the Rights
surrendered upon such registration of transfer or exchange.
(c) Every Rights Certificate surrendered for registration of
transfer or exchange shall be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company or the Rights
Agent, as the case may be, duly executed by the holder thereof or such
holder's attorney duly authorized in writing. As a condition to the
issuance of any new Rights Certificate under this Section 2.7, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto.
(d) The Company shall not be required to register the
transfer or exchange of any Rights after such Rights have become void under
Section 3.1(b), been exchanged under
24
Section 3.1(c) or been redeemed or terminated under Section 5.1.
2.8 Mutilated, Destroyed, Lost and Stolen Rights
Certificates. (a) If any mutilated Rights Certificate is surrendered to
the Rights Agent prior to the Expiration Time, then, subject to Sections
3.1(b), 3.1(c) and 5.1, the Company shall execute and the Rights Agent
shall countersign and deliver in exchange therefor a new Rights Certificate
evidencing the same number of Rights as did the Rights Certificate so
surrendered.
(b) If there shall be delivered to the Company and the Rights
Agent prior to the Expiration Time (i) evidence to their satisfaction of
the destruction, loss or theft of any Rights Certificate and (ii) such
security or indemnity as may be required by them to save each of them and
any of their agents harmless, then, subject to Sections 3.1(b), 3.1(c) and
5.1 and in the absence of notice to the Company or the Rights Agent that
such Rights Certificate has been acquired by a bona fide purchaser, the
Company shall execute and upon its request the Rights Agent shall
countersign and deliver, in lieu of any such destroyed, lost or stolen
Rights Certificate, a new Rights Certificate evidencing the same number of
Rights as did the Rights Certificate so destroyed, lost or stolen.
(c) As a condition to the issuance of any new Rights
Certificate under this Section 2.8, the Company may
25
require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Rights Agent) connected
therewith.
(d) Every new Rights Certificate issued pursuant to this
Section 2.8 in lieu of any destroyed, lost or stolen Rights Certificate
shall evidence an original additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Rights Certificate
shall be at any time enforceable by anyone, and, subject to Section 3.1(b),
shall be entitled to all the benefits of this Agreement equally and
proportionately with any and all other Rights duly issued hereunder.
2.9 Persons Deemed Owners. Prior to due presentment of a
Rights Certificate (or, prior to the Separation Time, the associated Common
Stock certificate) for registration of transfer, the Company, the Rights
Agent and any agent of the Company or the Rights Agent may deem and treat
the person in whose name such Rights Certificate (or, prior to the
Separation Time, such Common Stock certificate) is registered as the
absolute owner thereof and of the Rights evidenced thereby for all purposes
whatsoever, including the payment of the Redemption Price and neither the
Company nor the Rights Agent shall be affected by any notice to the con-
trary. As used in this Agreement, unless the context otherwise requires,
the term "holder" of any Rights shall mean
26
the registered holder of such Rights (or, prior to the Separation Time, the
associated shares of Common Stock).
2.10 Delivery and Cancellation of Certificates. All Rights
Certificates surrendered upon exercise or for registration of transfer or
exchange shall, if surrendered to any person other than the Rights Agent,
be delivered to the Rights Agent and, in any case, shall be promptly can-
celled by the Rights Agent. The Company may at any time deliver to the
Rights Agent for cancellation any Rights Certificates previously counter-
signed and delivered hereunder which the Company may have acquired in any
manner whatsoever, and all Rights Certificates so delivered shall be
promptly cancelled by the Rights Agent. No Rights Certificates shall be
countersigned in lieu of or in exchange for any Rights Certificates
cancelled as provided in this Section 2.10, except as expressly permitted
by this Agreement. The Rights Agent shall return all cancelled Rights
Certificates to the Company.
2.11 Agreement of Rights Holders. Every holder of Rights by
accepting the same consents and agrees with the Company and the Rights
Agent and with every other holder of Rights that:
(a) prior to the Separation Time, each Right will be
transferable only together with, and will be transferred by a transfer of,
the associated share of Common Stock;
27
(b) after the Separation Time, the Rights Certificates will
be transferable only on the Rights Register as provided herein;
(c) prior to due presentment of a Rights Certificate (or,
prior to the Separation Time, the associated Common Stock certificate) for
registration of transfer, the Company, the Rights Agent and any agent of
the Company or the Rights Agent may deem and treat the person in whose name
the Rights Certificate (or, prior to the Separation Time, the associated
Common Stock certificate) is registered as the absolute owner thereof and
of the Rights evidenced thereby for all purposes whatsoever, and neither
the Company nor the Rights Agent shall be affected by any notice to the
contrary;
(d) Rights beneficially owned by certain Persons will, under
the circumstances set forth in Section 3.1(b), become void; and
(e) this Agreement may be supplemented or amended from time to
time pursuant to Section 2.4(b) or 5.4 hereof.
ARTICLE III
ADJUSTMENTS TO THE RIGHTS IN
THE EVENT OF CERTAIN TRANSACTIONS
3.1 Flip-in. (a) In the event that prior to the Expiration
Time a Flip-in Date shall occur, except as provided in this Section 3.1,
each Right shall constitute the right to purchase from the Company, upon
exercise
28
thereof in accordance with the terms hereof (but subject to Section 5.10),
that number of shares of Common Stock having an aggregate Market Price on
the Stock Acquisition Date equal to twice the Exercise Price for an amount
in cash equal to the Exercise Price (such right to be appropriately
adjusted in order to protect the interests of the holders of Rights
generally in the event that on or after such Stock Acquisition Date an
event of a type analogous to any of the events described in Section 2.4(a)
or (b) shall have occurred with respect to the Common Stock).
(b) Notwithstanding the foregoing, any Rights that are or were
Beneficially Owned on or after the Stock Acquisition Date by an Acquiring
Person or an Affiliate or Associate thereof or by any transferee, direct or
indirect, of any of the foregoing shall become void and any holder of such
Rights (including transferees) shall thereafter have no right to exercise
or transfer such Rights under any provision of this Agreement. If any
Rights Certificate is presented for assignment or exercise and the Person
presenting the same will not complete the certification set forth at the
end of the form of assignment or notice of election to exercise and provide
such additional evidence of the identity of the Beneficial Owner and its
Affiliates and Associates (or former Beneficial Owners and their Affiliates
and Associates) as the Company shall reasonably request, then the Company
shall be entitled conclusively to deem the
29
Beneficial Owner thereof to be an Acquiring Person or an Affiliate or
Associate thereof or a transferee of any of the foregoing and accordingly
will deem the Rights evidenced thereby to be void and not transferable or
exercisable.
(c) The Board of Directors of the Company may, at its option,
at any time after a Flip-in Date and prior to the time that an Acquiring
Person becomes the Beneficial Owner of more than 50% of the outstanding
shares of Common Stock, elect to exchange all (but not less than all) the
then outstanding Rights (which shall not include Rights that have become
void pursuant to the provisions of Section 3.1(b)) for shares of Common
Stock at an exchange ratio of one share of Common Stock per Right,
appropriately adjusted in order to protect the interests of holders of
Rights generally in the event that after the Separation Time an event of a
type analogous to any of the events described in Section 2.4(a) or (b)
shall have occurred with respect to the Common Stock (such exchange ratio,
as adjusted from time to time, being hereinafter referred to as the
"Exchange Ratio").
Immediately upon the action of the Board of Directors of the
Company electing to exchange the Rights, without any further action and
without any notice, the right to exercise the Rights will terminate and
each Right (other than Rights that have become void pursuant to Sec-
tion 3.1(b)) will thereafter represent only the right to
30
receive a number of shares of Common Stock equal to the Exchange Ratio.
Promptly after the action of the Board of Directors electing to exchange
the Rights, the Company shall give notice thereof (specifying the steps to
be taken to receive shares of Common Stock in exchange for Rights) to the
Rights Agent and the holders of the Rights (other than Rights that have
become void pursuant to Section 3.1(b)) outstanding immediately prior
thereto by mailing such notice in accordance with Section 5.9.
Each Person in whose name any certificate for shares is issued
upon the exchange of Rights pursuant to this Section 3.1(c) or Section
3.1(d) shall for all purposes be deemed to have become the holder of record
of the shares represented thereby on, and such certificate shall be dated,
the date upon which the Rights Certificate evidencing such Rights was duly
surrendered and payment of any applicable taxes and other governmental
charges payable by the holder was made; provided, however, that if the date
of such surrender and payment is a date upon which the stock transfer books
of the Company are closed, such Person shall be deemed to have become the
record holder of such shares on, and such certificate shall be dated, the
next succeeding Business Day on which the stock transfer books of the
Company are open.
(d) Whenever the Company shall become obligated under
Section 3.1(a) or (c) to issue shares of Common Stock upon exercise of or
in exchange for Rights, the Company, at
31
its option, may substitute therefor shares of Preferred Stock, at a ratio
of one one-hundredth of a share of Preferred Stock for each share of Common
Stock so issuable.
(e) In the event that there shall not be sufficient treasury
shares or authorized but unissued shares of Common Stock or Preferred Stock
of the Company to permit the exercise or exchange in full of the Rights in
accordance with Section 3.1(a) or (c), the Company shall either (i) call a
meeting of shareholders seeking approval to cause sufficient additional
shares to be authorized (provided that if such approval is not obtained the
Company will take the action specified in clause (ii) of this sentence) or
(ii) take such action as shall be necessary to ensure and provide, to the
extent permitted by applicable law and any agreements or instruments in
effect on the Stock Acquisition Date to which it is a party, that each
Right shall thereafter constitute the right to receive, (x) at the
Company's option, either (A) in return for the Exercise Price, debt or
equity securities or other assets (or a combination thereof) having a fair
value equal to twice the Exercise Price, or (B) without payment of
consideration (except as otherwise required by applicable law), debt or
equity securities or other assets (or a combination thereof) having a fair
value equal to the Exercise Price, or (y) if the Board of Directors of the
Company elects to exchange the Rights in accordance with Section 3.1(c),
debt or equity securities or
32
other assets (or a combination thereof) having a fair value equal to the
product of the Market Price of a share of Common Stock on the Flip-in Date
times the Exchange Ratio in effect on the Flip-in Date, where in any case
set forth in (x) or (y) above the fair value of such debt or equity securi-
ties or other assets shall be as determined in good faith by the Board of
Directors of the Company, after consultation with a nationally recognized
investment banking firm.
3.2 Flip-over. (a) Prior to the Expiration Time, the
Company shall not enter into any agreement with respect to, consummate or
permit to occur any Flip-over Transaction or Event unless and until it
shall have entered into a supplemental agreement with the Flip-over Entity,
for the benefit of the holders of the Rights, providing that, upon
consummation or occurrence of the Flip-over Transaction or Event (i) each
Right shall thereafter constitute the right to purchase from the Flip-over
Entity, upon exercise thereof in accordance with the terms hereof, that
number of shares of Flip-over Stock of the Flip-over Entity having an
aggregate Market Price on the date of consummation or occurrence of such
Flip-over Transaction or Event equal to twice the Exercise Price for an
amount in cash equal to the Exercise Price (such right to be appropriately
adjusted in order to protect the interests of the holders of Rights
generally in the event that after such date of consummation or occur-
33
rence an event of a type analogous to any of the events described in
Section 2.4(a) or (b) shall have occurred with respect to the Flip-over
Stock) and (ii) the Flip-over Entity shall thereafter be liable for, and
shall assume, by virtue of such Flip-over Transaction or Event and such
supplemental agreement, all the obligations and duties of the Company
pursuant to this Agreement. The provisions of this Section 3.2 shall apply
to successive Flip-over Transactions or Events.
(b) Prior to the Expiration Time, unless the Rights will be
redeemed pursuant to Section 5.1 hereof in connection therewith, the
Company shall not enter into any agreement with respect to, consummate or
permit to occur any Flip-over Transaction or Event if at the time thereof
there are any rights, warrants or securities outstanding or any other
arrangements, agreements or instruments that would eliminate or otherwise
diminish in any material respect the benefits intended to be afforded by
this Rights Agreement to the holders of Rights upon consummation of such
transaction.
ARTICLE IV
THE RIGHTS AGENT
4.1 General. (a) The Company hereby appoints the Rights
Agent to act as agent for the Company in accordance with the terms and
conditions hereof, and the Rights Agent hereby accepts such appointment.
The Company agrees
34
to pay to the Rights Agent reasonable compensation for all services
rendered by it hereunder and, from time to time, on demand of the Rights
Agent, its reasonable expenses and counsel fees and other disbursements
incurred in the administration and execution of this Agreement and the
exercise and performance of its duties hereunder. The Company also agrees
to indemnify the Rights Agent for, and to hold it harmless against, any
loss, liability, or expense, incurred without negligence, bad faith or
willful misconduct on the part of the Rights Agent, for anything done or
omitted to be done by the Rights Agent in connection with the acceptance
and administration of this Agreement, including the costs and expenses of
defending against any claim of liability.
(b) The Rights Agent shall be protected and shall incur no
liability for or in respect of any action taken, suffered or omitted by it
in connection with its administration of this Agreement in reliance upon
any certificate for securities purchasable upon exercise of Rights, Rights
Certificate, certificate 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.
35
4.2 Merger or Consolidation or Change of Name of Rights
Agent. (a) Any corporation into which the Rights Agent or any successor
Rights Agent may be merged or with which it may be consolidated, or any
corporation resulting from any merger or consolidation to which the Rights
Agent or any successor Rights Agent is a party, or any corporation
succeeding to the shareholder services business of the Rights Agent or any
successor Rights Agent, will be the successor to the Rights Agent under
this Agreement without the execution or filing of any paper or any further
act on the part of any of the parties hereto, provided that such
corporation would be eligible for appointment as a successor Rights Agent
under the provisions of Section 4.4 hereof. In case at the time such
successor Rights Agent succeeds to the agency created by this Agreement any
of the Rights Certificates have been countersigned but not delivered, any
such successor Rights Agent may adopt the countersignature of the
predecessor Rights Agent and deliver such Rights Certificates so
countersigned; and in case at that time any of the Rights Certificates have
not been countersigned, any successor Rights Agent may countersign such
Rights Certificates either in the name of the predecessor Rights Agent or
in the name of the successor Rights Agent; and in all such cases such
Rights Certificates will have the full force provided in the Rights
Certificates and in this Agreement.
36
(b) In case at any time the name of the Rights Agent is
changed and at such time any of the Rights Certificates shall have been
countersigned but not delivered, the Rights Agent may adopt the
countersignature under its prior name and deliver Rights Certificates so
countersigned; and in case at that time any of the Rights Certificates
shall not have been countersigned, the Rights Agent may countersign such
Rights Certificates either in its prior name or in its changed name; and in
all such cases such Rights Certificates shall have the full force provided
in the Rights Certificates and in this Agreement.
4.3 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
Certificates, by their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel (who may
be legal counsel for the Company), and the opinion of such counsel will 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 deems it necessary or desirable that any fact or
matter be proved or established by the Company prior to taking or suffering
any action here-
37
under, 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 a person believed by the Rights
Agent to be the Chairman of the Board, the President or any Vice President
and by the Treasurer or any Assistant Treasurer or the Secretary or any
Assistant Secretary of the Company and delivered to the Rights Agent; and
such certificate will 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 will be liable hereunder only for its
own negligence, bad faith or willful misconduct.
(d) The Rights Agent will not be liable for or by reason of
any of the statements of fact or recitals contained in this Agreement or in
the certificates for securities purchasable upon exercise of Rights or the
Rights Certificates (except its countersignature thereof) or be required to
verify the same, but all such statements and recitals are and will be
deemed to have been made by the Company only.
(e) The Rights Agent will not be under any responsibility in
respect of the validity of this Agreement or the execution and delivery
hereof (except the due authorization, execution and delivery hereof by the
Rights Agent)
38
or in respect of the validity or execution of any certificate for
securities purchasable upon exercise of Rights or Rights Certificate
(except its countersignature thereof); nor will it be responsible for any
breach by the Company of any covenant or condition contained in this
Agreement or in any Rights Certificate; nor will it be responsible for any
change in the exercisability of the Rights (including the Rights becoming
void pursuant to Section 3.1(b) hereof) or any adjustment required under
the provisions of Section 2.4, 3.1 or 3.2 hereof or responsible for the
manner, method or amount of any such adjustment or the ascertaining of the
existence of facts that would require any such adjustment (except with
respect to the exercise of Rights after receipt of the certificate
contemplated by Section 2.4 describing any such adjustment); nor will it by
any act hereunder be deemed to make any representation or warranty as to
the authorization or reservation of any securities purchasable upon
exercise of Rights or any Rights or as to whether any securities
purchasable upon exercise of Rights will, when issued, be duly and validly
authorized, executed, issued and delivered and fully paid and nonassess-
able.
(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
per-
39
forming 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 person believed by the Rights Agent to be the Chairman of the
Board, the President or any Vice President or the Secretary or any
Assistant Secretary or the Treasurer or any Assistant Treasurer of the
Company, and to apply to such persons 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
person.
(h) The Rights Agent and any shareholder, director, officer
or employee of the Rights Agent may buy, sell or deal in Common Stock,
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
40
or agents, and the Rights Agent will not be answerable or accountable for
any act, default, neglect or misconduct of any such attorneys or agents or
for any loss to the Company resulting from any such act, default, neglect
or misconduct, provided reasonable care was exercised in the selection and
continued employment thereof.
4.4 Change of Rights Agent. The Rights Agent may resign and
be discharged from its duties under this Agreement upon 90 days' notice (or
such lesser notice as is acceptable to the Company) in writing mailed to
the Company and to each transfer agent of Common Stock by registered or
certified mail, and to the holders of the Rights in accordance with
Section 5.9. The Company may remove the Rights Agent upon 30 days' notice
in writing, mailed to the Rights Agent and to each transfer agent of the
Common Stock by registered or certified mail, and to the holders of the
Rights in accordance with Section 5.9. If the Rights Agent should resign
or be removed or otherwise become incapable of acting, the Company will
appoint a successor to the Rights Agent. If the Company fails to make such
appointment within a period of 30 days after 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 any Rights (which holder
shall, with such notice, submit such holder's Rights Certificate for
inspection by the Company), then the holder of any Rights may apply to any
41
court of competent jurisdiction for the appointment of a new Rights Agent.
Any successor Rights Agent, whether appointed by the Company or by such a
court, shall be a corporation organized and doing business under the laws
of the United States or of the State of West Virginia or any other State of
the United States, in good standing, which is authorized under such laws to
exercise the powers of the Rights Agent contemplated by this Agreement and
is subject to supervision or examination by federal or state authority and
which has at the time of its appointment as Rights Agent a combined capital
and surplus of at least $50,000,000. After appointment, the successor
Rights Agent will 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 will file notice thereof in writing with
the predecessor Rights Agent and each transfer agent of the Common Stock,
and mail a notice thereof in writing to the holders of the Rights. Failure
to give any notice provided for in this Section 4.4, however, or any defect
therein, shall not affect the legality or validity of the
42
resignation or removal of the Rights Agent or the appointment of the
successor Rights Agent, as the case may be.
ARTICLE V
MISCELLANEOUS
5.1 Redemption. (a) The Board of Directors of the Company
may, at its option, at any time prior to the close of business on the Flip-
in Date, elect to redeem all (but not less than all) the then outstanding
Rights at the Redemption Price and the Company, at its option, may pay the
Redemption Price either in cash or shares of Common Stock or other
securities of the Company deemed by the Board of Directors, in the exercise
of its sole discretion, to be at least equivalent in value to the
Redemption Price.
(b) Immediately upon the action of the Board of Directors of
the Company electing to redeem the Rights (or, if the resolution of the
Board of Directors electing to redeem the Rights states that the redemption
will not be effective until the occurrence of a specified future time or
event, upon the occurrence of such future time or event), without any
further action and without any notice, the right to exercise the Rights
will terminate and each Right will thereafter represent only the right to
receive the Redemption Price in cash or securities, as determined by the
Board of Directors. Promptly after the Rights are redeemed, the Company
shall give notice of such redemption to the Rights
43
Agent and the holders of the then outstanding Rights by mailing such notice
in accordance with Section 5.9.
5.2 Expiration. The Rights and this Agreement shall expire
at the Expiration Time and no Person shall have any rights pursuant to this
Agreement or any Right after the Expiration Time, except, if the Rights are
exchanged or redeemed, as provided in Section 3.1 or 5.1 hereof.
5.3 Issuance of New Rights Certificates. Notwithstanding any
of the provisions of this Agreement or of the Rights to the contrary, the
Company may, at its option, issue new Rights Certificates evidencing Rights
in such form as may be approved by its Board of Directors to reflect any
adjustment or change in the number or kind or class of shares of stock
purchasable upon exercise of Rights made in accordance with the provisions
of this Agreement. In addition, in connection with the issuance or sale of
shares of Common Stock by the Company following the Separation Time and
prior to the Expiration Time pursuant to the terms of securities
convertible or redeemable into shares of Common Stock or to options, in
each case issued or granted prior to, and outstanding at, the Separation
Time, the Company shall issue to the holders of such shares of Common
Stock, Rights Certificates representing the appropriate number of Rights in
connection with the issuance or sale of such shares of Common Stock;
provided, however, in each case, (i) no such Rights Certificate shall be
issued, if, and to
44
the extent that, the Company shall be advised by counsel that such issuance
would create a significant risk of material adverse tax consequences to the
Company or to the Person to whom such Rights Certificates would be issued,
(ii) no such Rights Certificates shall be issued if, and to the extent
that, appropriate adjustment shall have otherwise been made in lieu of the
issuance thereof, and (iii) the Company shall have no obligation to
distribute Rights Certificates to any Acquiring Person or Affiliate or
Associate of an Acquiring Person or any transferee of any of the foregoing.
5.4 Supplements and Amendments. The Company and the Rights
Agent may from time to time supplement or amend this Agreement without the
approval of any holders of Rights (i) prior to the close of business on the
Flip-in Date, in any respect and (ii) after the close of business on the
Flip-in Date, to make any changes that the Company may deem necessary or
desirable and which shall not materially adversely affect the interests of
the holders of Rights generally or in order to cure any ambiguity or to
correct or supplement any provision contained herein which may be incon-
sistent with any other provisions herein or otherwise defective. The
Rights Agent will duly execute and deliver any supplement or amendment
hereto requested by the Company which satisfies the terms of the preceding
sentence.
45
5.5 Fractional Shares. If the Company elects not to issue
certificates representing fractional shares upon exercise or redemption of
Rights, the Company shall, in lieu thereof, in the sole discretion of the
Board of Directors, either (a) evidence such fractional shares by
depositary receipts issued pursuant to an appropriate agreement between the
Company and a depositary selected by it, providing that each holder of a
depositary receipt shall have all of the rights, privileges and preferences
to which such holder would be entitled as a beneficial owner of such
fractional share, or (b) sell such shares on behalf of the holders of
Rights and pay to the registered holder of such Rights the appropriate
fraction of the price per share received upon such sale.
5.6 Rights of Action. Subject to the terms of this Agreement
(including Section 3.1(b)), rights of action in respect of this Agreement,
other than rights of action vested solely in the Rights Agent, are vested
in the respective holders of the Rights; and any holder of any Rights,
without the consent of the Rights Agent or of the holder of any other
Rights, may, on such holder's own behalf and for such holder's own benefit
and the benefit of other holders of Rights, 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 such holder's
Rights in the manner provided in such holder's
46
Rights Certificate and in this Agreement. Without limiting the foregoing
or any remedies available to the holders of Rights, it is specifically
acknowledged that the holders of Rights would not have an adequate remedy
at law for any breach of this Agreement and will be entitled to specific
performance of the obligations under, and injunctive relief against actual
or threatened violations of, the obligations of any Person subject to this
Agreement.
5.7 Holder of Rights Not Deemed a Shareholder. No holder, as
such, of any Rights shall be entitled to vote, receive dividends or be
deemed for any purpose the holder of shares or any other securities which
may at any time be issuable on the exercise of such Rights, nor shall
anything contained herein or in any Rights Certificate be construed to
confer upon the holder of any Rights, as such, any of the rights of a
shareholder of the Company or any right to vote for the election of
directors or upon any matter submitted to shareholders at any meeting
thereof, or to give or withhold consent to any corporate action, or to
receive notice of meetings or other actions affecting shareholders (except
as provided in Section 5.8 hereof), or to receive dividends or subscription
rights, or otherwise, until such Rights shall have been exercised or
exchanged in accordance with the provisions hereof.
5.8 Notice of Proposed Actions. In case the Company shall
propose after the Separation Time and prior to
47
the Expiration Time (i) to effect or permit occurrence of any Flip-over
Transaction or Event or (ii) to effect the liquidation, dissolution or
winding up of the Company, then, in each such case, the Company shall give
to each holder of a Right, in accordance with Section 5.9 hereof, a notice
of such proposed action, which shall specify the date on which such Flip-
over Transaction or Event, liquidation, dissolution, or winding up is to
take place, and such notice shall be so given at least 20 Business Days
prior to the date of the taking of such proposed action.
5.9 Notices. Notices or demands authorized or required by
this Agreement to be given or made by the Rights Agent or by the holder of
any Rights to or on the Company shall be sufficiently given or made if
delivered or sent by first-class mail, postage prepaid, addressed (until
another address is filed in writing with the Rights Agent) as follows:
One Valley Bancorp of West Virginia, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Secretary
Any notice or demand authorized or required by this Agreement to be given
or made by the Company or by the holder of any Rights to or on the Rights
Agent shall be sufficiently given or made if delivered or sent by first-
class mail,
48
postage prepaid, addressed (until another address is filed in writing with
the Company) as follows:
One Valley Bank, National Association
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: One Financial Place
Notices or demands authorized or required by this Agreement to be given or
made by the Company or the Rights Agent to or on the holder of any Rights
shall be sufficiently given or made if delivered or sent by first-class
mail, postage prepaid, addressed to such holder at the address of such
holder as it appears upon the registry books of the Rights Agent or, prior
to the Separation Time, on the registry books of the transfer agent for the
Common Stock. Any notice which is mailed in the manner herein provided
shall be deemed given, whether or not the holder receives the notice.
5.10 Suspension of Exercisability. To the extent that the
Company determines in good faith that some action will or need be taken
pursuant to Section 3.1 or to comply with federal or state securities laws,
the Company may suspend the exercisability of the Rights for a reasonable
period in order to take such action or comply with such laws. In the event
of any such suspension, the Company shall issue as promptly as practicable
a public announcement stating that the exercisability or exchangeability of
the
49
Rights has been temporarily suspended. Notice thereof pursuant to
Section 5.9 shall not be required.
Failure to give a notice pursuant to the provisions of this
Agreement shall not affect the validity of any action taken hereunder.
5.11 Costs of Enforcement. The Company agrees that if the
Company or any other Person the securities of which are purchasable upon
exercise of Rights fails to fulfill any of its obligations pursuant to this
Agreement, then the Company or such Person will reimburse the holder of any
Rights for the costs and expenses (including legal fees) incurred by such
holder in actions to enforce such holder's rights pursuant to any Rights or
this Agreement.
5.12 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.
5.13 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 holders of the Rights any legal or equitable right, remedy or
claim under this Agreement and this Agreement shall be for the sole and
exclusive benefit of the Company, the Rights Agent and the holders of the
Rights.
5.14 Determination and Actions by the Board of Directors, etc.
The Board of Directors of the Company shall
50
have the exclusive power and authority to administer this Agreement and to
exercise all rights and powers specifically granted to the Board 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) inter-
pret the provisions of this Agreement and (ii) make all determinations
deemed necessary or advisable for the administration of this Agreement.
All such actions, calculations, interpretations and determinations
(including, for purposes of clause (y) below, all omissions with respect to
the foregoing) which are done or made by the Board in good faith, shall
(x) be final, conclusive and binding on the Company, the Rights Agent, the
holders of the Rights and all other parties, and (y) not subject the Board
of Directors of the Company to any liability to the holders of the Rights.
5.15 Descriptive Headings. Descriptive headings appear herein
for convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
5.16 Governing Law. THIS AGREEMENT AND EACH RIGHT ISSUED
HEREUNDER SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE
OF WEST VIRGINIA 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.
51
5.17 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 con-
stitute but one and the same instrument.
5.18 Severability. If any term or provision hereof or the
application thereof to any circumstance shall, in any jurisdiction and to
any extent, be invalid or unenforceable, such term or provision shall be
ineffective as to such jurisdiction to the extent of such invalidity or
unenforceability without invalidating or rendering unenforceable the
remaining terms and provisions hereof or the application of such term or
provision to circumstances other than those as to which it is held invalid
or unenforceable.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first above written.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇, INC.
By: /s/ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President and Chief Executive
Officer
ONE VALLEY BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and Chief Executive
Officer
1
EXHIBIT A
[Form of Rights Certificate]
Certificate No. W- _______ Rights
THE RIGHTS ARE SUBJECT TO REDEMPTION OR MANDATORY EXCHANGE, AT THE
OPTION OF THE COMPANY, ON THE TERMS SET FORTH IN THE RIGHTS
AGREEMENT. RIGHTS BENEFICIALLY OWNED BY ACQUIRING PERSONS OR
AFFILIATES OR ASSOCIATES THEREOF (AS SUCH TERMS ARE DEFINED IN THE
RIGHTS AGREEMENT) OR TRANSFEREES OF ANY OF THE FOREGOING WILL BE
VOID.
Rights Certificate
ONE VALLEY BANCORP OF WEST VIRGINIA, INC.
This certifies that ____________________, or registered
assigns, is the registered holder of the number of Rights set forth above,
each of which entitles the registered holder thereof, subject to the terms,
provisions and conditions of the Shareholder Protection Rights Agreement,
dated as of October 18, 1995 (as amended from time to time, the "Rights
Agreement"), between One Valley Bancorp of West Virginia, Inc., a West
Virginia corporation (the "Company"), and One Valley Bank, National
Association, as Rights Agent (the "Rights Agent", which term shall include
any successor Rights Agent under the Rights Agreement), to purchase from
the Company at any time after the Separation Time (as such term is defined
in the Rights Agreement) and prior to the close of business on October 18,
2005, one one-hundredth of a fully paid share of Participating Preferred
Stock, par value $10.00 per share (the "Preferred Stock"), of the Company
(subject to adjustment as provided in the Rights
2
Agreement) at the Exercise Price referred to below, upon presentation and
surrender of this Rights Certificate with the Form of Election to Exercise
duly executed at the principal office of the Rights Agent in Charleston,
West Virginia. The Exercise Price shall initially be $100 per Right and
shall be subject to adjustment in certain events as provided in the Rights
Agreement.
In certain circumstances described in the Rights Agreement, the
Rights evidenced hereby may entitle the registered holder thereof to
purchase securities of an entity other than the Company or securities or
assets of the Company other than Preferred Stock, all as provided in the
Rights Agreement.
This Rights Certificate is subject to all of the terms,
provisions and conditions of the Rights Agreement, which terms, provisions
and conditions are hereby incorporated herein by reference and made a part
hereof and to which Rights Agreement reference is hereby made for a full
description of the rights, limitations of rights, obligations, duties and
immunities hereunder of the Rights Agent, the Company and the holders of
the Rights Certificates. Copies of the Rights Agreement are on file at the
principal office of the Company and are available without cost upon written
request.
This Rights Certificate, with or without other Rights
Certificates, upon surrender at the office of the
3
Rights Agent designated for such purpose, may be exchanged for another
Rights Certificate or Rights Certificates of like tenor evidencing an
aggregate number of Rights equal to the aggregate number of Rights
evidenced by the Rights Certificate or Rights Certificates surrendered. If
this Rights Certificate shall be exercised in part, the registered holder
shall be entitled to receive, upon surrender hereof, another Rights
Certificate or Rights Certificates for the number of whole Rights not
exercised.
Subject to the provisions of the Rights Agreement, each Right
evidenced by this Certificate may be (a) redeemed by the Company under
certain circumstances, at its option, at a redemption price of $0.01 per
Right or (b) exchanged by the Company under certain circumstances, at its
option, for one share of Common Stock or one one-hundredth of a share of
Preferred Stock per Right (or, in certain cases, other securities or assets
of the Company), subject in each case to adjustment in certain events as
provided in the Rights Agreement.
No holder of this Rights Certificate, as such, shall be
entitled to vote or receive dividends or be deemed for any purpose the
holder of any securities which may at any time be issuable on the exercise
hereof, nor shall anything contained in the Rights Agreement or herein be
construed to confer upon the holder hereof, as such, any of the rights of a
shareholder of the Company or any right to vote
4
for the election of directors or upon any matter submitted to shareholders
at any meeting thereof, or to give or withhold consent to any corporate
action, or to receive notice of meetings or other actions affecting share-
holders (except as provided in the Rights Agreement), or to receive divi-
dends or subscription rights, or otherwise, until the Rights evidenced by
this Rights Certificate shall have been exercised or exchanged as provided
in the Rights Agreement.
This Rights Certificate shall not be valid or obligatory for
any purpose until it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the
Company and its corporate seal.
Date: ____________
ATTEST: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, INC.
___________________________ By______________________
Secretary
Countersigned:
ONE VALLEY BANK, NATIONAL ASSOCIATION
By____________________________
Authorized Signature
1
[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer this Rights Certificate.)
FOR VALUE RECEIVED ________________________ hereby
sells, assigns and transfers unto ___________________
(Please print name
_____________________________________________________
and address of transferee)
this Rights Certificate, together with all right, title and interest
therein, and does hereby irrevocably constitute and appoint _______________
Attorney, to transfer the within Rights Certificate on the books of the
within-named Company, with full power of substitution.
Dated: _______________, 19__
Signature Guaranteed: _________________________
Signature
(Signature must correspond to
name as written upon the face of
this Rights Certificate in every
particular, without alteration or
enlargement or any change
whatsoever)
Signatures must be guaranteed by an eligible guarantor
institution (banks, stockbrokers, savings and loan associations and credit
unions with membership in an approved signature guarantee Medallion
program), pursuant to SEC Rule 17Ad-15.
------------------------------------------------------------
(To be completed if true)
2
The undersigned hereby represents, for the benefit of all holders of Rights
and shares of Common Stock, that the Rights evidenced by this Rights
Certificate are not, and, to the knowledge of the undersigned, have never
been, Beneficially Owned by an Acquiring Person or an Affiliate or
Associate thereof (as defined in the Rights Agreement).
_________________________
Signature
------------------------------------------------------------
NOTICE
In the event the certification set forth above is not completed
in connection with a purported assignment, the Company will deem the
Beneficial Owner of the Rights evidenced by the enclosed Rights Certificate
to be an Acquiring Person or an Affiliate or Associate thereof (as defined
in the Rights Agreement) or a transferee of any of the foregoing and
accordingly will deem the Rights evidenced by such Rights Certificate to be
void and not transferable or exercisable.
1
[To be attached to each Rights Certificate]
FORM OF ELECTION TO EXERCISE
(To be executed if holder desires to
exercise the Rights Certificate.)
TO: ONE VALLEY BANCORP OF WEST VIRGINIA, INC.
The undersigned hereby irrevocably elects to exercise
_______________________ whole Rights represented by the attached Rights
Certificate to purchase the shares of Participating Preferred Stock
issuable upon the exercise of such Rights and requests that certificates
for such shares be issued in the name of:
___________________________________
Address:
___________________________________
Social Security or Other Taxpayer
Identification Number:
If such number of Rights shall not be all the Rights evidenced by this
Rights Certificate, a new Rights Certificate for the balance of such Rights
shall be registered in the name of and delivered to:
___________________________________
Address:
___________________________________
Social Security or Other Taxpayer
Identification Number:
Dated: _______________, 19__
Signature Guaranteed: _________________________
Signature
(Signature must correspond to
name as written upon the face of
the attached Rights Certificate
in every particular, without
alteration or enlargement or
any change whatsoever)
2
Signatures must be guaranteed by a member firm of a registered
national securities exchange, a member of the National Association of
Securities Dealers, Inc., or a commercial bank or trust company having an
office or correspondent in the United States.
------------------------------------------------------------
(To be completed if true)
The undersigned hereby represents, for the benefit of all
holders of Rights and shares of Common Stock, that the Rights evidenced by
the attached Rights Certificate are not, and, to the knowledge of the
undersigned, have never been, Beneficially Owned by an Acquiring Person or
an Affiliate or Associate thereof (as defined in the Rights Agreement).
_________________________
Signature
------------------------------------------------------------
NOTICE
In the event the certification set forth above is not completed
in connection with a purported exercise, the Company will deem the
Beneficial Owner of the Rights evidenced by the attached Rights Certificate
to be an Acquiring Person or an Affiliate or Associate thereof (as defined
in the Rights Agreement) or a transferee of any of the foregoing and
accordingly will deem the Rights evidenced by such Rights Certificate to be
void and not transferable or exercisable.
1
EXHIBIT B
FORM OF RESOLUTIONS OF DESIGNATION
OF PARTICIPATING PREFERRED STOCK OF
ONE VALLEY BANCORP OF WEST VIRGINIA, INC.
Pursuant to Section 31-1-79(b) of the
West Virginia Corporation Act
We, the undersigned, ____________________ and
____________________, the ____________________, and __________,
respectively, of One Valley Bancorp of West Virginia, Inc., a West Virginia
corporation (the "Corporation"), do hereby certify as follows:
Pursuant to authority granted by Article VI of the Articles of
Incorporation of the Corporation and in accordance with the provisions of
Section 31-1-79(b) of the West Virginia Corporation Act, the Board of
Directors of the Corporation has adopted the following resolutions fixing
the designation and certain terms, powers, preferences and other rights of
a new series of the Corporation's Preferred Stock, par value $10.00 per
share, and certain qualifications, limitations and restrictions thereon:
RESOLVED, that there is hereby established a series of Pre-
ferred Stock, par value $10.00 per share, of the Corporation, and the
designation and certain terms, powers, preferences and other rights
of the shares of such series, and certain qualifications, limitations
and restrictions thereon, are hereby fixed as follows:
(i) The distinctive serial designation of this series
shall be "Participating Preferred Stock" (hereinafter called
"this Series"). Each share of this Series shall be identical
in all respects with the other shares of this Series except as
to
2
the dates from and after which dividends thereon shall be
cumulative.
(ii) The number of shares in this Series shall initially be
_______, which number may from time to time be increased or
decreased (but not below the number then outstanding) by the
Board of Directors. Shares of this Series purchased by the
Corporation shall be cancelled and shall revert to authorized
but unissued shares of Preferred Stock undesignated as to
series. Shares of this Series may be issued in fractional
shares, which fractional shares shall entitle the holder, in
proportion to such holder's fractional share, to all rights of
a holder of a whole share of this Series.
(iii) The holders of full or fractional shares of this
Series shall be entitled to receive, when and as declared by
the Board of Directors, but only out of funds legally available
therefor, dividends, (A) on each date that dividends or other
distributions (other than dividends or distributions payable in
Common Stock of the Corporation) are payable on or in respect
of Common Stock comprising part of the Reference Package (as
defined below), in an amount per whole share of this Series
equal to the aggregate amount of dividends or other
distributions (other than dividends or distributions payable in
Common Stock of the Corporation) that would be payable on such
date to a holder of the Reference Package and (B) on the last
day of March, June, September and December in each year, in an
amount per whole share of this Series equal to the excess (if
any) of $____* over the aggregate dividends paid per whole
share of this Series during the three month period ending on
such last day. Each such dividend shall be paid to the holders
of record of shares of this Series on the date, not exceeding
sixty days preceding such dividend or distribution payment
date, fixed for the purpose by the Board of Directors in
advance of payment of each particular dividend or
* Insert an amount equal to 1/4 of 1% of the Exercise
Price divided by the number of shares of Preferred
Stock purchasable upon exercise of one Right (i.e., a
guaranteed 1% dividend). Where a Right is exercisable
for one one-hundredth of a share, this simplifies to
one-fourth the Exercise Price.
3
distribution. Dividends on each full and each fractional share
of this Series shall be cumulative from the date such full or
fractional share is originally issued; provided that any such
full or fractional share originally issued after a dividend
record date and on or prior to the dividend payment date to
which such record date relates shall not be entitled to receive
the dividend payable on such dividend payment date or any
amount in respect of the period from such original issuance to
such dividend payment date.
The term "Reference Package" shall initially mean
100 shares of Common Stock, par value $10.00 per share ("Common
Stock"), of the Corporation. In the event the Corporation
shall at any time after the close of business on ____________,
19__* (A) declare or pay a dividend on any Common Stock
payable in Common Stock, (B) subdivide any Common Stock or
(C) combine any Common Stock into a smaller number of shares,
then and in each such case the Reference Package after such
event shall be the Common Stock that a holder of the Reference
Package immediately prior to such event would hold thereafter
as a result thereof.
Holders of shares of this Series shall not be
entitled to any dividends, whether payable in cash,
property or stock, in excess of full cumulative
dividends, as herein provided on this Series.
So long as any shares of this Series are
outstanding, no dividend (other than a dividend in Common Stock
or in any other stock ranking junior to this Series as to
dividends and upon liquidation) shall be declared or paid or
set aside for payment or other distribution declared or made
upon the Common Stock or upon any other stock ranking junior to
this Series as to dividends or upon liquidation, nor shall any
Common Stock nor any other stock of the Corporation ranking
junior to or on a parity with this Series as to dividends
* For a certificate of designation relating to shares to
be issued pursuant to Section 2.3 of the Rights Agree-
ment, insert the Separation Time. For a certificate of
designation relating to shares to be issued pursuant to
Section 3.1(d) of the Rights Agreement, insert the
Flip-in Date.
4
or upon liquidation be redeemed, purchased or otherwise
acquired for any consideration (or any moneys be paid to or
made available for a sinking fund for the redemption of any
shares of any such stock) by the Corporation (except by
conversion into or exchange for stock of the Corporation rank-
ing junior to this Series as to dividends and upon
liquidation), unless, in each case, the full cumulative
dividends (including the dividend to be due upon payment of
such dividend, distribution, redemption, purchase or other
acquisition) on all outstanding shares of this Series shall
have been, or shall contemporaneously be, paid.
(iv) In the event of any merger, consolidation,
reclassification or other transaction in which the shares of
Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such
case the shares of this Series shall at the same time be
similarly exchanged or changed in an amount per whole share
equal to the aggregate amount of stock, securities, cash and/or
any other property (payable in kind), as the case may be, that
a holder of the Reference Package would be entitled to receive
as a result of such transaction.
(v) In the event of any liquidation, dissolution or
winding up of the affairs of the Corporation, whether voluntary
or involuntary, the holders of full and fractional shares of
this Series shall be entitled, before any distribution or
payment is made on any date to the holders of the Common Stock
or any other stock of the Corporation ranking junior to this
Series upon liquidation, to be paid in full an amount per whole
share of this Series equal to the greater of (A) $__________*
or (B) the aggregate amount distributed or to be distributed
prior to such date in connection with such liquidation, disso-
lution or winding up to a holder of the Reference Package (such
greater amount being hereinafter referred to as the
"Liquidation Preference"), together with accrued dividends to
such distri-
* Insert an amount equal to 100 times the Exercise Price
in effect as of the Separation Time. Also note that
the "100" in the footnote should be changed if the
number of shares in the Reference Package (see p. 3) is
other than 100.
5
bution or payment date, whether or not earned or declared. If
such payment shall have been made in full to all holders of
shares of this Series, the holders of shares of this Series as
such shall have no right or claim to any of the remaining
assets of the Corporation.
In the event the assets of the Corporation
available for distribution to the holders of shares of this
Series upon any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, shall be
insufficient to pay in full all amounts to which such holders
are entitled pursuant to the first paragraph of this
Section (v), no such distribution shall be made on account of
any shares of any other class or series of Preferred Stock
ranking on a parity with the shares of this Series upon such
liquidation, dissolution or winding up unless proportionate
distributive amounts shall be paid on account of the shares of
this Series, ratably in proportion to the full distributable
amounts for which holders of all such parity shares are
respectively entitled upon such liquidation, dissolution or
winding up.
Upon the liquidation, dissolution or winding up of
the Corporation, the holders of shares of this Series then
outstanding shall be entitled to be paid out of assets of the
Corporation available for distribution to its shareholders all
amounts to which such holders are entitled pursuant to the
first paragraph of this Section (v) before any payment shall be
made to the holders of Common Stock or any other stock of the
Corporation ranking junior upon liquidation to this Series.
For the purposes of this Section (v), the
consolidation or merger of, or binding share exchange by, the
Corporation with any other corporation shall not be deemed to
constitute a liquidation, dissolution or winding up of the
Corporation.
(vi) The shares of this Series shall not be redeemable.
(vii) In addition to any other vote or consent of
shareholders required by law or by the Restated Certificate of
Incorporation, as amended, of the
6
Corporation, each whole share of this Series shall, on any
matter, vote as a class with any other capital stock comprising
part of the Reference Package and voting on such matter and
shall have the number of votes thereon that a holder of the
Reference Package would have.
IN WITNESS WHEREOF, the undersigned have signed and attested
this certificate on the ____ day of _________, 199_.
_________________________________
Attest:
_________________________