_________________________________________________________________
AMENDED AND RESTATED RIGHTS AGREEMENT
CERNER CORPORATION
and
UMB BANK, N.A.,
a National Banking Association
Rights Agent
Dated as of March 12, 1999
_________________________________________________________________
TABLE OF CONTENTS
Page
Section 1. Certain Definitions . . . . . . . . . . . . . . .1
Section 2. Appointment of Rights Agent . . . . . . . . . . .8
Section 3. Issue of Rights Certificates. . . . . . . . . . .8
Section 4. Form of Rights Certificates . . . . . . . . . . .9
Section 5. Countersignature and Registration . . . . . . . 10
Section 6. Transfer, Split Up, Combination and Exchange of
Rights Certificates; Mutilated, Destroyed, Lost
or Stolen Rights Certificates . . . . . . . . . 11
Section 7. Exercise of Rights; Purchase Price; Expiration
Date of Rights. . . . . . . . . . . . . . . . . 12
Section 8. Cancellation and Destruction of Rights
Certificates. . . . . . . . . . . . . . . . . . 14
Section 9. Reservation and Availability of Capital Stock . 14
Section 10. Preferred Stock Record Date . . . . . . . . . . 16
Section 11. Adjustment of Purchase Price, Number and Kind
of Shares or Number of Rights . . . . . . . . . 16
Section 12. Certificate of Adjusted Purchase Price or
Number of Shares. . . . . . . . . . . . . . . . 24
Section 13. Consolidation, Merger or Sale or Transfer of
Assets or Earning Power . . . . . . . . . . . . 24
Section 14. Fractional Rights and Fractional Shares . . . . 28
Section 15. Rights of Action. . . . . . . . . . . . . . . . 29
Section 16. Agreement of Rights Holders . . . . . . . . . . 30
Section 17. Rights Certificate Holder Not Deemed a
Stockholder . . . . . . . . . . . . . . . . . . 30
Section 18. Concerning the Rights Agent . . . . . . . . . . 31
Section 19. Merger or Consolidation or Change of Name of
Rights Agent. . . . . . . . . . . . . . . . . . 31
Section 20. Duties of Rights Agent. . . . . . . . . . . . . 32
Section 21. Change of Rights Agent. . . . . . . . . . . . . 34
Section 22. Issuance of New Rights Certificates . . . . . . 35
Section 23. Redemption and Termination. . . . . . . . . . . 35
Section 24. Exchange. . . . . . . . . . . . . . . . . . . . 36
Section 25. Notice of Certain Events. . . . . . . . . . . . 38
Section 26. Notices . . . . . . . . . . . . . . . . . . . . 38
Section 27. Supplements and Amendments. . . . . . . . . . . 39
Section 28. Successors. . . . . . . . . . . . . . . . . . . 40
Section 29. Determinations and Actions by the Board of
Directors, Etc. . . . . . . . . . . . . . . . . 40
Section 30. Benefits of this Agreement. . . . . . . . . . . 40
Section 31. Severability. . . . . . . . . . . . . . . . . . 40
Section 32. Governing Law . . . . . . . . . . . . . . . . . 41
Section 33. Counterparts. . . . . . . . . . . . . . . . . . 41
Section 34. Descriptive Headings. . . . . . . . . . . . . . 41
EXHIBIT A -- Form of Certificate of Designation,
Preferences and Rights
EXHIBIT B -- Form of Rights Certificate
AMENDED AND RESTATED RIGHTS AGREEMENT
AMENDED AND RESTATED RIGHTS AGREEMENT, dated as of March 12,
1999 (the "Agreement"), between Cerner Corporation, a Delaware
corporation (the "Company"), and UMB Bank, n.a., a national
banking association as agent (the "Rights Agent").
W I T N E S S E T H:
WHEREAS, on November 21, 1996 (the "Rights Dividend
Declaration Date"), the Board of Directors of the Company (the
"Board of Directors") authorized and declared a dividend
distribution of one Right for each share of Common Stock of the
Company outstanding at the close of business on December 2, 1996
(the "Record Date"), and has authorized the issuance of one (as
such number may hereinafter be adjusted pursuant to the
provisions of Section 11(p) hereof) Right for each share of
Common Stock issued between the Record Date (whether originally
issued or delivered from the Company's treasury) and the
Distribution Date, and, in certain circumstances provided in
Section 22 of this Agreement, after the Distribution Date, each
Right initially representing the right to purchase one
one-thousandth of a share of Preferred Stock of the Company
having the rights, powers and preferences set forth in the form
of Certificate of Designation, Preferences and Rights attached
hereto as Exhibit A, upon the terms and subject to the conditions
hereinafter set forth ("Rights");
WHEREAS, on March 12, 1999, the Board of Directors adopted
and approved the amendment and restatement of the Rights
Agreement, dated November 21, 1996 (the "Rights Agreement"), in
the form hereof;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein set forth, the parties hereby agree that
the Rights Agreement and each Right are hereby amended and
restated in their entirety as follows:
Section 1. Certain Definitions. For purposes of this
Agreement, the following terms have the meanings indicated:
(a) "Acquiring Person" shall mean collectively any
Person who or which, together with all Affiliates and
Associates of such Person, shall be the Beneficial Owner of
15% or more of the shares of Common Stock then outstanding
(other than as a result of a Qualifying Offer) or was such a
Beneficial Owner at any time after the date hereof, whether
or not such Person together with all Affiliates or
Associates of such Person continues to be the Beneficial
Owner of 15% or more of the then outstanding Common Stock.
Notwithstanding the foregoing, (A) the term "Acquiring
Person" shall not include (i) the Company, (ii) any
Subsidiary of the Company, (iii) any employee benefit plan
of the Company or of any Subsidiary of the Company, (iv) any
Person or entity organized, appointed or established by the
Company for or pursuant to the terms of any such plan, (v)
any Person together with all Affiliates and Associates of
such Person who or which becomes the Beneficial Owner of 15%
or more of the then outstanding shares of Common Stock as a
result of the acquisition of Common Stock directly from the
Company (each of (i) through (v), an "Exempted Person");
(B) no Person shall become an "Acquiring Person" as a result
of an acquisition of Common Stock by the Company which, by
reducing the number of such shares then outstanding,
increases the proportionate number of shares beneficially
owned by such Person together with all Affiliates and
Associates of such Person to 15% or more of the outstanding
Common Stock, except that if such Person, after such share
purchases by the Company, becomes the Beneficial Owner of
additional shares of Common Stock constituting 1% or more of
the then outstanding shares of Common Stock other than
pursuant to a Qualifying Offer, such Person shall be deemed
to be an "Acquiring Person"; and (C) if the Board of
Directors of the Company determines in good faith that a
Person, together with all Affiliates and Associates of such
Person, who would otherwise be an "Acquiring Person" has
become such inadvertently, and such Person, together with
all Affiliates and Associates of such Person, divests as
promptly as practicable a sufficient number of shares of
Common Stock so that such Person, together with all
Affiliates and Associates of such Person, would no longer be
an Acquiring Person, then such Person shall not be deemed to
be an "Acquiring Person." The term "outstanding," when used
with reference to a Person's Beneficial Ownership of
securities of the Company, shall mean the number of such
securities then issued and outstanding together with the
number of such securities not then actually issued and
outstanding which such Person would be deemed to
beneficially own hereunder.
(b) "Act" shall mean the Securities Act of 1933, as
amended and in effect on the date hereof.
(c) "Adjustment Shares" shall have the meaning set
forth in Section 11(a)(ii) of this Agreement.
(d) "Affiliate" shall have the meaning set forth in
Rule 12b-2 of the General Rules and Regulations under the
Exchange Act as amended and in effect on the date hereof.
(e) "Associate" shall have the meaning set forth in
Rule 12b-2 of the General Rules and Regulations under the
Exchange Act as amended and in effect on the date hereof.
(f) A Person shall be deemed the "Beneficial Owner"
of, and shall be deemed to "beneficially own," any
securities:
(i) which such Person or any of such Person's
Affiliates or Associates, directly or indirectly, has
the right to acquire (whether such right is exercisable
immediately or only after the passage of time) pursuant
to any agreement, arrangement or understanding (whether
or not in writing) or upon the exercise of conversion
rights, exchange rights, rights (other than the
Rights), warrants or options, or otherwise; provided,
however, that a Person shall not be deemed the
"Beneficial Owner" of, or to beneficially own," (A)
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) securities issuable upon exercise of
Rights at any time prior to the occurrence of a
Triggering Event, or (C) securities issuable upon
exercise of Rights from and after the occurrence of a
Triggering Event which Rights were acquired by such
Person or any of such Person's Affiliates or Associates
prior to the Distribution Date or pursuant to Section
3(a) or Section 22 hereof ("Original Rights") or
pursuant to Section 11(i) hereof in connection with an
adjustment made with respect to any Original Rights;
(ii) which such Person or any of such Person's
Affiliates or Associates, directly or indirectly, has
the right to vote or dispose of or has "beneficial
ownership" of (as determined pursuant to Rule 13d-3 of
the General Rules and Regulations under the Exchange
Act as amended and in effect on the date hereof),
including 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
security under this subparagraph (ii) as a result of an
agreement, arrangement or understanding to vote such
security if such agreement, arrangement or
understanding: (A) arises solely from a revocable proxy
given in response to a public proxy or consent
solicitation made pursuant to, and in accordance with,
the applicable provisions of the General Rules and
Regulations under the Exchange Act as amended and as in
effect on the date hereof, and (B) is not also then
reportable by such Person on Schedule 13D under the
Exchange Act (or any comparable or successor report);
or
(iii) which are beneficially owned, directly or
indirectly, by any other Person (or any Affiliate or
Associate thereof) 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 pursuant to a revocable proxy as
described in the proviso to subparagraph (ii) of this
paragraph (f)) or disposing of any voting securities of
the Company;
provided, however, that nothing in this paragraph (f) shall
cause a person engaged in business as an underwriter of
securities to be the "Beneficial Owner" of, or to
"beneficially own," any securities acquired through such
person's participation in good faith in a bona fide firm
commitment underwriting until the expiration of forty days
after the date of such acquisition. Notwithstanding
anything in this definition of Beneficial Owner to the
contrary, a Person who, prior to the Distribution Date, is a
member of the Board of Directors or an officer of the
Company or who is an Affiliate or Associate of a member of
the Board of Directors or officer of the Company (each, an
"Excluded Person") shall not be deemed to "beneficially own"
shares of Common Stock held by another Excluded Person
solely by reason of any agreement, arrangement or
understanding, written or otherwise, entered into in
opposition to any transaction or in support of a Qualifying
Offer.
(g) "Board of Directors" shall mean the Board of
Directors of the Company as constituted from time to time.
(h) "Business Day" shall mean any day other than a
Saturday, Sunday or a day on which banking institutions in
the States of Missouri or New York or the state in which the
principal office of the Rights Agent is located are
authorized or obligated by law or executive order to close.
(i) "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.
(j) "Common Stock" shall mean the common stock, par
value $.01 per share, of the Company (or in the event of a
subdivision, combination or reclassification with respect to
such shares of Common stock, the shares of Common Stock
resulting from such subdivision, combination or
reclassification), except, subject to the proviso in Section
13(b) of this Agreement, that "Common Stock" when used with
reference to any Person other than the Company shall mean
the capital stock (or other equity securities or equity
interests) of such Person with the greatest voting power to
control or direct the management of such Person, or if such
Person is a Subsidiary of another Person, the Person or
Persons which ultimately control such first-mentioned
Person.
(k) "Common Stock Equivalents" shall have the meaning
set forth in Section 11(a)(iii) of this Agreement.
(l) "Company" shall have the meaning set forth in the
introductory paragraph of this Agreement.
(m) "Current Market Price" shall have the meaning set
forth in Section 11(d).
(n) "Current Value" shall have the meaning set forth
in Section 11(a)(iii) of this Agreement.
(o) "Distribution Date" shall have the meaning set
forth in Section 3(a) of this Agreement.
(p) "Equivalent preferred stock" shall have the
meaning set forth in Section 11(b) of this Agreement.
(q) "Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended and in effect on the date hereof.
(r) "Exchange Ratio" shall have the meaning set forth
in Section 24(a) hereof.
(s) "Excluded Person" shall have the meaning set forth
in Section 1(f) of this Agreement.
(t) "Exempted Person" shall have the meaning set forth
in Section 1(a) of this Agreement.
(u) "Expiration Date" shall have the meaning set forth
in Section 7(a) of this Agreement.
(v) "Final Expiration Date" shall have the meaning set
forth in Section 7(a) of this Agreement.
(w) "Interested Stockholder" shall mean any Acquiring
Person or any Affiliate or Associate of an Acquiring Person
or any other Person in which such Acquiring Person,
Affiliate or Associate has an interest, or any other Person
acting directly or indirectly on behalf of or in concert
with any such Acquiring Person, Affiliate or Associate.
(x) "NASDAQ" shall have the meaning set forth in
Section 4(a) of this Agreement.
(y) "Original Rights" shall have the meaning set forth
in Section 1(f)(i) of this Agreement.
(z) "Person" shall mean any individual, firm,
corporation, partnership, limited liability company or other
entity.
(aa) "Preferred Stock" shall mean shares of Series A
Preferred Stock, par value $.01 per share, of the Company
(or in the event of a subdivision, combination or
reclassification with respect to such shares of Preferred
Stock, the shares of Preferred Stock resulting from such
subdivision, combination or reclassification), and, to the
extent that there is not a sufficient number of shares of
Series A Preferred Stock authorized to permit the full
exercise of the Rights, any other series of preferred stock
of the Company designated for such purpose containing terms
substantially similar to the terms of the Series A Preferred
Stock.
(bb) "Principal Party" shall have the meaning set forth
in Section 13(b) of this Agreement.
(cc) "Purchase Price" shall have the meaning set forth
in Section 4(a) of this Agreement.
(dd) "Qualifying Offer" shall mean an acquisition of
shares of Common Stock pursuant to a tender offer or an
exchange offer for all outstanding shares of Common Stock at
a price and on terms determined by at least a majority of
the members of the Board of Directors, after receiving
advice from one or more nationally recognized investment
banking firms selected by the Board of Directors, to be
(a) fair to stockholders (taking into account all factors
which the Board of Directors may deem relevant including,
without limitation, prices which could reasonably be
achieved if the Company or its assets were sold on an
orderly basis designed to realize maximum value) and
(b) otherwise in the best interests of the Company and its
stockholders (other than the Person or any Affiliate or
Associate thereof on whose behalf the offer is being made)
taking into account all factors that the Board of Directors
may deem relevant; provided, however, that (i) such
determination is made by the Board of Directors prior to the
purchase of shares under such tender offer or exchange
offer, and (ii) a majority of the members of the Board of
Directors are not Acquiring Persons or Affiliates,
Associates, nominees or representatives of an Acquiring
Person.
(ee) "Redemption Date" shall have the meaning set forth
in Section 7(a) of this Agreement.
(ff) "Redemption Price" shall have the meaning set
forth in Section 23 of this Agreement.
(gg) "Rights" shall have the meaning set forth in the
"WHEREAS" clause at the beginning of this Agreement.
(hh) "Rights Agent" shall have the meaning set forth in
the introductory paragraph of this Agreement.
(ii) "Rights Certificates" shall have the meaning set
forth in Section 3(a) of this Agreement.
(jj) "Rights Dividend Declaration Date" shall have the
meaning set forth in the "WHEREAS" clause at the beginning
of this Agreement.
(kk) "Section 11(a)(ii) Event" shall have the meaning
set forth in Section 11(a)(ii) of this Agreement.
(ll) "Section 11(a)(ii) Trigger Date" shall have the
meaning set forth in Section 11(a)(iii) of this Agreement.
(mm) "Section 13 Event" shall mean any event described
in clauses (x), (y) or (z) of Section 13(a) of this
Agreement.
(nn) "Spread" shall have the meaning set forth in
Section 11(a)(iii) of this Agreement.
(oo) "Stock Acquisition Date" shall mean the earlier of
the date of (i) the public announcement (which, for purposes
of this definition, shall include, without limitation, a
report filed under the Exchange Act) by the Company or an
Acquiring Person that an Acquiring Person has become such or
(ii) the public disclosure of facts by the Company or an
Acquiring Person indicating that an Acquiring Person has
become an Acquiring Person; provided, however, that if such
Person is determined not to have become an Acquiring Person
pursuant to Section 1(a)(C) hereof, then no Stock
Acquisition Date shall be deemed to have occurred.
(pp) "Subsidiary" shall mean, with reference to any
Person, any corporation or other Person of which an amount
of voting securities sufficient to elect at least a majority
of the directors or others having similar authority over
such corporation or other Person is beneficially owned,
directly or indirectly, by such first-named Person, or
otherwise controlled by such first-named Person.
(qq) "Substitution Period" shall have the meaning set
forth in Section 11(a)(iii) of this Agreement.
(rr) "Trading Day" shall have the meaning set forth in
Section 11(d)(i) of this Agreement.
(ss) "Transaction" shall mean any merger, consolidation
or sale of assets or earning power described in Section
13(a) hereof or any acquisition of Common Stock which,
without regard to any required approval of the Company,
would result in a Person becoming an Acquiring Person.
(tt) "Triggering Event" shall mean any Section
11(a)(ii) Event or any Section 13 Event.
(uu) "Vote" shall mean, with respect to any entity, the
ability to cast a vote at a stockholders', members' or
comparable meeting of such entity with respect to the
election of directors, managers or other members of such
entity's governing body, or the ability to cast a general
partnership or comparable vote.
(vv) "Voting Power" shall mean, with respect to any
entity as at any date, the aggregate number of Votes
outstanding as at such date in respect of such entity.
(ww) "Voting Securities" shall mean the Common Stock
and any other securities of the Company the holders of which
are ordinarily, in the absence of contingencies, entitled to
Vote, even though the right to such Vote has been suspended
by the happening of such a contingency.
SECTION 2. APPOINTMENT OF RIGHTS AGENT. The Company
hereby appoints the Rights Agent to act as agent for the Company
and the record holders of the Rights (who in accordance with
Section 3 hereof, shall prior to the Distribution Date also be
the record holders of Common Stock) in accordance with the terms
and conditions hereof, and the Rights Agent hereby accepts such
appointment. The Company may from time to time appoint such
co-Rights Agents as it may deem necessary or desirable.
SECTION 3. ISSUE OF RIGHTS CERTIFICATES.
(a) Until the earlier of (i) the Close of business on the
tenth Business Day after the Stock Acquisition Date, or (ii) the
Close of business on the tenth Business Day (or such later date
as the Board of Directors shall determine) after the date of the
earlier of commencement by any Person (other than an Exempted
Person) of, or the first public announcement of the intention of
any Person (other than an Exempted Person) to commence, a tender
or exchange offer the consummation of which would result in any
Person becoming an Acquiring Person (the earlier of (i) and (ii)
being herein referred to as the "Distribution Date"), (x) the
Rights will be evidenced (subject to the provisions of Section
3(b) of this Agreement) by the certificates for the Common Stock
registered in the names of the record holders of the Common Stock
(which certificates for Common Stock shall be deemed also to be
certificates for Rights) and not by separate certificates, and
(y) the Rights will be transferable only in connection with the
transfer of the underlying shares of Common Stock (including a
transfer to the Company); provided, however, that if a tender or
exchange offer is terminated prior to the occurrence of a
Distribution Date, then no Distribution Date shall occur as a
result of such tender or exchange offer. The Board of Directors
may defer the date set forth in clause (ii) of the preceding
sentence to a specified later date or to an unspecified later
date, each to be determined by action of the Board of Directors.
As soon as practicable after the Distribution Date, the Company
shall prepare and execute and the Rights Agent will countersign
and, at the Company's expense, send by first-class, insured,
postage prepaid mail, to each record holder of the Common Stock
as of the close of business on the Distribution Date, at the
address of such holder shown on the registry books for the Common
Stock of the Company, one or more rights certificates, in
substantially the form of Exhibit B hereto (the "Rights
Certificates"), evidencing one Right for each share of Common
Stock so held, subject to adjustment as provided herein. In the
event that an adjustment in the number of Rights per share of
Common Stock has been made pursuant to Section 11(p) hereof, at
the time of distribution of the Rights Certificates, the Company
shall make the necessary and appropriate rounding adjustments (in
accordance with Section 14(a) hereof) so that Rights Certificates
representing only whole numbers of Rights are distributed and
cash is paid in lieu of any fractional Rights. As of and after
the Distribution Date, the Rights will be evidenced solely by
such Rights Certificates.
(b) Rights shall be issued in respect of all shares of
Common Stock which are issued (whether originally issued or from
the Company's treasury) prior to the earlier of the Distribution
Date or the Expiration Date, and, in certain circumstances
provided in Section 22 of this Agreement, after the Distribution
Date. Certificates representing such shares of Common Stock
shall also be deemed to be certificates for Rights and shall bear
the following legend:
This certificate also evidences and entitles the holder
hereof to certain Rights as set forth in the Rights
Agreement between Cerner Corporation (the "Company")
and UMB Bank, n.a. (the "Rights Agent"), dated as of
November 21, 1996 (the "Rights Agreement"), the terms
of which are hereby incorporated herein by reference
and a copy of which is on file at the principal offices
of the Company. Under certain circumstances, as set
forth in the Rights Agreement, such Rights will be
evidenced by separate certificates and will no longer
be evidenced by this certificate. The Company will
mail to the holder of this certificate a copy of the
Rights Agreement, as in effect on the date of mailing,
without charge, promptly after receipt of a written
request therefor. Under certain circumstances set
forth in the Rights Agreement, Rights issued to, or
held by, any Person who is, was or becomes an Acquiring
Person or any Affiliate or Associate thereof (as such
terms are defined in the Rights Agreement), whether
currently held by or on behalf of such Person or by any
subsequent holder, may become null and void.
With respect to such certificates containing the foregoing
legend, until the earlier of the Distribution Date or the
Expiration Date, the Rights associated with the Common Stock
represented by such certificates shall be evidenced by such
certificates alone and record holders of Common Stock shall also
be the record holders of the associated Rights, and the transfer
of any of such certificates shall also constitute the transfer of
the Rights associated with the Common Stock represented by such
certificates. In the event the Company purchases or acquires any
Common Stock prior to the Distribution Date, any Rights
associated with such Common Stock shall be deemed canceled and
retired so that the Company shall not be entitled to exercise any
Rights associated with the Common Stock which are no longer
outstanding. Notwithstanding this paragraph (b), the omission of
a legend shall not affect the enforceability of any part of this
Rights Agreement or the rights of any holder of the Rights.
SECTION 4. FORM OF RIGHTS CERTIFICATES.
(a) The Rights Certificates (and the forms of election to
purchase and of assignment to be printed on the reverse thereof)
shall each be substantially in the form set forth in Exhibit B
hereto and may have such marks of identification or designation
and such legends, summaries or endorsements printed thereon as
the Company may deem appropriate and as are not inconsistent with
the provisions of this Agreement, or as may be required to comply
with any applicable law or with any rule or regulation made
pursuant thereto, or with any rule or regulation of any stock
exchange or the National Association of Securities Dealers, Inc.
Automated Quotation System ("NASDAQ") on which or with whom the
Rights may from time to time be listed or quoted, or to conform
to usage. Subject to the provisions of Section 11 and Section 22
hereof, the Rights Certificates, whenever distributed, shall
entitle the record holders thereof to purchase such number of one
one-thousandths of a share of Preferred Stock as shall be set
forth therein at the price set forth therein (such exercise price
per one one-thousandth of a share, the "Purchase Price"), but the
amount and the type of securities purchasable upon the exercise
of each Right and the Purchase Price thereof shall be subject to
adjustment as provided herein.
(b) Any Rights Certificate issued pursuant to Section 3(a)
or Section 22 hereof that represents Rights beneficially owned
by: (i) an Acquiring Person or any Associate or Affiliate of an
Acquiring Person, (ii) a transferee of an Acquiring Person (or of
any such Associate or Affiliate) who becomes a transferee after
the Acquiring Person becomes such, or (iii) a transferee of an
Acquiring Person (or of any such Associate or Affiliate) who
becomes a transferee prior to or concurrently with the Acquiring
Person becoming such and receives such Rights pursuant to either
(A) a transfer (whether or not for consideration) from the
Acquiring Person to holders of equity interests in such Acquiring
Person or to any Person with whom such Acquiring Person has any
continuing agreement, arrangement or understanding regarding the
transferred Rights or (B) a transfer which the Board of Directors
of the Company has determined is part of a plan, arrangement or
understanding which has as a primary purpose or effect avoidance
of Section 7(e) hereof, and any Rights Certificate issued
pursuant to Section 6 or Section 11 hereof upon transfer,
exchange, replacement or adjustment of any other Rights
Certificate referred to in this sentence, shall contain (to the
extent feasible) the following legend:
The Rights represented by this Rights Certificate
are or were beneficially owned by a Person who was or
became an Acquiring Person or an Affiliate or Associate
of an Acquiring Person (as such terms are defined in
the Rights Agreement). Accordingly, this Rights
Certificate and the Rights represented hereby may
become, or may have already become, null and void in
the circumstances specified in Section 7(e) of such
Agreement.
The provisions of Section 7(e) of this Agreement shall be
operative whether or not the foregoing legend is contained in any
such Rights Certificate.
SECTION 5. COUNTERSIGNATURE AND REGISTRATION.
(a) The Rights Certificates shall be executed on behalf of
the Company by its Chairman of the Board, its President or any
Vice President, either manually or by facsimile signature, and
shall have affixed thereto the Company's seal or a facsimile
thereof which shall be attested by the Secretary or an Assistant
Secretary of the Company, either manually or by facsimile
signature. The Rights Certificates shall be countersigned by an
authorized signatory of 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 of the Rights Certificates shall cease to
be such officer of the Company before countersignature by the
Rights Agent and issuance and delivery by the Company, such
Rights Certificates, nevertheless, may be countersigned by an
authorized signatory of the Rights Agent and issued and delivered
by the Company with the same force and effect as though the
person who signed such Rights Certificates had not ceased to be
such officer of the Company. Any Rights Certificates may be
signed on behalf of the Company by any person who, at the actual
date of the execution of such Rights Certificate, shall be a
proper officer of the 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, the Rights Agent will
keep or cause to be kept, at its principal office or offices
designated as the appropriate place for surrender of Rights
Certificates upon exercise or transfer, books for registration
and transfer of the Rights Certificates issued hereunder. Such
books shall show the names and addresses of the respective record
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. The Company and Rights
Agent may deem and treat the person in whose name any Rights
Certificate (or prior to the Distribution Date, the associated
Common Stock Certificate) is recorded on the books for the
registration and transfer of Rights (or, the Common Stock) as the
absolute owner thereof, for all purposes whatsoever, and neither
the Company nor the Rights Agent shall be affected by any notice
to the contrary.
SECTION 6. TRANSFER, SPLIT UP, COMBINATION AND EXCHANGE
OF RIGHTS CERTIFICATES; MUTILATED, DESTROYED,
LOST OR STOLEN RIGHTS CERTIFICATES.
(a) Subject to the provisions of Section 4(b), Section 7(e)
and Section 14 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 or Certificates
may be transferred, split up, combined or exchanged for another
Rights Certificate or Certificates, entitling the record holder
to purchase a like number of one one-thousandths of a share of
Preferred Stock (or, following a Triggering Event, Common Stock,
other securities, cash or other assets, as the case may be) as
the Rights Certificate or Certificates surrendered then entitled
such holder (or former holder in the case of a transfer) to
purchase. Any record holder desiring to transfer, split up,
combine or exchange any Rights Certificate or Certificates shall
make such request in writing in a form acceptable and delivered
to the Rights Agent, and shall surrender the Rights Certificate
or Certificates to be transferred, split up, combined or
exchanged at the office or offices of the Rights Agent designated
for such purpose. Neither the Rights Agent nor the Company shall
be obligated to take any action whatsoever with respect to the
transfer of any such surrendered Rights Certificate until the
record holder shall have completed and signed the certificate
contained in the form of assignment on the reverse side of such
Rights Certificate and shall have provided such additional
evidence of the identity of the Beneficial Owner (or former
Beneficial Owner) or Affiliates or Associates thereof as the
Company shall reasonably request. Thereupon the Rights Agent
shall, subject to Section 4(b), Section 7(e) and Section 14
hereof, 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 by the record
holder of a Rights Certificate of a sum sufficient to cover any
tax or governmental charge that may be imposed in connection with
any transfer, split up, combination or exchange of Rights
Certificates.
(b) Subject to the provisions of Section 4(b), Section 7(e)
and Section 14 hereof, upon receipt by the Rights Agent of
evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of a Rights Certificate, and, in case
of loss, theft or destruction, of indemnity or security to the
Rights Agent and the Company reasonably satisfactory to the
Rights Agent and reimbursement to the Company and the Rights
Agent of all reasonable expenses incidental thereto, and upon
surrender to the Rights Agent and cancellation of the Rights
Certificate, if mutilated, the Company will execute and deliver a
new Rights Certificate of like tenor to the Rights Agent for
countersignature and delivery to the record holder in lieu of the
Rights Certificate so lost, stolen, destroyed or mutilated.
SECTION 7. EXERCISE OF RIGHTS; PURCHASE PRICE;
EXPIRATION DATE OF RIGHTS.
(a) Subject to Section 7(e) hereof, the record holder of
any Rights Certificate may exercise the Rights evidenced thereby
(except as otherwise provided herein including, without
limitation, the restrictions on exercisability set forth in
Section 9(c), Section 11(a)(iii),Section 23(a) and Section 24(b)
hereof) in whole or in part at any time after the Distribution
Date upon surrender of the Rights Certificate, with the form of
election to purchase and the certificate on the reverse side
thereof duly executed, to the Rights Agent at the office or
offices of the Rights Agent designated for such purpose, along
with a signature guarantee and such other and further
documentation as the Rights Agent may reasonably request,
together with payment of the aggregate Purchase Price with
respect to the total number of one one-thousandths of a share of
Preferred Stock (or, following the occurrence of a Triggering
Event, Common Stock or other securities, cash or other assets, as
the case may be) as to which such surrendered Rights are then
exercisable, at or prior to the earlier of (i) the close of
business on November 21, 2006 (the "Final Expiration Date"), (ii)
the time at which the Rights are redeemed as provided in Section
23 hereof (the "Redemption Date"), (iii) the time at which such
Rights are exchanged as provided in Section 24 hereof, or (iv)
the consummation of a transaction contemplated by Section 13(d)
hereof (the earliest of (i), (ii), (iii) and (iv) being herein
referred to as the "Expiration Date").
(b) The Purchase Price for each one one-thousandth of a
share of Preferred Stock pursuant to the exercise of a Right
shall initially be $80.00, and shall be subject to adjustment
from time to time as provided in Sections 11 and 13(a) hereof and
shall be payable in accordance with paragraph (c) below.
(c) Upon receipt of a Rights Certificate representing
exercisable Rights, with the form of election to purchase and the
certificate duly executed, accompanied by payment, with respect
to each Right so exercised, of the Purchase Price per one
one-thousandth of a share of Preferred Stock (or other shares,
securities, cash or other assets, as the case may be) to be
purchased as set forth below and an amount equal to any
applicable transfer tax required to be paid by the holder of such
Rights Certificate in accordance with Section 9 hereof, the
Rights Agent shall, subject to Section 20(k) hereof, thereupon
promptly (i) (A) requisition from any transfer agent of the
shares of Preferred Stock (or make available, if the Rights Agent
is the transfer agent for such shares) certificates for the total
number of one one-thousandths of a share of Preferred Stock to be
purchased, and the Company hereby irrevocably authorizes its
transfer agent to comply with all such requests, or (B) if the
Company shall have elected to deposit the total number of shares
of Preferred Stock issuable upon exercise of the Rights hereunder
with a depositary agent, requisition from the depositary agent
depositary receipts representing such number of one
one-thousandths of a share of Preferred Stock as are to be
purchased (in which case certificates for the shares of Preferred
Stock represented by such receipts shall be deposited by the
transfer agent with the depositary agent) and the Company will
direct the depositary agent to comply with such request,
(ii) requisition from the Company the amount of cash, if any, to
be paid in lieu of fractional shares in accordance with Section
14 hereof, (iii) promptly after receipt of such certificates or
depositary receipts, cause the same to be delivered to or upon
the order of the record holder of such Rights Certificate,
registered in such name or names as may be designated by such
holder, and (iv) after receipt thereof, promptly deliver such
cash, if any, to or upon the order of the record holder of such
Rights Certificate. The payment of the Purchase Price (as such
amount may be reduced pursuant to Section 11(a)(iii) hereof)
shall be made in cash or by certified bank check or bank draft
payable to the order of the Company. In the event that the
Company is obligated to issue other securities (including Common
Stock) of the Company, pay cash and/or distribute other property
pursuant to Section 11(a) hereof, the Company will make all
arrangements necessary so that such other securities, cash and/or
other property are available for distribution by the Rights
Agent, if and when appropriate. The Company reserves the right
to require, prior to the occurrence of a Triggering Event that,
upon any exercise of Rights, a number of Rights be exercised so
that only whole shares of Preferred Stock would be issued.
(d) In case the record 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 and
delivered to, or upon the order of, the record holder of such
Rights Certificate, registered in such name or names as may be
designated by such holder, subject to the provisions of Section
14 hereof.
(e) Notwithstanding anything in this Agreement to the
contrary, from and after the first occurrence of a Section
11(a)(ii) Event, any Rights beneficially owned by (i) an
Acquiring Person or an Affiliate or Associate of an Acquiring
Person, (ii) a transferee of an Acquiring Person (or of any such
Associate or Affiliate) who becomes a transferee after the
Acquiring Person becomes such, or (iii) a transferee of an
Acquiring Person (or of any such Associate or Affiliate) who
becomes a transferee prior to or concurrently with the Acquiring
Person becoming such and receives such Rights pursuant to either
(A) a transfer (whether or not for consideration) from the
Acquiring Person to holders of equity interests in such Acquiring
Person or to any Person with whom the Acquiring Person has any
continuing agreement, arrangement or understanding regarding the
transferred Rights or (B) a transfer which the Board of Directors
has determined is part of a plan, arrangement or understanding
which has as a primary purpose or effect the avoidance of this
Section 7(e), shall become null and void without any further
action, and no record holder of such Rights shall have any rights
whatsoever with respect to such Rights, whether under any
provision of this Agreement or otherwise. The Company shall use
all reasonable efforts to ensure that the provisions of this
Section 7(e) and Section 4(b) hereof are complied with, but
neither the Rights Agent nor the Company shall have any liability
to any record holder of Rights Certificates or other Person as a
result of the Company's failure to make any determinations with
respect to an Acquiring Person or its Affiliates, Associates or
transferees hereunder. The Company may require (or cause the
Rights Agent or any transfer agent of the Company to require) any
Person who submits a Rights Certificate (or a certificate
representing shares of Common Stock that evidences, or but for
the provisions of this Section 7(e) would evidence, Rights) for
transfer on the registry books or to exercise the Rights
represented thereby to establish to the satisfaction of the
Company in its sole discretion that such Rights have not become
null and void pursuant to the provisions of this Section 7(e).
(f) Notwithstanding anything in this Agreement to the
contrary, neither the Rights Agent nor the Company shall be
obligated to undertake any action with respect to a record holder
upon the occurrence of any purported exercise as set forth in
this Section 7 unless such holder shall have (i) completed and
signed the certificate contained in the form of election to
purchase set forth on the reverse side of the 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 as the
Company shall reasonably request.
SECTION 8. CANCELLATION AND DESTRUCTION OF RIGHTS
CERTIFICATES. All Rights Certificates surrendered for the
purpose of exercise, transfer, split up, combination or exchange
shall, if surrendered to the Company or 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
Agreement. The Company shall deliver to the Rights Agent for
cancellation and retirement, and the Rights Agent shall so cancel
and retire, any other Rights Certificate purchased or acquired by
the Company otherwise than upon the exercise thereof. The Rights
Agent shall deliver a certificate of cancellation to the Company
and shall destroy such canceled Rights Certificates in accordance
with applicable law and regulations.
SECTION 9. RESERVATION AND AVAILABILITY OF CAPITAL
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 (and, following the occurrence of a
Triggering Event, out of its authorized and unissued shares of
Common Stock and/or other securities or out of its authorized and
issued shares held in its treasury), the number of shares of
Preferred Stock (and, following the occurrence of a Triggering
Event, Common Stock and/or other securities) that, as provided in
this Agreement, including Section 11(a)(iii) hereof, will be
sufficient to permit the exercise in full of all outstanding
Rights.
(b) So long as the shares of Preferred Stock (and,
following the occurrence of a Triggering Event, Common Stock
and/or other securities) issuable and deliverable upon the
exercise of the Rights may be listed on any national securities
exchange or national automated quotation system, the Company
shall use its best efforts to cause, from and after such time as
the Rights become exercisable (but only to the extent that it is
reasonably likely that the Rights will be exercised), all shares
reserved for such issuance to be listed on such exchange or
authorized to be quoted on such quotation system upon official
notice of issuance upon such exercise.
(c) The Company shall use its best efforts to (i) file, as
soon as practicable following the earliest date after the first
occurrence of a Section 11(a)(ii) Event on which the
consideration to be delivered by the Company upon exercise of the
Rights has been determined in accordance with Section 11(a)(iii)
hereof, a registration statement under the Act with respect to
the securities 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 such securities, and (B) the Expiration
Date. 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. The Company may temporarily
suspend, for a period of time not to exceed ninety (90) days
after the date set forth in clause (i) of the first sentence of
this Section 9(c), the exercisability of the Rights in order to
prepare and file such registration statement and permit it to
become effective. Upon any such suspension, the Company shall
make a public announcement, and shall give simultaneous written
notice to the Rights Agent, stating that the exercisability of
the Rights has been temporarily suspended, as well as a public
announcement at such time as the suspension is no longer in
effect. In addition, if the Company shall determine that a
registration statement is required following the Distribution
Date, the Company may temporarily suspend the exercisability of
the Rights until such time as a registration statement has been
declared effective. Notwithstanding any provision of this
Agreement to the contrary, the Rights shall not be exercisable in
any jurisdiction if the requisite qualification in such
jurisdiction shall not have been obtained, the exercise thereof
shall not be permitted under applicable law or a registration
statement shall not have been declared effective.
(d) The Company covenants and agrees that it will take all
such action as may be necessary to ensure that all one
one-thousandths of a share of Preferred Stock (and, following the
occurrence of a Triggering Event, Common Stock and/or other
securities, as the case may be) delivered upon exercise of Rights
shall, at the time of delivery of the certificates for such
shares, Common Stock, or other securities, as the case may be
(subject to payment of the Purchase Price), be duly and validly
authorized and issued, and fully paid and nonassessable
including, without limitation, effecting such changes to the
accounts of the Company as may be necessary to accomplish the
foregoing purposes.
(e) The Company further covenants and agrees that it will
pay when due and payable any and all U.S. federal and state
transfer taxes and charges which may be payable in respect of the
issuance or delivery of the Rights Certificates and of any
certificates for a number of one one-thousandths of a share of
Preferred Stock (or Common Stock or other securities, as the case
may be) upon the exercise of the 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 Rights Certificates to
a Person other than, or the issuance or delivery of certificates
or depositary receipts for a number of one one-thousandths of a
share of Preferred Stock (or Common Stock and/or other
securities, as the case may be) in respect of a name other than
that of, the record holder of the Rights Certificates evidencing
Rights surrendered for exercise or to issue or deliver any
certificates for a number of one one-thousandths of a share of
Preferred Stock (or, following the occurrence of a Triggering
Event, Common Stock or other securities, as the case may be) in a
name other than that of the record holder upon the exercise of
any Rights until such tax shall have been paid (any such 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 tax is due.
SECTION 10. PREFERRED STOCK RECORD DATE. Each person in
whose name any certificate for a number of one one-thousandths of
a share of Preferred Stock (or Common Stock and/or other
securities, as the case may be) is issued upon the exercise of
Rights shall for all purposes be deemed to have become the holder
of record of such fractional shares of Preferred Stock (or Common
Stock and/or other securities, as the case may be) represented
thereby on, and such certificate shall be dated, the date upon
which the Rights Certificate evidencing such Rights was duly
surrendered and payment of the Purchase Price (and all applicable
transfer taxes) was made; provided, however, that if the date of
such surrender and payment is a date upon which the Preferred
Stock (or Common Stock and/or other securities, as the case may
be) transfer books of the Company are closed, such Person shall
be deemed to have become the record holder of such shares
(fractional or otherwise) on, and such certificate shall be
dated, the next succeeding Business Day on which the Preferred
Stock (or Common Stock and/or other securities, as the case may
be) transfer books of the Company are open. Prior to the
exercise of the Rights evidenced thereby, the record holder of a
Rights Certificate 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 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 PURCHASE PRICE, NUMBER AND KIND
OF SHARES OR NUMBER OF RIGHTS. The Purchase Price, the number
and kind of shares covered by each 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 Agreement (A) declare a dividend on
the Preferred Stock payable in shares of Preferred Stock,
(B) subdivide the outstanding Preferred Stock, (C) combine
the outstanding Preferred Stock into a smaller number of
shares, or (D) issue any shares of its capital stock in a
reclassification of the Preferred Stock (including any such
reclassification in connection with a consolidation or
merger in which the Company is the continuing or surviving
corporation), except as otherwise provided in this Section
11(a) and Section 7(e) hereof, the Purchase Price in effect
at the time of the record date for such dividend or of the
effective date of such subdivision, combination or
reclassification, and the number and kind of shares of
Preferred Stock or capital stock, as the case may be,
issuable on such date, shall be proportionately adjusted so
that the record holder of any Right exercised after such
time shall be entitled to receive, upon payment of the
Purchase Price then in effect, the aggregate number and kind
of shares of Preferred Stock or capital stock, as the case
may be, which, if such Right had been exercised immediately
prior to such date and at a time when the Preferred Stock
transfer books of the Company were open, he would have owned
upon such exercise and been entitled to receive by virtue of
such dividend, subdivision, combination or reclassification.
If an event occurs which would require an adjustment under
both this Section 11(a)(i) and Section 11(a)(ii) hereof, the
adjustment provided for in this Section 11(a)(i) shall be in
addition to, and shall be made prior to, any adjustment
required pursuant to Section 11(a)(ii) hereof.
(ii) Subject to Section 24 hereof, in the event
any Person, alone or together with its Affiliates and
Associates, shall, at any time after the Rights Dividend
Declaration Date, become an Acquiring Person (such an event
being referred to herein as a "Section 11(a)(ii) Event"),
then, promptly following the occurrence of such Section
11(a)(ii) Event, proper provision shall be made by the
Company so that each holder of a Right (except as provided
below and in Section 7(e) hereof) shall thereafter have the
right to receive, upon exercise thereof at the then current
Purchase Price in accordance with the terms of this
Agreement, in lieu of a number of one one-thousandths of a
share of Preferred Stock, such number of shares of Common
Stock of the Company as shall equal the result obtained by
(x) multiplying the then current Purchase Price by the then
number of one one-thousandths of a share of Preferred Stock
for which a Right was exercisable immediately prior to the
first occurrence of a Section 11(a)(ii) Event, and (y)
dividing that product (which, following such first
occurrence, shall thereafter be referred to as the "Purchase
Price" for each Right and for all purposes of this
Agreement) by 50% of the Current Market Price (determined
pursuant to Section 11(d) hereof) per share of Common Stock
on the date of such first occurrence (such number of shares
being referred to as the "Adjustment Shares"); 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) Subject to such limitations existing as
of the date hereof as are necessary to prevent a default
under any agreement to which the Company is a party, in the
event that the number of shares of Common Stock which are
authorized by the Company's certificate of incorporation but
not outstanding or reserved for issuance for purposes other
than upon exercise of the Rights are not sufficient to
permit the exercise in full of the Rights in accordance with
the foregoing subparagraph (ii) of this Section 11(a), the
Company, acting by resolution of its Board of Directors
shall (A) determine the excess of (x) the value of the
Adjustment Shares issuable upon the exercise of a Right
determined as set forth below (the "Current Value"), over
(y) the Purchase Price (such excess, the "Spread"), and (B)
with respect to each Right (subject to Section 7(e) hereof),
make adequate provision to substitute for the Adjustment
Shares, upon the exercise of a Right and payment of the
applicable Purchase Price, (1) cash, (2) a reduction in the
Purchase Price, (3) Common Stock or other equity securities
of the Company (including, without limitation, shares or
units of shares of preferred stock, such as the Preferred
Stock, which the Board of Directors has deemed to have
essentially the same value or economic rights as shares of
Common Stock (such shares of preferred stock or other equity
securities being referred to as "Common Stock
Equivalents")), (4) debt securities of the Company, (5)
other assets, or (6) any combination of the foregoing,
having an aggregate value equal to the Current Value (less
the amount of any reduction in the Purchase Price), where
such aggregate value has been determined by the Board of
Directors based upon the advice of a nationally recognized
investment banking firm selected by the Board of Directors;
provided, however, that if the Company shall not have made
adequate provision to deliver value pursuant to clause (B)
above within thirty (30) days following the date on which
the Company's right of redemption pursuant to Section 23(a)
expires (such date being referred to herein as the "Section
11(a)(ii) Trigger Date"), then the Company shall be
obligated to deliver, upon the surrender for exercise of a
Right and without requiring payment of the Purchase Price
(other than an amount equal to the par value of the shares
of Common Stock to be issued), shares of Common Stock (to
the extent available) and then, if necessary, cash, which
shares and/or cash have an aggregate value equal to the
Spread. If the Board of Directors determines in good faith
that it is likely that sufficient additional shares of
Common Stock could be authorized for issuance upon exercise
in full of the Rights, the thirty (30) day period set forth
above may be extended to the extent necessary, but not more
than ninety (90) days after the Section 11(a)(ii) Trigger
Date, in order that the Company may seek stockholder
approval for the authorization of such additional shares
(such thirty (30) day period, as it may be extended, is
herein called the "Substitution Period"). To the extent
that action is to be taken pursuant to the first and/or
second sentences of this Section 11(a)(iii), the Company (1)
shall provide, subject to Section 7(e) hereof, that such
action shall apply uniformly to all outstanding Rights, and
(2) may suspend the exercisability of the Rights until the
expiration of the Substitution Period in order to seek such
stockholder approval for such authorization of additional
shares and/or to decide the appropriate form of distribution
to be made pursuant to such first sentence and to determine
the value thereof. In the event of any such suspension, the
Company shall make a public announcement and shall give
simultaneous written notice to the Rights Agent stating that
the exercisability of the Rights has been temporarily
suspended, as well as a public announcement at such time as
the suspension is no longer in effect. For purposes of this
Section 11(a)(iii), the Current Value of each Adjustment
Share shall be the Current Market Price per share of the
Common Stock on the Section 11(a)(ii) Trigger Date, and the
per share or per unit value of any Common Stock Equivalent
shall be deemed to equal the Current Market Price per share
of the Common Stock on such date.
(b) In case the Company shall fix a record date for
the issuance of rights, options or warrants to all record
holders of Preferred Stock entitling them to subscribe for
or purchase (for a period expiring within forty-five (45)
calendar days after such record date) Preferred Stock (or
shares having the same rights, privileges and preferences as
the shares of Preferred Stock ("equivalent preferred
stock")) or securities convertible into Preferred Stock or
equivalent preferred stock at a price per share of Preferred
Stock or per share of equivalent preferred stock (or having
a conversion price per share, if a security convertible into
Preferred Stock or equivalent preferred stock) less than the
Current Market Price per share of Preferred Stock on such
record date, the Purchase Price to be in effect after such
record date shall be determined by multiplying the Purchase
Price in effect immediately prior to such record date by a
fraction, the numerator of which shall be the number of
shares of Preferred Stock and equivalent preferred stock
outstanding on such record date, plus the number of shares
of Preferred Stock and equivalent preferred stock which the
aggregate offering price of the total number of shares of
Preferred Stock and/or equivalent preferred stock so to be
offered (and/or the aggregate initial conversion price of
the convertible securities so to be offered) would purchase
at such Current Market Price, and the denominator of which
shall be the number of shares of Preferred Stock and
equivalent preferred stock outstanding on such record date,
plus the number of additional shares of Preferred Stock
and/or equivalent preferred stock to be offered for
subscription or purchase (or into which the convertible
securities so to be offered are initially convertible). In
case such subscription price may be paid by delivery of
consideration part or all of which may be in a form other
than cash, the value of such consideration shall be as
determined in good faith by the Board of Directors, whose
determination shall be described in a statement filed with
the Rights Agent and shall be binding on the Rights Agent
and the holders of the Rights. Shares of Preferred Stock
and equivalent preferred stock owned by or held for the
account of the Company shall not be deemed outstanding for
the purpose of any such computation. Such adjustment shall
be made successively whenever such a record date is fixed,
and in the event that such rights or warrants are not so
issued, the Purchase Price shall be adjusted to be the
Purchase Price which would then be in effect if such record
date had not been fixed.
(c) In case the Company shall fix a record date for a
distribution to all record holders of Preferred Stock
(including any such distribution made in connection with a
consolidation or merger in which the Company is the
continuing or surviving corporation) of evidences of
indebtedness, cash (other than a regular quarterly cash
dividend out of the earnings or retained earnings of the
Company), assets (other than a dividend payable in Preferred
Stock, but including any dividend payable in stock other
than Preferred Stock) or subscription rights or warrants
(excluding those referred to in Section 11(b) hereof), the
Purchase Price to be in effect after such record date shall
be determined by multiplying the Purchase Price in effect
immediately prior to such record date by a fraction, the
numerator of which shall be the Current Market Price (as
determined pursuant to Section 11(d) hereof) per share of
Preferred Stock on such record date, less the fair market
value (as determined in good faith by the Board of
Directors, whose determination shall be described in a
statement filed with the Rights Agent and shall be binding
on the Rights Agent and the holders of the Rights) of the
portion of the cash, assets or evidences of indebtedness so
to be distributed or of such subscription rights or warrants
applicable to a share of Preferred Stock and the denominator
of which shall be such Current Market Price per share of
Preferred Stock. Such adjustments shall be made
successively whenever such a record date is fixed, and in
the event that such distribution is not so made, the
Purchase Price shall be adjusted to be the Purchase Price
which would have been in effect if such record date had not
been fixed.
(d) (i) For the purpose of any computation hereunder,
other than computations made pursuant to Section 11(a)(iii)
hereof, the "Current Market Price" per share of Common Stock
on any date shall be deemed to be the average of the daily
closing prices per share of such Common Stock for the thirty
(30) consecutive Trading Days immediately prior to such
date, and for purposes of computations made pursuant to
Section 11(a)(iii) hereof, the Current Market Price per
share of Common Stock on any date shall be deemed to be the
average of the daily closing prices per share of such Common
Stock for the ten (10) consecutive Trading Days immediately
following such date; provided, however, that in the event
that the Current Market Price per share of the Common Stock
is determined during a period following the announcement by
the issuer of such Common Stock of (A) a dividend or
distribution on such Common Stock payable in shares of such
Common Stock or securities convertible into shares of such
Common Stock (other than the Rights), or (B) any
subdivision, combination or reclassification of such Common
Stock, and the ex-dividend or ex-distribution date for such
dividend or distribution, or the record date for such
subdivision, combination or reclassification shall not have
occurred prior to the commencement of the requisite thirty
(30) Trading Day or ten (10) Trading Day period, as set
forth above, then, and in each such case, the Current Market
Price shall be properly adjusted to reflect the current
market per share equivalent. The closing price for each day
shall be the last sale price, regular way, or, in case no
such sale takes place on such day, the average of the
closing bid and asked prices, regular way, in either case as
reported in the principal consolidated transaction reporting
system with respect to securities listed or admitted to
trading on the New York Stock Exchange or, if the shares of
Common Stock are not listed or admitted to trading on the
New York Stock Exchange, as reported in the principal
consolidated transaction reporting system with respect to
securities listed on the principal national securities
exchange on which the shares of Common Stock are listed or
admitted to trading or, if the shares of Common Stock are
not listed or admitted to trading on any national securities
exchange, the last sale price, regular way, or, if such last
sale price is not reported, 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 on any
such date the shares of Common Stock are not quoted by any
such organization, the average of the closing bid and asked
prices as furnished by a professional market maker making a
market in the Common Stock selected by the Board of
Directors. If on any such date no market maker is making a
market in the Common Stock, the fair value of such shares on
such date as determined in good faith by the Board of
Directors shall be used. The term "Trading Day" shall mean
a day on which the principal national securities exchange on
which the shares of Common Stock are listed or admitted to
trading is open for the transaction of business or, if the
shares of Common Stock are not listed or admitted to trading
on any national securities exchange, a Business Day. If the
Common Stock is not publicly held or not so listed or
traded, Current Market Price per share shall mean the fair
value per share as determined in good faith by the Board of
Directors, whose determination shall be described in a
statement filed with the Rights Agent and shall be
conclusive for all purposes.
(ii) For the purpose of any computation hereunder,
the Current Market Price per share of Preferred Stock shall
be determined in the same manner as set forth above for the
Common Stock in clause (i) of this Section 11(d) (other than
the last sentence thereof). If the Current Market Price per
share of Preferred Stock cannot be determined in the manner
provided above or if the Preferred Stock is not publicly
held or listed or traded in a manner described in clause (i)
of this Section 11(d), the Current Market Price per share of
Preferred Stock shall be conclusively deemed to be an amount
equal to 1000 (as such number may be appropriately adjusted
for such events as stock splits, stock dividends and
recapitalizations with respect to the Common Stock occurring
after the date of this Agreement) multiplied by the Current
Market Price per share of the Common Stock. If neither the
Common Stock nor the Preferred Stock is publicly held or so
listed or traded, Current Market Price per share of the
Preferred Stock shall mean the fair value per share as
determined in good faith by the Board of Directors, whose
determination shall be described in a statement filed with
the Rights Agent and shall be conclusive for all purposes.
For all purposes of this Agreement, the Current Market Price
of one one-thousandth of a share of Preferred Stock shall be
equal to the Current Market Price of one share of Preferred
Stock divided by 1000.
(e) Anything herein to the contrary notwithstanding,
no adjustment in the Purchase Price shall be required unless
such adjustment would require an increase or decrease of at
least one percent (1%) in the Purchase Price; provided,
however, that any adjustments which by reason of this
Section 11(e) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment.
All calculations under this Section 11 shall be made to the
nearest cent or to the nearest hundred-thousandth of a share
of Common Stock or other share or one-millionth of a share
of Preferred Stock, as the case may be. Notwithstanding the
first sentence of this Section 11(e), any adjustment
required by this Section 11 shall be made no later than the
earlier of (i) three (3) years from the date of the
transaction which mandates such adjustment, or (ii) the
Expiration Date.
(f) If as a result of an adjustment made pursuant to
Section 11(a)(ii) or Section 13(a) hereof, the holder of any
Right thereafter exercised shall become entitled to receive
any shares of capital stock other than Preferred Stock,
thereafter the number of such other shares so receivable
upon exercise of any Right and the Purchase Price thereof
shall be subject to adjustment from time to time in a manner
and on terms as nearly equivalent as practicable to the
provisions with respect to the Preferred Stock contained in
Sections 11(a), (b), (c), (e), (g), (h), (i), (j), (k) and
(m), and the provisions of Sections 7, 9, 10, 13 and 14
hereof with respect to the Preferred Stock shall apply on
like terms to any such other shares.
(g) All Rights originally issued by the Company
subsequent to any adjustment made to the Purchase Price
hereunder shall evidence the right to purchase, at the
adjusted Purchase Price, the number of one one-thousandths
of a share of Preferred Stock purchasable from time to time
hereunder upon exercise of the Rights, all subject to
further adjustment as provided herein.
(h) Unless the Company shall have exercised its
election as provided in Section 11(i), upon each adjustment
of the Purchase Price as a result of the calculations made
in Sections 11(b) and (c), each Right outstanding
immediately prior to the making of such adjustment shall
thereafter evidence the right to purchase, at the adjusted
Purchase Price, that number of one one-thousandths of a
share of Preferred Stock (calculated to the nearest one-
millionth) obtained by (i) multiplying (x) the number of one
one-thousandths of a share covered by a Right immediately
prior to this adjustment, by (y) the Purchase Price in
effect immediately prior to such adjustment of the Purchase
Price, and (ii) dividing the product so obtained by the
Purchase Price in effect immediately after such adjustment
of the Purchase Price.
(i) The Company may elect on or after the date of any
adjustment of the Purchase Price to adjust the number of
Rights, in lieu of any adjustment in the number of one
one-thousandths of a share of Preferred Stock purchasable
upon the exercise of a Right. Each of the Rights
outstanding after the adjustment in the number of Rights
shall be exercisable for the number of one one-thousandths
of a share of Preferred Stock for which a Right was
exercisable immediately prior to such adjustment. Each
Right held of record prior to such adjustment of the number
of Rights shall become that number of Rights (calculated to
the nearest one-millionth) obtained by dividing the Purchase
Price in effect immediately prior to adjustment of the
Purchase Price by the Purchase Price in effect immediately
after adjustment of the Purchase Price. The Company shall
make a public announcement and shall give simultaneous
written notice to the Rights Agent of its election to adjust
the number of Rights, indicating the record date for the
adjustment, and, if known at the time, the amount of the
adjustment to be made. This record date may be the date on
which the Purchase Price is adjusted or any day thereafter,
but, if the Rights Certificates have been issued, shall be
at least ten (10) days later than the date of the public
announcement. If Rights Certificates have been issued, upon
each adjustment of the number of Rights pursuant to this
Section 11(i), the Company shall, as promptly as
practicable, cause to be distributed to holders of Rights
Certificates on such record date Rights Certificates
evidencing, subject to Section 14 hereof, the additional
Rights to which such holders shall be entitled as a result
of such adjustment, or, at the option of the Company, shall
cause to be distributed to such holders in substitution and
replacement for the Rights Certificates held by such holders
prior to the date of adjustment, and upon surrender thereof,
if required by the Company, new Rights Certificates
evidencing all the Rights to which such holders shall be
entitled after such adjustment. Rights Certificates so to
be distributed shall be issued, executed and countersigned
in the manner provided for herein (and may bear, at the
option of the Company, the adjusted Purchase Price) and
shall be registered in the names of the holders of record of
Rights Certificates on the record date specified in the
public announcement.
(j) Irrespective of any adjustment or change in the
Purchase Price or the number by one one-thousandths of a
share of Preferred Stock issuable upon the exercise of the
Rights, the Rights Certificates theretofore and thereafter
issued may continue to express the Purchase Price per one
one-thousandths of a share and the number of one
one-thousandths of a share which were expressed in the
initial Rights Certificates issued hereunder.
(k) Before taking any action that would cause an
adjustment reducing the Purchase Price below the then par
value, if any, of the number of one one-thousandths of a
share of Preferred Stock, or the par value, if any, of any
shares of any other capital stock issuable upon exercise of
the Rights, the Company shall 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 such number of one one-thousandths
of a share of Preferred Stock (or such other shares) at such
adjusted Purchase Price. If upon any exercise of the
Rights, a holder is to receive a combination of Common Stock
and Common Stock Equivalents, a portion of the consideration
paid upon such exercise, equal to at least the then par
value of a share of Common Stock, shall be allocated as the
payment for each share of Common Stock so received.
(l) In any case in which this Section 11 shall require
that an adjustment in the Purchase Price be made effective
as of a record date for a specified event, the Company may
elect to defer, until the occurrence of such event, the
issuance to the record holder of any Right exercised after
such record date the number of one one-thousandths of a
share of Preferred Stock and other capital stock or
securities of the Company, if any, issuable upon such
exercise over and above the number of one one-thousandths of
a share of Preferred Stock, and other capital stock or
securities of the Company, if any, issuable upon such
exercise on the basis of the Purchase Price in effect prior
to such adjustment; provided, however, that the Company
shall deliver to such holder a due ββββ or other appropriate
instrument evidencing such holder's right to receive such
additional shares (fractional or otherwise) or securities
upon the occurrence of the event requiring such adjustment.
(m) Anything in this Section 11 to the contrary
notwithstanding, the Company shall be entitled to make such
reductions in the Purchase Price, in addition to those
adjustments expressly required by this Section 11, as and to
the extent that in their good faith judgment the Board of
Directors shall determine to be advisable in order that any
(i) consolidation or subdivision of the Preferred Stock,
(ii) issuance wholly for cash of any shares of Preferred
Stock at less than the Current Market Price thereof, (iii)
issuance wholly for cash of shares of Preferred Stock or
securities which by their terms are convertible into or
exchangeable for shares of Preferred Stock, (iv) stock
dividends, or (v) issuance of rights, options or warrants
referred to in this Section 11, hereafter made by the
Company to holders of its Preferred Stock shall not be
taxable to such holders.
(n) The Company covenants and agrees that it shall
not, at any time after the Distribution Date and so long as
the Rights have not been redeemed pursuant to Section 23
hereof or exchanged pursuant to Section 24 hereof, (i)
consolidate with any other Person (other than a Subsidiary
of the Company in a transaction which complies with Section
11(o) hereof), (ii) merge with or into any other Person
(other than a Subsidiary of the Company in a transaction
which complies with Section 11(o) hereof), or (iii) sell or
transfer (or permit any Subsidiary to sell or transfer), in
one transaction, or a series of related transactions, assets
or earning power aggregating more than 50% of the assets or
earning power of the Company and its Subsidiaries (taken as
a whole) to any other Person or Persons (other than the
Company and/or any of its Subsidiaries in one or more
transactions each of which complies with Section 11(o)
hereof), if (x) at the time of or immediately after such
consolidation, merger or sale there are any certificate of
incorporation or bylaw provisions or any rights, warrants or
other instruments or securities outstanding or agreements in
effect or other actions taken which would substantially
diminish or otherwise eliminate the benefits intended to be
afforded by the Rights or (y) prior to, simultaneously with
or immediately after such consolidation, merger or sale, the
stockholders of the Person who constitutes, or would
constitute, the Principal Party for purposes of Section
13(a) hereof shall have received a distribution of Rights
previously owned by such Person or any of its Affiliates and
Associates.
(o) The Company covenants and agrees that, after the
Distribution Date, it will not, except as permitted by
Section 23, Section 24 or Section 27 hereof, take (or permit
any Subsidiary to take) any action if at the time such
action is taken it is reasonably foreseeable that such
action will diminish substantially or otherwise eliminate
the benefits intended to be afforded by the Rights.
(p) Anything in this Agreement to the contrary
notwithstanding, in the event that the Company shall at any
time after the Rights Dividend Declaration Date and prior to
the Distribution Date (i) declare or pay any dividend on the
outstanding shares of Common Stock payable in shares of
Common Stock, (ii) subdivide or split the outstanding shares
of Common Stock into a greater number of shares, or (iii)
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 Rights associated with
each share of Common Stock then outstanding, or issued or
delivered thereafter but prior to the Distribution Date,
shall be proportionately adjusted so that the number of
Rights thereafter associated with each share of Common Stock
following any such event shall equal the result obtained by
multiplying the number of Rights associated with each share
of Common Stock immediately prior to such event by a
fraction the numerator of which shall be the total number of
shares of Common Stock outstanding immediately prior to the
occurrence of the event and the denominator of which shall
be the total number of shares of Common Stock outstanding
immediately following the occurrence of such event.
SECTION 12. CERTIFICATE OF ADJUSTED PURCHASE PRICE OR
NUMBER OF SHARES. Whenever an adjustment is made as provided in
Section 11 and Section 13 hereof, the Company shall (a) promptly
prepare a certificate setting forth such adjustment and a brief
statement of the facts accounting for such adjustment, (b)
promptly file with the Rights Agent, and with each transfer agent
for the Preferred Stock and the Common Stock, a copy of such
certificate, and (c) mail a brief summary thereof to each record
holder of a Rights Certificate (or, if prior to the Distribution
Date, to each record holder of a certificate representing shares
of Common Stock) in accordance with Section 26 hereof. The
Rights Agent shall be fully protected in relying on any such
certificate and on any adjustment therein contained and shall not
be deemed to have knowledge of such adjustment unless and until
it shall have received such certificate.
SECTION 13. CONSOLIDATION, MERGER OR SALE OR TRANSFER OF
ASSETS OR EARNING POWER.
(a) In the event that, following the Stock Acquisition Date
(which for purposes of this Section 13(a) only shall also include
the date of the first public announcement (including, without
limitation, a report filed pursuant to Section 13(d) under the
Exchange Act) that any Person (other than the Company, any
Subsidiary of the Company, any employee benefit plan of the
Company or of any Subsidiary of the Company, or any Person or
entity organized, appointed or established by the Company for or
pursuant to the terms of any such plan), together with any of
such Person's Affiliates and Associates, has become the
Beneficial Owner of 15% or more of the shares of Common Stock
then outstanding pursuant to a Qualifying Offer), directly or
indirectly, (x) the Company shall consolidate with, or merge with
and into, any other Person (other than a Subsidiary of the
Company in a transaction which complies with Section 11(o)
hereof), and the Company shall not be the continuing or surviving
corporation of such consolidation or merger, (y) any Person
(other than a Subsidiary of the Company in a transaction which
complies with Section 11(o) hereof) shall consolidate with, or
merge with or 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 into or exchanged for stock or other securities of any
other Person or cash or any other property, or (z) the Company
shall sell or otherwise transfer (or one or more of its
Subsidiaries shall sell or otherwise transfer), in one
transaction or a series of related transactions, assets or
earning power aggregating more than 50% of the assets or earning
power of the Company and its Subsidiaries (taken as a whole) to
any Person or Persons (other than the Company or any Subsidiary
of the Company in one or more transactions each of which complies
with Section 11(o) hereof), then, upon the first occurrence of
such event (except as may be contemplated by Section 13(d)
hereof), proper provision shall be made so that: (i) each holder
of a Right, except as provided in Section 7(e) hereof, shall
thereafter have the right to receive, upon the exercise thereof
at the then current Purchase Price, in accordance with the terms
of this Agreement, such number of validly authorized and issued,
fully paid, non-assessable and freely tradeable shares of Common
Stock of the Principal Party (as such term is hereinafter
defined), not subject to any liens, encumbrances, rights of first
refusal or other adverse claims, as shall be equal to the result
obtained by (1) multiplying the then current Purchase Price by
the number of one one-thousandths of a share of Preferred Stock
for which a Right is exercisable immediately prior to the first
occurrence of a Section 13 Event (or, if a Section 11(a)(ii)
Event has occurred prior to the first occurrence of a Section 13
Event, multiplying the number of such one one-thousandths of a
share for which a Right was exercisable immediately prior to the
first occurrence of a Section 11(a)(ii) Event by the Purchase
Price in effect immediately prior to such first occurrence), and
dividing that product (which, following the first occurrence of a
Section 13 Event, shall be referred to as the "Purchase Price"
for each Right and for all purposes of this Agreement) by (2) 50%
of the Current Market Price (determined pursuant to Section
11(d)(i) hereof) per share of the Common Stock of such Principal
Party on the date of consummation, provided that the Purchase
Price and the number of shares of Common Stock of such Principal
Party issuable upon exercise of each Right shall be further
adjusted as provided in Section 11(f) of this Agreement to
reflect any events occurring in respect of such Principal Party
after the date of such Section 13 Event; (ii) such Principal
Party shall thereafter be liable for, and shall assume, by virtue
of such Section 13 Event, all the obligations and duties of the
Company pursuant to this Agreement; (iii) the term "Company"
shall thereafter be deemed to refer to such Principal Party, it
being specifically intended that the provisions of Section 11
hereof shall apply only to such Principal Party following the
first occurrence of a Section 13 Event; (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 connection with the consummation of any such transaction as
may be necessary to assure that the provisions hereof shall
thereafter be applicable, as nearly as reasonably may be, in
relation to its shares of Common Stock thereafter deliverable
upon the exercise of the Rights; and (v) the provisions of
Section 11(a)(ii) hereof shall be of no effect following the
first occurrence of any Section 13 Event.
(b) "Principal Party" shall mean
(i) in the case of any transaction described in clause
(x) or (y) of the first sentence of Section 13(a): (A) the
Person that is the issuer of any securities into which
shares of Common Stock of the Company are converted in such
merger or consolidation, or if there is more than one such
issuer, the issuer of the shares of Common Stock which has
the greatest aggregate market value of shares outstanding,
or (B) if no securities are so issued, (1) the Person that
is the other party to the merger, if such Person survives
said merger, or, if there is more than one such Person, the
Person the shares of Common Stock of which has the greatest
aggregate market value of shares outstanding or (2) if the
Person that is the other party to the merger does not
survive the merger, the Person that does survive the merger
(including the Company if it survives) or (3) the Person
resulting from the consolidation; and
(ii) in the case of any transaction described in clause
(z) of the first sentence of 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 the shares of Common Stock having the greatest
aggregate market value of shares outstanding;
provided, however, that in any such case, (1) if the Common Stock
of such Person is not at such time and has not been continuously
over the preceding twelve (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, "Principal Party" shall refer to
such other Person; (2) in case such Person is a Subsidiary,
directly or indirectly, of more than one Person, the Common
Stocks of two or more of which are and have been so registered,
"Principal Party" shall refer to whichever of such Persons is the
issuer of the Common Stock having the greatest aggregate market
value of shares outstanding; and (3) in case such Person is
owned, directly or indirectly, by a joint venture formed by two
or more Persons that are not owned, directly or indirectly, by
the same Person, the rules set forth in (1) and (2) above shall
apply to each of the chains of ownership having an interest in
such joint venture as if such party were a "Subsidiary" of both
or all of such joint venturers and the Principal Parties in each
such chain shall bear the obligations set forth in this Section
13 in the same ratio as their direct or indirect interests in
such Person bear to the total of such interests.
(c) The Company shall not consummate any such
consolidation, merger, sale or transfer unless the Principal
Party covenants and agrees that it will cause to be reserved and
kept available out of its authorized and unissued shares of
Common Stock or out of its authorized and issued shares held in
its treasury, the number of shares of its Common Stock that will
be sufficient to permit the exercise in full of all outstanding
Rights under this Section 13 and unless prior thereto the Company
and such Principal Party shall have executed and delivered to the
Rights Agent a supplemental agreement confirming that the
requirements set forth in paragraphs (a) and (b) of this Section
13 shall be promptly performed in accordance with their terms and
further providing that, as soon as practicable after executing
such agreement pursuant to this Section 13, the Principal Party
will:
(i) prepare and file a registration statement under
the Act, with respect to the Rights and the securities
purchasable upon exercise of the Rights on an appropriate
form, and will use its best efforts to cause such
registration statement to (A) become effective as soon as
practicable after such filing and (B) remain effective (with
a prospectus at all times meeting the requirements of the
Act) until the Expiration Date and similarly comply with
applicable state securities laws;
(ii) use its best efforts, if the shares of Common
Stock of the Principal Party shall be listed or admitted to
trading on a national securities exchange or NASDAQ to list
or admit to trading (or continue the listing of) the Rights
and the securities purchasable upon exercise of the Rights
on such securities exchange or NASDAQ and, if the shares of
Common Stock of the Principal Party shall not be listed or
admitted to trading on a national securities exchange or
NASDAQ, to cause the Rights and the securities purchasable
upon exercise of the Rights to be reported by such other
system then in use;
(iii) deliver to record holders of the Rights
historical financial statements for the Principal Party and
each of its Affiliates which comply in all respects with the
requirements for registration on Form 10 under the Exchange
Act; and
(iv) obtain waivers of any rights of first refusal or
preemptive rights in respect of the shares of Common Stock
of the Principal Party subject to purchase upon exercise of
outstanding Rights.
The provisions of this Section 13 shall similarly apply to
successive mergers or consolidations or sales or other transfers.
In the event that a Section 13 Event shall occur at any time
after the occurrence of a Section 11(a)(ii) Event, the Rights
which have not theretofore been exercised shall thereafter become
exercisable in the manner described in Section 13(a). If, for
any reason, the Rights cannot be exercised for Common Stock of
the Company or such Principal Party, then a holder of Rights will
have the right to exchange such Rights for cash from the Company
or such Principal Party in an amount equal to the number of
shares of such Common Stock such holder would otherwise be
entitled to purchase times 50% of the then Current Market Price,
as determined pursuant to Section 11(d)(i) hereof, of such stock
of such Principal Party or the Company. If, for any reason,
including, without limitation, such Principal Party is an
individual, private partnership or private company, the foregoing
formulation cannot be applied to determine the cash amount into
which the Rights are exchangeable, then the Board of Directors,
based upon advice from one or more nationally recognized
investment banking firms, shall determine such amount reasonably
and with utmost good faith to the holders of Rights. Any such
determination shall be binding and final.
(d) Notwithstanding anything in this Agreement to the
contrary, Section 13 shall not be applicable to a transaction
described in subparagraphs (x) and (y) of Section 13(a) if (i)
such transaction is consummated with a Person or Persons who
acquired shares of Common Stock pursuant to a Qualifying Offer
(or a wholly owned Subsidiary of any such Person or Persons),
(ii) the price per share of Common Stock offered in such
transaction is not less than the price per share of Common Stock
paid to all record holders of shares of Common Stock whose shares
were purchased pursuant to such Qualifying Offer, and (iii) the
form of consideration being offered to the remaining record
holders of shares of Common Stock pursuant to such transaction is
the same as the form of consideration paid pursuant to such
Qualifying Offer. Upon consummation of any such transaction
contemplated by this Section 13(d), all Rights hereunder shall
expire.
SECTION 14. FRACTIONAL RIGHTS AND FRACTIONAL SHARES.
(a) The Company shall not be required to issue fractions of
Rights, except prior to the Distribution Date as provided in
Section 11(p) hereof, or to distribute Rights Certificates which
evidence fractional Rights. In lieu of such fractional Rights,
there shall be paid to the record holders 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 current market value of a whole Right. For
purposes of this Section 14(a), the current market value of a
whole Right shall be the closing price of the Rights for the
Trading Day immediately prior to the date on which such
fractional Rights would have been otherwise issuable. The
closing price of the Rights 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 principal consolidated
transaction reporting system with respect to securities listed or
admitted to trading on the New York Stock Exchange or, if the
Rights are not listed or admitted to trading on the New York
Stock Exchange, as reported in the principal consolidated
transaction reporting system with respect to securities listed on
the principal national securities exchange on which the Rights
are listed or admitted to trading, or if the Rights are not
listed or admitted to trading on any national securities
exchange, the last sale price or, if such last sale price is not
reported, 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 on any such date the Rights 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 Rights selected by the Board of Directors.
If on any such date no such market maker is making a market in
the Rights, the fair value of the Rights on such date as
determined in good faith by the Board of Directors shall be used.
(b) The Company shall not be required to issue fractions of
shares of Preferred Stock (other than, except as provided in
Section 7(c), fractions which are integral multiples of one
one-thousandth of a share of Preferred Stock) upon exercise of
the Rights or to distribute certificates which evidence
fractional shares of Preferred Stock (other than fractions which
are integral multiples of one one-thousandth of a share of
Preferred Stock). Fractions of shares of Preferred Stock in
integral multiples of one one-thousandth of a share of Preferred
Stock may, at the election of the Company, be evidenced by
depositary receipts, pursuant to an appropriate agreement between
the Company and a depositary selected by it; provided, however,
that such agreement shall provide that the holders of such
depositary receipts shall have the rights, privileges and
preferences to which they are entitled as beneficial owners of
the shares of Preferred Stock represented by such depositary
receipts. In lieu of fractional shares of Preferred Stock that
are not integral multiples of one one-thousandth of a share of
Preferred Stock, the Company may pay to the record holders of
Rights Certificates at the time such Rights are exercised as
herein provided an amount in cash equal to the same fraction of
the current market value of one one-thousandth of a share of
Preferred Stock. For purposes of this Section 14(b), the current
market value of one one-thousandth of a share of Preferred Stock
shall be one one-thousandth of the closing price of a share of
Preferred Stock (as determined pursuant to Section 11(d)(ii)
hereof) for the Trading Day immediately prior to the date of such
exercise.
(c) Following the occurrence of a Triggering Event, the
Company shall not be required to issue fractions of shares of
Common Stock, exercise of the Rights or to distribute
certificates which evidence fractional shares of Common Stock.
In lieu of fractional shares of Common Stock the Company may pay
to the record holders of Rights Certificates at the time such
Rights are exercised as herein provided an amount in cash equal
to the same fraction of the current market value of one share of
Common Stock. For purposes of this Section 14(c), the current
market value of one share of Common Stock shall be determined in
a manner set forth in Section 11(d)(i) hereof for the Trading Day
immediately prior to the date of such exercise.
(d) The record holder of a Right by the acceptance of the
Rights expressly waives his right to receive any fractional
Rights or any fractional shares upon exercise of a Right, except
as permitted by this Section 14.
SECTION 15. RIGHTS OF ACTION. All rights of action in
respect of this Agreement, excepting the rights of action given
to the Rights Agent, are vested in the respective record holders
of the Rights Certificates (and, prior to the Distribution Date,
the record holders of the Common Stock); and any record holder of
any Rights Certificate (or, prior to the Distribution Date, of
the Common Stock), without the consent of the Rights Agent or of
the record 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 Agreement.
Without limiting the foregoing or any remedies available to the
record holders of Rights, it is specifically acknowledged that
such holders of Rights would not have an adequate remedy at law
for any breach of this Agreement and shall be entitled to
specific performance of the obligations hereunder and injunctive
relief against actual or threatened violations of the obligations
hereunder of any Person subject to this Agreement.
SECTION 16. AGREEMENT OF RIGHTS HOLDERS. Every holder of
a Right, by accepting the same, consents and agrees with the
Company and the Rights Agent and with every other holder of a
Right that:
(a) prior to the Distribution Date, the Rights will be
transferable only in connection with the transfer of Common
Stock;
(b) after the Distribution Date, the Rights
Certificates are transferable only on the transfer books of
the Rights Agent if surrendered at the principal office or
offices of the Rights Agent designated for such purposes,
duly endorsed or accompanied by a proper instrument of
transfer and with the appropriate forms and certificates
fully executed;
(c) subject to Section 6(a) and Section 7(f) hereof,
the Company and the Rights Agent may deem and treat the
person in whose name a Rights Certificate (or, prior to the
Distribution Date, the associated Common Stock certificate)
is registered on the transfer books of the Rights Agent 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, subject to the last
sentence of Section 7(e) hereof, shall be required to be
affected by any notice to the contrary; and
(d) notwithstanding anything in this Agreement to the
contrary, neither the Company nor the Rights Agent shall
have any liability to any holder of a Right or other Person
as a result of its inability to perform any of its
obligations under this Agreement by reason of any
preliminary or permanent injunction or other order, decree
or ruling issued by a court of competent jurisdiction or by
a governmental, regulatory or administrative agency or
commission, or any statute, rule, regulation or executive
order promulgated or enacted by any governmental authority,
prohibiting or otherwise restraining performance of such
obligations; provided, however, the Company must use its
reasonable efforts to have any such order, decree or ruling
lifted or otherwise overturned as soon as possible.
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 the number of one one-thousandths of a
share of Preferred Stock or any other securities of the Company
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 withhold consent to any corporate
action, or to receive notice of meetings or other actions
affecting stockholders (except as provided in Section 25 hereof),
or to receive dividends or subscription rights, or otherwise,
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 such
compensation as shall be agreed to in writing between the Company
and the Rights Agent for all services rendered by it hereunder
and, from time to time, on demand of the Rights Agent, its
reasonable expenses and counsel fees and disbursements and other
disbursements incurred in the administration and execution of
this Agreement and the exercise and performance of its duties
hereunder. The Company also agrees to indemnify the Rights Agent
including its members, directors, officers, employees,
shareholders and agents, for, and to hold it harmless against,
any loss, liability, or expense, incurred without gross
negligence, bad faith or willful misconduct on the part of the
Rights Agent, for anything done or omitted by the Rights Agent in
connection with the acceptance and administration of this
Agreement, including, without limitation, the costs and expenses
of defending against any claim of liability in the premises
(including reasonable counsel fees and expenses). The indemnity
provided for herein shall survive the expiration of the Rights
and the termination of this Agreement.
(b) The Rights Agent shall be protected and shall incur no
liability for or in respect of any action taken, suffered or
omitted by it in connection with its administration of this
Agreement in reliance upon any Rights Certificate or certificate
for Common 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, guaranteed or acknowledged, by the proper Person or
Persons.
SECTION 19. MERGER OR CONSOLIDATION OR CHANGE OF NAME OF
RIGHTS AGENT.
(a) Any corporation into which the Rights Agent or any
successor Rights Agent may be merged or with which it may be
consolidated, or any corporation resulting from any merger or
consolidation to which the Rights Agent or any successor Rights
Agent shall be a party, or any corporation succeeding to the
corporate trust or stockholder services business of the Rights
Agent or any successor Rights Agent, shall be the successor to
the Rights Agent under this Agreement without the execution or
filing of any paper or any further act on the part of any of the
parties hereto, provided, that such corporation would be eligible
for appointment as a successor Rights Agent under the provisions
of Section 21 hereof. In case at the time such successor Rights
Agent shall succeed to the agency created by this Agreement, any
of the Rights Certificates shall have been countersigned but not
delivered; any such successor Rights Agent may adopt the
countersignature of a predecessor Rights Agent and deliver such
Rights Certificates so countersigned; and in case at that time
any of the Rights Certificates shall not have been countersigned,
any successor Rights Agent may countersign such Rights
Certificates in the name of the successor Rights Agent; and in
all such cases such Rights Certificates shall have the full force
provided in the Rights Certificates and in this Agreement.
(b) In case at any time the name of the Rights Agent shall
be changed and at such time any of the Rights Certificates shall
have been countersigned but not delivered, the Rights Agent may
adopt the countersignature under its prior name and deliver
Rights Certificates so countersigned; and in case at that time
any of the Rights Certificates shall not have been countersigned,
the Rights Agent may countersign such Rights Certificates either
in its prior name or in its changed name; and in all such cases
such Rights Certificates shall have the full force provided in
the Rights Certificates and in this Agreement.
SECTION 20. DUTIES OF RIGHTS AGENT. The Rights Agent
undertakes the specific duties and obligations expressly imposed
by this Agreement, and no implied duties or obligations shall be
read into this Agreement against the Rights Agent, 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 opinion
of such counsel shall be full and complete authorization and
protection to the Rights Agent as to any action taken or
omitted by it in good faith and in accordance with such
opinion.
(b) Whenever in the performance of its duties under
this Agreement the Rights Agent shall deem it necessary or
desirable that any fact or matter (including, without
limitation, the identity of any Acquiring Person and the
determination of "Current Market Price") be proved or
established by the Company prior to taking or omitting any
action hereunder, such fact or matter (unless other evidence
in respect thereof be herein specifically prescribed) may be
deemed to be conclusively proved and established by a
certificate signed by the Chairman of the Board, the
President, any Vice President, the Treasurer, any Assistant
Treasurer, the Secretary or any Assistant Secretary of the
Company and delivered to the Rights Agent; and such
certificate shall be full authorization to the Rights Agent
for any action taken or omitted in good faith by it under
the provisions of this Agreement in reliance upon such
certificate.
(c) The Rights Agent shall be liable hereunder only
for its own 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 Agreement or in the Rights Certificates or
be required to verify the same (except as to its
countersignature on such Rights Certificates), but all such
statements and recitals are and shall be deemed to have been
made by the Company only.
(e) The Rights Agent shall not be under any
responsibility in respect of the validity of this Agreement
or the execution and delivery hereof (except the due
execution hereof by the Rights Agent) or in respect of the
validity or execution of any Rights Certificate (except its
countersignature thereof); nor shall it be responsible for
any breach by the Company of any covenant or condition
contained in this Agreement or in any Rights Certificate;
nor shall it be responsible for any adjustment required
under the provisions of Section 11 or Section 13 hereof or
responsible for the manner, method or amount of any such
adjustment or the ascertaining of the existence of facts
that would require any such adjustment (except with respect
to the exercise of Rights evidenced by Rights Certificates
after actual notice of any such adjustment); nor shall it by
any act hereunder be deemed to make any representation or
warranty as to the authorization or reservation of any
shares of Common Stock or Preferred Stock to be issued
pursuant to this Agreement or any Rights Certificate or as
to whether any shares of Common Stock, Preferred Stock or
other securities, will when so issued, be validly authorized
and issued, fully paid and nonassessable.
(f) The Company agrees that it will perform, execute,
acknowledge and deliver or cause to be performed, executed,
acknowledged and delivered all such further and other acts,
instruments and assurances as may reasonably be required by
the Rights Agent for the carrying out or performing by the
Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed
to accept instructions with respect to the performance of
its duties hereunder from the Chairman of the Board, the
President, any Vice President, the Secretary, any Assistant
Secretary, the Treasurer or any Assistant Treasurer of the
Company, and to apply to such officers for advice or
instructions in connection with its duties, and it shall not
be liable for any action taken or omitted to be taken by it
in good faith in accordance with instructions of any such
officer or for any delay in acting while waiting for those
instructions.
(h) The Rights Agent and any stockholder, director,
officer or employee of the Rights Agent may buy, sell or
deal in any of the Rights or other securities of the Company
or become pecuniarily interested in any transaction in which
the Company may be interested, or contract with or lend
money to the Company or otherwise act as fully and freely as
though it were not Rights Agent under this Agreement.
Nothing herein shall preclude the Rights Agent from acting
in any other capacity for the Company or for any other legal
entity.
(i) The Rights Agent may execute and exercise any of
the rights or powers hereby vested in it or perform any duty
hereunder either itself or by or through its attorneys or
agents, and the Rights Agent shall not be answerable or
accountable for any act, default, neglect or misconduct of
any such attorneys or agents or for any loss to the Company
resulting from any such act, default, neglect or misconduct,
provided, that reasonable care was exercised in the
selection and continued employment thereof.
(j) No provision of this Agreement shall require the
Rights Agent to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of
its duties hereunder or in the exercise of its rights if
there shall be reasonable grounds for believing that
repayment of such funds or adequate indemnification against
such risk or liability is not reasonably assured to it.
(k) If, with respect to any Rights Certificate
surrendered to the Rights Agent for exercise or transfer,
the certificate attached to the form of assignment or form
of election to purchase, as the case may be, has either not
been completed or indicates an affirmative response to
clause 1 and/or 2 thereof, the Rights Agent shall not take
any further action with respect to such requested exercise
or transfer without first consulting with the Company.
(l) The Rights Agent shall have no responsibility to
the Company, any holders of Rights or any holders of shares
of Common Stock for interest or earnings on any moneys held
by the Rights Agent pursuant to this Agreement.
(m) The Rights Agent shall not be required to take
notice or be deemed to have notice of any event or condition
hereunder, including, but not limited to, a Distribution
Date, a Redemption Date, any adjustment of the Purchase
Price of the Common Stock, and adjustment to the Purchase
Price of the Preferred Stock, the existence of an Acquiring
Person or any other event or condition that may require
action by the Rights Agent, unless the Rights Agent shall be
specifically notified in writing of such event or condition
by the Company, and all notices or other instruments
required by this Agreement to be delivered to the Rights
Agent must, in order to be effective, be received by the
Rights Agent as specified in Section 26 hereof, and in the
absence of such notice so delivered, the Rights Agent may
conclusively assume no such event or condition exists.
SECTION 21. CHANGE OF RIGHTS AGENT. The Rights Agent or
any successor Rights Agent may resign and be discharged from its
duties under this Agreement upon thirty (30) days' notice in
writing, mailed to the Company and shall provide notice thereof
to each transfer agent of the Common Stock or Preferred Stock by
registered or certified mail, and to the holders of the Rights
Certificates in accordance with Section 26 hereof, or if prior to
the Distribution Date, to the holders of Rights through any
filing made by the Company pursuant to the Exchange Act. The
Company may remove the Rights Agent or any successor Rights Agent
upon thirty (30) days' notice in writing, mailed to the Rights
Agent or successor Rights Agent, as the case may be, and shall
provide notice thereof to each transfer agent of the Common Stock
and Preferred Stock, by registered or certified mail, and to the
holders of the Rights Certificates in accordance with Section 26
hereof, or, if prior to the Distribution Date, to the holders of
Rights through any filing made by the Company pursuant tot he
Exchange Act. 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. If the Company shall
fail to make such appointment within a period of thirty (30) days
after giving notice of such removal or after it has been notified
in writing of such resignation or incapacity by the resigning or
incapacitated Rights Agent or by the record holder of a Rights
Certificate (who shall, with such notice, submit his Rights
Certificate for inspection by the Company), then any record
holder of any Rights Certificate or the Rights Agent 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 corporation or banking
association organized and doing business under the laws of the
United States or of the State of Missouri or the State of New
York (or of any other state of the United States so long as such
corporation is authorized to do business as a banking institution
in the State of Missouri or the State of New York), in good
standing, which is authorized under such laws to exercise
corporate trust powers and is subject to supervision or
examination by federal or state authority and which has at the
time of its appointment as Rights Agent a combined capital and
surplus of at least $100,000,000. 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 and the rights
and obligations of the predecessor shall cease and terminate, 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 the
Preferred Stock, and mail a notice thereof in writing to the
holders of the Rights Certificates in accordance with Section 26
hereof, or, if prior to the Distribution Date, give notice to the
holders of Rights through any filing made by the Company pursuant
to the Exchange Act. Failure to give any notice provided for in
this Section 21, however, or any defect therein, shall not affect
the legality or validity of the resignation or removal of the
Rights Agent or the appointment of the successor Rights Agent, as
the case may be.
SECTION 22. ISSUANCE OF NEW RIGHTS CERTIFICATES.
Notwithstanding any of the provisions of this Agreement or of the
Rights to the contrary, the Company may, at its option, issue new
Rights Certificates evidencing Rights in such form as may be
approved by its Board of Directors to reflect any adjustment or
change in the Purchase Price and the number or kind or class of
shares or other securities or property purchasable under the
Rights Certificates made in accordance with the provisions of
this Agreement. In addition, in connection with the issuance or
sale of shares of Common Stock following the Distribution Date
and prior to the redemption or expiration of the Rights, the
Company (a) shall, with respect to shares of Common Stock so
issued or sold pursuant to the exercise of stock options or under
any employee plan or arrangement, granted or awarded as of the
Distribution Date, or upon the exercise, conversion or exchange
of securities hereinafter issued by the Company, and (b) may, in
any other case, if deemed necessary or appropriate by the Board
of Directors, issue Rights Certificates representing the
appropriate number of Rights in connection with such issuance or
sale; provided, however, that (i) no such Rights Certificates
shall be issued and this sentence shall be null and void ab
initio if, and to the extent that, the Company shall be advised
by counsel that such issuance would create a significant risk of
material adverse tax consequences to the Company or the Person to
whom such Rights Certificate would be issued, and (ii) no such
Rights Certificate shall be issued if, and to the extent that,
appropriate adjustment shall otherwise have been made in lieu of
the issuance thereof
SECTION 23. REDEMPTION AND TERMINATION.
(a) The Board of Directors, at its option, at any time
prior to the earlier of (i) the close of business on the tenth
Business Day following the Stock Acquisition Date, or (ii) the
time at which the Rights expire pursuant to this Agreement,
redeem all but not less than all the then outstanding Rights at a
redemption price of $.01 per Right, as such amount may be
appropriately adjusted pursuant to Section 23(c) hereof (such
redemption price being hereinafter referred to as the "Redemption
Price"). Notwithstanding anything contained in this Agreement to
the contrary, the Rights shall not be exercisable after the first
occurrence of a Section 11(a)(ii) Event until such time as the
Company's right of redemption hereunder has expired. The Company
may, at its option, pay the Redemption Price in cash, shares of
Common Stock (based on the Current Market Price of the Common
Stock at the time of redemption) or any other form of
consideration deemed appropriate by the Board of Directors. The
redemption of the Rights may be made effective at such time, on
such basis and with such conditions as the Board of Directors in
its sole discretion may establish.
(b) Immediately upon the action of the Board of Directors
ordering the redemption of the Rights pursuant to Section 23(a)
(or at such later time as the Board of Directors may establish
for the effectiveness of such redemption), notice of which shall
have been provided to the Rights Agent, and without any further
action and without any notice, the right to exercise the Rights
will terminate and the only right thereafter of the holders of
Rights shall be to receive the Redemption Price for each Right so
held. Promptly after the action by the Board of Directors
ordering the redemption of the Rights becoming effective, the
Company shall provide notice of such redemption to the Rights
Agent and the holders of the then outstanding Rights in
accordance with Section 26 (provided that the failure to provide,
or any defect in, such notice shall not affect the validity of
such redemption). Any notice which is provided in the manner
herein provided shall be deemed given, whether or not the record
holder receives the notice. Each such notice of redemption will
state the method by which the payment of the Redemption Price
will be made.
(c) In the event the Company shall at any time after the
date of this Agreement (i) declare or pay any dividend on the
outstanding shares of Common Stock payable in shares of Common
Stock, (ii) subdivide or split the outstanding shares of Common
Stock into a greater number of shares, or (iii) 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 Board
of Directors shall adjust the Redemption Price so that the
Redemption Price after such event shall equal the Redemption
Price 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 outstanding
immediately prior to such event; provided, however, that in each
case such adjustment to the Redemption Price shall be made only
if the amount of the Redemption Price shall be reduced or
increased by $.01 per Right.
SECTION 24. EXCHANGE.
(a) The Board of Directors may, at its option, at any time
after any Person becomes an Acquiring Person, exchange all or
part of the then outstanding and exercisable Rights (which shall
not include Rights that have become void pursuant to the
provisions of Section 7(e) hereof) for shares of Common Stock at
an exchange ratio of one share of Common Stock per Right,
appropriately adjusted to reflect any stock split, stock dividend
or similar transaction occurring after the date hereof (such
exchange ratio being hereinafter referred to as the "Exchange
Ratio"), provided that the shares of Common Stock so exchanged
shall be of the same class or series which the holders of such
Rights would have been entitled to receive upon the exercise
thereof. Notwithstanding the foregoing, the Board of Directors
shall not be empowered to effect such exchange at any time after
any Person (other than an Exempted Person), together with all
Affiliates and Associates of such Person, becomes the Beneficial
Owner of Voting Securities of the Company then outstanding
representing 50% or more of the Voting Power of the Company.
(b) Immediately upon the action of the Board of Directors
ordering the exchange of any Rights pursuant to Section 24(a) and
without any further action and without any notice, the right to
exercise such Rights shall terminate and the only right
thereafter of a holder of such Rights shall be to receive that
number of shares of Common Stock equal to the number of such
Rights held by such holder multiplied by the Exchange Ratio,
provided that the shares of Common Stock so exchanged shall be of
the same class or series which the holder of such Rights would
have been entitled to receive upon the exercise thereof. The
Company shall promptly make a public announcement of any such
exchange; provided, however, that the failure to make, or any
defect in, such public announcement shall not affect the validity
of such exchange. Promptly after the action of the Board of
Directors ordering the exchange of the Rights becoming effective,
the Company shall provide notice of such exchange to the Rights
Agent and all of the holders of the then outstanding Rights in
accordance with Section 25 hereof (provided that the failure to
give, or any defect in, such notice shall not affect the validity
of such exchange). Any notice which is mailed in the manner
provided in Section 26 hereof 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 based on the number of
Rights (other than Rights which have become void pursuant to the
provisions of Section 7(e) hereof) held by each holder of Rights.
(c) In the event that there shall not be authorized and
unissued shares of the applicable class or series of Common Stock
and/or authorized and issued shares of the applicable class or
series of Common Stock held in its treasury sufficient to permit
any exchange of Rights as contemplated in accordance with this
Section 24, the Company shall take all such action as may be
necessary to authorize additional shares of the applicable class
or series of Common Stock for issuance upon exchange of the
Rights. In the event the Company shall, after good faith effort,
be unable to take all such action as may be necessary to
authorize such additional shares of the applicable class or
series of Common Stock, the Company shall substitute, for each
share of such class or series of Common Stock that would
otherwise be issuable upon exchange of a Right, a number of
shares of the applicable series of Preferred Stock or fraction
thereof (subject to Section 14(b) hereof) such that the Current
Market Price per share of the applicable series of Preferred
Stock multiplied by such number or fraction is equal to the
Current Market Price per share of such class or series of Common
Stock as of the date of issuance of such shares of such series of
Preferred Stock or fraction thereof.
(d) The Company shall not be required to issue fractions of
shares of Common Stock or to distribute certificates which
evidence fractional shares of Common Stock. In lieu of such
fractional shares of Common Stock, the Company shall pay to the
registered holders of the Right Certificates with regard to which
such fractional shares of Common Stock would otherwise be
issuable an amount in cash equal to the same fraction of the
Current Market Price per share of the applicable class or series
of Common Stock as of the Trading Day immediately prior to the
record date of exchange pursuant to this Section 24.
SECTION 25. NOTICE OF CERTAIN EVENTS.
(a) In case the Company shall propose, at any time after
the Distribution Date, (i) to pay any dividend payable in stock
of any class to the holders of Preferred Stock or to make any
other distribution to the holders of Preferred Stock (other than
a regular quarterly cash dividend out of earnings or retained
earnings of the Company), or (ii) to offer to the holders of
Preferred Stock rights or warrants to subscribe for or to
purchase any additional shares of Preferred Stock or shares of
stock of any class or any other securities, rights or options, or
(iii) to effect any reclassification of its Preferred Stock
(other than a reclassification involving only the subdivision of
outstanding shares of Preferred Stock), or (iv) to effect any
consolidation or merger into or with any other Person (other than
a Subsidiary of the Company in a transaction which complies with
Section 11(o) hereof), 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 transaction or a series of related
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 (other than the Company and/or any of its
Subsidiaries in one or more transactions each of which complies
with Section 11(o) hereof), 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 a Rights
Certificate and to the Rights Agent, to the extent feasible and
in accordance with Section 26 hereof, a notice of such proposed
action, which shall specify the record date for the purposes of
such stock dividend, distribution of rights or warrants, or the
date on which such reclassification, consolidation, merger, sale,
transfer, liquidation, dissolution, or winding up is to take
place and the date of participation therein by the holders of the
shares of 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 twenty (20) days prior to
the record date for determining holders of the shares of
Preferred Stock for purposes of such action, and in the case of
any such other action, at least twenty (20) days prior to the
date of the taking of such proposed action or the date of
participation therein by the holders of the shares of Preferred
Stock whichever shall be the earlier.
(b) In the event that a Section 11(a)(ii) Event shall
occur, then in any such case (i) the Company shall as soon as
practicable thereafter give to each holder of a Rights
Certificate, to the extent feasible and in accordance with
Section 26 hereof, a notice of the occurrence of such event,
which shall specify the event and the consequences of the event
to holders of Rights under Section 11(a)(ii) hereof, and (ii) all
references in the preceding paragraph to Preferred Stock shall be
deemed thereafter to refer to Common Stock and/or, if
appropriate, other securities of the Company.
SECTION 26. NOTICES. Notices or demands authorized by
this Agreement to be given or made by the Rights Agent or by the
holder of any Rights Certificate to or on the Company shall be
sufficiently given or made if sent by first-class mail, postage
prepaid, addressed (until another address is filed in writing
with the Rights Agent) as follows:
Cerner Corporation
ββββ βββββββββ βββββββ, βββββ βββ
ββββββ ββββ, ββββββββ βββββ
Attention: President
Subject to the provisions of Section 21, any notice or demand
authorized by this Agreement to be given or made by the Company
or by the holder of any Rights Certificate to or on the Rights
Agent shall be sufficiently given or made upon receipt by the
Corporate Trust Department of the Rights Agent, if sent by
registered or certified mail, postage prepaid, addressed (until
another address is filed in writing with the Company) as follows:
UMB Bank, n.a., as Rights Agent
ββββ ββββββ βββ ββββββ
ββββββ ββββ, ββββββββ βββββ-ββββ
Attention: Corporate Trust Department
Notices or demands authorized by this Agreement to be given or
made by the Company or the Rights Agent to the holder of any
Rights Certificate (or, if prior to the Distribution Date, to the
holder of certificates representing shares of Common Stock) 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 Rights Agent (or, if
prior to the Distribution Date, on the registry books of the
Transfer Agent for the Common Stock of the Company).
SECTION 27. SUPPLEMENTS AND AMENDMENTS. Except as
provided in the penultimate sentence of this Section 27, for so
long as the Rights are then redeemable, the Company may in its
sole and absolute discretion, and the Rights Agent shall if the
Company so directs, supplement or amend any provision of this
Agreement without the approval of any holders of the Rights. At
any time when the Rights are no longer redeemable, except as
provided in the penultimate sentence of this Section 27, the
Company may, and the Rights Agent shall if the Company so
directs, supplement or amend this Agreement without the approval
of any holders of Rights Certificates in order to (i) cure any
ambiguity, (ii) correct or supplement any provision contained
herein which may be defective or inconsistent with any other
provisions herein, (iii) shorten or lengthen any time period
hereunder, or (iv) change or supplement the provisions hereunder
in any manner which the Company may deem necessary or desirable;
provided that no such supplement or amendment adversely affects
the interests of the holders of Rights as such (other than an
Acquiring Person or an Affiliate or Associate of an Acquiring
Person) and no such amendment may cause the Rights again to
become redeemable or cause the Agreement again to become
amendable other than in accordance with this sentence.
Notwithstanding anything contained in this Agreement to the
contrary, no supplement or amendment shall be made which changes
the Redemption Price. 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 27, the Rights Agent shall execute such supplement or
amendment; provided, however, that the Rights Agent may, but
shall not be obligated to, enter into any such supplement or
amendment which adversely affects the Rights Agent's own rights,
duties or immunities under this Agreement.
SECTION 28. SUCCESSORS. All the covenants and provisions
of this Agreement by or for the benefit of the Company or the
Rights Agent shall bind and inure to the benefit of their
respective successors and assigns hereunder.
SECTION 29. DETERMINATIONS AND ACTIONS BY THE BOARD OF
DIRECTORS, ETC. For all purposes of this Agreement, any
calculation of the number of shares of Common Stock outstanding
at any particular time, including for purposes of determining the
particular percentage of such outstanding shares of Common Stock
of which any Person is the Beneficial Owner, shall be made in
accordance with the last sentence of Rule 13d-3(d)(1)(i) of the
General Rules and Regulations under the Exchange Act as amended
and in effect on the date hereof. The Board of Directors, except
as otherwise specifically provided for herein, shall have the
exclusive power and authority to administer this Agreement and to
exercise all rights and powers specifically granted to the Board
of Directors or to the Company, or as may be necessary or
advisable in the administration of this Agreement, including,
without limitation, the right and power to (i) interpret the
provisions of this Agreement, and (ii) make all determinations
deemed necessary or advisable for the administration of this
Agreement (including a determination to redeem or not redeem the
Rights or to amend the Agreement). All such actions,
calculations, interpretations and determinations (including, for
purposes of clause (y) below, all omissions with respect to the
foregoing) which are done or made by the Board of Directors in
good faith, shall (x) be final, conclusive and binding on the
Company, the Rights Agent, the holders of the Rights Certificates
(and, prior to the Distribution Date, record holders of the
Common Stock) and all other parties, and (y) not subject the
Board of Directors to any liability to the holders of the Rights.
SECTION 30. BENEFITS OF THIS AGREEMENT. Nothing in this
Agreement shall be construed to give to any Person other than the
Company, the Rights Agent and the record holders of the Rights
Certificates (and, prior to the Distribution Date, record holders
of the Common Stock) any legal or equitable right, remedy or
claim under this Agreement; but this Agreement shall be for the
sole and exclusive benefit of the Company, the Rights Agent and
the record holders of the Rights Certificates (and, prior to the
Distribution Date, record holders of the Common Stock).
SECTION 31. SEVERABILITY. If any term, provision,
covenant or restriction of this Agreement is held by a court of
competent jurisdiction or other authority to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants
and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated;
provided, however, that notwithstanding anything in this
Agreement to the contrary, if any such term, provision, covenant
or restriction is held by such court or authority to be invalid,
void or unenforceable and the Board of Directors of the Company
determines in its good faith judgment that severing the invalid
language from this Agreement would adversely affect the purpose
or effect of this Agreement, the right of redemption set forth in
Section 23 hereof shall be reinstated and shall not expire until
the close of business on the tenth Business Day (or such longer
period of time as permitted pursuant to Section 27 of this
Agreement) following the date of such determination by the Board
of Directors. Without limiting the foregoing, if any provision
requiring that a determination be made by less than the entire
Board of Directors (or at a time or with the concurrence of a
group of directors consisting of less than the entire Board of
Directors) is held by a court of competent jurisdiction or other
authority to be invalid, void or unenforceable, such
determination shall then be made by the Board of Directors in
accordance with applicable law and the Company's Certificate of
Incorporation and Bylaws.
SECTION 32. GOVERNING LAW. This Agreement, each Right
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 in accordance
with the laws of such State applicable to contracts made and to
be performed entirely within such State.
SECTION 33. COUNTERPARTS. This Agreement may be executed
in any number of counterparts and each of such counterparts shall
for all purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same
instrument.
SECTION 34. DESCRIPTIVE HEADINGS. Descriptive headings
of the several Sections of this Agreement are inserted for
convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and their respective corporate
seals to be hereunto affixed and attested, all as of the day and
year first above written.
CERNER CORPORATION
By: /s/ ββββ ββββββββ
Name: ββββ ββββββββ
Title: Chief Financial Officer
UMB BANK, N.A., as Rights Agent
By: /s/ R. βββββββ ββββββββ
Name: R. βββββββ ββββββββ
Title: Senior Vice President
EXHIBIT A
CERTIFICATE OF DESIGNATION
OF SERIES A PREFERRED STOCK
of
CERNER CORPORATION
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
We, ββββββββ β. βββββ, President, and ββββ β. ββββββ,
Assistant Secretary of Cerner Corporation, a corporation
organized and existing under the General Corporation Law of the
State of Delaware (the "Corporation"), in accordance with the
provisions of Sections 103 and 151(g) thereof, DO HEREBY CERTIFY:
That pursuant to the authority conferred upon the Board
of Directors by the Restated Certificate of Incorporation, as
amended, of the Corporation, the Board of Directors on
November 21, 1996, adopted the following resolution creating a
series of One Hundred Fifty Thousand (150,000) shares of
Preferred Stock designated as Series A Preferred Stock, par value
$.01 per share:
RESOLVED, that pursuant to the authority vested in
the Board of Directors of this Corporation in
accordance with the provisions of its Restated
Certificate of Incorporation, as amended (the
"Certificate of Incorporation"), a series of Preferred
Stock, par value $.01 per share, of the Corporation be
and it hereby is created, and that the designation and
amount thereof and the voting powers, preferences and
relative, participating, optional and other special
rights of the shares of such series, and the
qualifications, limitations and restrictions thereof
are as follows:
Section 1. Designation and Amount. The shares
of such series shall be designated as "Series A
Preferred Stock" and the number of shares constituting
such series shall be One Hundred Fifty Thousand
(150,000). Such number of shares may be increased or
decreased by resolution of the Board of Directors,
provided that no decrease shall reduce the number of
shares of Series A Preferred Stock to a number less
than the number of shares outstanding plus the number
of shares reserved for issuance upon the exercise of
outstanding rights to purchase or convert into shares
of Series A Preferred Stock.
Section 2. Dividends and Distributions.
(A) Subject to the prior and superior
rights of the holders of any shares of any
series of Preferred Stock ranking prior and
superior to the shares of Series A Preferred
Stock with respect to dividends, the holders
of shares of Series A Preferred Stock, in
preference to the holders of Common Stock,
par value $.01 per share (the "Common
Stock"), of the Corporation and of any other
class of stock ranking junior (either as to
dividends or upon liquidation, dissolution or
winding up) to the shares of Series A
Preferred Stock ("Junior Stock"), shall be
entitled to receive, when, as and if declared
by the Board of Directors out of funds
legally available for the purpose, dividends
payable in cash in an amount per share
(rounded to the nearest cent), subject to the
provision for adjustment hereinafter set
forth, equal to 1000 times the aggregate per
share amount of all cash dividends, and 1000
times the aggregate per share amount of all
non-cash dividends or (other distributions
other than a dividend payable in shares of
Common Stock, or a subdivision of the
outstanding shares of Common Stock (by
reclassification or otherwise)), declared on
the Common Stock. In the event the
Corporation shall at any time after
November 21, 1996 (i) declare any dividend on
Common Stock payable in shares of Common
Stock, (ii) subdivide the outstanding Common
Stock, or (iii) combine the outstanding
Common Stock into a smaller number of shares,
then in each such case the amount of
dividends to which holders of shares of
Series A Preferred Stock were entitled
immediately prior to such event under the
preceding sentence shall be adjusted by
multiplying such amount 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) The Board of Directors of the
Corporation shall not declare a dividend or
distribution on the Common Stock (other than
a dividend payable in shares of Common Stock)
unless it shall concurrently therewith
declare a dividend or distribution on the
Series A Preferred Stock as provided in
paragraph (A) above. Payment of a dividend
or distribution determined on the Series A
Preferred Stock shall be in preference to
payment of any dividend or distribution on
the Common Stock or any Junior Stock.
(C) The Board of Directors may fix a
record date for the determination of holders
of shares of Series A Preferred Stock
entitled to receive payment of a dividend or
distribution declared thereon, which record
date shall be no more than thirty (30) days
prior to the date fixed for the payment
thereof.
Section 3. Voting Rights. Except as otherwise
provided herein or by law and in addition to the rights
provided in Article Three of the Certificate of
Incorporation, the holders of shares of Series A
Preferred Stock shall have the following voting rights:
(A) Subject to the provision for
adjustment hereinafter set forth, each share
of Series A Preferred Stock shall entitle the
holder thereof to 1000 votes on all matters
submitted to a vote of the stockholders of
the Corporation. In the event the
Corporation shall at any time (i) declare any
dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding
Common Stock, or (iii) combine the
outstanding Common Stock into a smaller
number of shares, then in each such case the
number of votes per share to which holders of
shares of Series A Preferred Stock were
entitled immediately prior to such event
shall be adjusted by multiplying such number
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) The holders of shares of Series A
Preferred Stock and the holders of shares of
Common Stock and any other capital stock of
the Corporation having general voting rights
shall vote together as one class on all
matters submitted to a vote of stockholders
of the Corporation.
(C) The holders of Series A Preferred
Stock shall have no special voting rights and
their consent shall not be required (except
to the extent they are entitled to vote with
holders of Common Stock as set forth herein)
for taking any corporate action.
Section 4. Certain Restrictions.
(A) Whenever dividends or distributions
payable on the Series A Preferred Stock as
provided in Section 2 are in arrears,
thereafter and until all accrued and unpaid
dividends and distributions on shares of
Series A Preferred Stock outstanding shall
have been paid in full, the Corporation shall
not:
(i) declare or pay dividends
(other than a dividend payable in shares
of Common Stock) on, make any other
distributions on, or redeem or purchase
or otherwise acquire for consideration
any shares of Junior Stock;
(ii) declare or pay dividends
on or make any other distributions on
any shares of stock ranking on a parity
(either as to dividends or upon
liquidation, dissolution or winding up)
with the Series A Preferred Stock
("Parity Stock"), except dividends paid
ratably on the Series A 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;
(iii) redeem or purchase or
otherwise acquire for consideration
shares of any Parity Stock, provided
that the Corporation may at any time
redeem, purchase or otherwise acquire
shares of any such Parity Stock in
exchange for shares of any Junior Stock;
or
(iv) purchase or otherwise
acquire for consideration any shares of
Series A Preferred Stock, or any shares
of Parity Stock, except in accordance
with a purchase offer made in writing or
by publication (as determined by the
Board of Directors) to all holders of
such shares upon such terms as the Board
of Directors, after consideration of the
respective annual dividend rates and
other relative rights and preferences of
the respective series and classes, shall
determine in good faith will result in
fair and equitable treatment among the
respective series or classes.
(B) The Corporation shall not permit
any subsidiary of the Corporation to purchase
or otherwise acquire for consideration any
shares of stock of the Corporation unless the
Corporation could, under paragraph (A) of
this Section 4, purchase or otherwise acquire
such shares at such time and in such manner.
Section 5. Reacquired Shares. Any shares of
Series A Preferred Stock purchased or otherwise
acquired by the Corporation in any manner whatsoever
shall be retired and cancelled promptly after the
acquisition thereof. All such shares shall upon their
cancellation become authorized but unissued shares of
Preferred Stock and may be reissued as part of a new
series of Preferred Stock to be created by resolution
or resolutions of the Board of Directors, subject to
the conditions and restrictions on issuance set forth
herein, in the Certificate of Incorporation, in any
other Certificate of Designation establishing a series
of Preferred Stock or any similar stock or as otherwise
required by law.
Section 6. Liquidation, Dissolution or Winding
Up.
(A) Subject to the prior and superior
rights of holders of any shares of any series
of Preferred Stock ranking prior and superior
to the shares of Series A Preferred Stock
with respect to rights upon liquidation
(voluntary or otherwise), dissolution or
winding up, the holders of the shares of
Series A Preferred Stock, in preference to
the holders of Common Stock and any Junior
Stock, shall be entitled to receive upon such
liquidation (voluntary or otherwise),
dissolution or winding up of the Corporation,
$1,000.00 per share, plus an amount equal to
any unpaid dividends and distributions
thereon to the date of such payment
("Series A Liquidation Preference").
Following the payment of the full amount of
the Series A Liquidation Preference, no
additional distribution shall be made to the
holders of shares of Series A Preferred Stock
unless, prior thereto, the holders of shares
of Common Stock shall have received an amount
per share (the "Capital Adjustment") equal to
the quotient obtained by dividing (i) the
Series A Liquidation Preference by (ii) 1000
(such number in clause (ii), the "Adjustment
Number"). Following payment of the full
amount of the Series A Liquidation Preference
and the Capital Adjustment in respect of all
outstanding shares of Series A Preferred
Stock and Common Stock, respectively, holders
of Series A Preferred Stock and holders of
Common Stock shall receive their ratable and
proportionate share of the remaining assets
to be distributed in the ratio of the
Adjustment Number to one (1) with respect to
such Preferred Stock and Common Stock, on a
per share basis, respectively.
(B) In the event, however, that there
are not sufficient assets available to permit
payment in full of the aggregate amount of
the Series A Liquidation Preference and the
liquidation preferences of all series of
Parity Stock, then such remaining assets
shall be distributed ratably to the holders
of such Series A Preferred Stock and Parity
Stock in proportion to their respective
aggregate liquidation preferences. After
payment of the Series A Liquidation
Preference, in the event that there are not
sufficient assets available to permit payment
in full of the aggregate amount of the
Capital Adjustment, then such remaining
assets shall be distributed ratably to the
holders of Common Stock.
(C) In the event the Corporation shall
at any time (i) declare any dividend on
Common Stock payable in shares of Common
Stock, (ii) subdivide the outstanding Common
Stock (by reclassification or otherwise), or
(iii) combine the outstanding Common Stock
into a smaller number of shares, then in each
such case the Adjustment Number in effect
immediately prior to such event shall be
adjusted by multiplying such number 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.
Section 7. Consolidation, Merger, etc. In
case the Corporation 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 the shares of
Series A Preferred Stock shall at the same time be
similarly exchanged or changed in an amount per share
(subject to the provision for adjustment hereinafter
set forth) equal to 1000 times the aggregate amount of
stock, securities, cash and/or any other property
(payable in kind), as the case may be, into which or
for which each share of Common Stock is changed or
exchanged. In the event the Corporation shall at any
time (i) declare any dividend on Common Stock payable
in shares of Common Stock, (ii) subdivide the
outstanding Common Stock (by reclassification or
otherwise), or (iii) combine the outstanding Common
Stock into a smaller number of shares, then in each
such case the amount set forth in the preceding
sentence with respect to the exchange or change of
shares of Series A Preferred Stock shall be adjusted by
multiplying such amount 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.
Section 8. No Redemption. The shares of
Series A Preferred Stock shall not be redeemable.
Section 9. Ranking. The Series A Preferred
Stock shall rank junior to all other series of the
Corporation's Preferred Stock, or any similar stock
that specifically provides that it shall rank prior to
the shares of Series A Preferred Stock, as to the
payment of dividends and the distribution of assets,
unless the terms of any such series shall provide
otherwise. Nothing herein shall preclude the Board of
Directors from creating any series of Preferred Stock
or any similar stock ranking on a parity with or prior
to the shares of Series A Preferred Stock as to the
payment of dividends or the distribution of assets.
Section 10. Fractional Shares. Series A
Preferred Stock may be issued in fractions of a share
which shall entitle the holder, in proportion to such
holder's fractional shares, to exercise voting rights,
receive dividends, participate in distributions and to
have the benefit of all other rights of holders of
Series A Preferred Stock.
Section 11. Amendment. The Certificate of
Incorporation, including this Certificate of
Designation establishing the shares of the Series A
Preferred Stock, shall not be amended in any manner
which would materially alter or change the powers,
preferences or special rights of the Series A Preferred
Stock so as to affect them adversely without the
affirmative vote of the holders of two-thirds or more
of the outstanding shares of Series A Preferred Stock
voting separately as a class.
IN WITNESS WHEREOF, this Certificate is executed on
behalf of the Corporation by its president and attested by it
Secretary this ___ day of November, 1996.
____________________________
ββββββββ β. βββββ
President
ATTEST:
________________________
ββββ β. ββββββ
Assistant Secretary
STATE OF MISSOURI )
) ss.
COUNTY OF CLAY )
BE IT REMEMBERED, that before me, a notary public in and for
the aforesaid county and state, personally appeared ββββββββ β.
βββββ, President, and ββββ β. ββββββ Assistant Secretary, of
Cerner Corporation, a Delaware corporation, who are known to me
to be the same persons who executed the foregoing instrument, and
duly acknowledged the execution of the same this ____ day of
November, 1996.
______________________________
Notary Public
My commission expires:
_________________________
EXHIBIT B
FORM OF RIGHTS CERTIFICATE
Certificate No. R- _Rights
NOT EXERCISABLE AFTER NOVEMBER 21, 2006 OR EARLIER IF REDEEMED BY
THE COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION
OF THE COMPANY, AT $.01 PER RIGHT ON THE TERMS SET FORTH IN THE
RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS
BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS SUCH TERM IS
DEFINED IN THE RIGHTS AGREEMENT) AND ANY SUBSEQUENT HOLDER OF
SUCH RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS REPRESENTED BY
THIS RIGHTS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A
PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN AFFILIATE OR
ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN
THE RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHTS CERTIFICATE AND
THE RIGHTS REPRESENTED HEREBY MAY BECOME NULL AND VOID IN THE
CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF SUCH AGREEMENT.]*
RIGHTS CERTIFICATE
CERNER CORPORATION
This certifies that _____________________, or registered
assigns, is the registered owner of the number of Rights set
forth above, each of which entitles the owner thereof, subject to
the terms, provisions and conditions of the Rights Agreement,
dated as of November 21, 1996, as amended (the "Rights
Agreement"), between Cerner Corporation, a Delaware corporation
(the "Company"), and UMB Bank, n.a., a national banking
association (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 at any time prior to 5:00 p.m. (New
York City time) on November 21, 2006 at the office or offices of
the Rights Agent designated for such purpose, or its successors
as Rights Agent, one one-thousandth of a fully paid,
nonassessable share of Series A Preferred Stock (the "Preferred
Stock") of the Company, at a purchase price of $___ per one
one-thousandth of a share (the "Purchase Price"), upon
presentation and surrender of this Rights Certificate with the
Form of Election to Purchase and related Certification duly
executed. The number of Rights evidenced by this Rights
Certificate (and the number of one one-thousandths of a share of
Preferred Stock which may be purchased upon exercise thereof) set
forth above, and the Purchase Price per share set forth above,
are the number and Purchase Price as of November 21, 1996, based
on the Preferred Stock as constituted at such date. As provided
in the Rights Agreement, the Purchase Price and the number and
kind of shares of Preferred Stock or other securities of the
Company or any other Person (as such term is defined in the
____________________
*The portion of the legend in brackets shall be inserted only if
applicable and shall replace the preceding sentence.
Rights Agreement), 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
including a Triggering Event (as such term is defined in the
Rights Agreement).
Upon the occurrence of a Section 11(a)(ii) Event (as such
term is defined in the Rights Agreement), if the Rights evidenced
by this Rights Certificate are beneficially owned by (i) an
Acquiring Person or an Affiliate or Associate of any such
Acquiring Person (as such terms are defined in the Rights
Agreement), (ii) a transferee of any such Acquiring Person,
Affiliate or Associate, or (iii) under certain circumstances
specified in the Rights Agreement, a transferee of a person who,
after such transfer, became an Acquiring Person, or an Affiliate
or Associate of an Acquiring Person, such Rights shall become
null and void and no holder hereof shall have any right with
respect to such Rights from and after the occurrence of such
Section 11(a)(ii) Event.
This Rights Certificate is subject to all of the terms,
provisions and conditions of the Rights Agreement, which terms,
provisions and conditions are hereby incorporated herein by
reference and made a part hereof and to which Rights Agreement
reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities
hereunder of the Rights Agent, the Company and the holders of the
Rights Certificates, which limitations of rights include the
temporary suspension of the exercisability of such Rights under
the specific circumstances set forth in the Rights Agreement.
Copies of the Rights Agreement are on file at the above-mentioned
office of the Rights Agent and are also available upon written
request to the Rights Agent.
This Rights Certificate, with or without other Rights
Certificates, upon surrender at the office or offices of the
Rights Agent designated for such purpose, may be exchanged for
another Rights Certificate or Rights Certificates of like tenor
and date evidencing Rights entitling the holder to purchase a
like aggregate number of one one-thousandths of a share 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 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 at a redemption price of $.01 per Right at
any time prior to the earlier of the close of business on (i) the
tenth Business Day following the Stock Acquisition Date (as such
time period may be extended pursuant to the Rights Agreement),
and (ii) the Final Expiration Date. In addition, subject to the
provisions of the Rights Agreement, each Right evidenced by this
Certificate may be exchanged by the Company at its option for one
share of Common Stock of the Company (subject to adjustment for
any stock split, stock dividend or similar transaction) following
the Stock Acquisition Date and prior to the time an Acquiring
person owns 50% or more of the shares of Common Stock then
outstanding.
No fractional shares of Preferred Stock or other securities
will be issued upon the exercise of any Right or Rights evidenced
hereby (other than fractions which are integral multiples of one
one-thousandth of a share of Preferred Stock, which may, at the
election of the Company, be evidenced by depositary receipts),
but in lieu thereof a cash payment will be made, as provided in
the Rights Agreement.
No holder of this Rights Certificate shall be entitled to
vote or receive dividends or be deemed for any purpose the holder
of shares 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 any meeting thereof, or to give or withhold
consent to any corporate action, or to receive notice of meetings
or other actions affecting stockholders (except as provided in
the Rights 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.
WITNESS the facsimile signature of the proper officers of
the Company and its corporate seal.
Dated as of __________________, ____ CERNER CORPORATION
By:___________________________
[SEAL] Name:
Title:
ATTEST:
___________________________
Name:
Title:
Countersigned:
UMB BANK, N.A., as Rights Agent
By:________________________
Name:
Title:
[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the record holder if such
holder desires to transfer the Rights Certificate.)
FOR VALUE RECEIVED_______________________________________________
_________________________________________________________________
hereby sells, assigns and transfers unto ________________________
_________________________________________________________________
_________________________________________________________________
(Please print name and address of transferee)
this Rights Certificate, together with all right, title and
interest therein, and does hereby irrevocably constitute and
appoint ________________________ Attorney, to transfer the within
Rights Certificate on the books of the within-named Company, with
full power of substitution.
Dated:_________________, ____
______________________________
Signature
Signature Guaranteed:
Signatures must be guaranteed by an Eligible Guarantor
Institution as defined by SEC Rule 17Ad-15 (12 C.F.R. 240.17Ad-15) or
any similar rule which the Rights Agent deems applicable.
[Form of Reverse Side of Rights Certificate (continued)]
Certification
The undersigned hereby certifies by checking the
appropriate boxes that:
(1) this Rights Certificate is not being sold, assigned and
transferred by or on behalf of a Person who is or was an
Acquiring Person or an Affiliate or Associate of any such
Acquiring Person (as such terms are defined in the Rights
Agreement);
(2) after due inquiry and to the best knowledge of the
undersigned, the undersigned 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 of an Acquiring Person.
Dated:________________, __ ________________________________
Signature
Signature Guaranteed:
Signatures must be guaranteed by an Eligible Guarantor
Institution as defined by SEC Rule 17Ad-15 (12 C.F.R. 240.17Ad-15)
or any similar rule which the Rights Agent deems applicable.
NOTICE
The signature to the foregoing Assignment and Certification
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.
In the event the certification set forth above is not or
cannot be completed, the Company and the Rights Agent will deem
the beneficial owner of the Rights evidenced by this Rights
Certificate to be an Acquiring Person or an Affiliate or
Associate thereof (as defined in the Rights Certificate) and such
Assignment will not be honored.
[Form of Reverse Side of Rights Certificate (continued)]
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to exercise Rights
represented by the Rights Certificate.)
To: Cerner Corporation:
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 the Rights (or such other securities of the Company
or of any other Person (as such term is defined in the Rights
Agreement) which may be issuable upon the exercise of the Rights)
and requests that certificates for such shares be issued in the
name of:
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 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 Guaranteed:
Signatures must be guaranteed by an Eligible Guarantor
Institution as defined by SEC Rule 17Ad-15 (12 C.F.R. 240.17Ad-15)
or any similar rule which the Rights Agent deems applicable.
[Form of Reverse Side of Rights Certificate (continued)]
Certification
The undersigned hereby certifies by checking the appropriate
boxes that:
(1) the Rights evidenced by this Rights Certificate
are not being exercised by or on behalf of a Person who is or was
an Acquiring Person or an Affiliate or Associate of any such
Acquiring Person (as such terms are defined in the Rights
Agreement);
(2) after due inquiry and to the best knowledge of the
undersigned, the undersigned did not acquire the Rights evidenced
by this Rights Certificate from any Person who is, was or became
an Acquiring Person or an Affiliate or Associate of an Acquiring
Person.
Dated:_______________, __
____________________________
Signature
Signature Guaranteed:
Signatures must be guaranteed by an Eligible Guarantor
Institution as defined by SEC Rule 17Ad-15 (12 C.F.R. 240.17Ad-15)
or any similar rule which the Rights Agent deems applicable.
NOTICE
The signature to the foregoing Election to Purchase and
Certification 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.
In the event the certification set forth above is not or
cannot be completed, the Company and the Rights Agent will deem
the beneficial owner of the Rights evidenced by this Rights
Certificate to be an Acquiring Person or an Affiliate or
Associate thereof (as defined in the Rights Certificate) and such
Election to Purchase will not be honored.