Exhibit 4.1
RIGHTS AGREEMENT
DATED AS OF NOVEMBER 6, 2002
BETWEEN
PRACTICEWORKS, INC.
AND
STOCKTRANS, INC.
AS RIGHTS AGENT
TABLE OF CONTENTS
PAGE
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Section 1. Definitions........................................................................1
Section 2. Appointment of Rights Agent........................................................5
Section 3. Issuance of Rights Certificates....................................................5
Section 4. Form of Rights Certificate.........................................................7
Section 5. Countersignature and Registration..................................................8
Section 6. Transfer, Split-up, Combination and Exchange of Rights Certificates;
Mutilated, Destroyed, Lost or Stolen Rights Certificates...........................8
Section 7. Exercise of Rights; Purchase Price; Expiration Date of Rights......................9
Section 8. Cancellation and Destruction of Right Certificates................................10
Section 9. Reservation and Availability of Capital Stock.....................................11
Section 10. Preferred Stock Record Date.......................................................12
Section 11. Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights.......12
Section 12. Certificate of Adjusted Purchase Price or Number of Shares........................21
Section 13. Consolidation, Merger or Sale or Transfer of Assets or Earning Power..............21
Section 14. Fractional Rights and Fractional Shares...........................................24
Section 15. Rights of Action..................................................................25
Section 16. Agreement of Right Holders........................................................26
Section 17. Right Certificate Holder Not Deemed a Stockholder.................................26
Section 18. Concerning the Rights Agent.......................................................27
Section 19. Merger or Consolidation or Change of Name of Rights Agent.........................27
Section 20. Duties of Rights Agent............................................................28
Section 21. Change of Rights Agent............................................................30
Section 22. Issuance of New Right Certificates................................................31
Section 23. Redemption........................................................................32
Section 24. Exchange..........................................................................32
Section 25. Notice of Proposed Actions........................................................33
Section 26. Notices...........................................................................34
Section 27. Supplements and Amendments........................................................35
Section 28. Successors........................................................................35
Section 29. Determinations and Actions by the Board of Directors..............................35
Section 30. Benefits of this Agreement........................................................36
Section 31. Severability......................................................................36
Section 32. Governing Law.....................................................................36
Section 33. Counterparts......................................................................36
Section 34. Descriptive Headings..............................................................37
Exhibit A - Form of Certificate of Designation of Preferred Stock
Exhibit B - Form of Rights Certificate
Exhibit C - Form of Summary of Rights to Purchase Preferred Stock
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RIGHTS AGREEMENT
THIS AGREEMENT is made and entered into as of November 6, 2002 (the
"EFFECTIVE DATE"), by and between PRACTICEWORKS, INC., a Delaware corporation
(the "COMPANY"), and STOCKTRANS, INC., a Pennsylvania corporation, as Rights
Agent (the "RIGHTS Agent").
W I T N E S S E T H:
WHEREAS, the Board of Directors of the Company has approved the
execution of this Agreement and has authorized and declared a dividend of one
Right (as defined below) for each share of Common Stock (as defined below)
outstanding at the close of business on November 18, 2002 (the "RECORD DATE"),
each Right representing the right to purchase one one-hundredth of a share of
Preferred Stock (as defined below) upon the terms and subject to the conditions
contained herein (individually, a "RIGHT," and collectively, the "RIGHTS"), and
further authorized and directed the issuance of one Right with respect to each
share of Common Stock issued or delivered by the Company (whether originally
issued or delivered from the Company's treasury) after the Record Date but prior
to the earlier of the Distribution Date (as defined below) and the Expiration
Date (as defined below) or as provided in SECTION 22 of this Agreement;
NOW, THEREFORE, for and in consideration of the premises and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1. DEFINITIONS. The following terms, as used herein, have the
following meanings:
(a) "ACQUIRING PERSON" means any Person who or which, together with
all Affiliates and Associates of such Person, shall be the Beneficial Owner of
15% or more of the shares of Common Stock then outstanding; PROVIDED, HOWEVER,
that, an "ACQUIRING PERSON" shall not include the following Persons: (i) any
Excluded Person, (ii) any Person who is the Beneficial Owner OF 15% or more of
the shares of Common Stock outstanding as of the Effective Date, or (iii) any
Person, who alone or together with its Affiliates or Associates becomes the
Beneficial Owner of 15% or more of the shares of Common Stock then outstanding
as a result of an Approved Acquisition (an "EXEMPTED PERSON"); PROVIDED,
FURTHER, that in the event that a Person is not an Acquiring Person by reason of
clause (ii) above or does not become an Acquiring Person by reason of clause
(iii) above, such Person nonetheless shall become an Acquiring Person if such
Person, after the Effective Date or the Approved Acquisition, respectively,
becomes the Beneficial Owner of an additional 2% or more of the Common Stock
then outstanding, unless the acquisition of such Common Stock is an Approved
Acquisition; PROVIDED, FURTHER, that any Person who is an Exempted Person shall
cease to be an Exempted Person as of the date that such Person ceases to
beneficially own 15% or more of the then outstanding shares of Common Stock.
Notwithstanding the foregoing, if the Board of Directors of the Company
determines in good faith that a person who would otherwise be an "ACQUIRING
PERSON" as defined pursuant to the foregoing provisions of this SECTION 1(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 SECTION 1(A), then such
Person shall not be deemed an Acquiring Person for any purposes of this
Agreement. In determining what is "as promptly as practicable" the Board may
take into account such factors as the impact of the divestment on the market
price of the Common Stock, the average volume of trading in its shares, and
other factors that may affect its stockholders or the price of its Common Stock.
(b) "AFFILIATE" and "ASSOCIATE" have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations under
the Exchange Act as in effect on the date hereof.
(c) "APPROVED ACQUISITION" means any acquisition of Common Stock
that (i) causes a Person to become the Beneficial Owner of (A) 15% or more of
the shares of Common Stock then outstanding, or (B) if already a Beneficial
Owner of 15% or more of the shares of Common Stock then outstanding, an
additional 2% or more of the shares of Common Stock then outstanding, and (ii)
is approved in advance by a majority of the Directors.
(d) 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 its Affiliates or Associates
beneficially owns (as determined pursuant to Rule 13d-3 under the
Exchange Act as in effect on the date hereof), directly or indirectly;
(ii) which such Person or any of its Affiliates or Associates,
directly or indirectly, has
(A) the right to acquire (whether such right is
exercisable immediately or only upon the occurrence of certain
events or the passage of time or both) pursuant to any
agreement, arrangement or understanding (whether or not in
writing) or upon the exercise of conversion rights, exchange
rights, rights (other than pursuant to the Rights), warrants,
options or otherwise; PROVIDED, HOWEVER, that a Person shall
not be deemed the "BENEFICIAL OWNER" of, or to "BENEFICIALLY
OWN," any securities tendered pursuant to a tender or exchange
offer made by or on behalf of such Person or any of its
Affiliates or Associates until such tendered securities are
accepted for purchase or exchange; or
(B) the right to vote or dispose of (whether such
right is exercisable immediately or only upon the occurrence
of certain events or the passage of time or both) pursuant to
any agreement, arrangement or understanding (whether or not in
writing) or otherwise; PROVIDED, HOWEVER, that a Person shall
not be deemed the "BENEFICIAL OWNER" of, or to "BENEFICIALLY
OWN," any security under this clause (B) as a result of an
agreement, arrangement or understanding to vote such security
if such agreement, arrangement or understanding (1) arises
solely from a
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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 by such Person on Schedule 13D under the Exchange
Act (or any comparable or successor report); or
(iii) which are beneficially owned, directly or indirectly, by
any other Person (or any Affiliate or Associate thereof) with which
such Person (or any of its Affiliates or Associates) has any agreement,
arrangement or understanding (whether or not in writing) for the
purpose of acquiring, holding, voting (except pursuant to a revocable
proxy as described in SUBSECTION (II)(B) above) or disposing of any
such securities; PROVIDED, HOWEVER, that nothing in this SECTION 1(D)
shall cause any Person engaged in business as an underwriter of
securities who acquires any securities of the Company through such
Person's participation in good faith in a firm commitment underwriting
to be deemed the "BENEFICIAL OWNER" of, or to "BENEFICIALLY OWN," such
securities until the expiration of 40 days after the date of such
acquisition.
(e) "BUSINESS DAY" means any day other than a Saturday, Sunday or
a day on which banking institutions in the State of Georgia are authorized or
obligated by law or executive order to close.
(f) "CLOSE OF BUSINESS" on any given date means 5:00 P.M.,
Atlanta, Georgia time, on such date; PROVIDED, HOWEVER, that if such date is not
a Business Day, then it shall mean 5:00 P.M., Atlanta, Georgia time, on the next
succeeding Business Day.
(g) "COMMON STOCK" means the Common Stock, par value $0.01 per
share, of the Company, except that, when used with respect to any Person other
than the Company, "COMMON STOCK" means the capital stock (or other equity
interests) of such Person with the greatest voting power, or the equity
securities or other equity interests having the power to control or direct the
management of such Person.
(h) "DIRECTOR" means any member of the Board of Directors of
the Company, while such Person is a member of the Board.
(i) "DISTRIBUTION DATE" means the earlier of (i) the Close of
Business on the tenth day (or such later day as may be designated by action of a
majority of the Directors) after the Share Acquisition Date, and (ii) the Close
of Business on the tenth Business Day (or such later day as may be designated by
action of a majority of the Directors) after the date of the commencement by any
Person (other than an Excluded Person) of, or of the first public announcement
of the intention by any Person (other than an Excluded Person) to commence, a
tender or exchange offer if, upon consummation thereof, such Person would become
an Acquiring Person (including, in the case of both (i) and (ii), any such date
which is after the Effective Date and prior to the issuance of the Rights);
PROVIDED, HOWEVER, that if a tender or
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exchange offer is terminated prior to the occurrence of a Distribution Date,
then no Distribution Date shall occur as a result of such tender or exchange
offer.
(j) "EMPLOYEE BENEFIT PLAN" means any employee benefit plan of the
Company or any of its Subsidiaries or any Person organized, appointed or
established by the Company or any of its Subsidiaries for or pursuant to the
terms of any such plan.
(k) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
(l) "EXCLUDED PERSON" means the Company, any of its Subsidiaries
or any Employee Benefit Plan.
(m) "EXPIRATION DATE" means the earlier of (i) the Final
Expiration Date, and (ii) the time at which all Rights are redeemed as provided
in SECTION 23 or exchanged as provided in SECTION 24.
(n) "FINAL EXPIRATION DATE" means the Close of Business on the
date that is the tenth anniversary of the Effective Date.
(o) "FLIP-IN EVENT" means any event described in SECTION
11(A)(II)(A), (B) OR (C).
(p) "FLIP-OVER EVENT" means any event described in SECTION
13(A)(W),(X), (Y), OR (Z).
(q) "PERSON" means an individual, corporation, partnership,
limited liability company, association, trust or any other entity or
organization.
(r) "PREFERRED STOCK" means the Series D Participating Cumulative
Preferred Stock, par value $0.01 per share, of the Company having the relative
rights, preferences and limitations set forth in the form of certificate of
designation attached hereto as EXHIBIT A.
(s) "PURCHASE PRICE" means the price (subject to adjustment as
provided herein) at which a holder of a Right may purchase one one-hundredth of
a share of Preferred Stock (subject to adjustment as provided herein) upon
exercise of a Right, which price shall initially be $40.00, payable in
accordance with SECTION 7.
(t) "QUALIFYING TENDER OFFER" means a tender or exchange offer for
all outstanding shares of Common Stock approved by a majority of Directors in
office at the time of such vote, after taking into account the potential
long-term value of the Company and all other factors that they consider
relevant.
(u) "SECURITIES ACT" means the Securities Act of 1933, as amended.
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(v) "SHARE ACQUISITION DATE" means the first date of public
announcement or public disclosure (including the filing of a report on Schedule
13D under the Exchange Act (or any comparable or successor report)) by the
Company or an Acquiring Person indicating or demonstrating that an Acquiring
Person has become such; PROVIDED, HOWEVER, that if such Person is determined not
to have become an Acquiring Person pursuant to the penultimate sentence of
SECTION 1(A), then no Share Acquisition Date shall be deemed to have occurred.
(w) "SUBSIDIARY" means, with respect to any Person, any other
Person of which securities or other ownership interests having ordinary voting
power, in the absence of contingencies, to elect a majority of the board of
directors or other Persons performing similar functions are at the time directly
or indirectly owned or controlled by such first Person.
(x) "TRADING DAY" means a day on which the principal national
securities exchange or inter-dealer quotation system on which the shares of
Common Stock are listed, admitted to trading or quoted is open for the
transaction of business or, if the shares of Common Stock are not listed,
admitted to trading or quoted on any national securities exchange or
inter-dealer quotation system, then a Business Day.
(y) "TRIGGERING EVENT" means any Flip-in Event or any Flip-over
Event.
SECTION 2. APPOINTMENT OF RIGHTS AGENT. The Company hereby appoints the
Rights Agent to act as agent for the Company and the holders of the Rights (who,
in accordance with SECTION 3, shall prior to the Distribution Date also be the
holders of the Common Stock) 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. If
the Company appoints one or more co-Rights Agents, then the respective duties of
the Rights Agent and any co-Rights Agents shall be as the Company shall
determine.
SECTION 3. ISSUANCE OF RIGHTS CERTIFICATES.
-------------------------------
(a) Prior to the Distribution Date, (i) the Rights will be
evidenced (subject to SECTION 3(B)) by the certificates for the Common Stock and
not by separate Rights Certificates (as defined below), and the registered
holders of the Common Stock shall be deemed to be the registered holders of the
associated Rights, and (ii) the Rights will be transferable only in connection
with the transfer of the underlying shares of Common Stock (including a transfer
to the Company). As soon as practicable after the Company has notified the
Rights Agent of the occurrence of a Distribution Date, the Company will prepare
and execute, the Rights Agent will countersign and the Company will send or
cause to be sent, subject to SECTION 7(D), by first-class, insured, postage
prepaid mail, to each record holder of the Common Stock as of the Close of
Business on the Distribution Date, at the address of such holder shown on the
records of the Company, a Rights Certificate, in substantially the form of
EXHIBIT B attached hereto (a "RIGHTS CERTIFICATE"), evidencing one Right
(subject to adjustment as provided herein) for each share of Common Stock so
held. If an adjustment in the number of Rights per share of Common Stock
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has been made pursuant to SECTION 11(P), then the Company shall, at the time of
distribution of the Rights Certificates to record holders of Common Stock as of
the Close of Business on the Distribution Date, make the necessary and
appropriate rounding adjustments (in accordance with SECTION 14(A)) so that
Rights Certificates representing only whole numbers of Rights are distributed to
such holders and cash is paid to such holders in lieu of any fractional Rights.
From and after the Distribution Date, the Rights will be evidenced solely by
such Right Certificates.
(b) As soon as practicable after the Record Date, the Company will
send a copy of a Summary of Rights to Purchase Preferred Stock in substantially
the form of EXHIBIT C attached hereto, by first-class, postage prepaid mail, to
each record holder of the Common Stock as of the Close of Business on the Record
Date at the address of such holder shown on the records of the Company. Until
the earlier of the Distribution Date and the Expiration Date, the Rights shall
be evidenced by such certificates evidencing the Common Stock, and the
registered holders of such Common Stock shall also be the registered holders of
the associated Rights.
(c) Rights shall be issued in respect of all shares of Common
Stock that become outstanding (on original issuance or out of treasury) after
the Record Date but prior to the earlier of the Distribution Date or the
Expiration Date. Certificates for the Common Stock that become outstanding or
shall be transferred or exchanged after the Record Date but prior to the earlier
of the Distribution Date or the Expiration Date shall also be deemed to be
certificates for Rights and shall have impressed on, printed on, written on or
otherwise affixed to them the following legend or such similar legend as the
Company may deem appropriate and as is 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 transaction reporting system on which the Common Shares
may from time to time be listed or quoted, or to conform to usage:
This certificate also evidences and entitles the holder hereof
to certain Rights as set forth in a Rights Agreement between
PracticeWorks, Inc. (the "Company") and StockTrans, Inc. dated
as of November 6, 2002 (the "Rights Agreement"), the terms of
which are hereby incorporated herein by reference and a copy
of which is on file at the principal office of the Company.
The Company will mail to the holder of this certificate a copy
of the Rights Agreement without charge promptly after receipt
of a written request therefor. Under certain circumstances, as
set forth in the Rights Agreement, such Rights may be
evidenced by separate certificates and no longer be evidenced
by this certificate, may be redeemed or exchanged or may
expire. As set forth in the Rights Agreement, Rights issued
to, or held by, any Person who is, was or becomes an Acquiring
Person or an Affiliate or Associate thereof (as such terms are
defined in the Rights Agreement), whether currently held by or
on behalf of such Person or by any subsequent holder, may be
null and void.
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(d) With respect to the certificates containing the foregoing
legend, until the earlier of the Distribution Date or the Expiration Date, the
Rights associated with the Common Stock represented by such certificates shall
be evidenced by such certificates alone and registered holders of Common Stock
shall also be the registered holders of the associated Rights, and the transfer
of any of such certificates shall also constitute the transfer of the Rights
associated with the Common Stock represented thereby. If the Company purchases
or acquires any shares of Common Stock after the Effective Date but prior to the
Distribution Date, any Rights associated with such Common Stock shall be deemed
canceled and retired so that the Company shall not be entitled to exercise any
Rights associated with the Common Stock that are no longer outstanding.
SECTION 4. FORM OF RIGHTS CERTIFICATE.
--------------------------
(a) The Rights Certificates (and the forms of assignment, election to
purchase and certificates to be printed on the reverse thereof) shall be
substantially in the form of EXHIBIT B attached hereto and may have such marks
of identification or designation and such legends, summaries or endorsements
printed thereon as the Company may deem appropriate and as are not inconsistent
with the provisions of this Agreement, or as may be required to comply with any
applicable law, rule or regulation or with any rule or regulation of any stock
exchange or inter-dealer quotation system of a registered national securities
association on which the Rights may from time to time be listed, traded or
quoted or to conform to usage. Subject to SECTIONS 11 AND 22, the Rights
Certificates, whenever distributed, shall be dated as of the Distribution Date,
shall entitle the holders thereof to purchase such number of one one-hundredths
of a share of Preferred Stock as shall be set forth therein at the price set
forth therein, but the number of such one one-hundredths and the Purchase Price
thereof shall be subject to adjustment as provided herein.
(b) Any Rights Certificate issued pursuant to SECTION 3 or SECTION
22 hereof that represent Rights which are null and void pursuant to SECTION
7(D)(I), (II) OR (III) and any Rights Certificate issued pursuant to SECTION 6
or SECTION 11 upon transfer, exchange, replacement or adjustment or any other
Rights Certificate referred to in this sentence shall (to the extent feasible)
contain the following legend or such similar legend as the Company may deem
appropriate and as is not inconsistent with the provisions of this Agreement, or
as may be required to comply with any applicable law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any stock
exchange on which the Rights may from time to time be listed, or to conform to
usage:
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). This Rights
Certificate and the Rights represented hereby may be or may
become null and void in the circumstances specified in Section
7(d) of the Rights Agreement.
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SECTION 5. COUNTERSIGNATURE AND REGISTRATION.
---------------------------------
(a) The Rights Certificates shall be executed on behalf of the Company
by its Chairman of the Board, its Chief Executive Officer and President, or any
Vice President, either manually or by facsimile signature, and shall have
affixed thereto the Company's seal or a facsimile thereof which shall be
attested by the Secretary or an Assistant Secretary of the Company, either
manually or by facsimile signature. The Rights Certificates shall be manually
countersigned by the Rights Agent and shall not be valid for any purpose unless
so countersigned. In case any officer of the Company whose manual or facsimile
signature is affixed to the Rights Certificates shall cease to be such officer
of the Company before countersignature by the Rights Agent and issuance and
delivery by the Company, such Rights Certificates may, nevertheless, be
countersigned by the Rights Agent and issued and delivered with the same force
and effect as though the individual who signed such Rights Certificates had not
ceased to be such officer of the Company. Any Rights Certificate may be signed
on behalf of the Company by any Person who, at the actual date of the execution
of such Rights Certificate, shall be a proper officer of the Company to sign
such Rights Certificate, although at the date of the execution of this 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 or offices designated as the
appropriate place for surrender of Rights Certificates upon exercise, transfer
or exchange, books for registration and transfer of the Rights Certificates.
Such books shall show with respect to each Rights Certificate the name and
address of the registered holder thereof, the number of Rights indicated on the
certificate, and the certificate number.
SECTION 6. TRANSFER, SPLIT-UP, COMBINATION AND EXCHANGE OF RIGHTS
CERTIFICATES; MUTILATED, DESTROYED, LOST OR STOLEN RIGHTS CERTIFICATES.
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(a) Subject to SECTION 4(B), 7(D), AND 14, at any time after the Close
of Business on the Distribution Date and prior to the Close of Business on the
Expiration Date, any Rights Certificate(s) may, upon the terms and subject to
the conditions set forth in this SECTION 6(A), be transferred, split-up,
combined or exchanged for another Rights Certificate(s) evidencing a like number
of Rights as the Rights Certificate(s) surrendered. Any registered holder
desiring to transfer, split-up, combined, or exchange any Rights Certificate(s)
shall make such request in writing delivered to the Rights Agent, and shall
surrender such Rights Certificate(s) (with, in the case of a transfer, the form
of assignment and certificate on the reverse side thereof duly executed) to the
Rights Agent at the principal office or offices of the Rights Agent designated
for such purpose. Neither the Rights Agent nor the Company shall be obligated to
take any action whatsoever with respect to the transfer of any such surrendered
Rights Certificate(s) until the registered holder of the Rights has complied
with the requirements of SECTION 7(E). Upon satisfaction of the foregoing
requirements, the Rights Agent shall, subject to SECTIONS 4(B), 7(D), 14 AND 24,
countersign and deliver to the Person entitled thereto a Rights Certificate(s)
as so requested. The Company may require payment of a sum sufficient to cover
any transfer tax or
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other governmental charge that may be imposed in connection with any transfer or
exchange of any Rights Certificate(s).
(b) Upon receipt by the Company and the Rights Agent of evidence
reasonably satisfactory to them of the loss, theft, destruction or mutilation of
a Rights Certificate, and, in case of loss, theft or destruction, of indemnity
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 Rights Certificate if mutilated, the Company will issue and deliver a new
Rights Certificate of like tenor to the Rights Agent for countersignature and
delivery to the registered holder in lieu of the Rights Certificate so lost,
stolen, destroyed or mutilated.
SECTION 7. EXERCISE OF RIGHTS; EXPIRATION DATE OF RIGHTS.
---------------------------------------------
(a) Subject to SECTION 7(D), the registered holder of any Rights
Certificate may exercise the Rights evidenced thereby (except as otherwise
provided herein, including, without limitation, SECTIONS 7(E), 9(C), 11(A), 13,
23, AND 24), in whole or in part, at any time after the Distribution Date and
prior to the Expiration Date upon surrender of the Rights Certificate, with the
form of election to purchase and the certificate on the reverse side thereof
duly executed (with signatures guaranteed), to the Rights Agent at the principal
office or offices of the Rights Agent designated for such purpose, together with
payment of the aggregate Purchase Price (in lawful money of the United States of
America by certified check or bank draft payable to the order of the Company)
with respect to the Rights then to be exercised and an amount equal to any
applicable transfer tax or other governmental charge.
(b) Upon satisfaction of the requirements of SECTION 7(A) and
subject to SECTION 20(K), the Rights Agent shall thereupon promptly (i)(A)
requisition from any transfer agent of the Preferred Stock (or make available,
if the Rights Agent is the transfer agent therefor) certificates for the total
number of one one-hundredths of a share of Preferred Stock to be purchased (and
the Company hereby irrevocably authorizes its transfer agent to comply with all
such requests), or (B) if the Company, in its sole discretion, shall have
elected to deposit the shares of Preferred Stock issuable upon exercise of the
Rights with a depository agent, requisition from the depository agent depository
receipts representing such number of one one-hundredths of a share of Preferred
Stock as are to be purchased (in which case certificates for the shares of
Preferred Stock represented by such receipts shall be deposited by the transfer
agent with the depository agent), and the Company will direct the depository
agent to comply with such request, (ii) when appropriate, requisition from the
Company the amount of cash, if any, to be paid in lieu of issuance of fractional
shares in accordance with SECTION 14, and (iii) after receipt of such
certificates or depository receipts and cash, if any, cause the same to be
delivered to or upon the order of the registered holder of such Rights
Certificate (with such certificates or receipts registered in such name or names
as may be designated by such holder). If the Company is obligated to deliver
Common Stock, other securities or assets pursuant to this Agreement, the Company
will make all arrangements necessary so that such other securities and assets
are available for distribution by the Rights Agent, if and when appropriate.
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(c) In case the registered holder of any Rights Certificate shall
exercise less than all the Rights evidenced thereby, a new Rights Certificate
evidencing the number of Rights remaining unexercised shall be issued by the
Rights Agent and delivered to, or upon the order of, the registered holder of
such Rights Certificate, registered in such name or names as may be designated
by such holder, subject to the provisions of SECTION 14.
(d) Notwithstanding anything in this Agreement to the contrary,
from and after the first occurrence of a Flip-in Event, any Rights beneficially
owned by (i) an Acquiring Person or an Associate or Affiliate of an Acquiring
Person, (ii) a transferee of an Acquiring Person (or of any such Associate or
Affiliate) who becomes a transferee after the Acquiring Person (or of any such
Associate or Affiliate) becomes such, or (iii) a transferee of an Acquiring
Person (or of any such Associate or Affiliate) who becomes a transferee prior to
or concurrently with the Acquiring Person (or of any such Associate or
Affiliate) becoming such and receives such Rights pursuant to either (A) a
transfer (whether or not for consideration) from the Acquiring Person (or any
such Associate or Affiliate) to holders of equity interests in such Acquiring
Person (or in any such Associate or Affiliate) or to any Person with whom the
Acquiring Person (or any such Associate or Affiliate) has any continuing
agreement, arrangement or understanding regarding the transferred Rights, or (B)
a transfer which the Board of Directors have determined is part of a plan,
arrangement or understanding which has as a primary purpose or effect the
avoidance of this SECTION 7(D), shall become null and void without any further
action, and no holder of such Rights shall have any rights whatsoever with
respect to such Rights, whether under any provision of this Agreement or
otherwise; PROVIDED, HOWEVER, that the foregoing provisions of this SECTION 7(D)
shall not apply to Rights beneficially owned by an Acquiring Person (or an
Associate or Affiliate of such Acquiring Person) or a transferee thereof if such
Person became an Acquiring Person pursuant to a Qualifying Tender Offer. The
Company shall use all reasonable efforts to insure that the provisions of
SECTION 4(B) and this SECTION 7(D) and are complied with, but shall have no
liability to any holder of Rights Certificates or other Person as a result of
its failure to make any determinations with respect to an Acquiring Person or
its Affiliates and Associates or any transferee of any of them hereunder.
(e) Notwithstanding anything in this Agreement to the contrary,
neither the Rights Agent nor the Company shall be obligated to undertake any
action with respect to a registered holder of Rights upon the occurrence of any
purported transfer pursuant to SECTION 6 or exercise pursuant to this SECTION 7
unless such registered holder (i) shall have completed and signed the
certificate contained in the form of assignment or election to purchase, as the
case may be, set forth on the reverse side of the Rights Certificate surrendered
for such transfer or exercise, as the case may be, (ii) shall not have indicated
an affirmative response to clause 1 or 2 thereof, and (iii) shall have provided
such additional evidence of the identity of the Beneficial Owner (or former
Beneficial Owner) or Affiliates or Associates thereof as the Company shall
reasonably request.
SECTION 8. CANCELLATION AND DESTRUCTION OF RIGHT CERTIFICATES. All
Rights Certificates surrendered for exercise, transfer or exchange shall, if
surrendered to the Company
10
or to any of its agents, be delivered to the Rights Agent for cancellation or in
canceled form, or, if surrendered to the Rights Agent, shall be canceled by it,
and no Rights Certificates shall be issued in lieu thereof except as expressly
permitted by this Agreement. The Company shall deliver to the Rights Agent for
cancellation and retirement, and the Rights Agent shall cancel and retire, any
other Rights Certificate purchased or acquired by the Company otherwise than
upon the exercise thereof. The Rights Agent shall deliver all canceled Rights
Certificates to the Company, or shall, at the written request of the Company,
destroy such canceled Rights Certificates, and in either such case shall deliver
a certificate of cancellation or destruction thereof, as appropriate, to the
Company.
SECTION 9. RESERVATION AND AVAILABILITY OF CAPITAL STOCK.
---------------------------------------------
(a) The Company covenants and agrees that it will use reasonable
efforts to cause to be reserved and kept available out of its authorized and
unissued shares of Preferred Stock (and, following the occurrence of Triggering
Event, out of its authorized and unissued shares of Common Stock) a number of
shares of Preferred Stock (and, following the occurrence of a Triggering Event,
out of its authorized but unissued shares of Common Stock) that will be, except
as provided in SECTION 11(A)(III), sufficient to permit the exercise in full of
all outstanding Rights as provided in this Agreement.
(b) So long as the Preferred Stock (and, following the occurrence
of Triggering Event, Common Stock and other securities) issuable and deliverable
upon the exercise of the Rights may be listed on any national securities
exchange or inter-dealer quotation system of a registered national securities
association, the Company shall use its best efforts to cause, from and after
such time as the Rights become exercisable, all securities reserved for such
issuance to be listed on any such exchange or quotation system upon official
notice of issuance upon such exercise.
(c) The Company shall use its best efforts (i) to file, as soon as
practicable following the earliest date after the occurrence of a Flip-in Event,
or as soon as is required by law following the Distribution Date, as the case
may be, a registration statement under the Securities Act with respect to the
securities issuable upon exercise of the Rights, (ii) to cause such registration
statement to become effective as soon as practicable after such filing, and
(iii) to cause such registration statement to remain effective (with a
prospectus at all times meeting the requirements of the Securities Act) until
the earlier of (A) the date as of which the Rights are no longer exercisable for
such securities, and (B) the Expiration Date. The Company will also take such
action as may be appropriate under, or to ensure compliance with, the securities
or blue sky laws of the various states in connection with the exercisability of
the Rights. The Company may temporarily suspend, for a period of time not to
exceed 90 days after the date set forth in this SECTION 9(C)(I), the
exercisability of the Rights in order to prepare and file such registration
statement and permit it to become effective. Upon any such suspension, the
Company shall notify the Rights Agent and 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 that
the rights are currently exercisable. Notwithstanding any
11
such provision of this Agreement to the contrary, the Rights shall not be
exercisable for securities in any jurisdiction if the requisite qualification in
such jurisdiction shall not have been obtained, such exercise therefor shall not
be permitted under applicable law or a registration statement in respect of such
securities shall not have been declared effective.
(d) The Company covenants and agrees that it will take all such
action as may be necessary to ensure that all one one-hundredths of a share of
Preferred Stock (and, following the occurrence of a Triggering Event, Common
Stock or other securities) issuable upon exercise of the Rights shall, at the
time of delivery of the certificates for such securities (subject to payment of
the Purchase Price), be duly authorized, validly issued, fully paid, and
nonassessable.
(e) The Company further covenants and agrees that it will pay when
due and payable any and all federal and state transfer taxes and other
governmental charges which may be payable in respect of the issuance or delivery
of the Rights Certificates and of any certificates for Preferred Stock (or
Common Stock or other securities, as the case may be) upon the exercise of
Rights. The Company shall not, however, be required to pay any transfer tax or
other governmental charge which may be payable in respect of any transfer
involved in the issuance or delivery of any Rights Certificates or of any
certificates for Preferred Stock (or Common Stock or other securities, as the
case may be) to a Person other than the registered holder of the applicable
Rights Certificate, and prior to any such transfer, issuance or delivery any
such tax or other governmental charge shall have been paid by the holder of such
Rights Certificate or it shall have been established to the Company's
satisfaction that no such tax or other governmental charge is due.
SECTION 10. PREFERRED STOCK RECORD DATE. Each Person (other than the
Company) in whose name any certificate for Preferred Stock (or Common Stock or
other securities, as the case may be) is issued upon the exercise of Rights
shall for all purposes be deemed to have become the holder of record of such
Preferred Stock (or Common Stock or other securities, as the case may be)
represented thereby on, and such certificate shall be dated, the date upon which
the Rights Certificate evidencing such Rights was duly surrendered and payment
of the Purchase Price (and any applicable transfer taxes or other governmental
charges) was made; PROVIDED, HOWEVER, that if the date of such surrender and
payment is a date upon which the transfer books of the Company relating to the
Preferred Stock (or Common Stock or other securities, as the case may be) 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 applicable transfer books of the Company are open.
SECTION 11. ADJUSTMENT OF PURCHASE PRICE, NUMBER AND KIND OF SHARES OR
NUMBER OF RIGHTS. The Purchase Price, the number and kind of shares covered by
each Right, and the number of Rights outstanding are subject to adjustment from
time to time, as provided in this SECTION 11.
(a)(i) If the Company shall at any time after the Effective Date (A)
declare or pay a dividend on the Preferred Stock payable in shares of Preferred
Stock (or other capital stock), (B)
12
subdivide the outstanding Preferred Stock into a greater number of shares, (C)
combine the outstanding Preferred Stock into a smaller number of shares, or (D)
issue any shares of its capital stock in a reclassification of the Preferred
Stock (including any such reclassification in connection with a consolidation or
merger involving the Company in which the Company is the surviving or continuing
corporation), except as otherwise provided in SECTION 7(D) and this SECTION
11(A), then the Purchase Price in effect immediately prior to the record date
for such dividend or of the effective date of such subdivision, combination or
reclassification, and the number and kind of shares of Preferred Stock or other
capital stock issuable on such date shall be proportionately adjusted so that
each holder of a Right shall thereafter be entitled to receive, upon exercise
thereof at the Purchase Price in effect immediately prior to such date, the
aggregate number and kind of shares of Preferred Stock or other capital stock,
as the case may be, which, if such Right had been exercised immediately prior to
such date and at a time when the applicable transfer books of the Company were
open, such holder would have been entitled to receive upon such exercise and by
virtue of such dividend, subdivision, combination or reclassification. If an
event occurs which requires an adjustment under both this 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 SECTIONS 23 AND 24, if:
(A) any Person, alone or together with its Affiliates
and Associates, shall, at any time after the Effective Date
become an Acquiring Person (other than pursuant to a
Qualifying Tender Offer), or
(B) during such time as there is an Acquiring Person,
there shall be a reclassification of securities (including any
reverse stock split), recapitalization of the Company, or any
merger or consolidation of the Company with any of its
Subsidiaries or any other transaction or series of
transactions involving the Company or any of its Subsidiaries
(whether or not with or into or otherwise involving an
Acquired Person), other than a Flip-over Event(s), which has
the effect, directly or indirectly, of increasing by more than
2% the proportionate share of the outstanding shares of any
class of equity or convertible securities of the Company or
any of its Subsidiaries which is directly or indirectly
beneficially owned by any Acquiring Person or any Associate or
Affiliate of any Acquiring Person, or
(C) any Acquiring Person or any Associate or
Affiliate of any Acquiring Person, at any time after the
Effective Date, directly or indirectly, (1) shall merge into
the Company or otherwise combine or consolidate with the
Company and the Company shall be the continuing or surviving
corporation of such merger, combination or consolidation and,
in connection with such merger, combination or consolidation,
none of the outstanding shares of the Common Stock shall be
changed into or exchanged for stock or other securities of the
Company or of any other Person or cash or any other property,
(2) shall, in one
13
transaction or a series of transactions, other than in
connection with the exercise of a Right or Rights and other
than in connection with the exercise or conversion of
securities exercisable for or convertible into securities of
the Company which securities were outstanding prior to the
time such Acquiring Person became such, transfer any assets to
the Company or to any of its Subsidiaries in exchange (in
whole or in part) for shares of Common Stock, for other equity
securities of the Company, or for securities exercisable for
or convertible into shares of equity securities of the Company
(Common Stock or otherwise) or otherwise obtain from the
Company, with or without consideration, any additional shares
of such equity securities or securities exercisable for or
convertible into shares of such equity securities (other than
pursuant to a pro rata offer or distribution to all holders of
Common Stock), (3) shall sell, purchase, lease, exchange,
mortgage, pledge, transfer or otherwise dispose of assets (in
one or more transactions), to, from, with or of, as the case
may be, the Company or any of its Subsidiaries (including, in
the case of Subsidiaries, by way of a merger, combination or
consolidation of any Subsidiary), on terms and conditions less
favorable to the Company than the Company would be able to
obtain in arm's-length negotiations with an unaffiliated third
party, other than pursuant to a Flip-over Event, (4) shall
sell, purchase, lease, exchange, mortgage, pledge, transfer or
otherwise acquire or dispose of in one transaction or a series
of transactions, to, from or with (as the case may be) the
Company or any of its Subsidiaries (other than incidental to
the lines of business, if any, engaged in as of such date
between the Company and such Acquiring Person or Associates or
Affiliate) assets having an aggregate fair market value of
more than $4,000,000, other than pursuant to a transaction set
forth in SECTION 13(A), (5) shall receive any compensation
from the Company or any of its Subsidiaries other than
compensation for full-time employment as a regular employee,
or fees for serving as a director, at rates in accordance with
the Company's (or its Subsidiaries') past practices, or (6)
shall receive the benefit, directly or indirectly (except
proportionately as a stockholder and except if resulting from
a requirement of law or governmental regulation), of any
loans, assumptions of loans, advances, guarantees, pledges or
other financial assistance, or any tax credits or other tax
advantage, provided by the Company or any of its Subsidiaries,
provided that the events described in SECTIONS 11(A)(II)(A),
(B) AND (C) shall not include a repurchase by the Company of
Common Stock that is approved by a majority of Directors,
promptly following five days after the date of the occurrence
of the event described in SECTION 11(A)(II)(A) hereof and
promptly following the occurrence of any event described in
SECTION 11(A)(II)(B) or (C) hereof, then proper provision
shall promptly be made so that each holder of a Right shall
(except as otherwise provided herein, including, without
limitation, SECTION 7(D)) thereafter be entitled to receive,
upon exercise of the Right in accordance with the terms of
this Agreement at the then current Purchase Price and in lieu
of Preferred Stock, such number of duly authorized, validly
issued,
14
fully paid and nonassessable shares of Common Stock (such
shares being referred to herein as the "ADJUSTMENT SHARES") as
shall be equal to the result obtained by (x) multiplying the
then current Purchase Price by the number of one
one-hundredths of a share of Preferred Stock for which a Right
is then exercisable (such product being thereafter referred to
as the "PURCHASE PRICE" for each Right and for all purposes of
this Agreement), and dividing that product by (y) 50% of the
current market price (determined pursuant to SECTION 11(D)(I))
per share of Common Stock on the date of such first
occurrence; PROVIDED, HOWEVER, that if the transaction that
would otherwise give rise to the foregoing adjustment is also
subject to the provisions of SECTION 13, then only the
provisions of SECTION 13 shall apply and no adjustment shall
be made pursuant to this SECTION 11(A)(II).
(iii) If the number of shares of Common Stock which are
authorized by the Company's certificate of incorporation but not
outstanding or reserved for issuance other than upon exercise of the
Rights is insufficient to permit the exercise in full of the Rights in
accordance with SECTION 11(A)(II), the Company shall (A) determine the
excess of (1) the value of the Adjustment Shares issuable upon the
exercise of a Right (computed using the "CURRENT MARKET PRICE" used to
determine the number of Adjustment Shares), over (2) the Purchase Price
(such excess being referred to herein as the "SPREAD"), and (B) with
respect to each Right, make adequate provision to substitute for the
Adjustment Shares, (1) (to the extent available) Common Stock and then,
(2) (to the extent available) other equity securities of the Company
which a majority of the Directors has determined to be essentially
equivalent to shares of Common Stock in respect to dividend,
liquidation and voting rights (such securities being referred to herein
as "COMMON STOCK equivalents"), and then, if necessary, (3) other
equity or debt securities of the Company, cash or other assets, a
reduction in the Purchase Price or any combination of the foregoing,
having an aggregate value (as determined by the Board of Directors
based upon the advice of a nationally recognized investment banking
firm selected by the Board of Directors) equal to the value of the
Adjustment Shares; PROVIDED, HOWEVER, if the Company shall not have
made adequate provision to deliver value pursuant to clause (B) above
within thirty (30) days following the latter of (x) the first
occurrence of a Flip-in Event and (y) the date on which the Company's
right of redemption pursuant to SECTION 23 expires, then the Company
shall be obligated to deliver, upon the surrender for exercise of a
Right and without requiring payment of the Purchase Price, shares of
Common Stock (to the extent available), shares of Preferred Stock of
the Company, and then, if necessary, cash, which shares and cash have
an aggregate value equal to the Spread. If the Board of Directors of
the Company shall determine in good faith that it is likely that
sufficient additional shares of Common Stock could be authorized for
issuance upon exercise in full of the Rights, the 30 day period set
forth above (such period, as it may be extended, being referred to
herein as the "SUBSTITUTION PERIOD") may be extended to the extent
necessary, but not more than 90 days following the first occurrence of
a Flip-In Event, in order that the Company may seek stockholder
approval for the authorization of such additional shares. If the
Company determines that some action is to be taken pursuant to the
first or second sentence of this SECTION 11(A)(III), then the
15
Company (x) shall provide, subject to SECTION 7(D), 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 or to decide the appropriate form and value of any consideration
to be delivered as referred to in such first or second sentence. If any
such suspension occurs, 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)(III), the value of the Common Stock shall be the current market
price per share of Common Stock (as determined pursuant to SECTION
11(D)) on the later of the date of the first occurrence of a Flip-in
Event and the first date that the right to redeem the Rights pursuant
to SECTION 23 shall expire; any common stock equivalent shall be deemed
to have the same value as the Common Stock on such date; and the value
of other securities or assets shall be determined pursuant to SECTION
11(D)(III).
(b) If the Company shall fix a record date for the issuance of rights,
options or warrants to all holders of Preferred Stock entitling them to
subscribe for or purchase (for a period expiring within 45 calendar days after
such record date) Preferred Stock (or securities having the same rights,
privileges and preferences as the shares of Preferred Stock ("EQUIVALENT
PREFERRED STOCK")) or securities convertible into or exercisable for Preferred
Stock (or equivalent preferred stock) at a price per share of Preferred Stock
(or equivalent preferred stock) (in each case, taking account of any conversion
or exercise price) less than the current market price (as determined pursuant to
SECTION 11(D)) per share of Preferred Stock on such record date, the Purchase
Price to be in effect after such record date shall be determined by multiplying
the Purchase Price in effect immediately prior to such date by a fraction, the
numerator of which shall be the number of shares of Preferred Stock outstanding
on such record date, plus the number of shares of Preferred Stock which the
aggregate price (taking account of any conversion or exercise price) of the
total number of shares of Preferred Stock (and/or equivalent preferred stock) so
to be offered would purchase at such current market price, and the denominator
of which shall be the number of shares of Preferred Stock outstanding on such
record date, plus the number of additional shares of Preferred Stock (and/or
equivalent preferred stock) so to be offered. In case such subscription price
may be paid by delivery of 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 and shall be conclusive for
all purposes. Shares of Preferred Stock owned by or held for the account of the
Company shall not be deemed outstanding for the purpose of any such computation.
Such adjustment shall be made successively whenever such a record date is fixed,
and if 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 Preferred Stock (including any such distribution
made in connection with a consolidation or merger involving the Company in which
the Company is the surviving entity) of
16
evidences of indebtedness, equity securities other than Preferred Stock, cash or
assets (other than a regular periodic cash dividend out of the earnings or
retained earnings of the Company) or rights, options or warrants (excluding
those referred to in SECTION 11(B)), the Purchase Price to be in effect after
such record date shall be determined by multiplying the Purchase Price in effect
immediately prior to such record date by a fraction, the numerator of which
shall be the current market price (as determined pursuant to SECTION 11(D)) per
share of Preferred Stock on such record date, less the value (as determined
pursuant to SECTION 11(D)(III)) of such evidences of indebtedness, equity
securities, assets, rights, options or warrants so to be distributed with
respect to one share of Preferred Stock, and the denominator of which shall be
such current market price per share of Preferred Stock (as determined by SECTION
11(D)). Such adjustment shall be made successively whenever such a record date
is fixed, and if such distribution is not so made, 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.
(d)(i) For the purpose of any computation hereunder other than
computations made pursuant to SECTION 11(A)(III) OR 14, the "CURRENT MARKET
PRICE" per share of Common Stock on any date shall be deemed to be the average
of the daily closing prices per share of such Common Stock for the 30
consecutive Trading Days immediately prior to such date; for purposes of
computations made pursuant to SECTION 11(A)(III), the "CURRENT MARKET PRICE" per
share of Common Stock on any date shall be deemed to be the average of the daily
closing prices per share of such Common Stock for the 10 consecutive Trading
Days immediately following such date; and for purposes of computations made
pursuant to SECTION 14, the "CURRENT MARKET PRICE" per share of Common Stock for
any Trading Day shall be deemed to be the closing price per share of Common
Stock for such Trading Day; PROVIDED, HOWEVER, that if the current market price
per share of the Common Stock is determined during a period following the
announcement by the issuer of such Common Stock of (A) a dividend or
distribution on such Common Stock payable in shares of such Common Stock or
securities exercisable for or convertible into shares of such Common Stock
(other than the Rights), or (B) any subdivision, combination or reclassification
of such Common Stock, and prior to the expiration of the requisite 30 Trading
Day or 10 Trading Day period after the ex-dividend date for such dividend or
distribution, or the record date for such subdivision, combination or
reclassification, then, and in each such case, the "CURRENT MARKET PRICE" shall
be properly adjusted to take into account ex-dividend trading. The closing price
for each day shall be the last sale price, regular way, or, in case no such sale
takes place on such day, the average of the closing bid and asked prices,
regular way, in either case as reported in the principal consolidated
transaction reporting system with respect to securities listed or admitted to
trading on the New York Stock Exchange or, if the shares of Common Stock are not
listed or admitted to trading on the New York Stock Exchange, on the principal
national securities exchange on which the shares of Common Stock are listed or
admitted to trading or, if the shares of Common Stock are not listed or admitted
to trading on any national securities exchange, the last quoted price or, if not
so quoted, the average of the high bid and low asked prices in the
over-the-counter market, as reported by The Nasdaq Stock Market or such other
system then in use or, if on any such date the shares of Common Stock are not
quoted by any such organization, the average of the closing bid and asked prices
as furnished by a professional market maker making a market in the Common Stock
selected by the Board of
17
Directors of the Company. If on any such date no market maker is making a market
in the Common Stock, then the fair value of such shares on such date as
determined in good faith by the Board of Directors of the Company shall be used.
If the Common Stock is not publicly held or not so listed or traded, the
"CURRENT MARKET PRICE" per share means the fair value per share as determined in
good faith by the Board of Directors of the Company, which determination shall
be described in a statement filed with the Rights Agent and shall be conclusive
for all purposes.
(ii) For the purpose of any computation hereunder, the
"CURRENT MARKET PRICE" per share of Preferred Stock shall be determined
in the same manner set forth above for the Common Stock in SECTION
11(D)(I) (other than the last sentence thereof). If the current market
price per share of Preferred Stock cannot be determined in such manner,
or if the Preferred Stock is not publicly held or listed or traded in a
manner described in SECTION 11(D)(I), then the "CURRENT MARKET PRICE"
per share of Preferred Stock shall be conclusively deemed to be an
amount equal to 100 (as such number may be appropriately adjusted for
such events as stock splits, stock dividends and recapitalizations with
respect to the Common Stock occurring after the Effective Date)
multiplied by the current market price per share of Common Stock (as
determined pursuant to SECTION 11(D)(I) (other than the last sentence
thereof)). If neither the Common Stock nor the Preferred Stock is
publicly held or so listed or traded, the "CURRENT MARKET PRICE" per
share of the Preferred Stock shall be determined in the same manner as
set forth in the last sentence of SECTION 11(D)(I). For all purposes of
this Agreement, the "CURRENT MARKET PRICE" of one one-hundredth of a
share of Preferred Stock shall be equal to the "CURRENT MARKET PRICE"
of one share of Preferred Stock divided by 100.
(iii) For the purpose of any computation hereunder, the value
of any securities or assets other than Common Stock or Preferred Stock
shall be the fair value as determined in good faith by the Board of
Directors of the Company, which determination shall be described in a
statement filed with the Rights Agent and shall be conclusive for all
purposes.
(e) Anything herein to the contrary notwithstanding, no adjustment in
the Purchase Price shall be required unless such adjustment would require an
increase or decrease of at least 2% in the Purchase Price; PROVIDED, HOWEVER,
that any adjustments which by reason of this SECTION 11(E) are not required to
be made shall be carried forward and taken into account in any subsequent
adjustment. All calculations under this SECTION 11 shall be made to the nearest
cent or to the nearest ten-thousandth of a share of Common Stock or other share
or one-millionth of a share of Preferred Stock, as the case may be.
(f) If at any time, as a result of an adjustment made pursuant to
SECTION 11(A)(II) or SECTION 13(A), the holder of any Right shall be entitled to
receive upon exercise of such Right any shares of capital stock other than
Preferred Stock, thereafter the number of such other shares so receivable upon
exercise of any Right and the Purchase Price thereof shall be subject to
adjustment from time to time in a manner and on terms as nearly equivalent as
practicable to the
18
provisions with respect to the Preferred Stock contained in SECTIONS 11(A), (B),
(C), (E), (G), (H), (I), (J), (K) AND (M), and the provisions of SECTIONS 7, 9,
10, 13 AND 14 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 hereunder shall evidence the right to purchase, at the Purchase
Price then in effect, the then applicable number of one one-hundredths of a
share of Preferred Stock and other capital stock of the Company issuable from
time to time hereunder upon exercise of the Rights, all subject to further
adjustment as provided herein.
(h) Unless the Company shall have exercised its election as provided in
SECTION 11(I), upon each adjustment of the Purchase Price as a result of the
calculations made in SECTIONS 11(B) AND (C), each Right outstanding immediately
prior to the making of such adjustment shall thereafter evidence the right to
purchase, at the adjusted Purchase Price, that number of one one-hundredths of a
share of Preferred Stock (calculated to the nearest one-millionth) obtained by
(i) multiplying (x) the number of one one-hundredths of a share for which a
Right was exercisable immediately prior to this adjustment by (y) the Purchase
Price in effect immediately prior to such adjustment of the Purchase Price, and
(ii) dividing the product so obtained by the Purchase Price in effect
immediately after such adjustment of the Purchase Price.
(i) The Company may elect on or after the date of any adjustment of the
Purchase Price to adjust the number of Rights, in lieu of any adjustment in the
number of one one-hundredths of a share of Preferred Stock issuable 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
share of Preferred Stock for which such 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
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 Rights Certificates have
been issued, shall be at least 10 days later than the date of the public
announcement. If Rights Certificates have been issued, upon each adjustment of
the number of Rights pursuant to this SECTION 11(I), the Company shall, as
promptly as practicable, cause to be distributed to holders of record of Rights
Certificates on such record date Right Certificates evidencing, subject to
SECTION 14, the additional Rights to which such holders shall be entitled as a
result of such adjustment, or, at the option of the Company (including when such
adjustment may result in a decrease in the number of rights), shall cause to be
distributed to such holders of record in substitution and replacement for the
Rights Certificates held by such holders prior to the date of adjustment, and
upon surrender thereof, if required by the Company, new Rights Certificates
evidencing all the Rights to which such holders shall be entitled after such
adjustment. Rights Certificates so to be distributed shall be issued, executed
and countersigned in the manner provided for herein (and
19
may bear, at the option of the Company, the adjusted Purchase Price) and shall
be registered in the names of the holders of record of Rights Certificates on
the record date specified in the public announcement.
(j) Irrespective of any adjustment or change in the Purchase Price or
the number of one one-hundredths of a share of Preferred Stock issuable upon the
exercise of the Rights, the Rights Certificates theretofore and thereafter
issued may continue to express the Purchase Price per one one-hundredth of a
share and the number of shares which were expressed in the initial Rights
Certificates issued hereunder.
(k) Before taking any action that would cause an adjustment reducing
the Purchase Price below the par value, if any, of the number of one
one-hundredths of a share of Preferred Stock issuable upon exercise of the
Rights, the Company shall take any corporate action which may, in the opinion of
its counsel, be necessary in order that the Company may validly and legally
issue fully paid and nonassessable such number of one one-hundredths of a share
of Preferred Stock at such adjusted Purchase Price.
(l) In any case in which this SECTION 11 shall require that an
adjustment in the Purchase Price be made effective as of a record date for a
specified event, the Company may elect to defer until the occurrence of such
event the issuance to the holder of any Right exercised after such record date
the number of one one-hundredths of a share of Preferred Stock or other capital
stock of the Company, if any, issuable upon such exercise over and above the
number of one one-hundredths of a share of Preferred Stock or other capital
stock 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 ββββ 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 (i) consolidation or subdivision of the Preferred Stock, (ii)
issuance wholly for cash of any Preferred Stock at less than the current market
price, (iii) issuance wholly for cash of Preferred Stock or securities which by
their terms are convertible into or exercisable for Preferred Stock, (iv) stock
dividends, or (v) issuance of rights, options or warrants referred to in this
SECTION 11, hereafter made by the Company to the holders of its Preferred Stock,
shall not be taxable to such stockholders.
(n) The Company covenants and agrees that it will not at any time after
the Distribution Date, (i) consolidate with any other Person, (ii) merge with or
into any other Person, (iii) effect a statutory share exchange with any Person,
or (iv) sell, lease or otherwise transfer (and/or permit any of its Subsidiaries
to sell, lease or otherwise transfer), in one transaction or a series of related
transactions, assets aggregating more than 50% of the assets (measured by either
book value or fair market value) or generating more than 50% of operating income
or cash flow
20
of the Company and its Subsidiaries, taken as a whole, to any other Person or
Persons if (x) at the time of or immediately after such consolidation, merger,
statutory share exchange, sale, lease or transfer there are any rights, warrants
or other instruments or securities outstanding or any agreements or arrangements
in effect which would substantially diminish or otherwise eliminate the benefits
intended to be afforded by the Rights, or (y) prior to, simultaneously with or
immediately after such consolidation, merger, statutory share exchange, sale,
lease or transfer, the stockholders of a Person who constitutes, or would
constitute, the "PRINCIPAL PARTY" for the purposes of SECTION 13 shall have
received a distribution of Rights previously owned by such Person or any of its
Affiliates and Associates.
(o) The Company covenants and agrees that after the Distribution Date,
it will not, except as permitted by SECTIONS 23, 24 OR 27, take (or permit any
Subsidiary to take) any action if at the time such action is taken it is
reasonably foreseeable that such action will substantially diminish or otherwise
eliminate the benefits intended to be afforded by the Rights, unless such action
is approved by a majority of the Directors.
(p) Notwithstanding anything in this Agreement to the contrary, if at
any time after the Record Date and prior to the Distribution Date the Company
shall (i) pay a dividend on the outstanding shares of Common Stock payable in
shares of Common Stock, (ii) subdivide the outstanding Common Stock into a
larger number of shares, or (iii) combine the outstanding Common Stock into a
smaller number of shares, the number of Rights associated with each share of
Common Stock then outstanding, or issued or delivered thereafter shall be
proportionately adjusted so that the number of Rights thereafter associated with
each share of Common Stock following any such event shall equal the result
obtained by multiplying the number of Rights associated with each share of
Common Stock immediately prior to such event by a fraction the numerator of
which shall be the total number of shares of Common Stock outstanding
immediately prior to the occurrence of the event and the denominator of which
shall be the total number of shares of Common Stock outstanding immediately
following the occurrence of such event.
SECTION 12. CERTIFICATE OF ADJUSTED PURCHASE PRICE OR NUMBER OF SHARES.
Whenever an adjustment is made as provided in SECTIONS 11 AND 13, the Company
shall (a) promptly prepare a certificate setting forth such adjustment and a
brief statement of the facts accounting for such adjustment, (b) promptly file
with the Rights Agent and with each transfer agent for the Preferred Stock and
the Common Stock a copy of such certificate, and (c) mail a brief summary
thereof to each holder of a Rights Certificate (or, if prior to the Distribution
Date, to each holder of a certificate representing shares of Common Stock) in
the manner set forth in SECTION 26. The Rights Agent shall be fully protected in
relying on any such certificate and on any adjustment contained therein and
shall not be obligated or responsible for calculating any adjustment nor shall
it be deemed to have knowledge of any such adjustment unless and until it shall
have received such a certificate.
SECTION 13. CONSOLIDATION, MERGER OR SALE OR TRANSFER OF ASSETS OR
EARNING POWER. (a) Except for any transaction with a Person who has consummated
a Qualifying Tender
21
Offer which transaction is approved by a majority of the Directors, if following
the Share Acquisition Date, directly or indirectly,
(w) the Company shall consolidate with, merge with or
into, or otherwise combine with, any other Person, and the
Company shall not be the continuing or surviving corporation
of such consolidation, merger or combination, or
(x) any Person shall consolidate with, merge with or
into, or otherwise combine with, the Company, and the Company
shall be the continuing or surviving corporation of such
consolidation, merger or combination and, in connection with
such consolidation, merger or combination, all or part of the
outstanding shares of Common Stock shall be changed into or
exchanged for other stock or securities of the Company or any
other Person or cash or any other property, or
(y) the Company shall be a party to any statutory
share exchange with any other Person after which the Company
is a subsidiary of any other Person, or
(z) the Company and/or one or more of its
Subsidiaries shall sell, lease or otherwise transfer, in one
transaction or a series of related transactions, assets
aggregating more than 50% of the assets (measured by either
book value or fair market value) or generating more than 50%
of the operating income or cash flow of the Company and its
Subsidiaries, taken as a whole, to any other Person or
Persons,
then, and in each such case, proper provision shall promptly be made so that
(i) each holder of a Right, except as provided in SECTION
7(D), shall thereafter be entitled to receive, upon exercise thereof at
the then current Purchase Price, such number of duly authorized,
validly issued, fully paid and nonassessable shares of freely tradable
Common Stock of the Principal Party (as defined below), not subject to
any rights of call or first refusal, liens, encumbrances or other
claims, as shall be equal to the result obtained by (A) multiplying the
then current Purchase Price by the number of one one-hundredths of a
share of Preferred Stock for which a Right was exercisable immediately
prior to the first occurrence of a Flip-over Event (or, if a Flip-in
Event has previously occurred, multiplying the number of such one
one-hundredths of a share of Preferred Stock for which a Right was
exercisable immediately prior to the first occurrence of a Flip-in
Event by the Purchase Price in effect immediately prior to such first
occurrence) (such product being thereafter referred to as the "PURCHASE
PRICE" for each Right and for all purposes of this Agreement), and
dividing that product by (B) 50% of the current market price
(determined pursuant to SECTION 11(D)(I)) per share of the Common Stock
or other securities of such Principal Party) on the date of
consummation
22
of such consolidation, merger, combination, statutory share exchange,
sale, lease or transfer;
(ii) the Principal Party shall thereafter be liable for, and
shall assume, by virtue of such consolidation, merger, combination,
statutory share exchange, sale, lease or transfer, all the obligations
and duties of the Company pursuant to this Agreement;
(iii) the term "COMPANY" shall thereafter be deemed to refer
to such Principal Party, it being specifically intended that the
provisions of SECTION 11 shall apply only to such Principal Party
following the first occurrence of a Flip-over Event;
(iv) such Principal Party shall take such steps (including,
without limitation, the authorization and reservation of a sufficient
number of shares of its Common Stock to permit exercise of all
outstanding Rights in accordance with this SECTION 13(A)) in connection
with the consummation of any such transaction as may be necessary to
assure that the provisions hereof shall thereafter be applicable, as
nearly as reasonably may be, in relation to the shares of its Common
Stock thereafter deliverable upon the exercise of the Rights; and
(v) the provisions of SECTION 11(A)(II) shall be of no effect
following the first occurrence of a Flip-over Event.
(b) "PRINCIPAL PARTY" means:
(i) in the case of any transaction described in SECTIONS 13(A)
(W), (X) OR (Y), (A) the Person that is the issuer of any securities
into which shares of Common Stock are converted in such merger,
consolidation, or combination or for which shares of Common Stock are
exchanged in such statutory share exchange, or, if there is more than
one such issuer, the issuer of the Common Stock of which has the
greatest aggregate market value, or (B) if no securities are issued,
(x) the person that survives such consolidation or is the other party
to the merger, combination or statutory share exchange, or, if there is
more than one such Person, the Person the Common Stock of which has the
greatest aggregate market value, or (y) if the Person that is the other
party to the merger does not survive the merger, the Person that does
survive the merger (including the Company if it survives); and
(ii) in the case of any transactions described in SECTIONS
13(A)(Z), the Person that is the party receiving the greatest portion
of the assets, operating income or cash flow 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, operating income or cash flow so transferred, or, if the Person
receiving the greatest portion of the assets, operating income or cash
flow cannot be determined, the person the Common Stock of which has the
greatest aggregate market value;
23
PROVIDED, HOWEVER, that in any such case, (A) if the Common Stock of such Person
is not at such time and has not been continuously over the preceding 12-month
period registered under Section 12 of the Exchange Act, and such Person is a
direct or indirect Subsidiary of another Person the Common Stock of which is and
has been so registered, "PRINCIPAL PARTY" shall refer to such other Person; and
(B) in case such Person is a Subsidiary, directly or indirectly, of more than
one Person, the Common Stock of two or more of which are and have been so
registered, "PRINCIPAL PARTY" shall refer to whichever of such Persons is the
issuer of the Common Stock having the greatest aggregate market value.
(c) The Company shall not consummate any such consolidation, merger,
combination, statutory share exchange, sale, lease or transfer unless the
Principal Party shall have a sufficient number of authorized shares of its
Common Stock which are not outstanding or otherwise reserved for issuance to
permit the exercise in full of the Rights in accordance with this SECTION 13 and
unless prior thereto the Company and such Principal Party shall have executed
and delivered to the Rights Agent a supplemental agreement providing for the
terms set forth in SECTIONS 13(A) AND (B) and further providing that, as soon as
practicable after the date of any consolidation, merger, combination, statutory
share exchange, sale, lease or transfer mentioned in SECTION 13(A), the
Principal Party will (i) prepare and file a registration statement under the
Securities Act with respect to the Rights and the securities issuable upon
exercise of the Rights on an appropriate form, and will use its best efforts to
cause such registration statement (A) to become effective as soon as practicable
after such filing, and (B) to remain effective (with a prospectus at all times
meeting the requirements of the Securities Act) until the Expiration Date; and
(ii) deliver to holders of the Rights historical financial statements for the
Principal Party and each of its Affiliates which comply in all respects with the
requirements for registration on Form 10 under the Exchange Act.
(d) The provisions of this SECTION 13 shall similarly apply to
successive mergers, consolidations, combinations, statutory share exchanges,
sales, leases or other transfers. If any Flip-over Event shall occur at any time
after the occurrence of a Flip-in Event, the Rights which have not theretofore
been exercised shall thereafter become exercisable in the manner described in
SECTION 13(A).
SECTION 14. FRACTIONAL RIGHTS AND FRACTIONAL SHARES. (a) The Company
shall not be required to issue fractions of Rights, except prior to the
Distribution Date as provided in SECTION 11(P), or to distribute Rights
Certificates which evidence fractional Rights. In lieu of any such fractional
Rights, the Company shall pay to the registered holders of the Rights
Certificates with regard to which such fractional Rights would otherwise be
issuable an amount in cash equal to the same fraction of the current market
price of a whole Right. For purposes of this SECTION 14(A), the current market
price of a whole Right shall be the closing price of a Right for the Trading Day
immediately prior to the date on which such fractional Rights would otherwise
have been issuable. The closing price of a Right 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 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
24
any national securities exchange, the last quoted price, or, if not so quoted,
the average of the high bid and low asked prices in the over-the-counter market,
as reported by The Nasdaq Stock Market 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
current market price of the Rights on such date shall be as determined in good
faith by the Board of Directors of the Company.
(b) The Company shall not be required to issue fractions of shares of
Preferred Stock (other than fractions which are multiples of one one-hundredth
of a share of Preferred Stock) upon exercise of the Rights or to distribute
certificates which evidence fractional shares of Preferred Stock (other than
fractions which are multiples of one one-hundredth of a share of Preferred
Stock). In lieu of any such fractional shares of Preferred Stock, the Company
shall pay to the registered holders of Rights Certificates at the time such
Rights are exercised as herein provided an amount in cash equal to the same
fraction of the current market price of one one-hundredth of a share of
Preferred Stock. For purposes this SECTION 14(B), the current market price of
one one-hundredth of a share of Preferred Stock shall be one one-hundredth of
the closing price of a share of Preferred Stock (as determined pursuant to
SECTION 11(D)) for the Trading Day immediately prior to the date of such
exercise.
(c) Following the occurrence of any Triggering Event or upon any
exchange pursuant to SECTION 24, the Company shall not be required to issue
fractions of shares of Common Stock upon exercise of the Rights or to distribute
certificates which evidence fractional shares of Common Stock. In lieu of
fractional shares of Common Stock, the Company shall pay to the registered
holders of Rights Certificates at the time such Rights are exercised or
exchanged as provided herein an amount in cash equal to the same fraction of the
current market price of a share of Common Stock. For purposes of this SECTION
14(C), the current market price of a share of Common Stock shall be the closing
price of a share of Common Stock (as determined pursuant to SECTION 11(d)(i))
for the Trading Day immediately prior to the date of such exercise or exchange.
(d) 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 permitted by this SECTION 14.
SECTION 15. RIGHTS OF ACTION. All rights of action in respect of this
Agreement are vested in the respective registered holders of the Rights
Certificates (and, prior to the Distribution Date, the registered holders of
Common Stock), and any registered holder of any Rights Certificate (or, prior to
the Distribution Date, of any Common Stock), without the consent of the Rights
Agent or of the holder of any other Rights Certificate (or, prior to the
Distribution Date, of any Common Stock), may, in his own behalf and for his own
benefit, enforce, and may institute and maintain any suit, action or proceeding
against the Company to enforce, or otherwise act in respect of, his right to
exercise the Rights evidenced by such Rights Certificate
25
in the manner provided in such Rights Certificate and in this Agreement. Without
limiting the foregoing or any remedies available to the holders of Rights, it is
specifically acknowledged that the holders of Rights would not have an adequate
remedy at law for any breach of this Agreement and 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.
SECTION 16. AGREEMENT OF RIGHT HOLDERS. Every holder of a Right by
accepting the same consents and agrees with the Company and the Rights Agent and
with every other holder of a Right that:
(a) prior to the Distribution Date, the Rights will be transferable
only in connection with the transfer of Common Stock;
(b) after the Distribution Date, the Rights Certificates are
transferable only on the registry books of the Rights Agent if surrendered at
the principal office or offices of the Rights Agent designated for such
purposes, duly endorsed or accompanied by a proper instrument of transfer and
with the appropriate forms and certificates fully executed;
(c) subject to SECTIONS 6(A) AND 7(E), the Company and the Rights Agent
may deem and treat the Person in whose name a Rights Certificate (or, prior to
the Distribution Date, a certificate representing Common Stock) is registered as
the absolute owner thereof and of the Rights evidenced thereby (notwithstanding
any notations of ownership or writing on the Rights Certificate or the
certificate representing shares of Common Stock made by anyone other than the
Company or the Rights Agent) for all purposes whatsoever, and neither the
Company nor the Rights Agent, subject to the last sentence of SECTION 7(D),
shall be affected by any notice to the contrary; and
(d) notwithstanding anything in this Agreement to the contrary, neither
the Company nor the Rights Agent shall have any liability to any holder of a
Right or other Person as a result of its inability to perform any of its
obligations under this Agreement by reason of any preliminary or permanent
injunction or other order, decree or ruling issued by a court of competent
jurisdiction or by a governmental, regulatory or administrative agency or
commission, or any statute, rule, regulation or executive order promulgated or
enacted by any governmental authority prohibiting or otherwise restraining
performance of such obligation; PROVIDED, HOWEVER, that the Company must use its
best efforts to have any such order, decree or ruling lifted or otherwise
overturned as soon as possible.
SECTION 17. RIGHTS CERTIFICATE HOLDER NOT DEEMED A STOCKHOLDER. No
holder, as such, of any Rights Certificate shall be entitled to vote, receive
dividends or be deemed for any purpose the holder of the shares of capital stock
which may at any time be issuable on the exercise of the Rights represented
thereby, nor shall anything contained herein or in any Rights Certificate be
construed to confer upon the holder of any Rights Certificate, as such, any of
the rights of a stockholder of the Company or any right to vote for the election
of directors or upon
26
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), or to
receive dividends or subscription rights, or otherwise, until the Right or
Rights evidenced by such Rights Certificate shall have been exercised in
accordance with the provisions hereof.
SECTION 18. CONCERNING THE RIGHTS AGENT.
---------------------------
(a) The Company agrees to pay to the Rights Agent reasonable
compensation for all services rendered by it hereunder and, from time to time,
on demand of the Rights Agent, its reasonable expenses and reasonable counsel
fees and other disbursements incurred in the execution or administration of this
Agreement or the exercise or performance of its duties hereunder. The Company
also agrees to indemnify the Rights Agent, its directors, officers, employees
and agents for, and to hold each of them harmless against, any loss, liability,
or expense, incurred without gross negligence, bad faith or willful misconduct
on the part of the Rights Agent, for anything done or omitted by any of them in
connection with the acceptance and administration of this Agreement or the
exercise or performance of the Rights Agent's duties hereunder, including the
costs and expenses of defending against any claim of liability.
(b) The Rights Agent shall be protected and shall incur no liability
for or in respect of any action taken, suffered or omitted by it in connection
with the administration of this Agreement or the exercise or performance of its
duties hereunder in reliance upon any Rights Certificate or certificate for
Common Stock or for other securities of the Company, instrument of assignment or
transfer, power of attorney, endorsement, affidavit, letter, notice,
instruction, 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.
(c) The indemnity provided in this SECTION 18 shall survive the
expiration of the Rights, the resignation or removal of the Rights Agent and the
termination if this Agreement.
SECTION 19. MERGER OR CONSOLIDATION OR CHANGE OF NAME OF RIGHTS AGENT.
(a) Any corporation into which the Rights Agent or any successor Rights
Agent may be merged or with which it may be consolidated, or any corporation
resulting from any merger or consolidation to which the Rights Agent or any
successor Rights Agent shall be a party, or any corporation succeeding to the
corporate trust or stock transfer business of the Rights Agent or any successor
Rights Agent, shall be the successor to the Rights Agent under this Agreement
without the execution or filing of any paper or any further act on the part of
any of the parties hereto; PROVIDED, HOWEVER, that such corporation would be
eligible for appointment as a successor Rights Agent under the provisions of
SECTION 21. In case at the time such successor Rights Agent shall succeed to the
agency created by this Agreement, any of the Rights Certificates shall have been
countersigned but not delivered, any such successor Rights Agent may adopt the
countersignature of a predecessor Rights Agent and deliver such Rights
27
Certificates so countersigned; and in case at that time any of the Rights
Certificates shall not have been countersigned, any successor Rights Agent may
countersign such Rights Certificates either in the name of the predecessor
Rights Agent or in the name of the successor Rights Agent; and in all such cases
such Rights Certificates shall have the full force provided in the Rights
Certificates and in this Agreement.
(b) In case at any time the name of the Rights Agent shall be changed
and at such time any of the Rights Certificates shall have been countersigned
but not delivered, the Rights Agent may adopt the countersignature under its
prior name and deliver Rights Certificates so countersigned; and in case at that
time any of the Rights Certificates shall not have been countersigned, the
Rights Agent may countersign such Rights Certificates either in its prior name
or in its changed name; and in all such cases, such Rights Certificates shall
have the full force provided in the Rights Certificates and in this Agreement.
SECTION 20. DUTIES OF RIGHTS AGENT. The Rights Agent undertakes the
duties and obligations imposed by this Agreement upon the following terms and
conditions, by all of which the Company and the holders of Rights Certificates,
by their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel (who may be legal
counsel for the Company), and the advice or 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 advice
or opinion.
(b) Whenever in the performance of its duties under this Agreement the
Rights Agent shall deem it necessary or desirable that any fact or matter
(including, without limitation, the identity of any "ACQUIRING PERSON" and the
determination of "CURRENT MARKET PRICE") be proved or established by the Company
prior to taking, suffering or omitting to take any action hereunder, such fact
or matter (unless other evidence in respect thereof is specifically prescribed
herein) may be deemed to be conclusively proved and established by a certificate
signed by the Chairman of the Board, the Chief Executive Officer and President,
any Vice President, the Secretary or any Assistant Secretary of the Company and
delivered to the Rights Agent. Any such certificate shall be full authorization
to the Rights Agent for any action taken, suffered or omitted in good faith by
it under the provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder only for its own gross
negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of the
statements of fact or recitals contained in this Agreement or in the Rights
Certificates (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.
28
(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 Rights Certificate (except its countersignature thereof); nor
shall it be responsible for any breach by the Company of any covenant or
condition contained in this Agreement or in any Rights Certificate; nor shall it
be responsible for any change in the exercisability of the Rights (including the
Rights becoming void pursuant to SECTION 7(D)) or any adjustment in the terms of
the Rights (including the manner, method or amount thereof) provided for in
SECTIONS 3, 11, 13, 23 OR 24, or the ascertaining of the existence of facts that
would require any such adjustment (except with respect to the exercise of Rights
evidenced by Rights Certificates after actual notice of any such adjustment);
nor shall it by any act hereunder be deemed to make any representation or
warranty as to the authorization or reservation of any shares of Common Stock or
Preferred Stock to be issued pursuant to this Agreement or any Rights
Certificate or as to whether any shares of Common Stock or Preferred Stock will,
when issued, be duly authorized, validly 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
other acts, instruments, notices, calculations and assurances as may reasonably
be required by the Rights Agent for the carrying out or performing by the Rights
Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from the
Chairman of the Board, the Chief Executive Officer and President, any Vice
President, the Secretary or any Assistant 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, suffered or omitted to be taken by
it in good faith in accordance with instructions of any such officer or for any
delay in acting while awaiting instructions. Any application by the Rights Agent
for written instructions from the Company may, at the option of the Rights
Agent, set forth in writing any action proposed to be taken or omitted by the
Rights Agent under this Agreement and the date on or after which such action
shall be taken or such omission shall be effective. The Rights Agent shall not
be liable for any action taken by, or omission of, the Rights Agent in
accordance with a proposal included in any such application on or after the date
specified in such application (which date shall not be less than five (5)
Business Days after the date any officer of the Company actually receives such
application, unless any such officer shall have consented in writing to an
earlier date) unless, prior to taking any such action (or the effective date in
the case of an omission), the Rights Agent shall have received written
instructions in response to such application specifying the action to be taken
or omitted.
(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 the
29
Rights Agent under this Agreement. Nothing herein shall preclude the Rights
Agent from acting in any other capacity for the Company or for any other Person.
(i) The Rights Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either itself or by or
through its attorneys or agents, and the Rights Agent shall not be answerable or
accountable for any act, default, neglect or misconduct of any such attorneys or
agents or for any loss to the Company or to any holders of Rights resulting from
any such act, default, neglect or misconduct; PROVIDED, HOWEVER, that the Rights
Agent exercised reasonable care 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.
(k) If, with respect to any Rights Certificate surrendered to the
Rights Agent for exercise or transfer, the certificate attached to the form of
assignment or form of election to purchase, as the case may be, has either not
been completed or indicates an affirmative response to clause 1 or 2 thereof,
the Rights Agent shall not take any further action with respect to such
requested exercise or transfer without first consulting with the Company.
(l) The Rights Agent undertakes only the express duties and obligations
imposed on it by this Agreement and no implied duties or obligations shall be
read into this Agreement against the Rights Agent.
(m) 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).
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' written notice mailed to the Company and to each transfer agent of
the Common Stock and Preferred Stock by registered or certified mail, and,
subsequent to the Distribution Date, to the holders of the Rights Certificates
by first-class mail. The Company may remove the Rights Agent or any successor
Rights Agent upon 30 days' written notice, mailed to the Rights Agent or
successor Rights Agent, as the case may be, and to each transfer agent of the
Common Stock and Preferred Stock by registered or certified mail, and subsequent
to the Distribution Date, to the holders of the Rights Certificates by
first-class mail. If the Rights Agent shall resign or be removed or shall
otherwise become incapable of acting, the Company shall appoint a successor to
the Rights Agent. If the Company shall fail to make such appointment within a
period of 30 days of giving notice of such removal or after it has been notified
in writing of such resignation or incapacity by the resigning or incapacitated
Rights Agent or by the holder of a Rights Certificate (who shall, with such
notice, submit his Rights Certificate for inspection by the Company), then the
30
registered holder of any Rights Certificate may apply to any court of competent
jurisdiction for the appointment of a new Rights Agent. Any successor Rights
Agent, whether appointed by the Company or by such a court, shall be (a) a
corporation organized and doing business under the laws of the United States or
of the States of New York or Georgia (or any other state of the United States so
long as such corporation is authorized to do business as a banking institution
in the States of New York or Georgia), in good standing, having a principal
office in the States of New York or Georgia, which is authorized under such laws
to exercise stock transfer or corporate trust powers and is subject to
supervision or examination by federal or state authority and which has at the
time of its appointment as Rights Agent a combined capital and surplus of at
least $10,000,000 or (b) an Affiliate of a corporation described in SECTION
21(A). After appointment, the successor Rights Agent shall be vested with the
same powers, rights, duties and responsibilities as if it had been originally
named as Rights Agent without further act or deed; but the predecessor Rights
Agent shall deliver and transfer to the successor Rights Agent any property at
the time held by it hereunder, and execute and deliver any further assurance,
conveyance, act or deed necessary for the purpose. Not later than the effective
date of any such appointment, the Company shall file notice thereof in writing
with the predecessor Rights Agent and each transfer agent of the Common Stock
and the Preferred Stock, and, subsequent to the Distribution Date, mail a notice
thereof in writing to the registered holders of the Rights Certificates. Failure
to give any notice provided for in this SECTION 21, 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 Rights Certificates evidencing Rights in such form
as may be approved by its Board of Directors to reflect any adjustment or change
in the Purchase Price and the number or kind or class of shares or other
securities issuable or property purchasable upon exercise of the Rights made in
accordance with the provisions of this Agreement. In addition, in connection
with the issuance or sale by the Company of Common Stock following the
Distribution Date and prior to the Expiration Date, the Company (a) will, with
respect to shares of Common Stock so issued or sold pursuant to the exercise,
exchange or conversion of securities (other than Rights) issued prior to the
Distribution Date which are exercisable or exchangeable for, or convertible into
shares of Common Stock, and (b) may, in any other case, if deemed necessary,
appropriate or desirable by the Board of Directors of the Company, issue Rights
Certificates representing an equivalent number of Rights as would have been
issued in respect of such shares of Common Stock if they had been issued or sold
prior to the Distribution Date, as appropriately adjusted as provided herein as
if they had been so issued or sold; PROVIDED, HOWEVER, that (i) no such Rights
Certificate shall be issued if, and to the extent that, in its good faith
judgment the Board of Directors of the Company determines that the issuance of
such Rights Certificate could have a material adverse tax consequence to the
Company or to the Person to whom or which such Rights Certificate otherwise
would be issued and (ii) no such Rights Certificate shall be issued if, and to
the extent that, appropriate adjustment otherwise has been made in lieu of the
issuance thereof.
31
SECTION 23. REDEMPTION AND TERMINATION.
--------------------------
(a) The Company may, at its option, but only upon the vote of a
majority of the Board of Directors in office at the time of such vote, at any
time prior to the earlier of (i) the Close of Business on the tenth day
following a Share Acquisition Date, or (ii) the Final Expiration Date, redeem
all but not less than all of the then outstanding Rights at a redemption price
of $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 referred to herein as the "REDEMPTION
PRICE"), and the Company may, at its option, pay the Redemption Price in shares
of Common Stock (based on the "CURRENT MARKET PRICE," as defined in SECTION
11(d), of the shares of Common Stock at the time of redemption), cash or any
other form of consideration deemed appropriate by the Board of Directors;
PROVIDED, HOWEVER, that any redemption of Rights shall also be subject to any
additional approval procedures required by the certificate of incorporation or
bylaws of the Company; PROVIDED FURTHER, HOWEVER, that if following the
occurrence of a Share Acquisition Date and following the expiration of the right
of redemption hereunder, (i) a Person who is an Acquiring Person shall have
transferred or otherwise disposed (in accordance with the standards in SECTION
7(D)) of a number of shares of Common Stock in one transaction or series of
transactions, not directly 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 14% 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 in this Agreement to the contrary, the Rights shall not be exercisable
after the first occurrence of a Flip-in Event until such time as the Company's
right of redemption hereunder has expired.
(b) Immediately upon the action of the Board of Directors of the
Company ordering the redemption of the Rights, evidence of which shall have been
filed with the Rights Agent and without any further action and without any
notice, the right to exercise the Rights will terminate and the only right
thereafter of the holders of Rights shall be to receive the Redemption Price for
each Right so held. Promptly after the action of the Board of Directors ordering
the redemption of the Rights, the Company shall give notice of such redemption
to the Rights Agent and the holders of the then outstanding Rights by mailing
such notice in the manner set forth in SECTION 26; PROVIDED, HOWEVER, that the
failure to give, or any defect in, such notice shall not affect the validity of
such redemption.
SECTION 24. EXCHANGE.
--------
(a) At any time after any Person becomes an Acquiring Person, a
majority of the Directors may, at their option, exchange all or part of the then
outstanding and exercisable Rights (which shall not include Rights that have
become void pursuant to SECTION 7(D)) for shares of Common Stock at an exchange
ratio of one share of Common Stock per Right, appropriately
32
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").
(b) Immediately upon the action of the Board of Directors electing to
exchange any Rights pursuant to SECTION 24(A) and without any further action and
without any notice, the right to exercise such Rights will terminate and
thereafter the only right of a holder of such Rights shall be to receive that
number of shares of Common Stock equal to the number of such Rights held by such
holder multiplied by the Exchange Ratio. The Company shall promptly thereafter
give notice of such exchange to the Rights Agent and the holders of the Rights
to be exchanged in the manner set forth in SECTION 26; PROVIDED, HOWEVER, that
the failure to give, or any defect in, such notice shall not affect the validity
of such exchange. Any notice which is mailed in the manner provided herein 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 shares of 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 SECTION 7(D)) held by each holder of Rights.
(c) If there shall not be sufficient Common Stock issued but not
outstanding or authorized but unissued to permit any exchange of Rights as
contemplated by this SECTION 24, the Company shall take all such action as may
be necessary to authorize additional Common Stock for issuance upon exchange of
the Rights. In the event the Company shall, after a good faith effort, be unable
to take all such action as may be necessary to authorize such additional Common
Stock, the Company may substitute common stock equivalents (as defined in
SECTION 11(A)(III)) for shares of Common Stock exchangeable for Rights, at the
initial rate of one common stock equivalent for each share of Common Stock, as
appropriately adjusted to reflect adjustments in dividend, liquidation and
voting rights of common stock equivalents pursuant to the terms thereof, so that
each common stock equivalent delivered in lieu of each share of Common Stock
shall have essentially the same dividend, liquidation and voting rights as one
share of Common Stock.
(d) The Company shall not be required to issue fractional shares of
Common Stock or to distribute certificates which evidence fractional shares of
Common Stock. In lieu of such fractional shares of Common Stock, the Company
shall pay to the registered holders of Rights Certificates with regard to which
such fractional shares of Common Stock would otherwise be issuable, an amount in
cash equal to the same fraction of the current market value of a whole share of
Common Stock. For purposes of this SECTION 24(D), the current market value of a
whole share of Common Stock shall be the closing price of a share of Common
Stock (as determined pursuant to SECTION 11(D)) for the Trading Day immediately
prior to the date of the exchange.
SECTION 25. NOTICE OF PROPOSED ACTIONS. (a) If the Company shall
propose, at any time after the Distribution Date, (i) to pay any dividend
payable in stock of any class to the holders of Preferred Stock or to make any
other distribution to the holders of Preferred Stock (other than a regular
quarterly cash dividend out of earnings or retained earnings of
33
the Company), (ii) to offer to the holders of its Preferred Stock rights or
warrants to subscribe for or to purchase any additional shares of Preferred
Stock or shares of stock of any class or any other securities, rights or
options, (iii) to effect any reclassification of its Preferred Stock (other than
a reclassification involving only the subdivision or combination of outstanding
shares of Preferred Stock), (iv) to effect any consolidation or merger with or
into any other Person, or to effect a statutory share exchange with any Person,
or to effect and/or to permit one or more of its Subsidiaries to effect any
sale, lease or other transfer, in one transaction or a series of related
transactions, of assets aggregating more than 50% of the assets (measured by
either book value or fair market value) or generating more than 50% of the
operating income or cash flow of the Company and its Subsidiaries, taken as a
whole, to any other Person or Persons, or (v) to effect the liquidation,
dissolution or winding up of the Company, then, in each such case, the Company
shall give to each holder of a Right, to the extent feasible and in accordance
with SECTION 26, a notice of such proposed action, which shall specify the
record date for the purposes of any such dividend, distribution or offering of
rights or warrants, or the date on which any such reclassification,
consolidation, merger, statutory share exchange, sale, lease, transfer,
liquidation, dissolution or winding up is to take place and the date of
participation therein by the holders of Preferred Stock, if any such date is to
be fixed, and such notice shall be so given in the case of any action covered by
clause (i) or (ii) above at least 20 days prior to the record date for
determining holders of the Preferred Stock entitled to participate in such
dividend, distribution or offering, and in the case of any such other action, at
least 20 days prior to the date of the taking of such proposed action or the
date of participation therein by the holders of Preferred Stock, whichever shall
be the earlier. The failure to give notice required by this Section or any
defect therein shall not affect the legality or validity of the action taken by
the Company or the vote upon any such action.
(b) Notwithstanding anything in this Agreement to the contrary, prior
to the Distribution Date a public filing by the Company with the Securities and
Exchange Commission shall constitute sufficient notice to the holders of
securities of the Company, including the Rights, for purposes of this Agreement
and no other notice need be given to such holders.
(c) If a Triggering Event shall occur, then, in any such case, (i) the
Company shall as soon as practicable thereafter give to each holder of a Right,
in accordance with SECTION 26, a notice of the occurrence of such event, which
shall specify the event and the consequences of the event to holders of Rights
under SECTION 11(A)(II) OR 13, as the case may be, and (ii) all references in
SECTION 25(A) to Preferred Stock shall be deemed thereafter to refer to Common
Stock or other capital stock, as the case may be.
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 to or on the
Company shall be sufficiently given or made if sent by first-class, postage
prepaid mail to the address of the Company indicated on the signature page
hereof or such other address as the Company shall specify in writing to the
Rights Agent. Subject to the provisions of SECTION 21, any notice or demand
authorized by this Agreement to be given or made by the Company or by the holder
of any Right to or on the Rights Agent shall be sufficiently given or made if
sent by first-class,
34
postage prepaid mail to the address of the Rights Agent indicated on the
signature page hereof or such other address as the Rights Agent shall specify in
writing to the Company. Notices or demands authorized by this Agreement to be
given or made by the Company or the Rights Agent to the holder of any Rights
Certificate (or, prior to the Distribution Date, to the holder of any
certificate representing shares of Common Stock) shall be sufficiently given or
made if sent by first-class, postage prepaid mail to the address of such holder
shown on the registry books of the Company.
SECTION 27. SUPPLEMENTS AND AMENDMENTS. Prior to the Distribution Date
and subject to the penultimate sentence of this SECTION 27, the Company may, and
the Rights Agent shall, if the Company so directs, supplement or amend any
provision of this Agreement without the approval of any holders of certificates
representing shares of Common Stock so long as the duties, liabilities and
indemnification of the Rights Agent are not affected. From and after the
Distribution Date, and subject to the penultimate sentence of this SECTION 27,
the Company may, and the Rights Agent shall, if the Company so directs,
supplement or amend this Agreement without the approval of any holders of Right
Certificates in order (a) to cure any ambiguity, (b) to correct or supplement
any provision contained herein which may be defective or inconsistent with any
other provisions herein, (c) to shorten or lengthen any time period hereunder,
or (d) to change or supplement the provisions hereof in any manner which the
Company may deem necessary or desirable and which shall not adversely affect the
interests of the holders of Rights (other than an Acquiring Person or an
Affiliate or Associate of an Acquiring Person); PROVIDED, HOWEVER, that this
Agreement may not be supplemented or amended pursuant to SECTION 27(C) to
lengthen (i) a time period relating to when the Rights may be redeemed at such
time as the Rights are not then redeemable, or (ii) any other time period,
unless lengthening such other time period is for the purpose of protecting,
enhancing, or clarifying the rights of, or benefits to the holders of, the
Rights. Upon the delivery of a certificate from an appropriate officer of the
Company which states that the proposed supplement or amendment is in compliance
with the terms of this Section, the Rights Agent shall execute such supplement
or amendment. Notwithstanding anything contained in this Agreement to the
contrary, no supplement or amendment shall be made which changes the Redemption
Price, the Final Expiration Date, the Purchase Price or the number of one
one-hundredths of a share of Preferred Stock for which a Right is exercisable.
Prior to the Distribution Date, the interests of the holders of Rights shall be
deemed coincident with the interests of the holders of Common Stock.
SECTION 28. SUCCESSORS. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Rights Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder.
SECTION 29. DETERMINATIONS AND ACTIONS BY THE BOARD OF DIRECTORS. For
all purposes of this Agreement, any calculation of the number of shares of
Common Stock outstanding at any particular time, including for purposes of
determining the particular percentage of such outstanding shares of Common Stock
of which any Person is the Beneficial Owner, shall be made in accordance with
the last sentence of Rule 13d-3(d)(1)(i) of the General Rules and Regulations
under the Exchange Act as in effect on the Effective Date. The Board of
35
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 (a) interpret the provisions of this Agreement, and (b) make all
determinations deemed necessary or advisable for the administration of this
Agreement (including a determination to redeem or exchange or not to redeem or
exchange the Rights or to amend this Agreement). All such actions, calculations,
interpretations and determinations (including, for purposes of clause (y) below,
all omissions with respect to the foregoing) which are done or made by the Board
in good faith, shall (x) be final, conclusive and binding on the Company
(subject to any additional redemption approval procedures referred to in the
proviso to the immediately preceding sentence), the Rights Agent, the holders of
the Rights and all other parties, and (y) not subject the Board of Directors of
the Company to any liability to the holders of the Rights.
SECTION 30. BENEFITS OF THIS AGREEMENT. Nothing in this Agreement shall
be construed to give to any Person other than the Company and, the Rights Agent,
and the successors and assigns of each, if any, and the registered holders of
the Rights Certificates (and, prior to the Distribution Date, the certificates
representing the shares of Common Stock) any legal or equitable right, remedy or
claim under this Agreement; but this Agreement shall be for the sole and
exclusive benefit of the Company, the Rights Agent and the registered holders of
the Rights Certificates (and, prior to the Distribution Date, the certificates
representing the shares of Common Stock).
SECTION 31. SEVERABILITY. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated;
PROVIDED, HOWEVER, that, notwithstanding anything in this Agreement to the
contrary, if any such term, provision, covenant or restriction is held by such
court or authority to be invalid, void or unenforceable and the Board of
Directors of the Company determines in its good faith judgment that severing the
invalid language from this Agreement would adversely affect the purpose or
effect of this Agreement, the right of redemption set forth in SECTION 23 hereof
shall be reinstated and shall not expire until the close of business on the
tenth day following the date of such determination by the Board of Directors.
SECTION 32. GOVERNING LAW. This Agreement, each Right and each Rights
Certificate issued hereunder shall be deemed to be a contract made under the
laws of the State of Delaware and for all purposes shall be governed by and
construed in accordance with the laws of such State (other than its conflicts of
laws rules) applicable to contracts to be made and performed entirely within
such State.
SECTION 33. 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 one and
the same instrument.
36
SECTION 34. DESCRIPTIVE HEADINGS. The captions herein are included for
convenience of reference only, do not constitute a part of this Agreement and
shall be ignored in the construction and interpretation hereof.
37
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
COMPANY
PRACTICEWORKS, INC.
By: /s/ βββββ β. βββββββ
--------------------------------
Name: βββββ β. βββββββ
----------------------------
Title: Senior Vice President and
Chief Financial Officer
---------------------------
1765 The Exchange
βββββββ, βββββββ βββββ
Tel: (βββ) βββ-ββββ
Fax: (βββ) βββ-ββββ
RIGHTS AGENT
STOCKTRANS, INC.
By: /s/ ββββ ββββββ
---------------------------------
Name: ββββ ββββββ
---------------------------
Title: Vice President
--------------------------
StockTrans, Inc.
ββ ββββ βββββββββ ββββββ
βββββββ, ββ βββββ
Tel: (βββ)βββ-ββββ
Fax: (βββ)βββ-ββββ
38
EXHIBIT A
FORM OF CERTIFICATE OF DESIGNATION, POWERS, PREFERENCES AND RIGHTS OF THE
SERIES D PARTICIPATING CUMULATIVE PREFERRED STOCK
OF
PRACTICEWORKS, INC.
(A DELAWARE CORPORATION)
-----------------------------------------------------------
Pursuant to the provisions of Section 151(g)
of the General Corporation Law of the State of Delaware
-----------------------------------------------------------
PracticeWorks, Inc. (the "CORPORATION"), a corporation organized and
validly existing under the General Corporation Law of the State of Delaware,
filed its original Certificate of Incorporation with the Corporations Division
on August 10, 2000. Under the provisions of and subject to the requirements of
Section 151(g) of the General Corporation Law of the State of Delaware, the
undersigned, desiring to set the designation, powers, preferences and rights of
the authorized but unissued preferred stock of the Corporation, does hereby
certify that the following resolutions were duly adopted by the Board of
Directors of the Corporation at a meeting held on November 5, 2002:
WHEREAS, the Certificate of Incorporation of the Company dated August
10, 2000 (the "CERTIFICATE OF INCORPORATION"), authorizes a class of stock
designated as preferred stock (the "PREFERRED STOCK"), comprising 20,000,000
shares, par value $0.01 per share, provides that such Preferred Stock may be
issued from time to time in one or more series, and vests authority in the Board
of Directors of the Corporation, within the limitations and restrictions stated
in the Certificate of Incorporation, to fix or alter the voting powers,
designations, preferences and relative participating, optional or other special
rights, rights and terms of redemption, the redemption price or prices and the
liquidation preferences of any series of Preferred Stock within the limitations
set forth in the Delaware General Corporation Law (the "DGCL"); and
WHEREAS, it is the desire of the Board of Directors of the Corporation
to designate one new series of Preferred Stock and to fix the voting powers,
designations, preferences and rights, and the qualifications, limitations or
restrictions thereof, as provided hereinafter;
NOW, THEREFORE, BE IT HEREBY RESOLVED, that the Corporation does hereby
designate 1,000,000 shares of the authorized but unissued Preferred Stock as
Series D Participating Cumulative Preferred Stock (the "SERIES D PREFERRED
STOCK") and does hereby fix the powers, preferences and relative participating,
optional or other special rights and qualifications, limitations or restrictions
of the Series D Preferred Stock to be as follows:
A-1
"SERIES D PARTICIPATING CUMULATIVE PREFERRED STOCK
SECTION 1. DESIGNATION AND NUMBER OF SHARES. The shares of such series
shall be designated as "Series D Participating Cumulative Preferred Stock" (the
"SERIES D PREFERRED STOCK"), and the number of shares constituting such series
shall be 1,000,000. Such number of shares of the Series D Preferred Stock may be
increased or decreased by resolution of the Board of Directors; provided,
however, that no decrease shall reduce the number of shares of Series D
Preferred Stock to a number less than the number of shares then outstanding plus
the number of shares issuable upon exercise or conversion of outstanding rights,
options or other securities issued by the Company.
SECTION 2. DIVIDENDS AND DISTRIBUTIONS.
(A) Subject to the prior and superior rights of the holders of
any shares of any series of Preferred Stock ranking prior and superior to the
shares of Series D Preferred Stock with respect to dividends, if any, the
holders of shares of Series D Preferred Stock shall be entitled to receive,
when, as and if declared by the Board of Directors out of funds legally
available for the purpose, quarterly dividends payable on the last day of March,
June, September and December of each year (each such date being referred to
herein as a "QUARTERLY DIVIDEND PAYMENT DATE"), commencing on the first
Quarterly Dividend Payment Date after the first issuance of any share or
fraction of a share of Series D Preferred Stock, in an amount per share (rounded
to the nearest cent) equal to the greater of (a) $1.00 and (b) subject to the
provision for adjustment hereinafter set forth, 100 times the aggregate per
share amount (payable in kind) of all cash dividends or other distributions and
100 times the aggregate per share amount of all non-cash dividends or other
distributions (other than (i) a dividend payable in shares of Common Stock, par
value $0.01 per share, of the Company (the "COMMON STOCK") or (ii) a subdivision
of the outstanding shares of Common Stock (by reclassification or otherwise)),
declared on the Common Stock since the immediately preceding Quarterly Dividend
Payment Date, or, with respect to the first Quarterly Dividend Payment Date,
since the first issuance of any share or fraction of a share of Series D
Preferred Stock. If the Company shall at any time after NOVEMBER 18, 2002 (the
"RIGHTS DECLARATION DATE") declare or pay any dividend on 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) 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 D Preferred Stock
were entitled immediately prior to such event under clause (b) of the preceding
sentence shall be adjusted by multiplying such amount by a fraction, the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
(B) The Company shall declare a dividend or distribution on
the Series D Preferred Stock as provided in SECTION 2(A) immediately after it
declares a dividend or distribution on the Common Stock (other than as described
in clauses (i) and (ii) of the first sentence of SECTION 2(A)); provided,
however, that if no dividend or distribution shall have been declared on the
Common Stock during the period between any Quarterly Dividend Payment Date and
the next subsequent Quarterly Dividend Payment Date (or, with respect to the
first Quarterly Dividend Payment Date, the period between the first issuance of
any share or fraction of a share
A-2
of Series D Preferred Stock and such first Quarterly Dividend Payment Date), a
dividend of $1.00 per share on the Series D Preferred Stock shall nevertheless
be payable on such subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series D Preferred Stock from the Quarterly Dividend
Payment Date next preceding the date of issue of such shares of Series D
Preferred Stock, unless the date of issue of such shares is on or before the
record date for the first Quarterly Dividend Payment Date, in which case
dividends on such shares shall begin to accrue and be cumulative from the date
of issue of such shares, or unless the date of issue is a date after the record
date for the determination of holders of shares of Series D Preferred Stock
entitled to receive a quarterly dividend and on or before such Quarterly
Dividend Payment Date, in which case dividends shall begin to accrue and be
cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid
dividends shall not bear interest. Dividends paid on shares of Series D
Preferred Stock in an amount less than the total amount of such dividends at the
time accrued and payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding. The Board of
Directors may fix a record date for the determination of holders of shares of
Series D Preferred Stock entitled to receive payment of a dividend or
distribution declared thereon, which record date shall not be more than 60 days
prior to the date fixed for the payment thereof.
SECTION 3. VOTING RIGHTS. In addition to any other voting rights
required by law, the holders of shares of Series D Preferred Stock shall have
the following voting rights:
(A) Subject to the provision for adjustment hereinafter set
forth, each share of Series D Preferred Stock shall entitle the holder thereof
to 100 votes on all matters submitted to a vote of stockholders of the Company.
If the Company shall at any time after the Rights Declaration Date declare or
pay any dividend on Common Stock payable in shares of Common Stock or effect a
subdivision or combination or consolidation of the outstanding shares of Common
Stock (by reclassification or otherwise) 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 D Preferred Stock were entitled immediately
prior to such event shall be adjusted by multiplying such number by a fraction,
the numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
(B) Except as otherwise provided herein or by law, the holders
of shares of Series D Preferred Stock and the holders of shares of Common Stock
shall vote together as a single class on all matters submitted to a vote of
stockholders of the Company.
(C) (i) If at any time dividends on any Series D Preferred
Stock shall be in arrears in an amount equal to six quarterly dividends thereon
(whether or not consecutive), the occurrence of such contingency shall ββββ the
beginning of a period (herein called a "DEFAULT PERIOD") which shall extend
until such time when all accrued and unpaid dividends for all previous quarterly
dividend periods and for the current quarterly dividend period on all shares of
Series D Preferred Stock then outstanding shall have been declared and paid or
set apart for payment. During each default period, all holders of Series D
Preferred Stock and any other series of Preferred Stock then entitled as a class
to elect directors, voting together as a single class, irrespective of series,
shall have the right to elect one Director.
A-3
(ii) During any default period, such voting right of the
holders of Series D Preferred Stock may be exercised initially at a special
meeting called pursuant to SECTION 3(C)(III) or at any annual meeting of
stockholders, and thereafter at annual meetings of stockholders; provided,
however, that neither such voting right nor the right of the holders of any
other series of Preferred Stock, if any, to increase, in certain cases, the
authorized number of Directors shall be exercised unless the holders of 10% in
number of shares of Preferred Stock outstanding shall be present in person or by
proxy. The absence of a quorum of holders of Common Stock shall not affect the
exercise by holders of Preferred Stock of such voting right. At any meeting at
which holders of Preferred Stock shall exercise such voting right initially
during an existing default period, they shall have the right, voting as a class,
to elect Directors to fill such vacancy, if any, in the Board of Directors as
may then exist up to one Director or, if such right is exercised at an annual
meeting, to elect one Director. If the number which may be so elected at any
special meeting does not amount to the required number, the holders of the
Preferred Stock shall have the right to make such increase in the number of
Directors as shall be necessary to permit the election by them of the required
number. After the holders of the Preferred Stock shall have exercised their
right to elect Directors in any default period and during the continuance of
such period, the number of Directors shall not be increased or decreased except
by vote of the holders of Preferred Stock as herein provided or pursuant to the
rights of any equity securities ranking senior to or PARI PASSU with the Series
D Preferred Stock.
(iii) Notwithstanding anything to the contrary contained in
the Company's Certificate of Incorporation or Bylaws, unless the holders of
Preferred Stock shall, during an existing default period, have previously
exercised their right to elect Directors, the Board of Directors may order, or
any stockholder(s) owning in the aggregate not less than ten percent (10%) of
the total number of shares of Preferred Stock outstanding, irrespective of
series, may request, the calling of a special meeting of holders of Preferred
Stock, which meeting shall thereupon be called by the Chief Executive Officer
and President, a Vice President or the Secretary of the Company. Notice of such
meeting and of any annual meeting at which holders of Preferred Stock are
entitled to vote pursuant to this SECTION 3(C)(III) shall be given to each
holder of record of Preferred Stock by mailing a copy of such notice to him at
his last address as the same appears on the books of the Company. Such meeting
shall be called for a time not earlier than 20 days and not later than 60 days
after such order or request or in default of the calling of such meeting within
60 days after such order or request, such meeting may be called on similar
notice by any stockholder(s) owning in the aggregate not less than ten percent
(10%) of the total number of shares of Preferred Stock outstanding, irrespective
of series. Notwithstanding the provisions of this SECTION 3(C)(III), no such
special meeting shall be called during the period within 60 days immediately
preceding the date fixed for the next annual meeting of stockholders.
(iv) In any default period, the holders of Common Stock, and
other classes of stock of the Company if applicable, shall continue to be
entitled to elect the whole number of Directors until the holders of Preferred
Stock shall have exercised their right to elect one Director voting as a class,
after the exercise of which right (x) the Directors so elected by the holders of
Preferred Stock shall continue in office until their successors shall have been
elected by such holders or until the expiration of the default period, and (y)
any vacancy in the Board of Directors may (except as provided in SECTION
3(C)(II) be filled by vote of a majority of the remaining Directors theretofore
elected by the holders of the class of stock which elected the Director whose
office shall have become vacant. References in this SECTION 3(C) to Directors
A-4
elected by the holders of a particular class of stock shall include Directors
elected by such Directors to fill vacancies as provided in clause (y) of the
foregoing sentence.
(v) Immediately upon the expiration of a default period, (x)
the right of the holders of Preferred Stock as a class to elect Directors shall
cease, (y) the term of any Directors elected by the holders of Preferred Stock
as a class shall terminate, and (z) the number of Directors shall be such number
as may be provided for in the Certificate of Incorporation or Bylaws
irrespective of any increase made pursuant to the provisions of SECTION 3(C)(II)
(such number being subject, however, to change thereafter in any manner provided
by law or in the Certificate of Incorporation or Bylaws). Any vacancies in the
Board of Directors effected by the provisions of clauses (y) and (z) in the
preceding sentence may be filled by a majority of the remaining Directors.
(D) Except as otherwise provided herein, holders of Series D
Preferred Stock shall have no special voting rights, and their consent shall not
be required (except to the extent they are entitled to vote with holders of
Common Stock as set forth herein) for taking any corporate action.
SECTION 4. CERTAIN RESTRICTIONS.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series D Preferred Stock as provided in SECTION 2
are in arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on outstanding shares of Series D
Preferred Stock shall have been paid in full, the Company shall not:
(i) declare or pay dividends on, 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
D Preferred Stock;
(ii) declare or pay dividends on, or make any other
distributions on, any shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the
Series D Preferred Stock, except dividends paid ratably on the Series D
Preferred Stock and all such other 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, purchase or otherwise acquire for value any
shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series D Preferred
Stock; PROVIDED, HOWEVER, that the Company may at any time redeem,
purchase or otherwise acquire shares of any such junior stock in
exchange for shares of stock of the Company ranking junior (as to
dividends and upon dissolution, liquidation or winding up) to the
Series D Preferred Stock; or
(iv) redeem, purchase or otherwise acquire for value any
shares of Series D Preferred Stock, or any shares of stock ranking on a
parity (either as to dividends or upon liquidation, dissolution or
winding up) with the Series D 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 Series D Preferred Stock
and all such other parity stock 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
A-5
classes, shall determine in good faith will result in fair and
equitable treatment among the respective series or classes.
(B) The Company shall not permit any subsidiary of the Company
to purchase or otherwise acquire for value any shares of stock of the Company
unless the Company could, under SECTION 4(A), purchase or otherwise acquire such
shares at such time and in such manner.
SECTION 5. REACQUIRED SHARES. Any shares of Series D Preferred Stock
redeemed, purchased or otherwise acquired by the Company 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 without designation as to series and may be reissued
as part of a new series of Preferred Stock to be created by resolution or
resolutions of the Board of Directors as permitted by the Certificate of
Incorporation or as otherwise permitted under Delaware law.
SECTION 6. LIQUIDATION, DISSOLUTION OR WINDING UP. Upon any
liquidation, dissolution or winding up of the Company, 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 D
Preferred Stock unless, prior thereto, the holders of shares of Series D
Preferred Stock shall have received $1.00 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, however, that the holders of shares of
Series D 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 Common
Stock, or (2) to the holders of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the Series D
Preferred Stock, except distributions made ratably on the Series D Preferred
Stock and all such other 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. If the Company shall at any time after the Rights
Declaration Date pay any dividend on 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) 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 D 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.
SECTION 7. CONSOLIDATION OR MERGER. If the Company 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
or any other property, then in any such case the shares of Series D Preferred
Stock shall at the same time be similarly exchanged for 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 or any other
property, as the case may be, into which or for which each share of Common Stock
is exchanged or changed. If the Company shall at any time after the Rights
Declaration Date pay any dividend on 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
A-6
otherwise) 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 D Preferred Stock shall be adjusted
by multiplying such amount by a fraction the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
SECTION 8. NO REDEMPTION. The Series D Preferred Stock shall not be
redeemable.
SECTION 9. RANK. The Series D Preferred Stock shall rank junior (as to
dividends and upon liquidation, dissolution and winding up) to all other series
of the Company's preferred stock, except any series that specifically provides
that such series shall rank junior to the Series D Preferred Stock.
SECTION 10. FRACTIONAL SHARES. Series D Preferred Stock may be issued
in fractions of a share which shall entitle the holder, in proportion to such
holder's fractional shares, to exercise voting rights, receive dividends,
participate in distributions and to have the benefit of all other rights of
holders of Series D Preferred Stock.
SECTION 11. AMENDMENT. The Certificate of Incorporation of the Company
shall not be further amended in any manner which would materially alter or
change the powers, preferences or special rights of the Series D Preferred Stock
so as to affect them adversely without the affirmative vote of the holders of a
majority or more of the outstanding shares of Series D Preferred Stock, voting
separately as a class."
A-7
IN WITNESS WHEREOF, PracticeWorks, Inc. has caused this Certificat of
Designation to be executed by its duly authorized representative as of this ___
day of November, 2002.
PRACTICEWORKS, INC.
----------------------------
Name:_______________________
Title:______________________
A-8
EXHIBIT B
FORM OF RIGHTS CERTIFICATE
Certificate No. R- Rights
--------------------------
NOT EXERCISABLE AFTER THE EARLIER OF ________ __, _____, AND THE DATE ON WHICH
THE RIGHTS EVIDENCED HEREBY ARE REDEEMED OR EXCHANGED BY THE COMPANY AS SET
FORTH IN THE RIGHTS AGREEMENT. THE RIGHTS ARE SUBJECT TO REDEMPTION AT $0.001
PER RIGHT AND TO EXCHANGE ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. AS SET
FORTH IN THE RIGHTS AGREEMENT, RIGHTS ISSUED TO, OR HELD BY, ANY PERSON WHO IS,
WAS OR BECOMES AN ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE THEREOF (AS SUCH
TERMS ARE DEFINED IN THE RIGHTS AGREEMENT), WHETHER CURRENTLY HELD BY OR ON
BEHALF OF SUCH PERSON OR BY ANY SUBSEQUENT HOLDER, MAY BE NULL AND VOID. [THE
RIGHTS REPRESENTED BY THIS RIGHTS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY
A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN AFFILIATE OR AN ASSOCIATE
OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT). THIS
RIGHTS CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY BE OR MAY BECOME NULL
AND VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION 7(D) OF THE RIGHTS
AGREEMENT.)]1
RIGHTS CERTIFICATE
PRACTICEWORKS, INC.
This Rights Certificate certifies that , or registered
assigns, is the registered holder of the number of Rights set forth above, each
of which entitles the holder (upon the terms and subject to the conditions set
forth in that certain Rights Agreement, dated as of November 6, 2002 (the
"Rights Agreement"), between PracticeWorks, Inc., a Delaware corporation (the
"Company"), and StockTrans, Inc. a Pennsylvania corporation (the "Rights
Agent")), to purchase from the Company, at any time after the Distribution Date
(as such term is defined in the Rights Agreement) and prior to the Expiration
Date (as such term is defined in the Rights Agreement), one one-hundredth of a
fully paid, non-assessable share of Series D Participating Cumulative Preferred
Stock (the "Preferred Stock") of the Company, at a purchase price of $_______
per one one-hundredth of a share (the "Purchase Price"), payable in lawful money
of the United States of America, upon surrender of this Rights Certificate, with
the form of election to purchase and related certificate duly executed, and
payment of the Purchase Price at an office of the Rights Agent designated for
such purpose.
Terms used herein and not otherwise defined herein have the
meanings assigned to them in the Rights Agreement.
The number of Rights evidenced by this Rights Certificate (and
the number and kind of shares issuable upon exercise of each Right) and the
Purchase Price set forth above are as
-------------------
1 If applicable, insert this portion of the legend and delete the preceding
sentence.
B-1
of November 18, 2002, and may have been or in the future may be adjusted as a
result of the occurrence of certain events, as more fully provided in the Rights
Agreement.
Upon the occurrence of a Flip-in Event, if the Rights
evidenced by this Rights Certificate are beneficially owned by (a) an Acquiring
Person or an Associate or Affiliate of an Acquiring Person, (b) a transferee of
an Acquiring Person (or any such Associate or Affiliate) who becomes a
transferee after the Acquiring Person (or any such Associate or Affiliate)
becomes such, or (c) under certain circumstances specified in the Rights
Agreement, a transferee of an Acquiring Person (or any such Associate or
Affiliate) who becomes a transferee prior to or concurrently with the Acquiring
Person (or any such Associate or Affiliate) becoming such, such Rights shall
become null and void, and no holder hereof shall have any right with respect to
such Rights from and after the occurrence of such Flip-in Event.
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 Rights Certificates,
which limitations of rights include the temporary suspension of the
exercisability of such Rights under the specific circumstances set forth in the
Rights Agreement. Copies of the Rights Agreement are on file at the office of
the Company and are also available upon written request to the Company.
Upon surrender at the principal office or offices of the
Rights Agent designated for such purpose and subject to the terms and conditions
set forth in the Rights Agreement, any Rights Certificate(s) may be transferred
or exchanged for another Rights Certificate(s) evidencing a like number of
Rights as the Rights Certificate(s) surrendered. If this Rights Certificate
shall be exercised in part, the holder shall be entitled to receive upon
surrender hereof another Rights Certificate(s) for the number of whole Rights
not exercised.
Subject to the provisions of the Rights Agreement, the Board
of Directors of the Company may, at its option,
(a) at any time prior to the earlier of (i) the Close
of Business on the tenth day following a Share Acquisition
Date and (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; or
(b) at any time after any Person becomes an Acquiring
Person, exchange all or part of the then outstanding Rights
(other than Rights held by the Acquiring Person and certain
related Persons) for shares of Common Stock at an exchange
ratio of one share of Common Stock per Right. If the Rights
shall be exchanged in part, the holder of this Rights
Certificate shall be entitled to receive upon surrender hereof
another Rights Certificate(s) for the number of whole Rights
not exchanged.
After the expiration of the redemption period, the Company's
right of redemption may be reinstated if an Acquiring Person reduces his
beneficial ownership to fourteen percent
B-2
(14%) or less of the outstanding shares of Common Stock in a transaction or
series of transactions not involving the Company and there is no other Acquiring
Person.
No fractional shares of Preferred Stock are required to be
issued upon the exercise of any Right(s) evidenced hereby (other than fractions
which are multiples of one one-hundredth of a share of Preferred Stock, which
may, at the election of the Company, be evidenced by depository receipts), but
in lieu thereof a cash payment will be made, as provided in the Rights
Agreement.
No holder of this Rights Certificate shall be entitled to
vote, receive dividends or be deemed for any purpose the holder of the shares of
capital stock which may at any time be issuable on the exercise hereof, nor
shall anything contained in the Rights Agreement or herein be construed to
confer upon the holder hereof, as such, any of the rights of a stockholder of
the Company or any right to vote for the election of directors or upon any
matter submitted to stockholders at any meeting thereof, or to give or withhold
consent to any corporate action, or to receive notice of meetings or other
actions affecting stockholders (except as provided in the Rights Agreement), or
to receive dividends or subscription rights, or otherwise, until the Right(s)
evidenced by this Rights Certificate shall have been exercised as provided in
the Rights Agreement.
This Rights Certificate shall not be valid or obligatory for
any purpose until it shall have been countersigned by the Rights Agent.
B-3
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal by its authorized officers.
Dated as of ,
------------------------
PRACTICEWORKS, INC.
By:
Name:_________________________
Title:________________________
(SEAL)
Attest:
________________________________
Secretary
Countersigned:
_______________________________,
as Rights Agent
By:_____________________________
Authorized Signature
B-4
Form of Reverse Side of Rights Certificate
FORM OF ASSIGNMENT
(To be executed if the registered holder
desires to transfer the Rights Certificate.)
FOR VALUE RECEIVED___________________________________________________________
hereby sells, assigns and transfers unto ____________________________________
_____________________________________________________________________________
(Please print name and address of transferee)
_____________________________________________________________________________
this Rights Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint Attorney, to transfer the
within Rights Certificate on the books of the within-named Company, with full
power of substitution.
Dated:___________________________ __________________________________
Signature
Signature Guaranteed:
B-5
Certificate
The undersigned hereby certifies by checking the appropriate
boxes that:
(1) the Rights evidenced by this Rights Certificate ___ are
___ are not being assigned by or on behalf of a Person who is or was an
Acquiring Person or an Affiliate or Associate of any such Acquiring Person (as
such terms are defined in the Rights Agreement);
(2) after due inquiry and to the best knowledge of the
undersigned, it ___ did ___ did not acquire the Rights evidenced by this Rights
Certificate from any Person who is, was or became an Acquiring Person or an
Affiliate or Associate of an Acquiring person.
Dated:_________________________ ___________________________
Signature
NOTICE
The signatures to the foregoing Assignment and Certificate
must correspond to the name as written upon the face of this Rights Certificate
in every particular, without alteration or enlargement or any change whatsoever.
B-6
-------------------
FORM OF ELECTION TO PURCHASE
(To be executed if the registered holder desires to exercise Rights represented
by the Rights Certificate.)
To: PracticeWorks, Inc.
The undersigned hereby irrevocably elects to exercise
______________ Rights represented by this Rights Certificate to purchase shares
of Preferred Stock issuable upon the exercise of the Rights (or such other
securities of the Company or of any other Person which may be issuable upon the
exercise of the Rights) and requests that certificates for such securities be
issued in the name of and delivered to:
Please insert social security
or other identifying number
--------------------------------------------------------------------------------
(Please print name and address)
--------------------------------------------------------------------------------
If such number of Rights shall not be all the Rights evidenced
by this Rights Certificate, a new Rights Certificate for the balance 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:
B-7
EXHIBIT C
FORM OF SUMMARY OF RIGHTS TO PURCHASE PREFERRED STOCK
PRACTICEWORKS, INC.
On November 5, 2002, the Board of Directors of PracticeWorks, Inc., a
Delaware corporation (the "Company"), declared a dividend of one preferred stock
purchase right for each outstanding share of the Company's common stock, par
value $0.01 per share (the "Common Stock"). The dividend is payable on November
18, 2002 to the stockholders of record as of the close of business on November
18, 2002 (the "Record Date").
The Board of Directors has adopted a Rights Agreement to protect the
Company's stockholders from coercive or otherwise unfair takeover tactics. In
general terms, it works by imposing a significant penalty upon any person or
group which acquires 15% or more of our outstanding common stock without the
approval of our Board of Directors. The Rights Agreement should not interfere
with any merger or other business combination approved by the Board of
Directors.
For those interested in the specific terms of the Rights Agreement as
made between our Company and StockTrans, Inc., as the Rights Agent, on November
6, 2002 (the "Effective Date") we provide the following summary description.
Please note, however, that this description is only a summary, and is not
complete, and should be read together with the entire Rights Agreement, which
has been filed with the Securities and Exchange Commission as an exhibit to a
Current Report on Form 8-K filed on November 7, 2002. A copy of the agreement is
available free of charge from the Company.
Form of Security: The Board of Directors has
declared a dividend of one preferred stock
purchase right for each outstanding share of
the Company's Common Stock, payable to
holders of record as of the Record Date (each
a "Right," and collectively, the "Rights").
Distribution Date: The earlier of:
(1) the 10th day after public announcement
that (a) any person or group has become the
beneficial owner of 15% or more of the
Company's Common Stock, or (b) if any such
person or group has acquired such an
interest prior to the Effective Date, the
acquisition of an additional 2% or more of
the Common Stock then outstanding (other
than pursuant to an Approved Acquisition (as
defined below)); and
(2) the 10th business day after the date of
the commencement of a tender or exchange
offer by any person which would, if
consummated, result in such person becoming
the beneficial owner of 15% or more of the
Company's Common Stock, in each case,
subject to extension by a majority of the
Board of Directors.
C-1
Approved Acquisition: An acquisition of 15% or more of the Common
Stock then outstanding by any person, or, if
any person has acquired such an interest,
the acquisition of an additional 2% or more
of the Common Stock then outstanding, in
either event if such acquisition is approved
in advance by a majority of the Board of
Directors.
Qualifying Tender Offer: A tender or exchange offer for all the
Common Stock which is approved by a majority
of the Directors.
Transfer: Prior to the Distribution Date, the Rights
will be evidenced by the certificates for
and will be transferred with the Common
Stock, and the registered holders of the
Common Stock will be deemed to be the
registered holders of the Rights.
After the Distribution Date, the Rights
Agent will mail separate certificates
evidencing the Rights to each record holder
of the Common Stock as of the close of
business of the Distribution Date, and
thereafter the Rights will be transferable
separately from the Common Stock.
Exercise: Prior to the Distribution Date, the Rights
will not be exercisable.
After the Distribution Date, each Right will
be exercisable to purchase, for $40.00 (the
"Purchase Price"), one one-hundredth of a
share of Series D Participating Cumulative
Preferred Stock, par value $0.01 per share,
of the Company (the "Preferred Stock").
Flip-In: If (1) any person or group (an "Acquiring
Person") becomes the beneficial owner of 15%
or more of the Company's Common Stock (other
than pursuant to a Qualifying Tender Offer),
(2) during such time as there is an
Acquiring Person, an event occurs which
results in such Acquiring Person's ownership
interest in the Company being increased by
more than 2%, (3) the Company is the
surviving corporation in a merger with an
Acquiring Person and its Common Stock is not
changed or exchanged, or (4) an Acquiring
Person engages in one or more "self-dealing"
transactions as set forth in the Rights
Agreement, then each Right (other than
Rights beneficially owned by the Acquiring
Person and certain affiliated persons) will
entitle the holder to purchase, for the
Purchase Price, a number of shares of the
Company's Common Stock (or in certain
circumstances, cash, property or other
securities of the Company) having a market
value of twice the Purchase Price.
Notwithstanding the foregoing, in most
instances following the occurrence of the
events set forth in this paragraph, all
Rights that are, or (under certain
circumstances specified in the Rights
Agreement) were, beneficially owned by any
Acquiring Person will be null and void.
However, Rights are not exercisable
following the occurrence of the events set
forth above until such time as the Rights
C-2
are no longer redeemable by the Company as
set forth below.
Flip-Over: If, after any person has become an Acquiring
Person (other than pursuant to a Qualifying
Tender Offer), (1) the Company is involved
in a merger or other business combination in
which the Company is not the surviving
corporation or its Common Stock is exchanged
for other securities or assets, or (2) the
Company and/or one or more of its
subsidiaries sell or otherwise transfer
assets aggregating more than 50% of the
assets or generating more than 50% of the
operating income or cash flow of the Company
and its subsidiaries, taken as a whole, with
such Acquiring Person, then each Right will
entitle the holder to purchase, for the
Purchase Price, a number of shares of common
stock of the other party to such business
combination or sale (or in certain
circumstances, an affiliate) having a market
value of twice the Purchase Price.
Exchange: At any time after any person has become an
Acquiring Person, a majority of the Board of
Directors may exchange all or part of the
Rights (other than the Rights beneficially
owned by the Acquiring Person and certain
affiliated persons) for shares of Common
Stock at an exchange ratio of one share of
Common Stock per Right.
Redemption: Subject to the applicable provisions in the
Company's certificate of incorporation and
bylaws, the Board of Directors may redeem
all of the Rights at a price of $0.001 per
Right at any time prior to the close of
business on the tenth day following the date
of the public announcement that any person
has become an Acquiring Person. Thereafter,
the Rights may not be redeemed. The
Company's right of redemption may be
reinstated if an Acquiring Person reduces
his beneficial ownership to 14% or less of
the outstanding shares of Common Stock in a
transaction or series of transactions not
involving the Company. Immediately upon the
action of the Board of Directors ordering
redemption of the Rights, the Rights will
terminate and the only right of the holders
of the Rights will be to receive the
redemption price thereof.
Expiration: The Rights will expire on the tenth (10th)
anniversary of the Effective Date, unless
earlier exchanged or redeemed.
Amendments: Prior to the Distribution Date, the Rights
Agreement may be amended in any respect,
other than to change the Redemption Price,
the Expiration Date, the Purchase Price or
the number of shares of Preferred Stock for
which a Right is exercisable.
After the Distribution Date, the Rights
Agreement may be amended in any respect that
does not adversely affect the Rights holders
(other than any Acquiring Person and certain
affiliated persons).
C-3
After any person has become an Acquiring
Person, the Rights Agreement may be amended
only with the approval of a majority of the
Board of Directors.
Voting Rights: Rights holders have no rights as a
stockholder of the Company, including the
right to vote and to receive dividends.
Antidilution Provisions: The Purchase Price payable, and the number
of shares 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 (1) in the event of a stock
dividend on, or a subdivision, combination
or reclassification of, the Preferred Stock,
(2) 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 (3)
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 of subscription rights or
warrants.
The number of outstanding Rights and the
number of 1/100ths 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 subdivisions,
consolidations or combinations of the Common
Stock occurring prior to the Distribution
Date.
With certain exceptions, no adjustment in
the Purchase Price will be required until
cumulative adjustments amount to at least 2%
of the Purchase Price. No fractional shares
of Preferred Stock will be issued (other
than fractions which are integral multiples
of 1/100th of a share of a Preferred Stock),
and in lieu thereof, an adjustment in cash
will be made based on the market price of
the Preferred Stock on the last trading date
prior to the date of exercise.
Preferred Stock: The dividend and liquidation rights of the
Preferred Stock are designed so that the
value of one one-hundredth of a share of
Preferred Stock issuable upon exercise of
each Right will approximate the same
economic value of one share of Common Stock,
including voting rights. Shares of Preferred
Stock issuable upon exercise of the Rights
will not be redeemable. Each share of
Preferred Stock will entitle the holder to a
minimum preferential dividend of $1.00 per
share, but will entitle the holder to an
aggregate dividend payment of 100 times the
dividend declared on each share of Common
Stock. In the event of liquidation, each
share of Preferred Stock will be entitled to
a minimum preferential liquidation payment
of $1.00, plus accrued and
C-4
unpaid dividends and distributions thereon,
but will be entitled to an aggregate payment
of 100 times the payment made per share of
Common Stock. In the event of any merger,
consolidation or other transaction in which
Common Stock is exchanged for or changed
into other stock or securities, cash or
other property, each share of Preferred
Stock will be entitled to receive 100 times
the amount received per share of Common
Stock.
Each share of Preferred Stock will be
entitled to 100 votes on all matters
submitted to a vote of the stockholders of
the Company, and shares of Preferred Stock
will generally vote together as one class
with the Common Stock and any other voting
capital stock of the Company on all matters
submitted to a vote of the Company's
stockholders. Further, whenever dividends on
the Preferred Stock are in arrears in an
amount equal to six quarterly payments, the
Preferred Stock, together with any other
shares of preferred stock then entitled to
elect directors, shall have the right, as a
single class, to elect one director until
the default has been cured.
Taxes: While the dividend of the Rights will not be
taxable to stockholders or to the Company,
stockholders or the Company may, depending
upon the circumstances, recognize taxable
income in the event that the Rights become
exercisable as set forth above.
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