EXHIBIT 4
SIERRA TAHOE BANCORP
and
AMERICAN STOCK TRANSFER & TRUST CO.
Rights Agent
RIGHTS AGREEMENT
Dated as of January 16, 1996
TABLE OF CONTENTS
Page(s)
SECTION 1. CERTAIN DEFINITIONS 2
SECTION 2. APPOINTMENT OF RIGHTS AGENT 9
SECTION 3. ISSUE OF RIGHT CERTIFICATES 10
SECTION 4. FORM OF RIGHT CERTIFICATES 13
SECTION 5. COUNTERSIGNATURE AND REGISTRATION 15
SECTION 6. TRANSFER, SPLIT UP, COMBINATION AND EXCHANGE
OF RIGHT CERTIFICATES; MUTILATED, DESTROYED,
LOST OR STOLEN RIGHT CERTIFICATES 16
SECTION 7. EXERCISE OF RIGHTS; PURCHASE PRICE;
EXPIRATION DATE OF RIGHTS 18
SECTION 8. CANCELLATION AND DESTRUCTION OF RIGHT
CERTIFICATES 23
SECTION 9. AVAILABILITY OF PREFERRED STOCK 24
SECTION 10. PREFERRED STOCK RECORD DATE 26
SECTION 11. ADJUSTMENT OF PURCHASE PRICE, NUMBER OF
SHARES OR NUMBER OF RIGHTS 27
SECTION 12. CERTIFICATE OF ADJUSTED PURCHASE PRICE OR
NUMBER OF SHARES 44
SECTION 13. CONSOLIDATION, MERGER OR SALE OR TRANSFER OF
ASSETS OR EARNING POWER 44
SECTION 14. FRACTIONAL RIGHTS AND FRACTIONAL SHARES 52
SECTION 15. RIGHTS OF ACTION 55
SECTION 16. AGREEMENT OF RIGHT HOLDERS 56
SECTION 17. RIGHT CERTIFICATE HOLDER NOT DEEMED A
STOCKHOLDER 57
SECTION 18. CONCERNING THE RIGHTS AGENT 58
SECTION 19. MERGER OR CONSOLIDATION OR CHANGE OF NAME OF
RIGHTS AGENT 59
SECTION 20. DUTIES OF RIGHTS AGENT 60
SECTION 21. CHANGE OF RIGHTS AGENT 64
SECTION 22. ISSUANCE OF NEW RIGHT CERTIFICATES 66
SECTION 23. REDEMPTION 67
SECTION 24. EXCHANGE 69
SECTION 25. NOTICE OF CERTAIN EVENTS 72
SECTION 26. NOTICES 74
SECTION 27. SUPPLEMENTS AND AMENDMENTS 75
SECTION 28. REGISTRATION OF SECURITIES 77
SECTION 29. DETERMINATION AND ACTIONS BY THE BOARD OF
DIRECTORS 77
SECTION 30. SUCCESSORS 78
SECTION 31. BENEFITS OF THIS AGREEMENT 78
SECTION 32. SEVERABILITY 79
SECTION 33. GOVERNING LAW 79
SECTION 34. COUNTERPARTS 79
SECTION 35. DESCRIPTIVE HEADINGS 80
Exhibit A: Form of Certificate of Designation for Series A
Junior Participating Preferred Shares
Exhibit B: Form of Right Certificate
Exhibit C: Summary of Rights to Purchase Preferred Sharers
- ii -
RIGHTS AGREEMENT
Agreement, dated as of January 16, 1996 between Sierra Tahoe
Bancorp, a California corporation ("Company"), and American Stock
Transfer & Trust Co. ("Rights Agent").
Pursuant to this Agreement, the Board of Directors of the
Company has authorized and declared a dividend of one preferred
share purchase right ("Right") for each share of Common Stock (as
hereinafter defined) of the Company outstanding on January 16,
1996 ("Record Date"), each Right representing the right to
purchase one one-hundredth of a Preferred Stock share (as
hereinafter defined), upon the terms and subject to the
conditions herein set forth, and has further authorized and
directed the issuance of one Right with respect to each Common
Stock share that shall become outstanding between the Record Date
and the earliest of the Distribution Date, the Redemption Date
and the Final Expiration Date (as such terms are hereinafter
defined).
Accordingly, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
SECTION 1. CERTAIN DEFINITIONS
For purposes of this Agreement, the following terms have the
meanings indicated:
(a) "Acquiring Person" shall mean any Person (as such term
is hereinafter defined) who or which, together with all
Affiliates and Associates (as such terms are hereinafter defined)
of such Person, shall be the Beneficial Owner (as such term is
hereinafter defined) of 10% or more of the Common Stock of the
Company then outstanding, but shall not include the Company, any
Subsidiary (as such term is hereinafter defined) of the Company,
any employee benefit plan of the Company or of any Subsidiary of
the Company, or of any entity holding Common Stock for or
pursuant to the terms of any such plan, PROVIDED, HOWEVER, that
if a Person is the Beneficial Owner at the close of business on
the date of this Agreement of ten percent (10%) or more the
Common Stock of the Company, such Person shall not be deemed an
Acquiring Person unless and until such Person acquires any
additional Common Stock in any manner other than pursuant to a
stock dividend, stock split, recapitalization, or similar
transaction that does not affect the percentage of outstanding
Common Stock. Notwithstanding the foregoing, no Person shall
become an "Acquiring Person" 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 10% or more of the Common
Stock of the Company then outstanding; PROVIDED, HOWEVER, that if
a Person shall become the Beneficial Owner of 10% 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 of any additional Common
Stock of the Company, then such Person shall be deemed to be an
"Acquiring Person." Notwithstanding the foregoing, if a majority
of the Board of Directors then in office determines in good faith
that a Person who would otherwise be an "Acquiring Person", as
defined pursuant to the foregoing provisions of this paragraph
(a), has become such inadvertently, and such Person divests as
promptly as practicable a sufficient number of shares of Common
Stock so that such Person would no longer be an Acquiring Person,
as defined pursuant to the foregoing provisions of this paragraph
(a), then such Person shall not be deemed to be an "Acquiring
Person" for any purposes to this Agreement.
(b) "Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General
Rules and Regulations under the Securities Exchange Act of 1934,
as amended ("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;
(ii) which such Person or any of such Person's
Affiliates or Associates has (A) the right to acquire (whether
such right is exercisable immediately or only after the passage
of time) pursuant to any agreement, arrangement or understanding
(other than customary agreements with and between underwriters
and selling group members with respect to a bona fide public
offering of securities), or from and after, but only after, the
exercise of conversion rights, exchange rights, rights (other
than these Rights at any time prior to the occurrence of an Flip-In Event,
but thereafter including these Rights acquired from and
after the Distribution Date (as defined in Section 3(a) below)),
warrants or options, or otherwise; PROVIDED, HOWEVER, that a
Person shall not be deemed the Beneficial Owner of, or to
beneficially own, securities tendered pursuant to a tender or
exchange offer made by or on behalf of such Person or any of such
Person's Affiliates or Associates until such tendered securities
are accepted for purchase or exchange; or (B) the right to vote
pursuant to any agreement, arrangement or understanding;
PROVIDED, HOWEVER, that a Person shall not be deemed the
Beneficial Owner of, or to beneficially own, any security if the
agreement, arrangement or understanding to vote such security (1)
arises solely from a revocable proxy or consent given to such
Person in response to a public proxy or consent solicitation made
pursuant to, and in accordance with, the applicable rules and
regulations promulgated under the Exchange Act and (2) is not
also then reportable on Schedule 13D under the Exchange Act (or
any comparable or successor report); or
(iii) which are beneficially owned, directly or
indirectly, by any other Person with which such Person or any of
such Person's Affiliates or Associates has any agreement,
arrangement or understanding whether or not in writing (other
than customary agreements with and between underwriters and
selling group members with respect to a bona fide public offering
of securities) for the purpose of acquiring, holding, voting
(except to the extent contemplated by the proviso in Section
1(d)(ii)(B)) or disposing of any securities of the Company;
PROVIDED, HOWEVER, that in no case shall an officer or director
of the Company be deemed 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 such plan.
Notwithstanding anything in this definition of Beneficial
Ownership to the contrary, the phrase "then outstanding," when
used with 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 which
such Person would be deemed to own beneficially hereunder.
Furthermore, directors and officers of the Company shall not be
deemed to beneficially own each others Common Stock solely due to
their status as a director or officer of the Company.
(e) "Business Day" shall mean any day other than a
Saturday, a Sunday, or a day on which banking institutions in the
State of California are authorized or obligated by law or
executive order to close.
(f) "Close of business" on any given date shall mean
5:00 P.M., San Francisco time, on such date; PROVIDED, HOWEVER,
that if such date is not a Business Day it shall mean 5:00 P.M.,
San Francisco time, on the next succeeding Business Day.
(g) "Common Stock" shall mean the Common Stock, no par
value, of the Company (as such term is defined in the
introductory paragraphs above) or any other shares of capital
stock of the Company into which the Common Stock shall be
reclassified or changed, except that "Common Stock" when used
with reference to any Person other than the Company shall mean
the shares of capital stock of such Person (if such Person is a
corporation) of any class or series, or units of equity interests
in such Person (if such Person is not a corporation) of any class
or series, the terms of which do not limit (as a fixed amount and
not merely in proportional terms) the amount of dividends or
income payable or distributable on such class or series upon any
voluntary or involuntary liquidation, dissolution, or winding up
of such Person and do not provide that such class or series is
subject to redemption at the option of such Person, or any shares
of capital stock or units of equity interests into which the
foregoing shall be reclassified or changed; PROVIDED, HOWEVER,
that if at any time there shall be more than one such class or
series of capital stock or equity interests of such Person,
"Common Stock" of such Person shall include all such classes and
series substantially in the proportion of the total number of
shares or other units of each class or series outstanding at such
time.
(h) "Current Value" shall have the meaning set forth in
Section 11(a)(iv) hereof.
(i) "Distribution Date" shall have the meaning set forth in
Section 3 hereof.
(j) "Final Expiration Date" shall have the meaning set
forth in Section 7 hereof.
(k) "Flip-In Event" shall have the meaning set forth in
Section 11(a)(ii) hereof.
(l) "Person" shall mean any individual, firm, partnership,
joint venture, corporation or other entity, and shall include any
successor (by merger or otherwise) of such entity.
(m) "Preferred Stock" shall mean shares of Series A Junior
Participating Preferred Stock, no par value, of the Company
having the rights and preferences set forth in the Certificate of
Designation, Preferences and Rights of Series A Junior
Participating Preferred Stock attached hereto as Exhibit A.
(n) "Principal Party" shall have the meaning set forth in
Section 13(b) hereof.
(o) "Redemption Date" shall have the meaning set forth in
Section 7 hereof.
(p) "Registered Common Stock" shall have the meaning set
forth in Section 13(d) hereof.
(q) "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) of the Exchange Act) by the Company or an Acquiring
Person that an Acquiring Person has become such or such earlier
date as a majority of the directors of the Company shall become
aware of the existence of an Acquiring Person.
(r) "Spread" shall have the meaning set forth in Section
11(a)(iv) hereof.
(s) "Subsidiary" of any Person shall mean any corporation
or other entity of which a majority of the voting power of the
voting equity securities or equity interest is owned, directly or
indirectly, by such Person.
(t) "Substitution Period" shall have the meaning set forth
in Section 11(a)(iv) hereof.
(u) "Trading Day" shall have the meaning set forth in
Section 11(d)(i) hereof.
SECTION 2. APPOINTMENT OF RIGHTS AGENT
The Company hereby appoints the Rights Agent to act as agent
for the Company in accordance with the terms and conditions
hereof, and the Rights Agent hereby accepts such appointment. The
Company may from time to time appoint such co-Rights Agents as it
may deem necessary or desirable. 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.
SECTION 3. ISSUE OF RIGHT CERTIFICATES
(a) Until the earlier of the close of business on (i) the
tenth day after the Stock Acquisition Date, or (ii) the tenth
Business Day (or such later date as may be determined by action
of the Board of Directors prior to such time as any Person
becomes an Acquiring Person) after the date of the commencement
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 entity holding Common Stock for
or pursuant to the terms of any such plan) of, or of the first
public announcement of the intention of 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
entity holding Common Stock for or pursuant to the terms of any
such plan) to commence, a tender or exchange offer the
consummation of which would result in any Person becoming the
Beneficial Owner of Common Stock aggregating 10% or more of the
then outstanding Common Stock (irrespective of whether any shares
of Common Stock are actually purchased pursuant to such offer)
(including any such date which is after the date of this
Agreement and prior to the issuance of the Rights), (the earliest
of such dates being herein referred to as the "Distribution
Date"), (x) the Rights will be evidenced (subject to the
provisions of Section 3(b) hereof) by the certificates for Common
Stock registered in the names of the holders thereof (which
certificates shall also be deemed to be Right Certificates) and
not by separate Right Certificates, and (y) the right to receive
Right Certificates will be transferable only in connection with
the transfer of Common Stock. As soon as practicable after the
Distribution Date, 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 will, if requested, send) by
first-class, insured, postage-prepaid mail, to each record holder
of 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, a Right Certificate, in substantially the form of
Exhibit B hereto ("Right Certificate"), evidencing one Right for
each Common Stock share so held. As of the Distribution Date, the
Rights will be evidenced solely by such Right Certificates.
(b) On the Record Date, or as soon as practicable
thereafter, the Company will send a copy of a Summary of Rights
to Purchase Preferred Stock, in substantially the form of Exhibit
C hereto ("Summary of Rights"), by first-class, postage-prepaid
mail, to each record holder of Common Stock as of the close of
business on the Record Date, at the address of such holder shown
on the records of the Company. With respect to certificates for
Common Stock outstanding as of the Record Date, until the
Distribution Date, the Rights will be evidenced by such
certificates registered in the names of the holders thereof
regardless of whether a copy of the Summary of Rights is attached
thereto. Until the Distribution Date (or the earlier of the
Redemption Date or the Final Expiration Date), the surrender for
transfer of any certificate for Common Stock outstanding on the
Record Date, with or without a copy of the Summary of Rights
attached thereto, shall also constitute the transfer of the
Rights associated with the Common Stock represented thereby.
(c) Certificates for shares of Common Stock which become
outstanding (including, without limitation, reacquired shares of
Common Stock referred to in the last sentence of this paragraph
(c)) after the Record Date but prior to the earliest of the
Distribution Date, the Redemption Date or the Final Expiration
Date shall have impressed on, printed on, written on or otherwise
affixed to them the following legend:
This certificate also evidences and entitles the holder
hereof to certain rights as set forth in a Rights Agreement
between Sierra Tahoe Bancorp and American Stock Transfer & Trust
Co., dated as of January 16, 1996 ("Rights Agreement"), the terms
of which are hereby incorporated herein by reference and a copy
of which is on file at the principal executive offices of Sierra
Tahoe Bancorp. 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.
Sierra Tahoe Bancorp will mail to the holder of this certificate
a copy of the Rights Agreement without charge after receipt of a
written request therefor. Under certain circumstances, as set
forth in the Rights Agreement, Rights issued to any Person who
becomes an Acquiring Person (as defined in the Rights Agreement)
may become null and void.
With respect to such certificates containing the foregoing
legend, until the earlier of the Distribution Date or Final
Expiration Date, the Rights associated with the Common Stock
represented by such certificates shall be evidenced by such
certificates alone, and the surrender for transfer of any such
certificate shall also constitute the transfer of the Rights
associated with the Common Stock represented thereby. In the
event that the Company purchases or acquires any Common Stock
after the Record Date but prior to the Distribution Date, the
Company shall not be entitled to exercise any Rights associated
with such Common Stock while they are not outstanding.
SECTION 4. FORM OF RIGHT CERTIFICATES
(a) The Right Certificates (and the forms of election to
purchase Preferred Stock and of assignment to be printed on the
reverse thereof) shall be substantially the same as Exhibit B
hereto and may have such marks of identification or designation
and such legends, summaries or endorsements printed thereon as
the Company may deem appropriate and as are not inconsistent with
the provisions of this Agreement, or as may be required to comply
with any applicable law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock
exchange or other organization on which the Rights may from time
to time be listed or quoted, or to conform to usage. Subject to
the provisions of Section 22 hereof, the Right Certificates shall
entitle the holders thereof to purchase such number of one
one-hundredths of a Preferred Stock share as shall be set forth
therein at the price per one one-hundredth of a Preferred Stock
share set forth therein ("Purchase Price"), but the number of
such one one-hundredths of a Preferred Stock share and the
Purchase Price shall be subject to adjustment as provided herein.
(b) Any Rights Certificate issued pursuant to Section 3(a)
or Section 22 hereof that represents Rights beneficially owned
by: (i) an Acquiring Person or any Associate or Affiliate of an
Acquiring Person, (ii) a transferee of an Acquiring Person (or
any such Associate or Affiliate) who becomes a transferee after
the Acquiring Person becomes such, except a transferee purchasing
from or through a nationally recognized broker-dealer where such
transferee and such transferee's Associates and Affiliates do not
collectively acquire, and will not have acquired during the
preceding twenty (20) calendar days, in combination with the
proposed transfer, an amount of Common Stock equal to more than
one percent (1%) of the outstanding shares of Common Stock, and
(iii) a transferee of an Acquiring Person (or 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 wither (A) a transfer (whether or not for
consideration) from the Acquiring Person to or on behalf of
holders of equity interests in such Acquiring Person or to any
Person with whom the Acquiring Person has any continuing
agreement, arrangement, or understanding regarding the
transferred Rights or (B) a transfer which the Board of Directors
otherwise conclude in good faith is part of a plan, arrangement,
or understanding which has as a primary purpose or effect
avoidance of Section 7(f) hereof, and any Rights Certificate
issued pursuant to Section 6 or Section 11 hereof upon transfer,
exchange, replacement, or adjustment of any other Rights
Certificate referred to in this sentence, shall contain (to the
extent feasible and reasonably identifiable as such) the
following legend:
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 void in the circumstances specified in
Section 7(f) of such Agreement.
SECTION 5. COUNTERSIGNATURE AND REGISTRATION
(a) The Right Certificates shall be executed on behalf of
the Company by its Chairman of the Board, its Chief Executive
Officer, its President, or any of its Executive Vice Presidents,
either manually or by facsimile signature, shall have affixed
thereto the Company's seal or a facsimile thereof, and shall be
attested by the Secretary or an Assistant Secretary of the
Company, either manually or by facsimile signature. The Right
Certificates shall be manually countersigned by the Rights Agent
and shall not be valid for any purpose unless countersigned. In
case any officer of the Company who shall have signed any of the
Right Certificates shall cease to be such officer of the Company
before countersignature by the Rights Agent and issuance and
delivery by the Company, such Right 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 Right Certificates had not ceased to be
such officer of the Company; and any Right Certificate may be
signed on behalf of the Company by any person who, at the actual
date of the execution of such Right Certificate, shall be a
proper officer of the Company to sign such Right 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, the Rights Agent will
keep or cause to be kept, at its principal office, books for
registration and transfer of the Right Certificates issued
hereunder. Such books shall show the names and addresses of the
respective holders of the Right Certificates, the number of
Rights evidenced on its face by each of the Right Certificates
and the date of each of the Right Certificates.
SECTION 6. TRANSFER, SPLIT UP, COMBINATION AND EXCHANGE OF
RIGHT CERTIFICATES; MUTILATED, DESTROYED, LOST OR STOLEN RIGHT
CERTIFICATES
Subject to the provisions of Section 14 hereof, at any time
after the close of business on the Distribution Date, and at or
prior to the close of business on the earlier of the Redemption
Date or the Final Expiration Date, any Right Certificate or Right
Certificates (other than Right Certificates representing Rights
that have become void pursuant to Section 11(a)(ii) hereof or
that have been exchanged pursuant to Section 24 hereof) may be
transferred, split up, combined or exchanged for another Right
Certificate or Right Certificates, entitling the registered
holder to purchase a like number of one one-hundredths of a
Preferred Stock share as the Right Certificate or Right
Certificates surrendered then entitled such holder to purchase.
Any registered holder desiring to transfer, split up, combine or
exchange any Right Certificate or Right Certificates shall make
such request in writing delivered to the Rights Agent, and shall
surrender the Right Certificate or Right Certificates to be
transferred, split up, combined or exchanged at the principal
office of the Rights Agent. Thereupon the Rights Agent shall
countersign and deliver to the person entitled thereto a Right
Certificate or Right Certificates, as the case may be, as so
requested. The Company may require payment of a sum sufficient
to cover any tax or governmental charge that may be imposed in
connection with any transfer, split up, combination or exchange
of Right Certificates.
Upon receipt by the Company and the Rights Agent of evidence
reasonably satisfactory to them of the loss, theft, destruction
or mutilation of a Right Certificate, and, in case of loss, theft
or destruction, of indemnity or security reasonably satisfactory
to them, and, at the Company's request, 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 Right Certificate if mutilated, the Company
will make and deliver a new Right Certificate of like tenor to
the Rights Agent for delivery to the registered holder in lieu of
the Right Certificate so lost, stolen, destroyed or mutilated.
SECTION 7. EXERCISE OF RIGHTS; PURCHASE PRICE; EXPIRATION
DATE OF RIGHTS
(a) The registered holder of any Right Certificate may
exercise the Rights evidenced thereby (except as otherwise
provided herein) in whole or in part at any time after the
Distribution Date upon surrender of the Right Certificate, with
the form of election to purchase on the reverse side thereof duly
executed, to the Rights Agent at the principal office of the
Rights Agent, together with payment of the Purchase Price for
each one one-hundredth of a Preferred Stock share as to which the
Rights are exercised, at or prior to the earliest of (i) the
close of business on January 16, 2006 ("Final Expiration Date"),
(ii) the time at which the Rights are redeemed as provided in
Section 23 hereof ("Redemption Date"), or (iii) the time at which
such Rights are exchanged as provided in Section 24 hereof.
(b) The Purchase Price for each one one-hundredth of a
Preferred Stock share pursuant to the exercise of a Right shall
initially be $40.00, shall be subject to adjustment from time to
time as provided in Sections 11 and 13 hereof or by amendment
consistent with Section 27 hereof, and shall be payable in lawful
money of the United States of America or otherwise in accordance
with paragraph (c) below.
(c) Upon receipt of a Right Certificate representing
exercisable Rights, with the form of election to purchase duly
executed, accompanied by payment of the Purchase Price for the
shares to be purchased and an amount equal to any applicable
transfer tax required to be paid by the holder of such Right
Certificate in accordance with Section 9 hereof by cash,
certified check, cashier's check or money order payable to the
order of the Company, the Rights Agent shall thereupon promptly
(i) (A) requisition from any transfer agent of the Preferred
Stock certificates for the number of Preferred Stock to be
purchased and the Company hereby irrevocably authorizes its
transfer agent to comply with all such requests, or (B)
requisition from the depositary agent depositary receipts
representing such number of one one-hundredths of a Preferred
Stock share as are to be purchased (in which case certificates
for the Preferred Stock represented by such receipts shall be
deposited by the transfer agent with the depositary agent) and
the Company hereby directs the depositary agent to comply with
such request, (ii) when appropriate, requisition from the Company
the amount of cash to be paid in lieu of issuance of fractional
shares in accordance with Section 14 hereof, (iii) after receipt
of such certificates or depositary receipts, cause the same to be
delivered to or upon the order of the registered holder of such
Right Certificate, registered in such name or names as may be
designated by such holder and (iv) when appropriate, after
receipt, deliver such cash to or upon the order of the registered
holder of such Right Certificate.
The payment of the Purchase Price (as such amount may be
reduced pursuant to Section 11(a)(iii) hereof shall be made in
cash or by certified check, cashier's check, bank draft, or money
order payable to the order of the Company, except that if so
provided by the Board, the payment of the Purchase Price
following the Flip-In Event and until the first occurrence of an
event described in Section 13 may be made wholly or in part by
delivery of a certificate or certificates (with appropriate stock
powers executed in blank attached thereto) evidencing a number of
shares of Common Stock of the Company equal to the then Purchase
Price divided by the closing price (as determined pursuant to
Section 11(d) hereof) per share of Common Stock on the Trading
Day immediately preceding the date of such exercise. In the
event that the Company is obligated to issue other securities of
the Company, pay cash, and/or distribute other property pursuant
to Section 11(a)(ii) hereof, subject to Section 14 hereof the
Company will make all arrangements necessary so that such other
securities, cash, and/or property are available of distribution
by the Rights Agent, if and when appropriate. In addition, in
the case of an exercise of the Rights by a holder pursuant to
Section 11(a)(ii), the Rights Agent shall return such Rights
Certificate to the registered holder thereof after imprinting,
stamping, or otherwise indicating thereon that the rights
represented by such Rights Certificate no longer include the
rights provided by Section 11(a)(ii) of the Rights Agreement and
if less than all the Rights represented by such Rights
Certificate were so exercised, the Rights Agent shall indicate on
the Rights Certificate the number of Rights represented thereby
which continue to include the rights provided by
Section 11(a)(ii).
(d) In case the registered holder of any Right Certificate
shall exercise (except pursuant to Section 11(a)(ii)) less than
all the Rights evidenced thereby, a new Right Certificate
evidencing Rights equivalent to the Rights remaining unexercised
shall be issued by the Rights Agent to the registered holder of
such Right Certificate or to his duly authorized assigns, subject
to the provisions of Section 14 hereof.
(e) The Company covenants and agrees that it will cause to
be reserved and kept available out of its authorized and unissued
Preferred Stock or any Preferred Stock held in its treasury, the
number of Preferred Stock shares that will be sufficient to
permit the exercise in full of all outstanding Rights in
accordance with this Section 7.
(f) Notwithstanding anything in this Agreement to the
contrary, from and after the occurrence of a Flip-In Event, any
Rights beneficially owned by (a) an Acquiring Person or an
Associate or Affiliate of an Acquiring Person, (b) except as
provided below or in Section 4(b), a transferee of an Acquiring
Person (or any such Associated or Affiliate) who becomes a
transferee after the Acquiring Person becomes such, and (c)
except as provided below, a transferee of an Acquiring Person (or
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 (i) a transfer (whether
or not for consideration) from the Acquiring Person to or on
behalf of holders of equity interests in such Acquiring Person or
to any Person with whom the Acquiring Person has any continuing
agreement, arrangement, or understanding regarding the
transferred Rights or (ii) a transfer which the Board of
Directors otherwise conclude in good faith is part of a plan,
arrangement, or understanding which has as a primary purpose or
effect avoidance of this Section 7(f), shall become null and void
without any further action, and any holder of such Rights shall
thereupon have no right to exercise such Rights under any
provision of this Agreement. A majority of the Board of
Directors may in appropriate circumstances waive application of
this Section 7(f) and the requirements of Section 4(b) to any
transfer by and Acquiring Person in connection with a transfer or
series of transfers which cause an Acquiring Person to become the
Beneficial Owner of voting securities having less than ten
percent (10%) of the Common Stock of the Company. The Company
shall use all reasonable efforts to insure that the provisions of
this Section 7(f) hereof are complied with, but shall have no
liability to any holder of Rights for the inability to make any
determinations with respect to an Acquiring Person or any of
their respective Affiliates, Associates, or transferees
thereunder.
(g) 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 any Rights Certificate upon the occurrence of any
purported exercise as set forth in this Section 7 unless the
certificate contained in the appropriate form of election to
purchase set forth on the reverse side of the Rights Certificate
surrendered for such exercise shall have been completed and
signed by the registered holder thereof and the Company shall
have been provided with such additional evidence of the identity
of the Beneficial Owner (or former Beneficial Owner) of such
Rights Certificate or Affiliates or Associates thereof as the
Company shall reasonably request.
SECTION 8. CANCELLATION AND DESTRUCTION OF RIGHT CERTIFICATES
All Right Certificates surrendered for the purpose of
exercise, transfer, split up, combination or exchange shall, if
surrendered to the Company or to 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
Right Certificates shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Rights
Agreement. The Company shall deliver to the Rights Agent for
cancellation and retirement, and the Rights Agent shall so cancel
and retire, any other Right Certificate purchased or acquired by
the Company otherwise than upon the exercise thereof. The Rights
Agent shall deliver all cancelled Right Certificates to the
Company, or shall, at the written request of the Company, destroy
such cancelled Right Certificates, and in such case shall deliver
a certificate of destruction thereof to the Company.
SECTION 9. AVAILABILITY OF PREFERRED 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
Flip-In Event, Common Stock, and/or securities) or any authorized
and issued shares of Preferred Stock (and following the
occurrence of a Flip-In Event, Common Stock, and/or other
securities) held in its treasury, the number of shares of
Preferred Stock (and, following the occurrence of a Flip-In
Event, Common Stock, and/or other securities) that, except as
provided in Section 11(a)(iii) and subject to Section 7(f)
hereof, will be sufficient to permit the exercise in full of all
outstanding Rights.
(b) So long as shares of Preferred Stock (and, following
the occurrence of a Flip-In Event, Common Stock, and/or other
securities) issuable 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 such 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 Distribution Date, a
registration statement under the Securities Act of 1933 (the
"Act"), with respect to the Rights and 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 date of the
expiration of the Rights. The Company will also take such action
as may be appropriate under the "blue sky" laws of the various
states.
(d) The Company covenants and agrees that it will take all
such action as may be necessary to ensure that all Preferred
Stock delivered upon exercise of Rights shall, at the time of
delivery of the certificates for such Preferred Stock (subject to
payment of the Purchase Price), be duly and validly authorized
and issued and fully paid and nonassessable shares.
(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 Right Certificates or of any Preferred Stock
upon the exercise of Rights. The Company shall not, however, be
required to pay any transfer tax which may be payable in respect
of any transfer or delivery of Right Certificates to a person
other than, or the issuance or delivery of certificates or
depositary receipts for the Preferred Stock in a name other than
that of, the registered holder of the Right Certificate
evidencing Rights surrendered for exercise or to issue or to
deliver any certificates or depositary receipts for Preferred
Stock upon the exercise of any Rights until any such tax shall
have been paid (any such tax being payable by the holder of such
Right Certificate at the time of surrender) or until it has been
established to the Company's reasonable satisfaction that no such
tax is due.
SECTION 10. PREFERRED STOCK RECORD DATE
Each person in whose name any certificate for Preferred
Stock is issued upon the exercise of Rights shall for all
purposes be deemed to have become the holder of record of the
Preferred Stock represented thereby on, and such certificate
shall be dated, the date upon which the Right Certificate
evidencing such Rights was duly surrendered and payment of the
Purchase Price (and any applicable transfer taxes) was made;
PROVIDED, HOWEVER, that if the date of such surrender and payment
is a date upon which the Preferred Stock transfer books of the
Company are closed, such person shall be deemed to have become
the record holder of such shares on, and such certificate shall
be dated, the next succeeding Business Day on which the Preferred
Stock transfer books of the Company are open. Prior to the
exercise of the Rights evidenced thereby, the holder of a Right
Certificate shall not be entitled to any rights of a holder of
Preferred Stock 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 OF SHARES OR
NUMBER OF RIGHTS
The Purchase Price, the number of Preferred Stock 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 Preferred Stock, (B) subdivide the
outstanding Preferred Stock, (C) combine the outstanding
Preferred Stock into a smaller number of Preferred Stock 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) and in Section 7(f) hereof, the
Purchase Price in effect at the time of the record date for such
dividend or of the effective date of such subdivision,
combination or reclassification, and the number and kind of
shares of capital stock issuable on such date, shall be
proportionately adjusted so that the holder of any Right
exercised after such time shall be entitled to receive the
aggregate number and kind of shares of capital stock which, if
such Right had been exercised immediately prior to such date and
at a time when the Preferred Stock transfer books of the Company
were open, he would have owned upon such exercise and been
entitled to receive by virtue of such dividend, subdivision,
combination or reclassification; PROVIDED, HOWEVER, that in no
event shall the consideration to be paid upon the exercise of one
Right be less than the aggregate par value of the shares of
capital stock of the Company issuable upon exercise of one Right.
If an event occurs which would require an adjustment under both
Section 11(a)(i) and Section 11(a)(ii), 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).
(ii) Subject to Section 24 of this Agreement, at the
close of business on the tenth (10th) day after the Stock
Acquisition Date, or such later date as may be provided by the
Board of Directors under the terms of Section 23(a), ("Flip-In
Event"), proper provision shall be made so that each holder of a
Right, except as provided below in Section 7(f) hereof, shall
thereafter have a 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 (such number of shares
being referred to herein as the "Adjustment Stock") 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 is then exercisable
and dividing that product by (y) 50% of the current per share
market price (determined pursuant to Section 11(d) hereof) of
Common Stock on the date on which the first of the events listed
above in this subparagraph (ii) occurs. In the event that any
Person shall become an Acquiring Person and the Rights shall then
be outstanding, the Company shall not take any action which would
eliminate or diminish the benefits intended to be afforded by the
Rights.
(iii) The right to buy Common Stock of the Company
pursuant to subparagraph (ii) of this paragraph (a) shall not
arise as a result of any Person becoming an Acquiring Person
through a purchase of Common Stock pursuant to a tender offer
made in the manner prescribed by Section 14(d) of the Exchange
Act and the rules and regulations promulgated thereunder;
PROVIDED, HOWEVER, that such tender offer shall provide for the
acquisition of all of the outstanding Common Stock held by any
Person other than such Person and its Affiliates or Associates at
a price and on terms determined by at least a majority of the
members of the Board of Directors who are not officers of the
Company and who are not representatives, nominees, Affiliates or
Associates of an Acquiring Person, after receiving advice from
one or more investment or financial advisers, to be (A) fair to
stockholders from a financial perspective (taking into account
all factors which such members of the Board deem relevant
including, without limitation, prices which could reasonably be
achieved if the Company or its assets were sold on an orderly
basis designed to realize maximum value) and (B) otherwise in the
best interests of the Company and its stockholders, employees,
customers and communities in which the Company does business.
(iv) In the event that there shall not be sufficient
Common Stock authorized but unissued to permit the exercise in
full of the Rights in accordance with the foregoing subparagraph
(ii), the Company shall: (A) determine the excess of (1) the
value of the Adjustment Stock issuable upon the exercise of a
Right ("Current Value"), over (2) the Purchase Price (such excess
being hereinafter referred to as the "Spread"), and (B) with
respect to each Right, make adequate provision to substitute for
such unavailable Adjustment Stock, upon payment of the applicable
Purchase Price, (1) cash, (2) a reduction in the Purchase Price,
(3) other equity securities of the Company, including without
limitation, Preferred Stock, (4) debt securities of the Company,
(5) other assets, or (6) any combination of the foregoing,
having, together with the Adjustment Stock issued upon exercise
of such Right, an aggregate value equal to the Current Value,
where such aggregate value has been determined by the Board of
Directors of the Company based upon the advice of a nationally
recognized investment banking firm selected by the Board of
Directors of the Company; PROVIDED, HOWEVER, if, within 30 days
following the date of the Flip-In Event, the Company shall have
not made adequate provision to deliver value pursuant to clause
(B) above, then the Company shall be obligated to deliver, upon
the surrender for exercise of a Right and without requiring
payment of the Purchase Price, Common Stock (to the extent such
shares are available) and then, if necessary, cash, which shares
and/or cash have an aggregate value equal to the Spread. If the
Board of Directors of the Company shall determine in good faith
that it is likely that sufficient additional Common Stock could
be authorized for issuance upon exercise in full of the Rights,
the 30-day period set forth above may be extended to the extent
necessary, but not more than 120 days following the date of the
occurrence of the Flip-In Event, in order that the Company may
seek shareholder approval for the authorization of such
additional shares (such period, as it may be extended,
hereinafter referred to as the "Substitution Period"). To the
extent that the Company determines that action need be taken
pursuant to the first and/or second sentences of this Section
11(a)(iv), the Company (x) shall provide, subject to Section
11(a)(ii) 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. For purposes
of this Section 11(a)(iv), the value of the Common Stock shall be
the current per share market price (as determined pursuant to
Section 11(d) hereof) per Common Stock shares on the date of the
occurrence of the earliest of the Flip-In Event.
(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 (for a period expiring within 45
calendar days after such record date) to subscribe for or
purchase Preferred Stock (or shares having the same rights,
privileges and preferences as the Preferred Stock ("equivalent
preferred shares")) or securities convertible into Preferred
Stock or equivalent preferred shares at a price per Preferred
Stock shares or equivalent preferred share (or having a
conversion price per share, if a security convertible into
Preferred Stock or equivalent preferred shares) less than the
then current per share market price of the Preferred Stock (as
defined in Section 11(d)) on such record date, the Purchase Price
to be in effect after such record date shall be determined by
multiplying the Purchase Price in effect immediately prior to
such record date by a fraction, the numerator of which shall be
the number of Preferred Stock outstanding on such record date
plus the number of Preferred Stock which the aggregate offering
price of the total number of Preferred Stock and/or equivalent
preferred shares so to be offered (and/or the aggregate initial
conversion price of the convertible securities so to be offered)
would purchase at such current per share market price and the
denominator of which shall be the number of Preferred Stock
outstanding on such record date plus the number of additional
Preferred Stock and/or equivalent preferred shares to be offered
for subscription or purchase (or into which the convertible
securities so to be offered are initially convertible); PROVIDED,
HOWEVER, that in no event shall the consideration to be paid upon
the exercise of one Right be less than the aggregate par value of
the shares of capital stock of the Company issuable upon exercise
of one Right. In case such subscription price may be paid in a
consideration part or all of which shall be in a form other than
cash, the value of such consideration shall be as determined in
good faith by the Board of Directors of the Company, whose
determination shall be described in a statement filed with the
Rights Agent. 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 record date is fixed; and in the event that such
rights, options or warrants are not so issued, the Purchase Price
shall be adjusted to be the Purchase Price which would then be in
effect if such record date had not been fixed.
(c) In case the Company shall fix a record date for the
making of a distribution to all holders of the Preferred Stock
(including any such distribution made in connection with a
consolidation or merger in which the Company is the continuing or
surviving corporation) of evidences of indebtedness or assets
(other than a regular quarterly cash dividend or a dividend
payable in 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 then current per share market
price of the Preferred Stock on such record date, less the fair
market value (as determined in good faith by the Board of
Directors of the Company, whose determination shall be described
in a statement filed with the Rights Agent) of the portion of the
assets or evidences of indebtedness so to be distributed or of
such subscription rights or warrants applicable to one Preferred
Stock shares and the denominator of which shall be such current
per share market price of the Preferred Stock; PROVIDED, HOWEVER,
that in no event shall the consideration to be paid upon the
exercise of one Right be less than the aggregate par value of the
shares of capital stock of the Company to be issued upon exercise
of one Right. Such adjustments shall be made successively
whenever such a record date is fixed; and in the event that such
distribution is not so made, the Purchase Price shall again be
adjusted to be the Purchase Price which would then be in effect
if such record date had not been fixed.
(d) (i) For the purpose of any computation hereunder, the
"current per share market price" of any security (a "Security"
for the purpose of this Section 11(d)(i)) on any date shall be
deemed to be the average of the daily closing prices per share of
such Security for the 20 consecutive Trading Days (as such term
is hereinafter defined) immediately prior to such date; PROVIDED,
HOWEVER, that in the event that the current per share market
price of the Security is determined during a period following the
announcement by the issuer of such Security of (A) a dividend or
distribution on such Security payable in shares of such Security
or securities convertible into such shares, or (B) any
subdivision, combination or reclassification of such Security and
prior to the expiration of 20 Trading Days after the ex-dividend
date for such dividend or distribution, or the record date for
such subdivision, combination or reclassification, then, and in
each such case, the current per share market price shall be
appropriately adjusted to reflect the current market price per
share equivalent of such Security. 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 Security is 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 Security is listed or admitted to trading or, if the
Security is not listed or admitted to trading on any national
securities exchange, the last reported trade in the
over-the-counter market, as reported by the NASDAQ National
Market ("NASDAQ") or such other system then in use, or, if on any
such date the Security is 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 Security
selected by the Board of Directors of the Company. The term
"Trading Day" shall mean a day on which the principal national
securities exchange on which the Security is listed or admitted
to trading is open for the transaction of business or, if the
Security is not listed or admitted to trading on any national
securities exchange, a Business Day.
(ii) For the purpose of any computation hereunder, the
"current per share market price" of the Preferred Stock shall be
determined in accordance with the method set forth in
Section 11(d)(i). If the Preferred Stock are not publicly
traded, the "current per share market price" of the Preferred
Stock shall be conclusively deemed to be the current per share
market price of the Common Stock as determined pursuant to
Section 11(d)(i) (appropriately adjusted to reflect any stock
split, stock dividend or similar transaction occurring after the
date hereof), multiplied by one hundred. If neither the Common
Stock nor the Preferred Stock are publicly held or so listed or
traded, "current per share market price" shall mean the fair
value per share as determined in good faith by the Board of
Directors of the Company, whose determination shall be described
in a statement filed with the Rights Agent.
(e) No adjustment in the Purchase Price shall be required
unless such adjustment would require an increase or decrease of
at least 1% in the Purchase Price; PROVIDED, HOWEVER, that any
adjustments which by reason of this Section 11(e) are not
required to be made shall be carried forward and taken into
account in any subsequent adjustment. All calculations under
this Section 11 shall be made to the nearest cent or to the
nearest one one-millionth of a Preferred Stock shares or one
ten-thousandth of any other share or security, as the case may
be. Notwithstanding the first sentence of this Section 11(e),
any adjustment required by this Section 11 shall be made no later
than the earlier of (i) three years from the date of the
transaction which requires such adjustment or (ii) the date of
the expiration of the right to exercise any Rights.
(f) If as a result of an adjustment made pursuant to
Section 11(a) or Section 13 hereof, the holder of any Right
thereafter exercised shall become entitled to receive any shares
of capital stock of the Company other than Preferred Stock,
thereafter the number of such other shares so receivable upon
exercise of any Right 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 Section 11(a), (b) (c), (e), (g), (h), (i), (j), (k), and (m),
inclusive, and the provisions of Sections 7, 9, 10, 13, and 14,
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 Preferred Stock shares
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 Preferred Stock shares (calculated to the nearest one
one-millionth of a Preferred Stock shares) 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 substitution for any adjustment in the number of one
one-hundredths of a Preferred Stock shares purchasable upon the
exercise of a Right. Each of the Rights outstanding after such
adjustment of the number of Rights shall be exercisable for the
number of one one-hundredths of a Preferred Stock shares 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 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 Right
Certificates have been issued, shall be at least 10 days later
than the date of the public announcement. If Right 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
Right Certificates on such record date Right 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 Right Certificates held by such holders prior
to the date of adjustment, and upon surrender thereof, if
required by the Company, new Right Certificates evidencing all
the Rights to which such holders shall be entitled after such
adjustment. Right Certificates so to be distributed shall be
issued, executed and countersigned in the manner provided for
herein and shall be registered in the names of the holders of
record of Right 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 Preferred
Stock shares issuable upon the exercise of the Rights, the Right
Certificates theretofore and thereafter issued may continue to
express the Purchase Price and the number of one one-hundredths
of a Preferred Stock shares which were expressed in the initial
Right Certificates issued hereunder.
(k) Before taking any action that would cause an adjustment
reducing the Purchase Price below one one-hundredth of the then
par value, if any, of the 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 non-
assessable 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
until the occurrence of such event the issuing to the holder of
any Right exercised after such record date of the Preferred Stock
and other capital stock or securities of the Company, if any,
issuable upon such exercise over and above the 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 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 it in its sole discretion shall determine to be
advisable in order that any consolidation or subdivision of the
Preferred Stock, issuance wholly for cash of any Preferred Stock
at less than the current market price, issuance wholly for cash
of Preferred Stock or securities which by their terms are
convertible into or exchangeable for Preferred Stock, dividends
on Preferred Stock payable in Preferred Stock or issuance of
rights, options or warrants referred to hereinabove in Section
11(b), 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, or
merge with and into, any other Person (other than a Subsidiary of
the Company in a transaction that complies with Section 11(o)),
(ii) permit or cause any Person to consolidate with the Company,
or merge with and into the Company (other than a Subsidiary of
the Company in a transaction that complies with Section 11(o)),
or (iii) sell or otherwise transfer (or permit any Subsidiary to
sell or transfer), in one or more transactions, assets or earning
power aggregating 50% or more of the assets or earning power of
the Company and its Subsidiaries (taken as a whole) 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)), if 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 that would substantially diminish or otherwise eliminate
the benefits intended to be afforded by the Rights.
(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 of the Company to take) any action if at the time such
action is taken it is reasonably foreseeable that such action
will diminish substantially or otherwise eliminate the benefits
intended to be afforded by the Rights.
(p) In the event that at any time after the date of this
Agreement and prior to the Distribution Date, the Company shall
(i) declare or pay any dividend on the Common Stock payable in
Common Stock or (ii) effect a subdivision, combination or
consolidation of the Common Stock (by reclassification or
otherwise than by payment of dividends in Common Stock) into a
greater or lesser number of Common Stock, then in any such case
(A) the number of one one-hundredths of a Preferred Stock shares
purchasable after such event upon proper exercise of each Right
shall be determined by multiplying the number of one
one-hundredths of a Preferred Stock shares so purchasable
immediately prior to such event by a fraction, the numerator of
which is the number of Common Stock outstanding immediately
before such event and the denominator of which is the number of
Common Stock outstanding immediately after such event, and (B)
each Common Stock shares outstanding immediately after such event
shall have issued with respect to it that number of Rights which
each Common Stock shares outstanding immediately prior to such
event had issued with respect to it. The adjustments provided
for in this Section 11(p) shall be made successively whenever
such a dividend is declared or paid or such a subdivision,
combination or consolidation is effected.
(q) The exercise of Rights under Section 11(a)(ii) shall
only result in the loss of rights under Section 11(a)(ii) to the
extent so exercised and shall not otherwise affect the rights
represented by the Rights under this Rights Agreement, including
the rights represented by Section 13.
SECTION 12. CERTIFICATE OF ADJUSTED PURCHASE PRICE OR NUMBER
OF SHARES
Whenever an adjustment is made as provided in Sections 11
and 13 hereof, the Company shall promptly (a) prepare a
certificate setting forth such adjustment, and a brief statement
of the facts accounting for such adjustment, (b) file with the
Rights Agent and with each transfer agent for the Common Stock or
the Preferred Stock a copy of such certificate and (c) mail a
brief summary thereof to each holder of a Right Certificate in
accordance with Section 25 hereof.
SECTION 13. CONSOLIDATION, MERGER OR SALE OR TRANSFER OF
ASSETS OR EARNING POWER
(a) If, following the Distribution Date, directly or
indirectly, (i) the Company shall consolidate with, or merge with
and into, any other Person and the Company shall not be the
continuing or surviving corporation of such consolidation or
merger, (ii) any Person shall consolidate with the Company, or
merge with and into the Company and the Company shall be the
continuing or surviving corporation of such merger and, in
connection with such merger, all or part of the Common Stock
shall be changed into or exchanged for stock or other securities
of any other Person (or the Company) or cash or any other
property, (iii) any Person shall acquire all or a majority of the
Common Stock pursuant to a statutory plan of exchange, or (iv)
the Company shall sell or otherwise transfer (or one or more of
its Subsidiaries shall sell or otherwise transfer), in one or
more transactions, assets or earning power aggregating 50% or
more of the assets or earning power of the Company and its
Subsidiaries (taken as a whole) to any other Person other than
the Company or one or more of its wholly-owned Subsidiaries,
then, and in each such case, proper provision shall be made so
that (A) each holder of a Right (except as otherwise provided
herein) shall thereafter have the right to receive, upon the
exercise thereof at a price equal to the then current Purchase
Price multiplied by the number of one one-hundredths of a
Preferred Stock shares for which a Right is then exercisable, in
accordance with the terms of this Agreement and in lieu of
Preferred Stock, such number of Common Stock of the Principal
Party (as hereinafter defined), not subject to any liens,
encumbrances, rights of first refusal or other adverse claims, as
shall equal the result obtained by (1) multiplying the then
current Purchase Price by the number of one one-hundredths of a
Preferred Stock shares for which a Right is then exercisable and
dividing that product by (2) 50% of the then current per share
market price of the Common Stock (determined pursuant to Section
11(d) hereof) of such Principal Party on the date of consummation
of such consolidation, merger, sale or transfer; (B) such
Principal Party shall thereafter be liable for, and shall assume,
by virtue of such consolidation, merger, sale or transfer, all
the obligations and duties of the Company pursuant to this
Agreement; (C) the term "Company" shall thereafter be deemed to
refer to such Principal Party, it being specifically intended
that the provisions of Section 11 shall apply only to such
Principal Party after the first occurrence of an event described
in this Section 13(a); (D) such Principal Party shall take such
steps (including, but not limited to, the reservation of a
sufficient number of its Common Stock in accordance with Section
9 hereof) in connection with such consummation as may be
necessary to assure that the provisions hereof shall thereafter
be applicable, as nearly as reasonably may be, in relation to the
Common Stock thereafter deliverable upon the exercise of the
Rights; and (E) the provisions of Section 11(a)(ii) shall be of
no further effect following the first occurrence of any event
described in this Section 13(a).
(b) "Principal Party" shall mean:
(i) in the case of any transaction described in clause
(i), (ii) or (iii) of Section 13(a), (A) the Person that is the
issuer of any securities into which Common Stock of the Company
are converted in such merger, consolidation or for which they are
exchanged in such statutory plan of exchange, or, if there is
more than one such issuer, the issuer of Common Stock that has
the highest aggregate current per share market price (determined
in accordance with Section 11(d)) and (B) if no securities are so
issued, the Person that is the other party to such merger,
consolidation or statutory plan of exchange, or, if there is more
than one such Person, the Person the Common Stock of which has
the highest aggregate current per share market price (determined
in accordance with Section 11(d)); and
(ii) in the case of any transaction described in clause
(iv) of Section 13(a), the Person that is the party receiving the
largest portion of the assets or earning power transferred
pursuant to such transaction or transactions, or, if each Person
that is a party to such transaction or transactions receives the
same portion of the assets or earning power transferred pursuant
to such transaction or transactions or if the Person receiving
the largest portion of the assets or earning power cannot be
determined, whichever Person the Common Stock of which has the
highest aggregate current per share market price (determined in
accordance with Section 11(d)); provided, however, that in any
such case, (A) if the Common Stock of such Person are not at such
time and have not been continuously over the preceding
twelve-month period registered under Section 12 of the Exchange
Act ("Registered Common Stock"), or such Person is not a
corporation, and such Person is a direct or indirect Subsidiary
of another Person that has Registered Common Stock outstanding,
"Principal Party" shall refer to such other Person; (B) if the
Common Stock of such Person are not Registered Common Stock or
such Person is not a corporation, and such Person is a direct or
indirect Subsidiary of another Person but is not a direct or
indirect Subsidiary of another Person which has Registered Common
Stock outstanding, "Principal Party" shall refer to the ultimate
parent entity of such first-mentioned Person; (C) if the Common
Stock of such Person are not Registered Common Stock or such
Person is not a corporation, and such Person is directly or
indirectly controlled by more than one Person, and one or more of
such other Persons has Registered Common Stock outstanding,
"Principal Party" shall refer to whichever of such other Persons
is the issuer of the Registered Common Stock having the highest
aggregate current per share market price (determined in
accordance with Section 11(d)); and (D) if the Common Stock of
such Person are not Registered Common Stock or such Person is not
a corporation, and such Person is directly or indirectly
controlled by more than one Person, and none of such other
Persons have Registered Common Stock outstanding, "Principal
Party" shall refer to whichever ultimate parent entity is the
corporation having the greatest shareholders' equity or, if no
such ultimate parent entity is a corporation, shall refer to
whichever ultimate parent entity is the entity having the
greatest net assets.
(c) The Company shall not consummate any such
consolidation, merger, statutory plan of exchange, sale or
transfer unless prior thereto the Company and the Principal Party
shall have executed and delivered to the Rights Agent a
supplemental agreement confirming that (i) such Principal Party
shall, upon consummation of such consolidation, merger, statutory
plan of exchange or sale or transfer of assets or earning power,
assume this Agreement in accordance with Section 13, (ii) all
rights of first refusal or preemptive rights in respect of the
issuance of Common Stock of such Principal Party upon exercise of
outstanding Rights have been waived, (iii) any provision of the
authorized securities of such Principal Party or of its charter,
bylaws or other instruments governing its corporate affairs which
would obligate such Principal Party to issue in connection with,
or as a consequence of, the consummation of a transaction
referred to in Section 13(a), Common Stock of such Principal
Party at less than the then-current per share market price
(determined in accordance with Section 11(d)(i)) or securities
exercisable for, or convertible into, such Common Stock at less
than such then-current per share market price (other than to the
holders of Rights pursuant to this Section 13) have been waived
or canceled, and (iv) such transaction shall not result in a
default by such Principal Party under this Agreement and further
providing that, as soon as practicable after the date of any
consolidation, merger, statutory plan of exchange or sale or
transfer of assets or earning power referred to in Section 13(a),
such Principal Party will:
(A) prepare and file a registration statement
under the Securities Act of 1933, as amended, with respect to the
Rights and the securities purchasable upon exercise of the Rights
on an appropriate form, use its best efforts to cause such
registration statement to become effective as soon as practicable
after such filing and use its best efforts to cause such
registration statement to remain effective (with a prospectus at
all times meeting the requirements of the Securities Act of 1933,
as amended) until the Final Expiration Date of the Rights, and
similarly comply with applicable state securities laws;
(B) use its best efforts to qualify or register
the Rights and the securities purchasable upon exercise of the
Rights under the Blue Sky laws of such jurisdictions as may be
necessary or appropriate;
(C) use its best efforts to list (or continue the
listing of) the Rights and the securities purchasable upon
exercise of the Rights or to meet the eligibility requirements
for quotation of the Rights and such securities on NASDAQ or
other system then in use; and
(D) deliver to holders of the Rights historical
financial statements for such Principal Party which comply in all
respects with the requirements for registration on Form 10 (or
any successor form) under the Exchange Act.
In the event that at any time after the occurrence of an
event described in Section 11(a)(ii) hereof some or all of the
Rights shall not have then been exercised at the time of the
occurrence of an event described in Section 13(a) hereof, the
Rights which have not theretofore been exercised shall thereafter
be exercisable in the manner described in Section 13(a) (without
taking into account any prior adjustment required by
Section 11(a)(ii)).
(d) The provisions of this Section 13 shall similarly apply
to successive mergers or consolidations or sales or other
transfers.
(e) Notwithstanding anything in this Agreement to the
contrary, this Section 13 shall not be applicable to a
transaction described in Section 13(a)(i), (ii) or (iii) if:
(i) such transaction is consummated with a Person or
Persons who acquired Common Stock pursuant to a tender offer
described in Section 11(a)(iii) (or with a wholly-owned
Subsidiary of any such Person or Persons),
(ii) the price per Common Stock shares offered in such
transaction is not less than the price per Common Stock shares
paid to all holders of Common Stock whose shares were purchased
pursuant to such tender or exchange offer, and
(iii) the form of consideration being offered to
the remaining holders of Common Stock pursuant to such
transaction is the same as the form of consideration paid
pursuant to such tender offer. Upon consummation of any such
transaction contemplated by this Section 13(e), all Rights shall
expire.
The Company shall not enter into any transaction of the kind
referred to in this Section 13 if at the time of such transaction
there are any rights, warrants, instruments, or securities
outstanding, or any agreements or arrangements which, as a result
of the consummation of such transaction, would eliminate or
substantially diminish the benefits intended to be afforded by
the Rights. The provisions of this Section 13 shall similarly
apply to successive mergers or consolidations or sales or other
transfers. The rights under this Section 13 shall be in addition
to the rights to exercise Rights and adjustments under
Section 11(a)(ii) and shall survive any exercise thereof.
SECTION 14. FRACTIONAL RIGHTS AND FRACTIONAL SHARES
(a) The Company shall not be required to issue fractions of
Rights or to distribute Right Certificates which evidence
fractional Rights. In lieu of such fractional Rights, there
shall be paid to the registered holders of the Right 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 the 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 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 reported trade in the
over-the-counter market, as reported by NASDAQ or such other
system then in use or, if on any such date the Rights are not
quoted by any such organization, the average of the closing bid
and asked prices as furnished by a professional market maker
making a market in the Rights selected by the Board of Directors
of the Company. If on any such date no such market maker is
making a market in the Rights, the fair value of the Rights on
such date as determined in good faith by the Board of Directors
of the Company shall be used.
(b) The Company shall not be required to issue fractions of
Preferred Stock (other than fractions which are integral
multiples of one one-hundredth of a Preferred Stock shares) upon
exercise of the Rights or to distribute certificates which
evidence fractional Preferred Stock (other than fractions which
are integral multiples of one one-hundredth of a Preferred Stock
shares). Fractions of Preferred Stock in integral multiples of
one one-hundredth of a Preferred Stock shares may, at the
election of the Company, be evidenced by depositary receipts,
pursuant to an appropriate agreement between the Company and a
depositary selected by it; PROVIDED, that such agreement shall
provide that the holders of such depositary receipts shall have
all the rights, privileges and preferences to which they are
entitled as beneficial owners of the Preferred Stock represented
by such depositary receipts. In lieu of fractional Preferred
Stock that are not integral multiples of one one-hundredth of a
Preferred Stock shares, the Company shall pay to the registered
holders of Right 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 Preferred Stock
shares. For the purposes of this Section 14(b), the current
market value of a Preferred Stock shares shall be the closing
price of a Preferred Stock shares (as determined pursuant to the
second sentence of Section 11(d)(i) hereof) for the Trading Day
immediately prior to the date of such exercise.
(c) The holder of a Right by the acceptance of the Right
expressly waives his right to receive any fractional Rights or
any fractional shares upon exercise of a Right (except as
provided above).
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
hereof, are vested in the respective registered holders of the
Right Certificates (and, prior to the Distribution Date, the
registered holders of the Common Stock); and any registered
holder of any Right Certificate (or, prior to the Distribution
Date, of the Common Stock), without the consent of the Rights
Agent or the holder of any other Right 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 Right Certificate in the manner
provided in such Right Certificate and in this Agreement.
Without limiting the foregoing or any remedies available to the
holders of Rights, it is specifically acknowledged that the
holders of Rights would not have an adequate remedy at law for
any breach of this Agreement and will be entitled to specific
performance of the obligations under, and injunctive relief
against actual or threatened violations of the obligations of any
Person subject to, this Agreement. Holders of rights shall be
entitled to recover the reasonable costs and expenses, including
attorneys' fees, incurred by them in any action to enforce the
provisions of this Agreement.
SECTION 16. AGREEMENT OF RIGHT HOLDERS
Every holder of a Right, by accepting the same, consents and
agrees with the Company 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 the Common
Stock;
(b) after the Distribution Date, the Right Certificates are
transferable only on the registry books of the Rights Agent if
surrendered at the principal office of the Rights Agent, duly
endorsed or accompanied by a proper instrument of transfer; and
(c) the Company may deem and treat the person in whose name
the Right 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
Right 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 affected by any notice to the contrary.
SECTION 17. RIGHT CERTIFICATE HOLDER NOT DEEMED A STOCKHOLDER
No holder of any Right Certificate, by reason of being a
holder of such Right Certificate, shall be entitled to vote,
receive dividends or be deemed for any purpose the holder of the
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 Right
Certificate be construed to confer upon the holder of any Right
Certificate, by reason of being a holder of such Right
Certificate, 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 Right 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 other disbursements
incurred in the 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, or expense,
incurred without negligence, bad faith or willful misconduct on
the part of the Rights Agent, for anything done or omitted by the
Rights Agent in connection with the acceptance and administration
of this Agreement, including the costs and expenses of defending
against any claim of liability arising therefrom, directly or
indirectly.
(b) The Rights Agent shall be protected and shall incur no
liability for, or in respect of any action taken, suffered or
omitted by it in connection with, its administration of this
Agreement in reliance upon any Right Certificate or certificate
for the Preferred Stock or 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.
SECTION 19. MERGER OR CONSOLIDATION OR CHANGE OF NAME OF
RIGHTS AGENT
(a) Any corporation into which the Rights Agent or any
successor Rights Agent may be merged or with which it may be
consolidated, or any corporation resulting from any merger or
consolidation to which the Rights Agent or any successor Rights
Agent shall be a party, or any corporation succeeding to the
stock transfer or corporate trust 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 that such corporation would be eligible for
appointment as a successor Rights Agent under the provisions of
Section 21 hereof. In case at the time such successor Rights
Agent shall succeed to the agency created by this Agreement any
of the Right Certificates shall have been countersigned but not
delivered, any such successor Rights Agent may adopt the
countersignature of the predecessor Rights Agent and deliver such
Right Certificates so countersigned; and in case at that time any
of the Right Certificates shall not have been countersigned, any
successor Rights Agent may countersign such Right 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 Right
Certificates shall have the full force provided in the Right
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 Right Certificates shall
have been countersigned but not delivered, the Rights Agent may
adopt the countersignature under its prior name and deliver Right
Certificates so countersigned; and in case at that time any of
the Right Certificates shall not have been countersigned, the
Rights Agent may countersign such Right Certificates either in
its prior name or in its changed name; and in all such cases such
Right Certificates shall have the full force provided in the
Right Certificates and in this Agreement.
SECTION 20. DUTIES OF RIGHTS AGENT
The Rights Agent undertakes the duties and obligations
imposed by this Agreement upon the following terms and
conditions, by all of which the Company and the holders of Right
Certificates, by their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel (who
may be legal counsel for the Company), and the opinion of such
counsel shall be full and complete authorization and protection
to the Rights Agent as to any action taken or omitted by it in
good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this
Agreement the Rights Agent shall deem it necessary or desirable
that any fact or matter be proved or established by the Company
prior to taking or suffering any action hereunder, such fact or
matter, including, without limitation, the identity of any
Acquiring Person and the determination of "current per share
market price," (unless other evidence in respect thereof be
herein specifically prescribed) may be deemed to be conclusively
proved and established by a certificate signed by any one of the
Chairman of the Board, the Chief Executive Officer, the
President, any Executive Vice President, or the Secretary of the
Company and delivered to the Rights Agent; and such certificate
shall be full authorization to the Rights Agent for any action
taken or suffered in good faith by it under the provisions of
this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the
Company and any other Person only for its own negligence, bad
faith or willful misconduct. Anything in this Agreement to the
contrary notwithstanding, in no event shall the Rights Agent be
liable for special, indirect or consequential 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 and regardless of the form of
action.
(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 Right Certificates (except its
countersignature thereof) or be required to verify the same, but
all such statements and recitals are and shall be deemed to have
been made by the Company only.
(e) The Rights Agent shall not be under any responsibility
in respect of the validity of this Agreement or the execution and
delivery hereof (except the due execution hereof by the Rights
Agent) or in respect of the validity or execution of any Right
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 Right
Certificate; nor shall it be responsible for any change in the
exercisability of the Rights (including the Rights becoming void
pursuant to Section 11(a)(ii) hereof) or any adjustment in the
terms of the Rights (including the manner, method or amount
thereof) provided for in Section 3, 11, 13, 23 or 24, 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 Right Certificates after actual notice that
such change or adjustment is required); nor shall it by any act
hereunder be deemed to make any representation or warranty as to
the authorization or reservation of any Preferred Stock to be
issued pursuant to this Agreement or any Right Certificate or as
to whether any Preferred Stock will, when 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 any one of the Chairman of the Board, the Chief
Executive Officer, the President, any Executive Vice President,
or the Secretary of the Company, and to apply to such officers
for advice or instructions in connection with its duties, and it
shall not be liable for any action taken or suffered by it in
good faith in accordance with instructions of any such officer or
for any delay in acting while waiting for those instructions.
(h) The Rights Agent and any stockholder, director, officer
or employee of the Rights Agent may buy, sell or deal in any of
the Rights or other securities of the Company or become
pecuniarily interested in any transaction in which the Company
may be interested, or contract with or lend money to the Company
or otherwise act as fully and freely as though it were not Rights
Agent under this Agreement. Nothing herein shall preclude the
Rights Agent from acting in any other capacity for the Company or
for any other legal entity.
(i) The Rights Agent may execute and exercise any of the
rights or powers hereby vested in it or perform any duty
hereunder either itself or by or through its attorneys or agents,
and the Rights Agent shall not be answerable or accountable for
any act, default, neglect or misconduct of any such attorneys or
agents or for any loss to the Company resulting from any such
act, default, neglect or misconduct, provided reasonable care was
exercised in the selection and continued employment thereof.
(j) No provision of this Agreement shall require the Rights
Agent to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder or in the exercise of its rights if there shall be
reasonable grounds for believing that repayment of such funds or
adequate indemnification against such risk or liability is not
reasonably assured to it.
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 30
days' notice in writing mailed to the Company and to each
transfer agent of the Common Stock or Preferred Stock by
registered or certified mail, and to the holders of the Right
Certificates by first-class mail. The Company may remove the
Rights Agent or any successor Rights Agent upon 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 or Preferred Stock by registered or certified mail, and to
the holders of the Right 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 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 Right Certificate (who shall,
with such notice, submit his Right Certificate for inspection by
the Company), then the registered holder of any Right Certificate
may apply to any court of competent jurisdiction for the
appointment of a new Rights Agent. Any successor Rights Agent,
whether appointed by the Company or by such a court, shall be a
corporation organized and doing business under the laws of the
United States or any state of the United States so long as such
corporation is authorized to do business as a banking
institution, is authorized under such laws to exercise corporate
trust or stock transfer powers, is in good standing, and is
subject to supervision or examination by federal or state
authority, and has at the time of its appointment as Rights Agent
a combined capital and surplus of at least $50 million. 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 with the predecessor Rights Agent and each transfer
agent of the Common Stock or Preferred Stock, and mail a notice
thereof in writing to the registered holders of the Right
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 RIGHT CERTIFICATES
Notwithstanding any of the provisions of this Agreement or
of the Rights to the contrary, the Company may, at its option,
issue new Right Certificates evidencing Rights in such form as
may be approved by its Board of Directors to reflect any
adjustment or change in the Purchase Price and the number or kind
or class of shares or other securities or property purchasable
under the Right 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 earlier of the Redemption Date
and the Final Expiration Date, the Company (i) 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, notes or debentures issued by the Company, and (ii)
may, in any other case, if deemed necessary or appropriate by the
Board of Directors of the Company, issue Rights Certificates
representing the appropriate number of Rights in connection with
such issuance or sale; provided, however, that no such Right
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 Right Certificate would be
issued, and no such Right 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 of Directors of the Company may, at its
option, at any time prior to the earlier of (i) the close of
business on the tenth (10th) day following the Stock Acquisition
Date (which ten-day period may be extended by the Board of
Directors for successive periods of ten days, not to exceed an
aggregate of 30 days following the Stock Acquisition Date) or
(ii) the Final Expiration Date, redeem all but not less than all
the then outstanding Rights at a redemption price of $0.001 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"); PROVIDED, HOWEVER, that
if, following the occurrence of a Stock Acquisition Date and
following the expiration of the right of redemption hereunder but
prior to any Triggering Event, (i) a Person who is an Acquiring
Person shall have transferred or otherwise disposed of a number
of shares of Common Stock in one transaction or series of
transactions, not direct or indirectly involving the Company or
any of its Subsidiaries, which did not result in the occurrence
of a Triggering Event such that such Person is thereafter a
Beneficial Owner of 10% or less of the outstanding shares of
Common Stock, and (ii) there are no other Persons, immediately
following the occurrence of the event described in clause (i),
who are Acquiring Persons, then the right of redemption shall be
reinstated and thereafter be subject to the provisions of this
Section 23. Notwithstanding anything contained in this Agreement
or the contrary, the Rights shall not exercisable after the first
occurrence of a Section 11(a)(ii) Event until such time as the
Company's right of redemption hereunder has expired. The
Company, may, at its option, pay the Redemption Price in cash,
shares of Common Stock (based on the "current market price," as
defined in Section 11(d)(i) hereof, of the Common Stock at the
time of redemption) or any other form of consideration deemed
appropriate by the Board of Directors.
(b) Immediately upon the action of the Board of Directors
of the Company ordering the redemption of the Rights pursuant to
paragraph (a) 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. The Company shall
promptly give public notice of any such redemption; PROVIDED,
HOWEVER, that the failure to give, or any defect in, any such
notice shall not affect the validity of such redemption. Within
10 days after such action of the Board of Directors ordering the
redemption of the Rights, the Company shall mail a notice of
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.
SECTION 24. EXCHANGE
(a) The Board of Directors of the Company may, at its
option, at any time after any Person becomes an Acquiring Person,
exchange all or part of the then outstanding and exercisable
Rights (which shall not include Rights that have become void
pursuant to the provisions of Section 11(a)(ii) hereof) for
Common Stock at an exchange ratio of one Common Stock shares per
Right, appropriately adjusted to reflect any stock split, stock
dividend or similar transaction occurring after the date hereof
(such exchange ratio being hereinafter referred to as the
"Exchange Ratio"). Notwithstanding the foregoing, the Board of
Directors shall not be empowered to effect such exchange at any
time after any Person (other than the Company, any Subsidiary of
the Company, any employee benefit plan of the Company or of any
such Subsidiary, or of 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 50% or more of the Common Stock then outstanding.
(b) Immediately upon the action of the Board of Directors
of the Company ordering the exchange of any Rights pursuant to
subsection (a) of this Section 24 and without any further action
and without any notice, the right to exercise such Rights shall
terminate and the only right thereafter of a holder of such
Rights shall be to receive that number of Common Stock equal to
the number of such Rights held by such holder multiplied by the
Exchange Ratio. The Company shall promptly give public notice of
any such exchange; PROVIDED, HOWEVER, that the failure to give,
or any defect in, such notice shall not affect the validity of
such exchange. The Company promptly shall mail a notice of any
such exchange to all of the holders of such Rights at their last
addresses as they appear upon the registry books of the Rights
Agent. Any notice which is mailed in the manner herein provided
shall be deemed given, whether or not the holder receives the
notice. Each such notice of exchange will state the method by
which the exchange of the Common Stock for Rights will be
effected and, in the event of any partial exchange, the number of
Rights which will be exchanged. Any partial exchange shall be
effected pro rata based on the number of Rights (other than
Rights which have become void pursuant to the provisions of
Section 11(a)(ii) hereof) held by each holder of Rights.
(c) In any exchange pursuant to this Section 24, the
Company, at its option, may substitute Preferred Stock (or
equivalent preferred shares, as such term is defined in
Section 11(b) hereof) for Common Stock exchangeable for Rights,
at the initial rate of one one-hundredth of a Preferred Stock
shares (or equivalent preferred share) for each Common Stock
shares, as appropriately adjusted to reflect adjustments in the
voting rights of the Preferred Stock pursuant to the terms
thereof, so that the fraction of a Preferred Stock shares
delivered in lieu of each Common Stock shares shall have the same
voting rights as one Common Stock shares.
(d) In the event that there shall not be sufficient Common
Stock or Preferred Stock issued but not outstanding or authorized
but unissued to permit any exchange of Rights as contemplated in
accordance with this Section 24, the Company shall use its best
efforts to cause all such action to be taken as may be necessary
to authorize additional Common Stock or Preferred Stock for
issuance upon exchange of the Rights.
(e) The Company shall not be required to issue fractions of
Common Stock or to distribute certificates which evidence
fractional Common Stock. In lieu of such fractional Common
Stock, the Company shall pay to the registered holders of the
Right Certificates with regard to which such fractional Common
Stock would otherwise be issuable an amount in cash equal to the
same fraction of the current market value of a whole Common Stock
shares. For the purposes of this paragraph (e), the current
market value of a whole Common Stock share shall be the closing
price of a Common Stock share (as determined pursuant to the
second sentence of Section 11(d)(i) hereof) for the Trading Day
immediately prior to the date of exchange pursuant to this
Section 24.
SECTION 25. NOTICE OF CERTAIN EVENTS
(a) In case the Company shall propose (i) to pay any
dividend payable in stock of any class to the holders of its
Preferred Stock or to make any other distribution to the holders
of its Preferred Stock (other than a regular quarterly cash
dividend), (ii) to offer to the holders of its Preferred Stock
rights or warrants to subscribe for or to purchase any additional
Preferred Stock or shares of stock of any class or any other
securities, rights or options, (iii) to effect any
reclassification of its Preferred Stock (other than a
reclassification involving only the subdivision of outstanding
Preferred Stock), (iv) to effect any consolidation or merger into
or with, or to effect any sale or other transfer (or to permit
one or more of its Subsidiaries to effect any sale or other
transfer), in one or more transactions, of 50% or more of the
assets or earning power of the Company and its Subsidiaries
(taken as a whole) to, any other Person, (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, combination or consolidation of
the Common Stock (by reclassification or otherwise than by
payment of dividends in Common Stock), then, in each such case,
the Company shall give to each holder of a Right 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, or 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 Common Stock and/or 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 10 days prior
to the record date for determining holders of the Preferred Stock
for purposes of such action, and in the case of any such other
action, at least 10 days prior to the date of the taking of such
proposed action or the date of participation therein by the
holders of the Common Stock and/or 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 the Company shall as
soon as practicable thereafter give to each holder of a Right
Certificate, in accordance with Section 26 hereof, a notice of
the occurrence of such event, which notice shall describe such
event and the consequences of such event to holders of Rights
under Section 11(a)(ii) hereof.
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 Right
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:
Sierra Tahoe Bancorp
10181 Truckee-Tahoe Airport Road
P. O. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: President and Chief Executive Officer
Subject to the provisions of Section 21 hereof, any notice or
demand authorized by this Agreement to be given or made by the
Company or by the holder of any Right 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:
American Stock Transfer & Trust Co.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
Notices or demands authorized by this Agreement to be given
or made by the Company or the Rights Agent to the holder of any
Right Certificate 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
The Board of Directors and the Rights Agent may from time to
time, if the Board so directs, supplement or amend this Agreement
without the approval of any holders of Right Certificates in
order to cure any ambiguity, to correct or supplement any
provision contained herein which may be defective or inconsistent
with any other provisions herein, or to make any other provisions
with respect to the Rights which the Company may deem necessary
or desirable, any such supplement or amendment to be evidenced by
a writing signed by the Company and the Rights Agent; PROVIDED,
HOWEVER, that from and after such time as any Person becomes an
Acquiring Person, this Agreement shall not be amended in any
manner which would adversely affect the interests of the holders
of Rights. Without limiting the foregoing, the Company may at
any time prior to such time as any Person becomes an Acquiring
Person amend this Agreement to raise or lower the thresholds set
forth in Sections l(a) and 3(a), provided the threshold may not
be lowered to less than the greater of (i) any percentage greater
than the largest percentage of the outstanding Common Stock then
known by the Company to be beneficially owned 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 entity holding Common Stock for or pursuant to the
terms of any such plan) and (ii) 10%. This Agreement shall not
be supplemented or amended in any way following the Distribution
Date unless such amendment is approved by a majority of the Board
of Directors whose determination shall be final. Upon the
delivery of a certificate from an appropriate officer of the
Company which states that the propose supplement or amendment is
in compliance with the terms of this Section 27, the Rights Agent
shall have determined in good faith that such supplement or
amendment would adversely affect its interests 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. REGISTRATION OF SECURITIES
The Company may temporarily suspend, for a period of time
not to exceed ninety (90) days, the exercisability of the Rights
in order to prepare and file, if deemed necessary by the Company,
such registration statements and other filings under the
Securities Act of 1933, as amended, and the securities or "blue
sky" laws of any state, with respect to any securities
purchasable upon the exercise of the Rights, and to permit the
same 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. Notwithstanding any provision of this Agreement to the
contrary, the Rights shall not be exercisable in any jurisdiction
unless the requisite qualification has been obtained or a
registration statement has become effective in such jurisdiction.
SECTION 29. DETERMINATION AND ACTIONS BY THE BOARD OF
DIRECTORS
The Board of Directors of the Company shall have the
exclusive power and authority to administer this Agreement and to
exercise all rights and powers specifically granted to the Board
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 to 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.
SECTION 30. 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 31. BENEFITS OF THIS AGREEMENT
Nothing in this Agreement shall be construed to give to any
person or corporation other than the Company, the Rights Agent
and the registered holders of the Right Certificates (and, prior
to the Distribution Date, 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 Right
Certificates (and, prior to the Distribution Date, the Common
Stock).
SECTION 32. SEVERABILITY
If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction or other
authority to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions of this
Agreement shall remain in full force and effect and shall in no
way be affected, impaired or invalidated.
SECTION 33. GOVERNING LAW
This Agreement and each Right Certificate issued hereunder
shall be deemed to be a contract made under the laws of the State
of California and for all purposes shall be governed by and
construed in accordance with the laws of such State applicable to
contracts to be made and performed entirely within such State.
SECTION 34. COUNTERPARTS
This Agreement may be executed in any number of counterparts
and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together
constitute but one and the same instrument.
SECTION 35. DESCRIPTIVE HEADINGS
Descriptive headings of the several Sections of this
Agreement are inserted for convenience only and shall not control
or affect the meaning or construction of any of the provisions
hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and attested, all as of the day and
year first above written.
SIERRA TAHOE BANCORP
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Executive Vice President and
Chief Financial Officer
AMERICAN STOCK TRANSFER & TRUST CO.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
EXHIBIT A
FORM
OF
CERTIFICATE OF DESIGNATION FOR
SERIES A JUNIOR PARTICIPATING PREFERRED SHARES
OF
Sierra Tahoe Bancorp, a California Corporation
Pursuant to Section 401 of the California Corporations Code:
We, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Chief Executive Officer, and
A. ▇▇▇▇▇▇ ▇▇▇▇▇ Secretary, of Sierra Tahoe Bancorp, a corporation
organized and existing under the laws of California
("Corporation"), do hereby certify as follows:
1. The authorized number of shares of the Corporation's
preferred stock is 10,000,000.
2. Pursuant to the authority conferred upon the Board of
Directors by the Articles of Incorporation of the Corporation,
the Board of Directors on December 21, 1995, adopted the
following resolution creating a series of 200,000 shares of
Preferred Stock designated as Series A Junior Participating
Preferred Stock:
RESOLVED FURTHER, That the Board of Directors, to implement
the Rights, pursuant to the authority vested in the Board of
Directors of this Corporation in accordance with the provisions
of its Articles of Incorporation, a series of Preferred Stock of
the Corporation be and hereby is created, and that the
designation and amount thereof and the voting powers, preferences
and relative, participating, optional and other special rights of
the shares of such series, and the qualifications, limitations or
restrictions thereof are as follows:
"SERIES A JUNIOR PARTICIPATING PREFERRED STOCK:
Paragraph 1. DESIGNATION AND AMOUNT. The shares of such series
shall be designated as "Series A Junior Participating Preferred
Stock" (the "Series A Preferred Stock") and the number of shares
constituting the Series A Preferred Stock shall be 200,000. Such
number of shares may be increased or decreased by resolution of
the Board of Directors; PROVIDED, that no decrease shall reduce
the number of shares of Series A Preferred Stock to a number less
than the number of shares then outstanding plus the number of
shares reserved for issuance upon the exercise of outstanding
options, rights or warrants or upon the conversion of any
outstanding securities issued by the Corporation convertible into
Series A Preferred Stock.
Paragraph 2. DIVIDENDS AND DISTRIBUTIONS.
(A) Subject to the rights of the holders of any shares
of any series of Preferred Stock (or any similar stock) ranking
prior and superior to the Series A Preferred Stock with respect
to dividends, the holders of shares of Series A Preferred Stock,
in preference to the holders of Common Stock, no par value (the
"Common Stock"), of the Corporation, and of any other junior
stock, shall be entitled to receive, when, as and if declared by
the Board of Directors out of funds legally available for the
purpose, dividends payable in cash (each payment date determined
by the Board of Directors being referred to herein as a "Dividend
Payment Date"), commencing on the first Dividend Payment Date
after the first issuance of a share or fraction of a share of
Series A Preferred Stock, in an amount per share (subject to the
provision for adjustment hereinafter set forth) equal to 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 the Common Stock (by reclassification or
otherwise), declared on the Common Stock since the immediately
preceding Dividend Payment Date or, with respect to the first
Dividend Payment Date, since the first issuance of any share or
fraction of a share of Series A Preferred Stock. In the event
the Corporation shall at any time declare or pay any dividend on
the Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding
shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater
or lesser number of shares of Common Stock, then in each such
case the amount to which holders of shares of Series A 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 Preferred Stock as provided in
paragraph (A) of this Paragraph 2 immediately after it declares a
dividend or distribution on the Common Stock (other than a
dividend payable in shares of Common Stock).
(C) The Board of Directors may fix a record date for
the determination of holders of shares of Series A Preferred
Stock entitled to receive payment of a dividend or distribution
declared thereon, which record date shall be not more than 60
days prior to the date fixed for the payment thereof.
Paragraph 3. VOTING RIGHTS. The holders of shares of
Series A Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment
hereinafter set forth, each share of Series A Preferred Stock
shall entitle the holder thereof to 100 votes on all matters
submitted to a vote of the shareholders of the Corporation. In
the event the Corporation shall at any time declare or pay any
dividend on the Common Stock payable in shares of Common Stock,
or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock,
then in each such case the number of votes per share to which
holders of shares of Series A Preferred Stock were entitled
immediately prior to such an event shall be adjusted by
multiplying such number by a fraction, the numerator of which is
the number of shares of Common Stock outstanding immediately
after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to
such event.
(B) Except as otherwise provided herein, in any other
Certificate of Amendment to the Certificate of Incorporation or
Certificate of Designation creating a series of Preferred Stock
or any similar stock, or by law, the holders of shares of Series
A Preferred Stock and the holders of shares of Common Stock and
any other capital stock of the Corporation having general voting
rights shall vote together as one class on all matters submitted
to a vote of shareholders of the Corporation.
(C) Except as set forth herein, or as otherwise
provided by law, holders of Series A 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.
Paragraph 4. CERTAIN RESTRICTIONS.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Preferred Stock as provided
in Paragraph 2 are in arrears, thereafter and until all accrued
and unpaid dividends and distributions, whether or not declared,
on shares of Series A Preferred Stock outstanding shall have been
paid in full, the Corporation shall not:
(i) declare or pay dividends, or make any other
distributions, on any shares of stock ranking junior (either
as to dividends or upon liquidation, dissolution or winding
up) to the Series A Preferred Stock;
(ii) declare or pay dividends, or make any other
distributions, on any shares of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or
winding up) with the Series A Preferred Stock, except
dividends paid ratably on the Series A 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 ranging junior (either as
to dividends or upon liquidation, dissolution or winding up)
to the Series A Preferred Stock, provided that the
Corporation may at any time redeem, purchase or otherwise
acquire shares of any such junior 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 Preferred Stock; or (iv) redeem
or purchase or otherwise acquire for consideration any
shares of Series A Preferred Stock, or any shares of stock
ranking on a parity with the Series A 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.
(B) 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 Paragraph 4, purchase or
otherwise acquire such shares at such time and in such manner.
Paragraph 5. REACQUIRED SHARES.
Any shares of Series A Preferred Stock purchased or
otherwise acquired by the Corporation in any manner whatsoever
shall be retired and canceled 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 subject to
the conditions and restrictions on issuance set forth herein, in
the Articles of Incorporation, or in any other Certificate of
Amendment to the Certificate of Incorporation or Certificate of
Designation creating a series of Preferred Stock or any similar
stock or as otherwise required by law.
Paragraph 6. LIQUIDATION, DISSOLUTION OR WINDING UP.
Upon any liquidation, dissolution or winding up of the
Corporation, no distribution shall be made (1) to the holders of
shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred
Stock unless, prior thereto, the holders of shares of Series A
Preferred Stock shall have received $100.00 per share, plus an
amount equal to accrued and unpaid dividends and distributions
thereon, whether or not declared, to the date of such payment,
provided that the holders of shares of Series A Preferred Stock
shall be entitled to receive an aggregate amount per share,
subject to the provision for adjustment hereinafter set forth,
equal to 100 times the aggregate amount to be distributed per
share to holders of shares of Common Stock, or (2) to the holders
of shares of stock ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the Series A
Preferred Stock, except distributions made ratably on the Series
A Preferred Stock and all such parity stock in proportion to the
total amounts to which the holders of all such shares are
entitled upon such liquidation, dissolution or winding up. In
the event the Corporation shall at any time declare or pay any
dividend on the Common Stock payable in shares of Common Stock,
or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock,
then in each such case the aggregate amount to which holders of
shares of Series A Preferred Stock were entitled immediately
prior to such event under the proviso in clause (1) of the
preceding sentence shall be adjusted by multiplying such amount
by a fraction the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
Paragraph 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
each share of Series A Preferred Stock shall at the same time be
similarly exchanged or changed into an amount per share, subject
to the provision for adjustment hereinafter set forth, equal to
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 declare
or pay any dividend on the Common Stock payable in shares of
Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in
shares of Common Stock into a greater or lesser number of shares
of Common Stock), then in each such case the amount set forth in
the preceding sentence with respect to the exchange or change of
shares of Series A 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.
Paragraph 8. NO REDEMPTION.
The shares of Series A Preferred Stock shall not be
redeemable.
Paragraph 9. RANK.
The Series A Preferred Stock shall rank, with respect to the
payment of dividends and the distribution of assets, junior to
all series of any other class of the Corporation's Preferred
Stock.
Paragraph 10. AMENDMENT.
The Certificate of Incorporation shall not be amended in any
manner which would materially alter or change the powers,
preferences or special rights of the Series A Preferred Stock so
as to affect them adversely without, in addition to any other
vote of shareholders required by law, the affirmative vote of the
holders of at least 60% of the outstanding shares of Series A
Preferred Stock, voting together as a single class.
Paragraph 11. FRACTIONAL SHARES.
The Series A 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 the Series A preferred Stock."
Executed this 3rd day of January, 1996. The undersigned
affirm under penalties of perjury that the foregoing instrument
is the act and deed of the Corporation and that the facts stated
therein are true.
Sierra Tahoe Bancorp
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Chief
Executive Officer
By: /s/ A. ▇▇▇▇▇▇ ▇▇▇▇▇
A. ▇▇▇▇▇▇ ▇▇▇▇▇, Secretary
STATE OF CALIFORNIA )
) ss
COUNTY OF NEVADA )
On this 3rd day of January, 1996, before me, ▇▇▇▇▇▇ ▇▇▇▇,
a Notary Public in and for said County and State, personally
appeared ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ (X) personally known to me OR ( )
proved to me on the basis of satisfactory evidence to be the
person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his authorized
capacity, and that by his signature on the instrument the person,
or the entity on behalf of which the person acted, executed the
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and official
seal the day and year first above written.
(Notary Seal) /s/ ▇▇▇▇▇▇ ▇▇▇▇
STATE OF CALIFORNIA )
) ss
COUNTY OF NEVADA )
On this 3rd day of January, 1996, before me, ▇▇▇▇▇▇ ▇▇▇▇,
a Notary Public in and for said County and State, personally appeared
A. ▇▇▇▇▇▇ ▇▇▇▇▇(X) personally known to me OR ( ) proved to me on
the basis of satisfactory evidence to be the person whose name is
subscribed to the within instrument and acknowledged to me that
he executed the same in his authorized capacity, and that by his
signature on the instrument the person, or the entity on behalf
of which the person acted, executed the instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and official
seal the day and year first above written.
(Notary Seal) /s/ ▇▇▇▇▇▇ ▇▇▇▇
EXHIBIT B
FORM OF RIGHT CERTIFICATE
Certificate No. R- Rights
NOT EXERCISABLE AFTER JANUARY 16, 2006 OR EARLIER IF
REDEMPTION OR EXCHANGE OCCURS. THE RIGHTS ARE SUBJECT TO
REDEMPTION AT $.001 PER RIGHT AND TO EXCHANGE ON THE TERMS
SET FORTH IN THE RIGHTS AGREEMENT.
RIGHT CERTIFICATE
Sierra Tahoe Bancorp
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 16, 1996 ("Rights Agreement"), between Sierra
Tahoe Bancorp, a California corporation ("Company"), and American
Stock Transfer & Trust Co. ("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., San
Francisco time, on January 16, 2006 at the principal office of
the Rights Agent, or at the office of its successor as Rights
Agent, one one-hundredth of a fully paid non-assessable share of
Series A Junior Participating Preferred Stock ("Preferred
Shares"), of the Company, at a purchase price of $40.00 per one
one-hundredth of a Preferred Share ("Purchase Price"), upon
presentation and surrender of this Right Certificate with the
Form of Election to Purchase duly executed. The number of Rights
evidenced by this Right Certificate (and the number of one
one-hundredths of a Preferred Share which may be purchased upon
exercise hereof) set forth above, and the Purchase Price set
forth above, are the number and Purchase Price as of January 16,
1996, based on the Preferred Shares as constituted at such date.
As provided in the Rights Agreement, the Purchase Price and the
number of one one-hundredths of a Preferred Share which may be
purchased upon the exercise of the Rights evidenced by this Right
Certificate are subject to modification and adjustment upon the
happening of certain events.
This Right Certificate is subject to all of the terms,
provisions and conditions of the Rights Agreement, which terms,
provisions and conditions are hereby incorporated herein by
reference and made a part hereof and to which Rights Agreement
reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities
hereunder of the Rights Agent, the Company and the holders of the
Right Certificates. Copies of the Rights Agreement are on file
at the principal executive offices of the Company and the
above-mentioned offices of the Rights Agent.
This Right Certificate, with or without other Right
Certificates, upon surrender at the principal office of the
Rights Agent, may be exchanged for another Right Certificate or
Right Certificates of like tenor and date evidencing Rights
entitling the holder to purchase a like aggregate number of
Preferred Shares as the Rights evidenced by the Right Certificate
or Right Certificates surrendered shall have entitled such holder
to purchase. If this Right Certificate shall be exercised in
part, the holder shall be entitled to receive upon surrender
hereof another Right Certificate or Right Certificates for the
number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the
Rights evidenced by this Certificate (i) may be redeemed by the
Company at a redemption price of $.001 per Right or (ii) may be
exchanged in whole or in part for Preferred Shares or shares of
the Company's Common Stock, no par value.
No fractional Preferred Shares will be issued upon the
exercise of any Right or Rights evidenced hereby (other than
fractions which are integral multiples of one one-hundredth of a
Preferred Share, which may, at the election of the Company, be
evidenced by depositary receipts), but in lieu thereof a cash
payment will be made, as provided in the Rights Agreement.
No holder of this Right Certificate shall be entitled to
vote or receive dividends or be deemed for any purpose the holder
of the Preferred Shares or of any other securities of the Company
which may at any time be issuable on the exercise hereof, nor
shall anything contained in the Rights Agreement or herein be
construed to confer upon the holder hereof, as such, any of the
rights of a shareholder of the Company or any right to vote for
the election of directors or upon any matter submitted to
shareholders at any meeting thereof, or to give or withhold
consent to any corporate action, or to receive notice of meetings
or other actions affecting shareholders (except as provided in
the Rights Agreement), or to receive dividends or subscription
rights, or otherwise, until the Right or Rights evidenced by this
Right Certificate shall have been exercised as provided in the
Rights Agreement.
This Right Certificate shall not be valid or obligatory for
any purpose until it shall have been countersigned by the Rights
Agent.
WITNESS the facsimile signature of the proper officers of
the Company and its corporate seal. Dated as of
.
ATTEST: Sierra Tahoe Bancorp
By:_________________________
Countersigned:
AMERICAN STOCK TRANSFER AND
TRUST CO.
By:________________________
Authorized Signature
Form of Reverse Side of Right Certificate
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Right Certificate.)
FOR VALUE RECEIVED _______________________________ hereby sells,
assigns and transfers unto
______________________________________________________________________________
(Please print name and address of transferee)
this Right Certificate, together with all right, title and
interest therein, and does hereby irrevocably constitute and
appoint _________________________ Attorney, to transfer the
within Right Certificate on the books of the within-named
Company, with full power of substitution.
Dated: _______, ____.
___________________________
Signature
Signature Guaranteed:
______________________________
Signatures must be guaranteed by an eligible institution (as
defined in Rule 17Ad-15 under the Securities Exchange Act of
1934) which may include a commercial bank, trust company, savings
association, credit union or a member firm of the American Stock
Exchange, New York Stock Exchange, Pacific Stock Exchange or
Midwest Stock Exchange.
The undersigned hereby certifies that the Rights evidenced by
this Right Certificate are not beneficially owned by an Acquiring
Person or an Affiliate or Associate thereof (as defined in the
Rights Agreement).
--------------------------
Signature
Form of Reverse Side of Right Certificate -- continued
FORM OF ELECTION TO PURCHASE
(To be executed by the registered holder if such
holder desires to transfer the Right Certificate.)
To SIERRA TAHOE BANCORP:
The undersigned hereby irrevocably elects to exercise
Rights represented by this Right Certificate to purchase the
Preferred Shares issuable upon the exercise of such Rights and
requests that certificates for such Preferred Shares be issued in
the name of:
Please insert social security or other identifying number
_________________________________________________________________
(Please print name and address)
_________________________________________________________________
If such number of Rights shall not be all the Rights evidenced by
this Right Certificate, a new Right Certificate for the balance
remaining of such Rights shall be registered in the name of and
delivered to:
Please insert social security or other identifying number
_________________________________________________________________
(Please print name and address)
_________________________________________________________________
Dated: _________________
___________________________
Signature
Signature Guaranteed:
______________________________
Signatures must be guaranteed by an eligible institution (as
defined in Rule 17Ad-15 under the Securities Exchange Act of
1934) which may include a commercial bank, trust company, savings
association, credit union or a member firm of the American Stock
Exchange, New York Stock Exchange, Pacific Stock Exchange or
Midwest Stock Exchange.
Form of Reverse Side of Right Certificate -- continued
The undersigned hereby certifies that the Rights evidenced by
this Right Certificate are not beneficially owned by an Acquiring
Person or an Affiliate or Associate thereof (as defined in the
Rights Agreement).
--------------------------
Signature
NOTICE
The signature in the foregoing Forms of Assignment and Election
must conform to the name as written upon the face of this Right
Certificate in every particular, without alteration or
enlargement or any change whatsoever.
In the event the certification set forth above in the Form of
Assignment 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 this Right
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 TO PURCHASE PREFERRED SHARES
On December 21, 1995, the Board of Directors of Sierra Tahoe
Bancorp ("Company") declared a dividend of one preferred share
purchase right ("Right") for each outstanding share of common
stock, no par value ("Common Stock"), of the Company. The
dividend is payable on January 16, 1996 ("Record Date") to the
stockholders of record on that date. Each Right entitles the
registered holder to purchase from the Company one one-hundredth
of a share of Series A Junior Participating Preferred Stock, no
par value ("Preferred Stock"), of the Company at a price of $40
per one one-hundredth of a share of Preferred Stock ("Purchase
Price"), subject to adjustment. The description and terms of the
Rights are set forth in a Rights Agreement dated as of January
16, 1996 ("Rights Agreement") between the Company and American
Stock Transfer & Trust Co., as Rights agent ("Rights Agent").
Initially, the Rights will be attached to all certificates
representing Common Stock then outstanding, regardless of whether
any such certificates have a copy of this Summary of Rights
attached thereto, and no separate Right Certificates will be
distributed. The Rights will separate from the Common Stock and
a Distribution Date will occur upon the earlier of (i) 10 days
following a public announcement that, without the prior consent
of the Board of Directors, a person or group of affiliated or
associated persons ("Acquiring Person") have acquired beneficial
ownership of 10% or more of the outstanding Common Stock ("Stock
Acquisition Date"), or (ii) 10 business days (or such later date
as may be determined by action of the Board of Directors prior to
such time as any Person becomes an Acquiring Person) following
the commencement of, or announcement of an intention to make, a
tender offer or exchange offer the consummation of which would
result in the beneficial ownership by a person or group of 10% or
more of such outstanding Common Stock.
The Rights Agreement provides that, until the Distribution
Date, the Rights will be transferred with and only with the
Common Stock. Until the Distribution Date (or earlier redemption
or expiration of the Rights), new Common Stock certificates
issued after the Record Date, upon transfer or new issuance of
Common Stock, will contain a notation incorporating the Rights
Agreement by reference. Until the Distribution Date (or earlier
redemption or expiration of the Rights), the surrender for
transfer of any certificates for Common Stock, outstanding as of
the Record Date, even without such notation or a copy of this
Summary of Rights being attached thereto, will also constitute
the transfer of the Rights associated with the Common Stock
represented by such certificate. As soon as practicable
following the Distribution Date, separate certificates evidencing
the Rights ("Right Certificates") will be mailed to holders of
record of the Common Stock as of the close of business on the
Distribution Date and such separate Right Certificates alone will
evidence the Rights.
The Rights are not exercisable until the Distribution Date.
The Rights will expire on January 16, 2006 ("Final Expiration
Date"), unless the Rights are earlier redeemed or exchanged by
the Company, in each case, as described below.
The Purchase Price payable, and the number 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) upon the grant to holders of the Preferred Stock of
certain rights or warrants to subscribe for or purchase Preferred
Stock at a price, or securities convertible into Preferred Stock
with a conversion price, less than the then 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 periodic cash dividends paid out of earnings
or retained earnings or dividends payable in Preferred Stock) or
of subscription rights or warrants (other than those referred to
above).
The number of outstanding Rights and the number of one
one-hundredths of a share of Preferred Stock issuable upon
exercise of each Right are also subject to adjustment in the
event of a stock split of the Common Stock or a stock dividend on
the Common Stock payable in Common Stock or a subdivision,
consolidation or combination of the Common Stock occurring, in
any such case, prior to the Distribution Date.
Because of the nature of the Preferred Stock's dividend,
liquidation and voting rights, the value of the one one-hundredth
interest in a share of Preferred Stock purchasable upon exercise
of each Right should approximate the value of one share of Common
Stock.
Preferred Stock purchasable upon exercise of the Rights will
not be redeemable. Each share of Preferred Stock will be
entitled to a minimum preferential dividend payment of 100 times
the dividend declared per share of Common Stock. In the event of
liquidation, the holders of the Preferred Stock will be entitled
to a minimum preferential liquidation payment of $100.00 per
share but will be entitled to an aggregate payment of 100 times
the payment made per share of Common Stock. Each share of
Preferred Stock will have 100 votes, voting together with the
Common Stock. Finally, in the event of any merger, consolidation
or other transaction in which Common Stock are exchanged, each
share of Preferred Stock will be entitled to receive 100 times
the amount received per share of Common Stock. These rights are
protected by customary antidilution provisions.
In the event that any person becomes the beneficial owner of
10% or more of the Common Stock of the Company, ten (10) days
thereafter ("Flip-In Event") each holder of a Right will
thereafter have the right to receive, upon exercise thereof at
the then current Purchase Price of the Right, Common Stock (or,
in certain circumstances, a combination of cash, other property,
Common Stock or other securities) which has a value of two times
the Purchase Price of the Right (such right being called the
"Flip-In Right"). In the event that the Company is acquired in a
merger or other business combination transaction where the
Company is not the surviving corporation or in the event that 50%
or more of its assets or earning power is sold, proper provision
shall be made so that each holder of a Right will thereafter have
the right to receive, upon the exercise thereof at the then
current Purchase Price of the Right, common stock of the
acquiring entity which has a value of two times the Purchase
Price of the Right. Upon the occurrence of the Flip-In Event,
any Rights that are or were at any time owned by an Acquiring
Person shall become null and void insofar as they relate to the
Flip-In Right.
At any time after the acquisition by a person or group of
affiliated or associated persons of beneficial ownership of 50%
or more of the outstanding Common Stock and prior to the
acquisition by such person or group of 10% or more of the
outstanding Common Stock, the Board of Directors of the Company
may exchange the Rights (other than Rights owned by such person
or group which have become void), in whole or in part, at an
exchange ratio of one share of Common Stock, or one one-hundredth
of a share of Preferred Stock (or of a share of a class or series
of the Company's preferred stock having equivalent rights,
preferences and privileges), per Right (subject to adjustment).
With certain exceptions, no adjustment in the Purchase Price
will be required until cumulative adjustments require an
adjustment of at least 1% in such Purchase Price. No fractional
shares of Preferred Stock will be issued (other than fractions
which are integral multiples of one one-hundredth of a share of
Preferred Stock, which may, at the election of the Company, be
evidenced by depositary receipts) and in lieu thereof, an
adjustment in cash will be made based on the market price of the
Preferred Stock on the last trading day prior to the date of
exercise.
At any time prior to the earlier to occur of (i) the tenth
day after the Stock Acquisition Date (or as extended by the Board
of Directors not to exceed 30 days), or (ii) the expiration of
the Rights, the Company may redeem the Rights in whole, but not
in part, at a price of $.001 per Right ("Redemption Price"). The
redemption shall be effective at such time, on such basis and
with such conditions as the Board of Directors in its sole
discretion may establish. Additionally, the Board of Directors
may, following the Stock Acquisition Date, redeem the then
outstanding Rights in whole, but not in part, at the Redemption
Price providing that either (a) the Acquiring Person reduces his
beneficial ownership to less than 10% of the voting power of the
Company in a manner which is satisfactory to the Directors and
there are not other Acquiring Persons, or (b) such redemption is
incidental to a merger or other business combination transaction
or series of transactions involving the Company but not involving
an Acquiring Person or any person who was an Acquiring Person.
The redemption of Rights described in the preceding sentence
shall be effective only after ten (10) business days prior
notice. Upon the effective date of the redemption of the Rights,
the right to exercise the Rights will terminate and the only
right of the holders of Rights will be to receive the Redemption
Price.
Until a Right is exercised, the holder of a Right will not,
by reason of being such a holder, have rights as a stockholder of
the Company, including, without limitation, the right to vote or
to receive dividends.
The terms of the Rights may be amended by the Board of
Directors of the Company in any manner without the consent of the
holders of the Rights, including an amendment to lower certain
thresholds described above to not less than the greater of (i)
any percentage greater than the largest percentage of the
outstanding Common Stock then known to the Company to be
beneficially owned by any person or group of affiliated or
associated persons and (ii) 10%, except that from and after such
time as any person becomes an Acquiring Person no such amendment
may adversely affect the interests of the holders of the Rights.
As of January 3, 1996, there were 2,592,419 shares of Common
Stock issued and outstanding (including treasury shares), 468,052
shares reserved for issuance under employee stock option plans
and 1,000,000 shares reserved for issuance upon conversion of the
Company's 8 1/2% Convertible Subordinated Debentures due February
1, 2004 ("Convertible Debentures"). Each outstanding share of
Common Stock on January 16, 1996 will receive one Right. As long
as the Rights are attached to the Common Stock, the Company will
issue one Right for each share of Common Stock issued between the
Record Date and the Distribution Date (including shares issued
upon conversion the Convertible Debentures) so that all such
shares will have attached Rights. As provided above, however,
upon and following the occurrence of the Flip-In Event, any such
Rights that are or were at any time owned by an Acquiring Person
shall become null and void insofar as they relate to the Flip-In
Right. There will be 200,000 shares of Preferred Stock reserved
for issuance upon exercise of the Rights.
The Rights Agreement is designed to protect shareholders in
the event of an unsolicited attempt to acquire the Company for an
inadequate price and to protect against abusive practices that do
not treat all shareholders equally such as, among others, partial
and two-tier tender offers, coercive offers, and creeping stock
accumulation programs. Such practices can pressure stock holders
into tendering their investments prior to realizing the full
value or total potential of such investments. The Rights
Agreement is intended to make the cost of such abusive practices
prohibitive and create an incentive for a potential acquiror to
negotiate in good faith with the Board. The Rights Agreement is
not intended to, and will not, prevent all unsolicited offers to
acquire the Company. If an unsolicited offer is made, and the
Board determines that it is fair and in the best interest of the
Company and its shareholders, then, pursuant to the terms of the
Rights Agreement, the Board has the authority to redeem the
Rights and permit the offer to proceed. Essentially, the Rights
Agreement will provide the Board with sufficient opportunity to
evaluate the fairness of any unsolicited offer and the
credibility of the bidder, and will therefore enable the Board to
represent the interests of all shareholders more effectively. Of
course, in deciding whether to redeem the Rights in connection
with any unsolicited offer, the Board will be bound by its
fiduciary obligations to act in the best interests of the Company
and its shareholders.
A copy of the Rights Agreement is filed with the Securities
and Exchange Commission as an Exhibit to this Form 8-K.
A copy of the Rights Agreement is available free of charge from the
Company. This summary description of the Rights does not purport to
be complete and is qualified in its entirety by reference to the Rights
Agreement.