LONGVIEW FIBRE COMPANY AND CHASEMELLON SHAREHOLDER SERVICES, L.L.C. (Rights Agent) RIGHTS AGREEMENT Dated as of March 1, 1999
EXHIBIT
4.4
LONGVIEW
FIBRE COMPANY
AND
CHASEMELLON
SHAREHOLDER SERVICES, L.L.C.
(Rights
Agent)
Dated
as
of March 1, 1999
Exhibit
4.11
TABLE
OF CONTENTS
Page
|
Section
1.
|
Certain
Definitions.
|
|
Section
2.
|
Appointment
of Rights Agent.
|
|
Section
3.
|
Issue
of Rights Certificates.
|
|
Section
4.
|
Form
of Rights Certificates.
|
|
Section
5.
|
Countersignature
and Registration.
|
|
Section
6.
|
Transfer,
Split Up, Combination and Exchange of Rights Certificates,
|
|
Mutilated,
Destroyed, Lost or Stolen Rights Certificates.
|
|
Section
7.
|
Exercise
of Rights; Purchase Price; Expiration Date of Rights.
|
|
Section
8.
|
Cancellation
and Destruction of Rights Certificates.
|
|
Section
9.
|
Reservation
and Availability of Capital Stock.
|
|
Section
10.
|
Common
Stock Record Date.
|
|
Section
11.
|
Adjustment
of Purchase Price, Number and Kind of Shares or Number of
|
|
Rights.
|
|
Section
12.
|
Certificate
of Adjusted Purchase Price or Number of Shares.
|
|
Section
13.
|
Consolidation,
Merger or Sale or Transfer of Assets or Earning Power.
|
|
Section
14.
|
Fractional
Rights and Fractional Shares.
|
|
Section
15.
|
Rights
of Action.
|
|
Section
16.
|
Agreement
of Rights Holders.
|
|
Section
17.
|
Rights
Certificate Holder Not Deemed a Stockholder.
|
|
Section
18.
|
Concerning
the Rights Agent.
|
|
Section
19.
|
Merger
or Consolidation or Chance of Name of Rights Agent.
|
|
Section
20.
|
Duties
of Rights Agent.
|
|
Section
21.
|
Change
of Rights Agent.
|
|
Section
22.
|
Issuance
of New Rights Certificates.
|
|
Section
23.
|
Redemption
and Termination.
|
|
Section
24.
|
Exchange.
|
|
Section
25.
|
Transition
from Prior Rights Agreement.
|
|
Section
26.
|
Notice
of Certain Events.
|
|
Section
27.
|
Notices.
|
|
Section
28.
|
Supplements
and Amendments.
|
|
Section
29.
|
Successors.
|
|
Section
30.
|
Determinations
and Actions by the Board of Directors, etc.
|
|
Section
31.
|
Benefits
of this Agreement.
|
|
Section
32.
|
Severability.
|
|
Section
33.
|
Governing
Law.
|
|
Section
34.
|
Counterparts.
|
|
Section
35.
|
Descriptive
Headings.
|
--
RIGHTS
AGREEMENT, dated as of March 1, 1999 (the “Agreement”), between Longview Fibre
Company, a Washington corporation (the “Company”), and ChaseMellon Shareholder
Services, L.L.C., a New Jersey limited liability company (the “Rights
Agent”).
On
January 26, 1999 (the “Rights Dividend Declaration Date”), the Board of
Directors of the Company authorized and declared a dividend distribution of
one
common share purchase right for each share of Common Stock (as hereinafter
defined) of the Company outstanding at the Close of Business on March 1, 1999
(the “Record Date”), and has authorized the issuance of one right (as such
number may hereinafter be adjusted pursuant to the provisions of Section 11
hereof) for each share of Common Stock of the Company issued between the Record
Date (whether originally issued or delivered from the Company’s treasury) and
the Distribution Date (as hereinafter defined), each right initially
representing the right to purchase one-tenth of one share of Common Stock of
the
Company upon the terms and subject to the conditions hereinafter set forth
(the
“Rights”);
Therefore,
in consideration of the promises 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 and
Associates of such Person, shall be the Beneficial Owner of 10% or more of
the
shares of Common Stock then outstanding, but shall not include (i) the Company,
(ii) any Subsidiary of the Company, (iii) any employee benefit plan of the
Company or of any Subsidiary of the Company, or any person or entity organized,
appointed or established by the Company for or pursuant to the terms of any
such
plan or (iv) any Approved Group.
(i) No
Person shall become an “Acquiring Person” as the result of an acquisition of
shares of Common Stock by the Company which, by reducing the number of shares
outstanding, increases the proportionate number of shares beneficially owned
by
such Person to 10% or more of the shares of Common Stock of the Company then
outstanding; provided,
however, that if a Person shall become the Beneficial Owner of 10% or more
of
the shares of Common Stock of the Company then outstanding by reason of share
purchases by the Company and shall, after such share purchases by the Company,
become the Beneficial Owner of any additional shares of Common Stock of the
Company, then such Person shall be deemed to be an “Acquiring Person” hereunder;
and
(ii) If
the
Board of Directors of the Company determines in good faith that a Person who
would otherwise be an “Acquiring Person” as defined pursuant to the foregoing
provisions of this paragraph (a), has become such inadvertently, and such Person
divests as promptly as practicable a sufficient number of shares of Common
Stock
so that such Person would no longer be an “Acquiring Person” (as defined
pursuant to the foregoing provisions of this paragraph (a)), then such Person
shall not be deemed to be an “Acquiring Person” for any purpose of this
Agreement.
(b) “Act”
shall mean the Securities Act of 1933, as amended and in effect on the date
of
this Agreement.
(c) “Adjustment
Event” shall mean any Section 11(a)(ii) Event or any Section 13
Event.
(d) “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 and in effect on the date of this Agreement (the
“Exchange Act”).
(e) “Approved
Group” shall mean any group which includes any member of the Founding Families
if a majority of the shares of Common Stock beneficially owned by the members
of
such group (such beneficial ownership including the right to vote such shares)
are beneficially owned by a member or members of the Founding
Families.
(f) A
Person shall be deemed the “Beneficial Owner” of, and shall be deemed to
“beneficially own,” any securities:
(i) which
such Person or any of such Person’s Affiliates or Associates, directly or
indirectly, has the right to acquire (whether such right is exercisable
immediately or only after the passage of time) pursuant to any agreement,
arrangement or understanding (whether or not in writing) or upon the exercise
of
conversion rights, exchange rights, rights, warrants or options, or otherwise;
provided,
however, that a Person shall not be deemed the “Beneficial Owner” of, or to
“beneficially own,” (A) securities tendered pursuant to a tender or exchange
offer made by such Person or any of such Person’s Affiliates or Associates until
such tendered securities are accepted for purchase or exchange, or (B)
securities issuable upon exercise of Rights at any time prior to the occurrence
of an Adjustment Event, or (C) securities issuable upon exercise of Rights
from
and after the occurrence of an Adjustment Event which Rights were acquired
by
such Person or any of such Person’s Affiliates or Associates prior to the
Distribution Date or pursuant to Section 3(a) or Section 22 hereof (the
“Original Rights”) or pursuant to Section 11(i) hereof in connection with an
adjustment made with respect to any Original Rights;
(ii) which
such Person or any of such Person’s Affiliates or Associates, directly or
indirectly, has the right to vote or dispose of or has “beneficial ownership” of
(as determined pursuant to Rule 13d-3 of the General Rules and Regulations
under
the Exchange Act), including pursuant to any agreement, arrangement or
understanding (whether or not in writing); provided,
however, that a Person shall not be deemed the “Beneficial Owner” of, or to
“beneficially own,” any security under this subparagraph (ii) as a result of an
agreement, arrangement or understanding to vote such security if such agreement,
arrangement or understanding: (A) arises solely from a revocable proxy or
written consent given in response to a public proxy or consent solicitation
made
pursuant to, and in accordance with, the applicable provisions of the General
Rules and Regulations under the Exchange Act, and (B) is not also then
reportable by such Person on Schedule 13D under the Exchange Act (or any
comparable or successor report); or
(iii) which
are
beneficially owned, directly or indirectly, by any other Person (or any
Affiliate or Associate thereof) with which such Person (or any of such Person’s
Affiliates or Associates) has any agreement, arrangement or understanding
(whether or not in writing), for the purpose of acquiring, holding, voting
(except pursuant to a revocable proxy or written consent as described in the
proviso to subparagraph (ii) of this paragraph (e)) or disposing of any voting
securities of the Company; provided,
however, that nothing in this paragraph (e) shall cause a Person engaged in
business as an underwriter of securities to be the “Beneficial Owner” of, or to
“beneficially
own,” any securities acquired through such person’s participation in good faith
in a firm commitment underwriting until the expiration of forty days after
the
date of such acquisition and provided
further
that in no case, for the purpose of determining that a Person is an Acquiring
Person, shall an officer or director of the Company be deemed (A) the Beneficial
Owner of any securities beneficially owned by another officer or director of
the
Company solely by reason of actions undertaken by such Persons in their capacity
as officers or directors of the Company or (B) the Beneficial Owner of
securities held of record by the trustee of any employee benefit plan of the
Company or any Subsidiary of the Company for the benefit of any employee of
the
Company or any Subsidiary of the Company, other than the officer or director,
by
reason of any influence that such officer or director may have over the voting
of the securities held in the plan;
Notwithstanding
anything in this definition of “Beneficial Owner” and “beneficially own” to the
contrary, the phrase “then outstanding,” when used with reference to a Person
who is the Beneficial Owner of securities of the Company, shall mean the number
of such securities then issued and outstanding together with the number of
such
securities not then actually issued and outstanding which such Person would
be
deemed to beneficially own hereunder.
(g) “Business
Day” shall mean any day other than a Saturday, Sunday or a day on which banking
institutions in the State of New York or Ridgefield Park, New Jersey are
authorized or obligated by law or executive order to close.
(h) “Close
of Business” on any given date shall mean 5:00 p.m., New York City time, on such
date; provided,
however, that if such date is not a Business Day it shall mean 5:00 p.m., New
York City time, on the next succeeding Business Day.
(i) “Common
Stock” shall mean, when used with reference to the Company, the shares of common
stock of the Company, except that “Common Stock” when used with reference to any
Person other than the Company shall mean the capital stock of such Person with
the greatest voting power, or the equity securities or other equity interest
having power to control or direct the management, of such Person.
(j) “Common
Stock Equivalents” shall have the meaning set forth in Section 11(a)(iii)
hereof.
(k) “Current
Market Price” shall have the meaning set forth in Section 11 (d) hereof.
(l) “Current
Value” shall have the meaning set forth in Section. 11(a)(iii) hereof.
(m) “Distribution
Date” shall have the meaning set forth in Section 3(a) hereof.
(n) “Exchange
Act” shall have the meaning set forth in Section 1(d) hereof.
(o) “Exchange
Ratio” shall have the meaning set forth in Section 24 hereof.
(p) “Expiration
Date” shall have the meaning set forth in Section 7(a) hereof.
(q) “Final
Expiration Date” shall mean the Close of Business on March 1, 2009.
(r) “Founding
Families” shall mean any descendant of ▇. ▇. ▇▇▇▇▇▇▇▇▇▇ or M. A. ▇▇▇▇▇▇▇▇▇▇ or
the spouse of any such descendant, any trust or other arrangement for the
benefit of any such descendant or the spouse of any such descendant or any
charitable organization established by any such descendant or the spouse of
any
such descendant.
(s) “NASDAQ”
shall have the meaning set forth in Section 11 (d) hereof.
(t) “Offering
Person” shall mean any Person (other than (i) the Company, (ii) any Subsidiary
of the Company, (iii) any employee benefit plan of the Company or of any
Subsidiary of the Company, or any person or entity organized, appointed or
established by the Company for or pursuant to the terms of any such plan or
(iv)
the Approved Group) who alone or together with its Affiliates and Associates,
shall announce (within the meaning of Rule 14d-2(a) of the General Rules and
Regulations under the Exchange Act) a tender or exchange offer, if upon
consummation thereof, such Person would be the Beneficial Owner of 10% or more
of the shares of Common Stock then outstanding.
(u) “Person”
shall mean any individual, firm, corporation, partnership, limited liability
company or other entity.
(v) “Principal
Party” shall have the meaning set forth in Section 13(b) hereof.
(w) “Prior
Agreement Right” shall have the meaning set forth in Section 25
hereof.
(x) “Prior
Rights Agreement” shall mean the Rights Agreement, dated as of March 1, 1989, as
amended, between the Company and The Bank of California, N.A. (as rights agent
and succeeded in such capacity by ChaseMellon Shareholder Services,
L.L.C.).
(y) “Purchase
Price” shall have the meaning
set forth
in
Section 7(b) hereof.
(z) “Record
Date” shall have the meaning
set forth
in
the recitals to this Agreement.
(aa) “Redemption
Date” shall have the meaning
set forth
in
Section 7(a) hereof.
(bb) “Redemption
Price” shall have the meaning set forth in Section 23(a) hereof.
(cc) “Rights”
shall have the meaning set forth in the recitals to this Agreement.
(dd) “Rights
Certificates” shall have the meaning set forth in Section 3(a)
hereof.
(ee) “Rights
Dividend Declaration Date” shall have the meaning set forth in the recitals to
this Agreement.
(ff) “Section
11(a)(ii) Event” shall mean any event described in Section 11(a)(ii) (A) or (B)
hereof.
(gg) “Section
11(a)(ii) Adjustment Date” shall have the meaning set forth in Section
11(a)(iii) hereof.
(hh) “Section
13 Event” shall mean any event described in clause (x), (y) or (z) of Section
13(a) hereof.
(ii) “Spread”
shall have the meaning set forth in Section 11(a)(iii) hereof.
(jj) “Stock
Acquisition Date” shall mean the first date of public announcement (which, for
purposes of this definition, shall include, without limitation, a report filed
pursuant to Section 13(d) under the Exchange Act) by the Company or an Acquiring
Person that an Acquiring Person has become such.
(kk) “Subsidiary”
shall mean, with reference to any Person, any corporation of which an amount
of
voting securities sufficient to elect at least a majority of the directors
of
such corporation is beneficially owned, directly or indirectly, by such Person,
or otherwise controlled by such Person.
(ll) “Substitution
Period” shall have the meaning set forth in Section 11(a)(iii)
hereof.
(mm) “Summary
of Rights” shall have the meaning
set forth
in
Section 3(b) hereof.
(nn) “Trading
Day” shall have the meaning set forth in Section 11 (d) hereof.
Section
2. Appointment
of Rights Agent.
The
Company hereby appoints the Rights Agent to act as agent for the Company in
accordance with the terms and conditions hereof, and the Rights Agent hereby
accepts such appointment. The Company may from time to time appoint such
Co-Rights Agents as it may deem necessary or desirable.
Section
3. Issue
of Rights Certificates.
(a) Until
the earlier of (i) the Stock Acquisition Date or (ii) the Close of Business
on
the tenth Business Day after the date that a tender or exchange offer by any
Person (other than the Company, any Subsidiary of the Company, any employee
benefit plan of the Company or of any Subsidiary of the Company, or any Person
or entity organized, appointed or established by the Company for or pursuant
to
the terms of any such plan or the Approved Group) is first published or sent
or
given within the meaning of Rule 14d-2(a) of the General Rules and Regulations
under the Exchange Act, if upon consummation thereof, such Person would be
the
Beneficial Owner of 10% or more of the shares of Common Stock then outstanding
(the earliest of (i) and (ii) being herein referred to as the “Distribution
Date”), (x) the Rights will be evidenced (subject to the provisions of paragraph
(b) of this Section 3) by the certificates for the Common Stock registered
in
the names of the holders of the Common Stock (which certificates for Common
Stock shall be deemed also to be certificates for Rights) and not by separate
certificates, and (y) the Rights will be transferable only in connection with
the transfer of the underlying shares of Common Stock (including a transfer
to
the Company). As soon as practicable after the Distribution Date, the Company
will notify the Rights Agent of the occurrence thereof and will request the
transfer agent of the Common Stock to provide the Rights Agent with a
shareholder list. As soon as practicable after the Rights Agent receives such
notice and list, the Rights Agent will send by first-class, insured, postage
prepaid mail, to each record holder of the Common Stock as of the Close of
Business on the Distribution Date, at the address of such holder shown on the
records of the Company, one or more rights certificates, in substantially the
form of Exhibit A hereto (the “Rights Certificates”), evidencing one Right for
each share of Common Stock so held, subject to adjustment as provided herein.
As
of and after the Distribution Date, the Rights will be evidenced solely by
such
Rights Certificates.
(b) As
promptly as practicable following the Record Date, the Company will send a
copy
of a Summary of Rights to Purchase Common 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 the 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 the Common Stock outstanding
as
of the Record Date, until the Distribution Date, and the registered holders
of
the Common Stock shall also be the registered holders of the associated Rights.
Until the earlier of the Distribution Date or the Expiration Date, the transfer
of any certificates representing shares of Common Stock in respect of which
Rights have been issued shall also constitute the transfer of the Rights
associated with such shares of Common Stock.
(c) Rights
shall be issued in respect of all shares of Common Stock which are issued after
the Record Date but prior to the earliest of the Distribution Date or the
Expiration Date. Certificates representing such shares of Common Stock shall
also be deemed to be certificates for Rights, and shall bear the following
legend:
This
certificate also evidences and entitles the holder hereof to certain Rights
as
set forth in the Rights Agreement between Longview Fibre Company (the “Company”)
and ChaseMellon Shareholder Services, L.L.C. dated as of March 1, 1999, (the
“Rights Agreement’), the terms of which are hereby incorporated herein by
reference and a copy of which is on file at the principal offices of the
Company. Under certain circumstances, as set forth in the Rights Agreement,
such
Rights will be evidenced by separate certificates and will no longer be
evidenced by this certificate. The Company will mail to the holder of this
certificate a copy of the Rights Agreement, as in effect on the date of mailing,
without charge promptly after receipt of a written request therefor. Under
certain circumstances set forth in the Rights Agreement, Rights issued to,
or
held by, any Person who is, was or becomes an Acquiring Person or any Affiliate
or Associate thereof (as such terms are defined in the Rights Agreement),
whether currently held by or on behalf of such Person or by any subsequent
holder, may become null and void.
With
respect to such certificates containing the foregoing legend, until the earliest
of (i) the Distribution Date (ii) the Redemption Date or (iii) the Expiration
Date, the Rights associated with the Common Stock represented by such
certificates shall be evidenced by such certificates alone and registered
holders of Common Stock shall also be the registered holders of the associated
Rights, and the transfer of any of such certificates shall also constitute
the
transfer of the Rights associated with the Common Stock represented by such
certificates. In the event that the Company purchases or acquires any Common
Stock after the Record Date but prior to the Distribution Date, any Rights
associated with such Common Stock shall be deemed cancelled and retired so
that
the Company shall not be entitled to exercise any Rights associated with the
Common Stock which are no longer outstanding.
Section
4. Form
of Rights Certificates.
(a) The
Rights Certificates (and the Form of Election To Purchase and of Assignment
to
be printed on the reverse thereof) shall each be substantially in the form
set
forth in Exhibit 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 (which do not affect the duties or responsibilities
of the Rights Agent) and as are not inconsistent with the provisions of this
Agreement, or as may be required to comply with any applicable law or with
any
rule or regulation made pursuant thereto or with any rule or regulation of
any
stock exchange on which the Rights may from time to time be listed, or to
conform to usage. Subject to the provisions of Section 11 and Section 22 hereof,
the Rights Certificates, whenever distributed, shall be dated as of the Record
Date and on their face shall entitle the holders thereof to purchase such number
of shares of Common Stock as shall be set forth therein at the Purchase Price,
but the amount and type of securities purchasable upon the exercise of each
Right and the Purchase Price thereof shall be subject to adjustment as provided
herein.
(b) Any
Rights Certificate issued pursuant to Section 3(a) or Section 22 hereof that
represents Rights Beneficially Owned by any Person known to be: (i) an Acquiring
Person or any Associate or Affiliate of an Acquiring Person, (ii) a transferee
of an Acquiring Person (or of any such Associate or Affiliate) who becomes
a
transferee after the Acquiring Person becomes such, or (iii) a transferee of
an
Acquiring Person (or of any such Associate or Affiliate) who becomes a
transferee prior to or concurrently with the Acquiring Person becoming such
and
receives such Rights pursuant to either (A) a transfer (whether or not for
consideration) from the Acquiring Person to holders of equity interests in
such
Acquiring Person or to any Person with whom such Acquiring Person has any
continuing agreement, arrangement or understanding regarding the transferred
Rights or (B) a transfer which the Board of Directors of the Company has
determined is part of a plan, agreement, arrangement or understanding which
has
as a primary purpose or effect avoidance of Section 7(e) hereof, and any Rights
Certificate issued pursuant to Section 6 or Section 11 hereof upon transfer,
exchange, replacement or adjustment of any other Rights Certificate referred
to
in this sentence, shall contain (to the extent feasible and provided that the
Company shall have notified the Rights Agent that this Section 4(b) applies)
the
following legend, modified as applicable to apply to such Person:
The
Rights represented by this Rights Certificate are or were beneficially owned
by
a Person who was or became an Acquiring Person or an Affiliate or Associate
of
an Acquiring Person (as such terms are defined in the Rights Agreement).
Accordingly, this Rights Certificate and the Rights represented hereby may
become null and void in the circumstances specified in Section 7(e) of such
Agreement.
Section
5. Countersignature
and Registration.
(a) The
Rights Certificates shall be executed on behalf of the Company by its Chief
Executive Officer, its President or any Vice President, either manually or
by
facsimile signature, and shall have affixed thereto the Company’s seal or a
facsimile thereof which shall be attested by the Secretary or an Assistant
Secretary of the Company, either manually or by facsimile signature. The Rights
Certificates shall be manually countersigned by the Rights Agent and shall
not
be valid for any purpose useless so countersigned. In case any officer of the
Company who shall have signed any of the Rights Certificates shall cease to
be
such officer of the Company before countersignature by the Rights Agent and
issuance and delivery by the Company, such Rights Certificates nevertheless,
may
be countersigned by the Rights Agent and issued and delivered by the Company
with the same force and effect as though the person who signed such Rights
Certificates had not ceased to be such officer of the Company; and any Rights
Certificates may be signed on behalf of the Company by any Person who, at the
actual date of the execution of such Rights Certificate, shall be a proper
officer of the Company to sign such Rights Certificate, although at the date
of
the execution of this Rights Agreement any such Person was not such an
officer.
(b) Following
the Distribution Date and receipt by the Rights Agent of the notice and list
of
record holders of Rights referred to in Section 3(a), the Rights Agent will
keep
or cause to be kept, at its office designated pursuant to Section 27 hereof
or
offices designated as the appropriate place for surrender of Rights Certificates
upon exercise or transfer, books for registration and transfer of the Rights
Certificates issued hereunder. Such books shall show the names and addresses
of
the respective holders of the Rights Certificates, the number of Rights
evidenced on its face by each of the Rights Certificates and the certificate
number and the date of each of the Rights Certificates.
Section
6. Transfer,
Split Up, Combination and Exchange of Rights Certificates, Mutilated, Destroyed,
Lost or Stolen Rights Certificates.
(a) Subject
to the provisions of Section 4(b), Section 7(e) and Section 14 hereof, at any
time after the Close of Business on the Distribution Date, and at or prior
to
the Close of Business on the earlier of the Redemption Date or the Expiration
Date, any Rights Certificate or Certificates (other than Rights Certificates
representing Rights that may have been exchanged pursuant to Section 24 hereof)
may be transferred, split up, combined or exchanged for another Rights
Certificate or Certificates entitling the registered holder to purchase a like
number of shares of Common Stock or, following an Adjustment Event, other
securities, cash or other assets, as the case may be, as the Rights Certificate
or Certificates surrendered then entitled such holder (or former holder in
the
case of a transfer) to purchase. Any registered holder desiring to transfer,
split up, combine or exchange any Rights Certificate or Certificates shall
make
such request in writing delivered to the Rights Agent, and shall surrender
the
Rights Certificate or Certificates to be transferred, split up, combined or
exchanged at the office or offices of the Rights Agent designated for such
purpose. Neither the Rights Agent nor the Company shall be obligated to take
any
action whatsoever with respect to the transfer of any such surrendered Rights
Certificate until the registered holder shall have completed and signed the
certificate contained in the Form of Assignment on the reverse side of such
Rights Certificate and shall have provided such additional evidence of the
identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates
or
Associates thereof or a bond as the Company or Rights Agent shall reasonably
request. Thereupon the Rights Agent shall, subject to Section 4(b), Section
7(e)
and Section 14 hereof, countersign and deliver to the Person entitled thereto
a
Rights Certificate or Rights Certificates, as the case may be, as so requested.
The Company may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer, split
up, combination or exchange of Rights Certificates. The Rights Agent may require
the Corporation or the Person entitled to such Rights Certificate to provide
evidence that such payment has been made prior to countersigning and delivering
any Rights Certificates pursuant to this paragraph.
(b) Upon
receipt by the Company and the Rights Agent of evidence reasonably satisfactory
to them of the loss, theft, destruction or mutilation of a Rights Certificate,
and, in case of loss, theft or destruction of indemnity arrangements or security
satisfactory to them, and reimbursement to the Company and the Rights Agent
of
all reasonable expenses incidental thereto, and upon surrender to the Rights
Agent and cancellation of the Rights Certificate if mutilated, the Company
will
execute and deliver a new Rights Certificate of like tenor to the Rights Agent
for countersignature and delivery to the registered owner in lieu of the Rights
Certificate so lost, stolen, destroyed or mutilated.
Section
7. Exercise
of Rights; Purchase Price; Expiration Date of Rights.
(a) Subject
to Section 7(e) hereof, the registered holder of any Rights Certificate may
exercise the Rights evidenced thereby (except as otherwise provided herein
including, without limitation, the restrictions on exercisability set forth
in
Section 9(c), Section 11(a)(iii) and Section 23(a) hereof) in whole or in part
at any time after the Distribution Date upon surrender of the Rights
Certificate, with the form of election to purchase and the certificate on the
reverse side thereof duly executed, to the Rights Agent at the office or offices
of the Rights Agent designated for such purpose, together with payment of the
Purchase Price for each one-tenth of one share of Common Stock (or other
securities, cash or other assets, as the case may be) as to which such
surrendered Rights are then exercisable, at or prior to the earliest of (i)
the
Final Expiration Date, or (ii) the time at which the Rights are redeemed as
provided in Section 23 hereof (the “Redemption Date”) and (iii) the time at
which such Rights are exchanged as provided in Section 24 hereof (such earliest
date being referred to herein as the “Expiration Date”); provided,
however, that if the number of Rights exercised would entitle the holder thereof
to receive any fraction of a Common Share greater than one-tenth of one share,
the holder thereof shall not be entitled to exercise such Rights unless such
holder concurrently purchases from the Company (and in such event the Company
shall sell to such holder), at a price in proportion to the Purchase Price,
an
additional fraction of a Common Share which, when added to the number of Common
Shares to be received upon such exercise, will equal an integral number of
Common Shares.
(b) The
Purchase Price for each whole share of Common Stock pursuant to the exercise
of
a Right shall initially be $50 (equivalent to $5 for each one-tenth of one
share), and shall be subject to adjustment from time to time as provided in
Sections 11 and 13(a) hereof and shall be payable in lawful money of the United
States of America in accordance with paragraph (c) below.
(c) Upon
receipt of a Rights Certificate representing exercisable Rights, with the form
of election to purchase and the certificate duly executed, accompanied by
payment of the Purchase Price for the shares of Common Stock (or other shares,
securities, cash or other assets, as the case may be) to be purchased as set
forth below and an amount equal to any applicable tax or governmental charge,
the Rights Agent shall, subject to Section 20(k) hereof, thereupon promptly
(i)
requisition from any transfer agent of the shares of Common Stock certificates
for the total number of shares of Common Stock to be purchased and the Company
hereby irrevocably authorizes its transfer agent to comply with all such
requests, (ii) requisition from the Company the amount of cash, if any, to
be
paid in lieu of fractional shares in accordance with Section 14 hereof, (iii)
after receipt of such certificates or depositary receipts, cause the same to
be
delivered to or upon the order of the registered holder of such Rights
Certificate, registered in such name or names as may be designated by such
holder, and (iv) after receipt thereof, deliver such cash, if any, to or upon
the order of the registered holder of such Rights Certificate. The payment
of
the Purchase Price (as such amount may be reduced pursuant to Section 11(a)(iii)
hereof) shall be made by certified bank check cashier’s check, bank draft or
money order payable to the order of the Company except that, if so provided
by
the Board of Directors of the Company, the payment of the Purchase Price
following the occurrence of a Section 11(a)(ii) Event and until the first
occurrence of a Section 13 Event may be made wholly or in part by delivery
of a
certificate or certificates (with appropriate stock powers executed in blank
attached thereto) evidencing a number of Common Shares of the Company equal
to
the then Purchase Price divided by the closing price (as determined pursuant
to
Section 11 (d) hereof) per share of Common Stock on the Trading Day immediately
preceding the date of such exercise. In the event that the Company is obligated
to issue other securities of the Company, pay cash and/or distribute other
property pursuant to Section 11 (a) hereof, the Company will make all
arrangements necessary so that such other securities, cash and/or other property
are available for distribution to the Rights Agent, if and when necessary to
comply with this Agreement.
(d) In
case
the registered holder of any Rights Certificate shall exercise less than all
the
Rights evidenced thereby, a new Rights Certificate evidencing Rights equivalent
to the Rights remaining unexercised shall be issued by the Rights Agent and
delivered to, or upon the order of, the registered holder of such Rights
Certificate, registered in such name or names as may be designated by such
holder, subject to the provisions of Section 6 and Section 14
hereof.
(e) Notwithstanding
anything in this Agreement to the contrary, from and after the first occurrence
of an Adjustment 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 of Affiliate) who becomes a
transferee after the Acquiring Person becomes such, or (iii) a transferee of
an
Acquiring Person (or of any such Associate or Affiliate) who becomes a
transferee prior to or concurrently with the Acquiring Person becoming such
and
receives such Rights pursuant to either (A) a transfer (whether or not for
consideration) from the Acquiring Person to holders of equity interests in
such
Acquiring Person or to any Person with whom the Acquiring Person has any
continuing agreement, arrangement or understanding regarding the transferred
Rights or (B) a transfer which the Board of Directors of the Company has
determined is part of a plan, agreement, arrangement or understanding which
has
as a primary purpose or effect the avoidance-of this Section 7(e), shall become
null and void without any further action and no holder of such Rights shall
have
any rights whatsoever with respect to such Rights, whether under any provision
of this Agreement or otherwise. The Company shall notify the Rights Agent when
this Section (7)(e) applies and shall use all reasonable efforts to insure
that
the provisions of this Section 7(e) and Section 4(b) hereof are complied with,
but neither the Company nor the Rights Agent shall have any liability to any
holder of Rights Certificates or other Person as a result of the Company’s
failure to make any determinations with respect to an Acquiring Person or any
of
their respective Affiliates, Associates or transferees hereunder.
(f) Notwithstanding
anything in this Agreement to the contrary, neither the Rights Agent nor the
Company shall be obligated to undertake any action with respect to a registered
holder upon the occurrence of any purported exercise as set forth in this
Section 7 unless such registered holder shall have (i) properly completed and
signed the certificate contained in the form of election to purchase set forth
on the reverse side of the Rights Certificate surrendered for such exercise,
and
(ii) provided such additional evidence of the identity of the Beneficial Owner
(or former Beneficial Owner) or Affiliates or Associates thereof as the Company
or the Rights Agent 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
any of the provisions of this Agreement. The Company shall deliver to the Rights
Agent for cancellation, and retirement, and the Rights Agent shall so cancel
and
retire, any other Rights Certificate purchased or acquired by the Company
otherwise than upon the exercise thereof. The Rights Agent shall deliver all
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 covenants and agrees that it will cause to be reserved and kept
available out of its authorized and unissued shares of Common Stock, the number
of shares of Common Stock that will be sufficient to permit the exercise in
full
of all outstanding Rights in accordance with Section 7.
(b) So
long as the shares of Common Stock issuable and deliverable upon the exercise
of
the Rights are listed on any national securities or stock exchange, the Company
shall use its best efforts to cause, from and after such time as the Rights
become exercisable, all Common Stock reserved for such issuance to be listed
on
such exchange upon official notice of issuance upon such exercise.
(c) The
Company shall use its best efforts (i) to file, as soon as practicable following
the first occurrence of one of the transactions described in Section 11(a)(ii)
on which the consideration to be delivered by the Company upon exercise of
the
Rights has been determined in accordance with Section 1 l(a)(iii), or as soon
as
is required by law following the Distribution Date, as the case may be, a
registration statement under the Securities Act with respect to the securities
purchasable upon exercise of the Rights on an appropriate form, (ii) to cause
such registration statement to become effective as soon as practicable after
such filing and (iii) to cause such registration statement to remain effective
(with a prospectus at all times meeting the requirements of the Securities
Act)
until the earlier of (A) the date as of which the Rights are no longer
exercisable for such securities and (B) the Expiration Date. The Company also
shall take such action as may be appropriate under, or to ensure compliance
with, the securities or “blue sky” laws of the various states in connection with
the exercise of the Rights. The Company may temporarily suspend, for a period
of
time not to exceed ninety (90) days after the date set forth in clause (i)
of
the first sentence of this Section 9(c), the exercisability of the Rights in
order to prepare and file such registration statement and permit it to become
effective. Upon any such suspension, the Company shall 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, by issuing a public announcement, temporarily suspend the exercisability
of
the Rights until such time as a registration statement has been declared
effective. The Company shall notify the Rights Agent whenever it makes a public
announcement pursuant to this Section 9(c) and provide the Rights Agent with
a
copy of the announcement. Notwithstanding any provision of this Agreement to
the
contrary, the Rights shall not be exercisable in any jurisdiction, unless the
requisite qualification in such jurisdiction shall have been obtained and until
a registration statement has been declared effective.
(d) The
Company covenants and agrees that it will take all such action as may be
necessary to ensure that all shares of Common Stock delivered upon exercise
of
Rights shall, at the time of delivery of the certificates for such shares
(subject to payment of the Purchase Price), be duly and validly authorized
and
issued and fully paid and non-assessable.
(e) The
Company further covenants and agrees that it will pay when due and payable
any
and all taxes and governmental charges which may be payable in respect of the
issuance or delivery of the Rights Certificates or of any certificates for
Common Stock upon the exercise of Rights. The Company shall not, however, be
required to pay any transfer tax which may be payable in respect of any transfer
or delivery of Rights Certificates to a Person other than, or the issuance
or
delivery of a number of shares of Common Stock (or other securities, as the
case
may be) in respect of a name other than that of, the registered holder of the
Rights Certificates evidencing Rights surrendered for exercise or to issue
or
deliver any certificates for shares of Common Stock upon the exercise of any
Rights until such tax shall have been paid (any such tax being payable by the
holder of such Rights Certificate at the time of surrender) or until it has
been
established to the Company’s satisfaction that no such tax is due.
Section
10. Common
Stock Record Date.
Each
Person in whose name any certificate for shares of Common Stock is issued upon
the exercise of Rights shall for all purposes be deemed to have become the
holder of record of the shares of Common Stock represented thereby on, and
such
certificate shall be dated, the date upon which the Rights Certificate
evidencing such Rights was duly surrendered and payment of the Purchase Price
(and all applicable taxes and governmental charges) was made. Prior to the
exercise of the Rights evidenced thereby, the holder of a Rights Certificate,
as
such, shall not be entitled to any rights of a stockholder of the Company with
respect to shares for which the Rights shall be exercisable, including without
limitation, the right to vote, to receive dividends or other distributions
or to
exercise any Preemptive rights, and shall not be entitled to receive any notice
of any proceedings of the Company, except as provided herein.
Section
11. Adjustment
of Purchase Price, Number and Kind of Shares or Number of Rights.
The
Purchase Price, the number and kind of shares covered by each Right and the
number of Rights outstanding are subject to adjustment from time to time as
provided in this Section 11.
(a) (i)
In the
event the Company shall at any time after the date of this Agreement (A) declare
a dividend on the Common Stock payable in shares of Common Stock, (B) subdivide
the outstanding Common Stock, (C) combine the outstanding Common Stock into
a
smaller number of shares, or (D) issue any shares of its capital stock in a
reclassification of the Common Stock (including any such reclassification in
connection with a consolidation or merger in which the Company is the continuing
or surviving corporation), except as otherwise provided in this Section 11
(a)
and Section 7(e) hereof, the Purchase Price in effect at the time of the record
date for such dividend or of the effective date of such subdivision, combination
or reclassification, and the number and kind of shares of capital stock issuable
on such date, shall be proportionately adjusted so that the holder of any Right
exercised after such time shall be entitled to receive, upon payment of the
Purchase Price then in effect, the aggregate number and kind of shares of
capital stock which, if such Right had been exercised immediately prior to
such
date and at a time when the Common Stock transfer books of the company were
open, he would have owned upon such exercise and been entitled to receive by
virtue of such dividend, subdivision, combination or reclassification;
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. If an event occurs which
would require an adjustment under both this Section 11(a)(i) and Section
11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall
be
in addition to, and shall be made prior to any adjustment required pursuant
to
Section 11(a)(ii) hereof.
(ii) Subject
to Section 24 of this Agreement, in the event:
(A) any
Person (other than (1) the Company, (2) any Subsidiary of the Company, (3)
any
employee benefit plan of the Company or of any Subsidiary of the Company or
any
Person or entity organized, appointed or established by the Company for or
pursuant to the terms of any such plan or (4) an Approved Group), alone or
together with its Affiliates and Associates, shall, at any time after the date
of this Agreement, become an Acquiring Person, or
(B) any
Acquiring Person or any Associate or Affiliate of any Acquiring Person, at
any
time after the date of this Agreement, directly or indirectly, (1) shall merge
into the Company or otherwise combine with the Company and the Company shall
be
the continuing or surviving corporation of such merger or combination and shares
of Company Common Stock shall remain outstanding and unchanged, (2) shall,
in
one or more transactions, other than in connection with the exercise of Rights
or in connection with the exercise or conversion of securities exercisable
or
convertible into capital stock of the Company or any of its Subsidiaries,
transfer any assets to the Company or any of its Subsidiaries in exchange (in
whole or in part) for shares of any class of capital stock of the Company or
any
of its Subsidiaries or for securities exercisable for or convertible into shares
of any class of capital stock of the Company or any of its Subsidiaries or
otherwise obtain from the Company or any of its Subsidiaries, with or without
consideration, any additional shares of any class of capital stock of the
Company or any of its Subsidiaries or securities exercisable for or convertible
into shares of any class of capital stock of the Company or any of its
subsidiaries (other than an part of a pro rata distribution to all holders
of
Common Shares), (3) shall sell purchase, lease, exchanger mortgage, pledge,
transfer or otherwise dispose (in one or more transactions), to, from or with,
as the case may be, the Company or any of its Subsidiaries, assets, including
securities, on terms and conditions less favorable to the Company than the
Company would be able to obtain in arm’s-length negotiation with an unaffiliated
third-party, (4) shall receive any compensation from the Company or any of
the
Company’s Subsidiaries
other than compensation for full-time employment as a regular employee at rates
in accordance with the Company’s (or its Subsidiaries’) past practices, (5)
shall receive the benefit, directly or indirectly (except proportionately as
a
stockholder), of any loan advances, guarantees, pledges or other financial
assistance or an tax credits or other tax advantage provided by the Company
or
any of its Subsidiaries, or (6) commences a tender offer or exchange offer
for
securities of the Company or any of its Subsidiaries,
then,
promptly following the first occurrence of a Section 11(a)(ii) Event, proper
provision shall be made so that each holder of a Right (except as provided
below
and in Section 7(e) hereof) shall thereafter have the right to receive, upon
exercise thereof in accordance with the terms of this Agreement (and upon
payment of the Purchase Price set forth in this Section 11(a)(ii)), such number
of shares of Common Stock of the Company as shall equal the result obtained
by
dividing the then current Purchase Price for each whole share of Common Stock
issuable pursuant to the exercise of the Rights immediately prior to the first
occurrence of a Section 11(a)(ii) Event (which, following such first occurrence
and subject to further adjustment in accordance with this Agreement, shall
thereafter be the “Purchase Price” for each Right and for all purposes of this
Agreement), by 50% of the Current Market Price (determined pursuant to Section
11 (d) hereof) per share of Common Stock on the date of such first occurrence
(such number of shares, the “Adjustment Shares”).
(iii) In
the event that the number of shares of Common Stock which are authorized by
the
Company’s Articles of Incorporation but not outstanding or reserved for issuance
for purposes other than upon exercise of the Rights are not sufficient to permit
the exercise in full of the Rights in accordance with the foregoing subparagraph
(ii) of this Section 11(a), the Company shall: (A) determine the excess of
(1)
the value of the Adjustment Shares issuable upon the exercise of a Right (the
“Current Value”) over (2) the Purchase Price (such excess, the “Spread”), and
(B) with respect to each Right, make adequate provision to substitute for the
Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash,
(2)
a reduction in the Purchase Price, (3) Common Stock or other equity securities
of the Company (including, without limitation, shares, or units of shares,
of
preferred stock which the Board of Directors of the Company has deemed to have
the same value as shares of Common Stock (such shares of preferred stock,
“Common Stock Equivalents”)), (4) debt securities of the Company, (5) other
assets, or (6) any combination of the foregoing having an aggregate value equal
to the Current Value, where such aggregate value has been determined by the
Board of Directors of the Company based upon the advice of a nationally
recognized investment banking firm selected by the Board of Directors of the
Company; provided,
however, if the Company shall not have made adequate provision to deliver 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 latest of
(x) and (y) being referred to herein as the “Section 11(a)(ii) Adjustment
Date”), then the Company shall be obligated to deliver, upon the surrender for
exercise of a Right and without requiring payment of the Purchase Price, shares
of Common Stock (to the extent available) and then, if necessary, cash, which
shares and/or cash have an aggregate value equal to the Spread. If the Board
of
Directors of the Company shall determine in good faith that it is likely that
sufficient additional shares of Common Stock could be authorized for issuance
upon exercise in full of the Rights, the thirty (30) day period set forth above
may be extended to the extent necessary, but not more than ninety (90) days
after the Section 11(a)(ii) Adjustment Date, in order that the Company may
seek
stockholder approval for the authorization of such additional shares (such
period, as it may be extended, the “Substitution Period”). To the extent that
the Company determines that some action need be taken pursuant to the first
and/or second sentences of this Section 11(a)(iii), the Company (x) shall
provide, subject to Section 7(e) hereof, that such action shall apply uniformly
to all outstanding Rights, and (y) may suspend the exercisability of the Rights
until the expiration of the Substitution Period in order to seek any
authorization of additional shares and/or to decide the appropriate form of
distribution to be made pursuant to such first sentence and to determine the
value thereof. In the event of any such suspension, the Company shall issue
a
public announcement, with notice and copy thereof to the Rights Agent, stating
that the exercisability of the Rights has been temporarily suspended, as well
as
a public announcement at such time as the suspension is no longer in effect,
with notice and a copy thereof to the Rights Agent. For purposes of this Section
11(a)(iii), the value of the Common Stock shall be the Current Market Price
(as
determined pursuant to Section 11(d) hereof) per share of the Common Stock
on
the Section 11(a)(ii) Adjustment Date and the value of any “Common Stock
Equivalent” shall be deemed to have the same value as the Common Stock on such
date.
(b) In
case the Company shall fix a record date for the issuance of rights, options
or
warrants to all holders of Common Stock entitling them (for a period expiring
within forty-five (45) calendar days after such record date) to subscribe for
or
purchase Common Stock (or securities convertible into Common Stock) at a price
per share of Common Stock (or having a conversion price per share, if a security
convertible into Common Stock) less than the Current Market Price (as determined
pursuant to Section 11(d) hereof) 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 and not including such record date by
a
fraction, the numerator of which shall be the number of shares of Common Stock
outstanding on such record date, plus the number of shares of Common Stock
which
the aggregate offering price of the total number of shares of Common Stock
(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 Common Stock outstanding on such
record date, plus the number of additional shares of Common Stock 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 the Board of Directors of the Company, whose determination shall
be described in a statement filed with the Rights Agent and shall be binding
on
the Rights Agent and the holders of the Rights. Shares of Common Stock owned
by
or held for the account of the Company shall not be deemed outstanding for
the
purpose of any such computation. Such adjustment shall be made successively
whenever such a record date is fixed, and in the event that such rights or
warrants are not so issued, the Purchase Price shall be adjusted to be the
Purchase Price which would then be in effect if such record date had not been
fixed.
(c) In
case
the Company shall fix a record date for a distribution to all holders of the
Common Stock (including any such distribution made in connection with a
consolidation or merger in which the Company is the continuing corporation)
of
evidences of indebtedness or assets (other than a regular quarterly cash
dividend or dividend payable in Common Stock), or subscription rights or
warrants (excluding those referred to in Section 11 (b) hereof), the Purchase
Price to be in effect after such record date shall be determined by multiplying
the Purchase Price in effect immediately prior to such record date by a
fraction, the numerator of which shall be the Current Market Price (as
determined pursuant to Section 11 (d) hereof) per share of Common Stock on
such
record date, less the fair market value (as determined in good faith by the
Board of Directors of the Company, whose determination shall be described in
a
statement filed with the Rights Agent and shall be binding on the Rights Agent
and the holders of the Rights) of the portion of the assets or evidences of
indebtedness so to be distributed or of such subscription rights or warrants
applicable to a share of Common Stock and the denominator of which shall be
such
Current Market Price (as determined pursuant to Section 11 (d) hereof) per
share
of Common 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 issuable 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) For
the
purpose of any computation hereunder, other than computations made pursuant
to
Section 11(a)(iii) hereof, the “Current Market Price” per share of Common Stock
on any date shall be deemed to be the average of the daily closing prices per
share of such Common Stock for the thirty (30) consecutive Trading Days (as
such
term is hereinafter defined) immediately prior to and not including such date,
and for purpose of computations made pursuant to Section 11 (a) (iii) hereof,
the “Current Market Price” per share of Common Stock on any date shall be deemed
to be the average of the daily closing prices per share of such Common Stock
for
the ten (10) consecutive Trading Days immediately following and not including
such date; provided,
however, that in the event that the Current Market Price per share of the Common
Stock is determined during a period following the announcement by the issuer
of
such Common Stock of (A) a dividend or distribution on such Common Stock payable
in shares of such Common Stock or securities convertible into shares of such
Common Stock (other than the Rights), or (B) any subdivision, combination or
reclassification of such Common Stock, and prior to the expiration of the
requisite thirty (30) Trading Day or ten (10) Trading Day period, -as set forth
above, after the ex-dividend date for such dividend or distribution, or the
record date for such subdivision, combination or reclassification, then, and
in
each such case, the “Current Market Price” shall be properly adjusted to take
into account ex-dividend trading. The closing price for each day shall be the
last sale price, regular way, in either case as reported in the principal
consolidated transaction reporting system with respect to securities listed
or
admitted to trading on the New York Stock Exchange or, if the shares of Common
Stock are not listed or admitted to trading on the New York Stock Exchange,
as
reported in the principal consolidated transaction reporting system with respect
to securities listed on the principal national securities exchange on which
the
shares of Common Stock are listed or admitted to trading or, if the shares
of
Common Stock are not listed or admitted to trading on any national securities
exchange the last quoted price or, if not so quoted, the average of the high
bid
and low asked prices in the over-the-counter market, as reported by the National
Association of Securities Dealers, Inc. Automated Quotation System (“NASDAQ”) or
such other system then in use, or, if on any such date the shares of Common
Stock are not quoted by any such organization, the average or the closing bid
and asked prices as furnished by a professional market maker making a market
in
the Common Stock selected by the Board of Directors of the Company. If on any
such date no market maker is making a market in the Common Stock, the fair
value
of such shares on such date as determined in good faith by the Board of
Directors of the Company shall be used. The term “Trading Day” shall mean a day
on which the principal national securities exchange on which the shares of
Common Stock are listed or admitted to trading is open for the transaction
of
business or, if the shares of Common Stock are not listed or admitted to trading
on any national securities exchange, a Business Day. If the Common Stock is
not
publicly held or not so listed or traded, “Current Market Price” per share shall
mean the fair value per share as determined in good faith by the Board of
Directors of the Company, whose determination shall be described in a statement
filed with the Rights Agent and shall be conclusive for all
purposes.
(e) Anything
herein to the contrary notwithstanding, no adjustment in the Purchase Price
shall be required unless such adjustment would require an increase or decrease
of at least one percent (1%) in the Purchase Price; provided,
however,
that any adjustments which by reason of this Section 11 (e) are not required
to
be made shall be carried forward and taken into account in any subsequent
adjustment. All calculations under this Section 11 shall be made to the nearest
cent or to the nearest one-thousandth of a share of Common Stock as the case
may
be. Notwithstanding the first sentence of this Section 11(e), any adjustment
required by this Section 11 shall be made no later than the earlier of (i)
three
years from the date of the transaction which mandates such adjustment, or (ii)
the Expiration Date.
(f) If
as a
result of an adjustment made pursuant to Section 11(a)(ii) or Section 13(a)
hereof, the holder of any Right thereafter exercised shall become entitled
to
receive any shares of capital stock other than Common 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 Common Stock contained in Sections 11(a), (b), (c), (e), (g),
(h), (i), (j), (k) and (m), and the provisions of Sections 7, 9, 10, 13 and
14
hereof with respect to the Common 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 shares of Common Stock purchasable from time to
time
hereunder upon exercise of the Rights, all subject to further adjustment as
provided herein.
(h) Unless
the Company shall have exercised its election as provided in Section 11(i),
upon
each adjustment of the Purchase Price as a result of the calculations made
in
Sections 11 (b) and (c), each Right outstanding immediately prior to the making
of such adjustment shall thereafter evidence the right to purchase, at the
adjusted Purchase Price, that number of shares of Common Stock calculated to
the
nearest one ten-thousandth of a share of Common Stock obtained by (i)
multiplying (x) the number of shares of Common stock covered by a Right
immediately prior to this adjustment, by (y) the Purchase Price in effect
immediately prior to such adjustment of the Purchase Price, and (ii) dividing
the product so obtained by the Purchase Price in effect immediately after such
adjustment of the Purchase Price.
(i) The
Company may elect on or after the date of any adjustment of the Purchase Price
to adjust the number of Rights, in lieu of any adjustment of the number of
shares of Common Stock purchasable upon the exercise of a Right. Each of the
Rights outstanding after the adjustment of the number of Rights shall be
exercisable for the number of shares of Common Stock for which a Right was
exercisable immediately prior to such adjustment. Each Right held of record
prior to such adjustment of the number of Rights shall become that number of
Rights (calculated to the nearest one ten-thousandth) obtained by dividing
the
Purchase Price in effect immediately prior to adjustment of the Purchase Price
by the Purchase Price in effect immediately after adjustment of the Purchase
Price. The Company shall make a public announcement, with notice and copy
thereof to the Rights Agent, of its election to adjust the number of Rights,
indicating the record date for the adjustment, and, if known at the time, the
amount of the adjustment to be made. This record date may be the date on which
the Purchase Price is adjusted or any day thereafter, but, if the Rights
Certificates have been issued, shall be at least ten days later than the date
of
the public announcement. If Rights Certificates have been issued, upon each
adjustment of the number of Rights pursuant to this Section 11(i), the Company
shall, as promptly as practicable, cause to be distributed to holders of record
of Rights Certificates on such record date Rights Certificates evidencing,
subject to Section 14 hereof, the additional Rights to which such holders shall
be entitled as a result of such adjustment, or, at the option of the Company,
shall cause to be distributed to such holders of record in substitution and
replacement for the Rights Certificates held by such holders prior to the date
of adjustments and upon surrender thereof, if required by the Company, new
Rights certificates evidencing all the Rights to which such holders shall be
entitled after such adjustment. Rights Certificates so to be distributed shall
be issued, executed and countersigned in the manner provided for herein (and
may
bear, at the option of the Company, the adjusted Purchase Price) and shall
be
registered in the names of the holders of record of Rights Certificates on
the
record date specified in the public announcement.
(j) Irrespective
of any adjustment or change in the Purchase Price or the number of shares of
Common Stock issuable upon the exercise of the Rights, the Rights Certificates
theretofore and thereafter issued may continue to express the Purchase Price
and
the number of shares of Common 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 par value of the shares of Common Stock issuable upon exercise of
the
Rights, the company shall take any corporate action which may, in the opinion
of
its counsel, be necessary in order that the Company may validly and legally
issue fully paid and non-assessable such number of shares of common stock at
such adjusted Purchase Price.
(l) In
any
case in which this Section 11 shall require that an adjustment in the Purchase
Price be made effective as of a record date for a specified event, the Company
may elect, with notice of such election to the Rights Agent, to defer until
the
occurrence of such event the issuance to the holder of any Right exercised
after
such record date of the shares of Common Stock and other capital stock or
securities of the Company, if any, issuable upon such exercise over and above
the number of shares of Common Stock and other capital stock or securities
of
the Company, if any, issuable upon such exercise on the basis of the Purchase
Price in effect prior to such adjustment; provided,
however, that the Company shall deliver to such holder a due ▇▇▇▇ or other
appropriate instrument evidencing such holder’s right to receive such additional
shares (fractional or otherwise) or securities upon the occurrence of the event
requiring such adjustment.
(m) Anything
in this Section 11 to the contrary notwithstanding, the Company shall be
entitled to make such reductions in the Purchase Price, in addition to those
adjustments expressly required by this Section 11, as and to the extent that
in
their good faith judgment the Board of Directors of the Company shall determine
to be advisable in order that any (i) consolidation or subdivision of the Common
Stock, (ii) issuance wholly for cash of any shares of Common Stock at less
than
the Current Market Price, (iii) issuance wholly for cash of shares of Common
Stock or securities which by their terms are convertible into or exchangeable
for shares of Common 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 Common Stock shall not be taxable to such
stockholders.
(n) The
Company covenants and agrees that it shall not, at any time after the
Distribution Date, (i) consolidate with any other Person (other than a
Subsidiary of the Company in a transaction which complies with Section 11 (o)
hereof), (ii) merge with or into any other Person (other than a Subsidiary
of
the company in a transaction which complies with Section 11(o) hereof), or
(iii)
sell or transfer (or permit any Subsidiary to sell or transfer), in one
transaction or a series of related transactions, assets or earning power
aggregating more than 50% of the assets or earning power of the Company and
its
Subsidiaries (taken as a whole) to any other Person or Persons (other than
a
Company and/or any of its Subsidiaries in one or more transactions each of
which
complies with Section 11 (o) hereof), if (x) at the time of or immediately
after
such consolidation, merger, sale or transfer 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, sale or transfer, the stockholders of the Person
who
constitutes, or would constitute, the “Principal Party” for purposes of Section
13(a) hereof shall have received a distribution of Rights previously owned
by
such Person or any of its Affiliates and Associates.
(o) The
Company covenants and agrees that, after the Distribution Date, it will not,
except as permitted by Section 23 or Section 28 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.
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 and reasonably detailed statement of the facts and computation
accounting for such adjustment, (b) promptly file with the Rights Agent, and
with the transfer agent for the Common Stock, a copy of such certificate, and
(c) mail a brief summary thereof to each holder of a Rights Certificate (or,
if
prior to the Distribution Date, to each holder of a certificate representing
shares of Common Stock) in accordance with Section 26 hereof. Notwithstanding
the foregoing sentence, the failure by the Company to make such certification
or
give such notice shall not affect the validity of, or the force or effect of
the
requirement for, such adjustment. The Rights Agent shall be fully protected
in
relying on any such certificate and on any adjustment therein contained and
shall have no duty with respect to and shall not be deemed to have knowledge
of
any adjustment unless and until it shall have received such a
certificate.
Section
13. Consolidation,
Merger or Sale or Transfer of Assets or Earning Power.
(a) In
the event that, following the Stock Acquisition Date, directly or indirectly,
(x) the Company shall consolidate with, or merge with and into, any other Person
(other than a Subsidiary of the Company in a transaction which complies with
Section 11(o) hereof), and the Company shall not be the continuing or surviving
corporation of such consolidation or merger, (y) any Person (other than
a
Subsidiary of
the
Company in a transaction which complies with Section 11(o) hereof) shall
consolidate with, or merge with or into, the Company, and the Company shall
be
the continuing or surviving corporation of such consolidation or merger and,
in
connection with such consolidation or merger, all or part of the outstanding
shares of Common Stock shall be changed into or exchanged for stock or other
securities of any other Person or cash or any other property, or (z) the Company
shall sell or otherwise transfer (or one or more of its Subsidiaries shall
sell
or otherwise transfer), in one transaction or a series of related transactions,
assets or earning power aggregating more than 50% of the assets or earning
power
of the Company and its subsidiaries (taken as a whole) to any Person or Persons
(other than the Company or any Subsidiary of the Company in one or more
transactions each of which complies with Section 11(o) hereof) (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, except as provided in Section
7(e)
hereof, shall thereafter have the right to receive, upon the exercise thereof
at
the then current Purchase Price in accordance with the terms of this Agreement,
such number of validly authorized and issued, fully paid, non-assessable and
freely tradeable shares of Common Stock of the Principal Party (as such term
is
hereinafter defined), not subject to any liens, encumbrances, rights of first
refusal or other adverse claims, as shall equal the result obtained by dividing
the then current Purchase Price for each whole share of Common Stock issuable
pursuant to the exercise of the Rights immediately prior to the first occurrence
of a Section 13 Event (or, if a Section 11(a)(ii) Event has occurred prior
to
the first occurrence of a Section 13 Event, the then current Purchase Price
for
each whole share of Common Stock issuable pursuant to the exercise of the Rights
immediately prior to the first occurrence of a Section 11(a)(ii) Event) (which,
following the first occurrence of a Section 13 Event, shall be referred to
as
the “Purchase Price” for each Right and for all purposes of this Agreement), by
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; (ii) such Principal Party shall
thereafter be liable for, and shall assume, by virtue of such Section 13 Event,
all the obligations and duties of the Company pursuant to this Agreement; (iii)
the term “Company” shall thereafter be deemed to refer to such Principal Party,
it being specifically intended that the provisions of Section 11 hereof shall
apply to such Principal Party following the first occurrence of a Section 13
Event; (iv) such Principal Party shall take such steps (including, but not
limited to, the reservation of a sufficient number of shares of its Common
Stock) in connection with the consummation of any such transaction as may be
necessary to assure that the provisions hereof shall thereafter be applicable,
as nearly as reasonably may be, in relation to its shares of Common Stock
thereafter deliverable upon the exercise of the Rights; and (v) the provisions
of Section 1 l(a)(ii) hereof shall be of no effect following the first
occurrence of any Section 13 Event.
(b) “Principal
Party” shall mean:
(i) in
the case of any transaction described in clause (x) or (y) of the first sentence
of Section 13(a), (A) the Person that is the issuer of any securities into
which
shares of Common Stock of the Company are converted in such merger or
consolidation, or, if there is more than one such issuer, the issuer of shares
of Common Stock that has the highest aggregate Current Market Price (determined
pursuant to Section 11(d)) 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));
and
(ii) in
the
case of any transaction described in clause (z) of the first sentence of Section
13(a), the Person that is the party receiving the greatest portion of the assets
or earning power transferred pursuant to such transaction or transactions,
or,
if each Person that is a party to such transaction or transactions receives
the
same portion of the assets or earning power 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));
provided,
however, that in any such case, (1) if the Common Stock of such Person is not
at
such time and has not been continuously over the preceding twelve (12) month
period registered under Section 12 of the Exchange Act (“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; and (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 that 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 per share market price (determined pursuant to Section
11(d)); 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
has 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, as soon as practicable after the date of any consolidation,
merger, sale or transfer mentioned in paragraph (a) of this Section 13, the
Principal Party will:
(i) prepare
and file a registration statement, under the Act, with respect to the Rights
and
the securities purchasable upon exercise of the Rights on an appropriate form,
and will use its best efforts to cause such registration statement to (A) become
effective as soon as practicable after such filing and (B) remain effective
(with a prospectus at all times meeting the requirements of the Act) until
the
Expiration Date; and
(ii) deliver
to holders of the Rights historical financial statements for the Principal
Party
and each of its Affiliates which comply in all respects with the requirements
for registration on Form 10 under the Exchange Act.
The
provisions of this Section 13 shall similarly apply to successive mergers or
consolidations or sales or other transfers. In the event that a Section 13
Event
shall occur at any time after the occurrence of a Section 11(a)(ii) Event,
the
Rights which have not theretofore been exercised shall thereafter become
exercisable in the manner described in Section 13(a).
(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
Articles 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)) or securities exercisable for, or convertible into,
shares of 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 shares of 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.
Section
14. Fractional
Rights and Fractional Shares.
(a) The
Company shall not be required to issue fractional Rights, or to distribute
Rights Certificates which evidence fractional Rights. In lieu of such fractional
Rights, there shall be paid to the registered holders of the Rights Certificates
with regard to which such fractional Rights would otherwise be issuable, an
amount in cash equal to the same fraction of the current market value of a
whole
Right. For purposes of this Section 14(a), the current market value of a whole
Right shall be the closing price of the Rights for the Trading Day immediately
prior to the date on which such fractional Rights would have been otherwise
issuable. The closing price of the Rights for any day shall be the last sale
price, regular way, or, in case no such sale take place on such day, the average
of the closing bid and asked prices, regular way, in either case as reported
in
the principal consolidated transaction reporting system with respect to
securities listed or admitted to trading on the New York Stock Exchange or,
if
the Rights are not listed or admitted to trading on the New York Stock Exchange,
as reported in the principal consolidated transaction reporting system with
respect to securities listed on the principal national securities exchange
on
which the Rights are listed or admitted to trading, or if the Rights are not
listed or admitted to trading on any national securities exchange, the last
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 the Board
of
Directors of the Company. If on any such date no such market maker is making
a
market in the Rights the fair value of the Rights on such date as determined
in
good faith by the Board of Directors of the Company shall be used.
(b) The
Company shall not be required to issue fractional shares of Common Stock upon
exercise of the Rights or to distribute certificates which evidence fractional
shares of Common stock. In lieu of fractional shares equal to one-tenth of
one
share or less of Common Stock, the Company shall pay to the registered holders
of Rights Certificates at the time such Rights are exercised as herein an amount
in cash equal to the same fraction of the current market value of one share
of
Common Stock. Any exercise of Rights that would entitle the holder thereof
to
receive any fraction of a share greater than one-tenth of one share shall be
governed by Section 7(a) hereof. For purposes of this Section 14(b), the current
price of a share of Common Stock (as determined pursuant to Section 11(d) hereof
for the Trading Day immediately prior to the date of such exercise.
(c) Following
the occurrence of an Adjustment Event, the Company shall not be required to
issue fractional shares of Common Stock upon exercise of the Rights or to
distribute certificates which evidence fractional shares of Common Stock. In
lieu of fractional shares of Common Stock, the Company may pay to the registered
holders of Rights Certificates at the time such Rights are exercised as herein
provided an amount in cash equal to the same fraction of the current market
value of one-tenth of one share of Common Stock. For purposes of this Section
14(c) the current market value of one share of Common Stock shall be the closing
price of one share of Common Stock (as determined pursuant to Section 11(d)
hereof for the Trading Day immediately prior to the date of such
exercise).
(d) The
holder of a Right by the acceptance of the Rights expressly waives his right
to
receive any fractional Rights or any fractional shares upon exercise of a Right,
except as permitted by this Section 14.
(e) Whenever
a payment for fractional Rights or fractional shares is to be made by the Rights
Agent, the Company shall (i) promptly prepare and deliver to the Rights Agent
a
certificate setting forth in reasonable detail the facts related to such
payments and the prices and/or formulas used in calculating such payments,
and
(ii) provide sufficient monies to the Rights Agent in the form of fully
collected funds to make such payments. The Rights Agent shall be fully protected
in relying upon such a certificate and shall have no duty with respect to and
shall not be deemed to have knowledge of any payment for fractional Rights
or
fractional shares under this Section 14 unless and until it shall have received
such a certificate and sufficient monies.
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 the Common Stock); and any
registered holder of any Rights Certificate (or, prior to the Distribution
Date,
of the Common Stock), without the consent of the Rights Agent or of the holder
of any other Rights Certificate (or, prior to the Distribution Date, of the
Common Stock), may, in his own behalf and for his own benefit, enforce, and
may
institute and maintain any suit, action or proceeding against the Company to
enforce, or otherwise act in respect of, his right to exercise the Rights
evidenced by such Rights Certificate in the manner provided in such Rights
Certificate and in this Agreement. Without limiting the foregoing or any
remedies available to the holders of Rights, it is specifically acknowledged
that the holders of Rights would not have an adequate remedy at law for any
breach of this Agreement and shall be entitled to specific performance of the
obligations hereunder and injunctive relief against actual or threatened
violations of the obligations hereunder of any Person subject to this
Agreement.
Section
16. Agreement
of Rights Holders.
Every
holder of a Right by accepting the same consents and agrees with the Company
and
the Rights Agent and with every other holder of a Right that:
(a) prior
to the Distribution Date, the Rights will be transferable only in connection
with the transfer of Common Stock;
(b) after
the Distribution Date, the Rights certificates are transferable only on the
registry books of the Rights Agent if surrendered at the office or offices
of
the Rights Agent designated for such purposes duly endorsed or accompanied
by a
proper instrument of transfer and with the appropriate forms and certificates
fully executed;
(c) subject
to Section 6(a) and Section 7(e) hereof, the Company and the Rights Agent may
deem and treat the Person in whose name a Rights Certificate (or, prior to
the
Distribution Date, the associated Common Stock certificate) is registered as
the
absolute owner thereof and of the Rights evidenced thereby (notwithstanding
any
notations of ownership or writing on the Rights Certificates or the associated
Common Stock certificate made by anyone other than the Company or the Rights
Agent) for all purposes whatsoever, and neither the Company nor the Rights
Agent, subject to the last sentence of Section 7(e) hereof, shall be required
to
be affected by any notice to the contrary; and
(d) notwithstanding
anything in this Agreement to the contrary, neither the Company nor the Rights
Agent shall have any liability to any holder of a Right or other Person as
a
result of its inability to perform any of its obligations under this Agreement
by reason of any preliminary or permanent injunction or other order, decree,
judgment or ruling (whether interlocutory or final) 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
judgment or ruling lifted or otherwise overturned as soon as
possible.
Section
17. Rights
Certificate Holder Not Deemed a Stockholder.
No
holder, as such, of any Rights Certificate shall be entitled to vote, receive
dividends or be deemed for any purpose the holder of the number of any shares
Common Stock or any other securities of the Company which may at any time be
issuable on the exercise of the Rights represented thereby, nor shall anything
contained herein or in any Rights Certificate be construed to confer upon the
holder of any Rights Certificate, as such; any of the rights of a stockholder
of
the company or any right to vote for the election of directors or upon any
matter submitted to stockholders at any meeting thereof, or to give or withhold
consent to any corporate action, or to receive notice of meetings or other
actions affecting stockholders (except as provided in Section 26 hereof), or
to
receive dividends or subscription rights, or otherwise, until the Right or
Rights evidenced by such Rights Certificate shall have been exercised in
accordance with the provisions hereof.
Section
18. Concerning
the Rights Agent.
(a) The
Company agrees to pay to the Rights Agent reasonable compensation for all
services rendered by it hereunder and, from time to time, on demand of the
Rights Agent, its reasonable expenses and counsel fees and disbursements and
other disbursements incurred in the preparation, execution, delivery, amendment,
administration and execution of this Agreement and the exercise and performance
of its duties hereunder. The Company also agrees to indemnify the Rights Agent
for, and to hold it harmless against, any loss, liability, damage, judgment,
fine, penalty, claim, demand, settlement, cost or expense, incurred without
gross negligence, bad faith or willful misconduct on the part of the Rights
Agent, for any action taken, suffered or omitted by the Rights Agent in
connection with the acceptance and administration of this Agreement, including
without limitation the costs and expenses of defending against any claim of
liability in the premises.
(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 the acceptance
and administration of this Agreement in reliance upon any Rights Certificate
or
certificate for Common Stock or for other securities of the Company, instrument
of assignment or transfer, power of attorney, endorsement, affidavit, letter,
notice, direction, consent, certificate, statement or other paper or documents
believed by it to be genuine and to be 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
Person into which the Rights Agent or any successor Rights Agent may be merged
or with which it may be consolidated, or any Person resulting from any merger
or
consolidation to which the Rights Agent or any successor Rights Agent shall
be a
party, or any Person succeeding to the shareholder services business of the
Rights Agent or any successor Right Agent, shall be the successor to the Rights
Agent under this Agreement without this execution or filing of any paper or
any
further act on the part of any of the parties hereto, provided,
however, that such Person 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 only the duties and obligations expressly 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 advice or opinion of such counsel shall be full and complete
authorization and protection to the Rights Agent, and the Rights Agent shall
incur no liability for or in respect of, any action taken, suffered or omitted
by it in good faith and in accordance with such advice or 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,
suffering or omitting any action hereunder, such fact or matter (unless other
evidence in respect thereof be herein specifically prescribed) may be deemed
to
be conclusively proved and established by a certificate signed by the Chief
Executive officer, the President, any Vice President, the Treasurer, any
Assistant Treasurer, the Secretary or any Assistant Secretary of the Company
and
delivered to the Rights Agent; and such certificate shall be full authorization
and protection to the Rights Agent for, and the Rights Agent shall incur no
liability for or in respect of, any action taken, suffered or omitted in good
faith by it under the provisions of this Agreement in reliance upon such
certificate.
(c) The
Rights Agent shall be liable hereunder only for its own gross negligence, bad
faith or willful misconduct.
(d) The
Rights Agent shall not be liable for or by reason of any of the statements
of
fact or recitals contained in this Agreement or in the Rights Certificates
or be
required to verify the same (except as to its countersignature on such Rights
Certificates), but all such statements and recitals are and shall be deemed
to
have been made by the Company only.
(e) The
Rights Agent shall not be under any liability or responsibility in respect
of
the validity of this Agreement or the execution and delivery hereof (except
the
due execution hereof by the Rights Agent) or in respect of the validity or
execution of any Rights Certificate (except its countersignature thereof);
nor
shall it be responsible for any breach by the Company of any covenant or
condition contained in this Agreement or in any Rights Certificate; nor shall
it
be responsible for any adjustment required under the provisions of Section
11 or
Section 13 hereof or responsible for the manner, method or amount of any such
adjustment or the ascertaining of the existence of facts that would require
any
such adjustment (except with respect to the exercise of Rights evidenced by
Rights Certificates after receipt of the certificate described in Section 12
hereof setting forth any such adjustment); nor shall it by any act hereunder
be
deemed to make any representation or warranty as to the authorization of
reservation of any shares of Common Stock to be issued pursuant to this
Agreement or any Rights Certificate or as to whether any shares of Common Stock
will, when so issued, be validly authorized and issued, fully paid and
non-assessable.
(f) The
Company agrees that it will perform, execute, acknowledge and deliver or cause
to be performed, executed, acknowledged and delivered all such further and
other
acts, instruments and assurances as may reasonably be required by the Rights
Agent for the carrying out or performing by the Rights Agent of the provisions
of this Agreement.
(g) The
Rights Agent is hereby authorized and directed to accept instructions with
respect to the performance of its duties hereunder from the Chief Executive
Officer, the President, any Vice President, the Secretary, any Assistant
Secretary, the Treasurer or any Assistant Treasurer of the Company, and to
apply
to such officers for advice or instructions in connection with its duties,
and
such instructions shall be full authorization and protection to the Rights
Agent
and the Rights Agent shall incur no liability for or in respect of any action
taken, suffered, or omitted by it in good faith in accordance with instructions
of any such officer. The Rights Agent may conclusively rely on the most recent
instructions given by any such officer.
(h) The
Rights Agent and any stockholder, affiliate, director, officer or employee
of
the Rights Agent may buy, sell or deal in any of the Rights or other securities
of the Company or become pecuniarily interested in any transaction in which
the
Company may be interested, or contract with or lend money to the Company or
otherwise act as fully and freely as though it were not Rights Agent under
this
Agreement. Nothing herein shall preclude the Rights Agent from acting in any
other capacity for the Company or for any other Person or legal
entity.
(i) The
Rights Agent may execute and exercise any of the rights or powers hereby vested
in it or perform any duty hereunder either itself or by or through its attorneys
or agents, and the Rights Agent shall not be answerable or accountable for
any
act, default, neglect or misconduct of any such attorneys or agents or for
any
loss to the Company or any other Person resulting from any such act, default,
neglect or misconduct, absent gross negligence, bad faith or willful misconduct
in the selection and continued employment thereof.
(j) No
provision of this Agreement shall require the Rights Agent to expend or risk
its
own funds or otherwise incur any financial liability in the performance of
any
of its duties hereunder or in the exercise of its rights if it in good faith
believes that repayment of such funds or adequate indemnification against such
risk or liability is not reasonably assured to it.
(k) If,
with respect to any Rights Certificate surrendered to the Rights Agent for
exercise or transfer, the certificate attached to the Form of Assignment or
Form
of Election to Purchase, as the case may be, has either not been completed
or
indicates an affirmative response to clause 1 and/or 2 thereof, the Rights
Agent
shall not take any further action with respect to such requested exercise of
transfer without first consulting with the Company.
(l) In
no event shall the Rights Agent be liable for special, indirect or consequential
loss or damage of any kind whatsoever (including without limitation lost
profits), even if the Rights Agent has been advised of the likelihood of such
loss or damage and regardless of the form of action.
Section
21. Change
of Rights Agent.
The
Rights Agent or any successor Rights Agent may resign and be discharged from
its
duties under this Agreement upon thirty (30) days’ notice in writing mailed to
the Company, and to the transfer agent of the 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 (30) days’ notice in writing, mailed to the Rights Agent or successor
Rights Agent, as the case may be, and to the transfer agent of the 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 (30) days after giving notice of such removal or after it
has
been notified in writing of such resignation or incapacity by the resigning
or
incapacitated Rights Agent or by the holder of the 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 Person or association organized and doing business under the
laws
of the United States or of any state of the United States as long as such Person
is authorized to do business in any state of the United States, in good
standing, and having an office in any state of the United States, which is
subject to supervision or examination by federal or state Authority and which
has at the time of its appointment as Rights Agent a combined capital and
surplus of at least $50,000,000 or (b) an affiliate of a corporation described
in clause (a) of this sentence. After appointment, the successor Rights Agent
shall be vested with the same powers, rights, duties and responsibilities as
if
it had been originally named as Rights Agent without further act or dead; 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 the transfer agent
of
the 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, as the case may be.
Section
22. Issuance
of New Rights Certificates.
Notwithstanding
any of the provisions of this Agreement or of the Rights to the contrary, the
Company may, at its option, issue new Rights Certificates evidencing Rights
in
such form as may be approved by its Board of Directors to reflect any adjustment
or change in the Purchase Price and the number or kind or class of shares or
other securities or property purchasable under the Rights Certificates made
in
accordance with the provisions of this Agreement. In addition, in connection
with the issuance or sale of shares of Common Stock following the Distribution
Date and prior to the redemption or expiration of the Rights, the Company (a)
shall, with respect to shares of Common Stock so issued or sold pursuant to
the
exercise of stock options or under any employee plan or arrangement, or upon
the
exercise, conversion or exchange of securities hereinafter issued by the
Company, and (b) may, in any other case, if deemed necessary or appropriate
by
the Board of Directors of the Company, issue Rights Certificates representing
the appropriate number of Rights in connection with such issuance or sale;
provided,
however,
that (i) no such Rights Certificate shall be issued if, and to the extent that,
the Company shall be advised by counsel that such issuance would create a
significant risk of material adverse tax consequences to the Company or the
person to whom such Rights Certificate would be issued or would create a
significant risk of or result in such options’ or employee plans’ or
arrangements’ failing to qualify for otherwise available special tax treatment,
and (ii) no such Rights Certificate shall be issued if, and to the extent that,
appropriate adjustment shall otherwise have been made in lieu of the issuance
thereof.
Section
23. Redemption
and Termination.
(a) (i)
The
Board of Directors of the Company may, at its option, at any time prior to
the
earliest of (1) the Close of Business on the tenth Business Day following the
Stock Acquisition Date (or if the Stock Acquisition Date shall have occurred
prior to the Record Date, the Close of Business on the tenth Business Day
following the Record Date), (2) such time on or after the Stock Acquisition
Date
as there shall have occurred a Change in Control or (3) the Close of Business
on
the Final Expiration Date, redeem all but not less than all the then outstanding
Rights at a redemption price of $.01 per Right, as such amount may be
appropriately adjusted to reflect any stock split, stock dividend or similar
transaction occurring after the date hereof (such redemption price being
hereinafter referred to as the “Redemption Price”).
(ii) “Change
of Control” shall mean:
(1) The
acquisition (other than from the Company) by any Person (excluding, for this
purpose, (i) the Company, (ii) any Subsidiary of the Company, (iii) any employee
benefit plan of the Company or of any Subsidiary of the Company, or any person
or entity organized, appointed or established by the Company for or pursuant
to
the terms of any such plan or (iv) the Approved Group) of beneficial ownership
of 50% or more of either the then outstanding shares of Common Stock or the
combined voting power of the Company’s then outstanding voting securities
entitled to vote generally in the election of directors; or
(2) Approval
by the stockholders of the Company, of a reorganization, merger consolidation,
in each case, with respect to which persons who were the stockholders of the
Company immediately prior to such reorganization, merger or consolidation do
not, immediately thereafter, own more than 50% of the combined voting power
entitled to vote generally in the election of directors of the reorganized,
merged or consolidated company’s then outstanding voting securities, or a
liquidation or dissolution of the Company or of the sale of all or substantially
all of the assets of the Company.
(b) In
addition, the Board of Directors of the Company may, with notice to the Rights
Agent, reinstate the right of redemption if, following the occurrence of a
Stock
Acquisition Date and following the expiration of the right of redemption
hereunder but prior to any Adjustment Event, (i) a Person who is an Acquiring
Person shall have transferred or otherwise disposed of a number of shares of
Common Stock in one transaction or a series of transactions, not directly or
indirectly involving the Company or any of its Subsidiaries, which did not
result in the occurrence of an Adjustment Event such that such Person is
thereafter a Beneficial Owner of less than 10% of the outstanding shares of
Common Stock, and (ii) there are no other Persons, immediately following the
occurrence of the event described in clause (i) who are Acquiring Persons.
Upon
the occurrence of the foregoing, the right of redemption shall be reinstated
and
thereafter be subject to the provisions of this Section 23.
(c) Notwithstanding
the foregoing, if the Board of Directors approves a transaction that would
constitute a Section 13 Event involving the Company and a Person or entity,
other than an Acquiring Person or Offering Person, then the right of redemption
shall be reinstated and may be exercised by the Board of Directors of the
Company, at its option, at any time following such approval.
(d) Notwithstanding
anything contained in this Agreement to the contrary, the Rights shall not
be
exercisable after the first occurrence of an event described in Section
11(a)(ii) until such time as the Company’s right of redemption hereunder has
expired. The Company may, at its option, pay the Redemption Price in cash,
shares of Common Stock (based on the “Current Market Price,” as defined in
Section 11(d) hereof, of the Common Stock at the time of redemption) or any
other form of consideration deemed appropriate by the Board of
Directors.
(e) Immediately
upon the action of the Board of Directors of the Company ordering the redemption
of the Rights without any further action and without any notice, the right
to
exercise the Rights will terminate and the only right thereafter of the holder
of Rights shall be to receive the Redemption Price for each Right so held.
Promptly after the action of the Board of Directors ordering the redemption
of
the Rights, the Company shall give notice of such redemption to the Rights
Agent
and the holders of the then outstanding Rights by (in the case of notice to
holders) mailing such notice to all such holders at each holder’s last address
as it appears upon the registry books of the transfer agent for the Common
Stock; provided,
however, that the failure to give, or any defect in, any such notice shall
not
affect the validity of such redemption. 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. Exchange.
(a)
The
Board of Directors of the Company may, at its option, at any time after any
Person becomes an Acquiring Person, exchange all or part of the then outstanding
and exercisable Rights (which shall not include Rights that have become null
and
void pursuant to the provisions of Section 7(e) hereof) for shares of Common
Stock at an exchange ratio of one share of Common Stock per Right, appropriately
adjusted to reflect any stock split, stock dividend or similar transaction
occurring after the date hereof (such exchange ratio being hereinafter referred
to as the “Exchange Ratio”). Notwithstanding the foregoing, the Company’s Board
of Directors shall not be empowered to effect such exchange at any time after
any Person (other than the Company, any Subsidiary of the Company, any employee
benefit plan of the Company or any such Subsidiary, or any Person organized,
appointed or established by the Company for or pursuant to the terms of any
such
plan), together with all Affiliates and Associates of such Person, becomes
the
Beneficial Owner of more than 50% of the Common Stock then
outstanding.
(b) Immediately
upon the action of the Board of Directors of the Company ordering the exchange
of any Rights pursuant to subsection (a) of this Section 24 and without any
further action and without any notice, the right to exercise such Rights shall
terminate and the only right thereafter of the holders of such Rights shall
be
to receive that number of shares of Common Stock equal to the number of such
Rights held by such holder multiplied by the Exchange Ratio. The Company shall
promptly give public notice and notice to the Rights Agent 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 will state
the
method by which the exchange of the Common Stock for Rights will be effected
and, in the event of any partial exchange, the number of Rights which will
be
exchanged. Any partial exchange shall be effected pro rata based on the number
of Rights (other than Rights which have become void pursuant to the provisions
of Section 7(e) hereof) held by each holder of Rights.
(c) In
any
exchange pursuant to this Section 24, the Company, at its option, may substitute
common stock equivalents (as such term is defined in Section 11(a)(iii) hereof)
for some or all of the shares of Common Stock exchangeable for
Rights.
(d) In
the
event that there shall not be sufficient shares of Common Stock or common stock
equivalents issued but not outstanding or authorized but unissued to permit
any
exchange of Rights as contemplated in accordance with this Section 24, the
Company shall take all such action as may be necessary to authorize additional
Common Stock or Common Stock Equivalents for issuance upon exchange of the
Rights.
(e) The
Company shall not be required to issue fractional shares of Common Stock or
to
distribute certificates which evidence fractional shares of Common Stock. In
lieu of such fractional Common Stock, the Company shall pay to the registered
holders of the Rights Certificates with regard to which such fractional Common
Stock would otherwise be issued an amount in cash equal to the same fraction
of
the current market value of one share of Common Stock. For the purposes of
this
paragraph (e), the current market value of a whole share of Common Stock shall
be the closing price of a share of Common Stock (as determined pursuant to
the
second sentence of Section 11 (d) hereof) for the Trading Day immediately prior
to the date of exchange pursuant to this Section 24.
Section
25. Transition
from Prior Rights Agreement.
Notwithstanding
anything in this Agreement to the contrary, if prior to the Close of Business
on
March 1, 1999, a “Distribution Date” shall have occurred under the Prior Rights
Agreement and the Prior Rights shall not have been redeemed pursuant to Section
23 of the Prior Rights Agreement and the Board of Directors shall not have
exchanged the Prior Rights pursuant to Section 24 of the Prior Rights Agreement,
then (i) the Rights shall be distributed to holders of the Prior Rights
effective at the Close of Business on the Rights Dividend Declaration Date
(without giving effect to the expiration of the Prior Rights at such date)
who
have not effectively exercised such Prior Rights, provided
that
no
Person shall be entitled to receive Rights (or, if such Rights are received,
to
exercise Rights) to the extent that a transaction has occurred which would
cause
the Prior Rights held by such Person to be null and void or not exercisable
pursuant to Section 7(e) of the Prior Rights Agreement.
If,
within the meaning of the Prior Rights Agreement, prior to the expiration of
the
Prior Rights (i) any Person shall become an “Acquiring Person,” (ii) a
“Distribution Date” shall have occurred or (iii) an “Adjustment Event” or other
event shall have occurred which would, under the terms of the Prior Rights
Agreement, with the passage of time, have given rise to the occurrence of a
“Distribution Date” under the Prior Agreement but for the expiration of the
Prior Rights Agreement, then the Company and the Rights Agent shall, if the
Company so directs, supplement or amend the provisions of this Agreement
(including this Section 25) without the approval of the holders of the Common
Stock or the Prior Rights, in such manner as the Board of Directors of the
Company shall in its sole discretion see fit to adjust the provisions of the
Rights to provide and preserve the benefits to the holders of the Rights
contemplated by this Agreement and the benefits to the holders of the Prior
Rights contemplated by the Prior Rights Agreement, in the light of the
circumstances prevailing at the time.
Section
26. 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 Common Stock
or
to make any other distribution to the holders of Common Stock (other than a
regular quarterly cash dividend out of earnings or retained earnings of the
Company), or (ii) to offer to holders of Common Stock rights or warrants to
subscribe for or to purchase any additional shares of Common Stock or shares
of
stock of any class or any other securities, rights or options, or (iii) to
effect any reclassification of its Common Stock (other than a reclassification
involving only the subdivision of outstanding shares of Common Stock), or (iv)
to effect any consolidation or merger into or with any other Person other than
a
Subsidiary of the Company in a transaction which complies with Section 11 (b)
hereof, or to effect any sale or other transfer (or to permit one or more of
its
Subsidiaries to effect any sale or other transfer), in one transaction or a
series of related transactions, of more than 50% of the assets or earning power
of the Company and its Subsidiaries (taken as a whole) to any other person
or
Persons (other than the Company and/or any of its Subsidiaries in one or more
transactions each of which complies with Section 11 (o) hereof), or (v) to
effect the liquidation, dissolution or winding up of the Company, then, in
each
such case, the Company shall give to the Rights Agent and to each holder of
a
Rights Certificate in accordance with Section 27 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 Common 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 Common Stock for purposes of such other
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 of the date of
participation therein by the holders of the shares of Common Stock which ever
shall be the earlier.
(b) In
case any of the events set forth in Section 11(a)(ii) hereof shall occur, then,
in any such case, (i) the Company shall as soon as practicable thereafter give
to each holder of the Rights Certificate, to the extent feasible and in
accordance with Section 27 hereof a notice of the occurrence of such event,
which shall specify the event and the consequences of the event to holders
of
Rights under Section 11(a)(ii) hereof.
Section
27. Notices.
Notices
or demands authorized by this Agreement to be given or made by the Rights Agent
or by the holder of any Rights Certificate to or on the Company shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed (until another address is filed in writing with the Rights Agent)
as
follows:
Longview
Fibre Company
▇▇▇
▇▇▇▇▇
▇▇▇, ▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Corporate Secretary
Subject
to the provisions of Section 21, any notice of demand authorized by this
Agreement to be given or made by the Company or by the holder of any Rights
Certificate to or on the Rights Agent shall be sufficiently given or made if
sent by first-class mail, postage prepaid, addressed (until another address
is
filed in writing with the Company) as follows:
ChaseMellon
Shareholder Services, L.L.C.
▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
General
Counsel
Notices
or demands authorized by this Agreement to be given or made by the Company
or
the Rights Agent to the holder of any Rights Certificate (or, if prior to the
Distribution Date, to the holder of certificates representing shares of Common
Stock) shall be sufficiently given or made if sent by first-class mail, postage
pre-paid, addressed to such holder at the address of such holder as shown on
the
registry books of the Company.
Section
28. Supplements
and Amendments.
Prior
to
the Distribution Date and subject to the penultimate sentence of this Section
28, the Company and the Rights Agent shall, if the Company so directs,
supplement or amend any provision of this Agreement without the approval of
any
holders of certificates representing shares of Common Stock. From and after
the
Distribution Date and subject to the penultimate sentence of this Section 28,
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 any such Person); provided,
this
Agreement may not be supplemented or amended to lengthen, pursuant to clause
(iii) of this sentence, (A) a time period relating to when the Rights may be
redeemed at such time as the Rights are not then redeemable, or (B) any other
time period unless such lengthening is for the purpose of protecting, enhancing
or clarifying the rights of, and/or the benefits to, the holders of Rights
and
further provided
that
such
supplement or amendment does not change or increase the Right Agent’s duties or
obligations. Upon the delivery of a certificate from an appropriate officer
of
the Company which states that the proposed supplement or amendment is in
compliance with the terms of this Section 28, and, if requested by the Rights
Agent, an opinion of counsel, the Rights Agent shall execute such supplement
or
amendment. Notwithstanding anything contained in this Agreement to the contrary,
no supplement or amendment shall be made after the Rights Dividend Declaration
Date which changes the Redemption Price, the Purchase Price or the number of
shares of Common Stock for which a Right is exercisable, or which changes the
Final Expiration Date to a date before the Close of Business on March 1, 2009.
Prior to the Distribution Date, the interests of the holders of Rights shall
be
deemed coincident with the Interests of the holders of Common
Stock.
Section
29. 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
30. Determinations
and Actions by the Board of Directors, etc.
For
all
purposes of this Agreement, any calculation of the number of shares of Common
Stock outstanding at any particular time, including for purposes of determining
the particular percentage of such outstanding shares of Common Stock of which
any Person is the Beneficial Owner, shall be made in accordance with the last
sentence of Rule 13d-3(d)(1)(i) of the General Rules and Regulations under
the
Exchange Act. The Board of Directors of the Company (or, as set forth herein,
certain specified members thereof) shall have the power and authority to
administer this Agreement and to exercise all rights and powers specifically
granted to the Board of Directors of the Company or to the Company, or as may
be
necessary or advisable in the administration of this Agreement, including,
without limitation, the right and power to (i) interpret the provisions of
this
Agreement, and (ii) make all determinations deemed necessary or advisable for
the administration of this Agreement (including, but not limited to, a
determination to redeem or not redeem the Rights or to amend 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 of the Company in good faith,
shall (x) be final, conclusive and binding on the Company, the Rights Agent,
the
holders of the Rights and (y) not subject the Board to any liability to the
holders of the Rights. The Rights Agent may assume that the Company’s Board of
Directors acted in good faith in respect of all such calculations,
interpretations and determinations performed under this Section 30.
Section
31. 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 Certificate
(and, prior to the Distribution Date, registered holders of the Common Stock)
any legal or equitable right, remedy or claim under this Agreement; but this
Agreement shall be for the sole and exclusive benefit of the Company, the Rights
Agent and the registered holders of the Rights Certificates (and, prior to
the
Distribution Date, registered holders of the Common Stock).
Section
32. Severability.
If
any
term, provision, covenant or restriction of this Agreement is held by a court
of
competent jurisdiction or other authority to be invalid, void or unenforceable,
the remainder of the terms, provisions, covenants and restrictions of this
Agreement shall remain in full force and effect and shall in no way be affected,
impaired or invalidated; provided,
however, that notwithstanding anything in this Agreement to the contrary, if
any
such term, provision, covenant or restriction is held by such court or authority
to be invalid, void or unenforceable and the Board of Directors of the Company
determines in its good faith judgment that severing the invalid language from
this Agreement would adversely affect the purpose or effect of this Agreement,
the right of redemption set forth in Section 23 hereof shall be reinstated,
with
notice to Rights Agent, and shall not expire until the Close of Business on
the
twentieth day following the date of such determination by the Board of Directors
of the Company.
Section
33. Governing
Law.
This
Agreement, each Right and each Rights Certificate issued hereunder shall be
deemed to be a contract made under the laws of the State of Washington and
for
all purposes shall be governed by and construed in accordance with the laws
of
such State applicable to contracts made and to be performed entirely within
such
State; except that all provisions regarding the rights, duties and obligations
of the Rights Agent shall be governed by and construed in accordance with the
laws of the State of New York applicable to the contracts made and to be
performed entirely within such state.
Section
34. Counterparts.
This
Agreement may be executed in any number of counterparts and each of such
counterparts shall for all purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same
instrument.
Section
35. Descriptive
Headings.
Descriptive
headings of the several Sections of this Agreement are inserted for convenience
only and shall not control or affect the meaning or construction of any of
the
provisions hereof.
--
IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
and
their respective corporate seals to be hereunto affixed and attested, all as
of
the day and year first above written.
LONGVIEW
FIBRE COMPANY
/s/
▇.
▇. ▇▇▇▇▇▇▇▇
Name:
▇.
▇.
▇▇▇▇▇▇▇▇
Title:
Senior
Vice President - Finance
CHASEMELLON
SHAREHOLDER SERVICES, L.L.C.
Name:
Title:
IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
and
their respective corporate seals to be hereunto affixed and attested, all as
of
the day and year first above written.
LONGVIEW
FIBRE COMPANY
Name:
Title:
CHASEMELLON
SHAREHOLDER SERVICES, L.L.C.
/s/
▇▇▇ ▇▇▇▇
Name:
▇▇▇
▇▇▇▇
Title:
ASSISTANT
VICE PRESIDENT
Exhibit
A
(Form
of
Rights Certificate)
Certificate
No. R- ___________
Rights
NOT
EXERCISABLE AFTER MARCH 1, 2009 OR EARLIER IF REDEEMED OR EXCHANGED BY THE
COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY,
AT
$.01 PER RIGHT AND TO EXCHANGE ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT.
UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON
(AS SUCH TERM IS DEFINED IN THE RIGHTS AGREEMENT) AND ANY SUBSEQUENT HOLDER
OF
SUCH RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS REPRESENTED BY THIS RIGHTS
CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN
ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH
TERMS ARE DEFINED IN THE RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHTS CERTIFICATE
AND THE RIGHTS REPRESENTED HEREBY MAY BECOME NULL AND VOID IN THE CIRCUMSTANCES
SPECIFIED IN SECTION 7(e) OF SUCH AGREEMENT.]*
*The
portion of the legend in brackets shall be inserted only if
applicable.
Rights
Certificate
LONGVIEW
FIBRE COMPANY
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 March 1, 1999
(the “Rights Agreement”), between Longview Fibre Company, a Washington
corporation (the “Company”), and ChaseMellon Shareholder Securities, L.L.C. (the
“Rights Agent”), to purchase from the Company at any time after the Distribution
Date (as such term is defined in the Rights Agreement) and prior to 5:00 P.M.
(New York City time) on March 1, 2009 at the office or offices of the Rights
Agent designated for such purpose, or its successors as Rights Agent, one-tenth
of one fully paid, non-assessable share of Common Stock of the Company (the
“Common Stock”), at a purchase price of $50 per whole share of Common Stock (the
“Purchase Price”) (equivalent to $5 for each one-tenth of one share) upon
presentation and surrender of this Rights Certificate with the Form of Election
to Purchase and related Certificate duly executed. The number of Rights
evidenced by this Rights Certificate (and the number of shares of Common Stock
which may be purchased upon exercise hereof) set forth above, and the Purchase
Price per share set forth above, are the number and Purchase Price as of March
1, 1999, based on the Common Stock as constituted at such date.
Upon
the
occurrence of a Section 11(a)(ii) Event (as such term is defined in the Rights
Agreement), if the Rights evidenced by this Rights Certificate are beneficially
owned by (i) an Acquiring Person or an Affiliate or Associate of any such Person
(as such terms are defined in the Rights Agreement) (ii) a transferee of any
such Acquiring Person, Associate or Affiliate, or (iii) under certain
circumstances specified in the Rights Agreement, a transferee of a person:
who,
after such transfer, become an Acquiring Person, or an Affiliate or Associate
of
any such Person, such Rights shall automatically become null and void and no
holder hereof shall have any right with respect to such Rights from and after
the occurrence of such Section 11(a)(ii) Event.
As
provided in the Rights Agreement, the Purchase Price and the number and kind
of
shares of Common Stock or other securities, which may be purchased upon the
exercise of the Rights evidenced by this Rights Certificate are subject to
modification and adjustment upon the happening of certain events, including
Adjustment Events (as such term is defined in the Rights
Agreement).
In
the
circumstances described in Section 13 of the Rights Agreement, the securities
issuable upon the exercise of the Rights evidenced hereby shall be the Common
Stock or similar equity securities or equity interests of an entity other than
the Company.
This
Rights Certificate is subject to all of the terms, provisions and conditions
of
the Rights Agreement, which terms, provisions and conditions are hereby
incorporated herein by reference and made a part hereof and to which Rights
Agreement reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities hereunder of the
Rights Agent, the Company and the holders of the Rights Certificates, which
limitations of rights include the temporary suspension of the exercisability
of
such Rights under the specific circumstances set forth in the Rights Agreement.
Copies of the Rights Agreement are on file at the office of the Company and
are
also available upon written request to the Company.
The
Rights Certificate, with or without other Rights Certificates, upon surrender
at
the office or offices of the Rights Agent designated for such purpose, may
be
exchanged for another Rights Certificate or Rights Certificates of like tenor
and date evidencing Rights entitling the holder to purchase a like aggregate
number of shares of Common Stock as the Rights evidenced by the Rights
Certificate or Rights Certificates surrendered shall have entitled such holder
to purchase. If this Rights Certificate shall be exercised in part, the holder
shall be entitled to receive upon surrender hereof another Rights Certificate
or
Rights Certificates for the number of whole Rights not exercised.
Subject
to the provisions of the Rights Agreement, the Rights evidenced by this
Certificate may be redeemed by the Company at its option at a redemption price
of $.0l per Right or may be exchanged in whole or in part for shares of Common
Stock.
No
fractional shares of Common Stock will be issued upon the exercise of any Right
or Rights evidenced hereby, but in lieu thereof a cash payment will be made,
as
provided in the Rights Agreement. No Rights may be exercised that would entitle
the holder to any fractional share of Common Stock greater than one-tenth of
one
share unless concurrently therewith such holder purchases an additional fraction
of a share of Common Stock which, when added to the number of shares of Common
Stock to be received upon such exercise, equals an integral number of shares
of
Common Stock, as provided in the Rights Agreement.
No
holder
of this Rights Certificate, as such, shall be entitled to vote or receive
dividends or be deemed for any purpose the holder of shares of Common Stock
or
of any other securities of the Company which may at any time be issuable on
the
exercise hereof, nor shall anything contained in the Rights Agreement or herein
be construed to confer upon the holder hereof, as such, any of the rights of
a
stockholder of the Company or any right to vote for the election of directors
or
upon any matter submitted to stockholders at any meeting thereof, or to give
or
withhold consent to any corporate action, or, to receive notice of meetings
or
other actions affecting stockholders (except as provided in the Rights
Agreement), or to receive dividends or subscription rights, or otherwise, until
the Right or Rights evidenced by this Rights Certificate shall have been
exercised as provided in the Rights Agreement.
This
Rights Certificate shall not be valid or obligatory for any purpose until it
shall have been countersigned by the Rights Agent.
WITNESS
the facsimile signature of the proper officers of the Company and its corporate
seal.
Dated
as
of ,
ATTEST: LONGVIEW
FIBRE COMPANY
By
Name: Name:
Title: Title:
Countersigned:
CHASEMELLON
SHAREHOLDER
SERVICES,
L.L.C., as Rights Agent
By
Name:
Title:
--
(Form
of
Reverse Side of Rights Certificate)
FORM
OF ASSIGNMENT
(To
be
executed by the registered holder if such
holder
desires to transfer the Rights Certificate.)
FOR
VALUE
RECEIVED
hereby
sells, assigns and transfers unto
(Please
print name and address of transferee)
this
Rights Certificate, together with all right, title and interest therein, and
does hereby irrevocably constitute and appoint Attorney,
to transfer the within Rights Certificate on the books of the within-named
Company, with full power of substitution.
Date:
,
.
Signature
Signature
Guaranteed:
Signatures
must be guaranteed by a member firm of a national securities exchange, a member
of the National Association of Securities Dealers, Inc., commercial bank or
trust company having an office or correspondent in the United States or another
eligible guarantor institution (as defined pursuant to Rule 17Ad-15 under the
Securities Exchange Act of 1934, as amended).
Certificate
The
undersigned hereby certifies by checking the appropriate boxes
that:
(1) this
Rights Certificate [ ] is [ ] is not being sold, assigned and transferred by
or
on behalf of a Person who is or was an Acquiring Person or an Affiliate or
Associate of any such Person (as such terms are defined in the Rights
Agreement);
--
(2) after
due
inquiry and to the best knowledge of the undersigned, it [ ] did [ ] did not
acquire the Rights evidenced by this Rights Certificate from any Person who
is,
was or subsequently became an Acquiring Person or an Affiliate or Associate
of
any such Person.
Date:
,
.
Signature
Signature
Guaranteed:
NOTICE
The
signature to the foregoing Assignment and Certificate must correspond to the
name as written upon the face of this Rights Certificate in every particular,
without alteration or enlargement or any change whatsoever.
--
(Form
of
Reverse Side of Rights Certificate - continued)
FORM
OF ELECTION TO PURCHASE
(To
be
executed if holder desires to
exercise
Rights represented by the Rights Certificate.)
To
Longview Fibre Company:
The
undersigned hereby irrevocably elects to exercise Rights
represented
by this Rights Certificate to purchase the shares of Common Stock issuable
upon
the
exercise
of the 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 and delivered to:
Please
insert social security
or
other
identifying number
(Please
print name and address)
If
the
number of Rights being exercised hereunder would entitle the undersigned to
receive any fraction of a share of Common Stock greater than one-tenth of one
share, the undersigned is concurrently herewith purchasing an additional
fraction of a share of Common Stock which, when added to the number of shares
of
Common Stock issuable upon the exercise of such Rights, equals an integral
number of shares of Common Stock.
If
such
number of Rights shall not be all the Rights evidenced by this Rights
Certificate, a new Rights Certificate for the balance of such Rights shall
be
registered in the name of and delivered to:
Please
insert social security
or
other
identifying number
(Please
print name and address)
--
Date:
,
.
Signature
Signature
Guaranteed:
Signatures
must be guaranteed by a member firm of a national securities exchange, a member
of the National Association of Securities Dealers, Inc., commercial bank or
trust company having an office or correspondent in the United States or another
eligible guarantor institution (as defined pursuant to Rule 17Ad-15 under the
Securities Exchange Act of 1934, as amended).
Certificate
The
undersigned hereby certifies by checking the appropriate boxes
that:
(1) the
Rights evidenced by this Rights Certificate [ ] are [ ] are not being exercised
by or on behalf of a Person who is or was an Acquiring Person or an Affiliate
or
Associate of any such Person (as such terms are defined in the Rights
Agreement);
(2) after
due
inquiry and to the best knowledge of the undersigned, it [ ] did [ ] did not
acquire the Rights evidenced by this Rights Certificate from any Person who
is,
was or became an Acquiring Person or an Affiliate or Associate of any such
Person.
Date:
,
.
Signature
Signature
Guaranteed:
NOTICE
The
signature to the foregoing Election to Purchase and Certificate must correspond
to the name as written upon the face of this Rights Certificate in every
particular, without alteration or enlargement or any change
whatsoever.
--
Exhibit
B
LONGVIEW
FIBRE COMPANY
SUMMARY
OF RIGHTS TO PURCHASE
COMMON
STOCK
On
January 26, 1999, the Board of Directors of Longview Fibre Company (the
“Company”) declared a dividend distribution of one common share purchase right
(a “Right”) for each outstanding share of common stock of the Company (the
“Common Stock”) to stockholders of record at the close of business on March 1,
1999 (the “Record Date”). Each Right entitles the registered holder to purchase
from the Company one-tenth of one share of Common Stock, at a purchase price
of
$50 per share of Common Stock (the “Purchase Price”, equivalent to $5 for each
one-tenth of one share), subject to adjustment. The description and terms of
the
Rights are set forth in a Rights Agreement (the “Rights Agreement”) between the
Company and ChaseMellon Shareholder Services, L.L.C., as Rights
Agent.
Initially,
the Rights will be attached to all Common Stock certificates representing shares
then outstanding, and no separate Rights Certificates will be distributed.
The
Rights will separate from the Common Stock and a Distribution Date will occur
upon the earlier of (i) the first date of public announcement that a person
or
group of affiliated or associated persons (an “Acquiring Person”) has acquired,
or obtained the right to acquire, beneficial ownership of 10% or more of the
outstanding shares of Common Stock (the “Stock Acquisition Date”) or (ii) ten
business days following the commencement of a tender offer or exchange offer
that would result in a person or group beneficially owning 10% or more of such
outstanding shares of Common Stock (“Offering Person”) (the earlier of such
dates being called the “Distribution Date”).
Until
the
Distribution Date (or earlier redemption or expiration of the Rights), (i)
the
Rights will be evidenced by the Common Stock certificates and will be
transferred with and only with such Common Stock certificates, (ii) new Common
Stock certificates issued after March 1, 1999 will contain a notation
incorporating the Rights Agreement by reference and (iii) the surrender for
transfer of any certificates for Common Stock outstanding will also constitute
the transfer of the Rights associated with the Common Stock represented by
such
certificate.
The
Rights are not exercisable until the Distribution Date. The Rights will expire
at the close of business on March 1, 2009 (the “Final Expiration Date”), unless
earlier redeemed or exchanged by the Company as described below.
As
soon
as practicable after the Distribution Date, Rights Certificates will be mailed
to holders of record of the Common Stock as of the close of business on the
Distribution Date and, thereafter, the separate Rights Certificates alone will
represent the Rights. Except as otherwise determined by the Board of Directors,
only shares of Common Stock issued prior to the Distribution Date will be issued
with Rights.
In
the
event that the Board of Directors determines that (i) at any time following
the
date of the Rights Agreement, any Person becomes an Acquiring Person (other
than
the Company, its affiliates or members of the Approved Group, as described
in
the Rights Agreement), or (ii) an Acquiring Person engages in various
self-dealing transactions with the Company, each holder of a Right will
thereafter have the right to receive, upon exercise, that number of shares
of
Common Stock (or, in certain circumstances, cash, property or other securities
of the Company) having a value equal to two times the Purchase Price for each
whole share of Common Stock issuable pursuant to the exercise of the Rights
(a
“Flip-In Event”). Notwithstanding any of the foregoing, following the occurrence
of any of the events set forth in this paragraph, all Rights that are, or (under
certain circumstances specified in the Rights Agreement) were, beneficially
owned by any Acquiring Person will be null and void. However, Rights are not
exercisable following the occurrence of any of the events set forth above until
such time as the Rights are no longer redeemable by the Company as set forth
below.
For
example, at a Purchase Price of $50, each Right not owned by an Acquiring Person
(or by certain related parties) following an event set forth in the preceding
paragraph would entitle its holder to purchase $100 worth of Common Stock (or
other consideration, as noted above) for $50. Assuming that the Common Stock
had
a per share value of $25 at such time, the holder of each valid Right would
be
entitled to purchase four shares of Common Stock for $50.
In
the
event that, at any time following the Stock Acquisition Date, (i) the Company
is
acquired in a merger or other business combination transaction in which the
Company is not the surviving corporation, (ii) 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, or (iii)
50% or more of the Company’s assets or earning power is sold or transferred,
each holder of a Right (except Rights which previously have been voided as
set
forth above) shall thereafter have the right to receive, upon exercise, common
stock of, in the situations discussed in (i) and (ii) of this paragraph, the
surviving corporation, and, in the situation discussed in (iii) above, the
Person or entity to which the majority of the assets are sold, having a value
equal to two times the then current Purchase Price for each whole share of
Common Stock issuable pursuant to the exercise of the Rights (a “Flip-Over
Event”).
The
Purchase Price payable, and the number of shares of Common Stock or other
securities or property issuable, upon exercise of the Rights are subject to
adjustment from time to time to prevent dilution (i) in the event of a stock
dividend on, or a subdivision, combination or reclassification of, the Common
Stock, (ii) if holders of the Common Stock are granted certain rights or
warrants to subscribe for Common Stock or convertible securities at less than
the current market price of the Common’ Stock, or (iii) upon the distribution to
holders of the Common Stock of evidences of indebtedness or assets (excluding
regular quarterly cash dividends) or of subscription rights or warrants (other
than those referred to above).
With
certain exceptions, no adjustment in the Purchase Price will be required until
cumulative adjustments amount to at least 1% of the Purchase Price. No
fractional shares will be issued. In lieu thereof of fractional shares equal
to
one-tenth of one share or less, an adjustment in cash will be made based on
the
market price of the Common Stock on the last trading date prior to the date
of
exercise. No Rights may be exercised that would entitle the holder thereof
to
any fractional share greater than one-tenth of a share unless concurrently
therewith such purchaser purchases an additional fraction of a share which,
where added to the number of shares to be received upon such exercise, equals
an
integral number of shares.
The
Purchase Price is payable by certified check, cashier’s check, bank draft or
money order or, if so provided by the Company, the Purchase Price following
the
occurrence of a Flip-In Event and until the first occurrence of a Flip-Over
Event may be paid in Common Stock having an equivalent value.
At
any
time after the acquisition by a Person or group of affiliated or associated
Persons of beneficial ownership of 10% or more of the outstanding Common Stock
and prior to the acquisition by such Person or group of more than 50% of the
outstanding Common Shares, the Board of Directors of the Company may exchange
the Rights (other than Rights owned by such Person or group which have become
void), in whole or in part, at an exchange ratio of one share of Common Stock
(or of a share of a class or series of the Company’s preferred stock having
equivalent rights, preferences and privileges) per Right (subject to
adjustment).
In
general, the Company may redeem the Rights in whole, but not in part, at a
price
of $.01 per Right, at any time until ten business days following the Stock
Acquisition Date. After the redemption period has expired, the Company’s right
of redemption may be reinstated if an Acquiring. Person reduces his or her
beneficial ownership to less than 10% of the outstanding shares of Common Stock
in a transaction or series of transactions not involving the Company. Further,
if the Board of Directors approves a merger, consolidation or sale of
substantially all of the assets of the Company to a third party, the right
of
redemption shall be reinstated and the Board of Directors may, at its option,
redeem the Rights. Immediately upon the action of the Board of Directors
ordering redemption of the Rights, the Rights will terminate and the only right
of the holders of Rights will be to receive the $.01 redemption
price.
Until
a
Right is exercised, the holder thereof, as such, will have no rights as a
stockholder of the Company, including, without limitation, the right to vote
or
to receive dividends. Although the distribution of the Rights will not be
taxable to stockholders or to the Company, stockholders may, depending upon
the
circumstances, recognize taxable income in the event that the Rights become
exercisable for Common Stock (or other consideration) of the Company or for
common stock of the acquiring company as set forth above.
Subject
to certain exceptions, the terms of the Rights Agreement, other than provisions
relating to the principal economic terms of the Rights, may be amended by the
Board of Directors of the Company without the consent of the holders of the
Rights, except that from and after the Distribution Date no such amendment
may
adversely affect the interests of the holders of the Rights.
A
copy of
the Rights Agreement has been filed with the Securities and Exchange Commission
as an Exhibit to a Registration Statement on Form 8-A. A copy of the Rights
Agreement is available free of charge from the Company Agent. This summary
description of the Rights does not purport to be complete and is qualified
in
its entirety by reference to the Rights Agreement, which is incorporated herein
by reference.
--
APPOINTMENT
OF SUCCESSOR RIGHTS AGENT
This
Appointment of Successor Rights Agent (this "Agreement") is dated as of December
15,
2000,
by and among Mellon Investor Services LLC (f/k/a ChaseMellon Shareholder
Services, L.L.C.) ("Mellon"), LaSalle Bank National Association ("LaSalle"),
and
Longview Fibre Company (the "Company").
RECITALS
WHEREAS,
Mellon is acting "Rights Agent," as that term is defined in that certain Rights
Agreement dated as of March 1, 1999 (the "Rights Agreement"), for the
Company;
WHEREAS,
pursuant to Section 21 of the Rights Agreement, this Agreement constitutes
written notice by the Company to Mellon of its intent to discharge Mellon of
its
duties under the Rights Agreement and to appoint LaSalle as successor Rights
Agent;
WHEREAS,
LaSalle has agreed to act as successor Rights Agent under the Rights
Agreement;
NOW,
THEREFORE, the parties hereby agree as follows:
1.1 Waiver
of Notice.
By
virtue of its signature below, Mellon expressly waives any right it may have
under Section 21 of the Rights Agreement to receive thirty (30) days written
notice from the Company of Mellon's removal as Rights Agent.
1.2 Representations
and Warranties.
Pursuant to Section 21 of the Rights Agreement, LaSalle represents and warrants
that it is an association organized and doing business under the laws of the
United States, is in good standing, has an office in a state of the United
States, is subject to supervision by federal or a state authority and has a
combined capital and surplus of at least $50,000,000.
1.3 Acceptance
of Appointment; No Further Action.
LaSalle
accepts the appointment by the Company as successor Rights Agent under the
Rights Agreement. LaSalle, as successor Rights Agent, shall forthwith act as
successor Rights Agent under the Rights Agreement without further act or deed
and shall be vested with the same powers, rights, duties and responsibilities
as
if it had been originally named as Rights Agent.
1.4 Transfer
of Property.
Mellon
shall promptly deliver and transfer to LaSalle any property held by it under
the
Rights Agreement and shall execute and deliver any further assurance,
conveyance, act or deed necessary for that purpose.
1.5 Notice.
Pursuant to Section 21 of the Rights Agreement, this Agreement shall constitute
notice to Mellon, as predecessor Rights Agent, and LaSalle, as transfer agent,
of the appointment of LaSalle as successor Rights Agent.
1.6 Supplement
to Rights Agreement.
Pursuant to Section 28 of the Rights Agreement, this Agreement shall be deemed
a
supplement to the Rights Agreement and shall be incorporated as such into and
made part of the Rights Agreement. The Company hereby certifies that this
supplement is in compliance with the terms of Section 28 of the Rights
Agreement.
1.7 Successor.
Pursuant to Section 29 of the Rights Agreement, all the covenants and provisions
of the Rights Agreement by or for the benefit of the Rights Agent shall bind
and
inure to the benefit of LaSalle, as successor Rights Agent.
5
1.8 Counterparts;
Facsimile.
This
Agreement may be executed in several counterparts, and by the parties hereto
on
separate counterparts, each of which is an original but all of which together
shall constitute one Agreement. Delivery of an executed signature page to this
Agreement by facsimile transmission shall be as effective as delivery of a
manually signed counterpart of this Agreement.
1.9 Further
Assurances.
The
parties shall cooperate fully with each other and take all further actions
and
execute all further documents as may from time to time be reasonably necessary
to carry out the purposes of this Agreement and the Rights
Agreement.
1.10 Governing
Law.
This
Agreement is being entered into in the State of Washington. This Agreement
shall
be governed by the internal laws (and not the conflict of laws rules) of the
State of Washington; provided, however, that all provisions regarding the
rights, duties and obligations of Mellon shall be governed by and construed
in
accordance with the laws of the State of New York applicable to the contracts
made and to be performed entirely within such state.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year
first written above.
LONGVIEW
FIBRE COMPANY
By
/s/
▇.
▇. ▇▇▇▇▇▇▇▇
Title:
Sr
VP
Finance
MELLON
INVESTOR SERVICES LLC
By:
Title
LASALLE
BANK, NATIONAL
ASSOCIATION
By:
Title
1=
1
"524211.01-Chicago Server 2A - MSW" "" 524211.01-Chicago Server 2A -
MSW
1.8 Counterparts;
Facsimile.
This
Agreement may be executed in several counterparts, and by the parties hereto
on
separate counterparts, each of which is an original but all of which together
shall constitute one Agreement. Delivery of an executed signature page to this
Agreement by facsimile transmission shall be as effective as delivery of a
manually signed counterpart of this Agreement.
1.9 Further
Assurances.
The
parties shall cooperate fully with each other and take all further actions
and
execute all further documents as may from time to time be reasonably necessary
to carry out the purposes of this Agreement and the Rights
Agreement.
1.10 Governing
Law.
This
Agreement is being entered into in the State of Washington. This Agreement
shall
be governed by the internal laws (and not the conflict of laws rules) of the
State of Washington; provided, however, that all provisions regarding the
rights, duties and obligations of Mellon shall be governed by and construed
in
accordance with the laws of the State of New York applicable to the contracts
made and to be performed entirely within such state.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year
first written above.
LONGVIEW
FIBRE COMPANY
By:
Title:
MELLON
INVESTOR SERVICES LLC
By:/s/
▇▇▇ ▇▇▇▇
Title
▇▇▇
▇▇▇▇
ASSISTANT
VICE PRESIDENT
LASALLE
BANK, NATIONAL
ASSOCIATION
By:
Title
2
1.8 Counterparts;
Facsimile.
This
Agreement may be executed in several counterparts, and by the parties hereto
on
separate counterparts, each of which is an original but all of which together
shall constitute one Agreement. Delivery of an executed signature page to this
Agreement by facsimile transmission shall be as effective as delivery of a
manually signed counterpart of this Agreement.
1.9 Further
Assurances.
The
parties shall cooperate fully with each other and take all further actions
and
execute all further documents as may from time to time be reasonably necessary
to carry out the purposes of this Agreement and the Rights
Agreement.
1.10 Governing
Law.
This
Agreement is being entered into in the State of Washington. This Agreement
shall
be governed by the internal laws (and not the conflict of laws rules) of the
State of Washington; provided, however, that all provisions regarding the
rights, duties and obligations of Mellon shall be governed by and construed
in
accordance with the laws of the State of New York applicable to the contracts
made and to be performed entirely within such state.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year
first written above.
LONGVIEW
FIBRE COMPANY
By
Title:
MELLON
INVESTOR SERVICES LLC
By:
Title
LASALLE
BANK, NATIONAL
ASSOCIATION
By:
/s/
G.
Malatra
Title
FIRST
VICE PRESIDENT
2
LONGVIEW
FIBRE COMPANY
Officer's
Certificate
The
undersigned, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, the duly elected Senior Vice-President, Treasurer
and Secretary of Longview Fibre Company, a Washington corporation (the
"Company"),
pursuant to Section 28 of that certain Rights Agreement dated as of March 1,
1999 by and between the Company and Mellon Investor Services LLC (f/k/a
ChaseMellon Shareholder Services, L.L.C.) (the "Agreement"),
certifies on behalf of the Company to the best of her knowledge and belief
that:
1. The
Appointment of Successor Rights Agent by and among the Company, Mellon Investor
Services LLC and LaSalle Bank National Association dated as of December
15,
2000,
complies with the terms of Section 28. of the Agreement.
IN
WITNESS WHEREOF, I have signed this Certificate as of December 15,
2000.
/s/
▇.
▇. ▇▇▇▇▇▇▇▇
▇▇▇▇
▇.
▇▇▇▇▇▇▇▇
Senior
Vice President-Finance, Treasurer and Secretary
APPOINTMENT
OF SUCCESSOR RIGHTS AGENT
This
Appointment of Successor Rights Agent (this "Agreement") is dated as of June
20,
2005, by and among LaSalle Bank National Association ("LaSalle"), ▇▇▇▇▇ Fargo
Bank, N.A. ("▇▇▇▇▇ Fargo") and Longview Fibre Company (the
"Company").
RECITALS
WHEREAS,
LaSalle is acting "Rights Agent," as that term is defined in that certain Rights
Agreement dated as of March 1, 1999 (the "Rights Agreement"), for the
Company;
WHEREAS,
the Board of Directors of the Company has determined that it is in the best
interests of the Company to appoint ▇▇▇▇▇ Fargo as successor Rights Agent under
the Rights Agreement;
WHEREAS,
pursuant to Section 21 of the Rights Agreement, the Company provided to LaSalle,
in a letter dated May 13, 2005, written notice of its intent to discharge
LaSalle of its duties under the Rights Agreement and to appoint ▇▇▇▇▇ Fargo
as
successor Rights Agent; and
WHEREAS,
▇▇▇▇▇ Fargo has agreed to act as successor Rights Agent under the Rights
Agreement;
NOW,
THEREFORE, the parties hereby agree as follows:
1.1 Representations
and Warranties.
Pursuant
to Section 21 of the Rights Agreement, ▇▇▇▇▇ Fargo represents and warrants
that
it is an association organized and doing business under the laws of the United
States, is in good standing, has an office in a state of the United States,
is
subject to supervision by federal or a state authority and has a combined
capital and surplus of at least $50,000,000.
1.2 Acceptance
of Appointment; No Further Action.
▇▇▇▇▇
Fargo accepts the appointment by the Company as successor Rights Agent under
the
Rights Agreement. ▇▇▇▇▇ Fargo, as successor Rights Agent, shall act as successor
Rights Agent under the Rights Agreement without further act or deed and shall
be
vested with the same powers, rights, duties and responsibilities as if it had
been originally named as Rights Agent.
1.3 Transfer
of Property.
LaSalle
shall promptly deliver and transfer to ▇▇▇▇▇ Fargo any property held by it
under
the Rights Agreement and shall execute and deliver any further assurance,
conveyance, act or deed necessary for that purpose.
1.4 Supplement
to Rights Agreement.
Pursuant
to Section 28 of the Rights Agreement, this Agreement shall be deemed a
supplement to the Rights Agreement and shall be incorporated as such into and
made part of the Rights Agreement. The Company hereby certifies that this
supplement is in compliance with the terms of Section 28 of the Rights
Agreement.
1.5 Successor.
Pursuant
to Section 29 of the Rights Agreement, all the covenants and provisions of
the
Rights Agreement by or for the benefit of the Rights Agent shall bind and inure
to the benefit of ▇▇▇▇▇ Fargo, as successor Rights Agent.
1.6 Notices.
Any
notices or demands to be given to ▇▇▇▇▇ Fargo, as successor Rights Agent,
pursuant to Section 27 of the Rights Agreement shall be given to the following
addresses:
Mailing
Address: Street
(or Courier) Address:
▇▇▇▇▇
Fargo Bank, ▇.▇. ▇▇▇▇▇
Fargo Bank, N.A.
Shareowner
Services Shareowner
Services
▇.▇.
▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
St.
▇▇▇▇,
MN 55164-0854 ▇▇▇▇▇
▇▇.
▇▇▇▇, ▇▇ ▇▇▇▇▇
1.7 Counterparts;
Facsimile.
This
Agreement may be executed in several counterparts, and by the parties hereto
on
separate counterparts, each of which is an original but all of which together
shall constitute one Agreement. Delivery of an executed signature page to this
Agreement by facsimile transmission shall be as effective as delivery of a
manually signed counterpart of this Agreement.
1.8 Further
Assurances.
The
parties shall cooperate fully with each other and take all further actions
and
execute all further documents as may from time to time be reasonably necessary
to carry out the purposes of this Agreement and the Rights
Agreement.
1.9 Governing
Law.
This
Agreement shall be governed by, and construed, interpreted and enforced in
accordance with the substantive law of the State of Washington, excluding any
conflict of laws principles.
(Remainder
of
page
intentionally left blank)
1
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year
first written above.
LONGVIEW
FIBRE COMPANY
By:/s/
▇.
▇. ▇▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title:
Senior Vice President-Finance
LASALLE
BANK NATIONAL
ASSOCIATION
By:
/s/
▇.
▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Title:
SENIOR
VICE PRESIDENT
▇▇▇▇▇
FARGO BANK, N.A.
By:
/s/
▇▇▇▇▇ ▇▇▇▇
Name:
▇▇▇▇▇
▇▇▇▇
Title:
Assistant
Vice President