EXHIBIT 4.1
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RIGHTS AGREEMENT
by and between
GYRODYNE COMPANY OF AMERICA, INC.
and
REGISTRAR AND TRANSFER COMPANY
as Rights Agent
Dated as of August 10, 2004
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TABLE OF CONTENTS
Page
Section 1 Certain Definitions............................................1
Section 2 Appointment of Rights Agent....................................5
Section 3 Issuance of Rights Certificates................................5
Section 4 Form of Rights Certificates....................................7
Section 5 Countersignature and Registration..............................8
Section 6 Transfer, Split Up, Combination and Exchange of Rights
Certificates; Mutilated, Destroyed, Lost or Stolen
Rights Certificates...........................................8
Section 7 Exercise of Rights; Exercise Price; Expiration Date of
Rights........................................................9
Section 8 Cancellation and Destruction of Rights Certificates...........11
Section 9 Reservation and Availability of Shares of Common Stock........11
Section 10 Record Date...................................................12
Section 11 Adjustment of Exercise Price or Number of Shares..............13
Section 12 Certification of Adjusted Exercise Price or Number of
Shares.......................................................16
Section 13 Consolidation, Merger or Sale or Transfer of Assets or
Earning Power................................................16
Section 14 Fractional Rights and Fractional Shares.......................19
Section 15 Rights of Action..............................................20
Section 16 Agreement of Right Holders....................................20
Section 17 Rights Certificate Holder Not Deemed a Stockholder............21
Section 18 Concerning the Rights Agent...................................21
Section 19 Merger or Consolidation of, or Change in Name of, the
Rights Agent.................................................22
Section 20 Duties of Rights Agent........................................22
Section 21 Change of Rights Agent........................................24
Section 22 Issuance of New Rights Certificates...........................24
Section 23 Redemption....................................................25
Section 24 Notice of Proposed Actions....................................25
Section 25 Notices.......................................................26
Section 26 Supplements and Amendments....................................27
Section 27 Exchange......................................................27
Section 28 Successors....................................................28
Section 29 Benefits of this Rights Agreement.............................28
Section 30 New York Contract.............................................28
Section 31 Counterparts..................................................28
Section 32 Descriptive Headings..........................................28
Section 33 Severability..................................................28
Section 34 Determinations and Actions by the Board of Directors, etc.....29
Exhibit A Summary of Rights
Exhibit B Form of Rights Certificate
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RIGHTS AGREEMENT
Agreement, dated as of August 10, 2004, by and between Gyrodyne
Company of America, Inc., a New York corporation (the "Corporation"), and
Registrar and Transfer Company (the "Rights Agent") (the "Rights Agreement").
W I T N E S S E T H:
WHEREAS, on August 10, 2004, the Board of Directors of the
Corporation authorized the issuance of, and declared a dividend payable in, one
right (a "Right") for each share of Common Stock, $1.00 par value per share, of
the Corporation outstanding as of the close of business on August 27, 2004 (the
"Record Date"), each such Right representing the right to purchase one share of
common stock of the Corporation (the "Common Stock") upon the terms and subject
to the conditions hereinafter set forth; and
WHEREAS, the Board of Directors of the Corporation further
authorized the issuance of one Right (subject to adjustment) with respect to
each share of Common Stock which may be issued between the Record Date and the
earlier to occur of the Distribution Date or the Expiration Date (as such terms
are hereinafter defined);
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
Section 1. Certain Definitions. For purposes of this Rights
Agreement, the following terms shall have the meanings indicated:
(a) "Acquiring Person" shall mean any Person (as such term is
hereinafter defined) who or which, together with all Affiliates (as such term is
hereinafter defined) and Associates (as such term is hereinafter defined) of
such Person, is the Beneficial Owner (as such term is hereinafter defined) of
20% or more of the Voting Stock (as such term is hereinafter defined) of the
Corporation then outstanding; provided, that, an Acquiring Person shall not
include (i) an Exempt Person (as such term is hereinafter defined) or (ii) any
Person, together with all Affiliates and Associates of such Person, who or which
would be an Acquiring Person solely by reason of (A) being the Beneficial Owner
of shares of Voting Stock of the Corporation, the Beneficial Ownership of which
was acquired by such Person (or his or its predecessor through merger,
consolidation, amalgamation or other similar legal succession) pursuant to any
action or transaction or series of related actions or transactions approved by
the Board of Directors before such Person otherwise became an Acquiring Person
or (B) a reduction in the number of outstanding shares of Voting Stock of the
Corporation pursuant to a transaction or a series of related transactions
approved by the Board of Directors of the Corporation; provided, further, that
in the event such Person described in this clause (ii) does not become an
Acquiring Person by reason of subclause (A) or (B) of this clause (ii), such
Person nonetheless shall become an Acquiring Person in the event such Person
thereafter acquires Beneficial Ownership of an additional 1% or more of the
Voting Stock of the Corporation then outstanding, unless the acquisition of such
additional Voting Stock would not result in such Person becoming an
Acquiring Person by reason of subclause (A) or (B) of this clause (ii).
Notwithstanding the foregoing, if the Board of Directors of the Corporation
determines in good faith that a Person who would otherwise be an "Acquiring
Person" as defined pursuant to the foregoing provisions of this paragraph (a)
has become such inadvertently, and such Person divests as promptly as
practicable (as determined in good faith by the Board of Directors) a sufficient
number of shares of Common Stock so that such Person would no longer be an
"Acquiring Person" as defined pursuant to the foregoing provisions of this
paragraph (a), then such Person shall not be deemed an "Acquiring Person" for
any purposes of this Rights Agreement.
(b) "Affiliate" shall have the meaning ascribed to such term in Rule
12b-2 of the General Rules and Regulations under the Securities Exchange Act of
1934, as amended ("Exchange Act"), as in effect on the date of this Rights
Agreement.
(c) "Associate" of a Person (as such term is hereinafter defined)
shall mean (i) with respect to a corporation, any officer or director thereof or
of any Subsidiary (as such term is hereinafter defined) thereof, or any
Beneficial Owner (as such term is hereinafter defined) of 10% or more of any
class of equity security thereof, (ii) with respect to an association, joint
venture or other unincorporated organization, any officer or director thereof or
of a Subsidiary thereof or any Beneficial Owner of 10% or more ownership
interest therein, (iii) with respect to a partnership, any general partner
thereof or any limited partner thereof who is, directly or indirectly, the
Beneficial Owner of a 10% or greater ownership interest therein, (iv) with
respect to a limited liability company, any officer, director or manager thereof
or of a Subsidiary thereof or any member thereof who is, directly or indirectly,
the Beneficial Owner of a 10% or greater ownership interest therein, (v) with
respect to a business trust, any officer or trustee thereof or of any Subsidiary
thereof, (vi) with respect to any other trust or an estate, any trustee,
executor or similar fiduciary or any Person who has a 10% or greater interest as
a beneficiary in the income from or principal of such trust or estate, (vii)
with respect to a natural person, any relative or spouse of such person, or any
relative of such spouse, who has the same home as such person, and (viii) any
Affiliate of such Person.
(d) A person shall be deemed the "Beneficial Owner" of, or to
"Beneficially Own," any securities (and correlative terms shall have correlative
meanings):
(i) which such Person or any of such Person's Affiliates or
Associates beneficially owns, directly or indirectly, for purposes of
Section 13(d) of the Exchange Act and Regulations 13D and 13G thereunder,
in each case as in effect on the date hereof; or
(ii) which such Person or any of such Person's Affiliates or
Associates has (A) the right to acquire (whether such right is exercisable
immediately or only after the passage of time or the fulfillment of a
condition or both) pursuant to any agreement, arrangement or understanding
(whether or not in writing), or upon the exercise of conversion rights,
exchange rights, other rights (other than these Rights), warrants or
options, or otherwise; provided, however, that a Person shall not be
deemed the "Beneficial Owner" of, or to "Beneficially Own," securities
tendered pursuant to a tender or exchange offer made by or on behalf of
such Person or any of such Person's Affiliates or Associates until such
tendered securities are accepted for purchase or exchange or
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(B) the right to vote, alone or in concert with others, pursuant to any
agreement, arrangement or understanding (whether or not in writing);
provided, however, that a Person shall not be deemed the "Beneficial
Owner" of, or to "Beneficially Own," any securities if the agreement,
arrangement or understanding to vote such security (1) arises solely from
a revocable proxy or consent given in response to a proxy or consent
solicitation made pursuant to, and in accordance with, the applicable
rules and regulations under the Exchange Act and (2) is not at that time
reportable by such Person on a Schedule 13D report under the Exchange Act
(or any comparable or successor report), other than by reference to a
proxy or consent solicitation being conducted by such Person; or
(iii) which are Beneficially Owned, directly or indirectly, by any
other Person with which such Person or any of such Person's Affiliates or
Associates has any agreement, arrangement or understanding (whether or not
in writing) for the purpose of acquiring, holding, voting (except as
described in the proviso in clause (B) of subparagraph (ii) of this
paragraph (d)) or disposing of any securities of the Corporation;
provided, however, that for purposes of determining Beneficial Ownership
of securities under this Rights Agreement, officers and directors of the
Corporation solely by reason of their status as such shall not constitute
a group (notwithstanding that they may be Associates of one another or may
be deemed to constitute a group for purposes of Section 13(d) of the
Exchange Act) and shall not be deemed to own shares owned by another
officer or director of the Corporation.
Notwithstanding anything in this paragraph (d) to the contrary, a
Person engaged in the business of underwriting securities shall not be deemed
the "Beneficial Owner" of, or to "Beneficially Own," any securities acquired in
good faith in a firm commitment underwriting, until the expiration of forty days
after the date of such acquisition.
(e) "Book-Entry" shall mean an uncertificated book-entry for the
Corporation's Common Stock.
(f) "Business Day" shall mean any day other than a Saturday, Sunday,
or day on which banking institutions in the State of New York are authorized or
obligated by law or executive order to close.
(g) "Close of Business" on any given date shall mean 5:00 p.m., New
York City time, on such date; provided, however, that if such date is not a
Business Day it shall mean 5:00 p.m., New York City time, on the next succeeding
Business Day.
(h) "Common Stock," when used with reference to the Corporation,
shall mean the common stock, presently $1.00 par value, of the Corporation.
"Common Stock," when used with reference to any Person other than the
Corporation which shall be organized in corporate form, shall mean the capital
stock or other equity security with the greatest voting power of such Person or,
if such other Person is a subsidiary of another Person, the Person or Persons
which ultimately control such first mentioned Person. "Common Stock," when used
with reference to any Person other than the Corporation which shall not be
organized in corporate form, shall mean units of beneficial interest which shall
represent the right to
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participate in profits, losses, deductions and credits of such Person and which
shall be entitled to exercise the greatest voting power of such Person.
(i) "Distribution Date" shall have the meaning set forth in Section
3(b) hereof.
(j) "Exchange Act" shall have the meaning set forth in Section 1(b)
hereof.
(k) "Exempt Person" shall mean (i) the Corporation, (ii) any
Subsidiary of the Corporation or (iii) any employee benefit plan or employee
stock plan of the Corporation or any Subsidiary of the Corporation, or any trust
or other entity organized, appointed, established or holding Common Stock for or
pursuant to the terms of any such plan.
(l) "Exercise Price" shall have the meaning set forth in Sections 4
and 7(b) hereof.
(m) "Expiration Date" shall have the meaning set forth in Section
7(a) hereof.
(n) "Fair Market Value" of any property shall mean the fair market
value of such property as determined in accordance with Section 11(b) hereof.
(o) "NASDAQ-SCM" shall mean The Nasdaq SmallCap Market or any
successor thereto or other comparable quotation system.
(p) "Person" shall mean any individual, firm, corporation or other
entity.
(q) "Principal Party" shall have the meaning set forth in Section
13(b) hereof.
(r) "Record Date" shall have the meaning set forth in the first
Recital.
(s) "Redemption Price" shall have the meaning set forth in Section
23(a) hereof.
(t) "Rights Certificate" shall have the meaning set forth in Section
3(d) hereof.
(u) "Stock Acquisition Date" shall mean the first date on which
there shall be a public announcement by the Corporation or an Acquiring Person
that an Acquiring Person has become such (which, for purposes of this
definition, shall include, without limitation, a report filed pursuant to
Section 13(d) of the Exchange Act) or such earlier date as a majority of the
Board of Directors shall become aware of the existence of an Acquiring Person.
(v) "Subsidiary" of a Person shall mean any corporation or other
entity of which securities or other ownership interests having voting power
sufficient to elect a majority of the Board of Directors or other persons
performing similar functions are Beneficially Owned, directly or indirectly, by
such Person or by any corporation or other entity that is otherwise controlled
by such Person.
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(w) "Summary of Rights" shall have the meaning set forth in Section
3(a) hereof.
(x) "Trading Day" shall have the meaning set forth in Section 11(b)
hereof.
(y) "Transfer Tax" shall mean any tax or charge, including any
documentary stamp tax, imposed or collected by any governmental or regulatory
authority in respect of any transfer of any security, instrument or right,
including Rights, and shares of Common Stock.
(z) "Voting Stock" shall mean (i) the Common Stock of the
Corporation and (ii) any other shares of capital stock of the Corporation
entitled to vote generally in the election of directors or entitled to vote
together with the Common Stock in respect of any merger, consolidation, sale of
all or substantially all of the Corporation's assets, liquidation, dissolution
or winding up. For purposes of this Rights Agreement, Voting Stock shall include
securities of the type referred to in clauses (i) and (ii) above that trade on a
"when issued" basis on a national securities exchange or on the NASDAQ-SCM. For
purposes of this Rights Agreement, a stated percentage of the Voting Stock shall
mean a number of shares of the Voting Stock as shall equal in voting power that
stated percentage of the total voting power of the then outstanding shares of
Voting Stock in the election of a majority of the Board of Directors or in
respect of any merger, consolidation, sale of all or substantially all of the
Corporation's assets, liquidation, dissolution or winding up.
Any determination required to be made by the Board of Directors of
the Corporation for purposes of applying the definitions contained in this
Section 1 shall be made by the Board of Directors in its good faith judgment,
and such determination shall be binding on the Rights Agent and the holders of
the Rights.
Section 2. Appointment of Rights Agent. The Corporation hereby
appoints the Rights Agent to act as agent for the Corporation and the holders of
the Rights in accordance with the terms and conditions hereof, and the Rights
Agent hereby accepts such appointment. The Corporation may from time to time
appoint such Co-Rights Agents as it may deem necessary or desirable.
Section 3. Issuance of Rights Certificates. (a) On the Record Date
(or as soon as practicable thereafter), the Corporation or the Rights Agent
shall send a copy of a Summary of Rights, in substantially the form attached
hereto as Exhibit A (the "Summary of Rights"), by first class mail, postage
prepaid, to each record holder of the Common Stock as of the Close of Business
on the Record Date, at the address of such holder shown on the records of the
Corporation.
(b) Until the Close of Business on the day which is the earlier of
(i) the tenth day after the Stock Acquisition Date or such earlier or later date
(not beyond the thirtieth day after the Stock Acquisition Date) as the Board of
Directors may from time to time fix by resolution adopted prior to the
Distribution Date that otherwise would have occurred or (ii) the tenth business
day (or such later date as may be determined by action of the Board of Directors
prior to such time as any Person becomes an Acquiring Person) after the date of
the commencement by any Person (other than an Exempt Person) of, or the first
public
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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 20% or more of the then outstanding shares of Voting Stock
of the Corporation (irrespective of whether any shares are actually purchased
pursuant to any such offer) (the earlier of such dates being herein referred to
as the "Distribution Date"), (x) the Rights shall be evidenced by the
Book-Entries, or certificates for, Common Stock registered in the name of the
holders of Common Stock (together with, in the case of Book-Entries
representing, or the certificates for, Common Stock outstanding as of the Record
Date, the Summary of Rights) and not by separate Book-Entries or Rights
Certificates and the record holders of the Common Stock represented by such
Book-Entries or certificates shall be the record holders of the Rights
represented thereby and (y) each Right shall be transferable only simultaneously
and together with the transfer of a share of Common Stock (subject to adjustment
as hereinafter provided). Until the Distribution Date (or, if earlier, the
Expiration Date), transfer on the Corporation's Direct Registration System of
any Common Stock represented by a Book-Entry or the surrender for transfer of
any certificate for Common Stock shall constitute the surrender for transfer of
the Right or Rights associated with the Common Stock evidenced thereby, whether
or not accompanied by a copy of the Summary of Rights.
(c) Rights shall be issued in respect of all shares of Common Stock
that become outstanding after the Record Date but prior to the earlier of the
Distribution Date or the Expiration Date and, in certain circumstances provided
in Section 22 hereof, may be issued in respect of shares of Common Stock that
become outstanding after the Distribution Date. Certificates for Common Stock
(including, without limitation, certificates issued upon original issuance,
dispensation from the Corporation's treasury or transfer or exchange of Common
Stock) after the Record Date but prior to the earliest of the Distribution Date
or the Expiration Date (or, in certain circumstances as provided in Section 22
hereof, after the Distribution Date) shall have impressed, printed, written or
stamped thereon or otherwise affixed thereto the following legend:
This certificate also evidences and entitles the holder
hereof to the same number of Rights (subject to
adjustment) as the number of shares of Common Stock
represented by this certificate, such Rights being on
the terms provided under the Rights Agreement between
Gyrodyne Company of America, Inc. (the "Corporation")
and Registrar and Transfer Company (the "Rights Agent"),
dated as of August 10, 2004, as it may be amended from
time to time (the "Rights Agreement"), the terms of
which are incorporated herein by reference and a copy of
which is on file at the principal executive offices of
the Corporation. Under certain circumstances, as set
forth in the Rights Agreement, such Rights shall be
evidenced by separate certificates and shall no longer
be evidenced by this certificate. The Corporation shall
mail to the registered holder 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 SECTION 7(e) OF THE
RIGHTS AGREEMENT, RIGHTS
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ISSUED TO OR BENEFICIALLY OWNED BY ACQUIRING PERSONS OR
THEIR AFFILIATES OR ASSOCIATES (AS SUCH TERMS ARE
DEFINED IN THE RIGHTS AGREEMENT) OR ANY SUBSEQUENT
HOLDER OF SUCH RIGHTS SHALL BE NULL AND VOID AND MAY NOT
BE TRANSFERRED TO ANY PERSON.
(d) As soon as practicable after the Distribution Date, the
Corporation will prepare and execute, the Rights Agent will countersign, and the
Corporation will send or cause to be sent (and the Rights Agent will, if
requested, send), by first class mail, postage prepaid, to each record holder of
the Common Stock as of the Close of Business on the Distribution Date, as shown
by the records of the Corporation, at the address of such holder shown on such
records, a certificate in the form provided by Section 4 hereof (a "Rights
Certificate"), evidencing one Right (subject to adjustment as provided herein)
for each share of Common Stock so held. As of and after the Distribution Date,
the Rights shall be evidenced solely by such Rights Certificates and may be
transferred by the transfer of the Rights Certificate as permitted hereby,
separately and apart from any transfer of one or more shares of Common Stock.
(e) 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 Corporation (i) shall, with respect to shares of Common Stock so
issued or sold (x) pursuant to the exercise of stock options or under any
employee plan or arrangement or (y) upon the exercise, conversion or exchange of
other securities issued by the Corporation prior to the Distribution Date and
(ii) may, in any other case, if deemed necessary or appropriate by the Board of
Directors of the Corporation, issue Rights Certificates representing the
appropriate number of Rights in connection with such issuance or sale; provided
that no such Rights Certificate shall be issued if, and to the extent that, (i)
the Corporation shall be advised by counsel that such issuance would create a
significant risk of material adverse tax consequences to the Corporation or the
Person to whom such Rights Certificate would be issued or (ii) appropriate
adjustment shall otherwise have been made in lieu of the issuance thereof.
Section 4. Form of Rights Certificates. (a) The Rights Certificates
(and the forms of election to purchase shares, certificate and 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 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 Common Stock or the Rights may from time to time be listed
or as the Corporation may deem appropriate to conform to usage or otherwise and
as are not inconsistent with the provisions of this Rights Agreement. Subject to
the provisions of Section 22 hereof, Rights Certificates evidencing Rights
whenever issued, (i) shall be dated as of the date of issuance of the Rights
they represent and (ii) subject to adjustment from time to time as provided
herein, on their face shall entitle the holders thereof to purchase such number
of shares of Common Stock as shall be set forth therein at the price payable
upon exercise of a Right provided by Section 7(b) hereof as the same may from
time to time be adjusted as provided herein (the "Exercise Price").
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(b) Notwithstanding any other provision of this Rights Agreement,
any Rights Certificate that represents Rights Beneficially Owned by an Acquiring
Person or any Affiliate or Associate thereof or any other Person whose Rights
shall become void pursuant to Section 7(e) shall have impressed on, printed on,
written on or otherwise affixed to it (if the Corporation or the Rights Agent
has knowledge that such Person is an Acquiring Person or an Associate or
Affiliate or a nominee of any of the foregoing) the following legend:
The Beneficial Owner of the Rights represented by this
Rights Certificate is an Acquiring Person or an
Affiliate or an Associate of an Acquiring Person.
Accordingly, this Rights Certificate and the Rights
represented hereby shall become void in the
circumstances specified in Section 7(e) of the Rights
Agreement.
Section 5. Countersignature and Registration. (a) Each Rights
Certificate shall be executed on behalf of the Corporation by its Chairman of
the Board, any President or any Senior or Executive Vice President, either
manually or by facsimile signature, and have affixed thereto the Corporation's
seal or a facsimile thereof which shall be attested to by the Secretary or an
Assistant Secretary of the Corporation, either manually or by facsimile
signature. Each Rights Certificate shall be countersigned by the Rights Agent
either manually or by facsimile signature and shall not be valid for any purpose
unless so countersigned. In case any officer of the Corporation who shall have
signed any Rights Certificate shall cease to be such officer of the Corporation
before countersignature by the Rights Agent and issuance and delivery of the
certificate by the Corporation, such Rights Certificate, nevertheless, may be
countersigned by the Rights Agent and issued and delivered with the same force
and effect as though the person who signed such Rights Certificates had not
ceased to be such officer of the Corporation. Any Rights Certificate may be
signed on behalf of the Corporation by any person who, on the date of the
execution of such Rights Certificate, shall be a proper officer of the
Corporation to sign such Rights Certificate, although at the date of the
execution of this Rights Agreement any such person was not such an officer.
(b) Following the Distribution Date, the Rights Agent will keep or
cause to be kept, at its principal office or one or more offices designated as
the appropriate place for the surrender of Rights Certificates upon exercise or
transfer, and in such other locations as may be required by law, books for
registration and transfer of the Rights Certificates issued hereunder. Such
books shall show the names and addresses of the respective holders of the Rights
Certificates, the number of Rights evidenced on its face by each of the Rights
Certificates and the date of each of the Rights Certificates and any Rights
Certificates that have a legend printed thereon pursuant to Section 4(b).
Section 6. Transfer, Split Up, Combination and Exchange of Rights
Certificates; Mutilated, Destroyed, Lost or Stolen Rights Certificates. (a)
Subject to the provisions of Sections 7(e), 7(f) and 14(b) 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 Rights Certificate, may be (i)
transferred or (ii) split up, combined or exchanged for one or more other Rights
Certificates, entitling the registered holder to purchase a like number of
shares of Common Stock as the Rights Certificate or Rights Certificates
surrendered then entitled such holder to purchase. Any registered holder
desiring to transfer any Rights Certificate shall
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surrender the Rights Certificate at the office of the Rights Agent designated
for the surrender of Rights Certificates with the form of certificate and
assignment on the reverse side thereof duly endorsed (or, enclosed with such
Rights Certificate, a written instrument of transfer in a form satisfactory to
the Corporation and the Rights Agent), duly executed by the registered holder
thereof or his attorney duly authorized in writing, and with such signature duly
guaranteed. Any registered holder desiring to split up, combine or exchange any
Rights Certificate shall make such request in writing delivered to the Rights
Agent, and shall surrender the Rights Certificate to be split up, combined or
exchanged at the office of the Rights Agent. Thereupon, the Rights Agent shall
countersign and deliver to the person entitled thereto a Rights Certificate or
Rights Certificates, as the case may be, as so requested. The Corporation may
require payment of a sum sufficient to cover any Transfer Tax that may be
imposed in connection with any transfer, split up, combination or exchange of
any Rights Certificates.
(b) Subject to the provisions of Sections 7(e), 7(f) and 14(b)
hereof, upon receipt by the Corporation and the Rights Agent of evidence
reasonably satisfactory to them of the loss, theft, destruction or mutilation of
a Rights Certificate, and, in case of loss, theft or destruction, of indemnity
or security reasonably satisfactory to them and, if requested by the
Corporation, reimbursement to the Corporation and the Rights Agent of all
reasonable expenses incidental thereto, or upon surrender to the Rights Agent
and cancellation of the Rights Certificate if mutilated, the Corporation shall
issue and deliver a new Rights Certificate of like tenor to the Rights Agent for
delivery to the registered owner in lieu of the Rights Certificate so lost,
stolen, destroyed or mutilated.
Section 7. Exercise of Rights; Exercise Price; Expiration Date of
Rights. (a) The Rights shall not be exercisable until, and shall become
exercisable on, the Distribution Date (unless otherwise provided herein,
including, without limitation, the restrictions on exercisability set forth in
Section 7(e) and 23(a) hereof). Except as otherwise provided herein, the Rights
may be exercised, in whole or in part, at any time commencing with the
Distribution Date upon surrender of the Rights Certificate, with the form of
election to purchase and certificate on the reverse side thereof duly executed
(with signatures duly guaranteed), to the Rights Agent at the principal office
of the Rights Agent in Cranford, New Jersey, together with payment of the
Exercise Price for each Right exercised, subject to adjustment as hereinafter
provided, at or prior to the Close of Business on the earlier of (i) August 11,
2014 (or if the Distribution Date shall have occurred before August 11, 2014 ,
at the Close of Business on the 90th day following the Distribution Date) or
(ii) the date on which the Rights are redeemed as provided in Section 23 hereof
(such earlier date being herein referred to as the "Expiration Date").
(b) The Exercise Price shall initially be $75.00 for each one share
of Common Stock issued pursuant to the exercise of a Right. The Exercise Price
and the number of shares of Common Stock or other securities to be acquired upon
exercise of a Right shall be subject to adjustment from time to time as provided
in Sections 11 and 13 hereof. The Exercise Price shall be payable in lawful
money of the United States of America, in accordance with paragraph (c) below.
(c) Except as otherwise provided herein, upon receipt of a Rights
Certificate representing exercisable Rights with the form of election to
purchase duly executed,
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accompanied by payment by certified check, cashier's check, bank draft or money
order payable to the Corporation or the Rights Agent of the Exercise Price for
the shares to be purchased and an amount equal to any applicable Transfer Tax
required to be paid by the holder of the Rights Certificate in accordance with
Section 9(e) hereof, the Rights Agent shall thereupon promptly (i) requisition
from any registrar or transfer agent (as may be appropriate) of the Common Stock
of the Corporation one or more certificates representing the number of shares of
Common Stock to be so purchased, and the Corporation hereby authorizes and
directs such registrar or transfer agent (as may be appropriate) to comply with
all such requests, (ii) as provided in Section 14(b), at the election of the
Corporation, cause depositary receipts to be issued in lieu of fractional shares
of Common Stock, (iii) if the election provided for in the immediately preceding
clause (ii) has not been made, requisition from the Corporation the amount of
cash to be paid in lieu of the issuance of fractional shares in accordance with
Section 14(b) hereof, (iv) after receipt of such Common Stock certificates and,
if applicable, depositary receipts, cause the same to be delivered to or upon
the order of the registered holder of such Rights Certificate, registered in
such name or names as may be designated by such holder and (v) when appropriate,
after receipt, promptly deliver such cash to or upon the order of the registered
holder of such Rights Certificate; provided, however, that in the case of a
purchase of securities, other than Common Stock, pursuant to Section 13 hereof,
the Rights Agent shall promptly take the appropriate actions corresponding in
such case to that referred to in the foregoing clauses (i) through (v) of this
Section 7(c). Notwithstanding the foregoing provisions of this Section 7(c), the
Corporation may suspend the issuance of shares of Common Stock upon exercise of
a Right for a reasonable period, not in excess of 120 days, during which the
Corporation seeks to register under the Securities Act of 1933, as amended (the
"Act"), and any applicable securities law of any other jurisdiction, the shares
of Common Stock to be issued pursuant to the Rights; provided, however, that
nothing contained in this Section 7(c) shall relieve the Corporation of its
obligations under Section 9(c) hereof.
(d) In case the registered holder of any Rights Certificate shall
exercise less than all the Rights evidenced thereby, a new Rights Certificate
evidencing Rights equivalent to the Rights remaining unexercised shall be issued
by the Rights Agent to the registered holder of such Rights Certificate or his
assignee, subject to the provisions of Section 14(b) hereof.
(e) Notwithstanding any provision of this Rights Agreement to the
contrary, from and after the time (the "Invalidation Time") when any Person
first becomes an Acquiring Person, any Rights that are Beneficially Owned by (x)
such Acquiring Person (or any Associate or Affiliate of such Acquiring Person),
(y) a transferee of such Acquiring Person (or any such Associate or Affiliate)
who becomes a transferee after the Invalidation Time or (z) a transferee of such
Acquiring Person (or any such Associate or Affiliate) who becomes a transferee
prior to or concurrently with the Invalidation Time 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 Section 7(e), and
subsequent transferees of the Persons referred to in either clause (y) or (z)
above, shall be void without any further action and any holder of such Rights
shall thereafter have no rights whatsoever with respect to such Rights under any
provision of this Rights Agreement. The Corporation shall use all reasonable
efforts to ensure that the provisions of this Section 7(e) are complied with,
but
-10-
shall have no liability to any holder of a Rights Certificate or any other
Person as a result of the Corporation's failure to make any determination with
respect to an Acquiring Person or its Affiliates, Associates or transferees
hereunder. No Rights Certificate shall be issued pursuant to Section 3 hereof
that represents Rights Beneficially Owned by an Acquiring Person or any other
Person whose Rights would be void pursuant to the provisions of this Section
7(e) or any Associate, Affiliate or nominee thereof; no Rights Certificate shall
be issued at any time upon the transfer of any Rights to an Acquiring Person or
any other Person whose Rights would be void pursuant to the provisions of this
Section 7(e) or any Associate, Affiliate or nominee thereof; and any Rights
Certificate delivered to the Rights Agent for transfer to an Acquiring Person
whose Rights would be void pursuant to the provisions of this Section 7(e) shall
be canceled.
(f) Notwithstanding anything in this Rights Agreement to the
contrary, neither the Rights Agent nor the Corporation shall be obligated to
undertake any action with respect to a registered holder upon the occurrence of
any purported exercise as set forth in this Section 7 unless such registered
holder shall have (i) completed and signed the certificate following the form of
election to purchase set forth on the reverse side of the Rights 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 or a Person referred to in clause (y) or (z) of Section 7(e)
and such other information as the Corporation shall reasonably request.
Section 8. Cancellation and Destruction of Rights Certificates. All
Rights Certificates surrendered for the purpose of exercise, transfer, split up,
combination or exchange shall, if surrendered to the Corporation or to any of
its agents, be delivered to the Rights Agent for cancellation or in canceled
form, or, if surrendered to the Rights Agent, shall be canceled by it, and no
Rights Certificates shall be issued in lieu thereof except as expressly
permitted by any of the provisions of this Rights Agreement. The Corporation
shall deliver to the Rights Agent for cancellation and retirement, and the
Rights Agent shall cancel and retire, any Rights Certificate purchased or
acquired by the Corporation otherwise than upon the exercise thereof. The Rights
Agent shall deliver all canceled Rights Certificates to the Corporation, or
shall, at the written request of the Corporation, destroy such canceled Rights
Certificates, and in such case shall deliver a certificate of destruction
thereof to the Corporation.
Section 9. Reservation and Availability of Shares of Common Stock.
(a) The Corporation covenants and agrees that it will cause to be reserved and
kept available out of its authorized and unissued shares of Common Stock or out
of authorized and issued shares of Common Stock held in its treasury, such
number of shares of Common Stock as will from time to time be sufficient to
permit the exercise in full of all outstanding Rights. The Corporation shall
take such action as may be required for it to comply with the foregoing sentence
of this Section 9(a).
(b) The Corporation shall use its best efforts to cause, from and
after such time as the Rights become exercisable, all shares of Common Stock
issued or reserved for issuance in accordance with this Rights Agreement to be
listed, upon official notice of issuance, upon the principal national securities
exchange, if any, upon which the Common Stock is listed or, if the principal
market for the Common Stock is not on any national securities exchange, to
-11-
be eligible for quotation on NASDAQ-SCM or any successor thereto or other
comparable quotation system.
(c) The Corporation covenants and agrees that it will take all such
actions as may be necessary to insure that all shares of Common Stock delivered
upon exercise of Rights shall, at the time of delivery of the certificates, for
such shares (subject to payment of the Exercise Price in respect thereof), be
duly and validly authorized and issued and fully paid and nonassessable shares.
(d) The Corporation shall use its best efforts to (i) file, as soon
as practicable following the occurrence of the event described in Section
11(a)(ii), or as soon as is required by law following the Distribution Date, as
the case may be, a registration statement under the Act, with respect to the
shares of Common Stock purchasable upon exercise of the Rights on an appropriate
form, (ii) cause such registration statement to become effective as soon as
practicable after such filing and (iii) cause such registration statement to
remain effective (with a prospectus at all times meeting the requirements of the
Act) until the earlier of (A) the date as of which the Rights are no longer
exercisable for Common Stock, or (B) the Expiration Date. The Corporation may
temporarily suspend, for a period of time not to exceed 120 days, the issuance
of shares of Common Stock upon exercise of a Right in order to prepare and file
a registration statement under the Act and permit it to become effective. The
Corporation will also take such action as may be appropriate under, or to ensure
compliance with, the securities or "blue sky" laws of the various states in
connection with the exercisability of the Rights. Notwithstanding any provision
of this Rights Agreement to the contrary, the Rights shall not be exercisable in
any jurisdiction unless the requisite qualification in such jurisdiction shall
have been obtained and until a registration statement under the Act (if
required) shall have been declared effective.
(e) The Corporation covenants and agrees that it will pay when due
and payable any and all federal and state Transfer Taxes which may be payable in
respect of the issuance or delivery of the Rights Certificates or of any shares
of Common Stock issued or delivered upon the exercise of Rights. The Corporation
shall not, however, be required to pay any Transfer Tax which may be payable in
respect of any transfer or delivery of a Rights Certificate to a Person other
than, or the issuance or delivery of certificates for Common Stock upon exercise
of Rights in a name other than that of, the registered holder of the Rights
Certificate, and the Corporation shall not be required to or issue or deliver a
Rights Certificate or certificate for Common Stock to a Person other than such
registered holder until any such Transfer Tax shall have been paid (any such
Transfer Tax being payable by the holder of such Rights Certificate at the time
of surrender) or until it has been established to the Corporation's satisfaction
that no such Transfer Tax is due.
Section 10. Record Date. Each Person in whose name any certificate
for shares of Common Stock is issued upon the exercise of Rights shall for all
purposes be deemed to have become the holder of record of the Common Stock
represented thereby on, and such certificate shall be dated as of, the date upon
which the Rights Certificate evidencing such Rights was duly surrendered and
payment of the Exercise Price (and any applicable Transfer Taxes) was made;
provided, however, that, if the date of such surrender and payment is a date
upon which the Common Stock transfer books of the Corporation are closed, such
Person shall be deemed to have become the record holder of such shares on, and
such certificate shall be dated as of, the
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next succeeding Business Day on which the Common Stock transfer books of the
Corporation are open. Prior to the exercise of the Rights evidenced thereby, the
holder of a Rights Certificate, as such, shall not be entitled to any rights of
a stockholder of the Corporation with respect to shares for which the Rights
shall be exercisable, including, without limitation, the right to vote, to
receive dividends or other distributions or to exercise any preemptive rights,
and shall not be entitled to receive any notice of any proceedings of the
Corporation, except as provided herein.
Section 11. Adjustment of Exercise Price or Number of Shares. The
Exercise Price and the number of shares of Common Stock which may be purchased
upon exercise of a Right and the number of Rights outstanding are subject to
adjustment from time to time as provided in this Section 11.
(a) (i) In the event the Corporation shall at any time after the
date of this Rights Agreement (A) declare or pay any dividend on Common Stock
payable in shares of Common Stock, (B) subdivide or split the outstanding shares
of Common Stock into a greater number of shares or (C) combine or consolidate
the outstanding shares of Common Stock into a smaller number of shares or effect
a reverse split of the outstanding shares of Common Stock, then and in each such
event the number of shares of Common Stock issuable upon the exercise of a Right
after the record date for such event (if one shall have been established or, if
not, after the date of such event) shall be the number of shares of Common Stock
issuable immediately prior to such event multiplied by a fraction the numerator
of which is the number of Rights outstanding immediately prior to such event and
the denominator of which is the number of Rights outstanding immediately after
such event and the Exercise Price after such event shall be the Exercise Price
in effect immediately prior to such event multiplied by such fraction. If an
event occurs which would require an adjustment under both this Section 11(a)(i)
and Section 11(a)(ii) hereof, the adjustment provided for in this Section
11(a)(i) shall be in addition to, and shall be made prior to, any adjustment
required pursuant to Section 11(a)(ii).
(ii) Subject to Section 27 of this Rights Agreement, in the event
that any Person (other than an Exempt Person), alone or together with its
Affiliates and Associates, shall become an Acquiring Person, then, subject
to the last sentence of Section 23(a) and except as otherwise provided in
this Section 11, each holder of a Right, except as provided in Section
7(e) hereof, shall thereafter have the right to receive upon exercise of
such Right in accordance with the terms of this Rights Agreement and
payment of the Exercise Price, the greater of (1) the number of shares of
Common Stock for which such Right was exercisable immediately prior to the
first occurrence of the event described in this Section 11(a)(ii) or (2)
such number of shares of Common Stock as shall equal the result obtained
by dividing the Exercise Price by 50% of the Fair Market Value of one
share of Common Stock (determined pursuant to Section 11(b) hereof) on the
date of such first occurrence; provided, however, that if the transaction
that would otherwise give rise to the foregoing adjustment is also subject
to the provisions of Section 13 hereof, then only the provisions of
Section 13 hereof shall apply and no adjustment shall be made pursuant to
this Section 11(a)(ii).
(iii) In the event that the Corporation does not have available
sufficient authorized but unissued Common Stock to permit the adjustments
required pursuant to
-13-
the foregoing subparagraph (i) or the exercise in full of the Rights in
accordance with the foregoing subparagraph (ii), the Corporation shall
take all such actions as may be necessary to authorize and reserve for
issuance such number of additional shares of Common Stock as may from time
to time be required to be issued upon the exercise in full of all Rights
from time to time outstanding and, if necessary, shall use its best
efforts to obtain stockholder approval thereof. In lieu of issuing shares
of Common Stock in accordance with the foregoing subparagraphs (i) and
(ii), the Corporation may, if the Board of Directors determines that such
action is necessary or appropriate and not contrary to the interests of
holders of Rights, make adequate provision to substitute for such Common
Stock, upon the exercise of the Rights, (A) cash, (B) a reduction in the
Exercise Price, (C) other equity securities of the Corporation, (D) debt
securities of the Corporation, (E) other assets or (F) any combination of
the foregoing, in each case, having an aggregate Fair Market Value equal
to the Fair Market Value of the shares of Common Stock which otherwise
would have been issuable pursuant to Section 11(a)(ii), which Fair Market
Value shall be determined by an investment banking firm selected by the
Board of Directors. For purposes of the preceding sentence, the Fair
Market Value of the Common Stock shall be as determined pursuant to
Section 11(b). Subject to Section 23 hereof, any such election by the
Board of Directors of the Corporation must be made and publicly announced
within thirty (30) days after the date on which the event described in
Section 11(a)(ii) occurs.
(b) For the purpose of this Rights Agreement, the "Fair Market
Value" of any share of Common Stock or any other stock or any Right or other
security or any other property on any date shall be determined as provided in
this Section 11(b). In the case of a publicly-traded stock or other security,
the Fair Market Value on any date shall be deemed to be the average of the daily
closing prices per share of such stock or per unit of such other security for
the 30 consecutive Trading Days (as such term is hereinafter defined)
immediately prior to such date; provided, however, that in the event that the
Fair Market Value per share of any share of Common Stock is determined during a
period which includes any date that is within 30 Trading Days after (i) the
ex-dividend date for a dividend or distribution on such stock payable in shares
of Common Stock or securities convertible into shares of Common Stock, or (ii)
the effective date of any subdivision, split, combination, consolidation,
reverse stock split or reclassification of such stock, then, and in each such
case, the Fair Market Value shall be appropriately adjusted by the Board of
Directors of the Corporation to take into account ex-dividend or post-effective
date trading. The closing price for any day shall be the last sale price,
regular way, or, in case no such sale takes place on such day, the average of
the closing bid and asked prices, regular way (in either case, as reported in
the applicable transaction reporting system with respect to securities listed or
admitted to trading on the NASDAQ-SCM), or, if the securities are not listed or
admitted to trading on the NASDAQ-SCM, as reported in the applicable transaction
reporting system with respect to securities listed on the principal national
securities exchange on which such security is listed or admitted to trading; or,
if not listed or admitted to trading on any national securities exchange, the
last quoted price (or, if not so quoted, the average of the high bid and low
asked prices) in the over-the-counter market, as reported by an automated
quotation service; or, if no bids for such security are quoted by any such
service, the average of the closing bid and asked prices as furnished by a
professional market maker making a market in such security selected by the Board
of Directors of the Corporation. The term "Trading Day" shall mean a day on
which the principal national securities exchange on which such security is
listed
-14-
or admitted to trading is open for the transaction of business or, if such
security is not listed or admitted to trading on any national securities
exchange, a Business Day. If a security is not publicly held or not so listed or
traded, "Fair Market Value" shall mean the fair value per share of stock or per
other unit of such other security, as determined by an independent investment
banking firm experienced in the valuation of securities selected in good faith
by the Board of Directors of the Corporation, or, if no such investment banking
firm is, in the good faith judgment of the Board of Directors, available to make
such determination, in good faith by the Board of Directors of the Corporation;
provided, however, that for purposes of making the adjustment provided for by
Section 11(a)(ii) hereof, the Fair Market Value of a share of Common Stock shall
not be less than 100% of the product of the Fair Market Value of a share of
Common Stock multiplied by the higher of the then Dividend Multiple or Vote
Multiple applicable to the Common Stock (as defined in the provisions of the
Certificate of Designations relating to the Common Stock) and shall not exceed
105% of the product of the then Fair Market Value of a share of Common Stock
multiplied by the higher of the then Dividend Multiple or Vote Multiple
applicable to the Common Stock. In the case of property other than securities,
the "Fair Market Value" thereof shall be determined in good faith by the Board
of Directors of the Corporation based upon such appraisals or valuation reports
of such independent experts as the Board of Directors of the Corporation shall
in good faith determine to be appropriate in accordance with good business
practices and the interests of the holders of Rights. Any such determination of
Fair Market Value shall be described in a statement filed with the Rights Agent
and shall be binding upon the Rights Agent.
(c) All calculations under this Section 11 shall be made to the
nearest cent or to the nearest one one-thousandth of a share, as the case may
be.
(d) Irrespective of any adjustment or change in the Exercise Price
or the number of shares of Common Stock issuable upon the exercise of the
Rights, the Rights Certificates theretofore and thereafter issued may continue
to express the Exercise Price and the number of shares to be issued upon
exercise of the Rights as in the initial Rights Certificates issued hereunder
but, nevertheless, shall represent the Rights as so adjusted.
(e) Before taking any action that would cause an adjustment reducing
the purchase price per whole share of Common Stock upon exercise of the Rights
below the then par value, if any, of the shares of Common Stock, the Corporation
shall use its best efforts to take any corporate action which may, in the
opinion of its counsel, be necessary in order that the Corporation may validly
and legally issue fully paid and non-assessable shares of such Common Stock at
such adjusted purchase price per share.
(f) Anything in this Section 11 to the contrary notwithstanding, in
the event of any reclassification of stock of the Corporation or any
recapitalization, reorganization or partial liquidation of the Corporation or
similar transaction, the Corporation shall be entitled to make such further
adjustments in the number of shares of Common Stock which may be acquired upon
exercise of the Rights, and such adjustments in the Exercise Price therefor, in
addition to those adjustments expressly required by the other paragraphs of this
Section 11, as the Board of Directors of the Corporation shall determine to be
necessary or appropriate in order for the holders of the Rights in such event to
be treated equitably and in accordance with the purpose and intent of this
Rights Agreement or in order that any such event shall not, but for
-15-
such adjustment, in the opinion of counsel to the Corporation, result in the
stockholders of the Corporation being subject to any United States federal
income tax liability by reason thereof.
(g) In the event the Corporation shall at any time after the Record
Date make any distribution on the shares of Common Stock of the Corporation,
whether by way of a dividend or a reclassification of stock, a recapitalization,
reorganization or partial liquidation of the Corporation or otherwise, in cash
or any debt security, debt instrument, real or personal property or any other
property (other than any shares of Common Stock or other capital stock of the
Corporation and other than any right or warrant to acquire any such shares,
including any debt security convertible into or exchangeable for any such share,
at less than the Fair Market Value of such shares) and the amount of such cash
dividend or the Fair Market Value of such debt security, debt instrument or
property exceeds 150% of the aggregate amount of the cash dividends declared or
paid on the Common Stock of the Corporation in the 15-month period immediately
preceding such distribution, then and in each such event, unless such
distribution is part of or is made in connection with a transaction to which
Section 11(a)(ii) or Section 13 hereof applies, the Exercise Price shall be
reduced by an amount equal to the cash or the Fair Market Value of such
distribution, as the case may be, per share of Common Stock of the Corporation.
For purposes hereof, the Fair Market Value of any property distributed to the
holders of shares of Common Stock of the Corporation shall be the Fair Market
Value of such property as determined by an independent investment banking firm
experienced in the valuation of securities or the other property so distributed,
as the case may be, selected in good faith by the Board of Directors of the
Corporation, or, if no such investment banking firm is in the good faith
judgment of the Board of Directors available to make such determination, in good
faith by the Board of Directors of the Corporation, whose determination shall be
final and binding on the Corporation, the Rights Agent and the holders of
Rights.
Section 12. Certification of Adjusted Exercise Price or Number of
Shares. Whenever an adjustment is made as provided in Section 11, 13 or 23(c),
the Corporation 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 a Rights Certificate in accordance with Section 25.
Notwithstanding the foregoing sentence, the failure of the Corporation to make
such certification or give such notice shall not affect the validity of or the
force or effect of the requirement for such adjustment. Any adjustment to be
made pursuant to Section 11, 13 or 23(c) of this Rights Agreement shall be
effective as of the date of the event giving rise to such adjustment. The Rights
Agent shall be fully protected in relying on any such certificate and on any
adjustment therein contained and shall not be deemed to have knowledge of any
adjustment unless and until it shall have received such certificate.
Section 13. Consolidation, Merger or Sale or Transfer of Assets or
Earning Power. (a) In the event that, at any time after the time that any Person
becomes an Acquiring Person, (x) the Corporation shall, directly or indirectly,
consolidate with, or merge with and into, any other Person or Persons (other
than an Exempt Person or Persons) and the Corporation shall not be the surviving
or continuing corporation of such consolidation or merger, or (y) any Person or
Persons (other than an Exempt Person) shall, directly or indirectly, consolidate
with, or merge with and into, the Corporation, and the Corporation shall be the
continuing or surviving
-16-
corporation of such consolidation or merger and, in connection with such
consolidation or merger, all or part of the outstanding shares of Common Stock
shall be changed into or exchanged for stock or other securities of any other
Person (other than an Exempt Person) or of the Corporation or cash or any other
property, or (z) the Corporation or one or more of its Subsidiaries shall,
directly or indirectly, sell or otherwise transfer to any other Person or any
Affiliate or Associate of such Person, in one or more transactions, or the
Corporation or one or more of its Subsidiaries shall sell or otherwise transfer
to any Persons in one or a series of related transactions, assets or earning
power aggregating more than 50% of the assets or earning power of the
Corporation and its Subsidiaries (taken as a whole), then, on the first
occurrence of any such event, proper provision shall be made so that (i) each
holder of record of a Right, except as provided in Section 7(e) hereof, shall
thereafter have the right to receive, upon the exercise thereof and payment of
the Exercise Price in accordance with the terms of this Rights Agreement, such
number of shares of validly issued, fully paid, non-assessable 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 equal the result obtained by dividing the Exercise Price by 50% of the
Fair Market Value of the Common Stock of the Principal Party on the date of the
consummation of such consolidation, merger, sale or transfer; (ii) such
Principal Party shall thereafter be liable for, and shall assume, by virtue of
such consolidation, merger, sale or transfer, all the obligations and duties of
the Corporation pursuant to this Rights Agreement; (iii) the term "Corporation"
for all purposes of this Rights Agreement shall thereafter be deemed to refer to
such Principal Party; (iv) such Principal Party shall take such steps
(including, but not limited to, the reservation of a sufficient number of shares
of its Common Stock in accordance with the provisions of Section 9 hereof
applicable to the reservation of Common Stock) in connection with such
consummation as may be necessary to insure that the provisions hereof shall
thereafter be applicable, as nearly as reasonably may be, in relation to its
shares of Common Stock thereafter deliverable upon the exercise of the Rights;
provided, however, that, upon the subsequent occurrence of any merger,
consolidation, sale of all or substantially all of the assets, recapitalization,
reclassification of shares, reorganization or other extraordinary transaction in
respect of such Principal Party, each holder of a Right shall thereupon be
entitled to receive, upon exercise of a Right and payment of the Exercise Price,
such cash, shares, rights, warrants and other property which such holder would
have been entitled to receive had it, at the time of such transaction, owned the
shares of Common Stock of the Principal Party purchasable upon the exercise of a
Right, and such Principal Party shall take such steps (including, but not
limited to, reservation of shares of stock) as may be necessary to permit the
subsequent exercise of the Rights in accordance with the terms hereof for such
cash, shares, rights, warrants and other property; and (v) the provisions of
Section 11(a)(ii) hereof shall be of no effect following the occurrence of any
event described in clause (x), (y) or (z) above of this Section 13(a).
(b) "Principal Party" shall mean:
(i) in the case of any transaction described in (x) or (y) of the
first sentence of Section 13(a) hereof: (A) the Person that is the issuer
of the securities into which shares of Common Stock of the Corporation are
changed or otherwise exchanged or converted in such merger or
consolidation, or, if there is more than one such issuer, the issuer of
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 or consolidation and that
-17-
survives such merger or consolidation, or, if there is more than one such
Person, the Person the Common Stock of which has the greatest market value
or (y) if the Person that is the other party to the merger or
consolidation does not survive the merger or consolidation, the Person
that does survive the merger or consolidation (including the Corporation
if it survives); and
(ii) in the case of any transaction described in (z) of the first
sentence in Section 13(a), the Person that is the party receiving the
greatest portion of the assets or earning power transferred pursuant to
such transaction or transactions, or, if each Person that is a party to
such transaction or transactions receives the same portion of the assets
or earning power so transferred or if the Person receiving the greatest
portion of the assets or earning power cannot be determined, whichever of
such Persons as is the issuer of Common Stock having the greatest market
value of shares outstanding; provided, however, that in any such case, if
the Common Stock of such Person is not at such time and has not been
continuously over the preceding 12-month period registered under Section
12 of the Exchange Act, and such Person is a direct or indirect Subsidiary
of another Person the Common Stock of which is and has been so registered,
the term "Principal Party" shall refer to such other Person, or if such
Person is a Subsidiary, directly or indirectly, of more than one Person,
the Common Stocks of all of which are and have been so registered, the
term "Principal Party" shall refer to whichever of such Persons is the
issuer of the Common Stock having the greatest market value of shares
outstanding.
(c) The Corporation shall not consummate any consolidation, merger
or sale or transfer of assets or earning power referred to in Section 13(a)
unless the Principal Party shall have a sufficient number of authorized shares
of its Common Stock that have not been issued or reserved for issuance to permit
exercise in full of all Rights in accordance with this Section 13 and unless
prior thereto the Corporation and the Principal Party involved therein shall
have executed and delivered to the Rights Agent an agreement confirming that the
Principal Party shall, upon consummation of such consolidation, merger or sale
or transfer of assets or earning power, assume this Rights Agreement in
accordance with Section 13(a) hereof and that all rights of first refusal or
preemptive rights in respect of the issuance of shares of Common Stock of the
Principal Party upon exercise of outstanding Rights have been waived and that
such transaction shall not result in a default by the Principal Party under this
Rights Agreement, and further providing that, as soon as practicable after the
date of any consolidation, merger or sale or transfer of assets or earning power
referred to in Section 13(a) hereof, the Principal Party will:
(i) prepare and file a registration statement under the Act with
respect to the Rights and the securities purchasable upon exercise of the
Rights on an appropriate form, use its best efforts to cause such
registration statement to become effective as soon as practicable after
such filing and use its best efforts to cause such registration statement
to remain effective (with a prospectus at all times meeting the
requirements of the Act) until the date of expiration of the Rights, and
similarly comply with applicable state securities laws;
-18-
(ii) use its best efforts to list (or continue the listing of) the
Rights and the securities purchasable upon exercise of the Rights on a
national securities exchange or to meet the eligibility requirements for
quotation on NASDAQ-SCM; and
(iii) deliver to holders of the Rights historical financial
statements for the Principal Party which comply in all respects with the
requirements for registration on Form 10 (or any successor form) under the
Exchange Act. In the event that any of the transactions described in
Section 13(a) hereof shall occur at any time after the occurrence of a
transaction described in Section 11(a)(ii) hereof, the Rights which have
not theretofore been exercised shall, subject to the provisions of Section
7(e) hereof, thereafter be exercisable in the manner described in Section
13(a).
(d) 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 Certificate of Incorporation or By-Laws or other
instrument governing its corporate affairs, which provision would have the
effect of (i) causing such Principal Party to issue, in connection with, or as a
consequence of, the consummation of a transaction referred to in this Section
13, shares of Common Stock of such Principal Party at less than the then Fair
Market Value per share (determined pursuant to Section 11(b) hereof) or
securities exercisable for, or convertible into, Common Stock of such Principal
Party at less than such then Fair Market Value (other than to holders of Rights
pursuant to this Section 13) or (ii) providing for any special tax or similar
payment in connection with the issuance to any holder of a Right of Common Stock
of such Principal Party pursuant to the provisions of this Section 13, then, in
such event, the Corporation shall not consummate any such transaction unless
prior thereto the Corporation 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 canceled, waived
or amended, or that the authorized securities shall be redeemed, so that the
applicable provision will have no effect in connection with, or as a consequence
of, the consummation of the proposed transaction.
Section 14. Fractional Rights and Fractional Shares. (a) The
Corporation shall not be required to issue fractions of Rights or to distribute
Rights Certificates which evidence fractional Rights (i.e., Rights to acquire
less than one share of Common Stock), unless such fractional Rights result from
a transaction referred to in Section 11(a)(i) hereof. If the Corporation shall
determine not to issue such fractional Rights, then, in lieu of such fractional
Rights, there shall be paid to the holders of record of the Rights Certificates
with regard to which such fractional Rights would otherwise be issuable, an
amount in cash equal to the same fraction of the Fair Market Value of a whole
Right.
(b) The Corporation shall not be required to issue fractions of
shares of Common Stock upon exercise of the Rights or to distribute certificates
which evidence fractional shares (other than fractions which are integral
multiples of one-thousandth of a share). In lieu of issuing fractions of shares
of Common Stock, the Corporation may, at its election, issue depositary receipts
evidencing fractions of shares pursuant to an appropriate agreement between the
Corporation and a depositary selected by it, provided that such agreement shall
provide that the holders of such depositary receipts shall have all of the
rights, privileges and preferences to which they would be entitled as owners of
the Common Stock. If the Corporation does not issue
-19-
such fractional shares or depositary receipts in lieu thereof, there shall be
paid to the holders of record of Rights Certificates at the time such Rights are
exercised as herein provided an amount in cash equal to the same fraction of the
Fair Market Value of a share of Common Stock.
(c) The holder of a Right by the acceptance of a Right expressly
waives his right to receive any fractional Right or any fractional shares of
Common Stock upon exercise of a Right.
Section 15. Rights of Action. All rights of action in respect of
this Rights Agreement, except the rights of action given to the Rights Agent in
Section 18 hereof, are vested in the respective registered holders of the Rights
Certificates (and, prior to the Distribution Date, the holders of record of the
Common Stock); and any holder of record of any Rights 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 Rights Certificate (or, prior to the
Distribution Date, of the Common Stock), may, in his own behalf and for his own
benefit, enforce, and may institute and maintain any suit, action or proceeding
against the Corporation to enforce, or otherwise act in respect of, his right to
exercise the Rights evidenced by such Rights Certificate in the manner provided
in such Rights Certificate and, in this Rights Agreement. Without limiting the
foregoing or any remedies available to the holders of Rights, it is specifically
acknowledged that the holders of Rights would not have an adequate remedy at law
for any breach of this Rights Agreement and will be entitled to specific
performance of the obligations under, and injunctive relief against actual or
threatened violations of, the obligations of any Person subject to this Rights
Agreement.
Section 16. Agreement of Right Holders. Each holder of a Right, by
accepting the same, consents and agrees with the Corporation and the Rights
Agent and with every other holder of a Right that:
(a) Prior to the Distribution Date, the Rights shall be evidenced by
the Book-Entries representing, or the certificates for, Common Stock registered
in the name of the holders of Common Stock (together, as applicable, with the
Summary of Rights), which Book-Entries representing, or the certificates for,
Common Stock shall also constitute certificates for Rights, and not by separate
Rights Certificates, and each Right shall be transferable only simultaneously
and together with the transfer of shares of Common Stock;
(b) After the Distribution Date, the Rights Certificates are
transferable only on the registry books of the Rights Agent if surrendered at
the office of the Rights Agent designated for such purpose, duly endorsed or
accompanied by a proper instrument of transfer;
(c) The Corporation and the Rights Agent may deem and treat the
person in whose name the Rights Certificate (or, prior to the Distribution Date,
the associated Book-Entry representing, or certificate for, Common Stock) is
registered as the absolute owner thereof and of the Rights evidenced thereby
(notwithstanding any notations of ownership or writing on the Rights
Certificates or the associated Common Stock certificate made by anyone other
than the Corporation or the Rights Agent) for all purposes whatsoever, and
neither the Corporation nor the Rights Agent shall be affected by any notice to
the contrary.
-20-
(d) Notwithstanding anything in this Rights Agreement to the
contrary, neither the Corporation nor the Rights Agent shall have any liability
to any holder of a Right or a beneficial interest in a Right or other Person as
a result of its inability to perform any of its obligations under this Rights
Agreement by reason of any preliminary or permanent injunction or other order,
decree or ruling issued by a court of competent jurisdiction or by a
governmental, regulatory or administrative agency or commission, or any statute,
rule, regulation or executive order promulgated or enacted by any governmental
authority, prohibiting or otherwise restraining performance of such obligation;
provided, however, the Corporation must use its best efforts to have any such
order, decree or ruling lifted or otherwise overturned as soon as possible; and
(e) Rights Beneficially Owned by certain persons will under certain
circumstances set forth in this Rights Agreement become null and void pursuant
to Section 7(e) hereof; and
(f) This Rights Agreement may be supplemented or amended from time
to time pursuant to Section 26 hereof.
Section 17. Rights Certificate Holder Not Deemed a Stockholder. No
holder, as such, of any Rights Certificate shall be entitled to vote, receive
dividends or be deemed for any purpose the holder of Common Stock or any other
securities which may at any time be issuable on the exercise of the Rights
represented thereby, nor shall anything contained herein or in any Rights
Certificate be construed to confer upon the holder of any Rights Certificate, as
such, any of the rights of a stockholder of the Corporation or any right to vote
for the election of directors or upon any matter submitted to stockholders at
any meeting thereof (except as provided in Section 7(f) hereof), or to give or
withhold consent to any corporate action (except as provided in Section 7(f)
hereof), or to receive notice of meetings or other actions affecting
stockholders (except as provided in Section 24 hereof), or to receive dividends
or subscription rights, or otherwise, until the Right or Rights evidenced by
such Rights Certificate shall have been exercised in accordance with the
provisions hereof.
Section 18. Concerning the Rights Agent. (a) The Corporation 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 Corporation also agrees to indemnify
the Rights Agent for, and to hold it harmless against, any loss, liability, or
expense, incurred without negligence, bad faith or willful misconduct on the
part of the Rights Agent, for anything done or failed to be done by the Rights
Agent in connection with the acceptance and administration of this Rights
Agreement, including the costs and expenses of defending against any claim of
liability relating to the Rights or this Rights Agreement.
(b) The Rights Agent shall be protected against, and shall incur no
liability for or in respect of, any action taken, suffered or omitted by it in
connection with its administration of this Rights Agreement in reliance upon any
Rights Certificate or certificate of Common Stock or for other securities of the
Corporation, instrument of assignment or transfer, power of attorney,
endorsement, affidavit, letter, notice, direction, consent, certificate,
statement or other
-21-
paper or document believed by it to be genuine and to be signed, executed and,
where necessary, verified or acknowledged, by the proper person or persons.
Section 19. Merger or Consolidation of, or Change in Name of, the
Rights Agent. (a) Any corporation into which the Rights Agent or any successor
Rights Agent may be merged or 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 case at the time such successor Rights Agent shall succeed
to the agency created by this Rights Agreement any of the Rights Certificates
shall have been countersigned but not delivered, any such successor Rights Agent
may adopt the countersignature of the predecessor Rights Agent and deliver such
Rights Certificates so countersigned; and in case at that time any of the Rights
Certificates shall not have been countersigned, any successor Rights Agent may
countersign such Rights Certificates either in the name of the predecessor
Rights Agent or in the name of the successor Rights Agent; and in all such cases
such Rights Certificates shall have the full force provided in the Rights
Certificates and in this 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 Rights Certificates so countersigned; in case
at that time any of the Rights Certificates shall not have been countersigned,
the Rights Agent may countersign such Rights Certificates either in its prior
name or in its changed name; in all such cases such Rights Certificates shall
have the full force provided in the Rights Certificates and in this Rights
Agreement.
Section 20. Duties of Rights Agent. The Rights Agent undertakes the
duties and obligations imposed by this Rights Agreement upon the following terms
and conditions, by all of which the Corporation and the holders of Rights
Certificates by their acceptance thereof shall be bound:
(a) The Rights Agent may consult with legal counsel (who may be
legal counsel for the Corporation), and the opinion of such counsel shall be
full and complete authorization and protection to the Rights Agent as to any
action taken or omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Rights
Agreement the Rights Agent shall deem it necessary or desirable that any fact or
matter be proved or established by the Corporation prior to taking or suffering
any action hereunder, such fact or matter (unless other evidence in respect
thereof be herein specifically prescribed) may be deemed to be conclusively
proved and established by a certificate signed by the Chairman of the Board, any
President or any Senior or Executive Vice President and by the Treasurer or the
Secretary of the Corporation and delivered to the Rights Agent. Any such
certificate shall be full
-22-
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 to the Corporation
and any other Person only for its own negligence, bad faith or willful
misconduct.
(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
Rights 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 Corporation 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 Rights Certificate (except its countersignature
thereof); nor shall it be responsible for any breach by the Corporation of any
covenant or condition contained in this Rights Agreement or in any Rights
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 Rights Certificates after receipt of a certificate describing 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 Rights
Certificate or as to whether any shares of Common Stock will, when issued, be
validly authorized and issued, fully paid and nonassessable.
(f) The Corporation 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 the 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 of the Board, any President or any Senior or Executive Vice President
or the Secretary or the Treasurer of the Corporation, 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 shareholder, director, officer or
employee of the Rights Agent may buy, sell or deal in any of the Rights or other
securities of the Corporation or become financially interested in any
transaction in which the Corporation may be interested, or contract with or lend
money to the Corporation 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 Corporation or for
any other legal entity.
(i) The Rights Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either itself or by or
through its attorneys or
-23-
agents, and the Rights Agent shall not be answerable or accountable for any act,
default, neglect or misconduct of any such attorneys or agents or for any loss
to the Corporation resulting from any such act, default, neglect or misconduct,
provided reasonable care was exercised in the selection and continued employment
thereof.
Section 21. Change of Rights Agent. The Rights Agent or any
successor Rights Agent may resign and be discharged from its duties under this
Rights Agreement upon 30 days notice in writing mailed to the Corporation and to
each transfer agent of the Common Stock by registered or certified mail. The
Corporation 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. If the Rights Agent shall resign
or be removed or shall otherwise become incapable of acting, the Corporation
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 Corporation 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 a Rights Certificate (who
shall, with such notice, submit his Rights Certificate for inspection by the
Corporation), then the incumbent Rights Agent or the holder of record of any
Rights Certificate may apply to any court of competent jurisdiction for the
appointment of a new Rights Agent. Any successor Rights Agent, whether appointed
by the Corporation or by such a court, shall be (a) a corporation organized and
doing business under the laws of the United States or of any state thereof, in
good standing, which is authorized under such laws to exercise corporate trust
or stock transfer powers and is subject to supervision or examination in the
conduct of its corporate trust or stock transfer business by federal or state
authorities and which has at the time of its appointment as Rights Agent a
combined capital and surplus of at least $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 Corporation 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 Rights Certificates.
Failure to give any notice provided for in this Section 21, however, or any
defect therein, shall not affect the legality or validity of the resignation or
removal of the Rights Agent or the appointment of the successor Rights Agent, as
the case may be. Notwithstanding the foregoing provisions, in the event of
resignation, removal or incapacity of the Rights Agent, the Corporation shall
have the authority to act as the Rights Agent until a successor Rights Agent
shall have assumed the duties of the Rights Agent hereunder.
Section 22. Issuance of New Rights Certificates. Notwithstanding any
of the provisions of this Rights Agreement or of the Rights to the contrary, the
Corporation may, at its option, issue new Rights Certificates evidencing Rights
in such form as may be approved by its Board of Directors to reflect any
adjustment or change in the Exercise Price per share and the
-24-
number or kind or class of shares of stock or other securities or property
purchasable under the Rights Certificates made in accordance with the provisions
of this Rights Agreement.
Section 23. Redemption. (a) The Corporation may, at its option, but
only by the vote of a majority of the Board of Directors, redeem all but not
less than all of the then outstanding Rights, at any time prior to the Close of
Business on the earlier of (i) the tenth day following the Stock Acquisition
Date (subject to extension by the Corporation as provided in Section 26 hereof)
or (ii) the Expiration Date, at a redemption price of $0.005 per Right, subject
to adjustments as provided in subsection (c) below (the "Redemption Price").
Notwithstanding anything contained in this Rights Agreement to the contrary, the
Rights shall not be exercisable pursuant to Section 11(a)(ii) prior to the
expiration of the Corporation's right of redemption hereunder.
(b) Without any further action and without any notice, the right to
exercise the Rights will terminate effective at the time so designated by action
of the Board of Directors ordering the redemption of the Rights and the only
right thereafter of the holders of Rights shall be to receive the Redemption
Price. Within 10 days after the effective time of the action of the Board of
Directors ordering the redemption of the Rights, the Corporation shall give
notice of such redemption to the holders of the then outstanding Rights by
mailing such notice to all such holders at their last addresses as they appear
upon the registry books of the Rights Agent or, prior to the Distribution Date,
on the registry books of the transfer agent for the Common Stock. Any notice
which is mailed in the manner herein provided shall be deemed given, whether or
not the holder receives the notice. Each notice of redemption will state the
method by which the payment of the Redemption Price will be made. At the option
of the Board of Directors, the Redemption Price may be paid in cash to each
Rights holder or by the issuance of shares and, at the Corporation's election
pursuant to Section 14(b) hereof, cash or depositary receipts in lieu of
fractions of shares of Common Stock having a Fair Market Value equal to such
cash payment.
(c) In the event the Corporation shall at any time after the date of
this Rights Agreement (A) pay any dividend on Common Stock in shares of Common
Stock, (B) subdivide or split the outstanding shares of Common Stock into a
greater number of shares or (C) combine or consolidate the outstanding shares of
Common Stock into a smaller number of shares or effect a reverse split of the
outstanding shares of Common Stock, or (D) combine or consolidate the
outstanding shares of Common Stock into a smaller number of shares of its
capital stock in a reclassification of the Common Stock (including any such
reclassification in connection with a consolidation or merger in which the
Corporation is the continuing or surviving corporation), then, and in each such
event, the Redemption Price shall be appropriately adjusted to reflect the
foregoing.
Section 24. Notice of Proposed Actions. (a) In case the Corporation,
after the Distribution Date, shall propose (i) to effect any of the transactions
referred to in Section 11(a)(i) or 11(g), (ii) to offer to the holders of record
of its Common Stock options, warrants, or other rights to subscribe for or to
purchase shares of Common Stock (including any security convertible into or
exchangeable for Common Stock) or any other securities, options, warrants,
convertible or exchangeable securities or other rights, (iii) to effect any
reclassification of its Common Stock or any recapitalization or reorganization
of the Corporation, (iv) to effect any consolidation or merger with or into, or
to effect any sale or other transfer (or to permit one or
-25-
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 Corporation
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 Corporation, then,
in each such case, the Corporation shall give to each holder of record of a
Rights Certificate, in accordance with Section 25, notice of such proposed
action, which shall specify the record date for the purposes of such transaction
referred to in Section 11(a)(i) or such dividend or distribution, or the date on
which such reclassification, recapitalization, reorganization, consolidation,
merger, sale or transfer of assets, liquidation, dissolution, or winding up is
to take place and the record date for determining participation therein by the
holders of record of Common Stock, 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 Common 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
Common Stock, 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 Corporation or the vote upon any such
action.
(b) In case any of the transactions referred to in Section 11(a)(i),
11(g) or 13 of this Rights Agreement are proposed, then, in any such case, the
Corporation shall give to each holder of Rights, in accordance with Section 25
hereof, notice of the proposal of such transaction at least 10 days prior to
consummating such transaction, which notice shall specify the proposed event and
the consequences of the event to holders of Rights under Section 11(a)(i), 11(g)
or 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 Rights Certificate or Right to or on the Corporation 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:
Gyrodyne Company of America, Inc.
βββ βββββββββββ ββββββ
ββ. βββββ, βββ ββββ βββββ
Attention: Corporate Secretary
Subject to the provisions of Section 21, any notice or demand
authorized by this Rights Agreement to be given or made by the Corporation or by
the holder of record of any Rights 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
Corporation) as follows:
Registrar and Transfer Company
ββ ββββββββ βββββ
ββββββββ, βββ ββββββ βββββ-ββββ
-26-
Notices or demands authorized by this Rights Agreement to be given or made by
the Corporation or the Rights Agent to the holder of record of any Rights
Certificate or Right shall be sufficiently given or made if sent by first-class
mail, postage prepaid, addressed to such holder at the address of such holder as
shown on the registry books of the Corporation.
Section 26. Supplements and Amendments. For as long as the Rights
are then redeemable, the Corporation may in its sole and absolute discretion,
and the Rights Agent shall if the Corporation so directs, supplement or amend
any provision of this Rights Agreement without the approval of any holders of
the Rights. At any time when the Rights are not then redeemable, the Corporation
may, and the Rights Agent shall if the Corporation so directs, supplement or
amend this Rights Agreement without the approval of any holders of Rights
Certificates (i) to cure any ambiguity, (ii) to correct or supplement any
provision contained herein which may be defective or inconsistent with any other
provisions herein or (iii) to change or supplement the provisions hereunder in
any manner which the Corporation may deem necessary or desirable, provided that
no such supplement or amendment pursuant to this clause (iii) shall materially
adversely affect the interest of the holders of Rights Certificates. Upon the
delivery of a certificate from an appropriate officer of the Corporation 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.
Section 27. Exchange. (a) The Board of Directors of the Corporation
may, at its option, at any time after any Person becomes an Acquiring Person,
exchange all or part of the then outstanding and exercisable Rights (which shall
not include Rights that have become void pursuant to the provisions of Section
7(e) hereof) for shares of Common Stock at an exchange ratio of one share 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), together with all
Affiliates and Associates of such Person, becomes the Beneficial Owner of 50% or
more of the Voting Stock then outstanding.
(b) Immediately upon the action of the Board of Directors of the
Corporation ordering the exchange of any Rights pursuant to paragraph (a) of
this Section 27 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 Corporation 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 Corporation 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.
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 7(e) hereof) held by each holder of Rights.
-27-
(c) 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 27, the
Corporation shall take all such action as may be necessary to authorize
additional shares of Common Stock for issuance upon exchange of the Rights.
(d) The Corporation shall not be required to issue fractions of
shares of Common Stock or to distribute certificates which evidence fractional
shares. In lieu of such fractional shares, the Corporation shall pay to the
registered holders of the Rights 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 paragraph (d), the current market value
of a whole share of Common Stock shall be the closing price of a share of Common
Stock for the Trading Day immediately prior to the date of exchange pursuant to
this Section 27.
Section 28. Successors. All of the covenants and provisions of this
Rights Agreement by or for the benefit of the Corporation or the Rights Agent
shall bind and inure to the benefit of their respective successors and assigns
hereunder.
Section 29. Benefits of this Rights Agreement. Nothing in this
Rights Agreement shall be construed to give to any Person or corporation other
than the Corporation, the Rights Agent and the registered holders of the Rights
Certificates (and, prior to the Distribution Date, the holders of Common Stock
in their capacity as holders of the Rights) any legal or equitable right, remedy
or claim under this Rights Agreement; but this Rights Agreement shall be for the
sole and exclusive benefit of the Corporation, the Rights Agent and the holders
of record of the Rights Certificates (and, prior to the Distribution Date, the
holders of Common Stock in their capacity as holders of the Rights).
Section 30. New York Contract. This Rights Agreement and each Rights
Certificate issued hereunder shall be deemed to be a contract made under the
laws of the State of New York and for all purposes shall be governed by and
construed and enforced in accordance with the laws of such state applicable to
contracts to be made and performed entirely within such state.
Section 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, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions of this Rights
Agreement shall remain in full force and effect and shall in no way be affected,
impaired or invalidated.
-28-
Section 34. Determinations and Actions by the Board of Directors,
etc. (a) The Board of Directors of the Corporation shall have the exclusive
power and authority to administer this Rights Agreement and to exercise all
rights and powers specifically granted to the Board of Directors or to the
Corporation, or as may be necessary or advisable in the administration of this
Rights Agreement, including, without limitation, the right and power to (i)
interpret the provisions of this Rights Agreement and (ii) make all
determinations deemed necessary or advisable for the administration of this
Rights Agreement (including a determination to redeem or not redeem the Rights
or to amend the Rights Agreement and a determination of whether there is an
Acquiring Person). 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 of Directors in
good faith shall (x) be final, conclusive and binding on the Corporation, the
Rights Agent, the holders of the Rights and all other parties, and (y) not
subject the Board of Directors to any liability to the holders of the Rights.
-29-
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.
GYRODYNE COMPANY OF AMERICA, INC.
By: /s/ βββββββ β. βββββββ
-----------------------------------------
Name: βββββββ β. βββββββ
Title: President, Chief Executive Officer
and Treasurer
REGISTRAR AND TRANSFER COMPANY
By: /s/ βββββββ β. Tatler
-----------------------------------------
Name: βββββββ β. Tatler
Title: Vice President
EXHIBIT A
TO RIGHTS AGREEMENT
UNDER CERTAIN CIRCUMSTANCES AS PROVIDED IN THE
RIGHTS AGREEMENT (AS REFERRED TO BELOW), RIGHTS ISSUED TO
OR BENEFICIALLY OWNED BY ACQUIRING PERSONS OR THEIR AFFILIATES
OR ASSOCIATES (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT)
OR ANY SUBSEQUENT HOLDER OF SUCH RIGHTS SHALL BE NULL AND VOID AND
MAY NOT BE TRANSFERRED TO ANY PERSON.
GYRODYNE COMPANY OF AMERICA, INC.
SUMMARY OF RIGHTS TO PURCHASE
COMMON STOCK
On August 10, 2004, the Board of Directors of Gyrodyne Company of
America, Inc. (the "Corporation") declared a dividend distribution of one right
(a "Right") for each outstanding share of Common Stock, $1.00 par value per
share, of the Corporation held by stockholders of record on August 27, 2004 (the
"Record Date"). Each Right entitles the registered holder to purchase from the
Corporation one share of common stock of the Corporation (the "Common Stock") at
a price of $75.00 per share (the "Exercise Price"). The description and terms of
the Rights are set forth in a Rights Agreement (the "Rights Agreement"), dated
as of August 10, 2004, between the Corporation and Registrar and Transfer
Company, as Rights Agent (the "Rights Agent").
As discussed below, initially the Rights will not be exercisable,
certificates will not be sent to stockholders and the Rights will automatically
trade with the Common Stock.
The Rights, unless earlier redeemed by the Board of Directors,
become exercisable upon the close of business on the day (the "Distribution
Date") which is the earlier of (i) the tenth day following the first date (the
"Stock Acquisition Date") on which there is a public announcement that a person
or group of affiliated or associated persons (an "Acquiring Person"), with
certain exceptions set forth below, has acquired beneficial ownership of 20% or
more of the outstanding voting stock of the Corporation or such earlier or later
date (not beyond the thirtieth day after the Stock Acquisition Date) as the
Board of Directors may determine or (ii) the tenth business day (or such later
date as may be determined by the Board of Directors prior to such time as any
person or group of affiliated or associated persons becomes an Acquiring Person)
after the date of the commencement or announcement of a person's or group's
intention to commence a tender or exchange offer the consummation of which would
result in the ownership of 20% or more of the Corporation's outstanding voting
stock (even if no shares are actually purchased pursuant to such offer); prior
thereto, the Rights will not be exercisable, will not be represented by a
separate certificate, and will not be transferable apart from the Common Stock,
but will instead be evidenced, (i) with respect to any of the shares of Common
Stock held in uncertificated book-entry form (a "Book-Entry") outstanding as of
the Record Date, by such Book-Entry and (ii) with respect to the shares of
Common Stock evidenced by Common Stock certificates outstanding as of the Record
Date, by such Common Stock certificate, together with
A-1
a copy of this Summary of Rights. An Acquiring Person does not include (A) the
Corporation, (B) any subsidiary of the Corporation, (C) any employee benefit
plan or employee stock plan of the Corporation or of any subsidiary of the
Corporation, or any trust or other entity organized, appointed, established or
holding Common Stock for or pursuant to the terms of any such plan or (D) any
person or group whose ownership of 20% or more of the shares of voting stock of
the Corporation then outstanding results solely from (i) any action or
transaction or transactions approved by the Board of Directors before such
person or group became an Acquiring Person or (ii) a reduction in the number of
outstanding shares of voting stock of the Corporation pursuant to a transaction
or transactions approved by the Board of Directors (provided that any person or
group that does not become an Acquiring Person by reason of clause (i) or (ii)
above shall become an Acquiring Person upon acquisition of an additional 1% or
more of the Corporation's voting stock then outstanding unless such acquisition
of additional voting stock will not result in such person or group becoming an
Acquiring Person by reason of such clause (i) or (ii). For purposes of the
foregoing, outstanding voting stock of the Corporation includes voting stock
that trades on a "when issued" basis on a national securities exchange or on The
Nasdaq SmallCap Market.
Until the Distribution Date (or earlier redemption or expiration of
the Rights), new Common Stock certificates issued after August 27, 2004 will
contain a legend incorporating the Rights Agreement by reference. Until the
Distribution Date (or earlier redemption or expiration of the Rights), transfer
on the Corporation's Direct Registration System of any Common Stock represented
by a Book-Entry or a certificate outstanding as of August 27, 2004, and, in each
case, with or without a copy of this Summary of Rights attached thereto, will
also constitute the transfer of the Rights associated with the Common Stock
represented by such Book-Entry or certificate. As soon as practicable following
the Distribution Date, separate certificates evidencing the Rights ("Rights
Certificates") will be mailed to holders of record of the Common Stock as of the
close of business on the Distribution Date and such separate Rights Certificates
alone will evidence the Rights from and after the Distribution Date.
The Rights are not exercisable until the Distribution Date. Unless
earlier redeemed by the Corporation as described below, the Rights will expire
at the close of business on August 11, 2014 (the "Expiration Date") (or, if the
Distribution Date shall have occurred before August 11, 2014, at the close of
business on the 90th day following the Distribution Date).
The number of shares of Common Stock issuable upon exercise of the
Rights is subject to certain adjustments from time to time in the event of a
stock dividend on, or a subdivision or combination of, the Common Stock. The
Exercise Price for the Rights is subject to adjustment in the event of
extraordinary distributions of cash or other property to holders of Common
Stock.
Unless the Rights are earlier redeemed, in the event that, after the
time that a Person becomes an Acquiring Person, the Corporation were to be
acquired in a merger or other business combination (in which any shares of
Common Stock are changed into or exchanged for other securities or assets) or
more than 50% of the assets or earning power of the Corporation and its
subsidiaries (taken as a whole) were to be sold or transferred in one or a
series of related transactions, the Rights Agreement provides that proper
provision will be made so that each
A-2
holder of record, other than the Acquiring Person, of a Right will from and
after such date have the right to receive, upon payment of the Exercise 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 Exercise Price.
In addition, unless the Rights are earlier redeemed, in the event
that a person or group becomes an Acquiring Person, the Rights Agreement
provides that proper provision will be made so that each holder of record of a
Right, other than the Acquiring Person (whose Rights will thereupon become null
and void), will thereafter have the right to receive, upon payment of the
Exercise Price, that number of shares of Common Stock having a market value at
the time of the transaction equal to two times the Exercise Price (such market
value to be determined with reference to the market value of the Corporation's
Common Stock as provided in the Rights Agreement).
At any time after any person or group becomes an Acquiring Person
and prior to the acquisition by such person or group of 50% or more of the
outstanding voting stock, the Board of Directors of the Corporation may exchange
the Rights (other than Rights owned by such person or group which will have
become void), in whole or in part, at an exchange ratio of one share of Common
Stock per Right (subject to adjustment).
Fractions of shares of Common Stock may, at the election of the
Corporation, be evidenced by depositary receipts. The Corporation may also issue
cash in lieu of fractional shares.
At any time on or prior to the close of business on the earlier of
(i) the tenth day after the Stock Acquisition Date (or such later date as a
majority of the Board of Directors may determine) or (ii) the Expiration Date,
the Corporation may redeem the Rights in whole, but not in part, at a price of
$0.005 per Right (the "Redemption Price"). Immediately upon the effective time
of the action of the Board of Directors of the Corporation 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.
For as long as the Rights are then redeemable, the Corporation may
amend the Rights in any manner, including an amendment to extend the time period
in which the Rights may be redeemed. At any time when the Rights are not then
redeemable, the Corporation may amend the Rights in any manner that does not
materially adversely affect the interests of holders of the Rights as such.
Until a Right is exercised, the holder, as such, will have no rights
as a stockholder of the Corporation, including, without limitation, the right to
vote or to receive dividends.
A copy of the Rights Agreement has been filed with the Securities
and Exchange Commission as an Exhibit to the Corporation's report on Form 8-K
filed on August 13, 2004. A copy of the Rights Agreement is available free of
charge from the Corporation. 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.
A-3
EXHIBIT B
TO RIGHTS AGREEMENT
[Form of Rights Certificate]
Certificate No. W - ________ Rights
NOT EXERCISABLE AFTER (I) AUGUST 11, 2014, OR (II) IF
THE DISTRIBUTION DATE (AS DEFINED BELOW) SHALL HAVE
OCCURRED BEFORE THE DATE SPECIFIED IN CLAUSE (I), THE
DATE WHICH IS NINETY (90) DAYS AFTER THE DISTRIBUTION
DATE, OR EARLIER IF REDEEMED. THE RIGHTS ARE SUBJECT TO
REDEMPTION, AT THE OPTION OF THE CORPORATION AND UNDER
CERTAIN OTHER CIRCUMSTANCES, AT $0.005 PER RIGHT
(SUBJECT TO ADJUSTMENT), ON THE TERMS SET FORTH OR
REFERRED TO IN THE RIGHTS AGREEMENT. UNDER CERTAIN
CIRCUMSTANCES AS PROVIDED IN THE RIGHTS AGREEMENT (AS
REFERRED TO BELOW), RIGHTS ISSUED TO OR BENEFICIALLY
OWNED BY ACQUIRING PERSONS OR THEIR AFFILIATES OR
ASSOCIATES (AS SUCH TERMS ARE DEFINED IN THE RIGHTS
AGREEMENT) OR ANY SUBSEQUENT HOLDER OF SUCH RIGHTS SHALL
BE NULL AND VOID AND MAY NOT BE TRANSFERRED TO ANY
PERSON.
Rights Certificate
This certifies that _________________, or registered assigns, is the
registered owner of the number of Rights set forth above, each of which entitles
the owner thereof, subject to the terms, provisions and conditions of the Rights
Agreement dated as of August 10, 2004 (the "Rights Agreement") between Gyrodyne
Company of America, Inc. (the "Corporation"), and Registrar and Transfer
Company, (the "Rights Agent"), to purchase from the Corporation at any time
after the Distribution Date (as such term is defined in the Rights Agreement)
and prior to 5:00 p.m. (New York City time) on August 11, 2014 (or if the
Distribution Date shall have occurred before August 11, 2014, at the close of
business on the 90th day following the Distribution Date) at the office of the
Rights Agent designated in the Rights Agreement for such purpose, or its
successor as Rights Agent, one fully paid nonassessable share of Common Stock,
$1.00 par value per share, of the Corporation (the "Common Stock") at a purchase
price of $75.00, as the same may from time to time be adjusted in accordance
with the Rights Agreement (the "Exercise Price"), upon presentation and
surrender of this Rights Certificate with the Form of Election to Purchase
attached hereto duly executed.
As provided in the Rights Agreement, the Exercise Price and the
number of shares of Common Stock which may be purchased upon the exercise of the
Rights evidenced by this Rights 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 Common Stock, or other property,
may be acquired upon exercise of the Rights evidenced by this Rights
Certificate, as provided in the Rights Agreement.
B-1
This Rights 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 Corporation and the holders of record of Rights Certificates. Copies of the
Rights Agreement are on file at the principal executive office of the
Corporation.
This Rights Certificate, with or without other Rights Certificates,
upon surrender at the office of the Rights Agent designated in the Rights
Agreement for such purpose, may be exchanged for another Rights Certificate or
Rights Certificates of like tenor and date evidencing Rights entitling the
holder of record to purchase a like aggregate number of shares of Common Stock
as the Rights evidenced by the Rights Certificate or Rights Certificates
surrendered shall have entitled such holder to purchase. If this Rights
Certificate shall be exercised in part, the holder shall be entitled to receive
upon surrender hereof, another Rights Certificate or Rights Certificates for the
number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights
evidenced by this Certificate may be redeemed by the Corporation at its option
or under certain other circumstances at a redemption price of $0.005 per Right.
No fractional shares of Common Stock are required to be issued upon the exercise
of any Right or Rights evidenced hereby, and in lieu thereof the Corporation may
cause depositary receipts to be issued and/or a cash payment may be made, as
provided in the Rights Agreement.
No holder of this Rights Certificate, as such, shall be entitled to
vote or receive dividends or be deemed for any purpose the holder of Common
Stock or of any other securities of the Corporation which may at any time be
issuable on the exercise hereof, nor shall anything contained in the Rights
Agreement or herein be construed to confer upon the holder hereof, as such, any
of the rights of a stockholder of the Corporation or any right to vote for the
election of directors or upon any matter submitted to stockholders at meeting
thereof, or to give or withhold consent to any corporate action or to receive
notice of meetings or other actions affecting stockholders (except as provided
in the Rights Agreement), or to receive dividends or subscription rights, or
otherwise, until the Right or Rights evidenced by this Rights Certificate shall
have been exercised as provided in the Rights Agreement. This Rights Certificate
shall not be valid or obligatory for any purpose until it shall have been
countersigned by the Rights Agent.
B-2
WITNESS the facsimile signature of the proper officers of the
Corporation and its corporate seal. Dated as of __________________.
ATTEST:
_______________________________________ By:____________________________________
Secretary Name:
Title:
Countersigned:
REGISTRAR AND TRANSFER COMPANY
By:____________________________________
B-3
[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder desires to
transfer the Rights Certificates.)
FOR VALUE RECEIVED _____________________________________ hereby
sells, assigns and transfers unto_______________________________________________
________________________________________ (Please print name and address of
transferee) _____________________________________________________________ Rights
evidenced by this Rights Certificate, together with all right, title and
interest therein, and does hereby irrevocably constitute and appoint
______________________________ Attorney to transfer the within Rights
Certificate on the books of the within-named Corporation, with full power of
substitution.
Dated: ________________, ____
______________________________________
Signature
Signature Guaranteed:
B-4
Certificate
The undersigned hereby certifies by checking the appropriate boxes
that:
(1) this Rights Certificate [ ] is [ ] is not being sold, assigned
or transferred by or on behalf of a Person who is or was an Acquiring Person or
an Associate or an Affiliate thereof (as such terms are defined in the Rights
Agreement); and
(2) after due inquiry and to the best knowledge of the undersigned,
it [ ] did [ ] did not acquire the Rights evidenced by this Rights Certificate
from any Person who is, was or subsequently became an Acquiring Person or an
Affiliate or Associate thereof (as such terms are defined in the Rights
Agreement).
Dated: ________________, ____ _______________________________________
Signature
NOTICE
The signature to the foregoing Assignment and Certificate must
correspond to the name as written upon the face of this Rights Certificate in
every particular, without alteration or enlargement or any change whatsoever.
B-5
FORM OF ELECTION TO PURCHASE
(To be executed if registered holder
desires to exercise the Rights Certificate.)
TO: _________________
The undersigned hereby irrevocably elects to exercise ____________
Rights represented by this Rights Certificate to purchase the shares of Common
Stock issuable upon the exercise of such Rights and requests that certificates
for such share(s) be issued in the following name:
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 Rights
Certificate, a new Rights Certificate for the balance remaining of 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 fact of this
Rights Certificate)
Signature Guaranteed
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