Exhibit 4.2
FIRST AMENDMENT TO RIGHTS AGREEMENT
-----------------------------------
FIRST AMENDMENT, dated as of February 21, 1997 (this "First
Amendment") to the Rights Agreement (the "Rights Agreement"), dated as of
October 5, 1996, between ▇▇▇▇▇▇'▇ Entertainment, Inc., a Delaware corporation
(the "Company"), and The Bank of New York, a New York corporation, as Rights
Agent (the "Rights Agent"). Unless the context indicates to the contrary,
capitalized terms used and not defined herein shall have the meanings ascribed
to them in the Rights Agreement.
The Company and the Rights Agent have previously entered into
the Rights Agreement. The Board of Directors of the Company has authorized and
declared a dividend of one Right for each Common Share of the Company
outstanding at the close of business on the Record Date, and has authorized the
issuance of one Right (subject to adjustment as provided in the Rights
Agreement) with respect to each Common Share that shall become outstanding
between the Record Date and the earliest of the Distribution Date, the
Redemption Date and the Final Expiration Date, each Right initially representing
the right to purchase one two-hundredth of a share of Series A Special Stock of
the Company, upon the terms and subject to the conditions set forth in the
Rights Agreement.
Pursuant to Section 26 of the Rights Agreement, the Company
and the Rights Agent may from time to time supplement or amend the Rights
Agreement in accordance with the provisions of such Section. The parties deem it
advisable to supplement and amend the Rights Agreement as provided in this First
Amendment, and the Board of Directors of the Company has duly and validly
authorized the execution and delivery of this First Amendment.
Accordingly, in consideration of the premises and mutual
agreements herein set forth, the parties hereby agree as follows:
1. Exhibit A. Form of Certificate of Designations
The form of Certificate of Designations of Series A Special
Stock of ▇▇▇▇▇▇'▇ Entertainment, Inc. attached to the Rights Agreement as
Exhibit A is hereby amended and restated in its entirety as set forth in Exhibit
A attached hereto.
2. Exhibit B. Form of Right Certificate
The form of Right Certificate attached to the Rights Agreement
as Exhibit B is hereby amended and restated in its entirety as set forth in
Exhibit B attached hereto.
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3. Except as expressly set forth herein, nothing herein shall
be deemed or construed to alter or amend the Rights Agreement in any respect,
and, except as amended and supplemented hereby, the Rights Agreement shall
remain in full force and effect in accordance with the provisions thereof.
Unless the context indicates otherwise, each reference in the Rights Agreement
to "this Rights Agreement" and the words "hereof", "hereto" and words of similar
import shall mean the Rights Agreement, as amended and supplemented hereby.
4. This First Amendment shall be deemed to be a contract made
under the laws of the State of Delaware and for all purposes shall be governed
by and construed in accordance with the laws of such State applicable to
contracts to be made and performed entirely within such State.
5. This First Amendment may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
[signature page to follow]
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IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to Rights Agreement to be duly executed and their respective corporate
seals to be hereunto affixed, this 21st day of February, 1997.
▇▇▇▇▇▇'▇ ENTERTAINMENT, INC.
By /s/ ▇. ▇. ▇▇▇▇▇▇▇▇, ▇▇.
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Name: ▇. ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: Senior Vice President
and General Counsel
[SEAL]
THE BANK OF NEW YORK
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
[SEAL]
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EXHIBIT A
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FORM
of
CERTIFICATE OF DESIGNATIONS
of
SERIES A SPECIAL STOCK
of
▇▇▇▇▇▇'▇ ENTERTAINMENT, INC.
(Pursuant to Section 151 of the
Delaware General Corporation Law)
-----------------------------
▇▇▇▇▇▇'▇ Entertainment, Inc., a corporation organized and existing
under the General Corporation Law of the State of Delaware (hereinafter called
the "Corporation"), hereby certifies that the following resolution was adopted
by the Board of Directors of the Corporation as required by Section 151 of the
General Corporation Law at a meeting duly called and held on February 21, 1997.
RESOLVED, that pursuant to the authority granted to and vested in the
Board of Directors of this Corporation (hereinafter called the "Board of
Directors" or the "Board") in accordance with the provisions of the Certificate
of Incorporation, the Board of Directors hereby creates a series of Special
Stock, par value $1.125 per share (the "Special Stock"), of the Corporation and
hereby states the designation and number of shares, and fixes the relative
rights, preferences, and limitations thereof as follows:
Series A Special Stock:
Section 1. Designation and Amount. The shares of such series shall be
designated as "Series A Special Stock" (the "Series A Special Stock") and the
number of shares constituting the Series A Special Stock shall be 2,000,000
shares. Such number of shares may be increased or decreased by resolution of the
Board of Directors; provided, that no decrease shall reduce the number of shares
of Series A Special Stock to a number less than the number of shares then
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outstanding plus the number of shares reserved for issuance upon the exercise of
outstanding options, rights or warrants or upon the conversion of any
outstanding securities issued by the Corporation convertible into Series A
Special Stock.
Section 2. Dividends and Distributions. (A) Subject to the rights of
the holders of any shares of any series of Special Stock (or any similar stock)
ranking prior and superior to the Series A Special Stock with respect to
dividends, the holders of shares of Series A Special Stock, in preference to the
holders of Common Stock, par value $0.10 per share (the "Common Stock"), of the
Corporation, and of any other junior stock, shall be entitled to receive, when,
as and if declared by the Board of Directors out of funds legally available for
the purpose, quarterly dividends payable in cash on or about the first day of
February, May, August and November in each year (each such date being referred
to herein as a "Quarterly Dividend Payment Date"), commencing on the first
Quarterly Dividend Payment Date after the first issuance of a share or fraction
of a share of Series A Special Stock, in an amount per share (rounded to the
nearest cent) equal to the greater of (a) $1.00 or (b) subject to the provision
for adjustment hereinafter set forth, 200 times the aggregate per share amount
of all cash dividends, and 200 times the aggregate per share amount (payable in
kind) of all non-cash dividends or other distributions other than a dividend
payable in shares of Common Stock or a subdivision of the outstanding shares of
Common Stock (by reclassification or otherwise), declared on the Common Stock
since the immediately preceding Quarterly Dividend Payment Date, or, with
respect to the first Quarterly Dividend Payment Date, since the first issuance
of any share or fraction of a share of Series A Special Stock. In the event the
Corporation shall at any time after the date on which the Special Stock Purchase
Rights of the Corporation are declared by the Board of Directors (the "Rights
Declaration Date") declare or pay any dividend on the Common Stock payable in
shares of Common Stock, or effect a subdivision, combination or consolidation of
the outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the amount to which holders of
shares of Series A Special Stock were entitled immediately prior to such event
under clause (b) of the preceding sentence shall be adjusted by multiplying such
amount by a fraction, the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding immediately prior to
such event.
(B) The Corporation shall declare a dividend or distribution on the
Series A Special Stock as provided in paragraph (A) of this Section 2
immediately after it declares a dividend or distribution on the Common Stock
(other than a dividend payable in shares of Common Stock); provided that, in the
event no dividend or distribution shall have been declared on the Common Stock
during the period between any Quarterly Dividend Payment Date and the next
subsequent Quarterly Dividend Payment Date, a dividend of $1.00 per share on the
Series A Special Stock shall nevertheless be payable on such subsequent
Quarterly Dividend Payment Date.
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(C) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Special Stock from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares of Series A Special Stock, unless the
date of issue of such shares is prior to the record date for the first Quarterly
Dividend Payment Date, in which case dividends on such shares shall begin to
accrue from the date of issue of such shares, or unless the date of issue is a
Quarterly Dividend Payment Date or is a date after the record date for the
determination of holders of shares of Series A Special Stock entitled to receive
a quarterly dividend and before such Quarterly Dividend Payment Date, in either
of which events such dividends shall begin to accrue and be cumulative from such
Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not bear
interest. Dividends paid on the shares of Series A Special Stock in an amount
less than the total amount of such dividends at the time accrued and payable on
such shares shall be allocated pro rata on a share-by-share basis among all such
shares at the time outstanding. The Board of Directors may fix a record date for
the determination of holders of shares of Series A Special Stock entitled to
receive payment of a dividend or distribution declared thereon, which record
date shall be not more than 60 days prior to the date fixed for the payment
thereof.
Section 3. Voting Rights. The holders of shares of Series A
Special Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set
forth, each share of Series A Special Stock shall entitle the holder
thereof to 200 votes on all matters submitted to a vote of the
stockholders of the Corporation. In the event the Corporation shall at
any time after the Rights Declaration Date declare or pay any dividend
on the Common Stock payable in shares of Common Stock, or effect a
subdivision, combination or consolidation of the outstanding shares of
Common Stock (by reclassification or otherwise than by payment of a
dividend in shares of Common Stock) into a greater or lesser number of
shares of Common Stock, then in each such case the number of votes per
share to which holders of shares of Series A Special Stock were
entitled immediately prior to such event shall be adjusted by
multiplying such number by a fraction the numerator of which is the
number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such event.
(B) Except as otherwise provided herein, in any other
Certificate of Designations creating a series of Special Stock or any
similar stock, or by law, the holders of shares of Series A Special
Stock and the holders of shares of Common Stock and any other series or
class of stock of the Corporation which may from time to time be
accorded such voting right shall vote together as one class on all
matters submitted to a vote of stockholders of the Corporation.
(C) (i) If at any time dividends on any Series A Special Stock
shall be in arrears in an amount equal to six (6) quarterly dividends
thereon, the occurrence of such
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contingency shall ▇▇▇▇ the beginning of a period (herein called a
"default period") which shall extend until such time when all
accrued and unpaid dividends for all previous quarterly dividend
periods and for the current quarterly dividend period on all
shares of Series A Special Stock then outstanding shall have been
declared and paid or set apart for payment. During each default
period, the holders of Series A Special Stock, voting as a class,
shall have the right to elect two (2) Directors.
(ii) During any default period, such voting right of
the holders of Series A Special Stock may be exercised
initially at a special meeting called pursuant to subparagraph
(iii) of this Section 3(C) or at any annual meeting of
stockholders, and thereafter at annual meetings of
stockholders, provided that such voting right shall not be
exercised unless the holders of ten percent (10%) in number of
shares of Series A Special Stock outstanding shall be present
in person or by proxy. The absence of a quorum of the holders
of Common Stock shall not affect the exercise by the holders
of Series A Special Stock of such voting right. At any meeting
at which the holders of Series A Special Stock shall exercise
such voting right initially during an existing default period,
they shall have the right, voting as a class, to elect
Directors to fill such vacancies, if any, in the Board of
Directors as may then exist up to two (2) Directors or, if
such right is exercised at an annual meeting, to elect two (2)
Directors. If the number which may be so elected at any
special meeting does not amount to the required number, the
holders of the Series A Special Stock shall have the right to
make such increase in the number of Directors as shall be
necessary to permit the election by them of the required
number. After the holders of the Series A Special Stock shall
have exercised their right to elect Directors in any default
period and during the continuance of such period, the number
of Directors shall not be increased or decreased except by
vote of the holders of Series A Special Stock as herein
provided or pursuant to the rights of any equity securities
ranking senior to or pari passu with the Series A Special
Stock.
(iii) Unless the holders of Series A Special Stock
shall, during an existing default period, have previously
exercised their right to elect Directors, the Board of
Directors may order, or any stockholder or stockholders owning
in the aggregate not less than ten percent (10%) of the total
number of shares of Series A Special Stock outstanding may
request, the calling of a special meeting of the holders of
Series A Special Stock, which meeting shall thereupon be
called by the President, a Vice President or the Secretary
of the Corporation. Notice of such meeting and of any annual
meeting at which holders of Series A Special Stock are
entitled to vote pursuant to this paragraph (C)(iii) shall
be given to each holder of record of Series A Special Stock
by mailing a copy of such notice to him at his last address
as the same appears on the books of the Corporation. Such
meeting shall be called for a time not earlier than 20 days
and not later than 60 days after such order or request or
in default of the calling of such meeting within
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60 days after such order or request, such meeting may be
called on similar notice by any stockholder or stockholders
owning in the aggregate not less than ten percent (10%) of the
total number of shares of Series A Special Stock outstanding.
Notwithstanding the provisions of this paragraph (C)(iii), no
such special meeting shall be called during the period within
60 days immediately preceding the date fixed for the next
annual meeting of the stockholders.
(iv) In any default period, the holders of Common
Stock and other classes of stock of the Corporation if
applicable, shall continue to be entitled to elect the whole
number of Directors until the holders of Series A Special
Stock shall have exercised their right to elect two (2)
Directors voting as a class, after the exercise of which right
(x) the Directors so elected by the holders of Series A
Special Stock shall continue in office until their successors
shall have been elected by such holders or until the
expiration of the default period, and (y) any vacancy in the
Board of Directors may (except as provided in paragraph
(C)(iii) of this Section 3) be filled by vote of a majority of
the remaining Directors theretofore elected by the holders of
the class or classes of stock which elected the Director whose
office shall have become vacant. References in this paragraph
(C) to Directors elected by the holders of a particular class
or classes of stock shall include Directors elected by such
Directors to fill vacancies as provided in clause (y) of the
foregoing sentence.
(v) Immediately upon the expiration of a default
period, (x) the right of the holders of Series A Special Stock
as a class to elect Directors shall cease, (y) the term of any
Directors elected by the holders of Series A Special Stock as
a class shall terminate, and (z) the number of Directors shall
be such number as may be provided for in the certificate of
incorporation or bylaws irrespective of any increase made
pursuant to the provisions of paragraph (C)(ii) of this
Section 3 (such number being subject, however, to change
thereafter in any manner provided by law or in the certificate
of incorporation or bylaws). Any vacancies in the Board of
Directors effected by the provisions of clauses (y) and (z) in
the preceding sentence may be filled by a majority of the
remaining Directors.
(D) Except as set forth herein, or as otherwise provided by law,
holders of Series A Special Stock shall have no special voting rights and their
consent shall not be required (except to the extent they are entitled to vote
with holders of Common Stock and other classes of stock of the Corporation if
applicable, as set forth herein) for taking any corporate action.
Section 4. Certain Restrictions. (A) Subject to paragraph (B), whenever
quarterly dividends or other dividends or distributions payable on the Series A
Special Stock as provided in Section 2 are in arrears, thereafter and until all
accrued and unpaid dividends and distributions, whether or not declared, on
shares of Series A Special Stock outstanding shall have been paid in full, the
Corporation shall not:
A-5
(i) declare or pay dividends on, make any other distributions
on, or redeem or purchase or otherwise acquire for consideration any
shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Special Stock;
(ii) declare or pay dividends on or make any other
distributions on any shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the
Series A Special Stock, except dividends paid ratably on the Series A
Special Stock and all such parity stock on which dividends are payable
or in arrears in proportion to the total amounts to which the holders
of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the
Series A Special Stock, provided that the Corporation may at any time
redeem, purchase or otherwise acquire shares of any such parity stock
in exchange for shares of any stock of the Corporation ranking junior
(either as to dividends or upon dissolution, liquidation or winding up)
to the Series A Special Stock;
(iv) purchase or otherwise acquire for consideration any
shares of Series A Special Stock, or any shares of stock ranking on a
parity with the Series A Special Stock, except in accordance with a
purchase offer made in writing or by publication (as determined by the
Board of Directors) to all holders of such shares upon such terms as
the Board of Directors, after consideration of the respective annual
dividend rates and other relative rights and preferences of the
respective series and classes, shall determine in good faith will
result in fair and equitable treatment among the respective series or
classes.
(B) The provisions of paragraph (A) shall not apply to any redemption
of Shares of any class or series of stock of the Corporation in accordance with
Section E of Article Fourth, as amended, of the Corporation's Certificate of
Incorporation.
(C) The Corporation shall not permit any subsidiary of the Corporation
to purchase or otherwise acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under paragraph (A) of this Section 4,
purchase or otherwise acquire such shares at such time and in such manner.
Section 5. Reacquired Shares. Any shares of Series A Special Stock
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and cancelled promptly after the acquisition thereof. All such
shares shall upon their cancellation become authorized but unissued shares of
Special Stock and may be reissued as part of a new series of Special Stock to be
created by resolution or resolutions of the Board of Directors, subject to the
conditions and restrictions on issuance set forth herein, in the Corporation's
Certificate of
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Incorporation, or in any other Certificate of Designations creating a series
of Special Stock or any similar stock or as otherwise required by law.
Section 6. Liquidation, Dissolution or Winding Up. (A) Upon any
liquidation (voluntary or otherwise), dissolution or winding up of the
Corporation, no distribution shall be made to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series A Special Stock unless, prior thereto, the holders of
shares of Series A Special Stock shall have received $200 per share, plus an
amount equal to accrued and unpaid dividends and distributions thereon, whether
or not declared, to the date of such payment (the "Liquidation Preference").
Following the payment of the full amount of the Liquidation Preference, no
additional distributions shall be made to the holders of shares of Series A
Special Stock unless, prior thereto, the holders of shares of Common Stock shall
have received an amount per share (the "Common Adjustment") equal to the
quotient obtained by dividing (i) the Liquidation Preference by (ii) 200 (as
appropriately adjusted as set forth in subparagraph (C) below to reflect such
events as stock splits, stock dividends and recapitalizations with respect to
the Common Stock) (such number in clause (ii), the "Adjustment Number").
Following the payment of the full amount of the Liquidation Preference and the
Common Adjustment in respect of all outstanding shares of Series A Special Stock
and Common Stock, respectively, holders of Series A Special Stock and holders of
shares of Common Stock shall receive their ratable and proportionate share of
the remaining assets to be distributed in the ratio of the Adjustment Number
to 1 with respect to such Series A Special Stock and Common Stock, on a per
share basis, respectively.
(B) In the event, however, that there are not sufficient assets
available to permit payment in full of the Liquidation Preference and the
liquidation preferences of all other series of stock, if any, which rank on a
parity with the Series A Special Stock, then such remaining assets shall be
distributed ratably to the holders of such parity shares in proportion to their
respective liquidation preferences. In the event, however, that there are not
sufficient assets available to permit payment in full of the Common Adjustment,
then such remaining assets shall be distributed ratably to the holders of Common
Stock.
(C) In the event the Corporation shall at any time after the Rights
Declaration Date declare or pay any dividend on the Common Stock payable in
shares of Common Stock, or effect a subdivision, combination or consolidation of
the outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the Adjustment Number in
effect immediately prior to such event shall be adjusted by multiplying such
Adjustment Number by a fraction, the numerator of which is the number of shares
of Common Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were outstanding immediately
prior to such event.
Section 7. Consolidation, Merger, etc. In case the Corporation shall
enter into any consolidation, merger, combination or other transaction in which
the shares of Common Stock
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are exchanged for or changed into other stock or securities, cash and/or any
other property, then in any such case each share of Series A Special Stock shall
at the same time be similarly exchanged or changed into an amount per share,
subject to the provision for adjustment hereinafter set forth, equal to 200
times the aggregate amount of stock, securities, cash and/or any other property
(payable in kind), as the case may be, into which or for which each share of
Common Stock is changed or exchanged. In the event the Corporation shall at any
time after the Rights Declaration Date declare or pay any dividend on Common
Stock payable in shares of Common Stock, or effect a subdivision, combination
or consolidation of the outstanding shares of Common Stock (by reclassification
or otherwise than by payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then in each such case the
amount set forth in the preceding sentence with respect to the exchange or
change of shares of Series A Special Stock shall be adjusted by multiplying such
amount by a fraction, the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding immediately prior to
such event.
Section 8. Redemption. The shares of Series A Special Stock shall be
redeemable only in accordance with the provisions of Section E of Article
Fourth, as amended, of the Corporation's Certificate of Incorporation.
Section 9. Ranking. The Series A Special Stock shall rank junior to all
other series of the Corporation's Preferred Stock and Special Stock as to the
payment of dividends and the distribution of assets, unless the terms of any
such series shall provide otherwise.
Section 10. Amendment. The Certificate of Incorporation of the
Corporation shall not be amended in any manner which would materially alter or
change the powers, preferences or special rights of the Series A Special Stock
so as to affect them adversely without the affirmative vote of the holders of a
majority or more of the outstanding shares of Series A Special Stock, voting
together as a single class.
Section 11. Fractional Shares. Series A Special Stock may be issued in
fractions of a share which, shall entitle the holder, in proportion to such
holder's fractional shares, to exercise voting rights, receive dividends,
participate in distributions and to have the benefit of all other rights of
holders of Series A Special Stock.
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IN WITNESS WHEREOF, this Certificate of Designations is executed on
behalf of the Corporation by ▇. ▇. ▇▇▇▇▇▇▇▇, ▇▇., its Senior Vice President and
General Counsel, this ____ day of February, 1997.
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▇. ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Senior Vice President
and General Counsel
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EXHIBIT B
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[Form of Right Certificate]
Certificate No. R- ______ Rights
NOT EXERCISABLE AFTER OCTOBER 5, 2006 OR EARLIER IF NOTICE OF
REDEMPTION OR EXCHANGE IS GIVEN OR IF THE COMPANY IS MERGED OR ACQUIRED
PURSUANT TO AN AGREEMENT OF THE TYPE DESCRIBED IN SECTION 1.3(ii)(A)(4)
OF THE RIGHTS AGREEMENT. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE
OPTION OF THE COMPANY, AT $0.01 PER RIGHT ON THE TERMS SET FORTH IN THE
RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES (SPECIFIED IN SECTION
11.1.2 OF THE RIGHTS AGREEMENT), RIGHTS BENEFICIALLY OWNED BY AN
ACQUIRING PERSON, OR ITS AFFILIATES OR ASSOCIATES, OR ANY SUBSEQUENT
HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS REPRESENTED
BY THIS CERTIFICATE ARE HELD OR HAVE BEEN HELD BY A PERSON WHO IS OR
WAS AN ACQUIRING PERSON OR AN ASSOCIATE OR AFFILIATE OF AN ACQUIRING
PERSON OR A NOMINEE THEREOF. THIS RIGHT CERTIFICATE AND THE RIGHTS
REPRESENTED HEREBY HAVE BECOME NULL AND VOID AS SPECIFIED IN SECTION
11.1.2 OF THE RIGHTS AGREEMENT.]1
Right Certificate
▇▇▇▇▇▇'▇ ENTERTAINMENT, INC.
This certifies that , or registered assigns, is the
registered owner of the number of Rights set forth above, each of which entitles
the owner thereof, subject to the terms, provisions and conditions of the
Rights Agreement, dated as of October 5, 1996, as the same may be amended from
time to time (the "Rights Agreement"), between ▇▇▇▇▇▇'▇ Entertainment, Inc., a
Delaware corporation (the "Company"), and The Bank of New York, a New York
corporation authorized to do a banking business, as Rights Agent (the "Rights
Agent"), to purchase from the Company at any time after the Distribution Date
and prior to 5:00 P.M. (New York City time) on October 5, 2006, at the offices
of the Rights Agent, or its successors as Rights Agent, designated for such
purpose, one two-hundredth of a fully paid, nonassessable share of Series A
Special Stock, par value $1.125 per share (the "Special Shares") of the Company,
at a purchase price of $130.00 per one two-hundredth of a share, subject to
adjustment (the "Purchase Price"), upon presentation and surrender of this
Right Certificate with the
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1 The portion of the legend in brackets shall be inserted only if applicable
and shall replace the preceding sentence.
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Form of Election to Purchase and certification duly executed along with a
signature guarantee and such other and further documentation as the Rights Agent
may reasonably request. The number of Rights evidenced by this Right Certificate
(and the number of one two-hundredths of a Special Share which may be purchased
upon exercise thereof) set forth above, and the Purchase Price set forth above,
are the number and Purchase Price as of October 5, 1996 based on the Special
Shares as constituted at such date.
Upon the occurrence certain events described in Section 11.1.2
of the Rights Agreement, if the Rights evidenced by this Right Certificate are
beneficially owned by (i) an Acquiring Person or an Affiliate or Associate of
any such Acquiring Person, (ii) a transferee of any such Acquiring Person,
Associate or Affiliate, or (iii) under certain circumstances specified in the
Rights Agreement, a transferee of a person who, after such transfer, became an
Acquiring Person, or an Affiliate or Associate of an Acquiring Person, such
Rights shall become void, and no holder hereof shall have any right to exercise
such Rights under any provision of the Rights Agreement or otherwise from and
after the occurrence of such event described in Section 11.1.2 of the Rights
Agreement.
Capitalized terms used in this Right Certificate without
definition shall have the meanings ascribed to them in the Rights Agreement. As
provided in the Rights Agreement, the Purchase Price and the number and kind of
Special Shares or other securities which may be purchased upon the exercise of
the Rights evidenced by this Right Certificate are subject to modification and
adjustment upon the happening of certain events.
This Right Certificate is subject to all of the terms,
provisions and conditions of the Rights Agreement, which terms, provisions and
conditions are hereby incorporated herein by reference and made a part hereof
and to which Rights Agreement reference is hereby made for a full description of
the rights, limitations of rights, obligations, duties and immunities hereunder
of the Rights Agent, the Company and the holders of the Right Certificates.
Copies of the Rights Agreement are on file at the principal offices of the
Company and the Rights Agent.
This Right Certificate, with or without other Right
Certificates, upon surrender at the offices of the Rights Agent designated for
such purpose along with a signature guarantee and such other and further
documentation as the Rights Agent may reasonably request, may be exchanged for
another Right Certificate or Right Certificates of like tenor and date
evidencing Rights entitling the holder to purchase a like aggregate number of
one two-hundredths of a Special Share as the Rights evidenced by the Right
Certificate or Right Certificates surrendered shall have entitled such holder
to purchase. If this Right Certificate shall be exercised in part, the holder
shall be entitled to receive upon surrender hereof another Right Certificate or
Right Certificates for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Board
of Directors may, at its option, (i) redeem the Rights evidenced by this Right
Certificate at a redemption price of $0.01 per Right at any time prior to the
earlier of (A) the Shares Acquisition Date or (B) the Final Expiration Date, or
(ii) exchange Common Shares for the Rights evidenced by this Certificate, in
whole or in part, after the occurrence of a Trigger Event. In the event that,
pursuant to the last sentence of Section 1.1 of the Rights Agreement, the Board
of Directors determines that a Person has become an Acquiring Person
inadvertently, and such Person divests Common Shares in accordance with such
sentence, then the Company's right of redemption shall be deemed to have not
expired as a result of such inadvertent
B-2
acquisition. Under certain circumstances set forth in the Rights Agreement, the
decision to redeem shall require the concurrence of a majority of the Continuing
Directors.
No fractional Special Shares will be issued upon the exercise
of any Right or Rights evidenced hereby (other than fractions which are integral
multiples of one two-hundredth of a Special Share, which may, at the election of
the Company, be evidenced by depositary receipts), but in lieu thereof a cash
payment will be made, as provided in the Rights Agreement.
No holder of this Right Certificate, as such, shall be
entitled to vote or receive dividends or be deemed for any purpose the holder of
the Special Shares or of any other securities of the Company which may at any
time be issuable on the exercise hereof, nor shall anything contained in the
Rights Agreement or herein be construed to confer upon the holder hereof, as
such, any of the rights of a stockholder of the Company or any right to vote for
the election of directors or upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate action, or to
receive notice of meetings or other actions affecting stockholders (except as
provided in the Rights Agreement), or to receive dividends or subscription
rights, or otherwise, until the Right or Rights evidenced by this Right
Certificate shall have been exercised as provided in the Rights Agreement.
If any term, provision, covenant or restriction of the Rights
Agreement is held by a court of competent jurisdiction or other authority to be
invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of the Rights Agreement shall remain in full force
and effect and shall in no way be affected, impaired or invalidated; provided,
however, that notwithstanding anything in the Rights Agreement to the contrary,
if any such term, provision, covenant or restriction is held by such court or
authority to be invalid, void or unenforceable and the Board of Directors of
the Company determines in its good faith judgment that severing the invalid
language from the Rights Agreement would adversely affect the purpose or effect
of the Rights Agreement, the Company's right of redemption shall be reinstated
and shall not expire until the close of business on the tenth day following the
date of such determination by the Board of Directors.
This Right Certificate shall not be valid or binding for any
purpose until it shall have been countersigned by the Rights Agent.
B-3
WITNESS the facsimile signature of the proper officers
of the Company and its corporate seal. Dated as of .
Attest: ▇▇▇▇▇▇'▇ ENTERTAINMENT, INC.
By By
---------------------- -------------------------
Title: Title:
Countersigned:
THE BANK OF NEW YORK
By
----------------------
Authorized Signature
B-4
[Form of Reverse Side of Right Certificate]
FORM OF ASSIGNMENT
------------------
(To be executed by the registered holder if such holder
desires to transfer the Right Certificate.)
FOR VALUE RECEIVED _______________________________________
hereby sells, assigns and transfers unto ______________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print name and address
of transferee)
this Right Certificate and the Rights evidenced thereby, together with all
right, title and interest therein, and does hereby irrevocably constitute and
appoint ____________ Attorney, to transfer the within Right Certificate on the
books of the within-named Company, with full power of substitution.
Dated:
----------------------
----------------------------
Signature
Signature Guaranteed:
-------------------------
Signatures must be guaranteed by a member firm of a registered national
securities exchange, a member of the National Association of Securities Dealers,
Inc., or a commercial bank or trust company having an office or correspondent in
the United States.
B-5
--------------------------------------------------------------------------------
The undersigned hereby certifies by checking the appropriate boxes that:
(1) the Rights evidenced by this Right Certificate [ ] are [ ]
are not beneficially owned by an Acquiring Person or an Affiliate or an
Associate (as such terms are defined in the Rights Agreement) thereof; and
(2) after due inquiry and to the best knowledge of the
undersigned, the undersigned [ ] did [ ] did not acquire the Rights evidenced by
this Right Certificate from any Person who is, was or subsequently became an
Acquiring Person or an Affiliate or Associate thereof.
Dated:
----------------------
----------------------------
Signature
Signature Guaranteed:
-------------------------
Signatures must be guaranteed by a member firm of a registered national
securities exchange, a member of the National Association of Securities Dealers,
Inc., or a commercial bank or trust company having an office or correspondent in
the United States.
--------------------------------------------------------------------------------
NOTICE
------
The signature in the foregoing Form of Assignment must conform to
the name as written upon the face of this Right Certificate in every particular,
without alteration or enlargement or any change whatsoever.
In the event the certification set forth above in the Form of
Assignment is not completed, the Company will deem the beneficial owner of the
Rights evidenced by this Right Certificate to be an Acquiring Person or an
Affiliate or Associate hereof and, in the case of an Assignment, will affix a
legend to that effect on any Right Certificates issued in exchange for this
Right Certificate.
B-6
FORM OF ELECTION TO PURCHASE
----------------------------
(To be executed if holder desires to
exercise Rights represented by the
Right Certificate.)
To: ▇▇▇▇▇▇'▇ ENTERTAINMENT, INC.
The undersigned hereby irrevocably elects to exercise
__________________ Rights represented by this Right Certificate to purchase the
Special Shares issuable upon the exercise of such Rights (or such other
securities of the Company or of any other Person which may be issuable upon the
exercise of the Rights) and requests that certificates for such shares be issued
in the name of:
Please insert social security
or other identifying number
------------------------------------------------------------
(Please print name and address)
------------------------------------------------------------
If such number of Rights shall not be all the Rights evidenced by this Right
Certificate, a new Right Certificate for the balance remaining of such Rights
shall be registered in the name of and delivered to:
Please insert social security
or other identifying number
------------------------------------------------------------
(Please print name and address)
------------------------------------------------------------
Dated:
-----------------------
----------------------------
Signature
Signature Guaranteed:
-------------------------
Signatures must be guaranteed by a member firm of a registered
national securities exchange, a member of the National Association of Securities
Dealers, Inc., or a commercial bank or trust company having an office or
correspondent in the United States.
B-7
--------------------------------------------------------------------------------
The undersigned hereby certifies by checking the appropriate boxes that:
(1) the Rights evidenced by this Right Certificate [ ] are [ ]
are not beneficially owned by an Acquiring Person or an Affiliate or an
Associate thereof; and
(2) after due inquiry and to the best knowledge of the
undersigned, the undersigned [ ] did [ ] did not acquire the Rights evidenced by
this Right Certificate from any person who is, was or subsequently became an
Acquiring Person or an Affiliate or Associate thereof.
Dated:
----------------------
----------------------------
Signature
Signature Guaranteed:
-------------------------
Signatures must be guaranteed by a member firm of a registered
national securities exchange, a member of the National Association of Securities
Dealers, Inc., or a commercial bank or trust company having an office or
correspondent in the United States.
--------------------------------------------------------------------------------
NOTICE
------
The signature in the foregoing Form of Election to Purchase must
conform to the name as written upon the face of this Right Certificate in every
particular, without alteration or enlargement or any change whatsoever.
In the event the certification set forth above in the Form of
Election to Purchase is not completed, the Company will deem the beneficial
owner of the Rights evidenced by this Right Certificate to be an Acquiring
Person or an Affiliate or Associate hereof.
B-8
