EXHIBIT 1
UNIPHASE CORPORATION
and
AMERICAN STOCK TRANSFER & TRUST COMPANY,
Rights Agent
SECOND AMENDED AND RESTATED
RIGHTS AGREEMENT
Dated as of June 28, 1999
TABLE OF CONTENTS
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SECTION PAGE
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Section 1. Amended and Restated Rights Agreement...................... 1
Section 2. Appointment of Rights Agent................................ 6
Section 3. Issue of Rights Certificates............................... 6
Section 4. Form of Rights Certificates................................ 8
Section 5. Countersignature and Registration.......................... 8
Section 6. Transfer, Split Up, Combination and Exchange of Rights
Certificates; Mutilated, Destroyed, Lost or Stolen
Rights Certificates........................................ 8
Section 7. Exercise of Rights; Purchase Price; Expiration Date of
Rights..................................................... 9
Section 8. Cancellation and Destruction of Rights Certificates........ 11
Section 9. Reservation and Availability of Capital Stock.............. 11
Section 10. Preferred Stock Record Date................................ 13
Section 11. Adjustment of Purchase Price, Number and Kind of Shares
or Number of Rights........................................ 13
Section 12. Certificate of Adjusted Purchase Price or Number of
Shares..................................................... 22
Section 13. Consolidation, Merger or Sale or Transfer of Assets or
Earning Power.............................................. 22
Section 14. Fractional Rights and Fractional Shares.................... 25
Section 15. Rights of Action........................................... 26
Section 16. Agreement of Rights Holders................................ 26
Section 17. Rights Certificate Holder Not Deemed a Stockholder......... 27
Section 18. Concerning the Rights Agent................................ 27
Section 19. Merger or Consolidation or Change of Name of Rights
Agent...................................................... 28
Section 20. Duties of Rights Agent..................................... 28
Section 21. Change of Rights Agent..................................... 31
Section 22. Issuance of New Rights Certificates........................ 32
Section 23. Redemption and Termination................................. 32
Section 24. Notice of Certain Events................................... 33
Section 25. Notices.................................................... 34
Section 26. Supplements and Amendments................................. 34
Section 27. Successors................................................. 35
Section 28. Determinations and Actions by the Board of Directors,
etc........................................................ 35
Section 29. Benefits of this Agreement................................. 35
Section 30. Severability............................................... 36
Section 31. Governing Law.............................................. 36
Section 32. Counterparts............................................... 36
Section 33. Descriptive Headings....................................... 36
Section 34. Exchange................................................... 36
Exhibit A Form of Rights Certificate................................. A
Exhibit B Form of Summary of Rights.................................. B
Exhibit C Certificate of Designation................................. C
SECOND AMENDED AND RESTATED RIGHTS AGREEMENT
SECOND AMENDED AND RESTATED RIGHTS AGREEMENT the ("Agreement"),
dated as of June 28, 1999 (the "Agreement"), between Uniphase
Corporation, a Delaware corporation (the "Company"), and American
Stock Transfer & Trust Company, a New York trust company (the "Rights
Agent").
WHEREAS, effective June 22, 1998 (the "Rights Dividend
Declaration Date"), the Board of Directors of the Company (i)
authorized and declared a dividend distribution of one Right for each
share of common stock, par value $.001 per share, of the Company (the
"Company Common Stock") outstanding at the Close of Business on
July 6, 1998 (the "Record Date"), and (ii) authorized the issuance of
one Right (as such number may hereinafter be adjusted pursuant hereto)
for each share of Company Common Stock issued between the Record Date
(whether originally issued or delivered from the Company's treasury)
and, except as otherwise provided in Section 22, the Distribution Date,
each Right initially representing the right to purchase upon the terms
and subject to the conditions hereinafter set forth one Unit of Series B
Preferred Stock of the Company (the "Rights");
WHEREAS, the Board of Directors of the Company and the Rights
Agent amended the Agreement with respect to the provisions governing
supplements and amendments to the Agreement; and
WHEREAS, the Board of Directors of the Company and the Rights
Agent have determined it is in the best interest of the Company and the
holders of the Company Common Stock to amend the Agreement to, among
other things, give effect to the issuance of exchangeable shares (the
"Exchangeable Shares") in the capital of JDS Uniphase Canada Ltd.
("Exchangeco") pursuant to the terms of an agreement (the "Merger
Agreement") dated as of January 28, 1999 among the Company, JDS FITEL,
Inc. ("JDS") and Exchangeco, as amended and restated as of April 29,
1999 and as further amended from time to time.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
Section 1. Certain Definitions. For purposes of this Agreement,
the following terms have the meanings indicated:
(a) "Acquiring Person" shall mean any Person who or
which, together with all Affiliates or Associates of such Person,
shall be the Beneficial Owner of 15% or more of the shares of
Company Common Stock then outstanding. For purposes of
determining the number of shares of Company Common Stock
outstanding at any time, such number shall be the sum of the
shares of Company Common Stock then outstanding plus the number of
shares of Company Common Stock issuable upon exchange of the
Exchangeable Shares then outstanding; provided that shares of
Company Common Stock held by the Company or any Subsidiary of the
Company and shares of Company Common Stock issuable upon exchange
of Exchangeable Shares held by the Company or any Subsidiary of
the Company shall be deemed not to be outstanding.
Notwithstanding the foregoing: (i) an "Acquiring Person" shall
not include (A) the Company, (B) any Subsidiary of the Company,
(C) any employee benefit plan maintained by the Company or any of
its Subsidiaries, (D) any trustee or fiduciary with respect to
such employee benefit plan acting in such capacity or a trustee or
fiduciary holding shares of Company Common Stock or Exchangeable
Shares for the purpose of funding any such plan or employee
benefits, (E) any Person who has reported or is required to report
Beneficial Ownership of Company Common Stock on Schedule 13G under
the Exchange Act (or any comparable or successor report), but only
so long as (x) such Person is eligible to report such ownership on
Schedule 13(G) under the Exchange Act (or any comparable or
successor report), (y) such Person has not reported and is not
required to report such ownership on Schedule 13(D) under the
Exchange Act (or any comparable or successor report) and such
Person does not hold shares of Company Common Stock on behalf of
any other Person who is required to report Beneficial Ownership of
such shares of Company Common Stock on such Schedule 13(D), and
(z) such Person does not beneficially own 20% or more of the
shares of Company Common Stock then outstanding, (F) any Person if
(1) the Board of Directors of the Company determines in good faith
that such Person who would otherwise be an "Acquiring Person"
became such inadvertently (including, without limitation, because
(x) such Person was unaware that it beneficially owned a
percentage of Company Common Stock that would otherwise cause such
Person to be an "Acquiring Person" or (y) such Person was aware
of the extent of its Beneficial Ownership of Company Common Stock
but had no actual knowledge of the consequences of such Beneficial
Ownership under this Agreement) and without any intention of
changing or influencing control of the Company, (2) as promptly as
practicable such Person divested or divests itself of Beneficial
Ownership of a sufficient number of shares of Company Common Stock
so that such Person would no longer beneficially own 15% or more
of the then outstanding shares of Company Common Stock, and (3)
such Person does not become the Beneficial Owner of any additional
shares of Company Common Stock after such Person becomes aware
that such Person would be an Acquiring Person (but for the
operation of this clause (i)(F)), unless upon becoming the
Beneficial Owner of such additional shares such Person is the
Beneficial Owner of less than 15% of the then outstanding shares
of Company Common Stock, (G) any Person who becomes the Beneficial
Owner of 15% or more of the then outstanding shares of Company
Common Stock as a result of the acquisition of shares of Company
Common Stock directly from the Company, or Exchangeable Shares
directly from Exchangeco, in one or more transactions approved by
the Board of Directors of the Company or the Board of Directors of
Exchangeco, as the case may be, which Persons shall include,
without limitation, Koninklijke Philips Electronics N.V., a
company duly established under the laws of the Netherlands upon
its acquisition of Company Common Stock upon conversion of those
shares of Series A Preferred Stock, par value $.001 per share,
held at the date hereof by such stockholder, (H) The Furukawa
Electric Co., Ltd., a corporation incorporated under the laws of
Japan ("Furukawa"), and its Affiliates upon their acquisition of
Company Common Stock or Exchangeable Shares pursuant to the
arrangement contemplated by the Merger Agreement or the exchange
of Exchangeable Shares acquired pursuant to the arrangement
contemplated by the Merger Agreement, (I) Furukawa and its
Affiliates upon their acquisition of Beneficial Ownership of
Company Common Stock pursuant to their acquisition of shares in or
assets of any Person, provided that the Company Common Stock which
Furukawa or its Affiliates have acquired Beneficial Ownership of
pursuant to such acquisition is sold or otherwise transferred to a
Person who is not Furukawa or any of its Affiliates within 180
days of the date Furukawa or its Affiliates acquire such
Beneficial Ownership, or (J) the holder of the Special Voting
Stock, and (ii) no Person shall be deemed an "Acquiring Person"
as a result of the acquisition of shares of Company Common Stock
by the Company, or Exchangeable Shares by the Company or any
Subsidiary of the Company which, by reducing the number of shares
of Company Common Stock or Exchangeable Shares, as the case may
be, outstanding, increases the proportional number of shares
beneficially owned by such Person; provided, however, that if (A)
a Person would become an Acquiring Person (but for the operation
of this subclause (ii)) as a result of the acquisition of shares
of Company Common Stock by the Company or Exchangeable Shares by
the Company or any Subsidiary of the Company and (B) after such
share acquisition by the Company or the Subsidiary, such Person
becomes the Beneficial Owner of any additional shares of Company
Common Stock or Exchangeable Shares, then such Person shall be
deemed an Acquiring Person unless upon becoming the Beneficial
Owner of such additional shares such Person is the Beneficial
Owner of less than 15% of the then outstanding shares of Company
Common Stock. Each Person identified in subclauses (A), (B), (C)
and (D) of this Section (1)(a) is individually an "Exempt
Person" and collectively "Exempt Persons."
(b) "Affiliate" and "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2 of the
General Rules and Regulations under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), as in effect on the date
hereof.
(c) A Person shall be deemed the "Beneficial Owner" of,
and shall be deemed to have "Beneficial Ownership" of, and to
"beneficially own", any securities:
(i) of which such Person or any of such Person's
Affiliates or Associates is considered to be a "beneficial
owner" under Rule 13d-3 of the General Rules and
Regulations under the Exchange Act as in effect on the date
hereof (the "Exchange Act Regulations"); provided,
however, that a Person shall not be deemed the "Beneficial
Owner" of, to have "Beneficial Ownership" of, or to
"beneficially own", any securities under this subparagraph
(i) as a result of an agreement, arrangement or
understanding to vote such securities if such agreement,
arrangement or understanding (A) arises solely from a
revocable proxy or consent given in response to a public
proxy or consent solicitation made pursuant to, and in
accordance with, the applicable provisions of the Exchange
Act and the Exchange Act Regulations, and (B) is not
reportable by such Person on Schedule 13D under the Exchange
Act (or any comparable or successor report);
(ii) which are beneficially owned, directly or
indirectly, by any other Person (or any Affiliate or
Associate of such other Person) with which such Person (or
any of such Person's Affiliates or Associates) has any
agreement, arrangement or understanding (whether or not in
writing), for the purpose of acquiring, holding, voting
(except pursuant to a revocable proxy or consent as
described in the proviso to subparagraph (i) of this
paragraph (c)) or disposing of such securities; or
(iii) which such Person or any of such Person's
Affiliates or Associates, directly or indirectly, has the
right to acquire (whether such right is exercisable
immediately or only after the passage of time or upon the
satisfaction of conditions) pursuant to any agreement,
arrangement or understanding (whether or not in writing) or
upon the exercise of conversion rights, exchange rights,
rights, warrants or options, or otherwise, including,
without limitation, shares of Company Common Stock
receivable upon the exchange of Exchangeable Shares (as
defined in the Merger Agreement);
provided, however, that under this paragraph (c) a Person shall
not be deemed the "Beneficial Owner" of, to have "Beneficial
Ownership" of, or to "beneficially own", (A) securities
tendered pursuant to a tender or exchange offer made in accordance
with Exchange Act Regulations (or a take-over bid made in
accordance with Canadian Securities Laws) by such Person or any of
such Person's Affiliates or Associates until such tendered
securities are accepted for purchase or exchange, (B) securities
that may be issued upon exercise of Rights or Exchangeable Share
Rights at any time prior to the occurrence of a Triggering Event,
or (C) securities that may be issued upon exercise of Rights or
Exchangeable Share Rights from and after the occurrence of a
Triggering Event, which Rights or Exchangeable Shares 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(c) or Section 22 hereof (the "Original Rights") or pursuant to
Section 11(i) hereof in connection with an adjustment made with
respect to any Original Rights; and further provided, however,
that (x) nothing in this paragraph (c) shall cause a Person
engaged in business as an underwriter of securities to be the
"Beneficial Owner" of, to have "Beneficial Ownership" 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, (y) no decision reached, or action taken, by the
Board of Directors of the Company or Exchangeco or any committee
thereof shall cause any Person (or any Affiliate or Associate of
such Person) who is a member of the Board of Directors of the
Company or Exchangeco or such committee to be deemed, for the
purposes of this Agreement, to be a "Beneficial Owner" of, to
have "Beneficial Ownership" of, or to "beneficially own" any
securities beneficially owned by any other Person (or any
Affiliate or Associate of such Person) who is a member of the
Board of Directors of the Company or any committee thereof solely
by reason of such membership of the Board of Directors or any
committee thereof or participation in the decisions or actions
thereof on the part of either or both of such Persons and (z) no
Person who is an officer, director or employee of an Exempt Person
shall be deemed, solely by reason of such Person's status or
authority as such, to be the "Beneficial Owner" of, to have
"Beneficial Ownership" of or to "beneficially own" any
securities that are "beneficially owned" (as defined in this
paragraph (c)), including, without limitation, in a fiduciary
capacity, by an Exempt Person or by any other such officer,
director or employee of an Exempt Person.
(d) "Business Day" shall mean any day other than a
Saturday, Sunday or a day on which banking institutions in the
city of New York, New York are authorized or obligated by law or
executive order to close.
(e) "Close of Business" on any given date shall mean 5:00
P.M., East Coast time, on such date; provided, however, that if
such date is not a Business Day it shall mean 5:00 P.M., East
Coast time, on the next succeeding Business Day.
(f) "Common Stock" of any Person other than the Company
shall mean the capital stock of such Person with the greatest
voting power, or, if such Person shall have no capital stock, the
equity securities or other equity interest having power to control
or direct the management of such Person.
(g) "Company" means Uniphase Corporation, a Delaware
corporation, and also means a Principal Party to the extent
provided in Section 13(a).
(h) "Company Common Stock" has the meaning set forth in
the Whereas Clause.
(i) "Distribution Date" has the meaning set forth in
Section 3(a).
(j) "Exchangeable Share Rights" means the right to
purchase Exchangeable Shares as provided in the Exchangeco Rights
Agreement.
(k) "Exchangeable Shares" has the meaning set forth in
the Whereas Clause.
(l) "Exchangeco Rights Agreement" means the Rights
Agreement dated June 30, 1999 between Exchangeco and CIBC
Mellon Trust Company, as rights agent, as amended from time to
time.
(m) "Exchangeco" has the meaning set forth in the Whereas Clause.
(n) "Expiration Date" has the meaning set forth in Section 7(a).
(o) "JDS" has the meaning set forth in the Whereas Clause.
(p) "Merger Agreement" has the meaning set forth in the Whereas Clause.
(q) "Person" shall mean any individual, partnership, firm,
corporation, association, trust, unincorporated organization or
other entity, as well as any syndicate or group deemed to be a
person under Section 14(d)(2) of the Exchange Act as in effect on
the date hereof.
(r) "Preferred Stock" shall mean the Series B Preferred
Stock, par value $.001 per share, of the Company having the voting
powers, designation, preferences and relative, participating,
optional or other special rights and qualifications, limitations
and restrictions set forth in the Certificate of Designation
attached as Exhibit C hereto, as amended from time to time.
(s) "Purchase Price" has the meaning set forth in Section 7(b).
(t) "Record Date" has the meaning set forth in the Whereas Clause.
(u) "Right" has the meaning set forth in the Whereas Clause.
(v) "Rights Certificate" has the meaning set forth in Section 3(a).
(w) "Rights Dividend Declaration Date" has the meaning set forth in the
Whereas Clause.
(x) "Section 11(a)(ii) Event" shall mean the event described in Section
11(a)(ii) hereof.
(y) "Section 13 Event" shall mean any event described in clause (x), (y) or
(z) of Section 13(a) hereof.
(z) "Special Voting Stock" means the share of preferred
stock, par value $.001 per share, of the Company designated as
Special Voting Stock, issued to CIBC Mellon Trust Company pursuant
to the voting and exchange trust agreement dated as of
June 30, 1999.
(aa) "Stock Acquisition Date" shall mean the first date
of public announcement (including, without limitation, the filing
of any report, or any amendment to any report, pursuant to Section
13(d) of the Exchange Act (or any comparable or successor report))
by the Company or an Acquiring Person that an Acquiring Person has
become such.
(bb) "Subsidiary" shall mean, with reference to any
Person, any other Person of which an amount of voting securities
or equity interests sufficient to elect at least a majority of the
directors or equivalent governing body of such other Person is
beneficially owned, directly or indirectly, by such Person, or
otherwise controlled by such first-mentioned Person.
(cc) "Summary of Rights" has the meaning set forth in Section 3(b).
(dd) "Triggering Event" shall mean any Section 11(a)(ii) Event or any
Section 13 Event.
(ee) "Unit" has the meaning set forth in Section 7(b).
In addition, the following terms are defined in the Sections indicated below:
Defined Term Section Number
------------------------------------- -------------------------------------
Adjustment Shares 11(a)(ii)
Common Stock Equivalents 11(a)(iii)
Current Value 11(a)(iii)
Depositary Agent 7(c)
Equivalent Preferred Stock 11(b)
Exchange Act 1(b)
Exchange Act Regulations 1(c)
Exchange Ratio 34(a)
Exempt Person 1(a)
Final Expiration Date 7(a)
Furukawa 1(a)
Nasdaq 11(d)(i)
Original Rights 1(c)
Redemption Price 23(a)
Registered Common Stock 13(b)(ii)
Registration Date 9(c)
Registration Statement 9(c)
Section 11(a)(iii) Trigger Date 11(a)(iii)
Securities Act 9(c)
Spread 11(a)(iii)
Substitution Period 11(a)(iii)
Trading Day 11(d)(i)
Section 2. Appointment of Rights Agent. The Company hereby
appoints the Rights Agent to act as agent for the Company in accordance
with the terms and conditions hereof, and the Rights Agent hereby
accepts such appointment. With the consent of the Rights Agent, the
Company may from time to time appoint such co-rights agents as it may
deem necessary or desirable.
Section 3. Issue of Rights Certificates. (a) Until the earlier
of (i) the Close of Business on the tenth Business Day after the Stock
Acquisition Date, and (ii) the Close of Business on the tenth Business
Day (or such later date as may be determined by action of a majority of
the Board of Directors of the Company prior to the occurrence of a
Section 11(a)(ii) Event) after the date that a tender or exchange offer
by any Person (other than an Exempt Person) is first published or sent
or given within the meaning of Rule 14d-4(a) of the Exchange Act
Regulations or any successor rule (or a take-over bid by any Person
(other than an Exempt Person) is first made and delivered under Canadian
securities laws), if upon consummation thereof such Person would be an
Acquiring Person (including, in the case of both clauses (i) and (ii),
any such time which is after the date of this Agreement and prior to the
issuance of the Rights)(the earlier of (i) and (ii) above being the
"Distribution Date"), (x) the Rights will be evidenced (subject to the
provisions of paragraph (b) of this Section 3) by the certificates for
shares of Company Common Stock registered in the names of the holders of
shares of Company Common Stock as of and subsequent to the Record Date
(which certificates for shares of Company Common Stock shall be deemed
also to be certificates for Rights) and not by separate certificates,
and (y) the Rights will be transferable only in connection with the
transfer of the underlying shares of Company Common Stock including a
transfer to the Company; provided, however, that if a tender or exchange
offer (or take-over bid) is terminated prior to the occurrence of a
Distribution Date, then no Distribution Date shall occur as a result of
such tender or exchange offer (or take-over bid). 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
shares of Company Common Stock as of the Close of Business on the
Distribution Date, at the address of such holder shown on the records of
the Company, one or more rights certificates, in substantially the form
of Exhibit A hereto (the "Rights Certificates"), evidencing one Right
for each share of Company Common Stock so held, subject to adjustment as
provided herein.
In the event that an adjustment in the number of Rights per share
of Company Common Stock has been made pursuant to Section 11(p) hereof,
at the time of distribution of the Rights Certificates, the Company may
make the necessary and appropriate rounding adjustments (in accordance
with Section 14(a) hereof) so that Rights Certificates representing only
whole numbers of Rights are distributed and cash is paid in lieu of any
fractional Rights. As of and after the Distribution Date, the Rights
will be evidenced solely by such Rights Certificates.
(b) As promptly as practicable following the Record Date, the
Company will send a copy of a Summary of Rights to Purchase Preferred
Stock, in substantially the form attached hereto as Exhibit B (the
"Summary of Rights"), by first-class, postage prepaid mail, to each
record holder of shares of Company Common Stock as of the Close of
Business on the Record Date, at the address of such holder shown on the
records of the Company. With respect to certificates for Company Common
Stock outstanding as of the Record Date, until the Distribution Date,
the Rights will be evidenced by such certificates registered in the
names of the holders thereof together with the Summary of Rights. Until
the Distribution Date (or, if earlier, the Expiration Date), the
surrender for transfer of any such certificate for Company Common Stock
outstanding as of the Record Date, with or without a copy of the Summary
of Rights, shall also constitute the transfer of the Rights associated
with the Company Common Stock represented thereby.
(c) Rights shall, without any further action, be issued in
respect of all shares of Company Common Stock which are issued
(including any shares of Company Common Stock held in treasury) after
the Record Date but prior to the earlier of the Distribution Date and
the Expiration Date. Certificates, representing such shares of Company
Common Stock, issued after the Record Date shall bear the following
legend:
This certificate also evidences and entitles the holder hereof to
certain Rights as set forth in the Rights Agreement between
Uniphase Corporation (the "Company") and American Stock
Transfer & Trust Company (the "Rights Agent") dated as of
June 22, 1998, as amended from time to time (the "Rights
Agreement"), the terms of which are hereby incorporated herein by
reference and a copy of which is on file at the principal office
of the stock transfer administration office of the Rights Agent.
Under certain circumstances, as set forth in the Rights Agreement,
such Rights will be evidenced by separate certificates and will no
longer be evidenced by this certificate. The Company will mail to
the holder of this certificate a copy of the Rights Agreement, as
in effect on the date of mailing, without charge promptly after
receipt of a written request therefor. UNDER CERTAIN CIRCUMSTANCES
SET FORTH IN THE RIGHTS AGREEMENT, RIGHTS ISSUED TO, OR HELD BY,
ANY PERSON WHO IS, WAS OR BECOMES AN ACQUIRING PERSON OR ANY
AFFILIATE OR ASSOCIATE THEREOF (AS SUCH TERMS ARE DEFINED IN THE
RIGHTS AGREEMENT), WHETHER CURRENTLY HELD BY OR ON BEHALF OF SUCH
PERSON OR BY ANY SUBSEQUENT HOLDER, MAY BECOME NULL AND VOID.
With respect to certificates representing shares of Company Common Stock
that bear the foregoing legend, until the earlier of the Distribution
Date and the Expiration Date, the Rights associated with the shares of
Company Common Stock represented by such certificates shall be evidenced
by such certificates alone and registered holders of the shares of
Company Common Stock shall also be the registered holders of the
associated Rights, and the transfer of any of such certificates shall
also constitute the transfer of the Rights associated with the shares of
Company Common Stock represented by such certificates.
Section 4. Form of Rights Certificates. The Rights Certificates
(and the forms of election to purchase, assignment and certificate to be
printed on the reverse thereof) shall each be substantially in the form
set forth in Exhibit A hereto and may have such marks of identification
or designation and such legends, summaries or endorsements printed
thereon as the Company may deem appropriate and as are not inconsistent
with the provisions of this Agreement, or as may be required to comply
with any applicable law or any rule or regulation thereunder or with any
rule or regulation of any stock exchange or automated quotation system
on which the Rights may from time to time be listed or to conform to
usage. Subject to the provisions of Section 11 and Section 22 hereof,
the Rights Certificates, whenever distributed, shall be dated as of the
Record Date and on their face shall entitle the holders thereof to
purchase such number of Units of Preferred Stock as shall be set forth
therein at the price set forth therein, but the amount and type of
securities, cash or other assets that may be acquired upon the exercise
of each Right and the Purchase Price thereof shall be subject to
adjustment as provided herein.
Section 5. Countersignature and Registration . (a) Rights
Certificates shall be executed on behalf of the Company by its Chairman,
the President or one of its Vice Presidents under its corporate seal
reproduced thereon attested by its Secretary, Treasurer or one of its
Assistant Secretaries. The signature of any of these officers on the
Rights Certificates may be manual or facsimile. Rights Certificates
bearing the manual or facsimile signatures of the individuals who were
at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold
such offices prior to the countersignature of such Rights Certificates
or did not hold such offices at the date of such Rights Certificates. No
Rights Certificate shall be entitled to any benefit under this Agreement
or be valid for any purpose unless there appears on such Rights
Certificate a countersignature duly executed by the Rights Agent by
manual signature of an authorized signatory, and such countersignature
upon any Rights Certificate shall be conclusive evidence, and the only
evidence, that such Rights Certificate has been duly countersigned as
required hereunder.
(b) Following the Distribution Date, the Rights Agent will
keep or cause to be kept, at its office designated 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 name and address of each holder of the Rights
Certificates, the number of Rights evidenced on its face by each Rights
Certificate and the date of each Rights Certificate.
Section 6. Transfer, Split Up, Combination and Exchange of Rights
Certificates; Mutilated, Destroyed, Lost or Stolen Rights Certificates.
(a) Subject to the provisions of Sections 4, 7(e) and 14 hereof, at any
time after the Close of Business on the Distribution Date, and at or
prior to the Close of Business on the Expiration Date, any Rights
Certificate or Certificates may be transferred, split up, combined or
exchanged for another Rights Certificate or Certificates, entitling the
registered holder to purchase a like number of Units of Preferred Stock
(or, following a Triggering Event, other securities, cash or other
assets, as the case may be) as the Rights Certificate or Certificates
surrendered then entitled such holder to purchase. Any registered holder
desiring to transfer, split up, combine or exchange any Rights
Certificate or Certificates shall make such request in writing delivered
to the Rights Agent, and shall surrender the Rights Certificate or
Certificates to be transferred, split up, combined or exchanged at the
office 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
executed the certificate set forth 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) of the Rights represented by such Rights Certificate
or Affiliates or Associates thereof as the Company shall reasonably
request; whereupon the Rights Agent shall, subject to the provisions of
Section 7(e) and Section 14 hereof, countersign and deliver to the
Person entitled thereto a Rights Certificate or Rights Certificates, as
the case may be, as so requested. The Company may require payment of a
sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any transfer, split up, combination or
exchange of Rights Certificates.
(b) Subject to Section 7(e) hereof, if a Rights Certificate
shall be mutilated, lost, stolen or destroyed, upon request by the
registered holder of the Rights represented thereby and upon payment to
the Company and the Rights Agent of all reasonable expenses incident
thereto, there shall be issued, in exchange for and upon cancellation of
the mutilated Rights Certificate, or in substitution for the lost,
stolen or destroyed Rights Certificate, a new Rights Certificate, in
substantially the form of the prior Rights Certificate, of like tenor
and representing the equivalent number of Rights, but, in the case of
loss, theft or destruction, only upon receipt of evidence satisfactory
to the Company and the Rights Agent of such loss, theft or destruction
of such Rights Certificate and, if requested by the Company or the
Rights Agent, indemnity also satisfactory to it.
Section 7. Exercise of Rights; Purchase Price; Expiration Date of
Rights. (a) Prior to the earlier of (i) the Close of Business on June
22, 2008 (the "Final Expiration Date"), (ii) the time at which the
Rights are redeemed as provided in Section 23 hereof or (iii) the time
at which the Rights are exchanged as provided in Section 34 hereof (the
earlier of (i), (ii) and (iii) being the "Expiration Date"), the
registered holder of any Rights Certificate may, subject to the
provisions of Sections 7(e), 9(c) and 11(a)(ii) hereof, exercise the
Rights evidenced thereby, in whole or in part, at any time after the
Distribution Date upon surrender of the Rights Certificate, with the
form of election to purchase and the certificate on the reverse side
thereof duly executed, to the Rights Agent at the office of the Rights
Agent designated for such purpose, together with payment of the
aggregate Purchase Price (as hereinafter defined) for the number of
Units of Preferred Stock (or, following a Triggering Event, other
securities, cash or other assets, as the case may be) for which such
surrendered Rights are then exercisable.
(b) The purchase price for each one one-thousandth of a share
(each such one one-thousandth of a share being a "Unit") of Preferred
Stock upon exercise of Rights shall be $270, subject to adjustment from
time to time as provided in Sections 11 and 13(a) hereof (such purchase
price, as so adjusted, being the "Purchase Price"), and shall be
payable in accordance with paragraph (c) below.
(c) As promptly as practicable following the occurrence of the
Distribution Date, the Company shall deposit with the Rights Agent or
other corporation in good standing organized under the laws of the
United States or any State of the United States, 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
(such institution being the "Depositary Agent"), certificates
representing the shares of Preferred Stock that may be acquired upon
exercise of the Rights and shall cause such Depositary Agent to enter
into an agreement pursuant to which the Depositary Agent shall issue
receipts representing interests in the shares of Preferred Stock so
deposited. Upon receipt of a Rights Certificate representing exercisable
Rights, with the form of election to purchase and the certificate duly
executed, accompanied by payment, with respect to each Right so
exercised, of the Purchase Price for the Units of Preferred Stock (or,
following a Triggering Event, other securities, cash or other assets, as
the case may be) to be purchased thereby as set forth below and an
amount equal to any applicable transfer tax or evidence satisfactory to
the Company of payment of such tax, the Rights Agent shall, subject to
Section 20(k) hereof, thereupon promptly (i) requisition from the
Depositary Agent depositary receipts representing such number of Units
of Preferred Stock as are to be purchased and the Company will direct
the Depositary Agent to comply with such request, (ii) requisition from
the Company the amount of cash, if any, to be paid in lieu of fractional
shares in accordance with Section 14 hereof, (iii) after receipt of such
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. In the event that the
Company is obligated to issue Company Common Stock, other securities of
the Company, pay cash and/or distribute other property pursuant to
Section 11(a) hereof, the Company will make all arrangements necessary
so that such Company Common Stock, other securities, cash and/or other
property are available for distribution by the Rights Agent, if and when
appropriate. The payment of the Purchase Price (as such amount may be
reduced pursuant to Section 11(a)(iii) hereof) may be made in cash or by
certified or bank check or money order payable to the order of the
Company.
(d) In case the registered holder of any Rights Certificate
shall exercise less than all the Rights evidenced thereby, a new Rights
Certificate evidencing 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 hereof.
(e) Notwithstanding anything in this Agreement to the
contrary, from and after the first occurrence of a Section 11(a)(ii)
Event, any Rights beneficially owned by (i) an Acquiring Person or an
Associate or Affiliate of an Acquiring Person, (ii) a transferee of an
Acquiring Person (or of any such Associate or Affiliate) which becomes a
transferee after the Acquiring Person becomes such, or (iii) a
transferee of an Acquiring Person (or of any such Associate or
Affiliate) which becomes a transferee prior to or concurrently with the
Acquiring Person becoming such and which receives such Rights pursuant
to either (A) a transfer (whether or not for consideration) from the
Acquiring Person (or any such Associate or Affiliate) to holders of
equity interests in such Acquiring Person (or any such Associate or
Affiliate) or to any Person with whom the Acquiring Person (or such
Associate or Affiliate) has any continuing agreement, arrangement or
understanding regarding the transferred Rights, shares of Company Common
Stock or the Company or (B) a transfer which the Board of Directors has
determined to be part of a plan, arrangement or understanding which has
as a primary purpose or effect the avoidance of this Section 7(e), shall
be 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) are complied with, but shall have no liability to any
holder of Rights or any other Person as a result of its failure to make
any determination under this Section 7(e) with respect to an Acquiring
Person or its Affiliates, Associates or transferees.
(f) Notwithstanding anything in this Agreement or any Rights
Certificate 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 by such registered
holder unless such registered holder shall have (i) completed and
executed the certificate following the form of election to purchase set
forth on the reverse side of the Rights Certificate surrendered for such
exercise, and (ii) provided such additional evidence of the identity of
the Beneficial Owner (or former Beneficial Owner) of the Rights
represented by such Rights Certificate or Affiliates or Associates
thereof as the Company shall reasonably request.
Section 8. Cancellation and Destruction of Rights Certificates.
All Rights Certificates surrendered for the purpose of exercise,
transfer, split up, combination or exchange shall, if surrendered to the
Company or any of its agents, be delivered to the Rights Agent for
cancellation or in 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 this Agreement.
The Company shall deliver to the Rights Agent for cancellation and
retirement, and the Rights Agent shall so cancel and retire, any Rights
Certificates acquired by the Company otherwise than upon the exercise
thereof. The Rights Agent shall deliver all cancelled Rights
Certificates to the Company, or shall, at the written request of the
Company, destroy such cancelled Rights Certificates, and in such case
shall deliver a certificate of destruction thereof to the Company.
Section 9. Reservation and Availability of Capital Stock. (a)
The Company shall at all times prior to the Expiration Date cause to be
reserved and kept available, out of its authorized and unissued shares
of preferred stock, the number of shares of Preferred Stock that, as
provided in this Agreement, will be sufficient to permit the exercise in
full of all outstanding Rights. Upon the occurrence of any events
resulting in an increase in the aggregate number of shares of Preferred
Stock (or other equity securities of the Company) issuable upon exercise
of all outstanding Rights above the number then reserved, the Company
shall make appropriate increases in the number of shares so reserved to
the extent practicable.
(b) If the shares of Preferred Stock to be issued and
delivered upon the exercise of the Rights may be listed on any national
securities exchange or automated quotation system, the Company shall
during the period from the Distribution Date through the Expiration Date
use its best efforts to cause all securities reserved for such issuance
to be listed on such exchange or system upon official notice of issuance
upon such exercise.
(c) The Company shall use its best efforts (i) as soon as
practicable following the occurrence of a Section 11(a)(ii) Event and a
determination by the Company in accordance with Section 11(a)(iii)
hereof of the consideration to be delivered by the Company upon exercise
of the Rights or, if so required by law, as soon as practicable
following the Distribution Date (such date being the "Registration
Date"), to file a registration statement on an appropriate form under
the Securities Act of 1933, as amended (the "Securities Act"), with
respect to the securities that may be acquired upon exercise of the
Rights (the "Registration Statement"), (ii) to cause the Registration
Statement to become effective as soon as practicable after such filing,
(iii) to cause the Registration Statement to continue to be effective
(and to include a prospectus complying with the requirements of the
Securities Act) until the earlier of (A) the date as of which the Rights
are no longer exercisable for the securities covered by the Registration
Statement, and (B) the Expiration Date and (iv) to take as soon as
practicable following the Registration Date such action as may be
required to ensure that any acquisition of securities upon exercise of
the Rights complies with any applicable state securities or "blue sky"
laws. The Company may temporarily suspend, for a period of time not to
exceed one hundred twenty (120) days after the date set forth in clause
(i) of the first sentence of this Section 9(c), the exercisability of
the Rights in order to prepare and file such registration statement and
permit it to become effective. Upon any such suspension, the Company
shall issue a public announcement stating that the exercisability of the
Rights has been temporarily suspended, as well as a public announcement
at such time as the suspension is no longer in effect. In addition, if
the Company shall determine that a registration statement is required
following the Distribution Date, the Company may temporarily suspend the
exercisability of the Rights until such time as a registration statement
has been declared effective. Notwithstanding any provision of this
Agreement to the contrary, the Rights shall not be exercisable in any
jurisdiction if the requisite qualification in such jurisdiction shall
not have been obtained, the exercise thereof shall not be permitted
under applicable law or a registration statement shall not have been
declared effective.
(d) The Company shall take such action as may be necessary to
ensure that all shares of Preferred Stock (and, following the occurrence
of a Triggering Event, any other securities that may be delivered upon
exercise of Rights) shall be, at the time of delivery of the
certificates or depositary receipts for such securities (subject to
payment of the Purchase Price), duly and validly authorized and issued
and fully paid and non-assessable.
(e) The Company shall pay any documentary, stamp or transfer
tax imposed in connection with the issuance or delivery of the Rights
Certificates or upon the exercise of Rights; provided, however, the
Company shall not be required to pay any such tax imposed in connection
with the issuance or delivery of Units of Preferred Stock, or any
certificates or depositary receipts for such Units of Preferred Stock
(or, following the occurrence of a Triggering Event, any other
securities, cash or assets, as the case may be) to any Person other than
the registered holder of the Rights Certificates evidencing the Rights
surrendered for exercise. The Company shall not be required to issue or
deliver any certificates or depositary receipts for Units of Preferred
Stock (or, following the occurrence of a Triggering Event, any other
securities, cash or assets, as the case may be) to, or in a name other
than that of, the registered holder upon the exercise of any Rights
until any such tax shall have been paid (any such tax being payable by
the holder of such Rights Certificate at the time of surrender) or until
it has been established to the Company's satisfaction that no such tax
is due.
Section 10. Preferred Stock Record Date. Each Person in whose
name any certificate or depositary receipt for Units of Preferred Stock
(or, following the occurrence of a Triggering Event, other securities)
is issued upon the exercise of Rights shall for all purposes be deemed
to have become the holder of record of the Units of Preferred Stock (or,
following the occurrence of a Triggering Event, other securities)
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 any applicable
transfer taxes) was made; provided, however, that if the date of such
surrender and payment is a date upon which the Preferred Stock (or,
following the occurrence of a Triggering Event, other securities)
transfer books of the Company are closed, such Person shall be deemed to
have become the record holder of such securities on, and such
certificate shall be dated, the next succeeding Business Day on which
the Preferred Stock (or, following the occurrence of a Triggering Event,
other securities) transfer books of the Company are open and, further
provided, however, that if delivery of Units of Preferred Stock (or,
following the occurrence of a Triggering Event, other securities) is
delayed pursuant to Section 9(c) or 11(a)(ii) hereof, such Persons shall
be deemed to have become the record holders of such Units of Preferred
Stock (or, following the occurrence of a Triggering Event, other
securities) only when such Units (or other securities) first become
deliverable. 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 securities 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
securities purchasable upon exercise of each Right and the number of
Rights outstanding are subject to adjustment from time to time as
provided in this Section 11.
(a)(i) In the event the Company shall at any time after
the date of this Agreement (A) declare a dividend on the Preferred
Stock payable in shares of Preferred Stock, (B) subdivide the
outstanding Preferred Stock, (C) combine the outstanding Preferred
Stock into a smaller number of shares, or (D) issue any shares of
its capital stock in a reclassification of the Preferred Stock
(including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing or
surviving corporation), except as otherwise provided in this
Section 11(a), the Purchase Price in effect at the time of the
record date for such dividend or of the effective date of such
subdivision, combination or reclassification, and the number and
kind of shares of Preferred Stock or capital stock, as the case
may be, issuable on such date upon exercise of the Rights, shall
be proportionately adjusted so that the holder of any Right
exercised after such time shall be entitled to receive, upon
payment of the Purchase Price then in effect, the aggregate number
and kind of shares of Preferred Stock or capital stock, as the
case may be, which, if such Right had been exercised immediately
prior to such date, such holder would have owned upon such
exercise and been entitled to receive by virtue of such dividend,
subdivision, combination or reclassification; provided, however,
that in no event shall the consideration to be paid upon the
exercise of one Right be less than the aggregate par value of the
shares of capital stock of the Company issuable upon the exercise
of one Right. If an event occurs which would require an adjustment
under both this Section 11(a)(i) and Section 11(a)(ii) hereof, the
adjustment provided for in this Section 11(a)(i) shall be in
addition to, and shall be made prior to, any adjustment required
pursuant to Section 11(a)(ii) hereof.
(ii) Subject to Section 34 hereof, in the event any
Person shall become an Acquiring Person (the first occurrence of
such event being a "Section 11(a)(ii) Event"), then (A) the
Purchase Price shall be adjusted to be the Purchase Price in
effect immediately prior to the Section 11(a)(ii) Event multiplied
by the number of Units of Preferred Stock for which a Right was
exercisable immediately prior to such Section 11(a)(ii) Event,
whether or not such Right was then exercisable, and (B) each
holder of a Right, except as otherwise provided in this Section
11(a)(ii) and Section 7(e) and Section 11(a)(iii) hereof, shall
thereafter have the right to receive, upon exercise thereof at a
price equal to the Purchase Price (as so adjusted), in accordance
with the terms of this Agreement, such number of Units of
Preferred Stock as shall equal the result obtained by dividing the
Purchase Price (as so adjusted) by 50% of the current per share
market price of the Preferred Stock (determined pursuant to
Section 11(d) hereof) on the date of such Section 11(a)(ii) Event
(such Units of Preferred Stock being the "Adjustment Shares");
provided, however, that the Purchase Price (as so adjusted) and
the number of Units of Preferred Stock so receivable upon exercise
of a Right shall, following the Section 11(a)(ii) Event, be
subject to further adjustment as appropriate in accordance with
Section 11 hereof. Notwithstanding the foregoing, the Rights
shall not be exercisable pursuant to this Section 11(a)(ii) until
the time period during which the Rights may be redeemed pursuant
to Section 23 hereof shall have expired.
(iii) The Company, by the vote of a majority of the Board
of Directors, may at its option substitute for a Unit of Preferred
Stock issuable upon the exercise of Rights in accordance with the
foregoing subparagraph (ii), shares of Company Common Stock or
fractions thereof having a current market price (as determined by
Section 11(d) hereof) equal to the current market price of a Unit
of Preferred Stock on the date of the Section 11(a)(ii) Event. In
the event that the number of shares of 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 Rights is not sufficient to permit the
exercise in full of the Rights in accordance with the foregoing
subparagraph (ii) of this Section 11(a), the Company, by the vote
of a majority of the Board of Directors shall, to the extent
permitted by applicable law and any material agreements then in
effect to which the Company is a party: (A) determine the excess
(such excess being the "Spread") of (1) the aggregate value of
the Adjustment Shares issuable upon the exercise of a Right (the
"Current Value") over (2) the Purchase Price (as adjusted in
accordance with the foregoing subparagraph (ii)), and (B) with
respect to each Right (other than Rights which have become void
pursuant to Section 7(e)), make adequate provision to substitute,
in whole or in part, for such Adjustment Shares, upon exercise of
a Right and payment of the Purchase Price (as adjusted in
accordance with the foregoing subparagraph (ii)), (1) cash, (2) a
reduction in the Purchase Price, (3) shares of Company Common
Stock or other equity securities of the Company (including,
without limitation, shares, or units of shares, of preferred stock
(such other shares being "common stock equivalents")), (4) debt
securities of the Company, (5) other assets, or (6) any
combination of the foregoing, having an aggregate value which,
when added to the value of the Units of Preferred Stock actually
issued upon exercise of such Right, shall have an aggregate value
equal to the Current Value (less the amount of any reduction in
such Purchase Price), where such aggregate value has been
determined by a majority of the Board of Directors, after
receiving advice from a nationally recognized investment banking
firm; provided, however, that if the Company shall not have made
adequate provision to deliver value pursuant to clause (B) above
within thirty (30) days following the 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)(iii) Trigger Date"), then, subject to Section 34
hereof, the Company shall be obligated (to the extent permitted by
applicable law and any material agreements then in effect to which
the Company is a party) to deliver, upon the surrender for
exercise of a Right and without requiring payment of the Purchase
Price, Units of Preferred Stock (to the extent available) and/or
shares (or fractions of shares, at the discretion of the Board) of
Company Common Stock (to the extent available), and then, if
necessary, cash or a combination thereof, which Units of Preferred
Stock, shares (or fractions of shares) of Company Common Stock
and/or cash shall have an aggregate value equal to the Spread. If,
upon the occurrence of the Section 11(a)(ii) Event, a majority of
the Board of Directors elects to issue shares of Company Common
Stock upon exercise of the Rights and determines in good faith
that it is likely that sufficient additional shares of Company
Common Stock could be authorized for issuance upon exercise in
full of the Rights, then, if a majority of the Board of Directors
so elects, 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)(iii) Trigger Date, in order that the
Company may seek stockholder approval for the authorization of
such additional shares (such thirty (30) day period, as it may be
extended, is herein called the "Substitution Period"). To the
extent that the Company determines that some action need be taken
pursuant to the second and/or third sentence of this Section
11(a)(iii), the Company (x) shall provide, subject to Section 7(e)
hereof and the last sentence of this subparagraph (iii), that such
action shall apply uniformly to all outstanding Rights and (y) may
suspend the exercisability of the Rights until the expiration of
the Substitution Period in order to seek any authorization of
additional shares and/or to decide the appropriate form of
distribution to be made pursuant to such second sentence and to
determine the value thereof. For purposes of this Section
11(a)(iii), the value of a Unit of Preferred Stock or share of
Company Common Stock shall be the current market price (as
determined pursuant to Section 11(d) hereof) per Unit of Preferred
Stock or share of Company Common Stock, as the case may be, on the
Section 11(a)(iii) Trigger Date and the value of any common stock
equivalent shall be deemed to have the same value as a share of
Company Common Stock on such date. A majority of the Board of
Directors of the Company may, but shall not be required to,
establish procedures to allocate the right to receive Units of
Preferred Stock or shares of Company Common Stock, as the case may
be, upon the exercise of the Rights among holders of Rights
pursuant to this Section 11(a)(iii).
(b) In case the Company shall fix a record date for the
issuance of rights, options or warrants to all holders of
Preferred Stock entitling them to subscribe for or purchase (for a
period expiring within forty-five calendar days after such record
date) shares of Preferred Stock (or shares having substantially
the same rights, privileges and preferences as shares of Preferred
Stock ("Equivalent Preferred Stock")) or securities convertible
into Preferred Stock or Equivalent Preferred Stock at a price per
share of Preferred Stock or per share of Equivalent Preferred
Stock (or having a conversion price per share, if a security
convertible into Preferred Stock or Equivalent Preferred Stock)
less than the current market price (as determined pursuant to
Section l1(d) hereof) per share of Preferred Stock on such record
date, the Purchase Price to be in effect after such record date
shall be determined by multiplying the Purchase Price in effect
immediately prior to such record date by a fraction, the numerator
of which shall be the sum of the number of shares of Preferred
Stock outstanding on such record date plus the number of shares of
Preferred Stock which the aggregate offering price of the total
number of shares of Preferred Stock and/or Equivalent Preferred
Stock so to be offered (and/or the aggregate initial conversion
price of the convertible securities so to be offered) would
purchase at such current market price, and the denominator of
which shall be the number of shares of Preferred Stock outstanding
on such record date plus the number of additional shares of
Preferred Stock and/or Equivalent Preferred Stock to be offered
for subscription or purchase (or into which the convertible
securities so to be offered are initially convertible) provided,
however, that in no event shall the consideration to be paid upon
the exercise of one Right be less than the aggregate par value of
the shares of capital stock of the Company issuable upon exercise
of one Right. In case such subscription price may be paid by
delivery of consideration part or all of which may be in a form
other than cash, the value of such consideration shall be as
determined in good faith by a majority of the Board of Directors,
whose determination shall be described in a statement filed with
the Rights Agent and shall be binding on the Rights Agent and the
holders of the Rights. Shares of Preferred Stock owned by or held
for the account of the Company shall not be deemed outstanding for
the purpose of any such computation. Such adjustment shall be made
successively whenever such a record date is fixed, and in the
event that such rights, options or warrants are not so issued, the
Purchase Price shall be adjusted to be the Purchase Price which
would then be in effect if such record date had not been fixed.
(c) In case the Company shall fix a record date for a
distribution to all holders of shares of Preferred Stock
(including any such distribution made in connection with a
consolidation or merger in which the Company is the continuing or
surviving corporation) of evidences of indebtedness, cash (other
than a regular quarterly cash dividend paid out of funds legally
available therefor), assets (other than a dividend payable in
shares of Preferred Stock, but including any dividend payable in
stock other than Preferred Stock) or subscription rights, options
or warrants (excluding those referred to in Section 11(b) hereof),
the Purchase Price to be in effect after such record date shall be
determined by multiplying the Purchase Price in effect immediately
prior to such record date by a fraction, the numerator of which
shall be the current market price (as determined pursuant to
Section 11(d) hereof) per share of Preferred Stock on such record
date less the fair market value (as determined in good faith by a
majority of the Board of Directors, whose determination shall be
described in a statement filed with the Rights Agent and shall be
binding on the Rights Agent and the holder of the Rights) of the
cash, assets or evidences of indebtedness so to be distributed or
of such subscription rights, options or warrants distributable in
respect of a share of Preferred Stock and the denominator of which
shall be such current market price (as determined pursuant to
Section 11(d) hereof) per share of Preferred Stock provided,
however, that in no event shall the consideration to be paid upon
the exercise of one Right be less than the aggregate par value of
the shares of capital stock of the Company to be issued upon
exercise of one Right. Such adjustments shall be made
successively whenever such a record date is fixed, and in the
event that such distribution is not so made, the Purchase Price
shall be adjusted to be the Purchase Price which would have been
in effect if such record date had not been fixed.
(d)(i) For the purpose of any computation hereunder, the
"current market price" per share of Company Common Stock or
Common Stock on any date shall be deemed to be the average of the
daily closing prices per share of such shares for the ten
consecutive Trading Days (as such term is hereinafter defined)
immediately prior to such date; provided, however, if prior to the
expiration of such requisite ten Trading Day period the issuer
announces either (A) a dividend or distribution on such shares
payable in such shares or securities convertible into such shares
(other than the Rights), or (B) any subdivision, combination or
reclassification of such shares, then, following the ex-dividend
date for such dividend or the record date for such subdivision,
combination or reclassification, as the case may be, the "current
market price" shall be properly adjusted to take into account
such event. The closing price for each day shall be, if the shares
are listed and admitted to trading on a national securities
exchange, as reported in the principal consolidated transaction
reporting system with respect to securities listed on the
principal national securities exchange on which such shares are
listed or admitted to trading or, if such shares are not listed or
admitted to trading on any national securities exchange, the last
quoted price or, if not so quoted, the average of the high bid and
low asked prices in the over-the-counter market, as reported by
the Nasdaq Stock Market ("Nasdaq") or such other system then in
use, or, if on any such date such shares are not quoted by any
such organization, the average of the closing bid and asked prices
as furnished by a professional market maker making a market in
such shares selected by a majority of the Board of Directors. If
on any such date no market maker is making a market in such
shares, the fair value of such shares on such date as determined
in good faith by a majority of the Board of Directors shall be
used. If such shares are 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 a majority of the
Board of Directors, whose determination shall be described in a
statement filed with the Rights Agent and shall be conclusive for
all purposes. The term "Trading Day" shall mean, if such shares
are listed or admitted to trading on any national securities
exchange, a day on which the principal national securities
exchange on which such shares are listed or admitted to trading is
open for the transaction of business or, if such shares are not so
listed or admitted, a Business Day.
(ii) For the purpose of any computation hereunder, the
"current market price" per share of Preferred Stock shall be
determined in the same manner as set forth above for Company
Common Stock in subparagraph (i) of this Section 11(d) (other than
the fourth sentence thereof). If the current market price per
share of Preferred Stock cannot be determined in the manner
provided above or if the Preferred Stock is not publicly held or
listed or traded in a manner described in subparagraph (i) of this
Section 11(d), the "current market price" per share of Preferred
Stock shall be conclusively deemed to be an amount equal to 1,000
(as such amount may be appropriately adjusted for such events as
stock splits, stock dividends and recapitalizations with respect
to Company Common Stock occurring after the date of this
Agreement) multiplied by the current market price per share of
Company Common Stock. If neither Company Common Stock nor
Preferred Stock is publicly held or so listed or traded, "current
market price" per share of the Preferred Stock shall mean the
fair value per share as determined in good faith by a majority of
the Board of Directors whose determination shall be described in a
statement filed with the Rights Agent and shall be binding on the
Rights Agent and the holders of the Rights. For all purposes of
this Agreement, the "current market price" of a Unit of
Preferred Stock shall be equal to the "current market price" of
one share of Preferred Stock divided by 1,000.
(e) Anything herein to the contrary notwithstanding, no
adjustment in the Purchase Price shall be required unless such
adjustment would require an increase or decrease of at least 1% in
the Purchase Price; provided, however, that any adjustments which
by reason of this Section 11(e) are not required to be made shall
be carried forward and taken into account in any subsequent
adjustment. All calculations under this Section 11 shall be made
to the nearest cent or to the nearest one hundred-thousandth of a
share of Preferred Stock, Company Common Stock or Common Stock or
other share or security, as the case may be. Notwithstanding the
first sentence of this Section 11(e), any adjustment required by
this Section 11 shall be made no later than the earlier of (i)
three years from the date of the transaction which mandates such
adjustment and (ii) the Expiration Date.
(f) If as a result of an adjustment made pursuant to
Section 11(a) or 13(a) hereof, the holder of any Right thereafter
exercised shall become entitled to receive any shares of capital
stock other than Preferred Stock, thereafter the number of such
other shares so receivable upon exercise of any Right and the
Purchase Price thereof shall be subject to adjustment from time to
time in a manner and on terms as nearly equivalent as practicable
to the provisions with respect to the Preferred Stock contained in
Sections 11(a), (b), (c), (e), (g), (h), (i), (k), (l) and (m),
and the provisions of Sections 7, 9, 10, 13 and 14 hereof with
respect to the Preferred Stock shall apply on like terms to any
such other shares.
(g) All Rights originally issued by the Company subsequent
to any adjustment made to the Purchase Price hereunder shall
evidence the right to purchase, at the adjusted Purchase Price,
the number of Units of Preferred Stock (or other securities or
amount of cash or combination thereof) that may be acquired from
time to time hereunder upon exercise of the Rights, all subject to
further adjustment as provided herein.
(h) Unless the Company shall have exercised its election as
provided in Section 11(i), upon each adjustment of the Purchase
Price as a result of the calculations made in Sections 11(b) and
(c), each Right outstanding immediately prior to the making of
such adjustment shall thereafter evidence the right to purchase,
at the adjusted Purchase Price, that number of Units of Preferred
Stock (calculated to the nearest one hundred-thousandth of a Unit)
obtained by (i) multiplying (x) the number of Units of Preferred
Stock covered by 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.
(i) The Company may elect on or after the date of any
adjustment of the Purchase Price to adjust the number of Rights,
in lieu of any adjustment in the number of Units of Preferred
Stock that may be acquired upon the exercise of a Right. Each of
the Rights outstanding after the adjustment in the number of
Rights shall be exercisable for the number of Units of Preferred
Stock for which a Right was exercisable immediately prior to such
adjustment. Each Right held of record prior to such adjustment of
the number of Rights shall become that number of Rights
(calculated to the nearest one hundredth) obtained by dividing the
Purchase Price in effect immediately prior to adjustment of the
Purchase Price by the Purchase Price in effect immediately after
adjustment of the Purchase Price. The Company shall make a public
announcement of its election to adjust the number of Rights,
indicating the record date for the adjustment, and, if known at
the time, the amount of the adjustment to be made. This record
date may be the date on which the Purchase Price is adjusted or
any day thereafter, but, if the Rights Certificates have been
issued, shall be at least ten days later than the date of such
public announcement. If Rights Certificates have been issued, upon
each adjustment of the number of Rights pursuant to this Section
11(i), the Company shall, as promptly as practicable, cause to be
distributed to holders of record of Rights Certificates on such
record date Rights Certificates evidencing, subject to Section 14
hereof, the additional Rights to which such holders shall be
entitled as a result of such adjustment, or, at the option of the
Company, shall cause to be distributed to such holders of record
in substitution and replacement for the Rights Certificates held
by such holders prior to the date of adjustment, and upon
surrender thereof, if required by the Company, new Rights
Certificates evidencing all the Rights to which such holders shall
be entitled after such adjustment. Rights Certificates to be so
distributed shall be issued, executed and countersigned in the
manner provided for herein (and may bear, at the option of the
Company, the adjusted Purchase Price) and shall be registered in
the names of the holders of record of Rights Certificates on the
record date specified in the public announcement.
(j) Irrespective of any adjustment or change in the
Purchase Price or the number of Units of Preferred Stock issuable
upon the exercise of the Rights, the Rights Certificates
theretofore and thereafter issued may continue to express the
Purchase Price per Unit and the number of Units of Preferred Stock
which were expressed in the initial Rights Certificates issued
hereunder.
(k) Before taking any action that would cause an adjustment
reducing the Purchase Price below the then par value of the Units
of Preferred Stock or other shares of capital stock issuable upon
exercise of the Rights, the Company shall take any corporate
action which may, in the opinion of its counsel, be necessary in
order that the Company may validly and legally issue such fully
paid and non-assessable Units of Preferred Stock or other such
shares at such adjusted Purchase Price.
(1) In any case in which this Section 11 shall require that
an adjustment in the Purchase Price be made effective as of a
record date for a specified event, the Company may elect to defer
until the occurrence of such event the issuance to the holder of
any Right exercised after such record date of that number of Units
of Preferred Stock and shares of other capital stock or securities
of the Company, if any, issuable upon such exercise over and above
the number of Units of Preferred Stock and shares of other capital
stock or securities of the Company, if any, issuable upon such
exercise on the basis of the Purchase Price in effect prior to
such adjustment; provided, however, that the Company shall deliver
to such holder a due ▇▇▇▇ or other appropriate instrument
evidencing such holder's right to receive such additional shares
(fractional or otherwise) or securities upon the occurrence of the
event requiring such adjustment.
(m) Anything in this Section 11 to the contrary
notwithstanding, the Company shall be entitled to make such
reductions in the Purchase Price, in addition to those adjustments
expressly required by this Section 11, as and to the extent that
in their good faith judgment a majority of the Board of Directors
shall determine to be advisable in order that any (i)
consolidation or subdivision of the Preferred Stock, (ii) issuance
wholly for cash of any shares of Preferred Stock at less than the
current market price, (iii) issuance wholly for cash of shares of
Preferred Stock or securities which by their terms are convertible
into or exchangeable for shares of Preferred Stock, (iv) stock
dividends or (v) issuance of rights, options or warrants referred
to in this Section 11, hereafter made by the Company to holders of
its Preferred Stock, shall not be taxable to such holders or shall
reduce the taxes payable by such holders.
(n) The Company shall not, at any time after the
Distribution Date, (i) consolidate with any other Person, (ii)
merge with or into any other Person, or (iii) sell or transfer (or
permit any Subsidiary to sell or transfer), in one transaction, or
a series of transactions, assets or earning power aggregating more
than 50% of the assets or earning power of the Company and its
Subsidiaries (taken as a whole) to any other Person or Persons
(other than the Company and/or any of its wholly owned
Subsidiaries in one or more transactions each of which complies
with Section 11(o) hereof), if (x) at the time of or immediately
after such consolidation, merger or sale there are any rights,
warrants or other instruments or securities outstanding or
agreements in effect which would substantially diminish or
otherwise eliminate the benefits intended to be afforded by the
Rights or (y) prior to, simultaneously with or immediately after
such consolidation, merger or sale, the Person which constitutes,
or would constitute, the "Principal Party" for purposes of
Section 13(a) hereof shall have distributed or otherwise
transferred to its shareholders or other persons holding an equity
interest in such Person Rights previously owned by such Person or
any of its Affiliates and Associates; provided, however, this
Section 11(n) shall not affect the ability of any wholly owned
Subsidiary of the Company to consolidate with, merge with or into,
or sell or transfer assets or earning power to, any other wholly
owned Subsidiary of the Company.
(o) After the Distribution Date, the Company shall not,
except as permitted by Section 23, Section 26 or Section 34
hereof, take (or permit any Subsidiary to take) any action if at
the time such action is taken it is reasonably foreseeable that
such action will diminish substantially or otherwise eliminate the
benefits intended to be afforded by the Rights.
(p) Anything in this Agreement to the contrary
notwithstanding, in the event that the Company shall at any time
after the Rights Dividend Declaration Date and prior to the
Distribution Date (i) declare a dividend on the outstanding shares
of Company Common Stock payable in shares of Company Common Stock,
(ii) subdivide the outstanding shares of Company Common Stock,
(iii) combine the outstanding shares of Company Common Stock into
a smaller number of shares, or (iv) issue any shares of its
capital stock in a reclassification of Company Common Stock
(including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing or
surviving corporation), the number of Rights associated with each
share of Company Common Stock then outstanding, or issued or
delivered thereafter prior to the Distribution Date or in
accordance with Section 22 hereof, shall be proportionately
adjusted so that the number of Rights thereafter associated with
each share of Company Common Stock following any such event shall
equal the result obtained by multiplying the number of Rights
associated with each share of Company Common Stock immediately
prior to such event by a fraction the numerator of which shall be
the total number of shares of Company Common Stock outstanding
immediately prior to the occurrence of the event and the
denominator of which shall be the total number of shares of
Company Common Stock outstanding immediately following the
occurrence of such event.
Section 12. Certificate of Adjusted Purchase Price or Number of
Shares. Whenever an adjustment is made as provided in Section 11 or
Section 13 hereof, the Company shall (a) promptly prepare a certificate
setting forth such adjustment and a brief statement of the facts
accounting for such adjustment, (b) promptly file with the Rights Agent,
and with each transfer agent for the Preferred Stock and the Company
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 Company Common Stock) in accordance with Section 25 hereof. The
Rights Agent shall be fully protected in relying on any such certificate
and on any adjustment therein contained and shall not be deemed to have
knowledge of any such adjustment unless and until it shall have received
such certificate.
Section 13. Consolidation, Merger or Sale or Transfer of Assets
or Earning Power. (a) In the event that, following the first occurrence
of a Section 11(a)(ii) Event, directly or indirectly, either (x) the
Company shall consolidate with, or merge with and into, any other
Person, and the Company shall not be the continuing or surviving
corporation of such consolidation or merger, (y) any Person shall
consolidate with, or merge with or into, the Company, and the Company
shall be the continuing or surviving corporation of such consolidation
or merger and, in connection with such consolidation or merger, all or
part of the outstanding shares of Company Common Stock shall be changed
into or exchanged for stock or other securities of the Company or any
other Person or cash or any other property, or (z) the Company shall
sell or otherwise transfer (or one or more of its Subsidiaries shall
sell or otherwise transfer) to any Person or Persons (other than the
Company or any of its wholly owned Subsidiaries in one or more
transactions each of which complies with Section 11(o) hereof), in one
or more transactions, assets or earning power aggregating 50% or more of
the assets or earning power of the Company and its Subsidiaries (taken
as a whole) (any such event being a "Section 13 Event"), then, and in
each such case, proper provision shall be made so that: (i) each holder
of a Right (other than Rights which have become void as provided in
Section 7(e) hereof), shall thereafter have the right to receive, upon
the exercise thereof at the Purchase Price (as theretofore adjusted in
accordance with Section 11(a)(ii) hereof), in accordance with the terms
of this Agreement and in lieu of Units of Preferred Stock or shares of
Company Common Stock, such number of validly authorized and issued,
fully paid, non-assessable and freely tradable shares of Common Stock of
the Principal Party (as such term is hereinafter defined), which shares
shall not be subject to any liens, encumbrances, rights of call or first
refusal, transfer restrictions or other adverse claims, as shall be
equal to the result obtained by dividing the Purchase Price (as
theretofore adjusted in accordance with Section 11(a)(ii) hereof) by 50%
of the current market price (determined pursuant to Section 11(d)
hereof) per share of the Common Stock of such Principal Party on the
date of consummation of such Section 13 Event; provided, however, that
the Purchase Price (as theretofore adjusted in accordance with Section
11(a)(ii) hereof) and the number of shares of Common Stock of such
Principal Party so receivable upon exercise of a Right shall be subject
to further adjustment as appropriate in accordance with Section 11(f)
hereof to reflect any events occurring in respect of the Common Stock of
such Principal Party after the occurrence of such Section 13 Event; (ii)
such Principal Party shall thereafter be liable for, and shall assume,
by virtue of such Section 13 Event, all the obligations and duties of
the Company pursuant to this Agreement; (iii) the term "Company" shall
thereafter be deemed to refer to such Principal Party in all respects;
(iv) such Principal Party shall take such steps (including, but not
limited to, the reservation of a sufficient number of shares of its
Common Stock in accordance with Section 9 hereof) 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 Common Stock
thereafter deliverable upon the exercise of the Rights to its shares of
Common Stock; provided, however, that, upon the subsequent occurrence of
any merger, consolidation, sale of all or substantially all of the
assets, recapitalization, reclassification of shares, reorganization or
other extraordinary transaction in respect of such Principal Party, each
holder of a Right shall thereupon be entitled to receive, upon exercise
of a Right and payment of the Purchase Price, such cash, shares, rights,
warrants and other property which such holder would have been entitled
to receive had it, at the time of such transaction, owned the shares of
Common Stock of the Principal Party purchasable upon the exercise of a
Right, and such Principal Party shall take such steps (including, but
not limited to, reservation of shares of stock) as may be necessary to
permit the subsequent exercise of the Rights in accordance with the
terms hereof for such cash, shares, rights, warrants and other property;
and (v) the provisions of Section 11(a)(ii) hereof shall be of no
further effect following the first occurrence of any Section 13 Event.
(b) "Principal Party" shall mean:
(i) in the case of any transaction described in
clause (x) or (y) of the first sentence of Section 13(a)
hereof, (A) the Person that is the issuer of any securities
into which shares of Company Common Stock are converted in
such merger or consolidation, or, if there is more than one
such issuer, the issuer of Common Stock that has the highest
aggregate current market price (determined pursuant to
Section 11(d) hereof) and (B) if no securities are so
issued, the Person that is the other party to such merger or
consolidation, or, if there is more than one such Person,
the Person the Common Stock of which has the highest
aggregate current market price (determined pursuant to
Section 11(d) hereof); 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 largest portion of
the assets or earning power transferred pursuant to such
transaction or transactions, or, if each Person that is a
party to such transaction or transactions receives the same
portion of the assets or earning power transferred pursuant
to such transaction or transactions or if the Person
receiving the largest portion of the assets or earning power
cannot be determined, whichever Person the Common Stock of
which has the highest aggregate current market price
(determined pursuant to Section 11(d) hereof); 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-month period
registered under Section 12 of the Exchange Act
("Registered Common Stock"), or such Person is not a
corporation, and such Person is a direct or indirect
Subsidiary of another Person that has Registered Common
Stock outstanding, "Principal Party" shall refer to such
other Person; (2) if the Common Stock of such Person is not
Registered Common Stock or such Person is not a corporation,
and such Person is a direct or indirect Subsidiary of
another Person but is not a direct or indirect Subsidiary of
another Person which has Registered Common Stock
outstanding, "Principal Party" shall refer to the ultimate
parent entity of such first-mentioned Person; (3) if the
Common Stock of such Person is not Registered Common Stock
or such Person is not a corporation, and such Person is
directly or indirectly controlled by more than one Person,
and one or more of such other Persons has Registered Common
Stock outstanding, "Principal Party" shall refer to
whichever of such other Persons is the issuer of the
Registered Common Stock having the highest aggregate current
market price (determined pursuant to Section 11(d) hereof);
and (4) if the Common Stock of such Person is not Registered
Common Stock or such Person is not a corporation, and such
Person is directly or indirectly controlled by more than one
Person, and none of such other Persons have Registered
Common Stock outstanding, "Principal Party" shall refer to
whichever ultimate parent entity is the corporation having
the greatest shareholders equity or, if no such ultimate
parent entity is a corporation, shall refer to whichever
ultimate parent entity is the entity having the greatest net
assets.
(c) The Company shall not consummate any such
consolidation, merger, sale or transfer unless the Principal Party
shall have a sufficient number of authorized shares of its Common
Stock which have not been issued or reserved for issuance to
permit the exercise in full of the Rights in accordance with this
Section 13, and unless prior thereto the Company and such
Principal Party shall have executed and delivered to the Rights
Agent a supplemental agreement providing for the terms set forth
in paragraphs (a) and (b) of this Section 13 and further providing
that the Principal Party, at its own expense, shall:
(i)(A) file on an appropriate form, as soon as
practicable following the execution of such agreement, a
registration statement under the Securities Act with respect
to the Common Stock that may be acquired upon exercise of
the Rights, (B) cause such registration statement to remain
effective (and to include a prospectus complying with the
requirements of the Securities Act) until the Expiration
Date, and (C) as soon as practicable following the execution
of such agreement, take such action as may be required to
assure that any acquisition of such Common Stock upon the
exercise of the Rights complies with any applicable state
securities or "blue sky" laws; and
(ii) as soon as practicable following the execution
of such agreement, 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.
(d) In case the Principal Party which is to be a party to a
transaction referred to in this Section 13 has a provision in any
of its authorized securities or in its certificate of
incorporation or bylaws or other instrument governing its
corporate affairs, which provision would have the effect of (i)
causing such Principal Party to issue, in connection with, or as a
consequence of, the consummation of a transaction referred to in
this Section 13, shares of Common Stock of such Principal Party at
less than the then current market price per share (determined
pursuant to Section 11(d) hereof) or securities exercisable for,
or convertible into, Common Stock of such Principal Party at less
than such then current market price (other than to holders of
Rights pursuant to this Section 13) or (ii) providing for any
special payment, tax or similar provisions in connection with the
issuance of the Common Stock of such Principal Party pursuant to
the provisions of this Section 13; then, in such event, the
Company shall not consummate any such transaction unless prior
thereto the Company and such Principal Party shall have executed
and delivered to the Rights Agent a supplemental agreement
providing that the provision in question of such Principal Party
shall have been cancelled, waived or amended, or that the
authorized securities shall be redeemed, so that the applicable
provision will have no effect in connection with, or as a
consequence of, the consummation of the proposed transaction.
(e) 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 that have not theretofore been exercised shall thereafter
become exercisable in a manner and for the securities described in
Section 13(a).
Section 14. Fractional Rights and Fractional Shares. (a) The
Company shall not be required to issue fractions of Rights or to
distribute Rights Certificates which evidence fractional Rights. In lieu
of issuing such fractional Rights, there shall be paid to the Persons to
which such fractional Rights would otherwise be issuable, an amount in
cash equal to such fraction of the market value of a whole Right. For
purposes of this Section 14(a), the market value of a whole Right shall
be the closing price of the Rights for the Trading Day immediately prior
to the date on which such fractional Rights would have been otherwise
issuable. The closing price of the Rights for any day shall be, if the
Rights are listed or admitted to trading on a national securities
exchange, as reported in the principal consolidated transaction
reporting system with respect to securities listed on the principal
national securities exchange on which the Rights are listed or admitted
to trading or, if the Rights are not listed or admitted to trading on
any national securities exchange, the last quoted price or, if not so
quoted, the average of the high bid and low asked prices in the over-
the-counter market, as reported by Nasdaq or such other system then in
use or, if on any such date the Rights are not quoted by any such
organization, the average of the closing bid and asked prices as
furnished by a professional market maker making a market in the Rights
selected by a majority of the Board of Directors. If on any such date no
such market maker is making a market in the Rights, the fair value of
the Rights on such date as determined in good faith by a majority of the
Board of Directors shall be used and such determination shall be
described in a statement filed with the Rights Agent and the holders of
the Rights.
(b) The Company shall not be required to issue fractions of
shares of Preferred Stock (other than fractions which are integral
multiples of one one-thousandth of a share of Preferred Stock) upon
exercise of the Rights or to distribute certificates which evidence such
fractional shares of Preferred Stock (other than fractions which are
integral multiples of one one-thousandth of a share of Preferred Stock);
provided, however, that in lieu of fractions of shares of Preferred
Stock which are integral multiples of one one-thousandth of a share of
Preferred Stock, the Company may provide for the issuance of depositary
receipts pursuant to Section 7(c) hereof. In lieu of such fractional
shares of Preferred Stock that are not integral multiples of one
one-thousandth of a share, 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 then
current market price of a share of Preferred Stock on the day of
exercise, determined in accordance with Section 11(d) hereof.
(c) The holder of a Right by the acceptance of the Rights
expressly waives his right to receive any fractional Rights or any
fractional shares upon exercise of a Right, except as permitted by this
Section 14.
Section 15. Rights of Action. All rights of action in respect of
this Agreement, other than rights of action vested in the Rights Agent
pursuant to Section 18 hereof, are vested in the respective registered
holders of the Rights Certificates (and, prior to the Distribution Date,
the registered holders of certificates representing shares of Company
Common Stock); and any registered holder of a Rights Certificate (or,
prior to the Distribution Date, of a certificate representing shares of
Company Common Stock), without the consent of the Rights Agent or of the
holder of any other Rights Certificate (or, prior to the Distribution
Date, of a certificate representing shares of Company Common Stock),
may, in his own behalf and for his own benefit, enforce, and may
institute and maintain any suit, action or proceeding against the
Company or any other Person to enforce, or otherwise act in respect of,
his right to exercise the Rights evidenced by such Rights Certificate in
the manner provided in such Rights Certificate and in this Agreement.
Without limiting the foregoing or any remedies available to the holders
of Rights, it is specifically acknowledged that the holders of Rights
would not have an adequate remedy at law for any breach of this
Agreement and shall be entitled to specific performance of the
obligations hereunder and injunctive relief against actual or threatened
violations of the obligations hereunder of any Person subject to this
Agreement.
Section 16. Agreement of Rights Holders. Every holder of a Right
by accepting the same consents and agrees with the Company and the
Rights Agent and with every other holder of a Right that:
(a) prior to the Distribution Date, the Rights will be
transferable only in connection with the transfer of Company
Common Stock;
(b) after the Distribution Date, the Rights Certificates
are transferable only on the registry books of the Rights Agent if
surrendered at the office of the Rights Agent designated for such
purposes, duly endorsed or accompanied by a proper instrument of
transfer and with the appropriate forms and certificates duly
executed;
(c) subject to Section 6(a) and Section 7(f) hereof, the
Company and the Rights Agent may deem and treat the person in
whose name a Rights Certificate (or, prior to the Distribution
Date, the associated Company Common Stock certificate) is
registered as the absolute owner thereof and of the Rights
evidenced thereby (notwithstanding any notations of ownership or
writing on the Rights Certificates or the associated Company
Common Stock certificate made by anyone other than the Company or
the Rights Agent) for all purposes whatsoever, and neither the
Company nor the Rights Agent, subject to the last sentence of
Section 7 (e) hereof, shall be affected by any notice to the
contrary; and
(d) notwithstanding anything in this Agreement to the
contrary, neither the Company nor the Rights Agent shall have any
liability to any holder of a Right or any other Person as a result
of its inability to perform any of its obligations under this
Agreement by reason of any preliminary or permanent injunction or
other order, decree or ruling issued by a court of competent
jurisdiction or by a governmental, regulatory or administrative
agency or commission, or any statute, rule, regulation or
executive order promulgated or enacted by any governmental
authority, prohibiting or otherwise restraining performance of
such obligation; provided, however, the Company must use its best
efforts to have any such order, decree or ruling lifted or
otherwise overturned as promptly as practicable.
Section 17. Rights Certificate Holder Not Deemed a Stockholder. No
holder, as such, of any Rights Certificate shall be entitled to vote,
receive dividends or be deemed for any purpose the holder of the number
of shares of Preferred Stock or any other securities of the Company
which may at any time be issuable on the exercise of the Rights
represented thereby, nor shall anything contained herein or in any
Rights Certificate be construed to confer upon the holder of any Rights
Certificate, as such, any of the rights of a stockholder of the Company
or any right to vote for the election of directors or upon any matter
submitted to stockholders at any meeting thereof, or to give or withhold
consent to any corporate action, or, except as provided in Section 24
hereof, to receive notice of meetings or other actions affecting
stockholders, or to receive dividends or subscription rights, or
otherwise, until the Right or Rights evidenced by such Rights
Certificate shall have been exercised in accordance with the provisions
hereof. This Section 17 shall also apply to holders, as such, of Rights
prior to the issuance of Rights Certificates.
Section 18. Concerning the Rights Agent. (a) The Company agrees
to pay to the Rights Agent reasonable compensation for all services
rendered by it hereunder and, from time to time, on demand of the Rights
Agent, its reasonable expenses, including reasonable fees and
disbursements of its counsel, incurred in connection with the execution
and administration of this Agreement and the exercise and performance of
its duties hereunder. The Company shall indemnify the Rights Agent for,
and hold it harmless against, any loss, liability, or expense, incurred
without negligence, bad faith or willful misconduct on the part of the
Rights Agent, for anything done or omitted by the Rights Agent in
connection with the acceptance and administration of this Agreement,
including the reasonable costs and expenses of defending against any
claim of liability hereunder.
(b) The Rights Agent shall be protected and shall incur no
liability for or in respect of any action taken, suffered or omitted by
it in connection with its administration of this Agreement in reliance
upon any Rights Certificate or certificate for Preferred Stock or for
other securities of the Company, instrument of assignment or transfer,
power of attorney, endorsement, affidavit, letter, notice, direction,
consent, certificate, statement or other paper or document believed by
it to be genuine and to have been signed, executed and, where necessary,
verified or acknowledged by the proper Person or Persons.
Section 19. Merger or Consolidation or Change of Name of Rights
Agent. (a) Any corporation into which the Rights Agent or any successor
Rights Agent may be merged or with which it may be consolidated, or any
corporation resulting from any merger or consolidation to which the
Rights Agent or any successor Rights Agent shall be a party, or any
corporation succeeding to the corporate trust or shareholder services
businesses 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 hereof. In case at the time such successor
Rights Agent shall succeed to the agency created by this Agreement, any
of the Rights Certificates shall have been countersigned but not
delivered, any such successor Rights Agent may adopt the
countersignature of a predecessor Rights Agent and deliver such Rights
Certificates so countersigned; and in case at that time any of the
Rights Certificates shall not have been countersigned, any successor
Rights Agent may countersign such Rights Certificates either in the name
of the predecessor or in the name of the successor Rights Agent; and in
all such cases such Rights Certificates shall have the full force
provided in the Rights Certificates and in this Agreement.
(b) In case at any time the name of the Rights Agent shall be
changed and at such time any of the Rights Certificates shall have been
countersigned but not delivered, the Rights Agent may adopt the
countersignature under its prior name and deliver Rights Certificates so
countersigned; and in case at that time any of the Rights Certificates
shall not have been countersigned, the Rights Agent may countersign such
Rights Certificates either in its prior name or in its changed name; and
in all such cases such Rights Certificates shall have the full force
provided in the Rights Certificates and in this Agreement.
Section 20. Duties of Rights Agent. The Rights Agent undertakes
the duties and obligations imposed by this Agreement upon the following
terms and conditions, by all of which the Company and the holders of
Rights Certificates, by their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel (who
may be legal counsel for the Company), and the opinion of such
counsel shall be full and complete authorization and protection to
the Rights Agent as to any action taken or omitted by it in good
faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this
Agreement the Rights Agent shall deem it necessary or desirable
that any fact or matter (including, without limitation, the
identity of any Acquiring Person and the determination of
"current market price") be proved or established by the Company
prior to taking or suffering any action hereunder, such fact or
matter (unless other evidence in respect thereof be specified
herein) may be deemed to be conclusively proved and established by
a certificate signed by the Chairman, the Vice Chairman, the Chief
Executive Officer, the President, the Chief Financial Officer, any
Vice President, the Treasurer, any Assistant Treasurer, the
Secretary or any Assistant Secretary of the Company and delivered
to the Rights Agent; provided, however, that so long as any Person
is an Acquiring Person hereunder, such certificate shall be signed
and delivered by a majority of the Board of Directors; and such
certificate shall be full authorization to the Rights Agent for
any action taken or suffered in good faith by it under the
provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder only for its
own negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason
of any of the statements of fact or recitals contained in this
Agreement or in the Rights Certificates or be required to verify
the same (except as to its countersignature on such Rights
Certificates), but all such statements and recitals are and shall
be deemed to have been made by the Company only.
(e) The Rights Agent shall not have any responsibility for
the validity of this Agreement or the execution and delivery
hereof (except the due execution hereof by the Rights Agent) or
for 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 failure by the Company to
satisfy conditions contained in this Agreement or in any Rights
Certificate; nor shall it be responsible for any adjustment
required under the provisions of Section 11 or Section 13 hereof
or for the manner, method or amount of any such adjustment or the
ascertaining of the existence of facts that would require any such
adjustment (except with respect to the exercise of Rights
evidenced by Rights Certificates after receipt by the Rights Agent
of the certificate describing any such adjustment contemplated by
Section 12); nor shall it by any act hereunder be deemed to make
any representation or warranty as to the authorization or
reservation of any shares of Preferred Stock or any other
securities to be issued pursuant to this Agreement or any Rights
Certificate or as to whether any shares of Preferred Stock or any
other securities will, when so issued, be validly authorized and
issued, fully paid and non-assessable.
(f) The Company shall perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged and
delivered all such further acts, instruments and assurances as may
reasonably be required by the Rights Agent for the performance by
the Rights Agent of its duties under this Agreement.
(g) The Rights Agent is hereby authorized and directed to
accept instructions with respect to the performance of its duties
hereunder from the Chairman, the Vice Chairman, the Chief
Executive Officer, the President, the Chief Financial Officer, any
Vice President, the Secretary, any Assistant Secretary, the
Treasurer or any Assistant Treasurer of the Company, and to apply
to such officers for advice or instructions in connection with its
duties, and it shall not be liable for any action taken or
suffered to be taken by it in good faith in accordance with
instructions of any such officer; provided, however, that so long
as any Person is an Acquiring Person hereunder, the Rights Agent
shall accept such instructions and advice only from a majority of
the Board of Directors and shall not be liable for any action
taken or suffered to be taken by it in good faith in accordance
with such instructions of a majority of the Board of Directors.
Any application by the Rights Agent for written instructions from
the Company may, at the option of the Rights Agent, set forth in
writing any action proposed to be taken or omitted by the Rights
Agent under this Rights Agreement and the date on and/or after
which such action shall be taken or such omission shall be
effective. The Rights Agent shall not be liable for any action
taken by, or omission of, the Rights Agent in accordance with a
proposal included in any such application on or after the date
specified in such application (which date shall not be less than
five Business Days after the date any such officer of the Company
actually receives such application, unless any such officer shall
have consented in writing to an earlier date) unless, prior to
taking any such action (or the effective date in the case of an
omission), the Rights Agent shall have received written
instructions in response to such application specifying the action
to be taken or omitted.
(h) The Rights Agent and any shareholder, 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 have a pecuniary
interest in any transaction in which the Company may be
interested, or contract with or lend money to the Company or
otherwise act as fully and freely as though it were not Rights
Agent under this Agreement. Nothing herein shall preclude the
Rights Agent from acting in any other capacity for the Company or
for any other legal entity.
(i) The Rights Agent may execute and exercise any of the
rights or powers hereby vested in it or perform any duty hereunder
either itself or by or through its attorneys or agents.
(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 or in
the exercise of its rights hereunder if the Rights Agent shall
have reasonable grounds for believing that repayment of such funds
or adequate indemnification against such risk or liability is not
reasonably assured to it.
(k) If, with respect to any Rights Certificate surrendered
to the Rights Agent for exercise or transfer, the certificate
attached to the form of assignment or form of election to
purchase, as the case may be, has either not been completed, not
signed 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. If such certificate has been
completed and signed and shows a negative response to clauses 1
and 2 of such certificate, unless previously instructed otherwise
in writing by the Company (which instructions may impose on the
Rights Agent additional ministerial responsibilities, but no
discretionary responsibilities), the Rights Agent may assume
without further inquiry that the Rights Certificate is not owned
by a Person described in Section 7(e) hereof and shall not be
charged with any knowledge to the contrary.
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 days' prior notice in writing mailed to
the Company, and to each transfer agent of the Preferred Stock and the
Company Common 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 thirty days'
prior notice in writing, mailed to the Rights Agent or successor Rights
Agent, as the case may be, and to each transfer agent of the Preferred
Stock and the Company Common 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. If the Company shall fail to make such appointment within a
period of thirty 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 (a) a corporation
organized and doing business under the laws of the United States or any
state of the United States in good standing, shall be authorized under
applicable laws to exercise corporate trust or stock transfer powers and
shall be subject to supervision or examination by federal or state
authorities or (b) an Affiliate of a corporation described in clause
(a). 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 Preferred Stock and the
Company Common Stock, and mail a notice thereof in writing to the
registered holders of the Rights Certificates. Failure to give any
notice provided for in this Section 21, however, or any defect therein,
shall not affect the legality or validity of the resignation or removal
of the Rights Agent or the appointment of the successor Rights Agent.
Section 22. Issuance of New Rights Certificates. Notwithstanding
any of the provisions of this Agreement or 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 a majority of the Board of
Directors to reflect any adjustment or change made in accordance with
the provisions of this Agreement in the Purchase Price or the number or
kind or class of shares or other securities or property that may be
acquired under the Rights Certificates. In addition, in connection with
the issuance or sale of shares of Company Common Stock following the
Distribution Date and prior to the Expiration Date, the Company (a)
shall, with respect to shares of Company Common 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
hereinafter issued by the Company, and (b) may, in any other case, if
deemed necessary or appropriate by a majority of the Board of Directors,
issue Rights Certificates representing the appropriate number of Rights
in connection with such issuance or sale; provided, however, that (i) no
such Rights 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. (a) Subject to Section
30 hereof, the Company may, at its option, by action of a majority of
the Board of Directors, at any time prior to the earlier of (i) the
Close of Business on the tenth Business Day following the Stock
Acquisition Date or (ii) the Final Expiration Date, redeem all but not
less than all of 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 hereof (such redemption price being the "Redemption Price").
The Company may, at its option, by action of a majority of the Board of
Directors, pay the Redemption Price either in shares of Company Common
Stock (based on the "current market price", as defined in Section
11(d) hereof, of the shares of Company Common Stock at the time of
redemption) or cash and the redemption of the Rights shall be effective
on the basis and with such conditions as the Board of Directors may in
its sole discretion establish.
(b) Immediately upon the action of a majority of the Board of
Directors ordering the redemption of the Rights, evidence of which shall
be 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. The Company shall promptly
give public notice of any such redemption; provided, however, that the
failure to give, or any defect in, any such notice shall not affect the
validity of such redemption. Promptly after the action of a majority 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 Company Common
Stock. Any notice which is mailed in the manner herein provided shall be
deemed given, whether or not the holder receives the notice. Each such
notice of redemption will state the method by which the payment of the
Redemption Price will be made.
Section 24. Notice of Certain Events. (a) In case the Company
shall propose, at any time after the Distribution Date, (i) to pay any
dividend payable in stock of any class to the holders of Preferred Stock
or to make any other distribution to the holders of Preferred Stock
(other than a regular quarterly cash dividend paid out of funds legally
available therefor), (ii) to offer to the holders of Preferred Stock
rights or warrants to subscribe for or to purchase any additional shares
of Preferred Stock or shares of stock of any class or any other
securities, rights or options, (iii) to effect any reclassification of
its Preferred Stock (other than a reclassification involving only the
subdivision of outstanding shares of Preferred Stock), (iv) to effect
any consolidation or merger into or with any other Person, or to effect
any sale or other transfer (or to permit one or more of its Subsidiaries
to effect any sale or other transfer), in one or more transactions, of
more than 50% of the assets or earning power of the Company and its
Subsidiaries (taken as a whole) to any other Person or Persons (other
than a transfer by the Company and/or any of its wholly owned
Subsidiaries in one or more transactions each of which complies with
Section 11(o) hereof), or (v) to effect the liquidation, dissolution or
winding up of the Company, then, in each such case, the Company shall
give to each holder of a Rights Certificate, to the extent feasible and
in accordance with Section 25 hereof, a notice of such proposed action,
which shall specify the record date for the purposes of such stock
dividend, distribution of rights or warrants, or the date on which such
reclassification, consolidation, merger, sale, transfer, liquidation,
dissolution, or winding up is to take place and the date of
participation therein by the holders of the shares of Preferred Stock,
if any such date is to be fixed, and such notice shall be so given in
the case of any action covered by clause (i) or (ii) above at least
twenty (20) days prior to the record date for determining holders of the
shares of Preferred Stock for purposes of such action, and in the case
of any such other action, at least twenty (20) days prior to the date of
the taking of such proposed action or the date of participation therein
by the holders of the shares of Preferred Stock whichever shall be the
earlier; provided, however, no such notice shall be required pursuant to
this Section 24, if any wholly owned Subsidiary of the Company effects a
consolidation or merger with or into, or effects a sale or other
transfer of assets or earnings power to, any other wholly owned
Subsidiary of the Company.
(b) In case any Triggering Event shall occur, then, in any
such case, (i) the Company shall as soon as practicable thereafter give
to each holder of a Rights Certificate, to the extent feasible and in
accordance with Section 25 hereof, a notice of the occurrence of such
event, which shall specify the event and the consequences of the event
to holders of Rights under Section 11(a)(ii) or Section 13 hereof, as
the case may be.
Section 25. Notices. All notices and other communications
provided for hereunder shall, unless otherwise stated herein, be in
writing (including by telex, telegram or cable) and mailed or sent or
delivered, if to the Company, at its address at:
Uniphase Corporation
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
and if to the Rights Agent, at its address at:
American Stock Transfer & Trust Company
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇
Notices or demands authorized by this Agreement to be given or
made by the Company or the Rights Agent to the holder of any Rights
Certificate (or, if prior to the Distribution Date, to the holder of
certificates representing shares of Company Common Stock) shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed to such holder at the address of such holder as shown on the
registry books of the Company.
Section 26. Supplements and Amendments. For so long as the
Rights are then redeemable, and, subject to the penultimate sentence of
this Section 26, the Company may, in its sole and absolute discretion,
and the Rights Agent shall, if the Company so directs, supplement or
amend any provision of this Agreement in any respect without the
approval of any holders of certificates representing Rights or shares of
Company Common Stock; provided, however, that so long as Furukawa and
its Affiliates are collectively the Beneficial Owner of at least five
percent (5%) of the shares of Company Common Stock then outstanding, the
definition of "Acquiring Person" in this Agreement shall not be
amended without the prior written consent of Furukawa, acting
reasonably. From and after the time that the Rights are no longer
redeemable and subject to the penultimate sentence of this Section 26,
the Company and the Rights Agent shall, if the Company so directs,
supplement or amend this Agreement without the approval of any holders
of Rights Certificates in order (i) to cure any ambiguity, (ii) to
correct or supplement any provision contained herein which may be
defective or inconsistent with any other provisions herein, (iii) to
shorten or lengthen any time period hereunder, 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 Certificates (other than an Acquiring
Person or an Affiliate or Associate of an Acquiring Person); provided,
however, that (x) this Agreement may not be supplemented or amended to
lengthen, pursuant to clause (iii) of this sentence, (A) subject to
Section 30 hereof, 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, and (y) so long as Furukawa and its
Affiliates are collectively the Beneficial Owner of at least five
percent (5%) of the shares of Company Common Stock then outstanding, the
definition of "Acquiring Person" in this Agreement shall not be
amended without the prior written consent of Furukawa, acting
reasonably. Upon the delivery of a certificate from an appropriate
officer of the Company or, so long as any Person is an Acquiring Person
hereunder, from the majority of the Board of Directors which states that
the proposed supplement or amendment is in compliance with the terms of
this Section 26, the Rights Agent shall execute such supplement or
amendment. Notwithstanding anything contained in this Agreement to the
contrary, (i) no supplement or amendment shall be made which changes the
Redemption Price, the Purchase Price, the Expiration Date or the number
of Units of Preferred Stock or other securities or assets for which a
Right is exercisable without the approval of a majority of the Board of
Directors, and (ii) following the occurrence of a
Section 11(a)(ii) Event, no supplement or amendment whatsoever shall be
made without the approval of the Board of Directors. Prior to the
Distribution Date, the interests of the holders of Rights shall be
deemed coincident with the interests of the holders of Company Common
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 Company Common Stock outstanding at any particular time,
including for purposes of determining the particular percentage of such
outstanding shares of Company Common Stock of which any Person is the
Beneficial Owner, shall be made in accordance with the last sentence of
Rule 13d-3(d)(1)(i) of the Exchange Act Regulations as in effect on the
date hereof. Except as otherwise specifically provided herein, 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 or to the Company, or as
may be necessary or advisable in the administration of this Agreement,
including, without limitation, the right and power (i) to interpret the
provisions of this Agreement, and (ii) to make all determinations deemed
necessary or advisable for the administration of this Agreement. All
such actions, calculations, interpretations and determinations
(including, for purposes of clause (y) below, all omissions with respect
to the foregoing) which are done or made by the Board of Directors in
good faith shall (x) be final, conclusive and binding on the Company,
the Rights Agent, the holders of the Rights and all other parties, and
(y) not subject the Board of Directors or any member thereof to any
liability to the holders of the Rights.
Section 29. 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
shares of Company Common Stock) any legal or equitable right, remedy or
claim under this Agreement; but this Agreement shall be for the sole and
exclusive benefit of the Company, the Rights Agent and the registered
holders of the Rights Certificates (and, prior to the Distribution Date,
registered holders of shares of Company Common Stock).
Section 30. 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 a majority of the
Board of Directors determines in its good faith judgment that severing
the invalid language from this Agreement would adversely affect the
purpose or effect of this Agreement and the Rights shall not then be
redeemable, the right of redemption set forth in Section 23 hereof shall
be reinstated and shall not expire until the Close of Business on the
tenth Business Day following the date of such determination by a
majority of the Board of Directors.
Section 31. Governing Law. This Agreement, each Right and each
Rights Certificate issued hereunder shall be governed by, and construed
in accordance with, the laws of the State of Delaware applicable to
contracts executed in and to be performed entirely in such State.
Section 32. Counterparts. This Agreement may be executed
(including by facsimile) in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when
executed shall be deemed to be an original, but all of which taken
together shall constitute one and the same instrument.
Section 33. Descriptive Headings. The headings contained in this
Agreement are for descriptive purposes only and shall not affect in any
way the meaning or interpretation of this Agreement.
Section 34. Exchange. (a) The Company, upon resolution of a
majority of the Board of Directors may, at its option, at any time after
the first occurrence of a Section 11(a)(ii) Event, exchange all or part
of the then outstanding and exercisable Rights (which shall not include
Rights that have become void pursuant to Section 7(e) hereof) for Units
of Preferred Stock or shares of Company Common Stock (at the election of
the Board of Directors at an exchange ratio of one Unit of Preferred
Stock or one share of Company Common Stock, as the case may be, per
Right, as appropriately adjusted to reflect any stock split, stock
dividend or similar transaction occurring after the date hereof (such
exchange ratio being the "Exchange Ratio"). Notwithstanding the
foregoing, the Board of Directors shall not be empowered to effect such
exchange at any time after any Person (other than an Exempt Person),
together with all Affiliates and Associates of such Person, becomes the
Beneficial Owner of shares of Company Common Stock aggregating 50% or
more of the shares of Company Common Stock then outstanding. From and
after the occurrence of a Section 13(a) Event, any Rights that
theretofore have not been exchanged pursuant to this Section 34(a) shall
thereafter be exercisable only in accordance with Section 13 and may not
be exchanged pursuant to this Section 34(a). The exchange of the Rights
by the Board of Directors may be made effective at such time, on such
basis and with such conditions as the Board of Directors in its sole
discretion may establish.
(b) Immediately upon the action of a majority of the Board of
Directors ordering the exchange of any Rights pursuant to Section 34(a)
and without any further action and without any notice, the right to
exercise such Rights shall terminate and the only right thereafter of a
holder of such Rights shall be to receive that number of Units of
Preferred Stock or shares of Company Common Stock, as the case may be,
equal to the number of such Rights held by such holder multiplied by the
Exchange Ratio. The Company shall promptly give public notice of any
such exchange; provided, however, that the failure to give, or any
defect in, such notice shall not affect the validity of such exchange.
The Company promptly shall mail a notice of any such exchange to all of
the holders of such Rights at their last addresses as they appear upon
the registry books of the Rights Agent. Any notice which is mailed in
the manner herein provided shall be deemed given, whether or not the
holder receives the notice. Each such notice of exchange shall state the
method by which the exchange of Units of Preferred Stock or shares of
Company Common Stock, as the case may be, for Rights will be effected
and, in the event of any partial exchange, the number of Rights which
will be exchanged. Any partial exchange shall be effected pro rata based
on the number of Rights (other than Rights which have become void
pursuant to the provisions of Section 7(e) hereof) held by each holder
of Rights.
(c) In the event that the number of shares of Preferred Stock
or Company Common Stock, as the case may be, 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 any exchange of Rights as
contemplated in accordance with this Section 34, the Company, upon a
resolution of a majority of the Board of Directors, shall take all such
action as may be necessary to authorize additional shares of Preferred
Stock or Company Common Stock, as the case may be, for issuance upon
exchange of the Rights or make adequate provision to substitute, in
whole or in part, (1) cash, (2) other equity securities of the Company,
(3) debt securities of the Company, (4) other assets, or (5) any
combination of the foregoing, having an aggregate value for each Right
to be exchanged equal to the per share market price of one Unit of
Preferred Stock or share of Company Common Stock, as the case may be
(determined pursuant to Section 11(d) hereof) as of the date of a
Section 11(a)(ii) Event, where such aggregate value has been determined
by a majority of the Board of Directors.
(d) The Company shall not be required to issue fractions of
Units of Preferred Stock or fractions of shares of Company Common Stock
or to distribute certificates which evidence fractional Units or
fractional shares. In lieu of issuing fractional Units or fractional
shares, the Company may pay to the registered holders of Rights
Certificates at the time such Rights are exchanged as herein provided an
amount in cash equal to the same fraction of the current market price
(determined pursuant to Section 11(d) hereof) of one Unit of Preferred
Stock or one share of Company Common Stock, as the case may be, on the
Trading Day immediately prior to the date of exchange pursuant to this
Section 34
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, all as of the date first above written.
Attest: UNIPHASE CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Secretary President and Chief
Executive Officer
Attest: AMERICAN STOCK TRANSFER &
TRUST COMPANY
By: /s/ ▇▇▇ ▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇. ▇. ▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President Title: Vice President