EXHIBIT 1
BANCFIRST CORPORATION,
an Oklahoma corporation
and
BANCFIRST,
an Oklahoma banking corporation
Rights Agent
RIGHTS AGREEMENT
DATED AS OF FEBRUARY 25, 1999
TABLE OF CONTENTS
ITEM PAGE
---- ----
SECTION 1. CERTAIN DEFINITIONS.......................................... 1
SECTION 2. APPOINTMENT OF RIGHTS AGENT.................................. 4
SECTION 3. ISSUANCE OF RIGHT CERTIFICATES............................... 4
SECTION 4. FORM OF RIGHT CERTIFICATES................................... 5
SECTION 5. COUNTERSIGNATURE AND REGISTRATION............................ 6
SECTION 6. TRANSFER, SPLIT UP, COMBINATION AND EXCHANGE OF
RIGHT CERTIFICATES; MUTILATED, DESTROYED, LOST OR
STOLEN RIGHT CERTIFICATES.................................... 6
SECTION 7. EXERCISE OF RIGHTS; PURCHASE PRICE; EXPIRATION
DATE OF RIGHTS............................................... 6
SECTION 8. CANCELLATION AND DESTRUCTION OF
RIGHT CERTIFICATES........................................... 7
SECTION 9. RESERVATION AND AVAILABILITY OF SHARES OF
PREFERRED STOCK.............................................. 8
SECTION 10. PREFERRED STOCK RECORD DATE.................................. 8
SECTION 11. ADMUSTMENTS TO NUMBER AND KIND OF SHARES,
NUMBER OF RIGHTS OR PURCHASE PRICE........................... 9
SECTION 12. CERTIFICATION OF ADJUSTMENTS................................. 15
SECTION 13. CONSOLIDATION, MERGER OR SALE OR TRANSFER OF
ASSETS OR EARNING POWER...................................... 15
SECTION 14. FRACTIONAL RIGHTS AND FRACTIONAL SHARES...................... 17
SECTION 15. RIGHTS OF ACTION............................................. 18
SECTION 16. AGREEMENT OF RIGHT HOLDERS................................... 18
SECTION 17. RIGHT CERTIFICATE HOLDER NOT DEEMED A
SHAREOWNER................................................... 19
SECTION 18. CONERNING THE RIGHTS AGENT................................... 19
SECTION 19. MERGER OR CONSOLIDATION OR CHANGE OF NAME
TO RIGHTS AGENT.............................................. 19
TABLE OF CONTENTS, CON'T.
SECTION 20. DUTIES OF RIGHTS AGENT....................................... 19
SECTION 21. CHANGE OF RIGHTS AGENT....................................... 21
SECTION 22. ISSUANCE OF NEW RIGHT CERTIFICATES........................... 21
SECTION 23. REDEMPTION................................................... 21
SECTION 24. NOTICE OF PROPOSED ACTIONS................................... 22
SECTION 25. NOTICES...................................................... 23
SECTION 26. SUPPLEMENTS AND AMENDMENTS................................... 23
SECTION 27. SUCCESSORS................................................... 23
SECTION 28. EXCHANGE..................................................... 24
SECTION 29. BENEFITS OF THIS RIGHTS AGREEMENT............................ 24
SECTION 30. OKLAHOMA CONTRACT............................................ 24
SECTION 31. COUNTERPARTS................................................. 25
SECTION 32. DESCRIPTIVE HEADINGS......................................... 25
SECTION 33. SEVERABILITY................................................. 25
SECTION 34. DETERMINATION AND ACTIONS BY THE
BOARD OF DIRECTORS, ETC...................................... 25
EXHIBIT A CERTIFICATE OF THE VOTING POWERS,
DESIGNATION, PREFERENCES, PARTICIPATING,
OPTIONAL, OR OTHER SPECIAL RIGHTS, AND
THE QUALIFICATIONS, LIMITATIONS OR
RESTRICTIONS THEREOF, WHICH HAVE NOT
BEEN SET FORTH IN THE CERTICATE OF
INCORPORATION OR IN ANY AMENDMENT
THERETO OF THE SERIES A PREFERRED STOCK
(PAR VALUE $.01 PER SHARE) OF BANCFIRST CORPORATION.......... A-1
EXHIBIT B FORM OF RIGHT CERTIFICATE.................................... B-1
EXHIBIT C BANCFIRST CORPORATION SUMMARY OF
RIGHTS AGREEMENT............................................. C-1
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RIGHTS AGREEMENT
This agreement ("Rights Agreement"), dated February 25, 1999, between
BANCFIRST CORPORATION, an Oklahoma corporation (the "Company"), and BancFirst
(the "Rights Agent").
WITNESSETH:
WHEREAS, the Board of Directors of the Company on February 25, 1999, (i)
authorized and declared a dividend distribution of one right (a "Right") for
each share of the common stock, par value $1.00 per share ("Common Stock"), of
the Company outstanding as of the close of business on March 25, 1999 (the
"Record Date"), and authorized the issuance of the Rights as of the Record Date,
each Right representing the right to purchase one one-hundredth (1/100) of a
share of Series A Preferred Stock, par value $.01 per share of the Company
having the voting powers, designation, preferences and relative rights described
in the Certificate of Designation set forth as Exhibit A hereto ("Preferred
Stock") upon the terms and subject to the conditions hereinafter set forth, and
(ii) further authorized the issuance of one Right with respect to each share of
Common Stock of the Company that shall become outstanding between the Record
Date and the Distribution Date (as defined herein);
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein set forth, the parties hereby agree as follows:
SECTION 1. CERTAIN DEFINITIONS. For purposes of this Agreement, the
following terms shall have the meanings indicated:
(a) "Acquiring Person" shall mean any Person who, together with all
Affiliates and Associates of such Person, shall be the Beneficial Owner of
securities representing 15% or more of the Voting Power (other than as a result
of a Permitted Offer) or who was such a Beneficial Owner at any time after the
date hereof, whether or not such Person continues to be the Beneficial Owner of
securities representing 15% or more of the Voting Power; provided, however, that
the term "Acquiring Person" shall not include an Exempt Person.
(b) "Adjustment Shares" shall have the meaning set forth in Section
11(a)(ii) hereof.
(c) "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations under
the Securities Exchange Act of 1934, as amended, as in effect on the date
hereof.
(d) Except in the case of an underwriter acting in such capacity by
agreement with the Company, a Person shall be deemed the "Beneficial Owner" of,
and shall be deemed to "beneficially own", any securities:
(i) which such Person or any of such Person's Affiliates or
Associates beneficially owns, directly or indirectly;
(ii) which such Person or any of such Person's Affiliates or
Associates has (A) the right or obligation to acquire (whether such right
or obligation is exercisable or effective immediately or only after the
passage of time) pursuant to any agreement, arrangement or understanding
(whether or not in writing), or upon the exercise of conversion rights,
exchange rights, rights (other than these Rights), warrants or options, or
otherwise; PROVIDED, HOWEVER, that a Person shall not be deemed the
Beneficial Owner of, or to beneficially own, (1) securities tendered
pursuant to a tender or exchange offer made by such Person or any of such
Person's Affiliates or Associates until such tendered securities are
accepted for purchase or exchange, (2) securities which such Person would
have a right to acquire on the exercise of Rights at any time prior to the
occurrence of a Triggering Event or (3) securities issuable upon exercise
of Rights from and after the occurrence of a Triggering Event if such
Rights were acquired by such Person or any of such Person's Affiliates or
Associates prior to the Distribution Date or pursuant to Section 3(a) or
Section 22 hereof ("Original Rights") or pursuant to Section 11(i) hereof
in connection with an adjustment made with respect to any Original Rights;
or (B) the right to vote pursuant to any agreement, arrangement or
understanding (whether or not in writing); PROVIDED, HOWEVER, that a Person
shall not be deemed the Beneficial Owner of, or to beneficially own, any
securities under this clause (B) if the agreement, arrangement or
understanding to vote such security (1) arises solely from a revocable
proxy or consent given in response to a public proxy or consent
solicitation made pursuant to, and in accordance with, the applicable rules
and regulations of the Exchange Act and (2) is not also then reportable by
such Person on Schedule 13D under the Exchange Act (or any comparable or
successor report); or
(iii) which are beneficially owned, directly or indirectly, by any
other Person with which such Person or any of such Person's Affiliates or
Associates has any agreement, arrangement or understanding (whether or not
in writing) for the purpose of acquiring, holding, voting (except as
described in clause (B) of subparagraph (ii) of this paragraph (d)) or
disposing of any securities of the Company.
(e) "Business Day" shall mean any day other than a Saturday, Sunday, or a
day on which banking institutions in the State of Oklahoma are authorized or
obligated by law or executive order to close.
(f) "Close of Business" on any given date shall mean 5:00 P.M., Oklahoma
City time, on such date; PROVIDED, HOWEVER, that if such date is not a Business
Day, it shall mean 5:00 P.M., Oklahoma City time, on the next succeeding
Business Day.
(g) "Common Stock", when used with reference to the Company, shall mean
the common stock (presently par value $1.00 per share) of the Company. "Common
Stock", when used with reference to any Person other than the Company, shall
mean the capital stock with the greatest voting power or the equity securities
or other equity interest having the power to control or direct the management of
such Person or, if such Person is a Subsidiary of or is controlled by another
Person, the Person which ultimately controls such first-mentioned Person.
(h) "Common Stock Equivalents" shall have the meaning set forth in
Section 11(a)(iii) hereof.
(i) "Company" shall have the meaning set forth in the preamble.
(j) "Current Market Price" shall have the meaning set forth in Section
11(d) hereof.
(k) "Current Value" shall have the meaning set forth in Section
11(a)(iii) hereof.
(l) "Distribution Date" shall have the meaning set forth in Section 3(a)
hereof.
(m) "Equivalent Preferred Stock" shall have the meaning set forth in
Section 11(b) hereof.
(n) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
(o) "Exchange Ratio" shall have the meaning set forth in Section 28(a)
hereof.
(p) "Exempt Person" shall mean:
(i) the Company, any subsidiary of the Company, any employee
benefit plan or employee stock plan of the Company or any subsidiary of the
Company, or any person or entity organized, appointed, established or
holding Common Stock or other securities of the Company for or pursuant to
the terms of any such plan;
(ii) any Person who becomes an Acquiring Person solely by virtue of
a reduction in the number
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of outstanding shares of Common Stock; PROVIDED, HOWEVER, that such Person
shall not be an Exempt Person if, subsequent to such reduction, such Person
shall become the Beneficial Owner of, or commence a tender or exchange
offer for, any additional shares of Common Stock; and
(iii) any individual, corporation, partnership or other person,
entity or group which "beneficially owned" on February 25, 1999, 15% or
more of the outstanding Common Stock of the Corporation.
(q) "Expiration Date" shall have the meaning set forth in Section 7(a)
hereof.
(r) "Final Expiration Date" shall have the meaning set forth in Section
7(a) hereof.
(s) "Nasdaq" shall mean the Nasdaq National Market System.
(t) "Permitted Offer" shall have the meaning set forth in Section
11(a)(ii) hereof.
(u) "Person" shall mean any individual, firm, corporation, partnership or
other entity.
(v) "Preferred Stock" shall have the meaning set forth in the preamble.
(w) "Principal Party" shall have the meaning set forth in Section 13(b)
hereof.
(x) "Purchase Price" shall have the meaning set forth in Section 7(b)
hereof, except as otherwise provided in Section 11(a)(ii) and Section 13(a)
hereof.
(y) "Record Date" shall have the meaning set forth in the preamble.
(z) "Redemption Price" shall have the meaning set forth in Section 23(a)
hereof.
(aa) "Right" shall have the meaning set forth in the preamble.
(bb) "Rights Agent" shall have the meaning set forth in the preamble.
(cc) "Right Certificate" shall have the meaning set forth in Section 3(a)
hereof.
(dd) "Section 11(a)(ii) Event" shall have the meaning set forth in Section
11(a)(ii) hereof.
(ee) "Section 13 Event" shall mean any event described in clause (i), (ii)
or (iii) of Section 13(a) hereof.
(ff) "Securities Act" shall mean the Securities Act of 1933, as amended.
(gg) "Stock Acquisition Date" shall mean the first date of a public
announcement by the Company or an Acquiring Person that an Acquiring Person has
become such or such earlier date as a majority of the Board of Directors shall
become aware of the existence of an Acquiring Person.
(hh) "Substitution Period" shall have the meaning set forth in Section
11(a)(iii) hereof.
(ii) "Subsidiary" of a Person shall mean any corporation or other entity
of which securities or other ownership interests having ordinary voting power
sufficient to elect a majority of the board of directors or other persons
performing similar functions are beneficially owned, directly or indirectly, by
such Person and any corporation or other entity that is otherwise controlled by
such Person.
(jj) "Summary of Rights" shall have the meaning set forth in Section 3(b)
hereof.
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(kk) "Trading Day" shall have the meaning set forth in Section 11(d)(i)
hereof.
(ll) "Triggering Event" shall mean any event described in Section
11(a)(ii) or Section 13(a) hereof.
(mm) "Voting Power" shall mean the voting power of all securities of the
Company then outstanding generally entitled to vote for the election of
directors of the Company.
Any determination required by the definitions contained in this Section 1
shall be made by the Board of Directors of the Company in its good faith
judgment, which determination shall be binding on the Rights Agent and the
holders of the Rights.
SECTION 2. APPOINTMENT OF RIGHTS AGENT. The Company hereby appoints the
Rights Agent to act as agent for the Company in accordance with the terms and
conditions hereof, and the Rights Agent hereby accepts such appointment. The
Company may from time to time appoint such Co-Rights Agents as it may deem
necessary or desirable.
SECTION 3. ISSUANCE OF RIGHT CERTIFICATES.
(a) Until the close of business on the earlier to occur of (i) the tenth
day following the Stock Acquisition Date or (ii) the tenth day after the date of
the commencement by any Person (other than an Exempt Person) of, or the first
public announcement of the intent of any Person (other than an Exempt Person) to
commence, a tender or exchange offer, upon the successful consummation of which
such Person, together with its Affiliates and Associates, would be the
Beneficial Owner of Common Stock and/or other securities representing 15% or
more of the Voting Power (irrespective of whether any shares are actually
purchased pursuant to such offer) (the earliest of such dates, including any
date that is after the date of this Agreement and prior to the Record Date,
being referred to herein as the "Distribution Date"), (x) the Rights will be
evidenced (subject to the provisions of Section 3(c) hereof) by the certificates
for the Common Stock registered in the names of the holders of the Common Stock
and not by separate certificates, and (y) each Right will be transferable only
in connection with the transfer of a share (subject to adjustment as hereinafter
provided) of Common Stock. As soon as practicable after the Distribution Date,
the Rights Agent will send, by first-class, postage prepaid mail, to each record
holder of the Common Stock as of the close of business on the Distribution Date,
at the address of such holder shown on the records of the Company, a certificate
in substantially the form of Exhibit B hereto ("Right Certificate") evidencing
one Right for each share of Common Stock so held, subject to adjustment as
herein provided. In the event that an adjustment in the number of Rights per
share of Common Stock has been made pursuant to Section 11(i) or Section 11(p)
hereof, at the time of distribution of the Right Certificate, the Company may
elect to make the necessary and appropriate rounding adjustments (in accordance
with Section 14(a) hereof) so that Right Certificates representing only whole
numbers of Rights are distributed and cash is paid in lieu of any fractional
Rights. As of and after the Distribution Date, the Rights will be evidenced
solely by such Right Certificates.
(b) As soon as practicable following the Record Date, the Company will
send a copy of a Summary of Rights to Purchase Preferred Stock, substantially in
the form attached hereto as Exhibit C ("Summary of Rights"), by postage prepaid
mail, to each record holder of Common Stock as of the close of business on the
Record Date, at the address of such holder shown on the records of the Company.
(c) With respect to certificates for Common Stock outstanding as of the
Record Date, until the Distribution Date (or, if earlier, the Expiration Date),
the Rights will be evidenced by certificates for Common Stock registered in the
names of the holders thereof, together with a copy of the Summary of Rights, and
the registered holders of the Common Stock shall also be the registered holders
of the associated Rights. Until the Distribution Date (or, if earlier, the
Expiration Date), the surrender for transfer of any certificate for Common Stock
outstanding on the Record Date, with or without a copy of the Summary of Rights
attached thereto, shall also constitute the surrender for transfer of the Rights
associated with the Common Stock represented thereby.
(d) Rights shall be issued in respect of all shares of Common Stock which
are issued (whether originally
4
issued or from the Company's treasury) after the Record Date but prior to the
earlier of the Distribution Date or the Expiration Date and, in certain
circumstances provided for in Section 22 hereof, may be issued in respect of
shares of Common Stock that become outstanding after the Distribution Date.
Certificates representing such shares of Common Stock shall also be deemed to be
certificates for Rights, and shall bear the following legend:
This certificate also evidences and entitles the holder hereof to certain
Rights as set forth in a Rights Agreement between BancFirst Corporation and
BancFirst as Rights Agent, dated February 25, 1999 (the "Rights
Agreement"), the terms of which are incorporated herein by reference and a
copy of which is on file at the principal executive office of BancFirst
Corporation. Under certain circumstances, as set forth in the Rights
Agreement, such Rights will be evidenced by separate certificates and will
no longer be evidenced by this certificate. BancFirst Corporation will
mail to the holder of record of this certificate a copy of the Rights
Agreement, without charge, within five days after receipt of a written
request therefor. Under certain circumstances, as provided in the Rights
Agreement, Rights issued to or beneficially owned by Acquiring Persons or
their Associates or Affiliates (as defined in the Rights Agreement) or any
purported subsequent holder of such Rights will become null and void.
With respect to such certificates containing the foregoing legend, the
Rights associated with the Common Stock represented by such certificates shall,
until the Distribution Date, be evidenced by such certificates alone, and
registered holders of Common Stock shall also be the registered holders of the
associated Rights and the surrender for transfer of any such certificate shall
also constitute the surrender for transfer of the Rights associated with the
Common Stock represented thereby.
SECTION 4. FORM OF RIGHT CERTIFICATES.
(a) The Right Certificates (and the forms of election to purchase shares
and of assignment to be printed on the reverse thereof), when, as and if issued,
shall be substantially in the form set forth in Exhibit B 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 Rights Agreement, or as may be required
to comply with any law or with any rule or regulation made pursuant thereto or
with any rule or regulation of any stock exchange on which the Rights may from
time to time be listed, or to conform to usage. Subject to the provisions of
Sections 11 and 22 hereof, the Right Certificates evidencing the Rights,
whenever issued, shall be dated as of the Record Date, and on their face Right
Certificates shall entitle the holders thereof to purchase such number of one
one-hundredth (1/100) of a share of Preferred Stock, or other securities or
property as provided herein, as the same may from time to time be adjusted as
provided herein, at the Purchase Price.
(b) Notwithstanding any other provisions of this Rights Agreement, any
Right Certificate that represents Rights that may be or may have been at any
time on or after the Distribution Date beneficially owned by an Acquiring Person
or any Affiliate or Associate thereof (or any purported transferee of such
Rights) may have impressed on, printed on, written on or otherwise affixed to it
the following legend:
The beneficial owner of the Rights represented by this Right Certificate
may be an Acquiring Person or an Affiliate or Associate (as defined in the
Rights Agreement) of an Acquiring Person or a subsequent holder of such
Right Certificate beneficially owned by such Persons. Accordingly, under
certain circumstances as provided in the Rights Agreement, this Right
Certificate and the Rights represented hereby will be null and void.
The provisions of this Rights Agreement shall be operative whether or not
the foregoing legend is imprinted on any such Right Certificate. The Company
shall give notice to the Rights Agent promptly after it becomes aware of the
existence of any Acquiring Person or any Associate or Affiliate thereof.
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SECTION 5. COUNTERSIGNATURE AND REGISTRATION.
(a) The Right Certificates shall be signed or signed by facsimile on
behalf of the Company by the Chairman or President and the Secretary or
Treasurer or an Assistant Secretary or Assistant Treasurer, and shall have
affixed thereto the Company's seal or a facsimile thereof. The Right
Certificates shall be countersigned by the Rights Agent, manually, or where
permitted, in facsimile, 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 (either manually or by facsimile) shall cease to be such
officer of the Company before countersignature by the Rights Agent and issuance
and delivery by the Company, such Right Certificates nevertheless may be
countersigned by the Rights Agent, issued and delivered with the same force and
effect as though the person who signed such Right Certificates had not ceased to
be such officer of the Company; and any Right Certificate may be signed on
behalf of the Company by any person who, at the actual date of the execution of
such Right Certificate, shall be a proper officer of the Company to sign such
Right Certificate, although at the date of the execution of this Rights
Agreement any such person was not such an officer.
(b) Following the Distribution Date, the Rights Agent will keep or cause
to be kept books for registration and transfer of the Right Certificates issued
hereunder. Such books shall show the names and addresses of the respective
holders of the Right Certificates, the number of Rights evidenced on its face by
each of the Right Certificates, the date of each of the Right Certificates, and
the certificate numbers for each of the Right Certificates.
SECTION 6. TRANSFER, SPLIT UP, COMBINATION AND EXCHANGE OF RIGHT
CERTIFICATES; MUTILATED, DESTROYED, LOST OR STOLEN RIGHT CERTIFICATES.
(a) Subject to the provisions of Section 14(b) and the last three
sentences of Section 11(a)(ii) hereof, at any time after the close of business
on the Distribution Date and at or prior to the close of business on the
Expiration Date, any Right Certificate or Certificates may be (i) transferred or
(ii) split up, combined or exchanged for another Right Certificate or Right
Certificates, entitling the registered holder to purchase a like number of
shares of Preferred Stock (or other securities, as the case may be) as the Right
Certificate or Right Certificates surrendered then entitled such holder to
purchase. Any registered holder desiring to transfer any Right Certificate shall
surrender the Right Certificate at the principal office or offices of the Rights
Agent designated for such purpose, with the form of assignment on the reverse
side thereof duly endorsed (or enclose with such Right Certificate a written
instrument of transfer in a form satisfactory to the Company and the Rights
Agent), duly executed by the registered holder thereof or his or her attorney
duly authorized in writing, and with such signature duly guaranteed. Any
registered holder desiring to split up, combine or exchange any Right
Certificate shall make such request in writing delivered to the Rights Agent,
and shall surrender the Right Certificate or Right Certificates to be split up,
combined or exchanged at the principal office or offices of the Rights Agent
designated for such purpose. Thereupon the Rights Agent shall countersign and
deliver to the person entitled thereto a Right Certificate or Right
Certificates, as the case may be, as so requested. The Company may require
payment of a sum sufficient to cover any 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, if requested by the Company,
reimbursement to the Company of all reasonable expenses incidental thereto, and
upon surrender to the Rights Agent and cancellation of the Right Certificate if
mutilated, the Company will execute and deliver a new Right Certificate of like
tenor to the Rights Agent for delivery to the registered owner in lieu of the
Right Certificate so lost, stolen, destroyed or mutilated.
SECTION 7. EXERCISE OF RIGHTS; PURCHASE PRICE; EXPIRATION DATE OF RIGHTS.
(a) Subject to the last three sentences of Section 11(a)(ii) hereof or as
otherwise provided herein, the registered holder of any Right Certificate may
exercise the Rights evidenced thereby in whole at any time after the
Distribution Date, or in part from time to time after the Distribution Date,
upon surrender of the Right Certificate, with the form of election to purchase
on the reverse side thereof duly executed (with such signature duly guaranteed),
to the Rights Agent at the principal office or offices of the Rights Agent
designated for such purpose, together with payment of the Purchase Price with
respect to each Right exercised, subject to adjustment as hereinafter provided,
at or prior to
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the time (the "Expiration Date") which is the earlier of (i) the close of
business on February 25, 2009 ("Final Expiration Date"), (ii) the action of the
Board of Directors of the Company ordering the redemption of Rights pursuant to
Section 23 hereof or (iii) the action of the Board of Directors of the Company
ordering the exchange of Rights pursuant to Section 28 hereof.
(b) The purchase price for each one one-hundredth (1/100) of a share of
Preferred Stock (the "Purchase Price") issuable pursuant to the exercise of a
Right shall initially be $110 and, along with the number of shares of Preferred
Stock or other securities or consideration to be acquired upon exercise of a
Right, shall be subject to adjustment from time to time as provided in Sections
11 and 13 hereof. The Purchase Price shall be payable in lawful money of the
United States of America, in accordance with Section 7(c) hereof.
(c) Except as provided in Section 7(d) hereof, upon receipt of a Right
Certificate representing exercisable Rights with the form of election to
purchase duly executed, accompanied by payment of the Purchase Price or so much
thereof as is necessary for the shares to be purchased and an amount equal to
any applicable transfer tax, by cash, certified check or official bank check
payable to the order of the Company or the Rights Agent, the Rights Agent,
subject to Section 20(i) hereof, shall thereupon promptly (i) (A) requisition
from any transfer agent for the Preferred Stock certificates (or certificates
representing other securities, as the case may be) for the number of shares of
Preferred Stock (or other securities, as the case may be) so elected to be
purchased, and the Company will comply and hereby authorizes and directs such
transfer agent to comply with all such requests or (B) if the Company, in its
sole discretion, shall have elected to deposit the shares of Preferred Stock or
other securities issuable upon exercise of the Rights hereunder into a
depositary, requisition from the depositary agent depositary receipts
representing such number of one one-hundredth of a share of Preferred Stock as
are to be purchased (in which case certificates for the shares of Preferred
Stock or other securities represented by such receipts shall be deposited by the
transfer agent with the depositary agent) and the Company will direct the
depositary agent to comply with such request, (ii) requisition from the Company
the amount of cash to be paid in lieu of issuance of fractional shares in
accordance with Section 14(b) hereof and (iii) promptly after receipt of such
Preferred Stock certificates (or certificates representing other securities, as
the case may be) or depositary receipts cause the same to be delivered to or
upon the order of the registered holder of such Right Certificate, registered in
such name or names as may be designated by such holder, and, when appropriate,
after receipt promptly deliver such cash to or upon the order of the registered
holder of such Right Certificate. In the event that the Company is obligated to
issue other securities of the Company, pay cash and/or distribute other property
pursuant to Section 11(a) or Section 28 hereof, the Company will make all
arrangements necessary so that such other securities, cash and/or other property
are available for distribution by the Rights Agent, if and when appropriate. In
addition, in the case of an exercise of the Rights by a holder pursuant to
Section 11(a)(ii), the Rights Agent shall return such Right Certificate to the
registered holder thereof after imprinting, stamping or otherwise indicating
thereon that the rights represented by such Right Certificate no longer include
the rights provided by Section 11(a)(ii) of the Rights Agreement and if less
than all the Rights represented by such Right Certificate were so exercised, the
Rights Agent shall indicate on the Right Certificate the number of Rights
represented thereby which continue to include the rights provided by Section
11(a)(ii).
(d) Notwithstanding anything in this Agreement to the contrary, neither
the Rights Agent nor the Company shall be obligated to undertake any action with
respect to a registered holder upon the occurrence of any purported exercise as
set forth in this Section 7 unless such registered holder shall have (i)
completed and signed the certificate contained in the form of election to
purchase set forth on the reverse side of the Right Certificate surrendered for
such exercise and (ii) provided such additional evidence of the identity of the
Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates
thereof as the Company shall reasonably request.
SECTION 8. CANCELLATION AND DESTRUCTION OF RIGHT CERTIFICATES.
All 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 cancelled
form, or, if surrendered to the Rights Agent, shall be cancelled by it, and no
Right Certificates shall be issued in lieu thereof except as expressly permitted
by any of the provisions of this Rights Agreement. The Company shall deliver to
the Rights Agent for cancellation and retirement, and the Rights Agent shall so
cancel and retire, any Right Certificate purchased or acquired by the Company
otherwise than upon the exercise thereof. The Rights Agent shall
7
deliver all cancelled Right Certificates to the Company, or shall, at the
written request of the Company, destroy such cancelled Right Certificates, and
in such case shall deliver a certificate of destruction thereof to the Company.
SECTION 9. RESERVATION AND AVAILABILITY OF SHARES OF PREFERRED STOCK.
(a) The Company covenants and agrees that at all times it will cause to
be reserved and kept available, out of and to the extent of its authorized and
unissued shares of Preferred Stock not reserved for another purpose (and,
following the occurrence of a Triggering Event, other securities) or shares of
Preferred Stock not reserved for another purpose (and, following the occurrence
of a Triggering Event, other securities) held in its treasury, the number of
shares of Preferred Stock (and, following the occurrence of a Triggering Event,
other securities) that, as provided in this Agreement, will be sufficient to
permit the exercise in full of all outstanding Rights; PROVIDED, HOWEVER, that
the Company shall not be required to reserve and keep available shares of Common
Stock or other securities sufficient to permit the exercise in full of all
outstanding Rights pursuant to the adjustments set forth in Section 11(a)(ii),
Section 11(a)(iii) or Section 13 hereof unless, and only to the extent that, the
Rights become exercisable pursuant to such adjustments.
(b) The Company shall (i) use its best efforts to cause, from and after
such time as the Rights become exercisable, the Rights and all shares of
Preferred Stock (and following the occurrence of a Triggering Event, other
securities) issued or reserved for issuance upon exercise thereof to be listed
by the Nasdaq or any other securities exchanges, upon notice of issuance upon
such exercise, and (ii) if then necessary to permit the offer and issuance of
such shares of Preferred Stock (and, following the occurrence of a Triggering
Event, other securities), register and qualify such shares of Preferred Stock
(and, following the occurrence of a Triggering Event, other securities) under
the Securities Act and any applicable state securities or "blue sky" laws (to
the extent exemptions therefrom are not available), cause the related
registration statement and qualifications to become effective as soon as
possible after filing and keep such registration statement and qualifications
effective until the Expiration Date. The Company may temporarily suspend, for a
period of time not to exceed 90 days, the exercisability of the Rights in order
to prepare and file a registration statement under the Securities Act and permit
it to become effective. Upon any such suspension, the Company shall issue a
public announcement stating that the exercisability of the Rights has been
temporarily suspended, as well as a public announcement at such time as the
suspension is no longer in effect. Notwithstanding any provision of this
Agreement to the contrary, the Rights shall not be exercisable in any
jurisdiction unless the requisite qualification in such jurisdiction shall have
been obtained and until a registration statement under the Securities Act (if
required) shall have been declared effective.
(c) The Company covenants and agrees that it will take all such action as
may be necessary to insure that all shares of Preferred Stock (and following the
occurrence of a Triggering Event, other securities) delivered upon exercise of
Rights shall, at the time of delivery of the certificates of such shares
(subject to payment of the Purchase Price in respect thereof), be duly and
validly authorized and issued and fully paid and nonassessable shares in
accordance with applicable law.
(d) The Company further covenants and agrees that it will pay when due
and payable any and all federal and state transfer taxes and charges which may
be payable in respect of the issuance or delivery of the Right Certificates or
of any shares of Preferred Stock (or other securities, as the case may be) upon
the exercise of Rights. The Company shall not, however, be required to pay any
transfer tax which may be payable in respect of any transfer or delivery of
Right Certificates to a Person other than, or the issuance or delivery of
certificates for Preferred Stock (or other securities, as the case may be) upon
exercise of Rights in a name other than that of, the registered holder of the
Right Certificate, and the Company shall not be required to issue or deliver a
Right Certificate or certificate for Preferred Stock (or other securities, as
the case may be) to a person other than such registered holder 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.
SECTION 10. PREFERRED STOCK RECORD DATE.
Each Person in whose name any certificate for shares of Preferred Stock (or
other securities, as the case may be) is issued upon the exercise of Rights
shall for all purposes be deemed to have become the holder of record of the
8
Preferred Stock (or other securities, as the case may be) represented thereby
on, and such certificate shall be dated, the date upon which the Right
Certificate evidencing such rights was duly surrendered and payment of the
Purchase Price (and any applicable transfer taxes) was made; PROVIDED, HOWEVER,
that if the date of such presentation and payment is a date upon which the
Preferred Stock transfer books of the Company are closed, such person shall be
deemed to have become the record holder of such shares on, and such certificate
shall be dated, the next succeeding Business Day on which the Preferred Stock
transfer books of the Company are open.
SECTION 11. ADJUSTMENTS TO NUMBER AND KIND OF SHARES, NUMBER OF RIGHTS OR
PURCHASE PRICE.
The number and kind of shares subject to purchase upon the exercise of each
Right, the number of Rights outstanding and the Purchase Price are subject to
adjustment from time to time as provided in this Section 11.
(a) (i) In the event the Company shall at any time after the Record
Date (A) declare or pay any dividend on Preferred Stock payable in shares of
Preferred Stock, (B) subdivide or split the outstanding shares of Preferred
Stock into a greater number of shares, (C) combine or consolidate the
outstanding shares of Preferred Stock into a smaller number of shares or effect
a reverse split of the outstanding shares of Preferred Stock or (D) issue any
shares of its capital stock in a reclassification of the Preferred Stock
(including any such reclassification in connection with a consolidation or
merger in which the Company is the continuing or surviving corporation), except
as otherwise provided in this Section 11(a), the Purchase Price in effect at the
time of the record date for such dividend or of the effective date of such
subdivision, combination or reclassification, and the number and kind of shares
of Preferred Stock or capital stock, as the case may be, issuable on such date,
shall be proportionately adjusted so that the holder of any Right exercised
after such time shall be entitled to receive, upon payment of the Purchase Price
then in effect, the aggregate number and kind of shares of Preferred Stock or
capital stock, as the case may be, which, if such Right had been exercised
immediately prior to such date, the holder thereof would have owned, or would be
deemed to have owned, upon such exercise and been entitled to receive by virtue
of such dividend, subdivision, combination or reclassification. If an event
occurs which would require an adjustment under both this Section 11(a)(i) and
Section 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i)
shall be in addition to, and shall be made prior to, any adjustment required
pursuant to Section 11(a)(ii).
(ii) In the event any Person at any time after the date of this
Rights Agreement becomes an Acquiring Person, other than pursuant to a
tender or exchange offer for all outstanding shares of Common Stock at a
price and on terms that at least a majority of the members of the Board of
Directors of the Company who are not officers of the Company and who are
not Acquiring Persons or Affiliates, Associates, nominees or
representatives of an Acquiring Person, determines prior to the time such
tender or exchange offer is made to be both adequate and otherwise in the
best interests of the Company, its shareowners (other than the Acquiring
Person or an Affiliate or Associate thereof on whose behalf the offer is
being made), and any other constituency which may appropriately be
considered (a "Permitted Offer"), or any Exempt Person who is the
beneficial owner of Common Stock and/or other securities representing 15%
or more of the Voting Power shall fail to continue to qualify as an Exempt
Person (either of such events being herein referred to as a "Section
11(a)(ii) Event"), then, subject to Section 23(a) hereof, and except as
otherwise provided in this Section 11, each holder of a Right shall
thereafter have a right to receive for each Right, upon exercise thereof in
accordance with the terms of this Rights Agreement and payment of the
Purchase Price, in lieu of shares of Preferred Stock, such number of shares
of Common Stock of the Company as shall equal the result obtained by (x)
multiplying the then current Purchase Price by the number of one one-
hundredths of a share of Preferred Stock for which a Right was exercisable
immediately prior to the first occurrence of a Section 11(a)(ii) Event, and
(y) dividing that product (such product, following such first occurrence,
shall be referred to as the "Purchase Price" with respect to each Right for
all purposes of this Agreement) by 50% of the Current Market Price per
share of Common Stock on the date of such first occurrence (such number of
shares is herein called the "Adjustment Shares"); PROVIDED that the
Purchase Price and the number of Adjustment Shares shall be further
adjusted as provided in this Agreement to reflect any events occurring
after the date of such first occurrence; and PROVIDED, FURTHER, that if the
transaction that would otherwise give rise to the foregoing adjustment is
also subject to the provisions of Section 13 hereof, then only the
provisions of Section 13 hereof shall apply and no adjustment shall be made
pursuant to this Section 11(a)(ii). Notwithstanding the
9
foregoing, from and after the occurrence of a Section 11(a)(ii) Event, any
Rights that are or were beneficially owned by (x) the Acquiring Person or
any Associate or Affiliate of the Acquiring Person, (y) a transferee of
such Acquiring Person or any Associate or Affiliate who became a transferee
after the Acquiring Person became such or (z) a transferee of such
Acquiring Person or any such Associate or Affiliate who becomes a
transferee prior to or concurrently with the Acquiring Person becoming such
pursuant to either (I) a transfer from the Acquiring Person to holders of
its equity securities or to any Person with whom it has any continuing
agreement, arrangement or understanding regarding the transferred Rights or
(II) a transfer which the Board of Directors has determined is part of a
plan, arrangement or understanding which has the purpose or effect of
avoiding the provisions of this paragraph, and subsequent transferees of
such Persons, shall be null and void without any further action and any
purported holder of such Rights shall thereafter have no rights whatsoever
with respect to such Rights under any provision of this Rights Agreement.
The Company shall use all reasonable effort to ensure that the provisions
of this Section 11(a)(ii) and of Section 4(b) hereof are complied with, but
shall have no liability to any holder of Right Certificates or other Person
as a result of its failure to make any determinations with respect to an
Acquiring Person or its Affiliates, Associates or transferees hereunder. No
Right Certificate shall be issued pursuant to Section 3 hereof that
represents Rights beneficially owned by an Acquiring Person whose Rights
would be void pursuant to the provisions of this paragraph or any Associate
or Affiliate thereof; no Right Certificate shall be issued at any time upon
the transfer of any Rights to any Acquiring Person whose Rights would be
void pursuant to the provisions of this paragraph or any Associate or
Affiliate thereof or to any nominee of such Acquiring Person, Associate or
Affiliate; and any Right Certificate delivered to the Rights Agent for
transfer to an Acquiring Person whose Rights would be void pursuant to the
provisions of this paragraph shall be cancelled.
(iii) In the event that the number of shares of Common Stock which
are authorized by the Company's Certificate of Incorporation but not
outstanding or reserved for issuance for purposes other than upon exercise
of the Rights is not sufficient to permit the exercise in full of the
Rights in accordance with Section 11(a)(ii) and the Rights shall become so
exercisable, to the extent permitted by applicable law and any agreements
in effect on the date hereof to which the Company is a party, the Company
shall: (A) determine the value of the Adjustment Shares issuable upon the
exercise of a Right (the "Current Value") and (B) with respect to each
Right, upon exercise of such Right, issue shares of Common Stock to the
extent available for the exercise in full of such Right and, to the extent
shares of Common Stock are not so available, make adequate provision to
substitute for the Adjustment Shares not received upon exercise of such
Right (1) other equity securities of the Company, including, without
limitation, shares, or units of shares, of preferred stock irrespective of
the voting rights associated with any units or shares of preferred stock,
which the Board of Directors of the Company has deemed to have
substantially the same value as shares of Common Stock (such shares or
units of shares of preferred stock are herein called "Common Stock
Equivalents"), (2) debt securities of the Company, (3) other assets, (4) a
reduction in the Purchase Price, (5) cash, or (6) any combination of the
foregoing, having a value which, when added to the value of the shares of
Common Stock actually issued upon exercise of such Right, shall have an
aggregate value equal to the Current Value, where such aggregate value has
been determined by the Board of Directors of the Company based upon the
advice of a nationally recognized independent investment banking firm;
PROVIDED, HOWEVER, if the Company shall not have made adequate provision to
deliver value pursuant to clause (B) above within 30 days following the
later of the Stock Acquisition Date or the date on which the Company's
right of redemption pursuant to Section 23(a) expires then to the extent
permitted by applicable law and any agreement in effect on the date hereof
to which the Company is a party the Company shall be obligated to deliver,
upon the surrender for exercise of a Right and without requiring payment of
the Purchase Price, shares of Common Stock (to the extent available) or
Common Stock Equivalents and then, if necessary, cash, which shares and/or
cash have an aggregate value equal to the excess of the Current Value over
the Purchase Price; PROVIDED FURTHER that, notwithstanding anything
contained herein to the contrary, the Board of Directors may determine that
the aggregate value of any cash, debt securities and other assets issued or
distributed by the Company upon exercise of the Rights shall not exceed the
amount of cash that the Company would be entitled to receive in payment of
the Purchase Price upon exercise in full of the then exercisable Rights;
and PROVIDED FURTHER that the Company shall have the option, but not the
obligation, to require actual payment of the Purchase Price upon exercise
of a Right only to the extent that the Purchase Price exceeds the amount of
cash that the holder of such Right would be entitled to receive from the
Company pursuant to this Section 11(a)(iii).
10
If the Board of Directors of the Company shall determine in good faith that
it is likely that sufficient additional shares of Common Stock or Common
Stock Equivalents could be authorized for issuance upon exercise in full of
the Rights, the 30 day period set forth above may be extended to the extent
necessary, but not more than 90 days, in order that the Company may seek
shareowner approval for the authorization of such additional shares (such
30 day period, as it may be extended, is herein called the "Substitution
Period"). To the extent that the Company determines that some action need
be taken pursuant to the first and/or second sentence of this Section
11(a)(iii), the Company (x) shall provide, subject to the last three
sentences of Section 11(a)(ii) hereof, that such action shall apply
uniformly to all outstanding and exercisable Rights, and (y) may suspend
the exercisability of the Rights until the expiration of the Substitution
Period in order to seek any authorization of additional shares and/or to
decide the appropriate form of distribution to be made pursuant to such
first sentence and to determine the value thereof. In the event of any such
suspension, the Company shall issue a public announcement stating that the
exercisability of the Rights has been temporarily suspended, as well as a
public announcement at such time as the suspension is no longer in effect.
For purposes of this Section 11(a)(iii), the value of the Common Stock
shall be the Current Market Price per share of the Common Stock on the
Stock Acquisition Date and the per share or per unit value of any Common
Stock Equivalent shall be deemed to equal the Current Market Price per
share of the Common Stock on such date. The Board of Directors may, but
shall not be required to, establish procedures to allocate the right to
receive Common Stock upon the exercise of the Rights among holders of
Rights pursuant to this Section 11(a)(iii).
(b) In case the Company shall fix a record date for the issuance of
rights (other than the Rights), options or warrants to all holders of Common or
Preferred Stock entitling them to subscribe for or purchase (for a period
expiring within 45 calendar days after such record date) Preferred Stock, shares
having the same rights, privileges and preferences as the Preferred Stock
("Equivalent Preferred Stock") or securities convertible into Preferred Stock or
Equivalent Preferred Stock at a price per share of Preferred Stock or Equivalent
Preferred Stock (or having a conversion price per share, if a security
convertible into Preferred Stock or Equivalent Preferred Stock) less than the
current market price per share of Preferred Stock on such record date, the
Purchase Price to be in effect after such record date shall be determined by
multiplying the Purchase Price in effect immediately prior to such record date
by a fraction, the numerator of which shall be the number of shares of Preferred
Stock outstanding on such record date, plus the number of shares of Preferred
Stock which the aggregate offering price of the total number of shares of
Preferred Stock and/or Equivalent Preferred Stock so to be offered (and/or the
aggregate initial conversion price of the convertible securities so to be
offered) would purchase at such current market price, and the denominator of
which shall be the number of shares of Preferred Stock outstanding on such
record date, plus the number of additional shares of Preferred Stock and/or
Equivalent Preferred Stock to be offered for subscription or purchase (or into
which the convertible securities so to be offered are initially convertible). In
case such subscription price may be paid by delivery of consideration part or
all of which may be in a form other than cash, the value of such non-cash
consideration shall be as determined in good faith by the Board of Directors of
the Company, whose determination shall be described in a statement filed with
the Rights Agent. Shares of Preferred Stock owned by or held for the account of
the Company shall not be deemed outstanding for the purpose of any such
computation. Such adjustment shall be made successively whenever such a record
date is fixed and, in the event that such rights or warrants are not so issued,
the Purchase Price shall be adjusted to be the Purchase Price which would then
be in effect if such record date had not been fixed.
(c) In case the Company shall fix a record date for a distribution to all
holders of Preferred Stock (including any such distribution made in connection
with a consolidation or merger in which the Company is the continuing
corporation) of evidences of indebtedness, cash (other than an ordinary
dividend), assets (other than a dividend payable in Preferred Stock, but
including any dividend payable in stock other than Preferred Stock) or
subscription rights or warrants (excluding those referred to in Section 11(b)
hereof), the Purchase Price to be in effect after such record date shall be
determined by multiplying the Purchase Price in effect immediately prior to such
record date by a fraction, the numerator of which shall be the current market
price per share of Preferred Stock on such record date, less the fair market
value (as determined in good faith by the Board of Directors of the Company,
whose determination shall be described in a statement filed with the Rights
Agent) of the portion of the cash, assets or evidences of indebtedness so to be
distributed or of such subscription rights or warrants applicable to a share of
Preferred Stock and the denominator of which shall be such current market price
per share of Preferred Stock. Such adjustments shall be made successively
whenever such a record date is fixed; and in the event that such distribution is
not so made, the Purchase Price shall be adjusted to be the Purchase Price which
would have been in effect if such
11
record date had not been fixed.
(d) (i) For the purpose of any computation hereunder, other than
computations made pursuant to Section 11(a)(iii) hereof, the "Current Market
Price" per share of Common Stock on any date shall be deemed to be the average
of the daily closing prices per share of Common Stock for the 30 consecutive
Trading Days (as such term is hereinafter defined) immediately prior to such
date, and for purposes of computations made pursuant to Section 11(a)(iii)
hereof, the "Current Market Price" per share of the Common Stock on any date
shall be deemed to be the average of the daily closing prices per share of the
Common Stock for the 10 consecutive Trading Days immediately following such
date; PROVIDED, HOWEVER, that in the event that the Current Market Price per
share of the Common Stock is determined during a period following the
announcement by the issuer of such Common Stock of (x) any dividend or
distribution on Common Stock (other than a regular quarterly cash dividend and
other than the Rights) or (y) any subdivision, combination or reclassification
of Common Stock, and the ex-dividend date for such dividend or distribution or
the record date for such subdivision, combination or reclassification occurs
prior to the expiration of the requisite 30 Trading Day or 10 Trading Day
period, as set forth above, then, and in each such case, the Current Market
Price shall be properly adjusted to take into account ex-dividend trading. The
closing price for each day shall be the last sale price, regular way, or, in
case no such sale takes place on such day, the average of the closing bid and
asked prices, regular way, in either case as reported in the principal
consolidated transaction reporting system with respect to securities listed or
admitted to trading on the Nasdaq or, if the shares of Common Stock are not
listed or admitted to trading on the Nasdaq, as reported in the principal
consolidated transaction reporting system with respect to securities listed on
the principal national securities exchange on which the shares of Common Stock
are listed or admitted to trading or, if the shares of Common Stock are not
listed or admitted to trading on any national securities exchange, the last
quoted sale price or, if not so quoted, the average of the high bid and low
asked prices in the over-the-counter market, as reported by the National
Association of Securities Dealers, Inc., Automated Quotations System or such
other system then in use, or, if on any such date the shares of Common Stock are
not quoted by any such organization, the average of the closing bid and asked
prices as furnished by a professional market maker making a market in the Common
Stock selected by the Board of Directors of the Company. If on any such date no
market maker is making a market in the Common Stock, the fair value of such
shares on such date as determined in good faith by the Board of Directors of the
Company shall be used. The term "Trading Day" shall mean a day on which the
principal national securities exchange on which the shares of Common Stock are
listed or admitted to trading is open for the transaction of business or, if the
shares of Common Stock are not listed or admitted to trading on any national
securities exchange, a Business Day. If the Common Stock is not publicly held
or not so listed or traded, "Current Market Price" per share shall mean the fair
value per share as determined in good faith by the Board of Directors of the
Company whose determination shall be described in a statement filed with the
Rights Agent and shall be conclusive for all purposes.
(ii) For the purpose of any computation hereunder, the "current
market price" per share (or one one-hundredth of a share) of Preferred
Stock shall be determined in the same manner as set forth above for the
Common Stock in clause (i) of this Section 11(d) (other than the last
sentence thereof). If the current market price per share (or one one-
hundredth of a share) of Preferred Stock cannot be determined in the manner
provided above or if the Preferred Stock is not publicly held or listed or
traded in a manner described in clause (i) of this Section 11(d), the
"current market price" per share of Preferred Stock shall be conclusively
deemed to be an amount equal to 100 (as such number may be appropriately
adjusted for such events as stock splits, stock dividends and
recapitalizations with respect to the Common Stock occurring after the date
of this Agreement) multiplied by the Current Market Price per share of the
Common Stock and the "current market price" per one one-hundredth of a
share of Preferred Stock shall be equal to the Current Market Price per
share of the Common Stock (as appropriately adjusted). If neither the
Common Stock nor the Preferred stock is publicly held or so listed or
traded, "current market price" per share of the Preferred Stock shall mean
the fair value per share as determined in good faith by the Board of
Directors of the Company, whose determination shall be described in a
statement filed with the Rights Agent and shall be conclusive for all
purposes.
(e) Anything herein to the contrary notwithstanding, no adjustment in the
Purchase Price shall be required unless such adjustment would require an
increase or decrease of at least one percent in the Purchase Price; PROVIDED,
HOWEVER, that any adjustments which by reason of this Section 11(e) are not
required to be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this Section 11 shall be made to
the nearest cent or to the nearest one ten-thousandth of a share, as the case
may be. Notwithstanding the first
12
sentence of this Section 11(e), any adjustment required by this Section 11 shall
be made no later than the earlier of (i) three years from the date of the
transaction which mandates such adjustment, or (ii) the Final Expiration Date.
(f) If as a result of an adjustment made pursuant to Section 11(a)(i),
Section 11(a)(ii) or Section 13(a) hereof, the holder of any Right thereafter
exercised shall become entitled to receive any shares of capital stock other
than Preferred Stock, thereafter the number of such other shares so receivable
upon exercise of any Right and the Purchase Price thereof shall be subject to
adjustment from to time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to the shares of Preferred Stock
contained in βββββββ ββ(β), (β), (β), (β), (β), (β), (β), (β), (β), (β) and (p)
hereof, and the provisions of Sections 7, 9, 10, 13 and 14 hereof with respect
to the Preferred Stock shall apply on like terms to any such other shares.
(g) All Rights originally issued by the Company subsequent to any
adjustment made to the Purchase Price hereunder shall evidence the right to
purchase, at the adjusted Purchase Price, the number of fractional or whole
shares of Preferred Stock 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), upon each adjustment of the Purchase Price as a result of the
calculations made in Sections 11(b) and (c), each Right outstanding immediately
prior to the making of such adjustment shall thereafter evidence the right to
purchase, at the adjusted Purchase Price, that number of fractional or whole
shares of Preferred Stock (calculated to the nearest ten-thousandth) obtained by
(i) multiplying (x) the number of fractional or whole shares covered by a Right
immediately prior to this adjustment by (y) the Purchase Price in effect
immediately prior to such adjustment of the Purchase Price, and (ii) dividing
the product so obtained by the Purchase Price in effect immediately after such
adjustment of the Purchase Price.
(i) The Company may elect on or after the date of any adjustment of the
Purchase Price or any adjustment to the number of shares of Preferred Stock for
which a Right may be exercised, to adjust the number of Rights, in lieu of any
adjustment in the number of shares of Preferred Stock purchasable upon the
exercise of a Right. Each of the Rights outstanding after the adjustment in the
number of Rights shall be exercisable for the number of fractional or whole
shares of Preferred Stock 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
ten-thousandth) obtained by dividing the Purchase Price in effect immediately
prior to such adjustment of the Purchase Price by the Purchase Price in effect
immediately after such adjustment of the Purchase Price. The Company shall make
a public announcement of its election to adjust the number of Rights, indicating
the record date for the adjustment, and, if known at the time, the amount of the
adjustment to be made. This record date may be the date on which the Purchase
Price is adjusted or any date thereafter, but, if the Right Certificates have
been issued, shall be at least 10 days later than the date of the public
announcement. If Right Certificates have been issued, upon each adjustment of
the number of Rights pursuant to this Section 11(i), the Company shall, as
promptly as practicable, cause to be distributed to holders of record of Right
Certificates on such record date Right Certificates evidencing, subject to
Section 14 hereof, the additional Rights to which such holders shall be entitled
as a result of such adjustment, or, at the option of the Company, shall cause to
be distributed to such holders of record in substitution and replacement for the
Right Certificates held by such holders prior to the date of adjustment, and
upon surrender thereof, if required by the Company, new Right Certificates
evidencing all the Rights to which such holders shall be entitled after such
adjustment. Right Certificates so to be distributed shall be issued, executed
and countersigned in the manner provided for herein (and may bear, at the option
of the Company, the adjusted Purchase Price) and shall be registered in the
names of the holders of record of Right Certificates on the record date
specified in the public announcement.
(j) Irrespective of any adjustment or change in the Purchase Price or the
number of shares of Preferred Stock issuable upon the exercise of the Rights,
the Right Certificates theretofore and thereafter issued may continue to express
the Purchase Price and the number of shares or fraction of a share which were
expressed in the initial Right Certificates issued hereunder.
(k) Before taking any action that would cause an adjustment reducing the
Purchase Price below the then par value, if any of the shares of Preferred
Stock, Common Stock or other securities issuable upon exercise of the
13
Rights, the Company shall take any corporate action, including using its best
efforts to obtain any required shareowner approvals, which may, in the opinion
of its counsel, be necessary in order that the Company may validly and legally
issue fully paid and nonassessable shares of Preferred Stock, Common Stock or
other securities at such adjusted Purchase Price. If upon any exercise of the
Rights, a holder is to receive a combination of Common Stock and Common Stock
Equivalents, a portion of the consideration paid upon such exercise, equal to at
least the then par value, if any, of a share of Common Stock of the Company,
shall be allocated as payment for each share of Common Stock of the Company so
received.
(l) In any case in which this Section 11 shall require that an adjustment
in the Purchase Price be made effective as of a record date for a specified
event, the Company may elect to defer until the occurrence of such event the
issuance to the holder of any Right exercised after such record date the shares
of Preferred Stock and/or other securities of the Company, if any, issuable upon
such exercise over and above the shares of Preferred Stock and/or other
securities of the Company, if any, issuable upon such exercise on the basis of
the Purchase Price in effect prior to such adjustment; PROVIDED, HOWEVER, that
the Company shall deliver to such holder a due ββββ or other appropriate
instrument evidencing such holder's right to receive such additional shares of
Preferred Stock and/or other securities 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 reductions in the Purchase Price, in
addition to those adjustments expressly required by this Section 11, as and to
the extent that in their good faith judgment the Board of Directors of the
Company shall determine to be advisable in order that any (i) consolidation or
subdivision of the Preferred Stock, (ii) issuance for cash of any shares of
Preferred Stock at less than the current market price, (iii) issuance for cash
of shares of Preferred Stock or securities which by their terms are convertible
into or exchangeable for shares of Preferred Stock, (iv) stock dividends or (v)
issuance of rights, options or warrants referred to in this Section 11,
hereafter made by the Company to holders of its Preferred Stock shall not be
taxable to such shareowners.
(n) The Company covenants and agrees that it shall not, at any time after
the Distribution Date, (i) consolidate with any other Person (other than a
Subsidiary of the Company), (ii) merge with or into any other Person (other than
a Subsidiary of the Company) or (iii) sell or transfer (or permit any Subsidiary
to sell or transfer), in one transaction or a series of related transactions,
assets or earning power aggregating more than 50% of the assets or earning power
of the Company and its Subsidiaries (taken as a whole) to, any other Person or
Persons (other than the Company and/or any of its Subsidiaries), if (x) at the
time of or immediately after such consolidation, merger or sale there are any
rights, warrants or other instruments or securities outstanding or agreements in
effect which would substantially diminish or otherwise eliminate the benefits
intended to be afforded by the Rights, (y) prior to, simultaneously with or
immediately after such consolidation, merger or sale, the shareowners of the
Person who constitutes, or would constitute, the "Principal Party" for purposes
of Section 13(a) hereof shall have received a distribution of Rights previously
owned by such Person or any of its Affiliates and Associates or (z) the form or
nature of organization of the Principal Party would preclude or limit the
exercisability of the Rights. The Company shall not consummate any such
consolidation, merger, sale or transfer unless prior thereto the Company and
such other Person shall have executed and delivered to the Rights Agent a
supplemental agreement evidencing compliance with this Section 11(n).
(o) The Company covenants and agrees that, after the Distribution Date,
it will not, except as permitted by Section 23 or Section 26 hereof, take (or
permit any Subsidiary to take) any action if at the time such action is taken it
is reasonably foreseeable that such action will diminish substantially or
eliminate the benefits intended to be afforded by the Rights.
(p) Anything in this Agreement to the contrary notwithstanding, in the
event that the Company shall at any time after the Record Date and prior to the
Distribution Date (i) declare a dividend on the outstanding shares of Common
Stock payable in shares of Common Stock, (ii) subdivide the outstanding shares
of Common Stock, or (iii) combine the outstanding shares of Common Stock into a
smaller number of shares, the number of Rights associated with each share of
Common Stock then outstanding, or issued or delivered thereafter but prior to
the Distribution Date, shall be proportionately adjusted so that the number of
Rights thereafter associated with each share of Common Stock following any such
event shall equal the result obtained by multiplying the number of Rights
associated with each share
14
of Common Stock immediately prior to such event by a fraction the numerator of
which shall be the total number of shares of Common Stock outstanding
immediately prior to the occurrence of the event and the denominator of which
shall be the total number of shares of Common Stock outstanding immediately
following the occurrence of such event.
SECTION 12. CERTIFICATION OF ADJUSTMENTS. Whenever an adjustment is made
as provided in Sections 11 and 13 hereof, the Company shall (a) promptly prepare
a certificate setting forth such adjustment and a brief statement of the facts
giving rise to such adjustment, (b) promptly file with the Rights Agent and with
each transfer agent for the Common Stock a copy of such certificate and (c) mail
a brief summary thereof to each holder of record of a Right Certificate (or, if
prior to the Distribution Date, to each holder of record of a certificate
representing shares of Common Stock) in accordance with Section 25 hereof.
Notwithstanding the foregoing sentence, the failure of the Company to give such
notice shall not affect the validity of or the force or effect of or the
requirement for such adjustment. The Rights Agent shall be fully protected in
relying on any certificate prepared by the Company pursuant to Sections 11 and
13 and on any adjustment therein contained. Any adjustment to be made pursuant
to Sections 11 and 13 of this Rights Agreement shall be effective as of the date
of the event giving rise to such adjustment.
SECTION 13. CONSOLIDATION, MERGER OR SALE OR TRANSFER OF ASSETS
OR EARNING POWER.
(a) In the event that, at any time on or after the Stock Acquisition
Date, directly or indirectly, (i) the Company shall consolidate with, or merge
with and into, any other Person or Persons (other than a Subsidiary of the
Company in a transaction that complies with Section 11(o) hereof) and the
Company shall not be the surviving or continuing corporation of such
consolidation or merger or (ii) any Person or Persons (other than a Subsidiary
of the Company in a transaction that complies with Section 11(o) hereof) shall
consolidate with, or merge with and into the Company, and the Company shall be
the continuing or surviving corporation of such consolidation or merger and, in
connection with such consolidation or merger, all or part of the outstanding
shares of Common Stock of the Company shall be changed into or exchanged for
stock or other securities of any other Person or of the Company or cash or any
other property or (iii) the Company or one or more of its Subsidiaries shall
sell or otherwise transfer to any other Person (other than a Subsidiary of the
Company in a transaction that complies with Section 11(o) hereof) or any
Affiliate or Associate of such Person, in one or more transactions, or the
Company or one or more of its Subsidiaries shall sell or otherwise transfer to
any Person (other than a Subsidiary of the Company in a transaction that
complies with Section 11(o) hereof) in one or a series of related transactions,
assets or earning power aggregating more than 50% of the assets or earning power
of the Company and its Subsidiaries (taken as a whole), then, on the first
occurrence of any such event, proper provision shall be made so that (A) each
holder of record of a Right (except as otherwise provided in the last three
sentences of Section 11(a)(ii) hereof) shall thereafter have the right to
receive, upon the exercise thereof and payment of the then current Purchase
Price in accordance with the terms of this Rights Agreement, in lieu of
Preferred Stock, such number of shares of validly issued, fully paid and
nonassessable and freely tradable Common Stock of the Principal Party (as
defined herein) not subject to any liens, encumbrances, rights of first refusal
or other adverse claims, as shall be equal to the result obtained by (1)
multiplying the then current Purchase Price by the number of one one-hundredths
of a share of Preferred Stock for which a Right was exercisable immediately
prior to the first occurrence of a Section 13 Event (or, if a Section 11(a)(ii)
Event hereof has occurred prior to the first occurrence of a Section 13 Event,
multiplying the Purchase Price in effect immediately prior to the first
occurrence of a Section 11(a)(ii) Event by the number of one one-hundredths of a
share of Preferred Stock for which a right was exercisable immediately prior to
such first occurrence of a Section 11(a)(ii) Event) and (2) dividing that
product (such product, following the first occurrence of a Section 13 Event,
shall be referred to as the "Purchase Price" for all purposes of this Agreement)
by 50% of the Current Market Price (determined as provided in Section 11(d)
hereof) per share of the Common Stock of such Principal Party on the date of
consummation of such Section 13 Event (or the fair market value on such date of
other securities or property of the Principal Party, as provided for herein);
PROVIDED that the Purchase Price and the number of shares of Common Stock of
such Principal Party issuable upon exercise of each Right shall be further
adjusted as provided in this Agreement to reflect any events occurring after the
date of the first occurrence of a Section 13 Event; (B) such Principal Party
shall thereafter be liable for, and shall assume, by virtue of such Section 13
Event, all the obligations and duties of the Company pursuant to this Rights
Agreement; (C) the term "Company" for all purposes of this Rights Agreement
shall thereafter be deemed to refer to such Principal Party, it being
specifically intended that the provisions of Section 11 hereof shall only apply
to such Principal Party following the first occurrence of a Section 13 Event;
and (D) such Principal Party shall take such steps (including, but not limited
to, the reservation of a sufficient
15
number of shares of its Common Stock in accordance with Section 9 hereof) in
connection with the consummation of any such transaction as may be necessary to
assure that the provisions hereof shall thereafter be applicable, as nearly as
reasonably may be, in relation to its shares of Common Stock thereafter
deliverable upon the exercise of the Rights; PROVIDED, HOWEVER, that, upon the
subsequent occurrence of any merger, consolidation, sale of all or substantially
all assets, recapitalization, reclassification of shares, reorganization or
other extraordinary transaction in respect of such Principal Party, each holder
of a Right shall thereupon be entitled to receive, upon exercise of a Right and
payment of the Purchase Price, such cash, shares, rights, warrants and other
property which such holder would have been entitled to receive had he or she, at
the time of such transaction, owned the shares of Common Stock of the Principal
Party purchasable upon the exercise of a Right, and such Principal Party shall
take such steps (including, but not limited to, reservation of shares of stock)
as may be necessary to permit the subsequent exercise of the Rights in
accordance with the terms hereof for such cash, shares, rights, warrants and
other property.
(b) "Principal Party" shall mean (i) in the case of any transaction
described in (i) or (ii) of the first sentence of Section 13(a) hereof: (A) the
Person that is the issuer of the securities into which shares of Common Stock of
the Company are converted in such merger or consolidation or, if there is more
than one such issuer, the issuer the Common Stock of which has the greatest
market value or (B) if no securities are so issued, (x) the Person that is the
other party to the merger and that survives said merger or, if there is more
than one such Person, the Person the Common Stock of which has the greatest
market value, (y) if the Person that is the other party to the merger does not
survive the merger, the Person that does survive the merger (including the
Company if it survives) or (z) the Person resulting from the consolidation; and
(ii) in the case of any transaction described in (iii) of the first
sentence in Section 13(a) hereof, the Person that is the party receiving
the greatest portion of the assets or earning power transferred pursuant to
such transaction or transactions or, if each Person that is a party to such
transaction or transactions receives the same portion of the assets or
earning power so transferred or if the Person receiving the greatest
portion of the assets or earning power cannot be determined, whichever of
such Persons as is the issuer of Common Stock having the greatest market
value of shares outstanding;
PROVIDED, HOWEVER, that in any such case described in the foregoing (b)(i)
or (b)(ii), if the Common Stock of such Person is not at such time and has not
been continuously over the preceding 12-month period registered under Section 12
of the Exchange Act, and (1) such Person is a direct or indirect Subsidiary of
another Person the Common Stock of which is and has been so registered, the term
"Principal Party" shall refer to such other Person, (2) if such Person is a
Subsidiary, directly or indirectly, or more than one Person, the Common Stocks
of two or more of which are and have been so registered, the term "Principal
Party" shall refer to whichever of such Persons is the issuer of the Common
Stock having the greatest market value of shares outstanding and (3) in case
such Person is owned, directly or indirectly, by a joint venture formed by two
or more Persons that are not owned, directly or indirectly, by the same Person,
the rules set forth in (1) and (2) above shall apply to each of the chains of
ownership having an interest in such joint venture as if such Person were a
"Subsidiary" of both or all of such joint venturers and the Principal Parties in
each such chain shall bear the obligations set forth in this Section 13 in the
same ratio as their direct or indirect interests in such Person bear to the
total of such interests.
(c) The Company shall not consummate any consolidation, merger, sale or
transfer referred to in Section 13(a) unless prior thereto the Company and the
Principal Party involved therein shall have executed and delivered to the Rights
Agent an agreement confirming that the requirements of Sections 13(a) and (b)
hereof shall promptly be performed in accordance with their terms and that such
consolidation, merger, sale or transfer of assets shall not result in a default
by the Principal Party under this Rights Agreement as the same shall have been
assumed by the Principal Party pursuant to Sections 13(a) and (b) hereof and
further providing that, as soon as practicable after executing such agreement
pursuant to this Section 13, the Principal Party will:
(i) Prepare and file a registration statement under the Securities
Act, if necessary, with respect to the Rights and the securities
purchasable upon exercise of the Rights on an appropriate form, use its
best efforts to cause such registration statement to become effective as
soon as practicable after such filing and use its best efforts to cause
such registration statement to remain effective (with a prospectus at all
times meeting the requirements of the Securities Act) until the Final
Expiration Date, and similarly comply with applicable
16
state securities laws;
(ii) use its best efforts, if the Common Stock of the Principal
Party shall become listed on a national securities exchange, to list (or
continue the listing of) the Rights and the securities purchasable upon
exercise of the Rights on such securities exchange and, if the Common Stock
of the Principal Party shall not be listed on a national securities
exchange, to cause the Rights and the securities purchasable upon exercise
of the Rights to be listed by the Nasdaq or another national securities
exchange;
(iii) deliver to holders of the Rights historical financial
statements for the Principal Party which comply in all respects with the
requirements for registration on Form 10 (or any successor form) under the
Exchange Act; and
(iv) obtain waivers of any rights of the first refusal or
preemptive rights in respect of the shares of Common Stock of the Principal
Party subject to purchase upon exercise of outstanding Rights.
In the event that any of the transactions described in Section 13(a) hereof
shall occur at any time after the occurrence of a transaction described in
Section 11(a)(ii) hereof, the Rights shall thereafter continue to be exercisable
in the manner described in Section 13(a). The provisions of this Section 13
shall similarly apply to all successive Section 13 Events.
(d) Furthermore, in case the Principal Party which is to be a party to a
transaction referred to in this Section 13 has a provision in any of its
authorized securities or in its charter or Bylaws or other instrument governing
its corporate affairs, which provision would have the effect of (i) causing such
Principal Party to issue, in connection with, or as a consequence of, the
consummation of a transaction referred to in this Section 13, shares of Common
Stock of such Principal Party at less than the then Current Market Price
(determined pursuant to Section 11(d) hereof) or par value per share or
securities exercisable for, or convertible into, Common Stock of such Principal
Party at less than such then current market price (other than to holders of
Rights pursuant to this Section 13) or (ii) providing for any special payment,
tax or similar provisions in connection with the issuance of the Common Stock of
such Principal Party pursuant to the provisions of this Section 13, then, in
such event, the Company hereby agrees with each holder of Rights that it shall
not consummate any such transaction unless prior thereto the Company and such
Principal Party shall have executed and delivered to the Rights Agent a
supplemental agreement providing that the provision in question of such
Principal Party shall have been cancelled, waived or amended, or that the
authorized securities shall be redeemed, so that the applicable provision will
have no effect in connection with, or as a consequence of, the consummation of
the proposed transaction.
(e) Notwithstanding anything in this Agreement to the contrary, Section
13 shall not be applicable to a transaction described in subparagraphs (i) and
(ii) of Section 13(a) if: (i) such transaction is consummated with a Person or
Persons who acquired shares of Common Stock pursuant to a Permitted Offer (or a
wholly owned subsidiary of any such Person or Persons); (ii) the price per share
of Common Stock offered in such transaction is not less than the price per share
of Common Stock paid to all holders of Common Stock whose shares were purchased
pursuant to such Permitted Offer; and (iii) the form of consideration being
offered to the remaining holders of Common Stock pursuant to such transaction is
the same as the form of consideration paid pursuant to such Permitted Offer.
Upon consummation of any such transaction contemplated by this Section 13(e),
all Rights hereunder shall expire.
SECTION 14. FRACTIONAL RIGHTS AND FRACTIONAL SHARES.
(a) The Company shall not be required to issue fractions of Rights or to
distribute Right Certificates which evidence fractional Rights. In lieu of such
fractional Rights, there may be paid to the holders of record of the Right
Certificates with regard to which such fractional Rights would otherwise be
issuable an amount in cash equal to the same fraction of the then current market
value of a whole Right. For the purposes of this Section 14(a), the then
current market value of a Right shall be determined in the same manner as the
Current Market Price of a share of stock shall be determined pursuant to Section
11(d) hereof.
(b) The Company shall not be required to issue fractions of shares of
Preferred Stock (or other securities,
17
as the case may be) upon exercise of the Rights or to distribute certificates
which evidence fractional shares. Fractions of shares of Preferred Stock in
integral multiples of one one-hundredth of a share of Preferred Stock may, at
the election of the Company, be evidenced by depositary receipts, pursuant to an
appropriate agreement between the Company and a depositary selected by it,
provided that such agreement 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 the shares of Preferred Stock represented by
such depositary receipts. In lieu of issuing fractions of shares of Preferred
Stock (or other securities, as the case may be), there may be paid to the
holders of record of Right Certificates at the time such Right Certificates are
exercised as herein provided an amount in cash equal to the same fraction of the
then current market value of a share of Preferred Stock (or other securities, as
the case may be). For purposes of this Section 14(b), the then current market
value of a share of Preferred Stock (or other securities, as the case may be)
shall be the current market price thereof as determined pursuant to Section
11(d) hereof.
(c) The holder of a Right by the acceptance of a Right expressly waives
his or her right to receive any fractional Right or any fractional shares upon
exercise of a Right.
SECTION 15. RIGHTS OF ACTION. All rights of action in respect of this
Agreement, except those rights of action vested in the Rights Agent pursuant to
Section 18 and 20 hereof, are vested in the respective holders of record of the
Right Certificates (and, prior to the Distribution Date, the holders of record
of the Common Stock); and any holder of record of any Right Certificate (or,
prior to the Distribution Date, of the Common Stock), without the consent of the
Rights Agent or of the holder of any other Right Certificate (or, prior to the
Distribution Date, of the Common Stock), may, in his or her own behalf and for
his or her own benefit, enforce, and may institute and maintain any suit, action
or proceeding against the Company or any other Person to enforce, or otherwise
act in respect of, such holder's right to exercise the Rights evidenced by such
Right Certificate in the manner provided in such Right Certificate and in this
Agreement. Without limiting the foregoing or any remedies available to the
holders of Rights, it is specifically acknowledged that the holders of rights
would not have an adequate remedy at law for any breach of this Agreement and,
accordingly, that they will be entitled to specific performance of the
obligations under, and injunctive relief against actual or threatened violations
of, the obligations of any Person subject to this Agreement.
SECTION 16. AGREEMENT OF RIGHT HOLDERS. Every holder of a Right by
accepting the same consents and agrees with the Company and the Rights Agent and
with every other holder of a Right that:
(a) prior to the Distribution Date, the Rights will not be evidenced by a
Right Certificate and will be transferable only in connection with the transfer
of Common Stock;
(b) after the Distribution Date, the Right Certificates will be
transferable only on the registry books of the Rights Agent if surrendered at
the principal office or offices of the Rights Agent designated for such purpose,
duly endorsed or accompanied by a proper instrument of transfer;
(c) the Company and the Rights Agent may deem and treat the Person in
whose name the Right Certificate (or, prior to the Distribution Date, the
associated Common Stock certificate) is registered as the absolute owner thereof
and of the Rights evidenced thereby (notwithstanding any notations of ownership
or writing on the Right Certificate or the associated Common Stock certificate
made by anyone other than the Company or the Rights Agent or the transfer agent
of the Common Stock) 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, its directors, officers, employees and agents, 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.
18
SECTION 17. RIGHT CERTIFICATE HOLDER NOT DEEMED A SHAREOWNER.
No holder of a Right, as such, shall be entitled to vote, receive dividends
in respect of or be deemed for any purpose to be the holder of Preferred Stock
or any other securities of the Company which may at any time be issuable upon
the exercise of the Rights, nor shall anything contained herein or in any Right
Certificate be construed to confer upon the holder of any Right Certificate, as
such, any of the rights of a shareowner of the Company or any right to vote for
the election of directors or upon any matter submitted to shareowners at any
meeting thereof, or to give or withhold consent to any corporate action, or to
receive notice of meetings or other actions affecting shareowners, or to receive
dividends or subscription rights in respect of any such stock or securities, or
otherwise, until the Right or Rights evidenced by such Right Certificate shall
have been exercised in accordance with the provisions hereof.
SECTION 18. CONCERNING THE RIGHTS AGENT.
(a) The Company agrees to pay to the Rights Agent reasonable compensation
for all services rendered by it hereunder and, from time to time, on demand of
the Rights Agent, its reasonable expenses and counsel fees and other
disbursements incurred in the administration and execution of this Rights
Agreement and the exercise and performance of its duties hereunder. The Company
also agrees to indemnify the Rights Agent for, and to hold it harmless against,
any loss, liability or expense incurred without negligence, bad faith or willful
misconduct, or breach of this Rights Agreement on the part of the Rights Agent
for anything done or omitted to be done by the Rights Agent in connection with
the acceptance and administration of this Rights Agreement, including the cost
and expenses of defending against any claim of liability in the premises.
(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 Rights Agreement in reliance upon any Right
Certificate, certificate for Common Stock or Preferred Stock or other securities
of the Company, instrument of assignment or transfer, power of attorney,
endorsement, affidavit, letter, notice, direction, consent, certificate,
statement or other paper or document reasonably believed by it to be genuine and
to be signed, executed and, where necessary, guaranteed, 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 Rights
Agreement without the execution or filing of any paper or any further act on the
part of any of the parties hereto, PROVIDED that such corporation would be
eligible for appointment as a successor Rights Agent under the provisions of
Section 21 hereof. In the case at the time such successor Rights Agent shall
succeed to the agency created by this Rights Agreement, any of the Right
Certificates shall have been countersigned but not delivered, any such successor
Rights Agent may adopt the countersignature of the predecessor Rights Agent and
deliver such Right Certificates so countersigned; and in case at that time any
of the Right Certificates shall not have been countersigned, any successor
Rights Agent may countersign such Right Certificates either in the name of the
predecessor Rights Agent or in the name of the successor Rights Agent; and in
all such cases such Right Certificates shall have the full force provided in the
Right Certificates and in this Rights Agreement.
(b) In case at any time the name of the Rights Agent shall be changed and
at such time any of the Right Certificates shall have been countersigned but not
delivered, the Rights Agent may adopt the countersignature under its prior name
and deliver such Right Certificates so countersigned; and in case at that time
any of the Right Certificates shall not have been countersigned, the Rights
Agent may countersign such Right Certificates either in its prior name or in its
changed name; and in all such cases such Right Certificates shall have the full
force provided in the Right Certificates and in this Right Agreement.
SECTION 20. DUTIES OF RIGHTS AGENT. The Rights Agent undertakes the
duties and obligations imposed by this Rights Agreement upon the following terms
and conditions, by all of which the Company and the
19
holders of Right Certificates, by their acceptance thereof, shall be bound.
(a) The Rights Agent may consult with legal counsel (who may be legal
counsel for the Company), and the opinion of such counsel shall be full and
complete authorization and protection to the Rights Agent as to any action taken
or omitted to be taken by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Rights Agreement
the Rights Agent shall deem it necessary or desirable that any fact or matter be
proved or established by the Company prior to taking or suffering any action
hereunder, such fact or matter (unless other evidence in respect thereof be
herein specifically prescribed) may be deemed to be conclusively proved and
established by a certificate signed by the Chairman, the President, any Vice
President or the Treasurer and by 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 Rights Agreement in reliance upon such
certificate.
(c) The Rights Agent shall be liable hereunder only for its own
negligence, bad faith or willful misconduct, or breach of this Rights Agreement.
(d) The Rights Agent shall not be liable for or by reason of any of the
statements of fact or recitals contained in this Rights Agreement or in the
Right Certificates (except its countersignature thereof) or be required to
verify the same, but all such statements and recitals are and shall be deemed to
have been made by the Company only.
(e) The Rights Agent shall not be under any responsibility in respect of
the validity of this Rights Agreement or the execution and delivery hereof
(except the due execution hereof by the Rights Agent) or in respect of the
validity or execution of any Right Certificates (except its countersignature
thereof); nor shall it be responsible for any breach by the Company of any
covenant or condition contained in this Rights Agreement or in any Right
Certificate; nor shall it be responsible for any adjustment required under the
provisions of Section 11 or 13 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 Right Certificates after actual notice of any such adjustment); nor
shall it by any act hereunder be deemed to make any representation or warranty
as to the authorization or reservation of any shares of Common Stock to be
issued pursuant to this Rights Agreement or any Right Certificate or as to
whether any shares of Preferred Stock (or other securities, as the case may be)
will, when issued, be validly authorized and issued, fully paid and
nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged and delivered all such
further and other acts, instruments and assurances as may reasonably be required
by the Rights Agent for the carrying out or performing by the Rights Agent of
the provisions of this Rights Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from the
Chairman, the President, any Vice President, the Secretary or any Assistant
Secretary, or 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 shareowner, director, officer or employee of
the Rights Agent may buy, sell or deal in any of the Rights or other securities
of the Company or become pecuniarily interested in any transaction in which the
Company may be interested, or contract with or lend money to the Company or
otherwise act as fully and freely as though it were not the Rights Agent under
this Rights Agreement. Nothing herein shall preclude the Rights Agent from
acting in any other capacity for the Company or for any other entity.
(i) If, with respect to any Rights Certificate surrendered to the Rights
Agent for exercise or transfer, the certificate contained in the form of
assignment or the form of election to purchase set forth on the reverse thereof,
as the case may be, has either not been completed or indicates an affirmative
response to clause 1 and/or 2 of such certificate, the Rights Agent shall not
take any further action with respect to such requested exercise of transfer
without first
20
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 Rights
Agreement upon 30 days" notice in writing mailed to the Company and to each
transfer agent of the Common Stock by registered or certified mail, and to the
holders of record of the Right Certificates by mail. The Company may remove the
Rights Agent or any successor Rights Agent (with or without cause) upon 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 Stock by registered or
certified mail, and to the holders of record of the Right Certificates by mail.
If the Rights Agent shall resign or be removed or shall otherwise become
incapable of acting, the Company shall appoint a successor to the Rights Agent.
Notwithstanding the foregoing provisions of this Section 21, in no event shall
the resignation or removal of a Rights Agent be effective until a successor
Rights Agent shall have been appointed and have accepted such appointment. If
the Company shall fail to make such appointment within a period of 30 days after
such removal or after it has been notified in writing of such resignation or
incapacity by the resigning or incapacitated Rights Agent or by the holder of
record of a Right Certificate (who shall, with such notice, submit such holder's
Right Certificate for inspection by the Company), then the incumbent Rights
Agent or the holder of record of any Right Certificate may apply to any court of
competent jurisdiction for the appointment of a new Rights Agent. Any successor
Rights Agent, whether appointed by the Company or by such a court, shall be (a)
a corporation organized and doing business under the laws of the United States
or any State thereof, in good standing, which is authorized under such laws to
exercise corporate trust or stock transfer powers and is subject to supervision
or examination by federal or state authority and which has at the time of its
appointment as Rights Agent a combined capital and surplus of at least
$50,000,000 or (b) an Affiliate controlled by a corporation described in clause
(a) of this sentence. After appointment, the successor Rights Agent shall be
vested with the same powers, rights, duties and responsibilities as if it had
been originally named as Rights Agent without further act or deed; but the
predecessor Rights Agent shall deliver and transfer to the successor Rights
Agent any property at the time held by it hereunder, and execute and deliver any
further assurance, conveyance, act or deed necessary for the purpose. Not later
than the effective date of any such appointment the Company shall file notice
thereof in writing with the predecessor Rights Agent and each transfer agent of
the Common Stock, and mail a notice thereof in writing to the registered holders
of the Right Certificates. Failure to give any notice provided for in this
Section 21, however, or any defect therein, shall not affect the legality or
validity of the resignation or removal of the Rights Agent or the appointment of
the successor Rights Agent, as the case may be.
SECTION 22. ISSUANCE OF NEW RIGHT CERTIFICATES. Notwithstanding any of
the provisions of this Rights Agreement or of the Rights to the contrary, the
Company may, at its option, issue new Right Certificates evidencing Rights in
such form as may be approved by its Board of Directors to reflect any adjustment
or change in the Purchase Price and the number or kind or class of shares of
stock or other securities or property purchasable under the Right Certificates
made in accordance with the provisions of this Rights Agreement. In addition, in
connection with the issuance or sale of shares of Common Stock following the
Distribution Date and prior to the Expiration Date, the Company (a) shall, with
respect to shares of Common Stock so issued or sold pursuant to the exercise of
stock options or under any employee plan or arrangement, or upon the exercise,
conversion or exchange of securities hereinafter issued by the Company, and (b)
may, in any other case, if deemed necessary or appropriate by the Board of
Directors of the Company, issue Right Certificates representing the appropriate
number of Rights in connection with such issuance or sale; PROVIDED, HOWEVER,
that (i) no such Right Certificate shall be issued if, and to the extent that,
the Company shall be advised by counsel that such issuance would create a
significant risk of material adverse tax consequences to the Company or the
Person to whom such Right Certificate would be issued, and (ii) no such Right
Certificate shall be issued, if, and to the extent that, appropriate adjustment
shall otherwise have been made in lieu of the issuance thereof.
SECTION 23. REDEMPTION.
(a) The Board of Directors of the Company may, at its option, at any time
prior to the earlier of (x) the close of business on the tenth day following the
Stock Acquisition Date (which date may be extended to the extent permitted by
Section 26 hereof), (y) the close of business on the Final Expiration Date or
(z) the date the Rights are exchanged pursuant to Section 28 hereof, cause the
Company to redeem all but not less than all the then outstanding Rights at a
redemption price of $0.01 per Right, as such amount may be appropriately
adjusted to reflect any stock split,
21
stock dividend or similar transaction occurring after the date hereof (such
redemption price being hereinafter referred to as the "Redemption Price"). The
Company may, at its option, pay the Redemption Price in cash, shares of Common
Stock (based on the "Current Market Price," as defined in Section 11(d)(i)
hereof, of the shares of Common Stock at the time of redemption) or any other
form of consideration deemed appropriate by the Board of Directors.
Notwithstanding anything contained in this Agreement to the contrary, the Rights
shall not be exercisable after the first occurrence of a Section 11(a)(ii) Event
until such time as the Company's right of redemption under this Section 23(a)
has expired.
(b) In the case of a redemption under Section 23(a), immediately upon the
action of the Board of Directors of the Company ordering the redemption of the
Rights, evidence of which shall have been filed with the Rights Agent and
without any further action and without any notice, the right to exercise the
Rights will terminate and the only right thereafter of the holders of Rights
shall be to receive the Redemption Price, without any interest thereon. Within
ten days after the action of the Board of Directors ordering any such redemption
of the Rights, the Company shall give notice of such redemption of the Rights to
the Rights Agent and the holders of the then outstanding Rights by mailing such
notice to the Rights Agent and to all such holders at their last addresses as
they appear upon the registry books of the Rights Agent or, prior to the
Distribution Date, on the registry books of the Transfer Agent for the Common
Stock. Any notice which is mailed in the manner herein provided shall be deemed
given, whether or not the holder receives the notice. Each such notice of
redemption will state the method by which the payment of the Redemption Price
will be made.
In the case of a redemption permitted under Section 23(a), the Company may,
at its option, discharge all of its obligations with respect to the Rights by
(i) issuing a press release announcing the manner of redemption of the Rights
and (ii) mailing payment of the Redemption Price to the registered holders of
the Rights at their last addresses as they appear on the registry books of the
Rights Agent or, prior to the Distribution Date, on the registry books of the
Transfer Agent of the Common Stock, and upon such action, all outstanding Right
Certificates shall be null and void without any further action by the Company.
SECTION 24. NOTICE OF PROPOSED ACTIONS.
(a) In case the Company, after the earlier of the Distribution Date or
the Stock Acquisition Date, shall propose (i) to pay any dividend to the holders
of record of its Preferred Stock payable in stock of any class or to make any
other distribution to the holders of record of its Preferred Stock (other than a
regular periodic cash dividend), or (ii) to offer to the holders of record of
its Preferred Stock options, warrants, or other rights to subscribe for or to
purchase shares of Preferred Stock (including any security convertible into or
exchangeable for Preferred Stock) or shares of stock of any class or any other
securities, options, warrants, convertible or exchangeable securities or other
rights, or (iii) to effect any reclassification of its Preferred Stock or any
recapitalization or reorganization of the Company, or (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, in each such case, the Company shall give to
each holder of record of a Right Certificate, in accordance with Section 25
hereof, notice of such proposed action, which shall specify the record date for
the purposes of such dividend or distribution, or the date on which such
reclassification, recapitalization, reorganization, consolidation, merger, sale
or transfer of assets, liquidation, dissolution, or winding up is to take place
and the record date for determining participation therein by the holders of
record of Preferred Stock or Common Stock, as the case may be, if any such date
is to be fixed, and such notice shall be so given in the case of any action
covered by clause (i) or (ii) above at least 10 days prior to the record date
for determining holders of record of the Preferred Stock for purposes of such
action, and in the case of any such other action, at least 10 days prior to the
date of the taking of such proposed action or the date of participation therein
by the holders of record of Preferred Stock or Common Stock, as the case may be,
whichever shall be the earlier. The failure to give notice required by this
Section 24 or any defect therein shall not affect the legality or validity of
the action taken by the Company or the vote upon any such action.
(b) In case any of the events referred to in Section 11(a)(ii) occur or
any of the transactions referred to in Section 13 of this Rights Agreement are
proposed, then, in any such case, the Company shall give to each holder of
22
Rights, in accordance with Section 25 hereof, notice of the occurrence of such
event or proposal of such transaction as promptly as practicable which notice
shall specify the proposed event and the consequences of the event to holders of
Rights under Section 11(a)(ii) or Section 13 hereof, as the case may be, and,
upon consummating such transaction, shall similarly give notice thereof to each
holder of Rights.
SECTION 25. NOTICES. Notices or demands authorized by this Rights
Agreement to be given or made by the Rights Agent or by the holder of record of
any Right Certificate or Right to or on behalf of 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:
BANCFIRST CORPORATION
βββ βββββ ββββββββ
ββββββββ ββββ, ββββββββ βββββ
Attention: Treasurer
Subject to the provisions of Section 21 hereof, any notice or demand
authorized by this Rights Agreement to be given or made by the Company or by the
holder of record of any Right Certificate or Right to or on the Rights Agent
shall be sufficiently given or made if sent by first-class mail, postage
prepaid, addressed (until another address is filed in writing with the Company)
as follows:
BancFirst
βββ β. ββββββββ
ββββββββ ββββ, ββββββββ βββββ
Attention: Trust Department
Notices or demands authorized by this Rights Agreement to be given or made
by the Company or the Rights Agent to the holder of record of any Right
Certificate or Right shall be sufficiently given or made if sent by mail,
postage prepaid, addressed to such holder at the address of such holder as it
appears upon the registry books of the Rights Agent or, prior to the
Distribution Date, on the registry books of the Transfer Agent.
SECTION 26. SUPPLEMENTS AND AMENDMENTS. Prior to the Distribution Date
and subject to the penultimate sentence of this Section 26, the Company and the
Rights Agent shall, if the Company so directs, supplement or amend any provision
of this Agreement without the approval of any holders of Rights or certificates
representing shares of Common Stock. From and after the Distribution Date and
subject to the penultimate sentence of this Section 26, the Company and the
Rights Agent shall, if the Company so directs, supplement or amend this
Agreement without the approval of any holders of Right Certificates in order (i)
to cure any ambiguity, (ii) to correct or supplement any provision contained
herein which may be defective or inconsistent with any other provisions herein,
(iii) to shorten or lengthen any time period hereunder, or (iv) to change or
supplement the provisions hereunder in any manner which the Company may deem
necessary or desirable and which shall not adversely affect the interests of the
holders of Right Certificates (other than an Acquiring Person or an Affiliate or
Associate of an Acquiring Person); PROVIDED, this Agreement may not be
supplemented or amended to lengthen, pursuant to clause (iii) of this sentence,
a time period relating to when the Rights may be redeemed at such time as the
Rights are not then redeemable. 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 26, the Rights Agent
shall execute such supplement or amendment. Notwithstanding anything contained
in this Agreement to the contrary, no supplement or amendment shall be made
which changes the Redemption Price, the Final Expiration Date, the Purchase
Price or the number of one one-hundredths of a share of Preferred Stock for
which a Right is exercisable, unless such supplement or amendment is not made
after the occurrence of a Triggering Event and such supplement or amendment does
not adversely affect the interests of the holders of Right Certificates (other
than an Acquiring Person or an Affiliate or Associate of an Acquiring Person).
Prior to the Distribution Date, the interests of the holders of Rights shall be
deemed coincident with the interests of the holders of Common Stock.
SECTION 27. SUCCESSORS. All of the covenants and provisions of this
Rights Agreement by or for the benefit of the Company or the Rights Agent shall
bind and inure to the benefit of their respective successors and assigns
23
hereunder.
SECTION 28. EXCHANGE.
(a) The Board of Directors of the Company may, at its option, at any time
after any Person becomes an Acquiring Person, exchange all or part of the then
outstanding Rights (which shall not include Rights that have become void
pursuant to the provisions of Section 11(a)(ii) hereof) for shares of Common
Stock at an exchange ratio of one share of Common Stock per Right, appropriately
adjusted to reflect any stock split, stock dividend or similar transaction
occurring after the date hereof (such exchange ratio being hereinafter referred
to as the "Exchange Ratio"). Notwithstanding the foregoing, the Board of
Directors shall not be empowered to effect such exchange at any time after any
Person (other than an Exempt Person), with all Affiliates and Associates of such
Person, becomes the Beneficial Owner of 50% or more of the Voting Power of the
Company.
(b) Immediately upon the action of the Board of Directors of the Company
ordering the exchange of any Rights pursuant to Section 28(a) hereof and without
any further action and without any notice, the right to exercise such Rights
shall terminate and the only right thereafter of a holder of such Rights shall
be to receive that number of shares of Common Stock equal to the number of such
Rights held by such holder multiplied by the Exchange Ratio. The Company shall
promptly give public notice of any such exchange; PROVIDED, HOWEVER, that the
failure to give, or any defect in, such notice shall not affect the validity of
such exchange. The Company promptly shall mail a notice of any such exchange to
all of the holders of such Rights at their last addresses as they appear upon
the registry books of the Rights Agent, or if prior to the Distribution Date, on
the registry books of the Transfer Agent for the Common Stock. Any notice which
is mailed in the manner herein provided shall be deemed given, whether or not
the holder receives the notice. Each such notice of exchange will state the
method by which the exchange of the shares of Common Stock for Rights will be
effected and, in the event of any partial exchange, the number of Rights which
will be exchanged. Any partial exchange shall be effected pro rata based on the
number of Rights (other than Rights which have become void pursuant to the
provisions of Section 11(a)(ii) hereof) held by each holder of Rights.
(c) In any exchange pursuant to this Section 28, the Company, at its
option, may substitute Preferred Stock (or Equivalent Preferred Stock, as such
term is defined in Section 11(b) hereof) for shares of Common Stock exchangeable
for Rights, at the initial rate of one one-hundredth of a share of Preferred
Stock (or Equivalent Preferred Stock) for each share of Common Stock.
(d) In the event that there shall not be sufficient shares of Common
Stock issued but not outstanding or authorized but unissued to permit any
exchange of Rights as contemplated in accordance with this Section 28, the
Company shall take all such action as may be necessary to authorize additional
shares of Common Stock for issuance upon exchange of the Rights.
(e) The Company shall not be required to issue fractions of shares of
Common Stock or to distribute certificates which evidence fractional shares of
Common Stock. In lieu of such fractional shares of Common Stock, there shall be
paid to the registered holders of the Right Certificates with regard to which
such fractional shares of Common Stock would otherwise be issuable, an amount in
cash equal to the same fraction of the current market value of a whole share of
Common Stock. For the purposes of this Section 28(e), the current market value
of a whole share of Common Stock shall be the closing price of a share of Common
Stock (as determined pursuant to Section 11(d)(i) hereof) for the Trading Day
immediately prior to the date of exchange pursuant to this Section 28.
SECTION 29. BENEFITS OF THIS RIGHTS AGREEMENT. Nothing in this Rights
Agreement shall be construed to give to any person or corporation other than the
Company, the Rights Agent and the record holders of the Right Certificates (and,
prior to the Distribution Date, the Common Stock) any legal or equitable right,
remedy or claim under this Rights Agreement; but this Rights Agreement shall be
for the sole and exclusive benefit of the Company, the Rights Agent and the
holders of record of the Right Certificate (and, prior to the Distribution Date,
the Common Stock).
SECTION 30. OKLAHOMA CONTRACT. This Rights Agreement and each Right
Certificate issued hereunder shall be deemed to be a contract made under the
laws of the State of Oklahoma and for all purposes shall be governed by and
construed in accordance with the laws of such state applicable to contracts to
be made and performed
24
entirely within such state.
SECTION 31. COUNTERPARTS. This Rights Agreement may be executed in any
number of counterparts and each of such counterparts shall for all purposes be
deemed to be an original, and all such counterparts shall together constitute
but one and the same instrument.
SECTION 32. DESCRIPTIVE HEADINGS. Descriptive headings of the several
sections of this Rights Agreement are inserted for convenience only and shall
not control or affect the meaning or construction of any of the provisions
hereof.
SECTION 33. SEVERABILITY. If any term, provision, covenant or restriction
of this Rights Agreement is held by a court of competent jurisdiction or other
authority to be invalid, illegal, or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Rights Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.
SECTION 34. DETERMINATION AND ACTIONS BY THE BOARD OF DIRECTORS, ETC. For
all purposes of this Agreement, any calculation of the number of shares of
Common Stock outstanding at any particular time, including for purposes of
determining the particular percentage of such outstanding shares of Common Stock
or any other securities of which any Person is the Beneficial Owner, shall be
made in accordance with the last sentence of Rule 13d-3(d)(1)(i) of the General
Rules and Regulations under the Exchange Act as in effect on the date of this
Agreement. The Board of Directors of the Company shall have the exclusive power
and authority to administer this Agreement and to exercise all rights and powers
specifically granted to the Board, or the Company, or as may be necessary or
advisable in the administration of this Agreement, including, without
limitation, the right and power to (i) interpret the provisions of this
Agreement, and (ii) make all determinations deemed necessary or advisable for
the administration of this Agreement (including a determination to redeem or not
redeem the Rights or to amend the Agreement). All such actions, calculations,
interpretations and determinations (including, for purposes of clause (y) below,
all omissions with respect to the foregoing) which are done or made by the Board
in good faith, shall (x) be final, conclusive and binding on the Company, the
Rights Agent, the holders of the Right Certificates and all other parties, and
(y) not subject the Board to any liability to the holders of the Right
Certificate.
IN WITNESS WHEREOF, the parties hereto have caused this Rights Agreement to
be duly executed, all as of the day and year first above written.
Attest: BANCFIRST CORPORATION
By: /s/ βββ β. βββ By: /s/ βββββ β. ββββββββ
--------------------- ---------------------
βββ β. βββ, Vice President βββββ β. ββββββββ,President and
and Secretary Chief Executive Officer
Attest: BANCFIRST
By: /s/ ββββββ β ββββββ By: /s/ ββββββ ββββ
------------------- ---------------
25
EXHIBIT A
CERTIFICATE OF THE VOTING POWERS, DESIGNATION, PREFERENCES, PARTICIPATING,
OPTIONAL OR OTHER SPECIAL RIGHTS, AND THE QUALIFICATIONS, LIMITATIONS OR
RESTRICTIONS THEREOF, WHICH HAVE NOT BEEN SET FORTH IN THE CERTIFICATE OF
INCORPORATION OR IN ANY AMENDMENT THERETO OF THE SERIES A PREFERRED STOCK
(Par Value $.01 Per Share)
OF
BANCFIRST CORPORATION
Pursuant to Section 1032 of the General Corporation Law of the State of
Oklahoma, the undersigned hereby certifies that the following resolution was
duly adopted on February 25, 1999, by the Board of Directors of BancFirst
Corporation, an Oklahoma corporation (the "Company"), pursuant to authority
conferred on the Board of Directors by the provisions of the Certificate of
Incorporation of the Company and in accordance with the provisions of the
General Corporation Law of the State of Oklahoma, and that said resolution has
not been amended or rescinded and is in full force and effect at the date
hereof:
RESOLVED, that pursuant to authority conferred on the Board of Directors of
the Company by its Certificate of Incorporation, a series of Preferred Stock,
par value $.01 per share, is created and the designation and amount thereof and
the voting powers, preferences and relative, participating, optional or other
special rights of the shares of such series, and the qualifications, limitations
or restrictions thereof, are as follows:
SECTION 1. DESIGNATION AND AMOUNT. The shares of such series shall be
designated "Series A Preferred Stock" and the number of shares constituting such
series shall be 200,000. Shares of Series A Preferred Stock shall have a par
value of $.01 per share.
SECTION 2. DIVIDENDS AND DISTRIBUTIONS.
(A) Subject to the possible prior and superior rights of the holders of
any shares of preferred stock of the Company ranking prior and superior to the
shares of Series A Preferred Stock with respect to dividends, each holder of
Series A Preferred Stock shall be entitled to receive, when, as and if declared
by the Board of Directors out of funds legally available for that purpose: (i)
quarterly dividends payable in cash on January 15, April 15, July 15 and October
15 in each year (each such date being a "Quarterly Dividend Payment Date"),
commencing on the first Quarterly Dividend Payment Date after the first issuance
of such share of Series A Preferred Stock, in an amount per share (rounded to
the nearest cent) equal to the greater of (a) $5.00 or (b) subject to the
provision for adjustment hereinafter set forth, 100 times the aggregate per
share amount of all cash dividends declared on shares of the Common Stock of the
Company, par value $1.00 per share (the "Common Stock"), since the immediately
preceding Quarterly Dividend Payment Date, or, with respect to the first
Quarterly Dividend Payment Date, since the first issuance of a share of Series A
Preferred Stock, and (ii) subject to the provision for adjustment hereinafter
set forth, quarterly distributions (payable in kind) on each Quarterly Dividend
Payment Date in an amount per share equal to 100 times the aggregate per share
amount of all non-cash dividends or other distributions (other than a dividend
payable in shares of Common Stock or a subdivision of the outstanding shares of
Common Stock, by reclassification or otherwise) declared on shares of Common
Stock since the immediately preceding Quarterly Dividend Payment Date, or with
respect to the first Quarterly Dividend Payment Date, since the first issuance
of a share of Series A Preferred Stock. If the Quarterly Dividend Payment Date
is a Saturday, Sunday or legal holiday, then such Quarterly Dividend Payment
Date shall be the first immediately preceding calendar day which is not a
Saturday, Sunday or legal holiday. In the event that the Company shall at any
time after February 25, 1999 (the "Rights Declaration Date") (i) declare any
dividend on outstanding shares of Common Stock payable in shares of Common
Stock, (ii) subdivide outstanding shares of Common Stock, or (iii) combine
outstanding shares of Common Stock into a smaller number of shares, then in each
such case, the amount to which the holder of a share of Series A Preferred Stock
was entitled immediately prior to such event pursuant to the preceding sentence
shall be adjusted by multiplying such amount by a fraction, the numerator of
A-1
which shall be the number of shares of Common Stock that are outstanding
immediately after such event, and the denominator of which shall be the number
of shares of Common Stock that were outstanding immediately prior to such event.
(B) The Company shall declare a dividend or distribution on shares of
Series A Preferred Stock as provided in paragraph (A) above immediately after it
declares a dividend or distribution on the shares of Common Stock (other than a
dividend payable in shares of Common Stock); PROVIDED, HOWEVER, that, in the
event no dividend or distribution shall have been declared on the Common Stock
during the period between any Quarterly Dividend Payment Date and the next
subsequent Quarterly Dividend Payment Date, a dividend of $5.00 per share on the
Series A Preferred Stock shall nevertheless be payable on such subsequent
Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and shall be cumulative on each
outstanding share of Series A Preferred Stock from the Quarterly Dividend
Payment Date next preceding the date of issuance of such share of Series A
Preferred Stock, unless the date of issuance of such share is prior to the
record date for the first Quarterly Dividend Payment Date, in which case,
dividends on such share shall begin to accrue from the date of issuance of such
share, or unless the date of issuance is a Quarterly Dividend Payment Date or is
a date after the record date for the determination of holders of shares of
Series A Preferred Stock entitled to receive a quarterly dividend and before
such quarterly Dividend Payment Date, in either of which events such dividends
shall begin to accrue and be cumulative from such Quarterly Dividend Payment
Date. Accrued but unpaid dividends shall not bear interest. Dividends paid on
shares of Series A Preferred Stock in an amount less than the aggregate amount
of all such dividends at the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all shares of Series A
Preferred Stock at the time outstanding. The Board of Directors may fix a
record date for the determination of holders of shares of Series A Preferred
Stock entitled to receive payment of a dividend or distribution declared
thereon, which record date shall be no more than 60 days prior to the date fixed
for the payment thereof.
(D) Dividends payable on the Series A Preferred Stock for the initial
dividend period and for any period less than a full quarterly period, shall be
computed on the basis of a 360-day year of 30-day months.
SECTION 3. VOTING RIGHTS. The holders of shares of Series A Preferred
Stock shall have the following voting rights:
(A) Each share of Series A Preferred Stock shall entitle the holder
thereof to one vote on all matters submitted to a vote of the shareholders of
the Company.
(B) Except as otherwise provided herein or by law, the holders of shares
of Series A Preferred Stock and the holders of shares of Common Stock shall vote
together as one class on all matters submitted to a vote of shareholders of the
Company.
(C) If at the time of any annual meeting of shareholders for the election
of directors a "default in preference dividends" on the Series A Preferred Stock
shall exist, the holders of the Series A Preferred Stock shall have the right at
such meeting, voting together as a single class, to the exclusion of the holders
of Common Stock, to elect two (2) directors of the Company. Such right shall
continue until there are no dividends in arrears upon the Series A Preferred
Stock. Either or both of the two directors to be elected by the holders of the
Series A Preferred Stock may be to fill a vacancy or vacancies created by an
increase by the Board of Directors in the number of directors constituting the
Board of Directors. Each director elected by the holders of Preferred Stock (a
"Preferred Director") shall continue to serve as such director for the full term
for which he or she shall have been elected, notwithstanding that prior to the
end of such term a default in preference dividends shall cease to exist. Any
Preferred Director may be removed by, and shall not be removed except by, the
vote of the holders of record of the outstanding Series A Preferred Stock voting
together as a single class, at a meeting of the shareholders or of the holders
of Preferred Stock called for the purpose. So long as a default in preference
dividends on the Series A Preferred Stock shall exist, (i) any vacancy in the
office of a Preferred Director may be filled (except as provided in the
following clause (ii)) by an instrument in writing signed by the remaining
Preferred Director and filed with the Company and (ii) in the case of the
removal of any Preferred Director, the vacancy may be filled by the vote of the
holders of the outstanding Series A Preferred Stock voting together as a single
class, at the same meeting at which such removal shall be voted. Each director
appointed as
A-2
aforesaid by the remaining Preferred Director shall be deemed, for all purposes
hereof, to be a Preferred Director. For the purposes hereof, a "default in
preference dividends" on the Preferred Stock shall be deemed to have occurred
whenever the amount of accrued and unpaid dividends upon the Series A Preferred
Stock shall be equivalent to six (6) full quarterly dividends or more, and
having so occurred, such default shall be deemed to exist thereafter until, but
only until, all accrued dividends on all Series A Preferred Stock then
outstanding shall have been paid to the end of the last preceding quarterly
dividend period. The provisions of this paragraph (C) shall govern the election
of Directors by holders of Series A Preferred Stock during any default in
preference dividends notwithstanding any provisions of the Company's Certificate
of Incorporation to the contrary.
(D) Except as set forth herein, holders of shares of Series A Preferred
Stock shall have no special voting rights and their consent shall not be
required (except to the extent they are entitled to vote with holders of shares
of Common Stock as set forth herein) for taking any corporate action.
SECTION 4. CERTAIN RESTRICTIONS.
(A) Until all accrued and unpaid dividends and distributions, whether or
not declared, on outstanding shares of Series A Preferred Stock shall have been
paid in full, the Company shall not:
(i) declare or pay dividends on, make any other distributions on,
or redeem or purchase or otherwise acquire for consideration any shares of
junior stock;
(ii) declare or pay dividends on or make any other distributions on
any shares of parity stock, except dividends paid ratably on shares of
Series A Preferred Stock and shares of all such parity stock on which
dividends are payable or in arrears in proportion to the total amounts to
which the holders of such Series A Preferred Stock and all such shares are
then entitled;
(iii) redeem or purchase or otherwise acquire for consideration
shares of any junior stock, PROVIDED, HOWEVER, that the Company may at any
time redeem, purchase or otherwise acquire shares of any such junior stock
in exchange for shares of any other junior stock;
(iv) purchase or otherwise acquire for consideration any shares of
Series A Preferred Stock or any shares of parity stock, except in
accordance with a purchase offer made in writing or by publication (as
determined by the Board of Directors) to all holders of such shares upon
such terms as the Board of Directors, after consideration of the respective
annual dividend rates and other relative rights and preferences of the
respective series and classes, shall determine in good faith will result in
fair and equitable treatment among the respective series or classes.
(B) The Company shall not permit any subsidiary of the Company to
purchase or otherwise acquire for consideration any shares of stock of the
Company unless the Company could, under paragraph (A) of this Section 4,
purchase or otherwise acquire such shares at such time and in such manner.
SECTION 5. REACQUIRED SHARES. Any shares of Series A Preferred Stock
purchased or otherwise acquired by the Company in any manner whatsoever shall be
retired and canceled promptly after the acquisition thereof. All such shares
shall upon their cancellation become authorized but unissued Preferred Stock and
may be reissued as part of a new series of Preferred Stock subject to the
conditions and restrictions on issuance set forth in the Certificate of
Incorporation of the Company creating a series of Preferred Stock or any similar
shares or as otherwise required by law.
SECTION 6. LIQUIDATION, DISSOLUTION OR WINDING UP.
(A) Upon any voluntary or involuntary liquidation, dissolution or winding
up of the Company, no distributions shall be made (i) to the holders of shares
of junior stock unless the holders of Series A Preferred Stock shall have
received, subject to adjustment as hereinafter provided in paragraph (B), the
greater of either (a) $100.00 per share plus an amount equal to accrued and
unpaid dividends and distributions thereon, whether or not declared, to the
A-3
date of such payment, or (b) an amount per share equal to 100 times the
aggregate per share amount to be distributed to holders of shares of Common
Stock or (ii) to the holders of shares of parity stock, unless simultaneously
therewith distributions are made ratably on shares of Series A Preferred Stock
and all other shares of such parity stock in proportion to the total amounts to
which the holders of shares of Series A Preferred Stock are entitled under
clause (i)(a) of this Sentence and to which the holders of shares of such parity
stock are entitled, in each case, upon such liquidation, dissolution or winding
up.
(B) In the event the Company shall at any time after the Rights
Declaration Date (i) declare any dividend on outstanding shares of Common Stock
payable in shares of Common Stock, (ii) subdivide outstanding shares of Common
Stock, or (iii) combine outstanding shares of Common Stock into a smaller number
of shares, then in each such case, the aggregate amount to which holders of
Series A Preferred Stock were entitled immediately prior to such event pursuant
to clause (i)(b) of paragraph (A) of this Section 6 shall be adjusted by
multiplying such amount by a fraction, the numerator of which shall be the
number of shares of Commons Stock that are outstanding immediately after such
event, and the denominator of which shall be the number of shares of Common
Stock that were outstanding immediately prior to such event.
SECTION 7. CONSOLIDATION, MERGER, ETC. In case the Company shall enter
into any consolidation, merger, combination or other transaction in which the
shares of Common Stock are exchanged for or converted into other stock or
securities, cash and/or any other property, then in any such case, each share of
Series A Preferred Stock shall at the same time be similarly exchanged for or
converted into an amount per share (subject to the provision for adjustment
hereinafter set forth) equal to 100 times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as the case may
be, into which or for which each share of Common Stock is converted or
exchanged. In the event the Company shall at any time after the Rights
Declaration Date (i) declare any dividend on outstanding shares of Common Stock
payable in shares of Common Stock, (ii) subdivide outstanding shares of Common
Stock, or (iii) combine outstanding shares of Common Stock into a smaller number
of shares, then in each such case, the amount set forth in the immediately
preceding sentence with respect to the exchange or conversion of shares of
Series A Preferred Stock shall be adjusted by multiplying such amount by a
fraction, the numerator of which shall be the number of shares of Common Stock
that are outstanding immediately after such event, and the denominator of which
shall be the number of shares of Common Stock that were outstanding immediately
prior to such event.
SECTION 8. REDEMPTION. The shares of Series A Preferred Stock shall not
be redeemable.
SECTION 9. RANKING. The shares of Series A Preferred Stock shall rank
junior to all other series of the Preferred Stock and to any other class of
preferred stock that hereafter may be issued by the Company as to the payment of
dividends and the distribution of assets, unless the terms of any such series or
class shall provide otherwise.
SECTION 10. AMENDMENT. The provisions of this Certificate of Designation
shall not hereafter be amended, either directly or indirectly, or through merger
or consolidation with another corporation, in any manner that would alter or
change the powers, preferences or special rights of the Series A Preferred Stock
so as to affect them adversely without the affirmative vote of the holders of at
least a majority of the outstanding shares of Series A Preferred Stock, voting
separately as a class.
SECTION 11. FRACTIONAL SHARES. The Series A Preferred Stock may be issued
in fractions of a share, which fractions shall entitle the holder, in proportion
to such holder's fractional shares, to exercise voting rights, receive
dividends, participate in distributions, and to have the benefit of all other
rights of holders of Series A Preferred Stock.
SECTION 12. CERTAIN DEFINITIONS. As used herein with respect to the
Series A Preferred Stock, the following terms shall have the following meanings:
(A) The term "junior stock" (i) as used in Section 4, shall mean the
Common Stock and any other class or series of capital stock of the Company
hereafter authorized or issued over which the Series A Preferred Stock has
preference or priority as to the payment of dividends, and (ii) as used in
Section 6, shall mean the Common Stock and any other class or series of capital
stock of the Company over which the Series A Preferred Stock has preference or
priority in the distribution of assets on any liquidation, dissolution or
winding up of the Company.
A-4
(B) The term "parity stock" (i) as used in Section 4, shall mean any
class or series of stock of the Company hereafter authorized or issued ranking
PARI PASSU with the Series A Preferred Stock as to dividends, and (ii) as used
in Section 6, shall mean any class or series of stock of the Company ranking
PARI PASSU with the Series A Preferred Stock in the distribution of assets on
any liquidation, dissolution or winding up.
IN WITNESS WHEREOF, BancFirst Corporation has caused this Certificate to be
signed and attested on this 25th day of February, 1999.
BANCFIRST CORPORATION
------------------------------------
By: βββββ β. ββββββββ, President and Chief Executive Officer
ATTEST:
------------------------------------
By: βββ β. βββ, Secretary
A-5
EXHIBIT B
(Form of Right Certificate)
Certificate No. W- --------- Rights
NOT EXERCISABLE AFTER FEBRUARY 25, 2009 OR EARLIER IF NOTICE OF REDEMPTION OR
EXCHANGE IS GIVEN. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE
COMPANY, AT $0.01 PER RIGHT ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. IN
THE EVENT THAT THE RIGHTS REPRESENTED BY THIS CERTIFICATE ARE ISSUED TO A PERSON
WHO IS AN ACQUIRING PERSON OR AN ASSOCIATE OR AFFILIATE OF AN ACQUIRING PERSON
OR A PURPORTED TRANSFEREE OF THE RIGHTS PREVIOUSLY OWNED BY SUCH PERSONS, THIS
RIGHT CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY WILL BECOME NULL AND VOID.
THE BENEFICIAL OWNER OF THE RIGHTS REPRESENTED BY THIS RIGHT CERTIFICATE MAY BE
AN ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE (AS DEFINED IN THE RIGHTS
AGREEMENT) OF AN ACQUIRING PERSON OR A SUBSEQUENT HOLDER OF SUCH RIGHT
CERTIFICATE BENEFICIALLY OWNED BY SUCH PERSONS. ACCORDINGLY, UNDER CERTAIN
CIRCUMSTANCES AS PROVIDED IN THE RIGHTS AGREEMENT, THIS RIGHT CERTIFICATE AND
THE RIGHTS REPRESENTED HEREBY WILL BE NULL AND VOID.
Right Certificate
BANCFIRST CORPORATION
This certifies that --------------------or registered assigns, is the
registered owner of the number of Rights set forth above, each of which entitles
the owner thereof, subject to the terms, provisions and conditions of the Rights
Agreement dated February 25, 1999 ("Rights Agreement") between BancFirst
Corporation, an Oklahoma corporation ("Company"), and BancFirst ("Rights
Agent"), to purchase from the Company prior to 5:00 P.M. (Oklahoma City time)
on February 25, 2009, at the office of the Rights Agent, or its successors as
Rights Agent, in Oklahoma City, Oklahoma, one one-hundredth of a fully paid and
nonassessable share of Series A Preferred Stock, par value $.01 per share
("Preferred Stock"), of the Company at a purchase price of $110, as the same may
from time to time be adjusted in accordance with the Rights Agreement ("Purchase
Price"), upon presentation and surrender of this Right Certificate with the Form
of Election to Purchase and related Certificate duly executed.
As provided in the Rights Agreement, the Purchase Price and the number of
shares of Preferred Stock which may be purchased upon the exercise of the Rights
evidenced by this Right Certificate are subject to modification and adjustment
upon the happening of certain events and, upon the happening of certain events,
securities other than shares of Preferred Stock, or other property, may be
acquired upon the exercise of the Rights evidenced by this Right Certificate, as
provided by the Rights Agreement.
This Right Certificate is subject to all of the terms, provisions and
conditions of the Rights Agreement, which terms, provisions and conditions are
incorporated herein by reference and made a part hereof and to which Rights
Agreement reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities of the Rights Agent,
the Company and the holders of record of the Right Certificates, which
limitations of rights include the temporary suspension of the exercisability of
such Rights under the specific circumstances set forth in the Rights Agreement.
Copies of the Rights Agreement are on file at the principal executive office of
the Company.
This Right Certificate, with or without other Right Certificates, upon
surrender at the office of the Rights Agent, may be exchanged for another Right
Certificate or Right Certificate of like tenor and date evidencing Rights
entitling the holder of record to purchase a like aggregate number of shares of
Preferred Stock as the Rights evidenced by the Right Certificate or Right
Certificates surrendered shall have entitled such holder to purchase. If this
Right Certificate shall be exercised in part, the holder shall be entitled to
receive, upon surrender hereof, the Right Certificate
B-1
indicating the remaining Rights represented thereby or another Right Certificate
or Right Certificates for the number of Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights evidenced by
this Certificate may be redeemed by the Company at its option at a redemption
price of $0.01 per Right at any time prior to the earlier of the close of
business on (i) the tenth day following the Stock Acquisition Date (as such time
period may be extended pursuant to the Rights Agreement), and (ii) the Final
Expiration Date (as such terms are defined in the Rights Agreement), or under
certain other conditions as specified in the Rights Agreement.
No fractional shares of Preferred Stock shall be required to be issued upon
the exercise of any Right or Rights evidenced hereby, and in lieu thereof, a
cash payment will be made as provided in the Rights Agreement.
No holder of this Right Certificate shall be entitled to vote or receive
dividends or be deemed for any purpose the holder of Preferred Stock or of any
other securities of the Company which may at any time be issuable on the
exercise hereof, nor shall anything contained in the Rights Agreement or herein
be construed to confer upon the holder hereof, as such, any of the rights of a
shareowner of the Company or any right to vote for the election of directors; or
upon any matter submitted to shareowners at any meeting thereof, or to give or
withhold consent to any corporate action or to receive notice of meetings or
other actions affecting shareowners or to receive dividends or subscription
rights, or otherwise, until the Right or Rights evidenced by this Right
Certificate shall have been exercised as provided in the Rights Agreement.
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 February 25, 1999.
ATTEST: BANCFIRST CORPORATION
By:
---------------------------- -------------------------------------
βββ β. βββ, Secretary βββββ β. ββββββββ, President
and Chief Executive Officer
Countersigned:
ATTEST: BANCFIRST, RIGHTS AGENT
By:
----------------------------
Authorized signature
B-2
(Form of Reverse Side of Right Certificate)
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder desires
to transfer the Right Certificate.)
FOR VALUE RECEIVED ______________________ hereby sells, assigns and
transfers unto ___________________________Rights evidenced by this Right
Certificate, together with all right, title and interest therein, and does
hereby irrevocably constitute and appoint -----------------Attorney to transfer
the within Right Certificate on the books of the within-named Company, with full
power of substitution.
Dated: ------------------, ---------
Signature
Signature Guaranteed:
CERTIFICATE
The undersigned hereby certifies by checking the appropriate boxes that:
(1) the Rights evidenced by this Right Certificate are are not
being sold, assigned and transferred by or on behalf of a Person who is or was
an Acquiring Person or an Affiliate or Associate of any such Acquiring Person
(as such terms are defined pursuant to the Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned, it
did did not acquire the Rights evidenced by this Right Certificate from
any person who is or was an Acquiring Person or an Affiliate or Associate of an
Acquiring Person or any transferee of such Persons.
Dated: ------------------, ---------.
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Assignment must correspond to the name as
written upon the face of this Right Certificate in every particular, without
alteration or enlargement or any change whatsoever.
FORM OF ELECTION TO PURCHASE
(To be executed if registered holder desires to exercise the Right Certificate.)
To: BANCFIRST CORPORATION
The undersigned hereby irrevocably elects to exercise ------------------Rights
represented by this Right Certificate to purchase the shares of Preferred Stock
issuable upon the exercise of such Rights (or such other securities of the
Company or any other person which may be issuable upon the exercise of the
Rights) and requests that certificates for such share(s) be issued in the name:
B-3
Please insert social security or other identifying number
(Please print name and address)
If such number of Rights shall not be all the Rights evidenced by this Right
Certificate, a new Right Certificate for the remaining such rights shall be
registered in the name of and delivered to:
Please insert social security or other identifying number
(Please print name and address)
Dated: -----------------, ----------.
Signature
(Signature must conform in all respects to name of holder as specified on the
face of this Right Certificate)
Signature Guaranteed:
CERTIFICATE
The undersigned hereby certifies by checking the appropriate boxes that:
(1) the Rights evidenced by this Right Certificate are are not
being exercised by or on behalf of a Person who is or was an Acquiring Person or
an Affiliate or Associate of any such Acquiring Person (as such terms are
defined pursuant to the Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned, it
did not acquire the Rights evidenced by this Right Certificate from any
Person who is or was an Acquiring Person or an Affiliate or Associate of an
Acquiring Person or any transferee of such Persons.
Dated: ----------------, ----------
Signature
Signature Guaranteed:
B-4
EXHIBIT C
BANCFIRST CORPORATION SUMMARY OF RIGHTS AGREEMENT
On February 25, 1999, the Board of Directors of BancFirst Corporation (the
"Company") declared a dividend of one Preferred Stock purchase right (a "Right"
or "Rights") for each outstanding share of Common Stock, par value $1.00 per
share ("Common Stock"), of the Company. The dividend is payable as of the close
of business on March 25, 1999 (the "Record Date"), to shareowners of record as
of such Record Date. The description and terms of the Rights are set forth in a
Rights Agreement (the "Rights Agreement") between the Company and BancFirst, as
Rights Agent (the "Rights Agent").
TRADING AND DISTRIBUTION OF RIGHTS
Initially, (i) the Rights will not be exercisable, (ii) certificates will
not be sent to shareowners, (iii) the Rights will be evidenced by the Common
Stock certificates, (iv) the Rights will automatically trade with the Common
Stock, (v) the Rights will be transferred with and only with such Common Stock
certificates, (vi) new Common Stock certificates will contain a notation
incorporating the Rights Agreement by reference and (vii) the surrender for
transfer of any certificates for Common Stock outstanding will also constitute
the transfer of the Rights associated with the Common Stock represented by such
certificate.
The Rights become exercisable on the "Distribution Date," which is the
close of business on the earlier of:
(i) the tenth day after a public announcement (or, if earlier, the date a
majority of the Board of Directors of the Company becomes aware) that a person
or group of affiliated or associated persons acquired, or obtained the right to
acquire, beneficial ownership of Common Stock or other securities of the Company
representing 15% or more of the voting power of all securities of the Company
then outstanding generally entitled to vote for the election of directors
("Voting Power") (such person or group being called an "Acquiring Person" and
such date of first public announcement being called the "Stock Acquisition
Date"), or
(ii) the tenth day after the commencement of, or public announcement of an
intention to commence, a tender or exchange offer the consummation of which
would result in the ownership of 15% or more of the outstanding Voting Power
(the earlier of the dates in clause (i) or (ii) being called the "Distribution
Date").
When the Rights initially become exercisable, each Right will entitle the
holder of record to purchase from the Company one one-hundredth of a share of
Series A Preferred Stock, par value $.01 per share ("Preferred Stock"), of the
Company, at a price of $110 per one one-hundredth of a share (the "Purchase
Price"), although the price and the securities to be purchased are subject to
adjustment as described below.
As soon as practicable following the Distribution Date, separate
certificates evidencing the Rights ("Right Certificates") will be mailed to
holders of record of the Company's Common Stock as of the close of business on
the Distribution Date, and such separate certificates alone will evidence the
Rights from and after the Distribution Date.
EXEMPT PERSONS
Even if they have acquired, or obtained the right to acquire, beneficial
ownership of 15% or more of the Voting Power of the Company, each of the
following persons (an "Exempt Person") will not be deemed to be an Acquiring
Person: (i) the Company, any subsidiary of the Company, any employee benefit
plan or employee stock plan of the Company or any subsidiary of the Company;
(ii) any person who becomes an Acquiring Person solely by virtue of a reduction
in the number of outstanding shares of Common Stock, unless and until such
person shall become the beneficial owner of, or make a tender offer for any
additional shares of Common Stock; and (iii) any individual, corporation,
partnership or other person, entity or group which "beneficially owned" on
February 25, 1999, 15% or more of the outstanding Common Stock of the
Corporation.
C-1
EXERCISABILITY AND EXPIRATION
THE HOLDERS OF THE RIGHTS ARE NOT REQUIRED TO TAKE ANY ACTION UNTIL THE RIGHTS
BECOME EXERCISABLE. As stated above, the Rights are not exercisable until the
Distribution Date. The Rights will expire at the close of business on February
25, 2009, unless earlier redeemed or exchanged by the Company as described
below.
ADJUSTMENTS
In order to protect the value of the Rights to the holders, the Purchase
Price and the number of shares of Preferred Stock (or other securities or
property) issuable upon exercise of the Rights are subject to adjustment from
time to time (i) in the event of a stock dividend on, or a subdivision,
combination or reclassification of, the Company's Common Stock or Preferred
Stock, (ii) upon the grant to holders of the Preferred Stock of certain rights
or warrants to subscribe for Preferred Stock or convertible securities at less
than the current market price of the Preferred Stock or (iii) upon the
distribution to holders of the Preferred Stock of evidences of indebtedness or
assets (excluding dividends payable in Preferred Stock) or of subscription
rights or warrants (other than those referred to above).
These adjustments are called anti-dilution provisions and are intended to ensure
that a holder of Rights will not be adversely affected by the occurrence of such
events. With certain exceptions, the Company is not required to adjust the
Purchase Price until cumulative adjustments require a change of at least 1% in
the Purchase Price.
FLIP-IN EVENTS AND FLIP-OVER EVENTS
In the event (i) any person (other than an Exempt Person) becomes an
Acquiring Person (except pursuant to an offer for all outstanding shares of
Common Stock that the independent directors determine prior to the time such
offer is made to be fair to and otherwise in the best interest of the Company
and its shareowners) or (ii) any Exempt Person who is the beneficial owner of
15% or more of the outstanding Voting Power of the Company fails to continue to
qualify as an Exempt Person, then each holder of record of a Right, other than
the Acquiring Person, will thereafter have the right to receive, upon payment of
the Purchase Price, Common Stock (or, in certain circumstances, cash, property
or other securities of the Company) having a market value at the time of the
transaction equal to twice the Purchase Price. Rights are not exercisable
following such event, however, until such time as the Rights are no longer
redeemable by the Company as set forth below. Any Rights that are or were at
any time, on or after the Distribution Date, beneficially owned by an Acquiring
Person shall become null and void.
For example, at a Purchase Price of $110 per Right, each Right not owned by
an Acquiring Person (or by certain related parties) following an event set forth
in the preceding paragraph would entitle its holder to purchase $220 worth of
Common Stock (or other consideration, as noted above) for $110. Assuming that
the Common Stock had a per share value of $40 at such time, the holder of each
valid Right would be entitled to purchase 5.5 shares of Common Stock for $110.
Subject to certain limited exceptions, if (i) the Company is acquired after
the Stock Acquisition Date in a merger or other business combination (in which
any shares of the Company's Common Stock are changed into or exchanged for other
securities or assets) or (ii) more than 50% of the assets or earning power of
the Company and its subsidiaries (taken as a whole) are sold or transferred
after the Stock Acquisition Date in one or a series of related transactions, the
Rights Agreement provides that proper provision shall be made so that each
holder of record of a Right will have the right to receive, upon payment of the
Purchase Price, that number of shares of common stock of the acquiring company
having a market value at the time of such transaction equal to two times the
Purchase Price.
To the extent that insufficient shares of Common Stock are available for
the exercise in full of the Rights, holders of Rights will receive upon exercise
shares of Common Stock to the extent available and then other securities of the
Company, including units of shares of Preferred Stock with terms substantially
comparable to those of the Common Stock, property, debt securities, or cash, in
proportions determined by the Company, so that the aggregate value received is
equal to twice the Purchase Price. The Company, however, shall not be required
to issue any cash, property or debt securities upon exercise of the Rights to
the extent their aggregate value would exceed the amount of cash the
C-2
Company would otherwise be entitled to receive upon exercise in full of the then
exercisable Rights.
No fractional shares of Preferred Stock or Common Stock will be required to
be issued upon exercise of the Rights and, in lieu thereof, a payment in cash
may be made to the holder of such Rights equal to the same fraction of the
current market value of a share of Preferred Stock or, if applicable, Common
Stock.
REDEMPTION
At any time until the earlier of (i) ten days after the Stock Acquisition
Date (subject to extension by the Board of Directors) or (ii) the date the
Rights are exchanged pursuant to the Rights Agreement, the Company may redeem
the Rights in whole, but not in part, at a price of $0.01 per Right (the
"Redemption Price"). Immediately upon the action of the Board of Directors of
the Company authorizing redemption of the Rights, the right to exercise the
Rights will terminate, and the only right of the holders of Rights will be to
receive the Redemption Price without any interest thereon.
EXCHANGE OPTION
At any time after any person becomes an Acquiring Person, the Board of
Directors may, at its option, exchange all or part of the outstanding Rights
(other than Rights held by the Acquiring Person and certain related parties) for
shares of Common Stock at an exchange ratio of one share of Common Stock per
Right (subject to certain anti-dilution adjustments). The Board may not effect
such an exchange, however, at any time any person or group owns 50% or more of
the Voting Power of the Company. Immediately after the Board orders such an
exchange, the right to exercise the Rights shall terminate and the holders of
Rights shall thereafter only be entitled to receive shares of Common Stock at
the applicable exchange ratio.
OTHER PROVISIONS
Under presently existing federal income tax law, the issuance of the Rights
is not taxable to the Company or to shareowners and will not change the way in
which shareowners can presently trade the Company's shares of Common Stock. If
the Rights should become exercisable, shareowners, depending on then existing
circumstances, may recognize taxable income.
The Rights Agreement may be amended by the Board of Directors of the
Company. After the Distribution Date, however, the provisions of the Rights
Agreement may be amended by the Board only to cure any ambiguity, to make
changes which do not adversely affect the interests of holders of Rights
(excluding the interests of any Acquiring Person or an affiliate or associate of
an Acquiring Person), or to shorten or lengthen any time period under the Rights
Agreement; PROVIDED, however, that no amendment to adjust the time period
governing redemption shall be made at such time as the Rights are not
redeemable. In addition, no supplement or amendment may be made which changes
the Redemption Price, the final expiration date, the Purchase Price or the
number of one one-hundredths of a share of Preferred Stock for which a Right is
exercisable, unless at the time of such supplement or amendment there has been
no occurrence of a Stock Acquisition Date and such supplement or amendment does
not adversely affect the interests of the holders of Right Certificates (other
than an Acquiring Person or an associate or affiliate of an Acquiring Person).
Until a Right is exercised, the holder, as such, will have no rights as a
shareowner of the Company, including, without limitation, the right to vote or
to receive dividends.
A copy of the Rights Agreement will be filed with the Securities and
Exchange Commission as an Exhibit to a Registration Statement on Form 8-A/A. A
copy of the Rights Agreement is available free of charge from either the Rights
Agent or the Company. This summary description of the Rights does not purport
to be complete and is qualified in its entirety by reference to the Rights
Agreement, which is incorporated in this summary description herein by
reference.
C-3