CKE RESTAURANTS, INC. and Mellon Investor Services LLC, as Rights Agent Rights Agreement Dated as of January 5, 2009
CKE
RESTAURANTS, INC.
and
Mellon
Investor Services LLC,
as Rights
Agent
Dated as
of January 5, 2009
|
TABLE
OF CONTENTS
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|
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Section
1
|
Certain
Definitions.
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|
Section
2
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Appointment
of Rights Agent.
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Section
3
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Issuance
of Rights Certificates.
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Section
4
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Form
of Rights Certificates.
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Section
5
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Countersignature
and Registration.
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Section
6
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Transfer,
Split Up, Combination and Exchange of Rights Certificates; Mutilated,
Destroyed, Lost or Stolen Rights Certificates.
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Section
7
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Exercise
of Rights; Purchase Price; Expiration Date of Rights.
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Section
8
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Cancellation
and Destruction of Rights Certificates.
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Section
9
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Reservation
and Availability of Capital Stock.
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Section
10
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Preferred
Stock Record Date.
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Section
11
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Adjustment
of Purchase Price, Number and Kind of Shares or Number of
Rights.
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Section
12
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Certificate
of Adjusted Purchase Price or Number of Shares.
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Section
13
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Consolidation,
Merger or Sale or Transfer of Assets or Earning Power.
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Section
14
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Fractional
Rights and Fractional Shares.
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Section
15
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Rights
of Action.
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Section
16
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Agreement
of Rights Holders.
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Section
17
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Rights
Certificate Holder Not Deemed a Stockholder.
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Section
18
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Concerning
the Rights Agent.
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Section
19
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Merger
or Consolidation or Change of Name of Rights Agent.
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Section
20
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Rights
and Duties of Rights Agent.
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Section
21
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Change
of Rights Agent.
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Section
22
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Issuance
of New Rights Certificates.
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Section
23
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Redemption.
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Section
24
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Exchange.
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Section
25
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Notice
of Certain Events.
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Section
26
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Notices.
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Section
27
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Supplements
and Amendments.
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Section
28
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Successors.
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Section
29
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Determinations
and Actions by the Board.
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Section
30
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Benefits
of this Agreement.
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Section
31
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Severability.
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Section
32
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Governing
Law.
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Section
33
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Counterparts.
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Section
34
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Descriptive
Headings.
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EXHIBITS
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Exhibit
A
|
Certificate
of Designation of Rights, Preferences and Privileges of Series A Junior
Participating Preferred Stock
|
Exhibit
B Form
of Rights Certificate
Exhibit
C Summary
of Rights
This
Rights Agreement, dated as of January 5, 2009 (the “Agreement”), is made
by and between CKE Restaurants, Inc., a Delaware corporation (the “Company”), and Mellon
Investor Services LLC, a New Jersey limited liability company, as Rights Agent
(the “Rights
Agent”).
W
I T N E S S E T H :
WHEREAS,
on December 29, 2008 (the “Rights Dividend Declaration
Date”), the Board of Directors of the Company (the “Board”) authorized
and declared a dividend distribution of one Right (as hereinafter defined) for
each share of Common Stock, par value $0.01 per share, of the Company
outstanding at the Close of Business on January 7, 2009 (the “Record Date”), and
authorized the issuance of one Right (as such number may hereinafter be adjusted
pursuant to the provisions of Section 11(p) 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
defined in Section 3 hereof), each Right initially representing the right
to purchase one one-hundredth of a share of Series A Junior Participating
Preferred Stock of the Company, $0.01 par value per share, having the rights,
powers and preferences set forth in the form of Certificate of Designation,
Preferences and Rights attached hereto as Exhibit A, upon
the terms and subject to the conditions hereinafter set forth (the “Rights”);
NOW,
THEREFORE, in consideration of the premises and the mutual agreements herein set
forth, the parties hereby agree as follows:
A
G R E E M E N T :
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 fifteen percent (15%) or more
of the shares of Common Stock then outstanding, but shall not include the
Company, any Subsidiary of the Company, any employee benefit plan of the Company
or of any Subsidiary of the Company, any Person or entity organized, appointed
or established by the Company for or pursuant to the terms of any such employee
benefit plan or any Grandfathered Stockholder (as such term is hereinafter
defined). In addition, notwithstanding the foregoing, no Person shall
be deemed to be an Acquiring Person if (i) the Board determines in good
faith that a person who would otherwise be an “Acquiring Person,” but for the
operation of this clause (i), has become such inadvertently (including,
without limitation, because (A) such Person was unaware that it beneficially
owned a percentage of the shares of Common Stock that would otherwise cause such
Person to be an “Acquiring Person” or (B) such Person was aware of the extent of
its Beneficial Ownership of Common Stock but had no actual knowledge of the
consequences of such Beneficial Ownership under this Agreement), and without any
intention of changing or influencing control of the Company, 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 this Section 1(a) (or, in the case solely of Derivative Common Stock (as such
term is hereinafter defined), such Person terminates the subject derivative
transaction or transactions or disposes of the subject derivative security or
securities, or establishes to the satisfaction of the Board that such Derivative
Common Stock are not held with any intention of changing or influencing control
of the Company), (ii) such Person would otherwise become an “Acquiring
Person” (but for the operation of this clause (ii) solely as the result of an
acquisition 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 fifteen percent (15%) or more of the Common Stock of the
Company then outstanding; provided, however, that if a
Person shall become the Beneficial Owner of fifteen percent (15%) or more of the
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 (other than by way of a stock dividend or stock split) of
additional shares of Common Stock representing one-half of one percent (0.50%)
of the then outstanding shares of Common Stock of the Company, then such Person
shall be deemed to be an Acquiring Person, or (iii) a Person enters into an
agreement or transaction or understanding with the Company whereby, solely as a
consequence of that agreement or transaction or understanding, such Person would
otherwise become an “Acquiring Person” (but for the operation of this
clause (iii)), and such agreement, transaction or understanding is approved
by a majority of the Board; provided, however, that if such
Person subsequently becomes the Beneficial Owner (other than by way of a stock
dividend or stock split) of any additional shares of Common Stock in a manner
not specifically approved by a majority of the Board, such Person shall be
deemed to be an Acquiring Person.
(b) “Affiliate” and “Associate” shall have
the respective meanings ascribed to such terms in Rule 12b-2 of the General
Rules and Regulations under the Exchange Act, as in effect on the date of this
Agreement.
(c) A Person
shall be deemed the “Beneficial Owner” of,
and shall be deemed to “beneficially own,”
any securities:
(i) which
such Person or any of such Person’s Affiliates or Associates beneficially owns,
directly or indirectly (as determined pursuant to Rule 13d-3 of the General
Rules and Regulations under the Exchange Act as in effect on the date of this
Agreement);
(ii) which
such Person or any of such Person’s Affiliates or Associates, directly or
indirectly, has the right to acquire (whether such right is exercisable
immediately or only after the passage of time) pursuant to any agreement,
arrangement or understanding (whether or not in writing and other than customary
agreements with and between underwriters and selling group members with respect
to a bona fide public offering of securities) or upon the exercise of conversion
rights, exchange rights, rights, 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 in
accordance with the General Rules and Regulations under the Exchange Act 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 which a
Person or any of such Person’s Affiliates or Associates may be deemed to have
the right to acquire pursuant to any merger or other acquisition agreement
between the Company and such Person (or one or more of its Affiliates or
Associates) if such agreement has been approved by the Board prior to there
being an Acquiring Person, or (C) securities issuable upon exercise of
Rights at any time prior to the occurrence of a Triggering Event, or
(D) securities issuable upon exercise of Rights from and after the
occurrence of a Triggering Event which Rights were acquired by such Person or
any of such Person’s Affiliates or Associates prior to the Distribution Date or
pursuant to Section 3(a) or Section 22 hereof (the “Original Rights”) or
pursuant to Section 11(a) hereof in connection with an adjustment made with
respect to any Original Rights;
(iii) which
such Person or any of such Person’s Affiliates or Associates, directly or
indirectly, has the right to vote or dispose of or “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 (iii) as a result of an agreement,
arrangement or understanding to vote such security if such agreement,
arrangement or understanding: (A) arises solely from a revocable
proxy given in response to a public proxy or consent solicitation made pursuant
to, and in accordance with, the applicable provisions of the General Rules and
Regulations under the Exchange Act, and (B) is not also then reportable by
such Person on Schedule 13D under the Exchange Act (or any comparable or
successor report);
(iv) that are
the subject of a derivative transaction entered into by such Person, or
derivative security acquired by such Person, which gives such Person the
economic equivalent of ownership of an amount of such securities due to the fact
that the value of the derivative is explicitly determined by reference to the
price or value of such securities, without regard to whether (A) such derivative
conveys any voting rights in such securities to such Person, (B) the derivative
is required to be, or capable of being, settled through delivery of such
securities, or (C) such Person may have entered into other transactions that
hedge the economic effect of such derivative. In determining the
number of shares of Common Stock deemed beneficially owned by virtue of the
operation of this Section 1(c)(iv), the subject Person shall be deemed to
beneficially own (without duplication) the number of shares of Common Stock that
are synthetically owned pursuant to such derivative transactions or such
derivative securities. Such shares of Common Stock that are deemed so
beneficially owned pursuant to the operation of this Section 1(c)(iv) shall
be referred to herein as “Derivative Common
Stock”; or
(v) 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 as described in the proviso to
subparagraph (iii) of this paragraph (c)) or disposing of any voting
securities of the Company; provided, however, that nothing
in this paragraph (c) shall cause a Person engaged in 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 (40) days after
the date of such acquisition; and provided further, however,
that in no case shall an officer or director of the Company be deemed
(x) 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
(y) 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 Ownership to the contrary, the phrase
“then outstanding,” when used in reference to a Person’s Beneficial Ownership 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 that such Person would be deemed to Beneficially Own
hereunder.
(d) “Business Day” shall
mean any day other than a Saturday, Sunday or a day on which banking
institutions in the State of California, New York or New Jersey are authorized
or obligated by law or executive order to close.
(e) “Close of Business” on
any given date shall mean 5:00 P.M., New York time, on such date; provided, however, that if such
date is not a Business Day it shall mean 5:00 P.M., New York time, on the
next succeeding Business Day.
(f) “Common Stock” shall
mean the Common Stock, par value $0.01 per share, of the Company, except that
“Common Stock” when used with reference to any Person other than the Company
shall mean the capital stock of such Person with the greatest voting power, or
the equity securities or other equity interest having power to control or direct
the management, of such Person.
(g) “Exchange Act” shall
mean the Securities Exchange Act of 1934, as amended to date.
(h) “Expiration Date”
shall mean the earliest of (i) the Close of Business on the Final
Expiration Date, (ii) the time at which the Rights are redeemed as provided
in Section 23 hereof, or (iii) the time at which the Board orders the
exchange of the Rights as provided in Section 24 hereof.
(i) “Final Expiration
Date” shall mean the date upon which the Rights expire and shall be the
Close of Business on December 31, 2009, unless the Rights are previously
redeemed, exchanged or terminated.
(j) “Grandfathered
Stockholder” shall mean any Person that would otherwise be deemed an
Acquiring Person upon the adoption of this Agreement (but for the exception set
forth in Section 1(a)); provided, however, that any Grandfathered Stockholder
shall not be deemed an Acquiring Person for purposes of this Agreement only for
so long as neither it nor any of its Affiliates or Associates acquire beneficial
ownership of any additional shares of Common Stock after adoption of this
Agreement (other than pursuant to a dividend or distribution paid or made by the
Company on a pro rata basis to all holders of outstanding Common Stock or
pursuant to a split or subdivision of the outstanding Common Stock), and in the
event that any Grandfathered Stockholder (or its Affiliates or Associates) does
so acquire beneficial ownership of additional shares of Common Stock, then such
Person shall no longer be deemed a Grandfathered Stockholder and shall be deemed
an Acquiring Person if at such time such Person, together with all Affiliates
and Associates of such Person, is the Beneficial Owner of fifteen percent (15%)
or more of the shares of Common Stock then outstanding.
(k) “Person” shall mean
any individual, firm, corporation, limited liability company, partnership, trust
or other entity, and shall include any successor (by merger or otherwise) of
such entity.
(l) “Preferred Stock”
shall mean shares of Series A Junior Participating Preferred Stock, par
value $0.01 per share, of the Company, having the rights and preferences set
forth in the form of Certificate of Designation, Preferences and Rights attached
hereto as Exhibit A.
(m) “Qualified Offer”
shall mean a tender offer for all outstanding shares of Common Stock made in the
manner prescribed by Section 14(d) of the Exchange Act and the rules and
regulations promulgated thereunder which meets all of the following
requirements:
(i) the same
per share price and consideration is offered for all shares of Common Stock in
the Qualified Offer;
(ii) the
consideration is at least eighty percent (80%) cash (and any non-cash portion is
comprised of shares listed on any national securities exchange to be adjusted to
reflect any decrease in the value of such shares prior to the consummation of
the Qualified Offer) and is to be paid upon consummation of the Qualified Offer
for all tendered or exchanged shares of Common Stock in the Qualified
Offer;
(iii) on or
prior to the date such offer is commenced within the meaning of
Rule 14d-2(a) of the General Rules and Regulations under the Exchange Act,
such Person:
(A) has on
hand cash or cash equivalents for the full amount necessary to consummate such
offer and has irrevocably committed in writing to the Company to utilize such
cash or cash equivalents for purposes of such offer if consummated and to set
apart and maintain available such cash or cash equivalents for such purposes
until the offer is consummated or withdrawn; or
(B) has all
financing in the full amount necessary to consummate such offer and
has:
(1) entered
into, and provided to the Company certified copies of, definitive financing
agreements (including exhibits and related documents) for funds for such offer
which, when added to the amount of cash and cash equivalents available,
committed in writing, set apart and maintained in the same manner as described
in clause (A) above, are in an amount not less than the full amount
necessary to consummate such offer, which agreements are with one or more
responsible financial institutions or other entities having the necessary
financial capacity and ability to provide such funds, and are subject only to
customary terms and conditions (which shall in no event include conditions
requiring access by such institutions to non-public information to provided by
the Company, conditions based on the of any information concerning the Company,
conditions requiring the Company to make any, warranties or covenants in with
such financing), and
(2) provided
to the Company copies all written materials prepared by such Person for
financial institutions in connection with into such financing agreements;
provided, “the full amount necessary to consummate such offer” in either
clause (A) or (B) above shall be an sufficient to pay for all shares of
Common Stock outstanding on a fully diluted basis the cash of the consideration
pursuant to the offer the second-step transaction required by clause (vii)
below and all related expenses;
(iv) the
offering Person requests the Company to call a special meeting of the Company’s
stockholders for the purpose of voting on a resolution (i) accepting such
Qualified Offer, as such Qualified Offer may be amended or revised by the
offering Person from time to time to increase the price per share to be paid to
holders of shares of Common Stock, and (ii) authorizing the redemption of the
Rights pursuant to Section 23(b)(ii) hereof, and contains a written
agreement of such Person to pay (or share with any other offering Person)
one-half of the Company’s costs of such special meeting;
(v) such
offer remains open for at least sixty (60) Business Days and at least ten (10)
Business Days after but not including the special meeting of the Company’s
stockholders; provided, however, that (x) if
there is any increase in the price of such offer, such offer must remain open
for at least an additional fifteen (15) Business Days after but not including
the date of the last such increase, (y) such offer must remain open for at least
fifteen (15) Business Days after but not including the date that any bona fide
alternative offer is made which, in the opinion of one or more investment
banking firms designated by the Company, provides for consideration per share in
excess of that provided for in such offer, and (z) such offer must remain open
for at least fifteen (15) Business Days after but not including the date, if
any, on which such Person reduces the per share price offered in accordance with
clause (vii)(y) below (provided, in the case of each of clauses (x),
(y) and (z) above, in no event will such offer have been outstanding for less
than sixty (60) Business Days and at least ten (10) Business Days after but not
including the date of the special meeting of the Company’s stockholders); provided further, however, that such
offer need not remain open, as a result of this clause (v), beyond (1) the
time which any other offer satisfying the criteria for a Qualified Offer is then
required to be kept open under this clause (v), or (2) the scheduled
expiration date, as such date may be extended by public announcement on or prior
to the then scheduled expiration date, of any other tender or exchange offer for
Common Stock with respect to which the Board has agreed to redeem the Rights
immediately prior to acceptance for payment of Common Stock thereunder (unless
such other offer is terminated prior to its expiration without any Common Stock
having been purchased thereunder);
(vi) such
offer is accompanied by a written opinion, in customary form, of a nationally
recognized investment banking firm which is addressed to the Company and the
holders of Common Stock other than such Person and states that the price to be
paid to holders pursuant to the offer is fair from a financial point of view to
such holders and includes any written presentation of such firm showing the
analysis and range of values underlying such conclusions and such written
opinion and any such presentation is updated and provided to the Company within
two Business Days prior to but not including the date such offer is
consummated;
(vii) prior to
or on the date that such offer is commenced within the meaning of
Rule 14d-2(a) of the General Rules and Regulations under the Exchange Act,
such Person makes an irrevocable written commitment to the Company and, with
respect to clause (x), to its stockholders, (x) to consummate a transaction
or transactions promptly upon the completion of such offer (and in no event
later than five (5) Business Days thereafter), whereby all Common Stock not
purchased in such offer will be acquired at the same cash price per share paid
in such offer, subject only to the condition that the Board shall have granted
any approvals required to enable such Person to consummate such transaction or
transactions following consummation of such offer without obtaining the vote of
any other stockholder, (y) that such Person will not make any amendment to the
original offer which reduces the per share price offered (other than a reduction
to reflect any dividend declared by the Company, other than a regular quarterly
dividend, after the commencement of such offer or any material change in the
capital structure of the Company initiated by the Company after the commencement
of such offer, whether by way of reclassification, recapitalization,
reorganization, repurchase or otherwise), changes the form of consideration
offered, or reduces the number of shares being sought or which is in any other
respect materially adverse to the Company’s stockholders, and (z) if the
Qualified Offer is not consummated, that neither such Person nor any of its
Affiliates or Associates will make any offer for or purchase any equity
securities of the Company for a period of twelve (12) months after the
commencement of the original offer if such original offer does not result in the
tender of at least eighty five percent (85%) of the outstanding shares of Common
Stock not owned by such Person (including its Affiliates and Associates), unless
another tender offer by another party for all outstanding Common Stock is
commenced that (a) constitutes a Qualified Offer (in which event, any new offer
by such Person or of any Affiliates or Associates must be at a price no less
than that provided for in such original offer) or (b) is approved by the Board
(in which event, any new offer by such Person or of any of its Affiliates or
Associates must be at a price no less than that provided for in such approved
offer); and
(viii) except
for the requirements set forth above, and other than usual and customary terms
and conditions for regulatory and stockholder approvals, such offer is not
subject to any financing, funding or similar condition, nor any condition
relating to completion of or satisfaction with any due diligence or similar
investigation.
(n) “Section 11(a)(ii)
Event” shall mean any event described in Section 11(a)(ii) (A), (B)
or (C) hereof.
(o) “Section 13
Event” shall mean any event described in clauses (x), (y) or (z) of
Section 13(a) hereof.
(p) “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.
(q) “Subsidiary” shall
mean, with reference to any Person, any corporation or other entity of which an
amount of voting securities sufficient to elect at least a majority of the
directors of such corporation or other entity is beneficially owned, directly or
indirectly, by such Person, or otherwise controlled by such Person.
(r) “Triggering Event”
shall mean any Section 11(a)(ii) Event or any Section 13
Event.
Section
2. Appointment of Rights
Agent. The Company hereby appoints the Rights Agent to act as
agent for the Company in accordance with the terms and conditions hereof, and
the Rights Agent hereby accepts such appointment. The Company may
from time to time appoint such co-Rights Agents as it may deem necessary or
desirable. The Rights Agent shall have no duty to supervise, and in
no event shall be liable for, the acts or omissions of any such co-Rights
Agent. In the event the Company appoints one or more co-Rights
Agents, the respective duties of the Rights Agent and any co-Rights Agent shall
be as the Company shall determine and the Company shall provide written notice
thereof to the Rights Agent.
Section
3. Issuance
of Rights Certificates.
(a) Until the
earlier of (i) the Close of Business on the tenth day after the Stock
Acquisition Date (or, if the tenth day after the Stock Acquisition Date occurs
before the Record Date, the Close of Business on the Record Date), or
(ii) the Close of Business on the tenth Business Day (or such later date as
may be determined by action of a majority of the Board prior to such time as any
Person becomes an Acquiring Person) 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 employee benefit plan) is first published or
sent or given within the meaning of Rule 14d-2(a) of the General Rules and
Regulations under the Exchange Act, if, upon consummation thereof, such Person
would become an Acquiring Person (the earlier 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) or (c)of this Section 3) by the balances indicated in
the book-entry account system of the transfer agent for the Common Stock
registered in the names of the holders of the Common Stock (which shares of
Common Stock shall also be deemed to represent certificates for Rights) or, in
the case of certificated shares, the certificates for the Common Stock
registered in the names of the holders of the Common Stock (which certificates
for Common Stock shall also be deemed 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). The Company shall promptly notify the
Rights Agent in writing upon the occurrence of the Distribution Date and, if
such notification is given orally, the Company shall confirm in writing on or
prior to the Business Day next following. Until such notice is
received by the Rights Agent, the Rights Agent may presume conclusively for all
purposes that the Distribution Date has not occurred. As soon as
practicable after the Distribution Date, and receipt by the Rights Agent of
notice of such occurrence, the Company will prepare and execute, the Rights
Agent will countersign, and the Company will send or cause to be sent, and the
Rights Agent, if requested and provided with all necessary information and
documentation, will send by first class, 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 B
attached hereto (the “Rights
Certificates”), duly executed and countersigned in the manner provided
for in Section 5(a) hereof, evidencing one Right for each share of Common Stock
so held, subject to adjustment as provided herein. In the event that
an adjustment in the number of Rights per share of Common Stock has been made
pursuant to Section 11(p) hereof, at the time of distribution of the Rights
Certificates, the Company shall make the necessary and appropriate rounding
adjustments (in accordance with Section 14(a) hereof) so that Rights
Certificates representing only whole numbers of Rights are distributed and cash
is paid in lieu of any fractional Rights. As of and after the
Distribution Date, the Rights will be evidenced solely by such Rights
Certificates and may be transferred by the transfer of the Rights Certificates
as permitted hereby, separately and apart from any transfer of one or more
shares of Common Stock, and the holders of such Rights Certificates as listed in
the records of the Company or any transfer agent or registrar for the Rights
shall be the record holders thereof.
(b) As
promptly as practicable following the Record Date, the Company will send a copy
of a Summary of Rights, in substantially the form attached hereto as Exhibit C (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
shares of the Common Stock outstanding as of the Record Date, and until the
Distribution Date, the Rights will be evidenced by the balances indicated in the
book-entry account system of the transfer agent for the Common Stock or, in the
case of certificated shares, such certificates for the Common Stock, 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 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) Unless
the Board by resolution adopted at or before the time of the issuance (including
pursuant to the exercise of rights under the Company’s employee benefit plans)
of any Common Stock specifies to the contrary, Rights shall be issued in respect
of all shares of Common Stock which are issued after the Record Date but prior
to the earlier of the Distribution Date or the Expiration Date and the Company
shall cause such certificates to bear legends in substantially the following
form:
(i) The
Company shall cause the confirmation and account statements sent to holders of
shares of Common Stock in book-entry form (which shares of Common Stock shall
also be deemed to represent certificates for Rights) to bear a legend in
substantially the following form:
Each
share of Common Stock, par value, $0.01 per share, of CKE Restaurants, Inc., a
Delaware corporation (the “Company”), entitles
the holder hereof to certain Rights set forth in the Rights Agreement between
the Company and the Rights Agent thereunder (the “Rights Agent”) dated
as of January 5, 2009, as it may be amended, restated, renewed or extended from
time to time (the “Rights Agreement”),
the terms of which are hereby incorporated herein by reference and a copy of
which is on file at the principal offices of the Company and the Rights
Agent. Under certain circumstances, as set forth in the Rights
Agreement, such Rights will be evidenced by separate certificates and will no
longer be evidenced by the shares to which this statement
relates. The Rights Agent will mail to the holder of shares to which
this statement relates 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 beneficially owned (as such term is defined in the Rights
Agreement) 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 shares of Common Stock in book-entry form for which there has been
sent a confirmation or account statement containing the foregoing legend, until
the earlier of (i) the Distribution Date or (ii) the Expiration Date, the Rights
associated with the Common Stock represented by such shares of Common Stock
shall be evidenced by such shares of Common Stock alone and registered holders
of Common Stock shall also be the registered holders of the associated Rights,
and the transfer of any of such shares of Common Stock shall also constitute the
transfer of the Rights associated with such shares of Common Stock.
(ii) In the
case of certificated shares, the Company shall cause certificates representing
shares of Common Stock (which certificates shall also be deemed to be
certificates for Rights) to bear a legend in substantially the following form if
such certificates are issued after the Record Date but prior to the earlier of
the Distribution Date or the Expiration Date:
This
certificate also evidences and entitles the holder hereof to certain Rights as
set forth in the Rights Agreement between CKE Restaurants, Inc., a Delaware
corporation (the “Company”), and the Rights Agent thereunder (the “Rights
Agent”), dated as of January 5, 2009, as it may be amended, restated, renewed or
extended from time to time (the “Rights Agreement”), the terms of which are
hereby incorporated herein by reference and a copy of which is on file at the
principal offices of the Company and the Rights Agent. Under certain
circumstances, as set forth in the Rights Agreement, such Rights will be
evidenced by separate certificates and will no longer be evidenced by this
certificate. The Rights Agent 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
therefore. Under certain circumstances set forth in the Rights
Agreement, Rights beneficially owned (as such term is defined in the Rights
Agreement) 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 earlier
of (i) the Distribution Date or (ii) the Expiration Date, the Rights
associated with the Common Stock represented by such certificates shall be
evidenced by such certificates alone and registered holders of Common Stock also
shall 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 otherwise 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 shares of
Common Stock which are no longer outstanding.
Notwithstanding
this paragraph (c), the omission of a legend shall not affect the enforceability
of any part of this Agreement or the rights of any holder of the
Rights.
Section
4. Form
of Rights Certificates.
(a) The
Rights Certificates (and the forms of election to purchase and of assignment to
be printed on the reverse thereof) shall each be substantially in the form set
forth in Exhibit B
attached hereto and may have such marks of identification or designation and
such legends, summaries or endorsements printed thereon as the Company may deem
appropriate (but which do not affect the rights, 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 one one-hundredths of a share of Preferred Stock as
shall be set forth therein at the price set forth therein (such exercise price
per one one-hundredths of a share, the “Purchase Price”), but
the amount and type of securities purchasable upon the exercise of each Right
and the Purchase Price thereof shall be subject to adjustment as provided
herein.
(b) Any
Rights Certificate issued pursuant to Section 3(a), Section 11(a) or
Section 22 hereof that represents Rights beneficially owned
by: (i) an Acquiring Person or any Associate or Affiliate of an
Acquiring Person, (ii) a transferee of an Acquiring Person (or of any such
Associate or Affiliate) who becomes a transferee after the Acquiring Person
becomes such, or (iii) a transferee of an Acquiring Person (or of any such
Associate or Affiliate) who becomes a transferee prior to or concurrently with
the Acquiring Person becoming such and receives such Rights pursuant to either
(A) a transfer (whether or not for consideration) from the Acquiring Person
to holders of equity interests in such Acquiring Person or to any Person with
whom such Acquiring Person has any continuing agreement, arrangement or
understanding (whether or not in writing) regarding the transferred Rights or
(B) a transfer which the Board, in its sole discretion, has determined is
part of a plan, arrangement or understanding which has as a primary purpose or
effect the avoidance of Section 7(e) hereof, and the Company shall cause
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, to contain (to the extent feasible) a
legend in substantially the following form:
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 the Rights Agreement.
Section
5. Countersignature
and Registration.
(a) The
Rights Certificates shall be duly executed on behalf of the Company by its
Chairman of the Board, its President or any Vice President, either manually or
by facsimile signature, and shall have affixed thereto the Company’s seal or a
facsimile thereof which shall be attested by the Secretary or an Assistant
Secretary of the Company, either manually or by facsimile
signature. The Rights Certificates shall be manually countersigned by
the Rights Agent and shall not be valid for any purpose unless so
countersigned. In case any officer of the Company who shall have
signed any of the Rights Certificates shall cease to be such officer of the
Company before countersignature by the Rights Agent and issuance and delivery by
the Company, such Rights Certificates, nevertheless, may be countersigned by the
Rights Agent and issued and delivered by the Company with the same force and
effect as though the Person who signed such Rights Certificates had not ceased
to be such officer of the Company; and any Rights Certificates may be signed on
behalf of the Company by any Person who, at the actual date of the execution of
such Rights Certificate, shall be a proper officer of the Company to sign such
Rights Certificate, although at the date of the execution of this Rights
Agreement any such Person was not such an officer.
(b) Following
the Distribution Date, and receipt by the Rights Agent of notice of such
occurrence, and of all other necessary information and documentation, as
provided in Section 3(a) hereof, the Rights Agent will keep or cause to be
kept, at its office 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, the
Rights 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), Section 14 and
Section 24 hereof, at any time after the Close of Business on the
Distribution Date, and at or prior to the Close of Business on the Expiration
Date, any Rights Certificate or Certificates may be transferred, split up,
combined or exchanged for another Rights Certificate or Certificates, entitling
the registered holder to purchase a like number of one one-hundredths of a share
of Preferred Stock (or following a Triggering Event, Common Stock, other
securities, cash or other assets, as the case may be) as the Rights Certificate
or Certificates surrendered then entitled such holder (or former holder in the
case of a transfer) to purchase. Any registered holder desiring to
transfer, split up, combine or exchange any Rights Certificate or Certificates
shall make such request in writing delivered to the Rights Agent, and shall
surrender the Rights Certificate or Certificates to be transferred, split up,
combined or exchanged at the office or offices of the Rights Agent designated
for such purpose. The Rights Certificates shall be transferable only
on the registry books of the Rights Agent. 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 properly completed and duly 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) thereof and of the Rights evidenced thereby
or of the Affiliates or Associates of such Beneficial Owner (or former
Beneficial Owner) as the Company or the Rights Agent shall reasonably
request. Thereupon the Rights Agent shall, subject to
Section 4(b), Section 7(e), Section 14 and Section 24
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 charge that may be imposed in connection with any transfer,
split up, combination or exchange of Rights Certificates, registered in such
name or names as may be designated by the surrendering registered
holder. If and to the extent the Company does require payment of any
such taxes or charges, the Rights Agent shall not deliver the Rights
Certificate(s) unless and until it is satisfied that all such payments have been
made, and the Rights Agent shall promptly forward any such sum collected by it
to the Company or to such persons as the Company may specify by written
notice.
(b) Upon
receipt by the Company and the Rights Agent of evidence satisfactory to them of
the loss, theft, destruction or mutilation of a Rights Certificate, and, in case
of loss, theft or destruction, of indemnity or security 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 properly completed and duly executed, to the Rights
Agent at the office or offices of the Rights Agent designated for such purpose,
together with payment of the aggregate Purchase Price with respect to the total
number of one one-hundredths of a share of Preferred Stock (or other securities
or property, as the case may be) as to which such surrendered Rights are then
exercisable, and an amount equal to any applicable transfer tax or charge
required to be paid under Section 9(e) hereof, at or prior to the
Expiration Date. Except for those provisions herein which expressly
survive the termination of this Agreement, this Agreement shall terminate at
such time as the Rights are no longer exercisable hereunder.
(b) The
Purchase Price for each one one-hundredths of a share of Preferred Stock
pursuant to the exercise of a Right shall initially be Forty Dollars ($40.00),
and shall be subject to adjustment from time to time as provided in
Section 11 hereof and shall be payable in accordance with
paragraph (c) below.
(c) Upon
receipt of a Rights Certificate representing exercisable Rights, with the form
of election to purchase properly completed and the certificate duly executed,
accompanied by payment, with respect to each Right so exercised, of the Purchase
Price per one one-hundredths of a share of Preferred Stock (or other shares,
securities or property, as the case may be) to be purchased as set forth below
and an amount equal to any applicable transfer tax or charge required to be paid
under Section 9(e) hereof, the Rights Agent shall, subject to
Section 20(k) hereof, thereupon promptly (i) (A) requisition from
any transfer agent of the shares of Preferred Stock (or make available, if the
Rights Agent is the transfer agent for such shares) certificates for the total
number of one one-hundredths of a share of Preferred Stock to be purchased and
the Company hereby irrevocably authorizes its transfer agent to comply with all
such requests, or (B) if the Company shall have elected to deposit the
total number of shares of Preferred Stock issuable upon exercise of the Rights
hereunder with a depositary agent, requisition from the depositary agent
depositary receipts representing such number of one one-hundredths of a share of
Preferred Stock as are to be purchased (in which case certificates for the
shares of Preferred Stock represented by such receipts shall be deposited by the
transfer agent with the depositary agent) and the Company will direct the
depositary agent to comply with such request, (ii) when
necessary, requisition from the Company the amount of cash, if any, to be paid
in lieu of fractional shares in accordance with Section 11 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) when necessary, 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) and an amount equal to any
applicable transfer tax or charge required to be paid under Section 9(e)
hereof, may be made (x) in cash or by certified bank check, cashier’s
check, bank draft or money order payable to the order of the Company, or
(y) by delivery of a certificate or certificates (with appropriate stock
powers executed in blank attached thereto) evidencing a number of shares of
Common Stock equal to the sum of the then Purchase Price and an amount equal to
any applicable transfer tax or charge required to be paid under
Section 9(e) hereof, divided by the closing market price (as determined
pursuant to Section 11(d) hereof) per share of Common Stock on the Trading
Date immediately preceding the date of such exercise. In the event
that the Company is obligated to issue other securities (including Common Stock)
of the Company, pay cash and/or distribute other property pursuant to
Section 11(a) hereof, the Company will make all arrangements necessary so
that such other securities, cash and/or other property are available for
distribution by the Rights Agent, if and when 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 14 hereof.
(e) Notwithstanding
anything in this Agreement to the contrary, from and after the first occurrence
of a Triggering Event, any Rights beneficially owned by (i) an Acquiring
Person or an Associate or Affiliate of an Acquiring Person, (ii) a
transferee of an Acquiring Person (or of any such Associate or Affiliate) who
becomes a transferee after the Acquiring Person becomes such (a “Post Transferee”), 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 had any continuing agreement, arrangement or understanding
regarding the transferred Rights or (B) a transfer which the Board has
determined is part of a plan, arrangement or understanding which has as a
primary purpose or effect the avoidance of this Section 7(e) (a “Prior Transferee”),
or (iv) any subsequent transferee receiving transferred Rights from a Post
Transferee or a Prior Transferee, either directly or through one or more
intermediate transferees, shall become null and void without any further action
and no holder of such Rights shall have any rights whatsoever with respect to
such Rights, whether under any provision of this Agreement or
otherwise. The Company shall use all reasonable efforts to insure
that the provisions of this Section 7(e) and Section 4(b) hereof are
complied with, but 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 its Affiliates, Associates or transferees hereunder.
(f) Notwithstanding
anything in this Agreement to the contrary, neither the Rights Agent nor the
Company shall be obligated to undertake any action with respect to a registered
holder of Rights or other securities upon the occurrence of any purported
exercise as set forth in this Section 7 unless such registered holder shall
have (i) properly completed and duly 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) thereof and of the Rights evidenced thereby or of the
Affiliates or Associates of such Beneficial Owner (or former Beneficial Owner)
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 Preferred Stock (and,
following the occurrence of a Triggering Event, out of its authorized and
unissued shares of Common Stock and/or other securities or out of its authorized
and issued shares held in its treasury), the number of shares of Preferred Stock
(and, following the occurrence of a Triggering Event, Common Stock and/or other
securities) that, as provided in this Agreement including
Section 11(a)(iii) hereof, will be sufficient to permit the exercise in
full of all outstanding Rights.
(b) So long
as the shares of Preferred Stock (and following the occurrence of a Triggering
Event, Common Stock and/or other securities) issuable and deliverable upon the
exercise of the Rights may be listed on any national securities exchange, the
Company shall use its best efforts to cause, from and after such time as the
Rights become exercisable, all shares reserved for such issuance to be listed on
any national securities exchange upon official notice of issuance upon such
exercise.
(c) The
Company shall use its best efforts to (i) file, as soon as practicable
following the earliest date after the first occurrence of a
Section 11(a)(ii) Event on which the consideration to be delivered by the
Company upon exercise of the Rights has been determined in accordance with
Section 11(a)(iii) hereof, or as soon as is required by law following the
Distribution Date, as the case may be, a registration statement under the
Securities Act of 1933, as amended (the “Act”), with respect
to the securities purchasable upon exercise of the Rights on an appropriate
form, (ii) cause such registration statement to become effective as soon as
practicable after such filing, and (iii) cause such registration statement
to remain effective (with a prospectus at all times meeting the requirements of
the Act) until the earlier of (A) the date as of which the Rights are no
longer exercisable for such securities, and (B) the date of the expiration
of the Rights. The Company will also take such action as may be
appropriate under, or to ensure compliance with, the securities or “blue sky”
laws of the various states in connection with the exercisability of the
Rights. The Company may temporarily suspend, for a period of time not
to exceed 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. The Company shall notify the Rights Agent in
writing whenever it makes a public announcement pursuant to this
Section 9(c) and give the Rights Agent a copy of such
announcement(s). 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 (if required) 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 one one-hundredths of a share of Preferred Stock
(and, following the occurrence of a Triggering Event, Common Stock and/or other
securities) delivered upon exercise of Rights shall, at the time of delivery of
the certificates for such shares (subject to payment of the Purchase Price and
compliance with all other applicable provisions of the Agreement), be duly and
validly authorized and issued and fully paid and nonassessable.
(e) The
Company further covenants and agrees that it will pay when due and payable any
and all federal and state transfer taxes and charges which may be payable in
respect of the issuance or delivery of the Rights Certificates and of any
certificates for shares of Preferred Stock (or Common Stock and/or other
securities, as the case may be) upon the exercise of Rights. The
Company shall not, however, be required to pay any transfer tax or charge which
may be payable in respect of any transfer or delivery of Rights Certificates to
a Person other than, or the issuance or delivery of a number of one
one-hundredths of a share of Preferred Stock (or Common Stock and/or other
securities, as the case may be) in respect of a name other than that of, the
registered holder of the Rights Certificates evidencing Rights surrendered for
exercise or to issue or deliver any certificates for a number of one
one-hundredths of a share of Preferred Stock (or Common Stock and/or other
securities, as the case may be) in a name other than that of the registered
holder upon the exercise of any Rights until any such tax or charge shall have
been paid (any such tax or charge being payable by the holder of such Rights
Certificate at the time of surrender) or until it has been established to the
Company’s or the Rights Agent’s satisfaction that no such tax or charge is
due.
Section
10. Preferred Stock Record
Date. Each Person in whose name any certificate for a number
of one one-hundredths of a share of Preferred Stock (or Common Stock and/or
other securities, as the case may be) is issued upon the exercise of Rights
shall for all purposes be deemed to have become the holder of record of such
fractional shares of Preferred Stock (or Common Stock and/or other securities,
as the case may be) represented thereby on, and such certificate shall be dated,
the date upon which the Rights Certificate evidencing such Rights was duly
surrendered and payment of the Purchase Price (and all applicable transfer taxes
or charges) was duly made; provided, however, that if the
date of such surrender and payment is a date upon which the Preferred Stock (or
Common Stock and/or other securities, as the case may be) transfer books of the
Company are closed, such Person shall be deemed to have become the record holder
of such shares (fractional or otherwise) on, and such certificate shall be
dated, the next succeeding Business Day on which the Preferred Stock (or Common
Stock and/or other securities, as the case may be) transfer books of the Company
are open. Prior to the exercise of the Rights evidenced thereby, the
holder of a Rights Certificate shall not be entitled to any rights of a
stockholder of the Company with respect to shares for which the Rights shall be
exercisable, including, without limitation, the right to vote, to receive
dividends or other distributions or to exercise any preemptive rights, and shall
not be entitled to receive any notice of any proceedings of the Company, except
as provided herein.
Section
11. Adjustment of Purchase Price, Number
and Kind of Shares or Number of Rights. The Purchase Price,
the number and kind of shares covered by each Right and the number of Rights
outstanding are subject to adjustment from time to time as provided in this
Section 11.
(a) (i) In
the event the Company shall at any time after the date of this Agreement
(A) declare a dividend on the Preferred Stock payable in shares of
Preferred Stock, (B) subdivide the outstanding Preferred Stock,
(C) combine the outstanding Preferred Stock into a smaller number of
shares, or (D) issue any shares of its capital stock in a reclassification
of the Preferred Stock (including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing or surviving
corporation), except as otherwise provided in this Section 11(a) or in
Section 7 hereof, the Purchase Price in effect at the time of the record
date for such dividend or of the effective date of such subdivision, combination
or reclassification, and the number and kind of shares of Preferred Stock or
capital stock, as the case may be, issuable on such date, shall be
proportionately adjusted so that the holder of any Right exercised after such
time shall be entitled to receive, upon payment of the Purchase Price then in
effect, the aggregate number and kind of shares of Preferred Stock or capital
stock, as the case may be, which, if such Right had been exercised immediately
prior to such date and at a time when the Preferred Stock transfer books of the
Company were open, such holder would have owned upon such exercise and been
entitled to receive by virtue of such dividend, subdivision, combination or
reclassification. If an event occurs which would require an
adjustment under both this Section 11(a)(i) and Section 11(a)(ii)
hereof, the adjustment provided for in this Section 11(a)(i) shall be in
addition to, and shall be made prior to, any adjustment required pursuant to
Section 11(a)(ii) hereof.
(ii) In the
event:
(A) 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 the Common Stock of the Company shall remain outstanding and unchanged,
(2) shall, in one transaction or a series of transactions, transfer any
assets to the Company or to any of its Subsidiaries in exchange (in whole or in
part) for shares of Common Stock, for shares of other equity securities of the
Company, or for securities exercisable for or convertible into shares of equity
securities of the Company (Common Stock or otherwise) or otherwise obtain from
the Company, with or without consideration, any additional shares of such equity
securities or securities exercisable for or convertible into shares of such
equity securities (other than pursuant to a pro rata distribution to all holders
of Common Stock), (3) shall sell, purchase, lease, exchange, mortgage,
pledge, transfer or otherwise acquire or dispose of, in the transaction or a
series of transactions, to, from or with (as the case may be) the Company or any
of its Subsidiaries, assets on terms and conditions less favorable to Company
than the Company would be able to obtain in arm’s length negotiation with an
unaffiliated third party, other than pursuant to a transaction set forth in
Section 13(a) hereof, (4) shall sell, purchase, lease, exchange,
mortgage, pledge, transfer or otherwise acquire or dispose of in one transaction
or a series of transactions, to, from or with (as the case may be) the Company
or any of the Company’s Subsidiaries (other than incidental to the lines of
business, if any, engaged in as of the date hereof between the Company and such
Acquiring Person or Associate or Affiliate) assets having an aggregate fair
market value of more than $5,000,000, other than pursuant to a transaction set
forth in Section 13(a) hereof, (5) 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, or (6) shall receive the
benefit, directly or indirectly (except proportionately as a stockholder and
except if resulting from a requirement of law or governmental regulation), of
any loans, advances, guarantees, pledges or other financial assistance or any
tax credits or other tax advantage provided by the Company or any of its
Subsidiaries, or
(B) any
Person shall become an Acquiring Person, other than pursuant to any transaction
set forth in Section 13(a) hereof, or
(C) during
such time as there is an Acquiring Person, there shall be any reclassification
of securities (including any reverse stock split), or recapitalization of the
Company, or any merger or consolidation of the Company with any of its
Subsidiaries or any other transaction or series of transactions involving the
Company or any of its Subsidiaries, other than a transaction or transactions to
which the provisions of Section 13(a) apply (whether or not with or into or
otherwise involving an Acquiring Person) which has the effect, directly or
indirectly, of increasing by more than one percent (1%) the proportionate share
of the outstanding shares of any class of equity securities of the Company or
any of its Subsidiaries which is directly or indirectly beneficially owned by
any Acquiring Person or any Associate or Affiliate of any Acquiring
Person,
then,
promptly following ten (10) days after the date of the occurrence of an event
described in Section 11(a)(ii)(B) hereof and promptly following the
occurrence of any event described in Section 11(a)(ii)(A) or (C) hereof,
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 at the then current Purchase Price in
accordance with the terms of this Agreement, in lieu of shares of Preferred
Stock, such number of shares of Common Stock of the Company as shall equal the
result obtained by (x) multiplying the then current Purchase Price by the
then number of one one-hundredths of a share of Preferred Stock for which a
Right was exercisable immediately prior to the first occurrence of a
Section 11(a)(ii) Event, and dividing that product (which, following such
first occurrence, shall thereafter be referred to as the “Purchase Price” for
each Right and for all purposes of this Agreement) by (y) fifty percent
(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 charter 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 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 based upon the advice of a nationally recognized
investment banking firm selected by the Board; 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 later of (x) and (y) being referred to herein as the “Section 11(a)(ii)
Trigger Date”), then the Company shall be obligated to deliver, upon the
surrender for exercise of a Right and without requiring payment of the Purchase
Price, shares of Common Stock (to the extent available) and then, if necessary,
cash, which in the aggregate are equal to the Spread. If the Board
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 following the first
occurrence of a Section 11(a)(ii) Trigger Date, in order that the Company
may seek stockholder approval for the authorization of such additional shares
(such period, as it may be extended, the “Substitution
Period”). To the extent that the Company determines that some
action need be taken pursuant to the first and/or second sentences of this
Section 11(a)(iii), the Company (x) shall provide, subject to
Section 7(e) hereof, that such action shall apply uniformly to all
outstanding Rights, and (y) may suspend the exercisability of the Rights
until the expiration of the Substitution Period in order to seek any
authorization of additional shares and/or to decide the appropriate form of
distribution to be made pursuant to such first sentence and to determine the
value thereof. In the event of any such suspension, the Company shall
issue a public announcement stating that the exercisability of the Rights has
been temporarily suspended, as well as a public announcement at such time as the
suspension is no longer in effect (with prompt written notice of each such
announcement 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 date of the first occurrence of a Section 11(a)(ii)
Trigger Date and the value of any “common stock equivalent” shall be deemed to
have the same value as the Common Stock on such date.
(b) In case
the Company shall fix a record date for the issuance of rights, options or
warrants to all holders of Preferred Stock entitling them to subscribe for or
purchase (for a period expiring within forty-five (45) calendar days after such
record date) Preferred Stock (or shares having the same rights, privileges and
preferences as the shares of Preferred Stock (“equivalent preferred
stock”)) or securities convertible into Preferred Stock or equivalent
preferred stock at a price per share of Preferred Stock or per share of
equivalent preferred stock (or having a conversion price per share, if a
security convertible into Preferred Stock or equivalent preferred stock) less
than the current market price (as determined pursuant to Section 11(d)
hereof) per share of Preferred Stock on such record date, the Purchase Price to
be in effect after such record date shall be determined by multiplying the
Purchase Price in effect immediately prior to but not including such record date
by a fraction, the numerator of which shall be the number of shares of Preferred
Stock outstanding on such record date, plus the number of shares of Preferred
Stock which the aggregate offering price of the total number of shares of
Preferred Stock and/or equivalent preferred stock so to be offered (and/or the
aggregate initial conversion price of the convertible securities so to be
offered) would purchase at such current market price, and the denominator of
which shall be the number of shares of Preferred Stock outstanding on such
record date, plus the number of additional shares of Preferred Stock and/or
equivalent preferred stock to be offered for subscription or purchase (or into
which the convertible securities so to be offered are initially convertible);
provided, however, that in no
event shall the consideration to be paid upon the exercise of one Right be less
than the aggregate par value of the shares of capital stock of the Company
issuable upon the exercise of one Right. 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, whose determination shall be described in a statement
filed with the Rights Agent and shall be binding on the Rights Agent and the
holders of the Rights. Shares of Preferred Stock owned by or held for
the account of the Company shall not be deemed outstanding for the purpose of
any such computation. Such adjustment shall be made successively
whenever such a record date is fixed, and in the event that such rights or
warrants are not so issued, the Purchase Price shall be adjusted to be the
Purchase Price which would then be in effect if such record date had not been
fixed.
(c) In case
the Company shall fix a record date for a distribution to all holders of
Preferred Stock (including any such distribution made in connection with a
consolidation or merger in which the Company is the continuing corporation) of
evidences of indebtedness, cash (other than a regular cash dividend out of the
earnings or retained earnings of the Company), assets (other than a dividend
payable in Preferred Stock, but including any dividend payable in stock other
than Preferred Stock) or subscription rights or warrants (excluding those
referred to in Section 11(b) hereof), the Purchase Price to be in effect
after such record date shall be determined by multiplying the Purchase Price in
effect immediately prior to such record date by a fraction, the numerator of
which shall be the current market price (as determined pursuant to
Section 11(d) hereof) per share of Preferred Stock on such record date,
less the fair market value (as determined in good faith by the Board, whose
determination shall be described in a statement filed with the Rights Agent) of
the portion of the cash, assets or evidences of indebtedness so to be
distributed or of such subscription rights or warrants applicable to a share of
Preferred Stock and the denominator of which shall be such current market price
(as determined pursuant to Section 11(d) hereof) per share of Preferred
Stock; provided, however, that in no
event shall the consideration to be paid upon the exercise of one Right be less
than the aggregate par value of the shares of capital stock of the Company
issuable upon the exercise of one Right. Such adjustments shall be
made successively whenever such a record date is fixed, and in the event that
such distribution is not so made, the Purchase Price shall be adjusted to be the
Purchase Price which would have been in effect if such record date had not been
fixed.
(d) (i) For
the purpose of any computation hereunder, other than computations made pursuant
to Section 11(a)(iii) hereof, the “current market price” per share of
Common Stock on any date shall be deemed to be the average of the daily closing
prices per share of such Common Stock for the thirty (30) consecutive Trading
Days (as such term is hereinafter defined) immediately prior to but not
including such date, and for purposes of computations made pursuant to
Section 11(a)(iii) hereof, the “current market price” per share of Common
Stock on any date shall be deemed to be the average of the daily closing prices
per share of such Common Stock for the ten (10) consecutive Trading Days
immediately following but 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 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 the effect of such dividend, distribution, subdivision, combination or
reclassification. The closing price for each day shall be the last
sale price, regular way, or, in case no such sale takes place on such day, the
average of the closing bid and asked prices, regular way, in either case as
reported in the principal consolidated transaction reporting system with respect
to securities listed or admitted to trading on the 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 any system then in use, or, if on any such date the
shares of Common Stock are not quoted by any such organization, the average of
the closing bid and asked prices as furnished by a professional market maker
making a market in the Common Stock selected by the Board. 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 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, whose determination shall be described in
a statement filed with the Rights Agent and shall be conclusive for all
purposes.
(ii) For the
purpose of any computation hereunder, the “current market price”
per share of Preferred Stock shall be determined in the same manner as set forth
above for the Common Stock in clause (i) of this Section 11(d) (other
than the last sentence thereof). If the current market price per
share of Preferred Stock cannot be determined in the manner provided above or if
the Preferred Stock is not publicly held or listed or traded in a manner
described in clause (i) of this Section 11(d), the “current market
price” per share of Preferred Stock shall be conclusively deemed to be an amount
equal to 100 (as such number may be appropriately adjusted for such events as
stock splits, stock dividends and recapitalizations with respect to the Common
Stock occurring after the date of this Agreement) multiplied by the current
market price per share of the Common Stock. If neither the Common
Stock nor the Preferred Stock is publicly held or so listed or traded, “current
market price” per share of the Preferred Stock shall mean the fair value per
share as determined in good faith by the Board, whose determination shall be
described in a statement filed with the Rights Agent and shall be conclusive for
all purposes. For all purposes of this Agreement, the “current market
price” of one one-hundredth of a share of Preferred Stock shall be equal to the
“current market price” of one share of Preferred Stock divided by one hundred
(100).
(e) Anything
herein to the contrary notwithstanding, no adjustment in the Purchase Price
shall be required unless such adjustment would require an increase or decrease
of at least one percent (1%) in the Purchase Price; provided, however, that any
adjustments which by reason of this Section 11(e) are not required to be
made shall be carried forward and taken into account in any subsequent
adjustment. All calculations under this Section 11 shall be made
to the nearest cent or to the nearest ten-thousandth of a share of Common Stock
or other share or one-millionth of a share of Preferred Stock, as the case may
be. Notwithstanding the first sentence of this Section 11(e),
any adjustment required by this Section 11 shall be made no later than the
earlier of (i) three (3) 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 Preferred
Stock, thereafter the number of such other shares so receivable upon exercise of
any Right and the Purchase Price thereof shall be subject to adjustment from
time to time in a manner and on terms as nearly equivalent as practicable to the
provisions with respect to the Preferred Stock contained in Sections 11(a),
(b), (c), (e), (g), (h), (i), (j), (k) and (m), and the provisions of
Sections 7, 9, 10, 13 and 14 hereof with respect to the Preferred Stock
shall apply on like terms to any such other shares.
(g) All
Rights originally issued by the Company subsequent to any adjustment made to the
Purchase Price hereunder shall evidence the right to purchase, at the adjusted
Purchase Price, the number of one one-hundredths of a share of Preferred Stock
purchasable from time to time hereunder upon exercise of the Rights, all subject
to further adjustment as provided herein.
(h) Unless
the Company shall have exercised its election as provided in Section 11(i),
upon each adjustment of the Purchase Price as a result of the calculations made
in Sections 11(b) and (c), each Right outstanding immediately prior to the
making of such adjustment shall thereafter evidence the right to purchase, at
the adjusted Purchase Price, that number of one one-hundredths of a share of
Preferred Stock (calculated to the nearest one millionth) obtained by
(i) multiplying (x) the number of one one-hundredths of a share
covered by a Right immediately prior to this adjustment, by (y) the
Purchase Price in effect immediately prior to such adjustment of the Purchase
Price, and (ii) dividing the product so obtained by the Purchase Price in
effect immediately after such adjustment of the Purchase Price.
(i) The
Company may elect on or after the date of any adjustment of the Purchase Price
to adjust the number of Rights, in lieu of any adjustment in the number of one
one-hundredths of a share of Preferred Stock purchasable upon the exercise of a
Right. Each of the Rights outstanding after the adjustment in the
number of Rights shall be exercisable for the number of one one-hundredths of a
share of Preferred Stock for which a Right was exercisable immediately prior to
such adjustment. Each Right held of record prior to such adjustment
of the number of Rights shall become that number of Rights (calculated to the
nearest one ten-thousandth) obtained by dividing the Purchase Price in effect
immediately prior to adjustment of the Purchase Price by the Purchase Price in
effect immediately after adjustment of the Purchase Price. The
Company shall make a public announcement (with prompt written notice 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 (10) days later than the
date of the public announcement. If Rights Certificates have been
issued, upon each adjustment of the number of Rights pursuant to this
Section 11(i), the Company shall, as promptly as practicable, cause to be
distributed to holders of record of Rights Certificates on such record date
Rights Certificates evidencing, subject to Section 14 hereof, the
additional Rights to which such holders shall be entitled as a result of such
adjustment, or, at the option of the Company, shall cause to be distributed to
such holders of record in substitution and replacement for the Rights
Certificates held by such holders prior to the date of adjustment, and upon
surrender thereof, if required by the Company, new Rights Certificates
evidencing all the Rights to which such holders shall be entitled after such
adjustment. Rights Certificates so to be distributed shall be issued,
executed and delivered by the Company and countersigned and delivered by the
Rights Agent in the manner provided for herein (and may bear, at the option of
the Company, the adjusted Purchase Price) and shall be registered in the names
of the holders of record of Rights Certificates on the record date specified in
the public announcement.
(j) Irrespective
of any adjustment or change in the Purchase Price or the number of one
one-hundredths of a share of Preferred Stock issuable upon the exercise of the
Rights, the Rights Certificates theretofore and thereafter issued may continue
to express the Purchase Price per one one-hundredths of a share and the number
of one one-hundredths of a share which were expressed in the initial Rights
Certificates issued hereunder.
(k) Before
taking any action that would cause an adjustment reducing the Purchase Price
below the then par or stated value, if any, of the number of one one-hundredths
of a share of Preferred Stock issuable upon exercise of the Rights, the Company
shall take any corporate action which may, in the opinion of its counsel, be
necessary in order that the Company may validly and legally issue fully paid and
nonassessable such number of one one-hundredths of a share of Preferred Stock at
such adjusted Purchase Price.
(l) In any
case in which this Section 11 shall require that an adjustment in the
Purchase Price be made effective as of a record date for a specified event, the
Company may elect to defer (with prompt written notice thereof to the Rights
Agent) until the occurrence of such event the issuance to the holder of any
Right exercised after such record date the number of one one-hundredths of a
share of Preferred Stock and other capital stock or securities of the Company,
if any, issuable upon such exercise over and above the number of one
one-hundredths of a share of Preferred Stock and other capital stock or
securities of the Company, if any, issuable upon such exercise on the basis of
the Purchase Price in effect prior to such adjustment; provided, however, that the
Company shall deliver to such holder a due ▇▇▇▇ or other appropriate instrument
evidencing such holder’s right to receive such additional shares (fractional or
otherwise) or securities upon the occurrence of the event requiring such
adjustment.
(m) Anything
in this Section 11 to the contrary notwithstanding, the Company shall be
entitled to make such reductions in the Purchase Price, in addition to those
adjustments expressly required by this Section 11, as and to the extent
that in their good faith judgment the Board shall determine to be advisable in
order that any (i) consolidation or subdivision of the Preferred Stock,
(ii) issuance wholly for cash of any shares of Preferred Stock at less than
the current market price, (iii) issuance wholly for cash of shares of
Preferred Stock or securities which by their terms are convertible into or
exchangeable for shares of Preferred Stock, (iv) stock dividend or
(v) issuance of rights, options or warrants referred to in this
Section 11, hereafter made by the Company to holders of its Preferred Stock
shall not be taxable to such stockholders.
(n) The
Company covenants and agrees that it shall not, at any time after the
Distribution Date, (i) consolidate with any other Person (other than a
Subsidiary of the Company in a transaction which complies with
Section 11(o) hereof), (ii) merge with or into any other Person (other
than a Subsidiary of the Company in a transaction which complies with
Section 11(o) hereof), or (iii) sell or transfer (or permit any
Subsidiary to sell or transfer), in one transaction, or a series of related
transactions, assets or earning power aggregating more than fifty percent (50%)
of the assets or earning power of the Company and its Subsidiaries (taken as a
whole) to any other Person or Persons (other than the Company and or any of its
Subsidiaries in one or more transactions each of which complies with
Section 11(o) hereof), if (x) at the time of or immediately after such
consolidation, merger or sale there are any rights, warrants or other
instruments or securities outstanding or agreements in effect which would
substantially diminish or otherwise eliminate the benefits intended to be
afforded by the Rights or (y) prior to, simultaneously with or immediately
after such consolidation, merger or sale, the stockholders of the Person who
constitutes, or would constitute, the “Principal Party” for the purposes of
Section 13(a) hereof shall have received a distribution of Rights
previously owned by such Person or any of its Affiliates and
Associates.
(o) The
Company covenants and agrees that, after the Distribution Date, it will not,
except as permitted by Section 23, Section 24 or Section 27
hereof, take (or permit any Subsidiary to take) any action if at the time such
action is taken it is reasonably foreseeable that such action will diminish
substantially or otherwise eliminate the benefits intended to be afforded by the
Rights.
(p) Anything
in this Agreement to the contrary notwithstanding, in the event that the Company
shall at any time after the Rights Dividend Declaration Date and prior to the
Distribution Date (i) declare a dividend on the outstanding shares of
Common Stock payable in shares of Common Stock, (ii) subdivide the
outstanding Common Stock, or (iii) combine the outstanding Common Stock
into a smaller number of shares, the number of Rights associated with each share
of Common Stock then outstanding, or issued or delivered thereafter but prior to
the Distribution Date, shall be proportionately adjusted so that the number of
Rights thereafter associated with each share of Common Stock following any such
event shall equal the result obtained by multiplying the number of Rights
associated with each share of Common Stock immediately prior to such event by a
fraction, the numerator of which shall be the total number of shares of Common
Stock outstanding immediately prior to the occurrence of the event and the
denominator of which shall be the total number of shares of Common Stock
outstanding immediately following the occurrence of such event.
Section
12. Certificate of Adjusted Purchase
Price or Number of Shares. Whenever an adjustment is made or
any event affecting the Rights or their exercisability occurs (including without
limitation an event which caused the Rights to become null and void) as provided
in Section 11 and Section 13 hereof, the Company shall
(a) promptly prepare a certificate setting forth such adjustment or
describing such event and a brief, reasonably detailed statement of the facts,
computations and methodology accounting for such adjustment, (b) promptly
file with the Rights Agent, and with each transfer agent for the Preferred Stock
and the Common Stock, a copy of such certificate, and (c) mail a brief
summary thereof to each holder of a Rights Certificate (or, if prior to the
Distribution Date, to each holder of a certificate representing shares of Common
Stock) in accordance with Section 26 hereof. Notwithstanding the
foregoing sentence, the failure of the Company to make such certification or
give such notice shall not affect the validity of such adjustment or the force
or effect of the requirement for such adjustment. The Rights Agent
shall be fully protected in relying on any such certificate and on any
adjustment or statement therein contained and shall have no duty or liability
with respect to, and shall not be deemed to have knowledge of, any adjustment or
any such event unless and until it shall have received any such
certificate..
Section
13. Consolidation,
Merger or Sale or Transfer of Assets or Earning Power.
(a) In the
event that, following the time any Person becomes an Acquiring Person, 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 fifty percent (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), 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, nonassessable and freely tradable
shares of Common Stock of the Principal Party (as such term is hereinafter
defined), not subject to any liens, encumbrances, rights of first refusal or
other adverse claims, as shall be equal to the result obtained by
(1) multiplying the then current Purchase Price by the number of one
one-hundredths of a share of Preferred Stock for which a Right is exercisable
immediately prior to the first occurrence of a Section 13 Event (or, if a
Section 11(a)(ii) Event has occurred prior to the first occurrence of a
Section 13 Event, multiplying the number of such one one-hundredths of a
share for which a Right was exercisable immediately prior to the first
occurrence of a Section 11(a)(ii) Event by the Purchase Price in effect
immediately prior to such first occurrence), and (2) dividing that product
(which, following the first occurrence of a Section 13 Event, shall be
referred to as the “Purchase Price” for
each Right and for all purposes of this Agreement) by fifty percent (50%) of the
current market price (determined pursuant to Section 11(d)(i) hereof) per
share of the Common Stock of such Principal Party on the date of consummation of
such Section 13 Event; (ii) such Principal Party shall thereafter be
liable for, and shall assume, by virtue of such Section 13 Event, all the
obligations and duties of the Company pursuant to this Agreement; (iii) the
term “Company”
shall thereafter be deemed to refer to such Principal Party, it being
specifically intended that the provisions of Section 11 hereof shall apply
only to such Principal Party following the first occurrence of a Section 13
Event; (iv) such Principal Party shall take such steps (including, but not
limited to, the reservation of a sufficient number of shares of its Common
Stock) in connection with the consummation of any such 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; provided, however, that upon
the subsequent occurrence of any merger, consolidation, sale of all or
substantially all assets, recapitalization, reclassification of shares,
reorganization or other extraordinary transaction in respect of such Principal
Party, each holder of a Right shall thereupon be entitled to receive, upon
exercise of a Right and payment of the Purchase Price, such cash, shares,
rights, warrants and other property which such holder would have been entitled
to receive had he, at the time of such transaction, owned the shares of Common
Stock of the Principal Party purchasable upon the exercise of a Right, and such
Principal Party shall take such steps (including, but not limited to,
reservation of shares of stock) as may be necessary to permit the subsequent
exercise of the Rights in accordance with the terms hereof for such cash,
shares, rights, warrants and other property; and (v) the provisions of
Section 11(a)(ii) hereof shall be of no effect following the first
occurrence of any Section 13 Event.
(b) “Principal Party”
shall mean:
(i) in the
case of any transaction described in clause (x) or (y) of the first
sentence of Section 13(a), the Person that is the issuer of any securities
into which shares of Common Stock of the Company are converted in such merger or
consolidation, and if no securities are so issued, the Person that is the other
party to such merger or consolidation; and
(ii) in the
case of any transaction described in clause (z) of the first sentence of
Section 13(a), the Person that is the party receiving the greatest portion
of the assets or earning power transferred pursuant to such transaction or
transactions;
provided, however, that in any
such case, (1) if the Common Stock of such Person is not at such time and
has not been continuously over the preceding twelve (12) month period registered
under Section 12 of the Exchange Act, and such Person is a direct or
indirect Subsidiary of another Person the Common Stock of which is and has been
so registered, “Principal Party” shall refer to such other Person whose Common
Stock is so registered; and (2) in case such Person is a Subsidiary,
directly or indirectly, of more than one Person, the Common Stocks of two or
more of which are and have been so registered, “Principal Party” shall refer to
whichever of such Persons is the issuer of the Common Stock having the greatest
aggregate market value.
(c) If, for
any reason, the Rights cannot be exercised for Common Stock of such Principal
Party as provided in Section 13(a), then each holder of Rights shall have
the right to exchange its Rights for cash from such Principal Party in an amount
equal to the number of shares of Common Stock that it would otherwise be
entitled to purchase times fifty percent (50%) of the current per share market
price, as determined pursuant to Section 11(d) hereof, of such Common Stock
of such Principal Party. If, for any reason, the foregoing
formulation cannot be applied to determine the cash amount into which the Rights
are exchangeable, then the Board, based upon the advice of one or more
nationally recognized investment banking firms, and based upon the total value
of the Company, shall determine such amount reasonably and with good faith to
the holders of Rights. Any such determination shall be final and
binding on the Rights Agent.
(d) 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 duly executed and delivered to the Rights Agent a supplemental
agreement providing for the terms set forth in paragraphs (a) and (b) of
this Section 13 and further providing that, as soon as practicable after
the date of any consolidation, merger or sale of assets mentioned in
paragraph (a) of this Section 13, the Principal Party
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;
(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;
(iii) use its
best efforts, if the Common Stock of the Principal Party shall become listed on
a national securities exchange, to list (or continue the listing of) the Rights
and the securities purchasable upon exercise of the Rights on such securities
exchange and, if the Common Stock of the Principal Party shall not be listed on
a national securities exchange, to cause the Rights and the securities
purchasable upon exercise of the Rights to be reported by any other system then
in use; and
(iv) obtain
waivers of any rights of first refusal or preemptive rights in respect of the
shares of Common Stock of the Principal Party subject to purchase upon exercise
of outstanding Rights.
(e) The
provisions of this Section 13 shall similarly apply to successive mergers
or consolidations or sales or other transfers. In the event that a
Section 13 Event shall occur at any time after the occurrence of a
Section 11(a)(ii) Event, the Rights which have not theretofore been
exercised shall thereafter become exercisable in the manner described in
Section 13(a).
Section
14. Fractional
Rights and Fractional Shares.
(a) The
Company shall not be required to issue fractions of Rights, except prior to the
Distribution Date as provided in Section 11(p) hereof, or to distribute
Rights Certificates which evidence fractional Rights. In lieu of such
fractional Rights, there shall be paid to the registered holders of the Rights
Certificates with regard to which such fractional Rights would otherwise be
issuable, an amount in cash equal to the same fraction of the current market
value of a whole Right. For purposes of this Section 14(a), the
current market value of a whole Right shall be the closing price of the Rights
for the Trading Day immediately prior to the date on which such fractional
Rights would have been otherwise issuable. The closing price of the
Rights for any day shall be the last sale price, regular way, or, in case no
such sale takes place on such day, the average of the closing bid and asked
prices, regular way, in either case as reported in the principal consolidated
transaction reporting system with respect to securities listed or admitted to
trading on the 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 any 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. 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 shall be used.
(b) The
Company shall not be required to issue fractions of shares of Preferred Stock
(other than fractions which are integral multiples of one one-hundredth of a
share of Preferred Stock) upon exercise of the Rights or to distribute
certificates which evidence fractional shares of Preferred Stock (other than
fractions which are integral multiples of one one-hundredth of a share of
Preferred Stock). In lieu of fractional shares of Preferred Stock
that are not integral multiples of one one-hundredth of a share of Preferred
Stock, the Company may pay to the registered holders of Rights Certificates at
the time such Rights are exercised as herein provided an amount in cash equal to
the same fraction of the current market value of one one-hundredth of a share of
Preferred Stock. For purposes of this Section 14(b), the current
market value of one one-hundredth of a share of Preferred Stock shall be
one-hundredth of the closing price of a share of Preferred Stock (as determined
pursuant to Section 11(d)(ii) hereof) for the Trading Day immediately prior
to the date of such exercise.
(c) Following
the occurrence of a Triggering Event, the Company shall not be required to issue
fractions of shares of Common Stock upon exercise of the Rights or 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 (1) share of Common Stock. For purposes of this
Section 14(c), the current market value of one share of Common Stock shall
be the closing price of one share of Common Stock (as determined pursuant to
Section 11(d)(i) hereof) for the Trading Day immediately prior to the date
of such exercise.
(d) Whenever
a payment for fractional Rights or any 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 utilized 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 unless and until the Rights Agent shall
have received such a certificate and sufficient monies.
(e) The
holder of a Right by the acceptance of the Rights expressly waives his right to
receive any fractional Rights or any fractional shares upon exercise of a Right,
except as permitted by this Section 14.
Section
15. Rights of
Action. All rights of action in respect of this Agreement,
excepting the rights of action given to the Rights Agent under Section 18
and Section 20 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 by the Company of
this Agreement and shall be entitled to specific performance of the obligations
hereunder and injunctive relief against actual or threatened violations by the
Company of the obligations hereunder of any Person subject to this
Agreement. 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, judgment decree or ruling (whether
interlocutory or final) issued by a court of competent jurisdiction or by a
governmental, regulatory, self-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 all reasonable efforts to have any such injunction, order, judgment,
decree or ruling lifted or otherwise overturned as soon as
possible.
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 purpose, duly endorsed or accompanied by proper
instruments of transfer and with the appropriate forms and certificates properly
completed and duly executed; and
(c) subject
to Section 6(a) and Section 7(f) hereof, the Company and the Rights
Agent may deem and treat the person in whose name a Rights Certificate (or,
prior to the Distribution Date, the associated Common Stock certificate) is
registered as the absolute owner thereof and of the Rights evidenced thereby
(notwithstanding any notations of ownership or writing on the Rights
Certificates or the associated Common Stock certificate made by anyone other
than the Company or the Rights Agent) for all purposes whatsoever, and neither
the Company nor the Rights Agent shall be required to be affected by any notice
to the contrary.
Section
17. Rights Certificate Holder Not Deemed
a Stockholder. No holder, as such, of any Rights Certificate
shall be entitled to vote, receive dividends or be deemed for any purpose the
holder of the number of one one-hundredths of a share of Preferred Stock or any
other securities of the Company which may at any time be issuable on the
exercise of the Rights represented thereby, nor shall anything contained herein
or in any Rights Certificate be construed to confer upon the holder of any
Rights Certificate, as such, any of the rights of a stockholder of the Company
or any right to vote for the election of directors or upon any matter submitted
to stockholders at any meeting thereof, or to give or withhold consent to any
corporate action, or to receive notice of meetings or other actions affecting
stockholders (except as provided in Section 25 hereof), or to receive
dividends or subscription rights, or otherwise, until the Right or Rights
evidenced by such Rights Certificate shall have been exercised in accordance
with the provisions hereof.
Section
18. Concerning
the Rights Agent.
(a) The
Company agrees to pay to the Rights Agent reasonable compensation for all
services rendered by it hereunder and, from time to time, on demand of the
Rights Agent, its reasonable expenses and counsel fees and disbursements and
other disbursements incurred in the preparation, 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 (including,
without limitation, the reasonable fees and expenses of legal counsel) for any
action taken, suffered or omitted by the Rights Agent in connection with the
acceptance, administration, exercise and performance of its duties under this
Agreement, including the costs and expenses of defending against any claim of
liability in the premises and of enforcing this right of indemnification; provided, however, that the
Company shall not be liable under this Section 18(a) to the extent a court
of competent jurisdiction shall have determined by a final, non-appealable
order, judgment, decree or ruling that such loss, liability, damage, judgment,
fine, penalty, claim, demand, settlement, cost or expense resulted from any
action taken, suffered or omitted by the Rights Agent through its gross
negligence, bad faith or willful misconduct. The provisions of this
Section 18 and Section 20 hereof shall survive the termination of this
Agreement, the exercise or expiration of the Rights and the resignation,
replacement or removal of the Rights Agent.
(b) The
Rights Agent shall be authorized and protected and shall incur no liability for
or in respect of any action taken, suffered or omitted by it in connection with
its acceptance and administration of this Agreement and the exercise and
performance of its duties hereunder in reliance upon any Rights Certificate or
certificate for Common Stock or for other securities of the Company, instrument
of assignment or transfer, power of attorney, endorsement, affidavit, letter,
notice, direction, consent, certificate, statement, or other paper or document
believed by it to be genuine and to be signed, executed and, where necessary,
verified or acknowledged, by the proper Person or Persons, or otherwise upon the
advice of counsel as set forth in Section 20 hereof. The Rights
Agent shall not be deemed to have knowledge or any event of which it was
supposed to have received notice of hereunder, and the Rights Agent shall be
fully protected and shall incur no liability for failing to take action in
connection therewith unless and until it has received such notice in
writing.
Section
19. Merger
or Consolidation or Change of Name of Rights Agent.
(a) Any
Person into which the Rights Agent or any successor Rights Agent may be merged
or with which it may be consolidated, or any Person resulting from any merger or
consolidation to which the Rights Agent or any successor Rights Agent shall be a
party, or any Person succeeding to the shareholder services business of the
Rights Agent or any successor Rights Agent, shall be the successor to the Rights
Agent under this Agreement without the execution or filing of any paper or any
further act on the part of any of the parties hereto; provided, however, that such
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 Rights Agent 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. Rights and Duties of Rights
Agent. The Rights Agent undertakes to perform only the duties
and obligations expressly imposed by this Agreement (and no implied duties) 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 or an employee of the Rights Agent), and the advice or opinion of such
counsel shall be full and complete authorization and protection to the Rights
Agent as to, and the Rights Agent shall incur no liability for or in respect of,
any action taken, suffered or omitted by it 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 to take any action hereunder such fact or matter (unless
other evidence in respect thereof be herein specifically prescribed) may be
deemed to be conclusively proved and established by a certificate signed by the
Chairman of the Board, the President, any Vice President, the Treasurer, any
Assistant Treasurer, the Secretary or any Assistant Secretary of the Company and
delivered to the Rights Agent; and such certificate shall be full and complete
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
by it under the provisions of this Agreement in reliance upon such
certificate.
(c) The
Rights Agent shall be liable hereunder to the Company and any other Person only
for its own gross negligence, bad faith or willful misconduct (which gross
negligence, bad faith or willful misconduct must be determined by a final,
non-appealable judgment of a court of competent
jurisdiction). Anything to the contrary notwithstanding, in no event
shall the Rights Agent be liable for special, punitive, indirect, consequential
or incidental loss or damage of any kind whatsoever (including but not limited
to lost profits), even if the Rights Agent has been advised of the likelihood of
such loss or damage. Any liability of the Rights Agent under this
Agreement will be limited to the amount of annual fees paid by the Company to
the Rights Agent.
(d) The
Rights Agent shall not be liable for or by reason of any of the statements of
fact or recitals contained in this Agreement or in the Rights Certificates or be
required to verify the same (except as to its countersignature on such Rights
Certificates), but all such statements and recitals are and shall be deemed to
have been made by the Company only.
(e) The
Rights Agent shall not have any liability for or be under any responsibility
with respect to the validity of this Agreement or the execution and delivery
hereof (except the due execution hereof by the Rights Agent) or with respect to
the validity or execution of any Rights Certificate (except its countersignature
thereof); nor shall it be responsible for any breach by the Company of any
covenant or condition contained in this Agreement or in any Rights Certificate;
nor shall it be responsible for any change in the exercisability of the Rights
(including the Rights becoming null and void pursuant to Section 11 hereof)
or any change or adjustment required under the provisions of Section 11 or
Section 13 hereof or responsible for the manner, method or amount of any
such change or adjustment or the ascertaining of the existence of facts that
would require any such change or adjustment (except with respect to the exercise
of Rights evidenced by Rights Certificates after receipt of the certificate
described in Section 12 hereof, upon which the Rights Agent may rely); nor
shall it by any act hereunder be deemed to make any representation or warranty
as to the authorization or reservation of any shares of Common Stock or
Preferred Stock to be issued pursuant to this Agreement or any Rights
Certificate or as to whether any shares of Common Stock or Preferred Stock will,
when so issued, be validly authorized and issued, fully paid and
nonassessable.
(f) The
Company agrees that it will perform, execute, acknowledge and deliver or cause
to be performed, executed, acknowledged and delivered all such further and other
acts, instruments and assurances as may reasonably be required by the Rights
Agent for the carrying out or performing by the Rights Agent of the provisions
of this Agreement.
(g) The
Rights Agent is hereby authorized and directed to accept instructions with
respect to the performance of its duties hereunder from the Chairman of the
Board, the President, any Vice President, the Secretary, any Assistant
Secretary, the Treasurer or any Assistant Treasurer of the Company, and to apply
to such officers for advice or instructions in connection with its duties, and
such instructions shall be full authorization and protection to the Rights Agent
and the Rights Agent shall not be liable for any action taken, suffered or
omitted by it in accordance with instructions of any such officer or for any
delay in action while waiting for those instructions. The Rights
Agent shall be fully authorized and protected in relying upon the most recent
instructions received by any such officer. Any application by the
Rights Agent for written instructions from the Company may, at the option of the
Rights Agent, set forth in writing any action proposed to be taken, suffered or
omitted by the Rights Agent under this Agreement and the date on and/or after
which such action shall be taken or suffered or such omission shall be
effective. The Rights Agent shall not be liable for any action taken,
suffered or omitted by it in accordance with a proposal included in any such
application on or after the date specified in such application (which date shall
not be less than five Business Days after the date any officer of the Company
actually receives such application, unless any such officer shall have consented
in writing to an earlier date) unless, prior to taking any such action (or the
effective date in the case of an omission), the Rights Agent shall have received
written instructions in response to such application specifying the action to be
taken, suffered or omitted.
(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 the Rights Agent were not Rights
Agent under this Agreement. Nothing herein shall preclude the Rights
Agent or any such stockholder, affiliate, director, officer or employee from
acting in any other capacity for the Company or for any other
Person.
(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 (through its directors,
officer and employees) 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 or bad faith in the selection and continued employment thereof
(which gross negligence or bad faith must be determined by a final,
non-appealable judgment of a court of competent jurisdiction.
(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 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 Right Certificate surrendered to the Rights Agent for exercise or
transfer, the certificate contained in the form of assignment or the form of
election to purchase set forth on the reverse thereof, as the case may be, has
either not been properly completed or indicates an affirmative response to
clause 1 and/or 2 thereof, the Rights Agent shall not take any further
action with respect to such requested exercise or transfer without first
consulting with the Company.
Section
21. Change of Rights
Agent. The Rights Agent or any successor Rights Agent may
resign and be discharged from its duties under this Agreement upon thirty (30)
days’ notice in writing, mailed to the Company, and to each transfer agent of
the Common Stock and Preferred Stock by registered or certified mail, and to the
holders of the Rights Certificates by first-class mail. The Company
may remove the Rights Agent or any successor Rights Agent upon thirty (30) days’
notice in writing, mailed to the Rights Agent or successor Rights Agent, as the
case may be, and to each transfer agent of the Common Stock and Preferred Stock,
by registered or certified mail, and to the holders of the Rights Certificates
by first-class mail. If the Rights Agent shall resign or be removed
or shall otherwise become incapable of acting, 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 a
Rights Certificate (who shall, with such notice, submit his Rights Certificate
for inspection by the Company), then any registered holder of any Rights
Certificate may apply to any court of competent jurisdiction for an 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 organized and
doing business under the law of the United States or of any state of the United
States, in good standing, which is authorized under such laws to exercise stock
transfer or corporate trust powers and is subject to supervision or examination
by federal or state authority and which has at the time of its appointment as
Rights Agent a combined capital and surplus of at least $100,000,000, or
(b) an Affiliate of such a Person. After appointment, the
successor Rights Agent shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named as Rights Agent without
further act or deed; but the predecessor Rights Agent shall deliver and transfer
to the successor Rights Agent any property at the time held by it hereunder, and
execute and deliver any further assurance, conveyance, act or deed necessary for
the purpose. Not later than the effective date of any such
appointment, the Company shall file notice thereof in writing with the
predecessor Rights Agent and each transfer agent of the Common Stock and the
Preferred Stock, and mail a notice thereof in writing to the registered holders
of the Rights Certificates. Failure to give any notice provided for
in this Section 21, however, or any defect therein, shall not affect the
legality or validity of the resignation or removal of the Rights Agent or the
appointment of the successor Rights Agent, as the case may be.
Section
22. Issuance of New Rights
Certificates. Notwithstanding any of the provisions of this
Agreement or of the Rights to the contrary, the Company may, at its option,
issue new Rights Certificates evidencing Rights in such form as may be approved
by its Board 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, issue Rights Certificates representing the appropriate number of Rights
in connection with such issuance or sale; provided, however, that
(i) no such Rights Certificate shall be issued if, and to the extent that,
the Company shall be advised by counsel that such issuance would create a
significant risk of material adverse tax consequences to the Company or the
Person to whom such Rights Certificate would be issued, and (ii) no such
Rights Certificate shall be issued if, and to the extent that appropriate
adjustment shall otherwise have been made in lieu of the issuance
thereof.
Section
23. Redemption.
(a) The Board
may, at its option, at any time prior to the earlier of (i) the Close of
Business on the tenth (10th) day
following but not including 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 (10th) day
following the Record Date, or (ii) the Final Expiration Date, redeem all
but not less than all of the then outstanding Rights at a redemption price of
$0.01 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”).
(b) (i) In
the event the Company receives a Qualified Offer and the Board has not redeemed
the Rights, in accordance with Section 23(a) above, within ninety (90) days
of the date such Qualified Offer is received by the Company (the “Offer Date”), then
the Board shall call a special meeting of stockholders for the purpose of voting
on a resolution (i) accepting such Qualified Offer, as such Qualified Offer may
be amended or revised by the offering Person from time to time to increase the
price per share to be paid to holders of shares of Common Stock, and (ii)
authorizing the redemption of all but not less than all of the then outstanding
Rights at the Redemption Price pursuant to subparagraph (b)(ii) of this
Section 23. The special meeting shall be held on a date selected
by the Board, which date shall not be less than ninety (90) or more than 120
days (subject to extension to satisfy any then outstanding regulatory or
information delivery requirements) after the later of (A) the Offer Date, and
(B) the date of any previously scheduled meeting of stockholders held (or to be
held) within sixty (60) days after the Offer Date; provided, however, that if (x)
such other meeting shall have been called for the purpose of voting on a
resolution with respect to another Qualified Offer and (y) the Offer Date is not
later than 15 days after the date such other Qualified Offer was received by the
Company, then both the resolution relating to the first Qualified Offer and the
resolution relating to such other Qualified Offer shall be voted on at such
special meeting (in addition to any other matters or resolutions to be
considered at such meeting); provided, however, that in any
12-month period the Company shall not be required to hold more than one special
meeting with respect to a Qualified Offer from any given potential Acquiring
Person (including any Affiliates or Associates); and provided further, that if the
Company shall publicly announce (with prompt written notice thereof to the
Rights Agent) that the Board has determined that it is in the best interest of
stockholders to seek an alternative transaction so as to obtain greater value
for stockholders than that provided by such Qualified Offer, then such vote
shall be postponed to a meeting called by the Board which shall occur within 90
days after the date of such announcement. The Board shall set a date for
determining the stockholders of record entitled to notice of and to vote at the
special meeting in accordance with the Company’s Certificate of Incorporation,
By-Laws and applicable law. At the offering Person’s request, the Company shall
include in any proxy soliciting material prepared by it in connection with the
special meeting proxy soliciting material submitted by the offering Person;
provided, however, that the
offering Person, by written agreement with the Company contained in or delivered
with such request, shall have indemnified the Company against any and all
liabilities resulting from any statements found to be defamatory, misstatements,
misleading statements or omissions contained in or omitted from the offering
Person’s proxy soliciting materials and have agreed to pay the Company’s
incremental costs incurred as a result of including such material in the
Company’s proxy soliciting material. Notwithstanding anything to the contrary
contained this Agreement, if the Board determines that it is in the best
interests of stockholders to seek an alternative transaction so as to obtain
greater value for stockholders than that provided by any Qualified Offer, the
Company shall be entitled to include information relating to such alternative
transaction in the proxy soliciting material prepared by it in connection with
the special meeting.
(ii) If
at the special meeting the resolution to accept the Qualified Offer and
authorize the redemption, or a resolution with respect to another Qualified
Offer, receives the affirmative vote of at least a majority of the shares of
Common Stock outstanding and entitled to vote as of the record date of the
special meeting, not giving effect to any affirmative votes cast by the offering
Person or any of its Affiliates, then all of the Rights shall be redeemed by
such stockholder action at the Redemption Price, effective immediately prior to
the consummation of the Qualified Offer (provided that the Qualified Offer is
consummated prior to sixty (60) days after the date of the special
meeting).
(iii)
Nothing in this subparagraph (b) shall be construed as limiting or
prohibiting the Company or any offering Person from proposing or engaging in any
acquisition, disposition or other transfer of any securities of the Company, any
merger or consolidation involving the Company, any sale or other transfer of
assets of the Company, any liquidation, dissolution or winding-up of the
Company, or any other business combination or other transaction, or any other
action by the Company or such offering Person; provided, however, that the
holders of Rights shall have the rights set forth in this Rights Agreement with
respect to any such acquisition, disposition, transfer, merger, consolidation,
sale, liquidation, dissolution, winding-up, business combination, transaction or
action.
(c) Immediately
upon the action of the Board ordering the redemption of the Rights pursuant to
subparagraph (a) of this Section 23, or upon effectiveness of the
redemption of the Rights pursuant to subparagraph (b) of this
Section 23, and without any further action and without any notice, the
right to exercise the Rights will terminate and the only right thereafter of the
holders of Rights shall be to receive the Redemption Price for each Right so
held. Promptly after the action of the Board or stockholders, as applicable,
ordering the redemption of the Rights, the Company shall give public notice of
such redemption (with prompt written notice thereof to the Rights Agent); provided, however, that the
failure to give, or any defect in, any such notice shall not affect the legality
or validity of such redemption. The Company shall promptly mail a
notice of any such redemption to all the holders of the then outstanding Rights
at their last addresses as they appear upon the registry books of the Rights
Agent or, prior to the Distribution Date, on the registry books of the Transfer
Agent for the Common Stock. Any notice which is mailed in the manner
herein provided shall be deemed given, whether or not the holder receives the
notice. Each such notice of redemption will state the method by which the
payment of the Redemption Price will be made. Neither the Company nor any of its
Affiliates or Associates may redeem, acquire or purchase for value any Rights at
any time in any manner other than that specifically set forth in this
Section 23 or in Section 24 hereof, and other than in connection with
the purchase, acquisition or redemption of shares of Common Stock prior to the
Distribution Date.
(d) The
Company may, at its option, pay the Redemption Price in cash, shares of Common
Stock (based on the “current market value” as defined in Section 11(d)(i)
hereof) of the Common Stock as of the time of redemption) or any other form of
consideration deemed appropriate by the Board.
Section
24. Exchange.
(a) Subject
to applicable laws, rules and regulations, and subject to subsection (c)
below, the Company may, at its option, by majority vote of the Board, 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 Common Stock at an exchange ratio of one (1) 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 “Ratio of
Exchange”). Notwithstanding the foregoing, the Board 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 entity holding Common Stock for or
pursuant to the terms of any such plan), together with all Affiliates and
Associates of such Person, becomes the Beneficial Owner of fifty percent (50%)
or more of the Common Stock then outstanding.
(b) Immediately
upon the action of the Board 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 a holder of such rights shall be to receive that number
of shares of Common Stock equal to the number of such Rights held by such holder
multiplied by the Ratio of Exchange. The Company shall promptly give
public notice of any such exchange (with prompt written notice thereof to the
Rights Agent); provided, however, that the
failure to give, or any defect in, such notice shall not affect the legality or
validity of such exchange. The Company shall promptly 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 null and void pursuant to the provisions of
Section 7(e) hereof) held by each holder of Rights.
(c) In the
event that there shall not be sufficient shares of Common Stock issued but not
outstanding or authorized but unissued to permit any exchange of Rights as
contemplated in accordance with Section 24(a), the Company shall either
take such action as may be necessary to authorize additional Common Stock for
issuance upon exchange of the Rights or alternatively, at the option of a
majority of the Board, with respect to each Right (i) pay cash in an amount
equal to the Current Value (as hereinafter defined), in lieu of issuing Common
Stock in exchange therefor, or (ii) issue debt or equity securities or a
combination thereof, having a value equal to the Current Value (as defined
below), in lieu of issuing Common Stock in exchange for each such Right, where
the value of such securities shall be determined by a nationally recognized
investment banking firm selected by the Board by majority vote of the Board, or
(iii) deliver any combination of cash, property, Common Stock and/or other
securities having a value equal to the Current Value in exchange for each
Right. For purposes of this Section 24(c) only, the Current
Value shall mean the product of the current per share market price of Common
Stock (determined pursuant to Section 11(d) on the date of the occurrence
of the event described above in subparagraph (a)) multiplied by the number
of shares of Common Stock for which the Right otherwise would be exchangeable if
there were sufficient shares available. To the extent that the
Company determines that some action need be taken pursuant to clauses (i),
(ii) or (iii) of this Section 24(c), the Board may temporarily suspend the
exercisability of the Rights for a period of up to sixty (60) days following the
date on which the event described in Section 24(a) shall have occurred, in
order to seek any authorization of additional shares of Common Stock and/or to
decide the appropriate form of distribution to be made pursuant to the above
provision and to determine the value thereof. In the event of any
such suspension, the Company shall issue a public announcement stating that the
exercisability of the Rights has been temporarily suspended (with prompt written
notice thereof ot the Rights Agent).
(d) The
Company shall not be required to issue fractions of shares of Common Stock or to
distribute certificates which evidence fractional shares of Common
Stock. In lieu of such fractional shares of Common Stock, there shall
be paid to the registered holders of the Rights Certificates with regard to
which such fractional shares of Common Stock would otherwise be issuable, an
amount in cash equal to the same fraction of the current per share market value
of a whole share of Common Stock (as determined pursuant to the second sentence
of Section 11(d) hereof).
(e) The
Company may, at its option, by majority vote of the Board, at any time before
any Person has become an Acquiring Person, exchange all or part of the then
outstanding Rights for rights of substantially equivalent value, as determined
reasonably and with good faith by the Board, based upon the advice of one or
more nationally recognized investment banking firms.
(f) Immediately
upon the action of the Board ordering the exchange of any Rights pursuant to
subsection (e) 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 a holder of such Rights shall be to receive that number
of rights in exchange therefor as has been determined by the Board in accordance
with subsection (e) above. The Company shall give public notice
of any such exchange (with prompt written notice thereof to the Rights Agent);
provided, however, that the
failure to give, or any defect in, such notice shall not affect the validity of
such exchange. The Company shall mail a notice of any such exchange
to all of the holders of such Rights at their last addresses as they appear upon
the registry books of the transfer agent for the Common Stock of the
Company. Any notice which is mailed in the manner herein provided
shall be deemed given, whether or not the holder receives the
notice. Each such notice of exchange will state the method by which
the exchange of the Rights will be effected.
Section
25. Notice
of Certain Events.
(a) In case
the Company shall propose, at any time after the Distribution Date, (i) to
pay any dividend payable in stock of any class to the holders of Preferred Stock
or to make any other distribution to the holders of Preferred Stock (other than
a regular cash dividend out of earnings or retained earnings of the Company), or
(ii) to offer to the holders of Preferred Stock rights or warrants to
subscribe for or to purchase any additional shares of Preferred Stock or shares
of stock of any class or any other securities, rights or options, or
(iii) to effect any reclassification of its Preferred Stock (other than a
reclassification involving only the subdivision of outstanding shares of
Preferred Stock), or (iv) to effect any consolidation or merger into or
with any other Person (other than a Subsidiary of the Company in a transaction
which complies with Section 11(o) hereof), or to effect any sale or other
transfer (or to permit one or more of its Subsidiaries to effect any sale or
other transfer), in one transaction or a series of related transactions, of more
than fifty percent (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, or (vi) to declare or pay any
dividend on the Common Stock payable in Common Stock or to effect a subdivision,
consolidation or combination of the Common Stock (by reclassification or
otherwise than by payment in dividends in Common Stock), then, in each such
case, the Company shall give to the Rights Agent and to the extent feasible to
each holder of a Rights Certificate, in accordance with Section 26 hereof,
a notice of such proposed action, which shall specify the record date for the
purposes of such stock dividend, distribution of rights or warrants, or the date
on which such reclassification, consolidation, merger, sale, transfer,
liquidation, dissolution, or winding up is to take place and the date of
participation therein by the holders of the shares of Preferred Stock, if any
such date is to be fixed, and such notice shall be so given in the case of any
action covered by clause (i) or (ii) above at least ten (10) days prior to
the record date for determining holders of the shares of Preferred Stock for
purposes of such action, and in the case of any such other action, at least ten
(10) days prior to the date of the taking of such proposed action or the date of
participation therein by the holders of the shares of Preferred Stock whichever
shall be the earlier.
(b) In case
any of the events set forth in Section 11(a)(ii) hereof shall occur, then,
in any such case, (i) the Company shall as soon as practicable thereafter
give to the Rights Agent and to each holder of a Rights Certificate, to the
extent feasible and in accordance with Section 26 hereof, a notice of the
occurrence of such event, which shall specify the event and the consequences of
the event to holders of Rights under Section 11(a)(ii) hereof, and
(ii) all references in the preceding paragraph to Preferred Stock shall be
deemed thereafter to refer to Common Stock and/or, if appropriate, other
securities.
Section
26. Notices. Notices or
demands authorized by this Agreement to be given or made by the Rights Agent or
by the holder of any Rights Certificate to or on the Company shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed (until another address is filed in writing with the Rights Agent) as
follows:
CKE
Restaurants, Inc.
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇. ▇
▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief
Financial Officer
Subject
to the provisions of Section 21, any notice or demand authorized by this
Agreement to be given or made by the Company or by the holder of any Rights
Certificate to or on the Rights Agent shall be sufficiently given or made if
sent by first-class mail, postage prepaid, addressed (until another address is
filed in writing with the Company) as follows:
Mellon
Investor Services LLC
BNY
Mellon Shareowner Services
▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Relationship
Manager
With a
copy to:
Mellon
Investor Services LLC
BNY
Mellon Shareowner Services
Newport
Office Center VII
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Legal
Development
Notices
or demands authorized by this Agreement to be given or made by the Company or
the Rights Agent to the holder of any Rights Certificate (or, if prior to the
Distribution Date, to the holder of certificates representing shares of Common
Stock) shall be sufficiently given or made if sent by first-class mail, postage
prepaid, addressed to such holder at the address of such holder as shown on the
registry books of the Company.
Section
27. Supplements and
Amendments. This Agreement may be supplemented or amended at
the times and for the purposes set forth below, any such supplement or amendment
to be evidenced by a writing signed by the Company and the Rights
Agent. The Company (by action of the Board) may and the Rights Agent
shall, if the Company so directs, supplement or amend any provision of this
Agreement from time to time and without the approval of any holders
of shares of Common Stock, including, without limitation, 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, amend, or supplement the provisions hereunder in any
manner which the Company may deem necessary or desirable; provided, however,
that from and after such time as any Person becomes an Acquiring Person, this
Agreement shall not be supplemented or amended in any manner that would
adversely affect the interests of the holders of Rights (other than Rights that
have become null and void pursuant to Section 7(e) hereof) as such or cause this
Agreement to become amendable other than in accordance with this Section
27. Without limiting the foregoing, the Company (by action of the
Board), may at any time before any Person becomes an Acquiring Person amend this
Agreement to make the provisions of this Agreement inapplicable to a particular
transaction by which a Person might otherwise become an Acquiring Person or to
otherwise alter the terms and conditions of this Agreement as they may apply
with respect to any such provision. 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 27, the Rights Agent shall execute such supplement or amendment;
provided, that, the Rights
Agent may, but shall not be obligated to enter into any supplement or amendment
that effects the Rights Agent’s own rights, duties, obligations or immunities
under this Agreement. 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
28. Successors. All the
covenants and provisions of this Agreement by or for the benefit of the Company
or the Rights Agent shall bind and inure to the benefit of their respective
successors and assigns hereunder.
Section
29. Determinations and Actions by the
Board. 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 shall have the exclusive power and authority to administer this Agreement
and to exercise all rights and powers specifically granted to the Board or to
the Company, or as may be necessary or advisable in the administration of this
Agreement, including, without limitation, the right and power to
(i) interpret the provisions of this Agreement, and (ii) make all
determinations deemed necessary or advisable for the administration of this
Agreement (including a determination to redeem or not redeem the Rights or to
amend the Agreement). All such actions, calculations, interpretations
and determinations (including, for purposes of clause (y) below, all
omissions with respect to the foregoing) which are done or made by the Board in
good faith, shall (x) be final, conclusive and binding on the Company, the
Rights Agent, the holders of the Rights and all other parties, and (y) not
subject the Board to any liability to the holders of the Rights. The
Rights Agent shall be entitled to assume the Board acted in good faith and shall
be fully protected and incur no liability in the Rights Agent’s reliance
thereon.
Section
30. Benefits of this
Agreement. Nothing in this Agreement shall be construed to
give to any person other than the Company, the Rights Agent and the registered
holders of the Rights Certificates (and, prior to the Distribution Date,
registered holders of the Common Stock) any legal or equitable right, remedy or
claim under this Agreement; but this Agreement shall be for the sole and
exclusive benefit of the Company, the Rights Agent and the registered holders of
the Rights Certificates (and, prior to the Distribution Date, registered holders
of the Common Stock).
Section
31. Severability. If
any term, provision, covenant or restriction of this Agreement is held by a
court of competent jurisdiction or other authority to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated; provided, however, that if such
excluded provision shall affect the rights, immunities, duties or obligations of
the Rights Agent, the Rights Agent shall be entitled to resign
immediately. 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 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 and
shall not expire until the Close of Business on the tenth day following the date
of such determination by the Board.
Section
32. Governing Law. This
Agreement, each Right and each Rights Certificate issued hereunder shall be
deemed to be a contract made under the laws of the State of Delaware and for all
purposes shall be governed by and construed in accordance with the laws of such
State applicable to contracts made and to be performed entirely within such
State; provided, however, that the
rights and obligations of the Rights Agent shall be governed and construed in
accordance with the laws of the State of New York applicable to contracts made
to be performed entirely within such state.
Section
33. Counterparts. This
Agreement may be executed in any number of counterparts and each such
counterpart shall for all purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same
instrument.
Section
34. Descriptive
Headings. Descriptive headings of the several Sections of this
Agreement are inserted for convenience only and shall not control or affect the
meaning or construction of any of the provisions hereof.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.
CKE
RESTAURANTS, INC.,
a
Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
Its: President
and Chief Executive Officer
Mellon
Investor Services LLC, as Rights Agent, a New Jersey limited liability
company
By: /s/ ▇▇▇▇
▇▇▇▇
Name: ▇▇▇▇
▇▇▇▇
Its: Relationship
Manager
EXHIBIT
A
Certificate
of Designation of Rights, Preferences and Privileges of
Series A
Junior Participating Preferred Stock
OF
CKE
RESTAURANTS, INC.
Pursuant
to Section 151 of the General Corporation Law
of the
State of Delaware
▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, the President and Chief Executive Officer, and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, the
Executive Vice President and Chief Financial Officer, of CKE Restaurants, Inc.,
a corporation organized and existing under the General Corporation Law of the
State of Delaware, in accordance with the provisions of Section 103
thereof, DO HEREBY CERTIFY:
That
pursuant to the authority conferred upon the Board of Directors by the
Certificate of Incorporation of said Corporation, as amended, the Board of
Directors on December 29, 2008, adopted the following resolution creating a
series of 1,500,000 shares of Preferred Stock designated as Series A Junior
Participating Preferred Stock:
“RESOLVED,
that pursuant to the authority vested in the Board of Directors of the
corporation by the Certificate of Incorporation, the Board of Directors does
hereby provide for the issue of a series of Preferred Stock, $0.01 par value per
share, of the Corporation, to be designated “Series A Junior Participating
Preferred Stock,” initially consisting of 1,500,000 shares and to the extent
that the designations, powers, preferences and relative and other special rights
and the qualifications, limitations and restrictions of the Series A Junior
Participating Preferred Stock are not stated and expressed in the Certificate of
Incorporation, does hereby fix and herein state and express such designations,
powers, preferences and relative and other special rights and the
qualifications, limitations and restrictions thereof, as follows (all terms used
herein which are defined in the Certificate of Incorporation shall be deemed to
have the meanings provided therein):
Section 1. Designation and
Amount. The shares of such series shall be designated as
“Series A Junior Participating Preferred Stock,” par value $0.01 per share,
and the number of shares constituting such series shall be
1,500,000.
Section 2. Dividends and
Distributions.
(A) Subject
to the prior and superior right of the holders of any shares of any series of
Preferred Stock ranking prior and superior to the shares of Series A Junior
Participating Preferred Stock with respect to dividends, the holders of shares
of Series A Junior Participating Preferred Stock shall be entitled to
receive when, as and if declared by the Board of Directors out of funds legally
available for the purpose, quarterly dividends payable in cash on the last day
of March, June, September and December in each year (each such date being
referred to herein as a “Quarterly Dividend Payment Date”), commencing on the
first Quarterly Dividend Payment Date after the first issuance of a share or
fraction of a share of Series A Junior Participating Preferred Stock, in an
amount per share (rounded to the nearest cent) equal to, subject to the
provision for adjustment hereinafter set forth, 100 times the aggregate per
share amount of all cash dividends, and 100 times the aggregate per share amount
(payable in kind) of all non-cash dividends or other distributions other than a
dividend payable in shares of Common Stock or a subdivision of the outstanding
shares of Common Stock (by reclassification or otherwise), declared on the
Common Stock of the Corporation (the “Common Stock”) since the immediately
preceding Quarterly Dividend Payment Date, or, with respect to the first
Quarterly Dividend Payment Date, since the first issuance of any share or
fraction of a share of Series A Junior Participating Preferred
Stock. In the event the Corporation shall at any time after December
29, 2008 (the “Rights Declaration Date”) (i) declare any dividend on Common
Stock payable in shares of Common Stock, (ii) subdivide the outstanding
Common Stock, or (iii) combine the outstanding Common Stock into a smaller
number of shares, then in each such case, the amount to which holders of shares
of Series A Junior Participating Preferred Stock were entitled immediately
prior to such event under the preceding sentence shall be adjusted by
multiplying such amount by a fraction, the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(B) The
Corporation shall declare a dividend or distribution on the Series A Junior
Participating Preferred Stock as provided in paragraph (A) above
immediately after it declares a dividend payable in shares of Common
Stock.
(C) Dividends
shall begin to accrue and be cumulative on outstanding shares of Series A
Junior Participating Preferred Stock from the Quarterly Dividend Payment Date
next preceding the date of issue of such shares of Series A Junior
Participating Preferred Stock, unless the date of issue of such shares is prior
to the record date for the first Quarterly Dividend Payment Date, in which case
dividends on such shares shall begin to accrue from the date of issue of such
shares, or unless the date of issue is a Quarterly Dividend Payment Date or is a
date after the record date for the determination of holders of shares of
Series A Junior Participating Preferred Stock entitled to receive a
quarterly dividend and before such Quarterly Dividend Payment Date, in either of
which events such dividends shall begin to accrue and be cumulative from such
Quarterly Dividend Payment Date. Accrued but unpaid dividends shall
not bear interest. Dividends paid on the shares of Series A
Junior Participating Preferred Stock in an amount less than the total amount of
such dividends at the time accrued and payable on such shares shall be allocated
pro rata on a share-by-share basis among all such shares at the time
outstanding. The Board of Directors may fix a record date for the
determination of holders of shares of Series A Junior Participating
Preferred Stock entitled to receive payment of a dividend or distribution
declared thereon, which record date shall be no more than thirty (30) days prior
to the date fixed for the payment thereof.
Section 3. Voting
Rights. The holders of shares of Series A Junior
Participating Preferred Stock shall have the following voting
rights:
(A) Subject
to the provision for adjustment hereinafter set forth, each share of
Series A Junior Participating Preferred Stock shall entitle the holder
thereof to 100 votes on all matters submitted to a vote of the stockholders of
the Corporation. In the event the Corporation shall at any time after
the Rights Declaration Date (i) declare any dividend on Common Stock
payable in shares of Common Stock, (ii) subdivide the outstanding Common
Stock, or (iii) combine the outstanding Common Stock into a smaller number
of shares, then in each such case the number of votes per share to which holders
of shares of Series A Junior Participating Preferred Stock were entitled
immediately prior to such event shall be adjusted by multiplying such number by
a fraction, the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to such
event.
(B) Except
as otherwise provided herein or by law, the holders of shares of Series A
Junior Participating Preferred Stock and the holders of shares of Common Stock
shall vote together as one class on all matters submitted to a vote of
stockholders of the Corporation.
(C) Except
as required by law, holders of Series A Junior Participating Preferred
Stock shall have no special voting rights and their consent shall not be
required (except to the extent they are entitled to vote with holders of Common
Stock as set forth herein) for taking any corporate action.
Section 4. Certain
Restrictions.
(A) The
Corporation shall not declare any dividend on, make any distribution on, or
redeem or purchase or otherwise acquire for consideration any shares of Common
Stock after the first issuance of a share or fraction of a share of
Series A Junior Participating Preferred Stock unless concurrently therewith
it shall declare a dividend on the Series A Junior Participating Preferred
Stock as required by Section 2 hereof.
(B) Whenever
quarterly dividends or other dividends or distributions payable on the
Series A Junior Participating Preferred Stock as provided in Section 2
are in arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series A Junior
Participating Preferred Stock outstanding shall have been paid in full, the
Corporation shall not:
(i) declare
or pay dividends on, make any other distributions on, or redeem or purchase or
otherwise acquire for consideration any shares of stock ranking junior (either
as to dividends or upon liquidation, dissolution or winding up) to the
Series A Junior Participating Preferred Stock;
(ii) declare
or pay dividends on, make any other distributions on any shares of stock ranking
on a parity (either as to dividends or upon liquidation, dissolution or winding
up) with Series A Junior Participating Preferred Stock, except dividends
paid ratably on the Series A Junior Participating Preferred stock and all
such parity stock on which dividends are payable or in arrears in proportion to
the total amounts to which the holders of all such shares are then
entitled;
(iii) redeem
or purchase or otherwise acquire for consideration shares of any stock ranking
on a parity (either as to dividends or upon liquidation, dissolution or winding
up) with the Series A Junior Participating Preferred Stock, provided that
the Corporation may at any time redeem purchase or otherwise acquire shares of
any such parity stock in exchange for shares of any stock of the Corporation
ranking junior (either as to dividends or upon dissolution, liquidation or
winding up) to the Series A Junior Participating Preferred Stock;
or
(iv) purchase
or otherwise acquire for consideration any shares of Series A Junior
Participating Preferred Stock, or any shares of stock ranking on a parity with
the Series A Junior Participating Preferred Stock, except in accordance
with a purchase offer made in writing or by publication (as determined by the
Board of Directors) to all holders of such shares upon such terms as the Board
of Directors, after consideration of the respective annual dividend rates and
other relative rights and preferences of the respective series and classes,
shall determine in good faith will result in fair and equitable treatment among
the respective series or classes.
(C) The
Corporation shall not permit any subsidiary of the Corporation to purchase or
otherwise acquire for consideration any shares of stock of the Corporation
unless the Corporation could, under paragraph (A) of this Section 4,
purchase or otherwise acquire such shares at such time and in such
manner.
Section 5. Reacquired
Shares. Any shares of Series A Junior Participating
Preferred Stock purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and cancelled promptly after the acquisition
thereof. All such shares shall upon their cancellation become
authorized but unissued shares of Preferred Stock and may be reissued as part of
a new series of Preferred Stock to be created by resolution or resolutions of
the Board of Directors, subject to the conditions and restrictions on issuance
set forth herein.
Section 6. Liquidation, Dissolution or
Winding Up.
(A) Upon
any liquidation (voluntary or otherwise), dissolution or winding up of the
Corporation, no distribution shall be made to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series A Junior Participating Preferred Stock unless,
prior thereto, the holders of shares of Series A Junior Participating
Preferred Stock shall have received an amount equal to accrued and unpaid
dividends and distributions thereon, whether or not declared, to the date of
such payment, plus an amount equal to the greater of (1) $100.00 per share,
provided that in the event the Corporation does not have sufficient assets,
after payment of its liabilities and distribution to holders of Preferred Stock
ranking prior to the Series A Junior Participating Preferred Stock,
available to permit payment in full of the $100.00 per share amount, the amount
required to be paid under this Section 6(A)(1) shall, subject to
Section 6(B) hereof, equal the value of the amount of available assets
divided by the number of outstanding shares of Series A Junior
Participating Preferred Stock or (2) subject to the provisions for
adjustment hereinafter set forth, 100 times the aggregate per share amount to be
distributed to the holders of Common Stock (the greater of (1) or (2), the
“Series A Liquidation Preference”). In the event the Corporation
shall at any time after the Rights Declaration Date (i) declare any
dividend on Common Stock payable in shares of Common Stock, (ii) subdivide
the outstanding Common Stock, or (iii) combine the outstanding Common Stock
into a smaller number of shares, then in each such case the amount to which
holders of shares of Series A Junior Participating Preferred Stock were
entitled immediately prior to such event under clause (2) of the preceding
sentence shall be adjusted by multiplying such amount by a fraction the
numerator of which is the number of shares of Common Stock that were outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such
event.
(B) In
the event, however, that there are not sufficient assets available to permit
payment in full of the Series A Liquidation Preference and the liquidation
preferences of all other series of Preferred Stock, if any, which rank on a
parity with the Series A Junior Participating Preferred Stock, then such
remaining assets shall be distributed ratably to the holders of such parity
shares in proportion to their respective liquidation preferences.
Section 7. Consolidation, Merger,
etc. In case the Corporation shall enter into any
consolidation, merger, combination or other transaction in which the shares of
Common Stock are exchanged for or changed into other stock or securities, cash
and/or any other property, then in any such case the shares of Series A
Junior Participating Preferred Stock shall at the same time be similarly
exchanged or changed in amount per share (subject to the provision for
adjustment hereinafter set forth) equal to 100 times the aggregate amount of
stock, securities, cash and/or any other property (payable in kind), as the case
may be, into which or for which each share of Common Stock is changed or
exchanged. In the event the Corporation shall at any time after the
Rights Declaration Date (i) declare any dividend on Common Stock payable in
shares of Common Stock, (ii) subdivide the outstanding Common Stock, or
(iii) combine the outstanding Common Stock into a smaller number of shares,
then in each such case the amount set forth in the preceding sentence with
respect to the exchange or change of shares of Series A Junior
Participating Preferred Stock shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to such
event.
Section 8. Redemption. The
shares of Series A Junior Participating Preferred Stock shall not be
redeemable.
Section 9. Ranking. The
Series A Junior Participating Preferred Stock shall rank junior to all
other series of the Corporation’s Preferred Stock as to the payment of dividends
and the distribution of assets, unless the terms of any such series shall
provide otherwise. The Series A Junior Participating Preferred
Stock shall rank senior to the Corporation’s Common Stock.
Section 10. Amendment. The
Certificate of Incorporation of the Corporation shall not be further amended in
any manner which would materially alter or change the powers, preference or
special rights of the Series A Junior Participating Preferred Stock so as
to affect them adversely without the affirmative vote of the holders of a
majority or more of the outstanding shares of Series A Junior Participating
Preferred Stock, voting separately as a class.
Section 11. Fractional
Shares. Series A Junior Participating Preferred Stock may
be issued in fractions of a share which shall entitle the holder, in proportion
to such holder’s fractional shares, to exercise voting rights, receive
dividends, participate in distributions and to have the benefit of all other
rights of holders of Series A Junior Participating Preferred
Stock.
IN
WITNESS WHEREOF, we have executed and subscribed this Certificate and do affirm
the foregoing as true under the penalties of perjury this 29th day of
December, 2008.
By: /s/ ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
Its: President
and Chief Executive Officer
By: /s/ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Its: Executive
Vice President and Chief Financial Officer
EXHIBIT
B
Form
of Rights Certificate
Certificate
No. R-____________ ________
Rights
NOT
EXERCISABLE AFTER 5:00 P.M., NEW YORK CITY TIME, ON DECEMBER 31, 2009, UNLESS
THE RIGHTS ARE PREVIOUSLY REDEEMED, EXCHANGED OR TERMINATED. THE
RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT $0.01 PER
RIGHT ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN
CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON OR AN AFFILIATE
OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE 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 RIGHTS AGREEMENT.]1
RIGHTS
CERTIFICATE
CKE
RESTAURANTS, INC.
This
certifies that __________________________,
or registered assigns, is the registered owner of the number of Rights set forth
above, each of which entitles the owner thereof, subject to the terms,
provisions and conditions of the Rights Agreement, dated as of January 5, 2009,
as such agreement may be amended from time to time in accordance with its terms
(the “Rights
Agreement”), between CKE Restaurants, Inc, a Delaware corporation (the
“Company”), and
Mellon Investor Services LLC, a New Jersey limited liability company (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 December 31, 2009, unless the Rights are previously redeemed, exchanged or
terminated, at the offices of the Rights Agent designated for such purpose, or
its successors as Rights Agent, one one-hundredth of a fully paid non-assessable
share of Series A Junior Participating Preferred Stock, $0.01 par value
(the “Preferred
Shares”), of the Company, at a purchase price of $40.00 per one
one-hundredth of a Preferred Share (the “Purchase Price”),
upon presentation and surrender of this Rights Certificate with the form of
Election to Purchase and related Certificate duly executed. The
number of Rights evidenced by this Rights Certificate (and the number of one
one-hundredths of a Preferred Share which may be purchased upon exercise hereof)
set forth above, are the number and Purchase Price as of January 7, 2009, based
on the Preferred Shares as constituted at such date. As provided in
the Rights Agreement, the Purchase Price and the number and kind of Preferred
Shares 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.
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 principal executive offices of the Company and the
above-mentioned office of the Rights Agent.
Subject
to the provisions of the Rights Agreement, the Rights evidenced by this Rights
Certificate (i) may be redeemed by the Company, at its option, at a
redemption price of $0.01 per Right or (ii) may be exchanged by the Company
in whole or in part for Common Shares, substantially equivalent rights or other
consideration as determined by the Company.
This
Rights Certificate, with or without other Rights Certificates, upon surrender at
the office 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 amount of
securities 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.
No
fractional portion less than integral multiples of one one-hundredth of a
Preferred Share 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 holder
of this Rights Certificate, as such, shall be entitled to vote or receive
dividends or be deemed for any purpose the holder of the Preferred Shares or 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.
The
Rights Certificate shall not be valid or obligatory for any purpose until it
shall have been countersigned by the Rights Agent.
1
The portion of the legend in brackets shall be inserted only if applicable and
shall replace the preceding sentence.
WITNESS
the facsimile signature of the proper officers of the Company and its corporate
seal. Dated as of _____________, 200_.
|
ATTEST:
|
CKE
RESTAURANTS, INC.
|
|
By:
|
[Secretary]
Countersigned:
as Rights
Agent
|
By:
|
Authorized
Officer
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.
Dated:
_____________________
Signature
Signature
Guaranteed:
The
signature should be guaranteed by an eligible guarantor institution (banks,
stock brokers, savings and loan associations and credit unions with members in
an approved signature guarantee medallion program) 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.
Dated:
_____________________
Signature
Signature
Guaranteed:
The
signature should be guaranteed by an eligible guarantor institution (banks,
stock brokers, savings and loan associations and credit unions with members in
an approved signature guarantee medallion program) pursuant to Rule 17Ad-15
under the Securities Exchange Act of 1934, as amended.
Form of
Reverse Side of Rights Certificate -- continued
FORM OF ELECTION TO
PURCHASE
(To be
executed if holder desires to exercise the Rights Certificate)
To:
The
undersigned hereby irrevocable elects to exercise __________________ Rights
represented by this Rights Certificate to purchase the number of one
one-hundredths of a Preferred Share issuable upon the exercise of such Rights
and requests that certificates for such number of one one-hundredths of a
Preferred Share be issued in the name of:
Please
insert social security or other identifying number
_______________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
(Please
print name and address)
If such
number of Rights shall not be all the Rights evidenced by this Rights
Certificate, a new Rights Certificate for the balance remaining of such Rights
shall be registered in the name of and delivered to:
Please
insert social security or other identifying number
_______________________________
_____________________________________________________
_____________________________________________________
_____________________________________________________
(Please
print name and address)
Dated:
_____________________
Signature
Signature
Guaranteed:
The
signature should be guaranteed by an eligible guarantor institution (banks,
stock brokers, savings and loan associations and credit unions with members in
an approved signature guarantee medallion program) 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.
Dated:
_____________________
Signature
Signature
Guaranteed:
The
signature should be guaranteed by an eligible guarantor institution (banks,
stock brokers, savings and loan associations and credit unions with members in
an approved signature guarantee medallion program) pursuant to Rule 17Ad-15
under the Securities Exchange Act of 1934.
Form of
Reverse Side of Rights Certificate -- continued
NOTICE
The
signature in the foregoing Forms of Assignment and Election must conform to the
name as written upon the face of this Rights Certificate in every particular,
without alteration or enlargement or any change whatsoever.
In the
event the certification set forth on the foregoing Form of Assignment or the
Form of Election to Purchase, as the case may be, is not completed, the Company
and the Rights Agent will deem the beneficial owner of the Rights evidenced by
the Rights Certificate to be an Acquiring Person or an Affiliate or Associate
thereof (as defined in the Rights Agreement) and such Assignment or Election to
Purchase will not be honored.
EXHIBIT
C
Summary
of Rights
On
December 29, 2008, the Board of Directors of CKE Restaurants, Inc. (the “Corporation”)
approved the adoption of a Stockholder Rights Plan and declared a dividend
distribution of one right (a “Right”) for each
outstanding share of the Corporation’s Common Stock to stockholders of record at
the close of business on January 7, 2009 (the “Record
Date”). Each Right entitles the registered holder to purchase
from the Corporation a unit consisting of one one-hundredth of a share (a “Unit”) of
Series A Junior Participating Preferred Stock, $0.01 par value (the “Preferred Stock”), at
a purchase price of $40.00 per Unit, subject to adjustment. The
description and terms of the Rights are set forth in a Rights Agreement between
the Corporation and Mellon Investor Services LLC, as Rights Agent, dated as of
January 5, 2009, as may be amended, restated or otherwise modified from time to
time (the “Rights
Agreement”).
Certificates. Initially,
the Rights will not be exercisable, the Rights will be attached to the shares of
Common Stock underlying the balances indicated in the book-entry account system
of the transfer agent for the Common Stock or, in the case of certificated
shares, all Common Stock certificates representing shares then outstanding, and
no separate rights certificates (“Rights Certificates”)
will be distributed. Subject to certain exceptions specified in the
Rights Agreement, the Rights will separate from the Common Stock and a
distribution date (the “Distribution Date”)
will occur upon the earlier of (i) ten (10) days following a public
announcement that a person or group of affiliated or associated persons (an
“Acquiring
Person”) has acquired, or obtained the right to acquire, beneficial
ownership of fifteen percent (15%) or more of the outstanding shares of Common
Stock (the “Stock
Acquisition Date”), or (ii) ten (10) business days following the
commencement of a tender offer or exchange offer that would result in a person
or group beneficially owning fifteen percent (15%) or more of the outstanding
shares of Common Stock. Until the Distribution Date (or earlier
redemption, exchange, or expiration of the Rights), (i) the Rights will be
evidenced by the balances indicated in the book-entry account system of the
transfer agent for the Common Stock registered in the names of the holders of
the Common Stock or, in the case of certificated shares, the Common Stock
certificates, and will be transferred with and only with such shares or, in the
case of certificated shares, Common Stock certificates, (ii) confirmation
and account statements sent to holders of shares of Common Stock in book-entry
form or, in the case of certificated shares, new Common Stock certificates
issued after the Record Date, will contain a notation incorporating the Rights
Agreement by reference, and (iii) the transfer of any shares of Common
Stock or, in the case of certificated shares, certificates for Common Stock,
outstanding will also constitute the transfer of the Rights associated with such
shares of Common Stock, or in the case of certificated shares, the Common Stock
represented by such certificates.
Expiration and
Exercise. The Rights are not exercisable until the
Distribution Date and will expire at the close of business on December 31, 2009,
unless the Rights are previously redeemed, exchanged or terminated (including by
stockholder action in connection with a “Qualified Offer” as defined in the
Rights Agreement) 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.
“Flip-In.” In
the event that (i) the Corporation is the surviving corporation in a merger
with an Acquiring Person and its Common Stock is not changed or exchanged,
(ii) an Acquiring Person becomes the beneficial owner of more than fifteen
percent (15%) of the outstanding shares of Common Stock, (iii) an Acquiring
Person engages in one or more “self-dealing” transactions as set forth in the
Rights Agreement, or (iv) during such time as there is an Acquiring Person,
an event occurs which results in such Acquiring Person’s ownership interest
being increased by more than one percent (1%) (e.g., a reverse stock split),
each holder of a Right will thereafter have the right to receive, upon exercise,
Common Stock (or, in certain circumstances, cash, property or other securities
of the Corporation) having a value equal to two (2) times the exercise price of
the Right. 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 become null and
void.
For
example, at an exercise price of $40 per Right, 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 $80 worth of Common
Stock (or other consideration, as noted above) for $40. Assuming that
the Common Stock had a per share value of $10 at such time, the holder of each
valid Right would be entitled to purchase eight (8) shares of Common Stock for
$40.
“Flip-Over.” In
the event that, at any time following the Stock Acquisition Date, (i) the
Corporation is acquired in a merger or other business combination transaction in
which the Corporation is not the surviving corporation, or (ii) fifty
percent (50%) or more of the Corporation’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 the acquiring company having a value equal to two (2)
times the exercise price of the Right.
Exchange
Feature. At any time after any person becomes an Acquiring
Person and prior to the acquisition by such person or group of fifty percent
(50%) or more of the outstanding Common Stock, the Board of Directors may
exchange the Rights (other than Rights owned by such person or group which will
have become null and void), in whole or in part, at an exchange rate of one
share of Common Stock (or a combination of cash, property, Common Stock or other
securities having an equal value) per Right (subject to
adjustment).
Adjustment for
Dilution. The purchase price payable, and the number of Units
of Preferred 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 Preferred Stock, (ii) if holders of the Preferred
Stock are granted certain rights or warrants to subscribe for Preferred Stock or
convertible securities at less than the current market price of the Preferred
Stock, or (iii) upon the distribution to holders of the Preferred Stock of
evidences of indebtedness or assets (excluding regular 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 one percent (1%) of the purchase
price. No fractional Units will be issued and, in lieu thereof, an
adjustment in cash will be made based on the market price of the Preferred Stock
on the last trading date prior to the date of exercise.
Redemption. At
any time until ten (10) days following the Stock Acquisition Date, the
Corporation may redeem the Rights in whole, but not in part, at a price of $0.01
per Right (the “Redemption
Price”). 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 Redemption
Price. However, in the event that the Corporation receives a
Qualified Offer, the rights may be redeemed by way of a stockholder action taken
at a special meeting of stockholders called by the Board of Directors for the
purpose of voting on a resolution accepting the Qualified Offer and authorizing
the redemption of the Rights pursuant to the provisions of the Rights
Agreement. The special meeting must be held not less than ninety (90)
and not more than one hundred twenty (120) days after the date the Qualified
Offer is received. This 120-day deadline may be extended if required
at that time to satisfy any then outstanding regulatory or information delivery
requirements. Such an action by stockholders requires the affirmative
vote of at least a majority of all outstanding shares of Common Stock entitled
to vote as of the record date of the special meeting, and is effective
immediately prior to the consummation of any Qualified Offer consummated within
sixty (60) days after the special meeting. A “Qualified Offer” is a
tender offer for all outstanding shares of Common Stock not already beneficially
owned by the person making the Qualified Offer that meets all of the following
conditions:
-
the same per share price and consideration is offered for all shares of Common Stock, is at least eighty percent (80%) cash (and any non-cash portion is comprised of shares listed on a national securities exchange), and is to be paid upon consummation of the Qualified Offer;
-
the offering person has on hand cash or cash equivalents for the full amount necessary to consummate the Qualified Offer, or has all financing in the full amount necessary to consummate the Qualified Offer, and has entered into definitive financing agreements;
-
the offering person requests that the Corporation call a special meeting of stockholders to accept the Qualified Offer and to authorize the redemption of the Rights, and contains a written agreement of the person making the Qualified Offer to pay at least one-half (1/2) the Corporation’s costs of such special meeting;
-
the Qualified Offer by its terms remains open for at least sixty (60) business days and at least fifteen (15) additional business days after any increase in price or after any bona fide alternative offer for a higher consideration is made;
-
the Qualified Offer is accompanied by a written opinion of a nationally recognized investment banking firm, stating that the price to be paid to stockholders pursuant to the Qualified Offer is fair from a financial point of view to such stockholders and including any written presentation of such firm showing the analysis and range of values underlying such conclusion;
-
on or before the date the Qualified Offer is commenced, the offering person makes an irrevocable written commitment to the Corporation:
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§
|
to
acquire, within five (5) business days upon completion of the Qualified
Offer, all shares of Common Stock then not beneficially owned by such
person at the same price, and for the same consideration, per share as
paid in the Qualified Offer;
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|
§
|
not
to amend its offer to reduce the per share price, to change the form of
consideration offered, or to reduce the number of shares being sought;
and
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|
§
|
if
the Qualified Offer is not consummated, that such person will not make
another offer for the Common Stock within one (1) year if at least
eighty-five percent (85%) of the common stock not owned by such person has
not been tendered in the Qualified Offer;
and
|
-
the Qualified Offer is not subject to any financing, funding or similar condition, does not include any condition relating to completion of or satisfaction with any due diligence or similar investigation, and otherwise provides for usual and customary terms and conditions.
Stockholder
Rights. Until a Right is exercised, the holder thereof, as
such, will have no rights as a stockholder of the Corporation, including,
without limitation, the right to vote or to receive dividends. While
the distribution of the Rights will not be taxable to stockholders or to the
Corporation, 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 Corporation or for common stock of the acquiring
company as set forth above.
Amendments. The
Corporation (by action of the Board) may supplement or amend any provision of
the Rights Agreement from time to time, including, without limitation, in order
to cure any ambiguity, to correct or supplement any provision contained in the
Rights Agreement which may be defective or inconsistent with any other
provisions, to shorten or lengthen any time period under the Rights Agreement,
or to change, amend, or supplement the provisions of the Rights Agreement in any
manner which the Corporation may deem necessary or
desirable. Notwithstanding the foregoing, from and after such time as
any person becomes an Acquiring Person, the Rights Agreement may not be
supplemented or amended in any manner that would adversely affect the interests
of the holders of Rights (other than Rights that have become null and
void).
Availability of Rights
Agreement. A copy of the Rights Agreement has been filed with
the Securities and Exchange Commission as an Exhibit to Registration Statement
on Form 8-A dated January 5, 2009. A copy of the Rights
Agreement is available free of charge from the Corporation. This
Summary of 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.