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INTERGRAPH CORPORATION
and
COMPUTERSHARE INVESTOR SERVICES, LLC
AMENDED AND RESTATED RIGHTS AGREEMENT
Dated March 5, 2002
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TABLE OF CONTENTS
Page
RECITALS 1
Section 1. Certain Definitions 2
Section 2. Appointment of Rights Agent 9
Section 3. Issue of Right Certificates 10
Section 4. Form of Right Certificates 11
Section 5. Countersignature and Registration 12
Section 6. Transfer, Split Up, Combination and Exchange
of Right Certificates; Mutilated, Destroyed,
Lost or Stolen Right Certificates. 13
Section 7. Exercise of Rights; Purchase Price; Expiration
Date of Rights. 14
Section 8. Cancellation and Destruction of Right Certificates 16
Section 9. Company Covenants Concerning Securities and Rights 17
Section 10. Record Date 19
Section 11. Adjustment of Purchase Price, Number and Kind of
Securities or Number of Rights 20
Section 12. Certificate of Adjusted Purchase Price or Number
of Securities 32
Section 13. Consolidation, Merger or Sale or Transfer of
Assets or Earning Power 33
Section 14. Fractional Rights and Fractional Securities 37
Section 15. Rights of Action 38
Section 16. Agreement of Rights Holders 39
Section 17. Right Certificate Holder Not Deemed a Stockholder 40
Section 18. Concerning the Rights Agent 41
Section 19. Merger or Consolidation or Change of Name of
Rights Agent 42
Section 20. Duties of Rights Agent 43
Section 21. Change of Rights Agent 46
Section 22. Issuance of New Right Certificates 47
Section 23. Redemption 48
Section 24. Notice of Certain Events 49
Section 25. Notices 50
Section 26. Supplements and Amendments 51
Section 27. Exchange 52
Section 28. Successors; Certain Covenants 54
Section 29. Benefits of this Agreement 54
Section 30. Severability 54
Section 31. Governing Law 55
Section 32. Counterparts 55
Section 33. Descriptive Headings 55
AMENDED AND RESTATED RIGHTS AGREEMENT
This AMENDED AND RESTATED RIGHTS AGREEMENT, dated March 5,
2002 (this "Agreement"), is made and entered into by and between
Intergraph Corporation, a Delaware corporation (the "Company"),
and Computershare Investor Services, LLC, a limited liability
company organized under the laws of the State of Delaware (the
"Rights Agent").
RECITALS
WHEREAS, on August 25, 1993, the Board of Directors of the
Company authorized and declared a dividend distribution of one
right ("Right") for each share of common stock, par value $.10
per share, of the Company outstanding as of the Close of Business
(as hereinafter defined) on September 7, 1993 (the "Record
Date"), each Right initially representing the right to purchase
one Common Share (as hereinafter defined), upon the terms and
subject to the conditions herein set forth, and further
authorized and directed the issuance of one Right with respect to
each Common Share (as hereinafter defined) issued or delivered by
the Company (whether originally issued or delivered from the
Company's treasury) after the Record Date but prior to the
earlier of the Distribution Date (as hereinafter defined) and the
Expiration Date (as hereinafter defined);
WHEREAS, the Company and ▇▇▇▇▇▇ Trust and Savings Bank, an
Illinois banking corporation (the "Prior Rights Agent") entered
into that certain original Rights Agreement dated August 25,
1993;
WHEREAS, the Company and the Prior Rights Agent entered into
that certain Amendment No. 1 to the Rights Agreement dated as of
March 16, 1999;
WHEREAS, the Rights Agent is the successor-in-interest to
the Prior Rights Agent; and
WHEREAS, on March 4, 2002, the Board of Directors determined
that it was desirable and in the best interest of the Company and
its shareholders that the original Rights Agreement, as amended,
should be further amended and restated as set forth herein;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein set forth, the parties hereby agree as
follows:
Section 1. Certain Definitions. For purposes of this
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Agreement, the following terms shall have the meanings indicated:
(a) "Acquiring Person" shall mean (i) any Person (other than
the Company or any Subsidiary of the Company or any employee
benefit or stock ownership plan of the Company or of any
Subsidiary of the Company or any Person holding Common Shares
for or pursuant to the terms of any such plan or for the purpose
of funding any such plan or funding other employee benefits for
employees of the Company or of any Subsidiary (as hereinafter
defined)) who or which, together with all Affiliates and
Associates of such Person, shall be the Beneficial Owner of 15%
or more of the Common Shares then outstanding, or (ii) any
Adverse Person; provided, however, that such a Person shall not
be deemed to have become an "Acquiring Person" solely as a result
of a reduction in the number of Common Shares outstanding unless
and until (i) such time as such Person or any Affiliate or
Associate of such Person shall thereafter become the Beneficial
Owner of any additional Common Shares, other than as a result of
a stock dividend, stock split or similar transaction effected by
the Company in which all holders of Common Shares are treated
equally, or (ii) any other Person who is the Beneficial Owner of
any Common Shares shall thereafter become an Affiliate or
Associate of such Person; and further provided, however, that if
the Board of Directors of the Company determines in good faith
that a Person who would otherwise be an "Acquiring Person" has
become such inadvertently, and such Person divests as promptly
as practicable a sufficient number of Common Shares so that such
Person would no longer be an "Acquiring Person", then such Person
shall not be deemed to be an "Acquiring Person" for any purposes
of this Agreement.
(b) "Adverse Person" shall mean any person declared by the
Board of Directors to be an Adverse Person after (i) a
determination by the Board of Directors that such Person, alone
or together with its Affiliates and Associates, has become the
Beneficial Owner of 10% or more of the Common Shares then
outstanding; and (ii) a determination by the Board of Directors,
after reasonable inquiry and investigation (including such
consultation, if any, with such persons as the directors shall
deem appropriate), that:
(A) such Beneficial Ownership by such Person is
intended to, is reasonably likely to, or will, either
cause the Company to repurchase the Common Shares
beneficially owned by such Person or cause pressure on
the Company to take action or enter into a transaction
or series of transactions that would provide such
Person with short-term financial gain under
circumstances where the Board of Directors determines
that the best long-term interests of the Company and
its shareholders, but for the actions and possible
actions of such Person, would not be served by taking
such action or entering into such transactions or
series of transactions at that time; or
(B) such Beneficial Ownership is causing or
reasonably likely to cause a material adverse impact
(including, but not limited to, impairment of
relationships with customers or impairment of the
Company's ability to maintain its competitive position)
on the business or prospects of the Company; provided,
however, that the Board of Directors may not declare a
Person to be an Adverse Person if, prior to the time
that such Person acquired 10% or more of the Common
Shares, such Person provided to the Board of Directors
a written statement of such Person's acquisition of
such Common Shares, together with any other information
reasonably requested of such Person by the Board of
Directors, and the Board of Directors, based on such
statement and reasonable inquiry and investigation
(including such consultation, if any, with such persons
as the directors shall deem appropriate), determines
to notify and notifies such Person in writing that it
will not declare such Person to be an Adverse Person;
and provided, further, that the Board of Directors
may expressly condition in any manner a determination
not to declare a Person an Adverse Person on such
conditions as the Board of Directors may select,
including, without limitation, that such Person shall
not acquire more than a specified amount of Common
Shares and/or that such Person shall not take actions
inconsistent with the purposes and intentions disclosed
by such Person in the statement provided by such Person
to the Board of Directors. In the event that the
Board of Directors should at any time determine, upon
reasonable inquiry and investigation (including
consultation with such persons as the directors shall
deem appropriate), that such Person has not met or
complied with any condition specified by the Board of
Directors, the Board of Directors may at any time
thereafter declare such Person to be an Adverse Person.
No delay or failure by the Board of Directors to
declare a Person to be an Adverse Person shall in any
way waive or otherwise affect the power of the Board
of Directors subsequently to declare a Person to be an
Adverse Person.
(c) "Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General
Rules and Regulations under the Exchange Act, as in effect on
the date of this Agreement.
(d) A Person shall be deemed the "Beneficial Owner" of,
and to "beneficially own," any securities:
(i) which such Person or any of such Person's
Affiliates or Associates, directly or indirectly, has the
right to acquire (whether such ight is exercisable
immediately or only after the passage of time) pursuant to
any agreement, arrangement or understanding (whether or not
in writing), or upon the exercise of conversion rights,
exchange rights, rights, warrants or options, or otherwise
(in each case, other than upon exercise or exchange of the
Rights); provided, however, that a Person shall not be
deemed the Beneficial Owner of, or to beneficially own,
securities tendered pursuant to a tender or exchange offer
made by or on behalf of such Person or any of such Person's
Affiliates or Associates until such tendered securities are
accepted for purchase or exchange; or
(ii) which such Person or any of such Person's
Affiliates or Associates, directly or indirectly, has the
right to vote or dispose of, including pursuant to any
agreement, arrangement or understanding (whether or not in
writing); or
(iii) which are beneficially owned, directly or
indirectly, by any other Person (or any Affiliate or
Associate thereof) with which such Person (or any of such
Person's Affiliates or Associates) has any agreement,
arrangement or understanding (whether or not in writing)
with respect to acquiring, holding, voting or disposing of
any voting securities of the Company;
provided, however, that a Person shall not be deemed the
Beneficial Owner of, or to beneficially own, any security (A) if
such Person has the right to vote such security pursuant
to an agreement, arrangement or understanding (whether or not in
writing) which (1) arises solely from a revocable proxy given to
such Person in response to a public proxy or consent solicitation
made pursuant to, and in accordance with, the General Rules and
Regulations under the Exchange Act and (2) is not also then
reportable by such Person on Schedule 13D under the Exchange Act
(or any comparable or successor report), or (B) if such
beneficial ownership arises solely as a result of such Person's
status as a "clearing agency," as defined in Section 3(a)(23) of
the Exchange Act; and provided, further, that nothing in this
paragraph (d) shall cause a Person engaged in business as an
underwriter of securities to be the Beneficial Owner of, or to
beneficially own, any securities of the Company acquired through
such Person's participation in good faith in a firm commitment
underwriting registered under the Securities Act until the
expiration of 40 calendar days after the date of such
acquisition, or such later date as the Board of Directors of the
Company may determine in any specific case.
(e) "Business Day" shall mean any day other than a Saturday,
Sunday or a day on which the New York Stock Exchange or banking
institutions in the State of Illinois (or such other state in
which the principal office of the Rights Agent is located) are
authorized or obligated by law or executive order to close.
(f) "Close of Business" on any given date shall mean
5:00 P.M., Chicago time, on such date; provided, however, that if
such date is not a Business Day it shall mean 5:00 P.M., Chicago
time, on the next succeeding Business Day.
(g) "Common Shares" when used with reference to the Company
shall mean the common stock, par value $.10 per share, of the
Company; provided, however, that, if the Company is the
continuing or surviving corporation in a transaction described in
Section 11(a)(ii) or Section 13(a)(ii) hereof, "Common Shares"
when used with reference to the Company shall mean the capital
stock or equity security with the greatest aggregate voting power
of the Company. "Common Shares" when used with reference to any
Person other than the Company, including an Issuer, shall mean
the capital stock of such Person with the greatest aggregate
voting power of such Person or the equity securities or other
equity interest having power to control or direct the management
of such Person.
(h) "Distribution Date" shall mean the earlier of: (i) the
Close of Business on the tenth calendar day after the Share
Acquisition Date (or, if the tenth day after the Share
Acquisition Date occurs before the Record Date, the Close of
Business on the Record Date), and (ii) the Close of Business on
the tenth Business Day (or such later date as may be specified by
the Board of Directors of the Company) after the date of the
commencement of a tender or exchange offer by any Person (other
than the Company or any Subsidiary of the Company or any employee
benefit or stock ownership plan of the Company or of any
Subsidiary of the Company or any Person holding Common Shares for
or pursuant to the terms of any such plan or for the purpose of
funding any such plan or funding other employee benefits for
employees of the Company or of any Subsidiary), within the
meaning of Rule 14d-2 of the General Rules and Regulations under
the Exchange Act if upon the consummation thereof such Person
would become an Acquiring Person.
(i) "Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended.
(j) "Expiration Date" shall mean the earliest of (i) the
Close of Business on the Final Expiration Date, (ii) the time at
which the Rights are redeemed as provided in Section 23 hereof,
and (iii) the time at which all exercisable Rights are exchanged
as provided in Section 27 hereof.
(k) "Final Expiration Date" shall mean March 5, 2012.
(l) "Flip-in Event" shall mean any event described in
clauses (A) or (B) of Section 11(a)(ii) hereof.
(m) "Flip-over Event" shall mean any event described in
subsections (i), (ii) or (iii) of Section 13(a) hereof.
(n) "Issuer" shall have the meaning set forth in Section
13(b) hereof.
(o) "NASDAQ" shall mean the National Association of
Securities Dealers, Inc. Automated Quotation System.
(p) "Person" shall mean any individual, firm, corporation,
partnership or other entity, and shall include any successor (by
merger or otherwise) of such entity.
(q) "Purchase Price" from and after the date of this
Agreement, shall mean initially $65.00 per Common Share and shall
be subject to adjustment from time to time as provided in this
Agreement.
(r) "Redemption Price" shall mean $0.01 per Right, subject
to adjustment by resolution of the Board of Directors of the
Company to reflect any stock split, stock dividend or similar
transaction occurring after the date hereof.
(s) "Right" shall have the meaning set forth in the
Recitals to this Agreement.
(t) "Right Certificates" shall mean certificates
evidencing the Rights, in substantially the form of Exhibit A
attached hereto.
(u) "Rights Agent" shall mean Computershare Investor
Services, LLC, unless and until a successor Rights Agent shall
have become such pursuant to the terms of this Agreement, and
thereafter, "Rights Agent" shall mean such successor Rights
Agent.
(v) "Securities Act" shall mean the Securities Act of
1933, as amended.
(w) "Share Acquisition Date" shall mean the first date of
public announcement by the Company or an Acquiring Person (by
press release, filing made with the Securities and Exchange
Commission pursuant to Section 13(d) under the Exchange Act or
pursuant to other applicable law or otherwise) that an
Acquiring Person has become such.
(x) "Subsidiary" when used with reference to any Person
shall mean any corporation or other entity of which a majority
of the voting power of the voting equity securities or equity
interests is owned, directly or indirectly, by such Person;
provided, however, that for purposes of Section 13(b) hereof,
"Subsidiary" when used with reference to any Person shall mean
any corporation or other entity of which at least 20% of the
voting power of the voting equity securities or equity interests
is owned, directly or indirectly, by such Person.
(y) "Summary of Rights to Purchase Common Shares" shall
mean the Summary of Rights to Purchase Common Shares, in
substantially the form of Exhibit B attached hereto.
(z) "Trading Day" shall mean any day on which the principal
national securities exchange on which the Common Shares are
listed or admitted to trading is open for the transaction of
business or, if the Common Shares are not listed or admitted to
trading on any national securities exchange, a Business Day.
(aa) "Triggering Event" shall mean any Flip-in Event or
Flip-over Event.
Section 2. Appointment of Rights Agent. The Company
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hereby appoints the Rights Agent to act as agent for the Company
and the holders of the Rights (who, in accordance with Section
3 hereof, shall also be, prior to the Distribution Date, the
holders of the Common Shares) in accordance with the terms and
conditions hereof, and the Rights Agent hereby accepts such
appointment and hereby certifies that it complies with the
requirements of NASDAQ governing transfer agents and registrars.
The Company may from time to time act as Co-Rights Agent or
appoint such Co-Rights Agents as it may deem necessary or
desirable. Any actions which may be taken by the Rights Agent
pursuant to the terms of this Agreement may be taken by any such
Co-Rights Agent. To the extent that any Co-Rights Agent takes
any action pursuant to this Agreement, such Co-Rights Agent shall
be entitled to all of the rights and protections of, and subject
to all of the applicable duties and obligations imposed upon, the
Rights Agent pursuant to the terms of this Agreement.
Section 3. Issue of Right Certificates.
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(a) Until the Distribution Date, (i) the Rights shall be
evidenced by the certificates representing Common Shares
registered in the names of the record holders thereof (which
certificates representing Common Shares shall also be deemed to
be Right Certificates), together with a copy of the Summary of
Rights, (ii) the Rights shall be transferable only in connection
with the transfer of the underlying Common Shares, and (iii) the
surrender for transfer of any certificates evidencing Common
Shares in respect of which Rights have been issued, with or
without a copy of the Summary of Rights, shall also constitute
the transfer of the Rights associated with the Common Shares
evidenced by such certificates.
(b) As promptly as practicable after the execution of this
Agreement, the Company shall send a copy of the Summary of Rights
by first-class, postage prepaid mail, to each record holder of
Common Shares as of the close of business on the Record Date, at
the address of such holder shown on the records of the Company as
of such date.
(c) Rights shall be issued by the Company in respect of all
Common Shares (other than Common Shares issued upon the exercise
or exchange of any Right) issued or delivered by the Company
(whether originally issued or delivered from the Company's
treasury) after the Record Date but prior to the earlier of the
Distribution Date and the Expiration Date. Certificates
evidencing such Common Shares shall have stamped on, impressed
on, printed on, written on or otherwise affixed to them the
following legend or such similar legend as the Company may deem
appropriate and as is not inconsistent with the provisions of
this Agreement, or as may be required to comply with any
applicable law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange or
transaction reporting system on which the Common Shares may from
time to time be listed or quoted, or to conform to usage:
This Certificate also evidences and entitles the holder
hereof to certain Rights as set forth in an Amended and Restated
Rights Agreement between Intergraph Corporation and Computershare
Investor Services, LLC, dated March 5, 2002, (the "Rights
Agreement"), the terms of which are hereby incorporated herein by
reference and a copy of which is on file at the principal
executive offices of Intergraph Corporation. Under certain
circumstances, as set forth in the Rights Agreement, such Rights
may be redeemed, may be exchanged, may expire, may be amended or
may be evidenced by separate certificates and no longer be
evidenced by this Certificate. Intergraph Corporation will mail
to the holder of this Certificate a copy of the Rights Agreement
without charge promptly after receipt of a written request
therefor. Under certain circumstances as set forth in the Rights
Agreement, Rights beneficially owned by an Acquiring Person or
any Affiliate or Associate of an Acquiring Person (as such terms
are defined in the Rights Agreement) may become null and void.
(d) As promptly as practicable after the Distribution Date,
the Company shall prepare and execute, the Rights Agent will
countersign and the Company shall send or cause to be sent (and
the Rights Agent shall, if requested, send), by first-class,
insured, postage prepaid mail, to each record holder of Common
Shares as of the Close of Business on the Distribution Date, at
the address of such holder shown on the records of the Company, a
Right Certificate, evidencing one Right for each Common Share so
held, subject to adjustment. As of and after the Distribution
Date, the Rights shall be evidenced solely by such Right
Certificates.
Section 4. Form of Right Certificates. The Right
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Certificates (and the form of election to purchase and form of
assignment to be printed on the reverse thereof) shall be
substantially in the form set forth as Exhibit A hereto with such
changes, marks of identification or designation and such legends,
summaries or endorsements printed thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of
this Agreement, or as may be required to comply with any
applicable law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange or
transaction reporting system on which the Rights may from time to
time be listed or quoted, or to conform to usage. Subject to the
provisions of Section 22 hereof, the Right Certificates, whenever
issued, on their face shall entitle the holders thereof to
purchase such number of Common Shares as shall be set forth
therein at the Purchase Price set forth therein, but the Purchase
Price, the number and kind of securities issuable upon exercise
of each Right and the number of Rights outstanding shall be
subject to adjustment as provided herein.
Section 5. Countersignature and Registration.
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(a) The Right Certificates shall be executed on behalf of
the Company by its Chairman of the Board, President or any Vice
President, either manually or by facsimile signature, and shall
have affixed thereto the Company's seal or a facsimile thereof
which shall be attested by the Secretary or an Assistant
Secretary of the Company, either manually or by facsimile
signature. The Right Certificates shall be manually
countersigned by the Rights Agent and shall not be valid for any
purpose unless so countersigned. In case any officer of the
Company who shall have signed any of the Right Certificates shall
cease to be such officer of the Company before countersignature
by the Rights Agent and issuance and delivery by the Company,
such Right Certificates, nevertheless, may be countersigned by
the Rights Agent, and issued and delivered by the Company with
the same force and effect as though the person who signed such
Right Certificates had not ceased to be such officer of the
Company; and any Right Certificate may be signed on behalf of the
Company by any person who, at the actual date of the execution of
such Right Certificate, shall be a proper officer of the Company
to sign such Right Certificate, although at the date of the
execution of this Rights Agreement any such person was not such
an officer.
(b) Following the Distribution Date, the Rights Agent shall
keep or cause to be kept, at the principal office of the Rights
Agent designated for such purpose and at such other offices as
may be required to comply with any applicable law or with any
rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange or any transaction reporting
system on which the Rights may from time to time be listed or
quoted, books for registration and transfer of the Right
Certificates issued hereunder. Such books shall show the names
and addresses of the respective holders of the Right
Certificates, the number of Rights evidenced on its face by each
of the Right Certificates and the date of each of the Right
Certificates.
Section 6. Transfer, Split Up, Combination and Exchange
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of Right Certificates; Mutilated, Destroyed, Lost or Stolen Right
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Certificates.
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(a) Subject to the provisions of Sections 7(d) and 14
hereof, at any time after the Close of Business on the
Distribution Date and prior to the Expiration Date, any Right
Certificate or Right Certificates representing exercisable Rights
may be transferred, split up, combined or exchanged for another
Right Certificate or Right Certificates, entitling the registered
holder to purchase a like number of Common Shares (or other
securities, as the case may be) as the Right Certificate
or Right Certificates surrendered then entitled such holder (or
former holder in the case of a transfer) to purchase. Any
registered holder desiring to transfer, split up, combine or
exchange any such Right Certificate shall make such request in
writing delivered to the Rights Agent, and shall surrender the
Right Certificate or Right Certificates to be transferred, split
up, combined or exchanged at the principal office of the Rights
Agent designated for such purpose. Thereupon or as promptly as
practicable thereafter, subject to the provisions of Sections
7(d) and 14 hereof, the Company shall prepare, execute and
deliver to the Rights Agent, and the Rights Agent shall
countersign and deliver a Right Certificate or Right
Certificates, as the case may be, as so requested. The Company
may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any
transfer, split up, combination or exchange of Right
Certificates.
(b) Upon receipt by the Company and the Rights Agent of
evidence reasonably satisfactory to them of the loss, theft,
destruction or mutilation of a Right Certificate, and, in case of
loss, theft or destruction, of indemnity or security reasonably
satisfactory to them, and reimbursement to the Company and the
Rights Agent of all reasonable expenses incidental thereto, and
upon surrender to the Rights Agent and cancellation of the Right
Certificate if mutilated, the Company shall prepare, execute and
deliver a new Right Certificate of like tenor to the Rights Agent
and the Rights Agent shall countersign and deliver such new Right
Certificate to the registered holder in lieu of the Right
Certificate so lost, stolen, destroyed or mutilated.
Section 7. Exercise of Rights; Purchase Price;
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Expiration Date of Rights.
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(a) The registered holder of any Right Certificate may
exercise the Rights evidenced thereby (except as otherwise
provided herein) in whole or in part at any time after the
Distribution Date and prior to the Expiration Date, upon
surrender of the Right Certificate, with the form of election to
purchase on the reverse side thereof duly executed, to the Rights
Agent at the office or offices of the Rights Agent designated for
such purpose, together with payment in cash, in lawful money of
the United States of America by certified check or bank draft
payable to the order of the Company equal to the sum of (i)
the Purchase Price for the total number of securities as to
which such surrendered Rights are exercised and (ii) an amount
equal to any applicable transfer tax required to be paid by the
holder of such Right Certificate in accordance with the
provisions of Section 9(c) hereof, at or prior to the earliest
of (i) the Close of Business on the Final Expiration Date, (ii)
the time at which the Rights are redeemed pursuant to Section 23,
or (iii) the time at which the Rights are exchanged pursuant to
Section 27.
(b) Upon receipt of a Right Certificate representing
exercisable Rights with the form of election to purchase duly
executed, accompanied by payment as described above, the Rights
Agent shall promptly (i) requisition from any transfer agent of
the Common Shares (or make available, if the Rights Agent is the
transfer agent) certificates representing the number of Common
Shares to be purchased (and the Company hereby irrevocably
authorizes and directs its transfer agent to comply with all such
requests), (ii) after receipt of such certificates, cause the
same to be delivered to or upon the order of the registered
holder of such Right Certificate, registered in such name or
names as may be designated by such holder, (iii) when
appropriate, requisition from the Company or any transfer agent
therefor (or make available, if the Rights Agent is the
transfer agent) certificates representing the number of
equivalent common shares to be issued in lieu of the issuance
of Common Shares in accordance with the provisions of Section
11(a)(iii) hereof, (iv) when appropriate, after receipt of such
certificates, cause the same to be delivered to or upon the
order of the registered holder of such Right Certificate,
registered in such name or names as may be designated by such
holder, (v) when appropriate, requisition from the Company the
amount of cash, debt securities or other assets to be paid
in lieu of the issuance of fractional shares in accordance with
the provisions of Section 14 hereof or in lieu of the issuance
of Common Shares in accordance with the provisions of Section
11(a)(iii) hereof, (vi) when appropriate, after receipt, deliver
such cash, debt securities or other assets to or upon the order
of the registered holder of such Right Certificate, and (vii)
when appropriate, deliver any due ▇▇▇▇ or other instrument
provided to the Rights Agent by the Company for delivery to the
registered holder of such Right Certificate as provided by
Section 11(l) hereof.
(c) In case the registered holder of any Right Certificate
shall exercise less than all the Rights evidenced thereby, the
Company shall prepare, execute and deliver a new Right
Certificate evidencing Rights equivalent to the Rights remaining
unexercised and the Rights Agent shall countersign and deliver
such new Right Certificate to the registered holder of such Right
Certificate or to his duly authorized assigns, subject to the
provisions of Section 14 hereof.
(d) Notwithstanding anything in this Agreement to the
contrary, neither the Rights Agent nor the Company shall be
obligated to undertake any action with respect to any purported
transfer, split up, combination or exchange of any Right
Certificate pursuant to Section 6 hereof or exercise of a Right
Certificate as set forth in this Section 7 unless the registered
holder of such Right Certificate shall have (i) completed and
signed the certificate following the form of assignment or form
of election to purchase, as applicable, set forth on the reverse
side of the Right Certificate surrendered for such transfer,
split up, combination, exchange or exercise, and (ii) provided
such additional evidence of the identity of the Beneficial Owner
(or former Beneficial Owner) or Affiliates or Associates thereof
as the Company shall have reasonably requested.
Section 8. Cancellation and Destruction of Right
---------------------------------------------
Certificates. All Right Certificates surrendered for the purpose
------------
of exercise, transfer, split up, combination or exchange shall,
if surrendered to the Company or to any of its stock transfer
agents, be delivered to the Rights Agent for cancellation or in
cancelled form, or, if surrendered to the Rights Agent, shall be
cancelled by it, and no Right Certificates shall be issued in
lieu thereof except as expressly permitted by this Agreement.
The Company shall deliver to the Rights Agent for cancellation
and retirement, and the Rights Agent shall so cancel and retire,
any other Right Certificate purchased or acquired by the Company
otherwise than upon the exercise thereof. The Rights Agent shall
deliver all cancelled Right Certificates to the Company, or
shall, at the written request of the Company, destroy such
cancelled Right Certificates, and in such case shall deliver a
certificate of destruction thereof to the Company.
Section 9. Company Covenants Concerning Securities and
---------------------------------------------
Rights. The Company covenants and agrees that:
------
(a) So long as the Common Shares issuable upon the exercise
of the Rights may be quoted on a transaction reporting system, it
shall endeavor to cause, from and after such time as the Rights
become exercisable, all securities reserved for issuance upon the
exercise of Rights to be quoted on such transaction reporting
system upon official notice of issuance.
(b) It shall take all such action as may be necessary to
ensure that all Common Shares and/or other securities delivered
upon exercise of Rights, at the time of delivery of the
certificates for such securities shall be (subject to payment of
the Purchase Price) duly and validly authorized and issued, fully
paid and nonassessable securities.
(c) It shall pay when due and payable any and all federal
And state transfer taxes and charges that may be payable in
Respect of the issuance or delivery of the Right Certificates and
of any certificates representing securities issued upon the
exercise of Rights; provided, however, that the Company shall not
be required to pay any transfer tax or charge which may be payable
in respect of any transfer or delivery of Right Certificates to a
person other than, or the issuance or delivery of certificates
representing securities issued upon the exercise of Rights in a
name other than that of, the registered holder of the Right
Certificate evidencing Rights surrendered for exercise, or to
Issue or deliver any certificates representing securities issued
upon the exercise of any Rights until any such tax or charge shall
have been paid (any such tax or charge being payable by the holder
of such Right Certificate at the time of surrender) or until it
has been established to the Company's reasonable satisfaction that
no such tax is due.
(d) It shall use its best efforts (i) to file on an
Appropriate form, as soon as practicable following the first
occurrence of a Triggering Event, a registration statement under
the Securities Act with respect to the securities issuable upon
exercise of the Rights, (ii) to cause such registration statement
to become effective as soon as practicable after such filing, and
(iii) to cause such registration statement to remain effective
(with a prospectus at all times meeting the requirements of the
Securities Act) until the earlier of (A) the date as of which the
Rights are no longer exercisable for such securities and (B) the
Expiration Date. The Company shall also take such action as may
be appropriate under, or to ensure compliance with, the securities
or "blue sky" laws of the various states in connection with the
exercisability of the Rights. The Company may temporarily
suspend, for a period of time after the date set forth in clause
(i) of the first sentence of this Section 9(d), the
exercisability of the Rights in order to prepare and file such
registration statement and to permit it to become effective. Upon
any such suspension, the Company shall issue a public announcement
stating that the exercisability of the Rights has been temporarily
suspended, as well as a public announcement at such time as the
suspension is no longer in effect. In addition, if the Company
shall determine that a registration statement should be filed
under the Securities Act or any state securities laws following
the Distribution Date, the Company may temporarily suspend the
exercisability of the Rights in each relevant jurisdiction until
such time as a registration statement has been declared effective
and, upon any such suspension, the Company shall issue a public
announcement stating that the exercisability of the Rights has
been temporarily suspended, as well as a public announcement at
such time as the suspension is no longer in effect.
Notwithstanding anything in this Agreement to the contrary, the
Rights shall not be exercisable in any jurisdiction if the
requisite registration or qualification in such jurisdiction shall
not have been effected or the exercise of the Rights shall not be
permitted under applicable law.
(e) Notwithstanding anything in this Agreement to contrary,
after the Distribution Date it shall not, except as permitted by
Section 23 or Section 26 hereof, take (or permit any Subsidiary
to take) any action if at the time such action is taken it is
reasonably foreseeable that such action will eliminate or
otherwise diminish the benefits intended to be afforded by the
Rights.
(f) In the event that the Company is obligated to issue
securities of the Company other than Common Shares, pay cash
and/or distribute other property pursuant to Sections 11, 13 or
14 hereof, it shall make all arrangements necessary so that such
other securities, cash and/or other property are available for
distribution by the Rights Agent, if and when appropriate.
Section 10. Record Date. Each Person in whose name any
-----------
certificate representing Common Shares is issued upon the
exercise of Rights shall for all purposes be deemed to have
become the holder of record of the Common Shares represented
thereby on, and such certificate shall be dated, the date upon
which the Right Certificate evidencing such Rights was duly
surrendered and payment of the Purchase Price (and all applicable
transfer taxes) was made; provided, however, that if the date of
such surrender and payment is a date upon which the Common Shares
transfer books of the Company are closed, such Person shall be
deemed to have become the record holder of such securities on,
and such certificate shall be dated, the next succeeding Business
Day on which the Common Shares transfer books of the Company are
open. Prior to the exercise of the Rights evidenced thereby, the
holder of a Right Certificate shall not be entitled to any rights
of a stockholder of the Company with respect to securities for
which the Rights shall be exercisable, including, without
limitation, the right to vote, to receive dividends or other
distributions or to exercise any preemptive rights, and shall
not be entitled to receive any notice of any proceedings of the
Company, except as provided herein.
Section 11. Adjustment of Purchase Price, Number and Kind
of Securities or Number of Rights. The Purchase Price, the number
and kind of securities issuable upon exercise of each Right and
the number of Rights outstanding are subject to adjustment from
time to time as provided in this Section 11.
(a)
(i) In the event that the Company shall at any time
after the date of this Agreement (A) declare a dividend on
the Common Shares payable in Common Shares, (B) subdivide the
outstanding Common Shares, (C) combine the outstanding Common
Shares into a smaller number of shares, or (D) issue any
shares of its capital stock in a reclassification of the
Common Shares (including any such reclassification in
connection with a consolidation or merger in which the
Company is the continuing or surviving corporation), the
Purchase Price in effect at the time of the record date for
such dividend or of the effective date of such subdivision,
combination or reclassification, and/or the number and/or
kind of shares of capital stock issuable on such date upon
exercise of a Right, shall be proportionately adjusted so
that the holder of any Right exercised after such time shall
be entitled to receive upon payment of the Purchase Price
then in effect the aggregate number and kind of shares of
capital stock which, if such Right had been exercised
immediately prior to such date and at a time when the Common
Shares transfer books of the Company were open, the holder of
such Right would have owned upon such exercise and been
entitled to receive by virtue of such dividend, subdivision,
combination or reclassification. If an event occurs which
would require an adjustment under both this Section 11(a)(i)
and Section 11(a)(ii) hereof or Section 13 hereof, the
adjustment provided for in this Section 11(a)(i) shall be in
addition to, and shall be made prior to, any adjustment
required pursuant to Section 11(a)(ii) or Section 13 hereof.
(ii) Subject to the provisions of Section 27 hereof, in
the event that:
(A) any Acquiring Person or any Affiliate or
Associate of any Acquiring Person, at any time after the
date of this Agreement, directly or indirectly, shall
merge into the Company or otherwise combine with the
Company and the Company shall be the continuing or
surviving corporation of such merger or combination
(other than in a transaction subject to Section 13
hereof); or
(B) any Person (other than the Company or any
Subsidiary of the Company or any employee benefit or
stock ownership plan of the Company or of any Subsidiary
of the Company or any Person holding Common Shares for
or pursuant to the terms of any such plan or for the
purpose of funding any such plan or funding other
employee benefits for employees of the Company or of any
Subsidiary) who or which, together with all Affiliates
and Associates of such Person, shall at any time after
date of this Agreement, become an Acquiring Person
(other than pursuant to any transaction set forth in
Section 13(a) hereof),
then, and in each such case, proper provision shall be made so
that each holder of a Right, except as provided below, shall
thereafter have a right to receive, upon exercise thereof in
accordance with the terms of this Agreement at an exercise price
per Right equal to the product of the then-current Purchase
Price multiplied by the number of Common Shares for which a Right
was exercisable immediately prior to the first occurrence of a
Triggering Event, such number of Common Shares as shall equal the
result obtained by (x) multiplying the then-current Purchase
Price by the number of Common Shares for which a Right was
exercisable immediately prior to the first occurrence of a
Triggering Event, and dividing that product by (y) 50% of the
current per share market price of the Common Shares (determined
pursuant to Section 11(d) hereof) on the date of the first
occurrence of a Triggering Event. Notwithstanding anything in
this Agreement to the contrary, from and after the later of the
Distribution Date and the first occurrence of a Flip-in Event,
(1) any Rights that are or were acquired or beneficially owned by
any Acquiring Person (or any Affiliate or Associate of such
Acquiring Person) shall be void and any holder of such Rights
shall thereafter have no right to exercise such Rights under any
provision of this Agreement, (2) no Right Certificate shall be
issued pursuant to this Agreement that represents Rights
beneficially owned by an Acquiring Person or any Affiliate or
Associate thereof, (3) no Right Certificate shall be issued at
any time upon the transfer of any Rights to an Acquiring Person
or any Affiliate or Associate thereof or to any nominee of such
Acquiring Person or Affiliate or Associate thereof, and (4) any
Right Certificate delivered to the Rights Agent for transfer to
an Acquiring Person or any Affiliate or Associate thereof shall
be cancelled.
(iii) Upon the occurrence of a Flip-in Event, if
there shall not be sufficient Common Shares authorized but
unissued or issued but not outstanding to permit the
issuance of all the Common Shares issuable in accordance with
subsection (ii) hereof upon the exercise of a Right, the
Board of Directors of the Company shall use its best efforts
promptly to authorize and, subject to the provisions of
Section 9(d) hereof, make available for issuance additional
Common Shares, or other equity securities of the Company
having equivalent voting rights and an equivalent value (as
determined in good faith by the Board of Directors of the
Company) to the Common Shares (for purposes of this Section
11(a)(iii), "equivalent common shares"). In the event that
equivalent common shares are so authorized, upon the exercise
of a Right in accordance with the provisions of Section 7
hereof, the registered holder shall be entitled to receive
(A) Common Shares, to the extent any are available and (B) a
number of equivalent common shares, which the Board of
Directors of the Company shall have determined in good faith
to have a value equivalent to the excess of (x) the aggregate
current per share market value of all the Common Shares
issuable in accordance with subsection (ii) hereof upon the
exercise of a Right (the "Exercise Value") over (y) the
aggregate current per share market value of any Common
Shares available for issuance upon the exercise of such
Right; provided, however, that if at any time after 90
calendar days after the first occurrence of a Flip-in Event,
there shall not be sufficient Common Shares and/or equivalent
common shares available for issuance upon the exercise of a
Right, then the Company shall be obligated to deliver, upon
the surrender of such Right and without requiring payment of
the Purchase Price, (1) Common Shares (to the extent
available), (2) equivalent common shares (to the extent
available), (3) cash (to the extent permitted by applicable
law and any agreements or instruments to which the Company is
a party in effect immediately prior to the first occurrence
of any Flip-in Event), (4) debt securities of the Company,
(5) other assets, or (6) any combination of the foregoing,
in any event having an aggregate value which the Board of
Directors shall have determined in good faith to be equal to
the excess of (I) the Exercise Value over (II) the product of
the then-current Purchase Price multiplied by the number of
Common Shares for which a Right was exercisable immediately
prior to the first occurrence of a Triggering Event.
(iv) If the rules of the national securities exchange,
registered as such pursuant to Section 6 of the Exchange Act,
or of the national securities association, registered as such
pursuant to Section 15A of the Exchange Act, on which the
Common Shares are principally traded would prohibit such
exchange or association from listing or continuing to list,
or from authorizing for or continuing quotation and/or
transaction reporting through an interdealer quotation
system, the Common Shares or other equity securities of the
Company because the issuance of Common Shares in accordance
with subsection (ii) hereof would nullify, restrict or
disparately reduce the per share voting rights of holders of
Common Shares, the Company shall: (A) determine the excess of
(x) the Exercise Value over (y) the aggregate current per
share market value of all the Common Shares issuable in
accordance with subsection (ii) hereof, and (B) with respect
to each Right, make adequate provision to substitute for the
Common Shares issuable in accordance with subsection (ii)
hereof, upon payment of the applicable Purchase Price, (1)
cash, (2) a reduction in the Purchase Price, (3) equity
securities of the Company, including, without limitation,
equivalent common shares (as defined in Section 11(a)(iii)),
other than securities which would have the effect of
nullifying, restricting or disparately reducing the per
share voting rights of holders of Common Shares, (4) debt
securities of the Company, (5) other assets, or (6) any
combination of the foregoing, in any event having an
aggregate value which the Board of Directors shall have
determined in good faith to be equal to the aggregate current
per share market value of all the Common Shares issuable in
accordance with subsection (ii); provided, however, if the
Company shall not have made adequate provision to deliver
value pursuant to clause (B) above within 30 days after the
first occurrence of a Flip-in Event, then the Company shall
be obligated to deliver, upon the surrender for exercise of
a Right and without requiring payment of the Purchase Price,
cash having an aggregate value equal to the excess of (x)
the Exercise Value and (y) the aggregate current per share
market value of all the Common Shares issuable in accordance
with subsection (ii) hereof. To the extent that the Company
determines that some action need be taken pursuant to the
first sentence of this Section 11(a)(iv), the Company (x)
shall provide, subject to Section 11(a)(ii) hereof, that such
action shall apply uniformly to all outstanding Rights and
(y) may suspend the exercisability of the Rights, but not
longer than 90 calendar days after the first occurrence of a
Flip-in Event, in order to decide the appropriate form of
distribution to be made pursuant to such first sentence and
to determine the value thereof. In the event of any such
suspension, the Company shall issue a public announcement
stating that the exercisability of the Rights has been
temporarily suspended, as well as a public announcement at
such time as the suspension is no longer in effect. For
purposes of this Section 11(a)(iv), the value of the
Common Shares shall be the current per share market price of
the Common Shares (determined pursuant to Section (11(d)
hereof) on the date of the first occurrence of a Flip-in
Event and the value of any equivalent common share shall be
deemed to have the same value as a Common Share on such date.
(b) In the event that the Company shall fix a record date
for the issuance of rights, options or warrants to all holders of
Common Shares entitling them (for a period expiring within 45
calendar days after such record date) to subscribe for or
purchase Common Shares (or securities having equivalent rights,
privileges and preferences as the Common Shares (for purposes of
this Section 11(b), "equivalent common shares")) or securities
convertible into Common Shares or equivalent common shares at a
price per Common Share or equivalent common share (or having a
conversion price per share, if a security convertible into Common
Shares or equivalent common shares) less than the current per
share market price of the Common Shares (determined pursuant to
Section 11(d) hereof) on such record date, the Purchase Price to
be in effect after such record date shall be determined by
multiplying the Purchase Price in effect immediately prior to
such record date by a fraction, the numerator of which shall be
the number of Common Shares outstanding on such record date plus
the number of Common Shares which the aggregate offering price of
the total number of Common Shares and/or equivalent common shares
so to be offered (and/or the aggregate initial conversion price
of the convertible securities so to be offered) would purchase at
such current per share market price and the denominator of which
shall be the number of Common Shares outstanding on such record
date plus the number of additional Common Shares and/or
equivalent common shares to be offered for subscription or
purchase (or into which the convertible securities so to be
offered are initially convertible). In case such subscription
price may be paid in a consideration part or all of which shall
be in a form other than cash, the value of such consideration
shall be as determined in good faith by the Board of Directors of
the Company, whose determination shall be described in a
statement filed with the Rights Agent. Common Shares owned by or
held for the account of the Company shall not be deemed
outstanding for the purpose of any such computation. Such
adjustment shall be made successively whenever such a record date
is fixed; and in the event that such rights, options or warrants
are not so issued, the Purchase Price shall be adjusted to be the
Purchase Price which would then be in effect if such record date
had not been fixed.
(c) In the event that the Company shall fix a record date
for the making of a distribution to all holders of Common Shares
(including any such distribution made in connection with a
consolidation or merger in which the Company is the continuing or
surviving corporation) of evidences of indebtedness, cash (other
than a regular periodic cash dividend), assets, stock (other than
a dividend payable in Common Shares) or subscription rights,
options or warrants (excluding those referred to in Section 11(b)
hereof), the Purchase Price to be in effect after such record
date shall be determined by multiplying the Purchase Price in
effect immediately prior to such record date by a fraction, the
numerator of which shall be the current per share market price
of the Common Shares (as determined pursuant to Section 11(d)
hereof) on such record date or, if earlier, the date on which
Common Shares begin to trade on an ex-dividend or when-issued
basis for such distribution, less the fair market value (as
determined in good faith by the Board of Directors of the
Company, whose determination shall be described in a statement
filed with the Rights Agent) of the portion of the evidences of
indebtedness, cash, assets or stock so to be distributed or of
such subscription rights, options or warrants applicable to one
Common Share, and the denominator of which shall be such current
per share market price of the Common Shares. Such adjustments
shall be made successively whenever such a record date is fixed;
and in the event that such distribution is not so made, the
Purchase Price shall again be adjusted to be the Purchase Price
which would then be in effect if such record date had not been
fixed.
(d) For the purpose of any computation hereunder, the
"current per share market price" of Common Shares on any date
shall be deemed to be the average of the daily closing prices per
share of such Common Shares for the 30 consecutive
Trading Days immediately prior to such date; provided, however,
that in the event that the current per share market price of
the Common Shares is determined during a period following the
announcement by the Issuer of such Common Shares of (i) a
dividend or distribution on such Common Shares payable in such
Common Shares or securities convertible into such Common Shares
(other than the Rights) or (ii) any subdivision, combination or
reclassification of such Common Shares, and prior to the
expiration of 30 Trading Days after the ex-dividend date for such
dividend or distribution, or the record date for such subdivision,
combination or reclassification, then, and in each such case, the
current per share market price shall be appropriately adjusted to
take into account ex-dividend trading or to reflect the current
per share market price per Common Share equivalent. The closing
price for each day shall be the last sale price, regular way, or,
in case no such sale takes place on such day, the average of the
closing bid and asked prices, regular way, in either case as
reported in the principal consolidated transaction reporting
system with respect to securities listed or admitted to trading
on the New York Stock Exchange or, if the Common Shares are not
listed or admitted to trading on the New York Stock Exchange, as
reported in the principal consolidated transaction reporting
system with respect to securities listed on the principal
national securities exchange on which the Common Shares are
listed or admitted to trading or, if the Common Shares are not
listed or admitted to trading on any national securities
exchange, the last quoted sale price or, if not so quoted, the
average of the high bid and low asked prices in the over-the-
counter market, as reported by NASDAQ or such other system then
in use, or, if on any such date the Common Shares are not quoted
by any such organization, the average of the closing bid and
asked prices as furnished by a professional market maker making a
market in the Common Shares selected by the Board of Directors of
the Company. If the Common Shares are not publicly held or not
so listed or traded, or not the subject of available bid and
asked quotes, "current per share market price" shall mean the
fair value per share as determined in good faith by the Board of
Directors of the Company, whose determination shall be described
in a statement filed with the Rights Agent.
(e) Except as set forth below, no adjustment in the Purchase
Price shall be required unless such adjustment would require an
increase or decrease of at least 1% in such price; provided,
however, that any adjustments which by reason of this Section
11(e) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment. All
calculations under this Section 11 shall be made to the nearest
cent or to the nearest one ten-thousandth of a Common Share or
other security, as the case may be. Notwithstanding the first
sentence of this Section 11(e), any adjustment required by this
Section 11 shall be made no later than the earlier of (i) three
years from the date of the transaction which requires such
adjustment and (ii) the Expiration Date.
(f) If as a result of an adjustment made pursuant to Section
11(a) hereof, the holder of any Right thereafter exercised shall
become entitled to receive any securities of the Company other
than Common Shares, thereafter the number of such other
securities so receivable upon exercise of any Right shall be
subject to adjustment from time to time in a manner and on terms
as nearly equivalent as practicable to the provisions with
respect to the Common Shares contained in this Section 11, and
the provisions of Sections 7, 9, 10 and 13 hereof with respect to
the Common Shares shall apply on like terms to any such other
securities.
(g) All Rights originally issued by the Company subsequent
to any adjustment made to the Purchase Price hereunder shall
evidence the right to purchase, at the adjusted Purchase Price,
the number of Common Shares issuable from time to time hereunder
upon exercise of the Rights, all subject to further adjustment as
provided herein.
(h) Unless the Company shall have exercised its election as
provided in Section 11(i) hereof, upon each adjustment of the
Purchase Price as a result of the calculations made in Section
11(b) and Section 11(c) hereof made with respect to a
distribution of subscription rights, options or warrants
applicable to Common Shares, each Right outstanding immediately
prior to the making of such adjustment shall thereafter evidence
the right to purchase, at the adjusted Purchase Price, that
number of Common Shares (calculated to the nearest one-thousandth
a Common Share) obtained by (i) multiplying (x) the number of
Common Shares issuable upon exercise of a Right immediately
prior to this adjustment by (y) the Purchase Price in effect
immediately prior to such adjustment of the Purchase Price, and
(ii) dividing the product so obtained by the Purchase Price in
effect immediately after such adjustment of the Purchase Price.
(i) The Company may elect, on or after the date of any
adjustment of the Purchase Price, to adjust the number of Rights
in substitution for any adjustment in the number of Common Shares
issuable upon the exercise of a Right. Each of the Rights
outstanding after such adjustment of the number of Rights shall
be exercisable for the number of Common Shares for which a Right
was exercisable immediately prior to such adjustment. Each Right
held of record prior to such adjustment of the number of Rights
shall become that number of Rights (calculated to the nearest one-
thousandth) obtained by dividing the Purchase Price in effect
immediately prior to adjustment of the Purchase Price by the
Purchase Price in effect immediately after adjustment of the
Purchase Price. The Company shall make a public announcement of
its election to adjust the number of Rights, indicating the
record date for the adjustment, and, if known at the time, the
amount of the adjustment to be made. This record date may be the
date on which the Purchase Price is adjusted or any day
thereafter, but, if the Right Certificates have been issued,
shall be at least 10 calendar days later than the date of the
public announcement. If Right Certificates have been issued,
upon each adjustment of the number of Rights pursuant to this
Section 11(i), the Company shall, as promptly as practicable,
cause to be distributed to holders of record of Right
Certificates on such record date Right Certificates evidencing,
subject to the provisions of Section 14 hereof, the additional
Rights to which such holders shall be entitled as a result of
such adjustment, or, at the option of the Company, shall cause to
be distributed to such holders of record in substitution and
replacement for the Right Certificates held by such holders prior
to the date of adjustment, and upon surrender thereof if required
by the Company, new Right Certificates evidencing all the Rights
to which such holders shall be entitled after such adjustment.
Right Certificates so to be distributed shall be issued, executed
and countersigned in the manner provided for herein (and may
bear, at the option of the Company, the adjusted Purchase Price)
and shall be registered in the names of the holders of record of
Right Certificates on the record date specified in the public
announcement.
(j) Irrespective of any adjustment or change in the Purchase
Price or the number or kind of securities issuable upon the
exercise of the Rights, the Right Certificates theretofore and
thereafter issued may continue to express the Purchase Price and
the number and kind of securities which were expressed in the
initial Right Certificates issued hereunder.
(k) Before taking any action that would cause an adjustment
reducing the Purchase Price below the then par value, if any, of
the Common Shares or other securities issuable upon exercise of
the Rights, the Company shall take any corporate action which
may, in the opinion of its counsel, be necessary or appropriate
in order that the Company may validly and legally issue fully
paid and nonassessable Common Shares or such other securities at
such adjusted Purchase Price.
(l) In any case in which this Section 11 shall require that
an adjustment in the Purchase Price be made effective as of a
record date for a specified event, the Company may elect to defer
until the occurrence of such event the issuance to the holder of
any Right exercised after such record date the number of Common
Shares or other securities of the Company, if any, issuable upon
such exercise over and above the number of Common Shares or other
securities of the Company, if any, issuable upon such exercise on
the basis of the Purchase Price in effect prior to such
adjustment; provided, however, that the Company shall deliver to
such holder a due ▇▇▇▇ or other appropriate instrument evidencing
such holder's right to receive such additional Common Shares or
other securities upon the occurrence of the event requiring such
adjustment.
(m) Notwithstanding anything in this Agreement to the
contrary, the Company shall be entitled to make such reductions in
the Purchase Price, in addition to those adjustments expressly
required by this Section 11, as and to the extent that in its
good faith judgment the Board of Directors of the Company shall
determine to be advisable in order that any (i) consolidation or
subdivision of the Common Shares, (ii) issuance wholly for cash
of Common Shares at less than the current per share market price
therefor, (iii) issuance wholly for cash of Common Shares or
securities which by their terms are convertible into or
exchangeable for Common Shares, (iv) stock dividends, or (v)
issuance of rights, options or warrants referred to in this
Section 11, hereafter made by the Company to holders of its
Common Shares shall not be taxable to such stockholders.
Section 12. Certificate of Adjusted Purchase Price or
---------------------------------------------
Number of Securities. Whenever an adjustment is made as
----------------------
provided in Section 11 or Section 13 hereof, the Company shall
promptly (a) prepare a certificate setting forth such adjustment
and a brief statement of the facts accounting for such
adjustment, (b) file with the Rights Agent and with each transfer
agent for the Common Shares, a copy of such certificate, and
(c) if such adjustment is made after the Distribution Date, mail
a brief summary of such adjustment to each holder of a Right
Certificate in accordance with Section 25 hereof.
Section 13. Consolidation, Merger or Sale or Transfer of
---------------------------------------------
Assets or Earning Power.
-----------------------
(a) In the event that, following the Share Acquisition
Date, directly or indirectly:
(i) the Company shall consolidate with, or merge with
or into, any other Person and the Company shall not be the
continuing or surviving corporation of such consolidation or
merger; or
(ii) any Person shall consolidate with the Company, or
merge with or into the Company and the Company shall be the
continuing or surviving corporation of such merger or
consolidation and, in connection with such merger or
consolidation, all or part of the Common Shares shall be
changed into or exchanged for stock or other securities of
any other Person or cash or any other property; or
(iii) the Company shall sell or otherwise transfer (or
one or more of its Subsidiaries shall sell or otherwise
transfer), in one or more transactions, assets or earning
power (including, without limitation, securities creating
any obligation on the part of the Company and/or any of its
Subsidiaries) representing in the aggregate more than 50% of
the assets or earning power of the Company and its
Subsidiaries (taken as a whole) to any Person or Persons,
then, and in each such case, proper provision shall be made so
that (A) each holder of a Right (except as otherwise provided
herein) shall thereafter have the right to receive, upon the
exercise thereof in accordance with the terms of this Agreement
at an exercise price per Right equal to the product of the then-
current Purchase Price multiplied by the number of Common Shares
for which a Right was exercisable immediately prior to the first
occurrence of a Triggering Event, such number of validly
authorized and issued, fully paid, nonassessable and freely
tradeable Common Shares of the Issuer, free and clear of any
liens, encumbrances and other adverse claims and not subject to
any rights of call or first refusal, as shall be equal to the
result obtained by (x) multiplying the then-current Purchase
Price by the number of Common Shares for which a Right is
exercisable immediately prior to the first occurrence of a
Triggering Event and dividing that product by (y) 50% of the
current per share market price of the Common Shares of the Issuer
(determined pursuant to Section 11(d) hereof), on the date of
consummation of such Flip-over Event; (B) the Issuer shall
thereafter be liable for, and shall assume, by virtue of the
consummation of such Flip-over Event, all the obligations and
duties of the Company pursuant to this Agreement; (C) the term
"Company" shall thereafter be deemed to refer to the Issuer; and
(D) the Issuer shall take such steps (including, without
limitation, the reservation of a sufficient number of its Common
Shares to permit the exercise of all outstanding Rights) in
connection with such consummation as may be necessary to assure
that the provisions hereof shall thereafter be applicable, as
nearly as reasonably may be possible, in relation to its Common
Shares thereafter deliverable upon the exercise of the Rights.
(b) For purposes of this Section 13, "Issuer" shall mean (i)
in the case of any Flip-over Event described in Sections 13(a)(i)
or (ii) above, the Person that is the continuing, surviving,
resulting or acquiring Person (including the Company as the
continuing or surviving corporation of a transaction described in
Section 13(a)(ii) above), and (ii) in the case of any Flip-over
Event described in Section 13(a)(iii) above, the Person that is
the party receiving the greatest portion of the assets or earning
power (including, without limitation, securities creating any
obligation on the part of the Company and/or any of its
Subsidiaries) transferred pursuant to such transaction or
transactions; provided, however, that, in any such case, (A) if
(1) no class of equity security of such Person is, at the time of
such merger, consolidation or transaction and has been
continuously over the preceding 12-month period, registered
pursuant to Section 12 of the Exchange Act, and (2) such Person
is a Subsidiary, directly or indirectly, of another Person, a
class of equity security of which is and has been so registered,
the term "Issuer" shall mean such other Person; and (B) in case
such Person is a Subsidiary, directly or indirectly, of more than
one Person, a class of equity security of two or more of which
are and have been so registered, the term "Issuer" shall mean
whichever of such Persons is the issuer of the equity security
having the greatest aggregate market value. Notwithstanding the
foregoing, if the Issuer in any of the Flip-over Events listed
above is not a corporation or other entity having outstanding
equity securities, then, and in each such case, (x) if the Issuer
is directly or indirectly wholly owned by a corporation or other
entity having outstanding equity securities, then all references
to Common Shares of the Issuer shall be deemed to be references
to the Common Shares of the corporation or other entity having
outstanding equity securities which ultimately controls the
Issuer, and (y) if there is no such corporation or other entity
having outstanding equity securities, (I) proper provision shall
be made so that the Issuer shall create or otherwise make
available for purposes of the exercise of the Rights in
accordance with the terms of this Agreement, a kind or kinds of
security or securities having a fair market value at least equal
to the economic value of the Common Shares which each holder of a
Right would have been entitled to receive if the Issuer had been
a corporation or other entity having outstanding equity
securities; and (II) all other provisions of this Agreement shall
apply to the Issuer of such securities as if such securities were
Common Shares.
(c) The Company shall not consummate any Flip-over Event,
unless the Issuer shall have a sufficient number of authorized
Common Shares (or other securities as contemplated in Section
13(b) above) which have not been issued or reserved for issuance
to permit the exercise in full of the Rights in accordance with
this Section 13 and unless prior to such consummation the Company
and the Issuer shall have executed and delivered to the Rights
Agent a supplemental agreement providing for the terms set forth
in subsections (a) and (b) of this Section 13 and further
providing that as promptly as practicable after the consummation
of any Flip-over Event, the Issuer shall:
(i) prepare and file a registration statement under
the Securities Act, with respect to the Rights and the
securities issuable upon exercise of the Rights on an
appropriate form, and shall use its best efforts to cause
such registration statement to (A) become effective as soon
as practicable after such filing and (B) remain effective
(with a prospectus at all times meeting the requirements of
the Securities Act) until the Expiration Date;
(ii) take all such action as may be appropriate under,
or to ensure compliance with, the securities or "blue sky"
laws of the various states in connection with the
exercisability of the Rights; and
(iii) deliver to holders of the Rights historical
financial statements for the Issuer and each of its
Affiliates which comply in all respects with the
requirements for registration on Form 10 under the Exchange
Act.
(d) The provisions of this Section 13 shall similarly apply
to successive mergers or consolidations or sales or other
transfers. In the event that a Flip-over Event occurs at any
time after the occurrence of a Flip-in Event, the Rights
which have not theretofore been exercised shall thereafter become
exercisable only in the manner described in Section 13(a) hereof.
Section 14. Fractional Rights and Fractional Securities.
-------------------------------------------
(a) The Company shall not be required to issue fractions of
Rights or to distribute Right Certificates which evidence
fractional Rights. In lieu of such fractional Rights, the
Company shall pay as promptly as practicable to the registered
holders of the Right Certificates with regard to which such
fractional Rights otherwise would be issuable, an amount in cash
equal to the same fraction of the current market value of a whole
Right. For the purposes of this Section 14(a), the current
market value of a whole Right shall be the closing price of the
Rights for the Trading Day immediately prior to the date on which
such fractional Rights otherwise would have been issuable. The
closing price for any day shall be the last sale price, regular
way, or, in case no such sale takes place on such day, the
average of the closing bid and asked prices, regular way, in
either case as reported in the principal consolidated transaction
reporting system with respect to securities listed or admitted to
trading on the New York Stock Exchange or, if the Rights are not
listed or admitted to trading on the New York Stock Exchange, as
reported in the principal consolidated transaction reporting
system with respect to securities listed on the principal
national securities exchange on which the Rights are listed or
admitted to trading or, if the Rights are not listed or admitted
to trading on any national securities exchange, the last quoted
sale price or, if not so quoted, the average of the high bid and
low asked prices in the over-the-counter market, as reported by
NASDAQ or such other system then in use or, if on any such date
the Rights are not quoted by any such organization, the average
of the closing bid and asked prices as furnished by a
professional market maker making a market in the Rights selected
by the Board of Directors of the Company. If on any such date no
such market maker is making a market in the Rights the fair value
of the Rights on such date as determined in good faith by the
Board of Directors of the Company shall be used.
(b) The Company shall not be required to issue fractions of
Common Shares or other securities issuable upon exercise or
exchange of the Rights or to distribute certificates which
evidence any such fractional securities. In lieu of issuing any
such fractional securities, the Company may pay to any Person to
whom or which such fractional securities would otherwise be
issuable an amount in cash equal to the same fraction of the
current market value of one such security. For purposes of this
Section 14(b), the current market value of a Common Share or
other security issuable upon the exercise or exchange of Rights
shall be the closing price thereof (as determined in the same
manner as set forth for Common Shares in the second sentence of
Section 11(d) hereof) for the Trading Day immediately prior to
the date of such exercise or exchange; provided, however, that if
neither the Common Shares nor any such other securities are
publicly held or listed or admitted to trading on any national
securities exchange, or the subject of available bid and asked
quotes, the current market value of one Common Share or such
other security shall be determined in good faith by the Board of
Directors of the Company.
Section 15. Rights of Action. All rights of action in
----------------
respect of this Agreement, excepting the rights of action given
to the Rights Agent under Section 18 hereof, are vested in
the respective registered holders of the Right Certificates (and,
prior to the Distribution Date, the registered holders of the
Common Shares); and any registered holder of any Right
Certificate (and, prior to the Distribution Date, of the Common
Shares), without the consent of the Rights Agent or of the holder
of any other Right Certificate (and, prior to the Distribution
Date, of the holder of any Common Shares), may in his own behalf
and for his own benefit enforce, and may institute and maintain
any suit, action or proceeding against the Company to enforce, or
otherwise act in respect of, his right to exercise the Rights
evidenced by such Right Certificate or Common Share certificate
in the manner provided in such Right Certificate and in this
Agreement. Without limiting the foregoing or any remedies
available to the holders of Rights, it is specifically
acknowledged that the registered holders of the Right
Certificates (and, prior to the Distribution Date, the registered
holders of the Common Shares) would not have an adequate remedy
at law for any breach of this Agreement and shall be entitled to
specific performance of the obligations under this Agreement, and
injunctive relief against actual or threatened violations of the
obligations of any Person subject to this Agreement.
Section 16. Agreement of Rights Holders. Every holder of
---------------------------
a Right by accepting the same consents and agrees with the
Company and the Rights Agent and with every other holder of a
Right that:
(a) Prior to the Distribution Date, the Rights shall be
transferable only in connection with the transfer of the Common
Shares;
(b) After the Distribution Date, the Right Certificates are
transferable only on the registry books of the Rights Agent if
surrendered at the principal office of the Rights Agent
designated for such purpose, duly endorsed or accompanied by a
proper instrument of transfer;
(c) The Company and the Rights Agent may deem and treat the
person in whose name the Right Certificate (or, prior to the
Distribution Date, the associated Common Share certificate) is
registered as the absolute owner thereof and of the Rights
evidenced thereby (notwithstanding any notations of ownership or
writing on the Right Certificate or the associated Common Share
certificate made by anyone other than the Company or the Rights
Agent) for all purposes whatsoever, and neither the Company nor
the Rights Agent shall be affected by any notice to the contrary;
(d) Such holder expressly waives any right to receive any
fractional Rights and any fractional securities upon exercise or
exchange of a Right, except as otherwise provided in Section 14
hereof.
(e) Notwithstanding anything in this Agreement to the
contrary, neither the Company nor the Rights Agent shall have any
liability to any holder of a Right or other Person as a result
of its inability to perform any of its obligations under this
Agreement by reason of any preliminary or permanent injunction
or other order, decree or ruling issued by a court of competent
jurisdiction or by a governmental, regulatory or administrative
agency or commission, or any statute, rule, regulation or
executive order promulgated or enacted by any governmental
authority, prohibiting or otherwise restraining performance of
such obligation; provided, however, that the Company shall use
its best efforts to have any such order, decree or ruling lifted
or otherwise overturned as soon as possible.
Section 17. Right Certificate Holder Not Deemed a Stockholder.
No holder, as such, of any Right Certificate shall be entitled to
vote, receive dividends or be deemed for any purpose the holder
of the Common Shares or any other securities of the Company which
may at any time be issuable upon the exercise of the Rights
represented thereby, nor shall anything contained herein or in
any Right Certificate be construed to confer upon the holder of
any Right Certificate, as such, any of the rights of a
stockholder of the Company or any right to vote for the election
of Directors or upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate
action, or to receive notice of meetings or other actions
affecting stockholders (except as provided in Section 24 hereof),
or to receive dividends or subscription rights, or otherwise,
until the Right or Rights evidenced by such Right Certificate
shall have been exercised in accordance with the provisions of
this Agreement or exchanged pursuant to the provisions of Section
27 hereof.
Section 18. Concerning the Rights Agent.
---------------------------
(a) The Company agrees to pay to the Rights Agent
reasonable compensation for all services rendered by it hereunder
and, from time to time, on demand of the Rights Agent, its
reasonable expenses and counsel fees and other disbursements
incurred in the administration and execution of this Agreement
and the exercise and performance of its duties hereunder. The
Company also agrees to indemnify the Rights Agent and its
affiliates and each of their directors, officers, employees and
agents (collectively, the "Indemnified Parties") for, and to hold
it harmless against, any damage, loss, liability, suit, action,
proceeding, cost or expense, incurred without gross negligence,
bad faith or willful misconduct on the part of the Indemnified
Parties, for anything done or omitted by the Indemnified Parties
in connection with the acceptance and administration of this
Agreement, including the costs and expenses of defending against
any claim or demand of liability arising therefrom, directly
or indirectly. The provisions of this Section 18(a) shall survive
the expiration of the Rights and termination of this Agreement.
(b) The Rights Agent and its Affiliates shall be protected
and shall incur no liability for or in respect of any action
taken, suffered or omitted by it in connection with its
administration of this Agreement in reliance upon any Right
Certificate or certificate evidencing Common Shares or other
securities of the Company, instrument of assignment or transfer,
power of attorney, endorsement, affidavit, letter, notice,
direction, consent, certificate, statement, or other paper or
document believed by it to be genuine and to be signed, executed
and, where necessary, verified or acknowledged, by the proper
Person or Persons.
Section 19. Merger or Consolidation or Change of Name of
---------------------------------------------
Rights Agent.
------------
(a) Any corporation into which the Rights Agent or any
successor Rights Agent may be merged or with which it may be
consolidated, or any corporation resulting from any merger or
consolidation to which the Rights Agent or any successor Rights
Agent shall be a party, or any corporation succeeding to the
corporate trust business of the Rights Agent or any successor
Rights Agent, shall be the successor to the Rights Agent under
this Agreement without the execution or filing of any paper or
any further act on the part of any of the parties hereto,
provided that such corporation would be eligible for appointment
as a successor Rights Agent under the provisions of Section 21
hereof. In case at the time such successor Rights Agent shall
succeed to the agency created by this Agreement, any of the Right
Certificates shall have been countersigned but not delivered, any
such successor Rights Agent may adopt the countersignature of the
predecessor Rights Agent and deliver such Right Certificates so
countersigned; and in case at that time any of the Right
Certificates shall not have been countersigned, any successor
Rights Agent may countersign such Right Certificates either in
the name of the predecessor Rights Agent or in the name of the
successor Rights Agent; and in all such cases such Right
Certificates shall have the full force provided in the Right
Certificates and in this Agreement.
(b) In case at any time the name of the Rights Agent shall
be changed and at such time any of the Right Certificates shall
have been countersigned but not delivered, the Rights Agent may
adopt the countersignature under its prior name and deliver Right
Certificates so countersigned; and in case at that time any of
the Right Certificates shall not have been countersigned, the
Rights Agent may countersign such Right Certificates either in
its prior name or in its changed name; and in all such cases such
Right Certificates shall have the full force provided in the
Right Certificates and in this Agreement.
(c) Limits on Damages. Notwithstanding anything in this
Agreement to the contrary, in no event shall the Rights Agent be
liable for special, indirect or consequential loss or damage of
any kind whatsoever (including but not limited to lost profits),
even if the Rights Agent has been advised of the likelihood of
such loss or damage and regardless of the form of the action.
Section 20. Duties of Rights Agent. The Rights Agent
----------------------
undertakes the duties and obligations imposed by this Agreement
upon the following terms and conditions, by all of which the
Company and the holders of Right Certificates, by their
acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel (who
may be legal counsel for the Company), and the opinion of such
counsel shall be full and complete authorization and protection
to the Rights Agent as to any action taken or omitted by it in
good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this
Agreement the Rights Agent shall deem it necessary or desirable
that any fact or matter be proved or established by the Company
prior to taking or suffering any action hereunder, such fact or
matter (unless other evidence in respect thereof be herein
specifically prescribed) may be deemed to be conclusively proved
and established by a certificate signed by any one of the
Chairman of the Board, the President or any Vice President of
the Company and delivered to the Rights Agent; and such
certificate shall be full authorization to the Rights Agent for
any action taken or suffered in good faith by it under the
provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder only for its
own gross negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason
of any of the statements of fact or recitals contained in this
Agreement or in the Right Certificates (except its
countersignature thereof) or be required to verify the same,
but all such statements and recitals are and shall be deemed to
have been made by the Company only.
(e) The Rights Agent shall not be under any responsibility
in respect of the validity of this Agreement or the execution and
delivery hereof (except the due execution and delivery hereof by
the Rights Agent) or in respect of the validity or execution of
any Right Certificate (except its countersignature thereof); nor
shall it be responsible for any breach by the Company of any
covenant or condition contained in this Agreement or in any Right
Certificate; nor shall it be responsible for any adjustment
required under the provisions of Section 11 or Section 13 hereof
(including any adjustment which results in Rights becoming void)
or responsible for the manner, method or amount of any such
adjustment or the ascertaining of the existence of facts that
would require any such adjustment (except with respect to the
exercise of Rights evidenced by Right Certificates after actual
notice of any such adjustment); nor shall it by any act
hereunder be deemed to make any representation or warranty as to
the authorization or reservation of any shares of stock or other
securities to be issued pursuant to this Agreement or any Right
Certificate or as to whether any shares of stock or other
securities will, when issued, be validly authorized and issued,
fully paid and nonassessable.
(f) The Company agrees that it will perform, execute,
acknowledge and deliver or ause to be performed, executed,
acknowledged and delivered all such further and other acts,
instruments and assurances as may reasonably be required by the
Rights Agent for the carrying out or performing by the Rights
Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to
accept instructions with respect to the performance of its
duties hereunder from any one of the Chairman of the Board,
the President or any Vice President of the Company, and to apply
to such officers for advice or instructions in connection with
its duties, and it shall not be liable for any action taken
or suffered to be taken by it in good faith in accordance with
instructions of any such officer.
(h) The Rights Agent and any stockholder, director, officer
or employee of the Rights Agent may buy, sell or deal in any of
the Rights or other securities of the Company or become
pecuniarily interested in any transaction in which the Company
may be interested, or contract with or lend money to the Company
or otherwise act as fully and freely as though it were not Rights
Agent under this Agreement. Nothing herein shall preclude the
Rights Agent from acting in any other capacity for the Company or
for any other legal entity.
(i) The Rights Agent may execute and exercise any of the
rights or powers hereby vested in it or perform any duty
hereunder either itself or by or through its attorneys or agents,
and the Rights Agent shall not be answerable or accountable for
any act, default, neglect or misconduct of any such attorneys or
agents or for any loss to the Company resulting from any such
act, default, neglect or misconduct, provided reasonable care was
exercised in the selection and continued employment thereof. The
Rights Agent shall not be under any duty or responsibility
to insure compliance with any applicable federal or state
securities laws in connection with the issuance, transfer or
exchange of Right Certificates.
(j) If, with respect to any Right Certificate surrendered
to the Rights Agent for exercise, transfer, split up, combination
or exchange, the certificate attached to the form of assignment
or form of election to purchase, as the case may be, has either
not been completed or indicates an affirmative response to
clause 1 or 2 thereof, the Rights Agent shall not take any
further action with respect to such requested exercise,
transfer, split up, combination or exchange, without first
consulting with the Company.
Section 21. Change of Rights Agent. The Rights Agent or any
----------------------
successor Rights Agent may resign and be discharged from its
duties under this Agreement upon 30 calendar days' notice in
writing mailed to the Company and to each transfer agent of the
Common Shares by registered or certified mail, and to the holders
of the Right Certificates by first-class mail. The Company may
remove the Rights Agent or any successor Rights Agent upon 30
calendar days' notice in writing, mailed to the Rights Agent or
successor Rights Agent, as the case may be, and to each transfer
agent of the Common Shares by registered or certified mail, and
to the holders of the Right Certificates by first-class mail. If
the Rights Agent shall resign or be removed or shall otherwise
become incapable of acting, the Company shall appoint a successor
to the Rights Agent. If the Company shall fail to make such
appointment within a period of 30 calendar days after giving
notice of such removal or after it has been notified in writing
of such resignation or incapacity by the resigning or
incapacitated Rights Agent or by the holder of a Right
Certificate (who shall, with such notice, submit his Right
Certificate for inspection by the Company), then the registered
holder of any Right Certificate may apply to any court of
competent jurisdiction for the appointment of a new Rights Agent.
Any successor Rights Agent, whether appointed by the Company or
by such a court, shall be a corporation organized and doing
business under the laws of the United States or of the States of
Alabama, New York or Illinois (or of any other state of the
United States so long as such corporation is authorized to do
business as a banking institution in the States of Alabama, New
York or Illinois), in good standing, having a principal office in
the States of Alabama, New York or Illinois, which is authorized
under such laws to exercise corporate trust, fiduciary or stock
services powers and is subject to supervision or examination by
federal or state authority and which has at the time of its
appointment as Rights Agent a combined capital and surplus of at
least $10 million. After appointment, the successor Rights Agent
shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named as Rights
Agent without further act or deed; but the predecessor Rights
Agent shall deliver and transfer to the successor Rights Agent
any property at the time held by it hereunder, and execute and
deliver any further assurance, conveyance, act or deed necessary
for the purpose. Not later than the effective date of any such
appointment, the Company shall file notice thereof in writing
with the predecessor Rights Agent and each transfer agent of the
Common Shares, and mail a notice thereof in writing to the
registered holders of the Right Certificates. Failure to give
any notice provided for in this Section 21, however, or any
defect therein, shall not affect the legality or validity of the
resignation or removal of the Rights Agent or the appointment of
the successor Rights Agent, as the case may be.
Section 22. Issuance of New Right Certificates.
----------------------------------
Notwithstanding any of the provisions of this Agreement or of the
Rights to the contrary, the Company may, at its option, issue new
Right Certificates evidencing Rights in such form as may be
approved by its Board of Directors to reflect any adjustment or
change in the Purchase Price per share and the number or kind of
securities issuable or property purchasable upon exercise of the
Rights made in accordance with the provisions of this Agreement.
In addition, in connection with the issuance or sale by the
Company of Common Shares following the Distribution Date and
prior to the Expiration Date, the Company (a) shall, with respect
to Common Shares so issued or sold pursuant to the exercise or
conversion of securities issued prior to the Distribution Date
which are exercisable for, or convertible into, Common Shares,
and (b) may, in any other case, if deemed necessary, appropriate
or desirable by the Board of Directors of the Company, issue
Right Certificates representing an equivalent number of Rights as
would have been issued in respect of such Common Shares if they
had been issued or sold prior to the Distribution Date, as
appropriately adjusted as provided herein as if they had been so
issued or sold; provided, however, that (i) no such Right
Certificate shall be issued if, and to the extent that, in its
good faith judgment the Board of Directors of the Company shall
have determined that the issuance of such Right Certificate could
have a material adverse tax consequence to the Company or to the
Person to whom or which such Right Certificate otherwise would be
issued, and (ii) no such Right Certificate shall be issued if,
and to the extent that, appropriate adjustment otherwise shall
have been made in lieu of the issuance thereof.
Section 23. Redemption.
----------
(a) The Board of Directors of the Company may, at its
option, at anytime prior to the earlier of (i) the Distribution
Date or (ii) the Final Expiration Date, redeem all, but not less
than all, of the then outstanding Rights at the Redemption Price.
The redemption of the Rights by the Board may be made effective
at such time, on such basis and with such conditions as the
Board, in its sole discretion, may establish.
(b) Immediately upon the action of the Board of Directors of
the Company ordering the redemption of the Rights, and without
any further action and without any notice, the right to exercise
the Rights shall terminate and the only right thereafter of the
holders of Rights shall be to receive the Redemption Price.
Promptly after the action of its Board of Directors ordering the
redemption of the Rights, the Company shall publicly announce
such action, and within 10 calendar days thereafter, the Company
shall give notice of such redemption to the holders of the then-
outstanding Rights by mailing such notice to all such holders at
their last addresses as they appear upon the registry books of
the Company; provided, however, that the failure to give, or any
defect in, any such notice shall not affect the validity of the
redemption of the Rights. Any notice which is mailed in the
manner herein provided shall be deemed given, whether or not the
holder receives the notice. The notice of redemption mailed to
the holders of Rights shall state the method by which the payment
of the Redemption Price will be made. The Company may, at its
option, pay the Redemption Price in cash, Common Shares (based
upon the current per share market price of the Common Shares
(determined pursuant to Section 11(d) hereof) at the time of
redemption) or any other form of consideration deemed appropriate
by the Board of Directors of the Company (based upon the fair
market value of such other consideration, determined by the Board
of Directors of the Company in good faith) or any combination
thereof.
Section 24. Notice of Certain Events.
------------------------
(a) In case, after the Distribution Date, the Company shall
propose (i) to pay any dividend payable in stock of any class to
the holders of Common Shares or to make any other distribution to
the holders of Common Shares (other than a regular periodic cash
dividend), (ii) to offer to the holders of Common Shares rights,
options or warrants to subscribe for or to purchase any
additional Common Shares or shares of stock of any class or any
other securities, rights or options, (iii) to effect any
reclassification of its Common Shares (other than a
reclassification involving only the subdivision of outstanding
Common Shares), (iv) to effect any consolidation or merger into
or with, or to effect any sale or other transfer (or to permit
one or more of its Subsidiaries to effect any sale or other
transfer), in one or more transactions, of assets or earning
power (including, without limitation, securities creating any
obligation on the part of the Company and/or any of its
Subsidiaries) representing more than 50% of the assets and
earning power of the Company and its Subsidiaries, taken as a
whole, to any other Person or Persons, or (v) to effect the
liquidation, dissolution or winding up of the Company, then, in
each such case, the Company shall give to each holder of a Right
Certificate, in accordance with Section 25 hereof, a notice of
such proposed action, which shall specify the record date for the
purposes of such stock dividend, distribution or offering of
rights, options or warrants, or the date on which such
reclassification, consolidation, merger, sale, transfer,
liquidation, dissolution, or winding up is to take place and the
date of participation therein by the holders of the Common
Shares, if any such date is to be fixed, and such notice shall be
so given, in the case of any action covered by clause (i) or (ii)
above, at least 10 calendar days prior to the record date for
determining holders of the Common Shares for purposes of such
action, and, in the case of any such other action, at least 10
calendar days prior to the date of the taking of such proposed
action or the date of participation therein by the holders of the
Common Shares, whichever shall be the earlier.
(b) In case any Triggering Event shall occur, then, in any
such case, the Company shall as soon as practicable thereafter
give to the Rights Agent and each holder of a Right Certificate,
in accordance with Section 25 hereof, a notice of the occurrence
of such event, which shall specify the event and the consequences
of the event to holders of Rights.
Section 25. Notices.
-------
(a) Notices or demands authorized by this Agreement to be
given or made by the Rights Agent or by the holder of any Right
Certificate to or on the Company shall be sufficiently given or
made if sent by first-class mail, postage prepaid, addressed
(until another address is filed in writing with the Rights Agent)
as follows:
Intergraph Corporation
One Madison Industrial Park IW2000
Huntsville, AL 35894-0001
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
(b) Subject to the provisions of Section 21 hereof, any
notice or demand authorized by this Agreement to be given or made
by the Company or by the holder of any Right Certificate to or on
the Rights Agent shall be sufficiently given or made if sent by
first-class mail, postage prepaid, addressed (until another
address is filed in writing with the Company) as follows:
Computershare Investor Services, LLC
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
(c) Notices or demands authorized by this Agreement to be
given or made by the Company or the Rights Agent to the holder of
any Right Certificate (or, if prior the Distribution Date, to the
holder of any certificate evidencing Common Shares) shall be
sufficiently given or made if sent by first-class mail, postage
prepaid, addressed to such holder at the address of such holder
as shown on the registry books of the Company.
Section 26. Supplements and Amendments. Prior to the
--------------------------
Distribution Date and subject to the last sentence of this
Section 26, if the Company so directs, the Company and the Rights
Agent may from time to time supplement or amend any provision of
this Agreement without the approval of any holders of
certificates representing Common Shares. From and after the
Distribution Date and subject to the last sentence of this
Section 26, the Company and the Rights Agent may supplement or
amend this Agreement without the approval of any holders of
Right Certificates in order (i) to cure any ambiguity, (ii) to
correct or supplement any provision contained herein which may be
defective or inconsistent with any other provisions herein, (iii)
to shorten or lengthen any time period hereunder, or (iv) to
supplement or amend the provisions hereunder in any manner which
the Company may deem desirable, including, without limitation,
the addition of other events requiring adjustment to the Rights
under Sections 11 or 13 hereof or procedures relating to the
redemption of the Rights, which supplement or amendment shall
not, in the good faith determination of the Board of Directors,
adversely affect the interests of the holders of Right
Certificates (other than an Acquiring Person or an Affiliate or
Associate of an Acquiring Person). Upon the delivery of a
certificate from an officer of the Company which states that the
proposed supplement or amendment is in compliance with the terms
of this Section 26 and certification that the Board of Directors
has approved the supplement or amendment, the Rights Agent shall
execute such supplement or amendment; provided, however, that the
failure or refusal of the Rights Agent to execute such supplement
or amendment shall not affect the validity of any supplement or
amendment adopted by the Company, any of which shall be effective
in accordance with the terms thereof. Notwithstanding anything
in this Agreement to the contrary, no supplement or amendment
shall be made which decreases the stated Redemption Price or the
period of time remaining until the Final Expiration Date or which
modifies a time period relating to when the Rights may be
redeemed at such time as the Rights are not then redeemable.
Further, notwithstanding anything in this Agreement to the
contrary, no supplement or amendment that changes the rights and
duties of the Rights Agent under this Agreement will be effective
against the Rights Agent without the execution of such supplement
or amendment by the Rights Agent.
Section 27. Exchange.
--------
(a) The Board of Directors of the Company may, at its
option, at any time after the later of the Distribution Date and
the first occurrence of a Triggering Event, exchange all or part
of the then-outstanding and exercisable Rights (which shall not
include Rights that have become void pursuant to the provisions
of Section 11(a)(ii) hereof) for Common Shares at an exchange
ratio of one Common Share per Right, appropriately adjusted to
reflect any stock split, stock dividend or similar transaction
occurring after the date hereof (such exchange ratio being
hereinafter referred to as the "Exchange Ratio").
Notwithstanding the foregoing, the Board of Directors shall not
be empowered to effect such exchange at any time after any Person
(other than the Company, any Subsidiary of the Company, any
employee benefit plan of the Company or any such Subsidiary, or
any Person holding Common Shares for or pursuant to the terms of
any such plan or for the purpose of funding any such plan or
funding other employee benefits for employees of the Company or
of any Subsidiary), who or which, together with all Affiliates
and Associates of such Person, becomes the Beneficial Owner of
50% or more of the Common Shares then outstanding.
(b) Immediately upon the action of the Board of Directors of
the Company ordering the exchange of any Rights pursuant to
Section 27(a) hereof, and without any further action and without
any notice, the right to exercise such Rights shall terminate and
the only right with respect to such Rights thereafter of the
holder of such Rights shall be to receive that number of Common
Shares equal to the number of such Rights held by such holder
multiplied by the Exchange Ratio. Promptly after the action of
the Board of Directors of the Company ordering the exchange of
any Rights pursuant to Section 27(a) hereof, the Company shall
publicly announce such action, and within 10 calendar days
thereafter shall give notice of any such exchange to all of the
holders of such Rights at their last addresses as they appear
upon the registry books of the Rights Agent; provided, however,
that the failure to give, or any defect in, such notice shall not
affect the validity of such exchange. Any notice which is mailed
in the manner herein provided shall be deemed given, whether or
not the holder receives the notice. Each such notice of exchange
shall state the method by which the exchange of the Common Shares
for Rights will be effected and, in the event of any partial
exchange, the number of Rights which will be exchanged. Any
partial exchange shall be effected pro rata based on the number
of Rights (other than Rights which have become void pursuant to
the provisions of Section 11(a)(ii) hereof) held by each holder
of Rights.
(c) In any exchange pursuant to this Section 27, the
Company, at its option, may substitute for any Common Share
exchangeable for a Right, (i) equivalent common shares (as such
term is used in Section 11(a)(iii) hereof), (ii) cash, (iii) debt
securities of the Company, (iv) other assets, or (v) any
combination of the foregoing, in any event having an aggregate
value which the Board of Directors of the Company shall have
determined in good faith to be equal to the current per share
market price of one Common Share (determined pursuant to Section
11(d) hereof) on the Trading Day immediately preceding the date
of exchange pursuant to this Section 27.
Section 28. Successors; Certain Covenants. All the covenants
-----------------------------
and provisions of this Agreement by or for the benefit of the
Company or the Rights Agent shall bind and inure to the benefit
of their respective successors and assigns hereunder.
Section 29. Benefits of this Agreement. Nothing in this
--------------------------
Agreement shall be construed to give to any Person other than the
Company, the Rights Agent and the registered holders of the Right
Certificates (and, prior to the Distribution Date, the registered
holders of the Common Shares) any legal or equitable right,
remedy or claim under this Agreement; but this Agreement shall be
for the sole and exclusive benefit of the Company, the Rights
Agent and the registered holders of the Right Certificates (and,
prior to the Distribution Date, the registered holders of the
Common Shares).
Section 30. Severability. If any term, provision, covenant
------------
or restriction of this Agreement is held by a court of competent
jurisdiction or other authority to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants
and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
Section 31. Governing Law. This Agreement and each Right
-------------
Certificate issued hereunder shall be deemed to be a contract
made under the internal substantive laws of the State of Delaware
and for all purposes shall be governed by and construed in
accordance with the internal substantive laws of such State
applicable to contracts to be made and performed entirely within
such State.
Section 32. Counterparts. This Agreement may be executed in
------------
any number of counterparts and each of such counterparts shall
for all purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same
instrument.
Section 33. Descriptive Headings. Descriptive headings of
--------------------
the several Sections of this Agreement are inserted for
convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and their respective corporate
seals to be hereunto affixed and attested, all as of the day and
year first above written.
[SEAL]
Attest: INTERGRAPH CORPORATION
By: March 5, 2002 By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------- ---------------------------------
Title: Director, Excutive Vice
------------------------------
President, and Chief Financial
------------------------------
Officer
------------------------------
Secretary
[SEAL]
Attest: COMPUTERSHARE INVESTOR SERVICES, LLC
By: March 5, 2002 By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------- ---------------------------------
Title: Relationship Manager
------------------------------
Exhibit A
---------
Form of Right Certificate
Certificate No. R-
Rights
----------------
NOT EXERCISABLE AFTER MARCH 5, 2012 OR
EARLIER IF REDEEMED. THE RIGHTS ARE
SUBJECT TO REDEMPTION AT THE OPTION OF
THE COMPANY, AT $0.01 PER RIGHT ON THE
TERMS SET FORTH IN THE AMENDED AND
RESTATED RIGHTS AGREEMENT. UNDER
CERTAIN CIRCUMSTANCES SPECIFIED IN THE
AMENDED AND RESTATED RIGHTS AGREEMENT,
RIGHTS BENEFICIALLY OWNED BY AN
ACQUIRING PERSON OR AN AFFILIATE OR AN
ASSOCIATE OF AN ACQUIRING PERSON (AS
SUCH TERMS ARE DEFINED IN THE AMENDED
AND RESTATED RIGHTS AGREEMENT) MAY
BECOME NULL AND VOID.
Right Certificate
Intergraph Corporation
This certifies that ------------------, or registered
assigns, is the registered owner of the number of Rights set
forth above, each of which entitles the owner thereof, subject to
the terms, provisions and conditions of the Amended and Restated
Rights Agreement, dated March 5, 2002 (the "Rights Agreement"),
between Intergraph Corporation, a Delaware corporation (the
"Company"), and Computershare Investor Services, LLC, a Delaware
limited liability company (the "Rights Agent"), to purchase from
the Company at any time after the Distribution Date (as such term
is defined in the Rights Agreement) and prior to 5:00 P.M.
(Chicago time) on March 5, 2012 at the principal office or
offices of the Rights Agent designated for such purpose, one
fully paid nonassessable share of Common Stock, par value $.10
per share (the "Common Shares"), of the Company, at a purchase
price of $65.00 per Common Share (the "Purchase Price"), upon
presentation and surrender of this Right Certificate with the
Form of Election to Purchase and related Certificate duly
executed. If this Right Certificate shall be exercised in part,
the holder shall be entitled to receive upon surrender hereof
another Right Certificate or Right Certificates for the number of
whole Rights not exercised. The number of Rights evidenced by
this Right Certificate (and the number of Common Shares which may
be purchased upon exercise thereof) set forth above, and the
Purchase Price set forth above, are the number and Purchase Price
as of March 5, 2002 based on the Common Shares as constituted at
such date.
As provided in the Rights Agreement, the Purchase Price and
the number and kind of securities issuable upon the exercise of
the Rights evidenced by this Right Certificate are subject to
adjustment upon the happening of certain events.
This Right Certificate is subject to all of the terms,
provisions and conditions of the Rights Agreement, which terms,
provisions and conditions are hereby incorporated herein by
reference and made 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 of the
Rights Agent, the Company and the holders of the Right
Certificates, which limitations of rights include the temporary
suspension of the exercisability of the Rights under the
circumstances specified in the Rights Agreement. Copies of the
Rights Agreement are on file at the above-mentioned office of the
Rights Agent.
Pursuant to the Rights Agreement, from and after the later
of the Distribution Date and the first occurrence of a Flip-in
Event (as such terms is defined in the Rights Agreement), (i) any
Rights that are or were acquired or beneficially owned by any
Acquiring Person (or any Affiliate or Associate of such Acquiring
Person) shall be void and any holder of such Rights shall
thereafter have no right to exercise such Rights under any
provision of the Rights Agreement, (ii) no Right Certificate
shall be issued pursuant to the Rights Agreement that represents
Rights beneficially owned by an Acquiring Person or any Affiliate
or Associate thereof, (iii) no Right Certificate shall be issued
at any time upon the transfer of any Rights to an Acquiring
Person or any Affiliate or Associate thereof or to any nominee of
such Acquiring Person or Affiliate or Associate thereof, and (iv)
any Right Certificate delivered to the Rights Agent for transfer
to an Acquiring Person or any Affiliate or Associate thereof
shall be cancelled.
This Right Certificate, with or without other Right
Certificates, may be transferred, split up, combined or exchanged
for another Right Certificate or Right Certificates, entitling
the holder to purchase a like number of Common Shares (or other
securities, as the case may be) as the Right Certificate or Right
Certificates surrendered shall have entitled such holder (or
former holder in the case of a transfer) to purchase, upon
presentation and surrender hereof at the principal office of the
Rights Agent designated for such purpose, with the Form of
Assignment (if appropriate) and the related Certificate duly
executed.
Subject to the provisions of the Rights Agreement, the
Rights evidenced by this Certificate may be redeemed by the
Company at its option at a redemption price of $0.01 per Right.
Subjection to the provisions of the Rights Agreement, the
Rights evidenced by this Certificate may be exchanged by the
Company at its option at an exchange ratio of one Common Share
per Right.
The Rights Agreement may be supplemented and amended by the
Company as provided therein.
The Company is not required to issue fractional Common
Shares or other securities issuable upon the exercise of any
Right or Rights evidenced hereby. In lieu of issuing such
fractional Common Shares or other securities, the Company may
make a cash payment, as provided in the Rights Agreement.
No holder of this Right Certificate, as such, shall be
entitled to vote or receive dividends or be deemed for any
purpose the holder of the Common Shares or of any other
securities of the Company which may at any time be issuable upon
the exercise of the Right or Rights represented hereby, nor shall
anything contained herein or in the Rights Agreement be construed
to confer upon the holder hereof, as such, any of the rights of a
stockholder of the Company or any right to vote for the election
of directors or upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate
action, or to receive notice of meetings or other actions
affecting stockholders (except as provided in the Rights
Agreement), or to receive dividends or subscription rights, or
otherwise, until the Right or Rights evidenced by this Right
Certificate shall have been exercised in accordance with the
provisions of the Rights Agreement.
This Right Certificate shall not be valid or obligatory for
any purpose until it shall have been countersigned by the Rights
Agent.
WITNESS the facsimile signature of the proper officers of
the Company and its corporate seal. Dated as of -------------- ,
20--
ATTEST: INTERGRAPH CORPORATION
By
------------------------------ ---------------------
Secretary Title:
(SEAL)
Countersigned:
COMPUTERSHARE INVESTOR SERVICES, LLC
By
---------------------------------
Authorized Signature
Form of Reverse Side of Right Certificate
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Right Certificate)
FOR VALUE RECEIVED, -------------------- hereby sells,
assigns and transfers unto
-----------------------------------------------------------------
(Please print name and address of transferee)
-----------------------------------------------------------------
this Right Certificate, together with all right, title and
interest therein, and does hereby irrevocable constitute and
appoint ---------------------------- Attorney, to transfer the
within Right Certificate on the books of the within-named
Company, with full power of substitution.
Dated: 20
-----------------, --
-----------------------
Signature
Signature Guaranteed:
CERTIFICATE
-----------
The undersigned hereby certifies by checking the
appropriate boxes that:
(1) the Rights evidenced by this Right Certificate [ ]
are [ ] are not being sold, assigned, transferred, split up,
combined, exchanged by or on behalf of a Person who is or was an
Acquiring Person or an Affiliate or Associate of any such Person
(as such terms are defined in the Amended and Restated Rights
Agreement);
(2) After due inquiry and to the best knowledge of the
undersigned, it [ ] did [ ] did not acquire the Rights
evidenced by this Right Certificate from any Person who is, was
or became an Acquiring Person or an Affiliate or Associate of an
Acquiring Person.
Dated: 20
-----------------, --
-----------------------
Signature
FORM OF ELECTION TO PURCHASE
----------------------------
(To be executed if holder desires to
exercise the Right Certificate)
To Intergraph Corporation:
The undersigned hereby irrevocably elects to exercise
--------------------- Rights represented by this Right
Certificate to purchase the Common Shares or other securities
issuable upon the exercise of such Rights and requests that
certificates for such securities be issued in the name of:
Please insert social security
or other identifying number
-----------------------
-----------------------------------------------------------------
(Please print name and address)
If such number of Rights shall not be all the Rights evidenced by
this Right Certificate, a new Right Certificate for the balance
remaining of such Rights shall be registered in the name of an
delivered to:
Please insert social security
or other identifying number
-----------------------
-----------------------------------------------------------------
(Please print name and address)
-----------------------------------------------------------------
CERTIFICATE
-----------
The undersigned hereby certifies by checking the appropriate
boxes that:
(1) the Rights evidenced by this Right Certificate [ ]
are [ ] are not being exercised by or on behalf of a Person who
is or was an Acquiring Person or an Affiliate or Associate of any
such Person (as such terms are defined pursuant to the Rights
Agreement);
(2) after due inquiry and to the best knowledge of the
undersigned, it [ ] did [ ] did not acquire the Rights
evidenced by this Right Certificate from any Person who is, was
or became an Acquiring Person or an Affiliate or Associate of an
Acquiring Person.
Dated: 20
-----------------, --
-----------------------
Signature
NOTICE
------
Signatures on the foregoing Form of Assignment and Form of
Election to Purchase and in the related Certificates must
correspond to the names as written upon the face of this Right
Certificate in every particular, without alteration or
enlargement or any change whatsoever.
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.
EXHIBIT B
---------
Summary of Rights to Purchase Common Stock
On August 25, 1993, our board of directors approved the
adoption of a Rights Agreement (commonly known as a "poison
pill"). It was amended on March 16, 1999. On March 4, 2002, our
board of directors approved the adoption of a Amended and
Restated Rights Agreement. The discussion below describes the
Amended and Restated Rights Agreement entered into between us and
Computershare Investor Services, LLC, as rights agent, dated as
of March 5, 2002, (the "Amended and Restated Rights Agreement")
but is not complete, and should be read together with the Amended
and Restated Rights Agreement which you may obtain from us free
of charge at ▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇.
Issuance of Rights
Under the Rights Agreement, we issued one stock purchase
right for each share of our common stock, $.10 par value per
share, outstanding on September 7, 1993. In addition, one right
has or will automatically attach to each share of common stock
that we issue between that date and the time that the rights
become exercisable. When exercised, each right, as amended, will
entitle its holder to purchase from us one share of our common
stock, $.10 par value per share, at an exercise price of $65.00
per unit, subject to adjustment.
Initial Exercise of Rights
The rights initially will not be exercisable. Instead, the
rights will be attached to and trade with all shares of our
common stock outstanding as of, and issued after, September 7,
1993. The rights will separate from the common stock and will
become exercisable upon the earlier of the following events (the
"distribution date"):
o The close of business on the tenth business day (or
later day as our board of directors may determine)
following the first public announcement that a person
or group of affiliated or associated persons has
acquired beneficial ownership of 15% (or 10% in the
case of an "Adverse Person", as determined by our
board of directors) or more of our shares of common
stock then outstanding (an "Acquiring Person"); or
o The close of business on the tenth business day (or
some later day as our board of directors may determine)
following the commencement of a tender offer or
exchange offer that could result in a person or group
becoming the beneficial owner of 15% or more of our
shares of common stock then outstanding.
The rights will expire at the close of business on March 5,
2012, unless we redeem or exchange the rights as described below.
Evidence of Rights
Until the rights become exercisable:
o The rights will be evidenced by and transferred with
our common stock certificates; and
o New common stock certificates issued after March 5,
2002 will contain a notation incorporating the Amended
and Restated Rights Agreement by reference; and
o Any surrender for transfer of any certificates for our
common stock will also constitute the transfer of the
rights associated with the common stock represented by
those certificates.
As soon as practicable after the rights become exercisable,
we will mail out rights certificates to the holders of our common
stock who are eligible to receive rights. After we mail them
out, the separate rights certificates alone will represent the
rights.
Exercise After Someone Becomes an Acquiring Person
After public announcement that a person has become an
Acquiring Person, each holder of a right will have the right to
receive upon exercise of the rights that number of shares of
common stock (or in our board's discretion, some other
consideration), having a value of two times the then current
purchase price of the right. However, this will not apply to an
Acquiring Person or their associates or affiliates, whose rights
will have become null and void.
Under certain circumstances, each holder of a right will
have the right to receive, upon exercise of the rights, common
stock of a company acquiring us, having a value equal to two
times the then current purchase price of the right. Each holder
of a right will receive the right contemplated by this paragraph
in the event that, at any time on or after the date it is
publicly announced that a person has become an Acquiring Person:
o We consolidate with, or merge with and into, any other
person, and we are not the continuing or surviving
corporation; or
o Any person consolidates with us, or merges with us and
we are the continuing or surviving corporation of that
merger and, in connection with that merger, all or part
of the shares of our common stock are changed into or
exchanged for stock or other securities of any other
person or cash or any other property; or
o We sell or transfer 50% or more of our assets or earning
power.
The holder of a right will continue to have this right
whether or not that holder has previously exercised its right in
accordance with the first paragraph of this subsection. Rights
that are or were beneficially owned by an Acquiring Person may
(under certain circumstances specified in the Amended and
Restated Rights Agreement) become null and void.
Exchange
At any time after a person becomes an Acquiring Person, we
may exchange all or part of the outstanding and exercisable
rights for shares of our common stock at an exchange ratio
specified in the Amended and Restated Rights Agreement. We
generally may not make an exchange after any person becomes the
beneficial owner of 50% or more of our common stock.
Adjustment
The purchase price and the number of shares of common stock
or other securities or property issuable upon exercise of the
rights is subject to adjustment from time to time to prevent
certain types of dilution. With certain exceptions, the purchase
price of the rights will not be adjusted until cumulative
adjustments amount to at least 1% of the purchase price. We are
not obligated to issue fractional units or shares of common
stock. If we decide not to issue fractional units or shares, we
will make an adjustment in cash based on the fair market value of
a unit or share on the last trading date prior to the date of
exercise.
Redemption
We may redeem the rights in whole, but not in part, at a
price of $0.01 per right (payable in cash, stock or other
consideration that we deem appropriate). However, we may only
redeem the rights until the earlier of ten days after someone
becomes an Acquiring Person or March 5, 2012.
Once redeemed, the rights will terminate immediately and the
only right of the holders of the rights will be to receive the
redemption price.
Amendment of Amended and Restated Rights Agreement
We may amend the Amended and Restated Rights Agreement
without the approval of the holders of our common stock until the
distribution date. After the distribution date, we will only be
able to amend the Amended and Restated Rights Agreement in order
to cure any ambiguity, defect or inconsistency, to shorten or
lengthen any time period, or to make changes that do not
adversely affect the interests of rights holders excluding the
interests of an Acquiring Person or their associates or
affiliates. We may only amend the time period governing
redemption of the rights if the rights are presently redeemable.
Other
The holder of a right will not, solely by virtue of having
such right, have any shareholder rights until the right is
exercised. This means, for example, that until it is exercised,
a right will not entitle its holder to vote or receive dividends
as one of our shareholders. The distribution of the rights will
not be taxable to shareholders or to us. However, shareholders
may, depending upon the circumstances, recognize taxable income
in the event that the rights become exercisable for units of
common stock, other consideration or for common stock of an
acquiring company.
The discussion above describes the rights and the Amended
and Restated Rights Agreement, but is not complete, and should be
read together with the Amended and Restated Rights Agreement
which you may obtain from us upon request.
As of February 28, 2002, 50,005,886 shares of our
common stock were issued and outstanding. As long as the rights
are attached to our common stock, we will issue one right for
each share of our common stock issued between September 7, 1993
and the distribution date.
The rights may have certain anti-takeover effects. The
rights will cause substantial dilution to a person or group that
attempts to acquire us on terms not approved by a majority of our
board of directors unless the offer is conditioned on a
substantial number of rights being acquired. However, the rights
should not interfere with any merger or other business
combination approved by our board of directors since the rights
may be redeemed by us at $0.01 per right at any time on or prior
to the tenth day following the announcement that someone has
become an Acquiring Person. Thus, the rights are intended to
encourage persons who may seek to acquire control of us to
initiate such an acquisition through negotiations with our board
of directors. However, the effect of the rights may be to
discourage a third party from making a partial tender offer or
otherwise attempting to obtain a substantial position in our
equity securities or seeking to obtain control of us. To the
extent any potential acquirers are deterred by the rights, the
rights may have the effect of preserving incumbent management in
office.