EXHIBIT 4.3
RIGHTS AGREEMENT
DATED AS OF OCTOBER 1, 1998
BY AND BETWEEN
▇▇▇▇▇ FINANCIAL
AND
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.,
AS RIGHTS AGENT
TABLE OF CONTENTS
Page
Section 1. Certain Definitions ............................................ 1
Section 2. Appointment of Rights Agent..................................... 7
Section 3. Issuance of Right Certificates.................................. 7
Section 4. Form of Right Certificates...................................... 9
Section 5. Countersignature and Registration............................... 9
Section 6. Transfer, Split Up, Combination and Exchange of Right
Certificates; Mutilated, Destroyed, Lost or Stolen Right
Certificates.................................................. 10
Section 7. Exercise of Rights.............................................. 10
Section 8. Cancellation and Destruction of Right Certificates.............. 13
Section 9. Reservation and Availability of Capital Stock................... 13
Section 10. Securities Record Date.......................................... 14
Section 11. Adjustment of Exercise Price, Number of Shares Issuable
Upon Exercise of Rights or Number of Rights................... 14
Section 12. Certificate of Adjusted Exercise Price or Number of
Shares Issuable Upon Exercise of Rights....................... 20
Section 13. Consolidation, Merger, or Sale or Transfer of Assets or
Earning Power................................................. 20
Section 14. Fractional Rights and Fractional Shares......................... 22
Section 15. Rights of Action................................................ 23
Section 16. Agreement of Right Holders...................................... 23
Section 17. Right Holder and Right Certificate Holder Not Deemed a
Stockholder................................................... 24
Section 18. Concerning the Rights Agent..................................... 24
Section 19. Merger or Consolidation or Change of Name of Rights Agent....... 25
Section 20. Duties of Rights Agent.......................................... 25
Section 21. Change of Rights Agent.......................................... 27
Section 22. Issuance of New Right Certificates.............................. 28
Section 23. Redemption of Rights............................................ 28
Section 24. Exchange of Rights.............................................. 29
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Section 25. Notice of Certain Events....................................... 30
Section 26. Notices........................................................ 31
Section 27. Supplements and Amendments..................................... 31
Section 28. Certain Covenants.............................................. 32
Section 29. Successors..................................................... 32
Section 30. Benefits of this Agreement..................................... 32
Section 31. Severability................................................... 33
Section 32. Governing Law.................................................. 33
Section 33. Counterparts................................................... 33
Section 34. Descriptive Headings........................................... 33
Exhibit A Form of Right Certificate........................................ 1
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RIGHTS AGREEMENT
This Rights Agreement ("Agreement") is made and entered into as of the 1st
day of October, 1998 by and between ▇▇▇▇▇ Financial, a Delaware corporation
(the "Company"), and ChaseMellon Shareholder Services, L.L.C. (the "Rights
Agent").
WHEREAS, the Board of Directors of the Company has authorized and declared
a dividend of one preferred stock purchase right (a "Right") for each Common
Share (as hereinafter defined) of the Company, which dividend is payable on
October 1, 1998 (the "Record Date") to the holders of record of Common Shares
as of the Close of Business (as hereinafter defined) on such date;
WHEREAS, the Board of Directors of the Company has further authorized and
directed the issuance of one (subject to adjustment of such number as provided
in this Agreement) Right for (A) each Common Share that shall be issued by the
Company at any time after the Record Date and prior to the earliest of the date
of the first Section 11(a)(ii) Event, the date of the first Section 13(a)
Event, the Redemption Date or the Expiration Date (as such terms are
hereinafter defined), and (B) each Common Share that shall be issued by the
Company at any time on or after the earlier of the date of the first
Section 11(a)(ii) Event or the date of the first Section 13(a) Event and prior
to the earlier of the Redemption Date or the Expiration Date pursuant to the
exercise of conversion rights, exchange rights, rights (other than Rights),
warrants or options that shall have been issued or granted prior to the earlier
of the date of the first Section 11(a)(ii) Event or the date of the first
Section 13(a) Event, unless the Board of Directors shall provide otherwise at
the time of the issuance or grant of such conversion rights, exchange rights,
rights (other than Rights), warrants or options; and
WHEREAS, in connection with the matters referred to herein, the Company
desires to appoint the Rights Agent to act on behalf of the Company for the
benefit of the holders of Rights, and the Rights Agent is willing so to act;
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
agreements set forth herein, and for the benefit of the holders of Rights, the
parties hereto hereby agree as follows:
Section 1. CERTAIN DEFINITIONS. For purposes of this Agreement, the
following terms have the meanings indicated:
(a) "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 promulgated under the Exchange Act, as in
effect on the date hereof.
(b) A Person shall be deemed the "Beneficial Owner" of and shall be
deemed to "Beneficially Own":
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(i) any securities that such Person or any of such Person's
Affiliates or Associates beneficially owns, directly or indirectly, for
purposes of Section 13(d) of the Exchange Act and Rule 13d-3 promulgated
under the Exchange Act, in each case as in effect on the date hereof;
(ii) any securities that such Person or any of such Person's
Affiliates or Associates has the right to acquire (whether such right is
exercisable immediately, or only after the passage of time, compliance
with regulatory requirements, the fulfillment of a condition, or
otherwise) pursuant to any agreement, arrangement or understanding, or
upon the exercise of conversion rights, exchange rights, rights (other
than the Rights), warrants or options, or otherwise, provided that a
Person shall not be deemed the Beneficial Owner of, or to Beneficially
Own, securities tendered pursuant to a tender offer or exchange offer made
by or on behalf of such Person or any of such Person's Affiliates or
Associates until such tendered securities are accepted for purchase or
exchange;
(iii) any securities that such Person or any of such
Person's Affiliates or Associates has the right to vote, alone or in
concert with others, pursuant to any agreement, arrangement or
understanding, provided that a Person shall not be deemed the Beneficial
Owner of, or to Beneficially Own, any security if the agreement,
arrangement or understanding to vote such security (A) arises solely from
a revocable proxy given to such Person or any of such Person's Affiliates
or Associates in response to a public proxy solicitation made pursuant to
and in accordance with the applicable rules and regulations of the
Exchange Act, and (B) is not also then reportable on Schedule 13D under
the Exchange Act (or any comparable or successor report);
(iv) any securities that are Beneficially Owned, directly or
indirectly, by any other Person with which such Person or any of such
Person's Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting (other than
voting pursuant to a revocable proxy as described in the proviso to
Section 1(b)(iii) hereof) or disposing of any securities of the Company;
and
(v) on any day on or after the Distribution Date, all Rights
that prior to such date were represented by certificates for Common Shares
that such Person Beneficially Owns on such day.
Notwithstanding anything to the contrary in this Section 1(b), a
Person engaged in business as an underwriter of securities shall not be deemed
to be the Beneficial Owner of, or to Beneficially Own, any securities acquired
through such Person's participation in good faith in a firm commitment
underwriting until the expiration of 40 days after the date of such
acquisition.
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(c) "Business Day" shall mean any day other than a Saturday, a
Sunday or a day on which banking institutions in the States of New York or
California are authorized or obligated by law or executive order to close.
(d) "Close of Business" on any given date shall mean
5:00 o'clock p.m., California time, on such date; PROVIDED, HOWEVER, that if
such date is not a Business Day, it shall mean 5:00 o'clock p.m., California
time, on the next succeeding Business Day.
(e) "Closing Price" of a stock or other security on any day shall be
the last sale price, regular way, per share of such stock or unit of such other
security on such day or, in case no such sale takes place on such day, the
average of the closing bid and asked prices, regular way, in either case as
reported in the principal consolidated transaction reporting system with
respect to securities listed or admitted to trading on the New York Stock
Exchange or, if such stock or other security is not listed or admitted to
trading on the New York Stock Exchange, as reported in the principal
consolidated transaction reporting system with respect to securities listed on
the principal national securities exchange on which such stock or other
security is listed or admitted to trading or, if such stock or other security
is not listed or admitted to trading on any national securities exchange, the
last quoted sale price or, if not so quoted, the average of the high bid and
low asked prices in the over-the-counter market, as reported by the National
Association of Securities Dealers, Inc. Automated Quotations System ("NASDAQ")
or such other system then in use or, if on any such date such stock or other
security is not quoted by any such organization, the average of the closing bid
and asked prices as furnished by a professional market maker that makes a
market in such stock or other security and that is selected by the Board of
Directors of the Company.
(f) "Common Share" shall mean one share of the common stock, par
value $0.01 per share, of the Company, unless used with reference to a Person
other than the Company, in which case it shall mean one share of the class of
capital stock (or equity interest) of such other Person having the greatest
voting power per share or, if such Person is a Subsidiary of another Person, of
the Person that ultimately controls such Person.
(g) "Common Share Equivalent" shall have the meaning ascribed to it
in Section 11(a)(iii) hereof.
(h) "Current Market Price" per share of a stock or unit of any other
security on any date shall mean the average of the daily Closing Prices of such
stock or other security for the 30 consecutive Trading Days through and
including the Trading Day immediately preceding the date in question; PROVIDED,
HOWEVER, that if any event shall have caused the Closing Price on any Trading
Day during such 30-day period not to be fully comparable with the Closing Price
on the date in question (or, if no Closing Price is available on the date in
question, on the Trading Day immediately preceding the date in question), then
each such noncomparable Closing Price so used shall be appropriately adjusted
by the Board of Directors of the Company in order to make the Closing Price on
each Trading Day during the period used for the determination of the Current
Market Price fully comparable with the
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Closing Price on such date in question (or, if applicable, the immediately
preceding Trading Day). "Current Market Price" per share of any stock or
unit of such other security that is not publicly held or so listed or traded,
and "Current Market Price" of any other property, shall mean the fair value
per share of such stock or unit of such other security, or the fair value of
such other property, respectively, as determined in good faith by the Board
of Directors of the Company based upon such appraisals or valuation reports
of such independent experts as the Board of Directors shall in good faith
determine appropriate, which determination shall be described in a statement
filed by the Company with the Rights Agent. Notwithstanding the foregoing,
for purposes of Section 11 hereof "Current Market Price Per Share" as to
Preferred Shares shall be determined as set forth in Section 11(d).
(i) "Distribution Date" shall have the meaning ascribed to it in
Section 3 hereof.
(j) "Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
(k) "Exchange Ratio" shall have the meaning ascribed to it in
Section 24(a) hereof.
(l) "Exempt Person" shall mean the Company, any wholly-owned
Subsidiary of the Company, any employee benefit plan of the Company or of a
Subsidiary of the Company, and any Person holding Voting Shares for or pursuant
to the terms of any such employee benefit plan.
(m) "Exercise Price" shall have the meaning ascribed to it in
Section 7(c) hereof.
(n) "Expiration Date" shall mean October 1, 2008.
(o) "Person" shall mean any individual, firm, partnership,
corporation, association, group (as such term is used in Rule 13d-5 promulgated
under the Exchange Act as in effect on the date hereof) or other entity, and
shall include any successor (by merger or otherwise) of such entity.
(p) "Preferred Share" shall mean one share of the Series B Junior
Participating Cumulative Preferred Stock, par value $0.01 per share, of the
Company, which shall have the rights and preferences set forth in the form of
Certificate of Designations attached to this Agreement.
(q) "Preferred Share Equivalents" shall have the meaning ascribed to
it in Section 11(b) hereof.
(r) "Record Date" shall have the meaning ascribed to it in the
recitals hereto.
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(s) "Redemption Date" shall mean the date of the action of the Board
of Directors of the Company authorizing and directing the redemption of the
Rights pursuant to Section 23(a) hereof or the exchange of the Rights pursuant
to Section 24(a) hereof.
(t) "Redemption Price" shall have the meaning ascribed to it in
Section 23(a) hereof.
(u) "Right" shall have the meaning ascribed to it in the recitals
hereto.
(v) "Rights Agent" shall have the meaning ascribed to it in the
recitals hereto.
(w) "Section 11(a)(ii) Event" shall have the meaning ascribed to it
in Section 11(a)(ii) hereof.
(x) "Section 13(a) Event" shall have the meaning ascribed to it in
Section 13(a) hereof.
(y) "Securities Act" shall mean the Securities Act of 1933, as
amended.
(z) "Subsidiary" of any Person shall mean any corporation or other
Person of which equity securities or equity interests representing a majority
of the voting power are owned, directly or indirectly, or which is effectively
controlled, by such Person.
(aa) "Surviving Person" shall have the meaning ascribed to it in
Section 13(a) hereof.
(bb) "Trading Day" shall mean, as to any stock or other security, a
day on which the principal national securities exchange on which such stock or
other security is listed or admitted to trading is open for the transaction of
business or, if such stock or other security is not listed or admitted to
trading on any national securities exchange, a Business Day.
(cc) "Unavailable Adjustment Shares" has the meaning ascribed to it
in Section 11(a)(iii) hereof.
(dd) "Voting Share" shall mean (i) a Common Share of the Company and
(ii) any other share of capital stock of the Company entitled to vote generally
in the election of directors or entitled to vote together with the Common
Shares in respect of any merger, consolidation, sale of all or substantially
all of the Company's assets, liquidation, dissolution or winding up.
References in this Agreement to a percentage or portion of the outstanding
Voting Shares shall be deemed a reference to the percentage or portion of the
total votes entitled to be cast by the holders of the outstanding Voting
Shares.
(ee) "10% Ownership Date" shall mean the first date of public
announcement (which, for purposes of this definition, shall include, without
limitation, a
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report filed pursuant to Section 13(d) of the Exchange Act) by the Company or
a 10% Stockholder containing the facts by virtue of which a Person has become
a 10% Stockholder or such earlier date as a majority of the directors shall
become aware of the existence of a 10% Stockholder.
(ff) "10% Stockholder" shall mean any Person that, together with all
Affiliates and Associates of such Person, hereafter becomes the Beneficial
Owner of such number of Voting Shares of the Company as constitutes a
percentage of the then outstanding Voting Shares that is equal to or greater
than 10%; PROVIDED, HOWEVER, that the term "10% Stockholder" shall not include:
(i) an Exempt Person; (ii) any Person if such Person would not otherwise be a
10% Stockholder but for a reduction in the number of outstanding Voting Shares
resulting from a stock repurchase program or other similar plan of the Company
or from a self-tender offer of the Company, which plan or tender offer
commenced on or after the date hereof, PROVIDED, HOWEVER, that the term
"10% Stockholder" shall include such Person from and after the first date upon
which (A) such Person, since the date of the commencement of such plan or
tender offer, shall have acquired Beneficial Ownership of, in the aggregate, a
number of Voting Shares of the Company equal to 5% or more of the Voting Shares
of the Company then outstanding and (B) such Person, together with all
Affiliates and Associates of such Person, shall Beneficially Own 10% or more of
the Voting Shares of the Company then outstanding; or (iii) any Person if such
Person is the Beneficial Owner of 10% or more of the outstanding Voting Shares
of the Company as of the date of this Agreement, PROVIDED, HOWEVER, that the
term "10% Stockholder" shall include such Person from and after the first date
upon which (A) such Person, since the date of this Agreement, shall have
acquired, without the prior approval of the Board of Directors of the Company,
Beneficial Ownership of, in the aggregate, a number of Voting Shares of the
Company equal to 5% or more of the Voting Shares of the Company then
outstanding and (B) such Person, together with all Affiliates and Associates of
such Person, shall Beneficially Own 10% or more of the Voting Shares of the
Company then outstanding. In calculating the percentage of the outstanding
Voting Shares that are Beneficially Owned by a Person for purposes of this
subsection (ff), Voting Shares that are Beneficially Owned by such Person shall
be deemed outstanding, and Voting Shares that are not Beneficially Owned by
such Person and that are subject to issuance upon the exercise or conversion of
outstanding conversion rights, exchange rights, rights (other than Rights),
warrants or options shall not be deemed outstanding. Notwithstanding the
foregoing, if the Board of Directors of the Company determines that a Person
that would otherwise be a 10% Stockholder pursuant to the foregoing provisions
of this Section 1(ff) and Section 1(b) hereof has become such inadvertently,
and such Person (i) promptly notifies the Board of Directors of such status and
(ii) as promptly as practicable thereafter, either divests a sufficient number
of Voting Shares so that such Person would no longer be a 10% Stockholder, or
causes any other circumstance, such as the existence of an agreement respecting
Voting Shares, to be eliminated such that such Person would no longer be a
10% Stockholder as defined pursuant to this Section 1(ff) and 1(b), then such
Person shall not be deemed to be a 10% Stockholder for any purposes of this
Agreement. Any determination made by the Board of Directors of
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the Company as to whether any Person is or is not a 10% Stockholder shall be
conclusive and binding upon all holders of Rights.
Section 2. APPOINTMENT OF RIGHTS AGENT. The Company hereby appoints the
Rights Agent to act as agent for the Company, and the Rights Agent hereby
accepts such appointment. The Company may from time to time appoint such co-
Rights Agents as it may deem necessary or desirable, upon ten days' prior
written notice to the Rights Agent. The Rights Agent shall have no duty to
supervise, and shall in no event be liable for, the acts or omissions of any
such co-Rights Agent.
Section 3. ISSUANCE OF RIGHT CERTIFICATES.
(a) "Distribution Date" shall mean the date, after the date hereof,
that is the earliest of (i) the tenth Business Day (or such later day as shall
be designated by the Board of Directors of the Company) following the date of
the commencement of, or the first public announcement of the intent of any
Person, other than an Exempt Person, to commence a tender offer or exchange
offer, the consummation of which would cause any Person to become a
10% Stockholder, (ii) the date of the first Section 11(a)(ii) Event or
(iii) the date of the first Section 13(a) Event.
(b) Until the Distribution Date, (i) the Rights shall be represented
by certificates for Common Shares (all of which certificates for Common Shares
shall be deemed to be Right Certificates) and not by separate Right
Certificates, (ii) the record holder of the Common Shares represented by each
of such certificates shall be the record holder of the Rights represented
thereby and (iii) the Rights shall be transferable only in connection with the
transfer of Common Shares. Until the earliest of the Distribution Date, the
Redemption Date or the Expiration Date, the surrender for transfer of such
certificates for Common Shares shall also constitute the surrender for transfer
of the Rights represented thereby.
(c) As soon as practicable after the Distribution Date, and after
notification by the Company, the Rights Agent shall send, at the Company's
expense, by first-class, postage-prepaid mail to each record holder of Common
Shares, as of the Close of Business on the Distribution Date, at the address of
such holder shown on the records of the Company, a Right Certificate
substantially in the form of Exhibit A hereto representing one Right for each
Common Share so held. From and after the Distribution Date, the Rights shall
be represented solely by such Right Certificates and may only be transferred by
the transfer of such Right Certificates, and the holders of such Right
Certificates, as listed in the records of the Company or any transfer agent or
registrar for such Rights, shall be the record holders of such Rights.
(d) Certificates for Common Shares issued at any time after the
Record Date and prior to the earliest of the Distribution Date, the Redemption
Date or the Expiration Date, shall have impressed on, printed on, written on or
otherwise affixed to them the following legend:
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"This certificate also represents Rights that entitle the holder
hereof to certain rights as set forth in a Rights Agreement dated as
of October 1, 1998 by and between the Corporation and ChaseMellon
Shareholder Services, L.L.C., as Rights Agent (as it may be amended
from time to time, the "Rights Agreement"), the terms and conditions
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 specified in the Rights Agreement,
such Rights will be represented by separate certificates and will no
longer be represented by this certificate. Under certain
circumstances specified in the Rights Agreement, Rights beneficially
owned by certain persons may become null and void. The Corporation
will mail to the record holder of this certificate a copy of the
Rights Agreement without charge promptly following receipt of a
written request therefor."
(e) Certificates for Common Shares issued at any time on or after
the Distribution Date and prior to the earlier of the Redemption Date or the
Expiration Date shall have impressed on, printed on, written on or otherwise
affixed to them the following legend:
"This certificate does not represent any Right issued pursuant
to the terms of a Rights Agreement dated as of October 1, 1998 by and
between the Corporation and ChaseMellon Shareholder Services, L.L.C.,
as Rights Agent."
(f) In the event that at any time on or after the earlier of the
date of the first Section 11(a)(ii) Event or the date of the first
Section 13(a) Event and prior to the earlier of the Redemption Date or the
Expiration Date, the Company shall issue any Common Shares pursuant to the
exercise of conversion rights, exchange rights, rights (other than Rights),
warrants or options that shall have been issued or granted prior to the earlier
of the date of the first Section 11(a)(ii) Event or the date of the first
Section 13(a) Event, then, unless the Board of Directors of the Company shall
have provided otherwise at the time of the issuance or grant of such conversion
rights, exchange rights, rights (other than Rights), warrants or options, the
Rights Agent shall, as soon as practicable after the date of such event, send
by first-class, postage-prepaid mail to the record holder of such Common
Shares, at the address of such holder as shown on the records of the Company, a
Right Certificate substantially in the form of Exhibit A hereto representing
one Right for each Common Share so issued.
(g) Notwithstanding the foregoing provisions of this Section 3, the
Rights Agent shall not send any Right Certificate to any 10% Stockholder or any
of its Affiliates or Associates or to any Person if the Rights held by such
Person are Beneficially Owned by a 10% Stockholder or any of its Affiliates or
Associates. Any determination made by the Board of Directors of the Company as
to whether any Common Shares are or were
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Beneficially Owned at any time by a 10% Stockholder or an Affiliate or
Associate of a 10% Stockholder shall be conclusive and binding upon all
holders of Rights.
Section 4. FORM OF RIGHT CERTIFICATES. The Right Certificates and the
form of assignment, including certificate, and the form of election to
purchase, including certificate, printed on the reverse thereof, when, as and
if issued, shall be substantially the same as Exhibit A hereto, and may have
such marks of identification or designation and such legends, summaries or
endorsements printed thereon as the Company may deem appropriate and as are not
inconsistent with the provisions of this Agreement, or as may be required to
comply with any applicable law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange upon which the
Rights or the securities of the Company issuable upon exercise of the Rights
may from time to time be listed, or to conform to usage. Subject to Section 22
hereof, Right Certificates, whenever issued, that are issued in respect of
Common Shares that were issued and outstanding as of the Close of Business on
the Distribution Date, shall be dated as of the Distribution Date.
Section 5. COUNTERSIGNATURE AND REGISTRATION.
(a) The Right Certificates shall be executed on behalf of the
Company by its Chairman of the Board, its President or any Vice President,
either manually or by facsimile signature, and may have affixed thereto the
Company's seal or a facsimile thereof attested by its Secretary or any
Assistant Secretary, either manually or by facsimile signature. The Right
Certificates shall be countersigned by an authorized signatory of the Rights
Agent (which need not be the same authorized signatory for all of the Right
Certificates) and shall not be valid for any purpose unless so countersigned.
In case any officer of the Company who shall have signed any of the Right
Certificates shall cease to be such officer of the Company before
countersignature by the Rights Agent and issuance and delivery by the Company,
such Right Certificates may nevertheless be countersigned by an authorized
signatory of the Rights Agent and issued and delivered by the Company with the
same force and effect as though the person who signed such Right Certificates
had not ceased to be such officer of the Company. Any Right Certificate may be
signed on behalf of the Company by any person who at the actual date of such
execution shall be a proper officer of the Company to sign such Right
Certificate, even though such person was not such an officer at the date of the
execution of this Agreement.
(b) Following the Distribution Date, the Rights Agent shall keep or
cause to be kept at its principal offices in Los Angeles, California, books for
registration and transfer of the Right Certificates issued hereunder. Such
books shall show the names and addresses of the respective holders of Right
Certificates, the number of Rights represented on its face by each Right
Certificate and the date of each Right Certificate.
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Section 6. TRANSFER, SPLIT UP, COMBINATION AND EXCHANGE OF RIGHT
CERTIFICATES; MUTILATED, DESTROYED, LOST OR STOLEN RIGHT CERTIFICATES.
(a) Subject to the provisions of Sections 6(c), 7(d) and 14 hereof,
at any time after the Close of Business on the Distribution Date, and so long
as the Rights represented thereby remain outstanding, any one or more Right
Certificates may be transferred, split up, combined or exchanged for one or
more Right Certificates representing the same aggregate number of Rights as the
Right Certificates surrendered. Any registered holder desiring to transfer,
split up, combine or exchange one or more Right Certificates shall make such
request in writing delivered to the Rights Agent, and shall surrender the Right
Certificates to be transferred, split up, combined or exchanged at the office
of the Rights Agent with the form of assignment, including certificate, on the
reverse side thereof completed and duly executed, with signature guaranteed and
such other and further documentation as the Rights Agent may reasonably
request. Thereupon, the Rights Agent shall countersign and deliver to the
person entitled thereto one or more Right Certificates, as so requested. The
Company may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer, split
up, combination or exchange of Right Certificates.
(b) Upon receipt by the Company and the Rights Agent of evidence
reasonably satisfactory to them of the loss, theft, destruction or mutilation
of a Right Certificate, and, in case of loss, theft or destruction, of
indemnity or security reasonably satisfactory to them and, at the Company's
request, reimbursement to the Company and the Rights Agent of all reasonable
expenses incidental thereto, and upon surrender to the Rights Agent and
cancellation of such Right Certificate, if mutilated, along with signature
guarantees and such other and further documentation as the Rights Agent may
reasonably request, the Company shall issue and deliver to the Rights Agent for
delivery to the record holder of such Right Certificate a new Right Certificate
of like tenor in lieu of such lost, stolen, destroyed or mutilated Right
Certificate.
(c) Notwithstanding anything to the contrary in this Section 6, the
Rights Agent shall not countersign and deliver a Right Certificate to any
Person if such Right Certificate represents, or would represent when held by
such Person, Rights that had become or would become null and void pursuant to
Section 7(d) hereof.
Section 7. EXERCISE OF RIGHTS.
(a) Until the Distribution Date, no Right may be exercised.
(b) Subject to Section 7(d) and (g) hereof and the other provisions
of this Agreement, at any time after the Close of Business on the Distribution
Date and prior to the Close of Business on the earlier of the Redemption Date
or the Expiration Date, the registered holder of any Right Certificate may
exercise the Rights represented thereby in whole or in part upon surrender of
such Right Certificate, with the form of election to purchase, including
certificate, on the reverse side thereof completed and duly executed, to
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the Rights Agent at the office of the Rights Agent at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn.: Relationship Manager, along
with a signature guarantee and such other and further documentation as the
Rights Agent may reasonably request, together with payment of the Exercise
Price for each Right exercised. Upon the exercise of an exercisable Right
and payment of the Exercise Price in accordance with the provisions of this
Agreement, the holder of such Right shall be entitled to receive, subject to
adjustment as provided herein, one one-hundredth (1/100th) of a Preferred
Share (or, following the occurrence of a Section 11(a)(ii) Event or a Section
13(a) Event, Common Shares, other securities cash and/or other property in
accordance with the provisions of this Agreement).
(c) The Exercise Price for each one one-hundredth (1/100th) of a
Preferred Share pursuant to the exercise of each Right shall initially be
$100.00 (One Hundred Dollars) and shall be payable in lawful money of the
United States of America in accordance with Section 7(f) hereof. The Exercise
Price and the number of Preferred Shares (or, following the occurrence of a
Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares, cash and/or
other property in accordance with the provisions of this Agreement) to be
acquired upon exercise of a Right shall be subject to adjustment from time to
time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of
this Agreement.
(d) Notwithstanding anything in this Agreement to the contrary, from
and after the earlier of the date of the first Section 11(a)(ii) Event or the
date of the first Section 13(a) Event, any Rights that are or were Beneficially
Owned by (i) a 10% Stockholder or any Affiliate or Associate of a
10% Stockholder, (ii) a transferee of a 10% Stockholder (or of any such
Associate or Affiliate) who becomes a transferee after the 10% Stockholder
becomes such, or (iii) a transferee of a 10% Stockholder (or of any such
Associate or Affiliate) who becomes a transferee prior to or concurrently with
a 10% Stockholder becoming such and receives such Rights pursuant to either (A)
a transfer (whether or not for consideration) from the 10% Stockholder to
holders of equity interests in such 10% Stockholder or to any Person with whom
the 10% Stockholder has any continuing agreement, arrangement or understanding
regarding the transferred Rights, or (B) a transfer which the Board of
Directors of the Company has determined is part of a plan, arrangement or
understanding which has as a primary purpose or effect the avoidance of this
Section 7(d), at any time on or after the Distribution Date shall be null and
void, and for all purposes of this Agreement such Rights shall thereafter be
deemed not to be outstanding, and any holder of such Rights (whether or not
such holder is a 10% Stockholder or an Affiliate or Associate of a
10% Stockholder) shall thereafter have no right to exercise such Rights.
(e) Prior to the Distribution Date, if the Board of Directors of the
Company shall have determined that such action adequately protects the
interests of the holders of Rights, the Company may, in its discretion,
substitute for all or any portion of the Preferred Shares that would otherwise
be issuable (after the Close of Business on the Distribution Date) upon the
exercise of each Right and payment of the Exercise Price, (i) cash, (ii) other
equity securities of the Company, (iii) debt securities of the Company,
(iv) other property or (v) any combination of the foregoing, in each case
having an aggregate
11
Current Market Price equal to the aggregate Current Market Price of the
Preferred Shares for which substitution is made. Subject to Section 7(d)
hereof, in the event that the Company takes any action pursuant to this
Section 7(e), such action shall apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing exercisable
Rights, with the form of election to purchase, including certificate, completed
and duly executed, with signature guaranteed, accompanied by payment of the
Exercise Price for each Right to be exercised and an amount equal to any
applicable transfer tax required to be paid by the holder of such Right
Certificate in accordance with Section 9 hereof by certified check or cashier's
check payable to the order of the Company, the Rights Agent shall thereupon
promptly (i) requisition from the transfer agent of the Preferred Shares (or,
following the occurrence of a Section 11(a)(ii) Event or a Section 13(a) Event,
Common Shares, other securities, cash and/or other property in accordance with
the provisions of this Agreement), certificates for the number of one one-
hundredth (1/100th) of a Preferred Share (or such other securities) to be
purchased, and the Company hereby irrevocably authorizes such transfer agent to
comply with all such requests, and/or, as provided in Section 14 hereof,
requisition from the depositary agent described therein depositary receipts
representing such number of one one-hundredth (1/100th) of a Preferred Share
(or such other securities) as are to be purchased (in which case certificates
for the Preferred Shares (or such other securities) represented by such
receipts shall be deposited by the transfer agent with such depositary agent)
and the Company hereby directs such depositary agent to comply with such
request, (ii) when appropriate, requisition from the Company the amount of cash
to be paid in lieu of issuance of fractional Preferred Shares (or such other
securities) in accordance with Section 14 hereof, (iii) after receipt of such
certificates, depositary receipts or cash, cause the same to be delivered to or
upon the order of the registered holder of such Right Certificate, registered
in such name or names as may be designated by such holder and (iv) when
appropriate, after receipt thereof, deliver such cash to or upon the order of
the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the
exercisability of the Rights shall be suspended for such period as shall
reasonably be necessary for the Company to register under the Securities Act
and any applicable securities law of any jurisdiction the Preferred Shares to
be issued pursuant to the exercise of the Rights; PROVIDED, HOWEVER, that
nothing contained in this Section 7 shall relieve the Company of its
obligations under Section 9(c) hereof.
(h) In case the registered holder of any Right Certificate shall
exercise less than all of the Rights represented thereby, a new Right
Certificate representing Rights equivalent to the Rights remaining unexercised
shall be issued by the Rights Agent to the registered holder of such Right
Certificate or to such holder's duly authorized assigns, subject to the
provisions of Section 14 hereof.
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Section 8. CANCELLATION AND DESTRUCTION OF RIGHT CERTIFICATES. All Right
Certificates surrendered for the purpose of exercise, transfer, split up,
combination or exchange shall, if surrendered to the Company or to any of its
agents, be delivered to the Rights Agent for cancellation or in canceled form,
or, if surrendered to the Rights Agent, shall be canceled by it, and no Right
Certificates shall be issued in lieu thereof except as expressly permitted by
this Agreement. The Company shall deliver to the Rights Agent for cancellation
and retirement, and the Rights Agent shall so cancel and retire, any other
Right Certificate purchased or acquired by the Company otherwise than upon the
exercise thereof. The Rights Agent shall deliver all canceled Right
Certificates to the Company.
Section 9. RESERVATION AND AVAILABILITY OF CAPITAL STOCK.
(a) Subject to Section 7(e) hereof, the Company shall cause to be
reserved and kept available out of its authorized and unissued equity
securities (or out of its authorized and issued equity securities held in its
treasury), the number of such equity securities that will from time to time be
sufficient to permit the exercise in full of all outstanding Rights.
(b) In the event that any securities issuable upon exercise of the
Rights are listed on any national securities exchange, the Company shall use
its best efforts, from and after such time as the Rights become exercisable, to
cause all such securities issued or reserved for such issuance to be listed on
such exchange upon official notice of issuance upon such exercise.
(c) If necessary to permit the issuance of securities upon exercise
of the Rights, the Company shall use its best efforts, from and after the
Distribution Date, to register such securities under the Securities Act and any
applicable state securities laws and to keep such registration effective until
the earlier of the Redemption Date or the Expiration Date.
(d) The Company shall take all such action as may be necessary to
ensure that all securities delivered upon exercise of the Rights shall, at the
time of delivery of the certificates for such securities (subject to payment of
the Exercise Price), be duly and validly authorized and issued and fully paid
and nonassessable securities.
(e) The Company shall pay when due and payable any and all federal
and state transfer taxes and charges that may be payable in respect of the
issuance or delivery of the Right Certificates or of any securities upon the
exercise of Rights. The Company shall not, however, be required to pay any
transfer tax that may be payable in respect of any transfer or delivery of a
Right Certificate to a Person other than, or the issuance or delivery of a
certificate for securities in respect of a name other than that of, the
registered holder of the Right Certificate representing Rights surrendered for
exercise, or to issue or deliver any certificate for securities upon the
exercise of any Right until any such tax shall have been paid (any such tax
being payable by the holder of such Right Certificate at the time of surrender)
or until it has been established to the Company's satisfaction that no such tax
is due.
13
(f) With respect to the Common Shares and/or other securities
issuable pursuant to Section 11(a)(ii) and (iii) hereof, the foregoing
covenants shall be applicable only upon and following the occurrence of a
Section 11(a)(ii) Event.
Section 10. SECURITIES RECORD DATE. Each person in whose name any
certificate for securities of the Company is issued upon the exercise of Rights
shall for all purposes be deemed to have become the holder of record of the
securities represented thereby on, and such certificate shall be dated, the
date upon which the Right Certificate representing such Rights was duly
surrendered and payment of the Exercise Price (and any applicable transfer
taxes) was made; PROVIDED, HOWEVER, that if the date of such surrender and
payment is a date upon which the securities transfer books of the Company are
closed, such person shall be deemed to have become the record holder of such
securities on, and such certificate shall be dated, the next succeeding
Business Day on which the securities transfer books of the Company are open.
Section 11. ADJUSTMENT OF EXERCISE PRICE, NUMBER OF SHARES ISSUABLE UPON
EXERCISE OF RIGHTS OR NUMBER OF RIGHTS. The Exercise Price, the number and
kind of securities that may be purchased upon exercise of a Right and the
number of Rights outstanding are subject to adjustment from time to time as
provided in this Section 11.
(a) (i) In the event that the Company shall at any time after the
Close of Business on the Record Date and prior to the Close of Business on
the earlier of the Redemption Date or the Expiration Date (A) declare or
pay any dividend on the Preferred Shares payable in Preferred Shares or
Voting Shares, (B) subdivide the outstanding Preferred Shares, (C) combine
the outstanding Preferred Shares into a smaller number of Preferred Shares
or (D) issue Preferred Shares or Voting Shares in a reclassification of
the Preferred Shares (including any such reclassification in connection
with a consolidation or merger in which the Company is the continuing or
surviving corporation), then, and upon each such event, the Exercise Price
in effect on the date of such event and the number and kind of Preferred
Shares or other securities issuable upon the exercise of a Right on the
date of such event shall be proportionately adjusted so that the holder of
any Right exercised on or after such date shall be entitled to receive,
upon the exercise thereof and payment of the Exercise Price, the aggregate
number and kind of Preferred Shares or other securities or other property,
as the case may be, that, if such Right had been exercised immediately
prior to such date and at a time when such Right was exercisable and the
transfer books of the Company were open, such holder would have owned upon
such exercise and would have been entitled to receive by virtue of such
dividend, subdivision, combination or reclassification. If an event
occurs that would require an adjustment under both this Section 11(a)(i)
and Section 11(a)(ii) hereof, the adjustment provided for in this
Section 11(a)(i) shall be in addition to, and shall be made prior to, any
adjustment required pursuant to Section 11(a)(ii) hereof.
14
(ii) In the event that a 10% Ownership Date shall have occurred
and neither the Redemption Date nor the Expiration Date shall have
occurred, then, effective as of the tenth Business Day (or such later day
as shall be designated by the Board of Directors of the Company) following
the 10% Ownership Date (the occurrence of such Business Day being a
"Section 11(a)(ii) Event"), proper provision shall be made so that except
as provided in Section 7(d) hereof, each holder of a Right shall
thereafter have the right to receive, upon the exercise thereof in
accordance with the terms of this Agreement and payment of the then-
current Exercise Price, in lieu of the securities or other property
otherwise purchasable upon such exercise, such number of Common Shares of
the Company as shall equal the result obtained by multiplying the then
current Exercise Price by the then number of one one-hundredth (1/100th)
of a Preferred Share for which a Right was exercisable (or, if the
Distribution Date shall not have occurred prior to the date of such
Section 11(a)(ii) Event, the number of one one-hundredth (1/100th) of a
Preferred Share for which a Right would have been exercisable if the
Distribution Date had occurred on the Business Day immediately preceding
the date of such Section 11(a)(ii) Event) immediately prior to such
Section 11(a)(ii) Event, and dividing that product by 50% of the Current
Market Price of a Common Share on the date of occurrence of the relevant
Section 11(a)(ii) Event (such number of shares being hereinafter referred
to as the "Adjustment Shares"). Successive adjustments shall be made
pursuant to this paragraph each time a Section 11(a)(ii) Event occurs.
(iii) In the event that on the date of a Section 11(a)(ii)
Event the aggregate number of Common Shares that are authorized by the
Company's Certificate of Incorporation, as amended from time to time, but
not outstanding or reserved for issuance for purposes other than upon
exercise of the Rights is less than the aggregate number of Adjustment
Shares thereafter issuable upon the exercise in full of the Rights in
accordance with Section 11(a)(ii) hereof (the excess of such number of
Adjustment Shares over and above such number of Common Shares being
hereinafter referred to as the "Unavailable Adjustment Shares"), then, and
upon each such event, the Company shall substitute for the pro rata
portion of the Unavailable Adjustment Shares that would otherwise be
issuable thereafter upon the exercise of each Right and payment of the
Exercise Price, (A) cash, (B) other equity securities of the Company
(including, without limitation, shares of preferred stock of the Company
or units of such shares having the same Current Market Price as one Common
Share (a "Common Share Equivalent")), (C) debt securities of the Company,
(D) other property or (E) any combination of the foregoing, in each case
having an aggregate Current Market Price equal to the aggregate Current
Market Price of the Unavailable Adjustment Shares for which substitution
is made. Subject to Section 7(d) hereof, in the event that the Company
takes any action pursuant to this Section 11(a)(iii), such action shall
apply uniformly to all outstanding Rights.
(b) In the event that the Company shall, at any time after the Close
of Business on the Record Date and prior to the Close of Business on the
earlier of the
15
Redemption Date or the Expiration Date, fix a record date prior to the
earlier of the Redemption Date or the Expiration Date for the issuance of
rights, options or warrants to all holders of Preferred Shares entitling them
initially to subscribe for or purchase Preferred Shares (or shares having the
same rights, privileges and preferences as the Preferred Shares ("Preferred
Share Equivalents")) or securities convertible into Preferred Shares or
Preferred Share Equivalents, at a price per Preferred Share or Preferred
Share Equivalent (or having a conversion price per share, if a security
convertible into Preferred Shares or Preferred Share Equivalents) less than
the Current Market Price per Preferred Share on such record date, then, and
upon each such event, the Exercise Price to be in effect after such record
date shall be determined by multiplying the Exercise Price in effect
immediately prior to such record date by a fraction, the numerator of which
shall be equal to the sum of the number of Preferred Shares outstanding on
such record date plus the number of Preferred Shares that the aggregate
offering price of the total number of Preferred Shares and/or Preferred Share
Equivalents to be so offered (and/or the aggregate initial conversion price
of the convertible securities to be so offered) would purchase at such
Current Market Price, and the denominator of which shall be equal to the
number of Preferred Shares outstanding on such record date plus the number of
additional Preferred Shares and/or Preferred Share Equivalents to be offered
for subscription or purchase (or into which the convertible securities to be
so offered are initially convertible); PROVIDED, HOWEVER, that if such
rights, options or warrants are not exercisable immediately upon issuance but
become exercisable only upon the occurrence of a specified event or the
passage of a specified period of time, then the adjustment to the Exercise
Price shall be made and become effective only upon the occurrence of such
event or such passage of time, and such adjustment shall be made as if the
record date for the issuance of such rights, options or warrants had been the
Business Day immediately preceding the date upon which such rights, options
or warrants became exercisable. Preferred Shares owned by or held for the
account of the Company shall not be deemed outstanding for the purpose of any
such computation. Such adjustment to the Exercise Price shall be made
successively whenever such a record date is fixed, and in the event that such
rights or warrants are not so issued, the Exercise Price shall be adjusted to
be the Exercise Price that would then be in effect if such record date had
not been fixed.
(c) In the event that the Company shall, at any time after the Close
of Business on the Record Date and prior to the Close of Business on the
earlier of the Redemption Date or the Expiration Date, fix a record date for
the making of a distribution to all holders of the Preferred Shares (including
any such distribution made in connection with a consolidation or merger in
which the Company is the surviving corporation) of securities or assets (other
than a distribution of securities for which an adjustment is required under
Section 11(a)(i) or (b) hereof or a regular quarterly cash dividend), then the
Exercise Price to be in effect after such record date shall be determined by
multiplying the Exercise Price in effect immediately prior to such record date
by a fraction, the numerator of which shall be equal to the excess of the
Current Market Price per Preferred Share on such record date over and above the
fair market value of the portion of the securities or assets to be so
distributed with respect to one Preferred Share, and the denominator of which
shall be equal to such Current Market Price per Preferred Share. Such
adjustments shall be made successively
16
whenever such a record date is fixed, and in the event that such a
distribution is not so made, the Exercise Price shall be adjusted to be the
Exercise Price that would then be in effect if such record date had not been
fixed.
(d) For the purpose of any computation under this Section 11, if the
Preferred Shares are not publicly held or traded, the "Current Market Price"
per Preferred Share shall be conclusively deemed to be the Current Market Price
per Common Share multiplied by 100 (as such number may be appropriately
adjusted for such events as stock splits, stock dividends and recapitalizations
with respect to the Common Shares occurring after the date of this Agreement).
(e) No adjustment in the Exercise Price shall be required unless
such adjustment would require an increase or decrease of at least 1% in the
Exercise Price; PROVIDED, HOWEVER, that any adjustments that by reason of this
Section 11(e) are not required to be made shall be cumulated and taken into
account in any subsequent adjustment. All calculations under this Section 11
shall be made to the nearest cent or to the nearest one-thousandth of a Common
Share or other share or one one-millionth of a Preferred Share, as the case may
be.
(f) If, as a result of an adjustment made pursuant to Section 11(a)
hereof, the holder of any Right thereafter exercised shall become entitled to
receive any securities of the Company other than Preferred Shares, the number
of such other securities so receivable upon exercise of any Right and the
Exercise Price thereof shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the provisions with
respect to Preferred Shares contained in this Section 11, and the other
provisions of this Agreement with respect to Preferred Shares shall apply on
like terms to any such other securities.
(g) All Rights originally issued by the Company subsequent to any
adjustment made to the Exercise Price hereunder shall represent the right to
purchase, at the adjusted Exercise Price, the number of one one-hundredth
(1/100th) of a Preferred Share purchasable from time to time hereunder upon
exercise of the Rights, all subject to further adjustment as provided herein.
(h) Unless the Company shall have exercised its election as provided
in Section 11(i) below, upon each adjustment of the Exercise Price as a result
of the calculations made in Sections 11(b) and (c) hereof, each Right
outstanding immediately prior to the making of such adjustment shall thereafter
represent the right to purchase, at the adjusted Exercise Price, that number of
one one-hundredth (1/100th) of a Preferred Share (calculated to the nearest one
one-millionth of a Preferred Share) obtained by multiplying (i) the number of
one one-hundredth (1/100th) of a Preferred Share purchasable upon the exercise
of one Right immediately prior to such adjustment of the Exercise Price by
(ii) the Exercise Price in effect immediately prior to such adjustment, and
dividing the product so obtained by the Exercise Price in effect immediately
after such adjustment.
17
(i) The Company may elect, on or after the date of any adjustment of
the Exercise Price, to adjust the number of Rights instead of making any
adjustment in the number of one one-hundredth (1/100th) of a Preferred Share
purchasable upon the exercise of a Right. Each of the Rights outstanding after
such adjustment of the number of Rights shall be exercisable for the number of
one one-hundredth (1/100th) of a Preferred Share for which a Right was
exercisable immediately prior to such adjustment. Each Right held of record
prior to such adjustment of the number of Rights shall become that number of
Rights (calculated to the nearest one one-hundredth (1/100th) of a Right)
obtained by dividing the Exercise Price in effect immediately prior to the
adjustment of the Exercise Price by the Exercise Price in effect immediately
after such adjustment of the Exercise Price. The Company shall make a public
announcement of its election to adjust the number of Rights pursuant to this
Section 11(i), indicating the record date for the adjustment and, if known at
the time, the amount of the adjustment to be made. Such record date may be the
date on which the Exercise Price is adjusted or any day thereafter, but, if
separate Right Certificates have been issued, it shall be at least 10 days
after the date of such public announcement. If separate Right Certificates
have been issued, upon each adjustment of the number of Rights pursuant to this
Section 11(i), the Company shall, as promptly as practicable, cause to be
distributed to holders of record of Right Certificates on such record date
Right Certificates representing, subject to Section 14 hereof, the additional
Rights to which such holders shall be entitled as a result of such adjustment
or, at the option of the Company, cause to be distributed to such holders of
record in substitution and replacement for the Right Certificates held by such
holders prior to the date of such adjustment, and upon surrender thereof if
required by the Company, new Right Certificates representing all the Rights to
which such holders shall be entitled after such adjustment. Right Certificates
to be so distributed shall be issued, executed and countersigned in the manner
provided for herein (and may bear, at the option of the Company, the adjusted
Exercise Price) and shall be registered in the names of the holders of record
of Right Certificates on the record date specified in the public announcement.
(j) Irrespective of any adjustment or change in the Exercise Price
or the number of one one-hundredth (1/100th) of a Preferred Share issuable upon
the exercise of one Right, the Right Certificates theretofore and thereafter
issued may continue to express the Exercise Price per one one-hundredth
(1/100th) of a Preferred Share and the number of one one-hundredth (1/100th) of
a Preferred Share issuable upon the exercise of one Right that were expressed
in the initial Right Certificates issued hereunder.
(k) Before taking any action that would cause an adjustment reducing
the Exercise Price below one one-hundredth (1/100th) of the then par value, if
any, of the Preferred Shares issuable upon exercise of the Rights, the Company
shall take any corporate action that may, in the advice or opinion of its
counsel, be necessary in order that the Company may validly and legally issue
fully paid and nonassessable one one-hundredth (1/100th) of a Preferred Share
at such adjusted Exercise Price.
18
(l) In any case in which this Section 11 shall require that an
adjustment in the Exercise Price be made effective as of a record date for a
specified event, the Company may elect to defer, until the occurrence of such
event, the issuance to the holder of any Right exercised after such record date
of the number of one one-hundredth (1/100th) of a Preferred Share and other
capital stock or securities of the Company, if any, issuable upon such exercise
over and above the number of one one-hundredth (1/100th) of a Preferred Share
and other capital stock or securities of the Company, if any, issuable upon
such exercise on the basis of the Exercise Price in effect prior to such
adjustment; PROVIDED, HOWEVER, that the Company shall deliver to such holder a
due ▇▇▇▇ or other appropriate instrument representing such holder's right to
receive such additional shares upon the occurrence of the event requiring such
adjustment.
(m) Anything in this Section 11 to the contrary notwithstanding, the
Company shall be entitled to make such further adjustments in the number of one
one-hundredth (1/100th) of a Preferred Share that may be purchased upon
exercise of one Right, and such further adjustments in the Exercise Price, in
addition to those adjustments expressly required by this Section 11, as and to
the extent that it in its sole discretion shall determine to be advisable in
order that any (i) consolidation or subdivision of the Preferred Shares,
(ii) issuance wholly for cash of any Preferred Shares at less than the Current
Market Price thereof, (iii) issuance wholly for cash of Preferred Shares or
securities that by their terms are convertible into or exchangeable for
Preferred Shares, (iv) dividends on Preferred Shares payable in Preferred
Shares or (v) issuance of rights, options or warrants referred to Section 11(b)
hereof, hereafter made by the Company to holders of its Preferred Shares shall
not be taxable to such stockholders.
(n) In the event that the Company shall, at any time after the Close
of Business on the Record Date and prior to the Close of Business on the
earliest of the date of the first Section 11(a)(ii) Event, the date of the
first Section 13(a) Event, the Redemption Date or the Expiration Date, (i) pay
any dividend on the Common Shares payable in Common Shares, (ii) subdivide the
outstanding Common Shares, (iii) combine the outstanding Common Shares into a
smaller number of Common Shares or (iv) issue Common Shares in a
reclassification of the Common Shares (including any such reclassification in
connection with a consolidation or merger in which the Company is the
continuing or surviving corporation), then, and upon each such event, the
Exercise Price to be in effect after such event shall be determined by
multiplying the Exercise Price in effect immediately prior to such event by a
fraction, the numerator of which shall be equal to the number of Common Shares
outstanding immediately prior to such event and the denominator of which shall
be equal to the number of Common Shares outstanding immediately after such
event. Successive adjustments shall be made pursuant to this Section 11(n)
each time such a dividend is paid or such a subdivision, combination or
reclassification is effected. If an event occurs that would require an
adjustment under both this Section 11(n) and Section 11(a)(ii) hereof, the
adjustment provided for in this Section 11(n) shall be in addition to, and
shall be made prior to, any adjustment required pursuant to Section 11(a)(ii)
hereof.
19
Section 12. CERTIFICATE OF ADJUSTED EXERCISE PRICE OR NUMBER OF SHARES
ISSUABLE UPON EXERCISE OF RIGHTS. Whenever an adjustment is made as provided
in Section 11 hereof, the Company shall promptly (a) prepare a certificate
setting forth such adjustment and a brief statement of the facts giving rise to
such adjustment, (b) file with the Rights Agent and with each transfer agent
for the securities issuable upon exercise of the Rights a copy of such
certificate and (c) mail a brief summary thereof to each holder of Rights in
accordance with Section 25 hereof. Notwithstanding the foregoing sentence, the
failure of the Company to make such certification or to give such notice shall
not affect the validity or the force and effect of such adjustment. Any
adjustment to be made pursuant to Sections 11 or 13 hereof shall be effective
as of the date of the event giving rise to such adjustment. The Rights Agent
shall be fully protected in relying on any such certificate and on any
adjustment therein contained and shall not be deemed to have knowledge of such
adjustment unless and until it shall have received such certificate.
Section 13. CONSOLIDATION, MERGER, OR SALE OR TRANSFER OF ASSETS OR
EARNING POWER.
(a) In the event (a "Section 13(a) Event") that, at any time on or
after the 10% Ownership Date and prior to the earlier of the Redemption Date or
the Expiration Date, (1) the Company shall, directly or indirectly, consolidate
with or merge with and into any other Person and the Company shall not be the
continuing or surviving corporation in such consolidation or merger, (2) any
Person shall, directly or indirectly, consolidate with or merge with and into
the Company and the Company shall be the continuing or surviving corporation in
such consolidation or merger and, in connection with such consolidation or
merger, all or part of the Common Shares shall be changed into or exchanged for
stock or other securities of any Person or cash or any other property, or
(3) the Company and/or any one or more of its Subsidiaries shall, directly or
indirectly, sell or otherwise transfer, in one or more transactions (other than
transactions in the ordinary course of business), assets or earning power
aggregating more than 50% of the assets or earning power of the Company and its
Subsidiaries (taken as a whole) to any Person or Persons other than the Company
or one or more of its wholly owned Subsidiaries (such Persons, together with
the Persons described in clauses (1) and (2) above shall be collectively
referred to in this Section 13 as the "Surviving Person"), then, and in each
such case, proper provision shall be made so that:
(i) except as provided in Section 7(d) hereof, each holder of a
Right shall thereafter have the right to receive, upon the exercise
thereof in accordance with the terms of this Agreement and payment of the
then-current Exercise Price, in lieu of the securities or other property
otherwise purchasable upon such exercise, such number of validly
authorized and issued, fully paid and nonassessable Common Shares of the
Surviving Person as shall be equal to a fraction, the numerator of which
is the product of the then-current Exercise Price multiplied by the number
of one one-hundredth (1/100th) of a Preferred Share purchasable upon the
exercise of one Right immediately prior to the first Section 13(a) Event
(or, if the Distribution Date shall not have occurred prior to the date of
such Section 13(a) Event, the number of one one-hundredth (1/100th) of a
Preferred Share that would
20
have been so purchasable if the Distribution Date had occurred on the
Business Day immediately preceding the date of such Section 13(a) Event,
or, if a Section 11(a)(ii) Event has occurred prior to such Section
13(a) Event, the product of the number of one one-hundredth (1/100th) of
a Preferred Share purchasable upon the exercise of a Right (or, if the
Distribution Date shall not have occurred prior to the date of such
Section 11(a)(ii) Event, the number of one one-hundredth (1/100th) of a
Preferred Share that would have been so purchasable if the Distribution
Date had occurred on the Business Day immediately preceding the date of
such Section 11(a)(ii) Event) immediately prior to such Section
11(a)(ii) Event, multiplied by the Exercise Price in effect immediately
prior to such Section 11(a)(ii) Event), and the denominator of which is
50% of the Current Market Price per Common Share of the Surviving Person
on the date of consummation of such Section 13(a) Event;
(ii) the Surviving Person shall thereafter be liable for and
shall assume, by virtue of such consolidation, merger, sale or transfer,
all the obligations and duties of the Company pursuant to this Agreement;
(iii) the term, "Company," shall thereafter be deemed to
refer to the Surviving Person; and
(iv) the Surviving Person shall take such steps (including, but
not limited to, the reservation of a sufficient number of its Common
Shares in accordance with Section 9 hereof) in connection with such
consummation as may be necessary to ensure that the provisions hereof
shall thereafter be applicable to its Common Shares thereafter deliverable
upon the exercise of Rights.
(b) Notwithstanding the foregoing, if the Section 13(a) Event is the
sale or transfer in one or more transactions of assets or earning power
aggregating more than 50% of the assets or earning power of the Company and its
Subsidiaries (taken as a whole), but less than 100% thereof, then each Person
acquiring all or a portion thereof shall assume the obligations of the Company
as to a fraction of each of the Rights equal to the fraction of the assets of
the Company and its Subsidiaries (taken as a whole) acquired by such Person,
and the obligations of the Company as to the remaining fraction of each of the
Rights shall continue to be the obligations of the Company.
(c) The Company shall not consummate a Section 13(a) Event unless
prior thereto the Company and the Surviving Person shall have executed and
delivered to the Rights Agent a supplemental agreement confirming that such
Surviving Person shall, upon consummation of such Section 13(a) Event, assume
this Agreement in accordance with Section 13 hereof, that all rights of first
refusal or preemptive rights in respect of the issuance of Common Shares of
such Surviving Person upon exercise of outstanding Rights have been waived and
that such Section 13(a) Event shall not result in a default by such Surviving
Person under this Agreement, and further providing that, as soon as practicable
after the date of consummation of such Section 13(a) Event, such Surviving
Person shall:
21
(i) prepare and file a registration statement under the
Securities Act with respect to the Rights and the securities purchasable
upon exercise of the Rights on an appropriate form, use its best efforts
to cause such registration statement to become effective as soon as
practicable after such filing, use its best efforts to cause such
registration statement to remain effective (with a prospectus at all times
meeting the requirements of the Securities Act) until the Expiration Date,
and similarly comply with all applicable state securities laws;
(ii) use its best efforts to list (or continue the listing of)
the Rights and the Common Shares of the Surviving Person purchasable upon
exercise of the Rights on a national securities exchange, or use its best
efforts to cause the Rights and such Common Shares to meet the eligibility
requirements for quotation on NASDAQ; and
(iii) deliver to holders of the Rights historical financial
statements for such Surviving Person that comply in all respects with the
requirements for registration on Form 10 (or any successor form) under the
Exchange Act.
(d) In the event that at any time after the occurrence of a
Section 11(a)(ii) Event some or all of the Rights shall not have been exercised
pursuant to Section 11 hereof prior to the date of a Section 13(a) Event, such
Rights shall thereafter be exercisable only in the manner described in
Section 13(a) hereof. In the event that a Section 11(a)(ii) Event occurs on or
after the date of a Section 13(a) Event, Rights shall not be exercisable
pursuant to Section 11 hereof but shall instead be exercisable pursuant to, and
only pursuant to, this Section 13.
(e) The provisions of this Section 13 shall apply to each successive
merger, consolidation, sale or other transfer constituting a Section 13(a)
Event.
Section 14. FRACTIONAL RIGHTS AND FRACTIONAL SHARES.
(a) The Company shall not be required to issue fractions of Rights
or to distribute Right Certificates that represent fractional Rights. If the
Company shall determine not to issue such fractional Rights, the Company shall
pay to the registered holders of the Right Certificates with respect to which
such fractional Rights would otherwise be issuable, at the time such fractional
Rights would otherwise have been issued as provided herein, an amount in cash
equal to the same fraction of the Current Market Price of a whole Right on the
Business Day immediately prior to the date upon which such fractional Rights
would otherwise have been issuable.
(b) The Company shall not be required to issue fractions of Common
Shares or Preferred Shares (other than fractions that are integral multiples of
one one-hundredth (1/100th) of a Preferred Share) upon exercise of Rights, or
to distribute certificates that represent fractional Common Shares or Preferred
Shares (other than fractions that are integral multiples of one one-hundredth
(1/100th) of a Preferred Share). Fractions of
22
Preferred Shares in integral multiples of one one-hundredth (1/100th) of a
Preferred Share may, at the election of the Company, be represented by
depositary receipts, pursuant to an appropriate agreement between the Company
and a depositary selected by it, provided that such agreement shall provide
that the holders of such depositary receipts shall have all the rights,
privileges and preferences to which they are entitled as beneficial owners of
Preferred Shares. If the Company shall determine not to issue fractional
Common Shares or Preferred Shares (or depositary receipts in lieu of
Preferred Shares), the Company shall pay to the registered holders of Right
Certificates with respect to which such fractional Common Shares or Preferred
Shares would otherwise be issuable, at the time such Rights are exercised as
provided herein, an amount in cash equal to the same fraction of the Current
Market Price of a whole Common Share or Preferred Share, as the case may be.
For purposes of this Section 14(b), the Current Market Price of a whole
Common Share or Preferred Share shall be the Closing Price per share for the
Trading Day immediately prior to the date of such exercise.
(c) The holder of a Right, by the acceptance of such Right,
expressly waives such holder's right to receive any fractional Rights or any
fractional Common Shares or Preferred Shares upon exercise of such Right,
except as permitted by this Section 14.
Section 15. RIGHTS OF ACTION. All rights of action in respect of this
Agreement, except the rights of action given to the Rights Agent under
Section 18 hereof, are vested in the respective registered holders of the Right
Certificates and certificates for Common Shares representing Rights, and any
registered holder of any Right Certificate or of such certificate for Common
Shares, without the consent of the Rights Agent or of the holder of any other
Right Certificate or any other certificate for Common Shares may, in such
holder's own behalf and for such holder's own benefit, 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 the
Rights represented by such Right Certificate or by such certificate for Common
Shares in the manner provided in such 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 shall be
entitled to specific performance, and injunctive relief against actual or
threatened violations, of the obligations of any Person under this Agreement.
Section 16. AGREEMENT OF RIGHT HOLDERS. Every holder of a Right, by
accepting the same, consents and agrees with the Company and the Rights Agent
and every other holder of a Right that:
(a) prior to the Distribution Date, the Rights shall be represented
by certificates for Common Shares registered in the name of the holders of such
Common Shares (which certificates for Common Shares shall also constitute Right
Certificates), and each such Right shall be transferable only in connection
with the transfer of such Common Shares;
23
(b) after the Distribution Date, the Right Certificates shall only
be transferable on the registry books of the Rights Agent if surrendered at the
principal stock transfer office of the Rights Agent, duly endorsed or
accompanied by a proper instrument of transfer along with a signature guarantee
and such other and further documentation as the Rights Agent may reasonably
request;
(c) the Company and the Rights Agent may deem and treat the person
in whose name the Right Certificate is registered as the absolute owner thereof
and of the Rights represented thereby (notwithstanding any notations of
ownership or writing on the Right Certificate by anyone other than the Company
or the Rights Agent) for all purposes whatsoever, and neither the Company nor
the Rights Agent shall be affected by any notice to the contrary; and
(d) notwithstanding anything in this Agreement to the contrary,
neither the Company nor the Rights Agent shall have any liability to any holder
of a Right or other Person as a result of its inability to perform any of its
obligations under this Agreement by reason of any preliminary or permanent
injunction or other order, decree or ruling issued by a court of competent
jurisdiction or by a governmental, regulatory or administrative agency or
commission, or any statute, rule, regulation or executive order promulgated or
enacted by any governmental authority prohibiting or otherwise restraining
performance of such obligation.
Section 17. RIGHT HOLDER AND RIGHT CERTIFICATE HOLDER NOT DEEMED A
STOCKHOLDER. No holder, as such, of any Right or Right Certificate shall be
entitled to vote, receive dividends or be deemed for any purpose the holder of
the securities of the Company that may at any time be issuable upon the
exercise of the Rights represented thereby, nor shall anything contained herein
or in any Right Certificate be construed to confer upon the holder of any Right
or Right Certificate, as such, any of the rights of a stockholder of the
Company or any right to vote for the election of directors or upon any matter
submitted to stockholders at any meeting thereof, to give or withhold consent
to any corporate action, to receive notice of meetings or other actions
affecting stockholders (except as provided in Section 25 hereof), or to receive
dividends or subscription rights, or otherwise, in each case until such Right
or the Rights represented by such Right Certificate shall have been exercised
in accordance with the provisions hereof.
Section 18. CONCERNING THE RIGHTS AGENT.
(a) The Company agrees to pay to the Rights Agent reasonable compensation
for all services rendered by it hereunder and, from time to time, on demand of
the Rights Agent, its reasonable expenses and counsel fees and disbursements
and other disbursements incurred in the administration and execution of this
Agreement and the exercise and performance of its duties hereunder. The
Company also agrees to indemnify the Rights Agent for, and to hold it harmless
against, any loss, liability, or expense, incurred without negligence, bad
faith or willful misconduct on the part of the Rights Agent, for anything done
or omitted by the Rights Agent in connection with the acceptance and
administration of this Agreement,
25
including the costs and expenses of defending against any claim of liability
in the premises. Notwithstanding anything in this Agreement to the contrary,
in no event shall the Rights Agent be liable for special, indirect or
consequential loss or damage of any kind whatsoever, even if the Rights Agent
has been advised of the likelihood of such loss or damage and regardless of
the form of action.
(b) The Rights Agent shall be protected and shall incur no liability for
or in respect of any action taken, suffered or omitted by it in connection with
its administration of this Agreement in reliance upon any Rights Certificate or
certificate for a Common Share or for other securities of the Company,
instrument of assignment or transfer, power of attorney, endorsement,
affidavit, letter, notice, direction, consent, certificate, statement, or other
paper or document believed by it to be genuine and to be signed, executed and,
where necessary, verified or acknowledged, by the proper Person or Persons.
Section 19. MERGER OR CONSOLIDATION OR CHANGE OF NAME OF RIGHTS AGENT.
(a) Any corporation into which the Rights Agent or any successor Rights
Agent may be merged or with which it may be consolidated, or any corporation
resulting from any merger or consolidation to which the Rights Agent or any
successor Rights Agent shall be a party, or any corporation succeeding to the
corporate trust or stock transfer business of the Rights Agent or any successor
Rights Agent, shall be the successor to the Rights Agent under this Agreement
without the execution or filing of any paper or any further act on the part of
any of the parties hereto; PROVIDED, HOWEVER, that such corporation would be
eligible for appointment as a successor Rights Agent under the provisions of
Section 21 hereof. In case at the time such successor Rights Agent shall
succeed to the agency created by this Agreement, any of the Rights Certificates
shall have been countersigned but not delivered, any such successor Rights
Agent may adopt the countersignature of a predecessor Rights Agent and deliver
such Rights Certificates so countersigned; and in case at that time any of the
Rights Certificates shall not have been countersigned, any successor Rights
Agent may countersign such Rights Certificates either in the name of the
predecessor or in the name of the successor Rights Agent; and in all such cases
such Rights Certificates shall 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 shall be 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.
Section 20. DUTIES OF RIGHTS AGENT. The Rights Agent undertakes the
duties and obligations imposed by this Agreement upon the following terms and
conditions, by all of
25
which the Company and the holders of Rights Certificates, by their acceptance
thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel (who may be legal
counsel for the Company), and the opinion of such counsel shall be full and
complete authorization and protection to the Rights Agent as to any action
taken or omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Agreement the
Rights Agent shall deem it necessary or desirable that any fact or matter
(including without limitation, the identity of any 10% Shareholder and the
determination of Current Market Price) be proved or established by the Company
prior to taking or suffering any action hereunder, such fact or matter (unless
other evidence in respect thereof be herein specifically prescribed) may be
deemed to be conclusively proved and established by a certificate signed by the
Chairman of the Board, the President, any Vice President, the Treasurer, any
Assistant Treasurer, the Secretary or any Assistant Secretary of the Company
and delivered to the Rights Agent; and such certificate shall be full
authorization to the Rights Agent for any action taken or suffered in good
faith by it under the provisions of this Agreement in reliance upon such
certificate.
(c) The Rights Agent shall be liable hereunder only for its own
negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of the
statements of fact or recitals contained in this Agreement or in the Rights
Certificates or be required to verify the same (except as to its
countersignature on such Rights Certificates), but all such statements and
recitals are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be under any responsibility in respect of
the validity of this Agreement or the execution and delivery hereof (except the
due execution hereof by the Rights Agent) or in respect of the validity or
execution of any Rights Certificate (except its countersignature thereof); nor
shall it be responsible for any adjustment required under the provisions of
Sections 7, 11, 13 or Section 23 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 evidenced by Rights Certificates after receipt of the certificate
described in Section 12 hereof setting forth any such adjustment); nor shall it
by any act hereunder be deemed to make any representation or warranty as to the
authorization or reservation of any shares of Common Stock or Preferred Stock
to be issued pursuant to this Agreement or any Rights Certificates or as to
whether any Common Shares or Preferred Shares will, when so issued, be validly
authorized and issued, 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,
26
instruments and assurances as may reasonably be required by the Rights Agent
for the carrying out or performing by the Rights Agent of the provisions of
this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from the
Chairman of the Board, the President, any Vice President, the Secretary, any
Assistant Secretary, the Treasurer or any Assistant Treasurer of the Company,
and to apply to such officers for advice or instructions in connection with its
duties, and it shall not be liable for any action taken or suffered to be taken
by it in good faith in accordance with instructions of any such officer.
(h) The Rights Agent and any stockholder, director, officer or employee
of the Rights Agent may buy, sell or deal in any of the Rights or other
securities of the Company or become pecuniarily interested in any transaction
in which the Company may be interested, or contract with or lend money to the
Company or otherwise act as fully and freely as though it were not Rights Agent
under this Agreement. Nothing herein shall preclude the Rights Agent from
acting in any other capacity for the Company or for any other legal entity.
(i) The Rights Agent may execute and exercise any of the rights or powers
hereby vested in it or perform any duty hereunder either itself or by or
through its attorneys or agents, and the Rights Agent shall not be answerable
or accountable for any act, default, neglect or misconduct of any such
attorneys or agents or for any loss to the Company resulting from any such act,
default, neglect or misconduct; PROVIDED, HOWEVER, reasonable care was
exercised 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
there shall be reasonable grounds for believing that repayment of such funds or
adequate indemnification against such risk or liability is not reasonably
assured to it.
(k) If, with respect to any Rights Certificate surrendered to the Rights
Agent for exercise or transfer, the certificate attached to the form of
assignment or form of election to purchase as the case may be, has not been
completed, the Rights Agent shall not take any further action with respect to
such requested exercise of transfer without first consulting with the Company.
Section 21. CHANGE OF RIGHTS AGENT. The Rights Agent or any successor
Rights Agent may resign and be discharged from its duties under this Agreement
upon thirty (30) days' notice in writing mailed to the Company, and to each
transfer agent of the Common Shares and Preferred Shares by registered or
certified mail, and to the holders of the Rights Certificates by first-class
mail. The Company may remove the Rights Agent or any successor Rights Agent
(with or without cause) upon thirty (30) days' notice in writing, mailed to the
Rights Agent or successor Rights Agent, as the case may be, and to each
transfer agent of the Common Shares and Preferred Shares, by registered or
certified mail, and to the holders of the Rights Certificates by first-class
mail. If the Rights Agent shall
27
resign or be removed or shall otherwise become incapable of acting, the
Company shall appoint a successor to the Rights Agent. If the Company shall
fail to make such appointment within a period of thirty (30) days after
giving notice of such removal or after it has been notified in writing of
such resignation or incapacity by the resigning or incapacitated Rights Agent
or by the holder of a Rights Certificate (who shall, with such notice, submit
his Rights Certificate for inspection by the Company), then the incumbent
Rights Agent or any registered holder of any Rights Certificate may apply to
any court of competent jurisdiction for the appointment of a new Rights
Agent. Any successor Rights Agent, whether appointed by the Company or by
such a court, shall be (a) a corporation organized and doing business under
the laws of the United States or of any other state of the United States in
good standing, which is authorized under such laws to exercise corporate
trust or stock transfer powers or (b) an affiliate of a corporation described
in clause (a) of this sentence. After appointment, the successor Rights
Agent shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named as Rights Agent without
further act or deed; but the predecessor Rights Agent shall deliver and
transfer to the successor Rights Agent any property at the time held by it
hereunder, and execute and deliver any further assurance, conveyance, act or
deed necessary for the purpose. Not later than the effective date of any
such appointment, the Company shall file notice thereof in writing with the
predecessor Rights Agent and each transfer agent of the Common Shares and the
Preferred Shares, and a mail a notice thereof in writing to the registered
holders of the Rights Certificates. Failure to give any notice provided for
in this Section 21, however, or any defect therein, shall not affect the
legality or validity of the resignation or removal of the Rights Agent or the
appointment of the successor Rights Agent, as the case may be.
Section 22. ISSUANCE OF NEW RIGHT CERTIFICATES. Notwithstanding any of
the provisions of this Agreement or of the Right Certificates to the contrary,
the Company may, at its option (subject to Section 4 hereof), issue new Right
Certificates in such form as may be approved by the Board of Directors in order
to reflect any adjustment or change in the Exercise Price and the number or
kind or class of shares or other securities or property purchasable upon
exercise of the Rights in accordance with the provisions of this Agreement.
Section 23. REDEMPTION OF RIGHTS.
(a) Until the earliest of (i) the date of the first
Section 11(a)(ii) Event, (ii) the date of the first Section 13(a) Event or
(iii) the Expiration Date, the Board of Directors of the Company may, at its
option, authorize and direct the redemption of all, but not less than all, of
the then outstanding Rights at a redemption price of $.001 per Right, as such
redemption price shall be appropriately adjusted to reflect any stock split,
stock dividend or similar transaction occurring after the date hereof (the
"Redemption Price"), and the Company shall so redeem the Rights; PROVIDED,
HOWEVER, that from and after the date of the first Section 11(a)(ii) Event, the
Rights shall not be redeemable.
(b) Immediately upon the action of the Board of Directors of the
Company authorizing and directing the redemption of the Rights pursuant to
subsection (a) of this
28
Section 23, or at such time and date thereafter as it may specify, and
without any further action and without any notice, the right to exercise
Rights shall terminate and the only right thereafter of the holders of Rights
shall be to receive the Redemption Price. Within 10 Business Days after the
date of such action, the Company shall give notice of such redemption to the
holders of Rights by mailing such notice to all holders of Rights at their
last addresses as they appear upon the registry books of the Rights Agent or,
if prior to the Distribution Date, on the registry books of the transfer
agent for the Common Shares. Any notice that is mailed in the manner herein
provided shall be deemed given, whether or not the holder receives such
notice, but neither the failure to give any such notice nor any defect
therein shall affect the legality or validity of such redemption. Each such
notice of redemption shall state the method by which the payment of the
Redemption Price will be made. Neither the Company nor any of its Affiliates
or Associates may, directly or indirectly, redeem, acquire or purchase for
value any Rights in any manner other than that specifically set forth in
Section 24 hereof or in this Section 23, and other than in connection with
the purchase of Common Shares prior to the earlier of the date of the first
Section 11(a)(ii) Event or the date of the first Section 13(a) Event.
(c) The Company may, at its option, pay the Redemption Price in
cash, Common Shares, Preferred Shares, other equity securities of the Company,
debt securities of the Company, other property or any combination of the
foregoing, in each case having an aggregate Current Market Price on the
Redemption Date equal to the Redemption Price.
Section 24. EXCHANGE OF RIGHTS.
(a) At any time after the 10% Ownership Date and prior to the first
date thereafter upon which a 10% Stockholder, together with all Affiliates and
Associates of such 10% Stockholder, shall be the Beneficial Owner of 50% or
more of the Voting Shares then outstanding, the Board of Directors of the
Company may, at its option, authorize and direct the exchange of all, but not
less than all, of the then outstanding Rights for Common Shares at an exchange
ratio (the "Exchange Ratio") per Right, equal to that number of Common Shares
which, as of the date of the Board of Directors' action, has a Current Market
Price equal to the difference between the Exercise Price and the Current Market
Price of the Common Shares that each holder of a Right would otherwise have the
right to receive upon the exercise of a Right on such date.
(b) Immediately upon the action of the Board of Directors of the
Company authorizing and directing the exchange of the Rights pursuant to
subsection (a) of this Section 24, or at such time and date thereafter as it
may specify, and without any further action and without any notice, the right
to exercise Rights shall terminate and the only right thereafter of the holders
of Rights shall be to receive a number of Common Shares equal to the Exchange
Ratio. Within 10 Business Days after the date of such action, the Company
shall give notice of such exchange to the holders of Rights by mailing such
notice to all holders of Rights at their last addresses as they appear upon the
registry books of the Rights Agent or, if prior to the Distribution Date, on
the registry books of the transfer agent for the
29
Common Shares. Any notice that is mailed in the manner herein provided shall
be deemed given, whether or not the holder receives such notice, but neither
the failure to give any such notice nor any defect therein shall affect the
legality or validity of such exchange. Each such notice of exchange shall
state the method by which the Rights will be exchanged for Common Shares.
Neither the Company nor any of its Affiliates or Associates may, directly or
indirectly, redeem, acquire or purchase for value any Rights in any manner
other than (i) as specifically set forth in Section 23 hereof, (ii) as
specifically set forth in this Section 24 or (iii) in connection with the
purchase of Common Shares prior to the earlier of the date of the first
Section 11(a)(ii) Event or the date of the first Section 13(a) Event.
(c) In any exchange pursuant to this Section 24, the Company, at its
option, may substitute (i) cash, (ii) other equity securities of the Company
(including, but not limited to, Common Share Equivalents), (iii) debt
securities of the Company, (iv) other property or (v) any combination of the
foregoing for the Common Shares exchangeable for Rights, as appropriately
adjusted. Subject to Section 7(d) hereof, in the event that the Company takes
any action pursuant to this Section 24, such action shall apply uniformly to
all outstanding Rights.
Section 25. NOTICE OF CERTAIN EVENTS.
(a) In the event that the Company shall propose (i) to declare or
pay any dividend payable on or make any distribution with respect to its Common
Shares or Preferred Shares (other than a regular quarterly cash dividend),
(ii) to offer to the holders of its Common Shares or Preferred Shares options,
rights or warrants to subscribe for or to purchase any additional shares
thereof or shares of stock of any class or any other securities, rights or
options, (iii) to effect any reclassification of its Common Shares or Preferred
Shares (other than a reclassification involving only the subdivision of
outstanding shares), (iv) to effect any consolidation or merger with or into,
or to effect any sale or other transfer (or to permit one or more of its
Subsidiaries to effect any sale or other transfer), in one or more
transactions, of more than 50% of the assets or earning power of the Company
and its Subsidiaries (taken as a whole) to, any other Person or Persons, or
(v) to effect the liquidation, dissolution or winding up of the Company, then
and in each such case, the Company shall give to each holder of a Right
Certificate and to the Rights Agent, in accordance with Section 26 hereof, a
notice of such proposed action, that shall specify the record date for the
purpose of such dividend or distribution, or the date upon which such
reclassification, consolidation, merger, sale, transfer, liquidation,
dissolution or winding up is to take place and the date of participation
therein by the holders of record of the Common Shares or Preferred Shares, if
any such date is to be fixed, and such notice shall be so given in the case of
any action covered by clause (i) or (ii) above at least 20 days prior to the
record date for determining holders of the Common Shares or Preferred Shares
for purposes of such action, and in the case of any such other action, at least
20 days prior to the date of the taking of such proposed action or the date of
participation therein by the holders of the Common Shares or Preferred Shares,
whichever date shall be the earlier. The failure to give the notice
30
required by this Section 25 or any defect therein shall not affect the
legality or validity of the action taken by the Company or the vote upon any
such action.
(b) Upon the occurrence of each Section 11(a)(ii) Event and each
Section 13(a) Event, the Company shall as soon as practicable thereafter give
to each holder of a Right Certificate and to the Rights Agent, in accordance
with Section 26 hereof, a notice of the occurrence of such event, specifying
the event and the consequences of the event to holders of Rights under
Sections 11 and 13 hereof.
Section 26. NOTICES. Notices or demands authorized by this Agreement to
be given or made by the Rights Agent or by the holder of any Right Certificate
to or on the Company shall be sufficiently given or made if sent by first-class
mail, postage prepaid, addressed (until another address is filed in writing
with the Rights Agent) as follows:
▇▇▇▇▇ Financial
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Secretary
Subject to the provisions of Section 21 hereof, any notice or demand
authorized by this Agreement to be given or made by the Company or by the
holder of any Right Certificate to or on the Rights Agent shall be sufficiently
given or made if sent by first-class mail, postage prepaid, addressed (until
another address is filed in writing with the Company) to the principal stock
transfer office of the Rights Agent as follows:
ChaseMellon Shareholder Services, L.L.C.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Relationship Manager
Notices or demands authorized by this Agreement to be given or made by the
Company or the Rights Agent to the holder of any Right Certificate shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed to such holder at the address of such holder as shown on the registry
books of the Company or the transfer agent.
Section 27. SUPPLEMENTS AND AMENDMENTS.
(a) The Board of Directors of the Company may, from time to time,
before and after the Distribution Date, without the approval of any holders of
Rights, supplement or amend any provision of this Agreement in any manner,
whether or not such supplement or amendment is adverse to any holder of Rights,
and direct the Rights Agent so to supplement or amend such provision, and the
Rights Agent shall so supplement or amend such provision; PROVIDED, HOWEVER,
that from and after the earliest of (i) the date of the first Section 11(a)(ii)
Event, (ii) the date of the first Section 13(a) Event, (iii) the Redemption
Date or (iv) the Expiration Date, this Agreement shall not be supplemented or
amended in
31
any manner that would materially and adversely affect any holder of
outstanding Rights other than a 10% Stockholder or a Surviving Person; AND
PROVIDED FURTHER, HOWEVER, that from and after the date of the first Section
11(a)(ii) Event, the Agreement shall not be supplemented or amended in any
manner.
(b) From and after the earlier of the date of the first
Section 11(a)(ii) Event or the date of the first Section 13(a) Event and prior
to the earlier of the Redemption Date or the Expiration Date, the Company shall
not effect any amendment to the Certificate of Designations for the Preferred
Shares that would materially and adversely affect the rights, privileges or
preferences of the Preferred Shares without the prior approval of the holders
of two-thirds or more of the then outstanding Rights.
(c) Upon the delivery of a certificate from an appropriate officer
of the Company which states that the proposed supplement or amendment is in
compliance with the terms of this section, the Rights Agent shall execute such
supplement or amendment. Notwithstanding any other provision hereof, the
Rights Agent's consent must be obtained regarding any amendment or supplement
pursuant to this Section 27 which alters the Rights Agent's rights or duties.
Section 28. CERTAIN COVENANTS. Subject to Section 27 hereof and the
other provisions of this Agreement, from and after the earlier of the date of
the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event
and prior to the earlier of the Redemption Date or the Expiration Date, the
Company shall not (a) issue or sell, or permit any Subsidiary to issue or sell,
to a 10% Stockholder or a Surviving Person, or any Affiliate or Associate of a
10% Stockholder or a Surviving Person, or any Person holding Voting Shares of
the Company that are Beneficially Owned by a 10% Stockholder or a Surviving
Person, (i) any rights, options, warrants or convertible securities on terms
similar to, or that materially adversely affect the value of, the Rights or
(ii) Preferred Shares, Common Shares or shares of any other class of capital
stock, if such sale is intended to or would materially adversely affect the
value of the Rights, or (b) take any other action that is intended to or would
materially adversely affect the value of the Rights.
Section 29. 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.
Section 30. BENEFITS OF THIS AGREEMENT. Nothing in this Agreement shall
be construed to give to any Person other than the Company, the Rights Agent,
the registered holders of the Right Certificates (other than those representing
Rights that have become null and void) and the certificates for Common Shares
representing Rights (other than those Rights that have become null and void)
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, such registered holders of Right Certificates and such
certificates for Common Shares representing Rights.
32
Section 31. SEVERABILITY. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.
Section 32. GOVERNING LAW. This Agreement and each Right Certificate
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 made and
performed entirely within such state.
Section 33. COUNTERPARTS. This Agreement may be executed in any number
of counterparts and each such counterpart shall for all purposes be deemed to
be an original and all such counterparts shall together constitute but one and
the same instrument.
Section 34. DESCRIPTIVE HEADINGS. Descriptive headings of the several
sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
▇▇▇▇▇ Financial
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Sr. V.P.
ChaseMellon Shareholder Services, L.L.C.,
as Rights Agent
By: /s/ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
Title: Relationship Manager
33
EXHIBIT A
FORM OF
RIGHT CERTIFICATE
CERTIFICATE NO. R-___________ RIGHTS
NOT EXERCISABLE AFTER OCTOBER 1, 2008 OR EARLIER IF REDEEMED OR
EXCHANGED. THE RIGHTS ARE SUBJECT TO EARLIER EXPIRATION, REDEMPTION
AND EXCHANGE ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER
CERTAIN CIRCUMSTANCES SPECIFIED IN THE RIGHTS AGREEMENT, RIGHTS
BENEFICIALLY OWNED BY CERTAIN PERSONS OR ANY SUBSEQUENT HOLDER OF
SUCH RIGHTS MAY BECOME NULL AND VOID.
RIGHT CERTIFICATE
▇▇▇▇▇ FINANCIAL
This certifies that ______________________, or registered assigns, is the
registered owner of the number of Rights set forth above, each of which
entitles the owner thereof, subject to the terms and conditions of a Rights
Agreement (the "Rights Agreement") dated as of October 1, 1998 by and between
▇▇▇▇▇ Financial, a Delaware corporation (the "Company"), and ChaseMellon
Shareholder Services, L.L.C. (the "Rights Agent"), to purchase from the Company
at any time prior to the earlier of the Redemption Date (as such term is
defined in the Rights Agreement) or 5:00 o'clock p.m., California time, on
October 1, 2008, at the office or agency of the Rights Agent at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at the office of its
successor as Rights Agent, one one-hundredth (1/100th) of a fully paid and
nonassessable share of Series B Junior Participating Cumulative Preferred
Stock, par value $0.01 per share, of the Company (a "Preferred Share") or, in
certain circumstances, other securities or other property, at a purchase price
of $100.00 (One Hundred Dollars) per one one-hundredth (1/100th) of a Preferred
Share (the "Exercise Price"), upon presentation and surrender of this Right
Certificate with the Form of Election to Purchase, including Certificate, on
the reverse side hereof completed and duly executed, with signature guaranteed.
The number of Rights represented by this Right Certificate and the
Exercise Price set forth above are the number of Rights and the Exercise Price
as of October 1, 1998, based upon the Preferred Shares as constituted on such
date. As provided in the Rights Agreement, the Exercise Price and the number
of Preferred Shares or other securities or other property
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that may be purchased upon the exercise of the Rights represented by this
Right Certificate are subject to modification and adjustment upon the
occurrence of certain events.
The Rights Agreement contains a full description of the rights,
limitations of rights, obligations, duties and immunities of the Rights Agent,
the Company and the holders of Right Certificates. This Right Certificate is
subject to all the terms and conditions of the Rights Agreement, which terms
and conditions are hereby incorporated herein by reference and made a part
hereof. Copies of the Rights Agreement are on file at the principal executive
offices of the Company and the above-mentioned offices of the Rights Agent.
This Right Certificate, with or without other Right Certificates, upon
presentation and surrender at the above-mentioned offices of the Rights Agent,
with the Form of Assignment, including Certificate, on the reverse side hereof
completed and duly executed, with signature guaranteed, may be exchanged for
another Right Certificate or Right Certificates of like tenor and date
representing Rights entitling the holder thereof to purchase a like aggregate
number of Preferred Shares or, in certain circumstances, other securities or
other property, as the Rights represented by the Right Certificate or Right
Certificates surrendered shall have entitled such holder to purchase. If this
Right Certificate shall be exercised in part, the holder shall be entitled to
receive, upon the surrender hereof with the Form of Election to Purchase,
including Certificate, on the reverse side hereof completed and duly executed,
with signature guaranteed, another Right Certificate or Right Certificates for
the number of whole Rights not exercised. Subject to the provisions of the
Rights Agreement, the Rights represented by this Right Certificate may be
redeemed by the Company, at its option, at a redemption price of $0.001 per
Right or, upon the occurrence of certain events, the Company, at its option,
may exchange such Rights for fully paid and nonassessable shares of Common
Stock, par value $0.01 per share, of the Company at an exchange ratio, per
Right, of that number of Common Shares (as defined in the Rights Agreement)
which, as of the date of the Board of Directors' action, has a Current Market
Price (as defined in the Rights Agreement) equal to the difference between the
Exercise Price and the Current Market Price of the Common Shares which each
holder of a Right would have a right to receive upon the exercise of a Right on
such date.
No fractional securities shall be issued upon the exercise of any Right or
Rights represented hereby (other than fractions of Preferred Shares that are
integral multiples of one one-hundredth (1/100th) of a Preferred Share, that
may, at the option of the Company, be represented by depository receipts), but
in lieu thereof, a cash payment shall be made, as provided in the Rights
Agreement.
No holder of this Right Certificate, as such, shall be entitled to vote or
receive dividends or be deemed for any purpose the holder of the Preferred
Shares or other securities of the Company that may at any time be issuable on
the exercise hereof, nor shall anything contained 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
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any corporate action, or to receive notice of meetings or other actions
affecting stockholders (except as provided in the Rights Agreement), or to
receive dividends or subscription rights, until the Right or Rights
represented by this Right Certificate shall have been exercised as provided
in the Rights Agreement.
This Right Certificate shall not be valid or obligatory for any purpose
until it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the Company and
its corporate seal. Dated as of _______________________, ____.
Attest: ▇▇▇▇▇ Financial
By By
---------------------------- -----------------------------
Name: Name:
Title: Title:
Countersigned:
_________________________________
By By
---------------------------- -----------------------------
Name: Name:
Title: Title:
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FORM OF REVERSE SIDE OF RIGHT CERTIFICATE
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder desires to
transfer any or all of the Rights represented by this Right Certificate)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto __________________________________________________________________________
__________________________________________________________________________
(Name, address and social security or other
identifying number of transferee)
___________________________________________ (_____________) of the Rights
represented by this Right Certificate, together with all right, title and
interest in and to said Rights, and hereby irrevocably constitutes and appoints
__________________ attorney to transfer said Rights on the books of ▇▇▇▇▇
Financial with full power of substitution.
Dated:________________, ____ ___________________________________
(Signature)
Signature Guaranteed:
A-4
FORM OF REVERSE SIDE OF RIGHT CERTIFICATE
(CONTINUED)
FORM OF ELECTION TO PURCHASE
(To be executed by the registered holder if such holder desires to
exercise any or all of the Rights represented by this Right Certificate)
To ▇▇▇▇▇ Financial:
The undersigned hereby irrevocably elects to exercise
_________________________ (_____________) of the Rights represented by this
Right Certificate to purchase the following:
(Check one of the following boxes)
the Preferred Shares or other securities or property
issuable upon the exercise of said number of Rights
pursuant to Section 7(c) of the Rights Agreement.
the shares of the Common Stock, par value $0.01 per
share, of the Company, or other securities or
property issuable upon the exercise of said number
of Rights pursuant to Section 11(a)(ii) of the
Rights Agreement.
the securities issuable upon the exercise of said
number of Rights pursuant to Section 13(a) of the
Rights Agreement.
The undersigned hereby requests that any such property and a certificate
for any such securities be issued in the name of and delivered to:
---------------------------------------------------------------------------
(Name, address and social security or other
identifying number of issuee)
The undersigned hereby further requests that if said number of Rights
shall not be all the Rights represented by this Right Certificate, a new Right
Certificate for the remaining balance of such Rights be issued in the name of
and delivered to:
---------------------------------------------------------------------------
(Name, address and social security or other
identifying number of issuee)
Dated:________________, ____ ___________________________________
(Signature)
Signature Guaranteed:
A-5
FORM OF REVERSE SIDE OF RIGHT CERTIFICATE
(CONTINUED)
CERTIFICATE
(TO BE COMPLETED, IF TRUE)
The undersigned hereby certifies that the Rights represented by this Right
Certificate are not Beneficially Owned by a 10% Stockholder or an Affiliate or
Associate of a 10% Stockholder (as such capitalized terms are defined in the
Rights Agreement).
Dated:________________, ____ ___________________________________
(Signature)
Signature Guaranteed:
NOTICE
The signatures to the foregoing Assignment and the foregoing Certificate,
if applicable, must correspond to the name as written upon the face of this
Right Certificate in every particular, without alteration or enlargement or any
change whatsoever, and must be guaranteed by a member firm of a registered
national securities exchange, a member of the National Association of
Securities Dealers, Inc., or a commercial bank or trust company having an
office or correspondent in the United States.
In the event that the foregoing Certificate is not duly executed, with
signature guaranteed, the Company may deem the Rights represented by this Right
Certificate to be Beneficially Owned by a 10% Stockholder or an Affiliate or
Associate of a 10% Stockholder (as such capitalized terms are defined in the
Rights Agreement), and not issue any property or certificate for securities
upon the exercise of this Right Certificate or issue any new Right Certificate
for any remaining balance of unexercised Rights represented by this Right
Certificate.
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