MAXXAM Inc. and American Stock Transfer & Trust Company Rights Agent RIGHTS AGREEMENT Dated as of December 15, 1999
Exhibit
4.1
and
American
Stock Transfer & Trust Company
Rights
Agent
Dated as
of December 15, 1999
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Table
of Contents
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Page
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Section 1.
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Certain
Definitions
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1
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Section 2.
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Appointment of Rights
Agent
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8
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Section 3.
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Issuance of Rights
Certificates
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8
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Section 4.
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Form of Rights
Certificates
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10
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Section 5.
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Countersignature and
Registration
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11
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Section 6.
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Transfer, Split Up,
Combination and Exchange of Rights
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Certificates; Mutilated,
Destroyed, Lost or Stolen Rights
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Certificates
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11
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Section 7.
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Exercise of Rights; Purchase
Price; Expiration Date
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of Rights
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12
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Section 8.
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Cancellation and Destruction
of Rights Certificate
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15
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Section 9.
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Reservation and Availability
of Capital Stock
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15
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Section 10.
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Preferred Stock Record
Date
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17
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Section 11.
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Adjustment of Purchase Price,
Number and Kind of Shares or
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Number of
Rights
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17
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Section 12.
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Certificate of Adjusted
Purchase Price or Number of Shares
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32
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Section 13.
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Consolidation, Merger or Sale
or Transfer of Property,
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Assets or Earning
Power
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32
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Section 14.
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Fractional Rights and
Fractional Shares
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35
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Section 15.
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Rights of
Action
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36
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Section 16.
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Agreement of Rights Holders
Concerning Transfer and
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Ownership of
Rights
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36
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Section 17.
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Rights Certificate Holder Not
Deemed a Stockholder
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38
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Section 18.
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Concerning the Rights
Agent
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38
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Section 19.
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Merger or Consolidation or
Change of Name of Rights Agent
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39
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Section 20.
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Duties of Rights
Agent
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39
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Section 21.
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Change of Rights
Agent
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42
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Section 22.
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Issuance of New Rights
Certificates
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42
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Section 23.
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Redemption and
Termination
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43
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Section 24.
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Notice of Certain
Events
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44
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Section 25.
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Notices
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45
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Section 26.
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Supplements and
Amendments
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46
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Section 27.
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Successors
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47
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Section 28.
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Determinations and Actions by
the Board of Directors, etc.
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47
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Section 29.
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Exchange
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47
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Section 30.
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Benefits of this
Agreement
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48
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Section 31.
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Severability
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48
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Section 32.
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Governing Law
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49
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Section 33.
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Counterparts
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49
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Section 34.
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References
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49
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Section 35.
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Descriptive
Headings
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49
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Section 36.
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Grammatical
Construction
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49
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RIGHTS AGREEMENT, dated as of December
15, 1999 (the "Agreement") between MAXXAM Inc., a Delaware corporation (the
"Company"), and American Stock Transfer & Trust Company, as Rights Agent
(the "Rights Agent").
WHEREAS, on December 15, 1999 (the
"Rights Dividend Declaration Date"), the Board of Directors of the Company has
authorized and declared a distribution of (i) one Series A Preferred Stock
Purchase Right (the "Series A Right") for each share of Class A $.05
Non-Cumulative Participating Convertible Preferred Stock, value $.50 per share
(the "Class A Preferred Stock"), outstanding on the Record Date (as defined in
Section 1) and (ii) one Series B Preferred Stock Purchase Right (the "Series B
Right") for each share of Common Stock, par value $.50 per share of the Company
Common Stock (as defined in Section 1), outstanding on the Record Date (the
Common Stock and the Class A Preferred Stock being hereinafter referred to
collectively as the "Stock"), and has authorized the issuance of one Series A
Right for each share of Class A Preferred Stock, and one Series B Right for each
share of Common Stock, issued between the Record Date (whether originally issued
or delivered from the Company's treasury) and the Distribution Date (as defined
in Section 1), and in certain cases following the Distribution Date. Each Series
A Right represents the right to purchase one additional share of Class A
Preferred Stock of the Company upon the terms and subject to the conditions
hereinafter set forth, and each Series B Right initially represents the right to
purchase one one-hundredth of a share of Class B Junior Participating Preferred
Stock of the Company having the rights, powers and preferences set forth in the
Certificate of Designation, Preferences and Rights attached hereto as Exhibit A,
upon the terms and subject to the conditions hereinafter set forth (the Series A
Rights and the Series B Rights being herein referred to collectively as the
"Rights").
NOW, THEREFORE, in consideration of the
premises and the mutual agreements set forth in this Agreement, the parties
hereby agree as follows:
Section
1. Certain Definitions. For purposes of this
Agreement, the following terms have the meanings indicated:
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(a)
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"Acquiring
Person" means:
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(i)
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any
Person who or which, together with all Affiliates and Associates of such
Person, shall be the Beneficial Owner of 15% or more of the Common Stock
then outstanding, but shall not include the Company, any of its
Subsidiaries, any employee benefit plan of the Company or of any
Subsidiary of the Company, or any Person holding Common Stock for or
pursuant to the terms of any such
plan.
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(ii)
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Notwithstanding
the foregoing, a Person does not become an "Acquiring Person" solely as
the result of an acquisition of shares of Stock by the Company or a
Subsidiary of the Company which, by reducing the number of shares
outstanding, increases the proportionate number of shares beneficially
owned by such Person to 15% or more of the shares of Common Stock then
outstanding; provided, however, that if a Person becomes the Beneficial
Owner of 15% or more of the shares of Common Stock then outstanding solely
by reason of such a share acquisition by the Company or a Subsidiary of
the Company and shall, thereafter, together with its Affiliates and
Associates, become the Beneficial Owner of any additional shares of Common
Stock (other than (x) through the exercise of any presently outstanding
options, or the issuance hereafter by the Company of any options, stock
appreciation rights or other securities convertible into or exercisable
for stock (or the exercise of any such options, rights or other
securities), (y) as a result of any dividend by the Company payable in
stock or securities convertible into or exercisable for stock or (z) by
reason of the acquisition by such Person of beneficial ownership of an
aggregate of no more than 10,000 shares of Common Stock (such number to be
appropriately adjusted to reflect stock dividends, splits,
reclassifications and combinations from and after the date of this
Agreement) in any single calendar year, provided that none of such shares
are owned directly by such Person or nominees for such Person), then such
Person shall, if such Person shall then meet the requirements of the first
sentence of this paragraph (a) and shall not otherwise be exempted from
this definition of "Acquiring Person," be deemed to be an Acquiring
Person;
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(iii)
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no
Person who, together with all Affiliates and Associates of such Person, as
of the date of this Agreement, is the Beneficial Owner of 15% or more of
the outstanding Common Stock (an "Excepted Person") shall be deemed to be
an Acquiring Person; provided, however, that if such Person shall,
together with its Affiliates and Associates, become the Beneficial Owner
of any additional shares of Common Stock (other than (x) through the
exercise of any presently outstanding options, or the issuance hereafter
by the Company of any options, stock appreciation rights or other
securities convertible into or exercisable for stock (or the exercise of
any such options, rights or other securities), (y) as a result of any
dividend by the Company payable in stock or securities convertible into or
exercisable for stock or (z) by reason of the acquisition by such Person
of beneficial ownership of an aggregate of no more than 10,000 shares of
Common Stock (such number to be appropriately adjusted to reflect stock
dividends, splits, reclassifications and combinations) in any single
calendar year, provided that none of such shares are owned directly by
such Person or nominees for such Person), such Person shall, if such
Person shall then meet the requirements of the first sentence of this
paragraph (a) and shall not otherwise be exempted from this definition of
"Acquiring Person," be deemed to be an Acquiring
Person;
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(iv)
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no
Person who is a member of an Excepted Group, nor any Person who shall
thereafter become a member of such Excepted Group, shall be deemed to be
an Acquiring Person, provided, however, that (x) if the aggregate number
of shares of outstanding Common Stock beneficially owned by such Excepted
Group shall hereafter increase (other than (A) through the exercise of any
presently outstanding options, or the issuance hereafter by the Company of
any options, stock appreciation rights or other securities convertible
into or exercisable for stock (or the exercise of any such options, rights
or other securities), (B) as a result of any dividend of the Company
payable in stock or securities convertible into or exercisable for stock
or (C) by reason of the acquisition by the members of such Excepted Group
of beneficial ownership of an aggregate of no more than 10,000 shares of
Common Stock (such number to be appropriately adjusted to reflect stock
dividends, splits, reclassifications and combinations) in any single
calendar year, provided, that none of such shares are owned directly by
any member of such Excepted Group or nominees for any such member) or (y)
there shall no longer be at least one member of such Excepted Group who
was a member of such Excepted Group on the date of this Agreement, then,
each such Person who shall then meet the requirements of the first
sentence of this paragraph (a) and shall not otherwise be exempted from
this definition of "Acquiring Person" shall then be deemed to be an
Acquiring Person.
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(v)
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no
Person who makes an inadvertent acquisition of the beneficial ownership of
15% or more of the Stock of the Company shall be deemed an "Acquiring
Person" if the Board of Directors determines in good faith that such
acquisition was inadvertent and such Person immediately divests itself of
a sufficient number of shares of Stock so as to no longer be an Acquiring
Person.
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(vi)
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no
Person who is or becomes the Beneficial Owner of 15% of the Stock of the
Company then outstanding, shall be deemed an "Acquiring Person" if such
Person has obtained the authorization of the Board of Directors for such
acquisition.
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(b)
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"Affiliate"
and "Associate" when used with reference to any Person, has the meaning
given to such term in Rule 12b-2 of the General Rules and Regulations
under the Exchange Act, as in effect on the date of this
Agreement.
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(c)
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A
Person shall be deemed the "Beneficial Owner" of, and shall be deemed to
"beneficially own," and have "beneficial ownership" of any
securities:
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(i)
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which
such Person or any Affiliate or Associate of such Person beneficially
owns, directly, or indirectly;
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(ii)
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which
such Person or any of such Person's Affiliates or Associates, has,
directly or indirectly, the right to acquire (whether or not then
exercisable) pursuant to any agreement, arrangement or understanding
(whether or not in writing) or upon the exercise of conversion rights,
exchange rights, rights (other than the Rights), warrants or options, or
otherwise; provided, however, that a Person shall not be deemed the
"Beneficial Owner" of, or to "beneficially own," (A) securities tendered
pursuant to a tender or exchange offer made by or on behalf of such Person
or any of such Person's Affiliates or Associates until such tendered
securities are accepted for purchase or exchange thereunder or cease to be
subject to withdrawal by the tendering securityholder, (B) securities
obtainable 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
of this Agreement (the "Original Rights") or pursuant to Section 11(i) or
Section 11(p) of this Agreement in connection with an adjustment made with
respect to any Original Rights;
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(iii)
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which
such Person or any Affiliates or Associates of such Person has, directly
or indirectly, the right (whether or not then exercisable) to vote, or to
direct the voting of, 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,"
or have "beneficial ownership" of any security pursuant to this clause
(iii) 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 schedule or
report);
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(iv)
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which
such Person or any Affiliate or Associate of such Person has "beneficial
ownership" of (as determined pursuant to Rule 13d-3 of the General Rules
and Regulations under the Exchange Act or any comparable or successor
provision); or
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(v)
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which
are beneficially owned, directly or indirectly, by any other Person (or
any Affiliate or Associate of such Person) with which such Person (or any
Affiliate or Associate of such Person) has any agreement, arrangement or
understanding (whether or not in writing), for the purpose of acquiring,
holding, voting (except pursuant to a revocable proxy as described in the
proviso to subparagraph (iii) of this Section 1(d) or disposing of any
securities of the Company.
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Nothing
in this Section 1(c) shall cause a Person engaged in business as an
underwriter of securities to be the "Beneficial Owner" of, or to
"beneficially own," any securities acquired through such Person's
participation in good faith in a firm commitment underwriting until the
expiration of forty days after the date of such
acquisition.
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(d)
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"Board
of Directors" means the Board of Directors of the Company, as the same is
constituted from time to time, or if the Company ceases to exist as a
result of a Business Combination or otherwise, the Board of Directors of
the Company's successor, if any.
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(e)
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"Business
Day" shall mean any day other than a Saturday, Sunday or a day on which
banking institutions in the State of Texas or State of New York are
authorized or obligated by law or executive order to
close.
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(f)
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"Class
A Preferred Stock" shall mean the Class A $.05 Non-Cumulative
Participating Convertible Preferred Stock, par value $.50 per share, of
the Company, except that "Class A Preferred Stock," when used with
reference to any Person other than the Company (or with reference to the
Company, if the Company is the Principal Party) shall mean the capital
stock of such Person having rights, privileges, preferences and other
terms substantially similar to the rights, privileges, preferences and
other terms of the Class A Preferred
Stock.
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(g)
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"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.
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(h)
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"Common
Stock" when used in reference to the Company prior to a Section 13 Event
(defined in this Definition Section) shall mean the common stock, par
value $.50 per share, of the Company. "Common Stock" when used with
reference to any Person (other than the Company prior to a Section 13
Event (defined in this Definition section)) shall mean Shares of capital
stock of such Person (if such Person is a corporation) of any class or
series, or units of equity interests in such Person (if such Person is not
a corporation) of any class or series, the terms of which shares or units
do not limit (as a fixed amount and not merely in proportional terms) the
amount of dividends or income payable or distributable on such shares or
units or the amount of property or assets distributable on such shares or
units upon any voluntary or involuntary liquidation, dissolution or
winding up of such Person and do not provide that such shares or units are
subject to redemption at the option of such Person, or any shares of
capital stock or units of equity interests into which the foregoing shall
be reclassified or changed; provided, however, that if at any time there
are more than one such class or series of capital stock of or equity
interests in such Person, "Common Stock" of such Person will include all
such classes and series substantially in the proportion of the total
number of shares or other units of each such class or series outstanding
at such time.
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(i)
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"Distribution
Date" means the earlier of (i) the Close of Business on the tenth day
after the Stock Acquisition Date (or, if the tenth day after the Stock
Acquisition Date occurs before the Record Date, the Close of Business on
the Record Date) or (ii) the Close of Business on the tenth Business Day
(or such later date as may be determined by the Company's Board of
Directors) 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 (or any successor provision), if upon
consummation thereof, such Person would be the Beneficial Owner of 15% or
more of the shares of Common Stock then
outstanding.
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(j)
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"Excepted
Group" means a group falling within the meanings of Section 13(d)(3) of
the Exchange Act, as in effect on the date of this Agreement, and whose
members on the date of this Agreement, beneficially own an aggregate of
15% or more of the outstanding Common
Stock.
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(k)
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"Exchange
Act" shall mean the Securities Exchange Act of 1934, as amended, and any
successor statute.
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(l)
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"Expiration
Date" means the Close of Business on December 11,
2009.
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(m)
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"Junior
Preferred Stock" shall mean shares of Class B Junior Participating
Preferred Stock, par value $.50 per share, of the Company, and, to the
extent that there are not a sufficient number of shares of Class B Junior
Participating Preferred Stock authorized to permit the full exercise of
the Rights, any other series of preferred stock, par value $.50 per share,
of the Company designated for such purpose containing rights, privileges,
preferences and other terms substantially similar to the rights,
privileges, preferences and other terms of the Junior Preferred
Stock.
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(n)
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"Person"
shall mean any individual, corporation, partnership, limited liability
company, joint venture, association, trust, unincorporated organization or
other entity, and shall include any "group" as that term is used in Rule
13d-5(d) under the Exchange Act or any successor
provision.
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(o)
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"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 capital stock of the Company
are converted in such merger or consolidation (or, if there is more than
one such Person, the Person that is the issuer of the Common Stock having
the greatest aggregate market value), 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 twelve (12) month period
registered under Section 12 of the Exchange Act, and such Person is a
direct or indirect Subsidiary of another Person the Common Stock of which
is and has been so registered, "Principal Party" shall refer to such other
Person; 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.
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(p)
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"Record
Date" means the Close of Business on December 29,
1999.
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(q)
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"Redemption
Date" means the time at which the Rights are scheduled to be redeemed as
provided in Section 23.
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(r)
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"Rights
Agent" means American Stock Transfer & Trust Company, or any Co-Rights
Agent or Successor Rights Agent appointed by the Company pursuant to
Section 2.
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(s)
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"Section
11(a)(ii) Event" shall mean any event described in Section 11(a)(ii) (A),
(B) or (C) of this Agreement.
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(t)
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"Securities
Act" means the Securities Act of 1933, as amended, and any successor
statute.
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(u)
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"Section
13 Event" shall mean any event described in clauses (x), (y) or (z) of
Section 13(a) of this Agreement.
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(v)
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"Stock
Acquisition Date" shall mean the first date of public disclosure (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.
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(w)
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"Subsidiary"
shall mean, with reference to any Person, any other Person of which an
amount of voting securities sufficient to elect at least a majority of the
directors or other governing body is owned, directly or indirectly, by
such Person, or otherwise controlled by such
Person.
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(x)
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"Tender
Offer Date" means the date of commencement or public disclosure of an
intention to commence (including any such commencement or public
disclosure which occurs on or after the date of this Agreement and prior
to the issuance of the Rights) a tender offer or exchange offer by a
Person if, after acquiring the maximum number of securities sought
pursuant to such offer, such Person, or any Affiliate or Associate of such
Person, would be an Acquiring
Person.
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(y)
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"Triggering
Event" occurs when a Person becomes an Acquiring Person as set forth in
Section 11(a)(ii) or Section 13.
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(z)
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"Other
Definitions". The following terms have the meanings ascribed to them in
the Sections noted:
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Adjustment
Shares
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Section
11(a)(ii)
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Class A Preferred
Equivalents
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Section
11(a)(iii)
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Common Stock
Equivalents
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Section
11(a)(iii)
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Current market
price
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Section 11(d)
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Junior Equivalent Preferred
Stock
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Section 11(b)
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Purchase Price
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Sections 7(b), 11(a)(ii) and
13(a)
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Redemption
Price
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Section 23(a)
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Rights
Certificates
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Section 3(a)
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Section 11(a)(ii) Trigger
Date
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Section
11(a)(iii)
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Series A Current
Value
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Section
11(a)(iii)
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Series B Current
Value
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Section
11(a)(iii)
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Series A Spread
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Section
11(a)(iii)
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Series B Spread
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Section
11(a)(iii)
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Substitution
Period
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Section
11(a)(iii)
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Trading Day
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Section
11(d)(i)
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Section 2.
Appointment of Rights Agent. The Company hereby appoints the Rights Agent to act
as agent for the Company and the holders of the Rights (who, in accordance with
Section 3 of this Agreement, shall prior to the Distribution Date also be the
holders of the Stock) in accordance with the terms and conditions set forth in
this Agreement, and the Rights Agent hereby accepts such appointment. The
Company may from time to time appoint such Co-Rights Agents as it may deem
necessary or desirable.
Section
3. Issuance of Rights Certificates.
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(a)
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Until
the Distribution Date (i) the Rights will be issued in respect of the
Stock, will be evidenced (subject to the provisions of paragraph (b) of
this Section 3) by the certificates for the Stock registered in the names
of the holders of the Stock (which certificates for 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 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 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
right certificates, in substantially the form of Exhibits B and C hereto,
as the case may be (the "Rights Certificates"), evidencing one Series A
Right for each share of Class A Preferred Stock so held and one Series B
Right for each share of Common Stock so held, subject to adjustment as
provided herein. In the event that an adjustment in the number of Rights
per share of Stock has been made pursuant to Section 11(i) or Section
11(p) of this Agreement, at the time of distribution of the Rights
Certificates the Company may, at its option, make appropriate rounding
adjustments (in accordance with Section 14(a) of this Agreement) so that
Rights Certificates representing only whole numbers of Rights are
distributed and cash is paid in lieu of any fractional Rights. As of and
after the Distribution Date, the Rights will be evidenced solely by such
Rights Certificates.
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(b)
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The
Company shall send a copy of the document entitled "Summary of Rights to
Purchase Preferred Stock," in substantially the form attached hereto as
Exhibit D, by first class, postage prepaid mail, to each record holder of
Stock as of the Close of Business on the Record Date, at the address of
such holder shown on the records of the Company. With respect to
certificates for Stock outstanding as of the Record Date, until the
Distribution Date, the Rights associated with the Stock evidenced by such
certificates will be evidenced by such certificates alone and the
registered holders of the Stock shall also be the registered holders of
the associated Rights. Until the earlier of the Distribution Date or the
Expiration Date, the transfer of any certificates representing shares of
Stock in respect of which Rights have been issued shall also constitute
the transfer of the Rights associated with the shares of Stock represented
by such certificates.
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(c)
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Rights
shall be issued in respect of all shares of Stock which are issued
(whether originally issued or from the Company's treasury) after the
Record Date but prior to the earlier of the Distribution Date or the
Expiration Date. Certificates representing such shares of Stock shall also
be deemed to be certificates for Rights, and shall bear the following
legend:
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This
certificate also evidences and entitles the holder hereof to certain
Rights as set forth in that certain Rights Agreement between MAXXAM Inc.
(the "Company") and American Stock Transfer & Trust Company (the
"Rights Agent"), dated as of December 15, 1999; as the same has been or
may hereafter be amended or supplemented (the "Rights Agreement"), the
terms of which are hereby incorporated herein by reference and a copy of
which is on file at the principal executive offices of the Company. Under
certain circumstances, as set forth in the Rights Agreement, such Rights
will be evidenced by separate certificates and will no longer be evidenced
by this certificate. The Company will mail to the holder of this
certificate a copy of the Rights Agreement, as in effect on the date of
mailing, without charge promptly after receipt of a written request
therefor. Under certain circumstances as 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.
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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 Stock represented by such certificates shall be
evidenced by such certificates alone and the registered holders of the
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 Stock represented by such
certificates.
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(d)
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Certificates
representing shares of Stock issued after the Record Date and prior to the
Distribution Date in exchange or substitution for, or in replacement of,
other Stock certificates or upon transfer of shares of Stock shall bear
the legend set forth in Section 3(c) of this
Agreement.
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Section
4. Form of Rights Certificates.
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(a)
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The
Rights Certificates (and the forms of election to purchase shares and the
form of assignment to be printed on the reverse thereof) shall each be
substantially in the forms set forth in Exhibits B and C hereto, as the
case may be, 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 of this Agreement, the Rights Certificates, whenever
distributed, shall be dated as of the Record Date and on their face shall
entitle the holders thereof to purchase (i) in the case of Series A
Rights, the number of shares of Class A Preferred Stock, and (ii) in the
case of Series B Rights, such number of one one-hundredths of a share of
Junior Preferred Stock, as shall be set forth therein at the Purchase
Price set forth therein, but the number and kind of securities purchasable
upon the exercise of each Right and the Purchase Price thereof shall be
subject to adjustment as provided
herein.
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(b)
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Any
Rights Certificate issued pursuant to this Agreement that represents
Rights beneficially owned by or formerly beneficially owned, on or after
the Distribution Date, by a Person known by the Company to be: (i) an
Acquiring Person or any Associate or Affiliate of Acquiring Person, (ii) a
direct or indirect transferee of an Acquiring Person (or of any such
Associate or Affiliate) who becomes a transferee after such 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 holders of equity interests in an Associate or
Affiliate of such Acquiring Person or to any Person with whom such
Acquiring Person or an Associate or Affiliate of 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) of this
Agreement, and any Rights Certificate issued pursuant to Section 6,
Section 11 or Section 22 of this Agreement 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:
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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 are or
may become null and void in the circumstances specified in Section 7(e) of the
Rights Agreement.
Section 5. Countersignature and
Registration.
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(a)
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The
Rights Certificates shall be executed on behalf of the Company by its
Chairman, its President or any Vice President thereunto duly authorized,
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 manually
countersigned by the Rights Agent 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 Certificates may be signed on behalf of the Company by any person
who, at the actual date of the execution of such Rights Certificate, shall
be a proper officer of the Company to sign such Rights Certificate,
although at the date of the execution of this Agreement any such Person
was not such an officer.
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(b)
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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 each series of Rights evidenced on
its face by each of the Rights Certificates and the date of each of the
Rights Certificates.
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Section
6. Transfer, Split Up, Combination and Exchange of
Rights Certificates; Mutilated, Destroyed, Lost or Stolen Rights
Certificates.
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(a)
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Subject
to the provisions of Section 4(b), Section 7(e) and Section 14 of this
Agreement, 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, divided, combined
or exchanged for another Rights Certificate or Certificates, entitling the
registered holder to purchase a like number of shares of Class A Preferred
Stock or one one-hundredths of a share of Junior Preferred Stock (or,
following a Triggering Event, Class A Preferred Stock, 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, divide, 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
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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 its Affiliates or Associates as the Company shall reasonably request. Thereupon the Rights Agent shall, subject to Section 4(b), Section 7(e) and Section 14 of this Agreement, countersign, and deliver to the Person entitled thereto a Rights Certificate (or Rights Certificates, as the case may be) as so requested. As a condition of such transfer, division, combinatio or exchange, 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. |
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(b)
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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 upon surrender
to the Rights Agent and cancellation of the Rights Certificate if
mutilated, and in each case reimbursement to the Company and the Rights
Agent of all reasonable expenses incidental thereto, 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.
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Section
7. Exercise of Rights; Purchase Price;
Expiration Date of Rights.
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(a)
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Subject
to Section 7(e) of this Agreement, the registered holders of any Rights
Certificate may exercise the Rights evidenced thereby as provided in this
Agreement 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 shares of Class A
Preferred Stock or one one-hundredths of a share of Junior Preferred Stock
(or other securities, cash, or other property or other assets, as the case
may be), at or prior to the earliest of the Expiration Date or the
Redemption Date.
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(b)
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The
Purchase Price for each share of Class A Preferred Stock pursuant to the
exercise of a Series A Right shall initially be $165, and shall be subject
to adjustment from time to time as provided in Sections 11 and 13(a) of
this Agreement and shall be payable in accordance with paragraph (c)
below. The Purchase Price for each one one-hundredth of a share of Junior
Preferred Stock pursuant to the exercise of a Series B Right shall
initially be $165, and shall be subject to adjustment from time to time as
provided in Sections 11 and 13(a) of this Agreement and shall be payable
in accordance with paragraph (c) below. The Board of Directors, in its
discretion, may determine that part or all of the Purchase Price may be
paid in consideration other than cash, including without limitation
promissory notes.
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(c)
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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
applicable Purchase Price and an amount equal to any applicable transfer
tax, the Rights Agent shall, subject to Section 20(k) of this Agreement,
thereupon promptly (i) (A) requisition, from any transfer agent of the
shares of Class A Preferred Stock and Junior Preferred Stock, as the case
may be (or make available, if the Rights Agent is the transfer agent for
such shares), certificates for the total number of shares of Class A
Preferred Stock or one one-hundredths of a share of Junior 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 Class A
Preferred Stock and Junior Preferred Stock issuable upon exercise of the
Rights hereunder with a depositary agent, requisition from the depositary
agent depositary receipts representing such number of shares of Class A
Preferred Stock or one one-hundredths of a share of Junior Preferred Stock
as are to be purchased (in which case certificates for the shares of Class
A Preferred Stock and Junior Preferred Stock represented by such receipts
shall be deposited by the transfer agent with the depositary agent), and
the Company will direct the depositary agent to comply with such request,
(ii) requisition from the Company the amount of cash, if any, to be paid
in lieu of fractional shares in accordance with Section 14 of this
Agreement, (iii) after receipt of such certificates or depositary
receipts, cause the same to be delivered to or upon the order of the
registered holder of such Rights Certificate, registered in such name or
names as may be designated by such holder, and (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 applicable Purchase Price
(as such amount may be reduced pursuant to Section 11(a)(iii) of this
Agreement, and subject to the provisions of paragraph (b) of this Section
7) shall be made by check (subject to collection), cashier's bank check,
certified bank check or money order payable to the order of the Company,
or in such other form as shall be acceptable to the Company and the Rights
Agent. In the event that the Company is obligated to issue other
securities (including Common Stock) of the Company or pay cash and/or
distribute other property pursuant to Section 11(a) of this Agreement, 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 Class A Preferred Stock or Junior Preferred Stock would be
issued.
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(d)
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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 Certificate, registered in such name or names as may
be designated by such holder, subject to the provisions of Section 14 of
this Agreement and subject to the payment of any tax or governmental
charge that may be imposed in connection
therewith.
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(e)
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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 direct or indirect 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 direct or indirect 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 direct or indirect
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 ensure that the provisions of this Section 7(e) and
Section 4(b) 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
(including any such failure or delay by the Board of Directors of the
Company) any determinations with respect to an Acquiring Person or any of
its Affiliates, Associates or transferees
hereunder.
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(f)
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Notwithstanding
anything in this Agreement to the contrary, neither the Rights Agent nor
the Company shall be obligated to undertake any action with respect to a
registered holder upon the occurrence of any purported exercise as set
forth in this Section 7 unless such registered holder shall have (i)
completed and signed the certificate contained in the form of election to
purchase set forth on the reverse side of the 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.
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Section
8. Cancellation and Destruction of Rights
Certificates.
All Rights Certificates surrendered for
the purpose of exercise, transfer, division, combination, exchange or
replacement shall, if surrendered to the Company or any of its agents, be
delivered to the Rights Agent for cancellation or in cancelled form, or, if
surrendered to the Rights Agent, shall be cancelled by it, and no Rights
Certificates shall be issued in lieu thereof except as expressly permitted by
any of the provisions of this Agreement. The Rights Agent shall deliver all
cancelled 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.
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(a)
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The
Company covenants and agrees that, until a Triggering Event, it will cause
to be reserved and kept available out of its valid and unissued shares of
Class A Preferred Stock and Junior Preferred Stock sufficient shares of
Class A Preferred Stock and Junior Preferred Stock so as to permit the
exercise in full of all outstanding Rights in accordance with this
Agreement from and after a Distribution Date and prior to any Triggering
Event. The Company also covenants that, from and after a Triggering Event,
it will cause to be reserved and kept available out of its authorized and
unissued shares of Class A Preferred Stock, Common Stock and/or other
securities or out of its valid and issued shares held in its treasury, the
number of shares of Class A Preferred Stock, Common Stock and/or other
securities that, as provided in this Agreement including Section
11(a)(iii) of this Agreement, will be sufficient to permit the exercise in
full of all outstanding Rights. In each case, the Company shall, to the
extent necessary to satisfy the above requirements, designate as Class A
Preferred Stock any available authorized shares of "blank check" or
undesignated preferred stock.
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(b)
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So
long as the shares of Class A Preferred Stock and Junior Preferred Stock
(and, following the occurrence of a Triggering Event, Common Stock and/or
other securities) issuable and deliverable upon the exercise of any Rights
may be listed on any United States national securities exchange or quoted
on any 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 any automated quotation system upon official notice of issuance upon
such exercise.
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(c)
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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) of this Agreement, a registration statement under the
Securities Act of 1933, with respect to any securities issuable upon
exercise of any 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 such 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 ninety (90) days after the date set forth in clause (i) of the
first sentence of this Section 9(c), the exercisability of any Series of
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 that the exercisability of such Series of
Rights has been temporarily suspended, as well as a public announcement at
such time as the suspension is no longer in effect. In addition, if the
Company shall determine that a registration statement is required
following the Distribution Date, the Company may temporarily suspend the
exercisability of any Series of Rights until such time as an appropriate
registration statement has been declared effective. Notwithstanding any
provision of this Agreement to the contrary, Rights shall not be
exercisable in any jurisdiction if any requisite qualification in such
jurisdiction shall not have been obtained, the exercise thereof shall not
be permitted under applicable law or a required registration statement
shall not have been declared
effective.
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(d)
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The
Company covenants and agrees that it will take all such action as may be
necessary to ensure that all Class A Preferred Stock and one
one-hundredths of a share of Junior 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.
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(e)
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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 Class A Preferred Stock or a number of one
one-hundredths of a share of Junior 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 Class
A Preferred Stock or a number of one one-hundredths of a share of Junior
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 Class A Preferred Stock or a number
of one one-hundredths of a share of Junior 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 Certificate at the time of surrender) or until it has been
established to the Company's satisfaction that no such tax is
due.
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Section 10. Preferred
Stock Record Date. Each Person in whose name any certificate for Class A
Preferred Stock or a number of one one-hundredths of a share of Junior 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 Class A Preferred Stock or fractional shares of Junior
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 upon such surrender and payment is a date upon which
the Class A Preferred Stock or Junior 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 Class A Preferred Stock or Junior 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.
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(a)
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(i)
In the event the Company shall at any time after the date of this
Agreement (A) declare a dividend on the Class A Preferred Stock payable in
shares of Class A Preferred Stock, (B) subdivide the outstanding Class A
Preferred Stock, (C) combine the outstanding Class A Preferred Stock into
a smaller number of shares or (D) issue any shares of its capital stock in
a reclassification of the Class A 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) or in Section 7(e) of this Agreement, 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 Class A Preferred
Stock or capital stock, as the case may be, issuable on such date, shall
be proportionately adjusted so that the holder of any Series A 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 Class A 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 Class A 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. In
the event, the Company shall at any time after the date of this Agreement
(I) declare a dividend on the Junior Preferred Stock payable in shares of
Junior Preferred Stock, (II) subdivide the outstanding Junior Preferred
Stock, (III) combine the outstanding Junior Preferred Stock into a smaller
number of shares or (IV) issue any shares of its capital stock in a
reclassification of the Junior 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) or in Section 7(e) of this Agreement, 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 Junior Preferred
Stock or capital stock, as the case may be, issuable on such date, shall
be proportionately adjusted so that the holder of any Series B 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 Junior 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 Junior 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
any event occurs which would require an adjustment under both this Section
11(a)(i) and Section 11(a)(ii) of this Agreement, the adjustment provided
for in this Section 11(a)(i) shall be made prior to, any adjustment
required pursuant to Section 11(a)(ii) of this
Agreement.
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(ii) In the
event:
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(A)
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any
Acquiring Person or any Associate or Affiliate of any Acquiring Person, at
any time after the date of this Agreement, directly or indirectly, (1)
shall merge into the Company or otherwise consolidate with the Company,
and the Company shall be the continuing or surviving corporation of such
merger or combination and the capital stock of the Company shall remain
outstanding and unchanged, (2) shall, in one transaction or a series
of transactions, transfer any assets to the Company or
to any of its Subsidiaries in exchange (in whole or in part) or shares of
Common Stock, for shares of other equity securities of the Company, or for
securities exercisable for or convertible into shares of equity securities
of the Company (Common Stock or otherwise), or otherwise obtain from the
Company, with or without consideration, any additional shares of such
equity securities or securities exercisable for or convertible into shares
of such equity securities (other than pursuant to a pro rata distribution
to all holders of a class of capital stock), (3) shall sell, purchase,
lease, exchange, mortgage, pledge, transfer or otherwise acquire or
dispose of, in one transaction or a series of transactions, to, from or
with (as the case may be) the Company or any of its Subsidiaries, assets
on term and conditions less favorable to the Company than the Company
would be able to obtain in arm's-length negotiations with an unaffiliated
third party, other than pursuant to a transaction to which Section 13(a)
applies, (4) shall sell, purchase, lease, exchange, mortgage, pledge,
transfer or otherwise acquire or dispose of, in one transaction or a
series of transactions, to, from or with (as the case may be) the Company
or any of its Subsidiaries (other than incidental to the lines of
business, if any engaged in as of the date of this Agreement between the
Company and such Acquiring Person or Associate or Affiliate) assets having
an aggregate fair market value of more than 3% of the total assets of the
Company, other than pursuant to a transaction to which Section 13(a) of
this Agreement applies, (5) shall receive any compensation from the
Company or any of its Subsidiaries other than compensation for full-time
employment as a regular employee at rates in accordance with the Company's
(or its Subsidiaries') past practices, or (6) shall receive the benefit,
directly or indirectly (except proportionately as a stockholder and except
if resulting from a requirement of law or governmental regulation), of any
loans, advances, guarantees, pledges or other financial assistance or any
tax credits or other tax advantage provided by the Company or any of its
Subsidiaries, or
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(B)
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any
Person shall, at any time after the Rights Dividend Declaration Date,
become an Acquiring Person, unless the event causing such Person to become
an Acquiring Person is (x) a transaction to which Section 13(a) of this
Agreement applies, (y) an acquisition of shares of Stock pursuant to a
tender offer or an exchange offer for all outstanding shares of Stock at a
price and on terms determined by at least a majority of the members of the
Board of Directors, after receiving advice from one or more nationally
recognized investment banking firms, to be (a) at a price which is fair to
stockholders (taking into account all factors which such members of the
Board deem relevant including, without limitation, prices which could
reasonably be achieved if the Company or its assets were sold on an
orderly basis designed to realize maximum value) and (b) otherwise in the
best interests of the Company and its stockholders, or (z) an acquisition
of shares of Stock pursuant to an all-cash tender offer for all
outstanding shares of Stock, as a result of which tender offer such Person
shall acquire beneficial ownership of shares of Stock which, together with
any shares of Stock held by such Person as of the date of consummation of
such tender offer, represent 85% of the total voting power of all the
outstanding securities of the Company entitled to vote generally on
matters presented to the stockholders of the Company,
or
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(C)
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during
such time as there is an Acquiring Person, there shall be any
reclassification of the Company's securities (including any reverse stock
split), or recapitalization or reorganization of the Company, or any
merger or consolidation of the Company with any of its Subsidiaries, or
any other transaction or series of transactions involving the Company or
any of its Subsidiaries, other than a transaction or transactions to which
the provisions of Section 13(a) apply (whether or not with or into or
otherwise involving an Acquiring Person) which has the effect, directly or
indirectly, of increasing by more than 1% the proportionate share of the
outstanding shares of any class of equity securities of the Company or any
of its Subsidiaries which is directly or indirectly beneficially owned by
any Acquiring Person or any Associate or Affiliate of any Acquiring
Person, then, promptly following the first occurrence of an event
described in Section 11(a)(ii)(A), (B) or (C) in this Agreement, proper
provision shall be made so that (x) each holder of a Series A Right
(except as provided below and in Section 7(e) in this Agreement) shall
thereafter have the right to receive, upon exercise thereof at the then
current Purchase Price attributable thereto in accordance with the terms
of this Agreement, in lieu of the number of shares of Class A Preferred
Stock that such Right was exercisable immediately prior to such event,
such number of shares of Class A Preferred Stock as shall equal the result
obtained by multiplying the then current Purchase Price by the number of
shares of Class A Preferred Stock for which such Right was exercisable
immediately prior to the first occurrence of a Section 11(a)(ii) Event,
and dividing that product (which, following such first occurrence, shall
thereafter be referred to as the "Purchase Price" for such Right for all
purposes of this Agreement) by 50% of the current market price (determined
pursuant to Section 11(d) of this Agreement)
per
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share of Class A Preferred
Stock on the date of such first occurrence such number of shares being
referred to as the "Adjustment Shares" attributable to such right),
and (y) each holder of a Series B Right (except as
provided below and in Section 7(e) of this Agreement) shall thereafter
have the right to receive, upon exercise thereof at the then current
Purchase Price attributable thereto in accordance with the terms of this
Agreement, in lieu of a number of one one-hundredths of a share of Junior
Preferred Stock, such number of shares of Common Stock of the Company as
shall equal the result obtained by multiplying the then current Purchase
Price by the number of one one-hundredths of a share of Junior Preferred
Stock for which a Right was exercisable immediately prior to the first
occurrence of a Section 11(a)(ii) Event, and dividing that product (which,
following such first occurrence, shall thereafter be referred to as the
"Purchase Price" for such Right for all purposes of this Agreement) by 50%
of the current market price (determined pursuant to Section 11(d) of this
Agreement) per share of Common Stock on the date of such first occurrence
(such number of shares being referred to herein as the "Adjustment Shares"
attributable to such Right).
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(iii)
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In
the event that, following the designation as Class A Preferred Stock of
any available unauthorized shares of "blank check" or undesignated
preferred stock in accordance with Section 9(a) in this Agreement, the
number of shares of Class A Preferred Stock which are authorized by the
Company's Restated Certificate of Incorporation but not outstanding or
reserved for issuance for purposes other than upon exercise of the Series
A Rights are not sufficient to permit the exercise in full of the Series A
Rights in accordance with Section 11(a)(ii), the Company shall: (A)
determine the excess of (1) the value of the Adjustment Shares issuable
upon the exercise of a Series A Right (the "Series A Current Value") over
(2) the Purchase Price attributable thereto (such excess being referred to
herein as the "Series A Spread"), and (B), make adequate provision, with
respect to each Series A Right, to substitute for the applicable
Adjustment Shares, upon payment of the applicable Purchase Price, (1)
cash, (2) a reduction in the Purchase Price, (3) Class A Preferred Stock
or other equity securities of the Company (including, without limitation,
equity securities which the Board of Directors of the Company has deemed
to have substantially the same rights, privileges, preferences and other
terms as shares of Class A Preferred Stock (such shares of equity
securities being referred to herein as "Class A Preferred Equivalents")),
(4) debt securities of the Company, (5) other assets, or (6) any
combination of the foregoing, having an aggregate value equal to the
Series A Current Value, where such aggregate value has been determined by
the Board of Directors of the Company based upon the advice of 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 value pursuant to clause (B) of this
sentence within thirty (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 23(a) expires (the later
of (x) and (y) being referred to herein as the "Section 11(a)(ii) Trigger
Date"), then the
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Company
shall be obligated to deliver, upon the surrender for exercise of a Series
A Right and without requiring payment of the Purchase Price, shares of
Class A Preferred Stock (to the extent available) and then, if necessary,
cash, which shares and/or cash have an aggregate value equal to the Series
A Spread. In the event that the number of shares of Common Stock which are
authorized by the Company's Restated Certificate of Incorporation, but not
outstanding or reserved for issuance for purposes other than upon exercise
of the Series B Rights are not sufficient to permit the exercise in full
of the Series B 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 Series
B Right (the "Series B Current Value") over (2) the Purchase Price
attributable thereto (such excess being referred to herein as the "Series
B Spread"), and (B) with respect to each Series B Right, make adequate
provision to substitute for the applicable 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, such as the Junior Preferred Stock, which the Board of Directors of
the Company has deemed to have substantially the same rights, privileges,
preferences and other terms as shares of Common Stock (such shares of
preferred stock being referred to herein as "Common Stock Equivalents")),
(4) debt securities of the Company, (5) other assets, or (6) any
combination of the foregoing, having an aggregate value equal to the
Current Value, 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 (which may be the same firm utilized for the purposes of the
preceding sentence); provided, however, if the Company shall not have made
adequate provision to deliver value pursuant to clause (B) of this
sentence within thirty (30) days following the Section 11(a)(ii) Trigger
Date, then the Company shall be obligated to deliver, upon the surrender
for exercise of a Series B Right and without requiring payment of the
applicable 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 Series B Spread. In connection with the
foregoing, if the Board of Directors of the Company shall determine in
good faith that it is likely that sufficient additional shares of Class A
Preferred Stock, Class A Preferred Equivalents, Common Stock or Common
Stock Equivalents, as the case may be, could be authorized for issuance
upon exercise in full of the appropriate Series of Rights, the thirty (30)
day period set forth above may be extended, to the extent necessary, but
not more than ninety (90) days after the Section 11(a)(ii) Trigger Date,
in order that the Company may seek stockholder approval for the
authorization of such additional shares (such period, as it may be
extended, being referred to herein as the "Substitution Period"). To the
extent that the Company determines that some action need be taken pursuant
to the first three sentences of this Section 11(a)(iii), the Company (x)
shall provide, subject to Section 7(a) of this Agreement, that such action
shall apply uniformly to the appropriate series of Rights, and (y) may
suspend the exercisability of the appropriate series of 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 the first or second sentence of this Section
11(a)(iii) 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 appropriate series 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) of this Agreement) per
share of the Common Stock on the Section 11(a)(ii) Trigger Date, the value
of any Common Stock Equivalent shall be deemed to be the same value as the
Common Stock on such date, multiplied by an appropriate multiple, the
value of the Class A Preferred Stock per share shall be the current market
price (as determined pursuant to Section 11(d) of this Agreement) per
share of Class A Preferred Stock on such date, and the value of any Class
A Preferred Equivalent shall be deemed to be the same value as the Class A
Preferred Stock on such date, multiplied by an appropriate
multiple.
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(b)
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In
case the Company shall fix a record date for the issuance of rights,
options or warrants to all holders of Class A Preferred Stock entitling
them to subscribe for or purchase (for a period expiring within forty-five
(45) calendar days after such record date) Class A Preferred Stock (or
shares of Class A Preferred Equivalents) or securities convertible into
Class A Preferred Stock or Class A Preferred Equivalents at a price per
share of Class A Preferred Stock or Class A Preferred Equivalents or per
share equivalents of Class A Preferred Equivalents (or having a conversion
price per share or share equivalent, if a security convertible into Class
A Preferred Stock or Class A Preferred Equivalents) less than the current
market price (as determined pursuant to Section 11(d) of this Agreement)
per share of Class A Preferred Stock on such record date, the Purchase
Price for each Series A Right to be in effect after such record date shall
be determined by multiplying the Purchase Price for a Series A Right in
effect immediately prior to such record date by a fraction, the numerator
of which shall be the number of shares of Class A Preferred Stock
outstanding on such record date, plus the number of shares of Class A
Preferred Stock which the aggregate offering price of the total number of
shares of Class A Preferred Stock and/or Class A Preferred Equivalents 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 Class A Preferred Stock outstanding on such record date, plus the
number of additional shares of Class A Preferred Stock and/or share
equivalents of Class A Preferred Equivalents to be offered for
subscription or purchase (or into which the convertible securities so to
be offered are initially convertible). In case the Company shall fix a
record date for the issuance of rights, options or warrants to all holders
of Junior Preferred Stock entitling them to subscribe for or purchase (for
a period expiring within forty-five (45) calendar days after such record
date) Junior Preferred Stock (or shares having the same rights, privileges
and preferences as the shares of Junior Preferred
Stock ("Junior Equivalent Preferred Stock")) or securities convertible
into Junior Preferred Stock or Junior Equivalent Preferred Stock at a
price per share of Junior Preferred Stock or per share equivalents of
Junior Equivalent Preferred Stock (or having a conversion price per share
or share equivalent, if a security convertible into Junior Preferred Stock
or Junior Equivalent Preferred Stock) less than the current market price
(as determined pursuant to Section 11(d) of this Agreement) per share of
Junior Preferred Stock on such record date, the Purchase Price for each
Series B Right to be in effect after such record date shall be determined
by multiplying the Purchase Price for a Series B Right in effect
immediately prior to such record date by a fraction, the numerator of
which shall be the number of shares of Junior Preferred Stock outstanding
on such record date, plus the number of shares of Junior Preferred Stock
which the aggregate offering price of the total number of shares of Junior
Preferred Stock and/or Junior 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 Junior
Preferred Stock outstanding on such record date, plus the number of
additional shares of Junior Preferred Stock and/or share equivalents of
Junior 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 any 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 Class A
Preferred Stock or Junior 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 adjustments shall be made successively whenever such a
record date is fixed, and in the event that such rights, options or
warrants are not so issued, the applicable Purchase Price for each Series
of Rights shall be adjusted to be the Purchase Price which would then be
in effect for such Series if such record date had not been
fixed.
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(c)
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In
case the Company shall fix a record date for a distribution to all holders
of Class A Preferred Stock (including any such distribution made in
connection with a consolidation or merger in which the Company is the
continuing corporation) of evidences of indebtedness, cash (other than a
regular quarterly cash dividend out of the earnings or retained earnings
of the Company), assets (other than a dividend payable in Class A
Preferred Stock, but including any dividend payable in stock other than
Class A Preferred Stock) or subscription rights or warrants (excluding
those referred to in Section 11(b) of this Agreement), the Purchase Price
for each Series A Right to be in effect after such record date shall be
determined by multiplying the Purchase Price for a Series A Right 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) of this Agreement) per share of Class A 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 Class A Preferred Stock and
the denominator of which shall be such current market price (as determined
pursuant to Section 11(d) of this Agreement) per share of Class A
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 for each Series A Right which would have been in
effect if such record date had not been fixed. In case the Company shall
fix a record date for a distribution to all holders of Junior Preferred
Stock (including any such distribution made in connection with a
consolidation or merger in which the Company is the continuing
corporation) of evidences of indebtedness, cash (other than a regular
quarterly cash dividend out of the earnings or retained earnings of the
Company), assets (other than a dividend payable in Junior Preferred Stock,
but including any dividend payable in stock other than Junior Preferred
Stock or subscription rights or warrants (excluding those referred to in
Section 11(b) of this Agreement), the Purchase Price for each Series B
Right in effect after such record date shall be determined by multiplying
the Purchase Price for a Series B Right 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) of this
Agreement) per share of Junior 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 Junior Preferred Stock, and
the denominator of which shall be such current market price (as determined
pursuant to Section 11(d) of this Agreement) per share of Junior 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 for each Series B Right shall be adjusted to be the
Purchase Price for a Series B Right which would have been in effect if
such record date had not been
fixed.
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(d)
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(i)
For the purpose of any computation hereunder, other than computations made
pursuant to Section 11(a)(iii) of this Agreement, the "current market
price" per share of Common Stock on any date shall be deemed to be the
average of the daily closing prices per share of such Common Stock for the
thirty (30) consecutive Trading Days (as such term is hereinafter defined)
immediately prior to such date, and for purposes of computations made
pursuant to Section 11(a)(iii) of this Agreement, the "current market
price" per share of Common Stock on any date shall be deemed to be the
average of the daily closing prices per share of such Common Stock for the
ten (10) consecutive Trading Days immediately following such date. 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 on the principal national securities exchange on which
the shares of Common Stock are listed or admitted to trading or, if the
shares of Common Stock are not listed or admitted to trading on any
national securities exchange, the last quoted price or if not so quoted,
the average of the high bid and low asked prices in the over-the-counter
market, as reported by the National Association of Securities Dealers,
Inc. Automated Quotation System ("NASDAQ") or such other system then in
use, or,
if on any such date the shares of Common Stock are not quoted by any such
organization, the average of the closing bid and asked prices as furnished
by a professional market maker making a market in the Common Stock
selected by the Board of Directors of the Company, or, if on any such date
no market marker 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; provided, however, that in the event that (x) a
closing price is included in the determination of current market price for
any day that is prior to (A) the ex-dividend date for a dividend or
distribution on such Common Stock payable in shares of such Common Stock,
securities convertible into shares of such Common Stock (other than the
Rights), evidences of indebtedness, cash (other than a regular quarterly
dividend of the issuer), assets (including dividends payable in
securities, other than the Rights) or subscription rights (other than the
Rights) or warrants or (B) the effective date for any subdivision,
combination or reclassification of such Common Stock, and (y) such
ex-dividend date or effective date occurs within the thirty (30) Trading
Day or ten (10) Trading Day period for the determination of current market
price, then, and in each such case, the closing price on such day shall be
appropriately adjusted. 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, any day on which trading
takes place in the over-the-counter market and prices reflecting such
trading are reported by NASDAQ or such other system then in use or, if the
shares of Common Stock are not quoted by any such organization, 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.
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(ii)
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For
the purpose of any computation hereunder, the "current market price" per
share of Class A 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 Class A Preferred Stock cannot be determined in the manner
provided above, or if the Class A 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 Class A Preferred Stock
shall be conclusively deemed to be an amount equal to 1 (as such number
may be appropriately adjusted for such events as stock splits, stock
dividends and recapitalizations with respect to the Common Stock or the
Class A Preferred Stock occurring after the date of this Agreement)
multiplied by the current market price per share of the Common Stock,
provided that if neither the Common Stock nor the Class A Preferred Stock
is publicly held or so listed or traded, "current market price" per share
of the Class A 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.
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(iii)
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For
the purpose of any computation hereunder, the "current market price" per
share of Junior 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 Junior Preferred Stock cannot be determined in the manner
provided above or if the Junior 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 Junior 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 or the
Junior Preferred Stock occurring after the date of this Agreement)
multiplied by the current market price per share of the Common Stock,
provided that if neither the Common Stock nor the Junior Preferred Stock
is publicly held or so listed or traded, "current market price" per share
of the Junior Preferred Stock is publicly held or so listed or traded,
"current market price" per share of the Junior 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 Junior Preferred Stock shall be equal
to the current market price" of one share of Junior Preferred Stock
divided by 100.
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(e)
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Anything
herein to the contrary notwithstanding, no adjustment in the Purchase
Price attributable to any Series of Rights shall be required unless such
adjustment would require an increase or decrease of at least one percent
(1%) in such 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 Class A Preferred
Stock or other share or one-millionth of a share of Junior Preferred
Stock, as the case may be. Notwithstanding the first sentence of this
Section 11(e), any adjustment required by this Section 11 shall be made no
later than the earlier of (i) three (3) years from the date of the
transaction which mandates such adjustment, or (ii) the Expiration
Date.
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(f)
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If
as a result of an adjustment made pursuant to Section 11(a)(ii) or Section
13(a) of this Agreement, the holder of any Series A Right thereafter
exercised shall become entitled to receive any shares of capital stock
other than Class A Preferred Stock, thereafter the number of such other
shares so receivable upon exercise of any Series A 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 Class A 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 of this Agreement with respect to the Class A
Preferred Stock shall apply on like terms to any such other shares. If as
a result of an adjustment made pursuant to Section 11(a)(ii) or Section
13(a) of this Agreement,
the holder of any Series B Right thereafter exercised shall become
entitled to receive any shares of capital stock other than Junior
Preferred Stock, thereafter the number of such other shares so receivable
upon exercise of any Series B 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
Junior 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 of this Agreement with respect to the Junior Preferred Stock shall
apply on like terms to any such other
shares.
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(g)
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All
Series A Rights originally issued by the Company subsequent to any
adjustment made to the Purchase Price for a Series A Right hereunder shall
evidence the right to purchase, at the adjusted Purchase Price, the number
of shares of Class A Preferred Stock purchasable from time to time
hereunder upon exercise of the Series A Rights, all subject to further
adjustment as provided herein. All Series B Rights originally issued by
the Company subsequent to any adjustment made to the Purchase Price for a
Series B Right hereunder shall evidence the right to purchase, at the
adjusted Purchase Price, the number of one one-hundredths of a share of
Junior Preferred Stock purchasable from time to time hereunder upon
exercise of the Series B Rights, all subject to further adjustment as
provided herein.
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(h)
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Unless
the Company shall have exercised its election as provided in Section
11(i), upon each adjustment of the Purchase Price attributable to the
Series A Rights as a result of the calculations made in Sections 11(b) and
(c), each Series A 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 shares of Class A Preferred Stock
(calculated to the nearest ten-thousandth) obtained by (i) multiplying (x)
the number of shares covered by a Series A Right immediately prior to such
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. Unless the Company shall have exercised its
election as provided in Section 11(i), upon each adjustment of the
Purchase Price attributable to the Series B Rights as a result of the
calculations made in Sections 11(b) and (c), each Series B 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 Junior 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 Series B Right
immediately prior to such 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.
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(i)
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The
Company may elect on or after the date of any adjustment of the Purchase
Price attributable to the Series A Rights to adjust the number of Series A
Rights, in lieu of any adjustment in the number of shares of Class A
Preferred Stock purchasable upon the exercise of a Series A Right. Each of
the Series A Rights outstanding after the adjustment in the number of
Series A Rights shall be exercisable for the number of shares of Class A
Preferred Stock for which a Series A Right was exercisable immediately
prior to such adjustment. Each Series A Right held of record prior to such
adjustment of the number of Series A Rights shall become that number of
Series A Rights (calculated to the nearest one ten-thousandth) obtained by
dividing the Purchase Price attributable to the Series A Rights in effect
immediately prior to adjustment of such Purchase Price by the Purchase
Price in effect immediately after such adjustment of the Purchase Price.
The Company may elect on or after the date of any adjustment of the
Purchase Price attributable to the Series B Rights to adjust the number of
Series B Rights, in lieu of any adjustment in the number of one
one-hundredths of a share of Junior Preferred Stock purchasable upon the
exercise of a Series B Right. Each of the Series B Rights outstanding
after the adjustment in the number of Series B Rights shall be exercisable
for the number of one one-hundredths of a share of Junior Preferred Stock
for which a Series B Right was exercisable immediately prior to such
adjustment. Each Series B Right held of record prior to such adjustment of
the number of Series B Rights shall become that number of Series B Rights
(calculated to the nearest one ten-thousandth) obtained by dividing the
Purchase Price attributable to the Series B Rights in effect immediately
prior to such adjustment of such Purchase Price by the Purchase Price in
effect immediately after adjustment of the Purchase Price. In each case,
the Company shall make a public announcement of its election to adjust the
number of either Series 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 any Purchase Price is
adjusted or any day thereafter, but, if the Rights Certificates have been
issued, shall be at least ten (10) days later than the date of the public
announcement. If Rights Certificates have been issued, upon each
adjustment of the number of either Series 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 for such Series of
Rights on such record date Rights Certificates evidencing, subject to
Section 14 of this Agreement, 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.
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|
(j)
|
Irrespective
of any adjustment or change in the Purchase Price or the number of shares
of Class A Preferred Stock or the number of one one-hundredths of a share
of Junior Preferred Stock issuable upon the exercise of Rights, the Rights
Certificates hereof and thereafter issued may continue to express the
Purchase Price per share of Class A Preferred Stock and the number of
shares of Class A Preferred Stock, or the Purchase Price per one
one-hundredth of a share of Junior Preferred Stock and the number of one
one-hundredths of a share of Junior Preferred Stock, which were expressed
in the initial Rights Certificates issued
hereunder.
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(k)
|
Before
taking any action that would cause an adjustment reducing the Purchase
Price below the then stated or par value, if any, of the number of shares
of Class A Preferred Stock or the number of one one-hundredths of a share
of Junior Preferred Stock, issuable upon exercise of a Right, 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 such
number of fully paid and nonassessable shares of Class A Preferred Stock,
or one one-hundredths of a share of Junior Preferred Stock, at such
adjusted Purchase Price.
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(l)
|
In
any case in which this Section 11 shall require that an adjustment in the
Purchase Price for any Series of Rights 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 shares of Class A Preferred Stock or
the number of one one-hundredths of a share of Junior Preferred Stock
and/or the other capital stock or securities of the Company, if any,
issuable upon exercise of such Series of Rights over and above the number
of shares of Class A Preferred Stock or the number of one one-hundredths
of a share of Junior Preferred Stock and/or the 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.
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(m)
|
Anything
in this Section 11 to the contrary notwithstanding, the Company shall be
entitled to make such reductions in the Purchase Price for any Series of
Rights, 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 Class A Preferred Stock
or Junior Preferred Stock, (ii) issuance wholly for cash of any shares of
Class A Preferred Stock or Junior Preferred Stock at less than the current
market price, (iii) issuance wholly for cash of shares of Class A
Preferred Stock or Junior Preferred Stock or securities which by their
terms are convertible into or exchangeable for shares of Class A Preferred
Stock or Junior 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 Class A Preferred Stock or Junior
Preferred Stock, shall not be taxable to such
stockholders.
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(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) of this Agreement), (ii) merge with or into any other Person (other
than a Subsidiary of the Company in a transaction which complies with
Section 11(o) of this Agreement), or (iii) sell or transfer (or permit any
Subsidiary to sell or transfer), in one transaction, or a series of
related transactions, assets or earnings 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) of this Agreement), 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) of this Agreement
shall have received a distribution of Rights previously owned by such
Person or any of its Affiliates or
Associates.
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(o)
|
The
Company covenants and agrees that, after the Distribution Date, it will
not, except as permitted by Section 23 or Section 26 of this Agreement,
take (or permit any Subsidiary of the Company 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.
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(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) pay a dividend on the outstanding
shares of Class A Preferred Stock payable in shares of Class A Preferred
Stock, (ii) subdivide the outstanding shares of Class A Preferred Stock,
(iii) combine the outstanding shares of Class A Preferred Stock into a
smaller number of shares or (iv) issue any shares by reclassification of
its shares of Class A Preferred Stock, the number of Series A Rights
associated with each share of Class A Preferred Stock then outstanding, or
issued or delivered thereafter but prior to the Distribution Date, shall
be proportionately adjusted so that the number of Series A Rights
thereafter associated with each share of Class A Preferred Stock following
the record or effective date for any such event shall equal the result
obtained by multiplying the number of Series A Rights associated with each
share of Class A Preferred Stock immediately prior to such record date or
effective date by a fraction, the numerator of which shall be the total
number of shares of Class A Preferred Stock outstanding immediately prior
to such record date or effective date and the denominator of which shall
be the total number of shares of Class A Preferred Stock outstanding
immediately following such record date (giving pro forma effect to the
payment of the dividend) or such effective date. 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) pay a dividend on the outstanding shares of
Common Stock payable in shares of Common Stock, (ii)
subdivide the outstanding shares of Common Stock, (iii) combine the
outstanding shares of Common Stock into a smaller number of shares or (iv)
issue any shares by reclassification of its shares of Common Stock, the
number of Series B Rights associated with each share of Common Stock then
outstanding, or issued or delivered thereafter but prior to the
Distribution Date, shall be proportionately adjusted so that the number of
Series B Rights thereafter associated with each share of Common Stock
following the record or effective date for any such event shall equal the
result obtained by multiplying the number of Series B Rights associated
with each share of Common Stock immediately prior to such record date or
effective date by a fraction, the numerator of which shall be the total
number of shares of Common Stock outstanding immediately prior to such
record date or effective date, and the denominator of which shall be the
total number of shares of Common Stock outstanding immediately following
such record date (giving pro forma effect to the payment of the dividend)
or such effective date. The adjustments provided for in this Section 11(p)
shall be made successively whenever such a dividend is declared or such a
subdivision, combination or reclassification is
effected.
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Section 12.
Certificate of Adjusted Purchase Price or Number of Shares. Whenever an
adjustment is made as provided in Section 11 or Section 13 of this Agreement,
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
Class A Preferred Stock, the Junior Preferred Stock and the Common Stock, a copy
of such certificate, and (c) 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 Class A Preferred Stock or Common Stock) in
accordance with Section 25 of this Agreement. 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 Property, Assets or Earning
Power.
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(a)
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In
the event that, on or following the Stock Acquisition Date, directly or
indirectly, (x) the Company shall consolidate with, or merge with and
into, any other Person (other than a Subsidiary of the Company in a
transaction which complies with Section 11(o) of this Agreement), and the
Company shall not be the continuing or surviving corporation of such
consolidation or merger, (y) any Person (other than a Subsidiary of the
Company in a transaction which complies with Section 11(o) of this
Agreement) shall consolidate with, or merge with or into, the Company, and
the Company shall be the continuing or surviving corporation or such
consolidation or merger and, in connection with such consolidation or
merger, all or part of the outstanding shares of capital stock of the
Company shall be changed (including, without limitation, any conversion)
into or exchanged for stock or other securities of any other Person (or
the Company) or cash or any other property, or (z) the Company shall
directly or indirectly sell, lease, exchange, mortgage, pledge (other than
pledge in the ordinary course of the Company's financing activities) or
otherwise transfer or dispose of (or one or more of its Subsidiaries shall
sell or otherwise transfer), in one transaction or a series of related
transactions, property or assets or earning power aggregating more than
50% of the property assets or earning power of the Company and its Subsidiaries
(taken as a whole) to any Person or Persons (other than the Company or any
Subsidiary of the Company in one or more transactions each of which
complies with Section 11(o) of this Agreement), then, and in each such
case (except as may be contemplated by Section 13(d) of this Agreement),
proper provision shall be made so that: (i) each holder of a Series A
Right, except as provided in Section 7(e) of this Agreement, 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 tradeable shares of Class A Preferred Stock of
the Principal Party, not subject to any liens, encumbrances, rights of
first refusal or other adverse claims, as shall be equal to the result
obtained by (1) multiplying the then current Purchase Price by the number
of shares of Class A Preferred Stock for which a Series 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 shares for
which a Series 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 Series A Right for all
purposes of this Agreement) by (2) 50% of the current market price
(determined pursuant to Section 11(d) of this Agreement) per share of the
Class A Preferred Stock of such Principal Party on the date of
consummation of such Section 13 Event; (ii) each holder of a Series B
Right, except as provided in Section 7(e) of this Agreement, 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 tradeable shares of Common Stock of
the Principal Party, not subject to any liens, encumbrances, rights of
first refusal or other adverse claims, as shall be equal to the result
obtained by (1) multiplying the then current Purchase Price by the number
of one one-hundredths of a share of Junior Preferred Stock for which a
Series B 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 Series B 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 by (2) 50% of the current market price
(determined pursuant to Section 11(d) of this Agreement) per share of this
Common Stock of such Principal Party on the date of consummation of such
Section 13 Event; (iii) 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; (iv) the
term "Company" shall thereafter be deemed to refer to such Principal
Party, it being specifically intended that the provisions of Section 11 of
this Agreement shall apply only to such Principal Party following the
first occurrence of a Section 13 Event; (v) such Principal Party shall
take such steps (including, but not limited to, the creation and
reservation of an appropriate number of shares of Class A Preferred Stock
and reservation of a sufficient number of shares of its Common Stock) in
connection with the consummation of any such transaction as may be
necessary to assure that the
provisions of this Agreement shall thereafter be applicable, as nearly as
reasonably may be, in relation to its shares of Class A Preferred Stock
and Common Stock thereafter deliverable upon the exercise of the Rights;
and (vi) the provisions of Section 11(a)(ii) of this Agreement shall be of
no effect following the first occurrence of any Section 13
Event.
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(b)
|
The
Company shall not consummate any such consolidation, merger, sale or
transfer (i) unless the Principal Party shall have created and have
available a sufficient number of shares of Class A Preferred Stock, and
shall have available a sufficient number of authorized shares of its
Common Stock, which in each case have not been issued or reserved for
issuance, to permit the exercise in full of the Rights in accordance with
this Section 13, and (ii) 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 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
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(i)
|
will
prepare and file a registration statement under the Securities 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
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(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.
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|
|
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 hereof been exercised shall
thereafter become exercisable in the manner described in Section
13(a).
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|
(c)
|
Notwithstanding
anything in this Agreement to the contrary, Section 13 shall not be
applicable to a transaction described in Section 13(a) if (i) such
transaction is consummated with a Person or Persons who acquired shares of
Stock pursuant to (A) a tender offer or exchange offer for all outstanding
shares of Stock which complies with the provisions of Section
11(a)(ii)(B)(y) of this Agreement or (B) a tender offer for all
outstanding shares of Stock which complies with the provisions of Section
11(a)(ii)(B)(z) of this Agreement (or, in each case, a wholly owned
Subsidiary of any such Person or Persons), (ii) the price per share of
each class of Stock offered in such transaction is not less than the price
per share paid to all holders of shares of such class of Stock whose
shares were purchased pursuant to such tender offer or exchange offer and
(iii) the form of consideration being offered to the remaining holders of
shares of each class of Stock pursuant to such transaction is the same as
the form of consideration paid
to the holders of such class of Stock pursuant to such tender offer or
exchange offer. Upon consummation of any such transaction contemplated by
this Section 13(d), all Rights hereunder shall
expire.
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Section 14.
Fractional Rights and Fractional Shares.
|
(a)
|
The
Company shall not be required to issue fractional rights, except prior to
the Distribution Date, or to distribute Rights Certificates which evidence
fractional Rights. In lieu of such fractional Rights, the Company may at
its option pay 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 of either Series shall be the closing price of the
appropriate Series of Rights for the Trading Day immediately prior to the
date on which such fractional Rights would have been otherwise issuable.
The closing price of either Series of 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 on the principal national
securities exchange on which such Rights are listed or admitted to
trading, or if such Rights are not listed or admitted to trading on any
United States national securities exchange, the last quoted sale price or,
if not so quoted, the average of the high bid and low asked prices in the
over-the-counter market, as reported by NASDAQ or such other system then
in use; if on any such date such 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 such Rights selected by
the Board of Directors of the Company; if on any such date no such market
maker is making a market in such Rights, the fair value of such Rights on
such date as determined in good faith by the Board of Directors of the
Company.
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(b)
|
The
Company shall not be required to issue fractions of shares of Class A
Preferred Stock or fractional shares of Junior Preferred Stock (other than
fractions which are integral multiples of one one-hundredth of a share of
Junior Preferred Stock) upon exercise of the Rights or to distribute
certificates which evidence fractional shares of Class A Preferred Stock
or fractional shares of Junior Preferred Stock (other than fractions which
are integral multiples of one one-hundredth of a share of Junior Preferred
Stock). In lieu of fractional shares of Class A Preferred Stock or
fractional shares of Junior Preferred Stock that are not integral
multiples of one one-hundredth of a share of Junior 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 a share of Class A
Preferred Stock or of one one-hundredth of a share of Junior Preferred
Stock, as the case may be. For purposes of this Section 14(b), the current
market value of a share of Class A Preferred Stock shall be the closing
price of a share of Class A Preferred Stock (as determined pursuant to
Section 11(d) of this Agreement) for the Trading Day immediately prior to
the date of such exercise, and the current market value of one
one-hundredth of a share of Junior Preferred Stock shall be one
one-hundredth of the closing price of a share of Junior Preferred Stock
(as determined
pursuant to Section 11(d) of this Agreement) for the Trading Day
immediately prior to the date of such
exercise.
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(c)
|
Following
the occurrence of a Triggering Event, the Company shall not be required to
issue fractions of shares of Class A Preferred Stock or Common Stock upon
exercise of the Rights or to distribute certificates which evidence
fractional shares of Class A Preferred Stock or Common Stock. In lieu of
fractional shares of Class A Preferred Stock or Common 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 (1) share of Class A
Preferred Stock or Common Stock. For purposes of this Section 14(c), the
current market value of one share of Class A Preferred Stock or Common
Stock shall be the closing price of one share of Class A Preferred Stock
or Common Stock (as determined pursuant to Section 11(d) of this
Agreement) for the Trading Day immediately prior to the date of such
exercise.
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(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.
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Section 15. Rights of
Action. All rights of action in respect of this Agreement are vested in the
respective registered holders of the Rights Certificates (and, prior to the
Distribution Date, the registered holders of the Stock); and any registered
holder of any Rights Certificate (or, prior to the Distribution Date, of the
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 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 or any Principal Party to
enforce, or otherwise act in respect of, his rights pursuant to 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 subject to this Agreement.
Section 16. Agreement
of Rights Holders Concerning Transfer and Ownership of Rights. 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:
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(a)
|
prior
to the Distribution Date, the Rights will be transferable only in
connection with the transfer of
Stock;
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(b)
|
after
the Distribution Date, the Rights Certificates will only be transferable
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;
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(c)
|
subject
to Section 6(a) and Section 7(f) of this Agreement, 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 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 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) of this Agreement, shall be required to be
affected by any notice to the
contrary;
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(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,
that the Company must use its best efforts to have any such order, decree
or ruling lifted or otherwise overturned as soon as possible;
and
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(e)
|
notwithstanding
anything in this Agreement to the contrary, to the extent (i) any Excepted
Person or member of an Excepted Group shall be the holder of a Series A
Right, (ii) a Triggering Event shall have occurred and such Series A Right
shall have become exercisable hereunder for Class A Preferred Stock or
Class A Preferred Equivalents, and (iii) a majority of the members of the
Board of Directors who are not officers or employees of the Company or any
of its Subsidiaries and who are not representatives, nominees, Affiliates
or Associates of an Acquiring Person shall have determined, after
consultation with legal counsel, that the exercise of such Series A Right
for Class A Preferred Stock would violate Rule 19c-4 of the General Rules
and Regulations under the Exchange Act, such Excepted Person or member of
an Excepted Group shall, immediately upon exercise of such Series A Right,
promptly convert the Class A Preferred Stock or Class A Preferred
Equivalents issued to him upon such exercise to Common Stock in accordance
with the terms of such Class A Preferred Stock or Class A Preferred
Equivalents; provided, however, that no Excepted Person or member of an
Excepted Group shall be required hereunder to so convert any Class A
Preferred Stock or Class A Preferred Equivalent to the extent that (x) the
percentage of the total voting power of all outstanding voting securities
of the Company represented by the securities of the Company beneficially
owned by such Excepted Person or member of an Excepted Group (after giving
effect to such conversion) would be less than (y) the percentage of the
total voting power of all voting securities of the Company outstanding as
of immediately prior to such Triggering Event represented by the
securities of the Company beneficially owned by such Excepted Person or
member of an Excepted Group as of immediately prior to such Triggering
Event.
|
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 distributions or be
deemed for any purpose the holder of the number of shares of Class A Preferred
Stock or the number of one one-hundredths of a share of Junior Preferred Stock
or any other securities, cash or other property of the Company which may at any
time be issuable on the exercise of the Rights represented thereby, nor shall
anything contained in this Agreement 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 including, without limitation, 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 24 of this Agreement), or to receive dividends,
distributions or subscription rights, or otherwise, until the Right or Rights
evidenced by such Rights Certificate shall have been exercised in accordance
with the provisions of this Agreement.
Section 18.
Concerning the Rights Agent.
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(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.
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(b)
|
The
Company also agrees to indemnify the Rights Agent for, and to hold it
harmless against, any loss, liability, or expense, incurred without
negligence, bad faith or willful misconduct or breach of this Agreement 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. The Rights Agent agrees to notify the
Company of the written assertion of any claim against the Rights Agent or
of any action commenced against the Rights Agent, with respect to which
the Rights Agent intends to seek indemnity under this Section 18(b),
promptly after the Rights Agent shall have received such written assertion
of a claim or shall have been served with the summons or other first legal
process giving information as to the nature and basis of the claim. The
Company will be entitled to participate at its own expense in the defense,
and, if the Company so elects at any time after receipt of such notice,
the Company may assume the defense, of any suit brought to enforce any
such claim. In the event that the Company assumes the defense of any such
suit, the Company will not be liable for any counsel fees and expenses
thereafter incurred by the Rights Agent. The Company will not be liable
for any settlement of any such claim or action effected without its
written consent. This indemnification shall survive the termination of
this Agreement.
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(c)
|
The
Rights Agent shall be protected and shall incur no liability for or in
respect of any action taken, suffered or omitted by it in connection with
its administration of this Agreement in reliance upon any Rights
Certificate or certificate for 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 reasonably 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.
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Section 19. Merger or
Consolidation or Change of Name of Rights Agent.
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(a)
|
Any
corporation into which the Rights Agent or any successor Rights Agent may
be merged or with which it may be consolidated, or any corporation
resulting from any merger or consolidation to which the Rights Agent or
any successor Rights Agent shall be a party, or any corporation succeeding
to the corporate trust or stock transfer business of the Rights Agent or
any successor Rights Agent, shall be the successor to the Rights Agent
under this Agreement without the execution or filing of any document 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 of this
Agreement. 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.
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(b)
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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.
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Section 20. Duties of
Rights Agent. The Rights Agent undertakes and agrees 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:
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(a)
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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.
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(b)
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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 (or any Affiliate
or associate of an 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 specifically prescribed in this Agreement) may be
deemed to be conclusively proved and established by a certificate signed
by the Chairman, any Vice Chairman, the President, any Vice President
thereunto duly authorized, the Treasurer, any Assistant Treasurer, the
Secretary or any Assistant Secretary of the Company and delivered to the
Rights Agent; and such certificate shall be full authorization to the
Rights Agent for any action taken or omitted by it in good faith under the
provisions of this Agreement in reliance upon such
certificate.
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(c)
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The
Rights Agent shall be liable hereunder only for its own negligence, bad
faith or willful misconduct or breach of this Agreement by it or its
attorneys or agents.
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(d)
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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.
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(e)
|
The
Rights Agent shall not be under any responsibility in respect of the
validity of this Agreement or the execution and delivery of this Agreement
(except the due execution and delivery f this Agreement by the Rights
Agent) or in respect of the validity or execution of any Rights
Certificate (except its countersignature thereof); nor shall it be
responsible for any breach by the Company of any covenant or condition
contained in this Agreement or in any Rights Certificate; nor shall it be
responsible for any adjustment required under the provisions of Section 11
or Section 13 of this Agreement 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 Class A Preferred Stock, Common Stock or Junior Preferred
Stock to be issued pursuant to this Agreement or any Rights Certificate or
as to whether any shares of Class A Preferred Stock, Common Stock or
Junior Preferred Stock will, when so issued, be validly authorized and
issued, fully paid and
nonassessable.
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(f)
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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 its duties and obligations under this
Agreement.
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(g)
|
The
Rights Agent is hereby authorized and directed to accept instructions with
respect to the performance of its duties hereunder from the Chairman, any
Vice Chairman, the President, any Vice President thereunto duly
authorized, the Secretary, any Assistant Secretary, the Treasurer or any
Assistant Treasurer of the Company, and to apply to such officers for
advice or instructions in connection with its duties, and it shall not be
liable for any action taken or omitted to be taken by it in good faith in
accordance with instructions of any such
officer.
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(h)
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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
the Rights Agent were not serving as such under this Agreement. Nothing in
this Agreement shall preclude the Rights Agent from acting in any other
capacity for the Company or for any other legal
entity.
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(i)
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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 of such attorneys
or agents.
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(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 hereunder 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 the Rights
Agent.
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(k)
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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.
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Section 21. Change of
Rights Agent. The Rights Agent or any successor Rights Agent may resign and be
discharged from its duties under this Agreement upon thirty (30) days' notice in
writing mailed to the Company, and to each transfer agent of the Class A
Preferred Stock, the Common Stock and the Junior 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
not less than ten (10) 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
Class A Preferred Stock, the Common Stock and Junior 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, the Company shall appoint a successor to
the Rights Agent. Notwithstanding any other provision of this Agreement, in no
event shall the resignation or removal of a Rights Agent be effective until a
successor Rights Agent shall have been appointed and have accepted such
appointment. If the Company shall fail to make such appointment within a period
of thirty (30) days after giving notice of such removal or after it has been
notified in writing of such resignation or incapacity by the resigning or
incapacitated Rights Agent or by the 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 (i)
a corporation 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 $100,000,000 or (ii) an affiliate of a corporation described
in clause (i) 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 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 per share and the number or kind or class of shares or other securities or
property purchasable under the Rights Certificates made in accordance with the
provisions of this Agreement or which, in the opinion of the Board of Directors,
is otherwise necessary or appropriate to reflect the occurrence of any of the
events referred to in Section 11 or Section 13 of this Agreement. In addition,
in connection with the issuance or sale of shares of Stock following the
Distribution Date and prior to the redemption or expiration of the Rights, the
Company (a) shall, with respect to shares of Stock so issued or sold pursuant to
the exercise of stock options or under any employee plan or arrangement, or upon
the exercise, conversion or exchange of securities, notes or debentures granted,
awarded or issued prior to the Distribution Date, 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 and
Series 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, and (ii) no such Rights
Certificate shall be issued if, and to the extent that, appropriate adjustment
shall otherwise have been made in lieu of the issuance thereof.
Section 23.
Redemption and Termination.
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(a)
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The
Board of Directors of the Company may, at its option, at any time prior to
the earlier of (i) the Close of Business on the tenth day following the
Stock Acquisition Date (or, if the Stock Acquisition Date shall have
occurred prior to the Record Date, the Close of Business on the tenth day
following the Record Date), or (ii) the 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, stock dividend or similar transaction occurring after the
date of this Agreement (such redemption price being hereinafter referred
to as the "Redemption Price"). Notwithstanding anything contained in this
Agreement to the contrary, the Rights shall not be exercisable after the
first occurrence of a Section 11(a)(ii) Event until such time as the
Company's right of redemption hereunder has expired. The Company may, at
its option, pay the Redemption Price in cash, fractional shares, shares of
a Class A Preferred Stock (in the case of Series A Rights), Common Stock
(in the case of Series B Rights) (in each case based on the "current
market price," as defined in Section 11(d) of this Agreement, of such
shares at the time of redemption) or any other form of consideration
deemed appropriate by the Board of
Directors.
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(b)
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Immediately
upon the action of the Board of Directors of the Company ordering the
redemption of the Rights, evidence of which shall have been filed with the
Rights Agent, and without any further action and without any notice, the
right to exercise the Rights will terminate and the only right thereafter
of the holders of Rights shall be to receive the Redemption Price 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 Stock. Any notice which is mailed in the manner
herein provided shall be deemed given, whether or not the holder receives
the notice. Each such notice of redemption will state the method by which
the payment of the Redemption Price will be made. In any case, failure to
give such notice by mail, or any defect in the notice, to any particular
holder of Rights shall not affect the sufficiency of the notice to other
holders of Rights. In the case of a redemption permitted under this
Section 23, the Company may, at its option, discharge all of its
obligations with respect to the Rights by (i) issuing a press release
announcing the manner of redemption of the Rights and (ii) mailing payment
of the Redemption Price to the registered holders of the Rights at their
last addresses as they appear on the registry books of the Rights Agent
or, prior to the issuance of the Rights Certificates, on the registry
books of the transfer agent for the Common Stock, and upon such action,
all outstanding Rights Certificates shall be null and void without any
further action by the Company. 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 as specifically set forth in
this Section 23 and other than in connection with the purchase of shares
of Common Stock prior to the earlier of the Distribution Date and the
Expiration Date.
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Section 24. Notice of
Certain Events.
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(a)
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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
Class A Preferred Stock or Junior Preferred Stock or to make any other
distribution to the holders of Class A Preferred Stock or Junior 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
Class A Preferred Stock or Junior Preferred Stock rights or warrants to
subscribe for or to purchase any additional shares of Class A Preferred
Stock or Junior Preferred Stock or shares of stock of any class or any
other securities, rights or options, or (iii) to effect any
reclassification of its Class A Preferred Stock or Junior Preferred Stock
(other than a reclassification involving only the subdivision of
outstanding shares of Class A Preferred Stock or Junior 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) of this Agreement), or to effect any sale,
lease, exchange or other transfer or disposition (or to permit one or more
of its Subsidiaries to effect any sale, lease, exchange or other transfer
or disposition), 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) of this Agreement), 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 25 of
this Agreement, 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, lease, exchange, transfer, disposition,
liquidation, dissolution or winding up is to take place and the date of
participation therein by the holders of the shares of Class A Preferred
Stock or Junior Preferred Stock, if any such date is to be fixed, and such
notice shall be so given in the case of any action covered by clause (i)
or (ii) above at least twenty (20) days prior to the record date for
determining holders of the shares of Class A Preferred Stock or Junior
Preferred Stock for purposes of such action, and in the case of any such
other action, at least twenty (20) days prior to the date of
participation therein by the holders of the shares of Class A Preferred
Stock or Junior Preferred Stock, whichever shall be the
earlier;
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(b)
|
In
case any of the events set forth in Section 11(a)(ii) or Section 13(a) of
this Agreement 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 23 of
this Agreement, 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) or Section 13 of this Agreement, and (ii) all
references in the preceding paragraph to Junior Preferred Stock shall be
deemed thereafter to refer to Common Stock and/or, if appropriate, other
securities.
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The failure to give notice as required
by this Section 24 or any defect therein shall not affect the legality or
validity of the action taken by the Company or the vote upon any such action.
Section 25. 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 if filed in writing with the
Rights Agent) as follows or delivered in person to the following
address:
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: General
Counsel
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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 or
delivered in person to the following
address:
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American Stock Transfer & Trust
Company
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
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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 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 or delivered
in person to such address.
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Section
26. Supplements and Amendments. Prior to the Distribution Date,
the Company and the Rights Agent shall, if the Company so directs, supplement or
amend any provision of this Agreement without the approval of any holders of
certificates representing shares of Stock, and without any further action and
without notice, such amendment or supplement should be deemed effective. From
and after the Distribution Date the Company may, and the Rights Agent shall if
the Company so directs, supplement or amend this Agreement without the approval
of any holder 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 provision contained herein, (iii) to extend the
Expiration Date or any other time period hereunder, or (iv) to change or
supplement the provisions hereunder in any manner which the Company may deem
necessary or desirable and which shall not adversely affect the interests of the
holders of Rights (other than an Acquiring Person or an Affiliate or Associate
of an Acquiring Person); provided, this Agreement may not be supplemented or
amended to lengthen, pursuant to clause (iii) of this sentence, (A) 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. Without limiting the foregoing, the
Company and the Rights Agent shall, if the Company so directs, amend this
Agreement to lower the thresholds set forth in Sections 1(a) and 3(a) to not
less than 10%; provided, however, that if any Person, at the time the threshold
with respect to the determination of a Person's becoming an Acquiring Person is
so lowered, beneficially owns shares of Common Stock in excess of such lowered
threshold and was not an Acquiring Person immediately prior to such time, such
Person shall not become an Acquiring Person by virtue of such threshold having
been lowered unless and until such Person shall thereafter become, alone or
together with its Affiliates and Associates, the Beneficial Owner of any
additional shares of Common Stock (other than (x) through the exercise of any
presently outstanding options, or the issuance hereafter by the Company of any
options, stock appreciation rights or other securities convertible into or
exercisable for stock (or the exercise of any such options, rights or other
securities), (y) as a result of a dividend by the Company payable in stock or
securities convertible into or exercisable for stock, or (z) by reason of the
acquisition
by such Person of beneficial ownership of an aggregate of no more than 10,000
shares of Common Stock (such number to be appropriately adjusted to reflect
stock dividends, splits, reclassifications and combinations from and after the
date of this Agreement) in any single calendar year; provided, that none of such
shares are owned directly by such Person or nominees for such Person. Promptly
following the adoption of any amendment or supplement pursuant to this Section
26, an appropriate officer of the Company shall deliver to the Rights Agent a
copy of resolutions of the Company adopting such amendment or supplement. Upon
such delivery, the amendment or supplement shall be administered by the Rights
Agent as part of this Agreement in accordance with the terms of this Agreement,
as so amended or supplemented. Prior to the Distribution Date, the interests of
the holders of Rights shall be deemed coincident with the interests of the
holders of Stock.
Section 27.
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 28.
Determinations and Actions by the Board of Directors, etc. For all purposes of
this Agreement, any calculation of the number of shares of Common Stock
outstanding at any particular time, including for purposes of determining the
particular percentage of such outstanding shares of Common Stock of which any
Person is the Beneficial Owner, shall be made in accordance with the last
sentence of Rule 13d-3(1)(i) of the General Rules and Regulations under the
Exchange Act, as in effect on the date of this Agreement. The Board of Directors
of the Company shall have the exclusive power and authority to administer this
Agreement and to exercise all rights and powers specifically granted to the
Board of Directors of 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 or supplement the Agreement). All such actions, calculations,
interpretations and determinations (including, for purposes of clause (y) below,
all omissions with respect to the foregoing) which are done or made by the Board
of Directors of the Company in good faith, shall (x) be final, conclusive and
binding on the Company, the Rights Agent, the holders of the Rights and all
other Persons, and (y) not subject the Board of Directors of the Company to any
liability to the holders of the Rights.
Section 29.
Exchange.
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(a)
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Subject
to paragraph (c) of this Section 29, the Board of Directors of the Company
may, at its option, at any time after any Person becomes an Acquiring
Person, exchange all but not less than all the then outstanding and
exercisable Rights (which shall not include Rights that have become void
pursuant to the provisions of Section 7(e) of this Agreement) for (i) in
the case of Series A Rights, for Class A Preferred Stock at an exchange
ratio of one share of Class A Preferred Stock per Series A Right, and (ii)
in the case of Series B Rights, for Common Stock at an exchange ratio of
one share of Common Stock per Series B Right, in each case as
appropriately adjusted to reflect any stock splits, stock dividends or
similar transactions occurring after the date of this Agreement (such
exchange being hereinafter referred to as the "Exchange" and such exchange
ratios being hereinafter referred to as the "Exchange
Ratios").
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(b)
|
Immediately
upon the action of the Board of Directors of the Company authorizing the
Exchange 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 included in the Exchange shall be to receive that number
of shares of Class A Preferred Stock or Common Stock, as the case may be,
equal to the number of Rights held by such holder multiplied by the
appropriate Exchange Ratio. The Company shall promptly give public notice
of the Exchange; provided, however, that the failure to give notice or any
defect in such notice shall not affect the validity of the Exchange.
Within 10 days after such action of the Board of Directors ordering the
Exchange, the Company shall mail a notice to the Rights Agent and 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 will be
effected.
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(c)
|
In
the event that the number of shares of Class A Preferred Stock or shares
of Common Stock which are authorized by the Company's Restated 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
Exchange, or if the Board of Directors of the Company so elects in its
discretion, the Exchange Ratio as to the Series A Rights shall instead
equal one Class A Preferred Equivalent per Series A Right, and/or the
Exchange Ratio as to the Series B Rights shall instead equal one Common
Stock Equivalent per Series B
Rights.
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(d)
|
The
Company shall not be required to issue fractions of shares of Class A
Preferred Stock or fractions of shares of Common Stock or to distribute
certificates which evidence such fractional shares. In lieu of such
fractional shares, there may be paid to the registered holders of the
Rights Certificates with regard to which such fractional shares would
otherwise be issuable, an amount in cash equal to the same fraction of the
current market value of one share of Class A Preferred Stock or one share
of Common Stock, as the case may be. For the purposes of this paragraph
(d), the current market value of one share of Class A Preferred Stock
shall be the closing price of a share of Class A Preferred Stock (as
determined pursuant to Section 11(d) of this Agreement) for the Trading
Day immediately prior to the Exchange Date, and the current market value
of the share of Common Stock shall be the closing price of a share of
Common Stock (as determined pursuant to Section 11(d) of this Agreement)
for the Trading Day immediately prior to the Exchange
Date.
|
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 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
Stock).
Section 31.
Severability. If any term, provision, covenant, or restriction of this Agreement
is held by a court of competent jurisdiction or other authority to be invalid,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated; provided, however, that
notwithstanding anything in this Agreement to the contrary, if any such term,
provision, covenant or restriction is held by such court or authority to be
invalid, void or unenforceable and the Board of Directors of the Company
determines in its good faith judgment that severing the invalid language from
this Agreement would adversely affect the purpose or effect of this Agreement,
the right of redemption set forth in Section 23 of this Agreement shall be
reinstated and shall not expire until the Close of Business on the tenth
Business Day following the date of such determination by the Board of Directors.
The Company and the Rights Agent may amend this Agreement to modify, revise or
delete such term, provision, covenant or restriction to the extent necessary to
comply with such law as so changed.
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.
References. Unless the context otherwise clearly requires, the terms "of this
Agreement," "hereunder," "herein" and the like refer to this entire Agreement
and not to any particular Section.
Section 35. 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 of this Agreement.
Section 36. Grammatical
Construction. Throughout this Agreement, where such meanings would be
appropriate, (a) any pronouns used herein shall include the corresponding
masculine, feminine or neuter forms (e.g., references to "he" shall also include
"she" and "it" and references to "who" and "whom" shall also include "which"),
(b) the plural form of nouns and pronouns shall include the singular and
vice-versa, (c) reference to a Section means a Section of this Agreement, and
(d) the word "including" means "including, without limitation," whether
expressly stated or not.
IN WITNESS WHEREOF, the parties hereto
have caused this Agreement to be duly executed, and their respective corporate
seals thereto affixed and attested, as of the day and year first above
written.
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By:
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/s/
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Name:
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Title:
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Secretary
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American
Stock Transfer & Trust Company
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as
Rights Agent
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By:
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/s/
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Name:
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▇. ▇▇▇▇▇▇
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Title:
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Vice
President
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