HEALTH RISK MANAGEMENT, INC.
and
NORWEST BANK MINNESOTA, N.A.
as Rights Agent
Rights Agreement
Dated as of April 4, 1997
RIGHTS AGREEMENT
This Agreement, dated as of April 4, 1997, by and between HEALTH RISK
MANAGEMENT, INC., a Minnesota corporation ("the Company"), and NORWEST BANK
MINNESOTA, N.A. (the "Rights Agent"),
WITNESSETH:
WHEREAS, on April 4, 1997, the Board of Directors of the Company (the
"Board") authorized the issuance of, and declared a dividend payable in, one
right (a "Right") for each share of Common Stock, $.01, par value per share, of
the Company outstanding as of the close of business on April 18, 1997 (the
"Record Date"), each such Right representing the right to purchase one
one-hundredth (1/100) of a share of Series A Preferred Stock of the Company
("Preferred Stock") authorized by the Board of Directors of the Company (the
"Board") on April 4, 1997, upon the terms and subject to the conditions
hereinafter set forth; and
WHEREAS, the Board further authorized the issuance of one Right (subject to
adjustment) with respect to each share of Common Stock which may be issued
between the Record Date and the earlier to occur of the Expiration Date or the
Final Expiration Date (as such terms are hereinafter defined);
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein set forth, the parties hereby agree as follows:
Section 1. Certain Definitions. For purposes of this Agreement, the
following terms shall have the meanings indicated:
(a) "Acquiring Person" shall mean any Person (as such term is hereinafter
defined) who or which, together with all Affiliates and Associates (as such
terms are hereinafter defined) of such Person, shall be the Beneficial Owner (as
such term is hereinafter defined) of 15% or more of the shares of Voting Stock
(as such term is hereinafter defined) of the Company then outstanding; provided,
that, an Acquiring Person shall not include an (i) Exempt Person (as such term
is hereinafter defined), or (ii) any Person, together with all Affiliates and
Associates of such Person, who or which would be an Acquiring Person solely by
reason of (A) being the Beneficial Owner of shares of Voting Stock of the
Company, the Beneficial Ownership of which was acquired by such Person pursuant
to any action or transaction or series of related actions or transactions
approved by a majority of the Continuing Directors before such Person otherwise
became an Acquiring Person or (B) a reduction in the number of issued and
outstanding shares of Voting Stock of the Company pursuant to a transaction or a
series of related transactions approved by a majority of the Continuing
Directors, or (iii) any Person who or which, together with all Affiliates and
Associates of such Person, was (based upon such Person's Schedule 13D or
Schedule 13G filings under the Exchange Act) the Beneficial Owner of 15% or more
of the shares of Voting Stock of the Company as of the date this Rights
Agreement was first adopted by the Board where such Person's status as a more
than 15% Beneficial Owner of Voting Stock of the Company was expressly approved
by the Board at the time this Rights Agreement was first adopted by the Board;
provided, further, that, in the event that such Person described in clause (ii)
does not become an Acquiring Person by reason of subclause (A) or (B) of this
clause (ii), such Person nonetheless shall become an Acquiring Person in the
event such Person thereafter acquires Beneficial Ownership of an additional 1%
of the Voting Stock of the Company, unless the acquisition of such additional
Voting Stock would not result in such person becoming an Acquiring Person by
reason of subclause (A) or (B) of this clause (ii); provided, further, that such
Person described in clause (iii) shall nonetheless become an Acquiring Person in
the event such Person thereafter acquires Beneficial Ownership of an additional
1% of the Voting Stock of the Company unless such acquisition is pursuant to any
action or transaction or series of related actions or transactions approved by a
majority of the Continuing Directors. Notwithstanding the foregoing, if the
Board determines in good faith (but only if at the time of such determination by
the Board there are then in office not less than two Continuing Directors and
such action is approved by a majority of the Continuing Directors then in
office) that a Person who would otherwise be an "Acquiring Person" as defined
pursuant to the foregoing provisions of this paragraph (a) has become such
inadvertently, and such Person divests as promptly as practicable a sufficient
number of shares of Common Stock so that such Person would no longer be an
"Acquiring Person" as defined pursuant to the foregoing provisions of this
paragraph (a), then such Person shall not be deemed an "Acquiring Person" for
any purposes of this Rights Agreement.
(b) "Affiliate" and "Associate" shall have the meanings ascribed to such
terms in Rule 12b-2 of the General Rules and Regulations under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), as in effect on the date
of this Rights Agreement.
(c) A Person shall be deemed the "Beneficial Owner" of, to "Beneficially
Own," or to have "Beneficial Ownership" of, any securities:
(i) which such Person or any of such Person's Affiliates or
Associates beneficially owns, directly or indirectly, for
purposes of Section 13(d) of the Exchange Act and Regulations 13D
and 13G thereunder as in effect on the date of this Rights
Agreement; or
(ii) which such Person or any of such Person's Affiliates or
Associates has (A) the right to acquire (whether such right is
exercisable immediately or only after the passage of time or the
fulfillment of a condition or both) pursuant to any agreement,
arrangement or understanding (other than customary agreements
with and between underwriters and selling group members with
respect to a bona fide public offering of securities), or upon
the exercise of conversion rights, exchange rights, other rights
(other than these Rights), warrants or options, or otherwise;
provided, however, that a Person shall not be deemed the
Beneficial Owner of, or to Beneficially Own securities tendered
pursuant to a tender or exchange offer made by such Person or any
of such Person's Affiliates or Associates until such tendered
securities are accepted for purchase or exchange or (B) the right
to vote, alone or in concert with others, pursuant to any
agreement, arrangement or understanding (whether or not in
writing); provided, however, that a Person shall not be deemed
the Beneficial Owner of, or to Beneficially Own, any securities
if the agreement, arrangement or understanding to vote such
security (1) arises solely from a revocable proxy or consent
given in response to a public proxy or consent solicitation made
pursuant to, and in accordance with, the applicable rules and
regulations under the Exchange Act and (2) is not then reportable
by such Person on Schedule 13D under the Exchange Act (or any
comparable or successor report) as being beneficially owned by
such Person; or
(iii)which are Beneficially Owned, directly or indirectly, by any
other Person with which such Person or any of such Person's
Affiliates or Associates has any agreement, arrangement or
understanding (other than customary agreements with and between
underwriters and selling group members with respect to a bona
fide public offering of securities), whether or not in writing,
for the purpose of acquiring, holding, and voting (except as
described in clause (B) of subparagraph (ii) of this paragraph
(c)) or disposing of any securities of the Company; provided,
however, that for purposes of determining Beneficial Ownership of
securities under this Rights Agreement, officers and directors of
the Company, solely by reason of their status as such, shall not
constitute a group (notwithstanding that they may be Associates
of one another or may bc deemed to constitute a group for
purposes of Section 13(d) of the Exchange Act) and shall not be
deemed to own shares owned by another officer or director of the
Company.
Notwithstanding anything in this paragraph (c) to the contrary, the phrase
"then outstanding," when used with reference to a Person's Beneficial Ownership
of securities of the Company, shall mean the number of such securities then
issued and outstanding together with the number of such securities not then
actually issued and outstanding which such Person would be deemed to
Beneficially Own under this Rights Agreement. Further, notwithstanding anything
in this paragraph (c) to the contrary, a Person engaged in the business of
underwriting securities shall not be deemed be Beneficial Owner of, to
Beneficially Own, or to have Beneficial Ownership of, any securities acquired in
good faith in a firm commitment underwriting until the expiration of forty days
after the date of such acquisition.
(d) "Business Day" shall mean any day other than a Saturday, Sunday, or a
day on which banking institutions in the State of Minnesota are authorized or
obligated by law or executive order to close.
(e) "Close of Business" on any given date shall mean 5:00 P.M., Minneapolis
time, on such date; provided, however, that if such date is not a Business Day
it shall mean 5:00 P.M., Minneapolis time, on the next succeeding Business day.
(f) "Common Stock" when used with reference to the Company shall mean the
common stock, par value $.01 per share of the Company. "Common Stock" when used
with reference to any Person other than the Company which shall be organized in
corporate form shall mean the capital stock or other equity security with the
greatest per share voting power of such Person. "Common Stock" when used with
reference to any Person other than the Company which shall not be organized in
corporate form shall mean units of beneficial interest which shall represent the
right to participate in profits, losses, deductions and credits of such Person
and which shall be entitled to exercise the greatest voting power per unit of
such Person.
(g) "Continuing Director" shall mean any member of the Board, while such
person is a member of the Board, who is not an Acquiring Person, or an Affiliate
or Associate of an Acquiring Person, or a representative or nominee of an
Acquiring Person or of any such Affiliate or Associate, but only if such member
either (i) was a member of the Board when this Rights Agreement was first
adopted by the Board or (ii) subsequently became a member of the Board where
such subsequent member's nomination for election or election to the Board was
recommended or approved by a majority of the Continuing Directors then on the
Board.
(h) "Distribution Date" shall have the meaning set forth in Section 3(a)
hereof.
(i) "Exchange Act" shall have the meaning set forth in Section 1(b) hereof.
(j) "Exempt Person" shall mean (i) the Company, (ii) any Subsidiary of the
Company or (iii) any employee benefit plan or employee stock plan of the Company
or any Subsidiary of the Company, or any trust or other entity organized,
appointed, established or holding Common Stock for or pursuant to the terms of
any such plan.
(k) "Exercise Price" shall have the meaning set forth in Sections 4 and
7(b) hereof.
(l) "Expiration Date" shall have the meaning set forth in Section 7(a)
hereof.
(m) "Fair Market Value" of any security or other property shall mean the
fair market value of such property as determined in accordance with Section
11(d) hereof.
(n) "Final Expiration Date" shall have the meaning set forth in Section
7(a) hereof.
(o) "Person" shall mean any individual, firm, corporation or other entity,
and shall include any successor (by merger or otherwise) of such entity.
(p) "Principal Party" shall have the meaning set forth in Section 13(b)
hereof.
(q) "Preferred Stock" shall mean shares of Series A Preferred Stock, par
value $.01 per share, of the Company, having the rights and preferences set
forth in Exhibit A hereto.
(r) "Qualifying Tender Offer" shall mean a tender or exchange offer for all
outstanding shares of Common Stock of the Company approved by a majority of the
Board (provided that at the time of such approval of the Board there are then in
office not less than two Continuing Directors and such offer is approved by a
majority of the Continuing Directors then in office), after taking into account
the potential long-term value of the Company and all other factors that they
consider relevant.
(s) "Redemption Price" shall have the meaning set forth in Section 23(a)
hereof.
(t) "Right Certificate" shall have the meaning set forth in Section 3(d)
hereof.
(u) "Stock Acquisition Date" shall mean the first date on which there shall
be a public announcement by the Company or an Acquiring Person that an Acquiring
Person has become such (which, for purposes of this definition, shall include,
without limitation, a report filed pursuant to Section 13(d) of the Exchange
Act) or such earlier date as a majority of the Continuing Directors shall become
aware of the existence of an Acquiring Person.
(v) "Subsidiary" of a Person shall mean any corporation or other entity of
which securities or other ownership interests having voting power sufficient to
elect a majority of the board of directors or other persons performing similar
functions are Beneficially Owned, directly or indirectly, by such Person or by
any corporation or other entity that is otherwise controlled by such Person.
(w) "Summary of Rights" shall have the meaning set forth in Section 3(b)
hereof.
(x) "Trading Day" shall have the meaning set forth in Section 11(d) hereof.
(y) "Voting Stock" shall mean (i) the Common Stock of the Company and (ii)
any other shares of capital stock of the Company entitled to vote generally in
the election of directors or entitled to vote together with the Common Stock in
respect of any merger, consolidation, sale of all or substantially all of the
Company's assets, liquidation, dissolution or winding up.
Any determination required to be made by the Board for purposes of applying
the definitions contained in this Section 1 shall be made in good faith by a
majority of the Continuing Directors, or, if there are none, by the Board, which
determination shall be binding on the Rights Agent and the holders of the
Rights.
Section 2. Appointment of Rights Agent. The Company hereby appoints the
Rights Agent to act as agent for the Company and the holders of Rights (who in
accordance with Section 3 hereof, shall, prior to the Distribution Date, also be
the holders of Common Stock) in accordance with the terms and conditions hereof,
and the Rights Agent hereby accepts such appointment. The Company may from time
to time appoint such Co-Rights Agents as it may deem necessary or desirable.
Section 3. Issuance of Right Certificates.
(a) Until the earlier of (i) the tenth day after the Stock Acquisition Date
or (ii) the tenth Business Day (or such later date as may be determined by
action of the Board, but only if at the time of such determination there are
then in office not less than two Continuing Directors and such action is
approved by a majority of the Continuing Directors then in office, prior to such
time as any Person becomes an Acquiring Person) after the date of the
commencement by any Person (other than an Exempt Person) of, or the first public
announcement of the intent of any Person (other than an Exempt Person) to
commence, a tender or exchange offer upon the successful consummation of which
such Person, together with its Affiliates and Associates, would become the
Beneficial Owner of 15% or more of the then outstanding shares of Voting Stock
of the Company (irrespective of whether any shares are actually purchased
pursuant to any such offer) (the earlier of such dates being herein referred to
as the "Distribution Date"), (i) the Rights shall be evidenced by the
certificates for Common Stock registered in the name of the holders thereof
(together with, in the case of certificates for Common Stock outstanding as of
the Record Date, the Summary of Rights) and not by separate Right certificates
(and the record holders of such certificates for Common Stock shall be the
record holders of the Rights represented thereby), and (ii) the right to receive
Right Certificate shall be transferable only simultaneously and together with
the transfer of a share of Common Stock (subject to adjustment as hereinafter
provided). Until the Distribution Date (or, if earlier, the Expiration Date or
Final Expiration Date), the surrender for transfer of any certificate for Common
Stock shall constitute the surrender for transfer of the Right or Rights
associated with the Common Stock evidenced thereby, whether or not accompanied
by a copy of the Summary of Rights.
(b) On the Record Date, or as soon as practicable thereafter, the Company
shall send a copy of a Summary of Rights to Purchase Shares of Series A
Preferred Stock, in substantially the form of Exhibit B attached hereto (the
"Summary of Rights"), by first class mail, postage prepaid, to each record
holder of the Common Stock as of the close of business on the Record Date, at
the address of such holder shown on the records of the Company.
(c) Rights shall be issued in respect of all shares of Common Stock that
become outstanding after the Record Date but prior to the earlier of the
Distribution Date, the Expiration Date or the Final Expiration Date.
Certificates for Common Stock issued (including, without limitation,
certificates issued upon original issuance, transfer or exchange of Common
Stock) after the Record Date but prior to the earliest of the Distribution Date,
the Expiration Date, or the Final Expiration Date shall have impressed, printed,
written or stamped thereon or otherwise affixed thereto the following legend:
This certificate also evidences and entitles the holder hereof to the same
number of Rights (subject to adjustment) as the number of shares of Common Stock
represented by this certificate, such Rights being on the terms provided in the
Rights Agreement between HEALTH RISK MANAGEMENT, INC. and NORWEST BANK,
MINNESOTA, N.A., dated as of April 4, 1997, as it may be amended from time to
time (the "Rights Agreement"), the terms of which are incorporated herein by
reference and a copy of which is on file at the principal executive offices of
HEALTH RISK MANAGEMENT, INC. Under certain circumstances, as set forth in the
Rights Agreement, such Rights shall be evidenced by separate certificates and
shall no longer be evidenced by this certificate. HEALTH RISK MANAGEMENT, INC.
shall mail to the registered holder of this certificate a copy of the Rights
Agreement without charge after receipt of a written request therefor. Under
certain circumstances as provided in Section 7(e) of the Rights Agreement,
Rights issued to or Beneficially Owned by Acquiring Persons or their Affiliates
or Associates (as such terms are defined in the Rights Agreement) or any
subsequent holder of such Rights shall be null and void and may not be
transferred to any Person.
(d) As soon 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, send by first
class mail, postage prepaid, to each record holder of the Common Stock as of the
close of business on the Distribution Date, as shown by the records of the
Company, at the address of such holder shown on such records, a certificate in
the form provided by Section 4 hereof (a "Right Certificate"), evidencing one
Right (subject to adjustment as provided herein) for each share of Common Stock
so held. As of and after the Distribution Date, the Rights shall be evidenced
solely by Right Certificates and may be transferred by the transfer of the Right
Certificate as permitted hereby, separately and apart from any transfer of one
or more shares of Common Stock.
Section 4. Form of Right Certificates. The Right Certificates and the forms
of election to purchase and assignment to be printed on the reverse thereof,
shall be substantially in the form set forth in Exhibit C hereto and may have
such marks of identification or designation and such legends, summaries or
endorsements printed thereon as the Company may deem appropriate, or as may be
required to comply with any applicable law, rule, or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on which the Common
Stock or the Rights may from time to time be listed or conform to usage or
otherwise and as are not inconsistent with the provisions of this Rights
Agreement. Subject to the provisions of Section 22 hereof, the Right
Certificates evidencing Rights whenever issued, (i) shall be dated as of the
date of issuance of the Rights they represent; (ii) shall be subject to
adjustment from time to time as provided herein; and (iii) on their face shall
entitle the holders thereof to purchase such number of shares (including
fractional shares which are integral multiples of one one-hundredth of a share)
of Preferred Stock as shall be set forth therein at the price payable upon
exercise of a Right provided by Section 7(b) hereof as the same may from time to
time be adjusted as provided herein (the "Exercise Price").
Section 5. Countersignature and Registration.
(a) Each Right Certificate shall be executed on behalf of the Company by
its Chairman, Chief Executive Officer, President or any Vice President, either
manually or by facsimile signature, and attested by the Chief Financial Officer,
the Secretary or an Assistant Secretary of the Company, either manually or by
facsimile signature. Each Right Certificate shall be countersigned by the Rights
Agent either manually or by facsimile signature and shall not be valid for any
purpose unless so countersigned. If any officer of the Company who signed any
Right Certificate ceases to be such officer of the Company before
countersignature by the Rights Agent and issuance and delivery of the
certificate by the Company, such Right Certificate, nevertheless, may be
countersigned by the Rights Agent and issued and delivered 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. Any Right Certificate may be signed on
behalf of the Company by any person who, on the date of the execution of such
Right Certificate, shall be a proper officer of the Company to sign such Right
Certificate, although at the date of the execution of this Rights Agreement any
such person was not such an officer.
(b) Following the Distribution Date, the Rights Agent will keep or cause to
be kept, at an office designated for such purpose, books for registration and
transfer of the Right Certificates issued hereunder. Such books shall show the
names and addresses of the respective holders of the Right Certificates, the
number of Rights evidenced on its face by each of the Right Certificates and the
date of each of the Right Certificates.
Section 6. Transfer, Split Up, Combination and Exchange of Right
Certificates; Mutilated, Destroyed, Lost or Stolen Right Certificates.
(a) Subject to the provisions of Sections 7(e), 7(f) and 14 hereof, at any
time after the Close of Business on the Distribution Date, and at or prior to
the Close of Business on the earlier of the Expiration Date or the Final
Expiration Date, any Right Certificate may be transferred, or split up, combined
or exchanged for one or more other Right Certificates, entitling the registered
holder to purchase a like number of shares of Preferred Stock as the Right
Certificate or Right Certificates surrendered then entitled such holder to
purchase. Any registered holder desiring to transfer any Right Certificate shall
surrender the Right Certificate at the office of the Rights Agent designated for
that purpose with the form of certificate and assignment on the reverse side
thereof duly endorsed (or enclosed with such Right Certificate a written
instrument of transfer in a form satisfactory to the Company and the Rights
Agent), duly executed by the registered holder thereof or his attorney duly
authorized in writing, and with such signature duly guaranteed. Any registered
holder desiring to split up, combine or exchange any Right Certificate shall
make such request in writing delivered to the Rights Agent, and shall surrender
the Right Certificate to be split up, combined or exchanged at the office of the
Rights Agent designated therefor. Thereupon, the Rights Agent shall countersign
and deliver to the person entitled thereto a Right Certificate or Right
Certificates, as the case may be, as so requested. The Company may require
payment of a sum sufficient to cover any transfer tax that may be imposed in
connection with any transfer, split up, combination or exchange of any Right
Certificates.
(b) Subject to the provisions of Sections 7(e), 7(f) and 14 hereof, upon
receipt by the Company and the Rights Agent of evidence reasonably satisfactory
to them of the loss, theft, destruction or mutilation of a Right Certificate,
and, in case of loss, theft or destruction, of indemnity or security reasonably
satisfactory to them and, if requested by the Company, reimbursement to the
Company and the Rights Agent of all reasonable expenses incidental thereto, or
upon surrender to the Rights Agent and cancellation of the Right Certificate if
mutilated, the Company shall issue and deliver a new Right Certificate of like
tenor to the Rights Agent for delivery to the registered owner in lieu of the
Right Certificate so lost, stolen, destroyed or mutilated.
Section 7. Exercise of Rights: Exercise Price: Expiration Date of Rights.
(a) The Rights shall not be exercisable until, and shall become exercisable
on, the Distribution Date (unless otherwise provided herein, including, without
limitation, the restrictions on exercisability set forth in Sections 7(e) and
23(a) hereof). Except as otherwise provided herein, the Rights may be exercised,
in whole or in part, at any time commencing with the Distribution Date upon
surrender of the Right Certificate, with the form of election to purchase and
the certificate on the reverse side thereof duly executed (with signatures duly
guaranteed), to the Rights Agent at the principal office of the Rights Agent in
South Saint ▇▇▇▇, Minnesota, together with payment of the Exercise Price with
respect to the total number of one one-hundredths (1/100) of a share (or other
securities, cash or other assets, as the case may be) as to which such
surrendered Rights are then exercisable, subject to adjustment as hereinafter
provided, at or prior to the Close of Business on the earlier of (i) April 4,
2007 (the "Final Expiration Date") or (ii) the date on which the Rights are
redeemed as provided in Section 23 hereof (such earlier date herein referred to
as the "Expiration Date").
(b) The Exercise Price for each one one-hundredth (1/100) of a share of
Preferred Stock pursuant to the exercise of a Right shall initially be Fifty
Dollars ($50.00). The Exercise Price and the number of shares of Preferred Stock
or other securities to be acquired upon exercise of a Right shall be subject to
adjustment from time to time as provided in Sections 11 and 13 hereof and shall
be payable in accordance with paragraph (c) below.
(c) Except as otherwise provided herein, upon receipt of a Right
Certificate with the form of election to purchase duly executed, accompanied by
payment by certified check, cashier's check, bank draft or money order payable
to the Company or the Rights Agent of the Exercise Price for the shares to be
purchased and an amount equal to any applicable transfer tax required to be paid
by the holder of the Right Certificate in accordance with Section 9(e) hereof,
the Rights Agent shall thereupon promptly (i) requisition from any transfer
agent of the Preferred Stock of the Company one or more certificates
representing the number of shares of Preferred Stock to be so purchased, and the
Company hereby authorizes and directs such transfer agent to comply with all
such requests; (ii) as provided in Section 14(b), at the election of the
Company, cause depository receipts to be issued in lieu of fractional shares of
Preferred Stock; (iii) if the election provided for in the immediately preceding
clause (ii) has not been made, requisition from the Company the amount of cash
to be paid in lieu of the issuance of fractional shares in accordance with
Section 14(b) hereof; (iv) after receipt of such Preferred Stock certificates,
and if applicable, depository receipts, cause the same to be delivered to or
upon the order of the registered holder of such Right Certificate, registered in
such name or names as may be designated by such holder; and (v) when
appropriate, after receipt, promptly deliver such cash to or upon the order of
the registered holder of such Right Certificate; provided, however, that in the
case of a purchase of securities, other than Preferred Stock, pursuant to
Section 13 hereof, the Rights Agent shall promptly take the appropriate actions
corresponding in such case to that referred to in the foregoing clauses (i)
through (v) of this Section 7(c). Notwithstanding the foregoing provisions of
this Section 7(c), the Company may suspend the issuance of shares of Preferred
Stock upon exercise of a Right for a reasonable period, not in excess of ninety
(90) days, during which time the Company seeks to register under the Securities
Act of 1933, as amended (the "Act"), and any applicable securities law of any
other jurisdiction, the shares of Preferred Stock to be issued pursuant to the
Rights; provided, however, that nothing contained in this Section 7(c) shall
relieve the Company of its obligations under Section 9(c) hereof.
(d) In case the registered holder of any Right Certificate shall exercise
less than all the Rights evidenced thereby, a new Right Certificate evidencing
Rights equivalent to the remaining unexercised Rights shall be issued by the
Rights Agent to the registered holder of such Right Certificate or his assign,
subject to the provisions of Section 14(b) hereof.
(e) Notwithstanding any provision of this Rights Agreement to the contrary,
from and after the first occurrence of an event described in Section 11(a)(ii)
herein, any Rights Beneficially Owned by (i) an Acquiring Person, or any
Associate or Affiliate of such Acquiring Person, which a majority of the
Continuing Directors, in their sole discretion, determines is or was involved in
or caused or facilitated, directly or indirectly (including through any change
in the Board), such event, (ii) a transferee of any Rights Beneficially Owned by
such Acquiring Person (or of any such Associate or Affiliate) who becomes a
transferee after such Acquiring Person becomes such, or (iii) a transferee of
any Rights Beneficially owned by such Acquiring Person (or any such Associate or
Affiliate) who becomes a transferee prior to or concurrently with such Acquiring
Person becoming such and receives such Rights pursuant to either (A) a transfer
(whether or not for consideration) from such Acquiring Person to holders of
equity interests in such Acquiring Person or to any Person with whom such
Acquiring Person has any continuing agreement, arrangement or understanding
regarding the transferred Rights or (B) a transfer which a majority of the
Continuing Directors has determined is part of a plan, arrangement or
understanding which has a primary purpose or effect of avoiding the provisions
of this Section 7(e), shall become null and void without any further action and
any holder of such Rights shall thereafter have no rights whatsoever with
respect to such Rights, whether under any provision of this Rights Agreement or
otherwise. The Company shall use all reasonable efforts to ensure that the
provisions of this Section 7(e) are complied with, but shall have no liability
to any holder of Right Certificates or any other Person as a result of its
failure to make any determination with respect to an Acquiring Person or its
Affiliates, Associates or transferees hereunder. No Right Certificate shall be
issued pursuant to Section 3 hereof that represents Rights Beneficially Owned by
an Acquiring Person whose Rights would be void pursuant to the provisions of
this Section 7(e) or any Associate or Affiliate thereof; no Right Certificate
shall be issued at any time upon the transfer of any Rights to an Acquiring
Person whose Rights would be void pursuant to the provisions of this Section
7(e) or any Associate or Affiliate thereof or to any nominee of such Acquiring
Person, Associate or Affiliate; and any Right Certificate delivered to the
Rights Agent for transfer to an Acquiring Person whose Rights would be void
pursuant to the provisions of this Section 7(e) shall be cancelled.
(f) Notwithstanding anything in this Agreement to the contrary, neither the
Rights Agent nor the Company shall be obligated to undertake any action with
respect to a registered holder upon the occurrence of any purported exercise as
set forth in this Section 7 unless such registered holder shall have (i)
completed and signed the certificate following the form of election to purchase
set forth on the reverse side of the Right Certificate surrendered for such
exercise and (ii) provided such additional evidence of the identity of the
Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates
thereof as the Company shall reasonably request.
Section 8. Cancellation and Destruction of Right Certificates. All Rights
Certificates surrendered for the purpose of exercise, transfer, split up,
combination or exchange shall, if surrendered to the Company or to any of its
agents, be delivered to the Rights Agent for cancellation or in cancelled form,
or, if surrendered to the Rights Agent, shall be cancelled by it, and no Right
Certificates shall be issued in lieu thereof except as expressly permitted by
any of the provisions of this Rights Agreement. The Company shall deliver to the
Rights Agent for cancellation and retirement, and the Rights Agent shall cancel
and retire, any Right Certificate purchased or acquired by the Company otherwise
than upon the exercise thereof. The Rights Agent shall deliver all cancelled
Right Certificates to the Company.
Section 9. Reservation and Availability of Shares of Preferred Stock.
(a) The Company covenants and agrees that it will cause to be reserved and
kept available out of its authorized and unissued shares of Preferred Stock
(and, following the occurrence of an event described in Section 11(a)(ii) or 13,
out of its authorized and unissued shares of Common Stock and/or other
securities), the number of shares of Preferred Stock (and, following the
occurrence of an event described in Section 11(a)(ii) or 13, Common Stock and/or
other securities) that, as provided in this Agreement including Section
11(a)(iii) hereof, will be sufficient to permit exercise in full of all
outstanding Rights.
(b) The Company shall use its best efforts to cause, from and after such
time as the Rights become exercisable, all shares of Preferred Stock issued or
reserved for issuance in accordance with this Rights Agreement to be listed,
upon official notice of issuance, upon the principal national securities
exchange, if any, upon which the Common Stock is listed or, if the principal
market for the Common Stock is not on any national securities exchange, to be
eligible for quotation in the National Association of Securities Dealers'
Automated Quotation System ("NASDAQ") or any successor thereto or other
comparable quotation system.
(c) The Company covenants and agrees that it will take all such action as
may be necessary to insure that all shares delivered upon the exercise of Rights
shall, at the time of delivery of the certificates for such shares (subject to
payment of the Exercise Price in respect thereof), be duly and validly
authorized and issued and fully paid and nonassessable shares.
(d) The Company shall use its best efforts to (i) file, as soon as
practicable following the occurrence of the event described in Section 11(a)(ii)
or 13, or as soon as is required by law following the Distribution Date, as the
case may be, a registration statement under the Act, with respect to the
securities purchasable upon exercise of the Rights on an appropriate form; (ii)
cause such registration statement to become effective as soon as practicable
after such filing; and (iii) cause such registration statement to remain
effective (with a prospectus at all times meeting the requirements of the Act)
until the earlier of (A) the date as of which the Rights are no longer
exercisable for such securities, and (B) the date of the expiration of the
Rights. The Company may temporarily suspend, for a period not to exceed ninety
(90) days, the issuance of securities upon exercise of a Right in order to
prepare and file a registration statement under the Act and permit it to become
effective. Upon any such suspension, the Company shall issue a public
announcement 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. The Company will also take such action as may be appropriate
under, or to ensure compliance with, the securities or "Blue Sky" laws of the
various states in connection with the exercisability of the Rights.
Notwithstanding any provision of this Rights Agreement to the contrary, the
Rights shall not be exercisable in any jurisdiction unless the requisite
qualification in such jurisdiction shall have been obtained and until a
registration statement under the Act if required, shall have been declared
effective.
(e) The Company covenants and agrees that it will pay when due and payable
any and all federal and state transfer taxes and charges which may be payable in
respect of the issuance or delivery of the Right Certificates or of any
securities upon the exercise of Rights. The Company shall not, however, be
required to pay any transfer tax which may be payable in respect of any transfer
or delivery of a Right Certificate to a Person other than, or the issuance or
delivery of certificates for securities upon exercise of Rights in a name other
than that of, the registered holder of the Right Certificate, and the Company
shall not be required to issue or deliver a Right Certificate or certificate for
such securities to a Person other than such registered holder until any such
transfer tax shall have been paid (any such transfer tax being payable by the
holder of such Right Certificate at the time of surrender) or until it has been
established to the Company's reasonable satisfaction that no such transfer tax
is due.
Section 10. Preferred Stock Record Date. Each Person in whose name any
certificate for shares of Preferred Stock (or Common Stock and/or other
securities, as the case may be) is issued upon the exercise of Rights shall for
all purposes be deemed to have become the holder of record of the Preferred
Stock (or Common Stock and/or other securities, as the case may be) represented
thereby, and such certificate shall be dated as of the date upon which the Right
Certificate evidencing such Rights was duly surrendered and payment of the
Exercise Price (and any applicable transfer taxes) was made; provided, however,
that, if the date of such surrender and payment is a date upon which the
Preferred Stock (or Common Stock and/or other securities, as the case may be)
transfer books of the Company are closed, such Person shall be deemed to have
become the record holder of such shares on, and such certificate shall be dated
as of, the next succeeding Business Day on which the Preferred Stock (or Common
Stock and/or other securities, as the case may be) transfer books of the Company
are open. Prior to the exercise of the Rights evidenced thereby, the holder of a
Right Certificate, as such, shall not be entitled to any rights of a stockholder
of the Company with respect to shares for which the Rights shall be exercisable,
including, without limitation, the right to vote, to receive dividends or other
distributions or to exercise any preemptive rights, and shall not be entitled to
receive any notice of any proceedings of the Company, except as provided herein.
Section 11. Adjustment of Exercise Price or Number of Shares. The Exercise
Price and the number and kind of shares which may be purchased upon exercise of
a Right are subject to adjustment from time to time as provided in this Section
11.
(a) (i) In the event the Company shall at any time after the date of
this Rights Agreement (A) declare or pay any dividend on Common Stock
payable in shares of Common Stock, (B) subdivide or split the outstanding
shares of Common Stock into a greater number of shares or (C) combine or
consolidate the outstanding shares of Common Stock into a smaller number of
shares or effect a reverse split of the outstanding shares of Common Stock,
then and in each such event the number and kind of shares of Preferred
Stock or capital stock issuable upon the exercise of a Right after the
Record Date for such event (if one shall have been established or, if not,
after the date of such event) shall be the number of shares of Preferred
Stock or capital stock issuable pursuant to such right immediately prior to
such event multiplied by a fraction, the numerator of which is the number
of Rights outstanding immediately prior to such event, and the denominator
of which is the number of Rights outstanding immediately after such event
and the Exercise Price after such event shall be the Exercise Price in
effect immediately prior to such event multiplied by such fraction. If an
event occurs which would require an adjustment under both this Section
11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this
Section 11(a)(i) shall be in addition to, and shall be made prior to, any
adjustment required pursuant to Section 11(a)(ii).
(ii) Subject to Sections 23(a) and 24 herein, in the event that any
Person (other than an Exempt Person), alone or together with its Affiliates
and Associates, shall become an Acquiring Person, except pursuant to a
Qualifying Tender Offer and except as otherwise provided in this Section
11, each holder of a Right, except as provided in Section 7(e) hereof,
shall thereafter have the right to receive upon exercise of such Right in
accordance with the terms of this Rights Agreement and payment of the
Exercise Price, the greater of (A) the amount of Preferred Stock for which
such Right was exercisable immediately prior to the first occurrence of the
event described in this Section 11(a)(ii) or (B) the amount of Preferred
Stock, based on the per share Fair Market Value of the Preferred Stock
(determined pursuant to Section 11(d) hereof) on the date of such first
occurrence, having a value equal to twice the Exercise Price; provided,
however, that if the transaction that would otherwise give rise to the
foregoing adjustment is also subject to the provisions of Section 13
hereof, then only the provisions of Section 13 hereof shall apply and no
adjustment shall be made pursuant to this Section 11(a)(ii); further
provided, however, in lieu of Preferred Stock, each holder of a Right,
except as provided in Section 7(e) hereof, may thereafter elect to receive
upon and at the time of exercise of such Right, such number of shares of
Common Stock as, based upon the per share Fair Market Value of the Common
Stock (determined pursuant to Section 11(d) hereof) on the date of such
first occurrence, have a value equal to twice the Exercise Price. From and
after the occurrence of an event described above, any Rights that are or
were acquired or Beneficially Owned by any Acquiring Person (or any
Associate or Affiliate of any Acquiring Person) or any transferee of any of
the foregoing shall be void and any holder of such Rights shall thereafter
have no right to exercise such Rights under any provision of this
Agreement. No Right Certificate shall be issued pursuant to Section 3 that
represents Rights Beneficially Owned by an Acquiring Person whose rights
would be void pursuant to the preceding sentence or any Associate or
Affiliate thereof, and no Right Certificate shall be issued pursuant to
Section 3 upon the transfer of any Rights to an Acquiring Person whose
Rights would be void pursuant to the preceding sentence or any Associate or
Affiliate thereof, or to any transferee or nominee of such an Acquiring
Person, Associate or Affiliate, and any Right Certificate delivered to the
Rights Agent for transfer to an Acquiring Person whose rights would be void
pursuant to the preceding sentence or any Associate or Affiliate thereof
shall be cancelled. In the event that any Person shall become an Acquiring
Person and any Rights shall be outstanding, the Company shall not take any
action that would eliminate or diminish the benefits intended to be
afforded by the Rights.
(iii) In the event that the Company does not have available sufficient
authorized but unissued Preferred Stock and Common Stock to permit the
adjustments required pursuant to the foregoing subparagraph (i) or the
exercise in full of the Rights in accordance with the foregoing
subparagraph (ii), the Company shall take all such action as may be
necessary to authorize and reserve for issuance such number of additional
shares of Preferred Stock and Common Stock as may from time to time be
required to be issued upon the exercise in full of all Rights from time to
time outstanding and, if necessary, shall use its best efforts to obtain
stockholder approval thereof. In lieu of issuing shares of Preferred Stock
in accordance with the foregoing subparagraphs (i) and (ii), the Company
may, subject to approval by a majority of the Continuing Directors of the
Board, if it determines that such action is necessary or appropriate and
not contrary to the interests of holders of the Rights, elect to issue or
pay, upon the exercise of the Rights, cash, property, or shares of
Preferred Stock or Common Stock, or any combination thereof. Such cash,
property, or shares of Preferred Stock or Common Stock shall have a value
equal to the Fair Market Value of the shares of Preferred Stock that
otherwise would have been required to be issued upon such exercise of the
Rights. The Fair Market Value of the Preferred Stock shall be determined
pursuant to Section 11(d). Subject to Section 23 hereof, any such election
by the Continuing Directors must be made and publicly announced within
thirty (30) days after the date on which the event described in Section
11(a)(ii) occurs.
(b) In case the Company shall fix a record date for the issuance of rights,
options or warrants to all holders of Preferred Stock entitling them (for a
period expiring within 45 calendar days after such record date) to subscribe for
or purchase Preferred Stock (or shares having the same rights, privileges and
preferences as the Preferred Stock ("equivalent preference shares")) or
securities convertible into Preferred Stock or equivalent preference shares at a
price per share of Preferred Stock or equivalent preference share (or having a
conversion price per share, if a security convertible into Preferred Stock or
equivalent preference shares) less than the then current Fair Market Value of a
share of Preferred Stock (determined pursuant to Section 11(d) hereof) on such
record date, the Exercise Price to be in effect after such record date shall be
determined by multiplying the Exercise Price in effect immediately prior to such
record date by a fraction, the numerator of which shall be the number of shares
of Preferred Stock and equivalent preference shares outstanding on such record
date plus the number of shares of Preferred Stock and equivalent preference
shares which the aggregate offering price of the total number of shares of
Preferred Stock and/or equivalent preference 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 Fair Market Value and the denominator of
which shall be the number of shares of Preferred Stock and equivalent preference
shares outstanding on such record date plus the number of additional shares of
Preferred Stock and/or equivalent preference 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 of the Company issuable upon
exercise of one Right. In case such subscription price may be paid in a
consideration part or all of which shall be in a form other than cash, the value
of such consideration shall be as determined in good faith by a majority of the
Continuing Directors, or, if there are none, by the Board of Directors of the
Company, whose determination shall be described in a statement filed with the
Rights Agent. Shares of Preferred Stock and equivalent preference shares owned
by or held for the account of the Company shall not be deemed outstanding for
the purpose of any such computation. Such adjustment shall be made successively
whenever such a record date is fixed; and in the event that such rights, options
or warrants are not so issued, the Exercise Price shall be adjusted to be the
Exercise Price which would then be in effect if such record date had not been
fixed.
(c) In case the Company shall fix a record date for the making of a
distribution to all holders of the Preferred Stock (including any such
distribution made in connection with a consolidation or merger in which the
Company is the continuing or surviving corporation) of evidences of indebtedness
or assets (other than a regular quarterly cash dividend or a dividend payable in
Preferred Stock) or subscription rights or warrants (excluding those referred to
in Section 11(b) hereof), the Exercise Price to be in effect after such record
date shall be determined by multiplying the Exercise Price in effect immediately
prior to such record date by a fraction, the numerator of which shall be the
then current Fair Market Value of a share of the Preferred Stock (determined
pursuant to Section 11(d) hereof) on such record date, less the Fair Market
Value (as determined in good faith by a majority of the Continuing Directors,
or, if there are none, by the Board of Directors of the Company, whose
determination shall be described in a statement filed with the Rights Agent) of
the portion of the assets or evidences of indebtedness so to be distributed or
of such subscription rights or warrants applicable to one share of Preferred
Stock and the denominator of which shall be such current Fair Market Value
(determined pursuant to Section 11(d) hereof) of a share of Preferred Stock;
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 of the Company to be issued upon exercise of one Right. Such
adjustments shall be made successively whenever such a record date is fixed; and
in the event that such distribution is not so made, the Exercise Price shall
again be adjusted to be the Exercise Price which would then be in effect if such
record date had not been fixed.
(d) For the purpose of this Rights Agreement, the "Fair Market Value" of
any share of Preferred Stock, Common Stock or any other stock or any Right or
other security or any other property on any date shall be determined as provided
in this Section 11(d). In the case of a publicly traded stock or other security,
the Fair Market Value on any date shall be deemed to be the average of the daily
closing prices per share of such stock or per unit of such other security for
the 30 consecutive Trading Days (as such term is hereinafter defined)
immediately prior to such date; provided, however, that in the event that the
Fair Market Value per share of any share of Common Stock is determined during a
period which includes any date that is within 30 Trading Days after (i) the
ex-dividend date for a dividend or distribution on such stock payable in shares
of Common Stock or securities convertible into shares of Common Stock, or (ii)
effective date of any subdivision, split, combination, consolidation, reverse
stock split or reclassification of such stock, then, and in each such case, the
Fair Market Value shall be appropriately adjusted by a majority of the
Continuing Directors, or, if there are none, by the Board, to take into account
ex-dividend or post-effective date trading. The closing price for any day shall
be the last sale price, regular way, or, in case no such sale takes place on
such day, the average of the closing bid and asked prices, regular way (in
either case, as reported in the applicable transaction reporting system with
respect to securities listed or admitted to trading on the New York Stock
Exchange), or, if the securities are not listed or admitted to trading on the
New York Stock Exchange, as reported in the applicable transaction reporting
system with respect to securities listed on the principal national securities
exchange on which such security is listed or admitted to trading; or, if 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 NASDAQ or such other
system then in use; or, if no bids for such security are 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 such security selected by the
Board. The term "Trading Day" shall mean a day on which the principal national
securities exchange on which such security is listed or admitted to trading is
open for the transaction of business or, if such security is not listed or
admitted to trading on any national securities exchange, a Business Day. If a
security is not publicly held or not so listed or traded, "Fair Market Value"
shall mean the fair value per share of stock or per other unit of such other
security, as determined by an independent investment banking firm experienced in
the valuation of securities selected in good faith by a majority of the
Continuing Directors, or, if there are none, by the Board, or, if no such
investment banking firm is, in the good faith judgment of a majority of the
Continuing Directors or the Board, as applicable, available to make such
determination, in good faith by a majority of the Continuing Directors, or, if
there are none, by the Board; provided, however, that for purposes of making the
adjustment provided for by Section 11(a)(ii)(B) hereof, the Fair Market Value of
a share of Preferred Stock shall not be less than 100% of the product of the
Fair Market Value of a share of Common Stock multiplied by the higher of the
then Dividend Multiple or Vote Multiple applicable to the Preferred Stock (as
defined in the Certificate of Designation relating to the Preferred Stock) and
shall not exceed 105% of the product of the then Fair Market Value of a share of
Common Stock multiplied by the higher of the then Dividend Multiple or Vote
Multiple applicable to the Preferred Stock. In the case of property other than
securities, the "Fair Market Value" thereof shall be determined in good faith by
a majority of the Continuing Directors, or, if there are none, by the Board,
based upon such appraisals or valuation reports of such independent experts as a
majority of the Continuing Directors or the Board, as applicable, shall in good
faith determine to be appropriate in accordance with good business practices and
the interests of the holders of Rights. Any such determination of Fair Market
Value shall be described in a statement filed with the Rights Agent and shall be
binding upon the Rights Agent.
(e) All calculations under this Section 11 shall be made to the nearest
cent or to the nearest one one-hundredth (1/100) of a share, as the case may be.
(f) Irrespective of any adjustment or change in the Exercise Price or the
securities issuable upon the exercise of the Rights, the Right Certificates
theretofore and thereafter issued may continue to express the Exercise Price and
the number of shares to be issued upon exercise of the Rights as in the initial
Right Certificates issued hereunder but, nevertheless, shall represent the
Rights as so adjusted.
(g) Before taking any action that would cause an adjustment reducing the
purchase price per whole share purchasable upon exercise of the Rights below the
then per share par value, the Company shall use its best efforts to 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 non-assessable
shares at such adjusted purchase price per share.
(h) Notwithstanding anything in this Section 11 to the contrary, in the
event of any reclassification of stock of the Company or any recapitalization,
reorganization or partial liquidation of the Company or similar transaction, the
Company shall make such further adjustments in the number and kind of shares
which may be acquired upon exercise of the Rights, and such adjustments in the
Exercise Price therefor, in addition to those adjustments expressly required by
the other paragraphs of this Section 11, as a majority of Continuing Directors
(or, if there are none, the Board) shall in good faith determine to be necessary
or appropriate in order for the holders of the Rights in such event to be
treated equitably and in accordance with the purpose and intent of this Rights
Agreement or in order that any such event shall not, but for such adjustment, in
the opinion of counsel to the Company, result in the stockholders of the Company
being subject to any United States federal income tax liability by reason
thereof.
(i) In the event the Company shall at any time after the Record Date make
any distribution on the shares of Common Stock of the Company, whether by way of
a dividend or a reclassification of stock, a recapitalization, reorganization or
partial liquidation of the Company or otherwise, in cash or any security, debt
security, debt instrument, subscription right, warrant, real or personal
property or any other property or security (other than any shares of Common
Stock) and the amount of such cash dividend or the Fair Market Value of such
security, right, warrant, debt security, debt instrument or property exceeds
150% of the aggregate amount of the cash dividends declared or paid on the
Common Stock of the Company in the 15-month period immediately preceding such
distribution, then and in each such event, unless such distribution is part of
or is made in connection with a transaction to which Section 11(a)(ii) or
Section 13 hereof applies, the Exercise Price shall be reduced by an amount
equal to the cash or the Fair Market Value of such distribution, as the case may
be, per share of Common Stock. For purposes hereof, the Fair Market Value of any
property distributed to the holders of shares of Common Stock shall be the Fair
Market Value of such property as determined by an independent investment banking
firm experienced in the valuation of securities or the other property so
distributed, as the case may be, selected in good faith by the Continuing
Directors, or, if there are none, by the Board, or, if no such investment
banking firm is in the good faith judgment of a majority of the Continuing
Directors or the Board, as applicable, available to make such determination, in
good faith by a majority of the Continuing Directors, or, if there are none, by
the Board, whose determination shall be final and binding on the Company, the
Rights Agent and the holders of Rights.
Section 12. Certification of Adjusted Exercise Price or Number of Shares.
Whenever an adjustment is made as provided in Section 11, 13 or 23(c) of this
Rights Agreement, the Company shall (a) promptly prepare a certificate setting
forth such adjustment, and a brief statement of the facts giving rise to such
adjustment, (b) promptly file with the Rights Agent and with each transfer agent
for the Preferred Stock a copy of such certificate and (c) mail a brief summary
thereof to each holder of a Right Certificate in accordance with Section 25 of
this Rights Agreement. Notwithstanding the foregoing sentence, the failure of
the Company, to make such certification or give such notice shall not affect the
validity of or the force or effect of the requirement for such adjustment. Any
adjustment to be made pursuant to Section 11, 13 or 23(c) of this Rights
Agreement shall be effective as of the date of the event giving rise to such
adjustment. The Rights Agent shall be fully protected in relying on any such
certificate and on any adjustment therein contained and shall not be deemed to
have knowledge of any adjustment unless and until it shall have received such
certificate.
Section 13. Consolidation, Merger or Sale or Transfer of Assets or Earning
Power.
(a) In the event that, following the Stock Acquisition Date, directly or
indirectly, (w) the Company shall consolidate with, or merge with and into, any
other Person (other than an Exempt Person), and the Company shall not be the
surviving or continuing corporation of such consolidation or merger, or (x) any
Person (other than an Exempt Person) shall consolidate with, or merge with and
into, the Company, and the Company shall be the continuing or surviving
corporation of such consolidation or merger and, in connection with such
consolidation or merger, all or part of the outstanding shares of Common Stock
shall be changed into or exchanged for stock or other securities of any other
Person (or the Company) or cash or other property, or (y) the Company shall
effect a statutory share exchange with the outstanding shares of Common Stock
being exchanged for stock or other securities of any other Person or cash or
other property, or (z) the Company or one or more of its Subsidiaries shall,
directly or indirectly, sell or otherwise transfer to any other Person, or any
Affiliate or Associate of such Person, in one or more transactions, or the
Company or one or more of its Subsidiaries shall sell or otherwise transfer to
any Persons in one or a series of related transactions, assets or earning power
aggregating 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 any Subsidiary of the Company in one or more transactions) then, on the first
occurrence of any such event, proper provision shall be made so that (i) each
holder of record of a Right, except as provided in Section 7(e) hereof, shall
thereafter have the right to receive, upon the exercise thereof and payment of
the Exercise Price in accordance with the terms of this Rights Agreement, such
number of shares of validly issued, fully paid, nonassessable and freely
tradable Common Stock of the Principal Party (as defined herein), not subject to
any liens, encumbrances, rights of first refusal or other adverse claims, as
shall, based on the Fair Market Value of the Common Stock of the Principal Party
on the date of the consummation of such consolidation, merger, sale or transfer,
equal twice the Exercise Price; (ii) such Principal Party shall thereafter be
liable for, and shall assume, by virtue of such consolidation, merger, sale or
transfer, all the obligations and duties of the Company pursuant to this Rights
Agreement; (iii) the term "Company" for all purposes of this Rights Agreement
shall thereafter be deemed to refer to such Principal Party; (iv) such Principal
Party shall take such steps (including, but not limited to, the reservation of a
sufficient number of shares of its Common Stock in accordance with the
provisions of Section 9 hereof) in connection with such consummation as may be
necessary to assure that the provisions hereof shall thereafter be applicable,
as nearly as reasonably may be, in relation to its shares of Common Stock
thereafter deliverable upon the exercise of the Rights; provided, however, that
upon the subsequent occurrence of any merger, consolidation, sale of all or
substantially all of the assets, recapitalization, reclassification of shares,
reorganization or other extraordinary transaction in respect of such Principal
Party, each holder of a Right shall thereupon be entitled to receive, upon
exercise of a Right and payment of the Exercise Price, such cash, shares,
rights, warrants and other property which such holder would have been entitled
to receive had it, at the time of such transaction, owned the shares of Common
Stock of the Principal Party purchasable upon the exercise of a Right, and such
Principal Party shall take such steps (including, but not limited to,
reservation of shares of stock) as may be necessary to permit the subsequent
exercise of the Rights in accordance with the terms hereof for such cash,
shares, rights, warrants and other property; and (v) the provisions of Section
11(a)(ii) hereof shall be of no effect following the occurrence of any event
described in clause (x), (y) or (z) above of this Section 13(a).
(b) "Principal Party" shall mean
(i) in the case of any transaction described in (w), (x) or (y)
of the first sentence of Section 13(a) hereof: (A) the Person that is
the issuer of the securities into which shares of Common Stock of the
Company are changed or otherwise exchanged or converted in such
merger, consolidation or exchange, or, if there is more than one such
issuer, the issuer of the Common Stock of which has the greatest
aggregate market value of shares outstanding or (B) if no such
securities are so issued, (x) the Person that is the other party to
the merger, consolidation or exchange and that survives such merger,
consolidation or exchange, or, if there is more than one such Person,
the Person the Common Stock of which has the greatest aggregate market
value of shares outstanding or (y) if the Person that is the other
party to the merger, consolidation or exchange does not survive the
merger, consolidation or exchange, the Person that does survive the
merge, consolidation, or exchange (including the Company if it
survives); and
(ii) in the case of any transaction described in (z) of the first
sentence in Section 13(a), the Person that is the party receiving the
greatest portion of the assets or earning power transferred pursuant
to such transaction or transactions, or, if each Person that is a
party to such transaction or transactions receives the same portion of
the assets or earning power so transferred or if the Person receiving
the greatest portion of the assets or earning power cannot be
determined, whichever of such Persons as is the issuer of Common Stock
having the greatest aggregate market value of shares outstanding;
provided, however, that in any such case, if the Common Stock of such
Person is not at such time and has not been continuously over the
preceding 12-month period registered under Section 12 of the Exchange
Act, and such Person is a direct or indirect Subsidiary of another
Person the Common Stock of which is and has been so registered, the
term "Principal Party" shall refer to such other Person, or if such
Person is a Subsidiary, directly or indirectly, of more than one
Person, the Common Stocks of all of which are and have been so
registered, the term "Principal Party" shall refer to whichever of
such Persons is the issuer of the Common Stock having the greatest
aggregate market value of shares outstanding.
(c) The Company shall not consummate any consolidation, merger or sale or
transfer of assets or earning power referred to in Section 13(a) unless the
Principal Party shall have a sufficient number of authorized shares of its
Common Stock that have not been issued or reserved for issuance to permit
exercise in full of all Rights in accordance with this Section 13 and unless
prior thereto the Company and the Principal Party involved therein shall have
executed and delivered to the Rights Agent an agreement confirming that the
Principal Party shall, upon consummation of such consolidation, merger, exchange
or sale or transfer of assets or earning power, assume this Rights Agreement in
accordance with Section 13(a) hereof and that all rights of first refusal or
preemptive rights in respect of the issuance of shares of Common Stock of the
Principal Party upon exercise of outstanding Rights have been waived and that
such transaction shall not result in a default by the Principal Party under this
Rights Agreement, and further providing that, as soon as practicable after the
date of any consolidation, merger, exchange or sale or transfer of assets or
earning power referred to in Section 13(a) hereof, the Principal Party will:
(i) prepare and file a registration statement under the Act with
respect to the Rights and the securities purchasable upon exercise of
the Rights on an appropriate form, use its best efforts to cause such
registration statement to become effective as soon as practicable
after such filing and use its best efforts to cause such registration
statement to remain effective (with a prospectus at all times meeting
the requirements of the Act) until the date of expiration of the
Rights, and similarly comply with applicable state securities laws;
(ii) use its best efforts to list (or continue the listing of)
the Rights and the securities purchasable upon exercise of the Rights
on a national securities exchange or to meet the eligibility
requirements for quotation on NASDAQ; and
(iii) deliver to holders of the Rights historical financial
statements for the Principal Party which comply in all respects with
the requirements for registration on Form 10 (or any successor form)
under the Exchange Act.
In the event that any of the transactions described in Section 13(a) hereof
shall occur at any time after the occurrence of a transaction described in
Section 11(a)(ii) hereof, the Rights which have not theretofore been exercised
shall, subject to the provisions of Section 7(e) hereof, thereafter be
exercisable in the manner described in Section 13(a) hereof.
(d) The Company shall not enter into any transaction referred to in this
Section 13 if at the time of such transaction there are any rights, warrants,
instruments or securities outstanding or any agreements or arrangements or other
provisions which, as a result of the consummation of such transaction, would
eliminate or substantially diminish the benefits intended to be afforded by the
Rights. In that regard, and without limiting the foregoing, in case the
Principal Party which is to be a party to a transaction referred to in this
Section 13 has any provision in any of its authorized securities or in its
Articles or Certificate of Incorporation or Bylaws or other instrument governing
its corporate affairs, which provision would have the effect of (i) causing such
Principal Party to issue, in connection with, or as a consequence of the
consummation of a transaction referred to in this Section 13, shares of Common
Stock of such Principal Party at less than the then Fair Market Value per share
(determined pursuant to Section 11(d) hereof) or securities exercisable for, or
convertible into, Common Stock of such Principal Party at less than such then
Fair Market Value (other than to holders of Rights pursuant to this Section 13)
or (ii) providing for any special tax or similar payment in connection with the
issuance to any holder of a Right of Common Stock of such Principal Party
pursuant to the provisions of this Section 13, then, in such event, the Company
shall not consummate any such transaction unless prior thereto the Company and
such Principal Party shall have executed and delivered to the Rights Agent a
supplemental agreement providing that the provision in question of such
Principal Party shall have been cancelled, waived or amended, or that the
authorized securities shall be redeemed, so that the applicable provision will
have no effect in connection with, or as a consequence of, the consummation of
the proposed transaction.
Section 14. Fractional Rights and Fractional Shares.
(a) The Company shall not be required to issue fractions of Rights or to
distribute Right Certificates which evidence fractional Rights. In lieu of such
fractional Rights, there shall be paid to the registered holders of the Right
Certificates with regard to which such fractional Rights would otherwise be
issuable, an amount in cash equal to the same fraction of the Fair Market Value
of the whole Right.
(b) The Company shall not be required to issue fractions of shares of
Preferred Stock (other than fractions which are integral multiples of one
one-hundredth of a share or, if a Right shall then be exercisable for a fraction
other than one one-hundredth of a share, integral multiples of that fraction)
upon exercise of the Rights or to distribute certificates which evidence
fractional shares (other than fractions which are integral multiples of one
one-hundredth of a share or, if a Right shall then be exercisable for a fraction
other than one one-hundredth of a share, integral multiples of that fraction).
In lieu of issuing fractions of shares of Preferred Stock, the Company may, at
its election, issue depositary receipts evidencing fractions of shares pursuant
to an appropriate agreement between the Company and a depositary selected by it,
provided that such agreement shall provide that the holders of such depositary
receipts shall have all of the rights, privileges and preferences to which they
would be entitled as owners of the Preferred Stock. With respect to fractional
shares that are not integral multiples of one one-hundredth of a share or, if a
Right shall then be exercisable for a fraction other than one one-hundredth of a
share, are not integral multiples of that fraction, if the Company does not
issue such fractional shares or depositary receipts in lieu thereof, there shall
be paid to the holders of record of Right Certificates at the time such Right
Certificates are exercised as herein provided an amount in cash equal to the
same fraction of the Fair Market Value of a share of Preferred Stock.
(c) The holder of a Right by the acceptance of a Right expressly waives his
right to receive any fractional Rights or any fractional shares of Preferred
Stock (other than fractions which are integral multiples of one one-hundredth of
a share or, if a Right shall then be exercisable for a fraction other than one
one-hundredth of a share, integral multiples of that fraction) upon exercise of
a Right.
Section 15. Rights of Action. All rights of action in respect of this
Rights Agreement, except the rights of action given to the Rights Agent in
Section 18 hereof, are vested in the respective registered holders of the Right
Certificates (and, prior to the Distribution Date, the registered holders of the
Common Stock); and any registered holder of any Right Certificate (or, prior to
the Distribution Date, of the Common Stock), without the consent of the Rights
Agent or of the holder of any other Right Certificate (or, prior to the
Distribution Date, of the Common Stock), may, in his own behalf and for his own
benefit, enforce, 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 Rights 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 Rights Agreement and will be entitled to specific
performance of the obligations under, and injunctive relief against actual or
threatened violations of the obligations of any Person subject to this
Agreement.
Section 16. Agreement of Right Holders. Every holder of a Right, by
accepting the same, consents and agrees with the Company and the Rights Agent
and with every other holder of a Right that:
(a) prior to the Distribution Date, the Rights will be transferable only in
connection with the transfer of Common Stock;
(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
(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 Stock certificate) is registered as the absolute owner thereof and of the
Rights evidenced thereby (notwithstanding any notations of ownership or writing
on the Right Certificates or the associated Common Stock certificate made by
anyone other than the Company or the Rights Agent) for all purposes whatsoever,
and neither the Company nor the Rights Agent shall be affected by any notice to
the contrary.
Section 17. Right Certificate Holder Not Deemed a Stockholder. No holder,
as such, of any Right Certificate shall be entitled to vote, receive dividends
or be deemed for any purpose the holder of Preferred Stock or any other
securities of the Company which may at any time be issuable on the exercise of
the Rights represented thereby, nor shall anything contained herein or in any
Right Certificate be construed to confer upon the holder of any Right
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 hereof), or to receive dividends
or subscription rights, or otherwise, until the Right or Rights evidenced by
such Right Certificate shall have been exercised in accordance with the
provisions hereof.
Section 18. Concerning the Rights Agent.
(a) The Company agrees to pay to the Rights Agent reasonable compensation
for all services rendered by it hereunder and, from time to time, on demand of
the Rights Agent, its reasonable expenses and counsel fees and other
distributions incurred in the administration and execution of this Rights
Agreement and the exercise and performance of its duties hereunder. The Company
also agrees to indemnify the Rights Agent for, and to hold it harmless against,
any loss, liability, or expense, incurred without negligence, bad faith or
willful misconduct on the part of the Rights Agent, for anything done or omitted
by the Rights Agent in connection with the acceptance and administration of this
Rights Agreement, including the costs and expenses of defending against any
claim of liability relating to the Rights or this Rights Agreement.
(b) The Rights Agent shall be protected against, and shall incur no
liability for or in respect of, any action taken, suffered or omitted by it in
connection with its administration of this Rights Agreement in reliance upon any
Right Certificate or certificate for Preferred Stock or for other securities of
the Company, instrument of assignment or transfer, power of attorney,
endorsement, affidavit, letter, notice, direction, consent, certificate,
statement or other paper or document believed by it to be genuine and to be
signed, executed and, where necessary, verified or acknowledged, by the proper
Person or Persons, or otherwise upon the advice of counsel as set forth in
Section 20 hereof.
Section 19. Merger or Consolidation of, or Change in Name of, the Rights
Agent.
(a) Any corporation into which the Rights Agent or any successor Rights
Agent may be merged or consolidated, or any corporation resulting from any
merger or consolidation to which the Rights Agent or any successor Rights Agent
shall be a party, or any corporation succeeding to the corporate trust or stock
transfer business of the Rights Agent or any successor Rights Agent, shall be
the successor to the Rights Agent under this Rights Agreement without the
execution or filing of any paper or any further act on the part of any of the
parties hereto; provided that such corporation would be eligible for appointment
as a successor Rights Agent under the provisions of Section 21 hereof. In case
at the time such successor Rights Agent shall succeed to the agency created by
this Rights Agreement, any of the Rights Certificates shall have been
countersigned but not delivered, any such successor Rights Agent may adopt the
countersignature of the predecessor Rights Agent and deliver such Right
Certificates so countersigned; and in case at that time any of the Right
Certificates shall not have been countersigned, any successor Rights Agent may
countersign such Right Certificates either in the name of the predecessor Rights
Agent or in the name of the successor Rights Agent; and in all such cases such
Right Certificates shall have the full force provided in the Right Certificates
and in this Rights Agreement.
(b) In case at any time the name of the Rights Agent shall be changed and
at such time any of the Right Certificates shall have been countersigned but not
delivered, the Rights Agent may adopt the countersignature under its prior name
and deliver Right Certificates so countersigned; in case at that time any of the
Right Certificates shall not have been countersigned, the Rights Agent may
countersign such Right Certificates either in its prior name or in its changed
name; in all such cases such Right Certificates shall have the full force
provided in the Right Certificates and in this Rights Agreement.
Section 20. Duties of Rights Agent. The Rights Agent undertakes the duties
and obligations imposed by this Rights Agreement upon the following terms and
conditions, by all of which the Company and the holders of Right Certificates by
their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel (who may be legal
counsel for the Company), and the opinion of such counsel shall be full and
complete authorization and protection to the Rights Agent as to any action taken
or omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Rights Agreement
the Rights Agent shall deem it necessary or desirable that any fact or matter be
proved or established by the Company prior to taking or suffering any action
hereunder, such fact or matter (unless other evidence in respect thereof be
herein specifically prescribed) may be defined to be conclusively proved and
established by a certificate signed by the Chairman of the Board, the Chief
Executive Officer, the President or any Vice President and by the Chief
Financial Officer, the Secretary or an Assistant Secretary of the Company and
delivered to the Rights Agent. Any such certificate shall be full authorization
to the Rights Agent for any action taken or suffered in good faith by it under
the provisions of this Rights Agreement in reliance upon such certificate.
(c) The Rights Agent shall not be liable for or by reason of any of the
statements of fact or recitals contained in this Rights Agreement or in the
Right Certificates (except its countersignature thereof), or be required to
verify the same, but all such statements and recitals are and shall be deemed to
have been made by the Company only.
(d) The Rights Agent shall not be under any responsibility in respect of
the validity of this Rights Agreement or the execution and delivery hereof
(except the due execution hereof by the Rights Agent) or in respect of the
validity or execution of any Right Certificate (except its countersignature
thereof); nor shall it be responsible for any breach by the Company of any
covenant or condition contained in this Rights Agreement or in any Right
Certificate; nor shall it be responsible for any adjustment in the terms of the
Rights (including the manner, method or amount required under the provisions of
Section 11 or 13 hereof) or for ascertaining the existence of facts that would
require any such adjustment (except with respect to the exercise of Rights
evidenced by Right Certificates after receipt of a certificate furnished
pursuant to Section 12 describing such adjustment); nor shall it by any act
hereunder be deemed to make any representation or warranty as to the
authorization or reservation of any shares of Preferred Stock to be issued
pursuant to this Rights Agreement or any Right Certificate or as to whether any
shares of Preferred Stock will, when issued, be validly authorized and issued,
fully paid and nonassessable.
(e) The Company agrees that it will perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged and delivered all such
further and other acts, instruments, and assurances as may reasonably be
required by the Rights Agent for the carrying out or performing by the Rights
Agent of the provisions of this Rights Agreement.
(f) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from the
Chairman of the Board, the Chief Executive Officer, the President or any Vice
President and confirmed by the Chief Financial Officer, the Secretary or an
Assistant Secretary of the Company, and to apply to such officers for advice or
instructions in connection with its duties. The Rights Agent shall not be liable
for any action taken or suffered by it in good faith in accordance with
instructions of any such officer or for any delay in acting while waiting for
those instructions.
(g) The Rights Agent and any shareholder, director, officer or employee of
the Rights Agent may buy, sell or deal in any of the Rights or other securities
of the Company or become pecuniarily interested in any transaction in which the
Company may be interested, or contract with or lend money to the Company or
otherwise act as fully and freely as though it were not the Rights Agent under
this Rights Agreement. Nothing herein shall preclude the Rights Agent from
acting in any other capacity for the Company or for any other legal entity.
(h) The Rights Agent may execute and exercise any of the rights or powers
hereby vested in it or perform any duty hereunder either itself or by or through
its attorneys or agents, and the Rights Agent shall not be answerable or
accountable for any act, default, neglect or misconduct of any such attorneys or
agents or for any loss to the Company resulting from any such act, default,
neglect or misconduct, provided reasonable care was exercised in the selection
and continued employment thereof.
Section 21. Change of Rights Agent. The Rights Agent or any successor
Rights Agent may resign and be discharged from its duties under this Rights
Agreement upon thirty (30) days written notice mailed to the Company and to each
transfer agent of the Common Stock and the Preferred Stock by registered or
certified mail. The Company may remove the Rights Agent or any successor Rights
Agent (with or without cause) upon thirty (30) days written notice, mailed to
the Rights Agent or successor Rights Agent, as the case may be, and to each
transfer agent of the Common Stock and Preferred Stock by registered or
certified mail. If the Rights Agent shall resign or be removed or shall
otherwise become incapable of acting, the Company shall appoint a successor to
the Rights Agent. Notwithstanding the foregoing provisions of this Section 21,
in no event will the resignation or removal of a Rights Agent be effective until
a successor Rights Agent has been appointed and has accepted such appointment.
If the Company shall fail to make such appointment within a period of thirty
(30) days after such removal or after it has been notified in writing of such
resignation or incapacity by the resigning or incapacitated Rights Agent or by
the holder of a Right Certificate (who shall, with such notice, submit his Right
Certificate for inspection by the Company), then the incumbent Rights Agent or
the holder of record of any Right Certificate may apply to any court of
competent jurisdiction for the appointment of a new Rights Agent. Any successor
Rights Agent, whether appointed by the Company or by such a court, shall be (a)
a corporation organized and doing business under the laws of the United States
or of any state thereof, in good standing, which is authorized under such laws
to exercise corporate trust or stock transfer powers and is subject to
supervision or examination in the conduct of its corporate trust or stock
transfer business by federal or state authorities and which has at the time of
its appointment as Rights Agent a combined capital and surplus of at least
$100,000,000 or (b) an Affiliate controlled by a corporation described in clause
(a) of this sentence. After appointment, the successor Rights Agent shall be
vested with the same powers, rights, duties and responsibilities as if it had
been originally named as Rights Agent without further act or deed, but the
predecessor Rights Agent shall deliver and transfer to the successor Rights
Agent any property at the time held by it hereunder, and execute and deliver any
further assurance, conveyance, act or deed necessary for the purpose. Not later
than the effective date of any such appointment, the Company shall file written
notice thereof with the predecessor Rights Agent and each transfer agent of the
Common Stock and Preferred Stock, and mail a written notice thereof to the
registered holders of the Right Certificates. Failure to give any notice
provided for in this Section 21, however, or any defect therein, shall not
affect the legality or validity of the resignation or removal of the Rights
Agent or the appointment of the successor Rights Agent, as the case may be.
Notwithstanding the foregoing provisions, in the event of resignation, removal
or incapacity of the Rights Agent, the Company shall have the authority to act
as the Rights Agent until a successor Rights Agent shall have assumed the duties
of the Rights Agent hereunder.
Section 22. Issuance of New Right Certificates. Notwithstanding any of the
provisions of this Rights 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 Exercise Price per share and the number or kind or class of
shares or other securities or property purchasable under the Right Certificates
made in accordance with the provisions of this Rights Agreement.
Section 23. Redemption.
(a) The Board of Directors of the Company may, at its option by majority
vote, redeem all but not less than all of the then outstanding Rights, at any
time prior to the Close of Business on the earlier of (i) the tenth day
following the Stock Acquisition Date (subject to extension by the Company as
provided in Section 27 hereof) or (ii) the Final Expiration Date, at a
redemption price of $.001 per Right, subject to adjustments to reflect any stock
split, stock dividend or similar transaction occurring after the date hereof as
provided in subsection (c) below (the "Redemption Price"); provided, however,
the Company may redeem the Rights only if at the time of the action of the Board
there are then in office not less than two Continuing Directors and such
redemption is approved by a majority of the Continuing Directors then in office.
Notwithstanding anything contained in this Agreement to the contrary, the Rights
shall not be exercisable pursuant to Section 11(a)(ii) prior to the expiration
of the Company's right of redemption hereunder.
(b) Immediately upon the Board's action ordering the redemption of rights
pursuant to paragraph (a) of this Section 23, and without any further action and
without any notice, the right to exercise the Rights will terminate and the only
right thereafter of the holders of Rights shall be to receive the Redemption
Price. Within ten (10) days after the effective time of the action of the Board
ordering the redemption of the Rights, the Company shall give notice of such
redemption to the holders of the then outstanding Rights by mailing such notice
to all such holders at their last addresses as they appear upon the registry
books of the Rights Agent, or prior to the Distribution Date, on the registry
books of the transfer agent for the Common Stock. Any notice which is mailed in
the manner herein provided shall be deemed given, whether or not the holder
receives such notice. Each notice of redemption will state the method by which
payment of the Redemption Price will be made. At the option of the Board, the
Redemption Price may be paid in cash to each Rights holder or by the issuance of
shares (and, at the Company's election pursuant to Section 14(b) hereof, cash or
depositary receipts in lieu of fractions of shares other than fractions which
are integral multiples of one one-hundredth (1/100) of a share or, if a Right
shall then be exercisable for a fraction other than one one-hundredth of a
share, integral multiples of that fraction) of Preferred Stock having a Fair
Market Value equal to such cash payment.
(c) In the event the Company shall at any time after the date of this
Rights Agreement (A) pay any dividend on Common Stock in shares of Common Stock,
(B) subdivide or split the outstanding shares of Common Stock into a greater
number of shares or (C) combine or consolidate the outstanding shares of Common
Stock into a smaller number of shares or effect a reverse split of the
outstanding shares of Common Stock, then, and in each such event, the Redemption
Price shall be adjusted so that the Redemption Price after such event shall
equal the Redemption Price immediately prior to such event multiplied by a
fraction, the numerator of which is the number of shares of Common Stock
outstanding immediately prior to such event and the denominator of which is the
number of shares of Common Stock outstanding immediately after such event.
Section 24. Exchange.
(a) The Board may, at its option (provided at the time of such election by
the Board there are then in office not less than two Continuing Directors and
such election is approved by a majority of the Continuing Directors then in
office), at any time after any Person becomes an Acquiring Person, exchange all
or part of the then outstanding and exercisable Rights (excluding Rights that
have become void pursuant to the provisions of Section 11(a)(ii) hereof) for
shares of Common Stock, with each Right to be exchanged for such number of
shares of Common Stock as shall equal the result obtained by dividing (A) the
Exercise Price by (B) the current Fair Market Value of a share of the Common
Stock (determined pursuant to Section 11(d) hereof on the first occurrence of
the event described in Section 11(a) (ii)) appropriately adjusted to reflect any
stock split, stock dividend or a similar transaction occurring thereafter (such
exchange ratio is hereinafter referred to as the "Exchange Ratio").
Notwithstanding the foregoing, the Board shall not be empowered to effect such
exchange at any time after any Person (other than an Exempt Person), together
with all Affiliates and Associates of such Person, becomes the Beneficial Owner
of shares of Common Stock aggregating fifty percent (50%) or more of the shares
of Common Stock then outstanding.
(b) Immediately upon the Board's action ordering the exchange of any Rights
pursuant to paragraph (a) of this Section 24 and without any further action and
without any notice, the right to exercise such Rights shall terminate and the
only right of a holder of such rights thereafter shall be to receive that number
of shares of Common Stock equal to the number of such Rights held by such holder
multiplied by the Exchange Ratio. The Company shall promptly give public notice
of any such exchange; provided, however, that the failure to give, or any defect
in, such notice shall not affect the validity of such an exchange. The Company
promptly shall mail a notice of any such exchange to all of the registered
holders of the Rights at their last addresses as they appear upon the registry
books of the Rights Agent. Any notice mailed in accordance herewith shall be
deemed given, whether or not the holder receives the notice. Each notice of
exchange will state the method by which the exchange of the Common Stock for
Rights will be effected and, in the event of any partial exchange, the number of
Rights which will be exchanged. Any partial exchange shall be effected pro rata
based on the number of Rights (other than Rights that have become void pursuant
to the provisions of Section 11(a)(ii) hereof) held by each registered Rights
holder.
(c) In the event that there are insufficient shares of Common Stock
authorized but unissued to permit any exchange of Rights as contemplated in
accordance with this Section 24, the Company shall take all such action as may
be necessary to authorize additional shares of Common Stock for issuance upon
exchange of the Rights. In the event the Company shall, after good faith effort,
be unable to take such action to authorize such additional number of shares of
Common Stock, the Company shall substitute, for each share of Common Stock that
would otherwise be issuable upon the exchange of Rights, a number of shares of
Preferred Stock or a fraction thereof so that the Fair Market Value of one share
of Preferred Stock multiplied by such number or fraction is equal to the Fair
Market Value of one share of Common Stock as of the date of issuance of such
shares of Preferred Stock or fraction thereof.
(d) The Company shall not be required to issue fractions of shares of
Common Stock or to distribute certificates which evidence fractional shares of
Common Stock. In lieu of fractional shares of Common Stock, the Company shall
pay to the registered holders of the Right certificates, with regard to which
such fractional shares of Common Stock would otherwise be issuable, an amount in
cash equal to the same fraction of the Fair Market Value of a whole share of
Common Stock. For purposes of this paragraph (d), the Fair Market Value of a
whole share of Common Stock shall be the closing price (as defined in Section
11(d)) of a share of Common Stock for the Trading Day immediately prior to the
date of exchange pursuant to this Section 24.
Section 25. Notice of Proposed Actions.
(a) In case the Company, after the Distribution Date, shall propose to (i)
effect any of the transactions referred to in Section 11(a)(i) or 11(i), or (ii)
offer to the holders of record of its Common Stock options, warrants, or other
rights to subscribe for or to purchase shares of Common Stock (including any
security convertible into or exchangeable for Common Stock) or shares of stock
of any class or any other securities, options, warrants, convertible or
exchangeable securities or other rights, or (iii) effect any reclassification of
its Preferred Stock or Common Stock or any recapitalization or reorganization of
the Company, or (iv) effect any consolidation, merger with or into, exchange or
any sale or other transfer (or to permit one or more of its Subsidiaries to
effect any sale or other transfer), in one or more transactions, of more than
fifty percent (50%) of the assets or earning power of the Company and its
Subsidiaries (taken as a whole) to, any other Person or Persons, or (v) effect
the liquidation, dissolution or winding up of the Company, then, in each such
case, the Company shall give to each holder of record of a Right Certificate, in
accordance with Section 26 hereof, notice of such proposed action, which shall
specify the record date for the purposes of such transaction referred to in
Section 11(a)(i) or 11(i) or such dividend or distribution, or the date on which
such reclassification, recapitalization, reorganization, consolidation, merger,
sale or transfer of assets, liquidation, dissolution, or winding up is to take
place and the record date for determining participation therein by the holders
of record of Common Stock or Preferred Stock, if any such date is to be fixed,
and such notice shall be so given in the case of any action covered by clause
(i) or (ii) above at least ten (10) days prior to the Record Date for
determining holders of record of the Preferred Stock for purposes of such
action, and in the case of any such other action, at least ten (10) days prior
to the date of the taking of such proposed action or the date of participation
therein by the holders of record of Common Stock or Preferred Stock, whichever
shall be the earlier. The failure to give notice required by this Section 25 or
any defect therein shall not affect the legality or validity of the action taken
by the Company or the vote upon any such action.
(b) In case any of the transactions referred to in Section 11(a)(i), 11(i)
or 13 of this Rights Agreement are proposed, then, in any such case, the Company
shall give to each holder of Rights, in accordance with Section 26 hereof,
notice of the proposal of such transaction at least ten (10) days prior to
consummating such transaction. Such notice shall specify the proposed event and
the consequences of the event to holders of Rights under Section 11(a)(i), 11(i)
or 13 hereof, as the case may be, and upon consummating such transaction, shall
similarly give notice thereof to each holder of Rights.
Section 26. Notices. Notices or demands authorized by this Rights Agreement
to be given or made by the Rights Agent or by the holder of record of any Right
Certificate or Right to or on the Company shall be sufficiently given or made if
sent by first class mail, postage prepaid, addressed (until another address is
filed in writing with the Rights Agent) as follows:
HEALTH RISK MANAGEMENT, INC.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
Subject to the provisions of Section 21 hereof, any notice or demand
authorized by this Rights Agreement to be given or made by the Company or by the
holder of record of any Right Certificate or Right to or on the Rights Agent
shall be sufficiently given or made if sent by first class mail, postage
prepaid, addressed (until another address is filed in writing with the Company)
as follows:
NORWEST BANK, MINNESOTA, N.A.
Attention: Shareowner Services
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇
Notices or demands authorized by this Rights Agreement to be given or made
by the Company or the Rights Agent to the holder of record of any Right
Certificate or Right shall be sufficiently given or made if sent by first-class
mail, postage prepaid, addressed to such holder at the address of such holder as
shown on the registry books of the Company.
Section 27. Supplements and Amendments. For as long as the Rights are then
redeemable and except as provided in the last sentence of this Section 27, the
Company may, in its sole and absolute discretion, and the Rights Agent shall if
the Company so directs, supplement or amend any provision of this Rights
Agreement without the approval of any holders of the Rights. At any time when
the Rights are then redeemable and except as provided in the last sentence of
this Section 27, the Company may upon approval by the Board (provided at the
time of such approval by the Board there are then in office not less than two
Continuing Directors and such approval is joined in by a majority of the
Continuing Directors then in office), and the Rights Agent shall if the Company
so directs, supplement or amend this Rights Agreement without the approval of
any holders of the Right Certificates (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 extend the Final
Expiration Date or the period in which the Company may redeem the Rights, or
(iv) to change or supplement the provisions hereunder in any manner which the
Company may deem necessary or desirable, provided that no such supplement or
amendment pursuant to this clause shall materially adversely affect the interest
of the holders of the Right Certificates. Upon the delivery of a certificate
from an appropriate officer of the Company which states that the proposed
supplement or amendment is in compliance with the terms of this Section 27, the
Rights Agent shall execute such supplement or amendment. Notwithstanding
anything contained in this Rights Agreement to the contrary, no supplement or
amendment shall be made which changes the Redemption Price, and supplements or
amendments may be made after the time that any Person becomes an Acquiring
Person (other than pursuant to a Qualifying Tender Offer) only if at the time of
the action of the Board approving such supplement or amendment there are then in
office not less than two Continuing Directors and such supplement or amendment
is approved by a majority of the Continuing Directors then in office.
Section 28. Successors. All the covenants and provisions of this Rights
Agreement by or for the benefit of the Company or the Rights Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder.
Section 29. Benefits of this Rights Agreement. Nothing in this Rights
Agreement shall be construed to give to any Person other than the Company, the
Rights Agent and the registered holders of the Right Certificates (and, prior to
the Distribution Date, the holders of Common Stock in their capacity as holders
of the Rights) any legal or equitable right, remedy or claim under this Rights
Agreement; but this Rights Agreement shall be for the sole and exclusive benefit
of the Company, the Rights Agent and the registered holders of the Right
Certificates (and, prior to the Distribution Date, the Common Stock).
Section 30. Severability. If any term, provision, covenant or restriction
of this Rights 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 Rights Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.
Section 31. Governing Law. This Rights Agreement and each Right Certificate
issued hereunder shall be deemed to be a contract made under the laws of the
State of Minnesota and for all purposes shall be governed by and construed and
enforced in accordance with the laws of such state applicable to contracts to be
made and performed entirely within such state.
Section 32. Counterparts. This Rights Agreement may be executed in any
number of counterparts and each of such counterparts shall for all purposes be
deemed to be an original, and all such counterparts shall together constitute
but one and the same instrument.
Section 33. Descriptive Headings. Descriptive headings of the several
Sections of this Rights Agreement are inserted for convenience only and shall
not control or affect the meaning or construction of any of the provisions
hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Rights Agreement to
be duly executed, all as of the day and year first above written.
HEALTH RISK MANAGEMENT, INC.
By:
Its:
NORWEST BANK, MINNESOTA, N.A.
By:
Its:
Exhibits:
A - Certificate of Designations of Series A Preferred Stock
B - Summary of Rights to Purchase Shares of Series A Preferred Stock
C - Form of Right Certificate
EXHIBIT A
CERTIFICATE OF DESIGNATIONS
OF
SERIES A PREFERRED STOCK
OF
HEALTH RISK MANAGEMENT, INC.
(Pursuant to Chapter 302A of the
Minnesota Business Corporation Act)
Health Risk Management, Inc., a corporation organized and existing under
the Minnesota Business Corporation Act (hereinafter called the "Company"),
hereby certifies that the following resolution was adopted by the Board of
Directors of the Company as required by Section 302A.239 of the Minnesota
Business Corporation Act at a meeting duly called and held on April 4, 1997:
RESOLVED, that, pursuant to the authority granted to and vested in the
Board of Directors of the Company (hereinafter called the "Board of Directors"
or the "Board") in accordance with the provisions of the Amended and Restated
Articles of Incorporation, as amended to date (hereinafter called the "Articles
of Incorporation"), the Board of Directors hereby creates a series of Preferred
Stock, par value $.01 per share (the "Preferred Stock"), of the Company and
hereby states the designation and number of shares, and fixes the relative
rights, preferences, and limitations thereof as follows:
Series A Preferred Stock:
Section 1. Designation and Amount. The shares of such series shall be
designated as "Series A Preferred Stock" (the "Series A Preferred Stock"), and
the number of shares constituting the Series A Preferred Stock shall be Three
Hundred Thousand (300,000). Such number of shares may be increased or decreased
by resolution of the Board of Directors; provided, that, no decrease shall
reduce the number of shares of Series A Preferred Stock to a number less than
the number of shares then outstanding plus the number of shares reserved for
issuance upon the exercise of outstanding options, rights or warrants or upon
the conversion of any outstanding securities issued by the Company convertible
into Series A Preferred Stock.
Section 2. Dividends and Distributions.
(A) Subject to the rights of the holders of any shares of any series
of Preferred Stock, par value $.01 per share (the "Preferred Stock"), of
the Company or Preferred Stock (or any similar stock) ranking prior and
superior to the Series A Preferred Stock with respect to dividends, the
holders of shares of Series A Preferred Stock, in preference to the holders
of Common Stock, par value $.01 per share (the "Common Stock"), of the
Company, and of any other junior 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 first day of
March, June, September and December in each year (each such date being
referred to herein as a "Quarterly Dividend Payment Date"), commencing on
the first Quarterly Dividend Payment Date after the first issuance of a
share or fraction of a share of Series A Preferred Stock, in an amount per
share (rounded to the nearest cent) equal to the greater of (a) $1 or (b)
subject to the provision for adjustment hereinafter set forth, 100 times
(as adjusted, the "Dividend Multiple") 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 since the immediately preceding Quarterly
Dividend Payment Date or, with respect to the first Quarterly Dividend
Payment Date, since the first issuance of any share or fraction of a share
of Series A Preferred Stock. In the event the Company shall at any time
declare or pay any dividend on the Common Stock payable in shares of Common
Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise) into
a greater or lesser number of shares of Common Stock, then in each such
case the Dividend Multiple 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 Company shall declare a dividend or distribution on the Series
A Preferred Stock as provided in paragraph (A) of this Section immediately
after it declares a dividend or distribution on the Common Stock (other
than a dividend payable in shares of Common Stock); provided, that, in the
event no dividend or distribution shall have been declared on the Common
Stock during the period between any Quarterly Dividend Payment Date and the
next subsequent Quarterly Dividend Payment Date, a dividend of $1 per share
on the Series A 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 Preferred Stock from the Quarterly Dividend Payment Date
next preceding the date of issue of such shares, 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 the
determination of holders of shares of Series A Preferred Stock entitled to
receive a quarterly dividend and before such Quarterly Dividend Payment
Date, in either of which events such dividends shall begin to accrue and be
cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid
dividends shall not bear interest. Dividends paid on the shares of Series A
Preferred Stock in an amount less than the total amount of such dividends
at the time accrued and payable on such shares shall be allocated pro rata
on a share-by-share basis among all such shares at the time outstanding.
The Board of Directors may fix a record date for the determination of
holders of shares of Series A Preferred Stock entitled to receive payment
of a dividend or distribution declared thereon, which record date shall be
not more than sixty (60) days prior to the date fixed for the payment
thereof.
Section 3. Voting Rights. The holders of shares of Series A Preferred Stock
shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth,
each share of Series A Preferred Stock shall entitle the holder thereof to
100 votes (as adjusted, the "Vote Multiple") on all matters submitted to a
vote of the stockholders of the Company. In the event the Company shall at
any time declare or pay any dividend on the Common Stock payable in shares
of Common Stock, or effect a subdivision or combination or consolidation of
the outstanding shares of Common Stock (by reclassification or otherwise)
into a greater or lesser number of shares of Common Stock, then in each
such case the Vote Multiple shall be adjusted by multiplying such number by
a fraction, the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding immediately
prior to such event.
(B) Except as otherwise provided in Section 10 hereof, in any other
Certificate of Designations creating a series of Preferred Stock or any
similar stock, or by law, the holders of shares of Series A Preferred Stock
and the holders of shares of Common Stock and any other capital stock of
the Company having general voting rights shall vote together as one class
on all matters submitted to a vote of stockholders of the Company.
(C) Except as set forth herein, or as otherwise provided by law,
holders of Series A Preferred Stock shall have no special voting rights and
their consent shall not be required (except to the extent they are entitled
to vote with holders of Common Stock as set forth herein) for taking any
corporate action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Preferred Stock as provided in Section 2 are in
arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series A Preferred
Stock outstanding shall have been paid in full, the Company shall not:
(i) declare or pay dividends, or make any other distributions, on
any shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred
Stock;
(ii) declare or pay dividends, or make any other distributions,
on any shares of stock ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the Series A
Preferred Stock, except dividends paid ratably on the Series A
Preferred Stock and all such parity stock on which dividends are
payable or in arrears in proportion to the total amounts to which the
holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration
shares of any stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred
Stock, provided that the Company may at any time redeem, purchase or
otherwise acquire shares of any such junior stock in exchange for
shares of any stock of the Company ranking junior (as to dividends and
upon dissolution, liquidation and winding up) to the Series A
Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for consideration
any shares of Series A Preferred Stock, or any shares of stock ranking
on a parity (either as to dividends or upon liquidation, dissolution
or winding up) with the Series A Preferred Stock, except in accordance
with a purchase offer made in writing or by publication (as determined
by the Board) to all holders of such shares upon such terms as the
Board, after consideration of the respective annual dividend rates and
other relative rights and preferences of the respective series and
classes, shall determine in good faith will result in fair and
equitable treatment among the respective series or classes.
(B) The Company shall not permit any subsidiary of the Company to purchase
or otherwise acquire for consideration any shares of stock of the Company unless
the Company could, under paragraph (A) of this Section 4, purchase or otherwise
acquire such shares at such time and in such manner.
Section 5. Reacquired Shares. Any shares of Series A Preferred Stock
purchased or otherwise acquired by the Company 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 Preferred
Stock and may be reissued as part of a new series of Preferred Stock subject to
the conditions and restrictions on issuance set forth herein, in the Articles of
Incorporation, or in any other Certificate of Designations creating a series of
Preferred Stock or any similar stock or as otherwise required by law.
Section 6. Liquidation, Dissolution or Winding Up. Upon any liquidation,
dissolution or winding up of the Company, no distribution shall be made (A) to
the holders of shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred Stock unless,
prior thereto, the holders of shares of Series A Preferred Stock shall have
received the greater of (i) $100 per share, plus an amount equal to accrued and
unpaid dividends and distributions thereon, whether or not declared, to the date
of such payment, or (ii) subject to the provision for adjustment hereinafter set
forth, 100 times (as adjusted, the "Liquidation Preference Multiple") the
aggregate amount to be distributed per share to holders of shares of Common
Stock, or (B) to the holders of shares of stock ranking on a parity (either as
to dividends or upon liquidation, dissolution or winding up) with the Series A
Preferred Stock, except distributions made ratably on the Series A Preferred
Stock and all such parity stock in proportion to the total amounts to which the
holders of all such shares are entitled upon such liquidation, dissolution or
winding up. In the event the Company shall at any time declare or pay any
dividend on the Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding shares of Common
Stock (by reclassification or otherwise) into a greater or lesser number of
shares of Common Stock, then in each such case the Liquidation Preference
Multiple shall be adjusted by multiplying such amount by a fraction the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
Section 7. Consolidation, Merger, Etc. In case the Company shall enter into
any consolidation, merger, statutory exchange combination or other transaction
in which the shares of Common Stock are exchanged for or changed into other
stock or securities, cash and/or any other property, then in any such case each
share of Series A Preferred Stock shall at the same time be similarly exchanged
or changed into an amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 100 times (as adjusted, the "Exchange Multiple")
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 Company shall at any time
declare or pay any dividend on the Common Stock payable in shares of Common
Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise) into a
greater or lesser number of shares of Common Stock, then in each such case the
Exchange Multiple shall be adjusted by multiplying such amount by a fraction,
the numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
Section 8. No Redemption. The shares of Series A Preferred Stock shall not
be redeemable.
Section 9. Rank. The Series A Preferred Stock shall rank, with respect to
the payment of dividends and the distribution of assets, junior to all series of
any other class of Preferred Stock hereafter issued that specifically provide
that they shall rank senior to the Series A Preferred Stock.
Section 10. Amendment. If any proposed amendment to the Articles of
Incorporation or this Certificate of Designation would alter or change the
preferences, special rights or powers given to the Series A Preferred Stock so
as to affect the Series A Preferred Stock adversely, or would authorize the
issuance of a class or classes of stock having preferences or rights with
respect to dividends or dissolutions or the distribution of assets that would be
superior to the preferences or rights of the Series A Preferred Stock, then the
holders of the Series A Preferred Stock shall be entitled to vote as a series
upon such amendment, and the affirmative vote of two-thirds of the outstanding
shares of Series A Preferred Stock shall be necessary to the adoption thereof,
in addition to such other vote as may be required by the Minnesota Business
Corporation Act.
Section 11. Fractional Shares. Series A 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 Preferred Stock.
I certify that I am authorized to execute this Certificate of Designations,
and I further certify that I understand that by signing this Certificate I am
subject to the penalties of perjury as set forth in Minnesota Statutes, Section
609.48, as if I had signed this Certificate under oath.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
EXHIBIT B
SUMMARY OF RIGHTS TO PURCHASE
SHARES OF SERIES A PREFERRED STOCK
On April 4, 1997, the Board of Directors of Health Risk Management, Inc.
(the "Company") declared a dividend of one preferred stock purchase right (a
"Right") for each outstanding share of common stock, par value $.01 per share
(the "Common Stock"), of the Company. The dividend is payable on April 18, 1997
(the "Record Date") to the stockholders of record on that date. Each Right
entitles the registered holder to purchase from the Company one one-hundredth of
a share of Series A Preferred Stock, par value $.01 per share (the "Preferred
Stock"), of the Company at a price of $50.00 per one one-hundredth of a
Preferred Share (the "Exercise Price"), subject to adjustment. The description
and terms of the Rights are set forth in the Rights Agreement dated as of April
4, 1997 (the "Rights Agreement") between the Company and Norwest Bank Minnesota,
N.A. as Rights Agent (the "Rights Agent").
Until the earlier of (i) 10 days following a public announcement by the
Company or a person or group of affiliated or associated persons (an "Acquiring
Person") that such an Acquiring Person has acquired beneficial ownership of 15%
or more of the outstanding Common Stock or (ii) 10 business days (or such later
date as may be determined by action of the Board of Directors prior to such time
as any person or group of affiliated persons becomes an Acquiring Person)
following the commencement of, or announcement of an intention to make, a tender
offer or exchange offer the consummation of which would result in the beneficial
ownership by a person or group of 15% or more of the outstanding Common Stock
(the earlier of such dates being called the "Distribution Date"), the Rights
will be evidenced, with respect to any of the Common Stock certificates
outstanding as of the Record Date, by such Common Stock certificate with a copy
of this Summary of Rights attached thereto.
The Rights Agreement provides that, until the Distribution Date (or earlier
redemption or expiration of the Rights), the Rights will be transferable with
and only with the Common Stock. Until the Distribution Date (or earlier
redemption or expiration of the Rights), new Common Stock certificates issued
after the Record Date upon transfer or new issuance of shares of Common Stock
will contain a notation incorporating the Rights Agreement by reference. Until
the Distribution Date (or earlier redemption or expiration of the Rights), the
surrender for transfer of any certificates for shares of Common Stock
outstanding as of the Record Date, even without such notation or a copy of this
Summary of Rights being attached thereto, will also constitute the transfer of
the Rights associated with the shares of Common Stock represented by such
certificate. As soon as practicable following the Distribution Date, separate
certificates evidencing the Rights ("Right Certificates") will be mailed to
holders of record of the Common Stock as of the close of business on the
Distribution Date and such separate Right Certificates alone will evidence the
Rights.
The Rights are not exercisable until the Distribution Date. The Rights will
expire on April 4, 2007 (the "Final Expiration Date"), unless the Final
Expiration Date is extended or unless the Rights are earlier redeemed by the
Company, as described below.
The Exercise Price payable, and/or the number of shares of Preferred Stock
or other securities or property issuable, upon exercise of the Rights are
subject to adjustment from time to time to prevent dilution (i) in the event of
a stock dividend on, or a subdivision, combination or reclassification of, or
certain distributions on, the Common Stock, (ii) the issuance to holders of
Preferred Stock of certain rights or warrants to subscribe for or purchase
Preferred Stock at a price, or securities convertible into Preferred Stock with
a conversion price, less than the then current market price of the Preferred
Stock or (iii) upon the distribution to holders of the Preferred Stock of
evidences of indebtedness or assets (other than regular periodic cash dividends)
or of subscription rights or warrants.
Preferred Stock purchasable upon exercise of the Rights will not be
redeemable. Each share of Preferred Stock will be entitled to a minimum
preferential quarterly dividend payment of $1 per share but will be entitled to
an aggregate dividend of 100 times the dividend declared per share of Common
Stock. In the event of liquidation, the holders of the Preferred Stock will be
entitled to a minimum preferential liquidation payment of $100 per share but
will be entitled to an aggregate payment of 100 times the payment made per share
of Common Stock. Each share of Preferred Stock will have 100 votes, voting
together with the Common Stock. Finally, in the event of any merger,
consolidation or other transaction in which Common Stock is exchanged, each
share of Preferred Stock will be entitled to receive 100 times the amount
received per share of Common Stock. These rights are protected by customary
anti-dilution provisions.
Because of the nature of the Preferred Stock's dividend, liquidation and
voting rights, the value of the one one-hundredth of a share of Preferred Stock
purchasable upon exercise of each Right should approximate the value of one
share of Common Stock.
In the event that any person or group of affiliated or associated persons
becomes an Acquiring Person, proper provision shall be made so that each holder
of a Right, other than Rights beneficially owned by the Acquiring Person (which
will thereafter be void), will thereafter have the right to receive upon
exercise that number of shares of Preferred Stock having a market value of two
(2) times the Exercise Price of the Right. In the event that, after a person or
group has become an Acquiring Person, the Company is acquired in a merger or
other business combination transaction or fifty percent (50%) or more of its
consolidated assets or earning power are sold, proper provision will be made so
that each registered holder of a Right will thereafter have the right to
receive, upon the exercise thereof at the then current Exercise Price of the
Right, that number of shares of common stock of the acquiring company which at
the time of such transaction will have a market value of two (2) times the
Exercise Price of the Right.
At any time after any person or group becomes an Acquiring Person and prior
to the acquisition by such person or group of fifty percent (50%) or more of the
outstanding shares of Common Stock, the Board of Directors of the Company may
exchange the Rights (except the Rights owned by such person or group which will
have become void), in whole or in part, with each Right to be exchanged for the
number of shares of Common Stock as shall equal the result obtained by dividing
the then current Exercise Price by the then market value of a share of Common
Stock. This exchange ratio is subject to further adjustment to reflect any stock
splits, stock dividends or similar transactions occurring thereafter. If there
are insufficient shares of Common Stock authorized but unissued to permit the
Company to complete any exchange of the Rights, the Company may, under certain
circumstances, substitute for each share of Common Stock that would otherwise be
issued upon such exchange of the Rights, shares of Preferred Stock with market
value equal to the market value of the shares of Common Stock that would
otherwise be issuable upon such exchange of the Rights.
No fractional shares of Preferred Stock will be issued (other than
fractions which are integral multiples of one one-hundredth of a share of
Preferred Stock or, if a Right shall then be exercisable for a fraction other
than one one-hundredth of a share, integral multiples of that fraction, which in
either case may, at the election of the Company, be evidenced by depositary
receipts) and in lieu thereof, an adjustment in cash will be made based on the
fair market value of the shares of Preferred Stock on the date of exercise.
At any time prior to ten days (subject to extension by the Board of
Directors of the Company) after the time an Acquiring Person becomes such, the
Board of Directors may redeem the Rights in whole, but not in part, at a price
of $.001 per Right, subject to adjustment for stock splits, stock dividends or
similar transactions, (the "Redemption Price"). The redemption of the Rights may
be made effective at such time, on such basis and with such conditions as the
Board of Directors in its sole discretion may establish. The right to exercise
the Rights will terminate immediately upon any redemption of the Rights, and the
only right of the holders of Rights will be to receive the Redemption Price.
The terms of the Rights may be amended by the Board of Directors of the
Company without the consent of the holders of the Rights.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company, including, without limitation, the right
to vote or to receive dividends.
A copy of the Rights Agreement has been filed with the Securities and
Exchange Commission as an exhibit to a Registration Statement on Form 8-A dated
April 7, 1997. A copy of the Rights Agreement is available free of charge from
the Company. This summary description of the Rights does not purport to be
complete and is qualified in its entirety by reference to the Rights Agreement,
which is hereby incorporated herein by reference.
EXHIBIT C
[Form of Right Certificate]
Certificate No. R-_______ _______ Rights
NOT EXERCISABLE AFTER APRIL 4, 2007 OR EARLIER IF REDEEMED BY THE COMPANY.
THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT $.001 PER
RIGHT (SUBJECT TO ADJUSTMENT) ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT.
UNDER CERTAIN CIRCUMSTANCES SET FORTH IN THE RIGHTS AGREEMENT, RIGHTS THAT ARE
BENEFICIALLY OWNED BY, OR WERE ACQUIRED FROM, AN ACQUIRING PERSON OR AN
AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE
RIGHTS AGREEMENT) SHALL BECOME NULL AND VOID.
Right Certificate
HEALTH RISK MANAGEMENT, INC.
This certifies that , or registered assigns, is the registered owner of the
number of Rights set forth above, each of which entitle the holder to thereof,
subject to the terms, provisions and conditions of the Rights Agreement, dated
as of April 4, 1997 (the "Rights Agreement"), between HEALTH RISK MANAGEMENT,
INC., a Minnesota corporation (the "Company"), and NORWEST BANK MINNESOTA, N.A.
(the "Rights Agent"), to purchase from the Company at any time after the
Distribution Date (as defined in the Rights Agreement) and prior to 5:00 P.M.
(Minneapolis time) on April 4, 2007 at the office or offices of the Rights Agent
designated for such purpose, or its successors as Rights Agent, one-hundredth
(1/100) of a fully paid, non-assessable share of Series A Preferred Stock (the
"Preferred Stock") of the Company, at a purchase price of $50.00 per
one-hundredth (1/100) of a share (the "Exercise Price"), upon presentation and
surrender of this Right Certificate with the Form of Election to Purchase and
related Certificate duly executed.
The number of Rights evidenced by this Right Certificate (and the number of
shares which may be purchased upon exercise thereof) set forth above, and the
Exercise Price set forth above, are the number and Exercise Price as of April 4,
1997, based on the Preferred Stock as constituted at such date. As provided in
the Rights Agreement, the Exercise Price and the number and kind of shares of
Preferred Stock or other securities which may be purchased 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 reference and made a part hereof and to which
Rights Agreement reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities hereunder of the
Rights Agent, the Company and the holders of the Right Certificates, which
limitations of rights include the temporary suspension of the exercisability of
such Rights under the specific circumstances set forth in the Rights Agreement.
Copies of the Rights Agreement are on file at the above-mentioned office of the
Rights Agent and are also available upon written request to the Rights Agent.
This Right Certificate, with or without other Right Certificates, upon
surrender at the principal office or offices of the Rights Agent designated for
such purpose, may be exchanged for another Right Certificate or Right
Certificates of like tenor and date evidencing Rights entitling the holder to
purchase a like aggregate number of one-hundredths of a share of Preferred Stock
as the Rights evidenced by the Right Certificate or Right Certificates
surrendered shall have entitled such holder to purchase. If this Right
Certificate shall be exercised in part, the holder shall be entitled to receive
upon surrender hereof another Right Certificate or Right Certificates for the
number of whole Rights unexercised.
Subject to the provisions of the Rights Agreement, the Rights evidenced by
this Certificate (i) may be redeemed by the Company at its option at a
redemption price of $.001 per Right, subject to adjustment as provided in the
Rights Agreement, at any time prior to the earlier of the close of business on
(A) the tenth day following the Stock Acquisition Date (such time period may be
extended pursuant to the Rights Agreement) or (B) the Final Expiration Date (as
defined in the Rights Agreement), and (ii) may, at the option of the Company, be
exchanged in whole or in part for Preferred Stock or shares of the Company's
Common Stock, par value $.01 per share.
No fractional shares of Preferred Stock will be issued upon the exercise of
any Right or Rights evidenced hereby (other than fractions which are integral
multiples of one one-hundredth of a share of Preferred Stock or, if a Right
shall then be exercisable for a fraction other than one one-hundredth of a
share, integral multiples of that fraction, which in either case may, at the
election of the Company, be evidenced by depositary receipts), but in lieu
thereof a cash payment will be made, as provided in the Rights Agreement.
No holder of this Right Certificate, as such, shall be entitled to vote or
receive dividends or be deemed for any purpose the holder of shares of Preferred
Stock or of any other securities of the Company which may at any time be
issuable on the exercise hereof, nor shall anything contained in the Rights
Agreement or herein be construed to confer upon the holder hereof, as such, any
of the rights of a stockholder of the Company or any right to vote for the
election of directors or upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate action, or, to
receive notice of meetings or other actions affecting stockholders (except as
provided in the Rights Agreement), or to receive dividends or subscription
rights, or otherwise, until the Right or Rights evidenced by this Right
Certificate shall have been exercised as provided in the Rights Agreement.
From and after the first occurrence of an event described in Section
11(a)(ii) of the Rights Agreement, any Rights evidenced by this Right
Certificate that are Beneficially Owned by an Acquiring Person, any Associate or
Affiliate of such Acquiring Person or certain transferees of any such Acquiring
Person (or of any such Associate or Affiliate) (as such terms are defined in the
Rights Agreement) shall be null and void without further action and any holder
of such Rights shall thereafter have no rights whatsoever with respect to such
Rights.
This Right Certificate shall not be valid or obligatory for any purpose
until it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the Company and
its corporate seal.
Dated as of _____________ ___, ______.
ATTEST: HEALTH RISK MANAGEMENT, INC.
By: By:
Its: Its:
Countersigned:
NORWEST BANK MINNESOTA, N.A.
as Rights Agent
By:
Authorized Signature
[Form of Reverse Side of Right Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Right Certificate.)
FOR VALUE RECEIVED _____________________________________________
hereby sells, assigns and transfers unto
_______________________________________________________________________________
(Please print name and address of transferee)
this Right Certificate, together with all right, title and interest therein, and
does hereby irrevocably constitute and appoint _________________ Attorney, to
transfer the within Right Certificate on the books of the within-named Company,
with full power of substitution.
THE UNDERSIGNED HEREBY CERTIFIES that the Rights evidenced by this Right
Certificate are not beneficially owned by, and were not acquired from, an
Acquiring Person or an Affiliate or Associate thereof (as defined in the Rights
Agreement).
Dated: _______________, ____
Signature
THE SIGNATURES TO THIS FORM OF ASSIGNMENT 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, AND MUST BE MEDALLION GUARANTEED BY AN
ELIGIBLE INSTITUTION AS DEFINED IN SECTION 240.17 Ad-15 OF THE SECURITIES
EXCHANGE ACT OF 1934.
[Form of Reverse Side of Right Certificate -- continued]
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to exercise
Rights represented by the Right Certificate)
To HEALTH RISK MANAGEMENT, INC.
The undersigned hereby irrevocably elects to exercise ___________ Rights
represented by this Right Certificate to purchase the Preferred Stock issuable
upon exercise of such Rights and requests that certificates for such Preferred
Stock be issued in the name of:
Please insert social security
or other identifying number ___________________________
-----------------------------------------------------------------
(Please print name and address)
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If such number of Rights shall not be all the Rights evidenced by this Right
Certificate, a new Right Certificate for the balance remaining of such
Rights shall be registered in the name of and delivered to:
-----------------------------------------------------------------
(Please print name and address)
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THE UNDERSIGNED HEREBY CERTIFIES that the Rights evidenced by this Right
Certificate are not beneficially owned by, and were not acquired from, an
Acquiring Person or an Affiliate or Associate thereof (as defined in the Rights
Agreement).
Dated: _______________, ______
Signature
THE SIGNATURES TO THIS FORM OF ELECTION TO PURCHASE 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, AND MUST BE MEDALLION
GUARANTEED BY AN ELIGIBLE INSTITUTION AS DEFINED IN SECTION 240.17 Ad-15 OF THE
SECURITIES EXCHANGE ACT OF 1934.