ICU MEDICAL, INC. and AMERICAN STOCK TRANSFER & TRUST COMPANY (Rights Agent) AMENDED AND RESTATED RIGHTS AGREEMENT Dated as of October 18, 2007 AMENDED AND RESTATED RIGHTS AGREEMENT
Exhibit
2
ICU
MEDICAL, INC.
and
AMERICAN
STOCK TRANSFER & TRUST COMPANY
(Rights
Agent)
AMENDED
AND RESTATED RIGHTS AGREEMENT
Dated
as of October 18, 2007
AMENDED
AND RESTATED RIGHTS AGREEMENT
This
Amended
and Restated Rights Agreement (this “Agreement”) is entered into as of
October 18, 2007, between ICU Medical, Inc., a Delaware corporation (the
“Company”), and American Stock Transfer & Trust Company, a New York
corporation (the “Rights Agent”).
RECITALS
A. This
Agreement is an amendment and restatement of that certain Rights Agreement
dated
as of July 30, 2007 between the Company and Mellon Investor Services
LLC.
B. On
July 30, 2007 (the “Rights Dividend Declaration
Date”), the Board of Directors of the Company authorized and declared a
dividend distribution of one Right (as hereinafter defined) for each share
of
Common Stock of the Company outstanding as of the Close of Business (as
hereinafter defined) on July 30, 2007 (the “Record Date”), and authorized
the issuance of one Right for each share of Common Stock of the Company issued
between the Record Date (whether originally issued or delivered from the
Company’s treasury) and the Distribution Date, each Right initially representing
the right to purchase one one-hundredth of a share
of Series A Junior Participating Preferred Stock of the
Company (as such number may be adjusted pursuant to the provisions of this
Agreement), having the rights, powers and preferences set forth in the form
of a
Certificate of Designation, Preferences and Rights, attached to this Agreement
as Exhibit A, upon the terms and subject to the conditions hereinafter
set forth (collectively, the “Rights”, or individually, a
“Right”).
AGREEMENT
NOW,
THEREFORE, in consideration of the premises and the mutual agreements
herein set forth, the parties hereby agree as follows:
Section 1. Certain
Definitions. For purposes of this Agreement, the
following terms have the meanings indicated:
(a) “Acquiring
Person” shall mean any Person who, together with all Affiliates and
Associates of such Person, shall be the Beneficial Owner of 15% or more of
the
shares of Common Stock then outstanding, but 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,
or any Person or entity organized, appointed or established by
the Company
for or pursuant to the terms of any such
plan;
|
|
|
(iv)
|
any
Person who becomes an Acquiring Person solely as a result of a
reduction
in the number of shares of Common Stock outstanding due to the
repurchase
of shares of Common Stock by the Company, unless and until such
Person or
an Affiliate or Associate of such Person shall purchase or otherwise
become the Beneficial Owner of additional shares of Common Stock
constituting 1% or more of the then outstanding shares of Common
Stock;
|
|
|
(v)
|
any
Person described in Rule 13d-1(b)(1) under the Exchange Act who
is
eligible to report beneficial ownership of Common Stock on Schedule
13G,
unless such Person (1) becomes required to file a Statement on
Schedule
13D with respect to its Beneficial Ownership of Common Stock or
(2)
acquires Beneficial Ownership (whether or not required to be reported
on
Schedule 13D or Schedule 13G) of 20% or more of the then outstanding
shares of Common Stock; or
|
|
|
(vi)
|
any
Grandfathered Stockholder.
|
Notwithstanding
the foregoing, (i) if the Company’s Board of Directors determines in good faith
that a Person who would otherwise be an “Acquiring Person” as defined pursuant
to the foregoing provisions of this Section 1(a) has become such inadvertently
(including, without limitation, because (A) such Person was unaware that
it
beneficially owned a percentage of the shares of Common Stock that would
otherwise cause such Person to be an “Acquiring Person,” as defined pursuant to
the foregoing provisions of this Section 1(a) or (B) such Person was aware
of
the extent of the shares of Common Stock it beneficially owned but had no
actual
knowledge of the consequences of such beneficial ownership under this Agreement)
and without any intention of changing of influencing control of the Company,
and
if such Person divested or divests as promptly as practicable a sufficient
number of shares of Common Stock to that such Person would no longer be an
“Acquiring Person,” as defined pursuant to the foregoing provisions of this
paragraph (a), then such Person shall not be deemed to be or to have become
an
“Acquiring Person” for any purposes of this Agreement; and (ii) Acquiring Person
shall not include any Person whose ownership of 15% or more of the shares
of
Common Stock then outstanding results from any action, transaction or series
of
transactions approved by the Company’s Board of Directors (provided that such
Person shall become an Acquiring Person if such Person shall, without the
express approval of the Board, thereafter (A) purchase or otherwise become
the
Beneficial Owner of additional shares of Common Stock constituting 1% or
more of
the outstanding shares of Common Stock or (B) institute or announce a tender
or
exchange offer for Common Stock); provided, however, any
transferee (other than the Company, any subsidiary of the Company, any employee
benefit plan of the Company or any trustee in respect thereof acting in such
capacity) of Common Stock by such Person who after such transfer owns 15%
or
more of the Common Stock then outstanding will become an Acquiring
Person.
(b) “Affiliate”
and “Associate” shall have the respective meanings ascribed to such terms
in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange
Act of 1934, as amended.
(c) A
Person
shall be deemed the “Beneficial Owner” of, and shall be deemed to
“beneficially own,” any securities:
|
(i)
|
which
such Person or any of such Person’s Affiliates or Associates beneficially
owns, directly or indirectly;
|
|
(ii)
|
which
such Person or any of such Person’s Affiliates or Associates, 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, (other
than
customary agreements with and between underwriters and selling
group
members with respect to a bona fide public offering of securities),
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 (1) tendered pursuant to a
tender or exchange offer made by such Person or any of such Person’s
Affiliates or Associates until such tendered securities are accepted
for
purchase or exchange or (2) which a Person or any of such Person’s
Affiliates or Associates may be deemed to have the right to acquire
pursuant to any merger or other acquisition agreement between the
Company
and such Person (or one or more of its Affiliates or Associates)
if such
agreement has been approved by the Board of Directors prior
to a Triggering Event; 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 (the “Original Rights”) or pursuant to
Section 11(i) hereof in connection with an adjustment made with
respect to any Original Rights;
|
|
(iii)
|
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), 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, and (B) is not also then reportable
by
such Person on Schedule 13D under the Exchange Act (or any comparable
or
successor report); or
|
|
(iv)
|
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, (other than customary
agreements
with and between underwriters and selling group members with respect
to a
bona fide public offering of securities) for the purpose of acquiring,
holding, voting (except pursuant to a revocable proxy as described
in the
proviso to subparagraph (ii) of this paragraph (c)) or disposing of
any voting securities of the Company; provided, however,
that nothing in this paragraph (c) shall cause a Person engaged
in the
business as an underwriter of securities to be deemed the “Beneficial
Owner” of, or to “beneficially own,” any securities acquired through such
Person’s participation in good faith in a firm commitment underwriting
until the expiration of forty days after the date of such
acquisition.
|
(d) “Business
Day” shall mean any day other than a Saturday, Sunday or a day on which
banking institutions in the State of New York are authorized or obligated
by law
or executive order to close.
(e) “Close
of
Business” on any given date shall mean 5:00 p.m., New York time, on such
date; provided, however, that if such date is not a Business Day
it shall mean 5:00 p.m., New York time, on the next succeeding Business
Day.
(f) “Common
Stock” shall mean the common stock, par value $0.10 per share, of the
Company, except that “Common Stock” when used with reference to any Person other
than the Company shall mean the capital stock of such Person with the greatest
voting power, or the equity securities or other equity interest having power
to
control or direct the management, of such Person.
(g) “Distribution
Date” shall mean the earlier of (i) the Close of Business on the 10th
business day (or such later date as the Board of Directors shall determine)
after the Stock Acquisition Date and (ii) the Close of Business on the 10th
business day (or such later date as the Board of Directors shall determine)
after the date that a tender or exchange offer by 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) is first published or sent or given within the meaning of Rule 14d-2(a)
of
the General Rules and Regulations under the Exchange Act, if upon consummation
thereof, such Person would be the Beneficial Owner of 15% or more of the
shares
of Common Stock then outstanding.
(h) “Exchange
Act” shall mean the Securities and Exchange Act of 1934, as
amended.
(i) “Expiration
Date” shall mean the earlier of (i) the Final Expiration Date, or
(ii) the time at which the Rights are redeemed as provided in
Section 24 hereof.
(j) “Final
Expiration Date” shall mean the Close of Business on August 8,
2017.
(k) “Grandfathered
Stockholder” shall mean at any time the ▇▇▇▇▇ Family or any member of the
▇▇▇▇▇ Family; provided, however, that the ▇▇▇▇▇ Family shall not
be a Grandfathered Stockholder if the ▇▇▇▇▇ Family or any member of the ▇▇▇▇▇
Family makes an acquisition of Common Stock that would increase the aggregate
ownership of the ▇▇▇▇▇ Family to 45% or more of the outstanding Common Stock
or
such amount in excess of 45% as may be approved by the Company’s Board of
Directors.
(l) “▇▇▇▇▇
Family” shall mean ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, his children ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, any of their future spouses or children, any trust
for the benefit of any of them, any trustee of such a trust (only insofar
as the
Common Stock is held by such trustee for the benefit of any of them) and
any
Affiliate or Associate of any of the foregoing.
(m) “Person”
shall mean any individual, firm, corporation, partnership or other
entity.
(n) “Preferred
Stock” shall mean shares of Series A Junior Participating Preferred Stock,
par value $1.00 per share, of the Company and, to the extent that there are
not
a sufficient number of shares of Series A Junior Participating Preferred
Stock
authorized to permit the full exercise of the Rights, any other series of
preferred stock, no par value, of the Company designated for such purpose
containing terms substantially similar to the terms of the Series A Junior
Participating Preferred Stock.
(o) “Purchase
Price” shall have the meaning set forth in Section 7(b)
hereof.
(p) “Record
Date” shall have the meaning set forth in the recital at the beginning of
this Agreement.
(q) “Redemption
Date” shall mean the time at which the Board of Directors of the Company
orders redemption of the Rights as provided in Section 24 of this
Agreement.
(r) “Redemption
Price” shall have the meaning set forth in Section 24(a) of this
Agreement.
(s) “Right”
shall have the meaning set forth in the recitals at the beginning of this
Agreement.
(t) “Rights
Certificates” shall mean one or more rights certificates, in substantially
the form of Exhibit B hereto.
(u) “Rights
Dividend Declaration Date” shall have the meaning set forth in Recital
A.
(v) “Section 11(a)(ii) Event”
shall mean any event described in Section 11(a)(ii) hereof.
(w) “Section 13
Event” shall mean any event described in clauses (x), (y) or (z) of
Section 13(a) hereof.
(x) “Securities
Act” shall mean the Securities Act of 1933, as amended.
(y) “Stock
Acquisition Date” shall mean the first date of public announcement (which,
for purposes of this definition, shall include, without limitation, a report
filed pursuant to Section 13(d) under the Exchange Act) by the Company or
an Acquiring Person that an Acquiring Person has become such; provided, however,
if such person is determined not to have become an Acquiring Person pursuant
to
Section 1(a) hereof, then no Stock Acquisition Date shall be deemed to have
occurred.
(z) “Subsidiary”
shall mean, with reference to any Person, any corporation or other entity
of
which an amount of voting securities sufficient to elect at least a majority
of
the directors or Persons having similar authority of such corporation or
other
entity is beneficially owned, directly or indirectly, by such Person, or
otherwise controlled by such Person.
(aa) “Summary
of Rights” shall mean the summary of rights to purchase Preferred Stock, in
substantially the form of Exhibit C hereto.
(bb) “Triggering
Event” shall mean any Section 11(a)(ii) Event or any Section 13
Event.
Section 2. Appointment
of Rights Agent. The Company hereby appoints the Rights
Agent to act as agent for the Company in accordance with the terms and
conditions hereof, and the Rights Agent hereby accepts such
appointment. The Company may from time to time appoint such co-Rights
Agents as it may deem necessary or desirable.
Section 3. Issue
of Rights Certificates.
(a) Until
the
Distribution Date, (i) the Rights will be evidenced (subject to the
provisions of 3(b) hereof) by the certificates for the Common Stock registered
in the names of the 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 (ii) the Rights will be transferable only in connection
with the transfer of the underlying shares of Common Stock (including a transfer
to the Company). As soon as practicable after the Distribution Date,
the Rights Agent will 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 records of
the
Company, one or more Rights Certificates, evidencing one Right for each share
of
Common Stock so held, subject to adjustment as provided herein. As of
and after the Distribution Date, the Rights will be evidenced solely by such
Rights Certificates.
(b) On
the
Record Date, or as soon as practicable thereafter, the Company will send
a copy
of a Summary of Rights, by first-class, postage-prepaid mail, to each record
holder of shares of Common Stock as of the Close of Business of the Record
Date,
at the address of such holder shown on the records of the
Company. With respect to certificates for Common Stock outstanding as
of the Record Date, until the Distribution Date, the Rights will be evidenced
by
such certificates registered in the names of the holders thereof together
with a
copy of the Summary of Rights attached thereto. Until the
Distribution Date (or the earlier of the Redemption Date or the Final Expiration
Date), the surrender for transfer of any certificate for Common Stock
outstanding on the Record Date, with or without a copy of the Summary of
Rights
attached thereto, shall also constitute the transfer of the Rights associated
with such Common Stock.
(c) Rights
shall
be issued in respect of all shares of Common Stock which are issued after
the
Record Date but prior to the earlier of the Distribution Date or the Expiration
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 Amended and Restated Rights Agreement between ICU Medical,
Inc.
and American Stock Transfer & Trust Company, as Rights Agent (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 ICU Medical,
Inc. 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. ICU Medical, Inc. 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.
If
the
Company purchases or acquires any Common Stock after the Record Date but
before
the Distribution Date, any Rights associated with that Common Stock shall
be
deemed canceled so that the Company shall not be entitled to exercise any
Rights
associated with the Common Stock which are no longer
outstanding. With respect to such certificates containing the
foregoing legend, until the earlier of (i) the Distribution Date or
(ii) the Expiration Date, the Rights associated with the Common Stock
represented by such certificates shall be evidenced by such certificates
alone
and registered holders of Common Stock shall also be the registered 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.
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 be substantially in the form of Exhibit
B to this Agreement 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 on which the Rights may from time to time be listed, or to
conform to usage. Subject to the provisions of Section 11 and
Section 22 hereof, the Rights Certificates, whenever distributed, shall be
dated as of the Record Date and on their face shall entitle the holders thereof
to purchase such number of one-hundredths of a share of Preferred Stock as
shall
be set forth therein at the price set forth therein (such exercise price
per one
one-hundredth of a share, the “Purchase Price”), but the amount and 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 Persons 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 null and void in the circumstances specified
in
Section 7(e) of such Agreement.
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 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 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; and any Rights Certificate 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 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.
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 registered holder to purchase
a like number of one one-hundredths 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 registered holder desiring to transfer, split up,
combine or exchange any Rights Certificate or Certificates shall make such
request in writing delivered to the Rights Agent, and shall surrender the
Rights
Certificate or Certificates to be transferred, split up, combined or exchanged
at the principal 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 registered 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 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) Upon
receipt
by the Company and the Rights Agent of evidence reasonably satisfactory to
them
of the loss, theft, destruction or mutilation of a Rights Certificate, and,
in
case of loss, theft or destruction, of indemnity or security reasonably
satisfactory to them, 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 registered owner 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 registered 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) and Section 24(a) 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 principal office or offices of the Rights Agent designated for such purpose,
together with payment of the aggregate Purchase Price with respect to the
total
number of one one-hundredths of a share of Preferred 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 Final
Expiration Date, or (ii) the Expiration Date.
(b) The
Purchase
Price for each one one-hundredth of a share of Preferred Stock pursuant to
the
exercise of a Right shall initially be $225, 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-hundredth of a share of Preferred Stock (or other 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, 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-hundredths 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 depository agent, requisition from the depository agent
depository receipts representing such number of one one-hundredths 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 depository agent) and the Company will direct the
depository 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) after receipt of such
certificates or depository receipts, cause the same to be delivered to or
upon
the order of the registered holder of such Rights Certificate registered
in such
name or names as may be designated by such holder, and (iv) after receipt
thereof, deliver such cash, if any, to or upon the order of the registered
holder of such Rights Certificate. The payment of the Purchase Price
(as such amount may be reduced pursuant to Section 11(a)(iii) hereof)
may be made (x) in cash or by certified bank check or bank draft payable
to the
order of the Company, or (y) by delivery of a certificate or certificates
(with
appropriate stock powers executed in blank attached thereto) evidencing a
number
of shares of Common Stock equal to the then Purchase Price divided by the
closing price (as determined pursuant to Section 11(d) hereof) per share of
Common Stock on the Trading Day immediately preceding the date of such
exercise. 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
registered holder of any Rights Certificate shall exercise less than all
the
Rights evidenced thereby, a new Rights Certificate evidencing Rights equivalent
to the Rights remaining unexercised shall be issued by the Rights Agent and
delivered to, or upon the order of, the registered holder of such Rights
Certificates, 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 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 the
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 the avoidance of this
Section 7(e), shall become null and void without any further action and no
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 insure
that the provisions of this Section 7(e) and Section 4(b) hereof are
complied with, but shall have no liability to any holder of Rights Certificates
or other Person as a result of its failure to make any determinations with
respect to an Acquiring Person or its Affiliates, Associates or transferees
hereunder.
(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 registered
holder upon the occurrence of any purported exercise as set forth in this
Section 7 unless such registered holder shall have (i) properly
completed and signed the certificate 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 all canceled Rights Certificates to the Company, or shall,
at the
written request of the Company, destroy such canceled Rights Certificates,
and
in such case shall deliver a certificate of destruction thereof to the
Company.
Section 9. Reservation
and Availability of 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
quoted on an automated quotation system, the Company shall use its best efforts
to cause, from and after such time as the Rights become exercisable, all
shares
reserved for such issuance to be listed on such exchange or quoted on an
automated 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, or as soon as is required by law following
the Distribution Date, as the case may be, a registration statement under
the
Securities 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 Securities Act) until the earlier of (A)
the
date as of which the Rights are no longer exercisable for such securities,
and
(B) the date of the expiration of the Rights. 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 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
issue a public announcement stating, and notify the Rights Agent, that the
exercisability of the Rights has been temporarily suspended, as well as a
public
announcement and notification to the Rights Agent at such time as the suspension
is no longer in effect. Notwithstanding any provision of this
Agreement to the contrary, the Rights shall not be exercisable in any
jurisdiction 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-hundredths of a share of Preferred Stock (and, following
the occurrence of a Triggering Event, Common Stock and/or other securities)
delivered upon exercise of Rights shall, at the time of delivery of the
certificates for such shares (subject to payment of the Purchase Price),
be duly
and validly authorized and issued and fully paid and nonassessable.
(e) The
Company
further covenants and agrees that it will pay when due and payable any and
all
federal and state transfer taxes and charges which may be payable in respect
of
the issuance or delivery of the Rights Certificates and of any certificates
for
a number of one one-hundredths of a share of Preferred Stock (or Common Stock
and/or other securities, as the case may be) upon the exercise of
Rights. The Company shall not, however, be required to pay any
transfer tax which may be payable in respect of any transfer or delivery
of
Rights Certificates to a Person other than, or the issuance or delivery of
a
number of one one-hundredths 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 registered holder of the Rights Certificates evidencing Rights
surrendered for exercise or to issue or deliver any certificates for a number
of
one one-hundredths of a share of Preferred Stock (or Common Stock and/or
other
securities, as the case may be) in a name other than that of the registered
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 Certificates 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-hundredths 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 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 July 30, 2007 (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
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) 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, other than pursuant to an offer for all outstanding shares
of
Common Stock at a price and upon such terms and conditions as a majority
of the
Board of Directors determines to be in the best interests of the Company
and its
stockholders, other than such Acquiring Person, its Affiliates and its
Associates, then, promptly following the occurrence of such a
Section 11(a)(ii) Event, the Company and, to the extent necessary or
appropriate, the Acquiring Person and its Affiliates and Associates, shall
make
proper provision 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-hundredths 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-hundredths of a share of Preferred Stock for which
a
Right was exercisable immediately prior to the first occurrence of a
Section 11(a)(ii) Event, and (y) dividing that product (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, the “Adjustment Shares”); provided, however, that
if the transaction that would otherwise give rise to the foregoing adjustment
is
also subject to Section 13 hereof, then only the provisions of Section 13
hereof
shall apply and no adjustment shall be made pursuant to this Section
11(a)(ii).
(iii) In
the event that the number of shares of Common Stock which are authorized
by the
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 shall: (A)
determine the excess of (1) the value of the Adjustment Shares issuable upon
the
exercise of a Right (the “Current Value”) over (2) 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 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 which the Board of Directors of the Company has deemed to
have
the same value as shares of Common Stock (such shares of preferred stock,
“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, where such aggregate value has been determined
by
the Board of Directors of the Company based upon the advice of a nationally
recognized investment banking firm selected by the Board of Directors of
the
Company; provided, however, if the Company shall not have made
adequate provision to deliver the Current Value pursuant to clause (B) above
within 30 days following the later of (x) the first occurrence of a
Section 11(a)(ii) Event and (y) the date on which the Company’s right
of redemption pursuant to Section 24(a) expires (the later of (x) and (y)
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, 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 of the Company shall determine 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 30 day period set forth above may
be
extended to the extent necessary, but not more than 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
period, as it may be extended, the “Substitution Period”). To
the extent that the Company determines that some action need be taken pursuant
to the first and/or second sentences of this Section 11(a)(iii), the
Company (x) shall provide, subject to Section 7(e) hereof, that such action
shall apply uniformly to all outstanding Rights, and (y) may suspend the
exercisability of the Rights until the expiration of the Substitution Period
in
order to seek any authorization of additional shares and/or to decide the
appropriate form of distribution to be made pursuant to such first sentence
and
to determine the value thereof. In the event of any such suspension,
the Company shall issue a public announcement stating that the exercisability
of
the Rights has been temporarily suspended, as well as a public announcement
at
such time as the suspension is no longer in effect. For purposes of
this Section 11(a)(iii), the value of the Common Stock shall be the current
market price (as determined pursuant to Section 11(d) hereof) per share of
the Common Stock on the Section 11(a)(ii) Trigger Date and the value
of any “common stock equivalent” shall be deemed to have the same value
as 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 holders of Preferred Stock entitling them to subscribe for or purchase
(for a period expiring within 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 (as determined
pursuant to Section 11(d) hereof) per share of Preferred Stock on such
record date, the Purchase Price to be in effect after such record date shall
be
determined by multiplying the Purchase Price in effect immediately prior
to such
record date by a fraction, the numerator of which shall be the number of
shares
of Preferred Stock outstanding on such record date, plus the number of shares
of
Preferred Stock which the aggregate offering price of the total number of
shares
of Preferred Stock and/or equivalent preferred stock so to be offered (and/or
the aggregate initial conversion price of the convertible securities so to
be
offered) would purchase at such current market price, and the denominator
of
which shall be the number of shares of Preferred Stock outstanding on such
record date, plus the number of additional shares of Preferred Stock and/or
equivalent preferred stock to be offered for subscription or purchase (or
into
which the convertible securities so to be offered are initially
convertible). In case such subscription price may be paid by delivery
of consideration part or all of which may be in a form other than cash, the
value of such consideration shall be as determined in good faith by the Board
of
Directors of the Company, whose determination shall be described in a statement
filed with the Rights Agent and shall be binding on the Rights Agent and
the
holders of the Rights. Shares of Preferred Stock owned by or held for
the account of the Company shall not be deemed outstanding for the purpose
of
any such computation. Such adjustment shall be made successively
whenever such a record date is fixed, and in the event that such rights or
warrants are not so issued, the Purchase Price shall be adjusted to be the
Purchase Price which would then be in effect if such record date had not
been
fixed.
(c) In
case the
Company shall fix a record date for a distribution to all holders of Preferred
Stock (including any such distribution made in connection with a consolidation
or merger in which the Company is the continuing 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, options or warrants
(excluding those referred to in Section 11(b) hereof), then, in each such
case, 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 of the Company, whose determination
shall be described in a statement filed with the Rights Agent) of the portion
of
the cash, assets or evidences of indebtedness so to be distributed or of
such
subscription rights or warrants applicable to a share of Preferred Stock
and the
denominator of which shall be such current market price (as determined pursuant
to Section 11(d) hereof) 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 30 consecutive Trading
Days (as such term is hereinafter defined) immediately prior to such date,
and
for purposes of computations made pursuant to
Section 11(a)(iii) hereof, the “current market price” per share
of 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 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 of securities convertible into shares of such
Common
Stock (other than the Rights), or (B) any subdivision, combination or
reclassification of such Common Stock, and prior to the expiration of the
requisite 30 Trading Day or 10 Trading Day period, as set forth above, after
the
ex-dividend date for such dividend or distribution, or the record date for
such
subdivision, combination or reclassification, then, and in each such case,
the
“current market price” shall be properly adjusted to take into account
ex-dividend trading. The closing price for each day shall be the last
sale price, regular way, or, in case no such sale takes place on such day,
the
average of the closing bid and asked prices, regular way, in either case
as
reported in the principal consolidated transaction reporting system with
respect
to securities listed or admitted to trading on the National Association of
Securities Dealers, Inc. Automated Quotations System (“Nasdaq”) Stock
Market or, if the shares of Common Stock are not listed or admitted to trading
by the Nasdaq Stock Market, 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 or, 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 the Over the Counter
Bulletin Board or such other system then in use, or, if on any such date
the
shares of Common Stock are not quoted by any such organization, the average
of
the closing bid and asked prices as furnished by a professional market maker
making a market in the Common Stock selected by the Board of Directors of
the
Company. If on any such date no market maker is making a market in
the Common Stock, the fair value of such shares on such date as determined
in
good faith by the Board of Directors of the Company shall be
used. The term “Trading Day” shall mean a day on which the
principal national securities exchange on which the shares of Common Stock
are
listed or admitted to trading is open for the transaction of business or,
if the
shares of Common Stock are not listed or admitted to trading on any national
securities exchange, a Business Day. If the Common Stock is not
publicly held or not so listed or traded, “current market
price” per share shall mean the fair value per share as determined in good
faith by the Board of Directors of the Company, whose determination shall
be
described in a statement filed with the Rights Agent and shall be conclusive
for
all purposes.
(ii) For
the purpose of any computation hereunder, the “current market price” per
share 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 100 (as such number may be appropriately adjusted for such
events as stock splits, stock dividends and recapitalizations with respect
to
the Common Stock occurring after July 30, 2007) 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 of the Company, 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-hundredth of a share of
Preferred Stock shall be equal to the “current market price” of one share
of Preferred Stock divided by 100.
(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
ten-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 years
from the date of the transaction which mandates such adjustment, or (ii) or
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-hundredths 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-hundredths of a share
of
Preferred Stock (calculated to the nearest one-millionth) obtained by
(i) multiplying (x) the number of one one-hundredths 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-hundredths 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-hundredths
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-ten-thousandth) 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 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 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 record 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 of record 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 of one
one-hundredths of a share of Preferred Stock issuable upon the exercise of
the
Rights, the Rights Certificates issued may continue to express the Purchase
Price per one one-hundredth of a share and the number of one one-hundredths
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 stated value, if any, of the number of one one-hundredths
of a
share of Preferred 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
nonassessable such number of one one-hundredths of a share of Preferred Stock
at
such adjusted Purchase Price.
(l) In
any case
in which this Section 11 shall require that an adjustment in the Purchase
Price be made effective as of a record date for a specified event, the Company
may elect to defer until the occurrence of such event the issuance to the
holder
of any Right exercised after such record date the number of one one-hundredths
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-hundredths 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 ▇▇▇▇
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 of the Company 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,
(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
stockholders.
(n) The
Company
covenants and agrees that it shall not, at any time after the Distribution
Date,
(i) consolidate with any other Person (other than a Subsidiary of the
Company 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 rights, warrants or
other
instruments or securities outstanding or agreements in effect which would
substantially diminish or otherwise eliminate the benefits intended to be
afforded by the Rights 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 a dividend on the outstanding shares of Common
Stock payable in shares of Common Stock, (ii) subdivide the outstanding shares
of Common Stock, or (iii) combine the outstanding shares of Common Stock
into a
smaller number of shares, then each share of Common Stock outstanding after
such
dividend, subdivision or combination shall continue to have a Right associated
therewith, and the Purchase Price following any such event shall be
proportionately adjusted to equal the result obtained by multiplying the
Purchase Price 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. The adjustment provided for
in the preceding sentence shall be made successively whenever such a dividend
is
paid or such a subdivision or combination is effected.
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
or cause the Rights Agent to mail a brief summary thereof to each holder
of a
Rights Certificate (or, if prior to the Distribution Date, to each holder
of a
certificate representing shares of Common Stock) in accordance with
Section 26 hereof. Notwithstanding the foregoing sentence, the
failure of the Company to make such certification or give such notice shall
not
affect the validity of such adjustment or the force or effect of the requirement
for such adjustment. The Rights Agent shall be fully protected in
relying on any such certificate and on any adjustment therein
contained.
Section 13. Consolidation,
Merger or Sale or Transfer of Assets or Earning Power.
(a) In
the event
that, following the Stock Acquisition Date, directly or indirectly, (x) the
Company shall consolidate with, or merge with and into, any other Person,
and
the Company shall not be the continuing or surviving corporation of such
consolidation or merger, (y) any Person 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, then, and in each
such
case, the Company and the Principal Party (as such term is herein defined)
and
its Affiliates and Associates shall make proper provision 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, nonassessable and freely
tradable 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 (l)
multiplying the then current Purchase Price by the number of one one-hundredths
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-hundredths 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 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 transactions 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), 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, and if no securities are so issued, the
Person
that is the other party to such merger or 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; 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 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; and (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.
(c) The
Company
shall not consummate any such consolidation, merger, sale or transfer unless
the
Principal Party shall have a sufficient number of authorized shares of its
Common Stock which have not been issued or reserved for issuance to permit
the
exercise in full of the Rights in accordance with 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
providing for the terms set forth in paragraphs (a) and (b) of this
Section 13, that all rights of first refusal or preemptive rights in
respect of the issuance of Common Shares of such Principal Party upon exercise
of outstanding Rights have been waived, that there are no rights, warrants,
instruments or securities outstanding or any agreements or arrangements which,
as a result of the consummation of such transaction, would eliminate or
substantially diminish the benefits intended to be afforded by the Rights
and
that such transaction shall not result in a default by such Principal Party
under this Agreement, and further providing that, as soon as practicable
after
the date of any consolidation, merger or sale of assets mentioned in paragraph
(a) of 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 Securities
Act)
until the Expiration Date and similarly comply with applicable state securities
laws; and
(ii) will
deliver
to 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.
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 been exercised
shall thereafter become exercisable in the manner described in
Section 13(a).
Section 14. Fractional
Rights and Fractional Shares.
(a) The
Company
shall not be required to issue fractions of Rights or to distribute Rights
Certificates which evidence fractional Rights. In lieu of such
fractional Rights, there shall be paid to the registered 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 Nasdaq Stock Market or, if the Rights are not listed or admitted
to trading on the Nasdaq Stock Market, 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, but are quoted on an interdealer quotation system, the
average of the high and low sale prices (if a National Market tier security)
or
the average of the representative bid and asked prices (in all other cases)
on
such day as reported by such quotation system, or, if the Common Stock is
otherwise traded in the over-the-counter market, the average of the high
bid and
low asked quotations on such day, 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 of the Company. 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
of the
Company shall be used.
(b) The
Company
shall not be required to issue fractions of shares of Preferred Stock (other
than fractions which are integral multiples of one one-hundredth of a share
of
Preferred Stock, which may, at the option of the Company, be evidenced by
depository receipts) 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-hundredth of a share of Preferred
Stock). In lieu of fractional shares of Preferred Stock that are not
integral multiples of one one-hundredth of a share of Preferred Stock, the
Company may pay to the registered 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-hundredth of a share of
Preferred Stock. For purposes of this Section 14(b), the current
market value of one one-hundredth of a share of Preferred Stock shall be
one
one-hundredth 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 upon exercise of the Rights or upon any
exchange of Rights pursuant to Section 23 hereof, 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 registered
holders
of Rights Certificates at the time such Rights are exercised as herein provided
(or at the time such Rights are exchanged as provided in Section 23 hereof,
as
the case may be) 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 the closing price of one share of Common Stock (as determined pursuant
to
Section 11(d)(i) hereof) for the Trading Day immediately prior to the
date of such exercise.
(d) The
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, except the rights of action given to the Rights Agent under Section
18 hereof, are vested in the respective registered holders of the Rights
Certificates (and, prior to the Distribution Date, the registered holders
of the
Common Stock); and any registered 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 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 holders of Rights, it is
specifically acknowledged that the holders of Rights would not have an adequate
remedy at law for any breach of this Agreement and shall be entitled to specific
performance of the obligations hereunder and injunctive relief against actual
or
threatened violations of the obligations hereunder of any Person (including,
without limitation, the Company) 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 registry
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
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 obligation;
provided, however, the Company must use its best efforts to have any such
order, decree or ruling lifted or otherwise overturned as soon as
possible.
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-hundredths
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 reasonable compensation for all services
rendered by it hereunder and, from time to time, on demand of the Rights
Agent,
its reasonable expenses and counsel fees and disbursements and other
disbursements incurred in the administration and execution of this Agreement
and
the exercise and performance of its duties hereunder. The Company
also agrees to indemnify the Rights Agent for, and to hold it harmless against,
any loss, liability, or expense, incurred without negligence, bad faith or
willful misconduct on the part of the Rights Agent, for anything done or
omitted
by the Rights Agent in connection with the acceptance and administration
of this
Agreement, including the costs and expenses of defending against any claim
of
liability in the premises. In no case will the Rights Agent be liable
for special, indirect, incidental or consequential loss or damage of any
kind
whatsoever, even if the Rights Agent has been advised of the likelihood of
such
loss or damage.
(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 it 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 or
acknowledged, by the proper Person or Persons or otherwise upon the advice
of
counsel as set forth in Section 20 hereof.
Section 19. Merger
or Consolidation or Change of Name of Rights Agent.
(a) Any
Person
into which the Rights Agent or any successor Rights Agent may be merged or
with
which it may be consolidated, or any Person resulting from any merger or
consolidation to which the Rights Agent or any successor Rights Agent shall
be a
party, or any Person succeeding to the shareholder 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,
however, that such corporation would be eligible for appointment
as a
successor Rights Agent under the provisions of Section 21
hereof. In case at the time such successor Rights Agent shall succeed
to the agency created by this Agreement, any of the Rights Certificates shall
have been countersigned but not delivered, any such successor Rights Agent
may
adopt the countersignature of a predecessor Rights Agent and deliver such
Rights
Certificates so countersigned; and in case at that time any of the Rights
Certificates shall not have been countersigned, any successor Rights Agent
may
countersign such Rights Certificates either in the name of the predecessor
or in
the name of the successor Rights Agent; and in all such cases such Rights
Certificates shall have the full force provided in the Rights Certificates
and
in this Agreement.
(b) In
case at
any time the name of the Rights Agent shall be changed and at such time any
of
the Rights Certificates shall have been countersigned but not delivered,
the
Rights Agent may adopt the countersignature under its prior name and deliver
Rights Certificates so countersigned; and in case at that time any of the
Rights
Certificates shall not have been countersigned, the Rights Agent may countersign
such Rights Certificates either in its prior name or in its changed name;
and in
all such cases such Rights Certificates shall have the full force provided
in
the Rights Certificates and in this Agreement.
Section 20. Duties
of Rights Agent. The Rights Agent undertakes to perform
the duties and obligations imposed by this Agreement upon the following terms
and conditions, by all of which the Company and the holders of Rights
Certificates, by their acceptance thereof, shall be bound:
(a) The
Rights
Agent may consult with legal counsel (who may be legal counsel for the Company),
and the 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 suffering any action hereunder, such fact or matter (unless other
evidence in respect thereof be herein specifically prescribed) may be deemed
to
be conclusively proved and established by a certificate signed by the Chairman
of the Board, the President, any Vice President, the Treasurer, any Assistant
Treasurer, the Secretary or any Assistant Secretary of the Company and delivered
to the Rights Agent; and such certificate shall be full authorization to
the
Rights Agent for any action taken or suffered in good faith by it under the
provisions of this Agreement in reliance upon such certificate.
(c) The
Rights
Agent shall be liable hereunder only for its own negligence, bad faith or
willful misconduct.
(d) The
Rights
Agent shall not be liable for or by reason of 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
change in the exercisability of the Rights or 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 or Preferred
Stock 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 any one of 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
under
this Agreement, and it shall not be liable for any action taken or suffered
to
be taken by it in good faith in accordance with instructions of any such
officer. Any application by the Rights Agent for written instructions
from the Company may, at the option of the Rights Agent, set forth in writing
any action proposed to be taken or omitted by the Rights Agent under this
Rights
Agreement and the date on and/or after which such action shall be taken or
such
omission shall be effective. The Rights Agent shall not be liable for
any action taken by, or omission of, the Rights Agent in accordance with
a
proposal included in any such application on or after the date specified
in such
application (which date shall not be less than five Business Days after the
date
any officer of the Company actually receives such application, unless any
such
officer shall have consented in writing to an earlier date) unless, prior
to
taking any such action (or the effective date in the case of an omission),
the
Rights Agent shall have received written instructions in response to such
application specifying the action to be taken or omitted.
(h) The
Rights
Agent and any stockholder, director, officer or employee of the Rights Agent
may
buy, sell or deal in any of the Rights or other securities of the Company
or
become pecuniarily interested in any transaction in which the Company may
be
interested, or contract with or lend money to the Company or otherwise act
as
fully and freely as though it were not Rights Agent under this
Agreement. Nothing herein shall preclude the Rights Agent from acting
in any other capacity for the Company or for any other legal
entity.
(i) The
Rights
Agent may execute and exercise any of the rights or powers hereby vested
in it
or perform any duty hereunder either itself or by or through its attorneys
or
agents, and the Rights Agent shall not be answerable or accountable for any
act,
default, neglect or misconduct of any such attorneys or agents or for any
loss
to the Company resulting from any such act, default, neglect or misconduct;
provided, however, reasonable care was exercised in the selection and continued
employment thereof.
(j) No
provision
of this Agreement shall require the Rights Agent to expend or risk its own
funds
or otherwise incur any financial liability in the performance of any of its
duties hereunder or in the exercise of its rights if there shall be reasonable
grounds for believing that repayment of such funds or adequate indemnification
against such risk or liability is not reasonably assured to it.
(k) If,
with
respect to any Rights Certificate surrendered to the Rights Agent for exercise
or transfer, the certificate attached to the form of assignment or form of
election to purchase, as the case may be, has 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) At
any time
and from time to time after the Distribution Date, upon the request of the
Company, the Rights Agent shall promptly deliver to the Company a list, as
of
the most recent practicable date (or as of such earlier date as may be specified
by the Company), of the holders of record of Rights.
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 30 days’ notice in writing mailed to the Company, and to each transfer
agent of the Common Stock and Preferred Stock, by registered or certified
mail,
and to the holders of the Rights Certificates by first-class
mail. The Company may remove the Rights Agent or any successor Rights
Agent upon 30 days’ notice in writing, mailed to the Rights Agent or successor
Rights Agent, as the case may be, and to each transfer agent of the Common
Stock
and Preferred Stock, by registered or certified mail, and to the holders
of the
Rights Certificates by first-class mail. If the Rights Agent shall
resign or be removed or shall otherwise become incapable of acting, resigning,
removed or incapacitated, the Rights Agent shall remit to the Company, or
to any
successor Rights Agent designated by the Company, all books, records, funds,
certificates and other documents and instruments of any kind then in its
possession which were acquired or created by such resigning, removed or
incapacitated Rights Agent in connection with its services as Rights Agent
hereunder, and shall thereafter be discharged from all further duties and
obligations hereunder. Following notice of such removal, resignation or
incapacity, the Company shall appoint a successor to the Rights
Agent. If the Company shall fail to make such appointment within a
period of 30 days after giving notice of such removal or after it has been
notified in writing of such resignation or incapacity by the resigning or
incapacitated Rights Agent or by the holder of a Rights Certificate (who
shall,
with such notice, submit his Rights Certificate for inspection by the Company),
then any registered holder of any Rights Certificate may apply to any court
of
competent jurisdiction for the appointment of a new Rights Agent. Any
successor Rights Agent, whether appointed by the Company or by such a court,
shall be either (a) a legal business entity organized and doing business
under the laws of the United States or of any state of the United States,
in
good standing, which is authorized under such laws to exercise corporate
trust
or stock transfer powers and is subject to supervision or examination by
federal
or state authority and which has at the time of its appointment as Rights
Agent
a combined capital and surplus of at least $50,000,000 or (b) an Affiliate
of a legal business entity described in clause (a) of this
sentence. After appointment, the successor Rights Agent shall be
vested with the same powers, rights, duties and responsibilities as if it
had
been originally named as Rights Agent without further act or deed; but the
predecessor Rights Agent shall deliver and transfer to the successor Rights
Agent any property at the time held by it hereunder, and execute and deliver
any
further assurance, conveyance, act or deed necessary for the
purpose. Not later than the effective date of any such appointment,
the Company shall file notice thereof in writing with the predecessor Rights
Agent and each transfer agent of the Common Stock and the Preferred Stock,
and
mail a notice thereof in writing to the registered holders of the Rights
Certificates. Failure to give any notice provided for in this
Section 21, however, or any defect therein, shall not affect the legality
or validity of the resignation or removal of the Rights Agent or the appointment
of the successor Rights Agent, as the case may be.
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/or 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 warrants or under any employee
plan
or arrangement, or upon the exercise, conversion or exchange of securities
hereinafter issued by the Company, and (b) may, in any other case, if deemed
necessary or appropriate by the Board of Directors, of the Company, issue
Rights
Certificates representing the appropriate number of Rights in connection
with
such issuance or sale; provided, however, that (i) no such
Rights Certificate shall be issued if, and to the extent that, the Company
shall
be advised by counsel that such issuance would create a significant risk
of
material adverse tax consequences to the Company or the Person to whom such
Rights Certificate would be issued, or would create a significant
risk of or result in such options’ or employee plans’ or arrangements’ failing
to qualify for otherwise available special tax treatment 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. Exchange.
(a) Subject
to
applicable laws, rules and regulations, and subject to subsection (c) below,
the
Company’s Board of Directors may, at their 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 Sections 7(e) and/or 11(a)(ii) hereof) for
shares of Common Stock at an exchange ratio of one share of Common Stock
per
Right, appropriately adjusted to reflect any stock split, stock dividend
or
similar transaction occurring after July 30, 2007 (such exchange ratio being
hereinafter referred to as the “Exchange Ratio”). Notwithstanding the
foregoing, the Board of Directors shall not be empowered to effect
such exchange at any time after any Person (other than the Company, any
Subsidiary of the Company, any employee benefit plan of the Company or any
such
Subsidiary or any Person holding shares of Common Stock for or pursuant to
any
such plan), together with all Affiliates and Associates of such Person, becomes
the Beneficial Owner of Shares of Common Stock aggregating 50% or more of
the
shares of Common Stock then outstanding.
(b) Immediately
upon the action of the Company’s Board of Directors ordering the
exchange of any Rights pursuant to paragraph (a) of this Section 23 and
without any further action and without any notice, the right to exercise
such
Rights shall terminate and the only right thereafter of a holder of such
Rights
shall be to receive that number of shares of Common Stock equal to the number
of
such Rights held by such holder multiplied by the Exchange Ratio. The
Company shall promptly give public notice of any such exchange; provided,
however, that the failure to give, or any defect in, such notice
shall
not affect the validity of such exchange. The Company shall mail
promptly a notice of any such exchange to all of the holders of such Rights
at
their last addresses as they appear upon the registry books of the Rights
Agent. Any notice which is mailed in the manner herein provided shall
be deemed given, whether or not the holder receives the notice. Each
such notice of exchange will state the method by which the exchange of the
shares of Common Stock for Rights will be effected and, in the event of any
partial exchange, the number of Rights which will be exchanged. Any
partial exchange shall be effected pro rata based on the number of Rights
(other
than Rights which have become void pursuant to the provisions of
Section 7(e) hereof) held by each holder of Rights.
(c) In
the event
that there shall not be sufficient shares of Common Stock issued but not
outstanding or authorized but unissued to permit any exchange of Rights as
contemplated in accordance with this Section 23, the Company shall take all
such action as may be necessary to authorize additional shares of Common
Stock
for issuance upon exchange of the Rights. 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 Common Stock, the Company
shall
substitute for each share of Common Stock that would otherwise be issuable
upon
exchange of a Right, a number of shares of Preferred Stock or fraction thereof
such that the current per share market price of one share of Preferred Stock
multiplied by such number or fraction is equal to the current per share market
price of one share of Common Stock as of the date of issuance of such share
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 value of
a whole
share of Common Stock. For the purposes of this paragraph (d), the
current market value of a whole share of Common Stock shall be the closing
price
of a share of Common Stock (as determined pursuant to the second sentence
of
Section 11(d)(i) hereof) for the Trading Day immediately prior to the
date of exchange pursuant to this Section 23.
(e) The
Company’s Board of Directors may, at their option, at any time before any Person
has become an Acquiring Person, exchange all or part of the then outstanding
Rights for rights of substantially equivalent value, as determined reasonably
and with good faith by the Board of Directors, based upon the advice of one
or
more nationally recognized investment banking firms.
(f) Immediately
upon the action of the Board of Directors ordering the exchange of any Rights
pursuant to subsection (e) of this Section 23 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 rights in exchange therefor as has been determined by the
Board
of Directors in accordance with subsection (e) above. The
Company shall give public notice of any such exchange; provided,
however, that the failure to give, or any defect in, such notice
shall
not affect the validity of such exchange. The Company shall mail a
notice of any such exchange to all of the holders of such Rights at their
last
addresses as they appear upon the registry books of the transfer agent for
the
Common Shares of the Company. Any notice which is mailed in the
manner herein provided shall be deemed given, whether or not the holder receives
the notice. Each such notice of exchange will state the method by
which the exchange of the Rights will be effected.
Section 24. Redemption
and Termination.
(a) The
Board of
Directors of the Company may, at its option, at any time prior to the earlier
of
(i) the occurrence of a Section 11(a)(ii) Event or (ii) the Final
Expiration Date, 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 to reflect any stock split, reverse stock split, reclassification,
stock dividend or similar transaction occurring after July 30, 2007 (such
redemption price being hereinafter referred to as the “Redemption
Price”). The Company may, at its option, pay the Redemption Price
in cash, shares of Common Stock (based on the “current market price,” as defined
in Section 11(d)(i) hereof, of the Common Stock at the time of
redemption) or any other form of consideration deemed appropriate by the
Board
of Directors.
(b) Immediately
upon the action of the Company’s Board of Directors ordering the redemption of
the Rights, evidence of which shall have been filed with the Rights Agent
and
without any further action and without any notice, the right to exercise
the
Rights will terminate and the only right thereafter of the holders of Rights
shall be to receive the Redemption Price for each Right so
held. Promptly after the action of the Board of Directors ordering
the redemption of the Rights, the Company shall give notice of such redemption
to the Rights Agent and the holders of the then outstanding Rights by mailing
such notice to all such holders at each holder’s last address as it appears upon
the registry books of the Rights Agent or, prior to the Distribution Date,
on
the registry books of the Transfer Agent for the Common Stock. Any
notice which is mailed in the manner herein provided shall be deemed given,
whether or not the holder receives the notice. Each such notice of
redemption will state the method by which the payment of the Redemption Price
will be made. Neither the Company nor any of its Affiliates or Associates
may
redeem, acquire or purchase for value any Rights at any time in any manner
other
than that specifically set forth in this Section 24, and other than in
connection with the purchase of Common Stock before the Distribution
Date.
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 of 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, 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 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 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
case any
of the events set forth in Section 11(a)(ii) hereof 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.
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:
ICU
Medical,
Inc.
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Secretary
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
if
sent by first-class mail, postage prepaid, addressed (until another address
is
filed in writing with the Company) as follows:
American
Stock Transfer & Trust Company
▇▇
▇▇▇▇▇▇
▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
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 Company.
Section 27. Supplements
and Amendments. Before the Distribution Date, the Company and the
Rights Agent shall, if a majority of the Board of Directors so directs,
supplement or amend any provision of this Agreement without the approval
of any
holders of certificates representing shares of Common Stock. From and
after the Distribution Date and subject to the penultimate sentence of this
Section 27, the Company and the Rights Agent shall, if a majority of the
Board
of Directors so directs, supplement or amend this Agreement without the approval
of any holders of Rights Certificates in order (i) to cure any ambiguity,
(ii)
to correct or supplement any provision contained herein which may be defective
or inconsistent with any other provisions herein, (iii) to shorten or lengthen
any time period hereunder for any or all purposes (for example, the Company
may
shorten or lengthen the period during which the Rights may be redeemed without
changing the Distribution Date), (iv) to change or supplement the provisions
hereunder in any manner which the Company may deem necessary or desirable,
or
(v) lower the threshold set forth in Section 1(a) to not less than
10%. Notwithstanding the previous sentence, in no event shall any
such supplement or amendment adopted after the Distribution Date adversely
affect the interests of the holders of Rights (other than an Acquiring Person
or
an Affiliate or Associate of an Acquiring Person). In addition, this
Agreement may not be supplemented or amended to lengthen, pursuant to clause
(iii) of the second sentence of this Section 27, (A) a time period relating
to
when the Rights may be redeemed at such time as the Rights are not then
redeemable, or (B) any other time period unless such lengthening is for the
purpose of protecting, enhancing or clarifying the rights of, and/or the
benefits to, the holders of Rights (other than an Acquiring Person or an
Affiliate or Associate of an Acquiring Person). 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 this Section 27, the
Rights Agent shall sign such supplement or amendment. Notwithstanding
anything contained in this Agreement to the contrary, no supplement or amendment
shall be made which changes the Redemption Price, the Final Expiration Date,
the
Purchase Price or the number of shares of Preferred Stock for which a Right
is
exercisable; provided, however, that at any time before the
Distribution Date, the Board of Directors may amend this Agreement to increase
the Purchase Price or to extend the Final Expiration Date. Before the
Distribution Date, the interests of the holders of Rights shall be deemed
coincident with the interests of the holders of Common Stock.
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. Determination
and Actions by the Board of Directors, etc. For all
purposes of this Agreement, any calculation of the number of shares of Common
Stock outstanding at any particular time, including for purposes of determining
the particular percentage of such outstanding shares of Common Stock 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. The Board of Directors of the Company shall have
the exclusive power and authority to administer this Agreement and to exercise
all rights and powers specifically granted to the Board or 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 in good faith,
shall (x) be final, conclusive and binding on the Company, the Rights Agent,
the
holders of the Rights and all other parties, and (y) not subject the Board
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
registered holders of the Rights Certificates (and, prior to the Distribution
Date, registered 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 registered
holders of the Rights Certificates (and, prior to the Distribution Date,
registered 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 24 hereof shall be reinstated
and shall not expire until the Close of Business on the 10th day following
the
date of such determination by the Board of Directors.
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 as of the day and year first above written.
ICU
MEDICAL, INC.
By: /s/
▇▇▇▇▇▇ ▇.
▇▇▇▇▇
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇
Title: Chairman
AMERICAN
STOCK TRANSFER & TRUST COMPANY
By: /s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇
▇.
▇▇▇▇▇▇
Title: Vice
President
Exhibit
A
CERTIFICATE
OF DESIGNATION, PREFERENCES AND RIGHTS
OF
SERIES A
JUNIOR PARTICIPATING PREFERRED STOCK
Pursuant
to
Section 151 of the General Corporation Law of the State of Delaware
We
▇▇▇▇▇▇ ▇.
▇▇▇▇▇, Chairman of the Board, and ▇▇▇▇▇▇▇ ▇. ▇’▇▇▇▇▇, Secretary, of ICU Medical,
Inc., a corporation organized and existing under the General Corporation
Law of
the State of Delaware, in accordance with the provisions of Section 103 thereof,
DO HEREBY CERTIFY:
That
pursuant to the authority conferred upon the Board of Directors by the
Certificate of Incorporation, as amended, of the corporation, the Board of
Directors on July 15, 1997, duly adopted the following resolutions creating
a
series of 200,000 shares of Preferred Stock designated as Series A Junior
Participating Preferred Stock:
RESOLVED,
that pursuant to the authority vested in the Board of Directors of the
corporation by the Certificate of Incorporation, as amended, of the corporation,
the Board of Directors does hereby provide for the issue of a series of Junior
Preferred Stock of the corporation, to be designated “Series A Junior
Participating Preferred Stock” (hereinafter referred to as the “Series A
Preferred Stock”) initially consisting of 200,000 shares, and does hereby fix
and herein state and express the powers, designations, preferences and relative,
participating, optional and other special rights and the qualifications,
limitations and restrictions of the Series A Preferred Stock as
follows:
Section
1. Designation
and
Amount. The shares of such series shall be designated as “Series
A Junior Participating Preferred Stock” and the number of shares constituting
such series shall be 200,000.
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 Junior
Participating Preferred Stock with respect to dividends, the holders of shares
of Series A Junior Participating Preferred Stock shall be entitled to receive,
when, as and if declared by the Board of Directors out of funds legally
available for the purpose, quarterly dividends payable in cash on the 1st
day of
March, June, September and December in each year (each such date being referred
to herein as a “Quarterly Dividend Payment Date”), commencing on the first
Quarterly Dividend Payment Date after the first issuance of a share or
fractional share of a Series A Junior Participating Preferred Stock, in an
amount per share (rounded to the nearest cent) equal to the greater of
(a) $1.00 and (b) subject to the provision for adjustment hereinafter
set forth, 100 times the aggregate per share amount of all cash dividends,
and
100 times the aggregate per share amount (payable in kind) 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 of the corporation
(the “Common Stock”) since the immediately preceding Quarterly Dividend Payment
Date, or, with respect to the first Quarterly Dividend Payment Date, since
the
first issuance of any share or fraction of a share of Series A Junior
Participating Preferred Stock. In the event the corporation shall at
any time after July 15, 1997 (the “Rights Declaration Date”) (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 to which holders of shares of Series A Junior Participating Preferred
Stock were entitled immediately prior to such event under clause (b) of 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
corporation shall declare a dividend or distribution on the Series A Junior
Participating Preferred Stock as provided in paragraph (A) above immediately
after it declares a dividend or distribution on the Common Stock (other than
a
dividend payable in shares of Common Stock); provided that, in the event
no
dividend or distribution shall have been declared on the Common Stock during
the
period between any Quarterly Dividend Payment Date and the next subsequent
Quarterly Dividend Payment Date, a dividend of $1.00 per share on the Series
A
Junior Participating Preferred Stock shall nevertheless be payable on such
subsequent Quarterly Dividend Payment Date.
(C) Dividends
shall begin to accrue and be cumulative on outstanding shares of Series A
Junior
Participating Preferred Stock from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares of Series A Junior Participating
Preferred Stock, unless the date of issue of such shares is prior to the
record
date for the first Quarterly Dividend Payment Date, in which case dividends on
such shares shall being to accrue from the date of issue of such shares,
or
unless the date of issue is a Quarterly Dividend Payment Date or is a date
after
the record date for the determination of holders of shares of Series A Junior
Participating Preferred Stock entitled to receive a quarterly dividend and
before such Quarterly Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall not bear
interest. Dividends paid on the shares of Series A Junior
Participating Preferred Stock in an amount less than the total amount of
such
dividends at the time accrued and payable on such shares shall be allocated
pro
rata on a share-by-share basis among all such shares at the time
outstanding. The Board of Directors may fix a record date for the
determination of holders of shares of Series A Junior Participating Preferred
Stock entitled to receive payment of a dividend or distribution declared
thereon, which record date shall be no more than 30 days prior to the date
fixed
for the payment thereof.
Section
3. Voting
Rights. The
holders of shares of Series A Junior Participating Preferred Stock shall
have
the following voting rights:
(A) Subject
to
the provision for adjustment hereinafter set forth, each share of Series
A
Junior Participating Preferred Stock shall entitle the holder thereof to
100
votes on all matters submitted to a vote of the stockholders of the
corporation. In the event the corporation shall at any time after the
Rights Declaration Date (i) declare any dividend on Common Stock payable in
shares of Common Stock, (ii) subdivide the outstanding shares of 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 Junior Participating 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) Except
as
otherwise provided herein or by law, the holders of shares of Series A Junior
Participating Preferred Stock shall vote together as one class on all matters
submitted to a vote of stockholders of the corporation.
(C) (i) If
at any time dividends on any Series A Junior Participating Preferred Stock
shall
be in arrears in an amount equal to six quarterly dividends thereon, the
occurrence of such contingency shall ▇▇▇▇ the beginning of a period (hereinafter
called a “Default Period”) which shall extend until such time when all accrued
and unpaid dividends for all previous quarterly dividend periods and for
the
current quarterly dividend period on all shares of Series A Junior Participating
Preferred Stock then outstanding shall have been declared and paid or set
apart
for payment. During each such Default Period, all holders of
Preferred Stock (including holders of the Series A Junior Participating
Preferred Stock) with dividends in arrears in an amount equal to six quarterly
dividends thereon, voting as a class, irrespective of series, shall have
the
right to elect two Directors.
(ii) During
any Default Period, such voting right of the holders of Series A Junior
Participating Preferred Stock may be exercised initially at a special meeting
called pursuant to subparagraph (iii) of this Section 3(C) or at any annual
meeting of stockholders, and thereafter at annual meetings of stockholders,
provided that neither such voting right nor the right of the holders of any
other series of Preferred Stock, if any, to increase, in certain cases, the
authorized number of Directors shall be exercised unless the holders of 10%
in
number of shares of Preferred Stock outstanding shall be present in person
or by
proxy. The absence of a quorum of the holders of Common Stock shall
not affect the exercise by the holders of Preferred Stock of such voting
right. At any meeting at which the holders of Preferred Stock shall
exercise such voting right initially during an existing Default Period, they
shall have the right, voting as a class, to elect Directors to fill such
vacancies, if any, in the Board or Directors as may then exist up to two
Directors. If the number which may be so elected at any special
meeting does not amount to the required number, the holders of the Preferred
Stock shall have the right to make such increase in the number of Directors
as
shall be necessary to permit the election by them of the required
number. After the holders of the Preferred Stock shall have exercised
their right to elect Directors in any Default Period and during the continuance
of such Default Period, the number of Directors shall not be increased or
decreased except by the vote of the holders of Preferred Stock as herein
provided or pursuant to the rights of any equity securities ranking senior
to or
in pari passu with the Series A Junior Participating
Preferred Stock.
(iii) Unless
the holders of Preferred Stock shall, during an existing Default Period,
have
previously exercised their right to elect Directors, the Board of Directors
may
order, or any stockholder or stockholders owning in the aggregate not less
than
10% of the total number of shares of Preferred Stock outstanding, irrespective
of series, may request, the calling of a special meeting of the holders of
Preferred Stock, which meeting shall thereupon be called by the President,
a
Vice-President, or the Secretary of the corporation. Notice of such
meeting and of any annual meeting at which holders of Preferred Stock are
entitled to vote pursuant to this paragraph (C)(iii) shall be given to each
holder of record of Preferred Stock by mailing a copy of such notice to him
at
his last address as the same appears on the books of the
corporation. Such meeting shall be called for a time not earlier than
10 days and not later than 60 days after such order or request or in default
of
the calling of such meeting within 60 days after such order or request, such
meeting may be called on similar notice by any stockholder or stockholders
owning in the aggregate not less than 10% of the total number of shares of
Preferred Stock outstanding. Notwithstanding the provisions of this
paragraph (C)(iii), no such special meeting shall be called during the period
within 60 days immediately preceding the date fixed for the next annual meeting
of the stockholders.
(iv) In
any Default Period, the holders of Common Stock, and other classes of stock
of
the corporation if applicable, shall continue to be entitled to elect the
whole
number of Directors until the holders of Preferred Stock shall have exercised
their right to elect two Directors voting as a class, after the exercise
of
which right (x) the Directors so elected by the holders of Preferred Stock
shall continue in office until their successors shall have been elected by
such
holders or until the expiration of the Default Period, and (y) any vacancy
in the Board of Directors may (except as provided in paragraph (C)(ii) of
this
Section 3, be filled by vote of a majority of the remaining Directors
theretofore elected by the holders of the class of stock which elected the
Director whose office shall have become vacant. References in this
paragraph (C) to Directors elected by the holders of a particular class of
stock
shall include Directors elected by such Directors to fill vacancies as provided
in clause (y) of the foregoing sentence.
(v) Immediately
upon the expiration of a Default Period, (x) the right of the holders of
Preferred Stock as a class to elect Directors shall cease, (y) the term of
any Directors elected by the holders of Preferred Stock as a class shall
terminate, and (z) the number of Directors shall be such numbers as may be
provided for in, or pursuant to, the Certificate of Incorporation or Bylaws
irrespective of any increase made pursuant to the provisions of paragraph
(C)(ii) of this Section 3 (such number being subject, however, to change
thereafter in any manner provided by law or in the Certificate of Incorporation
or Bylaws). Any vacancies on the Board of Directors effected by the
provisions of clauses (y) and (z) in the preceding sentence may be filled
by a
majority of the remaining Directors.
(D) Except
as
set forth herein, holders of Series A Junior Participating 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
quarterly dividends or other dividends or distributions payable on the Series
A
Junior Participating Preferred Stock as provided in Section 2 are in arrears,
thereafter and until all accrued and unpaid dividends and distributions,
whether
or not declared, on shares of Series A Junior Participating Preferred Stock
outstanding shall have been paid in full, the corporation shall not
(i) declare
or
pay dividends on, make any other distributions on, or redeem or purchase
or
otherwise acquire for consideration any shares of stock ranking junior (either
as to dividends or upon liquidation, dissolution or winding up) to the Series
A
Junior Participating Preferred 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 Junior Participating Preferred Stock, except dividends
paid ratably on the Series A Junior Participating 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 stock ranking
on a
parity (either as to dividends or upon liquidation, dissolution or winding
up)
with the Series A Junior Participating Preferred 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 stock of the corporation
ranking
junior (either as to dividends or upon dissolution, liquidation or winding
up)
to the Series A Junior Participating Preferred Stock; or
(iv) purchase
or
otherwise acquire for consideration any shares of Series A Junior Participating
Preferred Stock, or any shares of stock ranking on a parity with the Series
A
Junior Participating Preferred 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. As
used herein, the term “subsidiary” shall mean any corporation, partnership,
limited liability company or other entity (any of which, a “business entity”) in
which the corporation holds or controls, directly or indirectly, voting
securities or other interests sufficient to elect a majority of the board
of
directors or otherwise has the power, directly or indirectly, whether through
ownership of voting securities or other interests or by contract to elect
or
designate a majority of the members of the governing body of such business
entity or manage or control such business entity.
Section
5. Reacquired
Shares. Any shares of Series A Junior Participating 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.
Section
6. Liquidation,
Dissolution or Winding
Up.
(A) Upon
any
liquidation (voluntary or otherwise), dissolution or winding up of the
corporation, no distribution shall be made to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series A Junior Participating Preferred Stock unless prior
thereto, the holders of shares of Series A Junior Participating Preferred
Stock
shall have received per share the greater of 100 times $50 and 100 times
the
payment made per share of Common Stock, plus an amount equal to accrued and
unpaid dividends and distributions thereon, whether or not declared, to the
date
of such payment (the “Series A Liquidation Preference”). Following
the payment of the full amount of the Series A Liquidation Preference, no
additional distributions shall be made to the holders of shares of Series
A
Junior Participating Preferred Stock unless, prior thereto, the holders of
shares of Common Stock shall have received an amount per share (the “Common
Adjustment”) equal to the quotient obtained by dividing (i) the Series A
Liquidation Preference by (ii) 100 (as appropriately adjusted as set forth
in
subparagraph C below to reflect such events as stock splits, stock dividends
and
recapitalizations with respect to the Common Stock) (such number in clause
(ii),
the “Adjustment Number”). Following the payment of the full amount of
the Series A Liquidation Preference and the Common Adjustment in respect
of all
outstanding shares of Series A Junior Participating Preferred Stock and Common
Stock, respectively, holders of Series A Junior Participating Preferred Stock
and holders of shares 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 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 Series A Liquidation Preference and the liquidation preferences
of all other series of preferred stock, if any, which rank on a parity with
the
Series A Junior Participating Preferred Stock, then such remaining assets
shall
be distributed ratably to the holders of the Series A Junior Participating
Preferred Stock and all such parity shares in proportion to their respective
liquidation preferences. In the event, however, that there are not
sufficient assets available to permit payment in full of the Common 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 after the Rights Declaration Date
(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 Adjustment Number in effect immediately prior to such event shall be
adjusted by multiplying such Adjustment Number by a fraction of 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 or converted into other stock or securities, cash
and/or any other property, then in any such case the shares of Series A Junior
Participating Preferred Stock shall at the same time be similarly exchanged,
changed or converted in an amount per share (subject to the provision for
adjustment hereinafter set forth) equal to 100 times the aggregate amount
of
stock, securities, cash and/or any other property (payable in kind), as the
case
may be, into which or for which each share of Common Stock is changed,
exchanged, or converted. In the event the corporation shall at any
time after the Rights Declaration Date (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 set forth in the preceding
sentence with respect to the exchange or change of shares of Series A Junior
Participating Preferred Stock shall be adjustment 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 Junior Participating Preferred Stock shall not be
redeemable.
Section
9. Ranking. The
Series A
Junior Participating Preferred Stock shall rank junior to all other series
of
the corporation’s Preferred Stock as to the payment of dividends and the
distribution of assets, unless the terms of such series shall provide
otherwise.
Section
10. Amendment. The
Certificate of Incorporation of the corporation shall not be further amended
in
any manner which would materially alter or change the powers, preferences
or
special rights of the Series A Junior Participating Preferred Stock so as
to
affect them adversely without the affirmative vote of the holders of a majority
or more of the outstanding shares of Series A Junior Participating Preferred
Stock, voting separately as a class.
Section
11. Fractional
Shares. Series A Junior Participating Preferred Stock may be
issued in fractions of a share which shall entitle the holder, in proportion
to
such holders 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 Junior Participating Preferred Stock.
RESOLVED
FURTHER, that the proper officers of the corporation be, and each of them
hereby
is, authorized to execute a Certificate of Designation with respect to the
Series A Junior Participating Preferred Stock pursuant to Section 151 of
the
General Corporation Law of the State of Delaware and to take all appropriate
action to cause such Certificate to become effective, including, but not
limited
to, the filing and recording of such Certificate with and/or by the Secretary
of
State of the State of Delaware.
IN
WITNESS
WHEREOF, we have executed and subscribed this Certificate and do affirm the
foregoing is true under the penalties of perjury this 17th day of July,
1997.
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇
▇.
▇▇▇▇▇
Chairman
of
the Board
Attest:
/s/
▇▇▇▇▇▇▇ ▇. ▇’▇▇▇▇▇
▇▇▇▇▇▇▇
▇.
▇’▇▇▇▇▇
Secretary
Exhibit
B
[Form
of Rights Certificate]
Certificate
No.
R- __________
Rights
NOT
EXERCISABLE AFTER AUGUST 8, 2017 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.]1
Rights
Certificate
ICU
MEDICAL,
INC.
This
certifies that _________________,
or his 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 Amended and Restated Rights Agreement, dated
as
of October 18, 2007 (the “Rights Agreement”) between ICU Medical, Inc., a
Delaware corporation (the “Company”), and American Stock Transfer & Trust
Company, a New York corporation as Rights Agent (“Rights Agent”), to purchase
from the Company at any time after the Distribution Date (as such term is
defined in the Rights Agreement) and prior to 5:00 P.M. (California time)
on
August 8, 2017 at the office or offices of the Rights Agent designated for
such
purpose, or its successors as Rights Agent, one one-hundredth of a fully
paid,
nonassessable share of Series A Junior Participating Preferred Stock (the
“Preferred Stock”) of the Company, at a purchase price
of $225 per one one-hundredth of a
share (the “Purchase Price”), upon presentation and surrender of this Rights
Certificate with the Form of Election to Purchase and related Certificate
duly
executed. The Purchase Price shall be paid, at the election of the
holder, in cash or shares of Common Stock of the Company having an equivalent
value. The number of Rights evidenced by this Rights Certificate (and
the number of shares 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 _______________, based on the Preferred Stock as
constituted at such date.
___________
|
1
|
The
portion of the legend in brackets shall be inserted only if applicable
and
shall replace the preceding
sentence.
|
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, Associate or Affiliate, 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.
As
provided in the Rights Agreement,
the Purchase Price and the number and kind of shares of Preferred Stock or
other
securities, 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 Triggering Events.
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 principal 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-hundredths 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 $.001 per
Right at any time prior to the earlier of the Close of Business on (i) the
Stock Acquisition Date (as such time period may be extended pursuant to the
Rights Agreement), and (ii) the Final Expiration Date.
Subject
to the provisions of the Rights
Agreement, the Rights evidenced by this Certificate may be exchanged in whole
or
in part for shares of the Company’s Common Stock (or shares of Preferred Stock
of the Company equal in market value to one share of Common Stock) at an
exchange ratio of one share of Common Stock per Right, subject to
adjustment.
The
Company is not required to issue
fractional shares of Preferred Stock upon the exercise of any Right or Rights
evidenced hereby (other than fractions which are integral multiples of one
one-hundredth of a share of Preferred Stock, which may, at the election of
the
Company, be evidenced by depository receipts), but in lieu thereof a cash
payment may 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 counter-signed
by
the Rights Agent.
WITNESS
the facsimile signature of the
proper officers of the Company and its corporate seal.
Dated
as of
the ___ day of _________, ____.
ICU
MEDICAL, INC.
By:
Name:
Title:
Countersigned:
AMERICAN
STOCK TRANSFER & TRUST COMPANY,
as
Rights
Agent
By:
Authorized
Signature
FORM
OF
ASSIGNMENT
(To
be executed by the registered
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.
Date:
___________________
______________________________
Signature
Signature
Guaranteed:
Signatures
must be guaranteed by a member firm of a registered national securities
exchange, a member of the National Association of Securities Dealers, Inc.,
a
commercial bank or trust company having an office or correspondent in the
United
States or any other member of a medallion signature guarantee program approved
by the Securities Transfer Association.
Certificate
The
undersigned hereby certifies by checking the appropriate boxes
that:
(1) this
Rights Certificate
[ ]
is
[ ]
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 pursuant
to
the Rights Agreement); and
(2) after
due inquiry and to the best knowledge of the undersigned, it
[ ]
did
[ ]
did not
acquire
the
Rights evidenced by this Rights Certificate from any Person who is, was or
subsequently became an Acquiring Person or an Affiliate or Associate of an
Acquiring Person.
Date: ,
________________________________
Signature
Signature
Guaranteed:
Signatures
must be guaranteed by a member firm of a registered national securities
exchange, a member of the National Association of Securities Dealers, Inc.,
a
commercial bank or trust company having an office or correspondent in the
United
States or any other member of a medallion signature guarantee program approved
by the Securities Transfer Association.
NOTICE
The
signature to the foregoing
Assignment and Certificate must correspond to the name as written upon the
face
of this Rights Certificate in every particular, without alteration or
enlargement or any change whatsoever.
(To
be executed if holder desires to exercise Rights represented by the Rights
Certificate.)
To: ICU
MEDICAL, INC.
The
undersigned hereby irrevocably elects to exercise __________ Rights represented
by this Rights Certificate to purchase the number of one-hundredths of a
share
of Preferred Stock issuable upon the exercise of such Rights (or such other
securities of the Company or of any other person which may be issuable upon
the
exercise of the Rights) and requests that certificates for such number of
one-hundredths of a share of Preferred Stock be issued in the name of and
delivered to:
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 a member firm of a registered national securities
exchange, a member of the National Association of Securities Dealers, Inc.,
a
commercial bank or trust company having an office or correspondent in the
United
States or any other member of a medallion signature guarantee program approved
by the Securities Transfer Association.
Certificate
The
undersigned hereby certifies by checking the appropriate boxes
that:
(1) the
Rights evidenced by this Rights Certificate
[ ]
are
[ ]
are not
being
exercised by or on behalf of a
Person who is or was an Acquiring Person or an Affiliate or Associate of
any
such Acquiring Person (as such terms are defined pursuant to the Rights
Agreement); and
(2) after
due inquiry and to the best knowledge of the undersigned, it
[ ]
did
[ ]
did not
acquire
the
Rights evidenced by this Rights Certificate from any Person who is, was or
became an Acquiring Person or an Affiliate or Associate of an Acquiring
Person.
Dated: _____________________.
___________________________
Signature
Signature
Guaranteed:
Signatures
must be guaranteed by a member firm of a registered national securities
exchange, a member of the National Association of Securities Dealers, Inc.,
a
commercial bank or trust company having an office or correspondent in the
United
States or any other member of a medallion signature guarantee program approved
by the Securities Transfer Association.
NOTICE
The
signature to the foregoing Election to Purchase and Certificate must correspond
to the name as written upon the face of this Rights Certificate in every
particular, without alteration or enlargement or any change
whatsoever.
Exhibit
C
SUMMARY
OF
RIGHTS TO PURCHASE
PREFERRED
STOCK
On
July 30,
2007, the Board of Directors of ICU Medical, Inc. (the “Company”) declared a
dividend distribution of one Right for each outstanding share of Company
Common
Stock to stockholders of record at the close of business on July 30,
2007. Each Right entitles the registered holder to purchase from the
Company one one-hundredth of a share of Series A Junior Participating Preferred
Stock, no par value (the “Preferred Stock”), at a Purchase Price of $225 per one
one-hundredth of a share, subject to adjustment. The description and
terms of the Rights are set forth in an Amended and Restated Rights Agreement
(the “Rights Agreement”) between the Company and American Stock Transfer &
Trust Company, as Rights Agent.
Initially,
the Rights will be attached to all Common Stock certificates representing
shares
then outstanding, and no separate Rights Certificates will be
distributed. The Rights will separate from the Common Stock and a
Distribution Date will occur upon the earlier of (i) 10 business days (or
such later date as the Board of Directors shall determine) following a public
announcement that a person or group of affiliated or associated persons (an
“Acquiring Person”) has acquired, or obtained the right to acquire, beneficial
ownership of 15% or more of the outstanding shares of
Common Stock (the “Stock Acquisition Date”), except under certain limited
circumstances, or (ii) 10 business days (or such later date as the
Board of Directors shall determine) following the commencement of a tender
or
exchange offer that would result in a person or group beneficially owning
15% or more of such outstanding shares of Common
Stock. Until the Distribution Date, (i) the Rights will be
evidenced by the Common Stock certificates and will be transferred with and
only
with such Common Stock certificates, (ii) new Common Stock certificates
issued after August 8, 2007 will contain a notation incorporating the Rights
Agreement by reference, and (iii) the surrender for transfer of any
certificates for Common Stock outstanding will also constitute the transfer
of
the Rights associated with the Common Stock represented by such
certificates. Pursuant to the Rights Agreement, the Company reserves
the right to require prior to the occurrence of a Triggering Event (as defined
below) that, upon any exercise of Rights, a number of Rights be exercised
so
that only whole shares of Preferred Stock will be issued.
The
Rights
are not exercisable until the Distribution Date and will expire at the Close
of
Business as defined in the Rights Agreement, on August 8, 2017 unless earlier
redeemed by the Company as described below.
As
soon as
practicable after the Distribution Date, Rights Certificates will be mailed
to
holders of record of the Common Stock as of the Close of Business on the
Distribution Date, and thereafter, the separate Rights Certificates alone
will
represent the Rights. Except as otherwise determined by the Board of
Directors, only shares of Common Stock issued prior to the Distribution Date
will be issued with Rights.
In
the event
that any Acquiring Person shall acquire beneficial ownership of more than
15% of
the outstanding shares of Common Stock (except pursuant to (A) certain
consolidations or mergers involving the Company or sales or transfers of
the
combined assets or earning power the Company and its subsidiaries or (B)
an
offer for all outstanding shares of Common Stock at a price and upon terms
and
conditions which a majority of the Board of Directors determines to be in
the
best interests of the Company and its stockholders), each holder of a Right
(other than the Acquiring Person and certain related parties) will thereafter
have the right to receive, upon exercise, Common Stock (or, in certain
circumstances, cash, property or other securities of the Company) having
a value
equal to two times the Purchase Price of the Right. However, Rights
are not exercisable following the occurrence of any of the events described
above until such time as the Rights are no longer redeemable by the Company
as
described below. Notwithstanding any of the foregoing, following the
occurrence of any of the events described in this paragraph, all Rights that
are, or under certain circumstances specified in the Rights Agreement were,
beneficially owned by any Acquiring Person will be null and void.
For
example,
at an Purchase Price of $225 per Right, each Right not owned by an Acquiring
Person (or by certain related parties or transferees) following an event
set
forth in the preceding paragraph would entitle its holder to purchase $450
worth
of Common Stock (or other consideration, as noted above) for
$225. Assuming that the Common Stock had a per share market price of
$34 at such time, the holder of each valid Right would be entitled to purchase
13.24 shares of Common Stock for $17 per share.
In
the event
that, at any time following the Stock Acquisition Date, (i) the Company is
acquired in a merger or other business combination transaction in which the
Company is not the surviving corporation, (ii) the Company is the surviving
corporation in a consolidation or merger pursuant to which all or part of
the
outstanding shares of Common Stock are changed into or exchanged for stock
or
other securities of any other person or cash or any other property or
(iii) more than 50% of the combined assets of earning power of the Company
and its subsidiaries is sold or transferred (in each case other than certain
consolidations with, mergers with and into, or sales of assets or earning
power
by or to subsidiaries of the Company as specified in the Rights Agreement),
each
holder of a Right (except Rights which previously have been voided as set
forth
above) shall thereafter have the right to receive, upon exercise, common
stock
of the acquiring company having a value equal to two times the exercise price
of
the Rights. The events described in this paragraph and in the second
preceding paragraph are referred to as the “Triggering Events.”
The
Purchase
Price payable, the number and kind of shares covered by each Right and the
number of Rights outstanding are subject to adjustment from time to time
to
prevent dilution (i) in the event of a stock dividend on, or a subdivision,
combination or reclassification of, the Preferred Stock, (ii) if holders of
the Preferred Stock are granted certain rights or warrants to subscribe for
Preferred Stock or securities convertible into Preferred Stock at less than
the
current market price of the Preferred Stock, or (iii) upon the distribution
to holders of the Preferred Stock of evidences of indebtedness, cash (excluding
regular quarterly cash dividends), assets (other than dividends payable in
Preferred Stock) or of subscription rights or warrants (other than those
referred to in (ii) immediately above).
With
certain
exceptions, no adjustment in the Purchase Price will be required until
cumulative adjustments amount to at least 1% of the Purchase
Price. No fractional shares of Preferred Stock are required to be
issued (other than fractions which are integral multiples of one one-hundredth
of a share of Preferred Stock) and, in lieu thereof, the Company may make
an
adjustment in cash based on the market price of the Preferred Stock on the
trading data immediately prior to the date of exercise.
At
any time
after any person or group becomes an Acquiring Person and prior to the
acquisition by such person or group of 50% or more of the outstanding shares
of
Common Stock, the Board of Directors of the Company may exchange the Rights
(other than Rights owned by such person or group, which will become void),
in
whole or in part, for shares of Common Stock at an exchange ratio of one
share
of Common Stock (or in certain circumstances Preferred Stock) per Right (subject
to adjustment).
At
any time
until the Stock Acquisition Date, the Company may redeem the Rights in whole,
but not in part, at a price of $.01 per Right (payable in cash, shares of
Common
Stock or other consideration deemed appropriate by the Board of
Directors). Immediately upon the action of the Board of Directors
ordering redemption of the Rights, the Rights will terminate and the only
right
of the holders of Rights will be to receive the $.01 redemption
price.
Until
a
Right is exercised, the holder thereof, as such, will have no rights as a
stockholder of the Company, including, without limitation, the right to vote
or
to receive dividends. While the distribution of the Rights will not
be taxable to stockholders or to the Company, stockholders may, depending
upon
the circumstances, recognize taxable income in the event that the Rights
become
exercisable for Common Stock (or other consideration) of the Company or for
common stock of the acquiring company as set forth above or in the event
that
the Rights are redeemed.
Other
than
those provisions relating to the principal economic terms of the Rights,
any of
the provisions of the Rights Agreement may be amended by the Board of Directors
prior to the Distribution Date. After the Distribution Date, the
provisions of the Rights Agreement may be amended by the Board in order to
cure
any ambiguity, to make changes which do not adversely affect the interests
of
holders of Rights (excluding the interest of any Acquiring Person) or to
shorten
or lengthen any time period under the Rights Agreement; provided,
however, that no amendment to adjust the time period governing redemption
shall be made at such time as the Rights are not redeemable.
A
copy of
the Amended and Restated Rights Agreement has been filed with the Securities
and
Exchange Commission as an Exhibit to a Registration Statement on Form 8-A/A
dated October 18, 2007. A copy of the Rights Agreement is available
free of charge from the Rights Agent. This summary description of the
Rights does not purport to be complete and is qualified in its entirety by
reference to the Rights Agreement, which is incorporated herein by
reference.