----------------------------------------------------------------------
RIGHTS AGREEMENT
by and between
MINERALS TECHNOLOGIES INC.
and
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
as Rights Agent
Effective as of
September 13, 1999
-----------------------------------------------------------------------
TABLE OF CONTENTS
Page
-----
Section 1. Certain Definitions 2
Section 2. Appointment of Rights Agent 9
Section 3. Issuance of Rights Certificates 10
Section 4. Form of Rights Certificates 13
Section 5. Countersignature and Registration 14
Section 6. Transfer, Split Up, Combination and
Exchange of Rights Certificates; Mutilated,
Destroyed, Lost or Stolen Rights Certificates 15
Section 7. Exercise of Rights; Exercise Price;
Expiration Date of Rights 17
Section 8. Cancellation and Destruction of Rights
Certificates 20
Section 9. Reservation and Availability of Shares of
Preferred Stock 21
Section 10. Preferred Stock Record Date 23
Section 11. Adjustment of Exercise Price or Number of
Shares 24
Section 12. Certification of Adjusted Exercise Price or
Number of Shares 31
Section 13. Consolidation, Merger or Sale or Transfer of
Assets or Earning Power 31
Section 14. Fractional Rights and Fractional Shares 37
Section 15. Rights of Action 38
Section 16. Agreement of Right Holders 39
Section 17. Rights Certificate Holder Not Deemed a
Stockholder 40
Section 18. Concerning the Rights Agent 41
Section 19. Merger or Consolidation of, or Change in Name
of, the Rights Agent 42
Section 20. Duties of Rights Agent 43
Section 21. Change of Rights Agent 46
Section 22. Issuance of New Rights Certificates ▇▇
-▇-
▇▇▇▇▇▇▇ ▇▇. Redemption 48
Section 24. Notice of Proposed Actions 50
Section 25. Notices 51
Section 26. Supplements and Amendments 52
Section 27. Exchange 53
Section 28. Successors 55
Section 29. Benefits of this Rights Agreement 55
Section 30. Delaware Contract 55
Section 31. Counterparts 55
Section 32. Descriptive Headings 56
Section 33. Severability 56
Section 34. Determinations And Actions By The Board Of
Directors, Etc 56
-ii-
Exhibit A Summary of Rights
Exhibit B Form of Rights Certificate
Exhibit C Form of Amended Certificate of Designations Relating to
the Terms of the Series A Junior Preferred Stock
-i-
RIGHTS AGREEMENT
Agreement, effective as of September 13, 1999, by and between
MINERALS TECHNOLOGIES INC., a Delaware corporation (the
"Company"), and CHASEMELLON SHAREHOLDER SERVICES, L.L.C. (the
"Rights Agent") (the "Rights Agreement").
W I T N E S S E T H:
-------------------
WHEREAS, on August 27, 1999, the Board of Directors of the
Company authorized the issuance of, and declared a dividend payable
in, one right (a "Right") for each share of Common Stock, $0.10 par
value per share, of the Company outstanding as of the close of
business on September 13, 1999 (the "Record Date"), each such Right
representing the right to purchase one onehundredth of a share of
Series A Junior Preferred Stock of the Company (the "Preferred
Stock") having the rights and preferences set forth in the Amended
Certificate of Designations attached hereto as Exhibit C, authorized
by the Company's Board of Directors on August 27, 1999 upon the
terms and subject to the conditions hereinafter set forth; and
WHEREAS, the Board of Directors of the Company 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:
-1-
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, shall be the Beneficial Owner
(as such term is hereinafter defined) of 15% or more of the Voting
Stock (as such term is hereinafter defined) of the Company 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
Company, 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 Company's 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 Company pursuant
to a transaction or a series of related transactions approved by the
Board of Directors of the Company; 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 Company, unless the
acquisition of such additional Voting Stock would not result in such
Person becoming an Acquiring Person by reason of subclause (A) or
(B) of this clause (ii). Notwithstanding the foregoing, if the
Board of Directors of the Company determines in good faith that a
Person who would otherwise be an
-2-
"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 of the
Company) 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 12b2 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
-3-
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 (or any comparable or
successor law or regulation), 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 (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
-4-
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
Company; provided, however, that for purposes of
determining Beneficial Ownership of securities under this
Rights Agreement, officers and directors of the Company
solely by reason of their status as such shall not
constitute a group (notwithstanding that they may be
Associates of one another or may 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 Company.
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.
-5-
(e) "Book-Entry" shall mean an uncertificated book-entry for
the Company'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 or New
Jersey 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 Company,
shall mean the common stock, presently $0.10 par value, of the Company.
"Common Stock," when used with reference to any Person other than
the Company which shall be organized in corporate form, shall mean
the capital stock or other equity security with the greatest 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 Company which shall not be organized in
corporate form, shall mean units of beneficial interest which shall
represent the right to participate in profits, losses, deductions
and credits of such Person and which shall be entitled to exercise
the greatest voting power 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.
-6-
(k) "Exempt Person" shall mean (i) the Company, (ii) any
Subsidiary of the Company or (iii) any employee benefit plan or employee
stock plan of the Company or any Subsidiary of the Company, or any trust
or other entity organized, appointed, established or holding Common
Stock for or pursuant to the terms of any such plan.
(l) "Exercise Price" shall have the meaning set forth in
Section 4 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" shall mean the National Association of Securities
Dealers, Inc. Automated Quotation System 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) "Qualifying Tender Offer" shall mean a tender or exchange offer
for all outstanding shares of Common Stock of the Company approved by
the Board of Directors of the Company after taking into account the
potential long-term value of the Company and all other factors that
they consider relevant.
(s) "Record Date" shall have the meaning set forth in the
first Recital.
(t) "Redemption Price" shall have the meaning set forth in Section
23(a) hereof.
-7-
(u) "Rights Certificate" shall have the meaning set forth in
Section 3(d) hereof.
(v) "Stock Acquisition Date" shall mean the first date on which
there shall be a public announcement by the Company or an Acquiring Person
that an Acquiring Person has become such (which, for purposes of
this definition, shall include, without limitation, a report filed
pursuant to Section 13(d) of the Exchange Act) or such earlier date
as the Board of Directors of the Company shall become aware of the
existence of an Acquiring Person.
(w) "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 of the Company 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.
(x) "Summary of Rights" shall have the meaning set forth in Section
3(a) hereof.
(y) "Trading Day" shall have the meaning set forth in Section
11(b) hereof.
(z) "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, shares of Common Stock and
shares of Preferred Stock.
(aa) "Voting Stock" shall mean (i) the Common Stock of the
Company and (ii) any other shares of capital stock of the Company
entitled to vote generally in the election of
-8-
directors or entitled to vote together with the Common Stock in
respect of any merger, consolidation, sale of all or substantially
all of the Company's assets, liquidation, dissolution or winding up.
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. 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 of the Company or in respect of any merger, consolidation,
sale of all or substantially all of the Company's assets,
liquidation, dissolution or winding up.
Any determination required to be made by the Board of Directors of the
Company for purposes of applying the definitions contained in this
Section 1 shall be made by the Board of Directors of the Company 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 Company hereby
appoints the Rights Agent to act as agent for the Company in
accordance with the terms and conditions hereof, and the Rights
Agent hereby accepts such appointment.
The Company may from time to time appoint such Co-Rights Agents as
it may deem necessary or desirable. The Rights Agent shall have no
duty to supervise, and in no event shall be liable for, the acts or
omissions of any such co-Rights Agent.
-9-
Section 3. Issuance of Rights Certificates.
(a) On the Record Date (or as soon as practicable thereafter),
the Company or the Rights Agent (if provided with all necessary
information) 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
Company.
(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 of the Company 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 of the Company prior to such time
as any Person becomes an Acquiring Person) after the date of the
commencement by any Person (other than an Exempt Person) of, or the
first public announcement of the intent of any Person (other than an
Exempt Person) to commence, a tender or exchange offer upon the
successful consummation of which such Person, together with its
Affiliates and Associates, would be the Beneficial Owner of 15% or
more of the then outstanding shares of Voting Stock of the Company
(irrespective of whether any shares are actually purchased pursuant
to any such offer) (the earlier of such dates being herein referred
to as the "Distribution Date"), (x) the Rights shall be evidenced by
the Book-Entries, or certificates representing 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
-10-
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 Company'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 Company'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 Minerals Technologies Inc. (the
"Company") and ChaseMellon Shareholder Services, L.L.C. (the
"Rights Agent"), effective as of September 13, 1999, 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
Company. 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 Company shall mail to the registered holder of
-11-
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 ISSUED TO OR BENEFICIALLY OWNED BY
ACQUIRING PERSONS OR THEIR AFFILIATES OR ASSOCIATES (AS SUCH
TERMS ARE DEFINED IN THE RIGHTS AGREEMENT) OR ANY SUBSEQUENT
HOLDER OF SUCH RIGHTS SHALL BE NULL AND VOID AND MAY NOT BE
TRANSFERRED TO ANY PERSON.
(d) As soon as practicable after the Distribution Date, the Company
will prepare and execute, the Rights Agent will countersign, and the
Company will send or cause to be sent (and the Rights Agent will, if
requested and provided with all necessary information, send), by
first class mail, postage prepaid, to each record holder of the
Common Stock as of the Close of Business on the Distribution Date,
as shown by the records of the Company, at the address of such
holder shown on such records, a certificate in the form provided by
Section 4 hereof (a "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 Company (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 Company prior to the Distribution Date and (ii) may, in any
other case, if deemed necessary or appropriate by the Board of
Directors of the Company, 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,
-12-
(i) the Company shall be advised by counsel that such issuance would
create a significant risk of material adverse tax consequences to the
Company or the Person to whom such 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 Company may deem appropriate (but which do
not affect the duties or responsibilities of the Rights Agent) 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 (including fractional shares which
are integral multiples of one one-hundredth of a share) of Preferred
Stock as shall be set forth therein at the price payable upon
exercise of a Right provided by Section 7(b) hereof as the same may
from time to time be adjusted as provided herein (the "Exercise
Price").
-13-
(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 null and void pursuant to Section
7(e) shall have impressed on, printed on, written on or otherwise
affixed to it (if the Company and the Rights Agent have 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 null and 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
Company by its Chairman of the Board, any President or any Vice
President, either manually or by facsimile signature, and have
affixed thereto the Company's seal or a facsimile thereof which
shall be attested to by the Secretary or an Assistant Secretary of
the Company, 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 Company
who shall have signed any Rights Certificate shall cease to be such
officer of the Company before countersignature by the Rights Agent
and issuance and delivery of the certificate by the Company, 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 Company. Any Rights Certificate may be
signed on behalf of the Company by any person who, on the date of
the execution of such Rights Certificate, shall be a proper officer
of the
-14-
Company 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 and receipt by the Rights
Agent of all relevant information, 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 4(b), 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 Preferred 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 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 Company
and the Rights Agent), duly
-15-
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 Company may require payment of a sum sufficient to
cover any Transfer Tax that may be imposed in connection with any
transfer, split up, combination or exchange of any Rights
Certificates. The Rights Agent shall have no duty or obligation to
take any action under any Section of this Agreement which requires
the payment by a Rights holder of Transfer Taxes unless and until
the Rights Agent is satisfied that all such Transfer Taxes have been
paid.
(b) Subject to the provisions of Sections 4(b), 7(e), 7(f) and
14(b) hereof, upon receipt by the Company and the Rights Agent of
evidence reasonably satisfactory to them of the loss, theft,
destruction or mutilation of a Rights Certificate, and, in case of
loss, theft or destruction, of indemnity or security satisfactory to
them and, if requested by the Company, reimbursement to the Company
and the Rights Agent of all reasonable expenses incidental thereto,
or upon surrender to the Rights Agent and cancellation of the Rights
Certificate if mutilated, the Company 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.
-16-
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 or other designated office of the Rights Agent in
New York, NY, 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) September 13, 2009 (or if the Distribution Date shall have
occurred before September 13, 2009, 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 or
exchanged as provided in Section 27 hereof (such earlier date being
herein referred to as the "Expiration Date").
(b) The Exercise Price shall initially be $250.00 for each one
one-hundredth (1/100) of a share of Preferred Stock issued pursuant
to the exercise of a Right. The Exercise Price and the number of
shares of Preferred Stock or other securities to be acquired upon
exercise of a Right shall be subject to adjustment from time to time
as provided in Sections 11 and 13 hereof. 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,
-18-
accompanied by payment by certified check, cashier's check, bank draft
or money order payable to the Company or the Rights Agent of the Exercise
Price for the shares to be purchased and an amount equal to any applicable
Transfer Tax required to be paid by the holder of the 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 Preferred Stock of the
Company one or more certificates representing the number of shares
of Preferred Stock to be so purchased, and the Company hereby
authorizes and directs such 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 Company, cause depositary
receipts to be issued in lieu of fractional shares of Preferred
Stock, (iii) if the election provided for in the immediately
preceding clause (ii) has not been made, requisition from the
Company the amount of cash to be paid in lieu of the issuance of
fractional shares in accordance with Section 14(b) hereof, (iv)
after receipt of such Preferred Stock certificates and, if
applicable, 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 Preferred Stock, pursuant to
Section 13 hereof, the Rights Agent shall promptly take the
appropriate actions corresponding in such case to that referred to
in the foregoing clauses (i) through (v) of this Section 7(c).
Notwithstanding the foregoing provisions of this Section 7(c), the
Company may suspend the issuance of shares of Preferred Stock upon
exercise of a Right for a reasonable period, not in excess of 90
days, during which the Company seeks to register under the
Securities Act of 1933, as amended (the "Act"), and any applicable
securities law of any other jurisdiction, the shares of Preferred
Stock to be issued pursuant to the Rights; PROVIDED, HOWEVER, that
nothing contained in this Section 7(c) shall relieve the Company of
its obligations under Section 9(c) hereof. The Company shall
promptly provide the Rights Agent with written notice of such
suspension.
(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, other than pursuant to
a Qualifying Tender Offer, 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 of the
Company 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 null
and 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. No Rights
Certificate shall be issued pursuant to Section 3 hereof that
represents Rights Beneficially Owned by an Acquiring Person or any
other Person
-19-
whose Rights would be null and 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 null and 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 null
and void pursuant to the provisions of this Section 7(e) shall be
canceled. The Company shall notify the Rights Agent when this
Section 7(e) applies and shall use all reasonable efforts to ensure
that the provisions of this Section 7(e) are complied with, but
neither the Company nor the Rights Agent shall have any liability to
any holder of a Rights Certificate or any other Person as a result
of the Company's failure to make any determination with respect to
an Acquiring Person or its Affiliates, Associates or transferees
hereunder.
(f) Notwithstanding anything in this Rights Agreement to the
contrary, neither the Rights Agent nor the Company shall be obligated to
undertake any action with respect to a registered holder upon the
occurrence of any purported exercise as set forth in this Section 7
unless such registered holder shall have (i) properly 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 Company
or the Rights Agent 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
-20-
shall, if surrendered to the Company or to any of its agents, be
delivered to the Rights Agent for cancellation or in canceled form, or,
if surrendered to the Rights Agent, shall be canceled by it, and no
Rights Certificates shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Rights
Agreement. The Company shall deliver to the Rights Agent for
cancellation and retirement, and the Rights Agent shall cancel and
retire, any Rights Certificate purchased or acquired by the Company
otherwise than upon the exercise thereof. The Rights Agent shall
deliver all canceled Rights Certificates to the Company, or shall,
at the written request of the Company, destroy such canceled Rights
Certificates, and in such case shall deliver a certificate of
destruction thereof to the Company.
Section 9. Reservation and Availability of Shares of Preferred
Stock.
(a) The Company covenants and agrees that it will cause to be
reserved and kept available out of its authorized and unissued
shares of Preferred Stock or out of authorized and issued shares of
Preferred Stock held in its treasury, such number of shares of
Preferred Stock as will from time to time be sufficient to permit
the exercise in full of all outstanding Rights. The Company shall
take such action as may be required for it to comply with the
foregoing sentence of this Section 9(a).
(b) The Company shall use its best efforts to cause, from and after
such time as the Rights become exercisable, all shares of Preferred Stock
issued or reserved for issuance in accordance with this Rights
Agreement to be listed, upon official notice of issuance, upon the
principal national securities exchange, if any, upon which the
Common Stock is listed or, if the principal market for the Common
Stock is not on any national securities exchange, to be eligible for
quotation on NASDAQ or any successor thereto or other comparable
quotation system.
-21-
(c) The Company covenants and agrees that it will take all
such actions as may be necessary to insure that all shares of
Preferred 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 Company shall use its best efforts to (i) file, as soon as
practicable following the occurrence of the event described in
Section 11(a)(ii), or 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 Preferred 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 Preferred
Stock, or (B) the Expiration Date. The Company may temporarily
suspend, for a period of time not to exceed 90 days, the issuance of
shares of Preferred 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 Company shall promptly provide written
notice to the Rights Agent of such suspension. The Company will
also take such action as may be appropriate under, or to ensure
compliance with, the securities or "blue sky" laws of the various
states in connection with the exercisability of the Rights.
Notwithstanding any provision of this Rights Agreement to the
contrary, the Rights shall not be exercisable in any jurisdiction
unless the requisite qualification in such jurisdiction shall have
been obtained and until a registration statement under the Act (if
required) shall have been declared effective.
-22-
(e) The Company covenants and agrees that it will pay when due
and payable any and all Transfer Taxes which may be payable in
respect of the issuance or delivery of the Rights Certificates or of
any shares of Preferred Stock issued or delivered upon the exercise
of Rights. The Company shall not, however, be required to pay any
Transfer Tax which may be payable in respect of any transfer or
delivery of a Rights Certificate to a Person other than, or the
issuance or delivery of certificates for Preferred Stock upon
exercise of Rights in a name other than that of, the registered
holder of the Rights Certificate, and the Company shall not be
required to or issue or deliver a Rights Certificate or certificate
for Preferred 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 Company's
satisfaction that no such Transfer Tax is due.
Section 10. Preferred Stock Record Date. Each Person in
whose name any certificate for shares of Preferred Stock is issued upon the
exercise of Rights shall for all purposes be deemed to have become
the holder of record of the Preferred 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 Preferred Stock transfer books of
the Company are closed, such Person shall be deemed to have become
the record holder of such shares on, and such certificate shall be
dated as of, the next succeeding Business Day on which the Preferred
Stock transfer books of the Company 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
Company with respect to shares for which the Rights shall be
exercisable, including, without
-23-
limitation, the right to vote, to receive dividends or other distributions
or to exercise any preemptive rights, and shall not be entitled to receive
any notice of any proceedings of the Company, except as provided herein.
Section 11. Adjustment of Exercise Price or Number of
Shares. The Exercise Price and the number of shares of Preferred 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 Company shall at any time after
the date of this Rights Agreement (A) declare or pay any
dividend on Common Stock payable in shares of Common
Stock, (B) subdivide or split the outstanding shares of
Common Stock into a greater number of shares or (C)
combine or consolidate the outstanding shares of Common
Stock into a smaller number of shares or effect a reverse
split of the outstanding shares of Common Stock, then and
in each such event the number of shares of Preferred Stock
issuable upon the exercise of a Right after the record
date for such event (if one shall have been established
or, if not, after the date of such event) shall be the
number of shares of Preferred Stock 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)
-24-
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, except
pursuant to a Qualifying Tender Offer 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 one one-hundredths of a share of
Preferred Stock for which such Right was exercisable
immediately prior to the first occurrence of the event
described in this Section 11(a)(ii) or (2) such number of
one onehundredths of a share of Preferred Stock as shall
equal the result obtained by dividing the Exercise Price by
50% of the Fair Market Value of one one-hundredth of a share
of Preferred 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 Company does not have
available sufficient authorized but unissued Preferred
Stock to permit the adjustments required pursuant to the
foregoing subparagraph (i) or the exercise in full of the
Rights in
-25-
accordance with the foregoing subparagraph (ii),
the Company shall take all such actions as may be
necessary to authorize and reserve for issuance such
number of additional shares of Preferred Stock as may from
time to time be required to be issued upon the exercise in
full of all Rights from time to time outstanding and, if
necessary, shall use its best efforts to obtain
stockholder approval thereof. In lieu of issuing shares
of Preferred Stock in accordance with the foregoing
subparagraphs (i) and (ii), the Company may, if its Board
of Directors determines that such action is necessary or
appropriate and not contrary to the interests of holders
of Rights, elect to issue or pay, upon the exercise of the
Rights, (A) cash, (B) other equity securities of the
Company, (C) debt securities of the Company, (D) other
assets or (E) any combination of the foregoing, in each
case, having an aggregate Fair Market Value equal to the
Fair Market Value of the shares of Preferred 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 Company's Board
of Directors. For purposes of the preceding sentence, the
Fair Market Value of the Preferred 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 Company 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 Preferred Stock, Common Stock or any other stock
or any Right or other security or any other property on any date shall be
determined as provided in this Section 11(b). In the case of a
-26-
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 but not including 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 but not
including (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 Company to take into account ex-dividend
or post-effective date trading. The closing price for any day shall
be the last sale price, regular way, or, in case no such sale takes
place on such day, the average of the closing bid and asked prices,
regular way (in either case, as reported in the applicable
transaction reporting system with respect to securities listed or
admitted to trading on the New York Stock Exchange), or, if the
securities are not listed or admitted to trading on the New York
Stock Exchange, as reported in the applicable transaction reporting
system with respect to securities listed on the principal national
securities exchange on which such security is listed or admitted to
trading; or, if not listed or admitted to trading on any national
securities exchange, the last quoted price (or, if not so quoted,
the average of the high bid and low asked prices) in the over-the-
counter market, as reported by NASDAQ or such other system then in
use; or, if no bids for such security are quoted by any such
organization, the average of the closing bid and asked prices as
furnished by a professional market maker making a market in such
security selected by the Board of Directors of the Company. The term
"Trading Day" shall mean a day on which the principal national securities
exchange on which such security is listed
-27-
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
Company, or, if no such investment banking firm is, in the good
faith judgment of the Company's Board of Directors, available to
make such determination, in good faith by the Board of Directors of
the Company; 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 Preferred Stock shall not be less than 100% of
the product of the Fair Market Value of a share of Common Stock
multiplied by the higher of the then Dividend Multiple or Vote
Multiple applicable to the Preferred Stock (as defined in the
provisions of the Certificate of Designations relating to the
Preferred Stock) and shall not exceed 105% of the product of the
then Fair Market Value of a share of Common Stock multiplied by the
higher of the then Dividend Multiple or Vote Multiple applicable to
the Preferred Stock. In the case of property other than securities,
the "Fair Market Value" thereof shall be determined in good faith by
the Board of Directors of the Company based upon such appraisals or
valuation reports of such independent experts as the Board of
Directors of the Company 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-hundredth of a share, as the
case may be.
-28-
(d) Irrespective of any adjustment or change in the Exercise
Price or the number of shares of Preferred 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 Preferred Stock upon
exercise of the Rights below the then par value, if any, of the shares of
Preferred Stock, the Company shall use its best efforts to take any
corporate action which may, in the opinion of its counsel, be
necessary in order that the Company may validly and legally issue
fully paid and non-assessable shares of such Preferred 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 Company or any
recapitalization, reorganization or partial liquidation of the
Company or similar transaction, the Company shall be entitled to
make such further adjustments in the number of shares of Preferred
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 Company 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 such adjustment, in the opinion of
counsel to the Company, result in the stockholders of the Company
being subject to any United States federal income tax liability by
reason thereof.
-29-
(g) In the event the Company shall at any time after the
Record Date make any distribution on the shares of Common Stock of
the Company, whether by way of a dividend or a reclassification of
stock, a recapitalization, reorganization or partial liquidation of
the Company or otherwise, in cash or any 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
Company 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 Company in the 15-month period
immediately preceding such distribution, then and in each such
event, unless such distribution is part of or is made in connection
with a transaction to which Section 11(a)(ii) or Section 13 hereof
applies, the Exercise Price shall be reduced by an amount equal to
the cash or the Fair Market Value of such distribution, as the case
may be, per share of Common Stock of the Company. For purposes
hereof, the Fair Market Value of any property distributed to the
holders of shares of Common Stock of the Company 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 Company, or, if no
such investment banking firm is in the good faith judgment of the
Board of Directors of the Company available to make such
determination, in good faith by the Board of Directors of the
Company, whose determination shall be final and binding on the
Company, the Rights Agent and the holders of Rights.
-30-
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 Company shall (a) promptly prepare a
certificate setting forth such adjustment, and a brief statement of
the facts and computations giving rise to such adjustment, (b)
promptly file with the Rights Agent and with each transfer agent for
the Preferred Stock a copy of such certificate and (c) mail a brief
summary thereof to each holder of a Rights Certificate in accordance
with Section 25. Notwithstanding the foregoing sentence, the
failure of the Company to make such certification or give such
notice shall not affect the validity of or the force or effect of
the requirement for such adjustment. Any adjustment to be made
pursuant to Section 11, 13 or 23(c) of this Rights Agreement shall
be effective as of the date of the event giving rise to such
adjustment. The Rights Agent shall be fully protected in relying on
any such certificate and on any adjustment therein contained and
shall have no duty with respect to 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 Company 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
Company 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 Company, and the Company shall be the
continuing or surviving corporation of such consolidation or merger
and, in connection with such consolidation or merger, all or part of
the outstanding shares of Common Stock shall be changed
-31-
into or
exchanged for stock or other securities of any other Person (other
than an Exempt Person) or of the Company or cash or any other
property, or (z) the Company or one or more of its Subsidiaries
shall, directly or indirectly, sell or otherwise transfer to any
other Person or any Affiliate or Associate of such Person, in one or
more transactions, or the Company or one or more of its Subsidiaries
shall sell or otherwise transfer to any Persons in one or a series
of related transactions, assets or earning power aggregating more
than 50% of the assets or earning power of the Company and its
Subsidiaries (taken as a whole), 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 Company pursuant to this
Rights Agreement; (iii) the term "Company" or "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
Preferred 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;
-32-
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 Company 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 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
-33-
does survive the merger or
consolidation (including the Company if it survives); and
(ii) in the case of any transaction described in (z) of
the first sentence in Section 13(a), the Person that is the
party receiving the greatest portion of the assets or earning
power transferred pursuant to such transaction or transactions,
or, if each Person that is a party to such transaction or
transactions receives the same portion of the assets or earning
power so transferred or if the Person receiving the greatest
portion of the assets or earning power cannot be determined,
whichever of such Persons as is the issuer of Common Stock
having the greatest 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 Company shall not consummate any consolidation, merger
or sale or transfer of assets or earning power referred to in
Section 13(a) unless the Principal Party shall have a sufficient
number of authorized shares of its Common Stock that have not been
issued or reserved for issuance to permit exercise in full of all
Rights in accordance with this Section 13
-34-
and unless prior thereto
the Company and the Principal Party involved therein shall have
executed and delivered to the Rights Agent an agreement confirming
that the Principal Party shall, upon consummation of such
consolidation, merger 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;
(ii) use its best efforts to list (or continue the listing
of) the Rights and the securities purchasable upon
exercise of the Rights on a national securities exchange
or to meet the eligibility requirements for quotation on
NASDAQ; and
(iii) deliver to holders of the Rights historical
financial statements for the Principal Party which comply
in all respects with the requirements for registration on
Form 10 (or any successor form) under the Exchange Act.
In the
-35-
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 Company shall not consummate any such transaction
unless prior thereto the Company and such Principal Party shall have
executed and delivered to the Rights Agent a supplemental agreement
providing that the provision in question of such Principal Party
shall have been 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.
-36-
Section 14. Fractional Rights and Fractional Shares.
(a) The Company 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 one-
hundredth of a share of Preferred Stock), unless such fractional
Rights result from a transaction referred to in Section 11(a)(i)
hereof. If the Company 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 Company shall not be required to issue fractions of shares
of Preferred Stock (other than fractions which are integral multiples
of onehundredth of a share) upon exercise of the Rights or to
distribute certificates which evidence fractional shares (other than
fractions which are integral multiples of one-hundredth of a share).
In lieu of issuing fractions of shares of Preferred Stock, the
Company may, at its election, issue depositary receipts evidencing
fractions of shares pursuant to an appropriate agreement between the
Company and a depositary selected by it, PROVIDED that such
agreement shall provide that the holders of such depositary receipts
shall have all of the rights, privileges and preferences to which
they would be entitled as owners of the Preferred Stock. With
respect to fractional shares that are not integral multiples of one-
hundredth of a share, if the Company does not issue such fractional
shares or depositary receipts in lieu thereof, there shall be paid
to the holders of record of 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 Preferred
Stock.
-37-
(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 Preferred Stock (other than fractions which are
integral multiples of one one-hundredth of a share) upon exercise of
a Right. The Rights Agent shall have no duty or obligation under
this Section or under any other Section of this Rights Agreement
dealing with fractional shares unless and until the Company has
provided the Rights Agent with written notification of what action
it proposes to take with respect to such fractional shares and has
provided or caused to be provided to the Rights Agent sufficient
depositary receipt or cash necessary to satisfy the Company's
obligations with respect to fractional shares.
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 Company 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 this Rights
-38-
Agreement, 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 Company
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 an office of the Rights Agent designated for such
purpose, duly endorsed or accompanied by a proper instrument of
transfer;
(c) The Company and the Rights Agent may deem and treat the Person
in whose name the 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 Company or the Rights
Agent) for all purposes whatsoever, and neither the Company nor the
Rights Agent shall be affected by any notice to the contrary.
-39-
(d) Notwithstanding anything in this Rights Agreement to the
contrary, neither the Company 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, judgment
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
Company 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 Preferred 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 Company or any right
to vote for the election of directors or upon any matter submitted
to stockholders at any meeting thereof or to give or
-40-
withhold
consent to any corporate action or to receive notice of meetings or
other actions affecting stockholders (except as provided in Sections
24 and 25 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 Company agrees to pay to the Rights Agent reasonable
compensation for all services rendered by it hereunder and, from
time to time, on demand of the Rights Agent, its reasonable expenses
and counsel fees and other disbursements incurred in the
preparation, execution, delivery, amendment and administration of
this Rights Agreement and the exercise and performance of its duties
hereunder. The Company also agrees to indemnify the Rights Agent
for, and to hold it harmless against, any loss, liability, damage,
judgment, fine, penalty, claim, demand, settlement, cost or expense,
incurred without gross negligence, bad faith or willful misconduct
(each as may be finally determined by a court of competent
jurisdiction) on the part of the Rights Agent, for any action taken,
suffered or omitted to be taken by the Rights Agent in connection
with the acceptance and administration of this Rights Agreement,
including without limitation the costs and expenses of defending
against any claim of liability relating to the Rights or this Rights
Agreement. The indemnity provided herein shall survive the
termination of this Agreement and the termination and the expiration
of the Rights. The costs and expenses incurred in enforcing this
right of indemnification shall be paid by the Company. Any
liability of the Rights Agent under this Rights Agreement will be
limited to the amount of fees paid by the Company to the Rights
Agent. Anything to the contrary notwithstanding, in no event shall
the Rights Agent be liable for special, indirect, punitive,
consequential or incidental
-41-
loss or damage of any kind whatsoever
(including but not limited to lost profits), even if the Rights
Agent has been advised of the likelihood of such loss or damage.
(b) The Rights Agent shall be protected against, and shall
incur no liability for or in respect of, any action taken, suffered
or omitted by it in connection with its acceptance and
administration of this Rights Agreement in reliance upon any Rights
Certificate or certificate for Preferred Stock or for other
securities of the Company, instrument of assignment or transfer,
power of attorney, endorsement, affidavit, letter, notice,
direction, consent, certificate, statement or other paper or
document believed by it to be genuine and to be signed, executed
and, where necessary, verified or acknowledged, by the proper person
or persons.
Section 19. Merger or Consolidation of, or Change in Name
of, the Rights Agent.
(a) Any Person into which the Rights Agent or any successor
Rights Agent may be merged or with which it may be consolidated, or
any Person resulting from any merger or consolidation to which the
Rights Agent or any successor Rights Agent shall be a party, or any
Person succeeding to the 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 Person 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
-42-
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 only the duties and obligations expressly imposed by this
Rights Agreement upon the following terms and conditions, by all of
which the Company and the holders of Rights Certificates by their
acceptance thereof shall be bound:
(a) The Rights Agent may consult with legal counsel (who may be
legal counsel for the Company), and the advice or opinion of such counsel
shall be full and complete authorization and protection to the
Rights Agent and the Rights Agent shall incur no liability for or in
respect of, any action taken, suffered or omitted by it in good
faith and in accordance with such advice or 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 (including, without
-43-
limitation,
the identity of any Acquiring Person and the determination of Fair
Market Value) be proved or established by the Company prior to
taking, suffering or omitting to take 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 Vice President and by the Treasurer or the
Secretary of the Company and delivered to the Rights Agent. Any
such certificate shall be full authorization and protection to the
Rights Agent and the Rights Agent shall incur no liability for or in
respect of, any action taken, suffered or omitted by it in good
faith under the provisions of this Rights Agreement in reliance upon
such certificate.
(c) The Rights Agent shall be liable hereunder to the Company
and any other Person only for its own gross 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 Company only.
(e) The Rights Agent shall not be under any responsibility in
respect of the validity of this Rights Agreement or the execution and
delivery hereof (except the due execution hereof by the Rights Agent) or in
respect of the validity or execution of any Rights Certificate
(except its countersignature thereof); nor shall it be responsible
for any breach by the Company of any covenant or condition contained
in this Rights Agreement or in any 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
-44-
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
Preferred Stock to be issued pursuant to this Rights Agreement or
any Rights Certificate or as to whether any shares of Preferred
Stock will, when issued, be validly authorized and issued, fully
paid and nonassessable.
(f) The Company agrees that it will perform, execute,
acknowledge and deliver or cause to be performed, executed,
acknowledged and delivered all such further and other acts,
instruments and assurances as may reasonably be required by the
Rights Agent for the carrying out or performing by the Rights Agent
of the provisions of 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 Vice
President or the Secretary or the Treasurer of the Company, and to
apply to such officers for advice or instructions in connection with
its duties, and it shall not be liable for any action taken or suffered
to be taken by it in good faith in accordance with instructions of any
such officer.
(h) The Rights Agent and any shareholder, affiliate, director,
officer or employee of the Rights Agent may buy, sell or deal in any
of the Rights or other securities of the Company or become
financially interested in any transaction in which the Company may
be interested, or contract with or lend money to the Company or
otherwise act as fully and freely as
-45-
though it were not the Rights
Agent under this Rights Agreement. Nothing herein shall preclude
the Rights Agent from acting in any other capacity for the Company
or for any other Person.
(i) The Rights Agent may execute and exercise any of the
rights or powers hereby vested in it or perform any duty hereunder
either itself or by or through its attorneys or agents, and the
Rights Agent shall not be answerable or accountable for any act,
default, neglect or misconduct of any such attorneys or agents or
for any loss to the Company resulting from any such act, default,
neglect or misconduct, absent gross negligence, bad faith or willful
misconduct in the selection and continued employment thereof.
(j) No provision of this Rights Agreement shall require the Rights
Agent to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder or in
the exercise of its rights if it believes that repayment of such
funds or adequate indemnification against such risk or liability is
not assured to it.
Section 21. Change of Rights Agent. The Rights Agent or any
successor Rights Agent may resign and be discharged from its duties under
this Rights Agreement upon 30 days notice in writing mailed to the
Company and to each transfer agent of the Common Stock and the
Preferred Stock by registered or certified mail. The Company may
remove the Rights Agent or any successor Rights Agent (with or
without cause) upon 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 and the Preferred Stock by
registered or certified mail. If the Rights Agent shall resign or
be removed or shall otherwise become incapable of acting, the
Company shall appoint a successor to the Rights Agent.
Notwithstanding the foregoing provisions of this Section 21, in no
event shall the resignation or removal of a Rights Agent be
effective until a
-46-
successor Rights Agent shall have been appointed
and have accepted such appointment. If the Company shall fail to
make such appointment within a period of 30 days after such removal
or after it has been notified in writing of such resignation or
incapacity by the resigning or incapacitated Rights Agent or by the
holder of a Rights Certificate (who shall, with such notice, submit
his Rights Certificate for inspection by the Company), 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 Company or by such a court, shall be (a) a
Person organized and doing business under the laws of the United
States or of any state thereof, in good standing, which is subject
to supervision or examination 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 Person described in clause (a) of this sentence.
After appointment, the successor Rights Agent shall be vested with
the same powers, rights, duties and responsibilities as if it had
been originally named as Rights Agent without further act or deed,
but the predecessor Rights Agent shall deliver and transfer to the
successor Rights Agent any property at the time held by it
hereunder, and execute and deliver any further assurance,
conveyance, act or deed necessary for the purpose. Not later than
the effective date of any such appointment, the Company shall file
notice thereof in writing with the predecessor Rights Agent and each
transfer agent of the Common Stock and Preferred 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 Company
shall have the authority to act as the Rights
-47-
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 Company may, at its option, issue
new Rights Certificates evidencing Rights in such form as may be
approved by the Board of Directors of the Company to reflect any
adjustment or change in the Exercise Price per share and the 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 Company may, at its option, but only by the vote of a
majority of its 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 Company as provided in
Section 26 hereof) or (ii) the Expiration Date, at a redemption
price of $0.01 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 Company'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 of the Company
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
-48-
action of the Board
of Directors of the Company ordering the redemption of the Rights,
the Company shall give notice of such redemption to the holders of
the then outstanding Rights by mailing such notice to all such
holders at their last addresses as they appear upon the registry
books of the Rights Agent or, prior to the Distribution Date, on the
registry books of the transfer agent for the Common Stock. Any
notice which is mailed in the manner herein provided shall be deemed
given, whether or not the holder receives 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 Company's Board
of Directors, the Redemption Price may be paid in cash to each
Rights holder or by the issuance of shares (and, at the Company's
election pursuant to Section 14(b) hereof, cash or depositary
receipts in lieu of fractions of shares other than fractions which
are integral multiples of one one-hundredth (1/100) of a share) of
Preferred Stock or Common Stock having a Fair Market Value equal to
such cash payment.
(c) In the event the Company shall at any time after the date
of this Rights Agreement (A) pay any dividend on Common Stock in
shares of Common Stock, (B) subdivide or split the outstanding
shares of Common Stock into a greater number of shares or (C)
combine or consolidate the outstanding shares of Common Stock into a
smaller number of shares or effect a reverse split of the
outstanding shares of Common Stock, 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 Company is the continuing or
surviving corporation), then, and in each such event, the Redemption
Price shall be appropriately adjusted to reflect the foregoing.
-49-
Section 24. Notice of Proposed Actions.
(a) In case the Company, after the Distribution Date, shall
propose (i) to effect any of the transactions referred to in Section
11(a)(i) or 11(g) or (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 shares of
stock of any class or any other securities, options, warrants,
convertible or exchangeable securities or other rights, or (iii) to
effect any reclassification of its Preferred Stock or Common Stock
or any recapitalization or reorganization of the Company, or (iv) to
effect any consolidation or merger with or into, or to effect any
sale or other transfer (or to permit one or more of its Subsidiaries
to effect any sale or other transfer), in one or more transactions,
of more than 50% of the assets or earning power of the Company and
its Subsidiaries (taken as a whole) to, any other Person or Persons,
or (v) to effect the liquidation, dissolution or winding up of the
Company, then, in each such case, the Company shall give to each
holder of record of a 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 or
Preferred Stock, if any such date is to be fixed, and such notice
shall be so given in the case of any action covered by clause (i) or
(ii) above at least 10 days prior to the record date for determining
holders of record of the Preferred Stock for purposes of such
action, and in the case of any such other action, at least 10 days
prior to the date of the taking of such proposed action or the date
of participation therein by the holders of record
-50-
of Common Stock or
Preferred 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
Company 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 Company shall give to the Rights Agent and 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 the Rights Agent and 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 Company
shall be sufficiently given or made if sent by first-class mail,
postage prepaid, addressed (until another address is filed in
writing with the Rights Agent) as follows:
Minerals Technologies Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
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
Company 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 Company) as follows:
-▇▇-
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Services, L.L.C.
▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Relationship Manager
Notices or demands authorized by this Rights Agreement to be given
or made by the Company or the Rights Agent to the holder of record
of any 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 Company.
Section 26. Supplements and Amendments. For as long as the
Rights are then redeemable, the Company may in its sole and absolute
discretion, and, subject to the provisions of this Section, the
Rights Agent shall if the Company so directs, supplement or amend
any provision of this Rights Agreement without the approval of any
holders of the Rights. At any time when the Rights are not then
redeemable, the Company may, and subject to the provisions of this
Section, the Rights Agent shall if the Company 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 Company 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 Company which states that the proposed
supplement or amendment is in compliance with the terms of this
Section 26 and provided that such amendment or supplement does not
change or increase the Rights Agent's duties, liabilities or
obligations, the Rights Agent shall execute such supplement or
amendment. This Agreement may be amended or supplemented at any
time with the approval of a majority of the registered holders of
the Right
-52-
Certificates (and, prior to the Distribution Date, the
Common Stock). Notwithstanding anything contained in this Rights
Agreement to the contrary, no supplement or amendment shall be made
which changes the Redemption Price or the Expiration Date and
supplements or amendments may be made after the time that any Person
becomes an Acquiring Person (other than pursuant to a Qualifying
Tender Offer) only if such supplement or amendment is approved by
the Company's Board of Directors.
Section 27. Exchange.
(a) The Board of Directors of the Company may, at its option,
at any time after any Person becomes an Acquiring Person, exchange
all or part of the then outstanding and exercisable Rights (which
shall not include Rights that have become null and 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 Company's 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 Company 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 the holders 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
-53-
Exchange Ratio. The Company shall promptly give public notice
of any such exchange (with prompt written notice thereof to the
Rights Agent); PROVIDED, HOWEVER, that the failure to give, or any
defect in, such notice shall not affect the validity of such
exchange. The Company promptly shall mail a notice of any such
exchange to all of the holders of such Rights at their last
addresses as they appear upon the registry books of the Rights
Agent. 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 null and void pursuant to the
provisions of Section 7(e) hereof) held by each holder of Rights.
(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 Company 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 Company 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 Company
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
-54-
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 Company or the
Rights Agent shall bind and inure to the benefit of their respective
successors and assigns hereunder.
Section 29. Benefits of this Rights Agreement. Nothing in
this Rights Agreement shall be construed to give to any Person or
corporation other than the Company, 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 Company, 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. Delaware 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 Delaware 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; PROVIDED, HOWEVER, that all provisions
hereof regarding the rights, duties and obligations of the Rights
Agent 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 in accordance with the laws of such State applicable to
contracts made and to be performed entirely within such state.
-55-
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.
Section 34. Determinations And Actions By The Board Of
Directors, Etc. The Board of Directors of the Company shall have the
exclusive power and authority to administer this Rights Agreement and to
exercise all rights and powers specifically granted to the Company or to
the Board of Directors of the Company, 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 Company's Board of
Directors in
-56-
good faith shall (x) be final, conclusive and binding
on the Company, the Rights Agent, the holders of the Rights and all
other parties, and (y) not subject the Company's Board of Directors
to any liability to the holders of the Rights. The Rights Agent
shall always be entitled to assume that the Company's Board of
Directors acted in good faith and shall be fully protected and incur
no liability in reliance thereon.
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.
MINERALS TECHNOLOGIES INC.
By: ----------------------------------
Name:
Title:
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
By: ----------------------------------
Name:
Title:
-57-
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.
Minerals Technologies Inc.
SUMMARY OF RIGHTS TO PURCHASE
SERIES A JUNIOR PREFERRED STOCK
On August 27, 1999, the Board of Directors of Minerals
Technologies Inc. (the "Company") declared a dividend distribution
of one preferred stock purchase right (a "Right") for each outstanding
share of Common Stock, $0.10 par value per share (the "Common Stock"),
of the Company held by stockholders of record on September 13, 1999
(the "Record Date"). Each Right entitles the registered holder to purchase
from the Company one one-hundredth (1/100) of a share of preferred stock of
the Company, designated as Series A Junior Preferred Stock (the
"Preferred Stock") at a price of $[ ] per one one-hundredth
(1/100) of a share (the "Exercise Price"). The description and
terms of the Rights are set forth in that certain Rights Agreement
(the "Rights Agreement"), effective as of September 13, 1999,
between the Company and ChaseMellon Shareholder Services, L.L.C., 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 of
the Company, become exercisable upon the close of business on the day
(the "Distribution Date") which is the
A-1
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 15%
or more of the outstanding voting stock of the Company or such
earlier or later date (not beyond the thirtieth day after the Stock
Acquisition Date) as the Board of Directors of the Company may
determine or (ii) the tenth business day (or such later date as may
be determined by the Board of Directors of the Company 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 15% or more of the Company's outstanding voting stock
(even if no shares are actually purchased pursuant to such offer).
Prior to the Distribution Date, 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 copy of this Summary of Rights. An Acquiring Person
does not include (A) the Company, (B) any subsidiary of the Company,
(C) any employee benefit plan or employee stock plan of the Company
or of any subsidiary of the Company, or any trust or other entity
organized, appointed, established or holding Common Stock for or
pursuant to the terms of any such plan or (D) any person or group
whose ownership of 15% or more of the shares of voting stock of the
Company then outstanding results solely from (i) any action or
transaction or transactions approved by the Board of Directors of
the Company before such person or group became an Acquiring Person or
A-2
(ii) a reduction in the number of outstanding shares of voting
stock of the Company pursuant to a transaction or transactions
approved by the Board of Directors of the Company (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 Company's voting
stock 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 Company includes voting stock that
trades on a "when issued" basis on a national securities exchange or
on the National Association of Securities Dealers, Inc. Automated
Quotation System ("NASDAQ").
Until the Distribution Date (or earlier redemption or expiration of
the Rights), new Common Stock certificates issued after September 13,
1999 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 Company's Direct
Registration System of any Common Stock represented by a Book-Entry
or a certificate outstanding as of September 13, 1999, 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 Company as described below, the
Rights will expire at the close of business on September 13, 2009
(the "Expiration Date") (or, if the Distribution Date shall have
occurred
A-3
before September 13, 2009, at the close of business on the
90th day following the Distribution Date).
The Preferred Stock is nonredeemable and, unless otherwise
provided in connection with the creation of a subsequent series of
preferred stock, ranks (i) junior to any other series of the
Company's preferred stock and (ii) senior to the Common Stock. The
Preferred Stock may not be issued except upon exercise of Rights.
Each share of Preferred Stock will be entitled to receive when, as
and if declared, a quarterly dividend in an amount equal to (i) 100
times the cash dividends declared on the Company's Common Stock, and
(ii) a preferential cash dividend, if any, in preference to holders
of Common Stock in an amount equal to $1.00 per share of Preferred
Stock less the per share amount of all cash dividends declared on
the Preferred Stock pursuant to clause (i) since the immediately
preceding quarterly dividend payment date. In addition, Preferred
Stock is entitled to 100 times any noncash dividends (other than
dividends payable in equity securities) declared on the Common
Stock, in like kind. In the event of the liquidation of the
Company, the holders of Preferred Stock will be entitled to receive,
for each share of Preferred Stock, a payment in an amount equal to
the greater of $1.00 per one one-hundredth of a share plus accrued
and unpaid dividends and distributions thereon or 100 times the
payment made per share of Common Stock. Each share of Preferred
Stock will have 100 votes, voting together with the Common Stock.
In the event of any merger, consolidation or other transaction in
which Common Stock is exchanged, each share of Preferred Stock will
be entitled to receive 100 times the amount received per share of
Common Stock. The rights of Preferred Stock as to dividends,
liquidation and voting are protected by anti-dilution provisions.
If the dividends accrued on the Preferred Stock for four or more
quarterly dividend periods, whether consecutive or not, shall not
have been declared and paid or irrevocably set aside for
A-4
payment,
the holders of record of the Preferred Stock of the Company of all
series (including the Preferred Stock) will have the right to elect
two members to the Company's Board of Directors.
The number of shares of Preferred 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
Company 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 Company 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 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 one one-hundredths of a share of Preferred Stock
having a
A-5
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 Company'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 Company 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 Preferred Stock (other than fractions
which are integral multiples of one one-hundredth of a share) may,
at the election of the Company, be evidenced by depositary receipts.
The Company may also issue cash in lieu of fractional shares which
are not integral multiples of one onehundredth of a share.
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 of the Company may
determine) or (ii) the Expiration Date, the Company may redeem the
Rights in whole, but not in part, at a price of $0.01 per Right (the
"Redemption Price"). Immediately upon the effective time of the
action of the Board of Directors of the Company authorizing
redemption of the Rights, the right to exercise the Rights will
terminate and the only right of the holders of Rights will be to
receive the Redemption Price.
For as long as the Rights are then redeemable, the Company 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 Company may
A-6
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 Company, including, without
limitation, the right to vote or to receive dividends.
A copy of the Rights Agreement has been filed with the Securities
and Exchange Commission as an Exhibit to the Company's report on
Form 8-K dated September [ ], 1999. A copy of the Rights Agreement
is available free of charge from the Company. This summary description
of the Rights does not purport to be complete and is qualified in its entirety
by reference to the Rights Agreement which is incorporated in this
summary description herein by reference.
A-7
EXHIBIT B
TO RIGHTS AGREEMENT
[Form of Rights Certificate]
Certificate No. W - -------------- Rights
NOT EXERCISABLE AFTER (I) SEPTEMBER 13, 2009, 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 COMPANY AND UNDER CERTAIN OTHER
CIRCUMSTANCES, AT $0.01 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 that certain Rights Agreement,
effective as of September 13, 1999 (the "Rights Agreement") between
Minerals Technologies Inc. (the "Company"), and ChaseMellon
Shareholder Services, L.L.C., (the "Rights Agent"), to purchase from
the Company 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 September 13, 2009 (or if the Distribution Date shall
have occurred before September 13, 2009, 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, in New York, NY, one one-hundredth
(1/100) of a fully paid nonassessable share of Series A Junior
Preferred Stock of
B-1
the Company (the "Preferred Stock") at a purchase
price of $[ ], 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 Preferred 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 Preferred Stock, or other property, may be acquired upon
exercise of the Rights evidenced by this Rights Certificate, as
provided in the Rights Agreement.
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 Company
and the holders of record of Rights Certificates. Copies of the
Rights Agreement are on file at the principal executive office of
the Company.
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 Preferred 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
B-2
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 Company at its
option or under certain other circumstances at a redemption price of
$0.01 per Right. No fractional shares of Preferred Stock (other
than fractions which are integral multiples of one one-hundredth
(1/100) of a share) are required to be issued upon the exercise of
any Right or Rights evidenced hereby, and in lieu thereof the
Company 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 Preferred Stock or of any other securities of the
Company which may at any time be issuable on the exercise hereof,
nor shall anything contained in the Rights Agreement or herein be
construed to confer upon the holder hereof, as such, any of the
rights of a stockholder of the Company or any right to vote for the
election of directors or upon any matter submitted to stockholders
at 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-3
WITNESS the facsimile signature of the proper officers of the
Company and its corporate seal. Dated as of ---------------, -------.
ATTEST:
----------------------------------------- By:--------------------
Secretary Title:
Countersigned:
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
By:---------------------------------------
B-4
[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 ---------------------------
--------------------------------------------------------------------
--------------------------------------------------------------------
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 withinnamed Company, with full power of substitution.
Dated: ---------------------, -------
------------------------------------
Signature
Signature Guaranteed:
B-5
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-6
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 Preferred 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
B-7
EXHIBIT C
FORM OF
AMENDED CERTIFICATE OF DESIGNATIONS
OF
SERIES A JUNIOR PREFERRED STOCK
OF
MINERALS TECHNOLOGIES INC.
Pursuant to Section 151 of the Delaware
General Corporation Law
MINERALS TECHNOLOGIES INC., a company organized and existing
under the laws of the State of Delaware (the "Company"), DOES HEREBY
CERTIFY:
1. That by resolution of the Board of Directors of the
Company dated October 26, 1992 and by a Certificate of Designations
filed in the office of the Secretary of State of Delaware on
November 12, 1992, the Company authorized the issuance of a series
of 280,000 shares of Series A Junior Participating Preferred Stock
of the Company (the "Series A Preferred Stock") and established the
voting powers, designations, preferences and relative participating
and other rights, and the qualifications, limitations or
restrictions thereof.
2. That as of the date hereof no shares of such Series A
Preferred Stock are outstanding and no shares of such Series A
Preferred Stock have been issued.
3. That pursuant to authority conferred on the Board of
Directors of the Company by its Amended and Restated Certificate of
Incorporation and the provisions of Section 151(g) of the General
Corporation Law of the State of Delaware, the Board of Directors of
the Company on August 27, 1999 adopted the following resolution
amending in their entireties the voting powers, preferences, and
relative participating, optional or other special rights of the
shares of the Series A Preferred Stock, and the qualifications,
limitations or
C-1
restrictions thereof effective upon the redemption of
the rights (the "1992 Rights") issued pursuant to the Rights
Agreement between the Company and ChaseMellon Shareholder Services,
L.L.C., as successor Rights Agent, dated October 26, 1992.
RESOLVED, that effective upon the redemption of the 1992 Rights
and pursuant to the authority conferred upon the Board of Directors
of the Company by its Amended and Restated Certificate of
Incorporation and by the provisions of Section 151(g) of the General
Corporation Law of the State of Delaware, the voting powers,
preferences and relative participating, optional or other special
rights of the Series A Junior Preferred Stock of the Company, and
the qualifications, limitations or restrictions thereof, be, and the
same hereby are, amended in their entireties to be as follows:
RESOLVED, that pursuant to the authority vested in the Board of
Directors of the Company in accordance with the provisions of its
Amended and Restated Certificate of Incorporation, a series of
Preferred Stock of the Company be, and hereby is, created and that
the designation and amount thereof and the voting powers,
preferences and relative, participating, optional or other special
rights of the shares of such series, and the qualifications,
limitations or restrictions thereof are as follows:
Section 1. Designation and Amount. The shares of such
series shall be designated as "Series A Junior Preferred Stock"
(the "Series A Junior Preferred Stock") and the number of shares
constituting such series shall be [280,000].
C-2
Section 2. Dividends and Distributions.
(A) Subject to the provisions for adjustment hereinafter set forth,
the holders of shares of Series A Junior Preferred Stock shall be
entitled to receive, when, as and if declared by the Board of
Directors of the Company out of funds legally available for the
purpose, (i) cash dividends in an amount per share (rounded to the
nearest cent) equal to 100 times the aggregate per share amount of
all cash dividends declared or paid on the Common Stock, $0.10 par
value per share, of the Company (the "Common Stock") and (ii) a
preferential cash dividend (the "Preferential Dividends"), if any,
in preference to the holders of Common Stock, on the first day of
February, May, August and November of each year (each a "Quarterly
Dividend Payment Date"), commencing on the first Quarterly Dividend
Payment Date after the first issuance of a share or fraction of a
share of Series A Junior Preferred Stock, payable in an amount
(except in the case of the first Quarterly Dividend Payment if the
date of the first issuance of Series A Junior Preferred Stock is a
date other than a Quarterly Dividend Payment date, in which case
such payment shall be a prorated amount of such amount) equal to
$1.00 per share of Series A Junior Preferred Stock less the per
share amount of all cash dividends declared on the Series A Junior
Preferred Stock pursuant to clause (i) of this sentence since the
immediately preceding Quarterly Dividend Payment Date or, with
respect to the first Quarterly Dividend Payment Date, since the
first issuance of any share or fraction of a share of Series A
Junior Preferred Stock. In the event the Company shall, at any time
after the issuance of any share or fraction of a share of Series A
Junior Preferred Stock, make any distribution on the shares of
Common Stock of the Company, whether by way of a dividend or a
reclassification of stock, a recapitalization, reorganization or
partial liquidation of the Company or otherwise, which is payable in
cash or any debt security, debt instrument, real or personal
property or any other property (other than
C-3
cash dividends subject to
the immediately preceding sentence, a distribution of shares of
Common Stock or other capital stock of the Company or a distribution
of rights or warrants to acquire any such share, including any debt
security convertible into or exchangeable for any such share, at a
price less than the Fair Market Value (as hereinafter defined) of
such share), then, and in each such event, the Company shall
simultaneously pay on each then outstanding share of Series A Junior
Preferred Stock of the Company a distribution, in like kind, of 100
times such distribution paid on a share of Common Stock (subject to
the provisions for adjustment hereinafter set forth). The dividends
and distributions on the Series A Junior Preferred Stock to which
holders thereof are entitled pursuant to clause (i) of the first
sentence of this paragraph and pursuant to the second sentence of
this paragraph are hereinafter referred to as "Dividends" and the
multiple of such cash and non-cash dividends on the Common Stock
applicable to the determination of the Dividends, which shall be 100
initially but shall be adjusted from time to time as hereinafter
provided, is hereinafter referred to as the "Dividend Multiple." In
the event the Company shall at any time after September 13, 1999 (i)
declare or pay any dividend or make any distribution on Common Stock
payable in shares of Common Stock, (ii) effect a subdivision or
split or a combination, consolidation or reverse split of the
outstanding shares of Common Stock into a greater or lesser number
of shares of Common Stock, or (iii) issue any 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 Company is the continuing or surviving corporation), then
in each such case the Dividend Multiple thereafter applicable to the
determination of the amount of Dividends which holders of shares of
Series A Junior Preferred Stock shall be entitled to receive shall
be the Dividend Multiple applicable immediately prior to such event
multiplied by a fraction the numerator of which is the number of
shares of Common
C-4
Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common Stock
that were outstanding immediately prior to such event.
(B) The Company shall declare each Dividend at the same time it
declares any cash or non-cash dividend or distribution on the Common
Stock in respect of which a Dividend is required to be paid. No cash or
non-cash dividend or distribution on the Common Stock in respect of
which a Dividend is required to be paid shall be paid or set aside
for payment on the Common Stock unless a Dividend in respect of such
dividend or distribution on the Common Stock shall be simultaneously
paid, or set aside for payment, on the Series A Junior Preferred
Stock.
(C) Preferential Dividends shall begin to accrue on
outstanding shares of Series A Junior Preferred Stock from the
Quarterly Dividend Payment Date next preceding the date of issuance
of any shares of Series A Junior Preferred Stock. Accrued but unpaid
Preferential Dividends shall cumulate but shall not bear interest.
Preferential Dividends paid on the shares of Series A Junior
Preferred Stock in an amount less than the total amount of such
dividends at the time accrued and payable on such shares shall be
allocated pro rata on a shareby-share basis among all such shares at
the time outstanding.
Section 3. Voting Rights. The holders of shares of Series A
Junior Preferred Stock shall have the following voting rights:
(A) Subject to the provisions for adjustment hereinafter set
forth, each share of Series A Junior Preferred Stock shall entitle
the holder thereof to 100 votes on all matters submitted to a vote
of the holders of the Common Stock. The number of votes which a holder
of Series A Junior Preferred Stock is entitled to cast, as the same may
be adjusted from time to time
C-5
as hereinafter provided, is hereinafter
referred to as the "Vote Multiple." In the event the Company shall at
any time after September 13, 1999, (i) declare or pay any dividend on
Common Stock payable in shares of Common Stock, (ii) effect a subdivision
or split or a combination, consolidation or reverse split of the
outstanding shares of Common Stock into a greater or lesser number
of shares of Common Stock, or (iii) issue any 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 Company is the continuing or surviving corporation), then
in each such case the Vote Multiple thereafter applicable to the
determination of the number of votes per share to which holders of
shares of Series A Junior Preferred Stock shall be entitled after
such event shall be the Vote Multiple immediately prior to such
event multiplied by a fraction the numerator of which is the number
of shares of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of Common Stock
that were outstanding immediately prior to such event.
(B) Except as otherwise provided herein, in the Amended and
Restated Certificate of Incorporation or By-Laws, the holders of shares of
Series A Junior Preferred Stock and the holders of shares of Common
Stock shall vote together as one class on all matters submitted to a
vote of stockholders of the Company.
(C) In the event that the Preferential Dividends accrued on the
Series A Junior Preferred Stock for four or more quarterly periods, whether
or not consecutive, shall not have been declared and paid or set
apart for payment, the holders of record of the Series A Junior
Preferred Stock, voting together with the holders of record of any
other series of preferred stock of the Company which shall then have
the right, expressly granted by the Amended and Restated Certificate
of Incorporation of the Company or in any resolution or resolutions
of the Board of
C-6
Directors of the Company providing for the issue of
such shares of preferred stock, to elect directors upon such a
default in the payment of dividends by the Company shall have the
right, at the next meeting of stockholders called for the election
of directors, voting together as a class, to elect two members to
the Board of Directors of the Company, which directors shall be in
addition to the number provided for pursuant to the Company's By
laws prior to such event, to serve until the next Annual Meeting and
until their successors are elected and qualified or their earlier
resignation, removal or incapacity or until such earlier time as all
accrued and unpaid Preferential Dividends upon the outstanding
shares of Series A Junior Preferred Stock shall have been paid (or
irrevocably set aside for payment) in full. The holders of shares
of Series A Junior Preferred Stock shall continue to have the right
to elect directors as provided by the immediately preceding sentence
until all accrued and unpaid Preferential Dividends upon the
outstanding shares of Series A Junior Preferred Stock shall have
been paid (or set aside for payment) in full. Such directors may be
removed and replaced by such stockholders, and vacancies in such
directorships may be filled only by such stockholders (or by the
remaining director elected by such stockholders, if there be one) in
the manner permitted by law. Subject to the foregoing, any
directors elected pursuant to this paragraph 3(C) shall be elected
annually and shall not constitute members of any Class of directors
as contemplated by of the Company's Amended and Restated Certificate
of Incorporation.
(D) Except as otherwise required by the Amended and Restated
Certificate of Incorporation or By-Laws or set forth herein, holders
of Series A Junior Preferred Stock shall have no other special
voting rights and their consent shall not be required (except to the
extent they are entitled to vote with holders of Common Stock as set
forth herein) for the taking of any corporate action.
C-7
Section 4. Certain Restrictions.
(A) Whenever Preferential Dividends or Dividends are in
arrears or the Company shall be in default of payment thereof,
thereafter and until all accrued and unpaid Preferential Dividends
and Dividends, whether or not declared, on shares of Series A Junior
Preferred Stock outstanding shall have been paid or set irrevocably
aside for payment in full, and in addition to any and all other
rights which any holder of shares of Series A Junior Preferred Stock
may have in such circumstances, the Company shall not
(i) declare or pay dividends on, make any other
distributions on, or redeem or purchase or otherwise
acquire for consideration, any shares of stock ranking
junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Junior
Preferred Stock;
(ii) declare or pay dividends on or make any other
distributions on any shares of stock ranking on a parity
as to dividends with the Series A Junior Preferred Stock,
unless dividends are paid ratably on the Series A Junior
Preferred Stock and all such parity stock on which
dividends are payable or in arrears in proportion to the
total amounts to which the holders of all such shares are
then entitled if the full dividends accrued thereon were
to be paid;
(iii) except as permitted by subparagraph (iv) of this
paragraph 4(A), redeem or purchase or otherwise acquire
for consideration shares of any stock ranking on a parity
(either as to dividends or upon liquidation, dissolution
or winding up) with the Series A Junior Preferred Stock,
provided that the Company may at any time redeem,
purchase or otherwise acquire shares of any such parity
C-8
stock in exchange for shares of any stock of the Company
ranking junior (both as to dividends and upon liquidation,
dissolution or winding up) to the Series A Junior
Preferred Stock; or
(iv) purchase or otherwise acquire for consideration any
shares of Series A Junior Preferred Stock, or any shares
of stock ranking on a parity with the Series A Junior
Preferred Stock (either as to dividends or upon
liquidation, dissolution or winding up), except in
accordance with a purchase offer made to all holders of
such shares upon such terms as the Board of Directors of
the Company, after consideration of the respective annual
dividend rates and other relative rights and preferences
of the respective series and classes, shall determine in
good faith will result in fair and equitable treatment
among the respective series or classes.
(B) The Company shall not permit any Subsidiary (as hereinafter
defined) of the Company to purchase or otherwise acquire for consideration
any shares of stock of the Company unless the Company could, under
paragraph (A) of this Section 4, purchase or otherwise acquire such
shares at such time and in such manner. A "Subsidiary" of the
Company shall mean any corporation or other entity of which
securities or other ownership interests having ordinary voting power
sufficient to elect a majority of the board of directors of such
corporation or other entity or other persons performing similar
functions are beneficially owned, directly or indirectly, by the
Company or by any corporation or other entity that is otherwise
controlled by the Company.
(C) The Company shall not issue any shares of Series A Junior
Preferred Stock except upon exercise of Rights issued pursuant to that
certain Rights Agreement effective
C-9
as of September 13, 1999, between the
Company and ChaseMellon Shareholder Services, L.L.C., as Rights
Agent, a copy of which is on file with the Secretary of the Company
at its principal executive office and shall be made available to
stockholders of record without charge upon written request therefor
addressed to said Secretary. Notwithstanding the foregoing
sentence, nothing contained in the provisions hereof shall prohibit
or restrict the Company from issuing for any purpose any series of
Preferred Stock with rights and privileges similar to, different
from, or greater than, those of the Series A Junior Preferred Stock.
Section 5. Reacquired Shares. Any shares of Series A
Junior Preferred Stock purchased or otherwise acquired by the
Company in any manner whatsoever shall be retired and canceled
promptly after the acquisition thereof. All such shares upon their
retirement and cancellation shall become authorized but unissued
shares of Preferred Stock, without designation as to series, and
such shares may be reissued as part of a new series of Preferred
Stock to be created by resolution or resolutions of the Board of
Directors of the Company.
Section 6. Liquidation, Dissolution or Winding Up. Upon any
voluntary or involuntary liquidation, dissolution or winding up of
the Company, no distribution shall be made (i) to the holders of
shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Junior
Preferred Stock unless the holders of shares of Series A Junior
Preferred Stock shall have received, subject to adjustment as
hereinafter provided, (A) $100 per share plus an amount equal to
accrued and unpaid dividends and distributions thereon, whether or
not declared, to the date of such payment or, (B) if greater than
the amount specified in clause (i)(A) of this sentence, an amount
equal to 100 times the aggregate amount to be distributed per share
to holders of Common Stock, as the same may be adjusted as
hereinafter provided and (ii) to the holders of stock ranking on a
parity upon
C-10
liquidation, dissolution or winding up with the Series A
Junior Preferred Stock, unless simultaneously therewith
distributions are made ratably on the Series A Junior Preferred
Stock and all other shares of such parity stock in proportion to the
total amounts to which the holders of shares of Series A Junior
Preferred Stock are entitled under clause (i)(A) of this sentence
and to which the holders of such parity shares are entitled, in each
case upon such liquidation, dissolution or winding up. The amount
to which holders of Series A Junior
Preferred Stock may be entitled upon liquidation, dissolution or
winding up of the Company pursuant to clause (i)(B) of the foregoing
sentence is hereinafter referred to as the "Participating
Liquidation Amount" and the multiple of the amount to be distributed
to holders of shares of Common Stock upon the liquidation,
dissolution or winding up of the Company applicable pursuant to said
clause to the determination of the Participating Liquidation Amount,
as said multiple may be adjusted from time to time as hereinafter
provided, is hereinafter referred to as the "Liquidation Multiple."
In the event the Company shall at any time after September 13, 1999
(i) declare or pay any dividend on Common Stock payable in shares of
Common Stock, (ii) effect a subdivision or split or a combination,
consolidation or reverse split of the outstanding shares of Common
Stock into a greater or lesser number of shares of Common Stock, or
(iii) issue any 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 Company is continuing or
surviving corporation), then, in each such case, the Liquidation
Multiple thereafter applicable to the determination of the
Participating Liquidation Amount to which holders of Series A Junior
Preferred Stock shall be entitled after such event shall be the
Liquidation Multiple applicable immediately prior to such event
multiplied by a fraction the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common Stock
that were outstanding immediately prior to such event.
C-11
Section 7. Certain Reclassification and Other Events.
(A) In the event that holders of shares of Common Stock of the
Company receive after September 13, 1999 in respect of their shares
of Common Stock any share of capital stock of the Company (other
than any share of Common Stock of the Company), whether by way of
reclassification, recapitalization, reorganization, dividend or
other distribution or otherwise (a "Transaction"), then, and in each
such event, the dividend rights, voting rights and rights upon the
liquidation, dissolution or winding up of the Company of the shares
of Series A Junior Preferred Stock shall be adjusted so that after
such event the holders of Series A Junior Preferred Stock shall be
entitled, in respect of each share of Series A Junior Preferred
Stock held, in addition to such rights in respect thereof to which
such holder was entitled immediately prior to such adjustment, to
(i) such additional dividends as equal the Dividend Multiple in
effect immediately prior to such Transaction multiplied by the
additional dividends which the holder of a share of Common Stock
shall be entitled to receive by virtue of the receipt in the
Transaction of such capital stock, (ii) such additional voting
rights as equal the Vote Multiple in effect immediately prior to
such Transaction multiplied by the additional voting rights which
the holder of a share of Common Stock shall be entitled to receive
by virtue of the receipt in the Transaction of such capital stock
and (iii) such additional distributions upon liquidation,
dissolution or winding up of the Company as equal the Liquidation
Multiple in effect immediately prior to such Transaction multiplied
by the additional amount which the holder of a share of Common Stock
shall be entitled to receive upon liquidation, dissolution or
winding up of the Company by virtue of the receipt in the
Transaction of such capital stock, as the case may be, all as
provided by the terms of such capital stock.
C-12
(B) In the event that holders of shares of Common Stock of the
Company receive after September 13, 1999 in respect of their shares
of Common Stock any right or warrant to purchase Common Stock
(including as such a right, for all purposes of this paragraph, any
security convertible into or exchangeable for Common Stock) at a
purchase price per share less than the Fair Market Value of a share
of Common Stock on the date of issuance of such right or warrant,
then and in each such event the dividend rights, voting rights and
rights upon the liquidation, dissolution or winding up of the
Company of the shares of Series A Junior Preferred Stock shall each
be adjusted so that after such event the Dividend Multiple, the Vote
Multiple and the Liquidation Multiple shall each be the product of
the Dividend Multiple, the Vote Multiple and the Liquidation
Multiple, as the case may be, in effect immediately prior to such
event multiplied by a fraction the numerator of which shall be the
number of shares of Common Stock outstanding immediately before such
issuance of rights or warrants
plus the maximum number of shares of Common Stock which could be
acquired upon exercise in full of all such rights or warrants and
the denominator of which shall be the number of shares of Common
Stock outstanding immediately before such issuance of rights or
warrants plus the number of shares of Common Stock which could be
purchased, at the Fair Market Value of the Common Stock at the time
of such issuance, by the maximum aggregate consideration payable
upon exercise in full of all such rights or warrants.
(C) In the event that holders of shares of Common Stock of the
Company receive after September 13, 1999 in respect of their shares
of Common Stock any right or warrant to purchase capital stock of
the Company (other than shares of Common Stock), including as such a
right, for all purposes of this paragraph, any security convertible
into or exchangeable for capital stock of the Company (other than
Common Stock), at a purchase price
C-13
per share less than the Fair
Market Value of such shares of capital stock on the date of issuance
of such right or warrant, then and in each such event the dividend
rights, voting rights and rights upon liquidation, dissolution or
winding up of the Company of the shares of Series A Junior Preferred
Stock shall each be adjusted so that after such event each holder of
a share of Series A Junior Preferred Stock shall be entitled, in
respect of each share of Series A Junior Preferred Stock held, in
addition to such rights in respect thereof to which such holder was
entitled immediately prior to such event, to receive (i) such
additional dividends as equal the Dividend Multiple in effect
immediately prior to such event multiplied, first, by the additional
dividends to which the holder of a share of Common Stock shall be
entitled upon exercise of such right or warrant by virtue of the
capital stock which could be acquired upon such exercise and
multiplied again by the Discount Fraction (as hereinafter defined)
and (ii) such additional voting rights as equal the Vote Multiple in
effect immediately prior to such event multiplied, first, by the
additional voting rights to which the holder of a share of Common
Stock shall be entitled upon exercise of such right or warrant by
virtue of the capital stock which could be acquired upon such
exercise and multiplied again by the Discount Fraction and (iii)
such additional distributions upon liquidation, dissolution or
winding up of the Company as equal the Liquidation Multiple in
effect immediately prior to such event multiplied, first, by the
additional amount which the holder of a share of Common Stock shall
be entitled to receive upon liquidation, dissolution or winding up
of the Company upon exercise of such right or warrant by virtue of
the capital stock which could be acquired upon such exercise and
multiplied again by the Discount Fraction. For purposes of this
paragraph, the "Discount Fraction" shall be a fraction the numerator
of which shall be the difference between the Fair Market Value of a
share of the capital stock subject to a right or warrant distributed
to holders of shares of Common Stock of the Company as contemplated
by this paragraph immediately after the distribution
C-14
thereof and the
purchase price per share for such share of capital stock pursuant to
such right or warrant and the denominator of which shall be the Fair
Market Value of a share of such capital stock immediately after the
distribution of such right or warrant.
(D) For purposes of this Certificate of Designations, the
"Fair Market Value" of a share of capital stock of the Company
(including a share of Common Stock) on any date shall be deemed to
be the average of the daily closing price per share thereof over the
30 consecutive Trading Days (as such term is hereinafter defined)
immediately prior to such date; PROVIDED, HOWEVER, that, in the
event that such Fair Market Value of any such share of capital 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 stock payable in shares of such stock or securities
convertible into shares of such 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 Company to take into account ex-dividend
or posteffective date trading. The closing price for any day shall
be the last sale price, regular way, or, in case, no such sale takes
place on such day, the average of the closing bid and asked prices,
regular way (in either case, as reported in the applicable
transaction reporting system with respect to securities listed or
admitted to trading on the New York Stock Exchange), or, if
the shares are not listed or admitted to trading on the New York
Stock Exchange, as reported in the applicable transaction reporting
system with respect to securities listed on the principal national
securities exchange on which the shares are listed or admitted to
trading or, if the shares are 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 the National Association of
Securities
C-15
Dealers, Inc. Automated Quotation System ("NASDAQ") or
such other system then in use, or if on any such date the shares are
not quoted by any such organization, the average of the closing bid
and asked prices as furnished by a professional market maker making
a market in the shares selected by the Board of Directors of the
Company. The term "Trading Day" shall mean a day on which the
principal national securities exchange on which the shares are
listed or admitted to trading is open for the transaction of
business or, if the shares are not listed or admitted to trading on
any national securities exchange, on which the New York Stock
Exchange or such other national securities exchange as may be
selected by the Board of Directors of the Company is open. If the
shares are not publicly held or not so listed or traded on any day
within the period of 30 Trading Days applicable to the determination
of Fair Market Value thereof as aforesaid, "Fair Market Value" shall
mean the fair market value thereof per share as determined in good
faith by the Board of Directors of the Company. In either case
referred to in the foregoing sentence, the determination of Fair
Market Value shall be described in a statement filed with the
Secretary of the Company.
Section 8. Consolidation, Merger, etc. In case the Company
shall enter into any consolidation, merger, combination or other
transaction in which the shares of Common Stock are exchanged for or
changed into other stock or securities, cash and/or any other
property, then in any such case each outstanding share of Series A
Junior Preferred Stock shall at the same time be similarly exchanged
for or changed into the aggregate amount of stock, securities, cash
and/or other property (payable in like kind), as the case may be,
for which or into which each share of Common Stock is changed or
exchanged multiplied by the highest of the Vote Multiple, the
Dividend Multiple or the Liquidation Multiple in effect immediately
prior to such event.
C-16
Section 9. Effective Time of Adjustments.
(A) Adjustments to the Series A Junior Preferred Stock
required by the provisions hereof shall be effective as of the time
at which the event requiring such adjustments occurs.
(B) The Company shall give prompt written notice to each
holder of a share of Series A Junior Preferred Stock of the effect
of any adjustment to the voting rights, dividend rights or rights
upon liquidation, dissolution or winding up of the Company of such
shares required by the provisions hereof. Notwithstanding the
foregoing sentence, the failure of the Company to give such notice
shall not affect the validity of or the force or effect of or the
requirement for such adjustment.
Section 10. No Redemption. The shares of Series A Junior
Preferred Stock shall not be redeemable at the option of the Company or
any holder thereof. Notwithstanding the foregoing sentence of this
Section, the Company may acquire shares of Series A Junior Preferred
Stock in any other manner permitted by law, the provisions hereof
and the Amended and Restated Certificate of Incorporation of the
Company.
Section 11. Ranking. Unless otherwise provided in the
Amended and Restated Certificate of Incorporation of the Company or
a Certificate of Designations relating to a subsequent series of
preferred stock of the Company, the Series A Junior Preferred Stock
shall rank junior to all other series of the Company's preferred
stock as to the payment of dividends and the distribution of assets
on liquidation, dissolution or winding up and senior to the Common
Stock.
C-17
Section 12. Amendment. The provisions hereof and the
Amended and Restated Certificate of Incorporation of the Company
shall not be amended in any manner which would adversely affect the rights,
privileges or powers of the Series A Junior Preferred Stock without, in
addition to any other vote of stockholders required by law, the affirmative
vote of the holders of two-thirds or more of the outstanding shares of
Series A Junior Preferred Stock, voting together as a single class.
IN WITNESS WHEREOF, I have executed and subscribed this
Certificate of Designations and do affirm the foregoing as true
under the penalties of perjury this -------- day of -------------, 1999.
---------------------------------
Name:
Title:
ATTEST:
---------------------------------
C-18