1
EXHIBIT 4.2
S&C Draft of April 21, 1999
STOCKHOLDER PROTECTION RIGHTS AGREEMENT
dated as of
April 5, 1999
between
THE ▇▇▇▇▇▇▇ ▇▇▇▇▇ GROUP, INC.
and
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.,
as Rights Agent
2
STOCKHOLDER PROTECTION RIGHTS AGREEMENT
Table of Contents
Page
ARTICLE I
DEFINITIONS
1.1 Definitions.....................................................................................2
ARTICLE II
THE RIGHTS
2.1 Legend on Common Share Certificates............................................................13
2.2 Exercise of Rights; Separation of Rights.......................................................14
2.3 Adjustments to Exercise Price; Number of Rights................................................17
2.4 Date on Which Exercise is Effective............................................................20
2.5 Execution, Authentication, Delivery and Dating of Rights Certificates..........................20
2.6 Registration, Registration of Transfer and Exchange............................................21
2.7 Mutilated, Destroyed, Lost and Stolen Rights Certificates......................................23
2.8 Persons Deemed Owners..........................................................................24
2.9 Delivery and Cancellation of Certificates......................................................24
2.10 Agreement of Rights Holders....................................................................25
ARTICLE III
ADJUSTMENTS TO THE RIGHTS IN THE EVENT OF CERTAIN TRANSACTIONS
3.1 Flip-in........................................................................................26
3.2 Flip-over......................................................................................30
ARTICLE IV
THE RIGHTS AGENT
4.1 General........................................................................................31
4.2 Merger or Consolidation or Change of Name of Rights Agent......................................33
4.3 Duties of Rights Agent.........................................................................34
4.4 Change of Rights Agent.........................................................................38
-i-
3
ARTICLE V
MISCELLANEOUS
5.1 Redemption.....................................................................................39
5.2 Expiration.....................................................................................40
5.3 Issuance of New Rights Certificates............................................................40
5.4 Supplements and Amendments.....................................................................41
5.5 Fractional Shares..............................................................................42
5.6 Rights of Action...............................................................................42
5.7 Holder of Rights Not Deemed a Stockholder......................................................43
5.8 Notice of Proposed Actions.....................................................................43
5.9 Notices........................................................................................44
5.10 Suspension of Exercisability...................................................................45
5.11 Costs of Enforcement...........................................................................45
5.12 Successors.....................................................................................45
5.13 Benefits of this Agreement.....................................................................46
5.14 Determination and Actions by the Board of Directors, etc.......................................46
5.15 Descriptive Headings...........................................................................46
5.16 GOVERNING LAW; EXCLUSIVE JURISDICTION..........................................................46
5.17 Counterparts...................................................................................48
5.18 Severability...................................................................................48
-
4
EXHIBITS
Exhibit A Form of Rights Certificate For Common Stock (Together with Form of Election to Exercise)
-iii-
5
Exhibit B Form of Rights Certificate For Nonvoting Common Stock (Together with Form of Election to Exercise)
Exhibit C Form of Certificate of Designation and Terms of Series A Participating Preferred Stock of
The ▇▇▇▇▇▇▇ Sachs Group, Inc.
Exhibit D Form of Certificate of Designation and Terms of Series B Participating Preferred
Stock of The ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group, Inc.
-iv-
6
STOCKHOLDER PROTECTION RIGHTS AGREEMENT
STOCKHOLDER PROTECTION RIGHTS AGREEMENT (as amended from time
to time, this "Agreement"), dated as of April 5, 1999, between The ▇▇▇▇▇▇▇ Sachs
Group, Inc., a Delaware corporation (the "Company"), and ChaseMellon Shareholder
Services, L.L.C., a New Jersey limited liability company, as Rights Agent (the
"Rights Agent", which term shall include any successor Rights Agent hereunder).
WITNESSETH:
WHEREAS, the Board of Directors of the Company has, as
provided in Section 2.3, authorized the issuance of one voting class right
("Voting Class Right") in respect of each share of Common Stock (as hereinafter
defined) and one nonvoting class right ("Nonvoting Class Right") in respect of
each share of Nonvoting Common Stock (as hereinafter defined) initially issued
by the Company or thereafter issued by the Company and prior to the Separation
Time (as hereinafter defined) and, to the extent provided in Section 5.3, each
share of Common Stock and Nonvoting Common Stock issued after the Separation
Time;
WHEREAS, subject to the terms and conditions hereof, each
Right (as hereinafter defined) entitles the holder thereof, after the Separation
Time, to purchase securities or assets of the Company (or, in certain cases,
securities of certain other entities) pursuant to the terms and subject to the
conditions set forth herein; and
WHEREAS, the Company desires to appoint the Rights Agent to
act on behalf of the Company, and the Rights Agent is willing so to act, in
connection with the
7
issuance, transfer, exchange and replacement of Rights Certificates (as
hereinafter defined), the exercise of Rights and other matters referred to
herein;
NOW THEREFORE, in consideration of the premises and the
respective agreements set forth herein, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. For purposes of this Agreement, the following
terms have the meanings indicated:
"Acquiring Person" shall mean any Person who is a Beneficial
Owner of 15% or more of the outstanding shares of Common Stock; provided,
however, that the term "Acquiring Person" shall not include any Person (i) who
shall become the Beneficial Owner of 15% or more of the outstanding shares of
Common Stock solely as a result of an acquisition by the Company of shares of
Common Stock, until such time hereafter or thereafter as any such Person shall
become the Beneficial Owner (other than by means of a stock dividend or stock
split) of any additional shares of Common Stock, (ii) who becomes the Beneficial
Owner of 15% or more of the outstanding shares of Common Stock but who acquired
Beneficial Ownership of shares of Common Stock without any plan or intention to
seek or affect control of the Company, if such Person promptly divests (without
exercising or retaining any power, including voting, with respect to such
shares), or promptly enters into an agreement with the Company satisfactory to
the Company, in its sole discretion, to divest sufficient Common Shares so that
such Person ceases to be the Beneficial Owner of 15% or
-2-
8
more of the outstanding shares of Common Stock or (iii) who Beneficially Owns
shares of Common Stock consisting solely of one or more of (A) shares of Common
Stock Beneficially Owned pursuant to the grant or exercise of an option granted
to such Person (an "Option Holder") by the Company in connection with an
agreement to merge with, or acquire, the Company entered into prior to a Flip-in
Date, (B) shares of Common Stock Beneficially Owned by such Option Holder or its
Affiliates or Associates at the time of grant of such option and (C) Common
Shares acquired by Affiliates or Associates of such Option Holder after the time
of such grant which, in the aggregate, amount to less than 1% of the outstanding
shares of Common Stock. In addition, the Company, The ▇▇▇▇▇▇▇ ▇▇▇▇▇ Corporation,
any Subsidiary of the Company and any employee stock ownership or other employee
benefit plan of the Company or a Subsidiary of the Company shall not be an
Acquiring Person (each an "Excluded Person").
"Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 under the Exchange Act, as such Rule is in
effect on the date of this Agreement; provided, however, that no Excluded Person
shall be considered an Affiliate or Associate of any Person who is a director,
officer, partner or trustee of such Excluded Person.
"Agreement" shall have the meaning set forth in the Preamble.
A Person shall be deemed the "Beneficial Owner", and to have
"Beneficial Ownership" of, and to "Beneficially Own", any securities as to which
such Person or any of such Person's Affiliates or Associates is or may be deemed
to be the beneficial owner of pursuant to Rule 13d-3 and 13d-5 under the
Exchange Act, as such Rules are in effect on the date of this Agreement, as well
as any securities as to which such Person or any of such
-3-
9
Person's Affiliates or Associates has the right to become Beneficial Owner
(whether such right is exercisable immediately or only after the passage of time
or the occurrence of conditions) pursuant to any agreement, arrangement or
understanding (other than customary agreements with and between underwriters and
selling group members with respect to a bona fide public offering of
securities), or upon the exercise of conversion rights, exchange rights, rights
(other than the Rights), warrants or options, or otherwise; provided, however,
that a Person shall not be deemed the "Beneficial Owner" or to have "Beneficial
Ownership" of, or to "Beneficially Own", any security (i) solely because such
security has been tendered pursuant to a tender or exchange offer made by such
Person or any of such Person's Affiliates or Associates until such tendered
security is accepted for payment or exchange, (ii) solely because such Person or
any of such Person's Affiliates or Associates has or shares the power to vote or
direct the voting of such security pursuant to a revocable proxy given in
response to a public proxy or consent solicitation made to more than ten holders
of shares of a class of stock of the Company registered under Section 12 of the
Exchange Act and pursuant to, and in accordance with, the applicable rules and
regulations under the Exchange Act, except if such power (or the arrangements
relating thereto) is then reportable under Item 6 of Schedule 13D under the
Exchange Act (or any similar provision of a comparable or successor report), or
(iii) solely because such Person (x) is a party to the Shareholders' Agreement
or is a member of the Shareholders' Committee or a designated proxy or attorney
in fact thereunder or (y) is a party to the Voting Agreements or is a designated
proxy or attorney in fact thereunder or because the vote of such Person together
with other Persons determines the manner in which shares of Common Stock are
voted pursuant to the Voting Agreements).
-4-
10
Notwithstanding the foregoing, no officer or director of the Company shall be
deemed to Beneficially Own any securities of any other Person by virtue of any
actions such officer or director takes in such capacity. For purposes of this
Agreement, in determining the percentage of the outstanding shares of Common
Stock with respect to which a Person is the Beneficial Owner, all shares as to
which such Person is deemed the Beneficial Owner shall be deemed outstanding.
"Business Day" shall mean any day other than a Saturday,
Sunday or a day on which banking institutions in The City of New York are
generally authorized or obligated by law or executive order to close.
"Close of Business" on any given date shall mean 5:00 p.m. New
York City time on such date or, if such date is not a Business Day, 5:00 p.m.
New York City time on the next succeeding Business Day.
"Common Shares" shall mean the shares of Nonvoting Common
Stock and Common Stock of the Company.
"Common Stock" shall mean the shares of Common Stock, par
value $0.01 per share, of the Company.
"Company" shall have the meaning set forth in the preamble.
"Election to Exercise" shall have the meaning set forth in
Section 2.2(d) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
"Exchange Ratio" shall have the meaning set forth in Section
3.1(c) hereof.
-5-
11
"Exchange Time" shall mean the time at which the right to
exercise the Rights shall terminate pursuant to Section 3.1(c) hereof.
"Excluded Person" shall have the meaning set forth in the
definition of Acquiring Person.
"Exercise Price" shall mean, as of any date, the price at
which a holder may purchase the securities issuable upon exercise of one whole
Right. Until adjustment thereof in accordance with the terms hereof, the
Exercise Price shall equal $250.00.
"Expansion Factor" shall have the meaning set forth in Section
2.3(a) hereof.
"Expiration Time" shall mean the earliest of (i) the Exchange
Time, (ii) the Redemption Time, (iii) the Close of Business on the tenth
anniversary of the date of this Agreement, unless extended by action of the
Board of Directors, and (iv) immediately prior to the effective time of a
consolidation, merger or share exchange of the Company (A) into another
corporation or (B) with another corporation in which the Company is the
surviving corporation but Common Shares are converted into cash and/or
securities of another corporation, in either case pursuant to an agreement
entered into by the Company prior to a Stock Acquisition Date.
"Flip-in Date" shall mean any Stock Acquisition Date or such
later date and time as the Board of Directors of the Company may from time to
time fix by resolution adopted prior to the public announcement by the Company
causing the Stock Acquisition Date to occur or, thereafter, prior to the Flip-in
Date that would otherwise have occurred.
"Flip-over Entity," for purposes of Section 3.2, shall mean
(i) in the case of a Flip-over Transaction or Event described in clause (i) of
the definition thereof, the Person
-6-
12
issuing any securities into which Common Shares are being converted or exchanged
and, if no such securities are being issued, the other party to such Flip-over
Transaction or Event and (ii) in the case of a Flip-over Transaction or Event
referred to in clause (ii) of the definition thereof, the Person receiving the
greatest portion of the (A) assets or (B) operating income or cash flow being
transferred in such Flip-over Transaction or Event, provided in all cases if
such Person is a subsidiary of a corporation, the parent corporation shall be
the Flip-Over Entity.
"Flip-over Stock" shall mean (i) with respect to the Voting
Class Rights, the capital stock (or similar equity interest) with the greatest
voting power in respect of the election of directors (or other persons similarly
responsible for direction of the business and affairs) of the Flip-Over Entity,
and (ii) with respect to the Nonvoting Class Rights, an equity security
identical to the Flip-over Stock described in clause (i) above with voting
provisions identical to that of the Nonvoting Common Stock.
"Flip-over Transaction or Event" shall mean a transaction or
series of transactions after a Flip-in Date in which, directly or indirectly,
(i) the Company shall consolidate or merge or participate in a statutory share
exchange with any other Person if, at the time of the consolidation, merger or
statutory share exchange or at the time the Company enters into any agreement
with respect to any such consolidation, merger or statutory share exchange, the
Acquiring Person controls the Board of Directors of the Company and either (A)
any term of or arrangement concerning the treatment of shares of Common Stock or
Nonvoting Common Stock, as the case may be, in such consolidation, merger or
statutory share exchange relating to the Acquiring Person is not identical to
the
-7-
13
terms and arrangements relating to other holders of the Common Stock or
Nonvoting Common Stock, as the case may be, or (B) the Person with whom the
transaction or series of transactions occurs is the Acquiring Person or an
Affiliate or Associate of the Acquiring Person or (ii) the Company shall sell or
otherwise transfer (or one or more of its Subsidiaries shall sell or otherwise
transfer) assets (A) aggregating more than 50% of the assets (measured by either
book value or fair market value) or (B) generating more than 50% of the
operating income or cash flow, of the Company and its Subsidiaries (taken as a
whole) to any Person (other than the Company or one or more of its wholly owned
Subsidiaries) or to two or more such Persons which are Affiliates or Associates
or otherwise acting in concert, if, at the time of the entry by the Company (or
any such Subsidiary) into an agreement with respect to such sale or transfer of
assets, the Acquiring Person controls the Board of Directors of the Company. An
Acquiring Person shall be deemed to control the Company's Board of Directors
when, following a Flip-in Date, the persons who were directors of the Company
(or persons nominated and/or appointed as directors by vote of a majority of
such persons) before the Stock Acquisition Date of such Acquiring Person shall
cease to constitute a majority of the Company's Board of Directors.
"Market Price" per share of any securities on any date shall
mean the average of the daily closing prices per share of such securities
(determined as described below) on each of the 20 consecutive Trading Days
through and including the Trading Day immediately preceding such date; provided,
however, that if any event described in Section 2.3 hereof, or any analogous
event, shall have caused the closing prices used to determine the Market Price
on any Trading Days during such period of 20 Trading Days not to be fully
comparable with
-8-
14
the closing price on such date, each such closing price so used shall be
appropriately adjusted in order to make it fully comparable with the closing
price on such date. The closing price per share of any securities on any date
shall be the last reported sale price, regular way, or, in case no such sale
takes place or is quoted on such date, the average of the closing bid and asked
prices, regular way, for each share of such securities, in either case as
reported in the principal consolidated transaction reporting system with respect
to securities listed or admitted to trading on the New York Stock Exchange, Inc.
or, if the securities are not listed or admitted to trading on the New York
Stock Exchange, Inc., as reported in the principal consolidated transaction
reporting system with respect to securities listed on the principal national
securities exchange on which the securities are listed or admitted to trading
or, if the securities are not listed or admitted to trading on any national
securities exchange, as reported by the National Association of Securities
Dealers, Inc. Automated Quotation System or such other system then in use, or,
if on any such date the securities are not listed or admitted to trading on any
national securities exchange or quoted by any such organization, the average of
the closing bid and asked prices as furnished by a professional market maker
(other than ▇▇▇▇▇▇▇, Sachs & Co.) making a market in the securities selected by
the Board of Directors of the Company; provided, however, that if on any such
date the securities are not listed or admitted to trading on a national
securities exchange or traded in the over-the-counter market, the closing price
per share of such securities on such date shall mean the fair value per share of
securities on such date as determined in good faith by the Board of Directors of
the Company, after consultation with a nationally recognized investment banking
firm other than ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., and set forth in a certificate delivered
to the
-9-
15
Rights Agent. For purposes of this Agreement, if the Nonvoting Common Stock is
not listed or admitted to trading on a national securities exchange or traded in
the over-the-counter market, the "Market Price" per share of the Nonvoting
Common Stock on any date shall be the same as the "Market Price" per share of
the Common Stock on such date.
"Nonvoting Class Right" shall have the meaning set forth in
the Recitals.
"Nonvoting Common Stock" shall mean the Nonvoting Common
Stock, par value $0.01 per share, of the Company.
"Option Holder" shall have the meaning set forth in the
definition of Acquiring Person.
"Person" shall mean any individual, firm, partnership, limited
liability company, association, group (as such term is used in Rule 13d-5 under
the Exchange Act, as such Rule is in effect on the date of this Agreement),
corporation or other entity; provided, however, that the Shareholders' Committee
formed pursuant to the Shareholders' Agreement and any group or association that
may exist or be deemed to exist as a result of entering into, or the operation
of, the Shareholders' Agreement or the Voting Agreements shall not be considered
a Person for purposes of this Agreement.
"Preferred Stock" shall mean in the case of the Voting Class
Rights, the Series A Participating Preferred Stock, par value $0.01 per share,
of the Company created by a Certificate of Designation and Terms in
substantially the form set forth in Exhibit C hereto appropriately completed,
and in the case of the Nonvoting Class Rights, the Series B Participating
Preferred Stock, par value $0.01 per share, of the Company created by a
-10-
16
Certificate of Designation and Terms in substantially the form set forth in
Exhibit D hereto appropriately completed.
"Plan of Incorporation" shall mean the Plan of Incorporation
of The ▇▇▇▇▇▇▇ Sachs Group, L.P., dated as of March 8, 1999, as currently in
effect or as the same may hereafter be amended.
"Redemption Price" shall mean an amount equal to one cent,
$0.01.
"Redemption Time" shall mean the time at which the right to
exercise the Rights shall terminate pursuant to Section 5.1 hereof.
"Right" shall mean in the case of the Common Stock, a Voting
Class Right, and in the case of the Nonvoting Common Stock, a Nonvoting Class
Right.
"Rights Agent" shall have the meaning set forth in the
Preamble.
"Rights Certificate" shall have the meaning set forth in
Section 2.2(c) hereof.
"Rights Register" shall have the meaning set forth in Section
2.6(a) hereof.
"SBCM" shall have the meaning set forth in the definition of
Voting Agreements.
"Separation Time" shall mean the Close of Business on the
earlier of (i) the tenth Business Day (or such later date as the Board of
Directors of the Company may from time to time fix by resolution adopted prior
to the Separation Time that would otherwise have occurred) after the date on
which any Person commences a tender or exchange offer which, if consummated,
would result in such Person's becoming an Acquiring Person and (ii) the Flip-in
Date; provided, that if any tender or exchange offer referred to in clause (i)
of this paragraph is cancelled, terminated or otherwise withdrawn prior to the
Separation Time without the purchase of any Common Shares in connection
therewith, such offer shall be deemed, for purposes of this paragraph, never to
have been made.
-11-
17
"Shareholders' Agreement" shall mean the Shareholders'
Agreement to be entered into among the Company and certain of its stockholders,
as the same may thereafter be amended, as contemplated by the Plan of
Incorporation.
"Stock Acquisition Date" shall mean the first date of public
announcement by the Company expressly stating that a Person has become an
Acquiring Person.
"Subsidiary" of any specified Person shall mean any
corporation or other entity of which a majority of the voting power of the
equity securities or a majority of the equity or membership interest is
Beneficially Owned, directly or indirectly, by such Person.
"Trading Day," when used with respect to any securities, shall
mean a day on which the New York Stock Exchange, Inc. is open for the
transaction of business or, if such securities are not listed or admitted to
trading on the New York Stock Exchange, Inc., a day on which the principal
national securities exchange on which such securities are listed or admitted to
trading is open for the transaction of business or, if such securities are not
listed or admitted to trading on any national securities exchange, a Business
Day.
"Voting Agreements" shall mean (i) the Voting Agreement, dated
as of _________, 1999, by and among [ ], on the one hand, and The Sumitomo
Bank, Limited, a corporation organized under the laws of Japan, and Sumitomo
Bank Capital Markets, Inc., a Delaware corporation ("SBCM"), on the other hand,
and (ii) the Voting Agreement, dated as of ________, 1999, by and among [ ],
on the one hand, and The Trustees of the Estate of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, a
private educational charitable trust organized under the laws of the State of
Hawaii, and Kamehameha Activities Association, a Hawaii non-profit corporation,
on the other hand.
-12-
18
"Voting Class Right" shall have the meaning set forth in the
Recitals.
ARTICLE II
THE RIGHTS
2.1 Legend on Common Share Certificates. Certificates for the
Common Shares issued after the date of this Agreement but prior to the
Separation Time shall evidence one Right for each Common Share represented
thereby and shall have impressed on, printed on, written on or otherwise affixed
to them the following legend (which legend may be modified as necessary on the
certificates for the Common Stock or Nonvoting Common Stock, as the case may
be, to reflect the application of this Agreement to the Common Stock or the
Nonvoting Common Stock, as the case may be):
Until the Separation Time (as defined in the Rights Agreement referred
to below), this certificate also evidences and entitles the holder
hereof to certain Rights as set forth in a Rights Agreement, dated as
of April 1999 (as such may be amended from time to time, the "Rights
Agreement"), between The ▇▇▇▇▇▇▇ Sachs Group, Inc. (the "Corporation")
and the Rights Agent named therein, the terms of which are hereby
incorporated herein by reference and a copy of which is on file at the
principal executive offices of the Corporation. Under certain
circumstances, as set forth in the Rights Agreement, such Rights may be
redeemed, may become exercisable for securities or assets of the
Corporation or securities of another entity, may be exchanged for
Common Shares or other securities or assets of the Corporation, may
expire, may become void (if they are "Beneficially Owned" by an
"Acquiring Person" or an Affiliate or Associate thereof, as such terms
are defined in the Rights Agreement, or by any transferee of any of the
foregoing) or may be evidenced by separate certificates and may no
longer be evidenced by this certificate. The Corporation will mail or
arrange for the mailing of a copy of the Rights Agreement to the holder
of this certificate without charge after the receipt of a written
request therefor.
If the Common Shares issued after the date of this Agreement
but prior to the Separation Time shall be uncertificated, the registration of
such Common Shares on the stock transfer books of the Company shall evidence one
Right for each Common Share represented thereby and the Company will mail to
every Person that holds such Common Shares a confirmation of the registration of
such Common Shares on the stock
-13-
19
transfer books of the Company, which confirmation will have impressed, printed,
written or stamped thereon or otherwise affixed thereto the above legend. The
Company will mail or arrange for the mailing of a copy of this Agreement to any
Person that holds Common Shares, as evidenced by the registration of the Common
Shares in the name of such Person on the stock transfer books of the Company,
without charge after the receipt of a written request therefor.
2.2 Exercise of Rights; Separation of Rights. (a) Subject to
Sections 3.1, 5.1 and 5.10 and subject to adjustment as herein set forth, each
Right will entitle the holder thereof, after the Separation Time and prior to
the Expiration Time, to purchase, for the Exercise Price, one one-hundredth of a
share of Preferred Stock.
(b) Until the Separation Time, (i) no Right may be exercised
and (ii) each Right will be evidenced by the certificate for the associated
Common Share (or, if the Common Shares shall be uncertificated, by the
registration of the associated Common Share on the stock transfer books of the
Company) and will be transferable only together with, and will be transferred by
a transfer of, such associated share.
(c) Subject to the terms and conditions hereof, after the
Separation Time and prior to the Expiration Time, the Rights (i) may be
exercised and (ii) may be transferred independent of the Common Shares. Promptly
following the Separation Time and receipt by the Rights Agent of notice thereof
as well as receipt of all other relevant information, the Rights Agent will mail
to each holder of record of a Common Share as of the Separation Time (other than
any Person whose Rights have become void pursuant to Section 3.1(b)), at such
holder's address as shown by the records of the Company (the
-14-
20
Company hereby agreeing to furnish copies of such records to the Rights Agent
for this purpose), (x) a certificate in substantially the form of Exhibit A
hereto, in the case of the Common Stock, or in substantially the form of Exhibit
B hereto, in the case of the Nonvoting Common Stock (in each case, a "Rights
Certificate"), appropriately completed, representing the number of Rights held
by such holder at the Separation Time and having such marks of identification or
designation and such legends, summaries or endorsements printed thereon as the
Company may deem appropriate which do not affect the duties or responsibilities
of the Rights Agent and as are not inconsistent with the provisions of this
Agreement, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any national
securities exchange or quotation system on which the Rights may from time to
time be listed or traded, or to conform to usage, and (y) a disclosure statement
describing the Rights.
(d) Subject to the terms and conditions hereof, Rights may be
exercised on any Business Day after the Separation Time and prior to the
Expiration Time by submitting to the Rights Agent the Rights Certificate
evidencing such Rights with an Election to Exercise (an "Election to Exercise")
substantially in the form attached to the Rights Certificate duly and properly
completed, accompanied by payment in cash, or by certified or official bank
check or money order payable to the order of the Company, of a sum equal to the
Exercise Price multiplied by the number of Rights being exercised and a sum
sufficient to cover any tax or charge which may be payable in respect of any
transfer involved in the transfer or delivery of the Rights Certificates or the
issuance or delivery of
-15-
21
certificates (or, if uncertificated, the registration on the stock transfer
books of the Company) for shares or depositary receipts (or both) in a name
other than that of the holder of the Rights being exercised.
(e) Upon receipt of a Rights Certificate, with an Election to
Exercise accompanied by payment as set forth in Section 2.2(d), and subject to
the terms and conditions hereof, the Rights Agent will thereupon promptly (i)(A)
requisition from a transfer agent stock certificates evidencing such number of
shares or other securities to be purchased or, in the case of uncertificated
shares or other securities, requisition from a transfer agent a notice setting
forth such number of shares or other securities to be purchased for which
registration will be made on the stock transfer books of the Company (the
Company hereby irrevocably authorizing its transfer agents to comply with all
such requisitions), and (B) if the Company elects pursuant to Section 5.5 not to
issue certificates (or effect registrations on the stock transfer books of the
Company) representing fractional shares, requisition from the depositary
selected by the Company depositary receipts representing the fractional shares
to be purchased or requisition from the Company the amount of cash to be paid in
lieu of fractional shares in accordance with Section 5.5 and (ii) after receipt
of such certificates, depositary receipts, notices and/or cash, deliver the same
to or upon the order of the registered holder of such Rights Certificate,
registered (in the case of certificates, depositary receipts or notices) in such
name or names as may be designated by such holder.
(f) In case the holder of any Rights shall exercise less than
all the Rights evidenced by such holder's Rights Certificate, a new Rights
Certificate evidencing
-16-
22
the Rights remaining unexercised will be issued by the Rights Agent to such
holder or to such holder's duly authorized assigns.
(g) The Company covenants and agrees that it will (i) take all
such action as may be necessary to ensure that all shares delivered (or
evidenced by registration on the stock transfer books of the Company) upon
exercise of Rights shall, at the time of delivery of the certificates (or
registration) for such shares (subject to payment of the Exercise Price), be
duly and validly authorized, executed, issued and delivered (or registered) and
fully paid and nonassessable; (ii) take all such action as may be necessary to
comply with any applicable requirements of the Securities Act of 1933 or the
Exchange Act, and the rules and regulations thereunder, and any other applicable
law, rule or regulation, in connection with the issuance of any shares upon
exercise of Rights; and (iii) pay when due and payable any and all federal and
state taxes and charges which may be payable in respect of the original issuance
or delivery of the Rights Certificates or of any shares issued upon the exercise
of Rights, provided, that the Company shall not be required to pay any tax or
charge which may be payable in respect of any transfer involved in the transfer
or delivery of Rights Certificates or the issuance or delivery of certificates
(or the registration) for shares in a name other than that of the holder of the
Rights being transferred or exercised.
2.3 Adjustments to Exercise Price; Number of Rights. (a) In
the event the Company shall at any time after the date of this Agreement and
prior to the Separation Time (i) declare or pay a dividend on any class of
Common Shares payable in Common Stock or Nonvoting Common Stock, as the case may
be, (ii) subdivide any outstanding
-17-
23
class of Common Shares or (iii) combine any outstanding class of Common Shares
into a smaller number of shares of Common Stock or Nonvoting Common Stock, as
the case may be, (x) the Exercise Price in effect after such adjustment will be
equal to the Exercise Price in effect immediately prior to such adjustment
divided by the number of shares of Common Stock or Nonvoting Common Stock (the
"Expansion Factor"), that a holder of one share of Common Stock or Nonvoting
Common Stock, as the case may be, immediately prior to such dividend,
subdivision or combination would hold thereafter as a result thereof and (y)
each Right held prior to such adjustment will become that number of Rights equal
to the Expansion Factor, and the adjusted number of Rights will be deemed to be
distributed among the shares of Common Stock or Nonvoting Common Stock, as the
case may be, with respect to which the original Rights were associated (if they
remain outstanding) and the shares issued in respect of such dividend,
subdivision or combination, so that each such share of Common Stock or Nonvoting
Common Stock, as the case may be, will have exactly one Right associated with
it. Each adjustment made pursuant to this paragraph shall be made as of the
payment or effective date for the applicable dividend, subdivision or
combination.
In the event the Company shall at any time after the date of
this Agreement and prior to the Separation Time issue any Common Shares
otherwise than in a transaction referred to in the preceding paragraph, each
such Common Share so issued shall automatically have one new Right associated
with it, which Right shall be evidenced by the certificate representing such
share (or, if the Common Shares shall be uncertificated, such Right shall be
evidenced by the registration of such Common Shares
-18-
24
on the stock transfer books of the Company). Rights shall be issued by the
Company in respect of Common Shares that are issued or sold by the Company after
the Separation Time only to the extent provided in Section 5.3.
(b) In the event the Company shall at any time after the date
of this Agreement and prior to the Separation Time issue or distribute any
securities or assets in respect of, in lieu of or in exchange for Common Shares
(other than pursuant to any non-extraordinary periodic cash dividend or a
dividend paid solely in Common Shares) whether by dividend, in a
reclassification or recapitalization (including any such transaction involving a
merger, consolidation or share exchange), or otherwise, the Company shall make
such adjustments, if any, in the Exercise Price, number of Rights and/or
securities or other property purchasable upon exercise of Rights as the Board of
Directors of the Company, in its sole discretion, may deem to be appropriate
under the circumstances in order to adequately protect the interests of the
holders of Rights generally, and the Company and the Rights Agent shall amend
this Agreement as necessary to provide for such adjustments.
(c) Each adjustment to the Exercise Price made pursuant to
this Section 2.3 shall be calculated to the nearest cent. Whenever an adjustment
to the Exercise Price is made pursuant to this Section 2.3, the Company shall
(i) promptly prepare a certificate setting forth such adjustment and a brief
statement of the facts accounting for such adjustment and (ii) promptly file
with the Rights Agent and with each transfer agent for the Common Shares a copy
of such certificate. The Rights Agent shall be fully protected in relying on any
such certificate and on any adjustment therein
-19-
25
contained and shall have no duty with respect to and not be deemed to have
knowledge of any adjustment unless and until it shall have received such a
certificate.
(d) Rights Certificates shall represent the securities
purchasable under the terms of this Agreement, including any adjustment or
change in the securities purchasable upon exercise of the Rights, even though
such certificates may continue to express the securities purchasable at the time
of issuance of the initial Rights Certificates.
2.4 Date on Which Exercise is Effective. Each Person in whose
name any certificate for shares is issued (or registration on the stock transfer
books is effected) upon the exercise of Rights shall for all purposes be deemed
to have become the holder of record of the shares represented thereby on the
date upon which the Rights Certificate evidencing such Rights was duly
surrendered and payment of the Exercise Price for such Rights (and any
applicable taxes and other governmental charges payable by the exercising holder
hereunder) was made; provided, however, that if the date of such surrender and
payment is a date upon which the stock transfer books of the Company are closed,
such Person shall be deemed to have become the record holder of such shares on,
and such certificate (or registration) shall be dated, the next succeeding
Business Day on which the stock transfer books of the Company are open.
2.5 Execution, Authentication, Delivery and Dating of Rights
Certificates. (a) The Rights Certificates shall be executed on behalf of the
Company by one of its Chairmen of the Board, one of its Chief Executive
Officers, one of its Presidents or one of its Vice Presidents, under its
corporate seal reproduced thereon
-20-
26
attested by one of its Secretaries or one of its Assistant Secretaries. The
signature of any of these officers on the Rights Certificates may be manual or
facsimile.
Rights Certificates bearing the manual or facsimile signatures
of individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the countersignature and delivery of such
Rights Certificates.
Promptly after the Separation Time, the Company will notify
the Rights Agent of such Separation Time and will deliver Rights Certificates
executed by the Company to the Rights Agent for counter-signature, and, subject
to Section 3.1(b), the Rights Agent shall manually countersign and deliver such
Rights Certificates to the holders of the Rights pursuant to Section 2.2(c)
hereof. No Rights Certificate shall be valid for any purpose unless manually
countersigned by the Rights Agent.
(b) Each Rights Certificate shall be dated the date of
countersignature thereof.
2.6 Registration, Registration of Transfer and Exchange. (a)
After the Separation Time, the Company will cause to be kept a register (the
"Rights Register") in which, subject to such reasonable regulations as it may
prescribe, the Company will provide for the registration and transfer of Rights.
The Rights Agent is hereby appointed "Rights Registrar" for the purpose of
maintaining the Rights Register for the Company and registering Rights and
transfers of Rights after the Separation Time as herein provided. In the event
that the Rights Agent shall cease to be the Rights Registrar, the
-21-
27
Rights Agent will have the right to examine the Rights Register at all
reasonable times after the Separation Time.
After the Separation Time and prior to the Expiration Time,
upon surrender for registration of transfer or exchange of any Rights
Certificate, and subject to the provisions of Section 2.6(c) and (d), the
Company will execute, and the Rights Agent will countersign and deliver, in the
name of the holder or the designated transferee or transferees, as required
pursuant to the holder's instructions, one or more new Rights Certificates
evidencing the same aggregate number of Rights as did the Rights Certificate so
surrendered.
(b) Except as otherwise provided in Section 3.1(b), all Rights
issued upon any registration of transfer or exchange of Rights Certificates
shall be the valid obligations of the Company, and such Rights shall be entitled
to the same benefits under this Agreement as the Rights surrendered upon such
registration of transfer or exchange.
(c) Every Rights Certificate surrendered for registration of
transfer or exchange shall be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company or the Rights Agent,
as the case may be, duly executed by the holder thereof or such holder's
attorney duly authorized in writing. As a condition to the issuance of any new
Rights Certificate under this Section 2.6, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto.
-22-
28
(d) The Company shall not register the transfer or exchange of
any Rights after such Rights have become void under Section 3.1(b), been
exchanged under Section 3.1(c) or been redeemed under Section 5.1.
2.7 Mutilated, Destroyed, Lost and Stolen Rights Certificates.
(a) If any mutilated Rights Certificate is surrendered to the Rights Agent prior
to the Expiration Time, then, subject to Sections 3.1(b), 3.1(c) and 5.1, the
Company shall execute and the Rights Agent shall countersign and deliver in
exchange therefor a new Rights Certificate evidencing the same number of Rights
as did the Rights Certificate so surrendered.
(b) If there shall be delivered to the Company and the Rights
Agent prior to the Expiration Time (i) evidence to their satisfaction of the
destruction, loss or theft of any Rights Certificate and (ii) such security or
indemnity as may be required by them to save each of them and any of their
agents harmless, then, subject to Sections 3.1(b), 3.1(c) and 5.1 and in the
absence of notice to the Company or the Rights Agent that such Rights
Certificate has been acquired by a bona fide purchaser, the Company shall
execute and upon its request the Rights Agent shall countersign and deliver, in
lieu of any such destroyed, lost or stolen Rights Certificate, a new Rights
Certificate evidencing the same number of Rights as did the Rights Certificate
so destroyed, lost or stolen.
(c) As a condition to the issuance of any new Rights
Certificate under this Section 2.7, the Company may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Rights Agent) connected therewith.
-23-
29
(d) Every new Rights Certificate issued pursuant to this
Section 2.7 in lieu of any destroyed, lost or stolen Rights Certificate shall
evidence an original additional contractual obligation of the Company, whether
or not the destroyed, lost or stolen Rights Certificate shall be at any time
enforceable by anyone, and, subject to Section 3.1(b) shall be entitled to all
the benefits of this Agreement equally and proportionately with any and all
other Rights duly issued hereunder.
2.8 Persons Deemed Owners. Prior to due presentment of a
Rights Certificate (or, prior to the Separation Time, the associated Common
Share certificate or notice of transfer, if uncertificated) for registration of
transfer, the Company, the Rights Agent and any agent of the Company or the
Rights Agent may deem and treat the person in whose name such Rights Certificate
(or, prior to the Separation Time, such Common Share certificate or Common Share
registration, if uncertificated) is registered as the absolute owner thereof and
of the Rights evidenced thereby for all purposes whatsoever, including the
payment of the Redemption Price and neither the Company nor the Rights Agent
shall be affected by any notice to the contrary. As used in this Agreement,
unless the context otherwise requires, the term "holder" of any Rights shall
mean the registered holder of such Rights (or, prior to the Separation Time, the
associated Common Shares).
2.9 Delivery and Cancellation of Certificates. All Rights
Certificates surrendered upon exercise or for registration of transfer or
exchange shall, if surrendered to any person other than the Rights Agent, be
delivered to the Rights Agent and, in any case, shall be promptly cancelled by
the Rights Agent. The Company may at any time deliver to the Rights Agent for
cancellation any Rights Certificates previously counter-
-24-
30
signed and delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Rights Certificates so delivered shall be promptly cancelled
by the Rights Agent. No Rights Certificates shall be countersigned in lieu of or
in exchange for any Rights Certificates cancelled as provided in this Section
2.9, except as expressly permitted by this Agreement. The Rights Agent shall
destroy all cancelled Rights Certificates and deliver a certificate of
destruction to the Company.
2.10 Agreement of Rights Holders. Every holder of Rights by
accepting the same consents and agrees with the Company and the Rights Agent and
with every other holder of Rights that:
(a) prior to the Separation Time, each Right will be
transferable only together with, and will be transferred by a transfer of, the
associated Common Share;
(b) after the Separation Time, the Rights Certificates will be
transferable only on the Rights Register as provided herein;
(c) prior to due presentment of a Rights Certificate (or,
prior to the Separation Time, the associated Common Share certificate or Common
Share registration, if uncertificated) for registration of transfer, the
Company, the Rights Agent and any agent of the Company or the Rights Agent may
deem and treat the person in whose name the Rights Certificate (or, prior to the
Separation Time, the associated Common Share certificate or Common Share
registration, if uncertificated) is registered as the absolute owner thereof and
of the Rights evidenced thereby for all purposes whatsoever, and neither the
Company nor the Rights Agent shall be affected by any notice to the contrary;
-25-
31
(d) Rights beneficially owned by certain Persons will, under
the circumstances set forth in Section 3.1(b), become void; and
(e) this Agreement may be supplemented or amended from time to
time pursuant to Section 2.3(b) or 5.4 hereof.
ARTICLE III
ADJUSTMENTS TO THE RIGHTS IN
THE EVENT OF CERTAIN TRANSACTIONS
3.1 Flip-in. (a) In the event that prior to the Expiration
Time a Flip-in Date shall occur, except as provided in this Section 3.1, each
Right shall constitute the right to purchase from the Company, upon exercise
thereof in accordance with the terms hereof (but subject to Section 5.10), that
number of shares of Common Stock, in the case of Voting Class Rights, or
Nonvoting Common Stock, in the case of Nonvoting Class Rights, having an
aggregate Market Price on the Stock Acquisition Date that gave rise to the
Flip-in Date equal to twice the Exercise Price for an amount in cash equal to
the Exercise Price (such right to be appropriately adjusted in order to protect
the interests of the holders of Rights generally in the event that on or after
such Stock Acquisition Date any of the events described in Section 2.3(a) or
(b), or any analogous event, shall have occurred with respect to the Common
Shares).
(b) Notwithstanding the foregoing, any Rights that are or were
Beneficially Owned on or after the Stock Acquisition Date by an Acquiring Person
or an Affiliate or Associate thereof or by any transferee, direct or indirect,
of any of the foregoing shall become void and any holder of such Rights
(including transferees) shall
-26-
32
thereafter have no right to exercise or transfer such Rights under any provision
of this Agreement. If any Rights Certificate is presented for assignment or
exercise and the Person presenting the same will not complete the certification
set forth at the end of the form of assignment or notice of election to exercise
and provide such additional evidence of the identity of the Beneficial Owner and
its Affiliates and Associates (or former Beneficial Owners and their Affiliates
and Associates) as the Company shall reasonably request, then the Company shall
be entitled conclusively to deem the Beneficial Owner thereof to be an Acquiring
Person or an Affiliate or Associate thereof or a transferee of any of the
foregoing and accordingly will deem the Rights evidenced thereby to be void and
not transferable or exercisable.
(c) The Board of Directors of the Company may, at its option,
at any time after a Flip-in Date and prior to the time that an Acquiring Person
becomes the Beneficial Owner of more than 50% of the outstanding shares of
Common Stock elect to exchange all (but not less than all) the then outstanding
Rights (which shall not include Rights that have become void pursuant to the
provisions of Section 3.1(b)) for shares of Common Stock, in the case of Voting
Class Rights, and Nonvoting Common Stock, in the case of Nonvoting Class Rights,
at an exchange ratio of one share of Common Stock or Nonvoting Common Stock, as
the case may be, per Right, appropriately adjusted in order to protect the
interests of holders of Rights generally in the event that after the Separation
Time any of the events described in Section 2.3(a) or (b), or any analogous
event, shall have occurred with respect to the Common Shares (such exchange
ratio, as adjusted from time to time, being hereinafter referred to as the
"Exchange Ratio").
-27-
33
Notwithstanding anything to the contrary contained in this Agreement, upon
action of the Board of Directors of the Company electing to exchange the Rights
pursuant to this Section 3.1(c), any Voting Class Rights held by SBCM shall be
exchanged for shares of Common Stock only to the extent that SBCM's aggregate
holdings constitute 4.9 percent or less of the outstanding Common Stock of the
Company. Any Voting Class Rights of SBCM that upon exchange would cause SBCM to
hold in excess of 4.9 percent of the Company's outstanding Common Stock will be
exchanged for Nonvoting Common Stock.
Immediately upon the action of the Board of Directors of the
Company electing to exchange the Rights, without any further action and without
any notice, the right to exercise the Rights will terminate and each Right
(other than Rights that have become void pursuant to Section 3.1(b)) will
thereafter represent only the right to receive a number of shares of Common
Stock or Nonvoting Common Stock, as the case may be, multiplied by the Exchange
Ratio. Promptly after the action of the Board of Directors electing to exchange
the Rights, the Company shall give written notice thereof (specifying the steps
to be taken to receive Common Shares in exchange for Rights) to the Rights Agent
and the holders of the Rights (other than Rights that have become void pursuant
to Section 3.1(b)) outstanding immediately prior thereto by mailing such notice
in accordance with Section 5.9.
Each Person in whose name any certificate for shares is issued
(or for whom any registration on the stock transfer books of the Company is
made) upon the exchange of Rights pursuant to this Section 3.1(c) or Section
3.1(d) shall for all purposes
-28-
34
be deemed to have become the holder of record of the shares represented thereby
on, and such certificate (or registration on the stock transfer books of the
Company) shall be dated (or registered as of), the date upon which the Rights
Certificate evidencing such Rights was duly surrendered and payment of any
applicable taxes and other governmental charges payable by the holder was made;
provided, however, that if the date of such surrender and payment is a date upon
which the stock transfer books of the Company are closed, such Person shall be
deemed to have become the record holder of such shares on, and such certificate
(or registration on the stock transfer books of the Company) shall be dated (or
registered as of), the next succeeding Business Day on which the stock transfer
books of the Company are open.
(d) Whenever the Company shall become obligated under Section
3.1(a) or (c) to issue Common Shares upon exercise of or in exchange for Rights,
the Company, at its option, may substitute therefor shares of the applicable
Preferred Stock, at a ratio of one one-hundredth of a share of Preferred Stock
for each Common Share so issuable.
(e) In the event that there shall not be sufficient treasury
shares or authorized but unissued Common Shares or Preferred Stock of the
Company to permit the exercise or exchange in full of the Rights in accordance
with Section 3.1(a) or, if the Company so elects, to make the exchange referred
to in Section 3.1(c), the Company shall either (i) call a meeting of
stockholders seeking approval to cause sufficient additional shares to be
authorized (provided that if such approval is not obtained the Company will take
the action specified in clause (ii) of this sentence) or (ii) take such action
as shall be
-29-
35
necessary to ensure and provide, to the extent permitted by applicable law and
any agreements or instruments in effect on the Stock Acquisition Date to which
it is a party, that each Right shall thereafter constitute the right to receive,
(x) at the Company's option, either (A) in return for the Exercise Price, debt
or equity securities or other assets (or a combination thereof) having a fair
value equal to twice the Exercise Price, or (B) without payment of consideration
(except as otherwise required by applicable law), debt or equity securities or
other assets (or a combination thereof) having a fair value equal to the
Exercise Price, or (y) if the Board of Directors of the Company elects to
exchange the Rights in accordance with Section 3.1(c), debt or equity securities
or other assets (or a combination thereof) having a fair value equal to the
product of the Market Price of a share of Common Stock or, if applicable, the
Market Price of a share of Nonvoting Common Stock on the Stock Acquisition Date
times the Exchange Ratio in effect on the Flip-in Date, where in any case set
forth in (x) or (y) above the fair value of such debt or equity securities or
other assets shall be as determined in good faith by the Board of Directors of
the Company, after consultation with a nationally recognized investment banking
firm other than ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
3.2 Flip-over. (a) Prior to the Expiration Time, the Company
shall not enter into any agreement with respect to, consummate or permit to
occur any Flip-over Transaction or Event unless and until it shall have entered
into a supplemental agreement with the Flip-over Entity, for the benefit of the
holders of the Rights, providing that, upon consummation or occurrence of the
Flip-over Transaction or Event (i) each Right shall thereafter constitute the
right to purchase from the Flip-over Entity, upon exercise thereof
-30-
36
in accordance with the terms hereof, that number of shares of the applicable
Flip-over Stock of the Flip-over Entity having an aggregate Market Price on the
date of consummation or occurrence of such Flip-over Transaction or Event equal
to twice the Exercise Price for the applicable Right for an amount in cash equal
to the Exercise Price for the applicable Right (such right to be appropriately
adjusted in order to protect the interests of the holders of Rights generally in
the event that after such date of consummation or occurrence any of the events
described in Section 2.3(a) or (b), or any analogous event, shall have occurred
with respect to the Flip-over Stock) and (ii) the Flip-over Entity shall
thereafter be liable for, and shall assume, by virtue of such Flip-over
Transaction or Event and such supplemental agreement, all the obligations and
duties of the Company pursuant to this Agreement. The provisions of this Section
3.2 shall apply to successive Flip-over Transactions or Events.
(b) Prior to the Expiration Time, the Company shall not enter
into any agreement with respect to, consummate or permit to occur any Flip-over
Transaction or Event if at the time thereof there are any rights, warrants or
securities outstanding or any other arrangements, agreements or instruments that
would eliminate or otherwise diminish in any material respect the benefits
intended to be afforded by this Rights Agreement to the holders of Rights upon
consummation of such transaction.
-31-
37
ARTICLE IV
THE RIGHTS AGENT
4.1 General. (a) The Company hereby appoints the Rights Agent
to act as agent for the Company in accordance with the terms and conditions
hereof, and the Rights Agent hereby accepts such appointment. The Company agrees
to pay to the Rights Agent reasonable compensation for all services rendered by
it hereunder and, from time to time, on demand of the Rights Agent, its
reasonable expenses and counsel fees and other disbursements incurred in the
preparation, delivery, amendment, administration and execution of this Agreement
and the exercise and performance of its duties hereunder. The Company also
agrees to indemnify the Rights Agent for, and to hold it harmless against, any
loss, liability, damage, judgment, fine, penalty, claim, demand, settlement,
cost or expense, incurred without gross negligence, bad faith or willful
misconduct on the part of the Rights Agent, which gross negligence, bad faith or
willful misconduct must be determined by a final, non-appealable order,
judgment, decree or ruling of a court of competent jurisdiction, for any action
taken, suffered or omitted by the Rights Agent in connection with the acceptance
and administration of this Agreement, including, without limitation, the costs
and expenses of defending against any claim of liability. The indemnity provided
herein shall survive the termination of this Agreement and the termination and
the expiration of the Rights. The costs and expenses incurred in enforcing this
right of indemnification shall be paid by the Company. Anything to the contrary
notwithstanding, in no event shall the Rights Agent be liable for special,
-32-
38
punitive, indirect, consequential or incidental loss or damage of any kind
whatsoever (including but not limited to lost profits), even if the Rights Agent
has been advised of the likelihood of such loss or damage.
(b) The Rights Agent shall be authorized and protected and
shall incur no liability for or in respect of any action taken, suffered or
omitted by it in connection with its acceptance and administration of this
Agreement in reliance upon any certificate for securities (or registration on
the stock transfer books of the Company) purchasable upon exercise of Rights,
Rights Certificate, certificate for other securities of the Company, instrument
of assignment or transfer, power of attorney, endorsement, affidavit, letter,
notice, direction, consent, certificate, statement, or other paper or document
believed by it to be genuine and to be signed, executed and, where necessary,
verified or acknowledged, by the proper person or persons.
4.2 Merger or Consolidation or Change of Name of Rights Agent.
(a) Any Person into which the Rights Agent or any successor Rights Agent may be
merged or with which it may be consolidated, or any Person resulting from any
merger or consolidation to which the Rights Agent or any successor Rights Agent
is a party, or any Person succeeding to the shareholder services business of the
Rights Agent or any successor Rights Agent, will be the successor to the Rights
Agent under this Agreement without the execution or filing of any paper or any
further act on the part of any of the parties hereto, provided that such
corporation would be eligible for appointment as a successor Rights Agent under
the provisions of Section 4.4 hereof. In case at the time such successor Rights
Agent succeeds to the agency created by this Agreement any of the
-33-
39
Rights Certificates have been countersigned but not delivered, any such
successor Rights Agent may adopt the countersignature of the predecessor Rights
Agent and deliver such Rights Certificates so countersigned; and in case at that
time any of the Rights Certificates have not been countersigned, any successor
Rights Agent may countersign such Rights Certificates either in the name of the
predecessor Rights Agent or in the name of the successor Rights Agent; and in
all such cases such Rights Certificates will have the full force provided in the
Rights Certificates and in this Agreement.
(b) In case at any time the name of the Rights Agent is
changed and at such time any of the Rights Certificates shall have been
countersigned but not delivered, the Rights Agent may adopt the countersignature
under its prior name and deliver Rights Certificates so countersigned; and in
case at that time any of the Rights Certificates shall not have been
countersigned, the Rights Agent may countersign such Rights Certificates either
in its prior name or in its changed name; and in all such cases such Rights
Certificates shall have the full force provided in the Rights Certificates and
in this Agreement.
4.3 Duties of Rights Agent. The Rights Agent undertakes the
duties and obligations expressly imposed by this Agreement upon the following
terms and conditions, all of which the Company and the holders of Rights
Certificates, by their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel (who may
be legal counsel for the Company), and the advice or opinion of such counsel
will be full and complete authorization and protection to the Rights Agent and
the Rights Agent shall
-34-
40
incur no liability for or in respect of any action taken, suffered or omitted by
it in good faith and in accordance with such advice or opinion.
(b) Whenever in the performance of its duties under this
Agreement the Rights Agent deems it necessary or desirable that any fact or
matter (including, without limitation, the identity of any Acquiring Person and
the determination of the Market Price) be proved or established by the Company
prior to taking, suffering or omitting any action hereunder, such fact or matter
(unless other evidence in respect thereof be herein specifically prescribed) may
be deemed to be conclusively proved and established by a certificate signed by a
person believed by the Rights Agent to be one of the Chairmen of the Board, one
of the Chief Executive Officers, one of the Presidents or one of the Vice
Presidents and by any Treasurer or any Assistant Treasurer or any Secretary or
any Assistant Secretary of the Company and delivered to the Rights Agent; and
such certificate will be full authorization and protection to the Rights Agent
and the Rights Agent shall incur no liability for or in respect of any action
taken, suffered or omitted in good faith by it under the provisions of this
Agreement in reliance upon such certificate.
(c) The Rights Agent will be liable hereunder only for its own
gross negligence, bad faith or willful misconduct.
(d) The Rights Agent will not be liable for or by reason of
any of the statements of fact or recitals contained in this Agreement or in the
certificates, if any, for securities purchasable upon exercise of Rights or the
Rights Certificates (except its
-35-
41
countersignature thereof) or be required to verify the same, but all such
statements and recitals are and will be deemed to have been made by the Company
only.
(e) The Rights Agent will not be under any liability or
responsibility in respect of the validity of this Agreement or the execution and
delivery hereof (except the due authorization, execution and delivery hereof by
the Rights Agent) or in respect of the validity or execution of any certificate,
if any, for securities purchasable upon exercise of Rights or Rights Certificate
(except its countersignature thereof); nor will it be responsible for any breach
by the Company of any covenant or condition contained in this Agreement or in
any Rights Certificate; nor will it be responsible for any change in the
exercisability of the Rights (including the Rights becoming void pursuant to
Section 3.1(b) hereof) or any adjustment required under the provisions of
Section 2.3, 3.1 or 3.2 hereof or responsible for the manner, method or amount
of any such adjustment or the ascertaining of the existence of facts that would
require any such adjustment (except with respect to the exercise of Rights after
receipt of the certificate contemplated by Section 2.3 describing any such
adjustment); nor will it by any act hereunder be deemed to make any
representation or warranty as to the authorization or reservation of any
securities purchasable upon exercise of Rights or any Rights or as to whether
any securities purchasable upon exercise of Rights will, when issued, be duly
and validly authorized, executed, issued and delivered and fully paid and
nonassessable.
(f) The Company agrees that it will perform, execute,
acknowledge and deliver or cause to be performed, executed, acknowledged and
delivered all such further and other acts, instruments and assurances as may
reasonably be required by the
-36-
42
Rights Agent for the carrying out or performing by the Rights Agent of the
provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from any
person believed by the Rights Agent to be a Chairman of the Board, a Chief
Executive Officer, a President or a Vice President, a Secretary or an Assistant
Secretary, a Treasurer or an Assistant Treasurer of the Company, and to apply to
such persons for advice or instructions in connection with its duties, and such
instructions shall be full authorization and protection to the Rights Agent and
the Rights Agent shall incur no liability for or in respect of any action taken,
suffered or omitted by it in good faith in accordance with instructions of any
such person.
(h) The Rights Agent and any affiliate, stockholder, director, officer
or employee of the Rights Agent may buy, sell or deal in Common Shares, Rights
or other securities of the Company or become pecuniarily interested in any
transaction in which the Company may be interested, or contract with or lend
money to the Company or otherwise act as fully and freely as though it were not
Rights Agent under this Agreement. Nothing herein shall preclude the Rights
Agent from acting in any other capacity for the Company or for any other Person
or legal entity.
(i) The Rights Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either itself or by or
through its attorneys or agents, and the Rights Agent will not be answerable or
accountable for any act, default, neglect or misconduct of any such attorneys or
agents or for any loss to the
-37-
43
Company resulting from any such act, default, neglect or misconduct, absent
gross negligence, bad faith or willful misconduct in the selection and continued
employment thereof.
(j) No provision of this Agreement shall require the Rights Agent to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of its rights if
it believes that repayment of such funds or adequate indemnification against
such risk of liability is not reasonably assured to it.
4.4 Change of Rights Agent. The Rights Agent may resign and be
discharged from its duties under this Agreement upon 30 days' notice (or such
lesser notice as is acceptable to the Company) in writing mailed to the Company
and to each transfer agent of Common Shares by registered or certified mail, and
to the holders of the Rights in accor dance with Section 5.9. The Company may
remove the Rights Agent upon 30 days' notice in writing, mailed to the Rights
Agent and to each transfer agent of the Common Shares by registered or certified
mail, and to the holders of the Rights in accordance with Section 5.9. If the
Rights Agent should resign or be removed or otherwise become incapable of
acting, the Company will appoint a successor to the Rights Agent. If the Company
fails to make such appointment within a period of 30 days after such removal or
after it has been notified in writing of such resignation or incapacity by the
resigning or incapacitated Rights Agent or by the holder of any Rights (which
holder shall, with such notice, submit such holder's Rights Certificate for
inspection by the Company), then the holder of any Rights or the Rights Agent
may apply to any court
-38-
44
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 Person organized and doing business under the laws of the United
States or any state of the United States, in good standing, which is authorized
under such laws to exercise the powers of the Rights Agent contemplated by this
Agreement and is subject to supervision or examination by federal or state
authority and which has at the time of its appointment as Rights Agent a
combined capital and surplus of at least $50,000,000. After appointment, the
successor Rights Agent will be vested with the same powers, rights, duties and
responsibilities as if it had been originally named as Rights Agent without
further act or deed; but the predecessor Rights Agent shall deliver and transfer
to the successor Rights Agent any property at the time held by it hereunder, and
execute and deliver any further assurance, conveyance, act or deed necessary for
the purpose. Not later than the effective date of any such appointment, the
Company will file notice thereof in writing with the predecessor Rights Agent
and each transfer agent of the Common Shares, and mail a notice thereof in
writing to the holders of the Rights. Failure to give any notice provided for in
this Section 4.4, however, or any defect therein, shall not affect the legality
or validity of the resignation or removal of the Rights Agent or the appointment
of the successor Rights Agent, as the case may be.
-39-
45
ARTICLE V
MISCELLANEOUS
-40-
46
5.1 Redemption. (a) The Board of Directors of the Company may, at its
option, at any time prior to the Flip-in Date, elect to redeem all (but not less
than all) the then outstanding Rights at the Redemption Price and the Company,
at its option, may pay the Redemption Price either in cash or in Common Stock,
in the case of the Voting Class Rights, or in Nonvoting Common Stock, in the
case of the Nonvoting Class Rights, or other securities of the Company deemed by
the Board of Directors, in the exercise of its sole discretion, to be at least
equivalent in value to the Redemption Price.
(b) Immediately upon the action of the Board of Directors of the
Company electing to redeem the Rights (or, if the resolution of the Board of
Directors electing to redeem the Rights states that the redemption will not be
effective until the occurrence of a specified future time or event, upon the
occurrence of such future time or event), without any further action and without
any notice, the right to exercise the Rights will terminate and each Right will
thereafter represent only the right to receive the Redemption Price in cash or
securities, as determined by the Board of Directors. Promptly after the Rights
are redeemed, the Company shall give notice of such redemption to the Rights
Agent and the holders of the then outstanding Rights by mailing such notice in
accordance with Section 5.9.
5.2 Expiration. The Rights and this Agreement shall expire at the
Expiration Time and no Person shall have any rights pursuant to this Agreement
or any Right after the Expiration Time, except, if the Rights are exchanged or
redeemed, as provided in Section 3.1 or 5.1 hereof, respectively.
-41-
47
5.3 Issuance of New Rights Certificates. Notwithstanding any of the
provisions of this Agreement or of the Rights to the contrary, the Company may,
at its option, issue new Rights Certificates evidencing Rights in such form as
may be approved by its Board of Directors to reflect any adjustment or change in
the number or kind or class of shares of stock purchasable upon exercise of
Rights made in accordance with the provisions of this Agreement. In addition, in
connection with the issuance or sale of Common Shares by the Company following
the Separation Time and prior to the Expiration Time pursuant to the terms of
securities convertible or redeemable into Common Shares or to options, in each
case issued or granted prior to, and outstanding at, the Separation Time, the
Company shall issue to the holders of such Common Shares, applicable Rights
Certificates representing the appropriate number of applicable Rights in
connection with the issuance or sale of such Common Shares; provided, however,
in each case, (i) no such Rights Certificate shall be issued, if, and to the
extent that, the Company shall be advised by counsel that such issuance would
create a significant risk of material adverse tax consequences to the Company or
to the Person to whom such Rights Certificates would be issued, (ii) no such
Rights Certificates shall be issued if, and to the extent that, appropriate
adjustment shall have otherwise been made in lieu of the issuance thereof, and
(iii) the Company shall not distribute Rights Certificates to any Acquiring
Person or Affiliate or Associate of an Acquiring Person or any transferee of any
of the foregoing.
5.4 Supplements and Amendments. The Company and the Rights Agent may
from time to time supplement or amend this Agreement without the approval
-42-
48
of any holders of Rights (i) prior to the Flip-in Date, in any respect and (ii)
on or after the Flip-in Date, to make any changes that the Company may deem
necessary or desirable and which shall not materially adversely affect the
interests of the holders of Rights generally or in order to cure any ambiguity
or to correct or supplement any provision contained herein which may be
inconsistent with any other provisions herein or otherwise defective. The Rights
Agent will, upon the delivery of a certificate from an appropriate officer of
the Company that states that the proposed supplement or amendment complies with
this Section 5.4, duly execute and deliver any supplement or amendment hereto
requested by the Company which satisfies the terms of the preceding sentence.
Notwithstanding anything contained in this Agreement to the contrary, the Rights
Agent may, but shall not be obligated to, enter into any supplement or amendment
that affects the Rights Agent's rights, duties, obligations or immunities under
this Agreement.
5.5 Fractional Shares. If the Company elects not to issue certificates
representing (or register on the stock transfer books of the Company) fractional
shares upon exercise or redemption of Rights, the Company shall, in lieu
thereof, in the sole discretion of the Board of Directors, either (a) evidence
such fractional shares by depositary receipts issued pursuant to an appropriate
agreement between the Company and a depositary selected by it, providing that
each holder of a depositary receipt shall have all of the rights, privileges and
preferences to which such holder would be entitled as a beneficial owner of such
fractional share, or (b) pay to the registered holder of such Rights the
appropriate fraction of the Market Price per share in cash.
-43-
49
5.6 Rights of Action. Subject to the terms of this Agreement (including
Sections 3.1(b) and 5.14), rights of action in respect of this Agreement, other
than rights of action vested solely in the Rights Agent, are vested in the
respective holders of the Rights; and any holder of any Voting Class Rights or
Nonvoting Class Rights, as the case may be, without the consent of the Rights
Agent or of the holder of any other Voting Class Rights or Nonvoting Class
Rights, as the case may be, may, on such holder's own behalf and for such
holder's own benefit and the benefit of other holders of Voting Class Rights or
Nonvoting Class Rights, as the case may be, enforce, and may institute and
maintain any suit, action or proceeding against the Company to enforce, or
otherwise act in respect of, such holder's right to exercise such holder's
Rights in the manner provided in such holder's Rights Certificate and in this
Agreement. Without limiting the foregoing or any remedies available to the
holders of Rights, it is specifically acknowledged that the holders of Rights
would not have an adequate remedy at law for any breach of this Agreement and
will be entitled to specific performance of the obligations under, and
injunctive relief against actual or threatened violations of, the obligations of
any Person subject to this Agreement.
5.7 Holder of Rights Not Deemed a Stockholder. No holder, as such, of
any Rights shall be entitled to vote, receive dividends or be deemed for any
purpose the holder of shares or any other securities which may at any time be
issuable on the exercise of such Rights, nor shall anything contained herein or
in any Rights Certificate be construed to confer upon the holder of any Rights,
as such, any of the rights of a stockholder of the Company or any right to vote
for the election of directors or upon any
-44-
50
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 5.8 hereof), or to
receive dividends or subscription rights, or otherwise, until such Rights shall
have been exercised or exchanged in accordance with the provisions hereof.
5.8 Notice of Proposed Actions. In case the Company shall propose after
the Separation Time and prior to the Expiration Time (i) to effect or permit a
Flip-over Transaction or Event or (ii) to effect the liquidation, dissolution
or winding up of the Company, then, in each such case, the Company shall give to
each holder of a Right, in accordance with Section 5.9 hereof, a notice of such
proposed action, which shall specify the date on which such Flip-over
Transaction or Event, liquidation, dissolution, or winding up is to take place,
and such notice shall be so given at least 20 Business Days prior to the date of
the taking of such proposed action.
5.9 Notices. Notices or demands authorized or required by this
Agreement to be given or made by the Rights Agent or by the holder of any Rights
to or on the Company shall be sufficiently given or made if delivered or sent by
first-class mail, postage prepaid, addressed (until another address is filed in
writing with the Rights Agent) as follows:
The ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Secretary
-45-
51
Any notice or demand authorized or required by this Agreement to be given or
made by the Company or by the holder of any Rights to or on the Rights Agent
shall be sufficiently given or made if delivered or sent by first-class mail,
postage prepaid, addressed (until another address is filed in writing with the
Company) as follows:
ChaseMellon Shareholder Services, L.L.C.
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: General Counsel
Notices or demands authorized or required by this Agreement to be given or made
by the Company or the Rights Agent to or on the holder of any Rights shall be
sufficiently given or made if delivered or sent by first-class mail, postage
prepaid, addressed to such holder at the address of such holder as it appears
upon the registry books of the Rights Agent or, prior to the Separation Time, on
the registry books of the transfer agent for the Common Shares. Any notice which
is mailed in the manner herein provided shall be deemed given, whether or not
the holder receives the notice.
5.10 Suspension of Exercisability. To the extent that the Company
determines in good faith that some action will or need be taken pursuant to
Section 3.1 or to comply with federal or state securities laws, the Company may
suspend the exercisability of the Rights for a reasonable period in order to
take such action or comply with such laws. In the event of any such suspension,
the Company shall issue as promptly as practicable a public announcement (with
prompt written notice thereof to the Rights Agent) stating that the
exercisability or exchangeability of the Rights has been temporarily suspended.
Notice thereof pursuant to Section 5.9 shall not be required.
-46-
52
Failure to give a notice pursuant to the provisions of this Agreement
shall not affect the validity of any action taken hereunder.
5.11 Costs of Enforcement. The Company agrees that if the Company or
any other Person the securities of which are purchasable upon exercise of Rights
fails to fulfill any of its obligations pursuant to this Agreement, then the
Company or such Person will reimburse the holder of any Rights for the costs and
expenses (including legal fees) incurred by such holder in actions to enforce
such holder's rights pursuant to any Rights or this Agreement.
5.12 Successors. All the covenants and provisions of this Agreement by
or for the benefit of the Company or the Rights Agent shall bind and inure to
the benefit of their respective successors and assigns hereunder.
5.13 Benefits of this Agreement. Nothing in this Agreement shall be
construed to give to any Person other than the Company, the Rights Agent and the
holders of the Rights any legal or equitable right, remedy or claim under this
Agreement and this Agreement shall be for the sole and exclusive benefit of the
Company, the Rights Agent and the holders of the Rights.
5.14 Determination and Actions by the Board of Directors, etc. The
Board of Directors of the Company shall have the exclusive power and authority
to administer this Agreement and to exercise all rights and powers specifically
granted to the Board or to the Company, or as may be necessary or advisable in
the administration of this Agreement, including, without limitation, the right
and power to (i) interpret the provisions of this Agreement and (ii) make all
determinations deemed necessary or
-47-
53
advisable for the administration of this Agreement. All such actions,
interpretations and determinations (including, for purposes of clause (y) below,
all omissions with respect to the foregoing) done or made by the Board, shall
(x) be final, conclusive and binding on the Company, the Rights Agent, the
holders of the Rights and all other parties, and (y) not subject the Board of
Directors of the Company to any liability to the holders of the Rights.
5.15 Descriptive Headings. Descriptive headings appear herein for
convenience only and shall not control or affect the meaning or construction of
any of the provisions hereof.
5.16 GOVERNING LAW; EXCLUSIVE JURISDICTION. (A) THIS AGREEMENT AND EACH
RIGHT ISSUED HEREUNDER SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF
THE STATE OF DELAWARE AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF SUCH STATE APPLICABLE TO CONTRACTS TO BE MADE AND
PERFORMED ENTIRELY WITHIN SUCH STATE.
(B) (I) THE COMPANY AND EACH HOLDER OF RIGHTS HEREBY IRREVOCABLY
SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED
IN THE STATE OF DELAWARE OVER ANY SUIT, ACTION, OR PROCEEDING ARISING OUT
OF OR RELATING TO OR CONCERNING THIS AGREEMENT. The Company and each holder
of
-48-
54
Rights acknowledge that the forum designated by this paragraph (b) has a
reasonable relation to this Agreement, and to such Persons' relationship
with one another.
(ii) The Company and each holder of Rights hereby waive, to the
fullest extent permitted by applicable law, any objection which they now or
hereafter have to personal jurisdiction or to the laying of venue of any
such suit, action or proceeding brought in any court referred to in
paragraph (b)(i). The Company and each holder of Rights undertake not to
commence any action subject to this Agreement in any forum other than the
forum described in this paragraph (b). The Company and each holder of
Rights agree that, to the fullest extent permitted by applicable law, a
final and non-appealable judgment in any such suit, action, or proceeding
brought in any such court shall be conclusive and binding upon such
Persons.
5.17 Counterparts. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
5.18 Severability. If any term or provision hereof or the application
thereof to any circumstance shall, in any jurisdiction and to any extent, be
invalid or unenforceable, such term or provision shall be ineffective as to such
jurisdiction to the extent of such invalidity or unenforceability without
invalidating or rendering
-49-
55
unenforceable the remaining terms and provisions hereof or the application of
such term or provision to circumstances other than those as to which it is held
invalid or unenforceable.
-50-
56
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
THE ▇▇▇▇▇▇▇ ▇▇▇▇▇ GROUP, INC.
By: ______________________________
Name:
Title:
CHASEMELLON SHAREHOLDER
SERVICES, L.L.C.
By: _______________________________
Name:
Title:
-51-
57
EXHIBIT A
[Form of Common Stock Rights Certificate]
Certificate No. W- __________ Voting Class Rights
THE VOTING CLASS RIGHTS ARE SUBJECT TO REDEMPTION OR
MANDATORY EXCHANGE, AT THE OPTION OF THE COMPANY, ON THE
TERMS SET FORTH IN THE RIGHTS AGREEMENT. VOTING CLASS
RIGHTS BENEFICIALLY OWNED BY ACQUIRING PERSONS OR
AFFILIATES OR ASSOCIATES THEREOF (AS SUCH TERMS ARE
DEFINED IN THE RIGHTS AGREEMENT) OR TRANSFEREES OF ANY
OF THE FOREGOING WILL BE VOID.
Common Stock Rights Certificate
The ▇▇▇▇▇▇▇ Sachs Group, Inc.
This certifies that ____________________, or registered assigns, is
the registered holder of the number of Voting Class Rights set forth above, each
of which entitles the registered holder thereof, subject to the terms,
provisions and conditions of the Stockholder Protection Rights Agreement, dated
as of April 5, 1999 (as amended from time to time, the "Rights Agreement"),
between The ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group, Inc., a Delaware corporation (the "Company"),
and ChaseMellon Shareholder Services, L.L.C., a New Jersey limited liability
company, as Rights Agent (the "Rights Agent", which term shall include any
successor Rights Agent under the Rights Agreement), to purchase from the Company
at any time after the Separation Time (as such term is defined in the Rights
Agreement) and prior to the close of business on April 5, 2009, one
one-hundredth of a fully paid share of Series A Participating Preferred Stock,
par value $0.01 per share (the "Series A Preferred Stock"), of the Company
(subject to adjustment as provided in the
58
Rights Agreement) at the Exercise Price referred to below, upon presentation and
surrender of this Common Stock Rights Certificate with the Form of Election to
Exercise duly executed at the office of the Rights Agent in The City of New York
designated for such purpose. The Exercise Price shall initially be $250.00 per
Voting Class Right and shall be subject to adjustment in certain events as
provided in the Rights Agreement.
In certain circumstances described in the Rights Agreement, the
Voting Class Rights evidenced hereby may entitle the registered holder thereof
to purchase securities of an entity other than the Company or securities of the
Company other than Series A Preferred Stock or assets of the Company, all as
provided in the Rights Agreement.
This Common Stock Rights Certificate is subject to all of the terms,
provisions and conditions of the Rights Agreement, which terms, provisions and
conditions are hereby incorporated herein by reference and made a part hereof
and to which Rights Agreement reference is hereby made for a full description of
the rights, limitations of rights, obligations, duties and immunities hereunder
of the Rights Agent, the Company and the holders of the Common Stock Rights
Certificates. Copies of the Rights Agreement are on file at the principal office
of the Company and are available without cost upon written request.
This Common Stock Rights Certificate, with or without other Common
Stock Rights Certificates, upon surrender at the office of the Rights Agent
designated for such purpose, may be exchanged for another Common Stock Rights
Certificate or Common Stock Rights Certificates of like tenor evidencing an
aggregate number of
-2-
59
Voting Class Rights equal to the aggregate number of Voting Class Rights
evidenced by the Common Stock Rights Certificate or Common Stock Rights
Certificates surrendered. If this Common Stock Rights Certificate shall be
exercised in part, the registered holder shall be entitled to receive, upon
surrender hereof, another Common Stock Rights Certificate or Common Stock Rights
Certificates for the number of whole Voting Class Rights not exercised.
Subject to the provisions of the Rights Agreement, each Voting Class
Right evidenced by this Common Stock Rights Certificate may be (a) redeemed by
the Company under certain circumstances, at its option, at a redemption price of
$0.01 per Voting Class Right or (b) exchanged by the Company under certain
circumstances, at its option, for one share of Common Stock or one one-hundredth
of a share of Series A Preferred Stock per Voting Class Right (or, in certain
cases, other securities or assets of the Company), subject in each case to
adjustment in certain events as provided in the Rights Agreement.
No holder of this Common Stock Rights Certificate, as such, shall be
entitled to vote or receive dividends or be deemed for any purpose the holder of
any securities which may at any time be issuable on the exercise hereof, nor
shall anything contained in the Rights Agreement or herein be construed to
confer upon the holder hereof, as such, any of the rights of a 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
-3-
60
Agreement), or to receive dividends or subscription rights, or otherwise, until
the Voting Class Rights evidenced by this Common Stock Rights Certificate shall
have been exercised or exchanged as provided in the Rights Agreement.
This Common Stock Rights Certificate shall not be valid or
obligatory for any purpose until it shall have been countersigned by the Rights
Agent.
WITNESS the facsimile signature of the proper officers of the
Company and its corporate seal.
Date: ____________
ATTEST: THE ▇▇▇▇▇▇▇ ▇▇▇▇▇ GROUP, INC.
_______________________________ By_________________________________
Secretary Name:
Title:
Countersigned:
CHASEMELLON SHAREHOLDER
SERVICES, L.L.C.
By____________________________
Authorized Signature
-4-
61
[Form of Reverse Side of Common Stock Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder desires to
transfer this Common Stock Rights Certificate.)
FOR VALUE RECEIVED ________________________ hereby
sells, assigns and transfers unto ______________________________________________
_______________________________________________________
(Please print name and address of transferee)
this Common Stock Rights Certificate, together with all right, title and
interest therein, and does hereby irrevocably constitute and appoint
_______________ Attorney, to transfer the within Common Stock Rights Certificate
on the books of the within-named Company, with full power of substitution.
Dated: _______________, ____
Signature Guaranteed: _____________________________________
Signature
(Signature must correspond to name
as written upon the face of this
Common Stock Rights Certificate
in every particular, without
alteration or enlargement or any
change whatsoever)
Signatures must be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee Medallion program), pursuant to
Exchange Act Rule 17Ad-15.
_______________________________________________________
(To be completed if true)
62
The undersigned hereby represents, for the benefit of all holders of Rights and
Common Shares, that the Voting Class Rights evidenced by this Common Stock
Rights Certificate are not, and, to the knowledge of the undersigned, have never
been, Beneficially Owned by an Acquiring Person or an Affiliate or Associate
thereof (as defined in the Rights Agreement).
_____________________________________
Signature
____________________________________
NOTICE
In the event the certification set forth above is not completed in
connection with a purported assignment, the Company will deem the Beneficial
Owner of the Voting Class Rights evidenced by the enclosed Common Stock Rights
Certificate to be an Acquiring Person or an Affiliate or Associate thereof (as
defined in the Rights Agreement) or a transferee of any of the foregoing and
accordingly will deem the Voting Class Rights evidenced by such Common Stock
Rights Certificate to be void and not transferable or exercisable.
-2-
63
[To be attached to each Common Stock Rights Certificate]
FORM OF ELECTION TO EXERCISE
(To be executed if holder desires to
exercise the Common Stock Rights Certificate.)
TO: THE ▇▇▇▇▇▇▇ ▇▇▇▇▇ GROUP, INC.
The undersigned hereby irrevocably elects to exercise
_______________________ whole Voting Class Rights represented by the attached
Common Stock Rights Certificate to purchase the shares of Series A Preferred
Stock issuable upon the exercise of such Voting Class Rights and requests that
certificates for such shares be issued in the name of:
Name: ___________________________________
Address: ___________________________________
___________________________________
Social Security
or Other Taxpayer
Identification Number:_______________________________
If such number of Voting Class Rights shall not be all the Voting
Class Rights evidenced by this Common Stock Rights Certificate, a
new Common Stock Rights Certificate for the balance of such
Voting Class Rights shall be registered in the name of and
delivered to:
Name: ___________________________________
Address: ___________________________________
___________________________________
Social Security
or Other Taxpayer
Identification Number:_______________________________
Dated: _______________, ____
Signature Guaranteed:
______________________________________
Signature
64
(Signature must correspond to name as
written upon the face of the attached
Common Stock Rights Certificate in
every particular, without alteration
or enlargement or any change
whatsoever)
Signatures must be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee Medallion program), pursuant to
Exchange Act Rule 17Ad-15.
_______________________________________________________
(To be completed if true)
The undersigned hereby represents, for the benefit of all holders of
Rights and Common Shares, that the Voting Class Rights evidenced by the attached
Common Stock Rights Certificate are not, and, to the knowledge of the
undersigned, have never been, Beneficially Owned by an Acquiring Person or an
Affiliate or Associate thereof (as defined in the Rights Agreement).
____________________________________
Signature
_______________________________________________________
NOTICE
In the event the certification set forth above is not completed in
connection with a purported exercise, the Company will deem the Beneficial Owner
of the Voting Class Rights evidenced by the attached Common Stock Rights
Certificate to be an Acquiring Person or an Affiliate or Associate thereof (as
defined in the Rights Agreement) or a transferee of any of the foregoing and
accordingly will deem the Voting Class Rights evidenced by such Common Stock
Rights Certificate to be void and not transferable or exercisable.
-2-
65
EXHIBIT B
[Form of Nonvoting Common Stock Rights Certificate]
Certificate No. W- _________ Nonvoting Class Rights
THE NONVOTING CLASS RIGHTS ARE SUBJECT TO REDEMPTION OR MANDATORY
EXCHANGE, AT THE OPTION OF THE COMPANY, ON THE TERMS SET FORTH IN
THE RIGHTS AGREEMENT. NONVOTING CLASS RIGHTS BENEFICIALLY OWNED BY
ACQUIRING PERSONS OR AFFILIATES OR ASSOCIATES THEREOF (AS SUCH
TERMS ARE DEFINED IN THE RIGHTS AGREEMENT) OR TRANSFEREES OF ANY
OF THE FOREGOING WILL BE VOID.
Nonvoting Class Rights Certificate
The ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group, Inc.
This certifies that ____________________, or registered assigns, is
the registered holder of the number of Nonvoting Class Rights set forth above,
each of which entitles the registered holder thereof, subject to the terms,
provisions and conditions of the Stockholder Protection Rights Agreement, dated
as of April 5, 1999 (as amended from time to time, the "Rights Agreement"),
between The ▇▇▇▇▇▇▇ Sachs Group, Inc., a Delaware corporation (the "Company"),
and ChaseMellon Shareholder Services, L.L.C., a New Jersey limited liability
company, as Rights Agent (the "Rights Agent", which term shall include any
successor Rights Agent under the Rights Agreement), to purchase from the Company
at any time after the Separation Time (as such term is defined in the Rights
Agreement) and prior to the close of business on April 5, 2009, one
one-hundredth of a fully paid share of Series B Participating Preferred Stock,
par value $0.01 per share (the "Series B Preferred Stock"), of the Company
(subject to adjustment as provided in the Rights Agreement) at the Exercise
Price referred to below, upon presentation and
66
surrender of this Nonvoting Common Stock Rights Certificate with the Form of
Election to Exercise duly executed at the office of the Rights Agent in The City
of New York designated for such purpose. The Exercise Price shall initially be
$250.00 per Nonvoting Class Right and shall be subject to adjustment in certain
events as provided in the Rights Agreement.
In certain circumstances described in the Rights Agreement, the
Nonvoting Class Rights evidenced hereby may entitle the registered holder
thereof to purchase securities of an entity other than the Company or securities
of the Company other than Series B Preferred Stock or assets of the Company, all
as provided in the Rights Agreement.
This Nonvoting Common Stock Rights Certificate is subject to all of
the terms, provisions and conditions of the Rights Agreement, which terms,
provisions and conditions are hereby incorporated herein by reference and made a
part hereof and to which Rights Agreement reference is hereby made for a full
description of the rights, limitations of rights, obligations, duties and
immunities hereunder of the Rights Agent, the Company and the holders of the
Nonvoting Common Stock Rights Certificates. Copies of the Rights Agreement are
on file at the principal office of the Company and are available without cost
upon written request.
This Nonvoting Common Stock Rights Certificate, with or without
other Nonvoting Common Stock Rights Certificates, upon surrender at the office
of the Rights Agent designated for such purpose, may be exchanged for another
Nonvoting Common Stock Rights Certificate or Nonvoting Common Stock Rights
Certificates of like tenor
-2-
67
evidencing an aggregate number of Nonvoting Class Rights equal to the aggregate
number of Nonvoting Class Rights evidenced by the Nonvoting Common Stock Rights
Certificate or Nonvoting Common Stock Rights Certificates surrendered. If this
Nonvoting Common Stock Rights Certificate shall be exercised in part, the
registered holder shall be entitled to receive, upon surrender hereof, another
Nonvoting Common Stock Rights Certificate or Nonvoting Common Stock Rights
Certificates for the number of whole Nonvoting Class Rights not exercised.
Subject to the provisions of the Rights Agreement, each Nonvoting
Class Right evidenced by this Nonvoting Common Stock Rights Certificate may be
(a) redeemed by the Company under certain circumstances, at its option, at a
redemption price of $0.01 per Nonvoting Class Right or (b) exchanged by the
Company under certain circumstances, at its option, for one share of Nonvoting
Common Stock or one one-hundredth of a share of Series B Preferred Stock per
Nonvoting Class Right (or, in certain cases, other securities or assets of the
Company), subject in each case to adjustment in certain events as provided in
the Rights Agreement.
No holder of this Nonvoting Common Stock Rights Certificate, as
such, shall be entitled to vote or receive dividends or be deemed for any
purpose the holder of any securities which may at any time be issuable on the
exercise hereof, nor shall anything contained in the Rights Agreement or herein
be construed to confer upon the holder hereof, as such, any of the rights of a
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
-3-
68
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 Nonvoting Class Rights evidenced by this Nonvoting Common
Stock Rights Certificate shall have been exercised or exchanged as provided in
the Rights Agreement.
This Nonvoting Common Stock Rights Certificate shall not be valid or
obligatory for any purpose until it shall have been countersigned by the Rights
Agent.
WITNESS the facsimile signature of the proper officers of the
Company and its corporate seal.
Date: ____________
ATTEST: THE ▇▇▇▇▇▇▇ ▇▇▇▇▇ GROUP, INC.
______________________________ By_________________________________
Secretary Name:
Title:
Countersigned:
CHASEMELLON SHAREHOLDER
SERVICES, L.L.C.
By____________________________
Authorized Signature
-4-
69
[Form of Reverse Side of Nonvoting Common Stock Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder desires to
transfer this Nonvoting Common Stock Rights Certificate.)
FOR VALUE RECEIVED ________________________ hereby
sells, assigns and transfers unto______________________________________________
________________________________________________________
(Please print name and address of transferee)
this Nonvoting Common Stock Rights Certificate, together with all right, title
and interest therein, and does hereby irrevocably constitute and appoint
_______________ Attorney, to transfer the within Nonvoting Common Stock Rights
Certificate on the books of the within-named Company, with full power of
substitution.
Dated: _______________, ____
Signature Guaranteed: _____________________________________
Signature
(Signature must correspond to name
as written upon the face of this
Common Stock Rights Certificate
in every particular, without
alteration or enlargement or any
change whatsoever)
Signatures must be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee Medallion program), pursuant to
Exchange Act Rule 17Ad-15.
70
_______________________________________________________
(To be completed if true)
The undersigned hereby represents, for the benefit of all holders of Rights and
Common Shares, that the Nonvoting Class Rights evidenced by this Nonvoting
Common Stock Rights Certificate are not, and, to the knowledge of the
undersigned, have never been, Beneficially Owned by an Acquiring Person or an
Affiliate or Associate thereof (as defined in the Rights Agreement).
_____________________________________
Signature
_______________________________________________________
NOTICE
In the event the certification set forth above is not completed in
connection with a purported assignment, the Company will deem the Beneficial
Owner of the Nonvoting Class Rights evidenced by the enclosed Nonvoting Common
Stock Rights Certificate to be an Acquiring Person or an Affiliate or Associate
thereof (as defined in the Rights Agreement) or a transferee of any of the
foregoing and accordingly will deem the Nonvoting Common Stock Rights evidenced
by such Nonvoting Class Rights Certificate to be void and not transferable or
exercisable.
-2-
71
[To be attached to each Nonvoting Common Stock Rights Certificate]
FORM OF ELECTION TO EXERCISE
(To be executed if holder desires to exercise
the Nonvoting Common Stock Rights Certificate.)
TO: THE ▇▇▇▇▇▇▇ ▇▇▇▇▇ GROUP, INC.
The undersigned hereby irrevocably elects to exercise
_______________________ whole Nonvoting Class Rights represented by the attached
Nonvoting Common Stock Rights Certificate to purchase the shares of Series B
Preferred Stock issuable upon the exercise of such Nonvoting Class Rights and
requests that certificates for such shares be issued in the name of:
Name: ___________________________________
Address: ___________________________________
___________________________________
Social Security
or Other Taxpayer
Identification Number:_______________________________
If such number of Nonvoting Class Rights shall not be all the Nonvoting Class
Rights evidenced by this Nonvoting Common Stock Rights Certificate, a new
Nonvoting Common Stock Rights Certificate for the balance of such Nonvoting
Class Rights shall be registered in the name of and delivered to:
Name: ___________________________________
Address: ___________________________________
___________________________________
Social Security
or Other Taxpayer
Identification Number:_______________________________
Dated: _______________, ____
Signature Guaranteed:
______________________________________
Signature
72
(Signature must correspond to name as
written upon the face of the attached
Nonvoting Common Stock Rights
Certificate in every particular,
without alteration or enlargement or
any change whatsoever)
Signatures must be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee Medallion program), pursuant to
Exchange Act Rule 17Ad-15.
_______________________________________________________
(To be completed if true)
The undersigned hereby represents, for the benefit of all holders of
Rights and Common Shares, that the Nonvoting Class Rights evidenced by the
attached Nonvoting Common Stock Rights Certificate are not, and, to the
knowledge of the undersigned, have never been, Beneficially Owned by an
Acquiring Person or an Affiliate or Associate thereof (as defined in the Rights
Agreement).
_____________________________________
Signature
_______________________________________________________
NOTICE
In the event the certification set forth above is not completed in
connection with a purported exercise, the Company will deem the Beneficial Owner
of the Nonvoting Class Rights evidenced by the attached Nonvoting Common Stock
Rights Certificate to be an Acquiring Person or an Affiliate or Associate
thereof (as defined in the Rights Agreement) or a transferee of any of the
foregoing and accordingly will deem the Nonvoting Class Rights evidenced by such
Nonvoting Common Stock Rights Certificate to be void and not transferable or
exercisable.
-2-
73
EXHIBIT C
FORM OF CERTIFICATE OF DESIGNATION AND TERMS OF SERIES A
PARTICIPATING PREFERRED STOCK OF THE ▇▇▇▇▇▇▇ ▇▇▇▇▇ GROUP, INC.
Pursuant to Section 151 of the General
Corporation Law of the State of Delaware
We, the undersigned, __________________ and ____________________,
the ____________________, and __________, respectively, of The ▇▇▇▇▇▇▇ Sachs
Group, Inc., a Delaware corporation (the "Corporation"), do hereby certify as
follows:
Pursuant to authority granted by Article FOURTH of the Amended and
Restated Certificate of Incorporation of the Corporation, and in accordance with
the provisions of Section 151 of the General Corporation Law of the State of
Delaware, the Board of Directors of the Corporation has adopted the following
resolutions fixing the designation and certain terms, powers, preferences and
other rights of a new series of the Corporation's Preferred Stock, par value
$0.01 per share, and certain qualifications, limitations and restrictions
thereon:
RESOLVED, that there is hereby established a series of Preferred
Stock, par value $0.01 per share, of the Corporation, and the designation
and certain terms, powers, preferences and other rights of the shares of
such series, and certain qualifications, limitations and restrictions
thereon, are hereby fixed as follows:
(i) The distinctive serial designation of this series shall be
"Series A Participating Preferred Stock" (hereinafter called "this
Series"). Each share of this Series shall be identical in all
respects with the other shares of this Series except as to the dates
from and after which dividends thereon shall be cumulative.
(ii) The number of shares in this Series shall initially be
_______, which number may from time to time be increased or
decreased (but not below the number then outstanding) by the Board
of Directors. Shares of
74
this Series purchased by the Corporation shall be cancelled and
shall revert to authorized but unissued shares of Preferred Stock
undesignated as to series. Shares of this Series may be issued in
fractional shares, which fractional shares shall entitle the holder,
in proportion to such holder's fractional share, to all rights of a
holder of a whole share of this Series.
(iii) The holders of full or fractional shares of this Series
shall be entitled to receive, when and as declared by the Board of
Directors, but only out of funds legally available therefor,
dividends, (A) on each date that dividends or other distributions
(other than dividends or distributions payable in Common Stock of
the Corporation) are payable on or in respect of Common Stock
comprising part of the Reference Package (as defined below), in an
amount per whole share of this Series equal to the aggregate amount
of dividends or other distributions (other than dividends or
distributions payable in Common Stock of the Corporation) that would
be payable on such date to a holder of the Reference Package and (B)
on the last day of March, June, September and December in each year,
in an amount per whole share of this Series equal to the excess (if
any) of $____* over the aggregate dividends paid per whole share of
this Series during the three month period ending on such last day.
Each such dividend shall be paid to the holders of record of shares
of this Series on the date, not exceeding sixty days preceding such
dividend or distribution payment date, fixed for the purpose by the
Board of Directors in advance of payment of each particular dividend
or distribution. Dividends on each full and each fractional share of
this Series shall be cumulative from the date such full or
fractional share is originally issued; provided that any such full
or fractional share originally issued after a dividend record date
and on or prior to the dividend payment date to which such record
date relates shall not be entitled to receive the dividend payable
on such dividend payment date or any amount in respect of the period
from such original issuance to such dividend payment date.
The term "Reference Package" shall initially mean 100
shares of Common Stock, par value $0.01 per share ("Common Stock"),
of the Corporation. In the event the Corporation shall at any time
--------------
* Insert an amount equal to 1/4 of 1% of the Exercise Price divided by
the number of shares of Series A Preferred Stock purchasable upon
exercise of one Right.
-2-
75
after the close of business on ________, ____* (A) declare or pay a
dividend on any Common Stock payable in Common Stock, (B) subdivide
any Common Stock or (C) combine any Common Stock into a smaller
number of shares, then and in each such case the Reference Package
after such event shall be the Common Stock that a holder of the
Reference Package immediately prior to such event would hold
thereafter as a result thereof.
Holders of shares of this Series shall not be entitled
to any dividends, whether payable in cash, property or stock, in
excess of full cumulative dividends, as herein provided on this
Series. This Series shall rank pari passu in all respects with the
Series B Participating Preferred Stock of the Company except with
respect to voting rights.
So long as any shares of this Series are outstanding, no
dividend (other than a dividend in Common Stock or in any other
stock ranking junior to this Series as to dividends and upon
liquidation) shall be declared or paid or set aside for payment or
other distribution declared or made upon the Common Stock or
Nonvoting Common Stock or upon any other stock ranking junior to
this Series as to dividends or upon liquidation, unless the full
cumulative dividends (including the dividend to be paid upon payment
of such dividend or other distribution) on all outstanding shares of
this Series shall have been, or shall contemporaneously be, paid.
When dividends are not paid in full upon this Series and any other
stock ranking on a parity as to dividends with this Series, all
dividends declared upon shares of this Series and any other stock
ranking on a parity as to dividends shall be declared pro rata so
that in all cases the amount of dividends declared per share on this
Series and such other stock shall bear to each other the same ratio
that accumulated dividends per share on the shares of the Series and
such other stock bear to each other. Neither the Common Stock or
Nonvoting Common Stock nor any other stock of the Corporation
ranking junior to or on a parity with this Series as to dividends or
upon liquidation shall be redeemed, purchased or otherwise acquired
for any consideration (or any moneys be paid to or made available
for a sinking fund for the redemption of any shares of any such
stock) by the Corporation (except by conversion into or exchange for
stock of the Corporation ranking junior to this Series as to
dividends and
-------------------------
* For a certificate of designation relating to shares to be issued
pursuant to Section 2.3 of the Rights Agreement, insert the
Separation Time. For a certificate of designation relating to shares
to be issued pursuant to Section 3.1(d) of the Rights Agreement,
insert the Flip-in Date.
-3-
76
upon liquidation), unless the full cumulative dividends (including
the dividend to be paid upon payment of such redemption, purchase or
other acquisition) on all outstanding shares of this Series shall
have been, or shall contemporaneously be, paid.
(iv) In the event of any merger, consolidation,
reclassification or other transaction in which the Common Shares are
exchanged for or changed into other stock or securities, cash and/or
any other property, then in any such case the shares of this Series
shall at the same time be similarly exchanged or changed in an
amount per whole share equal to the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as the
case may be, that a holder of the Reference Package would be
entitled to receive as a result of such transaction.
(v) In the event of any liquidation, dissolution or winding up
of the affairs of the Corporation, whether voluntary or involuntary,
the holders of full and fractional shares of this Series shall be
entitled, before any distribution or payment is made on any date to
the holders of the Common Stock or Nonvoting Common Stock or any
other stock of the Corporation ranking junior to this Series upon
liquidation, to be paid in full an amount per whole share of this
Series equal to the greater of (A) $__________* or (B) the aggregate
amount distributed or to be distributed prior to such date in
connection with such liquidation, dissolution or winding up to a
holder of the Reference Package (such greater amount being
hereinafter referred to as the "Liquidation Preference"), together
with accrued dividends to such distribution or payment date, whether
or not earned or declared. If such payment shall have been made in
full to all holders of shares of this Series, the holders of shares
of this Series as such shall have no right or claim to any of the
remaining assets of the Corporation.
In the event the assets of the Corporation available for
distribution to the holders of shares of this Series upon any
liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary, shall be insufficient to pay in full all
amounts to which such holders are entitled pursuant to the first
paragraph of this Section (v), no such distribution shall be made on
account of any shares of any other class or series of Preferred
Stock ranking on a parity with the shares of this Series upon such
liquidation, dissolution or winding up unless proportionate
distributive amounts shall be paid on account of the shares
-------------------------
* Insert an amount equal to 100 times the Exercise Price in
effect as of the Separation Time.
-4-
77
of this Series, ratably in proportion to the full distributable
amounts for which holders of all such parity shares are respectively
entitled upon such liquidation, dissolution or winding up.
Upon the liquidation, dissolution or winding up of the
Corporation, the holders of shares of this Series then outstanding
shall be entitled to be paid out of assets of the Corporation
available for distribution to its stockholders all amounts to which
such holders are entitled pursuant to the first paragraph of this
Section (v) before any payment shall be made to the holders of
Common Stock or Nonvoting Common Stock or any other stock of the
Corporation ranking junior upon liquidation to this Series.
For the purposes of this Section (v), the consolidation
or merger of, or binding share exchange by, the Corporation with any
other corporation shall not be deemed to constitute a liquidation,
dissolution or winding up of the Corporation.
(vi) The shares of this Series shall not be redeemable.
(vii) In addition to any other vote or consent of stockholders
required by law or by the Amended and Restated Certificate of
Incorporation, as amended, of the Corporation, each whole share of
this Series shall, on any matter, vote as a class with any other
capital stock comprising part of the Reference Package and voting on
such matter and shall have the number of votes thereon that a holder
of the Reference Package would have.
IN WITNESS WHEREOF, the undersigned have signed and attested this
certificate on the ____ day of _________, _____.
_______________________________________
Attest:
_____________________
-5-
78
EXHIBIT D
FORM OF CERTIFICATE OF DESIGNATION AND TERMS OF SERIES B
PARTICIPATING PREFERRED STOCK OF THE ▇▇▇▇▇▇▇ ▇▇▇▇▇ GROUP, INC.
Pursuant to Section 151 of the General
Corporation Law of the State of Delaware
We, the undersigned, __________________ and ____________________,
the ____________________, and __________, respectively, of The ▇▇▇▇▇▇▇ Sachs
Group, Inc., a Delaware corporation (the "Corporation"), do hereby certify as
follows:
Pursuant to authority granted by Article FOURTH of the Amended and
Restated Certificate of Incorporation of the Corporation, and in accordance with
the provisions of Section 151 of the General Corporation Law of the State of
Delaware, the Board of Directors of the Corporation has adopted the following
resolutions fixing the designation and certain terms, powers, preferences and
other rights of a new series of the Corporation's Preferred Stock, par value
$0.01 per share, and certain qualifications, limitations and restrictions
thereon:
RESOLVED, that there is hereby established a series of Preferred
Stock, par value $0.01 per share, of the Corporation, and the designation
and certain terms, powers, preferences and other rights of the shares of
such series, and certain qualifications, limitations and restrictions
thereon, are hereby fixed as follows:
(i) The distinctive serial designation of this series shall be
"Series B Participating Preferred Stock" (hereinafter called "this
Series"). Each share of this Series shall be identical in all
respects with the other shares of this Series except as to the dates
from and after which dividends thereon shall be cumulative.
(ii) The number of shares in this Series shall initially be
_______, which number may from time to time be increased or
decreased (but not below the number then outstanding) by the Board
of Directors. Shares of
79
this Series purchased by the Corporation shall be cancelled and
shall revert to authorized but unissued shares of Preferred Stock
undesignated as to series. Shares of this Series may be issued in
fractional shares, which fractional shares shall entitle the holder,
in proportion to such holder's fractional share, to all rights of a
holder of a whole share of this Series.
(iii) The holders of full or fractional shares of this Series
shall be entitled to receive, when and as declared by the Board of
Directors, but only out of funds legally available therefor,
dividends, (A) on each date that dividends or other distributions
(other than dividends or distributions payable in Nonvoting Common
Stock of the Corporation) are payable on or in respect of Nonvoting
Common Stock comprising part of the Reference Package (as defined
below), in an amount per whole share of this Series equal to the
aggregate amount of dividends or other distributions (other than
dividends or distributions payable in Nonvoting Common Stock of the
Corporation) that would be payable on such date to a holder of the
Reference Package and (B) on the last day of March, June, September
and December in each year, in an amount per whole share of this
Series equal to the excess (if any) of $____* over the aggregate
dividends paid per whole share of this Series during the three month
period ending on such last day. Each such dividend shall be paid to
the holders of record of shares of this Series on the date, not
exceeding sixty days preceding such dividend or distribution payment
date, fixed for the purpose by the Board of Directors in advance of
payment of each particular dividend or distribution. Dividends on
each full and each fractional share of this Series shall be
cumulative from the date such full or fractional share is originally
issued; provided that any such full or fractional share originally
issued after a dividend record date and on or prior to the dividend
payment date to which such record date relates shall not be entitled
to receive the dividend payable on such dividend payment date or any
amount in respect of the period from such original issuance to such
dividend payment date.
The term "Reference Package" shall initially mean 100
shares of Nonvoting Common Stock, par value $0.01 per share
("Nonvoting Common Stock"), of the Corporation. In the event the
------------------
* Insert an amount equal to 1/4 of 1% of the Exercise Price divided by
the number of shares of Series B Preferred Stock purchasable upon
exercise of one Right.
-2-
80
Corporation shall at any time after the close of business on
________, ____* (A) declare or pay a dividend on any Nonvoting
Common Stock payable in Nonvoting Common Stock, (B) subdivide any
Nonvoting Common Stock or (C) combine any Nonvoting Common Stock
into a smaller number of shares, then and in each such case the
Reference Package after such event shall be the Nonvoting Common
Stock that a holder of the Reference Package immediately prior to
such event would hold thereafter as a result thereof.
Holders of shares of this Series shall not be entitled
to any dividends, whether payable in cash, property or stock, in
excess of full cumulative dividends, as herein provided on this
Series. This Series shall rank pari passu in all respects with the
Series A Participating Preferred Stock of the Company except with
respect to voting rights.
So long as any shares of this Series are outstanding, no
dividend (other than a dividend in Nonvoting Common Stock or in any
other stock ranking junior to this Series as to dividends and upon
liquidation) shall be declared or paid or set aside for payment or
other distribution declared or made upon the Common Stock or
Nonvoting Common Stock or upon any other stock ranking junior to
this Series as to dividends or upon liquidation, unless the full
cumulative dividends (including the dividend to be paid upon payment
of such dividend or other distribution) on all outstanding shares of
this Series shall have been, or shall contemporaneously be, paid.
When dividends are not paid in full upon this Series and any other
stock ranking on a parity as to dividends with this Series, all
dividends declared upon shares of this Series and any other stock
ranking on a parity as to dividends shall be declared pro rata so
that in all cases the amount of dividends declared per share on this
Series and such other stock shall bear to each other the same ratio
that accumulated dividends per share on the shares of the Series and
such other stock bear to each other. Neither the Common Stock or
Nonvoting Common Stock nor any other stock of the Corporation
ranking junior to or on a parity with this Series as to dividends or
upon liquidation shall be redeemed, purchased or otherwise acquired
for any consideration (or any moneys be paid to or made available
for a sinking fund for the redemption of any shares of any such
stock) by the Corporation (except by conversion into or exchange for
--------------------
* For a certificate of designation relating to shares to be issued
pursuant to Section 2.3 of the Rights Agreement, insert the
Separation Time. For a certificate of designation relating to shares
to be issued pursuant to Section 3.1(d) of the Rights Agreement,
insert the Flip-in Date.
-3-
81
stock of the Corporation ranking junior to this Series as to
dividends and upon liquidation), unless the full cumulative
dividends (including the dividend to be paid upon payment of such
redemption, purchase or other acquisition) on all outstanding shares
of this Series shall have been, or shall contemporaneously be, paid.
(iv) In the event of any merger, consolidation,
reclassification or other transaction in which the Common Shares are
exchanged for or changed into other stock or securities, cash and/or
any other property, then in any such case the shares of this Series
shall at the same time be similarly exchanged or changed in an
amount per whole share equal to the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as the
case may be, that a holder of the Reference Package would be
entitled to receive as a result of such transaction.
(v) In the event of any liquidation, dissolution or winding up
of the affairs of the Corporation, whether voluntary or involuntary,
the holders of full and fractional shares of this Series shall be
entitled, before any distribution or payment is made on any date to
the holders of the Common Stock or Nonvoting Common Stock or any
other stock of the Corporation ranking junior to this Series upon
liquidation, to be paid in full an amount per whole share of this
Series equal to the greater of (A) $__________* or (B) the aggregate
amount distributed or to be distributed prior to such date in
connection with such liquidation, dissolution or winding up to a
holder of the Reference Package (such greater amount being
hereinafter referred to as the "Liquidation Preference"), together
with accrued dividends to such distribution or payment date, whether
or not earned or declared. If such payment shall have been made in
full to all holders of shares of this Series, the holders of shares
of this Series as such shall have no right or claim to any of the
remaining assets of the Corporation.
In the event the assets of the Corporation available for
distribution to the holders of shares of this Series upon any
liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary, shall be insufficient to pay in full all
amounts to which such holders are entitled pursuant to the first
paragraph of this Section (v), no such distribution shall be made on
account of any shares of any other class or series of Preferred
Stock ranking on a parity with the shares of this Series upon such
liquidation, dissolution or winding up unless
---------------------
* Insert an amount equal to 100 times the Exercise Price in effect as
of the Separation Time.
-4-
82
proportionate distributive amounts shall be paid on account of the
shares of this Series, ratably in proportion to the full
distributable amounts for which holders of all such parity shares
are respectively entitled upon such liquidation, dissolution or
winding up.
Upon the liquidation, dissolution or winding up of the
Corporation, the holders of shares of this Series then outstanding
shall be entitled to be paid out of assets of the Corporation
available for distribution to its stockholders all amounts to which
such holders are entitled pursuant to the first paragraph of this
Section (v) before any payment shall be made to the holders of
Common Stock or Nonvoting Common Stock or any other stock of the
Corporation ranking junior upon liquidation to this Series.
For the purposes of this Section (v), the consolidation
or merger of, or binding share exchange by, the Corporation with any
other corporation shall not be deemed to constitute a liquidation,
dissolution or winding up of the Corporation.
(vi) The shares of this Series shall not be redeemable.
(vii) Each whole share of this Series shall have no voting
rights other than such rights as may be required by law.
(viii) If there are no shares of Nonvoting Common Stock
outstanding, a holder of shares of this Series may, at its option,
convert such shares into the same number of shares of Series A
Participating Preferred Stock of the Corporation. If a holder elects
not to convert the shares of this Series, the Reference Package
shall be deemed to refer to 100 shares of Common Stock, par value
$0.01 per share, of the Corporation and all references to Nonvoting
Common Stock in paragraph (iii) hereof shall be deemed to refer to
the Common Stock.
IN WITNESS WHEREOF, the undersigned have signed and attested this
certificate on the ____ day of _________, _____.
___________________________________
Attest:
_______________________
-5-