Rights Agreement Dated as of September 25, 2007, By and Between Harsco Corporation and Mellon Investor Services LLC, as Rights Agent
EXHIBIT
4.1
Dated
as
of September 25, 2007,
By
and
Between
Harsco
Corporation
and
Mellon
Investor Services LLC,
as
Rights
Agent
TABLE
OF CONTENTS
|
Certain
Definitions
|
1
|
|
|
2.
|
Appointment
of Rights Agent
|
5
|
|
3.
|
Issue
of Right Certificates
|
5
|
|
4.
|
Form
of Right Certificates
|
6
|
|
5.
|
Countersignature
and Registration
|
7
|
|
6.
|
Transfer,
Split Up, Combination and Exchange of Right Certificates; Mutilated,
Destroyed, Lost or Stolen Right Certificates
|
7
|
|
7.
|
Exercise
of Rights; Purchase Price; Expiration Date of Rights
|
8
|
|
8.
|
Cancellation
and Destruction of Right Certificates
|
9
|
|
9.
|
Company
Covenants Concerning Securities and Rights
|
10
|
|
10.
|
Record
Date
|
11
|
|
11.
|
Adjustment
of Purchase Price, Number and Kind of Securities or Number of
Rights
|
12
|
|
12.
|
Certificate
of Adjusted Purchase Price or Number of Securities
|
20
|
|
13.
|
Consolidation,
Merger or Sale or Transfer of Assets or Earning Power
|
20
|
|
14.
|
Fractional
Rights and Fractional Securities
|
23
|
|
15.
|
Rights
of Action
|
24
|
|
16.
|
Agreement
of Rights Holders
|
25
|
|
17.
|
Right
Certificate Holder Not Deemed a ▇▇▇▇▇▇▇▇▇▇▇
|
▇▇
|
|
▇▇.
|
Concerning
the Rights Agent
|
26
|
|
19.
|
Merger
or Consolidation or Change of Name of Rights Agent
|
26
|
|
20.
|
Duties
of Rights Agent
|
27
|
|
21.
|
Change
of Rights Agent
|
29
|
|
22.
|
Issuance
of New Right Certificates
|
30
|
|
23.
|
Redemption
|
30
|
|
24.
|
Exchange
|
31
|
|
25.
|
Notice
of Certain Events
|
32
|
|
26.
|
Notices
|
33
|
i
|
27.
|
Supplements
and Amendments
|
33
|
|
28.
|
Successors;
Certain Covenants
|
34
|
|
29.
|
Benefits
of This Agreement
|
34
|
|
30.
|
Governing
Law
|
34
|
|
31.
|
Severability
|
35
|
|
32.
|
Descriptive
Headings, Etc
|
35
|
|
33.
|
Determinations
and Actions by the Board
|
35
|
|
34.
|
Effective
Time
|
36
|
|
35.
|
Counterparts
|
36
|
|
Exhibit
A
|
A-1
|
|
Exhibit
B
|
B-1
|
|
Exhibit
C
|
C-1
|
ii
This
Rights Agreement, dated as of September 25, 2007 (this
“Agreement”), is made and entered into by and between
Harsco Corporation, a Delaware corporation (the
“Company”), and Mellon Investor Services LLC, as
Rights Agent (the “Rights Agent”).
RECITALS
WHEREAS,
on September 25, 2007, the Board of Directors of the Company (the
“Board of Directors”) authorized and declared a
dividend distribution of one right (a “Right”) for
each share of Common Stock, par value $1.25 per share, of the Company (a
“Common Share”) outstanding as of the Close of
Business (as hereinafter defined) on October 9, 2007 (the
“Record Date”), each Right initially representing the
right to purchase one one-hundredth of a Preferred Share (as hereinafter
defined), on the terms and subject to the conditions herein set forth, and
further authorized and directed the issuance of one Right (subject to adjustment
as provided herein) with respect to each Common Share 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) or as
provided in Section 22.
NOW,
THEREFORE, in consideration of the mutual agreements herein set forth, the
parties hereto hereby agree as follows:
1. Certain
Definitions. For purposes of this Agreement, the following terms
have the meanings indicated:
(a) “Acquiring
Person” means any Person (other than the Company or any Related
Person) who or which, together with all Affiliates and Associates of such
Person, is or becomes the Beneficial Owner of 15% or more
of the then-outstanding Common Shares; provided, however, that a
Person will 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
such
time as (A) such Person or any Affiliate or Associate of such Person
thereafter becomes the Beneficial Owner of additional Common Shares representing
1% or more of the then-outstanding 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 (B) any other
Person who is the Beneficial Owner of Common Shares representing 1% or more
of
the then-outstanding Common Shares thereafter becomes an Affiliate or Associate
of such Person. Notwithstanding the foregoing, if the Board of Directors of
the
Company determines in good faith that a Person who would otherwise be an
“Acquiring Person” as defined pursuant to the foregoing provisions of this
Section 1(a), has become such inadvertently, and such Person divests as promptly
as practicable or agrees in writing with the Company to divest, a sufficient
number of Common Shares so that such Person would no longer be an “Acquiring
Person” as defined pursuant to the foregoing provisions of this Section 1(a),
then such Person shall not be deemed to be an “Acquiring Person” for any
purposes of this Agreement.
(b) “Affiliate”
and “Associate” will 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, provided, however, that a Person will not
be deemed to be the Affiliate or Associate of another Person solely because
either or both Persons are or were Directors of the Company.
(c) A
Person
will 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 is deemed to
beneficially own, directly or indirectly, within the meaning of Rule 13d-3
of
the General Rules and Regulations under the Exchange Act as in effect on the
date of this Agreement;
(ii) the
beneficial ownership of which such Person or any of such Person’s Affiliates or
Associates, directly or indirectly, has the right to acquire (whether such
right
is exercisable immediately or only after the passage of time) pursuant to any
agreement, arrangement or understanding (whether or not in writing), or upon
the
exercise of conversion rights, exchange rights, warrants, options or other
rights (in each case, other than upon exercise or exchange of the Rights);
provided, however, that a Person will 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
(iii) which
such Person or any of such Person’s Affiliates or Associates, directly or
indirectly, has or shares the right to vote or dispose of, including pursuant
to
any agreement, arrangement or understanding (whether or not in writing);
or
(iv) of
which
any other Person is the Beneficial Owner, if such Person or any of such Person’s
Affiliates or Associates has any agreement, arrangement or understanding
(whether or not in writing) with such other Person (or any of such other
Person’s Affiliates or Associates) with respect to acquiring, holding, voting or
disposing of any securities of the Company;
provided,
however, that a Person will 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 or consent given
to
such Person in response to a public proxy or consent solicitation made pursuant
to, and in accordance with, the applicable rules and regulations of the Exchange
Act and (2) is not also then reportable on Schedule 13D under the Exchange
Act
(or any comparable or successor report), or (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; providedfurther,
however, that nothing in this Section 1(c) will cause a Person
engaged in
business as an underwriter of securities to be the Beneficial Owner of, or
to
Beneficially Own, any securities acquired through such Person’s participation in
good faith in an underwriting syndicate 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.
2
(d) “Business
Day” means any day other than a Saturday, Sunday or a day on which
banking institutions in the State of New York or New Jersey are authorized
or
obligated by law or executive order to close.
(e) “Close
of Business” on any given date means 5:00 p.m., New York City
time, on such date; provided, however, that if such date is not a
Business Day, it means 5:00 p.m., New York City time, on the next succeeding
Business Day.
(f) “Common
Shares” when used with reference to the Company means the shares
of Common Stock, par value $1.25 per share, of the Company; provided,
however, that if the Company is the continuing or surviving corporation
in a transaction described in Section 13(a)(ii), “Common Shares” when used with
reference to the Company means shares of the capital stock or units of the
equity interests with the greatest aggregate voting power of the
Company. “Common Shares” when used with reference to any corporation
or other legal entity other than the Company, including an Issuer, means shares
of the capital stock or units of the equity interests with the greatest
aggregate voting power of such corporation or other legal entity.
(g) “Company”
means Harsco Corporation, a Delaware corporation.
(h) “Distribution
Date” means the earlier of: (i) the Close of Business
on the tenth calendar day following the Share Acquisition
Date (or, if the tenth calendar day after the Share Acquisition Date occurs
before the Record Date, the Close of Business on the Record Date), or (ii)
the
Close of Business on the tenth Business Day (or, unless the Distribution Date
shall have previously occurred, such later date as may be specified by the
Board
of Directors of the Company) after the commencement of a tender or exchange
offer by any Person (other than the Company or any Related Person), if upon
the
consummation thereof such Person would be the Beneficial Owner of 15% or more
of
the then-outstanding Common Shares.
(i) “Exchange
Act” means the Securities Exchange Act of 1934, as
amended.
(j) “Expiration
Date” means the earliest of (i) the Close of Business on the tenth
anniversary of the Record Date, (ii) the time at which the Rights are redeemed
as provided in Section 23, and (iii) the time at which all exercisable Rights
are exchanged as provided in Section 24.
(k) “Flip-in
Event” means any event described in clauses (A), (B) or (C) of
Section 11(a)(ii).
(l) “Flip-over
Event” means any event described in clauses (i), (ii) or (iii) of
Section 13(a).
(m) “Issuer”
has the meaning set forth in Section 13(b).
(n) “Person”
means any individual, firm, corporation, limited liability company, partnership,
trust or other legal entity, and includes any successor (by merger or otherwise)
of such entity.
3
(o) “Preferred
Shares” means shares of Series A Junior Participating Cumulative
Preferred Stock, par value $1.25 per share, of the Company having substantially
the rights and preferences set forth in the form of Amended Certificate of
Designation, Preferences and Rights attached as
Exhibit A.
(p) “Purchase
Price” means initially $230.00 per one one-hundredth of a
Preferred Share, subject to adjustment from time to time as provided in this
Agreement.
(q) “Record
Date” has the meaning set forth in the Recitals to this
Agreement.
(r) “Redemption
Price” means $0.001 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 Record Date.
(s) “Related
Person” means (i) any Subsidiary of the Company or (ii) any
employee benefit or stock ownership plan of the Company or of any Subsidiary
of
the Company or any entity holding Common Shares for or pursuant to the terms
of
any such plan.
(t) “Right”
has the meaning set forth in the Recitals to this Agreement.
(u) “Right
Certificates” means certificates evidencing the Rights, in
substantially the form attached as Exhibit B.
(v) “Rights
Agent” means Mellon Investor Services LLC, unless and until a
successor Rights Agent has become such pursuant to the terms of this Agreement,
and thereafter, “Rights Agent” means such successor Rights Agent.
(w) “Securities
Act” means the Securities Act of 1933, as amended.
(x) “Share
Acquisition Date” means the first date of public announcement by
the Company (by press release, filing made with the Securities and Exchange
Commission or otherwise) that an Acquiring Person has become such.
(y) “Subsidiary”
when used with reference to any Person means any corporation or other legal
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),
“Subsidiary” when used with reference to any Person means any corporation
or
other legal 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.
(z) “Trading
Day” means any day on which the principal national securities
exchange or quotation system 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 or
quotation system, a Business Day.
(aa) “Triggering
Event” means any Flip-in Event or Flip-over Event.
4
2. Appointment
of Rights Agent. The Company hereby appoints the Rights Agent to
act as agent for the Company in accordance with the terms and conditions of
this
Agreement, and the Rights Agent hereby accepts such appointment. The
Company may from time to time 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 will
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. The Rights Agent shall have no duty to
supervise, and in no event will be liable for, the acts or omissions of any
such
co-Rights Agent.
3. Issue
of Right Certificates. (a) Until the Distribution Date, (i) the
Rights will be evidenced by the certificates representing Common Shares
registered in the names of the record holders thereof, which certificates
representing Common Shares will also be deemed to be Right Certificates (or,
if
the Common Shares are uncertificated, by the registration of the associated
Common Shares on the stock transfer books of the Company), (ii) the Rights
will
be transferable only in connection with the transfer of the underlying Common
Shares, (iii) the transfer of any Common Shares in respect of which Rights
have
been issued will also constitute the transfer of the Rights associated with
such
Common Shares, and (iv) the interests of the holders of the Rights as such
shall
be deemed coincident with the interests of the holders of the Common
Shares. Commencing as promptly as practicable after the Record Date,
the Company will make available a copy of a Summary of Rights to Purchase
Preferred Stock in substantially the form attached as Exhibit C to
any holder of Rights who may request it from time to time prior to the
Expiration Date.
(b) Rights
will 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 will have
stamped on, impressed on, printed on, written on, or otherwise affixed to them
substantially the following legend or such similar legend as the Company may
deem appropriate (but which does not affect the rights, duties or
responsibilities of the Rights Agent) 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 quotation 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 a Rights Agreement between Harsco Corporation and Mellon Investor
Services LLC, dated as of September 25, 2007 (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
Harsco Corporation. The Rights are not exercisable prior to the
occurrence of certain events specified in the Rights Agreement. 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. Harsco Corporation will mail to the holder of this
5
Certificate
a copy of the Rights Agreement, as in effect on the date of mailing, without
charge promptly after receipt of a written request therefor. Under
certain circumstances as set forth in the Rights Agreement, Rights that are
or
were 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.
(c) Any
Right
Certificate issued pursuant to this Section 3 that represents Rights
beneficially owned by an Acquiring Person or any Associate or Affiliate thereof
and any Right Certificate issued at any time upon the transfer of any Rights
to
an Acquiring Person or any Associate or Affiliate thereof or to any nominee
of
such Acquiring Person, Associate or Affiliate and any Right Certificate issued
pursuant to Section 6 or 11 hereof upon transfer, exchange, replacement or
adjustment of any other Right Certificate referred to in this sentence, shall
be
subject to and may (to the extent feasible) contain substantially the following
legend or such similar legend as the Company may deem appropriate (but which
does not affect the rights, duties or responsibilities of the Rights Agent)
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 on which
the Rights may from time to time be listed, or to conform to usage:
The
Rights represented by this Right Certificate are or were beneficially owned
by a
Person who was an Acquiring Person or an Affiliate or an Associate of an
Acquiring Person (as such terms are defined in the Rights Agreement). This
Right
Certificate and the Rights represented hereby may become null and void in the
circumstances specified in Section 11(a)(ii) or Section 13 of the Rights
Agreement.
(d) As
promptly as practicable after the Distribution Date, the Company will prepare
and execute, the Rights Agent will countersign and the Company will send or
cause to be sent (and the Rights Agent will, if requested and provided with
all
necessary information, 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 provided herein. As of and after the
Distribution Date, the Rights will be evidenced solely by such Right
Certificates. The Company shall promptly notify the Rights Agent of
the occurrence of the Distribution Date. Until such notice is
received by the Rights Agent, the Rights Agent may presume conclusively for
all
purposes that the Distribution Date has not occurred.
(e) In
the
event that the Company purchases or otherwise acquires any Common Shares after
the Record Date but prior to the Distribution Date, any Rights associated with
such Common Shares will be deemed canceled and retired so that the Company
will
not be entitled to exercise any Rights associated with the Common Shares so
purchased or acquired.
4. Form
of Right Certificates. The Right Certificates (and the form of
election to purchase and the form of assignment to be printed on the reverse
thereof) will be substantially in the form attached as Exhibit B
with such changes and marks of identification or designation, and
6
such
legends, summaries or endorsements printed thereon, as the Company may deem
appropriate (but which do not affect the rights, duties or responsibilities
of
the Rights Agent) 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 quotation 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, the Right Certificates, whenever issued, on their face will
entitle the holders thereof to purchase such number of one one-hundredths of
a
Preferred Share as are 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 will be subject
to
adjustment as provided herein.
5. Countersignature
and Registration. (a) The Right Certificates will be
executed on behalf of the Company by its Chairman of the Board, its President
or
any Vice President, either manually or by facsimile signature, and will have
affixed thereto the Company’s seal or a facsimile thereof which will be attested
by the Secretary or an Assistant Secretary of the Company, either manually
or by
facsimile signature. The Right Certificates will be countersigned by
the Rights Agent, either manually or by facsimile signature, and will not be
valid for any purpose unless so countersigned. In case any officer of
the Company who signed any of the Right Certificates ceases 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, is a proper officer
of
the Company to sign such Right Certificate, although at the date of the
execution of this Agreement any such person was not such officer.
(b) Following
the Distribution Date and receipt by the Rights Agent of notice to that effect,
the Rights Agent will keep or cause to be kept, at the its office 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 quotation 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 will
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.
6. Transfer,
Split Up, Combination and Exchange of Right Certificates; Mutilated, Destroyed,
Lost or Stolen Right Certificates. (a) Subject to the provisions
of Sections 7(d) and 14, 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 one one-hundredths
of a Preferred Share (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.
7
Any
registered holder desiring to transfer, split up, combine or exchange any such
Right Certificate or Right Certificates must make such request in a writing
delivered to the Rights Agent and must surrender the Right Certificate or Right
Certificates to be transferred, split up, combined or exchanged at the 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, the Company will prepare, execute and deliver to the Rights Agent,
and
the Rights Agent will countersign and deliver, a Right Certificate or Right
Certificates, as the case may be, as so requested. The Company or the
Rights Agent 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. The Rights Agent
shall have no duty or obligation to transfer, split up, combine or exchange
any
Right Certificates under this Section unless and until it is satisfied that
all
such taxes and/or governmental charges relating thereto have been paid.
(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
satisfactory to them, and, if requested by the Company, reimbursement to the
Company and the Rights Agent of all reasonable expenses incidental thereto,
and
upon surrender to the Rights Agent and cancellation of the Right Certificate
if
mutilated, the Company will prepare, execute and deliver a new Right Certificate
of like tenor to the Rights Agent and the Rights Agent will countersign and
deliver such new Right Certificate to the registered holder in lieu of the
Right
Certificate so lost, stolen, destroyed or mutilated.
7. Exercise
of Rights; Purchase Price; Expiration Date of Rights. (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 exercise 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(d).
(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 will promptly (i) requisition from any transfer agent of the
Preferred Shares (or make available, if the Rights Agent is the transfer agent)
certificates representing the number of one one-hundredths of a Preferred Share
to be purchased or, in the case of uncertificated shares or other securities,
requisition from any transfer agent therefor a notice setting forth such number
of shares or other securities to be purchased for which registration will be
made on the stock transfer books of the Company (and the Company hereby
irrevocably authorizes and directs its transfer agent to comply with all such
requests), or, if the Company elects to deposit Preferred Shares issuable upon
exercise of the Rights hereunder with a depositary agent, requisition from
8
the
depositary agent depositary receipts representing such number of one
one-hundredths of a Preferred Share as are to be purchased (and the Company
hereby irrevocably authorizes and directs such depositary agent to comply with
all such requests), (ii) after receipt of such certificates (or notices or
depositary receipts, as the case may be), 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 (or, in the case of uncertificated shares, a notice
of the number of equivalent common shares for which registration will be made
on
the stock transfer books of the Company) to be issued in lieu of the issuance
of
Common Shares in accordance with the provisions of Section 11(a)(iii), (iv)
when
appropriate, after receipt of such certificates or notices, 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
to
be paid in lieu of the issuance of fractional shares in accordance with the
provisions of Section 14 or in lieu of the issuance of Common Shares in
accordance with the provisions of Section 11(a)(iii), (vi) when appropriate,
after receipt, deliver such cash 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).
(c) In
case
the registered holder of any Right Certificate exercises less than all the
Rights evidenced thereby, the Company will prepare, execute and deliver a new
Right Certificate evidencing Rights equivalent to the Rights remaining
unexercised and the Rights Agent will 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.
(d) Notwithstanding
anything in this Agreement to the contrary, neither the Rights Agent nor the
Company will 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 or exercise of a Right Certificate as set forth in this
Section 7 unless the registered holder of such Right Certificate has (i)
completed and signed the certificate following the form of assignment or the
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 may reasonably request.
8. Cancellation
and Destruction of Right Certificates. All Right Certificates
surrendered for the purpose of exercise, transfer, split up, combination or
exchange will, if surrendered to the Company or to any of its stock transfer
agents, be delivered to the Rights Agent for cancellation or in canceled form,
or, if surrendered to the Rights Agent, will be canceled by it, and no Right
Certificates will be issued in lieu thereof except as expressly permitted by
the
provisions of this Agreement. The Company will deliver to the Rights
Agent for cancellation and retirement, and the Rights Agent will so cancel
and
retire, any other Right Certificate purchased or acquired by the Company
otherwise than upon the exercise thereof. The Rights Agent will
deliver all canceled Right Certificates to the Company, or will, at the written
9
request
of the Company, destroy such canceled Right Certificates, and in such case
will
deliver a certificate of destruction thereof to the Company.
9. Company
Covenants Concerning Securities and Rights. The Company covenants
and agrees that:
(a) It
will
cause to be reserved and kept available out of its authorized and unissued
Preferred Shares or any Preferred Shares held in its treasury, a number of
Preferred Shares that will be sufficient to permit the exercise in full of
all
outstanding Rights in accordance with Section 7.
(b) So
long
as the Preferred Shares (and, following the occurrence of a Triggering Event,
Common Shares and/or other securities) issuable upon the exercise of the Rights
may be listed on a national securities exchange or quoted on a quotation system,
it will 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 listed on such exchange or quoted on such system, upon official notice of
issuance upon such exercise.
(c) It
will
take all such action as may be necessary to ensure that all Preferred Shares
(and, following the occurrence of a Triggering Event, Common Shares and/or
other
securities) delivered (or evidenced by registration on the stock transfer books
of the Company) upon exercise of Rights, at the time of delivery of the
certificates for (or registration of) such securities, will be (subject to
payment of the Purchase Price) duly authorized, validly issued, fully paid
and
nonassessable securities.
(d) It
will
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 (or, if such securities are uncertificated, the registration
of such securities on the stock transfer books of the Company); provided,
however, that the Company will 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
or depositary receipts representing (or the registration of) 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, depositary receipts or notices representing
securities issued upon the exercise of any Rights until any such tax or charge
has 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.
(e) It
will
use its best efforts (i) to file on an appropriate form, as soon as practicable
following the later of the Share Acquisition Date and the Distribution Date,
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 will also take such action as
may be appropriate under, or to ensure compliance with,
10
the
applicable state securities or “blue sky” laws 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(e), 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 will 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 determines 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 will 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 will not be exercisable in any jurisdiction if the requisite
registration or qualification in such jurisdiction has not been effected or
the
exercise of the Rights is not permitted under applicable law. The
Company will notify the Rights Agent and provide a copy of any public
announcement it makes pursuant to this Section 9(e).
(f) Notwithstanding
anything in this Agreement to the contrary, after the later of the Share
Acquisition Date and the Distribution Date the Company will not 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.
(g) In
the
event that the Company is obligated to issue other securities of the Company
and/or pay cash pursuant to Section 11, 13, 14 or 24, it will make all
arrangements necessary so that such other securities and/or cash are available
for distribution by the Rights Agent, if and when appropriate under the terms
of
this Agreement.
10. Record
Date. Each Person in whose name any certificate representing
Preferred Shares (or Common Shares and/or other securities, as the case may
be)
is issued (or in which such securities are registered upon the stock transfer
books of the Company) upon the exercise of Rights will for all purposes be
deemed to have become the holder of record of the Preferred Shares (or Common
Shares and/or other securities, as the case may be) represented thereby on,
and
such certificate (or registration) will 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 transfer books of the Company for the Preferred Shares (or Common
Shares and/or other securities, as the case may be) are closed, such Person
will
be deemed to have become the record holder of such securities on, and such
certificate (or registration) will be dated, the next succeeding Business Day
on
which the transfer books of the Company for the Preferred Shares (or Common
Shares and/or other securities, as the case may be) are open. Prior
to the exercise of the Rights evidenced thereby, the holder of a Right
Certificate will not be entitled to any rights of a holder of any security
for
which the Rights are or may become exercisable, including, without limitation,
the right to vote, to receive dividends
11
or
other
distributions, or to exercise any preemptive rights, and will not be entitled
to
receive any notice of any proceedings of the Company, except as provided
herein.
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 at any time after the Record Date (A) declares a
dividend on the Preferred Shares payable in Preferred Shares,
(B) subdivides the outstanding Preferred Shares, (C) combines the
outstanding Preferred Shares into a smaller number of Preferred Shares, or
(D) issues any shares of its capital stock in a reclassification of the
Preferred Shares (including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing or surviving
corporation), except as otherwise provided in this Section 11(a), the Purchase
Price in effect at the time of the record date for such dividend or of the
effective date of such subdivision, combination or reclassification and/or
the
number and/or kind of shares of capital stock issuable on such date upon
exercise of a Right, will be proportionately adjusted so that the holder of
any
Right exercised after such time is 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 transfer books of the Company for the Preferred Shares were
open, the holder of such Right would have owned upon such exercise (and, in
the
case of a reclassification, would have retained after giving effect to such
reclassification) and would have been entitled to receive by virtue of such
dividend, subdivision, combination or reclassification; provided,
however, that in no event shall the consideration to be paid upon
the
exercise of one Right be less than the aggregate par value of the shares of
capital stock issuable upon exercise of one Right. If an event occurs
which would require an adjustment under both this Section 11(a)(i) and Section
11(a)(ii) or Section 13, the adjustment provided for in this Section
11(a)(i) will be in addition to, and will be made prior to, any adjustment
required pursuant to Section 11(a)(ii) or Section 13.
(ii) Subject
to the provisions of Section 24, if:
(A) any
Person becomes an Acquiring Person; or
(B) any
Acquiring Person or any Affiliate or Associate of any Acquiring Person, directly
or indirectly, (1) merges into the Company or otherwise combines with the
Company and the Company is the continuing or surviving corporation of such
merger or combination (other than in a transaction subject to Section 13),
(2)
merges or otherwise combines with any Subsidiary of the Company, (3) in one
or
more transactions (otherwise than in connection with the exercise, exchange
or
conversion of securities exercisable or exchangeable for or convertible into
shares of any class of capital stock of the Company or any of its Subsidiaries)
transfers cash, securities or any other property to the Company or any of its
Subsidiaries in exchange (in whole or in part) for shares of any class of
capital stock of the Company or any of its
12
Subsidiaries
or for securities exercisable or exchangeable for or convertible into shares
of
any class of capital stock of the Company or any of its Subsidiaries, or
otherwise obtains from the Company or any of its Subsidiaries, with or without
consideration, any additional shares of any class of capital stock of the
Company or any of its Subsidiaries or securities exercisable or exchangeable
for
or convertible into shares of any class of capital stock of the Company or
any
of its Subsidiaries (otherwise than as part of a pro rata distribution to all
holders of shares of any class of capital stock of the Company, or any of its
Subsidiaries), (4) sells, purchases, leases, exchanges, mortgages, pledges,
transfers or otherwise disposes (in one or more transactions) to, from, with
or
of, as the case may be, the Company or any of its Subsidiaries (otherwise than
in a transaction subject to Section 13), any property, including
securities, on terms and conditions less favorable to the Company than the
Company would be able to obtain in an arm’s-length transaction with an
unaffiliated third party, (5) receives any compensation from the Company or
any
of its Subsidiaries other than compensation as a director or a regular full-time
employee, in either case at rates consistent with the Company’s (or its
Subsidiaries’) past practices, or (6) receives the benefit, directly or
indirectly (except proportionately as a stockholder), of any loans, advances,
guarantees, pledges or other financial assistance or any tax credits or other
tax advantage provided by the Company or any of its Subsidiaries;
or
(C) during
such time as there is an Acquiring Person, there is any reclassification of
securities of the Company (including any reverse stock split), or any
recapitalization of the Company, or any merger or consolidation of the Company
with any of its Subsidiaries, or any other transaction or series of transactions
involving the Company or any of its Subsidiaries (whether or not with or into
or
otherwise involving an Acquiring Person), other than a transaction subject
to
Section 13, which has the effect, directly or indirectly, of increasing by
more
than 1% the proportionate share of the outstanding shares of any class of equity
securities of the Company or any of its Subsidiaries, or of securities
exercisable or exchangeable for or convertible into equity securities of the
Company or any of its Subsidiaries, of which an Acquiring Person, or any
Affiliate or Associate of any Acquiring Person, is the Beneficial
Owner;
then,
and
in each such case, from and after the latest of the Distribution Date, the
Share
Acquisition Date and the date of the occurrence of such Flip-in Event, proper
provision will be made so that each holder of a Right, except as provided below,
will thereafter have the 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 one
one-hundredths of a Preferred Share for which a Right was exercisable
immediately prior to the date of the occurrence of such Flip-in Event (or,
if
any other Flip-in Event shall have previously occurred, the product of the
then-current Purchase Price multiplied by the number of one one-hundredths
of a
Preferred Share for which a Right was exercisable immediately prior to the
date
of the first occurrence of a Flip-in Event), in lieu of Preferred Shares, such
number of Common Shares as equals the result obtained by (x) multiplying
the then-current Purchase Price by the number of one one-hundredths of a
Preferred Share for which a Right was exercisable immediately prior to the
date
of the occurrence of such Flip-in Event (or, if any other Flip-in Event shall
have previously occurred, multiplying the then-current Purchase Price by the
number of one one-hundredths of a Preferred Share for which a Right was
exercisable
13
immediately
prior to the date of the first occurrence of a Flip-in 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)) on the date of the occurrence of such
Flip-in Event. Notwithstanding anything in this Agreement to the
contrary, from and after the first occurrence of a Flip-in Event, any Rights
that are Beneficially Owned by (A) any Acquiring Person (or any Affiliate
or Associate of any Acquiring Person), (B) a transferee of any Acquiring
Person (or any such Affiliate or Associate) who becomes a transferee after
the
occurrence of a Flip-in Event, or (C) a transferee of any Acquiring Person
(or
any such Affiliate or Associate) who became a transferee prior to or
concurrently with the occurrence of a Flip-in Event pursuant to either (1)
a
transfer from an Acquiring Person to holders of its equity securities or to
any
Person with whom it has any continuing agreement, arrangement or understanding
regarding the transferred Rights or (2) a transfer which the Directors of the
Company have determined is part of a plan, arrangement or understanding which
has the purpose or effect of avoiding the provisions of this Section 11(a)(ii),
and subsequent transferees of any of such Persons, will be void without any
further action and any holder of such Rights will thereafter have no rights
whatsoever with respect to such Rights under any provision of this
Agreement. The Company will use all reasonable efforts to ensure that
the provisions of this Section 11(a)(ii) are complied with, but will have no
liability to any holder of Right Certificates or any other Person as a result
of
its failure to make any determinations with respect to an Acquiring Person
or
its Affiliates, Associates or transferees hereunder. Upon the
occurrence of a Flip-in Event, no Right Certificate that represents Rights
that
are or have become void pursuant to the provisions of this Section 11(a)(ii)
will thereafter be issued pursuant to Section 3 or Section 6, and any Right
Certificate delivered to the Rights Agent that represents Rights that are or
have become void pursuant to the provisions of this Section 11(a)(ii) will
be
canceled. Upon the occurrence of a Flip-over Event, any Rights that
shall not have been previously exercised pursuant to this Section 11(a)(ii)
shall thereafter be exercisable only pursuant to Section 13 and not pursuant
to
this Section 11(a)(ii). Promptly upon the Company becoming aware of
the identify of any such Acquiring Person, Associate or Affiliate or the nominee
of any of the foregoing, the Company shall give the Rights Agent notice of
the
identity of any such Acquiring Person, Associate or Affiliate, or the nominee
of
any of the foregoing, and the Rights Agent may rely on such notice in carrying
out its duties under this Agreement and shall not be deemed to have any
knowledge of the identity of any such Acquiring Person, Associate or Affiliate,
or the nominee of any of the foregoing unless and until it shall have received
such notice or until such Acquiring Person, Associate or Affiliate, or the
nominee of any of the foregoing, has certified their status as such in writing
to the Rights Agent.
(iii) Upon
the
occurrence of a Flip-in Event, if there are not sufficient Common Shares
authorized but unissued or issued but not outstanding to permit the issuance
of
all the Common Shares issuable in accordance with Section 11(a)(ii) upon the
exercise of a Right, the Board of Directors of the Company will use its best
efforts promptly to authorize and, subject to the provisions of Section 9(e),
make available for issuance additional Common Shares or other equity securities
of the Company having equivalent voting rights
14
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, the registered holder will 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 has determined in good faith to have a value equivalent to the excess
of
(x) the aggregate current per share market value on the date of the occurrence
of the most recent Flip-in Event of all the Common Shares issuable in accordance
with Section 11(a)(ii) upon the exercise of a Right (the “Exercise
Value”) over (y) the aggregate current per share market value on
the date of the occurrence of the most recent Flip-in Event 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 latest
of the Share Acquisition Date, the Distribution Date and the date of the
occurrence of the most recent Flip-in Event, there are not sufficient Common
Shares and/or equivalent common shares available for issuance upon the exercise
of a Right, then the Company will be obligated to deliver, upon the surrender
of
such Right and without requiring payment of the Purchase Price, Common Shares
(to the extent available), equivalent common shares (to the extent available)
and then 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
Share Acquisition Date), which securities and cash have an aggregate value
equal
to the excess of (1) the Exercise Value over (2) the product of the then-current
Purchase Price multiplied by the number of one one-hundredths of a Preferred
Share for which a Right was exercisable immediately prior to the date of the
occurrence of the most recent Flip-in Event (or, if any other Flip-in Event
shall have previously occurred, the product of the then-current Purchase Price
multiplied by the number of one one-hundredths of a Preferred Share for which
a
Right would have been exercisable immediately prior to the date of the
occurrence of such Flip-in Event if no other Flip-in Event had previously
occurred). To the extent that any legal or contractual restrictions
prevent the Company from paying the full amount of cash payable in accordance
with the foregoing sentence, the Company will pay to holders of the Rights
as to
which such payments are being made all amounts which are not then restricted
on
a pro rata basis and will continue to make payments on a pro rata basis as
promptly as funds become available until the full amount due to each such Rights
holder has been paid.
(b) In
the
event that the Company fixes a record date for the issuance of rights, options
or warrants to all holders of Preferred Shares entitling them (for a period
expiring within 45 calendar days after such record date) to subscribe for or
purchase Preferred Shares (or securities having equivalent rights, privileges
and preferences as the Preferred Shares (for purposes of this Section 11(b),
“equivalent preferred shares”)) or securities
convertible into Preferred Shares or equivalent preferred shares at a price
per
Preferred Share or equivalent preferred share (or having a conversion price
per
share, if a security convertible into Preferred Shares or equivalent preferred
shares) less than the current per share market price of the Preferred Shares
(determined pursuant to Section 11(d)) on such record date, the Purchase Price
to be in effect after such record date will be determined by multiplying the
Purchase Price in effect immediately prior to such record date by a fraction,
the numerator of which is the number of Preferred Shares outstanding on such
record date plus the number of Preferred Shares which
15
the
aggregate offering price of the total number of Preferred Shares and/or
equivalent preferred 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 is the
number of Preferred Shares outstanding on such record date plus the number
of
additional Preferred Shares and/or equivalent preferred shares to be offered
for
subscription or purchase (or into which the convertible securities so to be
offered are initially convertible); provided, however, that in no
event shall the consideration to be paid upon the exercise of one Right be
less
than the aggregate par value of the shares of capital stock issuable upon
exercise of one Right. In case such subscription price may be paid in
a consideration part or all of which is in a form other than cash, the value
of
such consideration will be as determined in good faith by the Board of Directors
of the Company, whose determination will be described in a statement filed
with
the Rights Agent. Preferred Shares owned by or held for the account
of the Company will not be deemed outstanding for the purpose of any such
computation. Such adjustment will 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 will 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 fixes a record date for the making of a distribution
to
all holders of Preferred Shares (including any such distribution made in
connection with a consolidation or merger in which the Company is the continuing
or surviving corporation) of evidences of indebtedness, cash (other than a
regular periodic cash dividend), assets, stock (other than a dividend payable
in
Preferred Shares) or subscription rights, options or warrants (excluding those
referred to in Section 11(b)), the Purchase Price to be in effect after such
record date will be determined by multiplying the Purchase Price in effect
immediately prior to such record date by a fraction, the numerator of which
is
the current per share market price of the Preferred Shares (as determined
pursuant to Section 11(d)) on such record date or, if earlier, the date on
which
Preferred 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 will 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 Preferred Share, and the
denominator of which is such current per share market price of the Preferred
Shares; provided, however, that in no event shall the
consideration to be paid upon the exercise of one Right be less than the
aggregate par value of the shares of capital stock issuable upon exercise of
one
Right. Such adjustments will be made successively whenever such a
record date is fixed; and in the event that such distribution is not so made,
the Purchase Price will again be adjusted to be the Purchase Price which would
then be in effect if such record date had not been fixed.
(d) (i) For
the purpose of any computation hereunder, the “current per share
market price” of Common Shares on any date will 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 but not including 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 (A) 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 (B) any
16
subdivision,
combination or reclassification of such Common Shares, and prior to but not
including 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 will 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 will 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 quotation 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 quotation 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 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 such
market 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 are not the subject
of available bid and asked quotes, “current per share market price” will mean
the fair value per share as determined in good faith by the Board of Directors
of the Company, whose determination will be described in a statement filed
with
the Rights Agent.
(ii) For
the
purpose of any computation hereunder, the “current per share market
price” of the Preferred Shares will be determined in the same
manner as set forth above for Common Shares in Section 11(d)(i), other than
the
last sentence thereof. If the current per share market price of the
Preferred Shares cannot be determined in the manner provided above, the “current
per share market price” of the Preferred Shares will be conclusively deemed to
be an amount equal to the current per share market price of the Common Shares
multiplied by one hundred (as such number may be appropriately adjusted to
reflect events such as stock splits, stock dividends, recapitalizations or
similar transactions relating to the Common Shares occurring after the date
of
this Agreement). If neither the Common Shares nor the Preferred
Shares are publicly held or so listed or traded, or the subject of available
bid
and asked quotes, “current per share market price” of the Preferred Shares will
mean the fair value per share as determined in good faith by the Board of
Directors of the Company, whose determination will be described in a statement
filed with the Rights Agent. For all purposes of this Agreement, the
current per share market price of one one-hundredth of a Preferred Share will
be
equal to the current per share market price of one Preferred Share divided
by
one hundred.
(e) Except
as
set forth below, no adjustment in the Purchase Price will 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 will be carried forward and
taken
into account in any subsequent adjustment. All calculations under
this Section 11 will be made to the nearest cent or to the nearest one
one-
17
millionth
of a Preferred Share or 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 will 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), the holder of any Right
thereafter exercised becomes entitled to receive any securities of the Company
other than Preferred Shares, thereafter the number and/or kind of such other
securities so receivable upon exercise of any Right (and/or the Purchase Price
in respect thereof) will be subject to adjustment from time to time in a manner
and on terms as nearly equivalent as practicable to the provisions with respect
to the Preferred Shares (and the Purchase Price in respect thereof) contained
in
this Section 11, and the provisions of Sections 7, 9, 10, 13 and 14 with
respect to the Preferred Shares (and the Purchase Price in respect thereof)
will
apply on like terms to any such other securities (and the Purchase Price in
respect thereof).
(g) All
Rights originally issued by the Company subsequent to any adjustment made to
the
Purchase Price hereunder will evidence the right to purchase, at the adjusted
Purchase Price, the number of one one-hundredths of a Preferred Share issuable
from time to time hereunder upon exercise of the Rights, all subject to further
adjustment as provided herein.
(h) Unless
the Company has exercised its election as provided in Section 11(i), upon each
adjustment of the Purchase Price pursuant to Section 11(b) or Section 11(c),
each Right outstanding immediately prior to the making of such adjustment will
thereafter evidence the right to purchase, at the adjusted Purchase Price,
that
number of one one-hundredths of a Preferred Share (calculated to the nearest
one
one-millionth of a Preferred Share) obtained by (i) multiplying (x) the
number of one one-hundredths of a Preferred Share issuable upon exercise of
a
Right immediately prior to such adjustment of the Purchase Price by (y) the
Purchase Price in effect immediately prior to such adjustment of the Purchase
Price and (ii) dividing the product so obtained by the Purchase Price in effect
immediately after such adjustment of the Purchase Price.
(i) The
Company may elect, on or after the date of any adjustment of the Purchase Price,
to adjust the number of Rights in substitution for any adjustment in the number
of one one-hundredths of a Preferred Share issuable upon the exercise of a
Right. Each of the Rights outstanding after such adjustment of the
number of Rights will be exercisable for the number of one one-hundredths of
a
Preferred Share for which a Right was exercisable immediately prior to such
adjustment. Each Right held of record prior to such adjustment of the
number of Rights will become that number of Rights (calculated to the nearest
one ten-thousandth) obtained by dividing the Purchase Price in effect
immediately prior to adjustment of the Purchase Price by the Purchase Price
in
effect immediately after adjustment of the Purchase Price. The
Company will make a public announcement (with prompt notice thereof to the
Rights Agent) 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. Such 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, will 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 will, as promptly as practicable, cause to be distributed to holders
of
18
record
of
Right Certificates on such record date Right Certificates evidencing, subject
to
the provisions of Section 14, the additional Rights to which such holders are
entitled as a result of such adjustment, or, at the option of the Company,
will
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 are entitled after
such adjustment. Right Certificates so to be distributed will 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 will be
registered in the names of the holders of record of Right Certificates on the
record date specified in the public announcement.
(j) Without
respect to any adjustment or change in the Purchase Price and/or the number
and/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 Certificate issued hereunder.
(k) Before
taking any action that would cause an adjustment reducing the Purchase Price
below one one-hundredth of the then par value, if any, of the Preferred Shares
or below the then par value, if any, of any other securities of the Company
issuable upon exercise of the Rights, the Company will take any corporate action
which may, in the opinion of its counsel, be necessary in order that the Company
may validly and legally issue fully paid and nonassessable Preferred Shares
or
such other securities, as the case may be, at such adjusted Purchase
Price.
(l) In
any
case in which this Section 11 otherwise requires 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 (with prompt notice thereof to the Rights Agent)
until the occurrence of such event the issuance to the holder of any Right
exercised after such record date the number of Preferred Shares or other
securities of the Company, if any, issuable upon such exercise over and above
the number of Preferred 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 delivers
to such holder a due ▇▇▇▇ or other appropriate instrument evidencing such
holder’s right to receive such additional Preferred Shares or other securities
upon the occurrence of the event requiring such adjustment.
(m) Notwithstanding
anything in this Agreement to the contrary, the Company will 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 determines to be advisable
in order that any (i) consolidation or subdivision of the Preferred Shares,
(ii)
issuance wholly for cash of Preferred Shares at less than the current per share
market price therefor, (iii) issuance wholly for cash of Preferred Shares or
securities which by their terms are convertible into or exchangeable for
Preferred 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 Preferred Shares is not taxable to such
stockholders.
(n) Notwithstanding
anything in this Agreement to the contrary, in the event that the Company at
any
time after the Record Date prior to the Distribution Date (i) pays a dividend
on
19
the
outstanding Common Shares payable in Common Shares, (ii) subdivides the
outstanding Common Shares, (iii) combines the outstanding Common Shares into
a
smaller number of shares, or (iv) issues any shares of its capital stock in
a
reclassification of the outstanding Common Shares (including any such
reclassification in connection with a consolidation or merger in which the
Company is the continuing or surviving corporation), the number of Rights
associated with each Common Share then outstanding, or issued or delivered
thereafter but prior to the Distribution Date, will be proportionately adjusted
so that the number of Rights thereafter associated with each Common Share
following any such event equals the result obtained by multiplying the number
of
Rights associated with each Common Share immediately prior to such event by
a
fraction the numerator of which is the total number of Common Shares outstanding
immediately prior to the occurrence of the event and the denominator of which
is
the total number of Common Shares outstanding immediately following the
occurrence of such event. The adjustments provided for in this
Section 11(n) will be made successively whenever such a dividend is paid or
such
a subdivision, combination or reclassification is effected.
12. Certificate
of Adjusted Purchase Price or Number of Securities. Whenever an
adjustment is made as provided in Section 11 or Section 13, the Company will
promptly (a) prepare a certificate setting forth such adjustment or
describing such event and a brief statement of the facts, computations and
methodology accounting for such adjustment, (b) file with the Rights Agent
and
with each transfer agent for the Preferred Shares and the Common Shares a copy
of such certificate, and (c) 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 26. The Rights Agent shall be
fully protected in relying on any such certificate and on any adjustment therein
contained and will have no duty or liability with respect to, and shall not
be
deemed to have knowledge of, any adjustment unless and until it shall have
received such a certificate.
13. Consolidation,
Merger or Sale or Transfer of Assets or Earning Power. (a) In the
event that:
(i) at
any
time after a Person has become an Acquiring Person, the Company consolidates
with, or merges with or into, any other Person and the Company is not the
continuing or surviving corporation of such consolidation or merger;
or
(ii) at
any
time after a Person has become an Acquiring Person, any Person consolidates
with
the Company, or merges with or into the Company, and the Company is 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
is changed into or exchanged for stock or other securities of any other Person
or cash or any other property; or
(iii) at
any
time after a Person has become an Acquiring Person, the Company, directly or
indirectly, sells or otherwise transfers (or one or more of its Subsidiaries
sells or otherwise transfers), 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 other than the Company
or one or more of its wholly owned Subsidiaries;
20
then,
and
in each such case, proper provision will be made so that from and after the
latest of the Share Acquisition Date, the Distribution Date and the date of
the
occurrence of such Flip-over Event (A) each holder of a Right thereafter has
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 one one-hundredths
of a
Preferred Share for which a Right was exercisable immediately prior to the
Share
Acquisition Date, such number of duly authorized, validly 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 equals the result obtained by
(x) multiplying the then-current Purchase Price by the number of one
one-hundredths of a Preferred Share for which a Right is exercisable immediately
prior to the Share Acquisition Date 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)), on the date of the occurrence of such Flip-over
Event; (B) the Issuer will thereafter be liable for, and will assume, by virtue
of the occurrence of such Flip-over Event, all the obligations and duties of
the
Company pursuant to this Agreement; (C) the term
“Company” will thereafter be deemed to refer to the
Issuer; and (D) the Issuer will 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 are thereafter 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” means (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”
means 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” means 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 legal
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
legal entity having outstanding equity securities, then all references to Common
Shares of the Issuer will be deemed to be references to the Common Shares of
the
corporation or other legal entity having outstanding equity securities which
ultimately controls
21
the
Issuer, and (y) if there is no such corporation or other legal entity having
outstanding equity securities, (I) proper provision will be made so that the
Issuer creates or otherwise makes 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 legal entity having
outstanding equity securities; and (II) all other provisions of this Agreement
will apply to the issuer of such securities as if such securities were Common
Shares.
(c) The
Company will not consummate any Flip-over Event if, (i) at the time of or
immediately after such Flip-over Event, there are or would be any rights,
warrants, instruments or securities outstanding or any agreements or
arrangements in effect which would eliminate or substantially diminish the
benefits intended to be afforded by the Rights, (ii) prior to, simultaneously
with or immediately after such Flip-over Event, the stockholders of the Person
who constitutes, or would constitute, the Issuer for purposes of Section 13(a)
shall have received a distribution of Rights previously owned by such Person
or
any of its Affiliates or Associates, or (iii) the form or nature of the
organization of the Issuer would preclude or limit the exercisability of the
Rights. In addition, the Company will not consummate any Flip-over
Event unless the Issuer has 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 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 will:
(A) 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 use its best efforts to cause such registration statement to (1)
become effective as soon as practicable after such filing and (2) remain
effective (with a prospectus at all times meeting the requirements of the
Securities Act) until the Expiration Date;
(B) take
all
such action as may be appropriate under, or to ensure compliance with, the
applicable state securities or “blue sky” laws in connection with the
exercisability of the Rights; and
(C) 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 will 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,
except for Rights that have become void pursuant to Section 11(a)(ii), Rights
that shall not have been previously exercised will cease to be exercisable
in
the manner provided in Section 11(a)(ii) and will thereafter be exercisable
in the manner provided in Section 13(a).
22
14. Fractional
Rights and Fractional Securities. (a) The Company will 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 will 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 one Right. For the purposes of this Section 14(a), the
current market value of one Right is 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 is
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 quotation 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 quotation system with respect to securities listed
on
the principal national securities exchange on which the Rights are listed or
admitted to trading or, if the Rights are not listed or admitted to trading
on
any national securities exchange, the last quoted price or, if not so quoted,
the average of the high bid and low asked prices in the over-the-counter market,
as reported by such market 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 the Rights are
not publicly held or are not so listed or traded, or are not the subject of
available bid and asked quotes, the current market value of one Right will
mean
the fair value thereof as determined in good faith by the Board of Directors
of
the Company, whose determination will be described in a statement filed with
the
Rights Agent.
(b) The
Company will not be required to issue fractions of Preferred Shares (other
than
fractions which are integral multiples of one one-hundredth of a Preferred
Share) upon exercise of the Rights or to distribute certificates which evidence
fractional Preferred Shares or to register fractional Preferred Shares on the
stock transfer books of the Company (other than fractions which are integral
multiples of one one-hundredth of a Preferred Share). Fractions of
Preferred Shares in integral multiples of one one-hundredth of a Preferred
Share
may, at the election of the Company, be evidenced by depositary receipts
pursuant to an appropriate agreement between the Company and a depositary
selected by it, provided that such agreement provides that the holders of such
depositary receipts have all the rights, privileges and preferences to which
they are entitled as beneficial owners of the Preferred Shares represented
by
such depositary receipts. In lieu of fractional Preferred Shares that
are not integral multiples of one one-hundredth of a Preferred Share, the
Company may pay to any Person to whom or which such fractional Preferred Shares
would otherwise be issuable an amount in cash equal to the same fraction of
the
current market value of one Preferred Share. For purposes of this
Section 14(b), the current market value of one Preferred Share is the closing
price of the Preferred Shares (as determined in the same manner as set forth
for
Common Shares in the second sentence of Section 11(d)(i)) for the Trading Day
immediately prior to the date of such exercise; provided, however,
that if the closing price of the Preferred Shares cannot be so determined,
the
closing price of the Preferred Shares for such Trading Day will be conclusively
deemed to be an amount equal to the closing price of the Common Shares
(determined pursuant to the second sentence of Section 11(d)(i)) for such
Trading Day multiplied by one hundred (as such number may be appropriately
adjusted to reflect events such as stock splits, stock dividends,
recapitalizations or
23
similar
transactions relating to the Common Shares occurring after the date of this
Agreement); providedfurther, however, that if neither the
Common Shares nor the Preferred Shares 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 Preferred Share will mean
the
fair value thereof as determined in good faith by the Board of Directors of
the
Company, whose determination will be described in a statement filed with the
Rights Agent.
(c) Following
the occurrence of a Triggering Event, the Company will 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 or to register any such fractional securities on the
stock
transfer books of the Company. 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(c), the current market value of one Common Share
or
other security issuable upon the exercise or exchange of Rights is the closing
price thereof (as determined in the same manner as set forth for Common Shares
in the second sentence of Section 11(d)(i)) 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 will mean the fair value thereof as
determined in good faith by the Board of Directors of the Company, whose
determination will mean the fair value thereof as will be described in a
statement filed with the Rights Agent.
(d) Whenever
a payment for fractional Rights or fractional shares is to be made by the Rights
Agent, the Company will (i) promptly prepare and deliver to the Rights Agent
a
certificate setting forth in reasonable detail the facts related to such
payments and the prices and/or formulas utilized in calculating such payments,
and (ii) provide sufficient funds to the Rights Agent to make such
payments. The Rights Agent shall be fully protected in relying upon
such a certificate and will have no duty with respect to, and will not be deemed
to have knowledge of any payment for fractional Rights or fractional shares
under any Section of this Agreement relating to the payment of fractional Rights
or fractional shares unless and until the Rights Agent shall have received
such
certificate and sufficient funds.
15. Rights
of Action. All rights of action in respect of this Agreement,
excepting the rights of action given to the Rights Agent under this Agreement,
are vested in the respective registered holders of the Right Certificates (and,
prior to the Distribution Date, the registered holders of the Common Shares);
and any registered holder of any Right Certificate (or, prior to the
Distribution Date, of the Common Shares), without the consent of the Rights
Agent or of the holder of any other Right Certificate (or, prior to the
Distribution Date, of the 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 in the
manner provided in such Right Certificate and in this
Agreement. Without limiting the foregoing or any remedies available
to the holders of Rights, it is specifically acknowledged that the holders
of
Rights would not have an adequate remedy at law for any breach of this Agreement
and will be
24
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.
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 are 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 office of the Rights Agent
designated for such purpose, duly endorsed or accompanied by a proper instrument
of transfer, and with the appropriate forms and certificates fully completed
and
executed;
(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) 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, if any, made by anyone
other than the Company or the Rights Agent) for all purposes whatsoever, and
neither the Company nor the Rights Agent will 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.
(e) Notwithstanding
anything in this Agreement to the contrary, neither the Company nor the Rights
Agent will 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 will use its best efforts to
have any such order, decree or ruling lifted or otherwise overturned as soon
as
possible.
17. Right
Certificate Holder Not Deemed a Stockholder. No holder, as such,
of any Right Certificate will be entitled to vote, receive dividends, or be
deemed for any purpose the holder of Preferred Shares or any other securities
of
the Company which may at any time be issuable upon the exercise of the Rights
represented thereby, nor will 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 25), or to receive dividends or subscription rights, or
otherwise, until the Right or Rights evidenced by such Right Certificate shall
have been exercised in accordance with the provisions of this Agreement or
exchanged pursuant to the provisions of Section 24.
25
18. Concerning
the Rights Agent. (a) The Company will 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 preparation, delivery, amendment,
administration and execution of this Agreement and the exercise and performance
of its duties hereunder. The Company will also indemnify the Rights
Agent for, and hold it harmless against, any loss, liability, damage, judgment,
fine, penalty, claim, demand, settlement, cost or expense (including, without
limitation, the reasonable fees and expenses of legal counsel), incurred without
gross negligence, bad faith, or willful misconduct on the part of the Rights
Agent (which gross negligence, bad faith or willful misconduct must be
determined by a final, non-appealable order, judgment, decree or ruling of
a
court of competent jurisdiction), for anything done, suffered or omitted to
be
done by the Rights Agent in connection with the acceptance, administration,
exercise and performance of its duties under this Agreement, including the
costs
and expenses of defending against any claim of liability arising therefrom,
directly or indirectly. The costs and expenses incurred in enforcing
this right of indemnification will be paid by the Company. The
provisions of this Section 18 and Section 20 below shall survive the termination
of this Agreement, the exercise or expiration of the Rights and the resignation,
replacement or removal of the Rights Agent.
(b) The
Rights Agent will be authorized and protected and will incur no liability for,
or in respect of any action taken, suffered, or omitted by it in connection
with
its acceptance and administration of this Agreement and the exercise and
performance of its duties hereunder, in reliance upon any Right Certificate
or
certificate or other notice evidencing Preferred Shares or 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, or otherwise upon the advice or opinion of counsel
as set forth in Section 20.
19. Merger
or Consolidation or Change of Name of Rights Agent. (a) Any
Person into which the Rights Agent or any successor Rights Agent may be merged
or with which it may be consolidated, or any Person resulting from any merger
or
consolidation to which the Rights Agent or any successor Rights Agent is a
party, or any Person succeeding to the business of the Rights Agent or any
successor Rights Agent, will be the successor to the Rights Agent under this
Agreement without the execution or filing of any paper or any further act on
the
part of any of the parties hereto, provided that such Person would be eligible
for appointment as a successor Rights Agent under the provisions of Section
21. If at the time such successor Rights Agent succeeds to the agency
created by this Agreement any of the Right Certificates shall have been
countersigned but not delivered, any such successor Rights Agent may adopt
the
countersignature of the predecessor Rights Agent and deliver such Right
Certificates so countersigned; and if at that time any of the Right Certificates
shall not have been countersigned, any successor Rights Agent may countersign
such Right Certificates either in the name of the predecessor Rights Agent
or in
the name of the successor Rights Agent; and in all such cases such Right
Certificates will have the full force provided in the Right Certificates and
in
this Agreement.
26
(b) If
at any
time the name of the Rights Agent changes and at such time any of the Right
Certificates have been countersigned but not delivered, the Rights Agent may
adopt the countersignature under its prior name and deliver Right Certificates
so countersigned; and if at that time any of the Right Certificates have not
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 will have the full force provided in the Right Certificates
and in this Agreement.
20. Duties
of Rights Agent. The Rights Agent undertakes to perform only the
duties and obligations expressly imposed by this Agreement (and no implied
duties) only upon the following terms and conditions, by all of which the
Company and the holders of Right Certificates, by their acceptance thereof,
will
be bound:
(a) The
Rights Agent may consult with legal counsel (who may be legal counsel for the
Company or an employee of the Rights Agent), and the advice or opinion of such
counsel will be full and complete authorization and protection to the Rights
Agent and the Rights Agent shall incur no liability for or in respect of any
action taken, suffered or omitted by it and in accordance with such advice
or
opinion.
(b) Whenever
in the performance of its duties under this Agreement the Rights Agent deems
it
necessary or desirable that any fact or matter (including, without limitation,
the identity of any Acquiring Person and the determination of the current per
share market price of any security) be proved or established by the Company
prior to taking, suffering or omitting to take 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,
any
Vice President, the Secretary or the Treasurer of the Company and delivered
to
the Rights Agent, and such certificate will be full authorization to the Rights
Agent for any action taken, suffered or omitted by it under the provisions
of
this Agreement in reliance upon such certificate.
(c) The
Rights Agent will be liable hereunder only for its own gross negligence, bad
faith or willful misconduct (which gross negligence, bad faith or willful
misconduct must be determined by a final, non-appealable order, judgment, decree
or ruling of a court of competent jurisdiction). Anything to the
contrary notwithstanding, in no event will the Rights Agent be liable for
special, punitive, indirect, consequential or incidental 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. Any
liability of the Rights Agent under this agreement will be limited to the amount
of annual fees paid by the Company to the Rights Agent.
(d) The
Rights Agent will not be liable for or by reason of any of the statements of
fact or recitals contained in this Agreement or in the Right Certificates
(except its countersignature thereof) or be required to verify the same, but
all
such statements and recitals are and will be deemed to have been made by the
Company only.
27
(e) The
Rights Agent will not have any liability for or 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 will it be responsible for any breach by the
Company of any covenant or condition contained in this Agreement or in any
Right
Certificate; nor will it be responsible any change in the exercisability of
the
Rights for any adjustment required under the provisions of Sections 11 or 13
(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 after receipt of the certificate described in
Section 12 upon which the Rights Agent may rely); nor will 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 duly authorized,
validly issued, fully paid and nonassessable.
(f) The
Company will perform, execute, acknowledge and deliver or cause to be performed,
executed, acknowledged and delivered all such further and other acts,
instruments and assurances as may reasonably be required by the Rights Agent
for
the carrying out or performing by the Rights Agent of the provisions of this
Agreement.
(g) The
Rights Agent is hereby authorized and directed to accept instructions with
respect to the performance of its duties hereunder from any one of the Chairman
of the Board, the President, any Vice President, the Secretary or the Treasurer
of the Company, and to apply to such officers for advice or instructions in
connection with its duties, and such instructions shall be full authorization
and protection to the Rights Agent and the Rights Agent will not be liable
for
any action taken, suffered or omitted by it in accordance with instructions
of
any such officer or for any delay in acting while waiting for those
instructions. The Rights Agent shall be fully authorized and
protected in relying upon the most recent instructions received by any such
officer.
(h) The
Rights Agent and any stockholder, affiliate, 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 the Rights Agent were not Rights
Agent under this Agreement. Nothing herein will preclude the Rights
Agent or any such stockholder, affiliate, director, officer or employee from
acting in any other capacity for the Company or for any other
Person.
(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 (through its directors,
officers and employees) or by or through its attorneys or agents, and the Rights
Agent will not be answerable or accountable for any act, default, neglect or
misconduct of any such attorneys or agents or for any loss to the Company or
any
other Person resulting from any such act, default, neglect or misconduct, absent
gross negligence, bad faith or willful misconduct in the selection and continued
employment thereof (which gross negligence, bad faith or willful misconduct
must
be
28
determined
by a final, non-appealable order, judgment, decree or ruling of a court of
competent jurisdiction). The Rights Agent will not be under any duty
or responsibility to ensure 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, either (i) 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, or (ii) any other actual or suspected
irregularity exists, the Rights Agent will not take any further action with
respect to such requested exercise, transfer, split up, combination or exchange
without first consulting with the Company, and will thereafter take further
action with respect thereto only in accordance with the Company’s written
instructions.
(k) No
provision of this Agreement will require the Rights Agent to expend or risk
its
own funds or otherwise incur any financial liability in the performance of
any
of its duties hereunder or in the exercise of its rights if it believes that
repayment of such funds or adequate indemnification against such risk or
liability is not reasonably assured to it.
21. Change
of Rights Agent. Except as otherwise provided by Section 31, 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 Preferred Shares or the Common
Shares known to the Rights Agent 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 Preferred Shares and the Common
Shares by registered or certified mail, and to the holders of the Right
Certificates by first class mail. If the Rights Agent resigns or is
removed or otherwise becomes incapable of acting, the Company will appoint
a
successor to the Rights Agent. If the Company fails to make such
appointment within a period of 30 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 will, 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, will be a Person organized and doing business under
the laws of the United States or of any state of the United States so long
as
such Person is authorized to exercise stock transfer powers and is subject
to
supervision or examination by federal or state authority and which has at the
time of its appointment as Rights Agent a combined capital and surplus of at
least $50 million. After appointment, the successor Rights Agent will
be vested with the same powers, rights, duties and responsibilities as if it
had
been originally named as Rights Agent without further act or deed; but the
predecessor Rights Agent will deliver and transfer to the successor Rights
Agent
any property at the time held by it hereunder, and execute and deliver any
further assurance, conveyance, act or deed necessary for the
purpose. Not later than the effective date of any such appointment,
the Company will file notice thereof in writing with the predecessor Rights
Agent and each transfer agent of
29
the
Preferred Shares or 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, will
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.
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 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) will, with respect to Common Shares so issued
or sold pursuant to the exercise, exchange or conversion of securities (other
than Rights) issued prior to the Distribution Date which are exercisable or
exchangeable 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 will be issued if, and
to the
extent that, in its good faith judgment the Board of Directors of the Company
determines 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
will be issued if, and to the extent that, appropriate adjustment otherwise
has
been made in lieu of the issuance thereof.
23. Redemption. (a)
Prior to the Expiration Date, the Board of Directors of the Company may, at
its
option, redeem all but not less than all of the then-outstanding Rights at
the
Redemption Price at any time prior to the Close of Business on the later of
(i)
the Distribution Date and (ii) Share Acquisition Date. Any such
redemption will be effective immediately upon the action of the Board of
Directors of the Company ordering the same, unless such action of the Board
of
Directors of the Company expressly provides that such redemption will be
effective at a subsequent time or upon the occurrence or nonoccurrence of one
or
more specified events (in which case such redemption will be effective in
accordance with the provisions of such action of the Board of Directors of
the
Company).
(b) Immediately
upon the effectiveness of the redemption of the Rights as provided in Section
23(a), and without any further action and without any notice, the right to
exercise the Rights will terminate and the only right thereafter of the holders
of Rights will be to receive the Redemption Price, without interest
thereon. Promptly after the effectiveness of the redemption of the
Rights as provided in Section 23(a), the Company will publicly announce such
redemption (with prompt notice thereof to the Rights Agent) and, within 10
calendar days thereafter, will 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 will not
30
affect
the validity of the redemption of the Rights. Any notice that is
mailed in the manner herein provided will be deemed given, whether or not the
holder receives the notice. The notice of redemption mailed to the
holders of Rights will 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)) 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. The Company may, at its option,
combine the payment of the Redemption Price with any other payment being made
concurrently to holders of Common Shares and, to the extent that any such other
payment is discretionary, may reduce the amount thereof on account of the
concurrent payment of the Redemption Price. If legal or contractual
restrictions prevent the Company from paying the Redemption Price (in the form
of consideration deemed appropriate by the Board of Directors) at the time
of
redemption, the Company will pay the Redemption Price, without interest,
promptly after such time as the Company ceases to be so prevented from paying
the Redemption Price.
24. Exchange. (a)
The Board of Directors of the Company may, at its option, at any time after
the
later of the Share Acquisition Date and the Distribution Date, exchange all
or
part of the then-outstanding and exercisable Rights (which will not include
Rights that have become void pursuant to the provisions of Section 11(a)(ii))
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 Record Date (such exchange ratio being
hereinafter referred to as the “Exchange
Ratio”). Any such exchange will be effective
immediately upon the action of the Board of Directors of the Company ordering
the same, unless such action of the Board of Directors of the Company expressly
provides that such exchange will be effective at a subsequent time or upon
the
occurrence or nonoccurrence of one or more specified events (in which case
such
exchange will be effective in accordance with the provisions of such action
of
the Board of Directors of the Company). Notwithstanding the
foregoing, the Board of Directors of the Company will not be empowered to effect
such exchange at any time after any Person (other than the Company or any
Related Person), who or which, together with all Affiliates and Associates
of
such Person, becomes the Beneficial Owner of 50% or more of the then-outstanding
Common Shares.
(b) Immediately
upon the effectiveness of the exchange of any Rights as provided in Section
24(a), and without any further action and without any notice, the right to
exercise such Rights will terminate and the only right with respect to such
Rights thereafter of the holder of such Rights will 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 effectiveness of the
exchange of any Rights as provided in Section 24(a), the Company will publicly
announce such exchange (with prompt notice thereof to the Rights Agent) and,
within 10 calendar days thereafter, will give notice of 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 will not affect the validity
of
such exchange. Any notice that is mailed in the manner herein
provided will be deemed given, whether or not the holder receives the
notice. Each such notice of exchange will state the method by which
the
31
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 will 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)) held by each holder of Rights.
(c) In
any
exchange pursuant to this Section 24, 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)), (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, as determined in good faith by the Board of
Directors of the Company (whose determination will be described in a statement
filed with the Rights Agent), equal to the current market value of one Common
Share (determined pursuant to Section 11(d)) on the Trading Day immediately
preceding the date of the effectiveness of the exchange pursuant to this Section
24.
25. Notice
of Certain Events. (a) If, after the Distribution Date, the
Company proposes (i) to pay any dividend payable in stock of any class to the
holders of Preferred Shares or to make any other distribution to the holders
of
Preferred Shares (other than a regular periodic cash dividend), (ii) to offer
to
the holders of Preferred Shares rights, options or warrants to subscribe for
or
to purchase any additional Preferred Shares or shares of stock of any class
or
any other securities, rights or options, (iii) to effect any reclassification
of
its Preferred Shares (other than a reclassification involving only the
subdivision of outstanding Preferred 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
other than the Company or one or more of its wholly owned Subsidiaries, (v)
to
effect the liquidation, dissolution or winding up of the Company, or (vi) to
declare or pay any dividend on the Common Shares payable in Common Shares or
to
effect a subdivision, combination or reclassification of the Common Shares
then,
in each such case, the Company will give to the Rights Agent and each holder
of
a Right Certificate, to the extent feasible and in accordance with Section
26, a
notice of such proposed action, which specifies 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 and/or Preferred
Shares, if any such date is to be fixed, and such notice will 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 Preferred 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 and/or
Preferred Shares, whichever is the earlier.
(b) In
case
any Triggering Event occurs, then, in any such case, the Company will as soon
as
practicable thereafter give to the Rights Agent and each holder of a Right
Certificate, in accordance with Section 26, a notice of the occurrence of such
event, which specifies the event and the consequences of the event to holders
of
Rights.
32
(c) Notwithstanding
anything in this Agreement to the contrary, prior to the Distribution Date,
a
filing by the Company with the Securities and Exchange Commission shall
constitute sufficient notice to the holders of any Rights or of any Common
Shares for purposes of this Agreement.
26. Notices. (a)
Notices, notifications, requests 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 will be sufficiently given or made if made in writing and
sent
by first class mail, postage prepaid, addressed (until another address is filed
in writing with the Rights Agent) as follows:
Harsco
Corporation
▇.▇.
▇▇▇
▇▇▇▇
▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate
Secretary
(b) Subject
to the provisions of Section 21, any notice, notification, request,
certification 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
will
be sufficiently given or made if made in writing and sent by first-class mail,
postage prepaid, addressed (until another address is filed in writing with
the
Company) as follows:
Mellon
Investor Services LLC
Suite
2122, One Mellon
Center
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
Relationship Manager
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
With
a
copy to:
Mellon
Investor Services LLC
Newport
Office Center VII
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Legal
Department
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
(c) Notices,
notifications, requests 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 Common Shares) will
be
sufficiently given or made if made in writing and 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.
27. Supplements
and Amendments. Prior to the time at which the Rights cease to be
redeemable pursuant to Section 23, and subject to the penultimate sentence
of this Section 27, the Company may in its sole and absolute discretion, and
the
Rights Agent will if the Company
33
so
directs, supplement or amend any provision of this Agreement in any respect
without the approval of any holders of Rights or Common Shares. From
and after the time at which the Rights cease to be redeemable pursuant to
Section 23, and subject to the penultimate sentence of this Section 27, the
Company may, and the Rights Agent will if the Company so directs, supplement
or
amend this Agreement without the approval of any holders of Rights or Common
Shares 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; provided, however, that no such
supplement or amendment shall adversely affect the interests of the holders
of
Rights as such (other than an Acquiring Person or an Affiliate or Associate
of
an Acquiring Person), and no such supplement or amendment shall cause the Rights
again to become redeemable or cause this Agreement again to become
supplementable or amendable otherwise than in accordance with the provisions
of
this sentence. Without limiting the generality or effect of the
foregoing, this Agreement may be supplemented or amended to provide for such
voting powers for the Rights and such procedures for the exercise thereof,
if
any, as the Board of Directors of the Company may determine to be
appropriate. 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 27, the Rights Agent will execute
such
supplement or amendment. Notwithstanding anything in this Agreement
to the contrary, the Rights Agent may, but shall not be obligated to, enter
into
any supplement or amendment that affects the Rights Agent’s own rights, duties,
obligations or immunities under this
Agreement. Notwithstanding anything in this Agreement to
the contrary, no supplement or amendment may be made which decreases the stated
Redemption Price to an amount less than $0.001 per
Right. Notwithstanding anything in this Agreement to the contrary,
the limitations on the ability of the Board of Directors to amend this Agreement
set forth in this Section 27 shall not affect the power or ability of the Board
of Directors to take any other action that is consistent with its fiduciary
duties under Delaware law, including without limitation accelerating or
extending the Expiration Date or making any other amendment to this Agreement
that is permitted by this Section 27 or adopting a new stockholder rights plan
with such terms as the Board of Directors determines in its sole discretion
to
be appropriate.
28. Successors;
Certain Covenants. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Rights Agent will be
binding on and inure to the benefit of their respective successors and assigns
hereunder.
29. Benefits
of This Agreement. Nothing in this Agreement will be construed to
give to any Person other than the Company, the Rights Agent, and the registered
holders of the Right Certificates (and, prior to the Distribution Date, the
Common Shares) any legal or equitable right, remedy or claim under this
Agreement. This Agreement will be for the sole and exclusive benefit
of the Company, the Rights Agent, and the registered holders of the Right
Certificates (or prior to the Distribution Date, the Common
Shares).
30. Governing
Law. This Agreement, each Right and each Right Certificate issued
hereunder will be deemed to be a contract made under the internal substantive
laws of the State of Delaware and for all purposes will be governed by and
construed in accordance with the
34
internal
substantive laws of such State applicable to contracts to be made and performed
entirely within such State; provided, however, that all of the
provisions regarding the rights, duties, liabilities and obligations of the
Rights Agent shall be governed by and construed in accordance with the laws
of
the State of New York applicable to contracts made and to be performed entirely
within such State.
31. Severability. If
any term, provision, covenant or restriction of this Agreement is held by a
court of competent jurisdiction or other authority to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement will remain in full force and effect and will
in
no way be affected, impaired or invalidated; provided, however,
that nothing contained in this Section 31 will affect the ability of the Company
under the provisions of Section 27 to supplement or amend this Agreement to
replace such invalid, void or unenforceable term, provision, covenant or
restriction with a legal, valid and enforceable term, provision, covenant or
restriction; provided, further that if such excluded provision shall
affect the rights, duties, liabilities or obligations of the Rights Agent,
the
Rights Agent may resign and be discharged from its duties under this Agreement
upon two Business Days’ notice in writing mailed to the Company and to each
transfer agent of the Preferred Shares or the Common Shares known to the Rights
Agent by registered or certified mail, and to the holders of the Rights
Certificates by first class mail.
32. Descriptive
Headings, Etc. Descriptive headings of the several Sections of
this Agreement are inserted for convenience only and will not control or affect
the meaning or construction of any of the provisions hereof. Unless
otherwise expressly provided, references herein to Articles, Sections and
Exhibits are to Articles, Sections and Exhibits of or to this
Agreement.
33. Determinations
and Actions by the Board. For all purposes of this Agreement, any
calculation of the number of Common Shares outstanding at any particular time,
including for purposes of determining the particular percentage of such
outstanding Common Shares of which any Person is the Beneficial Owner, will
be
made in accordance with the last sentence of Rule 13d-3(d)(1)(i) of the General
Rules and Regulations under the Exchange Act. The Board of Directors
of the Company will have the exclusive power and authority to administer this
Agreement and to exercise all rights and powers specifically granted to the
Board of Directors of the Company or to the Company, or as may be necessary
or
advisable in the administration of this Agreement, including without limitation
the right and power to (i) interpret the provisions of this Agreement (including
without limitation Section 27, this Section 33 and other provisions hereof
relating to its powers or authority hereunder) and (ii) make all determinations
deemed necessary or advisable for the administration of this Agreement
(including without limitation any determination contemplated by Section 1(a)
or
any determination as to whether particular Rights shall have become
void). All such actions, calculations, interpretations and
determinations (including, for purposes of clause (y) below, any omission with
respect to any of the foregoing) which are done or made by the Board of
Directors of the Company in good faith will (x) be final, conclusive and binding
on the Company, the Rights Agent, the holders of the Rights and all other
parties and (y) not subject the Board of Directors of the Company to any
liability to any Person, including without limitation the Rights Agent and
the
holders of the Rights. For all purposes of this Agreement, the Rights
Agent may assume that the Company’s Board of Directors has acted
35
in
good
faith, and the Rights Agent will be fully protected and incur no liability
in
reliance thereon.
34. Effective
Time. Notwithstanding anything in this Agreement to the contrary,
this Agreement will not be effective until the Close of Business on
September 27, 2007.
35. Counterparts. This
Agreement may be executed in any number of counterparts and each of such
counterparts will for all purposes be deemed to be an original, and all such
counterparts will together constitute but one and the same
instrument.
36
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date and year first above written.
|
HARSCO
CORPORATION
By: ________________________________________
Name:
Title:
|
|
|
|
|
|
MELLON
INVESTOR SERVICES LLC, as Rights Agent
By: ________________________________________
Name:
Title:
|
37
EXHIBIT
A
AMENDED
CERTIFICATE OF DESIGNATION,
PREFERENCES
AND
RIGHTS
OF
SERIES A JUNIOR PARTICIPATING
CUMULATIVE
PREFERRED STOCK
(1.25
PAR
VALUE)
of
Harsco
Corporation
Pursuant
to Section 151 of the General Corporation Law
of
the
State of Delaware
We,
▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, Chairman of the Board, and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Secretary, of Harsco
Corporation, a corporation organized and existing under the General Corporation
Law of the State of Delaware, in accordance with the provisions of Section
103
thereof, DO HEREBY CERTIFY:
That
pursuant to the authority conferred upon the Board of Directors by the Restated
Certificate of Incorporation of the said Corporation, the said Board of
Directors on September 29, 1987, adopted a resolution creating a series of
400,000 shares of Cumulative Preferred Stock designated as Series A Junior
Participating Cumulative Preferred Stock with the preferences and rights as
provided in the Certificate of Designation adopted by the Board; and on June
24,
1997, the said Board of Directors adopted a resolution amending the Certificate
of Designation as follows:
RESOLVED,
that pursuant to the authority vested in the Board of Directors of this
Corporation in accordance with the provisions of its Restated Certificate of
Incorporation, the Certificate of Designation adopted by the Board of Directors
on September 29, 1987, is hereby amended effective September 28, 1997 as
follows:
SECTION
1. DESIGNATION
AND AMOUNT. The shares of such series shall be designated as “Series
A Junior Participating Cumulative Preferred Stock” and the number of shares
constituting such series shall be 750,000.
SECTION
2. DIVIDENDS
AND DISTRIBUTIONS.
(A) Subject
to the prior and superior rights of the holders of any shares of any series
of
Preferred Stock ranking prior and superior to the shares of Series A Junior
Participating Cumulative Preferred Stock with respect to dividends or
distributions, the holders of shares of Series A Junior Participating Cumulative
Preferred Stock shall be entitled to receive, when, as and if declared by the
Board of Directors out of funds legally available for the purpose, quarterly
dividends payable in cash on the fifteenth day of February, May, August and
November in each year (each such date being referred to herein as a “Quarterly
Dividend Payment Date”),
A–1
commencing
on the first Quarterly Dividend Payment Date after the first issuance of a
share
or fraction of a share of Series A Junior Participating Cumulative Preferred
Stock, in an amount per share (rounded to the nearest cent) equal to the greater
of (a) $5.00 or (b) subject to the provision for adjustment hereinafter set
forth, 100 times the aggregate per share amount of all cash dividends, and
100
times the aggregate per share amount (payable in kind) of all non-cash dividends
or other distributions other than a dividend payable in shares of Common Stock
or a subdivision of the outstanding shares of Common Stock (by reclassification
or otherwise), declared on the Common Stock, par value $1.25 per share, of
the
Corporation (the “Common Stock”) since the immediately preceding Quarterly
Dividend Payment Date, or, with respect to the first Quarterly Dividend Payment
Date, since the first issuance of any share or fraction of a share of Series
A
Junior Participating Cumulative Preferred Stock. In the event the Corporation
shall at any time after September 28,1997 (the “Rights Declaration Date”) (i)
declare any dividend on Common Stock payable in shares of Common Stock, (ii)
subdivide the outstanding Common Stock, or (iii) combine the outstanding Common
Stock into a small number of shares, then in each such case the amount to which
holders of shares of Series A Junior Participating Cumulative Preferred Stock
were entitled immediately prior to such event under clause (b) of the preceding
sentence shall be adjusted by multiplying such amount by a fraction the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such
event.
(B) The
corporation shall declare a dividend or distribution on the Series A Junior
Participating Cumulative Preferred Stock as provided in paragraph (A) above
immediately after it declares a dividend or distribution on the Common Stock
(other than a dividend payable in shares of Common Stock); provided that, in
the
event no dividend or distribution shall have been declared on the Common Stock
during the period between any Quarterly Dividend Payment Date and the next
subsequent Quarterly Dividend Payment Date, a dividend of $5.00 per share on
the
Series A Junior Participating Cumulative Preferred Stock shall nevertheless
be
payable on such subsequent Quarterly Dividend Payment Date.
(C) Dividends
shall begin to accrue and be cumulative on outstanding shares of Series A Junior
Participating cumulative Preferred Stock from the Quarterly Dividend Payment
Date next preceding the date of issue of such shares of Series A Junior
Participating Cumulative Preferred Stock, unless the date of issue of such
shares is prior to the record date for the first Quarterly Dividend Payment
Date, in which case dividends on such shares shall begin to accrue from the
date
of issue of such shares, or unless the date of issue is a Quarterly Dividend
Payment Date or is a date after the record date for determination of holders
of
shares of Series A Junior Participating Cumulative Preferred Stock entitled
to
receive a quarterly dividend and before such Quarterly Dividend Payment Date,
in
either of which events such dividends shall begin to accrue and be cumulative
from such Quarterly Dividend Payment Date. Accrued but unpaid
dividends shall not bear interest. Dividends paid on the shares of
Series A Junior Participating Cumulative Preferred Stock in an amount less
than
the total amount of such dividends at the time accrued and payable on such
shares shall be allocated pro rata on a share-by-share basis among all such
shares at the time outstanding. The Board of Directors may fix a
record date for the determination of holders of shares of Series A Junior
Participating Cumulative Preferred Stock
A–2
entitled
to receive payment of a dividend or distribution declared thereon, which record
date shall be no more than 45 days prior to the date fixed for the payment
thereof.
SECTION
3. VOTING
RIGHTS. In addition to the voting rights set forth in Article FOURTH
of the Restated Certificate of Incorporation or otherwise required by law,
the
holders of shares of Series A Junior Participating Cumulative Preferred Stock
shall have the following voting rights:
(A) Subject
to the provision for adjustment hereinafter set forth, each share of Series
A
Junior Participating Cumulative Preferred Stock shall entitle the holder thereof
to 100 votes on all matters submitted to a vote of the stockholders of the
Corporation. In the event the Corporation shall at any time after the
Rights Declaration Date (i) declare any dividend on Common Stock payable in
shares of Common Stock, (ii) subdivide the outstanding Common Stock, or (iii)
combine the outstanding Common Stock into a smaller number of shares, then
in
each such case the number of votes per share to which holders of shares of
Series A Junior Participating Cumulative Preferred Stock were entitled
immediately prior to such event shall be adjusted by multiplying such number
by
a fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to
such
event.
(B) Except
as
otherwise provided herein or by law, the holders of shares of Series A Junior
Participating Cumulative Preferred Stock and the holders of shares of Common
Stock shall vote together as one class on all matters submitted to a vote of
stockholders of the Corporation.
(C) (i) If
at any time dividends on any Series A Junior Participating Cumulative Preferred
Stock shall be in arrears in an amount equal to six (6) quarterly dividends
thereon, the occurrence of such contingency shall ▇▇▇▇ the beginning of a period
(herein called a “default period”) which shall extend until such time when all
accrued and unpaid dividends for all previous quarterly dividend periods and
for
the current quarterly dividend period on all shares of Series A Junior
Participating Cumulative Preferred Stock then outstanding shall have been
declared and paid or set apart for payment. During each default
period, all holders of Cumulative Preferred Stock (including holders of the
Series A Junior Participating Cumulative Preferred Stock) with dividends in
arrears in an amount equal to six (6) quarterly dividends thereon, voting as
a
class, irrespective of series, shall have the right to elect two (2)
Directors.
(ii) During
any default period, such voting right of the holders of Series A Junior
Participating Cumulative Preferred Stock may be exercised initially at a special
meeting called pursuant to subparagraph (iii) of this Section 3(C) or at any
annual meeting of stockholders, and thereafter at annual meetings of
Stockholders, provided that neither such voting right nor the right of the
holders of any other series of Cumulative Preferred Stock, if any, to increase,
in certain cases, the authorized number of Directors shall be exercised unless
the holders of ten percent (10%) in number of shares of Cumulative Preferred
Stock outstanding shall be present in person or by proxy. The absence of a
quorum of the holders of Common Stock shall not affect the exercise by the
holders of Cumulative Preferred Stock of such voting right. At any
meeting at which the
A–3
holders
of Cumulative Preferred Stock shall exercise such voting right initially during
an existing default period, they shall have the right, voting as a class, to
elect Directors to fill such vacancies, if any, in the Board of Directors as
may
then exist up to two (2) Directors or, if such right is exercised at an annual
meeting, to elect two (2) Directors. If the number which may be so
elected at any special meeting does not amount to the required number, the
holders of the Cumulative Preferred Stock shall have the right to make such
increase in the number of Directors as shall be necessary to permit the election
by them of the required number. After the holders of the Cumulative
Preferred Stock shall have exercised their right to elect Directors in any
default period and during the continuance of such period, the number of
Directors shall not be increased or decreased except by vote of the holders
of
Cumulative Preferred Stock as herein provided or pursuant to the rights of
any
equity securities ranking senior to or pari passu with the Series A Junior
Participating Cumulative Preferred Stock.
(iii) Unless
the holders of Cumulative Preferred Stock shall, during an existing default
period, have previously exercised their right to elect Directors, the Board
of
Directors may order, or any stockholder or stockholders owning in the aggregate
not less than ten percent (10%) of the total number of shares of Cumulative
Preferred Stock outstanding, irrespective of series, may request, the calling
of
a special meeting of the holders of Cumulative Preferred Stock, which meeting
shall thereupon be called by the President, a Vice-President or the Secretary
of
the Corporation. Notice of such meeting and of any annual meeting at
which holders of Cumulative Preferred Stock are entitled to vote pursuant to
this paragraph (C)(iii) shall be given to each holder of record of Cumulative
Preferred Stock by mailing a copy of such notice to him at his last address
as
the same appears on the books of the Corporation. Such meeting shall be called
for a time not earlier than 20 days and not later than 60 days after such order
or request or in default of the calling of such meeting within 60 days after
such order or request, such meeting may be called on similar notice by any
stockholder or stockholders owning in the aggregate not less than ten percent
(10%) of the total number of shares of Cumulative Preferred Stock
outstanding. Notwithstanding the provisions of this paragraph
(C)(iii), no such special meeting shall be called during the period within
60
days immediately preceding the date fixed for the next annual meeting of the
stockholders.
(iv) In
any
default period, the holders of Common Stock, and other classes of stock of
the
Corporation if applicable, shall continue to be entitled to elect the whole
number of Directors until the holders of Cumulative Preferred Stock shall have
exercised their right to elect two (2) Directors voting as a class, after the
exercise of which right (x) the Directors so elected by the holders of
Cumulative Preferred Stock shall continue in office until their successors
shall
have been elected by such holders or until the expiration of the default period,
and (y) any vacancy in the Board of Directors may (except as provided in
paragraph (C)(ii) of this Section (3) be filled by vote of a majority of the
remaining Directors theretofore elected by the holders of the class of stock
which elected the Director whose office shall have become vacant. References
in
this paragraph (C) to Directors elected by the holders of a particular class
of
stock shall include Directors elected by such Directors to fill vacancies as
provided in clause (y) of the foregoing sentence.
A–4
(v) Immediately
upon the expiration of a default period, (x) the right of the holders of
Cumulative Preferred Stock as a class to elect Directors shall cease, (y) the
term of any Directors elected by the holders of Cumulative Preferred Stock
as a
class shall terminate, and (z) the number of Directors shall be such number
as
may be provided for in the certificate of incorporation or by-laws irrespective
of any increase made pursuant to the provisions of paragraph (C)(ii) of this
Section 3 (such number being subject, however, to change thereafter in any
manner provided by law or in the certificate of incorporation or
by-laws). Any vacancies in the Board of Directors effected by the
provisions of clauses (y) and (z) in the preceding sentence may be filled by
a
majority of the remaining Directors.
(D) Except
as
set forth herein, holders of Series A Junior Participating Cumulative Preferred
Stock shall have no special voting rights and their consent shall not be
required (except to the extent they are entitled to vote with holders of Common
Stock as set forth herein) for taking any corporate action.
SECTION
4. REACQUIRED
SHARES. Any shares of Series A Junior Participating Cumulative
Preferred Stock purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and cancelled promptly after the acquisition
thereof. All such shares shall upon their cancellation become
authorized but unissued shares of Cumulative Preferred Stock and may be reissued
as part of a new series of Cumulative Preferred Stock to be created by
resolution or resolutions of the Board of Directors, subject to the conditions
and restrictions on issuance set forth herein.
SECTION
5. LIQUIDATION,
DISSOLUTION OR WINDING UP.
(A) Upon
any
voluntary liquidation, dissolution or winding up of the Corporation, no
distribution shall be made to the holders of shares of stock ranking (either
as
to dividends or upon liquidation, dissolution or winding up) junior to the
Series A Junior Participating Cumulative Preferred Stock unless, prior thereto,
the holders of shares of Series A Junior Participating Cumulative Preferred
Stock shall have received $150 per share, plus an amount equal to accrued and
unpaid dividends and distributions thereon, whether or not declared, to the
date
of such payment (the “Series A Liquidation Preference”). Following
the payment of the full amount of the Series A Liquidation Preference, no
additional distributions shall be made to the holders of shares of Series A
Junior Participating Cumulative Preferred Stock unless, prior thereto, the
holders of shares of Common Stock shall have received an amount per share (the
“Common Adjustment”) equal to the quotient obtained by dividing (i) the Series A
Liquidation Preference by (ii) 100 (as appropriately adjusted as set forth
in
subparagraph C below to reflect such events as stock splits, stock dividends
and
recapitalizations with respect to the Common Stock) (such number in clause
(ii),
the “Adjustment Number”). Following the payment of the full amount of
the Series A Liquidation Preference and the Common Adjustment in respect of
all
outstanding shares of Series A Junior Participating Cumulative Preferred Stock
and Common Stock, respectively, holders of Series A Junior Participating
Cumulative Preferred Stock and holders of shares of Common Stock shall receive
their ratable and proportionate share of the remaining assets to be distributed
in the ratio of the Adjustment Number to 1 with respect to such Cumulative
Preferred Stock and Common Stock, on a per share basis,
respectively.
A–5
(B) In
the
event, however, that there are not sufficient assets available to permit payment
in full of the Series A Liquidation Preference and the liquidation preferences
of all other series of Cumulative Preferred Stock, if any, which rank on a
parity with the Series A Junior Participating Cumulative Preferred Stock, then
such remaining assets shall be distributed ratably to the holders of such parity
shares in proportion to their respective liquidation preferences. In
the event, however, that there are not sufficient assets available to permit
payment in full of the Common Adjustment, then such remaining assets shall
be
distributed ratably to the holders of Common Stock.
(C) In
the
event the Corporation shall at any time after the Rights Declaration Date (i)
declare any dividend on Common Stock payable in shares of Common Stock, (ii)
subdivide the outstanding Common Stock, or (iii) combine the outstanding Common
Stock into a smaller number of shares, then in each such case the Adjustment
Number in effect immediately prior to such event shall be adjusted by
multiplying such Adjustment Number by a fraction the numerator of which is
the
number of shares of Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
SECTION
6. CONSOLIDATION,
MERGER, ETC. In case the Corporation shall enter into any
consolidation, merger, combination or other transaction in which the shares
of
Common Stock are exchanged for or changed into other stock or securities, cash
and/or any other property, then in any such case the shares of Series A Junior
Participating Cumulative Preferred Stock shall at the same time be similarly
exchanged or changed in an amount per share (subject to the provision for
adjustment hereinafter set forth) equal to 100 times the aggregate amount of
stock, securities, cash and/or any other property (payable in kind), as the
case
may be, into which or for which each share of Common Stock is changed or
exchanged. In the event the Corporation shall at any time after the
Rights Declaration Date (i) declare any dividend on Common Stock payable in
shares of Common Stock, (ii) subdivide the outstanding Common Stock, or (iii)
combine the outstanding Common Stock into a smaller number of shares, then
in
each such case the amount set forth in the preceding sentence with respect
to
the exchange or change of shares of Series A Junior Participating Cumulative
Preferred Stock shall be adjusted by multiplying such amount by a fraction
the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such
event.
SECTION
7. NO
REDEMPTION. The shares of Series A Junior Participating Cumulative
Preferred Stock shall not be redeemable.
SECTION
8. RANKING. The
Series A Junior Participating Cumulative Preferred Stock shall rank junior
to
all other series of the Corporation’s preferred stock as to the payment of
dividends and the distribution of assets.
SECTION
9. AMENDMENT. The
Restated Certificate of Incorporation of the Corporation shall not be further
amended in any manner which would materially alter or change the powers,
preferences or special rights of the Series A Junior Participating Cumulative
Preferred Stock so as to affect them adversely without the affirmative vote
of
the holders of a
A–6
majority
or more of the outstanding shares of Series A Junior Participating Cumulative
Preferred Stock, voting separately as a class.
SECTION
10. FRACTIONAL
SHARES. Series A Junior Participating Cumulative Preferred Stock may
be issued in fractions of a share which shall entitle the holder, in proportion
to such holder’s fractional shares, to exercise voting rights, receive
dividends, participate in distributions and to have the benefit of all other
rights of holders of Series A Junior Participating Cumulative Preferred
Stock.
IN
WITNESS WHEREOF, we have executed and subscribed this Certificate and do affirm
the foregoing as true under the penalties of perjury this ____ day of September,
1997.
_______________________________________
▇▇▇▇▇
▇.
▇▇▇▇▇▇▇▇
Chairman
of the Board
Attest:
_______________________________________
▇▇▇▇
▇.
▇▇▇▇▇▇▇
Secretary
A–7
EXHIBIT
B
FORM
OF
RIGHT CERTIFICATE
Certificate
No.
R-____________ __________
Rights
NOT
EXERCISABLE AFTER OCTOBER 9, 2017 OR EARLIER IF REDEEMED, EXCHANGED OR
AMENDED. THE RIGHTS ARE SUBJECT TO REDEMPTION, EXCHANGE AND AMENDMENT
AT THE OPTION OF THE COMPANY, ON THE TERMS SET FORTH IN THE RIGHTS
AGREEMENT. UNDER CERTAIN CIRCUMSTANCES SPECIFIED IN THE RIGHTS
AGREEMENT, RIGHTS THAT ARE OR WERE BENEFICIALLY OWNED BY AN ACQUIRING PERSON
OR
AN AFFILIATE OR AN ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED
IN THE RIGHTS AGREEMENT) OR A TRANSFEREE THEREOF MAY BECOME NULL AND
VOID.
Right
Certificate
HARSCO
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 Rights
Agreement, dated as of September 25, 2007 (the “Rights
Agreement”), between Harsco Corporation, a Delaware corporation
(the “Company”), and Mellon Investor Services LLC (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. (New York City time) on the Expiration Date
(as such term is defined in the Rights Agreement) at the office of the Rights
Agent designated for such purpose, one one-hundredth of a fully paid
nonassessable share of Series A Junior Participating Cumulative Preferred
Stock, par value $1.25 per share (the “Preferred
Shares”), of the Company, at a purchase price of $230.00 per one
one-hundredth of a Preferred Share (the “Purchase
Price”), upon presentation and surrender of this Right Certificate
with the Form of Election to Purchase and related Certificate duly
executed. If this Right Certificate is exercised in part, the holder
will 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 one
one-hundredths of a Preferred Share 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 the date of the Rights Agreement, based on the
Preferred Shares as constituted at such date.
As
provided in the Rights Agreement, the Purchase Price and/or the number and/or
kind of securities issuable upon the exercise of the Rights evidenced by this
Right Certificate are subject to adjustment upon the occurrence 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
B–1
reference
and made a part hereof and to which Rights Agreement reference is hereby made
for a full description of the rights, limitations of rights, obligations, duties
and immunities 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 and can be obtained from the Company
without charge upon written request therefor. Terms used herein with
initial capital letters and not defined herein are used herein with the meanings
ascribed thereto in the Rights Agreement.
Pursuant
to the Rights Agreement, from and after the occurrence of a Flip-in Event,
any
Rights that are Beneficially Owned by (i) any Acquiring Person (or any Affiliate
or Associate of any Acquiring Person), (ii) a transferee of any Acquiring
Person (or any such Affiliate or Associate) who becomes a transferee after
the
occurrence of a Flip-in Event, or (iii) a transferee of any Acquiring Person
(or
any such Affiliate or Associate) who became a transferee prior to or
concurrently with the Flip-in Event pursuant to either (a) a transfer from
an
Acquiring Person to holders of its equity securities or to any Person with
whom
it has any continuing agreement, arrangement or understanding regarding the
transferred Rights or (b) a transfer which the Board of Directors of the Company
has determined is part of a plan, arrangement or understanding which has the
purpose or effect of avoiding certain provisions of the Rights Agreement, and
subsequent transferees of any of such Persons, will be void without any further
action and any holder of such Rights will thereafter have no rights whatsoever
with respect to such Rights under any provision of the Rights
Agreement. From and after the occurrence of a Flip-in Event, no Right
Certificate will be issued that represents Rights that are or have become void
pursuant to the provisions of the Rights Agreement, and any Right Certificate
delivered to the Rights Agent that represents Rights that are or have become
void pursuant to the provisions of the Rights Agreement will be
canceled.
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 one
one-hundredths of a Preferred Share (or other securities, as the case may be)
as
the Right Certificate or Right Certificates surrendered 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 $0.001 per Right or may be exchanged in whole or in part. The
Rights Agreement may be supplemented and amended by the Company, as provided
therein.
The
Company is not required to issue fractions of Preferred Shares (other than
fractions which are integral multiples of one one-hundredth of a Preferred
Share, which may, at the option of the Company, be evidenced by depositary
receipts) or other securities issuable upon the exercise of any Right or Rights
evidenced hereby. In lieu of issuing such fractional Preferred Shares
or other securities, the Company may make a cash payment, as provided in the
Rights Agreement.
B–2
No
holder
of this Right Certificate, as such, will be entitled to vote or receive
dividends or be deemed for any purpose the holder of the Preferred Shares or
of
any other securities of the Company which may at any time be issuable upon
the
exercise of the Right or Rights represented hereby, nor will 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 have been exercised in accordance with the provisions of the Rights
Agreement.
This
Right Certificate will not be valid or obligatory for any purpose until it
has
been countersigned by the Rights Agent.
WITNESS
the facsimile signature of the proper officers of the Company and its corporate
seal. Dated as of ________, ____.
|
ATTEST:
___________________________________
|
HARSCO
CORPORATION
By: ___________________________________
Name:
Title:
|
|
Countersigned:
MELLON
INVESTOR SERVICES LLC, as Rights Agent
By: ___________________________________
Authorized
Signature
|
B–3
Form
of
Reverse Side of Right Certificate
FORM
OF ASSIGNMENT
(To
be
executed by the registered holder if such
holder
desires to transfer the Right Certificate)
FOR
VALUE
RECEIVED, _______________ hereby sells, assigns and transfers unto
______________________________________________________________________________
(Please
print name and address of transferee)
______________________________________________________________________________
this Right Certificate, together with all right, title and interest therein,
and
does hereby irrevocably constitute and appoint _______________ Attorney, to
transfer the within Right Certificate on the books of the within-named Company,
with full power of substitution.
Dated: __________,
____
|
Signature
|
|
|
Signature
Guaranteed: _____________________________
|
|
B–4
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 or 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 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: __________,
____
|
Signature
|
Signature
Guaranteed:
B–5
FORM
OF ELECTION TO PURCHASE
(To
be
executed if holder desires to
exercise
the Right Certificate)
To
Harsco
Corporation:
The
undersigned hereby irrevocably elects to exercise __________ Rights represented
by this Right Certificate to purchase the one one-hundredths of a Preferred
Share or other securities issuable upon the exercise of such Rights and requests
that certificates for such securities be issued in the name of and delivered
to:
Please
insert social security or
other
identifying number:
(Please
print name and address)
If
such
number of Rights is not all the Rights evidenced by this Right Certificate,
a
new Right Certificate for the balance remaining of such Rights will be
registered in the name of and delivered to:
Please
insert social security or
other
identifying number:
(Please
print name and address)
Dated: __________,
____
|
Signature
|
|
|
Signature
Guaranteed: _____________________________
|
|
B–6
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: __________,
____
|
Signature
|
Signature
Guaranteed:
NOTICE
Signatures
on the foregoing Form of Assignment and Form of Election to Purchase and in
the
related Certificates must correspond to the name as written upon the face of
this Right Certificate in every particular, without alteration or enlargement
or
any change whatsoever.
In
the event the certification set forth above in the Form of Assignment or the
Form of Election to Purchase, as the case may be, is not completed, the Company
and the Rights Agent will deem the beneficial owners of the Rights evidenced
by
this Right Certificate to be an Acquiring Person or an Affiliate or Associate
thereof (as defined in the Rights Agreement) and such Assignment or Election
to
Purchase will not be honored.
Signatures
must be guaranteed by a participant in the Securities Transfer Agent Medallion
Program, the Stock Exchanges Medallion Program or the New York Stock Exchange,
Inc. Medallion Signature Program.
B–7
EXHIBIT
C
SUMMARY
OF RIGHTS TO PURCHASE PREFERRED STOCK
On
September 25, 2007, the Board of Directors of Harsco Corporation adopted a
rights plan and declared a dividend of one preferred share purchase right for
each outstanding share of Harsco Corporation’s Common Stock, par value $1.25 per
share. The dividend is payable on October 9, 2007 to our stockholders
of record on that date. The terms of the rights and the rights plan
are set forth in a Rights Agreement, dated as of September 25, 2007, by and
between Harsco Corporation and Mellon Investor Services LLC, as rights
agent.
Our
Board
adopted the rights plan to protect our stockholders from coercive takeover
practices or takeover bids that are inconsistent with their best
interests. In general terms, the rights plan imposes a significant
penalty upon any person or group that acquires 15% or more of our outstanding
common stock without the prior approval of our Board. A person or
group that acquires a percentage of our common stock in excess of that threshold
is called an “acquiring person.” Any rights held by an acquiring
person are void and may not be exercised.
This
summary of rights provides a general description of the rights
plan. Because it is only a summary, this description should be read
together with the entire rights plan, which we incorporate in this summary
by
reference. We have filed the rights plan with the Securities and
Exchange Commission as an exhibit to our registration statement on Form
8-A. Upon written request, we will provide a copy of the rights plan
free of charge to any stockholder.
The
Rights. Our Board of Directors authorized the issuance of one right per
each outstanding share of our common stock on
October 9, 2007. If the rights become exercisable, each right
would allow its holder to purchase from us one one-hundredth of a share of
our
Series A Junior Participating Cumulative Preferred Stock for a purchase price
of
$230.00. Each fractional share of preferred stock would give the
stockholder approximately the same dividend, voting and liquidation rights
as
does one share of our common stock. Prior to
exercise, however, a right does not give its holder any dividend, voting or
liquidation rights.
Exercisability. The
rights will not be exercisable until the earlier of:
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·
|
10
days after a public announcement by Harsco Corporation that a person
or
group has become an acquiring person;
and
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|
·
|
10
business days (or a later date determined by our Board) after a person
or
group begins a tender or exchange offer that, if completed, would
result
in that person or group becoming an acquiring
person.
|
We
refer
to the date that the rights become exercisable as the “distribution
date.” Until the distribution date,
our common stock certificates will also evidence the
rights and will contain a notation to that effect. Any transfer of
shares of common stock prior to the
distribution date will constitute a transfer of the associated
rights. After the distribution date, the rights will separate from
the common stock and be evidenced by right certificates, which we will mail
to
all holders of rights that have not become void.
C–1
Flip-in
Event. After the distribution date, if a person or
group already is or becomes an acquiring person, all holders of rights, except
the acquiring person, may exercise their rights upon payment of the purchase
price to purchase shares of our common stock (or other securities or assets
as
determined by the Board) with a market value of two times the purchase
price.
Flip-over
Event. After the distribution date, if a flip-in event
has already occurred and Harsco Corporation is acquired in a merger or similar
transaction, all holders of rights except the acquiring person may exercise
their rights upon payment of the purchase price, to purchase shares of the
acquiring corporation with a market value of two times the purchase price of
the
rights.
Rights
may be exercised to purchase our preferred shares only after the distribution
date occurs and prior to the occurrence of a flip-in event as described
above. A distribution date resulting from the commencement of a
tender offer or exchange offer described in the second bullet point above could
precede the occurrence of a flip-in event, in which case the rights could be
exercised to purchase our preferred shares. A distribution date
resulting from any occurrence described in the first bullet point above would
necessarily follow the occurrence of a flip-in event, in which case the rights
could be exercised to purchase shares of common stock or
other securities as described above.
Expiration. The
rights will expire on October 9, 2017 unless earlier redeemed or
exchanged.
Redemption. Our
Board may redeem all (but not less than all) of the rights for a redemption
price of $0.001 per right at any time before the later of the distribution
date
and the date of the first public announcement or
disclosure by Harsco Corporation that a person or group has become an acquiring
person. Once the rights are redeemed, the right to exercise rights
will terminate, and the only right of the holders of rights will be to receive
the redemption price. The redemption price will be adjusted if we
declare a stock split or issue a stock dividend on
our common stock.
Exchange. After
the later of the distribution date and the date of the first public announcement
by Harsco Corporation that a person or group has become an acquiring person,
but
before an acquiring person owns 50% or more of our outstanding common stock,
our
Board may exchange each right (other than rights that have become void) for
one
share of common stock or an equivalent security.
Anti-Dilution
Provisions. Our Board may adjust the purchase price of the
preferred shares, the number of preferred shares issuable and the number of
outstanding rights to prevent dilution that may occur as a result of certain
events, including among others, a stock dividend, a stock split or a
reclassification of the preferred shares or our common stock. No
adjustments to the purchase price of less than 1% will be made.
Amendments. Before
the time rights cease to be redeemable, our Board may amend or supplement the
rights plan without the consent of the holders of the rights, except that no
C–2
amendment
may decrease the redemption price below $0.001 per right. At any time
thereafter, our Board may amend or supplement the rights plan only to cure
an
ambiguity, to alter time period provisions, to correct inconsistent provisions
or to make any additional changes to the rights plan, but only to the extent
that those changes do not impair or adversely affect any rights holder and
do
not result in the rights again becoming redeemable. The limitations
on our Board’s ability to amend the rights plan does not affect our Board’s
power or ability to take any other action that is consistent with its fiduciary
duties, including without limitation accelerating or extending the expiration
date of the rights, making any amendment to the rights plan that is permitted
by
the rights plan or adopting a new rights plan with such terms as our Board
determines in its sole discretion to be appropriate.
* * *
C–3